G.R. No.
L-29271 August 29, 1980 The following day, December 21st, the Fiscal's office filed the following
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ADELINO BARDAJE, defendant-appellant.
MELENCIO-HERRERA, J.:
The accused ADELINO Bardaje in this case, after trial, has been convicted of
Forcible Abduction with Rape, and sentenced to death. The case is before us on
automatic review.
On December 20, 1965, MARCELINA Cuizon lodged the following complaint with
the Court of First Instance of Samar against ADELINO and five (5) others
'namely, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal and Fidel Ansuas
(hereinafter called the FIVE OTHERS):
The undersigned complainant, after having been duly sworn to according to
law, accuses Adelino Bardaje, Lucio Malate, Pedro Odal, Adriano Odal, Silvino
Odal and Fidel Ansuas of the crime of Rape, committed as follows:
That on or about the period from the 14th day to 17th day of
December, 1965, in Bo. Lopig, Sta. Rita, Province of Samar,
Philippines, and within the jurisdiction of this Honorable Court
the above-named accused, conspiring, confederating together
and helping one another, with lewd design, by means of force
and intimidation, and at nighttime, did then and there wilfully,
unlawfully and feloniously drag one Marcelina Cuizon from the
house of one Norma Fernandez and brought her to a far away
place and once there, accused Adelino Bardaje, by means of
force and intimidation forcibly had sexual intercourse with her
several times while his co-accused were on guard.
Contrary to law. (Emphasis supplied).
ADELINO was arrested on December 17th, and it was on December 20th, when
he signed the alleged confession, Exhibit "C", admitting having kidnapped and
molested MARCELINA, 1 which was probably the basis for MARCELINA's
complaint, presumably prepared with the help of the Fiscal. What has been
noticed is that, in Exhibit "C", ADELINO had mentioned that, besides the FIVE
OTHERS, a sixth, Domingo Odal, was with the group when MARCELINA was
"kidnapped". There is no indication in the record as to why Domingo Odal was
not included in MARCELINA's complaint as one of the accused.
Information with the Court:
The undersigned Assistant Provincial Fiscal accuses Adelino
Bardaje, Lucio Malate, Pedro Odal, Adriano Odal, Silvino Odal
and Fidel Ansuas of the crime of Rape with Illegal
Detention committed as follows:
That on or about the period from the 14th day to 17th day of December, 1965, in
Bo. Crossing, Municipality of Sta. Rita, Province of Samar, Philippines and within
the jurisdiction of this Honorable court the above-named accused, conspiring,
confederating together and helping one another, with Lucio Malate, Pedro Odal,
Adriano Odal, Silvino Odal and Fidel Ansuas, with lewd design, by means of
force and intimidation, armed with bolos and at nighttime, did then and there
wilfully, unlawfully and feloniously drag one Marcelina Cuizon, a minor of 14
years old, from the house of one Norma Fernandez and brought her to a far
away place and once there, accused Adelino Bardaje, by means of force and
intimidation forcibly had sexual intercourse with her for several times while his
co-accused were on guard.
That the commission of the crime the aggravating circumstances that it was
committed in an uninhabited place and with the aid of armed men, were present.
(Emphasis supplied).
It will be noted that the complaint filed directly by MARCELINA with the Court
was amended by the Fiscal in the Information. While MARCELINA charged
ADELINO only with Rape, the Fiscal charged him with "Rape with Illegal
Detention". MARCELINA merely alleged that she was dragged from the house of
Norma Fernandez by means of force and intimidation and at nighttime. On the
other hand, the Information added that the accused were "armed with bolos". The
name of the barrio was also changed from Lopig to Crossing. Lastly, the
Information included the allegation that the crime of Rape with Illegal Detention
was committed with the "aggravating circumstances that it was committed in an
uninhabited place and with the aid of armed men".
Of the six (6) persons accused, the FIVE OTHERS were never arrested, and only
ADELINO stood trial. The period of the offense was from December 14th to 17th,
with the complaint having been filed on December 20th, or barely three (3) days
thereafter. With that time frame in mind, an analysis of the Information will show
the assumption that only ADELINO was the principal culprit while the FIVE
OTHERS were either principals by cooperation or accomplices. Thus, the clause
"with" Lucio Malate, Pedro Odal, Mariano Odal, Silvino Odal and Fidel Ansuas"
indicates that it was ADELINO who had dragged MARCELINA "with" the help of
the FIVE OTHERS. Both the complaint and Information also indicated that
ADELINO was the only one who committed the rape, while the FIVE OTHERS
were merely accomplices.
On June 2, 1966, before the arraignment of ADELINO, the Information was
amended to include the allegation that MARCELINA was detained and deprived
of liberty for a period of th0ree (3) days, which allegation could be taken into
account in connection with Illegal Detention 2 but not in connection with Forcible
Abduction. 3 Since according to Exhibit "C", MARCELINA was "kidnapped" at
midnight of December 14th, and ADELINO was arrested in the morning of
December 17th, or an interval of less than 72 Hours, it could not be correctly
pleaded that MARCELINA was deprived of liberty for three (3) days. 4
After the trial was concluded, ADELINO's lawyer submitted his Memorandum on
July 26, 1967, in which he specifically argued that "the prosecution did not
establish the elements of Rape and Illegal Detention as prescribed by Articles
335 and 267 of the Revised Penal Code." It was only in the Memorandum of the
Fiscal, dated July 27, 1967, when the position was taken that the crime which
should be imputed to ADELINO is Rape with Forcible Abduction. The
prosecution's Memorandum stated:
Although the information is for Rape with Illegal Detention
instead of Rape with Forcible Abduction, yet from the body of
the information it could be clearly gleaned that the elements of
abduction are sufficiently alleged therein and hence the
accused can be convicted thereunder (People vs. Emiliano
Javete, CA 01956-57-CR April 7, 1964 (82-1965).
The following day, July 28, 1967, the trial Court found ADELINO guilty of Forcible
Abduction with Rape with the aggravating circumstances of dwelling and aid of
armed men, and sentenced him to death.
The version of complainant MARCELINA Cuizon, 14 years of age, is that in
December, 1965, she and her mother were living in the house of her aunt, Sofia
Fernandez, at Barrio Crossing, Sta. Rita, Samar, where she worked as a
beautician. At 7:00 o'clock in the evening of December 14, 1965 while she was
then eating supper, ADELINO, whom she knew when they were "still small", and
who was her classmate in Grade II (1960), accompanied by the FIVE OTHERS,
entered the house and began drinking "sho hoc tong" which they brought along.
After the liquor had been fully consumed, Silvino Odal broke the kerosene lamp
causing complete darkness. She then ran to the room where her mother was.
ADELINO, Pedro Odal, Fidel Ansuas, and Adriano Odal, followed her, tried to
extricate her from her mother's embrace and dragged the two of them to the sala.
Pedro Odal choked the mother's neck thereby loosening her hold on the
daughter and the four males, two of whom were armed with bolos, forced her
downstairs and by holding and dragging her, brought her to the mountain about
two kilometers from Barrio Crossing. That was about 12 midnight. On the way,
ADELINO slapped her rendering her unconscious. She regained consciousness
in a hut, with ADELINO holding her hands, and removing her panty. She bit and
kicked him. Despite her struggle, ADELINO succeeded in having sexual
intercourse with her while his other companions stayed outside on guard.
Under cross-examination, MARCELINA declared that she did not know who
owned the hut and that it was just a one-room affair where a woman and two
small children lived; that she and Appellant slept in that same room as the
woman, while the FIVE OTHERS slept near the kitchen. 5
At about 8:00 o'clock the following morning, December 15, ADELINO and the
FIVE OTHERS brought her to another mountain, 6 kilometers farther, arriving
there past twelve o'clock noon at the house of one called Ceferino (also called
Cipriano) who lived there with his family. She was kept in one room. Outside the
room were Pedro Odal, Adriano Odal and Fidel Ansuas, still armed with bolos,
drinking and guarding her. In the evening, ADELINO had another sexual
intercourse with her even though she bit and kicked him and shouted for help
which was to no avail as all present were relatives of ADELINO, with the latter
Ceferino "Tatay" She curled the hair of Narita (daughter of Ceferino) the next
day, because ADELINO threatened to kill her if she did not. Her curling
paraphernalia was taken by Adriano Odal, upon ADELINO's instructions, from
Norma Fernandez (her cousin) who gave the equipment as she (Norma) was
also threatened. MARCELINA and her "captors" stayed in Ceferino's house for
two days. In the morning of December 17, two soldiers with her father, Alejo
Cuizon, arrived. The soldiers apprehended ADELINO while the FIVE OTHERS
jumped down the window and fled. Upon her father, she embraced him and
cried. They all returned to Barrio Crossing. She and her mother, Maria
Fernandez, then went to Catbalogan, where she filed a complaint at the Fiscal's
Office on December 20, 1965 and submitted to a medical examination at the
Samar Provincial Hospital.
When cross-examined, Complainant admitted that Ceferino, his wife. and seven
children were living in the same hut where she was taken the second time, which
hut was about waist high from the ground, consisted of one room, 3 x 2 meters, a
sala, 6 x 3 meters, and a kitchen. Between the room and the sala was a wall of
split bamboos so that noise inside the room could be heard clearly from the other
side. 6
Dr. Vitus Hobayan, Jr., Resident Physician at the Samar Provincial Hospital,
declared that he examined MARCELINA on December 20, 1965 and issued a
Medical Certificate with the following findings:
1. No evidence of external injuries around the vulva or any part
of the body.
2. Hymen no intact, presence of old healed laceration at 4, 7,
12 o'clock.
3. Vagina easily admits two fingers.
4. Vaginal smear negative for spermatozoa 7
Explaining the "old healed laceration", the doctor stated that laceration may have
been caused by possible sexual intercourse or other factors, and if it were
intercourse, he estimated that it could have occured " say, two weeks or one
month" or possibly more. 8
For his part, ADELINO, aged 18, admitted having had carnal knowledge of
MARCELINA but denied having raped her. He claims that they eloped on
December 14 to 17, 1965 as previously planned, they having been sweethearts
since November 12, 1964. As such, they used to date in Tacloban and "anything
goes". MARCELINA's family used to have a house in Barrio Crossing but now
MARCELINA just stays in the house of her aunt, Sofia, which is about five
houses away from theirs. In the evening of December 14, 1965, while Sofia,
MARCELINA's mother and others were eating, MARCELINA handed him a bag
and beauty culture equipment through the window, went downstairs, after which
the two of them walked to the mountains, to Ceferino Armada's house. Ceferino
was a cousin of ADELINO's mother. He and MARCELINA slept in the bedroom
with 18-year old Narita, Ceferino's daughter. While in that hut, food was brought
to them by his sister, Nenita. MARCELINA curled Narita's hair the next day.
In the morning of December 17, 1965, Sets. Terado and Gacelos, accompanied
by MARCELINA's father, Alejo Cuizon, apprehended him for having kidnapped
MARCELINA. The latter ran to him and embraced him and said she was to
blame. notwithstanding, he was boxed by the soldiers as instructed by
MARCELINA's father and taken to Maulong PC Headquarters for questioning.
During the investigation, he was boxed and kicked and was forced to sign a
statement implicating the FIVE OTHERS as his companions even if untrue. He
did not know who attested to his statement as one Sgt. Gacelos took the
document elsewhere.
Ceferino Armada, 60 years of age, the owner of the hut where MARCELINA was
allegedly forcibly brought the second time, corroborated that portion of
ADELINO's testimony regarding their stay in his house adding that MARCELINA
and ADELINO had told him that they had eloped; that MARCELINA even offered
to curl his daughter's hair (Narita's and Concepcion's), and helped in house
chores and in the threshing of palay, while ADELINO helped in carrying palay
because it was rainy.
The trial Court found the prosecutors version of the incident more worthy of
credence stating that Complainant had no improper motive to implicate ADELINO
in such a detestable crime as Rape.
On the basis of the evidence, testimonial and documentary, we find that the guilt
of ADELINO has not been established beyond reasonable doubt.
In crimes against chastity, the conviction or acquittal of an accused depends
almost entirely on the credibility of a complainant's testimony since by the
intrinsic nature of those crimes they usually involve only two persons — the
complainant and the accused. The offended party's testimony, therefore, must be
subjected to thorough scrutiny for a determination of its veracity beyond
reasonable doubt.
In the instant case, we find MARCELINA's charge that she was forcibly abducted
and afterwards raped by ADELINO in conspiracy with FIVE OTHERS highly
dubious and inherently improbable.
To start with, according to the medical findings, "no evidence of external injuries
was found around the vulva or any part of the body" of Complainant, a fact which
is strange, indeed, considering that Complainant was allegedly "dragged"
slapped" into unconsciousness, "wrestled" with, and criminally abused. Physical
evidence is of the highest order and speaks more eloquently than an witnesses
put together. We are also faced with the medical finding of "old healed
lacerations" in the hymen which, according to the testimony of the examining
physician would have occurred two weeks or even one month before if said
lacerations had been caused by sexual intercourse. This expert opinion bolsters
the defense that MARCELINA and ADELINO had previous amorous relations at
the same time that it casts serious doubts on the charge of intercourse by force
and intimidation.
Secondly, by Complainant's own admission, the first hut she was taken to was a
small one-room affair occupied by a woman and two small children. Her charge,
therefore, that she was ravished in that same room is highly improbable and
contrary to human experience.
Thirdly, from her own lips, Complainant testified that the second hut where she
was taken, that of Ceferino Armada, consisted of a small room separated from
the sala by a wall of split bamboos. Further, that Ceferino with his wife and seven
children all lived therein. It challenges human credulity that she could have been
sexually abused with so many within hearing and distance. It is unbelievable, too,
that under those circumstances the FIVE OTHERS could have stood guard
outside, armed with bolos and drinking, while ADELINO allegedly took advantage
of her. If rape were, indeed, their malevolent intent, they would, in all probability,
have taken turns in abusing her. That they did not, indicates that there was,
indeed, some special relationship between MARCELINA and ADELINO.
Furthermore, with people around, and the hut constructed as it was, it would
have been an easy matter for MARCELINA to have shouted and cried for help.
Surely, the old man Ceferino, his wife and/or his children could not have been
insensible to her outcries notwithstanding their relationship to ADELINO. The
aphorism still rings true that evidence to be believed must not only come from the
mouth of a credible witness but must be credible in itself.
Additionally, Complainant admits that she even curled the hair of Narita, one of
Ceferino's daughters, a fact inconsistent with her allegation of "captivity". That
she was threatened with death if she did not accede to such an inconsequential
request defies credulity. The livelihood is that, as the defense maintains,
MARCELINA was not forcibly abducted but that she and ADELINO had, in fact,
eloped and that she had brought her beauty culture paraphernalia with her, or,
that she herself had sent for them from her cousin Norma Fernandez voluntarily
and not under threat from ADELINO.
The totality of the foregoing circumstances count with such great weight and
significance that they lend an aura of improbability and reasonable doubt to the
allegation that MARCELINA had been "kidnapped" or "illegally detained" and that
when she and ADELINO engaged in sexual intercourse, it was because of force
or intimidation exercised upon her. They are circumstances that were overlooked
by the trial Court and justify a reversal of its finding of guilt as an exception to the
established rule that the findings of fact of a trial Judge based on the relative
credibility of witnesses are entitled to great respect and will not be disturbed by
appellate Courts.
cause of the accusation against him. This was not done in regards to ADELINO
who all the time was under the impression that he was being tried for Rape with
Illegal Detention, and not for Forcible Abduction with Rape. If ADELINO had
known that he was being tried for Forcible Abduction with Rape, he may have
changed the strategy or tactics of his defense. Not that it could be said he would
have done so; but he should have been advised he had the right, and given the
opportunity, to do so.
Again, one of the rights of an accused is "to have compulsory process issued to
secure the attendance of witnesses on his behalf. 14 ADELINO had stated that,
while MARCELINA was in the house of Ceferino Armada, she curled the hair of
Narita. one of the latter's children, as well as the hair of other girls in the vicinity.

This case also constitutes an exception to the general belief that a young girl ADELINO wanted to have Narita testify on his behalf, and a subpoena had been
would not expose herself to the ordeal of public trial if she were not motivated issued to her. But instead of taking effective steps to have Narita brought to
solely by a desire to have the culprit who had ravished and shamed her placed Court, the lower court gave responsibility for Narita's attendance to the defense,
behind bars. As we view it, MARCELINA was confronted with a paradoxical expressly stating that, if the defense was not able to bring her to the Court, her
situation as a daughter of relative tender age who could not shamefacedly admit testimony will be dispensed with. The record shows:
to her parents that she had eloped and voluntarily submitted to sexual
intercourse, since that elopement must have met with righteous indignation on ATTY. BOHOL
the part of her parents. As a result, MARCELINA was faced with no other choice
but to charge ADELINO with rape or incur the ire of her parents and social
disrepute from a small community. I appear as counsel for the accused. Up to
now, Your Honor, the witnesses we have
been expecting have not yet arrived. This
In respect of the alleged confession of ADELINO, suffice it to re-state that "an representation, with the consent of the Clerk
extrajudicial confession made by an accused shag not be sufficient ground for of Court have wired the Chief of Police of
conviction unless corroborated by evidence of corpus delicti. 9 Corpus delicti is Sta. Rita, Samar to bring Ceferino Armada
proved when the evidence on record shows that the crime prosecuted had been and Narita Armada tomorrow for the hearing,
committed. That proof has not been met in the case at bar, the evidence continuation of this case for those persons
establishing more of an elopement rather than kidnapping or illegal detention or mentioned to testify, your Honor, for the
forcible abduction, and much less rape. Moreover, ADELINO, aged 18, was by accused. We pray, Your Honor, that we be
himself when being investigated by soldiers, 10 without benefit of counsel nor of given time to hear from the Chief of Police to
anyone to advise him of his rights. Aside from his declaration that Ws confession bring those persons tomorrow, Your Honor.
was obtained through maltreatment and violence, 11 it was also vitiated by a
procedural irregularity testified to by no less than prosecution witness Sgt. Pedro
Gacelos to the effect that he and room after he presented the statement to the COURT
Clerk of Court, Mr. Rojas. 12 There is reason to believe, therefore that the so
called confession was attested without ADELINO's presence so that the latter What will be the nature of the testimonies of
cannot be said to have duly subscribed and sworn to it. those witnesses.

It should also be noted that throughout the hearings before the trial Court, it was xxx xxx xxx
assumed that ADELINO was being held responsible for the complex crime of
Rape with Illegal Detention. While it is true that an accused can be punished for a COURT
crime described by the facts alleged in tile Information despite a wrong
designation of the crime in the preamble of the Information, 13 yet, in capital
cases, it should be desirable that, whenever a discrepancy is noted between the How about the other girl?
designation of the crime made by the Fiscal and the crime described by the facts
pleaded in his Information. The lower Court should call attention of the accused ATTY. BOHOL
to the discrepancy, so that the accused may be fully apprised of the nature and
Narita Armada will substantially be
corroborative, Your Honor.
COURT
Suppose the two witnesses do not arrive
tomorrow, for which this case is set also?
ATTY. BOHOL
If we receive information and find that those
witnesses could really not come for this
case, Your Honor, I will be constrained to
submit the case for decision based on the
testimony of the accused. However, Your
Honor, if it will be all right with the Honorable
Court and we find that there is hope that
within this week Ceferino Armada could
come here, in view of the distance, I pray
before the Honorable Court that we be given
time within this week to present Ceferino
Armada, and upon his failure, submit the
case for decision
COURT
The Court will not allow that anymore,
anyway this case is set for tomorrow. The
Court wail grant the postponement today on
condition that any witness not presented
tomorrow will be considered waived Afterall
as you have manifest, 4 their testimonies will
be corroborative.
xxx xxx xxx
COURT
What I mean is that you should have taken
the necessary precaution for the attendance
of your witness today considering that there
is a subpoena for the witnesses.-
ORDER - for the reason that accused have
no more witnesses to present today, the trial
of this case is hereby Postponed for
tomorrow, July 26, 1967 at 8:30 A.M., with
the warning that witnesses not presented
during that day shall be considered
waived. 15
Considering that this case involved a prosecution for a capital offense, the lower
Court acted precipitously in not having Narita brought to Court, by ordering her
arrest if necessary ADELINO was deprived of his right "to have compulsory
process issued to secure the attendance of witnesses on his behalf."
Crucial questions should also have been asked by the trial Court of witnesses.
MARCELINA testified before the lower Court on December 1, 1966. On
December 12, 1966, P Gacelos, the PC Sgt. who investigated the complaint
against ADELINO, testified:
Q. Was that investigation of M Cuizon
reduced to writing?
A. Yes, Sir. 16
It would have been advisable if the lower Court had right then and there asked
for the production of the written statement of MARCELINA.
The medical report, Exhibit "B", implied that MARCELINA could have had sexual
intercourse previous to December 14th. On the other hand, ADELINO had
testified that he and MARCELINA used to go together to Tacloban, and while
there several times, "we had sexual intercourse because she likes
it." 17 Considering the possible infliction of the death penalty on ADELINO, the
lower Court could have asked MARCELINA if she had had sexual intercourse
prior to December 14th and, if so, if it was with ADELINO.
Further, there was possibility that ADELINO and MARCELINA had really been
sweethearts. The lower Court could have asked MARCELINA if she realized that,
charging ADELINO with Rape with Illegal Detention, the latter could be
sentenced to death. If that had been explained to her clearly by the lower Court,
she might then have admitted that she was neither raped nor "kidnapped" nor
illegally detained.
MARCELINA could had been examined on the two matters mentioned above,
with the Court excluding the public from the hearing under the provisions of Rule
119, Section 14. MARCELINA might have testified without feeling the pressure of
her relatives or other persons, if such pressure had in fact existed.
It may not be amiss to state then that just as in pleas of guilty where a grave
offense is charged trial Judges have been enjoined to refrain from accepting
them with alacrity but to be extra solicitous in seeing to it that an accused fully
understands the import of his plea, so also, in prosecutions for capital offenses, it
behooves the trial Courts to exercise greater care in safeguarding the rights of an
accused. The trial Judge should also take a more active role by means of
searching questions in the examination of witnesses for the ascertaintment of the
truth and credibility of their testimonies so that any judgment of conviction
imposing the supreme penalty may rest on firm and unequivocal grounds. The
life and liberty of an individual demand no less.
WHEREFORE, upon reasonable doubt, the judgment appealed from imposing
the death penalty, is reversed and the appellant, Adelino Bardaje, acquitted of
the crime with which he is charged. His immediate release is ordered unless lie is
held on other charges.
Costs de oficio.
SO ORDERED.
Fernando, C.J., Teehankee, Barredo, Concepcion, Jr., Fernandez, Guerrero,
Abad Santos and De Castro, JJ., concur.
Makasiar, * J., took no part.
Separate Opinions
AQUINO, J., dissenting:
I dissent. The following is a summary of the facts proven by the prosecution, as
set forth in the brief filed by Solicitor General Felix Q. Antonio, Assistant Solicitor
General Crispin V. Bautista and Solicitor Santiago M. Kapunan:
In the evening of December 14, 1965, Marcelina Cuizon, a fourteen-year-old
beautician was in the house of her aunt, Sofia Fernandez, located at Barrio
Crossing, Santa Rita, Samar.
At seven-thirty on that evening, while Marcelina and her mother Maria Fernandez
were taking supper, six persons, namely, Adelino Bardaje, Silvino Odal, Pedro
Odal, Adriano Odal, Fidel Ansuas and Lucio Malate, all accused in this case,
entered the house bringing with them some bottles of Sho Hoc Tong, a locally
manufactured liquor.
Once inside the house, the accused began drinking the liquor. After consuming
the liquor, Silvino Odal put out the light by breaking the kerosene lamp. Afraid of
what the men would do, Marcelina and her mother went inside the bedroom but
the accused followed them and grabbed Marcelino While Marcelina was shouting
for help, Maria laid aside the baby whom she was carrying and put her arms
tightly around Marcelino in a desperate effort to protect her.
The accused dragged both mother and daughter into the sala. To take away
Marcelino from her mother's tenacious grasp, Fidel Ansuas aimed his bolo at
Maria, threatening to strike her, while Pedro Odal put his hands around her neck
and squeezed it with such force that Maria became unconscious, thus releasing
Marcelina from her protective embrace.
Then, the accused bodily carried Marcelina into the street and brought her to a
hut in the mountain two kilometers away. On the way, Marcelina lost
consciousness after a vigorous struggle to free herself from the accused and
after Bardaje had slapped her violently.
When Marcelina regained consciousness, she found herself in a hut with Bardaje
in the act of removing her underwear. She fought energetically to resist Bardaje's
advances by biting and kicking him, but all to no avail because she was no match
to his physical strength. Bardaje held her hands and consummated sexual
intercourse with her.
On the following day, December 15, Bardaje and his five companions brought
Marcelino to the house of one Cipriano where she was ravished two times. She
was held captive in the house of Cipriano for two days until she was rescued by
Constabulary soldiers Pedro Gacelos and Nemesio Tirador accompanied by her
father.
Bardaje was taken to the Constabulary headquarters in Catbalogan where he
was investigated. Bardaje admitted that he and his companions forcibly abducted
Marcelina and brought her to a hut in the mountain where he raped her. His
admission was reduced to writing and sworn to by him (Exh-C to C3).
Marcelina was brought to the Samar Provincial Hospital where she underwent a
medical examination.
Bardaje was the only one arrested and tried. The crime charged in the
information is the complex crime of "rape with Legal detention".
There may be some reasonable doubt as to the commission of rape because of
the finding that the victim was no longer a virgin when the incident took place, the
absence of external injuries on the victim's body and the claim of Bardaje that he
with the victim in Tacloban City.
But there is no doubt that Bardaje and his companions committed kidnapping
and serious illegal detention of a minor as well as of a "female", an offense
penalized in article 267(4) of the Revised Penal Code with reclusion perpetua to
death.
Republic Act No. 18 specifically made kidnapping of a minor and a woman a
capital offense in order to deter the kidnapping of minors and women, a crime
which was very rampant after liberation.
The victim might have been a girl, who, like many teenagers of today, does not
safeguard her virtue or chastity and easily succumbs to the temptation of the
flesh. (Time Magazine reports that at the Puerta del Sol in Madrid, Spain, there is
a billboard on which is emblazoned Oscar Wildes witticism "Puedo resistir todo
excepto la tentacion.")
Bardaje and his companions grievously and brazenly deprived the victim of her
liberty by forcibly taking her against her will and the will of her mother and
detaining her in a hut in the mountain. (See People vs. Ablaza, L-27352, October
31, 1969,30 SCRA 173; People vs. Tungala, 102 Phil. 1161; People vs. Ching
Suy Siong and Mata, 97 Phil. 989.)
The victim, being a minor, was still under parental authority. Her parents were
entitled to her custody and to keep her in their company. They were obligated to
take care of her and to see to it that her rights were respected.
Even a layman would deduce from the manner in which the victim was snatched
and detained, that the accused committed an outrageous and wrongful act which
should be drastically punished. To acquit them would be a miscarriage of justice.
I vote for the imposition of reclusion perpetua on the accused and the imposition
of an indemnity of P10,000.
Separate Opinions
AQUINO, J., dissenting:
I dissent. The following is a summary of the facts proven by the prosecution, as
set forth in the brief filed by Solicitor General Felix Q. Antonio, Assistant Solicitor
General Crispin V. Bautista and Solicitor Santiago M. Kapunan:
In the evening of December 14, 1965, Marcelina Cuizon, a fourteen-year-old
beautician was in the house of her aunt, Sofia Fernandez, located at Barrio
Crossing, Santa Rita, Samar.
At seven-thirty on that evening, while Marcelina and her mother Maria Fernandez
were taking supper, six persons, namely, Adelino Bardaje, Silvino Odal, Pedro
Odal, Adriano Odal, Fidel Ansuas and Lucio Malate, all accused in this case,
entered the house bringing with them some bottles of Sho Hoc Tong, a locally
manufactured liquor.
Once inside the house, the accused began drinking the liquor. After consuming
the liquor, Silvino Odal put out the light by breaking the kerosene lamp. Afraid of
what the men would do, Marcelina and her mother went inside the bedroom but
the accused followed them and grabbed Marcelino While Marcelina was shouting
for help, Maria laid aside the baby whom she was carrying and put her arms
tightly around Marcelino in a desperate effort to protect her.
The accused dragged both mother and daughter into the sala. To take away
Marcelino from her mother's tenacious grasp, Fidel Ansuas aimed his bolo at
Maria, threatening to strike her, while Pedro Odal put his hands around her neck
and squeezed it with such force that Maria became unconscious, thus releasing
Marcelina from her protective embrace.
Then, the accused bodily carried Marcelina into the street and brought her to a
hut in the mountain two kilometers away. On the way, Marcelina lost
consciousness after a vigorous struggle to free herself from the accused and
after Bardaje had slapped her violently.
When Marcelina regained consciousness, she found herself in a hut with Bardaje
in the act of removing her underwear. She fought energetically to resist Bardaje's
advances by biting and kicking him, but all to no avail because she was no match
to his physical strength. Bardaje held her hands and consummated sexual
intercourse with her.
On the following day, December 15, Bardaje and his five companions brought
Marcelino to the house of one Cipriano where she was ravished two times. She
was held captive in the house of Cipriano for two days until she was rescued by
Constabulary soldiers Pedro Gacelos and Nemesio Tirador accompanied by her
father.
Bardaje was taken to the Constabulary headquarters in Catbalogan where he
was investigated. Bardaje admitted that he and his companions forcibly abducted
Marcelina and brought her to a hut in the mountain where he raped her. His
admission was reduced to writing and sworn to by him (Exh-C to C3).
Marcelina was brought to the Samar Provincial Hospital where she underwent a
medical examination.
Bardaje was the only one arrested and tried. The crime charged in the
information is the complex crime of "rape with Legal detention".
There may be some reasonable doubt as to the commission of rape because of
the finding that the victim was no longer a virgin when the incident took place, the
absence of external injuries on the victim's body and the claim of Bardaje that he
with the victim in Tacloban City.

But there is no doubt that Bardaje and his companions committed kidnapping
and serious illegal detention of a minor as well as of a "female", an offense
penalized in article 267(4) of the Revised Penal Code with reclusion perpetua to
death.

Republic Act No. 18 specifically made kidnapping of a minor and a woman a

capital offense in order to deter the kidnapping of minors and women, a crime
which was very rampant after liberation.

The victim might have been a girl, who, like many teenagers of today, does not
safeguard her virtue or chastity and easily succumbs to the temptation of the
flesh. (Time Magazine reports that at the Puerta del Sol in Madrid, Spain, there is
a billboard on which is emblazoned Oscar Wildes witticism "Puedo resistir todo
excepto la tentacion.")

Bardaje and his companions grievously and brazenly deprived the victim of her
liberty by forcibly taking her against her will and the will of her mother and
detaining her in a hut in the mountain. (See People vs. Ablaza, L-27352, October
31, 1969,30 SCRA 173; People vs. Tungala, 102 Phil. 1161; People vs. Ching
Suy Siong and Mata, 97 Phil. 989.)

The victim, being a minor, was still under parental authority. Her parents were
entitled to her custody and to keep her in their company. They were obligated to
take care of her and to see to it that her rights were respected.

Even a layman would deduce from the manner in which the victim was snatched
and detained, that the accused committed an outrageous and wrongful act which
should be drastically punished. To acquit them would be a miscarriage of justice.

I vote for the imposition of reclusion perpetua on the accused and the imposition
of an indemnity of P10,000.
 [G.R. No. 159288. October 19, 2004]
JOHNSON LEE, petitioner, vs. PEOPLE OF THE PHILIPPINES and
NEUGENE MARKETING, INC., respondents.
DECISION
CALLEJO, SR., J.:
NEUGENE Marketing, Inc. (NMI) was incorporated on January 27, 1978
with funds provided by the Uy Family. It had an authorized capital stock of P3
million divided into 30,000 shares with a par value of P100 per share. The
original incorporators, with their corresponding number of shares and the
amounts thereof, are as follows:
Johnson Lee 600 P 60,000.00
Lok Chun Suen 1,200 120,000.00
Charles O. Sy 1,800 180,000.00
Eugenio Flores, Jr. 2,100 210,000.00
Arsenio Yang, Jr. 300 30,000.00
T O T A L 6,000 P600,000.00
===== =========
There were two stock dividend declarations, one on June 7, 1980 in the
amount of P60,000.00 and another on May 2, 1981 for P40,000.00. On May 15,
1986 Eugenio Flores, Jr. assigned/divested himself of his shares in favor of
Sonny Moreno, 1,050 shares; Arsenio Yang, Jr., 700 shares and Charles O. Sy,
700 shares.[1]
On June 11, 1987, the NMI sold and delivered to the Victorias Milling
Company, Inc. (VMCI), in Victorias, Negros Occidental, 77,500 pieces of empty
white bags for the price of P565,750.00. NMI issued Charge Invoice No.
0809[2] dated June 11, 1987 to VMCI covering said sale. On June 18, 1987,
VMCI purchased 100,000 pieces of empty white bags from NMI for P730,000.00
for which NMI issued Charge Invoice No. 0810. [3] On June 25, 1987, VMCI again
purchased 28,000 pieces of empty white bags from NMI for the price
of P204,400.00 and the latter issued Charge Invoice No. 0811 [4] dated June 25,
1987. In payment of said purchases from NMI, VMCI drew and issued two Bank
of the Philippine Islands (BPI) Checks: Check No. 068706 dated August 3, 1987
in the amount of P565,750.00[5] and Check No. 068993 dated August 19, 1987 in
the amount of P934,400.00.[6] Both checks were payable to the order of NMI.
On October 13, 1987, stockholders owning two-thirds (2/3) of the
subscribed capital stock of NMI voted to call a stockholders meeting. One of the
items in the agenda was the dissolution of the corporation.
Pursuant thereto, a special stockholders meeting was held on October 24,
1987 in Bacolod City. The following stockholders, who were also directors, were
present and voted to dissolve the corporation:
Name of Stockholders Number of Shares
Arsenio Yang, Jr. 1,050
Charles Sy 2,800
Lok Chun Suen 1,400
Total 5,250
Accordingly, notices were again sent to all stockholders of record, all of
whom properly acknowledged the said notices, that a meeting was to be held on
November 30, 1987 to consider the dissolution of the corporation. Again the
stockholders who attended the October 24, 1987 meeting were present. Upon
motion duly seconded, the dissolution was approved. Per Resolution of the
Board of Directors, the law firm of Reyes, Treyes & Fudolin Law Office was
appointed as trustee to collect all the receivables of the corporation.
At the time of the approval of the dissolution of the corporation on
November 30, 1987, the shares of each stockholder were as follows:
Name of Stockholders Total as of Nov. 30.
Johnson Lee, 600 (subscription);
60 (June 7, 1980 stock dividend);
40 (May 2, 1981 stock dividend) --------- 700 shares
Lok Chun Suen, 1,200 (subscription);
120 (June 7, 1980 stock dividend);
80 (May 2, 1981 stock dividend) ---------- 1,400 shares
Charles O. Sy, 1800 (subscription); 180
(June 7, 1980 stock dividend); 120
(May 2, 1981 stock dividend); 700
(acquisition from Eugenio Flores ---------- 2,800 shares
Arsenio Yang, Jr., 300 (subscription);
30 (June 7, 1980 stock dividend); 20
(May 2, 1981 stock dividend); 700
(acquisition from Eugenio Flores) -------- 1,050 shares
Sonny Moreno, 1,050 (acquisition
From Eugenio Flores) ----------------------- 1,050 shares
Total ---------------------------------- 7,000 shares
Pursuant to Section 11 of the Corporation Code, the Securities and
Exchange Commission approved the dissolution of the corporation on March 1,
1988 subject to compliance of the requirements, such as the sending of notices
to stockholders and publication thereof in a newspaper of general circulation,
among others.
On March 22, 1988, Johnson Lee, Sonny Moreno, Leoncio Tan and
Nicanor Martin filed a petition with the Securities and Investigation Clearing
Department (SICD) of the Commission praying, among other things, for the
annulment or nullification of the Certification of Filing of Resolution of Voluntary
Dissolution of NMI for being contrary to law and its by-laws.
 In the meantime, the trustee wrote the petitioner, Johnson Lee, on March 8, her that it would be difficult to locate the checks as they were stored in
1988 requesting him to turn over to it the P1,500,150.00 he received in payment the bodega, where many other checks were kept.[10] Flores also testified that the
of the empty bags sold by NMI to VCMI. However, he failed to do so.[7] signatures at the dorsal portion of the checks were those of the petitioner, the
President of NMI, with whom she had been working, and that he indorsed and
A verified complaint for three (3) counts of estafa was filed against the deposited the same on September 4, 1987 with the Solidbank, instead of the BPI
petitioner and Sonny Moreno with the City Prosecutors Office. Appended to the Plaza Cervantes branch in Manila, the official depository bank of NMI. According
complaint were photocopies of Charge Invoice Nos. 0809, 0810, and 0811, to Flores, she was able to secure microfilm copies of the checks from Solidbank,
issued by NMI to VMCI. and was sure that the copies of the checks and invoices were faithful
During the requisite preliminary investigation, the petitioner and Moreno reproductions of the original copies thereof.[11]
submitted their counter-affidavits. The counter-affidavit of the petitioner consisted Testifying for the prosecution in obedience to a subpoena issued by the
of five pages.[8]After the investigation, two (2) Amended Informations were filed court, Merlita Bayaban, Manager for Corporate Affairs of VMCI, declared that the
against the petitioner and Moreno, with the Regional Trial Court (RTC) of Negros records section of VMCI, which had custody of all checks and other corporate
Occidental. Except as to the particulars of the checks, the accusatory portions of records, was near her office. She testified that the checks, including their other
the two Informations are identical, thus: records, were lost during the flood in 1985. [12] She also testified on the
Certification[13] issued by Carolina Diaz, the Comptroller of VMCI, confirming the
That sometime in the month of August 1987, in the City of Bacolod, Philippines, loss of the two checks. She, however, admitted that she did not see the original
and within the jurisdiction of this Honorable Court, the herein accused, Johnson copies of the checks[14] and that she was not a signatory thereto.[15]
Lee, being then the President and Sonny Moreno, the General Manager of
Neugene Marketing, Inc., with the duty and responsibility to collect, turn over and Thereafter, the prosecution formally offered in evidence the counter-affidavit
deliver their collections to the herein offended party, Neugene Marketing, Inc., a of the petitioner during the preliminary investigation, as well as the charge
corporation organized and existing by and under the laws of the Philippines, invoices and checks, viz.
represented herein by its Trustees, Roger Reyes, Ernesto Treyes, and Eutiquio
G NMI Charge Invoice No. To prove that Victorias Milling Co., Inc. (VMC)
Fudolin, the said accused conspiring, confederating, and acting in concert far 0809 dated June 11, ordered 77,500 pieces of empty bags from NMI
from complying with the aforementioned obligation having collected the amount
1987 on June 11, 1987 and that these bags were
of P565,750.00 covered by BPI Check No. 068766 (sic) dated August 3, 1987 as
delivered to VMC.
payment of Victorias Milling Company, a customer of the herein offended party,
H NMI Charge Invoice No. To prove that VMC ordered 100,000 pieces of
with intent of gain, and with unfaithfulness or abuse of confidence failed and
0810 dated June 18, empty bags from NMI on June 18, 1987 and that
refused to deliver the aforementioned amount to the herein offended party, up to
1987 these bags were delivered to VMC.
the present, in spite of proper demands, but instead, did, then and there willfully,
unlawfully and feloniously convert[ed] and/or misappropriated the same to their I NMI Charge Invoice No. To prove that VMC ordered 28,000 pieces of
personal use and benefit to the damage and prejudice of the herein offended 0811 dated June 25, empty bags from NMI on June 25, 1987 and that
party in the aforementioned amount of FIVE HUNDRED SIXTY-FIVE 1987 these bags were delivered to VMC.
THOUSAND SEVEN HUNDRED FIFTY (P565,750.00) PESOS, Philippine J Demand letter dated To prove that in 1988, NMI made a demand upon
Currency. March 8, 1988 the accused for the delivery of the amount of of
signed by Atty. P1,500,150.00 representing VMCs payment for
Roger Z. Reyes the delivery of the empty bags mentioned in
Act contrary to law.[9] Exhibits G, H and I.
J-1 Signature appearing To prove the genuineness, authenticity and due
The cases were docketed as Criminal Cases Nos. 10010 and 10011. above the execution of Exhibit J.
typewritten name
During the trial, the original copies of Charge Invoice Nos. 0809, 0810 and Roger Z. Reyes duly
0811, and of BPI Check Nos. 068766 and 068993 were not in the custody of the identified by the
prosecution. prosecution witness,
To prove the loss, destruction or non-availability of the original copies of the Mrs. Ban Hua Flores
charge invoices and checks, as well as the authenticity and due execution as the signature of
thereof, the prosecution presented Ban Hua Flores, who testified that she saw Atty. Roger Z. Reyes
the two checks in the office of the petitioner at the Singson Building, Plaza K Bank of the Philippine To prove that VMC made a check payable to
Moraga, Sta. Cruz, Manila. Sometime in 1987, she went to the office of the VMCI Islands (BPI) NMI, in the amount of P565,750, as payment to
and inquired if it still had copies of the two checks and the clerk thereat informed Legaspi Village NMI for the delivery of the empty bags mentioned
 Extension Check No. in Exhibits G, H and I. O-2 Paragraph 6 of Exhibit O found Same purpose as in Exhibit O.
068706 dated On page 2 thereof.17
August3, 1987 in the
amount of The accused objected to the admission of the photocopies of the checks
P565,750.00 and charge invoices on the ground that the best evidence were the original
K-1 Signature found on the To prove that the accused Lee received and was copies thereof. On April 12, 2002, the trial court issued an Order admitting the
dorsal side of Exhibit in possession of Exhibit K and that he indorsed counter-affidavit of the petitioner, as well as the photocopies of the checks and
K which Mrs. Flores and deposited the same. charge invoices, on the ground that the prosecution had adduced preponderant
identified as the evidence that the original copies of the said charges and checks were lost,
signature of Accused destroyed or non-available.18 The accused filed a motion for reconsideration of
Johnson Lee. the order, claiming that the prosecution failed to prove the authenticity and due
execution of the offered documents, a prerequisite to the admission thereof as
secondary evidence. They also filed a Motion for Leave to File a Demurrer to
Evidence. The trial court denied both motions.
K-2 Rubberstamp showing To prove that Exhibit K was deposited by
the name of accused Lee in the Solidbank which is not the In a petition for certiorari under Rule 65 of the Rules of Court filed with the
Solidbank appearing official depository bank of NMI, the official NMI Court of Appeals, the petitioner alleged that -
on the dorsal side of depository bank being the BPI Plaza Cervantes
Exhibit K Branch. Respondent judge committed grave abuse of discretion equivalent to lack or
L BPI Legaspi Village To prove that VMC made a check payable to NMI excess of jurisdiction, in admitting in evidence the Peoples documentary
Extension Check No. in the amount of P934,400, as payment to NMI evidence, consisting of mere unauthenticated photocopies, in flagrant violation of
068993 dated Aug. for the delivery of the empty bags mentioned in the Best Evidence Rule (Sec. 3, 4, 5 and 6, Rule 130), despite the repeated
19, 1987 in the Exhibits G, H and I. vehement objections of the petitioner, thereby wantonly refusing to exclude such
Amount of clearly inadmissible evidence, which actuation as embodied in his two (2)
P934,400.00 assailed Orders, is capricious, whimsical and patently erroneous, as to amount to
L-1 Signature found on the To prove that the accused Lee received and was an evasion of positive duty or to a virtual refusal to perform the duty enjoined or
dorsal side of Exhibit in possession of Exhibit L and that he indorsed to act at all in contemplation of law, and the remedy of ordinary appeal would not
L which Mrs. Flores and deposited the same. afford petitioner adequate and expeditious relief, for while available eventually,
identified as the such remedy is cumbersome for it requires petitioner to undergo a useless and
signature of accused time-consuming trial, and thus becomes an oppressive exercise of judicial
Lee authority; hence, the imperative necessity for the issuance of a temporary
L-2 Rubberstamp showing To prove that Exhibit L was deposited by restraining order or preliminary injunction requiring respondent judge to refrain
the name of Solid accused Lee in the Solidbank which is not the from further proceeding with Crim. Cases Nos. 10010 and 10011 until the
bank appearing on official depository bank of NMI, the Official NMI Petition shall have been disposed of, otherwise, failure of justice is sure to
dorsal side of Exh. L depository bank being the BPI Plaza Cervantes ensue.19
Branch.16
On March 14, 2003, the Court of Appeals rendered judgment dismissing the
The prosecution also offered in evidence the counter-affidavit of the
petitioner during the preliminary investigation, as follows: petition for lack of merit.20
The Court of Appeals ruled that the charge invoices and the checks were
O Counter-Affidavit dated September To prove that the proceeds of Exhibit K
not the best evidence to prove receipt by the accused of the amounts allegedly
9, 1988 signed and submitted and L in the total amount of P1,500.150
misappropriated; hence, the best evidence rule does not apply. It also held that
by Johnson Lee in B.C.-I.S. are in the possession and control of the
even if the contents of the checks were the subject of inquiry, based on the
No. 88-347, consisting of 5 accused and that both refused to
proofs adduced by the prosecution, such checks are admissible in evidence. The
pages deliver the same to NMI despite
Court of Appeals declared that, in any event, the prosecution proved the loss or
demand
destruction or non-availability of the checks and charge invoices. The petitioners
O-1 Signature found on page 5 of To prove the genuineness, due motion for reconsideration of the decision suffered the same fate.
Exhibit O above the execution and authenticity of Exhibit O,
typewritten Name Johnson which both of the accused also The petitioner then sought relief from this Court, in a petition for review on
Lee admitted. certiorari, and raises the following issues:
1. CAN (sic) PRIVATE DOCUMENT OFFERED AS AUTHENTIC BE RECEIVED
IN EVIDENCE WITHOUT PROOF OF ITS DUE EXECUTION AND
AUTHENTICITY?
2. CAN SECONDARY EVIDENCE BE ADMITTED WITHOUT PROOF OF ITS
LOSS OR UNAVAILABILITY AND EXECUTION OF THE ORIGINAL?
3. DID THE COURT OF APPEALS ERR WHEN IT RULED THAT THE FAILURE
TO PRODUCE THE ORIGINAL OF A DOCUMENTARY EVIDENCE,
CONSISTING OF PRIVATE INSTRUMENTS DOES NOT VIOLATE THE BEST
EVIDENCE RULE, INASMUCH AS RECEIPT BY THE PETITIONER OF THE
AMOUNT ALLEGEDLY MISAPPROPRIATED MAY BE PROVED BY EVIDENCE
OTHER THAN THE ORIGINAL OF THE SAID PRIVATE DOCUMENTS?
4. IS THE FINDING OF THE COURT OF APPEALS THAT THE FACT OF LOSS
OR DESTRUCTION OF THE CHECKS AND THE CHARGE INVOICES HAS
BEEN ESTABLISHED BY OTHER EVIDENCE, DEVOID OF SUPPORT BY THE
EVIDENCE ON RECORD AND IS, THEREFORE, A BARE CONCLUSION OR A
FINDING BASED ON SURMISE AND CONJECTURES?
5. IS ANOTHER FINDING, IN THE FORM OF ASSUMPTION, OF THE COURT
OF APPEALS THAT SINCE THE WITNESSES FOR THE PROSECUTION ARE
OFFICERS WITH AUTHORITY TO KEEP THE QUESTIONED DOCUMENTS,
THEY NECESSARILY TOOK AND CONDUCTED A THOROUGH SEARCH
FOR THE MISSING DOCUMENTS, A MERE CONJECTURE OR SURMISE OR
A FINDING GROUNDED ENTIRELY ON SPECULATION?
6. DID THE COURT OF APPEALS VIOLATE THE DICTUM OF THE COLD
NEUTRALITY OF AN IMPARTIAL JUDGE WHEN IT DENIED PETITIONERS
MOTION FOR INHIBITION GROUNDED ON ITS DISPLAY OF UNDUE
INTERESTS AND WHEN A MEMBER THEREOF HAS SEEN IT FIT AND
APPROPRIATE TO RECUSE HERSELF?21
The petitioner avers that the prosecution failed to prove the loss,
destruction or non-availability of the original copies of the checks and charge
invoices; that diligent efforts were undertaken to locate the original copies of the
checks and invoices; and that said efforts were futile. He asserts that the witness
competent to prove the loss or destruction of the original of the checks would be
the records custodian of VMCI. Bayaban was not a competent witness thereon,
considering that she merely testified that the clerk of the VMCI failed to locate the
original copies of the checks because the latter was lazy to search for the same.
The petitioner posits that the prosecution failed to prove the due execution and
authenticity of the charge invoices and the two checks through the testimonies of
Flores and Bayaban. He contends that Bayaban even admitted that she was not
privy to and had no knowledge of the execution of the said checks and of the
signatories of the checks. The petitioner further avers that, although the appellate
court held that the photocopies of the checks were admissible in evidence based
on other proofs adduced by the prosecution, it failed to specify the other proofs
adverted to by it.
In its Comment on the petition, the Office of the Solicitor General asserts
that through the testimony of Bayaban, the due execution and authenticity of the
checks were proved by the prosecution as well as the admissions of the
petitioner in his counter-affidavit during the preliminary investigation. It further
averred that through the testimonies of Bayaban and Flores, it proved, with
reasonable certainty, the loss or destruction of the original copies of the checks
and the charge invoices.
The issues for resolution are as follows: (a) whether or not the petition at
bar is the proper remedy of the petitioner; and (b) whether or not the trial court
committed a grave abuse of its discretion amounting to excess or lack of
jurisdiction in admitting in evidence the photocopies of the checks and charge
invoices in lieu of the original copies thereof.
The Ruling of the Court
In People v. Court of Appeals,22 we held that for a petition for certiorari or
prohibition to be granted, it must set out and demonstrate, plainly and distinctly,
all the facts essential to establish a right to a writ. 23 The petitioner must allege in
his petition and establish facts to show that any other existing remedy is not
speedy or adequate24 and that (a) the writ is directed against a tribunal, board or
officer exercising judicial or quasi-judicial functions; (b) such tribunal, board or
officer has acted without or in excess of jurisdiction, or with grave abuse of
discretion amounting to excess or lack of jurisdiction; and, (c) there is no appeal
or any plain, speedy and adequate remedy in the ordinary course of law. 25
The trial court acts without jurisdiction if it does not have the legal power to
determine the case; there is excess of jurisdiction where the respondent, being
clothed with the power to determine the case, oversteps its authority as
determined by law. There is grave abuse of discretion where the public
respondent acts in a capricious, whimsical, arbitrary or despotic manner in the
exercise of its judgment as to be said to be equivalent to lack of
jurisdiction.26 Mere abuse of discretion is not enough. A remedy is plain, speedy
and adequate if it will promptly relieve the petitioner from the injurious effects of
that judgment and the acts of the tribunal or inferior court. 27 A petition for
certiorari cannot co-exist with an appeal or any other adequate remedy. The
existence and the availability of the right to appeal are antithetical to the
availment of the special civil action for certiorari. These two remedies are
mutually exclusive.28
In a petition for certiorari, the jurisdiction of the court is narrow in scope. It is
limited to resolving only errors of jurisdiction. It is not to stray at will and resolve
questions or issues beyond its competence such as errors of judgment. Errors of
judgment of the trial court are to be resolved by the appellate court in the appeal
by and of error or via a petition for review on certiorari under Rule 45 of the Rules
of Court, as amended. Certiorari will issue only to correct errors of jurisdiction. It
is not a remedy to correct errors of judgment. 29 An error of judgment is one in
which the court may commit in the exercise of its jurisdiction, and which error is
reversible only by an appeal. Error of jurisdiction is one where the act complained
of was issued by the court without or in excess of jurisdiction and which error is
correctible only by the extraordinary writ of certiorari. 30 Certiorari will not be
issued to cure errors made by the trial court in its appreciation of the evidence of
the parties, its conclusions anchored on the said findings and its conclusions of
law thereon.31 As long as the court acts within its jurisdiction, any alleged errors
committed in the exercise of its discretion will amount to nothing more than mere
errors of judgment, correctible by an appeal if the aggrieved party raised factual
and legal issues; or a petition for review under Rule 45 of the Rules of Court if
only questions of law are involved. 32
In this case, there is no dispute that the RTC had jurisdiction over the cases
filed by the public respondent against the petitioner for estafa. The Order
admitting in evidence the photocopies of the charge invoices and checks was
issued by the RTC in the exercise of its jurisdiction. Even if erroneous, the same
is a mere error of judgment and not of jurisdiction. Additionally, the admission of
secondary evidence in lieu of the original copies predicated on proof of the
offeror of the conditions sine qua non to the admission of the said evidence is a
factual issue addressed to the sound discretion of the trial court. 33 Unless grave
abuse of discretion amounting to excess or lack of jurisdiction is shown to have
been committed by the trial court, the resolution of the trial court admitting
secondary evidence must be sustained. The remedy of the petitioner, after the
admission of the photocopies of the charge invoices and the checks, was to
adduce his evidence, and if after trial, he is convicted, to appeal the decision to
the appropriate appellate court. Moreover, under Rule 45 of the Rules of Court,
as amended, only questions of law may be properly raised.
In the final analysis, the threshold issue in this case is whether or not the
prosecution adduced evidence, testimonial and documentary, to prove the
predication to the admission of the photocopies of the charge invoices 34 and of
the checks.35 The petitioner posits that the prosecution failed to discharge its
burden, in contrast to the claim of the prosecution that it succeeded in doing so.
In resolving the petition at bar, the court will have to delve into and calibrate the
testimonial and documentary evidence adduced by the parties in the trial court,
which the court is proscribed to do under Rule 45 of the Rules of Court. This was
the ruling of the Court in Johnson Lee v. People:36
In other words, certiorari will issue only to correct errors of jurisdiction and not to
correct errors of procedure or mistakes in the courts findings and conclusions. An
interlocutory order may be assailed by certiorari or prohibition only when it is
shown that the court acted without or in excess of jurisdiction or with grave abuse
of discretion. However, this Court generally frowns upon this remedial measure
as regards interlocutory orders. To tolerate the practice of allowing interlocutory
orders to be the subject of review by certiorari will not only delay the
administration of justice but will also unduly burden the courts.
We find that the allegations of the petitioners are not sufficient grounds to qualify
as abuse of discretion warranting the issuance of a writ of certiorari. The
petitioners present factual contentions to absolve them from the criminal charge
of estafa. The criminal cases concern corporate funds petitioners allegedly
received as payment for plastic bought by Victorias Milling Corporation from NMI.
They refused to turn over the money to the trustee after NMIs dissolution on the
ground that they were keeping the money for the protection of the corporation
itself. Thus, the elements of misappropriation and damage are absent. They
argue that there is no proof that, as officers of the corporation, they converted the
said amount for their own personal benefit. They likewise claim that they already
turned the money over to the majority stockholder of the defunct corporation.
Clearly, the said allegations are defenses that must be presented as evidence in
the hearing of the criminal cases. They are inappropriate for consideration in a
petition for certiorari before the appellate court inasmuch as they do not affect the
jurisdiction of the trial court hearing the said criminal cases but instead are
defenses that might absolve them from criminal liability. A petition for certiorari
must be based on jurisdictional grounds because, as long as the respondent
court acted with jurisdiction, any error committed by it in the exercise thereof will
amount to nothing more than an error of judgment which can be reviewed or
corrected on appeal.
Moreover, the petition for certiorari before the Court of Appeals was premature
for the reason that there were other plain and adequate remedies at law available
to the petitioners. Under Section 3(a) of Rule 117 of the Revised Rules of
Criminal Procedure, the accused can move to quash the information on the
ground that the facts do not constitute an offense. There is no showing that the
petitioners, as the accused in the criminal cases, ever filed motions to quash the
subject informations or that the same were denied. It cannot then be said that the
lower court acted without or in excess of jurisdiction or with grave abuse of
discretion to justify recourse to the extraordinary remedy of certiorari or
prohibition.
But it must be stressed that, even if petitioners did file motions to quash, the
denial thereof would not have automatically given rise to a cause of action under
Rule 65 of the Rules of Court. The general rule is that, where a motion to quash
is denied, the remedy is not certiorari but to go to trial without prejudice to
reiterating the special defenses involved in said motion, and if, after trial on the
merits an adverse decision is rendered, to appeal therefrom in the manner
authorized by law. And, even in the exceptional case where such denial may be
the subject of a special civil action for certiorari, a motion for reconsideration
must first be filed to give the trial court an opportunity to correct its error. Finally,
even if a motion for reconsideration was filed and denied, the remedy under Rule
65 would still be unavailable absent any showing of the grounds provided for in
Section 1 thereof. The petition before the Court of Appeals, subject of this
appeal, did not allege any of such grounds.
Furthermore, a petition for review under Rule 45 of the 1997 Revised Rules of
Civil Procedure before this Court only allows questions of law. Inasmuch as
petitioners defenses alleging circumstances that negate misappropriation
definitely require appreciation of facts, i.e., testimonial and documentary
evidence, this Court cannot assess the merit of the said claims. 37
Moreover, the factual findings of the Court of Appeals are conclusive on the
Court unless the petitioner is able to establish that the findings of facts of the
appellate court are not supported by or are contrary to the evidence; or if the
appellate court ignored, misconstrued or misinterpreted vital facts and
circumstances, which, if considered, could change or even reverse the outcome
of the case. In this, the petitioner failed.
Rule 130, Section 3 of the Revised Rules of Court reads:
Original document must be produced; exceptions. When the subject of inquiry is
the contents of a document, no evidence shall be admissible other than the
original document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced in court
without bad faith on the part of the offeror;
(b) When the original is in the custody or under the control of the party against
whom the evidence is offered, and the latter fails to produce it after reasonable
notice;
(c) When the original consists of numerous accounts or other documents which
cannot be examined in court without great loss of time and the fact sought to be
established from them is only the general result of the whole;
(d) When the original is a public record in the custody of a public officer or is
recorded in a public office.
Before the onset of liberal rules of discovery, and modern technique of
electronic copying, the best evidence rule was designed to guard against
incomplete or fraudulent proof and the introduction of altered copies and the
withholding of the originals. But the modern justification for the rule has
expanded from the prevention of fraud to a recognition that writings occupy a
central position in the law. The importance of the precise terms of writings in the
world of legal relations, the fallibility of the human memory as reliable evidence of
the terms, and the hazards of inaccurate or incomplete duplicate are the
concerns addressed by the best evidence rule.38
The rule does not apply to proof of facts collateral to the issues such as the
nature, appearance or condition of physical objects or to evidence relating to a
matter which does not come from the foundation of the cause of action or
defense; or when a party uses a document to prove the existence of an
independent fact, as to which the writing is merely collated or incidental.39
The offeror of secondary evidence is burdened to prove the predicates
thereof: (a) the loss or destruction of the original without bad faith on the part of
the proponent/offeror which can be shown by circumstantial evidence of routine
practices of destruction of documents;40 (b) the proponent must prove by a fair
preponderance of evidence as to raise a reasonable inference of the loss or
destruction of the original copy; and (c) it must be shown that a diligent and bona
fide but unsuccessful search has been made for the document in the proper
place or places.41 It has been held that where the missing document is the
foundation of the action, more strictness in proof is required than where the
document is only collaterally involved.42
If the document is one in which other persons are also interested, and
which has been placed in the hands of a custodian for safekeeping, the
custodian must be required to make a search and the fruitlessness of such
search must be shown, before secondary evidence can be admitted. 43 The
certificate of the custody of the document is incompetent to prove the loss or
destruction thereof. Such fact must be proved by some person who has
knowledge of such loss.44
The proponent is also burdened to prove the due execution or existence of
the original as provided in Rule 130, Section 5 of the Revised Rules of Court:
When the original document is unavailable. When the original document has
been lost or destroyed, or cannot be produced in court, the offeror, upon proof of
its execution or existence and the cause of its unavailability without bad faith on
his part, may prove its contents by a copy, or by a recital of its contents in some
authentic document, or by the testimony of witnesses in the order stated.
Rule 132, Section 20 of the Revised Rules of Court provides the procedure
on how the authenticity and due execution of a private document which is offered
as authentic may be proved:
Proof of private document. Before any private document offered as authentic is
received in evidence, its due execution and authenticity must be proved either:
(a) By anyone who saw the document executed or written; or
(b) By evidence of the genuineness of the signature or handwriting of
the maker.
Any other private document need only be identified as that which it is claimed to
be.
The testimony of an eyewitness as to the execution of a private document
must be positive. He must state that the document was actually executed by the
person whose name is subscribed thereto.45 The admission of that party against
whom the document is offered, of the authenticity and due execution thereof, is
admissible in evidence to prove the existence, authenticity and due execution of
such document.
 In this case, there is no dispute that the original copies of the checks were
returned to VMCI after the same were negotiated and honored by the drawee
bank. The originals of the charge invoices were kept by VMCI. There is also no
dispute that the prosecution offered the photocopies of the invoices in evidence
to prove the contents thereof, namely that: (a) VMCI purchased 203,500 empty
bags from NMI for the total price of P1,500,150.00; (b) VMCI received the said
goods in good order and condition; and (c) NMI charged VMCI for the purchase
price of said goods. The prosecution offered the checks to prove the contents
thereof as well as the following: (a) VMCI drew and delivered the checks to the
NMI; (b) the said checks were endorsed by the petitioner; and (c) the said checks
were deposited by the petitioner with the Solidbank which was not the official
depository of NMI. Thus, the prosecution was burdened to prove the loss,
destruction or its inability to produce in court without bad faith on its part of the
original copies of the said invoices and checks without bad faith on its part.
We agree with the petitioner that the Certification signed by Carolina Diaz
was inadmissible in evidence against him because of the failure of the
prosecution to present her as witness and to testify on said certification.
However, the records show that, in obedience to the subpoena duces
tecum and ad testificandum issued by the trial court directing the VMCI to
produce the originals of the checks and the charge invoices, Bayaban, the
Manager for Corporate Affairs of VMCI, testified that all its records, including the
charge invoices and checks, were destroyed seven years ago in a flash flood
which occurred on November 28, 1995, and that such loss/destruction was
known to all the employees of VMCI, including herself:
FISCAL ESQUILLA:
Q Please inform this Honorable Court how were you able to appear
this afternoon in connection with this case?
A The Legal Department, through the instruction of our Chief
Operating Officer, inquired from our Accounting through our
comptroller, Carolina S. Diaz to produce the original copies of
the two (2) checks which was mentioned in the subpoena issued
by Prosecutor Esquilla. And then, through my direct Boss, the
Chief Accountant, Mrs. Melanie Roa, instructed me to look into
the two (2) checks. And since the record is under my
Department, I immediately asked my subordinate to look for it.
And, in fact, she was also under my supervision when we looked
for the document. And I have already knowledge during the
November 28, 1995 due to flash flood, we lost our records. And
in fact, we have declaration to the Bureau of Internal Revenue
(BIR). And we also exhausted some means to look for the
documents, but we really cannot produce the original copies of
the checks, even the Xerox, no more copies of the checks as
requested.
Q Madam Witness, when you said that you instructed your
subordinate to look for the record, specifically, the records being
asked in the subpoena, the original copies of the checks, these
two (2) checks, will you please inform this Honorable Court
where these records in 1995 including these checks, of course,
have been kept by your office?
A It is kept at the Records Section Office just near my table. It is just
over there. It is just over there. The distance is very near. We
have the vault power cards and all old records were kept are
downstairs and the new ones are kept upstairs. So, we dont
anticipate the flood and because that was the first time that we
were hit by that flash flood.
Q So, you want to impress this Honorable Court that those records
which were kept downstairs your office were carried or destroyed
by this flash flood which occurred in 1995 is that correct or is that
what you mean?
A Yes, Your Honor.
Q And can you say that if these two (2) checks, subject of this case
now, were there downstairs and was destroyed by the 1995 flash
flood, can you say that before this Honorable Court?
A Yes, Your Honor.
Q Aside from these checks downstairs which were destroyed by this
flash flood, what were the other records that were kept there that
were lost also?
A All our Bank Vouchers, some of our General Ledgers. Actually, I
cannot memorize it, but in our declaration to the Bureau of
Internal Revenue (BIR) we have listings of those documents
which were damaged by flash flood.
Q Alright, Madam Witness. So, when this subpoena/subpoena (sic)
duces tecum was received by Victorias Milling Company,
addressed to the Chief Operating Officer, do I get from you that
this was referred to the Legal Affairs of VICMICO?
A Yes, Your Honor.
COURT:
Slowly, the stenographer may not be able to catch up with you.
FISCAL ESQUILLA:
I see. Sorry, Your Honor. And from the Legal Affairs, where did it
proceed, this subpoena or this was referred to by the Legal
Affairs to whom?
WITNESS:
A To Mrs. Carolina Diaz, the Comptroller.
FISCAL ESQUILLA:
Q You mentioned that she is your immediate Boss?
A I have also, next to her, Mrs. Melanie Roa, and I am next to her.
Q And you are holding office there at VICMICO together with the
Comptroller, Carolina Diaz?
A We are in the same building.
Q And does she has a cubicle of her own?
A Yes, Your Honor.
Q And your table up to her cubicle, how far is your table from her
cubicle?
A They are very near. I can see from my place her office and I can see
anytime she went in and out of the room. Maybe from here up to
that next room.
COURT:
About 25 to 30 meters, more or less.
FISCAL ESQUILLA:
Q And, Madam Witness, may I know from you that who requested you
to testify because this Certification bears the signature of Mrs.
Diaz?
A Ah, Mrs. Diaz, in fact, ah there is a Memo from the Legal Affairs that
we will submit the Certification to the Honorable Court and the
Memo was addressed to Mrs. Diaz. And there was a note from
Mrs. Diaz to my direct Boss, the Chief Accountant, and then I
was tasked by my immediate Boss to attend to this.
Q How were you able to secure a Certification?
A A Certification was issued also upon our recommendation to the
Chief Accountant that we cannot produce anymore the original
copies of the said document.
Q Who gave you that Certification so that you can bring that today in
Court?
A Marie Melanie G. Roa.
Q Do you have with you now the Certification?
A Yes, Your Honor.
Q And you are showing the original copy of the Certification?
A Yes, Your Honor.
Q I show to you the Certification dated December 6, 2001 issued by
Carolina Diaz, Comptroller. Do you know whose signature is
this?
A That is the signature of Mrs. Carolina S. Diaz.
Q How do you know that this is her signature?
A Im very much familiar with her signature because in our day to day
undertakings in the office, I can see this in the checks she
signed, and in the Office Memorandum. And, in fact, I also
prepare some of the communications for her signature.
Q For the record, Madam Witness, will you please read the first
paragraph of that Certification issued by Carolina Diaz?
A Victorias Milling Co., Inc. Certification. This is to certify that Victorias
Milling Co., Inc. no longer have the original copies of the BPI,
Legaspi Village, Extension Office, Legaspi St., Makati, Metro
Manila, Check No. 068766 dated August 3, 1987 and Check No.
068993 dated August 19, 1987 as the same were destroyed by
flash flood that hit the province of Negros Occidental particularly
the City of Victorias on November 28, 1995.
FISCAL ESQUILLA:
Your Honor, may I request that this Certification be marked as our
Exhibit X temporarily.
COURT:
Mark it.
FISCAL ESQUILLA:
And then the signature as identified by this witness, of her immediate
Boss, be encircled and marked as Exhibit X-1.
COURT:
Mark it.
COURT INTERPRETER:
Your last Exhibit is Exhibit Y.
FISCAL ESQUILLA:
I will change my Exhibit from Exhibit X and X-1 to Z and Z-1. No
further, Your Honor.
COURT:
Do you want to cross?
ATTY. MAGDAMIT:
Yes, Your Honor. A I remember it was presented to me by Mrs. Diaz.
COURT: ATTY. MAGDAMIT
Alright, cross for the accused Moreno. We will give the Manila lawyer Q Mrs. Diaz. So, let me just clear this up. The subpoena did not
the first shot. immediately go to the Legal, it was presented to you by Mrs.
Diaz?
CROS
S- A No, it was presented by the Legal to our Comptroller. Then . . .
EXAM
INATI ...
ON COURT:
OF
THE Q And then to?
WITN
ESS A And then to me.
MERL
Q There is an initial, MGR. Do you know who is that?
ITA T.
BAYA A That is Mrs. Melanie G. Roa, our Chief Accountant.
BAN
COND Q And from then, when it reached you, you were the ones who sorted
UCTE through the files, were you the one?
D BY
ATTY. A Ah, my subordinate.
SIME Q Ah, you were not the one?
ON M.
MAG A No, Your Honor.
DAMI
T. Q Now, but you were certain I withdraw that question. When you
received the subpoena with the attached document, were you
ATTY. MAGDAMIT already aware that the records, the original, were destroyed or
you were not yet aware?
Q Madam Witness, when you received the subpoena, it contained a
photocopy of the checks that were being requested, is that A Very much aware that the records were destroyed by the flash flood
correct? because it was not only in that case that we were tasked to look
for the documents. There were also Examiners from the Bureau
(At this juncture, there is no answer from the witness) of Internal Revenue who asked for the documents prior to 1995
and thats our reason, we cannot produce the documents.
ATTY. MAGDAMIT: (Follow-up question)
Q Now, wait. Were you the only one who was aware that this file was
Q Did it already contain a copy of the photocopy?
destroyed or was it a matter that was known in your company?
A Ah. Attached to the subpoena.
A It was known to everybody.
Q Have you seen this photocopy when you received the subpoena?
You did not see? Q It was known?
A Yeah.
A Ah, actually, the subpoena was directed to the Legal.
Q You did not see. You did not see the photocopy? Q So, can you conclude that just upon receiving the subpoena and
looking at the photocopy of the checks, you would immediately
May I know the point of Compaero, Your Honor. know that this was among the files that was destroyed by the
flood?
WITNESS: (Answers before Atty. Magdamit)
 A Yes, because of the date, 1995.
Q So, despite that knowledge, it still went through the process and you
still looked for it, is that correct?
A Yes, Your Honor.
Q So, despite of your knowledge that it was destroyed, you still looked
for it?
A Yeah, we still looked for it because there might be some files to
prove that it was really our check issuance. So even our files,
even our Bank Recon, we cannot produce it.46
Contrary to the claim of the petitioner, the prosecution adduced
preponderant evidence to prove the existence, the due execution and the
authenticity of the said checks and charge invoices consisting of the admission of
no less than the petitioner in his counter-affidavit. The petitioner admitted therein
that he received the total amount of P1,500,150.00 from VMCI in full payment of
the delivery and sale of the empty bags by NMI to VMCI and that the said
amount was in the custody of the said corporation, thus:
6. That the collection by the Corporation of the amount
of P1,500,150.00 is a valid act of the corporation; that it is the full
and complete and just payment for the three deliveries of plastic
materials by the Neugene Marketing, Inc to Victorias Milling
Company on June 11, 1987, June 18, 1987 and June 25, 1987
when I was and I am still the President and Mr. Sonny Moreno,
General Manager of the Neugene Marketing, Inc. and that the said
Victorias Milling Company paid in full and payments were made to
the Corporation and it is only a legitimate act of the Neugene
Marketing, Inc. in the regular course of business to receive
payment for the obligations of its customers to the Corporation;
7. That with respect to the demand letter addressed to me to turn over
aforesaid P1,500,150.00, the said amount is money of the
Neugene Marketing, Inc. and the corporation is the legitimate
possessor thereof and that Reyes, Treyes, and Fudolin Law Firm
has no right or authority to make the demand letter; and that it is
the corporation that holds the money and that personally, neither I
nor Sonny Moreno can just take the money to give to Reyes,
Treyes and Fudolin Law Firm which cannot be trusted and which is
an unauthorized entity to receive, hold and possess said funds or
to file this case;
8. That the amount of P1,500,150.00 the corporate funds of the
Neugene Marketing, Inc. unless authorized by the members of the
Board of Directors, neither I nor Sonny Moreno can dispose of the
said sum of money and it is the corporation that is holding the said
amount and holding it to answer for corporation expenses on its
business operations and to answer for obligations to its creditors
including the claims of Sonny Moreno and myself for unpaid
compensation, salaries, fringe benefits, allowances and shares in
the profits of the Corporation; and that therefore, it is beyond our
authority or power to refuse the turn over or to turn over the
aforesaid amount; and that if there is evidence of the malicious
and criminal intent to appropriate the same for personal benefit
that is more applicable to Reyes, Treyes and Fudolin who
apparently without any legal authority and illegally posing as a
trustee when as a matter of fact, they have never been appointed
or designated a[s] trustee by the Neugene Marketing, Inc.; and
therefore, complainants should be the one held criminally
responsible for the illegal dissolution of the Neugene Marketing,
Inc., and for which they will be charged with the corresponding
action for falsification and perjury for having been able to secure a
Certification of Dissolution from the Securities and Exchange
Commission by means of false pretenses and representations;47
It bears stressing that the counter-affidavit of the petitioner was adduced in
evidence by the prosecution precisely to prove the existence, authenticity and
due execution of the original of the said charge invoices and checks and the trial
court admitted the same for the said purpose.
By his counter-affidavit, the petitioner, in effect, admitted the allegations of
the affidavit-complaint of the trustee of NMI:
a. Sometime on June 11, 1987, June 18, 1987 and June 25,
1987, respectively, NEUGENE MARKETING, INC. made three
(3) deliveries of plastic materials to Victorias Milling Company,
Victorias, Negros Occidental totalling P1,500,150.00 covered by
Charge invoices
b. Aforesaid charge invoices were subsequently paid by Victorias
Milling Company in full and payments delivered to Johnson Lee
and/or Sonny Moreno, as President and General Manager of
Neugene Marketing, Inc.
c. As Trustee of Neugene Marketing, Inc., the Reyes, Treyes &
Fudolin Law Firm sent a demand letter addressed to Johnson
Lee to turn over aforesaid P1,500,150.00.
d. As of the date of this Affidavit-Complaint, Johnson Lee and/or
Sonny Moreno have failed to deliver aforesaid sum to the herein
trustee contrary to law.
4. Johnson Lee and/or Sonny Moreno have no authority whatsoever to withhold
aforesaid sum of P1,500,150.00 and their refusal to turn over aforesaid amount is
evidence of a malicious and criminal intent to appropriate the same for their own
personal benefit.48
 With the admissions of the petitioner in his counter-affidavit, the prosecution
even no longer needed to adduce evidence aliunde to prove the existence, due
execution and the authenticity of the charge invoices and the checks.
All told then, the prosecution mustered the requisite quantum of evidence to
prove the predicates to the admission of the photocopies of the charge invoices
and checks.
IN LIGHT OF ALL THE FOREGOING, the petition is DENIED. The assailed
decision of the Court of Appeals is AFFIRMED. No costs.
SO ORDERED.
 [G.R. No. 153911. December 10, 2004]
MELANIO MALLARI y LIBERATO, petitioner, vs. PEOPLE OF THE
PHILIPPINES, respondent.
DECISION
PANGANIBAN, J.:
To warrant conviction based on circumstantial evidence, the totality of the
circumstances must eliminate beyond reasonable doubt the possibility of
innocence; otherwise, the accused must be acquitted.
The Case
Before us is a Petition for Review[1] on Certiorari under Rule 45 in relation to
Rule 125 of the Rules of Court, seeking to reverse, set aside, nullify and/or
modify the December 18, 2001 Decision[2] of the Court of Appeals (CA) in CA-GR
CR No. 18051. The dispositive portion of that Decision states:
WHEREFORE, foregoing premises considered, the decision appealed from
is MODIFIED. Accused-appellants Melanio Mallari and Zaldy Bontia, as well as
Leonardo Bontia are found guilty of Attempted Murder punishable under Article
248 in relation to Article 6 of the Revised Penal Code for which they
are SENTENCED to four (4) years and two (2) months of prision correccional, as
minimum, to ten (10) years of prision mayor, as maximum. The award with
respect to damages and costs stand.[3]
In its May 14, 2002 Resolution,[4] the CA denied petitioners Motion for
Reconsideration of the assailed Decision.
The Facts
Version of the Prosecution
The factual background of the case, as related by the Court of
Appeals[5] based on prosecution evidence, is as follows:
The records show that private complainant Erlinda Boyose was a teacher at the
Bustamante High School, Davao City from 1977 up to 1989. At the start, she had
a good working relationship with the school principal, appellant Melanio Mallari.
However, their relationship turned sour when she began to question appellant
Mallari on alleged unaccounted school funds.
On June 29, 1989 at about 9:00 oclock in the morning, while Boyose was at the
Guidance Office, a man approached her and asked if he can still enroll his
nephew. As enrollment was already closed, she advised the man to see Mallari,
who is the school principal.
Thereafter, Boyose went to her classroom. About twenty minutes later, the man
approached her again. Meeting him by the door, she asked the man if he was
able to talk to Mallari. The man answered that the principal was not in his office.
So, she advised the man to just return the following day.
In the afternoon, Boyose rode on a jeepney bound for Sasa, Davao. She
observed that the man who talked to her in the morning was also in the same
jeepney. She then inquired from him if he was able to talk to the principal
regarding the enrollment of his nephew but the man just ignored her.
While they were near Km. 13, Panacan, Davao City, the said man drew and
pointed a gun at Boyoses temple. Boyose heard two successive clicking sounds
of the gun but it did not fire. She heard the man utter in the Cebuano
dialect, Unsa man ni, dili man ni moboto, meaning Whats this, this will not fire.
She then grabbed the gun and grappled for its possession. But she failed.
Eventually, she was able to get out of the jeepney and ran away but the man
followed her and shot her repeatedly.
Boyose was hit in the lower mouth and at her back. She shouted for help. A man
helped her and brought her to the San Pedro Hospital where she was treated
and confined.
Policeman Remo Pagal of the Sasa Police Station was one of those who went to
the crime scene on June 29, 1989 to investigate. But nothing came out of it. He
was only able to get the description of the gunman the following day when he
interviewed the victim at the hospital.
The police investigators were able to get the lead when a certain Andy
Magdadaro went to the Sasa Police Station and told Policeman Pagal that he
knew something about the shooting of Erlinda Boyose. He told the said police
investigator that he was asked by one Edwin Amparado to kill Boyose but the
plan was not carried out. He pointed to accused-appellant Zaldy Bontia as the
man who hired Amparado to look for a triggerman.
Thus, Edwin Amparado was picked up by the police. While in the police station
where he was brought, he told the police investigators that in one occasion, he
went to the house of appellant Mallari and the latter asked him to kill Boyose who
used to be his neighbor at Doa Pilar Village but the same did not push thru. He
later offered this job to Andy Magdadaro who was his neighbor in Agdao. They
talked about the plan to kill Boyose and Magdadaro was only waiting for his go-
signal. At the police station, he executed an affidavit regarding the offer of Mallari
to kill Boyose.
On August 1, 1989, at around 3:00 p.m., Pagal together with other policemen
from the Sasa Police Station arrested appellant Zaldy Bontia near the house of
accused-appellant Mallari. Zaldy allegedly admitted participation in the incident
and implicated his brother Leonardo Bontia as the gunman. The police lost no
time in going to Asuncion, Davao del Norte to arrest Leonardo Bontia.
Leonardo Bontia was brought to the Sasa Police Station at about 2:00 p.m. of
August 2, 1989. Later that day, a police line-up was conducted and Boyose
identified accused Leonardo Bontia as the gunman. She likewise identified
accused-appellant Zaldy Bontia to be the constant companion and protg of
accused-appellant Mallari.
When the custodial investigation was about to start, the Bontia brothers were
apprised by police investigators Anastacio Naive of their rights under the
Constitution. When asked by Naive if they had a lawyer to assist them, they told
him that they had none. Naive then stopped the investigation and called the PAO
office for assistance. At around 5:00 p.m. on that day, Atty. Jonathan Jocum,** ** a
PAO lawyer arrived. Pfc. Naive then asked the Bontia brothers if they wanted to
be represented by Atty. Jocum and they said they are agreeable.
During the custodial investigation, Leonardo Bontia admitted to be the gunman.
He pointed to appellant Mallari as the one who hired him to kill Boyose. On the
[other] hand, Zaldy Bontia admitted to have been hired by Mallari to look for a
gunman to kill Erlinda Boyose and that he was the one who recommended to
Mallari his brother Leonardo Bontia to do the job for a fee.
Melanio Mallari, Leonardo Bontia and Zaldy Bontia, were accordingly charged by
Asst. City Prosecutor Jose Emmanuel M. Castillo of the crime of Frustrated
Murder, in an Information alleging
That on or about June 29, 1989, in the City of Davao, Philippines and within the
jurisdiction of this Honorable Court, the above-mentioned accused Melanio
Mallari, directly interested in the death of Erlinda P. Boyose, conspiring,
confederating and helping one another, accused Melanio Mallari induced his co-
accused Leonardo Bontia and Zaldy Bontia, the latter convincing his brother
Leonardo Bontia of the plan to kill said Erlinda P. Boyose by giving price and/or
offering a reward to kill said Erlinda P. Boyose and which price and/or offer was
accepted by said Leonardo Bontia and Zaldy Bontia; that in pursuance of said
conspiracy said accused Leonardo Bontia, with treachery and evident
premeditation, willfully, unlawfully and feloniously assaulted, and shot with a
caliber 22 Magnum homemade revolver and hit said Erlinda Boyose, thereby
inflicting upon her the following, to wit:
AVULSION. LOWER LIP AND NAPE SECONDARY TO GUNSHOT WOUND
WITH DISPLACEMENT OF TEETH ON MANDIBLE; FOREIGN BODY, G-4-5
LEVEL which injuries would ordinarily cause the death of the said Erlinda
Boyose, thus performing all the acts of execution which should have produced
the crime of murder as a consequence, but nevertheless did not produce it by
reason of causes independent of their will, that is the timely shout and cry for
help of Erlinda Boyose that as a result of which immediate assistance was had
from a member of a coast guard and by the timely and able medical assistance
rendered to the said Erlinda Boyose which prevented her death. [6]
During their arraignment,[7] all the accused pleaded not guilty. Thereafter,
herein Petitioner Mallari moved for a separate trial, which was granted by the trial
court in its Order dated September 18, 1990.
In his separate trial, Mallari did not present evidence to establish his
innocence or to refute the prosecutions evidence against him. Instead, he moved
for dismissal by way of demurrer to evidence which, however, the trial court
denied in its Order dated July 2, 1992. Thereafter, although given ample time and
granted numerous postponements over about a year, petitioner failed to present
any witness in his favor.
Even in its Memorandum, the defense did not present its version of facts.
Ruling of the Trial Court
After evaluating the evidence on record, the RTC concluded that there was
conspiracy among the three accused, although Leonardo Bontia was alone when
he shot Erlinda Boyose. It held herein Petitioner Mallari liable as principal by
inducement, Leonardo Bontia as principal by direct participation, and Zaldy
Bontia as principal by indispensable cooperation, based on the following
circumstances supposedly establishing their complicity:
1. Accused Mallari has an axe to grind against victim Boyose therefore, has an
interest of silencing her because of her persistent inquiries regarding the use or
misuse of school funds under the custody of Mallari as principal of Bustamante
Barangay High School. This is the motive for the shooting of Erlinda Boyose.
2. The contact man Zaldy Bontia is beholden to Melanio Mallari being a protg and
a man Friday of the latter who exercised moral ascendancy considering that he
promised Zaldy a steady government job and have been extending cash
advances in the form of allowances to tide him over till such time that he can
receive a regular salary from the government.
3. Leonardo Bontia is the older brother of Zaldy who at that time the job was
offered to him by Mallari to kill Boyose was in dire need of money having eight (8)
children and wife to support.
4. Leonardo Bontia when confronted by the victim at the police station readily
admitted he shot Erlinda Boyose because of the money he hopes to receive from
Mallari afterwards.
5. Zaldy Bontia gave P900.00 to Leonardo Bontia which came from Mallari so
Leonardo can hide.
6. That Zaldy Bontia likewise confessed of his participation of the crime after
being confronted by the victim at the police station.
7. Both Leonardo and Zaldy Bontia voluntarily executed an extra-judicial
statement regarding their complicity to the crime.
8. A letter marked exh. I addressed to the victim Erlinda Boyose which clearly
came from Leonardo Bontia because it contained narration of events anent the
crime and full of explicit details which only the author of the shooting has
personal knowledge of and asking for forgiveness.[8]
Thus, the RTC disposed as follows:
WHEREFORE, the prosecution having established the guilt of accused Melanio
Mallari as principal by inducement, Leonardo Bontia as principal by direct
participation and Zaldy Bontia as principal by indispensable cooperation beyond
reasonable doubt, the court finds the aforesaid three accused guilty of the crime
of frustrated murder as charged in the information. They are hereby sentenced to
suffer the indeterminate penalty of 4 years 2 months and 20 days of prision
correccional as the minimum to 11 years 6 months and 21 days of prision mayor
as the maximum and to solidarily indemnify the victim Erlinda Boyose in the
amount of P15,000.00 representing loss of income, P8,000.00 representing
hospital and medical expenses, P20,000.00 as attorneys fees and P50,000.00 as
moral damages and to pay the cost.[9]
Ruling of the Court of Appeals
On appeal, the CA essentially upheld the findings and conclusions of the
trial court, except as to the stage of the crime committed.
The appellate court was convinced that petitioner was the one who had
induced the Bontia brothers to kill Boyose, despite the absence of direct
evidence showing his participation in the crime charged. It ratiocinated that the
accused could be convicted on the basis of circumstantial evidence. There was
more than one circumstance, the facts from which the inferences were derived
had been proven, and the combination of all the circumstances was such as to
produce a conviction beyond reasonable doubt.
It further held that, in the separately held trial of petitioner, there was no
need for the prosecution to offer the evidence adduced during the trial of the
Bontia brother[s,] considering that only one criminal Complaint had been filed
against all the accused. Moreover, the issue could not be raised for the first time
on appeal.
Hence, as stated earlier, the CA modified the trial courts disposition and
convicted the accused-appellants of attempted murder.
This Petition[10] was filed only by the alleged mastermind, Melanio Mallari.
Issues
In his Memorandum, petitioner submits the following issues for the Courts
consideration:
I.
Whether the questioned CA Decision and the refusal by the Court of Appeals to
reconsider it in its CA Resolution [are in] accord with the circumstantial evidence
rule and the controlling jurisprudence thereon;
II.
Whether the questioned CA Decision and the refusal by the Court of Appeals to
reconsider it in its CA Resolution, upholding the trial courts admission of an
irrelevant, immaterial and improper evidence (coming from Edwin Amparado)
which was among the basis for conviction was in accordance with law and
jurisprudence;
III.
Whether the questioned CA Decision and the refusal by the Court of Appeals to
reconsider it in its CA Resolution, correctly sustained the trial courts
consideration of an evidence given in a separately conducted trial (not as against
the petitioner) which was among the basis for conviction; and
IV.
Whether the questioned CA Decision and the refusal by the Court of Appeals to
reconsider it in its CA Resolution, which failed to tackle all the issues raised on
appeal was consistent with due process.[11]
In brief, the issues raised before this Court will be discussed seriatim as
follows: (1) whether the trial and the appellate courts erred in taking cognizance
of evidence given in the separate trial of petitioners co-accused; (2) whether
there was sufficient circumstantial evidence to establish petitioners guilt beyond
reasonable doubt; and (3) whether the Court of Appeals failed to accord due
process to petitioner.
This Courts Ruling
The Petition is meritorious. The prosecution failed to adduce the quantum of
evidence needed for a criminal conviction.
First Issue:
Evidence Proffered in Separate Trial
Petitioner alleges that the trial and the appellate courts convicted him on the
basis mainly of evidence adduced at the separately held trial of his co-accused.
He submits that absent such evidence, there would have been no sufficient proof
to establish his guilt beyond reasonable doubt.
In its Memorandum, the Office of the Solicitor General (OSG) simplistically
contends that in the trial against petitioner, there was no need to offer anew the
evidence separately proffered against the Bontias, because the case [filed
against them] involved only one case number.[12] Respondent fails to cite
jurisprudence in support of such logic or to give even a semblance of a sound
rationale therefor.
As a rule, a court should not take judicial notice of evidence presented in
other proceedings, even if these have been brought before it or have been heard
by and are actually pending before it. This rule is especially true in criminal
cases, in which the accused have the constitutional right to confront and cross-
examine the witnesses presented against them.[13] Moreover, when a separate
trial is granted, the testimony of the accused imputing the crime to the co-
accused is not admissible against the latter, who has had no opportunity to
cross-examine the witnesses.[14]
Parenthetically, the object of conducting a separate trial would be rendered
naught if evidence proffered at the trial of one of the accused would be
considered likewise adduced in the distinct trial of the other accused. What then
would be the rationale for requesting and being granted separate trial? While the
grant of separate trials for persons jointly accused of an offense is discretionary
upon the court, the motions therefor are usually found meritorious when
antagonism is apparent in the respective defenses of the accused. [15]
In the case before us, petitioners co-accused -- Zaldy and Leonardo Bontia
-- executed, prior to trial, their respective extrajudicial confessions admitting their
complicity in the crime charged and implicating petitioner as the mastermind. On
the other hand, in denying their accusations, petitioner stood his ground and
refused to execute a statement. Precisely, their antagonistic defenses must have
impelled him to seek, and the trial court to grant him, a separate trial.
Records show, however, that most of the prosecution witnesses presented
during the trial of the Bontias were likewise presented during the separate trial of
petitioner. Testifying against him on December 20, 1990, was Pfc. Danilo
Carvajal. The latter said that, as police investigator of the Sasa Patrol Station, he
had conducted an investigation of the shooting incident involving Erlinda Boyose,
leading to the arrest of Zaldy and Leonardo Bontia and Melanio Mallari. He had
allegedly taken the supposed extrajudicial confession of Leonardo Bontia who,
after being apprised of his constitutional rights, voluntarily executed his Sworn
Statement in the presence of an inquest lawyer of the Public Attorneys Office
(PAO).[16]
On the same day, Atty. Jonathan Jocom testified that he was the PAO
lawyer who had assisted the Bontias while each of them was under custodial
investigation on August 2, 1989; that prior to their investigation, he had apprised
them of their constitutional rights to counsel and not to be compelled to make any
statement against their interests; and that despite his repeated warnings about
the negative consequences of their statements, they nevertheless voluntarily
executed and signed their statements confessing to the crime. [17]
On April 19, 1991, Pfc. Anastacio Naive testified that he had also
investigated the shooting incident; interviewed the victim (Erlinda Boyose) and
the witness (Edwin Amparado) who was an alleged friend of petitioner; and that
he had reduced the statement of Zaldy Bontia into writing after informing the
latter of his constitutional rights in the presence of Atty. Jocom. Zaldy named
Melanio Mallari as the mastermind who had asked him to look for a triggerman
who would eliminate Boyose.[18]
The testimonies of Policemen Antonio Ysulat and Victoriano Padilla were
admitted by herein petitioner, according to the stipulation of his counsel. [19] Ysulat
was the Sasa Patrol Stations exhibit custodian, to whom the gun that had
allegedly been used in the shooting incident was turned over. Padilla was the
desk officer who had recorded the Complaint regarding the incident on June 29,
1989, the appearance of Erlinda Boyose, her identification of Zaldy and Leonardo
Bontia from a police lineup, and the appearance of Petitioner Mallari at the patrol
station on August 2, 1989.
Erlinda stated[20] that she was a classroom teacher and guidance counselor
of Bustamante High School, where petitioner was the principal from 1983 to
1989; and that initially, they had a good working relationship, which turned sour
when she began inquiring about school funds that had remained unaccounted
for. On March 22, 1989, she personally handed over to him a letter [21] she had
written, reminding him of, among other things, some basic needs of the school
that had remained unmet, such as blackboards, chairs and comfort rooms for the
students; and his failure, as the school administrator in the past five years, to
account for fees collected from students.
She then admonished him in that letter for his moral indiscretions in
office;[22] recommended that he conduct dialogues/discussions with teachers,
students and their parents, to disclose financial reports so as to avoid suspicions
of fund misuse; and, finally, apologized for having to bring up all these matters,
but expressed hope that it would all be for the improvement of the school
administration. Boyose further testified that after reading the letter, Mallari told
her sarcastically that he had been to so many schools, but that it was only she
who had written to him in such a manner; he warned her that she made a
mistake in writing this [letter].
Boyose also attested to the incidents of that fateful day, June 29, 1989,
which culminated in the attempt on her life by Leonardo Bontia. He had asked
her earlier that day in school about how to enroll his nephew at the Bustamante
High School. Because of the gunshot injuries that she sustained, she had to
undergo hospitalization for which she incurred expenses.
While the instant case was pending trial, Leonardo Bontia supposedly wrote
her a letter[23] asking for forgiveness for the crime [he] had done against [her,]
saying that he was in dire need of money at the time. Allegedly, he had to go to
Mallari, hoping to be able to ask for some, but the latter instead dared [him] to
discipline Mrs. Boyose, gave [him] food and drinks until [he] got drunk, and also
promised to give him money and a job. Because the accused was drunk and,
thus, out of his mind, he supposedly gave in to the prodding of Mallari.
 Only two other witnesses against the Bontias were not presented against
Petitioner Mallari. They were (1) Pfc. Remo Pagal, who had also participated in
the investigation and allegedly received an informers tip that led to their arrest;
and (2) Dr. Roberto Alabado, who had treated the injuries of the victim.[24]
The remaining witnesses at the separate trial of the Bontias were
petitioners co-accused, Zaldy and Leonardo Bontia. It is worth noting that despite
their earlier confessions -- as attested to by Witnesses Carvajal, Jocom and
Naive -- the Bontia brothers, assisted by counsel, entered a plea of not guilty.
Moreover, during their trial, the brothers denied committing the crime; admitted to
having signed their respective statements; but alleged that these had been
procured without the assistance of counsel and with the police officers use of
force, intimidation and violence.[25]
After reading the testimonies of Pagal, Alabado and the two Bontias and
reviewing the rulings, we find that the trial and the appellate courts could not
have taken those testimonies into substantial consideration, if at all, in convicting
the petitioner. In fact, the testimonies of Pagal and Alabado were merely
corroborative of those of the other witnesses who were presented during
petitioners trial. On the other hand, the declarations of Zaldy and Leonardo
Bontia in open court were, on their face, favorable to him. And the lower courts
cognizance of those declarations would not have prejudiced him, as petitioner
asserts. However, despite the denials by the Bontias, the lower courts still found
them, including petitioner, guilty.
We therefore find no basis at all for the allegation of petitioner that the trial
and the appellate courts convicted him on the ground of evidence adduced at his
co-accuseds separate trial, but supposedly not during his own trial.
Second Issue:
Sufficiency of Circumstantial Evidence
A close perusal of the testimonies of the witnesses presented against
petitioner reveals the absence of direct evidence establishing his criminal
participation. Nonetheless, in the absence of direct proof, a conviction may still
be based on circumstantial evidence. But to warrant such conviction, the
following requisites must concur: (1) there is more than one circumstance, (2) the
facts from which the inferences are derived are proven, and (3) the combination
of all the circumstances is such as to produce a conviction beyond reasonable
doubt.[26]
Corollary to the constitutional precept that the accused is presumed
innocent until the contrary is proved, a conviction based on circumstantial
evidence must exclude each and every hypothesis consistent with
innocence.[27] Hence, if the totality of the circumstances eliminates beyond
reasonable doubt the possibility of innocence, conviction is proper; otherwise, the
accused must be acquitted.[28]
With the above jurisprudential premises in mind, we examined the
circumstances on the basis of which petitioner had been found guilty beyond
reasonable doubt and, consequently, convicted.
According to the CA, the following circumstances were sufficient to
establish the criminal culpability of the three accused (Zaldy and Leonardo
Bontia, as well as Petitioner Mallari):
x x x. First, appellant Mallari had an axe to grind against the victim because of
her persistent inquiries regarding the use or misuse of school funds under the
custody of Mallari as principal of Bustamante Barangay High School. This fact
shows the motive of Mallari in silencing her. Second, Zaldy Bontia, the person
who looked for a killer, is beholden to Melanio Mallari, considering that the latter
had promised him a steady government job and had been giving cash advances
in the form of allowance to tide him over till such time that he could receive a
regular salary from the government. Third, Leonardo Bontia is the older brother
of Zaldy. When the job to kill Boyose was offered by Mallari to Leonardo Bontia,
the latter immediately acceded considering that he was in dire need of money
having eight (8) children and a wife to support. Thus, when confronted by the
victim at the police station, he readily admitted that he shot Erlinda Boyose
because of the consideration he hoped to receive from Mallari afterwards.
Fourth, the money in the amount of P900.00 which Zaldy Bontia gave to his
brother Leonardo so that he can hide came from Mallari. Fifth, the confession
made by Zaldy Bontia concerning his participation to the crime after he was
confronted by the victim at the police station. Sixth, both Leonardo and Zaldy
Bontia voluntarily executed extra-judicial statements regarding their involvement
in the crime. In their respective extra-judicial confession, they pointed to Mallari
as the person who induced them to kill Boyose. Finally, the letter of Leonardo
Bontia marked as Exhibit I, addressed to the victim asking for forgiveness,
contained narration of events with full of explicit details regarding the commission
of the crime.[29]
In its Memorandum,[30] the OSG substantially repeats the above
circumstances in support of the conviction of petitioner.
The first circumstance -- that Mallari had an axe to grind against the victim
because of her persistent inquiries regarding the use or misuse of school funds --
appears to be a conclusion based merely on the impression of the victim herself.
Other than the one letter[31] she wrote to petitioner, only her self-serving
statement supported her allegation that she had questioned persistently
(several times) his supposed administrative malpractices as school principal.
Be that as it may, a reading of that letter, which was indeed replete with
denigrating statements against him, probably served as a motive for a reprisal
from him, if its contents were not treated as constructive criticism. To the extent
that it tends to establish motive, this circumstance may be taken into
consideration in the overall assessment of the evidence against him.
The second to the fourth circumstances[32] are not directly established by
the evidence against petitioner. None of the prosecution witnesses testified
thereon. A scrutiny of the records of the case reveals that those circumstances
were derived from the Written Statements[33] that had been made by petitioners
co-accused and presented when Prosecution Witnesses Carvajal and Naive
testified. These witnesses were the police investigators who had reduced into
writing the statements of Leonardo and Zaldy Bontia at the time of the arrest of
the latter two.
Section 36 of Rule 130 of the Rules of Court provides that witnesses can
testify only with regard to facts of which they have personal knowledge;
otherwise, their testimonies would be inadmissible for being hearsay.[34] In the
present case, neither of the said witnesses had personal knowledge of the
second to the fourth circumstances considered by the appellate court, or of the
rest of the statements made by the declarants in their respective Written
Statements. The witnesses merely attested to the voluntariness and due
execution of the Bontias respective extrajudicial confessions. Thus, insofar as the
substance of those confessions is concerned, the testimonies of the police
witnesses are mere hearsay.[35]
The fifth and the sixth circumstances refer to the aforementioned Written
Statements of petitioners co-accused who did not, however, testify against him.
Well-settled is the rule that extrajudicial declarations are inadmissible in evidence
against the declarants co-accused.[36] The admission by the court of such
declarations violates the incriminated persons right to due process. This principle
holds if, as in the case before us, the declarants fail to take the witness stand and
thereby deny the accused-petitioner the fundamental right to confront and cross-
examine them face-to-face, in order to test their truthfulness and credibility.
True, there are exceptions to this rule, such as when the confession is used
as circumstantial evidence to show the probability of the participation of the co-
accused in the crime, or when the confession is corroborated by other pieces of
evidence.[37] In such instances, the significance of the confession comes to the
fore, but only in relation to the other circumstantial evidence establishing the guilt
of the person incriminated. In the instant case, the merits of the fifth and the sixth
circumstances mentioned by the appellate court depend, therefore, on the
strength of the other circumstantial evidence against petitioner.
But, as discussed so far, just the first circumstance, establishing petitioners
motive, may be given due weight. Only one more remains to be considered, as
the three other circumstances have been discounted as hearsay.
This last circumstance cited by the appellate court pertains to a supposed
letter of Leonardo Bontia addressed to the victim, containing explicit details
regarding the commission of the crime and asking for forgiveness. The latter was
presented as part of the testimony of the victim, Erlinda Boyose. However,
Leonardo was not presented in court to identify it. No other witness testified as to
its genuineness or as to the fact that it had personally and voluntarily been
written by him. Incidentally, Boyose received it through the mail, and no one ever
attested that it had in fact been written and sent by the same Leonardo Bontia,
petitioners co-accused.[38]
As we have said earlier, witnesses can testify only with regard to facts of
which they have personal knowledge. Testimonial or documentary evidence is
hearsay if it is based, not on the personal knowledge of the witness, but on the
knowledge of some other person not on the witness stand. Consequently,
hearsay evidence -- whether objected to or not -- has no probative value unless
the proponent can show that the evidence falls within any of the exceptions to the
hearsay rule, as provided in the Rules of Court. [39] Clearly, none of the
exceptions apply to the present case.
Thus, an unverified and unidentified private document cannot be accorded
probative value. It is precluded because the party against whom it is presented is
deprived of the right and opportunity to cross-examine the person to whom the
statements or writings are attributed. Its executor or author should be presented
as a witness to provide the other party to the litigation the opportunity to question
its contents. Being mere hearsay evidence, failure to present the author of the
letter renders its contents suspect and of no probative value. [40]
There is another circumstance, not mentioned by the appellate court but
advanced by the Office of the Solicitor General: that Prosecution Witness Edwin
Amparado declared that he had been contacted by petitioner to kill Boyose. Let
us first recall the testimony of that witness, as related by the trial court:
On December 11, 1990, Edwin Amparado testified that he personally knows
accused Mallari because he studied at F. Bangoy Barangay High School where
Melanio Mallari was the principal from 1983 to 1984, that he also knows Zaldy
Bontia, that the last time he saw Zaldy Bontia was in February 1989 in the house
of Melanio Mallari located at Juan Luna, corner Chavez Streets, that he went to
the house of Melanio Mallari to pledge his electric fan, that Melanio Mallari asked
him to kill Mrs. Boyose who used to be his neighbor at Doa Pilar Village but
nothing came out of it, that later he heard over the radio that Mrs. Boyose was
shot, that he knows Andy Magdadaro who was his neighbor in Agdao, that they
talked about the plan to kill Mrs. Boyose, that Andy Magdadaro was only waiting
for his go-signal, that he executed an affidavit regarding the offer of Melanio
Mallari to kill Mrs. Boyose. He said on cross-examination that he did not feel
disgusted when Mallari asked him to kill Mrs. Boyose, that he thought of killing
Mrs. Boyose and relayed the offer to Andy Magdadaro the same job, that he is
close to Mr. Mallari, that the job of killing Mrs. Boyose was the only illegal job
offered to him by Melanio Mallari, that during that time he needed money
because his wife was pregnant, that he relayed the offer to Andy Magdadaro
because he is a rebel returnee.[41]
It appears that the prosecution presented Amparado merely to show that
petitioner had criminal intent against the victim. The testimony of the witness,
however, concerned petitioners alleged proposal to him (not to the Bontias) to kill
Boyose -- an act that, by his own admission, did not materialize. Even if indeed
petitioner made such a proposal, it did not necessarily mean that it was also
made to the Bontias, absent any strong supporting evidence. The witness does
not in fact appear privy to any conspiracy between petitioner and the Bontias.
Thus, insofar as the actual attempt on the life of Boyose is concerned,
Amparados testimony is clearly irrelevant or of no probative weight. It does not
tend to establish, to any reasonable degree, the probability of a fact in issue [42] --
whether petitioner had induced or conspired with the Bontias to kill Boyose.
Hence, the testimony is worthless in establishing the guilt of petitioner of the
crime charged against him.
In the final analysis, other than the victims letter to petitioner tending to
establish his ill motive, there is hardly any evidence to corroborate his co-
accuseds extrajudicial confessions (later recanted) or to establish the probability
of his actual participation (by inducement) in the commission of the crime.
Considering that the strength of the prosecution evidence against him falls short
of the required quantum of proof beyond reasonable doubt, his constitutional
right to be presumed innocent must prevail.
The Court has repeatedly held that when the circumstances shown to exist
yield at least two inferences -- one of which is consistent with the presumption of
innocence and the other with the finding of guilt -- the Court must acquit the
accused, because the evidence does not then fulfill the test of moral certainty or
suffice to support a judgment of conviction.[43]
Consistent with the above principles, and in view of the dearth of evidence
to prove his guilt beyond reasonable doubt, petitioner must be acquitted.

Third Issue:
Due Process

Petitioner also claims that he was denied due process by the Court of
Appeals, because it allegedly failed to tackle all the issues raised in his appeal
brief.
While it is no longer necessary to resolve this issue in view of our
disposition of the second one, it is enough to say that petitioner has neglected to
substantiate this allegation in his Petition. He did not, in fact, even care to point
out -- much less discuss -- what issues the appellate court had failed to resolve.
In any event, a wrong disposition by the court is not tantamount to denial of due
process.
WHEREFORE, the assailed Decision insofar as it pertains to Petitioner
is REVERSED and SET ASIDE. On reasonable doubt, Petitioner Melanio
Mallari y Liberato is ACQUITTED. The director of the Bureau of Corrections is
directed to cause the immediate release of petitioner, unless the latter is being
lawfully held for another cause; and to inform the Court of the date of his release,
or the reasons for his continued confinement, within ten days from notice. No
costs.
SO ORDERED.
G.R. No. 146586 January 26, 2005
DEPARTMENT OF EDUCATION CULTURE and SPORTS, petitioner,
vs.
JULIA DEL ROSARIO, MARIA DEL ROSARIO, PACENCIA DEL ROSARIO,
and HEIRS OF SANTOS DEL ROSARIO, respondents.
DECISION
CARPIO, J.:
The Case
This is a petition for review1 to set aside the Decision2 dated 25 September 2000
and the Resolution dated 29 December 2000 of the Court of Appeals in CA-G.R.
CV No. 43929. The Court of Appeals reversed the Decision 3dated 7 July 1993 of
the Regional Trial Court of Bulacan, Branch 8, Malolos ("trial court") in Civil Case
No. 70-M-92.
The Facts
On 14 February 1992, respondents Julia Del Rosario, Maria Del Rosario,
Pacencia Del Rosario and the Heirs of Santos Del Rosario ("respondents") filed
before the trial court a complaint for Recovery of Possession against petitioner
Department of Education, Culture and Sports ("DECS"). Respondents alleged
that they own a parcel of land with an area of 1,181 square meters ("Property")
situated in Kaypombo,4 Sta. Maria, Bulacan. The Property was registered in 1976
in the name of respondents under Transfer Certificate of Title No. T-222432 of
the Bulacan Register of Deeds. Respondents alleged that the Kaypombo Primary
School Annex ("KPPS") under DECS was occupying a portion of the Property
through respondents’ tolerance and that of their predecessors-in-interest.
Respondents further alleged that KPPS refused to vacate the premises despite
their valid demands to do so.
In its Answer, DECS countered that KPPS’s occupation of a portion of the
Property was with the express consent and approval of respondents’ father, the
late Isaias Del Rosario ("Isaias"). DECS claimed that some time in 1959 Isaias
donated a portion ("Donated Site") of the Property to the Municipality of Sta.
Maria ("Municipality") for school site purposes. Atty. Ely Natividad, now a regional
trial court judge ("Judge Natividad"), prepared the deed of donation and the
acceptance. KPPS started occupying the Donated Site in 1962. At present,
KPPS caters to the primary educational needs of approximately 60 children
between the ages of 6 and 8. Because of the donation, DECS now claims
ownership of the 650 square meter Donated Site. In fact, DECS renamed the
school the Isaias Del Rosario Primary School.
During the pre-trial conference held on 3 September 1992, DECS admitted the
existence and execution of TCT No. T-222432 (Exhibit "A"), Tax Declaration No.
6310 (Exhibit "B"), and the tax receipts in respondents’ names for the years 1991
and 1992 (Exhibits "B-1" and "B-2"). On the other hand, respondents admitted
the existence of Judge Natividad’s affidavit that he prepared the deed of donation
(Exhibit "1") and the tax declaration for 1985 in the Municipality’s name (Exhibit
"2"). Since there was no dispute that the Property was registered in respondents’
names, the parties agreed to a reverse trial with DECS presenting its evidence
first to prove that there was a valid donation to the Municipality.
DECS presented three witnesses: Ricardo Nicolas, Vidal De Jesus and Judge
Natividad, all residents of Kaypombo, Sta. Maria, Bulacan. The trial court
summarized the witnesses’ testimonies, thus:
Defendant, represented by the Office of the Solicitor General, proceeded to
present as its first witness, Ricardo Nicolas, 78 years old, widower, housekeeper
and residing at [K]aypombo, Sta. Maria, Bulacan, since 1953 up to the present.
He testified that during the duration of his residency in [K]aypombo, he came
across a public elementary school (KPPS); that as far as he knows, the land
occupied by the primary school was formerly owned by Isaias del Rosario who
donated said land to the people of Sta. Maria, Bulacan in 1959; that the act of
donating said land was made during a political meeting in his residence by Isaias
del Rosario and in the presence of the then incumbent mayor; he actually saw
Isaias del Rosario and Mayor Ramos sign a document which is a deed of
donation in favor of the Municipality of Sta. Maria; that the signing was made in
the presence of Judge Natividad who was then a municipal councilor; that Isaias
del Rosario is now dead but his death occurred long after the construction of the
KPPS and that Isaias del Rosario even witnessed the construction of the primary
school.
Vidal de Jesus, the second witness for the defense, 65 years old, married, a
barangay councilman of Kaypombo, Sta. Maria, Bulacan, and presently residing
at No. 437 Kaypombo, Sta. Maria, Bulacan, testified that as barangay
councilman, he was aware of the land problem of KPPS; that in 1991, the
barangay council and the children of Isaias del Rosario had a meeting in the
presence of Judge Natividad, during which, the latter told the children of Isaias
del Rosario that the land had been donated by their father. The children agreed
but requested that the school be renamed after their father’s name; that the
barangay council tried to secure a copy of the deed of donation from the
Municipality of Sta. Maria, but according to the people at the municipal hall, when
they transferred to the new municipal building, the deed got lost, only they were
able to get a copy of the tax declaration in the name of the municipality of Sta.
Maria, Bulacan (Exh. "2"), a certification to that effect was issued by the
municipal mayor (Exh. "3"). They went to the DECS office in Malolos, but could
not likewise find a copy of the deed.
The last witness for the defense was Judge Eli Natividad, 63 years old, widower,
resident of Kaypombo, Sta. Maria, Bulacan. He testified that KPPS is very near
his house; that the land occupied by said school is formerly owned by Isaias del
Rosario, a close relative; that as far as he knows, the municipality of Sta. Maria is
now the owner of the land; that when he was still one of the incumbent municipal
councilors of Sta. Maria in 1961, his relative Isaias del Rosario went to his house
and told him that he wanted to have a primary school in their place as he saw the
plight of small pupils in their place; that the elementary school then existing was
very far from their place and Isaias del Rosario wanted to have a primary school
to help these pupils; that Isaias del Rosario was willing to donate a portion of the
questioned lot for school site, so that said matter was relayed to the municipal
council; he also testified that he prepared the deed of donation which was signed
by Isaias del Rosario in his residence which was accepted by the municipality of
Sta. Maria, Bulacan through a resolution signed in the office of the secretary and
the municipal mayor; that a copy of said resolution could not be found due to the
transfer of the municipal hall from the old to the new building.5
Respondents presented two witnesses: Eugenia R. Ignacio and Maria Del
Rosario-Esteban, daughters of the late Isaias. The trial court summarized their
testimonies, as follows:
For the plaintiffs, Eugenia R. Ignacio, 59, residing at Kaypombo, Sta. Maria,
Bulacan testified that she knows the plaintiffs as they are her brothers/sisters;
that their father Isaias del Rosario died on April 18, 1966 long after the
construction of the school and that she does not know everything about the
donation because her father never informed them of his dealings and she did not
inquire from him about the occupancy of the lot by the school.
Maria del Rosario-Esteban, 66, residing at Pulang-lupa, Pandi, one of the
plaintiffs herein, testified that she knows the property in question and that they
own it by virtue of succession and that she cannot recall how the school was
constructed on the land; that her parents never donated any property because
that is their only property. Also, she stated that their father told them that he just
lent the property temporarily to the municipality and she never found any
document conveying the lot in question to the municipality of Sta. Maria,
Bulacan.6
On 7 July 1993, the trial court rendered judgment dismissing respondents’
complaint for recovery of possession as follows:
WHEREFORE, based on the foregoing premises, and for a much greater cause,
the instituted complaint, for recovery of possession of 1,181 square meters of
land in Kaypombo, Sta. Maria, Bulacan, covered by TCT No. T-222432 against
the defendant is hereby DISMISSED without costs.7
The trial court explained its decision in this wise:
After a careful consideration of the facts at hand, taking into account the
credibility and reasonableness of the testimonies of the witnesses, the court is of
the opinion that the defense was able to prove the due execution of the deed of
donation and its acceptance, as well as the loss of the same, in accordance with
Rule 130[,] Sec. 4. It is recalled that Judge Eli Natividad, then a municipal
councilor of Sta. Maria, testified that he was the person who prepared the deed
of donation and later notarized the same, and that said deed was duly executed
and signed before him and in his presence. Likewise, he affirmed that the
municipal board of Sta. Maria, Bulacan, passed a resolution accepting the deed
of donation in favor of the said municipality. Noteworthy is the rule that a
recantation/recollection of witness is a form of secondary evidence to prove the
existence/content of a document. Since the loss of the deed subject matter of this
case was likewise duly proved by the defense, exerting the best possible efforts
to locate or secure a copy of the same and without bad faith on its part, this Court
is bent to give a greater weight to the secondary evidence adduced by the
defense vis-à-vis the title in the name of the plaintiff[s], most particularly in this
case, where the plaintiffs failed to make it appear that other and more secondary
evidence is known to the defendant and can be produced by them.
Further judging on the consistency, credibility and personality of the witnesses of
the defense, notably Judge Eli Natividad who was then a municipal councilor of
Sta. Maria at the time of the execution of the deed of donation and who is thus in
a best position to testify on the matter, not to mention the fact that their
testimonies were all under oath, the Court cannot avoid but give weight to their
statements and declarations. The defense witnesses were not induced by ill
motive to testify in favor of the DECS, considering that they will not derive any
personal benefit, material or otherwise, from such an act. On the contrary, such
act may be considered heroic, as it is a manifestation of a moral compulsion to
help shed light to the truth.
On the part of the plaintiffs, it was testified to by Eugenia Ignacio that their father
(donor) died on April 18, 1966, long after the school was constructed on the
subject land with the occupation of the land by the school which continued up to
the present, and even after the land was allegedly transferred by succession to
the plaintiffs in 1976, it was only now that it comes to the mind of the plaintiffs to
seek recovery of the possession of the same. This, among other things, may be
taken to favor the stand of the defense that the land occupied by the school was
in truth, donated to the municipality of Sta. Maria. 8
Respondents appealed to the Court of Appeals. On 25 September 2000, the
Court of Appeals rendered judgment as follows:
WHEREFORE, premises considered, the appealed decision is REVERSED and
another one entered ordering the defendant to vacate the subject premises.9
The appellate court denied DECS’ motion for reconsideration in the Resolution
dated 29 December 2000. Hence, this petition.
The Court of Appeals’ Ruling
The Court of Appeals held that DECS failed to prove the existence and due
execution of the deed of donation as well as the Resolution of the municipal
council accepting the donation. The Court of Appeals was not fully satisfied that
DECS or the Municipality had made a diligent search of the alleged "lost" deed of
donation. Pertinent portions of the Court of Appeals’ Decision read:
It is unfortunate that the Deed of Donation and the Resolution were not produced
during the trial. The defendant alleged that these were lost when the Municipality
transferred to a new building. The defendant resorted to proving the documents’
existence through Sec. 5 of Rule 130 (B) of the Revised Rules on Evidence by
relying on the testimony of the witnesses who were present during the execution
of the lost documents. xxx.
xxx
The Court disagrees with the ruling of the lower court to the effect that the
defendant was able to satisfy the foregoing requisites. The defense was not able
to prove the due execution or existence of the deed of donation and the
resolution, as well as the loss of these documents as the cause of their
unavailability.
The Rule requires that the defendant must "prove its contents by a copy, or by a
recital of its contents in some authentic document, or by the testimony of the
witnesses in the order stated". However, the defendant proceeded with the last
resort-testimony of the witnesses, without even showing any diligent effort to
secure a copy of the deed of donation and the resolution. Note that Atty. Eli
Natividad, then a municipal councilor of Sta. Maria, testified that he was the
person who prepared the deed of donation and later notarized the same. He also
affirmed that the municipal board of Sta. Maria, Bulacan passed a Resolution as
he was a municipal councilor at that time such resolution was passed. He
testified that he furnished the municipal government, the Division Office of
Education in Bulacan, the court of Sta. Maria a copy of the deed. However, the
defendant only submitted an affidavit showing that the deed can no longer be
located in the municipal government. There was no evidence to show that the
defendant looked for a copy from the Clerk of Court of Sta. Maria, Bulacan. If it is
true that Atty. Natividad notarized the deed, he should have a copy of it. In fact,
such act of notarizing the deed should have been in his notarial register. This
notarial register was supposed to be forwarded to the Clerk of Court of the Court
of First Instance of the province and later, to the Chief of the National Library.
"Before secondary evidence of a writing may be introduced on the ground that
the instrument has been lost there must be proof that a diligent search has been
made in the place where it is most likely to be found and that the search has not
been successful."
In the case at bar, this Court is not fully satisfied that a search was made or that
there was diligence in the search. The lower court erred in hastily concluding that
the loss of the document was sufficiently established when in fact, the defendant
did not look for it in the office of the Clerk of Court and the National Library. Since
there was no diligent search, this Court finds it hard to believe the defendant’s
theory that such documents existed because, for sure, if there really was a
notarized deed or a resolution, there must be a copy.
"Secondary evidence of the contents of writings is admitted upon the theory that
the original cannot be produced by the party by whom the evidence is offered
within a reasonable time by the exercise of reasonable diligence. Until, however,
the non-production of the primary evidence has been sufficiently accounted for,
secondary evidence is not ordinarily admissible."
For this Court to affirm the ruling of the lower court based on testimonies alone
will work injustice to the plaintiffs.10
The Issue
In its memorandum, DECS raises the sole issue of –
WHETHER THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT
PETITIONER FAILED TO PROVE THE DUE EXECUTION OR EXISTENCE OF
THE DEED OF DONATION AND THE RESOLUTION OF THE MUNICIPAL
COUNCIL ACCEPTING THE DONATION, AS WELL AS THE LOSS OF THE
DOCUMENTS AS THE CAUSE OF THEIR UNAVAILABILITY.11
The Solicitor General contends that DECS had satisfactorily proven by
secondary evidence the fact of donation, the existence and due execution of the
deed of donation as well as the municipal council Resolution accepting the
donation. DECS had also adequately proven the loss of these documents.
According to the Solicitor General, based on the evidence presented in the trial
court, DECS established that Isaias donated a parcel of land to the Municipality
as the site of a school. Isaias executed a deed of donation, which then Atty. Eli
Natividad notarized. There was a municipal council Resolution accepting the
donation and expressing gratitude to Isaias. There was notice of this acceptance
as DECS constructed the school on the Donated Site during the lifetime of the
donor, without objection on his part. Since all the essential formalities had been
followed, the donation made by Isaias long after the death of his wife Nieves
Gumatay is valid and proven by secondary evidence.
The Court’s Ruling
The petition lacks merit.
Formal Requisites of Donations of Real Property
The donation of real property, which is a solemn contract, is void without the
formalities stated in Article 749 of the Civil Code of the Philippines ("Civil Code").
Article 749 of the Civil Code reads:
Art. 749. In order that the donation of an immovable may be valid, it must be
made in a public document, specifying therein the property donated and the
value of the charges which the donee must satisfy.
The acceptance may be made in the same deed of donation or in a separate
public document, but it shall not take effect unless it is done during the lifetime of
the donor.
If the acceptance is made in a separate instrument, the donor shall be notified
thereof in an authentic form, and this step shall be noted in both instruments.
Article 749 of the Civil Code requires that the donation of real property must be
made in a public instrument. Otherwise, the donation is void. A deed of donation
acknowledged before a notary public is a public document.12The notary public
shall certify that he knows the person acknowledging the instrument and that
such person is the same person who executed the instrument, acknowledging
that the instrument is his free act and deed. The acceptance may be made in the
same deed of donation or in a separate instrument. An acceptance made in a
separate instrument must also be in a public document. If the acceptance is in a
separate public instrument, the donor shall be notified in writing of such fact. Both
instruments must state the fact of such notification.13
Best and Secondary Evidence
The best or primary evidence of a donation of real property is an authentic copy
of the deed of donation with all the formalities required by Article 749 of the Civil
Code. The duty to produce the original document arises when the subject of the
inquiry are the contents of the writing in which case there can be no evidence of
the contents of the writing other than the writing itself. Simply put, when a party
wants to prove the contents of the document, the best evidence is the original
writing itself.
A party may prove the donation by other competent or secondary evidence under
the exceptions in Section 3, Rule 130 of the Revised Rules on Evidence. Section
3 reads:
SEC. 3. Original document must be produced; exceptions. – When the subject of
inquiry is the contents of a document, no evidence shall be admissible other than
the original document itself, except in the following cases:
(a) When the original has been lost or destroyed, or cannot be produced
in court, without bad faith on the part of the offeror;
(b) xxx;
(c) xxx;
(d) xxx.
In relation to this, Section 5 of Rule 130 reads:
SEC. 5. When original document is unavailable. – When the original document
has been lost or destroyed, or cannot be produced in court, the offeror, upon
proof of its execution or existence and the cause of its unavailability without bad
faith on his part, may prove its contents by a copy, or by a recital of its contents
in some authentic document, or by the testimony of witnesses in the order stated.
Secondary evidence of the contents of a document refers to evidence other than
the original document itself.14 A party may introduce secondary evidence of the
contents of a written instrument not only when the original is lost or destroyed,
but also when it cannot be produced in court, provided there is no bad faith on
the part of the offeror. However, a party must first satisfactorily explain the loss of
the best or primary evidence before he can resort to secondary evidence. A party
must first present to the court proof of loss or other satisfactory explanation for
non-production of the original instrument. The correct order of proof is as
follows: existence, execution, loss, contents, although the court in its discretion
may change this order if necessary.15
The testimony of Ricardo Nicolas may have established to some extent
the existence of the deed of donation since he testified that he was present when
Isaias and the mayor talked about the donation and that he witnessed the signing
of the document.1a\^/phi1.net However, Ricardo Nicolas admitted during cross-
examination that he did not read and did not have personal knowledge of the
contents of the document that Isaias and the mayor supposedly signed.16
In the same vein, Vidal De Jesus’ testimony does not help to establish the deed
of donation’s existence, executionand contents. He testified that he never saw
the deed of donation. On cross-examination, Vidal De Jesus admitted that the
information that Isaias donated the lot to the Municipality was only relayed to him
by Judge Natividad himself.17 If at all, DECS offered Vidal De Jesus’ testimony to
establish the loss of the deed of donation. Vidal de Jesus testified that the
barangay council tried to get a copy of the deed but the Municipality informed the
barangay council that the deed was lost when the municipal office was
transferred to a new building. DECS also made a search in the DECS office in
Malolos but this proved futile too.
This leaves us with Judge Natividad’s testimony. Judge Natividad testified that he
prepared and notarized the deed of donation. He further testified that there was a
municipal council Resolution, signed in the Office of the Secretary and of the
Mayor, accepting the donation and expressing gratitude to the donor. He
furnished the municipal government, the DECS Division Office of Bulacan and
the clerk of court of Sta. Maria a copy of the deed of donation.
DECS did not introduce in evidence the municipal council Resolution accepting
the donation. There is also no proof that the donee communicated in writing its
acceptance to the donor aside from the circumstance that DECS constructed the
school during Isaias’ lifetime without objection on his part. There is absolutely no
showing that these steps were noted in both instruments.
Sufficiency of Proof of Loss
What mainly militates against DECS’ claim is, as the Court of Appeals found,
inadequate proof that DECS or the Municipality made a diligent search in the
places where the deed of donation may likely be found and that the search was
unsuccessful. Prior to the introduction of secondary evidence, a party must
establish the existence and due execution of the instrument. After a party
establishes the existence and due execution of the document, he must prove that
the document was lost or destroyed.18 The destruction of the instrument —
may be proved by any person knowing the fact. The loss may be shown by any
person who knew the fact of its loss, or by any one who had made, on the
judgment of the court, a sufficient examination in the place [or] places where the
document or papers of similar character are usually kept by the person in whose
custody the document lost was, and has been unable to find it; or who has made
any other investigation which is sufficient to satisfy the court that the instrument
is indeed lost.19
Here, DECS allegedly made a search in the municipal building and in the DECS
Division Office in Bulacan. The copies of the deed of donation furnished these
offices were purportedly "lost" when these offices transferred to new locations.
However, as the Court of Appeals correctly pointed out, Judge Natividad who
claimed to have notarized the deed of donation failed to account for other copies
of the deed, which the law strictly enjoins him to record, and furnish to other
designated government offices.
The Notarial Law is explicit on the obligations and duties of a notary public. The
law requires him to keep a notarial register where he shall record all his official
acts as notary public. The law specifies the information that the notary public
must enter in the notarial register. Failure to perform this duty results in the
revocation of his commission as notary public. We quote the provisions of the
Notarial Law pertinent to the case:
SECTION 245. Notarial register. - Every notary public shall keep a register to be
known as the notarial register, wherein record shall be made of all his official acts
as notary; and he shall supply a certified copy of such record, or any part thereof,
to any person applying for it and paying the legal fees therefor.1ªvvphi1.nét
Such register shall be kept in books to be furnished by the Attorney-General
(Solicitor-General) to any notary public upon request and upon payment of the
actual cost thereof, but officers exercising the functions of notaries public ex
officio shall be supplied with the register at government expense. The register
shall be duly paged, and on the first page, the Attorney-General (Solicitor-
General) shall certify the number of pages of which the book consist[s].
SECTION 246. Matters to be entered therein. - The notary public shall enter in
such register, in chronological order, the nature of each instrument executed,
sworn to, or acknowledged before him, the person executing, swearing to, or
acknowledging the instrument, the witnesses, if any, to the signature, the date of
the execution, oath, or acknowledgment or the instrument, the fees collected by
him for his services as notary in connection therewith, and; when the
instrument is contract, he shall keep a correct copy thereof as part of his
records, and shall likewise enter in said records a brief description of the
substance thereof, and shall give to each entry a consecutive number, beginning
with number one in each calendar year. The notary shall give to each instrument
executed, sworn to, or acknowledged before him a number corresponding to the
one in his register, and shall also state on the instrument the page or pages of
his register on which the same is recorded. No blank line shall be left between
entries.
xxx
At the end of each week the notary shall certify in his register the number of
instruments executed, sworn to, acknowledged, or protested before him; or if
none, such certificate shall show this fact.
A certified copy of each month’s entries as described in this section and a
certified copy of any instrument acknowledged before them shall within the
first ten days of the month next following be forwarded by the notaries
public to the clerk of the Court of First Instance of the province and shall be
filed under the responsibility of such officer; Provided, that if there is no entry to
certify for the month, the notary shall forward a statement to this effect in lieu of
the certified copies herein required. (As amended by C.A. 72, Sec. 1.)
SECTION 247. Disposition of notarial register. - Immediately upon his notarial
register being filled, and also within fifteen days after the expiration of his
commission, unless reappointed, the notary public shall forward his
notarial register to the clerk of the Court of First Instance of the province or
of the City of Manila, as the case may be, wherein he exercises his office, who
shall examine the same and report thereon to the judge of the Court of First
Instance. If the judge finds that no irregularity has been committed in the keeping
of the register, he shall forward the same to the chief of the division of
archives, patents, copyrights, and trade-marks. In case the judge finds that
irregularities have been committed in the keeping of the register, he shall refer
the matter to the fiscal of the province - and in the City of Manila, to the fiscal of
the city - for action and the sending of the register to the chief of the division of
archives, patents, copyrights, and trade-marks shall be deferred until the SO ORDERED.
termination of the case against the notary public. (Emphasis and underscoring
supplied)

The Notarial Law mandates a notary public to record in his notarial register the
necessary information regarding the instrument acknowledged before him. The
Notarial Law also mandates the notary public to retain a copy of the instrument
acknowledged before him when it is a contract.20 The notarial register is a record
of the notary public’s official acts. Acknowledged instruments recorded in the
notarial register are public documents.21 If the instrument is not recorded in the
notarial register and there is no copy in the notarial records, the presumption
arises that the document was not notarized and is not a public document.22

DECS should have produced at the trial the notarial register where Judge
Natividad as the notary public should have recorded the deed of donation.
Alternatively, DECS should have explained the unavailability of the notarial
register. Judge Natividad could have also explained why he did not retain a copy
of the deed of donation as required by law. As the Court of Appeals correctly
observed, there was no evidence showing that DECS looked for a copy from the
Clerk of Court concerned or from the National Archives. All told, these
circumstances preclude a finding that DECS or the Municipality made a diligent
search to obtain a copy of the deed of donation.

In civil cases, the party having the burden of proof must establish his case by a
preponderance of evidence. "Preponderance of evidence" means that the
evidence as a whole adduced by one side is superior to that of the other. In other
words, preponderance of evidence means the greater weight of the evidence - or
evidence that outweighs the evidence of the adverse party. This Court is not
satisfied that the evidence on the side of the party carrying the burden of proof is
of preponderating weight.

Finally, DECS raises for the first time before this Court the issue on whether
respondents’ claim is barred by the equitable defense of laches. DECS did not
raise this matter in the complaint or during the trial in the court below. DECS did
not also raise this matter in its appeal to the Court of Appeals.l^vvphi1.net This
Court cannot entertain this issue at this late stage, for to do so would plainly
violate the basic rule of fair play, justice and due process. 23

Much as we sympathize with the plight of the schoolchildren, we do not find

reversible error in the Decision of the Court of Appeals. We cannot grant the
relief DECS is seeking and disregard existing laws and jurisprudence. DECS,
however, is not without remedy. The government can expropriate at any time the
Donated Site, paying just compensation to respondents.

WHEREFORE, we DENY the petition. The Decision dated 25 September 2000

and the Resolution dated 29 December 2000 of the Court of Appeals in CA-G.R.
CV No. 43929 are AFFIRMED.
 [G.R. No. 150905. September 23, 2003]
CITIBANK, N.A. MASTERCARD, petitioner, vs. EFREN S.
TEODORO, respondent.
DECISION
PANGANIBAN, J.:
Before secondary evidence may be admitted to prove the contents of
original documents, the offeror must prove the due execution and the subsequent
loss or unavailability of the original.
The Case
The Petition for Review[1] before us assails the July 31, 2001 Decision[2] and
the November 22, 2001 Resolution[3] of the Court of Appeals (CA) in CA-GR SP
No. 62891.The dispositive portion of the challenged Decision reads as follows:
WHEREFORE, premises considered, the Petition is GRANTED; and the Decisions of
the trial courts are hereby REVERSED and SET ASIDE. No costs.[4]
The assailed Resolution denied petitioners Motion for Reconsideration.
The Facts
Petitioner operates a credit card system through which it extends credit
accommodations to its cardholders for the purchase of goods and services from
its member establishments. The purchases are later on paid for by cardholders
upon receipt of the billings or statements of account from the
company. Respondent Efren S. Teodoro was one such cardholder. On
December 14, 1990, he applied for membership with petitioner. After his
application was approved, he was issued Citibank, N.A. Mastercard No. 5423-
3920-4457-7009.
Under the terms and conditions governing the use of the Citibank credit
card, the cardholder undertakes to pay all the purchases made using the card
within the period indicated on the statement of account or within thirty (30) days
from the date or dates of its use. Charges that remain unpaid within the period
fixed in the monthly statement of account shall earn interest at the rate of 3.5
percent per month plus a penalty fee equivalent to 5 percent of the amount due
for every month or even a fraction of a months delay.
Respondent made various purchases through his credit card. Accordingly,
he was billed by petitioner for those purchases, for which he tendered various
payments.
Petitioner claims that as of January 20, 1995, the obligations of respondent
stood at P191,693.25, inclusive of interest and service charges. Several times it
demanded payment from him, but he refused to pay, claiming that the amount
demanded did not correspond to his actual obligations. His refusal prompted
petitioner to file a Complaint for collection on January 25, 1996 before the
Regional Trial Court (RTC) of Makati City. The case was docketed as Civil Case
No. 96-092 and raffled to Branch 133.
The RTC, in an Order dated April 23, 1996, dismissed the Complaint for
lack of jurisdiction over the amount involved. The case was then transferred to
the Metropolitan Trial Court (MTC) of Makati City, where it was docketed as Civil
Case No. 51586 and raffled to Branch 66.
During the trial, petitioner presented several sales invoices or charge slips,
which added up to only P24,388.36. Although mere photocopies of the originals,
the invoices were marked in evidence as Exhibits F to F-4. Because all these
copies appeared to bear the signatures of respondent, the trial court deemed
them sufficient proof of his purchases with the use of the credit card. Accordingly,
the MTC in its July 25, 2000 Decision[5] ordered him to pay petitioner the amount
of P24,388.36 plus interest and penalty fee. The material portion of the Decision
reads:
[Petitioner] is claiming that [respondent] made use of its credit card. And as of January
20, 1995, [respondents] obligation to [petitioner] ballooned to the sum of P191,693.25.
This is clear according to [petitioner] as shown by the Statement of Accounts.
To the mind of this Court, the Statement of Account alone will not prove that
[respondent] has an outstanding obligation to [petitioner] in the amount of
P191,693.95. This must be substantiated by the Sales Invoices which unearthed the
purchases made by [respondent] when he availed himself of the credit card of
[petitioner].
While it is true that [petitioner] has offered the Sales Invoices (Exhibits F, F-1, F-4) to
show the purchases made by [respondent], it is equally true also that adding all the
amount in said invoices, the sum of P191,693.95 which according to [petitioner] is the
outstanding obligation of [respondent], is hardly met. [Petitioner] even admitted that it
could not produce all the invoices. Without the other Sales Invoices, there is a cloud of
doubt hovering over the claim of [petitioner] to [respondent].
In fact, summing up all the amount[s] indicated in the aforesaid Sales Invoices the fact
that the [respondent] has incurred to [petitioner] an obligation in the amount of
P24,388.36 as a result of the formers availment of the credit card of the latter.
It is elementary procedure that [petitioner] must prove [its] case with preponderance of
evidence. Without all the other Sales Invoices to uncover the purchases made by
[respondent] when he used the credit card of [petitioner], it is undeniable x x x that
[petitioner] is caught in the web of doubt with respect to the accuracy of its claim to the
[respondent].
WHEREFORE, premises considered, this Court hereby renders judgment as follows:
1. Ordering [respondent] to pay [petitioner] P24,388.36 with an interest of 3.5% and a
penalty fee equivalent to another 5% of the amount due for every month due or a fraction
of a months delay starting February 21, 1995 until the entire obligation is fully paid;
2. Ordering [respondent] to pay [petitioner] 25% of any and all amounts due and payable
as agreed attorneys fees plus cost of suit.[6]
Thereafter, respondent appealed the MTC judgment to the RTC of Makati
City, where the appeal was docketed as Civil Case No. 00-1051 and raffled to
Branch 146. In its October 30, 2000 Decision,[7] the RTC affirmed the MTC
Decision in toto.
Ruling of the Court of Appeals
The focal issue of the case according to the CA was whether the
photocopies of the sales invoices or charge slips, marked as Exhibits F to F-4,
were competent proofs of the obligations of respondent. These were the only
evidence presented by petitioner that could prove the actual amount of obligation
he had incurred in favor of the former. In reversing the trial courts, the CA ruled
that this evidence was insufficient to prove any liability on respondents part.
According to Sections 3 and 5 of Rule 130 of the Rules of Court, whenever
the subject of inquiry is the content of a document, its original must be produced,
as it is the best evidence to prove such content. Secondary evidence, like the
subject photocopies, is inadmissible. It will be admissible only if the offeror
proves (a) any of the exceptions enumerated in Section 3 and (b) the conditions
for its admissibility set forth in Section 5 of Rule 130. For secondary evidence to
be admissible, there must be satisfactory proof of (1) the due execution of the
original; (2) the originals loss, destruction or unavailability that is not due to the
offerors bad faith; and (3) reasonable diligence and good faith in the search for or
attempt to produce the original.
Although petitioner was able to prove the existence of the original sales
invoices, it failed to prove their due execution or to account for their loss or
unavailability.
Hence, this Petition.[8]
Issues
Petitioner raises the following issues for our consideration:
I. Whether or not the Court of Appeals erred in reversing and setting
aside the decision of the trial courts for insufficiency of evidence to
support its findings.
II. Whether or not the Court of Appeals erred in holding that petitioner
failed to prove the due execution and the cause of the
unavailability and non-production of the charge slips marked in
evidence as Exhibits F to F-4.[9]
In brief, the main issue boils down to whether the photocopies of the sales
invoices or charge slips marked during trial as Exhibits F to F-4 are admissible in
evidence.
The Courts Ruling
The Petition has no merit.
Main Issue:
Admissibility of Photocopies
Petitioner contends that the testimony[10] of its principal witness - Mark
Hernando, assistant manager of Citibank, N.A. Mastercard -- proves the
following:
a) the existence or due execution of the original sales invoices which
sufficiently proved respondents liability of P24,388.36;
b) the loss or unavailability of the original sales invoices; and
c) petitioners reasonable diligence and good faith in the search for or
attempt to produce the originals.
It further argues that Hernando competently identified the signatures of
respondent on the sales invoices, having recognized them as identical to the
signature on the latters credit card application form.
On the other hand, respondent maintains that petitioner failed to prove the
due execution of the sales invoices. According to him, Hernando was not privy to
such execution and could not have properly or competently declared that the
signatures on the invoices and on the application form belonged to the
former. The latter was not the person before whom the application form was
signed, executed or acknowledged; he was not even present then. As to the
sales invoices and respondents alleged signatures thereon, he saw them only
after the Complaint had been filed in court or long after those invoices had been
executed. He was therefore not competent to identify the signatures.
Because Hernandez had not actually witnessed the execution of the sales
invoices and the application form, respondent concludes that petitioner failed to
observe Section 5 of Rule 130 of the Rules of Court, which provides that the
contents of the original may be proven by the testimony of witnesses.
Finally, respondent contends that the alleged loss or unavailability of the
original sales invoices was not sufficiently established. Allegedly, Hernandez had
requested the originals from Equitable Credit Card Network, Inc., but failed to
show in court that he had followed up his request as advised by another witness,
Zen Hipolito. Therefore, the requirement of reasonable diligence and good faith
in the search for or attempt to produce the originals was not satisfied, because
he had shown no proof of having followed up the request.
 The burden of proof rests upon petitioner, as plaintiff, to establish its case
based on a preponderance of evidence. It is well-settled that in civil cases, the
party that alleges a fact has the burden of proving it. [11] Petitioner failed to prove
that respondent had an obligation in the principal amount of P24,388.36,
because the photocopies of the original sales invoices it had presented in court
were inadmissible in evidence. Moreover, had they been admissible, they would
still have had little probative value.[12]
The original copies of the sales invoices are the best evidence to prove the
alleged obligation. Photocopies thereof are mere secondary evidence. As such,
they are inadmissible because petitioner, as the offeror, failed to prove any of the
exceptions provided under Section 3[13] of Rule 130 of the Rules of Court, as well
s the conditions of their admissibility. Because of the inadmissibility of the
photocopies in the absence of the originals, respondents obligation was not
established.
Section 5 of Rule 130 of the Rules of Court states:
In the present case, triplicates were produced, although the cardholder
signed the sales invoice only once.[19] During the trial, Hernandez explained that
an original copy had gone to respondent, another to the merchant, and still
another to petitioner.[20]
Each of these three copies is regarded as an original in accordance with
Section 4 (b) of Rule 130 of the Rules of Court.[21] Petitioner failed to show that
all three original copies were unavailable, and that due diligence had been
exercised in the search for them.
WHEREFORE, the Petition is DENIED. Costs against petitioner.
SO ORDERED.

SEC. 5. When original document is unavailable. When the original document has been
lost or destroyed, or cannot be produced in court, the offeror, upon proof of its execution
or existence and the cause of its unavailability without bad faith on his part, may prove its
contents by a copy, or by a recital of its contents in some authentic document, or by the
testimony of witnesses in the order stated.

Applying the above Rule to the present case, before a party is allowed to
adduce secondary evidence to prove the contents of the original sales invoices,
the offeror must prove the following: (1) the existence or due execution of the
original; (2) the loss and destruction of the original or the reason for its
nonproduction in court; and (3) on the part of the offeror, the absence of bad faith
to which the unavailability of the original can be attributed.[14] The correct order of
proof is as follows: existence, execution, loss, and contents. At the sound
discretion of the court, this order may be changed if necessary.[15]
In the present case, the existence of the original sales invoices was
established by the photocopies and the testimony of Hernandez. Petitioner,
however, failed to prove that the originals had been lost or could not be produced
in court after reasonable diligence and good faith in searching for them.
Indeed, the loss of the originals and reasonable diligence in the search for
them were conditions that were not met, because the sales invoices might have
been found by Equitable. Hernandez, testifying that he had requested the
originals from Equitable, failed to show that he had subsequently followed up the
request.[16]
Finally, when more than one original copy exists, it must appear that all of
them have been lost, destroyed, or cannot be produced in court before
secondary evidence can be given of any one. A photocopy may not be used
without accounting for the other originals.[17]
In Santos v. Santos[18] the Court upheld the pronouncement of the CA that
before the appellees therein could be allowed to adduce secondary evidence to
prove the contents of the original, they had to prove -- with the requisite quantum
of evidence -- the loss, the destruction or the unavailability of all original copies of
the document.
SEAOIL PETROLEUM CORPORATION, G.R. No. 164326
Petitioner,
Present:
YNARES-SANTIAGO, J.,
- versus - Chairperson,
AUSTRIA-MARTINEZ,
AZCUNA,*
CHICO-NAZARIO, and
NACHURA, JJ.
AUTOCORP GROUP and PAUL Y. RODRIGUEZ,
Respondents. Promulgated:
October 17, 2008
x------------------------------------------------------------------------------------x
DECISION
NACHURA, J.:
Before this Court is a Petition for Review on Certiorari under Rule 45 of the
Rules of Court assailing the Decision[1] of the Court of Appeals (CA) dated May 20, 2004
in CA-G.R. CV No. 72193, which had affirmed in toto the Decision[2] of the Regional
Trial Court (RTC) of Pasig City, Branch 157, dated September 10, 2001 in Civil Case
No. 64943.
The factual antecedents, as summarized by the CA, are as follows:
On September 24, 1994, defendant-appellant Seaoil
Petroleum Corporation (Seaoil, for brevity) purchased one unit of
ROBEX 200 LC Excavator, Model 1994 from plaintiff-appellee
Autocorp Group (Autocorp for short). The original cost of the unit
was P2,500,000.00 but was increased to P3,112,519.94 because it
was paid in 12 monthly installments up to September 30, 1995. The
sales agreement was embodied in the Vehicle Sales Invoice No. A-
0209 and Vehicle Sales Confirmation No. 258. Both documents were
signed by Francis Yu (Yu for short), president of Seaoil, on behalf of
said corporation. Furthermore, it was agreed that despite delivery of
the excavator, ownership thereof was to remain with Autocorp until
the obligation is fully settled. In this light, Seaoils contractor, Romeo
Valera, issued 12 postdated checks. However, Autocorp refused to
accept the checks because they were not under Seaoils name. Hence,
Yu, on behalf of Seaoil, signed and issued 12 postdated checks
for P259,376.62 each with Autocorp as payee.
The excavator was subsequently delivered on September
26, 1994 by Autocorp and was received by Seaoil in its depot in
Batangas.
The relationship started to turn sour when the first check
bounced. However, it was remedied when Seaoil replaced it with a
good check. The second check likewise was also good when
presented for payment. However, the remaining 10 checks were not
honored by the bank since Seaoil requested that payment be stopped.
It was downhill from thereon.
Despite repeated demands, Seaoil refused to pay the
remaining balance of P2,593,766.20. Hence, on January 24, 1995,
Autocorp filed a complaint for recovery of personal property with
damages and replevin in the Regional Trial Court of Pasig. The trial
court ruled for Autocorp. Hence, this appeal.
Seaoil, on the other hand, alleges that the transaction is not
as simple as described above. It claims that Seaoil and Autocorp were
only utilized as conduits to settle the obligation of one foreign entity
named Uniline Asia (herein referred to as Uniline), in favor of
another foreign entity, Focus Point International, Incorporated (Focus
for short). Paul Rodriguez (Rodriguez for brevity) is a stockholder
and director of Autocorp. He is also the owner of Uniline. On the
other hand, Yu is the president and stockholder of Seaoil and is at the
same time owner of Focus. Allegedly, Uniline chartered MV Asia
Property (sic) in the amount of $315,711.71 from its owner Focus.
Uniline was not able to settle the said amount. Hence, Uniline,
through Rodriguez, proposed to settle the obligation through
conveyance of vehicles and heavy equipment. Consequently, four
units of Tatamobile pick-up trucks procured from Autocorp were
conveyed to Focus as partial payment. The excavator in controversy
was allegedly one part of the vehicles conveyed to Focus. Seaoil
claims that Rodriguez initially issued 12 postdated checks in favor of
Autocorp as payment for the excavator. However, due to the fact that
it was company policy for Autocorp not to honor postdated checks
issued by its own directors, Rodriguez requested Yu to issue 12
PBCOM postdated checks in favor of Autocorp. In turn, said checks
would be funded by the corresponding 12 Monte de Piedad postdated
checks issued by Rodriguez. These Monte de Piedad checks were
postdated three days prior to the maturity of the PBCOM checks.
Seaoil claims that Rodriguez issued a stop payment order
on the ten checks thus constraining the former to also order a stop
payment order on the PBCOM checks.
 In short, Seaoil claims that the real transaction is that
Uniline, through Rodriguez, owed money to Focus. In lieu of
payment, Uniline instead agreed to convey the excavator to Focus.
This was to be paid by checks issued by Seaoil but which in turn
were to be funded by checks issued by Uniline. x x x[3]
As narrated above, respondent Autocorp filed a Complaint for Recovery of
Personal Property with Damages and Replevin[4] against Seaoil before the RTC of Pasig
City. In its September 10, 2001 Decision, the RTC ruled that the transaction between
Autocorp and Seaoil was a simple contract of sale payable in installments. [5] It also held
that the obligation to pay plaintiff the remainder of the purchase price of the excavator
solely devolves on Seaoil. Paul Rodriguez, not being a party to the sale of the excavator,
could not be held liable therefor. The decretal portion of the trial courts Decision reads,
thus:
WHEREFORE, judgment is hereby rendered in favor of
plaintiff Autocorp Group and against defendant Seaoil Petroleum
Corporation which is hereby directed to pay plaintiff:
- P2,389,179.23 plus 3% interest
from the time of judicial demand until
full payment; and
- 25% of the total amount due as
attorneys fees and cost of litigation.
The third-party complaint filed by defendant Seaoil
Petroleum Corporation against third-party defendant Paul Rodriguez
is hereby DISMISSED for lack of merit.
SO ORDERED.
Seaoil filed a Petition for Review before the CA. In its assailed Decision, the
CA dismissed the petition and affirmed the RTCs Decision in toto.[6] It held that the
transaction between Yu and Rodriguez was merely verbal. This cannot alter the sales
contract between Seaoil and Autocorp as this will run counter to the parol evidence rule
which prohibits the introduction of oral and parol evidence to modify the terms of the
contract. The claim that it falls under the exceptions to the parol evidence rule has not
been sufficiently proven. Moreover, it held that Autocorps separate corporate personality
cannot be disregarded and the veil of corporate fiction pierced. Seaoil was not able to
show that Autocorp was merely an alter ego of Uniline or that both corporations were
utilized to perpetrate a fraud. Lastly, it held that the RTC was correct in dismissing the
third-party complaint since it did not arise out of the same transaction on which the
plaintiffs claim is based, or that the third partys claim, although arising out of another
transaction, is connected to the plaintiffs claim. Besides, the CA said, such claim may be
enforced in a separate action.
Seaoil now comes before this Court in a Petition for Review raising the
following issues:
I
Whether or not the Court of Appeals erred in partially applying the
parol evidence rule to prove only some terms contained in one
portion of the document but disregarded the rule with respect to
another but substantial portion or entry also contained in the same
document which should have proven the true nature of the transaction
involved.
II
Whether or not the Court of Appeals gravely erred in its judgment
based on misapprehension of facts when it declared absence of facts
which are contradicted by presence of evidence on record.
III
Whether or not the dismissal of the third-party complaint would have
the legal effect of res judicata as would unjustly preclude petitioner
from enforcing its claim against respondent Rodriguez (third-party
defendant) in a separate action.
IV
Whether or not, given the facts in evidence, the lower courts should
have pierced the corporate veil.
The Petition lacks merit. We sustain the ruling of the CA.
We find no fault in the trial courts appreciation of the facts of this case. The
findings of fact of the trial court are conclusive upon this Court, especially when affirmed
by the CA. None of the exceptions to this well-settled rule has been shown to exist in this
case.
Petitioner does not question the validity of the vehicle sales invoice but merely
argues that the same does not reflect the true agreement of the parties.
However, petitioner only had its bare testimony to back up the alleged arrangement with
Rodriguez.
The Monte de Piedad checks the supposedly clear and obvious link[7] between
the documentary evidence and the true transaction between the parties are equivocal at
best. There is nothing in those checks to establish such link. Rodriguez denies that there
is such an agreement.
 Unsubstantiated testimony, offered as proof of verbal agreements which tends
to vary the terms of a written agreement, is inadmissible under the parol evidence rule. [8]
Rule 130, Section 9 of the Revised Rules on Evidence embodies the parol
evidence rule and states:
SEC. 9. Evidence of written agreements.When the terms of an
agreement have been reduced to writing, it is considered as
containing all the terms agreed upon and there can be, between the
parties and their successors-in-interest, no evidence of such terms
other than the contents of the written agreement.
However, a party may present evidence to modify, explain or add to
the terms of the written agreement if he puts in issue in his pleading:
(a) An intrinsic ambiguity, mistake or imperfection in the written
agreement;
(b) The failure of the written agreement to express the true intent and
agreement of the parties thereto;
(c) The validity of the written agreement; or
(d) The existence of other terms agreed to by the parties or their
successors-in-interest after the execution of the written agreement.
The term "agreement" includes wills.
The parol evidence rule forbids any addition to, or contradiction of, the terms
of a written agreement by testimony or other evidence purporting to show that different
terms were agreed upon by the parties, varying the purport of the written
contract.[9]
This principle notwithstanding, petitioner would have the Court rule that this
case falls within the exceptions, particularly that the written agreement failed to express
the true intent and agreement of the parties. This argument is untenable.
Although parol evidence is admissible to explain the meaning of a contract, it
cannot serve the purpose of incorporating into the contract additional contemporaneous
conditions which are not mentioned at all in the writing unless there has been fraud or
mistake.[10] Evidence of a prior or contemporaneous verbal agreement is generally not
admissible to vary, contradict or defeat the operation of a valid contract.[11]
The Vehicle Sales Invoice[12] is the best evidence of the transaction. A sales
invoice is a commercial document. Commercial documents or papers are those used by
merchants or businessmen to promote or facilitate trade or credit
transactions.[13] Business forms, e.g., order slip, delivery charge invoice and the like, are
commonly recognized in ordinary commercial transactions as valid between the parties
and, at the very least, they serve as an acknowledgment that a business transaction has in
fact transpired.[14] These documents are not mere scraps of paper bereft of probative
value, but vital pieces of evidence of commercial transactions. They are written
memorials of the details of the consummation of contracts.[15]
The terms of the subject sales invoice are clear. They show that Autocorp sold
to Seaoil one unit Robex 200 LC Excavator paid for by checks issued by one Romeo
Valera. This does not, however, change the fact that Seaoil Petroleum Corporation, as
represented by Yu, is the customer or buyer. The moment a party affixes his or her
signature thereon, he or she is bound by all the terms stipulated therein and is subject to
all the legal obligations that may arise from their breach. [16]
Oral testimony on the alleged conditions, coming from a party who has an
interest in the outcome of the case, depending exclusively on human memory, is not as
reliable as written or documentary evidence.[17]
Hence, petitioners contention that the document falls within the exception to
the parol evidence rule is untenable. The exception obtains only where the written
contract is so ambiguous or obscure in terms that the contractual intention of the parties
cannot be understood from a mere reading of the instrument. In such a case, extrinsic
evidence of the subject matter of the contract, of the relations of the parties to each other,
and of the facts and circumstances surrounding them when they entered into the contract
may be received to enable the court to make a proper interpretation of the instrument. [18]
Even assuming there is a shred of truth to petitioners contention, the same
cannot be made a basis for holding respondents liable therefor.
As pointed out by the CA, Rodriguez is a person separate and independent from
Autocorp. Whatever obligations Rodriguez contracted cannot be attributed to
Autocorp[19] and vice versa. In fact, the obligation that petitioner proffers as its defense
under the Lease Purchase Agreement was not even incurred by Rodriguez or by Autocorp
but by Uniline.
The Lease Purchase Agreement[20] clearly shows that the parties thereto are two
corporations not parties to this case: Focus Point and Uniline. Under this Lease Purchase
Agreement, it is Uniline, as lessee/purchaser, and not Rodriguez, that incurred the debt to
Focus Point. The obligation of Uniline to Focus Point arose out of a transaction
completely different from the subject of the instant case.
It is settled that a corporation has a personality separate and distinct from its
individual stockholders or members, and is not affected by the personal rights,
obligations and transactions of the latter.[21] The corporation may not be held liable for
the obligations of the persons composing it, and neither can its stockholders be held liable
for its obligation.[22]
Of course, this Court has recognized instances when the corporations separate
personality may be disregarded. However, we have also held that the same may only be
done in cases where the corporate vehicle is being used to defeat public convenience,
justify wrong, protect fraud, or defend crime.[23] Moreover, the wrongdoing must be
clearly and convincingly established. It cannot be presumed.[24]
 To reiterate, the transaction under the Vehicle Sales Invoice is separate and assigned the same to its contractor for the construction of its depot in Batangas. [32] Hence,
distinct from that under the Lease Purchase Agreement. In the former, it is Seaoil that Seaoil has already enjoyed the benefit of the transaction even as it has not complied with
owes Autocorp, while in the latter, Uniline incurred obligations to Focus. There was its obligation. It cannot be permitted to unjustly enrich itself at the expense of another.
never any allegation, much less any evidence, that Autocorp was merely an alter ego of
Uniline, or that the two corporations separate personalities were being used as a means to WHEREFORE, the foregoing premises considered, the Petition is hereby DENIED.
perpetrate fraud or wrongdoing. The Decision of the Court of Appeals dated May 20, 2004 in CA-G.R. CV No. 72193
is AFFIRMED.
Moreover, Rodriguez, as stockholder and director of Uniline, cannot be held
personally liable for the debts of the corporation, which has a separate legal personality
of its own. While Section 31 of the Corporation Code[25] lays down the exceptions to the
rule, the same does not apply in this case. Section 31 makes a director personally liable
for corporate debts if he willfully and knowingly votes for or assents to patently unlawful
acts of the corporation. Section 31 also makes a director personally liable if he is guilty of
gross negligence or bad faith in directing the affairs of the corporation.[26] The bad faith
or wrongdoing of the director must be established clearly and convincingly. Bad faith is
never presumed.[27]

The burden of proving bad faith or wrongdoing on the part of Rodriguez was,
on petitioner, a burden which it failed to discharge. Thus, it was proper for the trial court
to have dismissed the third-party complaint against Rodriguez on the ground that he was
not a party to the sale of the excavator.

Rule 6, Section 11 of the Revised Rules on Civil Procedure defines a third-

party complaint as a claim that a defending party may, with leave of court, file against a
person not a party to the action, called the third-party defendant, for contribution,
indemnity, subrogation or any other relief, in respect of his opponents claim.

The purpose of the rule is to permit a defendant to assert an independent claim

against a third party which he, otherwise, would assert in another action, thus preventing
multiplicity of suits.[28] Had it not been for the rule, the claim could have been filed
separately from the original complaint.[29]

Petitioners claim against Rodriguez was fully ventilated in the proceedings

before the trial court, tried and decided on its merits. The trial courts ruling operates
as res judicata against another suit involving the same parties and same cause of action.
This is rightly so because the trial court found that Rodriguez was not a party to the sale
of the excavator. On the other hand, petitioner Seaoils liability has been successfully
established by respondent.

A last point. We reject Seaoils claim that the ownership of the subject
excavator, having been legally and completely transferred to Focus Point International,
Inc., cannot be subject of replevin and plaintiff [herein respondent Autocorp] is not
legally entitled to any writ of replevin.[30] The claim is negated by the sales invoice which
clearly states that [u]ntil after the vehicle is fully paid inclusive of bank clearing time, it
remains the property of Autocorp Group which reserves the right to take possession of
said vehicle at any time and place without prior notice.[31]

Considering, first, that Focus Point was not a party to the sale of the excavator
and, second, that Seaoil indeed failed to pay for the excavator in full, the same still
rightfully belongs to Autocorp. Additionally, as the trial court found, Seaoil had already
 FIRST DIVISION
[G.R. No. 80505 : December 4, 1990.]
192 SCRA 28
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MARIO TANDOY
y LIM, Defendant-Appellant.
DECISION
CRUZ, J.:
The decision of the Regional Trial Court of Makati, Branch 133 dated October 13,
1987, convicting Mario Tandoy of the crime of violation of Art. II, Sec. 4 of Rep.
Act No. 6425 known as the Dangerous Drugs Act of 1972, is before us on
appeal.
The information against the accused-appellant read as follows:
That on or about the 27th day of May 1986, in the Municipality of Makati, Metro
Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-
named accused without being authorized by law, did then and there willfully,
unlawfully and feloniously sell eight (8) pieces of dried marijuana flowering tops,
two (2) pieces of dried marijuana flowering tops and crushed dried marijuana
flowering tops, which are prohibited drug, for and in consideration of P20.00.
Upon arraignment, Tandoy entered a plea of not guilty. After trial, Judge
Buenaventura J. Guerrero rendered a decision the dispositive portion of which
declared:
WHEREFORE, the Court finds Mario Tandoy y Lim guilty beyond
reasonable doubt of violation of Sec. 4, Art. II, Rep. Act No. 6425, as
amended, and is hereby sentenced to life imprisonment and to pay a
fine of P20,000.00 and cost.: nad
The marijuana confiscated in this case is declared confiscated and
forfeited and ordered turned over to the Dangerous Drugs Board for
proper disposal.
SO ORDERED.
The accused-appellant raises the following assignment of errors in this appeal:
1. The Court a quo erred in finding accused guilty beyond reasonable
doubt of the crime charged despite lack of evidence to prove that he
sold marijuana to the poseur-buyer.
2. The Court a quo erred in admitting in evidence against the accused
Exh. "E-2-A" which is merely a xerox copy of the P10.00 bill allegedly
used as buy-bust money.
The evidence of the prosecution may be summarized as follows:
On May 27, 1986, at about 3:30 p.m. Lt. Salido, Jr. of the Makati Police Station
dispatched Pfc. Herino de la Cruz, and Detectives Pablo R. Singayan, Nicanor
Candolesas, Luisito de la Cruz, Estanislao Dalumpines, Antonio Manalastas and
Virgilio Padua to conduct a buy-bust operation at Solchuaga St., Barangay
Singkamas, Makati.
The target area was a store along the said street, and Singayan was to pose as
the buyer. He stood alone near the store waiting for any pusher to approach. The
other members of the team strategically positioned themselves. Soon, three men
approached Singayan. One of them was the accused-appellant, who said without
preamble: "Pare, gusto mo bang umiskor?" Singayan said yes. The exchange
was made then and there — two rolls/pieces of marijuana for one P10.00 and
two P5.00 bills marked ANU (meaning Anti-Narcotics Unit).
The team then moved in and arrested Tandoy. Manalastas and Candolesas
made a body search of the accused-appellant and took from him the marked
money, as well as eight more rolls/foils of marijuana and crushed leaves.: nad
The arresting officers brought Tandoy to the Office of the Anti-Narcotics Unit,
Makati Police Station, for investigation by Detective Marvin Pajilan. The accused-
appellant chose to remain silent after having been informed of his constitutional
rights.
These events were narrated under oath by De la Cruz, Singayan and Pajilan. 1
Microscopic, chemical and chromotographic examination was performed on the
confiscated marijuana by Raquel P. Angeles, forensic chemist of the National
Bureau of Investigation, who later testified that the findings were positive. The
marijuana was offered as an exhibit. 2
As might be expected, the accused-appellant had a different story. His testimony
was that from 1:30 to 4:00 p.m. of the day in question, he was playing "cara y
cruz" with 15 other persons along Solchuaga St. when somebody suddenly said
that policemen were making arrests. The players grabbed the bet money and
scampered. However, he and a certain Danny (another "cara y cruz" player)
were caught and taken to the Narcotics Command headquarters in Makati. There
they were mauled and warned that if they did not point to their fellow pushers,
they would rot in jail. The accused-appellant denied he had sold marijuana to
Singayan and insisted the bills taken from him were the bet money he had
grabbed at the "cara y cruz" game. 3
The trial court, which had the opportunity to observe the demeanor of the
witnesses and to listen to their respective testimonies, gave more credence to
the statements of the arresting officers. Applying the presumption that they had
performed their duties in a regular manner, it rejected Tandoy's uncorroborated
allegation that he had been manhandled and framed. Tandoy had not submitted
sufficient evidence of his charges, let alone his admission that he had no quarrel
with the peace officers whom he had met only on the day of his arrest.
In People v. Patog, 4 this Court held:
When there is no evidence and nothing to indicate the principal witness for the
prosecution was actuated by improper motives, the presumption is that he was
not so actuated and his testimony is entitled to full faith and credit.
Tandoy submits that "one will not sell this prohibited drug to another who is a
total stranger until the seller is certain of the identity of the buyer."
The conjecture must be rejected.: nad
In People v. Paco, 5 this Court observed:
long as the marijuana actually sold by the accused-appellant had been submitted
as an exhibit, the failure to produce the marked money itself would not constitute
a fatal omission.
We are convinced from the evidence on record that the prosecution has
overcome the constitutional presumption of innocence in favor of the accused-
appellant with proof beyond reasonable doubt of his guilt. He must therefore
suffer the penalty prescribed by law for those who would visit the scourge of drug
addiction upon our people.

Drug-pushing when done on a small level as in this case belongs to that class of WHEREFORE, the appeal is DISMISSED and the challenged decision
crimes that may be committed at anytime and at any place. After the offer to buy AFFIRMED in toto, with costs against the accused-appellant.: nad
is accepted and the exchange is made, the illegal transaction is completed in a SO ORDERED
few minutes. The fact that the parties are in a public place and in the presence of
other people may not always discourage them from pursuing their illegal trade as
these factors may even serve to camouflage the same. Hence, the Court has
sustained the conviction of drug pushers caught selling illegal drugs in a billiard
hall (People v. Rubio, G.R. No. 66875, June 19, 1986, 142 SCRA 329; People v.
Sarmiento, G.R. No. 72141, January 12, 1987, 147 SCRA 252), in front of a store
(People vs. Khan, supra) along a street at 1:45 p.m. (People v. Toledo, G.R. No.
67609, November 22, 1985, 140 SCRA 259), and in front of a house (People v.
Policarpio, G.R. No. 69844, February 23, 1988).
As the Court has also held, "What matters is not an existing familiarity between
the buyer and the seller but their agreement and the acts constituting the sale
and delivery of the marijuana leaves." 6
Under the second assigned error, the accused-appellant invokes the best
evidence rule and questions the admission by the trial court of the xerox copy
only of the marked P10.00 bill.
The Solicitor General, in his Comment, correctly refuted that contention thus:
This assigned error centers on the trial court's admission of the P10.00 bill
marked money (Exh. E-2-A) which, according to the appellant, is excluded under
the best evidence rule for being a mere xerox copy. Apparently, appellant
erroneously thinks that said marked money is an ordinary document falling under
Sec. 2, Rule 130 of the Revised Rules of Court which excludes the introduction
of secondary evidence except in the five (5) instances mentioned therein.:-cralaw
The best evidence rule applies only when the contents of the document are the
subject of inquiry. Where the issue is only as to whether or not such document
was actually executed, or exists, or in the circumstances relevant to or
surrounding its execution, the best evidence rule does not apply and testimonial
evidence is admissible. (Cf. Moran, op. cit., pp. 76-77; 4 Martin, op. cit., p. 78.)
Since the aforesaid marked money was presented by the prosecution solely for
the purpose of establishing its existence and not its contents, other
substitutionary evidence, like a xerox copy thereof, is therefore admissible
without the need of accounting for the original.
Moreover, the presentation at the trial of the "buy-bust money" was not
indispensable to the conviction of the accused-appellant because the sale of the
marijuana had been adequately proved by the testimony of the police officers. So
G.R. No. L-35366 August 5, 1931
THE PROVINCIAL FISCAL OF PAMPANGA, petitioner,
vs.
HERMOGENES REYES, Judge of First Instance of Pampanga, and ANDRES
GUEVARRA, respondents.
Provincial Fiscal Daza in his own behalf.
Monico R. Mercado for respondent judge.
Francisco Lazatin for respondent Guevarra.
VILLAMOR, J.:
The petitioner prays for a writ of mandamus to compel the respondent judge to admit
Exhibits A, B, C, and D (attached to the petition), as evidence for the prosecution in criminal
cases Nos. 4501 and 4502 of the Court of First Instance of Pampanga.
The provincial fiscal of Pampanga filed two informations for libel against Andres Guevarra.
The informations alleged that the defendant, with malicious intent, published on page 9 of
the weekly paper Ing Magumasid in its issue of July 13, 1930, a squib in verse, of which a
translation into Spanish was included therein, intended to impeach the honesty, integrity,
and reputation of Clemente Dayrit (information in criminal cause No. 4501) and of Mariano
Nepomuceno (information in criminal cause No. 4502).
The defendant demurred on the ground of duplicity of informations, he having published
only one libelous article in the Ing Magumasid for July 13, 1930. The court overruled the
demurrer.
A joint trial was held of criminal cases Nos. 4501 and 4502. The fiscal attempted to present
as evidence for the prosecution, the aforementioned Exhibits A, B, C, and D, which are
copies of the Ing Magumasid containing the libelous article with the innuendo, another
article in the vernacular published in the same weekly, and its translation into Spanish.
Counsel for the defendant objected to this evidence, which objection was sustained by the
court.
The respondents answered the petition for mandamus, praying for its dismissal with costs
against the petitioner.
At the hearing of this case, both parties appeared and moved that they be allowed to
present memoranda in lieu of an oral argument, which memoranda are in the record.
The petitioner contends that the exhibits in question are the best evidence of the libel, the
subject matter of the information, and should therefore be admitted; while the respondents
maintain that, inasmuch as the libelous articles were not quoted in the information, said
evidence cannot be admitted without amending the information. The prosecution asked for
an amendment to the information, but the court denied the petition on the ground that it
would impair the rights of the defendant, holding that the omission of the libelous article in
the original was fatal to the prosecution.
The first question raised here is whether an information charging a libel published in an
unofficial language, without including a copy of the libelous article, but only a translation
into Spanish, is valid or not. It is true that in United States vs. Eguia and Lozano (38 Phil.,
857), it was stated: "The general rule is that the complaint or information for libel must set
out the particular defamatory words as published, and a statement of their substance and
effect is usually considered insufficient." But this general rule does not exclude certain
exceptions, such as, cases where the libel is published in a non-official language. "When
the defamation has been published in a foreign tongue, it is proper, and in general,
necessary, to set out the communication as it was originally made, with an exact translation
into English; and if from the translation no cause of action appears, it is immaterial that the
foreign words were actionable. In some jurisdictions, however, under the influence of the
liberality of laws on practice, it is held unnecessary to set out the communication in the
foreign language in which it is alleged to have been published, so long as the foreign
publication is alleged, with an English translation attached." (37 C. J., 27, sec. 336.)
If the libelous article had been published in one of our official languages, English or
Spanish, it would have been necessary to follow the general rule; but since the article in
question was published in the Pampango dialect, it is sufficient to insert a Spanish
translation in the information. The justice of this exception to the general rule becomes
more evident if we consider a libelous article published, for instance, in Moro or Chinese,
who use characters different from our own.
The second question refers to the admissibility of the aforesaid exhibits. The general rules
regarding the admissibility of evidence are applicable to cases of libel or slander. The
evidence must be relevant, and not hearsay. (37 C.J., 151, sec. 688.) This being so, the
rule of procedure which requires the production of the best evidence, is applicable to the
present case. And certainly the copies of the weekly where the libelous article was
published, and its translation, constitute the best evidence of the libel charged. The
newspaper itself is the best evidence of an article published in it. (Bond vs. Central Bank of
Georgia, 2 Ga., 92.).
The respondent judge undoubtedly has discretion to admit or reject the evidence offered by
the fiscal; but in the instant case his refusal to admit such evidence amounts to an abuse of
that discretion, which may be controlled by this court by means of mandamus proceedings.
In so far as the jurisdiction of this court is concerned, we believe the doctrine is applicable
which was held in Orient Insurance Co. vs. Revilla and Teal Motor Co. (54 Phil., 919),
namely, that the Supreme Court has jurisdiction to entertain an application for a writ of
mandamus to compel a Court of First Instance to permit the attorney of a litigant to
examine the entire written communication, when part of the same has been introduced in
evidence by the other party.
Wherefore, the writ prayed for against the respondent judge of the Court of First Instance of
Pampanga should be issued, requiring him to admit Exhibits A, B, C, and D, in question in
criminal cases Nos. 4501 and 4502 of that court, and it is so ordered, without special
pronouncement of costs.
Avanceña, C.J., Johnson, Street, Malcolm, Romualdez, Villa-Real and Imperial, JJ.,
concur.
G.R. No. L-21438 September 28, 1966
AIR FRANCE, petitioner,
vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF
APPEALS, respondents.
Lichauco, Picazo and Agcaoili for petitioner.
Bengzon Villegas and Zarraga for respondent R. Carrascoso.
SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent
Rafael Carrascoso P25,000.00 by way of moral damages; P10,000.00 as
exemplary damages; P393.20 representing the difference in fare between first
class and tourist class for the portion of the trip Bangkok-Rome, these various
amounts with interest at the legal rate, from the date of the filing of the complaint
until paid; plus P3,000.00 for attorneys' fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on
Carrascoso's plane ticket from P393.20 to P383.10, and voted to affirm the
appealed decision "in all other respects", with costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence
of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino
pilgrims that left Manila for Lourdes on March 30, 1958.
On March 28, 1958, the defendant, Air France, through its authorized
agent, Philippine Air Lines, Inc., issued to plaintiff a "first class" round
trip airplane ticket from Manila to Rome. From Manila to Bangkok,
plaintiff travelled in "first class", but at Bangkok, the Manager of the
defendant airline forced plaintiff to vacate the "first class" seat that he
was occupying because, in the words of the witness Ernesto G. Cuento,
there was a "white man", who, the Manager alleged, had a "better right"
to the seat. When asked to vacate his "first class" seat, the plaintiff, as
was to be expected, refused, and told defendant's Manager that his seat
would be taken over his dead body; a commotion ensued, and,
according to said Ernesto G. Cuento, "many of the Filipino passengers
got nervous in the tourist class; when they found out that Mr.
Carrascoso was having a hot discussion with the white man [manager],
they came all across to Mr. Carrascoso and pacified Mr. Carrascoso to
give his seat to the white man" (Transcript, p. 12, Hearing of May 26,
1959); and plaintiff reluctantly gave his "first class" seat in the plane. 3
1. The trust of the relief petitioner now seeks is that we review "all the
findings" 4 of respondent Court of Appeals. Petitioner charges that respondent
court failed to make complete findings of fact on all the issues properly laid
before it. We are asked to consider facts favorable to petitioner, and then, to
overturn the appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be
rendered by any court of record without expressing therein clearly and distinctly
the facts and the law on which it is based". 5 This is echoed in the statutory
demand that a judgment determining the merits of the case shall state "clearly
and distinctly the facts and the law on which it is based"; 6 and that "Every
decision of the Court of Appeals shall contain complete findings of fact on all
issues properly raised before it". 7
A decision with absolutely nothing to support it is a nullity. It is open to direct
attack. 8 The law, however, solely insists that a decision state the "essential
ultimate facts" upon which the court's conclusion is drawn. 9 A court of justice is
not hidebound to write in its decision every bit and piece of evidence 10 presented
by one party and the other upon the issues raised. Neither is it to be burdened
with the obligation "to specify in the sentence the facts" which a party
"considered as proved". 11 This is but a part of the mental process from which the
Court draws the essential ultimate facts. A decision is not to be so clogged with
details such that prolixity, if not confusion, may result. So long as the decision of
the Court of Appeals contains the necessary facts to warrant its conclusions, it is
no error for said court to withhold therefrom "any specific finding of facts with
respect to the evidence for the defense". Because as this Court well observed,
"There is no law that so requires". 12 Indeed, "the mere failure to specify (in the
decision) the contentions of the appellant and the reasons for refusing to believe
them is not sufficient to hold the same contrary to the requirements of the
provisions of law and the Constitution". It is in this setting that in Manigque, it was
held that the mere fact that the findings "were based entirely on the evidence for
the prosecution without taking into consideration or even mentioning the
appellant's side in the controversy as shown by his own testimony", would not
vitiate the judgment. 13 If the court did not recite in the decision the testimony of
each witness for, or each item of evidence presented by, the defeated party, it
does not mean that the court has overlooked such testimony or such item of
evidence. 14 At any rate, the legal presumptions are that official duty has been
regularly performed, and that all the matters within an issue in a case were laid
before the court and passed upon by it. 15
Findings of fact, which the Court of Appeals is required to make, maybe defined
as "the written statement of the ultimate facts as found by the court ... and
essential to support the decision and judgment rendered thereon". 16They consist
of the court's "conclusions" with respect to the determinative facts in issue". 17 A
question of law, upon the other hand, has been declared as "one which does not
call for an examination of the probative value of the evidence presented by the
parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari
from a judgment of the Court of Appeals. 19 That judgment is conclusive as to the
facts. It is not appropriately the business of this Court to alter the facts or to
review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of fact of
the Court of Appeals support its judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received from
petitioner a first class ticket. But petitioner asserts that said ticket did not
represent the true and complete intent and agreement of the parties; that said
respondent knew that he did not have confirmed reservations for first class on
any specific flight, although he had tourist class protection; that, accordingly, the
issuance of a first class ticket was no guarantee that he would have a first class
ride, but that such would depend upon the availability of first class seats.
These are matters which petitioner has thoroughly presented and discussed in its
brief before the Court of Appeals under its third assignment of error, which reads:
"The trial court erred in finding that plaintiff had confirmed reservations for, and a
right to, first class seats on the "definite" segments of his journey, particularly that
from Saigon to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a
first-class ticket was no guarantee that the passenger to whom the
same had been issued, would be accommodated in the first-class
compartment, for as in the case of plaintiff he had yet to make
arrangements upon arrival at every station for the necessary first-class
reservation. We are not impressed by such a reasoning. We cannot
understand how a reputable firm like defendant airplane company could
have the indiscretion to give out tickets it never meant to honor at all. It
received the corresponding amount in payment of first-class tickets and
yet it allowed the passenger to be at the mercy of its employees. It is
more in keeping with the ordinary course of business that the company
should know whether or riot the tickets it issues are to be honored or
not.22
Not that the Court of Appeals is alone. The trial court similarly disposed of
petitioner's contention, thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can
be no question. Apart from his testimony, see plaintiff's Exhibits "A", "A-1", "B",
"B-1," "B-2", "C" and "C-1", and defendant's own witness, Rafael Altonaga,
confirmed plaintiff's testimony and testified as follows:
Q. In these tickets there are marks "O.K." From what you know, what
does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx xxx xxx
Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and
Rafael Altonaga that although plaintiff paid for, and was issued a "first class"
airplane ticket, the ticket was subject to confirmation in Hongkong. The court
cannot give credit to the testimony of said witnesses. Oral evidence cannot
prevail over written evidence, and plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and
"C-1" belie the testimony of said witnesses, and clearly show that the plaintiff was
issued, and paid for, a first class ticket without any reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga
testified that the reservation for a "first class" accommodation for the plaintiff was
confirmed. The court cannot believe that after such confirmation defendant had a
verbal understanding with plaintiff that the "first class" ticket issued to him by
defendant would be subject to confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a
few pesos in the amount refunded on Carrascoso's ticket, the decision of the
Court of First Instance was affirmed by the Court of Appeals in all other respects.
We hold the view that such a judgment of affirmance has merged the judgment of
the lower court. 24Implicit in that affirmance is a determination by the Court of
Appeals that the proceeding in the Court of First Instance was free from
prejudicial error and "all questions raised by the assignments of error and all
questions that might have been raised are to be regarded as finally adjudicated
against the appellant". So also, the judgment affirmed "must be regarded as free
from all error". 25 We reached this policy construction because nothing in the
decision of the Court of Appeals on this point would suggest that its findings of
fact are in any way at war with those of the trial court. Nor was said affirmance by
the Court of Appeals upon a ground or grounds different from those which were
made the basis of the conclusions of the trial court. 26
If, as petitioner underscores, a first-class-ticket holder is not entitled to a first
class seat, notwithstanding the fact that seat availability in specific flights is
therein confirmed, then an air passenger is placed in the hollow of the hands of
an airline. What security then can a passenger have? It will always be an easy
matter for an airline aided by its employees, to strike out the very stipulations in
the ticket, and say that there was a verbal agreement to the contrary. What if the
passenger had a schedule to fulfill? We have long learned that, as a rule, a
written document speaks a uniform language; that spoken word could be
notoriously unreliable. If only to achieve stability in the relations between
passenger and air carrier, adherence to the ticket so issued is desirable. Such is
the case here. The lower courts refused to believe the oral evidence intended to
defeat the covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there are
facts upon which the Court of Appeals predicated the finding that respondent
Carrascoso had a first class ticket and was entitled to a first class seat at
Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27 We
perceive no "welter of distortions by the Court of Appeals of petitioner's
statement of its position", as charged by petitioner. 28 Nor do we subscribe to
petitioner's accusation that respondent Carrascoso "surreptitiously took a first
class seat to provoke an issue". 29And this because, as petitioner states,
Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat
and because from Saigon I was told again to see the Manager". 30 Why, then,
was he allowed to take a first class seat in the plane at Bangkok, if he had no
seat? Or, if another had a better right to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's
trenchant claim is that Carrascoso's action is planted upon breach of contract;
that to authorize an award for moral damages there must be an averment of
fraud or bad faith;31 and that the decision of the Court of Appeals fails to make a
finding of bad faith. The pivotal allegations in the complaint bearing on this issue
are:
3. That ... plaintiff entered into a contract of air carriage with the
Philippine Air Lines for a valuable consideration, the latter acting as
general agents for and in behalf of the defendant, under which said
contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff,
First Class passage on defendant's plane during the entire duration of
plaintiff's tour of Europe with Hongkong as starting point up to and until
plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and
from Saigon to Bangkok, defendant furnished to the plaintiff First Class
accommodation but only after protestations, arguments and/or
insistence were made by the plaintiff with defendant's employees.
5. That finally, defendant failed to provide First Class passage, but
instead furnished plaintiff only Tourist Class accommodations from
Bangkok to Teheran and/or Casablanca, ... the plaintiff has
been compelled by defendant's employees to leave the First Class
accommodation berths at Bangkok after he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the
inconvenience and embarrassments brought by defendant's breach of
contract was forced to take a Pan American World Airways plane on his
return trip from Madrid to Manila.32
xxx xxx xxx
2. That likewise, as a result of defendant's failure to furnish First Class
accommodations aforesaid, plaintiff suffered inconveniences, embarrassments,
and humiliations, thereby causing plaintiff mental anguish, serious anxiety,
wounded feelings, social humiliation, and the like injury, resulting in moral
damages in the amount of P30,000.00. 33
xxx xxx xxx
The foregoing, in our opinion, substantially aver: First, That there was a contract
to furnish plaintiff a first class passage covering, amongst others, the Bangkok-
Teheran leg; Second, That said contract was breached when petitioner failed to
furnish first class transportation at Bangkok; and Third, that there was bad faith
when petitioner's employee compelled Carrascoso to leave his first class
accommodation berth "after he was already, seated" and to take a seat in the
tourist class, by reason of which he suffered inconvenience, embarrassments
and humiliations, thereby causing him mental anguish, serious anxiety, wounded
feelings and social humiliation, resulting in moral damages. It is true that there is
no specific mention of the term bad faith in the complaint. But, the inference of
bad faith is there, it may be drawn from the facts and circumstances set forth
therein. 34 The contract was averred to establish the relation between the parties.
But the stress of the action is put on wrongful expulsion.
Quite apart from the foregoing is that (a) right the start of the trial, respondent's
counsel placed petitioner on guard on what Carrascoso intended to prove: That
while sitting in the plane in Bangkok, Carrascoso was ousted by petitioner's
manager who gave his seat to a white man; 35 and (b) evidence of bad faith in the
fulfillment of the contract was presented without objection on the part of the
petitioner. It is, therefore, unnecessary to inquire as to whether or not there is
sufficient averment in the complaint to justify an award for moral damages.
Deficiency in the complaint, if any, was cured by the evidence. An amendment
thereof to conform to the evidence is not even required. 36 On the question of bad
faith, the Court of Appeals declared:
That the plaintiff was forced out of his seat in the first class
compartment of the plane belonging to the defendant Air France while
at Bangkok, and was transferred to the tourist class not only without his
consent but against his will, has been sufficiently established by plaintiff
in his testimony before the court, corroborated by the corresponding
entry made by the purser of the plane in his notebook which notation
reads as follows:
 "First-class passenger was forced to go to the tourist class
against his will, and that the captain refused to intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a
co-passenger. The captain of the plane who was asked by the manager
of defendant company at Bangkok to intervene even refused to do so. It
is noteworthy that no one on behalf of defendant ever contradicted or
denied this evidence for the plaintiff. It could have been easy for
defendant to present its manager at Bangkok to testify at the trial of the
case, or yet to secure his disposition; but defendant did neither. 37
The Court of appeals further stated —
Neither is there evidence as to whether or not a prior reservation was
made by the white man. Hence, if the employees of the defendant at
Bangkok sold a first-class ticket to him when all the seats had already
been taken, surely the plaintiff should not have been picked out as the
one to suffer the consequences and to be subjected to the humiliation
and indignity of being ejected from his seat in the presence of others.
Instead of explaining to the white man the improvidence committed by
defendant's employees, the manager adopted the more drastic step of
ousting the plaintiff who was then safely ensconsced in his rightful seat.
We are strengthened in our belief that this probably was what happened
there, by the testimony of defendant's witness Rafael Altonaga who,
when asked to explain the meaning of the letters "O.K." appearing on
the tickets of plaintiff, said "that the space is confirmed for first class.
Likewise, Zenaida Faustino, another witness for defendant, who was the
chief of the Reservation Office of defendant, testified as follows:
"Q How does the person in the ticket-issuing office know what
reservation the passenger has arranged with you?
A They call us up by phone and ask for the confirmation."
(t.s.n., p. 247, June 19, 1959)
In this connection, we quote with approval what the trial Judge has said
on this point:
Why did the, using the words of witness Ernesto G. Cuento,
"white man" have a "better right" to the seat occupied by Mr.
Carrascoso? The record is silent. The defendant airline did not
prove "any better", nay, any right on the part of the "white man"
to the "First class" seat that the plaintiff was occupying and for
which he paid and was issued a corresponding "first class"
ticket.
If there was a justified reason for the action of the defendant's
Manager in Bangkok, the defendant could have easily proven it
by having taken the testimony of the said Manager by
deposition, but defendant did not do so; the presumption is that
evidence willfully suppressed would be adverse if produced
[Sec. 69, par (e), Rules of Court]; and, under the
circumstances, the Court is constrained to find, as it does find,
that the Manager of the defendant airline in Bangkok not
merely asked but threatened the plaintiff to throw him out of the
plane if he did not give up his "first class" seat because the
said Manager wanted to accommodate, using the words of the
witness Ernesto G. Cuento, the "white man".38
It is really correct to say that the Court of Appeals in the quoted portion
first transcribed did not use the term "bad faith". But can it be doubted
that the recital of facts therein points to bad faith? The manager not only
prevented Carrascoso from enjoying his right to a first class seat; worse,
he imposed his arbitrary will; he forcibly ejected him from his seat, made
him suffer the humiliation of having to go to the tourist class
compartment - just to give way to another passenger whose right
thereto has not been established. Certainly, this is bad faith. Unless, of
course, bad faith has assumed a meaning different from what is
understood in law. For, "bad faith" contemplates a "state of mind
affirmatively operating with furtive design or with some motive of self-
interest or will or for ulterior purpose." 39
And if the foregoing were not yet sufficient, there is the express finding
of bad faith in the judgment of the Court of First Instance, thus:
The evidence shows that the defendant violated its contract of
transportation with plaintiff in bad faith, with the aggravating
circumstances that defendant's Manager in Bangkok went to
the extent of threatening the plaintiff in the presence of many
passengers to have him thrown out of the airplane to give the
"first class" seat that he was occupying to, again using the
words of the witness Ernesto G. Cuento, a "white man" whom
he (defendant's Manager) wished to accommodate, and the
defendant has not proven that this "white man" had any "better
right" to occupy the "first class" seat that the plaintiff was
occupying, duly paid for, and for which the corresponding "first
class" ticket was issued by the defendant to him.40
5. The responsibility of an employer for the tortious act of its employees need not
be essayed. It is well settled in law. 41 For the willful malevolent act of petitioner's
manager, petitioner, his employer, must answer. Article 21 of the Civil Code
says:
 ART. 21. Any person who willfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.
In parallel circumstances, we applied the foregoing legal precept; and, we held
that upon the provisions of Article 2219 (10), Civil Code, moral damages are
recoverable. 42
6. A contract to transport passengers is quite different in kind and degree from
any other contractual relation. 43 And this, because of the relation which an air-
carrier sustains with the public. Its business is mainly with the travelling public. It
invites people to avail of the comforts and advantages it offers. The contract of
air carriage, therefore, generates a relation attended with a public duty. Neglect
or malfeasance of the carrier's employees, naturally, could give ground for an
action for damages.
Passengers do not contract merely for transportation. They have a right to be
treated by the carrier's employees with kindness, respect, courtesy and due
consideration. They are entitled to be protected against personal misconduct,
injurious language, indignities and abuses from such employees. So it is, that
any rule or discourteous conduct on the part of employees towards a passenger
gives the latter an action for damages against the carrier. 44
Thus, "Where a steamship company 45 had accepted a passenger's check, it was
a breach of contract and a tort, giving a right of action for its agent in the
presence of third persons to falsely notify her that the check was worthless and
demand payment under threat of ejection, though the language used was not
insulting and she was not ejected." 46 And this, because, although the relation of
passenger and carrier is "contractual both in origin and nature" nevertheless "the
act that breaks the contract may be also a tort". 47 And in another case, "Where a
passenger on a railroad train, when the conductor came to collect his fare
tendered him the cash fare to a point where the train was scheduled not to stop,
and told him that as soon as the train reached such point he would pay the cash
fare from that point to destination, there was nothing in the conduct of the
passenger which justified the conductor in using insulting language to him, as by
calling him a lunatic," 48 and the Supreme Court of South Carolina there held the
carrier liable for the mental suffering of said passenger.1awphîl.nèt
Petitioner's contract with Carrascoso is one attended with public duty. The stress
of Carrascoso's action as we have said, is placed upon his wrongful expulsion.
This is a violation of public duty by the petitioner air carrier — a case of quasi-
delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus —
Q You mentioned about an attendant. Who is that attendant and
purser?
A When we left already — that was already in the trip — I could not help
it. So one of the flight attendants approached me and requested from
me my ticket and I said, What for? and she said, "We will note that you
transferred to the tourist class". I said, "Nothing of that kind. That is
tantamount to accepting my transfer." And I also said, "You are not
going to note anything there because I am protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel uncomfortable and you
don't have enough leg room, I stood up and I went to the pantry that
was next to me and the purser was there. He told me, "I have recorded
the incident in my notebook." He read it and translated it to me —
because it was recorded in French — "First class passenger was forced
to go to the tourist class against his will, and that the captain refused to
intervene."
Mr. VALTE —
I move to strike out the last part of the testimony of the witness because
the best evidence would be the notes. Your Honor.
COURT —
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals that the purser made
an entry in his notebook reading "First class passenger was forced to go to the
tourist class against his will, and that the captain refused to intervene" is
predicated upon evidence [Carrascoso's testimony above] which is incompetent.
We do not think so. The subject of inquiry is not the entry, but the ouster incident.
Testimony on the entry does not come within the proscription of the best
evidence rule. Such testimony is admissible. 49a
Besides, from a reading of the transcript just quoted, when the dialogue
happened, the impact of the startling occurrence was still fresh and continued to
be felt. The excitement had not as yet died down. Statements then, in this
environment, are admissible as part of the res gestae. 50 For, they grow "out of
the nervous excitement and mental and physical condition of the
declarant". 51 The utterance of the purser regarding his entry in the notebook was
spontaneous, and related to the circumstances of the ouster incident. Its
trustworthiness has been guaranteed. 52 It thus escapes the operation of the
hearsay rule. It forms part of the res gestae.

At all events, the entry was made outside the Philippines. And, by an employee
of petitioner. It would have been an easy matter for petitioner to have
contradicted Carrascoso's testimony. If it were really true that no such entry was
made, the deposition of the purser could have cleared up the matter.

We, therefore, hold that the transcribed testimony of Carrascoso is admissible in

evidence.

8. Exemplary damages are well awarded. The Civil Code gives the court ample
power to grant exemplary damages — in contracts and quasi- contracts. The
only condition is that defendant should have "acted in a wanton, fraudulent,
reckless, oppressive, or malevolent manner." 53 The manner of ejectment of
respondent Carrascoso from his first class seat fits into this legal precept. And
this, in addition to moral damages.54

9. The right to attorney's fees is fully established. The grant of exemplary

damages justifies a similar judgment for attorneys' fees. The least that can be
said is that the courts below felt that it is but just and equitable that attorneys'
fees be given. 55 We do not intend to break faith with the tradition that discretion
well exercised — as it was here — should not be disturbed.

10. Questioned as excessive are the amounts decreed by both the trial court and
the Court of Appeals, thus: P25,000.00 as moral damages; P10,000.00, by way
of exemplary damages, and P3,000.00 as attorneys' fees. The task of fixing
these amounts is primarily with the trial court. 56 The Court of Appeals did not
interfere with the same. The dictates of good sense suggest that we give our
imprimatur thereto. Because, the facts and circumstances point to the
reasonableness thereof.57

On balance, we say that the judgment of the Court of Appeals does not suffer
from reversible error. We accordingly vote to affirm the same. Costs against
petitioner. So ordered.

Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and
Castro, JJ., concur.
Bengzon, J.P., J., took no part.

G.R. No. L-28999 May 24, 1977
COMPAÑIA MARITIMA, plaintiff-appellee,
vs.
ALLIED FREE WORKERS UNION, SALVADOR T. LLUCH, MARIANO LL.
BADELLES, individually and in their capacities as President and Vice-
President, respectively of the Allied Free Workers Union, NICANOR
HALEBAS and LAURENTINO LL. BADELLES, individually and officers of
Allied Free Workers Union, defendants-appellants.
Halibas, Badelles, Padilla & Sepulveda and Vicente A. Rafael & Associates for
defendants-appellants.
Rufino J. Abadies, Francisco Obach & Jesus Quijano for appellee.
AQUINO, J.:
Antecedents. - Since the onset in 1954 of litigation between the parties herein,
this is the fifth case between them that has been elevated to this Court. The
incidents preceding the instant appeal are as follows:
On August 11, 1952 the Compañia Maritima and the Allied Free Workers Union
entered into a written contract whereby the union agreed to perform arrastre and
stevedoring work for the consignees. vessels at Iligan City. The contract was to
be effective for one month counted from August 12, 1952.
It was stipulated that the company could revoke the contract before the expiration
of the term if the union failed to render proper service. The contract could be
renewed by agreement of the parties (Exh. J).
At the time the contract was entered into, the union had just been organized. Its
primordial desire was to find work for its members. The union agreed to the
stipulation that the company would not be liable for the payment of the services
of the union "for the loading, unloading and deliveries of cargoes" and that the
compensation for such services would be paid "by the owners and consigness of
the cargoes" as "has been the practice in the port of Iligan City" (Par. 2 of Exh.
J).
The union found out later that that stipulation was oppressive and that the
company was unduly favored by that arrangement.
Under the contract, the work of the union consisted of arrastre and stevedoring
service. Arrastre, a Spanish word which refers to hauling of cargo, comprehends
the handling of cargo on the wharf or between the establishment of the
consignee or shipper and the ship's tackle. The service is usually performed by
longshoremen.
On the other hand, stevedoring refers to the handling of the cargo in the holds of
the vessel or between the ship's tackle and the holds of the vessel.
The shippers and consignees paid the union oth for the arrastre work. They
refused to pay for the stevedoring service. They claimed that the shipowner was
the one obligated to pay for the stevedoring service because the bill of lading
provided that the unloading of the cargo was at the shipowner's expense (Exh.
1).
On the other hand, the company refused to pay for the stevedoring service
because the contract (Exh. J) explicitly provided that the compensation for both
arrastre and stevedoring work should be paid by the shippers and consignees, as
was the alleged practice in Iligan City, and that the shipowner would not be liable
for the payment of such services.
Thus, the issue of whether the company should pay for the stevedoring service
became a sore point of contention between the parties. The union members
labored under the impression that they were not being compensated for their
stevedoring service as distinguished from arrastre service.
Although the arrastre and stevedoring contract (Exh. J) was disadvantageous to
the union, it did not terminate the contract because its members were in dire
need of work and work, which was not adequately compensated, was preferable
to having no work at all (204, 214-5, 226-7 tsn May 20, 1960).
Upon the expiration of the one-month period, the said contract was verbally
renewed. The company allowed the union to continue performing arrastre and
stevedoring work.
On July 23, 1954 the union sent a letter to the company requesting that it be
recognized as the exclusive bargaining unit to load and unload the cargo of its
vessels at Iligan City. The company ignored that demand. So, the union filed on
August 6, 1954 in the Court of Industrial Relations (CIR) a petition praying that it
be certified as the sole collective bargaining unit.
Despite that certification case, the company on August 24, 1954 served a written
notice on the union that, in accordance with payment of the 1952 contract, the
same would be terminated on August 31, 1954. Because of that notice, the union
on August 26, 1954 filed in the CIR charges of unfair labor practice against the
company.
On August 31, 1954 the company entered into a new stevedoring and arrastre
contract with the Iligan Stevedoring Association. On the following day,
September 1, the union members picketed the wharf and prevented the Iligan
Stevedoring Association from performing arrastre and stevedoring work. The
picket lasted for nine days.
On September 8, 1954 the company sued the union and its officers in the Court
of First Instance of Lanao for the rescission of the aforementioned 1952 contract,
to enjoin the union from interfering with the loading and unloading of the cargo,
and for the recovery of damages.
On the following day, September 9, the lower court issued ex parte a writ of
preliminary injunction after the company had posted a bond in the sum of
P20,000. A few hours lateron that same day the union was allowed to file a
counterbond. The injunction was lifted. The union members resumed their
arrastre and stevedoring work.
Later, the union assailed in a prohibition action in this Court the jurisdiction of the
trial court to entertain the action for damages, and injunction.
A majority of this Court held that the lower court had jurisdiction to issue the
injunction and to take cognizance of the damage suit filed by the company but
that the injunction was void because it was issued ex parte and the procedure
laid down in section 9(d) of Republic Act No. 875 was not followed by the trial
court (Allied Free Workers Union vs. Judge Apostol, 102 Phil. 292, 298).
After trial, the lower court rendered a decision dated December 5, 1960,
amended on January 11, 1961, (1) declaring the arrastre and stevedoring
contract terminated on August $1, 1954; (2) dismissing the union's counterclaim;
(3) ordering the union and its officers to pay solidarily to the company P520,000
as damages, with six percent interest per annum from September 9, 1954, when
the complaint. was filed; (4) permanently enjoining the union from performing any
arrastre and stevedoring work for the company at Iligan City, and (5) requiring
the union to post a supersedeas bond in the sum of P520,000 to stay execution.
The union filed a motion for reconsideration. On the other hand, the company
filed a motion for the execution pending appeal of the money judgment. It filed
another motion for the immediate issuance of a writ of injunction. That second
motion was filed in the municipal court of Iligan City in view of the absence of the
District Judge.
The municipal court issued the writ of injunction. However, this Court set it aside
because it was not an interlocutory order and no special reasons were adduced
to justify its issuance (Allied Free Workers Union vs. Judge Estipona, 113 Phil.
748).
The union on January 6, 1961 had perfected an appeal from the lower
court's original decision. It did not appeal from the amended decision. On March
24, 1962 the lower court issued an order declaring its amended decision final and
executory in view of the union's failure to appeal therefrom. The court directed
the clerk of court to issue a writ of execution. That order was assailed by the
union in a certiorari action filed in this Court. A preliminary injunction was issued
by this Court to restrain the execution of the judgment.
On May 16, 1962 this Court dissolved the injunction at the instance of the
company which had filed a counterbond. Thereupon, the 225 members of the
union yielded their ten-year old jobs to the new set of workers contracted by the
company.
The certiorari incident was decided on June 30, 1966. This Court noted that the
lower court amended its decision for the purpose of correcting certain errors and
omissions which were not substantial in character and that its amended decision
was served upon the parties after the union had perfected its appeal from the
original decision.
Under those circumstances, this Court held that the union's appeal should be
given due coarse, subject to the amendment of its record on appeal. This Court
reserved to the members of the union the right to secure restitution under
sections 2 and 5, Rule 39 of the Rules of Court (Allied Free Workers Union vs.
Estipona, L-19651, June 30, 1966,17 SCRA 513, 64 O.G. 2701).
Pursuant to that reservation, the union on December 16, 1966 filed a motion for
restitution, praying that its 225 members be restored to their jobs and that the
company be ordered to pay P 1,620,000 as damages, consisting of the lost
earnings during the four-years period from May 8, 1962 to May 8, 1966.
On the other hand, the company in its motion of January 18, 1967 reiterated its
1960 motion for the execution of the lower court's judgment as to the damages,
of P520,000 and the permanent injunction.
Later, the company called the lower court's attention to this Court's decision
dated January 31, 1967. In that decision, this Court affirmed the CIR's decision
holding that the company did not commit any unfair labor practice and reversed
the CIR's directive that a certification election be held to determine whether the
union should be the exonemtod bargaining unit. This Court held that the union
could not act as a collective bargaining unit because the union was an
independent contractor and its members were not employees of the company
(Allied Free Workers Union vs. Compañia Maritima, L-22951-2 and L-22971, 19
SCRA 258).
The lower court in its order of April 25, 1967 (1) denied the union's motion for
restitution and to stay execution of its amended decision on January 11, 1961
and (2) required the union to file a supersedeas bond in the sum of P100,000
within thirty days from notice. The bond was reduced to P50,000 in the lower
court's order of August 16, 1967. The union posted the bond on August 24,1967.
The lower court approved the union's amended record on appeal in its order of
October 6, 1967.
The union appealed directly to this Court because the amount involved exceeds
P200,000. The appeal was perfected before Republic Act No. 5440 took effect on
September 9,1968.
Other proceedings. - The company in its original complaint prayed that the union
and its officials be ordered to pay actual damages, amounting to P15,000 for the
union's failure to load and unload cargo in and from the consignees. vessels from
September 1 to 8, 1954; P50,000 as damages, due to the union's inefficiency in
performing arrastre and stevedoring work "during the latter part of the existence"
of the contract; P50,000 as moral and exemplary damages, (not supported by
any allegation in the body of the complaint) and P5,000 as attorney's Considering
(10-12, Record on Appeal).
On September 15, 1954 the company added a fourth cause ofaction to its
complaint. It alleged that by reason of the acts of harassment and obstruction
perpetrated by the union in the loading and unloading ofcargo the company
suffered additional damage in the form of lost and unrealized freight and
passenger charges in the amount of P10,000 for September 9 and 10, 1954 (66,
Record on Appeal).
On November 2, 1954 the company attached to its motion for the revival of the
injunction against the union an auditor's report dated September 15, 1954
wherein it was indicated that the company lost freight revenues amounting to
P178,579.20 during the period from January 1 to September 7, 1954 (121-143,
Record on Appeal).
On November 27, 1954 the company filed another motion for the restoration of
the injunction. In support of that motion the company attached a trip operation
report showing the unloaded cargoes on the consignees. vessels, when they
docked at Iligan City on September 14, 19, 22 and 26 and October 3 and 5,
1954, as well as the delays in their departure (157-162, Record on Appeal).
On March 5, 1955 the company added a fifth cause ofaction too its complaint. It
alleged that during the period from September 12 to December 28, 1954 it lost
freight charges on unloaded cargoes in the sum of P62,680.12, as shown in a
detailed statement, and that it incurred an estimated amount of P20,000 for
overhead expenses. for the delay in the dismissal of its vessels attributable to the
union's unsatisfactory stevedoring and arrastre work (225-229, 237-8, Record on
Appeal).
Also on March 5, 1955 the union answered the original and supplemental
complaints. It denied that its members had rendered inefficient service. It averred
that the termination of the contract was prompted by the consignees. desire to
give the work to the Iligan Stevedoring Association which the company had
allegedly organized and subsidized. The union filed a counterclaim for P200,000
as compensation for its services to the company and P500,000 as other
damages, (239-252, Record on Appeal).
On March 9, 1960 the company filed a third supplemental complaint, It alleged
that the continuation of the stevedoring and arrastre work by the union for the
company from 1955 to date had caused losses to the company at the rate of
P25,000 annually in the form of lost freight on shutout cargoes and the expenses.
for the equipment used to assist the union members in performing their work
(320-3, Record on Appeal).
Plaintiff company's evidence. - Jose C. Teves, the consignees. branch manager
at Iligan City, testified that on August 24, 1954 he terminated the arrastre and
stevedoring contract with the union (Exh. J) upon instruction of the head office.
The contract was terminated in order to avoid further losses to the company
caused by the union's inefficient service (85-86 tsn March 11, 1960).
After the termination of the contract, the members of the union allegedly
harassed the company with the help of goons. The cargoes could not be
unloaded in spite of the fact that the company had sought the protection of the
law-enforcing authorities (88). The consignees. last recourse was to go to court.
(89).
The company supposedly suffered losses as a result of the union's inefficient
service since September 1, 1954 (91). Teves hired auditors to ascertain the
losses suffered by the company during the period from January 1 to September
11, 1954.
The trial court awarded actual damages, amounting to P450,000 on the basis of
the auditor's reports, Exhibits A to I. It did not carefully examine the said exhibits.
Contrary to the trial court's impression, Exhibits B, C and D are not auditors'
reports.
The trial court did not bother to make a breakdown of the alleged damages,
totalling P450,000. The reports of the two hired accountants, Demetrio S. Jayme
and M. J. Siojo, show the following alleged damages, in the aggregate amount of
P349,245.37 (not P412,663.17, as erroneously added by the consignees.
counsel, 161,163-4 tsn March 11, 1960):
TABULATION OF ALLEGED
DAMAGES CLAIMED BY COMPAÑIA MARITIMA
their dismissal from January 1 to August 31,

(1) Freight for 74,751 bags of fertilizer 1954 as certified by the pursers of the two

allegedly booked for shipment in the vessels, Statement C, Exh. A..................... 4,407.50

company's vessels but loaded in other vessels (7) Estimated loss in freight and passenger

during the period from Jan. 1 to August 31, revenue for the period from January 1 to

1954, Statement A in Exh. A, CPA Jayme's August 31, 1954, based on 1953 freight revenue

report......................................................... P29,900.40 for the same period Statement D, Exh. A..... 100,000.00

(2) Lost freight on other shutout cargoes (8) Estimated loss in passenger fares for

for January 1 to August 31, 1954, Statement A the period from September to December 31,

in Exh. A, of CPA Jayme ......................... 4,339.64 1954, Statement D, Exh. A....................... 20,000.00

(3) Lost freight on shutout cargoes for (9) Lost freight charges from September

September 2 to 7, 1954 booked for shipment in 12 to December 28, 1954, as certified by the

M. V. Mindoro, Panay and Masterhead Knot, chief clerk of the consignees. Iligan office. Exh.

Statement B in Exh. A, CPA Jayme's report... 6,167.16 B............................................................. 62,680.12

(4) Losses sustained in voyages of M.V. (10) Estimated overhead expenses for

Panay and Mindoro in four voyages from delay of vessels in port, Exh. B................. 20,000.00

September 4 to 11, 1954, with estimates, (11) Forklift operating expenses. for 1955,

Statement B, Exh. A............................... 3,764.50 consisting of salaries and maintenance

(5) Other estimated losses for the said expenses, Exh. E- 1.................................... 5,677.54

voyages of M.V. Panay and Mindoro for the (12) Lost freight revenue for 1955, Exh. E-

same period, based on interviews of parties at 2............................................................... 17,838.78

the wharf, Statement B, Exh. A............... 10,000.00 (13) Forklift operating expenses. for 1956,

(6) Additional subsistence expenses. for the Exh. F- 1................................................... 3,520.90

M.V. Mindoro and Panay due to the delays in (14) Lost freight revenue for 1956, Exh. F-2 3,849.56

(15) Forklift operating expenses. for 1957,


Exh. G- 1................................................... 8,259.08
(16) Lost freight revenue for 1957, Exh. G-
2.................................................................... 14,538.10
(17) Forklift operating expenses. for 1958,
Exh. H-1................................................... 7,503.45
(18) Lost freight revenue for 1958, Exh. H-
2............................................................. 10,193.46
(19) Forklift operating expenses. for 1959,
Exh. I-1.................................................... 8,745.35
(20) Lost freight revenue for 1959, Exh. I-2 7,959.83
T OT A L - P349,245.37
We tabulated the alleged damages, to show that the trial court's award to the
company of P450,000 as damages, is not supported by the evidence. On the
other hand, the statement of the consignees. counsel that the damages, totalled
P412,663.17 (162- 164 tsn March 11, 1960) is wrong.
Teves, the consignees. branch manager, submitted a statement (Exh. K)
showing the alleged cost of three forklifts, 200 pieces of pallet boards, 530 pieces
of wire rope slings and two pieces of tarpaulins in the total sum of P27,215. In
that statement, he claims that the damages, to the company by reason of the
depreciation of the said items of equipment amounted to P38,835 or more than
the cost thereof.
The company's counsel, in his summary of the damages, ignored the alleged
damages, of P38,835 indicated by Teves in Exhibit K. The consignees. counsel
relied oth on the auditors' reports, Exhibits A and E to I and on Exhibit B, the
chief clerk's statement. As already noted, those documents show that the total
damages, claimed by the company amounted to P349,245.37.
The best evidence on the cost of the said equipment would have been the sales
invoices instead of the oral testimony of Teves. He did not produce the sales
invoices.
Teves further testified that Salvador T. Lluch was the president of the union;
Nicanor Halibas, the treasurer; Mariano Badelles, the general manager, and
Luarentino Badelles, a vice president.
Appellants' statement of facts. - To sustain their appeal, the appellants made the
following exceedingly short and deficient recital of the facts:
Sometime in the month of August, 1954, defendant, Allied Free
Workers Union filed an unfair labor practice case against
defendant (should be plaintiff) and its branch manager, Mr.
Jose Teves, with the Court of Industrial Relations, Manila, and
docketed as Case No. 426-UPL: defendant union also filed a
petition for certification election docketed as Case No, 175-MC
against plaintiff; defendant union also filed a notice of strike
dated August 27, 1954; the Secretary of Labor wired the public
defender, Iligan City, on August 27, 1954 (see annexes 1-4,
motion to dismiss, Record on Appeal, pp. 54-65).
To counteract these legitimate moves of labor, plaintiff filed the
complaint docketed as Civil Case No. 577 in the Court of First
Instance of Lanao (now Lanao del Norte) for damages, and/or
resolution of contract with writ of preliminary injunction, On a
decision adverse to their interests, defendants take this appeal.
On the question of jurisdiction taken before this Honorable
Tribunal in G.R. No. L-8876, it was held:
... for the instant case merely refers to the recovery of
damages, occasioned by the picketing undertaken by the
members of the union and the rescission of the arrastre and
stevedoring contract previously entered into between the
parties.
The appellants did not discuss their oral and documentary evidence. *
First assignment of error. - The appellants contend that the trial court erred in
awarding to the company actual damages, amounting to P450,000, moral
damages, of P50,000 and attorney's Considering of P20,000, and in holding that
the four officers of the union are solidarily liable for the said damages.
Appellants' counsel assailed the award of actual damages, on the ground that the
auditors' reports, on which they were based, were hearsay.
After analyzing the nature of the damages, awarded, how the same were
computed, and the trustworthiness of the company's evidence, we find the first
assignment of error meritorious.
We have already stress that, on the basis of the reports of the two accountants,
the damages, claimed by the complaint as a matter of simple addition, does not
reach the sum of P 450,000 fixed by the trial court. The damages, shown in the
accountants' reports and in the statement made by the consignees. chief clerk
(who did not testify) amount to P349,245.37, or much less than P450,000.
The company argues that the accountants' reports are admissible in evidence
because of the rule that "when the original consists of numerous accounts or
other documents which cannot be examined in court without great loss-of time
and the fact sought to be established from them is oth the general result of the
whole", the original writings need not be produced (Sec. 2[e], Rule 130, Rules of
Court).
That rule cannot be applied in this case because the voluminous character of the
records, on which the accountants' reports were based, was not duly established
(U. S. vs. Razon and Tayag, 37 Phil. 856, 861; 29 Am Jur 2nd 529).
It is also a requisite for the application of the rule that the records and accounts
should be made accessible to the adverse party so that the company, of the
summary may be tested on cross-examination (29 Am Jur 2nd 517-8; 32A C.J.S.
111).
What applies to this case is the general rule "that an audit made by, or the
testimony of, a private auditor, is inadmissible in evidence as proof of the original
records, books of accounts, reports or the like" (Anno 52 ALR 1266).
That general rule cannot be relaxed in this case because the company failed to
make a preliminary showing as to the difficulty or impossibility attending the
production of the records in court and their examination and analysis as evidence
by the court (29 Am Jur 2nd 529).
A close scrutiny of the accountants' reports reveals their lack of probative value.
The propriety of allowing the different items of damages, is discussed below.
Unrealized freight and passenger revenue for 1954 ascertained by Accountant
Demetrio S. Jayme. - In his report (Exh. A, pp. 134 to 147, Record on Appeal),
Jayme used the pronouns "we" and "our" and made reference to the examination
made by the "auditors" and his accounting office.
He did not disclose the names of other "auditors" who assisted him in making the
examination of the consignees. records.
He gave the impression that he was an independent accountant hired by the
company to make a "special investigation" of the consignees. losses for the
period from January 1 to September 7, 1954.
The truth is that Jayme was a "personal friend" of Teves, the consignees. branch
manager at Iligan City. Teves was the consignees. principal witness in this case.
He verified the complaint. herein. He signed for the company the stevedoring and
arrastre contract which he later rescinded. In fact, Teves intervened in the
drafting of the contract. It was his Idea that the company should not pay the
arrastre and stevedoring Considering and that those charges should be borne by
the shippers and consignees.
Jayme was not only the friend of Teves but was also his co-employee. Jayme
was the consignees. branch manager at Ozamis City and later at Cagayan de
Oro City (217-8 tsn May 20, 1960; Exh. 12). He suppressed that fact in his report
of examination. Apparently, the practice of accounting was his sideline or he
practised accounting and, as the saying goes, he moonlighted as the
consignees. branch manager. Obviously, Jayme would be biased for the
company. He violated a rule of the accountants' code of ethics by not disclosing
in his report of examination that he was an employee of the company (84 tsn
June 2, 1960).
Accountant Jayme allegedly found from the consignees. records at Iligan City
that its freight and passenger revenue for the eight- month period from January 1
to August 31, 1953 amounted to P373,333.14 and that for the same period in
1954, that revenue amounted to P470,716.29, or an increase of P97,383.12
(Statement D of Exh. A, 145, Record on Appeal).
Jayme interpreted those figures as signifying that the company would have
realized more revenue if the union had rendered better service. He reasoned out
that there was a big volume of business in Iligan City due to the Maria Cristina
Fertilizer Plant, Iligan Steel Mill and NPC Hydroelectric Plant. He imagined that
the consignees. freight revenue during the first eight months of 1954 could have
amounted to at least P600,000 and that since it actually realized oth P
470,716.29, its loss of freight revenue for that period could be "conservatively"
estimated at least P100,000 (item 7 of the tabulation of damages).
He stated that he attached to his report on the comparative statement of gross
revenue a certificate of the captain of the vessel Panay showing the delays in its
dismissal in Iligan City as indicated in its logbook. No such document was
attached to Jayme's report.
And from the fact that the total fares received by the company during the eight-
month period were reduced in the sum of P3,951.58 (Jayme fixed the reduction
at the round figure of P4,000), he calculated that the company suffered a loss of
at least P20,000 in passenger revenue up to December 31, 1954 (Item 8 of the
tabulation of damages).
Jayme also included in his report (a) damages, amounting to P10,000 as
his estimate of losses supposedly "based on interviews with disinterested parties
at the wharf and city proper customers"; (b) damages, amounting to P3,764.50
allegedly suffered in the operation of the vessels Mindoro and Panay from
September 4 to 11, 1954, consisting of extra meals, expenses. for unloading
cargo, estimated loss in passage revenue for four voyages, and estimated loss
from 14 re-routed freights to competing vessels" (consisting of rice, corn and
bananas), and (e) the sum of P4,407.50 as alleged additional subsistence
incurred for the crew of the Panay and Mindoro from January 1 to August 31,
1954 (items 4, 5 and 6 of the tabulation of damages). The records of the purser
and chief steward were allegedly examined in ascertaining those damages.
It would not be proper to allow Jayme's estimates as recoverable damages. They
are not supported by reliable evidence. They can hardly be sanctioned by the
"generally accepted auditing standards" alluded to in Jayme's report. The
pertinent records of the company should have been produced in court. The
purser and steward did not testify.
The rule is that the auditor's summary should not include his conclusions or
inferences (29 Am Jur 2d 519). His opinion is not evidence.
The trial court unreservedly gave credence to the conjectures of Jayme.
Obviously, his inflated guesses are inherently speculative and devoid of
probative value. Furthermore, his estimate of the unrealized freight revenue for
January 1 to August 31, 1954 overlapped with his computation of the lost freight
for the unloaded 74,751 bags of fertilizer and other cargoes covering the same
period (Statement A of Exh. A).
The foregoing discussion shows Jayme's unreliable modus operandi in
ascertaining the 1954 losses which the company claimed to have suffered in
consequence of the union's alleged inefficiency or poor service. It is noteworthy
that those losses were not averred with particularity and certitude in the
consignees. complaint.
The same observations apply with equal cogency to the damages, amounting to
P40,407.20 as lost freight revenue also for the year 1954 (items 1 to 3 of the
tabulation of damages) which were computed by Accountant Jayme.
Those items refer to (1) the sum of P29,900.40 as lost freight revenue on 74,751
bags of fertilizer, already mentioned, which were booked for shipment in the
consignees. vessels from January 1 to August 31, 1954 but which were allegedly
loaded in other vessels; (2) P4,339.64 as unrealized freight revenue for other
cargoes booked in the consignees. vessels but not loaded therein during the
same eight-month period, and (3) P6,167,16 as unrealized freight revenue on
shutout cargoes not loaded in the consignees. vessels during the six-day period
from September 2 to 7, 1954.
Jayme allegedly based his computations on the records of the company which
were not produced in court. The union objected to Jayme's report as inadmissible
under the hearsay rule or as not being the best evidence.
Even if the presentation of the records themselves as exhibits should have been
dispensed with, yet the complaint to show good faith and fair dealing, could have
brought the records in court (manifests, bills of lading, receipts for the freights, if
any, etc.) and enabled the court and the union's counsel and its expert
accountant to verify the accuracy of Jayme's summaries.
Photostatic copies of some manifests and bills of lading proving that the
company was not able to collect the stipulated freight on the alleged shutout
cargoes should have been proforma. in evidence as supporting papers for
Jayme's report. No such exhibits were presented.
The flaw or error in relying merely on Jayme's summaries is that, as pointed out
by witness Mariano LL. Badelles, cargoes might be shutout due to causes other
than the supposed inefficiency of the union. He testified that cargoes were
shutout deliberately by the company because they could not be loaded in one
vessel (for example, 50,000 bags of fertilizer), or a shipper had no allotment, or
because the company did not want to load cargoes like bananas (189-194 tsn
May 20, 1960). Jayme's summaries did not take into account the probability that
a part of the cargo booked in the consignees. vessel for a certain date might not
have been loaded on that date but was loaded in another vessel of the company
which docked at the port a few days later, In that case, there would be no loss of
freight revenue. The mere shutting out of cargo in a particular voyage did
not ipso facto produce loss of freight revenue.
Our conclusion is that an injustice would be perpetrated if the damages,
aggregating P178,579 computed and estimated in the report of Jayme, a biased
witness, should be accepted at their face value.
Damages computed by Salvador M. Magante. - The company also claims as
damages, for the period from September 12 to December 28, 1954 lost freight
charges on shutout cargoes in the sum of P62,680.12, and the sum of P20,000
as "overhead expenses. for delay of vessels in port", as set forth by Salvador M.
Magante, the consignees. chief clerk at Iligan City, in his statement, Exhibit B
(items 9 and 10 of the tabulation of damages).
Magante did not testify on his statement. Instead, accountant Jayme, substituting
for Magante, testified on that statement. Jayme said that he verified the
consignees. records on which Magante based his statement. Jayme assured the
court that the figures in Magante's statement were supported by the consignees.
records.
But as to the damages, of P20,000, Jayme said that he could not certify as to
their company, because he had not finished his investigation (33 tsn March 9,
1955). In spite of that admission, the trial court allowed that item of damages.
The trial court erred in allowing the damages, totalling P82,680.12 because
Magante's statement, Exhibit B, is hearsay. Magante should have been
proforma. as a witness. Jayme was not competent to take his place since the
statement was prepared by Magante, not by Jayme. More appropriate still, the
documents and records on which the statement was based should have been
proforma. as evidence or at least brought to the court for examination by the
union's counsel and its accountant. The trial court required the production of the
manifests supporting Magante's statement (85-86 tsn march 9, 1955). Only one
such manifest, Exhibit C, was produced. The nonproduction of the other records
was not explained.
Lost freight revenue and operating expenses for the forklifts. - The company
claimed as damages, the sum of P87,986.05 (P151,403.85 as erroneously
computed by the consignees. counsel, 163 tsn March 11, 1950) consisting of
supposed unrealized freight charges for shutout or unloaded cargoes for the year
1955 to 1959 (Exh. E to I, Items 11 to 20 of the tabulation of damages).
The claim is covered by the company's third supplemental complaint dated
March 9, 1960 wherein it was alleged that due to the acts of the union and its
officers the company had suffered damages, of not less than P25,000 annually
since 1955 (320-3, Record on Appeal). That supplemental complaint was
hurriedly filed during the trial as directed by the trial court.
The said damages, were computed in the reports of Miguel J. Siojo, an
accountant who, for two days and nights, March 8 to 10, 1960, or shortly before
and during the trial, allegedly examined the consignees. record at Iligan City,
such as its cash book, cash vouchers, reports to the head office, shipping
manifests, and liquidation reports. Those records were not produced in court.
Their nonproduction was not explained. If the accountant was able to summarize
the contents of those records in two days, they could not have been very
voluminous. They should have been offered in evidence.
The alleged expenses. in the operation of the forklifts consisted of (a) the wates
of the operators hired by the company and (b) the cost of gasoline and oil and
expenses. for repair.
The company's theory is that under the 1952 contract (Exh. J) the union was
obligated to provide for forklifts in the loading and unloading of cargo. Inasmuch
as the union allegedly did not have forklifts, the complaint to expedite the arrastre
and stevedoring work, purchase forklifts, hired laborers to operate the same, and
paid for the maintenance expenses. The company treated those expenses as
losses or damages.
Those alleged damages, amounting to P87,986.05 are in the same category as
the depreciation allowances amounting to P38,835 which the company claimed
for the forklifts, pallet boards, tarpaulins and wire rope slings that it purchased for
oth P27,215, We have stated that the consignees. counsel ignored that
depreciation in his recapitulation of the damages, claimed by the plaintiff.
The union contends that Siojo's reports (Exh. E to I) were inadmissible evidence
because they were hearsay, meaning that the original documents, on which the
reports were based, were not presented in evidence and, therefore, appellants'
counsel and the court itself were not able to gauge the correctness of the figures
or data contained in the said reports. The person who had personal knowledge of
the operating expenses. was not examined in court.
We are of the opinion that, to avoid fraud or fabrication, the documents
evidencing the alleged expenses. should have been proforma. in evidence.
Siojo's reports were not the best evidence on the said operating expenses. The
explanation of Badelles with respect to shutout cargoes and our observations on
Jayme's summaries are applicable to accountant Siojo's reports.
A more substantial ground for rejecting Siojo's reports is that the said expenses,
if really incurred, cannot be properly treated as darn ages to the company.
The union's witness, Mariano LI. Badelles, testified that the consignees. forklifts
were not used exclusively on the wharf. They were used in the fertilizer and
carbide plants. Sometimes, the union supplied the driver and the gasoline for the
operation of the forklifts (174-177 tsn May 20, 1960).
Moreover, as stated earlier, the company was not paying the union a single
centavo for arrastre and stevedoring work. The shippers and consignees paid for
the arrastre service rendered by the union. The union did not receive any
compensation for stevedoring work.
The company complained that the union had been rendering unsatisfactory
arrastre and stevedoring services. That grievance was controverted by the union.
The use of the forklifts, tarpaulins pallet boards and wire rope slings
immeasurably benefitted the company. It is not proper nor just that the
consignees. investment in those pieces of equipment should be considered
damages, just because it was able to bind the union to a one-sided contract
which exempted it from the payment of arrastre and stevedoring Considering and
which impliedly obligated the union to purchase the said equipment.
If the service rendered by the union members was unsatisfactory, it must be
because the poor stevedores were underfed and underpaid. They were underfed
and underpaid because the company was astute enough to insure that it would
obtain stevedoring service without paying for it.
If to improve the arrastre and stevedoring service, the company had to incur
expenses. for the purchase of forklifts, pallet boards, tarpaulins and wire rope
slings and for the operation of the forklifts, the union should not be required to
reimburse the company for those expenses. The company should bear those
expenses. because the same redounded to its benefit.
The trial court erred in ordering the union and its officials to pay the amount of
the said expenses. as damages, to the company.
Moral damages and attorney's fees. - Considering that the consignees. claim for
moral damages, was based on the same facts on which it predicated its claim for
actual deduction which we have found to be groundless, it follows that the
company, a juridical person, is not entitled to moral damages.
Anyway, the company did not plead and prove moral damages. It merely claimed
moral damages, in the prayer of its complaint. That is not sufficient (Darang vs.
Ty Belizar, L-19487, January 31, 1967, 19 SCRA 214, 222).
Under the facts of this case, we do not find any justification for awarding
attorney's Considering to the company. Hence, the trial court's award of P20,000
as attorney's Considering is set aside.
Appellants' first assignment of error, although not properly argued by their
counsel, should be sustained.
Other assignments of error. - The union and its officers contend that the lower
court erred in dismissing their counterclaims. Their counsel did not even bother
to state in their brief the amount of the counterclaims.
The union filed counterclaims for P200,000 as compensation for stevedoring
services from August, 1952 to March 4, 1955; P500,000 as deduction P10,000
as attorney's Considering and P5,000 as premium on the counterbond (251-2,
Record on Appeal). In their supplemental counterclaim, they demanded
P500,000 as stevedoring charges for the period from March 4, 1955 to March 4,
1960 and additional damages, of P10,000 (308-10, Record on Appeal). The trial
court dismissed the said counterclaims.
The appellants in their three-sentence argument in support of their counterclaims
alleged that the company's bill of lading provided that the unloading of the
cargoes was at the consignees. expense (Exh. 1); that the company had not paid
the sum of P500,000 as compensation for the stevedoring services rendered by
the laborers up to 1960, and that the stipulation in the arrastre contract, "that the
Compañia Maritima shall not be liable for the payment of the services rendered
by the Allied Free Workers Union for the loading and deliveries of cargoes as
same is payable by the owners and consignees of cargoes, as it has been the
practice in the port of Iligan City" (Exh. J, pp. 14, 334, 359, 500 Record on
Appeal), was 'non- operative" and void, "being contrary to morals and public
policy".
That superficial argument is not well-taken. The printed stipulation in the bill of
lading was superseded by the contractual stipulation. The contract was prepared
by the union officials. As already noted, it was stipulated in the contract that the
stevedoring and arrastre charges should be paid by the shippers and consignees
in consonance with the practice in Iligan City. That stipulation was binding and
enforceable.
The supposed illegality of that stipulation was not squarely raised by the union
and its officials in their answer. They merely averred that the contract did not
express the true agreement of the parties. They did not sue for reformation of the
instrument evidencing the contract. The lower court did not err in dismissing
defendants' counterclaims.
The other two errors assigned by the appellants, namely, that the lower court
erred in issuing a permanent injunction against them and in executing its decision
pending appeal, are devoid of merit.
The appellants invoke section 9(d) of the Magna Carta of Labor regarding the
issuance of injunctions. That section has no application to this case because it
was definitively ruled by this Court in the certification and unfair labor practice
cases that there is no employer-employee relationship between the company and
the stevedores. (They work under the cabo system).
The lower court did not execute the money aspect of its judgment. It merely
required the defendants to file a supersedeas bond of P50,000.
As to the injunction, it should be recalled that it was this Court which, in its
resolution of May 16, 1962 in the execution and appeal incident (L-19651, 17
SCRA 513), allowed the company to terminate the stevedoring and arrastre work
of the union and to use another union to perform that work.
The company had the contractual right to terminate the 1952 contract (Taylor vs.
Uy Teng Piao, 43 Phil. 873). The lower court did not err in sustaining the
consignees. rescission of the contract and in enjoining the union from performing
arrastre and stevedoring work.
WHEREFORE, that portion of the trial court's judgment declaring the arrastre and
stevedoring contract terminated, permanently enjoining the union and its officials
from performing arrastre and stevedoring work for the vessels of the Compañia
Maritima, and dismissing defendants' counterclaim is affirmed.
The lower court's award of damages, is reversed and set aside. No costs.
SO ORDERED.
Barredo, Antonio, and Martin, JJ., concur.
Concepcion Jr., J., took no part.
Martin, J., was designated to sit in the Second Division
Separate Opinions
FERNANDO, J., concurring:

Concur in the exhaustive and ably-written opinion of Justice Aquino with the
observation that the objective of industrial peace and the Ideal of a
"compassionate society" so clearly manifested in the present Constitution call for
greater understanding and more sympathetic approach on the part of
management.

Separate Opinions

FERNANDO, J., concurring:

Concur in the exhaustive and ably-written opinion of Justice Aquino with the
observation that the objective of industrial peace and the Ideal of a
"compassionate society" so clearly manifested in the present Constitution call for
greater understanding and more sympathetic approach on the part of
management.