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EVIDENCE DOCUMENTARY EVIDENCE

G.R. No. 83377 February 9, 1993


BASILIO DE VERA, LUIS DE VERA, FELIPE DE VERA, HEIRS OF EUSTAQUIA DE VERA-PAPA
represented by GLICERIA PAPA-FRANCISCO, et al., petitioners,
vs.
SPOUSES MARIANO AGUILAR and LEONA V. AGUILAR, respondents.
Pablo M. Gancayaco for petitioners.
De Mesa, Villarica & Associates for respondents.

CAMPOS, JR., J.:


This is a petition for review on certiorari of the decision * of the Court of Appeals dated November
27, 1987 in CA-GR CV No. 07448 entitled, "Basilio de Vera, Luis de Vera, Felipe de Vera, Heirs of
Eustaquia de Vera-Papa, represented by Gliceria Papa-Francisco, and Heirs of Maria de VeraTorres, represented by Luis V. Torres, plaintiffs-appellees versus Spouses Mariano Aguilar and
Leona V. Aguilar, defendants-appellants", which reversed the decision ** of the Regional Trial Court
of Bulacan, Third Judicial Region, Branch 14, for failure of petitioners to prove the loss or destruction
of the original deed of sale and of all its duplicate original copies.
The undisputed facts are as follows:
Petitioners Basilio, Luis, Felipe, Eustaquia and Maria, all surnamed de Vera and respondent Leona,
married to respondent Mariano Aguilar, are the children and heirs of the late Marcosa Bernabe who
died on May 10, 1960. In her lifetime, Marcosa Bernabe owned the disputed parcel of land situated
in Camalig, Meycauayan, Bulacan, with an area of 4,195 square meters, designated as Cadastral
Lot No. 3621, Cad. 337, Case No. 4, Meycauayan Cadastre.
The disputed property was mortgaged by petitioners Basilio and Felipe de Vera to a certain Atty.
Leonardo Bordador. When the mortgage had matured, the respondents redeemed the property from
Atty. Leonardo Bordador and in turn Marcosa Bernabe sold the same to them as evidenced by a
deed of absolute sale dated February 11, 1956.
On February 13, 1956, the respondents registered the deed with the Registry of Deeds of Bulacan
resulting in the cancellation of the tax declaration in the name of Marcosa Bernabe and the issuance
of another in the name of the Aguilars. Since then and up to the present, the Aguilars have been
paying taxes on the land.
On July 20, 1977, respondent Mariano Aguilar was issued a free patent to the land on the basis of
which Original Certificate of Title No. P-1356(M) was issued in his name.

On September 1, 1980, the petitioners wrote to the respondents claiming that as children of Marcosa
Bernabe, they were co-owners of the property and demanded partition thereof on threats that the
respondents would be charged with perjury and/or falsification. The petitioners also claimed that the
respondents had resold the property to Marcosa Bernabe on April 28, 1959.
On September 27, 1980, the respondents wrote in reply to the petitioners that they were the sole
owners of the disputed parcel of land and denied that the land was resold to Marcosa Bernabe.
True to petitioners' threat, they filed a falsification case against the respondents. However, on March
31, 1981, Assistant Provincial Fiscal Arsenio N. Mercado of Bulacan recommended dismissal of the
charge of falsification of public document against the respondents for lack of a prima facie case.
On March 26, 1981, petitioners filed a suit for reconveyance of the lot covered by Original Certificate
of Title No. P-1356(M).
On July 31, 1985, the trial court rendered its decision *** the dispositive portion of which reads as follows:
WHEREFORE, judgment is hereby rendered ordering defendants:
1. To reconvey the property in question to the plaintiffs;
2. To pay plaintiffs P10,000.00 as litigation expenses;
3. To pay plaintiffs P5,000.00 as exemplary damages;
4. To pay P10,000.00 as attorney's fees.
SO ORDERED. 1
In ruling in favor of the petitioners, the trial court admitted, over the objection of the respondents,
Exhibit A purporting to be a xeroxed copy of an alleged deed of sale executed on April 28, 1959 by
the respondents selling, transferring and conveying unto Marcosa Bernabe the disputed parcel of
land for and in consideration of P1,500.00.
Not contented with the decision, respondents appealed to the Court of Appeals contending that they
never sold back to Marcosa Bernabe the disputed parcel of land. Furthermore, respondents
contended that since the petitioners have failed to produce the original of the alleged deed of sale
dated April 28, 1959, the same was not the best evidence of the alleged sale hence it should have
been excluded and should not have been accorded any evidentiary value. On the other hand, the
petitioners claimed that the existence of the document of sale dated April 28, 1959 had been duly
established by the testimony of the notary public before whom it was acknowledged and by Luis de
Vera who was present during its execution and that the loss of the original document had been
proven by the testimony of the representatives of the offices of the National Archives and the
Provincial Assessor of Bulacan.

On November 29, 1987, the Court of Appeals rendered its decision reversing the trial court's
decision. It found that the loss or destruction of the original deed of sale has not been duly proven by
the petitioners. Hence, secondary evidence, i.e., presentation of the xeroxed copy of the alleged
deed of sale is inadmissible.
Hence this petition.
The crux of this case is whether or not the petitioners have satisfactorily proven the loss of the
original deed of sale so as to allow the presentation of the xeroxed copy of the same.
We rule in the negative.
Section 4 of Rule 130 (now Section 5, Rule 130) of the Rules of Court on Secondary Evidence
states:
Sec. 4. Secondary evidence when original is lost or destroyed. When the original
writing has been lost or destroyed, or cannot be produced in court, upon proof of its
execution and loss or destruction, or unavailability, its contents may be proved by a
copy, or by a recital of its contents in some authentic document, or by the recollection
of witnesses.
Secondary evidence is admissible when the original documents were actually lost or destroyed. But
prior to the introduction of such secondary evidence, the proponent must establish the former
existence of the instrument. The correct order of proof is as
follows: Existence; execution; loss; contents although this order may be changed if necessary in the
discretion of the court. The sufficiency of proof offered as a predicate for the admission of an alleged
lost deed lies within the judicial discretion of the trial court under all the circumstances of the
particular case. 2
A reading of the decision of the trial court shows that it merely ruled on the existence and due
execution of the alleged deed of sale dated April 28, 1959. It failed to look into the facts and
circumstances surrounding the loss or destruction of the original copies of the alleged deed of sale.
In the case at bar, the existence of an alleged sale of a parcel of land was proved by the
presentation of a xeroxed copy of the alleged deed of absolute sale.
In establishing the execution of a document the same may be established by the person or persons
who executed it, by the person before whom its execution was acknowledged, or by any person who
was present and saw it executed or who, after its execution, saw it and recognized the signatures; or
by a person to whom the parties to the instrument had previously confessed the execution thereof. 3
We agree with the trial court's findings that petitioners have sufficiently established the due
execution of the alleged deed of sale through the testimony of the notary public to wit:
Preponderance of evidence clearly disclosed the facts that Atty. Ismael Estela
prepared Exhibit A. Atty. Emiliano Ibasco, Jr. positively identified the signatures

appearing therein to be that (sic) of the spouses and witnesses Luis de Vera and
Ismael Estela, in his capacity as Notary Public who ratified the document. 4
After the due execution of the document has been established, it must next be proved that said
document has been lost or destroyed. The destruction of the instrument may be proved by any
person knowing the fact. The loss may be shown by any person who knew the fact of its loss, or by
any one who had made, in the judgment of the court, a sufficient examination in the place or places
where the document or papers of similar character are usually kept by the person in whose custody
the document lost was, and has been unable to find it; or who has made any other investigation
which is sufficient to satisfy the court that the instrument is indeed lost. 5
However, all duplicates or counterparts must be accounted for before using copies. For, since all the
duplicates or multiplicates are parts of the writing itself to be proved, no excuse for non-production of
the writing itself can be regarded as established until it appears that all of its parts are unavailable
(i.e. lost, retained by the opponent or by a third person or the like). 6
In the case at bar, Atty. Emiliano Ibasco, Jr., notary public who notarized the document testified that
the alleged deed of sale has about four or five original copies. 7 Hence, all originals must be accounted
for before secondary evidence can be given of any one. This petitioners failed to do. Records show that
petitioners merely accounted for three out of four or five original copies.
In reversing the trial court, the respondent Court of Appeals considered the following points:
Asked on the witness stand where the original of the document (Exhibit A) was,
plaintiff-appellee Luis de Vera answered that it was with the Provincial Assessor in
Malolos, Bulacan, whereupon the appellees reserved its (sic) right to present it in
evidence (p. 11, tsn., August 11, 1981, Steno, Tecson). The same question
propounded to the same witness at the next hearing, he replied that in the early part
of 1976 his sister Maria borrowed from him the original document and a certified true
copy thereof and brought them to the Office of the Register of Deeds in Malolos "for
the purpose of having it registered;" and that when she returned she told him that the
original copy of the document was submitted to that office "and it (the property) was
transferred in the name of Marcosa Bernabe instead of Mariano Aguilar" (p. 8, tsn.,
December 10, 1981, Steno, Crisostomo; p. 9, tsn., Mar. 16, 1982, Steno, Vallarta).
Indeed, upon the appellees' own evidence the original of the deed of sale in
question, a purported xerox copy and certified true copy of which are marked as
Exhibits A and B, has not been lost or destroyed. It was submitted to the Office of the
Register of Deeds of Malolos for registration. The appellees, therefore, should have
asked the office to produce it in court and if it could not be produced for one reason
or another should have called the Register of Deeds or his representative to explain
why. That they failed to do. The loss or destruction of the original of the document in
question has not, therefore, been established. Hence, secondary evidence of it is
inadmissible . . . .

Neither did the testimony of notary public Ibasco, Jr. to the effect that he did not have
a copy of the deed of sale in question because his files were burned when his office
at Ronquillo Street, Manila was gutted by fire in 1971 and 1972 (p. 4, tsn., November
10, 1981, Steno, Crisostomo) establish the loss or destruction of the original
document in question. What was lost or destroyed in the custody of Atty. Ibasco, Jr.
was but one of the duplicate original copies on file with him. Nor did the testimony of
Hipolito Timoteo, representative of the Assessor's Office of Bulacan, to the effect that
he failed to see the deed of absolute sale annotated on the simple copy of tax
declaration No. 15412 (p. 7, tsn., Aug. 12, 1982, Steno, Vallarta) and of David
Montenegro, Jr. of the National Archives to the effect that his office had no copy of
the document in question because the notary public might not have submitted a copy
thereof; or that it was lost or destroyed during the transmittal; and that most of the
record before 1960 were destroyed by termites (pp. 8-12, tsn., Oct. 5, 1982, Steno,
Tecson), prove loss or destruction of the original and of all the duplicate original
copies of the document in question. 8
We find no cogent reason to rule otherwise.
WHEREFORE, the decision of the Court of Appeals dated November 27, 1987 is hereby
AFFIRMED.
SO ORDERED.

[G.R. No. 150905. September 23, 2003]

CITIBANK,
N.A.
MASTERCARD, petitioner,
TEODORO, respondent.

vs. EFREN

S.

DECISION
PANGANIBAN, J.:

Before secondary evidence may be admitted to prove the contents of


original documents, the offeror must prove the due execution and the
subsequent loss or unavailability of the original.
The Case
The Petition for Review before us assails the July 31, 2001 Decision and
the November 22, 2001 Resolution of the Court of Appeals (CA) in CA-GR
SP No. 62891. The dispositive portion of the challenged Decision reads as
follows:
[1]

[2]

[3]

WHEREFORE, premises considered, the Petition is GRANTED; and


the Decisions of the trial courts are hereby REVERSED and SET ASIDE. No costs.

[4]

The assailed Resolution denied petitioners Motion for Reconsideration.


The Facts
Petitioner operates a credit card system through which it extends credit
accommodations to its cardholders for the purchase of goods and services
from its member establishments. The purchases are later on paid for by
cardholders upon receipt of the billings or statements of account from the
company. Respondent Efren S. Teodoro was one such cardholder. On
December 14, 1990, he applied for membership with petitioner. After his
application was approved, he was issued Citibank, N.A. Mastercard No. 54233920-4457-7009.
Under the terms and conditions governing the use of the Citibank credit
card, the cardholder undertakes to pay all the purchases made using the card
within the period indicated on the statement of account or within thirty (30)
days from the date or dates of its use. Charges that remain unpaid within the
period fixed in the monthly statement of account shall earn interest at the rate
of 3.5 percent per month plus a penalty fee equivalent to 5 percent of the
amount due for every month or even a fraction of a months delay.
Respondent made various purchases through his credit card. Accordingly,
he was billed by petitioner for those purchases, for which he tendered various
payments.
Petitioner claims that as of January 20, 1995, the obligations of
respondent stood at P191,693.25, inclusive of interest and service
charges. Several times it demanded payment from him, but he refused to pay,
claiming that the amount demanded did not correspond to his actual
obligations. His refusal prompted petitioner to file a Complaint for collection on
January 25, 1996 before the Regional Trial Court (RTC) of Makati City. The
case was docketed as Civil Case No. 96-092 and raffled to Branch 133.

The RTC, in an Order dated April 23, 1996, dismissed the Complaint for
lack of jurisdiction over the amount involved. The case was then transferred to
the Metropolitan Trial Court (MTC) of Makati City, where it was docketed as
Civil Case No. 51586 and raffled to Branch 66.
During the trial, petitioner presented several sales invoices or charge slips,
which added up to only P24,388.36. Although mere photocopies of the
originals, the invoices were marked in evidence as Exhibits F to F-4. Because
all these copies appeared to bear the signatures of respondent, the trial court
deemed them sufficient proof of his purchases with the use of the credit
card. Accordingly, the MTC in its July 25, 2000 Decision ordered him to pay
petitioner the amount of P24,388.36 plus interest and penalty fee. The
material portion of the Decision reads:
[5]

[Petitioner] is claiming that [respondent] made use of its credit card. And as of
January 20, 1995, [respondents] obligation to [petitioner] ballooned to the sum of
P191,693.25.
This is clear according to [petitioner] as shown by the Statement of Accounts.
To the mind of this Court, the Statement of Account alone will not prove that
[respondent] has an outstanding obligation to [petitioner] in the amount of
P191,693.95. This must be substantiated by the Sales Invoices which unearthed the
purchases made by [respondent] when he availed himself of the credit card of
[petitioner].
While it is true that [petitioner] has offered the Sales Invoices (Exhibits F, F-1, F-4) to
show the purchases made by [respondent], it is equally true also that adding all the
amount in said invoices, the sum of P191,693.95 which according to [petitioner] is the
outstanding obligation of [respondent], is hardly met. [Petitioner] even admitted that it
could not produce all the invoices. Without the other Sales Invoices, there is a cloud
of doubt hovering over the claim of [petitioner] to [respondent].
In fact, summing up all the amount[s] indicated in the aforesaid Sales Invoices the fact
that the [respondent] has incurred to [petitioner] an obligation in the amount of
P24,388.36 as a result of the formers availment of the credit card of the latter.

It is elementary procedure that [petitioner] must prove [its] case with preponderance
of evidence. Without all the other Sales Invoices to uncover the purchases made by
[respondent] when he used the credit card of [petitioner], it is undeniable x x x that
[petitioner] is caught in the web of doubt with respect to the accuracy of its claim to
the [respondent].
WHEREFORE, premises considered, this Court hereby renders judgment as follows:
1. Ordering [respondent] to pay [petitioner] P24,388.36 with an interest of 3.5% and a
penalty fee equivalent to another 5% of the amount due for every month due or a
fraction of a months delay starting February 21, 1995 until the entire obligation is
fully paid;
2. Ordering [respondent] to pay [petitioner] 25% of any and all amounts due and
payable as agreed attorneys fees plus cost of suit.
[6]

Thereafter, respondent appealed the MTC judgment to the RTC of Makati


City, where the appeal was docketed as Civil Case No. 00-1051 and raffled to
Branch 146. In its October 30, 2000 Decision, the RTC affirmed the MTC
Decision in toto.
[7]

Ruling of the Court of Appeals


The focal issue of the case according to the CA was whether the
photocopies of the sales invoices or charge slips, marked as Exhibits F to F-4,
were competent proofs of the obligations of respondent. These were the only
evidence presented by petitioner that could prove the actual amount of
obligation he had incurred in favor of the former. In reversing the trial courts,
the CA ruled that this evidence was insufficient to prove any liability on
respondents part.
According to Sections 3 and 5 of Rule 130 of the Rules of Court, whenever
the subject of inquiry is the content of a document, its original must be
produced, as it is the best evidence to prove such content. Secondary
evidence, like the subject photocopies, is inadmissible. It will be admissible
only if the offeror proves (a) any of the exceptions enumerated in Section 3
and (b) the conditions for its admissibility set forth in Section 5 of Rule

130. For secondary evidence to be admissible, there must be satisfactory


proof of (1) the due execution of the original; (2) the originals loss, destruction
or unavailability that is not due to the offerors bad faith; and (3) reasonable
diligence and good faith in the search for or attempt to produce the original.
Although petitioner was able to prove the existence of the original sales
invoices, it failed to prove their due execution or to account for their loss or
unavailability.
Hence, this Petition.

[8]

Issues
Petitioner raises the following issues for our consideration:
I. Whether or not the Court of Appeals erred in reversing and setting aside the decision
of the trial courts for insufficiency of evidence to support its findings.
II. Whether or not the Court of Appeals erred in holding that petitioner failed to prove
the due execution and the cause of the unavailability and non-production of the
charge slips marked in evidence as Exhibits F to F-4.[9]

In brief, the main issue boils down to whether the photocopies of the sales
invoices or charge slips marked during trial as Exhibits F to F-4 are admissible
in evidence.
The Courts Ruling
The Petition has no merit.
Main Issue:
Admissibility of Photocopies
Petitioner contends that the testimony of its principal witness - Mark
Hernando, assistant manager of Citibank, N.A. Mastercard -- proves the
following:
[10]

a) the existence or due execution of the original sales invoices which sufficiently proved
respondents liability of P24,388.36;

b) the loss or unavailability of the original sales invoices; and


c) petitioners reasonable diligence and good faith in the search for or attempt to
produce the originals.

It further argues that Hernando competently identified the signatures of


respondent on the sales invoices, having recognized them as identical to the
signature on the latters credit card application form.
On the other hand, respondent maintains that petitioner failed to prove the
due execution of the sales invoices. According to him, Hernando was not privy
to such execution and could not have properly or competently declared that
the signatures on the invoices and on the application form belonged to the
former. The latter was not the person before whom the application form was
signed, executed or acknowledged; he was not even present then. As to the
sales invoices and respondents alleged signatures thereon, he saw them only
after the Complaint had been filed in court or long after those invoices had
been executed. He was therefore not competent to identify the signatures.
Because Hernandez had not actually witnessed the execution of the sales
invoices and the application form, respondent concludes that petitioner failed
to observe Section 5 of Rule 130 of the Rules of Court, which provides that
the contents of the original may be proven by the testimony of witnesses.
Finally, respondent contends that the alleged loss or unavailability of the
original sales invoices was not sufficiently established. Allegedly, Hernandez
had requested the originals from Equitable Credit Card Network, Inc., but
failed to show in court that he had followed up his request as advised by
another witness, Zen Hipolito. Therefore, the requirement of reasonable
diligence and good faith in the search for or attempt to produce the originals
was not satisfied, because he had shown no proof of having followed up the
request.
The burden of proof rests upon petitioner, as plaintiff, to establish its case
based on a preponderance of evidence. It is well-settled that in civil cases, the
party that alleges a fact has the burden of proving it. Petitioner failed to prove
that respondent had an obligation in the principal amount of P24,388.36,
because the photocopies of the original sales invoices it had presented in
[11]

court were inadmissible in evidence. Moreover, had they been admissible,


they would still have had little probative value.
[12]

The original copies of the sales invoices are the best evidence to prove
the alleged obligation. Photocopies thereof are mere secondary evidence. As
such, they are inadmissible because petitioner, as the offeror, failed to prove
any of the exceptions provided under Section 3 of Rule 130 of the Rules of
Court, as well s the conditions of their admissibility. Because of the
inadmissibility of the photocopies in the absence of the originals, respondents
obligation was not established.
[13]

Section 5 of Rule 130 of the Rules of Court states:


SEC. 5. When original document is unavailable. When the original document has
been lost or destroyed, or cannot be produced in court, the offeror, upon proof of its
execution or existence and the cause of its unavailability without bad faith on his part,
may prove its contents by a copy, or by a recital of its contents in some authentic
document, or by the testimony of witnesses in the order stated.
Applying the above Rule to the present case, before a party is allowed to
adduce secondary evidence to prove the contents of the original sales
invoices, the offeror must prove the following: (1) the existence or due
execution of the original; (2) the loss and destruction of the original or the
reason for its nonproduction in court; and (3) on the part of the offeror, the
absence of bad faith to which the unavailability of the original can be
attributed. The correct order of proof is as follows: existence, execution, loss,
and contents. At the sound discretion of the court, this order may be changed
if necessary.
[14]

[15]

In the present case, the existence of the original sales invoices was
established by the photocopies and the testimony of Hernandez. Petitioner,
however, failed to prove that the originals had been lost or could not be
produced in court after reasonable diligence and good faith in searching for
them.
Indeed, the loss of the originals and reasonable diligence in the search for
them were conditions that were not met, because the sales invoices might

have been found by Equitable.Hernandez, testifying that he had requested the


originals from Equitable, failed to show that he had subsequently followed up
the request.
[16]

Finally, when more than one original copy exists, it must appear that all of
them have been lost, destroyed, or cannot be produced in court before
secondary evidence can be given of any one. A photocopy may not be used
without accounting for the other originals.
[17]

In Santos v. Santos the Court upheld the pronouncement of the CA that


before the appellees therein could be allowed to adduce secondary evidence
to prove the contents of the original, they had to prove -- with the requisite
quantum of evidence -- the loss, the destruction or the unavailability
of all original copies of the document.
[18]

In the present case, triplicates were produced, although the cardholder


signed the sales invoice only once. During the trial, Hernandez explained
that an original copy had gone to respondent, another to the merchant, and
still another to petitioner.
[19]

[20]

Each of these three copies is regarded as an original in accordance with


Section 4 (b) of Rule 130 of the Rules of Court. Petitioner failed to show that
all three original copies were unavailable, and that due diligence had been
exercised in the search for them.
[21]

WHEREFORE, the Petition is DENIED. Costs against petitioner.


SO ORDERED.
G.R. Nos. 108280-83 November 16, 1995
ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO
TAMAYO,petitioners,
vs.
PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.
G.R. Nos. 114931-33 November 16, 1995
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.

ANNIE FERRER, accused, ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS
SANTOS, and JOSELITO TAMAYO, accused-appellants.

PUNO, J.:
The case before us occurred at a time of great political polarization in the aftermath of the 1986
EDSA Revolution. This was the time when the newly-installed government of President Corazon C.
Aquino was being openly challenged in rallies, demonstrations and other public fora by "Marcos
loyalists," supporters of deposed President Ferdinand E. Marcos. Tension and animosity between
the two (2) groups sometimes broke into violence. On July 27, 1986, it resulted in the murder of
Stephen Salcedo, a known "Coryista."
From August to October 1986, several informations were filed in court against eleven persons
identified as Marcos loyalists charging them with the murder of Salcedo. Criminal Case No. 8647322 was filed against Raul Billosos y de Leon and Gerry Nery y Babazon; Criminal Case No. 8647617 against Romeo Sison y Mejia, Nilo Pacadar y Abe and Joel Tan y Mostero; Criminal Case No.
86-47790 against Richard de los Santos y Arambulo; Criminal Case No. 86-48538 against Joselito
Tamayo y Ortia; and Criminal Case No. 86-48931 against Rolando Fernandez y Mandapat. Also filed
were Criminal Cases Nos. 86-49007 and 86-49008 against Oliver Lozano and Benjamin Nuega as
well as Annie Ferrer charging them as accomplices to the murder of Salcedo.
The cases were consolidated and raffled to the Regional Trial Court, Branch XLIX, Manila. All of the
accused pleaded not guilty to the charge and trial ensued accordingly. The prosecution presented
twelve witnesses, including two eyewitnesses, Ranulfo Sumilang and Renato Banculo, and the
police officers who were at the Luneta at the time of the incident. In support of their testimonies, the
prosecution likewise presented documentary evidence consisting of newspaper accounts of the
incident and various photographs taken during the mauling.
The prosecution established that on July 27, 1986, a rally was scheduled to be held at the Luneta by
the Marcos loyalists. Earlier, they applied for a permit to hold the rally but their application was
denied by the authorities. Despite this setback, three thousand of them gathered at the Rizal
Monument of the Luneta at 2:30 in the afternoon of the scheduled day. Led by Oliver Lozano and
Benjamin Nuega, both members of the Integrated Bar of the Philippines, the loyalists started an
impromptu singing contest, recited prayers and delivered speeches in between. Colonel Edgar Dula
Torres, then Deputy Superintendent of the Western Police District, arrived and asked the leaders for
their permit. No permit could be produced. Colonel Dula Torres thereupon gave them ten minutes to
disperse. The loyalist leaders asked for thirty minutes but this was refused. Atty. Lozano turned
towards his group and said "Gulpihin ninyo ang lahat ng mga Cory infiltrators." Atty. Nuega added
"Sige, sige gulpihin ninyo!" The police then pushed the crowd, and used tear gas and truncheons to
disperse them. The loyalists scampered away but some of them fought back and threw stones at the
police. Eventually, the crowd fled towards Maria Orosa Street and the situation later stabilized. 1
At about 4:00 p.m., a small group of loyalists converged at the Chinese Garden, Phase III of the
Luneta. There, they saw Annie Ferrer, a popular movie starlet and supporter of President Marcos,

jogging around the fountain. They approached her and informed her of their dispersal and Annie
Ferrer angrily ordered them "Gulpihin ninyo and mga Cory hecklers!" Then she continued jogging
around the fountain chanting "Marcos pa rin, Marcos pa rin, Pabalikin si Marcos, Pabalikin si
Marcos, Bugbugin ang mga nakadilaw!" The loyalists replied "Bugbugin!" A few minutes later, Annie
Ferrer was arrested by the police. Somebody then shouted "Kailangang gumanti, tayo ngayon!" A
commotion ensued and Renato Banculo, a cigarette vendor, saw the loyalists attacking persons in
yellow, the color of the "Coryistas." Renato took off his yellow shirt. 2 He then saw a man wearing a
yellow t-shirt being chased by a group of persons shouting "Iyan, habulin iyan. Cory iyan!" The man in the
yellow t-shirt was Salcedo and his pursuers appeared to be Marcos loyalists. They caught Salcedo and
boxed and kicked and mauled him. Salcedo tried to extricate himself from the group but they again
pounced on him and pummelled him with fist blows and kicks hitting him on various parts of his body.
Banculo saw Ranulfo Sumilang, an electrician at the Luneta, rush to Salcedo's aid. Sumilang tried to
pacify the maulers so he could extricate Salcedo from them. But the maulers pursued Salcedo
unrelentingly, boxing him with stones in their fists. Somebody gave Sumilang a loyalist tag which
Sumilang showed to Salcedo's attackers. They backed off for a while and Sumilang was able to tow
Salcedo away from them. But accused Raul Billosos emerged from behind Sumilang as another man
boxed Salcedo on the head. Accused Richard de los Santos also boxed Salcedo twice on the head and
kicked him even as he was already fallen. 3 Salcedo tried to stand but accused Joel Tan boxed him on the
left side of his head and ear. 4 Accused Nilo Pacadar punched Salcedo on his nape, shouting: "Iyan, Cory
Iyan. Patayin!" 5Sumilang tried to pacify Pacadar but the latter lunged at the victim again. Accused Joselito
Tamayo boxed Salcedo on the left jaw and kicked him as he once more fell. Banculo saw accused Romeo
Sison trip Salcedo and kick him on the head, and when he tried to stand, Sison repeatedly boxed
him. 6 Sumilang saw accused Gerry Neri approach the victim but did not notice what he did. 7
Salcedo somehow managed to get away from his attackers and wipe off the blood from his face. He
sat on some cement steps 8 and then tried to flee towards Roxas boulevard to the sanctuary of the Rizal
Monument but accused Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in the process.
Salcedo pleaded for his life exclaiming "Maawa na kayo sa akin. Tulungan ninyo ako." He cried: "Pulis,
pulis. Wala bang pulis?" 9
The mauling resumed at the Rizal Monument and continued along Roxas Boulevard until Salcedo
collapsed and lost consciousness. Sumilang flagged down a van and with the help of a traffic officer,
brought Salcedo to the Medical Center Manila but he was refused admission. So they took him to
the Philippine General Hospital where he died upon arrival.
Salcedo died of "hemorrhage, intracranial traumatic." He sustained various contusions, abrasions,
lacerated wounds and skull fractures as revealed in the following post-mortem findings:
Cyanosis, lips, and nailbeds.
Contused-abrasions: 6.0 x 2.5 cm., and 3.0 x 2.4 cm., frontal region, right side; 6.8 x
4.2 cm., frontal region, left side; 5.0 x 4.0 cm., right cheek; 5.0 x 3.5 cm., face, left
side; 3.5 x 2.0 cm., nose; 4.0 x 2.1 cm., left ear, pinna; 5.0 x 4.0 cm. left
suprascapular region; 6.0 x 2.8 cm., right elbow.
Abrasions: 4.0 x 2.0 cm., left elbow; 2.0 x 1.5 cm., right knee.

Lacerated wounds: 2.2 cm., over the left eyebrow; 1.0 cm., upper lip.
Hematoma, scalp; frontal region, both sides; left parietal region; right temporal
region; occipital region, right side.
Fractures, skull; occipital bone, right side; right posterior cranial fossa; right anterior
cranial fossa.
Hemorrhage, subdural, extensive.
Other visceral organs, congested.
Stomach, about 1/2 filled with grayish brown food materials and fluid. 10
The mauling of Salcedo was witnessed by bystanders and several press people, both local and
foreign. The press took pictures and a video of the event which became front-page news the
following day, capturing national and international attention. This prompted President Aquino to order
the Capital Regional Command and the Western Police District to investigate the incident. A reward
of ten thousand pesos (P10,000.00) was put up by Brigadier General Alfredo Lim, then Police Chief,
for persons who could give information leading to the arrest of the killers. 11 Several persons, including
Ranulfo Sumilang and Renato Banculo, cooperated with the police, and on the basis of their identification,
several persons, including the accused, were apprehended and investigated.
For their defense, the principal accused denied their participation in the mauling of the victim and
offered their respective alibis. Accused Joselito Tamayo testified that he was not in any of the
photographs presented by the prosecution 12 because on July 27, 1986, he was in his house in Quezon
City. 13 Gerry Neri claimed that he was at the Luneta Theater at the time of the
incident. 14 Romeo Sison, a commercial photographer, was allegedly at his office near the Luneta waiting
for some pictures to be developed at that time. 15 He claimed to be afflicted with hernia impairing his
mobility; he cannot run normally nor do things forcefully. 16 Richard de los Santos admits he was at the
Luneta at the time of the mauling but denies hitting Salcedo. 17 He said that he merely watched the
mauling which explains why his face appeared in some of the photographs. 18 Unlike the other accused,
Nilo Pacadar admits that he is a Marcos loyalist and a member of the Ako'y Pilipino Movement and that
he attended the rally on that fateful day. According to him, he saw Salcedo being mauled and like Richard
de los Santos, merely viewed the incident. 19 His face was in the pictures because he shouted to the
maulers to stop hitting Salcedo. 20 Joel Tan also testified that he tried to pacify the maulers because he
pitied Salcedo. The maulers however ignored him. 21
The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer opted not to testify in
their defense.
On December 16, 1988, the trial court rendered a decision finding Romeo Sison, Nilo Pacadar, Joel
Tan, Richard de los Santos and Joselito Tamayo guilty as principals in the crime of murder qualified
by treachery and sentenced them to 14 years 10 months and 20 days of reclusion temporal as
minimum to 20 years of reclusion temporal as maximum. Annie Ferrer was likewise convicted as an
accomplice. The court, however, found that the prosecution failed to prove the guilt of the other

accused and thus acquitted Raul Billosos, Gerry Nery, Rolando Fernandez, Oliver Lozano and
Benjamin Nuega. The dispositive portion of the decision reads as follows:
WHEREFORE, judgement is hereby rendered in the aforementioned cases as
follows:
1. In "People versus Raul Billosos and Gerry Nery," Criminal Case No. 86-47322, the
Court finds that the Prosecution failed to prove the guilt of the two (2) Accused
beyond reasonable doubt for the crime charged and hereby acquits them of said
charge;
2. In "People versus Romeo Sison, et al.," Criminal Case No. 86-47617, the Court
finds the Accused Romeo Sison, Nilo Pacadar and Joel Tan, guilty beyond
reasonable doubt, as principals for the crime of Murder, defined in Article 248 of the
Revised Penal Code, and, there being no other mitigating or aggravating
circumstances, hereby imposes on each of them an indeterminate penalty of from
FOURTEEN (14)YEARS, TEN (10) MONTHS and TWENTY (20) DAYS, of Reclusion
Temporal, as minimum, to TWENTY (20) DAYS, of Reclusion Temporal, as minimum,
to TWENTY (20) YEARS ofReclusion Temporal, as Maximum;
3. In "People versus Richard de los Santos," Criminal Case No. 86-47790, the Court
finds the Accused Richard de los Santos guilty beyond reasonable doubt as principal
for the crime of Murder defined in Article 248 of the Revised Penal Code and, there
being no other extenuating circumstances, the Court hereby imposes on him an
indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and
TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS
of Reclusion Temporal as Maximum;
4. In "People versus Joselito Tamayo," Criminal Case No. 86-48538 the Court finds
the Accused guilty beyond reasonable doubt as principal, for the crime of "Murder"
defined in Article 248 of the Revised Penal Code and hereby imposes on him an
indeterminate penalty of from FOURTEEN (14) YEARS, TEN (10) MONTHS and
TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to TWENTY (20) YEARS
of Reclusion Temporal, as Maximum;
5. In "People versus Rolando Fernandez," Criminal Case No. 86-4893l, the Court
finds that the Prosecution failed to prove the guilt of the Accused for the crime
charged beyond reasonable doubt and hereby acquits him of said charge;
6. In "People versus Oliver Lozano, et al.," Criminal Case No. 86-49007, the Court
finds that the Prosecution failed to prove the guilt of the Accused beyond reasonable
doubt for the crime charged and hereby acquits them of said charge;
7. In "People versus Annie Ferrer," Criminal Case No. 86-49008, the Court finds the
said Accused guilty beyond reasonable doubt, as accomplice to the crime of Murder
under Article 18 in relation to Article 248 of the Revised Penal Code and hereby

imposes on her an indeterminate penalty of NINE (9) YEARS and FOUR (4)
MONTHS of Prision Mayor, as Minimum to TWELVE (12) YEARS, FIVE (5)
MONTHS and ELEVEN (11) DAYS of Reclusion Temporal, as Maximum.
The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel Tan, Joselito
Tamayo and Annie Ferrer are hereby ordered to pay, jointly and severally, to the heirs
of Stephen Salcedo the total amount of P74,000.00 as actual damages and the
amount of P30,000.00 as moral and exemplary damages, and one-half (1/2) of the
costs of suit.
The period during which the Accused Nilo Pacadar, Romeo Sison, Joel Tan, Richard
de los Santos and Joselito Tamayo had been under detention during the pendency of
these cases shall be credited to them provided that they agreed in writing to abide by
and comply strictly with the rules and regulations of the City Jail.
The Warden of the City Jail of Manila is hereby ordered to release the Accused Gerry
Nery, Raul Billosos and Rolando Fernandez from the City Jail unless they are being
detained for another cause or charge.
The Petition for Bail of the Accused Rolando Fernandez has become moot and
academic. The Petition for Bail of the Accused Joel Tan, Romeo Sison and Joselito
Tamayo is denied for lack of merit.
The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega are
hereby cancelled. 22
On appeal, the Court of Appeals 23 on December 28, 1992, modified the decision of the trial court by
acquitting Annie Ferrer but increasing the penalty of the rest of the accused, except for Joselito Tamayo,
to reclusion perpetua. The appellate court found them guilty of murder qualified by abuse of superior
strength, but convicted Joselito Tamayo of homicide because the information against him did not allege
the said qualifying circumstance. The dispositive portion of the decision reads:
PREMISES CONSIDERED, the decision appealed from is hereby MODIFIED as
follows:
1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe, Joel Tan y Mostero
and Richard de los Santos are hereby found GUILTY beyond reasonable doubt of
Murder and are each hereby sentenced to suffer the penalty of Reclusion Perpetua;
2. Accused-appellant Joselito Tamayo y Oria is hereby found GUILTY beyond
reasonable doubt of the crime of Homicide with the generic aggravating
circumstance of abuse of superior strength and, as a consequence, an indeterminate
penalty of TWELVE (12) YEARS of prision mayor as Minimum to TWENTY (20)
YEARS of reclusion temporal as Maximum is hereby imposed upon him;

3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being an accomplice to


the crime of Murder.
CONSIDERING that the penalty of Reclusion Perpetua has been imposed in the
instant consolidated cases, the said cases are now hereby certified to the Honorable
Supreme Court for review. 24
Petitioners filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules of Court inasmuch as
Joselito Tamayo was not sentenced to reclusion perpetua. G.R. Nos. 114931-33 was certified to us
for automatic review of the decision of the Court of Appeals against the four accused-appellants
sentenced to reclusion perpetua.
Before this court, accused-appellants assign the following errors:
I
THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT NOTED
THAT THE ACCUSED FAILED TO CITE ANYTHING ON RECORD TO SUPPORT
THEIR AVERMENT THAT THERE WERE NO WITNESSES WHO HAVE COME
FORWARD TO IDENTIFY THE PERSONS RESPONSIBLE FOR THE DEATH OF
STEPHEN SALCEDO.
II
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING
CREDENCE TO THE UNRELIABLE, DOUBTFUL, SUSPICIOUS AND
INCONCLUSIVE TESTIMONIES OF PROSECUTION WITNESS RANULFO
SUMILANG.
III
THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN FINDING THE
ACCUSED GUILTY WHEN THERE WAS NO EVIDENCE TO PROVE THAT ANY OF
THE ACCUSED CARRIED A HARD AND BLUNT INSTRUMENT, THE ADMITTED
CAUSE OF THE HEMORRHAGE RESULTING IN THE DEATH OF THE
DECEASED.
IV
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT
THERE EXISTS CONSPIRACY AMONG THE PRINCIPAL ACCUSED.
V

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT


THE CRIME COMMITTED IS MURDER AND NOT DEATH (HOMICIDE) CAUSED IN
A TUMULTUOUS AFFRAY.25
In their additional brief, appellants contend that:
I
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REACHING A
CONCLUSION OF FACT UTILIZING SPECULATIONS, SURMISES, NONSEQUITUR CONCLUSIONS, AND EVEN THE DISPUTED DECISION OF THE
TRIAL COURT, TO UPHOLD THE VALIDITY OF THE VERY SAME JUDGMENT,
ALL CONTRARY TO THE RULES OF EVIDENCE.
II
THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING EXHIBITS "D",
"G", "O", "P", "V", TO "V-48", "W" TO "W-13", ALL OF WHICH WERE NOT
PROPERLY IDENTIFIED.
III
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN CONCLUDING
THAT CONSPIRACY EXISTED IN THE CASE AT BAR DISREGARDING
ALTOGETHER THE SETTLED JURISPRUDENCE ON THE MATTER.
IV
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT
THE CRIME COMMITTED WAS MURDER, NOT DEATH (HOMICIDE) IN
TUMULTUOUS AFFRAY SIDESTEPPING IN THE PROCESS THE FACTUAL
GROUNDS SURROUNDING THE INCIDENT. 26
Appellants mainly claim that the Court of Appeals erred in sustaining the testimonies of the
two in prosecution eyewitnesses, Ranulfo Sumilang and Renato Banculo, because they are
unreliable, doubtful and do not deserve any credence. According to them, the testimonies of
these two witnesses are suspect because they surfaced only after a reward was announced
by General Lim. Renato Banculo even submitted three sworn statements to the police
geared at providing a new or improved version of the incident. On the witness stand, he
mistakenly identified a detention prisoner in another case as accused Rolando
Fernandez. 27 Ranulfo Sumilang was evasive and unresponsive prompting the trial court to
reprimand him several times. 28
There is no proof that Banculo or Sumilang testified because of the reward announced by General
Lim, much less that both or either of them ever received such reward from the government. On the
contrary, the evidence shows that Sumilang reported the incident to the police and submitted his

sworn statement immediately two hours after the mauling, even before announcement of any
reward. 29 He informed the police that he would cooperate with them and identify Salcedo's assailants if
he saw them again. 30
The fact that Banculo executed three sworn statements does not make them and his testimony
incredible. The sworn statements were made to identify more suspects who were apprehended
during the investigation of Salcedo's death. 31
The records show that Sumilang was admonished several times by the trial court on the witness
stand for being argumentative and evasive. 32 This is not enough reason to reject Sumilang's testimony
for he did not exhibit this undesirable conduct all throughout his testimony. On the whole, his testimony
was correctly given credence by the trial court despite his evasiveness at some instances. Except for
compelling reasons, we cannot disturb the way trial courts calibrate the credence of witnesses
considering their visual view of the demeanor of witnesses when on the witness stand. As trial courts,
they can best appreciate the verbal and non-verbal dimensions of a witness' testimony.
Banculo's mistake in identifying another person as one of the accused does not make him an entirely
untrustworthy witness. 33 It does not make his whole testimony a falsity. An honest mistake is not
inconsistent with a truthful testimony. Perfect testimonies cannot be expected from persons with imperfect
senses. In the court's discretion, therefore, the testimony of a witness can be believed as to some facts
but disbelieved with respect to the others. 34
We sustain the appellate and trial courts' findings that the witnesses' testimonies corroborate each
other on all important and relevant details of the principal occurrence. Their positive identification of
all petitioners jibe with each other and their narration of the events are supported by the medical and
documentary evidence on record.
Dr. Roberto Garcia, the medico-legal officer of the National Bureau of Investigation, testified that the
victim had various wounds on his body which could have been inflicted by pressure from more than
one hard object. 35 The contusions and abrasions found could have been caused by punches, kicks and
blows from rough stones. 36 The fatal injury of intracranial hemorrhage was a result of fractures in
Salcedo's skull which may have been caused by contact with a hard and blunt object such as fistblows,
kicks and a blunt wooden instrument. 37
Appellants do not deny that Salcedo was mauled, kicked and punched. Sumilang in fact testified that
Salcedo was pummeled by his assailants with stones in their hands. 38
Appellants also contend that although the appellate court correctly disregarded Exhibits "D," "G," and
"P," it erroneously gave evidentiary weight to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W13." 39 Exhibit "O" is the Joint Affidavit of Pat. Flores and Pat. Bautista, the police intelligence-operatives
who witnessed the rally and subsequent dispersal operation. Pat. Flores properly identified Exhibit "O" as
his sworn statement and in fact gave testimony corroborating the contents thereof. 40 Besides, the Joint
Affidavit merely reiterates what the other prosecution witnesses testified to. Identification by Pat. Bautista
is a surplusage. If appellants wanted to impeach the said affidavit, they should have placed Pat. Flores on
the witness stand.

Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he was being mauled at the
Luneta starting from a grassy portion to the pavement at the Rizal Monument and along Roxas
Boulevard, 41 as he was being chased by his assailants 42 and as he sat pleading with his
assailants. 43 Exhibits "W", "W-1" to "W-13" are photographs of Salcedo and the mauling published in local
newspapers and magazines such as the Philippine Star, 44 Mr. and Ms. Magazine, 45 Philippine Daily
Inquirer, 46 and the Malaya. 47 The admissibility of these photographs is being questioned by appellants for
lack of proper identification by the person or persons who took the same.
The rule in this jurisdiction is that photographs, when presented in evidence, must be identified by
the photographer as to its production and testified as to the circumstances under which they were
produced. 48 The value of this kind of evidence lies in its being a correct representation or reproduction of
the original, 49 and its admissibility is determined by its accuracy in portraying the scene at the time of the
crime. 50 The photographer, however, is not the only witness who can identify the pictures he has
taken. 51 The correctness of the photograph as a faithful representation of the object portrayed can
be proved prima facie, either by the testimony of the person who made it or by other competent
witnesses, after which the court can admit it subject to impeachment as to its accuracy. 52 Photographs,
therefore, can be identified by the photographer or by any other competent witness who can testify to its
exactness and accuracy. 53
This court notes that when the prosecution offered the photographs as part of its evidence,
appellants, through counsel Atty. Alfredo Lazaro, Jr. objected to their admissibility for lack of proper
identification. 54 However, when the accused presented their evidence, Atty. Winlove Dumayas, counsel
for accused Joselito Tamayo and Gerry Neri used Exhibits "V", "V-1" to "V-48" to prove that his clients
were not in any of the pictures and therefore could not have participated in the mauling of the
victim. 55 The photographs were adopted by appellant Joselito Tamayo and accused Gerry Neri as part of
the defense exhibits. And at this hearing, Atty. Dumayas represented all the other accused per
understanding with their respective counsels, including Atty. Lazaro, who were absent. At subsequent
hearings, the prosecution used the photographs to cross-examine all the accused who took the witness
stand. 56 No objection was made by counsel for any of the accused, not until Atty. Lazaro appeared at the
third hearing and interposed a continuing objection to their admissibility.57
The objection of Atty. Lazaro to the admissibility of the photographs is anchored on the fact that the
person who took the same was not presented to identify them. We rule that the use of these
photographs by some of the accused to show their alleged non-participation in the crime is an
admission of the exactness and accuracy thereof. That the photographs are faithful representations
of the mauling incident was affirmed when appellants Richard de los Santos, Nilo Pacadar and Joel
Tan identified themselves therein and gave reasons for their presence thereat. 58
An analysis of the photographs vis-a-vis the accused's testimonies reveal that only three of the
appellants, namely, Richard de los Santos, Nilo Pacadar and Joel Tan could be readily seen in
various belligerent poses lunging or hovering behind or over the victim. 59 Appellant Romeo Sison
appears only once and he, although afflicted with hernia is shown merely running after the
victim. 60Appellant Joselito Tamayo was not identified in any of the pictures. The absence of the two
appellants in the photographs does not exculpate them. The photographs did not capture the entire
sequence of the killing of Salcedo but only segments thereof. While the pictures did not record Sison and
Tamayo hitting Salcedo, they were unequivocally identified by Sumilang and
Banculo 61Appellants' denials and alibis cannot overcome their eyeball identification.

Appellants claim that the lower courts erred in finding the existence of conspiracy among the
principal accused and in convicting them of murder qualified by abuse of superior strength, not death
in tumultuous affray.
Death in a tumultuous affray is defined in Article 251 of the Revised Penal code as follows:
Art. 251. Death caused in a tumultuous affray. When, while several persons, not
composing groups organized for the common purpose of assaulting and attacking
each other reciprocally, quarrel and assault each other in a confused and tumultuous
manner, and in the course of the affray someone is killed, and it cannot be
ascertained who actually killed the deceased, but the person or persons who inflicted
serious physical injuries can be identified, such person or persons shall be punished
by prison mayor.
If it cannot be determined who inflicted the serious physical injuries on the deceased,
the penalty ofprision correccional in its medium and maximum periods shall be
imposed upon all those who shall have used violence upon the person of the victim.
For this article to apply, it must be established that: (1) there be several persons; (2) that they
did not compose groups organized for the common purpose of assaulting and attacking each
other reciprocally; (3) these several persons quarrelled and assaulted one another in a
confused and tumultuous manner; (4) someone was killed in the course of the affray; (5) it
cannot be ascertained who actually killed the deceased; and (6) that the person or persons
who inflicted serious physical injuries or who used violence can be identified. 62
A tumultuous affray takes place when a quarrel occurs between several persons and they engage in
a confused and tumultuous affray, in the course of which some person is killed or wounded and the
author thereof cannot be ascertained. 63
The quarrel in the instant case, if it can be called a quarrel, was between one distinct group and one
individual. Confusion may have occurred because of the police dispersal of the rallyists, but this
confusion subsided eventually after the loyalists fled to Maria Orosa Street. It was only a while later
after said dispersal that one distinct group identified as loyalists picked on one defenseless individual
and attacked him repeatedly, taking turns in inflicting punches, kicks and blows on him. There was
no confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression at this stage of
the incident. 64
As the lower courts found, the victim's assailants were numerous by as much as fifty in number 65 and
were armed with stones with which they hit the victim. They took advantage of their superior strength and
excessive force and frustrated any attempt by Salcedo to escape and free himself. They followed Salcedo
from the Chinese Garden to the Rizal Monument several meters away and hit him mercilessly even when
he was already fallen on the ground. There was a time when Salcedo was able to get up, prop himself
against the pavement and wipe off the blood from his face. But his attackers continued to pursue him
relentlessly. Salcedo could not defend himself nor could he find means to defend himself. Sumilang tried
to save him from his assailants but they continued beating him, hitting Sumilang in the process. Salcedo
pleaded for mercy but they ignored his pleas until he finally lost consciousness. The deliberate and
prolonged use of superior strength on a defenseless victim qualifies the killing to murder.

Treachery as a qualifying circumstance cannot be appreciated in the instant case. There is no proof
that the attack on Salcedo was deliberately and consciously chosen to ensure the assailants' safety
from any defense the victim could have made. True, the attack on Salcedo was sudden and
unexpected but it was apparently because of the fact that he was wearing a yellow t-shirt or because
he allegedly flashed the "Laban" sign against the rallyists, taunting them into mauling him. As the
appellate court well found, Salcedo had the opportunity to sense the temper of the rallyists and run
away from them but he, unfortunately, was overtaken by them. The essence of treachery is the
sudden and unexpected attack without the slightest provocation on the part of the person being
attacked. 66
The qualifying circumstance of evident premeditation was alleged in the information against Joselito
Tamayo. Evident premeditation cannot be appreciated in this case because the attack against
Salcedo was sudden and spontaneous, spurred by the raging animosity against the so-called
"Coryistas." It was not preceded by cool thought and reflection.
We find however the existence of a conspiracy among appellants. At the time they were committing
the crime, their actions impliedly showed a unity of purpose among them, a concerted effort to bring
about the death of Salcedo. Where a conspiracy existed and is proved, a showing as to who among
the conspirators inflicted the fatal wound is not required to sustain a conviction. 67 Each of the
conspirators is liable for all acts of the others regardless of the intent and character of their participation,
because the act of one is the act of all. 68
The trial court awarded the heirs of Salcedo P74,000.00 as actual damages, P30,000.00 as moral
and exemplary damages, and one half of the costs of the suit. At the time he died on July 27, 1986,
Salcedo was twenty three years old and was set to leave on August 4, 1986 for employment in Saudi
Arabia. 69 The reckless disregard for such a young person's life and the anguish wrought on his widow
and three small children, 70 warrant an increase in moral damages from P30,000.00 to P100,000.00. The
indemnity of P50,000.00 must also be awarded for the death of the victim. 71
IN VIEW WHEREOF, the decision appealed from is hereby affirmed and modified as follows:
1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard de los
Santos are found GUILTY beyond reasonable doubt of Murder without any
aggravating or mitigating circumstance and are each hereby sentenced to suffer the
penalty of reclusion perpetua;
2. Accused-appellant Joselito Tamayo is found GUILTY beyond reasonable doubt of
the crime of Homicide with the generic aggravating circumstance of abuse of
superior strength and, as a consequence, he is sentenced to an indeterminate
penalty of TWELVE (12) YEARS of prision mayoras minimum to TWENTY (20)
YEARS of reclusion temporal as maximum;
3. All accused-appellants are hereby ordered to pay jointly and severally the heirs of
Stephen Salcedo the following amounts:
(a) P74,000.00 as actual damages;

(b) P100,000.00 as moral damages; and


(c) P50,000.00 as indemnity for the death of the victim.
Costs against accused-appellants.
SO ORDERED.

[G.R. No. 124893. April 18, 1997]

LYNETTE G. GARVIDA, petitioner, vs. FLORENCIO G. SALES, JR.,


THE HONORABLE COMMISSION ON ELECTIONS, ELECTION
OFFICER DIONISIO F. RIOS and PROVINCIAL SUPERVISOR
NOLI PIPO, respondents.
DECISION
PUNO, J.:

Petitioner Lynette G. Garvida seeks to annul and set aside the order dated
May 2, 1996 of respondent Commission on Elections (COMELEC) en
banc suspending her proclamation as the duly elected Chairman of the
Sangguniang Kabataan of Barangay San Lorenzo, Municipality of Bangui,
Ilocos Norte.
The facts are undisputed. The Sangguniang Kabataan (SK) elections
nationwide was scheduled to be held on May 6, 1996. On March 16, 1996,
petitioner applied for registration as member and voter of the Katipunan ng
Kabataan of Barangay San Lorenzo, Bangui, Ilocos Norte. The Board of
Election Tellers, however, denied her application on the ground that petitioner,
who was then twenty-one years and ten (10) months old, exceeded the age
limit for membership in the Katipunan ng Kabataan as laid down in Section 3
[b] of COMELEC Resolution No. 2824.
On April 2, 1996, petitioner filed a "Petition for Inclusion as Registered
Kabataang Member and Voter" with the Municipal Circuit Trial Court, BanguiPagudpud-Adams-Damalneg, Ilocos Norte. In a decision dated April 18, 1996,
the said court found petitioner qualified and ordered her registration as
member and voter in the Katipunan ng Kabataan. The Board of Election
[1]

Tellers appealed to the Regional Trial Court, Bangui, Ilocos Norte. The
presiding judge of the Regional Trial Court, however, inhibited himself from
acting on the appeal due to his close association with petitioner.
[2]

[3]

On April 23, 1996, petitioner filed her certificate of candidacy for the
position of Chairman, Sangguniang Kabataan, Barangay San Lorenzo,
Municipality of Bangui, Province of Ilocos Norte. In a letter dated April 23,
1996, respondent Election Officer Dionisio F. Rios, per advice of Provincial
Election Supervisor Noli Pipo, disapproved petitioner's certificate of
candidacy again due to her age. Petitioner, however, appealed to COMELEC
Regional Director Filemon A. Asperin who set aside the order of respondents
and allowed petitioner to run.
[4]

[5]

[6]

On May 2, 1996, respondent Rios issued a memorandum to petitioner


informing her of her ineligibility and giving her 24 hours to explain why her
certificate of candidacy should not be disapproved. Earlier and without the
knowledge of the COMELEC officials, private respondent Florencio G. Sales,
Jr., a rival candidate for Chairman of the Sangguniang Kabataan, filed with the
COMELEC en banc a "Petition of Denial and/or Cancellation of Certificate of
Candidacy" against petitioner Garvida for falsely representing her age
qualification in her certificate of candidacy. The petition was sent by
facsimile and registered mail on April 29, 1996 to the Commission on
Elections National Office, Manila.
[7]

[8]

On May 2, 1996, the same day respondent Rios issued the memorandum
to petitioner, the COMELEC en banc issued an order directing the Board of
Election Tellers and Board of Canvassers of Barangay San Lorenzo to
suspend the proclamation of petitioner in the event she won in the
election. The order reads as follows:
"Acting on the Fax "Petition for Denial And/Or Cancellation of Certificate of
Candidacy" by petitioner Florencio G. Sales, Jr. against Lynette G. Garvida,
received on April 29, 1996, the pertinent allegations of which reads:
xxx

5. That the said respondent is disqualified to become a voter and a candidate for the
SK for the reason that she will be more than twenty-one (21) years of age on May 6,
1996; that she was born on June 11, 1974 as can be gleaned from her birth certificate,
a copy of which is hereto attached and marked as Annex "A";
6. That in filing her certificate of candidacy as candidate for SK of Bgy. San Lorenzo,
Bangui, Ilocos Norte, she made material representation which is false and as such, she
is disqualified; that her certificate of candidacy should not be given due course and
that said candidacy must be cancelled;
x x x."
the Commission, it appearing that the petition is meritorious, hereby
DIRECTS the Board of Election Tellers/Board of Canvassers of Barangay San
Lorenzo, Bangui, Ilocos Norte, to suspend the proclamation of Lynette G.
Garvida in the event she garners the highest number of votes for the position
of Sangguniang Kabataan [sic].
Meantime, petitioner is hereby required to submit immediately ten (10) copies
of his petition and to pay the filing and legal research fees in the amount
of P510.00.
SO ORDERED."

[9]

On May 6, 1996, election day, petitioner garnered 78 votes as against


private respondent's votes of 76. In accordance with the May 2, 1996 order
of the COMELEC en banc, the Board of Election Tellers did not proclaim
petitioner as the winner. Hence, the instant petition for certiorari was filed on
May 27, 1996.
[10]

On June 2, 1996, however, the Board of Election Tellers proclaimed


petitioner the winner for the position of SK chairman, Barangay San Lorenzo,
Bangui, Ilocos Norte. The proclamation was "without prejudice to any further
action by the Commission on Elections or any other interested party." On
July 5, 1996, petitioner ran in the Pambayang Pederasyon ng mga
Sangguniang Kabataan for the municipality of Bangui, Ilocos Norte. She won
as Auditor and was proclaimed one of the elected officials of the Pederasyon.
[11]

[12]

[13]

Petitioner raises two (2) significant issues: the first concerns the
jurisdiction of the COMELEC en banc to act on the petition to deny or cancel
her certificate of candidacy; the second, the cancellation of her certificate of
candidacy on the ground that she has exceeded the age requirement to run
as an elective official of the SK.
I

Section 532 (a) of the Local Government Code of 1991 provides that the
conduct of the SK elections is under the supervision of the COMELEC and
shall be governed by the Omnibus Election Code. The Omnibus Election
Code, in Section 78, Article IX, governs the procedure to deny due course to
or cancel a certificate of candidacy, viz:
[14]

"Sec. 78. Petition to deny due course to or cancel a certificate of candidacy. -A verified petition seeking to deny due course or to cancel a certificate of
candidacy may be filed by any person exclusively on the ground that any
material representation contained therein as required under Section 74 hereof
is false. The petition may be filed at any time not later than twenty-five days
from the time of filing of the certificate of candidacy and shall be decided,
after due notice and hearing, not later than fifteen days before election."
In relation thereto, Rule 23 of the COMELEC Rules of Procedure provides that
a petition to deny due course to or cancel a certificate of candidacy for an
elective office may be filed with the Law Department of the COMELEC on the
ground that the candidate has made a false material representation in his
certificate. The petition may be heard and evidence received by any official
designated by the COMELEC after which the case shall be decided by the
COMELEC itself.
[15]

Under the same Rules of Procedure, jurisdiction over a petition to cancel a


certificate of candidacy lies with the COMELEC sitting in Division, not en
banc. Cases before a Division may only be entertained by the COMELEC en
banc when the required number of votes to reach a decision, resolution, order
or ruling is not obtained in the Division. Moreover, only motions to reconsider
decisions, resolutions, orders or rulings of the COMELEC in Division are
resolved by the COMELEC en banc. It is therefore the COMELEC sitting in
[16]

Divisions that can hear and decide election cases. This is clear from Section 3
of the said Rules thus:
"Sec. 3. The Commission Sitting in Divisions. -- The Commission shall sit in
two (2) Divisions to hear and decide protests or petitions in ordinary actions,
special actions, special cases, provisional remedies, contempt and special
proceedings except in accreditation of citizens' arms of the Commission."
[17]

In the instant case, the COMELEC en banc did not refer the case to any of
its Divisions upon receipt of the petition. It therefore acted without jurisdiction
or with grave abuse of discretion when it entertained the petition and issued
the order of May 2, 1996.
[18]

II

The COMELEC en banc also erred when it failed to note that the petition
itself did not comply with the formal requirements of pleadings under the
COMELEC Rules of Procedure.These requirements are:
"Sec. 1. Filing of Pleadings. -- Every pleading, motion and other papers must
be filed in ten (10) legible copies. However, when there is more than one
respondent or protestee, the petitioner or protestant must file additional
number of copies of the petition or protest as there are additional respondents
or protestees.
Sec. 2. How Filed. -- The documents referred to in the immediately preceding
section must be filed directly with the proper Clerk of Court of the
Commission personally, or, unless otherwise provided in these Rules, by
registered mail. In the latter case, the date of mailing is the date of filing and
the requirement as to the number of copies must be complied with.
Sec. 3. Form of Pleadings, etc. -- (a) All pleadings allowed by these Rules
shall be printed, mimeographed or typewritten on legal size bond paper and
shall be in English or Filipino.
x x x."

Every pleading before the COMELEC must be printed, mimeographed or


typewritten in legal size bond paper and filed in at least ten (10) legible
copies. Pleadings must be filed directly with the proper Clerk of Court of the
COMELEC personally, or, by registered mail.
In the instant case, the subject petition was not in proper form. Only two
(2) copies of the petition were filed with the COMELEC. Also, the COMELEC
en banc issued its Resolution on the basis of the petition transmitted by
facsimile, not by registered mail.
[19]

A facsimile or fax transmission is a process involving the transmission and


reproduction of printed and graphic matter by scanning an original copy, one
elemental area at a time, and representing the shade or tone of each area by
a specified amount of electric current. The current is transmitted as a signal
over regular telephone lines or via microwave relay and is used by the
receiver to reproduce an image of the elemental area in the proper position
and the correct shade. The receiver is equipped with a stylus or other device
that produces a printed record on paper referred to as a facsimile.
[20]

[21]

[22]

Filing a pleading by facsimile transmission is not sanctioned by the


COMELEC Rules of Procedure, much less by the Rules of Court. A facsimile
is not a genuine and authentic pleading. It is, at best, an exact copy
preserving all the marks of an original.
[23]

Without the original, there is no way of determining on its face whether the
facsimile pleading is genuine and authentic and was originally signed by the
party and his counsel. It may, in fact, be a sham pleading. The uncertainty of
the authenticity of a facsimile pleading should have restrained the COMELEC
en banc from acting on the petition and issuing the questioned order. The
COMELEC en banc should have waited until it received the petition filed by
registered mail.
III

To write finis to the case at bar, we shall now resolve the issue of
petitioner's age.

The Katipunan ng Kabataan was originally created by Presidential Decree


No. 684 in 1975 as the Kabataang Barangay, a barangay youth organization
composed of all residents of the barangay who were at least 15 years but less
than 18 years of age.
[24]

The Kabataang Barangay sought to provide its members a medium to


express their views and opinions and participate in issues of transcendental
importance. Its affairs were administered by a barangay youth chairman
together with six barangay youth leaders who were actual residents of the
barangay and were at least 15 years but less than 18 years of age. In 1983,
Batas Pambansa Blg. 337, then the Local Government Code, raised the
maximum age of the Kabataang Barangay members from "less than 18 years
of age" to "not more than 21 years of age."
[25]

[26]

The Local Government Code of 1991 changed the Kabataang Barangay


into the Katipunan ng Kabataan. It, however, retained the age limit of the
members laid down in B.P. 337 at 15 but not more than 21 years old. The
affairs of the Katipunan ng Kabataan are administered by the Sangguniang
Kabataan (SK) composed of a chairman and seven (7) members who are
elected by the Katipunan ng Kabataan.
[27]

[28]

The chairman automatically becomes ex-officio member of the


Sangguniang Barangay. A member of the SK holds office for a term of three
(3) years, unless sooner removed for cause, or becomes permanently
incapacitated, dies or resigns from office.
[29]

[30]

Membership in the Katipunan ng Kabataan is subject to specific


qualifications laid down by the Local Government Code of 1991, viz:
"Sec. 424. Katipunan ng Kabataan. -- The katipunan ng kabataan shall be
composed of all citizens of the Philippines actually residing in the barangay
for at least six (6) months, who are fifteen (15) but not more than twenty-one
(21) years of age, and who are duly registered in the list of the sangguniang
kabataan or in the official barangay list in the custody of the barangay
secretary."

A member of the Katipunan ng Kabataan may become a candidate for the


Sangguniang Kabataan if he possesses the following qualifications:
"Sec. 428. Qualifications. -- An elective official of the sangguniang kabataan
must be a citizen of the Philippines, a qualified voter of the katipunan ng
kabataan, a resident of the barangay for at least one (1) year immediately prior
to election, at least fifteen (15) years but not more than twenty-one (21) years
of age on the day of his election, able to read and write Filipino, English, or
the local dialect, and must not have been convicted of any crime involving
moral turpitude."
Under Section 424 of the Local Government Code, a member of the
Katipunan ng Kabataan must be: (a) a Filipino citizen; (b) an actual resident of
the barangay for at least six months; (c) 15 but not more than 21 years of
age; and (d) duly registered in the list of the Sangguniang Kabataan or in the
official barangay list. Section 428 of the Code requires that an elective official
of the Sangguniang Kabataan must be: (a) a Filipino citizen; (b) a
qualified voter in the Katipunan ng Kabataan; (c) a resident of the barangay at
least one (1) year immediately preceding the election; (d) at least 15 years but
not more than 21 years of age on the day of his election; (e) able to read and
write; and (f) must not have been convicted of any crime involving moral
turpitude.
For the May 6, 1996 SK elections, the COMELEC interpreted Sections
424 and 428 of the Local Government Code of 1991 in Resolution No. 2824
and defined how a member of the Katipunan ng Kabataan becomes a
qualified voter and an elective official. Thus:
"Sec. 3. Qualifications of a voter. -- To be qualified to register as a voter in the

SK elections, a person must be:


a) a citizen of the Philippines;
b) fifteen (15) but not more than twenty-one (21) years of age on election day, that is,
he must have been born between May 6, 1975 and May 6, 1981, inclusive; and

c) a resident of the Philippines for at least one (1) year and actually residing in the
barangay wherein he proposes to vote for at least six (6) months immediately
preceding the elections."
xxx
"Sec. 6. Qualifications of elective members. -- An elective official of the SK
must be:
a) a qualified voter;
b) a resident in the barangay for at least one (1) year immediately prior to the
elections; and
c) able to read and write Filipino or any Philippine language or dialect or English.
Cases involving the eligibility or qualification of candidates shall be decided
by the city/municipal Election Officer (EO) whose decision shall be final."
A member of the Katipunan ng Kabataan may be a qualified voter in the May
6, 1996 SK elections if he is: (a) a Filipino citizen; (b) 15 but not more than 21
years of age on election day, i.e., the voter must be born between May 6,
1975 and May 6, 1981, inclusive; and (c) a resident of the Philippines for at
least one (1) year and an actual resident of the barangay at least six (6)
months immediately preceding the elections. A candidate for the SK
must: (a) possess the foregoing qualifications of a voter; (b) be a resident in
the barangay at least one (1) year immediately preceding the elections; and
(c) able to read and write.
Except for the question of age, petitioner has all the qualifications of a
member and voter in the Katipunan ng Kabataan and a candidate for the
Sangguniang Kabataan. Petitioner's age is admittedly beyond the limit set in
Section 3 [b] of COMELEC Resolution No. 2824. Petitioner, however, argues
that Section 3 [b] of Resolution No. 2824 is unlawful, ultra vires and beyond
the scope of Sections 424 and 428 of the Local Government Code of
1991. She contends that the Code itself does not provide that the voter must
be exactly 21 years of age on election day. She urges that so long as she did
not turn twenty-two (22) years old, she was still twenty-one years of age on

election day and therefore qualified as a member and voter in the Katipunan
ng Kabataan and as candidate for the SK elections.
A closer look at the Local Government Code will reveal a distinction
between the maximum age of a member in the Katipunan ng Kabataan and
the maximum age of an elective SK official. Section 424 of the Code sets a
member's maximum age at 21 years only. There is no further provision as to
when the member shall have turned 21 years of age. On the other hand,
Section 428 provides that the maximum age of an elective SK official is 21
years old "on the day of his election." The addition of the phrase "on the day
of his election" is an additional qualification. The member may be more than
21 years of age on election day or on the day he registers as member of the
Katipunan ng Kabataan. The elective official, however, must not be more than
21 years old on the day of election. The distinction is understandable
considering that the Code itself provides more qualifications for an elective SK
official than for a member of the Katipunan ng Kabataan. Dissimilum dissimilis
est ratio. The courts may distinguish when there are facts and circumstances
showing that the legislature intended a distinction or qualification.
[31]

[32]

The qualification that a voter in the SK elections must not be more than 21
years of age on the day of the election is not provided in Section 424 of the
Local Government Code of 1991.In fact the term "qualified voter" appears only
in COMELEC Resolution No. 2824. Since a "qualified voter" is not
necessarily an elective official, then it may be assumed that a "qualified voter"
is a "member of the Katipunan ng Kabataan." Section 424 of the Code does
not provide that the maximum age of a member of the Katipunan ng Kabataan
is determined on the day of the election. Section 3 [b] of COMELEC
Resolution No. 2824 is therefore ultra vires insofar as it sets the age limit of a
voter for the SK elections at exactly 21 years on the day of the election.
[33]

The provision that an elective official of the SK should not be more than 21
years of age on the day of his election is very clear. The Local Government
Code speaks of years, not months nor days. When the law speaks of years, it
is understood that years are of 365 days each. One born on the first day of
the year is consequently deemed to be one year old on the 365th day after his
birth -- the last day of the year. In computing years, the first year is reached
after completing the first 365 days. After the first 365th day, the first day of the
[34]

[35]

second 365-day cycle begins. On the 365th day of the second cycle, the
person turns two years old. This cycle goes on and on in a lifetime. A person
turns 21 years old on the 365th day of his 21st 365-day cycle. This means on
his 21st birthday, he has completed the entire span of 21 365-day
cycles. After this birthday, the 365-day cycle for his 22nd year begins. The day
after the 365th day is the first day of the next 365-day cycle and he turns 22
years old on the 365th day.
The phrase "not more than 21 years of age" means not over 21 years, not
beyond 21 years. It means 21 365-day cycles. It does not mean 21 years and
one or some days or a fraction of a year because that would be more than 21
365-day cycles. "Not more than 21 years old" is not equivalent to "less than 22
years old," contrary to petitioner's claims. The law does not state that the
candidate be less than 22 years on election day.
In P.D. 684, the law that created the Kabataang Barangay, the age
qualification of a barangay youth official was expressly stated as "x x x at least
fifteen years of age or over but less than eighteen x x x." This provision
clearly states that the youth official must be at least 15 years old and may be
17 years and a fraction of a year but should not reach the age of eighteen
years. When the Local Government Code increased the age limit of members
of the youth organization to 21 years, it did not reenact the provision in such a
way as to make the youth "at least 15 but less than 22 years old." If the
intention of the Code's framers was to include citizens less than 22 years old,
they should have stated so expressly instead of leaving the matter open to
confusion and doubt.
[36]

[37]

Former Senator Aquilino Q. Pimentel, the sponsor and principal author of


the Local Government Code of 1991 declared that one of the reasons why the
Katipunan ng Kabataan was created and the Kabataang Barangay
discontinued was because most, if not all, Kabataang Barangay leaders were
already over 21 years of age by the time President Aquino assumed power.
They were not the "youth" anymore. The Local Government Code of 1991
fixed the maximum age limit at not more than 21 years and the only
exception is in the second paragraph of Section 423 which reads:
[38]

[39]

"Sec. 423. Creation and Election. -- a) x x x;

b) A sangguniang kabataan official who, during his term of office, shall have
passed the age of twenty-one (21) years shall be allowed to serve the
remaining portion of the term for which he was elected."
The general rule is that an elective official of the Sangguniang
Kabataan must not be more than 21 years of age on the day of his
election. The only exception is when the official reaches the age of 21 years
during his incumbency. Section 423 [b] of the Code allows him to serve the
remaining portion of the term for which he was elected. According to Senator
Pimentel, the youth leader must have "been elected prior to his 21st
birthday." Conversely, the SK official must not have turned 21 years old
before his election. Reading Section 423 [b] together with Section 428 of the
Code, the latest date at which an SK elective official turns 21 years old is on
the day of his election. The maximum age of a youth official must therefore be
exactly 21 years on election day. Section 3 [b] in relation to Section 6 [a] of
COMELEC Resolution No. 2824 is not ultra vires insofar as it fixes the
maximum age of an elective SK official on the day of his election.
[40]

In the case at bar, petitioner was born on June 11, 1974. On March 16,
1996, the day she registered as voter for the May 6, 1996 SK elections,
petitioner was twenty-one (21) years and nine (9) months old. On the day of
the elections, she was 21 years, 11 months and 5 days old. When she
assumed office on June 1, 1996, she was 21 years, 11 months and 20 days
old and was merely ten (10) days away from turning 22 years old. Petitioner
may have qualified as a member of the Katipunan ng Kabataan but definitely,
petitioner was over the age limit for elective SK officials set by Section 428 of
the Local Government Code and Sections 3 [b] and 6 of Comelec Resolution
No. 2824. She was ineligible to run as candidate for the May 6, 1996
Sangguniang Kabataan elections.
The requirement that a candidate possess the age qualification is founded
on public policy and if he lacks the age on the day of the election, he can be
declared ineligible.
[41]

In the same vein, if the candidate is over the maximum age limit on the
day of the election, he is ineligible. The fact that the candidate was elected will
not make the age requirement directory, nor will it validate his election. The
[42]

will of the people as expressed through the ballot cannot cure the vice of
ineligibility.
[43]

The ineligibility of petitioner does not entitle private respondent, the


candidate who obtained the highest number of votes in the May 6, 1996
elections, to be declared elected. A defeated candidate cannot be deemed
elected to the office. Moreover, despite his claims, private respondent has
failed to prove that the electorate themselves actually knew of petitioner's
ineligibility and that they maliciously voted for her with the intention of
misapplying their franchises and throwing away their votes for the benefit of
her rival candidate.
[44]

[45]

[46]

[47]

Neither can this Court order that pursuant to Section 435 of the Local
Government Code petitioner should be succeeded by the Sangguniang
Kabataan member who obtained the next highest number of votes in the May
6, 1996 elections. Section 435 applies when a Sangguniang Kabataan
Chairman "refuses to assume office, fails to qualify, is convicted of a felony,
voluntarily resigns, dies, is permanently incapacitated, is removed from office,
or has been absent without leave for more than three (3) consecutive
months."
[48]

[49]

The question of the age qualification is a question of eligibility.

[50]

Being "eligible" means being "legally qualified; capable of being legally


chosen."
[51]

Ineligibility, on the other hand, refers to the lack of the qualifications


prescribed in the Constitution or the statutes for holding public office.
Ineligibility is not one of the grounds enumerated in Section 435 for
succession of the SK Chairman.
[52]

To avoid a hiatus in the office of SK Chairman, the Court deems it


necessary to order that the vacancy be filled by the SK member chosen by the
incumbent SK members of Barangay San Lorenzo, Bangui, Ilocos Norte by
simple majority from among themselves. The member chosen shall assume
the office of SK Chairman for the unexpired portion of the term, and shall

discharge the powers and duties, and enjoy the rights and privileges
appurtenant to said office.
IN VIEW WHEREOF, the petition is dismissed and petitioner Lynette G.
Garvida is declared ineligible for being over the age qualification for candidacy
in the May 6, 1996 elections of the Sangguniang Kabataan, and is ordered to
vacate her position as Chairman of the Sangguniang Kabataan of Barangay
San Lorenzo, Bangui, Ilocos Norte. The Sangguniang Kabataan member
voted by simple majority by and from among the incumbent Sangguniang
Kabataan members of Barangay San Lorenzo, Bangui, Ilocos Norte shall
assume the office ofSangguniang Kabataan Chairman of Barangay San
Lorenzo, Bangui, Ilocos Norte for the unexpired portion of the term.
SO ORDERED.

[G.R. No. 140520. December 18, 2000]


JUSTICE SERAFIN R. CUEVAS, substituted by ARTEMIO G. TUQUERO
in his capacity as Secretary of Justice, petitioner, vs. JUAN
ANTONIO MUOZ,respondent.
DECISION
DE LEON, JR., J.:
Before us is a petition for review on certiorari of the Decision of the Court of
Appeals, dated November 9, 1999, directing the immediate release of respondent Juan
Antonio Muoz from the custody of law upon finding the Order of provisional arrest
dated September 20, 1999 issued by Branch 19 of the Regional Trial Court of Manila to
be null and void.
[1]

[2]

The antecedent facts:


On August 23, 1997, the Hong Kong Magistrates Court at Eastern Magistracy
issued a warrant for the arrest of respondent for seven (7) counts of accepting an
advantage as an agent contrary to Section 9(1)(a) of the Prevention of Bribery
Ordinance, Cap. 201 of Hong Kong, and seven (7) counts of conspiracy to defraud,
contrary to the common law of Hong Kong. Said warrant remains in full force and effect
up to the present time.
[3]

[4]

On September 13, 1999, the Philippine Department of Justice (hereafter, Philippine


DOJ) received a request for the provisional arrest of the respondent from the Mutual
Legal Assistance Unit, International Law Division of the Hong Kong Department of
Justice (hereafter, Hong Kong DOJ) pursuant to Article 11(1) of the Agreement
Between The Government Of The Republic Of The Philippines And The Government Of
Hong Kong For The Surrender Of Accused And Convicted Persons (hereafter, RP-Hong
Kong Extradition Agreement). The Philippine DOJ forwarded the request for provisional
arrest to the Anti-Graft Division of the National Bureau of Investigation (NBI).
[5]

[6]

On September 17, 1999, for and in behalf of the government of Hong Kong, the NBI
filed an application for the provisional arrest of respondent with the Regional Trial Court
(RTC) of Manila.
On September 20, 1999, Branch 19 of the RTC of Manila issued an Order granting
the application for provisional arrest and issuing the corresponding Order of Arrest.
[7]

On September 23, 1999, respondent was arrested pursuant to the said order, and is
currently detained at the NBI detention cell.
[8]

On October 14, 1999, respondent filed with the Court of Appeals, a petition
for certiorari, prohibition and mandamus with application for preliminary mandatory
injunction and/or writ ofhabeas corpus assailing the validity of the Order of Arrest. The
Court of Appeals rendered a decision declaring the Order of Arrest null and void on the
following grounds:
(1) that there was no urgency to warrant the request for provisional arrest under Article
11(1) of the RP-Hong Kong Extradition Agreement;[9]
(2) that the request for provisional arrest and the accompanying warrant of arrest and
summary of facts were unauthenticated and mere facsimile copies which are
insufficient to form a basis for the issuance of the Order of Arrest;[10]
(3) that the twenty (20) day period for provisional arrest under Section 20(d) of
Presidential Decree No. 1069 otherwise known as the Philippine Extradition Law,
was not amended by Article 11(3) of the RP-Hong Kong Extradition Agreement
which provides for a forty-five (45) day period for provisional arrest;[11]
(4) that the Order of Arrest was issued without the Judge having personally determined
the existence of probable cause;[12] and
(5) that the requirement of dual criminality under Section 3(a) of P.D. No. 1069 has not
been satisfied as the crimes for which respondent is wanted in Hong Kong, namely

accepting an advantage as an agent and conspiracy to commit fraud, are not


punishable by Philippine laws.[13]

Thus, petitioner Justice Serafin R. Cuevas, in his capacity as the Secretary of the
Department of Justice, lost no time in filing the instant petition.
[14]

On November 17, 1999, respondent filed an Urgent Motion For Release Pending
Appeal. He primarily contended that, since Section 20(d) of P.D. No. 1069 sets the
maximum period of provisional arrest at twenty (20) days, and he has been detained
beyond the said period, without both a request for extradition having been received by
the Philippine DOJ and the corresponding petition for extradition having been filed in the
proper RTC, he should be released from detention.
[15]

On December 16, 1999, petitioner filed a Manifestation with this Court stressing the
fact that as early as November 5, 1999, the Philippine DOJ had already received from
the Hong Kong DOJ, a formal request for the surrender of respondent. Petitioner also
informed this Court that pursuant to the said request for extradition, the Philippine DOJ,
representing the Government of Hong Kong, filed on November 22, 1999, a verified
petition for the extradition of respondent docketed as Case No. 99-95733 and currently
pending in Branch 10 of the RTC of Manila.
[16]

Petitioner submits that the Court of Appeals erred in nullifying the Order of
provisional arrest against respondent.
Petitioner imputes the following errors in the subject Decision of the Court of
Appeals, to wit:
I

The Court of Appeals gravely erred in holding that:


A. there was no urgency for the provisional arrest of respondent;
B. the municipal law (P.D. No. 1069) subordinates an international agreement (RPHongkong Agreement);
C. the supporting documents for a request for provisional arrest have to be
authenticated;
D. there was lack of factual and legal bases in the determination of probable cause;
and

E. the offense of accepting an advantage as an agent is not an offense under the AntiGraft and Corrupt Practices Act, as amended.
II

The Court of Appeals seriously erred in declaring as null and void the trial
courts Order of Arrest dated September 20, 1999 despite that (sic) respondent
waived the right to assail the order of arrest by filing in the trial court a motion
for release on recognizance, that (sic) the issue of legality of the order of
arrest was being determined by the trial court, and respondent mocked the
established rules of procedure intended for an orderly administration of
justice.
[17]

Petitioner takes exception to the finding of the Court of Appeals that the offense of
accepting an advantage as an agent is not punishable under Republic Act (R.A.) No.
3019 otherwise known as the Anti-Graft and Corrupt Practices Act, thus, obviating the
application of P.D. No. 1069 that requires the offense to be punishable under the laws
both of the requesting state or government and the Republic of the Philippines.
[18]

[19]

However, the issue of whether or not the rule of double criminality applies was not
for the Court of Appeals to decide in the first place. The trial court in which the petition
for extradition is filed is vested with jurisdiction to determine whether or not the offenses
mentioned in the petition are extraditable based on the application of the dual criminality
rule and other conditions mentioned in the applicable treaty. In this case, the presiding
Judge of Branch 10 of the RTC of Manila has yet to rule on the extraditability of the
offenses for which the respondent is wanted in Hong Kong. Therefore, respondent has
prematurely raised this issue before the Court of Appeals and now, before this Court.
Petitioners other arguments, however, are impressed with merit.
First. There was urgency for the provisional arrest of the respondent.
Section 20(a) of P.D. No. 1069 reads as follows:

Provisional Arrest. - (a) In case of urgency, the requesting state may, pursuant
to the relevant treaty or convention and while the same remains in force,
request for the provisional arrest of the accused, pending receipt of the
request for extradition made in accordance with Section 4 of this Decree;
and Article 11 of the Extradition Agreement between the Philippines and Hong Kong
provides in part that:

(1) In urgent cases, the person sought may, in accordance with the law of the
requested Party, be provisionally arrested on the application of the requesting
Party. x x x.
Nothing in existing treaties or Philippine legislation defines the meaning of urgency
as used in the context of a request for provisional arrest. Using reasonable standards of
interpretation, however, we believe that urgency connotes such conditions relating to
the nature of the offense charged and the personality of the prospective extraditee
which would make him susceptible to the inclination to flee or escape from the
jurisdiction if he were to learn about the impending request for his extradition and/or
likely to destroy the evidence pertinent to the said request or his eventual prosecution
and without which the latter could not proceed.
[20]

We find that such conditions exist in respondents case.


First. It should be noted that at the time the request for provisional arrest was made,
respondents pending application for the discharge of a restraint order over certain
assets held in relation to the offenses with which he is being charged, was set to be
heard by the Court of First Instance of Hong Kong on September 17, 1999. The Hong
Kong DOJ was concerned that the pending request for the extradition of the respondent
would be disclosed to the latter during the said proceedings, and would motivate
respondent to flee the Philippines before the request for extradition could be made.
[21]

There is also the fact that respondent is charged with seven (7) counts of accepting
an advantage as an agent and seven (7) counts of conspiracy to defraud, for each
count of which, if found guilty, he may be punished with seven (7) and fourteen (14)
years imprisonment, respectively. Undoubtedly, the gravity of the imposable penalty
upon an accused is a factor to consider in determining the likelihood that the accused
will abscond if allowed provisional liberty. It is, after all, but human to fear a lengthy, if
not a lifetime, incarceration. Furthermore, it has also not escaped the attention of this
Court that respondent appears to be affluent and possessed of sufficient resources to
facilitate an escape from this jurisdiction.
[22]

The arguments raised by the respondent in support of his allegation that he is not a
flight risk, are, to wit:
a) He did not flee or hide when the Central Bank and the NBI investigated the matter
alleged in the request for extradition of the Hongkong Government during the
second half of 1994; he has since been cleared by the Central Bank;

b) He did not flee or hide when the Hongkong Governments Independent Commission
Against Corruption (ICAC) issued a warrant for his arrest in August 1997; he has in
fact filed a case in Hongkong against the Hongkong Government for the release of
his frozen assets;
c) He never changed his address nor his identity, and has sought vindication of his
rights before the courts in Hongkong and in the Philippines;
d) He has never evaded arrest by any lawful authority, and certainly will never fly away
now that his mother is on her death bed.[23]

do not convince this Court. That respondent did not flee despite the investigation
conducted by the Central Bank and the NBI way back in 1994, nor when the warrant for
his arrest was issued by the Hong Kong ICAC in August 1997, is not a guarantee that
he will not flee now that proceedings for his extradition are well on the way. Respondent
is about to leave the protective sanctuary of his mother state to face criminal charges in
another jurisdiction. It cannot be denied that this is sufficient impetus for him to flee the
country as soon as the opportunity to do so arises.
Respondent also avers that his mothers impending death makes it impossible for
him to leave the country. However, by respondents own admission, his mother finally
expired at the Cardinal Santos Hospital in Mandaluyong City last December 5, 1999.
[24]

Second. Twelve (12) days after respondent was provisionally arrested, the
Philippine DOJ received from the Hong Kong DOJ, a request for the surrender or
extradition of respondent.
On one hand, Section 20(d) of P.D. No. 1069 reads as follows:

(d) If within a period of twenty (20) days after the provisional arrest the
Secretary of Foreign Affairs has not received the request for extradition and
the documents mentioned in Section 4 of this Decree, the accused shall be
released from custody.
On the other hand, Article 11(3) of the RP-Hong Kong Extradition Agreement
provides that:
(3) The provisional arrest of the person sought shall be terminated upon the expiration
of forty-five days from the date of arrest if the request for surrender has not been
received, unless the requesting Party can justify continued provisional arrest of the
person sought in which case the period of provisional arrest shall be terminated
upon the expiration of a reasonable time not being more than a further fifteen

days. This provision shall not prevent the re-arrest or surrender of the person sought
if the request for the persons surrender is received subsequently.

Petitioner contends that Article 11(3) of the RP-Hong Kong Extradition Agreement
which allows a period of forty-five (45) days for provisional arrest absent a formal
request for extradition has amended Section 20(d) of P.D. No. 1069 which provides only
a twenty (20) day period for the same.
[25]

Petitioners argument on this point, however, has been rendered moot and academic
by the fact that as early as November 5, 1999 or twelve (12) days after respondents
arrest on September 23, 1999, the Philippine DOJ already received from the Hong Kong
DOJ, a request for the surrender of respondent. The crucial event, after all, which tolls
the provisional detention period is the transmittal of the request for the extradition or
surrender of the extraditee. Hence, the question as to whether the period for provisional
arrest stands at twenty (20) days, as provided for in P.D. No. 1069, or has been
extended to forty-five (45) days under the Extradition Agreement between Hong Kong
and the Philippines is rendered irrelevant by the actual request made by the Hong Kong
DOJ for the extradition of respondent twelve (12) days after the request for the latters
provisional arrest.
Likewise, respondents contention in his motion for release pending appeal, that his
incarceration cannot continue beyond the twenty (20) day period without a petition for
his extradition having been filed in court, is simply bereft of merit. It is clear from the
above-cited provisions, that for the provisional arrest of an accused to continue, the
formal request for extradition is not required to be filed in court. It only need be received
by the requested state within the periods provided for by P.D. No. 1069 and the RPHong Kong Extradition Agreement. By no stretch of imagination may we infer from the
required receipt of the request for extradition and its accompanying documents, the
additional requisite that the same be filed in the court within the same periods.
Third. The request for provisional arrest of respondent and its accompanying
documents are valid despite lack of authentication.
Section 20(b) of P.D. No. 1069 reads as follows:
(b) A request for provisional arrest shall be sent to the Director of the National Bureau
of Investigation, Manila, either through the diplomatic channels or direct by post or
telegraph.

and Article 11(1) of the RP-Hong Kong Extradition Agreement provides in part that:

x x x. The application for provisional arrest shall contain an indication of


intention to request the surrender of the person sought and the text of a
warrant of arrest or a judgment of conviction against that person, a statement
of the penalty for that offense, and such further information, if any, as would
be necessary to justify the issue of a warrant of arrest had the offense been
committed, or the person convicted, within the jurisdiction of the requested
Party.
The language of the abovequoted provisions is clear. There is no requirement for
the authentication of a request for provisional arrest and its accompanying documents.
We also note that under Section 20(d) of P.D. No. 1069, viz:
(d) If within a period of 20 days after the request for provisional arrest the Secretary of
Foreign Affairs has not received the request for extradition and the documents
mentioned in Section 4 of this Decree, [26] the accused shall be released from
custody.[27]

the original or authenticated copies of the decision or sentence imposed upon the
accused by the requesting state or the criminal charge and the warrant of arrest issued
by the authority of the requesting state, need not accompany the request for provisional
arrest and may, in fact, be transmitted after the said request has already been received
by the requested state.
Furthermore, the pertinent provision of the RP-Hong Kong Extradition Agreement
enumerates the documents that must accompany the request, as follows: (1) an
indication of the intention to request the surrender of the person sought; (2) the text of a
warrant of arrest or judgment of conviction against that person; (3) a statement of
penalty for that offense; and (4) such further information as would justify the issue of a
warrant of arrest had the offense been committed, or the person convicted, within the
jurisdiction of the requested party. That the enumeration does not specify that these
documents must be authenticated copies, is not a mere omission of law. This may be
gleaned from the fact that while Article 11(1) does not require the accompanying
documents of a request for provisional arrest to be authenticated, Article 9 of the
same Extradition Agreement makes authentication a requisite for admission in evidence
of any document accompanying a request for surrender or extradition. In other
words, authentication is required for the request for surrender or extradition but not for
the request for provisional arrest.
[28]

[29]

We must also state that the above mentioned provisions of P.D. No. 1069 and the
RP-Hong Kong Extradition Agreement, as they are worded, serve the purpose sought to
be achieved by treaty stipulations for provisional arrest.
The process of preparing a formal request for extradition and its accompanying
documents, and transmitting them through diplomatic channels, is not only timeconsuming but also leakage-prone. There is naturally a great likelihood of flight by
criminals who get an intimation of the pending request for their extradition. To solve this
problem, speedier initial steps in the form of treaty stipulations for provisional arrest
were formulated. Thus, it is an accepted practice for the requesting state to rush its
request in the form of a telex or diplomatic cable, the practicality of the use of which is
conceded. Even our own Extradition Law (P.D. No. 1069) allows the transmission of a
request for provisional arrest via telegraph. In the advent of modern technology, the
telegraph or cable have been conveniently replaced by the facsimile machine.
Therefore, the transmission by the Hong Kong DOJ of the request for respondents
provisional arrest and the accompanying documents, namely, a copy of the warrant of
arrest against respondent, a summary of the facts of the case against him, particulars of
his birth and address, a statement of the intention to request his provisional arrest and
the reason therefor, by fax machine, more than serves this purpose of expediency.
[30]

[31]

[32]

Respondents reliance on Garvida v. Sales, Jr. is misplaced. The proscription


against the admission of a pleading that has been transmitted by facsimile machine has
no application in the case at bar for obvious reasons. First, the instant case does not
involve a pleading; and second, unlike the COMELEC Rules of Procedure which do not
sanction the filing of a pleading by means of a facsimile machine, P.D. No. 1069 and the
RP Hong Kong Extradition Agreement do not prohibit the transmission of a request for
provisional arrest by means of a fax machine.
[33]

In a futile attempt to convince this Court, respondent cites our ruling in the recent
case of Secretary of Justice v. Hon. Lantion, et al. , where we held that the right of an
extraditee to due process necessarily includes the right to be furnished with copies of
the extradition request and supporting papers, and to file a comment thereto during the
evaluation stage of the extradition proceedings.
[34]

Respondent posits that, in the same vein, the admission by the RTC of the request
for provisional arrest and its supporting documents despite lack of authentication is a
violation of the respondents right to due process. This contention fails to impress us.
Respondents contention is now a non-issue, in view of our Resolution dated
October 17, 2000 in the said case of Secretary of Justice v. Hon. Lantion, et
al. reconsidering and reversing our earlier decision therein. Acting on therein petitioners

Motion for Reconsideration, we held that therein respondent is bereft of the right to
notice and hearing during the evaluation stage of the extradition process. Worthy to
reiterate is the following concluding pronouncement of this Court in the said case:
[35]

[36]

In tilting the balance in favor of the interests of the State, the Court stresses
that it is not ruling that the private respondent has no right to due process at
all throughout the length and breath of the extrajudicial
proceedings. Procedural due process requires a determination of what
process is due, when it is due and the degree of what is due. Stated
otherwise, a prior determination should be made as to whether procedural
protections are at all due and when they are due, which in turn depends on
the extent to which an individual will be condemned to suffer grievous loss.
We have explained why an extraditee has no right to notice and hearing
during the evaluation stage of the extradition process. As aforesaid, P.D. 1069
xxx affords an extraditee sufficient opportunity to meet the evidence against
him once the petition is filed in court. The time for the extraditee to know the
basis of the request for his extradition is merely moved to the filing in court of
the formal petition for extradition. The extraditees right to know is momentarily
withheld during the evaluation stage of the extradition process to
accommodate the more compelling interest of the State to prevent escape of
potential extraditees which can be precipitated by premature information of
the basis of the request for his extradition. No less compelling at that stage of
the extradition proceedings is the need to be more deferential to the judgment
of a co-equal branch of the government, the Executive, which has been
endowed by our Constitution with greater power over matters involving our
foreign relations. Needless to state, this balance of interests is not a static but
a moving balance which can be adjusted as the extradition process moves
from the administrative stage to the judicial stage and to the execution stage
depending on factors that will come into play. In sum, we rule that
the temporary hold on private respondents privilege of notice and hearing is
a soft restraint on his right to due process which will not deprive him
of fundamental fairness should he decide to resist the request for his
extradition to the United States. There is no denial of due process as long as
fundamental fairness is assured a party.
[37]

Respondent also contends that the request for his provisional arrest was rendered
defective by the fact that the person who made the request was not a foreign diplomat
as provided for in Section 4 (2) of P.D. No. 1069, to wit:

SEC. 4. Request; By Whom Made; Requirements.(1) Any foreign state or government with which the Republic of the Philippines
has entered into extradition treaty or convention, and only when the relevant
treaty or convention, remains in force, may request for the extradition of any
accused who is suspected of being in the territorial jurisdiction of the
Philippines.
(2) The request shall be made by the Foreign Diplomat of the requesting state
or government, addressed to the Secretary of Foreign Affairs, x x x.
This contention deserves scant consideration. The foregoing refers to the
requirements for a request for extradition and not for a request for provisional
arrest. The pertinent provisions are Article 11(2) which states:

An application for provisional arrest may be forwarded through the same


channels as a request for surrender or through the International Criminal
Police Organization (INTERPOL);
[38]

and Article 8(1) which provides:

Requests for surrender and related documents shall be conveyed through the
appropriate authority as may be notified from time to time by one party to
another.
[39]

Hence, there is sufficient compliance with the foregoing if the request for provisional
arrest is made by an official who is authorized by the government of the requesting state
to make such a request and the authorization is communicated to the requested state.
The request for provisional arrest of respondent was signed by Wayne Walsh,
Senior Government Counsel of the Mutual Legal Assistance Unit, International Law
Division of the Hong Kong DOJ who stated in categorical terms that:

The Department of Justice (Mutual Legal Assistance Unit) of the HKSAR is


the appropriate authority under the Agreement to make requests for
provisional arrest and surrender. I confirm that as a member of the Mutual

Legal Assistance Unit, I am authorized (sic) to make this request for


provisional arrest.
[40]

Last. There was sufficient factual and legal basis for the determination of probable
cause as a requisite for the issuance of the Order of Arrest.
[41]

We have defined probable cause for the issuance of a warrant of arrest as the
existence of such facts and circumstances that would lead a reasonably discreet and
prudent person to believe that an offense has been committed by the person sought to
be arrested. The determination of probable cause is a function of the Judge. Such is
the mandate of our Constitution which provides that a warrant of arrest shall issue only
upon probable cause to be determined personally by the judge after examination under
oath or affirmation of the complainant and the witnesses he may produce. In the case
of Allado v. Diokno, we stated that personal determination by the Judge of the
existence of probable cause means that he [42]

[43]

[44]

(a) shall personally evaluate the report and the supporting documents submitted by the
fiscal regarding the existence of probable cause and, on the basis thereof, issue a
warrant of arrest; or, (b) if on the basis thereof he finds no probable cause, may
disregard the fiscals report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusion on the existence of probable cause.
[45]

The Judge cannot, therefore, merely rely on the certification issued by the
prosecutor. He is, however, not required to personally examine ipso facto the
complainant and his witnesses.He sufficiently complies with the requirement of personal
determination if he reviews the information and the documents attached thereto, and on
the basis thereof forms a belief that the accused is probably guilty of the crime with
which he is being charged. The Judge determines the existence of probable cause to
pass upon whether a warrant of arrest should be issued against the accused, that is,
whether there is a necessity for placing him under immediate custody in order not to
frustrate the ends of justice.
[46]

[47]

The request for the respondents provisional arrest was accompanied by facsimile
copies of the outstanding warrant of arrest issued by the Hong Kong government, a
summary of the facts of the case against respondent, particulars of his birth and
address, an intention to request his provisional arrest and the reason therefor. The said
documents were appended to the application for respondents provisional arrest filed in
the RTC, and formed the basis of the judges finding of probable cause for the
issuance of the warrant of arrest against respondent.
[48]

Respondent alleges the contrary and surmises that all that the trial judge did was to
interview NBI agent Saunar who filed the application for the issuance of the warrant of
provisional arrest, and that her honor did not probably even notice that the supporting
documents were not authenticated. The allegation, baseless and purely speculative, is
one which we cannot countenance in view of the legal presumption that official duty has
been regularly performed.
[49]

[50]

That the Presiding Judge of RTC Manila, Branch 19, made a personal
determination of the existence of probable cause on the basis of the documents
forwarded by the Hong Kong DOJ is further supported by the Order of Arrest against
respondent which states:

ORDER
This treats of the Application For Provisional Arrest of Juan Antonio Muoz, for
the purpose of extradition from the Republic of the Philippines.
This application was filed in behalf of the Government of Hong Kong Special
Administrative Region for the provisional arrest of Juan Antonio Muoz,
pursuant to Section 20 of Presidential Decree No. 1069, in relation to
paragraph 1, Article 11 of the Agreement for the Surrender of Accused and
Convicted Persons between the Republic of the Philippines and Hong Kong
onprovisional arrest. The application alleged that Juan Antonio Muoz is
wanted in Hong Kong for seven (7) counts of the offense of accepting an
advantage as an agent, contrary to Section 9(1) (9) of the Prevention of
Bribery Ordinance Cap. 201 of Hong Kong and seven (7) counts of the
offense of conspiracy to defraud, contrary to the Common Law of Hong Kong.
That a warrant of arrest was issued by the Magistrates Court at Eastern
Magistracy, Hong Kong on August 23, 1997, pursuant to the 14 charges filed
against him before the issuing Court.Juan Antonio Muoz is now alleged to be
in the Philippines. He was born on June 24, 1941, a holder of Philippines
Passport No. 2K 934808, formerly an employee of the Central Bank of the
Philippines and with address at Phase 3, BF Homes, No. 26 D C Chuan
Street, Metro Manila.
That there is an urgency in the issuance of the provisional arrest warrant for
the reason that the application to discharge the restraint over the funds,

subject of the offenses, in his Citibank Account in Hong Kong was set for
hearing on September 17, 1999 and that his lawyer in Hong Kong will be
notified of the request of the Hong Kong Government for his provisional arrest
(sic) and Juan Antonio E. Muoz upon knowledge of the request.
Considering that the Extradition treaty referred to is part of our systems of
laws and recognized by Presidential Decree No. 1069 and the Constitution
itself by the adoption of international laws, treaties and conventions as parts
(sic) of the law of the land, the application for provisional arrest of Juan
Antonio Muoz is hereby GRANTED. Let a warrant for his provisional arrest
therefore issue.
SO ORDERED. (Underscoring supplied.)
[51]

Finally, petitioner also avers that the respondent has waived his right to assail the
validity of his provisional arrest when he filed a motion for release on
recognizance. Considering that we find petitioners other contentions to be impressed
with merit, there is no need to delve further into this particular issue.
WHEREFORE, the petition is GRANTED, and the assailed Decision of the Court of
Appeals, dated November 9, 1999, in CA-G.R. SP No. 55343 is hereby REVERSED
and SET ASIDE. Respondents Urgent Motion For Release Pending Appeal is hereby
DENIED.
SO ORDERED.
[G.R.

No. 152807. August 12, 2003]

HEIRS OF LOURDES SAEZ SABANPAN: BERNARDO S. SABANPAN,


RENE S. SABANPAN, DANILO S. SABANPAN and THELMA S.
CHU; HEIRS OF ADOLFO SAEZ: MA. LUISA SAEZ TAPIZ, MA.
VICTORIA SAEZ LAPITAN, MA. BELEN SAEZ and EMMANUEL
SAEZ; and HEIRS OF CRISTINA SAEZ GUTIERREZ: ROY SAEZ
GUTIERREZ and LUIS SAEZ JR., petitioners, vs. ALBERTO C.
COMORPOSA, HERDIN C. COMORPOSA, OFELIA C. ARIEGO,
REMEDIOS COMORPOSA, VIRGILIO A. LARIEGO, BELINDA M.
COMORPOSA and ISABELITA H. COMORPOSA, respondents.
[1]

1-a

DECISION
PANGANIBAN, J.:

The admissibility of evidence should be distinguished from its probative


value. Just because a piece of evidence is admitted does not ipso facto mean
that it conclusively proves the fact in dispute.
The Case
Before us is a Petition for Review under Rule 45 of the Rules of Court,
seeking to set aside the August 7, 2001 Decision and the February 27, 2002
Resolution of the Court of Appeals (CA) in CA-GR SP No. 60645. The
dispositive portion of the assailed Decision reads as follows:
[2]

[3]

WHEREFORE, in view of all the foregoing, the Court hereby AFFIRMS the
Decision dated 22 June 2000 rendered by Branch 18 of the Regional Trial Court of
Digos, Davao del Sur, REVERSING andSETTING ASIDE the Decision of the
Municipal Trial Court of Sta. Cruz, Davao del Su[r].
[4]

The assailed Resolution denied petitioners Motion for Reconsideration.


[5]

The Facts
The CA summarized the factual antecedents of the case as follows:
A [C]omplaint for unlawful detainer with damages was filed by [petitioners] against
[respondents] before the Santa Cruz, Davao del Sur Municipal Trial Court.
The [C]omplaint alleged that Marcos Saez was the lawful and actual possessor of Lot
No. 845, Land 275 located at Darong, Sta. Cruz, Davao del Sur with an area of 1.2
hectares. In 1960, he died leaving all his heirs, his children and grandchildren.
In 1965, Francisco Comorposa who was working in the land of Oboza was terminated
from his job. The termination of his employment caused a problem in relocating his
house. Being a close family friend of [Marcos] Saez, Francisco Comorposa
approached the late Marcos Saezs son, [Adolfo] Saez, the husband of Gloria Leano
Saez, about his problem. Out of pity and for humanitarian consideration, Adolfo
allowed Francisco Comorposa to occupy the land of Marcos Saez. Hence, his nipa hut

was carried by his neighbors and transferred to a portion of the land subject matter of
this case. Such transfer was witnessed by several people, among them, Gloria Leano
and Noel Oboza. Francisco Comorposa occupied a portion of Marcos Saez property
without paying any rental.
Francisco Comorposa left for Hawaii, U.S.A. He was succeeded in his possession by
the respondents who likewise did not pay any rental and are occupying the premises
through petitioners tolerance.
On 7 May 1998, a formal demand was made upon the respondents to vacate the
premises but the latter refused to vacate the same and claimed that they [were] the
legitimate claimants and the actual and lawful possessor[s] of the premises. A
[C]omplaint was filed with the barangay office of Sta. Cruz[,] Davao del Sur, but the
parties failed to arrive at an amicable settlement. Thus, the corresponding Certificate
to File Action was issued by the said barangay and an action for unlawful detainer was
filed by petitioners against respondents.
Respondents, in their Answer, denied the material allegations of the [C]omplaint and
alleged that they entered and occupied the premises in their own right as true, valid
and lawful claimants, possessors and owners of the said lot way back in 1960 and up
to the present time; that they have acquired just and valid ownership and possession of
the premises by ordinary or extraordinary prescription, and that the Regional Director
of the DENR, Region XI has already upheld their possession over the land in question
when it ruled that they [were] the rightful claimants and possessors and [were],
therefore, entitled to the issuance of a title.
The Municipal Trial Court of Sta. Cruz, Davao del Sur rendered judgment in favor of
petitioners but the Regional Trial Court of Digos, Davao del Sur, on appeal, reversed
and set aside the said decision. x x x
[6]

Ruling of the Court of Appeals


Affirming the Regional Trial Court (RTC), the CA upheld the right of
respondents as claimants and possessors. The appellate court held that -although not yet final -- the Order issued by the regional executive director of
the Department of Environment and Natural Resources (DENR) remained in
full force and effect, unless declared null and void. The CA added that the

Certification issued by the DENRs community environment and natural


resources (CENR) officer was proof that when the cadastral survey was
conducted, the land was still alienable and was not yet allocated to any
person.
According to the CA, respondents had the better right to possess alienable
and disposable land of the public domain, because they have suffiently proven
their actual, physical, open, notorious, exclusive, continuous and
uninterrupted possession thereof since 1960. The appellate court deemed as
self-serving, and therefore incredible, the Affidavits executed by Gloria Leano
Saez, Noel Oboza and Paulina Paran.
Hence, this Petition.

[7]

The Issue
In their Memorandum, petitioners raise the following issues for the Courts
consideration:
I

Did the Court of Appeals gravely abuse its discretion and [err] in sustaining the ruling
of the Regional Trial Court giving credence to the Order dated 2 April 1998 issued by
the regional executive director?
II

Did the Court of Appeals gravely abuse its discretion and err in sustaining the
Regional Trial Courts ruling giving weight to the CENR Officers Certification, which
only bears the facsimile of the alleged signature of a certain Jose F. Tagorda and,
[worse], it is a new matter raised for the first time on appeal?
III

Did the Court of Appeals gravely abuse its discretion and err in holding that the land
subject matter of this case has been acquired by means of adverse possession and
prescription?
IV

Did the Court of Appeals gravely abuse its discretion, and err in declaring that, neither
is there error on the part of the Regional Trial Court, when it did not give importance
to the affidavits by Gloria Leano Saez, Noel [Oboza], and Paulina Paran for allegedly
being self serving?
[8]

To facilitate the discussion, the fourth and the third issues shall be
discussed in reverse sequence.
The Courts Ruling
The Petition has no merit.
First Issue:
The DENR Order of April 2, 1998
Petitioners claim that the reliance of the CA upon the April 2, 1998 Order
issued by the regional director of the DENR was erroneous. The reason was
that the Order, which had upheld the claim of respondents, was supposedly
not yet final and executory. Another Order dated August 23, 1999, issued
later by the DENR regional director, allegedly held in abeyance the effectivity
of the earlier one.
[9]

Under the Public Land Act, the management and the disposition of public
land is under the primary control of the director of lands (now the director of
the Lands Management Bureau or LMB), subject to review by the DENR
secretary. As a rule, then, courts have no jurisdiction to intrude upon matters
properly falling within the powers of the LMB.
[10]

[11]

[12]

[13]

The powers given to the LMB and the DENR to alienate and dispose of
public land does not, however, divest regular courts of jurisdiction over
possessory actions instituted by occupants or applicants to protect their
respective possessions and occupations. The power to determine who has
actual physical possession or occupation of public land and who has the
better right of possession over it remains with the courts. But once the DENR
has decided, particularly through the grant of a homestead patent and the
issuance of a certificate of title, its decision on these points will normally
prevail.
[14]

[15]

[16]

Therefore, while the issue as to who among the parties are entitled to a
piece of public land remains pending with the DENR, the question of recovery
of possession of the disputed property is a matter that may be addressed to
the courts.
Second Issue:
CENR Officers Certification
Petitioners contend that the CENR Certification dated July 22, 1997 is a
sham document, because the signature of the CENR officer is a mere
facsimile. In support of their argument, they cite Garvida v. Sales Jr. and
argue that the Certification is a new matter being raised by respondents for
the first time on appeal.
[17]

We are not persuaded.


In Garvida, the Court held:
A facsimile or fax transmission is a process involving the transmission and
reproduction of printed and graphic matter by scanning an original copy, one
elemental area at a time, and representing the shade or tone of each area by a specified
amount of electric current. x x x
[18]

Pleadings filed via fax machines are not considered originals and are at
best exact copies. As such, they are not admissible in evidence, as there is no
way of determining whether they are genuine or authentic.
[19]

The Certification, on the other hand, is being contested for bearing a


facsimile of the signature of CENR Officer Jose F. Tagorda. The facsimile
referred to is not the same as that which is alluded to in Garvida. The one
mentioned here refers to a facsimile signature, which is defined as a signature
produced by mechanical means but recognized as valid in banking, financial,
and business transactions.
[20]

Note that the CENR officer has not disclaimed the Certification. In fact, the
DENR regional director has acknowledged and used it as reference in his
Order dated April 2, 1998:

x x x. CENR Officer Jose F. Tagorda, in a CERTIFICATION dated 22 July 1997, certified


among others, that: x x x per records available in his Office, x x x the controverted lot
x x x was not allocated to any personx x x.
[21]

If the Certification were a sham as petitioner claims, then the regional


director would not have used it as reference in his Order. Instead, he would
have either verified it or directed the CENR officer to take the appropriate
action, as the latter was under the formers direct control and supervision.
Petitioners claim that the Certification was raised for the first time on
appeal is incorrect. As early as the pretrial conference at the Municipal Trial
Court (MTC), the CENR Certification had already been marked as evidence
for respondents as stated in the Pre-trial Order. The Certification was not
formally offered, however, because respondents had not been able to file their
position paper.
[22]

Neither the rules of procedure nor jurisprudence would sanction the


admission of evidence that has not been formally offered during the trial. But
this evidentiary rule is applicable only to ordinary trials, not to cases covered
by the rule on summary procedure -- cases in which no full-blown trial is held.
[23]

[24]

[25]

Third Issue:
Affidavit of Petitioners Witnesses
Petitioners assert that the CA erred in disregarding the Affidavits of their
witnesses, insisting that the Rule on Summary Procedure authorizes the use
of affidavits. They also claim that the failure of respondents to file their position
paper and counter-affidavits before the MTC amounts to an admission by
silence.
The admissibility of evidence should not be confused with its probative
value. Admissibility refers to the question of whether certain pieces of
evidence are to be considered at all, while probative value refers to the
question of whether the admitted evidence proves an issue. Thus, a
particular item of evidence may be admissible, but its evidentiary weight
[26]

depends on judicial evaluation within the guidelines provided by the rules of


evidence.
[27]

While in summary proceedings affidavits are admissible as the witnesses


respective testimonies, the failure of the adverse party to reply does not ipso
facto render the facts, set forth therein, duly proven. Petitioners still bear the
burden of proving their cause of action, because they are the ones asserting
an affirmative relief.
[28]

Fourth Issue:
Defense of Prescription
Petitioners claim that the court a quo erred in upholding the defense of
prescription proffered by respondents. It is the formers contention that since
the latters possession of the land was merely being tolerated, there was no
basis for the claim of prescription. We disagree.
For the Court to uphold the contention of petitioners, they have first to
prove that the possession of respondents was by mere tolerance. The only
pieces of evidence submitted by the former to support their claim were a
technical description and a vicinity map drawn in accordance with the survey
dated May 22, 1936. Both of these were discredited by the CENR
Certification, which indicated that the contested lot had not yet been allocated
to any person when the survey was conducted. The testimony of petitioners
witnesses alone cannot prevail over respondents continued and uninterrupted
possession of the subject lot for a considerable length of time.
[29]

[30]

Furthermore, this is an issue of fact that cannot, as a rule, be raised in a


petition for review under Rule 45.
[31]

WHEREFORE,
the
Petition
is DENIED and
Decision AFFIRMED. Costs against petitioners.
SO ORDERED.

the

assailed