[G.R. No. 146697.

July 23, 2002] In this automatic review, the convicted accused

assigned the following alleged errors committed by the
court a quo.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, I

vs. LEONARDO FABRE y VICENTE, accused- THE TRIAL COURT GRAVELY ERRED IN NOT GIVING
appellant. CREDENCE TO ACCUSED-APPELLANTS DEFENSE OF ALIBI
DECISION AND DENIAL.

VITUG, J.: II

Leonardo Fabre was adjudged guilty by the Regional ASSUMING IN ARGUENDO THAT ACCUSED-APPELLANT IS
Trial Court, Br. VI, of Prosperidad, Agusan del Sur, of GUILTY, THE TRIAL COURT GRAVELY ERRED IN IMPOSING
raping his own daughter Marilou Fabre, and he was THE DEATH SENTENCE UPON ACCUSED-APPELLANT
sentenced to suffer the extreme penalty of death. DESPITE THE FAILURE OF THE PROSECUTION TO
ESTABLISH THE ACTUAL AGE OF MARILOU FABRE AT THE
Fabre was indicted in an Information that read: [1] TIME OF THE COMMISSION OF THE ALLEGED RAPE.[4]
That on or about 4:00 oclock in the afternoon of April 26,
The defense argues, rather desperately, that the
1995 in the house of the accused located at Manat,
testimony of appellant should acquire added strength for
Trento, Agusan del Sur, Philippines and within the
the failure of the prosecution to conduct cross-
jurisdiction of this Honorable Court, the above-named
examination on him and to present any rebuttal
accused by force, threats and intimidation, with lewd
evidence. The cross-examination of a witness is a
design, did then and there willfully, unlawfully and
prerogative of the party against whom the witness is
feloniously succeed in having sexual intercourse with his
called.[5] The purpose of cross-examination is to test the
own daughter MARILOU FABRE, a girl thirteen (13) years
truth or accuracy of the statements of a witness made on
of age, of good reputation, against her will and consent
direct examination.[6] The party against whom the witness
to the damage and prejudice of the said victim consisting
testifies may deem any further examination unnecessary
of moral, actual and compensatory damages.
and instead rely on any other evidence theretofore
adduced or thereafter to be adduced or on what would
Accused pleaded not guilty to the crime charged. At
be believed is the perception of the court
the trial, the prosecution presented the testimony of
thereon. Certainly, the trial court is not bound to give full
Marilou, that of Adela Fabre, her mother and the wife of
weight to the testimony of a witness on direct
the accused, and that of Dr. Reinerio Jalalon, the doctor
examination merely because he is not cross-examined by
who examined Marilou, along with the medico-legal
the other party.
certificate issued by Dr. Jalalon, the sworn statement of
Adela, and the criminal complaint signed by both Marilou The alibi of appellant itself would not appear to be
and Adela. The defense, during its turn in the deserving of serious consideration. His account that at
presentation of evidence, countered with the testimony the time of the alleged rape he was working at a coconut
of the accused himself. It also called Adela Fabre back to plantation, just about one kilometer away from the place
the witness stand. of the crime, hardly would amount to much. Nor would
the testimony of Adela Fabre, his wife, merit any better
The trial court gave credence to the evidence given
regard. At first, she testified that on the day of the rape
by the prosecution, particularly to the narration of the
incident, she had left their house at four oclock in the
young complainant, expressing a quote from an
afternoon. Later, however, she changed her story by
observation once made by this Tribunal in one of its
saying that she had left the house in the morning and
decision that even when consumed with revenge, it
returned only at ten oclock that same morning, staying
(would) take a certain amount of psychological depravity
home the whole day thereafter. In any event, in order
for a young woman to concoct a story which (could) put
that alibi might prosper, it would not be enough for an
her own father for the rest of his remaining life in jail and
accused to prove that he was somewhere else when the
drag herself and the rest of her family to a lifetime of
crime was committed; he would have to demonstrate
shame.[2] Convinced that the accused committed the
likewise that he could not have been physically present at
crime of rape on his own daughter, the trial judge
the place of the crime or in its immediate vicinity at the
disposed of the case thusly:
time of its commission. [7] Clearly, in the instant case, it
WHEREFORE, the Court finds accused LEONARDO FABRE was not at all impossible nor even improbable for
y VICENTE alias Nardo, GUILTY beyond reasonable doubt appellant to have been at the crime scene.
as principal of the crime of RAPE as defined and
Upon the other hand, the evidently candid and
penalized under Article 335 of the Revised Penal Code as
straightforward testimony of Marilou should be more
amended by R.A. No. 7659 Section 11 thereof and hereby
than enough to rebut the claim of innocence made by
imposes upon the accused Leonardo Fabre y Vicente alias
appellant.[8]
Nardo the penalty of DEATH; to pay the victim Marilou
Fabre civil indemnity in the amount of FIFTY THOUSAND On 26 April 1995, around four oclock in the
(P50,000.00) PESOS and the costs.[3] afternoon, Marilou Fabre was alone in their house in
Barangay Manat, Trento, Agusan del Sur. Adela Fabre, her
mother, had gone to Purok 4 to buy fish while her siblings
were out strolling. After cleaning their yard, Marilou went Q What did you do when your father dragged you to
to the adjacent palm plantation, about fourteen to fifteen your house?
meters away from their house, to gather palm
A Because I was dragged by my father to our house I
oil. Marilou had been gathering palm oil for about a
just went with him, sir.
minute when her father, appellant Leonardo Fabre,
arrived. He suddenly gripped Marilous hands and forcibly Q While you were in your house after having been
dragged her towards the house. He closed the door and dragged by your father, what happened if any?
removed his daughters underwear. He took off his pants
and asked Marilou to hold his sex organ. In tears, Marilou A He closed our house and he removed my panty, sir.
obeyed her father. He then began touching the girls Q And after removing your panty, what did your
breasts and vagina. He forced her to lie down, mounted father do next?
her and sought to insert his penis into her organ. Marilou
cried in pain. When after some time he still could not A He removed his pants and he let me hold his penis,
insert his penis into Marilous vagina, he applied coconut sir.
oil to lubricate his and his daughters sexual organs. He
Q And what did you do next after holding his penis?
was finally able to penetrate her. Once inside her,
appellant made push and pull movements until he was A I was crying, sir.
through with her. Appellant threatened to kill her if she
would tell anybody about the sexual encounter. The Q While you were crying what did your father do?
young girls mother, Adela Fabre, arrived home about five A He was touching my breast and my vagina, sir.
oclock that afternoon but, remembering her fathers
threats, she kept mum about her ordeal. Q After that what did he do next?

The credibility of Marilou would not be all that A He let me lie down, sir.
difficult to discern from her narration that, as so
Q And while lying down, what did your father do?
described by the prosecution, was full of graphic details
which a young provincial girl could not possibly have A He mounted me and he inserted his penis, to my
concocted and which could only have come from vagina, sir.
someone who must have personally experienced a brutal
rape assault. She testified: Q And what did you feel while your father was
inserting his penis to your vagina?
PROS. ENRIQUEZ:
A Very painful, sir.
Q Now, Miss Marilou, can you recall where were you
on April 26, 1995 at about 4:00 oclock in the Q And what did you do while your father was
afternoon? inserting his penis to your vagina?

A Yes, sir. A I was crying, sir.

Q Where were you that time? Q And while you were crying what did your father do
if any?
A In our house, sir.
A He told me not to tell anybody because if I will do it
Q What were you doing in your house? he will kill me, sir.
A I was cleaning our yard, sir. Q Now, did your father find it easy to insert his penis
to your vagina?
Q How far is your yard where you were doing some
works from your house? A It [took] a long time, sir.
A (Witness pointing a distance of around 2 to 3 Q And did he use anything to facilitate the insertion of
meters.) his penis to your vagina?
Q Now, while you were doing your work in your yard, A Yes, sir.
can you recall if there was an incident that
occurred? Q What was that?

A Yes, sir. A He used coconut oil in his penis and also in my

vagina so that his penis can easily insert my
Q What was that incident that occurred? vagina, sir.
A While I was gathering a palm oil my father arrived Q Now, while his penis was in your vagina, can you tell
and suddenly dragged me to our house, sir. this Honorable Court if he did anything also on
top of you and while his penis was inside your
COURT:
vagina?
Q Where is your house located?
A None, sir.
A At Purok 4, Manat, Trento, Agusan del Sur, Your
Q Did he make any movement?
Honor.
A Yes, sir.
PROS. ENRIQUEZ:
 Q What was that movement? While the father-daughter relationship between
appellant and private complainant has been sufficiently
A He made a push and pull movement on my body, established, the fact of minority of the victim, although
sir. specifically averred in the information, has not been
Q Now, while your father was doing it to you where equally shown in evidence. These qualifying
was your mother that time? circumstances of relationship and minority are twin
requirements that should be both alleged in the
A She was in Purok 4, Manat, Trento, Agusan del Sur, information and established beyond reasonable doubt
sir. during trial in order to sustain an imposition of the death
Q And did you report this incident to your mother? penalty.[14] Neither an obvious minority of the victim nor
the failure of the defense to contest her real age always
A Not yet sir because he told me not to tell anybody. excuse the prosecution from the desired proof required
by law.[15] Judicial notice of the issue of age without the
Q So when did you had a chance to tell your mother
requisite hearing conducted under Section 3, Rule 129, of
about this incident?
the Rules of Court, would not be considered sufficient
A On May 1, 1995, sir. compliance with the law. The birth certificate of the
victim or, in lieu thereof, any other documentary
Q And what did your mother do after you reported to evidence, like a baptismal certificate, school records and
her this incident? documents of similar nature, or credible testimonial
A She reported [the matter] to the Kagawad, sir. [9] evidence, that can help establish the age of the victim
should be presented.[16] While the declaration of a victim
It has been stressed quite often enough that the as to her age, being an exception to the hearsay
testimony of a rape victim, who is young and still proscription, would be admissible under the rule on
immature, deserves faith and credence[10] for it simply pedigree, the question on the relative weight that may be
would be unnatural for a young and innocent girl to accorded to it is a totally different matter.[17]
invent a story of defloration, allow an examination of her
private parts and thereafter subject herself and her In the case at bar, the complainant claimed that she
family to the trauma of a public trial unless she indeed was 13 years old at the time of the incident. [18] Her
has spoken the truth.[11] Most especially, a daughter mother stated, however, that she was 14. [19] The birth
would not accuse her own father of such a serious certificate of the victim, at least already in her teens, was
offense or allow herself to be perverted if she were not not presented to ascertain her true age on the bare
truly motivated by a desire to seek a just retribution for a allegation that the document was lost when their house
violation brazenly committed against her. [12] burned down.[20] No other document that could
somehow help establish the real age of the victim was
Confirming Marilous story was the medical report submitted.
and testimony of Dr. Reinerio Jalalon, the government
physician stationed at the Bunawan District Hospital in The Court, in sum, upholds the decision of the trial
Agusan del Sur, who examined Marilou. Dr. Jalalon made court convicting Leonardo Fabre of the crime of rape but
these findings; viz: must reduce, on account of insufficiency of proof on the
qualifying circumstance of minority of the victim, the
Abrasion at (L) labia minora at 3:00 oclock position. penalty of death to reclusion perpetua. With respect to
Vaginal smear (-) negative for spermatozoa.[13] the civil liability, the Court sustains the award of
P50,000.00 civil indemnity but, in keeping with prevailing
The doctor concluded that it was possible that genital jurisprudence, must additionally order the payment of
penetration on the victim did occur and that a penis P50,000.00 moral damages[21] and P20,000.00 exemplary
could have caused the abrasion on the victims labia damages.[22]
minora.
WHEREFORE, the judgment of the court a
There is merit, however, in the plea of the defense, quo finding LEONARDO FABRE guilty of rape is AFFIRMED
seconded by the prosecution, that the penalty of death but the sentence of death therein imposed should be, as
imposed by the trial court should be reduced to the it is hereby so, reduced to reclusion perpetua. The award
penalty of reclusion perpetua. Article 335 of the Revised of P50,000.00 civil liability in favor of victim, Marilou
Penal Code, as amended by Section 11 of Republic Act Fabre, is sustained; however, appellant is further ordered
No. 7659, provides: to pay to the victim the amounts of P50,000.00 moral
damages and P20,000.00 exemplary damages.
The death penalty shall also be imposed if the crime of
rape is committed with any of the following attendant SO ORDERED
circumstances:

1. when the victim is under eighteen (18) years

of age and the offender is a parent,
ascendant, stepparent, guardian,
relative by consanguinity or affinity
within the third civil degree, or the
common-law-spouse of the parent of
the victim.
 [G.R. No. 142556. February 5, 2003] victims mother, Hermie Ponseca; the victims father, Osias
Ponseca; Virginia Espejo Giron; and Dr. Editha dela Cruz
Divino. On the other hand, the defense presented
appellant and his employer, Bartolome Tolentino.
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. JESUS PEREZ y SEBUNGA, accused- The Office of the Solicitor General (OSG for brevity)
appellant. summarized the prosecutions version of the incident in
the appellees brief, to wit:
DECISION
On January 17, 1997, about noontime, in Sitio Baco,
PER CURIAM: Barangay Macarang, Palauig, Zambales, six-year old
Mayia Ponseca was walking along Sulok on her way to
For automatic review is the Decision [1] dated her house in Sitio Camiling when appellant Jesus Sebunga
October 26, 1999 of the Regional Trial Court of Iba, Perez approached her (pp. 7-8, TSN, December 15,
Zambales, Branch 69, in Criminal Case No. RTC-2116-I, 1998). Appellant introduced himself as Johnny and
finding appellant Jesus S. Perez (appellant for brevity), immediately afterwards, strangled her neck and boxed
guilty of raping Mayia P. Ponseca (Mayia for brevity) and her abdomen (p. 10, TSN, December 15, 1998). Still in
imposing on appellant the death penalty. shock, Mayia fell down (id.). At that point, a dog arrived
and barked at them.
On January 22, 1997, the Second Assistant
Provincial Prosecutor[2] of Zambales filed an
Appellant then proceeded to lower his black denim pants
[3]
Information charging appellant with the crime of rape
while simultaneously removing Mayias panty. He then
penalized under Article 335 of the Revised Penal Code in
inserted his penis inside Mayias vagina (p. 11, id.). Mayia
relation to Section 5 (b), Article III of Republic Act No.
felt excruciating pain in her private parts (sic) but was not
7610, committed as follows:
able to repel her aggressor whose strength and weight
That on or about the 17th day of January, 1997 at 12:00 totally engulfed her. Her only recourse was to cry while
noon at Sitio Baco, Brgy. Macarang, in the Municipality of her young body was being ravished (p. 13, id.).
Palauig, Province of Zambales, Philippines, and within the
jurisdiction of this Honorable Court, the said accused, After satisfying his beastly desires, appellant raised his
with lewd design and by means of coercion, inducement pants and ran away (p. 14, id.). Notwithstanding that her
and other consideration, did then and there, wilfully (sic), vagina was bleeding profusely and her dress now covered
unlawfully and feloniously have sexual intercourse with with her own blood, Mayia managed to stand up and
one Mayia P. Ponseca, a minor of 6 years old, without her seek help. She ran to the house of Virginia Giron, which
consent and against her will, to the damage and was only fifty (50) meters away from the scene of the
prejudice of the latter. crime. In fact, Giron was outside when she heard her dog
barking (apparently, it was the same dog barking at
Upon arraignment, appellant, assisted by appellant while he was consummating his lust on Mayia,
counsel de officio Atty. Genaro N. Montefalcon, pleaded pp. 2-3, TSN, January 12, 1999; p. 11, TSN, December 15,
not guilty to the offense charged.[4] Subsequently, the 1998). Looking at the direction of the noise, she saw a
trial court allowed the withdrawal of Atty. Montefalcon as confused Mayia approaching her with blood dripping
counsel for health reasons. The trial court appointed Atty. from her private parts and thighs. When Giron asked
Roberto Blanco as appellants counsel de oficio.[5] Mayia what happened, the latter shouted ni-rape ako, ni-
rape ako (p. 4, TSN, January 4, 1999).Giron then
At the pre-trial, the prosecution and defense summoned her husband and other companions to look
stipulated on the following facts: for Mayias attacker but was unable to find him. Giron
1. The identity of the accused; then proceeded to Hermie Ponseca and Osias Ponseca,
Mayias parents, to inform them of what happened (p. 5,
TSN, January 5, 1999; p. 2, TSN, January 19, 1999).
2. The accused was at the time of the incident in the
vicinity thereof;
When her parents asked Mayia if she knew her assailant,
the latter answered the name Johnny. (id.) The couple
3. The victim in this case, Mayia P. Ponseca, was born on
brought their daughter to the President Ramon
23 May 1990 as evidenced by her birth certificate;
Magsaysay Memorial Hospital for medical examination
(p. 2, TSN, February 24, 1999). She was examined by Dra.
4. That after the incident, the child was subjected to a Editha Dela Cruz Divino, who issued a medico-legal
medico-legal examination to which a medico-legal certificate dated January 23, 1997 stating the following:
certificate was issued by Dr. Editha Divino.
a. Bleeding of genitalia coming from median
The prosecution marked in evidence the birth certificate laceration at the vaginal floor
of the victim Mayia O. Ponseca as Exhibit A, and the around four (4) centimeters in
medico-legal certificate issued by Dr. Editha Divino as size. Possible cause, a fall and
Exhibit B.[6] then hitting a sharp object and
also an alleged sexual assault
Thereafter, trial ensued. The prosecution presented (p. 4, TSN, February 24, 1999).
the following witnesses: the victim, Mayia Ponseca; the
 b. Genitalia had hymenal lacerations at 3, 6, 9 In his brief, appellant raises the following lone
and 12 oclock positions. assignment of error:
THE COURT A QUO GRAVELY ERRED IN FINDING THAT
(pp. 4-6 id.)
THE GUILT OF THE APPELLANT HAS BEEN PROVEN
BEYOND REASONABLE DOUBT.
Because of the extent of the damage on her genitals,
Mayia undertook an IV sedation operation to repair her
Appellant contends that his identification in open
lacerations (p. 6, id.) During her confinement at the
court by Mayia was highly irregular. Appellant points out
hospital, the Ponseca couple reported the incident to the
that the prosecutor had already identified him as the
Palauig PNP Police Station and recounted their daughters
man wearing an orange t-shirt when the prosecutor
narration including the name of the culprit as Johnny
asked Mayia to identify her alleged rapist. Appellant
who, according to their neighbors, was a worker at the
stresses that when Mayia identified him in open court,
fishpond of Bartolome Tolentino (pp. 11-12, TSN, January
she referred to him as a man named Johnny and did not
5, 1999). Police operatives then proceeded to the said
give any description or any identifying mark. Moreover,
fishpond and arrested appellant. After her discharge from
appellant claims he was alone in the cell when Mayia
the hospital, Mayia learned that appellant was already
identified him after the police arrested him. Appellant
apprehended (pp. 3-8, TSN, January 5, 1999). In the
bewails that the identification was not done with the
police station, she was able to positively identify the
usual police line-up.
appellant as the person who sexually assaulted her (p.
18, TSN, December 15, 1998).[7] Appellants contention is untenable.
As a rule, leading questions are not
Appellant denied raping Mayia. Appellant testified
allowed. However, the rules provide for exceptions when
that on the date of the alleged rape incident, he was
the witness is a child of tender years [13] as it is usually
working at a fishpond at Macarang, Zambales. He heard
difficult for such child to state facts without prompting or
of the rape of a young girl from his manager, Bartolome
suggestion.[14] Leading questions are necessary to coax
Tolentino (Tolentino for brevity). [8] Appellant further
the truth out of their reluctant lips. [15] In the case at bar,
testified that on January 25, 1997, policemen went to the
the trial court was justified in allowing leading questions
fishpond where he worked. The policemen arrested
to Mayia as she was evidently young and unlettered,
appellant and brought him to the police station at
making the recall of events difficult, if not uncertain. [16] As
Palauig. Later, the policemen took him to the municipal
explained in People v. Rodito Dagamos:[17]
jail of Palauig.
The trend in procedural law is to give wide latitude to the
On cross-examination, appellant testified that his
courts in exercising control over the questioning of a child
nickname is not Johnny but Jessie. [9] He testified that on
witness. The reasons are spelled out in our Rule on
January 17, 1997, at around 12 oclock noon, he left the
Examination of a Child Witness, which took effect on
fishpond and walked home to Barangay Alwa which was
December 15, 2000, namely, (1) to facilitate the
about thirty meters from the fishpond.[10]
ascertainment of the truth, (2) to ensure that questions
The defense formally offered the testimony of are stated in a form appropriate to the developmental
witness Tolentino to prove that appellant was employed level of the child, (3) to protect children from harassment
as caretaker of Tolentinos fishpond for almost two years or undue embarrassment, and (4) avoid waste of
before the alleged rape incident. Appellant was time. Leading questions in all stages of examination of a
purportedly of good moral character while employed as a child are allowed if the same will further the interests of
fishpond caretaker. The prosecution admitted the offer of justice. The Court has repeatedly stated that it is highly
testimony. Hence, the trial court dispensed with the inconceivable for a child of tender age, inexperienced in
testimony of Tolentino in open court.[11] the ways of the world, to fabricate a charge of
defloration, undergo a medical examination of her private
After trial, the court a quo rendered judgment[12] on part, subject herself to public trial, and tarnish her
October 26, 1999, the dispositive portion of which reads: familys honor and reputation, unless she was motivated
WHEREFORE, foregoing considered, accused Jesus Perez by a strong desire to seek justice for the wrong
y Sabung (SIC) is found GUILTY beyond reasonable doubt committed against her.[18]
of the crime of Statutore Rape, defined and penalized
under Article 335 of the Revised Penal Code with the Mayia recounted her harrowing experience, thus:
qualifying circumstance that the victim was only 6 years
Q What time was this when Johnny introduced
old at the time of the commission of the offense, in
himself to you?
relation to Section 5 (b), Article III, Republic Act 7610, and
is sentenced to suffer the penalty of DEATH. Jesus Perez is A I do not recall, mam.
directed to pay to the private complainant the amount of
Seventy-Five Thousand Pesos (P75,000.00) as and by way Q Was it in the morning, noontime or in the
of civil indemnity and Fifty Thousand (P50,000.00) as and afternoon or in the evening?
by way of moral damages. A Noontime, mam.

Hence, this automatic review. Q So, when Johnny said, Ako si Johnny, what
did you do?
A None, mam. Q When his penis entered your vagina Mayia,
did he remove your panty?
Q After that when Johnny said, Ako si Johnny,
what happened? A Yes, mam.[19]
A He strangled (sinakal) me. The identity of appellant as the rapist has been
established by the clear, convincing and straightforward
Q Were there persons around in the place testimony of Mayia. During the trial, she testified as
when Johnny strangled you? follows:
A None, mam. Q Mayia, there is a man sitting wearing orange
Q So, what did he do then after he strangled t-shirt, do you know this man?
you? A Yes, mam.
A He boxed me on my stomach, mam. Q Do you know his name?
Q When he boxed you on your stomach, what A Yes, mam.
happened to you?
Q What is his name?
A I was shocked, mam.
A Johnny, mam.
Q Did you fall down?
Q Why do you know him?
A Before that, I was already lying down, so
when he boxed me, I was shocked. A Because he introduced himself to me.
Q You said that you were already lying Q Where did he introduced himself to you?
down. Who made you lie down?
A At Sulok, mam.
A The person, mam.
Q Sulok is a place?
Q Why were you shocked, Mayia?
A Yes, mam.
A Because he strangled me and boxed me.
Q Do you have any companion when this man
Q After he boxed you on your abdomen, what introduced himself to you?
happened? What else did he do to you?
A None, mam.
A There was a dog that arrived in the place
Q How did he introduce himself to you?
and it barked at us. Then Johnny moved
in a hurry by penetrating my private part A The man introduced himself to me by saying,
and after he dressing (SIC) me, he ran Kilala mo ba ako? Hindi po. Ako si Johnny.
away. [20]

Q You said that Johnny penetrated your private The trial court further asked Mayia:
part. With what instrument did he use in
penetrating your private part? Q You were talking of a certain Johnny. s this
Johnny in court now?
A His penis, mam.
A Yes, sir.
Q What was he wearing at that time?
Q Can you point to him?
A A black denim, mam.
A Yes, sir.
Q When he used his penis in entering your
private part, did he remove his pants? Q Point to him.

A No, mam. A (Witness pointing to the person sitting at the

accused bench and when asked of his
Q What did he do with his pants? name answered Jesus Perez)
A He brought out his penis, mam. Q Is this Johnny whom you point to the person
whom you saw in that Sulok?
Q You mean to say Mayia, he lowered his
pants? A Yes, sir. [21]
A Yes, mam. Mayias simple, positive and straightforward
recounting on the witness stand of her harrowing
Q What about you, were you wearing any
experience lends credence to her accusation. Her tender
panty?
age belies any allegation that her accusation was a mere
A Yes, mam. invention impelled by some ill-motive. As the Court has
stressed in numerous cases, when a woman or a child
Q What was your clothes at that time? victim says that she has been raped, she in effect says all
A A dress, mam. that is necessary to show that rape was indeed
committed.[22]Mayia had a clear sight of appellants face included Exhibit A, a certified true copy of Mayias birth
since the rape occurred at noontime.[23] Her proximity to certificate. The trial court admitted Exhibit A[31] without
appellant during the sexual assault leaves no doubt as to any objection from the defense.
the correctness of her identification for a man and
The purpose of pre-trial is to consider the following:
woman cannot be physically closer to each other than
(a) plea bargaining; (b) stipulation of facts; (c) marking for
during the sexual act.[24] Thus, even if Mayia did not give
identification of evidence of the parties; (d) waiver of
the identifying marks of appellant, her positive
objections to admissibility of evidence; (e) modification
identification of appellant sufficed to establish clearly the
of the order of trial if the accused admits the charge but
identity of her sexual assailant. Appellants claim that the
interposes lawful defenses; and (f) such matters as will
police improperly suggested to Mayia to identify
promote a fair and expeditious trial of the criminal and
appellant is without basis. True, Mayia did not identify
civil aspects of the case.[32] Facts stipulated and evidence
appellant in a police line-up when Mayia identified
admitted during pre-trial bind the parties. Section 4, Rule
appellant in his cell. However, appellant, in his testimony
118 of the Revised Rules of Criminal
admitted that he had two other companions in his cell.
[25] Procedure[33]provides:
Moreover, the Court has held that there is no law
requiring a police line-up as essential to a proper SEC. 4. Pre-trial order. - After the pre-trial conference, the
identification. Even without a police line-up, there could court shall issue an order reciting the actions taken, the
still be a proper identification as long as the police did facts stipulated, and evidence marked. Such order shall
not suggest such identification to the witnesses. [26]The bind the parties, limit the trial to matters not disposed
records are bereft of any indication that the police of, and control the course of the action during the trial,
suggested to Mayia to identify appellant as the rapist. unless modified by the court to prevent manifest
Mayias identification in open court of appellant as her injustice. (Emphasis supplied)
rapist dispels any doubt as to the proper identification of
appellant. Mayia positively identified and pointed to Moreover, Mayia herself testified in open court as
appellant as her rapist. We are satisfied that her to her age. During the trial on December 15, 1998, which
testimony, by itself, is sufficient identification of her was about twenty-three (23) months after the rape
rapist. As held in People v. Marquez:[27] incident occurred on January 17, 1997, Mayia testified on
xxx. Indeed, the revelation of an innocent child whose cross-examination that she was 8 years old last May 23.
[34]
chastity was abused deserves full credit, as the Thus, by deduction, since Mayia was born on May 23,
willingness of complainant to face police investigation 1990 as shown in her birth certificate, she was about six
and to undergo the trouble and humiliation of a public (6) years and seven (7) months old on January 17, 1997,
trial is eloquent testimony of the truth of her the day the crime took place. We rule that the
complaint. Stated differently, it is most improbable for a prosecution has indisputably proven that Mayia was
five-year old girl of tender years, so innocent and so below seven years old at the time appellant raped her.
guileless as the herein offended party, to brazenly impute Finally, the trial court was correct in imposing the death
a crime so serious as rape to any man if it were not true. penalty on appellant. Under Article 335 [35] of the Revised
In his Reply Brief, appellant contends that even assuming Penal Code, as amended by Section 11 of Republic Act
that the guilt of appellant has been proven beyond No. 7659,[36]the death penalty shall be imposed if the
reasonable doubt, the trial court erred in imposing the crime of rape is committed against a child below seven
death penalty.Appellant maintains that the death penalty (7) years old. Mayia was six (6) years and seven (7)
cannot be imposed on him for failure of the prosecution months old when appellant raped her. If rape is qualified
to prove Mayias age by independent evidence. Appellant by any of the circumstances[37] warranting the imposition
points out that while Mayias birth certificate was duly of the death penalty, the civil indemnity for actual or
marked during the pre-trial, it was not presented and compensatory damages is mandatory. [38] Following
identified during the trial. Appellant asserts that Mayias prevailing jurisprudence, the civil indemnity is fixed at
minority must not only be specifically alleged in the P75,000.00. In addition, moral damages of P50,000.00
Information but must also be established beyond should also be awarded to the rape victim without need
reasonable doubt during the trial. Appellants argument for pleading or proving it.[39]
deserves scant consideration. At the pre-trial, the parties WHEREFORE, the Decision dated October 26, 1999
mutually worked out a satisfactory disposition of the of the Regional Trial Court of Iba, Zambales, Branch 69, in
criminal case. Appellant, assisted by counsel, signed a Criminal Case No. RTC-2116-I, finding appellant Jesus S.
Pre-Trial Agreement[28] which, as incorporated in the Pre- Perez guilty beyond reasonable doubt of the crime of
Trial Order, stated that:x x x. qualified rape, sentencing him to suffer the death
penalty,[40] and ordering him to pay the victim Mayia P.
3. The victim in this case, Mayia P. Ponseca was born on Ponseca the amount of P75,000.00 as civil indemnity and
23 May 1990 as evidenced by her birth certificate; P50,000.00 as moral damages, is AFFIRMED in toto.

x x x. (Emphasis supplied) In accordance with Article 83 of the Revised Penal

Code, as amended by Section 25 of the Republic Act No.
7659, upon the finality of this Decision, let the records of
this case be forthwith forwarded to the Office of the
During the pre-trial, the prosecution marked in President of the Philippines for possible exercise of the
evidence Mayias birth certificate as Exhibit A. [29] The pardoning power. SO ORDERED.
prosecution submitted its Offer of Evidence[30] which
 [G.R. No. 139412. April 2, 2003] their house. She saw Jaime, Sr. holding a flashlight and his
two sons, Jaime Jr. and Ronald, on their way to the house.
THE PEOPLE OF THE PHILIPPINES, appellee, vs. JAIME Luz immediately alerted her husband and told him that
CASTILLANO, SR. alias Talino, RONALD the Castillanos were in their yard. However, Diosdado
CASTILLANO alias Nono and JAIME was nonchalant and simply told Luz not to mind them. All
CASTILLANO, JR. alias Junjun, accused, of a sudden, Jaime, Sr. fired his gun at Diosdados house.
RONALD CASTILLANO alias Nono and JAIME Terrified, Luz hastily carried her baby daughter Mary
CASTILLANO, JR. alias Junjun, appellants. Jane, sought cover and hid near the rear door. She was
about five meters away from her husband when the
DECISION Castillanos barged inside their house and ganged up on
CALLEJO, SR., J.: Diosdado. Jaime, Jr. and Ronald, armed with bladed
weapons, took turns in stabbing Diosdado. Ronald
This is an appeal from the Decision [1] of the Regional stabbed Diosdado on the right side of his breast, right
Trial Court of Pili, Camarines Sur, Branch 31, in Criminal thigh and on the back. He also struck him with a one-
Case No. P-2542, convicting appellants Ronald Castillano meter long pipe. Not satisfied, Jaime, Sr. fired his gun
alias Nono and Jaime Castillano, Jr. of murder, meting on hitting the right thigh of Diosdado. Luz was so shocked by
each of them the penalty of reclusion perpetua and the sudden turn of events. To silence her one year old
ordering them to pay, jointly and severally, damages to baby, she breastfed her. As soon as she could, Luz fled to
the heirs of the victim Diosdado Volante. the rice paddies where she hid for a time. The Castillanos
fled on board a jeep parked in the NIA road about 200
The Evidence or the Prosecution meters from the house of Diosdado. When Luz returned
to their house, she saw her husband sprawled on the
ground in a pool of his own blood. Diosdado, at the point
Diosdado Volante, who eked out a living as a farmer, of death, asked her for help. Not knowing what to do, Luz
his wife Luz,[2] and their four children lived in their lost no time and ran to the house of their neighbor
farmland located in the outskirt of Sitio Danawan, Celedonio Espiritu for help. Celedonio rushed to the Bula
Barangay Sagrada, Bula, Camarines Sur. Police Station and reported the incident.
About 200 meters away from Diosdados farmland A team composed of SPO4 Jaime Javier, SPO3 Jaime
was the farmhouse of Jaime Castillano, Sr. [3] He tasked his Bellano and SPO3 Nilo Fornillos, [8] the duty investigator,
son, Jaime Castillano, Jr., to take care of the farmhouse [9]
went to the crime scene[10] to conduct an on-the-spot
and allowed him to reside there. [4] Jaime, Sr., his wife investigation. Photographs were taken of the cadaver.
Concepcion, their son Ronald (Nono) Castillano and other [11]
SPO3 Fornillo drew rough sketch [12] of the scene. The
children lived at their family residence in Sagrada, Bula, policemen saw a bolo at the place where Diosdado was
Camarines Sur, approximately three kilometers away sprawled near the door of their house. A scabbard of a
from their farmhouse in Sitio Danawan. [5] bolo was found a meter away from the house of
Sometime in the early part of June 1996, [6] Jaime, Sr. Diosdado.[13] The policemen also found a bullet hole on
fired his gun indiscriminately. Afraid that a stray bullet the wall of the house.[14] Thereafter, the cadaver was
might hit any member of his family, Diosdado accosted placed on a hamak [hammock] brought to the police
Jaime, Sr. and asked him to desist from firing his gun station. The police investigators turned over the scabbard
indiscriminately. Jaime, Sr. resented the intrusion. He and bolo to the desk officer of the police station.[15]
remonstrated that neighbors did not even complain From the police station, SPO4 Javier, SPO3 Bellano
about him firing his gun. A heated altercation ensued. and Sgt. Rogelio Palacio boarded their mobile police car
Jaime, Sr. then fired his gun towards the house of and set out a manhunt for the malefactors. They
Diosdado. The incident germinated deep animosity proceeded towards the boundary in Sto. Domingo where
between the two and their respective families. [7] Jaime, they put up a checkpoint. The police officers inspected
Sr. always carried a bolo whenever he passed by the every vehicle that passed by. At around 12:45 a.m., SPO4
house of Diosdado. Javier halted a passenger jeepney. On board were Jaime,
On July 8, 1996, between 5:00 p.m. to 6:00 p.m., Sr. and his two sons, Jaime Jr. and Ronald, each of whom
Levy Avila, a teacher, was in his house doing some carried a bag containing their clothes. The policemen
repairs. He noticed Jaime, Jr. and Ronald talking by the brought the Castillanos to the police station. [16] The bags
roadside near the gate of his (Levys) house. Levy of Jaime, Jr. and Ronald were turned over to the police
overheard the two planning to go to Diosdados house. investigators. The three were placed under arrest for the
Jaime, Jr. and Ronald even told Levy: Ayaw namin kasing killing of Diosdado. The policemen submitted their
inaasar. Suspecting that the two were intending to harm investigation report.[17]
Diosdado, Levy urged them to amicably settle their In the meantime, at 7:00 a.m., Dr. Evangeline
differences with Diosdado. Consolacion, the Municipal Health Officer of Bula,
At around 8:00 p.m., Luz and Diosdado were about conducted an autopsy on the cadaver of Diosdado. Her
to retire for the night. Their children were already fast autopsy report revealed the following findings:
asleep. Diosdado was tired after a days work of spraying External Findings
chemicals at the rice field. He reclined on a bamboo
bench near the main door of their house. A kerosene
1. Incise Wound 3 cm Superior pinna R ear
lamp lighted the house. Suddenly, Luz heard voices near
2. Incise woud (sic) 10 cm. from nasal bridge extending to of Bula, Province of Camarines Sur, Philippines, and
mandible R within the jurisdiction of this Honorable Court, the
above-named accused conspiring, confederating and
3. Stab wound 2 cm.x 5 cm. Epigastrium R mutually helping one another with intent to kill with
treachery and evident premeditation armed with a
4. Stab wound 2 cm.x 4 cm. Epigastrium L handgun, bladed weapon and piece of wood did then
and there wilfully, unlawfully and feloniously attack,
assault and shot and stab one DIOSDADO VOLANTE y
5. Stab wound 2.5 cm. Middle third Arm R
LOZANO inflicting upon the latter several mortal wounds
on the different parts of his body which caused his
6. Stab wound 2cm x 5 cm. posterior Back. instantaneous death, to the damage and prejudice of the
heirs of said Diosdado Volante the amount of which to be
7. Amputating middle third finger L proven in Court.

8. Hacked wound posterior ankle L ACTS CONTRARY TO LAW.[27]

9. Gunshot wound POE 2 x 2cm. with contusion Upon their arraignment[28] on August 29, 1996,
collar medial aspect middle third R accused Jaime Sr., Jaime, Jr and Ronald, duly assisted by
thigh counsel de parte, Atty. Avelino Sales Jr., pleaded not
guilty to the offense charged. Thereafter, trial on the
No point of exit noted merits ensued.
Luz testified that when Diosdado was still alive, he
Internal Findings:
had an annual income of over P65,000. She spent
P18,000 for the funeral services, [29] P300 for religious
Fracture femur with Foreign body bullet lodge in middle services,[30] P9,111 for food and other expenses[31] during
third femur with hematoma about about 100 cc R thigh her husbands wake and funeral. She suffered sleepless
nights and mental anguish for his sudden death.
Cause of Death; Hypovolemia secondary to Multiple Stab
Wound[18] The Defenses and Evidence of the Accused

The doctor recovered a slug from the right thigh of

Ronald admitted when he testified that he killed
Diosdado. She later signed the victims post-mortem
Diosdado but insisted that he did so in self-defense and in
certificate of death.[19] Senior Inspector Edgardo B.
defense of his brother Jaime, Jr. He asserted that his
Sambo, Chief of Police of Bula Police Station, filed with
father Jaime, Sr. and brother Jaime, Jr. had nothing to do
the Municipal Trial Court of Bula, Camarines Sur, a
with Diosdados death. Ronald alleged that on September
criminal complaint[20] for murder against the Castillano
8, 1996, at about 7:30 p.m., he was driving a passenger
brothers.[21] Judge Francisco O. Tolentino conducted the
jeepney on his way to the poblacion of Bula. Jaime, Jr.
preliminary examination and thereafter issued an order
flagged down the jeepney. He boarded the jeepney and
of arrest against the Castillanos. [22] No bail was
told Ronald that he was instructed by their mother to go
recommended for their provisional release. On July 9,
to the house of Jose del Socorro to ask the latter to
1996, Luz gave a sworn statement to the police
accompany them to their farmhouse in order to fetch
investigators.[23]
Gilda Albes. Ronald was armed with a .38 paltik gun,
On July 10, 1996, the accused were transferred to while Jaime, Jr. was armed with a bolo sheathed in a
the Tinangis Penal Farm. Senior Inspector Sambo scabbard. They fetched Jose and then Ronald parked the
requested the PNP-CLRU5 Provincial Unit to conduct a jeepney at the NIA road. Jaime, Jr., who was holding a
paraffin test on the Castillanos.[24] flashlight, walked along the footpath on top of a pilapil (a
narrow earthen barrier between two rice fields). Ronald
On July 12, 1997, Major Lorlie Arroyo, the Head and Jose walked behind Jaime, Jr. As they passed by the
Forensic Chemist of PNP-Region 5, conducted the paraffin house of Diosdado, a man suddenly shouted: you shit, I
test on the Castillanos. Ronald was found positive for have await (sic) for you for a while, why just now.
gunpowder residue.[25]Jaime, Sr. and Jaime, Jr. were found Surprised, Jaime, Jr. forthwith focused his flashlight
negative for gunpowder residue. towards the man who shouted. He was aghast when he
The MTC issued a subpoena requiring the accused saw Diosdado armed with a bolo running towards them
to submit their counter-affidavits from notice thereof. and about to attack them with his bolo. Ronald shoved
However, the accused failed to submit any counter- Jaime, Jr. who fell on the muddy rice paddies below
affidavit.[26] the pilapil. Ronald forthwith shot Diosdado. Diosdado
took a step but fell on a kneeling position. Diosdado
On August 2, 1996, an Information for murder was brandished his bolo. Ronald shot Diosdado once more
filed against Jaime, Sr., Ronald and Jaime Jr. with the but his gun misfired. To defend himself, Ronald took
Regional Trial Court of Pili, Camarines Sur, Branch 31. The Jaime, Jr.s bolo and hacked Diosdado to death. [32] Ronald
accusatory portion of the Information reads: then fled from the scene and ran to the jeepney at the
NIA road. Jaime, Jr. and Jose boarded the jeep and left
That on or about the 8th day of July 1996 at about 8:00
oclock in the evening at Barangay Sagrada, Municipality
the scene. Ronald threw the bolo along the way. He The Verdict of the Trial Court
threw his gun into a rice farm in Danawan.
Jaime, Jr. corroborated the testimony of his brother. On December 22, 1998, the trial court rendered a
He, however, testified that he did not see his brother decision convicting Jaime, Jr. and Ronald of murder
hack and kill Diosdado. He claimed that when Ronald got qualified by evident premeditation and treachery. The
hold of his bolo, he ran away and proceeded to their trial court exonerated Jaime, Sr. of the crime on
jeepney which was then parked at the roadside. Minutes reasonable doubt. The trial court gave no credence to
later, Ronald followed. They then hastily went home to Ronalds claim that he acted in self-defense. The decretal
Sagrada and told their father Jaime, Sr. of the incident. [33] portion of the decision reads:
Jose Del Socorro corroborated the testimony of WHEREFORE, in view of all the foregoing, judgment is
Ronald. He testified that on July 8, 1996, at about 5:00 hereby rendered, finding the two (2) accused RONALD
p.m. he was on his way home when he met Diosdado CASTILLANO and JAIME CASTILLANO, JR. guilty beyond
whom he noticed to be inebriated and unruly Diosdado reasonable doubt of the offense of MURDER and they are
was throwing dried mud at the farmhouse of the hereby sentenced to suffer the penalty of imprisonment
Castillanos and challenging the occupants of the of RECLUSION PERPETUA with all the accessory penalties
farmhouse to a fight. He advised Diosdado to stop what imposed thereby. Further, as civil liability, the said two (2)
he was doing and warned him that he was only inviting accused are hereby ordered to pay the legal heirs of the
trouble. Diosdado told him to mind his own business and late Diosdado L. Volante, through his widow Luz R.
not to intervene. Jose thereafter left Diosdado and went, Volante, the total sum of ONE HUNDRED SEVENTY-SEVEN
home.[34] When Jose arrived home, Dominador Bria was THOUSAND FOUR HUNDRED TWENTY ONE PESOS
waiting for him. He and Dominador talked business for a (P177,421.00) Philippine Currency as actual and moral
while and subsequently had dinner. After some time, damages including death indemnity, with costs against
Jaime, Jr. and Ronald arrived at Joses house. both accused.
Concepcion Castillano testified that on July 8, 1996
at around 5:00 a.m., her son Jaime, Jr. arrived home and The accused Jaime Castillano, Sr. is hereby acquitted on
told her that Diosdado threw stones at their farmhouse the ground of reasonable doubt.
and challenged everybody to a fight. She felt nervous and
reported the incident to the police and caused the same SO ORDERED.[40]
to be entered in the police blotter. [35] Thereafter, she went
home and told her sons Jaime, Jr. and Ronald to The accused, now appellants, interposed their
immediately fetch Gilda. She, likewise, instructed her appeal from the decision of the trial court contending
sons to first drop by the house of Jose so that the latter that it committed reversible errors:
could accompany them to the farmhouse.
(a) in rejecting appellant Ronalds plea of self-
Jaime, Sr. vehemently denied any participation in defense; and (b) in not acquitting appellant Jaime, Jr. of
the killing of Diosdado. He claimed that at the time of the the crime charged for failure of the prosecution to prove
alleged incident, he was at their house in Sagrada, his guilt beyond reasonable doubt.
bedridden due to his debilitating diabetes. He narrated to
the trial court his medical history and his confinement at Anent the first issue, appellant Ronald posits that he
the Mandaluyong Medical Center sometime in 1994. adduced proof that he acted in self-defense when he
[36]
He presented documents and receipts showing that he stabbed the victim.
had been and is still under medication.[37] He declared The Court disagrees with appellant Ronald. The
that upon learning from his son Ronald that the latter Court has consistently held that like alibi, self-defense is
killed Diosdado, he advised his sons to look for a lawyer inherently weak because it is easy to fabricate. [41] In a
for legal representation. He told the trial court that at case where self-defense and defense of relatives is
around 11:30 p.m., he and his two sons had decided to invoked by the accused, the burden of evidence is shifted
go to Andangnan in order to meet a cousin of his who to him to prove with clear and convincing evidence the
knew of a lawyer named Atty. Rotor. As they traversed essential requisites of self-defense, namely (a) unlawful
the road to Andangan, they were stopped by some aggression on the part of the victim; (b) reasonable
policemen at a checkpoint and were invited to the police necessity of the means employed to repel or prevent it;
station where they were investigated and eventually and (c) lack of sufficient provocation on the part of the
incarcerated.[38] person defending himself. There can be no complete or
Gilda Abes, the last witness for the defense, incomplete self-defense or defense of relatives unless the
affirmed that she was the girlfriend of Jaime, Jr. She told accused proves unlawful aggression on the part of the
the trial court that on July 8, 1996 she was at the victim.[42] The accused must rely on the strength of his
farmhouse of the Castillanos. She corroborated the evidence and not on the weakness of the evidence of the
testimony of Jose that Diosdado was combative and prosecution for by pleading self-defense, the accused
drunk. According to Gilda, Jaime, Jr. left the farmhouse thereby admits having killed the victim and he can no
before sundown to go to his parents place at Sagrada. longer be exonerated of the crime charged if he fails to
Jaime, Jr. never returned to the farmhouse that night. prove the confluence of the essential requisites for self-
Gilda learned of the incident the next morning when she defense and defense of a relative.[43]
went home.[39] Appellant Ronald failed to discharge his burden.
 First. After shooting and stabbing Diosdado, trial that appellant Ronald, for the first time, invoked self-
appellant Ronald fled from the situs criminis. Flight from defense and defense of a relative.
the situs of the crime is a veritable badge of guilt and
Fourth. The cadaver of the victim was found inside
negates his plea of self-defense.[44]
his house when the police investigators arrived.[48] This
Second. Appellant Ronald threw away his paltik .38 belies appellant Ronalds claim that he shot the victim in
gun and the bolo he used in hacking Diosdado as he fled the rice paddies, near his house and that he (appellant
from the scene of the crime instead of surrendering the Ronald) took the bolo of appellant Jaime, Jr. and used it
same to the police authorities. Appellant Ronald to stab the victim. Appellant Ronald failed to prove his
admitted that he had no license for the gun: claim that when the police investigators arrived in the
victims house, they carried his (the victims) body from
Q Where is that gun now that you use? the rice paddies to the house. The only evidence adduced
A I do not know, Your Honor, I think I was able by appellant Ronald was his testimony which is hearsay,
to throw it away. and besides being hearsay, it is speculative and mere
conjecture.
Q Where?
Fifth. Appellant Ronald hacked the victim no less
A At Danawan, Your Honor. than five times. Two of the stab wounds sustained by the
Q Danawan, is that a lake? victim were at his back and posterior portion of his left
ankle. The number and nature of the wounds of the
A No, Your Honor, it is a ricefarm. victim negate the appellants claim that he shot the victim
in self-defense. On the contrary, they prove that
Q What kind of gun is this?
appellant Ronald was determined to kill the victim. [49]
A Paltik .38, Your Honor.[45]
Appellant Jaime, Jr. avers that the prosecution failed
ATTY. BALLEBAR: to prove his guilt beyond reasonable doubt of the crime
charged. He asserts that the testimony of Luz Volante,
q By the way, where is that bolo that you used the widow of Diosdado, was inconsistent with her
in hacking and stabbing Diosdado testimony during the preliminary examination in the
Volante? municipal trial court and her sworn statement before the
a I do not know anymore because I was able to police investigators as well as the testimonies of SPO1
throw it away also when I ran away. Fornillos and SPO4 Jaime Favier, and the physical
evidence on record. The appellant catalogued said
q Where is that place where you throw it? inconsistencies, thus:
a It was by the NIA road. 1. He was lying on the bench inside just upon
entering. (Tsn p. 9, 2/17/97).
q You mentioned also a while ago that this gun
that you said is a paltik and you throw it -I was lying down with my husband inside our
away also, is it not? house but we were still awake (9th Answer,
Prel. Exam. MTC, 7/9/96).
a Yes, Maam.
2. JCS fired towards our house hitting the wall
q And that gun had been in your possession
(Tsn p. 11, 2/17/96).
the whole day that you are driving up to
the time you shot the victim, Diosdado JCS fired twice (16th answer, Prel. Exam. MTC,
Volante? 7/9/96).
a Yes, Maam. JCS kept on firing the gun pointing towards the
body of my husband (9th Answer, Sworn
q Do you have license to possess that firearm?
Statement, PNP, 7/9/96).
a None, Maam.[46]
JCS shot my husband three (3) times (Tsn p. 16,
The failure of appellant Ronald to surrender the 2/17/97)
bolo and his gun to the police authorities belies his claim
3. My husband was shot and hit on the right
of self-defense.
thigh (Tsn p. 14, 2/17/97). He was hit on
Third. Appellant Ronald failed to report the incident the left lap (23rd Answer, Prel. Exam. MTC,
to the police authorities even when they arrested him. 7/9/96). He was hit on his side (Tsn p. 43,
Curiously, he failed to inform the police officers who 2/17/97).
arrested him that he acted in self-defense when he shot
4. RC struck my husband with a 1-meter long
and stabbed the victim The resounding silence of the
Pipe (Tsn p. 13, 2/17/97). RC & JCJ
appellant is another indicium of the incredibility of his
smashed my husband with a hard object
defense.[47] Moreover, the records show that the
(5th Answer, Sworn Statement, 7/9/96).
municipal trial court issued a subpoena on July 9, 1996
requiring appellant Ronald to submit his counter-affidavit RC smashed my husband (22nd Answer,
but he refused and/or failed to submit the same despite Prel. Exam. MTC, 7/9/96).
service on him of the subpoena. It was only during the
 5. He was not able to fight back (Tsn p. 43, evidence consisting of his prior statements which are
2/17/97). He was standing and was trying inconsistent with his present testimony, the cross-
to parry the attack of the accused (26th examiner must lay the predicate or the foundation for
Answer, Prel. Exam. 7/9/96). impeachment and thereby prevent an injustice to the
witness being cross-examined. The witness must be given
6. When I went back to the house, he was still a chance to recollect and to explain the apparent
alive (Tsn p. 19, 2/17/97). - LV Yes, the inconsistency between his two statements and state the
victim could have died instantly (Tsn p. 35, circumstances under which they were made. [51] This
2/3/97) With wounds sustained, he could Court held in People v. Escosura[52] that the statements of
have died instantly (p. 8, Complainants a witness prior to her present testimony cannot serve as
Memorandum). basis for impeaching her credibility unless her attention
7. It was bright inside our house with a was directed to the inconsistencies or discrepancies and
kerosene and a bottle lamp (Tsn pp. 33-34, she was given an opportunity to explain said
2/17/97). Only one kerosene lamp - bottle inconsistencies. In a case where the cross-examiner tries
of gin with wick and light (Tsn p. 10, to impeach the credibility and truthfulness of a witness
4/1/97 - SPO1 Pornillos via her testimony during a preliminary examination, this
Court outlined the procedure in United States vs.
Surrounding house, dark, total darkness Baluyot,[53] thus:
(Tsn pp. 12-13, 4/1/97).
...For instance, if the attorney for the accused had
8. Scene Photography by Jaime Jornales information that a certain witness, say Pedro Gonzales,
(Tsn, p. 21, 2/17/97). had made and signed a sworn statement before the fiscal
-do- by Mr. Lozano (Tsn., p. 12, 3/7/97). materially different from that given in his testimony
before the court, it was incumbent upon the attorney
9. SPO1 Nilo Pornillos learned of the when cross-examining said witness to direct his attention
incident at 8:00 oclock of July 8, 1996 to the discrepancy and to ask him if he did not make such
(page 5 of Complainants Memorandum. and such statement before the fiscal or if he did not there
make a statement different from that delivered in court.
SPO4 Jaime Javier received report at 9:00
If the witness admits the making of such contradictory
oclock P.M. of July 8, 1996 of Complainants
statement, the accused has the benefit of the admission,
Memorandum.
while the witness has the opportunity to explain the
SPO4 Jaime Javier received report at 8:00 discrepancy, if he can. On the other hand, if the witness
P.M. (page 7 of Complainants denies making any such contradictory statement, the
Memorandum).[50] accused has the right to prove that the witness did make
such statement; and if the fiscal should refuse upon due
On the other hand, the Office of the Solicitor notice to produce the document, secondary evidence of
General asserts that the credibility of the testimony of the contents thereof would be admissible. This process of
Luz, the prosecutions principal witness, cannot be cross-examining a witness upon the point of prior
impeached via her testimony during the preliminary contradictory statements is called in the practice of the
examination before the municipal trial court nor by her American courts laying a predicate for the introduction of
sworn statement given to the police investigators for the contradictory statements. It is almost universally
reason that the transcripts and sworn statement were accepted that unless a ground is thus laid upon cross-
neither marked and offered in evidence by the appellants examination, evidence of contradictory statements are
nor admitted in evidence by the trial court. Moreover, not admissible to impeach a witness; though
the appellants did not confront Luz with her testimony undoubtedly the matter is to a large extent in the
during the preliminary examination and her sworn discretion of the court.
statement to the police investigators. Luz was not,
therefore, accorded a chance to explain the purported
In this case, the appellants never confronted Luz
inconsistencies, as mandated by Section 13, Rule 132 of
with her testimony during the preliminary examination
the Revised Rules of Evidence which reads:
and her sworn statement. She was not afforded any
How witness is impeached by evidence of inconsistent chance to explain any discrepancies between her present
statement. - Before a witness can be impeached by testimony and her testimony during the preliminary
evidence that he has made at other times statements examination and her sworn statement. The appellants did
inconsistent with his present testimony, the statements not even mark and offer in evidence the said transcript
must be related to him, with the circumstances of the and sworn statement for the specific purpose of
times and places and the persons present, and he must impeaching her credibility and her present testimony.
be asked whether he made such statements, and if so, Unless so marked and offered in evidence and accepted
allowed to explain them. If the statements be in writing by the trial court, said transcript and sworn statement
they must be shown to the witness before any question is cannot be considered by the court.[54]
put to him concerning them.
On the purported inconsistencies or discrepancies
catalogued by the appellants relating to the testimony of
The Court agrees with the Office of the Solicitor Luz during the preliminary examination and her sworn
General. Before the credibility of a witness and the statement, the Office of the Solicitor General posits that:
truthfulness of his testimony can be impeached by
Sixth, Volante indeed testified that when she returned to simultaneous acts of stabbing the victim. As narrated by
their house from the ricefield, after the three accused Luz:
had left the premises, her husband was still alive (TSN,
February 17, 1997, p. 19) as he was still able to ask for
her assistance (Ibid, p. 20). But it is not inconsistent with ATTY. BALLEBAR:
the expert opinion of Dr. Consolacion that by the nature
of the wounds sustained by the victim, the latter could Q Now after Jaime Castillano Sr. fired at your
have died thereof instantaneously (TSN, February 3, house, what happened next if any?
1997, p. 35). It is clear that the said physician was merely A They entered our house.
stating a possibility and not what happened in the instant
case because in the first place, she was not present at the Q Now, when you say they to whom are you
scene right after the incident. referring to?
A Jaime Castillano Sr., Jaime Castillano, Jr., and
Seventh, Volante was insistent in her testimony that at Ronald Castillano.
the time of the commission of the subject crime, it was
bright inside their house because they had a kerosene Q Now, where did they enter?
lamp and a bottle lamp both lighted up, one placed on
A In the other door.
the wall and the other on the ceiling (Ibid, pp. 33, 52-
53). While it may appear contradictory to SPO1 Pornillos Q Now at the time they entered your house
testimony that there was only a kerosene lamp at the was the door of your house closed or
time, he could not have been expected to notice all the opened?
things found inside the house, including the bottle lamp,
because he might not have been familiar with its A It was closed.
interiors. Or, he could have focused his attention Q Now, after the accused entered your house
primarily on the body of the fallen victim and the objects what happened next, if any?
that may be used later as evidence against the
perpetrators of the crime. A Jaime Castillano Jr. stabbed my husband and
also Ronal Castillano stabbed my
Eight, it is admitted that the testimonies of Volante and husband.
SPO1 Pornillos as to who took pictures of the crime scene Q Now, was your husband hit by the stabbing
including the lifeless body of the victim are contradictory. of Ronald Castillano, Jr. (sic)?
But again, such contradiction, being only minor and
irrelevant, does not affect the credibility of their A Yes, sir.
testimonies.
Q Will you tell us on what part of his body was
he hit?
And ninth, the apparently inconsistent statements of the
prosecution witnesses (SPO1 Pornillos and SPO4 Javier) A My husband was still struck by Ronald
as to the exact time the subject incident was reported to Castillano hitting him on his right side of
the police authorities are similarly irrelevant to the his body including on his right thigh and
matters in issue. Of consequence here is the fact that on also on his back..
the night the crime was committed, it was reported to
ATTY. BALLEBAR:
the authorities who later effected the arrest of the
perpetrators thereof.[55] Q Now, you said Ronald Castillano struck your
husband, now with what instrument did
The Court fully agrees with the foregoing he use in strucking (sic) your husband?
ruminations of the Office of the Solicitor General. The
inconsistencies adverted to by the appellants pertained ATTY. BERNALES:
only to minor and collateral matters and not to the We object, misleading, your Honor.
elements of the crime charged; hence, they do not dilute
the probative weight of the testimony. It bears stressing COURT:
that even the most truthful witness can make mistakes Witness may answer.
but such innocent lapses do not necessarily affect his
credibility. The testimonies of witnesses must be WITNESS:
considered and calibrated in their entirety and not by
A A pipe.
their truncated portions or isolated passages. [56] And then
again, minor contradictions among several witnesses of a ATTY. BALLEBAR:
particular incident and aspect thereof which do not
relate to the gravamen of the crime charged are to be Q Now, will you tell us more or less how long
expected in view of their differences in impressions, was that pipe that was used by Ronald
memory, vantage points and other related factors.[57] Castillano?

Contrary to appellant Jaime, Jr.s claim, the A About one (1) meter, Maam.[58]
prosecution adduced proof that he and appellant Ronald Luz was merely five meters away from where
conspired to kill and did kill Diosdado by their Diosado was attacked and stabbed by the appellants.
Appellant Jaime, Jr. even tried to cut the ankle of the with the trial courts finding that evident premeditation
victim: attended the commission of the crime.
Case law has it that the prosecution has the burden
to prove beyond reasonable doubt qualifying
ATTY. BALLEBAR: circumstances in the commission of the crime. For
Q Now during this incident, how far were you evident premeditation to qualify a crime, the prosecution
from the accused and your husband? must prove the confluence of the essential requites
thereof: (a) the time when the offender has determined
A From where I am sitting up to that window to commit the crime; (b) an act manifestly indicating that
which is about five (5) meters. the offender has clung to his determination; (c) an
Q Now after the accused strucked (sic) and interval of time between the determination and the
shot your husband, what else happened execution of the crime enough to allow him to reflect
if any? upon the consequences of his act. [61] There must be proof
beyond cavil when and how the offender planned to kill
A Jaime Castillano Jr. stabbed my husband on the victim and that sufficient time had elapsed between
his breast (Witness is pointing to her the time he had decided to kill the victim and the actual
breast). killing of the victim, and that in the interim, the offender
performed overt acts positively and conclusively showing
ATTY. BERNALES:
his determination to commit the said crime. [62] In this
We will move that the answer be striken off case, the only evidence adduced by the prosecution to
from the records because it is not prove evident premeditation is the testimony of Levy
responsive to the question. The question Avila that between 5:00 p.m. and 6:00 p.m. on July 8,
is after your husband has been stabbed 1996, he heard the appellants planning to go to the
strucked (sic) and shot. house of Diosdado and that he heard them say: Ayaw
namin kasing inaasar, and that at 8:00 p.m., the
COURT: appellants arrived in the house of the victim and stabbed
Q Your are being asked what happened after him to death. There is no evidence of any overt acts of
the accused was already stabbed, the appellants when they decided to kill Diosdado and
strucked (sic) and shot, what happened how they would consummate the crime. There is no
next? evidence of any overt acts perpetrated by the appellants
between 5:00 and 8:00 p.m. that they clung to their
WITNESS: determination to kill Diosdado.
Q Jaime Castillano Junior still stabbed my There is treachery in the commission of a crime
husband and try to cut his ankle, Your when (a) at the time of attack, the victim was not in a
Honor. position to defend himself; (b) the offender consciously
and deliberately adopted the particular means, methods
COURT:
and forms of attack employed by him. [63] Even a frontal
Strike our (sic) the previous answer of the attack may be treacherous when unexpected on an
witness. unarmed victim who would not be in a position to repel
the attack or avoid it.[64] In this case, the victim was
ATTY. BALLEBAR: unarmed and was supinely resting before sleeping after a
Q By the way, will you tell us how many times hard days work. Although Luz warned the victim that the
did Ronald Castillano stab your husband? appellants were already approaching their house,
however, the victim remained unperturbed when the
A I cannot determine how many times he even appellants barged into the victims house. They stabbed
stabbed my husband on his left eye. him repeatedly with diverse deadly weapons. The victim
had nary a chance to defend himself and avoid the fatal
Q How about Jaime Castillano Jr., how many
thrusts of the appellants.
times did he stab your husband?
The crime was committed in the house of the
A I cannot determine exactly how many times
victim. There was no provocation on the part of the
but he repeatedly stabbed my husband.
[59] victim. Dwelling thus aggravated the crime. However,
dwelling was not alleged in the information, as mandated
The mere denial appellant Jaime, Jr. of the crime by Section 8, Rule 110 of the Revised Rules of Criminal
charged is but a negative self-serving which cannot Procedure:
prevail over the positive and straightforward testimony of
Sec. 8. Designation of the offense. - The complaint or
Luz and the physical evidence on record.[60]
information shall state the designation of the offense
The Crime Committed by Appellants given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and
aggravating circumstances. If there is no designation of
The trial court correctly convicted the appellants of the offense, reference shall be made to the section or
murder, qualified by treachery, under Article 248 of the subsection of the statute punishing it.
Revised Penal Code. The Court, however, does not agree
 The use by appellant Ronald of an unlicensed Criminal Case No. P-2542 is AFFIRMED with
firearm to shoot Diosdado on the thigh is not an MODIFICATION. Appellants Ronald Castillano alias Nono
aggravating circumstance because (1) there is no and Jaime Castillano, Jr. alias Junjun are found guilty
allegation in the information that said appellant had no beyond reasonable doubt of murder, qualified by
license to possess the firearm. That appellant lacked the treachery, punishable by reclusion perpetua to death,
license to possess the firearm is an essential element of under Article 248 of the Revised Penal Code. There being
the crime and must be alleged in the information. no modifying circumstances in the commission of the
[65]
Although the crime was committed before the new crime, the appellants are sentenced to suffer the penalty
rule took effect on December 1, 2002, the rule should, of reclusion perpetua, conformably with Article 63 of the
however, be applied retroactively as it is favorable to the Revised Penal Code. They are, likewise, ordered to pay
appellants.[66] jointly and severally to the heirs of the victim, Diosdado
Volante, the amounts of P50,000 as civil indemnity;
The appellants are not entitled to the mitigating P50,000 as moral damages; P18,300 as actual damages;
circumstance of voluntary surrender. The evidence shows P25,000 as exemplary damages; and P5,000 as temperate
that the appellants were arrested when the police damages. Costs against the appellants.
officers manning the checkpoint stopped the passenger
jeepney driven by appellant Ronald and arrested the SO ORDERED.
appellants. The fact that the appellants did not resist but
Bellosillo, (Chairman), Mendoza,
went peacefully with the peace officers does not mean
Quisumbing, and Austria-Martinez, JJ., concur.
that they surrendered voluntarily.[67]
There being no mitigating and aggravating
circumstances in the commission of the crime, the
appellants should be meted the penalty of reclusion
perpetua conformably with Article 63 of the Revised
Penal Code.
The Civil Liabilities of the Appellants

The trial court awarded the total amount of

P177,421 as civil indemnity, actual and moral damages in
favor of the heirs of the victim Diosdado. The Court has
to modify the awards.
Appellants Ronald and Jaime, Jr. are obliged to pay
jointly and severally the amount of P50,000 as civil
indemnity; P50,000 as moral damages; P25,000 as
exemplary damages in view of the aggravating
circumstance of dwelling;[68] and the amount of P18,300
for funeral and religious services. The heirs of the victim
failed to adduce in evidence any receipts or documentary
evidence to prove their claim for food and other
expenses during the wake. However, they are entitled to
temperate damages in the amount of P5,000,
conformably with the ruling of the Court in People v.
dela Tongga.[69] His wife Luzs testimony that the victim
had an annual income of more than P65,000 is not
sufficient as basis for an award for unearned income for
being self-serving. There was no proof of the average
expense of the victim and his family and his net income.
In People v. Ereo,[70] this Court held that:
It bears stress that compensation for lost income is in the
nature of damages and as such requires due proof of the
damage suffered; there must be unbiased proof of the
deceaseds average income. In the instant case, the
victims mother, Lita Honrubia, gave only a self-serving
hence unreliable statement of her deceased daughters
income. Moreover, the award for lost income refers to
the net income of the deceased, that is, her total income
less her average expenses. No proof of the victims
average expenses was presented. Hence, there can be no
reliable estimate of the deceaseds lost income.
G.R. No. 90198 November 7, 1995
IN LIGHT OF ALL THE FOREGOING, the Decision of
the Regional Trial Court of Camarines Sur, Branch 31 in
PEOPLE OF THE PHILIPPINES, plaintiff-appellee, When arraigned, all the accused entered a plea of "not
vs. guilty" to the charge; whereupon, trial commenced.
ANTONIO PLASENCIA y DESAMPARADO alias "Tonying,"
ROBERTO DESCARTIN y PASICARAN alias"Ruby" and The prosecution sought to establish, as follows:
JOELITO (JULITO), DESCARTIN y PASICARAN, accused-
appellants. At around ten o'clock in the morning of 29 November
1984, Herminio Mansueto, wearing a blue and white
VITUG, J.: striped t-shirt, maong pants, Seiko 5 stop watch and
a pandan hat, left on his bicycle for Barangay Patao,
Antonio Plasencia, Roberto Descartin and Joelito (Julito) Bantayan, Cebu. He had with him P10,000.00 cash which
Descartin were accused of robbery with homicide in an he would use to purchase hogs from a certain "Ruby."
information, dated 20 December 1984, that read:
In Patao, Francisca Espina, also known in the locality as
That on or about the 29th day of November, 1984 at Pansing and whose house was just across the street from
around 3:00 o'clock in the afternoon, more or less, in the respective residences of the three accused, saw at
sitio San Juan, Barangay Patao, Municipality of Bantayan, the roadside Herminio Mansueto and Roberto
Province of Cebu, Philippines, and within the jurisdiction Descartin alias "Ruby" engaged in conversation. Pansing
of this Honorable Court, the said accused conspiring and approached them and asked Mansueto if he would be
confederating together and mutually helping one interested in buying two of her pigs for P1,400.00.
another, did then and there wilfully, unlawfully and Mansueto said "yes" and promised that he would be right
feloniously, and with treachery, evident premeditation back.
and taking advantage of their superior number and
strength and with intent to kill, treacherously attack, Mansueto and Ruby meantime proceeded to the latter's
assault and use personal violence upon Herminio piggery. Joelito Descartin and his brother-in-law Rene
Mansueto, thereby inflicting upon him the following were also seen going to the place. After some time,
physical injuries: Pansing noticed Joelito take Mansueto's bicycle. Believing
that Mansueto was already preparing to leave and in her
1. Stab wounds which was approximately two inches in desire to catch up with him, Pansing promptly walked
length, parallel to the ribs and is located 1 1/2 inches towards the piggery which was around 100 meters away
below the right nipple on the right anterior axillary line from her house. She could see Mansueto leaning on the
and on the fifth intercostal space. On probing the wound pigsty with Ruby on his right side and Antonio
was penetrating immediately up to the left parasternal Plasencia alias "Tonying" on his left; behind was
border approximately hitting the heart; Joelito.2 Midway, she was halted on her tracks; she
suddenly saw Antonio stab Mansueto. The latter
2. Hacking wound 9 inches in length extending from the staggered towards Ruby who himself then delivered
coracoid process of the left clavicle passing between the another stab blow. Mansueto fell on his back. Joelito
left anterior and the left mid axillary line up to the left started hitting Mansueto on the forehead while Rene
4th intercostal space including all muscle underlying the held Mansueto's legs.3 Except for a coconut tree and
skin exposing the ribs. some ipil-ipil trees around the area, nothing obstructed
Pansing's line of vision. Pansing rushed back home. The
Cause of death: Internal hemorrhage due to stab wound. image of Antonio waving the weapon and the thought
that she might herself be killed kept her from revealing to
anyone what she saw.4
After which the body was placed inside a plastic bag and
brought to an open sea by the pump boat owned by
Roberto Descartin y Pasicaran and operated by Joelito The following day, in Kodia, Madridejos, Cebu, where
Descartin y Pasicaran and dumped to the water by herein Mansueto resided, his daughter Rosalinda reported to
accused, and as a result of which said Herminio Francisca Tayo, the barangay captain, that her father had
Mansueto died, herein accused, in pursuance of their not returned home. Tayo proceeded to Putian, which was
conspiracy, wilfully, unlawfully and feloniously and with in Mansueto's itinerary, and then to Ruby's piggery in
intent to gain, took and carried away the personal Patao, where a youngster, who turned out to be Ruby's
property belonging to Herminio Mansueto, namely: one son, innocently informed her that Mansueto's bicycle was
(1) Seiko 5 "Stop Watch" valued at P3,000.00; one (1) taken by Joelito.5
Bicycle (standard size) valued at P1,000.00; and cash in
the amount of P10,000.00, all in the total amount of The day after, Francisca Tayo, accompanied by police
FOUR-TEEN THOUSAND PESOS (P14,000.00), Philippine officers of Madridejos, Cebu, and some relatives of
Currency, to the damage and prejudice of said oner (sic) Mansueto, went back to Ruby's place. On a railing of the
in the said total sum. pigpen, she saw blood stains. When she asked Ruby's
father about it, he said that the stains had come from
All contrary to law, and with the qualifying circumstance chicken blood. Going around the piggery, she also saw
of alevosia, and the generic aggravating circumstance of blood stains on a bamboo pole, which Ruby's father once
known premeditation. again so identified as chicken blood. At the back of the
piggery, Francisca noticed a digging which looked like an
empty grave. The digging was measured and photos were
CONTRARY TO LAW. 1
taken. The police found a hat at the back of a hut beside
the piggery, which was later recognized to be that which term "homicide" was used in the information in its
belonged to Mansueto.6 generic sense. 15 Finding conspiracy, the trial court ruled
that the killing was qualified by both treachery and abuse
In the morning of 30 November 1984, Patrolman Elpidio of superior strength with the latter, however, being
Desquitado of the Bantayan police went back to the absorbed by the former. No other aggravating or
piggery. This time, the police learned from Pansing mitigating circumstances being attendant in the
herself that Joelito took Mansueto's bicycle. 7 Joelito was commission of the crime, the trial court said, the penalty
invited to the police headquarters to shed light on the that could be imposed upon each of the accused
case. Later, Joelito, waiving his right to counsel, executed was reclusion perpetua with a joint and several civil
a "confession."8 liability for indemnification to the heirs of Herminio
Mansueto in the amount of P30,000.00.
Joelito narrated that, upon Ruby's instruction, he brought
the bicycle to the piggery. Unexpectedly, he said, Tonying The instant appeal was interposed by the three convicted
Plasencia stabbed Mansueto. Stunned, Joelito tried to appellants.
run away but Tonying stopped him. Tonying then dragged
the victim to a nearby house. Threatened by Tonying, Appellant Antonio Plasencia attacks the credibility of the
Joelito agreed to later return to where the victim's body prosecution's lone eyewitness, Francisca Espina, alleging
was dragged. At around eleven o'clock that evening, that she is a pejured witness who has an axe to grind
tonying and Joelito placed the body in a sack. Tonying against him because his dog had once bitten Francisca's
asked Ruby to allow the use of the latter's pumpboat to child. 16 He bewails the fact that it has taken Francisca
ferry the body. Tonying paddled the pumpboat to the until 29 December 1984 to reveal what she supposedly
island of Po-Po'o where he picked up some pieces of has seen to the police authorities. Contending that
stones. Then, again paddling the pumpboat farther away treachery has not been duly proven as "no wound was
from the island, he ordered Joelito to start the engine of inflicted at the back and as a matter of fact only one
the boat. They headed for the islet of Gilotongin wound was fatal," 17 appellant argues that even if
(Hilotongan). On the way, Tonying filled the sack with conspiracy were to be considered to have attended the
stones and, using a rope, tied to it the body of the victim. commission of the crime, he could be held liable with the
Tonying then unloaded their cargo into the sea. others, if at all, only for homicide.

Guided by Joelito, members of the Bantayan police force Appellant Roberto Descartin, likewise challenging
headed for the islet of Hilotongan on two pumpboats9 in Francisca Espina's credibility because of her alleged
the area pinpointed to be the place where the body was inconsistencies, faults the trial court for allowing the
dumped. On the second day of the search, the group was witness to glance at the notes written on her palm while
informed that the body had already surfaced near the testifying. He also argues that his alibi, being
vicinity of the search and delivered to the municipal corroborated, should have been given weight.
building. 10
Appellant Joelito Descartin, in assailing the credibility of
The municipal health officer of Bantayan, Dr. Oscar Francisca, has noted her "jittery actuation" while giving
Quirante, examined the body and concluded that the her testimony. He also questions the findings of
victim died of internal hemorrhage due to stab the ponente for not being the presiding judge during the
wounds. 11 The bloated body was in a late stage of examination of Francisca on the witness stand.
decomposition and its skin had sloughed off. 12 He found
the victim's face to be "beyond recognition." There were The focus of this appeal is clearly one of credibility. The
"some rope signs in the body particularly in the waistline initial assessment on the testimony of a witness is done
and in the knees." 13 by the trial court, and its findings still deserve due regard
notwithstanding that the presiding judge who pens the
The main defense interposed is one of alibi. decision is not the one who personally may have heard
the testimony. 18 The reliance on the transcript of
Antonio stated that on the whole day of 29 November stenographic notes should not, for that reason alone,
1984, he was out at sea fishing with his son. Joelito, on render the judgment subject to challenge. 19 The
his part, asserted that he was in Barrio Baod, about an continuity of the court and the efficacy of its decision are
hour's walk from his residence, at the house of his not affected by the cessation from the service of the
fiancee. He returned to his house, he said, only the day judge presiding it 20or by the fact that its writer merely
after. Roberto ("Ruby"), Joelito's uncle, testified that on took over from a colleague who presided at the trial. 21
that fateful day, he was in Samoco Purok 2, Iligan City,
and then left for Cebu on 06 December 1984 only after It is asserted that the testimony of Francisca Espina
receiving a telegraph that Joelito was implicated in the should not be given worth since, while testifying, she
crime. would at times be seen reading some notes written on
her left palm. Thus —
The Regional Trial Court 14 did not give credence to the
defense of alibi. It convicted the three accused of murder Q. May I see your left hand, may I see what is written
(punishable under Article 248 of the Revised Penal Code), there?
instead of robbery with homicide, explaining that the
A. Witness showing to the court her left palm and the Q Do you know of your own that doing this is unfair and
following words have been written in her palm in ball pen is not allowable while testifying in open court, do you
handwritten words and number of the pumpboat No. 56 know that is illegal act?
and there is another word "petsa" and there are words
which cannot be deciphered and all found in the palm of A No, I did not, know.
the left hand.
Q And you did all of this claiming that you do not know
ATTY. MONTECLAR: about the incident for the purpose of giving here
testimony against the accused?
That is all.
A Yes, sir. 22
ATTY. GONZALES: RE-CROSS
The use of memory aids during an examination of a
Q Mrs. witness, you cannot deny of what these physical witness is not altogether proscribed. Section 16, Rule
evidences or writings on the palm of your left hand. I 132, of the Rules of Court states:
want you to be honest, the law will not allow you to lie,
you are subject to punishment and penalty. My question Sec. 16. When witness may refer to
is, who wrote this on the palm of your left hand? memorandum. — A witness may be
allowed to refresh his memory
A I was the one who wrote this. respecting a fact, by anything written
or recorded by himself or under his
Q Why did you write that down? direction at the time when the fact
occurred, or immediately thereafter, or
A I was the one who wrote this. at any other time when the fact was
fresh in his memory and he knew that
the same was correctly written or
Q Why, what was your purpose of writing that in your
recorded; but in such case the writing
palm?
or record must be produced and may
be inspected by the adverse party, who
A I wrote this in my palm because I wanted to be sure of may, if he chooses, cross-examine the
what time the incident happened, was the same as that I witness upon it and may read it in
wrote in my palm. evidence. So, also, a witness may testify
from such a writing or record, though
Q And who furnished you the data in which you wrote in he retain no recollection of the
the palm of your hand? particular facts, if he is able to swear
that the writing or record correctly
A I was the one who made that. stated the transaction when made; but
such evidence must be received with
ATTY. GONZALES: caution. (Emphasis supplied.)

Q You don't understand my question. You wrote that Allowing a witness to refer to her notes rests on
writing but where did you get that data? the sound discretion of the trial court. 23 In this
case, the exercise of that discretion has not been
A. This is just of what I know. abused; the witness herself has explained that
she merely wanted to be accurate on dates and
Q Since you claim to have all this knowledge of your like details.
mind, why did you find it necessary to write that in the
palm of your hand and I notice during the trial that you Appellants see inadvertency on Francisca's appearing to
used to look in your palm, why, is that necessary in your be "jittery" on the witness stand. Nervousness and
believe to testify here to what you knew about the anxiety of a witness is a natural reaction particularly in
incident. the case of those who are called to testify for the first
time. The real concern, in fact, should be when they
A Because of the fact that I have a headache. show no such emotions.

Q When did this headache occur? Francisca did fail in immediately reporting the killing to
the police authorities. Delay or vacillation, however, in
making a criminal accusation does not necessarily
A After I left my house because my sick child.
adulterate the credibility of the witness. 24 Francisca, in
her case, has expressed fears for her life considering that
Q Now, knowing that you have an headache, did you not the assailants, being her neighbors, could easily exact
bring this to the attention of the Fiscal? retribution on her. 25 Also, the hesitancy in reporting the
occurrence of a crime in rural areas is not unknown. 26
A No, I did not tell the Fiscal.
Francisca's inability to respond to the summons for The trial court was correct when it concluded that the
another appearance in court for further questioning was crime committed was murder, a crime technically lower
satisfactorily explained by the prosecution. Francisca at than robbery with homicide, 38 not, however, because of
the time just had a miscarriage and was found to be too the attendance of treachery but of abuse of superior
weak to travel. The recall of the witness was, after all, at strength. Treachery, in our view, was not satisfactorily
the sound discretion of the trial court. 27 proven by the prosecution. Francisca Espina simply
testified that appellant Plasencia stabbed Mansueto
The claim of appellant Roberto Descartin that Francisca while the latter and the appellants were in a huddle.
and her husband, a tuba-gatherer, owed him P300.00, There was nothing adduced on whether or not the victim
and the assertion made by appellant Antonio Plasencia gave provocation, an indispensable issue in the proper
on the dog-biting story involving Francisca's son truly appreciation of treachery. 39 The presence, nonetheless,
were too petty to consider. It would be absurd to think of the aggravating circumstance of abuse of superior
that Francisca, for such trivial reasons was actually strength qualified the killing to murder. 40 The three
impelled to falsely implicate appellants for so grave an appellants utilized superiority in numbers and employed
offense as murder. deadly weapons in assaulting the unarmed Mansueto.

Appellants questioned Francisca's ability to recognize There being no other aggravating or mitigating
them from a distance. Francisca knew appellants well; circumstances to consider, the trial court aptly imposed
they all were her neighbors while Antonio Plasencia the penalty of reclusion perpetua, the medium
himself was her cousin. 28 The crime occurred at around period 41 of the penalty of reclusion temporal maximum
three o'clock in the afternoon only about fifty (50) meters to death prescribed by Article 248 of the Revised Penal
away from her. With an unobstructed view, Francisca's Code. In conformity with prevailing jurisprudential law,
positive identification of the culprits should be a foregone the heirs of the victim should be indemnified in the
matter. 29 amount of P50,000.00. 42

The alleged inconsistencies in Francisca's testimony and WHEREFORE, the decision of the trial court convicting
in her sworn statement of 18 December 1984, cover appellants Antonio Plasencia, Roberto Descartin and
matters of little significance. Minor inconsistencies in the Joelito (Julito) Descartin of the crime of murder and
testimonies of witnesses do not detract from their imposing on each of them the penalty of reclusion
credibility; 30 on the contrary, they serve to strengthen perpetua is hereby AFFIRMED with the modification that
their credibility and are taken as badges of truth rather the indemnity to the heirs of the victim, Herminio
than as indicia of falsehood 31 even as they also erase Mansueto, is raised to P50,000.00. Costs against
suspicion of rehearsed testimony.32 appellants.

All considered, the case against the appellants has been SO ORDERED.
proven beyond reasonable doubt even with the retracted
extra-judicial admission of Joelito Descartin. 33 The Feliciano, Romero, Melo and Panganiban, JJ., concur.
testimony of a single witness, if found to be credible, is
adequate for conviction, 34 The defense of alibi hardly can
overcome the positive identification of an unprejudiced
eyewitness. 35

Like the trial court, we are not persuaded that robbery

has been proven to be the principal motive for the crime
that can warrant the conviction of appellants for the
complex crime of robbery with homicide. 36 Appellants
could only thus be held responsible for the killing of
Mansueto. Conspiracy among the appellants has been
established beyond doubt by the sum of their deeds
pointing to a joint purpose and design. 37

Three aggravating circumstances were alleged in the

information, i.e., treachery, evident premeditation and
abuse of superior strength. The trial court disregarded
the circumstance of evident premeditation and
concluded that the attack upon Mansueto was
committed with treachery and abuse of superior
strength. On its finding that the assault was unexpectedly [G.R. No. 96202. April 13, 1999]
perpetrated upon the unarmed victim to ensure its
execution without risk to themselves from the defense
that the victim might make, the trial court appreciated
treachery, which it deemed as having so absorbed abuse
of superior strength.
ROSELLA D. CANQUE, petitioner, vs. THE COURT OF e. The construction will commence upon
APPEALS and SOCOR CONSTRUCTION the acceptance of the offer.
CORPORATION, respondents.
The second contract (Exh. B),[5] dated July 23, 1985,
DECISION stated:
MENDOZA, J.: The Supplier (SOCOR Construction) and the Contractor
(RDC Construction) for the consideration hereinafter
This petition for review on certiorari seeks a reversal named, hereby agree as follows:
of the decision[1] of the Court of Appeals affirming the
judgment[2] of the Regional Trial Court of Cebu City 1. SCOPE OF WORK:
ordering petitioner -
a. The Supplier agrees to perform and execute
. . . to pay [private respondent] the principal sum of Two the delivery of Item 310 and Item 302 to
Hundred Ninety Nine Thousand Seven Hundred the jobsite for the Asphalting of DAS Access
Seventeen Pesos and Seventy Five Centavos Road and the Front Gate of ACMDC, Toledo
(P299,717.75) plus interest thereon at 12% per annum City;
from September 22, 1986, the date of the filing of the
b. That the Contractor should inform or give
complaint until fully paid; to pay [private respondent] the
notice to the Supplier two (2) days before
further sum of Ten Thousand Pesos (P10,000.00) for
the delivery of such items;
reasonable attorneys fees; to pay the sum of Five
Hundred Fifty Two Pesos and Eighty Six Centavos c. That the Contractor shall pay the Supplier
(P552.86) for filing fees and to pay the costs of suit. Since the volume of the supplied items on the
[private respondent] withdrew its prayer for an alias writ actual weight in metric tons delivered and
of preliminary attachment vis-a-vis the [petitioners] accepted by the MPWH fifteen (15) days
counterbound, the incident on the alias writ of after the submission of the bill;
preliminary attachment has become moot and academic.
d. The delivery will commence upon the
acceptance of the offer.
The facts are as follows:
On May 28, 1986, private respondent sent
Petitioner Rosella D. Canque is a contractor doing
petitioner a bill (Exh. C), containing a revised
business under the name and style RDC Construction. At
computation,[6] for P299,717.75, plus interest at the rate
the time material to this case, she had contracts with the
of 3% a month, representing the balance of petitioners
government for (a) the restoration of Cebu-Toledo wharf
total account of P2,098,400.25 for materials delivered
road; (b) the asphalting of Lutopan access road; and (c)
and services rendered by private respondent under the
the asphalting of Babag road in Lapulapu City. [3] In
two contracts. However, petitioner refused to pay the
connection with these projects, petitioner entered into
amount, claiming that private respondent failed to
two contracts with private respondent Socor
submit the delivery receipts showing the actual weight in
Construction Corporation. The first contract (Exh. A),
[4] metric tons of the items delivered and the acceptance
dated April 26, 1985, provided:
thereof by the government.[7]
The Sub-Contractor (SOCOR Corporation) and the
Hence, on September 22, 1986, private respondent
Contractor (RDC Construction) for the consideration
brought suit in the Regional Trial Court of Cebu to recover
hereinafter named, hereby agree as follows:
from petitioner the sum of P299,717.75, plus interest at
the rate of 3% a month.
1. SCOPE OF WORK:
In her answer, petitioner admitted the existence of
a. The Sub-Contractor agrees to perform
the contracts with private respondent as well as receipt
and execute the Supply, Lay and
of the billing (Exh. C), dated May 28, 1986. However, she
Compact Item 310 and Item 302;
disputed the correctness of the bill
b. That Contractor shall provide the labor
. . . considering that the deliveries of [private respondent]
and materials needed to complete the
were not signed and acknowledged by the checkers of
project;
[petitioner], the bituminous tack coat it delivered to
c. That the Contractor agrees to pay the [petitioner] consisted of 60% water, and [petitioner] has
Sub-Contractor the price of One already paid [private respondent] about P1,400,000.00
Thousand Pesos only (P1,000.00) per but [private respondent] has not issued any receipt to
Metric Ton of Item 310 and Eight [petitioner] for said payments and there is no agreement
Thousand Only (P8,000.00) per Metric that [private respondent] will charge 3% per month
Ton of Item 302. interest.[8]

d. That the Contractor shall pay the Sub- Petitioner subsequently amended her answer
Contractor the volume of the supplied denying she had entered into sub-contracts with private
Item based on the actual weight in respondent.[9]
Metric Tons delivered, laid and
compacted and accepted by the
MPWH;
 During the trial, private respondent, as plaintiff, Accounts (Exh. K) constitute competent evidence to show
presented its vice-president, Sofia O. Sanchez, and such delivery. Private respondent cites Rule 130, 37 of
Dolores Aday, its bookkeeper. the Rules of Court and argues that the entries in question
constitute entries in the course of business sufficient to
Petitioners evidence consisted of her lone prove deliveries made for the government projects.This
testimony.[10] provision reads:
On June 22, 1988, the trial court rendered its Entries in the course of business. Entries made at, or near
decision ordering petitioner to pay private respondent the time of the transactions to which they refer, by a
the sum of P299,717.75 plus interest at 12% per annum, person deceased, outside of the Philippines or unable to
and costs. It held: testify, who was in a position to know the facts therein
. . . . [B]y analyzing the plaintiffs Book of Collectible stated, may be received as prima facie evidence, if such
Accounts particularly page 17 thereof (Exh. K) this Court person made the entries in his professional capacity or in
is convinced that the entries (both payments and billings) the performance of duty and in the ordinary or regular
recorded thereat are credible. Undeniably, the book course of business or duty.[15]
contains a detailed account of SOCORs commercial
transactions with RDC which were entered therein in the The admission in evidence of entries in corporate
course of business. We cannot therefore disregard the books requires the satisfaction of the following
entries recorded under Exhibit K because the fact of their conditions:
having been made in the course of business carries with
1. The person who made the entry must be dead,
it some degree of trustworthiness. Besides, no proof was
outside the country or unable to testify;
ever offered to demonstrate the irregularity of the said
entries thus, there is then no cogent reason for us to 2. The entries were made at or near the time of the
doubt their authenticity.[11] transactions to which they refer;
3. The entrant was in a position to know the facts
The trial court further ruled that in spite of the fact
stated in the entries;
that the contracts did not have any stipulation on
interest, interest may be awarded in the form of damages 4. The entries were made in his professional
under Article 2209 of the Civil Code.[12] capacity or in the performance of a duty, whether legal,
contractual, moral or religious; and
On appeal, the Court of Appeals affirmed. It upheld
the trial courts reliance on private respondents Book of 5. The entries were made in the ordinary or regular
Collectible Accounts (Exh. K) on the basis of Rule 130, course of business or duty.[16]
37[13] of the Rules of Court.
As petitioner points out, the business entries in
Hence, this appeal. Petitioner contends that question (Exh. K) do not meet the first and third
requisites. Dolores Aday, who made the entries, was
I. THE RESPONDENT COURT ERRED IN
presented by private respondent to testify on the account
ADMITTING IN EVIDENCE AS ENTRIES IN
of RDC Construction. It was in the course of her
THE COURSE OF BUSINESS THE ENTRIES IN
testimony that the entries were presented and marked in
PRIVATE RESPONDENTS BOOK OF
evidence. There was, therefore, neither justification nor
COLLECTIBLE ACCOUNTS CONSIDERING
necessity for the presentation of the entries as the
THAT THE PERSON WHO MADE SAID
person who made them was available to testify in court.
ENTRIES ACTUALLY TESTIFIED IN THIS CASE
BUT UNFORTUNATELY HAD NO PERSONAL Necessity is given as a ground for admitting entries, in
KNOWLEDGE OF SAID ENTRIES. that they are the best available evidence. Said a learned
judge: What a man has actually done and committed to
II. THE DECISION OF THE RESPONDENT COURT
writing when under obligation to do the act, it being in
SHOULD BE REVERSED AS IT HAS ONLY
the course of the business he has undertaken, and he
INADMISSIBLE EVIDENCE TO SUPPORT IT.
being dead, there seems to be no danger in submitting to
First. Petitioner contends that the presentation of the consideration of the court. The person who may be
the delivery receipts duly accepted by the then Ministry called to court to testify on these entries being dead,
of Public Works and Highways (MPWH) is required under there arises the necessity of their admission without the
the contracts (Exhs. A and B) and is a condition precedent one who made them being called to court be sworn and
for her payment of the amount claimed by private subjected to cross-examination. And this is permissible in
respondent. Petitioner argues that the entries in private order to prevent a failure of justice.[17]
respondents Book of Collectible Accounts (Exh. K) cannot
take the place of the delivery receipts and that such Moreover, Aday admitted that she had no personal
entries are mere hearsay and, thus, inadmissible in knowledge of the facts constituting the entry. She said
evidence.[14] she made the entries based on the bills given to her. But
she has no knowledge of the truth or falsity of the facts
We agree with the appellate court that the
stated in the bills. The deliveries of the materials stated in
stipulation in the two contracts requiring the submission
the bills were supervised by an engineer for (such)
of delivery receipts does not preclude proof of delivery of
functions.[18] The person, therefore, who has personal
materials by private respondent in some other way. The
knowledge of the facts stated in the entries, i.e., that
question is whether the entries in the Book of Collectible
such deliveries were made in the amounts and on the the opposite party is prevented from objecting to its
dates stated, was the companys project engineer.The competency in any view different from the one proposed.
entries made by Aday show only that the billings had [21]

been submitted to her by the engineer and that she

faithfully recorded the amounts stated therein in the It should be noted, however, that Exh. K is not really
books of account.Whether or not the bills given to Aday being presented for another purpose. Private
correctly reflected the deliveries made in the amounts respondents counsel offered it for the purpose of
and on the dates indicated was a fact that could be showing the amount of petitioners indebtedness. He
established by the project engineer alone who, however, said:
was not presented during trial. The rule is stated by
former Chief Justice Moran, thus: Exhibit K, your Honor - faithful reproduction of page
(17) of the book on Collectible Accounts of
[W]hen the witness had no personal knowledge of the the plaintiff, reflecting the principal
facts entered by him, and the person who gave him the indebtedness of defendant in the amount of
information is individually known and may testify as to Two hundred ninety-nine thousand seven
the facts stated in the entry which is not part of a system hundred seventeen pesos and seventy-five
of entries where scores of employees have intervened, centavos (P299,717.75) and reflecting as well
such entry is not admissible without the testimony of the the accumulated interest of three percent
informer.[19] (3%) monthly compounded such that as of
December 11, 1987, the amount collectible
Second. It is nonetheless argued by private from the defendant by the plaintiff is Six
respondent that although the entries cannot be hundred sixteen thousand four hundred
considered an exception to the hearsay rule, they may be thirty-five pesos and seventy-two centavos
admitted under Rule 132, 10 [20] of the Rules of Court (P616,435.72);[22]
which provides:
This is also the purpose for which its admission is
SEC. 10. When witness may refer to memorandum. A
sought as a memorandum to refresh the memory of
witness may be allowed to refresh his memory respecting
Dolores Aday as a witness. In other words, it is the nature
a fact, by anything written by himself or under his
of the evidence that is changed, not the purpose for
direction at the time when the fact occurred, or
which it is offered.
immediately thereafter, or at any other time when the
fact was fresh in his memory and he knew that the same Be that as it may, considered as a memorandum,
was correctly stated in the writing; but in such case the Exh. K does not itself constitute evidence. As explained
writing must be produced and may be inspected by the in Borromeo v. Court of Appeals:[23]
adverse party, who may, if he chooses, cross-examine the
witness upon it, and may read it in evidence. So, also, a Under the above provision (Rule 132, 10), the
witness may testify from such a writing, though he retain memorandum used to refresh the memory of the witness
no recollection of the particular facts, if he is able to does not constitute evidence, and may not be admitted
swear that the writing correctly stated the transaction as such, for the simple reason that the witness has just
when made; but such evidence must be received with the same to testify on the basis of refreshed memory. In
caution. other words, where the witness has testified
independently of or after his testimony has been
refreshed by a memorandum of the events in dispute,
On the other hand, petitioner contends that
such memorandum is not admissible as corroborative
evidence which is inadmissible for the purpose for which
evidence. It is self-evident that a witness may not be
it was offered cannot be admitted for another
corroborated by any written statement prepared wholly
purpose. She cites the following from Chief Justice
by him. He cannot be more credible just because he
Morans commentaries:
supports his open-court declaration with written
The purpose for which the evidence is offered must be statements of the same facts even if he did prepare them
specified. Where the offer is general, and the evidence is during the occasion in dispute, unless the proper
admissible for one purpose and inadmissible for another, predicate of his failing memory is priorly laid down. What
the evidence should be rejected. Likewise, where the is more, even where this requirement has been satisfied,
offer is made for two or more purposes and the evidence the express injunction of the rule itself is that such
is incompetent for one of them, the evidence should be evidence must be received with caution, if only because
excluded. The reason for the rule is that it is the duty of a it is not very difficult to conceive and fabricate evidence
party to select the competent from the incompetent in of this nature. This is doubly true when the witness
offering testimony, and he cannot impose this duty upon stands to gain materially or otherwise from the admission
the trial court. Where the evidence is inadmissible for the of such evidence . . . .[24]
purpose stated in the offer, it must be rejected, though
the same may be admissible for another purpose. The As the entries in question (Exh. K) were not made
rule is stated thus: If a party x x x opens the particular based on personal knowledge, they could only
view with which he offers any part of his evidence, or corroborate Dolores Adays testimony that she made the
states the object to be attained by it, he precludes entries as she received the bills.
himself from insisting on its operation in any other
direction, or for any other object; and the reason is, that Third. Does this, therefore, mean there is no
competent evidence of private respondents claim as
petitioner argues?[25] The answer is in the negative. Aside Art. 1235. When the obligee accepts the performance,
from Exh. K, private respondent presented the following knowing its incompleteness and irregularity and without
documents: expressing any protest or objection, the obligation is
deemed complied with.
1) Exhibit A - Contract Agreement dated 26 April 1985
which contract covers both the Toledo wharf project and
FINALLY, after a conscientious scrutiny of the records, we
the Babag Road project in Lapulapu City.
find Exhibit D-1 (p. 85 record) to be a material proof of
plaintiffs complete fulfillment of its obligation.
2) Exhibit B - Contract Agreement dated 23 July 1985
which covers the DAS Asphalting Project.
There is no question that plaintiff supplied RDC
Construction with Item 302 (Bitunimous Prime Coat),
3) Exhibit C - Revised Computation of Billings submitted Item 303 (Bituminous Tack Coat) and Item 310
on May 28, 1986. (Bitunimous Concrete Surface Course) in all the three
projects of the latter. The Lutopan Access Road project,
4) Exhibit D - an affidavit executed by [petitioner] to the the Toledo wharf project and the Babag-Lapulapu Road
effect that she has no more pending or unsettled project.
obligations as far as Toledo Wharf Road is concerned.
On the other hand, no proof was ever offered by
5) Exhibit D-1 - Statement of Work Accomplished on the defendant to show the presence of other contractors in
Road Restoration of Cebu-Toledo wharf project. those projects. We can therefore conclude that it was
Socor Construction Corp.ALONE who supplied RDC with
6) Exhibit E - another affidavit executed by [petitioner] Bituminous Prime Coat, Bituminous Tack Coat and
attesting that she has completely paid her laborers at the Bituminous Concrete Surface Course for all the
project located at Babag, Lapulapu City aforenamed three projects.[26]

7) Exhibits F, G, G-1, G-2, G-3 - Premiums paid by [private Indeed, while petitioner had previously paid private
respondent] together with the receipts for filing fees. respondent about P1,400,000.00 for deliveries made in
the past, she did not show that she made such payments
8) Exhibits H, I, J - certifications issued by OIC, MPWH, only after the delivery receipts had been presented by
Regional Office; Lapulapu City, City Engineer; Toledo City private respondent. On the other hand, it appears that
Treasurers Office respectively, proving that RDC petitioner was able to collect the full amount of project
construction has no more collectibles with all the said costs from the government, so that petitioner would be
government offices in connection with its projects. unjustly enriched at the expense of private respondent if
she is not made to pay what is her just obligation under
10) Exhibit L - Bill No. 057 under the account of RDC the contracts.
Construction in the amount of P153,382.75 dated August WHEREFORE, the decision of the Court of Appeals is
24, 1985. AFFIRMED.

11) Exhibit M - Bill No. 069 (RDCs account), in the amount SO ORDERED.
of P1,701,795.00 dated November 20, 1985.
Bellosillo, (Chairman), Puno,
Quisumbing, and Buena, JJ., concur.
12) Exhibit N - Bill No. 071 (RDCs account) in the amount
of P47,250.00 dated November 22, 1985.

13) Exhibit O - Bill No. 079 (RDCs account) in the amount

of P7,290.00 dated December 6, 1985.

As the trial court found:

The entries recorded under Exhibit K were supported by
Exhibits L, M, N, O which are all Socor Billings under the
account of RDC Construction. These billings were
presented and duly received by the authorized
representatives of defendant. The circumstances
obtaining in the case at bar clearly show that for a long
period of time after receipt thereof, RDC never
manifested its dissatisfaction or objection to the
aforestated billings submitted by plaintiff. Neither did
defendant immediately protest to plaintiffs alleged
G.R. No. 204169 September 11, 2013
incomplete or irregular performance.In view of these
facts, we believe Art. 1235 of the New Civil Code is
applicable. YASUO IWASAWA, PETITIONER,
vs.
FELISA CUSTODIO GANGAN1 (A.K.A FELISA GANGAN
ARAMBULO, AND FELISA GANGAN IWASAWA) AND THE (4) Certification11 from the NSO to the effect that
LOCAL CIVIL REGISTRAR OF PASAY CITY, RESPONDENTS. there are two entries of marriage recorded by
the office pertaining to private respondent
DECISION marked as Exhibit "D" to prove that private
respondent in fact contracted two marriages,
VILLARAMA, JR., J.: the first one was to a Raymond Maglonzo
Arambulo on June 20, 1994, and second, to
petitioner on November 28, 2002.
Before us is a petition for review on certiorari under Rule
45 of the 1997 Rules of Civil Procedure, as amended,
assailing the September 4, 2012 Decision2 and October The prosecutor appearing on behalf of the Office of the
16, 2012 Order3 of the Regional Trial Court (RTC), Branch Solicitor General (OSG) admitted the authenticity and
43, of Manila in Civil Case No. 11-126203. The RTC denied due execution of the above documentary exhibits during
the petition for declaration of nullity of the marriage of pre-trial.12
petitioner Yasuo Iwasawa with private respondent Felisa
Custodio Gangan due to insufficient evidence. On September 4, 2012, the RTC rendered the assailed
decision. It ruled that there was insufficient evidence to
The antecedents follow: prove private respondent’s prior existing valid marriage
to another man. It held that while petitioner offered the
certificate of marriage of private respondent to
Petitioner, a Japanese national, met private respondent
Arambulo, it was only petitioner who testified about said
sometime in 2002 in one of his visits to the Philippines.
marriage. The RTC ruled that petitioner’s testimony is
Private respondent introduced herself as "single" and
unreliable because he has no personal knowledge of
"has never married before." Since then, the two became
private respondent’s prior marriage nor of Arambulo’s
close to each other. Later that year, petitioner came back
death which makes him a complete stranger to the
to the Philippines and married private respondent on
marriage certificate between private respondent and
November 28, 2002 in Pasay City. After the wedding, the
Arambulo and the latter’s death certificate. It further
couple resided in Japan.4
ruled that petitioner’s testimony about the NSO
certification is likewise unreliable since he is a stranger to
In July 2009, petitioner noticed his wife become the preparation of said document.
depressed. Suspecting that something might have
happened in the Philippines, he confronted his wife
Petitioner filed a motion for reconsideration, but the
about it. To his shock, private respondent confessed to
same was denied by the RTC in an Order dated October
him that she received news that her previous husband
16, 2012.
passed away.5

Hence this petition raising the sole legal issue of whether

Petitioner sought to confirm the truth of his wife’s
the testimony of the NSO records custodian certifying the
confession and discovered that indeed, she was married
authenticity and due execution of the public documents
to one Raymond Maglonzo Arambulo and that their
issued by said office was necessary before they could be
marriage took place on June 20, 1994.6 This prompted
accorded evidentiary weight.
petitioner to file a petition7 for the declaration of his
marriage to private respondent as null and void on the
ground that their marriage is a bigamous one, based on Petitioner argues that the documentary evidence he
Article 35(4) in relation to Article 41 of the Family Code of presented are public documents which are considered
the Philippines. self-authenticating and thus it was unnecessary to call
the NSO Records Custodian as witness. He cites Article
410 of the Civil Code which provides that books making
During trial, aside from his testimony, petitioner also
up the civil register and all documents relating thereto
offered the following pieces of documentary evidence
shall be considered public documents and shall be prima
issued by the National Statistics Office (NSO):
facie evidence of the facts stated therein. Moreover, the
trial prosecutor himself also admitted the authenticity of
(1) Certificate of Marriage8 between petitioner said documents.
and private respondent marked as Exhibit "A" to
prove the fact of marriage between the parties
The OSG, in its Comment,13 submits that the findings of
on November 28, 2002;
the RTC are not in accord with law and established
jurisprudence. It contends that both Republic Act No.
(2) Certificate of Marriage9 between private 3753, otherwise known as the Law on Registry of Civil
respondent and Raymond Maglonzo Arambulo Status, and the Civil Code elaborated on the character of
marked as Exhibit "B" to prove the fact of documents arising from records and entries made by the
marriage between the parties on June 20, 1994; civil registrar and categorically declared them as public
documents. Being public documents, said documents are
(3) Certificate of Death10 of Raymond Maglonzo admissible in evidence even without further proof of
Arambulo marked as Exhibits "C" and "C-1" to their due execution and genuineness and consequently,
prove the fact of the latter’s death on July 14, there was no need for the court to require petitioner to
2009; and present the records custodian or officer from the NSO to
testify on them. The OSG further contends that public
documents have probative value since they are prima 28, 2002 in Pasay City; (3) that there was no judicial
facie evidence of the facts stated therein as provided in declaration of nullity of the marriage of private
the above-quoted provision of the Civil Code. Thus, the respondent with Arambulo at the time she married
OSG submits that the public documents presented by petitioner; (3) that Arambulo died on July 14, 2009 and
petitioner, considered together, completely establish the that it was only on said date that private respondent’s
facts in issue. marriage with Arambulo was deemed to have been
dissolved; and (4) that the second marriage of private
In her letter14 dated March 19, 2013 to this Court, private respondent to petitioner is bigamous, hence null and
respondent indicated that she is not against her void, since the first marriage was still valid and subsisting
husband’s petition to have their marriage declared null when the second marriage was contracted.
and void. She likewise admitted therein that she
contracted marriage with Arambulo on June 20, 1994 and WHEREFORE, the petition for review on certiorari is
contracted a second marriage with petitioner on GRANTED. The September 4, 2012 Decision and October
November 28, 2002. She further admitted that it was due 16, 2012 Order of the Regional Trial Court of Manila,
to poverty and joblessness that she married petitioner Branch 43, in Civil Case No. 11-126203 are hereby SET
without telling the latter that she was previously married. ASIDE. The marriage of petitioner Yasuo Iwasawa and
Private respondent also confirmed that it was when she private respondent Felisa Custodio Gangan is declared
found out that Arambulo passed away on July 14, 2009 NULL and VOID.
that she had the guts to confess to petitioner about her
previous marriage. Thereafter, she and petitioner have The Local Civil Registrar of Pasay City and the National
separated. Statistics Office are hereby ORDERED to make proper
entries into the records of the abovementioned parties in
We grant the petition. accordance with this Decision.

There is no question that the documentary evidence No pronouncement as to costs.

submitted by petitioner are all public
documents.1âwphi1 As provided in the Civil Code: SO ORDERED.

ART. 410. The books making up the civil register and all MARTIN S. VILLARAMA, JR.
documents relating thereto shall be considered public Associate Justice
documents and shall be prima facie evidence of the facts
therein contained.

As public documents, they are admissible in evidence

even without further proof of their due execution and
genuineness.15 Thus, the RTC erred when it disregarded
said documents on the sole ground that the petitioner
did not present the records custodian of the NSO who
issued them to testify on their authenticity and due
execution since proof of authenticity and due execution
was not anymore necessary. Moreover, not only are said
documents admissible, they deserve to be given
evidentiary weight because they constitute prima facie
evidence of the facts stated therein. And in the instant
case, the facts stated therein remain unrebutted since
neither the private respondent nor the public prosecutor
presented evidence to the contrary.

This Court has consistently held that a judicial declaration

of nullity is required before a valid subsequent marriage
can be contracted; or else, what transpires is a bigamous
marriage,16 which is void from the beginning as provided
in Article 35(4) of the Family Code of the Philippines. And
this is what transpired in the instant case.

As correctly pointed out by the OSG, the documentary

exhibits taken together concretely establish the nullity of
the marriage of petitioner to private respondent on the
ground that their marriage is bigamous. The exhibits
directly prove the following facts: (1) that private G.R. No. 181163 July 24, 2013
respondent married Arambulo on June 20, 1994 in the
City of Manila; (2) that private respondent contracted a ASIAN TERMINALS, INC., Petitioner,
second marriage this time with petitioner on November vs.
PHILAM INSURANCE CO., INC. (now Chartis Philippines On May 11, 1995, the shipment was withdrawn by R.F.
Insurance, Inc.), Respondent. Revilla Customs Brokerage, Inc., the authorized broker of
Universal Motors, and delivered to the latter’s warehouse
x-----------------------x in Mandaluyong City. Upon the request7 of Universal
Motors, a bad order survey was conducted on the
G.R. No. 181262 cargoes and it was found that one Frame Axle Sub
without LWR was deeply dented on the buffle plate while
six Frame Assembly with Bush were deformed and
PHILAM INSURANCE CO., INC. (now Chartis Philippines
misaligned.8 Owing to the extent of the damage to said
Insurance, Inc.), Petitioner,
cargoes, Universal Motors declared them a total loss.
vs.
WESTWIND SHIPPING CORPORATION and ASIAN
TERMINALS, INC., Respondents. On August 4, 1995, Universal Motors filed a formal claim
for damages in the amount of ₱643,963.84 against
Westwind,9 ATI10 and R.F. Revilla Customs Brokerage,
x-----------------------x
Inc.11 When Universal Motors’ demands remained
unheeded, it sought reparation from and was
G.R. No. 181319 compensated in the sum of ₱633,957.15 by Philam.
Accordingly, Universal Motors issued a Subrogation
WESTWIND SHIPPING CORPORATION, Petitioner, Receipt12 dated November 15, 1995 in favor of Philam.
vs.
PHILAM INSURANCE CO., INC. (now Chartis Philippines On January 18, 1996, Philam, as subrogee of Universal
Insurance, Inc.) and ASIAN TERMINALS, Motors, filed a Complaint13 for damages against
INC.,Respondents. Westwind, ATI and R.F. Revilla Customs Brokerage, Inc.
before the RTC of Makati City, Branch 148.
DECISION
On September 24, 1999, the RTC rendered judgment in
VILLARAMA, JR., J.: favor of Philam and ordered Westwind and ATI to pay
Philam, jointly and severally, the sum of ₱633,957.15
Before us are three consolidated petitions for review on with interest at the rate of 12% per annum, ₱158,989.28
certiorari assailing the Decision1 dated October 15, 2007 by way of attorney’s fees and expenses of litigation.
and the Resolution2 dated January 11, 2008 of the Court
of Appeals (CA) which affirmed with modification the The court a quo ruled that there was sufficient evidence
Decision3 of the Regional Trial Court (RTC) of Makati City, to establish the respective participation of Westwind and
Branch 148, in Civil Case No. 96-062. The RTC had ATI in the discharge of and consequent damage to the
ordered Westwind Shipping Corporation (Westwind) and shipment. It found that the subject cargoes were
Asian Terminals, Inc. (ATI) to pay, jointly and severally, compressed while being hoisted using a cable that was
Philam Insurance Co., Inc. (Philam) the sum of too short and taut.
₱633,957.15, with interest at 12% per annum from the
date of judicial demand and ₱158,989.28 as attorney’s The trial court observed that while the staff of ATI
fees. undertook the physical unloading of the cargoes from the
carrying vessel, Westwind’s duty officer exercised full
The facts of the case follow: supervision and control throughout the process. It held
Westwind vicariously liable for failing to prove that it
On April 15, 1995, Nichimen Corporation shipped to exercised extraordinary diligence in the supervision of
Universal Motors Corporation (Universal Motors) 219 the ATI stevedores who unloaded the cargoes from the
packages containing 120 units of brand new Nissan vessel. However, the court absolved R.F. Revilla Customs
Pickup Truck Double Cab 4x2 model, without engine, tires Brokerage, Inc. from liability in light of its finding that the
and batteries, on board the vessel S/S "Calayan Iris" from cargoes had been damaged before delivery to the
Japan to Manila. The shipment, which had a declared consignee.
value of US$81,368 or ₱29,400,000, was insured with
Philam against all risks under Marine Policy No. 708- The trial court acknowledged the subrogation between
8006717-4.4 Philam and Universal Motors on the strength of the
Subrogation Receipt dated November 15, 1995. It
The carrying vessel arrived at the port of Manila on April likewise upheld Philam’s claim for the value of the alleged
20, 1995, and when the shipment was unloaded by the damaged vehicle parts contained in Case Nos. 03-245-
staff of ATI, it was found that the package marked as 03- 42K/1 and 03-245-51K or specifically for "7 pieces of
245-42K/1 was in bad order.5 The Turn Over Survey of Frame Axle Sub Without Lower and Frame Assembly with
Bad Order Cargoes6 dated April 21, 1995 identified two Bush."14
packages, labeled 03-245-42K/1 and 03/237/7CK/2, as
being dented and broken. Thereafter, the cargoes were Westwind filed a Motion for Reconsideration15 which
stored for temporary safekeeping inside CFS Warehouse was, however, denied in an Order16 dated October 26,
in Pier No. 5. 2000.
On appeal, the CA affirmed with modification the ruling G.R. No. 181163
of the RTC. In a Decision dated October 15, 2007, the
appellate court directed Westwind and ATI to pay Philam, Petitioner ATI disowns liability for the damage to the
jointly and severally, the amount of ₱190,684.48 with Frame Axle Sub without Lower inside Case No. 03-245-
interest at the rate of 12% per annum until fully paid, 42K/1. It shifts the blame to Westwind, whom it charges
attorney’s fees of ₱47,671 and litigation expenses. with negligence in the supervision of the stevedores who
unloaded the cargoes. ATI admits that the damage could
The CA stressed that Philam may not modify its have been averted had Westwind observed extraordinary
allegations by claiming in its Appellee’s Brief 17 that the six diligence in handling the goods. Even so, ATI suspects
pieces of Frame Assembly with Bush, which were that Case No. 03-245-42K/1 is "weak and
purportedly damaged, were also inside Case No. 03-245- defective"22 considering that it alone sustained damage
42K/1. The CA noted that in its Complaint, Philam alleged out of the 219 packages.
that "one (1) pc. FRAME AXLE SUB W/O LWR from Case
No. 03-245-42K/1 was completely deformed and Notwithstanding, petitioner ATI submits that, at most, it
misaligned, and six (6) other pcs. of FRAME ASSEMBLY can be held liable to pay only ₱5,000 per package
WITH BUSH from Case No. 03-245-51K were likewise pursuant to its Contract for Cargo Handling Services. ATI
completely deformed and misaligned."18 maintains that it was not properly notified of the actual
value of the cargoes prior to their discharge from the
The appellate court accordingly affirmed Westwind and vessel.
ATI’s joint and solidary liability for the damage to only
one (1) unit of Frame Axle Sub without Lower inside Case G.R. No. 181262
No. 03-245-42K/1. It also noted that when said cargo
sustained damage, it was not yet in the custody of the Petitioner Philam supports the CA in holding both
consignee or the person who had the right to receive it. Westwind and ATI liable for the deformed and misaligned
The CA pointed out that Westwind’s duty to observe Frame Axle Sub without Lower inside Case No. 03-245-
extraordinary diligence in the care of the cargoes 42K/1. It, however, faults the appellate court for
subsisted during unloading thereof by ATI’s personnel disallowing its claim for the value of six Chassis Frame
since the former exercised full control and supervision Assembly which were likewise supposedly inside Case
over the discharging operation. Nos. 03-245-51K and 03-245-42K/1. As to the latter
container, Philam anchors its claim on the results of the
Similarly, the appellate court held ATI liable for the Inspection/Survey Report23 of Chartered Adjusters, Inc.,
negligence of its employees who carried out the which the court received without objection from
offloading of cargoes from the ship to the pier. As regards Westwind and ATI. Petitioner believes that with the offer
the extent of ATI’s liability, the CA ruled that ATI cannot and consequent admission of evidence to the effect that
limit its liability to ₱5,000 per damaged package. It Case No. 03-245-42K/1 contains six pieces of dented
explained that Section 7.0119 of the Contract for Cargo Chassis Frame Assembly, Philam’s claim thereon should
Handling Services20does not apply in this case since ATI be treated, in all respects, as if it has been raised in the
was not yet in custody and control of the cargoes when pleadings. Thus, Philam insists on the reinstatement of
the Frame Axle Sub without Lower suffered damage. the trial court’s award in its favor for the payment of
₱633,957.15 plus legal interest, ₱158,989.28 as
Citing Belgian Overseas Chartering and Shipping N.V. v. attorney’s fees and costs.
Philippine First Insurance Co., Inc., 21 the appellate court
also held that Philam’s action for damages had not G.R. No. 181319
prescribed notwithstanding the absence of a notice of
claim. Petitioner Westwind denies joint liability with ATI for the
value of the deformed Frame Axle Sub without Lower in
All the parties moved for reconsideration, but their Case No. 03-245-42K/1. Westwind argues that the
motions were denied in a Resolution dated January 11, evidence shows that ATI was already in actual custody of
2008. Thus, they each filed a petition for review on said case when the Frame Axle Sub without Lower inside
certiorari which were consolidated together by this Court it was misaligned from being compressed by the tight
considering that all three petitions assail the same CA cable used to unload it. Accordingly, Westwind ceased to
decision and resolution and involve the same parties. have responsibility over the cargoes as provided in
paragraph 4 of the Bill of Lading which provides that the
Essentially, the issues posed by petitioner ATI in G.R. No. responsibility of the carrier shall cease when the goods
181163, petitioner Philam in G.R. No. 181262 and are taken into the custody of the arrastre.
petitioner Westwind in G.R. No. 181319 can be summed
up into and resolved by addressing three questions: (1) Westwind contends that sole liability for the damage
Has Philam’s action for damages prescribed? (2) Who rests on ATI since it was the latter’s stevedores who
between Westwind and ATI should be held liable for the operated the ship’s gear to unload the cargoes. Westwind
damaged cargoes? and (3) What is the extent of their reasons that ATI is an independent company, over whose
liability? employees and operations it does not exercise control.
Moreover, it was ATI’s employees who selected and used
Petitioners’ Arguments
the wrong cable to lift the box containing the cargo which presented,28the Court may nonetheless resolve questions
was damaged. of fact when the case falls under any of the following
exceptions:
Westwind likewise believes that ATI is bound by its
acceptance of the goods in good order despite a finding (1) when the findings are grounded entirely on
that Case No. 03-245-42K/1 was partly torn and speculation, surmises, or conjectures; (2) when the
crumpled on one side. Westwind also notes that the inference made is manifestly mistaken, absurd, or
discovery that a piece of Frame Axle Sub without Lower impossible; (3) when there is grave abuse of discretion;
was completely deformed and misaligned came only on (4) when the judgment is based on a misapprehension of
May 12, 1995 or 22 days after the cargoes were turned facts; (5) when the findings of fact are conflicting; (6)
over to ATI and after the same had been hauled by R.F. when in making its findings the Court of Appeals went
Revilla Customs Brokerage, Inc. beyond the issues of the case, or its findings are contrary
to the admissions of both the appellant and the appellee;
Westwind further argues that the CA erred in holding it (7) when the findings are contrary to those of the trial
liable considering that Philam’s cause of action has court; (8) when the findings are conclusions without
prescribed since the latter filed a formal claim with it only citation of specific evidence on which they are based; (9)
on August 17, 1995 or four months after the cargoes when the facts set forth in the petition as well as in the
arrived on April 20, 1995. Westwind stresses that petitioner’s main and reply briefs are not disputed by the
according to the provisions of clause 20, paragraph 224 of respondent; and (10) when the findings of fact are
the Bill of Lading as well as Article 36625 of the Code of premised on the supposed absence of evidence and
Commerce, the consignee had until April 20, 1995 within contradicted by the evidence on record.29
which to make a claim considering the readily apparent
nature of the damage, or until April 27, 1995 at the latest, In the cases at bar, the fifth and seventh exceptions apply.
if it is assumed that the damage is not readily apparent. While the CA affirmed the joint liability of ATI and
Westwind, it held them liable only for the value of one
Lastly, petitioner Westwind contests the imposition of unit of Frame Axle Sub without Lower inside Case No. 03-
12% interest on the award of damages to Philam 245-42K/1. The appellate court disallowed the award of
reckoned from the time of extrajudicial demand. damages for the six pieces of Frame Assembly with Bush,
Westwind asserts that, at most, it can only be charged which petitioner Philam alleged, for the first time in its
with 6% interest since the damages claimed by Philam Appellee’s Brief, to be likewise inside Case No. 03-245-
does not constitute a loan or forbearance of money. 42K/1. Lastly, the CA reduced the award of attorney’s fees
to ₱47,671.
The Court’s Ruling
Foremost, the Court holds that petitioner Philam has
The three consolidated petitions before us call for a adequately established the basis of its claim against
determination of who between ATI and Westwind is petitioners ATI and Westwind. Philam, as insurer, was
liable for the damage suffered by the subject cargo and subrogated to the rights of the consignee, Universal
to what extent. However, the resolution of the issues Motors Corporation, pursuant to the Subrogation Receipt
raised by the present petitions is predicated on the executed by the latter in favor of the former. The right of
appreciation of factual issues which is beyond the scope subrogation accrues simply upon payment by the
of a petition for review on certiorari under Rule 45 of the insurance company of the insurance claim.30 Petitioner
1997 Rules of Civil Procedure, as amended. It is settled Philam’s action finds support in Article 2207 of the Civil
that in petitions for review on certiorari, only questions Code, which provides as follows:
of law may be put in issue. Questions of fact cannot be
entertained.26 Art. 2207. If the plaintiff’s property has been insured, and
he has received indemnity from the insurance company
There is a question of law if the issue raised is capable of for the injury or loss arising out of the wrong or breach of
being resolved without need of reviewing the probative contract complained of, the insurance company shall be
value of the evidence. The resolution of the issue must subrogated to the rights of the insured against the
rest solely on what the law provides on the given set of wrongdoer or the person who has violated the contract. x
circumstances. Once it is clear that the issue invites a x x.
review of the evidence presented, the question posed is
one of fact. If the query requires a re-evaluation of the In their respective comments31 to Philam’s Formal Offer
credibility of witnesses, or the existence or relevance of of Evidence,32 petitioners ATI and Westwind objected to
surrounding circumstances and their relation to each the admission of Marine Certificate No. 708-8006717-4
other, the issue in that query is factual.27 and the Subrogation Receipt as documentary exhibits "B"
and "P," respectively. Petitioner Westwind objects to the
In the present petitions, the resolution of the question as admission of both documents for being hearsay as they
to who between Westwind and ATI should be liable for were not authenticated by the persons who executed
the damages to the cargo and to what extent would have them. For the same reason, petitioner ATI assails the
this Court pass upon the evidence on record. But while it admissibility of the Subrogation Receipt. As regards
is not our duty to review, examine and evaluate or weigh Marine Certificate No. 708-8006717-4, ATI makes issue of
all over again the probative value of the evidence the fact that the same was issued only on April 27, 1995
or 12 days after the shipment was loaded on and A Because I personally delivered the claim check to
transported via S/S "Calayan Iris." consignee and have them receive the said check.

The nature of documents as either public or private Q I see. Therefore, what you are saying is that you
determines how the documents may be presented as personally delivered the claim check of Universal Motors
evidence in court. Public documents, as enumerated Corporation to that company and you have the
under Section 19,33 Rule 132 of the Rules of Court, are subrogation receipt signed by them personally?
self-authenticating and require no further authentication
in order to be presented as evidence in court. 34 A Yes, sir.

In contrast, a private document is any other writing, deed Q And it was signed in your presence?
or instrument executed by a private person without the
intervention of a notary or other person legally A Yes, sir.38
authorized by which some disposition or agreement is
proved or set forth. Lacking the official or sovereign
Indeed, all that the Rules require to establish the
character of a public document, or the solemnities
authenticity of a document is the testimony of a person
prescribed by law, a private document requires
who saw the document executed or written. Thus, the
authentication35 in the manner prescribed under Section
trial court did not err in admitting the Subrogation
20, Rule 132 of the Rules:
Receipt in evidence despite petitioners ATI and
Westwind’s objections that it was not authenticated by
SEC. 20. Proof of private document. – Before any private the person who signed it.
document offered as authentic is received in evidence, its
due execution and authenticity must be proved either:
However, the same cannot be said about Marine
Certificate No. 708-8006717-4 which Ongchangcho, Jr.
(a) By anyone who saw the document executed merely identified in court. There is nothing in
or written; or Ongchangco, Jr.’s testimony which indicates that he saw
Philam’s authorized representative sign said document,
(b) By evidence of the genuineness of the thus:
signature or handwriting of the maker.
ATTY. PALACIOS
Any other private document need only be identified as
that which it is claimed to be. Q Now, I am presenting to you a copy of this marine
certificate 708-8006717-4 issued by Philam Insurance
The requirement of authentication of a private document Company, Inc. to Universal Motors Corporation on April
is excused only in four instances, specifically: (a) when 15, 1995. Will you tell us what relation does it have to
the document is an ancient one within the context of that policy risk claim mentioned in that letter?
Section 21,36 Rule 132 of the Rules; (b) when the
genuineness and authenticity of the actionable A This is a photocopy of the said policy issued by the
document have not been specifically denied under oath consignee Universal Motors Corporation.
by the adverse party; (c) when the genuineness and
authenticity of the document have been admitted; or (d)
ATTY. PALACIOS
when the document is not being offered as genuine. 37
I see. May I request, if Your Honor please, that this
Indubitably, Marine Certificate No. 708-8006717-4 and
marine risk policy of the plaintiff as submitted by
the Subrogation Receipt are private documents which
claimant Universal Motors Corporation be marked as
Philam and the consignee, respectively, issue in the
Exhibit B.
pursuit of their business. Since none of the exceptions to
the requirement of authentication of a private document
COURT
obtains in these cases, said documents may not be
admitted in evidence for Philam without being properly
authenticated. Mark it.39

Contrary to the contention of petitioners ATI and As regards the issuance of Marine Certificate No. 708-
Westwind, however, Philam presented its claims officer, 8006717-4 after the fact of loss occurred, suffice it to say
Ricardo Ongchangco, Jr. to testify on the execution of the that said document simply certifies the existence of an
Subrogation Receipt, as follows: open insurance policy in favor of the consignee. Hence,
the reference to an "Open Policy Number 9595093" in
said certificate. The Court finds it completely absurd to
ATTY. PALACIOS
suppose that any insurance company, of sound business
practice, would assume a loss that has already been
Q How were you able to get hold of this subrogation
realized, when the profitability of its business rests
receipt?
precisely on the non-happening of the risk insured
against.
Yet, even with the exclusion of Marine Certificate No. The notice in writing need not be given if the state of the
708-8006717-4, the Subrogation Receipt, on its own, is goods has at the time of their receipt been the subject of
adequate proof that petitioner Philam paid the joint survey or inspection.
consignee’s claim on the damaged goods. Petitioners ATI
and Westwind failed to offer any evidence to controvert In any event the carrier and the ship shall be discharged
the same. In Malayan Insurance Co., Inc. v. Alberto,40 the from all liability in respect of loss or damage unless suit is
Court explained the effect of payment by the insurer of brought within one year after delivery of the goods or the
the insurance claim in this wise: date when the goods should have been delivered:
Provided, That if a notice of loss or damage, either
We have held that payment by the insurer to the insured apparent or concealed, is not given as provided for in this
operates as an equitable assignment to the insurer of all section, that fact shall not affect or prejudice the right of
the remedies that the insured may have against the third the shipper to bring suit within one year after the
party whose negligence or wrongful act caused the loss. delivery of the goods or the date when the goods should
The right of subrogation is not dependent upon, nor does have been delivered.
it grow out of, any privity of contract. It accrues simply
upon payment by the insurance company of the In the Bill of Lading43 dated April 15, 1995, Rizal
insurance claim. The doctrine of subrogation has its roots Commercial Banking Corporation (RCBC) is indicated as
in equity. It is designed to promote and accomplish the consignee while Universal Motors is listed as the
justice; and is the mode that equity adopts to compel the notify party. These designations are in line with the
ultimate payment of a debt by one who, in justice, equity, subject shipment being covered by Letter of Credit No.
and good conscience, ought to pay.41 I501054, which RCBC issued upon the request of
Universal Motors.
Neither do we find support in petitioner Westwind’s
contention that Philam’s right of action has prescribed. A letter of credit is a financial device developed by
merchants as a convenient and relatively safe mode of
The Carriage of Goods by Sea Act (COGSA) or Public Act dealing with sales of goods to satisfy the seemingly
No. 521 of the 74th US Congress, was accepted to be irreconcilable interests of a seller, who refuses to part
made applicable to all contracts for the carriage of goods with his goods before he is paid, and a buyer, who wants
by sea to and from Philippine ports in foreign trade by to have control of his goods before paying.44 However,
virtue of Commonwealth Act (C.A.) No. 65. 42 Section 1 of letters of credit are employed by the parties desiring to
C.A. No. 65 states: enter into commercial transactions, not for the benefit of
the issuing bank but mainly for the benefit of the parties
Section 1. That the provisions of Public Act Numbered to the original transaction,45 in these cases, Nichimen
Five hundred and twenty-one of the Seventy-fourth Corporation as the seller and Universal Motors as the
Congress of the United States, approved on April buyer. Hence, the latter, as the buyer of the Nissan CKD
sixteenth, nineteen hundred and thirty-six, be accepted, parts, should be regarded as the person entitled to
as it is hereby accepted to be made applicable to all delivery of the goods. Accordingly, for purposes of
contracts for the carriage of goods by sea to and from reckoning when notice of loss or damage should be given
Philippine ports in foreign trade: Provided, That nothing to the carrier or its agent, the date of delivery to
in the Act shall be construed as repealing any existing Universal Motors is controlling.
provision of the Code of Commerce which is now in force,
or as limiting its application. S/S "Calayan Iris" arrived at the port of Manila on April
20, 1995, and the subject cargoes were discharged to the
The prescriptive period for filing an action for the loss or custody of ATI the next day. The goods were then
damage of the goods under the COGSA is found in withdrawn from the CFS Warehouse on May 11, 1995
paragraph (6), Section 3, thus: and the last of the packages delivered to Universal
Motors on May 17, 1995. Prior to this, the latter filed a
(6) Unless notice of loss or damage and the general Request for Bad Order Survey46 on May 12,1995 following
nature of such loss or damage be given in writing to the a joint inspection where it was discovered that six pieces
carrier or his agent at the port of discharge before or at of Chassis Frame Assembly from two bundles were
the time of the removal of the goods into the custody of deformed and one Front Axle Sub without Lower from a
the person entitled to delivery thereof under the contract steel case was dented. Yet, it was not until August 4, 1995
of carriage, such removal shall be prima facie evidence of that Universal Motors filed a formal claim for damages
the delivery by the carrier of the goods as described in against petitioner Westwind.
the bill of lading. If the loss or damage is not apparent,
the notice must be given within three days of the Even so, we have held in Insurance Company of North
delivery. America v. Asian Terminals, Inc. that a request for, and
the result of a bad order examination, done within the
Said notice of loss or damage maybe endorsed upon the reglementary period for furnishing notice of loss or
receipt for the goods given by the person taking delivery damage to the carrier or its agent, serves the purpose of
thereof. a claim. A claim is required to be filed within the
reglementary period to afford the carrier or depositary
reasonable opportunity and facilities to check the validity
of the claims while facts are still fresh in the minds of the
persons who took part in the transaction and documents Westwind and ATI are concurrently accountable for the
are still available.47 Here, Universal Motors filed a request damage to the content of Steel Case No. 03-245-42K/1.
for bad order survey on May 12, 1995, even before all the
packages could be unloaded to its warehouse. Section 251 of the COGSA provides that under every
contract of carriage of goods by the sea, the carrier in
Moreover, paragraph (6), Section 3 of the COGSA clearly relation to the loading, handling, stowage, carriage,
states that failure to comply with the notice requirement custody, care and discharge of such goods, shall be
shall not affect or prejudice the right of the shipper to subject to the responsibilities and liabilities and entitled
bring suit within one year after delivery of the goods. to the rights and immunities set forth in the Act. Section
Petitioner Philam, as subrogee of Universal Motors, filed 3 (2)52 thereof then states that among the carrier’s
the Complaint for damages on January 18, 1996, just responsibilities are to properly load, handle, stow, carry,
eight months after all the packages were delivered to its keep, care for and discharge the goods carried.53
possession on May 17, 1995. Evidently, petitioner
Philam’s action against petitioners Westwind and ATI was At the trial, Westwind’s Operation Assistant, Menandro
seasonably filed. G. Ramirez, testified on the presence of a ship officer to
supervise the unloading of the subject cargoes.
This brings us to the question that must be resolved in
these consolidated petitions. Who between Westwind ATTY. LLAMAS
and ATI should be liable for the damage to the cargo?
Q Having been present during the entire discharging
It is undisputed that Steel Case No. 03-245-42K/1 was operation, do you remember who else were present at
partly torn and crumpled on one side while it was being that time?
unloaded from the carrying vessel. The damage to said
container was noted in the Bad Order Cargo A Our surveyor and our checker the foreman of ATI.
Receipt48dated April 20, 1995 and Turn Over Survey of
Bad Order Cargoes dated April 21, 1995. The Turn Over
Q Were there officials of the ship present also?
Survey of Bad Order Cargoes indicates that said steel case
was not opened at the time of survey and was accepted
by the arrastre in good order. Meanwhile, the Bad Order A Yes, sir there was an officer of the vessel on duty at
that time.54
Cargo Receipt bore a notation "B.O. not yet t/over to
ATI." On the basis of these documents, petitioner ATI
claims that the contents of Steel Case No. 03-245-42K/1 xxxx
were damaged while in the custody of petitioner
Westwind. Q Who selected the cable slink to be used?

We agree. A ATI Operation.

Common carriers, from the nature of their business and Q Are you aware of how they made that selection?
for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods A Before the vessel arrived we issued a manifesto of the
transported by them. Subject to certain exceptions storage plan informing the ATI of what type of cargo and
enumerated under Article 173449 of the Civil Code, equipment will be utilitized in discharging the cargo. 55
common carriers are responsible for the loss, destruction,
or deterioration of the goods. The extraordinary xxxx
responsibility of the common carrier lasts from the time
the goods are unconditionally placed in the possession of, Q You testified that it was the ATI foremen who select the
and received by the carrier for transportation until the cable slink to be used in discharging, is that correct?
same are delivered, actually or constructively, by the
carrier to the consignee, or to the person who has a right
A Yes sir, because they are the one who select the slink
to receive them.50
and they know the kind of cargoes because they
inspected it before the discharge of said cargo.
The court a quo, however, found both petitioners
Westwind and ATI, jointly and severally, liable for the
Q Are you aware that the ship captain is consulted in the
damage to the cargo. It observed that while the staff of
selection of the cable sling?
ATI undertook the physical unloading of the cargoes from
the carrying vessel, Westwind’s duty officer exercised full
supervision and control over the entire process. The A Because the ship captain knows for a fact the
appellate court affirmed the solidary liability of Westwind equipment being utilized in the discharge of the cargoes
and ATI, but only for the damage to one Frame Axle Sub because before the ship leave the port of Japan the crew
without Lower. already utilized the proper equipment fitted to the
cargo.56(Emphasis supplied.)
Upon a careful review of the records, the Court finds no
reason to deviate from the finding that petitioners It is settled in maritime law jurisprudence that cargoes
while being unloaded generally remain under the custody
of the carrier.57 The Damage Survey Report58 of the survey Adjusters, Inc., it mentioned six pieces of chassis frame
conducted by Phil. Navtech Services, Inc. from April 20- assembly with deformed body mounting bracket.
21, 1995 reveals that Case No. 03-245-42K/1 was However, it merely noted the same as coming from two
damaged by ATI stevedores due to overtightening of a bundles with no identifying marks.
cable sling hold during discharge from the vessel’s hatch
to the pier. Since the damage to the cargo was incurred Lastly, we agree with petitioner Westwind that the CA
during the discharge of the shipment and while under the erred in imposing an interest rate of 12% on the award of
supervision of the carrier, the latter is liable for the damages. Under Article 2209 of the Civil Code, when an
damage caused to the cargo. obligation not constituting a loan or forbearance of
money is breached, an interest on the amount of
This is not to say, however, that petitioner ATI is without damages awarded may be imposed at the discretion of
liability for the damaged cargo. the court at the rate of 6% per annum.64 In the similar
case of Belgian Overseas Chartering and Shipping NV v.
The functions of an arrastre operator involve the Philippine First Insurance Co., lnc., 65 the Court reduced
handling of cargo deposited on the wharf or between the the rate of interest on the damages awarded to the
establishment of the consignee or shipper and the ship’s carrier therein to 6% from the time of the filing of the
tackle. Being the custodian of the goods discharged from complaint until the finality of the decision.
a vessel, an arrastre operator’s duty is to take good care
of the goods and to turn them over to the party entitled WHEREFORE, the Court AFFIRMS with MODIFICATION the
to their possession.59 Decision dated October 15,2007 and the Resolution
dated January 11, 2008 of the Court of Appeals in CA-G.R.
Handling cargo is mainly the arrastre operator’s principal CV No. 69284 in that the interest rate on the award of
work so its drivers/operators or employees should ₱190,684.48 is reduced to 6% per annum from the date
observe the standards and measures necessary to of extrajudicial demand, until fully paid.
prevent losses and damage to shipments under its
custody.60 With costs against the petitioners in G.R. No. 181163 and
G.R. No. 181319, respectively.
While it is true that an arrastre operator and a carrier
may not be held solidarily liable at all times, 61 the facts of SO ORDERED.
these cases show that apart from ATI’s stevedores being
directly in charge of the physical unloading of the cargo, MARTIN S. VILLARAMA, JR.
its foreman picked the cable sling that was used to hoist Associate Justice
the packages for transfer to the dock. Moreover, the fact
that 218 of the 219 packages were unloaded with the
same sling unharmed is telling of the inadequate care
with which ATI’s stevedore handled and discharged Case
No. 03-245-42K/1.

With respect to petitioners ATI and Westwind’s liability,

we agree with the CA that the same should be confined
to the value of the one piece Frame Axle Sub without
Lower.

In the Bad Order Inspection Report62 prepared by

Universal Motors, the latter referred to Case No. 03-245-
42K/1 as the source of said Frame Axle Sub without
Lower which suffered a deep dent on its buffle plate. Yet,
it identified Case No. 03-245-51K as the container which
bore the six pieces Frame Assembly with Bush. Thus, in
Philam’s Complaint, it alleged that "the entire shipment
showed one (1) pc. FRAME AXLE SUB W/O LWR from
Case No. 03-245-42K/1 was completely deformed and
misaligned, and six (6) other pcs. of FRAME ASSEMBLY
WITH BUSH from Case No. 03-245-51K were likewise
completely deformed and misaligned."63 Philam later
claimed in its Appellee’s Brief that the six pieces of Frame
Assembly with Bush were also inside the damaged Case
No. 03-245-42K/1. G.R. No. 165285 June 18, 2012

However, there is nothing in the records to show LOMISES ALUDOS, deceased, substituted by FLORA
conclusively that the six Frame Assembly with Bush were ALUDOS, Petitioner,
likewise contained in and damaged inside Case No. 03- vs.
245-42K/1. In the Inspection Survey Report of Chartered JOHNNY M. SUERTE,* Respondent.
 DECISION [Signature [Signature
affixed] affixed]
BRION, J.: Domes M. Agnes M. Boras
Suerte (witness)
Before the Court is a petition for review on certiorari filed (witness)
under Rule 45 of the Rules of Court by Lomises Aludos,
through his wife Flora Aludos (Lomises).1 Lomises seeks [Signature [Signature
the reversal of the decision2 dated August 29, 2002 of the affixed] affixed]
Court of Appeals (CA) in CA-G.R. CV No. 63113, as well as Ana Dolores Aludos
the resolution3 dated August 17, 2004. Comnad (with
(witness) her
consent/witness)
THE FACTS

Sometime in January 1969, Lomises acquired from the Johnny made a subsequent payment of ₱23,000.00;
Baguio City Government the right to occupy two stalls in hence, a total of ₱68,000.00 of the ₱260,000.00 purchase
the Hangar Market in Baguio City, as evidenced by a price had been made as of 1984. Before full payment
permit issued by the City Treasurer. 4 could be made, however, Lomises backed out of the
agreement and returned the ₱68,000.00 to Domes and
On September 8, 1984, Lomises entered into an Jaime Suerte, the mother and the father of Johnny,
agreement with respondent Johnny M. Suerte for the respectively. The return of the ₱68,000.00 down payment
transfer of all improvements and rights over the two was embodied in a handwritten receipt6 dated October 9,
market stalls (Stall Nos. 9 and 10) for the amount of 1985:
₱260,000.00. Johnny gave a down payment of
₱45,000.00 to Lomises, who acknowledged receipt of the RECEIPT
amount in a document5 executed on the same date as the
agreement: ₱68,000.00

RECEIPT Received from Mr. Lomises Aludos the sum of Sixty-eight

thousand (₱68,000.00) Pesos as reimbursement of my
₱45,000.00 September 8, 1984 money.

Received the Sum of Forty Five Thousand Pesos Baguio City, October 9, 1985.
(₱45,000.00) from JOHNNY M. SUERTE, with postal
address at Kamog, Sablan, Benguet Province, Philippine [Signature affixed]
Currency as an advance or partial downpayment of JAIME SUERTE
Improvements and Rights over Stall Nos. 9 and 10,
situated at Refreshment Section, Hangar Market Witnesses
Compound, Baguio City, and the said amount will be
[Illegible signature]
deducted from the agreed proceeds of the transaction in
the amount of Two Hundred Sixty Thousand Pesos
(₱260,000.00), Philippine Currency and payable starting Through a letter dated October 15, 1985, Johnny
from September 1984 up to December 1985, and/or (16) protested the return of his money, and insisted on the
months. continuation and enforcement of his agreement with
Lomises. When Lomises refused Johnny’s protest, Johnny
This receipt will be formalise (sic) later, and the Deed of filed a complaint against Lomises before the Regional
Absolute Transfer of Improvements and Rights over the Trial Court (RTC), Branch 7, Baguio City, for specific
said Stall be executed immediately upon full payment of performance with damages, docketed as Civil Case No.
the balance stated in the above. 720-R. Johnny prayed that, after due proceedings,
judgment be rendered ordering Lomises to (1) accept the
payment of the balance of ₱192,000.00; and (2) execute
Right hand thumbmark: a final deed of sale and/or transfer the improvements
[Thumbmark affixed] and rights over the two market stalls in his favor.
LOMISES F. ALUDOS
(Registered Stall Holder) In a decision dated November 24, 1998,7 the RTC nullified
the agreement between Johnny and Lomises for failure to
With the Consent of the Wife: secure the consent of the Baguio City Government to the
[Signature affixed] agreement. The RTC found that Lomises was a mere
FLORA MENES lessee of the market stalls, and the Baguio City
(Wife) Government was the owner-lessor of the stalls. Under
Article 1649 of the Civil Code, "[t]he lessee cannot assign
Witness to Thumbmark and/or the lease without the consent of the lessor, unless there
Paid in the presence of: is a stipulation to the contrary." As the permit issued to
Lomises did not contain any provision that the lease of
the market stalls could further be assigned, and in the was a mere college student when the agreement was
absence of the consent of the Baguio City Government to entered into in 1984 and was dependent on his parents
the agreement, the RTC declared the agreement between for support. The actual lender of the amount was
Lomises and Johnny null and void. The nullification of the Johnny’s mother, Domes; Johnny’s name was placed on
agreement required the parties to return what had been the receipt dated September 8, 1984 so that in case the
received under the agreement; thus, the RTC ordered loan was not paid, the rights over the market stalls would
Lomises to return the down payment made by Johnny, be transferred to Johnny’s name, not to Domes who
with interest of 12% per annum, computed from the time already had a market stall and was thus disqualified from
the complaint was filed until the amount is fully paid. It acquiring another. The receipt dated September 8, 1984,
dismissed the parties’ claims for damages. Lomises pointed out, bears the signature of Domes, not
of Johnny.
Lomises appealed the RTC decision to the CA, arguing
that the real agreement between the parties was merely Even assuming that Johnny was the real creditor, Lomises
one of loan, and not of sale; he further claimed that the alleges that the loan had been fully paid when he turned
loan had been extinguished upon the return of the over the amount of ₱68,000.00 to Johnny’s parents, as
₱68,000.00 to Johnny’s mother, Domes. evidenced by the receipt dated October 9, 1985. Domes’
claim – that she was pressured to accept the amount – is
In a decision dated August 29, 2002,8 the CA rejected an implied admission that payment had nonetheless
Lomises’ claim that the true agreement was one of loan. been received. When Johnny died during the pendency
The CA found that there were two agreements entered of the case before the RTC, his parents became his
into between Johnny and Lomises: one was for the successors and inherited all his rights. For having received
assignment of leasehold rights and the other was for the the full amount of the loan, Johnny’s parents can no
sale of the improvements on the market stalls. The CA longer enforce payment of the loan.
agreed with the RTC that the assignment of the leasehold
rights was void for lack of consent of the lessor, the Lomises contends that there were no improvements
Baguio City Government. The sale of the improvements, made on the market stalls other than the stalls
however, was valid because these were Lomises’ private themselves, and these belong to the Baguio City
properties. For this reason, the CA remanded the case to Government as the lessor. A transfer of the stalls cannot
the RTC to determine the value of the improvements on be made without a transfer of the leasehold rights, in
the two market stalls, existing at the time of the which case, there would be an indirect violation of the
execution of the agreement. lease contract with the Baguio City Government. Lomises
further alleges that, at present, the market stalls are
Lomises moved for the reconsideration of the CA ruling, leased by Flora and her daughter who both obtained the
contending that no valid sale of the improvements could lease in their own right and not as Lomises’ successors.
be made because the lease contract, dated May 1, 1985,
between Lomises and the Baguio City Government, Johnny, through his remaining successor Domes (Johnny’s
supposedly marked as Exh. "A," provided that "[a]ll mother), opposed Lomises’ claim. The receipt dated
improvements [introduced shall] ipso facto become September 8, 1984 clearly referred to a contract of sale
properties of the City of Baguio."9 of the market stalls and not a contract of loan that
Lomises alleges. Although Johnny conceded that the sale
In a resolution dated August 17, 2004,10 the CA denied of leasehold rights to the market stalls were void for lack
the motion after finding that Lomises’ lawyer, Atty. of consent of the Baguio City Government, he alleged
Rodolfo Lockey, misrepresented Exh. "A" as the governing that the sale of the improvements should be upheld as
lease contract between Lomises and the Baguio City valid, as the CA did.
Government; the records reveal that Exh. "A" was merely
a permit issued by the City Treasurer in favor of Lomises. THE COURT’S RULING
The contract of lease dated May 1, 1985 was never
formally offered in evidence before the RTC and could The Court does not find the petition meritorious.
thus not be considered pursuant to the rules of evidence.
The Nature of the Agreement between the Parties
Lomises now appeals the CA rulings through the present
petition for review on certiorari. Lomises questions the nature of the agreement between
him and Johnny, insisting that it was a contract of loan,
not an assignment of leasehold rights and sale of
improvements. In other words, what existed was an
equitable mortgage, as contemplated in Article 1602, in
relation with Article 1604, of the Civil Code. "An
THE PARTIES’ ARGUMENTS equitable mortgage has been defined ‘as one which
although lacking in some formality, or form or words, or
Lomises insists that the agreement was merely one of other requisites demanded by a statute, nevertheless
loan, not of sale of improvements and leasehold rights. reveals the intention of the parties to charge real
Johnny could not afford to purchase from Lomises the property as security for a debt, there being no
two market stalls for ₱260,000.00 because the former impossibility nor anything contrary to law in this
intent.’"11 Article 1602 of the Civil Code lists down the negate his capacity to pay the purchase price, since he
circumstances that may indicate that a contract is an had 16 months to complete the payment. Apart from
equitable mortgage: Lomises’ bare claim that it was Johnny’s mother, Domes,
who was interested in acquiring his market stalls, we find
Art. 1602. The contract shall be presumed to be an no other evidence supporting the claim that Johnny was
equitable mortgage, in any of the following cases: merely acting as a dummy for his mother.

(1) When the price of a sale with right to Lomises contends that of the ₱68,000.00 given by
repurchase is unusually inadequate; Johnny, he only received ₱48,000.00, with the remaining
₱20,000.00 retained by Johnny as interest on the loan.
(2) When the vendor remains in possession as However, the testimonies of the witnesses presented
lessee or otherwise; during trial, including Lomises himself, negate this claim.
Judge Rodolfo Rodrigo (RTC of Baguio City, Branch VII)
asked Lomises’ lawyer, Atty. Lockey, if they deny receipt
(3) When upon or after the expiration of the
of the ₱68,000.00; Atty. Lockey said that they were not
right to repurchase another instrument
denying receipt, and added that they had in fact returned
extending the period of redemption or granting
the same amount.14 Judge Rodrigo accurately summarized
a new period is executed;
their point by stating that "there is no need to dispute
whether the ₱68,000.00 was given, because if [Lomises]
(4) When the purchaser retains for himself a tried to return that x x x he had received that."15 Witness
part of the purchase price; Atty. Albert Umaming said he counted the money before
he drafted the October 9, 1985 receipt evidencing the
(5) When the vendor binds himself to pay the return; he said that Lomises returned ₱68,000.00 in
taxes on the thing sold; total.16 Thus, if the transaction was indeed a loan and the
₱20,000.00 interest was already prepaid by Lomises, the
(6) In any other case where it may be fairly return of the full amount of ₱68,000.00 by Lomises to
inferred that the real intention of the parties is Johnny (through his mother, Domes) would not make
that the transaction shall secure the payment of sense.
a debt or the performance of any other
obligation. That Lomises retained possession of the market stalls
even after the execution of his agreement with Johnny is
In any of the foregoing cases, any money, fruits, or other also not an indication that the true transaction between
benefit to be received by the vendee as rent or otherwise them was one of loan. Johnny had yet to complete his
shall be considered as interest which shall be subject to payment and, until Lomises decided to forego with their
the usury laws. [Emphases ours.] agreement, had four more months to pay; until then,
Lomises retained ownership and possession of the
Based on Lomises’ allegations in his pleadings, we market stalls.17
consider three circumstances to determine whether his
claim is well-supported. First, Johnny was a mere college Lomises cannot feign ignorance of the import of the
student dependent on his parents for support when the terms of the receipt of September 8, 1984 by claiming
agreement was executed, and it was Johnny’s mother, that he was an illiterate old man. A witness (Ana
Domes, who was the party actually interested in Comnad) testified not only of the fact of the sale, but also
acquiring the market stalls. Second, Lomises received that Lomises’ daughter, Dolores, translated the terms of
only ₱48,000.00 of the ₱68,000.00 that Johnny claimed the agreement from English to Ilocano for Lomises’
he gave as down payment; Lomises said that the benefit;18 Lomises himself admitted this fact.19 If Lomises
₱20,000.00 represented interests on the loan. Third, believed that the receipt of September 8, 1984 did not
Lomises retained possession of the market stalls even express the parties’ true intent, he could have refused to
after the execution of the agreement. sign it or subsequently requested for a reformation of its
terms. Lomises rejected the agreement only after Johnny
Whether separately or taken together, these sought to enforce it.
circumstances do not support a conclusion that the
parties only intended to enter into a contract of loan. Hence, the CA was correct in characterizing the
agreement between Johnny and Lomises as a sale of
That Johnny was a mere student when the agreement improvements and assignment of leasehold rights.
was executed does not indicate that he had no financial
capacity to pay the purchase price of ₱260,000.00. At The Validity of the Agreement
that time, Johnny was a 26-year old third year
engineering student who operated as a businessman as a Both the RTC and the CA correctly declared that the
sideline activity and who helped his family sell goods in assignment of the leasehold rights over the two market
the Hangar Market.12 During trial, Johnny was asked stalls was void since it was made without the consent of
where he was to get the funds to pay the ₱260,000.00 the lessor, the Baguio City Government, as required
purchase price, and he said he would get a loan from his under Article 1649 of the Civil Code.20 Neither party
grandfather.13 That he did not have the full amount at the appears to have contested this ruling.
time the agreement was executed does not necessarily
Lomises, however, objects to the CA ruling upholding the of September 8, 1984. After this determination, the Court
validity of the agreement insofar as it involved the sale of ORDERS the heirs of Johnny M. Suerte to pay the amount
improvements on the stalls. Lomises alleges that the sale determined to the heirs of Lomises Aludos, who shall
of the improvements should similarly be voided because thereafter execute the deed of sale covering the
it was made without the consent of the Baguio City improvements in favor of the heirs of Johnny M. Suerte
Government, the owner of the improvements, pursuant and deliver the deed to them. Costs against the
to the May 1, 1985 lease contract.21 Lomises further petitioner.
claims that the stalls themselves are the only
improvements on the property and a transfer of the stalls SO ORDERED.
cannot be made without transferring the leasehold
rights. Hence, both the assignment of leasehold rights ARTURO D. BRION
and the sale of improvements should be voided. Associate Justice

The CA has already rejected the evidentiary value of the

May 1, 1985 lease contract between the Baguio City
Government and Lomises, as it was not formally offered
in evidence before the RTC; in fact, the CA admonished
Lomises’ lawyer, Atty. Lockey, for making it appear that it
was part of the records of the case. Under Section 34,
Rule 132 of the Rules of Court, the court shall consider no
evidence which has not been formally offered. "The offer
of evidence is necessary because it is the duty of the
court to rest its findings of fact and its judgment only and
strictly upon the evidence offered by the parties. Unless
and until admitted by the court in evidence for the
purpose or purposes for which such document is offered,
the same is merely a scrap of paper barren of probative
weight."22Although the contract was referred to in
Lomises’ answer to Johnny’s complaint23 and marked as
Exhibit "2" in his pre-trial brief,24 a copy of it was never
attached. In fact, a copy of the May 1, 1985 lease
contract "surfaced" only after Lomises filed a motion for
reconsideration of the CA decision. What was formally
offered was the 1969 permit, which only stated that
Lomises was permitted to occupy a stall in the Baguio
City market and nothing else.25 In other words, no
evidence was presented and formally offered showing
that any and all improvements in the market stalls shall
be owned by the Baguio City Government.

Likewise unsupported by evidence is Lomises’ claim that

the stalls themselves were the only improvements.
Hence, the CA found it proper to order the remand of the
case for the RTC to determine the value of the
improvements on the market stalls existing as of
September 8, 1984.26 We agree with the CA’s order of
remand. We note, however, that Lomises had already
returned the ₱68,000.00 and receipt of the amount has
been duly acknowledged by Johnny’s mother, Domes.
Johnny testified on October 6, 1986 that the money was
still with his mother.27 Thus, upon determination by the
RTC of the actual value of the improvements on the
market stalls, the heirs of Johnny Suerte should pay the
ascertained value of these improvements to Lomises,
who shall thereafter be required to execute the deed of
sale over the improvements in favor of the heirs of
Johnny.

WHEREFORE, under these premises, the Court hereby

AFFIRMS the ruling of the Court of Appeals for the
remand of the case to the Regional Trial Court of Baguio
City, Branch 7, for the determination of the value of the
improvements on Stall Nos. 9 and 10 at the Refreshment
Section of the Hangar Market Compound, Baguio City as
WESTMONT INVESTMENT G.R. No. 194128
Damages[4]arising from their investments against

CORPORATION, petitioner Westmont Investment

Corporation (Wincorp) and respondent Pearlbank
Petitioner, Present:
Securities Inc. (Pearlbank) before the RTC.

Wincorp and Pearlbank filed their separate motions to

PERALTA,* J.,
Acting Chairperson, dismiss.[5] Both motions were anchored on the ground
that the complaint of the Francias failed to state a cause
ABAD,
of action.On July 16, 2001, after several exchanges of
- versus -
MENDOZA, pleadings, the RTC issued an order[6] dismissing the
motions to dismiss of Wincorp and Pearlbank for lack of
SERENO,* * and
merit.
PERLAS-BERNABE, JJ.
Wincorp then filed its Answer, [7] while Pearlbank

AMOS P. FRANCIA, JR., filed its Answer with Counterclaim and Crossclaim
(against Wincorp).[8]
CECILIA ZAMORA,

BENJAMIN FRANCIA, and The case was set for pre-trial but before pre-trial
conference could be held, Wincorp filed its Motion to
PEARLBANK SECURITIES,
Dismiss Crossclaim[9] of Pearlbank to which the latter filed
Promulgated:
INC., an opposition.[10] The RTC denied Wincorps motion to
dismiss crossclaim.[11]
Respondents.
December 7, 2011
The pre-trial conference was later conducted after the
parties had filed their respective pre-trial briefs. The
parties agreed on the following stipulation of facts, as
x----------------------------------------------------------------- x contained in the Pre-Trial Order[12] issued by the RTC
on April 17, 2002:

DECISION 1. The personal and juridical

circumstances of the parties
MENDOZA, J.: meaning, the plaintiffs and both
corporate defendants;

At bench is a petition for review on certiorari 2. That plaintiffs caused the service of a
under Rule 45 of the Rules of Court assailing the (1) July demand letter on Pearl Bank
on February 13, 2001 marked as
27, 2010 Decision[1] of the Court of Appeals (CA) in CA- Exhibit E;
G.R. CV No. 84725, which affirmed with modification the
3. Plaintiffs do not have personal
September 27, 2004 Decision [2] of the Regional Trial knowledge as to whether or not
Court, Branch 56, Makati City (RTC) in Civil Case No. 01- Pearl Bank indeed borrowed the
funds allegedly invested by the
507; and (2) its October 14, 2010 Resolution, [3] which plaintiff from Wincorp; and
denied the motion for the reconsideration thereof.
4. That the alleged confirmation
THE FACTS: advices which indicate Pearl Bank
On March 27, 2001, respondents Amos P. Francia, Jr., as alleged borrower of the funds
allegedly invested by the plaintiffs
Cecilia Zamora and Benjamin Francia (the Francias) filed a
in Wincorp do not bear the
Complaint for Collection of Sum of Money and
 signature or acknowledgment of
Pearl Bank. (Emphases supplied)
3. On April 13, 2000, they
again tried to get back the principal
After several postponements requested by Wincorp, trial
amount they invested plus interest but,
on the merits finally ensued. The gist of the testimony of
again, they were frustrated.[17]
Amos Francia, Jr. (Amos) is as follows:

4. Constrained, they
1. Sometime in 1999, he was
demanded from Pearlbank[18] their
enticed by Ms. Lalaine Alcaraz, the bank
investments. There were several
manager of Westmont Bank,
attempts to settle the case, but all
Meycauayan, Bulacan Branch, to make
proved futile.
an investment with Wincorp, the banks
financial investment arm, as it was
After the testimony of Amos Francia, Jr., the
offering interest rates that were 3% to
Francias filed their Formal Offer of Evidence. [19] Pearlbank
5% higher than regular bank interest
filed its Comment/Objection,[20] while Wincorp did not
rates. Due to the promise of a good
file any comment or objection. After all the exhibits of
return of investment, he was convinced
the Francias were admitted for the purposes they were
to invest. He even invited his sister,
offered, the Francias rested their case.
Cecilia Zamora and his brother,
Benjamin Francia, to join
Thereafter, the case was set for the presentation
him. Eventually, they placed their
of the defense evidence of Wincorp. On March 7, 2003,
investment in the amounts of
three (3) days before the scheduled hearing, Wincorp
₱1,420,352.72 and ₱2,522,745.34 with
filed a written motion to postpone the hearing on even
Wincorp in consideration of a net
date, as its witness, Antonio T. Ong, was unavailable
interest rate of 11% over a 43-day
because he had to attend a congressional hearing.
spread.Thereafter, Wincorp, through
Wincorps substitute witness, Atty. Nemesio Briones, was
Westmont Bank, issued Official Receipt
likewise unavailable due to a previous commitment in the
Nos. 470844[13] and 470845,[14] both
Securities and Exchange Commission.
dated January 27, 2000, evidencing the
said transactions.[15]
The RTC denied Wincorps Motion to Postpone
and considered it to have waived its right to present
2. When the 43-day placement
evidence.[21] The Motion for Reconsideration of Wincorp
matured, the Francias wanted to retire
was likewise denied.[22]
their investments but they were told
that Wincorp had no funds. Instead,
On August 14, 2003, Pearlbank filed its
Wincorp rolled-over their placements
Demurrer to Evidence.[23] The RTC granted the same in its
and issued Confirmation
Order[24] dated January 12, 2004. Hence, the complaint
Advices [16]
extending their placements
against Pearlbank was dismissed, while the case was
for another 34 days. The said
considered submitted for decision insofar as Wincorp was
confirmation advices indicated the
concerned.
name of the borrower as Pearlbank.
The maturity values were
₱1,435,108.61 and ₱2,548,953.86 with
a due date of April 13, 2000.
On September 27, 2004, the RTC rendered a decision [25] in The CA affirmed with modification the ruling of the RTC in
favor of the Francias and held Wincorp solely liable to its July 27, 2010 Decision, the decretal portion of which
them. The dispositive portion thereof reads: reads:

WHEREFORE, judgment is rendered

WHEREFORE, premises
ordering defendant Westmont
considered, the present Appeal
Investment Corporation to pay the
is DENIED. The Decision dated 27
plaintiffs, the following amounts:
September 2004 of the Regional Trial
Court, Branch 56, Makati City in Civil
1. ₱3,984,062.47
Case No. 01-507 is hereby AFFIRMED
representing the
WITH MODIFICATION of the awards.
aggregate amount of
Defendant-appellant Wincorp is hereby
investment
ordered to pay plaintiffs-appellees the
placements made by
amounts of ₱3,984,062.47 plus 11% per
plaintiffs, plus 11%
annum by way of stipulated interest to
per annum by way of
be computed from 13 April 2000 until
stipulated interest, to
fully paid and ₱100,000.00 as attorneys
be counted from 10
fees and cost of suit.
March 2000 until fully
paid; and
SO ORDERED.
2. 10% of the above-
mentioned amount as
The CA explained:
and for attorneys fees
and costs of suit.
After a careful and judicious scrutiny of
the records of the present case,
SO ORDERED.
together with the applicable laws and
Wincorp then filed a motion for reconsideration, but it jurisprudence, this Court finds
defendant-appellant Wincorp solely
was denied by the RTC in its Order[26] dated November 10,
liable to pay the amount
2004. of ₱3,984,062.47 plus 11% interest per
annum computed from 10 March
2000 to plaintiffs-appellees.
Not in conformity with the pronouncement of the RTC,
Wincorp interposed an appeal with the CA, alleging the
Preliminarily, the Court will rule on the
following arguments: procedural issues raised to know what
pieces of evidence will be considered in
I. THE REGIONAL TRIAL COURT ERRED this appeal.
WHEN IT HELD THAT WINCORP AS
AGENT OF PLAINTIFFS-APPELLEES WAS Section 34, Rule 132 of the Rules on
LIABLE TO THE LATTER Evidence states that:
NOTWITHSTANDING THE CLEAR
WRITTEN AGREEMENT TO THE The court shall consider no evidence
CONTRARY; which has not been formally
offered. The purpose for which the
II. THE REGIONAL TRIAL COURT ALSO evidence is offered must be specified.
ERRED WHEN IT HELD THAT
PEARLBANK, THE ACTUAL BORROWER A formal offer is necessary because
AND RECIPIENT OF THE MONEY judges are mandated to rest their
INVOLVED IS NOT LIABLE TO THE findings of facts and their judgment
PLAINTIFFS-APPELLEES; and only and strictly upon the evidence
offered by the parties at the trial.Its
III. THE REGIONAL TRIAL COURT ERRED function is to enable the trial judge to
IN DISMISSING ALL TOGETHER THE know the purpose or purposes for
CROSS-CLAIM OF WINCORP AGAINST which the proponent is presenting the
PEARLBANK.[27] evidence. On the other hand, this
allows opposing parties to examine the
evidence and object to its admissibility.
Moreover, it facilitates review as the
appellate court will not be required to
review documents not previously
scrutinized by the trial court. Evidence
not formally offered during the trial can of ₱1,420,352.72 and ₱2,522,754.34
not be used for or against a party with defendant-appellant Wincorp to
litigant. Neither may it be taken into earn a net interest at the rate of 11%
account on appeal. over a 43-day period was distinctly
proved by the testimony of plaintiff-
The rule on formal offer of evidence is appellee Amos Francia, Jr. and
not a trivial matter. Failure to make a supported by Official Receipt Nos.
formal offer within a considerable 470844 and 470845 issued by
period of time shall be deemed a defendant-appellant Wincorp through
waiver to submit it.Consequently, any Westmont Bank. The facts that
evidence that has not been offered plaintiffs-appellees failed to get back
shall be excluded and rejected. their investment after 43 days and that
their investment was rolled over for
Prescinding therefrom, the very glaring another 34 days were also established
conclusion is that all the documents by their oral evidence and confirmed by
attached in the motion for the Confirmation Advices issued by
reconsideration of the decision of the defendant-appellant Wincorp, which
trial court and all the documents indicate that their investment already
attached in the defendant-appellants amounted to ₱1,435,108.61
brief filed by defendant-appellant and ₱2,548,953.86 upon its maturity
Wincorp cannot be given any probative on 13 April 2000. Likewise, the fact that
weight or credit for the sole reason plaintiffs-appellees investment was not
that the said documents were not returned to them until this date by
formally offered as evidence in the defendant-appellant Wincorp was
trial court because to consider them at proved by their evidence. To top it all,
this stage will deny the other parties defendant-appellant Wincorp never
the right to rebut them. negated these established facts
because defendant-appellant Wincorps
The arguments of defendant-appellant claim is that it received the money of
Wincorp that the plaintiffs-appellees plaintiffs-appellees but it merely acted
made an erroneous offer of evidence as as an agent of plaintiffs-appellees and
the documents were offered to prove that the actual borrower of plaintiffs-
what is contrary to its content and that appellees money is defendant-appellee
they made a violation of the parol PearlBank. Hence, defendant-appellant
evidence rule do not hold water. Wincorp alleges that it should be the
latter who must be held liable to the
It is basic in the rule of evidence that plaintiffs-appellees.
objection to evidence must be made
after the evidence is formally offered. However, the contract of agency and
In case of documentary evidence, offer the fact that defendant-appellee
is made after all the witnesses of the PearlBank actually received their
party making the offer have testified, money were never proven. The records
specifying the purpose for which the are bereft of any showing that
evidence is being offered. It is only at defendant-appellee PearlBank is the
this time, and not at any other, that actual borrower of the money invested
objection to the documentary evidence by plaintiffs-appellees as defendant-
may be made. appellant Wincorp never presented any
evidence to prove the same.
As to oral evidence, objection
thereto must likewise be raised at the Moreover, the trial court did not err in
earliest possible time, that is, after the dismissing defendant-appellant
objectionable question is asked or after Wincorps crossclaim as nothing in the
the answer is given if the objectionable records supports its claim. And such
issue becomes apparent only after the was solely due to defendant-appellant
answer was given. Wincorp because it failed to present
xxx any scintilla of evidence that would
implicate defendant-appellee PearlBank
In the case at bench, a perusal of the to the transactions involved in this case.
records shows that the plaintiffs- The fact that the name of defendant-
appellees have sufficiently established appellee PearlBank was printed in the
their cause of action by preponderance Confirmation Advices as the actual
of evidence. The fact that on 27 January borrower does not automatically makes
2000, plaintiffs-appellees placed their defendant-appellee PearlBank liable to
investment in the amounts the plaintiffs-appellees as nothing
 therein shows that defendant-appellee THE LOAN TRANSACTIONS WAS
PearlBank adhered or acknowledged PEARLBANK
that it is the actual borrower of the
amount specified therein.
SUBSTANTIAL JUSTICE DICTATES THAT
THE EVIDENCE PROFERRED BY
Clearly, the plaintiffs-appellees were
WINCORP SHOULD BE CONSIDERED TO
able to establish their cause of action
DETERMINE WHO, AMONG THE
against defendant-appellant Wincorp,
PARTIES, ARE LIABLE TO PLAINTIFFS-
while the latter failed to establish its
RESPONDENTS[30]
cause of action against defendant-
appellee PearlBank.
ISSUE
Hence, in view of all the foregoing, the
Court finds defendant-appellant The core issue in this case is whether or not the
Wincorp solely liable to pay the amount
of ₱3,984,062.47 representing the CA is correct in finding Wincorp solely liable to pay the
matured value of the plaintiffs- Francias the amount of ₱3,984,062.47 plus interest of
appellees investment as of 13 April
2000 plus 11% interest per annum by 11% per annum.
way of stipulated interest counted from
maturity date (13 April 2000).
Quite clearly, the case at bench presents a
As to the award of attorneys fees, this
Court finds that the undeniable source factual issue.
of the present controversy is the failure
As a rule, a petition for review under Rule 45 of the Rules
of defendant-appellant Wincorp to
return the principal amount and the of Court covers only questions of law. Questions of fact
interest of the investment money of
plaintiffs-appellees, thus, the latter was are not reviewable and cannot be passed upon by this
forced to engage the services of their
counsel to protect their right. It is Court in the exercise of its power to review. The
elementary that when attorneys fees is distinction between questions of law and questions of
awarded, they are so adjudicated,
because it is in the nature of actual fact is established. A question of law exists when the
damages suffered by the party to
whom it is awarded, as he was doubt or difference centers on what the law is on a
constrained to engage the services of a
certain state of facts. A question of fact, on the other
counsel to represent him for the
protection of his interest. Thus, hand, exists if the doubt centers on the truth or falsity of
although the award of attorneys fees to
plaintiffs-appellees was warranted by the alleged facts.[31] This being so, the findings of fact of
the circumstances obtained in this case,
this Court finds it equitable to reduce the CA are final and conclusive and this Court will not
the same from 10% of the total award review them on appeal.
to a fixed amount of ₱100,000.00.[28]

While it goes without saying that only questions

Wincorps Motion for Reconsideration was
of law can be raised in a petition for review on certiorari
likewise denied by the CA in its October 14,
under Rule 45, the same admits of exceptions,
2010 Resolution.[29]
namely: (1) when the findings are grounded entirely on
speculations, surmises, or conjectures; (2) when the
Not in conformity, Wincorp seeks relief with this
inference made is manifestly mistaken, absurd, or
Court via this petition for review alleging that −
impossible; (3) when there is a grave abuse of discretion;
(4) when the judgment is based on misappreciation of
PLAINTIFFS-RESPONDENTS
facts; (5) when the findings of fact are conflicting; (6)
HAVE NO CAUSE OF ACTION AGAINST
WINCORP AS THE EVIDENCE ON when in making its findings, the same are contrary to the
RECORD SHOWS THAT THE ACTUAL
admissions of both appellant and appellee; (7) when the
BENEFICIARY OF THE PROCEEDS OF
findings are contrary to those of the trial court; (8) when
the findings are conclusions without citation of specific Significantly, the elements of the contract of agency are:
evidence on which they are based; (9) when the facts set (1) consent, express or implied, of the parties to establish
forth in the petition as well as in the petitioners main and the relationship; (2) the object is the execution of a
reply briefs are not disputed by the respondent; and juridical act in relation to a third person; (3) the agent
(10) when the findings of fact are premised on the acts as a representative and not for himself; (4) the agent
supposed absence of evidence and contradicted by the acts within the scope of his authority.[37]
evidence on record.[32] In this case, the principal-agent relationship between the

Francias and Wincorp was not duly established by

The Court finds that no cogent reason exists in
evidence. The records are bereft of any showing that
this case to deviate from the general rule.
Wincorp merely brokered the loan transactions between

the Francias and Pearlbank and the latter was the actual
Wincorp insists that the CA should have based its
recipient of the money invested by the former. Pearlbank
decision on the express terms, stipulations, and
did not authorize Wincorp to borrow money for
agreements provided for in the documents offered by the
it. Neither was there a ratification, expressly or impliedly,
Francias as the legal relationship of the parties was
that it had authorized or consented to said transaction.
clearly spelled out in the very documents introduced by

them which indicated that it merely brokered the loan

As to Pearlbank, records bear out that the Francias
transaction between the Francias and Pearlbank.[33]
anchor their cause of action against it merely on the

strength of the subject Confirmation Advices bearing the

Wincorp would want the Court to rule that there
name PearlBank as the supposed borrower of their
was a contract of agency between it and the Francias
investments. Apparently, the Francias ran after Pearlbank
with the latter authorizing the former as their agent to
only after learning that Wincorp was reportedly
lend money to Pearlbank. According to Wincorp, the two
bankrupt.[38] The Francias were consistent in saying that
Confirmation Advices presented as evidence by the
they only dealt with Wincorp and not with Pearlbank. It
Francias and admitted by the court, were competent
bears noting that even in their Complaint and during the
proof that the recipient of the loan proceeds was
pre-trial conference, the Francias alleged that they did
Pearlbank.[34]
not have any personal knowledge if Pearlbank was

indeed the recipient/beneficiary of their investments.

The Court is not persuaded.
Although the subject Confirmation Advices indicate the
In a contract of agency, a person binds himself to render
name of Pearlbank as the purported borrower of the said
some service or to do something in representation or on
investments, said documents do not bear the signature
behalf of another with the latters consent.[35] It is said
or acknowledgment of Pearlbank or any of its officers.
that the underlying principle of the contract of agency is
to accomplish results by using the services of others to This cannot prove the position of Wincorp that it was

do a great variety of things. Its aim is to extend the Pearlbank which received and benefited from the
personality of the principal or the party for whom investments made by the Francias. There was not even a
another acts and from whom he or she derives the
promissory note validly and duly executed by Pearlbank
authority to act. Its basis is representation. [36]
which would in any way serve as evidence of the said

borrowing.
 All told, the CA committed no reversible error in

Another significant point which would support the stand rendering the assailed July 27, 2010 Decision and in

of Pearlbank that it was not the borrower of whatever issuing the challenged October 14, 2010 Resolution.

funds supposedly invested by the Francias was the fact WHEREFORE, the petition is DENIED.

that it initiated, filed and pursued several cases against

Wincorp, questioning, among others, the latters acts of SO ORDERED.

naming it as borrower of funds from investors.[39]

JOSE CATRAL MENDOZA

It bears stressing too that all the documents attached by Associate Justice

Wincorp to its pleadings before the CA cannot be given

any weight or evidentiary value for the sole reason that,

as correctly observed by the CA, these documents

were not formally offered as evidence in the trial court.

To consider them now would deny the other parties the

right to examine and rebut them. Section 34, Rule 132 of

the Rules of Court provides:

Section 34. 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 offer of evidence is necessary because it is

the duty of the court to rest its findings of fact and its

judgment only and strictly upon the evidence offered by

the parties. Unless and until admitted by the court in

evidence for the purpose or purposes for which such

document is offered, the same is merely a scrap of paper

barren of probative weight.[40]

The Court cannot, likewise, disturb the findings

of the RTC and the CA as to the evidence presented by

the Francias. It is elementary that objection to evidence

must be made after evidence is formally offered. [41] It

appears that Wincorp was given ample opportunity to file

its Comment/Objection to the formal offer of evidence of G.R. No. 192024

the Francias but it chose not to file any.
FORTUNE TOBACCO CORPORATION, Petitioner,
vs.
COMMISSIONER OF INTERNAL REVENUE, Respondent.
 DECISION 'Section 145. Cigars and Cigarettes- (A) Cigars. – There
shall be levied, assessed and collected on cigars a tax of
MENDOZA, J.: One peso (P 1.00) per cigar.

This is a petition for review on certiorari under Rule 45 of (B) Cigarettes Packed by Hand. -There shall be levied,
the Rules of Court filed by Fortune Tobacco assessed and collected on cigarettes packed by hand a tax
Corporation (petitioner), assailing the March 12, 2010 of Forty centavos (P0.40) per pack.
Decision1 of the Court of Tax Appeals En Banc (CTA En
Banc) and its April 26, 2010 Resolution2 in CTA EB Case (C) Cigarettes Packed by Machine. - There shall be levied,
No. 533, which affirmed in toto the April 30, 2009 assessed and collected on cigarettes packed by machine a
Decision3 and the August 18, 2009 Resolution4 of the tax at the rates prescribed below:
Former First Division of the Court of Tax Appeals (CTA
Division) in CTA Case No. 7367. [1] If the net retail price (excluding the excise tax
and the value-added tax) is above Ten pesos (P
The facts of this case are akin to those obtaining in G.R. 10.00) per pack, the tax shall be Twelve (P12.00)
Nos. 167274-275 and G.R. No. 180006. In G.R. No. per pack:
167274-275, the Court eventually sustained petitioner’s
claim for refund of overpaid excise taxes for the period [2] If the net retail price (excluding the excise tax
covering January 1, 2002 to December 31, 2002. In G.R. and the value added tax) exceeds Six pesos and
No. 180006, the Court likewise sustained petitioner’s Fifty centavos (P6.50) but does not exceed Ten
claim for refund of overpaid excise tax paid during in pesos (P10.00) per pack, the tax shall be Eight
2003 and the period covering January 1 to May 31, 2004. Pesos (P8.00) per pack.

The subject claim for refund involves the amount of [3] If the net retail price (excluding the excise tax
excise taxes allegedly overpaid during the period and the value-added tax) is Five pesos (P5.00)
beginning June 1, 2004 up to December 31, 2004. For a but does not exceed Six Pesos and fifty centavos
better understanding of the controversy, a recapitulation (P6.50) per pack, the tax shall be Five pesos
of the factual and procedural antecedents is in order. (P5.00) per pack;
Thus, as stated in the following portions of the CTA En
Banc decision: [4] If the net retail price (excluding the excise tax
and the value-added tax] is below Five pesos
Petitioner is the manufacturer/producer of, among (P5.00) per pack, the tax shall be One peso
others, the following cigarette brands, with tax rate (P1.00) per pack;
classification based on net retail price prescribed by
Annex "D" to Republic Act (R.A.) No. 4280, to wit: Variants of existing brands of cigarettes which are
introduced in the domestic market after the effectivity of
R.A. No. 8240 shall be taxed under the highest
Brand Tax Rate
classification of any variant of that brand.
Champion M 100 P 1.00
The excise tax from any brand of cigarettes within the
Camel F King P 1.00 next three (3) years from the effectivity of R.A. No. 8240
shall not be lower than the tax, which is due from each
Camel Lights Box brand on October 1, 1996. Provided, however, that in
P 1.00
20's cases where the excise tax rate imposed in paragraphs
(1), (2), (3) and (4) hereinabove will result in an increase
Camel Filters Box in excise tax of more than seventy percent (70%), for a
P 1.00
20's brand of cigarette, the increase shall take effect in two
tranches: fifty percent (50%) of the increase shall be
Winston F King P 5.00
effective in 1997 and one hundred percent (100%) of the
increase shall be effective in 1998.
Winston Lights P 5.00

Duly registered or existing brands of cigarettes or new

Immediately prior to January 1, 1997, the above- brands thereof packed by machine shall only be packed in
mentioned cigarette brands were subject to ad valorem twenties.
tax pursuant to then Section 142 of the Tax Code of 1977,
as amended. However, on January 1, 1997, R.A. No. 8240 The rates of excise tax on cigars and cigarettes under
took effect causing a shift from the ad valorem tax (AVT) paragraphs (1), (2), (3) and (4) hereof, shall be increased
system to the specific tax system. As a result of such shift, by twelve percent (12%) on January 1, 2000.
the aforesaid cigarette brands were subjected to specific
tax under Section 142 thereof, now renumbered as New brands shall be classified according to their current
Section 145 of the Tax Code of 1997. Section 145 is net retail price.
quoted thus:
For the above purpose, 'net retail price' shall mean the Hence, this petition.
price at which the cigarette is sold on retail in twenty (20)
major supermarkets in Metro Manila (for brands of Essentially, petitioner claims that it paid a total amount of
cigarettes marketed nationally), excluding the amount P219,566,450.00 in overpaid excise taxes. For petitioner,
intended to cover the applicable excise tax and value- considering that the CTA found Revenue Regulation No.
added tax. For brands which are marketed only outside 17-99 (RR 17-99) to be contrary to law, there should be
Metro Manila, the 'net retail price' shall mean the price at no obstacle to the refund of the total amount excess
which the cigarette is sold in five (5) major supermarkets excise taxes it had paid.5
in the region excluding the amount intended to cover the
applicable excise tax and the value-added tax. In a nutshell, the sole issue for the resolution of the Court
is: whether or not there is sufficient evidence to warrant
The classification of each brand of cigarettes based on its the grant of petitioner’s claim for tax refund.
average net retail price as of October 1, 1996, as set forth
in Annex "D," shall remain in force until revised by The petition lacks merit.
Congress.
The question of sufficiency of
'Variant of a brand' shall refer to a brand on which a petitioner’s evidence to support
modifier is prefixed and/or suffixed to the root name of its claim for tax refund is a
the brand and/or a different brand which carries the question of fact
same logo or design of the existing brand.
Unlike in the proceeding had in G.R. Nos. 167274-275
To implement the provisions for a twelve percent (12%) and G.R. No. 180006, the denial of petitioner’s claim for
increase of excise tax on cigars and cigarettes packed by tax refund in this case is based on the ground that
machines by January 1, 2000, the Secretary of Finance, petitioner failed to provide sufficient evidence to prove
upon recommendation of the respondent Commissioner its claim and the amount thereof. As a result, petitioner
of Internal Revenue, issued Revenue Regulations No. 17- seeks that the Court re-examine the probative value of its
99, dated December 16, 1999, xxx RR No. 17-99 likewise evidence and determine whether it should be refunded
provides in the last paragraph of Section 1 thereof, "that the amount of excise taxes it allegedly overpaid.
the new specific tax rate for any existing brand of cigars,
cigarettes packed by machine, distilled spirits, wines and
This cannot be done.
fermented liquor shall not be lower than the excise tax
that is actually being paid prior to January 1, 2000."
The settled rule is that only questions of law may be
raised in a petition under Rule 45 of the Rules of Court. It
On 31 March 2005, petitioner filed a claim for tax credit
is not this Court’s function to analyze or weigh all over
or refund under Section 229 of the National Internal
again the evidence already considered in the proceedings
Revenue Code of 1997 (1997 NIRC) for erroneously or
below, the Court’s jurisdiction being limited to reviewing
illegally collected specific taxes covering the period June
only errors of law that may have been committed by the
to December 31, 2004 in the total amount of
lower court. The resolution of factual issues is the
Php219,566,450.00.
function of the lower courts, whose findings on these
matters are received with respect. A question of law
On November 14, 2005, petitioner filed a Petition for which the Court may pass upon must not involve an
Review which was raffled to the Former First Division of examination of the probative value of the evidence
this Court. Respondent in his Answer raised among presented by the litigants.6 This is in accordance with
others, as a Special and Affirmative Defense, that the Section 1, Rule 45 of the Rules of Court, as amended,
amount of TWO HUNDRED NINETEEN MILLION FIVE which reads:
HUNDRED SIXTY SIX THOUSAND FOUR HUNDRED FIFTY
PESOS (Php219,566,450.00) being claimed by petitioner
Section 1. Filing of petition with Supreme Court. – A
as alleged overpaid excise tax for the period covering 1
party desiring to appeal by certiorari from a judgment,
June to 31 December 2004, is not properly documented.
final order or resolution of the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the Regional
After trial on the merits, the Former First Division of this Trial Court or other courts, whenever authorized by law,
Court rendered the assailed Decision, dated April 30, may file with the Supreme Court a verified petition for
2009, which consistently ruled that RR 17-99 is contrary review on certiorari. The petition may include an
to law and that there is insufficiency of evidence on the application for a writ of preliminary injunction or other
claim for refund. provisional remedies and shall raise only questions of
law, which must be distinctly set forth. The petitioner
Petitioner filed its motion for reconsideration therefrom, may seek the same provisional remedies by verified
and which was denied by the Former First Division on motion filed in the same action or proceeding at any time
August 18, 2009. Petitioner elevated its claim to the during its pendency.
CTA En Banc, but was rebuffed after the tax tribunal
found no cause to reverse the findings and conclusions of [Emphasis and Underlining Supplied]
the CTA Division.
In fact, the rule finds greater significance with respect to above-mentioned documents, as well as the other
the findings of specialized courts such as the CTA, the documentary evidence submitted by petitioner were
conclusions of which are not lightly set aside because of refused admission for being merely photocopies.14
the very nature of its functions which is dedicated
exclusively to the resolution of tax problems and has Section 3 of Administrative Matter (A.M.) No. 05-11-07
accordingly developed an expertise on the subject, unless CTA, the Revised Rules of the Court of Tax Appeals,
there has been an abuse or improvident exercise of provides that the Rules of Court shall apply suppletorily
authority.7 in the proceeding before the tax tribunal.

Moreover, it has been said that the proper interpretation In this connection, Section 3 of Rule 130 of the Rules of
of the provisions on tax refund that does not call for an Court lays down the Best Evidence Rule with respect to
examination of the probative value of the evidence the presentation of documentary evidence. Thus:
presented by the parties-litigants is a question of
law.8Conversely, it may be said that if the appeal Section 3. Original document must be
essentially calls for the re-examination of the probative produced; exceptions. — When the subject of inquiry is
value of the evidence presented by the appellant, the the contents of a document, no evidence shall be
same raises a question of fact. Often repeated is the admissible other than the original document itself, except
distinction that there is a question of law in a given case in the following cases:
when doubt or difference arises as to what the law is on a
certain state of facts; there is a question of fact when
(a) When the original has been lost or
doubt or difference arises as to the truth or falsehood of
destroyed, or cannot be produced in court,
alleged facts.9
without bad faith on the part of the offeror;

Verily, the sufficiency of a claimant’s evidence and the

(b) When the original is in the custody or under
determination of the amount of refund, as called for in
the control of the party against whom the
this case, are questions of fact,10 which are for the
evidence is offered, and the latter fails to
judicious determination by the CTA of the evidence on
produce it after reasonable notice;
record.
(c) When the original consists of numerous
Significantly, it bears noting that Section 5, Rule 45 of the
accounts or other documents which cannot be
Rules of Court provides that the failure of petitioner to
examined in court without great loss of time and
comply with the requirements on the contents of the
the fact sought to be established from them is
petition shall be sufficient ground for its dismissal. While
only the general result of the whole; and
jurisprudence provides exceptions to these rules, the
subject petition does not fall under any of those so
(d) When the original is a public record in the
excepted. Thus, for this reason alone, the petition must
custody of a public officer or is recorded in a
fail.
public office. (2a)
The CTA committed no
In this case, petitioner did not even attempt to provide a
reversible error in denying
plausible reason as to why the original copies of the
petitioner’s claim for tax refund
documents presented could not be produced before the
for insufficient evidence.
CTA or any reason that the application of any of the
foregoing exceptions could be justified. Although
A. Petitioner relied heavily on photocopied documents
petitioner presented one (1) witness to prove its claim, it
to prove its claim.
appears that this witness was not even a signatory to any
of the disputed documentary evidence.
Granting that the Court could take a second look and
review petitioner’s evidence, the result would be the
As correctly pointed out by the CTA Division, petitioner
same.
knew all along that it had committed the foregoing
procedural lapses when it filed its Formal Offer of
The claim for refund hinges on the admissibility and the Evidence. Although petitioner orally manifested that it
probative value of the following photocopied documents was going to seek reconsideration of the CTA Division
that allegedly contain a recording of petitioner’s excise order excluding its evidence, in the end, petitioner did
payments for the period covering June 1, 2004 up to not even bother to file any such motion for
December 31, 2004: reconsideration at all.

(1) Production, Removals and Payments for All B. Petitioner failed to offer any proof or tender of
FTC Brands;11 and excluded evidence.

(2) Excise Tax Refund Computation Summary.12 At any rate, even if the Court should find fault in the
ruling of the CTA Division in denying the admission of
Although both the CTA Division and the CTA En petitioner’s evidence, the result would be the same
Banc provisionally admitted petitioner’s Exhibit "C," 13 the because petitioner failed to offer any proof or tender of
excluded evidence. As aptly discussed by the CTA En refund on the ground that RR 17-99 was a valid issuance.
Banc: Thus, for its failure to seasonably avail of the proper
remedy provided under Section 40, Rule 132 of the Rules
Petitioner posits that if their exhibits, specifically Exhibits of Court, petitioner is precluded from doing so at this late
"G", "G-1" to "G-7" and Exhibit "H", are admitted stage of the case. Clearly, estoppel has already stepped
together with the testimony of their witness, the same in.
would sufficiently prove their claim. A closer scrutiny of
the records shows that petitioner did not file any offer of Although it may be suggested that the CTA should have
proof or tender of excluded evidence. been more liberal in the application of technical rules of
evidence, it should be stressed that a liberal application,
Section 40, Rule 132 of the Rules of Court provides: or suspension of the application of procedural rules, must
remain as the exception to the well-settled principle that
Sec. 40. Tender of excluded evidence. – If documents or rules must be complied with for the orderly
things offered in evidence are excluded by the court, the administration of justice. As pointed out in Marohomsalic
offeror may have the same attached to or made part of v. Cole,18
the record. If the evidence excluded is oral, the offeror
may state for the record the name and other personal While procedural rules may be relaxed in the interest of
circumstances of the witness and the substance of the justice, it is well-settled that these are tools designed to
proposed testimony. facilitate the adjudication of cases. The relaxation of
procedural rules in the interest of justice was never
The rule is that evidence formally offered by a party may intended to be a license for erring litigants to violate the
be admitted or excluded by the court. If a party's offered rules with impunity. Liberality in the interpretation and
documentary or object evidence is excluded, he may application of the rules can be invoked only in proper
move or request that it be attached to form part of the cases and under justifiable causes and circumstances.
records of the case. If the excluded evidence is oral, he While litigation is not a game of technicalities, every case
may state for the record the name and other personal must be prosecuted in accordance with the prescribed
circumstances of the witness and the substance of the procedure to ensure an orderly and speedy
proposed testimony. These procedures are known as administration of justice.19
offer of proof or tender of excluded evidence and are
made for purposes of appeal. If an adverse judgment is [Emphases Supplied]
eventually rendered against the offeror, he may in his
appeal assign as error the rejection of the excluded And, as stressed in the case of Daikoku Electronics Phils.,
evidence. Inc. v. Raza:20

It is of record that the denial of the excluded evidence To be sure, the relaxation of procedural rules cannot be
was never assigned as an error in this appeal. Thus, this made without any valid reasons proffered for or
Court cannot pass upon nor consider the propriety of underpinning it. To merit liberality, petitioner must show
their denial. Moreover, this Court cannot and should not reasonable cause justifying its noncompliance with the
consider the documentary and oral evidence presented rules and must convince the Court that the outright
which are not considered to be part of the records in the dismissal of the petition would defeat the administration
first place. Thus, Exhibits "G", "G- 1" to "G-7" and Exhibit of substantive justice. x x x The desired leniency cannot
"H", together with the testimony of petitioner's witness be accorded absent valid and compelling reasons for such
thereon, cannot be admitted and be given probative a procedural lapse. x x x
value.15
We must stress that the bare invocation of "the interest
It has been repeatedly ruled that where documentary of substantial justice" line is not some magic wand that
evidence was rejected by the lower court and the offeror will automatically compel this Court to suspend
did not move that the same be attached to the record, procedural rules. Procedural rules are not to be belittled,
the same cannot be considered by the appellate let alone dismissed simply because their non-observance
court,16 as documents forming no part of proofs before may have resulted in prejudice to a party’s substantial
the appellate court cannot be considered in disposing the rights. Utter disregard of the rules cannot be justly
case.17 For the appellate court to consider as evidence, rationalized by harping on the policy of liberal
which was not offered by one party at all during the construction.21
proceedings below, would infringe the constitutional
right of the adverse party – in this case, the CIR, to due [Emphases Supplied]
process of law.
In this case, as explained above, petitioner utterly failed
It also bears pointing out that at no point during the to not only comply with the basic procedural
proceedings before the CTA En Banc and before this requirement of presenting only the original copies of its
Court has petitioner offered any plausible explanation as documentary evidence, but also to adhere to the
to why it failed to properly make an offer of proof or requirement to properly make its offer of proof or tender
tender of excluded evidence. Instead, petitioner harps on of excluded evidence for the proper consideration of the
the fact that respondent CIR simply refused its claim for appellate tribunal.
Indeed, to apply technical rules strictly against the CIR burden of justifying the exemption by words too plain to
because it simply relied on the validity of RR 17-99 – but be mistaken and too categorical to be misinterpreted; it is
not be strict with respect to petitioner’s shortcomings, never presumed nor be allowed solely on the ground of
would be unfair. For this would go against the principle equity.23 In addition, one who claims that he is entitled to
that taxation is the rule, exemption/refund, the a tax refund must not only claim that the transaction
exception. subject of tax is clearly and unequivocally not subject to
tax - the amount of the claim must still be proven in the
C. Petitioner’s evidence, even if considered, fails to normal course,24 in accordance with the prescribed rules
prove that it is entitled to its claim for refund. on evidence.

Finally, as correctly held by the CTA En Banc, even if the After all, taxes are the lifeblood of the nation.25
Court would consider petitioner’s otherwise excluded
evidence, the same would still fail to sufficiently prove WHEREFORE, the petition is DENIED.
the petitioner’s entitlement to its claim for refund. The
disquisition of the CTA Division, as quoted in the CTA En SO ORDERED.
Banc decision, is hereby reiterated with approval:
JOSE CATRAL MENDOZA
xxx, the documentary exhibits are not sufficient to prove Associate Justice
the amounts being claimed by petitioner as refund.
Looking at Exhibit ‘G,’ the same is a mere summary of
excise taxes paid by petitioner for ALL of its cigarette
brands. This Court cannot verify the amounts of excise
taxes paid for the brands in issue which are Champion M-
100s, Camel Filter Kings, Winston Filter Kings, and
Winston Lights.

This Court cannot likewise rely solely on petitioner's

Excise Tax Refund Computation Summary. The figures
therein must be verified through other documentary
evidence which this Court must look into and which
petitioner failed to properly provide.22 [Emphases
Supplied]

Clearly, it is petitioner’s burden to prove the allegations

made in its claim for refund. For a claim for refund to be
granted, the manner in proving it must be in accordance
with the prescribed rules of evidence. It would have been
erroneous had the CTA En Banc relied on petitioner's own
Excise Tax Refund Computation Summary or the
unsatisfactory explanation of its lone witness to justify its
claim for tax refund.

Indeed, while it is true that litigation is not a game of

technicalities – it is equally true, however, that every case
must be established in accordance with the prescribed
procedure to ensure an orderly and speedy
administration of justice. In all, the Court finds that the
failure of petitioner to prove its claim in accordance with
the settled evidentiary rules merits its dismissal.

Lest it be misunderstood, this Court is not reversing,

directly or indirectly, its pronouncements in G.R. Nos.
167274-75 and G.R. No. 180006 that RR 17-99 is
invalid.1âwphi1 This Court is simply pointing to the rule
that claims for refunds are the exception, rather than the
rule, and that each claim for refund, in order to be
granted, must be clearly set forth and established in
accordance with the rules of evidence.

As it has been said, time and again, that claims for tax
refunds are in the nature of tax exemptions which result
in loss of revenue for the government. Upon the person
claiming an exemption from tax payments rests the