EVIDENCE

August 8, 2019

I. Rule 128, Rules of Court

A. Definition of Evidence

Section1. Evidence Defined - Evidence is the means, sanctioned by these rules, of ascertaining
in a judicial proceeding the truth respecting a matter of fact.

## WHEN EVIDENCE IS NECESSARY

Evidence is the means of proving a fact. It becomes necessary to present evidence in a case when the
pleadings filed present factual issues. Factual issues arise when a party specifically denies material
allegations in the adverse party’s pleading. These are the issues which the judge cannot resolve without
evidence being presented thereon. Thus, whether a certain thing exists or not, whether a certain act
was done or not, whether a certain statement was uttered or not, are questions of fact that require
evidence for their resolution. Questions of fact exist when the doubt or difference arises as to the truth
or falsehood of alleged facts. Other than factual issues, the case invariably presents legal issues. On
the other hand, a question of law exists when the doubt or difference arises as to what the law is on a
certain state of facts. Legal issues are resolved by simply applying the law or rules applicable, or
interpreting the law applicable considering the facts of the case. Generally, no evidence need be
presented on what the applicable law is. Everyone, including the judge, is presumed to know the law.

When the parties’ pleadings fail to tender any issue of fact, either because all the factual allegations
have been admitted expressly or impliedly (as when a denial is a general denial), there is no need of
conducting a trial, since there is no need of presenting evidence anymore. The case is then ripe for
judicial determination, either through a judgment on the pleadings2 or by summary judgment. ##

B. Familiarization of Terms

Relevant Evidence - if it has any value in reason as tending to prove any matter provable in an
action. Evidence is relevant when it has a tendency in reason to establish the probability or improbability
of a fact
in issue. (Sec. 4, Rule 128)

Material Evidence - if it is directed to prove a fact in issue as determined by the rules of

substantive law and pleadings. (Wigmore on Evidence)

## Admissible Evidence - if it is relevant to the issue and is not excluded by law or by the Rules
of Court. ##

Competent/Credible Evidence - if it is not only admissible but also believable and used by the
court in deciding a case.

Direct Evidence - that which proves the fact in dispute without the aid of any inference or
presumption. Example: In case of arson, that the witness saw the defendant apply the torch which
lighted the fire.

Circumstantial Evidence - proof of facts from which, taken collectively, the existence of the
particular fact in dispute may be inferred as a necessary or probable consequence. Such evidence is
founded on experience and observed facts and coincidences establishing a connection between the
known and proven facts and the facts which are sought to be proved.
 Expert Evidence - Testimony related to a professional or scientific subject. It is based on training
and experience in a subject area. The expert must give their opinion to aid the court in a decision or
judgement. They are questioned before being allowed to testify.

Prima Facie Evidence - that which suffices for the proof of a particular fact, until
contradicted and overcome by other evidence.
Example. If notice of non-payment by the drawee bank is not sent to the maker
or drawer of the bum check, or if there is no other proof as to when such notice was received by the
drawer, then the presumption of knowledge as provided in Section 2 of B.P. 22 cannot arise, since
there would simply be no way of reckoning the crucial five-dayperiod.(Rico vs. People, G.R.
137191,Nov. 18, 2002)

Conclusive Evidence - that which is incontrovertible or one which the law does not allow it to be
contradicted. It is insurmountable evidence.

Cumulative Evidence - additional evidence of the same kind bearing on the same
point.
- Example: When testimony has been given by one or more witnesses as to an
assault and other witnesses are produced to testify to the same state of facts and to no new fact, the
evidence given by such witnesses is merely cumulative.

Corroborative Evidence - additional evidence of a different kind and character tending

to prove the same point. While cumulative is additional evidence of the SAME kind and character,
corroborative is also additional evidence but of
DIFFERENT kind and character. (Jones on Evidence)

Best/Primary Evidence - that which affords the greatest certainty of the fact in question.

Secondary Evidence - that which is necessarily inferior to primary evidence and shows on its
face that better evidence exists.

Factum probans - the material evidencing the proposition. It is the fact by which the factum
probandum is established.

Factum probandum - the ultimate fact sought to be established. It may be ascertained in:
1. pleadings submitted by the parties
2. pre-trial order
3. issues which are tried with the express or implied consent of the parties. (Sec. 5, Rule 10)

NOTE: If fact is admitted, there is no more factum probandum because there is no fact in issue.

Factum probandum Factum probans

"ultimate facts" ”intermediate facts"
Proposition to be established Material evidencing the proposition
Hypothetical Existent

Collateral facts - Collateral facts are those which are unconnected, or only remotely connected,
with the issue or matter in dispute. Something that is secondary and subordinate to the main issue. As
no fair and reasonable inference can be drawn from such facts, they are inadmissible in evidence.
- A matter is collateral when it is on a “parallel or diverging line, merely “additional”
or “auxiliary.” This term connotes an absence of a direct connection between the evidence and the
matter in dispute.

Real/Object Evidence - that which is addressed to the senses of the court, as where the objects
are exhibited for the personal observation of the judge. It is also called autopic proference (evidence of
one’s own senses)

Rebuttal Evidence - that which is given toexplain, repel, counteract or disprove facts given in
evidence by the adverse party.
 ## Sur-rebuttal Evidence - that which is given to explain, repel, counteract or disprove facts
introduced in rebuttal. ##

Positive Evidence - when the witness affirms that a fact did or did not occur, it is entitled to
greater weight since the witness represents of his personal knowledge the presence or absence of a
fact.

Negative Evidence - when the witness states that he did not see or know the occurrence of a
fact there is total disclaimer of personal knowledge.

C. Distinguish:

Admissibility of evidence vs Weight of evidence

Admissibility of evidence - Question of whether certain pieces of evidence are to be considered

at all.

Weight of evidence / Probative value - Question of whether certain pieces of evidence are to be
considered at all.

Proof vs Evidence

Proof - The effect when the requisite quantum of evidence of a particular fact has been duly
admitted and given weight. The probative effect of evidence

Evidence - The mode and manner of proving competent facts in judicial proceedings. The means
of proof

Proof is not the evidence itself. There is proof only because of evidence. It is merely the probative
effect of evidence and is the conviction or persuasion of the mind resulting from consideration of the
evidence. On the other hand, evidence is the medium or means by which fact is proved or disproved.
Proof is the effect of evidence because without evidence there is no proof.

D. Scope (Sec 2, Rule 128)

Section 2. Scope - The rules of evidence shall be the same in all courts and in all trials and
hearings, except as otherwise provided by law or these rules. (Principle of Uniformity)

Cases:

Reyes vs CA, 216 SCRA 25 (1992)

Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION

G.R. No. 96492 November 26, 1992

ROMEO REYES, ANGEL PARAYAO, and EMILIO MANANGHAYA, petitioners,
vs.
THE COURT OF APPEALS, EUFROCINA DE LA CRUZ and VIOLETA DELOS REYES, respondents.

NOCON, J.:
Petitioners Romeo Reyes, Angel Parayao and Emilio Mananghaya question the respondent Court's
decision promulgated on November 22, 1990, 1 which affirmed with modification the agrarian court's
decision promulgated January 10, 1990,2 which ordered them and the other defendants therein to,
among others, restore possession of the disputed landholding to private respondent, Eufrocina Vda.
dela Cruz. Said respondent court's decision is now final and executory as to Olympio Mendoza and
Severino Aguinaldo, the other petitioners in the respondent court, since they did not appeal the same.
Since petitioners do not dispute the findings of fact of the respondent Court, the same shall be quoted
verbatim and are as follows:
It appears from the records that Juan Mendoza, father of herein defendant Olympio Mendoza, is the
owner of Farm Lots Nos. 46 and 106, Block 2, Psd-38453 of the Bahay Pare Estate, Bahay Pare,
Candaba, Pampanga, with an area of 23,000 square meters and 19,000 square meters, respectively.
Devoted to the production of palay, the lots were tenanted and cultivated by Julian dela Cruz, husband
of plaintiff Eufrocina dela Cruz. Julian died on September 25, 1979.
In her complaint, Eufrocina alleged that upon the death of Julian, she succeeded him as bona fide
tenant of the subject lots; that between July 7 to July 15, 1984, Olympio Mendoza, in conspiracy with
the other defendants, prevented her daughter Violeta and her workers through force, intimidation,
strategy and stealth, from entering and working on the subject premises; and that until the filing of the
instant case, defendants had refused to vacate and surrender the lots, thus violating her tenancy rights.
Plaintiff therefore prayed for judgment for the recovery of possession and damages with a writ of
preliminary mandatory injunction in the meantime.
Defendants Reyes, Parayao, Aguinaldo and Mananghaya, duly elected and/or appointed barangay
officials of Bahay Pare, Candaba, Pampanga, denied interference in the tenancy relationship existing
between plaintiff and defendant Mendoza, particularly in the cultivation of the latter's farm lots. Claiming
that they have always exercised fairness, equity, reason and impartiality in the discharge of their official
functions, they asked for the dismissal of the case and claimed moral damages and attorney's fees in
the total amount of P165,000.00 (Answer with Counterclaim, Records, pp. 48-51).
For his part, defendant Mendoza raised abandonment, sublease and mortgage of the farm lots without
his consent and approval, and non-payment of rentals, irrigation fees and other taxes due the
government, as his defenses. He also demanded actual and exemplary damages, as well as attorney's
fees (Answer, pp. 77-78).
During the pendency of the case in the lower court, Mendoza of the case in the lower court, Mendoza
was in possession of the subject lots and had cultivated the same. Upon motion of plaintiff, the court
directed its Deputy Sheriff to supervise the harvesting of the palay crops, to cause the threshing thereof
and to deposit the net harvest (after deducting from the expenses incurred), in a bonded warehouse of
the locality subject to the disposition of the court. 3
The respondent Court rendered judgment affirming the appealed agrarian court's decision with the
modification that Lot 106 is not covered by it.
The dispositive portion of the appealed decision, which was modified, states as follows:
WHEREFORE, judgment is hereby rendered, in favor of plaintiff and against defendants:
On the Mandatory Injunction:
1. Ordering said defendants to restore possession of the landholding subject of the action to the plaintiff
and enjoining said defendants and any person claiming under them to desist from molesting them or
interfering with the possession and cultivation of the landholding descriptive in paragraph 3 of the
complaint, to wit:
Farm Lots Nos. 46 and 106, Block 2, Psd-38453 of the Bahay Pare Estate, Bahay Pare, Candaba,
Pampanga, with a total area of 23,969 square meters, more or less, owned by a certain Juan Mendoza,
and devoted principally to the production of palay, as evidenced by a Certification from the Ministry of
Agrarian Reform issued on July 30, 1984.
2. a) Ordering the defendants to vacate the premises of the two landholding in question and to respect
the tenancy rights of plaintiff with respect to the same;
b) Ordering defendants, jointly and severally to pay unto plaintiff 220 cavans of palay or its equivalent
in cash of P33,000.00 from the principal crop year of 1984, and every harvest time until defendants
finally vacate and surrender possession and cultivation of the landholding in question to plaintiff.
c) the prayer for moral damages, not having been sufficiently proved, the same is denied.
d) Ordering defendants jointly and severally, to pay the costs of suit.
The awards herein provided should first be satisfied from the deposits of the harvests ordered by the
Court from which the planting and harvesting expenses have been paid to defendant Olympio
Mendoza; and if said net deposits with the Court or the warehouses as ordered by the Court are
insufficient, then the balance should be paid by defendants, jointly and severally. 4
Defendants who are the petitioners in this case, in a Petition for Review on Certiorari, present for the
consideration of the Court:
[T]he lone issue of whether or not they can be held liable, jointly and severally, with the other
defendants, for the harvests of the litigated property, Lot No. 46, or the money equivalent thereof
starting from the principal crop years of 1984 and every harvest time thereafter until the possession
and cultivation of the aforestated landholding are finally surrendered to the private respondent. 5
It is the position of petitioners that they are not liable jointly and severally with Olympio Mendoza and
Severino Aguinaldo because the present petition involves Lot No. 46, Block 2, Psd-38453 of the bahay
Pare Estate, bahay Pare, Candaba, Pampanga and not Lot No. 106 of the estate, which lot was
purchased by petitioner Romeo Reyes from Olympio Mendoza's father, Juan, and which he later
donated to the barangay Bahay Pare of Candaba, Pampanga, for the construction of the Bahay Pare
Barangay High School. 6 As to their supposed participation in the dispossession of private respondent
from the disputed landholding, petitioners present the September 30, 1987 Resolution of Investigating
Fiscal Jesus M. Pamintuan, as approved by Pampanga Provincial Fiscal Villamor I. Dizon, in I.S. No.
8576, 7 wherein private respondent's complaint against petitioners and the other defendants in the
agrarian court for violation of P.D. 5838 was dismissed, to show that private respondent's "point is
already settled and considered closed." 9 lastly, petitioners claim that they were included in the present
controversy so that their political career would be destroyed.10
Private respondents deny petitioners' allegations and contend that it was petitioners who conspired with
Olympio Mendoza and Severino Aguinaldo in ejecting them not only from Lot No. 46 but also from Lot
No. 106. They maintain that it was in Farmlot No. 46 from where they were ejected and dispossessed,
so much so that even if Farmlot No. 106 was removed by the Court of Appeals from the judgment, as
Farmlot No. 46 was harvesting palay worth at least P33,000.00 per year since 1989, private
respondents, who are entitled to the possession and peaceful enjoyment of the farmlot as provided for
in Section 23 of the Agrarian Reform Law, should be compensated for the lost income by the petitioners
who are solidarily liable with Olympio Mendoza and Severino Aguinaldo. 11
We find for the private respondents.
It is clear that petitioners are asking Us to re-examine all the evidence already presented and evaluated
by the trial court and re-evaluated again by the respondent appellate court. Said evidence served as
basis in arriving at the trial court and appellate court's findings of fact. We shall not analyze such
evidence all over again but instead put finis to the factual findings in this case. Settled is the rule that
only questions of law may be raised in a petition for review on certiorari under Rule 45 of the Rules of
Court 12 absent the exceptions which do not obtain in the instant case. 13
We agree with the appellate court in its retiocination, which We adopt, on why it has to dismiss the
appeal. Said the Court:
In her Complaint, plaintiff-appellee alleged that she "is the tenant of Farm Lots Nos. 46 and 106 Block
2, Psd-38453 of the Bahay Pare Estate, Bahay Pare, Candaba, Pampanga, with a total area of 23,969
square meters, more or less . . ." (Complaint, Record, vol. 1, p.1). However, during Violeta's testimony,
she clarified that actually only Lot No. 106, which contains an area of P19,000 square meters, is not
included in this controversy (T.S.N., August 10, 1989, p. 5; May 8, 1989, p. 12). This statement was
corroborated by plaintiff's counsel, Atty. Arturo Rivera, who informed the court that the 19,000 square
meter lot is subject of a pending case before the MTC of Sta. Ana, Pampanga (Ibid., p. 15). The
inconsistency between the averment of the complaint and the testimony of the witness should not only
because there was no showing that she intended to mislead defendants and even the trial court on the
subject matter of the suit. It would in the complaint since together with Lot 106 had been include in the
complaint since together with Lot 46, it is owned by Olympio's father.
We also concur with the trial court's finding on the participation of the other appellants in the
dispossession of appellee. They not only knew Olympio personally, some of them were even asked by
Olympio to help him cultivate the land, thus lending credence to the allegation that defendant Olympio,
together with his co-defendants, prevented plaintiff and her workers from entering the land through
"strong arm methods". (Decision of RTC, records, vol. II p. 564).
Finally, we rule that the trial court did not err when it favorably considered the affidavits of Eufrocina
and Efren Tecson (Annexes "B" and "C") although the affiants were not presented and subjected to
cross-examination. Section 16 of P.D. No. 946 provides that the "Rules of Court shall not be applicable
in agrarian cases even in a suppletory character." The same provision states that "In the hearing,
investigation and determination of any question or controversy, affidavits and counter-affidavits may be
allowed and are admissible in evidence".
Moreover, in agrarian cases, the quantum of evidence required is no more than substantial evidence.
This substantial evidence rule was incorporated in section 18, P.D. No. 946 which took effect on June
17, 1976 (Castro vs. CS, G.R. No. 34613, January 26, 1989). In Bagsican vs. Hon. Court of Appeals,
141 SCRA 226, the Supreme Court defined what substantial evidence is:
Substantial evidence does not necessarily import preponderant evidence, as is required in an ordinary
civil case. It has been defined to be such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion and its absence is not shown by stressing that there is contrary
evidence on record, direct or circumstantial, for the appellate court cannot substitute its own judgment
or criteria for that of the trial court in determining wherein lies the weight of evidence or what evidence
is entitled to belief.14
WHEREFORE, finding no reversible error in the decision appealed from, the petition is hereby DENIED
for lack of merit. The decision of the Court of Appeals promulgated on November 22, 1990 is
AFFIRMED in toto. Costs against the petitioners.
SO ORDERED.
Narvasa, C.J., Feliciano, Regalado, Nocon and Campos, JJ., concur.

People vs Turco, 337 SCRA 714 (2000)

G.R. No. 137757 August 14, 2000

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RODEGELIO TURCO, JR., aka "TOTONG", accused-appellant.
DECISION
MELO, J.:
Accused-appellant Rodegelio Turco, Jr. (aka "Totong") was charged with the crime of rape in Criminal
Case No. 2349-272, Branch I of the Regional Trial Court of Basilan of the 9th Judicial Region, stationed
in Isabela, Basilan, under the following Information:
That on or about the 8th day of July, 1995, and within the jurisdiction of this Honorable Court, viz., at
Km. 6, Begang Barangay, Municipality of Isabela, Province of Basilan, Philippines, the above-named
accused, by the use of force, threat and intimidation, did then and there willfully, unlawfully and
feloniously grab the undersigned complainant by her neck, cover her mouth and forcibly make her lie
down, after which the said accused mounted on top of her and removed her short pant and panty.
Thereafter, the said accused, by the use of force, threat and intimidation, inserted his penis into the
vagina of the undersigned complainant and finally succeeded to have carnal knowledge of her, against
her will.
CONTRARY TO LAW.
(p. 6, Rollo.)
At his arraignment on November 8, 1995, accused-appellant entered a plea of not guilty, after which
trial ensued.
The prosecution's version of the generative facts, as gathered from the testimony of its witnesses -
Alejandra Tabada, mother of the victim; PO3 Celso Y. Tan Sanchez, the police officer who investigated
the case; Orlando Pioquinto, brother-in-law of the victim; Escelea Tabada, the 13-year-old victim; and
Felicitas delos Santos Timorata, the medical record clerk who used to be the medical officer under Dr.
Rimberto Sanggalang, the physician who physically examined the victim after the incident - is
abstracted in the Appellee's Brief in this wise:
Escelea Tabada and appellant Rodegelio Turco were neighbors in lower Begang, Isabela, Basilan,
their houses being only about sixty (60) meters apart (p. 6 and p. 8, t.s.n.; August 19, 1996). Escelea
was then staying with her father, Alejandro and her deaf grandmother, Perseveranda (p. 9, id). She
was twelve (12) years and six (6) months old at the time of incident, having been born on December 3,
1982 (p. 3, id).
The nightmare of Escelea began in the evening of July 1995. At around seven o'clock (7:00 p.m.) in
the evening, Escelea, after (pp. 11-12, id) [sic]. She was accompanied by a certain Cory Macapili, the
granddaughter of her neighbor, Leonora Cabase (p. 13, id).
Cory left upon reaching Escelea's home. Escelea went upstairs to join her grandmother who was
already sleeping in the room. About to enter the said room, Escelea heard a call from outside. She
recognized the voice and when she asked who was it, the party introduced himself as the appellant,
viz:
Q. After you heard your named was mentioned, what did you say if any?
A. I answered: "Who is that?"
Q. Did the person calling your name answer you?
A. I heard, sir, "me Totong".
Q. When you say the person who called your name "Lea" was "Totong" you are referring to whom?
A. Rodegelio, sir.
(p. 15, id; Underscoring supplied)
She recognized appellant Turco immediately as she had known him for four (4) years and appellant is
her second cousin (p. 34, id). Unaware of the danger that was about to befall her, Escelea forthwith
opened the door. Appellant Turco, with the use of towel, covered Escelea's face. Appellant, aside from
covering the victim's mouth, even placed his right hand on the latter's neck.
Appellant bid Eseelea to walk. When they reached a grassy part, near the pig pen which was about
twelve (12) meters away from the victim's house, appellant lost no time in laying the victim on the grass,
laid on top of the victim and took off her shortpants and panty (pp. 17-19, id). Escelea tried to resist by
moving her body but to no avail. Appellant succeeded in pursuing his evil design-by forcibly inserting
his penis inside Escelea's private part. The victim felt terrible pain (p. 20, id). Still dissatisfied, after
consummating the act, appellant kissed and held the victim's breast. Thereafter, appellant threatened
her that he will kill her if she reports the incident to anybody, thus:
"He threatened me, that if you will reveal the incident to anybody I will kill you.
(p. 21, id; Underscoring supplied)
Finally, after having satisfied his lust, appellant hurriedly went home. Escelea, on the other hand, upon
reaching home, discovered that her shortpants and panty were filled with blood (p. 23, id). For almost
ten (10) days, she just kept to herself the harrowing experience until July 18, 1995 when she was able
to muster enough courage to tell her brother-in-law, Orlando Pioquinto, about the said incident. Orlando
in turn informed Alejandro, the victim's father, about the rape of his daughter. Alejandro did not waste
time and immediately asked Escelea to see a doctor for medical examination (p. 27, id).
Escelea was accompanied by her sister Clairlyn Pioquinto to the Provincial Hospital. She was examined
by Dr. Rimberto Sanggalang. After the issuance of the medical certificate, they went to Isabela
Municipal Station and filed Escelea's complaint against appellant (pp. 30-33, id).
(pp. 97-100, Rollo.)
The defense presented Leonora Cabase, neighbor of accused-appellant; her granddaughter Corazon
Macapili, and accused-appellant himself. Accused-appellant denied the charge. The defense that the
victim and him were sweethearts was also advanced. Leonora Cabase mentioned this in her direct
testimony.
In reaching a moral certainty of guilt, the trial court held:
While the accused denies the charge of rape, his witness, Mrs. Leonora Cabase was trying to project
that the complainant Escelea Tabada and the accused Rodegelio Turco, Jr. are sweethearts. In the
case of People vs. Casil, 241 SCRA 285, the Supreme Court agrees with the trial court that the
"sweetheart story" was a mere concoction of appellant in order to exculpate himself from criminal
liability. The claim of voluntary love affair is an affirmative defense, the allegation of a love affair needed
proof. Nowhere in the record of the case that the same was substantiated, though mentioned by Mrs.
Leonora Cabase. The accused and/or his witnesses must present any token of the alleged relationship
like love notes, mementos or pictures and the like. Such bare allegation of the defense, not to mention
its utter lack of proof, is incredulous. It is hard to understand how such a relationship could exculpate a
person from the rape of a terrified young child barely a little over the age of twelve (12) years old.
Indeed, a love relationship, even if true, will not necessarily rule out force (People vs. Sergio Betonio,
G.R. No. 119165, September 26, 1997, Case Digests of Supreme Court Decisions, Vol. 36, No. 3,
September 1-29, 1997, pp. 695-697).
There are guiding principles in rape cases as cited in People vs. Victor Abrecinoz, G.R. No. 122474,
October 17, 1997, Case Digests of Supreme Court Decisions, Vol. 37, No. 1, October 2-31, 1997, pp.
157-160, and they are: (1) an accusation for rape can be made with facility, it is difficult to prove but
more difficult for the person accused, though innocent, to disprove it; (2) in view of the intrinsic nature
of the crime of rape where two persons are usually involved, the testimony of the complainant must be
scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own
merit, and cannot be allowed to draw strength from the weakness of the evidence for the defense.
Thus, the credibility of the complainant is a paramount importance, and if her testimony proves credible,
the accused may be convicted on the basis thereof.
It should be noted that the complainant and the accused are second degree cousin or they are sixth
civil degree relatives. The mother of the accused is a first degree cousin of the father of the complainant.
In the culture of the Filipino family on extended family, the relationship between the complainant and
the accused being only second degree cousin, it becomes the duty of an older relative (the accused)
to protect and care for a younger relative (the complainant). It is very hard to understand or comprehend
why a cousin files a case of rape against her cousin, unless it is true. There is no showing that there
was compelling motive why the case be filed against the accused, except that the rape really happened.
xxx
xxx
xxx
It is noted that there was no underlying reason why the complainant and/or her father would bring an
action against the accused, except that the accused had raped Escelea Tabada on July 8, 1995, at
about 7:00 o'clock in the evening. If it were not true that she was raped by the accused, why would she
expose herself to an embarrassment and traumatic experience connected with the litigation of this rape
case. We are aware of the Filipino culture especially on virginity. We likened it as a mirror, once dropped
and broken, it can no longer be pieced together ... not ever. This is true among the Filipino folks that
the complainant belonged, poor and helpless and everything is entrusted to God. The complainant is a
young girl, a little over twelve (12) years old and almost illiterate, having attended school up to Grade
III only. So poor that her family cannot even buy the cheapest television set and she has to go to a
house of a neighbor for the meager joy of seeing a television show ... and expose herself to the danger
of the dark night. All said, it is very difficult to be poor. Going to the court is a shout for help ... let us try
to hear it.
xxx
xxx
xxx
WHEREFORE, under the above circumstances and evaluation, this court finds the accused "GUILTY"
of rape and sentences him to suffer the penalty of reclusion perpetua and to indemnify the complainant
the amount of Fifty Thousand Pesos (P50,000.00) for moral damages without subsidiary imprisonment
in case of insolvency.
xxx
xxx
xxx
(pp. 33-37, Rollo.)
In accused-appellant's brief, he assigns the following alleged errors:
I
THAT THE HONORABLE COURT A QUO SERIOUSLY ERRED IN FINDING THE ACCUSED GUILTY
OF RAPE BASED ON THE TESTIMONIES OF THE COMPLAINANT ESCELEA TABADA AND HER
WITNESS.
II
THAT THE HONORABLE COURT A QUO SERIOUSLY ERRED IN RULING THAT THE
PROSECUTION, BASED ON THE AFFIDAVITS AND ORAL TESTIMONIES OF THE COMPLAINANT
AND ITS WITNESSES WAS ABLE TO PROVED [sic] BEYOND REASONABLE DOUBT THAT THE
ACCUSED COMMITTED THE CRIME OF RAPE AGAINST THE COMPLAINANT.
III
THAT THE HONORABLE COURT A QUO SERIOUSLY ERRED IN SENTENCING THE ACCUSED
TO SUFFER THE PENALTY OF RECLUSION PERPETUA AND TO INDEMNIFY THE
COMPLAINANT THE AMOUNT OF P50,000.00 REPRESENTING MORAL DAMAGES BASED ON
THE EVIDENCES PRESENTED BY THE PROSECUTION.
(p. 101, Rollo.)
He particularly argues that his conviction is not supported by proof beyond reasonable doubt
considering that other than the written statement of the complainant before the Police Station of Isabela
and before the Clerk of Court of the Municipal Trial Court, and her testimony during direct examination,
no other evidence was presented to conclusively prove that there was ever rape at all; that she only
presumed that it was accused-appellant who attacked her since she admitted that immediately upon
opening the door, the perpetrator hastily covered her face with a towel; that nothing in her testimony
clearly and convincingly shows that she was able to identify accused-appellant as the perpetrator; that
complainant implicated accused-appellant only because her father forced her to do so; and lastly, that
no actual proof was presented that the rape of the complainant actually happened considering that
although a medical certificate was presented, the medico-legal officer who prepared the same was not
presented in court to explain the same.
We agree with the trial court.
As aptly recalled by the trial court, there are three guiding principles in the review of rape cases, to wit:
(1) an accusation of rape can be made with facility; it is difficult to prove but more difficult for the person
accused, although innocent, to disprove; (2) in view of the intrinsic nature of the crime of rape where
only two persons are usually involved, the testimony of the complainant is scrutinized with extreme
caution; and (3) the evidence for the prosecution stands or falls on its own merits and cannot be allowed
to draw strength from the weakness of the defense (People vs. Gallo, 284 SCRA 590 [1998]; People
vs. Balmoria, 287 SCRA 687 [1998]; People vs. Auxtero, 289 SCRA 75 [1998]; People vs. Sta. Ana,
291 SCRA 188 [1998]).
Accordingly, the primordial consideration in a determination concerning the crime of rape is the
credibility of complainant's testimony.
The trial court described complainant as "a young girl, a little over twelve (12) years old and almost
illiterate, having attended school up to Grade III only. So poor that her family cannot even buy the
cheapest television set and she has to go to a house of a neighbor for the meager joy of seeing a
television show ... and exposes herself to the danger of the dark night." But verily, age, youth, and
poverty are not guarantees of credibility. Hence, thorough scrutiny must be made by the Court.
Complainant narrated the incident in this wise:
Q While you went upstairs and about to enter the room of your grandmother, did you hear anything?
A Yes, sir.
Q What was that?
A I heard a call, sir.
Q How was the call made?
A It is just by saying: "Lea".
Q After you heard your name was mentioned, what did you say if any?
A I answered: "Who is that?"
Q Did the person calling your name answer you?
A I heard, sir, "me Totong".
Q When you say the person who called your name "Lea" was "Totong", you are referring to whom?
A Rodegelio, sir.
Q When you say "Rodegelio", you are referring to Rodegelio Turco, Jr., the accused in this case?
A Yes, sir.
Q After the person calling your name "Lea" identified himself as "Totong", what did you do?
A I opened the door, sir.
Q And when you opened the door, what happened next?
A Totong with the use of towel covered my face, sir.
Q Aside from covering your face with a towel, what else did he do?
A He covered my mouth, sir.
Q Aside from covering your mouth, what else did he do?
A He placed his right hand on my neck, sir.
Q Aside from placing his right hand ... when he placed his right hand on your neck, where was he?
Was he infront or behind?
A He was at my back, sir.
Q After placing his right hand on your neck behind you, what did "Totong" do next with that position?
A He covered my mouth, sir.
Q After covering your mouth and face, what did he do next?
A He told me to walk, sir.
Q Where did he bring you?
A I don't know exactly where he brought me, sir.
Q But you know very well that he brought you to a certain place?
A I don't know exactly the place where he brought me, sir.
Q Is it far from your house where you were forcibly taken?
A Yes, sir.
Q Do you have a copra kiln?
ATTY. G.V. DELA PENA III:
The witness already answered that she does not know where she was brought, leading, Your Honor.
COURT: (Questioning the witness)
Q According to you, from your house you were brought by the accused to a place which you do not
know?
A Yes, Your Honor.
Q What place?
A Pig pen, Your Honor.
Q Do you know the owner, of that pig pen?
A Our pig pen, Your Honor.
Q Who owned that pig pen?
A My father, Your Honor.
Q How far is that pig pen to your house?
A (From this witness stand to that road outside of this building).
COURT:
It is about 12 meters. Alright, continue.
PROSECUTOR M.L. GENERALAO: (Continuing)
Q You stated in answer to the question of the Honorable Court that you were brought to the pig pen or
the place where you were sexually abused, were you place inside or outside?
ATTY. G.V. DELA PENA III:
Leading, Your Honor.
PROSECUTOR M.L. GENERALAO:
I will withdraw.
Q Will you please explain to the Court what particular place of the pig pen that you were brought by the
accused?
A Inside the grasses, sir.
Q When you were already inside the grasses near this pig pen, what did the accused do to you?
A He put me down, sir.
Q When you were already down on the ground, what did the accused do next?
A He mounted on me, sir.
Q And when the accused was already on top of you, what did he do next?
A He molested me, sir.
Q Before he molested you, did he remove anything from your body?
A Yes, sir.
Q What?
A My shortpants and panty, sir.
Q You stated that the accused while on top of you removed your pants and panty, did he totally remove
it from your body?
A Yes, sir.
Q After removing your shortpants and panty, what else did the accused do?
A He abused me, sir.
Q You said that he abused you, how did he abuse your?
A He put his private part inside my private part, sir.
Q When the accused was on top of you and he forcibly abused you, what did you do?
A I tried to move my body, sir.
Q While you were trying to move your body and while the accused was on top of you, what did the
accused do?
A He tried to insert his private part to my private part, sir.
Q And was he able to insert his private part?
A Yes, sir.
Q What did you feel when his private part was already inside your private part?
A I felt pain, sir.
Q Will you please explain why you felt when the private part of the accused was already inside your
private part?
A I felt pain when he already finished, sir.
Q By the way, before July 8, 1995, were you had been raped? Will you please tell us whether you have
already experienced or you have already your menstruation at that time?
A No, sir.
Q Now you stated to the Honorable Court ... after the accused had sexually abused you and you said
you felt pains after he consumated the sexual act, after that what did he do next after consumating the
act?
A After consumating his desire, he raised my panty and shortpants then he kissed me and hold my
nipple, sir.
Q After the accused had raised your shortpants and panty, embraced you, kissed you and hold your
breast, did he tell you anything?
A He threatened me, "that if you will reveal the incident to anybody I will kill you."
Q In what dialect? In Chavacano, sir.
A After the accused embraced you, kissed you and hold your nipple and threatened you in Chavacano
dialect, what happened next after that?
No more, sir.
(tsn, Aug. 19, 1996, pp. 14-22.)
On cross-examination, the victim did display some apparent confusion when the defense counsel asked
her about the events that transpired before the ill-fated July 8, 1995. The query prompted her to narrate
the incident prior to said date when she also watched television at the home of Leonora Cabase, and
that when she arrived home, accused-appellant came and called her "Lea" and when she asked who
was it, he answered "so Totong". When she asked what he wanted, he said he wanted to borrow a
guitar. She said that she could not lend him the guitar since her father was not yet around. He insisted
but to no avail, and hence he just went home. She went to sleep afterwards. On re-direct examination,
she clarified that when accused-appellant came to borrow the guitar on July 8, 1995, it was about 5:30
o'clock in the afternoon. Lastly, she said that the incident of the borrowing of the guitar and the incident
that transpired at 7 o'clock in the evening on July 8, 1995 were separate incidents.
Significantly, three things could be perceived: complainant's youth, her apparent confusion concerning
the events that transpired, and her fear of both accused-appellant and her father.
At the outset, it should be remembered that the declarations on the witness stand of rape victims who
are young and immature deserve full credence (People vs. Bernaldez, 294 SCRA 317 [1998]).
Succinctly, when the offended parties are young and immature girls from the ages of twelve to sixteen,
courts are inclined to lend credence to their version of what transpired, considering not only their relative
vulnerability but also the shame and embarrassment to which they would be exposed by court trial if
the matter about which they testified were not true (People vs. Clopino, 290 SCRA 432 [1998]). In
addition, we take cognizance of the trial court's observation on the segment of the Filipino society to
which the victim belongs - almost illiterate, having attended school up to the third grade only, and so
poor that she had to go to a neighbor's house to watch television, yet one who values her virginity which
like a "mirror, once dropped and broken ... can no longer be pieced together ... not ever," this being
"true among the Filipino folks [to which] complainant belonged, poor and helpless everything is
entrusted to God" (p. 35, Rollo).
The victim's relatively low level of intelligence explains the lapses in her testimony, having intermingled
two incidents. Nonetheless, it can easily be gathered from the record that the defense counsel may
have contributed to this confusion when he asked the victim what transpired "before" the incident (tsn,
August 19, 1996, p. 37). Minor lapses in a witness' testimony should be expected when a person
recounts details of an experience so humiliating and so painful to recall as rape (People vs. Gementiza,
285 SCRA 478 [1998]).Rape, as a harrowing experience, is usually not remembered in detail. For, such
an offense is not something which enhances one's life experience as to be worth recalling or reliving
but, rather, something which causes deep psychological wounds and casts a stigma upon the victim
for the rest of her life, which her conscious or subconscious mind would prefer to forget (People vs.
Garcia, 281 SCRA 463 [1997]). These lapses do not detract from the overwhelming testimony of a
prosecution witness positively identifying the malefactor (People vs. Baccay, 284 SCRA 296 [1998]).
Further, the testimony of a witness must be considered and calibrated in its entirety and not by truncated
portions thereof or isolated passages therein (People vs. Natan, 193 SCRA 355 [1991]).
The Court finds that the victim had no motive to falsely testify against accused-appellant. Her testimony
deserves the credence accorded thereto by the trial court (People vs. Luzorata, 286 SCRA 487 [1998]).
Pertinently, no woman, especially one of tender age, would concoct a story of defloration, allow an
examination of her private parts, and thereafter pervert herself by being subjected to a public trial if she
was not motivated solely by the desire to have the culprit apprehended and punished (People vs.
Taneo, 284 SCRA 251 [1998]).
Another point to consider is the blood relationship between accused-appellant and the victim. At this
juncture, we reiterate the trial court's observation thereon - the mother of accused-appellant being a
first degree cousin of the victim's father, that makes the victim and accused-appellant second degree
cousins or sixth civil degree relatives. Filipino culture, particularly in the provinces, looks at the extended
family as closely-knit and recognizes the obligation of an older relative to protect and take care of a
younger one. On the contrary, in the instant case, the victim initiated the prosecution of her cousin. If
the charge were not true, it is indeed difficult to understand why the victim would charge her own cousin
as the malefactor. Too, she having no compelling motive to file said case against accused-appellant,
the conclusion that the rape really happened is logically reinforced.
As regards the initial delay of the victim in reporting the rape incident, suffice it to state that the delay
and initial reluctance of a rape victim to make public the assault on her virtue is not uncommon (People
vs. Gallo, supra). In the case at bar, the victim's fear of her father who had moral ascendancy over her,
was explicit. She testified that she did not disclose the incident to her father because of fear both of her
father as well as of accused-appellant (tsn, August 19, 1996, pp. 23-24). Such reaction is typical of a
twelve-year-old girl and only strengthens her credibility.
The issue of credibility of the victim having been settled, there are a few points presented by the defense
that must be passed upon:
1. Other than their blood relationship, was there an intimate relationship between accused-appellant
and the victim? The theory initially advanced by the defense in the proceedings before the court a quo
is the "sweetheart theory". In this regard, .we agree with the trial court that the "sweetheart story" was
a mere concoction of accused-appellant in order to exculpate himself from criminal liability. In People
vs. Venerable (290 SCRA 15 [1998]), we held that the sweetheart theory of the accused was unavailing
and self-serving where he failed to introduce love letters, gifts, and the like to attest to his alleged
amorous affair with the victim. Hence, the defense cannot just present testimonial evidence in support
of the theory that he and the victim were sweethearts. Independent proof is necessary, such as tokens,
mementos, and photographs. It is likewise remarkable, a confession possibly of the bankruptcy of this
theory that accused-appellant has not insisted on this defense in his brief, seemingly abandoning this
line.
We, therefore, conclude that whatever familiarity and supposed closeness there was between accused-
appellant and the victim, is explained not by an intimate relationship but by their blood relationship.
Hence, it is noticeable that on the day of the incident, when accused-appellant called upon the victim
and the latter asked who he was, the victim knew right away that her caller was accused-appellant
when the latter replied "Si Totong".
Accused-appellant, in his direct testimony, tried to deny any blood relation with the victim Escelea
Tabada and touched on the apparent friendship between them, as follows:
Q You mentioned earlier that you know the complainant, why do you know the complainant Escelea
Tabada?
A I only know her when I was already in jail, sir.
Q You mean to say that you never knew the complainant before you were arrested?
A I do not know her, sir.
COURT: (Questioning the witness)
Q Why, are you not related to the Tabadas?
A No, Your Honor.
ATTY. G.V. DELA PENA III: (Continuing)
Q Have you ever seen the complainant in Begang?
A The complainant is at Begang, sir.
Q And you mentioned that you were not related with the complainant, Mr. Witness?
A Yes, sir, we are only close.
Q So, in other words, Mr. Witness, you and the complainant Escelea Tabada were already friends?
A Yes, sir.
(tsn, June 16, 1998, pp. 42-43.)
However, on cross-examination, he notably crumbled:
Q Now, you stated in your direct examination that you are not related to the Tabadas in San Antonio
Begang, Isabela, Basilan, is that right?
A Yes, sir, we are only close.
Q Is it not a fact Mr. Witness that your mother is the first cousin of the father of Escelea Tabada?
A They are cousins, sir.
Q So, indeed you are related to the Tabadas?
A Yes, sir.
Q So, when you said that you are not related to the Tabadas, you were not telling the truth?
A Yes, sir.
(ibid, p. 51.)
2. Accused-appellant argues that no actual proof was presented that the rape actually happened since
the medico-legal officer who prepared the medical certificate was not presented in court to explain the
same.
In People vs. Bernaldez (supra), the court a quo erred in giving weight to the medical certificate issued
by the examining physician despite the failure of the latter to testify. While the certificate could be
admitted as an exception to the hearsay rule since entries in official records (under Section 44, Rule
130, Rules of Court) constitute exceptions to the hearsay evidence rule, since it involved an opinion of
one who must first be established as an expert witness, it could not be given weight or credit unless
the doctor who issued it is presented in court to show his qualifications. We place emphasis on the
distinction between admissibility of evidence and the probative value thereof. Evidence is admissible
when it is relevant to the issue and is not excluded by the law or the rules (Section 3, Rule 128, Rules
of Court) or is competent. Since admissibility of evidence is determined by its relevance and
competence, admissibility is, therefore, an affair of logic and law. On the other hand, the weight to be
given to such evidence, once admitted, depends on judicial evaluation within the guidelines provided
in Rule 133 and the jurisprudence laid down by the Court. Thus, while evidence may be admissible, it
may be entitled to little or no weight at all. Conversely, evidence which may have evidentiary weight
may be inadmissible because a special rule forbids its reception (Regalado, Remedial Law
Compendium, Vol. II, 1998 ed., p. 550).
Withal, although the medical certificate is an exception to the hearsay rule, hence admissible as
evidence, it has very little probative value due to the absence of the examining physician. Nevertheless,
it cannot be said that the prosecution relied solely on the medical certificate (stating that there was
"[h]ymen rupture, secondary to penile insertion" as well as "foul-smelling discharges." The diagnosis
was "[r]uptured hymen secondary to rape" [p. 68, Record]). In fact, reliance was made on the testimony
of the victim herself which, standing alone even without medical examination, is sufficient to convict
(People vs. Topaguen, 369 SCRA 601 [1997]). It is well-settled that a medical examination is not
indispensable in the prosecution of rape (People vs. Lacaba, G.R. No. 130591, November 17, 1999;
People vs. Salazar, 258 SCRA 55 [1996]; People vs. Venerable, supra). The absence of medical
findings by a medico-legal officer does not disprove the occurrence of rape (People vs. Taneo, supra).
It is enough that the evidence on hand convinces the court that conviction is proper (People vs. Auxtero,
supra). In the instant case, the victim's testimony alone is credible and sufficient to convict.
As a final observation, it must be said that the amount awarded by the trial court in favor of Escelea
Tabada as indemnification (P50,000.00 for moral damages) for the rape is incomplete based on
established jurisprudence and must be modified. In People vs. Betonio (279 SCRA 532 [1977]), we
held that the award of P50,000.00 to the victim as indemnity for rape not committed or qualified by any
of the circumstances under the Death Penalty Law, needs no proof other than the conviction of the
accused for the raped proved. This is different from the P50,000.00 awarded as moral damages which
also needs no pleading or proof as basis thereof (People vs. Prades, 293 SCRA 411 [1998]).
WHEREFORE, the appealed decision is hereby AFFIRMED, with the MODIFICATION that accused-
appellant Rodegelio Turco, Jr. aka "Totong" is ordered to indemnify the offended party, Escelea
Tabada, in the amount of Fifty Thousand (P50,000.00) Pesos in addition to the sum of P50,000.00
already awarded by the trial court as moral damages.
SO ORDERED.
Vitug, Panganiban, Purisima, and Gonzaga-Reyes, JJ., concur.

Imperial Textile Mills, Inc. vs NLRC, 217 SCRA 237 (1993)

G.R. No. 101527

REGALADO, J.:
This original petition for certiorari seeks to annul the decision[1] of the National Labor Relations
Commission (hereafter, respondent commission), dated June 28, 1991, finding that herein private
respondent Angie Mendoza was illegally dismissed and awarding her three years backwages and
separation pay.

We quote the undisputed facts as found by respondent commission:

"Appellant Angie Mendoza had been employed with appellee since 1977. She rose from the ranks from
the position of secretary to the Finishing Department Head to secretary to the Executive Vice President,
and later to personnel manager up to March 7, 1986. Her latest salary was P6,190.00. In the latter part
of 1986, a new management group took over appellee. Appellant, who was on leave, found out about
the changes and consequently wrote the widow of the former president of appellee, to wit:
xxx

'Dear Mrs. Salazar:

'In compliance with my verbal promise and in abiding by the company rules and regulations, the
undersigned reported to your goodself on March 7, the expiration of an approved one month vacation
leave.

'It is sad to know that during my absence, major changes took place in ITM. There was a take-over of
new management, appointment and reorganization of new officers and other key positions have been
effected. Needless to say, the position of the undersigned as Personnel Manager was also filled up by
a newcomer.

'In view of the above circumstances, I deem it proper and wise to cease my employment; but with
equivalent separation pay from the company. I am happy to announce that I am one of the pioneer
employees, having employed (sic) in 1971 as secretary to then Finishing Dept. Head. Being an
experienced and competent secretary, after two months I rose to the position of secretary to the Exec.
Vice President. In January 1975, I was appointed to succeed and execute the duties and responsibilities
of the resigned Personnel Manager and at same time as secretary to the executives of the company.
During the period June 1984 to June 1985, I was appointed in the concurrent capacity as Personnel
Manager of Grand Alliance Mills, sister company of ITM.

'For fifteen years of stay, I could proudly say that I dedicated one-third of my life in serving the company
honestly and efficiently, my employment records can fully vouch for that.

'I sincerely hope that you will merit this request with your usual kind consideration and immediate
attention.'

Respectfully yours,
Angie S. Mendoza"
"On June 6, 1986, the instant complaint for illegal dismissal was filed. Complainant alleged that she
was dismissed without sufficient grounds after 14 years of service.

"In its defense, respondent averred that complainant voluntarily resigned and if she was terminated
such termination was due to valid and just grounds. Being a managerial employee she could be
terminated for loss of trust and confidence."[2]

Thereafter, the parties submitted their respective position papers. Petitioner then filed a motion to
dismiss[3] alleging that: (1) private respondent's position paper is unverified and should be stricken off
the record; and (2) complainant failed to appear despite notice, thereby depriving petitioner of its right
to cross-examine her. In an order[4] dated May 25, 1988, the labor arbiter dismissed the complaint
without prejudice, on the ground that complainant's absence deprived herein petitioner of the
opportunity to cross-examine her.

On appeal, respondent commission reversed the labor arbiter in a decision[5] dated October 28, 1988,
holding that under Article 221 of the Labor Code, respondent commission and the labor arbiter have
the authority to decide cases based on position papers and documents submitted by the parties without
resorting to technical rules of evidence; and that herein petitioner was not denied due process because
on the basis of the records of the case, an, intelligent decision could be arrived at without resorting to
a formal hearing. Petitioner went to this Court on a petition for certiorari, entitled "Imperial Textile Mills,
Inc. vs. National Labor Relations, et. al.," docketed as G.R. No. 86663, which was however dismissed
in our resolution[6] of February 15, 1989.

The case was thereafter remanded to the labor arbiter who subsequently rendered a decision[7] on
April 10, 1990 declaring the dismissal of complainant as legally effected on the ground that she resigned
voluntarily and that her dismissal was for a valid cause, that is, loss of trust and confidence. On appeal,
respondent commission rendered its questioned decision reversing the findings of the labor arbiter and
holding that herein private respondent was illegally dismissed, thus:
"Was appellant illegally dismissed? We believe so. The letter dated March 31, 1986 clearly stated that
she was asking for separation pay because she found out that she had already been replaced during
her leave of absence. x x x Appellant's resignation and request for separation pay was prompted solely
by her removal as indicated in her letter. In short, complainant was forced to resign.

"If it was loss of confidence that prompted appellee to remove appellant, appellee had the burden of
proving it. Appellee had not adduced an iota of evidence that would account for the alleged 'loss of
confidence.'

"Considering, however, that complainant appears to have sought employment elsewhere in lieu of
reinstatement, an award of separation pay and three years backwages, consistent with the rulings of
the Supreme Court, is but proper."[8]
Petitioner's motion for reconsideration was denied in a resolution[9] dated August 16, 1991, hence the
instant petition.

1. Petitioner inceptively asserts that it was denied due process when it was not given the opportunity
to cross-examine herein private respondent during the hearing before the labor arbiter.

It is a basic rule that it is not the denial of the right to be heard but the deprivation of the opportunity to
be heard which constitutes a violation of the due process clause. As held in Var-Orient Shipping Co.,
Inc., et al. vs. Achacoso, etc., et al.,[10] and subsequently reiterated in Bautista, et al. vs. Secretary of
Labor and Employment, et al.:[11] "Equally unmeritorious is petitioners' allegation that they were denied
due process because the decision was rendered without a formal hearing. The essence of due process
is simply an opportunity to be heard, or, as applied to administrative proceedings, an opportunity to
explain one's side, or an opportunity to seek a reconsideration of the action or ruling complained of."

There was sufficient compliance with the requirement of due process as petitioner was given the
opportunity to present its case through a motion to dismiss and a position paper filed with the labor
arbiter.

2. It is contended that while the decisions of respondent commission may be rendered based on
position papers, such rule is not applicable to the case at bar where the position paper submitted by
the private respondent is not verified. The contention is without merit.

First, the issue on the admissibility of the unverified position paper has been passed upon by this Court
in its disposition of the aforementioned petition in G.R. No. 86663 which upheld the decision of
respondent commission, reversing the order of dismissal of the labor arbiter on the ground that the
case could be resolved on the basis of the position papers submitted by the parties. In effect, it was
there held by necessary implication that the unverified position paper submitted by herein private
respondent is deemed sufficient. Besides, even the labor arbiter in his order dated May 25, 1988 admits
that the unverified position paper is a mere procedural infirmity which does not affect the merits of the
case.[12]

Second, well-settled is the rule that procedural technicalities do not strictly apply to proceedings before
labor arbiters for they may avail themselves of all reasonable means to speedily ascertain the facts of
a controversy.[13]

3. Petitioner claims that the findings of respondent commission to the effect that the former failed to
adduce an iota of evidence that would account for the alleged "loss of confidence" is erroneous.
Petitioner raised in its position paper filed before the labor arbiter the following facts which allegedly
constitute the basis for the loss of trust and confidence, to wit:
"Complainant, during the trying times of new management take over, beset by shaky industrial relations,
culminating in mass action, despite requests by new managers was nowhere to be found. If she was
interested to maintain her position, she could have at least reported to the company and brief the new
managers of the existing personnel problems. This, she opted not to do, in fact her 'leave of absence'
(was placed under quote as there is nothing on record that she was granted a one month leave of
absence), ended March 7, 1986, it was only on March 31, 1986 that she wrote the letter opting for
resignation."[14]
Although loss of confidence is a valid cause to terminate an employee, it must nonetheless rest on an
actual breach of duty committed by the employee and not on the employer's caprices.[15] The burden
of proof rests upon the employer to establish that the dismissal is for cause[16] in view of the security
of tenure that employees enjoy under the Constitution and the Labor Code.[17] The failure of the
employer to do so would mean that the dismissal is not justified.[18] It is likewise essential that there
be substantial evidence to support a charge of loss of confidence. The employer's evidence must clearly
and convincingly establish the facts upon which the loss of confidence in the employee may fairly be
made to rest.[19]

In the case at bar, the facts relied upon by petitioner barely, establish any basis for the alleged loss of
confidence. As it is, the same is, at most, a mere allegation.

In addition, we have ruled that to constitute a valid dismissal, two requisites must concur: (1) the
dismissal must be for any of the causes provided for under Article 282 of the Labor Code, and (2) only
after the employee has been notified in writing and given the opportunity to be heard and defend himself
as required under Sections 2 and 5, Rule XIV, Book V of the Implementing Rules.[20] In the case at
bar, petitioner categorically stated in its position paper that "(t)here was never any official
communication from the new management group of the company addressed to the complainant, that
her services were terminated,"[21] and yet it does not deny that it had appointed a replacement for
private respondent even before she wrote her aforequoted letter of March 31, 1986.

4. Finally, petitioner asserts that findings of fact of the labor arbiter should be accorded respect and
finality. Besides, the decision of the labor arbiter had become final considering that the appeal made
by private respondent with respondent commission was filed out of time. Records show that the
decision of the labor arbiter was received by private respondent on May 2, 1990, whereas the appeal
was filed with respondent commission only on May 17, 1990, which is already beyond the 10-day
reglementary period provided in the Labor Code.

While it is true that factual findings of the labor arbiter are usually binding on this Court, such situation
does not obtain in this case. As we have earlier declared, the alleged loss of confidence was never
sufficiently proven by herein petitioner.

It appears that the appeal with respondent commission was indeed filed late. The general rule is that
the perfection of an appeal in the manner and within the period prescribed by law is not only mandatory
but jurisdictional. Failure to conform to the rules will render the judgment sought to be reviewed final
and unappealable.[22]

We also note, in passing, that contrary to the Solicitor General's allegation that petitioner failed to raise
the issue of timeliness of appeal before the respondent commission and is, therefore, deemed to have
waived its right to question the same, herein petitioner did raise this issue albeit belatedly, in its reply
to private respondent's memorandum of appeal.[23]

Nevertheless, in some instances, this Court has disregarded such unintended lapses so as to give due
course to appeals filed beyond the reglementary period on the basis of strong and compelling reasons,
such as serving the ends of justice and preventing a grave miscarriage thereof.[24] We are of the
opinion and so hold that in consideration of the merits of this case, substantial justice could be rightfully
invoked by way of an exception. This is one such case where we are convinced that substance should
prevail over and not be sacrificed for form.

5. Petitioner asseverates that since private respondent is already employed elsewhere, respondent
commission erred in awarding separation pay and three years backwages. We disagree.

In the case of Torillo vs. Leogardo, Jr., etc., et. al.,[25] we held:
"Backwages and reinstatement are two reliefs given to an illegally dismissed employee. They are
separate and distinct from each other. However, in the event that reinstatement is no longer possible,
separation pay is awarded to the employee. Thus, the award of separation pay is in lieu of reinstatement
and not of backwages. In other words, an illegally dismissed employee is entitled to (1) either reinstate-
ment, if viable, or separation pay if reinstatement is no longer viable and (2) backwages."
The payment of backwages is one of the reliefs which an illegally dismissed employee prays the labor
arbiter and the National Labor Relation Commission to render in his favor as a consequence of the
unlawful act committed by the employer. The award thereof is not private compensation or damages
but is in furtherance and effectuation of the public objectives of the Labor Code. Even though the
practical effect is the enrichment of the individual, the award of backwages is not in redress of a private
right, but, rather, is in the nature of a command upon the employer to make public reparation for his
violation of the Labor Code,[26] such as the dismissal of an employee due to the unlawful act of the
employer or the latter's bad faith.[27] Hence, we have ruled that where the ground of loss of confidence
has neither been established nor sufficient basis thereof presented, the finding that respondent
employee was illegally dismissed was well taken and said employee, although not reinstated, was
awarded three years backwages.[28]

With respect to the award of separation pay, we declared in Santos vs. National Labor Relations
Commission, et. al.,[29] that where the decision ordering the reinstatement of the employee may no
longer be enforced, or is no longer feasible because of the strained relations between the parties, the
employee may be awarded separation pay as an alternative to reinstatement. Such a situation obtains
in this case and considering further the confidential nature of private respondent's position, we find no
reason why the foregoing doctrine should not here apply.

WHEREFORE, no grave abuse of discretion having been committed by respondent commission, the
present petition is hereby DISMISSED for lack of merit.
SO ORDERED.

Narvasa, C.J., (Chairman), Feliciano, Nocon, and Campos, Jr., JJ., concur.
E. Requisites of admissibility

Sec 3. Admissibility of evidence. — Evidence is admissible when it is relevant to the issue and
is not excluded by the law of these rules.

Q: What elements should be present for an evidence to be admissible?

A:

1. The evidence is relevant

2. The evidence is not excluded by the rules (competent)

Q: What are the two axioms of admissibility by Wigmore?

A:

1. That none but facts having rational probative value are admissible

2. That all facts having rational probative value are admissible unless some specific rule forbids
them.

NOTE: The first axiom is, in substance, the axiom of relevance while the second axiom is of
competence.

Sec 4. Relevancy; collateral matters. — Evidence must have such a relation to the fact in issue
as to induce belief in its existence or non-existence. Evidence on collateral matters shall not be allowed,
except when it tends in any reasonable degree to establish the probability or improbability of the fact in
issue.

Note: Evidence to be relevant must have such a relation to the act in issue as to induce the belief in its
existence or non- existence.

Cases:

Bautista vs Aparece, 51 OG 805 (1954)

Lopez vs Heesen, 365 P.2d 448 (1961)

365 P.2d 448 (1961)

69 N.M. 206
Jesse G. LOPEZ, Plaintiff-Appellant, v. Robert HEESEN and Sears, Roebuck and Company, a
corporation, Defendants-Appellees.
No. 6760.

Supreme Court of New Mexico.

August 22, 1961.
Rehearing Denied October 31, 1961.
*449 Smith, Kiker & Kitts, and Ramon Lopez, Albuquerque, for appellant.
Sutin & Jones, Albuquerque, David R. Hardy, Kansas City, Mo., for appellees.
CHAVEZ, Justice.
Appellant, Jesse G. Lopez, originally filed suit against appellee, Robert Heesen, alleging that on
October 15, 1958, Heesen unlawfully, violently, maliciously and feloniously assaulted and shot
appellant with a shotgun, thereby inflicting dangerous and painful wounds and injuries to appellant,
causing him great bodily and mental pain and anguish, all to his damage in the total sum of $80,000,
which included $25,000 punitive damages.
Appellee, Heesen, answered denying the allegations of the complaint and thereafter appellant filed a
demand for jury trial. By stipulation of appellant and appellee, Heesen, appellee, Sears, Roebuck and
Company was joined as a party-defendant. Appellee, Sears, Roebuck and Company, will hereinafter
be referred to as appellee "Sears." Thereafter two amended complaints followed before the third
amended complaint was filed, alleging that appellee, Sears, was engaged in the design and
manufacture of hunting firearms, including the Higgins Model 51, Cal. 30.06 rifle, and was also engaged
in the selling of firearms in Albuquerque.
It was also alleged that on October 14, 1958, appellee, Sears, sold to appellee, Heesen, one of said
Higgins Model 51 hunting rifles; that said rifle was negligently designed or manufactured by appellee,
Sears, in that the safety mechanism moved readily and in a dangerous manner from a "safe" to a "fire"
position. In addition, it was alleged that the rifle in this dangerous condition known to appellee, Sears,
was sold to appellee, Heesen, with the knowledge that it would be used for hunting purposes and that
appellee, Sears, negligently failed to warn appellee, Heesen, of the dangerous and defective condition
of the rifle.
The complaint further alleged that on the afternoon of October 15, 1958, in Colfax County, New Mexico,
appellee, Heesen, negligently permitted the rifle to discharge while hunting and that as a proximate
result of the joint and concurrent negligence of both appellees, appellant sustained a severe and
disabling wound and injury to his chest, requiring hospital and surgical care. Appellant demanded
damages in the amount of $55,000 against both appellees, jointly and severally.
Appellee, Heesen, answered denying the allegations of the third amended complaint. Appellee, Sears,
also answered denying the allegations and raising additional affirmative defenses, to-wit: That
appellant's injuries were caused by an unavoidable accident; that the negligence of appellee, Heesen,
was the sole cause thereof; that the rifle involved was of a recognized quality and of proper design and
functioned properly by all commercial sporting arms standards when used with reasonable care; that
rifles of this type had been manufactured by the millions and used by hunters generally and by the
government of the United States and foreign countries; that the safety mechanism and its qualities were
patent and obvious, and had been seen and inspected by Heesen prior to the accident; that Heesen
knew of the tendency of the safety mechanism to come off safety to "fire" position while hunting in
heavy brush and climbing up and down mountain *450 terrain when pressure was applied to the safety
mechanism; that appellee, Sears, had no duty to warn appellee, Heesen, of the method of operation
and use of the safety mechanism; and that it could not have been foreseen that appellee, Heesen,
would continue to hunt in heavy brush and mountainous terrain knowing that the safety mechanism
would come off safety without taking proper precautions to handle the rifle in a reasonable manner.
The jury returned its verdict finding the issues for both appellees and against appellant. Judgment was
entered for appellees and this appeal followed. Appellant abandoned any contention that the verdict in
favor of Heesen was erroneous and this appeal concerns only appellee, Sears.
The facts are substantially as follows. In the early afternoon of October 14, 1958, appellee, Heesen, an
Air Force officer, purchased a J.C. Higgins Model 51, 30.06 rifle from the store of appellee, Sears. Said
rifle has a bolt action known more particularly as a "Mauser type action" with which Heesen was familar.
Heesen, although experienced in hunting, was not familiar with the Higgins Model 51 and had never
used such a rifle. The safety mechanism on the rifle is what is known as a "Class 1" safety, meaning
that it interrupts the firing pin directly. The safety lever is mounted on the left side of the gun to the rear
of the bolt assembly. It is a two-position safety with the action locked when the safety lever is in a raised
position. To release the safety, you push the safety lever to the left and down to a horizontal position
and the gun is then ready to fire.
Heesen first telephoned appellee's store about obtaining a Higgins rifle which they advertised. Later he
went to appellee's store and purchased the rifle. At the time of the purchase Heesen was given an
instruction pamphlet which he read. Said pamphlet explained the composition of the rifle and gave
operating instructions, including the method to be pursued to make the gun "safe," i.e., how the gun is
put in a safety position and how it may be released and have the gun ready to fire. It appears that
Heesen first talked to a salesman, John C. Villella, over the telephone and requested that the rifle be
put aside for him. However, another salesman, Roger Perkins made the actual transfer of the rifle to
Heesen. Perkins' whereabouts is unknown and nothing is known as to Perkins' conversation with
Heesen. Villella did not give Heesen any instructions as to the use of the safety mechanism. There was
a telescopic sight advertised for sale for use with this rifle but Heesen did not care for the sight and did
not purchase it.
Immediately after the purchase of the rifle, Heesen left for a deer hunting trip in an area known as Ute
Park near the town of Eagle Nest in Colfax County. He arrived at Ute Park that night and began hunting
the next morning on October 15, 1958. Heesen hunted without success and had seen no game up until
the time his gun discharged and appellant was wounded shortly after 3:00 P.M.
When Heesen commenced hunting that morning he placed a live cartridge in the chamber and placed
the gun on safety position. He traveled a good deal during the hours before the shooting and on one or
two occasions he discovered the gun off safety position. This was when he had come down a long hill
covered with rocks and boulders and he assumed that he had hit it against a rock or something.
Thereafter Heesen checked the safety position on frequent occasions. Heesen carried the gun on his
right shoulder with the sling at port arms or ready position, with his left hand on the forearm of the gun
and his right hand on the stock, and by the forearm of the gun with his right hand at the "balance" of
the rifle. In each of these positions the safety lever was toward Heesen's body or right leg. Heesen
changed the position in which he carried the rifle during the course of his walking up and down mountain
slopes. He also carried it in a different position in going through brush and in climbing or stepping upon
rocks. Although the gun moved from "safe" to "fire" position at least twice during the hours before *451
the shooting, Heesen was not aware of this occurrence. Shortly before the shooting, Heesen had been
sitting on a knoll for about twenty minutes checking the wind and watching for deer. While sitting on the
knoll he checked or observed the safety lever on the rifle several times and it was on safety position.
At a time not more than ten minutes before the shooting he left the knoll and started down a draw which
ran in a southerly or southwesterly direction. Heesen was not sure whether he checked the safety lever
after he left the knoll and he was carrying the gun on his shoulder by the sling as he proceeded down
the draw toward the point where the gun discharged.
At about this time, appellant, Jesse G. Lopez, was sitting next to a tree about fifty yards away from the
point where Heesen's gun subsequently discharged. Appellant in the company of two hunting
companions, Bennie Aragon and Ramon Barela, had gone from Albuquerque to Ute Park on the
afternoon of October 14, 1958, and after spending the night in the area, commenced hunting on the
morning of October 15th, the first day of deer season. After hunting all morning and again in the early
afternoon, the party stopped to rest at the location where appellant was shot. It was then about 3:00
P.M. and appellant, dressed in bright hunting clothes, was sitting about twenty feet away from his two
companions and scanning the area for game. After sitting there about four or five minutes, appellant
observed an object to his right which was moving but which he could not identify. This was shortly
before the shooting.
As appellee, Heesen, proceeded down the draw after leaving the knoll, he heard a "rustle" and saw a
deer go between some trees to the left of his line of travel about 50 to 100 yards away. The deer, when
observed, was in a direction about 80 or 90 degrees to the left of where appellant was sitting and
Heesen did not observe appellant or his companions before the shooting. At about this time Heesen
removed the rifle from the sling on his shoulder and held it by his right hand at or near the balance
position of the weapon. He then came to a dead log in his path which was about eight or ten inches in
diameter and was lying horizontally a foot or less off the ground with several dead limbs sticking upward
from it. One of these limbs was a dead sapling sticking up about eighteen inches above the log and
had a "fork" shaped like a thumb and forefinger extended. Heesen wanted to cross the log to see the
deer better, and as he stepped across the log his left foot caught on a little limb sticking out and caused
him to stumble. His left foot went down hard on the ground on one side of the log and his right foot
slipped on the grass. This brought the gun down and the gun discharged, the bullet striking appellant.
Heesen testified that he had his hand at least six inches away from the trigger when the gun discharged.
Immediately after the gun discharged he observed that the gun was on "fire" position.
Appellant was sitting on ground higher than Heesen at the time the gun discharged and subsequent
investigation showed that the bullet had gone uphill, hit a dead tree and ricocheted several degrees to
the left, and had thereafter struck some seedlings before hitting appellant in the chest. The bullet
traveled approximately fifty yards altogether. Heesen went quickly to the spot where appellant was
sitting, observed the seriousness of his condition, and Heesen and Lopez' companions made
immediate arrangements to care for appellant. Heesen obtained medical aid.
There was testimony at the trial that when Heesen was going to the place of the accident with Dr. E.L.
Lindsley, he told Dr. Lindsley that the gun discharged as he was moving it from "fire" position to the
"safe" position.
Under point I, appellant contends that the trial court committed error in permitting testimony as to the
general reputation of other firearms companies who use the same modified leaf safety device as the
Higgins Model 51. A witness for appellee, Sears, Paul A. La Violette, Jr., qualified as an expert in gun
designing and testified *452 that the following companies had an excellent reputation in the small arms
field: Fabrique Nationale of Belgium, Marlin Firearms Company, Weatherby Corporation, Colt Firearms
Company, and Jefferson Corporation. Objection was made to this testimony on the ground that it was
wholly immaterial and irrelevant to any issue in the case.
Appellant, in the third amended complaint, alleged that the Higgins Model 51 rifle was in a dangerous
and defective condition due to its negligent manufacture, design, assembly or maintenance, in that the
safety mechanism thereof moved readily and in a dangerous manner from "safe" to "fire" position. This
is an allegation of an ultimate issue of fact which the jury had to decide. Here is an issue, the proper
understanding of which by a jury composed of six men and six ladies, requires specialized knowledge
or experience and cannot be determined independently merely from deductions made and inferences
drawn on the basis of ordinary knowledge. The jury was instructed that expert testimony is intended
only to assist them in coming to a correct conclusion upon facts which are of a technical nature, but
that the opinion of experts was not binding upon them and the jury must determine the weight to be
given to such testimony.
Appellant introduced evidence tending to prove that the safety device on the Higgins Model 51 rifle is
easy to knock off safety, making the rifle dangerous. Appellant's witness, Frank Doyle, over appellee's,
Sears', objection, expressed the opinion that the safety device, without the telescopic sight, is not a
safe piece, in that the projection is too long and it is too prone to be knocked from "safe" to "fire" position.
There is also testimony of certain tests made with the Higgins Model 51 and the witness, Ira Kessler,
expressed the opinion that the Higgins Model 51 was unsafe without the telescopic sight. Another
witness, Robert Allen, testified as to the manner in which the safety lever of the Higgins Model 51
moved from "safe" to "fire" position without his knowledge.
Appellee, Sears, introduced testimony of witnesses who were either experts in the small arms field or
experts in gun designing. The witness, Paul A. La Violette, Jr., testified that he is a gun designer
employed by High Standard Manufacturing Company who manufacture the Higgins Model 51 for Sears.
He qualified as an expert gun designer with many years' experience with other rifle manufacturers and
in factories designing and building weapons of the small arms design. La Violette has two gun patents
pending. La Violette testified that the safety device on the Higgins Model 51 is supplied to High Standard
Manufacturing Company by Fabrique Nationale of Belgium. He also testified extensively as to the
advantages of the safety device of the Higgins Model 51 and stated that six different makes of guns
have the same modified leaf safety device as does the Higgins Model 51. The manufacturers of these
guns are F.N. Mauser, Colt, Marlin, Nato and Weatherby. The evidence also shows that since 1951,
75,572 Higgins Model 51 rifles with the modified leaf safety device have been sold by High Standard
Manufacturing Company to appellee, Sears. High Standard Manufacturing Company has never been
sued by reason of the design of the Higgins Model 51 rifle. There is also opinion evidence that the
Higgins Model 51 rifle is safe by all commercial sporting goods standards.
Appellant appears to concede that the number of rifles manufactured with the modified leaf safety
device, and the fact that other companies manufacture guns with the same design, is relevant as
tending to show that the design is proper. Appellant also seems to concede that the reputation of
Fabrique Nationale of Belgium may be relevant to the issue.
Subsequent to the testimony as to the reputation of the various firearms companies who use a similar
safety device as the Higgins Model 51, the witness, Paul A. La Violette, Jr., testified without objection
that the Higgins Model 51 rifle is safe by all commercial sporting goods standards, and that the design
of the safety device of the Higgins *453 Model 51 was not negligent or defective. He also testified,
without objection, that the safety device on the Higgins Model 51 rifle is excellent for hunting and fulfills
the requirements of a good designer. The witness, Thomas Raymond Robinson, Jr., testified that in his
opinion the Higgins Model 51 is good and practical in the field for a prudent hunter, and is suitable for
hunting. Ira L. Kessler, an expert witness called by defendant, Heesen, testified that the Marlin Firearms
Company has a fair reputation, and that the Colt Firearms Company has an excellent reputation.
On an issue such as we have here we believe the applicable rule to be as stated in Wigmore on
Evidence, 3d Ed., Vol. II, § 461, p. 489, as follows:
"(1) The conduct of others evidences the tendency of the thing in question; and such conduct e.g. in
using chains on a hill, felt shoes in a powder-factory, railings around a machine, or in not using them is
receivable with other evidence showing the tendency of the thing as dangerous, defective, or the
reverse. But this is only evidence. The jury may find from other evidence that the thing was in fact
dangerous, defective, or the reverse, and the maintenance was or was not negligence, in spite of the
above evidence. * * *"
The conduct of others is proper evidence for a jury to consider in determining whether the tendency of
the thing is dangerous, defective, or the reverse. Chicago Great Western Ry. Co. v. McDonough, 8 Cir.,
161 F. 657; Wigmore on Evidence, 3d Ed., Vol. II, § 461, p. 495.
Under our Rule, § 21-1-1(43) (a), which is the same as the Federal Rule, the rule which favors the
reception of the evidence governs, the basis being that any evidence which throws light on the question
in issue should be admitted, leaving it to the trial court to hold the hearing within reasonable bounds.
Mourikas v. Vardianos, 4 Cir., 169 F.2d 53; Lawrence v. Nutter, 4 Cir., 203 F.2d 540.
Circuit Judge Bratton, in a specially concurring opinion in United States v. Bowman, 10 Cir., 73 F.2d
716, 720, in stating the rule, quoted from United States Smelting Co. v. Parry, 8 Cir., 166 F. 407, as
follows:
"It is true that in trials by jury it is their province to determine the ultimate facts, and that the general rule
is that witnesses are permitted to testify to the primary facts within their knowledge, but not to their
opinions. And it is also true that this has at times led to the statement that witnesses may not give their
opinions upon the ultimate facts which the jury are to decide, because that would supplant their
judgment and usurp their province. But such a statement is not to be taken literally. It but reflects the
general rule, which is subject to important qualifications, and never was intended to close any
reasonable avenue to the truth in the investigation of questions of fact. Besides, the tendency of modern
decisions is not only to give as wide a scope as is reasonably possible to the investigation of such
questions, but also to accord to the trial judge a certain discretion in determining what testimony has a
tendency to establish the ultimate facts, and to disturb his decision admitting testimony of that character
only when it plainly appears that the testimony had no legitimate bearing upon the questions at issue
and was calculated to prejudice the minds of the jurors. * * *"
Applying the above principles we hold that the testimony as to the reputation of Fabrique Nationale,
who manufacture the safety device on the Higgins Model 51, and the reputation of Marlin Firearms
Company, Weatherby Corporation, Colt Firearms Company and Jefferson Corporation, who
manufacture rifles which have the same modified leaf safety device as the Higgins Model 51, was
relevant to the issue of whether the safety device on the Higgins Model 51 was unsafe or safe, and
*454 that the trial court did not abuse its discretion in admitting this testimony.
Under point II appellant also contends that the trial court committed error in permitting evidence to be
introduced as to the poundage pressure required to move the safety levers of various rifles from "safe"
to "fire" position. There is no merit in this contention. Appellant's witness, Frank Doyle, testified fully as
to his experience with guns and particularly with the Higgins Model 51 safety device, which he termed
the dangerous feature of the safety mechanism in that it was "so easy to knock off." Doyle's testimony
was introduced under appellant's contention that the Higgins Model 51 rifle was unsafe and thus the
issue arose as to the pressure required to move the safety lever from "safe" to "fire" position. Under the
circumstances it was proper for appellee, Sears, to show that the poundage pressure required to move
the safety lever on a Higgins Model 51 from "safe" to "fire" measured two-and-one-half pounds, and
also to show the poundage pressure required in rifles with identical safety devices. The evidence
discloses that the pound pressure required to move the safety lever on other similar devices was
sometimes a little less and sometimes more than the Higgins Model 51.
Under point III appellant claims that the trial court erred in permitting the witnesses, La Violette, Thomas
Robinson and Edwards Brown, to give opinion evidence that the safety mechanism on the Higgins
Model 51 rifle was negligently or defectively designed. Objection was made to this testimony on the
ground that this was an opinion upon a subject which is within the province of the jury to determine and
that the question asked calls for an opinion as to a question of law and fact.
This contention, we think, must be rejected. The testimony of these witnesses, all experts in their field,
was upon the ultimate issue of fact of whether the safety device on the Higgins Model 51 was dangerous
and defective or unsafe, and was properly the subject of expert testimony. Opinion evidence on an
ultimate issue of fact does not attempt or have the power to usurp the functions of the jury, and this
evidence could not usurp the jury's function because the jury may still reject these opinions and accept
some other view. Opinion evidence offered by both parties in this case was not binding upon the jury
and they were so instructed. See Wigmore on Evidence, 3d Ed., Vol. VII, § 1920, p. 17; Hooper v.
General Motors Corp., 123 Utah 515, 260 P.2d 549.
In Millers' National Ins. Co., Chicago, Ill. v. Wichita Flour Mills Co., 10 Cir., 257 F.2d 93, 100, the court
said:
"The insurance companies assert that McDonald was improperly permitted to invade and usurp the
province of the jury in that the sole issue was whether there was an explosion and McDonald was
allowed to testify that there was an explosion. The controlling rule as stated by the United States
Supreme Court is that where the matter under inquiry is properly the subject of expert testimony, it is
no objection that the opinion sought to be elicited is upon the issue to be decided. That rule has been
followed in this circuit and applied in two recent decisions."
See also Eickmann v. St. Louis Public Service Co., 363 Mo. 651, 253 S.W.2d 122; United States
Smelting Co. v. Parry, 8 Cir., 166 F. 407; Nelson v. Brames, 10 Cir., 1957, 241 F.2d 256; and Cropper
v. Titanium Pigment Co., 8 Cir., 47 F.2d 1038.
In 20 Am.Jur., Evidence, § 775, p. 647, the rule is stated as follows:
"* * * In such cases, witnesses possessing requisite training, skill, or knowledge, denominated `experts,'
may testify, not only to the facts, but to their opinions respecting the facts, so far as necessary to
enlighten the jury and to enable it to come to a right verdict. * * * Issues of this kind are said to create
a necessity for the admission in evidence of the opinions or conclusions of witnesses who are *455
shown to be specially skilled or experienced in the particular field in question."
Appellant's final objection to the opinion testimony is that the question asked of the witnesses calls for
an opinion as to a question of law and fact.
Many of the cases cited by appellant on this point are automobile accident cases which hold that an
expert or a non-expert witness cannot express an opinion that the defendant was negligent. The
reasoning behind these cases is that this is within the field of knowledge and understanding of the jury
and is not a matter requiring technical assistance of persons having unusual knowledge of the subject
by reason of skill, experience, or knowledge.
The parties agree that the ultimate issue of liability is for the jury to determine and that a witness cannot
express an opinion on a matter of law, as distinguished from an ultimate fact. The ultimate issue in this
case was whether the safety mechanism on the Higgins Model 51 rifle was in a dangerous and defective
condition due to its negligent design, in that it moved readily and in a dangerous manner from "safe" to
"fire" position.
Appellant's witnesses testified at great length in what respect they considered the safety mechanism
"dangerous," "unsafe," and "defective," and expressed the opinion that the safety mechanism was not
a safe piece and was unsafe without the telescopic sight. Appellees' expert witnesses likewise testified
in great detail as to the safety mechanism and they were of the opinion that the safety mechanism on
the Higgins Model 51 rifle was safe by all commercial sporting goods standards, was suitable for
hunting, and was not negligently or defectively designed. Thus the jury was free to adopt either view
and then fix the liability.
The word "negligence" is sometimes used in a broad sense and sometimes in a narrow sense. In the
broad sense it includes the elements of liability. In the narrow sense the element of liability is excluded.
Pittsburgh, C., C. & St. L. Ry. Co. v. Nichols, 78 Ind. App. 361, 130 N.E. 546, 553.
"* * * An allegation of negligence as applied to the conduct of a party is not a mere conclusion of law,
unless made so by the law, but the statement of an ultimate pleadable and provable fact. * * *"
Peavy v. Hardin, Tex.Civ.App. 1926, 288 S.W. 588, 589. See also Gower v. Lamb, Mo. App. 1955, 282
S.W.2d 867; Ege v. Born, 212 Iowa 1138, 236 N.W. 75; Cohen v. Swiller, 1959, 17 Misc.2d 921, 186
N.Y.S.2d 844; Louis v. Smith-McCormick Const. Co., 1917, 80 W. Va. 159, 92 S.E. 249; and Hooper
v. General Motors Corp., 123 Utah 515, 260 P.2d 549.
Beal v. Southern Union Gas Co., 66 N.M. 424, 349 P.2d 337, follows the rule that an expert witness
can express an opinion on an ultimate issue of fact, but cannot testify as to the ultimate issue of liability.
There is much confusion among the decisions due to the language used by the courts in explaining
why opinion testimony should be excluded. Some courts say that the opinion would "usurp the functions
of the jury." Other courts say that the opinion should not be received because "that is the question
which the jury must decide." If we are to add to this, the additional confusion which exists in the
decisions as to whether negligence is a question of law or fact, or is a mixed question of law and fact,
we would tend to create more confusion and add to the fine distinctions and limitations.
Opinion evidence is admissible on the basis that it will aid the jury to understand the problem and lead
them to the truth on the ultimate facts, and opinions may be disregarded by the jury in whole or in part.
It is left to the jury to decide the issue. See Seal v. Blackburn Tank Truck Service, 64 N.M. 282, 327
P.2d 797; and Hooper v. General Motors Corp., supra.
From a careful consideration of the record, we have come to the conclusion that when we consider all
of the testimony *456 bearing upon the question of whether the rifle was dangerous and defective due
to its negligent design, that when appellee used the term "negligent or defective," he was using the
word "negligent" in a narrow sense and as to an ultimate and provable fact. This excluded the element
of liability. It was for the jury to fix the ultimate liability of either party. All of the facts went to the jury and
it is our view that under all of the facts and circumstances of this case, the expert opinions expressed
were not improperly admitted.
The trial court did not abuse its discretion in permitting the experts to express their opinion. Bunton v.
Hull, 51 N.M. 5, 177 P.2d 168; State v. Padilla, 1959, 66 N.M. 289, 347 P.2d 312; and Wells Truckways
v. Cebrian, 1954, 122 Cal. App. 2d 666, 265 P.2d 557.
Finding no error in the record, the judgment of the district court is affirmed. It is so ordered.
COMPTON, C.J., and CARMODY, J., concur.
MOISE and NOBLE, JJ., not participating.

F. Specific exclusions:

1. Art. III, Sec 2 and 3, Constitution

Section 2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and
no search warrant or warrant of arrest shall issue except upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the complainant and the
witnesses he may produce, and particularly describing the place to be searched and the persons or
things to be seized.

Section 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful
order of the court, or when public safety or order requires otherwise, as prescribed by law.
(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any
purpose in any proceeding.

2. Art. III, Sec. 12, Constitution

Section 12. (1) Any person under investigation for the commission of an offense shall have the right to
be informed of his right to remain silent and to have competent and independent counsel preferably of
his own choice. If the person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the free will shall
be used against him. Secret detention places, solitary, incommunicado, or other similar forms of
detention are prohibited.
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible
in evidence against him.
(4) The law shall provide for penal and civil sanctions for violations of this section as well as
compensation to and rehabilitation of victims of torture or similar practices, and their families.

3. Art. III, Sec 17

Section 17. No person shall be compelled to be a witness against himself.

4. NIRC, Sec 201, as amended by RA 8424

Section 201. Effect of Failure to Stamp Taxable Document. - An instrument, document or paper which
is required by law to be stamped and which has been signed, issued, accepted or transferred without
being duly stamped, shall not be recorded, nor shall it or any copy thereof or any record of transfer of
the same be admitted or used in evidence in any court until the requisite stamp or stamps are affixed
thereto and cancelled.

5. General Banking Act of 2000, RA 8791, Sec 55.1 (b) - Prohibited Transactions

55.1 No director, officer, employee, or agent of any bank shall —

Xxx
(b) Without order of a court of competent jurisdiction, disclose to any unauthorized person any
information relative to the funds or properties in the custody of the bank belonging to private individuals,
corporations, or any other entity: Provided, That with respect to bank deposits, the provisions of existing
laws shall prevail;
Xxx

6. RA 1405 - Secrecy of Bank Deposits

REPUBLIC ACT No. 1405

AN ACT PROHIBITING DISCLOSURE OF OR INQUIRY INTO, DEPOSITS WITH ANY BANKING
INSTITUTION AND PROVIDING PENALTY THEREFOR.
Section 1. It is hereby declared to be the policy of the Government to give encouragement to the people
to deposit their money in banking institutions and to discourage private hoarding so that the same may
be properly utilized by banks in authorized loans to assist in the economic development of the country.
Section 2. 1 All deposits of whatever nature with banks or banking institutions in the Philippines
including investments in bonds issued by the Government of the Philippines, its political subdivisions
and its instrumentalities, are hereby considered as of an absolutely confidential nature and may not be
examined, inquired or looked into by any person, government official, bureau or office, except upon
written permission of the depositor, or in cases of impeachment, or upon order of a competent court in
cases of bribery or dereliction of duty of public officials, or in cases where the money deposited or
invested is the subject matter of the litigation.
Section 3. It shall be unlawful for any official or employee of a banking institution to disclose to any
person other than those mentioned in Section two hereof any information concerning said deposits.
Section 4. All Acts or parts of Acts, Special Charters, Executive Orders, Rules and Regulations which
are inconsistent with the provisions of this Act are hereby repealed.
Section 5. Any violation of this law will subject offender upon conviction, to an imprisonment of not
more than five years or a fine of not more than twenty thousand pesos or both, in the discretion of the
court.
Section 6. This Act shall take effect upon its approval.
Approved: September 9, 1955

7. RA 4200: Wire-tapping

REPUBLIC ACT No. 4200

AN ACT TO PROHIBIT AND PENALIZE WIRE TAPPING AND OTHER RELATED VIOLATIONS OF
THE PRIVACY OF COMMUNICATION, AND FOR OTHER PURPOSES.
Section 1. It shall be unlawful for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or arrangement,
to secretly overhear, intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or dictaphone or walkie-talkie or tape recorder, or
however otherwise described:
It shall also be unlawful for any person, be he a participant or not in the act or acts penalized in the next
preceding sentence, to knowingly possess any tape record, wire record, disc record, or any other such
record, or copies thereof, of any communication or spoken word secured either before or after the
effective date of this Act in the manner prohibited by this law; or to replay the same for any other person
or persons; or to communicate the contents thereof, either verbally or in writing, or to furnish
transcriptions thereof, whether complete or partial, to any other person: Provided, That the use of such
record or any copies thereof as evidence in any civil, criminal investigation or trial of offenses mentioned
in section 3 hereof, shall not be covered by this prohibition.
Section 2. Any person who willfully or knowingly does or who shall aid, permit, or cause to be done
any of the acts declared to be unlawful in the preceding section or who violates the provisions of the
following section or of any order issued thereunder, or aids, permits, or causes such violation shall,
upon conviction thereof, be punished by imprisonment for not less than six months or more than six
years and with the accessory penalty of perpetual absolute disqualification from public office if the
offender be a public official at the time of the commission of the offense, and, if the offender is an alien
he shall be subject to deportation proceedings.
Section 3. Nothing contained in this Act, however, shall render it unlawful or punishable for any peace
officer, who is authorized by a written order of the Court, to execute any of the acts declared to be
unlawful in the two preceding sections in cases involving the crimes of treason, espionage, provoking
war and disloyalty in case of war, piracy, mutiny in the high seas, rebellion, conspiracy and proposal to
commit rebellion, inciting to rebellion, sedition, conspiracy to commit sedition, inciting to sedition,
kidnapping as defined by the Revised Penal Code, and violations of Commonwealth Act No. 616,
punishing espionage and other offenses against national security: Provided, That such written order
shall only be issued or granted upon written application and the examination under oath or affirmation
of the applicant and the witnesses he may produce and a showing: (1) that there are reasonable
grounds to believe that any of the crimes enumerated hereinabove has been committed or is being
committed or is about to be committed: Provided, however, That in cases involving the offenses of
rebellion, conspiracy and proposal to commit rebellion, inciting to rebellion, sedition, conspiracy to
commit sedition, and inciting to sedition, such authority shall be granted only upon prior proof that a
rebellion or acts of sedition, as the case may be, have actually been or are being committed; (2) that
there are reasonable grounds to believe that evidence will be obtained essential to the conviction of
any person for, or to the solution of, or to the prevention of, any of such crimes; and (3) that there are
no other means readily available for obtaining such evidence.
The order granted or issued shall specify: (1) the identity of the person or persons whose
communications, conversations, discussions, or spoken words are to be overheard, intercepted, or
recorded and, in the case of telegraphic or telephonic communications, the telegraph line or the
telephone number involved and its location; (2) the identity of the peace officer authorized to overhear,
intercept, or record the communications, conversations, discussions, or spoken words; (3) the offense
or offenses committed or sought to be prevented; and (4) the period of the authorization. The
authorization shall be effective for the period specified in the order which shall not exceed sixty (60)
days from the date of issuance of the order, unless extended or renewed by the court upon being
satisfied that such extension or renewal is in the public interest.
All recordings made under court authorization shall, within forty-eight hours after the expiration of the
period fixed in the order, be deposited with the court in a sealed envelope or sealed package, and shall
be accompanied by an affidavit of the peace officer granted such authority stating the number of
recordings made, the dates and times covered by each recording, the number of tapes, discs, or
records included in the deposit, and certifying that no duplicates or copies of the whole or any part
thereof have been made, or if made, that all such duplicates or copies are included in the envelope or
package deposited with the court. The envelope or package so deposited shall not be opened, or the
recordings replayed, or used in evidence, or their contents revealed, except upon order of the court,
which shall not be granted except upon motion, with due notice and opportunity to be heard to the
person or persons whose conversation or communications have been recorded.
The court referred to in this section shall be understood to mean the Court of First Instance within
whose territorial jurisdiction the acts for which authority is applied for are to be executed.
Section 4. Any communication or spoken word, or the existence, contents, substance, purport, effect,
or meaning of the same or any part thereof, or any information therein contained obtained or secured
by any person in violation of the preceding sections of this Act shall not be admissible in evidence in
any judicial, quasi-judicial, legislative or administrative hearing or investigation.
Section 5. All laws inconsistent with the provisions of this Act are hereby repealed or accordingly
amended.
Section 6. This Act shall take effect upon its approval.
Approved: June 19, 1965

Case: Ramirez vs CA, 248 SCRA 590 (1995)

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 93833 September 28, 1995

SOCORRO D. RAMIREZ, petitioner,
vs.
HONORABLE COURT OF APPEALS, and ESTER S. GARCIA, respondents.

KAPUNAN, J.:
A civil case damages was filed by petitioner Socorro D. Ramirez in the Regional Trial Court of Quezon
City alleging that the private respondent, Ester S. Garcia, in a confrontation in the latter's office,
allegedly vexed, insulted and humiliated her in a "hostile and furious mood" and in a manner offensive
to petitioner's dignity and personality," contrary to morals, good customs and public policy."1
In support of her claim, petitioner produced a verbatim transcript of the event and sought moral
damages, attorney's fees and other expenses of litigation in the amount of P610,000.00, in addition to
costs, interests and other reliefs awardable at the trial court's discretion. The transcript on which the
civil case was based was culled from a tape recording of the confrontation made by petitioner.2 The
transcript reads as follows:
Plaintiff Soccoro D. Ramirez (Chuchi) — Good Afternoon M'am.
Defendant Ester S. Garcia (ESG) — Ano ba ang nangyari sa 'yo, nakalimot ka na kung paano ka
napunta rito, porke member ka na, magsumbong ka kung ano ang gagawin ko sa 'yo.
CHUCHI — Kasi, naka duty ako noon.
ESG — Tapos iniwan no. (Sic)
CHUCHI — Hindi m'am, pero ilan beses na nila akong binalikan, sabing ganoon —
ESG — Ito and (sic) masasabi ko sa 'yo, ayaw kung (sic) mag explain ka, kasi hanggang 10:00 p.m.,
kinabukasan hindi ka na pumasok. Ngayon ako ang babalik sa 'yo, nag-aaply ka sa States, nag-aaply
ka sa review mo, kung kakailanganin ang certification mo, kalimutan mo na kasi hindi ka sa akin
makakahingi.
CHUCHI — Hindi M'am. Kasi ang ano ko talaga noon i-cocontinue ko up to 10:00 p.m.
ESG — Bastos ka, nakalimutan mo na kung paano ka pumasok dito sa hotel. Magsumbong ka sa
Union kung gusto mo. Nakalimutan mo na kung paano ka nakapasok dito "Do you think that on your
own makakapasok ka kung hindi ako. Panunumbyoyan na kita (Sinusumbatan na kita).
CHUCHI — Itutuloy ko na M'am sana ang duty ko.
ESG — Kaso ilang beses na akong binabalikan doon ng mga no (sic) ko.
ESG — Nakalimutan mo na ba kung paano ka pumasok sa hotel, kung on your own merit alam ko
naman kung gaano ka "ka bobo" mo. Marami ang nag-aaply alam kong hindi ka papasa.
CHUCHI — Kumuha kami ng exam noon.
ESG — Oo, pero hindi ka papasa.
CHUCHI — Eh, bakit ako ang nakuha ni Dr. Tamayo
ESG — Kukunin ka kasi ako.
CHUCHI — Eh, di sana —
ESG — Huwag mong ipagmalaki na may utak ka kasi wala kang utak. Akala mo ba makukuha ka dito
kung hindi ako.
CHUCHI — Mag-eexplain ako.
ESG — Huwag na, hindi ako mag-papa-explain sa 'yo, makaalala ka kung paano ka puma-rito.
"Putang-ina" sasabi-sabihin mo kamag-anak ng nanay at tatay mo ang mga magulang ko.
ESG — Wala na akong pakialam, dahil nandito ka sa loob, nasa labas ka puwede ka ng hindi pumasok,
okey yan nasaloob ka umalis ka doon.
CHUCHI — Kasi M'am, binbalikan ako ng mga taga Union.
ESG — Nandiyan na rin ako, pero huwag mong kalimutan na hindi ka makakapasok kung hindi ako.
Kung hindi mo kinikilala yan okey lang sa akin, dahil tapos ka na.
CHUCHI — Ina-ano ko m'am na utang na loob.
ESG — Huwag na lang, hindi mo utang na loob, kasi kung baga sa no, nilapastangan mo ako.
CHUCHI — Paano kita nilapastanganan?
ESG — Mabuti pa lumabas ka na. Hindi na ako makikipagusap sa 'yo. Lumabas ka na. Magsumbong
ka.3
As a result of petitioner's recording of the event and alleging that the said act of secretly taping the
confrontation was illegal, private respondent filed a criminal case before the Regional Trial Court of
Pasay City for violation of Republic Act 4200, entitled "An Act to prohibit and penalize wire tapping and
other related violations of private communication, and other purposes." An information charging
petitioner of violation of the said Act, dated October 6, 1988 is quoted herewith:
INFORMATION
The Undersigned Assistant City Fiscal Accusses Socorro D. Ramirez of Violation of Republic Act No.
4200, committed as follows:
That on or about the 22nd day of February, 1988, in Pasay City Metro Manila, Philippines, and within
the jurisdiction of this honorable court, the above-named accused, Socorro D. Ramirez not being
authorized by Ester S. Garcia to record the latter's conversation with said accused, did then and there
willfully, unlawfully and feloniously, with the use of a tape recorder secretly record the said conversation
and thereafter communicate in writing the contents of the said recording to other person.
Contrary to law.
Pasay City, Metro Manila, September 16, 1988.
MARIANO M. CUNETA
Asst. City Fiscal
Upon arraignment, in lieu of a plea, petitioner filed a Motion to Quash the Information on the ground
that the facts charged do not constitute an offense, particularly a violation of R.A. 4200. In an order May
3, 1989, the trial court granted the Motion to Quash, agreeing with petitioner that 1) the facts charged
do not constitute an offense under R.A. 4200; and that 2) the violation punished by R.A. 4200 refers to
a the taping of a communication by a person other than a participant to the communication.4
From the trial court's Order, the private respondent filed a Petition for Review on Certiorari with this
Court, which forthwith referred the case to the Court of Appeals in a Resolution (by the First Division)
of June 19, 1989.
On February 9, 1990, respondent Court of Appeals promulgated its assailed Decision declaring the trial
court's order of May 3, 1989 null and void, and holding that:
[T]he allegations sufficiently constitute an offense punishable under Section 1 of R.A. 4200. In thus
quashing the information based on the ground that the facts alleged do not constitute an offense, the
respondent judge acted in grave abuse of discretion correctible by certiorari.5
Consequently, on February 21, 1990, petitioner filed a Motion for Reconsideration which respondent
Court of Appeals denied in its Resolution6 dated June 19, 1990. Hence, the instant petition.
Petitioner vigorously argues, as her "main and principal issue"7 that the applicable provision of Republic
Act 4200 does not apply to the taping of a private conversation by one of the parties to the conversation.
She contends that the provision merely refers to the unauthorized taping of a private conversation by
a party other than those involved in the communication.8 In relation to this, petitioner avers that the
substance or content of the conversation must be alleged in the Information, otherwise the facts
charged would not constitute a violation of R.A. 4200.9 Finally, petitioner agues that R.A. 4200 penalizes
the taping of a "private communication," not a "private conversation" and that consequently, her act of
secretly taping her conversation with private respondent was not illegal under the said act. 10
We disagree.
First, legislative intent is determined principally from the language of a statute. Where the language of
a statute is clear and unambiguous, the law is applied according to its express terms, and interpretation
would be resorted to only where a literal interpretation would be either impossible 11 or absurb or would
lead to an injustice. 12
Section 1 of R.A. 4200 entitled, " An Act to Prohibit and Penalized Wire Tapping and Other Related
Violations of Private Communication and Other Purposes," provides:
Sec. 1. It shall be unlawfull for any person, not being authorized by all the parties to any private
communication or spoken word, to tap any wire or cable, or by using any other device or arrangement,
to secretly overhear, intercept, or record such communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or detectaphone or walkie-talkie or tape recorder, or
however otherwise described.
The aforestated provision clearly and unequivocally makes it illegal for any person, not authorized by
all the parties to any private communication to secretly record such communication by means of a tape
recorder. The law makes no distinction as to whether the party sought to be penalized by the statute
ought to be a party other than or different from those involved in the private communication. The
statute's intent to penalize all persons unauthorized to make such recording is underscored by the use
of the qualifier "any". Consequently, as respondent Court of Appeals correctly concluded, "even a
(person) privy to a communication who records his private conversation with another without the
knowledge of the latter (will) qualify as a violator" 13 under this provision of R.A. 4200.
A perusal of the Senate Congressional Records, moreover, supports the respondent court's conclusion
that in enacting R.A. 4200 our lawmakers indeed contemplated to make illegal, unauthorized tape
recording of private conversations or communications taken either by the parties themselves or by third
persons. Thus:
xxx xxx xxx
Senator Tañada: That qualified only "overhear".
Senator Padilla: So that when it is intercepted or recorded, the element of secrecy would not appear to
be material. Now, suppose, Your Honor, the recording is not made by all the parties but by some parties
and involved not criminal cases that would be mentioned under section 3 but would cover, for example
civil cases or special proceedings whereby a recording is made not necessarily by all the parties but
perhaps by some in an effort to show the intent of the parties because the actuation of the parties prior,
simultaneous even subsequent to the contract or the act may be indicative of their intention. Suppose
there is such a recording, would you say, Your Honor, that the intention is to cover it within the purview
of this bill or outside?
Senator Tañada: That is covered by the purview of this bill, Your Honor.
Senator Padilla: Even if the record should be used not in the prosecution of offense but as evidence to
be used in Civil Cases or special proceedings?
Senator Tañada: That is right. This is a complete ban on tape recorded conversations taken without
the authorization of all the parties.
Senator Padilla: Now, would that be reasonable, your Honor?
Senator Tañada: I believe it is reasonable because it is not sporting to record the observation of one
without his knowing it and then using it against him. It is not fair, it is not sportsmanlike. If the purpose;
Your honor, is to record the intention of the parties. I believe that all the parties should know that the
observations are being recorded.
Senator Padilla: This might reduce the utility of recorders.
Senator Tañada: Well no. For example, I was to say that in meetings of the board of directors where a
tape recording is taken, there is no objection to this if all the parties know. It is but fair that the people
whose remarks and observations are being made should know that the observations are being
recorded.
Senator Padilla: Now, I can understand.
Senator Tañada: That is why when we take statements of persons, we say: "Please be informed that
whatever you say here may be used against you." That is fairness and that is what we demand. Now,
in spite of that warning, he makes damaging statements against his own interest, well, he cannot
complain any more. But if you are going to take a recording of the observations and remarks of a person
without him knowing that it is being taped or recorded, without him knowing that what is being recorded
may be used against him, I think it is unfair.
xxx xxx xxx
(Congression Record, Vol. III, No. 31, p. 584, March 12, 1964)
Senator Diokno: Do you understand, Mr. Senator, that under Section 1 of the bill as now worded, if a
party secretly records a public speech, he would be penalized under Section 1? Because the speech
is public, but the recording is done secretly.
Senator Tañada: Well, that particular aspect is not contemplated by the bill. It is the communication
between one person and another person — not between a speaker and a public.
xxx xxx xxx
(Congressional Record, Vol. III, No. 33, p. 626, March 12, 1964)
xxx xxx xxx
The unambiguity of the express words of the provision, taken together with the above-quoted
deliberations from the Congressional Record, therefore plainly supports the view held by the
respondent court that the provision seeks to penalize even those privy to the private communications.
Where the law makes no distinctions, one does not distinguish.
Second, the nature of the conversations is immaterial to a violation of the statute. The substance of the
same need not be specifically alleged in the information. What R.A. 4200 penalizes are the acts of
secretly overhearing, intercepting or recording private communications by means of the devices
enumerated therein. The mere allegation that an individual made a secret recording of a private
communication by means of a tape recorder would suffice to constitute an offense under Section 1 of
R.A. 4200. As the Solicitor General pointed out in his COMMENT before the respondent court:
"Nowhere (in the said law) is it required that before one can be regarded as a violator, the nature of the
conversation, as well as its communication to a third person should be professed." 14
Finally, petitioner's contention that the phrase "private communication" in Section 1 of R.A. 4200 does
not include "private conversations" narrows the ordinary meaning of the word "communication" to a
point of absurdity. The word communicate comes from the latin word communicare, meaning "to share
or to impart." In its ordinary signification, communication connotes the act of sharing or imparting
signification, communication connotes the act of sharing or imparting, as in a conversation, 15 or
signifies the "process by which meanings or thoughts are shared between individuals through a
common system of symbols (as language signs or gestures)" 16 These definitions are broad enough to
include verbal or non-verbal, written or expressive communications of "meanings or thoughts" which
are likely to include the emotionally-charged exchange, on February 22, 1988, between petitioner and
private respondent, in the privacy of the latter's office. Any doubts about the legislative body's meaning
of the phrase "private communication" are, furthermore, put to rest by the fact that the terms
"conversation" and "communication" were interchangeably used by Senator Tañada in his Explanatory
Note to the bill quoted below:
It has been said that innocent people have nothing to fear from their conversations being overheard.
But this statement ignores the usual nature of conversations as well the undeniable fact that most, if
not all, civilized people have some aspects of their lives they do not wish to expose. Free conversations
are often characterized by exaggerations, obscenity, agreeable falsehoods, and the expression of anti-
social desires of views not intended to be taken seriously. The right to the privacy of communication,
among others, has expressly been assured by our Constitution. Needless to state here, the framers of
our Constitution must have recognized the nature of conversations between individuals and the
significance of man's spiritual nature, of his feelings and of his intellect. They must have known that
part of the pleasures and satisfactions of life are to be found in the unaudited, and free exchange of
communication between individuals — free from every unjustifiable intrusion by whatever means.17
In Gaanan vs. Intermediate Appellate Court, 18 a case which dealt with the issue of telephone
wiretapping, we held that the use of a telephone extension for the purpose of overhearing a private
conversation without authorization did not violate R.A. 4200 because a telephone extension devise was
neither among those "device(s) or arrangement(s)" enumerated therein, 19 following the principle that
"penal statutes must be construed strictly in favor of the accused."20 The instant case turns on a different
note, because the applicable facts and circumstances pointing to a violation of R.A. 4200 suffer from
no ambiguity, and the statute itself explicitly mentions the unauthorized "recording" of private
communications with the use of tape-recorders as among the acts punishable.
WHEREFORE, because the law, as applied to the case at bench is clear and unambiguous and leaves
us with no discretion, the instant petition is hereby DENIED. The decision appealed from is AFFIRMED.
Costs against petitioner.
SO ORDERED.
Padilla, Davide, Jr. and Bellosillo JJ., concur.
Hermosisima, Jr., J., is on leave.
II. Rule 129, Rules of Court

A. Definitions:

Judicial Notice - It is the cognizance of certain facts which judges may properly take and act
upon without proof because they are supposed to be known to them. It is based on considerations of
expediency and convenience. It displaces evidence, being equivalent to proof.

Note: Judicial notice fulfils the objective which the evidence intends to achieve. It is not
equivalent to judicial knowledge or that which is based on the personal knowledge of the court; rather,
it is the cognizance of “common knowledge.” Judicial notice relieves the parties from the necessity of
introducing evidence to prove the fact notified. It makes evidence unnecessary.

## Q: What are the facts that need not be proved?

1. Those which the courts may take judicial notice (Rule 129);
2. Those that are judicially admitted (Rule 129);
3. Those that are conclusively presumed (Rule 131); and 4. Those that are disputably presumed
but uncontradicted (Rule 131).

## Q: What are the requisites of judicial notice?

A:
1. The matter must be one of common and general knowledge;
2. It must be well and authoritatively settled and not doubtful or uncertain; and
3. It must be one which is not subject to a reasonable dispute in that it is either:
a. Generally known within the territorial jurisdiction of the trial court; or
b. Capable of accurate and ready determination by resorting to sources whose accuracy cannot
reasonably be questionable (Expertravel & Tours, Inc. v. CA, G.R. No. 152392, May 26, 2005).

Judicial Admissions - Section 4. Judicial admissions. — An admission, verbal or written, made

by the party in the course of the proceedings in the same case, does not require proof. The admission
may be contradicted only by showing that it was made through palpable mistake or that no such
admission was made.

B. Judicial Notice

Cases:

City of Manila vs Garcia, 19 SCRA 413 (1967), GR L26053

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-26053 February 21, 1967
CITY OF MANILA, plaintiff-appellee,
vs.
GERARDO GARCIA — CARMENCITA VILLANUEVA, MODESTA PARAYNO — NARCISO
PARAYNO, JUAN ASPERAS, MARIA TABIA — SIMEON DILIMAN, AQUILINO BARRIOS —
LEONORA RUIZ, LAUREANO DIZO, BERNABE AYUDA — LEOGARDA DE LOS SANTOS,
ISABELO OBAOB — ANDREA RIPARIP, JOSE BARRIENTOS, URBANO RAMOS,1 ELENA
RAMOS, ESTEFANIA NEPACINA, MODESTA SANCHEZ, MARCIAL LAZARO, MARCIANA
ALANO, HONORIO BERIÑO — SEDORA ORAYLE, GLORIA VELASCO, WILARICO RICAMATA,
BENEDICTO DIAZ, ANA DEQUIZ — (MRS.) ALUNAN, LORENZO CARANDANG, JUAN PECAYO,
FELICIDAD MIRANDA — EMIGDIO EGIPTO, defendants-appellants.
Mauricio Z. Alunan for defendants-appellants.
City Fiscal's Office for plaintiff-appellee.
SANCHEZ, J.:
Plaintiff City of Manila is owner of parcels of land, forming one compact area, bordering Kansas,
Vermont and Singalong streets in Malate, Manila, and covered by Torrens Titles Nos. 49763, 37082
and 37558. Shortly after liberation from 1945 to 1947, defendants entered upon these premises without
plaintiff's knowledge and consent. They built houses of second-class materials, again without plaintiff's
knowledge and consent, and without the necessary building permits from the city. There they lived thru
the years to the present.
In November, 1947, the presence of defendants having previously been discovered, defendants
Felicidad Miranda (Emigdio Egipto), Modesta C. Parayno, Benedicto Diaz, Laureano Dizo, Jose
Barrientos, Elena Ramos, Estefania Nepacina, Modesta Sanchez, Honorio Beriño, Gloria Velasco, Ana
Dequis Alunan and Benedicto Ofiaza (predecessor of defendant Carandang) were given by Mayor
Valeriano E. Fugoso written permits — each labeled "lease contract" — to occupy specific areas in the
property upon conditions therein set forth. Defendants Isabelo Obaob and Gerardo Garcia (in the name
of Marta A. Villanueva) received their permits from Mayor Manuel de la Fuente on January 29 and
March 18, respectively, both of 1948. The rest of the 23 defendants exhibited none.
For their occupancy, defendants were charged nominal rentals.1äwphï1.ñët
Following are the rentals due as of February, 1962:
Amt. due from
Area Monthly
NAME date of delinquency
in sq.m. Rental
to Feb. 1962
1. Gerardo Garcia 66.00 P7.92 P1,628.97
2. Modesta C. Parayno 87.75 10.53 379.08
3. Juan Asperas 39.00 4.68 9.36
4. Maria Tabia 35.20 5.76 570.24
5. Aquilino Barrios
54.00 4.32 99.36
(Leonora Ruiz)
6. Laureano Dizo 35.00 2.80 22.40
7. Bernabe Ayuda 39.60 3.17 323.34
8. Isabelo Obaob 75.52 9.06 208.38
9. Jose Barrientos 39.53 4.74 744.18
10. Cecilia Manzano in Paid up to
lieu of Urbano Ramos (deceased) 46.65 5.60 Feb. 1962.
11. Elena Ramos 34.80 2.78 186.26
12. Estefania Nepacina 41.80 3.34 504.34
13. Modesta Sanchez 33.48 2.68 444.88
14. Marcial Lazaro 22.40 1.79 688.32
15. Marciana Alano 25.80 2.06 255.44
16. Honorio Beriño 24.00 1.92 188.16
17. Gloria Velasco 32.40 2.59 56.98
18. Wilarico Ricamata 45.83 3.67 739.68
Paid up to
19. Benedicto Diaz 40.20 4.82
March 1962.
20. Ana Dequis Alunan 64.26 7.71 30.84
 21. Lorenzo Carandang 45.03 5.40 437.40
22. Juan N. Pecayo 25.52 3.06 30.60
23. Felicidad Miranda 48.02 5.76 132.48
P7,580.69

Epifanio de los Santos Elementary School is close, though not contiguous, to the property. Came the
need for this school's expansion; it became pressing. On September 14, 1961, plaintiff's City Engineer,
pursuant to the Mayor's directive to clear squatters' houses on city property, gave each of defendants
thirty (30) days to vacate and remove his construction or improvement on the premises. This was
followed by the City Treasurer's demand on each defendant, made in February and March, 1962, for
the payment of the amount due by reason of the occupancy and to vacate in fifteen (15) days.
Defendants refused. Hence, this suit to recover possession.2
The judgment below directed defendants to vacate the premises; to pay the amounts heretofore
indicated opposite their respective names; and to pay their monthly rentals from March, 1962, until they
vacate the said premises, and the costs. Defendants appealed.
1. We are called upon to rule on the forefront question of whether the trial court properly found that the
city needs the premises for school purposes.
The city's evidence on this point is Exhibit E, the certification of the Chairman, Committee on
Appropriations of the Municipal Board. That document recites that the amount of P100,000.00 had been
set aside in Ordinance 4566, the 1962-1963 Manila City Budget, for the construction of an additional
building of the Epifanio de los Santos Elementary School. It is indeed correct to say that the court below,
at the hearing, ruled out the admissibility of said document. But then, in the decision under review, the
trial judge obviously revised his views. He there declared that there was need for defendants to vacate
the premises for school expansion; he cited the very document, Exhibit E, aforesaid.
It is beyond debate that a court of justice may alter its ruling while the case is within its power, to make
it conformable to law and justice.3 Such was done here. Defendants' remedy was to bring to the
attention of the court its contradictory stance. Not having done so, this Court will not reopen the case
solely for this purpose.4
Anyway, elimination of the certification, Exhibit E, as evidence, would not profit defendants. For, in
reversing his stand, the trial judge could well have taken — because the was duty bound to take —
judicial notice5 of Ordinance 4566. The reason being that the city charter of Manila requires all courts
sitting therein to take judicial notice of all ordinances passed by the municipal board of Manila.6 And,
Ordinance 4566 itself confirms the certification aforesaid that an appropriation of P100,000.00 was set
aside for the "construction of additional building" of the Epifanio de los Santos Elementary School.
Furthermore, defendants' position is vulnerable to assault from a third direction. Defendants have
absolutely no right to remain in the premises. The excuse that they have permits from the mayor is at
best flimsy. The permits to occupy are recoverable on thirty days' notice. They have been asked to
leave; they refused to heed. It is in this factual background that we say that the city's need for the
premises is unimportant. The city's right to throw defendants out of the area cannot be gainsaid. The
city's dominical right to possession is paramount. If error there was in the finding that the city needs the
land, such error is harmless and will not justify reversal of the judgment below.7
2. But defendants insist that they have acquired the legal status of tenants. They are wrong.
They entered the land, built houses of second-class materials thereon without the knowledge and
consent of the city. Their homes were erected without city permits.
These constructions are illegal. In a language familiar to all, defendants are squatters:
Since the last global war, squatting on another's property in this country has become a widespread
vice. It was and is a blight. Squatters' areas pose problems of health, sanitation. They are breeding
places for crime. They constitute proof that respect for the law and the rights of others, even those of
the government, are being flouted. Knowingly, squatters have embarked on the pernicious act of
occupying property whenever and wherever convenient to their interests — without as much as leave,
and even against the will, of the owner. They are emboldened seemingly because of their belief that
they could violate the law with impunity. The pugnaciousness of some of them has tied up the hands
of legitimate owners. The latter are thus prevented from recovering possession by peaceful means.
Government lands have not been spared by them. They know, of course, that intrusion into property,
government or private, is wrong. But, then, the mills of justice grind slow, mainly because of lawyers
who, by means, fair or foul, are quite often successful in procuring delay of the day of reckoning.
Rampancy of forcible entry into government lands particularly, is abetted by the apathy of some public
officials to enforce the government's rights. Obstinacy of these squatters is difficult to explain unless it
is spawned by official tolerance, if not outright encouragement or protection. Said squatters have
become insensible to the difference between right and wrong. To them, violation of law means nothing.
With the result that squatting still exists, much to the detriment of public interest. It is high time that, in
this aspect, sanity and the rule of law be restored. It is in this environment that we look into the validity
of the permits granted defendants herein.
These permits, erroneously labeled "lease" contracts, were issued by the mayors in 1947 and 1948
when the effects of the war had simmered down and when these defendants could have very well
adjusted themselves. Two decades have now elapsed since the unlawful entry. Defendants could have,
if they wanted to, located permanent premises for their abode. And yet, usurpers that they are, they
preferred to remain on city property.
Defendants' entry as aforesaid was illegal. Their constructions are as illegal, without permits.8 The city
charter enjoins the mayor to "safeguard all the lands" of the City of Manila.9
Surely enough, the permits granted did not "safeguard" the city's land in question. It is our considered
view that the Mayor of the City of Manila cannot legalize forcible entry into public property by the simple
expedient of giving permits, or, for that matter, executing leases.
Squatting is unlawful and no amount of acquiescence on the part of the city officials will elevate it into
a lawful act. In principle, a compound of illegal entry and official permit to stay is obnoxious to our
concept of proper official norm of conduct. Because, such permit does not serve social justice; it fosters
moral decadence. It does not promote public welfare; it abets disrespect for the law. It has its roots in
vice; so it is an infected bargain. Official approval of squatting should not, therefore, be permitted to
obtain in this country where there is an orderly form of government.
We, accordingly, rule that the Manila mayors did not have authority to give permits, written or oral, to
defendants, and that the permits herein granted are null and void.
3. Let us look into the houses and constructions planted by defendants on the premises. They clearly
hinder and impair the use of that property for school purposes. The courts may well take judicial notice
of the fact that housing school children in the elementary grades has been and still is a perennial
problem in the city. The selfish interests of defendants must have to yield to the general good. The
public purpose of constructing the school building annex is paramount.10
In the situation thus obtaining, the houses and constructions aforesaid constitute public nuisance per
se. And this, for the reason that they hinder and impair the use of the property for a badly needed school
building, to the prejudice of the education of the youth of the land.11 They shackle the hands of the
government and thus obstruct performance of its constitutionally ordained obligation to establish and
maintain a complete and adequate system of public education, and more, to "provide at least free public
primary instruction".12
Reason dictates that no further delay should be countenanced. The public nuisance could well have
been summarily abated by the city authorities themselves, even without the aid of the courts.13
4. Defendants challenge the jurisdiction of the Court of First Instance of Manila. They say that the case
should have been started in the municipal court. They prop up their position by the averment that notice
for them to vacate was only served in September, 1961, and suit was started in July, 1962. Their legal
ground is Section 1, Rule 70 of the Rules of Court. We have reached the conclusion that their forcible
entry dates back to the period from 1945 to 1947. That entry was not legalized by the permits. Their
possession continued to remain illegal from incipiency. Suit was filed long after the one-year limitation
set forth in Section 1 of Rule 70. And the Manila Court of First Instance has jurisdiction.14
Upon the premises, we vote to affirm the judgment under review. Costs against defendants-appellants.
So ordered.
Concepcion, C.J., Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar and Castro, JJ.,
concur.

Prieto vs Arroyo, 14 SCRA 549 (965), GR L17885

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-17885 June 30, 1965
GABRIEL P. PRIETO, plaintiff-appellant,
vs.
MEDEN ARROYO, JACK ARROYO, NONITO ARROYO and ZEFERINO ARROYO, JR., defendants-
appellees.
Prila, Pardalis and Pejo for plaintiff-appellant.
Quijano and Azores and J. P. Arroyo for defendants-appellees.
MAKALINTAL, J.:
Gabriel P. Prieto appealed to the Court of Appeals from the order of the Court of First Instance of
Camarines Sur dismissing his complaint in Civil Case No. 4280. Since only questions of law are
involved the appeal has been certified to this Court.
In 1948 Zeferino Arroyo, Sr. filed in the Court of First Instance of Camarines Sur a petition for
registration of several parcels of land, including Lot No. 2, Plan Psu-106730 (L.R.C. No. 144; G.L.R.O.
No. 1025). After the proper proceedings Original Certificate of Title No. 39 covering said lot was issued
in his name. The same year and in the same Court Gabriel P. Prieto filed a petition for registration of
an adjoining parcel of land, described as Lot No. 3, Plan Psu-117522 (L.R.C. No. 173; G.L.R.O. No.
1474). As a result Original Certificate of Title No. 11 was issued in his name.
After the death of Zeferino Arroyo, Sr., Original Certificate of Title No. 39 was cancelled and in lieu
thereof Transfer Certificate of Title No. 227 was issued in the names of his heirs, the defendants in this
case, namely Meden Jack, Joker, Nonito and Zeferino, Jr., all surnamed Arroyo.
On March 6, 1956 said heirs filed in the Court of First Instance of Camarines Sur a petition (L.R.C. No.
144; G.L.R.O. No. 1025; Special Proceedings No. 900) in which they claimed that the technical
description set forth in their transfer certificate of title and in the original certificate of their predecessor
did not conform with that embodied in the decision of the land registration court, and was less in area
by some 157 square meters. They therefore prayed that said description be corrected pursuant to
Section 112 of the Land Registration Act; that their certificate of title be cancelled and another one
issued to them containing the correct technical description. The petition was filed in the registration
record but was docketed as Special Proceedings No. 900.
On May 23, 1956 the court issued an order directing the Register of Deeds of Camarines Sur to
"change, upon payment of his fees, the description in Transfer Certificate of Title No. 227 of Lot 2 in
Plan Psu-106730 so as to make it conform to that embodied in the decision of the Court on March 8,
1950, and to correct therein the spelling of the name of one of the petitioners from 'Miden Arroyo' to
'Meden Arroyo'.
On November 29, 1956 Prieto filed against the defendants in the Court of First Instance of Camarines
Sur (in the original registration records of the two lots) a petition to annul the order of May 23 in Special
Proceedings No. 900. At the hearing of the petition on July 12, 1957 neither he nor his counsel
appeared. Consequently, the trial court on the same day issued an order dismissing the petition for
failure to prosecute. A motion for reconsideration of that order was denied on September 5, 1957.
On September 2, 1958 Prieto filed against the same defendants the present action for annulment of
Special Proceedings No. 900 and the order therein entered on May 23, 1956. He also prayed that the
157 square meters allegedly taken from his lot by virtue of said order be reconveyed to him.
Defendants moved to dismiss the complaint on the ground of res judicata. Plaintiff opposed, and on
January 15, 1959 the court granted the motion. It is from the order of dismissal, plaintiff having failed
to secure its reconsideration, that the appeal has been taken.
Appellant maintains that the institution of Special Proceedings No. 900 was irregular and illegal mainly
because he was not notified thereof and the same was instituted almost six years after the issuance of
the decree and title sought to be corrected, and hence the order of the court dated May 23, 1956 for
the correction of the technical description in appellees' title is void ab initio.
The issue here, however, is not the validity of said Special Proceedings No. 900 but the propriety of
the dismissal of appellant's complaint on the ground of res adjudicata. The validity of the said
proceedings was the issue in the first case he filed. But because of his failure and that of his counsel
to attend the hearing the court dismissed the case for failure to prosecute. Since no appeal was taken
from the order of dismissal it had the effect of an adjudication upon the merits, the court not having
provided otherwise (Rule 30, Section 3).
Appellant contends that said order could not have the effect of a judgment because the Court did not
acquire jurisdiction over the persons of the respondents therein, defendants-appellees here, as they
did not file any opposition or responsive pleading in that case. Appellees, on the other hand, allege that
they had voluntarily submitted to the court's jurisdiction after they were served copies of the petition.
This allegation finds support in the record, particularly in the following statement of appellant in his brief:
This petition was originally set for hearing on December 8, 1956, but was postponed to January 14,
1957, due to lack of notice to the respondents. Upon motion for postponements of respondents, now
defendants-appellees, the hearing of January 14, 1957 was postponed to May 16, 1957. The hearing
set for May 16, 1957 was again postponed upon motion of the respondents to July 12, 1957.
Appellant next points out that the lower court should not have dismissed his first petition for annulment
because no "parole" evidence need be taken to support it, the matters therein alleged being parts of
the records of L.R.C. No. 144, G.L.R.O. No. 1025, and L.R.C. 173, G.L.R.O. No. 1474, which were well
within the judicial notice and cognizance of the said court.
In the first place, as a general rule, courts are not authorized to take judicial notice in the adjudication
of cases pending before them, of the contents of other cases, even when such cases have been tried
or are pending in the same court, and notwithstanding the fact that both cases may have been tried or
are actually pending before the same judge (Municipal Council of San Pedro, Laguna, et al. v. Colegio
de San Jose, et al., 65 Phil. 318). Secondly, if appellant had really wanted the court to take judicial
notice of such records, he should have presented the proper request or manifestation to that effect
instead of sending, by counsel, a telegraphic motion for postponement of hearing, which the court
correctly denied. Finally, the point raised by counsel is now academic, as no appeal was taken from
the order dismissing his first petition, and said order had long become final when the complaint in the
present action was filed.
The contention that the causes of action in the two suits are different is untenable.
Both are based on the alleged nullity of Special Proceedings No. 900; in both appellant seeks that the
order of correction of the title of appellees be set aside. Of no material significance is the fact that in
the complaint in the instant case there is an express prayer for reconveyance of some 157 square
meters of land, taken from appellant as a result of such correction of title. For that area would
necessarily have reverted to appellant had his first petition prospered, the relief asked for by him being
that "the Register of Deeds of Camarines Sur be ordered to amend Certificate of Title No. 332 by
incorporating therein only and solely the description of Lot No. 2, plan Psu-106730 as appearing in the
Decree No. 5165 and maintaining consequently the description limits and area of the adjoining land of
the herein petitioner, Lot No. 3, plan Psu-117522, in accordance with Decree No. 2301 of Land
Registration No. 173." The claim for damages as well as for other additional and alternative reliefs in
the present case are not materially different from his prayer for "such other remedies, just and equitable
in the premises" contained in the former one.
There being identity of parties, subject matter and cause of action between the two cases, the order of
dismissal issued in the first constitutes a bar to the institution of the second.
The appealed order is affirmed, with costs against appellant.
Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Paredes, Dizon, Regala, Bengzon, J.P.,
and Zaldivar, JJ., concur.
Barrera, J., is on leave.

Baguio vs Vda. De Jalagat, 42 SCRA 337 (1971), GR L28100

Republic of the Philippines

SUPREME COURT
Manila
EN BANC

G.R. No. L-28100 November 29, 1971

GABRIEL BAGUIO, plaintiff-Appellant,
vs.
TEOFILA L. VDA. DE JALAGAT, for herself and in representation of her minor children,
DOMINADOR, LEA and TEONIFE all surnamed JALAGAT; ANABELLA JALAGAT and
EMMANUEL JALAGAT, defendants-appellees.
Bonifacio P. Legaspi for plaintiff-appellant.
Cecilio P. Luminarias for defendants-appellees.

FERNANDO, J.:
The specific legal question raised in this appeal from an order of dismissal by the Court of First Instance
of Misamis Oriental, presided by the Hon. Benjamin K. Gorospe, one which has not as yet been the
subject of a definitive ruling is whether or not on a motion to dismiss on the ground of res judicata that
the cause of action is barred by a prior judgment, a lower court may take judicial notice of such previous
case decided by him resulting in the prior judgment relied upon. Judge Gorospe answered in the
affirmative. So do we. An affirmance is thus called for.
The case started with the complaint for the quieting of title to real property filed by plaintiff, now
appellant, Gabriel Baguio, on February, 14, 1966. There was on March 7, 1966 a motion to dismiss
filed by defendants, now appellees, on the ground that the cause of action is barred by a prior judgment.
This was the argument advanced: "The instant complaint or case, besides being clearly unfounded and
malicious, is identical to or the same as that Civil Case No. 1574 filed by the same plaintiff and against
Melecio alias Mening Jalagat, now deceased and whose legal heirs and successors in interest are the
very defendants in the instant complaint or Civil Case No. 2639. Said Civil Case No. 1574 was filed on
October 7, 1958 for 'Recovery of Possession and Ownership of Real Estate' and entitled Gabriel
Baguio, plantiff, versus Melecio alias Mening Jalagat, defendant, involving practically the same property
and practically the same parties as defendants are the widow and the children, respectively, thus the
legal or forced heirs of the deceased Melecio Jalagat. That the said Case No. 1574, which is identical
to or is the same case as the instant one, has already been duly and finally terminated as could be
clear from [an] order of this Honorable Court [dated December 6, 1965]."1 There was an opposition on
the part of plaintiff made on March 26, 1966 on the ground that for prior judgment or res judicata to
suffice as a basis for dismissal it must be apparent on the face of the complaint. It was then alleged
that there was nothing in the complaint from which such a conclusion may be inferred. Then, on
September 26, 1966, came the order complained of worded thus: "Acting on the motion to dismiss filed
by counsel for the defendants under date of March 4, 1966, anchored on the ground that plaintiff's
cause of action is barred by a prior judgement which this Court finds to be well-founded as it has already
dismissed plaintiff's complaint in Civil Case No. 1574 against Melecio Jalagat alias Mening Jalagat,
defendants predecessor in interest from whom they have derived their rights, in an order dated
December 6, 1965, pursuant to Section 3 of Rule 17 of the new Rules of Court, which case involved
the same parcel of land as the one in the instant case, as prayed for, Civil Case No. 2639 should be as
it is hereby [dismissed]. The Court's previous dismissal of Civil Case No. 1574 has the effect of an
adjudication upon the merits and consequently is a bar to and may be pleaded in abatement of any
subsequent action against the same parties over the same issues and the same subject-matter by the
same plaintiff. [So ordered]"2 Hence, this appeal.
The order of dismissal, as noted at the outset, must be sustained. It is in accordance with law.
1. The sole error assigned is that a bar by prior judgement cannot be raised in a motion to dismiss when
such ground does not appear on the face of the complaint. What immediately calls attention in the
rather sketchy and in conclusive discussion in the six-page brief of applicant is that there was no denial
as to the truth of the statement made by Judge Gorospe that there was a previous dismissal the same
plaintiff's complaint against the predecessor-in-interest of defendants, who as expressly admitted by
appellant was the deceased husband of one of them and father of the rest. There was no denial either
of the property involved being the same and of the finality of the decsion in the previous case which
would show that appellant's claim was devoid of any support in law. It would be therefore futile for the
court to continue with the case as there had been such a prior judgment certainly binding on appellant.
What then was there for the lower court to do? Was there any sense in its being engaged in what was
essentially a fruitless, endeavor as the outcome was predictible?
Certainly, the law would lend itself to a well-deserved reproach if the Rules of Court would sanction
such a proceeding distinguished by nothing but its futility. It ought to be clear even to appellant that
under the circumstances, the lower court certainly could take judicial notice of the finality of a judgment
in a case that was previously pending and thereafter decided by it. That was all that was done by the
lower court in decreeing the dismissal. Certainly such an order is not contrary to law. A citation from
the comments of former Chief Justice Moran is relevant. Thus: "Courts have also taken judicial notice
of previous cases to determine whether or not the case pending is a moot one, or whether or not a
previous ruling is applicable in the case under consideration."3
2. There is another equally compelling consideration. Appellant undoubtedly had recourse to a remedy
which under the law then in force could be availed of. It would have served the cause of justice better,
not to mention the avoidance of needless expense on his part and the vexation to which appellees were
subjected if he did reflect a little more on the matter. Then the valuable time of this Tribunal would not
have been frittered away on a useless find hopeless appeal. It has, ever been the guiding principle from
Alonso v. Villamor,4 a 1910 decision, that a litigant should not be allowed to worship at the altar of
technicality. That is not to dispense justice according to law. Parties, and much more so their counsel,
should ever keep such an imperative of our legal system in mind.5
WHEREFORE, the order of dismissal of September 26, 1966 is hereby affirmed. With costs against
plaintiff.
Concepcion, C.J., Makalintal, Zaldivar, Castro, Barredo, Villamor and Makasiar, JJ., concur.
Reyes, J.B.L., J., concurs in the result.
 Yao-Kee vs Sy-Gonzales, 167 SCRA 736 (1988), GR L55960

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. L-55960 November 24, 1988
YAO KEE, SZE SOOK WAH, SZE LAI CHO, and SY CHUN YEN, petitioners,
vs.
AIDA SY-GONZALES, MANUEL SY, TERESITA SY-BERNABE, RODOLFO SY, and HONORABLE
COURT OF APPEALS, respondents.
Montesa, Albon, & Associates for petitioners.
De Lapa, Salonga, Fulgencio & De Lunas for respondents.

CORTES, J.:
Sy Kiat, a Chinese national. died on January 17, 1977 in Caloocan City where he was then residing,
leaving behind real and personal properties here in the Philippines worth P300,000.00 more or less.
Thereafter, Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy filed a petition for the
grant of letters of administration docketed as Special Proceedings Case No. C-699 of the then Court of
First Instance of Rizal Branch XXXIII, Caloocan City. In said petition they alleged among others that (a)
they are the children of the deceased with Asuncion Gillego; (b) to their knowledge Sy Mat died
intestate; (c) they do not recognize Sy Kiat's marriage to Yao Kee nor the filiation of her children to him;
and, (d) they nominate Aida Sy-Gonzales for appointment as administratrix of the intestate estate of
the deceased [Record on Appeal, pp. 4-9; Rollo, p. 107.]
The petition was opposed by Yao Kee, Sze Sook Wah, Sze Lai Cho and Sy Yun Chen who alleged
that: (a) Yao Kee is the lawful wife of Sy Kiat whom he married on January 19, 1931 in China; (b) the
other oppositors are the legitimate children of the deceased with Yao Kee; and, (c) Sze Sook Wah is
the eldest among them and is competent, willing and desirous to become the administratrix of the estate
of Sy Kiat [Record on Appeal, pp. 12-13; Rollo, p. 107.] After hearing, the probate court, finding among
others that:
(1) Sy Kiat was legally married to Yao Kee [CFI decision, pp. 12-27; Rollo, pp. 49-64;]
(2) Sze Sook Wah, Sze Lai Cho and Sze Chun Yen are the legitimate children of Yao Kee with Sy Mat
[CFI decision, pp. 28-31; Rollo. pp. 65-68;] and,
(3) Aida Sy-Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy are the acknowledged
illegitimate offsprings of Sy Kiat with Asuncion Gillego [CFI decision, pp. 27-28; Rollo, pp. 64- 65.]
held if favor of the oppositors (petitioners herein) and appointed Sze Sook Wah as the administratrix of
the intestate estate of the deceased [CFI decision, pp. 68-69; Rollo, pp. 105-106.]
On appeal the Court of Appeals rendered a decision modifying that of the probate court, the dispositive
portion of which reads:
IN VIEW OF THE FOREGOING, the decision of the lower Court is hereby MODIFIED and SET ASIDE
and a new judgment rendered as follows:
(1) Declaring petitioners Aida Sy-Gonzales, Manuel Sy, Teresita Sy- Bernabe and Rodolfo Sy
acknowledged natural children of the deceased Sy Kiat with Asuncion Gillego, an unmarried woman
with whom he lived as husband and wife without benefit of marriage for many years:
(2) Declaring oppositors Sze Sook Wah, Sze Lai Chu and Sze Chun Yen, the acknowledged natural
children of the deceased Sy Kiat with his Chinese wife Yao Kee, also known as Yui Yip, since the
legality of the alleged marriage of Sy Mat to Yao Kee in China had not been proven to be valid to the
laws of the Chinese People's Republic of China (sic);
(3) Declaring the deed of sale executed by Sy Kiat on December 7, 1976 in favor of Tomas Sy (Exhibit
"G-1", English translation of Exhibit "G") of the Avenue Tractor and Diesel Parts Supply to be valid and
accordingly, said property should be excluded from the estate of the deceased Sy Kiat; and
(4) Affirming the appointment by the lower court of Sze Sook Wah as judicial administratrix of the estate
of the deceased. [CA decision, pp. 11-12; Rollo, pp. 36- 37.]
From said decision both parties moved for partial reconsideration, which was however denied by
respondent court. They thus interposed their respective appeals to this Court.
Private respondents filed a petition with this Court docketed as G.R. No. 56045 entitled "Aida Sy-
Gonzales, Manuel Sy, Teresita Sy-Bernabe and Rodolfo Sy v. Court of Appeals, Yao Kee, Sze Sook
Wah, Sze Lai Cho and Sy Chun Yen" questioning paragraphs (3) and (4) of the dispositive portion of
the Court of Appeals' decision. The Supreme Court however resolved to deny the petition and the
motion for reconsideration. Thus on March 8, 1982 entry of judgment was made in G.R. No. 56045. **
The instant petition, on the other hand, questions paragraphs (1) and (2) of the dispositive portion of
the decision of the Court of Appeals. This petition was initially denied by the Supreme Court on June
22, 1981. Upon motion of the petitioners the Court in a resolution dated September 16, 1981
reconsidered the denial and decided to give due course to this petition. Herein petitioners assign the
following as errors:
I. RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN DECLARING THE MARRIAGE OF
SY KIAT TO YAO YEE AS NOT HAVE (sic) BEEN PROVEN VALID IN ACCORDANCE WITH LAWS
OF THE PEOPLE'S REPUBLIC OF CHINA.
II. RESPONDENT COURT OF APPEALS GRAVELY ERRED IN DECLARING AIDA SY-GONZALES,
MANUEL SY, TERESITA SY-BERNABE AND RODOLFO SY AS NATURAL CHILDREN OF SY KIAT
WITH ASUNCION GILLEGO. [Petition, p. 2; Rollo, p. 6.]
I. Petitioners argue that the marriage of Sy Kiat to Yao Kee in accordance with Chinese law and custom
was conclusively proven. To buttress this argument they rely on the following testimonial and
documentary evidence.
First, the testimony of Yao Kee summarized by the trial court as follows:
Yao Kee testified that she was married to Sy Kiat on January 19, 1931 in Fookien, China; that she does
not have a marriage certificate because the practice during that time was for elders to agree upon the
betrothal of their children, and in her case, her elder brother was the one who contracted or entered
into [an] agreement with the parents of her husband; that the agreement was that she and Sy Mat would
be married, the wedding date was set, and invitations were sent out; that the said agreement was
complied with; that she has five children with Sy Kiat, but two of them died; that those who are alive are
Sze Sook Wah, Sze Lai Cho, and Sze Chun Yen, the eldest being Sze Sook Wah who is already 38
years old; that Sze Sook Wah was born on November 7, 1939; that she and her husband, Sy Mat, have
been living in FooKien, China before he went to the Philippines on several occasions; that the practice
during the time of her marriage was a written document [is exchanged] just between the parents of the
bride and the parents of the groom, or any elder for that matter; that in China, the custom is that there
is a go- between, a sort of marriage broker who is known to both parties who would talk to the parents
of the bride-to-be; that if the parents of the bride-to-be agree to have the groom-to-be their son in-law,
then they agree on a date as an engagement day; that on engagement day, the parents of the groom
would bring some pieces of jewelry to the parents of the bride-to-be, and then one month after that, a
date would be set for the wedding, which in her case, the wedding date to Sy Kiat was set on January
19, 1931; that during the wedding the bridegroom brings with him a couch (sic) where the bride would
ride and on that same day, the parents of the bride would give the dowry for her daughter and then the
document would be signed by the parties but there is no solemnizing officer as is known in the
Philippines; that during the wedding day, the document is signed only by the parents of the bridegroom
as well as by the parents of the bride; that the parties themselves do not sign the document; that the
bride would then be placed in a carriage where she would be brought to the town of the bridegroom
and before departure the bride would be covered with a sort of a veil; that upon reaching the town of
the bridegroom, the bridegroom takes away the veil; that during her wedding to Sy Kiat (according to
said Chinese custom), there were many persons present; that after Sy Kiat opened the door of the
carriage, two old ladies helped her go down the carriage and brought her inside the house of Sy Mat;
that during her wedding, Sy Chick, the eldest brother of Sy Kiat, signed the document with her mother;
that as to the whereabouts of that document, she and Sy Mat were married for 46 years already and
the document was left in China and she doubt if that document can still be found now; that it was left in
the possession of Sy Kiat's family; that right now, she does not know the whereabouts of that document
because of the lapse of many years and because they left it in a certain place and it was already eaten
by the termites; that after her wedding with Sy Kiat, they lived immediately together as husband and
wife, and from then on, they lived together; that Sy Kiat went to the Philippines sometime in March or
April in the same year they were married; that she went to the Philippines in 1970, and then came back
to China; that again she went back to the Philippines and lived with Sy Mat as husband and wife; that
she begot her children with Sy Kiat during the several trips by Sy Kiat made back to China. [CFI
decision, pp. 13-15; Rollo, pp. 50-52.]
Second, the testimony of Gan Ching, a younger brother of Yao Kee who stated that he was among the
many people who attended the wedding of his sister with Sy Kiat and that no marriage certificate is
issued by the Chinese government, a document signed by the parents or elders of the parties being
sufficient [CFI decision, pp. 15-16; Rollo, pp.
52-53.]
Third, the statements made by Asuncion Gillego when she testified before the trial court to the effect
that (a) Sy Mat was married to Yao Kee according to Chinese custom; and, (b) Sy Kiat's admission to
her that he has a Chinese wife whom he married according to Chinese custom [CFI decision, p. 17;
Rollo, p. 54.]
Fourth, Sy Kiat's Master Card of Registered Alien issued in Caloocan City on October 3, 1972 where
the following entries are found: "Marital status—Married"; "If married give name of spouses—Yao Kee";
"Address-China; "Date of marriage—1931"; and "Place of marriage—China" [Exhibit "SS-1".]
Fifth, Sy Kiat's Alien Certificate of Registration issued in Manila on January 12, 1968 where the following
entries are likewise found: "Civil status—Married"; and, 'If married, state name and address of spouse—
Yao Kee Chingkang, China" [Exhibit "4".]
And lastly, the certification issued in Manila on October 28, 1977 by the Embassy of the People's
Republic of China to the effect that "according to the information available at the Embassy Mr. Sy Kiat
a Chinese national and Mrs. Yao Kee alias Yui Yip also Chinese were married on January 19, 1931 in
Fukien, the People's Republic of China" [Exhibit "5".]
These evidence may very well prove the fact of marriage between Yao Kee and Sy Kiat. However, the
same do not suffice to establish the validity of said marriage in accordance with Chinese law or custom.
Custom is defined as "a rule of conduct formed by repetition of acts, uniformly observed (practiced) as
a social rule, legally binding and obligatory" [In the Matter of the Petition for Authority to Continue Use
of the Firm Name "Ozaeta, Romulo, de Leon, Mabanta and Reyes", July 30, 1979, SCRA 3, 12 citing
JBL Reyes & RC Puno, Outline of Phil. Civil Law, Fourth Ed., Vol. 1, p. 7.] The law requires that "a
custom must be proved as a fact, according to the rules of evidence" [Article 12, Civil Code.] On this
score the Court had occasion to state that "a local custom as a source of right can not be considered
by a court of justice unless such custom is properly established by competent evidence like any other
fact" [Patriarca v. Orate, 7 Phil. 390, 395 (1907).] The same evidence, if not one of a higher degree,
should be required of a foreign custom.
The law on foreign marriages is provided by Article 71 of the Civil Code which states that:
Art. 71. All marriages performed outside the Philippines in accordance with the laws in force in the
country where they were performed and valid there as such, shall also be valid in this country, except
bigamous, Polygamous, or incestuous marriages, as determined by Philippine law. (Emphasis
supplied.) ***
Construing this provision of law the Court has held that to establish a valid foreign marriage two things
must be proven, namely: (1) the existence of the foreign law as a question of fact; and (2) the alleged
foreign marriage by convincing evidence [Adong v. Cheong Seng Gee, 43 Phil. 43, 49 (1922).]
In proving a foreign law the procedure is provided in the Rules of Court. With respect to an unwritten
foreign law, Rule 130 section 45 states that:
SEC. 45. Unwritten law.—The oral testimony of witnesses, skilled therein, is admissible as evidence of
the unwritten law of a foreign country, as are also printed and published books of reports of decisions
of the courts of the foreign country, if proved to be commonly admitted in such courts.
Proof of a written foreign law, on the other hand, is provided for under Rule 132 section 25, thus:
SEC. 25. Proof of public or official record.—An official record or an entry therein, when admissible for
any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer
having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in
the Philippines, with a certificate that such officer has the custody. If the office in which the record is
kept is in a foreign country, the certificate may be made by a secretary of embassy or legation, consul
general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines
stationed in the foreign country in which the record is kept and authenticated by the seal of his office.
The Court has interpreted section 25 to include competent evidence like the testimony of a witness to
prove the existence of a written foreign law [Collector of Internal Revenue v. Fisher 110 Phil. 686, 700-
701 (1961) citing Willamette Iron and Steel Works v. Muzzal, 61 Phil. 471 (1935).]
In the case at bar petitioners did not present any competent evidence relative to the law and custom of
China on marriage. The testimonies of Yao and Gan Ching cannot be considered as proof of China's
law or custom on marriage not only because they are
self-serving evidence, but more importantly, there is no showing that they are competent to testify on
the subject matter. For failure to prove the foreign law or custom, and consequently, the validity of the
marriage in accordance with said law or custom, the marriage between Yao Kee and Sy Kiat cannot be
recognized in this jurisdiction.
Petitioners contend that contrary to the Court of Appeals' ruling they are not duty bound to prove the
Chinese law on marriage as judicial notice thereof had been taken by this Court in the case of Sy Joc
Lieng v. Sy Quia [16 Phil. 137 (1910).]
This contention is erroneous. Well-established in this jurisdiction is the principle that Philippine courts
cannot take judicial notice of foreign laws. They must be alleged and proved as any other fact [Yam Ka
Lim v. Collector of Customs, 30 Phil. 46, 48 (1915); Fluemer v. Hix, 54 Phil. 610 (1930).]
Moreover a reading of said case would show that the party alleging the foreign marriage presented a
witness, one Li Ung Bieng, to prove that matrimonial letters mutually exchanged by the contracting
parties constitute the essential requisite for a marriage to be considered duly solemnized in China.
Based on his testimony, which as found by the Court is uniformly corroborated by authors on the subject
of Chinese marriage, what was left to be decided was the issue of whether or not the fact of marriage
in accordance with Chinese law was duly proven [Sy Joc Lieng v. Sy Quia, supra., at p. 160.]
Further, even assuming for the sake of argument that the Court has indeed taken judicial notice of the
law of China on marriage in the aforecited case, petitioners however have not shown any proof that the
Chinese law or custom obtaining at the time the Sy Joc Lieng marriage was celebrated in 1847 was
still the law when the alleged marriage of Sy Kiat to Yao Kee took place in 1931 or eighty-four (84)
years later.
Petitioners moreover cite the case of U.S. v. Memoracion [34 Phil. 633 (1916)] as being applicable to
the instant case. They aver that the judicial pronouncement in the Memoracion case, that the testimony
of one of the contracting parties is competent evidence to show the fact of marriage, holds true in this
case.
The Memoracion case however is not applicable to the case at bar as said case did not concern a
foreign marriage and the issue posed was whether or not the oral testimony of a spouse is competent
evidence to prove the fact of marriage in a complaint for adultery.
Accordingly, in the absence of proof of the Chinese law on marriage, it should be presumed that it is
the same as ours *** [Wong Woo Yiu v. Vivo, G.R. No. L-21076, March 31, 1965, 13 SCRA 552, 555.]
Since Yao Kee admitted in her testimony that there was no solemnizing officer as is known here in the
Philippines [See Article 56, Civil Code] when her alleged marriage to Sy Mat was celebrated [CFI
decision, p. 14; Rollo, p. 51], it therefore follows that her marriage to Sy Kiat, even if true, cannot be
recognized in this jurisdiction [Wong Woo Yiu v. Vivo, supra., pp. 555-556.]
II. The second issue raised by petitioners concerns the status of private respondents.
Respondent court found the following evidence of petitioners' filiation:
(1) Sy Kiat's Master Card of Registered Alien where the following are entered: "Children if any: give
number of children—Four"; and, "Name—All living in China" [Exhibit "SS-1";]
(2) the testimony of their mother Yao Kee who stated that she had five children with Sy Kiat, only three
of whom are alive namely, Sze Sook Wah, Sze Lai Chu and Sze Chin Yan [TSN, December 12, 1977,
pp. 9-11;] and,
(3) an affidavit executed on March 22,1961 by Sy Kiat for presentation to the Local Civil Registrar of
Manila to support Sze Sook Wah's application for a marriage license, wherein Sy Kiat expressly stated
that she is his daughter [Exhibit "3".]
Likewise on the record is the testimony of Asuncion Gillego that Sy Kiat told her he has three daughters
with his Chinese wife, two of whom—Sook Wah and Sze Kai Cho—she knows, and one adopted son
[TSN, December 6,1977, pp. 87-88.]
However, as petitioners failed to establish the marriage of Yao Kee with Sy Mat according to the laws
of China, they cannot be accorded the status of legitimate children but only that of acknowledged
natural children. Petitioners are natural children, it appearing that at the time of their conception Yao
Kee and Sy Kiat were not disqualified by any impediment to marry one another [See Art. 269, Civil
Code.] And they are acknowledged children of the deceased because of Sy Kiat's recognition of Sze
Sook Wah [Exhibit "3"] and its extension to Sze Lai Cho and Sy Chun Yen who are her sisters of the
full blood [See Art. 271, Civil Code.]
Private respondents on the other hand are also the deceased's acknowledged natural children with
Asuncion Gillego, a Filipina with whom he lived for twenty-five (25) years without the benefit of marriage.
They have in their favor their father's acknowledgment, evidenced by a compromise agreement entered
into by and between their parents and approved by the Court of First Instance on February 12, 1974
wherein Sy Kiat not only acknowleged them as his children by Asuncion Gillego but likewise made
provisions for their support and future inheritance, thus:
xxx xxx xxx
2. The parties also acknowledge that they are common-law husband and wife and that out of such
relationship, which they have likewise decided to definitely and finally terminate effective immediately,
they begot five children, namely: Aida Sy, born on May 30, 1950; Manuel Sy, born on July 1, 1953;
Teresita Sy, born on January 28, 1955; Ricardo Sy now deceased, born on December 14, 1956; and
Rodolfo Sy, born on May 7, 1958.
3. With respect to the AVENUE TRACTOR AND DIESEL PARTS SUPPLY ... , the parties mutually
agree and covenant that—
(a) The stocks and merchandize and the furniture and equipments ..., shall be divided into two equal
shares between, and distributed to, Sy Kiat who shall own
one-half of the total and the other half to Asuncion Gillego who shall transfer the same to their children,
namely, Aida Sy, Manuel Sy, Teresita Sy, and Rodolfo Sy.
(b) the business name and premises ... shall be retained by Sy Kiat. However, it shall be his obligation
to give to the aforenamed children an amount of One Thousand Pesos ( Pl,000.00 ) monthly out of the
rental of the two doors of the same building now occupied by Everett Construction.
xxx xxx xxx
(5) With respect to the acquisition, during the existence of the
common-law husband-and-wife relationship between the parties, of the real estates and properties
registered and/or appearing in the name of Asuncion Gillego ... , the parties mutually agree and
covenant that the said real estates and properties shall be transferred in equal shares to their children,
namely, Aida Sy, Manuel Sy, Teresita Sy, and Rodolfo Sy, but to be administered by Asuncion Gillego
during her lifetime ... [Exhibit "D".] (Emphasis supplied.)
xxx xxx xxx
This compromise agreement constitutes a statement before a court of record by which a child may be
voluntarily acknowledged [See Art. 278, Civil Code.]
Petitioners further argue that the questions on the validity of Sy Mat's marriage to Yao Kee and the
paternity and filiation of the parties should have been ventilated in the Juvenile and Domestic Relations
Court.
Specifically, petitioners rely on the following provision of Republic Act No. 5502, entitled "An Act
Revising Rep. Act No. 3278, otherwise known as the Charter of the City of Caloocan', with regard to
the Juvenile and Domestic Relations Court:
SEC. 91-A. Creation and Jurisdiction of the Court.—
xxx xxx xxx
The provisions of the Judiciary Act to the contrary notwithstanding, the court shall have exclusive
original jurisdiction to hear and decide the following cases:
xxx xxx xxx
(2) Cases involving custody, guardianship, adoption, revocation of adoption, paternity and
acknowledgment;
(3) Annulment of marriages, relief from marital obligations, legal separation of spouses, and actions for
support;
(4) Proceedings brought under the provisions of title six and title seven, chapters one to three of the
civil code;
xxx xxx xxx
and the ruling in the case of Bartolome v. Bartolome [G.R. No. L-23661, 21 SCRA 1324] reiterated in
Divinagracia v. Rovira [G.R. No. L-42615, 72 SCRA 307.]
With the enactment of Batas Pambansa Blg. 129, otherwise known as the Judiciary Reorganization Act
of 1980, the Juvenile and Domestic Relations Courts were abolished. Their functions and jurisdiction
are now vested with the Regional Trial Courts [See Section 19 (7), B.P. Blg. 129 and Divinagracia v.
Belosillo, G.R. No. L-47407, August 12, 1986, 143 SCRA 356, 360] hence it is no longer necessary to
pass upon the issue of jurisdiction raised by petitioners.
Moreover, even without the exactment of Batas Pambansa Blg. 129 we find in Rep. Act No. 5502 sec.
91-A last paragraph that:
xxx xxx xxx
If any question involving any of the above matters should arise as an incident in any case pending in
the ordinary court, said incident shall be determined in the main case.
xxx xxx xxx
As held in the case of Divinagracia v. Rovira [G.R. No. L42615. August 10, 1976, 72 SCRA 307]:
xxx xxx xxx
It is true that under the aforequoted section 1 of Republic Act No. 4834 **** a case involving paternity
and acknowledgment may be ventilated as an incident in the intestate or testate proceeding (See
Baluyot vs. Ines Luciano, L-42215, July 13, 1976). But that legal provision presupposes that such an
administration proceeding is pending or existing and has not been terminated. [at pp. 313-314.]
(Emphasis supplied.)
xxx xxx xxx
The reason for ths rule is not only "to obviate the rendition of conflicting rulings on the same issue by
the Court of First Instance and the Juvenile and Domestic Relations Court" [Vda. de Baluyut v. Luciano,
G.R. No. L-42215, July 13, 1976, 72 SCRA 52, 63] but more importantly to prevent multiplicity of suits.
Accordingly, this Court finds no reversible error committed by respondent court.
WHEREFORE, the decision of the Court of Appeals is hereby AFFIRMED.
SO ORDERED.
Fernan, C.J., Gutierrez, Jr., Feliciano and Bidin, JJ., concur.

Tabuena vs CA, 196 SCRA 650 (1991), GR 85423

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 85423 May 6, 1991
JOSE TABUENA, petitioner,
vs.
COURT OF APPEALS and EMILIANO TABERNILLA, JR., respondents.
Ramon Dimen for petitioner.
Dionisio A. Hernandez for private respondent.

CRUZ, J.:
The petitioner faults the decision of the trial court, as affirmed by the respondent court, for lack of basis.
It is argued that the lower courts should not have taken into account evidence not submitted by the
private respondent in accordance with the Rules of Court.
The subject of the dispute is a parcel of residential land consisting of about 440 square meters and
situated in Poblacion, Makato, Aklan. In 1973, an action for recovery of ownership thereof was filed in
the Regional Trial Court of Aklan by the estate of Alfredo Tabernilla against Jose Tabuena, the herein
petitioner. After trial, judgment was rendered in favor of the plaintiff and the defendant was required to
vacate the disputed lot.1
As the trial court found, the lot was sold by Juan Peralta, Jr. sometime in 1926 to Alfredo Tabernilla
while the two were in the United States. Tabernilla returned to the Philippines in 1934, and Damasa
Timtiman, acting upon her son Juan's instruction, conveyed the subject land to Tabernilla. At the same
time, she requested that she be allowed to stay thereon as she had been living there all her life.
Tabernilla agreed provided she paid the realty taxes on the property, which she promised to do, and
did. She remained on the said land until her death, following which the petitioner, her son and half-
brother of Juan Peralta, Jr., took possession thereof. The complaint was filed when demand was made
upon Tabuena to surrender the property and he refused, claiming it as his own.
The trial court rejected his defense that he was the absolute owner of the lot, which he inherited from
his parents, who acquired it even before World War II and had been living thereon since then and until
they died. Also disbelieved was his contention that the subject of the sale between Peralta and
Tabernilla was a different piece of land planted to coconut trees and bounded on three sides by the
Makato River.
Tabuena appealed to the respondent court, complaining that, in arriving at its factual findings, the trial
court motu proprio took cognizance of Exhibits "A", "B" and "C", which had been marked by the plaintiff
but never formally submitted in evidence. The trial court also erred when, to resolve the ownership of
the subject lot, it considered the proceedings in another case involving the same parties but a different
parcel of land.
The said exhibits are referred to in the pre-trial order as follows:
Plaintiff proceeded to mark the following exhibits: Exh. "A", letter dated October 4, 1921 addressed in
Makato, Capiz, Philippines; Exh. "A-1", paragraph 2 of the letter indicating that the amount of P600.00—
the first P300.00 and then another P300.00 as interest since October 4, 1921; Exh. "A-2", is paragraph
3 of the letter; Exh. "B", a Spanish document; Exh. "C", deed of conveyance filed by Tomasa Timtiman
and Alfredo Tabernilla in 1923; and Exh. "C-1", paragraph 4 of Exh. "C".
In sustaining the trial court, the respondent court held that, contrary to the allegations of the appellant,
the said exhibits were in fact formally submitted in evidence as disclosed by the transcript of
stenographic notes, which it quoted at length.2 The challenged decision also upheld the use by the trial
court of testimony given in an earlier case, to bolster its findings in the second case.
We have examined the record and find that the exhibits submitted were not the above-described
documents but Exhibits "X" and "T" and their sub-markings, which were the last will and testament of
Alfredo Tabernilla and the order of probate. It is not at all denied that the list of exhibits does not include
Exhibits "A", "B" and "C". In fact, the trial court categorically declared that "Exhibits "A-1, "A-2", "B", "C"
and "C-l," were not among those documents or exhibits formally offered for admission by plaintiff-
administratrix." This is a clear contradiction of the finding of the appellate court, which seems to have
confused Exhibits "A," "B" and "C" with Exhibits "X" and "Y", the evidence mentioned in the quoted
transcript.
Rule 132 of the Rules of Court provides in Section 35 thereof as follows:
Sec. 35. Offer of evidence.—The court shall consider no evidence which has not been formally offered.
The purpose for which the evidence is offered must be specified.
The mere fact that a particular document is marked as an exhibit does not mean it has thereby already
been offered as part of the evidence of a party. It is true that Exhibits "A," "B" and "C" were marked at
the pre-trial of the case below, but this was only for the purpose of identifying them at that time. They
were not by such marking formally offered as exhibits. As we said in Interpacific Transit, Inc. vs. Aviles,3
"At the trial on the merits, the party may decide to formally offer (the exhibits) if it believes they will
advance its cause, and then again it may decide not to do so at all. In the latter event, such documents
cannot be considered evidence, nor can they be given any evidentiary value."
Chief Justice Moran explained the rationale of the rule thus:
. . . The offer is necessary because it is the duty of a judge to rest his findings of facts and his judgment
only and strictly upon the evidence offered by the patties at the trial.4
We did say in People vs. Napat-a5 that even if there be no formal offer of an exhibit, it may still be
admitted against the adverse party if, first, it has been duly identified by testimony duly recorded and,
second, it has itself been incorporated in the records of the case. But we do not find that these
requirements have been satisfied in the case before us. The trial court said the said exhibits could be
validly considered because, even if they had not been formally offered, one of the plaintiffs witnesses,
Cunegunda Hernandez, testified on them at the trial and was even cross-examined by the defendant's
counsel. We do not agree. Although she did testify, all she did was identify the documents. Nowhere in
her testimony can we find a recital of the contents of the exhibits.
Thus, her interrogation on Exhibit "A" ran:
LEGASPI: That is this Exh. "A" about ?
A The translation of the letter.
Q What is the content of this Exh. "A", the letter of the sister of Juan Peralta to Alfredo Tabernilla?
Court: The best evidence is the document. Proceed.6
She also did not explain the contents of the other two exhibits.
The respondent court also held that the trial court committed no reversible error in taking judicial notice
of Tabuena's testimony in a case it had previously heard which was closely connected with the case
before it. It conceded that as a general rule "courts are not authorized to take judicial notice, in the
adjudication of cases pending before them, of the contents of the records of other cases, even when
such cases have been tried or are pending in the same court, and notwithstanding the fact that both
cases may have been heard or are actually pending b before the same judge.7 Nevertheless, it applied
the exception that:
. . . in the absence of objection, and as a matter of convenience to all parties, a court may properly treat
all or any part of the original record of a case filed in its archives as read into the record of a case
pending before it, when, with the knowledge of the opposing party, reference is made to it for that
purpose, by name and number or in some other manner by which it is sufficiently designated; or when
the original record of the former case or any part of it, is actually withdrawn from the archives by the
court's direction, at the request or with the consent of the parties, and admitted as a part of the record
of the case then pending.8
It is clear, though, that this exception is applicable only when, "in the absence of objection," "with the
knowledge of the opposing party," or "at the request or with the consent of the parties," the case is
clearly referred to or "the original or part of the records of the case are actually withdrawn from the
archives" and "admitted as part of the record of the case then pending." These conditions have not
been established here. On the contrary, the petitioner was completely unaware that his testimony in
Civil Case No. 1327 was being considered by the trial court in the case then pending before it. As the
petitioner puts it, the matter was never taken up at the trial and was "unfairly sprung" upon him, leaving
him no opportunity to counteract.
The respondent court said that even assuming that the trial court improperly took judicial notice of the
other case, striking off all reference thereto would not be fatal to the plaintiff's cause because "the said
testimony was merely corroborative of other evidences submitted by the plaintiff." What "other
evidences"? The trouble with this justification is that the exhibits it intends to corroborate, to wit, Exhibits
"A", "B" and "C", have themselves not been formally submitted.
Considering the resultant paucity of the evidence for the private respondent, we feel that the complaint
should have been dismissed by the trial court for failure of the plaintiff to substantiate its allegations. It
has failed to prove that the subject lot was the same parcel of land sold by Juan Peralta, Jr. to Alfredo
Tabernilla and not another property, as the petitioner contends. Even assuming it was the same lot,
there is no explanation for the sale thereof by Juan Peralta, Jr., who was only the son of Damasa
Timtiman. According to the trial court, "there is no question that before 1934 the land in question
belonged to Damasa Timtiman." Juan Peralta, Jr. could not have validly conveyed title to property that
did not belong to him unless he had appropriate authorization from the owner. No such authorization
has been presented.
It is true that tax declarations are not conclusive evidence of ownership, as we have held in many
cases.1âwphi1 However, that rule is also not absolute and yields to the accepted and well-known
exception. In the case at bar, it is not even disputed that the petitioner and his predecessors-in-interest
have possessed the disputed property since even before World War II. In light of this uncontroverted
fact, the tax declarations in their name become weighty and compelling evidence of the petitioner's
ownership. As this Court has held:
While it is true that by themselves tax receipts and declarations of ownership for taxation purposes are
not incontrovertible evidence of ownership they become strong evidence of ownership acquired by
prescription when accompanied by proof of actual possession of the property.9
It is only where payment of taxes is accompanied by actual possession of the land covered by the tax
declaration that such circumstance may be material in supporting a claim of ownership.10
The tax receipts accompanied by actual and continuous possession of the subject parcels of land by
the respondents and their parents before them for more than 30 years qualify them to register title to
the said subject parcels of land.11
The Court can only wonder why, if Alfredo Tabernilla did purchase the property and magnanimously
allowed Damasa Timtiman to remain there, he did not at least require her to pay the realty taxes in his
name, not hers. The explanation given by the trial court is that he was not much concerned with the
property, being a bachelor and fond only of the three dogs he had bought from America. That is
specious reasoning. At best, it is pure conjecture. If he were really that unconcerned, it is curious that
he should have acquired the property in the first place, even as dacion en pago. He would have
demanded another form of payment if he did not have the intention at all of living on the land. On the
other hand, if he were really interested in the property, we do not see why he did not have it declared
in his name when the realty taxes thereon were paid by Damasa Timtiman or why he did not object
when the payments were made in her own name.
In comparison, all the acts of Damasa Timtiman and Jose Tabuena indicate that they were the owners
of the disputed property. Damasa Timtiman and her forebears had been in possession thereof for more
than fifty years and, indeed, she herself stayed there until she died.12 She paid the realty taxes thereon
in her own name.13 Jose Tabuena built a house of strong materials on the lot.14 He even mortgaged
the land to the Development Bank of the Philippines and to two private persons who acknowledged him
as the owner.15 These acts denote ownership and are not consistent with the private respondent's claim
that the petitioner was only an overseer with mere possessory rights tolerated by Tabernilla.
It is the policy of this Court to accord proper deference to the factual findings of the courts below and
even to regard them as conclusive where there is no showing that they have been reached arbitrarily.
The exception is where such findings do not conform to the evidence on record and appear indeed to
have no valid basis to sustain their correctness. As in this case.
The conclusions of the trial court were based mainly on Exhibits "A", "B" and "C", which had not been
formally offered as evidence and therefore should have been totally disregarded, conformably to the
Rules of Court. The trial court also erred when it relied on the evidence submitted in Civil Case No.
1327 and took judicial notice thereof without the consent or knowledge of the petitioner, in violation of
existing doctrine. Thus vitiated, the factual findings here challenged are as an edifice built upon shifting
sands and should not have been sustained by the respondent court.
Our own finding is that the private respondent, as plaintiff in the lower court, failed to prove his claim of
ownership over the disputed property with evidence properly cognizable under our adjudicative laws.
By contrast, there is substantial evidence supporting the petitioner's contrary contentions that should
have persuaded the trial judge to rule in s favor and dismiss the complaint.
WHEREFORE, the petition is GRANTED. The appealed decision is REVERSED and SET ASIDE, with
costs against the private respondent. It is so ordered.
Narvasa, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

People vs Godoy, 250 SCRA 676 (1995), GR 115908-09

Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. Nos. 115908-09 December 6, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DANNY GODOY, * accused-appellant.

REGALADO, J.:
Often glossed over in the emotional arguments against capital punishment is the amplitude of legal
protection accorded to the offender. Ignored by the polemicist are the safeguards designed to minimally
reduce, if not altogether eliminate, the grain of human fault. Indeed, there is no critique on the plethora
of rights enjoyed by the accused regardless of how ruthlessly he committed the crime. Any margin of
judicial error is further addressed by the grace of executive clemency. But, even before that, all
convictions imposing the penalty of death are automatically reviewed by this Court. The cases at bar,
involving two death sentences, apostrophize for the condemned the role of this ultimate judicial
intervention.
Accused-appellant Danny Godoy was charged in two separate informations filed before the Regional
Trial Court, for Palawan and Puerto Princesa City, Branch 47, with rape and kidnapping with serious
illegal detention, respectively punished under Articles 335 and 267 of the Revised Penal Code, to wit:
In Criminal Case No. 11640 for Rape:
That on or about the evening of the 21st day of January, 1994, at Barangay Pulot Center, Municipality
of Brooke's Point, Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court,
the said accused by means of force, threat and intimidation, by using a knife and by means of deceit,
did then and there wilfully, unlawfully and feloniously have carnal knowledge with one Mia Taha to her
damage and prejudice.1
In Criminal Case No. 11641 for Kidnapping with Serious Illegal Detention:
That on or about the 22nd day of January, 1994, at Barangay Ipilan, Municipality of Brooke's Point,
Province of Palawan, Philippines, and within the jurisdiction of this Honorable Court, the said accused,
a private individual, and being a teacher of the victim, Mia Taha, and by means of deceit did then and
there wilfully, unlawfully and feloniously kidnap or detained (sic) said Mia Taha, a girl of 17 years old
(sic), for a period of five (5) days thus thereby depriving said Mia Taha of her liberty against her will and
consent and without legal justification, to the damage and prejudice of said Mia Taha.2
During the arraignment on both indictments, appellant pleaded not guilty to said charges and, after the
pre-trial was terminated, a joint trial of the two cases was conducted by the trial court.3
According to complainant Mia Taha, at around 7:00 P.M. of January 21, 1994, she went to the boarding
house of her cousin, Merlylyn Casantosan, at Pulot Center, Brooke's Point which is near the Palawan
National School (PNS), Pulot Branch, where she was studying. When she saw that the house was dark,
she decided to pass through the kitchen door at the back because she knew that there was nobody
inside. As soon as she opened the door, somebody suddenly grabbed her, poked a knife on her neck,
dragged her by the hand and told her not to shout. She was then forced to lie down on the floor.
Although it was dark, complainant was able to recognize her assailant, by the light coming from the
moon and through his voice, as accused-appellant Danny Godoy who was her Physics teacher at PNS.
When she was already on the floor, appellant removed her panty with one hand while holding the knife
with the other hand, opened the zipper of his pants, and then inserted his private organ inside her
private parts against her will. She felt pain because it was her first experience and she cried. Throughout
her ordeal, she could not utter a word. She was very frightened because a knife was continually pointed
at her. She also could not fight back nor plead with appellant not to rape her because he was her
teacher and she was afraid of him. She was threatened not to report the incident to anyone or else she
and her family would be killed.
Thereafter, while she was putting on her panty, she noticed that her skirt was stained with blood.
Appellant walked with her to the gate of the house and she then proceeded alone to the boarding house
where she lived. She did not see where appellant went after she left him at the gate. When she arrived
at her boarding house, she saw her landlady but she did not mention anything about the incident.
The following morning, January 22, 1994, complainant went home to her parents' house at Ipilan,
Brooke's Point. She likewise did not tell her parents about the incident for fear that appellant might
make good his threat. At around 3:00 P.M. of that same day, appellant arrived at the house of her
parents and asked permission from the latter if complainant could accompany him to solicit funds
because she was a candidate for "Miss PNS Pulot." When her parents agreed, she was constrained to
go with appellant because she did not want her parents to get into trouble.
Appellant and complainant then left the house and they walked in silence, with Mia following behind
appellant, towards the highway where appellant hailed a passenger jeep which was empty except for
the driver and the conductor. She was forced to ride the jeep because appellant threatened to kill her
if she would not board the vehicle. The jeep proceeded to the Sunset Garden at the poblacion, Brooke's
Point where they alighted.
At the Sunset Garden, appellant checked in and brought her to a room where they staye d for three
days. During the entire duration of their stay at the Sunset Garden, complainant was not allowed to
leave the room which was always kept locked. She was continuously guarded and constantly raped by
appellant. She was, however, never drunk or unconscious. Nonetheless, she was forced to have sex
with appellant because the latter was always carrying a knife with him.
In the early morning of January 25, 1994, appellant brought her to the house of his friend at Edward's
Subdivision where she was raped by him three times. She was likewise detained and locked inside the
room and tightly guarded by appellant. After two days, or on January 27, 1994, they left the place
because appellant came to know that complainant had been reported and indicated as a missing person
in the police blotter. They went to see a certain Naem ** from whom appellant sought help. On that
same day, she was released but only after her parents agreed to settle the case with appellant.
Immediately thereafter, Mia's parents brought her to the District Hospital at Brooke's Point where she
was examined by Dr. Rogelio Divinagracia who made the following medical findings:
GENERAL: Well developed, nourished, cooperative, walking, conscious, coherent Filipina.
BREAST: Slightly globular with brown colored areola and nipple.
EXTERNAL EXAM.: Numerous pubic hair, fairly developed labia majora and minora, hymenal opening
stellate in shape, presence of laceration superficial, longitudinal at the fossa navicularis, approximately
1/2 cm. length.
INTERNAL EXAM.: Hymenal opening, stellate in shape, laceration noted, hymenal opening admits 2
fingers with slight resistance, prominent vaginal rugae, cervix closed.
CONCLUSION: Hymenal opening admits easily 2 fingers with slight resistance, presence of laceration,
longitudinal at the fossa navicularis approximately 1/2 cm. length. Hymenal opening can admit an
average size penis in erection with laceration.4
Dr. Divinagracia further testified that the hymenal opening was in stellate shape and that there was a
laceration, which shows that complainant had participated in sexual intercourse. On the basis of the
inflicted laceration which was downward at 6 o'clock position, he could not say that there was force
applied because there were no scratches or bruises, but only a week-old laceration. He also examined
the patient bodily but found no sign of bruises or injuries. The patient told him that she was raped.
During the cross-examination, complainant denied that she wrote the letters marked as Exhibits "1" and
"2"; that she never loved appellant but, on the contrary, she hated him because of what he did to her;
and that she did not notice if there were people near the boarding house of her cousin. She narrated
that when appellant started to remove her panty, she was already lying down, and that even as
appellant was doing this she could not shout because she was afraid. She could not remember with
which hand appellant held the knife. She was completely silent from the time she was made to lie down,
while her panty was being removed, and even until appellant was able to rape her.
When appellant went to their house the following day, she did not know if he was armed but there was
no threat made on her or her parents. On the contrary, appellant even courteously asked permission
from them in her behalf and so they left the house with appellant walking ahead of her. When she was
brought to the Sunset Garden, she could not refuse because she was afraid. However, she admitted
that at that time, appellant was not pointing a knife at her. She only saw the cashier of the Sunset
Garden but she did not notice if there were other people inside. She likewise did not ask the appellant
why he brought her there.
Complainant described the lock in their room as an ordinary doorknob, similar to that on the door of the
courtroom which, even if locked, could still be opened from the inside, and she added that there was a
sliding lock inside the room. According to her, they stayed at Sunset Garden for three days and three
nights but she never noticed if appellant ever slept because everytime she woke up, appellant was
always beside her. She never saw him close his eyes.
Helen Taha, the mother of complainant, testified that when the latter arrived at their house in the
morning of January 22, 1994, she noticed that Mia appeared weak and her eyes were swollen. When
she asked her daughter if there was anything wrong, the latter merely kept silent. That afternoon, she
allowed Mia to go with appellant because she knew he was her teacher. However, when Mia and
appellant failed to come home at the expected time, she and her husband, Adjeril, went to look for them
at Ipilan. When they could not find them there, she went to the house of appellant because she was
already suspecting that something was wrong, but appellant's wife told her that he did not come home.
Early the next morning, she and her husband went to the Philippine National Police (PNP) station at
Pulot, Brooke's Point and had the incident recorded in the police blotter. The following day, they went
to the office of the National Bureau of Investigation (NBI) at Puerto Princess City, then to the police
station near the NBI, and finally to the radio station airing the Radyo ng Bayan program where she
made an appeal to appellant to return her daughter. When she returned home, a certain Naem was
waiting there and he informed her that Mia was at Brooke's Point. He further conveyed appellant's
willingness to become a Muslim so he could marry Mia and thus settle the case. Helen Taha readily
acceded because she wanted to see her daughter.
In the morning of January 27, 1994, she went to the house of Naem who sent somebody to fetch
complainant. She testified that when Mia arrived, she was crying as she reported that she was raped
by appellant, and that the latter threatened to kill her if she did not return within an hour. Because of
this, she immediately brought Mia to the hospital where the latter was examined and then they
proceeded to the municipal hall to file a complaint for rape and kidnapping. Both Mia and Helen Taha
executed separate sworn statements before the PNP at Brooke's Point.
Later, Fruit Godoy, the wife of appellant, went to their house and offered P50,000.00 for the settlement
of the case. On their part, her husband insisted that they just settle, hence all three of them, Adjeril,
Helen and Mia Taha, went to the Office of the Provincial Prosecutor where they met with the mother of
appellant who gave them P30,000.00. Adjeril and Helen Taha subsequently executed an affidavit of
desistance in Criminal Case No. 7687 for kidnapping pending in the prosecutor's office, which was
sworn to before Prosecutor II Chito S. Meregillano. Helen Taha testified that she agreed to the
settlement because that was what her husband wanted. Mia Taha was dropped from the school and
was not allowed to graduate. Her father died two months later, supposedly because of what happened.
The defense presented a different version of what actually transpired.
According to appellant, he first met Mia Taha sometime in August, 1993 at the Palawan National School
(PNS). Although he did not court her, he fell in love with her because she often told him "Sir, I love you."
What started as a joke later developed into a serious relationship which was kept a secret from
everybody else. It was on December 20, 1993 when they first had sexual intercourse as lovers.
Appellant was then assigned at the Narra Pilot Elementary School at the poblacion because he was
the coach of the Palawan delegation for chess. At around 5:00 P.M. of that day, complainant arrived at
his quarters allegedly because she missed him, and she then decided to spend the night there with
him.
Exactly a month thereafter, specifically in the evening of January 20, 1994, Erna Baradero, a teacher
at the PNS, was looking inside the school building for her husband, who was a security guard of PNS,
when she heard voices apparently coming from the Orchids Room. She went closer to listen and she
heard a girl's voice saying "Mahal na mahal kita, Sir, iwanan mo ang iyong asawa at tatakas tayo."
Upon hearing this, she immediately opened the door and was startled to see Mia Taha and Danny
Godoy holding hands. She asked them what they were doing there at such an unholy hour but the two,
who were obviously caught by surprise, could not answer. She then hurriedly closed the door and left.
According to this witness, complainant admitted to her that she was having an affair with appellant.
Desirous that such illicit relationship must be stopped, Erna Baradero informed appellant's wife about
it when the latter arrived from Manila around the first week of February, 1994.
Upon the request of appellant's wife, Erna Baradero executed an affidavit in connection with the present
case, but the same was not filed then because of the affidavit of desistance which was executed and
submitted by the parents of complainant. In her sworn statement, later marked in evidence as Exhibit
"7", Erna Baradero alleged that on January 21, 1994, she confronted Mia Taha about the latter's
indiscretion and reminded her that appellant is a married man, but complainant retorted, "Ano ang
pakialam mo," adding that she loves appellant very much.
Appellant testified that on January 21, 1994, at around 7:00 P.M., Mia Taha went to his office asking
for help with the monologue that she would be presenting for the Miss PNS contest. He agreed to meet
her at the house of her cousin, Merlylyn Casantosan. However, when he reached the place, the house
was dark and he saw Mia waiting for him outside. Accordingly, they just sat on a bench near the road
where there was a lighted electric post and they talked about the matter she had earlier asked him
about. They stayed there for fifteen minutes, after which complainant returned to her boarding house
just across the street while appellant headed for home some fifteen meters away.
It appears that while complainant was then waiting for appellant, Filomena Pielago, a former teacher of
Mia at PNS and who was then on her way to a nearby store, saw her sitting on a bench and asked what
she was doing there at such a late hour. Complainant merely replied that she was waiting for somebody.
Filomena proceeded to the store and, along the way, she saw Inday Zapanta watering the plants
outside the porch of her house. When Filomena Pielago returned, she saw complainant talking with
appellant and she noticed that they were quite intimate because they were holding hands. This made
her suspect that the two could be having a relationship. She, therefore, told appellant that his wife had
finished her aerobics class and was already waiting for him. She also advised Mia to go home.
Prior to this incident, Filomena Pielago already used to see them seated on the same bench. Filomena
further testified that she had tried to talk appellant out of the relationship because his wife had a heart
ailment. She also warned Mia Taha, but to no avail. She had likewise told complainant's grandmother
about her activities. At the trial, she identified the handwriting of complainant appearing on the letters
marked as Exhibits "1" and "2", claiming that she is familiar with the same because Mia was her former
student. On cross-examination, Filomena clarified that when she saw the couple on the night of January
21, 1994, the two were talking naturally, she did not see Mia crying, nor did it appear as if appellant
was pleading with her.
In the afternoon of the following day, January 22, 1994, appellant met Mia's mother on the road near
their house and she invited him to come up and eat "buko," which invitation he accepted. Thirty minutes
thereafter, complainant told him to ask permission from her mother for them to go and solicit funds at
the poblacion, and he did so. Before they left, he noticed that Mia was carrying a plastic bag and when
he asked her about it, she said that it contained her things which she was bringing to her cousin's
house. Appellant and Mia went to the poblacion where they solicited funds until 6:30 P.M. and then had
snacks at the Vic Tan Store.
Thereafter, complainant told appellant that it was already late and there was no more available
transportation, so she suggested that they just stay at Sunset Garden. Convinced that there was
nothing wrong in that because they already had intimate relations, aside from the fact that Mia had
repeatedly told him she would commit suicide should he leave her, appellant was prevailed upon to
stay at the hotel. Parenthetically, it was complainant who arranged their registration and subsequently
paid P400.00 for their bill from the funds they had solicited. That evening, however, appellant told
complainant at around 9:00 P.M. that he was going out to see a certain Bert Dalojo at the latter's
residence. In truth, he borrowed a motorcycle from Fernando Rubio and went home to Pulot. He did
not bring complainant along because she had refused to go home.
The following morning, January 23, 1994, appellant went to the house of complainant's parents and
informed them that Mia spent the night at the Sunset Garden. Mia's parents said that they would just
fetch her there, so he went back to Sunset Garden and waited for them outside the hotel until 5:00 P.M.
When they did not arrive, he decided to go with one Isagani Virey, whom he saw while waiting near the
road, and they had a drinking session with Virey's friends. Thereafter, Virey accompanied him back to
Sunset Garden where they proceeded to Mia's room. Since the room was locked from the inside, Virey
had to knock on the door until it was opened by her.
Once inside, he talked to complainant and asked her what they were doing, but she merely answered
that what she was doing was of her own free will and that at that moment her father was not supposed
to know about it for, otherwise, he would kill her. What complainant did not know, however, was that
appellant had already reported the matter to her parents, although he opted not to tell her because he
did not want to add to her apprehensions. Isagani Virey further testified that when he saw appellant
and complainant on January 23 and 24, 1994, the couple looked very happy.
Appellant denied that they had sexual intercourse during their entire stay at Sunset Garden, that is,
from January 22 to 24, 1994, because he did not have any idea as to what she really wanted to prove
to him. Appellant knew that what they were doing was wrong but he allegedly could not avoid Mia
because of her threat that she would commit suicide if he left her. Thus, according to appellant, on
January 24, 1994 he asked Isagani Virey to accompany him to the house of Romy Vallan, a policeman,
to report the matter.
Additionally, Virey testified that appellant and Mia went to see him at his aunt's house to ask for
assistance in procuring transportation because, according to appellant, the relatives of Mia were
already looking for them and so they intend to go to Puerto Princesa City. Virey accompanied them to
the house of Romy Vallan, whose wife was a co-teacher of appellant's wife, but the latter refused to
help because of the complicated situation appellant was in.
Nevertheless, Vallan verified from the police station whether a complaint had been filed against
appellant and after finding out that there was none, he told appellant to just consult a certain Naem who
is an "imam." Appellant was able to talk to Naem at Vallan's house that same day and bared everything
about him and Mia. Naem suggested that appellant marry complainant in Muslim rites but appellant
refused because he was already married. It was eventually agreed that Naem would just mediate in
behalf of appellant and make arrangements for a settlement with Mia's parents. Later that day, Naem
went to see the parents of complainant at the latter's house.
The following day, January 25, 1994, allegedly because complainant could no longer afford to pay their
hotel bills, the couple were constrained to transfer to the house of appellant's friend, Fernando Rubio,
at Edward's Subdivision where they stayed for two days. They just walked along the national highway
from Sunset Garden to Edward's Subdivision which was only five hundred to seven hundred meters
away. The owner of the house, Fernando Rubio, as well as his brother Benedicto Rubio, testified that
the couple were very happy, they were intimate and sweet to each other, they always ate together, and
it was very obvious that they were having a relationship.
In fact, Fernando Rubio recalled that complainant even called appellant "Papa." While they were there,
she would buy food at the market, help in the cooking, wash clothes, and sometimes watch television.
When Fernando Rubio once asked her why she chose to go with appellant despite the fact the he was
a married man, Mia told him that she really loved appellant. She never told him, and Fernando Rubio
never had the slightest suspicion, that she was supposed to have been kidnapped as it was later
claimed. He also testified that several police officers lived within their neighborhood and if complainant
had really been kidnapped and detained, she could have easily reported that fact to them. Mia was free
to come and go as she pleased, and the room where they stayed was never locked because the lock
had been destroyed.
On cross-examination, Fernando Rubio declared that appellant was merely an acquaintance of his;
that it was Naem who went to the lodging house to arrange for Mia to go home; that complainant's
mother never went to his house; and that it was Chief of Police Eliseo Crespo who fetched appellant
from the lodging house and brought him to the municipal hall.
Shortly before noon of January 26, 1994, Naem again met with appellant at Edward's Subdivision and
informed him that complainant's parents were willing to talk to him at Naem's house the next day. The
following morning, or on January 27, 1994, appellant was not able to talk to complainant's parents
because they merely sent a child to fetch Mia at Edward's Subdivision and to tell her that her mother,
who was at Naem's house, wanted to see her. Appellant permitted complainant to go but he told her
that within one hour he was be going to the police station at the municipal hall so that they could settle
everything there.
After an hour, while appellant was already on his way out of Edward's Subdivision, he was met by Chief
of Police Eliseo Crespo who invited him to the police station. Appellant waited at the police station the
whole afternoon but when complainant, her parents and relatives arrived at around 5:00 P.M., he was
not given the chance to talk to any one of them. That afternoon of January 27, 1994, appellant was no
longer allowed to leave and he was detained at the police station after Mia and her parents lodged a
complaint for rape and kidnapping against him.
During his detention, Mia's cousin, Lorna Casantosan, delivered to appellant on different occasions two
letters from complainant dated February 27, 1994 and March 1, 1994, respectively. As Mia's teacher,
appellant is familiar with and was, therefore, able to identify the handwriting in said letters as that of
Mia Taha. After a time, he came to know, through his mother, that an affidavit of desistance was
reportedly executed by complainants. However, he claims that he never knew and it was never
mentioned to him, not until the day he testified in court, that his mother paid P30,000.00 to Mia's father
because, although he did not dissuade them, neither did he request his mother to talk to complainants
in order to settle the case.
Under cross-examination, appellant denied that he poked a knife at and raped Mia Taha on January
21, 1994. However, he admitted that he had sex with Mia at the Sunset Garden but that was already
on January 24, 1994. While they were at Edward's Subdivision, they never had sexual relations.
Appellant was told, when complainant visited him in jail, that her father would kill her if she refused to
testify against him, although by the time she testified in court, her father had already died.
Appellant further testified that complainant has had several illicit relations in the boarding house of her
cousin, Merlylyn Casantosan, which was a well-known fact in Pulot. However, he decided to have a
relationship with her because he wanted to change her and that was what they had agreed upon.
Appellant denied that, during the time when they were staying together, Mia had allegedly asked
permission to leave several times but that he refused. On the contrary, he claimed that on January 27,
1994 when she told him that her parents wanted to see her, he readily gave her permission to go.
He also identified the clothes that Mia brought with her when they left her parents' house on January
22, 1994, but which she left behind at the Rubios' lodging house after she failed to return on January
27, 1994. The bag of clothes was brought to him at the provincial jail by Benedicto Rubio.
Appellant likewise declared that he had been detained at the provincial jail since January 27, 1994 but
the warrant for his arrest was issued only on January 28, 1994; and that he did not submit a counter-
affidavit because according to his former counsel, Atty. Paredes, it was no longer necessary since the
complainants had already executed an affidavit of desistance. He admits having signed a "Waiver of
Right to Preliminary Investigation" in connection with these cases.
On rebuttal, Lorna Casantosan, the cousin of Mia Taha, denied that she delivered any letter to appellant
when the latter was still detained at the provincial jail. She admitted, on cross-examination, that she
was requested by Mia Taha to testify for her, although she clarified that she does not have any quarrel
or misunderstanding with appellant.
Mia Taha was again presented on rebuttal and she denied the testimony of Erna Baradero regarding
the incident at the Orchids Room because, according to her, the truth was that she was at the boarding
house of Toto Zapanta on that date and time. She likewise negated the claim that Erna Baradero
confronted her on January 21, 1994 about her alleged relationship with appellant contending that she
did not see her former teacher on that day. Similarly, she disclaimed having seen and talked to
Filemona Pielago on the night of January 21, 1994. She vehemently disavowed that she and appellant
were lovers, much less with intimate relations, since there never was a time that they became
sweethearts.
She sought to rebut, likewise through bare denials, the following testimonies of the defense witnesses:
that she told appellant "iwanan mo ang iyong asawa at tatakas tayo;" that she answered "wala kang
pakialam" when Erna Baradero confronted her about her relationship with appellant; that she was the
one who registered them at Sunset Garden and paid for their bill; that appellant left her at Sunset
Garden to go to Ipil on January 22, 1994; that Isagani Virey came to their room and stayed there for
five minutes, because the only other person who went there was the room boy who served their food;
that they went to the house of Virey's aunt requesting help for transportation; and that she was free to
roam around or to go out of the lodging house at Edward's Subdivision.
Mia Taha also rejected as false the testimony of appellant that she went to see him at Narra, Palawan
to have sex with him and claims that the last time she went to Narra was when she was still in Grade
VI; that she ever told him "I love you, sabik no sabik ako sa iyo" when she allegedly went to Narra; that
she wrote to him, since the letters marked as Exhibits "1" and "2" are not hers; that she threatened to
commit suicide if appellant would leave her since she never brought a blade with her; and that at Sunset
Garden and at Edward's Subdivison, she was not being guarded by appellant.
However, on cross-examination, complainant identified her signature on her test paper marked as
Exhibit "4" and admitted that the signature thereon is exactly the same as that appearing on Exhibits
"1" and "2". Then, contradicting her previous disclaimers, she also admitted that the handwriting on
Exhibits "1" and "2" all belong to her.
On sur-rebuttal, Armando Pasion, a provincial guard of the Provincial Jail, Palawan who volunteered to
testify in these cases, identified Lorna Casantosan as the person who visited appellant in jail on
February 27, 1994 at around 4:00 P.M. Since he was on duty at that time, he asked her what she
wanted and she said she would just visit appellant. Pasion then called appellant and told him he had a
visitor. Lorna Casantosan and appellant talked at the visiting area which is around ten meters away
from his post, and then he saw her hand over to appellant a letter which the latter immediately read.
This witness declared that appellant never requested him to testify.
Another sur-rebuttal witness, Desmond Selga, a jeepney driver, testified that in the afternoon of January
22, 1994, he was plying his regular route in going to Brooke's Point and, when he passed by Ipilan, he
picked up appellant and Mia Taha. At that time, there were already several passengers inside his
jeepney. The two got off at the poblacion market. He denied that he brought them to the Sunset Garden.
On May 20, 1994, the court a quo rendered judgment5 finding appellant guilty beyond reasonable doubt
of the crimes of rape and kidnapping with serious illegal detention, and sentencing him to the maximum
penalty of death in both cases.6 By reason of the nature of the penalty imposed, these cases were
elevated to this Court on automatic review.
The records show that, on the basis of the complaints for rape7 and kidnapping with serious illegal
detention8 filed by Mia Taha and Helen Taha, respectively, the Municipal Trial Court of Brooke's Point
issued a resolution9 on February 4, 1994 finding the existence of a prima facie case against appellant.
On February 10, 1994, the spouses Adjeril Taha and Helen Taha executed an affidavit of desistance
withdrawing the charge of kidnapping with serious illegal detention.10 However, pursuant to a joint
resolution11 issued on March 11, 1994 by Prosecutor II Reynaldo R. Guayco of the Office of the
Provincial Prosecutor, two separate informations for rape and for kidnapping with serious illegal
detention were nevertheless filed against appellant Danny Godoy with no bail recommended in both
charges.
Appellant is now before us seeking the reversal of the judgment of the court below, on the following
assignment of errors:
I. The trial court erred in convicting the accused-appellant (of) the crime of rape despite the fact that
the prosecution failed to prove his guilt beyond reasonable doubt.
II. The trial court erred by failing to adhere to the doctrine/principle in reviewing the evidence adduced
in a prosecution for the crime of rape as cited in its decision reiterating the case of People vs. Calixto
(193 SCRA 303).
III. The trial court erred in concluding that the accused-appellant had consummated the crime of rape
against private complainant.
IV. The trial court erred by its failure to give any credence to Exhibits "1" and "2" as evidence of the
defense.
V. The trial court erred in convicting the accused-appellant of the crime of kidnapping with serious illegal
detention as the prosecution failed to prove his guilt beyond reasonable doubt.
VI. The trial court erred in giving full faith and credence to the testimonies of prosecution witnesses and
completely ignoring the testimonies of the defense witnesses.
VII. The trial court erred in concluding that there was implied admission of guilt on the part of the
accused-appellant in view of the offer to compromise.
VIII. The trial court erred in ordering that the complainant be indemnified in the sum of one hundred
thousand pesos (P100,000.00) for each of the alleged crimes committed.
IX. The trial court gravely erred by imposing the death penalty for each of the crimes charged on the
accused-appellant despite the fact that the crimes were allegedly committed prior to the effectivity of
Republic Act No. 7659.12
A. The Rape Case
A rape charge is a serious matter with pernicious consequences. It exposes both the accused and the
accuser to humiliation, fear and anxieties, not to mention the stigma of shame that both have to bear
for the rest of their
lives.13 By the very nature of the crime of rape, conviction or acquittal depends almost entirely on the
credibility of the complainant's testimony because of the fact that usually only the participants can testify
as to its occurrence. 14 This notwithstanding, the basic rule remains that in all criminal prosecutions
without regard to the nature of the defense which the accused may raise, the burden of proof remains
at all times upon the prosecution to establish his guilt beyond a reasonable doubt. If the accused raises
a sufficient doubt as to any material element, and the prosecution is then unable to overcome this
evidence, the prosecution has failed to carry its burden of proof of the guilt of the accused beyond a
reasonable doubt and the accused must be acquitted.15
The rationale for the rule is that, confronted by the full panoply of State authority, the accused is
accorded the presumption of innocence to lighten and even reverse the heavy odds against him. Mere
accusation is not enough to convict him, and neither is the weakness of his defense. The evidence for
the prosecution must be strong per se, strong enough to establish the guilt of the accused beyond
reasonable doubt.16 In other words, the accused may be convicted on the basis of the lone
uncorroborated testimony of the offended woman, provided such testimony is clear, positive, convincing
and otherwise consistent with human nature and the normal course of things.
There are three well-known principles that guide an appellate court in reviewing the evidence presented
in a prosecution for the crime of rape. These are: (1) while rape is a most detestable crime, and ought
to be severely and impartially punished, it must be borne in mind that it is an accusation easy to be
made, hard to be proved, but harder to be defended by the party accused, though innocent;17 (2) that
in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the
testimony of the complainant must be scrutinized with extreme caution;18 and (3) that the evidence for
the prosecution must stand or fall on its own merits and cannot be allowed to draw strength from the
weakness of the evidence for the defense.19
In the case at bar, several circumstances exist which amply demonstrate and ineluctably convince this
Court that there was no rape committed on the alleged date and place, and that the charge of rape was
the contrivance of an afterthought, rather than a truthful plaint for redress of an actual wrong.
I. Two principal facts indispensably to be proven beyond reasonable doubt for conviction of the crime
of rape under paragraph (1), Article 335 of the Revised Penal Code are, first, that the accused had
carnal knowledge of the complainant; and, second, that the same was accomplished through force or
intimidation.
1. The prosecution has palpably failed to prove beyond peradventure of doubt that appellant had sexual
congress with complainant against her will. Complainant avers that on the night of January 21, 1994,
she was sexually assaulted by appellant in the boarding house of her cousin, Merlelyn Casantosan.
Appellant, on the other hand, denied such a serious imputation and contends that on said date and
time, he merely talked with complainant outside that house. We find appellant's version more credible
and sustained by the evidence presented and of record.
According to complainant, when she entered the kitchen of the boarding house, appellant was already
inside apparently waiting for her. If so, it is quite perplexing how appellant could have known that she
was going there on that particular day and at that time, considering that she does not even live there,
unless of course it was appellant's intention to satisfy his lustful desires on anybody who happened to
come along. But then this would be stretching the imagination too far, aside from the fact that such a
generic intent with an indeterminate victim was never established nor even intimated by the
prosecution.
Moreover, any accord of credit to the complainant's story is precluded by the implausibility that plagues
it as regards the setting of the supposed sexual assault.20 It will be noted that the place where the
alleged crime was committed is not an ordinary residence but a boarding house where several persons
live and where people are expected to come and go. The prosecution did not even bother to elucidate
on whether it was the semestral break or that the boarding house had remained closed for some time,
in order that it could be safely assumed that nobody was expected to arrive at any given time.
Appellant, on the other hand, testified that on that fateful day, he went to the boarding house upon the
invitation of complainant because the latter requested him to help her with her monologue for the Miss
PNS contest. However, they were not able to go inside the house because it was locked and there was
no light, so they just sat on a bench outside the house and talked. This testimony of appellant was
substantially corroborated by defense witness Filomena Pielago. She affirmed that in the evening of
January 21, 1994, she saw both appellant and complainant seated on a bench outside the boarding
house, and that she even advised them to go home because it was already late and appellant's wife,
who was the head teacher of witness Pielago, was waiting for him at the school building. On rebuttal,
complainant could only deny that she saw Pielago that night. Doctrinally, where the inculpatory facts
and circumstances are capable of two or more explanations one of which is consistent with the
innocence of the accused and the other consistent with his guilt, then the evidence does not fulfill the
test of moral certainty and is not sufficient to support a conviction.21
It was further alleged by complainant that after her alleged ravishment, she put on her panty and then
appellant openly accompanied her all the way to the gate of the house where they eventually parted
ways. This is inconceivable. It is not the natural tendency of a man to remain for long by the side of the
woman he had raped,22 and in public in a highly populated area at that. Given the stealth that
accompanies it and the anxiety to end further exposure at the scene, the logical post-incident impulse
of the felon is to distance himself from his victim as far and as soon as practicable, to avoid discovery
and apprehension. It is to be expected that one who is guilty of a crime would want to dissociate himself
from the person of his victim, the scene of the crime, and from all other things and circumstances related
to the offense which could possibly implicate him or give rise to even the slightest suspicion as to his
guilt. Verily, the guilty flee where no man pursueth.
It is of common knowledge that facts which prove or tend to prove that the accused was at the scene
of the crime are admissible as relevant, on the theory that such presence can be appreciated as a
circumstance tending to identify the appellant.23 Consequently, it is not in accord with human
experience for appellant to have let himself be seen with the complainant immediately after he had
allegedly raped her.24 It thus behooves this Court to reject the notion that appellant would be so
foolhardy as to accompany complainant up to the gate of the house, considering its strategic location
vis-a-vis complainant's boarding house which is just across the street,25 and the PNS schoolbuilding
which is only around thirty meters away.26
Complainant mentioned in her narration that right after the incident she went directly to her boarding
house where she saw her landlady. Yet, the landlady was never presented as a witness to corroborate
the story of complainant, despite the fact that the former was the very first person she came in contact
with from the time appellant allegedly left her at the gate of the Casantosan boarding house after her
alleged traumatic ordeal. Even though they supposedly did not talk, the landlady could at least have
testified on complainant's physical appearance and to attest to the theorized fact that indeed she saw
complainant on said date and hour, possibly with dishevelled hair, bloody skirt and all.
We are, therefore, justifiedly inclined to believe appellant's version that it was Mia Taha who invited him
to the boarding house to help her with the monologue she was preparing for the school contest. This is
even consonant with her testimony that appellant fetched her the following day in order to solicit funds
for her candidacy in that same school affair.
In contrast, complainant's professed reason for going to the boarding house is vague and tenuous. At
first, she asserted that she was at the boarding house talking with a friend and then, later, she said it
was her cousin. Subsequently, she again wavered and said that she was not able to talk to her cousin.
Furthermore, she initially stated that on January 21, 1994 at around 7:00 P.M., she was at the boarding
house conversing with her cousin. Then in the course of her narration, she gave another version and
said that when she reached the boarding house it was dark and there was nobody inside.
The apparent ease with which she changed or adjusted her answers in order to cover up or realign the
same with her prior inconsistent statements is readily apparent from her testimony even on this single
episode, thus:
Q Sometime on January 21, 1994, at about 7:00 o'clock in the evening, do you remember where you
were?
A Yes, sir.
Q Where were you?
A I was in the boarding house of Merlylyn Casantosan, Sir.
xxx xxx xxx
Q Why were you there?
A I was conversing with my friend there, Sir.
COURT:
Q Conversing with whom?
A With my cousin, Your Honor.
Q Your cousin's name?
A Merlylyn Casantosan, Your Honor.
xxx xxx xxx
PROSECUTOR GUAYCO:
Q You said that this Dane or Danny Godoy raped you, will you please relate to this Honorable Court
how that rape happened?
A On Friday and it was 7:00 o'clock in the evening.
COURT:
Q Of what date?
A January 21, 1994, Your Honor.
xxx xxx xxx
PROSECUTOR GUAYCO:
Q Then what happened?
A I went to the boarding house of my cousin Merlylyn Casantosan. I passed (through) the kitchen and
then when I opened the door somebody grabbed me suddenly.
xxx xxx xxx
Q During that time were there other people present in that boarding house where you said Danny
Godoy raped you?
A None, Sir.
COURT:
Q So, the house was empty?
A Yes, Your Honor.
Q I thought your cousin was there and you were conversing?
A When I went there she was not there, Your Honor.27 (Corrections and emphasis supplied.)
2. Complainant testified that appellant raped her through the use of force and intimidation, specifically
by holding a knife to her neck. However, the element of force was not sufficiently established. The
physical facts adverted to by the lower court as corroborative of the prosecution's theory on the use of
force are undoubtedly the medico-legal findings of Dr. Rogelio Divinagracia. Upon closer scrutiny,
however, we find that said findings neither support nor confirm the charge that rape was so committed
through forcible means by appellant against complainant on January 21, 1994.
The reported hymenal laceration which, according to Dr. Divinagracia, was a week old and already
healed, and the conclusion therefrom that complainant had sexual intercourse with a man on the date
which she alleged, do not establish the supposed rape since the same findings and conclusion are
likewise consistent with appellant's admission that coitus took place with the consent of complainant at
Sunset Garden on January 24, 1994.28 Further, rather than substantiating the prosecution's aforesaid
theory and the supposed date of commission of rape, the finding that there were no evident signs of
extra-genital injuries tends, instead, to lend more credence to appellant's claim of voluntary coition on
a later date and the absence of a struggle or the lack of employment of physical force.29 In rape of the
nature alleged in this case, we repeat, the testimony of the complainant must be corroborated by
physical evidence showing use of force.30
Thus, on the basis of the laceration inflicted, which is superficial at 6 o'clock position, the aforesaid
medico-legal expert opined that it could not be categorically stated that there was force involved. On
further questioning, he gave a straightforward answer that force was not applied.31 He also added that
when he examined the patient bodily, he did not see any sign of bruises.32 The absence of any sign of
physical violence on the complainant's body is an indication of complainant's consent to the act.33 While
the absence in the medical certificate of external signs of physical injuries on the victim does not
necessarily negate the commission of rape,34 the instant case is clearly an exception to this rule since
appellant has successfully cast doubt on the veracity of that charge against him.
Even granting ex gratia argumenti that the medical report and the laceration corroborated complainant's
assertion that there was sexual intercourse, of course the same cannot be said as to the alleged use
of force. It has been held that such corroborative evidence is not considered sufficient, since proof of
facts constituting one principal element of the crime is not corroborative proof of facts necessary to
constitute another equally important element of the crime.35
Complainant testified that she struggled a little but it was not really strong because she was afraid of
appellant. Again assuming that a sexual assault did take place as she claims, we nevertheless strongly
believe that her supposed fear is more imaginary than real. It is evident that complainant did not use
the manifest resistance expected of a woman defending her honor and chastity.36 She failed to make
any outcry when appellant allegedly grabbed her and dragged her inside the house. There is likewise
no evidence on record that she put up a struggle when appellant forced her to lie on the floor, removed
her panty, opened the zipper of his trousers, and inserted his organ inside her genitals. Neither did she
demonstrate that appellant, in committing the heinous act, subjected her to any force of whatever nature
or form.
Complainant's explanation for her failure to shout or struggle is too conveniently general and ruefully
unconvincing to make this Court believe that she tenaciously resisted the alleged sexual attack on her
by appellant. And, if ever she did put up any struggle or objected at all to the involuntary intercourse,
such was not enough to show the kind of resistance expected of a woman defending her virtue and
honor.37 Her failure to do anything while allegedly being raped renders doubtful her charge of rape,38
especially when we consider the actual mise-en-scene in the context of her asseverations.
There is a rule that the rape victim's panty and blood-stained dress are not essential, and need not be
presented, as they are not indispensable evidence to prove rape.39 We incline to the view, however,
that this general rule holds true only if there exist other corroborative evidence sufficiently and
convincingly proving the rape charge beyond reasonable doubt. The rule should go the other way
where, as in the present case, the testimony of complainant is inherently weak and no other physical
evidence has been presented to bolster the charge of sexual abuse except for the medical report which,
as earlier discussed, even negated the existence of one of the essential elements of the crime. We
cannot, therefore, escape the irresistible conclusion that the deliberate non-presentation of
complainant's blood-stained skirt, if it did exist, should vigorously militate against the prosecution's
cause.
II. The conduct of the outraged woman immediately following the alleged assault is of the utmost
importance as tending to establish the truth or falsity of the charge. It may well be doubted whether a
conviction for the offense of rape should even be sustained from the uncorroborated testimony of the
woman unless the court is satisfied beyond doubt that her conduct at the time when the alleged rape
was committed and immediately thereafter was such as might be reasonably expected from her under
all the circumstances of the
case. 40
Complainant said that on the day following the supposed rape, appellant went to her parents' house
and asked permission from them to allow her to go with him to solicit funds for her candidacy. Nowhere
throughout her entire testimony did she aver or imply that appellant was armed and that by reason
thereof she was forced to leave with him. In brief, she was neither threatened nor intimidated by
appellant. Her pretense that she was afraid of the supposed threat previously made by appellant does
not inspire belief since appellant was alone and unarmed on that occasion and there was no showing
of any opportunity for him to make good his threat, even assuming that he had really voiced any. On
the contrary, complainant even admitted that appellant respectfully asked permission from her parents
for her to accompany him.
Complainant's enigmatic behavior after her alleged ravishment can only be described as paradoxical:
it was so strangely normal as to be abnormal.41 It seems odd, if not incredible, that upon seeing the
person who had allegedly raped her only the day before, she did not accuse, revile or denounce him,
or show rage, revulsion, and disgust.42 Instead, she meekly went with appellant despite the presence
of her parents and the proximity of neighbors which, if only for such facts, would naturally have deterred
appellant from pursuing any evil design. From her deportment, it does not appear that the alleged threat
made by appellant had instilled any fear in the mind of complainant. Such a nonchalant, unconcerned
attitude is totally at odds with the demeanor that would naturally be expected of a person who had just
suffered the ultimate invasion of her womanhood.43
III. Rape is a very emotional word, and the natural human reactions to it are categorical: admiration and
sympathy for the courageous female publicly seeking retribution for her outrageous violation, and
condemnation of the rapist. However, being interpreters of the law and dispensers of justice, judges
must look at a rape charge without those proclivities, and deal with it with extreme caution and
circumspection. Judges must free themselves of the natural tendency to be overprotective of every
woman decrying her having been sexually abused, and demanding punishment for the abuser. While
they ought to be cognizant of the anguish and humiliation the rape victim goes through as she demands
justice, judges should equally bear in mind that their responsibility is to render justice based on the
law.44
The rule, therefore, that this Court generally desists from disturbing the conclusions of the trial court on
the credibility of witnesses45 will not apply where the evidence of record fails to support or substantiate
the lower court's findings of fact and conclusions; or where the lower court overlooked certain facts of
substance and value that, if considered, would affect the outcome of the case; or where the disputed
decision is based on a misapprehension of facts.46
The trial court here unfortunately relied solely on the lone testimony of complainant regarding the
January 21, 1994 incident. Indeed, it is easy to allege that one was raped by a man. All that the victim
had to testify to was that appellant poked a knife at her, threatened to kill her if she shouted and under
these threats, undressed her and had sexual intercourse with her. The question then that confronts the
trial court is whether or not complainant's testimony is credible.47 The technique in deciphering
testimony is not to solely concentrate on isolated parts of that testimony. The correct meaning of the
testimony can often be ascertained only upon a perusal of the entire testimony. Everything stated by
the witness has to be considered in relation to what else has been stated.48
In the case at bar, the challenged decision definitely leaves much to be desired. The court below made
no serious effort to dispassionately or impartially consider the totality of the evidence for the prosecution
in spite of the teaching in various rulings that in rape cases, the testimony of the offended party must
not be accepted with precipitate credulity.49 In finding that the crime of rape was committed, the lower
court took into account only that portion of the testimony of complainant regarding the January 21, 1994
incident and conveniently deleted the rest. Taken singly, there would be reason to believe that she was
indeed raped. But if we are to consider the other portions of her testimony concerning the events which
transpired thereafter, which unfortunately the court a quo wittingly or unwittingly failed or declined to
appreciate, the actual truth could have been readily exposed.
There are easily perceived or discernible defects in complainant's testimony which inveigh against its
being accorded the full credit it was given by the trial court. Considered independently of any other, the
defects might not suffice to overturn the trial court's judgment of conviction; but assessed and weighed
conjointly, as logic and fairness dictate, they exert a powerful compulsion towards reversal of said
judgment.50 Thus:
1. Complainant said that she was continuously raped by herein appellant at the Sunset Garden and
around three times at Edward's Subdivision. In her sworn statement she made the same allegations. If
this were true, it is inconceivable how the investigating prosecutor could have overlooked these facts
with their obvious legal implications and, instead, filed an information charging appellant with only one
count of rape. The incredibility of complainant's representations is further magnified by the fact that
even the trial court did not believe it, as may be inferred from its failure to consider this aspect of her
testimony, unless we were to uncharitably assume that it was similarly befuddled.
2. She claims that appellant always carried a knife, but it was never explained how she was threatened
with the same in such a manner that she was allegedly always cowed into giving in to his innumerable
sexual demands. We are not unaware that in rape cases, this claim that complainant now advances
appears to be a common testimonial expedient and face-saving subterfuge.
3. According to her, they stayed at Sunset Garden for three days and three nights and that she never
noticed if appellant slept because she never saw him close his eyes. Yet, when asked if she slept side
by side with appellant, complainant admitted that everytime she woke up, appellant was invariably in
bed beside her.51
4. She alleged that she could never go out of the room because it was always locked and it could not
be opened from the inside. But, this was refuted by complainant's own testimony, as follows:
Q And yet the door could be opened by you from the inside?
A No, Sir, it was locked.
Q Can you describe the lock of that room?
A It's like that of the door where there is a doorknob.
ATTY. EBOL:
Let it be recorded that the lock is a doorknob and may I ask that the door be locked and opened from
the inside.
COURT:
Alright (sic) you go down the witness stand and find out for yourself if you can open that door from the
inside.
CLERK OF COURT:
Witness holding the doorknob.
COURT:
The key is made to open if you are outside, but as you're were (sic) inside you can open it?
A Yes, sir.
Q Is there no other lock aside from that doorknob that you held?
A There was, Your Honor.
Q What is that?
A The one that slides, Your Honor.
Q And that is used when you are already inside?
A Yes, Your Honor.52 (Emphases ours.)
5. During their entire stay at the Sunset Garden or even at Edward's Subdivision, beyond supposedly
offering token or futile resistance to the latter's sexual advances, she made no outcry, no attempt to
flee or attract attention to her plight.53 In her own declaration, complainant mentioned that when they
checked in at Sunset Garden, she saw the cashier at the information counter where appellant
registered. She did not do anything, despite the fact that appellant at that time was admittedly not
armed. She likewise stated that a room boy usually went to their room and brought them food. If indeed
she was bent on fleeing from appellant, she could have grabbed every possible opportunity to escape.
Inexplicably, she did not. What likewise appears puzzling is the prosecution's failure to present these
two people she mentioned and whose testimonies could have bolstered or corroborated complainant's
story.
6. When appellant fetched complainant in the afternoon of January 22, 1994, they left the house
together and walked in going to the highway. In her own testimony, complainant stated that appellant
went ahead of her. It is highly improbable, if appellant really had evil motives, that he would be that
careless. It is likewise beyond comprehension that appellant was capable of instilling such fear in
complainant that she could not dare take advantage of the situation, in spite of the laxity of appellant,
and run as far away from him as possible despite all the chances therefor.
7. Helen Taha, the mother of Mia, testified that as a result of the filing of the rape case, complainant
was dropped from school and was not allowed to graduate. This is absurd. Rather than support and
commiserate with the ill-fated victim of rape, it would appear that the school authorities were heartless
people who turned their backs on her and considered her an outcast. That would be adding insult to
injury. But what is more abstruse yet significant is that Mia and her parents were never heard to
complain about this apparent injustice. Such complacency cannot but make one think and conclude
that there must necessarily have been a valid justification for the drastic action taken by the school and
the docile submission thereto by the Taha family.
On the other hand, in evaluating appellant's testimony, the trial court's decision was replete with
sweeping statements and generalizations. It chose to focus on certain portions of appellant's testimony,
declared them to be preposterous and abnormal, and then hastened to conclude that appellant is
indeed guilty. The court in effect rendered a judgment of conviction based, not on the strength of the
prosecution's evidence, but on the weakness of that of the defense, which is totally repugnant to the
elementary and time-honored rule that conviction should be made on the basis of strong, clear and
compelling evidence of the prosecution.54
IV. The main defense proffered by appellant is that he and complainant were sweethearts. While the
"sweetheart theory" does not often gain favor with this Court, such is not always the case if the hard
fact is that the accused and the supposed victim are, in truth, intimately related except that, as is usual
in most cases, either the relationship is illicit or the victim's parents are against it. It is not improbable
that in some instances, when the relationship is uncovered, the alleged victim or her parents for that
matter would rather take the risk of instituting a criminal action in the hope that the court would take the
cudgels for them than for the woman to admit to her own acts of indiscretion. And this, as the records
reveal, is precisely what happened to appellant.
Appellant's claim that he and complainant were lovers is fortified by the highly credible testimonies of
several witnesses for the defense, viz.:
1. Filomena Pielago testified that on the night of January 21, 1994, she saw appellant and complainant
sitting on a bench in front of the house where the sexual attack allegedly took place, and the couple
were talking intimately. She had warned Mia about the latter's illicit affair with appellant.
2. Fernando Rubio, an acquaintance of appellant and owner of the house at Edward's Subdivision,
testified that he asked Mia why she decided to have an affair with appellant who is a married man. Mia
answered that she really loves him.55 He heard her call appellant "Papa".56 The couple looked happy
and were sweet to each other.57
3. Benedicto Rubio, the younger brother of Fernando, testified on redirect examination that he asked
Mia if she knew what she getting into and she answered, "Yes;" then he asked her if she really loved
Sir Godoy, and she again answered in the affirmative. When he was trying to give counsel to appellant,
complainant announced that if appellant left her, she would commit suicide.58 He could see that the
couple were happy together.59
4. Isagani Virey, who knew appellant because the Municipal Engineering Office where he worked was
located within the premises of PNS, attested that he was able to talk to the couple and that when he
was advising appellant that what he was doing is wrong because he is married and Mia is his student,
complainant reacted by saying that no matter what happened she would not leave Godoy, and that if
she went home her father would kill her.60 He also observed that they were happy.61
5. Erna Baradero, a co-teacher of appellant, saw the couple the day before the alleged rape incident,
inside one of the classrooms and they were holding hands, and she heard Mia tell appellant, "Mahal
na mahal kita Sir, iwanan mo ang iyong asawa at tatakas tayo."62 She tried to dissuade complainant
from continuing with her relationship with appellant.63
The positive allegations of appellant that he was having an intimate relationship with complainant, which
were substantially corroborated by several witnesses, were never successfully confuted. The rebuttal
testimony of complainant merely consisted of bare, unexplained denials of the positive, definite,
consistent and detailed assertions of appellant.64 Mere denials are self-serving negative evidence. They
cannot obtain evidentiary weight greater than the declarations of credible disinterested witnesses.65
Besides, appellant recounted certain facts that only he could have supplied. They were replete with
details which could have been known only to him, thereby lending credence and reliability thereto.66
His assertions are more logical, probable and bear the earmarks of truth. This is not to say that the
testimony of appellant should be accorded full credence. His self-interest must have colored his
account, even on the assumption that he could be trusted to stick to the literal truth. Nonetheless, there
is much in his version that does not strain the limits of credulity. More to the point, there is enough to
raise doubts that do appear to have some basis in reality.67
Thus, the trial court's hasty pontification that appellant's testimony is improbable, ridiculous,
nonsensical and incredible is highly uncalled for. The rule of falsus in uno, falsus in omnibus is not
mandatory. It is not a positive rule of law and is not an inflexible one.68 It does not apply where there is
sufficient corroboration on many grounds of the testimony and the supposed inconsistencies arise
merely from a desire of the witness to exculpate himself although not completely.69
Complainant's denial that she and appellant were lovers is belied by the evidence presented by the
defense, the most telling of which are her two handwritten letters, Exhibits "1" and "2", which she sent
to the latter while he was detained at the provincial jail. For analysis and emphasis, said letters are
herein quoted in full:
27 Feb. 94
Dane,
Kumusta kana? Kong ako hito hindi na makatiis sa sakit.
Sir, sumulat ako sa inyo dahil gusto kong malaman mo ang situation ko. Sir, kong mahal mo ako
gagawa kang paraan na mailayo ako dito sa bahay. nalaman ng nanay at tatay ko na delayed ang
mens ko ng one week. pinapainom nila ako ng pampalaglag pero ayaw ko. pagnalaman nila na hindi
ko ininom ang gamot sinasaktan nila ako.
Sir, kong maari ay huwag ng maabutan ng Martes. dahil naabutan nila akong maglayas sana ako. kaya
ngayon hindi ako makalabas ng bahay kong wala akong kasama, kong gaano sila kahigpit noon doble
pa ngayon. ang mga gamit ko ngayon ay wala sa lalagyan ko. tinago nila hindi ko makita, ang narito
lang ay ang bihisan kong luma. Sir kong manghiram ka kaya ng motor na gagamitin sa pagkuha sa
akin. Sa lunes ng gabi manonood kami Ng Veta eksakto alas 9:00 ay dapat dito ka sa lugar na may
Veta. tanungin mo lang kay Lorna kong saan ang Veta nila Navoor Lozot. Mag busina ka lang ng tatlo
bilang senyas na lalabas na ako at huwag kang tatapat ng bahay dahil nandoon ang kuya ko. kong ano
ang disisyon mo maari bang magsulat ka at ipahatid kay Lorna.
alang-alang sa bata. Baka makainon ako ng gamot dahil baka pagkain ko hahaluan nila.
Please sir . . .
(Sgd.) Mia Taha70
3/1/94
Dane,
I'm sorry kong problem ang ipinadala o sinulat sa iyo sa halip sa kasiyahan. oo nag usap na tayo
nagawa ko lang naman ang sumulat sa iyo dahil naiinis na ako sa pagmumukha ng mga magulang
kong suwapang. Ang paglayas ko sana ay dahil sa narinig ko. Sir narinig ko na magreklamo si nanay
kay Arquero yong superentende sa Palawan high tapos ang sabi ay magreklamo itong si Arquero sa
DECS para matanggal ka sa pagtuturo yan ang dahilan kong bakit naisipan kong lumayas ng wala sa
oras at wala akong tensyon na masama laban so iyo. hindi ko sinabi sa kanila na delayed ako ay sinabi
sa iyo ni Eden na sa harap niya mismo binigyan ako ng gamot samantalang noong Sabado ng gabi
lang nalaman dahil gusto kong masuka. Oo aaminin ko nagkasala ako sa iyo, pinabilanggo kita dahil
nagpanig ako sa mga magulang ko nadala nila ako sa sulsul nila. hindi ko naipaglaban ang dapat kong
ipaglaban ngunit kong iniisip mong minahal lang kita dahil sa may kailangan lang ako sa iyo
nagkakamali ka. alam ng Diyos na hindi ganon ang hangarin ko sa iyo. higit pa sa binilanggo ang
kalagayan ko kong alam mo. kinukunsinsiya, nagtitiis na saktan at pagsasakripisyo ng damdamin ko
na gusto kang makita at yakapin ka pero ano ang magagawa ko kong ang paglabas ko ng bahay ay
hindi ako makalabas ng mag isa may guardiya pa. tanungin mo si Lorna kong ano ginagawa nilang
pagbantay sa akin para akong puganti. hindi ito ayon sa kagustuhan ng mga magulang ko sarili kong
plano ito. Magtitiis pa ba akong hindi makakain maghapon tubig lang ang laman ng tiyan, kong may
masama akong hangarin sa iyo.
Oo, magtiis ako para maipakita kong mahal rin kita. March 2 darating ako sa bahay na sinasabi mo.
hindi ko matiyak kong anong oras dahil kukuha pa ako ng tiyempo na wala rito ang tatay ko. Alam mo
bang pati ang kapatid kong si Rowena ay inuutusan akong lumayas dahil naawa no siya sa situation
ko. siya lang ang kakampi ko rito sa bahay malaki ang pag-asa kong makalabas ako ng bahay sa tulong
niya.
Love you
(Sgd.) Mia Taha71
There is absolutely nothing left to the imagination. The letters eloquently speak for themselves. It was
complainant's handwriting which spilled the beans, so to speak. Aside from appellant, two other defense
witnesses identified the handwriting on the letters as belonging to Mia Taha. They are Filomena Pielago
and Erna Baradero who were admittedly the former teachers of complainant and highly familiar with
her handwriting. The greatest blunder committed by the trial court was in ignoring the testimonies of
these qualified witnesses and refusing to give any probative value to these two vital pieces of evidence,
on the dubious and lame pretext that no handwriting expert was presented to analyze and evaluate the
same.
Well-entrenched by now is the rule that resort to questioned document examiners, more familiarly called
handwriting experts, is not mandatory. Handwriting experts, while probably useful, are not
indispensable in examining or comparing handwriting.72 This is so since under Section 22, Rule 132 of
the Rules of Court, the handwriting of a person may be proved by any witness who believes it to be the
handwriting of such person, because he has seen the person write, or has seen writing purporting to
be his upon which the witness has acted or been charged, and has thus acquired knowledge of the
handwriting of such person. The said section further provides that evidence respecting the handwriting
may also be given by a comparison, made by the witness or the court, with writings admitted or treated
as genuine by the party against whom the evidence is offered or proved to be genuine to the satisfaction
of the judge.73
The defense witnesses were able to identify complainant's handwriting on the basis of the examination
papers submitted to them by her in their respective subjects. This Court has likewise carefully examined
and compared the handwriting on the letters with the standard writing appearing on the test papers as
specimens for comparison and, contrary to the observations and conclusions of the lower court, we are
convinced beyond doubt that they were written by one and the same person. More importantly,
complainant herself categorically admitted that the handwriting on the questioned letters belongs to
her.
It is, therefore, extremely disconcerting, to say the least, why the trial court again chose to turn a deaf
ear to this conclusive portion of complainant's testimony:
ATTY. EBOL:
Q Did I get you right on rebuttal that Mrs. Erna Baradero and Filomena Pielago were your teachers?
A Yes, sir.
Q And they have been your teachers for several months before this incident of January 21, 1994, am I
not correct?
A That is true, sir.
Q And you have (sic) during these past months that they have been your teachers you took
examinations in their classes in their particular subject(s)?
A Yes, sir.
Q And some of those test papers are in the possession of your teachers, am I correct?
A Yes, sir.
Q I will show you Exhibit "4" previously marked as Exhibit "4", it appears to be your test paper and with
your signature and the alphabet appears in this exhibit appears to be that of Mia Taha, please examine
this and tell the Honorable Court if that is your test paper?
A Yes, sir.
Q That signature Mia Taha I understand is also your signature?
A Yes, sir.
Q I will show you Exhibit "4-A", will you please examine this Exhibit "4-A" and tell this Honorable Court
if you are familiar with that.
A What subject is that?
Q I am just asking you whether you are familiar with that.
A I cannot remember if I have this kind of subject, sir.
Q How about this signature Mia Taha, are you not familiar with that signature?
A That is min(e), sir.
Q I will show you Exhibit "4-C" which appears to be that in Math, are you familiar with that signature?
A Yes, sir.
Q That is your signature?
A Yes, sir.
Q In fact, these letters in alphabet here are in your own handwriting?
A Yes, sir.
xxx xxx xxx
Q You will deny this Exhibit "1" your signature?
xxx xxx xxx
Q You will deny that this is your handwriting?
A That is my handwriting, sir.
Q Also Exhibit "2"?
A Yes, sir.74
While rebuttal witness Lorna Casantosan insisted that she never delivered any letter of complainant to
herein appellant, the witness presented by the defense on sur-rebuttal, Armando Pasion, who was the
guard on duty at the provincial jail at that time, testified of his own accord because he knew that what
Casantosan said was a blatant lie. Appellant never talked to Amando Pasion nor requested him to
testify for the defense, as related by the witness himself. Hence, there exists no reason whatsoever to
disbelieve the testimony of witness Pasion to the effect that Lorna Casantosan actually went to visit
appellant in jail and in truth handed to him what turned out to be the letters marked as Exhibits "1" and
"2" for the defense.
V. The prosecution insists that the offer of compromise made by appellant is deemed to be an
admission of guilt. This inference does not arise in the instant case. In criminal cases, an offer of
compromise is generally admissible as evidence against the party making it. It is a legal maxim, which
assuredly constitutes one of the bases of the right to penalize, that in the matter of public crimes which
directly affect the public interest, no compromise whatever may be entered into as regards the penal
action. It has long been held, however, that in such cases the accused is permitted to show that the
offer was not made under a consciousness of guilt, but merely to avoid the inconvenience of
imprisonment or for some other reason which would justify a claim by the accused that the offer to
compromise was not in truth an admission of his guilt or an attempt to avoid the legal consequences
which would ordinarily ensue therefrom.75
A primary consideration here is that the evidence for the defense overwhelmingly proves appellant's
innocence of the offense charged. Further, the supposed offer of marriage did not come from appellant
but was actually suggested by a certain Naem, who is an imam or Muslim leader and who likewise
informed appellant that he could be converted into a Muslim so he could marry complainant. As a matter
of fact, when said offer was first made to appellant, he declined because of the fact that he was already
married. On top of these, appellant did not know, not until the trial proper, that his mother actually paid
P30,000.00 for the settlement of these cases. Complainant's own mother, Helen Taha, testified that
present during the negotiations were herself, her husband, Mia, and appellant's mother. Appellant
himself was never present in any of said meetings.76
It has been held that where the accused was not present at the time the offer for monetary consideration
was made, such offer of compromise would not save the day for the prosecution.77 In another case,
this Court ruled that no implied admission can be drawn from the efforts to arrive at a settlement outside
the court, where the accused did not take part in any of the negotiations and the effort to settle the case
was in accordance with the established tribal customs, that is, Muslim practices and traditions, in an
effort to prevent further deterioration of the relations between the parties.78
VI. Generally, an affidavit of desistance by the complainant is not looked upon with favor. It may,
however, create serious doubts as to the liability of appellant, especially if it corroborates appellant's
explanation about the filing of criminal charges.79
In the cases at bar, the letters written by complainant to appellant are very revealing. Most probably
written out of desperation and exasperation with the way she was being treated by her parents,
complainant threw all caution to the winds when she wrote: "Oo, aaminin ko nagkasala ako sa iyo,
pinabilanggo kita dahil nagpanig ako sa mga magulang ko nadala nila ako sa sulsul nila, hindi ko
naipaglaban ang dapat kong ipaglaban," obviously referring to her ineptitude and impotence in helping
appellant out of his predicament. It could, therefore, be safely presumed that the rape charge was
merely an offshoot of the discovery by her parents of the intimate relationship between her and
appellant. In order to avoid retribution from her parents, together with the moral pressure exerted upon
her by her mother, she was forced to concoct her account of the alleged rape.
The Court takes judicial cognizance of the fact that in rural areas in the Philippines, young ladies are
strictly required to act with circumspection and prudence. Great caution is observed so that their
reputations shall remain untainted. Any breath of scandal which brings dishonor to their character
humiliates their entire families.80 It could precisely be that complainant's mother wanted to save face in
the community where everybody knows everybody else, and in an effort to conceal her daughter's
indiscretion and escape the wagging tongues of their small rural community, she had to weave the
scenario of this rape drama.
Although the trial court did observe that a mother would not sacrifice her daughter to tell a story of
defloration, that is not always the case as this Court has noted a long time ago. The books disclose too
many instances of false charges of rape.81 While this Court has, in numerous cases, affirmed the
judgments of conviction rendered by trial courts in rape charges, especially where the offended parties
were very young and presumptively had no ill motives to concoct a story just to secure indictments for
a crime as grave as rape, the Court has likewise reversed judgments of conviction and acquitted the
accused when there are strong indications pointing to the possibility that the rape charges were merely
motivated by some factors except the truth as to their commission.82 This is a case in point. The Court,
therefore, cannot abdicate its duty to declare that the prosecution has failed to meet the exacting test
of moral certainty and proof of guilt of appellant beyond reasonable doubt.
This is not to say that the Court approves of the conduct of appellant. Indisputably, he took advantage
of complainant's feelings for him and breached his vow of fidelity to his wife. As her teacher, he should
have acted as adviser and counselor to complainant and helped her develop in manners and virtue
instead of corrupting her.83 Hence, even as he is freed from physical detention in a prison as an
instrument of human justice, he remains in the spiritual confinement of his conscience as a measure of
divine retribution. Additionally, these ruminations do not rule out such other legal options against him
as may be available in the arsenal of statutory law.
VII. The trial court, in holding for conviction, relied on the presumptio hominis that a young Filipina will
not charge a person with rape if it is not true. In the process, however, it totally disregarded the more
paramount constitutional presumption that an accused is deemed innocent until proven otherwise.
It frequently happens that in a particular case two or more presumptions are involved. Sometimes the
presumptions conflict, one tending to demonstrate the guilt of the accused and the other his innocence.
In such case, it is necessary to examine the basis for each presumption and determine what logical or
social basis exists for each presumption, and then determine which should be regarded as the more
important and entitled to prevail over the other. It must, however, be remembered that the existence of
a presumption indicating guilt does not in itself destroy the presumption against innocence unless the
inculpating presumption, together with all of the evidence, or the lack of any evidence or explanation,
is sufficient to overcome the presumption of innocence by proving the defendant's guilt beyond a
reasonable doubt. Until the defendant's guilt is shown in this manner, the presumption of innocence
continues.84
The rationale for the presumption of guilt in rape cases has been explained in this wise:
In rape cases especially, much credence is accorded the testimony of the complaining witness, on the
theory that she will not choose to accuse her attacker at all and subject herself to the stigma and
indignities her accusation will entail unless she is telling the truth. The rape victim who decides to speak
up exposes herself as a woman whose virtue has been not only violated but also irreparably sullied. In
the eyes of a narrow-minded society, she becomes a cheapened woman, never mind that she did not
submit to her humiliation and has in fact denounced her assailant. At the trial, she will be the object of
lascivious curiosity. People will want to be titillated by the intimate details of her violation. She will
squirm through her testimony as she describes how her honor was defiled, relating every embarrassing
movement of the intrusion upon the most private parts of her body. Most frequently, the defense will
argue that she was not forced to submit but freely conjoined in the sexual act. Her motives will be
impugned. Her chastity will be challenged and maligned. Whatever the outcome of the case, she will
remain a tainted woman, a pariah because her purity has been lost, albeit through no fault of hers. This
is why many a rape victim chooses instead to keep quiet, suppressing her helpless indignation rather
than denouncing her attacker. This is also the reason why, if a woman decides instead to come out
openly and point to her assailant, courts
are prone to believe that she is telling the truth regardless of its consequences. . . .85
The presumption of innocence, on the other hand, is founded upon the first principles of justice, and is
not a mere form but a substantial part of the law. It is not overcome by mere suspicion or conjecture; a
probability that the defendant committed the crime; nor by the fact that he had the opportunity to do
so.86 Its purpose is to balance the scales in what would otherwise be an uneven contest between the
lone individual pitted against the People and all the resources at their command. Its inexorable mandate
is that, for all the authority and influence of the prosecution, the accused must be acquitted and set free
if his guilt cannot be proved beyond the whisper of a doubt.87 This is in consonance with the rule that
conflicts in evidence must be resolved upon the theory of innocence rather than upon a theory of guilt
when it is possible to do so.88
On the basis of the foregoing doctrinal tenets and principles, and in conjunction with the overwhelming
evidence in favor of herein appellant, we do not encounter any difficulty in concluding that the
constitutional presumption on the innocence of an accused must prevail in this particular indictment.
B. The Kidnapping/Illegal Detention Case
It is basic that for kidnapping to exist, there must be indubitable proof that the actual intent of the
malefactor was to deprive the offended party of her liberty.89 In the present charge for that crime, such
intent has not at all been established by the prosecution. Prescinding from the fact that the Taha
spouses desisted from pursuing this charge which they themselves instituted, several grave and
irreconcilable inconsistencies bedevil the prosecution's evidence thereon and cast serious doubts on
the guilt of appellant, as hereunder explained:
To recall, complainant testified that appellant by himself went to fetch her at her parents' house the day
after the alleged rape incident. In her own words, appellant courteously asked her parents to permit her
to help him solicit contributions for her candidacy. When they left the house, appellant walked ahead of
her, obviously with her parents and their neighbors witnessing their departure. It is difficult to
comprehend how one could deduce from these normal and innocuous arrangement any felonious intent
of appellant to deprive complainant of her liberty. One will look in vain for a case where a kidnapping
was committed under such inauspicious circumstances as described by complainant.
Appellant declared that when they left the house of the Taha family, complainant was bringing with her
a plastic bag which later turned out to contain her clothes. This bag was left behind by Mia at Edward's
Subdivision, as hereinbefore noted, and was later delivered to appellant by Benedicto Rubio. Again,
we cannot conceive of a ridiculous situation where the kidnap victim was first allowed to prepare and
pack her clothes, as if she was merely leaving for a pleasant sojourn with the criminal, all these with
the knowledge and consent of her parents who passively looked on without comment.
Complainant alleged that appellant always kept her locked inside the room which they occupied,
whether at Sunset Garden or at Edward's Subdivision, and that she could not unlock the door from the
inside. We must, however, recall that when she was asked on cross-examination about the kind of lock
that was used, she pointed to the doorknob of the courtroom. The court then ordered that the door of
the courtroom be locked and then asked complainant to open it from the inside. She was easily able to
do so and, in fact, she admitted that the two locks in the room at Sunset Garden could also be opened
from the inside in the same manner. This demonstrably undeniable fact was never assailed by the
prosecution. It also failed to rebut the testimony of Fernando Rubio that the room which was occupied
by the couple at Edward's Subdivision could not even be locked because the lock thereof was broken.
When the couple transferred to Edward's Subdivision, they walked along the national highway in broad
daylight. Complainant, therefore, had more than ample opportunity to seek the help of other people and
free herself from appellant if it were true that she was forcibly kidnapped and abused by the latter.90 In
fact, several opportunities to do so had presented themselves from the time they left complainant's
home and during their extended stay in the hotel and in the lodging house.
According to appellant, he went to see the parents of complainant the day after they went to Sunset
Garden to inform them that Mia spent the night in said place. This was neither denied nor impugned by
Helen Taha, her husband, or any other person. On the other hand, the allegation of Helen Taha that
she made a report to the police about her missing daughter was not supported by any corroborative
evidence, such as the police blotter, nor was the police officer to whom she allegedly reported the
incident ever identified or presented in court.
We agree with appellant's contention that the prosecution failed to prove any motive on his part for the
commission of the crime charged. In one case, this Court rejected the kidnapping charge where there
was not the slightest hint of a motive for the crime.91 It is true that, as a rule, the motive of the accused
in a criminal case is immaterial and, not being an element of a crime, it does not have to be proved.92
Where, however, the evidence is weak, without any motive being disclosed by the evidence, the guilt
of the accused becomes open to a reasonable doubt and, hence, an acquittal is in order.93 Nowhere in
the testimony of either the complainant or her mother can any ill motive of a criminal nature be
reasonably drawn. What actually transpired was an elopement or a lovers' tryst, immoral though it may
be.
As a closing note, we are bewildered by the trial court's refusal to admit in evidence the bag of clothes
belonging to complainant which was presented and duly identified by the defense, on its announced
supposition that the clothes could have easily been bought from a department store. Such preposterous
reasoning founded on a mere surmise or speculation, aside from the fact that on rebuttal the
prosecution did not even seek to elicit an explanation or clarification from complainant about said
clothes, strengthens and reinforces our impression of an apparently whimsical exercise of discretion by
the court below. Matters which could have been easily verified were thus cavalierly dismissed and
supplanted by a conjecture, and on such inferential basis a conclusion was then drawn by said court.
We accordingly deem it necessary to reiterate an early and highly regarded disquisition of this Court
against the practice of excluding evidence in the erroneous manner adopted by the trial court:
It has been observed that justice is most effectively and expeditiously administered where trivial
objections to the admission of proof are received with least favor. The practice of excluding evidence
on doubtful objections to its materiality or technical objections to the form of the questions should be
avoided. In a case of any intricacy it is impossible for a judge of first instance, in the early stages of the
development of the proof, to know with any certainty whether the testimony is relevant or not; and where
there is no indication of bad faith on the part of the attorney offering the evidence, the court may as a
rule safely accept the testimony upon the statement of the attorney that the proof offered will be
connected later. Moreover, it must be remembered that in the heat of the battle over which he presides,
a judge of first instance may possibly fall into error in judging the relevancy of proof where a fair and
logical connection is in fact shown. When such a mistake is made and the proof is erroneously ruled
out, the Supreme Court, upon appeal, often finds itself embarrassed and possibly unable to correct the
effects of the error without returning the case for a new trial, a step which this court is always very loath
to take. On the other hand, the admission of proof in a court of first instance, even if the question as to
its form, materiality, or relevancy is doubtful, can never result in much harm to either litigant, because
the trial judge is supposed to know the law and it is its duty, upon final consideration of the case, to
distinguish the relevant and material from the irrelevant and immaterial. If this course is followed and
the cause is prosecuted to the Supreme Court upon appeal, this court then has all the materials before
it necessary to make a correct judgment.94
At any rate, despite that procedural lapse, we find in the records of these cases sufficient and
substantial evidence which warrant and demand the acquittal of appellant. Apropos thereto, we take
this opportunity to repeat this age-old observation and experience of mankind on the penological and
societal effect of capital punishment: If it is justified, it serves as a deterrent; if injudiciously imposed, it
generates resentment.
Finally, we are constrained to reiterate here that Republic Act No. 7659 which reimposed the death
penalty on certain heinous crimes took effect on December 31, 1993, that is, fifteen days after its
publication in the December 16, 1993 issues of the Manila Bulletin, Philippine Star, Malaya and
Philippine Times Journal,95 and not on January 1, 1994 as is sometimes misinterpreted.
WHEREFORE, the judgment appealed from is hereby REVERSED and SET ASIDE, and accused-
appellant Danny Godoy is hereby ACQUITTED of the crimes of rape and kidnapping with serious illegal
detention charged in Criminal Cases Nos. 11640 and 11641 of the Regional Trial Court for Palawan
and Puerto Princesa City, Branch 49. It is hereby ORDERED that he be released forthwith, unless he
is otherwise detained for any other valid cause.
SO ORDERED.
Narvasa, C.J., Feliciano, Padilla, Davide, Jr., Romero, Bellosillo, Melo, Vitug, Kapunan, Mendoza,
Francisco, Hermosisima, Jr. and Panganiban, JJ., concur.
Puno, J., took no part.

BPI-Family Bank vs. CA, 330 SCRA 507 (2007), GR 122480

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 123498 November 23, 2007
BPI FAMILY BANK, Petitioner,
vs.
AMADO FRANCO and COURT OF APPEALS, Respondents.
DECISION
NACHURA, J.:
Banks are exhorted to treat the accounts of their depositors with meticulous care and utmost fidelity.
We reiterate this exhortation in the case at bench.
Before us is a Petition for Review on Certiorari seeking the reversal of the Court of Appeals (CA)
Decision1 in CA-G.R. CV No. 43424 which affirmed with modification the judgment2 of the Regional
Trial Court, Branch 55, Manila (Manila RTC), in Civil Case No. 90-53295.
This case has its genesis in an ostensible fraud perpetrated on the petitioner BPI Family Bank (BPI-
FB) allegedly by respondent Amado Franco (Franco) in conspiracy with other individuals,3 some of
whom opened and maintained separate accounts with BPI-FB, San Francisco del Monte (SFDM)
branch, in a series of transactions.
On August 15, 1989, Tevesteco Arrastre-Stevedoring Co., Inc. (Tevesteco) opened a savings and
current account with BPI-FB. Soon thereafter, or on August 25, 1989, First Metro Investment
Corporation (FMIC) also opened a time deposit account with the same branch of BPI-FB with a deposit
of ₱100,000,000.00, to mature one year thence.
Subsequently, on August 31, 1989, Franco opened three accounts, namely, a current,4 savings,5 and
time deposit,6 with BPI-FB. The current and savings accounts were respectively funded with an initial
deposit of ₱500,000.00 each, while the time deposit account had ₱1,000,000.00 with a maturity date
of August 31, 1990. The total amount of ₱2,000,000.00 used to open these accounts is traceable to a
check issued by Tevesteco allegedly in consideration of Franco’s introduction of Eladio Teves,7 who
was looking for a conduit bank to facilitate Tevesteco’s business transactions, to Jaime Sebastian, who
was then BPI-FB SFDM’s Branch Manager. In turn, the funding for the ₱2,000,000.00 check was part
of the ₱80,000,000.00 debited by BPI-FB from FMIC’s time deposit account and credited to Tevesteco’s
current account pursuant to an Authority to Debit purportedly signed by FMIC’s officers.
It appears, however, that the signatures of FMIC’s officers on the Authority to Debit were forged.8 On
September 4, 1989, Antonio Ong,9 upon being shown the Authority to Debit, personally declared his
signature therein to be a forgery. Unfortunately, Tevesteco had already effected several withdrawals
from its current account (to which had been credited the ₱80,000,000.00 covered by the forged
Authority to Debit) amounting to ₱37,455,410.54, including the ₱2,000,000.00 paid to Franco.
On September 8, 1989, impelled by the need to protect its interests in light of FMIC’s forgery claim,
BPI-FB, thru its Senior Vice-President, Severino Coronacion, instructed Jesus Arangorin10 to debit
Franco’s savings and current accounts for the amounts remaining therein.11 However, Franco’s time
deposit account could not be debited due to the capacity limitations of BPI-FB’s computer.12
In the meantime, two checks13 drawn by Franco against his BPI-FB current account were dishonored
upon presentment for payment, and stamped with a notation "account under garnishment." Apparently,
Franco’s current account was garnished by virtue of an Order of Attachment issued by the Regional
Trial Court of Makati (Makati RTC) in Civil Case No. 89-4996 (Makati Case), which had been filed by
BPI-FB against Franco et al.,14 to recover the ₱37,455,410.54 representing Tevesteco’s total
withdrawals from its account.
Notably, the dishonored checks were issued by Franco and presented for payment at BPI-FB prior to
Franco’s receipt of notice that his accounts were under garnishment.15 In fact, at the time the Notice of
Garnishment dated September 27, 1989 was served on BPI-FB, Franco had yet to be impleaded in the
Makati case where the writ of attachment was issued.
It was only on May 15, 1990, through the service of a copy of the Second Amended Complaint in Civil
Case No. 89-4996, that Franco was impleaded in the Makati case.16 Immediately, upon receipt of such
copy, Franco filed a Motion to Discharge Attachment which the Makati RTC granted on May 16, 1990.
The Order Lifting the Order of Attachment was served on BPI-FB on even date, with Franco demanding
the release to him of the funds in his savings and current accounts. Jesus Arangorin, BPI-FB’s new
manager, could not forthwith comply with the demand as the funds, as previously stated, had already
been debited because of FMIC’s forgery claim. As such, BPI-FB’s computer at the SFDM Branch
indicated that the current account record was "not on file."
With respect to Franco’s savings account, it appears that Franco agreed to an arrangement, as a favor
to Sebastian, whereby ₱400,000.00 from his savings account was temporarily transferred to Domingo
Quiaoit’s savings account, subject to its immediate return upon issuance of a certificate of deposit which
Quiaoit needed in connection with his visa application at the Taiwan Embassy. As part of the
arrangement, Sebastian retained custody of Quiaoit’s savings account passbook to ensure that no
withdrawal would be effected therefrom, and to preserve Franco’s deposits.
On May 17, 1990, Franco pre-terminated his time deposit account. BPI-FB deducted the amount of
₱63,189.00 from the remaining balance of the time deposit account representing advance interest paid
to him.
These transactions spawned a number of cases, some of which we had already resolved.
FMIC filed a complaint against BPI-FB for the recovery of the amount of ₱80,000,000.00 debited from
its account.17 The case eventually reached this Court, and in BPI Family Savings Bank, Inc. v. First
Metro Investment Corporation,18 we upheld the finding of the courts below that BPI-FB failed to exercise
the degree of diligence required by the nature of its obligation to treat the accounts of its depositors
with meticulous care. Thus, BPI-FB was found liable to FMIC for the debited amount in its time deposit.
It was ordered to pay ₱65,332,321.99 plus interest at 17% per annum from August 29, 1989 until fully
restored. In turn, the 17% shall itself earn interest at 12% from October 4, 1989 until fully paid.
In a related case, Edgardo Buenaventura, Myrna Lizardo and Yolanda Tica (Buenaventura, et al.),19
recipients of a ₱500,000.00 check proceeding from the ₱80,000,000.00 mistakenly credited to
Tevesteco, likewise filed suit. Buenaventura et al., as in the case of Franco, were also prevented from
effecting withdrawals20 from their current account with BPI-FB, Bonifacio Market, Edsa, Caloocan City
Branch. Likewise, when the case was elevated to this Court docketed as BPI Family Bank v.
Buenaventura,21 we ruled that BPI-FB had no right to freeze Buenaventura, et al.’s accounts and
adjudged BPI-FB liable therefor, in addition to damages.
Meanwhile, BPI-FB filed separate civil and criminal cases against those believed to be the perpetrators
of the multi-million peso scam.22 In the criminal case, Franco, along with the other accused, except for
Manuel Bienvenida who was still at large, were acquitted of the crime of Estafa as defined and
penalized under Article 351, par. 2(a) of the Revised Penal Code.23 However, the civil case24 remains
under litigation and the respective rights and liabilities of the parties have yet to be adjudicated.
Consequently, in light of BPI-FB’s refusal to heed Franco’s demands to unfreeze his accounts and
release his deposits therein, the latter filed on June 4, 1990 with the Manila RTC the subject suit. In his
complaint, Franco prayed for the following reliefs: (1) the interest on the remaining balance25 of his
current account which was eventually released to him on October 31, 1991; (2) the balance26 on his
savings account, plus interest thereon; (3) the advance interest27 paid to him which had been deducted
when he pre-terminated his time deposit account; and (4) the payment of actual, moral and exemplary
damages, as well as attorney’s fees.
BPI-FB traversed this complaint, insisting that it was correct in freezing the accounts of Franco and
refusing to release his deposits, claiming that it had a better right to the amounts which consisted of
part of the money allegedly fraudulently withdrawn from it by Tevesteco and ending up in Franco’s
accounts. BPI-FB asseverated that the claimed consideration of ₱2,000,000.00 for the introduction
facilitated by Franco between George Daantos and Eladio Teves, on the one hand, and Jaime
Sebastian, on the other, spoke volumes of Franco’s participation in the fraudulent transaction.
On August 4, 1993, the Manila RTC rendered judgment, the dispositive portion of which reads as
follows:
WHEREFORE, in view of all the foregoing, judgment is hereby rendered in favor of [Franco] and against
[BPI-FB], ordering the latter to pay to the former the following sums:
1. ₱76,500.00 representing the legal rate of interest on the amount of ₱450,000.00 from May 18, 1990
to October 31, 1991;
2. ₱498,973.23 representing the balance on [Franco’s] savings account as of May 18, 1990, together
with the interest thereon in accordance with the bank’s guidelines on the payment therefor;
3. ₱30,000.00 by way of attorney’s fees; and
4. ₱10,000.00 as nominal damages.
The counterclaim of the defendant is DISMISSED for lack of factual and legal anchor.
Costs against [BPI-FB].
SO ORDERED.28
Unsatisfied with the decision, both parties filed their respective appeals before the CA. Franco confined
his appeal to the Manila RTC’s denial of his claim for moral and exemplary damages, and the diminutive
award of attorney’s fees. In affirming with modification the lower court’s decision, the appellate court
decreed, to wit:
WHEREFORE, foregoing considered, the appealed decision is hereby AFFIRMED with modification
ordering [BPI-FB] to pay [Franco] ₱63,189.00 representing the interest deducted from the time deposit
of plaintiff-appellant. ₱200,000.00 as moral damages and ₱100,000.00 as exemplary damages,
deleting the award of nominal damages (in view of the award of moral and exemplary damages) and
increasing the award of attorney’s fees from ₱30,000.00 to ₱75,000.00.
Cost against [BPI-FB].
SO ORDERED.29
In this recourse, BPI-FB ascribes error to the CA when it ruled that: (1) Franco had a better right to the
deposits in the subject accounts which are part of the proceeds of a forged Authority to Debit; (2) Franco
is entitled to interest on his current account; (3) Franco can recover the ₱400,000.00 deposit in Quiaoit’s
savings account; (4) the dishonor of Franco’s checks was not legally in order; (5) BPI-FB is liable for
interest on Franco’s time deposit, and for moral and exemplary damages; and (6) BPI-FB’s counter-
claim has no factual and legal anchor.
The petition is partly meritorious.
We are in full accord with the common ruling of the lower courts that BPI-FB cannot unilaterally freeze
Franco’s accounts and preclude him from withdrawing his deposits. However, contrary to the appellate
court’s ruling, we hold that Franco is not entitled to unearned interest on the time deposit as well as to
moral and exemplary damages.
First. On the issue of who has a better right to the deposits in Franco’s accounts, BPI-FB urges us that
the legal consequence of FMIC’s forgery claim is that the money transferred by BPI-FB to Tevesteco
is its own, and considering that it was able to recover possession of the same when the money was
redeposited by Franco, it had the right to set up its ownership thereon and freeze Franco’s accounts.
BPI-FB contends that its position is not unlike that of an owner of personal property who regains
possession after it is stolen, and to illustrate this point, BPI-FB gives the following example: where X’s
television set is stolen by Y who thereafter sells it to Z, and where Z unwittingly entrusts possession of
the TV set to X, the latter would have the right to keep possession of the property and preclude Z from
recovering possession thereof. To bolster its position, BPI-FB cites Article 559 of the Civil Code, which
provides:
Article 559. The possession of movable property acquired in good faith is equivalent to a title.
Nevertheless, one who has lost any movable or has been unlawfully deprived thereof, may recover it
from the person in possession of the same.
If the possessor of a movable lost or of which the owner has been unlawfully deprived, has acquired it
in good faith at a public sale, the owner cannot obtain its return without reimbursing the price paid
therefor.
BPI-FB’s argument is unsound. To begin with, the movable property mentioned in Article 559 of the
Civil Code pertains to a specific or determinate thing.30 A determinate or specific thing is one that is
individualized and can be identified or distinguished from others of the same kind.31
In this case, the deposit in Franco’s accounts consists of money which, albeit characterized as a
movable, is generic and fungible.32 The quality of being fungible depends upon the possibility of the
property, because of its nature or the will of the parties, being substituted by others of the same kind,
not having a distinct individuality.33
Significantly, while Article 559 permits an owner who has lost or has been unlawfully deprived of a
movable to recover the exact same thing from the current possessor, BPI-FB simply claims ownership
of the equivalent amount of money, i.e., the value thereof, which it had mistakenly debited from FMIC’s
account and credited to Tevesteco’s, and subsequently traced to Franco’s account. In fact, this is what
BPI-FB did in filing the Makati Case against Franco, et al. It staked its claim on the money itself which
passed from one account to another, commencing with the forged Authority to Debit.
It bears emphasizing that money bears no earmarks of peculiar ownership,34 and this characteristic is
all the more manifest in the instant case which involves money in a banking transaction gone awry. Its
primary function is to pass from hand to hand as a medium of exchange, without other evidence of its
title.35 Money, which had passed through various transactions in the general course of banking
business, even if of traceable origin, is no exception.
Thus, inasmuch as what is involved is not a specific or determinate personal property, BPI-FB’s
illustrative example, ostensibly based on Article 559, is inapplicable to the instant case.
There is no doubt that BPI-FB owns the deposited monies in the accounts of Franco, but not as a legal
consequence of its unauthorized transfer of FMIC’s deposits to Tevesteco’s account. BPI-FB
conveniently forgets that the deposit of money in banks is governed by the Civil Code provisions on
simple loan or mutuum.36 As there is a debtor-creditor relationship between a bank and its depositor,
BPI-FB ultimately acquired ownership of Franco’s deposits, but such ownership is coupled with a
corresponding obligation to pay him an equal amount on demand.37 Although BPI-FB owns the deposits
in Franco’s accounts, it cannot prevent him from demanding payment of BPI-FB’s obligation by drawing
checks against his current account, or asking for the release of the funds in his savings account. Thus,
when Franco issued checks drawn against his current account, he had every right as creditor to expect
that those checks would be honored by BPI-FB as debtor.
More importantly, BPI-FB does not have a unilateral right to freeze the accounts of Franco based on
its mere suspicion that the funds therein were proceeds of the multi-million peso scam Franco was
allegedly involved in. To grant BPI-FB, or any bank for that matter, the right to take whatever action it
pleases on deposits which it supposes are derived from shady transactions, would open the floodgates
of public distrust in the banking industry.
Our pronouncement in Simex International (Manila), Inc. v. Court of Appeals38 continues to resonate,
thus:
The banking system is an indispensable institution in the modern world and plays a vital role in the
economic life of every civilized nation. Whether as mere passive entities for the safekeeping and saving
of money or as active instruments of business and commerce, banks have become an ubiquitous
presence among the people, who have come to regard them with respect and even gratitude and, most
of all, confidence. Thus, even the humble wage-earner has not hesitated to entrust his life’s savings to
the bank of his choice, knowing that they will be safe in its custody and will even earn some interest for
him. The ordinary person, with equal faith, usually maintains a modest checking account for security
and convenience in the settling of his monthly bills and the payment of ordinary expenses. x x x.
In every case, the depositor expects the bank to treat his account with the utmost fidelity, whether such
account consists only of a few hundred pesos or of millions. The bank must record every single
transaction accurately, down to the last centavo, and as promptly as possible. This has to be done if
the account is to reflect at any given time the amount of money the depositor can dispose of as he sees
fit, confident that the bank will deliver it as and to whomever directs. A blunder on the part of the bank,
such as the dishonor of the check without good reason, can cause the depositor not a little
embarrassment if not also financial loss and perhaps even civil and criminal litigation.
The point is that as a business affected with public interest and because of the nature of its functions,
the bank is under obligation to treat the accounts of its depositors with meticulous care, always having
in mind the fiduciary nature of their relationship. x x x.
Ineluctably, BPI-FB, as the trustee in the fiduciary relationship, is duty bound to know the signatures of
its customers. Having failed to detect the forgery in the Authority to Debit and in the process
inadvertently facilitate the FMIC-Tevesteco transfer, BPI-FB cannot now shift liability thereon to Franco
and the other payees of checks issued by Tevesteco, or prevent withdrawals from their respective
accounts without the appropriate court writ or a favorable final judgment.
Further, it boggles the mind why BPI-FB, even without delving into the authenticity of the signature in
the Authority to Debit, effected the transfer of ₱80,000,000.00 from FMIC’s to Tevesteco’s account,
when FMIC’s account was a time deposit and it had already paid advance interest to FMIC. Considering
that there is as yet no indubitable evidence establishing Franco’s participation in the forgery, he remains
an innocent party. As between him and BPI-FB, the latter, which made possible the present
predicament, must bear the resulting loss or inconvenience.
Second. With respect to its liability for interest on Franco’s current account, BPI-FB argues that its non-
compliance with the Makati RTC’s Order Lifting the Order of Attachment and the legal consequences
thereof, is a matter that ought to be taken up in that court.
The argument is tenuous. We agree with the succinct holding of the appellate court in this respect. The
Manila RTC’s order to pay interests on Franco’s current account arose from BPI-FB’s unjustified refusal
to comply with its obligation to pay Franco pursuant to their contract of mutuum. In other words, from
the time BPI-FB refused Franco’s demand for the release of the deposits in his current account,
specifically, from May 17, 1990, interest at the rate of 12% began to accrue thereon.39
Undeniably, the Makati RTC is vested with the authority to determine the legal consequences of BPI-
FB’s non-compliance with the Order Lifting the Order of Attachment. However, such authority does not
preclude the Manila RTC from ruling on BPI-FB’s liability to Franco for payment of interest based on its
continued and unjustified refusal to perform a contractual obligation upon demand. After all, this was
the core issue raised by Franco in his complaint before the Manila RTC.
Third. As to the award to Franco of the deposits in Quiaoit’s account, we find no reason to depart from
the factual findings of both the Manila RTC and the CA.
Noteworthy is the fact that Quiaoit himself testified that the deposits in his account are actually owned
by Franco who simply accommodated Jaime Sebastian’s request to temporarily transfer ₱400,000.00
from Franco’s savings account to Quiaoit’s account.40 His testimony cannot be characterized as
hearsay as the records reveal that he had personal knowledge of the arrangement made between
Franco, Sebastian and himself.41
BPI-FB makes capital of Franco’s belated allegation relative to this particular arrangement. It insists
that the transaction with Quiaoit was not specifically alleged in Franco’s complaint before the Manila
RTC. However, it appears that BPI-FB had impliedly consented to the trial of this issue given its
extensive cross-examination of Quiaoit.
Section 5, Rule 10 of the Rules of Court provides:
Section 5. Amendment to conform to or authorize presentation of evidence.— When issues not raised
by the pleadings are tried with the express or implied consent of the parties, they shall be treated in all
respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be
necessary to cause them to conform to the evidence and to raise these issues may be made upon
motion of any party at any time, even after judgment; but failure to amend does not affect the result of
the trial of these issues. If evidence is objected to at the trial on the ground that it is now within the
issues made by the pleadings, the court may allow the pleadings to be amended and shall do so with
liberality if the presentation of the merits of the action and the ends of substantial justice will be
subserved thereby. The court may grant a continuance to enable the amendment to be made.
(Emphasis supplied)
In all, BPI-FB’s argument that this case is not the right forum for Franco to recover the ₱400,000.00
begs the issue. To reiterate, Quiaoit, testifying during the trial, unequivocally disclaimed ownership of
the funds in his account, and pointed to Franco as the actual owner thereof. Clearly, Franco’s action
for the recovery of his deposits appropriately covers the deposits in Quiaoit’s account.
Fourth. Notwithstanding all the foregoing, BPI-FB continues to insist that the dishonor of Franco’s
checks respectively dated September 11 and 18, 1989 was legally in order in view of the Makati RTC’s
supplemental writ of attachment issued on September 14, 1989. It posits that as the party that applied
for the writ of attachment before the Makati RTC, it need not be served with the Notice of Garnishment
before it could place Franco’s accounts under garnishment.
The argument is specious. In this argument, we perceive BPI-FB’s clever but transparent ploy to
circumvent Section 4,42 Rule 13 of the Rules of Court. It should be noted that the strict requirement on
service of court papers upon the parties affected is designed to comply with the elementary requisites
of due process. Franco was entitled, as a matter of right, to notice, if the requirements of due process
are to be observed. Yet, he received a copy of the Notice of Garnishment only on September 27, 1989,
several days after the two checks he issued were dishonored by BPI-FB on September 20 and 21,
1989. Verily, it was premature for BPI-FB to freeze Franco’s accounts without even awaiting service of
the Makati RTC’s Notice of Garnishment on Franco.
Additionally, it should be remembered that the enforcement of a writ of attachment cannot be made
without including in the main suit the owner of the property attached by virtue thereof. Section 5, Rule
13 of the Rules of Court specifically provides that "no levy or attachment pursuant to the writ issued x
x x shall be enforced unless it is preceded, or contemporaneously accompanied, by service of
summons, together with a copy of the complaint, the application for attachment, on the defendant within
the Philippines."
Franco was impleaded as party-defendant only on May 15, 1990. The Makati RTC had yet to acquire
jurisdiction over the person of Franco when BPI-FB garnished his accounts.43 Effectively, therefore, the
Makati RTC had no authority yet to bind the deposits of Franco through the writ of attachment, and
consequently, there was no legal basis for BPI-FB to dishonor the checks issued by Franco.
Fifth. Anent the CA’s finding that BPI-FB was in bad faith and as such liable for the advance interest it
deducted from Franco’s time deposit account, and for moral as well as exemplary damages, we find it
proper to reinstate the ruling of the trial court, and allow only the recovery of nominal damages in the
amount of ₱10,000.00. However, we retain the CA’s award of ₱75,000.00 as attorney’s fees.
In granting Franco’s prayer for interest on his time deposit account and for moral and exemplary
damages, the CA attributed bad faith to BPI-FB because it (1) completely disregarded its obligation to
Franco; (2) misleadingly claimed that Franco’s deposits were under garnishment; (3) misrepresented
that Franco’s current account was not on file; and (4) refused to return the ₱400,000.00 despite the fact
that the ostensible owner, Quiaoit, wanted the amount returned to Franco.
In this regard, we are guided by Article 2201 of the Civil Code which provides:
Article 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good
faith is liable shall be those that are the natural and probable consequences of the breach of the
obligation, and which the parties have foreseen or could have reasonable foreseen at the time the
obligation was constituted.
In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages
which may be reasonably attributed to the non-performance of the obligation. (Emphasis supplied.)
We find, as the trial court did, that BPI-FB acted out of the impetus of self-protection and not out of
malevolence or ill will. BPI-FB was not in the corrupt state of mind contemplated in Article 2201 and
should not be held liable for all damages now being imputed to it for its breach of obligation. For the
same reason, it is not liable for the unearned interest on the time deposit.
Bad faith does not simply connote bad judgment or negligence; it imports a dishonest purpose or some
moral obliquity and conscious doing of wrong; it partakes of the nature of fraud.44 We have held that it
is a breach of a known duty through some motive of interest or ill will.45 In the instant case, we cannot
attribute to BPI-FB fraud or even a motive of self-enrichment. As the trial court found, there was no
denial whatsoever by BPI-FB of the existence of the accounts. The computer-generated document
which indicated that the current account was "not on file" resulted from the prior debit by BPI-FB of the
deposits. The remedy of freezing the account, or the garnishment, or even the outright refusal to honor
any transaction thereon was resorted to solely for the purpose of holding on to the funds as a security
for its intended court action,46 and with no other goal but to ensure the integrity of the accounts.
We have had occasion to hold that in the absence of fraud or bad faith,47 moral damages cannot be
awarded; and that the adverse result of an action does not per se make the action wrongful, or the party
liable for it. One may err, but error alone is not a ground for granting such damages.48
An award of moral damages contemplates the existence of the following requisites: (1) there must be
an injury clearly sustained by the claimant, whether physical, mental or psychological; (2) there must
be a culpable act or omission factually established; (3) the wrongful act or omission of the defendant is
the proximate cause of the injury sustained by the claimant; and (4) the award for damages is
predicated on any of the cases stated in Article 2219 of the Civil Code.49
Franco could not point to, or identify any particular circumstance in Article 2219 of the Civil Code,50
upon which to base his claim for moral damages.1âwphi1
Thus, not having acted in bad faith, BPI-FB cannot be held liable for moral damages under Article 2220
of the Civil Code for breach of contract.51
We also deny the claim for exemplary damages. Franco should show that he is entitled to moral,
temperate, or compensatory damages before the court may even consider the question of whether
exemplary damages should be awarded to him.52 As there is no basis for the award of moral damages,
neither can exemplary damages be granted.
While it is a sound policy not to set a premium on the right to litigate,53 we, however, find that Franco is
entitled to reasonable attorney’s fees for having been compelled to go to court in order to assert his
right. Thus, we affirm the CA’s grant of ₱75,000.00 as attorney’s fees.
Attorney’s fees may be awarded when a party is compelled to litigate or incur expenses to protect his
interest,54 or when the court deems it just and equitable.55 In the case at bench, BPI-FB refused to
unfreeze the deposits of Franco despite the Makati RTC’s Order Lifting the Order of Attachment and
Quiaoit’s unwavering assertion that the ₱400,000.00 was part of Franco’s savings account. This refusal
constrained Franco to incur expenses and litigate for almost two (2) decades in order to protect his
interests and recover his deposits. Therefore, this Court deems it just and equitable to grant Franco
₱75,000.00 as attorney’s fees. The award is reasonable in view of the complexity of the issues and the
time it has taken for this case to be resolved.56
Sixth. As for the dismissal of BPI-FB’s counter-claim, we uphold the Manila RTC’s ruling, as affirmed
by the CA, that BPI-FB is not entitled to recover ₱3,800,000.00 as actual damages. BPI-FB’s alleged
loss of profit as a result of Franco’s suit is, as already pointed out, of its own making. Accordingly, the
denial of its counter-claim is in order.
WHEREFORE, the petition is PARTIALLY GRANTED. The Court of Appeals Decision dated November
29, 1995 is AFFIRMED with the MODIFICATION that the award of unearned interest on the time deposit
and of moral and exemplary damages is DELETED.
No pronouncement as to costs.

C. Judicial Admissions

Cases:

Lucido vs Calupitan, 27 Phil 48 (1914), GR 8200

Republic of the Philippines

SUPREME COURT
Manila
EN BANC
G.R. No. L-8200 March 17, 1914
LEONARD LUCIDO, plaintiff-appellee,
vs.
GELASIO CALUPITAN, ET AL., defendants-appellants.
Pedro Guevara for appellants.
Ramon Diokno for appellee.
TRENT, J.:
In this case it appears that some chattels and real estate belonging to the plaintiff, Lucido, were
regularly sold at an execution sale on February 10, 1903, to one Rosales, who the text day transferred
a one-half interest in the property of Zolaivar. On March 30, 1903, a public document was executed
and signed by all of the above parties and the defendant, Gelasio Calupitan, wherein it was stated that
Rosales and Zolaivar, with the consent of Lucido, sold all their rights had obligation pertaining to the
property in question to Calupitan for the amount of the purchase price together with 1 per cent per
month interest thereon up to the time of redemption, or 1,687 Mexican dollars, plus 33.74 Mexican
dollars, the amount of the interest. It will be observed that the computation of the transfer price is in
accordance with section 465 of the Code of Civil Procedure. On the same day Lucido and Calupitan
executed the following document:
I, Gelasio Calupitan y Agarao, married, certify that I have delivered this statement to Leonardo Lucido
y Vidal to witness that his lands, which appear in the instrument I hold from the deputy sheriff and for
which he has accepted money from me, I have ceded to him all the irrigated lands until such time as
he may repurchase all said lands from me (not only he irrigated ones), as also the Vienna chairs, the
five-lamp chandelier, a lamp stand, two wall tables, and a marble table; no coconut tree on said irrigated
land is included. Apart from this, our real agreement is to permit three (3) whole year to elapse,
reckoned from the date of this instrument, which has been drawn up n duplicate, before he may redeem
or repurchase them from me.
The lower court held that this document constituted a sale with the right to conventional redemption set
forth in articles 1507 et seq. of the Civil Code. The present action not having been instituted until
February 17, 1910, the fur the question arose as to whether the redemption period had expired, which
the lower court decided in the negative. The lower court further found as a fact that Lucido had prior to
the institution of the action offered the redemption price to the defendant, who refused it, and that this
offer was a sufficient compliance with article 1518 of the Civil Code. The decision of the lower court
was that the property in question should be returned to the plaintiff. From this judgment the defendant
appealed, and all three of the above rulings of the court are assigned as errors.
1. Considerable doubt might arise as to the correctness of the ruling of the lower court upon the first
question, if the document executed by the execution purchasers and the parties to this action stood
alone. In that document it appears that Calupitan acquired the rights and obligations of the execution
purchasers pertaining to the property in question. These rights and obligations are defined in the Code
of Civil Procedure to be the ownership of the property sold, subject only to the right of redemption on
the part of the judgment debtor or a redemptioner, within one year from the date of the sale. (Secs.
463-465, Code Civ. Proc.) Were this the nature of the transaction between the parties, however, the
intervention of Lucido in the transfer would be wholly unnecessary. Hence, the fact that he intervened
as an interested party is at least some indication that the parties intended something more or different
by the document in question than a simple assignment of the rights and obligations of the execution
purchasers to a third person.
Any doubt, however, as to the character of this transaction is removed by the agreement entered into
between Lucido and calupitan on the same day. In this document it is distinctly stipulated that the right
to redeem the property is preserved to Lucido, to be exercised after the expiration of three years. The
right to repurchase must necessary imply a former ownership of the property.
Further indication that Calupitan himself considered this transaction as a sale with the right to
conventional redemption is to be found in his original answer to the complaint. This original answer was
introduced in evidence by the plaintiff over the objection of the defendant. Its admission was proper,
especially in view of the fact that it was signed by Calupitan himself, who was the time acting as his
own attorney.
Jones on evidence (secs. 272, 273), after remarking that the earlier cases were not in harmony on the
point, says:
Many of the cases holding that pleadings inadmissible as admissions were based on the theory that
most of the allegations were merely pleader's matter -- fiction stated by counsel and sanctioned by the
courts. The whole modern tendency is to reject this view and to treat pleadings as statements of the
real issues in the cause and hence as admissions of the parties, having weight according to the
circumstances of each case. But some of the authorities still hold that if the pleading is not signed by
the party there should be some proof that he has authorized it.
On the same principles where amended pleadings have been filed, allegations in the original pleadings
are held admissible, but in such case the original pleadings can have no effect, unless formally offered
in evidence.
In this original answer it was expressly stated that the transaction was one of sale with the right to
repurchase governed by the provisions of articles 1507 et seq. of the Civil Code.
It further appears from the uncontradicted testimony of the plaintiff that he furnished $20 Mexican of
the account necessary to redeem the property from the execution purchasers. It therefore appears
beyond dispute that the redemption of the property from the execution purchasers was made by the
plaintiff himself by means of a loan furnished by the defendant Calupitan, who took possession of the
major portion of the land as his security for its redemption. The ruling of the lower court the transaction
between Lucido and Calupitan was one of purchase and sale with the right to redeem was therefore
correct.
2. By the terms of his agreement with Calupitan the plaintiff could not exercise his right to redeem the
property within three years from March 30, 1903; and the lower court arrived at the date upon which
the right to redeem expired by computing five years from March 30, 1906, on the ground that there was
no express agreement as to how long the right to repurchase, once available, should continue. Counsel
for the appellant admits in his brief that the complaint was filed forty-three days before the expiration of
this period. In accordance with our decision in Rosales vs. Reyes and Ordoveza (25 Phil. Rep., 495),
we hold that this ruling of the court was correct.
3. The court held that the plaintiff had actually tendered the redemption price to the defendant Calupitan.
After an examination of the evidence of record as to this finding of fact, we concur therein. We discussed
the legal sufficiency of such tender in the above-cited case of Rosales vs. Reyes and Ordoveza, and
held that it was sufficient. This assignment of error must therefore be held to be unfounded.
4. The defendants Oreta and Bueno have no interest in the subject matter of this action. it appears that
the defendant Dorado purchased the land from his codefendant Calupitan subsequent to the tender of
the redemption price to the latter by the plaintiff. It does not appear that the property was ever registered
by any one, nor was the document of sale with the right to repurchase registered by either Calupitan or
Lucido. No evidence of the purchase of the land from Calupitan by Dorado is of record with the
exception of the oral testimony although it may be taken as established that such a sale actually took
place, since all the parties interested agree on this point. Dorado himself testified that he purchased
the property with the knowledge that Calupitan had purchased the property from Lucido subject to the
right of redemption and insists that he purchased with the knowledge and consent of Lucido. Lucido
denies that he was aware of the sale of Dorado until after it had taken place. Upon this state on facts,
it is clear that the following provisions of article 1510 of the Civil Code are applicable:
The vendor may bring his action against every possessor whose right arises that of the vendee, even
though in the second contract no mention should have been made of the conventional redemption;
without prejudice to the provisions of the Mortgage Law with regard to third persons.
The provisions of the Mortgage Law with regard to third persons are clearly not applicable to Dorado.
(Manresa, vol., 10, p. 317.)
5. The lower court ordered the redelivery of the land to the plaintiff upon his payment to Calupitan of
P1,600, plus the costs entailed in the execution of the document of repurchase. The amount paid to
the purchaser at the execution sale for the redemption of the property was $1,720.74 Mexican. Of this
amount the plaintiff furnished $120 Mexican, and Calupitan the balance of $1,600.74 Mexican. No
amount is fixed in the document of purchase and sale above set forth, but the amount borrowed from
Calupitan to redeem the land from the execution sale being thus clearly established no objection can
be or is made to the plaintiff's paying this amount. In ordering the payment of this amount to the
defendant the lower court failed to reduce it to Philippine currency. On this appeal plaintiff alleges that
this amount in Mexican currency exceeds the amount he actually owes to the defendant by about P100,
but that rather than spend the time and incur the expense attendant to new trial for the purpose of
determining the equivalent of his amount in Philippine currency he is agreeable to pay the defendant
P1,600.74 Philippine currency, as the redemption price of the property. In view of this offer and in case
it is accepted by the defendant it will be unnecessary to go through formality of a new trial for the
purpose of ascertaining the amount of the fact that it is claimed that Calupitan has sold the land in
question to his codefendant, Macario Dorado, and it not clearly appearing to whom the plaintiff should
pay the P1.600.74, we think this amount should be turned over to the clerk of the Court of First Instance
of the Province of Laguna to be held by him until it is determined in the proper manner who is the owner
of this amount, Calupitan for Dorado.
For the foregoing reasons, judgment will be entered directing the defendants Calupitan and Dorado to
deliver the possession of the land in question to the plaintiff upon the plaintiff's depositing with the clerk
of the court the sum of P1,600.74, to be disposed of in the manner above set forth. In all other respects
the judgment appealed from is affirmed with costs against the appellants Calupitan and Dorado.
Arellano, C.J., Carson and Araullo, JJ., concur.

Separate Opinions
MORELAND, J., dissenting:
I am extremely sorry to be obliged to dissent from the opinion of my brethren. Were it not for the fact
that I regard the decision in this case so fundamental in character and its effects on the law relative to
sales with the right of repurchase so far-reaching, I would be silent. I cannot permit to pass
unchallenged a doctrine which, in my judgment, if followed in the future, as it is to be presumed it will
be, renders entirely ineffective the main provisions of the statute law governing a given subject. This
decision, taken together with that of Rosales vs. Reyes and Ordoveza (25 Phil., Rep., 495), I regard as
an abrogation, a repeal of article 1508 of the Civil Code, together with those articles which depend upon
it. I dissented in the case of Rosales vs. Reyes and Ordoveza. Only one phrase of the question was
really raised, presented, or argued in that case. A further study of the question involved both in that
case and the one at bar brought the strong conviction that the decisions in this case are not wrong in a
fundamental sense but result in a destruction of the provisions of the Civil Code governing the contract
known as a sale with the right of repurchase. The question raised and argued in this case covers the
whole filed, whereas in Rosales vs. Reyes and Ordoveza only one phase was touched by the briefs of
the parties. I feel that the decision in Rosales vs. Reyes and Ordoveza should be reexamined in view
of the fact that the real questions involved were not presented or argued and, therefore, not considered
in the opinion in that case.
THE FACTS.
The plaintiff, by a written instrument, sold to the defendant certain lands, expressly reserving to himself
the right to repurchase the same at a given price, but without fixing in the instrument the period within
which the repurchase must be made. The conveyance contained a provision that the repurchase could
not be made "until after three years from his date." This document bears date March 30, 1903. The
contract become effective and went into operation on this date, the vendor receiving his money and the
purchaser his title and other rights created by the contract on that date.
This action was commenced February 17, 1910, nearly seven years after the date of the contract, to
compel the defendant to accept the sum specified in the conveyance as the repurchase price and to
deliver tot he plaintiff the premises described therein.
THE LAW APPLICABLE TO THE CASE
As the facts are admitted so, also, is the law governing the case. It is admitted by all that the first
paragraph of article 1508 of the Civil Code must rule in the decision of this case. I quote that article as
well as those proceeding and succeeding, to which it refers to which are material:
ART. 1506. The sale shall be rescinded for the same causes as all other obligations, and furthermore
for those mentioned in all preceding chapters and by conventional or legal redemption.
ART. 1507. Conventional redemption shall exist when the vendor reserves to himself the right to
recover the thing sold, binding himself to fulfill that which is stated in article 1518, and whether more
may have been stipulated.
ART. 1508. The right stated in the preceding article, in default of an express stipulation, shall last four
years to be counted from the date of the contract.
When a stipulation exists, the term shall not exceed ten years.
ART. 1509. When the vendor does not comply with the provisions of article 1518, the vendee shall
irrevocably acquire the ownership of the thing sold.
xxx xxx xxx
ART. 1518. A vendor can not exercise the right of redemption without returning to the vendee the price
of the sale, and furthermore:
1. The expenses of the contract and any other legitimate payment made on account of the sale.
2. The useful and necessary expenses incurred by the thing sold.
The court expressly holds that the period of limitation is four years and not ten. "on the ground that
there was no express agreement as to how long the right to repurchase. . . should continue." (See
opinion.)
The complaint I make against the decision is that, while it expressly holds that article 1508 is applicable,
it does not apply it, and bases the refusal to apply on a principle which destroys the article altogether.
It declares that the four- year limitation applies, but, instead of counting it " from the date of the contract,"
as expressly required by the article referred to, begins to count it three years from the date of the
contract, thus holding the life of the redemption period to be seven years instead of four.
I regard the findings and conclusions of the court not only fundamentally erroneous but preeminently
destructive in their results. This is no evident to me that I enter upon the further exposition of the case
with the embarrassment which one always feels when he attempts to demonstrate a proposition which
he regards as self-evident. The mere statement of a correct proposition is its own greatest support and
the statement of a proposition inherently bad is its most perfectly refutation. The bald statement that a
party is entitled to seven years in which to redeem when the code expressly says he shall have but four
s about all that need be said to demonstrate the unsoundness of the statement. But in order that all the
questions involved in the case as well as the result of the doctrine laid down may be carefully developed,
I proceed.
I shall first inquire what the purpose of article 1508 is. After finishing that inquiry I shall proceed to
determine how the article effects the contracts with which its deals.
Concerning this there can be no question. That s already very largely settled. We held in the case of
Yadao vs. Yadao (20 Phil. Rep., 260):
A pacto de retro is, in a certain aspect, the suspension of the title to the land involved. We are of the
opinion that it was of such a condition, with the purpose that the title to the real estate in question should
be definitely placed, it being, in the opinion of the legislature, against public policy to permit such an
uncertain condition relative to the title to real estate to continue for more than ten years.
Manresa, commenting on the article under consideration (vol. 10 p. 302), says in this connection:
Above all we should note that the question of the period within which the repurchase may be made is
unanimously considered as a question of public interest. Portalis has already observed that it is not a
good thing that the title to property should be left for any long period of time subject to indefinite
conditions of this nature. For the reason, the intention of the code is respective and limitative, and in
our opinion all doubts should be resolved having this intention in mind, as such intention is, without
doubt, in better accord with the spirit of the law.
Scaevola (vol. 23, p. 759) refers to the period of redemption created by article 1508 as the "period
within which the party must repurchase so as not to leave longer in an uncertain condition the title to
the premises." He also says:
Yet, with a ken desire for the public good, for the better interests of society and for the greater order
and development of property, every solicitous legislator can not but perceived the danger that would
lurk in redemption by leaving to the unrestricted will of the contracting parties a remedy which might in
the course of time become the means incertitude, perhaps indefinitely, and might possibly seriously
effect the orderly conveyance of property.
The illustrations Jovellanos said in his superb report on the Agrarian Law, that the appreciation of
property is always the measure of its care . . .; hence it is that the laws which protect its exclusive
utilization strengthen, while those that threaten this, lessen and weaken the affection for it; he former
stimulate individual interest and the latter discourage it; the first are favorable, the second unjust and
disastrous, to the development of agriculture." (Scaevola, Civil Code, Vol. 23, p. 749.)
A long term for redemption renders the future of property uncertain and redounds to its detriment, for
neither does the precarious holder cultivate the ground with the same interest as the owner, nor does
he properly attend to the preservation of the building, and owing to the fact that his employment of the
property is temporary, he endeavors above all to derive the greatest benefit therefrom, economizing to
the end even the most essential expenses. (Scaevola, Civil Code, vol. 23, p. 767.)
Moreover, there can be no doubt that one of the aims of those who framed the law relative to the
retroventa was to protect, as far as possible, the borrower from the machinations of usurers. The
purpose in limiting the duration of a sale of this nature was not only to preserve the stability and certainly
of ownership but also to prevent the usurer from fixing his own time the repayment of the purchase
price. While it may be true that a short terms is the joy of the money-lender, as contended by some,
that is so only in a limited sense and in an especially limited sense when related to a sale with right to
repurchase. The purchaser having the absolute right of possession up to the moment of repurchase,
very serious result would follow not only to the vendor but to society as well if he were permitted to fix,
without limitation, the date when the repurchased could be made.
Having seen what the purpose of Civil Code was in fixing periods beyond which the right to repurchase
cannot extend, whether the parties agree upon he time or not, I next proceed to ascertain how the law
impresses itself upon the contract of the parties.
Let us make the law personal and permit it to speak for itself. It says to person entering into a contract
of sale with the right to repurchase: "You yourselves may fix the time within which the repurchase may
be made; but while you may fix that period and writ it in your contract, I, the law, will myself become a
third party to the contract and write therein a provision which neither of you can evade or escape, which
is that the period cannot exceed ten years and that the ten years shall be counted from the date of the
contract. You may also, if you wish, refrain from fixing in your contract a period within which the
repurchase must be made; but do not think that, by refusing or failing to fix the period, you may thereby
let the contract run as it pleases you and permit the period to drag along indefinitely. If you do not fix
the period, I, the law, will myself become a third party to that contract and will write therein a provision
which neither of you can, by any sort of legerdemain, evade or escape, which is that the repurchase
must be made within four years, and that the said four years shall be counted from the date of the
contract."
This is what the law says, in effect, to the parties to the contract which I am discussing. Into every
contract of sale with right of repurchase the law itself writes a term. The parties themselves are not free
to contract as they will. They may be make only part of the contract. The law makes the remainder. The
parties may contract as they will in relation to those matters within their powers and may create, destroy,
alter and suspend rights and obligations as they please; but may they do the same with regard to he
terms which the law writes into their contract or the rights and obligations which it create? It would seem
not; and yet the decision of the court in this case permit precisely that. The decision lays down the
proposition and applies it to the case under discussion that, while the contract between the parties is in
full force and effect from its date, the vendor having received the purchase price and the purchaser his
title and his possession or income on and from that date, nevertheless, the parties may, at will, suspend
the force and operation of the term which the law wrote into the contract. In other words, although a
contract is in full force and effect in complete operation, the parties may suspend the law applicable
thereto. The contention that, although a contract may be perfected and in operation, the parties enjoying
their respective rights thereunder, they may permit the application to such contract of only such law as
pleases them and when it pleases them needs only to be stated to provoke its immediate rejection. Yet
this is in effect what the parties to the contract before us have done. They have made a contract to
which the four-year limitation is concededly (the court so finds expressly) applicable. The contract goes
into instant operation, the parties exercising their respective rights and assuming their respective
obligations thereunder. In spite, however, of all this, they are permitted to suspend for three years the
law applicable to the contract and to say that it shall not apply for that period; that is, they are allowed
to say, with full effect, that the four years shall not begin to run from the date of the contract, a provided
by law, but from some other which they themselves fix.
In order to arrive at this, to me, extraordinary result, the date of a contract of sale with of repurchase is
held, in effect, without significance in applying article 1508 of the Civil Code to such contract. This
holding is very serious in its result for, next to the period itself, the most important factor in such a
contract is, for the purpose before us, the date thereof. This is too evident to require words when we
note that article 1508, as we have so often seen, expressly requires that the four-yea period shall be
"counted from the date of the contract." Nevertheless, no importance seems to have been attached to
the date of the contract in the application of said article. Is the date of the contract mentioned or even
remotely referred to in the decision in this case? Yes, the date is expressly found; but not for the purpose
of fixing the time from which the four years mentioned in the law should be counted; but, rather, for the
purpose of fixing the time from who which it should not be counted. Is the date of the contract the
subject of consideration in the case of Rosales vs. Reyes and Ordoveza, referred to in the decision of
this case? Yes it was expressly found therein; but, as I understand it, no consideration was given to
that date with the object of fixing the precise time from which the four years should run. On the contrary,
whatever attention was given to the date, was given for the purpose, and the sole purpose, of fixing the
point from which the three years suspension of the right to repurchase should be counted. Nowhere, in
either case, has the court, so far as I can see, given the slightest consideration of the date of the
contracts in both cases, as the court expressly did in Rosales vs. Reyes and Ordoveza and expressly
and specially does in the case at bar, the court refuses to count the four years from the that date, as
article 1508 absolutely requires, but, instead, counts the four years from a point placed three years
after the date of the contract. It would seem that where the law requires a thing to be done within four
years from a date, the whole problem is solved when the date is found and fixed. Absolutely nothing
remains but plain addition. No question of the court, as to the suspension, or the setting forward, of the
date of the contract three years, or any other time. The court had found the date and set it out and fixed
it in this case as in the other. It has expressly found in this case over and over again that the date of
the contract in that which it bears, namely, March 30, 1903, and not March 30, 1906. The decision says:
"On March 30, 1903, a public document was executed," referring to the contract before us. The decision
quotes the contract, which contains these words: "The lands cannot be redeemed until after three years
from this date." "This date" is March 30, 1903. The court again expressly refers to the date of the
contract in the paragraph of the decision numbered two. There is absolutely no question therefore, of
suspending or setting forward the date of the contract three years, as the court has found that the
parties did not do it or attempt to do it but, instead, fixed the date which it bears as the date of the
contract. Why, then, is the four years not counted from that date instead of March 30, 1906? I find it
impossible to explain this satisfactorily to myself. The court itself seems to give no explanation either in
this case or in Rosales vs. Reyes and Ordoveza. The only thing we find in this connection is in the letter
case where the court says: "In all such cases it would seem that the vendor should be allowed four
years from the expiration of the time within which the right to redeem could not be exercised . . . ." This
is not an explanation of the action of the court, as understand it. it refer to no law, cites no article of the
Civil Code, but simply states that this is what "should be allowed." The point, it seems to me, is what
does the law says? Does article 1508 provide that the four years shall be counted "from the expiration
of the time within which the right the four years "shall be counted from the date of the contract?" Whence
comes the authority to count the four years "from the expiration of the time within which the right to
redeem could not be exercised," as something that "should be allowed" except what the law allows? It
seems to have the same fundamental misapprehension as appears in the question propounded in the
same decision: "In such case the question arises, Upon what basis must the duration of the right to
repurchase be calculated?" What other basis can there be to calculate the "duration of the right to
repurchase" except the basis fixed by the law? Why look afield for a "basis" when the law puts it under
the very nose? The law says it is "the date of the contract," as plainly as words can speak. The "time
within which the right to redeem could not be exercised" has, as I view it, nothing to do with the
application of the four-year period under article 1508. It does not recognize any time or period during
which the redemption can not be made; but the precise contrary; it recognizes only a period in which it
can be made. I cannot see how one can be substituted for the other when they see exact opposites. If
the four years must be counted from the date of the contract, and the parties to the contract have fixed
the date, and the court by solemn declaration has also fixed the date, how can it be conceived that the
four years can be counted from a different date?
What I regard as the fallacy of the reasoning employed is demonstrated by the following syllogism both
premises of which are actual findings of the court, and the conclusion precisely its conclusion:
First premises: Article 1508 provides that the four years shall be "counted from the date of the contract."
Second premises: The "date of the contract" is March 30, 1903.
The conclusion: Therefor, the four years must be counted from March 30, 1906.
As I have said before, no explanation is given for this. The mere declaration that the four years shall be
counted "from the expiration of the time within which the right to redeem could not be exercised" is, it
seems to me, no explanation. It merely accentuates the irremediable quality of the syllogism.
From these remarks it is clear, to my mind, that in this decision the court holds that the date of the
contract is without significance in applying article 1508 to a sale with a right to repurchase. Although in
both of the cases under discussion, the one at bar and Rosales vs. Reyes and Ordoveza, the court
found and fixed the date of the contract, it apparently held that date to be of no importance in connection
with the express wording of article 1508, disregarded it, and proceeded to count the four years from a
different date.
Nor can it be urged in palliation or explanation of the apparent failure to apply the law, after having
expressly found all the grounds necessary for its application, that it must be presumed that it was
intended to hold that the date of the contract was fixed by parties, implied at least, as of the time when
the three-year suspension terminated; and that, the true date of the contract being March 10, 1906,
instead of 1903, the four years should be counted from that date. Such a suggestion cannot be
accepted. The date of a contract is fixed by law in certain cases and for certain purposes and the parties
cannot alter or change it. Manresa (vol. 10, p. 303) says that "the phrase 'date of the contract' must not
always be taken literally. The date o the contract is the date from which that contract begins to produced
its natural effects." That is, "the date which fixes the moment of the consummation of the purchaser,
the moment when the vendor is divested of his rights and receives the price that was in such event
stipulated." Scaevola (vol. 23, pp. 769, 770) says:
(A) Computation of the periods. — In the solution of problems of computation, the essential datum is
the starting point, and this the code furnishes us with unsurpassable clearness. The right to recover the
thing sold, with the resultant obligations to restore and immediately, lasts four years, or the time agreed
upon, provided it does not exceed ten years, counted from the date of the contract. This definiteness
with which the legislator has fixed the commencement of the period implicitly carries in itself the
determination of the point discussed by jurists but which is no longer of moment. May the condition of
repurchase be stipulated through a consideration distinct from that of purchase and sale? We find the
answer in article 1508: If, in computing the time, its commencement must necessarily run from the date
of the contract, and it is understood that of sale is alluded to, then the covenant of repurchase must be
consubstantial with the contract, implying a condition of the same, and both the conveyance and the
condition subsequent are governed by one single consent. The subsequent agreement might be a new
contract equivalent to a promise of sale, but to produces a personal, not a real, action; it does not
convert the original indefeasible contract into one revocable by its nature. Legal redemption is
connascent with the contract of purchase and sale; they both came into judicial life in the same birth.
While, as Manresa says, the contract may not be of the precise date which the instrument actually
bears, the real date can not be later than the time when the contract actually takes effect, that is, the
time when the parties obtain their rights and assume their obligations under it. Parties who, on a
particular day, accepted the mutual between them, in other words, put the contract into operation,
cannot be heard to say that the date was not the real date of the contract and that the true date was
three years thence. This is especially so in respect of contracts which, from the nature of the subject
matter and form of the covenants, take on a public aspect and as to which laws have been specially
passed for the protection of the public interests.
Therefore, the purpose of article 1508 being , as we have already shown, to prevent the contract dealt
with therein from unsettling the title to the real estate which is the subject matter thereof for periods
beyond those provided for in that section, no person will be permitted, on my sort of pretense, to
produce the result by said section sought to be avoided; and especially not by a method so wholly
without foundation or merits as that of claiming that the true date of a contract is not that on which the
contract goes into full operation but such as the parties may e pleased to fix. When contracts operate,
the law applicable to them operates. The proposition that persons may make and enjoy the benefits of
contracts and still prevent the law operating upon them is one that would, if adhered to, result of the
decision in this case is to lay down precisely this proposition. The court says that, while the contract
took effect and went into full operation on the 30th of March, 1903, article 1508 of the Civil Code did
not begin to operate upon it till the 30th of March, 1906; and why? Simply because, the court seems to
say, the parties agreed to suspend the tax until that time. This would seem to be erroneous when
confronted with the proposition that the law held to be suspended was one in the interest of the public
as well as the parties, May contracts suspend laws of this nature?
Moreover, the contention that the parties suspended the contract, to its date, fails, in my judgment, to
perceive the distinction between the suspension of the operation of a contract and the suspension of
the law which governs the contract. As I have already noted, parties to contracts, after they are
executed, may suspend their operation until such time as they please. In such case they take no present
benefits and incur no present obligations under the contract. No present rights or interests are
transmitted. It is executed and laid away and nothing is done under it still the date to which its operation
was suspended. This is a suspension of the operation of the contract, of the date, if you please. Such
a procedure is recognized a legal. But nothing of this was done in the case before us. The contract took
effect at once. It is the law applicable thereto which was suspended.
As I have already intimated, the doctrine that the parties may, at will, suspend the operation of the
statute and thereby destroy the force and effect of the four-year limitation is fatal to the efficacy of the
law governing sales with right to repurchase. In effect, it repeals it. it is clear, they if the parties may
suspend the law for three years, they may suspend it for ten years, or twenty years, or fifty years, or for
any period that pleases them. This, of course, makes the law a farce and destroys its value completely.
It appears that the court in the decision under discussion foresaw, to some extent at least, the fatal
results which would follow such a doctrine and apparently sought to avoid, in part, the evil results
thereof. To accomplish this it brought into requisition the ten-year limitation found in the same article of
the code, and declared that, although the four-year period was applicable to the contract at its origin,
the ten-year period also was applicable thereto; so, that although persons may suspend the operation
of the ten-year limitation, they may not do so to such an extent that the period of suspension added to
the four years will exceed ten years. The germ of this strange theory is found in this expression of the
court:
In such a case the question arises: Upon what basis must the duration of the right to repurchase be
calculated? Any such contract must necessarily be terminated ten years from the date of its execution,
but should the vendor have the privilege to exercise this right for the balance of the ten years, or should
he be allowed only four years on the ground that there was no express agreement of the parties upon
this point? In all such cases it would seem that the vendor should be allowed four years from the
expiration of the time within which the right to redeem could not be exercised, or in the event that four
years would extend the life of the contract beyond ten years, the balance of the ten-year period, on the
ground that vendors, where the right to redeem is not thus suspended and no express agreement as
to the length of time during which it may be exercised is made, are also allowed four years.
The error into which the court appears to me to have fallen in making this suggestion is plain. It is held
by virtue of this suggestion, that the four-year period and the ten- year period apply to the same contract.
This appears to me to be an impossibility on its face, impossible by virtue of language itself. When it
made the suggestion by virtue of the court was engaged in interpreting a contract which, by its express
holding, was such a contract in form and nature that the four-year period and not the ten-year period
applied to it. That the four-year period was applicable the court expressly holds. This holding was
arrived at by selecting between the four and ten-year period. The very first thing the court to do in
interpreting the contract was to determine which period was applicable, the four o the ten. It held hat
the four-year period was applicable. That necessarily held that ten-year period was not. Where it is
necessary to make a choice between two periods of limitation, the selection of the one is necessarily
the rejection of the other. Therefore, when the court made the suggestion that the ten-year period was
also applicable, it had already held that it was not. This, in itself, it seems to me, is a complete refutation
of the suggestion; or, perhaps better said, the suggestion is incomplete contradiction of the previous
action of the court when it held that the four and not the ten-year period was applicable.
If anything further were needed to show the fallacy of the proposition involved in this suggestion that
both periods are applicable to the same court, the question might be put: What is the reason that the
court decided that the four- year period was applicable instead of the ten-year period?
The answer to that question completely impossible the theory now under discussion and show how
impossible it is to sustain it. Whether the four-year period or the ten-year period applies to a given
contract depends upon the nature of that contract. The four-year period applies to a contract, not by
virtue of the time which it is to run, but by virtue of the nature thereof. The test as to whether the four-
year period applies is: Did the parties expressly stipulated in their contract a period within which the
repurchase might be made? If they did not, the four-year period is applicable. That is the decisive
feature which determines whether the four-year or ten-year period is applicable. If the parties did
expressly stipulated the time within which the repurchase might be made, then the ten-year period
applies. It is thus clear that the conditions which determine in favor of the application of the four-year
period are precisely the opposite of those which determine in favor of the ten-year period. In other
words, if the conditions are such that the four-year period is applicable, then they are such as to render
it impossible that the ten-year period be applicable; and we behold a condition in which it is utterly
impossible, legally or logically, that both periods of limitation be applicable to the same contract. In spite
of this, however, it is contended by the decision that, although it is conceded that the parties did not
expressly stipulated the time within which the repurchase might be made and that, therefore, the four-
year period was applicable, nevertheless, the ten-year period was also applicable. This is impossible
in the face of the fact that the court at to the threshold of the inquiry expressly held that the ten-year
limitation had no application; and the reasons given why the ten-year period has a no limitation did
apply. The only reasons given, so far as I can gather, for applying both periods to the same contract is
to prevent the first error, namely permitting the parties to suspend the operation of the four-year
limitation, from destroying the efficacy of the law altogether. For, if the parties may suspend the
operation of the law at will, then not only is the four-year restriction rendered worthless but the ten-year
limitation also. To avoid this result, the decision committed the other error of applying both limitations
to the same sale. But the error committed in saying that 2 and 2 make 5 cannot be corrected by holding
thereafter than 2 and 3 make 4.
Besides the error of applying to the same contract two periods of limitation which depend upon precisely
opposite conditions, the court, in my humble opinion, has also committed the further error of
confounding the nature of the two limitations. The four-year limitation is really a limitation. Where the
parties say nothing about the time for redemption, then the law imposes a limitation as to the time. On
the other hand, the provision which contains the ten-year limitation does not create a limitation on the
contract, as does the first. It simply places a limitation upon the power of the parties as to their
stipulations. It provides that they may not contract for a longer period of redemption than ten-years. It
is not, therefore, a statute of limitations, nor does it have the significance, force or effect thereof. The
ten-year limitation prohibits an act. The four-year period limits the life of the contract. The ten-year
limitation applies to the acts of the parties. The four-year limitation applies to the contract after it is
executed. The one is a limitation. The other is a prohibition. This decision is not made in the decision ;
and, taken together with the fact that the two period of limitation depend for their existence and limitation
upon exactly opposite conditions, we see clearly the error committed applying both limitations to the
same contract. The statute had in mind the covering of two radically different conditions, one with a
limitation and the other with a prohibition. The court, by its decision, destroyed the limitation and made
the prohibition cover both conditions.
That the decision has destroyed one limitation and made the order applicable to both conditions
specified in the code is clear, for, if the parties may suspend the operation of the four-year period for
six years and then, in accordance with the holding of the court, may add the four-year period to that,
they have taken advantage of a ten-year period without fulfilling the conditions which the laws requires
before they have a right to do so. It has already been held by this court that the limitations specified in
article 1508 cannot be enlarged, as they refer to matters of public concern; and any method which
extends these limitations, or either of them, beyond the periods named in the law trenches on the public
welfare and destroys to that extent the value of the provisions designed to preserve and protect it.
Therefore, it is a matter of public concern that the parties who refused to put in their contract the period
during which they desired the right of repurchase to continue, should be restricted in such right to the
period which the law names, namely, four years; whereas, if the parties are willing to state the period
during which the right of repurchase shall run, law gives them the right to stipulate a more generous
period, namely, ten years. In other words, the law, if we so speak, places a premium upon the open
and clear expression of the time by giving the parties a ten-year privilege as against the grant of only
four years where the parties refuse to be clear and definite. It is the policy of the law to destroy
uncertainties in contracts of this character, and where the uncertainty is the greatest the law restricts
the period most. Where the uncertainty is least, the law restricts the period less. The decision puts
parties who do not expressly stipulate the period of redemption in exactly the same position as those
who do stipulate, and gives them exactly the same privileges. In other words, under the holding of the
court, the parties, although they have not expressly stipulated the term of redemption in there contact,
may, nevertheless, by the legerdemain of suspending the operation of the statutory period for
repurchase, obtain exactly the same period for their contract as the parties to another contract who
have expressly stipulated the period. This wipes out the division or classification made in the law,
destroys the difference between the parties who act openly and those who do not and gives the same
privileges to both.
There is another and fundamental reason why the decision of the court is erroneously; and that s that
the suspension of the application of the four-year limitation destroys the essential element and charges
the distinctive character of the sale with a right to repurchase, as it is known to the Spanish law, and
coverts the contract into one of mere loan on security. One of the essential requisites of the contract of
sale with pacto de retro is the right of the vendor to repurchase when he will. The code itself speaks in
no other way of the period of repurchase than to declare that the repurchase may be made within the
period specified. It is not like a promissory note or mortgage, under which the indebtedness therein
mentioned or secured must be paid on the date named. The contract under discussion provides always,
and no other description of it is given by any statute or other, that the repurchase may be made within
a given time. This means, of course, that the time when the repurchase is made is left to the will of the
vendor. He can repurchase on any one of the days which constitute the period agreed upon or fixed by
the statute.
This theory corresponds perfectly with the history of the contract. It originated, so far its Spanish history
is concerned, in the Province of Catalonia and was devised to assist landholders in cultivating heir land.
A landholders, not having sufficient funds with which to properly cultivate his various parcels, would
obtain a loan, selling, as security for the loan, one of the parcels, reserving the right to repurchase the
same. The time within which the borrower could make the repurchase was generally not known. It if
depended either upon the time when he could sell the crop which he, perhaps at the time, had in the
warehouse, or upon the time when he could harvest and market the crops for the cultivation and
harvesting of which the money was borrowed. This being so, the precise time for repurchase could not,
as a general rule, be fixed. The borrower could not say that he would repay it six months, or nine
months, or a year from date, or at any other specific time. It depended on when the crop was ripened
and ready for harvest and when it could be marketed thereafter. These things were, in turn, dependent
upon so many uncertainties that it became the custom to leave the time during which the repurchase
could be made entirely to the will of the vendor. So thoroughly was this understood that the contract in
Catalonia was called a venta a carta de gracias. This special and distinctive feature was carried into
Civil Code and, as we have seen, it is provided that the right to repurchase shall continue (durara) for
four years, during any one of the days constituting which the repurchase can be made. Every author
who treats the subject uses, with reference to the period of redemption, the words "dentro," within,
indicating that the right may be exercised at any time within the period named. The fact is that the right
to repurchase at any moment is such an essential part of a sale with a right to repurchase that its
existence is taken for granted by all the authors dealing with the subject. I have found none who directly
discuss the question; but all of them go upon assumptions which sustain the proposition I am
presenting.
If my contention be sustainable, then the purchaser, if he intends to create a sale right of repurchase,
has no right to prohibit the vendor a privilege which the law confers upon him and makes use of it for
the enrichment of the purchaser. It is generally stated by Spanish authors dealing with the subject that
the purchaser cannot, by stipulation in the contract, compel the vendor to repurchase; and that if such
a stipulation is placed in the contract, it changes its essential nature and transforms it into a mere
contract of loan on security, something in the nature of a pledge of real estate. Scaevola (vol. 23, p.
764) says:
If the stipulation were such as to oblige the vendor to avail himself of his right of repurchase, the judicial
institution or organism thus created would be a different thing from a sale with a right of repurchase,
the nature of which does not allow that a covenant introduced for the benefit of the vendor may be
converted into an instrument against him of which the purchaser may make exclusive use.
If this is true, and I regard the provision stated by Scaevola as universally accepted, then why should
not the same result follow where the purchaser prohibits the vendor from repurchasing for a given time?
Certainly the prohibition against the repurchaser is far more injurious to the vendor and beneficial to
the purchaser than the requirement that he must repurchase. The obligation to repurchase is not
necessarily a severe one, whereas the prohibition against repurchase for six years, for example, may
be a very severe blow to the vendor's interests. Not only that, but it enables the lender to obtain by
means of this contract, which the law designed primarily for the benefit of the vendor, not only all of the
privileges which inure to him by virtue thereof, but also the additional advantage which inheres in
mortgage, or, a long period during which he may draw interest or have complete possession and control
of the property purchased.
In this addition it must not be forgotten that, on the execution of a sale with a right of repurchase, the
purchaser has the right of immediate possession. Now, if he be permitted, by stipulation in the contract,
to prohibit the vendor from repurchasing for six years, then he not only obtains the title to the property
itself as security for repayment, but he also deprives the vendor of the possession of his property for
an extremely long period. This is one of the precise things that the Civil Code sought to prevent. As a
necessary consequence, the decision of the court, that a sale with a right of repurchase is permissible
which prohibits the vendor from repurchasing for six years, appears to me to be in direct violation of
the spirit which permitted the code, and results in delivering the borrower into the power of the lender,
from whose hands it was the intention and purpose of the Civil Code to rescue him. It is no reply to my
argument to urge that the code permits parties to stipulate a ten-year period, for, under such stipulation
the vendor may repurchase at any time he pleases during the ten years.
The decision says: "But if it were held that, regardless of such a provision, the redemption right expires
within four years from the date of the contract unless there is a special provision as to how long this
right, once effective, shall continue, many other perfectly valid contract can be conceived For instance,
if the stipulation in question had provided that the right to redeem should not be exercised within five
years from the date of the contract, it is quite apparent that, according to the argument adduced by the
defendants, the vendor could not have redeemed the property at all, for the right to do so would have
expired one year previously."
This portion of the decision merely assumes that a stipulation suspending the application of the four-
year period for five years is valid. This is unquestionably true; but it misses the whole question at issue
when viewed from the standpoint from which I am now discussing it. The point is, does such a stipulation
destroy the nature of the relation between the parties; that is, does it destroy the contract as a sale with
a right of repurchase, and transform it into another and entirely different contract? No one contends
that such a stipulation is valid; the sole contention is that it is not valid, proper, or permissible stipulation
in a sale with a right to repurchase and that it destroys the essential nature of the contract and
transforms it in to something entirely different. The proposition I am presenting is that such a stipulation
converts the sale with right of repurchase, as the Code knows it, into a mere relation of borrower and
lender, thereby destroying completely the relation of vendor and vendee; and that none of the provisions
of the Civil Code relating to such a sale are applicable. Such a stipulation may be valid and its presence
may not render the agreement void in the general sense; but it does render the contract void as a sale
with right of repurchase. This is the point. The decision assumes that the parties, in a contract of sale
with a right of repurchase, may do whatever they please and the contract still remains a sale with a
right of repurchase. The contention that I am making is that such a contract is of a highly special nature,
in many of its aspects strictly statutory, and that, when certain of its elements are destroyed, it ceases
to be such a contract and becomes something different; that when such a contract provides that the
vendor must repurchase, that stipulation changes the nature of the contract and transforms it into
something different, and that where it stipulates that the vendor shall not repurchase, that stipulation
also changes the nature of the contract and converts it into a different species of relation. To repeat,
then: A stipulation in a contract of sale with a right to repurchase that the vendor shall not repurchase
during a period of years is a stipulation in violation of the essential nature of the contract, which deprives
the vendor for the protection which the statute gives him, which places him in the power of the lender
from which it was the intention of the law to rescue him, and transforms and converts it into one of loan
on security which is governed by principles wholly different from those that govern the sale with pacto
de retro.

Torres vs CA, 131 SCRA 24 (1984), GR L37420

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. L-37420 July 31, 1984
MACARIA A. TORRES, petitioner,
vs.
COURT OF APPEALS, VICENTE SANTILLAN, ALFREDO NARCISO, TOMAS NARCISO, AMADO
NARCISO, SALUD NARCISO, DEMETRIA NARCISO and ADELINA NARCISO, respondents.
G.R. No. L-37421 July 31, 1984
MACARIA A. TORRES, petitioner,
vs.
COURT OF APPEALS, VICENTE SANTILLAN, ALFREDO NARCISO, SALUD NARCISO,
BALDOMERO BUENAVENTURA, DEMETRIA NARCISO, LEONARDO QUINTO, ADELINA
NARCISO, CESARIO PUNZALAN, TOMAS NARCISO and AMADO NARCISO, respondents.
Juan R. Liwag for petitioner.
Cesar Nocon for respondents.

MELENCIO-HERRERA, J.:
This Petition for Review on Certiorari, treated as a special civil action. 1 prays that the judgment
rendered by the then Court of Appeals in the consolidated cases, CA-G.R. NO. 34998-R entitled
"Macaria A. Torres, plaintiff-appellee vs. Vicente Santillan, et al., defendants-appellants", and CA-G.R.
No. 34999-R entitled "Vicente Santillan, et al., plaintiffs-appellants vs. Macaria A. Bautista, et al.,
defendants-appellees and the Resolution denying the Motion for Reconsideration and Petition for New
Trial, be set aside; and that, instead, The Order of the Court of First Instance of August 7, 1963 be
affirmed, or, in the alternative, that the case be remanded to it for new trial.
Involved in this controversy are the respective claims of petitioner and private respondents over Lot No.
551 of the Sta. Cruz de Malabon Estate (part of the friar lands) in Tanza, Cavite, with an area of
approximately 1,622 square meters. covered by Transfer Certificate of Title No. T-6804 issued in the
name of the legal heirs of Margarita Torres.
The facts of the case cover three generations. The propositus, Margarita Torres, during the Spanish
regime, was married to Claro Santillan. Vicente and Antonina were begotten of this union. Claro died
leaving Margarita a widow. Antonina married and had six children, namely: Alfredo, Salud (married to
Baldomero Buenaventura), Demetria (married to Leonardo Quinto), Adelina (married to Cesario
Punzalan), Tomas and Amado all surnamed Narciso, who, together with Vicente Santillan, are the
private respondents. Antonina died before the institution of the cases while Vicente died on June 4,
1957, 2 during the pendency of the cases in the Trial Courts, without progeny .
After the death of her husband, Margarita Torres cohabited with Leon Arvisu Arbole, without benefit of
marriage. Out of their cohabitation, petitioner Macaria Torres (later married to Francisco Bautista) was
born on June 20, 1898, and baptized on June 26, 1898. In a Certificate of Baptism issued by the Parish
Priest of Tanza, Cavite, Leon Arvisu Arbole and Margarita Torres were named as father and mother of
petitioner whose name was listed as Macaria Arvisu", (Exhibit "C" Another Baptismal Certificate,
however, listed her name as Macaria Torres, while her father's name was left blank (Exhibit "4").
Subsequently, or on June 7, 1909, Leon Arbole and Margarita Torres were married (Exhibit "A").
Petitioner lived with and was reared by her parents. Margarita, the mother, died on December 20, 1931
(Exhibit "D"), while Leon, the father, passed away on September 14, 1933 (Exhibit " E ").
Lot No. 551, an urban lot with an area of 1,622 sq. ms., more or less, had been leased temporarily by
the Government (Lease No. 17) to Margarita Torres who was the actual occupant of the lot. The date
of the lease cannot be determined with exactitude from the records. On December 13, 1910, the
Government, through the Director of Lands, issued to Margarita Torres, Sale Certificate No. 222 (Exhibit
"B") over the said lot at the price of P428.80, payable in 20 annual installments of P20.00 each. The
rental/s previously paid of P17.40 was credited to the purchase price. Testimonial evidence is to the
effect that Leon Arbole paid the installments out of his earnings as a water tender at the Bureau of
Lands, Tanza, Cavite. The last installment, however, was paid on December 17, 1936, or three (3)
years after his death.
On August 25, 1933, twenty (20) days before his death, Leon Arbole sold and transferred in a notarial
deed all his rights and interest to the one-half (1/2) portion of Lot No. 551 in favor of petitioner, for the
sum of P300.00.3
On June 6, 1953, Vicente Santillan executed an Affidavit claiming possession of Lot No. 551 and asking
for the issuance of title in his name, which he filed with the Bureau of Lands. Based thereon, the Bureau
of Lands issued the corresponding patent in the name of the legal heirs of Margarita Torres. Transfer
Certificate of Title No. T-6804 was eventually issued by the Register of Deeds of Cavite on November
7, 1957, also in the name of said heirs.
On June 3, 1954, private respondents filed a complaint against petitioner for Forcible Entry, with the
Justice of the Peace Court of Tanza, Cavite, alleging that petitioner had entered a portion of Lot No.
551 without their consent, constructed a house. and refused to vacate upon demand. For her part,
petitioner claimed that she is a co-owner of the lot in question, being one of the daughters of Margarita
Torres. The ejectment case was decided against petitioner and the latter appealed to the then Court of
First Instance of Cavite, where it was docketed as Civil Case No. 5547 (Ejectment Case).
On June 8, 1954, petitioner instituted an action for partition of Lot No. 551 before the then Court of First
Instance of Cavite, docketed as Civil Case No. 5505 (Partition Case), alleging that said lot was conjugal
property of the spouses Margarita Torres and Leon Arbole, and that she is their legitimated child.
Private respondents filed an Answer alleging that the lot belonged exclusively to Margarita Torres; that
they are her only heirs, and that the complaint for partition should be dismissed.
The Ejectment Case and the Partition Case were jointly tried and decided on November 20, 1958 with
a finding that Lot No. 551 is the paraphernal property of Margarita Torres and adjudicating to private
respondents two-thirds (2/3) of the property in equal shares, and to petitioner a one-third (1/3) portion.
4 Petitioner moved for reconsideration, which private respondents opposed. Pending its resolution, the

Provincial Capitol of Cavite was burned, resulting in the complete destruction of the records of the two
cases, which, however, were later partially reconstituted.
On August 7, 1963, the then Court of First Instance of Cavite, Branch 1, issued an Order granting
reconsideration and amending the Decision of November 20, 1958. The positive portion thereof reads
as follows:
Wherefore, judgment is hereby rendered in Civil Case No. .5505:
(1) Declaring Macaria A. Torres as the legitimated child of the spouses Leon Arbole and Margarita
Torres;
(2) Declaring that Lot No. 551 of the Sta. Cruz de Malabon Estate is a conjugal partnership property of
the spouses Leon Arbole and Margarita Torres;
(3) Adjudicating four-sixths (4/6th of Lot No. 551 of S.C. de Malabon Estate to Macaria Torres, and two-
sixths (2/6th) in equal shares to Alfredo, Tomas, Amado, Salud, Demetria and Adelina, all surnamed
Narciso, legitimate children and heirs of the deceased Antonina Santillan, since Vicente Santillan is
already dead. The parties may make the partition among themselves by proper instruments of
conveyance, subject to confirmation by the Court. In fairness, however, to the parties, each party should
be alloted that portion of the lot where his or her house has been constructed, as far as this is possible.
In case the parties are unable to agree upon the partition, the Court shall appoint three commissioners
to make the partition.
As to Civil Case No. 5547, the same is hereby dismissed.
Without costs in both cases. 5
In concluding that petitioner is a legitimated child, the Trial Court opined:
It is undisputed that when Macaria A. Torres was born on June 20, 1898, her parents, Leon Arbole and
Margarita Torres, had the capacity to marry each other. There was no legal impediment for them to
marry It has also been established that Macaria A. Torres had been taken care of, brought up and
reared by her parents until they died. The certificate of baptism (Exh. "G") also shows that Macaria
Torres was given the family name of Arvisu, which is also the family name of her father, Leon Arbole,
and that her father is Leon Arvisu and her mother is Margarita Torres. Such being the case, Macaria A.
Torres possessed the status of an acknowledged natural child. And when her parents were married on
June 7, 1909, she became the legitimated daughter of on Arbole and Margarita Torres. 6
Private respondents appealed. On April 2, 1973, the then Court of Appeals 7 rendered the judgment
sought to be set aside herein, the decretal part of which states:
Wherefore, judgment is hereby rendered in Civil Case No. 5505:
(1) Declaring that Macaria A. Torres is not the legitimated child of the spouses Leon Arbole and
Margarita Torres;
(2) Declaring that Lot No. 551 of the Sta Cruz de Malabon Estate is a conjugal partnership property of
the spouses Leon Arbole and Margarita Torres; and
(3) Adjudicating one-half (1/2) of Lot No. 551 of S.C. de Malabon Estate to Macaria Torres, and the
other half (1/2) in equal shares to Alfredo, Tomas, Amado, Salud, Demetria and Adelina, an surnamed
Narciso, legitimate children and heirs of Antonina Santillan, since Vicente Santillan is already dead.
The parties may make the partition among themselves by proper instruments of conveyance, subject
to confirmation by the Court. In fairness, however, to the parties, each party should be alloted that
portion of the lot where his or her house has been constructed, as far as this is possible. In case the
parties are unable to agree upon the partition, the Court shall appoint three commissioners to make the
partition.
As to Civil Case No. 5547, the same is hereby dismissed.
Without costs in both cases. 8
The Appellate Court was of the opinion that:
Macaria A. Torres is not a legitimated daughter of Leon Arvisu Arbole and Margarita Torres, the former
not having been legally acknowledged before or after the marriage of her parents. As correctly pointed
out by the appellants in their brief, the fact that she was taken cared of, brought up and reared by her
parents until they died, and that the certificate of baptism (Exhibit "C") shows that she was given the
family name of Arvisu did not bestow upon her the status of an acknowledged natural child.
Under Article 121 of the old Civil Code, the governing law on the matter, children shall be considered
legitimated by subsequent marriage only when they have been acknowledged by the parents before or
after the celebration thereof, and Article 131 of the same code provides that the acknowledgement of
a natural child must be in the record of birth, in a will or in some public document. Article 131 then
prescribed the form in which the acknowledgment of a natural child should be made. The certificate of
baptism of Macaria A. Torres (Exhibit "C") is not the record of birth referred to in Article 131. This article
of the old Civil Code 'requires that unless the acknowledgement is made in a will or other public
document, it must be made in the record of birth, or in other words, in the civil register (Samson vs.
Corrales Tan, 48 PhiL 406). 9
A Motion for Reconsideration and for New Trial, dated April 16, 1973, was filed by petitioner. In support
thereof, petitioner submitted a typewritten Sworn Statement, dated March 5, 1930, of spouses Leon
Arvisu (Arbole) and Margarita Torres,10 reading in full as follows:
SWORN STATEMENT
We, Leon Arvisu and Margarita Torres husband and wife respectively, of majority age, and residents
of the Municipality of Tanza, Province of Cavite, P.I., after being duly sworn to according to law depose
and say
That Macaria de Torres is our legitimized daughter she being born out of wedlock on the 26 th of June
1898 all Tanza, Cavite, but as stated she was legitimized by our subsequent marriage.
That at the time of her birth or conception, we, her parents could have married without dispensation
had we desired.
That as natural child our aforesaid daughter was surnamed de Torres after that of her mother's at the
time she was baptized as per record on file in the Church.
That as a legitimized daughter she should now be surnamed Arvisu after her father's family name.
Wherefore, it is respectfully requested to anybody concerned that proper remedy be made for the
change of the surname of said Macaria de Torres as desired.
In testimony hereof, we hereunto signed out names at Tanza, Cavite, this 5th day of March 1930.

(Thumbmarked) (Thumbmarked)
LEON ARVISU MARGARITA TORRES
Signed in the prsence of:
(Sgd.) Illegible (Sgd.) Macaria Bautista
x----------------------------------------------------x
UNITED STATES OF AMERICA )
PHILIPPINE ISLANDS )
MUNICIPALITY OF TANZA ) ss
PROVINCE OF CAVITE )
Subscribed and sworn to before me this 5th day of March 1930. The affiant Leon Arvisu exhibited to
me no cedula certificate being exempt on account of going over 60 years of age and Margarita Torres
having exhibited no cedula certificate being exempt on account of her sex.
Witness my hand and seal of office on the date and place aforesaid.
CONSTANCIO T. VELASCO
Notary Public, Cavite Province
Until Dec. 31, 1930.
Not. Reg. No. 56
P. No. 2
Book No. III Series of 1930. 11
The reason given for the non-production of the notarial document during trial was that the same was
only found by petitioner's daughter, Nemensia A. Bautista, among the personal belongings of private
respondent, Vicente Santillan, an adverse party, after his death and who may have attempted to
suppress it. Private respondents, for their part, argued against new trial, and contended that it is not
newly discovered evidence which could not have been produced during the trial by the exercise of due
diligence.
The Decision of the Appellate Court was rendered by a Division of three, composed of Justices Jesus
Y. Perez, Jose N. Leuterio and Luis B. Reyes, ponente. When the Motion for Reconsideration and New
Trial was considered, there was disagreement, possibly as to whether or not new trial should be granted
in respect of the sworn statement of March 5, 1930. A Special Division of five was then formed,
composed of Justices Antonio Lucero Magno S. Gatmaitan, Lourdes P. San Diego, Jose N. Leuterio
and Luis B. Reyes (Justice Perez having retired or having disqualified himself). In a minute resolution
of August 24, 1973, the Division of five, by a vote of three or two, denied both reconsideration and new
trial.
To warrant review, petitioner, has summarized her submission based on two assignments of error. The
first was expressed as follows:
Although the Court of Appeals is correct in declaring that Macaria A. Torres is not the legitimated child
of the spouses Leon Arbole and Margarita Torres, it has overlooked to include in its findings of facts
the admission made by Vicente Santillan and the heirs of Antonina Santillan (herein respondents) that
Macaria A. Torres and Vicente Santillan and Antonina Santillan are brother and sisters with a common
mother Margarita Torres and they are the legal heirs and nearest of relatives of Margarita Torres, and
as a consequence thereof, the Court of Appeals had drawn an incorrect conclusion in adjudicating the
entire share of Margarita Torres in the conjugal property solely to Vicente Santillan and the heirs of
Antonina Santillan. (emphasis supplied)
As we understand it, petitioner has conceded, with which we concur, that, without taking account of the
sworn statement of March 5, 1930, she cannot be considered a legitimated child of her parents.
Continuous possession of the status of a natural child, fact of delivery by the mother, etc. will not amount
to automatic recognition, but an action for compulsory recognition is still necessary, which action may
be commenced only during the lifetime of the putative parents, subject to certain exceptions. 12
The admission adverted to appears in paragraph 3 of private respondents' original complaint in the
Ejectment Case reading:
the plaintiffs and the defendant Macaria A. Bautista are the legal heirs and nearest of kins of Margarita
Torres, who died in Tanza, Cavite on December 20, 1931. (Emphasis supplied).
The statement, according to petitioner, is an admission of her legitimation and is controlling in the
determination of her participation in the disputed property.
We are not persuaded. In the Amended Complaint filed by private respondents in the same Ejectment
Case, the underlined portion was deleted so that the statement simply read:
That the plaintiffs are the legal heirs and nearest of kin of Margarita Torres, who died at Tanza, Cavite,
on December 20, 1931.
In virtue thereof, the Amended Complaint takes the place of the original. The latter is regarded as
abandoned and ceases to perform any further function as a pleading. The original complaint no longer
forms part of the record. 13
If petitioner had desired to utilize the original complaint she should have offered it in evidence. Having
been amended, the original complaint lost its character as a judicial admission, which would have
required no proof, and became merely an extrajudicial admission, the admissibility of which, as
evidence, required its formal offer. Contrary to petitioner's submission, therefore there can be no
estoppel by extrajudicial admission made in the original complaint, for failure to offer it in evidence. 14
It should be noted that in the Partition Case private respondents, in their Answer (parag. 4), denied the
legitimacy of petitioner.
The second error attributed to the Appellate Court has been pleaded as follows:
Also, the Court of Appeals has gravely abused its discretion when it denied the petition for new trial,
knowing as it does that the judgment is clearly erroneous in view of the evidence which is offered and
no amount of diligence on the part of the petitioner could it be produced in court at any time before it
was offered as it was found from the personal belongings of Vicente Santillan, an adverse party, after
his death.
It is our considered opinion that new trial was warranted to prevent a possible miscarriage of justice.
Assuming that the genuineness and due execution of the Sworn Statement of March 5, 1930 is
established in accordance with procedural due process, a new trial would resolve such vital
considerations as (1) whether or not said Sworn Statement qualifies as the public document prescribed
in Article 131 of the old Civil Code; 15 (2) whether or not it conforms to an act of acknowledgment by
the parents after the celebration of their marriage as required by Article 121 of the same code; 16 and
(3) whether or not petitioner's signature as a witness to said document was the equivalent of the consent
necessary for acknowledgment of an adult person under Article 133 of that Code. 17 Affirmative
answers would confer upon petitioner the status of a legitimated child of her parents, and would entitle
her to enjoy hereditary rights to her mother's estate.
Private respondents stress that since petitioner signed as a witness to the document she should be
chargeable with knowledge of its existence, and, therefore, the Sworn Statement was not newly
discovered evidence. In our view, the document can reasonably qualify as newly discovered evidence,
which could not have been produced during the trial even with the exercise of due diligence; specially
if it really had been in the possession of Vicente Santillan, an adverse party who, it was alleged,
suppressed the document.
In the interest of judicial expediency, the new trial can be conducted by respondent Appellate Court,
now empowered to do so under Section 9 of Batas Pambansa Blg. 129.
WHEREFORE, this case is hereby remanded to the now Intermediate Appellate Court for new trial,
and depending on its outcome, said Court shall also resolve the respective participation of the parties
in the disputed property, inclusive of the estate of the deceased Vicente Santillan. No costs.
SO ORDERED.
Plana, Relova, Gutierrez, Jr., and De la Fuente, JJ., concur.

Bitong vs CA, 292 SCRA 503 (1998), GR 123553

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. 123553 July 13, 1998

(CA-G.R. No. 33291) July 13, 1998
NORA A. BITONG, petitioner,
vs.
COURT OF APPEALS (FIFTH DIVISION), EUGENIA D. APOSTOL, JOSE A. APOSTOL, MR. & MS.
PUBLISHING CO., LETTY J. MAGSANOC, AND ADORACION G. NUYDA, respondents.
(CA-G.R. No. 33873) July 13, 1998
NORA A. BITONG, petitioner,
vs.
COURT OF APPEALS (FIFTH DIVISION) and EDGARDO B. ESPIRITU, respondents.

BELLOSILLO, J.:
These twin cases originated from a derivative suit 1 filed by petitioner Nora A. Bitong before the
Securities and Exchange Commission (SEC hereafter) allegedly for the benefit of private respondent
Mr. & Ms. Publishing Co., Inc. (Mr. & Ms. hereafter), among others, to hold respondent spouses
Eugenia D. Apostol and Jose A. Apostol 2 liable for fraud, misrepresentation, disloyalty, evident bad
faith, conflict of interest and mismanagement in directing the affairs of Mr. & Ms. to the damage and
prejudice of Mr. & Ms. and its stockholders, including petitioner.
Alleging before the SEC that she had been the Treasurer and a Member of the Board of Directors of
Mr. & Ms. from the time it was incorporated on 29 October 1976 to 11 April 1989, and was the registered
owner of 1,000 shares of stock out of the 4,088 total outstanding shares, petitioner complained of
irregularities committed from 1983 to 1987 by Eugenia D. Apostol, President and Chairperson of the
Board of Directors. Petitioner claimed that except for the sale of the name Philippine Inquirer to
Philippine Daily Inquirer (PDI hereafter) all other transactions and agreements entered into by Mr. &
Ms. with PDI were not supported by any bond and/or stockholders' resolution. And, upon instructions
of Eugenia D. Apostol, Mr. & Ms. made several cash advances to PDI on various occasions amounting
to P3.276 million. On some of these borrowings PDI paid no interest whatsoever. Despite the fact that
the advances made by Mr. & Ms. to PDI were booked as advances to an affiliate, there existed no
board or stockholders' resolution, contract nor any other document which could legally authorize the
creation of and support to an affiliate.
Petitioner further alleged that respondents Eugenia and Jose Apostol were stockholders, directors and
officers in both Mr. & Ms. and PDI. In fact on 2 May 1986 respondents Eugenia D. Apostol, Leticia J.
Magsanoc and Adoracion G. Nuyda subscribed to PDI shares of stock at P50,000.00 each or a total of
P150,000.00. The stock subscriptions were paid for by Mr. & Ms. and initially treated, as receivables
from officers and employees. But, no payments were ever received from respondents, Magsanoc and
Nuyda.
The petition principally sought to (a) enjoin respondents Eugenia D. Apostol and Jose A. Apostol from
further acting as president-director and director, respectively, of Mr. & Ms. and disbursing any money
or funds except for the payment of salaries and similar expenses in the ordinary course of business,
and from disposing of their Mr. & Ms. shares; (b) enjoin respondents Apostol spouses, Magsanoc and
Nuyda from disposing of the PDI shares of stock registered in their names; (c) compel respondents
Eugenia and Jose Apostol to account for and reconvey all profits and benefits accruing to them as a
result of their improper and fraudulent acts; (d) compel respondents Magsanoc and Nuyda to account
for and reconvey to Mr. & Ms. all shares of stock paid from cash advances from it and all accessions
or fruits thereof; (e) hold respondents Eugenia and Jose Apostol liable for damages suffered by Mr. &
Ms. and the other stockholders, including petitioner, by reason of their improper and fraudulent acts; (f)
appoint a management committee for Mr. & Ms. during the pendency of the suit to prevent further
dissipation and loss of its assets and funds as well as paralyzation of business operations; and, (g)
direct the management committee for Mr. & Ms. to file the necessary action to enforce its rights against
PDI and other third parties.
Private respondents Apostol spouses, Magsanoc, Nuyda, and Mr. & Ms., on the other hand, refuted
the allegations of petitioner by starting with a narration of the beginnings of Mr. & Ms. They recounted
that on 9 March 1976 Ex Libris Publishing Co., Inc. (Ex Libris hereafter) was incorporated for the
purpose of publishing a weekly magazine. Its original principal stockholders were spouses Senator
Juan Ponce Enrile (then Minister of National Defense) and Cristina Ponce Enrile through Jaka
Investments Corporation (JAKA hereafter), and respondents Eugenia and Jose Apostol. When Ex Libris
suffered financial difficulties, JAKA and the Apostols, together with new investors Luis Villafuerte and
Ramon Siy, restructured Ex Libris by organizing a new corporation known as Mr. & Ms.
The original stockholders of Mr. & Ms., i.e., JAKA, Luis Villafuerte, Ramon Siy, the Apostols and Ex
Libris continued to be virtually the same up to 1989. Thereafter it was agreed among them that, they
being close friends, Mr. & Ms. would be operated as a partnership or a close corporation; respondent
Eugenia D. Apostol would manage the affairs of Mr. & Ms.; and, no shares of stock would be sold to
third parties without first offering the shares to the other stockholders so that transfers would be limited
to and only among the original stockholders.
Private respondents also asserted that respondent Eugenia D. Apostol had been informing her
business partners of her actions as manager, and obtaining their advice and consent. Consequently
the other stockholders consented, either expressly or impliedly, to her management. They offered no
objections. As a result, the business prospered. Thus, as shown in a statement prepared by the
accounting firm Punongbayan and Araullo, there were increases from 1976 to 1988 in the total assets
of Mr. & Ms. from P457,569.00 to P10,143,046.00; in the total stockholders' equity from P203,378.00
to P2,324,954.00; and, in the net sales, from P301,489.00 to P16,325,610.00. Likewise, cash dividends
were distributed and received by the stockholders.
Private respondents further contended that petitioner, being merely a holder-in-trust of JAKA shares,
only represented and continued to represent JAKA in the board. In the beginning, petitioner cooperated
with and assisted the management until mid-1986 when relations between her and her principals on
one hand, and respondent Eugenia D. Apostol on the other, became strained due to political
differences. Hence from mid-1986 to mid-1988 petitioner refused to speak with respondent Eugenia D.
Apostol, and in 1988 the former became openly critical of the management of the latter. Nevertheless,
respondent Eugenia D. Apostol always made available to petitioner and her representatives all the
books of the corporation.
Private respondents averred that all the PDI shares owned by respondents Eugenia and Jose Apostol
were acquired through their own private funds and that the loan of P750,000.00 by PDI from Mr. & Ms.
had been fully paid with 20% interest per annum. And, it was PDI, not Mr. & Ms., which loaned off
P250,000.00 each to respondents Magsanoc and Nuyda. Private respondents further argued that
petitioner was not the true party to this case, the real party being JAKA which continued to be the true
stockholder of Mr. & Ms.; hence, petitioner did not have the personality to initiate and prosecute the
derivative suit which, consequently, must be dismissed.
On 6 December 1990, the SEC Hearing Panel 3 issued a writ of preliminary injunction enjoining private
respondents from disbursing any money except for the payment of salaries and other similar expenses
in the regular course of business. The Hearing Panel also enjoined respondent Apostol spouses, Nuyda
and Magsanoc from disposing of their PDI shares, and further ruled —
. . . respondents' contention that petitioner is not entitled to the provisional reliefs prayed for because
she is not the real party in interest . . . is bereft of any merit. No less than respondents' Amended
Answer, specifically paragraph V, No. 8 on Affirmative Allegations/Defenses states that "The petitioner
being herself a minor stockholder and holder-in-trust of JAKA shares represented and continues to
represent JAKA in the Board." This statement refers to petitioner sitting in the board of directors of Mr.
& Ms. in two capacities, one as a minor stockholder and the other as the holder in trust of the shares
of JAKA in Mr. & Ms. Such reference alluded to by the respondents indicates an admission on
respondents' part of the petitioner's legal personality to file a derivative suit for the benefit of the
respondent Mr. & Ms. Publishing Co., Inc.
The Hearing Panel however denied petitioner's prayer for the constitution of a management committee.
On 25 March 1991 private respondents filed a Motion to Amend Pleadings to Conform to Evidence
alleging that the issue of whether petitioner is the real party-in-interest had been tried by express or
implied consent of the parties through the admission of documentary exhibits presented by private
respondents proving that the real party-in-interest was JAKA, not petitioner Bitong. As such, No. 8, par.
V (Affirmative Allegations/Defenses), Answer to the Amended Petition, was stipulated due to
inadvertence and excusable mistake and should be amended. On 10 October 1991 the Hearing Panel
denied the motion for amendment.
Petitioner testified at the trial that she became the registered and beneficial owner of 997 shares of
stock of Mr. & Ms. out of the 4,088 total outstanding shares after she acquired them from JAKA through
a deed of sale executed on 25 July 1983 and recorded in the Stock and Transfer Book of Mr. & Ms.
under Certificate of Shares of Stock No. 008. She pointed out that Senator Enrile decided that JAKA
should completely divest itself of its holdings in Mr. & Ms. and this resulted in the sale to her of JAKA's
interest and holdings in that publishing firm.
Private respondents refuted the statement of petitioner that she was a stockholder of Mr. & Ms. since
25 July 1983 as respondent Eugenia D. Apostol signed Certificate of Stock No. 008 only on 17 March
1989, and not on 25 July 1983. Respondent Eugenia D. Apostol explained that she stopped using her
long signature (Eugenia D. Apostol) in 1987 and changed it to E.D. Apostol, the signature which
appeared on the face of Certificate of Stock No. 008 bearing the date 25 July 1983. And, since the
Stock and Transfer Book which petitioner presented in evidence was not registered with the SEC, the
entries therein including Certificate of Stock No. 008 were fraudulent. Respondent Eugenia D. Apostol
claimed that she had not seen the Stock and Transfer Book at anytime until 21 March 1989 when it
was delivered by petitioner herself to the office of Mr. & Ms., and that petitioner repeatedly referred to
Senator Enrile as "my principal" during the Mr. & Ms. board meeting of 22 September 1988, seven (7)
times no less.
On 3 August 1993, after trial on the merits, the SEC Hearing Panel dismissed the derivative suit filed
by petitioner and dissolved the writ of preliminary injunction barring private respondents from disposing
of their PDI shares and any of Mr. & Ms. assets. The Hearing Panel ruled that there was no serious
mismanagement of Mr. & Ms. which would warrant drastic corrective measures. It gave credence to
the assertion of respondent Eugenia D. Apostol that Mr. & Ms. was operated like a close corporation
where important matters were discussed and approved through informal consultations at breakfast
conferences. The Hearing Panel also concluded that while the evidence presented tended to show that
the real party-in-interest indeed was JAKA and/or Senator Enrile, it viewed the real issue to be the
alleged mismanagement, fraud and conflict of interest on the part of respondent Eugenia D. Apostol,
and allowed petitioner to prosecute the derivative suit if only to resolve the real issues. Hence, for this
purpose, the Hearing Panel considered petitioner to be the real party-in-interest.
On 19 August 1993 respondent Apostol spouses sold the PDI shares registered in the name of their
holding company, JAED Management Corporation, to Edgardo B. Espiritu. On 25 August 1993
petitioner Bitong appealed to the SEC En Banc.
On 24 January 1994 the SEC En Banc 4 reversed the decision of the Hearing Panel and, among others,
ordered private respondents to account for, return and deliver to Mr. & Ms. any and all funds and assets
that they disbursed from the coffers of the corporation including shares of stock, profits, dividends
and/or fruits that they might have received as a result of their investment in PDI, including those arising
from the P150,000.00 advanced to respondents Eugenia D. Apostol, Leticia J. Magsanoc and
Adoracion G. Nuyda; account for and return any profits and fruits of all amounts irregularly or unlawfully
advanced to PDI and other third persons; and, cease and desist from managing the affairs of Mr. & Ms.
for reasons of fraud, mismanagement, disloyalty and conflict of interest.
The SEC En Banc also declared the 19 August 1993 sale of the PDI shares of JAED Management
Corporation to Edgardo B. Espiritu to be tainted with fraud, hence, null and void, and considered Mr. &
Ms. as the true and lawful owner of all the PDI shares acquired by respondents Eugenia D. Apostol,
Magsanoc and Nuyda. It also declared all subsequent transferees of such shares as trustees for the
benefit of Mr. & Ms. and ordered them to forthwith deliver said shares to Mr. & Ms.
Consequently, respondent Apostol spouses, Magsanoc, Nuyda, and Mr. & Ms. filed a petition for review
before respondent Court of Appeals, docketed as CA-GR No. SP 33291, while respondent Edgardo B.
Espiritu filed a petition for certiorari and prohibition also before respondent Court of Appeals, docketed
as CA-GR No. SP 33873. On 8 December 1994 the two (2) petitions were consolidated.
On 31 August 1995 respondent appellate court rendered a decision reversing the SEC En Banc and
held that from the evidence on record petitioner was not the owner of any share of stock in Mr. & Ms.
and therefore not the real party-in-interest to prosecute the complaint she had instituted against private
respondents. Accordingly, petitioner alone and by herself as an agent could not file a derivative suit in
behalf of her principal. For not being the real party-in-interest, petitioner's complaint did not state a
cause of action, a defense which was never waived; hence, her petition should have been dismissed.
Respondent appellate court ruled that the assailed orders of the SEC were issued in excess of
jurisdiction, or want of it, and thus were null and void. 5 On 18 January 1996, petitioner's motion for
reconsideration was denied for lack of merit.
Before this Court, petitioner submits that in paragraph 1 under the caption "I. The Parties" of her
Amended Petition before the SEC, she stated that she was a stockholder and director of Mr. & Ms. In
par. 1 under the caption "II. The Facts" she declared that she "is the registered owner of 1,000 shares
of stock of Mr. & Ms. out of the latter's 4,088 total outstanding shares" and that she was a member of
the Board of Directors of Mr. & Ms. and treasurer from its inception until 11 April 1989. Petitioner
contends that private respondents did not deny the above allegations in their answer and therefore they
are conclusively bound by this judicial admission. Consequently, private respondents' admission that
petitioner has 1,000 shares of stock registered in her name in the books of Mr. & Ms. forecloses any
question on her status and right to bring a derivative suit on behalf of Mr. & Ms.
Not necessarily. A party whose pleading is admitted as an admission against interest is entitled to
overcome by evidence the apparent inconsistency, and it is competent for the party against whom the
pleading is offered to show that the statements were inadvertently made or were made under a mistake
of fact. In addition, a party against whom a single clause or paragraph of a pleading is offered may
have the right to introduce other paragraphs which tend to destroy the admission in the paragraph
offered by the adversary. 6
The Amended Petition before the SEC alleges —
I. THE PARTIES
1. Petitioner is a stockholder and director of Mr. & Ms. . . . .
II. THE FACTS
1. Petitioner is the registered owner of 1,000 shares of stock of Mr. & Ms. out of the latter's 4,088 total
outstanding shares. Petitioner, at all times material to this petition, is a member of the Board of Directors
of Mr. & Ms. and from the inception of Mr. & Ms. until 11 April 1989 was its treasurer . . .
On the other hand, the Amended Answer to the Amended Petition states —
I. PARTIES
1. Respondents admit the allegations contained in Caption I, pars. 1 to 4 of the Petition referring to the
personality, addresses and capacity of the parties to the petition except . . . but qualify said admission
insofar as they are limited, qualified and/or expanded by allegations in the Affirmative
Allegations/Defenses . . .
II. THE FACTS
1. Respondents admit paragraph 1 of the Petition, but qualify said admission as to the beneficial
ownership of the shares of stock registered in the name of the petitioner, the truth being as stated in
the Affirmative Allegations/Defenses of this Answer . . .
V. AFFIRMATIVE ALLEGATIONS/DEFENSES
Respondents respectfully allege by way of Affirmative Allegations/Defenses, that . . . .
3. Fortunately, respondent Apostol was able to convince Mr. Luis Villafuerte to take interest in the
business and he, together with the original investors, restructured the Ex Libris Publishing Company
by organizing a new corporation known as Mr. & Ms. Publishing Co., Inc. . . . Mr. Luis Villafuerte
contributed his own P100,000.00. JAKA and respondent Jose Z. Apostol, original investors of Ex Libris
contributed P100,000.00 each; Ex Libris Publishing Company was paid 800 shares for the name of Mr.
& Ms. magazine and goodwill. Thus, the original stockholders of respondent Mr. & Ms. were:
Cert./No./Date Name of Stockholder No. of Shares %
001-9-15-76 JAKA Investments Corp. 1,000 21%
002-9-15-76 Luis Villafuerte 1,000 21%
003-9-15-76 Ramon L. Siy 1,000 21%
004-9-15-76 Jose Z. Apostol 1,000 21%
005-9-15-76 Ex Libris Publishing Co. 800 16%
—— ——
4,800 96%
4. The above-named original stockholders of respondent Mr. & Ms. continue to be virtually the same
stockholders up to this date . . . .
8. The petitioner being herself a minor stockholder and holder-in-trust of JAKA shares, represented and
continues to represent JAKA in the Board . . . .
21. Petitioner Nora A. Bitong is not the true party to this case, the true party being JAKA Investments
Corporation which continues to be the true stockholder of respondent Mr. & Ms. Publishing Co., Inc.,
consequently, she does not have the personality to initiate and prosecute this derivative suit, and should
therefore be dismissed . . . .
The answer of private respondents shows that there was no judicial admission that petitioner was a
stockholder of Mr. & Ms. to entitle her to file a derivative suit on behalf of the corporation. Where the
statements of the private respondents were qualified with phrases such as, "insofar as they are limited,
qualified and/or expanded by," "the truth being as stated in the Affirmative Allegations/Defenses of this
Answer" they cannot be considered definite and certain enough, cannot be construed as judicial
admissions. 7
More so, the affirmative defenses of private respondents directly refute the representation of petitioner
that she is a true and genuine stockholder of Mr. & Ms. by stating unequivocally that petitioner is not
the true party to the case but JAKA which continues to be the true stockholder of Mr. & Ms. In fact, one
of the reliefs which private respondents prayed for was the dismissal of the petition on the ground that
petitioner did not have the legal interest to initiate and prosecute the same.
When taken in its totality, the Amended Answer to the Amended Petition, or even the Answer to the
Amended Petition alone, clearly raises an issue as to the legal personality of petitioner to file the
complaint. Every alleged admission is taken as an entirety of the fact which makes for the one side with
the qualifications which limit, modify or destroy its effect on the other side. The reason for this is, where
part of a statement of a party is used against him as an admission, the court should weigh any other
portion connected with the statement, which tends to neutralize or explain the portion which is against
interest.
In other words, while the admission is admissible in evidence, its probative value is to be determined
from the whole statement and others intimately related or connected therewith as an integrated unit.
Although acts or facts admitted do not require proof and cannot be contradicted, however, evidence
aliunde can be presented to show that the admission was made through palpable mistake. 8 The rule
is always in favor of liberality in construction of pleadings so that the real matter in dispute may be
submitted to the judgment of the court. 9
Petitioner also argues that since private respondents failed to appeal the 6 December 1990 Order and
the 3 August 1993 Decision of the SEC Hearing Panel declaring that she was the real party-in-interest
and had legal personality to sue, they are now estopped from questioning her personality.
Not quite. The 6 December 1990 Order is clearly an interlocutory order which cannot be considered as
having finally resolved on the merits the issue of legal capacity of petitioner. The SEC Hearing Panel
discussed the issue of legal capacity solely for the purpose of ruling on the application for writ of
preliminary injunction as an incident to the main issues raised in the complaint. Being a mere
interlocutory order, it is not appealable.
For, an interlocutory order refers to something between the commencement and end of the suit which
decides some point or matter but it is not the final decision of the whole controversy. 10 Thus, even
though the 6 December 1990 Order was adverse to private respondents, they had the legal right and
option not to elevate the same to the SEC En Banc but rather to await the decision which resolves all
the issues raised by the parties and to appeal therefrom by assigning all errors that might have been
committed by the Hearing Panel.
On the other hand, the 3 August 1993 Decision of the Hearing Panel dismissing the derivative suit for
failure to prove the charges of mismanagement, fraud, disloyalty and conflict of interest and dissolving
the writ of preliminary injunction, was favorable to private respondents. Hence, they were not expected
to appeal therefrom.
In fact, in the 3 August 1993 Decision, the Hearing Panel categorically stated that the evidence
presented showed that the real party-in-interest was not petitioner Bitong but JAKA and/or Senator
Enrile. Petitioner was merely allowed to prosecute her complaint so as not to sidetrack "the real issue
to be resolved (which) was the allegation of mismanagement, fraud and conflict of interest allegedly
committed by respondent Eugenia D. Apostol." It was only for this reason that petitioner was considered
to be capacitated and competent to file the petition.
Accordingly, with the dismissal of the complaint of petitioner against private respondents, there was no
compelling reason for the latter to appeal to the SEC En Banc. It was in fact petitioner's turn as the
aggrieved party to exercise her right to appeal from the decision. It is worthy to note that even during
the appeal of petitioner before the SEC En Banc private respondents maintained their vigorous
objection to the appeal and reiterated petitioner's lack of legal capacity to sue before the SEC.
Petitioner then contends that she was a holder of the proper certificates of shares of stock and that the
transfer was recorded in the Stock and Transfer Book of Mr. & Ms. She invokes Sec. 63 of The
Corporation Code which provides that no transfer shall be valid except as between the parties until the
transfer is recorded in the books of the corporation, and upon its recording the corporation is bound by
it and is estopped to deny the fact of transfer of said shares. Petitioner alleges that even in the absence
of a stock certificate, a stockholder solely on the strength of the recording in the stock and transfer book
can exercise all the rights as stockholder, including the right to file a derivative suit in the name of the
corporation. And, she need not present a separate deed of sale or transfer in her favor to prove
ownership of stock.
Sec. 63 of The Corporation Code expressly provides —
Sec. 63. Certificate of stock and transfer of shares. — The capital stock of stock corporations shall be
divided into shares for which certificates signed by the president or vice president, countersigned by
the secretary or assistant secretary, and sealed with the seal of the corporation shall be issued in
accordance with the by-laws. Shares of stock so issued are personal property and may be transferred
by delivery of the certificate or certificates indorsed by the owner or his attorney-in-fact or other person
legally authorized to make the transfer. No transfer however shall be valid except as between the
parties until the transfer is recorded in the books of the corporation showing the names of the parties
to the transaction, the date of the transfer, the number of the certificate or certificates and the number
of shares transferred . . . .
This provision above quoted envisions a formal certificate of stock which can be issued only upon
compliance with certain requisites. First, the certificates must be signed by the president or vice-
president, countersigned by the secretary or assistant secretary, and sealed with the seal of the
corporation. A mere typewritten statement advising a stockholder of the extent of his ownership in a
corporation without qualification and/or authentication cannot be considered as a formal certificate of
stock. 11 Second, delivery of the certificate is an essential element of its issuance. Hence, there is no
issuance of a stock certificate where it is never detached from the stock books although blanks therein
are properly filled up if the person whose name is inserted therein has no control over the books of the
company. 12 Third, the par value, as to par value shares, or the full subscription as to no par value
shares, must first be fully paid. Fourth, the original certificate must be surrendered where the person
requesting the issuance of a certificate is a transferee from a stockholder.
The certificate of stock itself once issued is a continuing affirmation or representation that the stock
described therein is valid and genuine and is at least prima facie evidence that it was legally issued in
the absence of evidence to the contrary. However, this presumption may be rebutted. 13 Similarly, books
and records of a corporation which include even the stock and transfer book are generally admissible
in evidence in favor of or against the corporation and its members to prove the corporate acts, its
financial status and other matters including one's status as a stockholder. They are ordinarily the best
evidence of corporate acts and proceedings.
However, the books and records of a corporation are not conclusive even against the corporation but
are prima facie evidence only. Parol evidence may be admitted to supply omissions in the records,
explain ambiguities, or show what transpired where no records were kept, or in some cases where such
records were contradicted. 14 The effect of entries in the books of the corporation which purport to be
regular records of the proceedings of its board of directors or stockholders can be destroyed by
testimony of a more conclusive character than mere suspicion that there was an irregularity in the
manner in which the books were kept. 15
The foregoing considerations are founded on the basic principle that stock issued without authority and
in violation of law is void and confers no rights on the person to whom it is issued and subjects him to
no liabilities. 16 Where there is an inherent lack of power in the corporation to issue the stock, neither
the corporation nor the person to whom the stock is issued is estopped to question its validity since an
estopped cannot operate to create stock which under the law cannot have existence. 17
As found by the Hearing Panel and affirmed by respondent Court of Appeals, there is overwhelming
evidence that despite what appears on the certificate of stock and stock and transfer book, petitioner
was not a bona fide stockholder of Mr. & Ms. before March 1989 or at the time the complained acts
were committed to qualify her to institute a stockholder's derivative suit against private respondents.
Aside from petitioner's own admissions, several corporate documents disclose that the true party-in-
interest is not petitioner but JAKA.
Thus, while petitioner asserts in her petition that Certificate of Stock No. 008 dated 25 July 1983 was
issued in her name, private respondents argue that this certificate was signed by respondent Eugenia
D. Apostol as President only in 1989 and was fraudulently antedated by petitioner who had possession
of the Certificate Book and the Stock and Transfer Book. Private respondents stress that petitioner's
counsel entered into a stipulation on record before the Hearing Panel that the certificate was indeed
signed by respondent Apostol only in 1989 and not in 1983.
In her reply, petitioner admits that while respondent Eugenia D. Apostol signed the Certificate of Stock
No. 008 in petitioner's name only in 1989, it was issued by the corporate secretary in 1983 and that the
other certificates covering shares in Mr. & Ms. had not yet been signed by respondent Eugenia D.
Apostol at the time of the filing of the complaint with the SEC although they were issued years before.
Based on the foregoing admission of petitioner, there is no truth to the statement written in Certificate
of Stock No. 008 that the same was issued and signed on 25 July 1983 by its duly authorized officers
specifically the President and Corporate Secretary because the actual date of signing thereof was 17
March 1989. Verily, a formal certificate of stock could not be considered issued in contemplation of law
unless signed by the president or vice-president and countersigned by the secretary or assistant
secretary.
In this case, contrary to petitioner's submission, the Certificate of Stock No. 008 was only legally issued
on 17 March 1989 when it was actually signed by the President of the corporation, and not before that
date. While a certificate of stock is not necessary to make one a stockholder, e.g., where he is an
incorporator and listed as stockholder in the articles of incorporation although no certificate of stock has
yet been issued, it is supposed to serve as paper representative of the stock itself and of the owner's
interest therein. Hence, when Certificate of Stock No. 008 was admittedly signed and issued only on
17 March 1989 and not on 25 July 1983, even as it indicates that petitioner owns 997 shares of stock
of Mr. & Ms., the certificate has no evidentiary value for the purpose of proving that petitioner was a
stockholder since 1983 up to 1989.
And even the factual antecedents of the alleged ownership by petitioner in 1983 of shares of stock of
Mr. & Ms. are indistinctive if not enshrouded in inconsistencies. In her testimony before the Hearing
Panel, petitioner said that early in 1983, to relieve Mr. & Ms. from political pressure, Senator Enrile
decided to divest the family holdings in Mr. & Ms. as he was then part of the government and Mr. & Ms.
was evolving to be an opposition newspaper. The JAKA shares numbering 1,000 covered by Certificate
of Stock No. 001 were thus transferred to respondent Eugenia D. Apostol in trust or in blank. 18
Petitioner now claims that a few days after JAKA's shares were transferred to respondent Eugenia D.
Apostol, Senator Enrile sold to petitioner 997 shares of JAKA. For this purpose, a deed of sale was
executed and antedated to 10 May 1983. 19 This submission of petitioner is however contradicted by
the records which show that a deed of sale was executed by JAKA transferring 1,000 shares of Mr. &
Ms. to respondent Apostol on 10 May 1983 and not to petitioner. 20
Then Senator Enrile testified that in May or June 1983 he was asked at a media interview if his family
owned shares of stock in Mr. & Ms. Although he and his family were stockholders at that time he denied
it so as not to embarrass the magazine. He called up petitioner and instructed her to work out the
documentation of the transfer of shares from JAKA to respondent Apostol to be covered by a
declaration of trust. His instruction was to transfer the shares of JAKA in Mr. & Ms. and Ex Libris to
respondent Apostol as a nominal holder. He then finally decided to transfer the shareholdings to
petitioner. 21
When asked if there was any document or any written evidence of that divestment in favor of petitioner,
Senator Enrile answered that there was an endorsement of the shares of stock. He said that there was
no other document evidencing the assignment to petitioner because the stocks were personal property
that could be transferred even orally. 22 Contrary to Senator Enrile's testimony, however, petitioner
maintains that Senator Enrile executed a deed of sale in her favor.
A careful perusal of the records shows that neither the alleged endorsement of Certificate of Stock No.
001 in the name of JAKA nor the alleged deed of sale executed by Senator Enrile directly in favor of
petitioner could have legally transferred or assigned on 25 July 1983 the shares of stock in favor of
petitioner because as of 10 May 1983 Certificate of Stock No. 001 in the name of JAKA was already
cancelled and a new one, Certificate of Stock No. 007, issued in favor of respondent Apostol by virtue
of a Declaration of Trust and Deed of Sale. 23
It should be emphasized that on 10 May 1983 JAKA executed, a deed of sale over 1,000 Mr. & Ms.
shares in favor of respondent Eugenio D. Apostol. On the same day, respondent Apostol signed a
declaration of trust stating that she was the registered owner of 1,000 Mr. & Ms. shares covered by
Certificate of Stock No. 007.
The declaration of trust further showed that although respondent Apostol was the registered owner,
she held the shares of stock and dividends which might be paid in connection therewith solely in trust
for the benefit of JAKA, her principal. It was also stated therein that being a trustee, respondent Apostol
agreed, on written request of the principal, to assign and transfer the shares of stock and any and all
such distributions or dividends unto the principal or such other person as the principal would nominate
or appoint.
Petitioner was well aware of this trust, being the person in charge of this documentation and being one
of the witnesses to the execution of this
document. 24 Hence, the mere alleged endorsement of Certificate of Stock No. 001 by Senator Enrile
or by a duly authorized officer of JAKA to effect the transfer of shares of JAKA to petitioner could not
have been legally feasible because Certificate of Stock No. 001 was already canceled by virtue of the
deed of sale to respondent Apostol.
And, there is nothing in the records which shows that JAKA had revoked the trust it reposed on
respondent Eugenia D. Apostol. Neither was there any evidence that the principal had requested her
to assign and transfer the shares of stock to petitioner. If it was true that the shares of stock covered
by Certificate of Stock No. 007 had been transferred to petitioner, the person who could legally endorse
the certificate was private respondent Eugenia D. Apostol, she being the registered owner and trustee
of the shares of stock covered by Certificate of Stock No. 007. It is a settled rule that the trustee should
endorse the stock certificate to validate the cancellation of her share and to have the transfer recorded
in the books of the corporation. 25
In fine, the records are unclear on how petitioner allegedly acquired the shares of stock of JAKA.
Petitioner being the chief executive officer of JAKA and the sole person in charge of all business and
financial transactions and affairs of JAKA 26 was supposed to be in the best position to show convincing
evidence on the alleged transfer of shares to her, if indeed there was a transfer. Considering that
petitioner's status is being questioned and several factual circumstances have been presented by
private respondents disproving petitioner's claim, it was incumbent upon her to submit rebuttal evidence
on the manner by which she allegedly became a stockholder. Her failure to do so taken in the light of
several substantial inconsistencies in her evidence is fatal to her case.
The rule is that the endorsement of the certificate of stock by the owner or his attorney-in-fact or any
other person legally authorized to make the transfer shall be sufficient to effect the transfer of shares
only if the same is coupled with delivery. The delivery of the stock certificate duly endorsed by the
owner is the operative act of transfer of shares from the lawful owner to the new transferee.
Thus, for a valid transfer of stocks, the requirements are as follows: (a) There must be delivery of the
stock certificate; (b) The certificate must be endorsed by the owner or his attorney-in-fact or other
persons legally authorized to make the transfer; and, (c) to be valid against third parties, the transfer
must be recorded in the books of the corporation. 27 At most, in the instant case, petitioner has satisfied
only the third requirement. Compliance with the first two requisites has not been clearly and sufficiently
shown.
Considering that the requirements provided under Sec. 63 of The Corporation Code should be
mandatorily complied with, the rule on presumption of regularity cannot apply. The regularity and validity
of the transfer must be proved. As it is, even the credibility of the stock and transfer book and the entries
thereon relied upon by petitioner to show compliance with the third requisite to prove that she was a
stockholder since 1983 is highly doubtful.
The records show that the original stock and transfer book and the stock certificate book of Mr. & Ms.
were in the possession of petitioner before their custody was transferred to the Corporate Secretary,
Atty. Augusto San Pedro. 28 On 25 May 1988, Assistant Corporate Secretary Renato Jose Unson wrote
Mr. & Ms. about the lost stock and transfer book which was also noted by the corporation's external
auditors, Punongbayan and Araullo, in their audit. Atty. Unson even informed respondent Eugenia D.
Apostol as President of Mr. & Ms. that steps would be undertaken to prepare and register a new Stock
and Transfer Book with the SEC. Incidentally, perhaps strangely, upon verification with the SEC, it was
discovered that the general file of the corporation with the SEC was missing. Hence, it was even
possible that the original Stock and Transfer Book might not have been registered at all.
On 20 October 1988 respondent Eugenia D. Apostol wrote Atty. Augusto San Pedro noting the changes
he had made in the Stock and Transfer Book without prior notice to the corporate officers. 29 In the 27
October 1988 directors' meeting, respondent Eugenia D. Apostol asked about the documentation to
support the changes in the Stock and Transfer Book with regard to the JAKA shares. Petitioner
answered that Atty. San Pedro made the changes upon her instructions conformably with established
practice. 30
This simply shows that as of 1988 there still existed certain issues affecting the ownership of the JAKA
shares, thus raising doubts whether the alleged transactions recorded in the Stock and Transfer Book
were proper, regular and authorized. Then, as if to magnify and compound the uncertainties in the
ownership of the shares of stock in question, when the corporate secretary resigned, the Stock and
Transfer Book was delivered not to the corporate office where the book should be kept but to petitioner.
31

That JAKA retained its ownership of its Mr. & Ms. shares was clearly shown by its receipt of the
dividends issued in December 1986. 32 This only means, very obviously, that Mr. & Ms. shares in
question still belonged to JAKA and not to petitioner. For, dividends are distributed to stockholders
pursuant to their right to share in corporate profits. When a dividend is declared, it belongs to the person
who is the substantial and beneficial owner of the stock at the time regardless of when the distribution
profit was earned. 33
Finally, this Court takes notice of the glaring and open admissions of petitioner made, not just seven
(7) but nine (9) times, during the 22 September 1988 meeting of the board of directors that the Enriles
were her principals or shareholders, as shown by the minutes thereof which she duly signed 34 —
5. Mrs. E. Apostol explained to the Directors that through her efforts, the asset base of the Company
has improved and profits were realized. It is for this reason that the Company has declared a 100%
cash dividend in 1986. She said that it is up for the Board to decide based on this performance whether
she should continue to act as Board Chairman or not. In this regard, Ms. N.A. Bitong expressed her
recollection of how Ex-Libris/Mr. & Ms. were organized and her participation for and on behalf of her
principals, as follows: She recalled that her principals were invited by Mrs. E. Apostol to invest in Ex-
Libris and eventually Mr. & Ms. The relationship between her principals and Mrs. E. Apostol made it
possible for the latter to have access to several information concerning certain political events and
issues. In many instances, her principals supplied first hand and newsworthy information that made Mr.
& Ms. a popular
paper . . . .
6. According to Ms. Bitong, her principals were instrumental in helping Mr. & Ms. survive during those
years that it was cash strapped . . . . Ms. N.A. Bitong pointed out that the practice of using the former
Minister's influence and stature in the government is one thing which her principals themselves are
strongly against . . . .
7. . . . . At this point, Ms. N. Bitong again expressed her recollection of the subject matter as follows:
(a) Mrs. E. Apostol, she remembers, brought up the concept of a cooperative-ran newspaper company
in one of her breakfast session with her principals sometime during the end of 1985. Her principals
when asked for an opinion, said that they recognized the concept as something very noble and visible
. . . . Then Ms. Bitong asked a very specific question — "When you conceptualized Ex-Libris and Mr. &
Ms., did you not think of my shareholders the Ponce Enriles as liabilities? How come you associated
yourself with them then and not now? What is the difference?" Mrs. Apostol did not answer the question.
The admissions of a party against his interest inscribed upon the record books of a corporation are
competent and persuasive evidence against him. 35 These admissions render nugatory any argument
that petitioner is a bona fide stockholder of Mr. & Ms. at any time before 1988 or at the time the acts
complained of were committed. There is no doubt that petitioner was an employee of JAKA as its
managing officer, as testified to by Senator Enrile himself. 36 However, in the absence of a special
authority from the board of directors of JAKA to institute a derivative suit for and in its behalf, petitioner
is disqualified by law to sue in her own name. The power to sue and be sued in any court by a
corporation even as a stockholder is lodged in the board of directors that exercises its corporate powers
and not in the president or officer thereof. 37
It is well settled in this jurisdiction that where corporate directors are guilty of a breach of trust, not of
mere error of judgment or abuse of discretion, and intracorporate remedy is futile or useless, a
stockholder may institute a suit in behalf of himself and other stockholders and for the benefit of the
corporation, to bring about a redress of the wrong inflicted directly upon the corporation and indirectly
upon the stockholders. 38 The stockholder's right to institute a derivative suit is not based on any express
provision of The Corporation Code but is impliedly recognized when the law makes corporate directors
or officers liable for damages suffered by the corporation and its stockholders for violation of their
fiduciary duties.
Hence, a stockholder may sue for mismanagement, waste or dissipation of corporate assets because
of a special injury to him for which he is otherwise without redress. 39 In effect, the suit is an action for
specific performance of an obligation owed by the corporation to the stockholders to assist its rights of
action when the corporation has been put in default by the wrongful refusal of the directors or
management to make suitable measures for its protection. 40
The basis of a stockholder's suit is always one in equity. However, it cannot prosper without first
complying with the legal requisites for its institution. The most important of these is the bona fide
ownership by a stockholder of a stock in his own right at the time of the transaction complained of which
invests him with standing to institute a derivative action for the benefit of the corporation. 41
WHEREFORE, the petition is DENIED. The 31 August 1995 Decision of the Court of Appeals
dismissing the complaint of petitioner Nora A. Bitong in CA-G.R. No. SP 33291, and granting the petition
for certiorari and prohibition filed by respondent Edgardo U. Espiritu as well as annulling the 5
November 1993, 24 January 1993 and 18 February 1994 Orders of the SEC En Banc in CA-G.R. No.
SP 33873, is AFFIRMED. Costs against petitioner.
SO ORDERED.
Davide, Vitug and Quisumbing, JJ., concur.
Panganiban, J., took no part.

III. (to follow)