SY/LLABI/SYNOPSIS

SECOND DIVISION

[G.R. No. 117221. April 13, 1999]

IBM PHILIPPINES, INC., VIRGILIO L. PEA, and VICTOR V. REYES, petitioners, vs.NATIONAL LABOR
RELATIONS COMMISSION and ANGEL D. ISRAEL, respondents.

DECISION
MENDOZA, J.:

This is a petition for certiorari to set aside the decision,[1] dated April 15, 1994, of the National Labor
Relations Commission (NLRC) finding private respondent to have been illegally dismissed and ordering his
reinstatement and the payment of his wages from August 1991 until he is reinstated.
Petitioner IBM Philippines, Inc. (IBM) is a domestic corporation engaged in the business of selling
computers and computer services. Petitioners Virgilio L. Pea and Victor V. Reyes were ranking officers of
IBM during the period pertinent to this case.
On April 1, 1975, private respondent Angel D. Israel commenced employment with IBM as Office
Products Customer Engineer. For the next sixteen (16) years, he occupied two other positions in the
company,[2]received numerous awards,[3] and represented the company in various seminars and
conferences in and out of the country.[4]
On February 1, 1990, private respondent was assigned to the team supervised by petitioner Reyes.
On June 27, 1991, petitioner Reyes handed a letter to private respondent informing the latter that his
employment in the company was to be terminated effective July 31, 1991 on the ground of habitual tardiness
and absenteeism. The letter states, thus:

June 27, 1991

Mr. Angel D. Israel

Present

Dear Angel,

This refers to our previous discussion regarding your habitual absences and tardiness the last of which
was on June 26, 1991.

Your records will attest to the fact that on several occasions, your attention has been called to your
habitual tardiness and non-observance of standing office procedures regarding attendance. Despite
several opportunities given to you, you cannot seem to reform your ways and attitude on the matter of
attendance.Considering that we are a service-oriented company, you can appreciate that we cannot allow
such a situation to continue lest we put the best interest of the Company in jeopardy.

Much to our regret, therefore, pleased (sic) be advised that the Company is terminating your employment
effective July 31, 1991.
You are requested to report to Personnel Department at your earliest convenience for the settlement of
any money or benefits due you.

Very truly yours,

(Sgd) V.V. REYES

Business Manager

cc: L.L. Abano

Alleging that his dismissal was without just cause and due process, private respondent filed a
complaint with the Arbitration Branch of the Department of Labor and Employment (DOLE) on July 18,
1991.
In his position paper filed on September 6, 1991, he claimed that he was not given the opportunity to
be heard and that he was summarily dismissed from employment based on charges which had not been
duly proven.[5]
Petitioners denied private respondents claims. It was alleged that several conferences were held by
the management with private respondent because of the latters unsatisfactory performance in the company
and he was given sufficient warning and opportunity to reform and improve his attitude toward
attendance,[6] but to their regret, he never did. It was alleged that private respondent was constantly told of
his poor attendance record and inefficiency through the companys internal electronic mail (e-mail)
system. According to petitioners, this system allows paperless or telematic [7] communication among IBM
personnel in the company offices here and abroad. An employee is assigned a User ID and the
corresponding password is provided by the employee himself and, theoretically, known only to
him. Employees are then expected to turn on their computers everyday, log in to the system by keying in
their respective IDs and passwords in order to access and read the messages sent to and stored in the
computer system. To reply, an employee types in or encodes his message-response and sends the same
to the intended recipient, also via the computer system. The system automatically records the time and
date each message was sent and received, including the identification of the sender and receiver
thereof. All messages are recorded and stored in computer disks.[8]
Attached to petitioners position paper were copies of print-outs of alleged computer entries/messages
sent by petitioner Reyes to private respondent through IBMs internal computer system. The following is a
summary of the contents of the print-outs which mostly came from petitioner Reyes computer:
(a) Private respondent was admonished when he would miss out on meetings with clients and
failed to attend to important accounts, such as that of Hella Philippines; [9]
(b) Petitioner Reyes conducted consultations with private respondent concerning the latters work
habits;[10]
(c) A new policy of requiring employees to be at the office at 8:30 a.m. every morning was adopted
and employees were no longer allowed to sign out of the office by phone;[11]
(d) Petitioner Reyes would type into his computer the records of the security guard which reflect
private respondents daily tardiness and frequent absences;[12]
(e) Private respondent was admonished when he failed to respond to instructions from his
superiors;[13]
(f) IBM Australia, contacted by Hella Australia, once asked about the reported lack of attention
given to Hella Philippines.[14] Private respondent directly answered IBM Australia, through telematic
memo, and reported that Hella Philippines was deferring its computer plan and decided to use micros
in the meantime;[15]
(g) The said response was denied by Hella Australia which later made it clear that it would be
buying anything but IBM;[16] and
 (h) While private respondent showed some improvement after consultations where he allegedly
admitted his shortcomings, petitioner Reyes reported that he (private respondent) would eventually
slide back to his old ways despite constant counselling and repeated warnings that he would be
terminated if he would not improve his work habits.[17]
Through these computer print-outs calling private respondents attention to his alleged tardiness and
absenteeism, petitioner sought to prove that private respondent was sufficiently notified of the charges
against him and was guilty thereof because of his failure to deny the said charges.
On March 13, 1992, the labor arbiter rendered a decision finding private respondent to have been
terminated for cause and accordingly dismissing the complaint. Considering, however, the ground for
termination as well as private respondents long record of service to the company, the arbiter ordered the
award of separation pay at the rate equivalent to one-half (1/2) month salary for every year of service. The
dispositive portion of the decision reads

WHEREFORE, judgment is hereby rendered in this case declaring respondent IBM Phils., Inc. not guilty
of the charge of illegal dismissal. However, respondent company is directed to pay complainant Israel the
sum of Two Hundred Forty Eight Thousand (P248,000.00) as separation pay. All other claims are denied
for lack of merit.

It appears, however, that prior to the release of the labor arbiters decision at 11:21 a.m. on March 26,
1992, private respondent had filed a Manifestation And Motion To Admit Attached New Evidence For The
Complainant which was received by the Arbitration Branch at 10:58 a.m. of the same day. The evidence
consisted of private respondents Daily Time Records (DTRs) for the period June 1, 1990 to August 31,
1990 and pay slips for the period January 1990 to June 1991 showing that private respondent did not incur
any unexcused absences, that he was not late on any day within the period and that no deduction was
made from his salary on account of tardiness or absences.
Private respondent appealed to the NLRC which, on April 15, 1994, reversed the labor arbiters
decision and found private respondents dismissal illegal. The NLRC ruled: (1) that the computer print-outs
which petitioners presented in evidence to prove that private respondents office attendance was poor were
insufficient to show that the latter was guilty of habitual absences and tardiness; and (2) that private
respondent was not heard in his defense before the issuance of the final notice of dismissal. [18] The
dispositive portion of the NLRCs decision reads:

WHEREFORE, the Decision dated March 13, 1992 is hereby SET ASIDE and a new one entered
declaring the dismissal of the complainant as illegal. Respondent (sic) are hereby ordered to reinstate
complainant to his former position without loss of his seniority rights and to pay backwages starting
August 1991 until reinstated at the rate of P40,516.65 a month including all its benefits and bonuses.

Presiding Commissioner Edna Bonto-Perez dissented on the ground she found that petitioners have
presented strong and convincing documentary evidence that private respondent was guilty of habitual
tardiness and absences. She was also of the opinion that private respondent was sufficiently warned
before he was actually dismissed.[19]

Petitioners moved for a reconsideration, but their motion was denied in a resolution, dated July 20,
1994.Hence, this petition for certiorari. Petitioners contend that
1. THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF
DISCRETION TANTAMOUNT TO LACK OF JURISDICTION IN HOLDING THAT NO JUST
CAUSE EXISTS NOR WAS THERE DUE PROCESS OBSERVED IN THE DISMISSAL OF
THE PRIVATE RESPONDENT BECAUSE THE COMPUTER PRINTOUTS WHICH PROVE
JUST CAUSE AND DUE PROCESS ARE NOT ADMISSIBLE IN EVIDENCE.
2. THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF
DISCRETION TANTAMOUNT TO LACK OR EXCESS OF ITS JURISDICTION IN HOLDING
 THAT EVEN IF THE COMPUTER PRINTOUTS WERE ADMISSIBLE, PETITIONER FAILED
TO SATISFY DUE PROCESS.
We find petitioners contention to be without merit.
First. Petitioners argue that the computer print-outs submitted by them need not be identified or
authenticated according to the rules of procedure in regular courts in order for the same to be admissible
in evidence. They contend that technical rules of evidence do not apply to administrative/labor cases [20] and
because of a relaxation of the rules of evidence, private respondent was in fact allowed by the labor arbiter
to adduce additional evidence even after a decision had been rendered. [21]
It is indeed true that administrative agencies, such as the NLRC, are not bound by the technical rules
of procedure and evidence in the adjudication of cases. [22] This was the reason private respondent was
allowed to submit additional evidence even after the case was deemed submitted for resolution by the labor
arbiter.The practice of admitting additional evidence on appeal in labor cases has been sanctioned by this
Court.[23]
However, the liberality of procedure in administrative actions is subject to limitations imposed by basic
requirements of due process. As this Court said in Ang Tibay v. CIR,[24] the provision for flexibility in
administrative procedure does not go so far as to justify orders without a basis in evidence having rational
probative value. More specifically, as held in Uichico v. NLRC:[25]

It is true that administrative and quasi-judicial bodies like the NLRC are not bound by the technical rules
of procedure in the adjudication of cases. However, this procedural rule should not be construed as a
license to disregard certain fundamental evidentiary rules. While the rules of evidence prevailing in the
courts of law or equity are not controlling in proceedings before the NLRC, the evidence presented before
it must at least have a modicum of admissibility for it to be given some probative value. The Statement of
Profit and Losses submitted by Crispa, Inc. to prove its alleged losses, without the accompanying
signature of a certified public accountant or audited by an independent auditor, are nothing but self-
serving documents which ought to be treated as a mere scrap of paper devoid of any probative value.

The computer print-outs, which constitute the only evidence of petitioners, afford no assurance of their
authenticity because they are unsigned. The decisions of this Court, while adhering to a liberal view in the
conduct of proceedings before administrative agencies, have nonetheless consistently required some proof
of authenticity or reliability as condition for the admission of documents.
In Rizal Workers Union v. Ferrer-Calleja,[26] this Court struck down the decision of the Director of Labor
Relations which was based on an unsigned and unidentified manifesto. It was held:

From even a perfunctory assessment, it becomes apparent that the evidence upon which said decision is
professedly based does not come up to that standard of substantiality.

It is of course also a sound and settled rule that administrative agencies performing quasi-judicial
functions are unfettered by the rigid technicalities of procedure observed in the courts of law, and this so
that disputes brought before such bodies may be resolved in the most expeditious and inexpensive
manner possible. But what is involved here transcends mere procedural technicality and concerns the
more paramount principles and requirements of due process, which may not be sacrificed to speed or
expediency...The clear message of [Article 221 of the Labor Code] is that even in the disposition of labor
cases, due process must never be subordinated to expediency or dispatch. Upon this principle, the
unidentified documents relied upon by respondent Director must be seen and taken for what they are,
mere inadmissible hearsay. They cannot, by any stretch of reasoning, be deemed substantial evidence of
the election frauds complained of.

Likewise, in the case of EMS Manpower & Placement Services v. NLRC,[27] the employer submitted a
photocopy of a telex which supposedly shows that the employee was guilty of serious misconduct and
which became the basis of her dismissal. This Court ruled that the telex, a single document, totally
uncorroborated and easily concocted or fabricated to suit ones personal interest and purpose,[28] was
insufficient to uphold the employers defense.
In Jarcia Machine Shop and Auto Supply, Inc. v. NLRC, this Court held as incompetent unsigned daily
time records presented to prove that the employee was neglectful of his duties:

Indeed, the [DTRs] annexed to the present petition would tend to establish private respondents neglectful
attitude towards his work duties as shown by repeated and habitual absences and tardiness and
propensity for working undertime for the year 1992. But the problem with these DTRs is that they are
neither originals nor certified true copies. They are plain photocopies of the originals, if the latter do
exist. More importantly, they are not even signed by private respondent nor by any of the employers
representatives...[29]

In the case at bar, a specimen of the computer print-out submitted by petitioners reads:

Date and time 10/12/90 09:23:1

From: REYESVV -- MNLVM1

To: ISRAEL -- MNLRVM Israel, A.D.

SEC: I IBM INTERNAL USE ONLY

Subject:

Angel, have been trying to pin you down for a talk the past couple of days. Whatever happened to
our good discussion 2 weeks ago? I thought you would make an effort to come in on time from then
on? If you have problems which prevent you from coming in on time, let me know because I would
really like to help if I can. The sum of all your quotas is less than mine so I really need all of you
pitching in. Kindly take a look at your proofs in-tray as there are some to dos which are
pending. Acts such as St. Louis U. and NEECO should be worth looking into as theyve been
inquiring about upgrading their very old boxes. If you are too tied up for these accounts do let me
know so I can reassign. By Monday morning please. Lets give it that final push for the branch!

=============================================================
Regards from the APPLICATION MNLVM 1 (REYESVV)
SYSTEMS MARKETING group T (832)8192-279
Victor V. Reyes - Marketing Manager
=============================================================
Not one of the 18 print-out copies submitted by petitioners was ever signed, either by the sender or
the receiver. There is thus no guarantee that the message sent was the same message received. As the
Solicitor General pointed out, the messages were transmitted to and received not by private respondent
himself but his computer.[30]
Neither were the print-outs certified or authenticated by any company official who could properly attest
that these came from IBMs computer system or that the data stored in the system were not and/or could
not have been tampered with before the same were printed out. It is noteworthy that the computer unit and
system in which the contents of the print-outs were stored were in the exclusive possession and control of
petitioners since after private respondent was served his termination letter, he had no more access to his
computer.[31]
Second. Even if the computer print-outs were admissible, they would not suffice to show that private
respondents dismissal was justified.
Petitioners contention is that private respondent was repeatedly warned through computer messages
for coming in late or not reporting at all to the office during the period May 1990 -- June 1991 but he never
denied the allegations. Therefore, he must be deemed to have admitted these allegations.[32] But the burden
of proving that the dismissal was for just cause is on petitioners. They cannot simply rely on any admission
by private respondent implied from his failure to deny the alleged computer messages to him which he
denied he had ever received. On the other hand, private respondents additional evidence, consisting of
DTRs and pay slips, show that he did not incur unexcused absences or tardiness or that he suffered
deduction in pay on account of such absences or tardiness.
Indeed, petitioners could have easily proven their allegations by presenting private respondents
DTRs.Since these were in petitioners possession, their non-production thereof raises the presumption that
if presented they would be adverse to petitioners. This is precisely what the best evidence rule guards
against.

The purpose of the rule requiring the production of the best evidence is the prevention of fraud,
because if a party is in possession of such evidence and withholds it, and seeks to substitute inferior
evidence in its place, the presumption naturally arises that the better evidence is withheld for
fraudulent purposes which its production would expose and defeat.[33]

Private respondents DTRs for the period June 1, 1990 -- August 30, 1990[34] show that while his
attendance record may not have been perfect, it was at least satisfactory. The days when private
respondent did not report to the office were credited either as vacation or as sick leaves. On days when he
was away on business trips, his destination was shown. The DTRs were signed by petitioner Victor Reyes.
It is said that the DTRs presented were only for the period when private respondents attendance was
excellent; he took care not to submit his DTRs for other months during which he was often late in coming
to office.[35] As the Solicitor General has pointed out, however, it was precisely during that period of June 1,
1990 --August 30, 1990 when, according to the print-outs submitted by petitioners, private respondent was
often late or absent.
Nor is there proof to support petitioners allegation that it was private respondents secretary and not
him who often signed the attendance sheet.[36] Indeed, petitioners did not present private respondents
secretary or, at the very least, attach an affidavit sworn to by her to prove their allegations and thus dispute
the DTRs presented by private respondent. This, notwithstanding ample opportunity to do so. On the other
hand, as already stated, the DTRs, showing private respondents good attendance, were signed by
petitioner Victor Reyes himself, and no good reason has been shown why they cannot be relied upon in
determining private respondents attendance.
Third. Even assuming the charges of habitual tardiness and absenteeism were true, such offenses do
not warrant private respondents dismissal. He has not been shown to have ever committed any infraction
of company rules during his sixteen-year stint in the company. Although it is alleged that he failed to attend
important client meetings and gave false representations to a valued client to cover his tracks, there is no
record finding him guilty of such offenses. Dismissal has always been regarded as the ultimate
penalty.[37] The fact that lapses in private respondents attendance record may have occurred only during
his final year in the company, after a long period of exemplary performance, makes petitioners contention
dubious. While it is true that long years of service is no guarantee against dismissal for wrongdoing, [38] at
least the employees record does provide an index to his work. In case doubt exists between the evidence
presented by the employer and that presented by the employee, the scales of justice must be tilted in favor
of the latter.[39]
Fourth. The print-outs likewise failed to show that private respondent was allowed due process before
his dismissal.
The law requires an employer to furnish the employee two written notices before termination of his
employment may be ordered. The first notice must inform him of the particular acts or omissions for which
his dismissal is sought, the second of the employers decision to dismiss the employee after he has been
given the opportunity to be heard and defend himself.[40]
These requirements were not observed in this case. As noted earlier, there is no evidence that there
was an exchange of communication between petitioners and private respondent regarding the latters
supposed substandard performance. Private respondent has consistently denied, however, that he was
ever advised of the charges hurled against him. The so-called one-on-one consultations or personal
counsellings mentioned in the print-outs between petitioner Reyes and private respondent concerning the
latters work habits do not satisfy the requirements of due process, as we had occasion to say in Pono v.
NLRC.[41]

Consultations or conferences may not be a substitute for the actual holding of a hearing. Every
opportunity and assistance must be accorded to the employee by the management to enable him to
prepare adequately for his defense, including legal representation. [42]

In Ruffy v. NLRC,[43] this Court held that what would qualify as sufficient or ample opportunity, as
required by law, would be every kind of assistance that management must accord to the employee to enable
him to prepare adequately for his defense. No such opportunity was given to private respondent in this
case. He was simply served his termination notice without being heard in his defense.
Fifth. Petitioners allege that the NLRC, after concluding that the evidence submitted by them were not
properly identified or authenticated, should have remanded the case to the arbiter for clarificatory hearing.
A formal hearing was not de rigueur. The 1994 Rules of Procedure of the NLRC, 4 provides:

Immediately after the submission by the parties of their position papers/memorandum, the Labor Arbiter
shall, motu proprio, determine whether there is a need for a formal trial or hearing. At this stage, he may,
at his discretion and for the purpose of making such determination, ask clarificatory questions to further
elicit facts or information, including but not limited to the subpoena of relevant documentary evidence, if
any, from any party or witness.

As held by the NLRC:

Aside from these computer print-outs, respondents have not presented any other evidence to prove
that complainant was ever called for investigation nor his side heard prior to receipt of the
termination letter dated June 27, 1991. In fact, even if we consider these computer print-outs,
respondents still failed to satisfy the requirements of procedural due process. . . . In this particular
case, we observe that there is failure on the part of respondents to prove the existence of a legal
cause. The evidence presented before the Labor Arbiter did not sufficiently and clearly support the
allegation of respondents that complainant committed habitual absences and tardiness resulting into
inefficiency.[44]

In spite of this finding, petitioners failed to adduce additional evidence when they moved for a
reconsideration of the NLRC decision or when they filed the instant petition. Despite the opportunities
afforded them, petitioners failed to substantiate their allegations. Neither have they shown sufficient
reasons to convince this Court that, if the case were to be remanded to the arbiter for a formal hearing, they
would be able to present evidence which they could not have presented during the initial stages of this
case. As we held in Megascope General Services v. NLRC:[45]

As regards petitioners contention that a hearing has to be conducted to fully ventilate the issues in
the case, . . . [s]uffice it to state that nonverbal devices such as written explanations, affidavits,
position papers or other pleadings can establish just as clearly and concisely an aggrieved partys
defenses. Petitioner was amply provided with the opportunity to present evidence that private
respondents were not its employees.Indeed, it was petitioners failure to present substantial evidence
to buttress its claims that worked to its disadvantage and not the absence of a full-blown hearing
before the public respondent.

WHEREFORE, the petition is DISMISSED and the decision of the NLRC, dated April 15, 1994, is
hereby AFFIRMED.
 SO ORDERED.
Bellosillo, (Chairman), Puno, Quisumbing, and Buena, JJ., concur.

[1] NLRC NCR Case No. 00-01-04250-91; NLRC CA No. 003134-92.

[2]
Office Products Marketing Representative: July 1, 1977 - December 31, 1982; Data Processing Marketing
Representative:January 1, 1983 - July 31, 1991.
[3]
In 1977, he received the Customer Engineering Excellence in Service Award. He was also a consistent
member of the Hundred Percent Club from 1979 to 1990. See NLRC Decision, p. 7; Petition, Annex U;
Comment-Private Respondent, p. 4; Rollo, pp. 103, 146.
[4] Comment-Private Respondent, pp. 4-5; Rollo, pp. 146-147.
[5] Comment-NLRC, pp. 2-4; Rollo, pp. 209-211.
[6] Comment-NLRC, p. 4; Rollo, p. 211.
[7]The word telematic is not yet found in regular English dictionaries. According to petitioners, it is derived
from the French word telematique which is used in communications to refer to the combination of computers
and telecommunications for data processing and information. See Note 1, Petition, p. 43; Rollo, p. 44.
[8] Petition, pp. 36-37; Rollo, pp. 37-38.
[9] Petition, Annexes A, I, and J; Rollo, pp. 64, 73-74.
[10] Ibid., Annexes B and C; Rollo, pp. 65-67.
[11] Id., Annexes H and P; Rollo, pp. 72, 81.
[12] Id., Annexes Q and Q-1; Rollo, pp. 82-83.
[13] Id., Annexes D, E, F, and G; Rollo, pp. 68-71.
[14] Id., Annex K; Rollo, p. 76
[15] Id., Annex L; Rollo, p. 77.
[16] Id., Annexes M and N; Rollo, pp. 78-79.
[17] Id., Annexes R and S; Rollo, pp. 84-85.
[18] NLRC Decision, pp. 6-7; Rollo, pp. 102-103.
[19] See Petition, Annex W-1; Rollo, pp. 106-107.
[20] Petition, p. 43; Rollo, p. 44.
[21] Reply, p. 4; Rollo, p. 246.
[22] Labor Code, Art. 221; Jarcia Machine Shop and Auto Supply v. NLRC, 266 SCRA 97 (1997).
[23]
Caete v. NLRC, 250 SCRA 259, 266 (1995); Bristol Laboratories Employees Association v. NLRC, 187
SCRA 118, 121 (1990).
[24] 69 Phil. 635, 643 (1940).
[25] 273 SCRA 35, 44-45 (1997).
[26] 186 SCRA 431 (1990).
[27] 276 SCRA 117 (1997).
[28] Supra, at 121.
[29] 266 SCRA at 104.
[30] Comment-NLRC, p. 10; Rollo, p. 217.
[31] Comment, p. 10; Rollo, p. 152.
[32] Petition, pp. 45, 47; Rollo, pp. 46, 58.
[33] 7 Vicente V. Francisco, The Revised Rules of Court in the Philippines 121-122 (1973).
[34] Comment-Private Respondent, Annexes A to A-3; Rollo, pp. 165-168.
[35] Petition, p. 41; Rollo, p. 42.
[36] Petition, p. 14; Rollo, p. 17.
[37]
Philippine Long Distance Telephone Company v. National Labor Relations Commission and Enrique
Gabriel, G.R. No. 106947, February 11, 1999 citing Pantranco North Express, Inc. v. National Labor
Relations Commission, 252 SCRA 237, 243 (1996).
[38] Philippine Air Lines v. National Labor Relations Commission, 198 SCRA 748, 762 (1991).
[39]
Triple Eight Integrated Services, Inc. v. National Labor Relations Commission, G.R. No. 129584,
December 3, 1998.
[40]
Rule XIV, Book V, Omnibus Rules Implementing the Labor Code; National Service Corporation v. Third
Division, NLRC; Credo v. NLRC, 168 SCRA 122, 128-129 (1988).
[41] 275 SCRA 611 (1997).
[42] Id. at 619.
[43] 182 SCRA 365, 369-370 (1990).
[44] Rollo, pp. 100-101, 102.
[45] 274 SCRA 147, 155 (1997) (Emphasis added).
EN BANC

[A.M. No. CA-05-18-P. April 12, 2005]

ZALDY NUEZ, complainant, vs. ELVIRA CRUZ-APAO, respondent.

DECISION
PER CURIAM:

What brings our judicial system into disrepute are often the actuations of a few erring court personnel peddling
influence to party-litigants, creating the impression that decisions can be bought and sold, ultimately resulting in the
disillusionment of the public. This Court has never wavered in its vigilance in eradicating the so-called bad eggs in
the judiciary. And whenever warranted by the gravity of the offense, the supreme penalty of dismissal in an
administrative case is meted to erring personnel.[1]

The above pronouncement of this Court in the case of Mendoza vs. Tiongson[2] is applicable to the
case at bar.
 This is an administrative case for Dishonesty and Grave Misconduct [3] against Elvira Cruz-Apao
(Respondent), Executive Assistant II of the Acting Division Clerk of Court of the Fifteenth (15 th) Division,
Court of Appeals (CA). The complaint arose out of respondents solicitation of One Million Pesos
(P1,000,000.00) from Zaldy Nuez (Complainant) in exchange for a speedy and favorable decision of the
latters pending case in the CA,[4] more particularly, CA-G.R. SP No. 73460 entitled PAGCOR vs. Zaldy
Nuez.[5] Complainant initially lodged a complaint with the Action Center of the Television
program Imbestigador of GMA Network,[6] the crew of which had accompanied him to the Presidential Anti-
Organized Crime CommissionSpecial Projects Group (PAOCC-SPG) in Malacaang where he filed a
complaint for extortion[7] against respondent. This led to the conduct of an entrapment operation by
elements of the Presidential Anti-Organized Crime Task Force (PAOCTF) on 28 September 2004 at the
Jollibee Restaurant, 2nd Floor, Times Plaza Bldg., corner Taft and United Nations Avenue, Manila, [8] the
place where the supposed hand-over of the money was going to take place.
Respondents apprehension by agents of the PAOCTF in the course of the entrapment operation
prompted then CA Presiding Justice (PJ) Cancio C. Garcia (now Supreme Court Justice) to issue Office
Order No. 297-04-CG[9] (Order) which created an ad-hoc investigating committee (Committee).[10] The
Committee was specifically tasked among others to conduct a thorough and exhaustive investigation of
respondents case and to recommend the proper administrative sanctions against her as the evidence may
warrant.[11]
In accordance with the mandate of the Order, the Committee conducted an investigation of the case
and issued a Resolution[12] dated 18 October 2004 where it concluded that a prima facie case of Dishonesty
and Serious Misconduct against respondent existed. The Committee thus recommended respondents
preventive suspension for ninety (90) days pending formal investigation of the charges against her. [13] On
28 January 2005, the Committee submitted a Report[14] to the new CA Presiding Justice Romeo A. Brawner
with its recommendation that respondent be dismissed from service.
Based on the hearings conducted and the evidence received by the Committee, the antecedent facts
are as follows:
Complainants case referred to above had been pending with the CA for more than two
years.[15]Complainant filed an illegal dismissal case against PAGCOR before the Civil Service Commission
(CSC). The CSC ordered complainants reinstatement but a writ of preliminary injunction and a temporary
restraining order was issued by the CA in favor of PAGCOR, thus complainant was not reinstated to his
former job pending adjudication of the case.[16] Desiring an expeditious decision of his case, complainant
sought the assistance of respondent sometime in July 2004 after learning of the latters employment with
the CA from her sister, Magdalena David. During their first telephone conversation[17] and thereafter through
a series of messages they exchanged via SMS,[18] complainant informed respondent of the particulars of
his pending case. Allegedly, complainant thought that respondent would be able to advise him on how to
achieve an early resolution of his case.
However, a week after their first telephone conversation, respondent allegedly told complainant that a
favorable and speedy decision of his case was attainable but the person who was to draft the decision was
in return asking for One Million Pesos (P1,000,000.00).[19]
Complainant expostulated that he did not have that kind of money since he had been jobless for a long
time, to which respondent replied, Eh, ganoon talaga ang lakaran dito, eh. Kung wala kang pera, pasensiya
na.[20] Complainant then tried to ask for a reduction of the amount but respondent held firm asserting that
the price had been set, not by her but by the person who was going to make the decision. [21] Respondent
even admonished complainant with the words Wala tayo sa palengke iho![22] when the latter bargained for
a lower amount.[23]
Complainant then asked for time to determine whether or not to pay the money in exchange for the
decision. Instead, in August of 2004, he sought the assistance of Imbestigador.[24] The crew of the TV
program accompanied him to PAOCCF-SPG where he lodged a complaint against respondent for
extortion.[25]Thereafter, he communicated with respondent again to verify if the latter was still asking for the
money[26] and to set up a meeting with her.[27] Upon learning that respondents offer of a favorable decision
in exchange for One Million Pesos (P1,000,000.00) was still standing, the plan for the entrapment operation
was formulated by Imbestigador in cooperation with the PAOCC.
On 24 September 2004, complainant and respondent met for the first time in person at the 2 nd Floor
of Jollibee, Times Plaza Bldg.,[28] the place where the entrapment operation was later conducted. Patricia
Siringan (Siringan), a researcher of Imbestigador, accompanied complainant and posed as his sister-in-
law.[29]During the meeting, complainant clarified from respondent that if he gave the amount of One Million
Pesos (P1,000,000.00), he would get a favorable decision. This was confirmed by the latter together with
the assurance that it would take about a month for the decision to come out.[30] Respondent also explained
that the amount of One Million Pesos (P1,000,000.00) guaranteed a favorable decision only in the CA but
did not extend to the Supreme Court should the case be appealed later.[31]
When respondent was asked where the money will go, she claimed that it will go to a male researcher
whose name she refused to divulge. The researcher was allegedly a lawyer in the CA Fifth (5 th) Division
where complainant case was pending.[32] She also claimed that she will not get any part of the money unless
the researcher decides to give her some.[33]
Complainant tried once again to bargain for a lower amount during the meeting but respondent
asserted that the amount was fixed. She even explained that this was their second transaction and the
reason why the amount was closed at One Million Pesos (P1,000,000.00) was because on a previous
occasion, only Eight Hundred Thousand Pesos (P800,000.00) was paid by the client despite the fact that
the amount had been pegged at One Million Three Hundred Thousand Pesos
(P1,300,000.00).[34] Complainant then proposed that he pay a down payment of Seven Hundred Thousand
Pesos (P700,000.00) while the balance of Three Hundred Thousand Pesos (P300,000.00) will be paid once
the decision had been released.[35] However, respondent refused to entertain the offer, she and the
researcher having learned their lesson from their previous experience for as then, the client no longer paid
the balance of Five Hundred Thousand Pesos (P500,000.00) after the decision had come out.[36]
Complainant brought along copies of the documents pertinent to his case during the first meeting. After
reading through them, respondent allegedly uttered, Ah, panalo ka.[37] The parties set the next meeting date
at lunchtime on 28 September 2004 and it was understood that the money would be handed over by
complainant to respondent then.[38]
On the pre-arranged meeting date, five (5) PAOCTF agents, namely: Capt. Reynaldo Maclang
(Maclang) as team leader, SPO1 Renato Banay (Banay), PO1 Bernard Villena (Villena), PO1 Danny
Feliciano, and PO2 Edgar delos Reyes[39] arrived at around 11:30 in the morning at Jollibee. [40] Nuez and
Siringan arrived at past noon and seated themselves at the table beside the one occupied by the two (2)
agents, Banay and Villena. Complainant had with him an unsealed long brown envelope containing ten (10)
bundles of marked money and paper money which was to be given to respondent. [41] The envelope did not
actually contain the One Million Pesos (P1,000,000.00) demanded by respondent, but instead contained
paper money in denominations of One Hundred Pesos (P100.00), Five Hundred Pesos (P500.00) and One
Thousand Pesos (P1,000.00), as well as newspaper cut-outs.[42] There were also ten (10) authentic One
Hundred Peso (P100.00) bills which had been previously dusted with ultra-violet powder by the
PAOCTF.[43] The three other PAOCTF agents were seated a few tables away[44] and there were also three
(3) crew members from Imbestigador at another table operating a mini DV camera that was secretly
recording the whole transaction.[45]
Respondent arrived at around 1:00 p.m.[46] She appeared very nervous and suspicious during the
meeting.[47] Ironically, she repeatedly said that complainant might entrap her, precisely like those that were
shown on Imbestigador.[48] She thus refused to receive the money then and there. What she proposed was
for complainant and Siringan to travel with her in a taxi and drop her off at the CA where she would receive
the money.[49]
More irony ensued. Respondent actually said that she felt there were policemen around and she was
afraid that once she took hold of the envelope complainant proffered, she would suddenly be arrested and
handcuffed.[50] At one point, she even said, Ayan o, tapos na silang kumain, bakit hindi pa sila
umaalis?,[51]referring to Banay and Villena at the next table. To allay respondents suspicion, the two agents
stood up after a few minutes and went near the staircase where they could still see what was going on.[52]
 Complainant, respondent and Siringan negotiated for almost one hour.[53] Complainant and Siringan
bargained for a lower price but respondent refused to accede. When respondent finally touched the
unsealed envelope to look at the money inside, the PAOCTF agents converged on her and invited her to
the Western Police District (WPD) Headquarters at United Nations Avenue for questioning. [54] Respondent
became hysterical as a commotion ensued inside the restaurant. [55]
On the way to the WPD on board the PAOCTF vehicle, Banay asked respondent why she went to the
restaurant. The latter replied that she went there to get the One Million Pesos (P1,000,000.00).[56]
Respondent was brought to the PNP Crime Laboratory at the WPD where she was tested and found
positive for ultra-violet powder that was previously dusted on the money.[57] She was later detained at the
WPD Headquarters.
At seven oclock in the evening of 28 September 2004, respondent called Atty. Lilia Mercedes
Encarnacion Gepty (Atty. Gepty), her immediate superior in the CA at the latters house. [58] She tearfully
confessed to Atty. Gepty that she asked for money for a case and was entrapped by police officers and the
media.[59] Enraged at the news, Atty. Gepty asked why she had done such a thing to which respondent
replied, Wala lang maam, sinubukan ko lang baka makalusot. [60] Respondent claimed that she was
ashamed of what she did and repented the same. She also asked for Atty. Geptys forgiveness and help.
The latter instead reminded respondent of the instances when she and her co-employees at the CA were
exhorted during office meetings never to commit such offenses. [61]
Atty. Gepty rendered a verbal report[62] of her conversation with their divisions chairman, Justice Martin
S. Villarama. She reduced the report into writing and submitted the same to then PJ Cancio Garcia on 29
September 2004.[63] She also later testified as to the contents of her report to the Committee.
During the hearing of this case, respondent maintained that what happened was a case of instigation
and not an entrapment. She asserted that the offer of money in exchange for a favorable decision came
not from her but from complainant. To support her contention, she presented witnesses who testified that
it was complainant who allegedly offered money to anyone who could help him with his pending case. She
likewise claimed that she never touched the money on 28 September 2004, rather it was Capt. Maclang
who forcibly held her hands and pressed it to the envelope containing the money. She thus asked that the
administrative case against her be dismissed.
This Court is not persuaded by respondents version. Based on the evidence on record, what happened
was a clear case of entrapment, and not instigation as respondent would like to claim.
In entrapment, ways and means are resorted to for the purpose of ensnaring and capturing the law-
breakers in the execution of their criminal plan. On the other hand, in instigation, the instigator practically
induces the would-be defendant into the commission of the offense, and he himself becomes a co-
principal.[64]
In this case, complainant and the law enforcers resorted to entrapment precisely because respondent
demanded the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a favorable
decision of the latters pending case. Complainants narration of the incidents which led to the entrapment
operation are more in accord with the circumstances that actually transpired and are more credible than
respondents version.
Complainant was able to prove by his testimony in conjunction with the text messages from respondent
duly presented before the Committee that the latter asked for One Million Pesos (P1,000,000.00) in
exchange for a favorable decision of the formers pending case with the CA. The text messages were
properly admitted by the Committee since the same are now covered by Section 1(k), Rule 2 of the Rules
on Electronic Evidence[65] which provides:

Ephemeral electronic communication refers to telephone conversations, text messages . . . and other electronic forms
of communication the evidence of which is not recorded or retained.

Under Section 2, Rule 11 of the Rules on Electronic Evidence, Ephemeral electronic communications
shall be proven by the testimony of a person who was a party to the same or who has personal knowledge
thereof . . . . In this case, complainant who was the recipient of said messages and therefore had personal
knowledge thereof testified on their contents and import. Respondent herself admitted that the cellphone
number reflected in complainants cellphone from which the messages originated was hers. [66] Moreover,
any doubt respondent may have had as to the admissibility of the text messages had been laid to rest when
she and her counsel signed and attested to the veracity of the text messages between her and
complainant.[67] It is also well to remember that in administrative cases, technical rules of procedure and
evidence are not strictly applied.[68]We have no doubt as to the probative value of the text messages as
evidence in determining the guilt or lack thereof of respondent in this case.
Complainants testimony as to the discussion between him and respondent on the latters demand for
One Million Pesos (P1,000,000.00) was corroborated by the testimony of a disinterested witness, Siringan,
the reporter of Imbestigador who was present when the parties met in person. Siringan was privy to the
parties actual conversation since she accompanied complainant on both meetings held on 24 and 28 of
September 2004 at Jollibee.
Respondents evidence was comprised by the testimony of her daughter and sister as well as an
acquaintance who merely testified on how respondent and complainant first met. Respondents own
testimony consisted of bare denials and self-serving claims that she did not remember either the statements
she herself made or the contents of the messages she sent. Respondent had a very selective memory
made apparent when clarificatory questions were propounded by the Committee.
When she was asked if she had sent the text messages contained in complainants cellphone and
which reflected her cellphone number, respondent admitted those that were not incriminating but claimed
she did not remember those that clearly showed she was transacting with complainant. Thus, during the
17 November 2004 hearing, where respondent was questioned by Justice Salazar-Fernando, the following
transpired:

Q: After reading those text messages, do you remember having made those text messages?

(Respondent)

A: Only some of these, your honors.

Justice Salazar-Fernando: Which one?

A: Sabi ko po magpunta na lang sila sa office. Yung nasa bandang unahan po, your Honors.

Q: What else?

A: Tapos yung sabi ko pong pagpunta niya magdala siya ng I.D. or isama niya sa kanya si Len David.

Q: Okay, You remember having texted Zaldy Nuez on September 23, 2004 at 1309 which was around
1:09 in the afternoon and you said di me pwede punta na lang kayo dito sa office Thursday 4:45
p.m. Room 107 Centennial Building.

A: Yes, your Honors.

Q: And on September 23, 2004 at 1731 which was around 5:31 in the afternoon you again texted Zaldy
Nuez and you said Sige bukas nang tanghali sa Times Plaza, Taft Avenue, corner U.N. Avenue.
Magdala ka ng I.D. para makilala kita o isama mo si Len David.

A: Opo, your Honors.

 Q: How about on September 23 at 5:05 in the afternoon when you said Di pwede kelan mo gusto fixed
price na iyon.

A: I dont remember that, your Honors.

Q: Again on September 23 at 5:14 p.m. you said Alam mo di ko iyon price and nagbigay noon yung
gagawa. Wala ako doon. You dont also remember this?

A: Yes, your Honors.

Q: September 27 at 1:42 p.m. Oo naman ayusin nyo yung hindi halatang pera. You also dont remember
that?

A: Yes Your Honors.

Q: September 27 at 1:30 in the afternoon, Di na pwede sabi sa akin. Pinakaiusapan ko na nga ulit
iyon. You dont remember that?

A: No, your Honors.[69]

Respondent would like this Court to believe that she never had any intention of committing a crime,
that the offer of a million pesos for a favorable decision came from complainant and that it was complainant
and the law enforcers who instigated the whole incident.
Respondent thus stated that she met with complainant only to tell the latter to stop calling and texting
her, not to get the One Million Pesos (P1,000,000.00) as pre-arranged.
This claim of respondent is preposterous to say the least. Had the offer of a million pesos really come
from complainant and had she really intended to stop the latter from corrupting her, she could have simply
refused to answer the latters messages and calls. This she did not do. She answered those calls and
messages though she later claimed she did not remember having sent the same messages to complainant.
She could also have reported the matter to the CA Presiding Justice, an action which respondent admitted
during the hearing was the proper thing to do under the circumstances. [70] But this course of action she did
not resort to either, allegedly because she never expected things to end this way. [71]
While claiming that she was not interested in complainants offer of a million pesos, she met with him
not only once but twice, ostensibly, to tell the latter to stop pestering her. If respondent felt that telling
complainant to stop pestering her would be more effective if she did it in person, the same would have been
accomplished with a single meeting. There was no reason for her to meet with complainant again on 28
September 2004 unless there was really an understanding between them that the One Million Pesos
(P1,000,000.00) will be handed over to her then. Respondent even claimed that she became afraid of
complainant when she learned that the latter had been dismissed by PAGCOR for using illegal
drugs.[72] This notwithstanding, she still met with him on 28 September 2004.
Anent complainants narration of respondents refusal to reduce the amount of One Million Pesos
(P1,000.000.00) based on the lesson learned from a previous transaction, while admitting that she actually
said the same, respondent wants this Court to believe that she said it merely to have something to talk
about.[73] If indeed, respondent had no intention of committing any wrongdoing, it escapes the Court why
she had to make up stories merely to test if complainant could make good on his alleged boast that he
could come up with a million pesos. It is not in accord with ordinary human experience for an honest
government employee to make up stories that would make party-litigants believe that court decisions may
be bought and sold. Time and again this Court has declared, thus:

Everyone in the judiciary bears a heavy burden of responsibility for the proper discharge of his duty and it behooves
everyone to steer clear of any situations in which the slightest suspicion might be cast on his conduct. Any
misbehavior on his part, whether true or only perceived, is likely to reflect adversely on the administration of
justice.[74]

Respondent having worked for the government for twenty four (24) years, nineteen (19) of which have
been in the CA,[75] should have known very well that court employees are held to the strictest standards of
honesty and integrity. Their conduct should at all times be above suspicion. As held by this Court in a
number of cases, The conduct or behavior of all officials of an agency involved in the administration of
justice, from the Presiding Judge to the most junior clerk, should be circumscribed with the heavy burden
of responsibility.[76]Their conduct must, at all times be characterized by among others, strict propriety and
decorum in order to earn and maintain the respect of the public for the judiciary.[77]
Respondents actuations from the time she started communicating with complainant in July 2004 until
the entrapment operation on 28 September 2004 show a lack of the moral fiber demanded from court
employees. Respondents avowals of innocence notwithstanding, the evidence clearly show that she
solicited the amount of One Million Pesos (P1,000,000.00) from complainant in exchange for a favorable
decision. The testimony of Atty. Gepty, the recipient of respondents confession immediately after the
entrapment operation, unmistakably supports the finding that respondent did voluntarily engage herself in
the activity she is being accused of.
Respondents solicitation of money from complainant in exchange for a favorable decision violates
Canon I of the Code of Conduct for Court Personnel which took effect on 1 June 2004 pursuant to A.M. No.
03-06-13-SC. Sections 1 and 2, Canon I of the Code of Conduct for Court Personnel expressly provide:

SECTION 1. Court personnel shall not use their official position to secure unwarranted benefits, privileges or
exemption for themselves or for others.

SECTION 2. Court personnel shall not solicit or accept any gift, favor or benefit based on any explicit or
implicit understanding that such gift, favor or benefit shall influence their official actions. (Underscoring
supplied)

It is noteworthy that the penultimate paragraph of the Code of Conduct for Court Personnel specifically
provides:

INCORPORATION OF OTHER RULES

SECTION 1. All provisions of the law, Civil Service rules, and issuances of the Supreme Court governing the
conduct of public officers and employees applicable to the judiciary are deemed incorporated into this Code.

By soliciting the amount of One Million Pesos (P1,000,000.00) from complainant, respondent
committed an act of impropriety which immeasurably affects the honor and dignity of the judiciary and the
peoples confidence in it.
In the recent case of Aspiras vs. Abalos,[78] complainant charged respondent, an employee of the
Records Section, Office of the Court Administrator (OCA), Supreme Court for allegedly deceiving him into
giving her money in the total amount of Fifty Two Thousand Pesos (P52,000.00) in exchange for his
acquittal in a murder case on appeal before the Supreme Court. It turned out that respondents
representation was false because complainant was subsequently convicted of murder and sentenced to
suffer the penalty of reclusion perpetuaby the Supreme Court.[79]
The Supreme Court en banc found Esmeralda Abalos guilty of serious misconduct and ordered her
dismissal from the service. This Court aptly held thus:

In Mirano vs. Saavedra,[80] this Court emphatically declared that a public servant must exhibit at all times the
highest sense of honesty and integrity. The administration of justice is a sacred task, and by the very nature of their
duties and responsibilities, all those involved in it must faithfully adhere to, hold inviolate, and invigorate the
principle that public office is a public trust, solemnly enshrined in the Constitution. [81]
 Likewise, in the grave misconduct case against Datu Alykhan T. Amilbangsa of the Sharia Circuit
Court, Bengo, Tawi-Tawi,[82] this Court stated:

No position demands greater moral righteousness and uprightness from the occupant than the judicial office. Those
connected with the dispensation of justice bear a heavy burden of responsibility. Court employees in particular, must
be individuals of competence, honesty and probity charged as they are with safeguarding the integrity of the court . .
. . The High Court has consistently held that persons involved in the administration of justice ought to live up to the
strictest standards of honesty and integrity in the public service. He should refrain from financial dealings which
would interfere with the efficient performance of his duties.[83] The conduct required of court personnel must always
be beyond reproach.[84]

The following pronouncement of this Court in the case of Yrastorza, Sr. vs. Latiza, Court Aide, RTC
Branch 14 Cebu City[85] is also worth remembering:

Court employees bear the burden of observing exacting standards of ethics and morality. This is the price one pays
for the honor of working in the judiciary. Those who are part of the machinery dispensing justice from the lowliest
clerk to the presiding judge must conduct themselves with utmost decorum and propriety to maintain the publics
faith and respect for the judiciary. Improper behavior exhibits not only a paucity of professionalism at the workplace
but also a great disrespect to the court itself. Such demeanor is a failure of circumspection demanded of every public
official and employee.[86]

In view of the facts narrated above and taking into account the applicable laws and jurisprudence, the
Committee in their Report[87] recommended that respondent be dismissed from government service for
GRAVE MISCONDUCT and violation of Sections 1 and 2, Canon 1 of the Code of Conduct for Court
Personnel.[88]
Finding the Committees recommendation to be supported by more than substantial evidence and in
accord with the applicable laws and jurisprudence, the recommendation is well taken.
WHEREFORE, premises considered, respondent Elvira Cruz-Apao is found GUILTY of GRAVE
MISCONDUCT and violation of SECTIONS 1 and 2 of the CODE OF CONDUCT FOR COURT
PERSONNEL and is accordingly DISMISSED from government service, with prejudice to re-employment
in any branch, instrumentality or agency of the government, including government-owned and controlled
corporations. Her retirement and all benefits except accrued leave credits are hereby FORFEITED.
SO ORDERED.
Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Sandoval-Gutierrez, Carpio,
Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Azcuna, Tinga and Chico-Nazario, JJ., concur.
Garcia, J., No part.

[1] Mendoza vs. Tiongson, 333 Phil. 508 (1996).

[2] Ibid.
[3] CA Records, Vol. 1, p. 47.
[4] Id. at 13.
[5] Id. at 1.
[6] Id. at 14.
[7] Id. at 15.
[8] Id. at 1, 17, 19.
[9] Id. at 1-2.
[10] Composed of Justice Rodrigo V. Cosico as Chairman and Justices Remedios Salazar-Fernando and
Japar B. Dimaampao as members.
[11] Supra note 9.
[12] CA Records, pp. 92-96.
[13] Id. at 95-96.
[14] Ad Hoc Investigating Committee Report, pp. 1-47.
[15] TSN, 18 October 2004, pp. 117-118.
[16] Id. at 129-132.
[17] Id. at 91.
[18] Short Message Sending.
[19] TSN, 18 October 2004, p. 97.
[20] Id. at 92; TSN, 24 November 2004, p. 32.
[21] TSN, 24 November 2004, pp. 97-98.
[22] Id. at 34.
[23] Ibid.
[24] Id. at 32.
[25] Supra note 7.
[26] TSN, 18 October 2004, p. 224.
[27] TSN, 12 November 2004, p. 55.
[28] TSN, 18 October 2004, pp. 15-17; CA Records, pp. 143-145.
[29] Id. at p. 25; CA Records, p. 153.
[30] Id. at 24-25; CA Records, pp. 152-153.
[31] TSN, 12 October 2004, p. 24; CA Records, p. 84.
[32] TSN, 18 October 2004, pp. 17, 19-20; CA Records, pp. 145, 147-148.
[33] Id. at 18-19.
[34] Id. at 18.
[35] Id. at 87.
[36] TSN, 12 October 2004, p. 24; CA Records, p. 85; Id. at 18; CA Records, p.146.
[37] TSN, 18 October 2004, pp. 25, 87-88; CA Records, p. 153.
[38] Id at 32; CA Records, p. 160.
[39] TSN, 18 October 2004, pp. 45, 59-60.
[40] TSN, 22 October 2004, pp. 21-22.
[41] Id. at 30-31, 42-43.
[42] Ibid.
[43] TSN, 28 October 2004, pp. 10, 34, 41.
[44] Id. at 23; TSN, 18 October 2004, p. 55.
[45] TSN, 18 October 2004, pp. 56, 141.
[46] Id. at 23.
[47] Id. at 38, 145.
[48] TSN, 24 November 2004, p. 38.
[49] TSN, 18 October 2004, p. 22; TSN, 24 November 2004, p. 39.
[50] Ibid.
[51] TSN, 18 October 2004, p. 45, 57.
[52] TSN, 22 October 2004, p. 10.
[53] TSN, 24 November 2004, p. 36.
[54] TSN, 22 October 2004, pp. 11-12.
[55] TSN, 24 November 2004, p. 40.
[56] TSN, 22 October 2004, p. 12.
[57] TSN, 28 October 2004, p. 6.
[58] CA Records, Vol. 1, p. 6.
[59] Ibid.
[60] Ibid.
[61] Id. at 7.
[62] Ibid.
[63] CA Records, p. 5.
[64] People vs. Lapatha, No. L-63074-75, 9 November 1988, 167 SCRA 159.
[65] Section 2, Rule 1 of the Rules on Electronic Evidence provides that: These Rules shall apply to . . .
administrative cases.
[66] TSN, 12 October 2004, pp. 14, 20.
[67] CA Records, Vol. 1, p. 101; TSN, 17 November 2004, p. 52.
[68] Emin vs. De Leon, G.R. No. 139794, 27 February 2002, 378 SCRA 143.
[69] TSN, 17 November 2004, pp. 60-62.
[70] TSN, 12 November 2004, pp. 69-70.
[71] Ibid.
[72] TSN, 17 November 2004, p. 68.
[73] TSN, 12 October 2004, p. 25.
[74] Racasa vs. Callado-Callizo, 430 Phil. 775 (2002); Valentin Ruga vs. Edwin Ligot, SC Chief Judicial Staff
Officer, MISO, MISO-SDAAD, A.M. No. 2003-5-SC, 20 November 2003, 416 SCRA 255.
[75] TSN, 12 November 2004, p. 33.
[76] Fabian vs. Galo, A.M. No. P-96-1214, June 10, 2003, 403 SCRA 375, 379 citing Biag vs. Gubatanga,
376 Phil. 870; 318 SCRA 753 (1999); Gacho vs. Fuentes, 353 Phil. 665 (1998); OCA vs. Alvarez,
350 Phil. 771 (1998).
[77] Ibid, citing Judge Amado S. Caguioa vs. Crisanto Flora, 412 Phil 426 (2001), citing Alawi vs. Alauya,
335 Phil. 1096 (1997); Quiroz vs. Orfila, 338 Phil. 828 (1997); Re: Report on the Judicial Audit
Conducted in RTC, Br. 82, Odiongan, Romblon, 354 Phil. 1 (1998) citing Orfila vs. Quiroz, supra.
[78] A .M. No. OCA-01-6, 02 September 2003, 410 SCRA 274.
[79] Ibid.
[80] 225 SCRA 77 (1993).
[81] Ibid.
[82] Re: Memorandum dated 27 Sept. 1999 of Ma. Corazon M. Molo, OIC, OAS, OCA, A.M. No. SC-00-6-P,
16 October 2003, 413 SCRA 520.
[83] Cana vs. Santos, 234 SCRA 17 (1994).
[84] Caguioa vs. Flora, 360 SCRA 12 (2001).
[85] A. M. No. P-02-1610, 27 November 2003, 416 SCRA 472.
[86] Ibid.
[87] See note 12.
[88] Ibid.

Republic of the Philippines

SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 170491 April 4, 2007

NATIONAL POWER CORPORATION, Petitioner,

vs.
HON. RAMON G. CODILLA, JR., Presiding Judge, RTC of Cebu, Br. 19, BANGPAI SHIPPING
COMPANY, and WALLEM SHIPPING, INCORPORATED, Respondents.

DECISION

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari under Rule 45 of the Rules of Civil Procedure, assailing
the Decision1 of the Court of Appeals in CA-G.R. CEB-SP No. 00848, dated 9 November 2005, which
dismissed the Petition for Certiorari filed by the National Power Corporation seeking to set aside the
Order2 issued by the Regional Trial Court (RTC) of Cebu, Branch 19 dated 16 November 2004, denying
admission and excluding from the records plaintiff’s (herein petitioner) Exhibits "A", "C", "D", "E", "H" and
its sub-markings, "I", "J", and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-
markings, "O", "P" and its sub-markings, "Q" and its sub-markings, "R" and "S" and its sub-markings.

On 20 April 1996, M/V Dibena Win, a vessel of foreign registry owned and operated by private
respondent Bangpai Shipping, Co., allegedly bumped and damaged petitioner’s Power Barge 209 which
was then moored at the Cebu International Port. Thus, on 26 April 1996, petitioner filed before the Cebu
RTC a complaint for damages against private respondent Bangpai Shipping Co., for the alleged damages
caused on petitioner’s power barges.

Thereafter, petitioner filed an Amended Complaint dated 8 July 1996 impleading herein private
respondent Wallem Shipping, Inc., as additional defendant, contending that the latter is a ship agent of
Bangpai Shipping Co. On 18 September 1996, Wallem Shipping, Inc. filed a Motion to Dismiss which was
subsequently denied by public respondent Judge in an Order dated 20 October 1998. Bangpai Shipping
Co. likewise filed a Motion to Dismiss which was also denied by public respondent Judge in an Order
issued on 24 January 2003.

Petitioner, after adducing evidence during the trial of the case, filed a formal offer of evidence before the
lower court on 2 February 2004 consisting of Exhibits "A" to "V" together with the sub-marked portions
thereof. Consequently, private respondents Bangpai Shipping Co. and Wallem Shipping, Inc. filed their
respective objections to petitioner’s formal offer of evidence.

On 16 November 2004, public respondent judge issued the assailed order denying the admission and
excluding from the records petitioner’s Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J" and its
sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings,
"Q" and its sub-markings, "R" and "S" and its sub-markings. According to the court a quo:

The Court finds merit in the objections raised and the motion to strike out filed respectively by the
defendants. The record shows that the plaintiff has been given every opportunity to present the originals
of the Xerox or photocopies of the documents it offered. It never produced the originals. The plaintiff
attempted to justify the admission of the photocopies by contending that "the photocopies offered are
equivalent to the original of the document" on the basis of the Electronic Evidence (Comment to
Defendant Wallem Philippines’ Objections and Motion to Strike). But as rightly pointed out in defendant
Wallem’s Reply to the Comment of Plaintiff, the Xerox copies do not constitute the electronic evidence
defined in Section 1 of Rule 2 of the Rules on Electronic Evidence as follows:

"(h) "Electronic document" refers to information or the representation of information, data, figures,
symbols or other models of written expression, described or however represented, by which a right is
established or an obligation extinguished, or by which a fact may be proved and affirmed, which is
received, recorded, transmitted, stored, processed, retrieved or produced electronically. It includes
digitally signed documents and any printout, readable by sight or other means which accurately reflects
the electronic data message or electronic document. For the purpose of these Rules, the term "electronic
document" may be used interchangeably with "electronic data message".

The information in those Xerox or photocopies was not received, recorded, retrieved or produced
electronically. Moreover, such electronic evidence must be authenticated (Sections 1 and 2, Rule 5,
Rules on Electronic Evidence), which the plaintiff failed to do. Finally, the required Affidavit to prove the
admissibility and evidentiary weight of the alleged electronic evidence (Sec. 1, Rule 9, Ibid) was not
executed, much less presented in evidence.

The Xerox or photocopies offered should, therefore, be stricken off the record. Aside from their being not
properly identified by any competent witness, the loss of the principals thereof was not established by any
competent proof.

xxxx

WHEREFORE, plaintiff’s Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J", and its sub-
markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q"
and its sub-markings, and "R" are hereby DENIED admission and excluded from the records. However,
these excluded evidence should be attached to the records of this case to enable the appellate court to
pass upon them should an appeal be taken from the decision on the merits to be rendered upon the
termination of the trial of this case.

Exhibits "S" and its sub-markings are also DENIED admission for lack of proper identification since the
witness who brought these pictures expressly admitted that he was not present when the photos were
taken and had not knowledge when the same where taken.3

Upon denial of petitioner’s Motion for Reconsideration in an Order dated 20 April 2005, petitioner filed a
Petition for Certiorari under Rule 65 of the Rules of Civil Procedure before the Court of Appeals
maintaining that public respondent Judge acted with grave abuse of discretion amounting to lack or
excess of jurisdiction in denying the admission of its Exhibits "A", "C", "D", "E", "H" and its sub-markings,
"I", "J" and its sub-markings, "K", "L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its
sub-markings, "Q" and its sub-markings, "R", and "S" and its sub-markings.

On 9 November 2005, the appellate court issued a Decision dismissing petitioner’s petition for certiorari,
the pertinent portions of which elucidate:

After a judicious scrutiny of the record of the case on hand, together with the rules and jurisprudence
which are applicable in the premises, we have come up with a finding that the petition for certiorari filed in
this case is not meritorious.

It appears that there is no sufficient showing by the petitioner that the respondent judge acted with grave
abuse of discretion in issuing the assailed orders in Civil Case No. CEB-18662. As what our
jurisprudence tells us, grave abuse of discretion is meant such capricious and whimsical exercise of
judgment as would be equivalent to lack of jurisdiction x x x.

In the case at bench, what has been shown to the contrary by the totality of the record on hand is that the
respondent judge acted correctly and within the pale of his sound discretion in issuing the assailed order,
dated November 16, 2004, in Civil Case No. CEB-18662.

Indeed, it appears that the pieces of petitioner’s documentary evidence which were denied admission by
the respondent judge were not properly identified by any competent witness. As pointed out by the
respondent Bangpai Shipping Company in its comment on the petition filed in this case which reproduces
some excerpts of the testimonies in the court a quo of Atty. Marianito De Los Santos, Engr. Nestor
Enriquez, Jr. and Mr. Rodulfo I. Pagaling, the said witnesses did not have personal knowledge of and
participation in the preparation and making of the pieces of documentary evidence denied admission by
respondent judge x x x. In other words, there was lack of proper identification of said pieces of
documentary evidence. x x x.

Then another ground for denying admission of petitioner’s Exhibits A, C, D, E, H, I, J, K, L, M, N, O, P, Q,

R, and S by the respondent judge is that said pieces of documentary evidence were merely photocopies
of purported documents or papers. There is no gainsaying the fact that the respondent judge acted within
the pale of his discretion when he denied admission of said documentary evidence. Section 3 of Rule 130
of the Rules of Court of the Philippines is very explicit in providing that, when the subject of inquiry are the
contents of documents, no evidence shall be admissible other than the original documents themselves,
except in certain cases specifically so enumerated therein, and the petitioner has not shown that the non-
presentation or non-production of its original documentary pieces of evidence falls under such exceptions.
As aptly pointed out by the respondent judge in the order issued by him on November 16, 2004:

"x x x The record shows that the plaintiff (petitioner herein) has been given every opportunity to present
the originals of the Xerox or photocopies of the documents it offered. It never produced said originals."

So, the petitioner has only itself to blame for the respondent judge’s denial of admission of its
aforementioned documentary evidence.
Of course, the petitioner tries to contend that the photocopies of documents offered by it are equivalent to
the original documents that it sought to offer in evidence, based on the Rules on Electronic Evidence
which were in force and effect since August 1, 2001. However, such a contention is devoid of merit. The
pieces of documentary evidence offered by the petitioner in Civil Case CEB-18662 which were denied
admission by the respondent judge do not actually constitute as electronic evidence as defined in the
Rules on Electronic Evidence. The informations therein were not received, retrieved or produced
electronically. The petitioner has not adequately established that its documentary evidence were
electronic evidence. it has not properly authenticated such evidence as electronic documents,
assuming arguendo that they are. Lastly, the petitioner has not properly established by affidavit pursuant
to Rule 9 of the Rules on Electronic Evidence the admissibility and evidentiary weight of said
documentary evidence.

Thus, by any legal yardstick, it is manifest that the respondent judge did not commit grave abuse of
discretion in denying admission of the aforementioned documentary evidence of petitioner.

But even if it be granted just for the sake of argument that the respondent judge committed an error in
denying the aforementioned documentary evidence of the petitioner, still the petition for certiorari filed in
this case must fail. Such error would at most be only an error of law and not an error of jurisdiction. In Lee
vs. People, 393 SCRA 397, the Supreme Court of the Philippines said that certiorari will not lie in case of
an error of law. x x x.

WHEREFORE, in view of the foregoing premises, judgment is hereby rendered by us DISMISSING the
petition filed in this case and AFFIRMING the assailed orders issued by respondent judge in Civil Case
No. CEB-18662.4

Aggrieved by the aforequoted decision, petitioner filed the instant petition.

The focal point of this entire controversy is petitioner’s obstinate contention that the photocopies it offered
as formal evidence before the trial court are the functional equivalent of their original based on its
inimitable interpretation of the Rules on Electronic Evidence.

Petitioner insists that, contrary to the rulings of both the trial court and the appellate court, the
photocopies it presented as documentary evidence actually constitute electronic evidence based on its
own premise that an "electronic document" as defined under Section 1(h), Rule 2 of the Rules on
Electronic Evidence is not limited to information that is received, recorded, retrieved or produced
electronically. Rather, petitioner maintains that an "electronic document" can also refer to other modes of
written expression that is produced electronically, such as photocopies, as included in the section’s catch-
all proviso: "any print-out or output, readable by sight or other means".

We do not agree.

In order to shed light to the issue of whether or not the photocopies are indeed electronic documents as
contemplated in Republic Act No. 8792 or the Implementing Rules and Regulations of the Electronic
Commerce Act, as well as the Rules on Electronic Evidence, we shall enumerate the following documents
offered as evidence by the petitioner, to wit:

1. Exhibit "A" is a photocopy of a letter manually signed by a certain Jose C. Troyo, with
"RECEIVED" stamped thereon, together with a handwritten date;

2. Exhibit "C" is a photocopy of a list of estimated cost of damages of petitioner’s power barges
207 and 209 prepared by Hopewell Mobile Power Systems Corporation and manually signed by
Messrs. Rex Malaluan and Virgilio Asprer;
 3. Exhibit "D" is a photocopy of a letter manually signed by a certain Nestor G. Enriquez, Jr., with
"RECEIVED" stamped thereon, together with a handwritten notation of the date it was received;

4. Exhibit "E" is a photocopy of a Standard Marine Protest Form which was filled up and
accomplished by Rex Joel C. Malaluan in his own handwriting and signed by him. Portions of the
Jurat were handwritten, and manually signed by the Notary Public;

5. Exhibit "H" is a photocopy of a letter manually signed by Mr. Nestor G. Enriquez, Jr. with
"RECEIVED" stamped thereon, together with a handwritten notation of the date it was received;

6. Exhibit "I" is a photocopy of a computation of the estimated energy loss allegedly suffered by
petitioner which was manually signed by Mr. Nestor G. Enriquez, Jr.;

7. Exhibit "J" is a photocopy of a letter containing the breakdown of the cost estimate, manually
signed by Mr. Nestor G. Enriquez, Jr., with "RECEIVED" stamped thereon, together with a
handwritten notation of the date it was received, and other handwritten notations;

8. Exhibit "K" is a photocopy of the Subpoena Duces Tecum Ad Testificandum written using a
manual typewriter, signed manually by Atty. Ofelia Polo-De Los Reyes, with a handwritten
notation when it was received by the party;

9. Exhibit "L" is a photocopy of a portion of the electricity supply and operation and maintenance
agreement between petitioner and Hopewell, containing handwritten notations and every page
containing three unidentified manually placed signatures;

10. Exhibit "M" is a photocopy of the Notice of Termination with attachments addressed to Rex
Joel C. Malaluan, manually signed by Jaime S. Patinio, with a handwritten notation of the date it
was received. The sub-markings also contain manual signatures and/or handwritten notations;

11. Exhibit "N" is a photocopy of a letter of termination with attachments addressed to VIrgilio
Asprer and manually signed by Jaime S. Patino. The sub-markings contain manual signatures
and/or handwritten notations;

12. Exhibit "O" is the same photocopied document marked as Annex C;

13. Exhibit "P" is a photocopy of an incident report manually signed by Messrs. Malaluan and
Bautista and by the Notary Public, with other handwritten notations;

14. Exhibit "Q" is a photocopy of a letter manually signed by Virgilio Asprer and by a Notary
Public, together with other handwritten notations.

On the other hand, an "electronic document" refers to information or the representation of information,
data, figures, symbols or other models of written expression, described or however represented, by which
a right is established or an obligation extinguished, or by which a fact may be proved and affirmed, which
is received, recorded, transmitted, stored, processed, retrieved or produced electronically. 5 It includes
digitally signed documents and any printout, readable by sight or other means which accurately reflects
the electronic data message or electronic document.6

The rules use the word "information" to define an electronic document received, recorded, transmitted,
stored, processed, retrieved or produced electronically. This would suggest that an electronic document is
relevant only in terms of the information contained therein, similar to any other document which is
presented in evidence as proof of its contents.7 However, what differentiates an electronic document from
a paper-based document is the manner by which the information is processed; clearly, the information
contained in an electronic document is received, recorded, transmitted, stored, processed, retrieved or
produced electronically.

A perusal of the information contained in the photocopies submitted by petitioner will reveal that not all of
the contents therein, such as the signatures of the persons who purportedly signed the documents, may
be recorded or produced electronically. By no stretch of the imagination can a person’s signature affixed
manually be considered as information electronically received, recorded, transmitted, stored, processed,
retrieved or produced. Hence, the argument of petitioner that since these paper printouts were produced
through an electronic process, then these photocopies are electronic documents as defined in the Rules
on Electronic Evidence is obviously an erroneous, if not preposterous, interpretation of the law. Having
thus declared that the offered photocopies are not tantamount to electronic documents, it is consequential
that the same may not be considered as the functional equivalent of their original as decreed in the law.

Furthermore, no error can be ascribed to the court a quo in denying admission and excluding from the
records petitioner’s Exhibits "A", "C", "D", "E", "H" and its sub-markings, "I", "J" and its sub-markings, "K",
"L", "M" and its sub-markings, "N" and its sub-markings, "O", "P" and its sub-markings, "Q" and its sub-
markings, and "R". The trial court was correct in rejecting these photocopies as they violate the best
evidence rule and are therefore of no probative value being incompetent pieces of evidence. 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.8 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. 9The 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.10

Moreover, as mandated under Section 2, Rule 130 of the Rules of Court:

"SECTION 2. Original writing must be produced; exceptions. — There can be no evidence of a writing the
contents of which is the subject of inquiry, other than the original writing itself, except in the following
cases:

(a) When the original has been lost, destroyed, or cannot be produced in court;

(b) When the original is in the possession of the party against whom the evidence is offered, and
the latter fails to produce it after reasonable notice;

(c) When the original is a record or other document in the custody of a public officer;

(d) When the original has been recorded in an existing record a certified copy of which is made
evidence by law;

(e) 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."

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. 11 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;12 (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. 13 However,
in the case at bar, though petitioner insisted in offering the photocopies as documentary evidence, it failed
to establish that such offer was made in accordance with the exceptions as enumerated under the
abovequoted rule. Accordingly, we find no error in the Order of the court a quo denying admissibility of
the photocopies offered by petitioner as documentary evidence.

Finally, it perplexes this Court why petitioner continued to obdurately disregard the opportunities given by
the trial court for it to present the originals of the photocopies it presented yet comes before us now
praying that it be allowed to present the originals of the exhibits that were denied admission or in case the
same are lost, to lay the predicate for the admission of secondary evidence. Had petitioner presented the
originals of the documents to the court instead of the photocopies it obstinately offered as evidence, or at
the very least laid the predicate for the admission of said photocopies, this controversy would not have
unnecessarily been brought before the appellate court and finally to this Court for adjudication. Had it not
been for petitioner’s intransigence, the merits of petitioner’s complaint for damages would have been
decided upon by the trial court long ago. As aptly articulated by the Court of Appeals, petitioner has only
itself to blame for the respondent judge’s denial of admission of its aforementioned documentary
evidence and consequently, the denial of its prayer to be given another opportunity to present the
originals of the documents that were denied admission nor to lay the predicate for the admission of
secondary evidence in case the same has been lost.

WHEREFORE, premises considered, the instant petition is hereby DENIED. The Decision of the Court of
Appeals in CA-G.R. CEB-SP No. 00848, dated 9 November 2005 is hereby AFFIRMED. Costs against
petitioner.

SO ORDERED.

MINITA V. CHICO-NAZARIO
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MA. ALICIA AUSTRIA-MARTINEZ ROMEO J. CALLEJO, SR.

Associate Justice Asscociate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, it is
hereby certified that the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

REYNATO S. PUNO
Chief Justice

Footnotes

1Penned by Associate Justice Isaias P. Dicdican with Associate Justices Ramon M. Bato, Jr. and
Apolinario D. Bruselas, Jr., concurring; rollo, pp. 40-49.

2 Civil Case No. CEB-18662, penned by Judge Ramon. G. Codilla, Jr.; id. at 153-160.

3 RTC Order, pp. 5-6; id. at 54-55.

4 CA Decision, pp. 6-9; id. at 45-48.

5 Rules on Electronic Evidence, Rule 2, Sec. 1, par. (h).

6 Id.

7 Revised Rules on Evidence, Rule 130, Sec. 2.

8 Lee v. People of the Philippines, G.R. No. 159288, 19 October 2004, 440 SCRA 662, 683.

9 Id.

10 Id. citing Seller v. Lucas Films Ltd., 808 F. 2d 1316 (1989).

11 Id. citing RULES OF COURT, Rule 130, Sec. 5.

12 Id. citing United States v. Balzano, 687 Fed. 6; Wright v. Farmers Co-op, 681 F. 2d. 549.

13 Id. citing 32 Corpus Juris Secundum, id. at 773.

Digest 9: NATIONAL POWER CORPORATION vs. HON. RAMON G. CODILLA, JR., Presiding Judge,
RTC of Cebu, Br. 19, BANGPAI SHIPPING COMPANY, and WALLEM SHIPPING, INCORPORATED

G.R. No. 170491 April 4, 2007

NATIONAL POWER CORPORATION, Petitioner,

vs.

HON. RAMON G. CODILLA, JR., Presiding Judge, RTC of Cebu, Br. 19, BANGPAI SHIPPING COMPANY,
and WALLEM SHIPPING, INCORPORATED, Respondents.
Facts: On april 20, 1996, M/V DibenaWinm being operated and owned by the herein private respondent
Bangpai shipping company under its hip agent Wallen shipping Inc., accidentally bumped the power barge
of the herein petitioner, NAPOCOR. The latter filed a complaint for damages on april 26, 1996 before the
sala of the herein public respondent judge. During the presentation of evidence, the petitioner presented
as pieces of evidence Xerox copies, to which such was admitted by the court. Hoever, a motion to strike
out the evidence was filed before the court to which the court ordered that such pieces of evidence be
stricken out of the records but has to be attached to the documents for proper disposition by the appellate
in case of appeal before the latter. The petitioner aver that such documents be admitted for the basic reason
that such is within the purview of the electronic evidence.

Issue: Whether or not thepeices of evidence submitted by the petitioner be regarded within the purview of
the electronic evidence for the court be compelled to admit?

Held: No, the Supreme Court mentioned the following?

Section 1 of Rule 2 of the Rules on Electronic Evidence as follows:

"(h) "Electronic document" refers to information or the representation of information, data, figures, symbols
or other models of written expression, described or however represented, by which a right is established or
an obligation extinguished, or by which a fact may be proved and affirmed, which is received, recorded,
transmitted, stored, processed, retrieved or produced electronically. It includes digitally signed documents
and any printout, readable by sight or other means which accurately reflects the electronic data message
or electronic document. For the purpose of these Rules, the term "electronic document" may be used
interchangeably with "electronic data message".

On the other hand, an "electronic document" refers to information or the representation of information, data,
figures, symbols or other models of written expression, described or however represented, by which a right
is established or an obligation extinguished, or by which a fact may be proved and affirmed, which is
received, recorded, transmitted, stored, processed, retrieved or produced electronically.It includes digitally
signed documents and any printout, readable by sight or other means which accurately reflects the
electronic data message or electronic document.

The rules use the word "information" to define an electronic document received, recorded, transmitted,
stored, processed, retrieved or produced electronically. This would suggest that an electronic document is
relevant only in terms of the information contained therein, similar to any other document which is presented
in evidence as proof of its contents. However, what differentiates an electronic document from a paper-
based document is the manner by which the information is processed; clearly, the information contained in
an electronic document is received, recorded, transmitted, stored, processed, retrieved or produced
electronically.

A perusal of the information contained in the photocopies submitted by petitioner will reveal that not all of
the contents therein, such as the signatures of the persons who purportedly signed the documents, may be
recorded or produced electronically. By no stretch of the imagination can a person’s signature affixed
manually be considered as information electronically received, recorded, transmitted, stored, processed,
retrieved or produced. Hence, the argument of petitioner that since these paper printouts were produced
through an electronic process, then these photocopies are electronic documents as defined in the Rules
on Electronic Evidence is obviously an erroneous, if not preposterous, interpretation of the law. Having thus
declared that the offered photocopies are not tantamount to electronic documents, it is consequential that
the same may not be considered as the functional equivalent of their original as decreed in the law.

Section 2, Rule 130 of the Rules of Court:

"SECTION 2. Original writing must be produced; exceptions. — There can be no evidence of a writing the
contents of which is the subject of inquiry, other than the original writing itself, except in the following cases:

(a) When the original has been lost, destroyed, or cannot be produced in court;

(b) When the original is in the possession of the party against whom the evidence is offered, and the latter
fails to produce it after reasonable notice;

(c) When the original is a record or other document in the custody of a public officer;

(d) When the original has been recorded in an existing record a certified copy of which is made evidence
by law;

(e) 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."

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. 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; (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. However, in the case at bar, though petitioner
insisted in offering the photocopies as documentary evidence, it failed to establish that such offer was made
in accordance with the exceptions as enumerated under the abovequoted rule. Accordingly, we find no
error in the Order of the court a quo denying admissibility of the photocopies offered by petitioner as
documentary evidence.

Indeed the documents presented by the petitioner as evidence before the court were not within the purview
electronic document or electronic data message. It will be highly unacceptable to regard an information
manually written down to be regarded as electronic message. The petitioner cannot aver now to submit
the original copies of the documents since they were given enough time to submit such but they refused to
do so and insist that the photocopies be admitted instead.

The high court denied such petition.

Republic of the Philippines

SUPREME COURT
Manila

EN BANC
G.R. No. L-11937 April 1, 1918

PEDRO SERRANO LAKTAW, plaintiff-appellant,

vs.
MAMERTO PAGLINAWAN, defendant-appellee.

Perfecto Gabriel for appellant.

Felix Ferrer and Crossfield and O'Brien for appellee.

ARAULLO, J.:

In the complaint presented in the Court of First Instance of the City of Manila on February 20, 1915, it was
alleged: (1) That the plaintiff was, according to the laws regulating literary properties, the registered owner
and author of a literary work entitled Diccionario Hispano-Tagalog (Spanish-Tagalog Dictionary)
published in the City of Manila in 1889 by the printing establishment La Opinion, and a copy of which was
attached to the complaint, as Exhibit A; (2) that the defendant, without the consent of the plaintiff,
reproduced said literary work, improperly copied the greater part thereof in the work published by him and
entitled Diccionariong Kastila-Tagalog (Spanish-Tagalog Dictionary), a copy of which was also attached
to the complaint as Exhibit B; (3) that said act of the defendant, which is a violation of article 7 of the Law
of January 10, 1879, on Intellectual Property, caused irreparable injuries to the plaintiff, who was
surprised when, on publishing his new work entitled Diccionario Tagalog-Hispano (Tagalog-Spanish
Dictionary) he learned of the fact, and (4) that the damages occasioned to the plaintiff by the publication
of defendant's work amounted to $10,000. The plaintiff therefore prayed the court to order the defendant
to withdraw from sale all stock of the work herein identified as Exhibit B and to pay the plaintiff the sum of
$10,000, with costs.

The defendant in his answer denied generally each and every allegation of the complaint and prayed the
court to absolve him from the complaint. After trial and the introduction of evidence by both parties, the
court on August 20, 1915, rendered judgment, absolving the defendant from the complaint, but without
making any special pronouncement as to costs. The plaintiff moved for a new trial on the ground that the
judgment was against the law and the weight of the evidence. Said motion having been overruled, plaintiff
excepted to the order overruling it, and appealed the case to the Supreme Court upon a bill of exceptions.

The ground of the decision appealed from is that a comparison of the plaintiff's dictionary with that of the
defendant does not show that the latter is an improper copy of the former, which has been published and
offered for sale by the plaintiff for about twenty-five years or more. For this reason the court held that the
plaintiff had no right of action and that the remedy sought by him could not be granted.55

The appellant contends that court below erred in not declaring that the defendant had reproduced the
plaintiff's work and that the defendant had violated article 7 of the Law of January 10, 1879, on Intellectual
Property.

Said article provides:

Nobody may reproduce another person's work without the owner's consent, even merely to
annotate or add anything to it, or improve any edition thereof.

Therefore, in order that said article may be violated, it is not necessary, as the court below seems to have
understood, that a work should be an improper copy of another work previously published. It is enough
that another's work has been reproduced without the consent of the owner, even though it be only to
annotate, add something to it, or improve any edition thereof.
Upon making a careful and minute comparison of Exhibit A, the dictionary written and published by the
plaintiff, and Exhibit B, written and published by the defendant, and, taking into account the memorandum
(fols. 55 to 59) presented by the defendant, in which he enumerates the words and terms which,
according to him, are in his dictionary but not in that of that of the plaintiff, and viceversa, and the
equivalents or definitions given by the plaintiff, as well as the new Tagalog words which are in the
dictionary of the defendant but not in that of the plaintiff; and considering the notes, Exhibit C, first series,
presented by the plaintiff, in which the terms copied by the defendant from the plaintiff's dictionary are
enumerated in detail and in relation to each letter of the alphabet and which the plaintiff's own words and
terms are set forth, with a summary, at the foot of each group of letters, which shows the number of initial
Spanish words contained in the defendant's dictionary, the words that are his own and the fact that the
remaining ones are truly copied from the plaintiff's dictionary — considering all of these facts, we come to
a conclusion completely different and contrary to that of the trial court, for said evidence clearly shows:

1. That, of the Spanish words in the defendant's dictionary, Exhibit B, which correspond to each letter of
the alphabet, those that are enumerated below have been copied and reproduced from the plaintiff's
dictionary, with the exception of those that are stated to be defendant's own.

Letter Words Defendant's

own

"A" 1,184 231

"B" 364 28

"C" 660 261

"CH" 76 10

"D" 874 231

"E" 880 301

"F" 383 152

"G" 302 111

"H" 57 64

"I" 814 328

"J" 113 25

"K" 11 11

"L" 502 94

"LL" 36 2

"M" 994 225

"N" 259 53

"Ñ" 6 2

"O" 317 67
 "P" 803 358

"Q" 84 11

"R" 847 140

"S" 746 118

"T" 591 147

"U" 107 15

"V" 342 96

"X" 6 6

"Y" 24 4

"Z" 73 17

______ _____

23,560 3,108

Therefore, of the 23,560 Spanish words in the defendant's dictionary, after deducting 17 words
corresponding to the letters K and X (for the plaintiff has no words corresponding to them), only 3,108
words are the defendant's own, or, what is the same thing, the defendant has added only this number of
words to those that are in the plaintiff's dictionary, he having reproduced or copied the remaining 20,452
words.

2. That the defendant also literally reproduced and copied for the Spanish words in his dictionary, the
equivalents, definitions and different meanings in Tagalog, given in plaintiff's dictionary, having
reproduced, as to some words, everything that appears in the plaintiff's dictionary for similar Spanish
words, although as to some he made some additions of his own. Said copies and reproductions are
numerous as may be seen, by comparing both dictionaries and using as a guide or index the defendant's
memorandum and notes, first series, Exhibit C, in which, as to each word, the similarities and differences
between them are set forth in detail.

3. That the printer's errors in the plaintiff's dictionary as to the expression of some words in Spanish as
well as their equivalents in Tagalog are also reproduced, a fact which shows that the defendant, in
preparing his dictionary, literally copied those Spanish words and their meanings and equivalents in
Tagalog from the plaintiff's dictionary.

The trial court has chosen at random, as is stated in the judgment appealed from, some words from said
dictionaries in making the comparison on which its conclusion is based, and consequently the conclusion
reached by it must be inaccurate and not well founded, because said comparison was not complete.

In said judgment some words of the defendant's dictionary are transcribed, the equivalents and meanings
of which in Tagalog are exactly the same as those that are given in the plaintiff's dictionary, with the
exception, as to some of them, of only one acceptation, which is the defendant's own production. And
with respect to the examples used by the defendant in his dictionary, which, according to the judgment,
are not copied from the plaintiff's — the judgment referring to the preposition a (to), in Tagalog sa — it
must be noted that the defendant, in giving in his dictionary an example of said preposition, uses the
expression "voy a Tayabas" (I am going to Tayabas) instead of "voy aBulacan" (I am going to Bulacan),
as the plaintiff does in his dictionary, or what is the same thing, that one speaks of Bulacan while the
other speaks of Tayabas. This does not show that there was no reproduction or copying by the defendant
of the plaintiffs work, but just the opposite, for he who intends to imitate the work of another, tries to make
it appear in some manner that there is some difference between the original and the imitation; and in the
example referred to, with respect to the preposition a (to), that dissimilarity as to the province designated
seems to effect the same purpose.

In the judgment appealed from, the court gives one to understand that the reproduction of another's
dictionary without the owner's consent does not constitute a violation of the Law of Intellectual Property
for the court's idea of a dictionary is stated in the decision itself, as follows:

Dictionaries have to be made with the aid of others, and they are improved by the increase of
words. What may be said of a pasture ground may be said also of a dictionary, i. e., that it should
be common property for all who may desire to write a new dictionary, and the defendant has
come to this pasture ground and taken whatever he needed from it in the exercise of a perfect
right.

Such idea is very erroneous, especially in relation to the Law of Intellectual Property. Danvilla y Collado
the author of the Law of January 10, 1879, on Intellectual Property, which was discussed and approved in
the Spanish Cortes, in his work entitled La Propiedad Intelectual (page 362, 1st ed.) states with respect to
dictionaries and in relation to article 7 of said law:

The protection of the law cannot be denied to the author of a dictionary, for although words are
not the property of anybody, their definitions, the example that explain their sense, and the
manner of expressing their different meanings, may constitute a special work. On this point, the
correctional court of the Seine held, on August 16, 1864, that a dictionary constitutes property,
although some of the words therein are explained by mere definitions expressed in a few lines
and sanctioned by usage, provided that the greater part of the other words contain new
meanings; new meanings which evidently may only belonged to the first person who published
them.

Therefore, the plaintiff, Pedro Serrano, cannot be denied the legal protection which he seeks, and which
is based on the fact that the dictionary published by him in 1889 is his property — said property right
being recognized and having been granted by article 7, in connection with article 2, of said law — and on
the further fact that said work was reproduced by the defendant without his permission.

This law was published in the Gaceta de Madrid on January 12, 1879. It took effect in these Islands six
months after its promulgation or publication, as provided in article 56 thereof. The body of rules for the
execution of said law having been approved by royal decree of September 3, 1880, and published in the
Gaceta de Madrid on September 6, 1880 and extended to the Philippine Islands by royal decree of May
5, 1887, it was in turn published in the Gaceta de Manila, with the approval of the Governor-General of
the Islands, on June 15, 1887. Said law of January 10, 1879, and the rules for its application, were
therefore in force in these Islands when the plaintiff's dictionary was edited and published in 1889.

It appears from the evidence that although the plaintiff did not introduce at the trial the certificate of
registration of his property rights to said work which, according to said rules, was kept in the Central
Government of these Islands, and was issued to him in 1890, the same having been lost during the
revolution against Spain, and no trace relative to the issuance of said certificate being obtainable in the
Division of Archives of the Executive Bureau on account of the loss of the corresponding records, yet as
in the first page of said dictionary the property right of the plaintiff was reserved by means of the words
"Es propiedad del autor" (All rights reserved), taken in connection with the permission granted him by the
Governor-General on November 24, 1889, to print and publish said dictionary, after an examination
thereof by the permanent committee of censors, which examination was made, and the necessary license
granted to him, these facts constitute sufficient proof, under the circumstances of the case, as they have
not been overcome by any evidence on the part of the defendant, showing that said plaintiff did not
comply with the requirements of article 36 of said law, which was the prerequisite to the enjoyment of the
benefits thereof according to the preceding articles, among which is article 7, which is alleged in the
complaint to have been violated by the defendant.

Even considering that said Law of January 10, 1879, ceased to operate in these Islands, upon the
termination of Spanish sovereignty and the substitution thereof by that of the United States of America,
the right of the plaintiff to invoke said law in support of the action instituted by him in the present case
cannot be disputed. His property right to the work Diccionario Hispano-Tagalog (Spanish-Tagalog
Dictionary), published by him and edited in 1889, is recognized and sanctioned by said law, and by virtue
thereof, he had acquired a right of which he cannot be deprived merely because the law is not in force
now or is of no actual application. This conclusion is necessary to protect intellectual property rights
vested after the sovereignty of Spain was superseded by that of the United States. It was so held
superseded by that of the United States. It was so held in the Treaty of Paris of December 10, 1898,
between Spain and the United States, when it declared in article 13 thereof that the rights to literary,
artistic, and industrial properties acquired by the subject of Spain in the Island of Cuba and in Puerto Rico
and the Philippines and other ceded territories, at the time of the exchange of the ratification of said
Treaty, shall continue to be respect.

In addition to what has been said, according to article 428 of the Civil Code, the author of a literary,
scientific, or artistic work, has the right to exploit it and dispose thereof at will. In relation to this right, there
exists the exclusive right of the author, who is the absolute owner of his own work, to produce it,
according to article 2 of the Law of January 10, 1879, and consequently, nobody may reproduce it,
without his permission, not even to annotate or add something to it, or to improve any edition thereof,
according to article 7 of said law. Manresa, in his commentaries on article 429 of the Civil Code (vol. 3, p.
633, 3d ed.) says that the concrete statement of the right to literary properties is found in the legal
doctrine according to which nobody may reproduce another person's work, without the consent of his
owner, or even to annotate or add something to it or to improve any edition thereof. And on page 616 of
said volume, Manresa says the following:

He who writes a book, or carves a statue, or makes an invention, has the absolute right to
reproduce or sell it, just as the owner of land has the absolute right to sell it or its fruits. But while
the owner of land, by selling it and its fruits, perhaps fully realizes all its economic value, by
receiving its benefits and utilities, which are presented, for example, by the price, on the other
hand the author of a book, statue or invention, does not reap all the benefits and advantages of
his own property by disposing of it, for the most important form of realizing the economic
advantages of a book, statue or invention, consists in the right to reproduce it in similar or like
copies, everyone of which serves to give to the person reproducing them all the conditions which
the original requires in order to give the author the full enjoyment thereof. If the author of a book,
after its publication, cannot prevent its reproduction by any person who may want to reproduce it,
then the property right granted him is reduced to a very insignificant thing and the effort made in
the production of the book is no way rewarded.

Indeed the property right recognized and protected by the Law of January 10, 1879, on Intellectual
Property, would be illusory if, by reason of the fact that said law is no longer in force as a consequence of
the change of sovereignty in these Islands, the author of a work, who has the exclusive right to reproduce
it, could not prevent another person from so doing without his consent, and could not enforce this right
through the courts of justice in order to prosecute the violator of this legal provision and the defrauder or
usurper of his right, for he could not obtain the full enjoyment of the book or other work, and his property
right thereto, which is recognized by law, would be reduced, as Manresa says, to an insignificant thing, if
he should have no more right than that of selling his work.

The reproduction by the defendant without the plaintiff's consent of the Diccionario Hispano-
Tagalog (Spanish-Tagalog Dictionary), published and edited in the City of Manila in 1889, by the
publication of the Diccionariong Kastila-Tagalog (Spanish-Tagalog Dictionary), published in the same city
and edited in the press El Progreso in 1913, as appears from Exhibit B, which is attached to the
complaint, has caused the plaintiff, according to the latter, damages in the sum of $10,000. It is true that it
cannot be denied that the reproduction of the plaintiff's book by the defendant has caused damages to the
former, but the amount thereof has not been determined at the trial, for the statement of the plaintiff as to
the proceeds he would have realized if he had printed in 1913 the number of copies of his work which he
stated in his declaration — a fact which he did not do because the defendant had reproduced it — was
not corroborated in any way at the trial and is based upon mere calculations made by the plaintiff himself;
for which reason no pronouncement can be made in this decision as to the indemnification for damages
which the plaintiff seeks to recover.

The plaintiff having prayed, not for a permanent injunction against the defendant, as the plaintiff himself in
his brief erroneously states, but for a judgment ordering the defendant to withdraw from sale all stock of
his work Diccionariong Kastila-Tagalog (Spanish-Tagalog Dictionary), of which Exhibit B is a copy, and
the suit instituted by said plaintiff being proper, we reverse the judgment appealed from and order the
defendant to withdraw from sale, as prayed for in the complaint, all stock of his work above-mentioned,
and to pay the costs of first instance. We make no special pronouncement as to the costs of this instance.
So ordered.

Arellano, C. J., Torres, and Street, JJ., concur.

Carson, and Malcolm, JJ., concur in the result.

Republic of the Philippines

SUPREME COURT
Manila

G.R. No. L-36402 March 16, 1987

FILIPINO SOCIETY OF COMPOSERS, AUTHORS AND PUBLISHERS, INC., plaintiff-appellant,

vs.
BENJAMIN TAN, defendant-appellee.

Lichauco, Picazo & Agcaoili Law Office for plaintiff-appellant.

Ramon A. Nieves for defendant-appellee.

PARAS, J.:

An appeal was made to the Court of Appeals docketed as CA-G.R. No. 46373-R * entitled Filipino Society
of Composers, Authors, Publishers, Inc., Plaintiff-Appellant v. Benjamin Tan, Defendant-Appellee, from
the decision of the Court of First Instance of Manila, Branch VII in Civil Case No. 71222 ** "Filipino
Society of Composers, Authors and Publishers, Inc., Plaintiff v. Benjamin Tan, Defendant," which had
dismissed plaintiffs' complaint without special pronouncement as to costs.

The Court of Appeals, finding that the case involves pure questions of law, certified the same to the
Supreme Court for final determination (Resolution, CA-G.R. No. 46373-R, Rollo, p. 36; Resolution of the
Supreme Court of February 16, 1973 in L-36402, Rollo, p. 38).

The undisputed facts of this case are as follows:

Plaintiff-appellant is a non-profit association of authors, composers and publishers duly organized under
the Corporation Law of the Philippines and registered with the Securities and Exchange Commission.
Said association is the owner of certain musical compositions among which are the songs entitled: "Dahil
Sa Iyo", "Sapagkat Ikaw Ay Akin," "Sapagkat Kami Ay Tao Lamang" and "The Nearness Of You."

On the other hand, defendant-appellee is the operator of a restaurant known as "Alex Soda Foundation
and Restaurant" where a combo with professional singers, hired to play and sing musical compositions to
entertain and amuse customers therein, were playing and singing the above-mentioned compositions
without any license or permission from the appellant to play or sing the same. Accordingly, appellant
demanded from the appellee payment of the necessary license fee for the playing and singing of
aforesaid compositions but the demand was ignored.

Hence, on November 7, 1967, appellant filed a complaint with the lower court for infringement of copyright
against defendant-appellee for allowing the playing in defendant-appellee's restaurant of said songs
copyrighted in the name of the former.

Defendant-appellee, in his answer, countered that the complaint states no cause of action. While not
denying the playing of said copyrighted compositions in his establishment, appellee maintains that the
mere singing and playing of songs and popular tunes even if they are copyrighted do not constitute an
infringement (Record on Appeal, p. 11; Resolution, CA-G.R. NO. 46373-R, Rollo, pp. 32-36) under the
provisions of Section 3 of the Copyright Law (Act 3134 of the Philippine Legislature).

The lower court, finding for the defendant, dismissed the complaint (Record on Appeal, p. 25).

Plaintiff appealed to the Court of Appeals which as already stated certified the case to the Supreme Court
for adjudication on the legal question involved. (Resolution, Court of Appeals, Rollo, p. 36; Resolution of
the Supreme Court of February 18, 1973, Rollo, p. 38).

In its brief in the Court of Appeals, appellant raised the following Assignment of Errors:

THE LOWER COURT ERRED IN HOLDING THAT THE MUSICAL COMPOSITIONS OF THE
APPELLANT WERE IN THE NATURE OF PUBLIC PROPERTY WHEN THEY WERE COPYRIGHTED
OR REGISTERED.

II

THE LOWER COURT ERRED IN HOLDING THAT THE MUSICAL COMPOSITIONS OF THE
APPELLANT WERE PLAYED AND SUNG IN THE SODA FOUNTAIN AND RESTAURANT OF THE
APPELLEE BY INDEPENDENT CONTRACTORS AND ONLY UPON THE REQUEST OF CUSTOMERS.

III

THE LOWER COURT ERRED IN HOLDING THAT THE PLAYING AND SINGING OF COPYRIGHTED
MUSICAL COMPOSITIONS IN THE SODA FOUNTAIN AND RESTAURANT OF THE APPELLEE ARE
NOT PUBLIC PERFORMANCES FOR PROFIT OF THE SAID COMPOSITIONS WITHIN THE MEANING
AND CONTEMPLATION OF THE COPYRIGHT LAW.

IV

THE LOWER COURT ERRED IN NOT HOLDING THAT THE APPELLEE IS LIABLE TO THE
APPELLANT FOR FOUR (4) SEPARATE INFRINGEMENTS. (Brief for Appellant, pp. A and B).

The petition is devoid of merit.

The principal issues in this case are whether or not the playing and signing of musical compositions which
have been copyrighted under the provisions of the Copyright Law (Act 3134) inside the establishment of
the defendant-appellee constitute a public performance for profit within the meaning and contemplation of
the Copyright Law of the Philippines; and assuming that there were indeed public performances for profit,
whether or not appellee can be held liable therefor.

Appellant anchors its claim on Section 3(c) of the Copyright Law which provides:

SEC. 3. The proprietor of a copyright or his heirs or assigns shall have the exclusive
right:

xxx xxx xxx

(c) To exhibit, perform, represent, produce, or reproduce the copyrighted work in any
manner or by any method whatever for profit or otherwise; if not reproduced in copies for
sale, to sell any manuscripts or any record whatsoever thereof;

xxx xxx xxx

It maintains that playing or singing a musical composition is universally accepted as performing the
musical composition and that playing and singing of copyrighted music in the soda fountain and
restaurant of the appellee for the entertainment of the customers although the latter do not pay for the
music but only for the food and drink constitute performance for profit under the Copyright Law (Brief for
the Appellant, pp. 19-25).

We concede that indeed there were "public performances for profit. "

The word "perform" as used in the Act has been applied to "One who plays a musical composition on a
piano, thereby producing in the air sound waves which are heard as music ... and if the instrument he
plays on is a piano plus a broadcasting apparatus, so that waves are thrown out, not only upon the air,
but upon the other, then also he is performing the musical composition." (Buck, et al. v. Duncan, et al.;
Same Jewell La Salle Realty Co., 32F. 2d. Series 367).

In relation thereto, it has been held that "The playing of music in dine and dance establishment which was
paid for by the public in purchases of food and drink constituted "performance for profit" within a Copyright
Law." (Buck, et al. v. Russon No. 4489 25 F. Supp. 317). Thus, it has been explained that while it is
possible in such establishments for the patrons to purchase their food and drinks and at the same time
dance to the music of the orchestra, the music is furnished and used by the orchestra for the purpose of
inducing the public to patronize the establishment and pay for the entertainment in the purchase of food
and drinks. The defendant conducts his place of business for profit, and it is public; and the music is
performed for profit (Ibid, p. 319). In a similar case, the Court ruled that "The Performance in a restaurant
or hotel dining room, by persons employed by the proprietor, of a copyrighted musical composition, for
the entertainment of patrons, without charge for admission to hear it, infringes the exclusive right of the
owner of the copyright." (Herbert v. Shanley Co.; John Church Co. v. Hillard Hotel Co., et al., 242 U.S.
590-591). In delivering the opinion of the Court in said two cases, Justice Holmes elaborated thus:

If the rights under the copyright are infringed only by a performance where money is
taken at the door, they are very imperfectly protected. Performances not different in kind
from those of the defendants could be given that might compete with and even destroy
the success of the monopoly that the law intends the plaintiffs to have. It is enough to say
that there is no need to construe the statute so narrowly. The defendants' performances
are not eleemosynary. They are part of a total for which the public pays, and the fact that
the price of the whole is attributed to a particular item which those present are expected
to order is not important. It is true that the music is not the sole object, but neither is the
 food, which probably could be got cheaper elsewhere. The object is a repast in
surroundings that to people having limited power of conversation or disliking the rival
noise, give a luxurious pleasure not to be had from eating a silent meal. If music did not
pay, it would be given up. If it pays, it pays out of the public's pocket. Whether it pays or
not, the purpose of employing it is profit, and that is enough. (Ibid., p. 594).

In the case at bar, it is admitted that the patrons of the restaurant in question pay only for the food and
drinks and apparently not for listening to the music. As found by the trial court, the music provided is for
the purpose of entertaining and amusing the customers in order to make the establishment more
attractive and desirable (Record on Appeal, p. 21). It will be noted that for the playing and singing the
musical compositions involved, the combo was paid as independent contractors by the appellant (Record
on Appeal, p. 24). It is therefore obvious that the expenses entailed thereby are added to the overhead of
the restaurant which are either eventually charged in the price of the food and drinks or to the overall total
of additional income produced by the bigger volume of business which the entertainment was
programmed to attract. Consequently, it is beyond question that the playing and singing of the combo in
defendant-appellee's restaurant constituted performance for profit contemplated by the Copyright Law.
(Act 3134 amended by P.D. No. 49, as amended).

Nevertheless, appellee cannot be said to have infringed upon the Copyright Law. Appellee's allegation
that the composers of the contested musical compositions waived their right in favor of the general public
when they allowed their intellectual creations to become property of the public domain before applying for
the corresponding copyrights for the same (Brief for Defendant-Appellee, pp. 14-15) is correct.

The Supreme Court has ruled that "Paragraph 33 of Patent Office Administrative Order No. 3 (as
amended, dated September 18, 1947) entitled 'Rules of Practice in the Philippines Patent Office relating
to the Registration of Copyright Claims' promulgated pursuant to Republic Act 165, provides among other
things that an intellectual creation should be copyrighted thirty (30) days after its publication, if made in
Manila, or within the (60) days if made elsewhere, failure of which renders such creation public property."
(Santos v. McCullough Printing Company, 12 SCRA 324-325 [1964]. Indeed, if the general public has
made use of the object sought to be copyrighted for thirty (30) days prior to the copyright application the
law deems the object to have been donated to the public domain and the same can no longer be
copyrighted.

A careful study of the records reveals that the song "Dahil Sa Iyo" which was registered on April 20, 1956
(Brief for Appellant, p. 10) became popular in radios, juke boxes, etc. long before registration (TSN, May
28, 1968, pp. 3-5; 25) while the song "The Nearness Of You" registered on January 14, 1955 (Brief for
Appellant, p. 10) had become popular twenty five (25) years prior to 1968, (the year of the hearing) or
from 1943 (TSN, May 28, 1968, p. 27) and the songs "Sapagkat Ikaw Ay Akin" and "Sapagkat Kami Ay
Tao Lamang" both registered on July 10, 1966, appear to have been known and sang by the witnesses
as early as 1965 or three years before the hearing in 1968. The testimonies of the witnesses at the
hearing of this case on this subject were unrebutted by the appellant. (Ibid, pp. 28; 29 and 30).

Under the circumstances, it is clear that the musical compositions in question had long become public
property, and are therefore beyond the protection of the Copyright Law.

PREMISES CONSIDERED, the appealed decision of the Court of First Instance of Manila in Civil Case
No. 71222 is hereby AFFIRMED.

SO ORDERED.

Fernan (Chairman), Gutierrez, Jr., Padilla, Bidin and Cortes, JJ., concur.

Alampay, J., took no part.

SYLLABI/SYNOPSIS
SECOND DIVISION

[G.R. No. 108946. January 28, 1999]

FRANCISCO G. JOAQUIN, JR., and BJ PRODUCTIONS, INC., petitioners, vs. FRANKLIN DRILON
GABRIEL ZOSA, WILLIAM ESPOSO, FELIPE MEDINA, JR., and CASEY
FRANCISCO, respondents.

DECISION
MENDOZA, J.:

This is a petition for certiorari. Petitioners seek to annul the resolution of the Department of Justice, dated
August 12, 1992, in Criminal Case No. Q-92-27854, entitled Gabriel Zosa, et al. v. City Prosecutor of Quezon City
and Francisco Joaquin, Jr., and its resolution, dated December 3, 1992, denying petitioner Joaquins motion for
reconsideration.
Petitioner BJ Productions, Inc. (BJPI) is the holder/grantee of Certificate of Copyright No. M922, dated January
28, 1971, of Rhoda and Me, a dating game show aired from 1970 to 1977.
On June 28, 1973, petitioner BJPI submitted to the National Library an addendum to its certificate of copyright
specifying the shows format and style of presentation.
On July 14, 1991, while watching television, petitioner Francisco Joaquin, Jr., president of BJPI, saw on RPN
Channel 9 an episode of Its a Date, which was produced by IXL Productions, Inc. (IXL). On July 18, 1991, he wrote
a letter to private respondent Gabriel M. Zosa, president and general manager of IXL, informing Zosa that BJPI had
a copyright to Rhoda and Me and demanding that IXL discontinue airing Its a Date.
In a letter, dated July 19, 1991, private respondent Zosa apologized to petitioner Joaquin and requested a meeting
to discuss a possible settlement. IXL, however, continued airing Its a Date, prompting petitioner Joaquin to send a
second letter on July 25, 1991 in which he reiterated his demand and warned that, if IXL did not comply, he would
endorse the matter to his attorneys for proper legal action.
Meanwhile, private respondent Zosa sought to register IXLs copyright to the first episode of Its a Date for which
it was issued by the National Library a certificate of copyright on August 14, 1991.
Upon complaint of petitioners, an information for violation of P.D. No. 49 was filed against private respondent
Zosa together with certain officers of RPN Channel 9, namely, William Esposo, Felipe Medina, and Casey Francisco,
in the Regional Trial Court of Quezon City where it was docketed as Criminal Case No. 92-27854 and assigned to
Branch 104 thereof. However, private respondent Zosa sought a review of the resolution of the Assistant City
Prosecutor before the Department of Justice.
On August 12, 1992, respondent Secretary of Justice Franklin M. Drilon reversed the Assistant City Prosecutors
findings and directed him to move for the dismissal of the case against private respondents. [1]
Petitioner Joaquin filed a motion for reconsideration, but his motion was denied by respondent Secretary of
Justice on December 3, 1992. Hence, this petition. Petitioners contend that:
1. The public respondent gravely abused his discretion amounting to lack of jurisdiction when he invoked
non-presentation of the master tape as being fatal to the existence of probable cause to prove
infringement, despite the fact that private respondents never raised the same as a controverted issue.
 2. The public respondent gravely abused his discretion amounting to lack of jurisdiction when he arrogated
unto himself the determination of what is copyrightable - an issue which is exclusively within the
jurisdiction of the regional trial court to assess in a proper proceeding.
Both public and private respondents maintain that petitioners failed to establish the existence of probable cause
due to their failure to present the copyrighted master videotape of Rhoda and Me. They contend that petitioner BJPIs
copyright covers only a specific episode of Rhoda and Me and that the formats or concepts of dating game shows are
not covered by copyright protection under P. D. No. 49.

Non-Assignment of Error

Petitioners claim that their failure to submit the copyrighted master videotape of the television show Rhoda and
Mewas not raised in issue by private respondents during the preliminary investigation and, therefore, it was error for
the Secretary of Justice to reverse the investigating prosecutors finding of probable cause on this ground.
A preliminary investigation falls under the authority of the state prosecutor who is given by law the power to
direct and control criminal actions.[2] He is, however, subject to the control of the Secretary of Justice. Thus, Rule 112,
4 of the Revised Rules of Criminal Procedure, provides:

SEC. 4. Duty of investigating fiscal. - If the investigating fiscal finds cause to hold the respondent for
trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or
as shown by the record, an authorized officer, has personally examined the complainant and his witnesses,
that there is reasonable ground to believe that a crime has been committed and that the accused is probably
guilty thereof, that the accused was informed of the complaint and of the evidence submitted against him
and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend
dismissal of the complaint.

In either case, he shall forward the records of the case to the provincial or city fiscal or chief state
prosecutor within five (5) days from his resolution. The latter shall take appropriate action thereon within
ten (10) days from receipt thereof, immediately informing the parties of said action.

No complaint or information may be filed or dismissed by an investigating fiscal without the prior
written authority or approval of the provincial or city fiscal or chief state prosecutor.

Where the investigating assistant fiscal recommends the dismissal of the case but his findings are
reversed by the provincial or city fiscal or chief state prosecutor on the ground that a probable cause exists,
the latter may, by himself, file the corresponding information against the respondent or direct any other
assistant fiscal or state prosecutor to do so, without conducting another preliminary investigation.

If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or
city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information
without conducting another preliminary investigation or to dismiss or move for dismissal of the complaint
or information.

In reviewing resolutions of prosecutors, the Secretary of Justice is not precluded from considering errors,
although unassigned, for the purpose of determining whether there is probable cause for filing cases in court. He must
make his own finding of probable cause and is not confined to the issues raised by the parties during preliminary
investigation. Moreover, his findings are not subject to review unless shown to have been made with grave abuse.

Opinion of the Secretary of Justice

 Petitioners contend, however, that the determination of the question whether the format or mechanics of a show
is entitled to copyright protection is for the court, and not the Secretary of Justice, to make. They assail the following
portion of the resolution of the respondent Secretary of Justice:

[T]he essence of copyright infringement is the copying, in whole or in part, of copyrightable materials as
defined and enumerated in Section 2 of PD. No. 49. Apart from the manner in which it is actually expressed,
however, the idea of a dating game show is, in the opinion of this Office, a non-copyrightable material. Ideas,
concepts, formats, or schemes in their abstract form clearly do not fall within the class of works or materials
susceptible of copyright registration as provided in PD. No. 49.[3] (Emphasis added.)

It is indeed true that the question whether the format or mechanics of petitioners television show is entitled to
copyright protection is a legal question for the court to make. This does not, however, preclude respondent Secretary
of Justice from making a preliminary determination of this question in resolving whether there is probable cause for
filing the case in court. In doing so in this case, he did not commit any grave error.

Presentation of Master Tape

Petitioners claim that respondent Secretary of Justice gravely abused his discretion in ruling that the master
videotape should have been presented in order to determine whether there was probable cause for copyright
infringement. They contend that 20th Century Fox Film Corporation v. Court of Appeals,[4] on which respondent
Secretary of Justice relied in reversing the resolution of the investigating prosecutor, is inapplicable to the case at bar
because in the present case, the parties presented sufficient evidence which clearly establish linkages between the
copyrighted show Rhoda and Me and the infringing TV show Its a Date.[5]
The case of 20th Century Fox Film Corporation involved raids conducted on various videotape outlets allegedly
selling or renting out pirated videotapes. The trial court found that the affidavits of NBI agents, given in support of
the application for the search warrant, were insufficient without the master tape. Accordingly, the trial court lifted the
search warrants it had previously issued against the defendants. On petition for review, this Court sustained the action
of the trial court and ruled:[6]

The presentation of the master tapes of the copyrighted films from which the pirated films were allegedly copied,
was necessary for the validity of search warrants against those who have in their possession the pirated films. The
petitioners argument to the effect that the presentation of the master tapes at the time of application may not be
necessary as these would be merely evidentiary in nature and not determinative of whether or not a probable cause
exists to justify the issuance of the search warrants is not meritorious. The court cannot presume that duplicate or
copied tapes were necessarily reproduced from master tapes that it owns.

The application for search warrants was directed against video tape outlets which allegedly were engaged in the
unauthorized sale and renting out of copyrighted films belonging to the petitioner pursuant to P.D. 49.

The essence of a copyright infringement is the similarity or at least substantial similarity of the purported pirated
works to the copyrighted work. Hence, the applicant must present to the court the copyrighted films to compare
them with the purchased evidence of the video tapes allegedly pirated to determine whether the latter is an
unauthorized reproduction of the former. This linkage of the copyrighted films to the pirated films must be
established to satisfy the requirements of probable cause. Mere allegations as to the existence of the copyrighted
films cannot serve as basis for the issuance of a search warrant.

This ruling was qualified in the later case of Columbia Pictures, Inc. v. Court of Appeals[7] in which it was held:

In fine, the supposed pronunciamento in said case regarding the necessity for the presentation of the master tapes of
the copyrighted films for the validity of search warrants should at most be understood to merely serve as a guidepost
in determining the existence of probable cause in copyright infringement cases where there is doubt as to the true
nexus between the master tape and the pirated copies. An objective and careful reading of the decision in said case
could lead to no other conclusion than that said directive was hardly intended to be a sweeping and inflexible
requirement in all or similar copyright infringement cases. . . . [8]

In the case at bar, during the preliminary investigation, petitioners and private respondents presented written
descriptions of the formats of their respective televisions shows, on the basis of which the investigating prosecutor
ruled:

As may [be] gleaned from the evidence on record, the substance of the television productions complainants RHODA
AND ME and Zosas ITS A DATE is that two matches are made between a male and a female, both single, and the
two couples are treated to a night or two of dining and/or dancing at the expense of the show. The major concepts of
both shows is the same. Any difference appear mere variations of the major concepts.

That there is an infringement on the copyright of the show RHODA AND ME both in content and in the execution
of the video presentation are established because respondents ITS A DATE is practically an exact copy of
complainants RHODA AND ME because of substantial similarities as follows, to wit:

RHODA AND ME ITS A DATE

Set I Set I

a. Unmarried participant a. same

of one gender (searcher) appears on one side of a divider, while three (3) unmarried participants of the other
gender are on the other side of the divider. This arrangement is done to ensure that the searcher does not
see the searchees.

b. Searcher asks a question b. same

to be answered by each of the searchees. The
purpose is to determine who among the
searchees is the most compatible with
the searcher.

c. Searcher speculates on the c. same

match to the searchee.

d. Selection is made by the d. Selection is

use of compute (sic) methods, based on the

or by the way questions are answer of the
answered, or similar methods. Searchees.

Set 2 Set 2

Same as above with the genders same

of the searcher and searchees

interchanged.[9]
Petitioners assert that the format of Rhoda and Me is a product of ingenuity and skill and is thus entitled to
copyright protection. It is their position that the presentation of a point-by-point comparison of the formats of the two
shows clearly demonstrates the nexus between the shows and hence establishes the existence of probable cause for
copyright infringement. Such being the case, they did not have to produce the master tape.
To begin with, the format of a show is not copyrightable. Section 2 of P.D. No. 49, [10] otherwise known as the
DECREE ON INTELLECTUAL PROPERTY, enumerates the classes of work entitled to copyright protection, to wit:

Section 2. The rights granted by this Decree shall, from the moment of creation, subsist with respect to any of the
following classes of works:

(A) Books, including composite and cyclopedic works, manuscripts, directories, and gazetteers;

(B) Periodicals, including pamphlets and newspapers;

(C) Lectures, sermons, addresses, dissertations prepared for oral delivery;

(D) Letters;

(E) Dramatic or dramatico-musical compositions; choreographic works and entertainments in dumb shows, the
acting form of which is fixed in writing or otherwise;

(F) Musical compositions, with or without words;

(G) Works of drawing, painting, architecture, sculpture, engraving, lithography, and other works of art; models or
designs for works of art;

(H) Reproductions of a work of art;

(I) Original ornamental designs or models for articles of manufacture, whether or not patentable, and other works of
applied art;

(J) Maps, plans, sketches, and charts;

(K) Drawings or plastic works of a scientific or technical character;

(L) Photographic works and works produced by a process analogous to photography; lantern slides;

(M) Cinematographic works and works produced by a process analogous to cinematography or any process for
making audio-visual recordings;

(N) Computer programs;

(O) Prints, pictorial illustrations advertising copies, labels, tags, and box wraps;

(P) Dramatizations, translations, adaptations, abridgements, arrangements and other alterations of literary, musical
or artistic works or of works of the Philippine government as herein defined, which shall be protected as provided in
Section 8 of this Decree.

(Q) Collections of literary, scholarly, or artistic works or of works referred to in Section 9 of this Decree which by
reason of the selection and arrangement of their contents constitute intellectual creations, the same to be protected as
such in accordance with Section 8 of this Decree.

(R) Other literary, scholarly, scientific and artistic works.

 This provision is substantially the same as 172 of the INTELLECTUAL PROPERTY CODE OF THE
PHILIPPINES (R.A. No. 8293).[11] The format or mechanics of a television show is not included in the list of protected
works in 2 of P.D. No. 49. For this reason, the protection afforded by the law cannot be extended to cover them.

Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent right granted by the
statute, and not simply a pre-existing right regulated by the statute. Being a statutory grant, the rights are only such
as the statute confers, and may be obtained and enjoyed only with respect to the subjects and by the persons, and on
terms and conditions specified in the statute.[12]

Since . . . copyright in published works is purely a statutory creation, a copyright may be obtained only for a work
falling within the statutory enumeration or description.[13]

Regardless of the historical viewpoint, it is authoritatively settled in the United States that there is no copyright
exceptthat which is both created and secured by act of Congress . . . .[14]

P.D. No. 49, 2, in enumerating what are subject to copyright, refers to finished works and not to concepts. The
copyright does not extend to an idea, procedure, process, system, method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained, illustrated, or embodied in such work. [15] Thus, the new
INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES provides:

Sec. 175. Unprotected Subject Matter. - Notwithstanding the provisions of Sections 172 and 173, no protection shall
extend, under this law, to any idea, procedure, system, method or operation, concept, principle, discovery or mere
data as such, even if they are expressed, explained, illustrated or embodied in a work; news of the day and other
miscellaneous facts having the character of mere items of press information; or any official text of a legislative,
administrative or legal nature, as well as any official translation thereof.

What then is the subject matter of petitioners copyright? This Court is of the opinion that petitioner BJPIs
copyright covers audio-visual recordings of each episode of Rhoda and Me, as falling within the class of works
mentioned in P.D. 49, 2(M), to wit:

Cinematographic works and works produced by a process analogous to cinematography or any process for making
audio-visual recordings;

The copyright does not extend to the general concept or format of its dating game show. Accordingly, by the very
nature of the subject of petitioner BJPIs copyright, the investigating prosecutor should have the opportunity to compare
the videotapes of the two shows.
Mere description by words of the general format of the two dating game shows is insufficient; the presentation
of the master videotape in evidence was indispensable to the determination of the existence of probable cause. As
aptly observed by respondent Secretary of Justice:

A television show includes more than mere words can describe because it involves a whole spectrum of visuals
and effects, video and audio, such that no similarity or dissimilarity may be found by merely describing the
general copyright/format of both dating game shows.[16]

WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED.
Puno, Quisumbing, and Buena, JJ., concur.
Bellosillo, J., (Chairman), no part due to relation to one of the parties.
[1]
Petition, Annex A, p. 4; Rollo, p. 27.
[2]
Sangguniang Bayan of Batac, Ilocos Norte v. Albano, 260 SCRA 561 (1996).
[3]
Petition, Annex B, pp. 1-2; Rollo, pp. 28-29.
[4]
164 SCRA 655 (1988).
[5]
Petition, p. 17; Rollo, p. 18.
[6]
Id., at 663-664.
[7]
261 SCRA 144 (1996).
[8]
Id., 173.
[9]
Petition Annex G; Rollo, pp. 44-45.
[10]
Promulgated on November 14, 1972.
[11]
Effective on January 1, 1998.
SEC. 172. Literary and Artistic Works. - 172.1. Literary and artistic works, hereinafter referred to as works, are
original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall
include in particular:
(a) Books, pamphlets, articles and other writings;
(b) Periodicals and newspapers;
(c) Lectures, sermons, addresses, dissertations prepared for oral delivery whether or not reduced in writing or other
material form;
(d) Letters;
(e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows;
(f) Musical compositions, with or without words;
(g) Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs
for works of art;
(h) Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial
design and other works of applied art;
(i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography,
architecture or science;
(j) Drawings or plastic works of a scientific or technical character;
(k) Photographic works including works produced by a process analogous to photography; lantern slides;
(l) Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or
any process for making audio-visual recordings;
(m) Pictorial illustrations and advertisements;
(n) Computer programs; and
(o) Other literary, scholarly, scientific and artistic works.
[12]
18 C.J.S. 161.
[13]
Id., at 165.
[14]
HORACE G. BALL, LAW OF COPYRIGHT AND LITERARY PROPERTY. 45 (1944).
[15]
NEIL BOORSTYN, COPYRIGHT LAW 25 (1981).
[16]
Comment of Public Respondent, p. 9; Rollo, p. 152.
SYLLABI/SYNOPSIS
SECOND DIVISION

[G.R. No. 108946. January 28, 1999]

FRANCISCO G. JOAQUIN, JR., and BJ PRODUCTIONS, INC., petitioners, vs. FRANKLIN DRILON
GABRIEL ZOSA, WILLIAM ESPOSO, FELIPE MEDINA, JR., and CASEY
FRANCISCO, respondents.

DECISION
MENDOZA, J.:

This is a petition for certiorari. Petitioners seek to annul the resolution of the Department of Justice, dated
August 12, 1992, in Criminal Case No. Q-92-27854, entitled Gabriel Zosa, et al. v. City Prosecutor of Quezon City
and Francisco Joaquin, Jr., and its resolution, dated December 3, 1992, denying petitioner Joaquins motion for
reconsideration.
Petitioner BJ Productions, Inc. (BJPI) is the holder/grantee of Certificate of Copyright No. M922, dated January
28, 1971, of Rhoda and Me, a dating game show aired from 1970 to 1977.
On June 28, 1973, petitioner BJPI submitted to the National Library an addendum to its certificate of copyright
specifying the shows format and style of presentation.
On July 14, 1991, while watching television, petitioner Francisco Joaquin, Jr., president of BJPI, saw on RPN
Channel 9 an episode of Its a Date, which was produced by IXL Productions, Inc. (IXL). On July 18, 1991, he wrote
a letter to private respondent Gabriel M. Zosa, president and general manager of IXL, informing Zosa that BJPI had
a copyright to Rhoda and Me and demanding that IXL discontinue airing Its a Date.
In a letter, dated July 19, 1991, private respondent Zosa apologized to petitioner Joaquin and requested a meeting
to discuss a possible settlement. IXL, however, continued airing Its a Date, prompting petitioner Joaquin to send a
second letter on July 25, 1991 in which he reiterated his demand and warned that, if IXL did not comply, he would
endorse the matter to his attorneys for proper legal action.
Meanwhile, private respondent Zosa sought to register IXLs copyright to the first episode of Its a Date for which
it was issued by the National Library a certificate of copyright on August 14, 1991.
Upon complaint of petitioners, an information for violation of P.D. No. 49 was filed against private respondent
Zosa together with certain officers of RPN Channel 9, namely, William Esposo, Felipe Medina, and Casey Francisco,
in the Regional Trial Court of Quezon City where it was docketed as Criminal Case No. 92-27854 and assigned to
Branch 104 thereof. However, private respondent Zosa sought a review of the resolution of the Assistant City
Prosecutor before the Department of Justice.
On August 12, 1992, respondent Secretary of Justice Franklin M. Drilon reversed the Assistant City Prosecutors
findings and directed him to move for the dismissal of the case against private respondents. [1]
Petitioner Joaquin filed a motion for reconsideration, but his motion was denied by respondent Secretary of
Justice on December 3, 1992. Hence, this petition. Petitioners contend that:
 1. The public respondent gravely abused his discretion amounting to lack of jurisdiction when he invoked
non-presentation of the master tape as being fatal to the existence of probable cause to prove
infringement, despite the fact that private respondents never raised the same as a controverted issue.
2. The public respondent gravely abused his discretion amounting to lack of jurisdiction when he arrogated
unto himself the determination of what is copyrightable - an issue which is exclusively within the
jurisdiction of the regional trial court to assess in a proper proceeding.
Both public and private respondents maintain that petitioners failed to establish the existence of probable cause
due to their failure to present the copyrighted master videotape of Rhoda and Me. They contend that petitioner BJPIs
copyright covers only a specific episode of Rhoda and Me and that the formats or concepts of dating game shows are
not covered by copyright protection under P. D. No. 49.

Non-Assignment of Error

Petitioners claim that their failure to submit the copyrighted master videotape of the television show Rhoda and
Mewas not raised in issue by private respondents during the preliminary investigation and, therefore, it was error for
the Secretary of Justice to reverse the investigating prosecutors finding of probable cause on this ground.
A preliminary investigation falls under the authority of the state prosecutor who is given by law the power to
direct and control criminal actions.[2] He is, however, subject to the control of the Secretary of Justice. Thus, Rule 112,
4 of the Revised Rules of Criminal Procedure, provides:

SEC. 4. Duty of investigating fiscal. - If the investigating fiscal finds cause to hold the respondent for
trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or
as shown by the record, an authorized officer, has personally examined the complainant and his witnesses,
that there is reasonable ground to believe that a crime has been committed and that the accused is probably
guilty thereof, that the accused was informed of the complaint and of the evidence submitted against him
and that he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend
dismissal of the complaint.

In either case, he shall forward the records of the case to the provincial or city fiscal or chief state
prosecutor within five (5) days from his resolution. The latter shall take appropriate action thereon within
ten (10) days from receipt thereof, immediately informing the parties of said action.

No complaint or information may be filed or dismissed by an investigating fiscal without the prior
written authority or approval of the provincial or city fiscal or chief state prosecutor.

Where the investigating assistant fiscal recommends the dismissal of the case but his findings are
reversed by the provincial or city fiscal or chief state prosecutor on the ground that a probable cause exists,
the latter may, by himself, file the corresponding information against the respondent or direct any other
assistant fiscal or state prosecutor to do so, without conducting another preliminary investigation.

If upon petition by a proper party, the Secretary of Justice reverses the resolution of the provincial or
city fiscal or chief state prosecutor, he shall direct the fiscal concerned to file the corresponding information
without conducting another preliminary investigation or to dismiss or move for dismissal of the complaint
or information.

In reviewing resolutions of prosecutors, the Secretary of Justice is not precluded from considering errors,
although unassigned, for the purpose of determining whether there is probable cause for filing cases in court. He must
make his own finding of probable cause and is not confined to the issues raised by the parties during preliminary
investigation. Moreover, his findings are not subject to review unless shown to have been made with grave abuse.
Opinion of the Secretary of Justice

Petitioners contend, however, that the determination of the question whether the format or mechanics of a show
is entitled to copyright protection is for the court, and not the Secretary of Justice, to make. They assail the following
portion of the resolution of the respondent Secretary of Justice:

[T]he essence of copyright infringement is the copying, in whole or in part, of copyrightable materials as
defined and enumerated in Section 2 of PD. No. 49. Apart from the manner in which it is actually expressed,
however, the idea of a dating game show is, in the opinion of this Office, a non-copyrightable material. Ideas,
concepts, formats, or schemes in their abstract form clearly do not fall within the class of works or materials
susceptible of copyright registration as provided in PD. No. 49.[3] (Emphasis added.)

It is indeed true that the question whether the format or mechanics of petitioners television show is entitled to
copyright protection is a legal question for the court to make. This does not, however, preclude respondent Secretary
of Justice from making a preliminary determination of this question in resolving whether there is probable cause for
filing the case in court. In doing so in this case, he did not commit any grave error.

Presentation of Master Tape

Petitioners claim that respondent Secretary of Justice gravely abused his discretion in ruling that the master
videotape should have been presented in order to determine whether there was probable cause for copyright
infringement. They contend that 20th Century Fox Film Corporation v. Court of Appeals,[4] on which respondent
Secretary of Justice relied in reversing the resolution of the investigating prosecutor, is inapplicable to the case at bar
because in the present case, the parties presented sufficient evidence which clearly establish linkages between the
copyrighted show Rhoda and Me and the infringing TV show Its a Date.[5]
The case of 20th Century Fox Film Corporation involved raids conducted on various videotape outlets allegedly
selling or renting out pirated videotapes. The trial court found that the affidavits of NBI agents, given in support of
the application for the search warrant, were insufficient without the master tape. Accordingly, the trial court lifted the
search warrants it had previously issued against the defendants. On petition for review, this Court sustained the action
of the trial court and ruled:[6]

The presentation of the master tapes of the copyrighted films from which the pirated films were allegedly copied,
was necessary for the validity of search warrants against those who have in their possession the pirated films. The
petitioners argument to the effect that the presentation of the master tapes at the time of application may not be
necessary as these would be merely evidentiary in nature and not determinative of whether or not a probable cause
exists to justify the issuance of the search warrants is not meritorious. The court cannot presume that duplicate or
copied tapes were necessarily reproduced from master tapes that it owns.

The application for search warrants was directed against video tape outlets which allegedly were engaged in the
unauthorized sale and renting out of copyrighted films belonging to the petitioner pursuant to P.D. 49.

The essence of a copyright infringement is the similarity or at least substantial similarity of the purported pirated
works to the copyrighted work. Hence, the applicant must present to the court the copyrighted films to compare
them with the purchased evidence of the video tapes allegedly pirated to determine whether the latter is an
unauthorized reproduction of the former. This linkage of the copyrighted films to the pirated films must be
established to satisfy the requirements of probable cause. Mere allegations as to the existence of the copyrighted
films cannot serve as basis for the issuance of a search warrant.

This ruling was qualified in the later case of Columbia Pictures, Inc. v. Court of Appeals[7] in which it was held:
In fine, the supposed pronunciamento in said case regarding the necessity for the presentation of the master tapes of
the copyrighted films for the validity of search warrants should at most be understood to merely serve as a guidepost
in determining the existence of probable cause in copyright infringement cases where there is doubt as to the true
nexus between the master tape and the pirated copies. An objective and careful reading of the decision in said case
could lead to no other conclusion than that said directive was hardly intended to be a sweeping and inflexible
requirement in all or similar copyright infringement cases. . . .[8]

In the case at bar, during the preliminary investigation, petitioners and private respondents presented written
descriptions of the formats of their respective televisions shows, on the basis of which the investigating prosecutor
ruled:

As may [be] gleaned from the evidence on record, the substance of the television productions complainants RHODA
AND ME and Zosas ITS A DATE is that two matches are made between a male and a female, both single, and the
two couples are treated to a night or two of dining and/or dancing at the expense of the show. The major concepts of
both shows is the same. Any difference appear mere variations of the major concepts.

That there is an infringement on the copyright of the show RHODA AND ME both in content and in the execution
of the video presentation are established because respondents ITS A DATE is practically an exact copy of
complainants RHODA AND ME because of substantial similarities as follows, to wit:

RHODA AND ME ITS A DATE

Set I Set I

a. Unmarried participant a. same

of one gender (searcher) appears on one side of a divider, while three (3) unmarried participants of the other
gender are on the other side of the divider. This arrangement is done to ensure that the searcher does not
see the searchees.

b. Searcher asks a question b. same

to be answered by each of the searchees. The
purpose is to determine who among the
searchees is the most compatible with
the searcher.

c. Searcher speculates on the c. same

match to the searchee.

d. Selection is made by the d. Selection is

use of compute (sic) methods, based on the

or by the way questions are answer of the
answered, or similar methods. Searchees.

Set 2 Set 2

Same as above with the genders same

of the searcher and searchees

interchanged.[9]
 Petitioners assert that the format of Rhoda and Me is a product of ingenuity and skill and is thus entitled to
copyright protection. It is their position that the presentation of a point-by-point comparison of the formats of the two
shows clearly demonstrates the nexus between the shows and hence establishes the existence of probable cause for
copyright infringement. Such being the case, they did not have to produce the master tape.
To begin with, the format of a show is not copyrightable. Section 2 of P.D. No. 49, [10] otherwise known as the
DECREE ON INTELLECTUAL PROPERTY, enumerates the classes of work entitled to copyright protection, to wit:

Section 2. The rights granted by this Decree shall, from the moment of creation, subsist with respect to any of the
following classes of works:

(A) Books, including composite and cyclopedic works, manuscripts, directories, and gazetteers;

(B) Periodicals, including pamphlets and newspapers;

(C) Lectures, sermons, addresses, dissertations prepared for oral delivery;

(D) Letters;

(E) Dramatic or dramatico-musical compositions; choreographic works and entertainments in dumb shows, the
acting form of which is fixed in writing or otherwise;

(F) Musical compositions, with or without words;

(G) Works of drawing, painting, architecture, sculpture, engraving, lithography, and other works of art; models or
designs for works of art;

(H) Reproductions of a work of art;

(I) Original ornamental designs or models for articles of manufacture, whether or not patentable, and other works of
applied art;

(J) Maps, plans, sketches, and charts;

(K) Drawings or plastic works of a scientific or technical character;

(L) Photographic works and works produced by a process analogous to photography; lantern slides;

(M) Cinematographic works and works produced by a process analogous to cinematography or any process for
making audio-visual recordings;

(N) Computer programs;

(O) Prints, pictorial illustrations advertising copies, labels, tags, and box wraps;

(P) Dramatizations, translations, adaptations, abridgements, arrangements and other alterations of literary, musical
or artistic works or of works of the Philippine government as herein defined, which shall be protected as provided in
Section 8 of this Decree.

(Q) Collections of literary, scholarly, or artistic works or of works referred to in Section 9 of this Decree which by
reason of the selection and arrangement of their contents constitute intellectual creations, the same to be protected as
such in accordance with Section 8 of this Decree.
(R) Other literary, scholarly, scientific and artistic works.

This provision is substantially the same as 172 of the INTELLECTUAL PROPERTY CODE OF THE
PHILIPPINES (R.A. No. 8293).[11] The format or mechanics of a television show is not included in the list of protected
works in 2 of P.D. No. 49. For this reason, the protection afforded by the law cannot be extended to cover them.

Copyright, in the strict sense of the term, is purely a statutory right. It is a new or independent right granted by the
statute, and not simply a pre-existing right regulated by the statute. Being a statutory grant, the rights are only such
as the statute confers, and may be obtained and enjoyed only with respect to the subjects and by the persons, and on
terms and conditions specified in the statute.[12]

Since . . . copyright in published works is purely a statutory creation, a copyright may be obtained only for a work
falling within the statutory enumeration or description. [13]

Regardless of the historical viewpoint, it is authoritatively settled in the United States that there is no copyright
exceptthat which is both created and secured by act of Congress . . . .[14]

P.D. No. 49, 2, in enumerating what are subject to copyright, refers to finished works and not to concepts. The
copyright does not extend to an idea, procedure, process, system, method of operation, concept, principle, or discovery,
regardless of the form in which it is described, explained, illustrated, or embodied in such work. [15] Thus, the new
INTELLECTUAL PROPERTY CODE OF THE PHILIPPINES provides:

Sec. 175. Unprotected Subject Matter. - Notwithstanding the provisions of Sections 172 and 173, no protection shall
extend, under this law, to any idea, procedure, system, method or operation, concept, principle, discovery or mere
data as such, even if they are expressed, explained, illustrated or embodied in a work; news of the day and other
miscellaneous facts having the character of mere items of press information; or any official text of a legislative,
administrative or legal nature, as well as any official translation thereof.

What then is the subject matter of petitioners copyright? This Court is of the opinion that petitioner BJPIs
copyright covers audio-visual recordings of each episode of Rhoda and Me, as falling within the class of works
mentioned in P.D. 49, 2(M), to wit:

Cinematographic works and works produced by a process analogous to cinematography or any process for making
audio-visual recordings;

The copyright does not extend to the general concept or format of its dating game show. Accordingly, by the very
nature of the subject of petitioner BJPIs copyright, the investigating prosecutor should have the opportunity to compare
the videotapes of the two shows.
Mere description by words of the general format of the two dating game shows is insufficient; the presentation
of the master videotape in evidence was indispensable to the determination of the existence of probable cause. As
aptly observed by respondent Secretary of Justice:

A television show includes more than mere words can describe because it involves a whole spectrum of visuals
and effects, video and audio, such that no similarity or dissimilarity may be found by merely describing the
general copyright/format of both dating game shows.[16]

WHEREFORE, the petition is hereby DISMISSED.

SO ORDERED.
Puno, Quisumbing, and Buena, JJ., concur.
Bellosillo, J., (Chairman), no part due to relation to one of the parties.
[1]
Petition, Annex A, p. 4; Rollo, p. 27.
[2]
Sangguniang Bayan of Batac, Ilocos Norte v. Albano, 260 SCRA 561 (1996).
[3]
Petition, Annex B, pp. 1-2; Rollo, pp. 28-29.
[4]
164 SCRA 655 (1988).
[5]
Petition, p. 17; Rollo, p. 18.
[6]
Id., at 663-664.
[7]
261 SCRA 144 (1996).
[8]
Id., 173.
[9]
Petition Annex G; Rollo, pp. 44-45.
[10]
Promulgated on November 14, 1972.
[11]
Effective on January 1, 1998.
SEC. 172. Literary and Artistic Works. - 172.1. Literary and artistic works, hereinafter referred to as works, are
original intellectual creations in the literary and artistic domain protected from the moment of their creation and shall
include in particular:
(a) Books, pamphlets, articles and other writings;
(b) Periodicals and newspapers;
(c) Lectures, sermons, addresses, dissertations prepared for oral delivery whether or not reduced in writing or other
material form;
(d) Letters;
(e) Dramatic or dramatico-musical compositions; choreographic works or entertainment in dumb shows;
(f) Musical compositions, with or without words;
(g) Works of drawing, painting, architecture, sculpture, engraving, lithography or other works of art; models or designs
for works of art;
(h) Original ornamental designs or models for articles of manufacture, whether or not registrable as an industrial
design and other works of applied art;
(i) Illustrations, maps, plans, sketches, charts and three-dimensional works relative to geography, topography,
architecture or science;
(j) Drawings or plastic works of a scientific or technical character;
(k) Photographic works including works produced by a process analogous to photography; lantern slides;
(l) Audiovisual works and cinematographic works and works produced by a process analogous to cinematography or
any process for making audio-visual recordings;
(m) Pictorial illustrations and advertisements;
(n) Computer programs; and
(o) Other literary, scholarly, scientific and artistic works.
[12]
18 C.J.S. 161.
[13]
Id., at 165.
[14]
HORACE G. BALL, LAW OF COPYRIGHT AND LITERARY PROPERTY. 45 (1944).
[15]
NEIL BOORSTYN, COPYRIGHT LAW 25 (1981).
[16]
Comment of Public Respondent, p. 9; Rollo, p. 152.

[G.R. No. 132604. March 6, 2002]

VENANCIO SAMBAR, doing business under the name and style of CVS
Garment Enterprises, petitioner, vs. LEVI STRAUSS & CO., and LEVI
STRAUSS (PHIL.), INC., respondents.

DECISION
QUISUMBING, J.:

This petition for review on certiorari prays for the reversal of the decision dated January 30,
1998, of the Court of Appeals in CA-G.R. CV No. 51553. That decision affirmed the decision in
Civil Case No. 88-2220 of the Regional Trial Court, Branch 66, Makati City, making permanent
the writ of preliminary injunction, ordering CVS Garment and Industrial Company (CVSGIC) and
petitioner Venancio Sambar to pay private respondents jointly and solidarily the sum of P50,000
as temperate and nominal damages, P10,000 as exemplary damages, and P25,000 as attorneys fees
and litigation costs, and ordering the Director of the National Library to cancel Copyright
Registration No. 1-1998 in the name of Venancio Sambar.
The facts are as follows:
On September 28, 1987, private respondents, through a letter from their legal officer,
demanded that CVS Garment Enterprises (CVSGE) desist from using their stitched arcuate design
on the Europress jeans which CVSGE advertised in the Manila Bulletin.
Atty. Benjamin Gruba, counsel of CVSGE, replied that the arcuate design on the back pockets
of Europress jeans was different from the design on the back pockets of Levis jeans. He further
asserted that his client had a copyright on the design it was using.
Thereafter, private respondents filed a complaint against Sambar, doing business under the
name and style of CVSGE. Private respondents also impleaded the Director of the National
Library. Summons was sent to Sambar in his business address at 161-B Iriga corner Retiro, La
Loma, Quezon City.
Atty. Gruba claimed that he erroneously received the original summons as he mistook it as
addressed to his client, CVSGIC. He returned the summons and the pleadings and manifested in
court that CVSGE, which was formerly doing business in the premises, already stopped operation
and CVSGIC took over CVSGEs occupation of the premises. He also claimed he did not know the
whereabouts of Sambar, the alleged owner of CVSGE.
 Thereafter, private respondents amended their complaint to include CVSGIC. When private
respondents learned the whereabouts of Sambar and CVSGE, the case was revived.
Private respondents alleged in their complaint that Levi Strauss and Co. (LS&Co.), an
internationally known clothing manufacturer, owns the arcuate design trademark which was
registered under U.S. Trademark Registration No. 404, 248 on November 16, 1943, and in the
Principal Register of trademarks with the Philippine Patent Office under Certificate of Registration
No. 20240 issued on October 8, 1973; that through a Trademark Technical Data and Technical
Assistance Agreement with Levi Strauss (Phil.) Inc. (LSPI) in 1972, LS&Co. granted LSPI a non-
exclusive license to use the arcuate trademark in its manufacture and sale of Levis pants, jackets
and shirts in the Philippines; that in 1983, LS&Co. also appointed LSPI as its agent and attorney-
in-fact to protect its trademark in the Philippines; and that sometime in 1987, CVSGIC and
Venancio Sambar, without the consent and authority of private respondents and in infringement
and unfair competition, sold and advertised, and despite demands to cease and desist, continued to
manufacture, sell and advertise denim pants under the brand name Europress with back pockets
bearing a design similar to the arcuate trademark of private respondents, thereby causing confusion
on the buying public, prejudicial to private respondents goodwill and property right.
In its answer, CVSGIC admitted it manufactured, sold and advertised and was still
manufacturing and selling denim pants under the brand name of Europress, bearing a back pocket
design of two double arcs meeting in the middle.However, it denied that there was infringement
or unfair competition because the display rooms of department stores where Levis and Europress
jeans were sold, were distinctively segregated by billboards and other modes of
advertisement. CVSGIC avers that the public would not be confused on the ownership of such
known trademark as Levis, Jag, Europress, etc.. Also, CVSGIC claimed that it had its own original
arcuate design, as evidenced by Copyright Registration No. 1-1998, which was very different and
distinct from Levis design. CVSGIC prayed for actual, moral and exemplary damages by way of
counterclaim.
Petitioner Venancio Sambar filed a separate answer. He denied he was connected with
CVSGIC. He admitted that Copyright Registration No. 1-1998 was issued to him, but he denied
using it. He also said he did not authorize anyone to use the copyrighted design. He counterclaimed
for moral and exemplary damages and payment of attorneys fees.
After hearing, the trial court issued a writ of preliminary injunction enjoining CVSGIC and
petitioner from manufacturing, advertising and selling pants with the arcuate design on their back
pockets. CVSGIC and petitioner did not appear during the October 13 and 27, 1993 hearings, when
they were to present evidence. Consequently, the trial court ruled that they waived their right to
present evidence.
On May 3, 1995, the trial court rendered its decision. The dispositive portion reads:

IN VIEW OF THE FOREGOING, judgment is hereby rendered:

a) making the writ of preliminary injunction permanent;

b) ordering the defendants CVS Garment and Industrial Company and Venancio
Sambar to pay the plaintiffs jointly and solidarily the sum of P50,000.00 as temperate
and nominal damages, the sum of P10,000.00 as exemplary damages, and the sum of
P25,000.00 as attorneys fees and litigation expenses and to pay the costs.

SO ORDERED.[1]

Private respondents moved for a reconsideration praying for the cancellation of petitioners
copyright registration. The trial court granted reconsideration in its July 14, 1995 order, thus:

IN VIEW OF THE FOREGOING, judgment is hereby rendered:

a) making the writ of preliminary injunction permanent;

b) ordering the defendants CVS Garment and Industrial Company and Venancio
Sambar to pay the plaintiffs jointly and solidarily the sum of P50,000.00 as temperate
and nominal damages, the sum of P10,000.00 as exemplary damages, and the sum of
P25,000.00 as attorneys fees and litigation expenses and to pay the costs;

c) ordering the Director of the National Library to cancel the Copyright Registration
No. 1-1998 issued in the name of Venancio Sambar.[2]

Petitioner appealed to the Court of Appeals which on January 30, 1998 decided in favor of
private respondents as follows:

WHEREFORE, the judgment appealed from is AFFIRMED in toto.

SO ORDERED.[3]

In this instant petition, petitioner avers that the Court of Appeals erred in:
I. ...RULING THAT THERE WAS AN INFRINGEMENT OF RESPONDENTS ARCUATE
MARK.
II. ...RULING THAT PETITIONER IS JOINTLY AND SOLIDARILY LIABLE WITH CVS
GARMENTS INDUSTRIAL CORPORATION FOR INFRINGEMENT OF
RESPONDENTS ARCUATE MARK.
III. ...IN ORDERING, THERE BEING NO INFRINGEMENT OR UNFAIR COMPETITION,
THE AWARD OF DAMAGES AND CANCELLATION OF COPYRIGHT
REGISTRATION NO. 1-1998 ISSUED IN THE NAME OF PETITIONER.[4]
Briefly, we are asked to resolve the following issues:
1. Did petitioner infringe on private respondents arcuate design?
2. Must we hold petitioner solidarily liable with CVS Garments Industrial Corporation?
3. Are private respondents entitled to nominal, temperate and exemplary damages and
cancellation of petitioners copyright?
 On the first issue, petitioner claims that he did not infringe on private respondents arcuate
design because there was no colorable imitation which deceived or confused the public. He
cites Emerald Garment Manufacturing Corporation vs. Court of Appeals, G.R. No. 100098, 251
SCRA 600 (1995), as authority. He disagreed with the Court of Appeals that there were confusing
similarities between Levis and Europress arcuate designs, despite the trial courts observation of
differences in them. Petitioner maintains that although the backpocket designs had similarities, the
public was not confused because Levis jeans had other marks not found in Europress
jeans. Further, he says Levis long history and popularity made its trademark easily identifiable by
the public.
In its comment, private respondents aver that the Court of Appeals did not err in ruling that
there was infringement in this case. The backpocket design of Europress jeans, a double arc
intersecting in the middle was the same as Levis mark, also a double arc intersecting at the
center. Although the trial court found differences in the two designs, these differences were not
noticeable. Further, private respondents said, infringement of trademark did not require exact
similarity.Colorable imitation enough to cause confusion among the public, was sufficient for a
trademark to be infringed. Private respondents explained that in a market research they conducted
with 600 respondents, the result showed that the public was confused by Europress
trademark vis the Levis trademark.
We find that the first issue raised by petitioner is factual. The basic rule is that factual
questions are beyond the province of this Court in a petition for review. Although there are
exceptions to this rule, this case is not one of them.[5]Hence, we find no reason to disturb the
findings of the Court of Appeals that Europress use of the arcuate design was an infringement of
the Levis design.
On the second issue, petitioner claims that private respondents did not show that he was
connected with CVSGIC, nor did they prove his specific acts of infringement to make him liable
for damages. Again, this is a factual matter and factual findings of the trial court, concurred in by
the Court of Appeals, are final and binding on this Court.[6] Both the courts below found that
petitioner had a copyright over Europress arcuate design and that he consented to the use of said
design by CVSGIC. We are bound by this finding, especially in the absence of a showing that it
was tainted with arbitrariness or palpable error.[7] It must be stressed that it was immaterial whether
or not petitioner was connected with CVSGIC. What is relevant is that petitioner had a copyright
over the design and that he allowed the use of the same by CVSGIC.
Petitioner also contends that the Court of Appeals erred when it said that he had the burden to
prove that he was not connected with CVSGIC and that he did not authorize anyone to use his
copyrighted design. According to petitioner, these are important elements of private respondents
cause of action against him, hence, private respondents had the ultimate burden of proof.
Pertinent is Section 1, Rule 131 of the Rules of Court[8] which provides that the burden of
proof is the duty of a party to prove the truth of his claim or defense, or any fact in issue by the
amount of evidence required by law. In civil cases, the burden of proof may be on either the
plaintiff or the defendant. It is on the latter, if in his answer he alleges an affirmative defense,
which is not a denial of an essential ingredient in the plaintiffs cause of action, but is one which,
if established, will be a good defense i.e., an avoidance of the claim, which prima facie, the plaintiff
already has because of the defendants own admissions in the pleadings.[9]
 Petitioners defense in this case was an affirmative defense. He did not deny that private
respondents owned the arcuate trademark nor that CVSGIC used on its products a similar arcuate
design. What he averred was that although he owned the copyright on the Europress arcuate
design, he did not allow CVSGIC to use it. He also said he was not connected with CVSGIC. These
were not alleged by private respondents in their pleadings, and petitioner therefore had the burden
to prove these.
Lastly, are private respondents entitled to nominal, temperate and exemplary damages and
cancellation of petitioners copyright?
Petitioner insists that he had not infringed on the arcuate trademark, hence, there was no basis
for nominal and temperate damages. Also, an award of nominal damages precludes an award of
temperate damages. He cites Ventanilla vs. Centeno, G.R. No. L-14333, 1 SCRA 215 (1961) on
this. Thus, he contends, assuming arguendo that there was infringement, the Court of Appeals still
erred in awarding both nominal and temperate damages.
Petitioner likewise said that the grant of exemplary damages was inconsistent with the trial
courts finding that the design of Europress jeans was not similar to Levis design and that no
pecuniary loss was suffered by respondents to entitle them to such damages.
Lastly, petitioner maintains that as Europress arcuate design is not a copy of that of Levis,
citing the trial courts findings that although there are similarities, there are also differences in the
two designs, cancellation of his copyright was not justified.
On this matter, private respondents assert that the lower courts found that there was
infringement and Levis was entitled to damages based on Sections 22 and 23 of RA No. 166
otherwise known as the Trade Mark Law,[10] as amended, which was the law then governing. Said
sections define infringement and prescribe the remedies therefor.Further, private respondents aver
it was misleading for petitioner to claim that the trial court ruled that private respondents did not
suffer pecuniary loss, suggesting that the award of damages was improper. According to the
private respondents, the trial court did not make any such ruling. It simply stated that there was no
evidence that Levis had suffered decline in its sales because of the use of the arcuate design by
Europress jeans. They offer that while there may be no direct proof that they suffered a decline in
sales, damages may still be measured based on a reasonable percentage of the gross sales of the
respondents, pursuant to Section 23 of the Trademark law.[11]
Finally, regarding the cancellation of petitioners copyright, private respondents deny that the
trial court ruled that the arcuate design of Europress jeans was not the same as Levis arcuate design
jeans. On the contrary, the trial court expressly ruled that there was similarity. The cancellation of
petitioners copyright was justified because petitioners copyright can not prevail over respondents
registration in the Principal Register of Bureau of Patents, Trademarks, and Technology
Transfer. According to private respondents, the essence of copyright registration is originality and
a copied design is inherently non-copyrightable. They insist that registration does not confer
originality upon a copycat version of a prior design.
From the foregoing discussion, it is clear that the matters raised by petitioner in relation to the
last issue are purely factual, except the matter of nominal and temperate damages. Petitioner claims
that damages are not due private respondents and his copyright should not be cancelled because
he had not infringed on Levis trademark. Both the trial court and the Court of Appeals found there
was infringement. Thus, the award of damages and cancellation of petitioners copyright are
appropriate.[12] Award of damages is clearly provided in Section 23,[13] while cancellation of
petitioners copyright finds basis on the fact that the design was a mere copy of that of private
respondents trademark. To be entitled to copyright, the thing being copyrighted must be original,
created by the author through his own skill, labor and judgment, without directly copying or
evasively imitating the work of another.[14]
However, we agree with petitioner that it was error for the Court of Appeals to affirm the
award of nominal damages combined with temperate damages[15] by the Regional Trial Court of
Makati. What respondents are entitled to is an award for temperate damages, not nominal
damages. For although the exact amount of damage or loss can not be determined with reasonable
certainty, the fact that there was infringement means they suffered losses for which they are entitled
to moderate damages.[16] We find that the award of P50,000.00 as temperate damages fair and
reasonable, considering the circumstances herein as well as the global coverage and reputation of
private respondents Levi Strauss & Company and Levi Strauss (Phil.), Inc.
WHEREFORE, the decision dated January 30, 1998, of the Court of Appeals, in CA-G.R.
CV No. 51553 AFFIRMING the judgment of the Regional Trial Court of Makati, Branch 66, dated
July 14, 1995, is hereby MODIFIED so that nominal damages are deleted but the amount of
P50,000 is hereby awarded only as TEMPERATE DAMAGES. In all other respects, said
judgment is hereby AFFIRMED, to wit:
a) the writ of preliminary injunction is made permanent;
b) the defendants CVS Garment and Industrial Company and Venancio Sambar are ordered also
to pay the plaintiffs jointly and solidarily the sum of P10,000.00 as exemplary damages, and
the sum of P25,000.00 as attorneys fees and litigation expenses, and to pay the costs; and
c) the Director of the National Library is ordered to cancel the Copyright Registration No. 1-1998
issued in the name of Venancio Sambar.
SO ORDERED.
Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ., concur.

[1]
RTC Records, p. 260.
[2]
Id. at 274-275.
[3]
Rollo, p. 20.
[4]
Id. at 34.
[5]
Salcedo vs. People, G.R. No. 137143, 347 SCRA 499, 504-505 (2000).
[6]
Id. at 1.
[7]
David vs. Manila Bulletin Publishing Company, Inc., G.R. No. 139272, 347 SCRA 68, 69 (2000).
[8]
Section 1, Rule 131: Burden of Proof. - Burden of proof is the duty of a party to present evidence on the facts in
issue necessary to establish his claim or defense by the amount of evidence required by law.
[9]
Paras. Rules of Court 448 (Third Edition, 2000).
[10]
Section 22. Infringement, what constitutes. Any person who shall use, without the consent of the registrant, any
reproduction, counterfeit, copy or colorable imitation of any registered mark or trade-name in connection with the
sale, offering for sale, or advertising of any goods, business or services on or in connection with which such use is
likely to cause confusion or mistake or to deceive purchasers or others as to the source of such business; or reproduce,
counterfeit, copy or colorably imitate any such mark or trade-name and apply such reproduction, counterfeit, copy, or
colorable imitation to labels, signs, prints, packages, wrappers, receptacles or advertisements intended to be used upon
or in connection with such goods, business or services, shall be liable to a civil action by the registrant for any or all
the remedies herein provided.
Section 23. Actions, and damages and injunction for infringement. - Any person entitled to the exclusive use of a
registered mark or trade-name may recover damages in a civil action from any person who infringes his rights, and
the measure of the damages suffered shall be either the reasonable profit which the complaining party would have
made, had the defendant not infringed his said rights, or the profit which the defendant actually made out of the
infringement, or in the event such measure of damages cannot be readily ascertained with reasonable certainty, then
the court may award as damages a reasonable percentage based upon the amount of gross sales of the defendant of the
value of the services in connection with which the mark or trade-name was used in the infringement of the rights of
the complaining party. In cases where actual intent to mislead the public or to defraud the complaining party shall be
shown, in the discretion of the court, the damages may be doubled.