1- 16 G.R. No. 177384.

December 8, 2009
Josephine Wee Vs. Republic of the Philippines
Second Division

In land registration cases, the applicant has the burden to show that he or she is the real and
absolute owner in fee simple of the land sought to be registered.1 It is also important to bear in
mind that one who seeks registration of title must prove his or her claim with "well-nigh
incontrovertible" evidence.2 In this case, petitioner miserably failed to show that she is the real
and absolute owner in fee simple of the land sought to be registered.

Assailed in this Petition for Review on Certiorari3 under Rule 45 of the Rules of Court are the April
28, 2006 Decision4 of the Court of Appeals (CA) and its subsequent Resolution 5 dated April 3,
2007 in CA-G.R. CV No. 76519. Said Decision and Resolution reversed and set aside the April 2,
2002 Judgment6 of the Regional Trial Court (RTC) of Tagaytay City, Branch 18 and held that
petitioner was not entitled to the requested registration of title.

Proceedings before the Regional Trial Court

On December 22, 1994, petitioner filed an Application for Registration of Title 7 over a 4,870-
square meter parcel of land situated in Barangay Puting Kahoy, Silang, Cavite, designated as Lot
No. 8349 (Cadastral Lot. No. 452-D).

In brief, petitioner alleged in her application that she is the owner in fee simple of the subject
property by virtue of a Deed of Absolute Sale8 dated February 1, 1993 executed by Julian
Gonzales in her favor. Petitioner claimed the benefits of the Property Registration Decree9 or,
should said Decree be inapplicable, the benefits of Chapter VIII of Commonwealth Act No. 141
(1936),10 because she and her predecessor-in-interest have been in open, continuous, public,
peaceful and adverse possession of the land since time immemorial.

On March 15, 1995, the Republic of the Philippines, through the Office of the Solicitor General
(OSG), filed its Opposition11 alleging that neither the petitioner nor her predecessor-in-interest
has been in open, continuous, exclusive and notorious possession and occupation of Lot No.
8349 since June 12, 1945 or prior thereto. The OSG likewise averred that the muniments of title
and tax payment receipts submitted by the petitioner do not constitute competent or sufficient
evidence of a bona fide acquisition of the subject lot, or of the petitioner’s open, continuous,
exclusive and notorious possession and occupation thereof in the concept of owner since June
12, 1945 or prior thereto. It asserted that Lot No. 8349 is part of the public domain and
consequently prayed for the dismissal of the application for registration.

Petitioner presented the following pieces of documentary evidence before the trial court:

1) Deed of Absolute Sale between Josephine Wee and Julian Gonzales dated February
1, 1993;12

2) Tax Declarations in the name of Julian Gonzales for the years 1957, 1961, 1967,
1980, and 1985;13

3) Tax Declarations in the name of Josephine Wee from 1993 onwards;14

4) Receipts for tax payments made by Josephine Wee from 1993-1999;15

5) Affidavit of Seller-Transferor executed by Julian Gonzales on February 10, 1993;16

 6) Affidavit of Ownership, Aggregate Land Holding and Non-Tenancy executed by Julian
Gonzales on February 10, 1993;17

7) Affidavit of Non-Tenancy executed by Julian Gonzales on February 10, 1993;18

8) Salaysay executed by Juana Macatangay Gonzales, Erlinda Gonzales Batingal and

Remedios Gonzales Bayan;19

9) Certification dated March 2, 2000 by the Department of Environment and Natural

Resources (DENR) stating that Lot No. 8349 was shown to be within the Alienable or
Disposable Land per Land Classification Map No. 3013 established under FAO-4-1656
on March 15, 1982;20

10) Survey Plan of Lot No. 8349;21 and

11) Surveyor’s Certificate, Technical Description and Tracing Cloth.22

She also presented the testimonies of the following witnesses who were all cross-examined by
the Republic through the public prosecutor:

1) Josephine Wee, who testified that she purchased Lot No. 8349 from Julian Gonzales
through a Deed of Absolute Sale dated February 1, 1993 and immediately took
possession thereof after the sale; that she did not cultivate it because it is planted with
coffee; that she paid for all the real property taxes subsequent to the sale; that she
caused the preparation of a survey plan; that the property is not part of the public domain
or any river or military reservation; that there are no adverse claimants and no cases
were filed against her after the sale involving said lot and that she is not doing anything
with the property because it is not "productive".23

2) Juana Gonzales, the 75-year old widow of Julian Gonzales, who declared that she and
her husband sold Lot No. 8349 to the petitioner and identified her husband’s signature
and her own thumbmark. She testified that she and her late husband had been in
possession of Lot No. 8349 prior to the sale to Josephine Wee; that her husband
inherited the property from his parents "a long time ago"; that her husband already had
the property when they got married and that she and Julian Gonzales began living
together in 1946. She also identified and affirmed the due execution and authenticity of
her Salaysay, as well as the documents signed by her husband.24

3) Remedios Gonzales Bayan, the 39-year old daughter of Julian and Juana Gonzales,
who testified that she witnessed the execution of the Deed of Absolute Sale between her
father whose signature she identified and the applicant in February 1993. She also
identified and affirmed the due execution and authenticity of her Salaysay.25

Ruling of the Regional Trial Court

On April 2, 2002, the RTC promulgated in favor of the petitioner a Judgment,26 pertinent portions
of which read:

Culled from the evidence on record, both testimonial and documentary, are facts which
satisfactorily establish applicant’s ownership in fee simple of the parcel of land, subject matter of
the instant proceedings, to wit: that by means of an appropriate deed of sale, the applicant has
acquired said property by purchase from Julian Gonzales on February 1, 1993; that the same
parcel was declared for taxation purposes; that all the realty taxes due thereon have been duly
paid. Likewise, this Court could well-discern from the survey plan covering the same property and
other documents presented, more particularly the tracing cloth plan which was presented as
additional evidence in support of the application, that the land sought to be registered is
agricultural and not within any forest zone or the public domain; that the land is not covered by
any public land application/patent, and that there is no other adverse claimant thereof; and
further, that tacking her predecessors-in-interest’s possession to applicant’s, the latter appears to
be in continuous and public possession thereof for more than thirty (30) years.

On the basis of the foregoing facts and considering that applicant is a Filipino citizen not
otherwise disqualified from owning real property, this Court finds that she has satisfied all the
conditions essential to the grant of her application pursuant to the provisions of the Land
Registration Law, as amended.1avvphi1

WHEREFORE, this Court hereby approves this application for registration and thus places under
the operation of Act 141, Act 496 and/or P.D. 1529, otherwise known as Property Registration
Law, the lands described in Plan Ap-04-010262, Lot 8349 and containing an area of Four
Thousand Eight Hundred Seventy (4,870) Square Meters as supported by its technical
description now forming part of the record of this case, in addition to other proofs adduced in the
name of JOSEPHINE WEE, who is of legal age, single and with residence at 1345 Claro M.
Recto Avenue, Sta, Cruz, Manila.

Once this Decision becomes final and executory, the corresponding decree of registration shall
forthwith issue.

SO ORDERED.

Proceedings before the Court of Appeals

Unsatisfied, the Republic, through the OSG, filed its Notice of Appeal on April 26, 2002, alleging
that the RTC erred in granting the application for registration considering that petitioner failed to
comply with all the legal requirements for judicial confirmation of her alleged title. In particular, the
OSG claimed that Lot No. 8349 was classified as alienable and disposable land only on March
15, 1982, as per Certification issued by the DENR. Thus, petitioner and her predecessor-in-
interest could not have been in possession of the property since June 12, 1945, or earlier. The
OSG also pointed out that the tax declarations presented by petitioner are fairly recent and do not
show petitioner and her predecessor-in-interest’s nature of possession. Furthermore, the original
tracing cloth plan was not presented in evidence.

Ruling of the Court of Appeals

The CA reversed the RTC Judgment. It held that petitioner failed to prove that she and her
predecessor-in-interest have been in possession and occupation of the subject lot under
a bona fide claim of ownership since June 12, 1945. Thus:

In granting the application for registration of title, the court a quo merely relied on the deed of sale
executed by Julian Gonzales, in favor of applicant-appellee on February 1, 1993, the tax
declarations and tax receipts. It is interesting to note that Juana Gonzales, widow of Julian
Gonzales, after identifying the deed of sale executed by her deceased husband in favor of
applicant-appellee, merely stated that the lot subject thereof was inherited by Julian from his
parents a long time ago and that Julian was in possession of the lot since 1946 when they started
living together. For her part, applicant-appellee testified that she immediately took possession of
the subject lot, which was planted with coffee, after acquiring the same and that she is not doing
anything on the lot because it is not productive. As pointed out by the Republic, applicant-
appellee and Juana Gonzales failed to specify what acts of development, cultivation, and
maintenance were done by them on the subject lot. x x x

xxxx

In the case at bar, applicant-appellee merely claimed that the subject lot is planted with coffee.
However, no evidence was presented by her as to who planted the coffee trees thereon. In fact,
applicant-appellee admitted that she is not doing anything on the subject lot because it is not
productive, thereby implying that she is not taking care of the coffee trees thereon. Moreover, tax
declarations and tax receipts are not conclusive evidence of ownership but are merely indicia of a
claim of ownership, aside from the fact that the same are of recent vintage. 27

Hence, this petition.

Issues

Petitioner’s arguments

1) The testimony of Juana Gonzales proves that petitioner’s predecessor-in-interest,

Julian Gonzales, occupied Lot No. 8349 even prior to 1946;

2) The fact that the property is planted with coffee, a fruit bearing tree, reveals that the lot
is planted, cultivated and cared for. Thus, there was not only effective and active
possession and occupation but actual cultivation and tending of the coffee plantation; and

3) The fact that the land was declared for tax purposes as early as 1957 shows that the
land was actively possessed and occupied by petitioner and her predecessor-in-interest.

Respondent’s arguments:

1) Since Lot No. 8349 became part of the alienable and disposable land only on March
15, 1982, petitioner could not have been considered as having been in open, continuous,
exclusive and notorious possession and occupation of subject property under a bona
fide claim of ownership; and

2) There is no proof that petitioner or Julian Gonzales undertook any clear act of
dominion or ownership over Lot No. 8349, since there are no structures, improvements,
or plantings on the property.

Our Ruling

The petition lacks merit.

Petitioner failed to prove open, continuous, exclusive and notorious possession of the subject
property.

In Director, Land Management Bureau v. Court of Appeals,28 we explained that –

x x x The phrase "adverse, continuous, open, public, peaceful and in concept of owner," by which
characteristics private respondent describes his possession and that of his parents, are mere
conclusions of law requiring evidentiary support and substantiation. The burden of proof is on the
private respondent, as applicant, to prove by clear, positive and convincing evidence that the
alleged possession of his parents was of the nature and duration required by law. His bare
allegations without more, do not amount to preponderant evidence that would shift the burden of
proof to the oppositor.

Here, we find that petitioner’s possession of the lot has not been of the character and length of
time required by law. The relevant provision of the Property Registration Decree relied upon by
petitioner reads –

SEC. 14. Who may apply. – The following persons may file in the proper Court of First Instance
an application for registration of title to land, whether personally or through their duly authorized
representatives:

(1) Those who by themselves or through their predecessors-in-interest have been in

open, continuous, exclusive and notorious possession and occupation of alienable and
disposable lands of the public domain under a bona fide claim of ownership since June
12, 1945, or earlier.1avvphi1

(2) Those who have acquired ownership of private lands by prescription under the
provisions of existing laws. x x x

Unfortunately, petitioner failed to prove that she and her predecessor-in-interest have been in
open, continuous, exclusive and notorious possession and occupation of the subject property
under a bona fide claim of ownership since June 12, 1945.

First, there is nothing in the records which would substantiate her claim that Julian Gonzales was
in possession of Lot No. 8349 since 1945, other than the bare allegations of Juana
Gonzales.29 Certainly, these unsubstantiated statements do not meet the required quantum of
evidence in land registration cases. In fact, contrary to her testimony that her late husband
inherited the property from his parents "a long time ago", or even prior to 1945, the earliest tax
declaration that was presented in this case is one declared by Julian Gonzales only in 1957 –
long after June 1945.

It bears stressing that petitioner presented only five tax declarations (for the years 1957, 1961,
1967, 1980 and 1985) for a claimed possession and occupation of more than 45 years (1945-
1993). This type of intermittent and sporadic assertion of alleged ownership does not prove open,
continuous, exclusive and notorious possession and occupation. In any event, in the absence of
other competent evidence, tax declarations do not conclusively establish either possession or
declarant’s right to registration of title.30

Petitioner failed to prove possession in the concept of an owner.

Second, and more importantly, we agree with the CA that petitioner was unable to demonstrate
that the alleged possession was in the concept of an owner, since she could not point to any acts
of occupation, development, cultivation or maintenance over the property. Petitioner claims that
because the property is planted with coffee, a fruit-bearing tree, it automatically follows that the lot
is cultivated, showing actual possession and occupation. However, petitioner failed to explain
who planted the coffee, whether these plants are maintained or harvested or if any other acts
were undertaken by petitioner or her predecessor-in-interest to cultivate the property.

Even if we were to assume that the coffee was planted by petitioner’s predecessor-in-interest,
"mere casual cultivation" of the land does not amount to exclusive and notorious possession that
would give rise to ownership.31The presence of an unspecified number of coffee plants, without
proof that petitioner or her predecessor-in-interest actually and deliberately cultivated them is not
sufficient to support a claim of title. In fact, the five tax declarations in the name of Julian
Gonzales described the lot as "unirrigated riceland". No improvements or plantings were declared
or noted in any of these tax declarations. It was only in petitioner’s 1993 tax declaration that the
land was described as planted with coffee. We are, therefore, constrained to conclude that the
mere existence of an unspecified number of coffee plants, sans any evidence as to who planted
them, when they were planted, whether cultivation or harvesting was made or what other acts of
occupation and ownership were undertaken, is not sufficient to demonstrate petitioner’s right to
the registration of title in her favor.

WHEREFORE, the petition is DENIED. The Court of Appeals’ April 28, 2006 Decision in CA-G.R.
CV No. 76519 and its Resolution dated April 3, 2007 denying petitioner’s Motion for
Reconsideration are both AFFIRMED.

SO ORDERED.

2- 40 G.R. No. 158385. February 12, 2010

Modesto Palali Vs. Juliet Awisan, represented by her Attorney-in-fact Gregorio Awisan, 2nd Division

A person occupying a parcel of land, by himself and through his predecessors-in-interest, enjoys
the presumption of ownership. Anyone who desires to remove him from the property must
overcome such presumption by relying solely on the strength of his claims rather than on the
weakness of the defense.

This Petition for Review on Certiorari1 under Rule 45 of the Rules of Court assails the September
27, 2002 Decision2 and the April 25, 2003 Resolution3 of the Court of Appeals (CA) in CA-G.R.
CV No. 52942. The challenged Decision disposed as follows:

WHEREFORE, premises considered, the assailed decision of the trial court dated May 24, 1996
is hereby REVERSED AND SET ASIDE and a new one is entered:

1. Awarding the subject land in favor of the [respondent] with the exclusion of the area
where the residential house of the [petitioner] is erected.

2. Ordering the [petitioner] to vacate the rootcrop land and surrender its possession in
favor of the [respondent], and enjoining the [petitioner] to refrain from doing any act
disturbing the [respondent’s] peaceful possession and enjoyment of the same.

3. Cancelling Tax Declaration No. 31297 of the [petitioner] insofar as the rootcrop land of
.0648 hectares is concerned, with the exclusion of his residential land. All other reliefs
and remedies prayed for are DENIED, there being no sufficient evidence to warrant
granting them.

SO ORDERED.4

Factual Antecedents

Respondent Juliet Awisan claimed to be the owner5 of a parcel of land in Sitio Camambaey,
Tapapan, Bauko, Mountain Province, allegedly consisting of 6.6698 hectares 6 and covered by
Tax Declaration No. 147 in her name.7On March 7, 1994, she filed an action for quieting of title
against petitioner Modesto Palali, alleging that the latter occupied and encroached on the
northern portion of her property and surreptitiously declared it in his name for tax purposes. 8 We
shall refer to this land occupied by petitioner, which allegedly encroached on the northern portion
of respondent’s 6.6698-hectare land, as the "subject property". Respondent prayed to be
declared the rightful owner of the northern portion, for the cancellation of petitioner’s tax
declaration, and for the removal of petitioner and his improvements from the property. 9

Respondent’s (Plaintiff’s) Allegations

According to respondent, the 6.6698 hectare land was originally owned by her father, Cresencio
Cadwising. The latter testified that he and his wife were able to consolidate ownership over the
land by declaring them from public land as well as by purchasing from adjoining landowners. He
admitted including in his tax declaration a communal sacred lot (patpatayan) even if he did not
acquire free patent title over the same. As for the properties he bought, these were generally
purchased without any documentation, save for two.10

Cadwising also claimed having introduced improvements on the subject property as early as the
1960s.11 The 6.6698 hectare land was mortgaged to the Development Bank of the Philippines
(DBP), which acquired it in the foreclosure sale. DBP then sold the land to one Tico Tibong, who
eventually donated the same to respondent.

Petitioner’s (Defendant’s) Allegations

In his defense, petitioner denied the encroachment and asserted ownership over the subject
property. He maintained that he and his ancestors or predecessors-in-interest have openly and
continuously possessed the subject land since time immemorial. He and his siblings were born on
that land and, at that time, the area around the house was already planted with bananas, alnos,
and coffee.12 When his mother died, he buried her in the lot beside the house in 1975; while his
father was buried near the same plot in 1993.13 His own home had been standing on the property
for the past 20 years. Petitioner insisted that during this entire time, no one disturbed his
ownership and possession thereof.14

Sometime in 1974, petitioner declared the said land in his name for taxation purposes. 15 The said
Tax Declaration indicates that the property consists of 200 square meters of residential lot and
648 square meters of rootcrop land (or a total of 848 square meters).

Proceedings before the Regional Trial Court

It is worth mentioning that both the complaint16 and the pre-trial brief17 of respondent alleged
encroachment only on the northern portion of her 6.6698-hectare land. During trial, however,
respondent’s attorney-in-fact, Gregorio Awisan,18 and respondent’s predecessor-in-interest,
Cresencio Cadwising,19 both alleged that there was an encroachment in the southern portion
also. This was done without amending the allegations of the complaint.

Confronted with this new allegation of encroachment on the southern portion, petitioner tried to
introduce his tax declaration over the same (in the name of his deceased father), but was
objected to by respondent on the ground of immateriality. 20 After such objection, however,
respondent surprisingly and inconsistently insisted that the ownership of the southern portion was
included in the complaint and was an issue in the case. The ensuing confusion over the subject of
the case is revealed in the following exchange between the parties’ lawyers:21

Atty. Awisan: Where is the land in question located?

Palali: In Tapapan, Bauko, sir.

Atty. Awisan: Where is that situated in relation to your house?

 Palali: It is near my house which is enclosed with fence.

Atty. Awisan: How about the land in question situated in the southern portion, do you
know that?

Palali: That is the land our parents gave to us as inheritance. There are terraces there.

Atty. Awisan: So, the land in question [is] located below your house and on the southern
portion?

Atty. Bayogan: As far as the southern portion is concerned, it is not included in the
complaint.

Atty. Awisan: It is included.

Atty. Bayogan: The southern portion refer[s] to Lot 3 and it is not included in the
complaint. In fact when I started asking question regarding this land, the counsel
objected.

Atty. Awisan: This land indicated as Lot 3 is the southern portion.

The trial court, apparently relying on the allegations of the complaint, ruled on the northern portion
as the subject property of the case.

Ruling of the Regional Trial Court

After due trial, the Regional Trial Court of Bontoc, Mountain Province, Branch 35, dismissed 22 the
complaint. It based its decision on respondent’s failure to prove her allegation of physical
possession of the land. Going by the results of its ocular inspection 23 of the land in question, the
trial court noted that Cadwising (respondent’s predecessor-in-interest) could not pinpoint and the
court did not see any of the improvements that Cadwising had allegedly introduced to the
land.24 Thus, the trial court held that respondent’s claim of ownership was supported solely by her
tax declarations and tax payment receipts which, by themselves, are not conclusive proof of
ownership.25

In contrast, the trial court duly verified during the ocular inspection the existence of the
improvements introduced by petitioner and his predecessors on the subject property. 26 Moreover,
the trial court observed that the witnesses for the petitioner all lived continuously since their births
within or near Sitio Camambaey in Tapapan and that they knew the land very well. They knew
petitioner and his predecessors, as well as the improvements introduced by them to the land.
Thus, the trial court found that the petitioner presented overwhelming proof of actual, open,
continuous and physical possession of the property since time immemorial. Petitioner’s
possession, coupled with his tax declarations, is strong evidence of ownership which convinced
the court of his better right to the property.27

For purposes of clarity, we cite the dispositive portion of the trial court’s Decision thus:

Wherefore, premises considered, judgment is hereby rendered in favor of the defendant Modesto
Palali and against the plaintiff Juliet C. Awisan, represented by her Attorney-in-Fact, Gregorio B.
Awisan, as follows:

a) Ordering the dismissal of the complaint and costs against the plaintiff;
 b) Adjudging the defendant Modesto Palali as the owner and lawful possessor of the
subject property; and

c) The court cannot however grant the counterclaim of defendant for lack of evidence to
prove the same.

SO ORDERED.28

Ruling of the Court of Appeals

Respondent appealed the trial court’s decision to the CA, which reversed the same. The CA
found that petitioner failed to prove actual possession of the entire 6.6698 hectare land, which the
CA believed to be the subject of the case. According to the appellate court, petitioner was only
able to prove actual occupation of the portion where his house was located and the area below
where he had planted fruit-bearing plants.29

The CA also ruled that based on the ocular inspection report of the trial

court, petitioner’s possession did not extend to the entire 6.6698 hectares. In its own words:

Likewise, the report on the ocular inspection of the land in question divulges that the alleged
possession of the land by [petitioner] Modesto Palali does not extend to the entire 6.6698
hectares of the subject land. Not even in the sketch plan of the land does it illustrate that the
possession of the [petitioner] refers to the entire subject land. Instead, the possession of
[petitioner] merely points to certain portions of the subject land as drawn and prepared by the tax
mappers.

From the foregoing testimony, no sufficient indicia could be inferred that the possession of the
[petitioner] refers to the entire portion of the land.30

The appellate court also refused to give credence to petitioner’s tax declaration. The CA held that
petitioner’s Tax Declaration No. 31793, which covers only an 848-square meter property, is
incongruous with his purported claim of ownership over the entire 6.6698-hectare land.

Proceeding from this premise, the CA gave greater weight to the documentary and testimonial
evidence of respondent. The presumption of regularity was given to the public documents from
which respondent traced her title to the subject property.

Thus, the CA awarded the entire 6.6698-hectare property to respondent and ordered the
cancellation of petitioner’s tax declaration (except for the 200-square meter residential lot thereof
which was not being claimed by respondent).31

Petitioner moved for a reconsideration of the unfavorable Decision, but his motion was denied for
lack of merit.

Hence, this petition.

Preliminary Matter

The CA Decision is based on a mistaken understanding of the subject property

It is apparent that the CA Decision proceeded from an erroneous understanding of what the
subject property actually is and what the trial court actually ruled upon. The CA was under the
mistaken impression that the subject property was the entire 6.6698 hectares of land allegedly
owned by respondent under her Tax Declaration No. 147. Because of this, the CA ruled against
petitioner on the ground that he failed to prove possession of the entire 6.6698 hectares. The CA
also disregarded petitioner’s Tax Declaration No. 31793 (despite being coupled with actual
possession) because the said tax declaration covered only an 848-square meter property and did
not cover the entire 6.6698 hectare property. This is clear from the following text lifted from the
CA Decision:

The trial court’s finding that the defendant-appellee had acquired the subject land by virtue of
acquisitive prescription cannot be countenanced. At the outset, the subject land being claimed by
the plaintiff-appellant as described in the complaint is the 6.6698 hectares land [boundaries
omitted]. The said description is with the exclusion of the portion of land where the residential
house of the defendant-appellee is erected. However, the adverse and exclusive possession
offered by the defendant-appellee, which includes his tax receipt, does not refer to the entire land
consisting of 6.6698 hectares being claimed by the plaintiff-appellant. x x x The witnesses for the
defendant-appellee testified that indeed Modesto Palali’s predecessors-in-interest have once built
a house in Camambaey, Tapapan, Bauko, Mt. Province, but whether or not the defendant-
appellee or his predecessor-in-interest have actually, exclusively, notoriously, and adversely
possessed the entire 6.6698 hectares of land could not be deduced from their testimonies. It
could be gleaned from the testimony of Consigno Saligen, that what the defendant-appellee
actually possessed and claim as their own is merely that portion where the house is erected and
that portion of land below the house where Modesto Palali planted fruit-bearing plants. x x x

Likewise, the report on ocular inspection of the land in question divulges that the alleged
possession of the land by defendant-appellee Modesto Palali does not extend to the entire
6.6698 hectares of the subject land. Not even in the sketch plan of the land does it illustrate that
the possession of the defendant-appellee refers to the entire subject land. Instead, the
possession of the defendant-appellee merely points to certain portions of the subject land as
drawn and prepared by the "tax mappers".

From the foregoing testimony, no sufficient indicia could be inferred that the possession of the
defendant-appellee refers to the entire portion of the land.32

This was perhaps not entirely the appellate court’s fault, because a reading of the issues
presented by respondent to the CA gives the wrong impression that the subject property is the
entire 6.6698 hectares:

x x x [T]he plaintiff-appellant elevated the matter on appeal assigning the following errors
committed by the trial court:

The trial court erred in failing to consider the overwhelming superior documentary and oral
evidence of the plaintiff Juliet C. Awisan showing her ownership on (sic) the land in question
consisting of 6.6698 hectares described in her complaint

II

The trial court erred in adjudicating the land in question to the defendant Modesto Palali who is a
squatter on the land whose tax declaration merely overlapped or duplicated that of the plaintiff
and which covered only a small portion of 200 square meters of residential portion [sic] and 648
square meter of rootcrop land.
x x x x33

The foregoing formulation of the issues presented by respondent before the CA erroneously
described "the land in question" as "consisting of 6.6698 hectares" and erroneously stated that
the trial court "adjudicated the land in question to [petitioner]". Said formulation is very misleading
because the case before the trial court did not involve the ownership of the entire 6.6698
hectares, but merely the northern portion thereof – the property actually occupied by petitioner
and much smaller than 6.6698 hectares. Even if we go back to the respondent’s complaint, we
would find there that respondent is claiming encroachment merely of the "northern portion" of her
6.6698-hectare property, and not of the entire 6.6698 property.34

Neither did the trial court adjudicate to petitioner the entire 6.6698-hectare land; it simply upheld
petitioner’s right to the property he is actually occupying. It only declared petitioner as the lawful
owner and possessor of the "subject property", which is the property to the north of the 6.6698-
hectare land and occupied by petitioner. This is evident from the trial court’s summary of the facts
established by the respondent and her witnesses, to wit:

During the hearing of the case, plaintiff and her witnesses established and disclosed: x x x that
only a portion of the entire 6.6 hectares in its northern portion located below and above the
residential house of the defendant Modesto Palali is now the land in question as properly shown
in the sketch of the land covered by Tax Declaration No. 147 in the name of Juliet Awisan x x x. 35

Proceeding from a wrong premise as to what is the subject property, the CA utterly failed to
appreciate the evidence as they relate to the parties’ claims. Thus, while the general rule is that
this Court is not a trier of facts, and that in a petition for review under Rule 45, only questions of
law may be raised, the Court is behooved to admit the instant case as an exception. 36

Issue

The issue in this case is who between the parties has the better right to the subject property.

Our Ruling

Having gone over the parties’ evidence before the trial court, we find adequate support for the
trial court’s ruling in favor of petitioner. The CA erred in reversing the trial court’s findings,
particularly because, as discussed above, such reversal was premised on the CA’s erroneous
understanding of the subject property.

As found by the trial court, petitioner was able to prove his and his predecessors’ actual, open,
continuous and physical possession of the subject property dating at least to the pre-war era
(aside from petitioner’s tax declaration over the subject property). Petitioner’s witnesses were
long time residents of Sitio Camambaey. They lived on the land, knew their neighbors and were
familiar with the terrain. They were witnesses to the introduction of improvements made by
petitioner and his predecessors-in-interest.

From their consistent, unwavering, and candid testimonies, we find that petitioner’s grandfather
Mocnangan occupied the land during the pre-war era. He planted camote on the property
because this was the staple food at that time. He then gave the subject property to his daughter
Tammam, while he gave a separate one to his son Pacolan Mocnangan. In the 1960s, Tammam
and her husband Palalag cultivated the land, built a cogon home, and started a family there.
Palalag introduced terraces and, together with his sons, built earth fences around the property.
Palalag’s family initially planted bananas, coffee, and oranges; they later added avocadoes,
persimmons, and pineapples. When Tammam and Palalag died, their son, petitioner herein,
buried them in the subject property and continued cultivating the land. He also constructed a new
home.

On the other hand, respondent relied merely on her tax declaration, but failed to prove actual
possession insofar as the subject property is concerned. To be sure, respondent attempted to
prove possession of the subject property. Her predecessor-in-interest, Cadwising, had allegedly
introduced improvements like a piggery, poultry, terracing, plantings, and a barbed wire fence.
However, not one of these alleged improvements was found during the ocular inspection
conducted by the trial court. The absence of all his alleged improvements on the property is
suspicious in light of his assertion that he has a caretaker living near the subject property for 20
years. Cadwising did not even bother to explain the absence of the improvements. The trial
court’s rejection of Cadwising’s assertions regarding the introduction of improvements is therefore
not baseless.1avvphi1

Thus, respondent having failed to prove possession, her claim rests solely on her tax declaration.
But tax declarations, by themselves, are not conclusive evidence of ownership of real property. In
the absence of actual, public, and adverse possession, the declaration of the land for tax
purposes does not prove ownership.37Respondent’s tax declaration, therefore, cannot serve as
basis to oust petitioner who has been in possession (by himself and his predecessors) of the
subject property since before the war.

Neither can respondent rely on the public instruments dealing with the 6.6698-hectare property
covered by her tax declaration. Such public documents merely show the successive transfers of
the property covered by said documents. They do not conclusively prove that the transferor
actually owns the property purportedly being transferred, especially as far as third parties are
concerned. For it may very well be that the transferor does not actually own the property he has
transferred, in which case he transfers no better right to his transferee. No one can give what he
does not have – nemo dat quod non habet.38 Thus, since respondent’s predecessor-in-interest
Cadwising appeared not to have any right to the subject property, he transferred no better right to
his transferees, including respondent.

All told, we hold that as between the petitioner and the respondent, it is the petitioner who has the
better claim or title to the subject property. While the respondent merely relied on her tax
declaration, petitioner was able to prove actual possession of the subject property coupled with
his tax declaration. We have ruled in several cases that possession, when coupled with a tax
declaration, is a weighty evidence of ownership.39 It certainly is more weighty and preponderant
than a tax declaration alone.

The preponderance of evidence is therefore clearly in favor of petitioner, particularly considering

that, as the actual possessor under claim of ownership, he enjoys the presumption of
ownership.40 Moreover, settled is the principle that a party seeking to recover real property must
rely on the strength of her case rather than on the weakness of the defense. 41 The burden of
proof rests on the party who asserts the affirmative of an issue. For he who relies upon the
existence of a fact should be called upon to prove that fact. Having failed to discharge her burden
to prove her affirmative allegations, we find that the trial court rightfully dismissed respondent’s
complaint.

A final note. Like the trial court, we make no ruling regarding the southern portion of the property
(or Lot 3, as referred to by the parties), because this property was not included in respondent’s
complaint. Although the Rules of Court provide that "when issues not raised by the
pleadings are tried with the express or implied consent of the parties,
they shall be treated in all respects as if they had been raised in the
pleadings,"42 such rule does not apply here. Respondent objected43 when
petitioner tried to prove his ownership of Lot 3 on the ground of immateriality, arguing that
ownership of Lot 3 was not an issue. Respondent cannot now insist otherwise.

WHEREFORE, the petition is GRANTED. The September 27, 2002 Decision as well as the April
25, 2003 Resolution of the Court of Appeals in CA-G.R. CV No. 52942 are REVERSED and SET
ASIDE. The May 24, 1996 Decision of the Regional Trial Court of Bontoc, Mountain Province,
Branch 35 is REINSTATED and AFFIRMED. Costs against respondent.

SO ORDERED.

3- 64 G.R. No. 158104. March 26, 2010

Angelita De Guzman Vs. Emilio Gonzalez III, et al., 2nd Division

The filing of the Information against petitioner Angelita de Guzman notwithstanding the lack of
certification on her cashbook examination could not in any manner be said to be premature much
less whimsical or arbitrary. Public respondents cannot be said to have gravely abused their
discretion amounting to lack or excess of jurisdiction.

This petition for certiorari1 with plea for temporary restraining order and writ of preliminary
injunction seeks to annul the Order2 dated December 23, 2002 of the Office of the Deputy
Ombudsman for Luzon in Criminal Case No. 2908-S(02) (OMB-1-01-0905-J), disapproving the
recommendation of Trial Prosecutor Bonifacio J. Bayag, Jr. (Prosecutor Bayag, Jr.) to dismiss the
case for lack of sufficient evidence to establish probable cause for the charge of Malversation of
Public Funds. Also subject of the present petition is the Order 3 dated February 26, 2003 which
denied the Motion for Reconsideration of the earlier resolution.

Factual Antecedents

Petitioner Angelita de Guzman, in her official capacity as the Municipal Treasurer of Claveria,
Cagayan, was audited of her cash and accounts covering the period from January 26, 1999 to
May 25, 2000. Per affidavit of State Auditor II Erlinda F. Langcay, the audit examination revealed
a shortage in the aggregate amount of ₱368,049.42. In a letter dated October 30, 2000, the audit
team demanded petitioner to produce the missing funds and submit her written explanation about
the occurrence of the shortage within 72 hours. The letter was received on November 13, 2000
but no compliance was made. Consequently, petitioner was indicted for malversation of public
funds before the Regional Trial Court of Sanchez, Mira, Cagayan based on the Resolution 4 of the
Ombudsman on November 27, 2001.

Alleging that she was not able to participate during the preliminary investigation as she was then
out of the country, petitioner moved5 for and was granted a reinvestigation by the court on May
29, 2002.6 As ordered, petitioner submitted her counter-affidavit, those of her witnesses and other
controverting evidence.

Report and Recommendation of Prosecutor Bayag, Jr.

After the reinvestigation, Prosecutor Bayag, Jr. submitted his Report 7 dated November 15, 2002
recommending the dismissal of the case for insufficiency of evidence to establish a probable
cause. Pertinent portions of the Report read:

The defense’s pieces of evidence negate the existence of a shortage. The audit conducted was
not yet completed or terminated for the reason that the requisite certification on the accused’s
cash book was not yet accomplished, thereby leaving the cash book open. The deposits made in
November 2000 and January 2001 which correspond to the amount of the alleged missing funds
were duly recorded and reflected on the cash book as adjusting entries.

xxxx

[Based on] analytical and judicious evaluation of the evidence adduced by and arguments raised
by both parties, we find the prima facie presumption of misappropriation of public funds having
been fully controverted and contradicted by the accused’s evidence which warrant her
exoneration and dismissal of the instant case.8

Report and Recommendation of Graft Investigation Officer II Agbada

Upon review of the Report of Prosecutor Bayag, Jr., Graft Investigation Officer II Adoracion A.
Agbada (Agbada) recommended on December 23, 2002 the disapproval of the Report and,
instead, to proceed with the prosecution of the case. Agbada anchored her findings of probable
cause on the following circumstances:

Firstly, the non-accomplishment by the auditors of the Commission on Audit (COA) of the
certification on the petitioner’s cash book leaving the same open, would not negate the existence
of shortage of the amount of ₱368,049.42. The certification is a mere formal requirement of the
audit. It does not refer to a substantive aspect of the audit. Thus, even granting that the
certification has not been accomplished by the COA auditors, it is immaterial as far as the finding
of shortage is concerned.

Secondly, the petitioner was given sufficient time by the COA to comment or respond to its
findings. She received on November 13, 2000 a demand letter from COA but failed to comply with
the said directive. Instead, on December 4, 2000 and January 12, 2001, she transmitted to the
COA a total of 10 deposit slips showing that the total amount of ₱368,049.42 was credited to the
account of the Municipality of Claveria. This was a clear case of restitution of funds. As held in
several cases, restitution of funds is a mere mitigating circumstance. It does not obliterate the
criminal liability of the accused for malversation of public funds.

Thirdly, there is prima facie presumption of misappropriation of funds by the petitioner because
she failed to have duly forthcoming the amount of ₱368,049.42 with which she is chargeable.
This presumption was not overturned by the evidence of the petitioner. It must be noted that the
deposit of the amount was made by the petitioner only on November 20 and 27, 2000 and
January 8 and 12, 2001. Said deposit was made after the petitioner had received on November
13, 2000 the demand letter issued by the audit team. In effect, the restitution was not made
immediately. Thus, the presumption that the petitioner used the money for her personal use and
benefit was not duly controverted.

Ruling of the Office of the Deputy Ombudsman for Luzon

Emilio A. Gonzalez III (Gonzalez), the Officer-in Charge of the Office of the Deputy Ombudsman
for Luzon approved on January 6, 2003 the recommendation of Agbada.

Petitioner filed a Motion for Reconsideration but Agbada recommended its denial on February 26,
2003. Gonzalez approved Agbada’s recommendation on

February 27, 2003.

Issues
On May 23, 2003, petitioner filed the instant petition for certiorari raising the following errors:

a. Public respondents GonzaleZ and Agbada committed grave abuse of discretion

amounting to lack and/or excess of jurisdiction when they recommended the continuation
of the prosecution of the case against petitioner despite findings of the reinvestigating
prosecutor that there was no sufficient evidence to establish probable cause as the audit
is not yet complete and/or terminated.

b. Public respondent Langcay gravely abused her discretion in filing the criminal
complaint a quo despite the non-completion of the cash audit.9

Petitioner argues that there was no sufficient evidence to establish probable cause since the audit
examination was not completely terminated in view of the non-accomplishment of the certification
of cashbook examination. She asserts that the accomplishment of the certificate is mandatory
and not a mere formal requirement. She claims that since the audit examination sans the
accompanying certificate was deemed not complete, the Office of the Ombudsman gravely
abused its discretion in filing the criminal information for malversation of public funds against her.

Our Ruling

The petition lacks merit.

Parenthetically, we find the matters raised by petitioner in her argumentation to be mainly

questions of fact which are not proper in a petition of this nature. Petitioner is basically
questioning the assessment and evaluation made by the Office of the Ombudsman of the pieces
of evidence submitted at the reinvestigation. The Office of the Ombudsman found that the
evidence on hand is sufficient to justify a probable cause to indict petitioner. Relying on the
Report of Prosecutor Bayag, Jr., petitioner contended otherwise. At this juncture, it is worth
emphasizing that where what is being questioned is the sufficiency of evidence, it is a question of
fact.10 A petition for certiorari under Rule 65 does not include review of the correctness of a board
or tribunal’s evaluation of the evidence but is confined to issues of jurisdiction or grave abuse of
discretion.11

Moreover, the allegations of petitioner are also defenses that must be presented as evidence in
the hearing of the criminal case. They are essentially evidentiary matters that negate
misappropriation which require an examination of the parties’ evidence. As such, they are
inappropriate for consideration in a petition for certiorari before us inasmuch as they do not affect
the jurisdiction of the public respondents. In petitions for certiorari, evidentiary matters or matters
of fact raised in the court below are not proper grounds nor may such be ruled upon in the
proceedings.12

Granting that we dispense with the technicalities and regard the submissions of petitioner as
matters tendering an issue of law, we still find no reason to reverse the finding of probable cause
by the Office of the Ombudsman.

The Constitution and Republic Act (RA) No. 6770 (the Ombudsman Act of 1989) confer on the
Office of the Ombudsman the power to investigate and prosecute on its own or on complaint by
any person, any act or omission of any public officer or employee, office or agency when such act
or omission appears to be illegal, unjust or improper. Sections 12 and 13, Article XI of the
Constitution provide:

Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on
complaints filed in any form or manner against public officials or employees of the government or
any subdivision, agency or instrumentality thereof, including government-owned or controlled
corporation and shall, in appropriate cases, notify the complainants of the action taken and
results thereof.

Sec. 13. The Office of the Ombudsman shall have the following powers, function and duties:

(1.) Investigate on its own or on complaint by any person, any act or omission of any public
official, employee, officer or agency, when such act or omission appears to be illegal, unjust,
improper or inefficient.

Section 15 of the Ombudsman Act of 1989 states:

Sec. 15. Powers, Functions and Duties- The Office of the Ombudsman shall have the following
powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of
any public officer or employee, office or agency, when such act or omission appears to be illegal,
unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the
Sandiganbayan and, in the exercise of this primary jurisdiction, it may take over, at any stage,
from any investigatory agency of the government, the investigation of such cases.1avvphi1

Petitioner ascribes grave abuse of discretion amounting to lack or excess of jurisdiction on public
respondents Gonzalez and Agbada when they reversed a prior finding of lack of probable cause
by Prosecutor Bayag, Jr. She maintains that when the Information was filed in court, the audit
examination was not yet complete as the State Auditors have not executed the corresponding
certification on the cash book examination. Otherwise stated, the information was filed
prematurely.

We cannot subscribe to petitioner’s proposition.

A finding of probable cause needs only to rest on evidence showing that more likely than not a
crime has been committed and was committed by the suspect. Probable cause need not be
based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond
reasonable doubt, and definitely not on evidence establishing absolute certainty of guilt. 13 In
disapproving the recommendation of Prosecutor Bayag, Jr. and adopting instead that of Agbada,
respondent Gonzalez as Deputy Ombudsman for Luzon was merely exercising his power and
discharging his duty as mandated by the Constitution and by laws. It is discretionary upon him
whether or not he would rely mainly on the findings of fact of Prosecutor Bayag, Jr. in making a
review of the latter’s report and recommendation. He can very well make his own findings of
fact.14 Thus, given this vast power and authority, he can conduct a preliminary investigation with
or without the report from COA. The findings in the COA report or the finality or lack of finality of
such report is irrelevant to the investigation of the Office of the Ombudsman in its determination
of probable cause, as we declared in Dimayuga v. Office of the Ombudsman. 15 Thus, the filing of
the Information against petitioner notwithstanding the lack of certification on her cashbook
examination could not in any manner be said to be premature much less whimsical or arbitrary.
Public respondents cannot be said to have gravely abused their discretion amounting to lack or
excess of jurisdiction.

To recapitulate, the discretion to determine whether a case should be filed or not lies with the
Ombudsman. Unless grave abuse of discretion amounting to lack or excess of jurisdiction is
shown, judicial review is uncalled for as a policy of non-interference by the courts in the exercise
of the Ombudsman’s constitutionally mandated powers.

WHEREFORE the instant petition for certiorari is DISMISSED for lack of merit. The Order dated
December 23, 2002 of the Office of the Deputy Ombudsman for Luzon finding probable cause
against petitioner Angelita de Guzman for Malversation of Public Funds and the Order dated
February 26, 2003 denying petitioner’s Motion for Reconsideration are hereby AFFIRMED.

SO ORDERED.

4- 88 G.R. No. 185209. June 28, 2010 - (First Division)

People of the Philippines Vs. Rene Baron y Tangarocan

Circumstantial evidence is sufficient to produce a conviction that the appellant conspired with his
co-accused in committing the crime of robbery with homicide. His claim that he acted under the
impulse of uncontrollable fear of an equal or greater injury could not be sustained because there
was no genuine, imminent, and reasonable threat, preventing his escape that compelled him to
take part in the commission of the offense charged.

Factual Antecedents

On July 19, 1995, an Information1 was filed before the Regional Trial Court of Cadiz City, Negros
Occidental, Branch 60, charging Rene Baron y Tangarocan (appellant), Rey Villatima (Villatima),
and alias "Dedong" Bargo (Bargo) with the special complex crime of robbery with homicide
committed against Juanito Berallo (Berallo). The Information contained the following accusatory
allegations:

That on or about 9 o’clock in the evening of June 28, 1995 at Hda. Sta. Ana, Brgy. Burgos, Cadiz
City, Negros Occidental, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, conspiring, confederating and helping one another with evident premeditation
and treachery and with intent to kill, did then and there, willfully, unlawfully and feloniously
assault, attack and stab to death one Juanito Berallo in order to rob, steal and take away the
following:

1) sidecar of the tricycle which costs ₱16,000.00;

2) motorcycle described as Kawasaki HDX colored black with Engine No. G7E-088086
and Chassis No. HDX-849776 which is worth ₱103,536.00;

3) wallet with cash money of ₱1,250.00;

4) wrist watch and ring worth ₱3,800.00.

and inflicting upon the person of Juanito Berallo the following injuries, to wit:

1. Gaping incised wound, shallow at the extremeties and deeper at the middle portion,
7½ cms. long, from right lateral aspect of the neck going slightly downward and to the left
of anterior neck.

2. Stabbed wound, 2 cm. long, 14 cm. deep, directed slightly upward and to the right,
located on the upper chest below wound # 1.

3. Stabbed wound, 2 cm. long, 12½ cm. deep, directed to the right, located at the left
chest, level of 3rd rib.
 4. Stabbed wound, 2 cm. long 20 cm. deep, directed slightly downward and to the left,
located at the middle of the chest, level of 5th rib.

5. Incised wound 1½ cm long, right cheek.

6. Stabbed wound, 2 cm. long, 6½ cm. deep, directed downward located at the medial
aspect of the upper back, right.

7. Stabbed wound, 2½ cm. long, 10 cm. deep, located at the upper outer quadrant of the
back, right.

8. Incised wound, 2 cm. long, located at the middle of the upper quadrant of back, right.

9. Stabbed wound, 2 cm. long, 4 cm. deep, directed downward located at the medial
aspect of upper inner quadrant of back, left.

10. Stabbed wound, 2 cm. long, 5 cm deep, directed downward, located at the middle of
upper quadrant of back, left.

11. Incised wound, 2 cm long, located 2 cm to the left of wound # 10.

12. Stabbed wound, 2 cm. long, 7½ cm. deep, directed downward located at the middle
of lower back, left.

13. Incised wound, 6½ cm. long, distal third left forearm.

14. Incised wound, 3 cm. long palmar surface left hand.

15. Incised wound, 5 cm. long palmar surface left hand, 2 cm. below wound # 13.

CAUSE OF DEATH: Severe hemorrhage due to Multiple Stabbed wounds,

which directly caused the death of the victim Juanito Berallo, to the damage and prejudice of the
heirs of the victim in the amount, to wit:

₱ 50, 000.00 - as indemnity for the death of the victim.

₱ 150, 000.00 - as indemnity for the loss of earning capacity, or such amount to be fixed
by the court.

ACT CONTRARY TO LAW.

Only the appellant was arrested. Villatima and Bargo remain at-large to date. Appellant entered a
plea of "not guilty" when arraigned. After the termination of the pre-trial conference, trial ensued.

The Prosecution’s Version

Culled from the evidence presented by the prosecution, the case against the appellant is as
follows:

On June 28, 1995, at around 8:30 in the evening, Ernesto Joquino, Jr. (Joquino), a tricycle driver,
was having a conversation with Canni Ballesteros (Ballesteros) in front of Julie’s Bakeshop at
Magsaysay St., Cadiz City. Berallo arrived and parked his tricycle in front of the bakeshop. The
appellant approached Berallo and asked if he could take him and his companions to Hacienda
Caridad for ₱30.00. When Berallo agreed, the appellant called Villatima, then wearing a fatigue
jacket, and Bargo. They then rode Berallo’s tricycle.

Pacita Caratao, a dressmaker, was also in Julie’s Bakeshop at around the same time Joquino
and Ballesteros were in front of the premises. She noticed Berallo sitting on a parked tricycle
while the appellant was seated behind him. After buying bread, she approached Berallo and
asked if he was going home to Lag-asan, hoping that she could ride with him. However, Berallo
replied that he still had to ferry passengers. She thus decided to cross the street and take a
passenger jeep. While inside the jeep, she saw two more persons boarding Berallo’s tricycle.

On June 29, 1995, SPO2 Jude dela Rama received a report of a robbery with homicide incident.
Together with other policemen, he proceeded to Hacienda Sta. Ana, Cadiz City, where he saw
Berallo lying dead in a sugarcane plantation about 20 meters away from the highway. They also
noticed several traces of footprints near Berallo’s body and a tricycle sidecar in a canal beside the
Martesan Bridge. Beside the sidecar was a fatigue jacket.

Dr. Merle Jane B. Regalado conducted the post-mortem examination on the cadaver of Berallo.
She found that the victim sustained 15 stab wounds and died of severe hemorrhage due to
multiple stab wounds. Five of them were considered as fatal and caused the immediate death of
Berallo. The wounds also indicated that they could have been inflicted by more than one person.

The follow-up investigation of the police team identified the appellant as one of the suspects.
After having been apprised of his rights, appellant admitted that he and his co-accused took
Berallo’s tricycle and, after detaching the motorcycle from the sidecar, brought the motorcycle
to Barangay Oringao, Kabankalan, Negros Occidental and left the same at the house of
Villatima’s aunt, Natividad Camparicio (Natividad).

Natividad denied knowledge of the incident but admitted that her nephew Villatima, together with
the appellant, and another companion, were the ones who brought the motorcycle to her house in
Kabankalan.

Nemia Berallo (Nemia) identified the motorcycle recovered from the house of Natividad as the
one stolen from her deceased husband. She also testified on the sum of money and the value of
the personal property stolen from her husband. She allegedly spent the sum of ₱2,400.00 for the
purchase of the burial lot.

The Version of the Defense

Appellant denied any participation in the crime. He claimed that on June 28, 1995, at around 7
o’clock in the evening, he bought rice and other necessities for his family and proceeded to the
public transport terminal to get a ride home. A tricycle with two passengers passed by and its
driver inquired if he wanted a ride up to Segundo Diez. He boarded the tricycle and told the driver
that he would alight at Canibugan, but the driver requested him to accompany them up to
Segundo Diez. He agreed out of concern for the safety of the driver. Upon reaching Bangga
Doldol, however, the passengers announced a hold-up. Armed with guns, the passengers told
him and the driver not to make any wrong move, or they would be killed. Thereafter, the
passengers tied the hands of the driver and dragged him towards the sugarcane fields. He no
longer knew what happened to the driver since he remained in the tricycle. However, he
suspected that the driver was killed by the two passengers.

Thereafter, the passengers went to Taytay Martesan and detached the sidecar of the tricycle.
They then took him to a house at Barangay Oringao and did not allow him to leave the premises.
The following morning, they returned to Cadiz City. The two passengers even accompanied him
to his house and threatened him and his wife at gunpoint not to report the incident to the police
authorities.

On June 30, 1995, at around 10:00 o’clock in the evening, policemen came to his house and
asked where the motorcycle was taken. He told them of the location of the vehicle and insisted
that he had nothing to do with the incident. He stressed that the two passengers whose names he
did not know, were responsible for the crime committed.

Ruling of the Regional Trial Court

On February 12, 2002, the trial court rendered a Decision2 finding the appellant guilty beyond
reasonable doubt of the complex crime of robbery with homicide. It disposed as follows:

WHEREFORE, in view of the foregoing, this Court finds accused RENE BARON Y
TANGAROCAN (detained) GUILTY beyond reasonable doubt of the complex crime of Robbery
with Homicide as charged in the information and there being the attendance of the aggravating
circumstance of treachery hereby sentences him to suffer the penalty of DEATH.

The accused is further ordered to pay the heirs of the victim the amount of ₱50,000.00 by way of
indemnity for the death of the victim, Juanito Berallo and the amount of ₱5,050.00 for the cash
and the value of the wrist watch and ring of the victim plus the amount of ₱2,400.00 for the
purchase of the burial lot by way of reparation and in addition the amount of ₱100,000.00 as
moral damages and ₱50,000.00 as exemplary damages. The sidecar and the motorcycle are
hereby ordered returned to the heirs of the victim.

The accused is further ordered to be immediately committed to the National Penitentiary for
service of his sentence.

The Clerk of Court of this Court is hereby ordered to immediately forward the records of this case
together with the Decision of this Court to the Supreme Court for automatic review.

The case against Rey Villatima and alias "Dedong" Bargo [both of whom are] at-large is hereby
ordered archived and [to] be immediately revived upon their arrest.

Cost against accused Rene Baron.

SO ORDERED.3

Ruling of the Court of Appeals

Before the appellate court, appellant alleged that the trial court erred in finding him guilty as
charged and in not appreciating in his favor the exempting circumstance of irresistible force
and/or uncontrollable fear of an equal or greater injury. However, the same was disregarded by
the CA holding that all the requisites for said circumstances were lacking. The appellate court
found that the alleged threat, if at all, was not real or imminent. Appellant had every opportunity to
escape but did not take advantage of the same. Instead, he waited inside the tricycle as if he was
one of the malefactors. The dispositive portion of the CA Decision4 reads as follows:

WHEREFORE, the APPEAL is DISMISSED. The Decision dated February 12, 2002, of the
Regional Trial Court (RTC), Cadiz City, Negros Occidental, Branch 60, in Criminal Case No.
1675-C finding accused-appellant Rene Baron y Tangarocan guilty of robbery with homicide is
AFFIRMED with MODIFICATION reducing the death penalty to reclusion perpetua without parole
conformably with R.A. 9346 and reducing the award of moral damages from ₱100,000.00 to
₱50,000.00 and exemplary damages from ₱50,000.00 to ₱25,000.00.

Costs against accused-appellant.

SO ORDERED.

Issues

Still aggrieved, the appellant comes to us for a final review of his case. In his brief, he assigns the
following correlated errors:

THE TRIAL COURT GRAVELY ERRED IN FAILING TO APPRECIATE THE EXEMPTING

CIRCUMSTANCES OF IRRESISTABLE FORCE AND/OR UNCONTROLLABLE FEAR OF AN
EQUAL OR GREATER INJURY.

II

THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY

BEYOND REASONABLE DOUBT OF THE CRIME CHARGED.5

Our Ruling

The appeal is unmeritorious.

Robbery with homicide exists when a homicide is committed either by reason, or on occasion, of
the robbery. To sustain a conviction for robbery with homicide, the prosecution must prove the
following elements: (1) the taking of personal property belonging to another; (2) with intent to
gain; (3) with the use of violence or intimidation against a person; and (4) on the occasion or by
reason of the robbery, the crime of homicide, as used in the generic sense, was committed. A
conviction needs certainty that the robbery is the central purpose and objective of the malefactor
and the killing is merely incidental to the robbery. The intent to rob must precede the taking of
human life but the killing may occur before, during or after the robbery.6

In this case, the prosecution successfully adduced proof beyond reasonable doubt that the real
intention of the appellant and his companions was to rob the victim. The appellant and his
companions boarded the tricycle of the victim pretending to be passengers. Midway to their
destination, one of the accused declared a hold-up and at gun point, tied the hands of the victim
and brought him towards the sugarcane field where he was stabbed to death. The victim was
divested of his wallet containing ₱1,250.00, a wrist watch and ring. Emerging from the sugarcane
plantation, they boarded the tricycle of the victim, detached the sidecar and dumped the same in
a canal beside the Martesan Bridge with the fatigue jacket of one of the accused. They
proceeded to Barangay Oringao, Kabankalan and hid the motorcycle in the house of Villatima’s
aunt, Natividad.

Concededly, there is no direct evidence proving that the appellant conspired and participated in
committing the crime. However, his complicity may be proved by circumstantial evidence, which
consists of proof of collateral facts and circumstances from which the existence of the main fact
may be inferred according to reason and common experience.7 Circumstantial evidence is
sufficient to sustain conviction if: (a) there is more than one circumstance; (b) the facts from which
the inferences are derived have been established; (c) the combination of all circumstances is
such as to warrant a finding of guilt beyond reasonable doubt.8 A judgment of conviction based
on circumstantial evidence can be sustained when the circumstances proved form an unbroken
chain that results to a fair and reasonable conclusion pointing to the accused, to the exclusion of
all others, as the perpetrator.9

In this case, the circumstantial evidence presented by the prosecution leads to the inescapable
conclusion that the appellant and his co-accused conspired to commit robbery with homicide.
When considered together, the circumstances point to them and no one else as the culprits. We
thus agree with the observation of the trial court that:

A careful examination of the records of this case reveals, [that] no eye witness was presented by
the prosecution pointing to the three accused to be actually responsible in the perpetration of the
crime charged except the extra-judicial narration of the accused Rene Baron but who also tried to
exculpate himself from the commission of the crime by denying his [complicity] in the crime.

Despite this finding however, this Court found from the records of this case, numerous and
cumulative material circumstantial evidence from which one can derive a logical and necessary
inference clearly showing the three accused to be responsible for the crime charged and these
are the following; to wit:

1. The fact that at about 8:30 in the evening of June 28, 1995 witness Ernesto Joquino,
Jr. while in front of Julie’s Bakeshop saw the victim Juanito Berallo [park] the latter’s
tricycle in front of the bakeshop when accused Rene Baron hired the tricycle of the victim
in going to Hda. Caridad and whose companions were Rey Villatima and "Dedong" Bargo
(TSN-Tan, January 18, 1996, pp. 6-10). Thus, the excerpts of the Transcript of the
Stenographic Notes has this to reveal in vivid fashion, to wit:

"Q. Mr. Joquino, on June 28, 1995 at about 8:30 in the evening where were you?

A. I was in front of Julie’s Bakeshop.

Q. Where is this Julie’s Bakeshop located x x x?

A. At Magsaysay Street, Cadiz City.

Q. What were you doing at Julie’s Bakeshop at that particular date and time?

A. I was x x x having a conversation with Canni Ballesteros.

Q. While you were x x x in front of Julie’s Bakeshop, was there anything that
transpired?

A. Yes, ma’am.

Q. Can you tell us what was that?

A. I saw Juanito Berallo park his tricycle in front of Julie’s Bakeshop.

Q. When you saw Juanito Berallo park his tricycle x x x in front of Julie’s
Bakeshop, what transpired after that?
 A. Rene Baron approached Juanito Berallo and asked him if he can conduct
Rene Baron to Hda. Caridad.

Q. By the way, do you know Rene Baron before June 28, 1995?

A. Yes, ma’am, I know him because we are all drivers of the tricycle.

Q. What about this Juanito Berallo, do you know him before June 28, 1995?

A. Yes ma’am.

Q. Why do you know him?

A. Because he ran as councilor in Cadiz City.

Q. So going back to the incident where you said Rene Baron approached Juanito
Berallo and asked Berallo if the latter would conduct him to Hda. Caridad, what
was the answer of Juanito Berallo to Rene Baron?

A. Juanito Berallo asked Rene Baron how much he will pay [to] him and then
Rene Baron said that he will pay Juanito Berallo the amount of ₱30.00 and then
again Juanito Berallo asked Rene Baron how many x x x will ride on the tricycle
and Rene Baron said that there were three of them.

Q. By the way, how far were you from where Juanito Berallo and Rene Baron
were talking?

A. From here up there. (Witness pointed to a distance of about four (4) meters.)

Q. After Juanito Berallo agreed with Rene Baron and his companions to conduct
them to Hda. Caridad, what did Rene Baron do if there was any?

A. Rene Baron called his companions who were just across the street.

Q. Were you able to recognize x x x the two companions whom Rene Baron
called from across the street?

A. Yes, sir.

Q. And who were they if you know?

A. Rey Villatima and Dedong Bargo."

(TSN-Tan, January 18, 1996, pp. 6-10)

2. The fact the Rey Villatima was wearing a fatigue jacket when the latter boarded the
tricycle of the victim and proceeded to Hda. Caridad (ibid, p. 12) and it was the same
fatigue jacket recovered by the police from the sidecar of the tricycle at the scene of the
crime and this was the last time that the victim was seen alive;

3. The fact that witness Pacita Caratao corroborated the testimony of Ernesto Joquino,
Jr. and Berallo sitting on the latter’s tricycle parked near Julie’s Bakeshop and saw Rene
Baron sitting behind Juanito Berallo and the witness even asked the former if he will be
going to Lag-asan to which the victim Juanito Berallo refused because he has some
passengers to be conducted (TSN-Tan, March 13, 1997, pp. 3-4) and has referred to the
accused Rene Baron and his two companions (TSN-Tan, March 13, 1997, pp. 4-5) as his
passengers;

4. The fact that the during the police investigation witness SPO2 Jude de la Rama found
the dead body of the victim inside the sugarcane plantation in Hda. Sta. Ana and found
many traces of footsteps inside the sugarcane fields (TSN-Tan, July 8, 1997, p. 4)
indicating that more than one person conspired and co-operated with each other in killing
the victim;

5. The fact that the witness De la Rama found the sidecar of the tricycle beside the
Martisan Bridge which is just beside the scene of the incident and also beside the sidecar
of the tricycle they found a fatigue jacket and has recovered inside its pocket a used soap
(ibid, p. 5);

6. The fact that when the police officers invited Rene Baron for interview, Rene Baron
pointed to his co-accused, Rey Villatima as the one who was wearing the fatigue jacket
the police officers recovered as well as had named his (Baron) other companion as alias
"Dedong" Bargo (ibid, p. 7);

7. The fact that after the three accused had detached the motorcycle from its sidecar,
Rey Villatima was pointed to by the accused Rene Baron as the one who drove it while
he (Rene Baron) and "Dedong" Bargo rode behind and all of them immediately
proceeded to the house of the aunt of Rey Villatima in Brgy. Oringao, Kabankalan,
Negros Occidental (ibid);

8. The fact that it was accused Rene Baron who had guided the police investigators to
Kabankalan City, Negros Occidental, a city in the southern portion of Negros Occidental
which is about 150 kilometers away from Cadiz City in the north, the scene of the crime;
and with the cooperation of the Chief of Police of the former place proceeded to the
house of a certain Natividad Camparicio, the aunt of accused Rey Villatima (ibid, pp. 7-8);

9. The fact that Natividad Camparicio affirmed that the stolen motorcycle was brought to
her house at around 1:15 in the morning of July 1, 1995 by her nephew, Rey Villatima
together with the latter’s companions and pinpointed to accused Rene Baron as one of
them (ibid, p. 9);

10. The fact that prosecution witness, Police Insp. Eduardo Berena also confirmed they
were able to recover the stolen motorcycle which was kept in the ground floor of the
house of Mrs. Camparicio (TSN-Guanzon, October 2, 1997, pp. 8-15);

11. The fact that the stolen motorcycle was positively identified by witness Nemia Berallo
as the same motorcycle driven, owned and registered in the name of the victim, Juanito
Berallo (TSN-Guanzon, October 2, 1997, pp. 9-10);

12. The fact that accused Rene Baron admitted during his testimony that he rode in the
tricycle driven by the victim together with the two passengers in going to Segundo Diez
but reached only the area of Bangga "Doldol" where the actual robbery and killing took
place (TSN-Tan, May 11, 1999, pp. 9-12);

13. The fact that when the two hold-up men brought the driver inside the sugarcane field,
accused Rene Baron who was left on the road outside the sugarcane field (ibid, p. 11) did
 nothing and instead of escaping and seeking help, accused Rene Baron leisurely stayed
in the tricycle as if everything [was] normal and nothing [happened], thus indicating that
he (Baron) [was] in conspiracy to rob and kill the victim since as the facts are depicted x x
x Rene Baron would clearly appear that he (Baron) acted as a "look out" while the two
companions were killing the victim and to make matters worse, he (Baron) even went
along with the two other accused up to Oringao, Kabankalan City where they hid the
stolen motorcycle (ibid, pp. 12-13);

14. The fact that the accused Baron was left unharmed by the killers of the victim in spite
of the fact that he (Baron) is a potential witness to the serious crime of Robbery with
Homicide; and when they were in Oringao, ate breakfast with them then rode a
passenger jeep with many passengers; alighted in Kabankalan proper from Barangay
Oringao; stood and waited in a public place at the Ceres Bus Terminal; rode a public
transportation bus to Bacolod City for three (3) hours then alighted in Libertad Street in
Bacolod City; and again rode a passenger jeepney going to a place known as "Shopping"
to take another passenger bus in going back to Cadiz City (ibid, pp. 21-30).1avvph!1

From [this] series of proven circumstantial evidence, the inescapable and natural conclusion is
the three accused were in conspiracy with one another to kill the victim and cart away the
motorcycle as the combination of these numerous circumstantial evidence [is] enough to produce
the strong moral certainty from an unbiased and [unprejudiced] mind to safely conclude that no
other persons but the three accused conspired to perpetrate the crime as clearly the series of
events indubitably [shows] that there was unity of purpose, concurrence of will, and that they all
acted in concert towards the same end, the accused being together with a group when they rode
the tricycle of the victim; all of them were together at the scene of the crime, they all rode in the
same stolen motorcycle going to Barangay Oringao, Kabankalan City; all of them were together in
hiding the stolen motorcycle in the house of Natividad Camparicio; and they were together as a
group going to Cadiz City from Kabankalan City passing [through] and stopping [at] various cities
and municipalities.10

The concerted manner in which the appellant and his companions perpetrated the crime showed
beyond reasonable doubt the presence of conspiracy. When a homicide takes place by reason of
or on the occasion of the robbery, all those who took part shall be guilty of the special complex
crime of robbery with homicide whether they actually participated in the killing, unless there is
proof that there was an endeavor to prevent the killing. 11 There was no evidence adduced in this
case that the appellant attempted to prevent the killing. Thus, regardless of the acts individually
performed by the appellant and his co-accused, and applying the basic principle in conspiracy
that the "act of one is the act of all," the appellant is guilty as a co-conspirator. As a result, the
criminal liabilities of the appellant and his co-accused are one and the same.12

The appellant’s attempt to evade criminal liability by insisting that he acted under the impulse of
an uncontrollable fear of an equal or greater injury fails to impress. To avail of this exempting
circumstance, the evidence must establish: (1) the existence of an uncontrollable fear; (2) that the
fear must be real and imminent; and (3) the fear of an injury is greater than or at least equal to
that committed.13 A threat of future injury is insufficient. The compulsion must be of such a
character as to leave no opportunity for the accused to escape.14

We find nothing in the records to substantiate appellant’s insistence that he was under duress
from his co-accused in participating in the crime. In fact, the evidence is to the contrary. Villatima
and Bargo dragged the victim towards the sugarcane field and left the appellant inside the tricycle
that was parked by the roadside. While all alone, he had every opportunity to escape since he
was no longer subjected to a real, imminent or reasonable fear. Surprisingly, he opted to wait for
his co-accused to return and even rode with them to Kabankalan, Negros Occidental to hide the
victim’s motorcycle in the house of Villatima’s aunt.
The appellant had other opportunities to escape since he traveled with his co-accused for more
than 10 hours and passed several transportation terminals. However, he never tried to escape or
at least request for assistance from the people around him.

Robbery with Homicide is a single indivisible crime punishable with reclusion perpetua to death
under paragraph 1, Article 294 of the Revised Penal Code. We find that the trial court correctly
appreciated the aggravating circumstance of treachery, which exists when the offender commits
any of the crimes against persons, employing means, methods or forms in the execution thereof
that tend directly and specifically to insure its execution without risk to himself arising from the
defense that the offended party might make.15 The evidence points that one of the co-
conspirators tied the hands of the victim before dragging him to the sugarcane field. 16 Thus, he
was unable to defend and protect himself against his malefactors who were superior in number
and armed with knives and guns.

As thoroughly discussed in People v. Escote, Jr.,17 treachery is not a qualifying circumstance but
"a generic aggravating circumstance to robbery with homicide although said crime is classified as
a crime against property and a single and indivisible crime".18 Corollarily, "Article 62, paragraph 1
of the Revised Penal Code provides that in diminishing or increasing the penalty for a crime,
aggravating circumstances shall be taken into account. However, aggravating circumstances
which in themselves constitute a crime especially punishable by law or which are included by the
law in defining a crime and prescribing a penalty therefor shall not be taken into account for the
purpose of increasing the penalty".19 In the case at bar, "treachery is not an element of robbery
with homicide".20Neither is it "inherent in the crime of robbery with homicide".21 As such, treachery
may be properly considered in increasing the penalty for crime.

In this case, the presence of treachery as a generic aggravating circumstance would have
merited the imposition of the death penalty. However, in view of the subsequent passage of
Republic Act (RA) No. 9346, entitled "An Act Prohibiting the Imposition of the Death Penalty in
the Philippines," we are mandated to impose on the appellant the penalty of reclusion perpetua
without eligibility for parole.22

In line with current jurisprudence, if the death penalty would have been imposed if not for the
proscription in RA 9346, the civil indemnity for the victim shall be ₱75,000.00. 23 As compensatory
damages, the award of ₱2,400.00 for the burial lot of the victim must be deleted since this
expense was not supported by receipts.24 However, the heirs are entitled to an award of
temperate damages in the sum of ₱25,000.00.25 The existence of one aggravating circumstance
merits the award of exemplary damages under Article 2230 of the New Civil Code. Thus, the
award of exemplary damages is proper. However, it must be increased from ₱25,000.00 to
₱30,000.00.26 Moral damages must also be increased from ₱25,000.00 to
₱75,000.00.27 Moreover, the appellant is ordered to return the stolen items that were not
recovered. Should this no longer be possible, there must be restitution in the total amount of
₱5,050.00 representing the cash contained in the victim’s wallet, as well as the value of the wrist
watch, the ring, the motorcycle and sidecar taken by the appellant and his co-accused.

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR HC No. 00638 finding
appellant guilty beyond reasonable doubt of Robbery with Homicide and sentencing him to suffer
the penalty of reclusion perpetua is AFFIRMED with MODIFICATIONS. The appellant is hereby
ordered to pay the heirs of the victim ₱75,000.00 as civil indemnity; ₱75,000.00 as moral
damages, and ₱30,000.00 as exemplary damages. Actual damages is DELETED, and in lieu
thereof, appellant is ordered to pay temperate damages in the amount of ₱25,000.00. The
appellant is also ordered to return the cash of ₱5,050.00 taken from the victim’s wallet and the
other pieces of personal property also taken but not recovered, more particularly his wrist watch,
ring, his Kawasaki HDX motorcycle and its sidecar. Should restitution be no longer possible, the
appellant must pay the equivalent value of the unreturned items.
SO ORDERED.

5- 112 G.R. No. 164538. August 9, 2010 - (First Division)

Metropolitan Bank and Trust Company Vs. Rogelio Reynaldo and Jose C. Adrandea

"It is a hornbook doctrine in our criminal law that the criminal liability for estafa is not affected by a
compromise, for it is a public offense which must be prosecuted and punished by the government
on its own motion, even though complete reparation [has] been made of the damage suffered by
the private offended party. Since a criminal offense like estafa is committed against the State, the
private offended party may not waive or extinguish the criminal liability that the law imposes for
the commission of the crime."1

This Petition for Review on Certiorari under Rule 45 of the Rules of Court seeks the reversal of
the Court of Appeals’ (CA’s) Decision2 dated October 21, 2002 in CA-G.R. SP No. 58548 and its
further Resolution3 dated July 12, 2004 denying petitioner’s Motion for Reconsideration. 4

Factual Antecedents

On January 31, 1997, petitioner Metropolitan Bank and Trust Company charged respondents
before the Office of the City Prosecutor of Manila with the crime of estafa under Article 315,
paragraph 1(b) of the Revised Penal Code. In the affidavit5 of petitioner’s audit officer, Antonio
Ivan S. Aguirre, it was alleged that the special audit conducted on the cash and lending
operations of its Port Area branch uncovered anomalous/fraudulent transactions perpetrated by
respondents in connivance with client Universal Converter Philippines, Inc. (Universal); that
respondents were the only voting members of the branch’s credit committee authorized to extend
credit accommodation to clients up to ₱200,000.00; that through the so-called Bills Purchase
Transaction, Universal, which has a paid-up capital of only ₱125,000.00 and actual maintaining
balance of ₱5,000.00, was able to make withdrawals totaling ₱81,652,000.006 against uncleared
regional checks deposited in its account at petitioner’s Port Area branch; that, consequently,
Universal was able to utilize petitioner’s funds even before the seven-day clearing period for
regional checks expired; that Universal’s withdrawals against uncleared regional check deposits
were without prior approval of petitioner’s head office; that the uncleared checks were later
dishonored by the drawee bank for the reason "Account Closed"; and, that respondents acted
with fraud, deceit, and abuse of confidence.

In their defense, respondents denied responsibility in the anomalous transactions with Universal
and claimed that they only intended to help the Port Area branch solicit and increase its deposit
accounts and daily transactions.

Meanwhile, on February 26, 1997, petitioner and Universal entered into a Debt Settlement
Agreement7 whereby the latter acknowledged its indebtedness to the former in the total amount
of ₱50,990,976.278 as of February 4, 1997 and undertook to pay the same in bi-monthly
amortizations in the sum of ₱300,000.00 starting January 15, 1997, covered by postdated
checks, "plus balloon payment of the remaining principal balance and interest and other charges,
if any, on December 31, 2001."9

Findings of the Prosecutor

Following the requisite preliminary investigation, Assistant City Prosecutor Winnie M. Edad
(Prosecutor Edad) in her Resolution10 dated July 10, 1997 found petitioner’s evidence insufficient
to hold respondents liable for estafa. According to Prosecutor Edad:
The execution of the Debt Settlement Agreement puts complainant bank in estoppel to argue that
the liability is criminal. Since the agreement was made even before the filing of this case, the
relations between the parties [have] change[d], novation has set in and prevented the incipience
of any criminal liability on the part of respondents.11

Thus, Prosecutor Edad recommended the dismissal of the case:

WHEREFORE, for insufficiency of evidence, it is respectfully recommended that the case be

dismissed.12

On December 9, 1997, petitioner appealed the Resolution of Prosecutor Edad to the Department
of Justice (DOJ) by means of a Petition for Review.13

Ruling of the Department of Justice

On June 22, 1998, the DOJ dismissed the petition ratiocinating that:

It is evident that your client based on the same transaction chose to file estafa only against its
employees and treat with kid gloves its big time client Universal who was the one who benefited
from this transaction and instead, agreed that it should be paid on installment basis.

To allow your client to make the choice is to make an unwarranted classification under the law
which will result in grave injustice against herein respondents. Thus, if your client agreed that no
estafa was committed in this transaction with Universal who was the principal player and
beneficiary of this transaction[,] more so with herein respondents whose liabilities are based only
on conspiracy with Universal.

Equivocally, there is no estafa in the instant case as it was not clearly shown how respondents
misappropriated the ₱53,873,500.00 which Universal owed your client after its checks deposited
with Metrobank were dishonored. Moreover, fraud is not present considering that the Executive
Committee and the Credit Committee of Metrobank were duly notified of these transactions which
they approved. Further, no damage was caused to your client as it agreed [to] the settlement
[with] Universal.14

A Motion for Reconsideration15 was filed by petitioner, but the same was denied on March 1,
2000 by then Acting Secretary of Justice Artemio G. Tuquero.16

Aggrieved, petitioner went to the CA by filing a Petition for Certiorari & Mandamus.17

Ruling of the Court of Appeals

By Decision18 of October 21, 2002, the CA affirmed the twin resolutions of the Secretary of
Justice. Citing jurisprudence19 wherein we ruled that while novation does not extinguish criminal
liability, it may prevent the rise of such liability as long as it occurs prior to the filing of the criminal
information in court.20 Hence, according to the CA, "[j]ust as Universal cannot be held responsible
under the bills purchase transactions on account of novation, private respondents, who acted in
complicity with the former, cannot be made liable [for] the same transactions."21 The CA added
that "[s]ince the dismissal of the complaint is founded on legal ground, public respondents may
not be compelled by mandamus to file an information in court."22

Incidentally, the CA totally ignored the Comment23 of the Office of the Solicitor General (OSG)
where the latter, despite being the statutory counsel of public respondent DOJ, agreed with
petitioner that the DOJ erred in dismissing the complaint. It alleged that where novation does not
extinguish criminal liability for estafa neither does restitution negate the offense already
committed.24

Additionally, the OSG, in sharing the views of petitioner contended that failure to implead other
responsible individuals in the complaint does not warrant its dismissal, suggesting that the proper
remedy is to cause their inclusion in the information.25 This notwithstanding, however, the CA
disposed of the petition as follows:

WHEREFORE, the petition is DENIED due course and, accordingly, DISMISSED. Consequently,
the resolutions dated June 22, 1998 and March 1, 2000 of the Secretary of Justice are
AFFIRMED.

SO ORDERED.26

Hence, this instant petition before the Court.

On November 8, 2004, we required27 respondents to file Comment, not a motion to dismiss, on

the petition within 10 days from notice. The OSG filed a Manifestation and Motion in Lieu of
Comment28 while respondent Jose C. Adraneda (Adraneda) submitted his Comment 29 on the
petition. The Secretary of Justice failed to file the required comment on the OSG’s Manifestation
and Motion in Lieu of Comment and respondent Rogelio Reynado (Reynado) did not submit any.
For which reason, we issued a show cause order30 on July 19, 2006. Their persistent non-
compliance with our directives constrained us to resolve that they had waived the filing of
comment and to impose a fine of ₱1,000.00 on Reynado. Upon submission of the required
memorandum by petitioner and Adraneda, the instant petition was submitted for resolution.

Issues

Petitioner presented the following main arguments for our consideration:

1. Novation and undertaking to pay the amount embezzled do not extinguish criminal
liability.

2. It is the duty of the public prosecutor to implead all persons who appear criminally
liable for the offense charged.

Petitioner persistently insists that the execution of the Debt Settlement Agreement with Universal
did not absolve private respondents from criminal liability for estafa. Petitioner submits that the
settlement affects only the civil obligation of Universal but did not extinguish the criminal liability of
the respondents. Petitioner thus faults the CA in sustaining the DOJ which in turn affirmed the
finding of Prosecutor Edad for committing apparent error in the appreciation and the application of
the law on novation. By petitioner’s claim, citing Metropolitan Bank and Trust Co. v. Tonda,31 the
"negotiations pertain [to] and affect only the civil aspect of the case but [do] not preclude
prosecution for the offense already committed."32

In his Comment, Adraneda denies being a privy to the anomalous transactions and passes on the
sole responsibility to his co-respondent Reynado as the latter was able to conceal the pertinent
documents being the head of petitioner’s Port Area branch. Nonetheless, he contends that
because of the Debt Settlement Agreement, they cannot be held liable for estafa.

The OSG, for its part, instead of contesting the arguments of petitioner, even prayed before the
CA to give due course to the petition contending that DOJ indeed erred in dismissing the
complaint for estafa.
Given the facts of the case, the basic issue presented before this Court is whether the execution
of the Debt Settlement Agreement precluded petitioner from holding respondents liable to stand
trial for estafa under Art. 315 (1)(b) of the Revised Penal Code. 33

Our Ruling

We find the petition highly meritorious.

Novation not a mode of extinguishing

criminal liability for estafa; Criminal liability for estafa not affected by compromise or novation of
contract.

Initially, it is best to emphasize that "novation is not one of the grounds prescribed by the Revised
Penal Code for the extinguishment of criminal liability." 34

In a catena of cases, it was ruled that criminal liability for estafa is not affected by a compromise
or novation of contract. In Firaza v. People35 and Recuerdo v. People,36 this Court ruled that in a
crime of estafa, reimbursement or belated payment to the offended party of the money swindled
by the accused does not extinguish the criminal liability of the latter. We also held in People v.
Moreno37 and in People v. Ladera38 that "criminal liability for estafa is not affected by compromise
or novation of contract, for it is a public offense which must be prosecuted and punished by the
Government on its own motion even though complete reparation should have been made of the
damage suffered by the offended party." Similarly in the case of Metropolitan Bank and Trust
Company v. Tonda39 cited by petitioner, we held that in a crime of estafa, reimbursement of or
compromise as to the amount misappropriated, after the commission of the crime, affects only the
civil liability of the offender, and not his criminal liability.

Thus, the doctrine that evolved from the aforecited cases is that a compromise or settlement
entered into after the commission of the crime does not extinguish accused’s liability for estafa.
Neither will the same bar the prosecution of said crime. Accordingly, in such a situation, as in this
case, the complaint for estafa against respondents should not be dismissed just because
petitioner entered into a Debt Settlement Agreement with Universal. Even the OSG arrived at the
same conclusion:

Contrary to the conclusion of public respondent, the Debt Settlement Agreement entered into
between petitioner and Universal Converter Philippines extinguishes merely the civil aspect of the
latter’s liability as a corporate entity but not the criminal liability of the persons who actually
committed the crime of estafa against petitioner Metrobank. x x x 40

Unfortunately for petitioner, the above observation of the OSG was wittingly glossed over in the
body of the assailed Decision of the CA.

Execution of the Debt Settlement Agreement did not prevent the incipience of criminal liability.

Even if the instant case is viewed from the standpoint of the law on contracts, the disposition
absolving the respondents from criminal liability because of novation is still erroneous.

Under Article 1311 of the Civil Code, "contracts take effect only between the parties, their assigns
and heirs, except in case where the rights and obligations arising from the contract are not
transmissible by their nature, or by stipulation or by provision of law." The civil law principle of
relativity of contracts provides that "contracts can only bind the parties who entered into it, and it
cannot favor or prejudice a third person, even if he is aware of such contract and has acted with
knowledge thereof."41

In the case at bar, it is beyond cavil that respondents are not parties to the agreement. The
intention of the parties thereto not to include them is evident either in the onerous or in the
beneficent provisions of said agreement. They are not assigns or heirs of either of the parties. Not
being parties to the agreement, respondents cannot take refuge therefrom to bar their anticipated
trial for the crime they committed. It may do well for respondents to remember that the criminal
action commenced by petitioner had its genesis from the alleged fraud, unfaithfulness, and abuse
of confidence perpetrated by them in relation to their positions as responsible bank officers. It did
not arise from a contractual dispute or matters strictly between petitioner and Universal. This
being so, respondents cannot rely on subject settlement agreement to preclude prosecution of
the offense already committed to the end of extinguishing their criminal liability or prevent the
incipience of any liability that may arise from the criminal offense. This only demonstrates that the
execution of the agreement between petitioner and Universal has no bearing on the innocence or
guilt of the respondents.

Determination of the probable cause, a function belonging to the public prosecutor; judicial review
allowed where it has been clearly established that the prosecutor committed grave abuse of
discretion.

In a preliminary investigation, a public prosecutor determines whether a crime has been

committed and whether there is probable cause that the accused is guilty thereof. 42 The
Secretary of Justice, however, may review or modify the resolution of the prosecutor.

"Probable cause is defined as such facts and circumstances that will engender a well-founded
belief that a crime has been committed and that the respondent is probably guilty thereof and
should be held for trial."43 Generally, a public prosecutor is afforded a wide latitude of discretion in
the conduct of a preliminary investigation. By way of exception, however, judicial review is
allowed where respondent has clearly established that the prosecutor committed grave abuse of
discretion that is, when he has exercised his discretion "in an arbitrary, capricious, whimsical or
despotic manner by reason of passion or personal hostility, patent and gross enough as to
amount to an evasion of a positive duty or virtual refusal to perform a duty enjoined by
law."44 Tested against these guidelines, we find that this case falls under the exception rather
than the general rule.

A close scrutiny of the substance of Prosecutor Edad’s Resolution dated July 10, 1997 readily
reveals that were it not for the Debt Settlement Agreement, there was indeed probable cause to
indict respondents for the crime charged. From her own assessment of the Complaint-Affidavit of
petitioner’s auditor, her preliminary finding is that "Ordinarily, the offense of estafa has been
sufficiently established."45 Interestingly, she suddenly changed tack and declared that the
agreement altered the relation of the parties and that novation had set in preventing the
incipience of any criminal liability on respondents. In light of the jurisprudence herein earlier
discussed, the prosecutor should not have gone that far and executed an apparent somersault.
Compounding further the error, the DOJ in dismissing petitioner’s petition, ruled out estafa
contrary to the findings of the prosecutor. Pertinent portion of the ruling reads:

Equivocally, there is no estafa in the instant case as it was not clearly shown how respondents
misappropriated the ₱53,873,500.00 which Universal owed your client after its checks deposited
with Metrobank were dishonored. Moreover, fraud is not present considering that the Executive
Committee and the Credit Committee of Metrobank were duly notified of these transactions which
they approved. Further, no damage was caused to your client as it agreed [to] the settlement
[with] Universal.46
The findings of the Secretary of Justice in sustaining the dismissal of the Complaint are matters of
defense best left to the trial court’s deliberation and contemplation after conducting the trial of the
criminal case. To emphasize, a preliminary investigation for the purpose of determining the
existence of probable cause is "not a part of the trial. A full and exhaustive presentation of the
parties’ evidence is not required, but only such as may engender a well-grounded belief that an
offense has been committed and that the accused is probably guilty thereof." 47 A "finding of
probable cause does not require an inquiry into whether there is sufficient evidence to procure a
conviction. It is enough that it is believed that the act or omission complained of constitutes the
offense charged."48 So we held in Balangauan v. Court of Appeals:49

Applying the foregoing disquisition to the present petition, the reasons of DOJ for affirming the
dismissal of the criminal complaints for estafa and/or qualified estafa are determinative of whether
or not it committed grave abuse of discretion amounting to lack or excess of jurisdiction. In
requiring "hard facts and solid evidence" as the basis for a finding of probable cause to hold
petitioners Bernyl and Katherene liable to stand trial for the crime complained of, the DOJ
disregards the definition of probable cause – that it is a reasonable ground of presumption that a
matter is, or may be, well-founded, such a state of facts in the mind of the prosecutor as would
lead a person of ordinary caution and prudence to believe, or entertain an honest or strong
suspicion, that a thing is so. The term does not mean "actual and positive cause" nor does it
import absolute certainty. It is merely based on opinion and reasonable belief; that is, the belief
that the act or omission complained of constitutes the offense charged. While probable cause
demands more than "bare suspicion," it requires "less than evidence which would justify
conviction." Herein, the DOJ reasoned as if no evidence was actually presented by respondent
HSBC when in fact the records of the case were teeming; or it discounted the value of such
substantiation when in fact the evidence presented was adequate to excite in a reasonable mind
the probability that petitioners Bernyl and Katherene committed the crime/s complained of. In so
doing, the DOJ whimsically and capriciously exercised its discretion, amounting to grave abuse of
discretion, which rendered its resolutions amenable to correction and annulment by the
extraordinary remedy of certiorari.

In the case at bar, as analyzed by the prosecutor, a prima facie case of estafa exists against
respondents. As perused by her, the facts as presented in the Complaint-Affidavit of the auditor
are reasonable enough to excite her belief that respondents are guilty of the crime complained of.
In Andres v. Justice Secretary Cuevas50 we had occasion to rule that the "presence or absence of
the elements of the crime is evidentiary in nature and is a matter of defense that may be passed
upon after a full-blown trial on the merits."51

Thus confronted with the issue on whether the public prosecutor and the Secretary of Justice
committed grave abuse of discretion in disposing of the case of petitioner, given the sufficiency of
evidence on hand, we do not hesitate to rule in the affirmative. We have previously ruled that
grave abuse of discretion may arise when a lower court or tribunal violates and contravenes the
Constitution, the law or existing jurisprudence.

Non-inclusion of officers of Universal not a ground for the dismissal of the complaint.

The DOJ in resolving to deny petitioner’s appeal from the resolution of the prosecutor gave
another ground – failure to implead the officers of Universal. It explained:

To allow your client to make the choice is to make an unwarranted classification under the law
which will result in grave injustice against herein respondents. Thus, if your client agreed that no
estafa was committed in this transaction with Universal who was the principal player and
beneficiary of this transaction[,] more so with herein respondents whose liabilities are based only
on conspiracy with Universal.521avvphi1
The ratiocination of the Secretary of Justice conveys the idea that if the charge against
respondents rests upon the same evidence used to charge co-accused (officers of Universal)
based on the latter’s conspiratorial participation, the non-inclusion of said co-accused in the
charge should benefit the respondents.

The reasoning of the DOJ is flawed.

Suffice it to say that it is indubitably within the discretion of the prosecutor to determine who must
be charged with what crime or for what offense. Public prosecutors, not the private complainant,
are the ones obliged to bring forth before the law those who have transgressed it.

Section 2, Rule 110 of the Rules of Court53 mandates that all criminal actions must be
commenced either by complaint or information in the name of the People of the Philippines
against all persons who appear to be responsible therefor. Thus the law makes it a legal duty for
prosecuting officers to file the charges against whomsoever the evidence may show to be
responsible for the offense. The proper remedy under the circumstances where persons who
ought to be charged were not included in the complaint of the private complainant is definitely not
to dismiss the complaint but to include them in the information. As the OSG correctly suggested,
the proper remedy should have been the inclusion of certain employees of Universal who were
found to have been in cahoots with respondents in defrauding petitioner. The DOJ, therefore,
cannot seriously argue that because the officers of Universal were not indicted, respondents
themselves should not likewise be charged. Their non-inclusion cannot be perversely used to
justify desistance by the public prosecutor from prosecution of the criminal case just because not
all of those who are probably guilty thereof were charged.

Mandamus a proper remedy when resolution of public respondent is tainted with grave abuse of
discretion.

Mandamus is a remedial measure for parties aggrieved. It shall issue when "any tribunal,
corporation, board, officer or person unlawfully neglects the performance of an act which the law
specifically enjoins as a duty resulting from an office, trust or station."54 The writ of mandamus is
not available to control discretion neither may it be issued to compel the exercise of discretion.
Truly, it is a matter of discretion on the part of the prosecutor to determine which persons appear
responsible for the commission of a crime. However, the moment he finds one to be so liable it
becomes his inescapable duty to charge him therewith and to prosecute him for the same. In
such a situation, the rule loses its discretionary character and becomes mandatory. Thus, where,
as in this case, despite the sufficiency of the evidence before the prosecutor, he refuses to file the
corresponding information against the person responsible, he abuses his discretion. His act is
tantamount to a deliberate refusal to perform a duty enjoined by law. The Secretary of Justice, on
the other hand, gravely abused his discretion when, despite the existence of sufficient evidence
for the crime of estafa as acknowledged by the investigating prosecutor, he completely ignored
the latter’s finding and proceeded with the questioned resolution anchored on purely evidentiary
matters in utter disregard of the concept of probable cause as pointed out in Balangauan. To be
sure, findings of the Secretary of Justice are not subject to review unless shown to have been
made with grave abuse.55 The present case calls for the application of the exception. Given the
facts of this case, petitioner has clearly established that the public prosecutor and the Secretary
of Justice committed grave abuse of discretion.

WHEREFORE, the petition is GRANTED. The assailed Decision of the Court of Appeals in CA-
G.R. SP No. 58548 promulgated on October 21, 2002 affirming the Resolutions dated June 22,
1998 and March 1, 2000 of the Secretary of Justice, and its Resolution dated July 12, 2004
denying reconsideration thereon are hereby REVERSED and SET ASIDE. The public prosecutor
is ordered to file the necessary information for estafa against the respondents.
SO ORDERED.

6- 136 G.R. No. 172139. December 8, 2010

Jocelyn M. Toledo Vs. Marilou M. Hyden, First Division

It is true that the imposition of an unconscionable rate of interest on a money debt is immoral and
unjust and the court may come to the aid of the aggrieved party to that contract. However, before
doing so, courts have to consider the settled principle that the law will not relieve a party from the
effects of an unwise, foolish or disastrous contract if such party had full awareness of what she
was doing.
This Petition for Review on Certiorari1 assails the Decision2 dated August 24, 2005 of the Court of
Appeals (CA) in CA-G.R. CV No. 79805, which affirmed the Decision dated March 10, 2003 3 of
the Regional Trial Court (RTC), Branch 22, Cebu City in Civil Case No. CEB-22867. Also assailed
is the
Resolution dated March 8, 2006 denying the motion for reconsideration.
Factual Antecedents
Petitioner Jocelyn M. Toledo (Jocelyn), who was then the Vice-President of the College
Assurance Plan (CAP) Phils., Inc., obtained several loans from respondent Marilou M. Hyden
(Marilou). The transactions are briefly summarized below:
1) August 15, 1993 ……… ₱ 30,000.00
2) April 21, 1994 ……… 100,000.00
3) October 2, 1995 ……… 30,000.00
with 6% monthly interest
4) October 9, 1995 ……… 30,000.00

5) May 22, 1997 ……… 100,000.00 with 7% monthly interest

TOTAL AMOUNT OF LOAN ……… ₱ 290,000.00 4

From August 15, 1993 up to December 31, 1997, Jocelyn had been religiously paying Marilou the
stipulated monthly interest by issuing checks and depositing sums of money in the bank account
of the latter. However, the total principal amount of ₱290,000.00 remained unpaid. Thus, in April
1998, Marilou visited Jocelyn in her office at CAP in Cebu City and asked Jocelyn and the other
employees who were likewise indebted to her to acknowledge their debts. A document entitled
"Acknowledgment of Debt"5 for the amount of ₱290,000.00 was signed by Jocelyn with two of her
subordinates as witnesses. The said amount represents the principal consolidated amount of the
aforementioned previous debts due on December 25, 1998. Also on said occasion, Jocelyn
issued five checks to Marilou representing renewal payment of her five previous loans, viz:
Check No. 0010761 dated September 2, 1998 ......... ₱ 30,000.00
Check No. 0010762 dated September 9, 1998 ......... 30,000.00
Check No. 0010763 dated September 15, 1998 ......... 30,000.00
Check No. 0010764 dated September 22, 1998 ......... 100,000.00
Check No. 0010765 dated September 25, 1998 ......... 100,000.00
TOTAL ₱ 290,000.00
In June 1998, Jocelyn asked Marilou for the recall of Check No. 0010761 in the amount of
₱30,000.00 and replaced the same with six checks, in staggered amounts, namely:
Check No. 0010494 dated July 2, 1998 ......... ₱ 6,625.00
Check No. 0010495 dated August 2, 1998 ......... 6,300.00
Check No. 0010496 dated September 2, 1998 ......... 5,975.00
Check No. 0010497 dated October 2, 1998 ......... 6,500.00
Check No. 0010498 dated November 2, 1998 ......... 5,325.00
Check No. 0010499 dated December 2, 1998 ......... 5,000.00
TOTAL ₱ 35,725.00
After honoring Check Nos. 0010494, 0010495 and 0010496, Jocelyn ordered the stop payment
on the remaining checks and on October 27, 1998, filed with the RTC of Cebu City a complaint 6
against Marilou for Declaration of Nullity and Payment, Annulment, Sum of Money, Injunction and
Damages.
Jocelyn averred that Marilou forced, threatened and intimidated her into signing the
"Acknowledgment of Debt" and at the same time forced her to issue the seven postdated checks.
She claimed that Marilou even threatened to sue her for violation of Batas Pambansa (BP) Blg.
22 or the Bouncing Checks Law if she will not sign the said document and draw the above-
mentioned checks. Jocelyn further claimed that the application of her total payment of
₱528,550.00 to interest alone is illegal, unfounded, unjust, oppressive and contrary to law
because there was no written agreement to pay interest.
On November 23, 1998, Marilou filed an Answer7 with Special Affirmative Defenses and
Counterclaim alleging that Jocelyn voluntarily obtained the said loans knowing fully well that the
interest rate was at 6% to 7% per month. In fact, a 6% to 7% advance interest was already
deducted from the loan amount given to Jocelyn.
Ruling of the Regional Trial Court
The court a quo did not find any showing that Jocelyn was forced, threatened, or intimidated in
signing the document referred to as "Acknowledgment of Debt" and in issuing the postdated
checks. Thus, in its March 10, 2003 Decision the trial court ruled in favor of Marilou, viz:
WHEREFORE, premised on the foregoing, the Court hereby declares the document
"Acknowledgment of Debt" valid and binding. PLAINTIFF is indebted to DEFENDANT [for] the
amount of TWO HUNDRED NINETY THOUSAND (₱290,000.00) PESOS since December 25,
1998 less the amount of EIGHTEEN THOUSAND NINE HUNDRED (₱18,900.00) PESOS,
equivalent to the three checks made good (₱6,625.00 dated 07-02-1998; ₱6,300.00 dated 08-02-
1998; and ₱5,975.00 dated 09-02-1998).
Consequently, PLAINTIFF is hereby ordered to pay DEFENDANT the amount of TWO
HUNDRED SEVENTY ONE THOUSAND ONE HUNDRED (₱271,100.00) PESOS due on
December 25, 1998 with a 12% interest per annum or 1% interest per month until such time that
the said amount shall have been fully paid.
No pronouncement as to costs.
SO ORDERED.8
On March 26, 2003, Jocelyn filed an Earnest Motion for Reconsideration,9 which was denied by
the trial court in its Order10 dated April 29, 2003 stating that it finds no sufficient reason to disturb
its March 10, 2003 Decision.
Ruling of the Court of Appeals
On appeal, Jocelyn asserts that she had made payments in the total amount of ₱778,000.00 for a
principal amount of loan of only ₱290,000.00. What is appalling, according to Jocelyn, was that
such payments covered only the interest because of the excessive, iniquitous, unconscionable
and exorbitant imposition of the 6% to 7% monthly interest.
On August 24, 2005, the CA issued its Decision which provides:
WHEREFORE, premises considered, the Decision dated March 10, 2003 and the Order dated
April 29, 2003, of the Regional Trial Court, 7th Judicial Region, Branch 22, Cebu City, in Civil
Case No. CEB-22867 are hereby AFFIRMED. No pronouncement as to costs.
SO ORDERED.11
The Motion for Reconsideration12 filed by Jocelyn was denied by the CA through its Resolution 13
dated March 8, 2006.
Issues
Hence, this petition raising the following issues:
I.
Whether the CA gravely erred when it held that the imposition of interest at the rate of six percent
(6%) to seven percent (7%) is not contrary to law, morals, good customs, public order or public
policy.
II.
Whether the CA gravely erred when it failed to declare that the "Acknowledgment of Debt" is an
inexistent contract that is void from the very beginning pursuant to Article 1409 of the New Civil
Code.
Petitioner’s Arguments
Jocelyn posits that the CA erred when it held that the imposition of interest at the rates of 6% to
7% per month is not contrary to law, not unconscionable and not contrary to morals. She likewise
contends that the CA erred in ruling that the "Acknowledgment of Debt" is valid and binding.
According to Jocelyn, even assuming that the execution of said document was not attended with
force, threat and intimidation, the same must nevertheless be declared null and void for being
contrary to law and public policy. This is borne out by the fact that the payments in the total
amount of ₱778,000.00 was applied to interest payment alone. This only proves that the
transaction was iniquitous, excessive, oppressive and unconscionable.
Respondent’s Arguments
On the other hand, Marilou would like this Court to consider the fact that the document referred to
as "Acknowledgment of Debt" was executed in the safe surroundings of the office of Jocelyn and
it was witnessed by two of her staff. If at all there had been coercion, then Jocelyn could have
easily prevented her staff from affixing their signatures to said document. In fact, petitioner had
admitted that she was the one who went to the tables of her staff to let them sign the said
document.
Our Ruling
The petition is without merit.
The 6% to 7% interest per month paid by Jocelyn is not excessive under the circumstances of
this case.
In view of Central Bank Circular No. 905 s. 1982, which suspended the Usury Law ceiling on
interest effective January 1, 1983, parties to a loan agreement have wide latitude to stipulate
interest rates. Nevertheless, such stipulated interest rates may be declared as illegal if the same
is unconscionable.14 There is certainly nothing in said circular which grants lenders carte blanche
authority to raise interest rates to levels which will either enslave their borrowers or lead to a
hemorrhaging of their assets.15 In fact, in Medel v. Court of Appeals,16 we annulled a stipulated
5.5% per month or 66% per annum interest with additional service charge of 2% per annum and
penalty charge of 1% per month on a ₱500,000.00 loan for being excessive, iniquitous,
unconscionable and exorbitant.
In this case, however, we cannot consider the disputed 6% to 7% monthly interest rate to be
iniquitous or unconscionable vis-à-vis the principle laid down in Medel. Noteworthy is the fact that
in Medel, the defendant-spouses were never able to pay their indebtedness from the very
beginning and when their obligations ballooned into a staggering sum, the creditors filed a
collection case against them. In this case, there was no urgency of the need for money on the
part of Jocelyn, the debtor, which compelled her to enter into said loan transactions. She used the
money from the loans to make advance payments for prospective clients of educational plans
offered by her employer. In this way, her sales production would increase, thereby entitling her to
50% rebate on her sales. This is the reason why she did not mind the 6% to 7% monthly interest.
Notably too, a business transaction of this nature between Jocelyn and Marilou continued for
more than five years. Jocelyn religiously paid the agreed amount of interest until she ordered for
stop payment on some of the checks issued to Marilou. The checks were in fact sufficiently
funded when she ordered the stop payment and then filed a case questioning the imposition of a
6% to 7% interest rate for being allegedly iniquitous or unconscionable and, hence, contrary to
morals.
It was clearly shown that before Jocelyn availed of said loans, she knew fully well that the same
carried with it an interest rate of 6% to 7% per month, yet she did not complain. In fact, when she
availed of said loans, an advance interest of 6% to 7% was already deducted from the loan
amount, yet she never uttered a word of protest.
After years of benefiting from the proceeds of the loans bearing an interest rate of 6% to 7% per
month and paying for the same, Jocelyn cannot now go to court to have the said interest rate
annulled on the ground that it is excessive, iniquitous, unconscionable, exorbitant, and absolutely
revolting to the conscience of man. "This is so because among the maxims of equity are (1) he
who seeks equity must do equity, and (2) he who comes into equity must come with clean hands.
The latter is a frequently stated maxim which is also expressed in the principle that he who has
done inequity shall not have equity. It signifies that a litigant may be denied relief by a court of
equity on the ground that his conduct has been inequitable, unfair and dishonest, or fraudulent, or
deceitful as to the controversy in issue." 17
We are convinced that Jocelyn did not come to court for equitable relief with equity or with clean
hands. It is patently clear from the above summary of the facts that the conduct of Jocelyn can by
no means be characterized as nobly fair, just, and reasonable. This Court likewise notes certain
acts of Jocelyn before filing the case with the RTC. In September 1998, she requested Marilou
not to deposit her checks as she can cover the checks only the following month. On the next
month, Jocelyn again requested for another extension of one month. It turned out that she was
only sweet-talking Marilou into believing that she had no money at that time. But as testified by
Serapio Romarate,18 an employee of the Bank of Commerce where Jocelyn is one of their clients,
there was an available balance of ₱276,203.03 in the latter’s account and yet she ordered for the
stop payments of the seven checks which can actually be covered by the available funds in said
account. She then caught Marilou by surprise when she surreptitiously filed a case for declaration
of nullity of the document and for damages.
The document "Acknowledgment of Debt" is valid and binding.
Jocelyn seeks for the nullification of the document entitled "Acknowledgment of Debt" and wants
this Court to declare that she is no longer indebted to Marilou in the amount of ₱290,000.00 as
she had already paid a total amount of ₱778,000.00. She claims that said document is an
inexistent contract that is void from the very beginning as clearly provided for by Article 1409 19 of
the New Civil Code.
Jocelyn further claims that she signed the said document and issued the seven postdated checks
because Marilou threatened to sue her for violation of BP Blg. 22.
Jocelyn is misguided. Even if there was indeed such threat made by Marilou, the same is not
considered as threat that would vitiate consent. Article 1335 of the New Civil Code is very specific
on this matter. It provides:
Art. 1335. There is violence when in order to wrest consent, serious or irresistible force is
employed.
xxxx
A threat to enforce one’s claim through competent authority, if the claim is just or legal,
does not vitiate consent. (Emphasis supplied.)
Clearly, we cannot grant Jocelyn the relief she seeks.
As can be seen from the records of the case, Jocelyn has failed to prove her claim that she was
made to sign the document "Acknowledgment of Debt" and draw the seven Bank of Commerce
checks through force, threat and intimidation. As earlier stressed, said document was signed in
the office of Jocelyn, a high ranking executive of CAP, and it was Jocelyn herself who went to the
table of her two subordinates to procure their signatures as witnesses to the execution of said
document. If indeed, she was forced to sign said document, then Jocelyn should have
immediately taken the proper legal remedy. But she did not. Furthermore, it must be noted that
after the execution of said document, Jocelyn honored the first three checks before filing the
complaint with the RTC. If indeed she was forced she would never have made good on the first
three checks.
It is provided, as one of the conclusive presumptions under Rule 131, Section 2(a), of the Rules
of Court that, "Whenever a party has, by his own declaration, act or omission, intentionally and
deliberately led another to believe a particular thing to be true, and to act upon such belief, he
cannot, in any litigation arising out of such declaration, act or omission, be permitted to falsify it."
This is known as the principle of estoppel.
"The essential elements of estoppel are: (1) conduct amounting to false representation or
concealment of material facts or at least calculated to convey the impression that the facts are
otherwise than, and inconsistent with, those which the party subsequently attempts to assert; (2)
intent, or at least expectation, that this conduct shall be acted upon by, or at least influence, the
other party; and, (3) knowledge, actual or constructive, of the real facts."20
Here, it is uncontested that Jocelyn had in fact signed the "Acknowledgment of Debt" in April
1998 and two of her subordinates served as witnesses to its execution, knowing fully well the
nature of the contract she was entering into. Next, Jocelyn issued five checks in favor of Marilou
representing renewal payment of her loans amounting to ₱290,000.00. In June 1998, she asked
to recall Check No. 0010761 in the amount of ₱30,000.00 and replaced the same with six checks,
in staggered amounts. All these are indicia that Jocelyn treated the "Acknowledgment of Debt" as
a valid and binding contract.1avvphi1
More significantly, Jocelyn already availed herself of the benefits of the "Acknowledgment of
Debt," the validity of which she now impugns. As aptly found by the RTC and the CA, Jocelyn
was making a business out of the loaned amounts. She was actually using the money to make
advance payments for her prospective clients so that her sales production would increase.
Accordingly, she did not mind the 6% to 7% interest per month as she was getting a 50% rebate
on her sales.
Clearly, by her own acts, Jocelyn is estopped from impugning the validity of the
"Acknowledgment of Debt." "[A] party to a contract cannot deny the validity thereof after enjoying
its benefits without outrage to one’s sense of justice and fairness." 21 "It is a long established
doctrine that the law does not relieve a party from the effects of an unwise, foolish or disastrous
contract, entered into with all the required formalities and with full awareness of what she was
doing. Courts have no power to relieve parties from obligations voluntarily assumed, simply
because their contracts turned out to be disastrous or unwise investments." 22
WHEREFORE, the instant petition for review on certiorari is DENIED. The Decision of the Court
of Appeals in CA-G.R. CV No. 79805 dated August 24, 2005 affirming the Decision dated March
10, 2003 of the Regional Trial Court, Branch 22, Cebu City, in Civil Case No. CEB-22867 is
AFFIRMED.
SO ORDERED.

7- 160 Philippine National Bank Vs. F.F. Cruz and Co., Inc, GR 173259, July 25, 2011 – First Division

As between a bank and its depositor, where the bank’s negligence is the proximate cause of the
loss and the depositor is guilty of contributory negligence, the greater proportion of the loss shall
be borne by the bank.

This Petition for Review on Certiorari seeks to reverse and set aside the Court of Appeal’s
January 31, 2006 Decision1 in CA-G.R. CV No. 81349, which modified the January 30, 2004
Decision2 of the Regional Trial Court of Manila City, Branch 46 in Civil Case No. 97-84010, and
the June 26, 2006 Resolution3 denying petitioner’s motion for reconsideration.

Factual Antecedents

The antecedents are aptly summarized by the appellate court:

In its complaint, it is alleged that [respondent F.F. Cruz & Co., Inc.] (hereinafter FFCCI) opened
savings/current or so-called combo account No. 0219-830-146 and dollar savings account No.
0219-0502-458-6 with [petitioner Philippine National Bank] (hereinafter PNB) at its Timog Avenue
Branch. Its President Felipe Cruz (or Felipe) and Secretary-Treasurer Angelita A. Cruz (or
Angelita) were the named signatories for the said accounts.

The said signatories on separate but coeval dates left for and returned from the Unites States of
America, Felipe on March 18, 1995 until June 10, 1995 while Angelita followed him on March 29,
1995 and returned ahead on May 9, 1995.

While they were thus out of the country, applications for cashier’s and manager’s [checks]
bearing Felipe’s [signature] were presented to and both approved by the PNB. The first was on
March 27, 1995 for ₱9,950,000.00 payable to a certain Gene B. Sangalang and the other one
was on April 24, 1995 for ₱3,260,500.31 payable to one Paul Bautista. The amounts of these
checks were then debited by the PNB against the combo account of [FFCCI].

When Angelita returned to the country, she had occasion to examine the PNB statements of
account of [FFCCI] for the months of February to August 1995 and she noticed the deductions of
₱9,950,000.00 and ₱3,260,500.31. Claiming that these were unauthorized and fraudulently
made, [FFCCI] requested PNB to credit back and restore to its account the value of the checks.
PNB refused, and thus constrained [FFCCI] filed the instant suit for damages against the PNB
and its own accountant Aurea Caparas (or Caparas).

In its traverse, PNB averred lack of cause of action. It alleged that it exercised due diligence in
handling the account of [FFCCI]. The applications for manager’s check have passed through the
standard bank procedures and it was only after finding no infirmity that these were given due
course. In fact, it was no less than Caparas, the accountant of [FFCCI], who confirmed the
regularity of the transaction. The delay of [FFCCI] in picking up and going over the bank
statements was the proximate cause of its self-proclaimed injury. Had [FFCCI] been
conscientious in this regard, the alleged chicanery would have been detected early on and
Caparas effectively prevented from absconding with its millions. It prayed for the dismissal of the
complaint.4

Regional Trial Court’s Ruling

The trial court ruled that F.F. Cruz and Company, Inc. ( FFCCI) was guilty of negligence in
clothing Aurea Caparas (Caparas) with authority to make decisions on and dispositions of its
account which paved the way for the fraudulent transactions perpetrated by Caparas; that, in
practice, FFCCI waived the two-signature requirement in transactions involving the subject
combo account so much so that Philippine National Bank (PNB) could not be faulted for honoring
the applications for manager’s check even if only the signature of Felipe Cruz appeared thereon;
and that FFCCI was negligent in not immediately informing PNB of the fraud.

On the other hand, the trial court found that PNB was, likewise, negligent in not calling or
personally verifying from the authorized signatories the legitimacy of the subject withdrawals
considering that they were in huge amounts. For this reason, PNB had the last clear chance to
prevent the unauthorized debits from FFCCI’s combo account. Thus, PNB should bear the whole
loss –

WHEREFORE, judgment is hereby rendered ordering defendant [PNB] to pay plaintiff [FFCCI]
₱13,210,500.31 representing the amounts debited against plaintiff’s account, with interest at the
legal rate computed from the filing of the complaint plus costs of suit.

IT IS SO ORDERED.5

Court of Appeal’s Ruling

On January 31, 2006, the CA rendered the assailed Decision affirming with modification the
Decision of the trial court, viz:

WHEREFORE, the appealed Decision is AFFIRMED with the MODIFICATION that [PNB] shall
pay [FFCCI] only 60% of the actual damages awarded by the trial court while the remaining 40%
shall be borne by [FFCCI].

SO ORDERED.6

The appellate court ruled that PNB was negligent in not properly verifying the genuineness of the
signatures appearing on the two applications for manager’s check as evidenced by the lack of the
signature of the bank verifier thereon. Had this procedure been followed, the forgery would have
been detected.

Nonetheless, the appellate court found FFCCI guilty of contributory negligence because it clothed
its accountant/bookkeeper Caparas with apparent authority to transact business with PNB. In
addition, FFCCI failed to timely examine its monthly statement of account and report the
discrepancy to PNB within a reasonable period of time to prevent or recover the loss. FFCCI’s
contributory negligence, thus, mitigated the bank’s liability. Pursuant to the rulings in Philippine
Bank of Commerce v. Court of Appeals7 and The Consolidated Bank & Trust Corporation v. Court
of Appeals,8 the appellate court allocated the damages on a 60-40 ratio with the bigger share to
be borne by PNB.

From this decision, both FFCCI and PNB sought review before this Court.

On August 17, 2006, FFCCI filed its petition for review on certiorari which was docketed as G.R.
No. 173278.9 On March 7, 2007, the Court issued a Resolution10 denying said petition. On June
13, 2007, the Court issued another Resolution11 denying FFCCI’s motion for reconsideration. In
denying the aforesaid petition, the Court ruled that FFCCI essentially raises questions of fact
which are, as a rule, not reviewable under a Rule 45 petition; that FFCCI failed to show that its
case fell within the established exceptions to this rule; and that FFCCI was guilty of contributory
negligence. Thus, the appellate court correctly mitigated PNB’s liability.

On July 13, 2006, PNB filed its petition for review on certiorari which is the subject matter of this
case.

Issue

Whether the Court of Appeals seriously erred when it found PNB guilty of negligence. 12

Our Ruling

We affirm the ruling of the CA.

PNB is guilty of negligence.

Preliminarily, in G.R. No. 173278, we resolved with finality13 that FFCCI is guilty of contributory
negligence, thus, making it partly liable for the loss (i.e., as to 40% thereof) arising from the
unauthorized withdrawal of ₱13,210,500.31 from its combo account. The case before us is, thus,
limited to PNB’s alleged negligence in the subject transactions which the appellate court found to
be the proximate cause of the loss, thus, making it liable for the greater part of the loss (i.e., as to
60% thereof) pursuant to our rulings in Philippine Bank of Commerce v. Court of
Appeals14 and The Consolidated Bank & Trust Corporation v. Court of Appeals.15

PNB contends that it was not negligent in verifying the genuineness of the signatures appearing
on the subject applications for manager’s check. It claims that it followed the standard operating
procedure in the verification process and that four bank officers examined the signatures and
found the same to be similar with those found in the signature cards of FFCCI’s authorized
signatories on file with the bank.

PNB raises factual issues which are generally not proper for review under a Rule 45
petition.1avvphi1 While there are exceptions to this rule, we find none applicable to the present
case. As correctly found by the appellate court, PNB failed to make the proper verification
because the applications for the manager’s check do not bear the signature of the bank verifier.
PNB concedes the absence16 of the subject signature but argues that the same was the result of
inadvertence. It posits that the testimonies of Geronimo Gallego (Gallego), then the branch
manager of PNB Timog Branch, and Stella San Diego (San Diego), then branch cashier, suffice
to establish that the signature verification process was duly followed.
We are not persuaded.

First, oral testimony is not as reliable as documentary evidence. 17 Second, PNB’s own witness,
San Diego, testified that in the verification process, the principal duty to determine the
genuineness of the signature devolved upon the account analyst. 18 However, PNB did not
present the account analyst to explain his or her failure to sign the box for signature and balance
verification of the subject applications for manager’s check, thus, casting doubt as to whether he
or she did indeed verify the signatures thereon. Third, we cannot fault the appellate court for not
giving weight to the testimonies of Gallego and San Diego considering that the latter are naturally
interested in exculpating themselves from any liability arising from the failure to detect the
forgeries in the subject transactions. Fourth, Gallego admitted that PNB’s employees received
training on detecting forgeries from the National Bureau of Investigation. 19 However, Emmanuel
Guzman, then NBI senior document examiner, testified, as an expert witness, that the forged
signatures in the subject applications for manager’s check contained noticeable and significant
differences from the genuine signatures of FFCCI’s authorized signatories and that the forgeries
should have been detected or observed by a trained signature verifier of any bank.20

Given the foregoing, we find no reversible error in the findings of the appellate court that PNB
was negligent in the handling of FFCCI’s combo account, specifically, with respect to PNB’s
failure to detect the forgeries in the subject applications for manager’s check which could have
prevented the loss. As we have often ruled, the banking business is impressed with public
trust.21 A higher degree of diligence is imposed on banks relative to the handling of their affairs
than that of an ordinary business enterprise.22 Thus, the degree of responsibility, care and
trustworthiness expected of their officials and employees is far greater than those of ordinary
officers and employees in other enterprises.23 In the case at bar, PNB failed to meet the high
standard of diligence required by the circumstances to prevent the fraud. In Philippine Bank of
Commerce v. Court of Appeals24 and The Consolidated Bank & Trust Corporation v. Court of
Appeals,25 where the bank’s negligence is the proximate cause of the loss and the depositor is
guilty of contributory negligence, we allocated the damages between the bank and the depositor
on a 60-40 ratio. We apply the same ruling in this case considering that, as shown above, PNB’s
negligence is the proximate cause of the loss while the issue as to FFCCI’s contributory
negligence has been settled with finality in G.R. No. 173278. Thus, the appellate court properly
adjudged PNB to bear the greater part of the loss consistent with these rulings.

WHEREFORE, the petition is DENIED. The January 31, 2006 Decision and June 26, 2006
Resolution of the Court of Appeals in CA-G.R. CV No. 81349 are AFFIRMED.

Costs against petitioner.

SO ORDERED.

8- 184 Sps Hipolito v. Cinco, GR 174143, Nov 28, 2011 – First Division

Findings of fact by administrative agencies are generally accorded great respect, if not finality, by
the courts1 by reason of the special knowledge and expertise of said administrative agencies over
matters falling under their jurisdiction.

Challenged in this Petition for Review on Certiorari2 are the May 19, 2006 Decision3 and August
15, 2006 Resolution4 of the Court of Appeals (CA) in CA-G.R. SP No. 89783 which dismissed
petitioners’ Petition for Review and denied their Motion for Reconsideration respectively. Said
assailed CA Decision which affirmed the February 28, 2005 Resolution 5 of the Office of the
President (OP), in O.P. Case No. 04-F-262, states, viz:
In fine, we hold that public respondent Office of the President, in affirming the resolution of the
Secretary of the DPWH which sustained the resolution and the demolition order of the OBO,
committed no grave abuse of discretion, the same being supported by evidence and having been
issued in accordance with law and jurisprudence.

WHEREFORE, the petition is DISMISSED. The assailed Resolution dated February 28, 2005 of
the Office of the President of the Philippines, issued through the Deputy Executive Secretary for
Legal Affairs in O.P. Case No. 04-F-262, is AFFIRMED.

SO ORDERED.6

Petitioners beseech this Court to reverse and set aside said Decision and consequently, to alter a
string of consistent Resolutions issued by the OP in the said O.P. Case No. F-262, the Secretary
of the Department of Public Works and Highways (DPWH) in NBC Case No. 17-03-I-MLA,7 and
the Office of the Building Official (OBO) of the City of Manila in NBC Case No. NG-2002-06.8

Factual Antecedents

Petitioner-spouses Ricardo Hipolito, Jr. and Liza Hipolito (petitioners) allege that on June 15,
1989, Edeltrudis Hipolito y Mariano (Edeltrudis)9 entered into an agreement10 with Francisco
Villena11 (now deceased) to rent a portion of the property located at 2176 Nakar Street, San
Andres Bukid, Manila and to construct an apartment-style building adjacent to the existing house
thereon. The contract was for a period of 20 years. Pursuant to the agreement, Edeltrudis built a
three-storey apartment building without securing a building permit. Petitioners inherited the
apartment building upon the death of Edeltrudis.

In 2002 or 13 years after the execution of the agreement, petitioners and the heirs of Francisco
Villena, all residing in the property, were informed that respondent Atty. Carlos D. Cinco (Atty.
Cinco) acquired the subject property through a deed of sale sometime in 1976.

On June 17, 2002, herein respondents Atty. Cinco, Teresita Cinco and Dr. Carlota Balde Cinco
(respondents) filed with the OBO a verified request12 for structural inspection of an old structure
located at 2176 Nakar Street, San Andres Bukid, Manila.

Acting on the request, Building Inspector Engineer Leonardo B. Rico (Engr. Rico) conducted an
initial inspection. In his memorandum Engr. Rico reported that two old and dilapidated buildings
made of wooden materials were found in the premises and recommended that the matter be
referred to the Committee on Buildings (Committee) for further appropriate action and disposition.

Deemed as a petition for condemnation/abatement pursuant to the National Building Code (NBC)
and its Implementing Rules and Regulations, the verified request of the respondents was referred
to the Committee for Hearing/ Investigation.

With prior notices to the parties and the tenants, three hearings were subsequently held from
August 12, 2002 to September 20, 2002 for purposes of resolving the focal issue of "the structural
stability, architectural presentability, electrical and fire safety aspect to determine [whether] or not
the subject buildings are still safe for continued occupancy."13 On September 20, 2002, Victoria
Villena, wife and heir of Francisco Villena and owner of one of the two buildings, filed a counter
manifestation questioning respondents’ personality to file the petition for condemnation, and
refuting the technical evaluation reports of Engr. Rico and respondents’ commissioned engineer.
Whereupon, the Committee was constrained to schedule an ocular inspection of the subject
buildings on October 7, 2002. A report on the ocular inspection conducted was thereafter
submitted through a Memorandum 14 dated October 8, 2002, which states:
x x x The subject structure is a 3-storey at the rear portion and Two (2)[-] storey at the front made
up of wooden materials with G.I. sheet roofings.

II. Findings:

1. Corrugated G.I. sheet roofings and its accessories incurred extensive

deterioration/[dilapidation] due to weathering.

2. Ceiling boards [bulging] attributed to water leaks from defective roofing.

3. Exterior and interior wooden boards deteriorated.

4. Doors/windows including its jambs deteriorated/[dilapidated].

5. No provisions of firewall on the sides abutting private lot.

6. Rafters, purlins, and girts deteriorated due to neglect of maintenance.

7. Vibrations were felt on the wooden flooring when exerting wt. An indication that its
support suffered [material] fatigue due to wear and tear and termite infestation.

8. Wooden columns incurred deterioration/[dilapidation] due to weathering and termite

infestation.

9. Open wiring installation/fire hazard.

10. With notices of condemned installation No. 2K3-62042 EPM issued by OIC, City
Electrical Division, DEPW.

11. Inadequate water supply and drainage system.

12. Outmoded T & G due to neglect of maintenance.

13. Inadequate sanitary/plumbing installation.

III. RECOMMENDATION:

From the foregoing, the subject buildings [appear] to have incurred extensive
deterioration/[dilapidation] [attributed] mainly to long weather exposure, poor maintenance and
termite infestation on its architectural and structural components by 60-80% which constitutes an
Architectural eyesore, structurally unsafe as well as fire and electrical hazard thereby
endangering the life, safety, health and welfare [of] the general public specifically the tenants
thereat, hence, it is strongly recommended that the subject building be declared dangerous and
ruinous in pursuance of Sec. 214 and 215 and Rules VII and Rule VIII of the Implementing Rules
and Regulations of P.D. 1096.

Ruling of the Office of the Building Official

In a Resolution15 dated March 26, 2003, the OBO declared the buildings dangerous and ruinous,
and recommended their demolition, to wit:

xxxx
On the basis of the ocular inspection report submitted by the Committee on Buildings and the
findings of the OIC, City Electrical Division DEPW which form part of this resolution, it appearing
that the subject structures incurred an extensive degree of [dilapidation]/deterioration by 60-80%
attributed mainly to long weather exposure, termite infestation and neglect of maintenance on its
architectural and structural component which constitute architectural eyesore, structurally unsafe
as well as electrical hazards thereby endangering the life, health property and welfare of the
general public particularly the tenants thereat [sic].

Such sorry condition of said structures exist to the extent that remedial/ rehabilitation which is no
longer practical and economical as it would entail/ necessitate a total overdone thereof [sic].

WHEREFORE, premises considered the Committee on Buildings and in consonance with the
findings of the OIC, City Electrical Division DEPW the subject buildings are hereby found and
declared Dangerous and Ruinous and strongly recommending the issuance of the corresponding
Demolition Order in pursuance of Section[s] 214 and 215 of the National Building Code and Rule
VII and VIII of its Implementing Rules and Regulations further directing the tenants/ occupants
thereat to vacate the premises within fifteen (15) days from receipt hereof to pave the way for its
peaceful and orderly [d]emolition activity.

SO ORDERED.

A Demolition Order16 addressed to the respondents was accordingly issued on even date with
petitioners and their tenants duly furnished with a copy thereof.

Petitioners thus appealed17 to the DPWH.

Ruling of the Department of Public Works and Highways

In their appeal, petitioners prayed for the reversal of the Resolution of the OBO and for the setting
aside of the Demolition Order on the ground that same were anomalously issued. They likewise
contended that respondents’ petition for condemnation was actually an attempt to circumvent
their rights as builders in good faith. Petitioners prayed for a separate inspection of the two
buildings by an impartial body.

Thus, another ocular inspection was conducted by the Inspectorate Team of the DPWH to
determine the actual physical condition of the subject buildings. The Inspectorate Team reported
thus:

There are two (2) Buildings/Structures subject of this appeal. For proper identification of the two
(2) Storey Residential Building located at front No. 2176 Nakar Street, San Andres Bukid, is
designated as Building I while the Three (3) Storey Residential Building located at the rear portion
is designated as [B]uilding 2.

Building 1

Building I is pre-war vintage (t)wo (2)[-](s)torey structure generally made of wooden materials.
Corrugated G.I. roofing sheets and its accessories are extensively corroded and deteriorated due
to long existence, weather exposure and improper maintenance. Gutters and [down spouts] are
already missing. Interior and exterior wooden board partitions are deteriorated by about eighty
percent (80%). Roof eaves and media agues are deteriorated and some wooden members are
ready to collapse. Doors and windows including [their] jambs are deteriorated by about eighty
percent (80%). Wooden stair[s] leading to second floor is rotten and deteriorated due to long
existence and termite infestation. Wooden board floorings are sagging and vibration can be felt
when walking on it. Plywood ceiling boards are deteriorated by about eighty percent (80%).

The wooden roof framing parts such as rafters, purlins, and girts are rotten. Majority of the
wooden posts are termite infested and deteriorated. The wooden beams and floor joists are noted
to have incurred deterioration. Vibration is felt at the second floor wooden flooring when walked
upon, an indication that its wooden structural supports show signs of material fatigue due to wear
and tear and termite infestation. Structural components of the structure were observed to have
deteriorated by about seventy five percent (75%).

Sanitary/Plumbing fixtures and systems within the building are noted outmoded, inadequate and
not properly maintained. Inadequate water supply and drainage system within the building is
noted. The comfort room is useable and functioning but is not properly ventilated and unsanitary.

The electrical wiring insulation shows sign of brittleness due to excessive exposure to ambient
heat, moisture and time element. Excessive octopus connections and dangling of
wires/extensions [sic] cords are observed. Some switches and convenience outlets are detached
and defective. Junction/pullboxes are not properly covered thus exposing electrical wiring
connections. Some electrical wiring installations are attached to deteriorated parts of the building.
The electrical wiring installations are already old, not properly maintained and inadequate to
conform to the rules and regulations of the Philippine Electrical Code (PEC).

Building 2

Building 2 is a three (3)[-](s)torey structure located at the back of the Building I, and the usage is
purely for residential purposes. The building is constructed [out] of wooden materials, corrugated
G.I. roofing sheets and plain G.I. sheets for its accessories. The said building was constructed
sometime in 1989, however, the construction is not in accordance with the standard and the
requirements of the National Building Code (PD 1096). Corrugated G.I. roofing sheets are
corroded and deterioration is about seventy percent (70%). [Down spouts] and gutters are no
longer in place. Interior and exterior wooden board sidings have incurred about sixty percent
(60%) deterioration. Some rooms have no proper ventilation due to excessive partitioning. Eaves
[have] no ceiling. Wooden board floorings are sagging and vibration is felt when walked upon due
to undersized wooden framing. Substandard ceiling height. Plywood ceiling boards are bulging.
No fire resistive wall provided between the two buildings.

As to the Structural, Sanitary/Plumbing and Electrical aspects, Building 2 has the same findings
as in Building I.

From the foregoing, it appears that the subject building attained a degree of dilapidation that
repair works are no longer practical and economical to undertake.

Therefore, it is recommended that the Demolition Order issued by the OBO, Manila be
sustained.18

On May 19, 2004, the Secretary of the DPWH rendered a Resolution19 dismissing the appeal of
the petitioners for lack of merit and affirming the Resolution of the OBO and the issuance of the
Demolition Order.

In the same Resolution, the Secretary of the DPWH opined:

xxxx
In condemnation proceedings of dangerous and ruinous building pursuant to the National Building
Code (NBC) and its Implementing Rules and Regulations (IRR), the authority of the Building
Official is confined to the assessment of the physical condition of the building sought to be
condemned and abated, and depending on the degree of its deterioration and dilapidation, to
issue appropriate order, taking into consideration the welfare and safety not only of its occupants,
but the public in general as well. Corollary thereto, said official is mandated under the Code, even
in the absence of a petitioner or complainant, to motu propio initiate condemnation proceedings of
reported dangerous and ruinous buildings. The inclusion thereof of the 3-storey building which
appellant claims to have been built by Ediltrudis Villena on the subject property in the
hearing/investigation of the case was within the bounds of the duties and responsibilities of the
OBO. In the said proceedings, the Building Official shall not delve on issues affecting contract
involving the property or of the building subject of the case or of lessee-lessor relationship, since
those are matters within the competence of the court to pass upon.

Appellants’ allegation that inspection of the premises was done without their participation and
[that they were] not given the chance to engage the services of an engineer deserves scant
consideration. Records revealed that appellants who actively participated in the proceedings of
the case were duly furnished with copies of appellees’ petition for condemnation and the technical
evaluation report of their (appellees) commissioned engineer, and were enjoined to submit their
counter technical report. They however failed to comply. Appellants who at the same time are
residents of the building subject of the proceedings could have easily participated or hire[d] an
engineer to represent them in the inspection conducted by the Committee on Buildings on the
premises as they were duly notified about it and of which they signified their conformity during the
hearing on September 20, 2002. x x x20

Undaunted, petitioners filed an appeal21 with the OP.

Ruling of the Office of the President

Before the OP, the petitioners asserted that the findings of the DPWH Inspectorate Team is
erroneous and that they are builders in good faith. However, the OP found no reversible error to
justify the reversal or modification of the DPWH Resolution, and thus resolved to dismiss the
appeal in a Resolution22 dated February 28, 2005.

The OP likewise subsequently denied with finality petitioners’ Motion for Reconsideration23 in an
Order24 dated April 25, 2005.

Aggrieved, petitioners filed a Petition for Review25 with the CA.

Ruling of the Court of Appeals

Before the CA, petitioners again raised the issues they advanced before the administrative
bodies, particularly the issue regarding the ownership of the lot vis-à-vis their right as builders in
good faith.

However, the CA dismissed the petition for review and affirmed the OP Resolution without
addressing the issue of ownership. Petitioners filed a Motion for Reconsideration 26 but same was
denied in a Resolution27 dated August 15, 2006 for being a mere rehash or repetition of the
issues raised in the petition.

Unwilling to concede, petitioners now come before this Court by way of Petition for Review on
Certiorari under Rule 45 of the Rules of Court.
 Issues

Petitioners raise the following issues:

A.

WHETHER x x x THE COURT OF APPEALS ERRED IN AFFIRMING THE

RESOLUTION OF THE ADMINISTRATIVE AUTHORITIES SUSTAINING THE
RECOMMENDATIONS OF THE OFFICE OF THE BUILDING OFFICIAL OF MANILA.

B.

WHETHER x x x THE OFFICE OF THE BUILDING OFFICIAL GRAVELY ERRED IN

NOT OBSERVING THE CARDINAL PRIMARY RIGHTS/DUE PROCESS
REQUIREMENTS IN THE CONDUCT OF THE HEARING AND IN THE CONTENTS OF
THE INSPECTION REPORT SUBMITTED BY THE INSPECTION TEAM INCLUDING
THE RESOLUTION OF THE OBO.

C.

WHETHER x x x [THE] OFFICE OF THE BUILDING OFFICIAL (OBO) OF MANILA

OVERSTEPPED THE BOUNDS OF ITS AUTHORITY IN NOT APPLYING ARTICLE 482
AND ARTICLES 694 TO 707 OF THE NEW CIVIL CODE IN IMPLEMENTING THE
PROVISIONS OF SECTION 215 OF THE BUILDING CODE P.D. 1096 IN THIS CASE.

D.

WHETHER x x x THE PETITIONER[S] OR THEIR PREDECESSOR IN INTEREST

[ARE]/IS A BUILDER IN GOOD FAITH OF THE 3[-]STOREY APARTMENT BUILDING
LOCATED AT THE REAR PORTION OF THE PROPERTY AND REFERRED TO AS
BLDG. 2.

E.

WHETHER x x x THE ACTION FOR EXTRAJUDICIAL ABATEMENT OF NUISANCE IS

PROPER IN THIS CASE.28

Our Ruling

The petition lacks merit.

At the outset, "[i]t bears stressing that in a petition for review on certiorari [under Rule 45 of the
Rules of Court], the scope of this Court’s judicial review of decisions of the [CA] is generally
confined only to errors of law, and questions of fact are not entertained."29 The Supreme Court is
not a trier of facts and it is not duty-bound to analyze and weigh again the evidence considered in
the proceedings below.30 More so, this Court is not duty-bound to analyze and weigh evidence
pertaining to factual issues which have not been subject of any proper proceedings below. "Well-
entrenched and settled is the rule that points of law, theories, issues and arguments not brought
to the attention of the trial court adequately and on time need not be, and ordinarily will not be,
considered by a reviewing court as they cannot be raised for the first time on appeal."31 The
determination of who owns the subject property, the authenticity of the evidence of both parties,
and whether petitioners are builders in good faith are questions of fact, the resolution of which
requires the examination of evidence that should be ventilated in a separate action brought
before a proper forum.

As correctly stated by the Secretary of the DPWH in its Resolution,32 the administrative agencies’
jurisdiction in this case is confined to the assessment of the physical condition of the building
sought to be condemned and the issuance of the appropriate order relative thereto. Issues
affecting contract involving the property or of the buildings subject of the case are not within their
competence to rule upon. Lest this Court becomes a court of first instance instead of a court of
last resort, we decline to act on matters that have not run the proper legal course.

Nevertheless, we note that petitioners’ purported right to occupy the property has already ended
two years ago when the 20-year period of the lease agreement expired in year 2009. There being
no provision in the contract, tacit or otherwise, for renewal or extension of the lease, petitioners
no longer have basis to keep hold of Building 2. Hence, the determination of whether petitioners
are builders in good faith is no longer necessary.

As to the other issues, suffice it to say that they boil down to the question of whether the issuance
of the OBO Resolution and Demolition Order was proper, and whether the CA erred when it
affirmed the Resolutions of the OP and the Secretary of the DPWH, which in turn, likewise
affirmed the said OBO Resolution.

A Building Official has the authority to order the condemnation and demolition of buildings which
are found to be in a dangerous or ruinous condition.

"[I]t is unquestionable that the Building Official has the authority to order the condemnation and
demolition of buildings which are found to be in a dangerous or ruinous condition." 33 This
authority emanates from Sections 214 and 215 of the National Building Code (Presidential
Decree [P.D.] No. 1096) which provides:

Section 214. Dangerous and Ruinous Buildings or Structures

Dangerous buildings are those which are herein declared as such or are structurally unsafe or not
provided with safe egress, or which constitute a fire hazard, or are otherwise dangerous to human
life, or which in relation to existing use, constitute a hazard to safety or health or public welfare
because of inadequate maintenance, dilapidation, obsolescence, or abandonment; or which
otherwise contribute to the pollution of the site or the community to an intolerable degree.

Section 215. Abatement of Dangerous Buildings

When any building or structure is found or declared to be dangerous or ruinous, the Building
Official shall order its repair, vacation or demolition depending upon the degree of danger to life,
health, or safety. This is without prejudice to further action that may be taken under the provisions
of Articles 482 and 694 to 707 of the Civil Code of the Philippines.

There is, therefore, no question as to the authority of the OBO to render the challenged
issuances. Here, the Building Official was authorized to issue the questioned Demolition Order in
view of his finding that the disputed structures are dangerous and ruinous buildings within the
purview of P.D. No. 1096, in relation to its Implementing Rules and Regulations. Correspondingly,
no irregularity in the process in which the resolution and demolition order were issued is evident.
As found by the CA, the records show that the OBO issued the resolution and Demolition Order
only after ocular inspections and hearings were conducted. Notably, the Inspectorate Team of the
DPWH came up with the same conclusion as the OBO when it conducted its own ocular
inspection of the premises, that is both Buildings 1 and 2 had structural, sanitary, plumbing and
electrical defects of up to 80%.34
What is more, contrary to the position of the petitioners that the provisions of the Civil Code on
abatement of nuisances should have been applied in their case, the fact that the buildings in
question could also constitute nuisances under the Civil Code does not preclude the Building
Official from issuing the assailed Demolition Order. As provided by P.D. No. 1096, the authority of
the Building Official to order the repair, vacation or demolition, as the case may be, is without
prejudice to further action that may be undertaken under the relevant provisions of the Civil
Code.35

The position taken by petitioners that the OBO is duty-bound to first order the repair of ruinous
and dangerous buildings is erroneous. Petitioners, in their Memorandum, 36 quoted Section 215 of
the National Building Code, thus:

Section 215. Abatement of Dangerous Buildings

When any building or structure is found or declared to be dangerous or ruinous, the Building
Official shall order its repair, vacation or demolition depending upon the degree of danger to life,
health, or safety. This is without prejudice to further action that may be taken under the provisions
of Articles 482 and 694 to 707 of the Civil Code of the Philippines. 37

A careful reading of the provision shows that it does not require the OBO to take actions in the
same order or sequence that Section 215 enumerates them. Instead, it authorizes the Building
Official to order either the repair, vacation, or demolition of the building depending on the
circumstances presented before it, particularly on the degree of danger to life, health and safety.
In the case at bench, the OBO, based on its assessment of the buildings, deemed it necessary to
recommend and order the demolition of the said buildings, having found them dilapidated and
deteriorated by up to 80%.

The Court of Appeals correctly affirmed the resolution issued by the Office of the President

Petitioners find error in the CA’s reliance on the report of the OBO in affirming the resolution of
the OP. Petitioners contend that the initiation of the proceedings in the OBO was calculated to
oust them from the property and to circumvent their rights as builders in good faith thereby
making the findings and issuances of the OBO unreliable. Petitioners thus beseech this Court to
ascertain facts that have already been determined by the administrative agencies involved and
thereafter reviewed and affirmed by the CA.

We find the contention without merit.

The mandate of the OBO is to act motu proprio, or upon petition validly received, on reported
dangerous and ruinous buildings and structures that pose a threat to the life, health and well-
being of the inhabitants, and the general public. Hence, the OBO, based on its findings, can still
act on the matter pursuant to such mandate, notwithstanding petitioners’ claim that respondents
initiated the proceedings to circumvent their rights under the law as builders in good faith.
Otherwise stated, respondents’ motive in initiating the proceedings which led to the issuance of
the challenged OBO Resolution and Demolition Order is immaterial as far as the OBO is
concerned, so long as it is satisfied that a building or structure is dangerous and ruinous.

Remarkably, both the DPWH and the OP found no irregularities in the manner that officials of the
OBO performed their duties and in coming up with its Resolution and Demolition Order. This
conclusion was affirmed by the CA when it resolved the petition before it.

We find no error on the part of the CA when it relied on the findings of fact of the OBO and the
other administrative bodies. As correctly stated by the CA in its Decision:
The powers granted by law, particularly the National Building Code to the Building Official
regarding demolition of buildings are executive and administrative in nature. It is a well-
recognized principle that purely administrative and discretionary functions may not be interfered
with by the courts. In general, courts have no supervising power over the proceedings and
actions of the administrative departments of the government. This is generally true with respect to
acts involving the exercise of judgment or discretion and findings of fact. The established
exception to the rule is where the issuing authority has gone beyond its statutory authority,
exercised unconstitutional powers or clearly acted arbitrarily and without regard to his duty or with
grave abuse of discretion. None of these obtains in the case at bar. (Citations omitted.) 38

"By reason of the special knowledge and expertise of said administrative agencies over matters
falling under their jurisdiction, they are in a better position to pass judgment thereon; thus, their
findings of fact in that regard are generally accorded great respect, if not finality, by the
courts."39 Such findings must be respected as long as they are supported by substantial
evidence, even if such evidence is not overwhelming or even preponderant. 40 It is not the task of
the appellate court to once again weigh the evidence submitted before and passed upon by the
administrative body and to substitute its own judgment regarding sufficiency of evidence. 41

Similarly, this Court will not disturb these factual findings absent compelling reasons to do
so.1âwphi1 This Court, in numerous occasions, has cited exceptions to the general rule that it is
not a trier of facts. None of the said exceptions is present in this case. The conclusion reached by
the administrative agencies involved after thoroughly conducting their ocular inspections and
hearings and considering all pieces of evidence presented before them, which finding was
affirmed by the CA, must now be regarded with great respect and finality by this Court.

We take this opportunity to inform petitioners that the appellate court cannot be expected to
actually perform the inspection itself for purposes of validating the findings of the administrative
bodies. Reliance on findings of fact of the lower courts or, in this case, administrative bodies,
does not mean that the appellate court does not conduct its own review. In fact, the appellate
court painstakingly studies every piece of document that comes into its hands, putting together
every piece of the puzzle to come up with the whole picture of the controversy brought before it.
That is no easy task.

WHEREFORE, the petition is DENIED. The Decision dated May 19, 2006 and the Resolution
dated August 15, 2006 of the Court of Appeals in CA-G.R. SP No. 89783 are AFFIRMED.

SO ORDERED.

9- 208 Asian Construction and Development Corporation vs. Lourdes K. Mendoza, G.R. No. 176949, June
27, 2012, Division.

In civil cases, the party with the most convincing evidence prevails.

This Petition for Review on Certiorari1 under Rule 45 of the Rules of Court assails the
Decision2 dated April 28, 2006 and the Resolution3 dated March 9, 2007 of the Court of Appeals
(CA) in CA-G.R. CV No. 69180.

Factual Antecedents

On January 6, 2000, respondent Lourdes K. Mendoza, sole proprietor of Highett Steel Fabricators
(Highett), filed before the Regional Trial Court (RTC) of Caloocan City, Branch 126, a
Complaint4 for a sum of money, docketed as Civil Case No. C-19100, against petitioner Asian
Construction and Development Corporation, a duly registered domestic corporation.

In the complaint, respondent alleged that from the period August 7, 1997 to March 4, 1998,
petitioner purchased from Highett various fabricated steel materials and supplies amounting to
₱1,206,177.00, exclusive of interests;5 that despite demand, petitioner failed and/or refused to
pay;6 and that due to the failure and/or refusal of petitioner to pay the said amount, respondent
was compelled to engage the services of counsel.7

Petitioner moved for a bill of particulars on the ground that no copies of the purchase orders and
invoices were attached to the complaint to enable petitioner to prepare a responsive pleading to
the complaint.8 The RTC, however, in an Order dated March 1, 2000, denied the
motion.9 Accordingly, petitioner filed its Answer with Counterclaim 10 denying liability for the claims
and interposing the defense of lack of cause of action. 11

To prove her case, respondent presented the testimonies of (1) Artemio Tejero (Tejero), the
salesman of Highett who confirmed the delivery of the supplies and materials to petitioner, and
(2) Arvin Cheng, the General Manager of Highett.12

The presentation of evidence for petitioner, however, was deemed waived and terminated due to
the repeated non-appearance of petitioner and its counsel.13

Ruling of the Regional Trial Court

On December 1, 2000, the RTC rendered a Decision14 in favor of respondent, to wit:

WHEREFORE, in view of the foregoing, judgment is hereby rendered ordering the [petitioner]
corporation to pay the [respondent] the following:

a. ₱1,206,177.00, representing the principal amount, which is the purchase price of the
materials and other supplies ordered by and delivered to [petitioner];

b. ₱244,288.59, representing the accrued interest as of August 31, 1999 plus xxx
additional interest to be computed at the rate of 12% per annum until the total
indebtedness is paid in full;

c. ₱150,000.00 for and as Attorney’s fees; and

d. Cost of suit.

SO ORDERED.15

Ruling of the Court of Appeals

On appeal, the CA affirmed with modification the Decision of the RTC. The decretal portion of the
CA Decision16 reads:

WHEREFORE, the assailed Decision of the RTC [Br. 126, Caloocan City] dated December 1,
2000 is hereby AFFIRMED with the MODIFICATION, in that the reckoning point for the
computation of the 1% monthly interest shall be 30 days from date of each delivery.

SO ORDERED.17
Petitioner sought reconsideration but the same was unavailing.18

Issues

Hence, this petition raising the following issues:

I. WHETHER X X X THE CHARGE INVOICES ARE ACTIONABLE DOCUMENTS.

II. WHETHER X X X THE DELIVERY OF THE ALLEGED MATERIALS [WAS] DULY

PROVEN.

III. WHETHER X X X RESPONDENT IS ENTITLED TO ATTORNEY’S FEES.19

Petitioner’s Arguments

Petitioner argues that a charge or sales invoice is not an actionable document; thus, petitioner’s
failure to deny under oath its genuineness and due execution does not constitute an admission
thereof.20 Petitioner likewise insists that respondent was not able to prove her claim as the
invoices offered as evidence were not properly authenticated by her witnesses. 21 Lastly, petitioner
claims that the CA erred in affirming the award of attorney’s fees as the RTC Decision failed to
expressly state the basis for the award thereof.22

Respondent’s Arguments

Respondent, in her Comment,23 prays for the dismissal of the petition contending that the
arguments raised by petitioner are a mere rehash of those presented and already passed upon
by the CA.24 She maintains that charge invoices are actionable documents,25 and that these were
properly identified and authenticated by witness Tejero, who testified that upon delivery of the
supplies and materials, the invoices were stamped received by petitioner’s
employee.26 Respondent contends that the award of attorney’s fees was justified as the basis for
the award was clearly established during the trial.27

Our Ruling

The petition is partly meritorious.

The charge invoices are not actionable documents

Section 7 of Rule 8 of the Rules of Court states:

SEC. 7. Action or defense based on document. – Whenever an action or defense is based upon a
written instrument or document, the substance of such instrument or document shall be set forth
in the pleading, and the original or a copy thereof shall be attached to the pleading as an exhibit,
which shall be deemed to be a part of the pleading, or said copy may with like effect be set forth
in the pleading. (Emphasis supplied.)

Based on the foregoing provision, a document is actionable when an action or defense is

grounded upon such written instrument or document. In the instant case, the Charge
Invoices28 are not actionable documents per se as these "only provide details on the alleged
transactions."29 These documents need not be attached to or stated in the complaint as these are
evidentiary in nature.30 In fact, respondent’s cause of action is not based on these documents but
on the contract of sale between the parties.
Delivery of the supplies and materials was duly proved

But although the Charge Invoices are not actionable documents, we find that these, along with
the Purchase Orders,31 are sufficient to prove that petitioner indeed ordered supplies and
materials from Highett and that these were delivered to petitioner.

Moreover, contrary to the claim of petitioner, the Charge Invoices were properly identified and
authenticated by witness Tejero who was present when the supplies and materials were delivered
to petitioner and when the invoices were stamped received by petitioner’s employee, Roel
Barandon.32

It bears stressing that in civil cases, only a preponderance of evidence or "greater weight of the
evidence" is required.33 In this case, except for a bare denial, no other evidence was presented by
petitioner to refute respondent’s claim. Thus, we agree with the CA that the evidence
preponderates in favor of respondent.

Basis for the award of Attorney’s fees must be stated in the decision

However, with respect to the award of attorney’s fees to respondent, we are constrained to
disallow the same as the rationale for the award was not stated in

the text of the RTC Decision but only in the dispositive portion.34 1âwphi1

WHEREFORE, the petition is hereby PARTLY GRANTED. The assailed Decision dated April 28,
2006 and the Resolution dated March 9, 2007 of the Court of Appeals in CA-G.R. CV No. 69180
are hereby AFFIRMED with MODIFICATION. The award of attorney’s fees in the amount of
₱150,000.00 is hereby DELETED.

SO ORDERED.

10- 232 People of the Philippines vs. Calexto D. Fundales, G.R. No. 184606, September 5, 2012 Division

On appeal is the April 18, 2008 Decision1 of the Cmn1 of Appeals (CA) in CA-C.R. CR-H.C. No.
02274, which affirmed the March 18, 2006 Decision2 or the Regional Trial Court (RTC) of
Parañaque City, Branch 259, in Criminal Case No. 03-1425. Said RTC Decision declared
appellant Calexto Duque Fundales, Jr. (appellant) guilty beyond reasonable doubt of violation of
Section 5, Article II, Republic Act (RA) No. 9165 or the Comprehensive Dangerous Drugs Act of
2002 and sentenced him to suffer the penalty of life imprisonment and to pay a fine of ₱
500,000.00

Factual Antecedents

On Decen1ber 8, 2003, appellant was charged with violations of Section 5 (illegal sale of
dangerous drugs), Section 11 (illegal possession of dangerous drugs), and Section 12 in relation
to Section 14 (illegal possession of drug paraphernalia) of Article II, RA No. 9165. The
Informations read as follows:

CRIMINAL CASE NO. 03-1425

(For violation of Section 5, Article II, RA No. 9165)
That on or about the 2nd day of December 2003, in the City of Parañaque, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized
by law, did then and there willfully, unlawfully, and feloniously sell, trade, administer, dispense,
deliver, give away to another, distribute, dispatch in transit or transport Methylamphetamine
Hydrochloride (shabu) in the total weight 0.10 gram, a dangerous drug, in violation of the above-
cited law.

CONTRARY TO LAW.3

CRIMINAL CASE NO. 03-1426

(For violation of Section 11, Article II, RA No. 9165)

That on or about the 2nd day of Dec. 2003, in the City of Parañaque, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, not being lawfully authorized to
possess did then and there willfully, unlawfully, and feloniously have in his possession and under
his control and custody Methylamphetamine Hydrochloride (shabu) weighing 0.02 gram, a
dangerous drug, in violation of the above-cited law.

CONTRARY TO LAW.4

In the charge for illegal possession of drug paraphernalia, appellant was charged together with
Ricardo Duque Fundales (Ricardo), Chulo Duque Fundales (Chulo), Jerico Cabangon Hugo
(Jerico), and Joel Manuel Gomez (Joel). The Information reads:

CRIMINAL CASE NO. 03-1427

(For violation of Section 12 in relation to Section 14, Article II, RA No. 9165)

That on or about the 2nd day of Dec. 2003, in the City of Parañaque, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating
together and all of them mutually helping and aiding one another, being in the proximate
company of five (5) persons and having gathered together, not being lawfully authorized to
possess and/or use any dangerous drug, did then and there willfully, unlawfully, and feloniously
possess and have under their control any equipment, instrument, apparatus and other
paraphernalia for or intended for smoking, consuming, administering, injecting or introducing any
dangerous drug into the body, in violation of the above-cited law.

CONTRARY TO LAW.5

During arraignment, the appellant and his co-accused pleaded not guilty.6

Thereafter, the parties agreed to terminate the pre-trial7 and set the case for trial on the merits.

Version of the Prosecution

On the evening of December 2, 2003, the Chief of the Intelligence Unit of the Station Anti-Illegal
Drug Special Task Force of Parañaque City Police, Police Superintendent Alfredo Valdez
(P/Supt. Valdez), received an information from a confidential informant about the illegal drug
trade operations conducted by the Fundales brothers. P/Supt. Valdez thus formed a buy-bust
team composed of PO1 Ariel Ilagan, PO1 Cesarie Soquiña (PO1 Soquiña), PO1 Emmanuel
Salvaloza, PO3 Regalado Adriatico and CE Ronald Tangcoy. The group then proceeded to 008
Jordan Street, Sitio Nazareth, Barangay San Isidro, Parañaque City for the buy-bust operation.
The group arrived in the vicinity of the target area at around 9:00 p.m.8 PO1 Soquiña, who was
designated as the poseur-buyer, and the informant proceeded to the house of the appellant. 9 The
team remained inside their vehicles about 20 meters away from the target area. The informant
then introduced PO1 Soquiña to the appellant as the person interested in buying shabu worth ₱
500.00.10

After PO1 Soquiña handed the ₱ 500.00 marked money to the appellant,11 the latter then went
inside his house and when he reappeared, he handed to PO1 Soquiña five plastic sachets
containing white crystalline substance.12 PO1 Soquiña then lit a cigarette which was the pre-
arranged signal to inform the rest of the team that the buy-bust operation had been
consummated.13 Hence, the team of back-up police officers proceeded to appellant's house to
apprehend him.14 Inside the house, the police officers saw Jerico, Ricardo, Chulo, and Joel who
appeared to be engaged in a pot session hence they were also arrested along with the
appellant.15

The five sachets of white crystalline substance sold by appellant, together with one sachet
obtained from the group and the drug paraphernalia, were immediately marked and inventoried.
The same were then submitted to the crime laboratory of the Philippine National Police (PNP) for
examination.16 After conducting a forensic examination, P/Insp. Richard Allan B. Mangalip
(Mangalip), Chief of the Physical Science Section and Forensic Chemical Officer of the PNP
Crime Laboratory, issued Physical Science Report No. D-1402-03S17 confirming that the
specimen submitted yielded positive for the presence of Methylamphetamine Hydrochloride.

Version of the Defense

On December 2, 2003, appellant was at home with Ricardo, Chulo, Joel, and Jerico repairing a
washing machine.18 At around 4:30 p.m., eight persons suddenly entered his house without
warning and permission.19 Aside from their weapons and handcuffs, there was no indication that
the men were police officers since they were all in civilian clothing.20 Once inside, the men
shouted, "Walang gagalaw, sumama kayo sa amin".21 They were then brought to the Coastal
Police Station and detained there for two days.22

Ruling of the Regional Trial Court

On March 18, 2006, the RTC rendered its Decision convicting appellant in Criminal Case No. 03-
1425 for illegal sale of shabu and dismissing Criminal Case No. 03-1426 for illegal possession of
dangerous drugs and Criminal Case No. 03-1427 for illegal possession of drug paraphernalia, for
insufficiency of evidence. The dispositive portion of the Decision reads:

WHEREFORE, PREMISES CONSIDERED, finding Calexto Duque Fundales, Jr.

GUILTY beyond reasonable doubt for Violation of Section 5 Article II RA 9165 he is hereby
sentenced to life imprisonment and to pay a fine of ₱ 500,000.00. The case against him under
Crim. Case No. 03-1426 for alleged [violation] of Section 11 Art. II RA 9165 is
ordered DISMISSED being considered absorbed in the commission of Violation of Section 5
under Crim. Case No. 03-1425. The case for alleged Violation of Section 12 in relation to Section
14 Art. II RA 9165 against accused Calexto Duque Fundales, Jr., Ricardo Duque Fundales, Chulo
Duque Fundales, Jerico Cabangon Hugo and Joel Manuel Gomez is also
ordered DISMISSED for insufficiency of evidence.

The Clerk of Court is directed to prepare the Mittimus for the immediate transfer of accused
Calexto Duque Fundales, Jr. to the New Bilibid Prisons, Muntinlupa City and to forward the
specimen subject of this case to the Philippine Drug Enforcement Agency for proper disposition.
The Jail Warden of this jurisdiction is hereby ordered to immediately release JERICO
CABANGON HUGO from custody unless there be some other legal reason to warrant his further
detention.

SO ORDERED.23

In finding appellant guilty of illegal sale of shabu, the RTC gave due consideration to the
testimonies of the law enforcement officers.24 It held that "no ill-motive or wrongdoing could be
ascribed to the herein police officers with respect to the buy-bust operation x x x."25 It gave full
credit and weight to the testimony of PO1 Soquiña who positively identified the appellant as the
person from whom he bought five plastic sachets of shabu during the buy-bust operation.

Ruling of the Court of Appeals

On appeal, the CA affirmed the trial court's Decision disposing as follows:

WHEREFORE, the assailed Decision dated 18 March 2006 of the Regional Trial Court of
Parañaque City, Branch 259, in Criminal Case No. 03-1425 finding appellant Calexto Fundales,
Jr. guilty beyond reasonable doubt of the crime of violation of Section 5, Article II, R.A. No. 9165
is hereby AFFIRMED.

SO ORDERED.26

Not satisfied with the Decision of the CA, the appellant is now before this Court adopting the
same issues he raised in the appellate court, viz:

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT OF THE

CRIME CHARGED BEYOND REASONABLE DOUBT.

II

THE TRIAL COURT GRAVELY ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE
EVIDENCE OF THE PROSECUTION AND DISREGARDING THE DEFENSE OF THE
ACCUSED-APPELLANT.

III

THE TRIAL COURT GRAVELY ERRED IN FINDING THE EXISTENCE OF THE BUY-BUST
OPERATION.

IV

THE TRIAL COURT GRAVELY ERRED IN UPHOLDING THE PRESUMPTION OF

REGULARITY IN THE PERFORMANCE OF OFFICIAL DUTY IN FAVOR OF THE ARRESTING
OFFICERS.27

Issue

The main issue for resolution is whether the appellant is guilty beyond reasonable doubt of
violation of Section 5, Article II of RA No. 9165.
 Our Ruling

The appeal lacks merit.

"Conviction is proper in prosecutions involving illegal sale of dangerous drugs if the following
elements are present: (1) the identity of the buyer and the seller, the object, and the
consideration; and (2) the delivery of the thing sold and the payment thereto."28

This Court is convinced that the prosecution sufficiently discharged the burden of establishing the
elements of illegal sale of dangerous drugs and in proving the guilt of the appellant beyond
reasonable doubt.

The identity of the buyer and the seller were both established by the prosecution, appellant being
the seller and PO1 Soquiña as the poseur-buyer. The object of the transaction was the five
sachets of Methylamphetamine Hydrochloride or shabu and the consideration was the ₱ 500.00
marked money. Both such object and consideration have also been sufficiently established by
testimonial and documentary evidence presented by the prosecution. As to the delivery of the
thing sold and the payment therefor, PO1 Soquiña caught appellant in flagrante delicto selling
and delivering the prohibited substance during a buy-bust operation. He also personally handed
to appellant the marked money as payment for the same. Clearly, the above-mentioned elements
are present in this case.

Appellant insists that the prosecution failed to establish his guilt beyond reasonable doubt. He
argues that the prosecution's failure to present the forensic chemist during trial was fatal to its
cause. According to the appellant, the laboratory report has no probative value since the forensic
chemist did not attest to the report's authenticity.29 In view of this, he points out that the
prosecution failed to establish the corpus delicti.

This Court is not persuaded. We have already ruled in a number of cases that non-presentation
of the forensic chemist in illegal drugs cases is an insufficient cause for acquittal.30

In People v. Quebral,31 we held thus:

The accused-appellants also point out that, since the chemist who examined the seized
substance did not testify in court, the prosecution was unable to establish the indispensable
element of corpus delicti. But this claim is unmeritorious. This Court has held that the non-
presentation of the forensic chemist in illegal drug cases is an insufficient cause for acquittal. The
corpus delicti in dangerous drugs cases constitutes the dangerous drug itself. This means that
proof beyond doubt of the identity of the prohibited drug is essential.

Besides, corpus delicti has nothing to do with the testimony of the laboratory analyst. In fact, this
Court has ruled that the report of an official forensic chemist regarding a recovered prohibited
drug enjoys the presumption of regularity in its preparation. Corollarily, under Section 44 of Rule
130, Revised Rules of Court, entries in official records made in the performance of official duty
are prima facie evidence of the facts they state. Therefore, the report of Forensic Chemical
Officer Sta. Maria that the five plastic sachets PO3 Galvez gave to her for examination contained
shabu is conclusive in the absence of evidence proving the contrary. x x x (Citations omitted.)

Thus, it is of no moment that Forensic Chemical Officer Mangalip was not presented as witness.
The non-presentation as witnesses of other persons who had custody of the illegal drugs is not a
crucial point against the prosecution.32 "It is the prosecution which has the discretion as to how to
present its case and it has the right to choose whom it wishes to present as witnesses." 33 What is
important is that the integrity and evidentiary value of the seized drugs are properly preserved as
it had been so in this case.
Besides, it has not escaped our attention that during the proceedings before the trial court, both
the prosecution and the defense agreed to dispense with the testimony of the forensic chemist.
During the trial held on August 19, 2004, the parties stipulated as regards the probative value of
the documents and physical evidence marked as Exhibits "A" to "C."34 Exhibit "A" pertained to the
letter request for laboratory examination of the specimens. Exhibit "B" was the specimen subject
to laboratory examination; while Exhibit "C" was the Physical Science Report No. D-1402-03S
submitted by the forensic chemist. The parties likewise stipulated that it was Forensic Chemical
Officer Mangalip who conducted a qualitative examination on the specimens.

Appellant next claims that the pieces of evidence adduced by the prosecution were obtained in
violation of Sections 21 and 86(a) of RA No. 9165 regarding the proper custody and disposition of
seized narcotic substances and dangerous drugs. He also avers that the prosecution failed to
prove that the police officers coordinated and reported the buy-bust operation with the Philippine
Drug Enforcement Agency (PDEA).

The provisions of RA No. 9165 cited by the appellant are meant to safeguard the accused in
drugs cases against abuses of law enforcement officers. They provide for the proper handling of
confiscated dangerous drugs in order to prevent malicious imputations of guilt upon an
unsuspecting accused.

However, as correctly ruled by the CA, this Court has already held in People v. Sta. Maria35 that:

The failure of the law enforcers to comply strictly with Section 21 was not fatal. It did not render
the appellant's arrest illegal nor the evidence adduced against him inadmissible.

The law excuses non-compliance under justifiable grounds. However, whatever justifiable
grounds may excuse the police officers involved in the buy-bust operation in this case from
complying with Section 21 will remain unknown, because appellant did not question during trial
the safekeeping of the items seized from him. Indeed, the police officers' alleged violations of
Sections 21 and 86 of Republic Act No. 9165 were not raised before the trial court but were
instead raised for the first time on appeal. In no instance did appellant least intimate at the trial
court that there were lapses in the safekeeping of seized items that affected their integrity and
evidentiary value. Objection to evidence cannot be raised for the first time on appeal; when a
party desires the court to reject the evidence offered, he must so state in the form of objection.
Without such objection he cannot raise the question for the first time on appeal.

As in the above-quoted case, the appellant here did not question during trial the alleged improper
handling of the items seized from him, it being the proper time for him to raise such objections.
We cannot thus accept such belated argument of the appellant especially so when the integrity of
the items seized from him was shown to have been preserved. Evidence on record shows that
the seized drugs were inventoried. "Slight infractions or nominal deviations by the police from the
prescribed method of handling the corpus delicti should not exculpate an otherwise guilty
defendant."36

Appellant further claims that the police officers failed to coordinate and report the buy-bust
operation with the PDEA. To appellant, this tainted the presumption of regularity in the
performance of duty of the police officers. He likewise posits that the arresting officers had
insufficient authority to conduct the said operation.

Section 8637 of RA No. 9165 deals with inter-agency relations of the PNP and other law
enforcement agencies with the PDEA. It is an administrative provision designating the PDEA as
the lead agency in dangerous drugs cases. We have already ruled that nothing in RA No. 9165
suggests that it is the intention of the legislature to make an arrest in drugs cases illegal if made
without the participation of the PDEA.38 In the implementing rules and regulations of RA No. 9165,
Section 86(a) clearly states:

(a) Relationship/Coordination between the PDEA and Other Agencies. - The PDEA shall be the
lead agency in the enforcement of the Act, while the PNP, the NBI and other law enforcement
agencies shall continue to conduct anti-drug operations in support of the PDEA xxx Provided,
finally, that nothing in this IRR shall deprive the PNP, the NBI, other law enforcement personnel
and the personnel of the Armed Forces of the Philippines (AFP) from effecting lawful arrests and
seizures in consonance with the provisions of Section 5, Rule 113 of the Rules of Court.
(Emphasis supplied)

Suffice it to state that in this case, the danger of abuse that the provision seeks to prevent is not
present. We therefore see no reason why the non-participation of the PDEA would render the
arrest illegal and the evidence obtained therein inadmissible considering that the integrity and
evidentiary value of the seized prohibited substances and dangerous drugs have been properly
preserved.

Appellant further asserts that no buy-bust operation took place contrary to the testimony of the
arresting officers.1âwphi1 He claims that on the day of the alleged buy-bust operation, he was at
home repairing a washing machine.

Appellant's contention does not deserve serious consideration. It is well-settled that the
testimonies of the police officers in dangerous drugs cases carry with it the presumption of
regularity in the performance of official functions. "Law enforcers are presumed to have
performed their duties regularly in the absence of evidence to the contrary." 39 In this case, PO1
Soquiña narrated in a straightforward manner the circumstances leading to the sale of shabu. He
positively and categorically identified appellant as the seller of the drugs. Absent any clear
showing that the arresting officers had ill motive to falsely testify against the appellant, their
testimonies must be respected and the presumption of regularity in the performance of their
duties must be upheld. Appellant himself testified that he never had any personal encounter with
the police prior to his arrest,40 thus negating any ill-motive on the part of the police officers.

The appellant, on the other hand, offers mere denial as his defense. He claims that he was
merely fixing a washing machine at the time of the arrest and that the alleged buy-bust operation
was fictitious. However, other than his own self-serving testimony, appellant has not offered any
evidence to support this claim. We have held that "a bare denial is an inherently weak defense x
x x."41 Appellant's denial is unsubstantiated by any credible and convincing evidence. Between
the positive and categorical testimonies of the arresting officers on one hand, and the
unsubstantiated denial of the appellant on the other, we are inclined to uphold the former.

All told, this Court thus sustains the RTC's conviction of the appellant for violation of Section 5,
Article II of RA No. 9165, as affirmed by the CA.

WHEREFORE, the appeal is DENIED. The April 18, 2008 Decision of the Court of Appeals in CA-
G.R. CR-H.C. No. 02274 is AFFIRMED.

SO ORDERED.

9- 256 G.R. No. 180919. January 9, 2013, People of the Philippines Vs. Simpresueta M. Seraspe, accused-
appelant (Second Division).
Appellant Simpresueta M. Seraspe (appellant) assails the July 25, 2007 Decision1 of the Court of
Appeals (CA) in CA-G.R. CR-H.C. No. 02045 which affirmed her conviction for illegal sale of
dangerous drugs by the Regional Trial Court (RTC) of Las Piñas City, Branch 275 in Criminal
Case No. 99-1127.2

Factual Antecedents

Appellant, together with her mother, Primitiva M. Seraspe (Seraspe), and Melba L. Espiritu
(Espiritu) were charged with violation of Section 15, Article II of Republic Act (R.A.) No. 6425 (The
Dangerous Drugs Act of 1972), as amended, in an Amended Information,3 the accusatory portion
of which reads as follows:

That on or about June 1, 1999 in Las Piñas City and within the jurisdiction of this Honorable
Court, the above-named accused, conspiring, conniving, confederating, and helping one another,
did, then and there willfully, unlawfully, feloniously and knowingly sell, dispense, transport, deal
in, administer, deliver, negotiate and distribute 983.5 grams of methamphetamine hydrochloride
(shabu), a regulated drug, to Ms. Criselda Manila, who acted as poseur buyer, said accused,
selling, dispensing, transporting, administering and distributing the aforementioned regulated drug
without any license, permit or authority from the government to do so, in consideration of an
amount of money which accused demanded and received from the poseur buyer.

CONTRARY TO LAW.4

The three entered separate pleas of "not guilty" to the crime charged during their arraignment on
December 1, 1999.5 Thereafter, trial ensued.

Version of the Prosecution

The key witnesses presented by the prosecution were Police Chief Inspector Ricardo Dandan
(P/Chief Insp. Dandan), a member of the now defunct Presidential Anti-Organized Crime Task
Force (PAOCTF), and Criselda Manila, a.k.a., Carla (Carla), liaison officer of PAOCTF. From their
testimonies,6 the following facts emerge:

On May 15, 1999, P/Chief Insp. Dandan received a telephone call from a confidential informant
who told him about the drug trafficking activities of Espiritu in Cainta and in the Cities of Las
Piñas, Muntinlupa, Taguig and Parañaque. He immediately reported this information to Senior
Police Superintendent Cesar Mancao, who, in turn, instructed him to create a police team to
conduct an operation relative thereto. P/Chief Insp. Dandan thus formed Team Golf composed of
SPO4 Bahadi (also referred to as SPO4 Bajade), SPO4 Tuanggang, SPO2 Roberto O. Agbalog,
PO3 Osmundo B. Cariño (PO3 Cariño), SPO1 Leopoldo Platilla, SPO2 Laroga (also referred to
as SPO2 Laruga), PO3 Olaya and Carla. Carla was to act as the poseur-buyer and PO3 Cariño
as her husband.

On the same day, Team Golf proceeded to SM Southmall in Las Piñas City and met the
confidential informant. Thereafter Carla, PO3 Cariño and the civilian informant headed to
Espiritu’s house and presented themselves to Espiritu. After the introductions, negotiation for the
sale of shabu followed. Carla ordered two kilos of shabu for a discounted price of ₱750,000.00.
Espiritu, in turn, took Carla’s cellphone number and promised to call once the shabu becomes
available.

On May 27, 1999, Espiritu called Carla and asked the latter to wait. She again called two days
later and arranged for a meeting at noon of the next day in SM Bacoor. Hence, on May 30, 1999,
Carla proceeded to the agreed place while Espiritu arrived thereat together with appellant.
Espiritu directed appellant to give a sample of the shabu to Carla inside the rest room so the latter
could examine it. Appellant obliged. After they parted ways, Carla gave the sample to P/Chief
Insp. Dandan, who readily knew that the same was shabu because of his familiarity with the drug.

At around 7:00 p.m. of the same day, Espiritu again called Carla and told her that she already has
two kilos of shabu but would deliver only one kilo. She would deliver the rest after receipt of the
payment for the first. The two then agreed to meet in the food court of RFC Manuela (RFC Food
Court), Las Piñas City for the delivery of the drugs.

Upon learning this, P/Chief Insp. Dandan immediately gathered the buy-bust team, gave them
instructions and prepared four marked 500 peso bills and boodle money. The team then repaired
to the meeting place on June 1, 1999. At about 3:00 p.m., Carla and PO3 Cariño occupied one of
the tables in the RFC Food Court while the rest of the team positioned themselves nearby.
Espiritu and appellant arrived at around 5:00 p.m. After ascertaining from Carla if she brought the
money, Espiritu ordered appellant to get the shabu. Appellant left and returned 30 minutes later
with her mother, Seraspe, who was then carrying a bag. Appellant took the said bag and handed
it to Espiritu, who, together with Carla, proceeded to the restroom to examine the contents
thereof. When Carla emerged from the restroom, she made the pre-arranged signal by scratching
her head. Whereupon, the buy-bust team arrested Espiritu, Seraspe and appellant. The marked
money was recovered from Espiritu while the plastic bag containing the substance subject of the
buy-bust operation was marked by PO3 Cariño with the Visayan word "tigulang." Upon laboratory
examination, the seized specimen weighing 983.5 grams was found positive for
methamphetamine hydrochloride or shabu.7

Version of the Defense

Espiritu, Seraspe and appellant claimed that they were merely induced by the PAOCTF
operatives to sell the dangerous drug. Their testimonies 8 revealed the following circumstances:

Espiritu first met Carla when the latter went to her house together with the civilian informant in the
second week of April 1999. Carla wanted to talk to Espiritu’s husband, who is a lawyer and a
casino financier, in the hope of getting his help in purchasing shabu from his Chinese clients.
When Espiritu told Carla that her husband does not want to get involved in that kind of business,
Carla instead sought her help. Carla promised to pay ₱750,00.00 for a kilo of shabu. Fearing that
her husband would get mad about it, Espiritu declined the offer.

After a couple of days, Carla returned to Espiritu’s house, this time with PO3 Cariño whom she
introduced as her husband. Again, they sought her assistance in purchasing shabu and showed
her an attaché case containing ₱1.5 million. Espiritu again declined. But as Carla and PO3 Cariño
returned four more times with the same request and showing her the money each time, Espiritu
finally told them that she would see what she can do. At that time, she was in need of money for
the tuition fees of her grandchildren and the medicines of her son. Espiritu thus introduced Carla
and PO3 Cariño to appellant, an employee of her husband in the casino.

Appellant claimed that during her first meeting with Carla and PO3 Cariño, the two asked her to
help them look for shabu and showed her money in an attaché case. She initially refused but
changed her mind when the couple kept on returning to her place to convince her. Thinking that
she would be able to pay her debts and provide for the needs of her children with the money
being offered by Carla and PO3 Cariño, she acceded and told them that she would try to look for
shabu.

On May 30, 1999, appellant and Espiritu went to the house of a certain Aida Go (Aida) to get the
shabu. Appellant then kept the shabu in her house as instructed by Espiritu. On June 1, 1999,
she and Espiritu went to RFC Food Court to meet with Carla and PO3 Cariño. Appellant handed
the shabu to Espiritu, who entered the restroom with Carla. However, when they came out, they
were already surrounded by policemen and were arrested.

Seraspe, for her part, claimed that she had no knowledge of the transaction as she just
accompanied her daughter, appellant, to the RFC Food Court.

Ruling of the Regional Trial Court

In its Decision9 of July 29, 2002, the trial court found that all the accused conspired to deliver and
sell shabu10 And contrary to accused’s claim that they were merely instigated by the authorities to
commit the crime charged, it found that their arrest was the result of a valid entrapment
operation.11 It thus disposed:

WHEREFORE, judgment is hereby rendered finding accused MELBA L. ESPIRITU, PRIMITIVA

M. SERASPE and SIMPRESUETA M. SERASPE guilty beyond reasonable doubt and sentenced
to suffer each the penalty of Reclusion Perpetua and pay a fine of ₱500,000.00 and costs.

SO ORDERED.12

Espiritu, Seraspe and appellant filed a Notice of Appeal,13 which was given due course by the trial
court in an Order dated August 5, 2002.14 Pursuant thereto, the records of the case were elevated
to this Court.

However, on October 15, 2004, Espiritu filed a Manifestation with Motion to Withdraw
Appeal15 because she intends to apply for executive clemency in view of her old age and illness.
The Court granted the motion in a Resolution16dated December 1, 2004 and the case was
declared closed and terminated with respect to her. An Entry of Judgment17 relative thereto was
accordingly issued and entered in the Book of Entries of Judgment.

In the Court’s Resolution18 dated November 9, 2005, the case was transferred to the CA for
appropriate action and disposition in view of the ruling in People v. Mateo19 allowing an
intermediate review by the said court of cases where the penalty imposed is death, life
imprisonment or reclusion perpetua, as in this case.

Subsequently, Seraspe likewise filed a Manifestation with Motion to Withdraw Appeal 20 since she
also intends to apply for executive clemency in view of her old age. The CA granted the same in a
Resolution21 dated August 7, 2006 and the case was likewise declared closed and terminated
insofar as she was concerned. A Partial Entry of Judgment22 was likewise issued and entered in
the Book of Entries of Judgment on even date.

Thus, appellant was the only one left pursuing the appeal.

Ruling of the Court of Appeals

In a Decision23 dated July 25, 2007, the CA upheld the RTC’s finding of a valid entrapment24 and
accorded respect and finality upon the trial court’s assessment of the credibility of
witnesses.25 The dispositive portion of its Decision reads:

WHEREFORE, the Decision appealed from is AFFIRMED.

SO ORDERED.26

Hence, this appeal.

Assignment of Errors

The errors raised in the Accused-Appellant’s Brief27 and Supplemental Brief28 are as follows:

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT OF VIOLATION OF

SECTION 15, ARTICLE II, IN RELATION TO SECTION 21, ARTICLE IV, AS AMENDED BY R.A.
7659, WHEN THE LATTER’S GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.29

THE COURT OF APPEALS GRAVELY ERRED IN CONVICTING THE ACCUSED-APPELLANT

DESPITE THE LAME EVIDENCE OF THE PROSECUTION TO WARRANT A FINDING OF
CONSPIRACY BEYOND REASONABLE DOUBT.30

Our Ruling

The petition has no merit.

The two essential elements of the crime

of illegal sale of dangerous drugs were

duly established by the prosecution;

appellant conspired with her co-accused

in the commission of the crime charged.

Appellant faults the trial court in convicting her of the crime of illegal sale of dangerous drugs.

In the prosecution of illegal sale of dangerous drugs, the two essential elements are: "(1) the
identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the
thing sold and the payment therefor."31Hence, evidence that establishes both elements by the
required quantum of proof, i.e., guilt beyond reasonable doubt,32 must be presented. Here, the
said elements were duly proved by the prosecution. Carla and P/Chief Insp. Dandan positively
identified appellant and her co-accused as the sellers of the contraband who sold the same in
exchange for the marked money. The item was seized, marked and upon examination was
identified as shabu, a dangerous drug. The same was subsequently presented in evidence.
Moreover, Carla provided a detailed testimony as to the delivery and sale of shabu, viz:

Q What time did you reach the area?

A About 3:00 in the afternoon.

Q After reaching the area at Manuela Food Court, what happened next?

A And then the group positioned themselves inside the Food Court.

Q How about x x x you and Cariño?

A And we positioned ourselves at the next table.

Q What happened after you positioned yourselves at the table?

A And then Melba Espiritu and Aileen Seraspe arrived at around 5:00 in the afternoon.

Q And what happened after Melba Espiritu and Aileen Seraspe arrived?

A She asked me if I have already the money.

Q What was your answer if any?

A I answered yes.

Q What happened next after you answered yes that you have money?

A And she asked Aileen Seraspe to go out.

Q For what reason?

A To get the shabu.

Q So what happened after Melba Espiritu directed Aileen to go out and get the shabu?

A When Aileen returned she was with her mother Primitiva Seraspe.

Q And what happened after Aileen came back together with her mother Primitiva Seraspe?

A And Primitiva Seraspe is carrying a gray envelope clutch bag which looks like an envelope.

Q And what happened after Aileen came back together with Primitiva Seraspe who was then
carrying a gray clutch type bag?

A And then she left her mother in one of the tables and she took a gray bag and opened it and
took another plastic pink bag containing shabu and gave it to Melba.

Q So what happened after Aileen Seraspe took off the pink bag inside the gray bag and hand[ed]
it over to Melba Espiritu?

A And then I was invited by Melba Espiritu to the comfort room.

Q What happened after she [went with you inside] the comfort room?

A She showed me that sir and asked me to look at it.

Q She showed you what?

A Shabu sir.

Q What happened next?

A After looking inside the plastic bag containing shabu, I gave her the money.

Q And how did you [give] her the money?

A After I gave her the money, I went out of the C.R.

Q What happened to the shabu?

A It is still in my possession sir.

Q And what happened after you went out of the CR carrying the shabu?

A After getting out of the CR I made a signal.

Q And what was the signal?

A I scratched my hair using my right hand.

Q At this juncture Your Honor witness is demonstrating by scratching her hair. What happened
next after you scratched your hair?

A And they arrested Melba carrying the money.33

The Court has no reason to doubt the above testimony of Carla. Aside from the fundamental rule
that findings of the trial court regarding the credibility of prosecution witnesses are accorded
respect considering that it is the trial court that had the opportunity to observe their conduct and
demeanor,34 the Court notes that appellant herself corroborated the prosecution’s account of the
crime, viz.:

Q How many kilos did you sell to the buyer, if you sold anything?

A We first brought one (1) kilo.

Q When you say "we", you are referring to you and to Melba Espiritu, is that correct?

A Yes, Sir.

xxxx

Q And what happened while at RFC?

A While we were in RFC, I handed the shabu to Melba Espiritu and then they entered the CR and
when they went out of the CR there were already many policemen.35

Moreover, appellant questions the lower courts’ finding of conspiracy between her and her co-
accused. She claims that she merely accompanied Espiritu in going to the RFC Food Court and
had nothing to do with the transaction. As a matter of fact, the shabu was not even found in or
recovered from her possession. It just so happened that she was in the area during the delivery of
the drugs.

The Court is not persuaded.

There is conspiracy if two or more persons agree to commit a felony and decide to commit
it.36 "Conspiracy must be proven on the same quantum of evidence as the felony subject of the
agreement of the parties. Conspiracy may be proved by direct or circumstantial evidence
consisting of acts, words, or conduct of the alleged conspirators before, during and after the
commission of the felony to achieve a common design or purpose."37

The existence of conspiracy in this case was clearly established not only by the prosecution’s
evidence but also by appellant’s very own testimony, viz:

Q So, it was your own decision to go with Melba Espiritu to get that shabu from Aida Go?

A Yes, sir.

Q And in going there, your intention was to earn money?

A Yes, sir.

Q And who entered into this transaction of getting shabu from Aida Go, was it you or Melba
Espiritu?

A The two (2) of them. They were the ones who made the deal.

Q And what was your participation while Melba Espiritu and Aida Go were transacting about that
shabu?

A My only participation would only be to carry that shabu from where we will get it up to the buyer.

Q And did you pay any amount of money to Aida Go in order to get that two (2) kilos of shabu?

A No, sir. It was given to us on a consignment basis.

Q And do you know the meaning of "consignment basis"?

A It will be paid after the deal.

Q And you mentioned that your participation would be to bring that shabu from where?

A Get it from Baclaran then go to RFC.

FISCAL VILLANUEVA:

Q Where in Baclaran?

A I don’t know the exact address but I can go there. I mean, I will be able to go there. It is near 7-
Eleven.

Q Along Roxas Boulevard or Quirino Avenue?

A You can pass through Quirino Avenue and Baclaran.

Q And when did you get that shabu in Baclaran?

A I think it was at the end of May. End of May.

Q And from whom did you get the shabu in Baclaran?

A From the house of Aida Go.

Q And who handed the shabu to you?

A It was not handed to me only. They only instructed me to carry it. It was placed in a bag.

Q So, how were you able to know that that box contains that shabu if nobody handed it to you?

A Because I know that we will be getting shabu. So, when Melba Espiritu told me to carry it, that
box, I was thinking that it was already the shabu.

Q So, Melba Espiritu was with you when you went to Baclaran when you picked up that shabu?

A Yes, sir.

Q So, the two of you were together in picking [up] that shabu?

A Yes, sir.

Q When was that?

A May 30.

Q And what happened after you [picked up] that shabu in Baclaran together with Melba Espiritu?

A She instructed me to keep first the shabu in my house.

Q So, it was Melba Espiritu who was dealing … who was telling you what to do?

A Yes, sir.

Q So, what happened after you kept that shabu in your house?

A I don’t know what happened because it was Melba and the PAOCTFwho were the ones
dealing.

Q So, you voluntarily and knowingly carried that shabu for Melba Espiritu?

A Yes. sir.38

"An accepted badge of conspiracy is when the accused by their acts aimed at the same object,
one performing one part and another performing another so as to complete it with a view to the
attainment of the same object, and their acts though apparently independent were in fact
concerted and cooperative, indicating closeness of personal association, concerted action and
concurrence of sentiments."39 As can be gleaned from appellant’s above-quoted testimony as
well as from the testimony of Carla as to what transpired during the actual buy-bust
operation,appellant acted in common concert with her co-accused in the illegal sale of shabu.
She cannot therefore isolate her act of merely accompanying Espiritu to the RFC Food Court or
carrying the shabu since in conspiracy the act of one is the act of all. 40 "To be a conspirator, one
need not participate in every detail of the execution; he need not even take part in every act or
need not even know the exact part to be performed by the others in the execution of the
conspiracy."41

Appellant’s defense of instigation is unworthy of belief.

Appellant raises the defense of instigation to gain her acquittal. She argues that the government,
through the PAOCTF operatives, induced her to commit the offense when they repeatedly
approached and asked her to sell them shabu.

The Court is unswayed.

"Instigation means luring the accused into a crime that he, otherwise, had no intention to commit,
in order to prosecute him."42 It differs from entrapment which is the employment of ways and
means in order to trap or capture a criminal.43 In instigation, the criminal intent to commit an
offense originates from the inducer and not from the accused who had no intention to commit and
would not have committed it were it not for the prodding of the inducer.44 In entrapment, the
criminal intent or design originates from the accused and the law enforcers merely facilitate the
apprehension of the criminal by using ruses and schemes. 45 Instigation results in the acquittal of
the accused, while entrapment may lead to prosecution and conviction. 46

Here, the evidence clearly established that the police operatives employed entrapment, not
instigation, to capture appellant and her cohorts in the act of selling shabu. It must be recalled
that it was only upon receipt of a report of the drug trafficking activities of Espiritu from the
confidential informant that a buy-bust team was formed and negotiations for the sale of shabu
were made. Also, appellant testified that she agreed to the transaction of her own free will when
she saw the same as an opportunity to earn money. Notably too, appellant was able to quickly
produce a sample. This confirms that she had a ready supply of the illegal drugs. Clearly, she
was never forced, coerced or induced through incessant entreaties to source the prohibited drug
for Carla and PO3 Cariño and this she even categorically admitted during her testimony. 47

Moreover, a police officer’s act of soliciting drugs from appellant during the buy-bust operation, or
what is known as the "decoy solicitation," is not prohibited by law and does not invalidate the buy-
bust operation.48 In People v. Legaspi,49 this Court pronounced that in a prosecution for sale of
illicit drugs, any of the following will not exculpate the accused: "(1) that facilities for the
commission of the crime were intentionally placed in his way; or (2) that the criminal act was done
at the solicitation of the decoy or poseur-buyer seeking to expose his criminal act; or (3) that the
police authorities feigning complicity in the act were present and apparently assisted in its
commission."50Hence, even assuming that the PAOCTF operatives repeatedly asked her to sell
them shabu, appellant’s defense of instigation will not prosper. This is "especially true in that
class of cases where the offense is the kind that is habitually committed, and the solicitation
merely furnished evidence of a course of conduct. Mere deception by the police officer will not
shield the perpetrator, if the offense was committed by him free from the influence or instigation of
the police officer."51

All told, we find no reason to disturb the findings of the trial court as affirmed by the appellate
court, and thus sustain the conviction of appellant for illegal sale of dangerous drugs.

The Penalty

Under Section 15, Article III, in relation to Section 20, Article IV, of the Dangerous Drugs Act of
1972, as amended by R.A. No. 7659, the unauthorized sale of 200 grams or more of shabu or
methamphetamine hydrochloride is punishable by reclusion perpetua to death and a fine ranging
from five hundred thousand pesos to ten million pesos. 52
The total weight of the shabu confiscated in this case is 983.5 grams.1âwphi1 Hence, the proper
penalty should be reclusion perpetua to death. But since the penalty of reclusion perpetua to
death consists of two indivisible penalties, appellant was correctly meted the lesser penalty of
reclusion perpetua, conformably with Article 63(2) of the Revised Penal Code which provides that
when there are no mitigating or aggravating circumstances in the commission of the deed, the
lesser penalty shall be applied. Considering the quantity of shabu sold, we likewise find
reasonable the fine of ₱500,000.00 imposed by the trial court.53

WHEREFORE, the assailed Decision dated July 25, 2007 of the Court of Appeals in CA-G.R. CR-
H.C. No. 02045 is AFFIRMED.

SO ORDERED.

280 7. G.R. No. 180843. April 17, 2013, Apolonio Garcia, in substituion of his deceased mother, Modesta
Garcia, and Cristina Salamat Vs. Dominga Robles Vda de Caparas (Second Division).

Under the Dead Man's Statute Rule, "if one party to the alleged transaction is precluded from
testifying by death, insanity, or other mental disabilities, the other party is not entitled to the undue
advantage of giving his own uncontradicted and unexplained account of the transaction."1 Thus,
the alleged admission of the deceased Pedro Caparas (Pedro) that he entered into a sharing of
leasehold rights with the petitioners cannot be used as evidence against the herein respondent as
the latter would be unable to contradict or disprove the same.

This Petition for Review on Certiorari2 seeks to reverse and set aside the August 31, 2007
Decision3 of the Court of Appeals (CA) in CA-G.R. SP No. 90403;4 as well as its December 13,
2007 Resolution5denying petitioners' Motion for Reconsideration.

Factual Antecedents

Flora Makapugay (Makapugay) is the owner of a 2.5-hectare farm in Barangay Lugam, Malolos,
Bulacan (the land) covered by Transfer Certificate of Title No. (TCT) RT-65932 (T-25198)6 and
being tilled by Eugenio Caparas (Eugenio) as agricultural lessee under a leasehold agreement.
Makapugay passed away and was succeeded by her nephews and niece, namely Amanda dela
Paz-Perlas (Amanda), Justo dela Paz (Justo) and Augusto dela Paz (Augusto). On the other
hand, Eugenio’s children – Modesta Garcia (Garcia), Cristina Salamat (Salamat) and Pedro –
succeeded him.

Before she passed away, Makapugay appointed Amanda as her attorney-in-fact. After Eugenio
died, or in 1974, Amanda and Pedro entered into an agreement entitled "Kasunduan sa
Buwisan",7 followed by an April 19, 1979 Agricultural Leasehold Contract,8 covering the land. In
said agreements, Pedro was installed and recognized as the lone agricultural lessee and
cultivator of the land.

Pedro passed away in 1984, and his wife, herein respondent Dominga Robles Vda. de Caparas
(Dominga), took over as agricultural lessee.

On July 10, 1996, the landowners Amanda, Justo and Augusto, on the one hand, and Pedro’s
sisters Garcia and Salamat on the other, entered into a "Kasunduan sa Buwisan ng
Lupa"9 whereby Garcia and Salamat were acknowledged as Pedro’s co-lessees.
On October 24, 1996, herein petitioners Garcia and Salamat filed a Complaint10 for nullification of
leasehold and restoration of rights as agricultural lessees against Pedro’s heirs, represented by
his surviving spouse and herein respondent Dominga. Before the office of the Provincial Agrarian
Reform Adjudicator (PARAD) of Bulacan, the case was docketed as Department of Agrarian
Reform Adjudication Board (DARAB) Case No. R-03-02-3520-96.

In their Complaint, Garcia and Salamat claimed that when their father Eugenio died, they entered
into an agreement with their brother Pedro that they would alternately farm the land on a "per-
season basis"; that the landowner Makapugay knew of this agreement; that when Makapugay
passed away, Pedro reneged on their agreement and cultivated the land all by himself,
deliberately excluding them and misrepresenting to Amanda that he is Eugenio’s sole heir; that as
a result, Amanda was deceived into installing him as sole agricultural lessee in their 1979
Agricultural Leasehold Contract; that when Amanda learned of Pedro’s misrepresentations, she
executed on July 10, 1996 an Affidavit11 stating among others that Pedro assured her that he
would not deprive Garcia and Salamat of their "cultivatory rights"; that in order to correct matters,
Amanda, Justo and Augusto executed in their favor the 1996 "Kasunduan sa Buwisan ng Lupa",
recognizing them as Pedro’s co-lessees; that when Pedro passed away, Dominga took over the
land and, despite demands, continued to deprive them of their rights as co-lessees; that efforts to
settle their controversy proved futile, prompting the Barangay Agrarian Reform Committee to
issue the proper certification authorizing the filing of a case; and that they suffered damages as a
consequence. Petitioners prayed that the 1979 Agricultural Leasehold Contract between Pedro
and Amanda be nullified; that they be recognized as co-lessees and allowed to cultivate the land
on an alternate basis as originally agreed; and that they be awarded ₱50,000.00 attorney’s fees
and costs of litigation.

In her Answer,12 herein respondent Dominga claimed that when her father-in-law Eugenio died,
only her husband Pedro succeeded and cultivated the land, and that petitioners never assisted
him in farming the land; that Pedro is the sole agricultural lessee of the land; that Amanda’s July
10, 1996 Affidavit and "Kasunduan sa Buwisan ng Lupa" of even date between her and the
petitioners are self-serving and violate the existing 1979 Agricultural Leasehold Contract; that
under Section 3813 of Republic Act No. 384414 (RA 3844), petitioners’ cause of action has
prescribed. Dominga further claimed that Pedro has been in possession of the land even while
Eugenio lived; that petitioners have never cultivated nor possessed the land even for a single
cropping; that Pedro has been the one paying the lease rentals as evidenced by receipts; that
when Pedro died in 1984, she succeeded in his rights as lessee by operation of law, and that she
had been remitting lease rentals to the landowners since 1985; and that petitioners had no right
to institute themselves as her co-lessees. She prayed that the Complaint be dismissed; that the
July 10, 1996 "Kasunduan sa Buwisan ng Lupa" be nullified; that the execution of a new
leasehold agreement between her and the landowners be ordered; and by way of counterclaim,
that moral damages15 and litigation costs be awarded her.

Ruling of the PARAD

After hearing and consideration of the parties’ respective position papers and other submissions,
the PARAD issued on May 4, 1998 a Decision,16 which decreed as follows:

WHEREFORE, premises considered, judgment is hereby rendered in favor of the defendant and
against the plaintiffs and Order is hereby issued:

1. ORDERING the dismissal of the case;

2. DECLARING defendant Dominga Robles Vda. de Caparas as lawful successor-tenant;

 3. ORDERING plaintiffs to maintain defendant in her peaceful possession and cultivation
of the subject landholding;

4. ORDERING the MARO of Malolos, Bulacan to execute a new leasehold contract

between the landowner and defendant Dominga Robles Vda. de Caparas;

5. No pronouncement as to costs.

SO ORDERED.17

The PARAD held that Amanda’s act of executing the July 10, 1996 Affidavit and "Kasunduan sa
Buwisan ng Lupa" amounted to dispossession of Pedro’s landholding and rights without cause;
that Amanda’s 1996 disclaimer, after having installed Pedro as tenant in 1979, was belated and
unjustified; that petitioners have not shown by evidence that they actually cultivated the land, or
that they paid rentals to the landowners; that petitioners’ cause of action has prescribed in
accordance with Section 38 of RA 3844; that for failure to timely question Pedro’s leasehold, his
rights were transferred, by operation of law, to Dominga upon his death. Finally, the PARAD held
that petitioners’ July 10, 1996 "Kasunduan sa Buwisan ng Lupa" is null and void for being issued
against Pedro’s existing 1979 Agricultural Leasehold Contract, which has not been cancelled by
competent authority.

DARAB Case No. 03-03-10307-99

It appears that sometime after the execution of the July 10, 1996 "Kasunduan sa Buwisan ng
Lupa" and during the pendency of DARAB Case No. R-03-02-3520-96, petitioners entered the
land and began tilling the same. For this reason, Dominga filed DARAB Case No. 03-03-10307-
99, for maintenance of peaceful possession with injunctive relief, against the landowners and
petitioners. On petitioners’ motion, the case was dismissed.18

Ruling of the DARAB

Petitioners appealed the May 4, 1998 PARAD Decision in DARAB Case No. R-03-02-3520-96 to
the DARAB, where the case was docketed as DARAB Case No. 972219 (DCN 9722). Dominga
likewise appealed the dismissal of DARAB Case No. 03-03-10307-99, which appeal was
docketed as DARAB Case No. 11155 (DCN 11155). On motion, both appeals were consolidated.

On June 15, 2005, the DARAB issued its Decision,20 the dispositive portion of which reads, as
follows:

WHEREFORE, premises considered, a new judgment is hereby rendered:

1. DECLARING Dominga Robles Vda. de Caparas as the lawful successor-tenant of

Pedro Caparas over the subject landholding;

2. ORDERING the plaintiffs in DCN 9722 and the respondents in DCN 11155 or any
person acting in their behalves [sic], to maintain Dominga Robles Vda. de Caparas in
peaceful possession and cultivation of the subject landholding;

3. ORDERING the MARO of Malolos, Bulacan, to execute a new leasehold contract

between the landowner and Dominga Robles Vda. de Caparas; and

4. ORDERING for the dismissal of DCN 11155 for being moot and academic.
SO ORDERED.21

In upholding the PARAD Decision, the DARAB held that contrary to petitioners’ claim, there was
no alternate farming agreement between the parties, and thus petitioners may not claim that they
were co-lessees; that Pedro merely shared his harvest with petitioners as an act of generosity,
and Dominga’s act of stopping this practice after succeeding Pedro prompted petitioners to file
DARAB Case No. R-03-02-3520-96 and claim the status of co-lessees; that Amanda’s Affidavit
and the 1996 "Kasunduan sa Buwisan ng Lupa" between the landowners and petitioners cannot
defeat Pedro’s 1979 Agricultural Leasehold Contract and his rights as the sole tenant over the
land; that for sleeping on their rights, petitioners are now barred by laches from claiming that they
are co-lessees; and that petitioners’ 1996 "Kasunduan sa Buwisan ng Lupa" is null and void for
being contrary to law, morals, public policy, and Pedro’s 1979 Agricultural Leasehold Contract,
which was subsisting and which has not been cancelled by competent authority.

Ruling of the Court of Appeals

Petitioners filed before the CA a Petition for Certiorari, which was docketed as CA-G.R. SP No.
90403, seeking to set aside the DARAB Decision. The sole basis of their Petition rests on the
argument that as a result of a May 9, 2005 Order issued by the Regional Technical Director
(Region III) of the Department of Environment and Natural Resources, the survey returns and
plans covering TCT RT-65932 have been cancelled, which thus rendered the June 15, 2005
DARAB Decision null and void and a proper subject of certiorari.

On August 31, 2007, the CA issued the assailed Decision which decreed as follows:

IN LIGHT OF ALL THE FOREGOING, the instant petition is DENIED. The assailed decision is
AFFIRMED in toto.

SO ORDERED.22

The CA held that the issue raised by petitioners – the cancellation of the survey returns and plans
covering TCT RT-65932 – was not part of their causes of action in the PARAD or DARAB, and
this new issue changed the theory of their case against Dominga, which is not allowed. The CA
added that it could not decide the case on the basis of a question which was not placed in issue
during the proceedings below.

The CA held further that even granting that the issues are resolved on the merits, the petition
would fail; the cancellation of the survey returns and plans covering TCT RT-65932 reverts the
property to its original classification as agricultural land which thus vindicates the leasehold
agreements of the parties. And speaking of leasehold agreements, the CA held that petitioners
may not be considered as Pedro’s co-lessees, for lack of proof that they actually tilled the land
and with petitioners’ own admission in their pleadings that they merely received a share from
Pedro’s harvests; that the original 1974 and 1979 leasehold agreements between Makapugay,
Amanda and Pedro categorically show that Pedro is the sole designated agricultural lessee; and
that without proper legal termination of Pedro’s lease in accordance with RA 3844, the
landowners cannot designate other tenants to the same land in violation of the existing lessee’s
rights.

Petitioners moved for reconsideration, arguing that the land has been re- classified as residential
land, and has been actually used as such. Petitioners cited a 1997 ordinance, Malolos Municipal
Resolution No. 41-97,23 which adopted and approved the zoning ordinance and the Malolos
Development Plan prepared jointly by the Housing and Land Use Regulatory Board and the
Malolos Sangguniang Bayan. In the assailed December 13, 2007 Resolution, 24the CA denied the
Motion for Reconsideration.
 Issues

In this petition, the following errors are assigned:

1. x x x RESPONDENT’S ACT OF HAVING BUILT THREE (3) HOUSES (FOR

HERSELF AND TWO OF HER CHILDREN), WAS "CONVERSION OF THE FARMHOLD
INTO A HOUSING-RESIDENTIAL SUBDIVISION" AND THEREFORE, SHE IS NOT
BEING PUT IN SURPRISE NOR IN UNFAIR SITUATION. CONSEQUENTLY, SHE IS
THE PARTY IN ESTOPPEL. AND FROM THE TIME BY HER ACTS OF SELF-
CONVERSION OF THE LAND, IN THE EARLY ‘90S OR EARLIER, SHE "LOST HER
SECURITY OF TENURE" AS AGRICULTURAL LESSEE.

2. THE DECISIONS OF THE DARAB PROVINCIAL ADJUDICATOR, DARAB CENTRAL

OFFICE, AND THE HONORABLE COURT OF APPEALS, SPEAK OF NO HOMELOT
HAVING BEEN AWARDED BY THE DEPARTMENT OF AGRARIAN REFORM TO
PRIVATE RESPONDENT.

3. ACTUAL PHYSICAL CHANGE IN THE USE OF THE LAND FROM AGRICULTURAL

TO "RESIDENTIAL" MAY OCCUR AFTER TRIAL, BUT DURING THE APPEAL, WHICH
THE HON. COURT OF APPEALS MAY CONSIDER.

4. "CONVERSION" (WHICH REQUIRES PRIOR APPROVAL BY THE DAR) HAVING

BECOME A "FAIT ACCOMPLI", SECTION 220 OF THE REAL ESTATE TAX CODE
AND ARTICLE 217 OF THE LOCAL GOVERNMENT CODE OF 1991 AFFIRM THE
TRUSTWORTHINESS OF THE TAX DECLARATION THAT IS, THE PREVIOUS
FARMHOLD HAS BEEN CONVERTED INTO "RESIDENTIAL" LAND, AND
CONFIRMED BY THE CITY ZONING DIRECTOR.

5. IN NOT HAVING CONSIDERED THE TAX DECLARATION AND THE ZONING

CERTIFICATION x x x, THE HON. COURT OF APPEALS COMMITTED A VERY
FUNDAMENTAL ERROR.25

Petitioners’ Arguments

In their Petition and Reply,26 petitioners this time argue that in building houses upon the land for
herself and her children without a homelot award from the Department of Agrarian Reform,
Dominga converted the same to residential use; and by this act of conversion, Dominga violated
her own security of tenure and the land was removed from coverage of the land reform laws.
They add that the Malolos zoning ordinance and the tax declaration covering the land effectively
converted the property into residential land.

Petitioners justify their change of theory, the addition of new issues, and the raising of factual
issues, stating that the resolution of these issues are necessary in order to arrive at a just
decision and resolution of the case in its totality. They add that the new issues were raised as a
necessary consequence of supervening events which took place after the Decisions of the
PARAD and DARAB were issued.

Respondent’s Arguments

In her Comment,27 Dominga argues that the Petition raises questions of fact which are not the
proper subject of a Petition under Rule 45 of the Rules. She adds that petitioners raised anew
issues which further changed the theory of their case, and which issues may not be raised for the
first time at this stage of the proceedings.
 Our Ruling

The Petition is denied.

DARAB Case No. R-03-02-3520-96, which was filed in 1996 or long after Pedro’s death in 1984,
has no leg to stand on other than Amanda’s declaration in her July 10, 1996 Affidavit that Pedro
falsely represented to Makapugay and to her that he is the actual cultivator of the land, and that
when she confronted him about this and the alleged alternate farming scheme between him and
petitioners, Pedro allegedly told her that "he and his two sisters had an understanding about it
and he did not have the intention of depriving them of their cultivatory rights."28 Petitioners have
no other evidence, other than such verbal declaration, which proves the existence of such
arrangement. No written memorandum of such agreement exists, nor have they shown that they
actually cultivated the land even if only for one cropping. No receipt evidencing payment to the
landowners of the latter’s share, or any other documentary evidence, has been put forward.

What the PARAD, DARAB and CA failed to consider and realize is that Amanda’s declaration in
her Affidavit covering Pedro’s alleged admission and recognition of the alternate farming scheme
is inadmissible for being a violation of the Dead Man’s Statute, 29 which provides that "[i]f one
party to the alleged transaction is precluded from testifying by death, insanity, or other mental
disabilities, the other party is not entitled to the undue advantage of giving his own uncontradicted
and unexplained account of the transaction."30 Thus, since Pedro is deceased, and Amanda’s
declaration which pertains to the leasehold agreement affects the 1996 "Kasunduan sa Buwisan
ng Lupa" which she as assignor entered into with petitioners, and which is now the subject matter
of the present case and claim against Pedro’s surviving spouse and lawful successor-in-interest
Dominga, such declaration cannot be admitted and used against the latter, who is placed in an
unfair situation by reason of her being unable to contradict or disprove such declaration as a
result of her husband-declarant Pedro’s prior death.

If petitioners earnestly believed that they had a right, under their supposed mutual agreement
with Pedro, to cultivate the land under an alternate farming scheme, then they should have
confronted Pedro or sought an audience with Amanda to discuss the possibility of their institution
as co-lessees of the land; and they should have done so soon after the passing away of their
father Eugenio. However, it was only in 1996, or 17 years after Pedro was installed as tenant in
1979 and long after his death in 1984, that they came forward to question Pedro’s succession to
the leasehold. As correctly held by the PARAD, petitioners slept on their rights, and are thus
precluded from questioning Pedro’s 1979 agricultural leasehold contract.

Amanda, on the other hand, cannot claim that Pedro deceived her into believing that he is the
sole successor to the leasehold. Part of her duties as the landowner’s representative or
administrator was to know the personal circumstances of the lessee Eugenio; more especially so,
when Eugenio died. She was duty-bound to make an inquiry as to who survived Eugenio, in order
that the landowner – or she as representative – could choose from among them who would
succeed to the leasehold. Under Section 9 of RA 3844, Makapugay, or Amanda – as
Makapugay’s duly appointed representative or administrator – was required to make a choice,
within one month from Eugenio’s death, who would succeed as agricultural lessee. Thus:

Section 9. Agricultural Leasehold Relation Not Extinguished by Death or Incapacity of the Parties
- In case of death or permanent incapacity of the agricultural lessee to work his landholding, the
leasehold shall continue between the agricultural lessor and the person who can cultivate the
landholding personally, chosen by the agricultural lessor within one month from such death or
permanent incapacity, from among the following: (a) the surviving spouse; (b) the eldest direct
descendant by consanguinity; or (c) the next eldest descendant or descendants in the order of
their age: Provided, That in case the death or permanent incapacity of the agricultural lessee
occurs during the agricultural year, such choice shall be exercised at the end of that agricultural
year: Provided, further, That in the event the agricultural lessor fails to exercise his choice within
the periods herein provided, the priority shall be in accordance with the order herein established.

In case of death or permanent incapacity of the agricultural lessor, the leasehold shall bind his
legal heirs. (Emphasis supplied)

Amanda may not claim ignorance of the above provision, as ignorance of the law excuses no one
from compliance therewith.31 Thus, when she executed the 1979 Agricultural Leasehold Contract
with Pedro, she is deemed to have chosen the latter as Eugenio’s successor, and is presumed to
have diligently performed her duties, as Makapugay’s representative, in conducting an inquiry
prior to making the choice.

The same holds true for petitioners. They should be held to a faithful compliance with Section 9. If
it is true that they entered into a unique arrangement with Pedro to alternately till the land, they
were thus obliged to inform Makapugay or Amanda of their arrangement, so that in the process of
choosing Eugenio’s successor, they would not be left out. But evidently, they did not; they slept
on their rights, and true enough, they were excluded, if there was any such alternate farming
agreement between them. And after Pedro was chosen and installed as Eugenio’s successor,
they allowed 17 years to pass before coming out to reveal this claimed alternate farming
agreement and insist on the same.1âwphi1

With the above pronouncements, there is no other logical conclusion than that the 1996
"Kasunduan sa Buwisan ng Lupa" between Amanda and petitioners, which is grounded on
Pedro’s inadmissible verbal admission, and which agreement was entered into without obtaining
Dominga’s consent, constitutes an undue infringement of Dominga’s rights as Pedro’s successor-
in-interest under Section 9, and operates to deprive her of such rights and dispossess her of the
leasehold against her will. Under Section 732 of RA 3844, Dominga is entitled to sennity of tenure;
and under Section 16,33 any modification of the lease agreement must be done with the consent
of both parties and without prejudicing Dominga's security of tenure.

This Court shall not delve into the issue of re-classification or conversion of the land. Re-
classification/conversion changes nothing as between the landowners and Dominga in regard to
their agreement, rights and obligations. On the contrary, re-classification/conversion can only
have deleterious effects upon petitioners' cause. Not being agricultural lessees of the land,
petitioners may not benefit at all, for under the law, only the duly designated lessee -herein
respondent - is entitled to disturbance compensation in case of re-classification/conversion of the
landholding into residential, commercial, industrial or some other urban purposes. 34 Besides, a
valid re-classification of the land not only erases petitioners' supposed leasehold rights; it renders
them illegal occupants and sowers in bad faith thereof, since from the position they have taken as
alleged lessees, they are not the owners of the land.

WHEREFORE, the Petition is DENIED. The assailed August 31, 2007 Decision and December
13, 2007 Resolution of the Court of Appeals are AFFIRMED.

SO ORDERED.

10 304 SECOND DIVISION

G.R. No. 189822 September 2, 2013
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, vs.
JOJIE SUANSING, ACCUSED-APPELLANTS
Carnal knowledge of a woman suffering from mental retardation is rape since she is incapable of
giving consent to a sexual act. Under these circumstances, all that needs to be proved for a
successful prosecution are the facts of sexual congress between the rapist and his victim, and the
latter’s mental retardation.1

Factual Antecedents

For review is the July 17, 2009 Decision2 of the Court of Appeals (CA) in CA-G.R. CR-HC No.
00439-MIN that affirmed with modification the April 14, 2004 Decision3 of the Regional Trial Court
(RTC), Branch 33, Davao City, in Criminal Case No. 49,196-2002, finding appellant Jojie
Suansing (appellant) guilty beyond reasonable doubt of the crime of rape against "AAA," 4 as
described in the Amended Information,5 the relevant portions of which read as follows:

That sometime in the first week of April 2001, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, by means of force and
intimidation, willfully, unlawfully and feloniously had carnal knowledge of one "AAA", attended by
the qualifying circumstance that the victim has a mental disability. The accused knew of such
mental disability at the time of the commission of the crime. The sexual assault done by the
accused was against the will of "AAA".

Contrary to law.6

Appellant pleaded not guilty. After the pre-trial conference, trial ensued.

Version of the Prosecution

The prosecution presented as its witnesses "AAA;" her aunt and guardian, "EEE;" her friend,
"FFF;" doctor of gynecology, Mary Grace Solano, M.D. (Dr. Solano); doctor of psychiatry, Sally
Jane Kwong-Garcia, M.D. (Dr. Kwong-Garcia); and psychologist Evangeline Castro (Castro). The
RTC allowed "AAA" to testify after evaluating her ability to comprehend and answer questions.
The RTC also permitted the prosecution and the defense to propound leading questions to
her.7 Based on their testimonies,8 the following facts emerged:

"AAA" was born on July 6, 1975. She used to live in Tangub City with her grandparents because
her mother suffered from and later died of tuberculosis. When "AAA" was 15 years old, she
became a mother to a baby boy who was born on September 29, 1990. Nobody admitted
responsibility for her pregnancy. To receive better guidance and supervision, "AAA" was
transferred to the residence of "EEE" who raised her as a daughter.

Sometime before April 8, 2001, "GGG" requested "FFF" to get from appellant’s boarding house
an electric fan and a transformer. "FFF" together with her brother and "AAA" went to the boarding
house of appellant. After giving the requested items, appellant ordered "FFF" and her brother to
leave "AAA" behind.

"FFF" brought the items to "GGG" who, upon learning that "AAA" was still with appellant,
requested "FFF" to return to appellant’s boarding house to fetch "AAA." Upon arriving at the
boarding house, "FFF" noticed that the door was closed. She called out to "AAA" to go home to
avoid being scolded by "EEE." "AAA" opened the door and came out fixing her short pants. "FFF"
then asked "AAA" if anything happened. "AAA" replied that after "FFF" and her brother left the
boarding house, appellant pulled her inside the room, removed her shoes and panty, told her to
lie down on the floor, and inserted his penis into her vagina without her consent. "AAA" requested
"FFF" not to tell anyone that she was raped by appellant.
On August 3, 2001, "EEE" learned about the rape and confronted "AAA." "EEE" then reported the
incident to police authorities.

The genital examination of "AAA" on August 6, 2001 revealed old hymenal lacerations. Her
psychiatric evaluation also disclosed that she was suffering from mild retardation with the mental
age of a 9 to 12-year old child. Although with impaired adaptive skills, the RTC found "AAA"
qualified to testify. The psychological examination of "AAA" established her mental retardation to
be in a mild form and her intelligence quotient (IQ) of 53 though below the average IQ score of 71
was "within the defective level of a Normal Intelligence Scale."

Version of the Defense

In his testimony,9 appellant denied raping "AAA." He claimed that he used to live with "AAA" and
her relatives and was considered a member of their family. He treated "AAA" as his niece and
knew about her mental retardation. He later rented a room near the residence of "AAA." He
admitted that sometime in the first week of April 2001, his sister "GGG," who was living nearby,
asked "AAA," "FFF," the latter’s brother and another girl to go to his boarding house to get an
electric fan, a bread toaster, and a wall décor. "AAA," "FFF" and the other girl went inside his
room while "FFF’s" brother waited outside. After getting the items, "FFF" and the other girl left
while "AAA" stayed behind. After a few minutes, "FFF" and the other girl returned to fetch "AAA."
He belied the statement of "FFF" that "AAA" was fixing her short pants when she came out of his
room.

Appellant claimed that the relatives of "AAA" filed the instant case against him because his sister,
"GGG", no longer gives them financial support.

Ruling of the Regional Trial Court

In its April 14, 2004 Decision, the RTC found convincing evidence that "AAA" is a mental
retardate; that in spite of her mental inadequacy, her testimony was credible as shown from her
"intelligent and coherent answers to questions propounded to her by the prosecution, the defense
and the Court;"10 that appellant was aware that "AAA" is a mental retardate; that appellant raped
"AAA;" that "AAA" or "FFF" was not ill-motivated to falsely accuse appellant of such crime; and,
that proof of force or intimidation was unnecessary as a mental retardate is not capable of giving
consent to a sexual act.

However, the RTC also ruled that since "AAA’s" mental retardation was not specifically alleged in
the Amended Information, it cannot be considered as a qualifying circumstance that would
warrant the imposition of the death penalty. The RTC stated that the "mental disability" of "AAA"
at the time of the rape relates to a broad description of several mental ailments and that the
Amended Information failed to specify what constitutes "mental disability." Thus, the RTC
disposed as follows:

WHEREFORE, the prosecution having established the guilt of the accused beyond reasonable
doubt of the crime of simple rape, the accused JOJIE SUANSING is hereby sentenced to suffer
the penalty of reclusion perpetua, with all the accessory penalties provided by law, to indemnify
the offended party in the sum of Php50,000.00 as moral damages.

He shall be committed forthwith to the national penitentiary.

Costs de oficio.

SO ORDERED.11
 Ruling of the Court of Appeals

Appellant filed a Notice of Appeal12 with this Court. However, pursuant to our ruling in People v.
Mateo,13 the case was remanded to the CA for appropriate action and disposition. 14

In his brief, appellant imputed upon the court a quo the lone error that it –

X X X GRAVELY ERRED IN CONVICTING HEREIN ACCUSED-APPELLANT DESPITE THE

FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.15

Appellant argued that the prosecution failed to discharge its burden of proving his guilt beyond
reasonable doubt; that the medical findings do not substantiate the allegation that "AAA" was
raped; that the elements of force, violence and intimidation were not proved; that he was falsely
accused of the crime charged; that "AAA’s" aunt, "EEE", was angry at him even before they
reported the alleged rape to police officers; that even if nobody raped her, "AAA" would say the
opposite just to please "EEE."

The People, through the Office of the Solicitor General (OSG), asserted in its brief 16 that the
RTC’s Decision should be affirmed in all respects since the arguments of appellant failed to
persuade; that a medical examination is not an indispensable element in the prosecution of rape
and an accused may be convicted even on the sole basis of the victim’s credible testimony; that
force and intimidation do not have to be proved since "AAA" suffers from mental retardation; and
that appellant’s denial cannot prevail over the positive identification of "AAA." It thus invoked the
well-established rule that the findings of the RTC on the issue of credibility of witnesses and their
testimonies are entitled to great respect and are given the highest consideration on appeal.

In its Decision, the CA affirmed the findings of the RTC with respect to the assessment of the
testimony of "AAA." It also affirmed the RTC’s ruling not to consider the mental retardation of
"AAA" as a qualifying circumstance that would result in the imposition of the death penalty since it
was not specifically alleged in the Amended Information. However, the CA modified the awards
for civil indemnity and moral damages to conform to prevailing jurisprudence. Thus, the
dispositive portion of the CA’s Decision reads as follows:

WHEREFORE, the Decision of the Regional Trial Court, Branch 33, Davao City, dated April 22,
2004 in Criminal Case No. 49,196-2002 is AFFIRMED with MODIFICATION. Accused-appellant
JOJIE SUANSING is ordered to pay the private complainant the sums of Php50,000.00 as civil
indemnity and Php50,000.00 as moral damages plus costs.

SO ORDERED.17

Appellant filed a Notice of Appeal18 praying for his exoneration.

On February 3, 2010, the parties were directed to file their supplemental briefs 19 but both the
OSG and appellant opted to adopt their respective briefs submitted before the CA as their appeal
briefs.

Our Ruling

The appeal is unmeritorious.

Article 266-A, paragraph 1 of the Revised Penal Code (RPC), as amended by Republic Act (RA)
No. 8353, states that:
Art. 226-A. Rape, When and How Committed. – Rape is committed –

1) By a man who shall have carnal knowledge of a woman under any of the following
circumstances:

a) Through force, threat or intimidation;

b) When the offended party is deprived of reason or is otherwise unconscious,

c) By means of fraudulent machination or grave abuse of authority;

d) When the offended party is under twelve (12) years of age or is demented, even
though none of the circumstances mentioned above be present.

"[F]or the charge of rape to prosper, the prosecution must prove that (1) the offender had carnal
knowledge of a woman, (2) through force or intimidation, or when she was deprived of reason or
otherwise unconscious, or when she was under 12 years of age or was demented."20 From these
requisites, it can thus be deduced that rape is committed the moment the offender has sexual
intercourse with a person suffering from mental retardation. "[C]arnal knowledge of a woman who
is a mental retardate is rape. A mental condition of retardation deprives the complainant of that
natural instinct to resist a bestial assault on her chastity and womanhood. For this reason, sexual
intercourse with one who is intellectually weak to the extent that she is incapable of giving
consent to the carnal act already constitutes rape[,] without requiring proof that the accused used
force and intimidation in committing the act."21 Only the facts of sexual congress between the
accused and the victim and the latter’s mental retardation need to be proved. 22

In this case, the evidence presented by the prosecution established beyond reasonable doubt the
sexual congress between appellant and "AAA" and the latter’s mental retardation. "AAA"
positively identified appellant as her rapist. 23 She also described the manner by which appellant
perpetrated the crime, viz:

ATTY. GASPAR:

Q:

What happened when you stayed behind?

A:

He removed my shorts and panty.

Q:

So what happened after removing your shorts and panty?

A:

[We] had a (sic) sexual intercourse.

COURT:

Q:
What did he do to you?

A:

(No answer)

ATTY. GASPAR:

We manifest Your Honor that the witness is crying.

ATTY. CAGATIN:

We would like to manifest for the record, your Honor that in spite of several questions of what
[Suansing did] to her[,] no answer was given.

COURT:

Alright.

Q:

Could you answer the question?

A:

[We] had sexual intercourse.

ATTY. GASPAR:

Q:

Where did that happen?

A:

At the boarding house.

Q:

What part of the boarding house?

A:

I could not recall.

Q:

What was your position, were you lying when he had sexual intercourse with you?

A:
He asked me to lie down.

COURT:

Q:

Did the penis enter your vagina?

A:

(The witness is gesturing in the affirmative.)

ATTY. CAGATIN:

The gesture of the witness could not be made a point of reference. Nothing has been shown by
the witness that it has been for the affirmative.

COURT:

Alright, you answer.

A:

He entered his penis.

Q:

And you enjoyed it?

A:

No.

COURT:

Alright.

Q:

And you consented [to] the sexual intercourse?

A:

No.

Q:

Why did you allow yourself to have sexual intercourse with Jojie Suansing?

A:
Because he pulled me towards the room.24

Both the RTC and the CA also found that "AAA’s" mental retardation was satisfactorily
established by the prosecution. Dr. Kwong-Garcia, a psychiatrist at the Davao Medical Center,
testified that the results of the IQ test conducted on "AAA" revealed that she is a mental retardate
with a mental age of between 9-12 years. These findings are contained in a Medical Certificate
dated December 11, 2002.25 These findings were corroborated by the Psychological Assessment
Report26 of Castro, a psychologist at the Davao Medical Center, whose examination showed that
the intellectual capacity of "AAA" is between 9-12 years old. These pieces of evidence prove
beyond doubt that "AAA" is a mental retardate. Notably, the defense did not even impugn "AAA’s"
mental retardation. On the contrary, records show that even appellant himself conceded that
"AAA" is a mental retardate. We therefore agree with the RTC’s ruling, as affirmed by the CA, that
"AAA’" is mentally retarded.

A mentally retarded victim cannot fabricate her charges.

The RTC and the CA did not err in giving credence to the testimony of "AAA." Records show that
"AAA" cried when she recalled on the witness stand her ordeal at the hands of the appellant.
"[T]he crying of a victim during her testimony is evidence of the credibility of the rape charge with
the verity borne out of human nature and experience."27

There is also nothing from "AAA’s" testimony that would arouse suspicion. Considering the
mental retardation of "AAA," we find it highly improbable that she would fabricate the rape charge
against appellant. It is likewise unlikely that she was instructed into accusing appellant given her
limited intellect.1âwphi1 Due to her mental condition, only a very traumatic experience would
leave a lasting impression on her so that she would be able to recall it when asked. 28Thus, in
People v. Balatazo,29 we held that:

Given the low IQ of the victim, it is impossible to believe that she could have fabricated her
charges against appellant. She definitely lacked the gift of articulation and inventiveness. Even
with intense coaching, assuming this happened as appellant insists that the victim’s mother
merely coached her on what to say in court, on the witness stand where she was alone, it would
eventually show with her testimony falling into irretrievable pieces. But, this did not happen.
During her testimony, she proceeded, though with much difficulty, to describe the sexual assault
in such a detailed manner. Certainly, the victim’s testimony deserves utmost credit. 30

Mental retardation does not lessen her credibility.

The mental deficiency of "AAA" does not diminish the reliability of her testimony. It has been our
consistent ruling that the RTC’s assessment of the credibility of witnesses deserves great respect
in the absence of any attendant grave abuse of discretion since it had the advantage of actually
examining the real and testimonial evidence, including the conduct of the witnesses, and is in the
best position to rule on the matter. This rule finds greater application when the RTC’s findings are
sustained by the CA, as in this case. Here, we do not find any reason to depart from the RTC’s
assessment of the testimony of "AAA."31

Further, "AAA" was able to make known her perception, communicate her ordeal, in spite of
some difficulty, and identify appellant as her rapist. Even a mental retardate qualifies as a
competent witness if she can perceive, and can make known her perception to others. 32

Absence of fresh lacerations does not negate sexual intercourse.

Concededly, the physical examination conducted on "AAA" revealed old hymenal lacerations.
However, "[t]he absence of fresh lacerations does not negate sexual intercourse. In fact, rupture
of the hymen is not essential as the mere introduction of the male organ in the labia majora of the
victim’s genitalia consummates the crime."33 In other words, "[w]hat is required for a
consummated crime of rape x x x is the mere touching of the labia by the penis."34 In this case,
"AAA" went beyond this minimum requirement as she testified that appellant’s penis entered her
vagina.35

All told, we are not persuaded by appellant’s denial, which is inherently weak and cannot prevail
over the positive identification by "AAA" of him as the perpetrator of the crime. "[A]ppellant’s mere
denial cannot overcome the victim’s positive declaration that she had been raped and the
appellant was her rapist."36

Knowledge of the offender of the mental disability of the victim during the rape qualifies and
makes it punishable by death.

Paragraph 10, Article 266-B of the RPC, as amended, provides:

ART. 266-B. Penalties. x x x

The death penalty shall also be imposed if the crime of rape is committed with any of the
following aggravating/qualifying circumstances:

xxxx

10. When the offender knew of the mental disability, emotional disorder and/or physical handicap
of the offended party at the time of the commission of the crime. [Emphasis supplied]

Thus, knowledge of the offender of the mental disability of the victim during the commission of the
crime of rape qualifies and makes it punishable by death. However, such knowledge by the rapist
should be alleged in the Information since "a crime can only be qualified by circumstances
pleaded in the indictment."37

In this case, the Amended Information specifically provides:

That sometime in the first week of April 2001, in the City of Davao, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused, by means of force and
intimidation, willfully, unlawfully and feloniously had carnal knowledge of one "AAA", attended by
the qualifying circumstance that the victim has a mental disability. The accused knew of such
mental disability at the time of the commission of the crime. The sexual assault done by the
accused was against the will of "AAA".

Contrary to law.38

Clearly, appellant’s knowledge of the mental disability of "AAA" at the time of the commission of
the crime of rape was properly alleged in the Amended Information. "Knowledge of the offender
of the mental disability of the victim at the time of the commission of the crime of rape qualifies
the crime and makes it punishable by death x x x."39"When rape is committed by an assailant who
has knowledge of the victim’s mental retardation, the penalty is increased to death." 40 "Mental
retardation is a chronic condition present from birth or early childhood and characterized by
impaired intellectual functioning measured by standardized tests."41 Intellectual or mental
disability "is a term synonymous with and is now preferred over the older term, mental
retardation."42
As found by the RTC and affirmed by the CA, the prosecution proved beyond reasonable doubt
that appellant was aware of the mental retardation of "AAA." Appellant testified that he knew
"AAA" and that he even used to reside with her and her relatives. He was treated as a member of
their family. In fact, he regarded "AAA" as his niece. His boarding house was also a few minutes
away from the residence of "AAA." He also admitted that "AAA" was known to be mentally
retarded in their community. The low intellect of "AAA" was easily noticeable to the RTC from the
answers she gave to the questions propounded to her in the course of her testimony. We also
stress that from the filing of this case until its appeal, appellant did not assail "AAA’s" mental
disability and even admitted knowledge of her intellectual inadequacy.

Thus, appellant’s knowledge of "AAA’s" mental disability at the time of the commission of the
crime qualifies the crime of rape. Appellant is therefore guilty of the crime of qualified rape.

Proper Penalty

Paragraph 10 of Article 266-B of the RPC expressly provides that the penalty of death shall be
imposed "when the offender knew of the mental disability x x x of the offended party at the time of
the commission of the crime." The supreme penalty of death should have been imposed on the
appellant due to the special qualifying circumstance of knowledge at the time of the rape that
"AAA" was mentally disabled.

However, the enactment of RA 934643 prohibited the imposition of the death penalty. In lieu
thereof, the penalty of reclusion perpetua is imposed in accordance with Section 2 of RA 9346. In
addition, as provided under Section 3 thereof, appellant shall not be eligible for parole.

Damages

Pursuant to prevailing jurisprudence, the civil indemnity for the victim shall be ₱75,000.00 if the
rape is perpetrated with any of the attending qualifying aggravating circumstances that require the
imposition of the death penalty.44

Moral damages must also be awarded in rape cases without need of proof other than the fact of
rape since it is assumed that the victim suffered moral injuries entitling her to such an award.
However, the CA’s award of ₱50,000.00 must be increased to ₱75,000.00 to conform to existing
case law.45 Exemplary damages are likewise called for, by way of public example and to protect
the young from sexual abuse.46 We therefore order appellant to pay "AAA" exemplary damages in
the amount of ₱25,000.00.47 In addition, we order appellant to pay interest at the rate of 6% per
annum on all damages awarded from the date of the finality of this judgment until fully paid.48

WHEREFORE, the Decision of the Court of Appeals in CA-G.R. CR-HC No. 00439-MIN dated
July 17, 2009 is AFFIRMED with MODIFICATIONS. Appellant Jojie Suansing is hereby found
guilty beyond reasonable doubt of the crime of qualified rape and is sentenced to suffer the
penalty of reclusion perpetua without eligibility for parole. The amounts of civil indemnity and
moral damages awarded to "AAA" are increased to ₱75,000.00 each. Appellant Jojie Suansing is
also ordered to pay "AAA" exemplary damages in the amount of ₱25,000.00. All damages
awarded shall earn interest at the legal rate of 6% per annum from the date of finality of this
judgment until fully paid.

SO ORDERED.