1. REMEDIAL LAW; PLEADINGS AND PRACTICE; USE OF VILE AND DISRESPECTFUL LANGUAGE IN A MOTION FILED WITH THE COURT CONSTITUTES CONTEMPT. — This Court from Carag v. Warden of the Jail of Cagayan 53 Phil. 85, a 1929 decision to Sulit v. Tianco, 115 SCRA 207, has consistently ruled that the contempt power may be availed of by a judge, who is the victim of insulting and offensive epithets. A member of the bar as an officer of the court is not justified to use vile and disrespectful language. If there be such a failing on his part, he cannot complain if he is adjudged guilty of contempt. Where the words appear in a pleading submitted to the Court, that is contempt in facie curiae and therefore may be dealt with in a summary manner (Cf. Yangson v. Salandanan, Adm. Case No. 1347, November 12, 1975, 68 SCRA 42).

2. ID.; ID.; ID.; IMPOSABLE PENALTY CONSIDERING THE PECULIAR CIRCUMSTANCE OF THE CASE AT BAR. — Because of the deepseated ill-will that existed between petitioner and respondent Judge — a fact made manifest by their voluminous pleadings — it would be most difficult for respondent Judge to act with restraint and judiciousness. The power to punish for contempt could then be a manifestation of whim, caprice, or arbitrariness, or something analogous to it. Here, while the words were contumacious, it is hard to resist the conclusion, considering the background of this occurrence that respondent Judge in imposing the ten-day sentence was not duly mindful of the exacting standard that preservation of the dignity of his office not indulging his sense of grievance sets the limits of the authority he is entitled to exercise. It is the view of the Court that under the circumstances the fine imposed should be increased to P500.00.

This Court has been and continues to be committed to the authoritative doctrine that the power to punish for contempt should be exercised on the preservative and not vindictive principle. 1 In deciding this certiorari and prohibition proceeding with a plea for a mandatory preliminary injunction, we do so again.

The immediate cause that resulted in an order of arrest for contumacious conduct arose from an ex-parte motion to have respondent Judge Alejandro E. Sebastian, now retired, inhibited from trying a civil case in the then Court of First Instance of Davao, 16th Judicial District, Branch VIII. The paragraph in such motion that apparently gave offense follows: "That because of certain personal acts or conduct displayed by the Presiding Judge in handling the above case, which the Defendant and her counsel deem as highly irregular, corrupt and a gross misconduct for a Judge to do, the undersigned counsel for Defendant has already filed an Administrative Case against the herein Presiding Judge in the Supreme Court, now docketed therein as ‘Administrative Matter No. 846-CFI, Atty. Amado S. Ceniza v. District Judge Alejandro Sebastian, CFI, Br. VIII, Tagum, DN’, and the Defendant in the above case is one of the material witnesses for the complainant in said Administrative Case; and, that by virtue of these, the bias and prejudice of the Presiding Judge against the Defendant and her counsel in the above case, is intensified and heightened, and consequently the Presiding Judge in the above case, will no longer have that sense of justice, that equanimity of emotion, that detached and unaffected feeling and that disinterested and impartial comportment which all judges ought to have and maintain while hearing and deciding a case before them." 2

As a result, according to the Petition, "respondent Judge herein issued a ‘Warrant for the Arrest’ of the petitioner herein, so that he will be locked-up in jail for having committed, according to said respondent Judge, ‘Direct Contempt’." 3 It was further alleged that copies of such warrants of arrest of petitioner "are now in the hands of several Peace Officers, who are specifically ordered to arrest the herein petitioner wherever found." 4 Then the Petition went on to state: "That firmly believing that these warrants for his arrest issued by the herein Respondent Judge is grossly unlawful and is inspired by the Respondent Judge’s desire for vengeance, hatred and yearning to persecute and destroy the herein Petitioner, the latter had fled from his office and residence at Visayan Village, Tagum, Davao, and dodged arrest by hurriedly and secretly going to various places and ultimately here in Manila, in order to have the chance of filing this Petition for Certiorari and Prohibition with a Writ of Preliminary Mandatory Injunction." 5 After reiterating what for him was the patent illegality of such order for contempt and the warrant of arrest issued in pursuance thereof thus amounting to lack or excess of jurisdiction or at the very least grave abuse of discretion, petitioner prays that there be an immediate prohibition for their enforcement, even prior to declaring them null and void. 6

The Court required respondent to file a comment and issued a temporary restraining order enjoining the enforcement of such warrant of arrest.

Respondent Judge, accordingly, submitted his Comment to the petition. There was a clear admission in such comment that it was the allegation in paragraph 6 of the Ex-Parte Motion to Have Presiding Judge Inhibit Himself from Trying the Case which led to the issuance of the warrant of arrest, petitioner being guilty of direct contempt. Thus: "For calling the respondent `corrupt’ in said motion, the Court issued an Order dated December 20, 1974 holding petitioner guilty of direct contempt and sentenced him to 10 days imprisonment and P200 fine. To enforce the Order, a warrant for the arrest of Atty. Amado Ceniza was issued on December 23, 1974. He could not be arrested, however, because he went into hiding. It is this unserved warrant of arrest and the unexecuted Order holding him guilty of contempt that he questions in this special civil action of Certiorari and Prohibition." 7 For respondent Judge, the punishment for contempt being inherent in all courts, the only question is whether or not he had committed a grave abuse of discretion. That accusation he denied in these words: "He merely exercised his right and power to punish the petitioner for his act or conduct that tended to bring the authority of the Court and the administration of justice into disrepute." 8 He referred to the well-settled doctrines that the use in pleadings of language disrespectful to the court or containing offensive words constitutes direct contempt, amounting as it does to a misbehaviour in the presence of or so near a court or judge as to interrupt the administration of justice. He stressed the point further in this way: "In the instant case, the Court held Atty. Ceniza guilty of direct contempt for stating in his motion for the judge’s inhibition, among others, that he was ‘corrupt’. No self-respecting judge will tolerate such a vile language in a lawyer’s pleading; and punishing such a presumptuous and insolent lawyer can never be termed abuse of power or discretion amounting to lack of jurisdiction correctible by certiorari or prohibition. Under Rule 71 of the Revised Rules of Court, contempt includes ‘disrespect toward the court or judge.’ Mr. Ceniza was plainly guilty of direct contempt." 9

This Court, on the above facts, sustains respondent Judge in finding that there was a direct contempt committed but likewise holds that, conformably to the controlling doctrine that the power to punish for contempt should be exercised on the preservative and not vindictive principle, modifies the judgment by lifting the warrant of arrest but increasing the fine imposed to P500.

1. This Court from Carag v. Warden of the Jail of Cagayan, 10 a 1929 decision, to Sulit v. Tiangco, 11 has consistently ruled that the contempt power may be availed of by a judge, who is the victim of insulting and offensive epithets. A member of the bar as an officer of the court is not justified to use vile and disrespectful language. If there be such a failing on his part, he cannot complain if he is adjudged guilty of contempt. Where the words appear in a pleading submitted to the Court, that is contempt in facie curiae and therefore may be dealt with in a summary manner. 12

2. There are circumstances however that militate in this case against the imposition of imprisonment for ten days. In the comment submitted by respondent Judge, reference was made to an injunction issued by him in a civil case where the client of petitioner Ceniza was the defendant. Then came this portion of such comment: "After the issuance of the injunction, the respondent took steps to settle the case amicably. Before the break-up. the parties were quite close to the respondent and his wife, whom they fondly addressed as tatang and nanang. He succeeded in convincing the defendant that if she no longer liked to live with plaintiff, who is legally married to another woman, at least, she should be agreeable to the division of their properties before they evaporated in a long litigation, eaten up by expenses and enormous attorney’s fees. Before the amicable settlement could be signed, however, the petitioner was able to dissuade the defendant from signing, telling her that all the real estate, businesses, trucks, and vehicles were hers because they were all registered in her name. But the petitioner was aware that the defendant had signed a document wherein the properties that were to be her share were listed, as ‘agreed’ upon between her and the plaintiff. To avoid the effect of this document, the petitioner concocted a false story in the Answer that he prepared and filed that the defendant was forced to sign the document thru intimidation of being killed and her honor exposed by the plaintiff, in the residence of the respondent and with the aid of one Col. Callejo and the Respondent. For this shameless fabrication, derogatory to the integrity and honor of respondent, the petitioner and his client were held guilty of direct contempt of Court and sentenced to 10 days imprisonment and P200 fine." 13 Then it was stated that after petitioner was released from prison, an administrative case was filed against respondent Judge. 14 That led to the ex-parte motion for inhibition where the contemptuous language appeared. It thus appears that because of the deep-seated ill-will that existed between petitioner and respondent Judge — a fact made manifest by their voluminous pleadings — it would be most difficult for respondent Judge to act with restraint and judiciousness. The power to punish for contempt could then be a manifestation of whim, caprice, or arbitrariness, or something analogous to it. 15 Here, while the words were contumacious, it is hard to resist the conclusion, considering the background of this occurrence that respondent Judge in imposing the ten-day sentence was not duly mindful of the exacting standard that preservation of the dignity of his office not indulging his sense of grievance sets the limits of the authority he is entitled to exercise. It is the view of the Court that under the circumstances the fine imposed should be increased to P500.00.

WHEREFORE, certiorari is granted declaring null and void the ten-day sentence and quashing the warrant of arrest. Respondent Judge, or whoever acts in his stead, is prohibited from enforcing such order. The temporary restraining order is made permanent as regards the imposition of the ten-day imprisonment and the serving of the warrant of arrest. The fine imposed should be increased to P500.00. No costs.

Concepcion, Jr., Guerrero, Abad Santos, Escolin and Cuevas, JJ., concur.

Makasiar, J., took no part.



AQUINO, J., concurring:chanrob1es virtual 1aw library

I concur. I think no fine should be imposed. Petitioner already served 10-days’ imprisonment due to a prior contempt order of Judge Sebastian. We dismissed the suspicion charges filed by Judge Sebastian. (87 SCRA 244).

Endnotes:

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1. Cf. Entelera v. Amores, L-41361, March 8, 1976, 70 SCRA 37; Blancaflor v. Raya, L-31399, March 17, 1978, 82 SCRA 148; Calo Jr. v. Tapucar, L-47244, January 16, 1979, 88 SCRA 78; Sulit v. Tiangco, L-35333, July 20, 1982, 115 SCRA 207; Manalad v. De Vega, L-59866, February 22, 1983, 120 SCRA 749; Lipata v. Tutaan, L-61643, September 29, 1983, 124 SCRA 877; Repeque v. Aquilizan, G.R. No. 62979, June 29, 1984.

2. Petition, Annex A, par. 6.

3. Ibid, par. 10.

4. Ibid, par. 11.

5. Ibid, par. 12.

6. Ibid, par. 14 and Prayer.

7. Comment, 5-6.

8. Ibid, 6.

9. Ibid, 8.

10. 53 Phil. 85.

11. L-35333, July 20, 1982, 115 SCRA 207.

12. Cf. Yangson v. Salandanan, Adm. Case No. 1347, November 12, 1975, 68 SCRA 42.

13. Comment, 4.

14. Administrative Case No. 846-CFI, for libel and serious misconduct. After an answer duly filed and an investigation, it was dismissed for failure to prove prima facie case.

15. Cf. People v. Estenzo, L-24522, May 29, 1975, 64 SCRA 211, 214.

1. REMEDIAL LAW; EVIDENCE; WEIGHT AND SUFFICIENCY; POSITIVE IDENTIFICATION BY STATE WITNESS AS CO-CONSPIRATOR. — We perceive no compelling reason to disturb the judgment of conviction. Appellants were positively identified by state witness Victoriano Rosario as co-conspirators in the perpetration of the offense.

2. CRIMINAL LAW; QUALIFYING CIRCUMSTANCES; CONSPIRACY; ATTENDANT IN CASE AT BAR. — The fact that appellants did not enter the victim’s house did not mitigate, much less abate, their criminal responsibility. By standing guard outside the house, each of them performed an indispensable role in the attainment of their common objective. This action on their part, performed to ensure their nefarious design, clearly indicated the existence of conspiracy which justified the lower court in holding each and all of them liable for the felony committed as well as the consequences thereof.

3. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; INCONSISTENCIES ON IMMATERIAL MATTERS; DO NOT IMPAIR CREDIBILITY. — Appellants lay considerable emphasis on the inconsistencies between Rosario’s testimony in open court and the statements in his affidavits. It is thus pointed out that while Rosario stated in his affidavit that he departed for Tubod at 8:00 p.m. of October 30, 1966, in open court he declared that he left his house in Tubod at 1:00 p.m. on October 30. Such discrepancy is too trivial and immaterial to discredit his testimony. It should be pointed out that the robbery itself was perpetrated on October 31, not on October 30. Thus, the time of the witness’ departure for Tubod on October 30, referring, as it does to an immaterial matter, does not impair, much less destroy his testimony. It is a settled rule that a witness may be impeached only on matters which are material, competent, specific and relevant; but not on matters which are immaterial and collateral to the real issue (Underhills’ Criminal Events, 4th Ed, pp. 848-849). What is important is that this witness positively affirmed at the trial those portions of his affidavit wherein he described the individual participation of all the accused in the crime in question.

4. ID.; ID.; CONFESSION OF GUILT; PRESUMED VOLUNTARY; NOT OVERCOME IN CASE AT BAR. — It has been held that a confessant bears the burden of proving that the admissions in his affidavit are involuntary and untrue (People v. Manobo, 18, SCRA 30). Appellants Potestas and Bautista have not successfully discharged such burden.

Invoking the constitutional presumption of innocence which the prosecution allegedly failed to overturn, appellants Nelson Potestas, Agapito Bautista, Buenaventura Tagbacaola and Javier Fernandez seek reversal of the judgment of the then Court of First Instance of Misamis Occidental, sentencing them to suffer the penalty of reclusion perpetua for the crime of robbery with homicide and serious physical injuries.

In the evening of October 31, 1966, Gliceria Tolero Rudines, 63, and her granddaughter Gerarda Rudines, 18, were in their house at Bo. Mangga, Tangub, Misamis Occidental, preparing "bibingka" for the next day, the All Saints Day. At about 7:00 that night, bursts of gunshots rang outside the house. This was followed by shouts ordering them to open the door. When the frightened women refused, the door was forcibly opened with an axe. Four men rushed into the house, even while the firing outside continued. Gliceria ran to the room of her husband, Guillermo Rudines, but before reaching it, she suddenly slumped on the floor, as she cried out, "Mong, Mong, I am hit."cralaw virtua1aw library

At this juncture, Guillermo Rudines, 75, went out of his room and was met by four armed men, one of them holding an axe. When the intruders demanded money from him, he took out the cash he had in his pocket and offered it to them; but they refused to accept it. Instead, they ordered the old man to lie on the floor face down and tied his hands behind his back. Then, using the axe, they broke open the trunks in the house and ransacked the same.

Soon after, one of the intruders dropped the axe on Guillermo’s back, and demanded more money from him. Guillermo told them to look in the "aparador" inside his room. While he was lying on the floor, other members of the group, some armed with pistols and others with long guns, entered the house and joined their companions in ransacking the house.

The marauders left at about 11:00 that night, after taking away money and jewelry valued at about P5,000.00.

After the robbery, relatives and neighbors of the Rudineses arrived. Gliceria was brought to the poblacion for medical assistance; but on the way thereto, she expired.

The following day, Dr. Jesus Abad Conducted an autopsy of the deceased. The doctor described the victim’s injuries as follows:jgc:chanrobles.com.ph

"1. Gunshot wound.

a) Point of entrance at the back of distal third of the right leg.

b) Point of exit at the front of the distal third of the right leg forming a cauliflower wound.

c) The bones of the distal third of the leg were completely fractured.

Cause of death:chanrob1es virtual 1aw library

1) Gunshot wound producing shock

2) Hemorrhage." 1

Dr. Abad also examined Guillermo Rudines and found the following wounds sustained by him:jgc:chanrobles.com.ph

"1. Superficial lineal wound about 1 inch long located at the left scapular area.

2. Pain on pressure at the vertebral column at the level of the 10th thorasic vertebral.

This certifies further that if without complication, it will heal in two (2) weeks." 2

Upon receiving report of the crime that same night, elements of the Tangub Police Force repaired to the house of the victims. When asked by Police Chief Andres Enguito as to the identity of the intruders, neither Guillermo nor Gerarda could name any of the malefactors. They stated however that they could recognize them if they saw them again.

The following day, November 1, the Chief of Police went to the house of one Victoriano Rosario, about 50 meters distant from the victim’s residence, Chief Enguito surmised that Rosario, who was a known police character in the locality, might be able to furnish some information as to the identity of the malefactors.

When Rosario’s wife told the police that her husband had left for Mananao, Tubod, Lanao del Norte on October 28 and would not return home until November 3, the Police Chief became suspicious — he deemed it most unusual for a head of the family to be absent from home on All Saints Day. He immediately ordered that Rosario be fetched from Mananao. When the latter was brought to the Tangub Police Station on the following day, November 2, for investigation, Rosario admitted not only his complicity in the commission of the crime, but also divulged the names of all his sixteen [16] co-conspirators, viz.: Andres Canumay, Proculo Lemon, Victor Baterna, Buenaventura Tagbacaola, Nelson Potestas, Benito Saquin, Eduardo Cabahug, Vicente Mondares, Antonio Abatayo, Agapito Bautista, Ricardo Patihan, Faustino Handugan, Eglecerio Durano, Tente Dimasakay, Javier Fernandez and Jose Duliente.

All of them, except Dimasakay, who had allegedly gone into hiding in the forest of Lanao del Norte, were taken into custody. In the ensuing investigation, Andres Canumay readily admitted his participation in the conspiracy and voluntarily executed an affidavit. 3 At first, Bautista, Lemon, Durano, Mondares, Patihan, Potestas, and Handugan denied any participation in the crime; but upon being confronted with the statements of Rosario and Canumay, they too admitted their culpability. They gave statements which were sworn to before Judge Vicente Baz, Jr. of the Municipal Court of Tangub. However, the five other accused, namely: Victor Baterna, Benito Saquin, Antonio Abatayo, Buenaventura Tagbacaola and Javier Fernandez refused to give any statement. On November 8, all the accused were brought to the scene of the incident where they conducted a reenactment of the crime.

Thereafter, an information for the crime of robbery with homicide and serious physical injuries was filed against the sixteen [16] accused, namely: Victoriano Rosario, Jose Duliente, Andres Canumay, Proculo Lemon, Victor Baterna, Buenaventura Tagbacaola, Nelson Potestas, Benito Saquin, Javier Fernandez, Eduardo Cabahug, Vicente Mondares, Antonio Abatayo, Agapito Bautista, Ricardo Patihan, Faustino Handugan, and Eglecerio Durano.

At the trial, the court, on motion of the prosecution, ordered the discharge of the accused Victoriano Rosario and Jose Duliente to be utilized as state witnesses.

The testimony of Victoriano Rosario is summarized by the Solicitor General as follows:jgc:chanrobles.com.ph

"On October 17, 1966, he (Victoriano Rosario) was asked by the accused Andres Canumay whether Guillermo Rudines was a ‘moneyed man’, which question he answered in the affirmative; that Canumay then requested him to be their guide when they would rob Guillermo Rudines (p. 41, t.s.n., January 20, 1967): that subsequently, on October 30, 1966, he was brought by Andres Canumay to the cockpit of Tubod, Lanao del Norte, where, together with other companions, they hatched a plan to commit the robbery the following day, October 31, 1966; that present in that cockpit conference were the accused Antonio Abatayo, Vicente Mondares, Eduardo Cabahug, Eglecerio Durano, Tinte Dimasakay, Ricardo Patihan, and Andres Canumay; that he was told to inform Victor Baterna and Benito Saquin about the robbery plan and to tell them also to converge in Bo. Silanga at 5:00 o’clock in the afternoon of October 31, 1966; that accordingly, he notified both Benito Saquin and Victor Baterna (pp. 42-45, id.); that the following day, October 31, 1966, at about 4:00 o’clock in the afternoon, he left for Silanga, Misamis Occidental, together with Dado Handugan, Ventura Tagbacaola and Nelson Potestas, arriving thereat at around 5:00 o’clock that same evening; that the group of Benito Saquin later arrived, with the accused Agapito Bautista, Proculo Lemon, and Javier Fernandez; that the last group, which came from Tubod, Lanao del Norte, and composed of Antonio Abatayo, Andres Canumay, Vicente Mondares, Eduardo Cabahug, Eglecerio Durano, Ricardo Patihan and Tinte Dimasakay, arrived at 7:00 o’clock that night; that the men were armed with two Thompsons, an axe, carbines, pistols and knives (pp. 46-62, id.); that from Silanga, the band proceeded to the residence of Guillermo Rudines in Barrio Mangga, Tangub, Misamis Occidental; that as they neared the place, he and Javier Fernandez were left near the school house building because of the fear of the others that as he was known to the Rudines, the latter might recognize him (pp. 54-55, id.); that soon thereafter, Victoriano heard gunshots coming from the direction of the house of Guillermo as well as the breaking of the door of the house; that as the firing continued, he and Fernandez went near the house of Rudines and saw Victor Baterna and Tinti Dimasakay enter said house; that Benito Saquin, Victor Baterna, Andres Canumay, Antonio Abatayo, Vicente Mondares, Eglecerio Durano, Ricardo Patihan, Tinti Dimasakay and Eduardo Cabahug went up the house, while the others remained with him (Victoriano) on the ground (pp. 55-57, id.); that at about 11:00 o’clock, those who went up the house came down and all of them proceeded to the school building and partitioned the loot under a mango tree; that he (Victoriano) did not, however, receive his share, and instead, he was told to go to Tubod the following day in order to get his share, but when he did, his companions were no longer in Tubod, for which reason he never got his share of the loot (pp. 58-60, id.); that the next day, November 1, 1966, he was arrested in Barrio Mananao, Tubod, Lanao del Norte, by a member of the police force of Tangub, Misamis Occidental, and two PC soldiers; and that he was interrogated twice and he confessed to his participation in the crime (pp. 56-58, t.s.n., Feb. 14, 1967)."cralaw virtua1aw library

On the bases of the testimonies of said government witnesses, and of Guillermo Rudines, Gerarda Rudines, Dr. Jesus Abad, Chief of Police Andres Enguito, and Judge Vicente Baz, Jr. of the municipal court of Tangub, as well as the extrajudicial confessions of the accused, the trial court rendered a decision, the dispositive portion of which reads:jgc:chanrobles.com.ph

"WHEREFORE, the accused, Andres Canumay, Proculo Lemon, Victor Baterna, Buenaventura Tagbacaola, Nelson Potestas, Benito Saquin, Javier Fernandez, Eduardo Cabahug, Vicente Mondares, Antonio Abatayo, Agapito Bautista, Ricardo Patihan, Faustino Handugan and Eglecerio Durano, are hereby found guilty beyond reasonable doubt of the crime charged in the information. They are hereby sentenced to suffer the penalty of RECLUSION PERPETUA, with the accessory penalties of the law; to jointly and severally indemnify Guillermo Rudines in the sum of P5,000.00 and the heirs of Gliceria Tolero in the sum of P6,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs."cralaw virtua1aw library

All the accused, except Eduardo Cabahug, interposed an appeal. It appears, however, that Saquin, Mondares, Lemon, Canumay, Handugan, Baterna, Abatayo, Durano and Patihan subsequently withdrew their appeal; and since the judgment as to them had already become final, only the appeals of Nelson Potestas, Agapito Bautista, Buenaventura Tagbacaola and Javier Fernandez remain to be resolved.

We perceive no compelling reason to disturb the judgment of conviction. Appellants were positively identified by state witness Victoriano Rosario as co-conspirators in the perpetration of the offense. In accordance with the plot to rob the Rudineses hatched the previous day at the cockpit of Tubod, said appellants went to Silanga where, as previously agreed upon, they and their co-accused met. From there, they all proceeded to the house of the victims at Bo. Mangga. Appellants Nelson Potestas and Javier Fernandez were armed with pistols, while Buenaventura Tagbacaola and Agapito Bautista carried hunting knives. At the time of the robbery, the four appellants stood guard outside the house, while their co-accused entered the victim’s dwelling. After the robbery, each of said appellants received his corresponding share in the loot.

The fact that appellants did not enter the victims’ house did not mitigate, much less abate, their criminal responsibility. By standing guard outside the house, each of them performed an indispensable role in the attainment of their common objective. This action on their part, performed to ensure the success of their nefarious design, clearly indicated the existence of conspiracy which justified the lower court in holding each and all of them liable for the felony committed as well as the consequences thereof.

Appellants lay considerable emphasis on the inconsistencies between Rosario’s testimony in open court and the statements in his affidavits. It is thus pointed out that while Rosario stated in his affidavit that he departed for Tubod at 8:00 p.m. of October 30, 1966, in open court he declared that he left his house for Tubod at 1:00 p.m. on October 30. Such discrepancy is too trivial and immaterial to discredit his testimony. It should be pointed out that the robbery itself was perpetrated on October 31, not on October 30. Thus, the time of the witness’ departure for Tubod on October 30, referring, as it does to an immaterial matter, does not impair, much less destroy, his testimony.

It is a settled rule that a witness may be impeached only on matters which are material, competent, specific and relevant; but not on matters which are immaterial and collateral to the real issue. 4 What is important is that this witness positively affirmed at the trial those portions of his affidavit wherein he described the individual participation of all the accused in the crime in question. 5

Appellants Potestas and Bautista would repudiate their affidavits of confession for having been allegedly extracted through force and coercion. They claimed that they signed their statements because they were maltreated and tortured by the chief of police. The records, however, reveal a number of significant circumstances strongly negating such pretension.

[1] Their confessions were admittedly signed and sworn to before Judge Vicente Baz, Jr. The latter testified that when he read the contents of the affidavit of Potestas and Bautista, they unhesitatingly affirmed the truth and correctness thereof; that he further asked them if there was any mistake therein and both responded in the negative; and that not one of the confessants complained to him of any maltreatment or torture.

[2] On November 11, all of the accused were brought to Dr. Jesus Abad, municipal health officer of Tangub, for physical examination. At the trial, the doctor attested to his findings that accused "are all in good physical condition" and that "there are no signs of physical injuries inflicted on any of them." 6

[3] As noted by the Solicitor General, "the fact that five of the accused, namely, Antonio Abatayo, Buenaventura Tagbacaola, Victor Baterna, Javier Fernandez, and Benito Saquin did not execute similar confessions disproves the alleged use of force and coercion by the chief of police in securing the confessions of the other nine accused. Why indeed should these nine accused (including Potestas and Bautista) be tortured and maltreated, while five of their co-accused were spared from said maltreatment?"

It has been held that a confessant bears the burden of proving that the admissions in his affidavit are involuntary and untrue. 7 Appellants Potestas and Bautista have not successfully discharged such burden.

WHEREFORE, the judgment appealed from is hereby affirmed, with the modification that the amount awarded to the heirs of the deceased Gliceria Tolero Rudines is hereby increased to P30,000.00. Costs against appellants.

SO ORDERED.

Makasiar, Aquino, Concepcion, Jr., Guerrero, Abad Santos and Cuevas, JJ., concur.

Endnotes:

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1. Exh "N", p. 227, Rec., Vol. I.

2. Exh. "C", p. 228, Rec., id.

3. Exhibit "F."

4. Underhills’ Criminal Events, 4th Ed, pp. 848-849.

5. tsn, p, 30, 50, 53, Feb. 14, 1967.

6. Exhibit "P."

7. People v. Manobo, 18 SCRA 30.

1. CRIMINAL LAW; EXEMPTING CIRCUMSTANCES; COMPULSION OF AN IRRESISTABLE FORCE; DEGREE OF FORCE REQUIRED. — A person who acts under the compulsion of an irresistible force, like one who acts under the impulse or uncontrollable fear of equal or greater injury is exempt from criminal liability because he does not act with freedom. The force must be irresistible to reduce him to a mere instrument who acts not only without will but against his will. The duress, force, fear or intimidation must be present, imminent and impending and of such a nature as to induce a well-grounded apprehension of death of serious bodily harm if the act is not done. A threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity to the accused for escape or self-defense in equal combat (People v. Villanueva, 104 Phil. 450).

2. ID.; ID.; ID.; ID.; NOT MET IN CASE AT BAR. — A perusal of the appellants’ statement of the robbery-rape incident as, summarized in their joint brief, showed that they admitted their participation in the commission of the crime of robbery and rape against Elias Monge and his family on January 7, 1978. Further established were facts inconsistent with appellant’s claim of having acted under the compulsion of an irresistible force and/or under the impulse of an uncontrollable fear of equal or greater injury. The records likewise revealed that on the two occasions Eustaquio Loreno brought Beata Monge to the master’s room and the teacher’s room where he made her open the trunk and the "aparador" with her keys and got the contents which he brought and poured on the floor of the sala, appellant Loreno acted alone, without the threat and assistance of the man in dark sweater. And after the man in the dark sweater consummated his lust on Cristina Monge in the teacher’s room and seeing Cristina Monge lying on the floor, Loreno embraced her and tried to kiss her and touch her private parts.

3. ID.; CONSPIRACY; MAY BE INFERRED AND PROVEN BY ACTS OF THE ACCUSED. — The acts of the appellants, though separately performed from those of their unidentified companions, clearly showed their community of interest and concert of criminal design with their unidentified companions which constituted conspiracy without need of direct proof of the conspiracy itself (people v. Carbonel, 48 Phil. 868). Conspiracy may be inferred and proven by the acts of the accused themselves and when said acts point to joint purpose and concert of action and community of interest which unity of Purpose and concert of action serve to establish the existence of conspiracy (People v. Verzo, 65 SCRA 324), and the degree of actual participation by each of the conspirators is immaterial (People v. Reyes, 17 SCRA 309; People v. Akiram, 18 SCRA 239).

4. ID.; ID.; LIABILITY OF CO-CONSPIRATORS. — Conspiracy having been established, all the conspirators are liable as co-principals regardless of the extent and character of their participation because in contemplation of law, the act of one is the act of all (People v. Chan Lit Wat, 50 Phil. 182; People v. Pareja, 28 SCRA 764).

5. ID.; ROBBERY WITH DOUBLE RAPE; PENALTY. — The foregoing crime of robbery with double rape was committed on January 7, 1978 by more than three persons, all armed, in conspiracy with each other, attended by the aggravating circumstance of band, nighttime and dwelling and is, under P.D. 767, promulgated on August 15, 1975, punishable by death. But, for lack of the required number of votes, the accused should suffer the penalty of reclusion perpetua.

In an information filed before the Court of First Instance of Camarines Sur, Accused Eustaquio Loreno y Malaga and Jimmy Marantal y Londete were charged with the crime of Robbery with Double Rape, committed as follows:jgc:chanrobles.com.ph

"That on or about the 7th of January, 1978, in the Barangay of Magsaysay, Municipality of Libmanan, Province of Camarines Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, together with John Doe, Jose Doe, Richard Doe, Peter Doe, Charlie Doe, and Ricky Doe, who are still at large, armed with firearms, conspiring and confederating together and mutually helping one another, with intent to gain and rob, taking advantage of nighttime to better accomplish their purpose, did then and there wilfully, unlawfully and feloniously assault, attack and use violence and intimidation upon the person of Elias Monge by tying his two hands and the hands of the members of his family and on the occasion hereof, while they were made lying flat on the floor, the herein accused take, rob and carry away, without the consent of said Elias Monge, owner thereof, of the following properties, to wit:chanrob1es virtual 1aw library

One camera with trademark Olympus worth P 400.00

Two birthstones rings worth 700.00

One wedding ring with name ‘MONDING’ 100.00

One pair of earrings heartshape 100.00

Two pieces of necklace gold worth 400.00

Two pieces of mosquito net 70.00

Three pieces of blankets color orange and spotted 200.00

Three men pants and also one cut of cloth 235.50

One beach towel, with decoration 35.00

One aluminum Reynold kettle 30.00

One caserole 15.00

Two pieces of pillow case 12.00

Two cans of rice 70.00

One flashlight Eveready two batteries 30.00

Two bottles of Johnny Walker wine 450.00

Two T-shirts one mark Marlboro and plain white 20.00

Five bags of assorted sizes 200.00

One lady wrist watch Bulova 50.00

One men’s wrist watch Enclock 17 jewels 150.00

One eagle pin US gold 200.00

One baby wallet containing cash 57.00

Three live chickens 30.00

One waterproof jacket reversible 40.00

Cash money in assorted denominations all paper bills 7,000.00

———

TOTAL P10,619.50

all in the total amount of TEN THOUSAND SIX HUNDRED NINETEEN PESOS and FIFTY CENTAVOS (P10,619.50), Philippine Currency, to the damage and prejudice of the owner thereof in the aforementioned amount. That on the occasion thereof, the abovenamed accused, with lewd design, and by means of force, violence and intimidation, did then and there wilfully, unlawfully and feloniously commit sexual intercourse with Monica Monge, a virgin of 16 years old, and with Cristina Monge, all against their will." 1

Upon arraignment, both accused Eustaquio Loreno y Malaga and Jimmy Marantal y Londete entered a plea of not guilty to the crime charged.

After trial, the lower court rendered judgment adverse to the accused, the dispositive portion of which read:jgc:chanrobles.com.ph

"ACCORDINGLY, we find the guilt of the accused Eustaquio Loreno has been established by proof beyond reasonable doubt and hereby find him GUILTY of Robbery with Double Rape, penalized by Par. 5 of Article 294 of the Revised Penal Code. There being present aggravating circumstances in the commission of the offense, Eustaquio Loreno is hereby sentenced to LIFE IMPRISONMENT, the maximum penalty provided by law.

Likewise, the Court finds that the guilt of the accused Jimmy Marantal has been established beyond reasonable doubt and hereby finds him GUILTY of the crime of ROBBERY penalized under Par. 5 of Article 294 of the Revised Penal Code. Jimmy Marantal is sentenced to indeterminate penalty ranging from TWO (2) YEARS and ELEVEN (11) DAYS of prision correccional as minimum to EIGHT (8) YEARS and ONE (1) DAY of prision mayor, in view of the aggravating circumstances present.

Said accused Eustaquio Loreno and Jimmy Marantal shall indemnify jointly and severally Elias Monge in the sum of P10,619.50 without subsidiary imprisonment. In addition, Eustaquio Loreno shall indemnify Monica Monge and Cristina Monge in the sum of P10,000.00 each or a total of P20,000.00 as damages, without subsidiary imprisonment.

The accused herein shall pay one-half of the costs each." 2

The facts of the case as stated by the Solicitor General in his Brief, are as follows:jgc:chanrobles.com.ph

"In the evening of January 7, 1978, Barangay Captain Elias Monge was at his house located at barrio Magsaysay, Libmanan, Camarines Sur. He and his two young daughters, namely: Monica Monge, single, then 14 years old, and Cristina Monge, married, then 22 years old, were preparing to attend the dance to be held in the barrio proper that evening. But they had to wait for a while because his wife, Beata Monge, was still changing the diaper of baby Rachel Baybayon, four-month old daughter of Cristina Monge. The other occupants present in the house that evening were his sons, Mario, then 11 years old, and Nilo, then 13 years old, and their farm helper, also staying with them, by the name of Francisco Fabie. Cristina was then vacationing at her parents’ house. Her husband, Raymundo Baybayon, was in Manila (pp. 2-5, tsn, Oct. 18, 1979 AM; pp. 2-3, tsn, Oct. 22, 1979 AM; pp. 2-4, tsn, Oct. 19, 1979 AM; pp. 2-3, tsn, Oct. 29, 1979 AM; pp. 2-3, tsn, Oct. 29, 1979 AM).

At about 7:40 o’clock that same evening, while he was at the balcony of said house, Francisco Fabie saw at first four men with flashlights approaching. When they came near, he heard one of them call Elias Monge saying that there was a letter from the chief (hepe). Fabie called Elias Monge who was in the sala, informing him that there was a letter from the chief. Two of the visitors, one wearing red clothes and the other in dark sweater, came up the house. When Elias Monge went out to the balcony the man in dark sweater handed to him the letter. Because it was dark to read it, Elias Monge invited the man in dark sweater to come inside the sala. The other man in red clothes posted himself near the post of the balcony (pp. 4-5, tsn, Oct. 19, 1979 AM; pp. 6-7, tsn, Oct. 18, 1979 AM; pp. 4-9, tsn, Oct. 22, 1979 AM; pp. 4-7, tsn, Oct. 29, 1979 AM; pp. 4, 12-13, tsn, Oct. 29, 1979 PM).

When he and the man in dark sweater were inside the sala Elias Monge asked his daughter, Monica to fetch his reading glasses. On reading the letter, Elias Monge and Monica read the following: "Kami mga NPA", which caused Monica to run to her mother, seized with fear, informing her just what she came to know about their visitors. Cristina Monge attempted to run to the kitchen to get a bolo but she was held back by the man in dark sweater who then announced to all those inside not to make any scandal. When Elias Monge turned to look at him, the man in dark sweater poked his gun at him, and ordered all those inside to lie on the floor (pp. 13-14, tsn, Oct. 18, 1979 PM; p. 7, tsn, Oct. 18, 1979 AM; pp. 4, 12-13, tsn, Oct. 29, 1979 AM; pp. 4, 13, 16, tsn, Oct. 29, 1979 PM).

In the meantime, outside at the balcony the man in red clothes asked Fabie for a glass of water, and the latter asked Mario Monge to get the glass of water, but Mario did not obey and instead went to the sala. Hence, Fabie himself went inside the house to fetch the glass of water. But, as he went inside the sala, he noticed the man in red clothes following him. As Fabie reached the door to the sala, the man in red clothes poked his gun on Fabie’s back and pointed a sharp instrument on his neck and then he was pushed to go inside the sala. Once inside the sala, which was lighted, Fabie saw and recognized the man in red clothes to be Eustaquio Loreno. Also Elias Monge and his two daughters, Monica and Cristina, saw and recognized Eustaquio Loreno as he entered the sala as one of the companions of the man in dark sweater. All the occupants of the house were ordered by the man in dark sweater and Loreno to remain lying flat on their stomachs on the floor (pp. 5-6, tsn, Oct. 19, 1979 AM; pp. 10-12, tsn, Oct. 22, 1979 AM; pp. 7-8, tsn, Oct. 18, 1979 AM; pp. 21-22, tsn, Oct. 18, 1979 PM; pp. 5, 17-18, tsn, Oct. 29, 1979 PM; p. 5, tsn, Oct. 29, 1979 AM).

Thereafter, the man in dark sweater instructed Loreno to tie all their victims on the floor. Loreno tied them with rattan. The man in dark sweater cut the baby’s hammock (duyan) and got the ropes with which he and Loreno used to reinforce in tying the victim’s hands together behind their backs. Thereafter, the man in dark sweater instructed Loreno to go downstairs and drive the barking dog away. Loreno held Fabie and brought him downstairs to drive the barking dog away (pp. 8-9, tsn, Oct. 18, 1979 AM; p. 6, tsn, Oct. 19, 1979 AM).

On reaching the corner of the house below the flashlight used by Loreno happened to focus on the person of Jimmy Marantal. Fabie immediately recognized Jimmy Marantal as one of the visitors who remained on the ground as lookouts. Jimmy Marantal beamed his flashlight on the face of Fabie, and seeing the latter, he kicked him (Fabie) on the right side of his rib which caused him to fall on the ground. Marantal kicked Fabie who managed to roll on his side and was hit on his left thigh. After a while, Loreno lifted Fabie bodily from the ground, and brought him back upstairs (pp. 6-7, tsn, Oct. 19, 1979 AM; pp. 13-14, tsn, Oct. 22, 1979 AM).

After Loreno and Fabie returned to the sala, the man in dark sweater got hold of Monica Monge and dragged her up to a room located above the balcony. She tried to resist but she was then still tied. Inside the room, Monica was asked to reveal the whereabouts of her piggy bank savings. She said there was none. He ransacked the room but found none. The man in dark sweater then seized Monica and forcibly removed her pants. Monica resisted and shouted at her parents for help. He boxed and slapped her. Despite her struggle, he was able to remove her panty and then made her lie on the floor near the bed. After undressing himself, he forcibly went on top of her. She kept on struggling and shouting for help, but he succeeded in inserting his organ into her vagina. She felt pain. He proceeded to have sexual intercourse with her. She could not do anything to stop him from consummating his lust as she was still tied. When he was through with her, she noticed blood in her private part (p. 9, tsn, Oct. 18, 1979 AM; p. 7, tsn, Oct. 19, 1979 AM: pp, 5, 14, tsn, Oct. 29, 1979 PM; pp. 5-6, tsn, Oct. 29, 1979 AM).

Below in the sala, Monica Monge’s parents and others heard her shouts for help and the struggle she put up inside the room. Hearing her shouts for help, Loreno menacingly pointed his gun at them, telling them not to rise if they wanted to live. Then Loreno brought Beata Monge first to the masters room and then to the teacher’s room. During these two occasions, he forced Beata Monge to open the aparador and the trunk respectively, with her keys, and he got their contents, which he brought to the sala, holding on to Beata Monge who remained tied. All the things he got from the two rooms were poured on the floor of the sala (pp. 7, 9, tsn, Oct. 19, 1979 AM; pp. 10-11, tsn, Oct. 18, 1979 AM; pp. 7-13, tsn, Oct. 18, 1979 PM; pp. 5-6, tsn, Oct. 29, 1979 PM; pp. 17-19, tsn, Oct. 22, 1979 AM).

Thereafter, the man in dark sweater returned to the sala, dragging along Monica Monge whose hair was dishevelled and was crying, and he made her joined the others on the floor of the sala. He reached for a can of pineapple juice from the aparador in the sala and drank its contents. Not long thereafter, he turned his attention to Cristina Monge, and he dragged her to the room which was then rented by school teacher Miss Olitoquit (who was then in Naga City).

Inside the room, the man in dark sweater forced his lewd designs on her but she resisted and struggled although her hands were still tied behind her back. He boxed her, hitting her on her right eye which caused her to lose consciousness. He then proceeded to satisfy his lust on her. When she regained consciousness, the man in dark sweater returned her shorts. She then realized that he had succeeded in having sexual intercourse with her (pp. 6, 17-19, tsn, Oct. 29, 1979 AM; pp. 7-8, tsn, Oct. 19, 1979 AM; pp. 11-12, tsn, Oct. 18, 1979 AM; pp. 6, 14-15, 18, tsn, Oct. 29, 1979 PM).

While the man in dark sweater and Cristina Monge were still inside the teacher’s room, a third man entered the sala, and he told Loreno to cover their victims on the floor with a mat. Loreno found instead a piece of lawanit with which they covered their victims. The third man proceeded to the kitchen, and when he returned to the sala, he was bringing along some rice. Then, a fourth man entered the sala and he asked from Elias Monge for a cigarette. Elias Monge stood up and told him to get it from his pocket as he was still tied. Reacting to Monge’s reply, the fourth man boxed him, hitting him on his breast and solar plexus which caused him to fall on the floor. Then Loreno asked Elias Monge to accompany him to the house of a nearby neighbor. On reaching the balcony, Elias Monge protested and refused to accompany Loreno who then held Elias Monge by the neck, pointing his gun at him. Beata Monge protested, telling her husband not to go along. Loreno desisted from his plan to go to the nearby neighbor’s house. Elias Monge did not recognize the identities of both the third and fourth men (pp. 12-15, tsn, Oct. 18, 1979 AM; pp. 16-17, 25-26, tsn, Oct. 18, 1979 PM; pp. 12-13, tsn, Oct. 22, 1979 AM; pp. 7, 14-15, tsn, Oct. 29, 1979 AM).

Thereafter Loreno entered the room where Cristina Monge was earlier brought by the man in dark sweater, and he found her still lying on the floor. Loreno embraced her trying to kiss her and touch her private parts. One of the malefactors on the ground called those upstairs to hurry because a man was approaching. Loreno then released Cristina Monge and told her to return to the sala to breastfeed her daughter who was continuously crying. Thereafter, the malefactors went down from the house one by one, bringing along all the things they robbed from their victims. The man in dark sweater returned to the sala and touched the thighs of Cristina Monge, who was already wearing her shorts, and he told them not to tell anybody what happened to them, otherwise he will kill them. And then all the malefactors left the place (pp. 15-16, tsn, Oct. 18, 1979 AM; pp. 16, 18, 19-20, tsn, Oct. 29, 1979 PM).

Soon thereafter, Elias Monge heard Sixto Agapito who was on the ground near the fence of the house calling him, asking if he was going to the dancehall. Elias Monge replied from upstairs that he was not feeling well, and Agapito left. Elias Monge was able to untie himself, and then he also untied the others. Fabie then revealed to him that earlier when he had gone down with Loreno, he (Fabie) saw and recognized Jimmy Marantal as among those left on the ground as lookout for the group that had just robbed them. Cristina and Monica Monge also told their father that they were abused by the man in dark sweater when they were brought inside the rooms. For the rest of the night, they remained on guard and could hardly sleep (pp. 15-16, 17, tsn, Oct. 18, 1979 AM; pp. 10-11, tsn, Oct. 19, 1979 AM; p. 7, tsn, Oct. 29, 1979 PM).

Elias Monge and his family later discovered that they were robbed of their following personal properties: jewelry valued at P1,000.00, two mosquito nets, P70.00; three blankets, P200.00; one caldero of rice, P30.00; one reversible jacket, P40.00; three chickens, P30.00; one camera, P400.00; one beach towel, P35.00; cash in the amount of P6,500.00; and several others, all in the total of P10,305.00, more or less (pp. 4-6, 8, 14-17, tsn, Oct. 22, 1979; pp. 16-17, tsn, Oct. 18, 1979 AM).

Fabie had often seen and had known Loreno because the latter’s daughter married a member of the youth organization in the barrio when he (Fabie) was its president. Elias Monge had already known Loreno whose occupation was catching wild pigs, and the latter used to place bobby traps in his (Monge’s) place to catch pigs, during which occasions Loreno usually slept in his house. Monica Monge and Cristina Monge also had already known Loreno because his daughter married a neighbor near their house. Monica often saw Loreno traverse the playground of the Magsaysay Elementary School where he was studying. Fabie had also known Jimmy Marantal because the latter often attended dances held by the barrio youth organization, and he (Marantal) even married one of its members. He had engaged Marantal in conversations many times (p. 3, tsn, Oct. 19, 1979 AM; pp. 2-3, tsn, Oct. 22, 1979 AM; pp. 2-3, 8-9, tsn, Oct. 29, 1979 AM; pp. 2-3, 7-8, tsn, Oct. 18, 1979 AM; pp. 2-3, 21-22, tsn, Oct. 18, 1979 PM; pp. 2, 8-10, 17-18, tsn, Oct. 29, 1979 PM).

Despite the revelation of her daughters to him that they were sexually abused that fateful evening, Elias Monge forced himself to report the following day, Sunday the robbery-rape incident at the PC detachment in Sipocot, but there was no one to talk there. So he proceeded to the PC headquarters at Camp Tara, bringing along the ropes and rattan which were used by the malefactors in tying him and his family during the robbery-rape incident. He was given a written recommendation from the PC to the hospital with instructions to have himself and his daughter Monica be physically examined. Cristina Monge was informed that there was no need for her to submit for physical examination because she was already married. (pp. 18-19, tsn, Oct. 18, 1979 AM; p. 18; tsn, Oct. 18, 1979 PM; p. 8, tsn., Oct. 29, 1979 PM).

Sgt. Victoriano del Socorro, the chief of the investigation section of the 243rd PC Company, stationed at Tara, Camarines Sur, investigated on January 10, 1978 the robbery-rape incident. He was informed by Barangay Captain Elias Monge that his house was robbed and his two daughters were raped by the robbers in the evening of January 7, 1978 in their house and that he (Monge) was able to identify two of the robbers, mentioning their names as Eustaquio Loreno and Jimmy Marantal of Barrio Calabnigan, Libmanan, Camarines Sur. After Sgt. del Socorro and his team made an ocular inspection of the place on that same day, they proceeded to barrio Calabnigan where they picked up Eustaquio Loreno and Jimmy Marantal and brought them to the PC camp. At the PC camp on January 17, 1978, the two suspects were duly identified upon confrontation as two of the robbers by the above-mentioned barrio captain, his daughters Monica and Cristina Monge, and their helper Fabie. During the investigation, the two suspects refused to give their written statements. Thus, Sgt. del Socorro was able to secure the written statements of Elias Monge, Francisco Fabie, Monica Monge, and Cristina Monge about the robbery-rape incident. Upon being identified both said suspects told their victims if they could just talk and settle the matter, but Elias Monge replied that what they did that evening was an oppression (kaapihan) against him and his family. The two suspects retorted that it was up to him (pp. 19-21, tsn, Oct. 18, 1979 AM; pp. 18-20, tsn, Oct. 18, 1979 PM; pp. 1-5, 6, 8-12, tsn, Oct. 30, 1979 AM).

Dr. Jesus H. Miraflores, resident physician of the Camarines Sur Provincial Hospital at Naga City, examined Elias Monge on January 10, 1978. The X-Ray examination’s result was negative. But the doctor found him to have sustained an external injury which he classified as "resolving hematoma, right cestal region", a close wound, already spread out but in the process of healing, located on the right side of the middle portion of the thorax. He gave Elias Monge a prescription for anti-infection to stop the bleeding as there was still slight bleeding and to subside the swelling. Afterwards he gave the corresponding medical certificate to Elias Monge (Exhibit "A" ; pp. 22-26, tsn, Oct. 29, 1979 AM; p. 19, tsn, Oct. 18, 1979 AM).

Dr. Erlie S. Cabral, another resident physician of the same provincial hospital, examined Monica Monge on January 10, 1978. The doctor did not find any fresh wound on her body, but examining her hymen, she found fresh and incomplete lacerations of said hymen at 3:00 and 9:00 o’clock locations and, inserting her index finger inside her patient’s sex orifice, it easily admitted her forefinger. She had the patient’s vagina smeared for spermatozoa but none was found after laboratory examination. The doctor observed that the lacerations did not reach the base of the hymen but the edges of the lacerated portions were still reddish and slightly swollen. The doctor opined that the lacerations could have been caused by the forcible penetration of a male’s penis into the patient’s vagina. The doctor further explained that the laceration of the hymen heals after five days. She also explained that male spermatozoa stays inside the female vagina at the most for 72 hours. She stated that, admitting there was orgasm during the forcible sexual intercourse, any sperm must have already disappeared when she examined Monica Monge on January 10, 1978 which was already beyond 72 hours since she was raped in the evening of January 7, 1978 (pp. 26-28, 31, 33-34, tsn, Oct. 29, 1979 AM; Exhibit "B"). 3

Appellants Eustaquio Loreno and Jimmy Marantal claimed that they acted under the compulsion of an irresistible force and/or under the impulse of uncontrollable fear of equal or greater injury. They admitted that they were in the house of Elias Monge on the night of January 7, 1978, 4 but they were only forced by a man wearing black sweater and his five companions who claimed to be members of the New People’s Army (NPA), operating in the locality, with the threat that if they did not obey, appellants and their families would be killed. We, however, find the contention untenable.

A person who acts under the compulsion of an irresistible force, like one who acts under the impulse of uncontrollable fear of equal or greater injury is exempt from criminal liability because he does not act with freedom. The force must be irresistible to reduce him to a mere instrument who acts not only without will but against his will. The duress, force, fear or intimidation must be present, imminent and impending and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. A threat of future injury is not enough. The compulsion must be of such a character as to leave no opportunity to the accused for escape or self-defense in equal combat. 5

A perusal of the appellants statement of the robbery-rape incident as summarized in their joint brief (pp. 3-10), showed that they admitted their participation in the commission of the crimes of robbery and rape against Elias Monge and his family on January 7, 1978. Further established were facts inconsistent with appellant s claim of having acted under the compulsion of an irresistible force and/or under the impulse of an uncontrollable fear of equal or greater injury, to wit:chanrob1es virtual 1aw library

1. Appellant Eustaquio Loreno was armed with a short firearm when he and the man in dark sweater went up the house of Elias Monge. While inside the house, Loreno pointed the gun to the victims which enabled the malefactors to ransack the house (p. 38, tsn, Oct. 30, 1979 PM).

2. When Eustaquio Loreno and the man in dark sweater reached the balcony, Loreno positioned himself next to the post in the balcony, while the man in dark sweater delivered the letter to Elias Monge. Loreno admitted that, without prior instructions, he immediately positioned himself near the post of the balcony (p. 10, tsn, Id.), an act which showed his voluntary participation in the criminal acts.

3. Eustaquio Loreno himself tied the victim with rattan and thereafter, with ropes of the hammock. Loreno in fact admitted that he was the one who furnished the rattan which he got from inside the house (pp. 14-15, tsn, Id.).

4. When Monica Monge was struggling and shouting for help from inside the room where she was earlier dragged by the man in dark sweater, Loreno’s immediate reaction was to point his gun to the victims who were then lying on the floor, telling them not to rise if they wanted to live (p. 38, tsn, Id.).

The records likewise revealed that on the two occasions Eustaquio Loreno brought Beata Monge to the master’s room and the teacher’s room where he made her open the trunk and the "aparador" with her keys and got the contents which he brought and poured on the floor of the sala, appellant Loreno acted alone, without the threat and assistance of the man in dark sweater. And after the man in dark sweater consummated his lust on Cristina Monge in the teacher’s room and seeing Cristina Monge still lying on the floor, Loreno embraced her and tried to kiss and touch her private parts.

When Eustaquio Loreno and Francisco Fabie went downstairs to drive the barking dog away, the flashlight of Loreno happened to be focused on the face of Jimmy Marantal who in turn beamed his flashlight on the approaching Fabie. Upon seeing Fabie, Jimmy Marantal kicked the former twice causing him (Fabie) to fall to the ground. Marantal’s reaction towards Fabie was due to the fact that Fabie had recognized him and the blows which he gave to Fabie who was still tied at the moment was to serve as a warning to Fabie not to report his presence and participation in the robbery-rape incident to the authorities.

Jimmy Marantal, who was standing at the gate of the house below, must have heard the shouts of Monica Monge for help and must have known by then that Monica Monge was being abused by his two companions who earlier went up the house. As a "lookout" or guard, Jimmy Marantal gave his companions effective means and encouragement to commit the crimes of robbery and rape. There was no showing that Jimmy Marantal raised a voice of protest or did an act to prevent the commission of the crimes.

All these demonstrated the voluntary participation and the conspiracy of the appellants. The foregoing acts, though separately performed from those of their unidentified companions, clearly showed their community of interest and concert of criminal design with their unidentified companions which constituted conspiracy without the need of direct proof of the conspiracy itself. 6 Conspiracy may be inferred and proven by the acts of the accused themselves and when said acts point to joint purpose and concert of action and community of interest, which unity of purpose and concert of action serve to establish the existence of conspiracy, 7 and the degree of actual participation by each of the conspirators is immaterial. 8 Conspiracy having been established, all the conspirators are liable as co-principals regardless of the extent and character of their participation because in contemplation of law, the act of one is the act of all. 9

The foregoing crime of robbery with double rape was committed on January 7, 1978 by more than three persons, all armed, 10 in conspiracy with each other, attended by the aggravating circumstances of band, nighttime and dwelling and is, under P.D. 767, promulgated on August 15, 1975, punishable by death. But, for lack of the required number of votes, the accused should suffer the penalty of reclusion perpetua.

WHEREFORE, the judgment appealed from should be, as it is hereby, AFFIRMED, with the modification that the accused JIMMY MARANTAL is hereby sentenced to suffer the penalty of reclusion perpetua. With costs against appellants.

SO ORDERED.

Aquino, Guerrero, Abad Santos, Plana, Escolin, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.

Fernando, C.J. and Teehankee, J., took no part.

Melencio-Herrera, J., is on official leave.



MAKASIAR, J., dissenting:chanrob1es virtual 1aw library

Partial dissent. Appellant Jimmy Marantal is guilty of robbery only no clear proof that he know Monica Monge was being raped and even if he did, he could not prevent it if he was on the ground outside the house as look out.

Endnotes:

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1. Rollo, pp. 8-9.

2. Decision, pp. 4-5.

3. pp. 6-18, Appellee’s Brief.

4. p. 2, Appellants’ Brief.

5. People v. Villanueva, 104 Phil. 450.

6. People v. Carbonel, 48 Phil. 868.

7. People v. Verzo, 65 SCRA 324.

8. People v. Reyes, 17 SCRA 309; People v. Akiram, 18 SCRA 239.

9. People v. Chan Lit Wat, 50 Phil. 182; People v. Pareja, 28 SCRA 764.

10. p. 15, Brief of the Defendants-Appellants.

1. REMEDIAL LAW; CRIMINAL PROCEDURE; CIVIL LIABILITY; EFFECT THEREON OF DEATH OF ACCUSED PENDING APPEAL; CASE AT BAR. — Considering the death of accused-appellant on January 26, 1984, the Court nevertheless resolved to exercise jurisdiction over the accused’s civil liability (People v. Sendaydiego, 81 SCRA 120) since it has been duly established beyond reasonable doubt that said accused-appellant "was the assailant and the one responsible for the death of Juan Balagasay" (Decision, page 11), and the victim’s heirs not having reserved the right to file a separate civil action, it would be a superfluity to compel them at this late stage to still litigate or file another suit for indemnity for his death. In the interest of justice and in fairness to the heirs of the deceased-victim, Juan Balagasay, the accused-appellant’s estate is hereby sentenced to indemnify the heirs of Juan Balagasay in the sum of P30,000.00

Considering that accused-appellant Aurelio Onarosa died on January 26, 1984 and the findings of facts and of accused-appellant’s guilt by the defunct Court of First Instance of Samar were confirmed by this Court in its decision of February 29, 1984 (which could not produce any legal effect insofar as the accused-appellant’s criminal liability is concerned by virtue of his prior death), the Court nevertheless resolved to exercise jurisdiction over the accused’s civil liability (People v. Sendaydiego, 81 SCRA 120) since it has been duly established beyond reasonable doubt that said accused-appellant "was the assailant and the one responsible for the death of Juan Balagasay" (Decision, page 11), and the victim’s heirs not having reserved the right to file a separate civil action, it would be a superfluity to compel them at this late stage to still litigate or file another suit for indemnity for his death.

ACCORDINGLY, in the interest of justice and in fairness to the heirs of the deceased-victim, Juan Balagasay, the accused-appellant’s estate is hereby sentenced to indemnify the heirs of Juan Balagasay in the sum of P30,000.00.

SO ORDERED.

Teehankee, Gutierrez, Jr. and De la Fuente, JJ., concur.

Melencio-Herrera, J., is on leave.



PLANA, J., concurring:chanrob1es virtual 1aw library

I concur. It is utterly absurd to require a civil suit to prove by mere preponderance of evidence what as here, has already been proved beyond reasonable doubt.

1. MERCANTILE LAW; INSURANCE; GROUP MORTGAGE REDEMPTION INSURANCE; SOCIAL SECURITY SYSTEM INSURANCE FOR MORTGAGORS OF THE SYSTEM; ELIGIBILITY THEREFOR; CASE AT BAR. — There can be no doubt as to the eligibility of the late Captain Serrano for coverage under Section 1 or Article II of the Group Mortgage Redemption Insurance Policy as he was a mortgagor of the Social Security System not over the age of 65 nearest his birthday at the time when the mortgage loan was granted to him (p. 26, rec.). This fact was admitted not only by the Social Security Commission but also accepted by the Court of Appeals.

2. ID.; ID.; ID.; ID.; EFFECTIVE DATE OF COVERAGE UNDER SECTION 2, ARTICLE II OF POLICY IN CASE AT BAR. — Section 2 of Article II of the Group Mortgage Redemption Insurance Policy provides that insurance coverage shall be "automatic" and limited only by the amount of insurance and age requirement. While the same section has for its title the mode of acceptance, what is controlling is the meaning of the provision itself. The said section can only convey the idea that the mortgagor who is eligible for coverage on or after the date of issue shall be automatically insured. The only condition is that the age requirement should be satisfied, which had been complied with by the deceased mortgagor in the instant case. Under said Section 2, mortgage redemption insurance is not just automatic; it is compulsory for all qualified borrowers. This is the same automatic redemption insurance applied to all qualified borrowers by the GSIS (Government Service Insurance System) and the DBP (Development Bank of the Philippines).

3. ID.; ID.; ID.; ID.; EFFECTIVE DATE OF COVERAGE UNDER SECTION 3, ARTICLE II OF POLICY IN CASE AT BAR PRESENTS AMBIGUITY; CONSTRUED IN FAVOR OF THE INSURED. — However, Section 3 of Article II of the Group Mortgage Redemption Insurance Policy presents an ambiguity. The effective date of coverage can be interpreted to mean that the insurance contract takes effect "from the beginning of the amortization period of such Mortgage Loan" or "partial release of Mortgage Loan." The ambiguity in Section 3 of Article II should be resolved in favor of the petitioner. "The interpretation of obscure words or stipulations in a contract shall not favor the party who caused the obscurity" (Article 1377, Civil Code). WE have held that provisions, conditions or exceptions tending to work a forfeiture of insurance policies should be construed most strongly against those for whose benefit they are inserted, and most favorably toward those against whom they are intended to operate (Trinidad v. Orient Protective Ass., 67 Phil. 181).

4. ID.; ID.; ID.; ID.; RATIONALE OF THE SCHEME. — It is imperative to dissect the rationale of the insurance scheme envisioned by the Social Security System. The Mortgage Redemption Insurance device is not only for the protection of the SYSTEM but also for the benefit of the mortgagor. On the part of the SYSTEM, it has to enter into such form of contract so that in the event of the unexpected demise of the mortgagor during the subsistence of the mortgage contract, the proceeds from such insurance will be applied to the payment of the mortgage debt, thereby relieving the heirs of the mortgagor from paying the obligation. The SYSTEM insures the payment to itself of the loan with the insurance proceeds. It also negates any future problem that can crop up should the heirs be not in a position to pay the mortgage loan. In short, the process of amortization is hastened and possible litigation in the future is avoided. In a similar vein, ample protection is given to the mortgagor under such a concept so that in the event of his death, the mortgage obligation will be extinguished by the application of the insurance proceeds to the mortgage indebtedness.

This petition for certiorari seeks to review the decision of the then Court of Appeals (now Intermediate Appellate Court under BP 129) dated August 31, 1972, affirming the validity of the resolution of the Social Security Commission denying favorable consideration of the claim for benefits of the petitioner under the Group Redemption Insurance plan of the Social Security System (SYSTEM). The dispositive portion of the respondent Court’s decision reads as follows:jgc:chanrobles.com.ph

"WHEREFORE, the Court hereby upholds the validity of the appealed resolution No. 1365, dated December 24, 1968, of appellee Social Security Commission; without pronouncement as to costs" (p. 31, Rec.).

The undisputed facts are as follows:chanrob1es virtual 1aw library

On or about January 1, 1965, upon application of the SYSTEM, Group Mortgage Redemption Policy No. GMR-1 was issued by Private Life Insurance Companies operating in the Philippines for a group life insurance policy on the lives of housing loan mortgagors of the SYSTEM. Under this Group Mortgage Redemption scheme, a grantee of a housing loan of the SYSTEM is required to mortgage the house constructed out of the loan and the lot on which it stands. The SYSTEM takes a life insurance on the eligible mortgagor to the extent of the mortgage indebtedness such that if the mortgagor dies, the proceeds of his life insurance under the Group Redemption Policy will be used to pay his indebtedness to the SYSTEM and the deceased’s heirs will thereby be relieved of the burden of paying for the amortization of the deceased’s still unpaid loan to the SYSTEM (p. 25, rec.).

Petitioner herein is the widow of the late Bernardo G. Serrano, who, at the time of his death, was an airline pilot of Air Manila, Inc. and as such was a member of the Social Security System.

On November 10, 1967, the SYSTEM approved the real estate mortgage loan of the late Bernardo G. Serrano for P37,400.00 for the construction of the applicant’s house (pp. 25-26, rec.).

On December 26, 1967, a partial release in the amount of P35,400.00 was effected and devoted to the construction of the house (p. 2, rec.). As a consequence, a mortgage contract was executed in favor of the SYSTEM by the late Captain Serrano with his wife as co-mortgagor.

On March 8, 1968, Captain Serrano died in a plane crash and because of his death, the SYSTEM closed his housing loan account to the released amount of P35,400.00 (p. 26, rec.).

On December 2, 1968, the petitioner sent a letter addressed to the Chairman of the Social Security Commission requesting that the benefits of the Group Mortgage Redemption Insurance be extended to her.

The letter of the petitioner was referred to the Administrator of the SYSTEM, who recommended its disapproval on the ground that the late Captain Serrano was not yet covered by the Group Mortgage Redemption Insurance policy at the time of his death on March 8, 1968. In its resolution No. 1365 dated December 24, 1968, the Social Security Commission sustained the said stand of the SYSTEM and thereby formally denied the request of the petitioner (p. 26, rec.).

On appeal to the then Court of Appeals, the respondent Court affirmed the decision of the Social Security Commission.

Hence, this petition.

The only issue to be resolved is the correctness of the interpretation given by the respondent Commission which was upheld by the respondent Court as to the applicability of the Mortgage Redemption Insurance plan particularly on when coverage on the life of the mortgagor commences.

Article II (Insurance Coverage) of the Group Mortgage Redemption Police No. GMR-1 provides:jgc:chanrobles.com.ph

"Section 1. Eligibility. — Every mortgagor who is not over age 65 nearest birthday at the time the Mortgage Loan is granted (or, in the case of a Mortgagor applying for insurance coverage on a Mortgage Loan granted before the Date of Issue, at the time he makes such application) and who would not be over 75 nearest birthday on the date on which the original term of the Mortgage Loan expires shall be eligible for insurance coverage under this Policy, provided that if the total indebtedness to the Creditor under the new Mortgage Loan and the outstanding balance of any prior Mortgage Loan or Loans insured hereunder, exceeds P70,000.00, he will be eligible for insurance coverage up to this maximum limit only.

"Co-makers or co-signers of mortgage contract are not eligible for coverage under this Policy.

"Section 2. Mode of Acceptance. — Any Mortgagor who is eligible for coverage on or after the Date of Issue shall be automatically insured, subject to the amount of insurance limit in Section 1 hereof, without proof of insurability provided that he is not more than age 60 nearest birthday at the time the Mortgage Loan is granted. Such a mortgagor who is over age 60 nearest birthday at the time the Mortgage Loan is granted may be accepted for insurance only subject to the submission of evidence of insurability satisfactory to the Subscribing Companies.

"Any eligible Mortgagor who was already a Mortgagor before the Date of Issue shall be automatically insured, subject to the amount of insurance limit in Section 1 hereof, without proof of insurability provided that he is not more than age 60 nearest birthday on the Date of Issue and that he makes written application to the Creditor for coverage within ninety (90) days from the Date of Issue. If such a Mortgagor applies for coverage after ninety (90) days from the Date of Issue, he may be accepted for insurance upon written application therefor, subject to the submission of evidence of insurability to the Subscribing Companies.

"Section 3. Effective Date of Insurance. — The insurance on the life of each eligible Mortgagor Loan or partial release of Mortgage Loan accepted for coverage who becomes a Mortgagor on or after the Date of Issue shall take effect from the beginning of the amortization period of such Mortgage Loan or partial release of Mortgage Loan.

"The beginning of the amortization period as used herein shall mean the first day of the month preceding the month in which the first monthly amortization payment falls due.

"It is hereby understood that before any release on any approved Mortgage Loan is made by the Creditor, the requisites binding the Mortgagor and the Creditor as regards to said Mortgage Loan shall have been completed.



(pp. 59-60, rec.; Emphasis supplied).

A careful analysis of the provisions leads to the conclusion that the respondent Court of Appeals erred in construing the effectivity date of insurance coverage from the beginning of the amortization period of the loan.

WE REVERSE.

There can be no doubt as to the eligibility of the late Captain Serrano for coverage under Section 1 of Article II of the Group Mortgage Redemption Insurance Policy as he was a mortgagor of the Social Security System not over the age of 65 nearest his birthday at the time when the mortgage loan was granted to him (p. 26, rec.). This fact was admitted not only by the Social Security Commission but also accepted by the Court of Appeals.

The problem manifests itself in Sections 2 and 3 of the same article of the Group Mortgage Redemption Insurance Policy. Section 2 provides that "any mortgagor who is eligible for coverage on or after the Date of Issue shall be automatically insured, . . ." (Italics supplied); while Section 3 provides that the insurance "shall take effect from the beginning of the amortization period of such Mortgage Loan or partial release of Mortgage Loan" (Italics supplied).

Section 2 of Article II of the Group Mortgage Redemption Insurance Policy provides that insurance coverage shall be "automatic" and limited only by the amount of insurance and age requirement. While the same section has for its title the mode of acceptance, what is controlling is the meaning of the provision itself. The said section can only convey the idea that the mortgagor who is eligible for coverage on or after the date of issue shall be automatically insured. The only condition is that the age requirement should be satisfied, which had been complied with by the deceased mortgagor in the instant case.

Under said Section 2, mortgage redemption insurance is not just automatic; it is compulsory for all qualified borrowers. This is the same automatic redemption insurance applied to all qualified borrowers by the GSIS (Government Service Insurance System) and the DBP (Development Bank of the Philippines). Indeed, the Mortgage Redemption Insurance Policy of the GSIS provides:jgc:chanrobles.com.ph

"Sec. 2. . . . This policy is granted subject to the terms and conditions set forth at the back hereof and in consideration of the application therefor and shall take effect on the date of the first date of the aforementioned loan" (p. 126, CA rec.; Emphasis supplied).

WE take judicial notice of the Mortgage Contract being issued by the Social Security System in connection with applications for housing loans, specifically Section 16 thereof:jgc:chanrobles.com.ph

"Section 16. — (a) The loan shall be secured against the death of the borrower through the Mortgage Redemption Insurance Plan; (b) Coverage shall take effect on the date of the first release voucher of the loan and shall continue until the real estate mortgage loan is fully paid; . . ." (Emphasis supplied).

However, Section 3 of Article II presents an ambiguity. The effective date of coverage can be interpreted to mean that the insurance contract takes effect "from the beginning of the amortization period of such Mortgage Loan" or "partial release of Mortgage Loan."cralaw virtua1aw library

Applying Article 1374 of the new Civil Code, the mortgagor in the instant case was already covered by the insurance upon the partial release of the loan.

Article 1374, NCC, reads thus:jgc:chanrobles.com.ph

"The various stipulations of a contract shall be interpreted together, attributing to the doubtful ones that sense which may result from all of them taken jointly."cralaw virtua1aw library

The ambiguity in Section 3 of Article II should be resolved in favor of the petitioner. "The interpretation of obscure words or stipulations in a contract shall not favor the party who caused the obscurity" (Article 1377, Civil Code). WE have held that provisions, conditions or exceptions tending to work a forfeiture of insurance policies should be construed most strongly against those for whose benefit they are inserted, and most favorably toward those against whom they are intended to operate (Trinidad v. Orient Protective Ass., 67 Phil. 181).

While the issuance of the Group Mortgage Redemption Insurance is a contract between the Social Security System and the Private Life Insurance Companies, the fact is that the SYSTEM entered into such a contract to afford protection not only to itself should the mortgagor die before fully paying the loan but also to afford protection to the mortgagor. WE take note of the following:jgc:chanrobles.com.ph

"I. Insurance Coverage.

"1. Fire insurance — The SSS-financed house shall be covered by fire insurance equal to its appraised value or the amount of the loan, whichever is lesser.

"2. Mortgage Redemption Insurance. — Coverage shall be compulsory for any mortgagor who is not more than 60 years old.

"The insured indebtedness on the mortgage as provided in the policy shall be deemed paid upon the death of a mortgagor covered under the MRI" (Employees’ Benefits & Social Welfare, 1983 Rev. Ed., CBSI, pp. 50-51; Emphasis supplied).

It is imperative to dissect the rationale of the insurance scheme envisioned by the Social Security System. The Mortgage Redemption Insurance device is not only for the protection of the SYSTEM but also for the benefit of the mortgagor. On the part of the SYSTEM, it has to enter into such form of contract so that in the event of the unexpected demise of the mortgagor during the subsistence of the mortgage contract, the proceeds from such insurance will be applied to the payment of the mortgage debt, thereby relieving the heirs of the mortgagor from paying the obligation. The SYSTEM insures the payment to itself of the loan with the insurance proceeds. It also negates any future problem that can crop up should the heirs be not in a position to pay the mortgage loan. In short, the process of amortization is hastened and possible litigation in the future is avoided. In a similar vein, ample protection is given to the mortgagor under such a concept so that in the event of his death; the mortgage obligation will be extinguished by the application of the insurance proceeds to the mortgage indebtedness.

The interpretation of the Social Security Commission goes against the very rationale of the insurance scheme. It cannot unjustly enrich itself at the expense of another (Nemo cum alterius detrimento protest). "Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith" (Article 19, Civil Code). Simply put, the SYSTEM cannot be allowed to have the advantage of collecting the insurance benefits from the private life insurance companies and at the same time avoid its responsibility of giving the benefits of the Mortgage Redemption Insurance plan to the mortgagor. The very reason for the existence of the Social Security System is to extend social benefits. For SSS to be allowed to deny benefits to its members, is certainly not in keeping with its policy." . . to establish, develop, promote and perfect a sound and viable tax-exempt social security service suitable to the needs of the people throughout the Philippines, which shall provide to covered employees and their families protection against the hazards of disability, sickness, old age, and death with a view to promote their well-being in the spirit of social justice" (The Social Security Law, R.A. No. 1161, as amended).

To sustain the position of the SSS is to allow it to collect twice the same amount — first from the insurance companies which paid to it the amount of the MRI and then from the heirs of the deceased mortgagor. This result is unconscionable as it is iniquitous.

It is very clear that the spirit of social justice permeates the insurance scheme under the Group Mortgage Redemption Insurance. It is a welcome innovation in these times when the concept of social justice is not just an empty slogan nor a mere shibboleth. Social justice is explicitly institutionalized and guaranteed under the Constitution (Article II, Section 6, 1973 Constitution). The construction that would enhance the State’s commitment on social justice mandates Us to hold for the petitioner.

Usually, among the items to be deducted by the SYSTEM from the first release of the loan is the premium corresponding to the mortgage redemption insurance (MRI). However, if the premium corresponding to the amount to be deducted from the first release of the loan was not paid by the borrower, the deceased mortgagor, the said unpaid premium should be refunded by the heirs of the borrower.

WHEREFORE, THE DECISION OF THE RESPONDENT COURT OF APPEALS AFFIRMING RESOLUTION NO. 1365 OF RESPONDENT COMMISSION IS HEREBY SET ASIDE. THE SOCIAL SECURITY SYSTEM IS HEREBY DIRECTED TO RELEASE THE PETITIONER FROM PAYING THE MORTGAGE LOAN. THE PETITIONER IS HEREBY DIRECTED TO REFUND TO THE SSS THE PREMIUM CORRESPONDING TO THE RELEASED AMOUNT, IF THE SAME HAD NOT BEEN DEDUCTED THEREFROM, NO COSTS.

SO ORDERED.

Concepcion, Jr., Guerrero, Abad Santos, Escolin and Cuevas, JJ., concur.

Aquino, J., concurs in the result.

1. CIVIL LAW; OBLIGATIONS AND CONTRACTS; AGENCY; VIOLATION OF STIPULATION, ENTITLES AGGRIEVED PARTY TO DAMAGES. — Under the contract, Exhibit "A", herein petitioners allowed the private respondent "to dispose of, sell, cede; transfer and convey . . . until all the subject property as subdivided is fully disposed of." The authority to sell is not extinguished until all the lots have been disposed of. When, therefore, the petitioners revoked the contract with private respondent in a letter, they become liable to the private respondent for damages for breach of contract.

2. ID.; ID.; ID.; GROUNDS FOR RESCISSION; NO VALID GROUND IN CASE AT BAR. — It may be added that since the agency agreement, Exhibit "A", is a valid contract, the same may be rescinded only on grounds specified in Articles 1381 acid 1382 of the Civil Code. In the case at bar, not one of the grounds mentioned is present which may be the subject of an action of rescission, much less can petitioners say that the private respondent violated the terms of their agreement — such as failure to deliver to them (Subdivision owners) the proceeds of the purchase price of the lots.

Appeal by certiorari from a decision of the then Court of Appeals ordering herein petitioners to pay private respondent "the sum of P10,000.00 as damages and the sum of P2,000.00 as attorney’s fees, and the costs."cralaw virtua1aw library

This case originated in the then Court of First Instance of Iloilo where private respondents instituted a case of recovery of unpaid commission against petitioners over some of the lots subject of an agency agreement that were not sold. Said complaint, docketed as Civil Case No. 7864 and entitled: "Quirino Baterna v. Mariano Diolosa and Alegria Villanueva-Diolosa", was dismissed by the trial court after hearing. Thereafter, private respondent elevated the case to respondent court whose decision is the subject of the present petition.

The parties — petitioners and respondents — agree on the findings of facts made by respondent court which are based largely on the pre-trial order of the trial court, as follows:jgc:chanrobles.com.ph

"PRE-TRIAL ORDER

When this case was called for a pre-trial conference today, the plaintiff, assisted by Atty. Domingo Laurea, appeared and the defendants, assisted by Atty. Enrique Soriano, also appeared.

"A. During the pre-trial conference the parties, in addition to what have been admitted in the pleadings, have agreed and admitted that the following facts are attendant in this case and that they will no longer adduce evidence to prove them:jgc:chanrobles.com.ph

"1. That the plaintiff was and still is a licensed real estate broker, and as such licensed real estate broker on June 20, 1968, an agreement was entered into between him as party of the second part and the defendants spouses as party of the first part, whereby the former was constituted as exclusive sales agent of the defendants, its successors, heirs and assigns, to dispose of, sell, cede, transfer and convey the lots included in VILLA ALEGRE SUBDIVISION owned by the defendants, under the terms and conditions embodied in Exhibit "A", and pursuant to said agreement (Exhibit "A"), the plaintiff acted for and in behalf of the defendants as their agent in the sale of the lots included in the VILLA ALEGRE SUBDIVISION; "2. That on September 27, 1968, the defendants terminated the services of plaintiff as their exclusive sales agent per letter marked as Exhibit "B", for the reason stated in the latter.

"B. During the trial of this case on the merit, the plaintiff will adduce by competent evidence the following facts:jgc:chanrobles.com.ph

"1. That as a real estate broker, he had sold the lots comprised in several subdivisions, to wit: Greenfield Subdivision. the Villa Beach Subdivision, the Juntado Subdivision, the St. Joseph Village, the Ledesma Subdivision, the Brookside Subdivision, the Villa Alegre Subdivision, and Cecilia Subdivision, all in the City of Iloilo except St. Joseph which is in Pavia Iloilo.

"2. That the plaintiff, as a licensed real estate broker, has been seriously damaged by the action of the defendants in rescinding, by Exhibit "B", the contract (Exhibit "A") for which the plaintiff suffered moral damages in the amount of P50,000.00, damages to his good will in the amount of P100,000.00, for attorney’s fees in the amount of P10,000.00 to protect his rights and interests, plus exemplary damages to be fixed by the Court.

"3. That the plaintiff is entitled to a commission on the lots unsold because of the rescission of the contract.

"C. The defendants during the trial will prove by competent evidence the following:jgc:chanrobles.com.ph

"1. That the plaintiff’s complaint was filed to make money out of the suit from defendants, to harrass and to molest defendants;

"2. That because of the unjustified and unfounded complaint of the plaintiff, the defendants suffered moral damages in the amount of P50,000.00, and that for the public good, the court may order the plaintiff to pay the defendants exemplary damages in the amount of P20,000.00, plus attorney’s fees of P10,000.00.

"D. Contentions of the parties:jgc:chanrobles.com.ph

"1. The plaintiff contends:chanrob1es virtual 1aw library

(a) That under the terms of the contract (Exhibit "A") the plaintiff had unrevocable authority to sell all the lots included in the Villa Alegre Subdivision and to act as exclusive sales agent of the defendants until all the lots shall have been disposed of;

(b) That the rescission of the contract under Exhibit "B", contravenes the agreement of the parties.

"2. The defendants contend:chanrob1es virtual 1aw library

(a) That they were within their legal right to terminate the agency on the ground that they needed the undisposed lots for the use of the family;

(b) That the plaintiff has no right in law to claim for commission on lots that they have not sold.

"E. The parties hereby submit to the Court the following issues:jgc:chanrobles.com.ph

"1. Whether under the terms of Exhibit "A" the plaintiff has the irrevocable right to sell or dispose of all the lots included within Villa Alegre Subdivision;

"2. Can the defendants terminate their agreement with the plaintiff by a letter like Exhibit "B" ?

"F. The plaintiff submitted the following exhibits which were admitted by the defendants:chanrob1es virtual 1aw library

Exhibit "A" — agreement entered into between the parties on June 20, 1968 whereby the plaintiff had the authority to sell the subdivision lots included in Villa Alegre subdivision;

Exhibit "B" — letter of the defendant Alegria V. Diolosa dated September 27, 1968 addressed to the plaintiff terminating the agency and rescinding Exhibit "A" for the reason that the lots remained unsold lots were for reservation for their grandchildren.

"The Court will decide this case based on the facts admitted in the pleadings, those agreed by the parties during the pre-trial conference, and those which they can prove during the trial of this case, in accordance with the contention of the parties based on the issues submitted by them during the pre-trial conference.

SO ORDERED.

Iloilo City, Philippines, August 14, 1969.

(SGD) VALERIO V. ROVIRA

Judge"

(pp. 22-25, Rollo)

The only issue in this case is whether the petitioners could terminate the agency agreement, Exhibit "A", without paying damages to the private Respondent. Pertinent portion of said Exhibit "A" reads:jgc:chanrobles.com.ph

"That the PARTY OF THE FIRST PART is the lawful and absolute owner in fee simple of VILLA ALEGRE SUBDIVISION situated in the District of Mandurriao, Iloilo City, which parcel of land is more particularly described as follows, to wit:jgc:chanrobles.com.ph

"A parcel of land, Lot No. 2110-b-2-C, PSD 74002, Transfer Certificate of Title No. T-situated in the District of Mandurriao, Iloilo, Philippines, containing an area of 39016 square meters, more or less, with improvements thereon.

"That the PARTY OF THE FIRST PART by virtue of these presents, to enhance the sale of the lots of the above-described subdivision, is engaging as their EXCLUSIVE SALES AGENT the PARTY OF THE SECOND PART, its successors, heirs and assigns to dispose of, sell, cede, transfer and convey the above-described property in whatever manner and nature the PARTY OF THE SECOND PART, with the concurrence of the PARTY OF THE FIRST PART, may deem wise and proper under the premises, whether it be in cash or installment basis, until all the subject property as subdivided is fully disposed of . (p. 7 of Petitioner’s brief. Italics supplied).

Respondent court, in its decision which is the subject of review said:jgc:chanrobles.com.ph

"Article 1920 of the Civil Code of the Philippines notwithstanding, the defendants could not terminate the agency agreement, Exh. "A", at will without paying damages. The said agency agreement expressly stipulates . . . until all the subject property as subdivided is fully disposed of . . ." The testimony of Roberto Malundo (t.s.n. p. 99) that the plaintiff agreed to the intention of Mrs. Diolosa to reserve some lots for her own family use cannot prevail over the clear terms of the agency agreement. Moreover, the plaintiff denied that there was an agreement to reserve any of the lots for the family of the defendants. (T.s.n. pp. 16).

"There are twenty seven (27) lots of the subdivision remaining unsold on September 27, 1968 when the defendants rescinded the agency agreement, Exhibit "A." On that day the defendants had only six grandchildren. That the defendants wanted to reserve the twenty seven remaining lots for the six grandchildren is not a legal reason for defendants rescind the agency agreement. Even if the grandchildren were to be given one lot each, there would still be twenty one lots available for sale. Besides it is undisputed that the defendants have other lands which could be reserved for their grandchildren." (pp. 26-27, Rollo)

The present appeal is manifestly without merit.

Under the contract, Exhibit "A", herein petitioners allowed the private respondent "to dispose of, sell, cede, transfer and convey . . . until all the subject property as subdivided is fully disposed of." The authority to sell is not extinguished until all the lots have been disposed of. When, therefore, the petitioners revoked the contract with private respondent in a letter, Exhibit "B" —

"Dear Mr. Baterna:chanrob1es virtual 1aw library

Please be informed that we have finally decided to reserve the remaining unsold lots, as of this date of our VILLA ALEGRE Subdivision for our grandchildren.

In view thereof, notice is hereby served upon you to the effect that our agreement dated June 20, 1968 giving you the authority to sell as exclusive sales agent of our subdivision is hereby rescinded.

Please be duly guided.

Very truly yours,

(SGD) ALEGRIA V. DIOLOSA

Subdivision Owner"

(p. 11 of Petitioner’s Brief).

they become liable to the private respondent for damages for breach of contract.

And, it may be added that since the agency agreement, Exhibit "A", is a valid contract, the same may be rescinded only on grounds specified in Articles 1381 and 1382 of the Civil Code, as follows:jgc:chanrobles.com.ph

"ART. 1381. The following contracts are rescissible:jgc:chanrobles.com.ph

"(1) Those which are entered into by guardians whenever the wards whom they represent suffer lesion by more than one-fourth of the value of the things which are the object thereof;

"(2) Those agreed upon in representation of absentees, if the latter suffer the lesion stated in the preceding number;

"(3) Those undertaken in fraud of creditors when the later cannot in any other manner collect the claims due them;

"(4) Those which refer to things under litigation if they have been entered into by the defendant without the knowledge and approval of the litigants or of competent judicial authority;

"(5) All other contracts specially declared by law to be subject to rescission.

"ART. 1382. Payments made in a state of insolvency for obligations to whose fulfillment the debtor could not be compelled at the time they were effected, are also rescissible."cralaw virtua1aw library

In the case at bar, not one of the grounds mentioned above is present which may be the subject of an action of rescission, much less can petitioners say that the private respondent violated the terms of their agreement — such as failure to deliver to them (Subdivision owners) the proceeds of the purchase price of the lots.

ACCORDINGLY, the petition is hereby dismissed without pronouncement as to costs.

SO ORDERED.

Teehankee, Melencio-Herrera, Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.

1. REMEDIAL LAW; FORCIBLE ENTRY AND UNLAWFUL DETAINER; JURISDICTION OF MUNICIPAL AND CITY COURTS; JURISDICTION LOST WHERE QUESTION OF POSSESSION NECESSARILY DEPENDS UPON THE RESULT OF INQUIRY TO TITLE. — In actions of forcible entry and detainer, the main issue is possession de facto, independently of any claim of ownership or possession de jure that either party may set forth in his pleading. However, if it appears during the trial that the principal issue relates to the ownership of the property in dispute and any question of possession which may be involved necessarily depends upon the result of the inquiry into the title, previous rulings of this Court are that the jurisdiction of the municipal or city court is lost and the action should be dismissed.

2. ID.; CIVIL ACTIONS; APPEALS FROM INFERIOR COURTS TO COURTS OF FIRST INSTANCE; DISMISSAL OF APPEAL WHERE INFERIOR COURT LACKS JURISDICTION; ALTERNATIVE ACTION WHICH COURT OF FIRST INSTANCE MAY TAKE. — In line with Section 11, Rule 40 of the Revised Rules of Court, this Court held in Saliwan v. Amores, 51 SCRA 329,337, that dismissal "on the said ground of lack of appellate jurisdiction on the part of the lower court flowing from the municipal court’s loss of jurisdiction would lead only to ‘needless delay and multiplicity of suits in the attainment of the same result’ and ignores, as above stated, that the case was tried and heard by the lower court in the exercise of its original jurisdiction by common assent of the parties by virtue of the issues raised by the parties and the proof presented by them thereon."

Records show that petitioner Douglas B. Alvir filed a complaint for unlawful detainer against private respondents Bernardo Mollat and Teresa Mollat, before the then Municipal Court of San Juan, Rizal. Basis of the complaint is that petitioner is the registered owner of a residential lot, together with the improvements thereon situated at No. 299 Verdun Street, San Juan, Rizal and covered by Transfer Certificate of Title No. 328543 of the Registry of Deeds of Rizal. After said property had been adjudicated to him as its new owner during the settlement of the estate of his late father Dr. Antonio B. Alvir, plaintiff (herein petitioner) wrote private respondents to vacate the premises as he and his family are in need of a place to live. This was followed by another letter reiterating his request which, however, the private respondents ignored.

In their answer, private respondents alleged that in November 1961 the late Dr. Antonio B. Alvir entered into a contract of sale with Mr. Howard J. Weber whereby the latter was given the right to pay the full purchase price of the property within two (2) years from the date of the contract of sale; that private respondents were allowed by Mr. Weber to occupy the premises before the latter left for the United States; and that they have been occupying the property as tenants of said Mr. Weber.

After trial, the inferior court rendered judgment in favor of herein petitioner Douglas B. Alvir, ordering private respondents Bernardo and Teresa Mollat "to vacate the premises occupied by them at No. 299 Verdun Street, San Juan, Rizal and to return possession thereof to the plaintiff; to pay to the plaintiff the monthly rental of P300.00 per month from May 25, 1972 until the said defendants completely vacate the said premises; [and] to pay to the plaintiff an additional sum of P500.00 for attorney’s fee plus the cost of this action." (p. 77, Rollo)

Appeal from the decision of the inferior court was taken by private respondents to the then Court of First Instance of Rizal which set aside the decision of the then municipal court of San Juan, Rizal and dismissed the complaint.

Hence, this petition for review by way of certiorari.

As found by respondent court, subject property with an area of 502 square meters is situated in San Juan, Rizal and covered by Transfer Certificate of Title No. 328543 in the name of petitioner Douglas B. Alvir as of May 25, 1971 when the estate of his father who died in 1951 was settled.

As its owner, petitioner contends that he is entitled to the possession of the premises against the private respondents with whom he has no contract and, notwithstanding, refused to vacate the same.

On the other hand, the private respondents claim that they were authorized to stay in the property by Mr. and Mrs. Howard Weber who purchased it from the Alvirs in 1961. On this point, respondent court said:jgc:chanrobles.com.ph

". . . As early as 1966, the Alvirs and Weber seemed not to agree as to the amount still due the Alvirs from Weber which prompted Weber to deposit the amount which he believed was the maximum amount still due the Alvirs with the Associated Banking Corporation. On December 1, 1967, Weber wrote Antonio Alvir, brother of the plaintiff, with respect to the fencing of the property covered by the deed of sale between the Alvirs and Webers (Exhibit 6-A). As testified to by Antonio Alvir, Weber has been pressing Catalina Alvir to deliver the title to the property but Mrs. Alvir refused to do so on the ground that the payment made by Weber was delayed.

"From the evidence presented by the defendants, it appears that defendants are claiming the right to possess the property by virtue of the authority of Weber who claims to be the owner of the property as per deed of sale executed by the Alvirs in his favor. The contention of the Alvirs that they are not duty bound to surrender the title to the property on the ground that Weber has not complied with the conditions of the sale are matters which should be threshed out in a separate proceedings and only until these matters have been clarified can it be said that Weber has no right to the property and, therefore, the possession of the defendants under Weber’s authority is not lawful.



"As a general rule, a mere allegation by the defendant in an ejectment case, that he is the owner of the real property involved therein, does not and cannot divest the inferior court of its jurisdiction over the ejectment suit. However, if it appears during the trial that by the nature of the proof presented, the question of possession cannot be properly determined without settling that of ownership, then the jurisdiction of the court is lost and the action should be dismissed. (Torres v. Peña, 78 Phil. 231; Peñalosa v. Garcia, 78 Phil. 245; Cruz v. Garcia, 79 Phil. 1; Ganaynay v. Sarmiento, 79 Phil. 36; Raymundo v. Santos, 93 Phil. 395, Dy Sun v. Brillantes, 93 Phil. 175; Andres v. Serrano, 101 Phil. 848; Songahid v. Cinco, L-14341, January 29, 1960 as cited in 16 SCRA 677). Plaintiff admitted that before this case was filed, he came across the deed of sale by the Alvirs in favor of Weber while sorting out papers relevant to this case (tsn, April 6, 1973, pp. 16-l7). It is surprising that Weber was not made a party defendant he being a party in interest." (pp. 73-74, 75, Rollo)

In actions of forcible entry and detainer, the main issue is possession de facto, independently of any claim of ownership or possession de jure that either party may set forth in his pleading. As incidents of the main issue of possession de facto, the inferior court can decide the questions of (a) whether or not the relationship between the parties is one of landlord and tenant; (b) whether or not there is a lease contract between the parties, the period of such lease contract and whether or not the lease contract has already expired; (c) the just and reasonable amount of the rent and the date when it will take effect; (d) the right of the tenant to keep the premises against the will of the landlord; and (e) if the defendant has built on the land a substantial and valuable building and there is no dispute between the parties as to the ownership of the land and the building, their rights according to the Civil Code. Defendants’ claim of ownership of the property from which plaintiff seeks to eject him is not sufficient to divest the inferior court of its jurisdiction over the action of forcible entry and detainer. However, if it appears during the trial that the principal issue relates to the ownership of the property in dispute and any question of possession which may be involved necessarily depends upon the result of the inquiry into the title, previous rulings of this Court are that the jurisdiction of the municipal or city court is lost and the action should be dismissed.

We have at bar a case where, in effect, the question of physical possession could not properly be determined without settling that of lawful or de jure possession and of ownership and hence, following early doctrine, the jurisdiction of the municipal court over the ejectment case was lost and the action should have been dismissed. As a consequence, respondent court would have no jurisdiction over the case on appeal and it should have dismissed the case as appealed from the municipal court. However, in line with Section 11, Rule 40 of the Revised Rules of Court, which reads —

"SEC. 11. Lack of jurisdiction. — A case tried by an inferior court without jurisdiction over the subject matter shall be dismissed on appeal by the Court of First Instance. But instead of dismissing the case, the Court of First Instance in the exercise of its original jurisdiction, may try the case on the merits if the parties therein file their pleadings and go to the trial without any objection to such jurisdiction."cralaw virtua1aw library

this Court held in Saliwan v. Amores, 51 SCRA 329, 337, that dismissal "on the said ground of lack of appellate jurisdiction on the part of the lower court flowing from the municipal court’s loss of jurisdiction would lead only to ‘needless delay and multiplicity of suits in the attainment of the same result’ and ignores, as above stated, that the case was tried and heard by the lower court in the exercise of its original jurisdiction by common assent of the parties by virtue of the issues raised by the parties and the proof presented by them thereon." In a similar case, the Court ruled that —

"As the justice of the peace court of Hagonoy had no jurisdiction to try the case on the merits, the order appealed from remanding the case to that court must be, as it is hereby, revoked; and, in accord with the precedent established in Cruz Et. Al. v. Garcia Et. Al., 46 Off. Gaz., 227, and the decisions therein cited, the case is ordered returned to the Court of First Instance of Bulacan for that court to proceed with the trial in the exercise of its original jurisdiction." (Teodoro v. Balatbat, Et Al., 94 Phil. 247, 250).

ACCORDINGLY, the judgment of respondent judge is hereby REVERSED and the case is remanded to the Court of First Instance of Rizal for that court to proceed with the trial in the exercise of its original jurisdiction.

SO ORDERED.

Teehankee, Melencio-Herrera, Plana, Gutierres, Jr. and De la Fuente, JJ., concur.

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; TESTIMONY OF RAPE VICTIM GENERALLY GIVEN CREDENCE; CASE AT BAR, AN EXCEPTION. — This Court has consistently held that "when a woman testifies that she has been raped, she says all that need be said to signify that this crime has been committed" (U.S. v. Ramos, 1 Phil. 81; People v. Francisco Royeras, 56 SCRA 666; People v. Dayo and Tingson, 58 Phil. 420). In the case before Us, Melanie, the eleven-year old complainant, categorically declared in open court that accused raped her. She, however, had difficulty exporting how the alleged rape was committed and it was only after the Fiscal had read to her Question No. 8 and the corresponding Answer, set forth in Exhibit "C", that Melanie, as if on cue, was able to relate the details of the alleged rape. To Our mind, the testimony of Melanie that accused "undressed me and placed himself on top of me. He removed my panty. Then he placed himself on top of me. Then he kissed me. Nothing more" bespeaks more of the truth than her later statements. These details were given candidly without prodding from the Fiscal, unlike her narration that accused "inserted his penis into mine," which the Fiscal was able to elicit with much difficulty. Besides, Melanie herself admitted having been coached by her mother with respect to what she was to tell the investigating officer.

2. ID.; ID.; ID.; EXPERT OPINION, PHYSICAL EVIDENCE OF HIGHEST ORDER IN RAPE CASES. — The first portion of her testimony is more in harmony with the clinical observations and findings of Dr. Angelo Singian that Melanie did not engage in sexual intercourse on the day in question. Due weight and consideration must be given Dr. Singian’s expert opinion as physical evidence of this sort is of the highest order in rape cases, speaking more eloquently than a hundred witnesses (People v. Alexander Sacabin, 57 SCRA 707).

3. ID.; ID.; ID.; TESTIMONY OF RAPE VICTIM; OPINION EVIDENCE CANNOT PREVAIL OVER CLEAR TESTIMONY OF COMPLAINANT IN RAPE CASES, AS A RULE; DOCTRINE NOT APPLICABLE TO CASE AT BAR. — While it may be true, as observed by the lower court, citing People v. Pascaran, CA-G.R. No. 25877-R, Dec. 2, 1959, that "Opinion evidence can not prevail over clear testimony of the complaining witness in rape cases," said doctrine does not apply to the case at bar, where there is no clear, satisfactory and convincing proof of the slightest penetration of accused’s sex organ into that of complaint’s. If it were true that accused was able to insert his organ into complainant’s vagina, remaining in such position for more than an hour, as claimed by Melanie, dilation of her genitals would have been readily perceived by the expert eye of Dr. Singian. And such condition of her genitalia would have been more evident if We take into account her statement in Exhibit C that "anim na beses na ho ako niya nagalaw." That Dr. Singian found nothing to indicate that this was the case, renders the testimony of complainant highly suspect.

4. CRIMINAL LAW; RAPE; PRESENCE OF INTENT TO LIE WITH COMPLAINANT WITHOUT COMPLETE EXECUTION CONSTITUTES AN ATTEMPT. — Although there might have been an intent on the part of the accused to lie with complainant, complete execution of the crime intended did not take place due to Imelda’s timely arrival at the scene. Hence, the accused is hereby convicted of attempted rape.

This is an appeal from the decision of the then Court of First Instance of Manila in Criminal Case No. 14254, finding accused Jaime Acilar y Beatingo guilty beyond reasonable doubt of the crime of rape and sentencing him "to suffer the penalty of reclusion perpetua, to pay P5,000.00 by way of moral damages to the offended party and to pay the costs."cralaw virtua1aw library

Conviction was based primarily on the testimony of complainant, Melanie Pama, 11 years of age, and that of her 33-year old, widowed mother Imelda Pama y Padrones, although two other witnesses were presented by the prosecution, namely: Dr. Angelo Singian, Acting Chief Medico-Legal of the Manila Police Department and Patrolman Nilo Natural of the same office.

According to Imelda Pama, sometime between the hours of 3:00 and 4:00 o’clock in the afternoon of June 3, 1973, Accused went to the house of Congressman Chiongbian at 937 Capitan Ticong St., Malate, Manila, where she was working as a househelp. Accused, who did occasional carpentry jobs for the Chiongbians, asked for medicine for his sick wife who served as the household laundrywoman. She led accused to a room on the second floor of the house and pointed to a box of medicines. After getting the same, she and accused went downstairs. Accused stayed on, seating himself by the round table with her and the cook. They conversed for a while. Then, the telephone, located some three meters from the round table, rang. Imelda picked it up and received the call of the mayordoma, who was then in a hospital watching over the paralytic mother of the congressman. The conversation lasted for about 10 to 15 minutes, after which she went back to the round table. Accused was no longer there. About a minute later, the cook told her to get dressed for church. She went upstairs to her room, and upon opening the door, she saw accused on top of her daughter. The pants and underwear of the accused were lowered to his knees. Melanie, on the other hand, was naked. She immediately went towards the accused, choked and pulled him away, scratching his nape in the process. On cross examination, she stated that she did not notice the motion of the accused while on top of her daughter, 1 but on rebuttal, said that she saw his pull and push movement. 2 She brought the accused downstairs and turned him over to the security guard. The police were called and the accused, Imelda, Melanie and the security guard were taken to the police precinct for investigation. Imelda gave her statement to the police, 3 which contained materially the same narration of facts as her testimony in court.

Complainant Melanie Pama was born on October 7, 1961. 4 She testified that at around 4:00 o’clock in the afternoon of June 3, 1973, she was asleep in a room in the second floor of the Chiongbian residence. She was awakened by the accused who placed himself on top of her, removed her shorts and panties, kissed and raped her. Then her mother came and dragged accused downstairs. The police were called and they were brought to the precinct.

In her statement to the police, 5 she said that "mga anim na beses na ho niya (referring to accused) nagalaw," the first of which was in March 1972.

On June 6, 1973, at about 12:30 a.m., a physical examination of complainant Melanie was conducted by Dr. Angelo Singian, acting chief of the Medico Legal Department of the MPD. Based on his interview and examination of complainant, Dr. Singian issued a Medical Certificate (Exh. G., Original Records, p. 11) stating, to wit:jgc:chanrobles.com.ph

"Subject is a virgin with no signs of intercourse on June 3, 1973."cralaw virtua1aw library

Dr. Singian, who had examined over a thousand victims of rape, abduction and seduction, testified on direct examination that "subject was a virgin with no signs of injury in the genitalia, that is, including the hymen of the vagina and the vulva." 6 When asked by the court to elaborate, he explained that "there was no injury in the labia menora or labia mejora nor in the hymen and vaginal tissues." 7 From these observations, he opined that complainant was not raped. 8

On further examination by the Fiscal, he stated that if penetration were done slowly and up to the labia majora only, it was possible that there would be no injury to the labia majora. However, in the absence of any injury to complainant’s genitalia, he said that he could not positively declare whether or not there was penetration extending only up to the labia majora. 9

Patrolman Nilo Natural, police investigator, testified that he took the statement of the accused 10 and those of mother and daughter, Imelda and Melanie Pama. 11 He declared that he advised accused of his constitutional rights before taking down his statement; that the questions were propounded in Tagalog, as requested by the accused, to which the latter likewise responded in Tagalog. He further stated that accused read Exhibit D before signing the same and that accused was brought before Asst. Fiscal Abundio Cate of Manila on June 4, 1973 before whom accused swore to the truth of his statement.

In his sworn statement, it was stated that before 4:00 o’clock in the afternoon of June 3, 1973, he went to the servants’ room in the second floor of the Chiongbian residence to get some medicine for his wife. Inside, he saw Melanie in bed, asleep. He went near her, held her nipple and private parts. Melanie woke up, but did not complain. Encouraged, he removed her panty, unzipped his trousers and brought out his penis. He went on top of her, inserted his organ into hers and minutes later reached his orgasm. Suddenly, Imelda Pama entered the room and seeing him still on top of Melanie, grabbed him by the collar of his shirt. She brought him down, turned him over to the security guard and called the police.

Accused, in his statement, likewise admitted having had previous sexual relations with Melanie for six times.

However, taking the witness stand on his own behalf, Accused denied having had carnal knowledge of complainant. He stated that at around 3:30 o’clock of June 3, 1973, he went to the house of Congressman Chiongbian to get some medicine for his wife. He passed by Melanie in the kitchen in going to the sala where he found Imelda, the cook and the mayordoma conversing with each other. He stayed with them for about five minutes, then went upstairs when he heard Melanie calling him. He went inside the room of the sick old woman where Melanie was, leaving the door about two feet ajar. Melanie asked him to do something for her but she did not tell him what it was about. When he approached her, she embraced him right in front of the paralytic woman with failing eyesight. He rebuked her, asking her to leave him lest her mother saw them. Just as he feared, Imelda came into the room and saw Melanie embracing him. Imelda immediately grabbed him by the collar, uttering, "Loko ka, gusto mong pagsamantalahan ang anak ko!" He retorted that it was her daughter who needed reprimanding. She dragged him downstairs and turned him over to the security guard.

Accused further denied the contents of his sworn statement (Exh. D), claiming, "they only made it." He likewise denied having been informed by the investigating officer of his constitutional rights, and alleged having received from the arresting police blows on the stomach and nape as well as slaps on both ears upon his arrest at the Chiongbian residence and later on at the police precinct; that fearing he would again be subjected to such maltreatment, he signed the statement prepared by Pat. Natural, although the latter had only asked him questions regarding his personal circumstances.

When brought before Asst. Fiscal Cate to attest to his statement, he was not able to complain about the mauling as the "moment I raised my hand, I was suddenly pulled by my escort and said that it was finished." 12 He told his wife to complain about the mauling, but the latter did not comply and nothing happened as her visits became less frequent. 13

On cross-examination, Accused stated that at least six times prior to the incident at bar, Melanie had embraced him, and at times even touched his buttocks and grasped his testicles. On these occasions, he brushed her hands away and admonished her.

In the course of the cross-examination, the Fiscal moved for the ocular inspection of the penis of the accused, to determine from its size whether or not accused could have effected penetration without causing injury to Melanie’s genitalia. Over the vehement objection of the defense counsel, the trial court granted the motion. Thus, after the prosecution had presented its rebuttal witnesses, an ocular inspection of the accused’s organ was made in the chambers of the judge. In its flaccid state, Accused’s penis measured 2 1/2 inches in length and 1 inch in diameter. (tsn., Nov. 27, 1975, p. 96) The size thereof on erection was not ascertained due to its inability to erect under the circumstances.

After the ocular inspection, a redirect examination of the accused was conducted. He testified that he got married in 1958 and that after the first sexual intercourse with his wife, who was then 16 years old, the organ of the latter bled.

This Court has consistently held that "when a woman testifies that she has been raped, she says all that need be said to signify that this crime has been committed." (U.S. v. Ramos, 1 Phil. 81; People v. Francisco Royeras, 56 SCRA 666; People v. Dayo and Tingson, 58 Phil. 420). In the case before Us, Melanie, the eleven-year-old complainant, categorically declared in open court that accused raped her. Thus,

"FISCAL:chanrob1es virtual 1aw library

When you were in your room at the second floor of your house, was there anything, unusual that transpired?

MELANIE:chanrob1es virtual 1aw library

Yes, sir. When I was sleeping, Jaime Acilar woke me up. Then he raped me." (tsn, Nov. 14, 1973, p. 46)

However, when asked to narrate the details of the alleged rape, complaining witness declared:jgc:chanrobles.com.ph

"Q: Inform this Court how the accused raped you.

A: He placed himself on top of me.

Q: What did he do when he placed himself on top of you?

A: He raped me.

Q: Why do you say he raped you?

A: "Ni-rape" niya ako.

ATTY. HORMILLO:chanrob1es virtual 1aw library

At this juncture, may we place into the record that despite her age, she has been repeatedly using the word "rape."

COURT:chanrob1es virtual 1aw library

Explain.

WITNESS:chanrob1es virtual 1aw library

He forced me.

Q: How?

A: He forced me and told me not to shout.

FISCAL:chanrob1es virtual 1aw library

How did he force you? Please narrate in detail,

A: He undressed me and placed himself on top of me. He removed my panty. Then he placed himself on top of me. Then he kissed me.

Q: What else, if anything?

A: Nothing more." 14

From the foregoing, it is evident that in employing the term "rape", Melanie did not fully comprehend its meaning. She had difficulty explaining how the alleged rape was committed and it was only after the Fiscal had read to her Question No. 8 and the corresponding Answer, set forth in Exhibit "C", that Melanie, as if on cue, was able to relate the details of the alleged rape, as follows:jgc:chanrobles.com.ph

"Q: I will read to you Question No. 8 of your statement. (Counsel reading the document.) After reading to you Question No. 8 and the Answer, please try to recall what the accused did to you on that particular date and time while you were inside your room.

A: A man entered my room and I saw that it was Jaime Acilar.

Q: What happened?

A: He undressed me and unzipped the zipper of his pants. He placed himself on top of me. Then he raped me.

Q: What do you mean when you said he raped you?

A: He placed himself on top of me and inserted his penis into mine.

Q: After the accused placed his organ into yours, what did he do?

A: He kissed me.

Q: How long more or less did he place himself and his organ inside yours?

A: For more than an hour.

Q: Are you sure of that?

A: Yes, sir." 15

We have reasons to doubt the veracity of this portion of her testimony. A girl, particularly one of tender age, who experiences sexual communication with a man for the first time, with or without her consent, would not likely forget the manner of its consummation. Such experience is of the most extraordinary character for a girl of complainant’s age that it would certainly leave an indelible mark in her memory, sustaining and unobscured, during the 5-month period intervening between the alleged rape and Melanie’s testimony in court. The girl would be able, without need of a reminder, albeit hesitatingly, to relate the details of her first sexual act if it were the truth; for in the realm of her experiences, there is little chance that she could on her own invent or draw from her imagination the details thereof, if it did not really happen.

To our mind, the testimony of Melanie that accused "undressed me and placed himself on top of me. He removed my panty. Then he placed himself on top of me. Then he kissed me. Nothing more." Bespeaks more of the truth than her later statements. These details were given candidly without prodding from the Fiscal, unlike her narration that accused "inserted his penis into mine," which the Fiscal was able to elicit with much difficulty. Besides, Melanie herself admitted having been coached by her mother with respect to what she was to tell the investigating officer:jgc:chanrobles.com.ph

"ATTY. HORMILLO:chanrob1es virtual 1aw library

You said that you were investigated by the police officers on June 3, 1973. Before you went to the police precinct on that particular date and time, did you have any conversation with your mother who was your companion then?

WITNESS:chanrob1es virtual 1aw library

Yes, sir.

Q: And did she tell you anything about what you are to tell the police officers who would investigate you then?

A: Yes, sir." 16

Furthermore, the first portion of her testimony is more in harmony with the clinical observations and findings of Dr. Angelo Singian that Melanie did not engage in sexual intercourse on the day in question. Due weight and consideration must be given Dr. Singian’s expert opinion as physical evidence of this sort is of the highest order in rape cases, speaking more eloquently than a hundred witnesses. 17

While it may be true, as observed by the lower court, citing the case of People v. Pascaran, 18 that "Opinion evidence cannot prevail over clear testimony of the complaining witness in rape cases," said doctrine does not apply to the case at bar, where there is no clear, satisfactory and convincing proof of the slightest penetration of accused’s sex organ into that of complainant’s. If it were true that accused was able to insert his organ into complainant’s vagina, remaining in such position for more than an hour, as claimed by Melanie, dilation of her genitals would have been readily perceived by the expert eye of Dr. Singian. And such condition of her genitalia would have been more evident if We take into account her statement in Exhibit C that "anim na beses na ho ako niya nagalaw." That Dr. Singian found nothing to indicate that this was the case, renders the testimony of complainant highly suspect.

Neither would the testimony of complainant’s mother, Imelda Pama, suffice to show the commission of consummated rape. During the redirect examination, the Fiscal asked her:jgc:chanrobles.com.ph

"FISCAL MACARAEG:chanrob1es virtual 1aw library

Now, when you entered the room, you stated that you noticed accused on top of your daughter who was still naked. Now, will you please describe to this Honorable Court the motion of accused if you noticed before you pulled him?

ATTY. HORMILLO:chanrob1es virtual 1aw library

If your honor, please, the witness only said that the accused was on top of her daughter.

COURT:chanrob1es virtual 1aw library

Precisely that is being asked. She may answer.

WITNESS:chanrob1es virtual 1aw library

No, sir. I did not notice." (p. 42, tsn, October 17, 1973)

On rebuttal, she testified, to wit:jgc:chanrobles.com.ph

"Q: The accused testified that when you saw them your daughter was only embracing the accused. What can you say about that?

A: No, sir.

Q: Will you please tell us the truth?

A: My daughter was sleeping in the room of my grandmother when he entered the room my daughter was already sleeping there.

ATTY. HORMILLO:chanrob1es virtual 1aw library

Objection. I will move to strike out the answer of the witness it not being responsive to the question.

COURT:chanrob1es virtual 1aw library

The testimony may remain.

Q: Did you see the accused inside the room?

A: Yes, Your Honor.

Q: Are you sure about that?

A: No, I did not see him.

Q: So, when you saw the accused for the first time inside the room what was he doing?

A: He was with my daughter.

Q: What do you mean by that?

A: He was on top of my daughter.

Q: What was he doing on top of your daughter?

A: He was having a sexual intercourse with my daughter (Itot).

Q: How do you know that he was having sexual intercourse with your daughter? Did you see his genitals?

A: No, I did not see, Your Honor.

Q: When the accused got off atop your daughter were you able to notice the genitals of the accused?

A: No, because I was confused and I pulled him.

Q: Was he wearing his pants on?

A: I am not sure because I was already confused.

Q: What about your daughter was she having her panty on?

A: She was pantyless.

Q: You did not see any panty there?

A: I did not return to the room anymore, because I pulled him downstairs.

Q: After you pulled the accused away you were able to see the genitals of your daughter?

A: I did not notice anymore because I was already confused then. I just pulled him downstairs.

Q: So, you were able to notice the push and pull movement of the accused?

A: Yes, Your Honor.

Q: About how many times more or less?

A: I cannot remember, your Honor." (pp. 90-92, tsn, Nov. 27, 1974)

The question, "So you were able to notice the push and pull movement of the accused?" is easily categorized as a leading question, which, as a general rule, is not permissible on direct examination. 19 More, the question itself presupposes that accused was doing the "push and pull movement", a fact which had not been previously established for nowhere in the entire testimony of the victim, did she declare such fact. Be that as it may, We take a dim view of the affirmative answer given thereto by the witness since it casts an intuitive doubt as to what the witness actually saw. Said doubt is further enhanced when We consider the observation made by defense counsel, Atty. Hormillo, prior to the presentation of Imelda Pama as rebuttal witness, to wit:jgc:chanrobles.com.ph

"ATTY. HORMILLO:chanrob1es virtual 1aw library

Before we proceed with the presentation of this rebuttal witness, may we make it of record that this witness was talking to the Fiscal for a very long time, your Honor, considering that she is under oath. The fiscal and the witness had been conferring for quite a long time. I have been calling the attention of the Fiscal not to make any conversation with her.

FISCAL:chanrob1es virtual 1aw library

May I know Your Honor if it is prohibited and under any rule?

ATTY. HORMILLO:chanrob1es virtual 1aw library

We do not know whether the witness is being coached or not. In fairness to the accused . . ." (p. 89, tsn, November 27, 1974).

Exercising utmost objectivity and caution in evaluating the evidence at hand in order to dispel completely the interplay of pity and compassion for complainant by reason of her age, We find that although there might have been an intent on the part of the accused to lie with complainant, complete execution of the crime intended did not take place due to Imelda’s timely arrival at the scene.

WHEREFORE, the judgment appealed from is modified in the sense that accused is hereby convicted of attempted rape and is, accordingly, sentenced to an indeterminate penalty of 2 years, 4 months and 1 day as minimum to 10 years as maximum; and to indemnify complainant in the amount of P4,000.00 by way of moral damages. No costs.

SO ORDERED.

Aquino, Concepcion, Jr., Guerrero, Abad Santos and Cuevas, JJ., concur.



MAKASIAR, J., concurring:chanrob1es virtual 1aw library

I concur. But sworn confession of appellant should not be considered against him for it was obtained in violation of Sec. 20, Art. IV of the 1973 Constitution.

Endnotes:

---

1. p. 43, tsn, October 17, 1973.

2. p. 92, tsn, November 27, 1974.

3. Exhibit A, p. 109, Original Records.

4. Exh. B, Original Records, p. 32.

5. Exh. C, p. 110, Original Records.

6. tsn, Oct. 15, 1974, p. 68.

7. p. 69, ibid.

8. p. 70, ibid.

9. p. 71, ibid.

10. Exhibit D, Original Record, p. 111.

11. Exhs. A and C, pp. 109 and 110, Original Records, respectively.

12. p. 14, tsn., November 19, 1974.

13. tsn, p. 13, ibid.

14. pp. 47-48, ibid.

15. p. 48, ibid.

16. p. 51, tsn., Nov. 14, 1973.

17. People v. Alexander Sacabin, 57 SCRA 707.

18. CA-G.R. No. 25877-R, Dec. 2, 1959.

19. Section 5, Rule 132 of the Rules of Court.

1. REMEDIAL LAW; CRIMINAL PROCEDURE PRELIMINARY INVESTIGATION; CITY COURT MAY CONDUCT PRELIMINARY EXAMINATION OVER CRIMINAL CASES FALLING WITHIN ITS ORIGINAL AND EXCLUSIVE JURISDICTION; PRIOR INVESTIGATION AND CERTIFICATION BY FISCAL, NOT A BAR. — Under Section 89 of the City Charter of San Jose City, the City Court may conduct preliminary examination of the estafa charge in the amount of P100.00, which falls within the original and exclusive jurisdiction of the city courts, against private respondent, the accused Atty. David T. Soriano, Jr., who may be granted the right to cross-examine the witnesses against him, notwithstanding the fact that the city fiscal had conducted and certified thereto the preliminary investigation in accordance with the provisions of Republic Act No. 5180.

MAKASIAR, J., concurring:chanrob1es virtual 1aw library

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; DETERMINATION OF PROBABLE CAUSE BY JUDGE AND "SUCH OTHER RESPONSIBLE OFFICER" ; CITY FISCAL NOT "RESPONSIBLE OFFICER" ALLUDED TO UNDER SECTION 3, ARTICLE IV OF 1973 CONSTITUTION. — The City Fiscal of San Jose City in the instant case is not "such other responsible officer as may be authorized by law" inasmuch as until now "no law or presidential decree has been enacted or promulgated vesting the said authority in a particular "responsible officer." And "until such law is enacted by the National Assembly, only the Judge can validly conduct a preliminary examination for the issuance of a warrant of arrest or search warrant" (Collector of Customs v. Villaluz, June 18, 1976, 71 SCRA 380, 186). Only the Judge, and no other official, can issue the warrant of arrest; and this power depends on the finding by the Judge himself of the existence of probable cause.

2. ID.; ID.; ID.; FINDING OF PROBABLE CAUSE BY FISCAL NOT BINDING ON JUDGE. — The determination of a probable cause by the prosecutor is not binding on the Judge who may conduct his own examination, although WE ruled in one case that the judge may rely on the investigation conducted by the fiscal or prosecutor (Amarga v. Abbas, 98 Phil. 739, 741-742). The ultimate decision of issuing a warrant of arrest rests on the Judge and in his exercise of said function, he may or may not rely on the preliminary investigation conducted by the fiscal. To conduct his own examination and not rely on the investigation of the fiscal rests entirely upon the discretion of the Judge. This is confirmed by Section 6 of Rule 112 of the Revised Rules of Court, which directs the Judge to issue the warrant of arrest when he is "satisfied from the preliminary examination conducted by him or by the investigation officer that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, . . ."

This is an appeal from the decision of the defunct Court of First Instance of Nueva Ecija, Branch VI, denying the petition for certiorari with preliminary injunction filed by the City Fiscal against the Hon. Cirilo V. Soriano, Presiding Judge of the City Court of San Jose City, Branch II, now Municipal Trial Court.

The factual and legal antecedents of the case are as follows:chanrob1es virtual 1aw library

On May 11, 1973, a complaint for estafa was filed with the Office of the City Fiscal of San Jose City against Atty. David T. Soriano, Jr., the private respondent herein, by Casimira Agustin Vda. de Mendoza, for allegedly misappropriating the amount of P100.00 given to him by the complainant "as filing fee and other court expenses" for a suit she intends to file against certain persons. Pursuant to the provisions of Republic Act No. 5180, otherwise known as the Law on Uniform Procedure of Preliminary Investigation, the City Fiscal conducted a preliminary investigation with due notice to and in the presence of the private Respondent. The accused cross-examined the complainant and her witnesses but waived his right to present evidence on his behalf.

The fiscal, having conducted the preliminary investigation and finding probable cause therefrom against the private respondent, filed the Information before the City Court of San Jose, the said Information containing the requisite certification that the preliminary investigation was conducted

". . . pursuant to the provisions of Rep. Act No. 5180, as amended by Rep. Act No. 732, the defendant having been given the chance to appear in person or by counsel at the said investigation and from such investigation, it was found out that there exists a reasonable ground to believe that the offense charged is committed and the accused is probably guilty thereof."cralaw virtua1aw library

On the same day, August 28, 1973, the accused Atty. David T. Soriano, Jr., filed with the court a "Motion Praying the Court to Conduct Preliminary Examination of the Witnesses Before the Issuance of a Warrant of Arrest." This was followed on the following day, August 29, 1973, by an "Addendum to Motion of Accused Dated August 28, 1973" wherein it is alleged, among other things:jgc:chanrobles.com.ph

"1. That prior to the institution of the above entitled information against the accused, a preliminary investigation was conducted by the City Fiscal of San Jose City. A preliminary investigation which from the very start was objected to by the accused on the ground that the said investigating City Fiscal cannot under any circumstance maintain a posture of fairness and impartiality citing several warranted reasons as may be gleaned from the following annexes marked A and A-1; B; C-C-1, which is hereto attached for the perusal and appreciation of the Honorable Court. These were however denied by Fiscal Maza, however, despite the pretensions to the contrary, the herein accused cannot believe in his judicious integrity as far as the investigation of this case is concerned pursuant and on the basis of the demands of fairness, justice and absolute objectivity. Hence, with futility in purpose in sight, the herein accused elected to waive the presentation of his evidence with the corresponding reservation to question the result of the investigation later, rather than submit the same before an investigator whose findings would be one-sided, partial and foregone.

2. The apprehension and firm belief of the accused as mentioned above has become a reality upon the institution of the information against him before the court. But what is there to warrant the same? A probable cause? There is none and this is so despite the non-presentation of the evidence of the respondent, now accused. To prove this point, a simple analysis of the evidence of the complainant is in order. She claimed that she gave the amount of one hundred pesos to the accused who is her lawyer for a claim of more than fifty thousand pesos. Now, if this is correct, how can the case be filed when the amount of one hundred pesos is not even enough to cover the required filing and miscellaneous fees of the court without taking into consideration the fees for the preparation of the necessary pleadings. Considering this fact, the amount given is a retainer fee of the lawyer and not filing fee as it is not enough. If it is not enough, how can the expected case be filed? Now, granting for the sake of argument although not admitting that the amount alluded above is a filing fee, to give the cause of the complainant the necessary leeway, there is no period agreed upon to file the case, hence, to find the accused susceptible of being charged of Estafa is premature and without probable basis. These are only some of the features of the case although there are some more, which will in a way show that really there is no basis for the charge. Nevertheless, whatever are the concrete perspective of the accused in connection with the case, I subordinate the same to the findings of the Honorable Court, in the event that an examination of the complainant and her witnesses is conducted in accordance with law; . . ."cralaw virtua1aw library

The city fiscal filed opposition to the two motions referred to above, claiming that pursuant to the provisions of Section 6, Rule 112 of the Revised Rules of Court, the Judge issuing the warrant of arrest is precluded from conducting a subsequent preliminary investigation of its own for the purpose of determining whether there is reasonable ground for the issuance of said warrant after the fiscal’s office had conducted its preliminary investigation on the case pursuant to the provisions of Republic Act No. 5180, as amended by Presidential Decree No. 77; that the same issue of inhibition of the city fiscal was already raised by the accused in the Department of Justice so that the same cannot be raised collaterally in the case below; and thirdly, that the City Court has not acquired jurisdiction over the person of the accused, so that any order which may be issued by the City Court in connection with the motions of the accused would be illegal.

The City Court on September 10, 1973 issued its Order granting the prayer of the accused in his two motions, and ordered the Clerk of Court to "direct the appearance of the complainant and her witnesses before this court for a preliminary examination prior to the issuance of a warrant of arrest, should the issuance of one become necessary." According to the City Court, "it can conduct an examination of the complainant and her witnesses before the issuance of warrant of arrest in a case triable before it on the merits, and that it can validly resolve the motion filed by the accused dated August 28, 1973 . . ."cralaw virtua1aw library

The city fiscal filed a motion for reconsideration, arguing that the law cited by the City Court in support of its Order of September 10, 1973 applied only in cases recognizable by the Court of First Instance, not in cases cognizable by the City Court in the exercise of its original and exclusive jurisdiction; and that the city fiscal is one of "such other responsible officer as may be authorized by law" included in Section 3, Article IV of the New Constitution, thus:jgc:chanrobles.com.ph

"Sec. 3. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as may be authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized."cralaw virtua1aw library

For lack of merit, the city fiscal’s motion for reconsideration was denied by the City Court.

On October 12, 1973, the city fiscal filed before the Court of First Instance of Nueva Ecija (Cabanatuan City) a petition for certiorari with writ of preliminary injunction against the Honorable Cirilo V. Soriano, Presiding Judge, City Court, Branch II, San Jose City, and prayed that "the orders of the Court, dated September 10, 1973 and September 25, 1973, Annex F and Annex I, respectively, be declared null and void and set aside and that the respondent Judge be ordered to issue the warrant of arrest on the basis and on the faith of the certification of the city fiscal as appearing in the information that a probable cause exists and that the accused is probably guilty thereof."cralaw virtua1aw library

The petition was subsequently amended to include Atty. David T. Soriano, Jr. as party respondent, who submitted his answer to the petition, denying the material averments thereof and stressing the fact that what the City Court directed in its orders of September 10 and 25, 1973 was the preliminary examination of the complainant and her witnesses before the issuance of the warrant of arrest, which is a recognized prerogative of the said court, citing the case of Amarga v. Abbas, 52 O.G. 2545, 98 Phil. 739 and Sec. 3, Art. IV of the New Constitution.

The case having been submitted jointly by the parties on the basis of the pleadings and memoranda filed, the court on January 4, 1974 rendered judgment in favor of respondents, Judge Cirilo V. Soriano and Atty. David T. Soriano, Jr., the Court of First Instance of Nueva Ecija, Fourth Judicial District, Branch VI, holding that" (t)he preliminary investigation, therefore, conducted by the petitioner which form the basis of filing in the City Court of San Jose City of Criminal Case No. 1459 did not dispense with the duty of the respondent Judge to exercise his judicial power of determining before issuing the corresponding warrant of arrest whether or not probable cause exists," (Provincial Fiscal Amarga v. Hon. Judge Abbas, G.R. No. I-8666, March 28, 1956, 98 Phil. 739) and citing the case of U.S. v. Ocampo, 18 Phil. 1 where the Supreme Court held that the question whether probable cause exists or not must depend upon the judgment of the judge or magistrate issuing the warrant of arrest. His conclusion as to whether probable cause existed or not is final and conclusive. If he is satisfied that probable cause exists from the facts stated in the complaint made upon by the investigation conducted by the prosecuting attorney, then the conclusion is sufficient upon which to issue the warrant of arrest. He may, however, if he is not satisfied, call such witnesses as he may deem necessary before issuing the warrant. Accordingly, the court directed that:jgc:chanrobles.com.ph

"In view of the foregoing the instant petition for certiorari is hereby denied and dismissed, and it is ordered that the respondent Judge proceed immediately without unnecessary delay with the preliminary examination contemplated in his order."cralaw virtua1aw library

On appeal to the Court of Appeals (now the Intermediate Appellate Court) the case was certified to this Court pursuant to Section 3, Rule 50 and Section 31 of the Judiciary Act. As per Our Resolution of February 27, 1976, the case was ordered docketed in this Court and declared submitted for decision.

The basic legal issue to be resolved herein is whether or not a city court, in a criminal case falling within its original and exclusive jurisdiction, may still conduct a preliminary examination for the purpose of determining the issuance of a warrant of arrest, despite the fact that the city fiscal had already conducted a preliminary investigation, had certified that the preliminary investigation was conducted "pursuant to the provisions of Republic Act No. 5180, as amended by Republic Act No. 732, the defendant having been given the chance to appear in person or by counsel at the said investigation and from such investigation, it was found out that there exists a reasonable ground to believe that the offense charged is committed and the accused is probably guilty thereof," and had filed the corresponding information with said city court.

The People contends that the lower court erred in holding that the preliminary investigation conducted by the city fiscal, basis of the information for estafa in the amount of P100.00 filed in the City Court of San Jose City, did not dispense said City Court from conducting another preliminary examination or investigation before the issuance of the warrant of arrest, citing Sections 29 and 88 of the San Jose City Charter (Republic Act 6051, approved August 4, 1969) which enumerates the powers and duties of the City Fiscal and prescribes the procedure in the City Court in the prosecution for violation of laws and ordinances, to wit:jgc:chanrobles.com.ph

"SECTION 29. The City Fiscal — His powers and duties. — There shall be a city fiscal and assistant city fiscal who shall be the chief and assistant chief of the law department, and who shall discharge their duties under the general supervision of the Secretary of Justice. The city fiscal shall be the chief legal adviser of the city and all offices and departments thereof. He shall have the following powers and duties:chanrob1es virtual 1aw library



"(g) He shall cause to be investigated all charges of crimes, misdemeanors and violations of law and city ordinances brought to his knowledge, and have the necessary information or complaints prepared or made against the accused. He or any of his assistants may conduct such investigations by taking oral evidence of reputed witnesses and for this purpose may issue subpoena to summon witnesses to appear and testify under oath before him, and subpoena duces tecum for the production of documents and other evidence, The attendance of an absent or recalcitrant witness may be enforced by application for a warrant of arrest to the city court or to the Court of First Instance."cralaw virtua1aw library

"SECTION 88. Procedure in City Court in prosecution for violation of laws and ordinance. — In a prosecution for the violation of any ordinance, the first process shall be summons; except that a warrant for the arrest of the offenders may be issued in the first instance upon the affidavit of any person that such ordinance has been violated; and person making the complaint has reasonable grounds to believe that the party charged is guilty thereof, which warrant shall conclude: ‘Against the ordinance of the city in such case made and provided.’ All proceedings and prosecutions for offense against the laws of the Philippines shall conform to the rules relating to process, pleading, practice and procedure for the judiciary of the Philippines, and such rules shall govern the city court and its officers in all cases insofar as the same may be applicable. An appeal from the city court to the Court of First Instance shall be governed by the provisions of the Rules of Court."cralaw virtua1aw library

According to the Solicitor General, the above sections are similar to Sections 38 (b) and 43 of the charter of the City of Manila, respectively, to wit:jgc:chanrobles.com.ph

"SECTION 38(b). The City Fiscal shall cause to be investigated all charges of crimes and violations of ordinances and have the necessary informations or complaints prepared or made against the persons accused. He or any of his assistants may conduct such investigations by taking oral evidence of reputed witnesses, and for this purpose may issue subpoena, summon witnesses to appear and testify under oath before him, and the attendance or evidence or any absent or recalcitrant witness may be enforced by application to the municipal court or the Court of First Instance. No witness summoned to testify under this section shall be under obligation to give any testimony tending to incriminate himself."cralaw virtua1aw library

"SECTION 43. Procedure to municipal court in prosecution for violations of laws and ordinances. — In a prosecution for the violation of any ordinance, the first process shall be a summons; except that a warrant for the arrest of the offender may be issued in the first instance upon the affidavit of any person that such ordinance has been violated, and that the person making the complaint has reasonable grounds to believe that the party charged is guilty thereof, which warrant shall conclude: ‘Against the ordinances of the city in such case made and provided.’ All proceedings and prosecutions for offense against the laws of the Philippines shall conform to the rules relating to process, pleading, practice, and procedure for the judiciary of the Philippines and such rules shall govern the municipal court and its officers in all cases in so far as the same may be applicable."cralaw virtua1aw library

And since there is "great similarity in the charter provisions of the City of Manila and San Jose City, insofar as the power of the City Fiscal to investigate charges of crime and the procedure for the prosecution of violations of law and ordinances in the city courts are concerned," and that" (i)n the City of Manila, the rule is that the Municipal Judge has no authority to conduct either a preliminary examination or a preliminary investigation," the Solicitor General maintains that this rule in the City of Manila should also apply to San Jose City, in that it suffices. that if the City Fiscal of San Jose finds that there is a prima facie showing that the accused has committed the offense complained of, said City Fiscal files "the corresponding information with the certification made under oath that he conducted the investigation in accordance with law," as was done at bar, and "the court shall forthwith issue the warrant of arrest."cralaw virtua1aw library

We do not agree with the position of the appellant for the City Charter of San Jose City provides under Section 89 thereof the following:jgc:chanrobles.com.ph

"SECTION 89. Preliminary examinations in the City Fiscal ‘s Office, City Court and Courts of First Instance. — Each person arrested shall, without necessary delay, be brought before the city fiscal, the city court or the Court of First Instance for preliminary hearing, release on bail, or trial. In cases triable in the city court for violations of city ordinances, the defendant shall not be entitled as of the right to a preliminary examination, except to summary one to enable the court to fix the bail, in any case where the prosecution announces itself ready and is ready for trial within three days, not including Sundays, after the request for an examination is presented. In all cases brought to the office of the city fiscal involving crimes cognizable by the Court of First instance, where the accused is not already in the legal custody of the police, no complaint or information shall be filed without first giving the accused a chance to be heard in a preliminary investigation, where such accused can be subpoenaed and appears before the investigating fiscal, with the right to cross-examine the complainant and his witnesses: Provided, That when the accused is detained, he may ask for a preliminary investigation, but be must sign a waiver of the provision of Article One hundred twenty-five of the Revised Penal Code, as amended: And provided further, That if the case has already been filed in court, he may ask for a reinvestigation thereof later on with the same right to cross-examine the witnesses against him: Provided, finally, That notwithstanding such waiver the said investigation must be terminated within seven days, from its inception." (Emphasis supplied)

The charter creating the City of San Jose is, to Our mind, decisive and controlling in the case at bar. In the case of Callanta v. Villanueva, 77 SCRA 377, We held that unlike the city courts of Manila, the city courts of Dagupan City are authorized to conduct preliminary investigations, the Court, speaking through then Justice, now Chief Justice Fernando, thus:jgc:chanrobles.com.ph

"2. Nor can it be concluded that there is justification for the tone of certainty of counsel for petitioner that only the City Fiscal of Dagupan may conduct a preliminary examination. Apparently, he had in mind Sayo v. Chief of Police of Manila. That was a decision involving the Charter of the City of Manila. The opinion of Justice Feria did state the following: ‘Under the law, a complaint charging a person of commission of an offense cognizable by the courts of Manila is not filed with the municipal court or the Court of First Instance of Manila because as above stated the latter do not make or conduct preliminary investigation . . .’ Such a doctrine is inapplicable. The reliance is, therefore, misplaced. The Charter of the City of Dagupan cannot be any clearer. The City Court of Dagupan City ‘may also conduct preliminary investigation for any offense, without regard to the limits of punishment, and may release, or commit and bind over any person charged with such offense to secure his appearance before the proper court.’

At this juncture, it is pertinent and very enlightening to note the concurring opinion of Justice Aquino in the Callanta case, wherein it is pointed out that Section 77 of the Dagupan City Charter expressly empowers its City Court (formerly Municipal Court) to "conduct preliminary investigation for any offense, without regard to the limits of punishment" and that this provision is also found in Section 87 of the Judiciary Law and in Section 2, Rule 112 of the Rules of Court which provides that "every Justice of the Peace, Municipal Judge (meaning City Judge), City or Provincial Fiscal, shall have authority to conduct preliminary examination or investigation in accordance with these rules of all offenses alleged to have been committed within his municipality, city or province, cognizable by the Court of First Instance." It is also found in the last sentence of Section 41 of Republic Act No. 409, the Revised Charter of Manila, which took effect on June 18, 1949 or after Sayo v. Chief of Police of Manila, 80 Phil. 859 was decided. But this provision is not found in Commonwealth Act No. 326, the Charter of Bacolod City, under which Montelibano v. Ferrer, 97 Phil. 228 was decided nor in the old Manila Charter found in the Revised Administrative Code. Hence, in the Sayo and Montelibano cases, it was held that the City Court could not conduct preliminary investigations.

We, therefore, hold that under the above-quoted and underlined provisions of the City Charter of San Jose City, the City Court may conduct preliminary examination of the estafa charge against private respondent, the accused Atty. David T. Soriano, Jr., who may be granted the right to cross-examine the witnesses against him, notwithstanding the fact that the city fiscal had conducted and certified thereto the preliminary investigation in accordance with the provisions of Republic Act No. 5180.

We further note from the Motion of private respondent dated August 28, 1973 praying the court to conduct preliminary examination of the witnesses before the issuance of a warrant of arrest and the Addendum to the same motion filed August 29, 1973 that said pleadings allege substantial grounds to dispute the findings of the prosecuting fiscal. It is therein alleged that the P100.00 given by the complainant to the accused lawyer to pay for the filing fees and other court expenses and alleged to have been misappropriated was not sufficient to pay for the filing fees and other court expenses for the P50,000.00 damage suit to be filed by said lawyer-accused in behalf of his client, the complainant, for the death of the latter’s husband and that said amount of P100.00 was his retainer’s fee in the case. These grounds appear to be not only substantial but also justifiable which if substantiated the City Court may properly consider in determining whether to issue or not the warrant of arrest against the lawyer, the private respondent herein. It is fair to assume that having heard the evidence for the accused, the preliminary examination conducted by the City Court may result in avoiding a malicious or unfounded criminal prosecution of the accused person (Luna v. Plaza, 26 SCRA 310) which after all is the ultimate purpose of a preliminary investigation.

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the petition is hereby DISMISSED. The City Court of San Jose City, Branch II, is hereby directed to proceed accordingly pursuant to its Order of September 10, 1973.

No costs.

SO ORDERED.

Concepcion, Jr. and De Castro, JJ., concur.

Abad Santos and Escolin, JJ., concurs in the result.



AQUINO, J., concurring:chanrob1es virtual 1aw library

I concur in the result. What accused David T. Soriano actually complains about is that City Fiscal Maza’s charge of estafa, punished by arresto mayor minimum and medium (two months and one day to six months), a light offense exclusively cognizable by the city court, is baseless. He was unjustly indicted. The sum of P100 given to him by the complainant was a retaining fee, not for filing fee. So, there is no estafa (Compare Neri v. Liwag, 107 Phil. 854). He feels aggrieved that because of the unjust charge he would be arrested.

The hearing to be conducted by the city court pursuant to its order of September 30, 1973 should be a part of the trial. There is no preliminary investigation for light offense, only for offenses cognizable by the Regional Trial Court, formerly Court of First Instance (Sec. 1, Rule 112, Rules of Court; Marinas v. Siochi, L-25707, May 14, 1981, 104 SCRA 423).

Ordinarily, the investigation conducted by the fiscal regarding the commission of a light offense is sufficient and will not be duplicated by the city court (People v. Villanueva, G.R. No. 56443, December 19, 1981, 110 SCRA 465).

MAKASIAR, J., concurring:chanrob1es virtual 1aw library

My concurrence is based on Article IV, Section 3 of the 1973 Constitution, to wit:jgc:chanrobles.com.ph

"Sec. 3. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall not be violated, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined by the judge, or such other responsible officer as maybe authorized by law, after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched, and the persons or things to be seized" (Italics supplied).

The City Fiscal of San Jose City in the instant case is not "such other responsible officer as may be authorized by law" inasmuch as until now "no law or presidential decree has been enacted or promulgated vesting the said authority in a particular "responsible officer." And "until such law is enacted by the National Assembly, only the Judge can validly conduct a preliminary examination for the issuance of a warrant of arrest or search warrant" (Collector of Customs v. Villaluz, June 18, 1976, 71 SCRA 380, 386).

Only the Judge, and no other official, can issue the warrant of arrest; and this power depends on the finding by the Judge himself of the existence of probable cause.

The determination of a probable cause by the prosecutor is not binding on the Judge who may conduct his own examination, although WE ruled in one case that the Judge may rely on the investigation conducted by the fiscal or prosecutor (Amarga v. Abbas, 98 Phil. 739, 741-742). The ultimate decision of issuing a warrant of arrest rests on the Judge and in his exercise of said function, he may or may not rely on the preliminary investigation conducted by the fiscal. To conduct his own examination and not rely on the investigation of the fiscal rests entirely upon the discretion of the Judge. This is confirmed by Section 6 of Rule 112 of the Revised Rules of Court, which directs the Judge to issue the warrant of arrest when he is "satisfied from the preliminary examination conducted by him or by the investigating officer that the offense complained of has been committed and that there is reasonable ground to believe that the accused has committed it, . . ."

1. LABOR AND SOCIAL LEGISLATIONS; LABOR CODE; LABOR RELATIONS; VOLUNTARY ARBITRATION; DECISION OF ARBITRATORS, GIVEN HIGHEST RESPECT; EXERCISE OF JUDICIAL REVIEW, NOT PRECLUDED. — We agree with the petitioner that the decisions of the voluntary arbitrators must be given highest respect and as a general rule must be accorded a certain degree of finality. It is not correct, however, that this respect precludes the exercise of judicial review over their decisions. Article 262 of the Labor Code making voluntary arbitration awards final, inappealable, and executory except where the money claims exceed P1,000.00 or 40% of paid-up capital of the employer or where there is abuse of discretion or gross incompetence refers to appeals to the National Labor Relations Commission and not to judicial review. Inspite of statutory provisions making" ‘final" the decisions of certain administrative agencies, we have taken cognizance of petitions questioning these decisions where want of jurisdiction, grave abuse of discretion, violation of due process, denial of substantial justice, or erroneous interpretation of the law were brought to our attention.

2. ID.; ID.; ID.; ID.; ID.; ID.; RATIONALE. — A voluntary arbitrator by the nature of her functions acts in a quasi-judicial capacity. There is no reason why her decisions involving interpretation of law should be beyond this Court’s review. Administrative officials are presumed to act in accordance with law and yet we do not hesitate to pass upon their work where a question of law is involved or where a showing of abuse of authority or discretion in their official acts is properly raised in petitions for certiorari.

3. ID.; ID.; EMPLOYER-EMPLOYEE RELATIONSHIP; PROBATIONARY EMPLOYMENT; TERMINATION THEREOF; PRIOR CLEARANCE, NOT NECESSARY. — Under the definition in Section 1 of the Implementing Instructions, which requires a written prior clearance from the Secretary of Labor before termination of a regular employee, a regular employee is one with an aggregate service of at least twelve months for the last two consecutive years prior to the proposed termination. Ordanoso was not a regular employee but a probationary employee when his services were terminated. It appears clear from the law that he was not covered by the requirement of a written prior clearance from the Secretary of Labor.

4. ID.; ID.; ID.; ID.; ID.; REPORTING REQUIREMENT IN LIEU OF CLEARANCE; DISPENSED WITH IN CASE AT BAR. — Neither was he covered by Section 3 of the implementing rules which requires a report, not a prior clearance, whenever an employee with less than one year of service is dismissed, suspended or laid-off. Ordanoso had slightly a year of service. There is a hiatus or gap in the clearance and reporting requirements provided by the administrative regulations. As a general rule, such a gap should be resolved in favor of the dismissed worker. For an employee who has served one year and one day not to have the minimal protection of at least a report on the cause of his dismissal while those who have served less than a year are entitled to such a report also appears incongruous. In this particular case, however, the poor job performance of Ordanoso is documented. The hearings before the respondent arbitrator establish that the respondent employer did not act arbitrarily or even wrongly in declaring Ordanoso’s work performance as below the required ratings.

TEEHANKEE, J, concurring:chanrob1es virtual 1aw library

1. LABOR AND SOCIAL LEGISLATIONS; LABOR CODE; EMPLOYER-EMPLOYEE RELATIONSHIP; TERMINATION OF EMPLOYMENT; UNSATISFACTORY JOB PERFORMANCE OF PROBATIONARY EMPLOYEE, SUFFICIENT GROUND. — I concur on the ground that petitioner Pablito Ordanoso was not a regular employee but a probationary employee and there was manifest valid cause for his dismissal or separation as such. He had been given sufficient warnings about his unsatisfactory job performance and therefore his dismissal at the end of the second six months trial period was for a just cause in accordance with the terms of his probationary employment.

2. ID.; ID.; ID.; ID.; ID.; GAP IN CLEARANCE AND REPORTING REQUIREMENTS, RESOLVED IN FAVOR OF EMPLOYEE. — On the question, however, of whether his dismissal falls under Section 3 of the Implementing Instructions quoted in the main opinion, whereby the employer is required to submit a report of his dismissal which may be effected without prior clearance, the gap or hiatus in the clearance and reporting requirements should be resolved in his favor and those similarly circumstanced. In other words, the fact that he and other probationary workers may have slightly more than one year of service would not mean that the employer would not have to file the corresponding report of their dismissal. As is aptly stated in the main opinion," for an employee who has served one year and one day not to have the minimal protection of at least a report on the cause of his dismissal while those who have served less than a year are entitled to such a report (also) appears incongruous." The employer’s failure to file such report would not, however, make his dismissal for just cause illegal in view of the vagueness or ambiguity of the Administrative Instructions. But the employer who fails to file such report may be subjected to such administrative penalties or sanctions as may be duly provided.

In this petition for review on certiorari, we are asked to interpret Section 11 of Presidential Decree No. 21, ("Creating A National Labor Relations Commission And For Other Purposes") in relation to Sections 1, 3, and 10 of the Implementing Instructions No. 1 dated November 9, 1972 issued by the then ad hoc National Labor Relations Commission. The provisions refer to the clearance requirements for the dismissal, lay-off, or termination from employment of an employee by his employer.

The facts of the case are not in dispute. Petitioner Pablito Ordanoso entered into a contract of temporary employment for the period of six (6) months beginning from October 3, 1973 to April 3, 1974 with the respondent corporation. Incorporated in the contract is a stipulation that "it is understood that the company has the right to separate you from its employ at anytime within the above period should your services not be satisfactory." When the contract expired on April 3, 1974, Ordanoso entered into another 6-month contract of employment, this time as probationary worker with the respondent company, from April 4, 1974 to October 4, 1974. A note to the effect that "this extension of your employment contract is being given with formal advice that you improve on your performance" was added to the stipulation which formed part of the first contract.

The respondent company through "group leaders" conducts periodic performance ratings on the workers. The results are considered for the workers’ conversion from probationary to regular permanent employment. The criteria for performance ratings were cooperation, attendance, quality of work, skill, initiative and interest in work, leadership, obedience and intelligence.

In the case of Ordanoso, Mr. Glicerio Ledesma, production manager, explained that the aforestated note attached to his contract of employment shows that Ordanoso’s performance rating during his first six months employment in the company was "just passing." Subsequent performance ratings of Ordanoso by his group leaders submitted to Mr. Ledesma showed that his work performance was not satisfactory. Hence, in the memorandum prepared by Ledesma on workers’ performance ratings which he sent to K. Bachmann, Jr., general manager, Ordanoso’s name was included among those with below average performance. On the following day, Ledesma sent a memorandum to Ordanoso, telling him to improve his performance as he only attained a 2.75 rating.

On September 10, 1974, a memorandum was issued by Ledesma to some workers, among them Ordanoso, warning them of their low average performance with the advice to perform on the average performance level.

On October 3, 1974, Ledesma terminated Ordanoso’s services in the company because of his below average performance rating.

Thereafter, the following events transpired:jgc:chanrobles.com.ph

"On October 4, 1974, complainant union (FFW Oceanic BIC Manufacturing Chapter), through its union president, Alfonso Leonido sent a letter dated October 3, 1974, to the Management of the respondent company wherein the union asked the company for a grievance conference in order to discuss the dismissal of complainant Pablito Ordanoso effective October 4, 1974. Apparently, the parties failed to reach an amicable settlement in the grievance conference. On October 25, 1974, the complainants (the local union and Pablito Ordanoso) filed a complaint with the NLRC, Dept. of Labor, docketed as NLRC Case No. Lr-6538. In the said complaint, the complainants charged the respondents company and Ledesma for:jgc:chanrobles.com.ph

"1. Unfair Labor Practice;

"2. Unjust and illegal dismissal of complainant Pablito Ordanoso;

"3. Violation of the CBA;

"4. Violation of P.D. No. 21 and its Implementing Rules.





"The afore-mentioned complaint (bearing another case no. Lr-431-74) was finally disposed of by the conciliator of the Dept. of Labor, Regional Office No. IV, on January 16, 1975, by referring back the case to the parties for exhaustion of the grievance procedure in accordance with the CBA . . .



On January 20, 1975, the Federation of Free Workers, the mother federation of complainant union, sent a letter to the management of respondent company wherein the Federation suggested three (3) names to select from, as voluntary arbitrator. The parties failed to mutually select any of the three named in said letter but later selected Atty. Flerida Ruth P. Romero of the U.P. Law Center, Diliman, Quezon City . . ." (Petition, Rollo, pp. 5-6).

After due hearing, the voluntary arbitrator issued her decision dated April 30, 1976 upholding the company’s actions. The dispositive portion of the decision reads:chanrob1es virtual 1aw library



"Ipinapasya ng Tagahatol na ang pagtitiwalag kay Ordanoso ay hindi unfair labor practice, hindi labag sa collective bargaining contract at sa P.D. No. 21 o sa alituntunin nito, sapagkat hindi nauukol sa kanya ang pangangailangan ng written clearance bago magtanggal ng isang manggagawa.

"Isinagawa sa siyudad ng Quezon nitong ika-30 ng Abril, 1976."cralaw virtua1aw library

The respondents raise a jurisdictional issue. They contend that this Court does not have the power to review the voluntary arbitrator’s award on the ground that: 1) Presidential Decree No. 442, (Labor Code) precludes this Court from reviewing voluntary arbitration awards save on special circumstances which are not present in the instant case; and 2) the nature of voluntary arbitration awards should be considered final.

Petitioner Ordanoso was dismissed on October 4, 1974. He filed the complaint for illegal dismissal with the Department of Labor on October 25, 1974. Article 294 of the Labor Code, as amended provides: "All actions or claims accruing prior to the effectivity of this Code shall be determined in accordance with the laws in force at the time of their accrual." The law applicable in the instant case is Presidential Decree No. 21. In fact, the voluntary arbitrator herself admits this fact in her decision when she said: "Noong itiniwalag si Ordanoso noong ika-4 ng Oktubre, 1974, ang batas na umiral ukol sa pagtatanggal ng mga tauhan ng mga bahay-kalakal ay ang Presidential Decree No. 21 at mga alituntunin nito . . ."cralaw virtua1aw library

Anent the proposition that voluntary arbitration awards should be considered final, the respondents cite American precedents:chanrob1es virtual 1aw library

The nature of an arbitrator’s award is that it is equivalent to the first law of the parties. It is so because the disputants have willingly and contractually consented that the will of the arbitrator shall be substituted in place of theirs. For, after all, the parties have mutually reposed their trust and confidence in the honesty, integrity, competence and capability of the arbitrator.

Such being the case, the role of the reviewer of a voluntary arbitration award is very limited. It merely acts as a guardian to see to it that no serious miscarriage of justice may be perpetuated or that public order or public policy might be subverted.

The refusal of courts to review the merits of an arbitration award is the proper approach to an arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards. (Margetta v. Pam Pam Corporation, 354 F. Supp. 158, 1973), p. 160; cited in Fernandez, Labor Arbitration [1975], p. 355.



The refusal of courts to review the merits of an arbitration award is the proper approach to an arbitration under collective bargaining agreements. The federal policy of settling labor disputes by arbitration would be undermined if courts had the final say on the merits of the awards. (Union Emp. Div., Etc. v. Columbia Typographical Union No. 101, 353 F. Supp. 1348); (1973), p. 1349; cited in Fernandez, Ibid., pp. 355-356;

We hold that the District Court misconstrued its mandate. The duty of the courts is not to determine whether a prima facie case on the merits has been put forth by the party seeking arbitration. It is not the province of the court to look into the facts of the case. (Chambers v. Beaunit Corp., 404 F. 2d 128, Sanitary Corp. v. Local 7, International Brotherhood of Operative Potters, 358 F. 2d 455, 458 (6th Cir. 1966). The arbitrator is not to be viewed as a special master who will be called in after a prima facie case on the merits has been made out. (Local No. 6, M. & P. Int. U. of Am. v. Boyd G. Heminger, Inc., 483 F. 2d 129); (1973), p. 131.



It is particularly understood that the arbitral process in collective bargaining presupposes that the parties wanted the informed judgment of an arbitrator, precisely for the reason that judges cannot provide it. Therefore, a court asked to enforce a promise to arbitrate should ordinarily refrain from involving itself in the interpretation of the substantive provisions of the contract. (Morris v. Werner-Continental, Inc., 466 F. 2d (1185); (1972), pp. 1190-1191, Ibid.).

We agree with the petitioner that the decisions of voluntary arbitrators must be given the highest respect and as a general rule must be accorded a certain measure of finality. This is especially true where the arbitrator chosen by the parties enjoys the first rate credentials of Professor Flerida Ruth Pineda Romero, Director of the U.P. Law Center and an academician of unquestioned expertise in the field of Labor Law. It is not correct, however, that this respect precludes the exercise of judicial review over their decisions. Article 262 of the Labor Code making voluntary arbitration awards final, inappealable, and executory except where the money claims exceed P100,000.00 or 40% of paid-up capital of the employer or where there is abuse of discretion or gross incompetence refers to appeals to the National Labor Relations Commission and not to judicial review.

Inspite of statutory provisions making "final" the decisions of certain administrative agencies, we have taken cognizance of petitions questioning these decisions where want of jurisdiction, grave abuse of discretion, violation of due process, denial of substantial justice, or erroneous interpretation of the law were brought to our attention. There is no provision for appeal in the statute creating the Sandiganbayan but this has not precluded us from examining decisions of this special court brought to us in proper petitions. Thus, we have ruled:jgc:chanrobles.com.ph

"Yanglay raised a jurisdictional question which was not brought up by respondent public officials. He contends that this Court has no jurisdiction to review the decisions of the NLRC and the Secretary of Labor `under the principle of separation of powers’ and that judicial review is not provided for in Presidential Decree No. 21.

"That contention is a flagrant error. `It is generally understood that as to administrative agencies exercising quasi-judicial or legislative power there is an underlying power in the courts to scrutinize the acts of such agencies on questions of law and jurisdiction even though no right of review is given by statute’ (73 C.J.S. 506, note 56).

"The purpose of judicial review is to keep the administrative agency within its jurisdiction and protect substantial rights of parties affected by its decisions’ (73 C.J.S. 507, Sec. 165). It is part of the system of checks and balances which restricts the separation of powers and forestalls arbitrary and unjust adjudications.

"Judicial review is proper in case of lack of jurisdiction, grave abuse of discretion, error of law, fraud or collusion (Timbancaya v. Vicente, 62 O.G. 9424; Macatangay v. Secretary of Public Works and Communications, 63 O.G. 11236; Ortua v. Singson Encarnacion, 59 Phil. 440).

" `The courts may declare an action or resolution of an administrative authority to be illegal (1) because it violates or fails to comply with some mandatory provision of the law or (2) because it is corrupt, arbitrary or capricious’ (Borromeo v. City of Manila and Rodriguez Lanuza, 62 Phil. 512, 516; Villegas v. Auditor General, L-21352, November 29, 1966, 18 SCRA 877, 891). [San Miguel Corporation v. Secretary of Labor, 64 SCRA 60].



"It is now settled rule that under the present Labor Code, (Presidential Decree No. 442, as amended [1974] if lack of power or arbitrary or improvident exercise of authority be shown, thus giving rise to a jurisdictional question, this Court may, in appropriate certiorari proceedings, pass upon the validity of the decisions reached by officials or administrative agencies in labor controversies. So it was assumed in Maglasang v. Ople, (L-38813, April 29, 1975, 63 SCRA 508). It was explicitly announced in San Miguel Corporation v. Secretary of Labor, (L-39195, May 16, 1975, 64 SCRA 56) the opinion being penned by Justice Aquino. Accordingly, cases of that character continue to find a place in our docket. (Cf. United Employees Union of Gelmart Industries v. Noriel, L-40810, Oct. 3, 1975, 67 SCRA 267) The present suit is of that category. [Kapisanan ng mga Manggagawa sa La Suerte-Foitaf v. Noriel, 77 SCRA 415-416].

A voluntary arbitrator by the nature of her functions acts in a quasi-judicial capacity. There is no reason why her decisions involving interpretation of law should be beyond this Court’s review. Administrative officials are presumed to act in accordance with law and yet we do not hesitate to pass upon their work where a question of law is involved or where a showing of abuse of authority or discretion in their official acts is properly raised in petitions for certiorari.

On the merits of the petition, the petitioner questions the voluntary arbitrator’s decision that under Presidential Decree No. 21, petitioner Ordanoso was properly dismissed by the respondent company without a written clearance from the Secretary of Labor, to wit:chanrob1es virtual 1aw library



"Nang itiniwalag si Ordanoso noong ika-4 ng Oktubre, 1974, ang batas na umiiral ukol sa pagtatanggal ng mga tauhan sa mga bahay-kalakal ay ang Presidential Decree No. 21 at mga alituntunin nito. Ayon sa ikalabing-isang talata ng nasabing batas, walang pangasiwaan na maaring magtanggal ng kanilang mga regular na empleado na nakapanungkulan na nang isang taon nang walang written clearance ng Kalihim ng Paggawa.

"Ano naman ang pakahulugan ng batas sa taguring regular na empleado? Ayon sa Implementing Instructions No. 1 na nagpapaliwanag sa nasabing ikalabing-isang talata ng P.D. No. 21, ang regular na empleado ay yaong manggagawa na nakapaglingkod na nang hindi kukulangin sa labingdalawang buwan sa loob ng nakaraang magkasunod na dalawang taon bago natanggal ang nasabing manggagawa, kahit anupaman ang taguri ng pangasiwaan sa kaniyang pagkakahirang. Alalaong baga, upang mataguriang regular na empleado, kailangan ay, una, ang manggagawa ay kawani na ng bahay-kalakal nang hindi kukulangin sa dalawang taon nang nakararaan, at ikalawa, siya ay nakapaglingkod na nang hindi kukulangin sa kabuuang labindalawang buwan na hindi kailangang magkakasunod sa loob noong nasabing dalawang taon bago naganap ang pagtitiwalag. Kapag mapatunayan ng isang manggagawa na ang dalawang pangangailangang iyan ay nasa kanya, siya ay masasabing regular na empleado at hindi siya kagyat na matatanggal nang walang written clearance ng Kagawaran ng Paggawa. Kung ang manggagawang itiniwalag ay kulang sa isang pangangailangang iyan, siya’y hindi regular na empleado at hindi na kailangan ang written clearance upang siya ay matanggal. Mapapansin na ang manggagawang higit na matagal ang panunungkulan ang siyang tinatangkilik ng batas.

"Matapos ang paliwanag na iyan, mamamalas na si Ordanoso ay hindi regular na empleado, sapagkat isang taon pa lamang siyang naglilingkod sa bahay-kalakal ng Oceanic commercial, Inc. Kung gayon, hindi kailangan ang written clearance upang siya ay matanggal ng pangasiwaan. Hindi nalalabag sa batas ang gayong pagtitiwalag sa kanya nang walang written clearance."cralaw virtua1aw library

The petitioner takes exception to the voluntary arbitrator’s conclusions on the interpretation to be given Section 3 of Implementing Instruction No. 1 —



"Pag-ukulan naman natin ng pansin ang isa pang matwid ng manananggol ng nag-uusig. Ayon raw sa Seksiyon 1(d) ng Alituntunin, kailangn rin ng ‘clearance’ lahat ng mga pagtanggal ng manggagawa na hindi nasasaklaw ng Seksiyon 3 nito. Ang Seksiyon 3 naman ay nililista ang mga pangyayari na kailangan lamang magharap ng ulat ang kompanya at hindi ‘clearance’. Isa na rito ay ang pagtiwalag ng empleado na kulang ng isang taon ang panunungkulan. Kung gayon raw, mapaghuhulo na kapag isang taon o higit nang isang taon ang paninilbihan, hindi nga ulat lamang ang kailangan kung hindi ‘clearance’ na.

"Ipinalabas na si Ordanoso ay nasasakop sa kalagayang iyan — na ang paglilingkod niya ay hindi kulang ng isang taon kaya’t hindi ulat lamang ang kailangan kung hindi ‘clearance’ na sapagkat isang taon o mahigit na siyang naglilingkod.

"Hindi naman tumpak ang pakahulugan ng kabilang panig sa batas na pinag-uukulan ng pansin. Malinaw at tiyak ang pangungusap ng Seksiyon 1 ng Alituntunin na ‘clearance’ ang kailangan kapag ang ititiwalag ay regular na empleyado na nanilbihan na ng isa man lamang taon. Kung paghambingin ang hulo lamang (implication) ng manananggol ng nag-uusig at ang tiyak na salita ng batas na ‘regular na empleado,’ ang lalong matimbang ay ang tiyak at tahas na pananalita. Hindi kailangan ng ‘clearance’ sa pagtanggal ng kahi’t sino na lamang na empleado na nakapaglingkod nang higit sa isang taon. Kailangang siya ay ‘regular na empleado’, lalu’t lalo na kapag ang empleado ay pangsamantala lamang o dili kaya’y ‘probationary.’ Siya ay dagling sinusubok pa lamang kaya’t kung sa panahon ng pagsusubok ay mapatunayang hindi sila mahusay, maaari silang tanggalin kaagad nang walang ‘clearance’ kapag humantong na sa katapusan ng napagkasunduang panahon. Ganyan na nga mismo ang ginawa ng bahay-kalakal na Oceanic Bic Manufacturing nang humantong na ang katapusan ng pangalawang anim na buwan at hindi sila nasiyahan sa paglilingkod ni Ordanoso." (Emphasis supplied).

In ascertaining the mandatory nature and the ambit of the clearance requirements before termination of employees may be effected, we start with the statutory provision. found in Section 11 of Presidential Decree No. 21 which provides:jgc:chanrobles.com.ph

"No employers may shut down his establishment or dismiss or terminate the services of regular employees with at least one year of service without the written clearance of the Secretary of Labor."cralaw virtua1aw library

The pertinent provisions of the Implementing Instructions No. 1 are as follows:jgc:chanrobles.com.ph

"SECTION 1. When Clearance Required. — Every employer shall secure a written prior clearance from the Secretary of Labor for any of the following cases irrespective of whether the employer complies with the requirements of existing laws on the service of notice terminating the services of an employee and the payment of severance pay:jgc:chanrobles.com.ph

"(a) All dismissals, with or without just cause, of regular employees with at least one (1) year of service;



"(d) Any termination of employment, suspension or lay-off not otherwise covered by Section 3 of these instructions.



"SECTION 3. When Reports Required. — Every employer shall submit a report in the form and manner prescribed by this issuance on the following termination of employment, suspension, lay-off or shutdown which may be effected by the employer without the prior clearance of the Secretary of Labor.



"(b) All dismissals, suspensions, or lay-offs of employees with less than one (1) year of service;" (Emphasis supplied).

Under the definition in Section 1 of the Implementing Instructions, a regular employee is one with an aggregate service of at least twelve months for the last two consecutive years prior to the proposed termination. Ordanoso was not a regular employee but a probationary employee when his services were terminated. It appears clear from the law that he was not covered by the requirement of a written prior clearance from the Secretary of Labor. Neither was he covered by Section 3 of the implementing rules which requires a report, not a prior clearance, whenever an employee with less than one year of service is dismissed, suspended, or laid-off, Ordanoso had slightly more than one year of service.

There is a hiatus or gap in the clearance and reporting requirements provided by the administrative regulations. As a general rule, such a gap should be resolved in favor of the dismissed worker. For an employee who has served one year and one day not to have the minimal protection of at least a report on the cause of his dismissal while those who have served less than a year are entitled to such a report also appears incongruous. In this particular case, however, the poor job performance of Ordanoso is documented. The hearings before the respondent arbitrator establish that the respondent employer did not act arbitrarily or even wrongly in declaring Ordanoso’s work performance as below the required ratings. During his first six months as a temporary employee when he should have exerted extra efforts to prove his capability for permanent employment, he was at the bottom or barely passing ratings of the required performance. He had to be placed on another six months’ trial period as a probationary worker. During this second period, he dearly failed to make the grade. Ordanoso was given sufficient warnings each time that his job performance was unsatisfactory. There is no issue of due process violations.

The petitioners concentrated on the failure of the employer to get a prior clearance from the Secretary of Labor and did not discuss the significance of the reporting requirements at all. Under the facts of this case and the applicable law, such a prior clearance was not necessary. It would also be most unfair to the employer to compel it to keep a below average worker simply because ambiguity in administrative requirements for clearances or reports depending on the length of service and employment status of a worker results in its not being instructed clearly to either report a dismissal already effected or seek prior clearance before the dismissal.

Considering the foregoing, we affirm the findings of the respondent voluntary arbitrator.

WHEREFORE, the instant petition is DISMISSED for lack of merit. The Kapasiyahan of the voluntary arbitrator is AFFIRMED.

SO ORDERED.

Relova and De la Fuente, JJ., concur.

Melencio-Herrera, J., is on official leave.

Plana, J., concurs in the result.



TEEHANKEE, J., concurring:chanrob1es virtual 1aw library

I concur on the ground that petitioner Pablito Ordanoso was not a regular employee but a probationary employee and there was manifestly valid cause for his dismissal or separation as such. He had been given sufficient warnings about his unsatisfactory job performance and therefore his dismissal at the end of the second six months trial period was for just cause in accordance with the terms of his probationary employment.

On the question, however, of whether his dismissal falls under section 3 of the Implementing Instructions quoted in the main opinion, whereby the employer is required to submit a report of his dismissal which may be affected without prior clearance, it is my view that the gap or hiatus in the clearance and reporting requirements should be resolved in his favor and those similarly circumstanced. In other words, the fact that he and other such probationary workers may have slightly more than one year of service would not mean that the employer would not have to file the corresponding report of their dismissal. As is aptly stated in the main opinion, "for an employee who has served one year and one day not to have the minimal protection of at least a report on the cause of his dismissal while those who have served less than a year are entitled to such a report (also) appears incongruous." The employer’s failure to file such report would not, however, make his dismissal for just cause illegal in view of the vagueness or ambiguity of the Administrative Instructions. But the employer who fails to file such report may be subjected to such administrative penalties or sanctions as may be duly provided.

1. CIVIL LAW; OBLIGATIONS AND CONTRACTS; VOID CONTRACTS; CONTRACTS WHERE THE OBJECTS OF EXCHANGE CANNOT BE ASCERTAINED. — It is evident from the deed of exchange that the intention of the parties relative to the lots, which are the objects of exchange, cannot be definitely ascertained. We hold that this circumstance renders the exchange void or inexistent (Art. 1378, 2nd par. and Art. 1409 [6], Civil Code).

2. ID.; PRESCRIPTION; ACTION TO DECLARE THE INEXISTENCE OF A CONTRACT DOES NOT PRESCRIBE. — The instant rescissory action may be treated as an action to declare void the deed of exchange. The action to declare the inexistence of a contract does not prescribe (Art. 1420, Civil Code).

3. ID.; OBLIGATIONS AND CONTRACTS; IMPOSSIBILITY OF PERFORMANCE OF OBLIGATION; EXTRAJUDICIAL RESCISSION, REMEDY. — The properties covered by the deed should have been specified and described. A perusal of the deed gives the impression that it involves many properties. In reality, it refers only to 8,124 square meters of land, which the Armadas would inherit from their uncle in General Santos City, and to 9,000 square meters representing the proindiviso share of Mrs. Marin in her parents’ estate. As we have seen, Mrs. Marin rendered impossible the performance of her obligation under the deed. Because of that impossibility, the Armadas could rescind extrajudicially the deed of exchange (Art. 1191, Civil Code; 4 Tolentino, Civil Code, 1973 Ed., pp. 171-172). If Mrs. Marin should sue the Armadas, her action would be barred under the rule of exceptio non adimpleti contractus (plaintiff is not entitled to sue because he has not performed his part of the agreement).

This case is about the rescission of a deed of exchange. In a 1963 document, Aquilina P. Marin assigned to the brothers Manuel P. Armada and Ariston P. Armada her hereditary share in the testate estate of her deceased mother, Monica Pacificar Vda. de Provido, situated in Janiuay, Iloilo in exchange for the land of the Armadas located in Cotabato covered by TCT No. 7252 and other properties in that province.

The exchange would be rescindible when it is definitely ascertained that the parties have respectively no right to the properties sought to be exchanged. The exchange did not mean that the parties were definitely entitled to the properties being exchanged but it was executed "in anticipation of a declaration of said right." The deed of exchange reads as follows:jgc:chanrobles.com.ph

"DEED OF EXCHANGE WITH QUITCLAIM

KNOW ALL MEN BY THESE PRESENTS:chanrob1es virtual 1aw library

This DEED OF EXCHANGE WITH QUITCLAIM, made and entered into by and between:chanrob1es virtual 1aw library

AQUILINA P. MARIN, of legal age, Filipino, married, to Antonio S. Marin, with residence and postal address at Bo. 8, Marbel, Koronadal, Province of Cotabato, hereinafter designated as MARIN;

— and —

MANUEL P. ARMADA, Filipino, of legal age, single, with residence and postal address at the Municipality of Janiuay, Province of Iloilo, Philippines, for him and in behalf of his brother, ARISTON P. ARMADA, likewise Filipino, of legal age, single, with residence and postal address at Stockton, California, U.S.A., hereinafter designated as the ARMADAS;

WITNESSETH:chanrob1es virtual 1aw library

WHEREAS, AQUILINA P. MARIN, is one of the legitimate children and compulsory heirs of the deceased MONICA PACIFICAR VDA DE PROVIDO, who died testate in the Municipality of Janiuay, Province of Iloilo, Philippines, on June 3, 1960;

WHEREAS, AQUILINA P. MARIN was named as an heir in that certain LAST WILL AND TESTAMENT executed by the said MONICA PACIFICAR VDA DE PROVIDO, on October 20, 1959, and duly acknowledged on the same date, before Sr. MANUEL B. LAURO, Notary Public for and in the Province of Iloilo, as per Doc. No. 262, Page No. 95, Book No. I, Series of 1959, of his Notarial Register, a photostatic copy of which is hereto attached and made an integral part of this AGREEMENT as Annex A;

WHEREAS, it is specifically provided in the attached LAST WILL AND TESTAMENT OF MONICA PACIFICAR VDA DE PROVIDO that AQUILINA P. MARIN will share equally with her co-heirs the estate of the decedent consisting of personal properties and registered and unregistered lands situated in the Municipality of Janiuay, Province of Iloilo, Philippines;

WHEREAS, the ARMADAS desire to acquire all the rights, interests, titles and participations that AQUILINA P. MARIN may have over the real and personal properties of MONICA PACIFICAR VDA DE PROVIDO aforementioned because of the proximity of the said properties to them, being residents of Janiuay, Iloilo, while AQUILINA P. MARIN is presently residing in Cotabato, Philippines;

WHEREAS, AQUILINA P. MARIN does by these presents hereby WAIVE and QUITCLAIM all her rights, interests, titles and participations in all the real and personal properties of her deceased mother, MONICA PACIFICAR VDA DE PROVIDO, in favor of the ARMADAS, in exchange for whatever rights, interests, titles and participations the latter may have or could have in any real or personal properties situated at Cotabato, Philippines;

NOW, THEREFORE, for and in consideration of the foregoing premises, and for such other good and valuable considerations, the parties hereto hereby covenant and stipulate as follows, to wit:chanrob1es virtual 1aw library

1. That AQUILINA P. MARIN hereby transfers, assigns, cedes, conveys and quitclaims unto the said ARMADAS, their heirs, successors and assigns, all her rights, titles, interests and participations in any and all real and personal properties representing her legitimate share in the estate of her deceased mother, the late MONICA PACIFICAR VDA DE PROVIDO, situated at the Municipality of Janiuay, Iloilo;

2. That the ARMADAS by virtue of these presents hereby likewise cede, transfer, assign, convey and quitclaim in favor of the said AQUILINA P. MARIN, by way of exchange, all their rights, interests, titles and participations, that they may have or could have in any and all real and personal properties situated at the Province of Cotabato, Philippines, more particularly in that parcel of land formerly covered by TCT No. V-2354 and now covered by TCT No. 7252 of the Cotabato Registry;

3. That the ARMADAS know for a fact that the properties being assigned and quitclaimed in their favor by AQUILINA P. MARIN have long been and continue to be productive and are more valuable than the properties which they are exchanging under this document;

4. That both parties hereto hereby acknowledge that the exchange contained herein operates to their individual and mutual benefit and advantage, for the reason that the property being ceded, transferred, conveyed and quitclaimed by one party to the other is situated in the place where either is a resident resulting in better administration of the aforementioned properties;

5. That both parties furthermore acknowledge that the exchange contemplated herein is made in perfect good faith, and not attended by fraud, mistake, misrepresentation or the like and that they have no further claim for additional price or consideration against each other, both declaring that the properties received by way of exchange under this document is adequate consideration for the properties quitclaimed:chanrob1es virtual 1aw library

6. That the parties hereto intend this AGREEMENT to be absolute and irrevocable, except only when it is eventually ascertained and finally determined that they have respectively no right, interest, title or participation in any property, real or personal, which they have assigned or quitclaimed in favor of each other, and in the event of mutual restitution by reason of the above eventuality, the parties hereto are not liable for any fruits or benefits which they may have received from the aforementioned properties during the existence and efficacy of this AGREEMENT and that no damage could be claimed by one against the other;

7. That it is specifically understood and agreed that the execution of this document by the parties hereto shall in no way be construed as an acknowledgment on his or her part that the other is or are entitled in the properties heretofore quitclaimed but only in anticipation of a declaration of said right;

8. That the parties hereto shall take possession of and make use of the properties subject of this DEED OF EXCHANGE AND QUITCLAIM upon the signing of the same;

9. That the parties hereto hereby agree that the lawful ownership and possession of each shall be protected by the other against any and all claims of any person or persons;

10. That to make this AGREEMENT valid, binding and effective, both parties hereby authorize each other the registration of this document with the Register of Deeds of Iloilo, and the ARMADAS likewise grant a similar authority to MARIN.

IN WITNESS WHEREOF, the parties hereto have affirmed their hands on this 13th day of June, 1963.

(SGD.) AQUILINA P. MARIN (SGD.) MANUEL P. ARMADA

(For himself and in behalf

of his brother Ariston P. Armada)

With my marital consent:chanrob1es virtual 1aw library

(SGD.) ANTONIO S. MARIN"

(Witness and Notarial Acknowledgment are omitted)

As background, it should be stated that the Armadas and Mrs. Marin are first cousins. The Armadas in 1963 expected to inherit some lots in General Santos City from their uncle, Proceso Pacificar, who died in 1954. Mrs. Marin, who resided in Koronadal, Cotabato, had hereditary rights in the estates of her parents, the deceased spouses, Francisco Provido and Monica Pacificar, of Janiuay, Iloilo, who died in 1938 and 1960, respectively. Manuel P. Armada resided in Janiuay.

In 1963, when the deed of exchange was executed, the estate of Proceso Pacificar, in which the Armadas expected to inherit a part, had been adjudicated to Soledad Provido-Elevencio-nado, a sister of Mrs. Marin and a first cousin also of the Armadas. Soledad claimed to be the sole heir of Proceso. So, the Armadas and the other heirs had to sue Soledad.

The protracted litigation ended in a compromise in 1976 when the Armadas were awarded Lots 906-A-2 and 906-A-3, located in Barrio Lagao, General Santos City with a total area of 8,124 square meters. Mrs. Marin never possessed these two lots. They were supposed to be exchange for her proindiviso share in her parents’ estate in Janiuay.

Did Mrs. Marin inherit actually anything from her parents? The answer is nothing. She chose to forget the deed. Her conduct showed that she considered herself not bound by it. Five years after that deed, or on November 14, 1968, she agreed to convey to her sister, Aurora Provido-Collado, her interest in two lots in Janiuay in payment of her obligation amounting to P1,700.

Then, in the extrajudicial partition of her parents’ estate on June 25, 1977 (when the instant case for rescission was already pending), her share, with a total area of 9,010 square meters, was formally adjudicated to Aurora. It was stated therein that Mrs. Marin "has waived, renounced and quitclaimed her share" in favor of Aurora. As already stated, that share was supposed to be exchanged for the two lots in General Santos City which the Armadas received in 1976 after a pestiferous litigation.

The Armadas filed the instant rescissory action against Mrs. Marin on December 7, 1976. They overlooked the fact that Ariston P. Armada was not bound at all by the deed since Manuel, who signed the deed for him, had no authority to do so. Manuel was not the attorney-in-fact of Ariston (See Art. 1403 [1], Civil Code).

There was no trial. The case was submitted on the pleadings. The sole issue resolved by the trial court was prescription. It held that the Armadas’ action had not prescribed because their right to rescind accrued only in 1976 when they discovered that Mrs. Marin could not perform her obligation under the deed since she had assigned her hereditary rights to her sister.

Judge Midpantao L. Adil rescinded the deed of exchange, ordered restitution of whatever might have been received by Mrs. Marin, released the Armadas from their obligation under said deed and ordered Mrs. Marin to pay the Armadas P10,000 as moral and exemplary damages and P3,000 as attorney’s fees. Mrs. Marin appealed to this Court on legal issues (L-49018).

Judge Adil issued an order of execution pending appeal which Mrs. Marin assailed by certiorari in this Court. The enforcement of the execution was restrained by this Court (L-47986). The two related cases have been consolidated.

It is evident from the deed of exchange that the intention of the parties relative to the lots, which are the objects of the exchange, cannot be definitely ascertained. We hold that this circumstance renders the exchange void or inexistent (Art. 1378, 2nd par. and Art. 1409 [6], Civil Code).

Thus, as already noted, it is provided in paragraph 7 that the deed should not be construed as an acknowledgment by the Armadas and Mrs. Marin that they are entitled to the properties involved therein and that it was executed "in anticipation of a declaration of" their rights to the properties.

Then, it is stipulated in paragraph 8 that the parties should take possession and make use of the properties involved in the deed.

The two provisions are irreconcilable because paragraph 7 contemplates that the properties are still to be awarded or adjudicated to the parties whereas paragraph 8 envisages a situation where the parties have already control and possession thereof.

It should be noted that in paragraph 7 of Mrs. Marin’s answer with affirmative defense she avers therein that her 1968 agreement with her sister means that she would convey her properties to the latter (Aurora) when the Armadas should be "adjudged to be without rights or interests to any properties in General Santos City" (p. 47, Rollo of L-49018). Such a qualifications is not found in her agreement with her sister.

The instant rescissory action may be treated as an action to declare void the deed of exchange. The action to declare the inexistence of a contract does not prescribe (Art. 1410, Civil Code).

The properties covered by the deed should have been specified and described. A perusal of the deed gives the impression that it involves many properties. In reality, it refers only to 8,124 square meters of land, which the Armadas would inherit from their uncle in General Santos City, and to the 9,000 square meters representing the proindiviso share of Mrs. Marin in her parents’ estate. As we have seen, Mrs. Marin rendered impossible the performance of her obligation under the deed.

Because of that impossibility, the Armadas could rescind extrajudicially the deed of exchange (Art. 1191 Civil Code; 4 Tolentino, Civil Code, 1973 Ed., pp. 171-172). If Mrs. Marin should sue the Armadas, her action would be barred under the rule of exceptio non adimpleti contractus (plaintiff is not entitled to sue because he has not performed his part of the agreement).

As no evidence was presented in this case, we cannot sustain the award of P10,000 as moral and exemplary damages and P3,000 as attorney’s fees.

WHEREFORE, the trial court’s judgment and the order of execution pending appeal are set aside. The deed of exchange is hereby declared void and inexistent. The annotation thereof on TCT Nos. 10833 and 10834 should be cancelled. The Armadas’ claim for damages and attorney’s fees is denied. Aquilina Provido-Marin’s counterclaim is dismissed. No costs.

SO ORDERED.

Makasiar, Concepcion, Jr., Guerrero, Abad Santos, Escolin and Cuevas, JJ., concur.

1. CIVIL LAW; OBLIGATIONS AND CONTRACTS; LEASE; RIGHT OF LESSOR, TO INCREASE RENTALS UPON TERMINATION OF LEASE CONTRACT; RIGHT MUST SATISFY TEST OF REASONABLENESS. — The right of the lessor to increase the rental payment of the premises occupied by the lessee upon termination of the lease period is recognized in law and jurisprudence, although such right is not absolute since the increase must satisfy the test of reasonableness.

2. ID.; ID.; ID.; ID.; ID.; APPRAISAL REPORT OF LICENSED REAL ESTATE. APPRAISER IN CASE AT BAR ESTABLISHED REASONABLENESS OF INCREASE FROM P750.00 TO P2,000.00. — The appraisal report, Exhibit "112", presented by witness Francisco R. Tantoco, Sr., a licensed real estate appraiser who was presented by the lessees themselves, is, to Us, crucial in determining the reasonableness of the increased rentals. As correctly analyzed by the City Court and observed that the appraiser erroneously used 7,848 sq. meters while the land is 10,442 sq. meters; that while his report appraised the fair market value at P230.00 per sq. meter, he admitted that the fair market value could be doubled or P460.00 per sq. meter, and that while Tantoco admitted that each storey floor of each apartment has an area of 80 sq. meters, however, in computing the current construction costs of P1,000.00 per sq. meter, he used only 80 sq. meters and did not multiply 80 sq. m. by 3 storeys notwithstanding that each apartment has 3 storeys; and moreover, using Tantoco’s own formula under the cost approach method whereby 75% of the current construction cost is deducted by way of depreciation for the 30 years age of the buildings, the present depreciated value of one building portion of each apartment would be P60,000.00 arrived at by multiplying P1,000.00 by 25% by 80 sq. m. by 3, so that the P 150,000.00 for the land plus the P60,000.00 for the building multiplied by the annual rate of return of 12% set by Tantoco, divided by the 12 months of the year would amount to P2,000.00 as the reasonable monthly rate per apartment. We agree with the trial court that the lessees’ own witness has established instead that the P2,000.00 monthly rate under Exhibit "A" is reasonable. And We affirm the Court’s observation that "more so by the P1,000.00 discount given to each tenant who pays on time within the first three days of the corresponding month, because thereby a timely paid rental would amount to only one-half (1/2) of the reasonable monthly rental."cralaw virtua1aw library

3. ID.; ID.; ID.; ID.; ID.; RELIANCE ON BATAS PAMBANSA BILANG 25 AS GUIDELINE IN DETERMINING REASONABLENESS OF RENTAL INCREASE HELD ARBITRARILY IN CASE AT BAR. — We find grave abuse of discretion in his conclusion that the increased rentals of P2,000. 00 a month was unreasonable, a conclusion that is not only without factual basis but also contrary to the evidence on record. His reliance on Batas Pambansa Bilang 25 although as a benchmark or as a guideline for aiding courts in determining the reasonableness of rental increases is arbitrary, whimsical and capricious. And by ignoring the correct observation of the trial court on the appraisal report of the real estate appraiser specifically referring to the actual land area and the number of storeys or levels in each apartment unit, the assailed judgment has been shown clearly to have been based on a misapprehension of facts.

4. CIVIL LAW; LIQUIDATED DAMAGES; AWARD THEREOF NOT JUSTIFIED IN ABSENCE OF EXPRESS AGREEMENT. — We find no justification for the award of liquidated damages in the sum of P4,000.00 to be paid by each of the lessees for there is no clear showing that the lessees agreed expressly to the payment thereof under the terms and conditions set forth in the letter-contract, Exh. "A."

5. REMEDIAL LAW; SPECIAL CIVIL ACTIONS; CONTEMPT; INDIRECT CONTEMPT; NO DISOBEDIENCE TO FINAL AND EXECUTORY EJECTMENT ORDER WHERE PARTY DID NOT FILE MOTION FOR IMMEDIATE EXECUTION OF DECISION PENDING APPEAL. — Considering the motion for contempt filed by petitioner against respondent Judge for deliberate disobedience to the final and executory ejectment order issued by this Court and to the interim Rules of Court, citing the specific grounds supporting the same, and the comment of the respondent Judge, We find said motion for contempt without merit as it is clear that petitioner did not file any motion for the immediate execution of the decision of the Pasay City Court in cases Nos. 11967, 11968, 11969, 11971, 11973, 11975, 11976, 11977, 11978 and 11979 immediately when this Court rendered its decision of May 22, 1982. Petitioner filed its motion for writs of execution only on January 29, 1983, or after the respondent court had already rendered its decision on December 21, 1982 reversing the decision of the Pasay City Court and dismissing the complaint in the Civil Cases enumerated above. With the reversal of the City Court’s decision, there is nothing more to execute.

6. ID.; ID.; CERTIORARI; NOT A SUBSTITUTE FOR APPEAL. — The first order of respondent Judge dated November 15, 1982 dismissing private respondent’s petition for certiorari on the grounds of 1. failure to prosecute; and 2. private respondent resorted to the wrong legal remedy because she should have appealed the order denying the motion to set aside the order of default instead of filing a petition for certiorari which is in effect an appeal from the judgment by default, is correct, the same being in full conformity with the law and jurisprudence as the order itself cites. But by setting it aside in a subsequent order issued without any legal or factual basis therefor, respondent Judge acted arbitrarily, capriciously and frivolously, which is a clear and grave abuse of discretion amounting to excess or lack of jurisdiction. The second order which also reinstated the petition for certiorari must be set aside. The records clearly disclose that private respondent Dominga Mapa has lost her right to appeal since she cannot be allowed to resort to certiorari as a substitute therefor. The judgment rendered by the City Court of Pasay City in Civil Case No. 11964 has become final and executory except that which orders her to pay P12,000.00 in the concept of liquidated damages, which in conformity with Our judgment herein is set aside.

The original petition for certiorari and prohibition with prayer for preliminary injunction docketed as G.R. No. 48376-85 entitled "Balagtas Realty Corporation, Petitioner, versus Hon. Manuel V. Romillo, Jr. as Judge of the Court of First Instance of Rizal in Pasay City, Burt Raymond, Yu Chun Hian, Edward Finlan, Jack Lerner, Cornelius Breed, Marsha Baecher, Lourdes Ang, Victoria Teves, and Josephine Ting, respondents" was decided by this Court in the decision promulgated May 22, 1982 (See 114 SCRA 28) with the following dispositive portion:jgc:chanrobles.com.ph

"WHEREFORE, judgment is hereby rendered setting aside respondent Judge’s order dated March 30, 1978 in Civil Cases Nos. 5779-P to 5788-P and ordering immediate execution of the judgment of the Pasay City Court in Cases Nos. 11967, 11968, 11971, 11973, 11975, 11976, 11977, 11978 and 11979 without prejudice to the appeals taking their due courses.

Costs against respondents.

SO ORDERED."cralaw virtua1aw library

The above-cited cases for ejectment having been appealed to the Court of First Instance of Rizal, Pasay City, Branch XXX-VII, the Presiding Judge thereof, respondent herein, Judge Manuel V. Romillo, Jr., on December 21, 1982 reversed the decision of the City Court of Pasay City, Branch IV, ruling thus:jgc:chanrobles.com.ph

"WHEREFORE, in view of the foregoing, the Court hereby sets aside the decision of the lower court dated January 25, 1977 and renders judgment as follows:chanrob1es virtual 1aw library

(a) Dismissing the Complaints in Civil Cases Nos. 11967, 11968, 11971, 11973, 11975, 11976, 11977, 11978 and 11979 in toto as well as the counterclaims of defendants-appellants;

(b) Ordering plaintiff-appellee to credit any sum in excess of the rentals originally consigned by defendants-appellants with the City Court to future rentals; and

(c) Releasing the supersedeas bond of the defendants-appellants without pronouncement as to costs.

IT IS SO ORDERED."cralaw virtua1aw library

The reversal of the decision promulgated by the lower court, which We had previously ordered executed pending appeal, rendered Our decision of May 22, 1982 moot and academic. Petitioner moved for reconsideration of the decision of respondent Judge. Petitioner likewise moved for the immediate issuance of writs of ejectment pursuant to the judgment of this Court. Respondent Judge denied both motions in his Order of February 11, 1983, holding that, "the Court believes it improper to order the execution of the judgment appealed from considering that it has already rendered a decision on the appeal reversing the judgment now sought to be executed. The appeal had already been terminated by the rendition of the judgment by this Court, such that an execution pending appeal is now inappropriate and untimely. It should have been pursued by the then prevailing party (herein movant) during the pendency of the appeal."cralaw virtua1aw library

Petitioner, claiming that respondent Judge deliberately disobeyed this Court’s final and executory ejectment order and the Interim Rules of Court, filed a Motion before Us dated February 16, 1983 praying that respondent Judge be ordered not only to forthwith issue the writs of ejectment but also to show cause why he should not be held in contempt of this Court. We directed respondent Judge to comment on said motion, to which he complied.

Thereafter, petitioner filed a supplemental petition for review, praying that the decision of respondent Judge be reversed and that the judgment of the Trial City Court of Pasay City be affirmed. Petitioner assigns the following errors:chanrob1es virtual 1aw library

I. Respondent Judge erred in relying in his decision on private respondents’ exhibits which were neither offered, much less admitted in evidence in the trial court nor otherwise legally before him as a judge of the appellate court.

II. Respondent Judge erred in holding that Exhibit "A" did not constitute the agreement between the parties, in plain disregard and contravention of Art. 1320 and 1321 of the Civil Code.

III. Respondent Judge erred in holding that the demand letters to vacate (Exhs. "E") served on private respondents were invalid.

IV. Respondent Judge erred in holding that no liquidated damages are due to petitioner.

V. Respondent Judge erred in not holding that even if Exh. "A" be not considered the agreement between the parties, private respondent should nonetheless be ejected from the leased premises.

VI. Respondent Judge erred in holding that petitioner has no absolute right to increase rentals.

VII. Respondent Judge erred in holding that the increase in rentals fixed by petitioner was unreasonable.

VIII. Respondent Judge erred in holding that the tenders of payment and consignation effected by private respondents were valid.

IX. Respondent Judge erred in reversing the decision of the trial court.

The principal issue raised in the supplemental petition is whether the increase in the rental payments demanded by the petitioner as the new owner of the apartments leased and occupied by private respondents is reasonable or not. According to the decision of the trial court, the City Court of Pasay City, "it is clear that the rental rate was P750.00 commencing on June 1, 1975. That P750.00 was in fact the monthly rental as of June 1, 1975 until the plaintiff (petitioner herein) increased it to P2,000.00 effective on May 1, 1976 is corroborated not only by twenty (20) other tenants who paid P750.00 from June 1, 1975 to April 30, 1976 but also by the defendant Yu Chun Hian who has no arrears for rentals up to April 30, 1976 and the defendants Raymond and Lerner who updated their accounts at P750.00 monthly from June 1, 1975, as reflected in the schedule of arrears, Exh. "G." Otherwise stated, because the defendants’ evidence was joint and cumulative, the fact that some of them paid P750.00 from June 1, 1975 has established that the rental rates from June 1, 1975 to April 30, 1976 was indeed P750.00."cralaw virtua1aw library

As to the rentals beginning May 1, 1976, the City Court held that the lessees became bound by the terms and conditions of Exhibit "A", the letter-contract dated April 21, 1976, which became the lease agreement between each of the lessees and the lessor when each of the lessees elected to accept by continuing occupancy of their respective premises beginning May 1, 1976. In its decision, the City Court said:jgc:chanrobles.com.ph

"It thus appear significant that the material thrust of defendants’ testimonies tend to corroborate plaintiff’s evidence that as of April 1976 all the original lease periods in the contracts of the defendants with the predecessor of the plaintiff had already expired so that the defendants were on a month-to-month lease basis, in view of which the plaintiff by its identical letters to each of the defendants, Exhibits "A" (common to all cases) terminated their respective month-to-month lease ending April 30, 1976 and in the same letter offered to each of the defendants a new lease commencing on May 1, 1976 at an increased monthly rental of P2,000.00 payable within the first three days of each month, with a discount of P1,000.00 when each monthly rental is paid on time within the first three days of each month. Exhibits "A" (common in all these cases) gave to each defendant the free choice to accept or to reject the offer, namely: non-acceptance by vacating their respective premises on or before April 30, 1976, while acceptance was by continued occupancy of their respective premises commencing on May 1, 1976. Each of the defendants notwithstanding receipt of Exhibit "A", continued occupancy of their respective premises on May 1, 1976 so that thereby they respectively accepted Exhibits "A" as the lease agreement to govern their relationship, the plaintiff as the lessor and each defendant as the lessee, commencing on May 1, 1976."cralaw virtua1aw library

The defunct Court of First Instance of Rizal, Branch XXX-VII, Pasay City, reversing the above finding of the court a quo ruled that said letter-contract, Exhibit "A", dated April 21, 1976, did not constitute an agreement between the parties because" (t)he preponderance of the evidence adduced show that there was no meeting of the minds in respect to the conditions contained therein, or better yet, no acceptance of the offer made therein by plaintiff-appellee. As a matter of fact, the same was specifically rejected by defendants-appellants in their letter-reply to plaintiff-appellee dated April 30, 1976. We agree with defendants-appellants that as there was nothing definite as yet between the parties or no agreement on all material points, there was no meeting of the offer and the acceptance within the intendment of Article 1319 of the Civil Code, as well put by an eminent authority."cralaw virtua1aw library

Be that as it may, the right of the lessor to increase the rental payment of the premises occupied by the lessee upon termination of the lease period is recognized in law and jurisprudence, although such right is not absolute since the increase must satisfy the test of reasonableness. We have these legal precedents:chanrob1es virtual 1aw library

In Pilar G. Vda. de Kraut v. Manuel Lontoc, 7 SCRA 281, a lease on a month-to-month basis may be terminated at the end of any month, and shall be terminated upon the lessee’s refusal to pay the increased monthly rental demanded by the lessor, provided the same is not exorbitant.

In Singson Encarnacion v. Baldomar, 77 Phil. 470, the continuance and fulfillment of the contract of lease cannot be made to depend solely and exclusively upon the free and uncontrolled choice of the lessees between continuing paying the rentals or not, completely depriving the owner of all say in the matter. For if this were allowed, so long as defendants elected to continue the lease by continuing the payment of the rentals, the owner would never be able to discontinue it; conversely, although the owner should desire the lease to continue, the lessees could effectively thwart his purpose if they should prefer to terminate the contract by the simple expedient of stopping payment of the rentals. This, of course, is prohibited by Article 1256 of the Civil Code."cralaw virtua1aw library

"The rule is settled that the owner of the land leased has the right not only to terminate the lease at the expiration of the term, but also to demand a new rate of rent. The tenant or lessee has the option either to accept the new rent or vacate the premises. (Iturralde v. Alfonso, 7 Phil. 576; Iturralde v. Evangelista, 7 Phil. 688; Iturralde v. Magcauas, 9 Phil. 599; Cortez v. Ramos, 46 Phil. 189). As plaintiffs, after the termination of their lease, refused either to pay the new rent or to vacate the lots after the termination of their lease, they have evidently become deforciants, and can be ousted judicially without the need of a demand. (Co Tiamco v. Diaz, 75 Phil. 672; Art. 1669, new Civil Code) cited in Bulahan, Et. Al. v. Tuazon, Et Al., 109 Phil. 254.).

"Only where the rental demanded is clearly exorbitant or unreasonable would the courts intervene as a matter of fairness and equity. The burden of proof to show that the rental demanded is exorbitant and unreasonable rested upon the lessee, and since the lessee presented no evidence in substantiation of his claim other than the original cost to the lessor of the property, he has manifestly failed to discharge its burden." (Vda. de Roxas v. CA, 63 SCRA 302).

In the case at bar, petitioner Balagtas Realty Corporation as the new owner of the residential apartments located at Balagtas St., Pasay City and successor-in-interest of the previous owner, the Perez-Rubio Trust, may terminate, as it did, the old lease agreement under the previous owner and impose, on a month-to-month basis an increased rental. According to the letter-contract, Exhibit "A", dated April 21, 1976, the respective month-to-month leases ending April 30, 1976 were terminated and in the same letter offered to each of the lessees a new lease commencing on May 1, 1976 at an increased monthly rental of P2,000.00 payable to the lessor, petitioner Balagtas Realty Corp., with a discount of P1,000.00 if paid on time within the first three days of each month. It further gave to each lessee the free choice to accept or to reject the offer, namely: non-acceptance by vacating their respective premises on or before April 30, 1976, while acceptance was by continued occupancy of their respective premises on May 1, 1976.

Since the lessees rejected the increased rentals and insisted on the old rate, We must resolve the controversy on the question of the reasonableness of the rental increase.

The decision herein assailed holds that "after a careful review of the evidence presented, this Court finds, and so holds, that the increased rentals of P2,000.00 a month imposed by plaintiff-appellee does not appear reasonable" and respondent Judge supports his ruling, thus:jgc:chanrobles.com.ph

"For one, it amounts to an increase of more than 200% from the previously existing rental. It is not amiss to note that under Batas Pambansa Bilang 25, a lessor of residential units not exceeding P300.00 can increase his rentals once a year only by 10%. While this Court does not here state that a rental increase of 10% as mandated by the edict is squarely applicable or should have been observed by plaintiff-appellee in demanding its increased rental, it believes, however, that the rate of increase therein fixed can be used as a benchmark or as a guideline for aiding courts in determining the reasonableness of rental increases imposed by lessors. Based upon this consideration, it is plain that an increase of more than 200% is not only unreasonable but also unconscionable. Parenthetically, this conclusion becomes ineluctable if we consider the fact that the cited causes for such a gigantic increase have not been established. On the contrary, no proof was adduced by plaintiff-appellee to rebut the evidence submitted by defendants-appellants that certain obligations of plaintiff-appellee under the lease pertaining to security services and repairs have not been complied with. Not only that, plaintiff-appellee likewise did not refute the testimony of Mr. Francisco Tantoco, Sr. on the reasonable rental valuation of the property."cralaw virtua1aw library

On the other hand, the trial court upheld the reasonableness of the increase, citing the following considerations, to wit:jgc:chanrobles.com.ph

"In accordance with the ruling in Cortez v. Ramos, supra: ‘Whether or not the rent demanded by the owner is reasonable, is a question to be decided according to the evidence. The plaintiff introduced evidence that another person was willing to lease the same’ premises at the new rental rate, the plaintiff’s witness, its manager Atty. Alcantara, testified that twelve other tenants of the 32 apartments compound were paying the new rental rates under Exhibits "A", for which they were not impleaded in ejectment. This is strengthened by an additional eight of the original nineteen defendants who settled by paying the said new rate under Exhibits "A."

Maybe in accordance with the ruling in Cortez v. Ramos, supra, that plaintiff’s proof that others were paying the new rate is merely ‘prima facie proof that the increase of the rent is reasonable,’ and that the defendants’ testimonies to the contrary is ‘no ground’ to overcome said prima facie proof, while almost each of the defendants who testified stated that the new rental rate was unreasonable and that the reasonable rate should be only P750.00; they presented a licensed real estate appraiser in the person of Francisco P. Tantoco, Sr. under whose appraisal report Exhibit "112" the reasonable monthly rental rate is set at P770.00. This Court has observed that while Tantoco in Exhibit "112" set forth many methods of appraisal, the only one used to arrive at said P770.00 was the cost approach method. However, in cross-examination by the plaintiff’s counsel, the following bases of Tantoco’s cost approach method were established to be erroneous: while the land is 10,442 sq. m., Tantoco erroneously used only 7,848 sq. m. because he overlooked one sheet of the technical description annexes of his report Exhibit "112." In connection with the land while his report appraised the fair market value at P230.00 per sq. m. he admitted on cross-examination that the fair market value could be double. Therefore, 10,442 sq. m. at P460.00 per sq. m. divided by the 32 apartments of the compound would mean that the share of each apartment in the land was P150,000.00. Then, while Tantoco admitted that each storey floor of each apartment has an area of 80 sq. m., however, in computing the current construction cost of P1,000.00 per sq. m. he used only 80 sq. m. and did not multiple 80 sq. m. by three storeys notwithstanding that each apartment has three storeys. Using Tantoco’s own formula under the cost approach method whereby 75% of the current construction cost is deducted by way of depreciation for the thirty years age of the buildings, the present depreciated value of one building portion of each apartment would be P60,000.00, arrived at by multiplying P1,000.00 by 25% by 80 sq. m. by 3. The P150,000.00 for the land plus the P60,000.00 for the building multiplied by the annual rate of return of 12% set by Tantoco divided by the twelve months of the year would amount to P2,100.00 as the reasonable monthly rate per apartment. Thereby, the defendants’ evidence has instead established that the P2,000.00 monthly rate under Exhibits "A" is indeed reasonable. And more so by the P1,000.00 discount given to each tenant who pays on time within the first three days of the corresponding month, because thereby a timely paid rental would amount to only 1/2 of the reasonable monthly rental."cralaw virtua1aw library

We find for the petitioner.

The appraisal report, Exhibit "112", presented by witness Francisco R. Tantoco, Sr., a licensed real estate appraiser who was presented by the lessees themselves, is, to Us, crucial in determining the reasonableness of the increased rentals. As correctly analyzed by the City Court and observed that the appraiser erroneously used 7,848 sq. meters while the land is 10,442 sq. meters; that while his report appraised the fair market value at P230.00 per sq. meter, he admitted that the fair market value could be doubled or P460.00 per sq. meter; and that while Tantoco admitted that each storey floor of each apartment has an area of 80 sq. meters, however, in computing the current construction costs of P1,000.00 per sq. meter, he used only 80 sq. meters and did not multiply 80 sq. m. by 3 storeys notwithstanding that each apartment has 3 storeys; and moreover, using Tantoco’s own formula under the cost approach method whereby 75% of the current construction cost is deducted by way of depreciation for the 30 years age of the buildings, the present depreciated value of one building portion of each apartment would be P60,000.00 arrived at by multiplying P1,000.00 by 25% by 80 sq. m. by 3, so that the P150,000.00 for the land plus the P60,000.00 for the building multiplied by the annual rate of return of 12% set by Tantoco, divided by the 12 months of the year would amount to P2,000.00 as the reasonable monthly rate per apartment. We agree with the trial court that the lessees’ own witness has established instead that the P2,000.00 monthly rate under Exhibit "A" is reasonable, And We affirm the Court’s observation that "more so by the P1,000.00 discount given to each tenant who pays on time within the first three days of the corresponding month, because thereby a timely paid rental would amount to only one-half (1/2) of the reasonable monthly rental."cralaw virtua1aw library

Indeed, the fact that each apartment unit leased to the private respondents comprises three storeys or levels with an area of 80 sq. meters each or a total area of 240 sq. meters if leased at P600.00 a month as claimed by some lessees would render a rental of only P2.50 per sq. meter a month, P3.125 per sq. meter if leased at P750.00 a month, the rate claimed by other lessees, whereas if leased at P2,000.00 a month, the rental would render an amount of P8.33 per sq. meter a month as demanded by petitioner — has not been given the proper significance by respondent court.

In the business of renting or leasing apartments in which petitioner is engaged, being the owner of the row of some 32 apartment units located in Balagtas St., Pasay City, it is the usual and normal trade practice in fixing the reasonable rental to take into account the location of the apartment including the neighborhood, the area per floor or storey, the number of rooms, bedrooms, kitchen, closet, the facilities provided therefor, and other material factors as the description of the building, its type and construction, as well as the age of the building. While neither of the decision of the trial court nor of the Court of First Instance considered the above factors, We find in the records a brief description of the apartments in question, thus: "These apartments are concrete apartments of three-storey building there is a big space at the back, it’s a common playground, there is a garage . . ." (Memorandum of Private Respondents Raymond and Ang, Rollo, p. 171, quoting the testimony of the Building Administrator).

In fine, We hold that the respondent Judge erred in reversing the judgment of the trial court. We find grave abuse of discretion in his conclusion that the increased rentals of P2,000.00 a month was unreasonable, a conclusion that is not only without factual basis but also contrary to the evidence on record. His reliance on Batas Pambansa Bilang 25 although as a benchmark or as a guideline for aiding courts in determining: the reasonableness of rental increases is arbitrary, whimsical and capricious. And by ignoring the correct observation of the trial court on the appraisal report of the real estate appraiser specifically referring to the actual land area and the number of storeys or levels in each apartment unit, the assailed judgment has been shown clearly to have been based on a misapprehension of facts. Said judgment must, therefore, be set aside, and that of the trial court reinstated.

However, We find no justification for the award of liquidated damages in the sum of P4,000.00 to be paid by each of the lessees for there is no clear showing that the lessees agreed expressly to the payment thereof under the terms and conditions set forth in the letter-contract, Exh. "A."

As to the other alleged errors which are but ancillary or secondary to the principal issue herein already resolved, We deem it needless and unnecessary to resolve the same.

Considering the motion for contempt filed by petitioner against respondent Judge for deliberate disobedience to the final and executory ejectment order issued by this Court and to the interim Rules of Court, citing the specific grounds supporting the same, and the comment of the respondent Judge, We find said motion for contempt without merit as it is clear that petitioner did not file any motion for the immediate execution of the decision of the Pasay City Court in cases Nos. 11967, 11968, 11969, 11971, 11973, 11975, 11976, 11977, 11978, and 11979 immediately when this Court rendered its decision of May 22, 1982. Petitioner filed its motion for writs of execution only on January 29, 1983, or after the respondent court had already rendered its decision on December 21, 1982 reversing the decision of the Pasay City Court and dismissing the complaint in the Civil Cases enumerated above. With the reversal of the City Court’s decision, there is nothing more to execute.

Now to G.R. No. 63387 entitled "Balagtas Realty Corporation v. Hon. Manuel V. Romillo, Jr. and Dominga Mapa" which We ordered consolidated with the first petition, the former being for certiorari with preliminary injunction assailing the order of the same respondent judge which reinstated the petition for certiorari filed by private respondent Dominga Mapa after petitioner filed the contempt charge against respondent Judge for refusing to execute this Court’s aforecited decision.

In this second petition, petitioner originally filed an action for unlawful detainer against private respondent Dominga Mapa, who is similarly situated as the private respondents in G.R. Nos. L-48376-85. Unlike the private respondents in the latter case, she interposed the defense of ownership, alleging that the apartment unit she is occupying could have been her commission if the members of the Perez-Rubio family who are the stockholders of herein petitioner Balagtas Realty Corporation did not renege on their intention of selling the properties to one, Mr. Antonio Roxas Chua.

For her failure to appear in the hearing which was scheduled on May 26, 1976, herein private respondent Dominga Mapa was declared in default. Subsequently, the Pasay City Court rendered judgment by default ordering herein private respondent: 1. to vacate her apartment; 2. to pay rentals in arrears and current monthly rentals; and 3. to pay P12,000.00 liquidated damages.

Private respondent assailed the abovecited judgment through a petition for certiorari with preliminary injunction in the Regional Trial Court, Pasay City, presided by herein respondent Judge.

On November 15, 1982, respondent Judge motu propio dismissed the petition on the following grounds: 1. failure to prosecute; and 2. private respondent resorted to the wrong legal remedy because she should have appealed the order denying the motion to set aside the order of default instead of filing a petition for certiorari which is in effect an appeal from the judgment by default. The order of the respondent Judge which is fully supported by authorities, reads:jgc:chanrobles.com.ph

"This case was filed on August 19, 1976; up to this date petitioner has not even started presentation of her evidence. For the last three (3) years, i.e., since late 1979 to date, petitioner has not taken any steps whatsoever to prosecute the case, thereby indicating lack of interest, and warranting dismissal for failure to prosecute.

It may also be noted from the allegations of the basic Petition that there is no clear showing of either excess or lack of jurisdiction or grave abuse of discretion of respondents Judge and Sheriff; in fact, there is no allegation to that effect; furthermore, the proper remedy of petitioner appears to have been an appeal from the respondent Judge’s Order denying the Motion to Set Aside Judgment by Default (Annex "K" of the Petition, and the Order denying Motion for Reconsideration and/or Motion for New Trial, Annex "V" of the Petition), as clearly ruled by the Supreme Court:chanrob1es virtual 1aw library

‘A proper motion to set aside the judgment by default under Section 13 of Rule 5 when denied, may give the defaulted defendant the right to appeal but the appeal in the case would be from. the order denying the motion and not from the judgment by default itself.’ (Strachan & MacMurray, Ltd. v. Court of Appeals, 62 SCRA 109, 113, quoting Luzon Rubber Mfg. Co. v. Estares, 52 SCRA 391).

Petitioner choose not to appeal, hence lost the right to do so. She cannot be allowed to resort to certiorari as a substitute therefor (’Certiorari cannot be maintained if appeal is available as a plan, speedy and adequate remedy.’ — Matanguihan v. Tenco, 95 SCRA 478). There seems no point therefore, in continuing with these proceedings.

It is further noted that by filing and maintaining this certiorari case instead of appealing from the order denying her motion to set aside the default, petitioner avoided putting up a supersedeas bond to cover the judgment award up to the date thereof, and avoided depositing the current monthly rentals, which is a sizeable amount already, considering the sic (6) years this case has been pending Delay therefore is on petitioner’s side and renders clear the pattern of delay noted in her numerous motions for postponements, as well as changes of counsel (note that Atty. Andresito X. Fornier who personally handled this case for the original counsel ‘Ablan, Santiago & Fornier’ and then ‘Santiago & Fornier’ and later ‘Santiago, Fornier and Associates’ is back handling the case for the firm ‘Santiago, Fornier, Tinga & Associates’ after an interregnum during which petitioner’s counsel was ‘Quisumbing, Caparas, Ilagan, Alcantara & Mosqueda’.)

WHEREFORE, the Petition is hereby DISMISSED for failure to prosecute, with costs against petitioner.

IT IS SO ORDERED."cralaw virtua1aw library

Then, on February 11, 1983, respondent Judge completely reversed himself and issued the following order without any legal or factual basis therefor, to wit:jgc:chanrobles.com.ph

"As prayed for by petitioner through counsel, the Order dismissing the petition for failure to prosecute is hereby reconsidered and set aside.

The instant petition is hereby reinstated.

IT IS SO ORDERED."cralaw virtua1aw library

Hence, petitioner was constrained to file the instant petition for certiorari with preliminary injunction before this Court, praying for the setting aside of the order issued on February 11, 1983 on the ground that respondent Judge was without jurisdiction to entertain the petition for certiorari a quo, much less reinstate the same without any legal justifications.

The instant petition is impressed with merit. The first order of respondent Judge dated November 15, 1982 dismissing private respondent’s petition for certiorari is correct, the same being in full conformity with the law and jurisprudence as the order itself cites. But by setting it aside in a subsequent order issued without any legal or factual basis therefor, respondent Judge acted arbitrarily, capriciously and frivolously, which is a clear and grave abuse of discretion amounting to excess or lack of jurisdiction. The second order which also reinstated the petition for certiorari must be set aside.

The circumstances under which the order of reinstatement was issued by respondent Judge in the manner related by petitioner where said order was issued after respondent Judge had been charged for contempt before the Supreme Court by the petitioner, may lend belief and credibility to the allegations of bias and partiality against respondent Judge but We are not concerned here with the motives of the Judge in issuing the questioned order. It suffices that the said order, on legal grounds, is a reversible error.

The records clearly disclose that private respondent Dominga Mapa has lost her right to appeal since she cannot be allowed to resort to certiorari as a substitute therefor. The judgment rendered by the City Court of Pasay City in Civil Case No. 11964 has become final and executory except that which orders her to pay P12,000.00 in the concept of liquidated damages, which in conformity with Our judgment herein is set aside.

This We are constrained to order and direct in the interest of a speedy administration of justice.

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the supplemental petition for review filed in G.R. No. L-48376-85 is granted and We hereby REVERSE and SET ASIDE the decision of respondent Judge dated December 21, 1982. The judgment of the Trial City Court of Pasay City is hereby AFFIRMED but MODIFIED in that the award of P4,000.00 as liquidated damages is excluded and rejected.

In G.R. No. 63387, the order of respondent Judge dated February 11, 1983 is hereby REVERSED and SET ASIDE and We hereby order the dismissal of the petition for certiorari filed by private respondent in Civil Case No. 5187-P before the Regional Trial Court, National Capital Judicial Region, Pasay City Branch CX, and the execution of the final judgment of the City Court of Pasay City, Branch IV in Civil Case No. 11964 as modified herein in that the award of liquidated damages is similarly excluded and rejected.

Costs against respondents.

SO ORDERED.

Concepcion, Jr., Escolin and Cuevas, JJ., concur.

Makasiar and Abad Santos, JJ., took no part.

Aquino, J., concurs in the result.

1. REMEDIAL LAW; EVIDENCE; FINDING OF FACT OF THE TRIAL AND APPELLATE COURTS BINDING AND CONCLUSIVE ON SUPREME COURT. — The factual finding of the trial court and the Court of Appeals that the wife, Petra Buenaventura, did not consent to the deed of exchange by her husband is binding and conclusive on this Court.

2. CIVIL LAW; OBLIGATIONS AND CONTRACTS; DEED OF EXCHANGE AFFECTING CONJUGAL PROPERTY VOID FOR LACK OF WIFE’S CONFORMITY. — The deed of exchange was void because of the absence of the wife’s conformity to such disposition of the ganancial property, as required by Article 166 of the Civil Code, a mandatory requirement (Art. 5, Civil Code, 1 Padilla, Civil Code, 1975 Ed., p. 742; Tolentino v. Cardenas, 123 Phil, 517; Bucoy v. Paulino, L-25775, April 26, 1968, 23 SCRA 248, 274).

3. ID.; ID.; ID.; VENDEE NOT AN INNOCENT PURCHASER FOR VALUE WHERE VENDOR COULD NOT TRANSMIT ANYTHING. — The Santos spouses cannot be regarded as innocent purchasers for value (a term used with respect to registered lands) because, as the deed of exchange was void abinitio, Mariano Garcia acquired no rights whatsoever. He could not transmit anything to his vendees. Nemo dat qui non habet (No one can give what he has not).

This is a controversy about a parcel of unregistered land with an area of 581 square meters located at Barrio Parulan, Plaridel, Bulacan, assessed at P930. It was the conjugal property of the spouses Eugenio de Jesus and Petra Buenaventura acquired on November 6, 1966 with earnings from their drugstore business.

On March 26, 1969, De Jesus, 92, while suffering from a cataract, signed a supposed deed whereby he exchanged that land for the 3,600 square meters of riceland, the proindiviso share of his tenant, Mariano Garcia, 58, covered by OCT No. 3915. De Jesus allegedly signed She deed on the understanding that it was not a deed of exchange but a document whereby Garcia would build a house on his 581-square meter lot and pay the land taxes thereon. His wife, Petra Buenaventura, did not sign the deed.

There were deficiencies in the deed which were filled up with the use of another typewriter, after De Jesus had signed it, to make the document registerable under Act No. 3344. The notary did not testify on its due execution.

Mariano Garcia transferred the said land to the spouses Arsenia Garcia and Herman Santos who allegedly delivered its possession to the spouses Natividad Antonio and Arcadio Flores. The Flores spouses built a house of light materials and a hut (kulakob). Clara Gatmaitan Vda. de Antonio resided therein with her daughter and son-in-law.

On November 25, 1969, the Santos spouses sued the Flores spouses and Mrs. Antonio for the recovery of possession of the land. This case was docketed as Civil Case No. 108-B of the Court of First Instance of Bulacan, Baliuag Branch IV.

On February 2, 1970, the De Jesus spouses sued Mariano Garcia and the Santos spouses for the purpose of annulling the deed of exchange and the conveyance of the said land to the Santos spouses (Civil Case No. 127-B).

The trial court voided the deed of exchange. The Court of Appeals affirmed that judgment with the modification that the heirs of Eugenio De Jesus and Petra Buenaventura should return to Mariano Garcia the riceland which they received under the deed of exchange and that the lower court’s order of August 27, 1975, dismissing Civil Case No. 108-B was affirmed.

In this appeal, Mariano Garcia and the Santos spouses assign six "grave errors of law" which in reality involve factual issues about the validity of the deed of exchange. They are not the purely legal issues contemplated in section 4, Rule 45 of the Rules of Court.

We hold that the finding of the trial court and the Court of Appeals that the wife, Petra Buenaventura, did not consent to the deed of exchange executed by her husband is binding and conclusive on this Court.

The deed of exchange was void because of the absence of the wife’s conformity to such disposition of the ganancial property, as required by article 166 of the Civil Code, a mandatory requirement (Art. 5, Civil Code; 1 Padilla, Civil Code, 1975 Ed., p. 742; Tolentino v. Cardenas, 123 Phil. 517; Bucoy v. Paulino, L-25775, April 26, 1968, 23 SCRA 248, 274).

The Santos spouses cannot be regarded as innocent purchasers for value (a term used with respect to registered lands) because, as the deed of exchange was void ab initio, Mariano Garcia acquired no rights whatsoever. He could not transmit anything to his vendees. Nemo dat qui non habet (No one can give what he has not).

WHEREFORE, the judgment of the Court of Appeals is affirmed with costs against the petitioners.

SO ORDERED.

Concepcion, Jr., Guerrero and Cuevas, JJ., concur.

Makasiar, J., concurs in the result.

Abad Santos and Escolin, JJ., took no part.

1. LABOR AND SOCIAL LEGISLATION; LABOR CODE; EMPLOYER-EMPLOYEE RELATIONSHIP; NATURE OF EMPLOYMENT; WRITTEN PROOF OF PERMANENT EMPLOYMENT REQUIRED IN CASE AT BAR. — Private respondent’s claim that if there was no recent contract on his employment on a regular basis, it was because he was now a regular employee and contracts are given only to those who will pass the probationary period and the rank-and-file employees, not to those managerial ones, is not only unsupported by the evidence but also contrary to the usual and customary business practices, especially in multi-million enterprises as the petitioner corporation herein. And considering the magnitude of its sales and operations, petitioner corporation must have taken the necessary precautions to test the qualifications, ability and performance of its Branch Manager through a probation period before he is hired permanently and given liberal terms and benefits, including 1% of the net annual proceeds in sales. Moreover, private respondent is a CPA, Finance Officer, and No. 2 man in Warner, Barnes & Co. For the security of his tenure in his new position, it was his duty, at least he owed it to himself, to have insisted on a written contract of regular and permanent employment as Branch Manager, but he did not. The conclusion is inevitable that his hiring was temporary.

2. ID.; ID.; ID.; ID.; PROBATIONARY EMPLOYMENT; MANAGEMENT PREROGATIVE TO SELECT PERSON FOR EMPLOYMENT; CASE AT BAR. — Managing petitioner’s Iloilo Branch was an entirely new experience for Private Respondent. It was, therefore, necessary for private respondent to undergo a period of probation to test his qualifications, skill and experience. Indeed. the employer has the right or is at liberty to choose as. to who will be hired and who will be declined. It is within the exercise of this right to select his employees that the employer may set or fix a probationary period within which the latter may test and observe the conduct of the former before hiring him permanently. "The right of a laborer to sell his labor to such persons as he may choose, is in its essence, the same as the right of an employee to purchase labor from any person whom it chooses. The employer and the employee have thus an equality of right guaranteed by the Constitution.’If the employer can compel the employee to work against the latter’s will, this is servitude. If the employee can compel the employer to give him work against the employer’s will, this is oppression." (Mills v. United States Printing Co., 99 App. Div., 605; 91 N.Y.S, 185, 189-192, cited in Pampanga Bus Company, Inc. v. Pambusco Employees’ Union, Inc., 68 Phil. 541)

3. ID.; ID.; ID.; TERMINATION OF EMPLOYMENT; PREVIOUS CLEARANCE TO TERMINATE MANAGERIAL EMPLOYEE, NOT REQUIRED. — Recent decisions of this Court on the dismissal of managerial employees have laid down the doctrine that under Policy Instruction No. 8 of the Secretary of labor "the employer is not required to obtain a previous written clearance to terminate managerial employees in order to enable him to manage effectively." (Associated Citizens Bank v. Ople, L-48896, February 24, 1981, cited in Bondoc v. People’s Bank & Trust Company, 103 SCRA 599). In St. Luke’s Hospital, Inc. v. Minister of Labor, 116 SCRA 240, We held that "it looks to Us more practical and proper to leave things as they are instead of compelling petitioner to reinstate in a sensitive position one whose attitude could per chance spell out not only more financial difficulties to petitioner but also possible inadequacies in the required dietary standards it has to maintain for its patients. Petitioner does not have to wait ‘for one more serious act of insubordination and disrespect to express instructions of management — (which would warrant or) mean forfeiture of [her] right to employment with petitioner."cralaw virtua1aw library

4. ID.; ID.; ID.; ID.; PROBATIONARY EMPLOYER MAY BE TERMINATED AFTER SIX MONTHS FOR CAUSE. — Under the law, Article 282 of the Labor Code, a probationary employee may be terminated after six months for a just cause or when he fails to qualify as a regular employee.

5. ID.; ID.; ID.; ID.; LOSS OF CONFIDENCE, VALID GROUND. — It is true that mere allegation of loss of confidence by employer on his employee is not sufficient cause for his dismissal. But loss of confidence is a valid ground for dismissing an employee, and proof beyond reasonable doubt of the employee’s misconduct is not required to dismiss him of this charge. It is sufficient if there is some basis for such loss of confidence (Central Textile Mills, Inc. v. National Labor Relations Commission, 90 SCRA 9). While a managerial employee may be dismissed merely on the ground of loss of confidence, the matter of determining whether the cause of dismissing an employee is justified on ground of loss of confidence, cannot be left entirely to the employer. Impartial tribunals do not rely only on the statement made by the employer that there is "loss of confidence" unless duly proved or sufficiently substantiated (De Leon v. National Labor Relations Commission, 100 SCRA 691).

6. ID.; ID.; ID.; ID.; ID.; CASE AT BAR. — In the case at bar, We are satisfied that petitioner has valid grounds to charge its Branch Manager with loss of confidence by reason of the overall performance he has demonstrated within the probationary period which showed that he is not qualified to be the regular or permanent Branch Manager of petitioner corporation in Iloilo City. His dismissal does not appear to Us arbitrary, fanciful or whimsical. In the last and ultimate analysis, the prerogative and judgment to hire employees under terms and conditions designed to achieve success in its business activities belongs to management which may not be unduly impaired, limited or restricted. We, therefore, rule that public respondents committed grave abuse of discretion in ordering the reinstatement of private respondent without substantial evidence in support thereof.

This is a petition for certiorari assailing the Order of the Minister of Labor which affirmed the decision of the Regional Director of Region VI dated November 27, 1980 directing the reinstatement of the private respondent Narciso Belicena, Jr. as Branch Manager of the petitioner, Grand Motor Parts Corporation, Iloilo Branch, Iloilo City, "with backwages from the time he was dismissed (August 31, 1980, the date complainant received the letter of termination) up to the time he is actually reinstated without loss of seniority rights, benefits, and other privileges under existing laws, decrees, and agreement, verbal or written, entered into by the parties at the time of hiring."cralaw virtua1aw library

Since the above decision of the Regional Director was rendered purely on the basis of the position papers of the petitioner corporation and the private respondent, without hearing nor cross-examining the parties, and petitioner claims grave abuse of discretion committed in public respondents’ order for the reinstatement of the Branch Manager, We gather the antecedent facts from the respective position papers of the parties.

In the complaint filed by Narciso Belicena, Jr. against the Grand Motor Parts Corporation and Fred Cisneros as Personnel Manager dated September 4, 1980 filed with the Regional Office No. VI, Labor Relations Division, Ministry of Labor and Employment, the complainant charged respondents the following causes of action:jgc:chanrobles.com.ph

"1. Illegal dismissal without justifiable reason or report from the Ministry of Labor & Employment — August 25, 1980;

2. Reinstatement with backwages — P3,000.00 — monthly salary;

3. Transportation allowance-as gasoline expenses — Total P300.00 at P100.00 per week since Aug. 18 to Sept. 5/80;

4. Non-payment of 13th month bonus — Total P1,250.00 for 5 mos. at P3,000.00 monthly salary;

5. 1% share in net profit at the end of the year — P25,000.00."cralaw virtua1aw library

According to the position paper submitted by Branch Manager Belicena, Jr., the "facts concerning (his) hiring and subsequent dismissal by the Grand Motor Parts Corp." are:jgc:chanrobles.com.ph

"Just before Christmas of 1979, I met Mr. Alfredo Cisneros, who was introduced as the Acting Branch Manager of Grand Motor Parts Corporation, Iloilo Office. In the course of our conversation, he told me they need a man, preferable a CPA, to manage the Iloilo Office since he is really based in Cebu. When I told him that I am a CPA, he offered me the job. I said I will seriously consider his offer. Then, he interviewed me. In all honesty, I told who I am.

1. That I am presently connected with Warner, Barnes & Co., Inc. — Iloilo Office.

2. That I joined Warner, Barnes in 1966 and rose from the rank of bookkeeper to Chief Accountant and to Finance Officer, the present position I am holding in a span of 14 years.

3. That I graduated from the University of the East in 1962 and had been working since I started college work.

4. That my present salary is P2,408.00 per month.

5. That my fringe benefits are as follows:chanrob1es virtual 1aw library

a. Provided with company car

b. No limit in gasoline

c. No limit in repair expense

d. Free medical, dental, hospitalization, medicines without limitation

e. That I am a practicing CPA with monthly retainer’s fees of P350.00

f. That I hold unofficially the position of No. 2 man in the Branch and such is a signatory on all checks

g. That I have never been involved in any acts of dishonesty or disloyalty to the company in my fourteen (14) years of work

h. That they are free to make inquiries with Warner, Barnes as to the validity of the information I am giving him.

In March 1980, Mr. Cisneros followed up his offer and this time in a more official manner with the following benefits.

1. That I will be hired on a regular basis, not passing thru the probationary period since I more than qualify for the position

2. My monthly basic pay is P3,000.00.

3. My entertainment allowance is P1,000.00

4. Free car with unlimited gasoline and repair expenses

5. That I will also have free hospitalization, dental, medical and medicines without limit

6. That aside from the usual 13th month pay, I will also get a 1% share on the net profit of the Branch at the end of a 12-month operation. The Branch is averaging P600,000.00 as its net profit for a 12-month operation or at least P5,000.00 a month.

7. That I can only be terminated if in case I become grossly incompetent and dishonest.

With all these agreements and benefits, I accepted the offer and forsook my 14 years service with Warner, Barnes & Co., Inc.



In April 1, 1980, I started working as Branch Manager of Grand Motor Parts Corporation and also of Grand Tire Recapping Plant, Iloilo Offices.

In April 22, 1980, I had a serious misunderstanding with Mr. Benito Uy. I was blamed for a misdemeanor by a probationary salesman and for which I was not aware nor told about it. Since, I believed that I was judged rashly, I called Mr. Cisneros in Cebu and told him that I am leaving the company since I have now misgiving concerning management’s maturity and intelligence in handling problems. But, he asked me to stay on since he will settle things with Mr. Uy in Bacolod. Since, I do not want to put Mr. Cisneros, the company in a bad light I stayed but intent on resigning upon Mr. Cisneros’s arrival from Bacolod. Mr. Cisneros arrived on April 26, 1980 and told me that Mr. Uy understood the whole situation and I must understand the characters of my superiors. He prevailed me to stay on. He fired the erring salesman because the company would rather fire the salesman than lose me since it is hard to look for professional men. To show his sincerity, he followed me home. There, he told my wife that she should not feel insecure since I am now working with a very stable and fraternal company. That, again, I will never be terminated unless I am highly incompetent and dishonest. So, I stayed on.



On August 18, 1980, after Mr. N. Garcia and company left Iloilo, I was relieved of some of my rights and privileges as Branch Manager of GMPC and GTRC, Iloilo Offices. Mr. A. Cisneros executed these relief.

On August 31, 1980 came the letter of termination signed by Mr. Alfredo Cisneros, now the Personnel Manager. It was not signed by Mr. N. Garcia, the President."cralaw virtua1aw library



On the other hand, the position paper submitted by the Grand Motor Parts Corporation through counsel, states the following:jgc:chanrobles.com.ph

"There were several persons who applied as manager, including the complainant herein. Mr. Cisneros chose the complainant to take over the Iloilo Branch, subject to certain terms and conditions as herein discussed.

The respondent is award that complainant in his fourteen years of service with Warner Barnes and being a Certified Public Accountant failed to get a promotion to the rank of Manager.

As a measure of protection, considering the responsibility and the amount of the investments attached to the job, the respondent gave the complainant a 4 to 6 months probation or observation period. This period of time was expressly agreed upon by the complainant and Fred Cisneros to determine the standard of complainant’s managerial ability, competency and excellence. It was spelled out to the complainant that he may not qualify for the job based on his performance during the 4 to 6 months period running the risk of not being able to qualify for the job and lose employment in the process.

Mr. Cisneros clarified to the complainant that if within the observation or probation period he failed to qualify as branch manager he will be refused final appointment and the respondent will be forced to terminate him. It was precisely for this reason that complainant could not produce any written appointment because the permanency of his position is still to be determined by the respondent corporation after the lapse of the six months probationary period.

As a matter of fact, complainant as of April 1980 has not yet resigned from Warner Barnes hoping that in the event of his disqualification from the respondent, he will have an opportunity to return to his job at Warner Barnes, as Accountant or Finance Officer.

Within the said probation period, Fred Cisneros was the one in charge in the supervision of the complainant’s performance. Mr. Cisneros has to stay in Iloilo to give management advice to the complainant, insuring that proper managerial policies are laid down.

II. Incidents after April 1, 1980:chanrob1es virtual 1aw library

A. Sometime in the month of May, 1980, a salesman of the respondent named Hernaldo Porquez figured in a vehicular collision causing damage to the respondent’s delivery ‘pick-up’ vehicle. This incident was brought to the attention of the Cebu main office through the cashier of the Iloilo Branch three days after the incident. The incident has caused damage to the respondent corporation assessed to more than Two Thousand Pesos (P2,000.00).

When Benito Uy, a member of the Board of Directors and Treasurer of the said respondent corporation, inquired from the complainant as to the details of the vehicular incident and the remedy or measures taken by the Iloilo Branch, the complainant claimed lack of knowledge about the incident. The complainant likewise failed to promptly provide administrative discipline to the erring employee.

The posture of ignorance adopted by the complainant has shocked the Cebu head office. For a manager ignorant of what happened to the activities of his erring personnels causing damage to the property of the company place the business operation of the company in grave jeopardy.

On account of this incident, the complainant was reprimanded by the Cebu Head Office and Fred Cisneros has to go back to Iloilo to enable the complainant manage the Iloilo Branch satisfactory to the head office. As noted, this incident occurred during the observation period as previously mentioned.

III. Complainant’s resignation with Warner Barnes:chanrob1es virtual 1aw library

Even as of May, 1980 while complainant was the performing his duties as Branch Manager, he was still connected with Warner Barnes where he was employed as some sort of Accountant or Finance Officer. He informed Mr. Cisneros that just in case he could not qualify he will go back to Warner Barnes. Unfortunately, Warner Barnes pressed the complainant to finally decide whether he will stay with Warner Barnes or to resign and join the respondent corporation. Thus facing the risk of not being qualified he chose to stay with the Respondent. After all, the benefits and privileges that he enjoys is much better than that of Warner Barnes.

With that decision, the complainant tendered his resignation with Warner Barnes, willing to assume the risk in connection with his new job as manager.

IV. Complainant repeatedly failed to follow company policies and instructions from Head Office:chanrob1es virtual 1aw library

In the course of complainant’s operation, he was required to submit promptly a monthly Income or Loss Statement and Comparative Projection and Actual Sales Report. The prompt submission of these reports are mandatory considering that his performance should be closely monitored while under probation.

These two reports were rot submitted promptly to the Head Office of respondent Corporation, to the extent that on several occasions, he was warned of his apparent neglect and inability to comply with this basic instructions. Considering his lack of managerial experience, the respondents could not yet afford to leave everything to the complainant the Iloilo Branch without the closest supervision on his managerial ability.

Inspite of series of reminders to prepare and submit the said documents, he miserably failed to submit the same. Finally he was called by Nemesio Garcia, the President of the respondent corporation, to come to the head office in Cebu in order to evaluate his performance and to produce the latest monthly Income and Loss Statement and Comparative Projection and Actual Sales Report. He was likewise instructed to bring with him the Iloilo Branch Accountant, who will provide the basic information on the operation of the Iloilo Branch. He was specifically informed by Mr. Cisneros that he will be ready to present facts relative to average monthly expenditures, sales, collection, account receivables, minimum and maximum inventory and all other matters related to the operation of the Iloilo Branch.

The meeting took place in the presence of the President and two Vice-President. When complainant was asked basic information about company operations of the Iloilo Branch, the complainant failed to provide accurate and necessary answers and could not produce the necessary data available. The President and two Vice-President were so disappointed that they walked out of like conference. Mr. Cisneros was then called up and he was made to explain to the President why the complainant selected as probable manager could not provide basic information as to the operation of Iloilo Branch, inspite of his stature as Certified Public Accountant.

The President and the members of the Board of Directors began to feel apprehensive that they are taking big risk in entrusting a multi-million peso investment to a man who could not comply simple routinary information vital to management.

Again in August, 1980, when the President and the Vice-President went to Iloilo in an inspection trip, supervising the operation of the Iloilo Branch, the complainant could not present the business condition of the Iloilo Branch. Information sought by the President such as Sales, Cash and Charges Collection, Budgeted and Actual Sales, Projection, Accounts Receivables could not be obtained and no datas to this effect were provided. Facts and reports were in disarray.

V. The Performance of the Complainant:chanrob1es virtual 1aw library

In the Comparative Performance Report dated July 8, 1980, on the operation of Iloilo Branch for the month of June and May, 1980, the cash sales of the Iloilo Branch went down to P91,318.41 for June, 1980 as compared to the sales for the month of May, 1980 in the sum of P174,697.77. The lowering of the sales could have been averted had the necessary reports been submitted on time to assess the performance of the complainant. This sudden dip in the sales of the Iloilo Branch was not properly explained by the complainant.

Extension of personal accounts, were committed by the complainant in blatant violation of company policy. It was repeatedly stressed to the complainant that no personal accounts will be extended by the Iloilo Branch unless served with clearance from the Head Office in Cebu, considering the unpaid collections accumulated by the former manager of the Iloilo Branch.

The personal accounts extended by the complainant were as follows:chanrob1es virtual 1aw library

(List omitted.)

As of November 6, 1980, these personal accounts extended by the complainant produce delinquent accounts amounting to P18,435.80."cralaw virtua1aw library

Subsequently attached to the above position paper of the Grand Motor Parts Corporation is the letter of termination addressed to the complainant Branch Manager which reads:jgc:chanrobles.com.ph

"25 August 1980

Mr. Narciso Belicena, Jr.

Grand Motor Parts Corporation

Iloilo City

Dear Nonong:chanrob1es virtual 1aw library

When you applied for the position of Branch Manager, our understanding was clear that you will be on provision (sic) for a period of between four to six months, within which, you may quit with either verbal or formal notice if you should not desire to continue.

Likewise, the Management reserves the right to terminate your services, if, upon observation, the same is not satisfactory. It was emphasized that you were taking the risk of possibly losing your job.

Management’s observation indicate that you do not qualify for the position. It is with regret that based on our agreement upon employment, we have to terminate your services effective immediately.

Upon receipt of this formal notice, kindly turn over to Mr. Sammy Gang the Iloilo Branch.

Very truly yours,

GRAND MOTOR PARTS CORPORATION

(SGD.) FRED CISNEROS

Personnel Manager"

On November 13, 1980, complainant Branch Manager filed his answers to the position paper of the corporation, reiterating that he was hired as Branch Manager but not on an acting capacity and on the terms and conditions recited in his original position paper; that his resignation from Warner Barnes took effect on May 1, 1980 and he started working with Grand Motor Parts Corporation on April 1, 1980 as he was on a 30-day vacation/sick leave from Warner; that the mishap involving the company’s vehicle which was used without his permission and knowledge could not be blamed upon him; that the alleged reports which he failed to send were not reminded to him, verbally or in writing; that his sales for the period April to August, 1980 is higher compared to that for the same period in 1979; that the alleged accounts remaining unpaid as of November 6, 1980 would have been collected in full if he were still the Manager; that if ever there was no written contract on his employment on a regular basis, it was because he was now a regular employee and contracts are given only to those who will pass the probationary period and the rank-and-file employees, not to those managerial ones.

He further stated and We quote: "I trusted management. Besides, if I will pass through the probationary period, I will reject the offer. Furthermore, I was employed, very secure and happy in my job when Mr. Cisneros offered me the job. I had a very nice, comfortable, secure and well-paying job at Warner, Barnes and enjoying certain privileges and fringe benefits which other companies in Iloilo City does not offer. Mr. Fred Cisneros ‘pirated’ me from Warner, Barnes . . ."cralaw virtua1aw library

To further support his stand, Belicena submitted: (1) Letter of Warner, Barnes & Co., Inc. dated April 28, 1980 accepting his resignation effective May 1, 1980; (2) Letter of transmittal dated August 19, 1980 of all the reports as discussed thoroughly with Mr. Fred Cisneros on August 18, 1980; (3) Letter of April 29, 1980 requesting for written instructions. This was not answered; (4) Letter of July 7, 1980 from head office addressing him as Manager; (5) Certification from BF Goodrich, Bacolod City; and (6) Profit and Loss Statement of Grand Motor Parts Corp. for the period April to June, 1980 showing net profit of P196,267.85 for three months operation of P65,422.63 per month.

As earlier indicated, the Regional Director, Nazareno Q. Bedia, ruled in favor of the Branch Manager, ordering his reinstatement to his former position with backwages without loss of seniority rights, benefits and other privileges under existing laws, decrees and agreements, verbal or written, entered into by the parties at the time of hiring. He held that" (f)rom the quantum of evidence, We are of the opinion, and so hold that complainant’s appointment was permanent in nature. Complainant was ‘pirated’ so to speak. He was persuaded to leave his position as the No. 2 official of Warner, Barnes Co., Inc., Iloilo Branch, where he has already served for 14 years. For complainant to leave an already lucrative position for another job which is not permanent would be highly incomprehensible. The argument by respondent that complainant was motivated by the fact that he wants to be No. 1 in the office is pure conjecture. Complainant rose from the ranks to the No. 2 position. It is safe to assume that in the ordinary course of events he would rise to the No. 1 position in the office where he was employed."cralaw virtua1aw library

On the issue whether complainant was dismissed for cause or not, the Regional Director held that there were no such acts or omissions committed or omitted by the complainant as charged by the corporation; that the assertion of respondent corporation that complainant could not prepare the financial reports promptly is unbelievable considering that complainant is a financial officer of a marketing firm, Warner Barnes & Co., Inc.; that as regards his sales performance, complainant’s assertion is explicit in that his sales for the period of his employment is bigger than the sales in the previous year covering the same period; that the alleged extension of credit against company policy is not backed up by even an iota of evidence since no policy, which was made known to complainant was presented; that complainant was not neglectful nor incompetent in respect to the wrong doing of a personnel of the Iloilo Branch who later tendered his resignation and the incident settled.

The Grand Motor Parts Corporation appealed the decision of the Regional Director to the Ministry of Labor and in his order dated October 22, 1981, the Deputy Minister, Vicente Leogardo, Jr., by authority of the Minister, affirmed the order appealed from and dismissed the appeal of the Corporation for lack of merit.

According to the Deputy Minister’s order now under review, respondent’s contention that complainant was hired on a temporary or probationary basis for a period of four to six months and as such, his services could be terminated anytime and that his dismissal on the main is premised on his failure to qualify for the job of manager and inability to manage the branch, "is without merit. The fact that complainant was enticed and pirated by respondent from the Warner Barnes Co., Inc. and given higher pay and benefits is an eloquent proof of respondent having recognized complainant’s technical qualification and experience, which exempt him from the probationary provisions of the Labor Code. The grounds for dismissal cited by respondent are in the nature of generalizations and do not constitute justifiable causes which should be substantiated by proof of specific acts of managerial incompetence. Considering that complainant was hardly four months in the service, we are more inclined to believe that any shortcoming on his part perceived by the respondent was attributable to his newness on the job for which a reasonable time for orientation and adjustment must be permitted, considering the magnitude of his duties and responsibilities as Branch Manager."cralaw virtua1aw library

Petitioner now comes to Us and assails the order of the Deputy Minister of Labor on the ground that:chanrob1es virtual 1aw library

I. The petitioner was denied due process when it was ordered to reinstate private respondent with backwages without hearing with opportunity to cross-examine and submit evidence on the basis merely of position papers, inspite of an agreement by the parties that summary investigation will be conducted thereafter; and

II. Grave abuse of discretion was committed against petitioner when it was ruled that private respondent cannot be dismissed during the period of probation and on the fifth month he was dismissed for failing to pass probation, and the Labor Minister admitted in his order that private respondent had shortcomings.

The more important and substantial issue that We must first resolve is whether private respondent’s employment as Branch Manager was temporary or probationary, and not regular and permanent.

It is quite significant and very striking at the outset that Belicena, private respondent herein, did not and could not present any written proof of his appointment or employment as regular and permanent Branch Manager of petitioner corporation, which he assumed as of April 1, 1980. It is admitted by him that it was only on April 28, 1980 that he resigned from his previous position as Finance Officer of Warner, Barnes & Co., Inc. effective May 1, 1980, which fact lends strong support to petitioner’s contention that the hiring of Belicena was probationary for a period of four to six months. For otherwise, Belicena, if his appointment was regular and permanent as of April 1, 1980, would have resigned immediately from Warner, Barnes & Co. on April 1, 1980 because by then, he was assured of a permanent tenure. But he had to send his resignation letter on April 28, 1980, hence, it is only logical and reasonable to conclude that before April 28, 1980, he was not yet sure of his status in the petitioner corporation, whether he would qualify for the job as Manager and thus be hired permanently, or not.

Private respondent’s claim that if there was no recent contract on his employment on a regular basis, it was because he was now a regular employee and contracts are given only to those who will pass the probationary period and the rank-and-file employees, not to those managerial ones, is not only unsupported by the evidence but also contrary to the usual and customary business practices, especially in multi-million enterprises as the petitioner corporation herein. And considering the magnitude of its sales and operations, petitioner corporation must have taken the necessary precautions to test the qualifications, ability and performance of its Branch Manager through a probation period before he is hired permanently and given liberal terms and benefits, including 1% of the net annual proceeds in sales. Moreover, private respondent is a CPA, Finance Officer, and No. 2 man in Warner, Barnes & Co. For the security of his tenure in his new position, it was his duty, at least he owed it to himself, to have insisted on a written contract of regular and permanent employment as Branch Manager, but he did not. The conclusion is inevitable that his hiring was temporary.

We find merit in the contention of the petitioner that "private respondent had not been hired as manager of any firm before his employment with petitioner. The highest previous position he attained was that of Finance Officer. His position with petitioner’s Iloilo Branch was his first as Manager. Moreover, Warner, Barnes & Co., private respondent’s previous employer, and petitioner are engaged in different kinds of business. Managing petitioner’s Iloilo Branch was an entirely new experience for Private Respondent. It was, therefore, necessary for private respondent to undergo a period of probation to test his qualifications, skill and experience." Indeed, the employer has the right or is at liberty to choose as to who will be hired and who will be declined. It is within the exercise of this right to select his employees that the employer may set or fix a probationary period within which the latter may test and observe the conduct of the former before hiring him permanently. "The right of a laborer to sell his labor to such persons as he may choose is, in its essence, the same as the right of an employer to purchase labor from any person whom it chooses. The employer and the employee have thus an equality of right guaranteed by the Constitution.’If the employer can compel the employee to work against the latter’s will, this is servitude. If the employee can compel the employer to give him work against the employer’s will, this is oppression.’" (Mills v. United States Printing Co., 99 App. Div., 605; 91 N.Y.S. 185, 189-192, cited in Pampanga Bus Company, Inc. v. Pambusco Employees’ Union, Inc., 68 Phil. 541).

The finding of both the Regional Director and the Deputy Minister of Labor that private respondent was "pirated" is not supported by the evidence on record. On the contrary, the records disclose that Belicena applied for the position as Branch Manager on March 13, 1980 as shown in his application marked Annex "F" to the petition, pp. 41-43, rollo, wherein he stated that the starting salary desired was P3,250.00. Even assuming that he was induced to work with the petitioner corporation, the inducement is a normal and legitimate practice in business circles and concerns in the face of stiff competition to net more sales and increase the market for their products.

The next issue to be resolved is whether private respondent, being a probationary Branch Manager, was terminated for just cause. It is petitioner’s contention that Belicena was terminated during his probationary period because (a) he failed to submit promptly the monthly Income and Loss Statement, Comparative Projections & Actual Sales Report; (b) the Comparative Performance Report dated July 8, 1980 on the operation of the Iloilo Branch for the month of June and May, 1980, the Cash Sales of the Iloilo Branch went down to P91,318.41 for June, 1980, as compared with the sales for the month of May, 1980 in the sum of P174,697.77; (c) Belicena in violation of company policy and without clearance from the head office in Cebu, extended personal accounts in favor of 15 persons which as of November, 1980 produced delinquent accounts amounting to P18,435.80; and (d) Belicena claimed lack of knowledge of the vehicular accident caused by a subordinate and failed to provide prompt administrative disciplinary action against the erring employee.

The answers of Belicena to the above charges submitted in his position papers dated October 22, 1980 and November 13, 1980 hereinabove cited, indicate, to Our mind, inadequacy, if not inefficiency in the discharge of his duties as Branch Manager. His letter dated August 19, 1980 to the President of petitioner corporation enclosing (1) Actual Sales and Collection for GMPC from Jan.-July, 1980; (2) Cash and Charge Sales for GMPC from Jan.-July, 1980 compared to Budget, (3) GMPC — Financial Statement from January to June 1980, (4) GMPC Trial Balance as of June 30, 1980; (5) Monthly breakdown of our expenses from January to June 1980; (6) Our GTRC Report on actual sales and collection, January-July 1980; (7) Our GTRC report on Charge and Cash Sales as compared to Budget, clearly prove and demonstrate his failure to submit monthly reports. The reports submitted by him in the cited letter are for the seven months period of January to July, 1980. That a monthly report of operations is essential to the business of the petitioner cannot be evaded or ignored by a Branch Manager, for the viability of its business life may well depend on these monthly reports.

Again, private respondent’s letter-request dated April 29, 1980 requesting "a. My specific jobs and responsibilities and limitations, as well; b. Our company’s accounting policies and procedures and the monthly reports and deadlines; c. Our company’s policies and procedures in the extension of CREDIT and approval of CREDIT LIMITS," simply shows that after being on the job as Branch Manager for nearly a month (he joined the corporation on April 1, 1980), Belicena has not shown any effort or initiative to familiarize himself with his duties and obligations, although petitioner corporation submits that a copy of the company brochure containing the requested data was given him (See Annex "1", pp, 106-131, rollo). Further, the fact that the erring salesman involved in the vehicular accident resigned afterwards does not absolve the Branch Manager for his failure to exercise supervision over his subordinates and to impose discipline over him. Neither can he escape responsibility for extending personal accounts to some 15 individuals in violation of a company policy by citing the letter of the Vice President/General Manager of petitioner corporation (Annex "K", rollo, p. 133) which refers to the corporate account of Asturias Sugar Central to the corporation.

The records further disclose that petitioner’s Vice President/General Manager called the attention of Branch Manager Belicena in his letter dated July 7, 1980 (Annex "K" to the petition, records, p. 133) that" (h)is June sales is only about 50% of our target. Can we not improve that performance this duly?" This in effect proved that the Branch Manager was not discharging his duties to the satisfaction of the management.

In fine from the documentary evidence on record, We hold that petitioner has clearly and convincingly established that the private respondent failed to pass the probationary period for the position of Branch Manager, and for lack of confidence, petitioner was justified in terminating or dismissing private respondent herein. As the respondent Deputy Minister of Labor has admittedly confirmed in the assailed Order, the "shortcoming on his (Belicena) was attributable to his newness on the job."cralaw virtua1aw library

Recent decisions of this Court on the dismissal of managerial employees have laid down the doctrine that under Policy Instructions No. 8 of the Secretary of Labor "the employer is not required to obtain a previous written clearance to terminate managerial employees in order to enable him to manage effectively." (Associated Citizens Bank v. Ople, L-48896, Feb. 24, 1981, cited in Bondoc v. People’s Bank & Trust Company, 103 SCRA 599). In St. Luke’s Hospital, Inc. v. Minister of Labor, 116 SCRA 240, We held that "it looks to Us more practical and proper to leave things as they are instead of compelling petitioner to reinstate in a sensitive position one whose attitude could per chance spell not only more financial difficulties to petitioner but also possible inadequacies in the required dietary standards it has to maintain for its patients. Petitioner does not have to wait ‘for one more serious act of insubordination and disrespect to express instructions of management — (which would warrant or) mean forfeiture of [her] right to employment with petitioner.’"

Under the law, Article 282 of the Labor Code, a probationary employee may be terminated after six months for a just cause or when he fails to qualify as a regular employee, to wit:jgc:chanrobles.com.ph

"ARTICLE 282. Probationary Employment. — Probationary employment shall not exceed sic (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee at the time of his engagement. An employee who is showed to work after a probationary period shall be considered a regular employee."cralaw virtua1aw library

It is true that mere allegation of loss of confidence by employer on his employee is not sufficient cause for his dismissal. But loss of confidence is a valid ground for dismissing an employee, and proof beyond reasonable doubt of the employee’s misconduct is not required to dismiss him of this charge. It is sufficient if there is some basis for such loss of confidence. (Central Textile Mills, Inc. v. National Labor Relations Commission, 90 SCRA 9). While a managerial employee may be dismissed merely on the ground of loss of confidence, the matter of determining whether the cause for dismissing an employee is justified on ground of loss of confidence, cannot be left entirely to the employer. Impartial tribunals do not rely only on the statement made by the employer that there is "loss of confidence" unless duly proved or sufficiently substantiated. (De Leon v. National Labor Relations Commission, 100 SCRA 691).

In the case at bar, We are satisfied that petitioner has valid grounds to charge its Branch Manager with loss of confidence by reason of the overall performance he has demonstrated within the probationary period which showed that he is not qualified to be the regular or permanent Branch Manager of petitioner corporation in Iloilo City. His dismissal does not appear to Us as arbitrary, fanciful or whimsical. In the last and ultimate analysis, the prerogative and judgment to hire employees under terms and conditions designed to achieve success in its business activities belongs to management which may not be unduly impaired, limited or restricted. We, therefore, rule that public respondents committed grave abuse of discretion in ordering the reinstatement of private respondent without substantial evidence in support thereof.

With the resolution of the issue under consideration in favor of the petitioner corporation, We deem it unnecessary to discuss and resolve the assailment of the petitioner that it was denied due process in the proceedings before the Regional Director.

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the Order of the Deputy Minister of Labor dated October 22, 1981 is hereby REVERSED and SET ASIDE. No costs.

PETITION GRANTED.

SO ORDERED.

Makasiar, Aquino, Concepcion, Jr., Abad Santos, Escolin and Cuevas, JJ., concur.

1. CRIMINAL LAW; RAPE; BLOW IN THE STOMACH CONSTITUTES VIOLENCE. — Appellants claim that Marlene was not subjected to any form of violence because "not a single (external) scratch, abrasion or redness was found in any part of her body." This contention is devoid of merit considering that the blow received by Marlene from Carmelo Felix hit her stomach which caused her to lose consciousness. It is of common knowledge that fist blows in the abdomen seldom, if ever, leave any external mark thereon. Dr. Reyes testified that the redness in the labia minora of Marlene Donato could have been caused by the insertion of a male organ into it and that complainant’s vagina "admits of two fingers with resistance." This only proves that she was a virgin at the time she was abused. She pleaded with Carmelo Felix to withdraw his organ from hers because of forced coition.

2. ID.; ID.; NOT NEGATED BY ABSENCE OF SPERMATOZOA. — The fact that during the physical examination of Marlene no spermatozoa was found in her organ does not necessarily mean that she was not raped. Well settled is the rule that in rape the slightest penetration is sufficient to consummate the crime. The absence of spermatozoa inside the vagina of Marlene may be due to the fact that the same could have been washed away when she was pushed by appellants to the water up to her navel.

3. REMEDIAL LAW; EVIDENCE; FLIGHT, INDICATIVE OF GUILT. — Appellants submit that upon hearing the shotgun, they scampered away for safety believing that it came from lawless elements. We cannot give credence to that. The fact is, they knew they had done something wrong against the helpless Marlene whom they had left behind to hide from the authorities. For, if they really knew that it came from lawless elements, they would bring her along with them in their flight. They fled from the scene of the crime out of a feeling of guilt for what they had done to Marlene.

About 7:25 in the evening of October 14, 1977, a Friday, Marlene R. Donato, left the premises of St. Paul College in Tuguegarao, Cagayan after having finished her examination. She went to her boarding house after which she took a tricycle for Caritan Sur, to see her friend, Consima Calderon, to postpone their trip to Bayabat (Marlene’s Barangay) the following day. At the house of Consima were appellants Carmelo Felix, Artemio Felix and Felix Poblete. After about 15 minutes, Marlene left the boarding house of Consima to return to her boarding house in the poblacion. She waited for a tricycle at a place about 15 meters away from the residence of Consima. The three appellants came and Felix Poblete invited her to take a joy ride with them. She declined saying that her sister was waiting for her at the boarding house. Immediately, Carmelo Felix held her, placing his right arm around her and his left hand over her mouth. Felix Poblete stopped a passing tricycle and Marlene was pushed into it. Carmelo Felix placed himself in front of her, while Felix Poblete rode behind the tricycle driver.

They proceeded to Barangay Bunton and upon reaching the bridge, appellants alighted and forced Marlene out of the tricycle. Felix Poblete pushed her as Carmelo Felix held her and Artemio Felix pulled her to the direction leading under the bridge. At that juncture, Pedro Soriano and a friend riding a tricycle came and Soriano saw Marlene waiving in an effort to stop their tricycle. Soriano, instead of coming to the rescue of Marlene, ordered the driver of the tricycle to speed on. Soriano proceeded to the police headquarters and reported the matter to the police. Immediately, Patrolmen Rogelio Aggabao, Renato Bañez and Arthur Plan went to the Bunton bridge.

In the meantime, Carmelo Felix and Artemio Felix had succeeded in pulling Marlene Donato, despite her resistance, below the Bunton bridge. Carmelo Felix pushed and boxed her and gave her a kick. She fell down and Carmelo Felix proceeded to take off her pantie. She resisted by kicking him but this was followed by a blow on her stomach which made her unconscious. After a while, she regained consciousness and saw Carmelo Felix already on top of her with his private parts inserted into hers. After Carmelo Felix had finished his beastly desire, Artemio Felix took his turn and succeeded in also having sexual intercourse with Marlene. All the while, Felix Poblete stayed above the bridge as guard.

Appellant Carmelo Felix and Artemio Felix then took Marlene to the water under the bridge up to the level where the water reached her navel. At that juncture, they heard a gunshot and this caused the two to run away. Patrolmen Aggabao, Bañez and Plan arrived and found the driver of the tricycle used by the appellants still at the bridge and when asked on ‘the whereabouts of his passengers, the tricycle driver pointed below the bridge. Patrolman Aggabao found Marlene crying. When asked what had happened to her, she informed him that she had been abused by Carmelo Felix and Artemio Felix. They helped Marlene out of the water and brought her to the Cagayan Provincial Hospital where she was examined by Dr. Teresita M. Reyes. Dr. Reyes issued the following medical certificate:jgc:chanrobles.com.ph

"This is to certify that I have attended to Miss Marlene Donato, 19 years old of Bayabat Durlung, Cagayan, on Oct. 14, 1977 for the following injuries sustained by her:chanrob1es virtual 1aw library

P.E. FINDINGS =

— No abrasions or erythema noted

— Presence of soil in the arms and feet, mostly in the elbow region.

Z. E. FINDINGS =

— Normal external genitalia

With erythema noted in the labia minora

— With incomplete hymenal laceration 4:00 o’clock

— Vagina admits 2 fingers with resistance

— Cervix closed

— Uterus not enlarged

— Adnexae negative

LABORATORY EXAM: = NO SPERM CELLS FOUND." (p. 173, Rollo)

While Marlene was still in the hospital, appellants Carmelo Felix and Felix Poblete were apprehended and brought before her. She promptly pointed to them as the perpetrators, together with Artemio Felix, of the rape committed against her. They were all taken to the police headquarters where they gave their respective statements.

Based on the complaint filed by Marlene Donato, two separate informations were filed with the then Circuit Criminal Court of Tuguegarao, Cagayan, docketed as CCC-I-506 and CCC-1-553, against Carmelo Felix y Ranada, Artemio Felix y Elpedes and Felix Poblete y Lumboy. After trial, the Circuit Criminal Court rendered a decision convicting accused Carmelo Felix and Artemio Felix as principals and sentencing each to suffer the penalty of reclusion perpetua, and convicting Felix Poblete as an accomplice and, being a minor, 16 years, 8 months and 18 days when the offense was committed, he was sentenced to suffer imprisonment of 4 years, 2 months and 1 day of prision correccional, as minimum, to 8 years and 1 day of prision mayor, as maximum. Further, in Criminal Case No. CCC-1-506, Carmelo Felix and Felix Poblete were ordered to pay, jointly and severally, Marlene Donato the amount of P10,000.00 as exemplary damages and P10,000.00 as moral damages, In Criminal Case No. CCC-I-553, Artemio Felix and Felix Poblete were ordered to pay, jointly and severally, Marlene Donato the amount of P10,000.00 as exemplary damages and P10,000.00 as moral damages, and all the three accused to pay the costs pro-rata.

Coming to this Court, the accused claim that the court a quo erred (1) in holding that the essential elements of the crime of rape described and penalized by Article 335 (1) of the Revised Penal Code, namely: carnal knowledge of a woman and with force and intimidation have been more than sufficiently established; and, (2) in finding accused-appellants Carmelo Felix and Artemio Felix guilty as principals and Felix Poblete as an accomplice of the crime of rape despite the failure of the prosecution to adduce evidence sufficient to establish their guilt beyond reasonable doubt.

In their defense, appellants contend that Carmelo Felix and Marlene Donato were sweethearts and they used to have sexual intercourse at different places at Tuguegarao, Cagayan long before October 14, 1977. Carmelo’s love for Marlene cooled off when he courted and won the love of Consima Calderon whom he eventually married on December 7, 1979.

The three appellants: Carmelo Felix, Artemio Felix and Felix Poblete were in the house of Consima Calderon on the night in question, October 14, 1977, at about 7:30 in the evening. Complainant Marlene Donato arrived and, after a while, she invited the three for a joy ride. They refused because they have no money hut then she offered to pay for it and finally they consented. They boarded a tricycle which brought them to Bunton bridge where Marlene invited Carmelo to go down under the bridge where they had been before. They embraced each other and made love. All the while, Artemio Felix and Felix Poblete had their curious eyes on them and were not able to control their laughter. At that juncture, they heard a gunshot and for fear of their lives, appellants scampered leaving Marlene in the dark.

Carmelo Felix and Artemio Felix denied having sexual intercourse with Marlene that night of October 14, 1977.

The defense submits that the crime of rape was not committed on the night in question, October 14, 1977, nor at any time before. They had carnal knowledge many times before that date but these were done with the consent of the complainant.

From the evidence presented by the prosecution and the defense, the trial court considered the People’s evidence sufficient to convict the accused, saying:jgc:chanrobles.com.ph

". . . this Court fixed its eyes on the manner Marlene related her story. She was a simple college student in a religious oriented school with pleasant looks, a male would want to look at her a second time with no discernable flair for the dramatic. She did not have the making of an actress who could at will shed tears to simulate grief. In the course, however, of her testimony when it came to the point when she narrated how Carmelo and Artemio succeeded to have sexual intercourse with her imposed on her by sheer brute force and strength, her eyes became uncontrollably misty with droplets of tears rolling down her cheeks, her vocal chord choked, indicating a silent message bolder, mightier and louder than words of the humiliation and indignity she was subjected to by Carmelo and Artemio. At one time, she even slapped Carmelo when asked to go down the witness stand to identify her abusers. She should have slapped the rest of the accused were it not for the timely intervention of this Court, held her on direct contempt and ordered to pay a fine. On this occasion it is understandable, women’s frail constitution made them to easily fall vulnerable to overpowering emotions and real hurt to their dignity and pride, and most of all to their womanhood. It is not to be understood that this Court could be swayed by a display of emotions, but only by the clarity, straight forwardness, logical sequences, natural and strongly convincing nature of the evidence given by Marlene, ever conscious of the injunctions in the rulings of the Supreme Court in the cases earlier herein cited: ‘. . . conviction for such crime (rape or other crime against chastity) should not be sustained without clear and convincing proof of the guilt of the accused.’ (People v. Cueto, supra) and ‘In rape cases, the complainant’s testimony should be subjected to a thorough scrutiny. The reason for this is that, crimes against chastity, by their very nature, usually involve two persons, the complainant and the offender. As a consequence, conviction or acquittal depends entirely on the credibility of the complainant’s testimony. Hence, the Court should examine with the greatest care the complainant’s story and subject it to thorough scrutiny to determine its veracity in the light of human nature’ (Lopez v. Court of Appeals, supra) and ‘insight into human experience’ (People v. Fausto, supra) and this Court is now ready to conclude the veracity of Marlene’s story. The principal defense of the accused in Marlene’s filing the case is her inordinate desire to force marriage on Carmelo in the light of having given herself wholly to him in the past and Carmelo’s feeling toward her cooling that he courted and won the love of Consima Calderon whom he won (and more than two years thereafter he actually married). The love affair between Marlene and Carmelo in spite of the fact that it lasted for more than a year as claimed by Carmelo and Poblete, is uncorroborated by other evidence except their own testimony, adding thereto Carmelo’s wife, Consima and Artemio’s all admittedly biased and prejudiced witnesses. The three accused, including Consima indirectly but is substantially affected by what would happen to Carmelo, are on the same boat, all sinking if their boats sink and all float if their boat maintain to float so to say. Could Carmelo be believed that in spite of being Marlene’s sweetheart for more than one year they both only engaged in strolling the streets for fresh air and indulging in sex never thinking or planning for their future claiming that he intended to marry Marlene when she answered favorably his offer of love, not even occurring to him to ask what course Marlene was taking in the St. Paul College so together they could adjust and adopt themselves to the future? Marlene on the witness stand answering questions with undisguised sincerity and truthfulness brings to focus what the Supreme Court said, ‘Testimonial evidence of the offended party in a rape case is always motivated by an honest desire to have the culprit apprehended and punished’ (People v. Francisquite, 56 SCRA 764) and ‘a witness is reliable when her answers are prompt, concise, responsive to interrogatories, outspoken and entirely devoid of evasion or any semblance of shuffling’ (People v. Francisco, 74 SCRA 158). This characterized Marlene on the witness stand. Women fashioned out of lesser stuff alight have kept their misfortunes to themselves, pretend virginity to entice swains to go after them in the matrimonial merry-go-round. However, Marlene is of the sterner type who is ‘unmindful of the loss she would incur, the notoriety of the case would reap for her, her honor or that of her family than in the redress she could possibly-demand’ (People v. Calamitin, L-16302, August 20, 1954).’No woman would willingly expose herself of the embarrassment of a public trial wherein she would have not only to admit but also to narrate the violation of her person if such, indeed, were not the case’ (People v. Caoile, 65 SCRA 24), considering the various factors, surprises, unforeseen circumstances and uncertainties of Court trials." (pp. 90-93, Rollo)

But then, appellants claim that Marlene was not subjected to any form of violence because "not a single (external) scratch, abrasion or redness was found in any part of her body." This contention is devoid of merit considering that the blow received by Marlene from Carmelo Felix hit her stomach which caused her to lose consciousness. It is of common knowledge that fist blows in the abdomen seldom, if ever, leave any external mark thereon. Dr. Reyes testified that the redness in the labia minora of Marlene Donato could have been caused by the insertion of a male organ into it and that complainant’s vagina "admits of two fingers with resistance." This only proves that she was a virgin at the time she was abused. She pleaded with Carmelo Felix to withdraw his organ from hers because of forced coition.

The fact that during the physical examination of Marlene no spermatozoa was found in her organ does not necessarily mean that she was not raped. Well settled is the rule that in rape the slightest penetration is sufficient to consummate the crime. The absence of spermatozoa inside the vagina of Marlene may be due to the fact that the same could have been washed away when she was pushed by appellants to the water up to her navel.

Appellants submit that upon hearing the shotgun, they scampered away for safety believing that it came from lawless elements. We cannot give credence to that. The fact is they knew they had done something wrong against the helpless Marlene whom they had left behind to hide from the authorities. For, if they really knew that it came from lawless elements, they would bring her along with them in their flight. They fled from the scene of the crime out of a feeling of guilt for what they had done to Marlene.

Finally, appellants assailed their extrajudicial confessions which they say is violative of Section 20, Article IV of the Constitution. Be that as it may, there is enough evidence to hold them guilty of the crime charged even if the said statements are disregarded. When Carmelo Felix and Felix Poblete were apprehended and brought before Marlene, the latter immediately pointed to them as her abusers.

WHEREFORE, the decision appealed from is AFFIRMED but modified in the sense that appellants are hereby ordered to pay, jointly and severally, Marlene Donato the sum of P15,000.00 as moral damages and P12,000.00 as indemnity in both informations. The award of exemplary damages is deleted in the absence of any aggravating circumstance.

SO ORDERED.

Teehankee, Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.

Melencio-Herrera, J., is on leave.

1. REMEDIAL LAW; EVIDENCE; PRIVILEGED COMMUNICATIONS; UTTERANCES IN THE COURSE OF JUDICIAL PROCEEDINGS, PRIVILEGED. — The doctrine of privileged communication that utterances made in the course of judicial proceedings, including all kinds of pleadings, petitions and motions, belong to the class of communications that are absolutely privileged has been expressed in a long line of cases (Cases cited in decision).

2. ID.; ID.; ID.; DOCTRINE RESTS UPON PUBLIC POLICY. — The doctrine of privileged communication rest upon public policy, which looks to the free and unfettered administration of justice, though, as an incidental result it may in some instances afford an immunity to the evil-disposed; and malignant slanderer (People v. Castelo, 4 SCRA 947). While the doctrine is liable to be abused, and its abuse may lead to give rise to greater hardships, yet to give legal action to such libel suits would give rise to greater hardships (Tolentino v. Baylosis, 1 SCRA 396). The privilege is not intended so much for the protection of those engaged in the public service and in the enactment administration of law, as for the promotion of public welfare, the purpose being that members of the legislature, judge of courts, jurors, lawyers, and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for the recovery of damages (Deles v. Aragona, Jr., 27 SCRA 633). Lawyers, most especially, should be allowed a great latitude of pertinent comment in the furtherance of the causes they uphold, and for the felicity of their clients, they may be pardoned some infelicities of language (Deles v. Aragona, supra).

3. ID.; ID.; ID.; EXCEPTION TO THE GENERAL RULE THAT EVERY DEFAMATORY IMPUTATION IS MALICIOUS. — The doctrine of privileged communication, moreover, is explicitly provided for in the Revised Penal Code, as an exception to the general principle that every defamatory imputation is presumed to be malicious, even if it is true, in the absence of "good intention" and "justifiable motive" (Elizalde v. Gutierrez, 76 SCRA 448).

4. ID.; ID.; ID.; QUALIFICATIONS. — This doctrine is not without qualification. Statements made in the course of judicial proceedings are absolutely privileged — that is, privileged regardless of defamatory tenor and of the presence of malice — if the same are relevant, pertinent, or material to the cause in hand or subject of inquiry (Tolentino v. Baylosis, supra). A pleading must meet the test of relevancy to avoid being considered libelous (Armovit v. Purisima. 118 SCRA 247).

5. ID.; ID.; ID.; ID.; DEGREE OF RELEVANCY, CONSTRUED LIBERALLY. — As to the degree of relevancy or pertinence necessary to make alleged defamatory matters privileged, the courts are inclined to be liberal (People v. Alvarez, 14 SCRA 901; Malit v. People, 114 SCRA 348). The matter to which the privilege does not extend must be so palpably wanting in relation to the subject matter of the controversy that no reasonable man can doubt its irrelevance and impropriety (Malit v. People, supra). In order that a matter alleged in a pleading may be privileged, it need not be in every case material to the issues presented by the pleadings. It must, however, be legitimately related thereto, or so pertinent to the subject of the controversy that it may become the subject of the inquiry in the course of the trial (Tolentino v. Baylosis, supra; People v. Alvarez, supra).

6. ID.; ID.; ID.; STATEMENTS MADE IN THE LEGITIMATE DEFENSE OF CLIENT’S INTEREST, PRIVILEGED; CASE AT BAR. — Applying the liberal rule to the case at bar and considering the incidents which preceded it, we find appellee’s alleged slanderous statements pertinent to the motion to cite appellant Ceniza in contempt. Although the language used by defendant-appellee in the pleading in question was undoubtedly strong, since it was made in legitimate defense of his own and of his client’s interest, such remarks must be deemed absolutely privileged and cannot be the basis of an action for libel (Tolentino v. Baylosis, supra).

7. LEGAL AND JUDICIAL ETHICS; ATTORNEYS; MEMBERS OF THE BAR SHOULD REFRAIN FROM MUTUAL BICKERINGS BETWEEN BROTHER ATTORNEYS. — Although it is understandable, if not justifiable, that, at times, zeal in the defense of one’s client may be carried to a point of undue skeptism and doubts as to the motives of opposing counsel, the spectacle presented by two members of the bar engaged in bickering and recrimination is far from edifying (Narido v. Linsangan, 58 SCRA 85). Mutual bickerings and recriminations between brother attorneys detract from the dignity of the legal profession and will not receive any sympathy from this Court (Javier v. Cornejo, 63 Phil. 293).

8. ID.; ID.; ID.; PERSONALITIES BETWEEN COUNSEL SHOULD BE AVOIDED. — Clients, not lawyers, are litigants. Whatever may be the ill-feeling existing between clients, it should not be allowed to influence counsel in their conduct and demeanor toward each other or toward suitors in the case. All personalities between counsel should be scrupulously avoided. In the trial of a case it is indecent to allude to the personal history or the personal peculiarities and idiosyncracies of counsel on the other side. Personal colloquies between counsel which cause delay and promote the unseemly wrangling should also be carefully avoided (Cannon 17, Cannons of Professional Ethics). Lawyers owe respect not only to the courts and their clients, but also to other members of the Bar.

9. ID.; ID.; ID.; LAWYER’S LANGUAGE SHOULD BE DIGNIFIED. — In keeping with the dignity of the legal profession, a lawyer’s language shall likewise be dignified (In re Climaco, 55 SCRA 107, 121). Choice of language is a very important requirement in the preparation of pleadings (Rule 8, Sec. 1; Rule 9 Sec. 5, Revised Rules of Court). Appropriately, in the assertion of their client’s rights, lawyers — even those gifted with superior intellect — are enjoined to rein up their tempers. Greater care and circumspection must be exercised in the preparation of their pleadings and to refrain from using abrasive and offensive language (Yangson v. Saladanan, 68 SCRA 42). A becoming modesty is a desirable trait also of practising attorneys (Festin v. Faderanga, 111 SCRA 1).

10. CONSTITUTIONAL LAW; SUPREME COURT; AUTHORITY TO DISCIPLINE LAWYERS, INCLUDED IN THE PREROGATIVE TO REGULATE THE PRACTICE OF LAW AND THE ADMISSION TO THE BAR. — Time and again we have rebuked and punished lawyers for conduct showing them unfit to practice law. The Supreme Court as guardian of the legal profession has ultimate powers over attorneys. Its authority to discipline lawyers stems from its constitutional prerogative to regulate the practice of law and the admission of persons to engage therein (Section 5 [5], Article X, The 1973 Philippine Constitution; In Re Cunanan 94 Phil. 534, 1954). Apart from the constitutional mandate, the disciplinary authority of the Supreme Court over attorneys is an inherent power incidental to its proper administration of justice and essential to an orderly discharge of its judicial functions (Tejan v. Cusi, 57 SCRA 154; In Re Almacen, 31 SCRA 562; Hilado v. David, 84 Phil. 573; In the Matter of the IBP Membership Dues Delinquency of Edillon, G.R. No. AC-1928 [IBP Adm. Case No. DD-1] August 3, 1978). Furthermore, attorneys are the court’s constituency — to aid in the administration of justice (Doge S. State, 39 NE 745). A lawyer occupies what may be termed a quasi-judicial office since he is in fact an officer of the court, and like the court itself, an instrument or agency to advance the ends of justice (Kerlin v. Culkin, 60 ALR 851). Thus, only those complying with the strict standards of legal practice are maintained in the roll of attorneys and those falling short thereof may be disbarred.

R E S O L U T I O N

This appeal from an order quashing an information furnishes occasion to reiterate the ambits of the well-established doctrine of privileged communications. The appeal was certified to us by the Court of Appeals on a finding that it involves a pure question of law.

In an Information filed on March 4, 1981, the City Fiscal’s Office of Cebu City accused Atty. Raul H. Sesbreno of the crime of libel based on alleged defamatory statements found in a pleading entitled "PLAINTIFF’S REPLY TO DEFENDANTS OPPOSITION DATED MARCH 9TH" dated March 11, 1980 filed in Civil Case No. R-18181 entitled "HEIRS OF ROBERTO CENIZA, ET AL. V. DANIELA CENIZA UROT" now pending litigation before Branch IV of the Court of First Instance of Cebu, 14th Judicial District.

On March 5, 1981, the accused filed a MOTION TO QUASH INFORMATION. The main thrust of the motion is that on the face itself of the information, it is obvious that the allegedly libelous statements imputing that Atty. Ramon B. Ceniza is an irresponsible person, cannot be trusted, like Judas, a liar and irresponsible childish prankster are contained in a pleading filed in court and, therefore, covered by the DOCTRINE OF ABSOLUTELY PRIVILEGED COMMUNICATIONS; hence, no civil or criminal liability can arise therefrom.

A decision was rendered by the court a quo quashing the information and dismissing the case for lack of cause of action. On appeal, the Court of Appeals certified the same to us.

The doctrine of privileged communication that utterances made in the course of judicial proceedings, including all kinds of pleadings, petitions and motions, belong to the class of communications that are absolutely privileged has been expressed in a long line of cases (Us v. Salera, 32 Phil. 365; Us v. Bustos, 37 Phil. 732; Giler v. Hilliard, 43 Phil. 180; Santiago v. Calvo, 47 Phil. 919; People v. Flores, G.R. No. 7528, Dec. 18, 1957; Tupas v. Parreño, 105 Phil. 1304; Unrep., April 30, 1959; Smith Bell and Co. v. Ellis, 48 Phil. 475; People v. Valerio Andres, 107 Phil. 1046; Sison v. David, 1 SCRA 60; Tolentino v. Baylosis, 1 SCRA 396; People v. Aquino, 18 SCRA 555; Cuenco v. Cuenco, 70 SCRA 235; Elizalde v. Gutierrez, 76 SCRA 448; PCIB v. Philnabank Employees’ Association, July 2, 1981, 105 SCRA 314). The doctrine of privileged communication rests upon public policy, which looks to the free and unfettered administration of justice, though, as an incidental result it may in some instances afford an immunity to the evil disposed and malignant slanderer (People v. Castelo, 4 SCRA 947). While the doctrine is liable to be abused, and its abuse may lead to great hardships, yet to give legal action to such libel suits would give rise to greater hardships. (Tolentino v. Baylosis, supra). The privilege is not intended so much for the protection of those engaged in the public service and in the enactment and administration of law, as for the promotion of the public welfare, the purpose being that members of the legislature, judges of courts, jurors, lawyers, and witnesses may speak their minds freely and exercise their respective functions without incurring the risk of a criminal prosecution or an action for the recovery of damages (Deles v. Aragona, Jr., 27 SCRA 633). Lawyers, most especially, should be allowed a great latitude of pertinent comment in the furtherance of the causes they uphold, and for the felicity of their clients, they may be pardoned some infelicities of language (Deles v. Aragona, supra).

The doctrine of privileged communication, moreover, is explicitly provided for in the Revised Penal Code, as an exception to the general principle that every defamatory imputation is presumed to be malicious, even if it is true, in the absence of "good intention" and "justifiable motive" (Elizalde v. Gutierrez, supra).

However, this doctrine is not without qualification. Statements made in the course of judicial proceedings are absolutely privileged — that is, privileged regardless of defamatory tenor and of the presence of malice — if the same are relevant, pertinent, or material to the cause in hand or subject of inquiry (Tolentino v. Baylosis, supra; People v. Alvarez, 14 SCRA 901; People v. Aquino, 18 SCRA 555). A pleading must meet the test of relevancy to avoid being considered libelous (Armovit v. Purisima, 118 SCRA 247).

As to the degree of relevancy or pertinency necessary to make alleged defamatory matters privileged, the courts are inclined to be liberal (People v. Alvarez, supra, Malit v. People, 114 SCRA 348). The matter to which the privilege does not extend must be so palpably wanting in relation to the subject matter of the controversy that no reasonable man can doubt its irrelevance and impropriety (Malit v. People, supra). In order that a matter alleged in a pleading may be privileged, it need not be in every case material to the issues presented by the pleadings. It must, however, be legitimately related thereto, or so pertinent to the subject of the controversy that it may become the subject of the inquiry in the course of the trial (Tolentino v. Baylosis, supra; People v. Alvarez, supra).

It appears that in connection with the initial formal hearing of Civil Case No. R-18181 on February 7, 1980, appellant Atty. Ceniza as counsel for the defendant, filed an Urgent Motion to Transfer Hearing, receipt of notice of which was denied by herein appellee Atty. Sesbreno, counsel for the plaintiff. Upon the latter’s representation, the court a quo granted the motion for postponement, ordering Atty. Ceniza, however, to reimburse Atty. Sesbreno’s clients for expenses incurred in attending the supposed hearing slated that day. A motion for reconsideration was filed by Atty. Ceniza showing evidence of receipt of notice of hearing by Atty. Sesbreno’s office. The same was granted. The court ordered Atty. Sesbreno to show cause why he should not be declared in contempt for misrepresentation. Against said order, Atty. Sesbreno filed a motion seeking reconsideration with a counter-motion for contempt against the appellant for reneging on his commitment to reimburse appellee’s clients and for resorting to dilatory tactics. To that, Atty. Ceniza, filed his "Opposition to Motion for Reconsideration, Etc." charging Sesbreno with misrepresentation, prevarication, and "telling a barefaced and documented lie." Replying to these remarks, Sesbreno then filed his "REPLY" subject matter of Ceniza’s libel suit.

Applying the liberal rule to the case at bar and considering the incidents which preceded it, we find appellee’s alleged slanderous statements pertinent to the motion to cite appellant Ceniza in contempt. Although the language used by defendant-appellee in the pleading in question was undoubtedly strong, since it was made in legitimate defense of his own and of his client’s interest, such remarks must be deemed absolutely privileged and cannot be the basis of an action for libel (Tolentino v. Baylosis, supra).

However, although it is understandable, if not justifiable, that, at times, zeal in the defense of one’s client may be carried to the point of undue skepticism and doubts as to the motives of opposing counsel, the spectacle presented by two members of the bar engaged in bickering and recrimination is far from edifying (Narido v. Linsangan, 58 SCRA 85). Mutual bickerings and recriminations between brother attorneys detract from the dignity of the legal profession and will not receive any sympathy from this Court (Javier v. Cornejo, 63 Phil. 293).

Clients, not lawyers, are the litigants. Whatever may be the ill-feeling existing between clients, it should not be allowed to influence counsel in their conduct and demeanor toward each other or toward suitors in the case. All personalities between counsel should be scrupulously avoided. In the trial of a case it is indecent to allude to the personal history or the personal peculiarities and idiosyncracies of counsel on the other side. Personal colloquies between counsel which cause delay and promote unseemly wrangling should also be carefully avoided (Canon 17, Canons of Professional Ethics). Lawyers owe respect not only to the courts and their clients, but also to other members of the Bar.

In keeping with the dignity of the legal profession, a lawyer’s language should likewise be dignified (In re Climaco, 55 SCRA 107, 121). Choice of language is a important requirement in the preparation of pleadings (Rule 8, Sec. 1; Rule 9, Sec. 5; Rule 7, Sec. 5, Revised Rules of Court). Appropriately, in the assertion of their client’s rights, lawyers — even those gifted with superior intellect — are enjoined to rein up their tempers. Greater care and circumspection must be exercised in the preparation of their pleadings and to refrain from using abrasive and offensive language (Yangson v. Saladanan, 68 SCRA 42). A becoming modesty is a desirable trait also of practising attorneys (Festin v. Faderanga, 111 SCRA 1).

Time and again we have rebuked and punished lawyers for conduct showing them unfit to practice law. The Supreme Court as guardian of the legal profession has ultimate powers over attorneys. Its authority to discipline lawyers stems from its constitutional prerogative to regulate the practice of law and the admission of the persons to engage therein (Section 5(5), Article X, The 1973 Philippine Constitution; In Re Cunanan, 94 Phil. 534, 1954). Apart from the constitutional mandate, the disciplinary authority of the Supreme Court over attorneys is an inherent power incidental to its proper administration of justice and essential to an orderly discharge of its judicial functions (Tejan v. Cusi, 57 SCRA 154; In Re Almacen, 31 SCRA 562; Hilado v. David, 84 Phil. 573; In the Matter of the IBP Membership Dues Delinquency of Edillon, G.R. No. AC-1928 [IBP Adm. Case No. DD-1] August 3, 1978). Furthermore, attorneys are the court’s constituency - to aid in the administration of justice (Doge S. State, 39 NE 745). A lawyer occupies what may be termed a quasi-judicial office since he is in fact an officer of the court, and like the court itself, an instrument or agency to advance the ends of justice (Kerlin v. Culkin, 60 ALR 851). Thus, only those complying with the strict standards of legal practice are maintained in the roll of attorneys and those falling short thereof may be disbarred.

Thus, both attorneys are advised accordingly.

WHEREFORE, the order appealed from is hereby AFFIRMED. Atty. Raul Sesbreno is reprimanded and admonished to refrain from employing language unbecoming of a member of the Bar and to extend courtesy and respect to his brothers in the profession with a warning that any future infraction of a nature similar to that found in this case shall be dealt with more severely.

SO ORDERED.

Teehankee, Plana, Relova and De la Fuente, JJ., concur.

Melencio-Herrera, J., is on official leave.

1. STATUTORY CONSTRUCTION; TITLES GIVEN TO SECTIONS OF AN ACT OR CONTRACT RESORTED TO IN DETERMINING SCOPE OF PROVISIONS AND RELATIONS TO OTHER PORTIONS OF THE ACT; PROVISION IN COLLECTIVE BARGAINING AGREEMENT GRANTING HOSPITALIZATION AND MEDICAL CARE BENEFITS WITH NO QUALIFICATION AS TO CAUSE OF CONFINEMENT, HELD TO INCLUDE HOSPITALIZATION DUE TO PREGNANCY OR CHILDBIRTH. — The provisions of the CBA in question are clear and from them we gather the intent of the contracting parties. The very title of Article XI alone provides us with an answer to the first issue raised. Borrowing a principle of statutory construction, it is well-established that titles given to sections of an act or contract are often resorted to for the purpose of determining the scope of the provisions and their relation to other portions of the act (Francisco, Statutory Construction, Second Edition, pp. 186-187). In very general terms, Section I, Article XI provides hospitalization and medical care benefits. From the language of the Article in question, no qualification as to cause of confinement or need of medical care is made. The contention that pregnancy or childbirth is not sickness per se so as to be reimburseable under the CBA is untenable. Article XI neither states nor implies that its provisions apply only to sickness. In fact, it speaks of "illness or disablement," for one may be hospitalized not only for treatment of disease but also for injury disability or incapacity.

2. ID.; REASONABLE AND PRACTICAL INTERPRETATION MUST BE PLACED ON CONTRACTUAL PROVISIONS; SURGICAL FEES INTERPRETED TO INCLUDE EXPENSES FOR CAESARIAN OPERATIONS. — The disputed CBA provision states that the "Company will meet expenses up to P9,000 per calendar year for ward expenses and surgical fees in respect of each employee . . .," Undoubtedly, the hospitalization expenses of petitioner for caesarian operation ate covered by the very wordings of the provision, as it involves surgery. To adopt respondent’s strained interpretation would be to create an absurd situation whereby an employee may no longer avail of the benefits under Article XI when one is on vacation, sick or compassionate leave, which are also separately granted in the same way that maternity leave benefits are provided as distinct privileges. Such a construction would, of course, be absurd, and yet the respondents would apply it to another form of leave. Reasonable and practical interpretation must be placed on contractual provisions. Interpretacio fienda est ut res magis valeat quam pereat. Such interpretation is to be adopted, that the thing may continue to have efficacy rather than fail (Martin v. Sheppard, 102 S Co. 2nd p. 1036; Admonski v. Bord, AC, Pa. 193F 2ed p. 578; Shimonek v. Tillanan 1 P. 2d 154; Almeda v. Florentino, G.R. No. L-23800, Dec. 21, 1965).

3. ID.; PRINCIPLE OF EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS; PREGNANCY CHILDBIRTH NOT AMONG THOSE EXPRESSLY EXCEPTED; CASE AT BAR. — Under the CBA in this case, exceptions are specifically provided. The disputed contingency of surgery and hospitalization does not come under the exceptions provided by Section 3 of Article XI which enumerates specific instances to wit: "illness and disablement" arising from illegal, immoral, wrongful, negligent, aggressive, or similar acts. None of these specify nor even remotely imply pregnancy or childbirth. Had it been their purpose to exclude, then SIA should have expressly excluded the two as it did in the CBA with its employees in Singapore. Not being so excepted, hospital and medical care benefits due to pregnancy or childbirth are reimbursable under the general rule set by Article XI. Expressio unius est exclusio alterius. (In re Estate of Enriquez, 29 Phil. 167; Gomez v. Ventura, 54 Phil. 726; Managat Et. Al. v. Aquino Et. Al., 92 Phil. 1025). Anything that is not included in an enumeration is excluded therefrom and a meaning that does not appear nor is intended or reflected in the very language of the statute cannot be placed therein.

4. CIVIL LAW; OBLIGATIONS AND CONTRACTS; COLLECTIVE BARGAINING AGREEMENT, LAW BETWEEN THE PARTIES. — We cannot restrict the application of Article XI by correlating it with another separate and independent Article on Maternity Leave. The parties have provided for a separability clause under Article XVIII of the CBA. They agreed that one article of the CBA cannot have a restrictive effect upon the meaning of another article. As a bilateral act and a result of long deliberation and dialogue between the parties, the CBA is the law between the parties (Kapisanan ng mga Mangagawa sa La Suerte-FOITAP v. Noriel, 77 SCRA 414, Philippine Apparel Workers’ Union v. NLRC, 106 SCRA 444). Having the force of law between the parties, obligations arising therefrom should be complied with in good faith (De Cortes v. SCRA 709).

5. LABOR AND SOCIAL LEGISLATIONS; LABOR CODE; LABOR RELATIONS; COLLECTIVE BARGAINING AGREEMENT; ERROR IN INTERPRETATION OF CBA WITHOUT MALICE OR BAD FAITH DOES NOT CONSTITUTE UNFAIR LABOR PRACTICE. — Despite a finding of petitioner’s entitlement to her claim for reimbursement, we are not prepared to pronounce respondent SIA guilty of unfair labor practice. SIA’s refusal to grant benefits was not willful evasion of its obligations under the CBA but was due to an honest mistake in the belief that the same is not covered by the aforementioned CBA provision. An error in interpretation without malice or bad faith does not constitute unfair labor practice. We take judicial notice of the fact that honest differences in construction may arise in the actual application of contractual provisions.

This is a petition for certiorari to review the decision of respondent National Labor Relations Commission (NLRC) dated March 31, 1982, dismissing the petitioner’s appeal and affirming in toto the Labor Arbiter’s decision to wit:chanrob1es virtual 1aw library



". . . Suffice it for us to state that the only provision in the CBA granting maternity benefits is Article X of the said CBA. And it only grants maternity leave benefits of 45 days. Really, if the intention of the parties is for the company to undertake the expenses incurred by way of caesarian or even natural child birth, they could have easily provided it so in Article X of the CBA. Complainants are aware or should have been aware of this claimed benefit from the CBA since they are participants to the contract. Yet, they did not do anything about it during the negotiation and conclusion of the CBA. For us therefore to interpret the provision of Article X beyond its simple and precise meaning would certainly be sheer abuse of discretion on our part."cralaw virtua1aw library

Singapore Airlines Limited is a foreign corporation duly licensed to engage in the business of common carrier in the Philippines.

Petitioner, Cecilia E. Matriano, on the other hand, is employed by Singapore Airlines Limited (hereinafter referred to as SIA) as a telephone operator/receptionist.

On July 25, 1981, a Collective Bargaining Agreement (CBA) was concluded between the complainant Singapore Airlines Local Employees-NTUAI-TRANSPIL-TUPAS (of which petitioner Matriano is a member) and respondent Singapore Airlines Limited. The CBA provides among other things:jgc:chanrobles.com.ph

"ARTICLE XI — Hospitalization, Medical Care Benefits.

"Section 1. The COMPANY will meet expenses up to P9,000.00 per calendar year for ward charges and surgical fees in respect of each employee except as provided in Section 3 . . .



"Section 3. The company shall not bear any expenses arising from any of the following:jgc:chanrobles.com.ph

"(a) illness or disablement arising from attempted suicide the performance of any unlawful act, exposure to any unjustifiable hazards except when endeavoring to save human life, provoked assault, the use of drugs other than those prescribed by the COMPANY’s doctors or other duly qualified and registered medical practitioner or any breach of the peace or disorderly conduct;

"(b) where hospitalization is necessary as a result of misconduct or negligence on the part of the employee."cralaw virtua1aw library

In June 1981, petitioner Matriano underwent a caesarian operation for which expenses were incurred amounting to P6,393.70 representing hospital, medical, and surgical fees. Thereafter, Matriano filed a claim with SIA for reimbursement of said expenses pursuant to Article XI of the CBA aforequoted. Respondent SIA refused, contending that Matriano is not entitled to hospitalization and medical benefits under Article XI as its liability in maternity cases is limited to the maternity leave benefit provided in Article X of the CBA, which provides."

"ARTICLE X — Maternity Leave Benefits

"The COMPANY will grant maternity leave benefits of forty-five (45) days pursuant to PD 1202."cralaw virtua1aw library



It is further contended that Article XI which, except for the amount of benefit, has been lifted from Paragraph 13 of the "Conditions for Employment for Locally Engaged Staff in the Philippines" which was adopted in toto, should receive the same interpretation as the latter, traditionally understood to exclude maternity cases, the benefits for the same being specifically provided for under Article X of the CBA in question.

On the other hand, petitioners are of the considered view that the liability of SIA regarding maternity leaves, under Article X, is separate and distinct from the hospitalization benefits provided under Article XI. As expressly agreed upon in Article XVIII of the CBA, "Each article in this agreement is separate and independent from the others and not to be construed as having to have restrictive effect upon the meaning of the other." (page 30 of the CBA). They also contend that maternity cases, more specifically caesarian operations are not among those mentioned as exceptions to Article X or these would have been so provided, if such was the intent.

Hence, upon SIA’s refusal to grant the complainant’s claim, the Singapore Airlines Employees’ Association, in behalf of individual complainant Matriano, charged SIA before Labor Arbiter Sofronio Ona with unfair labor practice for violation of the CBA.

The Labor Arbiter dismissed the case, stating that pregnancy cannot be considered as sickness per se to entitle an employee to the hospitalization benefits under Article XI of the CBA.

On appeal, the NLRC sustained the Labor Arbiter’s decision, finding no basis for the charge of unfair labor practice. Hence, this petition.

Two main issues are to be resolved, to wit:chanrob1es virtual 1aw library

(a) Whether or not under the CBA petitioner Matriano is entitled to reimbursement of her hospitalization expenses as a result of her caesarian operation; and

(b) Whether or not respondents are guilty of unfair labor practice.

We find no difficulty in disposing of the matter at hand. The provisions of the CBA in question are clear and from them we gather the intent of the contracting parties.

The very title of Article XI alone provides us with an answer to the first issue raised. Borrowing a principle of statutory construction, it is well-established that titles given to sections of an act or contract are often resorted to for the purpose of determining the scope of the provisions and their relation to other portions of the act (Francisco, Statutory Construction, Second Edition, pp. 186-187). In very general terms, Section I, Article XI provides hospitalization and medical care benefits. From the language of the Article in question, no qualification as to cause of confinement or need of medical care is made. The contention that pregnancy or childbirth is not sickness per se so as to be reimbursable under the CBA is untenable. Article XI neither states nor implies that its provisions apply only to sickness. In fact, it speaks of "illness or disablement", for one may be hospitalized not only for treatment of disease but also for injury, disability or incapacity.

The disputed CBA provision states that the "Company will meet expenses up to P9,000 per calendar year for ward expenses and surgical fees in respect of each employee . . ." Undoubtedly, the hospitalization expenses of petitioner for her caesarian operation are covered by the very wordings of the provision, as it involves surgery. To adopt respondent’s strained interpretation would be to create an absurd situation whereby an employee may no longer avail of the benefits under Article XI when one is on vacation, sick, or compassionate leave, which are also separated granted in the same way that maternity leave benefits are provided as distinct privileges. Such a construction would, of course, be absurd, and yet the respondents would apply it to another form of leave. Reasonable and practical interpretation must be placed on contractual provisions. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be adopted, that the thing may continue to have efficacy rather than fail. (Martin v. Sheppard, 102 S Co. 2nd p. 1036; Adamonski v. Bord, AC Pa. 193F 2d p. 578; Shimonek v. Tillanan 1 P. 2d 154; Almeda v. Florentino, G.R. No. L-23800, Dec. 21, 1965).

Sick leave, maternity leave, and vacation leave benefits are intended to be replacements for regular income which otherwise would not be earned because an employee is not working during the period of said leaves. If an employee is on leave for 100 days, he gets his salary for 100 days without having to work during those days. There is absolutely no connection between the expenditures for sickness, childbirth, or vacation trips and the amount of sick leave, maternity leave, or vacation leave benefits. Thus, if a company grants sick leave or full pay during the period when an employee is sick and at the same time grants hospital or medical expenses incurred as a result of the sickness, there is no incongruity or conflict between the two types of privileges — one is sick leave while the other is medical benefits. In the same manner, there is no conflict between maternity leave benefits which are nothing else but full salaries for 45 days in this case and the hospitalization and surgical benefits for expenses incurred during the same period for hospitalization and surgery.

By analogy, qualified workers in the private sector are given sickness benefits under the Social Security Act, as amended, as well as medicare benefits under the Medicare provisions of the Labor Code. Sickness benefits are intended to replace, even if only partially, lost income during the period of sickness while medicare benefits partially defray the cost of hospitalization and surgical care. One benefit does not exclude the other.

The above conclusion is bolstered by the fact that under the CBA in this case, exceptions are specifically provided. The disputed contingency of surgery and hospitalization does not come under the exceptions provided by Section 3 of Article XI which enumerates specific instances to wit: "illness and disablement" arising from illegal, immoral, wrongful, negligent, aggressive, or similar acts. None of these specify nor even remotely imply pregnancy or childbirth. Had it been their purpose to exclude, then SIA should have expressly excluded the two as it did in the CBA with its employees in Singapore. Not being so excepted, hospital and medical care benefits due to pregnancy or childbirth are reimbursable under the general rule set by Article XI. Expressio unius est exclusio alterius (In re Estate of Enriquez, 29 Phil. 167; Gomez v. Ventura, 54 Phil. 726; Managat Et. Al. v. Aquino, et al, 92 Phil. 1025). Anything that is not included in an enumeration is excluded therefrom, and a meaning that does not appear nor is intended or reflected in the very language of the statute cannot be placed therein.

Moreover, we cannot restrict the application of Article XI by correlating it with another separate and independent Article on Maternity Leave. The parties have provided for a separability clause under Article XVIII of the CBA. They agreed that one article of the CBA cannot have a restrictive effect upon the meaning of another article.

Respondents also advance the argument that since the CBA in question was lifted, almost verbatim, from the "Conditions of Employment for Locally Engaged Staff in the Philippines", it should likewise be interpreted as excluding maternity hospitalization and medical care benefits. We do not agree. Petitioner’s reasons are well taken and we quote:jgc:chanrobles.com.ph

"We beg to disagree. Firstly, Article XI provided for non-hospitalization medical care and dental benefits (Sections 4 and 5) which were not in the ‘Conditions of Employment’. Secondly, since the said policy was unilaterally promulgated by SIA, its implementation was solely within the prerogative of SIA and the employees could not do anything even if SIA did not fully implement it by refusing to extend hospitalization and medical care benefits to its employees who were hospitalized because of childbirth. However, once the policy was incorporated in a collective bargaining agreement, the employees thru their Union have as much right as the Company in its proper implementation."cralaw virtua1aw library

As a bilateral act and a result of long deliberation and dialogue between the parties, the CBA is law between the parties (Kapisanan ng mga Manggagawa sa La Suerte-FOITAF v. Noriel, 77 SCRA 414; Batangas-Laguna Tayabas Bus Company v. Court of Appeals, 71 SCRA 470; Philippine Apparel Workers’ Union v. NLRC, 106 SCRA 444). Having the force of law between the parties, obligations arising therefrom should be complied with in good faith (De Cortes v. Venturanza, 79 SCRA 709).

Parenthetically, the Solicitor General, as counsel for the public respondent agrees that this petition is impressed with merit and states:jgc:chanrobles.com.ph

"Whether child birth is an illness or not is immaterial. Article XI of the CBA does not make a distinction. The only exceptions where hospitalization benefits may not be availed of are those enumerated in Section 3 of the same Article XI, relating to attempted suicide, use of drugs and those arising from employees misconduct. Child birth not being one of the excepted causes, it is therefore, included in its coverage."cralaw virtua1aw library



"Finally, to exclude hospitalization expenses for child delivery from the coverage of the said CBA provision would be a strained application that favors the employer, negates the labor protection clause in the Constitution and runs counter to the pronouncement of this Honorable Court that the construction of labor legislation and labor contracts should be in favor of safety and decent living of the laborer (PALEA v. PAL, 70 SCRA 214; Insular Lumber Co. v. C.A., 80 SCRA 28; Phil. Apparel Workers’ Union v. NLRC, 106 SCRA 444)."cralaw virtua1aw library

Despite a finding of petitioner’s entitlement to her claim for reimbursement, we are not prepared to pronounce respondent SIA guilty of unfair labor practice. SIA’s refusal to grant benefits was not a willful evasion of its obligations under the CBA but was due to an honest mistake in the belief that the same is not covered by the aforementioned CBA provision. An error in interpretation without malice or bad faith does not constitute unfair labor practice. We take judicial notice of the fact that honest differences in construction may arise in the actual application of contractual provisions.

WHEREFORE, the decision of the respondent Commission is hereby MODIFIED. The petition is granted insofar as petitioners’ claim for reimbursement is concerned. Private respondent Singapore Airlines Limited is ordered to refund petitioner Cecilia Matriano the amount of SIX THOUSAND THREE HUNDRED NINETY THREE PESOS and SEVENTY CENTAVOS (P6,393.70) representing hospital, medical and surgical expenses which the latter had incurred during her pregnancy and childbirth. The respondent Commission’s finding that no unfair labor practice was committed is AFFIRMED.

SO ORDERED.

Teehankee, Plana, Relova and De la Fuente, JJ., concur.

Melencio-Herrera, J., is on official leave.

1. LABOR AND SOCIAL LEGISLATIONS; AGRARIAN REFORM; TENANCY RELATIONSHIP; REQUISITES. — The essential requisites of tenancy relationship are: 1) the parties are the landholder and the tenant; 2) the subject is agricultural land; 3) there is consent; 4) the purpose is agricultural production; and 5) there is consideration (Agustin, Code of Agrarian Reforms of the Philippines, 1981, p. 19).

2. ID.; ID.; ID.; PLANTING OF RICE OR CORN ON RESIDENTIAL LOT CANNOT CONVERT IT INTO AGRICULTURAL LAND. — Whatever "visions" the owners may have had in 1946, the fact remains that the land has always been officially classified as "residential" since 1948. The areas surrounding the disputed six hectares are now dotted with residences and, apparently, only this case has kept the property in question from being developed together with the rest of the lot to which it belongs. The fact that a caretaker plants rice or corn on a residential lot in the middle of a residential subdivision in the heart of a metropolitan area cannot by any strained interpretation of law convert it into agricultural land and subject it to the agrarian reform program.

3. ID.; ID.; ID.; ABSENCE OF AGREEMENT AS TO CONTRIBUTIONS OF ITEMS OF PRODUCTION NEGATES EXISTENCE THEREOF. — As defined under Section 5(a) and (b) of Republic Act No. 1199 as amended, Macaya may not be considered a tenant and Manotok as a landholder. Significant, as the trial court noted, is that the parties have not agreed as to their contributions of the several items of productions such as expenses for transplanting, fertilizers, weeding and application of insecticides, etc. It should also be noted that from 1967 to the present, Macaya did not deliver any cavans of palay to the petitioners as the latter felt that if Macaya could no longer deliver the twenty (20) cavans of palay, he might as well not deliver any. The decision of the petitioners not to ask for anymore contributions from Macaya reveals that there was no tenancy relationship ever agreed upon by the parties. Neither can such relationship be implied from the facts as there was no agreed system of sharing the produce of the property.

4. ID.; ID.; ID.; ABSENCE OF AGREEMENT AS TO SYSTEM OF SHARING OF PRODUCE NEGATES EXISTENCE THEREOF. — The last requisite is consideration. This is the produce to be divided between the landholder and tenant in proportion to their respective contributions. We agree with the trial court that this was also absent. It bears reemphasizing that from 1946 to 1956, there was no agreement as to any system of sharing the produce of the land. The petitioners did not get anything from the harvest and private respondent Macaya was using and cultivating the land free from any charge or expense. The situation was rather strange had there been a tenancy agreement between Don Severino and Macaya. From 1957 to 1964, Macaya was requested to contribute (10) cavans a year for the payment of the realty taxes. The receipts of these contributions are evidenced by exhibits which clearly show that the payment of the cavans of palay was Macaya’s contribution for the payment of the real estate taxes; that the nature of the work of Macaya is that of a watchman or guard (bantay); and, that the services of Macaya as such watchman or guard (bantay) shall continue until the property shall be converted into a subdivision for residential purposes.

5. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT OF THE APPELLATE COURT BINDING ON APPEAL; CASE AT BAR, AN EXCEPTION. — After painstakingly going over the records of the case, we find no valid and cogent reason which justifies the appellate court’s deviation from the findings and conclusions of the lower court. It is quite clear from the 44-page decision of the trial court, that the latter has taken extra care and effort in weighing the evidence of both parties of the case. We find the conclusions of the respondent appellate court to be speculative and conjectural. The respondent appellate court disregarded the receipts as self-serving. While it is true that the receipts were prepared by petitioner Perpetua M. Bocanegra, Macaya nevertheless signed them voluntarily. Besides the receipts were written in the vernacular and do not require knowledge of the law to fully gasp their implications. Furthermore, the conclusion of the respondent appellate court to the effect that the receipts having been prepared by one of the petitioners who happens to be a lawyer must have been so worded so as to conceal the real import of the transaction is highly speculative. There was nothing to conceal in the first place since the primary objective of the petitioners in allowing Macaya to live on the property was for security purposes. The presence of Macaya would serve to protect the property from squatters. In return, the request of Macaya to raise food on the property and cultivate a three-hectare portion while it was not being developed for housing purposes was granted.

In this petition for review on certiorari of the decision of the Court of Appeals declaring the existence of a landholder-tenant relationship and ordering the private respondent’s reinstatement, the petitioners contend that the appellate court committed an error of law in:chanrob1es virtual 1aw library

1. Disregarding the findings of fact of the Court of Agrarian Relations which are supported by substantial evidence; and

2. Substituting the findings of fact of the Court of Agrarian Relations with its own findings.

Briefly, the facts of the case as found by the Court of Agrarian Relations, Seventh Regional District, Branch 1 at Pasig, Metro Manila are as follows: Sometime in 1946, the late Severino Manotok donated and transferred to his eight (8) children and two (2) grandchildren namely: Purificacion Manotok, Eliza Manotok, Perpetua Manotok, Filomena Manotok, Severino Manotok, Jr., Jesus Manotok, Rahula Ignacio Manotok, Severino Manotok III, Fausto Manotok and Rosa Manotok, a thirty-four-hectare lot located in Payong, Old Balara, Quezon City covered by a certificate of title. Severino Manotok who was appointed judicial guardian of his minor children accepted on their behalf the aforesaid donation. At that time, there were no tenants or other persons occupying the said property.

In that same year, Teodoro Macaya accompanied by Vicente Herrera, the overseer of the property, went to the house of Manotok in Manila and pleaded that he be allowed to live on the Balara property so that he could at the same time guard the property and prevent the entry of squatters and the theft of the fruits and produce of the fruit trees planted by the owner. Manotok allowed Macaya to stay in the property as a guard (bantay) but imposed the conditions that at any time that the owners of the property needed or wanted to take over the property, Macaya and his family should vacate the property immediately; that while he could raise animals and plant on the property, he could do so only for his personal needs; that he alone could plant and raise animals on the property; and that the owners would have no responsibility or liability for said activities of Macaya. Macaya was allowed to use only three (3) hectares. These conditions, however, were not put in writing.

On December 5, 1950, the property-owners organized themselves into a corporation engaged primarily in the real estate business known as the Manotok Realty, Inc. The owners transferred the 34-hectare lot to the corporation as part of their capital contribution or subscription to the capital stock of the corporation.

From 1946 to 1956, Macaya did not pay, as he was not required to pay anything to the owners or corporation whether in cash or in kind for his occupancy or use of the property. However, the corporation noted that the realty taxes on the property had increased considerably and found it very burdensome to pay the said taxes while on the other hand, Macaya had contributed nothing nor even helped in the payment of the taxes. Thus, Macaya upon the request of the owners agreed to help by remitting ten (10) cavans of palay every year as his contribution for the payment of the realty taxes beginning 1957.

On June 5, 1964, the corporation requested Macaya to increase his contribution from ten (10) cavans to twenty (20) cavans of palay effective 1963 because the assessed value of the property had increased considerably. Macaya agreed.

In 1967, Macaya informed the corporation that he could not afford anymore to deliver any palay because the palay dried up. He further requested that in the ensuring years, he be allowed to contribute only ten (10) cavans of palay. The corporation said that if that was the case, he might as well not deliver anymore. Thus, from 1967 up to 1976, Macaya did not deliver any palay.

On January 31, 1974, Manotok Realty, Inc. executed a "Unilateral Deed of Conveyance" of the property in favor of Patricia Tiongson, Pacita Go, Roberto Laperal III, Elisa Manotok, Rosa Manotok, Perpetua M. Bocanegra, Filomena M. Sison, Severino Manotok, Jr., Jesus Manotok, Ignacio S. Manotok, Severino Manotok III and Fausto Manotok.

Sometime in 1974, Macaya was informed by the Manotoks that they needed the property to construct their houses thereon. Macaya agreed but pleaded that he be allowed to harvest first the planted rice before vacating the property.

However, he did not vacate the property as verbally promised and instead expanded the area he was working on.

In 1976, the Manotoks once more told Macaya to vacate the entire property including those portions tilled by him. At this point, Macaya had increased his area from three (3) hectares to six (6) hectares without the knowledge and consent of the owners. As he was being compelled to vacate the property, Macaya brought the matter to the Department (now Ministry) of Agrarian Reforms. The Manotoks, during the conference before the officials of the Department insisted that Macaya and his family vacate the property. They threatened to bulldoze Macaya’s landholding including his house, thus prompting Macaya to file an action for peaceful possession, injunction, and damages with preliminary injunction before the Court of Agrarian Relations.

The sole issue to be resolved in the present petition is whether or not a tenancy relationship exists between the parties. The Court of Agrarian Relations found that Macaya is not and has never been a share or leasehold tenant of Severino Manotok nor of his successors-in-interest over the property or any portion or portions thereof but has only been hired as a watchman or guard (bantay) over the same. On Macaya’s appeal from the said decision, the respondent appellate court declared the existence of an agricultural tenancy relationship and ordered Macaya’s reinstatement to his landholding.

Since what is involved is agricultural tenancy, we refer to Republic Act No. 1199 as amended by Republic Act No. 2263. Section 3 thereof defines agricultural tenancy as:chanrob1es virtual 1aw library



". . . the physical possession by a person of land devoted to agriculture belonging to, or legally possessed by, another for the purpose of production through the labor of the former and of the members of his immediate farm household, in consideration of which the former agrees to share the harvest with the latter, or to pay a price certain, either in produce or in money, or in both."cralaw virtua1aw library

Thus, the essential requisites of tenancy relationship are: 1) the parties are the landholder and the tenant; 2) the subject is agricultural land; 3) there is consent; 4) the purpose is agricultural production; and 5) there is consideration (Agustin, Code of Agrarian Reforms of the Philippines, 1981, p. 19). As correctly held by the trial court:chanrob1es virtual 1aw library



"All these requisites are necessary in order to create tenancy relationship between the parties and the absence of one or more requisites do not make the alleged tenant a de facto tenant as contra-distinguished from a de jure tenant. This is so because unless a person has established his status as a de jure tenant, he is not entitled to security of tenure nor is he covered by the Land Reform Program of the Government under existing tenancy laws . ."cralaw virtua1aw library

The key factor in ascertaining whether or not there is a landowner-tenant relationship in this case is the nature of the disputed property.

Is the thirty-four (34) hectare lot, of which the six (6) hectares occupied by the private respondent form a part, agricultural land? If not, the rules on agrarian reform do not apply.

From the year 1948 up to the present, the tax declarations of real property and the annual receipts for real estate taxes paid have always classified the land as "residential." The property is in Balara, Quezon City, Metro Manila, not far from the University of the Philippines and near some fast growing residential subdivisions. The Manotok family is engaged in the business of developing subdivisions in Metro Manila, not in farming.chanrobles law library

The trial court observed that a panoramic view of the property shows that the entire 34 hectares is rolling forestal land without any flat portions except the small area which could be planted to palay. The photographs of the disputed area show that flush to the plantings of the private respondent are adobe walls separating expensive looking houses and residential lots from the palay and newly plowed soil. Alongside the plowed or harrowed soil are concrete culverts for the drainage of residential subdivisions. The much bigger portions of the property are not suitable for palay or even vegetable crops.

The trial court noted that in a letter dated April 12, 1977, the City Engineer of Quezon City certified on the basis of records in his office that the property in question falls within the category of "Residential I Zone."cralaw virtua1aw library

The respondent court ignored all the above considerations and noted instead that the appellees never presented the tax declarations for the previous year, particularly for 1946, the year when Macaya began cultivating the property. It held that while the petitioners at that time might have envisioned a panoramic residential area of the disputed property, then cogonal with some forest, that vision could not materialize due to the snail pace of urban development to the peripheral areas of Quezon City where the disputed property is also located and pending the consequent rise of land values. As a matter of fact, it found that the houses found thereon were constructed only in the 70’s.

Whatever "visions" the owners may have had in 1946, the fact remains that the land has always been officially classified as "residential" since 1948. The areas surrounding the disputed six hectares are now dotted with residences and, apparently, only this case has kept the property in question from being developed together with the rest of the lot to which it belongs. The fact that a caretaker plants rice or corn on a residential lot in the middle of a residential subdivision in the heart of a metropolitan area cannot by any strained interpretation of law convert it into agricultural land and subject it to the agrarian reform program.

On this score alone, the decision of the respondent court deserves to be reversed.

Another requisite is that the parties must be landholder and tenant. Rep. Act No. 1199 as amended defines a landholder —

"Sec. 5(b) A landholder shall mean a person, natural or juridical who, either as owner, lessee, usufructuary, or legal possessor, lets or grants to another the use or cultivation of his land for a consideration either in shares under the share tenancy system, or a price certain under the leasehold tenancy system."cralaw virtua1aw library

On the other hand, a tenant is defined as —

"Sec. 5(a) A tenant shall mean a person who, himself and with the aid available from within his immediate farm household, cultivates the land belonging to, or possessed by, another with the latter’s consent for purposes of production, sharing the produce with the landholder under the share tenancy system or paying to the landholder a price certain in produce or in money or both, under the leasehold tenancy system." chanroblesvirtuallawlibrary:red

Under these definitions, may Macaya be considered as a tenant and Manotok as a landholder? Significant, as the trial court noted, is that the parties have not agreed as to their contributions of the several items of productions such as expenses for transplanting, fertilizers, weeding and application of insecticides, etc. In the absence of an agreement as to the respective contributions of the parties or other terms and conditions of their tenancy agreement, the lower court concluded that no tenancy relationship was entered into between them as tenant and landholder.

On this matter, the respondent Appellate Court disagreed. It held that:jgc:chanrobles.com.ph

". . . Whether the appellant was instituted as tenant therein or as bantay, as the appellees preferred to call him, the inevitable fact is that appellant cleared, cultivated and developed the once unproductive and idle property for agricultural production. Appellant and Don Severino have agreed and followed a system of sharing the produce of the land whereby, the former takes care of all expenses for cultivation and production, and the latter is only entitled to 10 cavans of rice per harvest. This is the essense of leasehold tenancy."cralaw virtua1aw library

It should be noted, however, that from 1967 to the present, Macaya did not deliver any cavans of palay to the petitioners as the latter felt that if Macaya could no longer deliver the twenty (20) cavans of palay, he might as well not deliver any. The decision of the petitioners not to ask for anymore contributions from Macaya reveals that there was no tenancy relationship ever agreed upon by the parties. Neither can such relationship be implied from the facts as there was no agreed system of sharing the produce of the property. Moreover, from 1946 to 1956 at which time, Macaya was also planting rice, there was no payment whatsoever. At the most and during the limited period when it was in force, the arrangement was a civil lease where the lessee for a fixed price leases the property while the lessor has no responsibility whatsoever for the problems of production and enters into no agreement as to the sharing of the costs of fertilizers, irrigation, seedlings, and other items. The private respondent, however, has long stopped in paying the annual rents and violated the agreement when he expanded the area he was allowed to use. Moreover, the duration of the temporary arrangement had expired by its very terms.

Going over the third requisite which is consent, the trial court observed that the property in question previous to 1946 had never been tenanted. During that year, Vicente Herrera was the overseer. Under these circumstances, coupled by the fact that the land is forested and rolling, the lower court could not see its way clear to sustain Macaya’s contention that Manotok had given his consent to enter into a verbal tenancy contract with him. The lower court further considered the fact that the amount of ten (10) cavans of palay given by Macaya to the owners from 1957 to 1964 which was later increased to twenty (20) cavans of palay from 1964 to 1966 was grossly disproportionate to the amount of taxes paid by the owners. The lot was taxed as residential land in a metropolitan area. There was clearly no intention on the part of the owners to devote the property for agricultural production but only for residential purposes. Thus, together with the third requisite, the fourth requisite which is the purpose was also not present.

The last requisite is consideration. This is the produce to be divided between the landholder and tenant in proportion to their respective contributions. We agree with the trial court that this was also absent.

As earlier stated, the main thrust of petitioners’ argument is that the law makes it mandatory upon the respondent Court of Appeals to affirm the decision of the Court of Agrarian Relations if the findings of fact in said decision are supported by substantial evidence, and the conclusions stated therein are not clearly against the law and jurisprudence. On the other hand, private respondent contends that the findings of the Court of Agrarian Relations are based not on substantial evidence alone but also on a misconstrued or misinterpreted evidence, which as a result thereof, make the conclusions of the Court of Agrarian Relations clearly contrary to law and jurisprudence.

After painstakingly going over the records of the case, we find no valid and cogent reason which justifies the appellate court’s deviation from the findings and conclusions of the lower court. It is quite clear from the 44-page decision of the trial court, that the latter has taken extra care and effort in weighing the evidence of both parties of the case. We find the conclusions of the respondent appellate court to be speculative and conjectural.

It bears reemphasizing that from 1946 to 1956, there was no agreement as to any system of sharing the produce of the land. The petitioners did not get anything from the harvest and private respondent Macaya was using and cultivating the land free from any charge or expense. The situation was rather strange had there been a tenancy agreement between Don Severino and Macaya.

From 1957 to 1964, Macaya was requested to contribute ten (10) cavans a year for the payment of the realty taxes. The receipts of these contributions are evidenced by the following exhibits quoted below:jgc:chanrobles.com.ph

"a) Exhibit ‘4’ adopted and marked as Exhibit ‘K’ for plaintiff (Macaya):chanrob1es virtual 1aw library

Ukol sa taon 1961

"Tinanggap namin kay G. Teodoro Macaya ang sampung (10) cavan na palay bilang tulong niya sa pagbabayad ng amillaramiento sa lupa ng corporation na nasa Payong, Q.C. na kaniyang binabantayan.’

"(b) Exhibit ‘9’ adopted and marked as Exhibit ‘L’ for plaintiff (Macaya):jgc:chanrobles.com.ph

"Tinanggap namin kay Ginoong Teodoro Macaya ang TATLONG (3) kabang palay bilang kapupunan sa DALAWAMPUNG (20) kabang palay na kanyang tulong sa pagbabayad ng amillaramiento para sa taong 1963 ng lupang ari ng Manotok Realty, Inc. na nasa Payong, Quezon City, na kanyang binabantayan samantalang hindi pa ginagawang SUBDIVISION PANGTIRAHAN.’

"c) Exhibit ‘10’ adopted and marked as Exhibit ‘N’ for plaintiff (Macaya):jgc:chanrobles.com.ph

"Tinanggap namin kay Ginoong Teodoro Macaya ang DALAWAMPUNG (20) kabang palay na kanyang tulong sa pagbabayad ng amillaramiento para sa taong 1964 ng lupang ari ng Manotok Realty Inc., na nasa Payong, Quezon City, na kanyang binabantayan samantalang hindi pa ginagawang SUBDIVISION PANG TAHANAN.’

"d) Exhibit ‘11’ adopted and marked as Exhibit ‘M’ for plaintiff (Macaya):jgc:chanrobles.com.ph

"Tinanggap namin kay Ginoong Teodoro Macaya ang DALAWAMPUNG (20) kabang palay na kanyang tulong sa pagbabayad ng amillaramiento para sa taong 1965 ng lupang ari ng Manotok Realty, Inc., na nasa Payong, Quezon City, na kanyang binabantayan samantalang hindi pa ginagawang SUBDIVISION PANG TAHANAN."cralaw virtua1aw library

From the above-quoted exhibits, it clearly appears that the payment of the cavans of palay was Macaya’s contribution for the payment of the real estate taxes; that the nature of the work of Macaya is that of a watchman or guard (bantay); and, that the services of Macaya as such watchman or guard (bantay) shall continue until the property shall be converted into a subdivision for residential purposes.

The respondent appellate court disregarded the receipts as self-serving. While it is true that the receipts were prepared by petitioner Perpetua M. Bocanegra, Macaya nevertheless signed them voluntarily. Besides, the receipts were written in the vernacular and do not require knowledge of the law to fully grasp their implications.

Furthermore, the conclusion of the respondent appellate court to the effect that the receipts having been prepared by one of the petitioners who happens to be a lawyer must have been so worded so as to conceal the real import of the transaction is highly speculative. There was nothing to conceal in the first place since the primary objective of the petitioners in allowing Macaya to live on the property was for security purposes. The presence of Macaya would serve to protect the property from squatters. In return, the request of Macaya to raise food on the property and cultivate a three-hectare portion while it was not being developed for housing purposes was granted.

We can understand the sympathy and compassion which courts of justice must feel for people in the same plight as Mr. Macaya and his family. However, the petitioners have been overly generous and understanding of Macaya’s problems. For ten years from 1946 to 1956, he lived on the property, raising animals and planting crops for personal use, with only his services as "bantay" compensating for the use of another’s property. From 1967 to the present, he did not contribute to the real estate taxes even as he dealt with the land as if it were his own. He abused the generosity of the petitioners when he expanded the permitted area for cultivation from three hectares to six or eight hectares. Mr. Macaya has refused to vacate extremely valuable residential land contrary to the clear agreement when he was allowed to enter it. The facts of the case show that even Mr. Macaya did not consider himself as a true and lawful tenant and did not hold himself out as one until he was asked to vacate the property.

WHEREFORE, the petition is GRANTED. The decision of the respondent Court of Appeals is hereby REVERSED and SET ASIDE and the decision of the Court of Agrarian Relations is AFFIRMED.

SO ORDERED.

Teehankee, Plana, Relova and De la Fuente, JJ., concur.

Melencio-Herrera, J., is on official leave.

1. REMEDIAL LAW; CIVIL ACTION; APPEALS; DISMISSAL FOR LATE FILING OF RECORD ON APPEAL, NOT MANDATORY. — Considering the surrounding circumstances showing that appellants had no intention of abandoning their appeal and that the delay was excusable, we hold that the Appellate Court did not commit grave abuse of discretion in admitting the tardy record on appeal of respondents Tumambo and Makasiar. It is not mandatory for an appellate court, under Section 1, Rule 50 of the Rules of Court, to dismiss an appeal by reason of the late filing of the of the mimeographed record on appeal (Catindig v. Court of Appeals, L-45995, August 31 1977 SCRA 543).

Elena O. Escutin questions the resolution of the Court of Appeals, admitting the tardy record on appeal of Zacarias Tumambo and Salud S. Makasiar and allowing them to file an appellants’ brief.

Defendants Tumambo and Makasiar seasonably appealed from the decision of the Court of First Instance of Manila dated December 26, 1978, ordering them to pay solidarily to Doctor Elena O. Escutin P3 1,000 as damages in a vehicular accident.

Leven S. Puno, appellants’ counsel, received on July 24, 1979 from the Court of Appeals a notice to pay the docket and legal research fees and to submit within 60 days from notice forty printed copies of his record on appeal. He failed to comply with that requirement. The Appellate Court in its resolution of November 28, 1979 dismissed petitioners’ appeal.

Puno filed a motion for reconsideration on December 27, 1979, attaching to said motion mimeographed copies of the record on appeal. He alleged that the case was assigned to an assistant, who suffered a nervous breakdown, who was later confined in the mental hospital and who had not been able to return to his law office.

An opposition was filed to the motion on January 11, 1980 but the Appellate Court granted it in its resolution of that same date and admitted the record on appeal (pp. 42-44, CA Rollo). A notice to file brief was sent to the appellants.

The appellees filed a motion for reconsideration. It was denied in the resolution of February 14, 1980. They assailed in this Court the reinstatement of the appeal.

They imputed inexcusable negligence to appellants’ counsel in not filing the printed record on appeal. They cited P.J. Kiener Co., Ltd., Et. Al. v. Republic of the Philippines, 128 Phil. 647, where the Republic’s failure to file the printed record on appeal, allegedly due to the fact that the receiving clerk misplaced the notice for that purpose, was characterized as a habitual subterfuge resorted to by litigants.

Considering the surrounding circumstances showing that the appellants had no intention of abandoning their appeal and that the delay was excusable, we hold that the Appellate Court did not commit a grave abuse of discretion in admitting the tardy record on appeal of respondents Tumambo and Makasiar. It is not mandatory for an appellate court, under section 1, Rule 50 of the Rules of Court, to dismiss an appeal by reason of the late filing of the mimeographed record on appeal (Catindig v. Court of Appeals, L-33063, February 28, 1979, 88 SCRA 675; Lasarte v. Court of Appeals, L-45995, August 31, 1977, 78 SCRA 543).

WHEREFORE, the resolution of the Court of Appeals is affirmed. No costs.

SO ORDERED.

Concepcion, Jr., Guerrero, Abad Santos and Cuevas, JJ., concur.

Escolin and Makasiar, JJ., took no part.

1. REMEDIAL LAW; RES JUDICATA; ORDER OF DISMISSAL IN THE CRIMINAL ACTION FOR FALSIFICATION, NOT CONSIDERED A BAR TO THE CIVIL ACTION TO NULLIFY TITLE. — The order of dismissal in the criminal action for falsification, which was based on prescription of the crime, cannot be considered res judicata or a bar to the civil action to nullify title filed by the San Diegos against the Cabrals. The civil complaint of the San Diegos does not stress that the deed of sale is void ab initio. For that reason, its imprescriptible character is not immediately apparent. But the fact is that the concocted character of the sale and the imprescriptibility of the action to declare it inexistent constitute the premise on which the civil action is based (See Art. 1410, Civil Code).

ABAD SANTOS, J, concurring:chanrob1es virtual 1aw library

1. REMEDIAL LAW; RES JUDICATA; DISMISSAL OF CRIMINAL ACTION FOR FALSIFICATION, NOT A BAR IN RESPECT TO THE ACTION TO NULLIFY TITLE. — Obviously the dismissal of the criminal action for falsification against Cabral did not constitute res judicata in respect of the action to nullify title which the Cabrals had obtained. The two actions are so disparate that it is impossible to apply the doctrine of prior judgment.

2. CIVIL LAW; PRESCRIPTION OF ACTIONS; ACTION FOR DECLARATION OF THE INEXISTENCE OF A CONTRACT, NOT PRESCRIPTIBLE. — An action (or defense) for the declaration of the inexistence of a contract, i.e., void, does not prescribe (Art. 1410, Civil Code). Accordingly, the action to nullify the title of the Cabrals on the ground that the sale to them was falsified does not prescribe.

This case is about the application of res judicata to an action to declare void or inexistent an alleged forged sale of registered land. The controversy involves 13,472 square meters of Lot No. 378 of the Malinta Friar Lands Estate, located at Barrio Lingunan, Valenzuela, Bulacan.

That proindiviso one-sixth portion was supposedly sold by the spouses Silvino San Diego and Eugenia Alcantara to the spouses Eugenio Cabral and Sabina Silvestre on August 14, 1948 for P4,000. The San Diegos claim that the sale was fabricated (p. 44, Rollo).

Eugenio Cabral was charged in the Court of First Instance at Baliuag with falsification of that sale. Judge Juan F. Echiverri dismissed the charge on the ground of prescription because the information was filed only on September 24, 1974 (pp. 77-78, Rollo). The dismissal was upheld by this Court in Cabral v. Puno, L-41692, April 30, 1976, 70 SCRA 606.

More than a quarter of a century after that alleged sale, or on May 2, 1974, the San Diego spouses, acting on the theory that the sale was falsified, filed in the Court of First Instance, Valenzuela Branch, an action to nullify the title which the Cabrals had obtained for that 1/6 portion and for damages (p. 48, Rollo).

Judge Eduardo P. Caguioa in an order dated January 9, 1978 dismissed the action on the ground that the order of dismissal issued by Judge Echiverri in the criminal case was res judicata in the civil case (pp. 79-81, Rollo).

The San Diegos assailed the order of dismissal by means of a petition for certiorari in the Court of Appeals. In a resolution dated January 30, 1979, Justices Porfirio V. Sison, Gancayco, and Gorospe ruled that Judge Caguioa erred in applying res judicata and that the San Diegos’ action was imprescriptible because it was an action to nullify a document which was void ab initio (p. 260, Rollo).

However, in its decision of March 30, 1979, Justices Porfirio V. Sison, Gancayco and Geraldez dismissed the petition because certiorari is not available to correct erroneous factual or legal conclusions and because an action based on a contract prescribes in ten years (pp. 109 and 261, Rollo).

The San Diegos filed a motion for reconsideration. The Appellate Court in its resolution of November 29, 1979 set aside its decision. It held that, as the action of the San Diegos is for a declaration of the forged or fictitious character of the deed of sale, it is imprescriptible. It reversed the lower court’s order of dismissal. In the interest of justice, it ordered a trial on the merits.

The Cabrals appealed to this Court. They contend that the Appellate Court erred in not applying res judicata; in holding that the trial court’s order of dismissal is bereft of factual and legal findings necessary to "apprise the parties of their legal standing" ; in not holding that the order of Judge Echiverri in the criminal case, as affirmed by this Court, constitutes res judicata in the civil case and in not holding that the action had already prescribed.

It is obvious that the order of dismissal in the criminal action for falsification, which was based on prescription of the crime, cannot be considered res judicata or a bar to the civil action of the San Diegos against the Cabrals.

The civil complaint of the San Diegos does not stress that the deed of sale is void ab initio. For that reason, its imprescriptible character is not immediately apparent. But the fact is that the concocted character of the sale and the imprescriptibility of the action to declare it inexistent constitute the premise on which the civil action is based (See art. 1410, Civil Code).

Since the trial court erred in dismissing the complaint on the ground of res judicata, the Appellate Court acted correctly in reversing that order.

WHEREFORE, without prejudging the merits of the action of the San Diegos, the resolution of the Court of Appeals is affirmed. No costs.

SO ORDERED.

Makasiar, Concepcion, Jr., Guerrero, Escolin and Cuevas, JJ., concur.



ABAD SANTOS, J., concurring:chanrob1es virtual 1aw library

I concur and wish to add the following comments:chanrob1es virtual 1aw library

1. Obviously the dismissal of the criminal action for falsification against Cabral did not constitute res judicata in respect of the action to nullify the title which the Cabrals had obtained. The two actions are so disparate that it is impossible to apply the doctrine of prior judgment.

2. An action (or defense) for the declaration of the inexistence of a contract, i.e. void, does not prescribe (Art. 1410, Civil Code.) Accordingly, the action to nullify the title of the Cabrals on the ground that the sale to them was falsified does not prescribe.

3. Upon the other hand extraordinary acquisitive prescription of real property must also be considered. (Art. 1137, Civil Code.)

1. LABOR AND SOCIAL LEGISLATIONS; LABOR CODE; EMPLOYER-EMPLOYEE RELATIONSHIP; TERMINATION THEREOF; BREACH OF RESPONSIBILITY OF SECURITY GUARDS, AS A GROUND THEREFOR. — The private respondent was, employed by the petitioner corporation as a security guard. As such, he is expected to conduct himself properly and with decorum at all times. His main task as a security guard is to maintain peace and order in the premises of his assigned area of responsibility. For him to get involved in a fracas with policemen at that, and to commit exactly the same infractions which he is supposed to prevent in others at his place of employment is a breach of the responsibilities which a security guard is bound to discharge. Thus, whether the charges of "alarm and scandal" and "assault upon an agent of a person in authority" were committed while the private respondent was off duty or were committed outside of his work assignment is immaterial. Whether or not the incidents eventually resulted in successful prosecutions is not significant. The records show that the incidents actually occurred.

2. ID.; ID.; ID.; ID.; SERIES OF IRREGULARITIES IN THE PERFORMANCE OF DUTIES, JUST CAUSE FOR TERMINATION; CASE AT BAR. — While the Bankside Restaurant incident alone is ordinarily not sufficient ground for termination, the very nature of Angeles’ work as a security guard together with the allegations of untidiness, laxity in the performance of his duties, going on duty under the influence of liquor and entertaining outsiders at night while on duty are more than sufficient to justify the termination of private respondent’s employment. The public and private respondents considered these circumstances singly and separately and arrived at the conclusion that they are not sufficient to justify private respondent’s termination. We should consider the different acts of misconduct committed by private respondent in their totality and not independent from each otter. Fitness for continued employment cannot be compartmentalized into tight little cubicles of aspects of character, conduct, and ability separate and independent from each other. A series of irregularities when put together may constitute serious misconduct, which under Article 283 of the Labor Code is a just cause for termination.

3. ID.; ID.; ID.; EMPLOYEE CANNOT BE COMPELLED TO CONTINUE WITH EMPLOYMENT OF A PERSON; CASE AT BAR NOT AN EXCEPTION. — The employer cannot legally be compelled to continue with the employment of a person who admittedly was guilty of misfeasance or malfeasance towards his employer and whose continuance in the service of the latter is patently inimical to his interests. The law, in protecting the rights of the laborer, authorizes neither oppression nor self-destruction of the employer (San Miguel Corporation v. National Labor Relations Commission, 115 SCRA 329). The only exception to this rule is where the suspension or dismissal is whimsical or unjustified (Velayo v. Republic of the Philippines, 97 Phil. 378), and such is not the situation in the present case.

4. ID.; ID.; ID.; SEPARATION PAY GIVEN TO DISMISSED EMPLOYEE ON GROUNDS OF EQUITABLE CONSIDERATIONS. — Considering, however, the various circumstances of this case, we apply equitable considerations. While ruling that the private respondent had brought by his own conduct a valid reason to justify his separation from employment, we nonetheless direct the employer to pay the private respondent the separation pay to which he may be entitled under the law, any collective bargaining agreement, or company rules or practice.

This is a petition for certiorari to set aside the order of respondent Deputy Minister of Labor and Employment Vicente Leogardo, Jr., who affirmed Acting District Officer Saturnino P. Orate’s order insofar as it declared the dismissal of private respondent Alberto Angeles illegal for lack of justifiable cause and ordered his reinstatement to his former position without loss of seniority rights. The respondent Deputy Minister modified the award of backwages such that it should be computed from September 12, 1977 up to his actual reinstatement but limited the same to three years without qualification or deduction.

The facts of the case are summarized by Acting District Officer Saturnino Orate as follows:jgc:chanrobles.com.ph

"The records of the case reveal that Alberto Angeles had been employed on May 17, 1976 as a security guard by the respondent and his last assignment was at the PNB Lingayen, Pangasinan. On August 16, 1977, he was arrested by police authorities for creating trouble inside the Bankside Restaurant and for assault to person in authority on same date. On August 22, 1977 a criminal complaint No. 6730 was filed against him for the crime of assault upon an agent of person in authority and on August 24, 1977 another criminal case No. 6735 was filed against him for the crime of alarm and scandal. Both were filed in the Municipal Court of Lingayen, Pangasinan, and are still pending up to the present. While the complainant Alberto Angeles filed an Administrative Case No. 41-77 with the Police Commission on August 31, 1977 against four (4) policemen namely Jaime Guarin, Aning Bravo, Berting Sison and Rudy Estrada for mauling him inside the Bankside Restaurant in Lingayen, Pangasinan on August 16, 1977 at 8:00 p.m. and on October 10, 1977 filed a criminal case against the four policemen mentioned above for slight physical injuries as a result of the said mauling incident. On September 15, 1977 a memorandum was issued by Col. Ernesto Tigno to Mr. N. N. Pale, Manager, PNB Lingayen Branch to advise NASECO guard Angeles, that he is on preventive suspension effective September 12, 1977 until further notice from his employer and on same memorandum and in line with the instruction of Col. Ernesto Tigno, the Branch Manager N. N. Pale advised Alberto Angeles to cease reporting for duty as he was under preventive suspension until further notice. The respondent filed an application for clearance to terminate the services of Alberto Angeles on the ground of violation of NASECO code of Discipline, letter D, No. 10, effective December 19, 1977 with the Regional Office No. IV, Manila, furnishing him a copy of said application for clearance evidenced by Registry Receipt No. 43224."

On May 11, 1978, the application to terminate was approved by the Regional Office of the Ministry of Labor and Employment.

On April 17, 1978, a case for illegal dismissal was, in turn, filed by private respondent Angeles before the Regional Office of the Ministry of Labor and Employment at Dagupan City against petitioner corporation.

On June 16, 1978, Acting District Officer Saturnino P. Orate issued an order declaring Angeles’ complaint for illegal dismissal as having become moot and academic and his preventive suspension illegal there being no application for clearance filed in this matter. He ordered petitioner NASECO to pay backwages from September 12, 1977 up to December 6, 1977.

The private respondent appealed to the Ministry of Labor and Employment. On May 30, 1980, the Ministry of Labor and Employment set aside the order of the District Officer declaring Angeles’ complaint for illegal dismissal moot and academic and remanded the case to the District Officer for further hearing and resolution.

On October 11, 1980, District Officer Saturnino Orate rendered a decision declaring the dismissal of private respondent Alberto Angeles illegal and ordered petitioner NASECO to reinstate Angeles to his former position without loss of seniority rights with full backwages from June 1, 1980 up to his actual reinstatement. The dispositive portion of his order reads:jgc:chanrobles.com.ph

"In the light of the foregoing, the dismissal of Alberto Angeles is hereby declared illegal for lack of justifiable ground, therefore, Alberto Angeles should be, as it is hereby ordered reinstated back to his former position without loss of seniority rights with full backwages from June 1, 1980 up to his actual reinstatement."cralaw virtua1aw library

On October 23, 1980, petitioner corporation filed a motion for reconsideration and/or appeal.

On April 27, 1983, respondent Deputy Minister of Labor and Employment Vicente Leogardo, Jr. modified the order of the Acting District Officer in that backwages should be computed from the time respondent Angeles was placed on preventive suspension on September 12, 1977 and that it should be limited to three (3) years without qualification or deduction. The dispositive portion of the order reads:jgc:chanrobles.com.ph

"WHEREFORE, subject to the modification stated above, the Order dated October 1, 1980 is hereby affirmed and the instant appeal is dismissed, for lack of merit."cralaw virtua1aw library

On June 20, 1983, the petitioner filed the instant petition for certiorari.

On June 27, 1983, we issued a temporary restraining order enjoining the respondents from enforcing the order dated April 27, 1983.

Petitioner submits that private respondent Alberto Angeles was guilty of the offenses charged as evidenced by Annexes "A" to "D", to wit:jgc:chanrobles.com.ph

"A" — report covering memorandum for various offenses committed by private respondent ranging from sporting long haircut to laxity in the performance of his duties.

"B" and "B-1" — criminal complaints filed against the private respondent and the corresponding supporting documents and affidavits.

"C" — evidence of the investigation and recommendation made by the Personnel Board of petitioner NASECO (the NASECO Board which is in-charge of deliberation of Administrative cases of NASECO Personnel), recommending the termination of the services of the private respondent, for violation of the NASECO Code of Discipline."cralaw virtua1aw library

Petitioner further alleges that even before the Bankside Restaurant incident which led to private respondent’s dismissal he was already found guilty of similar behaviour (as contained in the Investigation Report, Annex "C") —

"a. sometimes went on duty under the influence of liquor;

"b. untidiness and improper wearing of uniform, sporting long hair with moustache and beard;

"c. entertaining outsiders at night while on duty;

"d. the incident was the second time he has created inside the restaurant."cralaw virtua1aw library

Petitioner argues that because of the very nature of the work of a security guard, such scandalous and unbecoming behaviour of the private respondent, together with his earlier similar offenses, is sufficient and valid ground for dismissal.

Respondents on the other hand argue that the above incidents do not constitute proof sufficient to support dismissal —

" — the July 7, 1977 reprimand concerned untidiness and laxity in work, something unrelated to the cause invoked for the dismissal. That Angeles was merely reprimanded for these lapses show that a more severe penalty was not appropriate . . .



" — There is no evidence, then and now, that Angeles has been found guilty by the court before which the charges were filed.

" — Independently of the copies of the charges of alarm and assault, petitioner company did not present evidence to show that Angeles had committed these offenses.

" — The recommendation of petitioner’s personnel board is self-serving. That recommendation shows on its face that the board relied merely on the police complaints and report concerning the charges of alarm and assault . . .



" — Besides, petitioner’s board of personnel did not conduct any hearing that would have given Angeles the chance to dispute the charges against him. It took into account only the evidence against him . . ."cralaw virtua1aw library



We agree with the petitioner.

The private respondent was employed by the petitioner corporation as a security guard. As such, he is expected to conduct himself properly and with decorum at all times. His main task as a security guard is to maintain peace and order in the premises of his assigned area of responsibility. For him to get involved in a fracas, with policemen at that, and to commit exactly the same infractions which he is supposed to prevent in others at his place of employment is a breach of the responsibilities which a security guard is bound to discharge. Thus, whether the charges of" alarm and scandal" and "assault upon an agent of a person in authority" were committed while the private respondent was off duty or were committed outside of his work assignment is immaterial.’ Whether or not the incidents eventually resulted in successful prosecutions is not significant. The records show that the incidents actually occurred.

A security guard, by the very nature of his job, must possess attributes of discipline, proper behaviour, courtesy, respect for authority, and emotional stability. There are altogether too many security guards who are trigger happy or who get mistaken notions of power simply because they are armed. Unfortunate incidents have been caused by indiscriminate resort to firearms resulting from heated arguments over such trivial items as reserved parking spaces, inspection of brief cases and bundles, wearing of ID cards, and other matters easily resolved by more disciplined and reliable persons. The employer cannot wait until a more serious or fatal incident involving its employees occurs before taking appropriate action.

While the Bankside Restaurant incident alone is ordinarily not sufficient ground for termination, the very nature of Angeles’ work as a security guard together with the allegations of untidiness, laxity in the performance of his duties, going on duty under the influence of liquor and entertaining outsiders at night while on duty are more than sufficient to justify the termination of private respondent’s employment. The public and private respondents considered these circumstances singly and separately and arrived at the conclusion that they are not sufficient to justify private respondent’s termination. We should consider the different acts of misconduct committed by the private respondent in their totality and not independent from each other. Fitness for continued employment cannot be compartmentalized into tight little cubicles of aspects of character, conduct, and ability separate and independent of each other. A series of irregularities when put together may constitute serious misconduct, which under Article 283 of the Labor Code, is a just cause for termination. Thus, petitioner’s Personnel Board made the following recommendation after due investigation:jgc:chanrobles.com.ph

"We, the members of the Personnel Board, do hereby certify that we have examined the evidences presented against Mr. Angeles relative to his violation of the Code. The Board feels that although Mr. Angeles is not yet convicted for the crime he had committed, his prolonged stay with the Corporation as security guard will not only endanger the security of the client company but may also destroy the corporate image and goodwill.

"We, therefore, recommend that corresponding clearance to terminate his service be applied with the National Labor Relations Commission, Department of Labor.

As repeatedly held by this Court:jgc:chanrobles.com.ph

"An employer cannot legally be compelled to continue with the employment of a person who admittedly was guilty of misfeasance or malfeasance towards his employer and whose continuance in the service of the latter is patently inimical to his interests. The law, in protecting the rights of the laborer, authorizes neither oppression nor self-destruction of the employer." (San Miguel Corporation v. National Labor Relations, Commission, 115 SCRA 329.).

The only exception to this rule is where the suspension or dismissal is whimsical or unjustified (Velayo v. Republic of the Philippines, 97 Phil. 378), and such is not the situation in the present case.

Considering, however, the various circumstances of this case, we apply equitable considerations. While ruling that the private respondent has brought by his own conduct a valid reason to justify his separation from employment, we nonetheless direct the employer to pay the private respondent the separation pay to which he may be entitled under the law, any collective bargaining agreement, or company rules or practice.

WHEREFORE, the petition is GRANTED. The orders appealed from are REVERSED and SET ASIDE without prejudice to the private respondent’s receiving termination pay to which he may be entitled. The temporary restraining order issued on June 27, 1983 enjoining the respondents from enforcing the order dated April 27, 1983 is made PERMANENT.

SO ORDERED.

Teehankee, Plana, Relova and De la Fuente, JJ., concur.

Melencio-Herrera J., is on official leave.

1. CIVIL LAW; DAMAGES; BASES FOR AWARD THEREOF; CASE AT BAR. — The question of damages having been earlier raised and already passed upon not only by the Court of Appeals in CA-G.R. No. L-11248-R, but also by this Court in G.R. No. 7057, wherein it has been held that by reason of the wrongful seizure of the machineries and the consequent failure of the respondent to install them, petitioners are entitled to damages; and it appearing that in the assessment of the said recoverable damages, the Honorable Court of Appeals correctly adhered to the rule and procedure laid down by the case of Kairuz v. Pacio and Pacio, L-1450, July, 26, 1960; and considering further that the unrealized profit alleged and computed by the appellants are rather speculative, the same being mainly based on the estimates of petitioner company’s Office Manager which is obviously unreliable; and that under the circumstances that whatever damages incurred by appellants resulting from the wrongful seizures and failure to re-install the machineries in question could have been minimized by the petitioner, the Court finds no legal or any factual basis for altering the amount of damages awarded by the Court of Appeals.

R E S O L U T I O N

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; PRINCIPLE OF FALSUS IN UNO FALSUS IN OMNIBUS, FLEXIBLE. — The maxim of "falsus in uno falsus in omnibus," however, is not a positive rule of law. Neither is it an inflexible one of universal application. If a part of a witness’ testimony is found true, it cannot be disregarded entirely. The testimony of a witness may be believed in part and disbelieved in part.

2. ID., ID.; ALIBI; CANNOT PREVAIL OVER POSITIVE IDENTIFICATION. — The appellant’s defense of alibi has nothing to support it except the doubtful testimony of Jose Tabian and the uncorroborated time record he had allegedly filled up that day, which certainly cannot prevail over the positive testimony of the witnesses for the prosecution who saw him shoot Macario Basco. Besides, there is no conclusive proof that it was physically impossible for him to be at Namuac school building on that fateful morning of November 15, 1967. The place is only 18 kilometers from his office at Taguiporo, and he could have left his office on his motorcycle after accomplishing the time record for arrival, go to Namuac, and be back in his office in time for his lunch break without his absence being noted.

Appeal of the accused Guillermo Agdeppa from the judgment of the Court of First Instance of Cagayan finding him guilty of the crime of Frustrated Murder and sentencing him and his co-accused Pantaleon Pacis and Ely Navarro, to suffer an indeterminate penalty of from six (6) years and one (1) day of prision mayor, as minimum, to twelve (12) years and one (1) day of reclusion temporal as maximum, and to indemnify, jointly and solidarily, the victim, Macario Basco, in the amount of P1,003.90 as actual damages, plus P8,000.00 for the diminution of his earning capacity, and P8,000.00, as moral damages, without subsidiary imprisonment in case of insolvency and to pay the costs.

The said accused, Guillermo Agdeppa, Pantaleon Pacis, Ely Navarro, and Gines Dominguez were charged before the Court of First Instance of Cagayan with the crimes of Murder and Frustrated Murder, docketed as Crim. Case Nos. 288-S and 289-S, respectively, committed as follows:chanrob1es virtual 1aw library

1. Crim Case No. 288-S:jgc:chanrobles.com.ph

"That on or about November 15, 1967, in the municipality of Sanchez Mira, province of Cagayan and within the jurisdiction of this Honorable Court, the said accused Pantaleon Pacis, Ely Navarro, Guillermo Agdeppa and Gines Dominguez, together with three other John Does who are still at large and unidentified, conspiring together and helping one another, armed with guns, with intent to kill, with treachery and with evident premeditation and taking advantage of superior strength, did then and there wilfully, unlawfully and feloniously attack, assault and shot one Manuel Franco who was then totally unarmed, indicting upon him several gunshot wounds which caused his instantaneous death"

2. Crim. Case No. 289-S:jgc:chanrobles.com.ph

"That on or about November 15, 1967, in the municipality of Sanchez Mira, province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused Pantaleon Pacis, Ely Navarro, Guillermo Agdeppa and Gines Dominguez, together with three other John Does who are still at large and unidentified, conspiring together and helping one another, armed with guns, with intent to kid, with evident premeditation, with treachery and taking advantage of superior strength, did then and there wilfully, unlawfully and feloniously attack, assault and shot one Macario Basco, inflicting upon him several gunshot wounds; that the accused have performed all the acts of execution, which would produce the crime of Murder as a consequence but which, nevertheless, did not produce it by reason of causes independent of their own will."cralaw virtua1aw library

After hearing the evidence adduced by the parties during a joint trial, the trial court found the accused Pantaleon Pacis and Ely Navarro guilty of the crime of Murder, as charged in Crim. Case No. 288-S and sentenced each of them to suffer the penalty of reclusion perpetua, to indemnify, jointly and severally, the heirs of the deceased Manuel Franco in the amount of P1,200.00 plus P25,000.00 for the loss of earning capacity, P12,000.00 indemnity for the death of the said Manuel Franco and P10,000.00 as moral damages, without subsidiary imprisonment in case of insolvency, and to pay the costs. Their co-accused Guillermo Agdeppa and Gines Dominguez were acquitted of the charge.

Gines Dominguez was also acquitted in Crim. Case No. 289 S, a prosecution for Frustrated Murder. Guillermo Agdeppa, however, and his co-accused Pantaleon Pacis and Ely Navarro were found guilty of the charge and sentenced to suffer the penalty heretofore stated.

From this judgment, the accused Pantaleon Pacis, Ely Navarro, and Guillermo Agdeppa appealed to this Court. However, sometime later, the accused Pantaleon Pacis and Elly Navarro withdrew their respective appeals. 1 Under consideration is the appeal of Guillermo Agdeppa from the judgment of the trial court which found him guilty of Frustrated Murder.

The facts of the case, as summarized in the People’s Brief, are as follows:jgc:chanrobles.com.ph

"Pantaleon Pacis, one of the appellants herein and Atanacio Negre were contenders for the position of Municipal Mayor in the Municipality of Sanchez Municipality of, province of Cagayan on the elections of November 14, 1967. Pantaleon Pacis was the candidate of the Nacionalista Party and he was then the incumbent mayor running for re-election Pp. 1051, tsn, March 12, 1970) and Atanacio Negre was the candidate of the Liberal Party (p. 13, tsn, August 5, 1969).

Manuel (Emmanuel) Franco, the deceased victim, was then the incumbent vice-mayor having been elected as the running mate of accused Pantaleon Pacis in the 1963 mayoralty elections but now the campaign manager of candidate Atanacio Negre against accused Pantaleon Pacis (p. 13, tsn, August 5, 1969). Macario Basco was one of the political leaders of Atanacio Negre (p. 12, tsn, August 5, 1969).

In the morning of November 15, 1967, the day after election day, Manuel (Emmanuel) Franco and Macario Basco with their companions went to Namuac Elementary School, Sanchez Mira, Cagayan to get the election results from precincts that were located in that school p. 16, tsn, August 5, 1969). They were riding on a jeep and upon arrival there, they parked the jeep in front of the stairs of the Namuac Elementary School about a meter from the first step west end of the stairs (p. 17, tsn, August 5, 1969). Macario Basco and Manuel (Emmanuel) Franco ascended the stairs and entered a precinct which turned out to be precinct No. 20. As Basco’s authority to get election results was only for precinct Nos. 18 and 19, he went out and Franco was left there (pp. 18-23, ten, August 5, 1969). While Basco was in the porch, he saw Pantaleon Pacis who asked, "why are you here", to which he (Basco) answered, "the elections are over and we are entitled to get the results of the elections", and he went down with the intention to show Mayor Pacis his (Basco) authority to get election results pp. 22-23, tsn, August 5, 1969) but Pacis grabbed the papers from him and so Basco went to sit on the elevated cemented portion of the stairs (p. 24, tsn, August 5, 1969). Later on Franco came out shouting that he already got the election result in precinct No. 20 (p. 25, tsn, August 5, 1969). When Pacis saw Franco, Pacis asked him "why are you here", and he (Pacis) beckoned him (Ibid). Franco went downstairs to go to Pacis. Pacis who was sitting on the hood of the jeep went down from the hood of the jeep and met Franco on the first step of the stair of the Namuac Elementary School and grabbed the papers from Franco. Franco went to sit at the right side of Basco p. 26, tsn, August 5, 1969).

After looking at the papers, he had grabbed from Basco and Franco, Pacis then went upstairs to where his co-accused Elly Navarro and Guillermo Agdeppa were, and Pacis with Navarro looked again at the papers which the former had grabbed from Basco and Franco (p. 33, tsn, August 5, 1969).

Basco and Franco still seated on the stairs looked down towards the direction where they had parked their jeep and saw two men on the right side of the jeep and another man on the left side (Ibid). When Basco looked at his back, he saw accused Pantaleon Pacis, Elly Navarro and Guillermo Agdeppa with drawn guns pointed at him and Franco, and moments later the accused started firing (pp. 34-37, tsn, Aug. 5, 1969). Basco was hit. Then another volley of fire came from the three named-accused and Basco was hit again. He then lie prone between the jeep and the first step of the stairs. While in that position, there was continuous firing coming from his left and right and he was hit again. He suffered several gunshot wounds (pp. 37-40, tsn, August 5, 1969, Exhibits "F" and "F-1").

After the second volley of fire, Basco heard the deceased Franco say "I am already hit Manong", (p. 37, tsn, August 5, 1969. Later on Basco heard Pantaleon Pacis in a commanding voice, "never mind that now, he referring to Basco is already dead. Vice-Mayor Franco was able to escape, you go after him and kill him", (pp. 40-41, tsn, August 5, 1969 and this was addressed to Elly Navarro, Guillermo Agdeppa and the three men beside the jeep who responded to the command by running towards the gate of the school (p. 42, tsn, August 5, 1969).

After three or four minutes, Basco heard gunshots, east of the direction where he was lying prone. Later on after about fifteen minutes he shouted for help and he was brought to Northern Cagayan Provincial Hospital, and one day after, to the Veterans Memorial Hospital at Quezon City where he was confined until December 31, 1967 (Exhibit "A", pp. 51-54, tsn, August 5, 1969). He suffered six gunshot wounds described in Exhibits "F" and "F-1", his left arm was disabled (p. 55, tsn, August 5, 1969) and the small bone on his right foot was fractured (p. 56, tsn, August 5, 1969).

Manuel (Emmanuel) Franco died due to gunshot wounds described in Exhibits "C" and "C-1" (pp. 255-260, tsn, August 26, 1969). His assailants were Pantaleon Pacis, Guillermo Agdeppa, Elly Navarro, Gines Dominguez and three other unidentified persons (p. 203, tsn, August 27, 1969)."cralaw virtua1aw library

The appellant, Guillermo Agdeppa, denied participation in the commission of the crimes and interposed the defense of alibi. According to him, he was in Taguiporo, Sanchez Mira, where he was employed in the Agricultural Extension Office, at the time the shooting incident occurred in Namuac, Sanchez Mira, and learned of it only upon his return to Callungan in the evening. He declared that he left his house at Callungan at about 7:00 o’clock in the morning of November 15, 1967, for his office at Taguiporo; that he rode on a motorcycle which he borrowed from his brother, with his daughter as passenger, whom he brought to the Divine Word High School in time for her 7:30 a.m. class; that after dropping off his daughter at the school, one Jose Tabian came to him and asked for a ride; that they arrived at his office at Taguiporo at 7:40 o’clock in the morning where he found Faustino Sadama and Placido Lagran who wanted palay seedlings, waiting for him; that he stayed in his office preparing his monthly report and left at 12:05 o’clock in the afternoon to eat his lunch and returned at 12:45 p.m., and finally went home at past 5:00 o’clock in the afternoon. 2 To support his claim, he presented in evidence the time record he had accomplished, 3 and the testimony of Jose Tabian who allegedly rode with him on his motorcycle from the Divine Word High School up to his office at Taguiporo that morning of November 15, 1967.

The trial court, however, rejected the defense saying that the evidence for the prosecution is more worthy of credence, more natural in the light of human conduct and behavior, more credible, than that for the defense. The trial court specially cited the testimony of Macario Basco which, to its mind, is very natural, credible and from a witness who told nothing but the truth.

Counsel for the appellant now contends that the trial court erred in convicting the appellant on the testimonies of the witnesses for the prosecution which the lower court itself considered to be incredible and unworthy of belief. Counsel argues that all the witnesses for the prosecution implicated Gines Dominguez in the shooting of Basco and Franco but the trial court gave no credence to their testimonies and acquitted Gines Dominguez; however, the trial court gave credence to the testimonies of the same witnesses in convicting the appellant for the shooting of Basco. Counsel cites the maxim of" falsus in uno falsus in omnibus."cralaw virtua1aw library

The maxim of" falsus in uno falsus in omnibus," however, is not a positive rule of law. Neither is it an inflexible one of universal application. If a part of a witness’ testimony is found true, it cannot be disregarded entirely. The testimony of a witness may be believed in part and disbelieved in part.

Counsel for the appellant also claims that the trial court erred in convicting the accused on the highly improbable, contradictory, and incredible tale of the witnesses for the prosecution, since all the bullet "pock" marks on the cement wall show conclusively that the shooting carne from the street where the gravel and sand truck was, and not from the top of the stairs where Pacis, Navarro, and Agdeppa were standing; and that the said witnesses failed to notify the authorities or anyone until after the lapse of several months.

The trial court, however, discounted the defense theory that the shots carne from the gravel and sand truck. The trial court said:jgc:chanrobles.com.ph

"From these photographs, with Macario Basco and Manuel Franco sitting on the elevated cemented portion facing a little to the southeast, back of them would be just behind the railing of the porch (p. 75 of Criminal Case No. 288-S; pp. 230 and 231 of the petition to bail pp. 160-165 of Criminal Case No. 289-S) where Pantaleon Pacis, Eliseo Navarro and Guillermo Agdeppa were when they started to fire their guns. This is borne by the evidence.

To follow the defense theory that the firing came from the sand and gravel truck that was passing by would be absurb and downright preposterous for the following reasons:chanrob1es virtual 1aw library

1. The defense claim that those aboard the truck were armed partisans of Negre whose campaign manager Franco and political leader Basco were sitting by the stairs clearly visible from the truck a distance of forty meters.

2. If the armed partisans fired at Pacis as claimed by the defense at the time that the truck was moving slowly on the national road and at a time when Pacis had just gone up the stairs one to two minutes just after greeting Franco and Basco (testimony of Pacis) then it is incredible that these armed partisan would fire indiscriminately at Pacis from a moving vehicle when Basco and Franco their political leaders were very close to Pacis and could be shot.

3. The defense would assume too much credulity and childish credibility to the Court to make the Court believe that the alleged armed partisans of Negre were the same persons who fired at and wounded his own political leaders Manuel Franco and Macario Basco at the time these two were sitting by the stairs.

4. The testimony of Macario Basco is to the Court very natural, credible and from a witness who only told nothing but truth. In spite of thorough and provoking cross examination Basco was calm and very natural. He gave answers directly, never evasively, a sure and unmistaken sign that he was faithfully relating to the Court the actual events and factual circumstances. The defense failed to show cause or motive on the part of Basco why he should so testify against Pacis with whom he had cordial relations and who was born and a native of Namuac, Sanchez Mira, Cagayan, the birth place of Pacis — where his father and other relatives still reside nor against Eliseo Navarro and Guillermo Agdeppa.

5. On the defense theory that the evidence and theory of the prosecution is incredible because of the nature and number of wounds sustained by Macario Basco and Manuel Franco the evidence shows that Basco suffered fourteen (14) wounds, seven bullet wounds of entry, six wounds of exit and abrasions; and Basco suffered three gunshot wounds. The defense assumes (a) that if Pacis, Navarro, Agdeppa and three others as claimed by Basco and Bagasol were the ones who fired at both Basco and Franco — these six persons the defense assume are all good, dead shots, marksmen but there is no evidence to that effect — could have inflicted more wounds — Franco would not have been able to run away. (b) The defense also claims that these persons — three in front and three behind — with Franco and Basco in between could have shot each other.

With regards to the first, there is no showing that these persons are good shots or marksman; neither is there evidence that they concentrated their fire on both so that Franco could have suffered more wounds right at the stairs and would not have been able to run. It is apparent that the gunshots was more concentrated on Basco because of the evidence that the accused Pantaleon Pacis had to say never mind that he is already dead go after the vice mayor he was able to escape and kill him. To show that the three who fired from the front were not good shots the Court can appreciate the exhibits more particularly the pictures (previously cited) with pop marks. The pop marks on the exhibits evidently were fired by the three men in front.

It is not true that the witnesses for the prosecution did not notify the authorities about the shooting incident, as claimed by the appellant. As early as November 19, 1967, Rogelio Bagasol executed a sworn statement before one Capt. Liganor and another one before CIS agents on December 9, 1967. 4 Macario Basco also executed an affidavit on December 8, 1967. 5 Other eyewitnesses were afraid to notify the authorities because Pantaleon Pacis and his men were in power. 6

It should be stated, in conclusion, that the appellant’s defense of alibi has nothing to support it except the doubtful testimony of Jose Tabian and the uncorroborated time record he had allegedly filled up that day, which certainly cannot prevail over the positive testimony of the witnesses for the prosecution who saw him shoot Macario Basco. Besides, there is no conclusive proof that it was physically impossible for him to be at the Namuac school building on that fateful morning of November 15, 1967. The place is only 18 kilometers from his office at Taguiporo, 7 and he could have left his office on his motorcycle after accomplishing the time record for arrival, go to Namuac, and be back in his office in time for his lunch break without his absence being noted.

WHEREFORE, the judgment appealed from should be as it is hereby, AFFIRMED, with the modification that the accused-appellant should be given 4/5 credit for the period of preventive imprisonment he had undergone pursuant to Rep. Act No. 6127, approved on June 17, 1970. With proportionate costs against the appellant in this instance.

Makasiar, Aquino, Guerrero, Abad Santos, Escolin and Cuevas, JJ., concur.

Endnotes:

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1. Rollo, pp. 131, 148.

2. tsn of March 13, 1970, pp. 1286-1306.

3. Exhibit "12."

4. tsn of Ang 26, 1969, pp. 239-240.

5. tsn of Aug. 5, 1969, p. 124.

6. tsn of Oct. 7, 1969, pp. 630-631.

7. tsn of March 13, 1970, p. 1306.

1. REMEDIAL LAW; CRIMINAL PROCEDURE; PLEA OF GUILTY; IMPROVIDENT IN CASE AT BAR. — Without explaining the import of his plea of guilty and calling witnesses to convince itself of the culpability of the accused-appellant, the court rendered judgment convicting the accused-appellant Serna and imposing upon him the supreme penalty of death. The trial judge did not even bother to ask appellant whether he understood his plea as the transcript merely stated that after the information was read in English and translated to the Samar dialect, appellant pleaded guilty.

2. ID., ID.; ID.; DUTY OF THE COURT TO REQUIRE PROSECUTION TO PRESENT EVIDENCE IN CAPITAL OFFENSE. — Considering that the appellant was charged with an offense punishable by death, the trial court should have required the prosecution to present its evidence to prove the extent of his culpability. The taking of such testimony is the prudent and proper course to follow for the purpose of establishing not only the guilt but also the precise culpability of the defendant (People v. Alibasa, 118 SCRA 183). Where a plea of guilty is entered by defendant, in cases where the capital penalty may be imposed, the court should make certain that defendant fully understands the nature of the charge preferred against him and the character of the punishment provided by law before it is imposed. The trial court should therefore call witnesses for the purpose of establishing the guilt and degree of culpability of the defendant, not only to satisfy the trial judge, but also to aid the Supreme Court in determining whether the accused really and truly understood and comprehended the meaning, full significance and consequences of his plea (People v. Gonzales, 92 SCRA 527).

AQUINO, J., dissenting:chanrob1es virtual 1aw library

1. CRIMINAL LAW; ROBBERY WITH DOUBLE HOMICIDE; PENALTY; CASE AT BAR. — The trial court sentenced Serna to death on the assumption that recidivism and use of a motorized banca were aggravating. As admitted by the Solicitor General, recidivism is not aggravating because the information does not allege the prior crime for which Serna was convicted. The Solicitor General also admits that use of motorized banca is not aggravating because it was used as means of flight, not as a means for the commission of the crime. He says that treachery is generic aggravating but then it is offset by plea of guilty. The fact that there was more than one homicide should not be aggravating because that circumstance is not mentioned in Article 14 of the Revised Penal Code. So, the Solicitor General recommends that Serna be punished with reclusion perpetua. There was no improvident plea because Serna understood the consequences of his plea. The rule is stated in People v. Palupe, 69 Phil. 703, 705. In the instant case, the offense was committed in 1970. After 14 years, no purpose would be served in remanding the case to the lower court for the presentation of the prosecution’s evidence. Serna should be sentenced to reclusion perpetua.

In Criminal Case No. 150 of the Court of First Instance of Samar, the accused-appellant Rafael Serna together with Antonio Cipriano were charged with the crime of Robbery with Double Homicide, allegedly committed as follows:jgc:chanrobles.com.ph

"That on or about the 28th day of November, 1970 at nighttime, in the Municipality of Catbalogan, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring, confederating together and mutually helping one another with intent to gain, and by means of force, violence against and intimidation of persons, did then and there willfully, unlawfully, feloniously and forcibly take, steal and carry away with them money in cash amounting to Eighty (P80.00) Pesos, from the hands of Romualdo Villones, belonging to him and one Leonardo Carlos, while said Romualdo Villones was paying for the fish they bought from a fisherman, to the damage and prejudice of the said owners in the aforementioned sum of P80.00, Philippine currency; that on the occasion of the said robbery and for the purpose of enabling them to take, steal and carry away with them the said amount, herein accused, in pursuance of their conspiracy, with treachery and intent to kill, did then and there willfully, unlawfully and feloniously attack, assault and stab several times said Romualdo Villones and Leonardo Carlos with a dagger and a bolo with which the said accused had conveniently provided themselves for the purpose, thereby inflicting upon said Romualdo Villones and Leonardo Carlos several injuries on their bodies, which injuries caused their death.

That in the commission of the crime, the aggravating circumstance that it was committed with the use of a motorized banca as a means for the flight or concealment of the offenders and also the aggravating circumstance of recidivism, as regards accused Rafael V. Serna, were present, the latter having been previously convicted by final judgment in the Court of First Instance of Manila, and was sentenced to an imprisonment from Ten (10) years to Seventeen (17) years in 1958." 1

Upon arraignment, appellant Rafael Serna and co-accused Antonio Cipriano pleaded guilty to the crime charged. Both invoked the mitigating circumstance of plea of guilty. Immediately thereafter, the court rendered judgment convicting the two accused of robbery with double homicide, the dispositive portion of which reads, as follows:jgc:chanrobles.com.ph

"WHEREFORE, the Court hereby finds Rafael V. Serna and Antonio O. Cipriano guilty beyond reasonable doubt as principals of the consummated crime of Robbery with Double Homicide defined and penalized under Article 294, paragraph 1, of the Revised Penal Code, and considering the mitigating circumstance of plea of guilty in favor of the accused Antonio O. Cipriano and the aggravating circumstance of the use of a motorized banca to offset the same, hereby sentences Antonio O. Cipriano to Reclusion Perpetua and with respect to the accused Rafael V. Serna, considering the two aggravating circumstances against him, namely, recidivism and use of a motorized banca in the commission of the crime, one of which is offset by the mitigating circumstance of plea of guilty, hereby sentences Rafael V. Serna to death. Both accused shall suffer the accessory penalties provided by law and to pay the heirs of Romualdo Villones in the amount of P12,000.00 and the heirs of Leonardo Carlos in another sum of P12,000.00 plus P80.00 as indemnities . . .



Death penalty having been imposed on Rafael V. Serna, the Clerk of Court shall, pursuant to the Rules of Court, transmit this case to the Honorable Supreme Court.

SO ORDERED." 2

Thereupon, this case was elevated to the Court for automatic review of the death penalty imposed on the defendant-appellant.

The records of this case show that after the information was read to the appellant in English and translated in Samar dialect, the appellant pleaded guilty. Thereafter, the Fiscal asked that the plea of guilty be considered mitigating, at the same time, the Fiscal asked the Court to consider two aggravating circumstances against the accused Serna. 3

Without explaining the import of the plea of guilty and calling witnesses to convince itself of the culpability of the accused-appellant, the court rendered judgment convicting the accused-appellant Serna and imposing upon him the supreme penalty of death. The trial judge did not even bother to ask appellant whether he understood his plea as the transcript merely stated that after the information was read in English and translated to the Samar dialect, appellant pleaded guilty.

Considering that the appellant was charged with an offense punishable by death, the trial court should have required the prosecution to present its evidence to prove the extent of his culpability. The taking of such testimony is the prudent and proper course to follow for the purpose of establishing not only the guilt but also the precise culpability of the defendant. 4

Where a plea of guilty is entered by the defendant, in cases where the capital penalty may be imposed, the court should make certain that defendant fully understands the nature of the charge preferred against him and the character of the punishment provided by law before it is imposed. The trial court should therefore call witnesses for the purposes of establishing the guilt and degree of culpability of the defendant, not only to satisfy the trial judge, but also to aid the Supreme Court in determining whether the accused really and truly understood and comprehended the meaning, full significance and consequences of his plea. 5

WHEREFORE, the judgment under automatic review is hereby SET ASIDE and the case REMANDED to the trial court for further proceedings.

SO ORDERED.

Fernando, C.J., Makasiar, Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.

Teehankee, J., took no part.



AQUINO, J., dissenting:chanrob1es virtual 1aw library

I dissent with due deference to Mr. Justice Concepcion, Jr.

The trial court convicted Rafael V. Serna and Antonio O. Cipriano of robbery with double homicide because of their plea of guilty. It sentenced Cipriano to reclusion perpetua. He did not appeal.

It sentenced Serna to death on the assumption that recidivism and use of a motorized banca were aggravating. As admitted by the Solicitor General, recidivism is not aggravating because of the information does not allege the prior crime for which Serna was convicted.

The Solicitor General also admits that use of motorized banca is not aggravating because it was used as means of flight, not as a means for the commission of the crime. He says that treachery is generic aggravating but then it is offset by plea of guilty.

The fact that there was more than one homicide should not be aggravating because that circumstance is not mentioned in article 14 of the Revised Penal Code.

So, the Solicitor General recommends that Serna be punished with reclusion perpetua.

There was no improvident plea because Serna understood the consequences of his plea. The rule is stated in People v. Palupe, 69 Phil. 703, 705:jgc:chanrobles.com.ph

"Cuando un acusado admite libre y voluntariamente su delito con pleno conocimiento de la indole exacta del mismo, su admision, o mejor dicho, su confesion, hecha en dichas circunstancias, es suficiente para justificar la imposicion de la pena que para dicho delito hay prescrita por la ley.

"Es discrecional en los juzgados permitir la presentacion de pruebas adicionales despus que el acusado haya confesado formalmente su delito.

"Tan solo es prudente y necesario tal vez, requerir la presentacion de otras pruebas adem s de las que el mismo acusado suministra mediante su confesion libre y voluntaria, cuando hay un somo de duda de que al hacerla, no lo hace estando bien impuesto de los verdaderos hechos, y de la consecuencias de su acto." (See People v. Duaban, L-31912, August 24, 1979, 92 SCRA 743.)

In the instant case, the offense was committed in 1970. After 14 years, no purpose would be served in remanding the case to the lower court for the presentation of the prosecution’s evidence.

Serna should be sentenced to reclusion perpetua.

Endnotes:

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1. Original Record, pp. 30-31.

2. Original Record, pp. 33-35.

3. tsn., Feb. 17, 1971, p. 4.

4. People v. Alibasa, 118 SCRA 183.

5. People v. Gonzales, 92 SCRA 527.

1. REMEDIAL LAW; EVIDENCE; PROOF BEYOND REASONABLE DOUBT NECESSARY FOR CRIMINAL CONVICTION; NOT MET IN CASE AT BAR. — The three kinds of instruments may have been used by the victim’s attackers, do not however conclusively establish the number of participants responsible for inflicting the injuries found upon the body of the victim. At most, it could merely serve as a basis for concluding, but not conclusive, that more than one person may have inflicted the said injuries. But since Mallorico Mozar had already pleaded guilty thereby owning sole responsibility for the killing of the victim, then who between Felix and Bartolome must or could be made additionally liable for the victim’s death? While the finger of suspicion points to both or either one of them, suspicion alone however strong could not amount to proof beyond reasonable doubt sufficient enough to serve as a basis for conviction. The presumption of innocence in favor of the appellant Bartolome Mozar cannot be said to have been overwhelmed by the necessary quantum of evidence prescribed by law.

2. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; CONSPIRACY AS A BASIS FOR CONVICTION; MUST BE ESTABLISHED BY POSITIVE EVIDENCE. — Settled is the rule that proof of previous agreement to commit the crime is not necessary for conspiracy may be deduced from the facts and circumstances surrounding the commission of the offense. Concert of action at the moment of consummating the crime and the form and manner in which assistance is rendered to the person inflicting the fatal wound may determine complicity (People v. Tirol, 102 SCRA 558). And where conspiracy is duly established, the role played by each conspirator is of no moment (People v. Pamilgan, 102 SCRA 578). Conspiracy, however, must be established by positive evidence and conviction pursuant thereto must be founded on facts, not on mere inferences and presumption (People v. Marquez, 109 SCRA 91).

3. ID.; ID.; ID.; CRIMINAL LIABILITY OF PARTICIPANTS IN ABSENCE THEREOF. — In the case at bar, other than conjectures and assumptions, no satisfactory and convincing evidence exists as to what appellant Bartolome Mozar had done that will warrant a conclusion of his being in conspiracy with appellant Felix Mozar. There being no conspiracy, criminal liability of the appellants must be individual and separate.

4. ID.; ID.; TREACHERY; APPRECIATED DESPITE FRONTAL ATTACK. — We agree with the trial court that treachery was present despite the attack being frontal and/or face to face since it was so sudden and unexpected and without the victim being afforded the opportunity to defend himself against said attack (People v. Verges, 105 SCRA 744).

5. ID.; ID.; EVIDENT PREMEDITATION; ACCIDENTAL ENCOUNTER NEGATES EXISTENCE THEREON. — As regards evident premeditation, the evidence on hand failed to show elements thereof having attended the commission of the offense in the case at bar (People v. Roncal, 79 SCRA 509). The encounter between the victim and his assailants was merely accidental. It occurred while the latter was merely searching for the missing fish net.

6. ID.; ID.; NIGHTTIME; NOT APPRECIATED WHEN NOT INTENTIONALLY SOUGHT. — Nighttime not having been intentionally sought for in order to better accomplish their criminal design (People v. Ang, 108 SCRA 267) may not be considered to have aggravated the criminal liability of the offenders.

7. ID.; MITIGATING CIRCUMSTANCES; VOLUNTARY SURRENDER; NOT ATTENDANT IN CASE AT BAR. — The lower court committed no error in disregarding voluntary surrender. For while it is true that after the commission of the offense appellant Felix Mozar went to the Municipal Building of Mainit yet he did so for the purposes of surrendering his son, Mallorico, and not to submit himself to the authorities (in connection with the killing of the victim) which is one of the essential requisites of voluntary surrender (People v. Hanasan, 29 SCRA 534).

8. ID.; ID.; PASSION AND OBFUSCATION; DISREGARDED WHERE THE ACT PRODUCING OBFUSCATION IS FAR REMOVED FROM THE COMMISSION OF THE CRIME. — With respect to passion and obfuscation, it must be brought by causes naturally producing in a person powerful excitement such that he loses his reason and self-control thereby diminishing the exercise of his will power (US v. Diaz, 15 Phil. 123). The act producing the obfuscation must not be far removed from the commission of the crime by a considerable length of time, as in the instant case, during which the accused might have recovered his normal equananimity and to preclude a realization of the wrongfulness of the act taken (People v. Pareja, 30 SCRA 163). As correctly pointed out by the prosecution appellant’s loss of his fishing net and paraphernalia occurred long before the killing of the victim. The trial court therefore correctly disregarded said mitigating circumstances in favor of Appellant.

9. CIVIL LAW; DAMAGES; INDEMNITY FOR DEATH INCREASED TO P30,000.00. — In its judgment of conviction, the court a quo ordered an indemnification of P3,000.00. That. should not be increased to P30,000.00 (People v. de la Fuente, 126 SCRA 518; People v. Garden, G.R. No. L-58172, May 28, 1984; People v. Tumaliwan, G.R. No. L-58818, June 22, 1984).

Felix Mozar and Bartolome Mozar, together with Mallorico Mozar (who pleaded GUILTY upon being arraigned and was thereafter accordingly sentenced) 1 were charged with and prosecuted for MURDER before the defunct Court of First Instance of Surigao del Norte under Criminal Case No. 4330, for allegedly having conspired, confederated and mutually helped one another in attacking and stabbing Rudy Salino thereby inflicting upon him physical injuries which caused the death of the latter.

Tried after pleading "NOT GUILTY" upon arraignment, they were convicted as charged and thereafter sentenced to reclusion perpetua with all the accessories prescribed by law; to indemnify the heirs of the victim Rudy Salino, jointly and severally, in the sum of P8,000.00 with no subsidiary imprisonment in case of insolvency; and to pay two-thirds (2/3) of the costs.

They now come before US, through the instant appeal, assailing the aforesaid judgment of conviction contending among others, that the trial court erred (1) in giving credence to the testimony of Alfredo Anuario, the prosecution witness; (2) in finding that conspiracy existed among the three accused; (3) in considering nighttime, abuse of superior strength and treachery to have attended the commission of the crime; and (4) in failing to consider the mitigating circumstances of passion and obfuscation and voluntary surrender in favor of the appellants.

The prosecution’s version of the stabbing incident as summarized by the Hon. Solicitor General in the appellee’s brief 2 runs thus —

"Early in the morning of October 25, 1969, the body of Rudy Salino was found slumped face down, on the floor of a boat locally known in Surigao del Norte as "baroto", somewhere at Lake Mainit. The boat containing Salino’s body was towed by Barrio Captain Jimmy Salino and Pat. Ernesto Salino from the lake to barrio Mansayao where Pat. Cresencio Belbar of the Mainit Police Department had stationed himself and waited for the body for initial investigation (tsn, page 14, August 20, 1970). Belbar took note of the general appearance of the cadaver and drew a sketch (Exh. "C", folder of exhibits) thereby showing the location of the inflicted wound after which he had it brought to the house of Maximo Salino where a postmortem examination was conducted by Dr. Felixberto Dumadag (tsn, pp. 14-15, ibid; pp. 68-70, August 21, 1970).

Events that transpired earlier reveal that at about seven o’clock in the evening of October 24, 1969, Rudy Salino, accompanied by Alfredo Anuario, was riding on a "baroto" bound for the poblacion of Mainit from Mansayao to buy medicine for his ailing child (tsn, pp. 91-93, August 21, 1970). The two were paddling the boat with Anuario steering the same. After negotiating some two hundred yards from Mansayao, the two met Felix Mozar, Bartolome Mozar (appellants herein) and Mallorico Mozar (convicted ahead) from the opposite direction. Coming to a hailing distance with each other, Rudy Salino, the victim, greeted Felix Mozar and asked the latter where they were going. Instead of giving an answer to Salino’s greeting, the Mozars steered their own "baroto" nearer to that of Salino and Anuario. At a standing position, Felix Mozar, now within reach of Salino, suddenly hurled a spear at the latter, hitting him in the abdomen. At this juncture, and taking Felix Mozar’s sudden attack as a cue, Bartolome Mozar and Mallorico Mozar jumped into and boarded Salino’s boat and started hitting him with weapons in their hands, consisting of a paddle and a bolo, respectively. Alfredo Anuario, gripped with fear and sensing something drastic might happen to him, jumped overboard and swam to the nearest shore which was some sixty meters away. He then ran straight to his house which was about half a kilometer away. After regaining his composure, he reported the matter to Maximo Salino, father of the victim (tsn, pp. 94-97, August 21, 1970)."cralaw virtua1aw library

The defense, on the other hand, thru the combined testimonies of Felix Mozar, Bartolome Mozar and Conrado Palasan, sought to establish —

". . . that sometime past 5:00 p.m. of October 24, 1969, Felix Mozar accompanied by his sons Bartolome and Mallorico, went out in his boat to Lake Mainit at a spot called Haponan Sili, a fishing ground, to find out if his fishing net which he had previously laid out, had some catch. Of the three, only Mallorico Mozar carried a bolo. Mallorico Mozar was sitting at the front, Felix Mozar at the middle, while Bartolome Mozar was steering; that they reached Haponan Sili at about 6:30 p.m. but could not find the fishing net at the spot where it was laid. After looking around for some time, Mallorico Mozar pointed to two persons who were also riding in a boat and coming towards their direction; that they steered their boat towards the other boat Mallorico Mozar saw, and at a distance of about 30 meters from each other, they recognized the occupants of the other boat to be Rudy Salino and Alfredo Anuario; that the other boat carrying Rudy Salino and Alfredo Anuario suddenly turned back, and it was at that time that they saw in the boat of Rudy Salino and Alfredo Anuario the fishing net of Felix Mozar, the ones marked as Exhibit "D" and "D-1" ; that they gave chase to the boat of Rudy Salino and Alfredo Anuario; that they overtook the other boat, and one fathom before they actually overtook the other boat, Alfredo Anuario dived into the water and swam towards the nearest shore; that before Alfredo Anuario actually dived into the water, Felix Mozar called out at the two, Rudy Salino and Alfredo Anuario, but the latter did not answer; that instead, as the two boats edged near each other, Rudy Salino struck Felix Mozar with a paddle: that Felix Mozar was hit at the left wrist, which blow rendered him unconscious; that a medical certificate (Exh. "3") was issued by Dr. Dumadag on account of this injury; and that at this instance, Mallorico Mozar began hitting Rudy Salino with his bolo and all that he, Felix Mozar, in his unconscious state, could hear was the sound of the blows hitting Rudy Salino."cralaw virtua1aw library

The prosecution’s case against the appellants gravitates principally upon Alfredo Anuario, an admitted companion of the victim on the fatal night of the incident in question, whose testimony have been heavily relied upon by the trial court. This witness testified that at about 7:00 o’clock in the evening of October 22, 1969, he was requested by the deceased Rudy Salino to go with him to the town of Mainit for the purpose of buying medicine for the latter’s child who was then afflicted with fever. He agreed and they used a boat locally known as "baroto", which the two of them paddled in proceeding to their destination. On their way and after having travelled about 200 meters, they met another "baroto." On board this "baroto" were accused Felix Mozar and his two sons, Mallorico and Bartolome. After the two "barotos" came nearer to each other and at a point where they were merely about two fathoms from each other, Rudy Salino asked Felix Mozar where he was going. Felix Mozar did not answer. Instead, he immediately stood up, grabbed something "as small as a thumb but about one fathom. long," and thrust it against Rudy Salino who was then sitting at the time, and almost simultaneously shouted," son of a bitch." Rudy Salino was hit at the stomach. It was at that moment when Mallorico Mozar and Bartolome Mozar boarded Salino’s "baroto" and started hacking Rudy Salino, but could not tell what instruments were used by them. Because he was afraid that he may be involved, he immediately dived into the water and swam ashore. 3

The pertinent portion of his testimony particularly inculpatory against Mallorico and Bartolome Mozar, runs thus —

"Q: After Rudy Salino was hit by the thrust of Felix Mozar, what happened if there was any?

A: Mallorico Mozar and Bartolome Mozar immediately went to our boat and started hacking the victim Rudy Salino.

Q: What instrument was used by Mallorico Mozar if you still remember?

A: What I know is that they were hacking Rudy Salino.

Q: What else happened?

A: Because I was afraid that they will include me, I immediately dive into the water.

Q: After you dive into the water, what did you do?

A: I went or I swam to the shore." 4



Q: Did you observe what instrument was used by Bartolome Mozar in attacking the late Rudy Salino?

A: Mallorico Mozar was bringing a bolo while Bartolome Mozar was bringing a paddle.

Q: Did you see what Bartolome Mozar do with the paddle?

A: (Witness demonstrated as if he was holding with his right hand the paddle and immediately rode to their boat.’" 5

Considering the hazy and vague narration that characterized Anuario’s declaration — particularly with respect to the manner of attack and instruments used — the issue that presents itself for a preemptive resolution is this — Where was Anuario at the time the victim was allegedly assaulted by the appellants?

From his direct testimony, he would like us to believe that he was beside the victim inside the latter’s "baroto" when the appellants ganged up and assaulted the victim. Cross-examined however on this same point, his admission reads as follows:jgc:chanrobles.com.ph

"Q: You said you dived into the water and swam to the shore, was in this occasion that Felix Mozar uttered those words in an angry manner?

A: Not yet.

Q: Did you not dive from the boat immediately when Felix Mozar was already in your boat?

A: That was at a time when Felix Mozar stood up when they were already near and said, `son of a bitch’ and then thrust the instrument to the body of Rudy Salino.

Q: So you were already at the lake when you heard those words uttered by Felix Mozar, ‘You are a son of a bitch.’

Fiscal Mantilla:chanrob1es virtual 1aw library

Misleading, Your Honor, We object.

Court:chanrob1es virtual 1aw library

Objection sustained.

Atty. Egay:chanrob1es virtual 1aw library

Q: Now, you said that after diving from the boat, you swam to the shore?

A: When Rudy Salino was hit in the abdomen, I immediately jumped to the water.

Q: And when you jumped into the water, you swam back to barrio Mansayao, is that correct?

A: I swam towards the barrio with a distance of 40 meters from the barrio Mansayao" 6

Redirect examination of this witness was undertaken by the prosecution. But his aforesaid damaging admission to the effect that "When Rudy Salino was hit in the abdomen, I immediately jumped to the water" which contradicts his previous statement on direct examination on the same point, was never amplified much less explained. In fact, there was not even a mere attempt, to show why and how he was still able to see and witness the hacking (not stabbing) of the victim by appellant Bartolome and Mallorico Mozar when, as admitted by him, right after the victim Salino was hit in the abdomen, he (Anuario) immediately jumped to the water.

Against that backdrop, we are far from convinced that Anuario actually saw what he narrated before the trial court — the hacking of the victim by Mallorico to which appellant Bartolome was allegedly a participant.

But what appears to have totally demolished Anuario’s credibility on this specific point — hacking by Bartolome and Mallorico of the victim — is the nature of the injuries sustained by the victim. Post-mortem examination conducted upon the cadaver of the victim by Dr. Dumadag, Jr. failed to reveal any wound produced by hacking. On the contrary, what this medico-legal witness found were one (1) punctured wound, twelve (12) stab wounds, and abrasions. Certainly, if the victim was continuously hacked by appellants Bartolome and Mallorico as claimed by Anuario, it is inconceivable as to why no hack wounds have been sustained by the victim. For to hack is to cut with repeated or regular blows; to severe with repeated blows or to cut with blows. 7 The character of said injuries together with the afore-described circumstances unerringly point to the inevitable conclusion - that Anuario was no longer at the scene of the incident when the victim was allegedly attacked by Mallorico and appellant Bartolome.

Another factor which adds credence to this view is the fact that Anuario suffered no injury whatsoever .. Not even a scratch or minor bruises. If he was still beside the victim inside the latter’s `baroto’ when the victim was attacked, we see no reason as to how he could miraculously escaped injury when he too could be a suspect in the taking of Felix Mozar’s fishing net.

Aside from this Alfredo Anuario, no other eye witness appeared to have been presented by the prosecution. The only inculpatory evidence then left against appellant Bartolome Mozar is that coming from Dr. Felixberto Dumadag, Jr., the Municipal Health Officer of Numancia, Surigao del Norte, who conducted an autopsy on the cadaver of the victim. After dwelling at length on the various injuries found by him in the course of his autopsy examination, this witness concluded that from the nature of the injuries sustained by the victim, more or less, three (3) kinds of instruments may have been used by the victim’s attackers, namely: (1) a blunt instrument causing abrasions in the xyphoid process of the sternum; (2) a sharp pointed instrument that caused the punctured wound; and (3) a sharp bladed instrument which caused the multiple stab wounds. 8 On his conclusion, there can be no quarrel with this medical examiner since his aforesaid conclusion appeared to be supported by the very nature of the injuries sustained by the victim. For instance, the punctured wound on the right part of the chest just below the nipple which is two inches therefrom, 9 could have been caused by sharp instrument; the rest of the other injuries under Item Nos. 4, 5, 6, 7, 8, 10, 11, 12, 14 and 15, by a sharp bladed instrument; and those appearing under Item Nos. 9 and 13 which are abrasions on the thorax, by a blunt instrument. That three kinds of instruments may have been used by the victim’s attackers, do not however conclusively establish the number of participants responsible for inflicting the injuries found upon the body of the victim. At most, it could merely serve as a basis for concluding, but not conclusive, that more than one person may have inflicted the said injuries. But since Mallorico Mozar had already pleaded guilty thereby owning sole responsibility for the killing of the victim, then who between Felix and Bartolome must or could be made additionally liable for the victim’s death? While the finger of suspicion points to both or either one of them, suspicion alone however strong could not amount to proof beyond reasonable doubt sufficient enough to serve as a basis for conviction. The presumption of innocence in favor of the appellant Bartolome Mozar cannot be said to have been overwhelmed by the necessary quantum of evidence prescribed by law. 10

But may not appellant Bartolome be held criminally liable because of the charge of conspiracy? Our answer is in the negative. Settled is the rule that proof of previous agreement to commit the crime is not necessary for conspiracy may be deduced from the facts and circumstances surrounding the commission of the offense. Concert of action at the moment of consummating the crime and the form and manner in which assistance is rendered to the person inflicting the fatal wound may determine complicity. 11 And where conspiracy is duly established, the role played by each conspirator is of no moment. 12 Conspiracy, however, must be established by positive evidence and conviction pursuant thereto must be founded on facts, not on mere inferences and presumption. 13 In the case at bar, other than conjectures and assumptions, no satisfactory and convincing evidence exists as to what appellant Bartolome Mozar had done that will warrant a conclusion of his being in conspiracy with appellant Felix Mozar. There being no conspiracy, criminal liability of the appellants must be individual and separate.

Having disposed of the imputation against appellant Bartolome Mozar, we now come to the case of Felix Mozar. Similar to that of Bartolome, the People’s case against Felix Mozar centers also on the testimony of Alfredo Anuario. But whereas we could not swallow `hook, line and sinker’ Anuario’s version with respect to the participation of appellant Bartolome, we find his narration with respect to Felix credible enough. Reliance on the portion of his testimony with respect to Felix Mozar’s role in the killing of the victim, does not violate any rule of evidence whatsoever. For the fact that a witness may have lied at one instance on certain point does not make his entire testimony totally incredible and therefore inadmissible.

"It is perfectly reasonable to believe the testimony of a witness with respect to some facts and disbelieve it with respect to other facts. And it has been aptly said that even when witnesses are found to have deliberately falsified in some material particulars, it is not required that the whole of their uncorroborated testimony be rejected, but such portions thereof deemed worthy of belief may be credited." 14

Anuario’s testimony that upon Felix Mozar’s ‘baroto’ approaching that of the victim’s, Felix stood up, grabbed something, and then immediately thrust it against Rudy Salino 15 appeared undiscredited despite extensive and piercing cross-examination. Anuario at that time was still with the victim inside the latter’s ‘baroto’. Anuario’s story with respect to Felix’s role finds ample and vivid corroboration in injuries marked as Item No. 2 appearing in Exhibit "A" 16; which is a punctured wound "at the right side of the stomach towards the right part of the chest just below the nipple about 2 inches therefrom." As testified to by Dr. Dumadag, Jr. this wound is fatal considering its depth and location and the vital organs in that region. It is enough to produce death. It is a punctured wound caused by a sharp pointed instrument inflicted by one who must have stationed himself in front of the victim. 17 This is the injury produced by the sharp pointed instrument hurled by appellant Felix at the victim.

Aside from being positively identified, enough motivation exists on the part of appellant Felix Mozar to "deliver the works" on the victim in an attempt to get even with the latter. The loss of his fishing net on that fatal night in question is not merely an isolated one. He was the victim of previous losses before and believing that the deceased was likewise the perpetrator of and/or has something to do with his present and earlier losses, and feeling aggrieved by the affront against his property right, he has chosen to take the law unto his hands thereby penalizing the victim without recourse to legal and judicial processes. It is but fitting and proper therefore that he should suffer the consequences of such transgressions to impart upon him that ours is a society of laws and not of men.

In his attempt to exculpate himself from criminal liability, Felix Mozar claimed that he was not able to inflict any wound upon the victim because when they overtook him, the latter immediately struck him thereby hitting him at his left wrist thus rendering him unconscious. In support of his assertion Felix Mozar submitted a medical certificate (Exh. "C") issued by Dr. Felixberto Dumadag, the same physician who conducted the autopsy of the victim, which states that a certain Felix Mozar.

"was inflicted with CONTUSION AND SWELLING at the left wrist region; and that.



said physical injury will require medical attendance for less than one (1) week."cralaw virtua1aw library

Appellant Felix Mozar’s aforesaid entreaty failed to persuade us. On the contrary, the injury described in the aforesaid medical certificate hardly supports his story that the blow delivered against him knocked him down to unconsciousness. We therefore find his excuse too lame a pretense as to warrant belief in it.

The charge against the appellants is that of MURDER, the attack or the assault being allegedly attended by treachery and evident premeditation. We agree with the trial court that treachery was present despite the attack being frontal and/or face to face since it was so sudden and unexpected and without the victim being afforded the opportunity to defend himself against said attack. 18 As regards evident premeditation, the evidence on hand failed to show elements thereof having attended the commission of the offense in the case at bar. 19 The encounter between the victim and his assailants was merely accidental. It occurred while the latter was merely searching for the missing fish net. Similarly, nighttime not having been intentionally sought for in order to better accomplish their criminal design, 20 may not be considered to have aggravated the criminal liability of the offenders.

Anent appellant’s fourth assignment of error, the lower court committed no error in discarding voluntary surrender. For while it is true that after the commission of the offense, appellant Felix Mozar went to the Municipal Building of Mainit yet he did so for purposes of surrendering his son, Mallorico, and not to submit himself to the authorities (in connection with the killing of the victim) which is one of the essential requisites of voluntary surrender. 21

With respect to passion and obfuscation, it must be brought by causes naturally producing in a person powerful excitement such that he losses his reason and self-control thereby diminishing the exercise of his will power. 22 The act producing the obfuscation must not be far removed from the commission of the crime by a considerable length of time, as in the instant case, during which the accused might have recovered his normal equananimity and to preclude a realization of the wrongfulness of the act taken. 23 As correctly pointed out by the prosecution, appellant’s loss of his fishing net and paraphernalia occurred long before the killing of the victim. The trial court therefore correctly disregarded said mitigating circumstances in favor of the Appellant.

In its judgment of conviction, the court a quo ordered an indemnification of P8,000.00. That should now be increased to P30,000.00. 24

WHEREFORE, and except as thus modified, the judgment appealed from is hereby AFFIRMED but only insofar as appellant Felix Mozar is concerned; and REVERSED with respect to appellant Bartolome Mozar, who is hereby ACQUITTED, his guilt not having been proved beyond reasonable doubt.

It appearing that Bartolome Mozar is detained, his immediate discharge from custody is hereby ordered unless held for some other offense or offenses.

SO ORDERED.

Makasiar , Concepcion, Jr., Guerrero, Abad Santos and Escolin, JJ., concur.

Aquino, J., took no part.

Endnotes:

---

1. 17 years, 4 months and 1 day to 20 years of Reclusion Temporal per Decision dated June 2, 1970 but later modified to 12 years of Prision Mayor to 20 years of Reclusion Temporal per Order dated June 18, 1970.

2. Plaintiff-appellee’s brief - pages 5, 6 and 7.

3. Pages 91, 92, 93 & 94, TSN, Hearing of August 21, 1970.

4. Page 96, Ibid.

5. Page 96, TSN, Hearing of August 21, 1970.

6. Page 109, TSN, Hearing of August 21, 1970.

7. Webster Third International Dictionary, 1976 Edition, p. 1018.

8. Page 59, TSN, Hearing of August 21, 1970.

9. Item No. 2, Exhibit A.

10. People v. Agda, 111 SCRA 330.

11. People v. Yu, 80 SCRA 382; People v. Tirol, 102 SCRA 558.

12. People v. Pamilgan, 102 SCRA 578.

13. People v. Marquez, 109 SCRA 91.

14. People v. Malillos, No. L-26568, July 29, 1968, 24 SCRA 133, 139-140; People v. Mabuyo, No. L-29129, May 8, 1975, 63 SCRA 532.

15. Page 94, TSN, Hearing of August 20, 1970.

16. Post-mortem Report.

17. Page 38, TSN, Hearing of August 20, 1970.

18. People v. Valdemorro, 102 SCRA 121; People v. Verges, 105 SCRA 744.

19. People v. Roncal, 79 SCRA 509.

20. People v. Paga, 79 SCRA 520; People v. Ang, 108 SCRA 267.

21. People v. Hanasan, 29 SCRA 534.

22. US v. Salandanan, 1 Phil. 464; US v. Diaz, 15 Phil. 123.

23. People v. Pareja, 30 SCRA 163.

24. People v. de la Fuente, 126 SCRA 518; People v. Garden, G.R. No. L-58172, May 28, 1984; People v. Tumaliwan, G.R. No. L-58818, June 22, 1984.

1. REMEDIAL LAW; EVIDENCE; CONFESSION; ADMISSIBILITY THEREOF; FAILURE TO SUBMIT TO MEDICAL EXAMINATION BELIES MALTREATMENT IN EXTRACTION THEREOF. — In impugning their extrajudicial confessions, appellants testified to alleged third degree treatment from the P.C. investigators. But as aptly observed by the Solicitor General — "Appellants failed to show any injury indicative of the maltreatment allegedly suffered by them. If, as appellant Alfredo Sabaybay claimed that he was struck, boxed at the stomach, at the left mandible, and his mouth bled rendering him unconscious, it is strange — and he himself admits this — that after he was discharged from the custody, he did not submit himself to any doctor for examination or treatment. This fact belies such claim of maltreatment. While appellant claimed having gone instead to an "herbolario" who gave him a general body massage the latter was not produced to corroborate such assertion. Appellant Alfredo Piano likewise admitted that he did not submit to any doctor for physical examination. Nor does the evidence for appellant Dalmacio Maalihan show that he ever sought medication by reason of his having been manhandled."cralaw virtua1aw library

2. ID.; ID.; ID.; ID.; NOT IMPAIRED WHERE PROMISE OF IMMUNITY IS NOT GIVEN BY THE PROSECUTING OFFICER. — As to the claim of Sabaybay that his extra-judicial statement was obtained through promise of immunity, the record is bereft of any showing that the PC investigators ever promised immunity to him. And even assuming that the investigators did make such proposal, the promise of immunity by one who is not a prosecuting officer and therefore not in a position to comply with such promise, cannot be interposed as an objection to the admissibility of the confession.

3. ID.; ID.; CREDIBILITY OF WITNESSES; ALIBI, CANNOT PREVAIL OVER POSITIVE IDENTIFICATION. — The alibi of appellants cannot but be a mere afterthought foisted to avoid the damaging effects of their extra-judicial confessions. Easy to concoct, their alibi cannot prevail over the positive identification of the accused by witnesses. In the case at bar, Dalmacio Maalihan and Alfredo Piano were pointed to by Victorio Canabe as among the three men who came to his house on September 25, 1958. Their co-accused Alfredo Sabaybay likewise identified them as two of the hit men who, after he had indicated to them the victim, tracked down on their prey.

4. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES, TREACHERY; PRESENT IN CASE AT BAR. — From the evidence on record, We are satisfied that appellants Maalihan and Piano are guilty of the crime of triple murder, qualified by treachery. They gunned down Luis Arejola, Roman Mora and Narciso Buendia in a sudden volley of gunfire trained at their back, making it impossible for the victims to defend themselves from the aggression.

5. ID.; ID.; PRIZE, REWARD OR PROMISE: NOT ATTENDANT IN CASE AT BAR. — We find the evidence too inadequate to establish that the crime was committed in consideration of prize, reward or promise.

6. ID.; ID.; UNINHABITED PLACE; NOT PRESENT. — The trial court likewise erred in taking into account the aggravating circumstance of "uninhabited place." The prosecution failed to prove that the accused intentionally sought the solitude of the place where the crime was committed in order to better attain their purpose (People v. Aguinaldo, 55 Phil. 610).

7. ID.; ID.; BAND, NOT APPRECIATED. — Neither can it be said that the crime was committed by a band. For the circumstance of band to be present, there must be at least four armed malefactors (par. 3, Article 14, Revised Penal Code). The execution of the crime by three armed malefactors does not constitute a band (People v. Pelagio, 20 SCRA 153).

8. ID.; PERSONS CRIMINALLY LIABLE; ACCOMPLICE; PARTICIPATION NOT INDISPENSABLE. — With respect to Alfredo Sabaybay, We do not find sufficient evidence to saddle him with the criminal responsibility of a co-principal. His participation in the crime being limited merely to identifying Luis Arejola to the triggermen, We hold him liable as an accomplice, conformably to the settled rule that those whose participation in the killing was not indispensable to the consummation of the murder are liable as accomplices (People v. Villegas, 2 SCRA 587).

This is a mandatory review of the decision in three separate cases jointly tried by the then Court of First Instance of Camarines Sur, sentencing Dalmacio Maalihan y Cantos, Alfredo Piano y Pilapil and Alfredo Sabaybay to three (3) death penalties each for the murder of Luis Arejola (Criminal Case No. 6320), Roman Mora (Criminal Case No. 6425), and Narciso Buendia (Criminal Case No. 6426).

Another accused, Rufino Marasigan, died during the trial and, on motion of the prosecution, the charges against him were dismissed. 1 Alfredo Maalihan who was at large, was not included in the informations.

The following are the facts disclosed by the records.

At about 6:30 in the morning of September 25, 1958, Luis Arejola went to Bo. Cadian, Pili, Camarines Sur, to personally supervise the harvesting of his land, the ownership of which was being disputed by the Pili Agricultural School and one Maximo Palma. Because of the rumor that the tenants therein, Alfredo Sabaybay, the Longas and the Marasigans, would not deliver his share as owner, Arejola thought it wise to personally supervise the harvesting of said land to enable him to get his share in the produce.

On his way to Cadian, Arejola passed by the house of one Roman Mora in Carunuyan, San Jose, Pili, Camarines Sur, to ask the latter to accompany him to the said land.

In the afternoon of the same day, the lifeless bodies of Luis Arejola, Roman Mora and a certain Narciso Buendia were found in sitio Caboclodan, San Jose, Pili all victims of multiple gunshot wounds. The autopsy performed by Dr. Theo J. Santy, Municipal Health Officer of Pili, showed that the victims died of acute internal hemorrhage, secondary to multiple gunshot wounds. 2

Investigation of the shooting incident was immediately undertaken by elements of the Philippine Constabulary. Valeriano Longa, reportedly the last person contacted by Arejola, was questioned. Longa pointed to Victoria Canabe as the person who could furnish information as to the identity of the malefactors. Canabe was investigated and in a sworn statement 3 given by him during the investigation, he stated that four (4) days before the incident under inquiry, or in the afternoon of September 21, 1958, he and Alfredo Sabaybay met in Naga City and in that meeting the latter informed him that in a few days three men would be coming to his (Canabe’s) house, as they in fact came to his house, in the morning of September 25. They asked him to notify Alfredo Sabaybay of their arrival, which he did. Upon returning to his house, Canabe prepared lunch for the three men in accordance with the instructions given by Sabaybay. After lunch, when the three men took off their shirts, he saw that each had a gun tucked in his waist. After the arrival of Sabaybay that afternoon, the latter and the three men left the house.

At the trial, Canabe identified Dalmacio Maalihan and Alfredo Piano as two of the three men who went to his house on September 25.

The PC officers also investigated Alfredo Sabaybay. He gave a sworn statement, 4 admitting his meeting with the three men in Canabe’s house. He further stated that from Canabe’s residence he and the three men proceeded to the vicinity of the house of Valeriano Longa, where they saw Luis Arejola. Sabaybay identified Luis Arejola to his three companions by pointing to him, in accordance with the instructions given to him by Rufino Marasigan when they met in Naga City on September 21. In that meeting, Marasigan informed Sabaybay of the plan to kill Arejola.

With the description of the killers given by Canabe and Sabaybay, the PC officers arrested Dalmacio Maalihan. In the ensuing investigation Maalihan executed an affidavit, 5 acknowledging his participation in the killings and naming Alberto Maalihan and Alfredo Piano as his companions. Alfredo Piano was likewise apprehended and following said arrest, he too gave a sworn statement. 6

It appears from their affidavits that after Sabaybay had pointed out Luis Arejola to them, they, Dalmacio Maalihan, Alfredo Maalihan and Alfredo Piano trailed Arejola, Mora and Buendia up to sitio Caboclodan. When Arejola looked back, they simultaneously fired at the victims until they ran out of ammunition. This portion of their extrajudicial confessions was later enacted at the place of the crime by Dalmacio Maalihan and Alfredo Piano under the direction of Maalihan himself.

Thereafter, three separate informations for murder were filed against Dalmacio Maalihan, Alfredo Piano, Rufino Marasigan and Alfredo Sabaybay. As heretofore stated, Rufino Marasigan died during the trial.

After trial, the lower court rendered a decision, the dispositive portion of which reads as follows:jgc:chanrobles.com.ph

"THEREFORE, in Criminal Case No. 6320, the court finds the three accused, Dalmacio Maalihan y Cantos, Alfredo Piano y Pilapil and Alfredo Sabaybay guilty beyond reasonable doubt of the crime of Murder, for the brutal killing of the late Luis Arejola, with the attendance of five aggravating circumstances, namely: Premeditation, Treachery, committed in an uninhabited place or by a band whenever such circumstance may facilitate the commission of the crime, committed by persons to insure or afford impunity, and the crime was committed in consideration of a prize, reward or promise, and hereby sentences each of them to suffer the maximum penalty of DEATH and to indemnify, jointly and severally, the heirs of the deceased LUIS AREJOLA in the sum of P15,000.00 Philippine Currency and to pay the cost, proportionately.

In Criminal Case No. 6425, the court finds the three accused, Dalmacio Maalihan y Cantos, Alfredo Piano y Pilapil and Alfredo Sabaybay, guilty beyond reasonable doubt of the crime of MURDER, for the senseless and remorseless killing of ROMAN MORA, with the attendance of four aggravating circumstances, namely: Treachery, committed in an uninhabited place or by a band whenever such circumstance may facilitate the commission of the crime, committed by persons to insure or afford impunity, and the crime was committed in obvious consideration of a prize, reward or promise, and hereby sentences them, each to suffer the maximum penalty of DEATH and to indemnify, jointly and severally the heirs of the deceased Roman Mora in the sum of P12,000.00 Philippine Currency and to pay the cost, proportionately.

In Criminal Case No. 6426, the court finds the three accused, Dalmacio Maalihan y Cantos, Alfredo Piano y Pilapil and Alfredo Sabaybay, guilty beyond reasonable doubt of the crime of Murder, for the senseless and remorseless killing of NARCISO BUENDIA, with the attendance of four aggravating circumstances, namely: Treachery, committed in an uninhabited place or by a band whenever such circumstance may facilitate the commission of the crime, committed by persons to insure or afford impunity, and the crime was committed in obvious consideration of a prize, reward or promise, and hereby sentences them, each to suffer the maximum penalty of DEATH and to indemnify, jointly and severally, the heirs of the late Narciso Buendia in the sum of P12,000.00 and to pay the cost, proportionately."cralaw virtua1aw library

Appellants now seek to set aside the judgment on the ground that their confessions had been obtained through promise of immunity, apart from the use of force, threat and intimidation. They further impute error on the lower court for having peremptorily brushed aside their defense of alibi.

We find no reasonable ground to disturb the judgment of conviction, In impugning their extrajudicial confessions, Sabaybay, Maalihan and Piano testified to alleged third degree treatment from the P.C. investigators. Sabaybay declared that in the early morning of October 5, 1958, elements of the Philippine Constabulary, namely: Mota, Saldo, Turiano and Mayores came to his house and told him that the Captain wanted to question him on some matters. He was led to a PC jeep, and blindfolded. Then they brought him to a house near the river. He said that although blindfolded, he could recognize the house where he was brought by leaning on the wall and tapping the same. In that house he was stripped naked. Then PC Cpl. Saldo stabbed him with the edge of his hand on the side of neck and on the lower nape near the mandible. He was repeatedly boxed on different parts of the body until he lost consciousness. After he was revived by the water poured on him, he was maltreated anew. He finally signed the statement, Exhibit H, because he could no longer put up with the torture.

To corroborate the alibi, his wife Isabelita Buendia testified that she brought Alfredo to a "parahilot" for treatment of his dislocated ribs.

Upon the other hand, Dalmacio Maalihan declared that he was taken by PC officers to a river where he was undressed; that he was made to lie down and water was poured inside his nostrils, causing him to urinate; and that he was submerged in the water until he lost consciousness. He too signed the statement, Exhibit K, to avoid further maltreatment.

For his part, Alfredo Piano alleged that he was made to sit on a chair at the PC headquarters and forced to stare at a big electric bulb; that he was kicked on the stomach, until he lost consciousness; that upon regaining consciousness, his head was pushed inside a toilet bowl filled with human excreta; and that his testicles were repeatedly pounded. Thus, he signed the statement, Exhibit L.

Gruesome and condemnable indeed are the details narrated by the appellants of the alleged torture they had undergone. Considered alone, they evince an appearance of truth and sincerity, but taken vis-a-vis with other circumstances revealed by the records, We find them totally bereft of the faith and credence that the accused earnestly seek to elicit from Us.

1. We have carefully scrutinized the appellant’s confessions and the diverse details contained therein could have been known only by the very persons who had taken part in the execution of the acts in question. Thus, the meeting held on September 21, 1958 before the Peñafrancia Fiesta, the persons then present, the matters taken up therein, including the plan to kill Luis Arejola, as well as the routes taken by Sabaybay when he guided the three killers to the victim, are details which could not have been concocted by the PC investigators.

2. The recitals in said extrajudicial statements are in many respects confirmatory and corroborative of each other. In his affidavit, Sabaybay not only related his meeting with the three men in the house of Canabe on September 25, 1958, he also admitted that, upon being assured by them that they had been sent by Marasigan, he guided them to the place where Luis Arejola was at that time, for identification of the latter. He also named Piano and Maalihan as two of the three gun wielders whom he accompanied to the field.

The foregoing statements interlock with the admissions of accused Maalihan and Piano in their respective affidavits, Exhibits K and L, to the effect that it was Alfredo Sabaybay who acted as their guide and pointed out to them the intended victim, Luis Arejola. Likewise, in said confessions appear the statements of Maalihan and Piano that the shooting commenced simultaneously at the precise moment Luis Arejola looked back, and that it ended only when they ran out of ammunition.

3. Not one of the appellants had himself examined medically. Neither had they requested for such medical examination. As aptly observed by the Solicitor General —

"Appellants failed to show any injury indicative of the maltreatment allegedly suffered by them. If, as appellant Alfredo Sabaybay claimed that he was struck, boxed at the stomach at the left mandible, and his mouth bled rendering him unconscious, it is strange — and he himself admits this - that after he was discharged from the custody, he did not submit himself to any doctor for examination or treatment. (pp. 138, tsn, April 3, 1963) This fact belies such claim of maltreatment. While appellant claimed having gone instead to an "herbolario" who gave him a general body massage (p. 86, tsn., October 30, 1962) the latter was not produced to corroborate such assertion."cralaw virtua1aw library

"Appellant Alfredo Piano likewise admitted that he did not submit to any doctor for physical examination (p. 85, tsn., February 8, 1967). Nor does the evidence for appellant Dalmacio Maalihan show that he ever sought medication by reason of his having been manhandled."cralaw virtua1aw library

4. Each of the affiants in his extrajudicial confession tried to minimize his own participation in the offense by throwing the blame upon his co-accused.

Thus, the declaration of Alfredo Sabaybay in Exhibit "I" that he tried to dissuade the three men from executing the plan to kill Arejola, but that they did not mind him, coupled with this exculpatory statement in Exhibit "H" that he went home after he had pointed out Arejola to them and was, therefore, not present during the actual shooting, strongly indicate that he executed his extrajudicial confession of his own free accord. The same inference applies to the futile attempt of appellants Maalihan and Piano to throw the responsibility to a certain Jose Umali whom they attempted to picture as the mastermind. As this Court said in People v. Mejares, 7 "those parts of the confession which would avoid or lessen the declarant’s criminal liability could have come only from the mouth of one who stood to benefit from the qualifications or avoidance of the admission."cralaw virtua1aw library

5. Piano and Maalihan willingly submitted to a reenactment of the crime. Sgt. Porfirio Turiano testified that it was done under the direction of the appellants Maalihan himself. In addition, the execution of such reenactment dovetailed with the description given thereof by said appellants in their respective confessions.

6. As to the claim of Sabaybay that his extrajudicial statement was obtained through promise of immunity, the record is bereft of any showing that the PC investigators ever promised immunity to him. And even assuming that the investigators did make such proposal, the promise of immunity by one who is not a prosecuting officer and therefore not in a position to comply with such promise, cannot be interposed as an objection to the admissibility of the confession.

7. The testimonies of several prosecution witnesses strongly belie the claim of force and intimidation. The regularity of the proceedings leading to the execution and verification of the affidavits in question was attested to by Provincial Fiscal Alfredo Reyes, Deputy Clerk of Court Justiniano Ezequiel and Judge Nicolas Papica, all of whom declared that the appellants fully understood the contents of their respective statements, at the time they swore to the truth thereof. 8

In fine, We view appellants’ claim of torture and duress too dubious to merit credence. Thus, the alibi of appellants cannot but be a mere afterthought foisted to avoid the damaging effects of their extrajudicial confessions. Easy to concoct, their alibi cannot prevail over the positive identification of the accused by witnesses. In the case at bar, Dalmacio Maalihan and Alfredo Piano were pointed to by Victorio Canabe as among the three men who came to his house on September 25, 1958. Their co-accused Alfredo Sabaybay likewise identified them as two of the hit men who, after he had indicated to them the victim, tracked down their prey. 9

From the evidence on record, We are satisfied that appellants Maalihan and Piano are guilty of the crime of triple murder, qualified by treachery. They gunned down Luis Arejola, Roman Mora and Narciso Buendia in a sudden volley of gunfire trained at their back, making it impossible for the victims to defend themselves from the aggression.

However, We find the evidence too inadequate to establish that the crime was committed in consideration of prize, reward or promise. The trial court likewise erred in taking into account the aggravating circumstance of "uninhabited place." The prosecution failed to prove that the accused intentionally sought the solitude of the place where the crime was committed in order to better attain their purpose." 10 Neither can it be said that the crime was committed by a band. For the circumstance of band to be present, there must be at least four armed malefactors. 11 The execution of the crime by three armed malefactors does not constitute a band. 12

With respect to Alfredo Sabaybay, We do not find sufficient evidence to saddle him with the criminal responsibility of a co-principal. His participation in the crime being limited merely to identifying Luis Arejola to the triggermen, We hold him liable as an accomplice, conformably to the settled rule that those whose participation in the killing was not indispensable to the consummation of the murder are liable as accomplices. 13

WHEREFORE, all circumstances considered, the decisions appealed from are modified in the sense that appellants Dalmacio Maalihan y Cantos and Alfredo Piano y Pilapil are hereby sentenced to suffer the penalty of reclusion perpetua in each of the three crimes committed and to indemnify the heirs of the deceased Luis Arejola, Roman Mora and Narciso Buendia in the sum of P30,000.00 each.

Alfredo Sabaybay is hereby convicted as an accomplice and sentenced to an indeterminate penalty of ten (10) years, as minimum, to seventeen (17) years, as maximum, and to pay solidarily with the above-named principals an indemnity of Fifteen Thousand Pesos (P15,000.00) to the heirs of Luis Arejola, Roman Mora and Narciso Buendia.

Costs against appellants, proportionately.

SO ORDERED.

Makasiar, Aquino, Concepcion, Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.

Fernando, C.J., concurs in the result.

Teehankee, J., took no part.

Endnotes:

---

1. p. 475, Original Record.

2. Exhibits A, B and C.

3. Exhibit G.

4. Exhibit H.

5. Exhibit K.

6. Exhibit L.

7. 90 Phil. 102, 105.

8. tsn, pp. 1-2, June 27, 1961; pp. 17-20, May 9, 1961; pp. 27-28, May 9, 1961.

9. tsn, p. 17, June 20, 1960.

10. People v. Aguinaldo, 55 Phil. 610.

11. par. 3, Article 14, Revised Penal Code.

12. People v. Pelagio, 20 SCRA 153.

13. People v. Lacson, 1 SCRA 415; People v. Villegas, 2 SCRA 587.

1. REMEDIAL LAW; EVIDENCE; EXTRA-JUDICIAL CONFESSION, ADMISSIBLE TO PROVE CONSPIRACY. — The lower court erred in admitting the confession of Antonio Madlangbayan as evidence against herein appellant. While it is true that the extra-judicial confession of an accused is not admissible against herein appellant, it nevertheless serves as strong indication that said appellant was participant in the crime because the contents thereof interlocked with. those contained in his statement, Exhibit "G." There being no proof of collusion and being identical with each other in their essential details, and corroborated by Dr. Abelardo Lucero, a Medical Examiner of the Manila Police Department, and the post-mortem report, it is admissible to prove conspiracy.

2. ID.; ID.; ID.; FAILURE TO OBJECT AGAINST THE ADMISSION THEREOF CONSTITUTES WAIVER. — Records show that when the extra-judicial confession of Antonio Madlangbayan was presented in court, thru Patrolman Carag, appellant did not object. It has been repeatedly held as a rule of evidence that objection against the admission of any evidence must be made at the proper time and that if not so made it will be understood to have been waived. The proper time to make a protest or objection is when, from the question addressed to the witness, or from the answer thereto, or from the presentation of the proof the inadmissibility of evidence is, or may be, inferred (Abrenica v. Gonda, 37 Phil. 379).

3. ID.; ID.; ID.; SUFFICIENT TO CONVICT WHERE CORROBORATED BY EVIDENCE OF CORPUS DELICTI. — The extra-judicial confession of Edgardo Mariño is sufficient to sustain a conviction. The Rules of Court provides that "an extra-judicial confession made by an accused shall not be sufficient ground for conviction unless corroborated by evidence of corpus delicti." (Section 3, Rule 133) In the case at bar, from the People’s evidence the corpus delicti of the offense charged has been proved by the uncontradicted testimonies of Llywelyn Fallarme and the police officer assigned to the case, as well as the testimony of Dr. Abelardo Lucero, the police Medical Examiner, as to the death of Enrique Fallarme, together with the documentary evidence of the necropsy report stating the post-mortem findings, including the cause of death.

4. ID.; ID.; WEIGHT AND SUFFICIENCY; EXTRA-JUDICIAL CONFESSION IN CASE AT BAR EXECUTED VOLUNTARILY. — The claim that the extra-judicial confession (Exhibit "G") was obtained thru force and intimidation is belied by the abundance of evidence showing that his confession was voluntarily given. In the first place, the statement is replete with details which only the accused could have known and which could not have been concocted by the police; his movements prior to the commission of the crime are well narrated in said document. Second, Fiscal Ramon Mabutas, who administered the oath of appellant in his confession, propounded questions to him and he admitted that the contents thereof are his and that the signatures appearing thereon were made voluntarily. In fact, he signed his name again before the said administering officer. Third, the questioned statement was made before the effectivity of the New Constitution. It was given on February 9, 1971. We have already held that the provisions of Section 20, Article IV of the Constitution cannot be given retroactive effect to the confessions obtained before January 17, 1973, when the Constitution took effect (People v. Viduya. 97 SCRA 666).

5. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; ABUSE OF SUPERIOR STRENGTH: APPRECIATED IN CASE AT BAR. — Appellant with his co-accused Madlangbayan and two others who unfortunately have not yet been apprehended, took advantage of their superior strength when the four of them, two of whom were armed with deadly weapons, surrounded and stabbed the unarmed, helpless and unsuspecting victim. The aggravating circumstance of abuse of superior strength was correctly appreciated by the trial court.

This case is before Us on mandatory review of the judgment of the then Circuit Criminal Court of Manila, in Criminal Case No. CCC-VI-484 (71), entitled: "People v. Edgardo Mariño y Parento", finding said accused guilty beyond reasonable doubt of the crime of robbery with homicide, with the attendance of the aggravating circumstances of abuse of superior strength and recidivism, and sentencing him to death; to indemnify the heirs of the deceased, Enrique Fallarme, in the sum of P12,000.00; the sum of P10,000.00 by way of moral damages; another sum of P10,000.00 by way of exemplary damages; to return to the heirs of the victim the articles and cash taken from the latter or to indemnify them the sum of P600.00 representing the total value thereof if he fails to do so; and to pay the costs.

The deceased, Enrique Fallarme, was a civil engineer working at the City Engineer’s Office in Manila. His son, Llywelyn Fallarme, was a utility inspector in the same office. About 3:00 in the afternoon of December 27, 1970, the two left their residence at 54 Gregorio Roxas Street, Quezon City, for their store at the Central Market, Manila. Upon arrival at the Central Market, Llywelyn Fallarme alighted from the car to collect their store sales in the amount of P300.00. He turned over the same to his father, Enrique who remained in the car.

From the Central Market they proceeded to Paco, Manila to inspect the road project in Canonigo where the elder Fallarme was the Supervising Engineer. Llywelyn and a younger sister left their father in the road project and they proceeded to a piano recital.

About 7:30 in the same evening, the Fallarmes were told that Enrique Fallarme had an accident. Llywelyn rushed to Canonigo, Paco where he saw his father lying on the street, lifeless with stab wounds. He identified the body of his father and told the police that the deceased was wearing a Seiko wrist watch and had a wallet in his pants. They were no longer there.

The medical report (Exhibit "C") shows that the victim died from "shock and hemorrhage" due to multiple (5) stab wounds, one lacerating thru the right ventricle of the heart.

On December 28, 1970, the police arrested one Antonio Madlangbayan, who, in a written statement (Exhibit "E"), admitted that he, together with Boy Mariño, Imping and Rody were the ones who stabbed the deceased at Canonigo street and robbed him of money and wallet. He described the physical features of his companions and confessed that all of them were members of the "Bahala Na Gang."cralaw virtua1aw library

The case of Antonio Madlangbayan has already been decided by the same trial court. Said accused has been found guilty and sentenced to death. The judgment was affirmed by this Court on December 14, 1979 (People v. Madlangbayan, 94 SCRA 679).

On the basis of Madlangbayan’s statement, the police, after several days of surveillance of his hiding place, was able to arrest herein appellant, Edgardo Mariño. He was brought to the police precinct for investigation. A police line-up composed of appellant and five other detainees was formed and then Madlangbayan was brought to identify the person of "Boy Mariño" whom he mentioned in his statement, Exhibit "E." Madlangbayan immediately pointed to the appellant as the same person.

Thereafter, appellant was investigated by Patrolman Carag who took down his statement (Exhibit "G") following which he was brought before Fiscal Ramon Mabutas at the latter’s residence in San Andres, Manila. Fiscal Mabutas talked to Mariño who admitted that he had read and confirmed the truth of the contents thereof, and that the signatures appearing therein are his. Likewise, he acknowledged to the Fiscal that the sketch of a knife (Exhibit "G" -1") was drawn by him. He then signed Exhibits "G" and "G-1" again before Fiscal Mabutas after the latter had taken his oath. This was followed by the Fiscal signing his name in said documents. What happened is narrated by the appellant in Exhibit "G", as follows:jgc:chanrobles.com.ph

"Tanong (15)

Saan galing ang trenta sentimos na ibinili mo ng cigarillo?

Sagot:chanrob1es virtual 1aw library

Binigyan ako ng bente sentimos in TONY at dinagdagan ko ng diez sentimos. Matapos ako bumili ng cigarillo sa isang babae na waitress doon sa Golden Restaurant ay tumuloy na kani sa Canonigo sa may Boxas High School. Doon sa tapat ng Roxas High School ay nakatayo lang ho yong MAMA na sinaksak namin. Linapitan namin siya. Tinutukan in TONY ng kutsilyo ang MAMA sa kaliwang tagiliran at ako naman ay tinutukan ko ang MAMA sa liig sa parteng kanang liig ng aking doble blade. Ang sabi ng MAMA ay ganito ‘ANO ANG KASALANAN KO?’ Ang sabi ko ay "HOLD-UP ITO" at dinala namin siya doon sa kanto ng Canonigo, San Gregorio at Figueroa Street, doon sa madilim ng kunti dahil sa maliwanag doon sa tapat ng Roxas High School na kinatatayuan ng MAMA.

Tanong (16)

Ano pa ang nangyari kong meron?

Sagot:chanrob1es virtual 1aw library

Ang sabi ng MAMA na nakataas pa ang kamay ay ganito ‘KUNIN NYO ANG KAILANGAN NYO’. Ang ginawa ko naman ay kinapkapan ko ang bulsa ng MAMA sa likurang pantalon at kinuha ko ang pitaka niya na itim na balat na may lamang kuarta. Kinuha ko sa bandang kaliwa na bulsa. Pagkatapos ay iniyabot ko kay ‘Rody’ na siya noon at si ‘Imping’ ay nasa likuran na MAMA noon. Si IMPING ang unang nagpababa ng kaliwang kamay noong MAMA at kinuha niya ang relos ng MAMA at pinataas din ang kaliwang kamay. Noong biglang binaba ng MAMA ang kamay niya ay sinaksak ni ‘Tony’ at ng masaksak ang MAMA ay humawak sa aking kwelyo ng damit ko sa kanan. Ang ginawa ko ay sinaksak ko ang MAMA sa dibdib at nabitiwan ako ng MAMA at tumakbo na ako kasabay ko si RODY. Ako ay tumakbo papunta sa Kahilom 3 at si RODY ay tumakbo sa HIWAY doon sa banda ng mga Apartment ni ROBLES. Pagdating ko sa Kahilom 3 ay umuwi ako sa amin nagdaan ako sa Dapo Street na papunta sa amin sa Obisis sa amin." (p. 29, Record).

Accused-appellant denied the voluntary execution of his statement claiming that he was maltreated into giving the same and alleged that the trial court erred (1) in admitting the extrajudicial confession (Exhibit "E") of Antonio Madlangbayan as evidence against him; and (2) in admitting his extrajudicial confession (Exhibit "G") and in finding him guilty of the offense charged on the basis thereof.

We find no merit in the claim that the lower court erred in admitting the confession (Exhibit "E") of Antonio Madlangbayan as evidence against herein appellant. While it is true that the extrajudicial confession of an accused is not admissible against herein appellant, it nevertheless serves as strong indication that said appellant was participant in the crime because the contents thereof interlocked with those contained in his statement, Exhibit "G." There being no proof of collusion and being identical with each other in their essential details, and corroborated by the testimony of Dr. Abelardo Lucero, a Medical Examiner of the Manila Police Department, and the post-mortem report (Exhibit "C"), it is admissible to prove conspiracy.

Besides, records show that when the extrajudicial confession of Antonio Madlangbayan was presented in court, thru Patrolman Carag, appellant did not object. It has been repeatedly held as a rule of evidence that objection against the admission of any evidence must be made at the proper time and that if not so made it will be understood to have been waived. The proper time to make a protest or objection is when, from the question addressed to the witness, or from the answer thereto, or from the presentation of the proof the inadmissibility of evidence is, or may be, inferred (Abrenica v. Gonda, 34 Phil. 739).

On the more important question as to whether the extrajudicial confession of Edgardo Mariño is sufficient to sustain his conviction, the Rules of Court provides that "an extrajudicial confession made by an accused shall not be sufficient ground for conviction, unless corroborated by evidence of corpus delicti." (Section 3, Rule 133). In the case at bar, from the People’s evidence the corpus delicti of the offense charged has been proved by the uncontradicted testimonies of Llywelyn FalIarme and the police officer assigned to the case, as well as the testimony of Dr. Abelardo Lucero, the police Medical Examiner, as to the death of Enrique Fallarme, together with the documentary evidence of the necropsy report stating the postmortem findings, including the cause of death.

With respect to the claim that the extrajudicial confession (Exhibit "G") was obtained thru force and intimidation, the same is belied by the abundance of evidence showing that his confession was voluntarily given. In the first place, the statement is replete with details which only the accused could have known and which could not have been concocted by the police; his movements prior to the commission of the crime are well narrated in said document. Second, Fiscal Ramon Mabutas, who administered the oath of appellant in his confession, propounded questions to him and he admitted that the contents thereof are his and that the signatures appearing thereon were made voluntarily. In fact, he signed his name again before the said administering officer. Third, the questioned statement was made before the effectivity of the New Constitution. It was given on February 9, 1971. We have already held that the provisions of Section 20, Article IV of the Constitution cannot be given retroactive effect to confessions obtained before January 17, 1973, when the Constitution took effect. (People v. Viduya, 97 SCRA 666).

Indeed, appellant with his co-accused Madlangbayan and two others who unfortunately have not yet been apprehended, took advantage of their superior strength when the four of them, two of whom were armed with deadly weapons, surrounded and stabbed the unarmed, helpless and unsuspecting victim. The aggravating circumstance of abuse of superior strength was correctly appreciated by the trial court. However, for lack of the necessary votes, We have to impose the next lower penalty which is reclusion perpetua.

WHEREFORE, the appealed judgment is hereby AFFIRMED, with the modification that herein appellant Edgardo Mariño y Parento is hereby sentenced to reclusion perpetua and the indemnity is increased to P30,000.00.

SO ORDERED.

Makasiar, Concepcion, Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.

Fernando, C.J., concurs in the result.

Teehankee, J., took no part.

Aquino, J., I vote for the death penalty as in the case of Antonio Madlangbayan, the co-accused of Edgardo Mariño, 94 SCRA 679.

1. CRIMINAL LAW; JUSTIFYING CIRCUMSTANCES; SELF-DEFENSE; REQUISITES. — Every system of law recognizes self-defense as a justifying circumstance. But for self-defense to be validly invoked the following must concur: unlawful aggression, reasonable necessity of the means employed to prevent or repel it, and lack of sufficient provocation on the part of the person defending himself.

2. ID.; ID.; ID.; ID.; UNLAWFUL AGGRESSION; LAUREL CASE APPLIED IN CASE AT BAR. — The evidence for the prosecution shows that the appellant and his wife resented a rumor said to have been circulated by Mamerta Gonzales to the effect that the appellant was having sexual relations with Eva, the daughter of Anita Dofilez by her previous husband, and for which reason Anita was reported to have said, "We will not surrender until when there will be someone who will be dead here in Bagsak." In the light of this fact, the deceased Gonzales spouses could not have been aggressors applying the doctrine enunciated in U.S. v. Laurel, 22 Phil. 252 (1912). The Dofilez spouses who felt aggrieved must have been the aggressors.

3. ID.; QUALIFYING CIRCUMSTANCES; TREACHERY AND EVIDENT PREMEDITATION, APPRECIATED IN CASE AT BAR. — The information alleges treachery and evident premeditation as qualifying circumstances. The appellant denies their existence. We hold that there was treachery because the attack on the Gonzales spouses was sudden and they had no opportunity to defend themselves or to seek cover. There was also evident premeditation because, as Thelma Nangan testified, there was a threat to kill even before July 12, 1969.

4. ID.; DOUBLE MURDER; PENALTY. — The appellant is guilty of double murder because the victims were killed with different bursts of fire from his gun and not from a single shot. Under the circumstances it would be appropriate to impose two death penalties but for lack of necessary number of votes, two reclusion perpetua are imposed instead.

MAKASIAR, J., dissenting:chanrob1es virtual 1aw library

1. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; TREACHERY AND EVIDENT PREMEDITATION; NOT ESTABLISHED WITH RESPECT TO DECEASED CECILIO GONZALES IN CASE AT BAR. — In the case of the deceased Cecilio Gonzales, neither treachery nor evident premeditation was established. It is not shown that the appellant decided to kill Cecilio Gonzales before going to the Gonzales premises with the carbine, when he arrived at such decision, and the duration to reflect thereon until its execution. The mere fact that he was armed with a carbine, does not demonstrate that he already was determined to kill the victim Cecilio Gonzales before arriving at the Gonzales premises that fateful afternoon of July 12, 1969. Such fact may indicate merely that he intended to use the carbine for defense of himself and his wife in case Cecilio Gonzales should assault them or should become violent. This is emphasized by the fact that upon reaching the Gonzales premises, he placed the carbine against the wire fence and proceeded to wash his feet at the artesian well of the Gonzaleses in the presence of the Gonzales’s 15-year-old daughter Evangeline and a school teacher, Felisa Matabalan, who were respectively bathing and washing clothes by the artesian well. The fact that the attack was sudden does not necessarily mean that it was treacherous, because, as stated before, appellant placed the carbine against the fence and, while washing his feet, he just admonished the deceased Cecilio Gonzales "to tell his wife not to utter obscene words." Upon hearing the admonition addressed by appellant to her husband Cecilio Gonzales, Mamerta angrily replied, "What is that? I’m here. You are in hell." This further angered appellant. Mamerta Gonzales, wife of the victim Cecilio, was reputedly the source of the gossip that appellant was having carnal intercourse with the daughter of his wife Anita by a previous husband, which gossip obfuscated Appellant.

2. ID.; ID.; ID.; TREACHERY QUALIFIES KILLING OF MAMERTA GONZALES IN CASE AT BAR BUT EVIDENT PREMEDITATION IS ABSENT. — With respect to the shooting of Mamerta Gonzales, there is no evident premeditation, because after the appellant shot Cecilio, he ran away, followed by his wife Anita. But Cecilio, although mortally wounded, pursued both of them, brandishing his bolo and in the process, wounded both his wife Mamerta and Anita. The sight of his wife being attacked by the deceased Cecilio with his bolo, caused appellant to turn back and to fire repeatedly at the wounded Mamerta, who was then crying while embracing her injured husband, who fell to the ground as he pursued appellant and his wife Anita.

3. ID.; MITIGATING CIRCUMSTANCES; OBFUSCATION AND VOLUNTARY SURRENDER; PRESENT IN CASE AT BAR. — As aforesaid, both homicide and murder are mitigated by obfuscation and voluntary surrender.

Automatic review of the decision rendered by the defunct Court of First Instance of Davao Oriental in Criminal Case No. 214 which imposed the death penalty on PATROCINIO DOFILEZ.

In the court a quo an information for double murder was filed against Dofilez worded as follows:jgc:chanrobles.com.ph

"That on or about July 12, 1969, in the Municipality of San Isidro, Province of Davao Oriental, and within the jurisdiction of this Honorable Court, the above mentioned accused, armed with a firearm, with treachery and evident premeditation, and with intent to kill, did then and there wilfully, unlawfully and feloniously attack, assault and shot with said weapon Cecilio Gonzales and Mamerta Gonzales Y Aneslag, thereby inflicting upon them mortal gunshot wounds which caused their instant death." (Expediente, p. 21.)

The accused pleaded "not guilty" when he was arraigned on May 19, 1970, and after trial he was sentenced "with the maximum penalty of DEATH and to indemnify the heirs of the victims Cecilio Gonzales and Mamerta Gonzales the amount of TWENTY FOUR THOUSAND (P24,000.00) PESOS and to pay the costs." (Id., p. 91.)

The People’s version of the facts is as follows:jgc:chanrobles.com.ph

"The deceased spouses Cecilio Gonzales and Mamerta Gonzales were caretakers of the property belonging to Felixberto Catada situated in barrio Bagsac, San Isidro, Davao Oriental. (tsn., p. 32, Jan. 5, 1971).

At about two o’clock in the afternoon of July 12, 1969, as their 15 year-old daughter, Evangeline, was taking a bath in an artesian well inside the premises of said property, in company with Felisa Matabalan, a teacher, who was washing clothes thereat, the accused Patrocinio Dofilez and his wife Anita arrived at the place. (tsn., pp. 8-11, Jan. 5, 1971).

Patrocinio carried a carbine which he placed against the wire fence as he washed his feet. (tsn., pp. 1-13, id.). While he was washing his feet, the deceased Cecilio Gonzales arrived and inquired from his daughter Evangeline if she knew where her elder brother was. (tsn., pp. 12-13, id.). Upon seeing Cecilio, the accused told him in a loud voice: `You tell your wife not to utter obscene words.’ (tsn., p. 13, id.). Overhearing the remark, Mamerta Gonzales, who was nearby making charcoal, replied: `What is that? I am here, you are in hell.’ (Tsn., pp. 14-15, id.).

Suddenly, Patrocinio aimed his gun at Cecilio and fired, hitting the latter in the chest (tsn., pp. 15, 17-18, id.). Cecilio drew out his bolo and tried to go after the accused who ran away followed by his wife Anita (tsn., p. 18, id.).

Brandishing his bolo in all directions, Cecillo accidentally hit both Anita and his wife Mamerta with it, and then fell to the ground (tsn., pp. 18-19, id.). Mamerta then ran to the side of her husband, and, upon seeing him gasping for breath, embraced him and began to cry (tsn., p. 20, id.). Whereupon, the accused returned and fired several shots at Mamerta, and, remarking `Will you do it again?’ continued firing at her until she was dead (tsn, pp. 20-21, id.). Evangeline then approached the accused and begged him to stop. But the accused pointed his gun at her; Evangeline ran away out of fear (tsn, p. 21, id.). Thereafter, the accused surrendered himself to the authorities before whom he admitted having killed the Gonzales couple with his carbine (tsn, p. 64, id.; Exh. L, p. 3, Rec.).

Dr. Lily Abad, Municipal Health Officer of San Isidro, performed an autopsy examination on the bodies of the victims and found seven gunshot wounds and one lacerated wound on Mamerta Gonzales and two gunshot wounds on the body of Cecilio Gonzales, one in his right chest and the other in his right foot (tsn, p. 81, id.)." (Appelle’s Brief, pp. 2-4.)

The appellant admitted that he killed the Gonzales spouses but he "professes self-defense, to save himself and the life of his wife from the unlawful aggression of the deceased couple." (Appellant’s Brief, p. 2.)

The appellant claims that the trial court committed several errors which may be categorized as follows: (1) in denying a motion for reconsideration or new trial; (2) in appreciating the evidence; and (3) in finding the accused guilty instead of acquitting him for justified self-defense.

The decision of the trial court was promulgated on September 17, 1971. In a Motion dated October 1, 1971, counsel for the accused asked the court "to exercise its judicial discretion in granting a new trial, or allowing the accused the recall or presentation of witnesses in support of the instant motion before the same be finally resolved." (Expediente, p. 97.)

The accused asked for a new trial because of (a) "serious doubts on the credibility of the prosecution witnesses" and (b) "errors of law have been committed." (Id., p. 92.)

The trial court heard the Motion on October 15, 1971, and denied it in an Order dated October 16, 1971. The court denied the Motion for the following reasons: (1) it was not accompanied by an affidavit of merit; (2) the movant failed to cite any errors of law or irregularities during the trial; and (3) it was not shown that newly discovered evidence could be introduced. (Id., pp. 104-105.)

The accused, again thru his counsel, filed on October 18, 1971, a Supplemental Motion with the same prayer. The court set it for hearing on November 18, 1971, but on that day counsel for the accused failed to appear. The court denied the Supplemental Motion.

For the reasons stated by the trial court, it committed no reversible error in denying the two motions of the accused.

Every system of law recognizes self-defense as a justifying circumstance. But for self-defense to be validly invoked the following must concur: unlawful aggression, reasonable necessity of the means employed to prevent or repel it, and lack of sufficient provocation on the part of the person defending himself. And it is well-settled that:jgc:chanrobles.com.ph

"Once the defendant in a criminal case has admitted that he killed a human being, the burden is on him to establish the presence of any circumstance which may relieve him from responsibility or mitigate the offense committed. To prove justification, the defendant must rely on the strength of his own evidence and not on the weakness of that of the prosecution, for even if it were weak, it could not be disbelieved after the accused had admitted the killing.

"Self-defense is an affirmative allegation that must be proven with certainty by sufficient, satisfactory and convincing evidence that excludes any vestige of criminal aggression on the part of the person invoking it." (I Aquino, The Revised Penal Code, pp. 120-121 [1976].)

There were only three witnesses for the defense: the appellant himself, his wife, and Dr. Augusto Resurreccion.

Dr. Resurreccion was called to testify on the wounds of Anita Dofilez who was brought to the Mati Baptist Hospital on July 12, 1969. By his own admission it was not he but Dr. Austriberta Jacob who treated Anita; he was merely the supervising physician. The documents issued by the hospital which were identified by Dr. Resurreccion show that Anita sustained five hacking wounds: three on the head and two on the arms. There is no dispute on the appellant’s claim that his wife sustained wounds on the day he shot and killed the Gonzales spouses.

The appellant’s version of the incident which contains some arguments is as follows:jgc:chanrobles.com.ph

"The accused-appellant Patrocinio Dofilez is the fishpond overseer of one Antonio Estioco whose fishpond is located at Owason, San Isidro, Davao Oriental. Bagsak, the place where the incident took place, is another barrio of San Isidro, Davao Oriental, where residents of Owason used to pass through in going to Lupon, Davao Oriental. Although, there is no evidence that the artesian well at Bagsak where the shooting took place was not usually passed by the residents of Owason in going to Lupon, yet the trial court made its own unfounded presumption that `one must go there purposely and with some intention.’ (Decision, p. 15). The unfounded presumption, unfortunately, was against the accused.

"In the afternoon of July 12, 1969, Accused-appellant and his wife, Anita Bitoon, were on their way to Lupon from Owason where they reside. There being no responsible person at Owason to be left with the carbine entrusted to accused-appellant in his capacity as fishpond overseer, he took along with them as was customary said firearm. Arriving at the artesian well at Bagsak where they had used to pass, and which happened to be near the house of the deceased couple, Accused-appellant put down his carbine and started to wash his feet. These acts of the accused-appellant upon arrival of putting down his gun and of washing his feet were both testified to by prosecution witnesses Evangeline Gonzales and Felisa Matabalan, and established as facts by the trial court, (Decision, pp. 5 & 9). How the incident, shooting, or fight started has become the controversy and issue of the case. The prosecution through its witnesses tried to show that the accused-appellant went to Bagsak purposely to kill the deceased couple, while the accused-appellant on the other hand professes self-defense, to save himself and the life of his wife from the unlawful aggression of the deceased couple. At any rate, when the incident finally ended, the facts show that Cecilio Gonzales was found dead with a gunshot wound on his right chest, at his right heel, and another on his right foot, lateral aspect; Mamerta Gonzales, dead with several gunshot wounds on her right shoulder and arm, with one lacerated wound on the right side of her back (p. 85, t.s.n. — Mosqueda); Anita Bitoon Dofilez, found unconscious with wounds on her forearm, head, hands, and shoulder (p. 234, t.s.n. - Mosqueda); while accused-appellant surrendered to the authorities his carbine still containing one live bullet (Testimony Sgt. Catalino Ramos)." (Appellant’s Brief, pp. 1-3.)

It is manifest from the foregoing that whether or not the appellant acted in self-defense when he shot and killed the Gonzales spouses is a question of fact.

The trial court heard the testimony of several persons who were at the scene of the shooting and saw what happened. On the part of the prosecution the following testified: Evangeline Gonzales, daughter of the deceased spouses; Felisa Matabalan, a school teacher; and Silvestra Anislag, a neighbor of the deceased spouses. Those who testified for the defense have already been mentioned above.

The trial court found the prosecution witnesses to be more credible than those of the defense and there is nothing in the record which will justify a reversal of its finding especially because under the circumstances the burden of proof had shifted from the prosecution to the defense.

The appellant claims that he had "to save himself and the life of his wife from the unlawful aggression of the deceased couple." (Appellant’s Brief, p. 2.) But were the deceased spouses the aggressors? The record is bereft of any evidence to show that the Gonzales spouses were the aggressors. On the contrary there is every reason to suppose that it was the other way around.

The evidence for the prosecution shows that the appellant and his wife resented a rumor said to have been circulated by Mamerta Gonzales to the effect that the appellant was having sexual relations with Eva, the daughter of Anita Dofilez by her previous husband, and for which reason Anita was reported to have said, "We will not surrender until when there will be someone who will be dead here in Bagsak." (TSN, p. 140.) In the light of this fact, the deceased Gonzales spouses could not have been the aggressors.

In U.S. v. Laurel, 22 Phil. 252 (1912), Exequiel Castillo and Jose Laurel engaged in combat. Each accused the other of having commenced the assault. The Supreme Court said:jgc:chanrobles.com.ph

"In the presence of this marked contradiction, and being compelled to inquire into the truth of the matter, we are forced to think that the person who would consider himself aggrieved at the kiss given the girl Concepcion Lat, in the street and in the presence of several witnesses, would undoubtedly be Exequiel Castillo, the suitor of the girl and it would appear to be a reasonable conclusion that he himself, highly offended at the boldness of Jose Laurel, was the person who wished to demand explanation of the offense." (At p. 263.)

Applying the Laurel case to the present one, the Dofilez spouses who felt aggrieved must have been the aggressors.

The appellant points to the fact that his wife sustained bolo wounds and from this circumstance it is suggested that the deceased Gonzales spouses were the aggressors. This suggestion is shattered by the fact that even Mamerta Gonzales sustained bolo wounds inflicted by her husband. The explanation is that after Cecilio had been shot he tried to go after the appellant, flailing his bolo in the process but weakened by his wounds he hit not only Anita Dofilez but also his own wife.

In the light of the foregoing, the appellant’s claim of self-defense is not impressed with merit and the only other matter which has to be considered is whether the crime committed is simple homicide or murder.

The information alleges treachery and evident premeditation as qualifying circumstances. The appellant denies their existence. We hold that there was treachery because the attack on the Gonzales spouses was sudden and they had no opportunity to defend themselves or to seek cover. There was also evident premeditation because, as Thelma Nangan testified, there was a threat to kill even before July 12, 1969. (TSN, pp. 171-174.)

The appellant is guilty of double murder because the victims were killed with different bursts of fire from his gun and not from a single shot.

Under the circumstances it would be appropriate to impose two death penalties on the appellant but for lack of the necessary number of votes, two reclusion perpetua are imposed instead.

WHEREFORE, the judgment under review is hereby modified in that Patrocinio Dofilez shall suffer the penalty of two (2) reclusion perpetua and ordered to indemnify the heirs of the deceased spouses the amount of Sixty (P60,000.00) Thousand Pesos and to pay the costs.

SO ORDERED.

Fernando, C.J., Teehankee, Aquino, Concepcion, Jr., Guerrero, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.



MAKASIAR, J., dissenting:chanrob1es virtual 1aw library

The appellant should be convicted only of one homicide and one murder, both mitigated by obfuscation and voluntary surrender.

In the case of the deceased Cecilio Gonzales, neither treachery nor evident premeditation was established. It is not shown that the appellant decided to kill Cecilio Gonzales before going to the Gonzales premises with the carbine, when he arrived at such decision, and the duration to reflect thereon until its execution. The mere fact that he was armed with a carbine, does not demonstrate that he already was determined to kill the victim Cecilio Gonzales before arriving at the Gonzales premises that fateful afternoon of July 12, 1969. Such fact may indicate merely that he intended to use the carbine for defense of himself and his wife in case Cecilio Gonzales should assault them or should become violent. This is emphasized by the fact that upon reaching the Gonzales premises, he placed the carbine against the wire fence and proceeded to wash his feet at the artesian well of the Gonzaleses in the presence of the Gonzales’s 15-year-old daughter Evangeline and a school teacher, Felisa Matabalan, who were respectively bathing and washing clothes by the artesian well. The fact that the attack was sudden does not necessarily mean that it was treacherous, because, as stated before, appellant placed the carbine against the fence and, while washing his feet, he just admonished the deceased Cecilio Gonzales "to tell his wife not to utter obscene words." Upon hearing the admonition addressed by appellant to her husband Cecilio Gonzales, Mamerta angrily replied, "What is that? I’m here. You are in hell." This further angered appellant. Mamerta Gonzales, wife of the victim Cecilio, was reputedly the source of the gossip that appellant was having carnal intercourse with the daughter of his wife Anita by a previous husband, which gossip obfuscated Appellant.

With respect to the shooting of Mamerta Gonzales, there is no evident premeditation, because after the appellant shot Cecilio, he ran away, followed by his wife Anita. But Cecilio, although mortally wounded, pursued both of them, brandishing his bolo and in the process, wounded both his wife Mamerta and Anita. The sight of his wife being attacked by the deceased Cecilio with his bolo, caused appellant to turn back and to fire repeatedly at the wounded Mamerta, who was then crying while embracing her injured husband, who fell to the ground as he pursued appellant and his wife Anita.

Treachery qualified the killing of Mamerta who could not defend herself as she embraced her dying husband even as her eyes were blinded by the tears streaming down her cheeks.

As aforesaid, both homicide and murder are mitigated by obfuscation and voluntary surrender.

1. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; TREACHERY; NOT PRESENT WHERE VICTIM WAS SUFFICIENTLY FOREWARNED OF APPELLANT’S PRESENCE. — In the instant case, it does not appear how and in what position the victim was when he was killed so that it cannot be said for certain that the accused had adopted a mode or means of attack tending directly to insure or facilitate the commission of the offense without risk to himself arising from the defense or retaliation which the victim might put up. The Solicitor General also agreed with the defendant’s counsel that treachery is not present in the killing of PC Constable Aurelio M. Canela since the deceased was actually warned by PC Sgt. Saway not to remain standing but seek cover because of the known presence of the accused in the vicinity, but the said deceased disregarded the warning. Considering that PC Constable Canela had been sufficiently forewarned of the presence of the appellant in the vicinity and that he was not completely deprived of an opportunity to prepare and repel or avoid the aggression, treachery cannot be appreciated.

2. REMEDIAL LAW; EVIDENCE; AGGRAVATING CIRCUMSTANCES MUST BE PROVED IN AN EVIDENT AND INCONTESTABLE MANNER. — The circumstances qualifying or aggravating the act of killing a human being must be proved in an evident and incontestable manner, mere presumptions or deductions from hypothetical facts not being sufficient to consider them justified (U.S. v. Barbosa, 1 Phil. 741 [1903]; U.S. v. Perdon, 4 Phil. 141 [1905]; U.S. v. Asilo, 4 Phil. 175 [1905]; People v. Ramiscal, 49 Phil. 104).

3. ID.; ID., JUDICIAL CONFESSION OF GUILT ADMITS ALL THE MATERIAL FACTS ALLEGED IN THE INFORMATION; EXCEPTION. — It may be true that a judicial confession of guilt admits all the material facts alleged in the information, including the aggravating circumstances listed therein, as stated by the trial judge, yet where there has been a hearing and such circumstance was disproven by the evidence, they should be disallowed in the judgment (People v. Boyles, 120 Phil. 92).

4. CRIMINAL LAW; AGGRAVATING CIRCUMSTANCES; EVIDENT PREMEDITATION; RULED OUT IN CASE AT BAR. — Evident premeditation must be ruled out in view of the absence of sufficient proof that a plan to kill the victims existed, the execution of which was preceded by deliberate thought and reflection. Beside, with respect to the killing of PC Constable Canela, only ten minutes passed from the time the accused escaped from the Municipal Jail up to the time he shot PC Constable Canela near the cemetery, so that there was no lapse of time during which he could have deliberately planned the killing of the said PC Constable and meditated on the consequences of his act.

5. ID., ID.; CONTEMPT OF OR WITH INSULT TO THE PUBLIC AUTHORITIES; NOT ATTENDANT WHERE VICTIM WAS MERE AGENT OF A PERSON IN AUTHORITY. — The aggravating circumstance that crimes were committed in contempt of or with insult to the public authorities cannot be appreciated since Pat. Gelera and PC Constable Canela were the very ones against whom the crime were committed. Besides, Pat. Gelera and PC Constable Canela are not persons in authority, but merely agents of a person in authority (People v. Verzo, 129 Phil. 628).

6. ID.; ID., UNINHABITED PLACE; NOT APPRECIATED IN CASE AT BAR. — The lower court also found the killing of PC Constable Canela was committed in an uninhabited place. It has not been shown, however, that the offense was committed in an isolated place, far from human habitation. In order that the aggravating circumstance of the commission of a crime in an uninhabited place may be considered, it is necessary that the place or occurrence be where there are no houses at all, a considerable distance from the village or town, or where the houses are a great distance apart (U.S. v. Salgado, 11 Phil. 56). Here, PC Sgt. Saway merely declared that the place where PC Constable Canela was shot was about 700 meters away from the Municipal Building of Bulalacao, Oriental Mindoro, which does not satisfy the requirement. Besides, the record does not show that the place was intentionally sought by the accused to facilitate the commission of the crime. The accused was trying to evade his pursuers, PC Constable Canela among them, and their encounter was purely by chance. The lower court, therefore, erred in finding that the crime was committed in an uninhabited place.

7. ID., ID.; ABUSE OF SUPERIOR STRENGTH; RULED OUT IN CASE AT BAR. — Finally, the aggravating circumstance of abuse of superior strength must also be ruled out since there is no direct evidence that the accused employed superior strength in the killing of Pat. Gelera. The Accused was then a detainee and was unarmed while Pat. Gelera had his service pistol with him. With respect to PC Constable Canela, the accused was alone against three armed pursuers, namely: PC Sgt. Saway, PC Constable Canela, and Pat. Nicandro Garcia, and a civilian by the name of Fred Barcelona.

At about 5:30 o’clock in the afternoon of October 26, 1971, the accused Rudy Tiongson escaped from the Municipal Jail of Bulalacao, Oriental Mindoro, together with George de la Cruz and Rolando Santiago, where they were detained under the charge of Attempted Homicide. While in the act of escaping, the said Rudy Tiongson killed Pat. Zosimo Gelera, a member of the police force of Bulalacao, Oriental Mindoro, who was guarding the said accused, and PC Constable Aurelio Canela of the PC Detachment stationed in Bulalacao, Oriental Mindoro, who went in pursuit of them.

By reason thereof, Rudy Tiongson was charged with Murder, in two separate informations, committed as follows:chanrob1es virtual 1aw library

1. Crim. Case No. R-DJC-243:jgc:chanrobles.com.ph

"That on the 26th day of October, 1971, at 6:00 o’clock in the evening, more or less, at Rizal, of the Municipality of Bulalacao, Province of Oriental Mindoro, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, RUDY TIONGSON, conspiring and confederating with Rolando Santiago and George de la Cruz, who are both at large by reason of their forced escape, and with treachery, wilfully, unlawfully and feloniously waited in ambush, waylaid and shot one C2C AURELIO M. CANELA, a member of the local Philippine Constabulary Command, while the latter was in hot pursuit of said accused who had earlier escaped from custody, thus fatefully resulting to the instantaneous death of the victim.

That the commission of the offense was qualified by the circumstance of treachery, and aggravated by the circumstances of evident premeditation, in contempt of or with insult to the public authorities, nocturnity, committed in an uninhabited place and with abuse of superior strength."cralaw virtua1aw library

2. Crim. Case No. R-DJC-244

"That on the 26th day of October, 1971, at 5:30 o’clock in the afternoon, more or less, inside of the Municipal Building, of the Municipality of Bulalacao, Province of Oriental Mindoro, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused, RUDY TIONGSON, conspiring and confederating with George de la Cruz and Rolando Santiago, and under the pretext that they would answer the call of nature, convinced Police First Class Patrolman Zosimo Gelera to allow them to go out from their being confined and detained in the Municipal Jail of same Municipality by virtue of a previous offense, and while still hardly out of said jail, ganged up said Zosimo Gelera, took the latter’s service pistol, and with it, with treachery, shot point blank said police officer at his right cheek, tragically resulting to the victim’s instantaneous death, and thereafter, made good their escape.

That the offense is qualified by the circumstance of treachery, and aggravated by the circumstances of evident premeditation, in contempt of or with insult to the public authorities and with abuse of superior strength."cralaw virtua1aw library

Upon arraignment, the said accused, assisted by counsel de oficio, pleaded guilty to both informations. The trial court, however, did not render judgment outright, but ordered the prosecution to present its evidence, after which, it sentenced the said accused to suffer the death penalty in each case, to indemnify the heirs of the victims in the amount of P12,000.00 and to pay the costs.

The death penalty having been imposed, the cases are now before the Court for mandatory review.

1. Able counsel appointed for the accused first claims that the acceptance of the plea of guilty was precipitate since the trial judge did not ascertain from the accused that the latter was aware of the consequences of his plea of guilty and that he fully understood the significance and meaning thereof. Wherefore, he prays that the cases be returned to the court below for proper proceedings.

The norm that should be followed where a plea of guilty is entered by the defendant, especially in cases where the capital penalty may be imposed, is that the court should be sure that defendant fully understands the nature of the charges preferred against him and the character of the punishment provided by law before it is imposed. For this reason, the Court requires that in every case under a plea of guilty, where the penalty may be death, the trial court should call witnesses for the purpose of establishing the guilt and degree of culpability of the defendant and not only to satisfy the trial judge but to aid the Supreme Court in determining whether accused really and truly understood and comprehended the meaning, full significance and consequences of his plea. 1

In the instant case, the trial judge required the taking of testimony as to the circumstances under which the crime was committed before passing judgment so that the resulting verdict cannot in any way be branded as deficient.

2. Counsel also contends that the evidence presented by the prosecution does not warrant, nor support, the finding that the killing of Pat. Zosimo Gelera was qualified by treachery since the prosecution failed to present any eyewitness who directly saw the killing of Pat. Gelera. The Solicitor General agrees with counsel for the accused.

According to the Revised Penal Code, 2 "there is treachery when the offender commits any of the crimes against the person, employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make."cralaw virtua1aw library

In the instant case, it does not appear how and in what position the victim was when he was killed so that it cannot be said for certain that the accused had adopted a mode or means of attack tending directly to insure or facilitate the commission of the offense without risk to himself arising from the defense or retaliation which the victim might put up.

Pat. Nicandro Garcia of the Bulalacao police force merely declared that he was in his house, about 15 meters away from the municipal building when the accused Rudy Tiongson and his companions escaped from prison, 3 and he did not see the accused shoot Pat. Gelera. 4

Police Chief Edwardo Borwangga did not also see the accused Rudy Tiongson shoot Pat. Gelera. He declared that Pat. Gelera was already dead when he arrived at the municipal building in the afternoon of October 26, 1971. 5

PC Sgt. Teotimo Saway, who led the pursuit of the escaped detainees, declared that he was in one of the stores in front of the Bulalacao municipal building, about 60 meters away, when he heard two (2) gunshots coming from the direction of the municipal building, 6 and Pat. Gelera was already dead when he saw him. 7

The circumstances qualifying or aggravating the act of killing a human being must be proved in an evident and incontestable manner, mere presumptions or deductions from hypothetical facts not being sufficient to consider them justified. Thus, in the case of U.S. v. Barbosa, 8 the Court said that "since the case does not furnish any evidence to the effect that Barbosa had formed the deliberate, premeditated intention to take the life of his wife, and there was no eyewitness as to the manner in which the deceased was strangled; consequently there is no provision of law under which we can hold that the crime was committed with treachery, and it must be borne in mind that the qualifying circumstances of a crime in its commission, in order to be considered, must be established by competent evidence as well as the crime to which they relate."cralaw virtua1aw library

In the case of U.S. v. Perdon, 9 the Court said that since "neither this witness nor any other gives any particulars whatever as to the manner in which the aggression was made, nor how the act which resulted in the death of the deceased began and developed; and this being the case, it can not be established from mere suppositions, drawn from circumstances prior to the very moment of the aggression, that the accused had employed means tending to insure its success without any danger to his person, which constitutes treachery (alevosia) as defined by the Penal Code. The circumstances specifying an offense or aggravating the penalty thereof must be proved as conclusively as the act itself, mere suppositions or presumptions being insufficient to establish their presence according to law. No matter how truthful these suppositions or presumptions may seem, they must not and can not produce the effect of aggravating the condition of the defendant."cralaw virtua1aw library

The Court, in U.S. v. Asilo, 10 also ruled that since it was not established "that the aggressors employed any means which might have rendered all defenses impossible for the deceased, inasmuch as no one witnessed the very act of aggression, there is not sufficient ground to establish the conclusion that the attempt which deprived Anastacio Claridad of his life was made with treachery (alevosia). The treachery can in no way be presumed, but must be fully proven in order to be appreciated for the effects of the Penal Code."cralaw virtua1aw library

In People v. Ramiscal, 11 the Court rejected the claim that treachery was present because "at the time that the accused inflicted the wound upon the deceased there was not a single eyewitness, for when the witnesses Umali and Chua Chuan entered the store the wound had already been inflicted."cralaw virtua1aw library

The Solicitor General also agreed with the defendant’s counsel that treachery is not present in the killing of PC Constable Aurelio M. Canela since the deceased was actually warned by PC Sgt. Saway not to remain standing but seek cover because of the known presence of the accused in the vicinity, but that the said deceased disregarded the warning. The pertinent portion of the testimony of PC Sgt. Saway reads, as follows:jgc:chanrobles.com.ph

"FISCAL SADICON:chanrob1es virtual 1aw library

Q Were you alone while you were pursuing those three escaping prisoners?

A No, sir.

Q Who was your companion if there was any?

A Pat. Nicandro Garcia, sir.

Q While yon were pursuing these prisoners what happened next?

A When we were already along the mountain then watching for the appearance of the three escapees, I saw C2C Aurelio Canela, sir.

Q What does this C2C mean?

A Constable Second Class, sir.

Q After seeing C2C Aurelio Canela approaching while you were waiting for the three escapees what did you do?

A I signaled him to lie flat and indicated to him where the escapees seem to be moving, sir.

Q Then what did C2C Canela do upon your signal?

A He continued walking towards me and at the precise moment I signaled him again to lie down because the escapees-prisoners were there, sir.

Q After that what happened?

A He did not heed my instruction and because of that I approached him and tried to hold him instructing him to lie down but on that precise moment two shots were fired, sir.

Q From what direction those two shots came from?

A From my left approximately 4 meters away from me, sir.

Q What happened after hearing those two shots?

A I saw Canela already hit and shouting ‘aruy’, sir." 12

Considering that PC Constable Canela had been sufficiently forewarned of the presence of the appellant in the vicinity and that he was not completely deprived of an opportunity to prepare and repel or avoid the aggression, treachery cannot be appreciated.

Since treachery, which would qualify the killing of Pat. Gelera and PC Constable Canela to Murder, was not present, the crimes may only be punished as Homicide. It may be true that a judicial confession of guilt admits all the material facts alleged in the information, including the aggravating circumstances listed therein, as stated by the trial judge, yet where there has been a hearing and such circumstances are disproven by the evidence, they should be disallowed in the judgment. 13

3. We also agree with the parties that the aggravating circumstances of (1) evident premeditation, (2) in contempt of or with insult to public authorities, (3) uninhabited place, and (4) abuse of superior strength were not present in the commission of the crimes.

Evident premeditation must be ruled out in view of the absence of sufficient proof that a plan to kill the victims existed, the execution of which was preceded by deliberate thought and reflection. Besides, with respect to the killing of PC Constable Canela, only ten minutes passed from the time the accused escaped from the Municipal Jail up to the time he shot PC Constable Canela near the cemetery, 14 so that there was no lapse of time during which he could have deliberately planned the killing of the said PC Constable and meditated on the consequences of his act.

The aggravating circumstance that the crimes were committed in contempt of or with insult to the public authorities cannot also be appreciated since Pat. Gelera and PC Constable Canela were the very ones against whom the crime were committed. Besides, Pat. Gelera and PC Constable Canela are not persons in authority, but merely agents of a person in authority. 15

5. The lower court also found that the killing of PC Constable Canela was committed in an uninhabited place, It has not been shown, however, that the offense was committed in an isolated place, far from human habitation, In order that the aggravating circumstance of the commission of a crime in an uninhabited place may be considered, it is necessary that the place of occurrence be where there are no houses at all, a considerable distance from the village or town, or where the houses are a great distance apart. 16 Here, PC Sgt. Saway merely declared that the place where PC Constable Canela was shot was about 700 meters away from the Municipal Building of Bulalacao, Oriental Mindoro, 17 which does not satisfy the requirement. Besides, the record does not show that the place was intentionally sought by the accused to facilitate the commission of the crime. The accused was trying to evade his pursuers, PC Constable Canela among them, and their encounter was purely by chance. The lower court, therefore, erred in finding that the crime was committed in an uninhabited place.

6. Finally, the aggravating circumstance of abuse of superior strength must also be ruled out since there is no direct evidence that the accused employed superior strength in the killing of Pat. Gelera. The accused was then a detainee and was unarmed while Pat. Gelera had his service pistol with him. With respect to PC Constable Canela, the accused was alone against three armed pursuers, namely: PC Sgt. Saway, PC Constable Canela, and Pat Nicandro Garcia, and a civilian by the name of Fred Barcelona. 18

As heretofore stated, the accused is guilty only of the crime of Homicide in the killing of PC Constable Canela and Pat. Gelera. The Solicitor General recommends that the accused should be sentenced to suffer imprisonment of from 8 years and 1 day to 14 years and 8 months, with the accessory penalties, for each homicide committed by him. The penalty recommended is within the range provided by law.

WHEREFORE, with the modification that the accused Rudy Tiongson should be sentenced to suffer imprisonment of from eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years and eight (8) months of reclusion temporal, as maximum, for each homicide committed by him, the judgment appealed from should be, as it is hereby, AFFIRMED. The indemnity to be paid to the heirs of the victims is hereby increased to P30,000.00 in each case.

SO ORDERED.

Aquino, Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.

Fernando, C.J., concurs in the result.

Teehankee, J., took no part.

Makasiar, J., I reserve my vote.

Endnotes:

---

1. People v. Gonzales, L-34674, Aug. 6, 1979, 92 SCRA 527 and other cases cited therein.

2. Art. 14, No. 16.

3. tsn. of Dec. 20, 1971, p. 11.

4. Id., p. 4.

5. Id., p. 13.

6. tsn. of Dec. 20, 1972, p. 2.

7. Id., p. 4.

8. 1 Phil. 741 (1903).

9. 4 Phil. 141 (1905).

10. 4 Phil. 174 (1905).

11. 49 Phil. 104.

12. tsn. of Jan. 4, 1972, p. 3.

13. People v. Boyles, 120 Phil. 92.

14. tsn of Dec. 20, 1971, p. 11.

15. People v. Verzo, 129 Phil. 628.

16. U.S. v. Salgado, 11 Phil. 56.

17. tsn. of Jan. 4, 1972, p. 11.

18. tsn. of Dec. 20, 1971, p. 10; tsn of Jan. 4, 1972, p. 4.

1. REMEDIAL LAW; EVIDENCE; EXTRAJUDICIAL CONFESSION; CIRCUMSTANCES IN CASE AT BAR SHOWING VOLUNTARINESS THEREOF. — The allegation that he was coerced and maltreated giving his confession, Exhibit "C", was not corroborated considering that Maternal had not filed any case whether administrative, criminal or civil against the persons who allegedly maltreated and forced him to sign the "Salaysay" (Exhibit "C"). And, the claim is belied by his failure to present a medical certificate on the injuries allegedly sustained as a consequence of the supposed maltreatment made by the police when he made the confession. Municipal Judge Nicolas Feliciano testified that when the said confession was presented to him, he read it to appellant and asked if he is willing to sign the same voluntarily. Maternal replied in the affirmative and then signed the document, Exhibit "C", which discloses incidents in details the police investigators were not in a position to know. The disclosures were made by him soon after his apprehension, leaving no opportunity for the police investigators or anyone else to concoct a story.

2. CONSTITUTIONAL LAW; 1973 CONSTITUTION; BILL OF RIGHTS; RIGHT TO COUNSEL DURING CUSTODIAL INVESTIGATION; PROVISION AFFORDING SAME HAS NO RETROACTIVE EFFECT. — The fact that appellant was not assisted by counsel of his choice during the custodial investigation as required by Section 20, Article IV of the Constitution does not render the extra-judicial confession executed by him previous to the effectivity of the new Constitution inadmissible (Magtoto v. Manguera, 63 SCRA 4).

3. REMEDIAL LAW; EVIDENCE; CONFESSION, PRESUMED VOLUNTARY. — The rule on confession is that "the declaration of an accused expressly acknowledging his guilt of the crime charged, maybe given in evidence against him" (Sec. 29, Rule 130, Revised Rules of Court). If the same is made freely and voluntarily, the confession constitutes an evidence of high order since it is supported by the strong presumption "that no person of normal mind will deliberately and knowingly confess himself to be the perpetrator of a crime unless prompted by truth and conscience (U.S. v. de los Santos, 24 Phil. 329). In a latter case, the Court ruled that "a confession is admissible as evidence, and it is presumed to be voluntary until the contrary is shown. Before a confession can be set aside, both the confession and the reasons or motives given for its repudiation should be carefully scrutinized. It would be unsound practice for the court to disregard the confession of an accused simply because the accused repudiates it during the trial (People v. Dorado, 30 SCRA 53)."

Mandatory review of the decision rendered in Criminal Case No. 4337 of the then Court of First Instance of Palawan, entitled, "People v. Carlos R. Maternal, Emilio G. Amar, Jr., Zosimo Igao, alias ‘Sosing’ and Norberto Relojas, alias ‘Ovit’", the dispositive portion of which reads:jgc:chanrobles.com.ph

"The information filed is ‘robbery in band with murder.’ However, the facts as established in Maternal’s extra-judicial confession is only simple robbery with homicide, there being no more than three armed men who appeared to have participated in the commission of the offense. The penalty for this crime is reclusion perpetua to death. Considering the accused Carlos Maternal’s voluntary admission of guilt and the provision of Art. 160 of the Revised Penal Code relative to quasi-recidivism, the penalty imposable against Maternal who was serving sentence at the time of the commission of the offense, is the maximum which is death. However, the Court realizes that Carlos Maternal had no intention to commit so grave a wrong as borne out by the fact that he was not shown to have joined in the stabbing and the fact that he was the one who admonished his companions to desist from the stabbing.

"In view of all the foregoing considerations, the Court hereby imposes upon Carlos Maternal, for the offense as found by this Court, the extreme penalty of death with the recommendation to His Excellency, the President of the Philippines, that he be extended executive clemency for the commutation of this penalty to reclusion perpetua.

"There being no evidence on hand to establish the guilt of Zosimo Igao and Emilio Amar, Jr., beyond reasonable doubt, the Court holds them not guilty of the offense charged and orders their immediate release from confinement." (pp. 29-30, Rollo)

It appears that about 7:00 in the evening of August 27, 1969, Juan Cabasal left his house to go to Panamonton Beach in Barrio Tagpirara, Municipality of Brooke’s Point, Palawan, to keep watch over his boat and sleep there. He brought with him his radio-phono marked "Fujiya", his bolo, a flashlight and a blanket. When he did not return home the following morning, his sister Adelaida Cabasal went looking for him. Failing to find him, she went to the municipal building to ask help from the police. Likewise, Restituto Cabasal, went in search for his brother, Juan, who he knew had slept in a banca the previous night. He went to the Philippine Constabulary authorities at Brooke’s Point and reported the matter. The Acting Chief of Police sent out two men to Panamonton Beach to help look for the missing Juan Cabasal. About two o’clock in the afternoon of August 28, 1969, the search party found Juan Cabasal under the sea, already dead, about twenty meters from his banca.

The Municipal Health Officer of Brooke’s Point, Dr. Domingo Sy Siong, conducted an autopsy of the deceased Juan Cabasal and found that the latter sustained eleven (11) lacerated wounds in the different parts of his body, five (5) of which were fatal and could have been caused by sharp edged and blunt edged instruments.

In search for the persons responsible for Cabasal’s death, the police had two persons in mind, namely: Zosimo Igao and Norberto Relojas. On September 11, 1969, Acting Chief of Police Francisco Marquez and some policemen went to Barrio Tagpirara to apprehend these two suspects. In the course of their search, the peace officers found a hideout where they came upon the "Fujiya" radio-phono of the deceased Juan Cabasal in the possession of an occupant who turned out to be appellant Carlos Maternal, an escape-convict from the Iwahig Penal Colony. The police placed Maternal under arrest and, upon investigation, he admitted that he and three others were the ones responsible for the death of Juan Cabasal. He was brought to the Office of the Chief of Police for investigation. He gave a statement which was reduced to writing (Exhibit "C") by Pat. Eliseo Crespo at about 11:35 in the evening of September 13, 1969. The following morning, the statement was given for him to read and change whatever was wrong with it. The only correction that Maternal made was his prison number which he claimed was wrong. Thereafter, Pat. Sunico accompanied Maternal to the Office of Municipal Judge Nicolas Feliciano who propounded questions to appellant regarding his name and whether the statement, Exhibit "C", was his. The judge then read the questions and answers appearing therein to Maternal, afterwhich he asked the latter whether he was willing to sign the same. Maternal replied in the affirmative and signed the statement, Exhibit "C." Judge Feliciano then made him swear to the truth of said statement, after which the judge signed it himself.

On the witness stand, appellant Maternal testified that about 10:00 in the evening of August 27, 1969, he was at Tanyang Bubog, a place some three (3) kilometers from Panamonton. He was with Virgilio Camus, Rodolfo Madera, and Munton Muslim. They all went out looking for a banca to ride. Virgilio Camus pointed to them a banca, part of which was resting on the sand while the rear was on the water. Camus woke up the man who was sleeping in the banca and told him to start the engine. When the man refused, Camus hacked him with a bolo. Appellant Maternal shouted at Camus to stop hacking the victim who fell into the water. When Camus and Madera failed to start the engine, they ran away. He (appellant) followed and returned to the house where they were all staying.

Further, appellant testified that when he was investigated by the Acting Chief of Police of Brooke’s Point he was made to sign a document, the contents of which were not disclosed to him, muchless, was he able to read the same. He had to sign the statement because he would be maltreated considering that his hands were tied at his back with a rope. When at first he would not sign, the police kicked him and the chair he was sitting on fell on its side with him. On the witness stand, appellant declared that the contents of his statement, Exhibit "C", are not true.

The accused-appellant seeks a reversal of the decision, claiming that the trial court erred (1) in admitting the extra-judicial confession; (2) in holding him guilty of the crime of robbery with homicide on the basis alone of the extra-judicial confession, and (3) in imposing the maximum penalty of death.

The allegation that he was coerced and maltreated in giving his confession, Exhibit "C", was not corroborated considering that Maternal had not filed any case whether administrative, criminal or civil against the persons who allegedly maltreated and forced him to sign the "Salaysay" (Exhibit "C"). And, the claim is belied by his failure to present a medical certificate on the injuries allegedly sustained as a consequence of the supposed maltreatment made by the police when he made the confession. Municipal Judge Nicolas Feliciano testified that when the said confession was presented to him, he read it to appellant and asked if he was willing to sign the same voluntarily. Maternal replied in the affirmative and then signed the document, Exhibit "C", which discloses incidents in details the police investigators were not in a position to know. For instance, the following appears in said Exhibit "C" :jgc:chanrobles.com.ph

"3. T Kailan ka tumakas sa bilangguan ng Santa Lucia kung natatandaan mo?

S Noon pong ika-13 ng Septiembre 1968.

4. T Saan ka nagtungo noong ikaw ay tumakas sa bilangguan ng Santa Lucia?

S Dito po sa Brooke’s Point.

5. T Saan ka dito sa Brooke’s Point nagtira?

S Sa Tagpirara po.

6. T Papaano ka nabuhay sa Tagpirara at sino ang nagalaga sa iyo kung mayroon?

S Ako po ay inuupahan na magtrabaho sa lupa at bahay ni Bert Abiog sa kanilang lupa —

7. T Sa tagal ng iyong pagtratrabaho kay Bert Abiog, alam ba niya na ikaw ay takas na bilanggo sa Santa Lucia, Iwahig Penal Colony?

S Opo.

8. T Papano nalaman ni Bert Abiog na ikaw ay takas na bilanggo?

S Noong ako po ay naligo sa rancho ni Bert Abiog ay nakita ni Bert Abiog na ako ay maraming tato, at dito ay tinanong ako ni Bert Abiog kung ako ay bilanggo at ipinagtapat ko naman sa kanya na ako ay isang takas na bilanggo na galing sa Santa Lucia, Iwahig Penal Colony . . .



17. T Kanino ang radio ponograph na nahuli sa iyo kung nalalaman mo?

S Yon pong tao na pinatay namin sa tabi ng aplaya sa may bangka.

18. T Alam mo ba kung saan ang lugar na iyon at ano ang pangalan ng lugar na inyong pinagpatayan ng tao?

S Hindi ko po alam kung anong Barrio iyon.

19. T Sinabi mong yon pong tao na pinatay namin, bakit sino ang mga kasama mo na pumatay sa taong iyon na mayari ng radio?

S Apat po kami, ako, si Sosing, si Junior Amar at si Jovit.

20. T Maaari mo bang maisalaysay ang buong pangyayari at kung paano ninyo pinatay ang tao na sinasabi mong mayari ng radio?

S Opo. Humigit kumulang po sa alas dies ng gabi (10:00 p.m.) buwan po ng Agosto 1969 ngunit hindi ko po natatandaan kung anong petsa ako, si Sosing, si Jovit at si Junior Amar ay nagpunta kami sa aplaya. Noong kami ay dumating sa aplaya ay may nakita kaming nakapundong bangka at itong si Sosing at si Junior Amar ay tuloy-tuloy sa bangka. Ang ginawa po ni Sosing ay tinaga niya ang atip ng bangka at may taong lumundag na galing sa bangka at ito naman ay sinalubong ni Junior Amar ng saksak sa harap ng tao hindi ko lang alam kung saan siya tinamaan. At noong masaksak ang tao ni Junior Amar ang tao po ay nagsigaw ng ‘Tabang’ ng dalawang beses at dito ay pinagtataga siya ni Sosing hanggang sa lumubog ang tao sa dagat at dito sinabihan ni Jovit si Sosing na tama na yan Sing at kami ay nagtakbuhan na pauwi sa Tagpirara na dala ko ang radio ponograph." (pp. 20-21, Records).

The disclosures were made by him soon after his apprehension, leaving no opportunity for the police investigators or anyone else to concoct a story.

The fact that appellant was not assisted by counsel of his choice during the custodial investigation as required by Section 20, Article IV of the Constitution does not render the extra-judicial confession executed by him previous to the effectivity of the new Constitution inadmissible. In Magtoto v. Manguera, 63 SCRA 4, the Court said:jgc:chanrobles.com.ph

"A confession obtained from a person under investigation for the commission of an offense, who has not been informed of his right (to silence and) to counsel, is inadmissible in evidence if the same had been obtained after the effectivity of the New Constitution on January 17, 1973. Conversely, such confession is admissible in evidence against the accused, if the same had been obtained before the effectivity of the New Constitution, even if presented after January 17, 1973, and even if he had not been informed of his right to counsel, since no law gave the accused the right to be so informed before that date."cralaw virtua1aw library

It is also significant to note that both in his confession, Exhibit "C", as well as in his testimony in court, Maternal did not even deny but instead admitted his presence during the killing of Juan Cabasal, although he tried to exculpate himself from liability by saying that it was his three companions who killed Juan Cabasal.

The rule on confession is that "the declaration of an accused expressly acknowledging his guilt of the crime charged, maybe given in evidence against him" (Sec. 29, Rule 130, Revised Rules of Court). If the same is made freely and voluntarily, the confession constitutes an evidence of a high order since it is supported by the strong presumption "that no person of normal mind will deliberately and knowingly confess himself to be the perpetrator of a crime unless prompted by truth and conscience (US v. de los Santos, 24 Phil. 329). "In a later case, the Court ruled that "a confession is admissible as evidence, and it is presumed to be voluntary until the contrary is shown. Before a confession can be set aside, both the confession and the reasons or motives given for its repudiation should be carefully scrutinized. It would be unsound practice for the court to disregard the confession of an accused simply because the accused repudiates it during the trial (People v. Dorado, 30 SCRA 53.)."cralaw virtua1aw library

We find no reason to disregard and set aside the confession, Exhibit "C", given by appellant Carlos Maternal. The fact that the two other accused, Emilio Amar, Jr. and Zosimo Igao (Norberto Relojas has remained at-large), were acquitted because they had no confession, writing or otherwise, only shows that the police in this case did not coerce and/or force appellant Maternal to sign one. For, if he were coerced, and/or intimidated into giving and signing his statement, Exhibit "C", then said defendants Amar and Igao would also have been forced to execute their confessions. Otherwise stated, this fact gives Us additional reason to believe that Maternal gave and signed his statement freely and voluntarily.

The trial court correctly found the accused-appellant guilty of the crime charged and in imposing the maximum penalty because he committed this crime during service of penalty imposed for another previous offense (Article 160 of the Revised Penal Code). However, for lack of necessary votes the penalty is reduced to reclusion perpetua.

WHEREFORE, the judgment of conviction is AFFIRMED and appellant Carlos R. Maternal is hereby sentenced to reclusion perpetua and to indemnify the heirs of the deceased Juan Cabasal in the sum of P30,000.00. With costs.

SO ORDERED.

Fernando, C.J., Makasiar, Concepcion, Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana, Escolin, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.

Teehankee, J., took no part.

Aquino, J., I vote for the death penalty.

1. REMEDIAL LAW; EVIDENCE; CREDIBILITY OF WITNESSES; FINDINGS OF TRIAL COURT THEREON ACCORDED GREAT WEIGHT. — Appellant’s assignment of eight errors raises only one issue — credibility of the witnesses. We are guided by the settled rule that the trial court has unequalled competence to consider and determine the credibility of witnesses, in view of its unique opportunity to observe the demeanor of the witnesses on the stand, an opportunity not afforded to the appellate court (People v. Lucas Ramos y Macasiray, No. 50450, March 16, 1984; People v. Espejo, 36 SCRA 400; People v. Dorado, 30 SCRA 53).

2. ID.; ID., WEIGHT AND SUFFICIENCY; RAPE VICTIM’S TESTIMONY. — In a long line of decisions, this Court had manifested its marked receptivity to lend credence to the testimonies of rape victims who are young and immature girls as in the insight case (People v. Garcines, 57 SCRA 653; People v. Savellano, 57 SCRA 320; People v. Modelo, 35 SCRA 679; People v. Soriano, 35 SCRA 33; De los Santos v. People, 69 Phil. 321; People v. Lomibao, 55 Phil. 816; People v. Alqueza, 51 Phil. 817; People v. De Guzman, 51 Phil. 105; United States v. Rojo, 10 Phil. 369).." . . Time and time again this Court had correctly observed that no woman, especially one of tender age, would willingly expose herself to the embarrassment of a public trial wherein she would have not only to admit but also to narrate the violation of her person, if such indeed were not the case. Far better it is in not a few cases to spare herself the humiliation if there be some other way of bringing the offender to justice" (People v. Baylon, 57 SCRA 120). A victim of rape will not come out in the open if her motive is not to obtain justice (People v. Dionisio Ignacio, 60 SCRA 11, citing People v. Canastre, 82 Phil. 480). No young Filipina of decent repute would publicly admit that she bad been criminally abused, unless that is the truth; for it is her natural instinct to protect her honor (People v. Gan, 46 SCRA 667).

The instant case was instituted upon a complaint for rape subscribed and sworn to by Nenita Perez and filed by her on May 6, 1971, with the then Municipal Court of Ibaan, Province of Batangas reading as follows:jgc:chanrobles.com.ph

"The undersigned under oath hereby accuses TOMAS MONTALBO, a resident of Poblacion, Ibaan, Batangas of the crime of ‘RAPE’ committed as follows:jgc:chanrobles.com.ph

"‘That on or about December 19, 1970 in the evening, in the house of Tomas Montalbo, located at Poblacion, municipality of Ibaan, province of Batangas, Philippines and within the jurisdiction of this Honorable Court the above-named accused unlawfully, feloniously and wilfully grabbed me, embraced me, forced me to lie down despite my full force for struggle and resistance I offered him to prevent him to satisfy his animal lust had carnal knowledge upon me which caused me great pain and blood to come out and caused me moral damage to endure; the crime was committed with aggravating circumstances as follows: (1) Nocturnity, (2) Abuse of confidence, (3) Abuse of superior power and (4) Ignominy.’

"CONTRARY TO LAW" (p. 1, CFI rec.).

After the preliminary investigation, on May 25, 1971, an information for rape was filed, reading thus:jgc:chanrobles.com.ph

"The undersigned Provincial Fiscal, upon complaint of the offended party, one Nenita Perez y delos Reyes, accuses Tomas Montalbo alias Tommy of the crime of rape, defined and penalized under Article 335 of the Revised Penal Code, committed as follows:jgc:chanrobles.com.ph

"That on or about the 19th day of December, 1970, at night, in the poblacion of the Municipality of Ibaan, Province of Batangas, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously, with the use of force and intimidation, lie with and have carnal knowledge of the offended party, the said Nenita Perez y delos Reyes, a domestic servant in the household of the said accused, against her will and consent.

"That the following aggravating circumstances were present in the commission of the crime, to wit: nocturnity deliberately sought and, (2) grave abuse of confidence, said offended party being then a domestic servant in the household of the said accused.

"Contrary to law" (pp. 2-3, rec.).

On April 30, 1974, the trial court convicted the accused, thus:jgc:chanrobles.com.ph

"WHEREFORE, the Court finds the accused Tomas Montalbo alias Tommy guilty beyond reasonable doubt of the crime of rape charged in the information and hereby sentences him to reclusion perpetua, together with the accessory penalties, to indemnify the offended party in the amount of P5,000.00, without subsidiary imprisonment in case of insolvency, to acknowledge the offspring should there be any to support it, and to pay the cost. SO ORDERED" (pp. 51-52, rec.).

The Solicitor General narrated the state’s evidence as follows:jgc:chanrobles.com.ph

"The offended party, Nenita Perez, is the daughter of a laundrywoman and a carpenter from Barrio Coliat, Ibaan, Batangas. She became a household helper in the house of accused Tomas Montalbo on October 4, 1970. She was then fifteen years old. She worked for P25.00 a month (pp. 2-3 tsn, October 5, 1972).

"On November 15, 1970, Nenita Perez underwent an appendectomy at the Holy Infant Hospital and was discharged on November 21, 1970 with the advice that she rest for a month. After only two weeks however, she returned to the Montalbos’ house and resumed her duties because of the children (pp. 40-41, tsn, October 5, 1972; p. 8, tsn, October 18, 1972). The expenses for operation were paid by the Montalbos — P250.00 — chargeable to her salary. This indebtedness of her increased to P285.00 (pp. 69-70, tsn, October 5, 1972; p. 42, tsn, August 22, 1973).

"On or about December 19, 1970, in the evening, Nenita was awakened from her sleep by her master (’Ka Tommy’) shaking her feet. The accused, clad in a bathrobe, was holding a glass with a whitish substance in it and he told her to drink the contents because she was allegedly dreaming (pp. 7-8, tsn, October 5, 1972). Nenita did as told and went to the kitchen to return the glass. As she passed the living room on her way back to her room, the accused held her right hand and told her not to shout. She was able to free herself, however, and she went back to her bedroom and locked the door (pp. 10-11, tsn, October 5, 1972).

"Sometime later, Nenita sensed that the door of the bedroom was being opened. She saw the accused who told her to get up. Thinking that it was for an errand, Nenita stood up. This time the accused held her right hand and pinned it at her back, place his other hand over her mouth and told her not to shout or he would kill her. Nenita was then trying to extricate herself but the accused, holding her firmly pushed her out of the room with his knee towards the guest room about seven meters away (pp. 13-17, tsn, October 5, 1972).

"Once inside the guest room and after the door was closed, the accused forcibly put her in bed and repeated the warning if she made an outcry he would kill her. The accused then raised Nenita’s dress to her waistline, forcibly removed her panty, and went on top of her. Too scared to make an outcry because of the threat, Nenita kicked and pushed at the accused who was nevertheless able to insert his private part into her private part. After moving up and down on top of her, the accused stood up and left her (pp. 17-20, tsn, October 5, 1972).

"Nenita, still feeling spent and weak, forced herself up and went to the bathroom (p. 21, tsn, October 5, 1972). Washing herself she saw that her private part was bleeding. It was painful. She slowly returned to her bedroom, changed her panty and crept back into bed. She closed her eyes but sleep eluded her (pp. 23-26, tsn, October 5, 1972).

"On May 1, 1971, fearing that the abuse might happen again, Nenita Perez left the Montalbo residence and went to Manila. She was fetched by her father the next day and brought back to their home at Barrio Coliat and it was upon her father’s asking her the reason for her sudden departure that she finally related all that happened to her (pp. 26-28, tsn, October 5, 1972). Nenita’s mother, Justina Perez, was then in the house of the Montalbos substituting for Nenita (p. 29, tsn, October 5, 1972), just as she substituted for her during her convalescence (p. 7, tsn, October 18, 1972). Justina learned the story from Nenita’s father when she came home that afternoon. It was the next morning that she spoke about it with Nenita herself (pp. 25-26, tsn, October 18, 1972). That same morning, Justina went to the Montalbo residence to inquire from them about what she had just learned. The accused and his wife then went with Justina to fetch Nenita from her house and brought the latter with her mother back to their house. There, in front of her mother, the accused, the accused’s wife (Ka Baby) and his 70-year-old mother (Nanay Carmen), Nenita confirmed the abuse done to her by the accused who, upon being so confronted, slapped Nenita (pp. 32-34, tsn, October 5, 1972; pp. 10-12, tsn, October 18, 1972). Angered at this added insult, the girl was firmly held by her mother and led out of the Montalbo residence (p. 13, tsn, October 18, 1972).

"Mother and daughter then proceeded to the Municipal Building to file a complaint. Told to undergo a medical examination, Nenita accompanied by her parents, went to the Batangas Provincial Hospital that same day (p. 35, tsn, October 5, 1972). There, she was examined by Dra. Eufrocina V, Castillo who issued a medico-legal certificate (Exhibit ‘B’) embodying the following findings:jgc:chanrobles.com.ph

"‘1. Presence of healed hymenal laceration at 2, 5, and 7 o’clock.

‘2. Vagina admits two (2) fingers snugly.

‘3. Cervix small, closed, uterine enlarged.

‘4. Smears for spermatozoa — Failed to find spermatozoa" (p. 165, rec.; Brief for the Appellee, pp. 2-5).

Appellant is an affluent business executive being the General Manager of Combined Sales and Services, Inc., with offices in Batangas City and the financial adviser of Luis Maralit, the proprietor of Margas Shell Service Stations in Lipa City and President of Combined Sales and Services, Inc.

Confronted with this accusation, appellant interposed the defense of alibi. He further alleged that this accusation is highly fabricated and framed up against him (p. 147, CFI rec.; p. 5, t.s.n., August 22, 1973).

Appellant’s assignment of eight errors raises only one issue — credibility of the witnesses.

The appeal is devoid of merit.



WE are guided by the settled rule that the trial court has unequalled competence to consider and determine the credibility of witnesses, in view of its unique opportunity to observe the demeanor of the witnesses on the stand, an opportunity not afforded to the appellate court (People v. Lucas Ramos y Macasiray, No. 50450, March 16, 1984; People v. Espejo, 36 SCRA 400; People v. Dorado, 30 SCRA 53).

In convicting the accused, the court a quo said:jgc:chanrobles.com.ph

"There is cogency in believing her reasons. Nenita Perez is a simple barrio girl, 15 years of age and born to a laundrywoman and a carpenter. She has not much formal education and so she had to accept the lowly job of a domestic servant with a measly salary of P25.00 . . . The Court has observed her not to be a woman of loose morals capable of concocting false stories. Nor has the defense shown her to be one. It is, therefore, hard to believe that she would tell a story of defloration, allow the examination of her private parts, and thereafter permit herself to be subjected to a public trial if she was not motivated solely by a desire to have the accused apprehended and punished . . ." (Emphasis supplied).

". . . Upon the other hand, the accused is an affluent business executive and he has been observed to be of temperamental in disposition and must have lorded fear and ascendancy over his domestic helps including Nenita Perez" (pp. 32-33, rec.).

In a long line of decisions, this Court had manifested its marked receptivity to lend credence to the testimonies of rape victims who are young and immature girls as in the instant case (People v. Garcines, 57 SCRA 653; People v. Savellano, 57 SCRA 320; People v. Modelo, 35 SCRA 679; People v. Soriano, 35 SCRA 33; Delos Santos v. People, 69 Phil. 321; People v. Lomibao, 55 Phil. 816; People v. Alqueza, 51 Phil, 817; People v. De Guzman, 51 Phil. 105; United States v. Rojo, 10 Phil. 369).

". . . Time and time again, this Court had correctly observed that no woman, especially one of tender age, would willingly expose herself to the embarrassment of a public trial wherein she would have not only to admit but also to narrate the violation of her person, if such indeed were not the case. Far better it is in not a few cases to spare herself the humiliation if there be some other way of bringing the offender to justice" (People v. Baylon, 57 SCRA 120). A victim of rape will not come out in the open if her motive is not to obtain justice (People v. Dionisio Ignacio, 60 SCRA 11, citing People v. Canastre, 82 Phil. 480). No young Filipina of decent repute would publicly admit that she had been criminally abused, unless that is the truth; for it is her natural instinct to protect her honor (People v. Gan, 46 SCRA 667).

On direct examination, appellant testified as follows:jgc:chanrobles.com.ph

"Atty. dela Cruz:chanrob1es virtual 1aw library



"Q. Now, on the basis of your testimony, taken as a whole, it would appear that the testimony of Nenita together with that of his father and mother, Pedro Perez and Justina were actually not reflecting the truth, would you know of any reason why the father and the mother and Nenita Perez would testify that you have abused Nenita Perez, if you have not done so?

"A. Yes, sir.

"Q. Will you please tell the Court what the reason was?

"A. Probably, it is because of the fact that I happen to slap her.

"Q. You made mention of a slapping incident, when (did) that slapping incident (take) place?

"A. It took place sometime on May 3, 1971.

"Q. Where?

"A. At our own residence.

"Q. In Ibaan?

"A. Yes, sir.

"Q. Will you please tell the Court why did you slap Nenita Perez on that day?

"A. It so happen, sir, because sometime on April 30, 1971 she was asked to buy something and my mother noticed that she was not returning for almost an hour or more. So she followed her and actually she found out that she was somewhere talking with a certain houseboy. And then she called her and asked her to go immediately and upon her arrival, my mother scolded her and in view of which the following morning, Nenita Perez has just deserted our place without our permission.

"Q. What relation has this desertion of Nenita with having slapped her?

"A. I remember it was Monday morning and I left early our place for my office here in Batangas City with an arrangement with my wife that in case I will be going to Lipa, I have to pass by her, because she was thinking of joining me. When I returned home, I notice that this Nenita with her mother was there and according to my wife, the mother was begging us to kindly accommodate Nenita to our place. At this stage, I asked Nenita why she just deserted our place without our permission.

"Q. And what was the answer of Nenita?

"A. Instead of giving her a good reason, she pointed to my mother and shouted on the top of her voice, ‘Gawa ng putang inang matandang yaan, mura ng mura.’

"Q. To whom was this slanderous word addressed?

"A. To my mother.

"Q. And upon hearing those slanderous words, what did you do?

"A. I lost my temper and slapped her with my full strength.

"Q. And after slapping this Nenita, what happened?

"A. She shouted at the top of her voice and immediately leave our place, telling that ‘Pagpapapatayin ko kayo. Hindi ako titigil hanggang hindi ko kayo napapatay, putang-ina ninyo’" (pp. 174-178, CFI rec.; pp. 32-36, t.s.n., August 22, 1973).

On the other hand, complainant’s version of the incident is as follows:jgc:chanrobles.com.ph

"FISCAL:chanrob1es virtual 1aw library



"Q. Before reporting this matter on May 3 to the police of Ibaan, Batangas, where did you come from?

"A. From the house of Ka Tommy, sir.

"Q. Who were your companions when you came from the house of Ka Tommy?

"A. He and his wife fetched me, sir.

"Q. Who were then with you when according to you you were fetched by the spouses?

"A My mother, sir.

"Q. You referred to spouses, to whom do you refer to?

"A. Ka Tommy and Ka Baby, sir.

"Q. When you speak ‘kinaon ako ng mag-asawa,’ where did you, your mother and the spouses go?

"A. To their house, sir.

"Q. Were you and your companion able to reach the house of Ka Tommy?

"A. Yes, sir.

"Q. When was that?

"A. On May 3, sir.

"Q. Now, when you, your mother and spouses Tomas Montalbo and Baby were already in the house of Ka Tommy, what happened there?

"A. Ka Baby spoke and she told me to tell what I told my mother and I did so, sir.

"Q. How did you do so?

"A. I told her ‘that is true’ sir.

"Q. To whom did you refer that statement?

"A. To Ka Baby, sir, and I attested to what her husband did to me and also to Nanay Carmen, the mother of Ka Tommy.

"Q. Could you inform the Court who were the persons present at that very moment?

"A. My mother, Ka Tommy, Ka Baby and Nanay Carmen, sir.

"Q. Do you know the name of this Baby you are referring to?

"A. Benilda Chezman, sir.

Q. After telling that to the persons present, what did Tomas Montalbo do?

"A. He slapped me, sir.

"Q. What happened next?"

A. After he had slapped me, my mother and I hurriedly left, sir" (pp. 301-304, CFI rec.; pp. 31-34, t.s.n., October 5, 1972).

The complainant’s version of the slapping incident corroborated by her parents is convincing. On the other hand, appellant’s version of the May 3 incident defies belief. On this point, the trial court said: "It must be pointed out that this story was testified to by the accused alone without corroboration from his mother, who had a firsthand knowledge of the same; hence, it is mere hearsay, an eleventh hour concoction tailored to provide the needed motive of Nenita Perez in instituting this action" (p. 44, rec.). As aptly stated by the Solicitor General: "It is hard to believe, firstly, that the ailing 70-year-old mother of the accused would go out of the house to follow the maid to the market as far as an entire kilometer, just because she did not return at once from an errand. The story about the houseboy is even less credible (p. 27, t.s.n., September 12, 1973). The said houseboy was not even presented to corroborate the same. Secondly, a youthful maid from the barrio feeling the heavy burden of debt, would not just leave the house of her master because she was scolded for an act that is not even a misdeed. And why go to Manila instead of simply going home? Thirdly, would a slapping induce one to file such a serious charge as rape? Moreover, against somebody one admittedly was indebted to? And to whose house, mother and daughter had gone, allegedly not about a rape case but a lesser misunderstanding? The story is simply unrealistic" (p. 165, rec.; p. 18, Brief for the Appellee).

Furthermore, no parents in their right frame of mind would expose their daughter, who is still of tender age and emotionally immature, to the certainty of public ridicule and shame, aside from permitting her to undergo such a dehumanizing experience of appearing in a rape trial, for a reason as trivial as a slapping incident. Appellant’s allegation to the contrary is, therefore, absolutely against human experience and standard. Consequently, complainant’s motive in instituting this action is beyond reproach. Such being the case, the complainant’s testimony to the effect that she was raped by the appellant is likewise credible. Obviously, appellant’s version of the slapping incident and imputation of an evil motive to the complainant is a desperate attempt to save himself from the consequences of his heinous act. His inability to find a more plausible motive for the complainant supports the trial court’s finding that the motive, as presented by the appellant, in filing this case against him is an "eleventh hour concoction tailored to provide the needed motive of Nenita Perez in instituting this action."cralaw virtua1aw library



Appellant’s other assignment of errors are easily and ably refuted by the Solicitor General in the appellee’s brief quoted with approval as follows:jgc:chanrobles.com.ph

"It is initially contended that the lower court erred in declaring the existence of ‘continuing threats’ against the life of the complainant Nenita Perez.

"It is likewise contended that the lower court erred in not declaring that the delay in the filing of the complainant is indicative of lack of merit. These two assigned errors, being closely related shall be discussed jointly.

"In her sworn statement of May 4, 1971 (Exhibit ‘E’), Nenita Perez was asked:jgc:chanrobles.com.ph

"‘8. T: Ito bagang mga bagay na ito ay ipinaalam mo agad sa iyong mga magulang?

S: Hindi po, dahil sa takot kong ako ay papatayin ni Ka Tommy.



"‘10. T: Nang maganap ang pagsasamantala sa iyo ay buwan pa ng Disyembre, 1970, bakit hindi ka agad umalis doon upang isumbong sa iyong mga magulang ang naganap sa iyo?

S: Sa dahilan na nga po na natatakot ako na baka ako ay kanyang patayin at ang ikalawa po ay malaki ang utang namin sa kanila, na umaabot sa halagang P285.00.’ (pp. 2-3, rec.).

"Nenita declared the same thing in Court: that she could not leave because of her debt; that she went to Manila because of the threat and could not tell her mother for fear she would be made to return (pp. 69-73, tsn, October 5, 1972).

"Nenita was fifteen when she executed her sworn statement on May 4, 1971, about four months and a half from December 19, 1970 when she was abused. On said date, therefore, she was barely out of her childhood years, unlettered and a hired helper. On the other hand, the accused was her employer, a businessman, well-off and educated. He was observed by the court to be of a temperamental disposition (p. 422, rec.). There can be no doubt the accused’s ascendancy over the girl especially when considered side by side with the obvious poverty and servility to the latter and her family. Not only was Nenita working at such an early age, her mother likewise performed laundry services for the Montalbos (p. 46, tsn, October 5, 1972). The mother substituted for Nenita when she was recuperating from her operation as well as when Nenita left on May 1st, 1971 (p. 7, tsn, October 18, 1972; p. 29, tsn, October 5, 1972). It is not difficult to conclude that overpowering fear initially overcome whatever anger and desire for justice she must have felt for the assault she suffered. Added to that, she owed her master P285.00, which must have seemed an enormous sum to a girl who earned a measly P25.00 a month. To those in the barrios, and even for adults with more judicious minds, paying one’s debt is a matter of honor. Verily, it would have taken enormous courage and, what seemed to her then, a sense of ingratitude combined with fears of the consequences for one so young, and so situated to have denounced her master there and then. Were it not for the prospect of a repetition looming and seeming worse than the state of helplessness she already was in, Nenita would nave prolonged her silence — and her doing so would not have made the abuse less criminal or less true.

"The self-serving testimony about the accused being a model husband and a paragon of virtue was correctly disregarded by the trial court. From a reading of the records alone, the testimony that if the accused could and does manhandle his own wife with more reason could he hurt a helper, appears more credible.

"Whatever delay there was in the filing of the complaint was thus sufficiently explained. It certainly does not detract from the merits of her case (People v. Catli, L-11641, November 29, 1962). It would be too much to expect a very young unlettered girl to know the legal ill-effects of her silence.

"Refutation of the Second Assignment of Error.

"It is likewise averred that the lower court erred in declaring that the element of ‘force and intimidation’ was established by clear and convincing evidence.

"As testified by the offended party, once inside the guest room and the door was closed, she was told again not to shout as he would kill her (pp. 19-65, tsn, October 5, 1972). She nevertheless resisted by kicking and pushing the accused. Although her limbs were free, the accused was boxing her at the thigh. And after a while of exerting all efforts, she noticed she was weakening, feeling cold all over and getting sleepy (pp. 62-65, tsn, October 5, 1972). It may be added that only five weeks earlier, she had undergone an operation.

"‘When the offended girl stated that she defended herself against the accused as long as she could, but he over-powered her and held her till her strength gave out, and then accomplished his vicious purpose there is evidence of sufficient force.’ (People v. Momo, 56 Phil. 86).

"There was, coupled with the above force, sufficient intimidation. The threat may have been verbal, but considering the circumstances this was sufficient. Nenita was not only of tender age to be easily coerced, she had reason to be intimidated (pp. 58-59, tsn, October 5, 1972; pp. 16-18, tsn, March 9, 1973).

"Refutation of the Fourth Assignment of Error.

"It is next contended that the lower court erred in not declaring the complaining witness a liar. Appellant points out certain alleged discrepancies in the testimony of the offended party.

"First it is alleged that in the history of Nenita copied by Dra. Castillo at the back of the medical certificate she issued after examining the girl, the latter said she was used twice whereas nowhere in her testimony in court did she make reference to being abused twice (pp. 6-7, tsn, January 11, 1973). Also, that she claimed therein that she felt dizzy after drinking from the glass.

"In People v. Gan, 46 SCRA 67, it was held by this Honorable Court that:jgc:chanrobles.com.ph

"‘Variance in testimony of victim as to number of times she was abused may be excused for when she made her first statement before the judge she was in a shocking experience and it is understandable that in such a state, confusion and even error on minor details would occur.’

"It must be remembered that when Nenita went for a medical examination she had just come from a confrontation with the accused at the latter’s house. This experience alone would have agitated her but in addition, she was slapped. Obviously, she was in a troubled state. Besides, the inquiry made by Dra. Castillo did not involve a point by point examination as to how the rape was perpetrated. It was a condensed version of the event so much so that when Nenita said she felt dizzy, it did not follow that she felt dizzy immediately after drinking. From the testimony of Nenita in court, when she was already being asked in detail, she testified that it was while she was struggling with the accused who was on top of her and she was kicking and pushing that she felt she was weakening (p. 64, tsn, October 5, 1972).

"It is also claimed that Nenita testified that she left the Montalbo residence in a calm manner (pp. 14-15, tsn, January 18, 1974) whereas Nenita’s mother testified that when they left the Montalbo residence after the slapping incident, Nenita was very angry (p. 36, tsn, October 18, 1973). Whether she was angry or not when she left the Montalbo residence, we fail to see how this would affect her case.

"And as to Nenita’s declaration that December 19, 1970 was a Sunday, this could very well be due to the fact that the abuse occurred late at night and the following day was Sunday. At any rate, the information states ‘on or about the 19th day of December, at night’ (p. 88, rec.).

"It is respectfully submitted that whatever discrepancies there may be in Nenita’s testimony, they were not deliberate lies on her part but would simply be traceable to the tender age of the offended party, her lack of sufficient education, and lapse of time. Discrepancies may be attributed to deficiencies in observation and recollection, misapprehension of the misleading and confusing questions during cross-examination, to the defective translation of the questions and answers, but they do not necessarily indicate a willful attempt to commit falsehood. (People v. Sangalang, 58 SCRA 737). In fact, they are evidence that the witness was not coached and was answering as spontaneously and truthfully as she could.

"The credibility of a witness is addressed to the lower court, the latter being in a much better position to observe the demeanor of the witnesses. In this case, the lower court found the testimony of the offended party logical, convincing and conclusive. Pertinent to quote here, a portion of the Decision:jgc:chanrobles.com.ph

"‘The Court has observed her not to be a woman of loose morals capable of concocting false stories. Nor has the defense shown her to be one. It is, therefore, hard to believe that she would tell a story of defloration, allow the examination of her private parts, and thereafter permit herself to be subjected to a public trial if she was not motivated solely by a desire to have the accused apprehended and punished. A woman does not easily trump up rape charges for she has much more to lose in the notoriety the case will reap for her, her honor and that of her family, than in the redress she demands’ (People v. Jose, 37 SCRA 450) (pp. 442-443, Records).

"Refutation of the Fifth Assignment of Error.

"There is likewise no error in finding the accused’s defense of alibi not full, clear and satisfactory. Aside from its inherent weakness (it was purely oral evidence as against positive identification by the offended party), it failed to meet the standard laid down by this Honorable Court in many decisions: that for alibi to be acceptable, it must be shown that the place where the accused was alleged to be when the offense was committed must be located at such distance that it was well-nigh impossible for him to be at the scene of the crime (People v. Mamangan, 59 SCRA 31; People v. Malilay, L-27938, April 22, 1975 among others).

"The distance between the accused’s residence in Ibaan, where the crime was committed, and the Maralit residence at Lipa City, where the accused was supposed to be attending a party that night of December 19, 1970, is only about fifteen (15) kilometers using the Ibaan-Lipa road. The accused and his wife testified that it took about 40-45 minutes to negotiate the distance in their jeep because of the bad roads (pp. 12-13, tsn, August 22, 1973; pp. 8-9, tsn, March 9, 1973). On the other hand, Mr. Maralit, a defense witness and the one whose party the accused allegedly attended, testified that he could negotiate the said distance in less than ten or twenty minutes (pp. 30-31, tsn, November 29, 1973).

"The accused also testified that he was especially requested by Mr. Maralit to entertain a particular Mr. Rances of Shell, Philippines, in order that the latter may not press collection of Maralit’s debt; that this guest left the party between 10:30-11:30 p.m. although the accused himself left at 2:00 a.m. already (pp. 16-18, tsn, August 12, 1973). On the other hand, Mr. Maralit, the host, testified that the said guest left his house between 9:00 and 10:00 that night (p. 10, tsn, November 29, 1973).

"Further, the accused and his wife testified that when they left the Maralit residence at 2:00 a.m. of the next day, they gave a ride to Casimiro Santos and Teobaldo Guce, taking the former to San Fernando Air Base (a distance of about five (5) kilometers from the Maralit place) and from there taking the latter to Barrio Pinagtungulan (a distance of about 5-7 kilometers from San Fernando Air Base) before proceeding home to Ibaan via Lipa (pp. 11-14, tsn., September 12, 1973); that upon reaching Ibaan they attended the Misa de Gallo because it was already about 4:00 a.m. and the church bells were ringing (pp. 16-18, tsn, August 22, 1973; p. 15, tsn, March 9, 1975).

"The lower court considered this defense of alibi very carefully in arriving at the conclusion that it was not clearly and satisfactorily shown to be physically impossible for the accused to have committed the crime. It noted that the special guest had left between 9:00 and 10:00 per the testimony of Mr. Maralit, thus relieving the accused of this primary responsibility in the party. The distance between Ibaan and Lipa is but fifteen (15) kilometers and the accused had a jeep (pp. 8-9, tsn, March 9, 1973). The claim of the accused that they brought two persons to San Fernando Air Base and Barrio Pinagtungulan before proceeding home deserves scant consideration. These two persons were not presented to corroborate this claim. Finally, the lower court noted that while reference was made to 10:00 p.m. as the time of commission, if it had taken place later, this would not have been fatal as it would be merely a mistaken estimate of time (pp. 437-441, rec.). The young girl would not have looked at a clock while being dragged, abused, or after the harrowing incident. Suffice that the approximate time is recalled.

"The defense of alibi is an issue of fact that hinges on credibility, and the credibility of an alibi depends much on the credibility of the witnesses who seek to establish it. In this respect, the relative weight which the trial judge assigns to the testimony of the witnesses must, unless patently and clearly inconsistent with the evidence on record, be accepted. (People v. Berdida, L-20183, June 30, 1966, 17 SCRA 520).

"The observations made by the Court a quo on the accused’s defense of alibi are as noted above, consistent with the evidence on record.

"Refutation of the Sixth Assignment of Error.

"In his sixth assignment of error, appellant assails the lower court for disregarding the testimony of Dra. Eufrocina Castillo. The testimony claimed to have been disregarded refers to the information allegedly obtained by the doctor from Nenita that there was a kissing incident days before Christmas and the sexual contact two weeks after the kissing event (pp. 7-8, tsn, January 11, 1973). Appellant argues that on the basis of the above, it is totally impossible that the crime could have been committed on December 19, 1970 (p. 38, Appellant’s Brief).

"Simply because the offended party used the term ‘days before Christmas’ in answer to the Doctor’s questions regarding the kissing incident, and used the term ‘weeks’ with respect to the sexual intercourse which occurred after the kissing event, does not render impossible the commission of the crime on or about December 19, 1970. Two weeks before December 19, 1970 would still be ‘days before Christmas.’ The doctor herself clarified: ‘Not few days, she just told me it is before Christmas, sir’ referring to the kissing incident (p. 19, tsn, January 11, 1973)" [p. 165, rec.; pp. 5-16, Brief for the Appellee; Emphasis supplied].

That the rape was actually perpetrated can be gleaned from the information taken by Dr. Eufrocina V. Castillo when she examined the complainant Nenita Perez, who told her that she was kissed and embraced by her "amo", herein appellant, while she was sleeping in the visitor’s room days before she was raped by the appellant on December 19, 1970. This incident shows that appellant is so degenerate that he raped his domestic helper. Thus, the doctor’s report reads:jgc:chanrobles.com.ph

"She was a maid of a certain Tommy since December, 1970. Last December before Christmas she happened to sleep in the visitor’s quarters with an open door and when she woke up her amo was kissing and embracing her — no sexual contact — 2 weeks after, she was awakened by him, asked to drink water and she felt dizzy. Used 2x" (p. 253, CFI rec., Exh.’6’).

WHEREFORE, FINDING THAT THE JUDGMENT OF THE TRIAL COURT IS IN ACCORDANCE WITH BOTH THE FACTS AND THE LAW, THE SAME IS HEREBY AFFIRMED, WITH THE MODIFICATION THAT THE CIVIL INDEMNITY SHOULD BE RAISED TO THIRTY THOUSAND (P30,000.00) PESOS.

SO ORDERED.

Aquino, Concepcion, Jr., Guerrero, Abad Santos, Escolin and Cuevas, JJ., concur.

1. REMEDIAL LAW; EVIDENCE; FINDINGS OF FACT OF THE AGRARIAN AND APPELLATE COURTS, CONCLUSIVE ON APPEAL. — The factual conclusions of the Appellate Court are binding and conclusive on this Court. The Agrarian Court made the same findings. Only legal questions may be raised in this Court (Sec. 18, Presidential Decree No. 946, Law Reorganizing the CAR).

This is an agrarian case. Marcelo Masangkay was a tenant on the coconut land of the petitioners with an area of 51 hectares located in Barrio Hulo, Cawit, Boac, Marinduque. Because of his age, the petitioners ejected him in January, 1969. He had planted 1,200 coconut trees on the land. It was agreed that he was to be paid two pesos for every coconut tree planted by him. He was paid P150 a month as his share in the proceeds of the harvest.

The Court of Appeals in a decision dated November 21, 1979, as clarified in its resolution of January 9, 1980, ordered (1) his reinstatement or the payment of P2,400 as his compensation for the coconut trees, (2) payment to him of P1,800 a year from January, 1969 until reinstated or until the sum of P2,400 is paid to him, and (3) the payment of P600 as litigation expenses.

The petitioners appealed to this Court. They contend that the Appellate Court erred (1) in concluding that Masangkay was a tenant, (2) in awarding grossly excessive damages not supported by substantial evidence and (3) in the alternative, in not declaring that the tenancy was terminated due to Masangkay’ s abandonment and incapacity.

These contentions cannot be entertained because they assail the factual conclusions of the Appellate Court which are binding and conclusive on this Court. The Agrarian Court made the same findings. Only legal questions may be raised in this Court (Sec. 18, Presidential Decree No. 946, Law Reorganizing the CAR), The instant petition should not have been given due course.

However, Masangkay, who was 96 in 1980 (p. 59, Rollo), should not be reinstated.

WHEREFORE, we affirm the judgment of the Appellate Court ordering the petitioners to pay Masangkay P3,000 as the value of the coconut trees and litigation expenses, and P1,800 per annum from 1969 to the date the said sum of P3,000 is paid. Costs against the petitioners.

SO ORDERED.

Makasiar, Concepcion, Jr., Guerrero and Abad Santos, JJ., concur.

Escolin and Cuevas, JJ., took no part.

1. CONSTITUTIONAL LAW; POWER OF THE STATE TO TAX; EXERCISE THEREOF NECESSARY FOR THE PERFORMANCE OF ITS VITAL FUNCTIONS. — It is manifest that the field of state activity has assumed a much wider scope. Hence the need for more revenues. The power to tax, an inherent prerogative, has to be availed of to assure the performance of vital state functions. It is the source of the bulk of public funds. To paraphrase a recent decision, taxes being the lifeblood of the government, their prompt and certain availability is of the essence. (Cf. Vera v. Fernandez, L-31364, March 30, 1979, 89 SCRA 199)

2. ID., ID.; ID.; POWER TO TAX NOT WITHOUT RESTRICTIONS. — The power to tax, to borrow from Justice Malcolm, "is an attribute of sovereignty. It is the strongest of all the powers of government." (Sarasola v. Trinidad, 40 Phil. 252, 262 [1919]) It is, of course, to be admitted that for all its plenitude, the power to tax is not unconfined. There are restrictions. The Constitution sets forth such limits. .Adversely affecting as it does property rights, both the due process and equal protection clauses may properly be invoked, as petitioner does, to invalidate in appropriate cases a revenue measure. If it were otherwise, there would be truth to the 1803 dictum of Chief Justice Marshall that "the power to tax involves the power to destroy." (McCulloch v. Maryland, 4 Wheaton 316)

3. ID.; ID.; SECTION 1 BATAS PAMBANSA BLG. 135; NOT A TRANSGRESSION OF THE DUE PROCESS IN THE ABSENCE OF A SHOWING OF ARBITRARINESS. — Petitioner alleges arbitrariness. A mere allegation does not suffice. There must be a factual foundation of such unconstitutional taint. Considering that petitioner would condemn the provision as void on its face, he has not made out a case. This is merely to adhere to the authoritative doctrine that where the due process and equal protection clauses are invoked, considering that they are not fixed rules but rather broad standards, there is a need for proof of such persuasive character as would lead to such a conclusion. Absent such a showing, the presumption of validity must prevail.

4. ID.; ID.; ID.; INEQUALITY RESULTING FROM THE CLASSIFICATION MADE, NOT A TRANSGRESSION OF THE EQUAL PROTECTION CLAUSE AND THE RULE ON UNIFORMITY. — Classification, if rational in character, is allowable. In a leading case, Lutz v. Araneta, 98 Phil. 143 (1955), the Court went so far as to hold "at any rate, it is inherent in the power to tax that a state be free to select the subject of taxation, and it has been repeatedly held that ‘inequalities which result from a singling out of one particular class for taxation, or exemption infringe no constitutional limitation.’" Petitioner likewise invoked the kindred concept of uniformity. According to the Constitution: "The rule of taxation shall be uniform and equitable." (Art. VIII, Sec. 17, par. 1) This requirement is met according to Justice Laurel in Philippine Trust Company v: Yatco, 69 Phil. 420 (1940) when the tax "operates with the same force and effect in every place where the subject may be found. The rule of uniformity does not call for perfect uniformity or perfect equality, because this is hardly attainable."cralaw virtua1aw library

5. ID.; ID., ID., AMPLE JUSTIFICATION EXISTS FOR THE ADOPTION OF THE GROSS SYSTEM OF INCOME TAXATION TO COMPENSATION INCOME. — In the case of the gross income taxation embodied in Batas Pambansa Blg. 135, the discernible basis of classification is the susceptibility of the income to the application of generalized rules removing all deductible items for all taxpayers within the class and fixing a set of reduced tax rates to be applied to all of them. Taxpayers who are recipients of compensation income are set apart as a class. As there is practically no overhead expense, these taxpayers are not entitled to make deductions for income tax purposes because they are in the same situation more or less. On the other hand, in the case of professionals in the practice of their calling and businessmen, there is no uniformity in the costs or expenses necessary to produce their income. It would not be just then to disregard the disparities by giving all of them zero deduction and indiscriminately impose on all alike the same tax rates on the basis of gross income. There is ample justification for the Batasang Pambansa to adopt the gross system of income taxation to compensation income, while continuing the system of net income taxation as regards professional and business income.

The success of the challenge posed in this suit for declaratory relief or prohibition proceeding 1 on the validity of Section 1 of Batas Pambansa Blg. 135 depends upon a showing of its constitutional infirmity. The assailed provision further amends Section 21 of the National Internal Revenue Code of 1977, which provides for rates of tax on citizens or residents on (a) taxable compensation income, (b) taxable net income, (c) royalties, prizes, and other winnings, (d) interest from bank deposits and yield or any other monetary benefit from deposit substitutes and from trust fund and similar arrangements, (e) dividends and share of individual partner in the net profits of taxable partnership, (f) adjusted gross income. 2 Petitioner 3 as taxpayer alleges that by virtue thereof, "he would be unduly discriminated against by the imposition of higher rates of tax upon his income arising from the exercise of his profession vis-a-vis those which are imposed upon fixed income or salaried individual taxpayers." 4 He characterizes the above section as arbitrary amounting to class legislation, oppressive and capricious in character. 5 For petitioner, therefore, there is a transgression of both the equal protection and due process clauses 6 of the Constitution as well as of the rule requiring uniformity in taxation. 7

The Court, in a resolution of January 26, 1982, required respondents to file an answer within 10 days from notice. Such an answer, after two extensions were granted the Office of the Solicitor General, was filed on May 28, 1982. 8 The facts as alleged were admitted but not the allegations which to their mind are "mere arguments, opinions or conclusions on the part of the petitioner, the truth [for them] being those stated [in their] Special and Affirmative Defenses." 9 The answer then affirmed: "Batas Pambansa Blg. 135 is a valid exercise of the State’s power to tax. The authorities and cases cited, while correctly quoted or paraphrased, do not support petitioner’s stand." 10 The prayer is for the dismissal of the petition for lack of merit.

This Court finds such a plea more than justified. The petition must be dismissed.

1. It is manifest that the field of state activity has assumed a much wider scope. The reason was so clearly set forth by retired Chief Justice Makalintal thus:jgc:chanrobles.com.ph

"The areas which used to be left to private enterprise and initiative and which the government was called upon to enter optionally, and only ‘because it was better equipped to administer for the public welfare than is any private individual or group of individuals,’ continue to lose their well-defined boundaries and to be absorbed within activities that the government must undertake in its sovereign capacity if it is to meet the increasing social challenges of the times. "11 Hence the need for more revenues. The power to tax, an inherent prerogative, has to be availed of to assure the performance of vital state functions. It is the source of the bulk of public funds. To paraphrase a recent decision, taxes being the lifeblood of the government, their prompt and certain availability is of the essence. 12

2. The power to tax moreover, to borrow from Justice Malcolm, "is an attribute of sovereignty. It is the strongest of all the powers of government." 13 It is, of course, to be admitted that for all its plenitude, the power to tax is not unconfined. There are restrictions. The Constitution sets forth such limits. Adversely affecting as it does property rights, both the due process and equal protection clauses may properly be invoked, as petitioner does, to invalidate in appropriate cases a revenue measure. If it were otherwise, there would be truth to the 1803 dictum of Chief Justice Marshall that "the power to tax involves the power to destroy." 14 In a separate opinion in Graves v. New York, 15 Justice Frankfurter, after referring to it as an "unfortunate remark," characterized it as "a flourish of rhetoric [attributable to] the intellectual fashion of the times [allowing] a free use of absolutes." 16 This is merely to emphasize that it is not and there cannot be such a constitutional mandate. Justice Frankfurter could rightfully conclude: "The web of unreality spun from Marshall’s famous dictum was brushed away by one stroke of Mr. Justice Holmes’s pen: ‘The power to tax is not the power to destroy while this Court sits.’" 17 So it is in the Philippines.

3. This Court then is left with no choice. The Constitution as the fundamental law overrides any legislative or executive act that runs counter to it. In any case therefore where it can be demonstrated that the challenged statutory provision — as petitioner here alleges — fails to abide by its command, then this Court must so declared and adjudge it null. The inquiry thus is centered on the question of whether the imposition of a higher tax rate on taxable net income derived from business or profession than on compensation is constitutionally infirm.

4. The difficulty confronting petitioner is thus apparent. He alleges arbitrariness. A mere allegation, as here, does not suffice. There must be a factual foundation of such unconstitutional taint. Considering that petitioner here would condemn such a provision as void on its face, he has not made out a case. This is merely to adhere to the authoritative doctrine that where the due process and equal protection clauses are invoked, considering that they are not fixed rules but rather broad standards, there is a need for proof of such persuasive character as would lead to such a conclusion. Absent such a showing, the presumption of validity must prevail. 18

5. It is undoubted that the due process clause may be invoked where a taxing statute is so arbitrary that it finds no support in the Constitution. An obvious example is where it can be shown to amount to the confiscation of property. That would be a clear abuse of power. It then becomes the duty of this Court to say that such an arbitrary act amounted to the exercise of an authority not conferred. That properly calls for the application of the Holmes dictum. It has also been held that where the assailed tax measure is beyond the jurisdiction of the state, or is not for a public purpose, or, in case of a retroactive statute is so harsh and unreasonable, it is subject to attack on due process grounds. 19

6. Now for equal protection. The applicable standard to avoid the charge that there is a denial of this constitutional mandate whether the assailed act is in the exercise of the police power or the power of eminent domain is to demonstrate "that the governmental act assailed, far from being inspired by the attainment of the common weal was prompted by the spirit of hostility, or at the very least, discrimination that finds to support in reason. It suffices then that the laws operate equally and uniformly on all persons under similar circumstances or that all persons must be treated in the same manner, the conditions not being different, both in the privileges conferred and the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not identical are analogous. If law be looks upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 20 That same formulation applies as well to taxation measures. The equal protection clause is, of course, inspired by the noble concept of approximating the ideal of the laws’s benefits being available to all and the affairs of men being governed by that serene and impartial uniformity, which is of the very essence of the idea of law. There is, however, wisdom, as well as realism, in these words of Justice Frankfurter: "The equality at which the ‘equal protection’ clause aims is not a disembodied equality. The Fourteenth Amendment enjoins ‘the equal protection of the laws,’ and laws are not abstract propositions. They do not relate to abstract units A, B and C, but are expressions of policy arising out of specific difficulties, addressed to the attainment of specific ends by the use of specific remedies. The Constitution does not require things which are different in fact or opinion to be treated in law as though they were the same." 21 Hence the constant reiteration of the view that classification if rational in character is allowable. As a matter of fact, in a leading case of Lutz V. Araneta, 22 this Court, through Justice J.B.L. Reyes, went so far as to hold "at any rate, it is inherent in the power to tax that a state be free to select the subjects of taxation, and it has been repeatedly held that ‘inequalities which result from a singling out of one particular class for taxation, or exemption infringe no constitutional limitation.’" 23

7. Petitioner likewise invoked the kindred concept of uniformity. According to the Constitution: "The rule of taxation shall be uniform and equitable." 24 This requirement is met according to Justice Laurel in Philippine Trust Company v. Yatco, 25 decided in 1940, when the tax "operates with the same force and effect in every place where the subject may be found." 26 He likewise added: "The rule of uniformity does not call for perfect uniformity or perfect equality, because this is hardly attainable." 27 The problem of classification did not present itself in that case. It did not arise until nine years later, when the Supreme Court held: "Equality and uniformity in taxation means that all taxable articles or kinds of property of the same class shall be taxed at the same rate. The taxing power has the authority to make reasonable and natural classifications for purposes of taxation, . . . 28 As clarified by Justice Tuason, where "the differentiation" complained of "conforms to the practical dictates of justice and equity" it "is not discriminatory within the meaning of this clause and is therefore uniform." 29 There is quite a similarity then to the standard of equal protection for all that is required is that the tax "applies equally to all persons, firms and corporations placed in similar situation." 30

8. Further on this point. Apparently, what misled petitioner is his failure to take into consideration the distinction between a tax rate and a tax base. There is no legal objection to a broader tax base or taxable income by eliminating all deductible items and at the same time reducing the applicable tax rate. Taxpayers may be classified into different categories. To repeat, it is enough that the classification must rest upon substantial distinctions that make real differences. In the case of the gross income taxation embodied in Batas Pambansa Blg. 135, the discernible basis of classification is the susceptibility of the income to the application of generalized rules removing all deductible items for all taxpayers within the class and fixing a set of reduced tax rates to be applied to all of them. Taxpayers who are recipients of compensation income are set apart as a class. As there is practically no overhead expense, these taxpayers are not entitled to make deductions for income tax purposes because they are in the same situation more or less. On the other hand, in the case of professionals in the practice of their calling and businessmen, there is no uniformity in the costs or expenses necessary to produce their income. It would not be just then to disregard the disparities by giving all of them zero deduction and indiscriminately impose on all alike the same tax rates on the basis of gross income. There is ample justification then for the Batasang Pambansa to adopt the gross system of income taxation to compensation income, while continuing the system of net income taxation as regards professional and business income.

9. Nothing can be clearer, therefore, than that the petition is without merit, considering the (1) lack of factual foundation to show the arbitrary character of the assailed provision; 31 (2) the force of controlling doctrines on due process, equal protection, and uniformity in taxation and (3) the reasonableness of the distinction between compensation and taxable net income of professionals and businessmen certainly not a suspect classification.

WHEREFORE, the petition is dismissed. Costs against petitioner.

Makasiar, Concepcion, Jr., Guerrero, Melencio-Herrera, Escolin, Relova, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.

Teehankee, J., concurs in the result.

Aquino, J., concurs in the result. The petitioner has no cause of action for prohibition.

Plana, J., took no part.

Abad Santos, J., This is a frivolous suit. While the tax rates for compensation income are lower than those for net income such circumstance does not necessarily result in lower tax payments for those receiving compensation income. In fact, the reverse will most likely be the case; those who file returns on the basis of net income will pay less taxes because they can claim all sorts of deductions justified or not. I vote for dismissal.

Endnotes:

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1. Petitioner must have realized that a suit for declaratory relief must be filed with Regional Trial Courts.

2. Batas Pambansa Blg. 135, Section 21 (1981).

3. The respondents are Ruben B. Ancheta, Acting Commissioner, Bureau of Internal Revenue; Romulo Villa, Deputy Commissioner, Bureau of Internal Revenue; Tomas Toledo, Deputy Commissioner, Bureau of Internal Revenue; Manuel Alba, Minister of Budget; Francisco Tantuico, Chairman, Commissioner on Audit; and Cesar E. A. Virata, Minister of Finance.

4. Petition, Parties, par. 1. The challenge is thus aimed at paragraphs (a) and (b) of Section 1 further Amending Section 21 of the National Internal Revenue Code of 1977. Par. (a) reads:" (a) On taxable compensation income. — A tax is hereby imposed upon the taxable compensation income as determined in Section 28 (a) received during each taxable year from all sources by every individual, whether a citizen of the Philippines, determined in accordance with the following schedule:chanrob1es virtual 1aw library

Not over P2,500 0%

Over P 2,500 but not over 5,000 1%

Over P 5,000 but not over 10,000 P 25 + 3% of excess over P 5,000

Over P 10,000 but not over 20,000 P 175 + 7% of excess over P 10,000

Over P 20,000 but not over 40,000 P 875 + 11% of excess over P 20,000

Over P 40,000 but not over 60,000 P 3,075 + 15% of excess over P 40,000

Over P 60,000 but not over 100,000 P 6,075 + 19% of excess over P 60,000

Over P 100,000 but not over 250,000 P 13,675 + 24% of excess over P100,000

Over P 250,000 but not over 500,000 P 49,675 + 29% of excess over P250,000

Over P 500,000 P122,175 + 35% of excess over P500,000

Par. (b) reads:" (b) On taxable net income. — A tax is hereby imposed upon the taxable net income as determined in Section 29 (a) received during each taxable year from all sources by every individual, whether a citizen of the Philippines, or an alien residing in the Philippines determined in accordance with the following schedule:chanrob1es virtual 1aw library

Not over P10,000 05%

Over P10,000 but not over P30,000 P 500 + 15% of excess over P 10,000

Over P30,000 but not over P150,000 P 3,500 + 30% of excess over P 30,000

Over P150,000 but not over P500,000 P39,500 + 45% of excess over P150,000

Over P500,000 P197,000 + 60% of excess over P500,000

5. Ibid, Statement, par. 4.

6. Article IV, Section 1 of the Constitution reads: "No person shall be deprived of life, liberty or property without due process of law, nor shall any person be denied the equal protection of the laws."cralaw virtua1aw library

7. Article VII, Section 7, par. (1) of the Constitution reads: "The rule of taxation shall be uniform and equitable. The Batasang Pambansa shall evolve a progressive system of taxation."cralaw virtua1aw library

8. It was filed by Solicitor General Estelito P. Mendoza. He was assisted by Assistant Solicitor General Eduardo D. Montenegro and Solicitor Erlinda B. Masakayan.

9. Answer, pars. 1-6.

10. Ibid, par. 6.

11. Agricultural Credit and Cooperative Financing Administration v. Confederation of Unions in Government Corporation and Offices, L-21484, November 29, 1969, 30 SCRA 649, 662.

12. Cf. Vera v. Fernandez, L-31364, March 30, 1979, 89 SCRA 199, per Castro, J.

13. Sarasola v. Trinidad, 40 Phil. 252, 262 (1919).

14. McCulloch v. Maryland, 4 Wheaton 316.

15. 306 US 466 (1938).

16. Ibid, 489.

17. Ibid, 490.

18. Cf. Ermita-Malate Hotel and Motel Operators Association v. Hon. City Mayor, 127 Phil. 306, 315 (1967); U.S. v. Salaveria, 39 Phil. 102, 111 (1918) and Eboña v. Daet, 85 Phil. 369 (1950). Likewise referred to is O’Gorman and Young v. Hartford Fire Insurance Co., 282 US 251, 328 (1931).

19. Cf. Manila Gas Co. v. Collector of Internal Revenue, 62 Phil. 895 (1936); Wells Fargo Bank and Union Trust Co. v. Collector, 70 Phil. 325 (1940); Republic v. Oasan Vda. de Fernandez, 99 Phil. 934 (1956).

20. The excerpt is from the opinion in J.M. Tuason and Co. v. The Land Tenure Administration, L-21064, February 18, 1970, 31 SCRA 413, 435 and reiterated in Bautista v. Juinio, G.R. No. 50908, January 31, 1984, 127 SCRA 329, 339. The former deals with an eminent domain proceeding and the latter with a suit contesting the validity of a police power measure.

21. Tigner v. Texas, 310 US 141,147 (1940).

22. 98 Phil. 148 (1955).

23. Ibid, 153.

24. Article VIII, Section 17, par. 1, first sentence of the Constitution.

25. 69 Phil. 420 (1940).

26. Ibid, 426.

27. Ibid, 424.

28. Eastern Theatrical Co. v. Alfonso, 83 Phil. 852, 862 (1949).

29. Manila Race Horse Trainers Asso. v. De la Fuente, 88 Phil. 60, 65 (1951).

30. Uy Matias v. City of Cebu, 93 Phil. 300 (1953).

31. While petitioner cited figures to sustain his assertion, public respondents refuted with other figures that argue against his submission. One reason for requiring declaratory relief proceedings to start in regional trial courts is precisely to enable petitioner to prove his allegation, absent an admission in the answer.

1. CIVIL LAW; LAND TITLES AND DEEDS; FRIAR LANDS ACT; FRIAR LANDS, PATRIMONIAL PROPERTY OF THE GOVERNMENT. — As specifically stated in the Preamble to the Friar Lands Act (Public Act 1120, April 26, 1904), friar lands are not public lands in the sense in which these words are used in the Public Land Act, numbered nine hundred and twenty six, and cannot be acquired or leased under the provisions thereof. These so-called friar lands to which the Government of the Philippines holds title, are not public lands but private or patrimonial property of the government (Jacinto v. Director of Lands [1926], 49 Phil. 853).

2. ID.; ID.; ID.; ID.; ONLY ACTUAL SETTLERS AND OCCUPANTS AT TIME OF GOVERNMENT ACQUISITION GIVEN PREFERENCE TO PURCHASE OR LEASE. — Prescinding from this ruling or doctrine in the Jacinto case, the Supreme Court in the case of Balicudiong v. Balicudiong, 39 SCRA 386, held that one who acquires land under the Friar Lands Act (Act 1120) as well as his successor-in-interest, may not claim successional rights to purchase by reason of occupation from time immemorial; that under the Friar Lands Act, only "actual settlers and occupants at the time said lands are acquired by the government" were given preference to lease, purchase, or acquire their holdings, in disregard of the settlement and occupation of persons before the government acquired the lands.

3. ID., ID.; ID.; ID.; ID.; ACTUAL SETTLER OR OCCUPANT SHOULD ACQUIRE LAND BY PURCHASE/LEASE FROM GOVERNMENT IN ORDER TO TRANSMIT RIGHTS TO HEIRS. — The ruling of the appellate court that definitely there was no co-ownership of Lot 671 among the heirs (or descendants) of Policarpio de la Cruz because it was impossible, factually and legally, for Policarpio to be the owner, for the entire Piedad Estate (of which Lot No. 671 was then a part) had been since March 12, 1912, registered in the name of the Philippine Government is correct. And there being no evidence as to how Policarpio acquired ownership over the land, no document of any kind presented, and no testimony or proof whatsoever that Policarpio had ever purchased or applied with the government for the purchase of Lot No. 671, We reject petitioners’ repeated pretensions that Policarpio de la Cruz was the owner of Lot 671. He may have been an actual settler or occupant in the land at the time said lands were acquired by the government and was given the preference to lease, purchase or acquire his holding, which preference, however, is in disregard of the settlement and occupation of persons before the government acquired the land but absent any showing, proof or evidence that he applied to purchase or acquire the holding, Policarpio de la Cruz acquired no title, right or interest whatsoever which he could have transmitted by succession to his children and heirs.

4. ID.; ID.; ID.; ID.; ID.; FAILURE OF ACTUAL OCCUPANT TO EXERCISE PREFERENTIAL RIGHT; EFFECT IN CASE AT BAR. — We have affirmed the appellate court’s ruling that Policarpio had no title to the land, and the legal consequences thereof is that no trust relationship existed over the land in favor of petitioners as beneficiaries and the respondent Lucia de la Cruz as the supposed trustee. This is so because in the first place, the land is the private and patrimonial property of the government and in the second place, it has not been shown or established that the land had been sold by the government to Policarpio de la Cruz. If he had the preference to purchase the land but he failed to exercise said preference or avail of the benefits thereof, the same must have been abandoned or had lapsed through inaction, neglect or omission up to the time of his death in 1920.

5. REMEDIAL LAW; EVIDENCE; PRESUMPTION OF REGULARITY IN PERFORMANCE OF OFFICIAL DUTY; GRANT OF PETITION FOR RECONSTITUTION AFTER DUE NOTICE AND HEARING. — The petition for reconstitution was duly published and proper notices posted in accordance with law, and after due heating, was granted by the court in the exercise of its authority and jurisdiction. It must be assumed that official duty was likewise duly and properly exercised in the premises. Hence, We reject petitioners’ assignment of error that the Court of Appeals erred in not declaring that the reconstituted title of Lucia de la Cruz is absolutely null and void.

6. CIVIL LAW; LACHES; FAILURE TO ASSERT CLAIM FOR 32 YEARS. — There is justification in the appellate court’s observation that petitioners moved no finger when Lucia disposed smaller portions of the lot to Juana de los Reyes, Basilisa T. Ramos and Maximo A. Argana and "their eyes opened wide only when they heard of the negotiations leading to and the eventual sale of the lot by Lucia to her co-appellant, the Iglesia ni Kristo, the transaction involving as it did millions of pesos." It took them 32 years to assert their claim to Lot 671 when they filed the case for reconveyance on August 14, 1975, which is a clear case of inaction and neglect, thereby converting whatever interest petitioners had into a stale demand. Mejia v. Gamponia, 100 Phil. 277; Miguel v. Catalino, L-23072, 26 SCRA 234). Otherwise, there is no meaning to the maxim Vigilantibus et non dormeintibus jura subveniunt. (The laws serve the vigilant, not those who sleep.)

7. ID.; LAND TITLES AND DEEDS; LAND REGISTRATION; TORRENS SYSTEM; INDEFEASIBILITY OF TITLE. — The registered title of Lucia de la Cruz reconstituted as TCT No. RT-58 became indefeasible and incontrovertible one year from its issuance (Section 38 of the Land Registration Act). As registered owner, Lucia de la Cruz had the perfect and legal right to sell, assign, and convey the property to respondent Iglesia ni Kristo who as purchaser for value in good faith holds the same tree from all incumbrances except those noted in said certificate of title (Section 39, Land Registration Act). The Iglesia may then safely rely on the correctness of the certificate of title issued therefor and the law will in no way oblige him to go behind the certificate to determine the condition of the property (Director of Lands v. Abache, Et Al., 73 Phil. 606). Where there was nothing in the certificate of title to indicate any cloud or vice in the ownership of the property, or any encumbrance thereon, the purchaser is not required to explore farther than what the Torrens title upon its face indicates in quest for any hidden defect or inchoate right that may subsequently defeat his right thereto. If the rule were otherwise, the efficacy and conclusiveness of the certificate of title which the Torrens system seeks to insure would entirely be futile and nugatory (Reynes v. Barrera, 68 Phil. 656; De Lara and De Guzman v. Ayroso, 50 O.G. No. 10, 4838; cited in Fule v. De Lagare, 7 SCRA 351).

8. ID.; ID.; ID.; ID.; PURPOSE OF THE SYSTEM OF REGISTRATION. — The indefeasibility and imprescriptibility of a Torrens title is preserved and maintained and the purposes of the Torrens System of land registration achieved which is to insure stability by quieting titled lands and put to a stop forever any question of the legality of the registration, in the certificate, or which may arise subsequent thereto. And once the title was registered, the owner might rest secure, without the necessity of waiting in the portals of the court, or sitting in the "mirador de su casa" to avoid the possibility of losing his land in the classic pronouncement of this Court in Legarda v. Saleeby, 31 Phil. 590, reiterated in Salao v. Salao, 70 SCRA 65, and Director of Lands v. Court of Appeals, 102 SCRA 370, 451.

The land subject of the instant petition for review on certiorari is known as Lot 671 of the Piedad Estate, GLRO Record No. 5975 with an area of 184,268 square meters more or less, situated in Barrio Culiat, Quezon City, adjacent to the main church of respondent Iglesia Ni Kristo. The Piedad Estate consists of a vast tract of land originally registered on March 12, 1912 under Original Certificate of Title No. 614 of the Register of Deeds of the Province of Rizal in the name of the Philippine Government.

The Piedad Estate was one of the so-called friar lands which were purchased by the government of the Philippines pursuant to the provisions of the Friar Lands Act, Public Act No. 1120 which was enacted on April 26, 1904. By way of historical background of the property in litigation, We quote hereunder the Preamble to the Act as follows:jgc:chanrobles.com.ph

"Whereas, pursuant to the provisions of sections sixty-three, sixty-four, and sixty-five of an Act of the Congress of the United States, entitled `An Act temporarily to provide for the administration of the affairs of civil government in the Philippine Islands, and for other purposes,’ approved July first, nineteen hundred and two, the Government of the Philippine Islands, on the twenty-second day of December, nineteen hundred and three, entered into contracts with the Philippine Sugar Estates Development Company, Limited, La Sociedad Agricola de Ultramar, the British-Manila Estate Company, Limited, and the Recoleto Order of the Philippine Islands, for the purchase of about one hundred and sixty-four thousand one hundred and twenty-seven hectares of land, situated in the Provinces of Laguna, Bulacan, Cavite, Bataan, Cebu, Rizal, Isabela, and Mindoro, for the aggregate sum of seven million two hundred and thirty-nine thousand seven hundred and eighty-four dollars and sixty-six cents, money of the United States; and.

Whereas in said contracts of purchase it was provided, among other things, that the Government of the Philippine Islands should have a period of six months from the date of said contracts within which to examine the titles to said lands and also within which to survey the same in order to ascertain whether there is the quantity of land specified in said contracts, and in the event there is not, that a proportionate reduction shall be made in the amounts agreed to be paid therefor; and it was further provided in said contracts that the said parties, so agreeing to sell, obligated themselves to convey good and indefeasible titles to said lands by proper conveyances; and.

Whereas by said section sixty-five of said Act of Congress the Government of the Philippine Islands is empowered to lease the said lands after their acquisition for a period not exceeding three years, and to sell the same on such terms and conditions as it may prescribe, subject to the limitations and conditions contained in said Act of Congress: Provided, That all deferred payments and the interest thereon shall be payable in the money prescribed for the payment of principal and interest of the bonds authorized to be issued and sold for the purpose of realizing the money necessary to pay for said lands by section sixty-four of said Act of Congress, and that said deferred payments shall bear interest at the rate borne by said bonds: And provided further, That all moneys realized or received from the sales or other disposition of said lands, or by reason thereof, shall constitute a trust fund for the payment of principal and interest of said bonds, and also constitute a sinking fund for the payment of said bonds at their maturity; And provided further, That actual settlers and occupants at the time said lands are acquired by the Government shall have the preference over all others to lease, purchase, or acquire their holdings within such reasonable time as may be determined by said Government; and.

Whereas the said lands are not `public lands’ in the sense in which those words are used in the Public Land Act, Numbered Nine hundred and twenty-six, and cannot be acquired or leased under the provisions thereof, and it is necessary to provide proper agencies for carrying out the terms of said contracts of purchase and the requirements of said Act of Congress with reference to the leasing and selling of said lands and the creation of a sinking fund to secure the payment of the bonds so issued."cralaw virtua1aw library

As specifically stated above, the said lands are not "public lands" in the sense in which those words are used in the Public Land Act Numbered Nine hundred and twenty-six and cannot be acquired or leased under the provisions thereof. In the case of Jacinto v. Director of Lands (1926) 49 Phil. 853, the Supreme Court held that the so-called friar lands, to which the government of the Philippines holds title, are not public lands but private or patrimonial property of the government.

Under Section 7 of PA 1120, upon the vesting of the titles to said lands in the government of the Philippine Islands by properties of conveyance, the Chief of the Bureau of Public Lands was directed to ascertain the names and residences of the actual, bona fide settlers and occupants then in possession of said lands or of any portion of them, together with the extent of their several holdings and the character and value thereof. He was also directed to ascertain from said occupants whether they desire to purchase their holdings upon the terms prescribed in the succeeding Section: Provided, That the failure on the part of the occupants to state their desire to lease or purchase said lands shall not be understood to mean that they do not desire to acquire them. In case of such failure it shall be the duty of the Director of Lands, or his agents, to enjoin such occupants to state their desire in writing within the period of eight days from the date of such injunction, and their failure to do so shall be understood to mean that such occupants do not desire either to lease or to purchase said lands. The Director of Lands shall neither lease nor sell the said lands to any other person until the foregoing requirements shall have been complied with, and any contracts of lease or of sale hereafter executed without them shall be null and void.

In case any occupant in possession does not desire to purchase his holding, but does desire to lease the same, then it shall be the duty of the Chief of the Bureau of Public Lands, after vesting of title, to see that such occupant attorns in due form to the Government and enters into a lease with the usual covenants and agrees to pay a reasonable rental for the use and occupation of his holding. Such rental shall be fixed by the Chief of the Bureau of Public Lands, but in no instance shall any lease be made for a longer term than three years. (Sec. 8, PA 1120). In Zarraga v. Sleeper, (1913), 25 Phil. 650, the Supreme Court held that although occupants and lessees of portions of friar lands were authorized to continue in possession for a reasonable time and then to lease or purchase the property occupied, they were given no right, by this Act, to continue leasing the land after expiration of such time and of existing leases.

It is pertinent and material in the resolution of the case at bar to state that under Sec. 11 of PA 1120, should any person who is the actual and bona fide settler upon an occupant of any portion of said lands at the time the same is conveyed to the government of the Philippines desire to purchase the land so occupied by him, he shall be entitled to do so at the actual cost thereof to the government, and shall be granted 15 years from the date of the purchase in which to pay for the same in equal annual installments, should he so desire, paying interest at the rate of 4% per annum on all deferred payments. The actual value of the parcel of land held by each settler and occupant is ascertained by the Chief of the Bureau of Public Lands, taking into consideration the location and quality of each holding of land, and any other circumstance giving it value. The basis of valuation is such that the aggregate of the values of all the holdings included in each particular tract shall be equal to the cost to the government of the entire tract, including the cost of surveys, administration, and interest upon the purchase money to the time of sale. When the cost thereof shall have been thus ascertained, the Chief of the Bureau of Public Lands shall give the said settler and occupant a certificate which shall set forth in detail that the government has agreed to sell to such settler and occupant the amount of land so held by him, at the price so fixed, and that upon the payment of the final installment together with all accrued interest the Government will convey to such settler and occupant the land so held by him by proper instrument of conveyance, which shall be issued and become effective in the manner provided in Sec. 122 of the Land Registration Act.

Under Sec. 15 of PA 1120, the government reserves the title to each and every parcel of land sold under the provisions of the Act until the full payment of all installments of purchase money and interest by the purchaser has been made, and any sale or encumbrance made by him shall be invalid as against the government of the Philippine Islands and shall be in all respects subordinate to its prior claim. The rights of possession and purchase acquired by certificates of sale signed by purchasers of friar lands, pending final payment and the issuance of title shall be considered as personal property for the purposes of serving as security for mortgages, and shall be considered as such in judicial proceedings relative to such security.

In the event of death of a holder of a certificate prior to the execution of a deed by the government to any purchaser, the interest of the holder of the certificate shall descend and deed shall issue to the persons who under the laws of the Philippine Islands would have taken had the title been perfected before the death of the holder of the certificate, upon proof of compliance with all the requirements of the certificate. In case the holder of the certificate shall have sold his interest in the land before having complied with all the conditions thereof, the purchaser shall have all the rights of the holder of the certificate. (Sec. 16, PA 1120).

As held in Lorenzo v. Nicolas, No. L-4085, 30 July 1952, 91 Phil. 686, "from the provisions of sections 11, 12 and 16 of Act No. 1120, it is apparent that the pervading legislative intent is to sell the friar lands acquired by the Government to actual settlers and occupants of the same. In case of death of a holder of a certificate, which is only an agreement to sell, it is not the heirs but the widow who succeeds in the parcels of land to be sold by the Government. Only do the heirs succeed in the rights of the deceased holder of a certificate if no widow survives him." The widow of a purchaser of Friar Estates land is entitled to have patent issued to her for the lands purchased upon proper showing she has completed payment of the purchase price, the right to complete such a purchase being analogous to the homestead laws. The widow’s rights are governed by the law in force at time of her husband’s death, and are not affected by her remarriage (Jocson v. Soriano (1923), 45 Phil. 375). Attempted legacies in violation of this section, which grants the widow of the purchaser the ownership of lands purchased and not transferred during the purchaser’s lifetime, were void. (Arayata v. Joya (1928), 51 Phil. 654).

Later decisions of the Court have settled controversies involving the friar lands from which We can resolve the conflicting rights and interests of the parties in the present litigation, thus —

"One who acquires land under the Friar Lands Act (Act 1120), as well as his successors in interest, may not claim successional rights to purchase by reason of occupation from time immemorial, as this contravenes the historical fact that friar lands were bought by the Government of the Philippine Islands, pursuant to an Act of Congress of the United States, approved on 1 July 1902, not from individual persons but from certain companies, a society and a religious order (12 PAL, 153-155).

"Under the Friar Lands Act, only `actual settlers and occupants at the time said lands are acquired by the Government’ were given preference to lease, purchase, or acquire their holdings, in disregard of the settlement and occupation of persons before the government acquired the lands.

"Where MB bought on installment a tract of Friar land on 1 July 1920, while his wife AA was still living, to which a Sales Certificate stating the sale is effective 1 July 1920, the date it was issued; and after AA died on 23 September 1923, MB continued paying for the lot on installments until payment was completed 1 June 1931: it was held that MB acquired the beneficial and equitable title to the land on 1 July 1920, before completion of payment for the purchase price, the bare and naked title remaining in the Government, the reservation of title in the Government, pursuant to Section 15 of the Friar Lands Act (Act 1120), being merely for its protection.

"Comparing the first part of the original Section 16 (of the Friar Lands Act) and its amendment, it is seen that while under the original provision the interest of a deceased certificate holder passed to his widow (or widower), it is not so under the amendment which provides that his interest shall descend ‘to the persons who under the laws of the Philippine Islands would have taken had the title been perfected before the death of the holder of the certificate, . . . and these persons are no other than his or her heirs under the Civil Code of 1889.

"Where MB executed 4 June 1931 a duly notarized deed of assignment of a parcel of Friar land for P300.00 in favor of his son, A.B., and the deed of conveyance by the Director of Lands was registered 28 September 1931 with the Cavite Register of Deeds, on which same date a Certificate of Title was issued in the name of AB, who has been in possession of the lot since 1927 or 1928; whereas the action to set the assignment aside was filed only in 1952, such action is barred by prescription, since the ten-year period within which to have filed the same started to run from the date of the issuance (on 28 September 1931) of the certificate of title." (Balicudiong v. Balicudiong, L-29603, June 7, 1971, 39 SCRA 386 per Reyes, J.B.L., J.).

"Under section 15 of Act 1120, otherwise known as the Friar Lands Act, title to the land sold is reserved to the Government until the purchaser makes full payment of all the required installments and the interests thereon. This legal reservation refers ‘to the bare, naked title.’ The equitable and beneficial title really went to the purchaser the moment he paid the first installment and was given a certificate of sale. The reservation of the title in favor of the Government is made merely to protect the interest of the Government so as to preclude or prevent the purchaser from encumbering or disposing of the lot purchased before the payment in full of the purchase price. Outside of this protection the Government retains no right as owner." (Fabian v. Fabian, L-20449, Jan. 29, 1968, 22 SCRA 231, Castro, J.)

Now to the antecedent facts.

On August 14, 1975, petitioners filed Civil Case No. 20942, Court of First Instance of Rizal, Quezon City Branch V, against respondents Lucia de la Cruz and Iglesia Ni Kristo for recovery of ownership and possession of land described in the complaint and praying for judgment in their favor as plaintiffs below and against the defendants (respondents herein) "A. Declaring the plaintiffs the legitimate owners pro indiviso of 122,845.32 square meters of land, part of Lot No. 671 of the Piedad Estate, Quezon City, previously covered by TCT No. 168322 of the Registry of Deeds of Quezon City; B. Ordering the defendant Lucia de la Cruz to convey to the plaintiffs in the proportion fixed by the law of succession, 46,892 square meters of land, a portion of the land covered by TCT No. 168322, still remaining under her ownership; C. Ordering the defendant Iglesia ni Cristo to convey to the plaintiffs in the same proportion a pro indiviso area of 75,953.32 square meters of land, now covered by TCT No. 209554 of the Registry of Deeds of Quezon City; and further, damages in the amount of P1,858,850.00, attorney’s fees of P200,000.00 and pay moral, nominal and exemplary damages in such sums as may be determined by the Honorable Court."cralaw virtua1aw library

The decision of the trial court clearly and succinctly summarizes the complaint of petitioners as follows:jgc:chanrobles.com.ph

". . . that plaintiffs and defendants are the compulsory heirs of Policarpio de la Cruz who left as his property a parcel of land situated in Quezon City, known as Lot 671 of the Piedad Estate, L.R.C. Record No. 5975 and with an area of 184,268 square meters, more or less; that plaintiffs, as grandchildren and great grandchildren of Policarpio de la Cruz, own pro indiviso two-thirds (2/3) of said property or, more specifically, 122,845.32 square meters thereof, one-third (1/3) going to the 10 children of Maximo de la Cruz, share and share alike and one-third (1/3) going to the surviving children and grandchildren of Filomeno de la Cruz, the children participating per capita and the grandchildren participating per stirpes; that only the remaining one-third (1/3) of the property belongs to defendant Lucia de la Cruz; that plaintiffs knew that their fathers had left certain lands in co-ownership with their aunt who was administering the same; that when their fathers died, plaintiffs similarly entrusted the care of the properties due them to Lucia de la Cruz; that Lucia de la Cruz had been giving plaintiffs every now and then their shares of the produce and, from the quantity thereof, they thought all along that the landholdings left by their fathers did not amount to much; that upon information of someone close to defendant Lucia dela Cruz, plaintiff was recently led to investigate their inheritance from their fathers and they discovered that the property subject of the complaint was registered in the name of defendant Lucia de la Cruz in 1943 to the prejudice of their fathers; that in 1971, a reconstituted title, TCT No. RT-38 of the Registry of Deeds of Quezon City, was issued over the property in the name of Lucia de la Cruz alone upon her instance; that upon discovery in December 1974, plaintiffs immediately demanded from defendant Lucia de la Cruz their share but the latter glibly talked them into waiting on the pretext that she would do so later on; . . . that plaintiffs also came to learn that the ownership of the property was the subject of a controversy in Civil Case No. Q-16125, Court of First Instance of Rizal, Quezon City Branch XXXI, against the defendant Lucia de la Cruz, Juana de los Reyes, Basilisa T. Ramos and Maximino Argana, upon a complaint filed by Nieva Paz Eraña, Et Al., who held a title over 103,108 square meters of said land traceable to an invalidly reconstituted title in the names of Dorotea and Eugenia de la Paz in whose names the original certificate of title was issued in trust for Policarpio de la Cruz and who already transferred the property to Lucia de la Cruz prior to the reconstitution; that on March 21, 1975, plaintiffs, through their present counsel, appeared in a hearing of that case and manifested their intention to intervene; that before plaintiffs could intervene in Civil Case No. Q-16125, the parties in said case presented a compromise agreement dated July 17, 1975, whereby the parties admitted that the original owner of Lot No. 671, Piedad Estate, was Policarpio de la Cruz; that accordingly judgment was rendered approving the compromise agreement; that on July 17, 1975, plaintiffs in Civil Case No. Q-16125 executed a deed of assignment of rights over Lot 671-B with an area of 103,108 square meters for P250,000.00 in favor of defendant Lucia de la Cruz and the defendant Iglesia ni Kristo; that also on July 17, 1975, defendant Lucia de la Cruz executed a Deed of Absolute Sale of Segregated Portion of Registered Land, referring to Lot No. 671-B, with an area of 103,108 square meters, in favor of defendant Iglesia ni Kristo, for the total sum of P2,108,850.00; that the only remaining area not disposed of by Lucia de la Cruz and still in her name is a portion of her TCT No. 168322 with an area of 46,892 square meters; that both documents have already been registered with the Register of Deeds of Quezon City and, consequently, TCT No. 209554 dated July 19, 1975, had been issued in the name of defendant Iglesia ni Kristo; that the sale to Iglesia ni Kristo had been attended with fraud, bad faith and deceit because Lucia de la Cruz well knew that she did not own the entire property; that the two defendants connived with each other to deprive plaintiffs of their just shares because the stated purchase price of the sale is far below the current and fair market value of the property and more so because Iglesia ni Kristo well knew of the pending Civil Case No. Q-16125 because of the lis pendens annotated in the corresponding title and that on February 17, 1975, counsel for plaintiffs, then intended intervenors in that case, had written the Branch Clerk of Court of Branch XXXI of this Court wherein the case was pending inquiring about the status thereof; that defendant Iglesia Ni Kristo should at the very least be charged with constructive, if not actual, knowledge of the proceedings in Civil Case No. Q-16125 and consequently, of the claim of the plaintiffs; that the attendant haste in the purchase and sale immediately after the submission of the compromise agreement and in the registration of the sale shows the great desire of the defendants to jump the gun on the intended intervention of the plaintiffs; that neither Maximo de la Cruz nor Filomeno de la Cruz nor their children have inherited any piece of property from Policarpio de la Cruz except the property in question; that 75,953.32 square meters should be reconveyed by defendant Iglesia ni Kristo to plaintiffs; that plaintiffs engaged the services of their counsel for a fee of P200,000.00; that plaintiffs suffered mental anguish, serious anxiety, wounded feelings, moral shock and similar injury, entitling them to moral damages; that because the rights of the plaintiffs had been invaded by defendants, the former are entitled to nominal damages; and, that by way of example or correction for the public good and to serve as a deterrent, plaintiffs should also be awarded exemplary damages." (R.A., pp. 246-251; Brief for Petitioners, pp. 6-9).

Respondent Lucia de la Cruz answered the complaint and quoting the decision of the trial court again, her answer is synthesized as follows:jgc:chanrobles.com.ph

"In her answer filed on April 13, 1976, defendant Lucia de la Cruz denied the material allegations of the complaint and alleged, by way of affirmative defenses, that the property in question was derived by Dorotea de la Cruz from the Government (of the Philippine Islands) whose title thereto is Original Certificate of Title No. 614 and, in turn, she acquired it from Dorotea de la Cruz and later from Nieva Paz Eraña, Et Al., and that it is not part of the estate of Policarpio de la Cruz; that plaintiffs’ claim does not appear in the title; that the title to the property (OCT 614) was first issued in 1912 and it had become indefeasible after a year from issuance; that plaintiffs’ claim is already barred by laches and the statute of limitations because since 1941 she had been asserting ownership over the land to the exclusion of all others, including the plaintiffs. Claiming that plaintiffs’ action is malicious and frivolous, she set up a counterclaim for actual and moral damages in an amount to be established and attorney’s fees in the amount of P50,000.00." (R.A., p. 251; Brief for Petitioners, pp. 9-10).

For respondent Iglesia ni Kristo, the trial court likewise condensed its answer in the following wise and manner:jgc:chanrobles.com.ph

"Defendant Iglesia ni Kristo in its answer filed on March 26, 1976 likewise denied the material allegations of the complaint except the fact of rendition of judgment on compromise agreement in Civil Case No. Q-16125, the execution of plaintiffs therein of a deed of assignment of rights over Lot 671-B with an area of 103,108 sq. m. in favor of Lucia de la Cruz and Iglesia ni Kristo, and the execution of a Deed of Absolute Sale of Segregated Portion of Registered Land (Lot 671-B) by Lucia de la Cruz in favor of Iglesia ni Kristo for the total sum of P2,108,850.00. By way of affirmative defenses, it alleges that it examined TCT No. 168322 in the name of Lucia de la Cruz and, after satisfying itself that it was free from any lien or incumbrances or claims of other persons, bought the land covered thereby; that the price thereof was the result of an honest-to-goodness negotiation, freely arrived at by the parties; that plaintiffs’ claim is barred by res judicata, laches or prescription and, that plaintiffs have no legal capacity to sue the defendant corporation sole because there is no privity of contract between them. Alleging that plaintiffs’ allegation of fraud and deceit and imputation of bad faith and connivance had exposed the defendant corporation sole to public ridicule and contempt, it set up a counterclaim of P1,000,000.00 representing damages to its good name and reputation and P250,000.00 for attorney’s fees. In support of its cross-claim against defendant Lucia de la Cruz, the defendant Iglesia ni Kristo further alleged that it paid Lucia de la Cruz the amount of P2,108,850.00 and incurred expenses for the registration of the deed of sale; that Lucia de la Cruz agreed to answer for the eviction of defendant corporation sole from the land bought by it; and, that Lucia de la Cruz had also already executed a deed of sale of the remaining area covered by TCT 168322 in compliance with an agreement that all the land covered thereby be sold to it but the remaining portion would first be rid of squatters and occupants before payment. It prays that cross-defendant Lucia de la Cruz be ordered to pay whatever it may be ordered to pay plaintiffs in this case, and in the event the sale is declared invalid, to reimburse it of all the expenses it incurred by reason thereof" (R.A., pp. 252-253; Brief for Petitioners, pp. 10-11).

After trial, the defunct Court of First Instance, now Regional Trial Court, rendered judgment on October 24, 1977 in favor of the petitioners, annulling the title of the Iglesia ni Kristo which was found to be a purchaser in bad faith and awarding to the petitioners their aliquot inheritance shares in the estate of Policarpio de la Cruz equivalent to about 12 hectares of land. (R.A., pp. 244-302). The findings of fact made by the trial court state:jgc:chanrobles.com.ph

"From the evidence, testimonial and documentary, the following facts appear indubitably established:chanrob1es virtual 1aw library

The land in question is known as Lot No. 671 of the Piedad Estate, L.R.C. Record No. 5975 and contains an area of 184,268 square meters, more or less. Although the entire Piedad Estate which covered a wide tract of land in Quezon City was titled in the name of the Government of the Philippines for as early as before 1920 under Original Certificate of Title No. 614, portions thereof were actually under claim of ownership by various persons who were in possession thereof Lot 671 was owned and possessed by the late Policarpio de la Cruz. Upon his death in 1920, the property passed to his three children — Maximo and Filomeno, the fathers or grandfathers of the plaintiffs, and Lucia, one of the defendants. Plaintiffs Agustina de la Cruz and Cesaria de la Cruz, as do many of the plaintiffs, were born in the land in question. Defendant Lucia de la Cruz was widowed early and the brothers Maximo and Filomeno, feeling compassion for their only sister, left the administration and management of the only property left them by their father to her. Lucia gave to her brothers during their lifetime parts of the produce of the land consisting of rice and money forming part of the proceeds of other crops raised therefrom. Upon the return of the American armed forces during the war of liberation, the land in question was used as a depot by them and the De la Cruzes, Maximo, Filomeno and Lucia including their children were asked to vacate the area. Most of them transferred their small houses to the property of the Kalaws. Maximo died on January 15, 1968 and Filomeno died on March 14, 1971. Before their death, they called their respective children together and informed them that they (the children) will inherit a piece of land in Barrio Culiat, Quezon City. Both told their children that they inherited the property from their father Policarpio but that the same was being administered and managed by their (the children’s) aunt Lucia, the defendant herein. Lucia continued to give the plaintiffs rice and money as their share. However, due to the meagerness of the quantity of rice which was a ganta or two and the amount of money which was only P10.00 given them now and then by their aunt Lucia, plaintiffs never realized the extent and value of the property left them as inheritance.

Practically all the plaintiffs were and still are wallowing in the quagmire of poverty. Never having gone beyond the first or second grade, they are almost illiterate and belong to the laboring class. Eleuterio de la Cruz, a son of the late Filomeno de la Cruz, and a mere employee still resides in Barrio Culiat of Quezon City. Now and then, he visits their aunt to ask almost in a begging manner for a share in the fruits of the land left by the father which come in trickles of a ganta or two of rice or a sum of P10.00. During one of these visits, Eleuterio asked Lucia as to when they will partition the land left by their father and Lucia answered ‘after a month’s time.’ He once asked their aunt about the area of the land they are going to partition and she answered ‘18 hectares’.

Cesaria de la Cruz who is now married to Marcelo Baluyot resides in Abucay, Bataan where she works as a fish vendor. Just like her brothers and sisters, she too was informed by their late father Filomeno that they will inherit a piece of land which came from their grandfather Policarpio de la Cruz. Their father also told her that the land was being administered by their aunt Lucia and that the same should be left with her for administration for the meantime as she (Lucia) was already a widow and had many children. On the first anniversary of their father’s death, her brothers and sisters gathered at the house of their brother Eleuterio in Barrio Culiat, Quezon City, for prayers and a little ‘salo-salo’. Their aunt Lucia was also there. While in the kitchen cooking, her aunt Lucia went near her. She then asked her aunt for the partition of the land left them by their father. At this, her aunt Lucia got mad, and thrusting into her hand a fifty-peso bill, said: ‘There is your share. You have no more share in the land. I will just feed your share to the dogs and pigs.’

Agustina de la Cruz and Pablo de la Cruz, two of the children of the late Maximo de la Cruz, reside in Balayan, Batangas. Agustina is a farmer, while Pablo is a fisherman. Before their father’s death on January 15, 1968, Agustina like her cousins received now and then some shares from the proceeds of the land which then father told them they inherited. It was given by their aunt Lucia who was administering the property. After their father’s death, Lucia stopped giving Agustina her share because she (Lucia) resented her accusation of them having poisoned her father, who three weeks after Lucia and her son Regino had fetched him from Batangas, died in Barangka, Marikina, Rizal in the house of Regino. At the first anniversary of their father’s death celebrated in Balayan, Batangas, their aunt Lucia was present. Lucia informed the brothers and sisters that each will receive a share of P5,000.00 from the inheritance left by their father. When they asked their aunt as to when they will get their share, defendant Lucia answered that it will be as soon as everything is fixed and told them not to be impatient. They waited but Lucia never called for them. One time, Pablo went to the house of his cousin Pepe at Culiat, Quezon City, where then aunt Lucia also resides. However, the wife of his cousin Pepe informed him that their aunt Lucia has no time to talk to him. He then came to the conclusion that their aunt Lucia does not anymore want to give their share of P5,000.00 each. Pablo then consulted and sought the help and advice of Sixto Calalo, a sales supervisor residing in Manila but whose area covers that of Balayan, Batangas. That was in 1974." (R.A., pp. 254-258; Brief for Petitioners, pp. 12-15).

Respondents Lucia de la Cruz and Iglesia ni Kristo filed separate appeals before the defunct Court of Appeals, now Intermediate Appellate Court, docketed under C.A.-G.R. No. 63244-R.

On February 26, 1982, the Court of Appeals promulgated its decision reversing the judgment of the trial court, including its findings of fact and dismissed petitioner’s complaint on the ground that legally speaking, Policarpio de la Cruz never owned the property and therefore, the testimonial evidence of the petitioners could not be believed and sustained; that consequently, no co-ownership existed; that, even if there was, no trust existed; that laches and prescription bar petitioners’ claim of ownership; and that the Iglesia ni Kristo was an innocent purchaser in good faith.

According to the Court of Appeals, the undisputed facts are, and We quote:jgc:chanrobles.com.ph

"The undisputed facts indicate that the parcel of land in question is Lot No. 671 of the Piedad Estate, GLRO Rec. No. 5975, with an area of 184,268 square meters, more or less, situated in Barrio Culiat, Quezon City; that the totality of the Piedad Estate consists of a vast tract of land, registered on March 12, 1912, in the name of the Philippine Government, under Original Certificate of Title (OCT) No. 614 of the Register of Deeds of the Province of Rizal; that when the Piedad Estate was subdivided (with lot no. 671) as one of the resulting parcels) whoever was in possession of a particular lot was given priority and or preference in the acquisition thereof provided that the price and the cost of titling would be paid; that upon such payment, the government would issue the corresponding certificate of title; that Policarpio de la Cruz and his wife Luciana Rafael were originally in possession of the land; that they had three children, namely:chanrob1es virtual 1aw library

(1) Maximo de la Cruz (married to Felisa Yabut);

(2) Filomeno de la Cruz (married to Narcisa Santiago); and

(3) defendant-appellant Lucia de la Cruz (a widow);

that the plaintiffs-appellees herein are the descendants of the two sons (Maximo and Filomeno) of Policarpio; that on April 25, 1940, Lot no. 671 was segregated from the totality of the Piedad Estate, covered by OCT No. 614 and a separate title was issued in the name of.

‘Eugenia de la Paz, soltera’ and ‘Dorotea de la Cruz, viuda’

(this was Transfer Certificate of Title (TCT) No. 40355 of the Register of Deeds for the Province of Rizal); that on November 29, 1941, a deed of sale over Lot No. 671 was executed by Eugenia de la Paz and Dorotea de la Cruz (the registered owners) in favor of defendant-appellant Lucia de la Cruz; that said deed of sale was registered with the office of the Register of Deeds on July 17, 1943 and the corresponding certificate of title was issued to Lucia de la Cruz; that in 1971, Lucia de la Cruz obtained from the land registration court a reconstituted title (TCT No. RT-59 over Lot No. 671), the transfer certificate of title previously issued to her in 1943 having been lost; that subsequently, Lot No. 671 (this time, already covered by TCT No. RT-58) was subdivided into three (3) lots, each of which was issued a separate title, as follows:chanrob1es virtual 1aw library

(a) Lot No. 671-A containing an area of 30,000 square meters and covered by TCT No. 168320;

(b) Lot No. 671-B, containing an area of 4,268 square meters and covered by TCT No. 168321; and

(c) Lot No. 671-C, containing an area of 150,000 square meters and covered by TCT No. 168322’;

that meanwhile TCT No. 40355 (already previously issued to and in the names of Eugenia de la Paz and Dorotea de la Cruz) continued to exist; that when the title was transferred from the Rizal Registry to the Quezon City Registry, from the latter Registry assigned to this TCT a new number, RT-52; that this same lot (No. 671) was later subdivided into two lots, each with a title:chanrob1es virtual 1aw library

(a) Lot No. 671-A (TCT No. 16212)

(b) Lot No. 671-B (TCT No. 16213).

both in the names of Eugenia de la Paz and Dorotea de la Cruz; that the second lot (lot No. 671-B, with an area of 103,108 square meters) was sold on December 17, 1952 to one Narcisa Vda. de Leon (to whom TCT No. 2009 was later issued); that on May 6, 1964, Narcisa Vda. de Leon transferred the same lot 671-B to Nieves Paz Eraña (who was later issued in her own name TCT No. 79971).

The undisputed facts further show that in 1971, Nieves Paz Erana filed before the Court of First Instance of Quezon City Civil Case No. Q-16125 for ‘quieting of title’ against Lucia de la Cruz, Et Al., praying that TCT No. RT-58, (the reconstituted title of Lucia de la Cruz), as well as all titles derived therefrom, be declared null and void; that the case ended with the parties submitting a compromise agreement, with Lucia de la Cruz, among other things, paying plaintiff Eraña the amount of P250,000.00 to cover the acquisitive cost of the 103,108 square meters of land included in the certificate of title of defendant Lucia de la Cruz; that on July 17, 1975, Lucia de la Cruz sold a portion of Lot No. 671-C (one of the three portions to which the lot included in RT-58 had been subdivided, and which portion was covered by TCT No. 168322), consisting of 103,108 square meters to defendant-appellant Iglesia Ni Cristo, for the amount of P2,108,850.00; that this sale was later registered in the Registry of Deeds of Quezon City, with a new title, TCT No. 209554 being issued in the name of the Iglesia Ni Cristo; that another deed of absolute sale was executed for the remaining 84,356 square meters in favor also of the Iglesia and said sale was annotated on TCT No. 168322. In view of said sales and the fact that registration of the involved parcels is now in the name (separately) of Lucia de la Cruz and the Iglesia Ni Cristo, the present action for reconveyance with damages was instituted." (CA Decision, pp. 6-8).

In resolving the case, the Court of Appeals ruled that:jgc:chanrobles.com.ph

"After a study of the case We have come to the conclusion that the facts mentioned by the appellants Lucia de la Cruz and the Iglesia ni Cristo are the true facts, accordingly, We adopt the same as Our own. We likewise believe that there is substantial solidity in their legal conclusions.

The assigned errors deal with co-ownership, trust, prescription, laches, and bad faith. We plan to discuss them successively.

Anent the alleged co-ownership of the lot among the heirs (or descendants) of Policarpio de la Cruz, We say that definitely there was none. Indeed it was impossible, factually and legally, for Policarpio to be the owner for the entire Piedad Estate (of which lot no. 671 was then a part) had been since March 12, 1912 registered in the name of the Philippine Government. How then could anyone hold legitimate title adverse to that of the State? It is true that on certain occasions, Lucia referred to the ownership of the lot by her parents, but it is evident (from the State’s ownership of the same) that Lucia must have meant ‘possession’ as contra-distinguished from ‘co-ownership’. Lucia cannot be regarded in estoppel for estoppel can only apply to one with capacity (such) as one who is given authority to make a pronouncement). One who because of sheer ignorance does not know what she is talking about can never be in estoppel, particularly when a legal conclusion is involved. And while it is true that the two brothers lacked rudimentary education (alluded to by the trial court in its attempt to excuse their ostensible negligence in delaying their legal claims to the lot involved) it is also true that Lucia likewise was sadly wanting insofar as education was concerned. And precisely because there never was a co-ownership, there never also was a trust, whether express or implied. How could the brothers entrust to Lucia something they never owned (whether by themselves, or together with Lucia)? The testimonies of certain of the appellees to the effect that Lucia had from time to time doled out to them their shares in the produce of the ‘co-ownership’ and had in fact promised them their distributive shares in the form of P5,000.00 each are rather difficult to believe. As has already been said, there were no shares or produce to be distributed, there being neither a co-ownership or a trust. The testimonies in open court of plaintiffs Cesaria de la Cruz and Eleuterio de la Cruz that their fathers had told them they were going to inherit property from grandfather Policarpio are pure hearsay and consequently inadmissible in evidence (See tsn, p. 11, Sept. 9, 1976; tsn, pp. 5-10, Aug. 28, 1976). Be it noted that these witnesses never knew Policarpio, who had died way back in 1920. Then again there is no evidence whatsoever on how Policarpio ever acquired ownership over the land. No document of any kind was presented, no testimony at all that Policarpio had ever purchased or applied with the Government (the registered owner of the Piedad Estate) for the purchase of Lot No. 671. Truth to tell, even mere tax declarations or receipts of tax payments in the name of Policarpio were not presented. How then can one sincerely and logically conclude that Lot No. 671 was owned by Policarpio and inherited by his three children on his death in 1920 when in fact such Lot No. 671 had not even been segregated as yet from the Piedad Estate?

Additionally We take note of the fact that plaintiff Florentino de la Cruz admitted that he had once been the overseer of one Narcisa Vda. de Leon over the very same parcel of land now in dispute. If indeed he, together with his relatives, regarded the property as theirs, why did he allow himself to become a mere overseer? Since his relatives (most of the plaintiffs) resided nearby (Culiat, Quezon City), and knew that Florentino was a mere overseer, it is significant that said relatives (plaintiffs) did not question Narcisa Vda. de Leon’s claim of ownership over a large portion of the land subject matter of the instant suit. If they were positive of their right to the parcel (as their inheritance from their grandfather Policarpio) why did they not even press for an opportunity to occupy on the vast tract of land several square meters upon which they could erect their respective houses? From all these it is evident that together with Lucia, they had always believed that their grandfather’s ‘ownership’ was actually a case of mere ‘possession’. It is evident their eyes opened wide only when they heard of the negotiations leading to and the eventual sale of the lot by Lucia to her co-appellant, the Iglesia ni Cristo, the transaction involving as it did millions of pesos. Again let it be observed that they did not concern themselves with transactions involving other parts of the estate (such as the sale of lot no. 671-A to Juana de los Reyes, Basilisa T. Ramos and Maximo A. Argana).

Appellees’ assertion that they had been receiving certain distributive shares from Lucia defies belief. They have not shown who actually tenanted the property or were responsible for the products thereof. They have failed to point out the extent to the land under actual cultivation, the value of the harvest, the sharing agreed upon, if any: Their claim that from time to time they had received a ganta or two of rice plus ten pesos (P10.00) as their distributive co-owners’ shares bogs the imagination. Assuming that said amounts had actually been given them, it is easy to believe they were mere doleouts from a better-situated relative to less fortunate ones, perhaps a token of sympathy and assistance to needy kins rather than an acknowledgment of their right to share in the property as co-owners.

As already intimated, since there never was any co-ownership, there also never existed a trust (whether express or implied) on the property.

Assuming without admitting that Lucia and her two brothers co-owned Lot No. 671, what would be the effect of having the same registered in Lucia’s name alone on July 17, 1943 (See Entry no. 258, p. 7, Vol. 7 of the Primary Entry Book of the Registry of Property)? We say that no express trust was created, for an express trust concerning an immovable or any interest therein cannot be proved by parol evidence. Nor did an implied resulting trust arise (for there never was any intent to create a trust or to grant legal title to Lucia, at most she was given mere administration). What could have taken place was an implied constructive trust (one that is created by law when property is acquired by mistake or fraud, the objective of the law being to prevent unjust enrichment). It is now firmly entrenched in Our jurisprudence that an implied constructive trust prescribes in ten (10) years (Bacay Et. Al. v. Court of Appeals, Et Al., L-37504, Dec. 18, 1974, 61 SCRA 369; Ramos v. Ramos, No. L-19872, Dec. 3, 1972: Nacalaban v. CA, 80 SCRA 428) counted from the registration of the adverse title.

The registration of an instrument in the Office of the Register of Deeds constitutes constructive notice to the whole world and therefore discovery of the fraud is deemed to have taken place at the time of registration (Carantes v. Court of Appeals, 76 SCRA 514).



The issuance of Transfer Certificate of Title No. 7501 in 1931 to Mariano Duque commenced the effective assertion of adverse title for the purpose of the statute of limitations (Duque v. Domingo, No. L-32762, 80 SCRA 695, 664).

That the registration in Lucia’s name was clearly adverse to her brothers and the latter’s descendants is evident from Our discussion of Lucia’s CONTINUED NON-RECOGNITION of her relatives’ shares in the lot or in the proceeds/produce thereof. Hence the trial court was in complete error in saying there was a continuing and subsisting trust.

It is obvious from the foregoing that if at all an implied constructive trust existed previously, prescription has long barred the appellees’ recovery of their alleged shares. This must have been why neither brother nor their relatives caused the annotation of an adverse claim on Lucia’s property.

And even assuming in gratia argumenti that prescription has not yet set in, appellees are most certainly guilty of laches (and laches can apply in the two kinds of implied trusts, that is both the resulting trust and the constructive trust) (Ramos v. Ramos, 61 SCRA 300). There is no denying the fact that in the present case, the appellees delayed too long in the assertion of their alleged rights. The property was registered in Lucia’s name on July 17, 1943 and it was only on March 21, 1975 when appellees appeared in a hearing of Civil Case No. Q-16125, CFI, Quezon City (Erana Et. Al. v. dela Cruz, Et. Al.) and manifested an intent to intervene therein, and it was only on August 14, 1975 that they filed the instant case (more than 32 years later) asserting their claims over Lot 671. Their claim can thus hardly evoke any judicial compassion. Vigilantibus it non dormientibus jure subveniunt. If eternal vigilance is the price of liberty, one cannot sleep on one’s right for more than thirty (30) years and still expect it to be preserved in its pristine purity.

Even if We were to hold Lucia still liable and that neither prescription or laches would enable her to escape from the appellees’ demands, the fact is that the Iglesia ni Cristo is an innocent purchaser for value, and should not therefore be prejudiced. Good faith is always presumed, and upon him who alleges bad faith on the part of a possessor rests the burden of proof. At the time the Iglesia purchased the property from Lucia, the same was registered under the Torrens System in her name, with the title showing no adverse claims, liens, burdens or encumbrances. One who buys from the registered owner —

‘is not bound to go behind the certificate and inquire into transactions the existence of which is not there intimidated. . . . he is only charged with the notice of the burdens on the property which are noted on the face of the register or on the certificate of title.’

‘If the rule were otherwise, the efficacy and conclusiveness of the certificate of title which the Torrens System seeks to ensure would entirely be futile and nugatory.’

The assertion of the trial court that the Iglesia was a buyer in bad faith because it had ‘constructive’ if not actual knowledge of the claim of the plaintiffs’ is not borne by the facts because there is nothing in the records of this case to indicate that the various claimants referred to by Judge Herminio Mariano in his court testimony (as witness for the Iglesia) are the very plaintiffs-appellees in this case. There were thirteen occupants of the property titled in Erana’s name (five of whom were her overseers, the other eight being squatters). Be it remembered that the witness was not cross-examined on this matter, evidently because everybody knew that when witness referred to ‘claimants’ he was not referring to the plaintiffs-appellees (See tsn, pp. 7-9, 18-19, 63, Feb. 16, 1977). The trial court likewise faulted the Iglesia for having purchased the property at only P25.00 per square meter when allegedly in 1975 the ongoing price in the vicinity was P100.00. Again the latter price is not borne out by the facts. Besides, the total area involved was so big that only very few could have been in a position to buy even if they had been interested. The Iglesia cannot also be blamed for registering the same the same day it was effected. This is a normal prerogative given to every purchaser.

Finally, whether the Iglesia was in good faith or in bad faith is really of no significance, for after all, the appellees as already extensively dismissed are not entitled to any proprietary interest in the lot.

PREMISES CONSIDERED, the applied decision is hereby SET ASIDE and REVERSED, and a new one is hereby rendered, dismissing the complaint, with costs against the Plaintiffs-Appellees.

SO ORDERED."cralaw virtua1aw library

Petitioners’ motion for reconsideration having been filed March 27, 1982 and denied for lack of merit in the Court of Appeals’ resolution of September 7, 1982, petitioners now come to Us in the instant petition for review, praying that the decision of the Court of Appeals as well as the resolution denying reconsideration be reversed and set aside, and that a new decision be promulgated, reinstating and affirming the judgment of the Court of First Instance of Rizal, Quezon City.

The petition for review before Us sets forth the following assignments of error:chanrob1es virtual 1aw library

I. The Court of Appeals grievously erred in not declaring that, on their face, the reconstituted titles of both respondent Lucia de la Cruz and her alleged predecessors-in-interest, Dorotea de la Cruz and Eugenia de la Paz, are absolutely null and void and without legal force and effect.

II. The Court of Appeals grievously erred in holding that respondent Iglesia ni Kristo was an innocent purchaser for value and in good faith under the established circumstances, particularly in the face of two different titles of two different owners over the same property; and in not holding that, in any event, respondent Iglesia ni Kristo purchased nothing.

III. The Court of Appeals grievously erred (A) in not recognizing the legal ownership of Policarpio de la Cruz expressly recognized by the government and judicially admitted by respondent Lucia de la Cruz binding on her successor-in-interest, respondent Iglesia ni Kristo; and (B) in not upholding the existence of a co-ownership between the petitioners and respondent Lucia de la Cruz.

IV. The Court of Appeals grievously erred in holding that petitioners’ case is barred by both prescription and laches.

V. The Court of Appeals grievously erred in not affirming the judgment of the Court of First Instance in toto, including its award for moral and exemplary damages as well as attorney’s fees.

The principal issue in controversy is the question of ownership of Lot 671, admittedly an original part and parcel of the Piedad Estate. For its resolution, the basic and fundamental precept to be followed, in Our view, is the rule and doctrine laid down by the Supreme Court in Jacinto v. Director of Lands (1926), 49 Phil. 853 that the so-called friar lands, to which the Government of the Philippines holds title, are not public lands but private or patrimonial property of the government. The Piedad Estate was among the friar lands which the government of the Philippines purchased from the Philippine Sugar Estates Development Company, Limited, La Sociedad Agricola de Ultramar, the British-Manila Estate Company, Limited, and the Recoleto Order of the Philippine Islands for the sum of $7,239,784.66 on December 23, 1903, as indicated in the Preamble to the Friar Lands Act, Public Act No. 1120 enacted on April 26, 1904, hereinbefore quoted in this decision. These properties consisted of about 164,127 hectares of land situated in the provinces of Laguna, Bulacan, Cavite, Bataan, Cebu, Rizal, Isabela and Mindoro. These lands are not public lands in the sense in which these words are used in the Public Lands Act, numbered nine hundred and twenty six and cannot be acquired or leased under the provisions thereof. (See last paragraph, Preamble to PA 1120).

And prescinding from this ruling or doctrine in the Jacinto case, the Supreme Court in the case of Balicudiong v. Balicudiong, 39 SCRA 386, held that one who acquires land under the Friar Lands Act (Act 1120) as well as his successor-in-interest, may not claim successional rights to purchase by reason of occupation from time immemorial; that under the Friar Lands Act, only "actual settlers and occupants at the time said lands are acquired by the government" were given preference to lease, purchase, or acquire their holdings, in disregard of the settlement and occupation of persons before the government acquired the lands.

The ruling of the appellate court that definitely there was no co-ownership of Lot 671 among the heirs (or descendants) of Policarpio de la Cruz because it was impossible, factually and legally, for Policarpio to be the owner, for the entire Piedad Estate (of which Lot No. 671 was then a part) had been since March 12, 1912, registered in the name of the Philippine Government, is correct, and We affirm the same, considering the provisions of the Friar Lands Act and the doctrine laid down by this Court that said Friar lands are the private and patrimonial property of the Philippine Government. And there being no evidence as to how Policarpio acquired ownership over the land, no document of any kind presented, and no testimony or proof whatsoever that Policarpio had ever purchased or applied with the government for the purchase of Lot No. 671, We reject petitioners’ repeated pretensions that Policarpio de la Cruz was the owner of Lot 671. He may have been an actual settler or occupant in the land at the time said lands were acquired by the government and was given the preference to lease, purchase or acquire his holding, which preference, however, is in disregard of the settlement and occupation of persons before the government acquired the land but absent any showing, proof or evidence that he applied to purchase or acquire the holding, Policarpio de la Cruz acquired no title, right or interest whatsoever which he could have transmitted by succession to his children and heirs.

The admission by respondent Lucia de la Cruz that she inherited the property from her father, Policarpio de la Cruz; that Policarpio’s possession from time immemorial was in concept of owner; the allegation of the parties that the government has expressly recognized the right of Policarpio to the land in litigation and that even the trial and appellate courts’ decisions assume such express recognition by the government to Policarpio’s claim to the property — all these are unavailing and of no effect in the face of the precedent-setting doctrine of this Court that the land is private and patrimonial property of the government and the specific provision of the Friar Lands Act that the actual and bonafide settler should he desire to purchase the land occupied by him shall pay to the government the actual cost thereof, granting to him 15 years from the date of the purchase in which to pay the same in equal annual installments, should he so desire, paying interest at the rate of 4% per annum on all deferred payments. When the cost thereof shall have been ascertained which included the cost of surveys, administration and interest upon the purchase money, the Chief of the Bureau of Public Lands then gives the said settler and occupant a certificate setting forth in detail that the government has agreed to sell such settler and occupant the amount of land so held by him, at the price so fixed, and that upon the payment of the final installment together with all accrued interest, the government will convey to such settler and occupant the land so held by him by proper instrument of conveyance which is then issued and become effective in the manner provided in Section 122 of the Land Registration Act.

We have searched the entire records of this case and there is absolutely no showing, proof or evidence whatsoever, documentary or testimonial, that Policarpio de la Cruz purchased or attempted to purchase, in cash or by installment, Lot 671 of the Piedad Estate. Petitioners’ submission that "the dominical rights of petitioners over 2/3 of the property, as marked out by intestate succession, are still preserved" (Brief of Petitioners, p. 67) is without merit. It is repugnant and inconsistent with the Jacinto doctrine, and there is no factual basis of compliance with the requirements of Section 11, PA 1120.

More than that, the Government of the Philippines is not a party to this proceedings and it cannot be bound by any act, allegation, declaration, or admission by either or both parties relating to the disposition and ownership of the private and patrimonial property of the government such as the Friar land herein involved. Even the assumption of both courts, the trial and appellate court, that the government has expressly recognized Policarpio’s claim to the property in question, is erroneous.

Now, to the other issues:chanrob1es virtual 1aw library

1. Petitioners’ contention that a trust was created over the land in their favor as beneficiaries when Lucia de la Cruz took over the administration, possession and occupancy of the property, being the eldest daughter of Policarpio and has recognized the share of petitioners by supposedly giving them P10.00 and a few gantas of rice produced from the land, is without merit. As the appellate court held, Policarpio never had title to the land and legally speaking, he had no right to transmit to his daughter Lucia, and his sons Maximo and Filomeno, much less to the petitioners as the successors-in-interest of the deceased brothers Maximo and Filomeno. We have affirmed the appellate court’s ruling that Policarpio had no title to the land, and the legal consequence thereof is that no trust relationship existed over the land in favor of the petitioners as beneficiaries and the respondent Lucia de la Cruz as the supposed trustee. This is so because in the first place, the land is the private and patrimonial property of the government and in the second place, it has not been shown or established that the land had been sold by the government to Policarpio de la Cruz. If he had the preference to purchase the land but he failed to exercise said preference or avail the benefits thereof, the same must have been abandoned or had lapsed through inaction, neglect or omission up to the time of his death in 1920.2. The mother title of Lot 671 is OCT No. 614 of the Register of Deeds of the Province of Rizal registered on March 12, 1912 in the name of the Philippine Government. When Lot 671 was segregated, the original title was partially cancelled and TCT 40355, T-201 was issued to Eugenia de la Paz and Dorotea de la Cruz by virtue of Entry No. 3241 which reads: . . .

"Vendido a Eugenia de la Paz y Dorotea de la Cruz el Lote No. 671 del terreno en este certificado de titulo, mediante escritura ratificada al 27 de Julio de 1931 en Manila, ante Vicente Garcia, Notario Publico; se cancela parcialmente al presente certificado de titulo, en cuanto al lote mencionado y se expide otro a nombre de las compradoras con el No. 40355, folio 5, Tomo T-201 del libro de transferencias; archivandose la escritura de que se ha hecho referencia en el Legajo T-No. 40355."cralaw virtua1aw library

TCT No. 40355, T-201 in the name of "Eugenia Paz, soltera y Dorotea de la Cruz, viuda" was cancelled by virtue of Entry No. 258, page 7, Vol. 7, Primary Entry Book of the Registry of Deeds of Manila. Said entry reads as follows:jgc:chanrobles.com.ph

"1. Number of Entry 258

2. Date of filing: Month, day & year July 17, 1943

Hour and Minute 10:15 A.M.

3. Nature of Contract Sale

4. Executed by Doroteo (sic) de la Cruz, et al

5. In favor of Lucia de la Cruz

6. Date of Instrument 11-29-41

7. Relative to:chanrob1es virtual 1aw library

Certificate of Title No. 40355

Book T-201

8. Papers presented by:chanrob1es virtual 1aw library

Name Regino Cleofas

Address Pasong Tamo, Quezon City

9. Contract Value P2,500.00 (Exh. P)

10. Remark Caloocan"

In due course of official business and duty, a new Transfer Certificate of Title must have been issued to the new owner, Lucia de la Cruz. The entire records do not disclose the number of the new Transfer Certificate of Title (TCT) in the name of Lucia de la Cruz. When in 1971, Lucia de la Cruz petitioned for the reconstitution of her title in the Court of First Instance of Manila, she alleged her title as No. (N.A.). The Court granted the petition and the Register of Deeds of Manila issued to her TCT No. RT-58, thereby cancelling TCT-40355, T-201.

Petitioners now claim that the reconstituted title TCT No. RT-58 is null and void and without legal force and effect, petitioners’ counsel having failed after a "recent wide hunt" to locate the existence of TCT No. 40355; T-201 in the Registries of Deeds of Manila, Quezon City and Pasig and the resulting "nil" investigation to locate Primary Entry No. 258.

But these are factual issues to which We may not properly address Ourselves in the instant petition for certiorari. Moreover, the petition for reconstitution was duly published and proper notices posted in accordance with law, and after due hearing, was granted by the court in the exercise of its authority and jurisdiction. It must be assumed that official duty was likewise duly and properly exercised in the premises. Hence, We reject petitioners’ assignment of error that the Court of Appeals erred in not declaring that the reconstituted title of Lucia de la Cruz is absolutely null and void.

3. With respect to the reconstituted title of Dorotea de la Cruz which was granted by the Court of First Instance of Rizal on December 14, 1945 and TCT 5284 of the Register of Deeds of Quezon City was issued in substitution and/or reconstitution of TCT 40355 of the Register of Deeds of Rizal by virtue of the following inscription on TCT 40355, to wit:jgc:chanrobles.com.ph

"Se expide otra copia para el dueño del presente certificado de titulo en sustitucion del duplicado que se alega haberse quemado, en virtud de una orden del juzgado de Primera Instancia de Rizal dictada el 14 de Decembre, 1945, en Expediente G.L.R.O. Rec. No. 5975, y en donde se declara nulo y ninguna valor dicho duplicado quemado.

MAMERTO TINGKUNGKO

Register of Deeds Interino"

it may be true that the order granting reconstitution was null and void by reason of the failure to cause the necessary publication of the petition, and, therefore, the reconstituted title was ineffective. More than that, it is established that Dorotea de la Cruz and Eugenia de la Paz had previously sold the land to Lucia de la Cruz executed on November 29, 1941 as indicated in Entry No. 258 so that Dorotea de la Cruz was no longer the owner at the time she petitioned for reconstitution. Nonetheless, it is not disputed that Dorotea de la Cruz together with Eugenia de la Paz were the registered owners of Lot 671 under TCT 40355, T-201 of the Register of Deeds of Rizal, and they could legally transfer the same to Lucia de la Cruz who thereafter sold in favor of respondent Iglesia ni Kristo.

4. Petitioners argue that "Now, therefore, with the undisputed family tree and with the absence of any other property of Policarpio de la Cruz aside from the property in litigation, the conclusion should be ineluctable that co-ownership exist between the petitioners and respondent de la Cruz" (Brief of Petitioners, p. 66). The argument is supported by the allegation that "Policarpio owned no other property is a fact established by a Lucia witness no less, one Restituto Gomez in the reconstitution case who was asked the question as to ‘whether Mr. Policarpio de la Cruz has any other property,’ and his answer was: ‘That same property, Policarpio de la Cruz was actually staying on that land.’" (Brief of Petitioners, p. 67).

The argument lacks factual basis. Analyzing the answer of the witness, it is self-evident that it is not responsive to the question. It is hazy, ambiguous, and not categorical. The testimony does not prove that Policarpio de la Cruz had no other property aside from Lot 671. And while petitioners bank on the circumstance that the witness Gomez was a Lucia witness no less and quotes testimony given in the reconstitution case, petitioners conveniently ignore documentary exhibit presented by them showing that Policarpio de la Cruz had owned 65 hectares of land. Petitioners presented as their exhibit Exhibit "D-2", the Counter-Affidavit of Lucia de la Cruz, paragraph 1 of which reads:jgc:chanrobles.com.ph

"1. It is not true as complainants state in their affidavit that when our father, Policarpio Cruz, died sometime in the year 1920 that Lot No. 671 of the Piedad Estate was his only property, the truth is that during his lifetime he owned approximately sixty five (65) hectares as shown in the Official Gazette of 1911 when the Piedad Estate was published under G.L.R.O. 5975, the boundary of the land of Policarpio Cruz to the South is the Culiat Creek, and complainants are aware of this fact."cralaw virtua1aw library

Indeed, the most telling and revealing piece of documentary evidence among the voluminous records of this case is the copy of the Official Gazette of 1911 when the registration of the Piedad Estate was published as mentioned in paragraph 1 above. The copy of the Official Gazette of 1911 is marked Exhibit "N-1-A", Exhibit "3-Cruz" being pp. 152, 153 and 154 of the Gazette. Excerpts from this Exhibit show the following:jgc:chanrobles.com.ph

"Court of Land Registration

(Registration of title — G.L.R.O. No. 5976)

The Agent of the Compania Agricula de Ultramar and the Procurator of the PP. Agustino Calsados, these two c/o Convent of San Agustin, Calle Palacio; and Pelagia Teotimo, Calle Esculdo No. 65, District of Quiapo; Augusto Tuazon, Agent of the Heirs of Jose Rivero Tuazon . . ., Policarpio Cruz, Gregorio Sevilla, Juan Francisco, . . .;

Whereas, an application has been presented to this Court by the Government of the Philippine Islands, through Director of lands, of Manila, P.I. to register and confirm its title to the following described land, to wit:chanrob1es virtual 1aw library

A piece of land known as Piedad Estate situated to the Municipalities of San Mateo and Caloocan, Province of Rizal, P.I., more particularly bounded and described as follows:chanrob1es virtual 1aw library

(The technical description of the land follows.).

The partial description is stated as follows:jgc:chanrobles.com.ph

"Bounded on the N. by the Tala Estate separated by the Tuliajan River; NE by the Tala and Payatan Estates separated by the Tuliajan and Lipjo Rivers; N. by the Patayas Estate; S. by the Santa Mesa-Diliman Estate separated by the Culiat River by properties of Hugo Lingat, Tomas Mandaba, Gregorio Eugenio, Mamerto Cruz, Jacinto Diaz, Policarpio Cruz, Gregorio Sevilla, and Juan Francisco, and by the Marikina Estate and by the Maynito Estate . . .’

(The above notice is dated 10th day of January in the year 1910.).

Petitioners contend that the above notice of entry is an express recognition by the government of the ownership of Policarpio de la Cruz. Even the trial and appellate courts assume in their respective decisions that the government has expressly recognized the ownership and title of Policarpio de la Cruz. Petitioners’ contention and the courts’ assumption are not correct.

Properly understood, the above notice in the Official Gazette clearly indicate that the properties of the Piedad Estate which include Lot 671 subject of the application of the government and which eventually were registered under OCT No. 604 in the name of the Government, were outside, in fact separated from other lands occupied by Hugo Lingat, Tomas Mandaba, Gregorio Eugenio, Mamerto Cruz, Jacinto Diaz, Policarpio Cruz and others. In other words, Policarpio Cruz was one of the adjoining owners on the South separated by the Culiat River. It further indicates that Policarpio de la Cruz had lands other than the property in litigation which is Lot 671. In passing, We note from the notice that Mamerto Cruz was also an adjoining owner.

The fact that Mamerto Cruz, one of the two sons of Policarpio de la Cruz and brother of the respondent Lucia de la Cruz, appears as an adjoining boundary owner to the Piedad Estate, gives support to the claim of Lucia de la Cruz that their father, Policarpio, had other lands aside from the property in litigation. And further credence is established in the testimony of Leoncio Cruz, the son of Mamerto Cruz, who testified in the reconstitution case that he (Leoncio) is the owner of property adjacent to Lot 671, which he inherited from his father, Mamerto (Exhibit "H", p. 32 thereof).

5. With respect to the alleged error of the Court of Appeals in holding that respondent Iglesia ni Kristo was an innocent purchaser for value and in good faith, We hold and rule that under the law and jurisprudence and in view of the historical facts recited earlier, respondent Iglesia ni Kristo cannot be faulted in taking care to protect its interests in acquiring Lot 671, confronted as the Iglesia was by the conflicting titles of Lucia de la Cruz and Dorotea de la Cruz over the same land. By procuring and effecting the settlement of the case for Quieting of title filed by Nieves Paz Eraña before the Court of First Instance of Quezon City, Civil Case No. Q-16125 under a compromise agreement and executing the Deed of Absolute Sale of Segregated Portion of Registered Land and the Deed of Assignment made by the Erañas in favor of both Lucia de la Cruz and Iglesia ni Kristo, respondent Iglesia did what a prudent, careful and cautious vendee would do under the circumstances, considering the purchase price paid and invested and the vast area of the property acquired. For while indeed, two (2) titles crop up under different names for the same land, the purchaser is not necessarily obliged to be so naive and innocent and require the title holder to clear their rights first before buying the property he is interested in acquiring.

True it is that a would-be purchaser of property known to have two titles would certainly have the duty to inquire about the validity of those two titles against each other, which would necessarily involve examining their validity per se against any other title. (Brief of Petitioners, p. 61). But the better part of prudence, caution and wisdom would be to satisfy and pacify both title-holders together with their assignees or transferees. This is what respondent Iglesia did to clear and quiet its own acquisition of the property under litigation. And assuming that there were adverse claimants such as petitioners herein, respondent Iglesia was not duty-bound as purchaser for value to respect their claims and interests for after all, the same have been found and ruled to be false and frivolous.

There is justification in the appellate court’s observation that petitioners moved no finger when Lucia disposed smaller portions of the lot to Juana de los Reyes, Basilisa T. Ramos and Maximo A. Argana and "their eyes opened wide only when they heard of the negotiations leading to and the eventual sale of the lot by Lucia to her co-appellant, the Iglesia ni Kristo, the transaction involving as it did millions of pesos." It took them 32 years to assert their claim to Lot 671 when they filed the case for reconveyance on August 14, 1975, which is a clear case of inaction and neglect, thereby converting whatever interest petitioners had into a stale demand. (Mejia v. Gamponia, 100 Phil. 277; Miguel v. Catalino, L-23072, 26 SCRA 234). Otherwise, there is no meaning to the maximum Vigilantibus et non dormientibus jura subveniunt (The laws serve the vigilant, not those who sleep.)

With Our affirmance of the Court of Appeals’ holding that no trust (whether express or implied) existed on the property between Lucia de la Cruz and petitioners, the legal provision that is inescapable and applicable is Section 38 of the Land Registration Act whereby the registered title of Lucia de la Cruz reconstituted as TCT No. RT-58 in 1971 became indefeasible and incontrovertible one year from its issuance. As registered owner, Lucia de la Cruz had the perfect and legal right to sell, assign, and convey the property to respondent Iglesia ni Kristo who as purchaser for value in good faith holds the same free from an encumbrances except those noted in said certificate of title. (Section 39, Land Registration Act). The Iglesia may then safely rely on the correctness of the certificate of title issued therefor and the law will in no way oblige him to go behind the certificate to determine the condition of the property. (Director of Lands v. Abache, Et. Al. 73 Phil. 606). Where there was nothing in the certificate of title to indicate any cloud or vice in the ownership of the property, or any encumbrance thereon, the purchaser is not required to explore farther than what the Torrens title upon its face indicates in quest for any hidden defect or inchoate right that may subsequently defeat his right thereto. If the rule were otherwise, the efficacy and conclusiveness of the certificate of title which the Torrens system seeks to insure would entirely be futile and nugatory. (Reynes v. Barrera, 68 Phil. 656; De Lara and De Guzman v. Ayroso, 50 O.G. No. 10, 4838, cited in Fule v. De Legare, 7 SCRA 351).

Thus, the indefeasibility and imprescriptibility of a Torrens title is preserved and maintained and the purposes of the Torrens System of land registration achieved which is to insure stability by quieting titled lands and put to a stop forever any question of the legality of the registration, in the certificate, or which may arise subsequent thereto. And once the title was registered, the owner might rest secure, without the necessity of waiting in the portals of the court, or sitting in the "mirador de su casa" to avoid the possibility of losing his land in the classic pronouncement of this Court in Legarda v. Saleeby, 31 Phil. 590, reiterated in Salao v. Salao, 70 SCRA 65, 84, and Director of Lands v. Court of Appeals, 102 SCRA 370, 451.

WHEREFORE, IN VIEW OF ALL THE FOREGOING, the decision of the respondent Court of Appeals (now Intermediate Appellate Court) in CA-G.R. No. 63244-R is hereby AFFIRMED in toto. Costs against petitioners.

Petition denied.

SO ORDERED.

Makasiar, Concepcion, Jr. and Escolin, JJ., concur.

Aquino, J., concurs in the result.

Abad Santos and Cuevas, JJ., took no part.

The charge against appellants Ernesto Bernal, alias Loloy, Artemio Bernal, Rosendo Emoc and Nicol Jimenez is serious illegal detention with multiple rape. After due trial, the court a quo found them guilty of the separate crimes of serious illegal detention and rape in its decision, the dispositive portion of which reads:jgc:chanrobles.com.ph

"WHEREFORE, with respect to the charge of Serious Illegal Detention, the Court finds the defendants Ernesto Bernal, Nicol Jimenez and Rosendo Emoc guilty beyond reasonable doubt of the crime of Serious Illegal Detention aggravated by the use of motor launch and superior strength but refraining from imposing the Death penalty which is inevitable under the circumstances hereby sentences the defendants only to LIFE IMPRISONMENT.

"With respect to the Rape committed on April 10, 1966, the Court finds the defendants Ernesto Bernal, Rosendo Emoc and Nicol Jimenez of the crime of Rape qualified with the use of a weapon and its commission by two or more persons and aggravated by nocturnity which should inevitably result to the imposition of the Death penalty but the Court, refraining from imposing the capital punishment, hereby sentences each of the defendants to LIFE IMPRISONMENT and to indemnify the offended party in the amount of P10,000.00.

"With respect to the Rape committed on April 12, 1966, the Court finds the defendants Ernesto Bernal, Artemio Bernal, Rosendo Emoc and Nicol Jimenez guilty beyond reasonable doubt of the crime of Rape qualified by the use of a deadly weapon and its commission by two or more persons aggravated by nocturnity which inevitably would result to Death penalty but the Court, refraining from imposing the capital punishment, hereby sentences each of the defendants to the penalty of RECLUSION PERPETUA and to indemnify the offended party in the amount of P10,000.00.

"It is understood that in the service of the sentence Ernesto Bernal, Rosendo Emoc and Nicol Jimenez shall not serve a penalty of imprisonment of over forty (40) years. (Article 70, Revised Penal Code)." (pp. 157-158, Records)

Prosecution evidence shows that about eight o’clock in the morning of April 10, 1966 Isidra Sendon, who was then only 16 years old and working as a maid in the house of Engineer Jose Castaño, boarded a launch called "Juanita III" at Tabina, Zamboanga del Sur, bound for Pagadian. She was accompanied by her sister, Angelina Sendon. The launch arrived at Pagadian, Zamboanga del Sur at twelve o’clock noon of the same day. Upon its arrival, the passengers alighted, except Isidra who was prevented by appellants Ernesto Bernal, Nicol Jimenez, Rosendo Emoc and one Andot who is still at-large, from getting down, alleging that she has not paid her fare. Isidra asked permission to go to the house of her master, Eng. Castaño, to get money for her fare in the amount of P2.00 because she was able to bring with her only P1.00. Her plea fell on deaf ears. Appellants then removed the gang plank and moved the launch 5 to 6 meters away from the wharf. When she tried to peep through the windows, they pulled her inside.chanrobles law library

About seven o’clock that evening, she noticed the launch leaving the wharf and she asked where they were going. Appellants answered that the launch is going to Tabina. However, the launch instead went to a place called "Isla", an isolated island about 3 to 4 kilometers from the wharf.

Appellants offered Isidra food but she could not eat because she was worried about her situation. Thereafter, appellants Ernesto Bernal, Nicol Jimenez, Rosendo Emoc and Andot pulled her but Isidra clung to a post. Ernesto Bernal pulled her away from the post and pinned her down the floor face upward. With a pistol pointed at her, Ernesto succeeded in having sexual intercourse with Isidra, while Nicol Jimenez, Rosendo Emoc and Andot were holding her. After Ernesto had satisfied his beastly desire, Andot took his turn while the three companions held her. Nicol Jimenez and Rosendo Emoc then followed in satisfying their sexual lust.

The following day, April 11, 1966, at about six o’clock in the morning, the launch "Juanita III" returned to the wharf of Pagadian. Isidra tried to disembark but was prevented by Ernesto Bernal and Andot. About eight o’clock, the launch left Pagadian for Tabina and arrived there at twelve o’clock noon. She wanted again to get down at the wharf of Tabina but Bernal stopped her.

On April 12, 1966 at 8:00 A.M. the launch returned to Pagadian but she could not leave because she was prevented by appellants from getting out of the launch. At about seven o’clock in the evening, appellants again brought Isidra to Isla for the purpose of satisfying their beastly desires. She fought back but her efforts were no match to the strength of the appellants. Bernal pointed his pistol at her and again succeeded in his sexual assault upon her. He was followed by Artemio Bernal, Andot, Nicol Jimenez and Rosendo Emoc.

In the morning of April 13, 1966, the launch left the Isla for the Pagadian wharf and this time when Isidra tried to leave the launch, appellants did not stop her. She went to a Chinaman’s store near the wharf to rest until ten o’clock in the morning. She then went to the house of her employer, Eng. Castaño. When her sister Susan Sendon arrived on April 17, 1966, she related the sordid incident which befell her. Susan in turn related to Engineer and Mrs. Castaño what had happened to Isidra.chanrobles.com:cralaw:red

They brought her to Dr. Jovencio Cabahug for medical and physical examination. Said doctor made the following findings:jgc:chanrobles.com.ph

"1. Vagina admits two (2) fingers easily

2. Healed recent tear of vaginal hymen at three, four, nine and ten o’clock positions." (Exhibit "A", p. 5, Records)

Thereafter, they went to the municipal building of Pagadian where they filed a complaint with the Chief of Police against the appellants.

In his defense, Ernesto Bernal testified that at the time he was the assistant pilot of the launch "Juanita III." Complainant Isidra Sendon was one of the passengers that morning of April 10, 1966. They arrived noontime at Pagadian where she disembarked. At 6:30 in the evening, the launch went to Isla. He asked Isidra why she was inside the boat and she replied that she did not like to go to her master and would like to return to Tabina because she forgot her things. That night of April 10, 1966 he and Rosendo Emoc slept at one end of the launch while Nicol Jimenez and complainant Isidra Sendon slept at the other end.

He denied the truth of the charge that he had sexual intercourse with Isidra, much less, was he armed with a pistol that night.

The following morning of April 11, 1966, the launch returned to the wharf from Isla. Isidra went down the wharf but when the launch left she boarded again. Upon arrival at Tabina the passengers disembarked including complainant. The following day, April 12, 1966, the launch returned to Pagadian and one of the passengers was Isidra. That evening, the launch sailed for Isla again with the following on board: Ernesto-Bernal, Nicol Jimenez, Rosendo Emoc, Francisco Manayon and Isidra Sendon. At Isla, complainant and Nicol Jimenez slept together on one end of the launch; the rest, at the other end. He denied having sexual intercourse with her that night.

Appellant Rosendo Emoc, the cook of the launch, declared that he hardly knew the complainant; that he had no participation whatsoever in the alleged detention of Isidra inside "Juanita III" near Isla, much less had carnal knowledge with her at any time.

Appellant Nicol Jimenez, a mechanic of "Juanita III", admitted having met Isidra on April 10, 1966. She was one of the passengers of the launch. After introducing himself, he made love to her and when the launch arrived at Pagadian she was already his sweetheart. That evening of the same day, they slept together and she gave herself completely to him. He denied the truth of the accusation that he and his companions raped her at the point of a gun and/or that she was prevented from leaving the boat from April 10 to 12, 1966.

Appellant Artemio Bernal testified that he came to know Isidra Sendon when the complaint was filed against them; that while it is true that on April 12, 1966 he was inside "Juanita III" he and his co-accused did not rape complainant at Isla; that somebody approached his father asking for P2,000.00 and when his father refused he was included in the complaint.chanrobles.com.ph : virtual law library

The trial court, after hearing the evidence of the prosecution and the defense made the following observations:jgc:chanrobles.com.ph

" [T]he Court accepts the version of the offended party Isidra Sendon, a woman who is only 16 years old. The version of the defendants, particularly Nicol Jimenez that he succeeded in courting Isidra Sendon in the presence of 20 passengers in the brief space of five hours on April 10, 1966 and that by the evening of that same date they had already a rendezvous at Isla and had sexual intercourse with her in the presence of other men is highly incredible, besides adding insult to injury. The Court cannot believe that the defendant Nicol Jimenez, who, in the opinion of the Court, does not have the physical charm or qualities that can win a woman’s heart in a whirlwind courtship particularly that of a sixteen-year old girl, can succeed in winning the love of a sixteen-year old girl within the brief space of five hours and on that same day have carnal knowledge with her. If he was really the sweetheart, why did the offended party file a complaint charging his (sic) alleged sweetheart for a capital offense on April 28, 1966? The reason given by the defendant Nicol Jimenez that it was due to the fact that he could not marry her yet on account of poverty is too absurd an explanation to be accepted by the Court. And if that is her reason for filing a complaint, why does she accuse other defendants?

"Ernesto Bernal is another witness whose testimony cannot be believed by this Court. He declares that they brought the launch to Isla on the night of April 10, 1966 and April 12, 1966 to avoid thieves. Why should Ernesto Bernal be afraid of thieves when he admits that there was no more cargo inside the boat when all the passengers disembarked, and instead of staying at the wharf where there is a better accommodation provided with police protection they went to an isolated island where they may be exposed to piratical attacks which he admits abound in this place of Mindanao. The reason that prompted the defendant to bring the launch to Isla, in the considered opinion of the Court, is to give them ample freedom and liberty without detection from proper authorities, to consummate their beastly act against the minor offended party." (pp. 123-124, Rollo)

The issue in this review of the aforesaid judgment of the court below revolves around the credibility of the witnesses, i.e., whether or not the trial court was correct in giving more weight to the testimony of the complainant and in finding appellants guilty of the offense charged.

The rule in this jurisdiction on the matter of credibility of witnesses is by now settled. "Unless there is a showing that the trial court had overlooked, misunderstood or misapplied some fact or circumstance of weight and substance that would have affected the result of the case, the appellate court will not disturb the factual findings of the lower court. For, having had the opportunity of observing the demeanor and behavior of the witnesses while testifying, the trial court, more than the reviewing tribunal, is in a better position to gauge their credibility and properly appreciate the relative weight of the often conflicting evidence for both parties (People v. Ablaza, 30 SCRA 173, 176)."cralaw virtua1aw library

In the case at bar, there is no reason for Us to overrule the judgment of the trial judge who gave credence to the declaration of the complainant. The records of the case are convincing enough that Isidra’s declaration on the facts of her detention and assault on her chastity rang of truth. In the first place, no motive has been adduced why complainant, then only 16 years old and, therefore, would have wanted least public exposure of her harrowing experience, would come out and undergo legal scrutiny of her unfortunate encounter with the appellants, other than the desire to tell the truth. Second, her testimony appears to be veracious. "When a woman testifies that she has been raped, she says in effect all that is necessary to show that rape has been committed. If the testimony is not improbable, the defendant may be convicted on the basis of such uncorroborated testimony (People v. Royeras, 56 SCRA 666, 672)." Third, the allegation that Artemio Bernal was included in the charge because his father refused to pay P2,000.00 cannot be taken seriously considering that the identity of the person who tried to extort said amount was not shown, nor was Artemio’s father even presented as a witness.

We agree with the trial court that appellants are guilty of the separate crimes of illegal detention and of multiple rape committed on April 10 and 12, 1966. As correctly observed by the Solicitor General, no complex crime was committed by the appellants because complainant could have been raped even if the latter was not illegally detained. In other words, the illegal detention was not a necessary means to the commission of the crime of rape.chanrobles virtual lawlibrary

WHEREFORE, the judgment appealed from is AFFIRMED with modification that the indemnity is increased from P10,000.00 to P15,000.00.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Plana, Gutierrez, Jr., De la Fuente, JJ., concur.

Some years back, Petitioner, a policeman of Malilipot, Albay, was suspended by respondent Mayor Marciano Bitara because of four criminal cases filed against him in the Municipal Court of Tabaco, Albay, to wit: assault upon an agent (another policeman) of a person in authority with homicide; less serious physical injuries thru reckless imprudence; illegal possession of firearm; and alarm and scandal.

Before the cases could be tried on the merits, the prosecution moved for their provisional dismissal on account of the desistance of the offended parties who had been paid by petitioner. The motion was granted by the court. Petitioner later sought a modification of the provisional dismissal to an absolute dismissal, which was also granted by the court.

Petitioner then filed with the Civil Service Commission a petition for reinstatement and payment of the salaries he failed to receive during his suspension, invoking the second paragraph of Section 16, Republic Act No. 4864, otherwise known as the Police Act of 1966, which provides:jgc:chanrobles.com.ph

"When a member of the police force or agency is accused in court of any felony or violation of law . . ., the city mayor or municipal mayor concerned, shall immediately suspend the accused from office pending the final decision by the court, and in case of acquittal, the accused shall be entitled to immediate reinstatement and the payment of the entire salary he failed to receive during his suspension . . ." (Emphasis supplied.)

The Civil Service Commission referred the matter to the Malilipot Mayor, who replied with a firm expression of his refusal to reinstate petitioner for the reason that there was actually no acquittal which could be the basis of petitioner’s reinstatement with back salaries While the matter was pending in the Commission, petitioner filed an action for mandamus in the Court of First Instance of Albay to compel reinstatement and payment of back salaries. The court dismissed the action. Hence this petition seeking reversal of the said decision.

The petition has no merit. The law predicates reinstatement with entitlement to back salaries on "acquittal." The dismissal of the criminal cases filed against petitioner after he had paid the offended parties, without trial on the merits, was not an acquittal.

"It is obvious that when the statute speaks of the suspended officer being ‘acquitted’ it means that after due hearing and consideration of the evidence against him the court is of the opinion that his guilt has not been proved beyond reasonable doubt. Dismissal of the case against the suspended officer will not suffice because dismissal does not amount to acquittal. As aptly stated in People v. Salico, 84 Phil. 722, 732-733 [1949]:chanrob1es virtual 1aw library

‘Acquittal is always based on the merits, that is, the defendant is acquitted because the evidence does not show that defendant’s guilt is beyond a reasonable doubt; but dismissal does not decide the case on the merits or that the defendant is not guilty. Dismissal terminates the proceeding, either because the court is not a court of competent jurisdiction or the evidence does not show that the offense was committed within the territorial jurisdiction of the court, or the complaint or information is not valid or sufficient in form and substance, etc. The only case in which the word dismissal is commonly but not correctly used, instead of the proper term acquittal, is when, after the prosecution has presented all its evidence, the defendant moves for the dismissal and the court dismisses the case on the ground that the evidence fails to show beyond a reasonable doubt that the defendant is guilty; for in such case the dismissal is in reality an acquittal because the case is decided on the merits. If the prosecution fails to prove that the offense was committed within the territorial jurisdiction of the court and the case is dismissed, the dismissal is not an acquittal, inasmuch as if it were so the defendant could not be again prosecuted before the court of competent jurisdiction; and it is elemental that in such case the defendant may again be prosecuted for the same offense before a court of competent jurisdiction.’" (Malanyaon v. Lising, 106 SCRA 237 at 239.)

It is also noted that as regards the charge of assault upon an agent of a person in authority with homicide, the case was before the municipal court only for preliminary investigation. Certainly, the petitioner could not have been acquitted therein.

Apart from the foregoing, petitioner has failed to exhaust administrative remedies before seeking judicial relief. When he filed with the court a quo the case subject of the instant petition, his petition for reinstatement was pending in Civil Service Commission, as it still is.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

WHEREFORE, the petition is dismissed.

SO ORDERED.

Teehankee (Chairman), Melencio-Herrera, Relova, Gutierrez, Jr., and De la Fuente, JJ., concur.

Direct appeal by City Fiscal Quirico A. Abela, of Roxas City, from a decision dated August 27, 1970 of then Court of First Instance Judge Cesario C: Golez, compelling him to "file the proper action for estafa arising from the bouncing check Exhibit B. Without pronouncement as to costs." (p. 41, Rollo)

On December 28, 1968, private respondent Agustin Almalbis filed with the Office of the City Fiscal of Roxas City a complaint for estafa against one Virginia Anisco. After conducting a preliminary investigation, herein petitioner Quirico A. Abela dismissed the complaint "for lack of merit." Thereafter, private respondent Almalbis commenced the action for mandamus in the Court of First Instance of Roxas City against herein petitioner Quirico A. Abela. In due course said court rendered the above-mentioned decision. Hence, this appeal.

The findings of the petitioner are contained in his Order, from which we quote:jgc:chanrobles.com.ph

"It appeared from the testimony of the complainant, that sometime in 1967, the complainant entered into a business arrangement with the respondent, Virginia P. Anisco. The former, who is both owner and operator of several fishing boats and fishponds, sends fish by the tons to the respondent to be sold at the Manila Divisoria Market. From the proceeds of such sales, which were entirely supervised and controlled by the respondent, respondent got four per cent (4%) commission from the gross proceeds plus whatever expenses she has advanced as expenses in the process. Respondent in turn has the obligation to remit the balance of the proceeds to the complainant.

"This business arrangement had continued for sometime at a more or less irregular interval of two weeks to the satisfaction of both parties, until the respondent later became late and irregular in her remittances of the balance of the proceeds due the complainant.

"Remittances of the net proceeds were mostly done by respondent by sending her personal checks and later, when respondent had been late in her remittances, complainant proposed that respondent give him a check book, each and every check of which is presigned in blank. The blanks corresponding to the amount and the payee to be filled in later by the complainant as the value of the shipment is determined after each sale. This was done and the business again continued under the above arrangement. Then Checks Nos. 378389 dated September 16, 1968, 392377 dated October 20, 1968, 392379 dated October 29, 1968, 392380 dated October 30, 1968, and 392381 dated October 30, 1968 drawn on the Prudential Bank and Trust Company of Manila as prepared and filled in by the complainant were all dishonored for lack of funds, when presented for payments by the complainant through the Roxas City Branch of the Philippine National Bank.

"The foregoing is the summary of the testimony of complainant. Agustin Almalbis, and with the submission of his aforementioned exhibits, rested his case.

"Respondent failed to appear on the dates scheduled for her turn and was considered to have waived her rights to present evidence in her defense.

"THE ISSUE

"The question is, has the respondent committed Estafa by giving, presigned blank checks to the complainant which were later dishonored by the bank for lack of funds, as defined under Art. 315 paragraph 2-d of the Revised Penal Code.



"There is a deceit when one is misled, either by guile or trickery or by other means, to believe to be true what is really false.

"When, therefore, the parties agreed to the arrangement, that the respondent give a check book, all the individual checks contained therein already signed by the respondent as drawer in blank, leaving the complainant to fill in the payee and the amount to be drawn later after the amount is determined after the sale of each shipment of fish consigned to the respondent, such arrangement can only be considered as an agreement for business convenience between those concerned and no more.

"Certainly, deceit can not be attributed to the respondent if the checks from the aforesaid check book under the control of the complainant, prepared and filled in by him as to the date, the payee and amount, turned out to be dishonored as it did due to lack of funds for the simple reason, that except for presigning the checks the respondent had no hand in the preparation of the same thereby giving her no chance to determine the sufficiency of her original bank deposit or the necessary amount for replenishment of such deposit.



"Considering, further, the element mentioned herein-before, that the check dishonored must have been issued in payment of an obligation contracted at the same time without which the transaction would not have been consummated as held in the case of People v. Obieta Et. Al. (CA-52 O.G. 065224), the inapplicability of the penal provision relied upon by the complainant becomes glaringly clear.

"That act of the respondent in signing the checks in blank, delivering the same to the complainant to be filled in later by the latter as to the date indicating the date of the issuance, the name of the payee and the amount to be drawn, in payment for the costs of future shipments of fish to be sold at the Manila Market, can never be interpreted or considered as checks issued in the payment of an obligation contracted at the same time even by the wildest stretch of imagination. The law contemplates, as ruled in the case of People v. Obieta aforecited, of one uninterrupted transaction. The consummation of the transaction and the issuance must be concurrent." (pp. 17, 20, 21, 22, Rollo)

The Honorable Judge Golez overruled petitioner, saying:jgc:chanrobles.com.ph

"The first check so issued is PBTC (Prudential Bank and Trust Company) Check AD No. 378389, dated September 16, 1968, payable to the order of Mr. Agustin Almalbis in the amount of P6,000.00 and signed by Virginia P. Anisco (Exhibit B).

"The second check issued was PBTC Check AD No. 392377, dated October 20, 1968, payable to the order of Cash in the amount of P3,637.05 and signed by Virginia P. Anisco. (Exhibit C).

"The third check issued was PBTC Check No. 392379, dated October 29, 1968, payable to the order of Agustin Almalbis in the amount of P3,426.85 and signed by Virginia P. Anisco. (Exhibit D).

"The fourth and fifth checks issued were PBTC Check AD No. 392381, and PBTC Check AD No. 392380, both dated October 30, 1968, in the amount of P1,360.50 and P3,000.00, respectively, both payable to Cash, both signed by Virginia P. Anisco. (Exhibits E and F).

"It also appears that Virginia P. Anisco, the respondent mentioned in the aforementioned letter-complaint Exhibit A, was handling the sales of the fish which the petitioner in Roxas City was shipping from time to time to Manila where the said fish was sold by Virginia P. Anisco in the Divisoria Market for which service Anisco was paid by Almalbis a commission of 4% on the gross proceeds of the sales.

"According to Almalbis it was their agreement that Anisco would remit to him here in Roxas City the net proceeds of the sales of fish made by Anisco in Manila after deducting her commission and other incidental expenses therefrom.

"The five checks Exhibits B, C, D, E and F adverted to elsewhere above represented the net proceeds realized from the sales made by Virginia P. Anisco of the fish of Agustin Almalbis.

"The petitioner Agustin Almalbis further narrated that the PBTC Check AD No. 378389, dated September 16, 1968 (Exhibit B), was hand-carried by Amador Anisco, from Manila to Roxas City where Amador delivered the said check Exhibit B to the said petitioner. Then Almalbis indorsed the check Exhibit B to the Philippine National Bank, Roxas City Branch, where it was accepted for deposit only. Later on the check Exhibit E was returned to Almalbis, dishonored by the Prudential Bank and Trust Company against which it had been drawn, for lack of funds. When the check Exhibit B had found its way back to Almalbis, the latter left for Manila to inquire from Virginia why the said check bounced back. Virginia begged of him to give her a little more time to get sufficient funds for the said check Exhibit B. But the funds never came.

"Meanwhile, and upon the plea of Virginia, the petitioner continued to make shipments of fish to her, and as part of this new understanding, Virginia agreed to sign, as she signed, checks in blank which she delivered to petitioner who was to fill the blanks therein with the amount and date corresponding to the sales of fish made by Virginia and reported by her by telegram to said petitioner. By virtue of this arrangement the checks Exhibits C, D, E and F were made out by Almalbis himself by filling up the pre-signed blank checks provided him by Virginia. But the said checks Exhibits C, D, E and F also bounced back for lack of funds or for the reason of "Exceeds Arrangements" (Exhibit D-5 and E-5).

"Almalbis declared that he placed all of the foregoing facts at the disposal of the respondent City Fiscal Quirico Abela who conducted the preliminary investigation on his within mentioned letter-complaint of 26th December 1968.



"The instant petition is also a two-fold action, firstly, for certiorari upon the ground that the respondent Fiscal gravely abused his discretion in dismissing the within mentioned complaint with the result that the petitioner herein has been deprived of his right as the aggrieved party in a criminal transaction — and, secondly, for mandamus to compel the said respondent to bring the corresponding criminal action. The second phase of the action, i.e., mandamus, depends entirely upon the success or failure of the first phase of the action, i.e., certiorari, in the sense that should it be found that the respondent herein did gravely abuse his discretion in dismissing petitioner’s complaint mandamus would lie to rectify his error. (Bonilla, Et Al., v. Sec. of Agriculture & Natural Resources, L-20083, April 27, 1967).

"In the given state of facts such as spelled out elsewhere above the right of the petitioner, with specific reference to the check Exhibit B, cannot be said to be dubious, uncertain or nebulous, but in fact well-defined, clear and certain, not at all found within the sphere of speculation or probability, but is firmly secured within the realm of certainty, and this condition should entitle the petitioner herein to a relief for official inaction obtainable through the extraordinary remedy of mandamus. (See the following cases: Aquino v. General Manager, GSIS, L-24859, Jan. 31, 1968; Aprueba, Et. Al. v. Ganzon, Et Al., L-20867, Sept. 3, 1966; Kwok Kam lien v. Vivo, L-22354, Mar. 31, 1965; Alzate v. Aldana, L-18085, May 1963; Villamor, Et. Al. v. Lacson, Et Al., L-15945, Nov. 28, 1964; People v. Orais, 65 Phil. 744, 747.)

"While as already shown the discretion of the court will not ordinarily be controlled by mandamus, it is not universally true that the writ will not issue to control such discretion or to require a judicial tribunal to act in a particular way. Where the discretion of the court can be legally exercised in only one way, mandamus will lie to compel the court to exercise it; and in some cases has been employed to correct the errors of inferior tribunals and to prevent a failure of justice or irreparable injury where there is a clear right, and there is an absence of any adequate remedy, as for instance where no appeal lies, or where the remedy by appeal is inadequate. It may also be employed to prevent an abuse of discretion or to correct an arbitrary action which does not amount to the exercise of discretion.’" (Corpus Juris, sec. 85, pp. 608-609, as quoted in People v. Orais, supra.)

"So that where the fiscal filed an information for homicide over the insistence of the aggrieved party that the crime committed was murder as shown by the declaration of witnesses disclosing the presence of qualifying circumstances the Supreme Court ruled that his failure to file the proper information rendered the Fiscal subject to the writ of mandamus. (Bernabe v. Bolinas, Et Al., L-22000, Nov. 29, 1966.)" (pp. 33, 35, 39, 41, Rollo)

There is merit in the appeal. The public prosecutor is entitled to use his judgment and discretion in the appreciation of evidence presented to him and, in the exercise thereof, he may not be controlled by mandamus. Whether an information should be filed in court is a matter addressed to the sound discretion of the fiscal according to whether the evidence is in his opinion sufficient to establish the guilt of the accused beyond a reasonable doubt.

Otherwise stated, the fiscal can not be compelled to act in a distinct manner whether to prosecute or not to prosecute and, instead, is allowed to stand on his opinion and conviction, "reserving only to the Secretary, in any appropriate case when the latter believes public interest impels that a different course of action should be taken, to temporarily relieve the fiscal of the duty to act by designating somebody else to take his place solely and only for the purpose of such particular case . . . Under Sections 1679 and 1689 of the Revised Administrative Code, in any instance where a provincial or city fiscal fails, refuses or is unable, for any reason, to investigate or prosecute a case and, in the opinion of the Secretary of Justice it is advisable in the public interest to take a different course of action, the Secretary may either appoint as acting provincial or city fiscal, to handle the investigation or prosecution exclusively and only for such case, any practicing attorney or some competent officer of the Department of Justice or office of any city or provincial fiscal, with complete authority to act therein in all respects as if he were the provincial or city fiscal himself, or appoint any lawyer in the government service or not in the government service, temporarily to assist such city or provincial fiscal in the discharge of his duties, with the same complete authority to act independently of and for such city or provincial fiscal, provided that no such appointment may be made without first hearing the fiscal concerned and never after the corresponding information has already been filed with the court by the corresponding city or provincial fiscal without the conformity of the latter, except when it can be patently shown to the court having cognizance of the case that said fiscal is intent on prejudicing the interest of justice. The same sphere of authority is true with the prosecutor directed and authorized under Section 3 of Republic Act 3783, as amended and/or inserted by Republic Act 5184." (Estrella v. Orendain, Jr., 37 SCRA 640)chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

However, the matter of instituting an information should be distinguished from a motion by the fiscal for the dismissal of a case already filed in court. The judge may properly deny the motion where, judging from the record of the preliminary investigation, there appears to be sufficient evidence to sustain the prosecution. This is, as it should be, because the case is already in court and, therefore, within its discretion and control.

But then, the question may be asked: What are the remedies of the offended party or complainant when the prosecuting officer refuses or fails to file an information or to prosecute the criminal action? As stated above," [i]n case the provincial fiscal should fail or refuse to act even when there is sufficient evidence on which action may be taken, the offended party may take up the matter with the Secretary of Justice who may then take such measures as may be necessary in the interest of justice under Section 1679 of the Revised Administrative Code. (Pañgan v. Pasicolan, 103 Phil. 1143)." He may also file with the proper authorities or courts criminal and administrative charges against the prosecuting officer. As held in Bagatua v. Revilla, 104 Phil. 393," [w]hile it is the duty of the fiscal or the City Attorney, as prosecuting officer, to prosecute persons who, according to the evidence received from the complainant; are shown to be guilty of a crime, said officer is likewise bound by his oath of office to protect innocent persons from groundless, false or malicious prosecution. The prosecuting officer would be committing a serious dereliction of duty if he files the information based upon a complaint, where he is not convinced that the sufficiency and strength of the evidence would warrant the filing of the action in court against the accused. This duty of the prosecuting officer involves discretion, hence, it cannot be controlled by mandamus unless there has been a grave abuse thereof which is not shown in the case at bar." Or, he may file a civil action for damages under Article 27 of the New Civil Code.cralawnad

WHEREFORE, the decision, dated August 27, 1970, of respondent judge is hereby SET ASIDE.

SO ORDERED.

Concepcion, Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana, Gutierrez, Jr., De la Fuente and Cuevas, JJ., concur.

Fernando, C.J., and Escolin, J., took no part.

Teehankee, J., I reserve my vote.

Makasiar, J., concurs in the result.



AQUINO, J., concurring:chanrob1es virtual 1aw library

I concur. As a general rule, mandamus does not lie to compel the fiscal to file an information because that duty involves the exercise of discretion and judgment. It is not ministerial (Gonzales v. Serrano, L-25791, September 23, 1968, 25 SCRA 64; Vda. de Bagatua v. Revilla, 104 Phil. 392; Gonzales v. Court of First Instance of Bulacan, 63 Phil. 846; People v. Natoza, 100 Phil. 533, 536; Alberto v. De la Cruz, L-31839, June 30, 1980, 98 SCRA 406; Aquino v. Mariano, L-30485, May 31, 1984).

It is not fair to compel the fiscal to prosecute a person whose guilt may not, in his opinion, be established with the evidence submitted to him (People v. Santos, L-25413, October 31, 1969, 30 SCRA 100).

But if the fiscal acts with grave abuse of discretion in not prosecuting the accused, he may be compelled by mandamus to file the proper information.chanrobles virtual lawlibrary

For example, it is grave abuse of discretion on the fiscal’s part to file an information for homicide only when the evidence presented before him warrants the filing of a murder charge because the killing was treacherous. He may be compelled by mandamus to file a charge for murder (Bernabe v. Bolinas, Jr., L-22000, November 29, 1966, 18 SCRA 812).

Against the unjust action or inaction of a fiscal, the remedy is an appeal to the Minister of Justice who has control of fiscals, or to file an administrative charge against him. (Presidential Decree No. 1275, Reorganizing the Prosecution Staff; Circular No. 36 dated July 1, 1980, Ministry of Justice; Estrella v. Orendain, Jr., L-19611, February 27, 1971, 37 SCRA 640; Noblejas v. Salas, L-31788, September 15, 1975, 67 SCRA 47; Caeg v. Abad Santos, L-40044, March 10, 1975, 63 SCRA 96; Pañgan v. Pasicolan, 103 Phil. 1143 unpublished.)

This Petition for Review on Certiorari, treated as a special civil action. 1 prays that the judgment rendered by the then Court of Appeals in the consolidated cases, CA-G.R. No. 34998-R entitled "Macaria A. Torres, plaintiff-appellee v. Vicente Santillan, Et Al., defendants-appellants", and CA-G.R. No. 34999-R entitled "Vicente Santillan, Et Al., plaintiffs-appellants v. Macaria A. Bautista, Et Al., defendants-appellees", and the Resolution denying the Motion for Reconsideration and Petition for New Trial, be set aside; and that, instead, the Order of the Court of First Instance of August 7, 1963 be affirmed, or, in the alternative, that the case be remanded to it for new trial.

Involved in this controversy are the respective claims of petitioner and private respondents over Lot No. 551 of the Sta. Cruz de Malabon Estate (part of the friar lands) in Tanza, Cavite, with an area of approximately 1,622 square meters, covered by Transfer Certificate of Title No. T-6804 issued in the name of the legal heirs of Margarita Torres.

The facts of the case cover three generations. The propositus, Margarita Torres, during the Spanish regime, was married to Claro Santillan. Vicente and Antonina were begotten of this union. Claro died leaving Margarita a widow. Antonina married and had six children, namely: Alfredo, Salud (married to Baldomero Buenaventura), Demetria (married to Leonardo Quinto), Adelina (married to Cesario Punzalan), Tomas and Amado all surnamed Narciso, who, together with Vicente Santillan, are the private respondents. Antonina died before the institution of the cases, while Vicente died on June 4, 1957, 2 during the pendency of the cases in the Trial Courts, without progeny.

After the death of her husband, Margarita Torres cohabited with Leon Arvisu Arbole, without benefit of marriage. Out of their cohabitation, petitioner Macaria Torres (later married to Francisco Bautista) was born on June 20, 1898, and baptized on June 26, 1898. In a Certificate of Baptism issued by the Parish Priest of Tanza, Cavite, Leon Arvisu (Arbole) and Margarita Torres were named as father and mother of petitioner, whose name was listed as "Macaria Arvisu." (Exhibit "C"). Another Baptismal Certificate, however, listed her name as Macaria Torres, while her father’s name was left blank (Exhibit "4"). Subsequently, or on June 7, 1909, Leon Arbole and Margarita Torres were married (Exhibit "A"). Petitioner lived with and was reared by her parents. Margarita, the mother, died on December 20, 1931 (Exhibit "D"), while Leon, the father, passed away on September 14, 1933 (Exhibit "E").

Lot No. 551, an urban lot with an area of 1,622 sq. ms., more or less, had been leased temporarily by the Government (Lease No. 17) to Margarita Torres who was the actual occupant of the lot. The date of the lease cannot be determined with exactitude from the records. On December 13, 1910, the Government, through the Director of Lands, issued to Margarita Torres, Sale Certificate No. 222 (Exhibit "B") over the said lot at the price of P428.80, payable in 20 annual installments of P20.00 each. The rental/s previously paid of P17.40 was credited to the purchase price. Testimonial evidence is to the effect that Leon Arbole paid the installments out of his earnings as a water tender at the Bureau of Lands, Tanza, Cavite. The last installment, however, was paid on December 17, 1936, or three (3) years after his death.chanrobles.com : virtual law library

On August 25, 1933, twenty (20) days before his death, Leon Arbole sold and transferred in a notarial deed all his rights and interest to the one-half (1/2) portion of Lot No. 551 in favor of petitioner, for the sum of P300.00. 3

On June 6, 1953, Vicente Santillan executed an Affidavit claiming possession of Lot No. 551 and asking for the issuance of title in his name, which he filed with the Bureau of Lands. Based thereon, the Bureau of Lands issued the corresponding patent in the name of the legal heirs of Margarita Torres. Transfer Certificate of Title No. T-6804 was eventually issued by the Register of Deeds of Cavite on November 7, 1957, also in the name of said heirs.

On June 3, 1954, private respondents filed a complaint against petitioner for Forcible Entry, with the Justice of the Peace Court of Tanza, Cavite, alleging that petitioner had entered a portion of Lot No. 551 without their consent, constructed a house, and refused to vacate upon demand. For her part, petitioner claimed that she is a co-owner of the lot in question, being one of the daughters of Margarita Torres. The ejectment case was decided against petitioner and the latter appealed to the then Court of First Instance of Cavite, where it was docketed as Civil Case No. 5547 (Ejectment Case).

On June 8, 1954, petitioner instituted an action for partition of Lot No. 551 before the then Court of First Instance of Cavite, docketed as Civil Case No. 5505 (Partition Case), alleging that said lot was conjugal property of the spouses Margarita Torres and Leon Arbole, and that she is their legitimated child. Private respondents filed an Answer alleging that the lot belonged exclusively to Margarita Torres; that they are her only heirs, and that the complaint for partition should be dismissed.

The Ejectment Case and the Partition Case were jointly tried and decided on November 20, 1958 with a finding that Lot No. 551 is the paraphernal property of Margarita Torres, and adjudicating to private respondents two-thirds (2/3) of the property in equal shares, and to petitioner a one-third (1/3) portion. 4 Petitioner moved for reconsideration, which private respondents opposed. Pending its resolution, the Provincial Capitol of Cavite was burned, resulting in the complete destruction of the records of the two cases, which, however, were later partially reconstituted.

On August 7, 1963, the then Court of First Instance of Cavite, Branch I, issued an Order granting reconsideration and amending the Decision of November 20, 1958. The dispositive portion thereof reads as follows:cralawnad

"Wherefore, judgment is hereby rendered in Civil Case No. 5505:chanrob1es virtual 1aw library

(1) Declaring Macaria A. Torres as the legitimated child of the spouses Leon Arbole and Margarita Torres;

(2) Declaring that Lot No. 551 of the Sta. Cruz de Malabon Estate is a conjugal partnership property of the spouses Leon Arbole and Margarita Torres;

(3) Adjudicating four-sixths (4/6th of Lot No. 551 of S.C. de Malabon Estate to Macaria Torres, and two-sixths (2/6th) in equal shares to Alfredo, Tomas, Amado, Salud, Demetria and Adelina, all surnamed Narciso, legitimate children and heirs of the deceased Antonina Santillan, since Vicente Santillan is already dead. The parties may make the partition among themselves by proper instruments of conveyance, subject to confirmation by the Court. In fairness, however, to the parties, each party should be alloted that portion of the lot where his or her house has been constructed, as far as this is possible. In case the parties are unable to agree upon the partition, the Court shall appoint three commissioners to make the partition.

As to Civil Case No. 5547, the same is hereby dismissed.

Without costs in both cases." 5

In concluding that petitioner is a legitimated child, the Trial Court opined:jgc:chanrobles.com.ph

"It is undisputed that when Macaria A. Torres was born on June 20, 1898, her parents, Leon Arbole and Margarita Torres, had the capacity to marry each other. There was no legal impediment for them to marry. It has also been established that Macaria A. Torres had been taken care of, brought up and reared by her parents until they died. The certificate of baptism (Exh.’G’) also shows that Macaria Torres was given the family name of Arvisu, which is also the family name of her father, Leon Arbole, and that her father is Leon Arvisu and her mother is Margarita Torres. Such being the case, Macaria A. Torres possessed the status of an acknowledged natural child. And when her parents were married on June 7, 1909, she became the legitimated daughter of Leon Arbole and Margarita Torres." 6

Private respondents appealed. On April 2, 1973, the then Court of Appeals 7 rendered the judgment sought to be set aside herein, the decretal part of which states:jgc:chanrobles.com.ph

"Wherefore, judgment is hereby rendered in Civil Case No. 5505:chanrob1es virtual 1aw library

(1) Declaring that Macaria A. Torres is not the legitimated child of the spouses Leon Arbole and Margarita Torres;

(2) Declaring that Lot No. 551 of the Sta. Cruz de Malabon Estate is a conjugal partnership property of the spouses Leon Arbole and Margarita Torres; and

(3) Adjudicating one-half (1/2) of Lot No. 551 of S.C. de Malabon Estate to Macaria Torres, and the other half (1/2) in equal shares to Alfredo. Tomas, Amado, Salud, Demetria and Adelina, all surnamed Narciso, legitimate children and heirs of Antonina Santillan, since Vicente Santillan is already dead. The parties may make the partition among themselves by proper instruments of conveyance, subject to confirmation by the Court. In fairness, however, to the parties, each party should be alloted that portion of the lot where his or her house has been constructed, as far as this is possible. In case the parties are unable to agree upon the partition, the Court shall appoint three commissioners to make the partition.

As to Civil Case No. 5547, the same is hereby dismissed.

Without costs in both cases." 8

The Appellate Court was of the opinion that:jgc:chanrobles.com.ph

"Macaria A. Torres is not a legitimated daughter of Leon Arvisu Arbole and Margarita Torres, the former not having been legally acknowledged before or after the marriage of her parents. As correctly pointed out by the appellants in their brief, the fact that she was taken cared of, brought up and reared by her parents until they died, and that the certificate of baptism (Exhibit ‘C’) shows that she was given the family name of Arvisu did not bestow upon her the status of an acknowledged natural child.

"Under Article 121 of the old Civil Code, the governing law on the matter, children shall be considered legitimated by subsequent marriage only when they have been acknowledged by the parents before or after the celebration thereof, and Article 131 of the same code provides that the acknowledgment of a natural child must be in the record of birth, in a will or in some public document. Article 131 then prescribed the form in which the acknowledgment of a natural child should be made. The certificate of baptism of Macaria A. Torres (Exhibit ‘C’) is not the record of birth referred to in Article 131. This article of the old Civil Code ‘requires that unless the acknowledgment is made in a will or other public document, it must be made in the record of birth, or in other words, in the civil register’ (Samson v. Corrales Tan, 48 Phil. 405)." 9

A Motion for Reconsideration and for New Trial, dated April 16, 1973, was filed by petitioner. In support thereof, petitioner submitted a typewritten Sworn Statement, dated March 5, 1930 of spouses Leon Arvisu (Arbole) and Margarita Torres, 10 reading in full as follows:jgc:chanrobles.com.ph

"SWORN STATEMENT

"We, Leon Arvisu and Margarita Torres husband and wife respectively, of majority age, and residents of the Municipality of Tanza, Province of Cavite, P.I., after being duly sworn to according to law depose and say.

"That Macaria de Torres is our legitimized daughter she being born out of wedlock on the 26th of June 1898 at Tanza, Cavite, but as stated she was legitimized by our subsequent marriage.

"That at the time of her birth or conception, we, her parents could have married without dispensation had we desired.

"That as natural child our aforesaid daughter was surnamed de Torres after that of her mother’s at the time she was baptized as per record on file in the Church.

"That as a legitimized daughter she should now be surnamed Arvisu after her father’s family name.

"Wherefore, it is respectfully requested to anybody concerned that proper remedy be made for the change of the surname of said Macaria de Torres as desired.

"In testimony hereof, we hereunto signed out names at Tanza, Cavite, this 5th day of March 1930.

(Thumbmarked) (Thumbmarked)

LEON ARVISU MARGARITA TORRES

Signed in the presence of:chanrob1es virtual 1aw library

(Sgd.) Illegible (Sgd.) Macaria de Bautista



"UNITED STATES OF AMERICA)

PHILIPPINE ISLANDS)

MUNICIPALITY OF TANZA)ss

PROVINCE OF CAVITE)

"Subscribed and sworn to before me this 5th day of March 1930. The affiant Leon Arvisu exhibited to me no cedula certificate being exempt on account of going over 60 years of age and Margarita Torres having exhibited no cedula certificate being exempt on account of her sex.

"Witness my hand and seal of office on the date and place aforesaid.

CONSTANCIO T. VELASCO

Notary Public, Cavite Province

Until Dec. 31, 1930.

Not. Reg. No. 56

Page No. 2

Book No. III Series of 1930." 11

The reason given for the non-production of the notarial document during trial was that the same was only found by petitioner’s daughter, Nemensia A. Bautista, among the personal belongings of private respondent, Vicente Santillan, an adverse party, after his death and who may have attempted to suppress it. Private respondents, for their part, argued against new trial, and contended that it is not newly discovered evidence which could not have been produced during the trial by the exercise of due diligence.

The Decision of the Appellate Court was rendered by a Division of three, composed of Justices Jesus Y. Perez, Jose N. Leuterio and Luis B. Reyes, ponente. When the Motion for Reconsideration and New Trial was considered, there was disagreement, possibly as to whether or not new trial should be granted in respect of the sworn statement of March 5, 1930. A Special Division of five was then formed, composed of Justices Antonio Lucero, Magno S. Gatmaitan, Lourdes P. San Diego, Jose N. Leuterio and Luis B. Reyes (Justice Perez having retired or having disqualified himself). In a minute resolution of August 24, 1973, the Division of five, by a vote of three or two, denied both reconsideration and new trial.

To warrant review, petitioner has summarized her submission based on two assignments of error. The first was expressed as follows:jgc:chanrobles.com.ph

"Although the Court of Appeals is correct in declaring that Macaria A. Torres is not the legitimated child of the spouses Leon Arbole and Margarita Torres, it has overlooked to include in its findings of facts the admission made by Vicente Santillan and the heirs of Antonina Santillan (herein respondents) that Macaria A. Torres and Vicente Santillan and Antonina Santillan are brother and sisters with a common mother Margarita Torres and they are the legal heirs and nearest of relatives of Margarita Torres, and as a consequence thereof, the Court of Appeals had drawn an incorrect conclusion in adjudicating the entire share of Margarita Torres in the conjugal property solely to Vicente Santillan and the heirs of Antonina Santillan." (Emphasis ours)

As we understand it, petitioner has conceded. with which we concur, that, without taking account of the sworn statement of March 5, 1930, she cannot be considered a legitimated child of her parents. Continuous possession of the status of a natural child, fact of delivery by the mother, etc. will not amount to automatic recognition, but an action for compulsory recognition is still necessary, which action may be commenced only during the lifetime of the putative parents, subject to certain exceptions. 12

The admission adverted to appears in paragraph 3 of private respondents’ original complaint in the Ejectment Case reading:jgc:chanrobles.com.ph

"the plaintiffs and the defendant Macaria A. Bautista are the legal heirs and nearest of kins of Margarita Torres, who died in Tanza, Cavite on December 20, 1931." (Emphasis supplied).

The statement, according to petitioner, is an admission of her legitimation and is controlling in the determination of her participation in the disputed property.

We are not persuaded. In the Amended Complaint filed by private respondents in the same Ejectment Case, the underlined portion was deleted so that the statement simply read:jgc:chanrobles.com.ph

"That the plaintiffs are the legal heirs and nearest of kin of Margarita Torres, who died at Tanza, Cavite, on December 20, 1931."cralaw virtua1aw library

In virtue thereof, the Amended Complaint takes the place of the original. The latter is regarded as abandoned and ceases to perform any further function as a pleading. The original complaint no longer forms part of the record. 13

If petitioner had desired to utilize the original complaint she should have offered it in evidence. Having been amended, the original complaint lost its character as a judicial admission, which would have required no proof, and became merely an extrajudicial admission, the admissibility of which, as evidence, required its formal offer. Contrary to petitioner’s submission, therefore, there can be no estoppel by extrajudicial admission made in the original complaint, for failure to offer it in evidence. 14

It should also be noted that in the Partition Case private respondents, in their Answer (parag. 4), denied the legitimacy of petitioner.

The second error attributed to the Appellate Court has been pleaded as follows:jgc:chanrobles.com.ph

"Also, the Court of Appeals has gravely abused its discretion when it denied the petition for new trial, knowing as it does that the judgment is clearly erroneous in view of the evidence which is offered and no amount of diligence on the part of the petitioner could it be produced in court at any time before it was offered as it was found from the personal belongings of Vicente Santillan, an adverse party, after his death."cralaw virtua1aw library

It is our considered opinion that new trial was warranted to prevent a possible miscarriage of justice. Assuming that the genuineness and due execution of the Sworn Statement of March 5, 1930 is established in accordance with procedural due process, a new trial would resolve such vital considerations as (1) whether or not said Sworn Statement qualifies as the public document prescribed in Article 131 of the old Civil Code; 15 (2) whether or not it conforms to an act of acknowledgment by the parents after the celebration of their marriage as required by Article 121 of the same code; 16 and (3) whether or not petitioner’s signature as a witness to said document was the equivalent of the consent necessary for acknowledgment of an adult person under Article 133 of that Code. 17 Affirmative answers would confer upon petitioner the status of a legitimated child of her parents, and would entitle her to enjoy hereditary rights to her mother’s estate.

Private respondents stress that since petitioner signed as a witness to the document, she should be chargeable with knowledge of its existence, and, therefore, the Sworn Statement was not newly discovered evidence. In our view, the document can reasonably qualify as newly discovered evidence, which could not have been produced during the trial even with the exercise of due diligence; specially if it really had been in the possession of Vicente Santillan, an adverse party who, it was alleged, suppressed the document.

In the interest of judicial expediency, the new trial can be conducted by respondent Appellate Court, now empowered to do so under Section 9 of Batas Pambansa Blg. 129.chanrobles law library : red

WHEREFORE, this case is hereby remanded to the now Intermediate Appellate Court for new trial, and depending on its outcome, said Court shall also resolve the respective participation of the parties in the disputed property, inclusive of the estate of the deceased Vicente Santillan. No costs.

SO ORDERED.

Plana, Relova, Gutierrez, Jr. and De la Fuente, JJ., concur.

Separate Opinions

TEEHANKEE, J., concurring:chanrob1es virtual 1aw library

I concur with the judgment of the Court remanding the case to the Intermediate Appellate Court for new trial, specifically for the admission of newly discovered evidence consisting of the sworn statement of March 5, 1930, wherein petitioner Macaria A. Torres’ parents, Leon Arbole and Margarita Torres, expressly recognized Macaria as their "legitimized daughter" who was born out of wedlock to them (although neither of them was under any impediment to marry at the time of her conception), and was afterwards legitimated by their subsequent marriage. The admission of such sworn statement, as stated in the Court’s decision penned by Madame Justice Herrera, would prevent a possible miscarriage of justice and upon the establishment of vital considerations therein stated, would establish Macaria’s status as a legitimated child, which would entitle her to enjoy hereditary rights to her mother’s estate (one-half [1/2] of the property in question, Lot 551 of the Sta. Cruz de Malabon estate), as awarded by the trial court, but reversed by the appellate court’s split 3 to 2 decision.chanrobles.com.ph : virtual law library

I write this brief concurrence just to underscore the following:chanrob1es virtual 1aw library

1. Both the trial and appellate courts are in agreement that the property in question is conjugal partnership property of the spouses Leon Arbole and Margarita Torres. Both of them are likewise in agreement that Macaria is entitled to one-half (1/2) of the said property corresponding to her father Leon Arbole by virtue of her being the sole child and heir of the said Leon Arbole (not to mention that he had during his lifetime transferred the same to her in full ownership).

What is remanded to the appellate court for resolution is the claim of Macaria that as a legitimated child, she is entitled to an additional one-third (1/3) share in the other half of the disputed property corresponding to her mother Margarita Torres or an additional one-sixth (1/6) of the entire property with the remaining two-sixths (2/6) share corresponding of the heirs, namely, Vicente and Antonina, both surnamed Santillan, who were born of Margarita Torres’ first marriage with Claro Santillan. Thus, the trial court adjudicated four-sixths (4/6) of the entire property to Macaria and she asks for the reinstatement of such verdict of the trial court. On the other hand, the appellate court recognized only Macaria Torres’ right to one-half (1/2) or three-sixths (3/6) of the disputed property and gave her no share in the other one-half (1/2) or three-sixths (3/6) pertaining to the conjugal share of her mother Margarita.

2. I do not concur with the statement in the Court’s main opinion that the admission by respondents in their original complaint for ejectment against Macaria that they and Macaria are the legal heirs of their deceased common mother Margarita Torres can no longer be invoked by Macaria as a judicial admission against said respondents, simply because said respondents had thereafter filed an amended complaint deleting the admission. Such admission did not cease to be a judicial admission simply because respondents subsequently deleted the same in their amended complaint. The original complaint, although replaced by an amended complaint, does not cease to be a part of the judicial record, not having been expunged therefrom. The precedents cited for not considering this admission against respondents, since Macaria did not formally offer in evidence the original complaint, do not appear to be applicable and are based on pure technicality.

As far as Macaria’s mother Margarita Torres is concerned, there can be no denying their maternity and filiation. Macaria’s being a duly acknowledged natural child of Margarita is established in the record of birth, as well as by the very undisputed fact of Margarita having given birth to her. Macaria would, therefore, be entitled to the full enjoyment of the status of a legitimated child of Margarita by virtue of Margarita’s subsequent marriage with her father Leon Arbole.chanrobles.com.ph : virtual law library

The question of admissibility of the original complaint for ejectment as a judicial admission against respondents remains open, in my view, for proper determination and resolution by the appellate court with the remand of this case to it for further proceedings.

Endnotes:

---

1. p. 79, Rollo.

2. p. 77, ibid.

3. CA Decision, pp. 9 & 10, Rollo, pp. 33 & 34.

4. p. 68, Original Record.

5. pp. 123 & 124, ibid.

6. pp. 115 & 116, ibid.

7. Former Fifth Division composed of Justices Jesus Y. Perez, Jose N. Leuterio, and Luis B. Reyes (ponente).

8. p. 42, Rollo.

9. pp. 34 & 35, ibid.

10. Annex "A", Petition for New Trial.

11. p. 50, Rollo.

12. Articles 135, 136, and 137, Spanish Civil Code; Gitt v. Gitt, 68 Phil. 385, 390 (1939); Canales v. Arrogante, 91 Phil. 6 (1952).

13. Reynes v. Compania General de Tabacos, 21 Phil. 416 (1912).

14. Javellana v. D.O. Plaza Enterprises, Inc., 32 SCRA 261 (1970).

15. "ARTICLE 131. The acknowledgment of a natural child must be made in the record of birth, in a will, or in some other public document."cralaw virtua1aw library

16. "ARTICLE 121. Children shall be considered as legitimated by a subsequent marriage only when they have been acknowledged by the parents before or after the celebration thereof."cralaw virtua1aw library

17. "ARTICLE 133. An adult person may not be acknowledged as a natural child without his consent.

"The approval of the court, to be granted after hearing the prosecuting officer, shall be necessary to the acknowledgment of a minor, unless such acknowledgment be made in a certificate of birth or in a will.

"The minor may in any case contest the acknowledgment within the four years next following the attainment of his or her majority."

This is a petition to review the Order of the defunct Court of First Instance of Rizal in LRC Case No. C-1459. Carminia Siochi is the registered owner of a piece of land situated in Malabon, Rizal, covered by Transfer Certificate of Title No. 212043 of the Registry of Deeds for Rizal. The land was formerly a part of the Tambobong Estate which was acquired by the government in 1947 pursuant to Commonwealth Act No. 539. The law authorized the President of the Philippines to subdivide the estate into home lots "for resale at reasonable prices and under such conditions as he may fix." (Sec. 1.)Siochi’s transfer certificate of title contains the following restrictions:jgc:chanrobles.com.ph

"1. That it shall not be sold, assigned, encumbered, mortgaged or transferred within the period of five (5) years from the date hereof without first obtaining the written consent of the Secretary of Agriculture and Natural Resources;

"2. That except by hereditary succession, it shall not be conveyed, transferred or assigned in favor of any person who is not landless and disqualified to acquire or own land in the Philippines;

"3. That violation of either of the next two preceding paragraphs shall be sufficient ground for the Secretary of Agriculture and Natural Resources or his duly authorized representative to take such action as may be necessary for the reversion of the land to the government."cralaw virtua1aw library

In a petition dated November 13, 1973, Siochi asked the court a quo to cancel the restrictions "inasmuch as the period of five (5) years has already expired."cralaw virtua1aw library

The petition was partly opposed by the then Department of Agrarian Reform in representation of the Government of the Philippines; it did not object to the cancellation of restriction No. 1 "for the reason that the period of five (5) years therein stated had already prescribed; it however interposes vigorous opposition to the cancellation of conditions nos. 2 and 3. "The court a quo granted the petition; it ordered the cancellation of the restrictions annotated on TCT No. 212043. In granting the petition, the court said:chanrobles.com : virtual law library

"Upon a mature deliberation of the two (2) opposing contentions, the court is inclined to agree with the contentions of the petitioner that the annotations at the back of the title No. 212043 covering Lot No. 16, Block 5, be cancelled. To perpetuate the annotations of encumbrances at the back as the oppositor would like the Court to do would be in effect a restraint of ownership which is in violation of law, particularly Art. 428 of the Civil Code.

‘Art. 428. The owner has the right to enjoy and dispose of a thing without any other limitation than those established by law.’

"If the encumbrance at the back is allowed to be a perpetual provision for the owner to dispose such property, it will be in violation of said article. The Court holds that the limitation embodied in 1, 2 and 3 is only for a period of five (5) years and the five (5) years had elapsed since those encumbrances were annotated on January 10, 1968. The intention of law as envisioned in Commonwealth Act 539, could not have meant a perpetual limitation of right of ownership to a deserving awardee, because if that was the intention, the law would have clearly made it so." (Rollo, pp. 54-55.)

The oppositor has elevated the case to this Court for review in a petition for certiorari filed on August 14, 1974. To use a favorite expression of Chief Justice Enrique M. Fernando, the petition is highly impressed with merit because in a decision penned by Justice Juvenal K. Guerrero and promulgated as recently as August 17, 1981, in a case on all fours with this one, the Court held:chanrobles.com : virtual law library

"Conditions Nos. (2) and (3) are found or provided in Sections 17 and 18 of Land Registration Order No. R-3 under the subject ‘Rules and Regulations Governing the Acquisition and Disposition of Landed Estate,’ approved November 15, 1951 by the Secretary of Agriculture and Natural Resources. These sections provide as follows:chanrob1es virtual 1aw library

‘16. Prohibition to Alienate. — The applicant shall not sell, assign. encumber, mortgage or transfer, his rights under the agreement to sell or in the property subject thereof without first obtaining the written consent of the Secretary of Agriculture and Natural Resources and this condition shall subsist until the lapse of five (5) years from the date of the execution of the final deed of sale in his favor and shall be annotated as an encumbrance on the certificate of title of the property that may be issued in his favor.

‘17. Conveyance of Lands, Covered by Final Deeds of Sale. — Except by hereditary succession, no lands acquired hereunder shall be transferred or assigned to any individual unless he be landless and not otherwise disqualified from acquiring and owning lands in the Philippines. This prohibition shall be made a condition in all deeds of sale and shall be annotated as encumbrance in the certificate of title.

‘18. Violation of the two preceding paragraphs: its effect. — Any sale, assignment, encumbrance, mortgage, or transfer made in violation of the provisions to the next two preceding paragraphs hereof is null and void, and shall be sufficient ground for the Secretary of Agriculture and Natural Resources to cancel the deed of sale and to order the reversion of the land to the government and the forfeiture of whatever payments made on account thereof. In case, however. a deed of sale has already been issued, the violation of the said provisions shall be sufficient ground for the Secretary of Agriculture and Natural Resources to take appropriate action in court with a view to obtaining the reversion of the land involved to the government. All lands reverted to the government shall be disposed of as vacant lot.’



"Conditions Nos. 2 and 3, having been imposed pursuant to an Administrative Order which has the force and effect of the law, are therefore binding upon any person who acquires title to the same, it appearing that said Conditions are annotated as encumbrances on the back of the Certificate of Title of the land. Moreover, the said Conditions are not contrary to law, morals, customs, or public policy. In fact, these Conditions had been imposed in order to implement more effectively the main purpose of the constitutional provision which is to break up landed estates into reasonably small portions and to discourage the concentration of excessive landed wealth in an entity or a few individuals. (Republic v. Baylosis, 96 Phil. 461). Incidentally, the New Constitution of 1973 provided a modification of the original provision in the 1935 Constitution, thus: ‘The National Assembly may authorize, upon payment of just compensation, the expropriation of private lands to be subdivided into small lots and conveyed at cost to deserving citizens.’" (De Gallego v. Land Authority, L-26848, August 17, 1981, 106 SCRA 598, 604-606.)

WHEREFORE, the petition is hereby granted; the Order of the court a quo is set aside insofar as it orders the cancellation of restrictions Nos. 2 and 3. Costs against the Respondent.chanroblesvirtualawlibrary

SO ORDERED.

Makasiar (Chairman), Aquino, Concepcion, Jr., Guerrero, Escolin and Cuevas, JJ., concur.

The accused, Gil Munar, appeals his conviction for the crime of Rape by the Court of First Instance of Pangasinan, Branch IX, on August 20, 1971, which sentenced him to an indeterminate penalty of ten (10) years and one (1) day of prision mayor as minimum to seventeen (17) years, four (4) months and one (1) day of reclusion temporal as maximum, to indemnify the offended party, a mentally retarded girl of 19 years of age, in the sum of P5,000.00, and to pay the costs of suit. 1

In a Resolution, dated December 23, 1974, the Court of Appeals (now Intermediate Appellate Court) where the appeal was initially brought, certified the case to this Tribunal on the ground that since the lowest penalty prescribed for rape is reclusion perpetua, the same is within our exclusive appellate jurisdiction. 2 However, on January 30, 1984, in conformity with our ruling in People v. Daniel, 3 we returned the records of the case to the Intermediate Appellate Court for the determination of the proper penalty as the circumstances warrant, with a comprehensive written analysis of the evidence and discussion of the law involved, but the Intermediate Appellate Court shall refrain from entering judgment, and shall thereafter certify the case and elevate the entire records thereof to this Court for review.cralawnad

Conformably to that directive, on March 21, 1984, the Appellate Court, in a Decision penned by Justice Lorna S. Lombos-de la Fuente and concurred in by Justices Emilio A. Gancayco and Isidro C. Borromeo, found that the appealed judgment should be modified such that the imposable penalty shall be reclusion perpetua inasmuch as the rape was committed with the use of a deadly weapon, and its commission was not attended by any modifying circumstances. 4 The case is with us now for review, without any judgment having been entered in the Appellate Court.

Upon a careful review of the evidence, we sustain the factual findings and conclusions of law embodied in the Appellate Court’s judgment, and, therefore, adopt the same and append it as an integral part of this Decision (Annex "A").

The fact that complainant was feeble-minded, whose actual age at the time of the incident was 19 years but whose mental age was that of a 5-year-old child, does not affect her credibility. As stated by the Trial Court, her answers were intelligible enough to be understood. 5 She could convey her thoughts by words and signs. And, as the examining physician of the National Mental Hospital testified, the mental deficiency does not prevent her from recalling painful experiences. 6 She is a competent witness. 7 There may have been inconsistencies in her testimony, but the same are minor and do not detract from the vital fact that she had, in fact, been abused by the accused in the manner that she had narrated. Neither the Trial Court nor the Appellate Court, therefore, erred in giving weight and credence to her testimony, there being no improper motive shown. 8

The denials by the accused, specifically, that the complainant did not go to his store on the day the incident allegedly took place, and that he never had sexual intercourse with the complainant 9 do not deserve credence in the face of the positive and unwavering identification of the accused by the complainant. She testified that on March 2, 1967 when she went to buy starch from the accused in his store, the latter asked her to go inside and then with a knife in hand, forced her to lie down, then raised her dress, threw her panty away and had sexual intercourse with her. 10 That the carnal assault did take place is corroborated by the genital examination made by the Municipal Health Officer on the complainant. 11

The accused’s testimony that the motive of the complainant’s family in filing the trumped-up case against him was that the mother owes him P133.00 while the brother owes him P250.00 for goods taken on credit, for which he demanded payment, 12 was belied by complainant’s mother, who declared that they do not owe money to the accused. 13 In fact, the accused himself testified that he stopped extending credit to complainant’s family since 1964 and did not collect the debt anymore. 14

Considering that the rape was committed with the use of a knife, a deadly weapon, and in the absence of any modifying circumstances attending its commission, the penalty of reclusion perpetua conforms to Article 335 in relation to Article 63(2) of the Revised Penal Code.chanrobles virtual lawlibrary

WHEREFORE, we affirm the judgment of conviction imposed upon the accused, Gil Munar, and sentence him to suffer the penalty of reclusion perpetua, with the modification that the indemnification to the offended party is hereby increased to P15,000.00. Costs against the Accused-Appellant.

SO ORDERED.

Plana, Relova and Gutierrez, Jr., JJ., concur.

Teehankee, J., concurs in the result.

De la Fuente, J., took no part.

REPUBLIC OF THE PHILIPPINES

INTERMEDIATE APPELLATE COURT

MANILA

FIRST CRIMINAL CASES DIVISION

ANNEX "A"

(G.R. No. L-40462 — People of the Philippines v. Gil Munar)

AC-G.R. CR No. 12903 March 21, 1984 - PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. GIL MUNAR, Accused-Appellant.

The record shows that the accused Gil Munar was charged in the Court of First Instance of Pangasinan, Branch IX, with the crime of Rape allegedly committed as follows, according to the corresponding Information:jgc:chanrobles.com.ph

"That on or about the 2nd day of March 1967, in Barrio Batakil, municipality of Pozorrubio, province of Pangasinan, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused by the use of force and intimidation, did, then and there, willfully, unlawfully and feloniously have sexual intercourses with one Espirita Mapanao, a feeble-minded woman against the will and consent of the above-named victim; that the offense was committed with attendant aggravating circumstance of evident premeditation and craft was employed by the accused."cralaw virtua1aw library

and that after trial, the trial court found the accused guilty of the crime of rape in its decision dated August 20, 1971, the dispositive portion of which reads:jgc:chanrobles.com.ph

"WHEREFORE, the Court, finding the accused guilty beyond reasonable doubt of the crime of rape charged in the information, and there being no mitigating or aggravating circumstance present in the commission of the offense, hereby sentences him to an indeterminate sentence of TEN (10) YEARS and ONE (1) DAY of prision mayor in its maximum period as minimum to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1) DAY of reclusion temporal in its maximum period as maximum, and to indemnify the offended party in the sum of P5,000.00, without subsidiary imprisonment in case of insolvency, and to pay the costs of this suit."cralaw virtua1aw library

It also appears from the record that accused elevated aforesaid decision to the then Court of Appeals on appeal; that in a Resolution dated December 23, 1974, the Court of Appeals declared itself without jurisdiction over the appeal and forwarded the records of the case to the Supreme Court because under Republic Act No. 4111 which became effective on June 20, 1964, the lowest penalty prescribed for rape is reclusion perpetua and all offenses where the penalty imposed by law is death or life imprisonment are under the exclusive appellate jurisdiction of the Supreme Court.

However, the Supreme Court has, by letter dated January 30, 1984, returned the case to this Court "for the imposition of the proper penalty as the circumstances warrant, with a comprehensive written analysis of the evidence and discussion of the law involved, but the Intermediate Appellate Court refraining from entering judgment, and forthwith certifying the case[s] and elevating the entire records thereof to the Supreme Court for review." In compliance with abovestated directive, this Court submits the discussion of the case hereunder set forth.chanrobles.com.ph : virtual law library

The facts of the case as established by the evidence on record are as follows:chanrob1es virtual 1aw library

On March 2, 1967 at about noon (p. 13, tsn, March 18, 1969) Espirita Mapanao, a feeble-minded woman about nineteen years of age (p. 9, t.s.n., Sept. 10, 1969) with a mental age of five years (Exh. "B"), went to the store owned by the accused to buy starch as requested by her sister Siony (pp. 2, 11, 15, t.s.n. March 18, 1969). When Espirita was at the store, Accused asked her to go inside the storeroom adjoining the store (p. 16, t.s.n., March 18, 1969) where he held her, forced her to lie down on the bed, raised her dress, threw her panty away, took out his penis and had sexual intercourse with her (pp. 3 & 4, t.s.n., March 18, 1969). Espirita wanted to shout but the accused held a knife about five inches in length (pp. 3, 16 and 17, t.s.n., March 18, 1969). The accused told her not to cry or tell anybody about the incident, warning her that if she did, he would get mad at her (pp. 18, 19 and 24, t.s.n., March 28, 1969). After the sexual intercourse, the accused gave Espirita four tablets with the order that she take the tablets in order to prevent her from becoming pregnant, and stating that if she did not take the tablets he would kill her (pp. 12, 16, t.s.n., Sept. 10, 1969); and she took two of the tablets (p. 5, t.s.n., March 18, 1969).

Appellant attributes to the trial court a single error, namely, "The lower court erred in convicting the accused on evidence which has not proven his guilt beyond reasonable doubt." Under this assignment of error, appellant assails Espirita’s competence as a witness. Appellant contends that Espirita’s testimony is shot through with inconsistencies in material points, thus making the said testimony highly unreliable, particularly referring to Espirita’s testimony that accused held a knife about 5 inches in length in threatening her before she was raped which she later changed to a bolo about 1 foot and 4 inches in length; and to her testimony that she was made to lie down on a bed under the house of the accused which she later changed to the floor of the storeroom. Appellant also refers to certain statements of Espirita which constitute grounds for discrediting her trustworthiness, such as her testimony that accused had carnal knowledge with her for one hour; that an hour after the intercourse she spat blood; that the complaint was filed at the instance of her brother and mother who owed the accused money; that the rape took place five years ago; that the head of a baby was more than five days old when it was removed from her womb by the physician; and that her mother and brother had approached the accused for a settlement of the case and demanded P2,000.00 from the accused and P300.00 "also for us." Appellant also points out that Espirita’s mother herself admits that Espirita does not remember things and sometimes does not know what she is talking about. Appellant likewise alludes to the testimony of Dr. Tomas Quinto that the vaginal orifice of the offended party admits one finger with resistance and that pain is evident when the finger is inserted, implying that her genital organ had not been penetrated by a male penis, as, for instance, by that of the 55-year old appellant. Appellant concludes that the testimonies of the abovementioned three witnesses engender grave doubt as to the commission by the accused of the crime of rape on the offended party.

We find appellant’s foregoing claims devoid of merit.

It bears emphasis, at the outset, that in many cases of rape, because of the nature of the offense, the only evidence that can be given to sustain the charge is the testimony of the offended party; and it has been held that if said testimony is credible, this testimony alone is sufficient to sustain the conviction of the accused (People v. Gan, 46 SCRA 667; People v. Selfaison, 110 Phil. 839).

In the present case, the trial court relied on the testimony of the offended party Espirita Mapanao, corroborated by the testimonies of Maria Caspillan Mapanao, Espirita’s mother, Dr. Tomas Quinto, the municipal health officer of Pozorrubio, Pangasinan, and Dr. Reynaldo Robles, a resident physician of the National Mental Hospital.

First of all, the offended party is a competent witness. The evidence shows that she is merely feeble-minded or mentally retarded whose actual age at the time when the crime was committed was 19 years but whose mental age was that of a five-year old child. The record shows that she was not insane and she could convey her ideas by words and signs. Therefore, she is not disqualified from becoming a witness pursuant to Section 19, Rule 130, of the Rules of Court, which disqualifies from being witnesses those "who are of unsound mind at the time of their production for examination, to such a degree as to be incapable of perceiving and making known their perception to others." Furthermore, the evidence shows that the offended party made sufficiently intelligent answers to the questions propounded to her as to how, where and by whom the crime of rape had been committed. Exactly in point is the case of People v. Daing, 49 O.G. 2336, which involved the crime of rape committed on a feeble-minded girl, 14 years of age, and wherein the court held that the offended party was a competent witness because, although it was shown during the trial that her mental capacities were not normally developed, she was able, through mumbled speech, signs and movements of her lips, to identify the appellant and to convey the general idea that she used to run errands for her mother; that she had been raped by the accused, her uncle, who covered her mouth before having carnal knowledge with her; and that she was mad at appellant because he forced her.cralawnad

In the case now before this Court, We find that notwithstanding her mental handicap, Espirita was able to give a clear and consistent narrative of how she was raped, declaring that she was told by the accused to go to the storeroom as the "gaw-gaw" was there; that she was forced to lie down by the accused, the accused holding a bladed instrument, which she referred to as a knife or a bolo and that accused had sexual intercourse with her. Throughout her testimony, she steadfastly stuck to her statement that the accused had sexual intercourse with her when she bought starch from him (pp. 7 & 13, tsn, March 18, 1969).

We find insignificant the inconsistencies between Espirita’s declaration that the accused held a bolo, contained in her sworn statement (Exh. "1") made before the municipal judge of Pozorrubio, Pangasinan, on the one hand, and her testimony in court, on the other hand, that accused held a knife 5 inches in length, and between the declaration in the same sworn statement that she was made to lie down on a mat on the floor and her testimony in court that she was forced to lie down on the bed. These are mere matters of insignificant details which do not pertain to facts of substance and value and would not affect the result of the case. For Espirita, as already stated, had been consistent and steadfast in her declaration that she had been the subject of sexual intercourse by the accused-appellant when she bought starch from the store of the latter and that she was threatened with a bladed instrument on that occasion.

The other statement made by Espirita — and referred to by appellant as indicative of her untrustworthiness as a witness — that the accused had carnal knowledge with her for one hour and she spat blood thereafter; that the rape took place five years ago; that the head of a baby was removed from her womb by a physician likewise must be dismissed as undeserving of serious consideration. Statements of such nature may be attributed to the mental retardation of the offended party and lapses such as these may be naturally expected of someone in her mental condition. At any rate, the statements refer merely to inconsequential matters which cannot defeat or negate her steadfast declarations on the fact that on the occasion of her buying starch from appellant’s store, she was the victim of sexual intercourse committed by appellant who held a bladed instrument and which took place in the storeroom beside the store.

Anent Espirita’s statements concerning the fact that her brother and mother owed the accused money and that the former had demanded P2,000.00 from the accused for the settlement of the case, suffice it to say that, even if these statements were true, this would not have affected the fact established convincingly by the evidence that Espirita was the victim of the crime of rape committed by the accused.

Neither should the testimony of the mother of Espirita that sometimes her daughter does not remember things nor knows what she is doing discredit Espirita’s testimony. Dr. Reynaldo Robles, the physician who made an examination of the mental condition of Espirita found and testified that Espirita is mentally retarded or deficient but not insane or psychotic; that imbeciles like Espirita can recall the daily or routinary activities which they had been doing and the harmful experiences which they may have gone through before; and that in the condition of mind in which Espirita was, she was in a position to remember what happened two or three years ago, especially those which are painful and shocking. The same physician further testified that it was significant that Espirita was steadfast in her statement that she was abused because, considering her age and intellectual condition, it could be a sign that she was telling the truth (pp. 42, 44, 47, tsn, Sept. 10, 1969).

The testimony of Dr. Tomas Quinto, the municipal health officer of Pozorrubio, Pangasinan, far from engendering doubt as to the commission by the accused of the crime of rape, indeed corroborates the testimonies of the other witnesses already mentioned. The said physician conducted a physical examination on Espirita on March 16, 1967 or about two weeks from the incident and the result of his examination of the victim’s genital organ was that sexual intercourse had indeed taken place with the victim (pp. 2, 3, 5; tsn, March 18, 1969). His statement in the medical certificate (Exh. "A") which he affirmed in court, that the "vaginal orifice admits one finger and with resistance" and that "pain is evident when the finger is inserted" does not militate against the conclusion that the offended party had been abused, considering that the medical examination was performed fourteen days after the offended party was abused and it is highly probable that the laceration had in the meantime healed. As a matter of fact, the same certificate expressly states that "the hymen had already been lacerated or raptured and its edges have already healed." At any rate, for rape to be consummated, proof of entrance of the male organ within the labia of the pudendum is sufficient (People v. Velasco, 73 SCRA 574).chanrobles lawlibrary : rednad

In fine, the trial court is correct in concluding that accused is guilty of the crime of rape. It has been held that sexual intercourse with a thirteen-year old child whose mental capacity is that of a five-year old child is rape (People v. Manlapaz, 88 SCRA 704, 719). A fortiori, sexual intercourse with the offended party in this case who is a 19-year old mental retardate with the mental age of a five-year old child constitutes rape.

Premises considered, We find that the trial court has not committed the error attributed to it by appellant in his sole assignment of error.

Inasmuch as the sexual intercourse by accused on the offended party was committed with the use of a bladed instrument, in other words a deadly weapon, it is, pursuant to Article 335 of the Revised Penal Code, punishable by reclusion perpetua to death. As the crime was not attended by any aggravating circumstance nor any mitigating circumstance, the penalty which should be and is imposed on the defendant-appellant, applying Article 63, paragraph 2, of the same Code, is reclusion perpetua.

WHEREFORE, the decision under appeal is hereby affirmed but with the modification of the penalty as set forth in the immediately preceding paragraph.

Pursuant to the directive of the Supreme Court to this Court dated January 30, 1984, supra, We are refraining from entering this judgment and this case and the entire records thereof are herewith certified and elevated to the Supreme Court for review.

We concur:chanrob1es virtual 1aw library

(SGD.) ISIDRO C. BORROMEO

Appellate Justice

(SGD.) EMILIO A. GANCAYCO

Appellate Justice

Endnotes:

---

1. Original Record, pp. 260 & 261.

2. Rollo, p. 55.

3. 86 SCRA 511 (1978).

4. Rollo, p. 66.

5. Decision, p. 10; Original Record, p. 259.

6. T.s.n., September 10, 1969, pp. 42, 44 & 47.

7. vide People v. De Jesus, G.R. No. L-39087, April 27, 1984.

8. People v. Coderes, 104 SCRA 255 (1981); People v. Blas, 106 SCRA 305 (1981).

9. T.s.n., September 24, 1970, pp. 21 & 22.

10. T.s.n., March 18, 1969, continuation of Hearing pp. 1-4 & 15-17.

11. Exhibit "A", Original Record, p. 3.

12. T.s.n., September 24, 1970, p. 19.

13. T.s.n., September 10, 1969, p. 56.

14. T.s.n., September 24, 1970, pp. 26 & 27.

This is an appeal from the decision of the Court of First Instance of Bohol at Tagbilaran (now Regional Trial Court) finding appellant Federico Vistar guilty beyond reasonable doubt of the crime of rape and sentencing him to suffer the penalty of reclusion perpetua and to indemnify the offended party the sum of P10,000.00 as moral damages, and to pay one third of the costs.

In a criminal information filed by the 3rd Assistant City Fiscal of the City of Tagbilaran upon the criminal complaint filed by the offended party, Ebelia Dopiño, dated April 1, 1975, appellant together with Policarpo Campesino and Efren Moreno were charged with the crime of rape as follows:jgc:chanrobles.com.ph

"That, on or about the 6th day of March, 1975, in the City of Tagbilaran, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, with the used of force and by intimidation and personal violence, did then and there willfully, unlawfully and feloniously have sexual intercourse with one Ebelia Dopina against her will, to the damage and prejudice of the latter in the amount to be proved during the trial of the case."cralaw virtua1aw library

Since two of his co-accused were at large at the time of the trial and up to the present, only accused-appellant Federico Vistar was brought to trial. When arraigned on July 26, 1976, he entered a plea of not guilty. After due hearing, the trial court rendered the above-mentioned decision, convicting Federico Vistar for the crime of rape.

The prosecution’s evidence which the lower court relied upon to make its finding of guilt beyond reasonable doubt is narrated in the People’s Brief, as follows:chanrobles virtual lawlibrary

"On the morning of March 6, 1975 at Tagbilaran City, Evilia boarded the M/V Sweet Hope, an inter-island vessel plying the Tagbilaran-Cebu sea route. The boat was scheduled to leave at 10:00 o’clock that same morning. Since the time was too short for Evilia to see her brother, a worker in another boat, the M/V Sweet Home, she decided to go down and went to the ‘Lolly B’ store located at the wharf (pp. 4-5, tsn, Aug. 31, 1976).

While Evilia was sitting at said store, she met a certain Yaning de la Cruz who was passing by. Evilia asked for her destination and Yaning answered she was fetching water. As Evilia wanted to relieve herself, she walked with Yaning and went up the M/V Sweet Town, another vessel making trips between Cebu and Tagbilaran, while Yaning proceeded to fetch water. Two men, namely: Policarpo Campesino and herein appellant, followed her. When she came out of the comfort room, Campesino and appellant asked her if she was the younger sister of Verano, their co-worker at the M/V Sweet Home. She replied in the affirmative. They then invited her to take lunch as it was already noontime. She just refused the offer, afraid and apprehensive, but was prevailed upon to accept it on their assurance that they would pay for the lunch and that they were truly friends of her brother (pp. 5-8, 29-30, id.).

Evilia dined in a cabin or ‘camarote’ of the M/V Sweet Town. There Campesino and appellant led her. After she had her lunch, a third man, Efren Moreno, joined them in the cabin which Campesino then closed. Fear came to Evilia. She wanted to run but they held her and forced her to lie on a cot. Campesino removed her dress while appellant and Moreno took off her panties. Then Campesino placed himself on top of her, covering her mouth with his right hand, and inserted his penis into her vagina until something warm came out of it. During the sexual act, appellant and Moreno held her thighs. Next to ravish her was appellant who likewise gagged her mouth with his hand, while Campesino and Moreno were holding her. Moreno took his turn, sexually assaulting her with the aid of his two companions (pp. 9-14, 31-33, id.). Evilia could not shout, much as she wanted to, since her mouth was ‘chocked’ by them (id.).

After satisfying their carnal lust, the trio went out of the cabin leaving their dizzy, naked victim lying on the cot. Evilia remained lying until about 2:00 o’clock p.m. when she felt better, her dizziness having disappeared. She wore her panties which was left on her right lap, already torn and smeared with her own blood (Exh. A) and put on another dress she got from her luggage. She did not bother to pick up from under the cot the dress she wore earlier placed there by her tormentors (pp. 14-16, 28-29, 37-38, id).

Once out of the cabin Evilia proceeded to the passengers’ quarters where few passengers were already boarding. She lay on bed, crying and emotionally shaken. She did not tell anybody of her fate. Nor did she disembark to report the matter to the police as she was alone, fearful of reprisal. She remained lying until the boat hoisted anchor for Cebu at midnight (pp. 16-17, 34-36, id.).

The boat arrived Cebu early the following morning. Evilia did not go down yet, but waited for the M/V Sweet Faith to arrive. where another brother was working. She met her brother when the M/V Sweet Faith docked at the pier. But she did not tell him of her tribulation due to fear (pp. 17-18, 36-37, id.).chanrobles.com : virtual law library

The first person to whom she confided her grief was her mother who fetched her in Cebu. Upon the advice of her mother, she submitted herself to a medical examination at the Bohol Provincial Hospital on March 16, 1975. Dr. Violeta A. Patos, the examining physician, issued the following day a medical certificate which indicates laceration in Evilia’s vagina and abrasions on her left cheek (Exh. C, p. 2, Folder of Exhibits). Evilia was also investigated by the PC, the result of which is embodied in the sworn statement she executed on March 17, 1975 (Exh. B or Exh. 1, p. 1, id.)." [pp. 18-21, 37, 41-50, tsn, Aug. 31, 1976]

In this appeal, the accused-appellant raises the following assignment of errors:chanrob1es virtual 1aw library

1. The trial court gravely erred in convicting appellant of the crime of rape upon complainant’s sole testimony, which is of very doubtful veracity;

2. The trial court also gravely erred in discrediting entirely the plausible evidence for the defense; and

3. The trial court finally erred in not acquitting appellant, at least, on reasonable doubt of his guilt.

After a careful evaluation of the pieces of evidence presented by both parties, We affirm the holding of the trial court.

Accused-appellant strongly denies his involvement to the crime charged. He claims that he, being the messboy of M/V Sweet Town, was at the mess hall serving lunch to the officers of the said ship since his midday duty was from 11:30 A.M. to 1.00 o’clock P.M. 1 He then advances the theory that the offended party merely fabricated this offense. To substantiate his claim, he argues that: (1) The offended party was not at the M/V Sweet Town on March 6, 1975 since her name was not listed in the passengers’ manifest on that day (Exhibit 4). It was, therefore, improbable for her to be raped therein. Besides, no incident of rape was reported in the logbook of the said ship on the aforecited date (Exhibit 3); (2) There were marked inconsistencies on what she declared in her affidavit (Exhibit 1) as contrasted in her testimonies on the witness stand (Exhibits 1-A to 1-A-2); (3) If ever she was raped on March 6, 1975, why did she not report the crime immediately to the captain of the ship, to the police or to her brother whom she met the following day? She only informed her mother about her heinous experience a week after she was abused; 2 and (4) The panty (Exh. A) which the offended party wore at the commission of the offense was presented only for the first time on August 31, 1976, or about 17 months after the said offense was committed. Being a simple country girl, the offended party could not have thought of keeping the same for evidentiary purposes. For this reason, Accused-appellant submits that the said panty was fabricated for the purpose of corroborating the testimony of the offended party.

Since the offended party was able to positively identify the accused including those who abused her as the sexual assault was committed at 12:00 o’clock noon, We rule that the positive identification made by the former on the accused-appellant as one of those who raped her prevails over the defense of alibi set up by the latter especially that the accused-appellant himself admitted that he was at M/V Sweet Town when the said crime was committed. 3 We find the arguments advanced by the accused-appellant, in his attempt to convince Us that the offended party merely fabricated this offense, to be without legal merit because: (1) the presumption that an official duty has been regularly performed is only a disputable presumption (Sec. 5 (m) Rule 131, Rules of Court). The offended party has disputed this presumption by having shown that the officers of M/V Sweet Town failed to register her in the passengers’ manifest despite her presence therein. The reason why this crime was not listed in the logbook of the said ship was due to the failure of the offended party and the accused, who were the only witnesses to the commission of herein offense, to report it; (2) the inconsistencies in the declarations of the offended party in her affidavit as compared to her testimonies on the witness stand do not affect her credibility since they refer to minor details only (People v. Bawit, 102 SCRA 797; People v. de Gracia, L-21419, Sept. 29, 1966) such as who was with her when she went aboard the M/V Sweet Town, who invited her to the cabin, and whether or not accused Policarpo Campesino was naked when he inserted his penis into her vagina. On the important and decisive details, she was consistent in all the statements she made such as she was forced to lie down on the cot 4 and was undressed. 5 Thereafter, the accused took turns in abusing her while they continuously held her thighs 6 and choked her mouth; 7 (3) The offended party did not report the incident to anybody but waited instead for her mother because a victim of the crime of rape would like to report the offense done to her to someone of her fullest confidence and who could look at her plight with sympathy and understanding (People v. Terrobias, 103 SCRA 321); and (4) The panty which the offended party wore at the time of the commission of the offense was presented as an evidence at the request of the fiscal. 8 As an officer sworn to uphold the truth, We are not persuaded to believe that he (the Fiscal) will go to the extent of fabricating pieces of evidence for the sake of sending the accused to prison. One of the natural reactions of the victim of this heinous crime is to keep the dress and panty she was wearing at the time she was raped. 9

On the other hand, this Court in a long line of cases has held that 16-year old country girl who barely finished the elementary grades 10 will not maliciously impute that she has been raped because: (1) she does not want herself to be the subject of public ridicule, shame and dishonor; (2) she will not allow somebody to conduct an examination on her private parts; and (3) she does not want to go through with the troubles and humiliation of a trial (People v. Selfaison, 1 SCRA 235; People v. Baylon, 57 SCRA 115; People v. Savellano, 57 SCRA 320; People v. Olmedillo, 116 SCRA 173; People v. Manzano, 118 SCRA 705). With her low education, the offended party would never have thought of sending a man to prison if not for her desire to bring to justice the person(s) who had grievously wronged her (People v. Savellano, supra; People v. Francisquite, 56 SCRA 764). This gains strength as the defense failed to cite any reason why the offended party would fabricate a story of rape upon herself and impute it to persons who were strangers to her. 11 (People v. Aleman, 102 SCRA 765; People v. Boado, 103 SCRA 607). Moreover, the findings of the trial judge that the victim while testifying showed no signs of insincerity or falsehood in her actions, manners, and behavior (People v. Felipe, 115 SCRA 89; People v. Reglos, 118 SCRA 344; People v. Syquioco, 118 SCRA 413), are entitled to full faith and credit with Us.chanrobles.com : virtual law library

The medical officer who conducted a medical examination on the offended party 11 days after the commission of the offense testified 12 that it is probable that the complainant had previous sexual intercourse because her hymen has been perforated or lacerated and that the perforation or laceration could have occurred a few weeks or perhaps a month before the offended party was subjected to medical examination. 13 The medical officer further testified that at the time she examined the offended party, the latter had linear abrasions in her face, near the mouth which were possibly a week or more old at the time of said medical examination. 14 The offended party testified during her cross-examination that she sustained the linear abrasions as a result of the continuous choking of her mouth by the accused while they were abusing her. 15 There is a reasonable and significant proximity of the time when the offended party suffered a hymenal laceration and her incurring of abrasions in her face to the time of the commission of herein offense. Without doubt the testimony of the medical officer further strengthened the credibility of the offended party.

Based from the foregoing, We hold that accused-appellant is guilty of having committed the crime of rape beyond reasonable doubt. We agree, however, with the Solicitor General that the accused-appellant, having committed three crimes of rape in conspiracy and complicity as well as direct participation in the commission of the two rapes perpetrated by the other two accused who remain at large, should be sentenced to three (3) separate penalties of reclusion perpetua. (People v. Reglos, 118 SCRA 344; People v. Vizcarra, 115 SCRA 743; People v. Bohos, 98 SCRA 353; People v. Babasa, 97 SCRA 673; People v. Jose, 37 SCRA 450).chanrobles.com:cralaw:red

WHEREFORE, the decision under review is hereby MODIFIED in the sense that the accused-appellant Federico Vistar is sentenced to suffer three (3) separate penalties of reclusion perpetua, to indemnify the offended party for moral damages in the increased amount of P30,000.00, and to pay one-third of the costs.

SO ORDERED.

Makasiar, Aquino, Concepcion, Jr., Abad Santos, Escolin and Cuevas, JJ., concur.

Endnotes:

---

1. t.s.n., November 3, 1976, p. 91.

2. t.s.n., August 31, 1976, p. 18.

3. It is a well-settled doctrine that for alibi to be acceptable, it must be shown that the place where the accused was alleged to when the offense was committed must be located at such a distance that it is well nigh impossible for him to be at the scene of the crime (People v. Tirol, 102 SCRA 558. See also People v. Alcantara, 126 SCRA 425).

4. t.s.n., August 31, 1976, p. 9.

5. Ibid., p. 11.

6. Ibid., p. 10.

7. Ibid., p. 45.

8. Ibid., p. 27.

9. The other is to know the identity of the assailants. (People v. Selfaison, supra; People v. Orteza, 6 SCRA 109).

10. t.s.n., Aug. 31, 1976, p. 4.

11. The offended party stated that the first time she met the accused-appellant was on March 5, 1976 when the latter with two others raped her, while the accused-appellant claimed that the first time he saw the offended party was when he was invited at the PC headquarters in Tagbilaran in connection with the complaint filed by the latter.

12. A physician in a rape case is presented not to prove that the victim was raped but to show only that the latter had lost her virginity (People v. Opena, 102 SCRA 755).

13. t.s.n., Aug. 31, 1976, p. 50.

14. Ibid., p. 45.

15. Ibid., p. 32.

A Petition for Review on Certiorari of the decision of the Civil Service Commission upholding that of the Merit Systems Board in its MSB Case No. 50.

In the Regional Health Offices of the Ministry of Health, there are positions of Supervising Dentist and Senior Dentist, the former being of higher rank. Sometime in 1977, the position of Supervising Dentist in Regional Health Office No. 4, Manila, became vacant. At that time, petitioner TADURAN was the Supervising Dentist of Regional Health Office (RHO) No. 9, Zamboanga City, while private respondent GODINEZ was Senior Dentist of Regional Health Office (RHO) No. 4, Manila.

On February 23, 1977, the Secretary of Health (now Minister of Health) appointed TADURAN as Supervising Dentist of RHO No. 4. It was a "transfer from a similar position in Regional Health Office No. 9, without alteration in salary," On March 7, 1977, GODINEZ protested TADURAN’s appointment before the Civil Service Commission on the ground that as Senior Dentist in RHO No. 4, promotion was hers of right since she was the next-in-rank to Supervising Dentist.

It is admitted that GODINEZ has an edge over TADURAN in terms of educational attainment as she has a Certificate in Public Health, which TADURAN does not possess. However, the appointing authority considered the fact that TADURAN outranks GODINEZ in points of experience, rank and salary. TADURAN had been a World Health Organization Fellow; had conducted Dental Epidemiological Survey in Singapore for 3 months, and had an extensive supervisory field work experience compared to the experience of GODINEZ in field work supervision, which had started only on October 25, 1976.chanrobles.com:cralaw:red

The issue for resolution is whether, under the new Civil Service Decree (P.D. No. 807), the promotion of a Senior Dentist to a vacant position of Supervising Dentist in the same region has priority over the transfer to the vacant position of one who is already a Supervising Dentist in another region. Respondent Civil Service Commission upheld the Decision of its Merit Systems Board finding no justification for the appointment of TADURAN, a transferee, despite the availability of a next-in-rank employee in the same region in the person of GODINEZ. It declared the appointment by the Secretary (now Minister) of Health null and void, directed TADURAN’s return to his former station, and recommended the promotion of GODINEZ to the contested position.

We are constrained to reverse.

The pertinent provisions of P.D. No. 807 read:jgc:chanrobles.com.ph

"Sec. 19. Recruitment and Selection of Employees. —



(3) When a vacancy occurs in a position in the second level of the Career Service as defined in Section 7, the employees in the government service who occupy the next lower positions in the occupational group under which the vacant position is classified and in other functionally related occupational groups and who are competent, qualified and with the appropriate civil service eligibility shall be considered for promotion.



(5) If the vacancy is not filled by promotion as provided herein the same shall be filled by transfer of present employees in the government service, by reinstatement, by re-employment of persons separated through reduction in force, or by appointment of persons with the civil service eligibility appropriate to the positions.



(6) A qualified next-in-rank employee shall have the right to appeal initially to the department head and finally to the Office of the President an appointment made (1) in favor of another next-in-rank employee who is not qualified, or (2) in favor of one who is not next-in-rank, or (3) in favor of one who is appointed by transfer and not next-in-rank, or by reinstatement, or by original appointment if the employee making the appeal is not satisfied with the written special reason or reasons given by the appointing authority for such appointment: . . . (Emphasis ours)

We find no mandatory nor peremptory requirement in the foregoing provision that persons next-in-rank are entitled to preference in appointment. What it does provide is that they would be among the first to be considered for the vacancy if qualified, and if the vacancy is not filled by promotion, the same shall be filled by transfer or other modes of appointment. The latter provision is identical to that in Section 23 of Republic Act No. 2260. 1

The noticeable change introduced by Section 19(6) of P.D. No. 807 lies in that a qualified next-in-rank employee shall have the right to appeal an appointment in favor of one who is appointed by transfer and not next-in-rank if the employee making the appeal is not satisfied with the written special reason or reasons given by the appointing authority for such appointment. In other words, "special reason or reasons" are now required to be given even in case of an appointment by transfer and not next-in-rank. However, the right of appeal granted to the next-in-rank who has not been promoted, cannot be construed as indicative of a legislative intent to give priority to promotion over transfer as a means of filling vacant positions. Such restrictive interpretation would unjustifiably imply that next-in-ranks are more fit and meritorious for appointment than those of higher rank moved by transfer. It would also impose a rigid formula on the appointing power contrary to the policy of the law that among those qualified and eligible, an appointing authority is granted discretion and prerogative of choice of the one he deems most fit for appointment. 2 The cardinal requirement is merit and fitness under Article XII, B, Section 2, of the 1973 Constitution, and the demands of public service. 3

"It would seem fairly obvious then that the law does not impose a rigid or mechanistic formula on the appointing power, compliance with which is inexorable and a deviation therefrom fatal. Far from it. If there be adherence to the concept that public office is a public trust, as there ought to be, the criterion should be what public welfare demands, what satisfies public interest. For it is axiomatic that public needs could best be attended to by officials about whose competency and ability there is no question. To that overmastering requirement, personal ambition must of necessity yield. Discretion, if not plenary, at least sufficient, should thus be granted to those entrusted with the responsibility of administering the officers concerned, primarily the department heads. They are in the most favorable position to determine who can best fulfill the functions of the office thus vacated. Unless, therefore, the law speaks in the most mandatory and peremptory tone, considering all the circumstances, there should be, as there has been, full recognition of the wide scope of such discretionary authority. Happily, there is nothing in the Civil Service Act, which is fittingly concerned with protecting the rights of those in the career service that, rightly construed, calls for a different conclusion. It is well worth repeating that the broad authority of a department head appears undisputable. Such is the policy of the law, a policy reflected with fidelity in the decisions of this Court . . ." 4

We thus see no reason for disturbing the Minister of Health’s appointment of TADURAN in the exercise of his administrative or executive judgment.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

WHEREFORE, we reverse and set aside the appealed Decision of the Merit Systems Board, which was sustained by respondent Civil Service Commission and, instead, uphold the appointment of petitioner Dr. Napoleon A. Taduran as Supervising Dentist of Regional Health Office No. 4-A, Manila. The Temporary Restraining Order heretofore issued is hereby made permanent. No costs.

SO ORDERED.

Teehankee (Chairman), Plana, Relova and De la Fuente, JJ., concur.

Separate Opinions

Gutierrez, Jr., J., concurring:chanrob1es virtual 1aw library

I concur. However, I reserve my views on the extent of the change introduced by Section 19, Subsections 2 to 6, P.D. 807 on the Pineda v. Claudio doctrine when transfers or other modes are used instead of a next-in-rank promotion.

Endnotes:

---

1. "Sec. 23. Recruitment and Selection of Employees. —

Whenever a vacancy occurs in any position in the competitive service in the government . . . the officer or employee next in rank preferably in the same office, who is competent and qualified to hold the position and who possesses an appropriate civil service eligibility shall be appointed thereto: . . . That should there be any special reason or reasons why such officer or employee should not be appointed to such vacancy, such special reason or reasons shall be stated in writing by the appointing official and the officer or employee concerned shall be informed thereof and be given an opportunity to be heard by the Commissioner of Civil Service, whose decision shall be final, unless appealed from in the manner provided by law: . . .. If the vacancy is not filled by promotion as provided herein, then same shall be filled by transfer or present employees in the government service, by reinstatement, by re-employment of persons separated through reduction in force, or by appointment of persons with the Civil Service eligibility appropriate to the position." (Republic Act No. 2260)

2. Pineda v. Claudio, 28 SCRA 34 (1969).

3. Torre v. Borja, 56 SCRA 47 (1974).

4. Reyes v. Abeleda, 22 SCRA 825 (1968).

The issue raised in this case is whether an employer-employee relationship exists between the petitioner and the private respondents. It is the submission of petitioner that no such relationship exists or has been created because the "series of memoranda" issued by petitioner to the private respondents from 1973 to 1977 would reveal that it had no control and/or supervision over the work of the private respondents.

Private respondents are tailors, pressers, stitchers and similar workers hired by the petitioner in its tailoring department (Modes Suburbia). Some had worked there since 1969 until their separation on January 2, 1978. For their services, they were paid weekly wages on piece-work basis, minus the withholding tax per Bureau of Internal Revenue (BIR) rules. Further, they were registered with the Social Security System (SSS) as employees of petitioner and premiums were deducted from their wages; they were also members of the Avenida-Cubao Manila COD Department Store Labor Union which has a Collective Bargaining Agreement with the company; and, they were required to report for work from Monday through Saturday and to stay in the tailoring shop for no less than eight (8) hours a day, unless no job order was given them after waiting for two to three hours, in which case, they may leave and may come back in the afternoon. Their attendance was recorded through a bundy clock just like the other employees of petitioner. A master cutter distributes job orders equally, supervises the work and sees to it that they were finished as soon as possible. Quoting from the comment of the Solicitor General, Petitioner, in its memorandum, said —

"Once the job orders and the corresponding materials were distributed to them, private respondents were on their own. They were free to do their jobs either in the petitioner’s shop or elsewhere at their option, without observing the regular working time of the company provided that they finished their work on time and in accordance with the specifications. As a matter of fact, they were allowed to contract other persons to do the job for them; and also to accept tailoring jobs from other establishments." (p. 202, Rollo)

On September 7, 1977, the private respondents filed with the Regional Office of the Department (now Ministry) of Labor a complaint for violation of Presidential Decree 851 (13th month pay) and Presidential Decree 525, as amended by Presidential Decree 1123 (Emergency Living Allowance) against herein petitioner.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

After petitioner had filed its answer, the case was certified for compulsory arbitration to the Labor Arbiter who, after due hearing, rendered a decision on December 29, 1977 dismissing "private respondents’ claims for unpaid emergency living allowance and 13th month pay, for lack of merit, upon finding that the complainants (herein private respondents) are not employees of the respondent (herein petitioner) within the meaning of Article 267(b) of the Labor Code. As a consequence, the private respondents were dismissed on January 2, 1978 and this prompted them to file a complaint for illegal dismissal with the Ministry of Labor. Meanwhile, the National Labor Relations Commission (NLRC) affirmed the decision of the Labor Arbiter and dismissed private respondents’ appeal for lack of merit. However, upon appeal to the Minister of Labor, the latter reversed the resolution of the NLRC in a decision, dated March 27, 1979, holding that —

"The decision appealed from must be reversed. It is clearly erroneous. Complainants and respondent are correct (sic) in considering their relationship as one between employees and employer. The labor arbiter should not have made a different finding.

"Complainants were employed as tailors, pressers, stitchers and coatmakers in the tailoring department of the Respondent. They are hired through a master cutter and the department head and upon the approval of the personnel department and the management. They report to the shop from Monday to Saturday and record their attendance with a bundy clock. They are required to stay in the shop premises ‘for no less than 8 hours a day’ unless no job is given them ‘after waiting for two or three hours’ in which case, they are ‘allowed to leave.’

"The employees (tailors, pressers and stitchers) are paid by piece per week according to the rates established by the company. They are registered as employees with the Social Security System for which premiums are deducted from their wages. Taxes are also withheld from their wages pursuant to BIR rules. Moreover, they enjoy the benefits due to employees under their collective agreement with the company.

"The tailors are given deadlines on their assigned jobs. They are required to work on job orders as soon as these are given to them. The master cutter is ordered ‘to watch out for tailors who postponed their assigned job up to the last few days of the deadline’ and to report violators ‘for proper action.’ Tailors are also required to follow the company code of discipline and the rules and regulations of the tailoring department. Outright dismissal is meted on anyone who brings out company patterns.

"Under these facts, the existence of the employment relations can not be disputed. The respondent itself, in its very first position papers, accepts this fact. The labor arbiter certainly erred in making a different finding.

"However, respondent contends that the employees are excluded from the coverage of PD 525, 851 and 1123 because of the nature of their employment, there being ‘no fixed time with regards to entry and exit’ and no fixed number of days of work, with respect to said employees. We have, however, examined carefully the decrees and find absolutely no indication therein that the employees are indeed excluded. Nor are the rules implementing the decrees supportive of the respondent’s contention. On the contrary, the rules argue for the contrary view.

"Section 2 of the rules implementing PD 525 provides: ‘The Decree shall apply to all employees of covered employers, regardless of their position, designation or employment status, and irrespective of the method by which their wages are paid, including temporary, casual, probationary, and seasonal employees and workers.’ And Section 3, of the rules implementing PD 851 provides that ‘all employees of covered employers shall be entitled to benefits provided under the Decree . . . regardless of their position, designation or employment status, and irrespective of the method by which their wages are paid.’ Section 2 of the same rules explicitly provides that the rules apply to ‘workers paid on piece-rate basis’ or ‘those who are paid a standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same.’

"WHEREFORE, respondent is hereby ordered to pay the emergency allowances under PD 525 and 1123 and the 13th month pay under PD 851 from the date of the effectivity of said decrees but not earlier than September 7, 1974 to the following complainants: Leonardo Loveria, Editha Bayno, Fe Bonita, Ricardo Roxas, Marietta Galut, Mercedes Oliver, Antonio Mabutol, Clarita Sangle and Jesus Oliver; and the emergency allowances and 13th month pay under said decrees from the date of the effectivity of said decrees but not earlier than the date of the date of the start of their employment, as indicated in the parenthesis after their names, to the following complainants: Linda Tapiceria (July 14, 1975), Luz Bayno, (September 22, 1975), Tito Castañeda (October 20, 1976), Francisca Tapiceria (February 14, 1977), Manuel Mejes (February 20, 1977), Eddie Rodriguez (July 4, 1977) and Nestor Sanchez (July 22, 1977). The Socio-Economic Analyst of the National Labor Relations Commission is hereby directed to compute the amount of the awards stated in this order and to submit a report thereon within 20 calendar days from receipt of this order." (pp. 37-40, Rollo)

Thereafter, private respondents filed a motion for issuance of a writ of execution of the aforesaid decision of the Minister of Labor which was granted and, partially implemented.chanrobles lawlibrary : rednad

On February 28, 1980, the Labor Arbiter issued an order directing the Chief of the Research and Information Department of the Commission to designate a Socio-Economic Analyst to compute the balance of private respondents’ claims for the 13th month pay and emergency living allowance in accordance with respondent Minister’s decision of March 27, 1979. Pursuant thereto, a report, dated March 4, 1980, was submitted computing the balance of private respondents’ claims for emergency living allowance and 13th month pay up to February 29, 1980 in the total amount of P71,131.14. A writ of execution was issued for the satisfaction of said amount.

Hence, the filing of this petition for certiorari, praying, among others, to annul and set aside the decision of public respondent Minister of Labor and to dismiss the claims of private respondents.

We cannot sustain the petition. It was filed on April 11, 1980 which was too late because the Labor Minister’s decision of March 27, 1979, subject of this judicial review, had already become final. And, not only that. The questioned decision has already been partially implemented by the sheriff as shown by his return, dated July 17, 1979 (p. 96, rollo). What is left for execution is the balance of private respondents’ claim.

Further, the petition is devoid of merit. As held in Mafinco Trading Corporation v. Ople, 70 SCRA 139, the existence of employer-employee relationship is determined by the following elements, namely: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control employees’ conduct although the latter is the most important element. On the other hand, an independent contractor is one who exercises independent employment and contracts to do a piece of work according to his own methods and without being subjected to control of his employer except as to the result of his work.

1. In the case at bar, as found by the public respondent, the selection and hiring of private respondents were done by the petitioner, through the master cutter of its tailoring department who was a regular employee. The procedure was modified when the employment of personnel in the tailoring department was made by the management itself after the applicants’ qualifications had been passed upon by a committee of four. Later, further approval by the Personnel Department was required.

2. Private respondents received their weekly wages from petitioner on piece-work basis which is within the scope and meaning of the term "wage" as defined under Article 97(f) of the New Labor Code (PD 442), thus —

"(f) ‘Wage’ paid to any employee shall mean the remuneration or earnings, however, designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done or for services rendered or to be rendered, and includes the fair and reasonable value, as determined by the Secretary of Labor, of board, lodging or other facilities customarily furnished by the employer to the employee . . ."cralaw virtua1aw library

3. Petitioner had the power to dismiss private respondents, as shown by the various memoranda issued for strict compliance by private respondents, violations of which, in extreme cases, are grounds for outright dismissal. In fact, they were dismissed on January 2, 1978, although, the dismissal was declared illegal by the Labor Arbiter. The case is pending appeal with the National Labor Relations Commission.

4. Private respondents’ conduct in the performance of their work was controlled by petitioner, such as: (1) they were required to work from Monday through Saturday; (2) they worked on job orders without waiting for the deadline; (3) they were to observe cleanliness in their place of work and were not allowed to bring out tailoring shop patterns; and (4) they were subject to quality control by petitioner.

5. Private respondents were allowed to register with the Social Security System (SSS) as employees of petitioner and premiums were deducted from their wages just like its other employees. And, withholding taxes were also deducted from their wages for transmittal to the Bureau of Internal Revenue (BIR).

6. Well-established is the principle that "findings of administrative agencies which have acquired expertise because their jurisdiction is confined to specific matters are generally accorded not only respect but even finality. Judicial review by this Court on labor cases do not go so far as to evaluate the sufficiency of the evidence upon which the Deputy Minister and the Regional Director based their determinations but are limited to issues of jurisdiction or grave abuse of discretion (Special Events & Central Shipping Office Workers Union v. San Miguel Corporation, 122 SCRA 557)." In the case at bar, the questioned decision and order of execution of public respondents are not tainted with unfairness or arbitrariness that would amount to abuse of discretion or lack of jurisdiction and, therefore, this Court finds no necessity to disturb, much less, reverse the same.chanrobles.com:cralaw:red

WHEREFORE, premises considered, the petition is dismissed for lack of merit.

SO ORDERED.

Melencio-Herrera, Plana, Gutierrez, Jr. and De la Fuente, JJ., concur.

Teehankee, J., took no part.

Accused Rodolfo Quibate appeals the decision of the Court of First Instance of Capiz finding him guilty beyond reasonable doubt of the crime of parricide and sentencing him to suffer the penalty of reclusion perpetua and to indemnify the heirs of Prima Baltar-Quibate.

Around 4:00 in the early morning of July 22, 1978, the accused-appellant stabbed his wife Prima Baltar to death in a fit of jealousy. The couple’s ten-year old daughter, Imelda Quibate, testified that her father stabbed her mother to death with a knife while the two were quarreling in the balcony of their house at Aranguel, President Roxas, Capiz. The daughter stated that the quarrel arose from her father’s jealousy of "Gabi" their neighbor. Imelda ran to the house of her uncle, Alberto Baltar who immediately went to his sister’s house. Alberto saw his sister already dead, the accused-appellant drumming the death weapon against the window sill. When the police arrived at the scene, Quibate was still holding the knife. The accused tried to kill himself with the knife pointed at his chest but when Corporal Calixto Morales fired a shot with his revolver, the accused surrendered the knife.

The wounds suffered by the deceased were stated by Dr. Manuel Buenvenida, rural health physician of President Roxas, Capiz, in his autopsy report as follows:jgc:chanrobles.com.ph

"1. Incised wound at the left side of the chest above nipple, perforating, 1" wide.

"2. Incised wound at the right side of the chest below the nipple, perforating, 1" wide.

"3. Incised wound at the left side of abdomen, at the iliac side, 4" below the navel, perforating, 1" wide.

"4. Incised wound at the medial and posterior aspect of the left forearm, 1 cm. wide, gapping, (sic) involving the skin.

"5. Abrasions-hematoma at the right arms and forearms.

"The deceased died of shock secondary to profuse hemorrhage.’"

The accused-appellant raised two assignments of errors in this appeal, namely —

"I. THE COURT ERRED IN MOTO PROPRIO CANCELLING THE PROMULGATION OF DECISION OF MARCH 4, 1980.

"II. THE COURT ERRED IN CONVICTING THE ACCUSED OF THE CRIME OF PARRICIDE."cralaw virtua1aw library

The trial court promulgated its decision on March 4, 1980 sentencing the accused to an indeterminate period of imprisonment of 12 years minimum to 17 years maximum. However, immediately after promulgating it on that day, the court had second thoughts and issued the following order:jgc:chanrobles.com.ph

"After the promulgation of this case, the court moto proprio cancels the promulgation upon nothing that the regular counsel de oficio, Atty. Antonio Bisnar was not around at the time and the accused refused to sign receipt of a copy of the decision and upon noting that there was a typographical error in the decision consisting of the wrong penalty and the court noting further that the decision have not been filed.

"Notifying accused and counsel of the new date of promulgation which is hereby set for March 20, 1980."cralaw virtua1aw library

It may be noted that apart from cancelling the promulgation, the court ordered that the accused and his missing counsel be notified of the new date of promulgation which was set for March 20, 1980.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

On March 20, 1980, the counsel de oficio was again absent so the court appointed a well-known practitioner in the area, Atty. Jose Alovera, to assist the accused in the promulgation and to coordinate with the other counsel Atty. Antonio Bisnar. Promulgation was re-set to April 1, 1980.

On March 27, 1980, Atty. Alovera filed a motion to advance the date of promulgation to March 31, 1980 as counsel had to leave for Iloilo City on April 1, 1980. The motion to advance the date of promulgation was considered on April 1, 1980. Promulgation was re-set to April 11, 1980.

On April 11, 1980, an oral motion to quash promulgation was made. No memorandum in support of the motion was filed and the records fail to indicate the grounds relied upon by counsel. On June 9, 1980, the motion to quash promulgation was denied. The promulgation was reset to June 13, 1980 on which date the questioned decision imposing reclusion perpetua instead of the earlier indeterminate period of imprisonment of 12 years as minimum and 17 years as maximum was rendered.

We resolve the second assignment of error first. The allegation that the marriage of the accused-appellant and the deceased was not established has no merit.

The marriage contract (Exhibit B) evidencing the marriage solemnized on May 16, 1954 was introduced in evidence. Father Gaudioso Tropico of the Roman Catholic church testified that he solemnized the marriage of the accused and Prima Baltar and that the newly married couple, the witnesses, and himself signed the said marriage contract in each others presence. True, the contract shows that Prima Baltar was married to "Teodulfo" Quibate but defense witness Atty. Jose Azarraga testified that the accused used the name "Teodulfo" when they were classmates. The accused himself admitted that he used to be called "Teodulfo." On the fact of marriage, Alberto Baltar testified that he was present in church when his sister and the accused were married. Father Gaudioso Tropico, on re-direct examination was asked to go around the courtroom and identify the "Teodulfo Quibate" whose marriage he solemnized. He did so and picked out the Accused-Appellant. The accused-appellant did not deny the marriage but admitted during trial that he and his late wife were married, that they were married by Father Tropico who testified in the case.

The appellant raises no issue in this appeal regarding his main defense during the trial below — that he acted in self-defense. We have nonetheless examined the records on this point because of the serious nature of the crime. We find no error in the court’s rejecting this defense. The allegation of self-defense has no basis.

The accused-appellant testified that two months before the fatal incident, he caught his wife having sexual intercourse with their neighbor "Gabi" or "Gabe" and that he called her to come up their house. He was so angry that he boxed her. Gabi was not only bigger than the accused, but he also had a gun. Yet when he wanted to have sexual intercourse with his wife, she refused. When he insisted, she still refused. According to the accused, he begged for almost two hours to have sex with his wife but she refused. Later on, he noticed that she took a knife from a "baul" or clothes trunk by her side and tried to stab him. They grappled for the knife and she was hit. The trial court found the story of self-defense not believable. We agree. The accused-appellant, in a fit of jealousy, stabbed his wife inflicting the four separate incised wounds described in the autopsy report, which resulted in shock, profuse hemorrhage, and death.

The appellant states in his first assignment of error that the lower court erred in cancelling the March 4, 1980 promulgation because the grounds given by the court do not warrant such a cancellation.chanrobles lawlibrary : rednad

The appellant questions the cancellation and resetting of promulgation stating that the counsel did not have to be present during the promulgation of judgment and that there was no need to nullify a promulgation already effected simply because the accused refused to sign. According to the appellant’s brief, the appellant refused to sign because he did not know how to write.

It is not required that counsel for the accused must be present when judgment is promulgated for it to be valid and effective. However, considering the level of intelligence of the accused and the serious nature of the offense, the Court had reason to require counsel’s presence during promulgation. The court, however, followed a manifestly strange procedure when it pronounced the sentence of conviction and then immediately afterwards, reconsidered and cancelled the whole thing on the ground, among others, that the lawyer was not present. On noticing that there was no lawyer for the accused, the Court should have deferred the promulgation of the decision if it wanted counsel to be around.

It is obvious from the appealed decision that the presiding Judge had conflicting feelings in his mind when the date for promulgation arrived. If so, he should have resolved them before going ahead.

The decision reads, in part:jgc:chanrobles.com.ph

"The Court finds in accordance with Art. 13, of the Revised Penal Code, mental weakness, and voluntary surrender. Likewise, the Court considers the history of infidelity of the victim’s wife, coupled with her refusal to perform her marital duties, after accused had begged for two (2) hours, immediately preceding the stabbing, as analogous to an aggression and should also be considered mitigating. The Court believes that the attitude and behaviour of the accused, such as the tenderness he showed to his daughter Imelda after the latter’s testimony, shows remorse and lack of real malice.

"In view thereof, the Court recommends Executive Clemency, such as would reduce the imprisonment to a lesser period."cralaw virtua1aw library

The procedure followed by the lower court is not the most appropriate under the circumstances but it does not constitute a ground to nullify the decision later promulgated.

The second reason about the refusal to sign may have been insufficient to warrant postponement of promulgation of judgment but, under the circumstances, it is not a basis to set aside or modify the appealed decision.

Regarding the last ground for the first assignment of error, it is unlikely that the imposition of a sentence of 12 to 17 years imprisonment instead of reclusion perpetua would be a typographical error. It was not. It was an error of hasty judgment based on a misapprehension of the provisions of the Revised Penal Code applicable to the facts of the case. The lower court made a mistake and it should have taken immediate steps to rectify it instead of waiting for more than three months.

The more serious questions arising from the facts of this case are not raised in the appellant’s brief but the Court has decided to resolve them considering that a man’s liberty is at stake and the lower court itself has recommended executive clemency for the Appellant.

What was the effect of the cancellation of promulgation on March 4, 1980? Did the decision whose promulgation was cancelled become final and executory fifteen days later on March 19, 1980? Did the court have jurisdiction to impose the penalty of reclusion perpetua on June 13, 1980?

Under Section 7 of Rule 120 of the Rules of Court, a judgment of conviction may be modified or set aside by the court rendering it before the judgment becomes final or an appeal is perfected. In the instant case, no appeal had been perfected when the trial court set aside its judgment and cancelled its promulgation. But had the judgment become final? The cited section provides:jgc:chanrobles.com.ph

"A judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or the defendant has expressly waived in writing his right to appeal."cralaw virtua1aw library

In the case at bar, the judgment of conviction and its promulgation were set aside on the very day that the judgment was promulgated. At that time, the period for perfecting an appeal had not lapsed; and the accused had not waived his right to appeal. Only if he were deemed to have commenced service of his sentence could the judgment be deemed final.

The law gives the accused 15 days after promulgation of a judgment of conviction within which to decide whether he will take an appeal or not; and unless he has expressly waived in writing his right to appeal or has voluntarily commenced service of his sentence, the accused may yet take an appeal within the 15-day period, (See People v. Valle, 7 SCRA 1025; Mabuhay Insurance and Guaranty, Inc. v. Court of Appeals, 32 SCRA 245). The accused was returned to the same detention cell where he was confined pending trial. He never intimidated acceptance of the judgment or that he would no longer appeal.chanrobles.com : virtual law library

From the above considerations, it follows that when the trial court cancelled the promulgation it had just concluded, it were as if no decision had been rendered and no judgment had been imposed. The promulgation or the entire process had been set aside to be effected on a future date. The decision promulgated on June 13, 1980 would not merely be an amendment of the sentence imposed earlier but would be the decision itself being promulgated in the case. Consequently, there was no judgment to become final and executory except from June 13, 1980. If the court had decided to commit the accused to jail on March 19, 1980, there would have been no basis for the execution of judgment and the commitment as the decision promulgated earlier had been cancelled and set aside. The accused could not have accepted a judgment or commenced to serve a sentence based on a cancelled and, therefore, non-existent promulgation.

We find in this case an opportune occasion to remind all trial courts to devote a little more time to the study of the penalty provisions of the Revised Penal Code immediately before promulgating each decision, to obviate the necessity of issuing amended or "repromulgated" decisions increasing sentences of imprisonment. Trial courts should likewise note the dictum in Flores v. Dalisay (84 SCRA 46, 48).

"What the trial court should have done was to have categorically asked the counsel de oficio of the accused (who was not the counsel de oficio who handled the defense of the accused) whether or not he would appeal. Because the accused did not file any notice of appeal immediately after the judgment was promulgated, the trial court jumped to the conclusion that he had no intention of taking an appeal . . ."cralaw virtua1aw library

Considering the factual circumstances of this case, the low intelligence of the accused, and the gravity of the offense of parricide, it was the duty of the lower court on March 4, 1980 to ascertain whether or not the detention prisoner whose sentence of conviction had just been read intended to appeal. Upon the answer would have depended its power to modify the decision but within the period for the taking of an appeal.

WHEREFORE, the judgment of the Court of First Instance of Capiz finding the accused-appellant guilty beyond reasonable doubt of the crime of parricide and sentencing him to suffer the penalty of reclusion perpetua is hereby AFFIRMED. The accused-appellant is also ordered to indemnify the heirs of Prima Baltar Quibate in the sum of THIRTY THOUSAND (P30,000.00) PESOS.

SO ORDERED.

Fernando, C.J., Concepcion, Jr., Guerrero, Abad Santos, Melencio-Herrera, Plana, Relova, De la Fuerte, and Cuevas, JJ., concur.

Separate Opinions

AQUINO, J., concurring:chanrob1es virtual 1aw library

Judge Oscar Leviste’s decision dated March 3, 1980 was promulgated on the following day, March 4, in the absence of accused’s counsel, Antonio Bisnar. The accused (a registered voter who studied at the Elizalde Academy) refused to sign on the original copy of the decision as proof that he received a copy of the decision.

It is stated in the handwritten minutes of the incident that "when this case was called for promulgation of decision, the court interpreter read the whole decision and after which the dispositive part of the decision was translated to the accused. The Court sentences the accused (to) 12 years to 17 years. Later, the Court discovered that Atty. Bisnar, counsel de oficio for the accused, was not present in court. The Court appointed Atty. Jose Brotario as counsel de oficio for the purpose of promulgation. The dispositive portion of the decision was read to the accused."cralaw virtua1aw library

The said minutes were signed by the court interpreter. The deputy clerk of court executed a certification as to the promulgation and the refusal of the accused to affix his signature on the original copy.chanrobles law library

A few hours later on that same day, March 4, 1980, Judge Leviste issued an order cancelling the promulgation (1) due to the absence of Bisnar, the regular counsel de oficio, (2) the refusal of accused to sign as proof that he received a copy of the decision, (3) the imposition of the wrong penalty and (4) the fact "that the decision has not been filed."

In fact, the said decision is in the record but it contains numerous handwritten corrections made by Judge Leviste. It was retyped. The retyped decision, imposing reclusion perpetua, dated March 5, 1980, and the original decision of March 3, 1980 (with corrections) were both refiled in court at 4:30 p.m. on March 5, 1980.

Later, or on April 11, 1980, there was an oral motion to quash the second promulgation. It was denied by Judge Leviste in his order of June 9, 1980.

The corrected decision of March 5, 1980 was promulgated on June 13, 1980. The accused and his counsel signed the original copy of the said decision. The clerk of court certified to the promulgation on June 13, 1980. This was also signed by the accused (pp. 126-7, Record).

Written notices of the decision were sent to the fiscal, the warden and Bisnar on June 16, 1980. Bisnar filed his notice of appeal to the Court of Appeals.

The minutes of the proceeding on June 13, 1980 show that Bisnar objected to the promulgation of the corrected decision and insisted that the promulgation of the first decision was valid.

Judge Leviste had the power and jurisdiction to correct his decision of March 3, 1980 which was not yet officially filed. He corrected it on the same day and filed the corrected copy on March 5, 1980 together with the original decision of March 3, 1980.

"A judgment of conviction may be modified or set aside by the court rendering it before the judgment has become final or appeal has been perfected. A judgment in a criminal case becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or the defendant has expressly waived in writing his right to appeal." (Sec. 7, Rule 120, Rules of Court.)

The accused or his counsel should expressly inform the court that he does not want to appeal or is going to start serving his sentence. In the absence of such manifestation, the judge can change his decision within the reglementary fifteen-day period. It is not right to conjecture from the silence of the accused-detainee in the absence of his counsel that he started to serve his sentence. (People v. Español, G.R. No. 57597-99, June 29, 1982, 114 SCRA 911.)chanrobles virtual lawlibrary

In this case, counsel de oficio’s absence during the first promulgation rendered it uncertain whether or not the accused was going to appeal. The fact that he was a detention prisoner does not justify the conjecture that he did not appeal and that he had started the service of his sentence on March 4, 1980.

MAKASIAR, J., dissenting:chanrob1es virtual 1aw library

Appellant herein assigns two errors, one of which is the following:chanrob1es virtual 1aw library

I. The Court erred in motu proprio canceling the promulgation of decision on March 4, 1980.

I dissent from the resolution of the said assigned error.

On March 4, 1980, the trial court promulgated its decision convicting herein appellant of the crime of parricide and sentencing him to an indeterminate period of imprisonment of 12 years minimum to 17 years maximum. Thereafter, on the same date, the same court issued the following order:jgc:chanrobles.com.ph

"After promulgation of this case, the court motu proprio cancels the promulgation upon noting that the regular counsel de oficio, Atty. Antonio Bisnar was not around at the time and the accused refused to sign receipt of a copy of the decision and upon noting that there was a typographical error in the decision consisting of the wrong penalty and the court noting further that the decision has not been filed.

"Notifying accused and counsel of the new date of promulgation which is hereby set for March 20, 1980."cralaw virtua1aw library

After several subsequent resetting of the promulgation date, on June 13, 1980, the lower court promulgated a revised decision maintaining the conviction, but sentencing appellant to suffer the greater penalty of reclusion perpetua and to indemnify the heirs of the deceased.

The majority opinion sustains this second promulgation. That is double jeopardy.

The promulgation of March 4, 1980 was a valid promulgation. The reasons advanced by the trial court for its cancellation has no basis in law and in fact. The order of cancellation was issued in abuse of discretion, which this Court should not countenance.chanrobles lawlibrary : rednad

The discrepancy in the penalty imposed under the first and under the second promulgation can hardly be considered a typographical error.

That the decision promulgated on March 4, 1980 had not as yet been filed, is not by itself a ground for withdrawing or canceling the first promulgation, which was a valid and effective promulgation. Even an oral promulgation of an unwritten decision is valid (Cinco v. Cea, 96 Phil. 131; Catilo v. Abaya, 94 Phil. 1014).

The promulgation of March 4, 1980 complies with the requirements of Section 6, Rule 120 of the Rules of Court, to wit:jgc:chanrobles.com.ph

"The judgment is promulgated by reading the judgment or sentence in the presence of the defendant and any judge of the court in which it is rendered. The defendant must be personally present if the conviction is for a grave offense; if for a light offense the judgment may be pronounced in the presence of his attorney or representative. And when the judge is absent or outside of the province or city, his presence is not necessary and the judgment may be promulgated or read to the defendant by the clerk of court.

"If the defendant is confined or detained in another province or city, the judgment of conviction may be promulgated by the judge of the Court of First Instance having jurisdiction over the place of confinement or detention upon the request of the court that rendered the judgment. The court promulgating the judgment shall have the authority to accept the notice of appeal and to approve the bond."cralaw virtua1aw library

Clearly, it is not necessary that defendant’s counsel be present at the time of promulgation of the judgment. Where the judgment is one of conviction for a grave offense, all that is required is that the defendant be personally present in court at the time of promulgation. Where the judgment is one of acquittal, the presence of the defendant during promulgation is not at all required in any case (Cinco v. Cea, L-7075, November 18, 1954, 96 Phil. 131). Here, all that is required is that a copy of the judgment be served on said acquitted defendant (Ibid.). This notwithstanding, it is noted from the records of this case that a counsel de oficio for the purpose of promulgation (Atty. Jose Brotarlo) was in fact afforded the defendant prior to the promulgation of judgment conducted on March 4, 1980 (p. 108, CFI rec.).

Finally, there is no hint from the above-cited provision that the defendant’s signature evidencing receipt of a copy of the decision is necessary to effect a valid promulgation of judgment. In the case at Talabon v. Iloilo Provincial Warden (44 No. 11 O.G. 4326), this Court upheld the validity of a promulgation of a verbal judgment of conviction. Failure on the part of the court to comply with Section 2, Rule 120 of the Rules of Court and the Constitution did not divest the lower court of its jurisdiction acquired over the offense and the petitioner (Ibid.). By inference, the lack of defendant’s signature evidencing receipt of a written copy of a decision does not render invalid and inefficacious the promulgation thereof.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

Concededly, under Section 7 of the same Rule, "a judgment of conviction may be modified or set aside by the court rendering it before judgment has become final or appeal has been perfected." But such "discretion" afforded a judge means sound discretion exercised, not arbitrarily or willfully, but with regard to what is right and equitable under the circumstances and the law, and directed by the judge’s reason and conscience to just result (12A Words and Phrases 344). Evidently however, the order of cancellation issued by the trial court above does not conjure with the circumstances of and the law pertinent to the case as above described. The discretion granted by the Rules, having been exercised to an end not justified by the evidence, the order of cancellation being clearly against the logic and effect of the facts as are found, this Court should reverse the same (1 Words and Phrases 341). The order of cancellation is null and void for having transpired from an improvident exercise of discretion.

It is noted that the discretion provided the court under Section 7 of Rule 120 cannot be exercised in case of a valid promulgation of a judgment of acquittal (Catilo v. Abaya, No. L-6921, May 14, 1954; 94 Phil. 1014). The promulgation therein cannot be cancelled even on the ground of misrepresentation of facts and misappreciation of evidence. Here, the first jeopardy is terminated, and a subsequent modification of the said judgment would result in double jeopardy.

Cabarroguis v. Judge San Diego (G.R. No. L-19517, November 30, 1962, 116 Phil. 1184) does not apply to the present case to validate the second promulgation of June 13, 1980. In Cabarroguis, the respondent judge dictated in open court her order of acquittal even before the direct testimony of the lone witness for the prosecution could be completed. Upon prompt oral motion for reconsideration by the prosecution, the court "withdrew" its order. Thereupon, direct examination resumed. Counsel for the defendant afterwards cross examined the witness. During the day’s proceedings, no objection thereto was heard from the defendant’s counsel. Thus, as ruled by this Court, "petitioner’s failure to object, at that time, to the taking of said evidence for the prosecution, and the cross examination of complainant by counsel for the petitioner amounted therefore, to a waiver of her constitutional right against double jeopardy (People v. Casiano, L-15309, February 16, 1961; 14 Am. Jur. 958).

Petitioner did not invoke such right until about a week later, or on March 7, 1962, when the hearing resumed for the reception of the evidence for the defense. The objection then made by her came too late in view of her aforementioned waiver" (Ibid.).

In the present case, however, the promulgation of judgment on March 4, 1980 was conducted after both the prosecution and the defense had rested their case. Defendant, assisted by a counsel de oficio (although not his regular counsel de oficio), was present during the promulgation. Thereafter, said defendant promptly returned to his cell. Upon receipt of the court’s order canceling said promulgation, Atty. Bisnar, defendant’s regular counsel de oficio, promptly and vehemently objected to the same. He reiterated his objections to said order of cancellation and second promulgation on June 13, 1980. Clearly, having promptly invoked his right against double jeopardy, defendant should benefit therefrom.chanrobles virtual lawlibrary

Perforce, the promulgation of judgment on March 4, 1980 stands undisturbed by the trial court’s subsequent cancellation thereof. Fifteen days after said date, and no appeal having been taken by the defendant, the judgment thereby promulgated became final.

Some discussion was focused on whether or not the defendant, by returning to his detention cell after promulgation of judgment on March 4, 1980, commenced to serve the sentence under said promulgation. Consonant with OUR basic criminal law doctrine that doubts should be interpreted in favor of the accused, the equivocal gesture of the accused should be interpreted as an act to commence the service of his sentence. The penalty imposed under the promulgation of March 4, 1980 was clearly lighter than what is prescribed by the law. To immediately submit to it, doubtless, would favor the accused.

This dissent notes the oral motion to quash the second promulgation of Atty. Antonio Bisnar, regular counsel de oficio of the accused, on April 11, 1980 (p. 121, CFI rec.), and his subsequent objection to said second promulgation on June 13, 1980 (p. 129, CFI rec.). These facts support the position that the accused returned to his cell after the promulgation of March 4, 1980 with the intention to commence the service of his sentence.

Nonetheless, the incontrovertible fact under the circumstances is that 15 days after the promulgation of March 4, 1980, with the defendant not having taken an appeal from the decision promulgated, the same became final. Thereafter, the trial court lost its control and jurisdiction over the case, and the trial judge could no longer modify nor set aside the judgment rendered therein (U.S. v. Vayson [1914], 27 Phil. 447). The subsequent promulgation of a revised decision on June 13, 1980, three months after the first promulgation, is null and void.chanrobles law library : red

By sustaining the second promulgation, this Court countenances a second jeopardy cutting deep into the constitutional protection against double jeopardy. There is no question that a first jeopardy attached. The same was terminated 15 days after judgment thereon was promulgated on March 4, 1980. Any substantial modification by increasing the penalty decreed in such decision after March 19, 1980 would amount to double jeopardy (Gregorio v. Director of Prisons, 43 Phil. 650).

Teehankee, J., dissents.

ESCOLIN, J., dissenting:chanrob1es virtual 1aw library

I dissent. The records disclose that after the promulgation of the first decision on March 4, 1980, petitioner did not manifest his desire to appeal and was therefore committed to jail; that the 15-day period to appeal lapsed without petitioner having perfected his appeal; and that before the promulgation of the new decision on June 30, 1980, he vehemently objected to the cancellation of the March 4, 1980 promulgation as well as the promulgation of the new judgment. Surely, any doubt as to the conclusion to be drawn from this factual setting should be resolved in favor of the petitioner’s posture that he immediately commenced service of sentence after the promulgation of the first decision, and that therefore the same became final in accordance with the rule that a judgment in a criminal case becomes final when the sentence has been partially served. [Section 7, Rule 120 of the Rules of Court].

The controversy in this case is between an uncle, respondent SANTIAGO Tero, and his nephews and niece, petitioners FELIX Tero, et al, the children of his brother SIMEON Tero. It would appear that the parents of SANTIAGO and SIMEON were FAUSTO Tero and Gabriela Pacaldo. The subject of the litigation is the ownership of a parcel of land of about 1.3610 hectares (hereinafter referred to as the PROPERTY) situated in Isabel (formerly Merida), Leyte. It is in this town that the Government has recently established the country’s first and only copper smelter.

The contending parties are agreed that the PROPERTY was originally owned by FELIPE Juegos. The claim of FELIX (the name includes his brothers and sister as the context may indicate) is based on Exhibit "D", an official AFFIDAVIT OF TRANSFER OF REAL PROPERTY (Provincial Form No. 9), dated March 15, 1917, which contains a BUYER’S AFFIDAVIT, subscribed by SIMEON to the effect that he had bought the PROPERTY from Felipe Juegos, and a SELLER’S AFFIDAVIT, subscribed by the said Felipe Juegos to the effect that he had sold the PROPERTY to SIMEON. Said Exhibit "D" is the only solid evidence in this case. SIMEON, in 1917, declared the PROPERTY as his in Tax Declaration No. 1423. When SIMEON died in 1944, the PROPERTY became owned in common by his children; that is by FELIX and his brothers and sister.

The claim of SANTIAGO is based on Exhibit "2", an unsigned affidavit of Magdalena Tero, then a widow, dated November 6, 1953. In that affidavit, it was stated that in 1927 Magdalena and her husband, Pedro Amodia, became the mortgagees of the PROPERTY for the sum of P40.00, through a verbal contract in their favor made by FAUSTO and his wife who had purchased said PROPERTY from Felipe Juegos; that, after the death of FAUSTO, SANTIAGO, in representation of his brothers and sisters, as heirs of FAUSTO, had wanted to redeem the PROPERTY now (that is, in November, 1953); that the mortgage right had already been transferred to Cristeta Amodia, the daughter of Magdalena, who had subsequently sold the PROPERTY to Benjamin Amodia; and that SANTIAGO could still redeem the PROPERTY by paying the mortgage debt of P40.00, presumably to her or to Cristeta, but not to Benjamin.

On the basis of the above-stated facts alone, there can be no question but that FELIX and his brothers and sister should be declared the owners of the PROPERTY. The affidavit of Magdalena Tero, even if confirmed by her oral testimony (but which was not given on the witness stand), cannot defeat the AFFIDAVIT of TRANSFER OF REAL PROPERTY, Exhibit "D." For one thing, FAUSTO, not being the owner, could not have mortgaged the PROPERTY to Magdalena and her husband. In 1927, as now, there could not be an oral mortgage.chanrobles law library

What has to be determined is whether or not after FELIX became the owner of the property in 1944, events transpired such that dominion over the PROPERTY has to be deemed to have vested in SANTIAGO. Those events, which can be taken into account, are as follows:chanrob1es virtual 1aw library

1. On January 18, 1953, even before the alleged execution of the affidavit of Magdalena Tero on November 6, 1953, SANTIAGO declared the PROPERTY as belonging to him through Tax Declaration No. 4301 (Exhibit "1"). In said Tax Declaration, it was stated by the assessor that he inspected the PROPERTY on November 18, 1953 and found that it had not been previously declared for taxation, thus ignoring Tax Declaration 1423 in the name of SIMEON.

2. As previously stated, SANTIAGO has based his claim to ownership of the PROPERTY on the execution on November 6, 1953 of the alleged affidavit of Magdalena Tero (Exhibit "2"). What may be pointed out is that, according to the affidavit itself, SANTIAGO had approached Magdalena Tero "in representation of his brothers and sisters," "the heirs or legitimate children of FAUSTO." FELIX has to be included among those heirs.

3. On August 6, 1957, Felipe Amodia and Benjamin Amodia, claiming to be owners of the PROPERTY, filed suit against SANTIAGO and FELIX and prayed that they, Felipe Amodia and Benjamin Amodia, be declared the absolute owners of the PROPERTY (hereinafter referred to as the AMODIA SUIT). This case was apparently instituted because, as stated in the affidavit of Magdalena Tero, her daughter Cristeta Amodia had sold the PROPERTY to Benjamin Amodia.

4. On August 18, 1958, Hermogenes Bazarte and Leodegario Denoy declared the PROPERTY as belonging to them in Tax Declaration No. 4642 (Exhibit "P").

5. On January 22, 1959, the AMODIA SUIT was decided on a compromise agreement wherein it was stated that SANTIAGO and FELIX "are now the absolute and true owners and possessors of the land" (Exhibit "5").

6. On November 13, 1973, FELIX commenced a suit for forcible entry against SANTIAGO before the Municipal Court of Isabel (the FORCIBLE ENTRY CASE). On January 31, 1974, the Municipal Court dismissed the case after finding that SANTIAGO "is in actual, continuous and physical possession of the subject matter of this litigation prior to January 22, 1959 up to the present time."cralaw virtua1aw library

7. FELIX appealed from the decision of the Municipal Court to the Court of First Instance of Leyte. On March 25, 1974, FELIX filed a Complaint before the Court of First Instance of Leyte against SANTIAGO for quieting of title with the principal prayer that FELIX be declared the owner of the PROPERTY (the TITLE CASE).

8. Three (3) days after March 25, 1914, or on March 28, 1974, the Court of First Instance dismissed the appeal in the FORCIBLE ENTRY CASE, disregarding a plea that the said case be considered jointly with the TITLE CASE previously filed on March 25, 1974.

9. On July 24, 1974, the TITLE CASE was decided against FELIX, with the Trial Court stating that "as early as 1950, defendant has declared the land for taxation purposes."cralaw virtua1aw library

10. The decision of the Trial Court in the TITLE CASE was appealed to the then Court of Appeals which, in 1980, affirmed the decision of the Trial Court, stating inter alia, that:jgc:chanrobles.com.ph

"On the other hand, ordinary acquisitive prescription of immovables and other real rights thru adverse possession of ten years requires possession ‘in good faith and with just title for the time fixed by law’ (Negrete v. Court of First Instance of Marinduque, L-31267, Nov. 24, 1972, 48 SCRA 113). The parcel of land in question was possessed by appellee in the concept of owner openly, publicly and adversely against the whole world since he acquired the same from Benjamin Amodia who in turn bought it from Cristeta Amodia. The latter also got the property as her share in the inheritance from her mother Magdalena Tero, who was in possession thereof as owner, openly and adversely. It is clear, therefore, that appellee acquired possession and ownership of the property in question through acquisitive prescription."cralaw virtua1aw library

It is our opinion that the events which had transpired after 1944 as mentioned above have not vested title to the PROPERTY in SANTIAGO. Article 712 of the Civil Code provides:chanrobles law library

"ART. 712. Ownership is acquired by occupation and by intellectual creation.

"Ownership and other real rights over property are acquired and transmitted by law, by donation, by testate and intestate succession, and in consequence of certain contracts, by tradition.

"They may also be acquired by means of prescription."cralaw virtua1aw library

The only way SANTIAGO could have acquired title to the PROPERTY is through prescription, the mode sustained by the Appellate Court. We find its conclusion untenable.

Under Article 117 of the Civil Code, SANTIAGO’s possession of the PROPERTY, if he was indeed ever in possession, was not in good faith and with just title. On January 18, 1953, he had already claimed that he was the owner of the PROPERTY, that is, before he had allegedly redeemed the PROPERTY from Magdalena Tero or Cristeta Amodia after November 6, 1953. Further, it cannot be assumed, under Article 1127, that SANTIAGO had "reasonable belief that the person from whom he received the thing was the owner thereof, and could transmit his ownership." On the very face of the alleged affidavit of Magdalena Tero, it appears that she was only a mortgagee and, hence, was not the owner and could not transmit the ownership of the PROPERTY. Lastly, Magdalena’s affidavit, Exhibit "2", not having been signed, and Magdalena not having confirmed the affidavit in testimony before the Trial Court, it could not even be presumed that there was a grantor to SANTIAGO under Article 1129. 1

SANTIAGO’s possession was not peaceful and continuous. Not peaceful because it was questioned in the AMODIA SUIT during the period August 6, 1957 to January 22, 1959. Then, in his Motion of September 17, 1974 for execution of judgment pending appeal, SANTIAGO said, he "has been deprived of the possession and enjoyment of the property" for quite a considerable length of time." We have also looked at the pictures Exhibits "D", "E" and "F", taken on June 4, 1974, of three (3) houses standing on the PROPERTY, and have found them to be houses apparently constructed long before the mentioned date of June 4, 1974. Verily, it is not clear that SANTIAGO had been in possession of the PROPERTY for the total prescriptive period of ten (10) years.

The lower Courts have not viewed SANTIAGO’s claim to title over the PROPERTY as a claim of one co-owner against the other co-owners. When SANTIAGO redeemed the property from Cristeta Amodia or from Benjamin Amodia, he did so in representation of the heirs of FAUSTO, FELIX among them. Even giving substance to the claim of SANTIAGO, it has to be held that, through the redemption, he became only a co-owner. In the compromise agreement in the AMODIA SUIT, SANTIAGO also acknowledged that he and FELIX were co-owners of the PROPERTY. "No prescription shall run in favor of a co-owner or co-heir against his co-owners or co-heirs so long as he expressly or impliedly recognizes the co-ownership." 2 The only time it can be assumed that SANTIAGO had denounced the co-ownership was when he filed an Answer on November 16, 1973 in the FORCIBLE ENTRY CASE (Exhibit "8").

WHEREFORE, the judgment of respondent Appellate Court is hereby REVERSED and SET ASIDE and petitioners are hereby declared as the actual possessors and the rightful owners of the parcel of land herein questioned. Tax Declaration No. 4301 issued in the name of private respondent SANTIAGO TERO is hereby ordered cancelled.chanrobles lawlibrary : rednad

Costs against private respondent SANTIAGO TERO.

SO ORDERED.

Plana, Relova, Gutierrez, Jr. and De la Fuente, JJ., concur.

Teehankee, J., took no part.

Endnotes:

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1. "ART. 1129. For the purposes of prescription, there is just title when the adverse claimant came into possession of the property through one of the modes recognized by law for the acquisition of ownership or other real rights, but the grantor was not the owner or could not transmit any right."cralaw virtua1aw library

2. Article 494, Civil Code.