emedial Law ReviewRSALVADOR DigestsA. ADMISSIBILITY

GARCILLANO VS HOUSE OF REPRESENTATIVES(Note: Sir did not give any citation for this but I only found 1 garcillano vs house of reps lang naman.

Also, case is more on Consti rather than evidence. Su-per short lang yung for rem)

Facts: Tapes which appears to contain a wiretapped conversation purportedly between GMA and a high ranking official of the comelec (Garci) surfaced. The “hello garci” tapes allegedly contained GMA’s instruc-tions to garci to manipulate the votes in her favor.

A congressional investigation in the House of Reps was conducted. And after a prolonged debate, the tapes were eventually played in the chambers of the house. However, the house committees decided to suspend the hearings indefinitely. Garcia filed a peti-tion for prohibition and injunction with the SC to retrain the house committees from using these tape record-ings in their reports and for other purposes. Later, the house discussion and debates on the hello garci tapes abruptly stopped.

2years later, the matter was brought to life again in the Senate after Lacson’s privilege speech. Lengthy debates ensued as to whether conducting a legislative inquiry on the matter will violate the Anti-Wiretapping Law and the Consti. A petition was filed with the SC by retired justices of the CA to bar the sen-ate from conducting its scheduled legislative inquiry. SC did not issue an injunctive writ so the senate pro-ceeded with its public hearings.

Issue: Whether proceedings of the House and of the Senate should be stopped? YES.

Held: Petition regarding proceeding in the House is dis-missed for being moot and academic. Recall that the proceedings have been stopped already. As to the pro-ceedings in the Senate, SC grants petition to stop them.

SC reasons out that the Senate cannot be al-lowed to continue with the conduct of the questioned legislative inquiry without duly published rules of pro-cedure, in clear violation of the constitutional require-ment under Art6, sec21: “Senate or the House of Rep-resentatives, or any of its respective committees may conduct inquiries in aid of legislation in accordance with its duly published rules of procedure."

The requisite of publication of the rules is in-tended to satisfy the basic requirements of due process. What constitutes publication is set forth in Ar-ticle 2 of the Civil Code, which provides that "laws shall take effect after 15 days following the completion of their publication either in the Official Gazette, or in a newspaper of general circulation in the Philippines."

Note that the respondents in this case (house of reps) admit the senate rules of procedure governing inquiries in aid of legislation had been published only in 1995 and 2006. With respect to the present 14th Con-gress, no effort was undertaken for the publication of these rules when they first opened their session.

[Discussion on jurisprudence and law on when should Senate publish its rules followed. Basically, Sen-ate as an institution is continuing. However, with re-gard to its day-to-day business, Senate of each Con-gress (13th vs 14th vs 15th...etc) acts separately and in-dependently. Note that Senate has determined that its MAIN rules are valid from their date of adoption until they are amended or repealed. However, with regard to the RULES such as the one governing inquiries in aid of legislation, it only states that there must be publica-tion.]

IMPORTANT PART: House of Reps justify their non-observance of this constitutionally mandated pub-lication by arguing that the rules have never been amended since 1995 and that they are published in booklet form available to anyone for free, and accessi-ble to the public at the senate’s internet page. They claim that there was valid publication through the in-ternet by virtue of the E-Commerce Act.

SC does not agree. R.A. 8792 (E-Commerce) considers an electronic data message or an electronic document as the functional equivalent of a written doc-ument only for evidentiary purposes. In other words, the law merely recognizes the admissibility in evidence (for their being the original) of electronic data mes-sages and/or electronic documents. It does not make the internet a medium for publishing laws, rules and regulations.

E-Commerce Act provides: “For evidentiary pur-poses, an electronic document shall be the functional equivalent of a written document under existing laws.

This Act does not modify any statutory rule re-lating to the admissibility of electronic data messages or electronic documents, except the rules relating to authentication and best evidence.”

PEOPLE V LAUGA

FACTS: Lauga was accused of qualified rape for raping his 13 year old daughter AAA. It was alleged in the In-formation that in the afternoon of March 15, 2000, AAA was left alone at home while her father, Lauga, went to have a drinking spree at the neighbor’s place. AAA’s mother and brother, BBB, also went out. At 10pm, Lauga woke AAA up, removed his pants, slid inside the blanket covering AAA and removed her pants and un-derwear; warned her not to shout for help while threat-ening her with his fist; and told her that he had a knife placed above her head. He proceeded to mash her breast, kiss her repeatedly, and inserted his penis in-side her vagina.

When BBB arrived, he found AAA crying. Lauga claimed he scolded her for staying out late. BBB de-cided to take AAA with him. On their way to their ma-ternal grandmother’s house, AAA recounted her har-rowing experience with their father. Upon reaching their grandmother’s house, they told their grandmother and uncle of the incident, after which, they sought the assistance of the head of the Bantay Bayan, Moises Boy Banting.

Banting found Lauga in his house wearing only his underwear. He invited appellant to the police sta-

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emedial Law ReviewRSALVADOR Digeststion, to which Lauga obliged. At the police outpost, he admitted that he raped AAA because he was unable to control himself.

After a physical examination, the medical cer-tificate of Dra. Alsula shows that the victim’s hymen was freshly lacerated. On his defense, Lauga asserted that the charge against him was ill-motivated because he sometimes physically abuses his wife in front of their children after engaging in a heated argu-ment, and beats the children as a disciplinary measure. He said that, on the day of the alleged rape, he was fu-rious to find that no food was prepared for him and when his wife answered back when confronted, this in-furiated him that he kicked her hard on her buttocks. Later that evening, he was awakened by the members of “Bantay Bayan” and asked him to go with them. He later learned that he was under detention because AAA charged him with rape.

RTC found Lauga guilty of qualified rape. CA affirmed.

ISSUE:1. WON the alleged confession made before a

“bantay bayan” is admissible – NO2. WON the testimony of prosecution witnesses

are credible - YES

HELD:1. NO. Lauga argued that even if he confessed to Bant-ing, a "bantay bayan," the confession was inadmissible in evidence because he was not assisted by a lawyer and there was no valid waiver of such requirement.

First, this Court needs to ascertain whether or not a "bantay bayan" may be deemed a law enforce-ment officer within the contemplation of Article III, Sec-tion 12 of the Constitution.

In People of the Philippines v. Buendia, this Court had the occasion to mention the nature of a "bantay bayan," that is, "a group of male residents liv-ing in [the] area organized for the purpose of keeping peace in their community[,which is] an accredited aux-iliary of the x x x PNP."

This Court is convinced that "bantay bayan," are recognized by the local government unit to perform functions relating to the preservation of peace and or-der at the barangay level. Thus, any inquiry he makes has the color of a state-related function and objective insofar as the entitlement of a suspect to his constitu-tional rights provided for under Article III, Section 12 of the Constitution, otherwise known as the Miranda Rights, is concerned.

Therefore, Lauga was already under custodial investi-gation when he was apprehended by Banting and his Miranda Rights should have been observed.

However, the inadmissibility of said confession does not automatically lead to acquittal. But since in this case, Lauga’s extrajudicial confession was taken without a counsel, it is inadmissible in evidence.

2. YES. Lauga assails the inconsistencies in the testi-monies of AAA and her brother BBB. AAA testified that BBB accompanied her to the house of their grand-mother. Thereafter, they, together with her relatives,

proceeded to look for a "bantay bayan." On the other hand, BBB testified that he brought her sister to the house of their "bantay bayan" after he learned of the incident.

The testimony of AAA does not run contrary to that of BBB. Both testified that they sought the help of a "bantay bayan." Their respective testimonies differ only as to when the help was sought for, which this Court could well attribute to the nature of the testi-mony of BBB, a shortcut version of AAA’s testimony that dispensed with a detailed account of the incident.

At any rate, the Court of Appeals is correct in holding that the assailed inconsistency is too trivial to affect the veracity of the testimonies. In fact, inconsis-tencies which refer to minor, trivial or inconsequential circumstances even strengthen the credibility of the witnesses, as they erase doubts that such testimonies have been coached or rehearsed.

Side Note:Lauga’s contention that AAA charged him of rape only because she bore grudges against him is likewise un-meritorious. As correctly pointed out by the CA: “Indeed, mere disciplinary chastisement is not strong enough to make daughters in a Filipino family invent a charge that would not only bring shame and humilia-tion upon them and their families but also bring their fathers into the gallows of death. The Supreme Court has repeatedly held that it is unbelievable for a daugh-ter to charge her own father with rape, exposing her-self to the ordeal and embarrassment of a public trial and subjecting her private parts to examination if such heinous crime was not in fact committed. No person, much less a woman, could attain such height of cruelty to one who has sired her, and from whom she owes her very existence, and for which she naturally feels loving and lasting gratefulness. Even when consumed with re-venge, it takes a certain amount of psychological de-pravity for a young woman to concoct a story which would put her own father to jail for the most of his re-maining life and drag the rest of the family including herself to a lifetime of shame. It is highly improbable for the victim against whom no proof of sexual perver-sity or loose morality has been shown to fake charges much more against her own father. In fact her testi-mony is entitled to greater weight since her accusing words were directed against a close relative.”

B. JUDICIAL NOTICE

CORINTHIAN GARDENS VS SPOUSES TANJANGCO

FACTS: This case relates to a property dispute within the Corinthian Gardens Subdivision, managed by their association (“Corinthian”). Sps. Tanjangco alleges that the perimeter fence of the Cuasos, encroached on their lot which is directly adjacent to theirs. Because the Cuasos refused to demolish the fence, the Tanjangcos filed a suit for Recovery of Possession with Damages.

In turn, the Cuasos filed a Third Party Com-plaint against Corinthian, Paraz Construction and De Dios Realty and Surveying. They ascribed negligence to Paraz for its failure to ascertain the proper specifica-

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emedial Law ReviewRSALVADOR Digeststions of their house; and to De Dios for his failure to undertake an accurate relocation survey, thereby ex-posing them to litigation.

They faulted Corinthian for approving their re-location survey and building plans without verifying their accuracy, as well as making representations as to De Dios' integrity and competence (being the firm who conducted all the previous surveying for the developer, Corinthian recommended the services of De Dios).

The Cuasos alleged that had Corinthian exer-cised diligence in performing its duty, they would not have been involved in a boundary dispute with the Tanjangcos. Thus, the Cuasos opined that Corinthian should also be held answerable for any damages that they might incur as a result of such construction.

The RTC ruled that the fence did in fact en-croach on the Tanjangco lot. However, since the Cua-sos were builders in good faith, the court gave the Tan-jangcos the option to sell and the former the option to buy the encroaching portion of the land, at a price to be agreed upon by both. In the event that the Cuasos were unable and unwilling to purchase the said portion, the perimeter wall should be demolished at the latter's expense. The RTC also ordered the Cuasos to pay monthly rentals of P2,000.00 commencing from the time of the filing of the complaint. Paraz was found negligent for their disregard of the boundaries and was ordered to pay damages. The complaint with respect to De Dios and Corinthian was dismissed.

Because the RTC denied their Motion for Re-consideration, the Tanjangcos appealed to the CA. The Cuasos and Paraz also appealed.

On appeal, the CA reversed. It held that the Cuasos were in bad faith and were land grabbers. Thus the Tanjangcos were given the right to demand the de-molition of the fence, subject to their reimbursement to the Cuasos of the necessary expenses for the preser-vation of the fence. Also, the Cuasos were ordered to pay, considering its location and category, P10k a month as rent for the use and occupation of the lot. They were also ordered to pay hefty sums for damages and attorney’s fees.

The Cuasos appeal against the Tanjangcos were dismissed. Paraz, De Dios and Corinthian were all found negligent, and were ordered to contribute to all judgment sums that the Cuasos would pay under the decision, and interest on the same.

Only Corinthian filed for reconsideration. Upon denial by the CA, Corinthian filed for Certiorari, im-pleading the Cuasos as one of the respondents in the third party complaint in the RTC. Both submitted their respective memorandums to the SC.

ISSUE RELEVANT TO RULE 129:W/n the CA had legal basis to unilaterally increase the amount of the adjudged rent from P2,000.00 to P10,000.00 (which was not prayed for by the Tanjang-cos in their complaint and in the absence of evidence adduced by the parties)? YES

RULING: The Tanjangcos opine that a court can take ju-dicial notice of the general increase in the rentals of real estate, as in this case, where the CA considered the value of their lot in the "posh-and-swank"

Corinthian Gardens Subdivision and the fact that they were deprived of it for almost two decades. The Tan-jangcos pray that this Court sustain the ruling of the CA.

On this issue, the ruling in Spouses Badillo v. Tayag is instructive:

Petitioners argue that the MTC may take judicial notice of the reasonable rental or the general price increase of land in order to determine the amount of rent that may be awarded to them. In that case, however, this Court relied on the CA's factual find-ings, which were based on the evidence presented before the trial court. In determining reasonable rent, the RTC therein took account of the following factors: 1) the realty assessment of the land, 2) the increase in realty taxes, and 3) the prevailing rate of rentals in the vicinity. Clearly, the trial court re-lied, not on mere judicial notice, but on the evi-dence presented before it.

[C]ourts may fix the reasonable amount of rent for the use and occupation of a disputed property. However, petitioners herein erred in assuming that courts, in determining the amount of rent, could simply rely on their own appreciation of land values without considering any evidence. As we have said earlier, a court may fix the reasonable amount of rent, but it must still base its action on the evi-dence adduced by the parties.

Also, in Herrera v. Bollos the Court declared that the reasonable amount of rent could be deter-mined not by mere judicial notice, but by support-ing evidence:

x x x A court cannot take judicial notice of a factual matter in controversy. The court may take judicial notice of matters of public knowledge, or which are capable of unquestionable demonstration, or ought to be known to judges because of their judicial functions. Before taking such judicial notice, the court must "allow the parties to be heard thereon."

Hence, there can be no judicial notice on the rental value of the premises in question without sup-porting evidence. Truly, mere judicial notice is inade-quate, because evidence is required for a court to de-termine the proper rental value.

Now, contrary to Corinthian's arguments, both the RTC and the CA found that indeed rent was due the Tanjangcos because they were deprived of possession and use of their property. This uniform factual finding of the RTC and the CA was based on the evidence pre-sented below. Moreover, in Spouses Catungal v. Hao, we considered the increase in the award of rentals as reasonable given the particular circumstances of each case. We noted therein that the respondent denied the petitioners the benefits, including rightful possession, of their property for almost a decade.

Similarly, in the instant case, the Tanjangcos were deprived of possession and use of their property for more than two decades through no fault of their own. Thus, we find no cogent reason to disturb the monthly rental fixed by the CA. All told, the CA commit-ted no reversible error.

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emedial Law ReviewRSALVADOR Digests

SOCIAL JUSTICE SOCIETY et al. v. ATIENZA

Note: this digest only contains facts, issue, and ratio in relation to the topic under which it was assigned.

FACTS: Herein petitioners (SJS, Cabigao, Tumbokon) filed a case for mandamus (Rule 65) to compel then Mayor Atienza to enforce Ordinance 8027, which was enacted in November 2001. Under the said Ordinance, certain areas in Manila were reclassified from industrial to commercial area. As such, the businesses of certain groups, including petroleum companies (Chevron, Petron and Shell are intervenors in the case, since they were affected) became disallowed. The ordinance di-rected them to cease and desist from operating in the Pandacan Terminals. Later, a Memorandum of Under-standing (MOU) was entered into between the Dept of Energy and the oil companies, which was to be effec-tive only for 6 months. The agreement was to the ef-fect that there would be only a ‘scaling down’ of the Pandacan terminals, and for this purpose, special busi-ness permits were issued to the oil companies. The MOU was extended for a number of months. (This is why the petitioners filed a mandamus case - to compel the Mayor to enforce the Ordinance instead). In 2007, the SC ruled that it was ministerial for the mayor to en-force all ordinances.

The 3 oil companies and the DOE filed an MR. This case is the resolution of such MR. as it turns out, in the beginning, the 3 companies filed a complaint in the Manila RTC to have the Ordinance annulled. The court issued a preliminary injunction, ordering the Mayor to refrain from enforcing the Ordinance.

Years after (in 2006), Ordinance 8119 known as the Manila Comprehensive Land Use Plan and Zon-ing Ordinance was enacted. Because of this new Ordi-nance, the oil companies filed new complaints to nullify it and they filed motions to withdraw their earlier com-plaint (the one for nullifying the original ordinance). In effect, their argument was that the later ordinance su-perseded that first one, such that it was error for the SC to rule that the Mayor should enforce the first ordi-nance. (recall the SC ruling in the first paragraph of this digest)

Issue: was the first Ordinance superseded by the sec-ond one? – No.[should courts take mandatory judicial notice of local ordinances? – No]

Ruling: The 2007 decision did not take into considera-tion the passage of the second Ordinance. The simple reason was that the SC was never informed about this ordinance.

While courts are required to take judicial notice of the laws enacted by Congress, the rule with respect to local ordinances is different. Ordinances are not in-cluded in the enumeration of matters covered by mandatory judicial notice under Section 1, Rule 129 of the Rules of Court.

Section 50 of RA 409provides that: “Judicial no-tice of ordinances. - All courts sitting in the city shall

take judicial notice of the ordinances passed by the SangguniangPanglungsod.”However, this cannot be taken to mean that the SC, since it has its seat in the City of Manila, should have taken steps to procure a copy of the ordinance on its own, relieving the party of any duty to inform the Court about it. Because even where there is a statute that requires a court to take judicial notice of municipal ordinances, a court is not required to take judicial notice of ordinances that are not before it and to which it does not have access. The party asking the court to take judicial notice is obli-gated to supply the court with the full text of the rules the party desires it to have notice of.Counsels should take the initiative in requesting that a trial court take judicial notice of an ordinance even where a statute re-quires courts to take judicial notice of local ordinances.

The failure to present the Ordinance is inexcus-able.

G HOLDINGS V. NATIONAL MINES

FACTS:The petitioner, “G” Holdings, Inc. (GHI), is a do-mestic corporation primarily engaged in the business of owning and holding shares of stock of different com-panies. MMC was incorporated by the Development Bank of the Philippines (DBP) and the Philippine Na-tional Bank (PNB) on account of their foreclosure of Marinduque Mining and Industrial Corporation’s assets. Pursuant to a Purchase and Sale Agreement executed between GHI and Asset Privatization Trust (APT), the former bought ninety percent (90%) of MMC’s shares and financial claims. These financial claims were con-verted into three Promissory Notes issued by MMC in favor of GHI totaling P500M and secured by mortgages over MMC’s properties. Upon the signing of the Pur-chase and Sale Agreement and upon the full satisfac-tion of the stipulated down payment, GHI immediately took physical possession of the mine site and its facili-ties, and took full control of the management and oper-ation of MMC.

Almost four years thereafter, a labor dispute arose between MMC and NAMAWU. Labor secretary (Quisumbing) said that there was illegal dismissal and that MMC committed unfair labor practice. He then or-dered the reinstatement of the laid-off workers, with payment of full backwages and benefits, and directed the execution of a new collective bargaining agree-ment (CBA) incorporating the terms and conditions of the previous CBA providing for an annual increase in the workers’ daily wage. In two separate cases filed with this Court, we sustained the validity of the Quisumbing Order, which became final and executory. Then DOLE Secretary Arturo D. Brion, on motion of NA-MAWU, directed the issuance of a partial writ of execu-

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emedial Law ReviewRSALVADOR Digeststion (Brion Writ), and ordered the DOLE sheriffs to pro-ceed to the MMC premises for the execution of the same. The Brion Writ was not fully satisfied because MMC’s resident manager resisted its enforcement. On motion of NAMAWU, then DOLE Secretary Patricia A. Sto. Tomas ordered the issuance of an Alias Writ of Ex-ecution and Break-Open Order (Sto. Tomas Writ). On October 11, 2002, the respondent acting sheriffs, the members of the union, and several armed men imple-mented the Sto. Tomas Writ, and levied on the proper-ties of MMC located at its compound in Sipalay, Negros Occidental.

GHI filed a for Contempt with Prayer for the Is-suance of a TRO and Writ of Preliminary Injunction and to Nullify the Sheriff’s Levy on Properties. GHI con-tended that the levied properties were the subject of a Deed of Real Estate and Chattel Mortgage, executed by MMC in favor of GHI to secure the aforesaid P550M promissory notes; that this deed was registered on February 24, 2000; and that the mortgaged properties were already extrajudicially foreclosed in July 2001 and sold to GHI as the highest bidder.

The CA ruled, among others, that the circum-stances surrounding the execution of the September 5, 1996 Deed of Real Estate and Chattel Mortgage yielded the conclusion that the deed was sham, fictitious and fraudulent; that it was executed two weeks after the la-bor dispute arose in 1996, but surprisingly, it was reg-istered only on February 24, 2000, immediately after the Court affirmed with finality the Quisumbing Order. The CA also found that the certificates of title to MMC’s real properties did not contain any annotation of a mortgage lien, and, suspiciously, GHI did not intervene in the long drawn-out labor proceedings to protect its right as a mortgagee of virtually all the properties of MMC.

The CA further ruled that the subsequent fore-closure of the mortgage was irregular, effected pre-cisely to prevent the satisfaction of the judgment against MMC.

ISSUE: To decide whether or not CA committed GADLEJ, the Court has to determine whether or not GHI and MMC are one and the same company and whether or not the alleged mortgages were valid mortgages. To do this, must the court consider its previous decisions related to the matter? Must it take judicial notice? YES.

HELD: Judicial notice must be taken by this Court of its Decision in Maricalum Mining Corporation v. Hon. Ar-

turo D. Brion and NAMAWU, in which we upheld the right of herein private respondent, NAMAWU, to its la-bor claims. Upon the same principle of judicial notice, we acknowledge our Decision in Republic of the Philippines, through its trustee, the Asset Privatization Trust v. “G” Holdings, Inc., in which GHI was recognized as the rightful purchaser of the shares of stocks of MMC, and thus, entitled to the delivery of the company notes accompanying the said purchase. These com-pany notes, consisting of three (3) Promissory Notes, were part of the documents executed in 1992 in the privatization sale of MMC by the Asset Privatization Trust (APT) to GHI. Each of these notes uniformly con-tains stipulations “establishing and constituting in favor of GHI” mortgages over MMC’s real and personal prop-erties. The stipulations were subsequently formalized in a separate document denominated Deed of Real Es-tate and Chattel Mortgage on September 5, 1996. Thereafter, the Deed was registered on February 4, 2000.

We find both decisions critically relevant to the instant dispute. In fact, they should have guided the courts below in the disposition of the controversy at their respective levels. To repeat, these decisions re-spectively confirm the right of NAMAWU to its labor claims and affirm the right of GHI to its financial and mortgage claims over the real and personal properties of MMC, as will be explained below. The assailed CA decision apparently failed to consider the impact of these two decisions on the case at bar. Thus, we find it timely to reiterate that: “courts have also taken judicial notice of previous cases to determine whether or not the case pending is a moot one or whether or not a previous ruling is applicable to the case under consid-eration.”

However, the CA correctly assessed that the authority of the lower court to issue the challenged writ of injunction depends on the validity of the third party’s (GHI’s) claim of ownership over the property subject of the writ of execution issued by the labor department. Accordingly, the main inquiry addressed by the CA de-cision was whether GHI could be treated as a third party or a stranger to the labor dispute, whose proper-ties were beyond the reach of the Writ of Execution dated December 18, 2001.

In this light, all the more does it become imper-ative to take judicial notice of the two cases aforesaid, as they provide the necessary perspective to deter-mine whether GHI is such a party with a valid owner-ship claim over the properties subject of the writ of ex-ecution. In Juaban v. Espina, we held that “in some instances, courts have also taken judicial notice of pro-ceedings in other cases that are closely connected to

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emedial Law ReviewRSALVADOR Digeststhe matter in controversy. These cases may be so closely interwoven, or so clearly interdependent, as to invoke a rule of judicial notice.” The two cases that we have taken judicial notice of are of such character, and our review of the instant case cannot stray from the findings and conclusions therein.

(REGARDING THE MERITS: Court ruled that the mort-gage was valid, hence at that time, MMC had no more properties to attach. Also, just because the GH bought majority of the shares of the MMC is not valid reason per se to pierce the veil of corporate fiction.)

SPOUSES LATIP VS CHUA

C. JUDICIAL ADMISSION

SOCIAL JUSTICE SOCIETY vs. ATIENZA

Facts: An ordinance was passed by the Sangguniang Panlungsod of Manila. This ordinance reclassified a cer-tain area from industrial to commercial. This area in-cluded the “Pandacan Terminals” owned by the certain oil companies (Chevron, Petron and Shell). The ordi-nance directed the owners of businesses located within the reclassified area to cease and desist their opera-tions within 6 months from the effectivity of the ordi-nance. Aggrieved, the oil companies filed separate complaints for the annulment of the ordinance. In the case filed by Petron, the parties filed a joint motion to withdraw complaint and counterclaim, which was granted.

Thereafter, the city of Manila passed another ordinance called the Manila Comprehensive Land Use Plan and Zoning Ordinance of 2006 (I think this was ba-sically the same with the previous ordinance). So again, the oil companies filed several complaints chal-lenging the validity of this new ordinance.

The oil companies are now arguing that the subsequent ordinance had repealed the earlier one. They argue that in the case filed by Petron where the parties filed a joint motion to withdraw, it was stated therein that “the issue… has been rendered moot and academic by the passage of [the subsequent ordi-nance].” In addition, they also argue that in one of the complaints filed against the subsequent ordinance, the city of Manila mentioned in its answer that “[the earlier ordinance], which in effect, replaced [the subsequent ordinance]…” Hence, they argue that this was tanta-mount to an admission by the city of Manila that the new ordinance repealed the old one.

Issue: W/N the city of Manila made an admission that the subsequent ordinance repealed the older one. NO!

Held/Ratio:Rule 129, Section 4

Judicial admissions. ― An admission, verbal or written, made by a party in the course of the proceed-ings in the same case, does not require proof. The ad-mission may be contradicted only by showing that it was made through palpable mistake or that no such admission was made.

Judicial admission – must be made in the same case in which it is offered

While it is true that a party making a judicial admission cannot subsequently take a position con-trary to or inconsistent with what was pleaded, the Rule 129, Section 4 is not applicable here. The city of Manila made the statements regarding the ordinances in the civil cases (complaints for annulment of the ordi-nance) which are not "the same" as this case before the SC. To constitute a judicial admission, the admis-sion must be made in the same case in which it is of-fered.

Hence, the city of Manila is not estopped from claiming the new ordinance repealed the older one. On the contrary, it is the oil companies which should be considered estopped. They rely on the argument that latter ordinance superseded the older one but, at the same time, also impugn its (the subsequent ordi-nance’s) validity. Parties cannot take vacillating or con-trary positions regarding the validity of a statute or or-dinance.

CUENCO V TALISAY TOURIST SPORTS COMPLEX

FACTS: Cuenco leased from Talisay the Talisay Tourist Sports Complex for 2 years to be used as cockpit arena. The contract of lease was subsequently re-newed for 4 years. Cuenco made a deposit equivalent to 6 months rental or five hundred thousand pesos. The deposit was for the purpose of answering any dam-age which may be caused to the complex.

Upon expiration of the contract, the lease was awarded to another lessee. This promted Cuenco to de-mand the return of the deposit. After 4 demands which were all unheeded, Cuenco instituted an action for the collection of a sum of money with the RTC. RTC ruled in favor of Cuenco.

On appeal, the CA reversed and set aside the RTC judgment.

On appeal, the SC reinstated the RTC judgment but modifying it by ordering Talisay to deduct 2 months worth of rental from the deposit after finding that Cuenco overstayed for 2 months. Both parties filed their respective MR’s. Cuenco claims that he did not overstay while Talisay claims that an additional amount be still deducted from the deposit representing the expense it incurred in renovating the facility.

ISSUE: Whether or not Cuenco in fact overstayed for 2 months – YES

HELD: It is elementary that the Supreme Court is not a trier of facts especially if appeal has been taken by way of petition for review on certiorari under rule 45. However, as an exception, the SC may review findings

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emedial Law ReviewRSALVADOR Digestsof facts of the findings of the RTC differ from that of the CA

Borne out by the records of the case is the tes-timony of Ateniso Coronado that Cuenco continued to hold cockfights for two months beyond the expiration of the lease contract. Such declaration was neither questioned nor denied by petitioner during the trial of the case in the RTC and on appeal before the CA. Nei-ther was it contested by petitioner in his Memorandum filed with this Court. In effect, such declaration consti-tutes a judicial admission and may not be refuted any-more.

TOSHIBA V CIR

FACTS: Toshiba is registered with PEZA as an Economic Zone (ECOZONE) export enterprise. It is also registered with BIR as a VAT-taxpayer. As a tax-exempt entity and with its export sales VAT-exempt, Toshiba wants to claim for credit/refund of its unutilized input VAT pay-ments attributable to its export sales. CIR opposes this claim, stating that Toshiba failed to show that the total amount claimed as VAT input taxes are properly sub-stantiated by official receipts and invoices, and have been offset against any output tax. It also said that Toshiba is not entitled to the credit/refund of its input VAT payments because, being a PEZA-registered ECO-ZONE export enterprise, Toshiba is not subject to VAT. Well-established is the rule that claims for refund/tax credit are construed in strictissimi ju-ris against the taxpayer as it partakes the nature of ex-emption from tax. During the trial before the CTA, Toshiba presented documentary evidence in support of its claim for tax credit/refund, while the CIR did not present any evidence at all.

Issue: Is Toshiba VAT-registered and are its export sales subject to zero-rated VAT? – Yes.

Held: The arguments of the CIR that Toshiba is VAT-ex-empt and the latter’s export sales are VAT-exempt transactions are inconsistent with the explicit admis-sions of the CIR in the Joint Stipulation of Facts and Is-sues (Joint Stipulation) that Toshiba is a registered VAT entity and that it is subject to zero percent (0%) VAT on its export sales.1 The CIR is bound by these admis-sions, which it could not eventually contradict in its MR.

The Joint Stipulation was executed and submit-ted by Toshiba and the CIR upon being advised to do so by the CTA at the end of the pre-trial conference. The approval of the Joint Stipulation by the CTA marked the start of the pre-trial process. Under Rule 18, sec. 2(d), part of the purposes of pre-trial is the possibility of obtaining stipulations or admissions of facts and of documents to avoid unnecessary proof.

The admission having been made in a stipula-tion of facts at pre-trial by the parties, it must be

1 Toshiba “is a duly registered value-added tax entity in ac-cordance with Section 107 of the Tax Code, as amended[,]” that “is subject to zero percent (0%) value-added tax on its export sales in accordance with then Section 100(a)(2)(A) of the Tax Code, as amended.”

treated as a judicial admission. Section 4, Rule 129 provides that a judicial admission requires no proof. The admission may be contradicted only by a showing that it was made through palpable mistake or that no such admission was made. The Court cannot lightly set aside a judicial admission especially when the opposing party relied upon the same and accord-ingly dispensed with further proof of the fact already admitted.

Absent finding of the commission of a mistake, much more, of a palpable one, the Court holds that the CIR cannot escape the binding effect of its judicial ad-missions. The CIR does not deny that his counsel, Rev-enue Attorney Biazon of the BIR, signed the Joint Stipu-lation, together with the counsel of Toshiba. Consider-ing the presumption of regularity in the performance of official duty, Atty. Biazon is presumed to have read, studied, and understood the contents of the Joint Stipu-lation before he signed the same. It rests on the CIR to present evidence to the contrary, which it failed to do so.

Further, the judicial admissions of the CIR in the Joint Stipulation are not intrinsically false, wrong, or illegal. On the contrary, they are consistent with the ruling of this Court in a previous case involving the same parties, CIR v Toshiba, explaining the VAT treat-ment of PEZA-registered enterprises.

An admission made by a party in the course of the proceedings does not require proof. Thus, in light of the judicial admissions of Toshiba, the CTA correctly confined itself to the other factual issues submitted for resolution by the parties.

D. PARAFFIN TEST

MARTURILLAS V. PEOPLE

FACTS: Marturillas, a barangay capt. in Davao City, was charged with homicide, for the shooting of the victim Artemio Pantinople. Basically, around 7:30pm at the night of the incident, witness Lito Santos, neighbor of Artemio, heard a gunshot while eating supper. When he looked outside, he noticed smoke and fire coming from the muzzle of a big gun, which was about 10 me-ters away. Moments later, Lito saw Artemio clasping his chest and staggering towards his (Lito’s) kitchen, while shouting “Help me, I was shot by the captain.” Lito however did not approach Artemio right after the shooting because his own wife warned him that he might also be shot. Lito then saw Artemio’s wife, Ernita, who shouted and cried, “Kapitan, bakit mo binaril ang aking asawa?” Lito did not see who the shooter was, but Ernita, who also testified during trial, saw appellant Marturillas carrying with him a long firearm, which looked like an M-14 rifle. She testified that she had a clear view of Marturillas at that time since the place was well illuminated. Immediately after the shooting in-cident, Ernita called out to her neighbors for help. When the police arrived at the scene, Ernita informed them that it was Marturillas who was responsible for the shooting. With this information, the police went to the house of Marturillas and informed him that he was a suspect in the killing of Artemio. Marturillas was in-

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emedial Law ReviewRSALVADOR Digestsvited to go to the police station and was asked by the police to bring with him his M-14 rifle, to which the ac-cused-appellant complied. Marturillas was then sub-jected to paraffin testing by the PNP Crime Lab the day after the shooting incident. The next day, the results of the paraffin test were released which found Marturillas NEGATIVE for gunpowder nitrates. After trial, the RTC found Marturillas guilty beyond reasonable doubt. On appeal, the CA affirmed the RTC decision, saying that Marturillas was positively identified as the person run-ning away from the crime scene immediately after the gunshot. This fact, together with the declaration of the victim himself that he had been shot by the captain, clearly established the latter’s complicity in the crime. Now with the SC, Marturillas contends that there should have been no finding of guilt because of the negative results of the paraffin test and that the prose-cution miserably failed to establish the type of gun used in the commission of the crime.

ISSUE: W/N Marturillas should be acquitted on the ground of the negative results of the paraffin test. – NO.

RATIO: While they were negative, that fact alone did not ipso facto prove that he was innocent. Time and time again, the SC has held that a negative paraffin test result is not a conclusive proof that a person has not fired a gun. In other words, it is possible to fire a gun and yet be negative for nitrates, as when culprits wear gloves, wash their hands afterwards, or are bathed in perspiration. Besides, the prosecution was able to establish the events during the shooting, in-cluding the presence of petitioner at the scene of the crime. Hence, all other matters, such as the negative paraffin test result, are of lesser probative value. As long as the prosecution has presented sufficient proof of the corpus delicti, even the failure to conduct a paraffin test is not fatal to its case. In another case, the SC has ruled that: "Anent the failure of the investiga-tors to conduct a paraffin test on petitioner, this Court has time and again held that such failure is not fatal to the case of the prosecution as scientific experts agree that the paraffin test is extremely unreliable and it is not conclusive as to an accused ’ s complicity in the crime committed."

E. PHOTOGRAPH AS EVIDENCE

ARMANDO JOSE AND MANILA CENTRAL BUS LINES V. CA – January 18, 2000

FACTS: Armando Jose is a Bus driver of Manila Central Bus Lines. The bus collided with a red Ford escort driven by John Macarubo, a passenger on said car was private respondent Rommel Abraham. Macarubo died in the hospital, while Abraham lost his left eye and suf-fered a head fracture.

Heirs of Macarubo and Abraham sued Jose and Bus Co. for damage. On the other hand Bus Co. filed third party complaint against Juanita Macarubo, the owner of the Ford escort who likewise filed a counter-claim against the Bus Co. for damages to her car.

The RTC ruled in favor of the Bus Co., dismiss-ing the complaint for damages of Macarubo and Abra-ham. RTC ordered Juanita Macarubo to pay for the damages to the bus.

The RTC held that Macarubo and Abraham came from a party the night before. The Ford Escort broke down at around 11PM in the evening and had to be repaired and when it was repaired it was already 6AM. Thus the RTC held that at that time, Macarubo was already tired and he must have been speeding to get home quickly. This conclusion was supported by 3 pictures that showed that the Bus was at the right lane and the position of the car indicated that it was over-taking at the time of the accident.

CA reversed and held the Bus Co liable. It ruled that the photographs were taken an hour after the col-lision and the position of the vehicles could have been changed in the interim. Moreover, the pictures do not show that Macarubo was overtaking at the time of the accident and that he was negligent.

ISSUE: Who is at fault? Macarubo and not the Bus.

HELD: The trial court was justified in relying on the photographs rather than on Abraham’s testimony which was obviously biased and unsupported by any other evidence. Physical evidence is a mute but an elo-quent manifestation of truth, and it ranks high in our hierarchy of trustworthy evidence. Physical evidence on record should prevail over testimony that runs counter to it.

Here, the positions of the two vehicles, as shown in the photographs taken by the Bus Co.’s in-spector about an hour after the collision, disputes Abraham’s self-serving testimony that the two vehicles collided because the Bus invaded the lane of the Ford Escort and clearly shows that the case is exactly the opposite of what he claimed happened.

Contrary to Abraham’s testimony, the photo-graphs show clearly that Bus was in its proper lane and that it was the Ford Escort which usurped the opposite lane. The three photographs show the Ford Escort posi-tioned diagonally on the highway, with its two front wheels occupying Bus’s lane.

Moreover, the testimony of Abraham shows that more likely the reason for the accident was a me-chanical defect of the Ford Escort due to the failure of Macarubo to properly repair the vehicle. The defect was in the cross-joint of the car which should have been replaced but was merely welded in order for them to get home quickly.

F. BEST EVIDENCE RULE/SECONDARY EVIDENCE

EDSA SHANGRI-LA HOTEL AND RESORT, INC. et al. v. BF CORPORATION

FACTS: These are 2 consolidated petitions where the 1st petition is Edsa Shang, Colayco, Samaniego, Chen, and Tsen. The petitioner in the 2nd petition is Cynthia Del Castillo.

EDHRI entered into a constraction contract with BF, where BF was to construct the EDSA Shanri-la Ho-

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emedial Law ReviewRSALVADOR Digeststel. Among other things, the contract stipulate for the payment of the contract price on the basis of monthly progress billing to ESHRI, which would then re-measure the work accomplished and prepare a Progress Pay-ment Certificate for that month’s progress billing.

The procedure for BF to collect was it should submit a PROGRESS BILLING to ESHRI’s Engineering dept. first, and then ESHRI should prepare a Progress Payment Certificate after re-measuring the progress done, so BF should follow up release of its payment. From May 1, 1991 to June 30, 1992, BF adhered to this process. It submitted a total of 19 progress billings. Based on PB Nos. 1-13, ESHRI paid P86.5 million.

However, for PB Nos. 14-19, BF alleges that ESHRI did not re-measure the work done and did not remit payment. In this regard, BF claimed having been misled into working continuously on the project by the assurance of ESHRI that it is processing its progress payment certificates.

After futile attempts to collect unpaid billings, BF filed a suit for a sum of money and damages. ESHRI in its defense, asked BF to refund excess payments overpaid supposedly for PB Nos. 1-13. They also al-leged incurring delay and inferior work accomplish-ment.

RTC ruled in favor of BF. It the dispositive por-tion it held Colayco, Samaniego, Dean Del, Chan and Tsen solidarily liable to pay P24.7 million, retention sum of P5.8 million, interest, P1M moral and P1M ex-emplary damages and P1M attys fees. RTC held that ESHRI’s refusal to pay BF’s claims is evident of bad faith. MR denied.

Appeal to the CA. Meanwhile, the RTC granted BF’s motion for execution pending appeal and ESHRI’s PNB bank account was garnished for the amount of P35M. CA issued a writ of preliminary injunction to en-join the RTC to lift the garnishment. The CA later on set aside the garnishment order. But CA affirmed the deci-sion of the RTC. CA held that ESHRI was remiss in its obligation to re-measure BF's later work accomplish-ments and pay the same. On the other hand, ESHRI had failed to prove the basis of its disclaimer from lia-bility, such as its allegation on the defective work ac-complished by BF.

ISSUE: W/N the lower courts erred in allowing the ad-mission in evidence of PHOTOCOPIES of Progress Billings Nos. 14-19, as well as the complementing PMIs and WVOs. ESHRI alleges that BF failed to lay the basis for the presentation of the photocopies as secondary evidence, conformably to the best evidence rule. BF however claims that said documents were in the pos-session of ESHRI which refused to hand them over to BF despite requests.

HELD/RATIO: ADMISSIBLEThe only actual rule that the term "best evi-

dence" denotes is the rule requiring that the original of a writing must, as a general proposition, be pro-duced17 and secondary evidence of its contents is not admissible except where the original cannot be had. Rule 130, Section 3 of the Rules of Court enunciates the best evidence rule:

SEC. 3. Original document must be produced; exceptions. - When the subject of inquiry is the contents of a document, no evidence shall be admissible other than the original document it-self, except in the following cases: (b) When the original is in the custody or under the control of the party against whom the evi-dence is offered, and the latter fails to produce it after reasonable notice;

Complementing the above provision is Sec. 6 of Rule 130, which reads:

SEC. 6. When original document is in adverse party's custody or control. - If the document is in the custody or under control of the adverse party, he must have reasonable notice to pro-duce it. If after such notice and after satisfac-tory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of loss.Secondary evidence of the contents of a writ-

ten instrument or document refers to evidence other than the original instrument or document itself.18 A party may present secondary evidence of the contents of a writing not only when the original is lost or de-stroyed, but also when it is in the custody or under the control of the adverse party. In either instance, how-ever, certain explanations must be given before a party can resort to secondary evidence.

Four factual premises are readily deducible from the exchanges between the lawyers of the re-spective parties, to wit: (1) the existence of the original documents which ESHRI had possession of; (2) a re-quest was made on ESHRI to produce the documents; (3) ESHRI was afforded sufficient time to produce them; and (4) ESHRI was not inclined to produce them.

Clearly, the circumstances obtaining in this case fall under the exception under Sec. 3(b) of Rule 130. In other words, the conditions sine qua non for the presentation and reception of the photocopies of the original document as secondary evidence have been met. These are: (1) there is proof of the original docu-ment's execution or existence; (2) there is proof of the cause of the original document's unavailability; and (3) the offeror is in good faith.

Mere fact that the original of the writing is in the custody of the party against whom it is offered does not warrant submission of secondary evidence. It must be proven that the offeror has done everything in his power to secure the best evidence but the other party refuses to produce it.

CONCEPCION CHUA GAW V. SUY BEN CHUA (2008)

Facts:• Spouses Chua Chin and Chan Chi were founders of

3 business enterprises: Hagonoy Lumber, Capitol Sawmill Corporation, and Columbia Wood Indus-tries. They had 7 children, including respondent Suy Ben Chua and petitioner Concepcion Chua Gaw. On June 19, 1986, Chua Chin died leaving Chan Chi and his 7 children his only surviving

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emedial Law ReviewRSALVADOR Digestsheirs. At that time, the net worth of Hagonoy Lum-ber was P415, 487.20.

• On Dec. 8, 1986, the heirs execute a Deed of Ex-tra-Judicial Partition and Renunciation of Heredi-tary Rights in Favor of a Co-Heir, wherein the heirs voluntarily renounced and waived their shares (in-cluding Chan Chi’s ½ share by virtue of her share in the conjugal partnership) in Hagonoy Lumber in favor of their co-heir Chua Sioc Huan.

• In May 1988, petitioner Chua Gaw and her hus-band Antonio Gaw asked respondent Suy Ben to lend them P200T for the construction of their house in Marilao, Bulacan. The parties agreed that the loan will be payable within 6 months w/o inter-est. Suy Ben issued in their favor a check for P200T which he delivered to the couple’s house in Marilao.

• On Aug. 1990, Chua Sioc Huan executed a Deed of Sale over all her rights and interests in Hagonoy Lumber for a consideration of P255T in favor of Suy Ben.

• Because the spouses Gaw failed to settle their obligation with Suy Ben, he filed a Complaint for Sum of Money against the spouses Gaw with the RTC.

• In their Answer (w/ Amended Compulsory Counter-claim), the spouses Gaw claimed that the P200T was not a loan but their share in the profits of Hagonoy Lumber. They insisted that Concepcion Chua Gaw, as one of the compulsory heirs, is enti-tled to 1/6 of Hagonoy Lumber which Suy Ben ar-rogated to himself. They thus prayed that Suy Ben make an accounting of the operations of Hagonoy Lumber and deliver to Concepcion Gaw her 1/6 share thereof, which was estimated to be P500T.

• In his Answer to the Amended Counterclaim, Suy Ben explained that his sister Chua Sioc Huan be-came the sole owner of Hagonoy Lumber when they executed the Deed of Partition. In turn, he became the sole owner when he bought it from Chua Sioc Huan, as evidenced by the Deed of Sale.

• During trial, the spouses Gaw called Suy Ben to testify as adverse witness under Sec 10, Rule 132. On direct examination, Suy Ben testified that Hagonoy Lumber was the conjugal property of his parents and that he is the current owner of the lots where Hagonoy Lumber is operating. On cross-examination, Suy Ben explained that he ceased to be a stockholder of Capitol Sawmill when he sold his shares to the other stockholders. He also testified that Chua Sioc Huan acquired Hagonoy Lumber by virtue of a Deed of Partition, executed by the heirs of Chua Chin. In turn, he be-came the owner of Hagonoy Lumber when he bought it from Chua Sioc Huan through a Deed of Sale. On re-direct examination, Suy Ben stated that he sold his shares in Capitol Sawmill for P254T (in cash) and paid the purchase price of P255T for Hagonoy Lumber (in cash) but said pay-ment was not covered by a separate receipt but merely delivered the payment to Chua Sioc Huan

at her house Valenzuela. Although he maintains several accounts in 3 banks, the amount he paid to Chua Sioc Huan was not taken from any of them since he had enough cash in his house be-cause he was engaged in rediscounting checks of people from the public market.

• On Dec. 1998, Antonio Gaw died.• RTC rendered a Decision in favor of Suy Ben and

denied Concepcion Gaw’s counterclaim. The RTC held that the validity and due execution of the Deed of Partition and the Deed of Sale was never impugned. It said that even if Suy Ben failed to produce the originals of the document, Concep-cion Gaw judicially admitted the due execution of the Deed of Partition and acknowledged her signa-ture thereon, thus constituting an exception to the best evidence rule. As for the Deed of Sale, since the contents thereof were not put in issue, the RTC said that non-presentation of the original doc-ument is not fatal so as to affect its authenticity as well as the truth of its contents.

• On appeal, the CA affirmed the decision of the RTC. The CA found petitioner’s argument that the RTC should have not included Suy Ben’s testimony as part of her evidence baseless.

• Petitioner Concepcion Gaw filed this petition for review on certiorari assailing the CA decision. Gaw contends that her case was unduly prejudiced by the RTC’s treatment of Suy Ben’s testimony as ad-verse witness during cross-examination by his own counsel as part of her evidence.

Issues: 1. Whether there was error in the application of

Rule 132 Section 10 (d) and (e)? No.2. Whether there was error in the application of

the “best evidence rule” under Rule 130 Sec-tion 3? No.

Held: Petition denied.

Rule 132 Section 10 (d) and (e)

Gaw’s case was not prejudiced by the RTC’s treatment of Suy Ben’s testimony during cross-examination as her evidence.

The delineation of a piece of evidence as part of the evidence of one party or the other is only signifi-cant in determining whether the party on whose shoul-ders lies the burden of proof was able to meet the quantum of evidence needed to discharge the burden. In civil cases, that burden devolves upon the plaintiff who must establish her case by preponderance of evi-dence. Thus, it barely matters who with a piece of evi-dence is credited. In the end, the court will have to consider the entirety of the evidence presented by both parties. Preponderance of evidence is then deter-mined by considering all the facts and circumstances of the case, culled from the evidence, regardless of who actually presented it .

That the witness is the adverse party does not necessarily mean that the calling party will not be bound by the former's testimony. Unlike an ordinary

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emedial Law ReviewRSALVADOR Digestswitness, the calling party may impeach an adverse wit-ness in all respects as if he had been called by the ad-verse party, except by evidence of his bad character. Under a rule permitting the impeachment of an ad-verse witness, although the calling party does not vouch for the witness' veracity, he is nonetheless bound by his testimony if it is not contradicted or re-mains unrebutted.

A party who calls his adversary as a witness is, therefore, not bound by the latter's testimony only in the sense that he may contradict him by introducing other evidence to prove a state of facts contrary to what the witness testifies on. A rule that provides that the party calling an adverse witness shall not be bound by his testimony does not mean that such testimony may not be given its proper weight, but merely that the calling party shall not be precluded from rebutting his testimony or from impeaching him. This, the peti-tioner failed to do. Petitioner, by her own testimony, failed to discredit the respondent's testimony on how Hagonoy Lumber became his sole property.

The “best evidence rule” under Rule 130 Section 3

The RTC's finding that the P200T was as a loan is sup-ported by the evidence on record.

The allegation that the P200T was advance on her share in the profits of Hagonoy Lumber is implausi-ble. When the Suy Ben delivered to the petitioner the P200T check, it could not have been given as an ad-vance on petitioner's share in the business, because at that moment in time both of them had no participation, interest or share in Hagonoy Lumber.

It is also worthy to note that both the Deed of Partition and the Deed of Sale were acknowledged be-fore a Notary Public. The notarization of a private docu-ment converts it into a public document, and makes it admissible in court without further proof of its authen-ticity. It is entitled to full faith and credit upon its face. Such a document must be given full force and effect absent a strong, complete and conclusive proof of its falsity or nullity on account of some flaws or defects recognized by law. A public document executed and at-tested through the intervention of a notary public is, generally, evidence of the facts therein express in clear unequivocal manner.

Petitioner maintains that the RTC erred in ad-mitting in evidence a mere copy of the Deed of Parti-tion and the Deed of Sale in violation of the best evi-dence rule. The "best evidence rule" as encapsulated in Rule 130, Section 3, of the Revised Rules of Civil Pro-cedure applies only when the content of such docu-ment is the subject of the inquiry. Where the issue is only as to whether such document was actually exe-cuted, or exists, or on the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible. Any other substitutionary evidence is likewise admissible without need to account for the original. Moreover, pro-duction of the original may be dispensed with, in the trial court's discretion, whenever the opponent does not bona fide dispute the contents of the docu-ment and no other useful purpose will be served by re-quiring production.

Accordingly, we find that the best evidence rule is not applicable to the instant case. Here, there was no dispute as to the terms of either deed; hence, the RTC correctly admitted in evidence mere copies of the two deeds. The petitioner never even denied their due execution and admitted that she signed the Deed of Partition. As for the Deed of Sale, petitioner had, in effect, admitted its genuineness and due execution when she failed to specifically deny it in the manner re-quired by the rules. The petitioner merely claimed that said documents do not express the true agreement and intention of the parties since they were only provi-sional paper arrangements made upon the advice of counsel.

SASAN v. NLRC, E-PCIBank and HI(Citation in the syllabus is really wrong so I just got the nearest case to the title which discusses the relevant topic)

Facts: Respondent Equitable-PCI Bank (E-PCIBank) en-tered into a Contract for Services with Helpmate, Inc. (HI), a domestic corporation primarily engaged in the business of providing janitorial and messengerial ser-vices. Pursuant to their contract, HI shall hire and as-sign workers to E-PCIBank to perform janitorial/mes-sengerial and maintenance services. The contract was impliedly renewed year after year. Petitioners Rolando Sasan, Sr., Leonilo Dayday, Modesto Aguirre, Alejandro Ardimer, Eleuterio Sacil, Wilfredo Juegos, Petronilo Carcedo, and Cesar Peciencia were among those em-ployed and assigned to E-PCIBank at its branch along Gorordo Avenue, Lahug, Cebu City, as well as to its other branches in the Visayas.

Petitioners filed with the Arbitration Branch of the NLRC in Cebu City separate complaints against E-PCIBank and HI for illegal dismissal, with claims for separation pay, service incentive leave pay, al-lowances, damages, attorney's fees and costs. Later, they amended their complaints to include a claim for 13th month pay.

Petitioners claimed that they had become regu-lar employees of E-PCIBank with respect to the activi-ties for which they were employed, having continu-ously rendered janitorial and messengerial services to the bank for more than one year; that E-PCIBank had direct control and supervision over the means and methods by which they were to perform their jobs; and that their dismissal by HI was null and void because the latter had no power to do so since they had be-come regular employees of E-PCIBank.

E-PCIBank averred that it entered into a Con-tract for Services with HI, an independent job contrac-tor which hired and assigned petitioners to the bank to perform janitorial and messengerial services thereat. E-PCIBank could not be held liable for whatever misdeed HI had committed against its employees. HI, on the other hand, asserted that it was an independent job contractor.

The Labor Arbiter rendered a Decision finding that HI was not a legitimate job contractor on the ground that it did not possess the required substantial capital or investment to actually perform the job, work,

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emedial Law ReviewRSALVADOR Digestsor service under its own account and responsibility as required under the Labor Code. HI is therefore a labor-only contractor and the real employer of petitioners is E-PCIBank which is held liable to petitioners. Respon-dents E-PCIBank and HI appealed the same to the NLRC. In support of its allegation that it was a legiti-mate job contractor, HI submitted before the NLRC sev-eral documents which it did not present before Labor Arbiter Gutierrez (Certificate of Filing of Certificate of Increase of Capital Stock, Certificate of Filing Amended Articles of Incorporation, and General Information Sheet Stock Corporation of HI, Audited Financial State-ment of HI, Transfer Certificate of Title No. 110173 and Tax Declaration No. GR2K-09-063-00582 registered un-der the name of HI, Tax Declaration No. GR2K-09-063-00583 registered under the name of HI).

The NLRC promulgated its Decision modifying the ruling of the Labor Arbiter. The NLRC took into con-sideration the documentary evidence presented by HI for the first time on appeal and, on the basis thereof, declared HI as a highly capitalized venture with suffi-cient capitalization, which cannot be considered en-gaged in "labor-only contracting." CA affirmed.

Issue: Whether the CA erred in accepting and appre-ciating the pieces of evidence submitted by respon-dents during appeal – NO.

Held: The Court found no merit in petitioners' protesta-tions against the documentary evidence submitted by HI because they were mere photocopies. Evidently, pe-titioners are invoking the best evidence rule, espoused in Section 3, Rule130 of the Rules of Court. It provides that:

Section 3. - Original document must be produced; exceptions. - When the sub-ject of inquiry is the contents of a docu-ment, no evidence shall be admissible other than the original document itself x x x.

The above provision explicitly mandates that when the subject of inquiry is the contents of a docu-ment, no evidence shall be admissible other than the original document itself. Notably, certified true copies of these documents, acceptable under the Rules of Courtwere furnished to the petitioners. Even assum-ing that petitioners were given mere photocopies, again, we stress that proceedings before the NLRC are not covered by the technical rules of evidence and pro-cedure as observed in the regular courts. Technical rules of evidence do not apply if the decision to grant the petition proceeds from an examination of its suffi-ciency as well as a careful look into the arguments con-tained in position papers and other documents.

Petitioners had more than adequate opportu-nity when they filed their motion for reconsideration before the NLRC, their Petition to the Court of Appeals and even to this Court, to refute or present their counter-evidence to the documentary evidence pre-sented by HI. Having failed in this respect, petitioners cannot now be heard to complain about these docu-

mentary evidences presented by HI upon which the NLRC and the Court of Appeals based its finding that HI is a legitimate job contractor.

DECS V. DEL ROSARIO

Facts: The Del Rosario’s filed a complaint for recovery of possession against DECS alleging that the Kay-pombo Primary School (KPPS) was occupying a portion of the property of the Del Rosarios. DECS, in its de-fense, alleged that such property was donated by Isa-ias Del Rosario, the father of the Del Rosarios in this case.

DECS presented witnesses who saw that a deed of donation was executed by Judge Eli Natividad and that a resolution was signed in the office of the municipal mayor. However, the deed and the resolution got lost in the transfer of records in the old building to the new building.

The RTC ruled in favor of DECS stating that they were able to prove the due execution of the deed of donation and its acceptance, as well as the loss of the same, in accordance with the Rules on Evidence. It is recalled that Judge Eli Natividad, then a municipal councilor of Sta. Maria, testified that he was the person who prepared the deed of donation and later notarized the same, and that said deed was duly executed and signed before him and in his presence. They stated that a recantation/recollection of witness is a form of secondary evidence to prove the existence/content of a document. Since the loss of the deed subject matter of this case was likewise duly proved by DECS, exerting the best possible efforts to locate or secure a copy of the same and without bad faith on its part, the RTC a greater weight to the secondary evidence adduced by DECS.

The CA ruled against DECS stating that they were not able to prove the due execution or existence of the deed of donation and the resolution, as well as the loss of these documents as the cause of their un-availability. The Rule requires that the defendant must "prove its contents by a copy, or by a recital of its con-tents in some authentic document, or by the testimony of the witnesses in the order stated". However, DECS proceeded with the last resort-testimony of the wit-nesses, without even showing any diligent effort to se-cure a copy of the deed of donation and the resolution.

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emedial Law ReviewRSALVADOR DigestsIssue: Was DECS able to prove the loss of the docu-ments thus making the rule on secondary evidence ap-plicable? NO.

Decision: In this case, the best or primary evidence of a donation of real property is an authentic copy of the deed of donation with all the formalities required by Civil Code. The duty to produce the original document arises when the subject of the inquiry are the contents of the writing in which case there can be no evidence of the contents of the writing other than the writing it-self. Simply put, when a party wants to prove the con-tents of the document, the best evidence is the original writing itself.

Secondary evidence of the contents of a docu-ment refers to evidence other than the original docu-ment itself. A party may introduce secondary evidence of the contents of a written instrument not only when the original is lost or destroyed, but also when it can-not be produced in court, provided there is no bad faith on the part of the offeror. However, a party must first satisfactorily explain the loss of the best or primary ev-idence before he can resort to secondary evidence. A party must first present to the court proof of loss or other satisfactory explanation for non-production of the original instrument. The correct order of proof is as fol-lows: existence, execution, loss, contents, although the court in its discretion may change this order if neces-sary.

In this case, the CA found inadequate proof that DECS or the Municipality made a diligent search in the places where the deed of donation may likely be found and that the search was unsuccessful.

Prior to the introduction of secondary evi-dence, a party must establish the existence and due execution of the instrument. After a party establishes the existence and due execution of the document, he must prove that the document was lost or destroyed. The destruction of the instrument may be proved by any person knowing the fact. The loss may be shown by any person who knew the fact of its loss, or by any-one who had made, on the judgment of the court, a sufficient examination in the place [or] places where the document or papers of similar character are usually kept by the person in whose custody the document lost was, and has been unable to find it; or who has made any other investigation which is sufficient to satisfy the court that the instrument is indeed lost.

Judge Natividad who claimed to have notarized the deed of donation failed to account for other copies of the deed, which the law strictly enjoins him to

record, and furnish to other designated government offices. As a notary public, The Notarial Law mandates him to record in his notarial register the necessary in-formation regarding the instrument acknowledged be-fore him. The Notarial Law also mandates the notary public to retain a copy of the instrument acknowledged before him when it is a contract.

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

G. PAROLE EVIDENCE

ACI PHILS V COQUIA

FACTS: ACI Phils contracted w/Coquia for the purchase of several thousand tons of flint cullets. After several deliveries they demanded the reduction of the pur-chase price to which Coquia agreed but after receiving the order they refused to pay further demanding re-ductions.(from 4.2 went down to 3.65 then to 3.1)

Coquia filed a complaint for ACI to accept and pay for the delivery at the reduced price of 3.65. After 3 days, ACI paid.

TC ruled in favor of Coquia and ordered ACI to accept and pay for the deliveries at 4.20 per kilo + 2.5M in damages plus interest at legal rate + 200k At-tys fees +20k cost of suit.

CA affirmed but deleted Attys fees & cost of suit. It held that the Purchase Order was a contract of adhesion which must be strictly construed against ACI, it was also contrary to the orig agreement since it re-duced the price.

ACI claims that CA was wrong in compelling them to pay at 4.20 and to pay damages for the al-leged unrealized profits and it wasnot a contract of ad-hesion since Coquia had the freedom to negotiate the terms of the contract she entered. It maintained that it didn’t exercise any intimidation on Coquia to agree on the new Purchase order and assuming that it did it was ratified by the delivery and that the Statment of Acct already reflected the reduced price. It alsoentered into the contract upon Coquia ’ s assurance that she would promptly deliver. Both courts erred in refusing to re-ceive evidence aliunde to prove that time was an im - portant element of the agreement.

ISSUES:1. W/N the PO was a contract of adhesion? NO! Coquia has financial savvy, she deals with big corporations like La Tondena. She was also the one who sought the con-

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emedial Law ReviewRSALVADOR Digeststract with ACI. Even the terms and conditions of the purchase orders themselves don’t show any hint of one-sidedness.

2. W/N Courts erred in refusing to receive evidence ali-unde to prove that time was an important element of the agreement? NO! Condition 4 of the PO specifically mentions that the "delivery date shown on (the pur-chase order) shall be of the essence of any contract arising" and that "delivery must be made in strict ac-cordance with the order or delivery schedule..." but the PO didn ’ t mention when the cullets were needed .

RATIO: ACI argued that the PO failed to express the true intent of the parties, i.e., that petitioner entered into a contract with respondent conditioned upon the latter's prompt delivery of flint cullets.

TC rejected claim based on the parol evidence rule.The written document is the best evidence of its own contents. When the written contract is established as the repository of the parties' stipulations, any other evidence is excluded and the same cannot be used as a substitute for such contract, nor even to alter or con-tradict them.The exception is Sec 9, Rule 130, a party may present evidence to modify, explain or add to the terms of the agreement if he puts in issue in his plead-ing the failure of the written agreement to express the true intent and agreement of the parties. Since an ex-ception was raised as an issue in the answer, the trial court should not have been so inflexible as to com-pletely disregard ACI ’ s evidence.

Coquia was not given definite days during which she should deliver the flint cullets but ACI pre-sented the unrebutted testimony of Batalon, its materi-als control manager, to prove that it agreed to the P4.20 per kilo purchase price only because Coquiaas-sured it of prompt deliveries sufficient for their produc-tion requirements.

ACI was able to prove that the second pur-chase order with the reduced the price was accepted by Coquia and they didn ’ t contain the quantity to be delivered. And she accepted the payment for these de-liveries without protest.

SEAOIL PETROLEUM CORP. VS AUTOCORP GROUP

FACTS: SEAOIL bought an excavator from AUTOCORP, where the original cost wasP2.5M but was increased to P3.1M because payment was in installments (via checks). This agreement was embodied in a sales in-voice, and included an agreement that ownership will remain with AUTOCORP until fully paid despite delivery to SEAOIL. The first 2 checks were good but the re-maining 10 bounced, as SEAOIL stopped payment. Since SEAOIL refused to pay the balance despite re-peated demands, AUTOCORP filed a complaint for re-covery of personal property.

[*Warning: magulong part] SEAOIL contended that this isn’t really what happened as it was really RO-DRIGUEZ (director of AUTOCORP) who owed YU (Presi-dent of SEAOIL) in another transaction involving their other companies (UNILINE for RODRIGUEZ and FOCUS

for YU). RODRIGUEZ was supposed to pay by check to AUTOCORP but since there’s a company policy not to honor checks from its own directors, RODRIGUEZ asked YU to issue the checks in his behalf, to be funded by RODRIGUEZ’ own checks. SEAOIL said RODRIGUEZ stopped payment so it also stopped payment!

Note: Wala sa case, pero I think the latter transaction (between YU and RODRIGUEZ) was verbal lang. And this allegation was presented via Yu’s testimony in court kaya sasabihin ng CA na merely verbal lang yung transaction.

RTC: against SEAOIL, ordered it to pay balance to AUTOCORP.

CA: held that the transaction between Yu and Rodriguez was merely verbal. This cannot alter the sales contract between Seaoil and Autocorp as this will run counter to the parol evidence rule which prohibits the introduction of oral and parol evidence to modify the terms of the contract. The claim that it falls under the exceptions to the parol evidence rule has not been sufficiently proven.

ISSUE: W/N CA erred in partially applying the parol evi-dence rule to prove only some terms contained in one portion of the document but disregarded the rule with respect to another but substantial portion or entry also contained in the same document which should have proven the true nature of the transaction involved. – NO. (Hinde ko gets to…hinde naman sinabi sa facts. Sarili kong issue: W/N SEAOIL’s parol evidence is ad-missible because it falls under one of the exceptions [failure to express true agreement of parties] – NO.)

RATIO: The parol evidence rule forbids any addition to, or contradiction of, the terms of a written agreement by testimony or other evidence purporting to show that different terms were agreed upon by the parties. Un-substantiated testimony, offered as proof of verbal agreements which tends to vary the terms of a written agreement, is inadmissible under the parol evidence rule.

The SC invalidated SEAOIL’s contention that the written agreement failed to express the true intent and agreement of the parties. It reasoned that al-though parol evidence is admissible to explain the meaning of a contract, it cannot serve the purpose of incorporating into the contract additional contempora-neous conditions which are not mentioned at all in the writing unless there has been fraud or mistake. Evi-dence of a prior or contemporaneous verbal agreement is generally not admissible to vary, contradict or defeat the operation of a valid contract.

SEAOIL’s contention that the document falls within the exception to the parol evidence rule is un-tenable. Only in cases where "the written contract is so ambiguous or obscure in terms that the contractual intention of the parties cannot be understood from a mere reading of the instrument would the exception apply.

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emedial Law ReviewRSALVADOR DigestsMARQUEZ v. ESPEJO

Facts: The Espejos were the original registered owners of 2 parcels of agricultural land: the Lantap property and the Murong property. The Murong property was tenanted by petitioners Marquez and Dela Cruz while the Lantap property was tenanted by Nemi.

Espejos mortgaged both lands to Rural Bank of Bayombong. They failed to pay and the bank fore-closed and bought the properties, and eventually con-solidated title to them.

Espejos bought back one of their lots. How-ever, the Deed of Sale did not mention the barangay where the property was located but mentioned the title of the property, which corresponds to the Murong prop-erty. There is no evidence, though, that the Espejos took possession of the Murong property, demanded lease rentals from the tenants, or otherwise exercised acts of ownership. On the other hand, Nemi continued working on the Lantap property without any evidence that he ever paid rentals to the bank or to the landowner.

Meanwhile, Rural Bank executed Deeds of Vol-untary Land Transfer (VLTs) in favor of the tenants of the Murong property. DAR issued Certificates of Land Ownership Awards (CLOAs). Both CLOAs stated that their subjects were parcels of agricultural land in Barangay Murong.

Esepjos filed complaint after more than 10 years before the Regional Agrarian Reform Adjudicator (RARAD), praying for the cancellation of the CLOAs. This was based on the theory that the Murong property was the one they bought back, since the Deed of Sale refers to the TCT corresponding to it. Rural Bank said it was the Lantap property that was bought back. The RARAD gave precedence to the TCT appearing in the Deed of Sale.

Upon appeal, the DARAB reversed. In assailing the validity of the CLOAs, Espejos had the burden of proof. There being no evidence that the DAR filed per-sonnel were remiss in the performance of their official duties when they issued these, the presumption of reg-ular performance of duty prevails. Furthermore, Espe-jos failed to support their allegation that they bought back the Murong property with substantial evidence.

The CA reversed. Using the Best Evidence Rule (Sec. 3, Rule 130), it held that the Deed of Sale is the best evidence as to its contents, particularly the de-scription of the land. The VLT’s referred to the TCT of the Lantap property. The additional description that it was located in Murong was a mere typo. The technical description in the TCT is more accurate, since it partic-ularly describes the metes and bounds.

Issue: Whether the Best Evidence Rule should apply – NO (NOTE: CA actually applied the Parol Evidence Rule)

Ratio: The Best Evidence Rule states that when the subject of inquiry is the contents of a document, the best evidence is the original document itself and no other evidence (such as reproduction, photocopy or oral evidence) is admissible as a general rule. The original is preferred because it reduces the chance of

undetected tampering. In the instant case, there is no room for the application of this Rule because there is no dispute regarding the contents of the documents. The real issue is whether the admitted contents of these documents adequately and correctly express the true intention of the parties. The dispute reflects an in-trinsic ambiguity in the contracts, arising from an ap-parent failure of the instruments to adequately express the true intention of the parties. To resolve it, resort must be had to evidence outside the instruments.

Though the CA cited the Best Evidence Rule, it appears that what it actually applied was the Parol Evi-dence Rule, which is still improper in this case. In the first place, the Espejos are not parties to the VLTs, they are strangers to these contracts. Rule 130, sec. 9 pro-vides that parol evidence rule is exclusively between the parties and their successors-in-interest. It may not be invoked where at least one of the parties to the suit is not a party or privy to the written document, and does not base his claim on the instrument or assert a right originating from it.

Moreover, the case falls under the exceptions to the Parol Evidence Rule: 1) intrinsic ambiguity, mis-take or imperfection in the written agreement; and 2) failure of the written agreement to express the true in-tent and agreement of the parties. The resolution of the case necessitates an examination of the parties’ re-spective parol evidence to determine their true intent. In case of doubt, it is the intention of the contracting parties that prevails, for the intention is the soul of a contract. (Side note: SC ruled that SM of sale was the Lantap Property based on the circumstances)

H. DISQUALIFICATION BY REASON OF IMMATURITY

PEOPLE OF THE PHILIPPINES V. SALVADOR GOLIMLIM

Facts: Salvador Golimlim was charged of raping Eve-lyn Canchela. Evelyn, a mental retardate, stays with her aunt Jovita and uncle Salvador Golimlim. When Jovita left the house, Salvador instructed evelyn to sleep, and soon after she had laid down, he kissed her and took off her clothes. As he poked at her an object, which to Evelyn felt like a knife, he proceeded to insert his penis into her vagina. Later on, Evelyn’s half-sister, Lorna, allowed her to stay with her (Lorna). Lorna no-ticed Evelyn’s growing belly when checked, it turns out that Evelyn was pregnant. Evelyn told Lorna that she had sexual intercourse with Salvador while the latter was holding a knife. The sisters filed a complaint for rape against Salvador. The trial court convicted Sal-vador of rape.

Issue: W/N the court should have given weight and cre-dence to the contradictory and implausible testimony of Evelyn, a mental retardate. – YES.

Held: In giving credence to Evelyn’s testimony and finding against appellant, the trial court made the fol-lowing observations:1) Despite her weak and dull men-tal state the victim was consistent in her claim that her Salvador had carnal knowledge of her and was the au-thor of her pregnancy, and nobody else; 2) She re-

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emedial Law ReviewRSALVADOR Digestsmains consistent that Salvador raped her only once; 3) That the contradictory statements she made in open court relative to the details of how she was raped, al-though would seem derogatory to her credibility and reliability as a witness under normal conditions, were amply explained by the psychiatrist who examined her and supported by her findings; and 4) Despite her claim that several persons laid on top of her, the lucid fact remains that she never pointed to anybody else as the author of her pregnancy, but Salvador. Which only shows that the trauma that was created in her mind by the incident has remained printed in her memory de-spite her weak mental state. Furthermore, granting for the sake of argument that other men also laid on top of her, this does not deviate from the fact that Salvador had sexual intercourse with her.

In the present case, no cogent reason can be appreciated to warrant a departure from the findings of the trial court with respect to the assessment of Eve-lyn’s testimony.That Evelyn is a mental retardate does not disqualify her as a witness nor render her testimony bereft of truth.Sections 20 and 21 of Rule 130 of the Revised Rules of Court provide:

SEC. 20. Witnesses; their qualifications. – Ex-cept as provided in the next succeeding sec-tion, all persons who can perceive, and perceiv-ing, can make known their perception to oth-ers, may be witnesses.xxxSEC. 21. Disqualification by reason of mental incapacity or immaturity. – The following per-sons cannot be witnesses:(a) Those whose mental condition, at the time of their production for examination, is such that they are incapable of intelligently making known their perception to others;(b) Children whose mental maturity is such as to render them incapable of perceiving the facts respecting which they are examined and of relating them truthfully.

A mental retardate or a feebleminded person is not, per se, disqualified from being a witness, her men-tal condition not being a vitiation of her credibility. It is now universally accepted that intellectual weakness, no matter what form it assumes, is not a valid objec-tion to the competency of a witness so long as the lat-ter can still give a fairly intelligent and reasonable nar-rative of the matter testified to.

Thus, in a long line of cases, this Court has up-held the conviction of the accused based mainly on statements given in court by the victim who was a mental retardate.

From a meticulous scrutiny of the records of this case, there is no reason to doubt Evelyn’s credibil-ity. To be sure, her testimony is not without discrepan-cies, given of course her feeblemindedness.

The psychiatrist who examined Evelyn said that although Evelyn was suffering from moderate mental retardation with an IQ of 46,she is capable of perceiving and relating events which happened to her. Evelyn could give spontaneous and consistent answers to the same but differently framed questions under

conditions which do not inhibit her from answering.Salvador’s bare denial is not only an inherently weak defense. It is not supported by clear and convincing ev-idence. It cannot thus prevail over the positive declara-tion of Evelyn who convincingly identified him as her rapist.

I. DISQUALIFICATION BY REASON OF DEATH

SANSON et al. v. CA and MELECIA T. SY, as Administra-trix of the Intestate Estate of the Late Juan Bon Fing Sy

FACTS: Petitioners herein (Felecito Sanson and his sis-ter Celedonia Sanson; and Angeles Montinola and her son Eduardo Montinola) are creditors of the deceased, Juan Bon Fing Sy. In their capacity as creditors, peti-tioners herein filed for the settlement of the estate of the deceased. There are three transactions to remem-ber:

1. Transaction between Felecito (creditor) and deceased (debtor): During the trial, the Peti-tioner Felecito Sanson, as creditor, testified that deceased was indebted to him, as evi-denced by 5 checks. To support Felecito’s claim, Celedonia (Felecito’s sister) testified as a witness to the transaction that respondent issued 5 checks to Felecito, but was dishon-ored once it was presented for payment after the death of respondent. [Note: The first transaction is between Felecito (creditor) and deceased (debtor) only. Celedonia was merely presented as a witness to the transaction to supported the testimony of his brother Felecito ]

2. Transaction between Celedonia (creditor) and deceased (debtor): During the trial, Celedonia claims that deceased was indebted to her, as evidence by 6 checks. To support her claim, Felecito (her brother) testified that his sister tried to enforce the settlement of the check while the deceased was still alive but she was assured that the obligation would be settled as soon as respondent would get well. When respondent died, Celedonia presented the checks for payment but were dishonored by the bank due to closure of account. [ Note: The second transaction is between Celedonia (creditor) and deceased (debtor) only. Felecito as a witness to the transaction merely sup-ported the testimony of his sister. But Felecito is NOT a creditor of the deceased in this trans-action which he testified ]

3. Transaction between the Montinolas (credi-tors) and deceased (debtor): With regard to the Montinola creditors, they claim that the deceased borrowed money from them as evi-denced by 3 checks. Similarly, they tried to enforce settlement of the checks before re-spondent died but they were told not to de-posit the checks yet because they will be paid in cash instead, but respondent never did. When they deposited the checks after respon-dent’s death, the checks were dishonored.

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emedial Law ReviewRSALVADOR Digests[ Note: in the case of the Montinola creditors, the one who testified to the transaction is Jade, the daughter-in-law of claimant Angeles and who is at the same time the wife of claimant Eduardo Montinola, Jr. ]

Respondent-Administratix Melecia Sy now objects to the admission of the checks and check return slips-exhibits offered in evidence by the claimants upon the ground that the witnesses who testified thereon are disqualified under the Dead Man’s Statute which reads:

SEC. 23. Disqualification by reason of death or insanity of adverse party.—Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a de-ceased person, or against a person of unsound mind, upon a claim or demand against the es-tate of such deceased person or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind.

ISSUE: Whether or not the creditors’ evidence of their claim is incompetent under the dead man’s statute, and inadmissible. (NO. HENCE, ADMISSIBLE)

HELD: As for the administratrix’s invocation of the Dead Man’s Statute, the same does not likewise lie. The rule renders incompetent: 1) parties to a case; 2) their assignors; or 3) persons in whose behalf a case is prosecuted. The rule is exclusive and cannot be con-strued to extend its scope by implication so as to dis-qualify persons not mentioned therein. Mere witnesses who are not included in the above enumeration are not prohibited from testifying as to a conversation or trans-action between the deceased and a third person, if he took no active part therein.

Jade is not a party to the case. Neither is she an assignor nor a person in whose behalf the case is being prosecuted. She testified as a witness to the transac-tion. In transactions similar to those involved in the case at bar, the witnesses are commonly family mem-bers or relatives of the parties. Should their testi-monies be excluded due to their apparent interest as a result of their relationship to the parties, there would be a dearth of evidence to prove the transactions. In any event, independently of the testimony of Jade, the claims of the Montinolas would still prosper on the ba-sis of their documentary evidence—the checks.

As to the Sansons, the administratix argued that the law speaks of “parties or assignors of parties to a case.” Apparently, the testimonies of Sanson and Saquin on each other’s behalf, as co-parties to the same case, falls under the prohibition. The adminis-tratix claims that since the law disqualifies parties to a case or assignors to a case without distinguishing be-tween testimony in his own behalf and that in behalf of others, he should be disqualified from testifying for his co-parties.

However, in denying the claim of the adminis-tratix, the SC held: But Sanson’s and Celedonia’s claims against the same estate arose from separate transac-

tions. Sanson is a third party with respect to Celedo-nia’s claim. And Celedonia is a third party with respect to Sanson’s claim. One is not thus disqualified to testify on the other’s transaction.

In any event, what the Dead Man’s Statute pro-scribes is the admission of testimonial evidence upon a claim which arose before the death of the de-ceased. The incompetency is confined to the giving of testimony. Since the separate claims of Sanson and Celedonia are supported by checks-documentary evi-dence, their claims can be prosecuted on the bases of said checks.

J. CHILD WITNESS EXAMINATION RULE

PEOPLE V. CANETE

FACTS:

- Spouses Paquito and Sedaria Cañete had 3 chil-dren, one of whom was Alma. Later on, the spouses decided to live separately. As a result, Alma lived with his father.

- Paquito and Alma lived with the former’s brother, Kakingcio Cañete, who was also married and had children. Alma called Kakingcio’s wife Yaya Alejan-dra.

- Paquito and Alma eventually went back to their old home after a while. But Paquito became blind and a paralytic. So Kakingcio had Paquito and Alma fetched to live with him and his family again. By then, Alma was already twelve years old. She noticed that her uncle Kakingcio was nice and amiable to her.

- One night, may ganap! Alma was sleeping when she felt someone caressing her – Kakingcio. Even-tually, he raped her after threatening her with an 8-inch…..knife. She lost consciousness in the process and woke up with a bloody vagina. She cried.

- Another evening, Alma was awakened when she felt her pants being pulled down. She resisted then ran to Ka Caring (a neighbor) and revealed that her uncle raped her and that he was about to rape her again. Caring adviced Alma not to return to their house. Alma slept in the house of Caring. Alma returned to their house the next day.

- Alma told Alejandra. Alejandra quarreled with Kak-ingcio then the latter left. Then, Alejandra accom-panied Alma to the barangay captain and com-

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emedial Law ReviewRSALVADOR Digestsplained against Kakingcio. The Barangay Captain wrote a letter to the local police authorities re-questing assistance to Alejandra and Alma. A Mu-nicipal Health Officer examined Alma, which showed that she had lacerations.

- An information for rape was charged against Kak-ingcio. He eaded not guilty.

- His defense was an alibi. RTC: guilty with a penalty of death.

- Hence, this petition. It is the contention of the ac-cused that the prosecution had a difficulty proving that the appellant raped the private complainant in light of her testimony that when the appellant mounted her, he still had his short pants on. When the prosecution tried to elicit from the offended party how appellant’s penis could have been in-serted into her vagina with his pants still on and the appellant’s counsel objected to the question, the presiding judge himself took the cudgels for the prosecution and propounded questions on the private complainant. Worse, the presiding judge posed leading questions to the private com-plainant. He contends that the presiding judge was biased and partial to the prosecution.

ISSUE: W/N the presiding judge is allowed to propound questions (leading) on a witness to elicit info. – YES.

HELD/RATIO: A presiding judge enjoys a great deal of latitude in examining witnesses within the course of ev-identiary rules. The presiding judge should see to it that a testimony should not be incomplete or obscure. The trial judge must be accorded a reasonable leeway in putting such questions to witnesses as may be es-sential to elicit relevant facts to make the record speak the truth. Trial judges in this jurisdiction are judges of both the law and the facts, and they would be negli-gent in the performance of their duties if they permit-ted a miscarriage of justice as a result of a failure to propound a proper question to a witness which might develop some material bearing upon the outcome. In the exercise of sound discretion, he may put such question to the witness as will enable him to formulate a sound opinion as to the ability or the willingness of the witness to tell the truth. A judge may examine or cross-examine a witness. He may propound clarifica-tory questions to test the credibility of the witness and to extract the truth. He may seek to draw out relevant and material testimony though that testimony may

tend to support or rebut the position taken by one or the other party. It cannot be taken against him if the clarificatory questions he propounds happen to reveal certain truths which tend to destroy the theory of one party.

Parenthetically, under Sections 19 to 21 of the Rule on Examination of a Child Witness, child witnesses may testify in a narrative form and leading questions may be allowed by the trial court in all stages of the examination if the same will further the interest of jus-tice. Objections to questions should be couched in a manner so as not to mislead, confuse, frighten and in-timidate the child:

Sec. 19. Mode of questioning. – The court shall exercise control over the questioning of chil-dren so as to (1) facilitate the ascertainment of the truth, (2) ensure that questions are stated in a form appropriate to the developmental level of the child, (3) protect children from ha-rassment or undue embarrassment, and (4) avoid waste of time.

The court may allow the child witness to testify in a narrative form.

K. PRIVILEGE

1. Government Privilege

Romulo Neri v. Senate Committee on Accountability of Public Officers and Investigations*sorry mahabang digest

Facts: On April 21, 2007, the DOTC entered into a con-tract with Zhong Xing Telecommunications Equipment (ZTE) for the supply of equipment and services for the National Broadband Network (NBN) Project for approxi-mately P16 Billion Pesos. The Project was to be fi-nanced by the People’s Republic of China.

In connection with this, various Resolutions were introduced in the Senate: 1) P.S. Res. No. 127, di-recting the Blue Ribbon Committee and Committee on Trade and Industry to Investigate, in aid of legislation, the approval of the broadband contract; 2) P.S. Res. No. 144, urging Pres. Arroyo to cancel the ZTE con-tract; 3) P.S. Res. No. 129, directing the Committee on National Defense and Security to conduct an inquiry, in aid of legislation, into the national security implications of awarding the contract to ZTE; and 4) P.S. Res. No. 136, directing the proper Senate Committed to conduct an inquiry, in aid of legislation, on the legal and eco-nomic justification of the NBN project. The investiga-

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emedial Law ReviewRSALVADOR Digeststions were claimed to be relevant to the consideration of 3 pending bills in the Senate.

Respondent Committees initiated the investiga-tion by sending invitations to certain personalities and cabinet officials involved in the NBN Project. Neri (NEDA Director General at that time) was among those in-vited. He was summoned to appear and testify on Sep-tember 18, 20, and 26 and October 25, 2007. How-ever, he attended only the September 26 hearing, claiming he was “out of town” during the other dates.

In the September 18 hearing, businessman Jose de Venecia III testified that several high executive offi-cials and power brokers were using their influence to push the approval of the NBN Project by the NEDA. The Project was initially approved as a Build-Operate-Trans-fer project but, the NEDA acquiesced to convert it into a government-to-government project, to be financed through a loan from the Chinese Government. On Sep-tember 26, Neri testified before respondent Commit-tees for 11 hours. He disclosed that then COMELEC Chairman Benjamin Abalos offered him P200 Million in exchange for his approval of the NBN Project. He fur-ther narrated that he informed President Arroyo about the bribery attempt and that she instructed him not to accept the bribe. However, when probed further on what they discussed about the NBN Project, Neri re-fused to answer, invoking “executive privilege”. In par-ticular, he refused to answer the questions on: 1. W/N President Arroyo followed up the NBN Project, 2. W/N she directed him to prioritize it, and 3. W/N she directed him to approve. Respondent Committees issued a Subpoena Ad Testificandum to Neri, requiring him to appear and tes-tify on November 20. However, in the Letter dated No-vember 15, 2007, Executive Secretary Ermita re-quested respondent Committees to dispense with Neri’s testimony on the ground of executive privilege – the privilege was claimed on the ground “that the infor-mation sought to be disclosed might impair our diplo-matic as well as economic relations with the People’s Republic of China. Given the confidential nature in which these information were conveyed to the Presi-dent, Neri could not provide the Committee any further details of these conversations, without disclosing the very thing the privilege is designed to protect.” Thus on November 20, Neri did not appear before respon-dent Committees.

The Committees later issued the show cause Letter requiring him to explain why he should not be cited in contempt. Neri replied that it was not his in-tention to ignore the Senate hearing and that he thought the only remaining questions were those he claimed to be covered by executive privilege. He sub-mitted a letter prepared by his counsel, stating, among others that: (1) his non-appearance was upon the order of the President; and (2) his conversation with Presi-dent Arroyo dealt with delicate and sensitive national security and diplomatic matters relating to the impact of the bribery scandal involving high government offi-cials and the possible loss of confidence of foreign in-vestors and lenders in the Philippines. The letter ended with a reiteration of Neri’s request that he “be

furnished in advance” as to what else he needs to clar-ify so that he may adequately prepare for the hearing.

In the interim, Neri filed with the SC the present petition for certiorari assailing the show cause Letter of the Committees. Respondent Commit-tees found Neri’s explanations unsatisfactory. Without responding to his request, they issued the Order, citing him in contempt and ordering his arrest and detention at the Office of the Senate Sergeant-At-Arms until such time that he would appear and give his testimony. On the same date, Neri moved for the reconsideration of the Order. In view of the contempt Order, Neri filed a Supplemental Petition for Certiorari (With Urgent Ap-plication for TRO/Preliminary Injunction), seeking to re-strain the implementation of the said contempt Order. SC issued a Status Quo Ante Order.

On March 6, 2008, President Arroyo is-sued Memorandum Circular No. 151, revoking EO No. 464 and Memorandum Circular No. 108. She advised executive officials and employees to follow and abide by the Constitution, existing laws and jurisprudence, in-cluding, among others, the case of Senate v. Er-mita when they are invited to legislative inquiries in aid of legislation.

Issue: Are the communications elicited by the subject 3 questions covered by executive privilege (Rule 30, Sec. 24(e) of the Rules of Court), despite the revocation of EO No. 464? Yes, the questions are covered by execu-tive privilege.

Held and Ratio: The revocation of E.O. 464 does not in any way diminish our concept of executive privilege. This is because this concept has Constitutional under-pinnings. Unlike the US which has further accorded the concept with statutory status by enacting the Freedom of Information Act and the Federal Advisory Committee Act, the Philippines has retained its constitutional origi-nation, occasionally interpreted only by this Court in various cases. The most recent of these is the case of Senate v. Ermita where this Court declared unconsti-tutional substantial portions of E.O. 464. In this regard, it is worthy to note that Executive Ermita’s Letter limits its bases for the claim of executive privilege to Senate v. Ermita, Almonte v. Vasquez and Chavez v. PEA. There was never a mention of E.O. 464.

While these cases, especially Senate v. Ermita, have comprehensively discussed the concept of execu-tive privilege, the Court in this case went on to clearly define the communications covered by executive privi-lege.

In US v. Nixon, the U.S. Court recognized a great public interest in preserving “the confidentiality of conversations that take place in the President’s per-formance of his official duties.” It considered presiden-tial communications as “presumptively privileged.” The presumption is founded on the “President’s generalized interest in confidentiality.” The privilege is said to be necessary to guarantee the candor of presidential advi-sors and to provide “the President and those who assist him… with freedom to explore alternatives in the process of shaping policies and making decisions and

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emedial Law ReviewRSALVADOR Digeststo do so in a way many would be unwilling to express except privately.”

In In Re: Sealed Case, the U.S. Court of Appeals ruled that there are 2 kinds of executive privilege; one is the presidential communications privilege and, the other is the deliberative process privilege. The former pertains to “communications, documents or other ma-terials that reflect presidential decision-making and de-liberations and that the President believes should re-main confidential.” The latter includes ‘advisory opin-ions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.”

Presidential communications privilege applies to decision-making of the President while, the delibera-tive process privilege, to decision-making of execu-tive officials. The first is rooted in the constitutional principle of separation of power and the President’s unique constitutional role; the second on com-mon law privilege. Unlike the deliberative process privi-lege, the presidential communications privilege ap-plies to documents in their entirety, and covers final and post-decisional materials as well as pre-delibera-tive ones. As a consequence, congressional or judicial negation of the presidential communications privi-lege is always subject to greater scrutiny than denial of the deliberative process privilege.

The In Re: Sealed Case confines the presiden-tial communications privilege, only to White House Staff that has “operational proximity” to direct presi-dential decision-making. The privilege is meant to en-compass only those functions that form the core of presidential authority, involving what the court charac-terized as “quintessential and non-delegable Presiden-tial power,” such as commander-in-chief power, ap-pointment and removal power, the power to grant par-dons and reprieves, the sole-authority to receive am-bassadors and other public officers, the power to nego-tiate treaties, etc.

In older cases, Courts ruled that the Executive has a right to withhold documents that might re-veal military or state secrets, identity of government in-formers in some circumstances, and information re-lated to pending investigations. An area where the privilege is highly revered is in foreign relations. In US v. Curtiss-Wright Export Corp, the U.S. Court, pro-nounced: “The nature of foreign negotiations requires caution, and their success must often depend on se-crecy, and even when brought to a conclusion, a full disclosure of all the measures, demands, or eventual concessions which may have been proposed or con-templated would be extremely impolitic, for this might have a pernicious influence on future negotiations or produce immediate inconveniences, perhaps danger and mischief, in relation to other powers. The necessity of such caution and secrecy was one cogent reason for vesting the power of making treaties in the President, with the advice and consent of the Senate, the princi-ple on which the body was formed confining it to a small number of members. To admit, then, a right in the House of Representatives to demand and to have as a matter of course all the papers respecting a nego-

tiation with a foreign power would be to establish a dangerous precedent.”

The above cases, especially, Nixon, In Re Sealed Case and Judicial Watch, somehow provide the elements of presidential communications privilege, to wit: “1) The protected communication must relate to a “quintessential and non-delegable presidential power”; 2) The communication must be authored or “solicited and received” by a close advisor of the President or the President himself. The judicial test is that an advisor must be in “operational proximity” with the President; 3) The presidential communications privilege remains a qualified privilege that may be overcome by a showing of adequate need, such that the information sought “likely contains important evidence” and by the un-availability of the information elsewhere by an appro-priate investigating authority.”

In the case at bar, Executive Secretary Ermita premised his claim of executive privilege on the ground that the communications elicited by the 3 ques-tions “fall under conversation and correspondence be-tween the President and public officials” necessary in “her executive and policy decision-making process” and, that “the information sought to be dis-closed might impair our diplomatic as well as economic relations with the People’s Republic of China.” Simply put, the bases are presidential communications privi-lege and executive privilege on matters relating to diplomacy or foreign relations.

Using the above elements, we are convinced that, indeed, the communications elicited by the 3 questions are covered by the presidential communica-tions privilege. First, the communications relate to a “quintessential and non-delegable power” of the Presi-dent, i.e. the power to enter into an executive agree-ment with other countries. This authority of the Presi-dent to enter into executive agreements without the concurrence of the Legislature has traditionally been recognized in Philippine jurisprudence. Second, the communications are “received” by a close advisor of the President. Under the “operational proximity” test, petitioner can be considered a close advisor, being a member of President Arroyo’s cabinet. And third, there is no adequate showing of a compelling need that would justify the limitation of the privilege and of the unavailability of the information elsewhere by an appropriate investigating authority.

US v. Nixon held that a claim of executive privi-lege is subject to balancing against other interest. In other words, confidentiality in executive privilege is not absolutely protected by the Constitution. The U.S. Court held: “[N]either the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an abso-lute, unqualified Presidential privilege of immunity from judicial process under all circumstances.” Nixon v. Sir-ica held that presidential communications are presump-tively privileged and that the presumption can be over-come only by mere showing of public need by the branch seeking access to conversations. The courts are enjoined to resolve the competing interests of the polit-ical branches of the government “in the manner that

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emedial Law ReviewRSALVADOR Digestspreserves the essential functions of each Branch.” Here, the record is bereft of any categorical explanation from respondent Committees to show a compelling or critical need for the answers to the 3 questions in the enactment of a law. Instead, the ques-tions veer more towards the exercise of the legislative oversight function under Section 22 (power to conduct question hour – oversight function) of Article VI rather than Section 21(power to conduct inquiries in aid of legislation – legislative function) of the same Arti-cle. Senate v. Ermita ruled that the “the oversight func-tion of Congress may be facilitated by compulsory process only to the extent that it is performed in pur-suit of legislation.”

Respondent Committees argue that a claim of executive privilege does not guard against a possible disclosure of a crime or wrongdoing. We see no dis-pute on this. US v. Nixon has held that “demonstrated, specific need for evidence in pending criminal trial” out-weighs the President’s “generalized interest in confi-dentiality.” However, the present case’s distinction with the Nixon case is very evident. In Nixon, there is a pending criminal proceeding where the information is requested and it is the de-mands of due process of law and the fair administra-tion of criminal justice that the information be dis-closed. This is the reason why the U.S. Court was quick to “limit the scope of its decision.” It stressed that it is “not concerned here with the balance between the President’s generalized interest in confi-dentiality x x x and congressional demands for infor-mation.” Unlike in Nixon, the information here is elicited, not in a criminal proceeding, but in a legisla-tive inquiry. In this regard, Senate v. Ermita stressed that the validity of the claim of executive privilege de-pends not only on the ground invoked but, also, on the procedural setting or the context in which the claim is made. Furthermore, in Nixon, the President did not interpose any claim of need to protect military, diplo-matic or sensitive national security secrets. In the present case, Executive Secretary Ermita categorically claims executive privilege on the grounds of presiden-tial communications privilege in relation to her execu-tive and policy decision-making process and diplomatic secrets.

It is true, of course, that the Executive cannot, any more than the other branches of government, in-voke a general confidentiality privilege to shield its offi-cials and employees from investigations by the proper governmental institutions into possible criminal wrong-doing. But under Nixon v. Sirica, the showing required to overcome the presumption favoring confidentiality turned, not on the nature of the presidential conduct that the subpoenaed material might reveal, but, in-stead, on the nature and appropriateness of the func-tion in the performance of which the material was sought, and the degree to which the material was nec-essary to its fulfillment. Here also our task requires and our decision implies no judgment whatever concerning possible presidential involvement in culpable activity. On the contrary, we think the sufficiency of the Com-mittee's showing must depend solely on whether the

subpoenaed evidence is demonstrably critical to the re-sponsible fulfillment of the Committee's functions...The sufficiency of the Committee's showing of need has come to depend, therefore, entirely on whether the subpoenaed materials are critical to the performance of its legislative functions. There is a clear difference between Congress' legislative tasks and the responsi-bility of a grand jury, or any institution engaged in like functions. While fact-finding by a legislative committee is undeniably a part of its task, legislative judgments normally depend more on the predicted consequences of proposed legislative actions and their political ac-ceptability, than on precise reconstruction of past events; Congress frequently legislates on the basis of conflicting information provided in its hearings. In con-trast, the responsibility of the grand jury turns entirely on its ability to determine whether there is probable cause to believe that certain named individuals did or did not commit specific crimes.”

*On the claim that the grant of petitioner’s claim of ex-ecutive privilege will violate the constitutional provi-sions on the right of the people to information on mat-ters of public concern: SC might have agreed with such contention if petitioner did not appear before them at all. But petitioner made himself available to them dur-ing the September 26 hearing, where he was ques-tioned for 11 hours. Not only that, he expressly mani-fested his willingness to answer more questions from the Senators, with the exception only of those covered by his claim of executive privilege.

The right to public information (Article III, Sec. 7 of the Constitution), like any other right, is subject to limitation. The provision itself expressly provides the limitation, i.e. as may be provided by law. Some of these laws are Section 7 of RA No. 6713, Article 229 of the RPC, Section 3 (k) of R.A. No. 3019, and Section 24(e) of Rule 130 of the Rules of Court. These are in addition to what our body of jurisprudence classifies as confidential and what our Constitution considers as be-longing to the larger concept of executive privi-lege. Clearly, there is a recognized public interest in the confidentiality of certain information. We find the information subject of this case belonging to such kind.

Moreover, the right of Congress or any of its Committees to obtain information in aid of legisla-tion cannot be equated with the people’s right to public information. The former cannot claim that every leg-islative inquiry is an exercise of the people’s right to in-formation. The distinction between such rights is laid down in Senate v. Ermita:“There are, clear distinctions between the right of Congress to information which un-derlies the power of inquiry and the right of people to information on matters of public concern. For one, the demand of a citizen for the production of documents pursuant to his right to information does not have the same obligatory force as a subpoena duces tecum is-sued by Congress. Neither does the right to information grant a citizen the power to exact testimony from gov-ernment officials. These powers belong only to Con-gress, not to an individual citizen. Thus, while Congress is composed of representatives elected by the people, it does not follow, except in a highly qualified sense,

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emedial Law ReviewRSALVADOR Digeststhat in every exercise of its power of inquiry, the peo-ple are exercising their right to information.” The mem-bers of respondent Committees should not invoke as justification in their exercise of power a right properly belonging to the people in general. This is because when they discharge their power, they do so as public officials and members of Congress. Be that as it may, the right to information must be balanced with and should give way, in appropriate cases, to constitutional precepts particularly those pertaining to delicate inter-play of executive-legislative powers and privileges which is the subject of careful review by numerous de-cided cases. *On whether the claim is properly invoked: Jurispru-dence teaches that for the claim to be properly in-voked, there must be a formal claim of privilege, lodged by the head of the department which has con-trol over the matter.” A formal and proper claim of ex-ecutive privilege requires a “precise and certain rea-son” for preserving their confidentiality. The Letter dated November 17, 2007 of Executive Secretary Er-mita satisfies the requirement. It serves as the formal claim of privilege. There, he expressly states that “this Office is constrained to invoke the settled doctrine of executive privilege as refined in Senate v. Ermita, and has advised Secretary Neri accordingly.” Obvi-ously, he is referring to the Office of the President. That is more than enough compliance. In Senate v. Ermita, a less categorical letter was even adjudged to be suffi-cient. The find the grounds relied upon by Executive Secretary Ermita are specific enough so as not “to leave respondent Committees in the dark on how the requested information could be classified as privi-leged.” The case of Senate v. Ermita only requires that an allegation be made “whether the information de-manded involves military or diplomatic secrets, closed-door Cabinet meetings, etc.” The particular ground must only be specified. The enumeration is not even in-tended to be comprehensive.” At any rate, as held fur-ther in Senate v. Ermita, the Congress must not require the executive to state the reasons for the claim with such particularity as to compel disclosure of the infor-mation which the privilege is meant to protect. This is a matter of respect to a coordinate and co-equal de-partment. 

2. Judicial Privilege

Per Curiam Decision of the SC in connection with the Letter of the House Prosecution Panel to Subpoena Jus-tices of the SC

Facts: (Corona Impeachment) Congressman Emilio Abaya, the Impeachment Prosecution Panel Manager, in behalf of the prosecution; wrote several letters dated January 19, and 25, 2012, requesting that the prosecution be allowed to examine the rollo of several impeachment related cases. These included FASAP v.

PAL, Navarro v. Ermita, Gutierrez v. House and League of Cities v. Comelec. He even asked for certified true copies of the Agenda and Minutes of Deliberation of the FASAP case.

Meanwhile the Senate Impeachment Court di-rected the Clerk of Court(CoC) and the Asst. Clerk of Court via a subpoena ad testificandum et duces tecum to appear and produce certain documents of the FASAP case. These included the records of the raffle of the case and four letters written by Atty. Estrelito Mendoza addressed to the CoC

Another subpoeana ad testificandum was is-sued ordering the CoC to bring with her certain docu-ments related to the TRO issued in relation to Gloria Ar-royo’s leaving the country. Also required were the records of Corona’s appointment to the SC and Corona’s appointment as CJ.

Around Jan. 27, 2012, the Prosecution mani-fested in a COMPLIANCE that it would present about 100 witnesses and almost a thousand documents, to be secured from both private and public offices. The list of proposed witnesses included Justices of the SC, and Court officials and employees who will testify on matters, many of which are, internal to the Court. Save for League of Cities and Gutierrez, the cases were still pending with the SC.

On Feb. 7 and 8, the prosecution again asked for subpoenas for the production of records of cases, and the attendance of Justices, officials and employees of the Supreme Court, to testify on the records and on the various cases mentioned above

Instead of issuing the subpoenas, Senator Judge Enrile issued an Order denying the request for subpoena ad testificandum to JJ. Villarama, Sereno, Reyes and Ve-lasco. Thus, the attendance of SC Justices under com-pulsory process became moot and academic.

Issue: Whether or not the requests of the letters can be granted.

Held: It depends. The SC said the rollo of the cases, whether decided or pending, are privileged. Certified true copies of orders, decisions, resolutions, being mat-ters of public record can be provided. The parties’ pleadings may be examined as well. The Court can also give copies of Mendoza’s letters.

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emedial Law ReviewRSALVADOR DigestsHowever, it can’t release documents related to

the FASAP case as it is still pending. The Court cannot as well waive the privileges attendant to the proposed testimony of CoC Vidal and of the other Court officials and employees on matters covered by privilege and confidentiality. The witness can only testify on the doc-uments or records allowed under the listing.

Ratio: Philippine law, rules and jurisprudence prohibit the disclosure of confidential or privileged information under well-defined rules. At the most basic level and subject to the principle of comity, Members of the Court, and Court officials and employees may not be compelled to testify on matters that are part of the in-ternal deliberations and actions of the Court in the ex-ercise of their adjudicatory functions and duties, while testimony on matters external to their adjudicatory functions and duties may be compelled by compulsory processes.

To summarize these rules, the following are privileged documents or communications, and are not subject to disclosure:

(1) Court actions such as the result of the raffle of cases and the actions taken by the Court on each case included in the agenda of the Court’s session on acts done material to pending cases, except where a party litigant requests information on the result of the raf-fle of the case, pursuant to Rule 7, Section 3 of the IRSC;

Rule 7, Section 3 of the IRSC declares that the results of the raffle of cases shall only be available to the parties and their counsels, unless the cases involve bar matters, administrative cases and criminal cases involving the penalty of life imprisonment, which are treated with strict confidentiality and where the raffle results are not disclosed even to the parties them-selves.

(2) Court deliberations or the deliberations of the Members in court sessions on cases and mat-ters pending before the Court;

Rule 10, Section 2 of the IRSC provides that the actions taken in each case in the Court’s agenda, which are noted by the Chief Justice or the Division Chairman, are also to be treated with strict confidentiality.

Only after the official release of the resolution embodying the Court action may that action be made available to the public.

A resolution is considered officially released once the envelope containing its final copy, addressed to the parties, has been transmitted to the process server for personal service or to the mailing section of the Judicial Records Office.

IRSC provides:

Section 2. Confidentiality of court sessions. – Court ses-sions are executive in character, with only the Mem-bers of the Court present. Court deliberations are con-fidential and shall not be disclosed to outside parties, except as may be provided herein or as authorized by the Court.

Justice Abad discussed the rationale for the rule in his concurring opinion to the Court Resolution in Arroyo v. De Lima(TRO on Watch List Order case): the rules on confidentiality will enable the Members of the Court to “freely discuss the issues without fear of criti-cism for holding unpopular positions” or fear of humilia-tion for one’s comments. The privilege against disclo-sure of these kinds of information/communication is known as deliberative process privilege, involving as it does the deliberative process of reaching a decision. “Written advice from a variety of individuals is an im-portant element of the government’s decision-making process and that the interchange of advice could be stifled if courts forced the government to disclose those recommendations;”the privilege is intended “to prevent the ‘chilling’ of deliberative communications.”

(3) Court records which are “predecisional” and “delib-erative” in nature, in particular, documents and other communications which are part of or related to the de-liberative process, i.e., notes, drafts, research papers, internal discussions, internal memoranda, records of internal deliberations, and similar papers.

Court deliberations are traditionally recognized as privileged communication. Section 2, Rule 10 of the

While Section 2, Rule 10 of the IRSC speaks only of the confidentiality of court deliberations, it is understood that the rule extends to documents and other communications which are part of or are related to the deliberative process. The deliberative process privilege protects from disclosure documents reflecting advisory opinions, recommendations and deliberations

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emedial Law ReviewRSALVADOR Digeststhat are component parts of the process for formulat-ing governmental decisions and policies. Obviously, the privilege may also be claimed by other court offi-cials and employees when asked to act on these docu-ments and other communications.

To qualify for protection under the deliberative process privilege, the agency must show that the doc-ument is both (1) predecisional and (2) deliberative.

A document is “predecisional” under the delib-erative process privilege if it precedes, in temporal se-quence, the decision to which it relates.In other words, communications are considered predecisional if they were made in the attempt to reach a final conclusion.

A material is “deliberative,” on the other hand, if it reflects the give and take of the consultative process. The key question in determining whether the material is deliberative in nature is whether disclosure of the information would discourage candid discussion within the agency.

If the disclosure of the information would ex-pose the government’s decision making process in a way that discourages candid discussion among the de-cision-makers (thereby undermining the courts’ ability to perform their functions), the information is deemed privileged.

(4) Confidential Information secured by justices, judges, court officials and employees in the course of their official functions, mentioned in (2) and (3) above, are privileged even after their term of office.

(5) Records of cases that are still pending for decision are privileged materials that cannot be disclosed, ex-cept only for pleadings, orders and resolutions that have been made available by the court to the general public.

(6) The principle of comity or inter-departmental cour-tesy demands that the highest officials of each depart-ment be exempt from the compulsory processes of the other departments.

(7) These privileges belong to the Supreme Court as an institution, not to any justice or judge in his or her indi-vidual capacity. Since the Court is higher than the indi-vidual justices or judges, no sitting or retired justice or

judge, not even the Chief Justice, may claim exception without the consent of the Court

Note: Read this case in the original. It said so many things and cited many laws related to judicial privilege.

3. Privilege Communication

MERCADO VS. VITRIOLO

FACTS: Rosa Mercado is Senior Education Specialist of the Standards Development Division, Office of Pro-grams and Standards. Atty. Julito Vitriolo, on the other hand, is a Deputy Executive Director IV of the Commis-sion on Higher Education (CHED).

Rosa’s husband filed for an annulment of their marriage before the RTC of Pasig City. The latter dis-missed the annulment case and the dismissal became final and executory.

In August 1992, Atty. Anastasio de Leon, coun-sel of Rosa, died. On February 7, 1994, Atty. Vitriolo entered his appearance before the RTC as collaborat-ing counsel for Rosa.

On April 13, 1999, Atty. Vitriolo filed a criminal complaint against Rosa for Falsification of Public Docu-ment, alleging that Rosa made false entries in the Cer-tificates of Live Birth of her children and for indicating that she is married to a certain Ferdinand Fernandez when in truth, she is legally married to Ruben Mercado.

Rosa filed an administrative complaint against Atty. Vitriolo, seeking his disbarment from the bar. She claimed that in filing the criminal case for falsification, Atty. Vitriolo is guilty of breaching their privileged and confidential lawyer-client relationship, and should be dibarred.

On June 21, 2003, the IBP Board of Governors found Atty. Vitriolo guilty of violating the rule on privi-leged communication between attorney and client, and recommended his suspension from the practice of law for 1 year.

ISSUE: WON Atty. Vitriolo violated the rule on privi-leged communication between attorney and client when he filed a criminal case for falsification of public document against Rosa? NO

RULING: In engaging the services of an attorney, the client reposes on him special powers of trust and confi-dence. Their relationship is strictly personal and highly confidential and fiduciary. The relation is of such deli-cate, exacting and confidential nature that is required by necessity and public interest. Only by such confiden-tiality and protection will a person be encouraged to re-pose his confidence in an attorney. The hypothesis is that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of justice. Thus, the preservation and protection of that relation will encourage a client to entrust his legal problems to an attorney, which is of paramount impor-tance to the administration of justice. One rule adopted

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emedial Law ReviewRSALVADOR Digeststo serve this purpose is the attorney-client privilege: an attorney is to keep inviolate his client’s secrets or confidence and not to abuse them. Thus, the duty of a lawyer to preserve his client’s secrets and confidence outlasts the termination of the attorney-client relation-ship, and continues even after the client’s death. It is the glory of the legal profession that its fidelity to its client can be depended on, and that a man may safely go to a lawyer and converse with him upon his rights or supposed rights in any litigation with absolute assur-ance that the lawyer’s tongue is tied from ever disclos-ing it. With full disclosure of the facts of the case by the client to his attorney, adequate legal representation will result in the ascertainment and enforcement of rights or the prosecution or defense of the client’s cause.

In fine, the factors are as follows:(1) There exists an attorney-client relationship, or

a prospective attorney-client relationship, and it is by reason of this relationship that the client made the communication.

Matters disclosed by a prospective client to a lawyer are protected by the rule on privileged communication even if the prospec-tive client does not thereafter retain the lawyer or the latter declines the employment. The rea-son for this is to make the prospective client free to discuss whatever he wishes with the lawyer without fear that what he tells the lawyer will be divulged or used against him, and for the lawyer to be equally free to obtain information from the prospective client.

On the other hand, a communication from a (prospective) client to a lawyer for some purpose other than on account of the (prospec-tive) attorney-client relation is not privileged. Instructive is the case of Pfleider v. Palanca, where the client and his wife leased to their attorney a 1,328-hectare agricultural land for a period of ten years. In their contract, the parties agreed, among others, that a specified portion of the lease rentals would be paid to the client-lessors, and the remainder would be delivered by counsel-lessee to client's listed creditors. The client alleged that the list of creditors which he had “confidentially” supplied counsel for the purpose of carrying out the terms of payment contained in the lease con-tract was disclosed by counsel, in violation of their lawyer-client relation, to parties whose in-terests are adverse to those of the client. As the client himself, however, states, in the exe-cution of the terms of the aforesaid lease con-tract between the parties, he furnished counsel with the “confidential” list of his creditors. We ruled that this indicates that client delivered the list of his creditors to counsel not because of the professional relation then existing be-tween them, but on account of the lease agree-ment. We then held that a violation of the con-fidence that accompanied the delivery of that list would partake more of a private and civil

wrong than of a breach of the fidelity owing from a lawyer to his client.

(2) The client made the communication in confi-dence.

The mere relation of attorney and client does not raise a presumption of confi-dentiality. The client must intend the communi-cation to be confidential.

A confidential communication refers to information transmitted by voluntary act of dis-closure between attorney and client in confi-dence and by means which, so far as the client is aware, discloses the information to no third person other than one reasonably necessary for the transmission of the information or the accomplishment of the purpose for which it was given.Our jurisprudence on the matter rests on quies-

cent ground. Thus, a compromise agreement pre-pared by a lawyer pursuant to the instruction of his client and delivered to the opposing party, an offer and counter-offer for settlement, or a document given by a client to his counsel not in his profes-sional capacity, are not privileged communications, the element of confidentiality not being present.(3) The legal advice must be sought from the at-

torney in his professional capacity.The communication made by a client to

his attorney must not be intended for mere in-formation, but for the purpose of seeking legal advice from his attorney as to his rights or obli-gations. The communication must have been transmitted by a client to his attorney for the purpose of seeking legal advice.

If the client seeks an accounting ser-vice, or business or personal assistance, and not legal advice, the privilege does not attach to a communication disclosed for such purpose.

Applying all these rules to the case at bar, the SC held that the evidence on record fails to substantiate Rosa’s allegations. It noted that Rosa did not even specify the alleged com-munication in confidence disclosed by respon-dent. All her claims were couched in general terms and lacked specificity. She contends that Atty. Vitriolo violated the rule on privileged communication when he instituted a criminal action against her for falsification of public doc-uments because the criminal complaint dis-closed facts relating to the civil case for annul-ment then handled by Atty. Vitriolo. She did not, however, spell out these facts which will determine the merit of her complaint. The SC cannot be involved in a guessing game as to the existence of facts which Rosa must prove.

Indeed, Rosa failed to attend the hear-ings at the IBP. Without any testimony from Rosa as to the specific confidential information allegedly divulged by Atty. Vitriolo without her consent, it is difficult, if not impossible to deter-mine if there was any violation of the rule on privileged communication. Such confidential information is a crucial link in establishing a

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emedial Law ReviewRSALVADOR Digestsbreach of the rule on privileged communication between attorney and client. It is not enough to merely assert the attorney-client privilege. The burden of proving that the privilege applies is placed upon the party asserting the privi-lege.

4. Filial Privilege

PEOPLE OF THE PHILIPPINES V. ARTEMIO INVENCION

Facts: Artemio Invencion was charged before the Re-gional Trial Court of Tarlac with thirteen counts of rape committed against his 16-year-old daughter, Cynthia (his daughter with his first common-law-wife, Gloria Pa-gala).

During trial, the witnesses presented by the prosecution in its evidence in chief included Elven In-vencion, the son of Artemio with his second common-law wife. Elven testified that that sometime before the end of the school year in 1996, while he was sleeping in one room with his father, Cynthia, and two other younger brothers, he was awakened by Cynthia’s loud cries. Looking towards her, he saw his father on top of Cynthia, doing a pumping motion. After about two min-utes, his father put on his short pants. Elven further testified that Artemio was a very strict and cruel father and a drunkard. He angrily prohibited Cynthia from en-tertaining any of her suitors. .

The trial court convicted Artemio for one count of rape. Artemio challenges the competency and credi-bility of Elven as a witness. He argues that Elven, as his son, should have been disqualified as a witness against him under pursuant to the rule on filial privi-lege.

ISSUE/S: Whether or not Elven Invencion should be dis-qualified as a witness pursuant to the rule on filial privi-lege. – NO.

RATIO: There is no cogent reason to overturn the find-ings of the trial court on the culpability of Artemio. The competency of Elven to testify is not affected by Sec-tion 25, Rule 130 of the Rules of Court, otherwise known as the rule on “filial privilege.” This rule is not strictly a rule on disqualification because a descendant is not incompetent or disqualified to testify against an ascendant. The rule refers to a privilege not to testify, which can be invoked or waived like other privileges. As correctly observed by the lower court, Elven was not compelled to testify against his father; he chose to waive that filial privilege when he voluntarily testified against Artemio. Elven declared that he was testifying as a witness against his father of his own accord and only “to tell the truth.” Hence, his testimony is entitled to full credence.

L. EXTRAJUDICIAL CONFESSIONS/CONFESSION PEOPLE VS. MILLANO MUIT FACTS: Muit, Pancho, Dequillo, Romeo, Hermano and Ferraer were charged with kidnapping for ransom with

homicide and carnapping in two separate informations. The kidnapping for ransom with homicide and the car-napping were established by the direct testimony of Ferraer, Seraspe and Chavez. Ferraer testified on how the group approached and convinced him to let them use his house to keep the victim they planned to kidnap (Ong). They planned the crime in Fer-raer’s house and waited for the call from Romeo to in-form them when the victim would be at the construc-tion site. The group received a call from Romeo on 2 December 1997 informing them that the victim was al-ready at the construction site, and so they went there to carry out their plan. At the construction site, as testi-fied to by Seraspe and Chavez, Muit and the other members of the group pointed their guns at the victim and his companion and ordered them to lie prostrate on the ground. After getting the keys to the Pa-jero from Seraspe, they forced the victim to board the vehicle with Muit driving it. They immediately reported the kidnapping of the victim to the police and the kid-nappers were intercepted by the group led by Supt. Mission. Supt. Mission testified that the kidnappers re-fused to surrender and engaged the police in a shoot out in which the victim was among the casual-ties. Muit was one of the two persons who survived the shoot out, but was apprehended by the police. Pancho, Jr. returned to the house of Ferraer alone when the group did not arrive at their meeting place. Fer-raer, Pancho, Jr., andPancho, Sr. learned from the news that the group engaged the police in a shoot out and most of them were killed, and that Muit was arrested by the police. After investigation, the police were able to apprehend Pancho, Jr., Romeo, and Dequillo who all took part in the botched criminal conspiracy to kidnap the victim. During the investigation, Pancho, Jr., Dequi-llo, and Muit, with the assistance of their counsels and family members, executed extra judical confessions di-vulging their respective roles in the planning and exe-cution of the crimes. RTC found Muit, Pancho, Jr., De-quillo and Romeo guilty. The RTC held that mere de-nials and alibis of appellants cannot prevail over the positive declarations of the prosecution’s witnesses. CA affirmed.

Issue: WON the lower court erred in giving credence to the extra-judicial confessions of Pancho, Jr. and Dequi-llo, and to the sworn statement and testimony of Fer-raer in convicting them –NO! Ratio: (i only included the relevant issue which is on extra judicial confessions)

The extra judicial confessions of Pancho, Jr., Dequillo, and Muit strengthened the case against them. There is nothing on record to support appel-lants’ claim that they were coerced and tortured into executing their extra judicial confessions. One of the indicia of voluntariness in the execution of appellants’ extra judicial statements is that each contains many details and facts which the investigating officers could not have known and could not have supplied, without the knowledge and information given by appellants. Moreover, the appellants were assisted by their

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emedial Law ReviewRSALVADOR Digestslawyers when they executed their statements. Atty. Mallare testified that Pancho, Jr. and Dequillo exe-cuted their statements voluntarily and affixed their signatures after he talked with them alone and in-formed them of their constitutional rights. Muit, on the other hand, was assisted by counsels in each instance when he executed his two extra judicial confessions; his second statement was even witnessed by his un-cle, Bonifacio, and his brother, Dominador.Muit cannot just conveniently disclaim any knowledge of the con-tents of his extra judicial confession. Nevertheless, in Muit’s case, he was also positively identified by Seraspe and Chavez as the one who pointed a gun at them during the kidnapping and ordered them to lay prostrate on the ground.

Appellants’ claims of torture are not supported by medical certificates from the physical examinations done on them. These claims of torture were mere af-terthoughts as they were raised for the first time dur-ing trial; appellants did not even inform their family members who visited them while they were impris-oned about the alleged tortures. Dequillo, for his part, also had the opportunity to complain of the alleged torture done to him to the Department of Justice when he was brought there. Claims of torture are easily con-cocted, and cannot be given credence unless substan-tiated by competent and independent corroborating evidence.The extra judicial confessions of Pancho, Jr., Dequillo, and Muit also strengthened the prosecution’s case against Romeo. The rule that an extra judicial confes-sion is evidence only against the person making it rec-ognizes various exceptions. One such exception is where several extra judicial statements had been made by several persons charged with an offense and there could have been no collusion with reference to said several confessions, the fact that the statements are in all material respects identical is confirmatory of the confession of the co-defendants and is admissible against other persons implicated therein. They are also admissible as circumstantial evidence against the per-son implicated therein to show the probability of the latter’s actual participation in the commission of the crime and may likewise serve as corroborative evi-dence if it is clear from other facts and circum-stances that other persons had participated in the per-petration of the crime charged and proved. These are known as “interlocking confessions.”

Nonetheless, the RTC, in convicting Romeo, re-lied not only on the aforesaid extra judicial statements but also on Ferraer’s testimony that Romeo was intro-duced to him in his house as the informant when they were planning the kidnapping.

PEOPLE VS SATORRE

Facts: Herminiano Satorre was charged with the Mur-der of Romero Pantilgan. Wife of victim testified that while she was asleep, she was awakened by a gunshot. When she went out to the porch, she found her dead husband lying on the ground with a gunshot wound on his head.

Rufino Abayata, a baranggay kagawad, testi-fied that they went they went to the Pantilgan resi-dence to verify a report regarding a dead person. Rufino testified that Abraham Satorre, the accused’s fa-ther, admitted that it was his son who shot Pantilgan.

Flavio Gelle narrated that he accompanied Satorre and his father to the barangay captain. There, Satorre allegedly admitted killing Pantilgan. Cynthia Castanares, the Baranggay captain, corroborated Flavio’s story. She testified that Satorre admitted that he killed Pantilgan because the latter struck him with a piece of wood.

Satorre denies the charges and alleges that he was asleep at his home at the time of hte incident. He also denied his confession. The father corroborated his son’s story and denied accompanying him to the baranggay captain.

Note that these alleged confessions were not in writing.

Issue: Whether Satorre was proven guilty beyond rea-sonable doubt? NO

Held: Rules of Court defines an admission as an “act, declaration or omission of a party as to a relevant fact.” A confession, on the other hand is the “declara-tion of an accused acknowledging his guilt of the of-fense charged, or of any offense necessarily included therein.”

Evidently, Satorre’s alleged declaration owning up to the killing before the Barangay Captain was a confession. Since the declaration was not put in writing and made out of court, it is an oral extrajudicial confes-sion. There is no question as to the admissibility of ap-pellant’s alleged oral extrajudicial confession. The Rules of Court makes no distinction whether the con-fession is judicial or extrajudicial.

The rationale for the admissibility of a confes-sion is that if it is made freely and voluntarily, a confes-sion constitutes evidence of a high order since it is sup-ported by the strong presumption that no sane person or one of normal mind will deliberately and knowingly confess himself to be the perpetrator of a crime, unless prompted by truth and conscience. Accordingly, the basic test for the validity of a confession is – was it vol-untarily and freely made. Plainly, the admissibility of a confession in evidence hinges on its voluntariness.

The problem with appraising voluntariness oc-curs when the confession is an oral extrajudicial con-fession because the proof of voluntariness cannot be inferred from the testimony of a witness who allegedly heard the confessant since there is no written proof that such confession was voluntarily made. Neither can the confessant be appraised by the court since it was made outside the judicial proceeding.

On the question of whether a confession is made voluntarily, the age, character, and circum-stances prevailing at the time it was made must be considered. The intelligence of the accused or want of it must also be taken into account. It must be shown that the defendant realized the import of his act. In this case, Satorre was a 19yr old farmer who did not even finish 1st grade. Even if he did confess to the baranggay

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emedial Law ReviewRSALVADOR Digestscaptain, he may not have realized the full import of his confession and its consequences. Of course it’s entirely possible that he did admit to the act, but the problem is that the voluntariness of such oral confession is not definitively appraised or evaluated. At any rate, an ex-trajudicial confession forms only a prima facia case. They are not conclusive proof.

A confession is not required to be in any partic-ular form. It may be oral or written, formal or informal in character. It may be recorded on video tape, sound motion pictures, or tape. However, while not required to be in writing to be admissible in evidence, it is advis-able, if not otherwise recorded by video tape or other means, to reduce the confession to writing. This adds weight to the confession and helps convince the court that it was freely and voluntarily made.

Indeed, an extrajudicial confession will not sup-port a conviction where it is uncorroborated. There must be such corroboration that, when considered in connection with confession, will show the guilt of ac-cused beyond a reasonable doubt. Circumstantial evi-dence may be sufficient corroboration of a confession.

On the whole, it appears that the trial court simply based Satorre’s conviction on the testimonial evidence of prosecution witnesses. SC cannot affirm the conviction on mere testimonial evidence, consider-ing that the voluntariness of said confession cannot be conclusively established because of Satorre’s personal circumstances and the failure of the police to reduce the alleged oral confession into writing. [note: testi-mony of prosec witnesses had some discrepancies with regard to the establish facts of the case ie. Location of gunshot wound...etc)

M. POSITIVE IDENTIFICATION

PEOPLE V VILLACORTA GIL

FACTS: Gil was convicted of the crime of Destructive Arson with Homicide. On March 1, 1998, Gil set fire the residential house owned by Angge Arguelles and that the same resulted into the burning of other adjacent houses causing damage and the death of a certain Rodolfo Cabrera.

The circumstantial evidence of the prosecution consisted of the following: • the testimony of Kagawad Rodolfo Lorenzo about

the behavior and remarks of Gil at the time she caused a public disturbance and threatened to cause chaos and arson and to drag her neighbors into this turmoil, two days prior to the conflagra-tion;

• the testimony of Ronnie Gallardo that, when he saw the burning mattress in the room of the Gil, the latter said to him in the vernacular: "Pabayaan mo na iyan. Damay-damay na tayo.";

• the testimony of Kagawad Rodolfo Lorenzo that, at the time he tried to chase the Gil during the fire incident, he again heard her utter a nonchalant re-mark: "Damay-damay na tayo diyan, huwag ninyo nang patayin ang sunog."; and

• the testimony of Kagawad William Lim that the Gil approached and admitted to him immediately af-ter the incident that she was the person responsi-ble for the conflagration.

On the other hand, the Gil relied on her lone testimony in her defense. While she admitted the au-thenticity of her written confession (the one made be-fore William Lim), she denied on the witness stand that she voluntarily wrote the confession. According to Gil, the fire resulted from her defective gas stove which suddenly caught fire while she was boiling water. When the stove caught fire, she got flustered and poured wa-ter on the stove. To her surprise, the fire got bigger. Ronnie, who was also renting a room next to her with his mother, came and they helped each other to put off the fire. When their efforts seemed unsuccessful, she told Ronnie: "xxx hindi na natin kayang patayin ang apoy, baba na lang po kami para humingi ng tulong". When they went out, people were already helping each other to contain the fire. She then left the place pass-ing through an alley. According to her, it was William Lim who took custody of him for reasons unknown to her. Thereafter, they gave her a paper with something written on it and they instructed her to copy the same in another paper. Confused, she did what was told of her because they told her that it would be good for her.

ISSUE: 1. WON the CA erred in finding Gil guilty based on cir-cumstantial evidence – NO [WON Gil was positively identified by the circumstantial evidence presented by the prosecution – YES]2. WON the CA erred in considering as evidence the al-leged extrajudicial confession Gil made before William Lim - NO

HELD: Gil contends that the circumstantial evidence of the prosecution failed to produce the required quan-tum of proof to hold her criminally liable for the charge. She explained that prosecution witness Ronnie Gal-lardo saw her mattress already on fire but never saw her deliberately burn her mattress. Ronnie Gallardo neither saw nor identified any overt act which would suggest that the she intentionally put her mattress on fire. She claimed that Ronnie Gallardo might have got-ten anxious after he saw the raging fire and misunder-stood her remark "pabayaan mo na yan, damay-damay na tayo" when what she meant to say after all was "pabayaan mo na yan, madadamay tayo." She would not have pulled out Ronnie Gallardo from the burning house had her intention been to cause injury to others. She also disputed the TC’s reliance on the testimony of Kagawad Rodolfo Lorenzo that she inten-tionally burned her residential house because of per-sonal problems. She rhetorically questioned the credi-bility of the said prosecution witness when, as a person in authority, he failed to report to the police his sup-posed knowledge of what she was planning to do two days prior to the fire that occurred in their neighbor-hood.

The she also argues that her written confession is inadmissible in evidence. She claims that she was not assisted by counsel at the time she executed the

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emedial Law ReviewRSALVADOR Digestssame; and that she was merely led to believe, without apprising her of its legal significance, that it would help her.

1. NO. [YES] This court agrees with the CA that the RTC has passed upon enough circumstantial evidence to hold Gil guilty. As cited, People v. Gallarde, provides: Positive identification pertains essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. There are two types of positive identification. A witness may identify a suspect or accused in a criminal case as the perpetrator of the crime as an eyewitness to the very act of the commission of the crime. This constitutes di-rect evidence. There may, however, be instances where, although a witness may not have actually seen the very act of commission of a crime, he may still be able to positively identify a suspect or accused as the perpetrator of a crime as for instance when the latter is the person or one of the persons last seen with the vic-tim immediately before and right after the commission of the crime. This is the second type of positive identifi-cation, which forms part of circumstantial evidence, which, when taken together with other pieces of evi-dence constituting an unbroken chain, leads to the only fair and reasonable conclusion, which is that the ac-cused is the author of the crime to the exclusion of all others. If the actual eyewitness are the only ones al-lowed to possibly positively identify a suspect or ac-cused to the exclusion of others, then nobody can ever be convicted unless there is an eyewitness, because it is basic and elementary that there can be no conviction until and unless an accused is positively identified. Such a proposition is absolutely absurd, because it is settled that direct evidence of the commission of a crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. If resort to circumstantial evidence would not be allowed to prove identity of the accused on the absence of direct evi-dence, then felons would go free and the community would be denied proper protection. [Emphasis sup-plied]

The aforementioned circumstantial evidence would constitute positive identification of Gil as the perpetrator of the crime charged, to the exclusion of others. She was the person who had the motive to commit the crime, and the series of events following her threat to cause chaos and arson in her neighbor-hood -- the fire that started in her room, and her actua-tions and remarks during, as well as immediately be-fore and after the fire-- sufficiently points to the ac-cused-appellant as the author of the said crime.

We are not persuaded by the bare and uncor-roborated allegation of the Gil that the fire was acci-dental, and that she was arrested and forced by Ka-gawad William Lim to copy the contents of her written confession from a piece of paper handed to her by the said barangay official.

To quote a well-entrenched legal precept, the "factual findings of the trial court, its calibration of the testimonies of the witnesses and its assessment of their probative weight are given high respect, if not conclusive effect, unless it ignored, misconstrued, mis-

understood or misinterpreted cogent facts and circum-stances of substance, which, if considered, will alter the outcome of the case" and the said trial court "is in the best position to ascertain and measure the sincer-ity and spontaneity of witnesses through its actual ob-servation of the witnesses' manner of testifying, de-meanor and behavior while in the witness box."

The Gil failed to show any "misconstrued, mis-understood or misinterpreted cogent facts and circum-stances of substance" that could alter the outcome of the case. She also did not show any credible motive why the prosecution witnesses testified against her. Thus, this Court finds conclusive the findings and ob-servation of the TC that the testimonies of the prosecu-tion witnesses were candid and trustworthy, and that the testimony of the accused-appellant was not im-pressed with candor and honesty.

2. No. Regarding her extrajudicial confession, Gil made the confessions not only toKagawad William Lim but also to Kagawad Rodolfo Lorenzo while the fire was in progress. Moreover, as correctly held by the CA, even if the written extra-judicial confession is disregarded, the evidence presented by the prosecution is more than sufficient to prove the guilt of the Gil beyond reason-able doubt.

N. DOCUMENTED ALIBI

LEJANO V. PEOPLE

Facts: Estrellita, Carmela, and Jennifer Vizconde were murdered in their home in BF Homes, Paranaque. Among the accused in this case is Hubert Webb. He was convicted by the trial court and the appellate court based on the testimony of a “star witness”, Jessica Al-faro.

In her testimony, Alfaro stated that she was there when Webb and his companions raped and killed Carmela Vizconde. Her testimony also matched the physical evidence found the next day (such as the un-screwed lightbulb, the broken glass at the front door, the scattered contents of the bag, etc…)

In his defense of an alibi, Webb presented evi-dence (photocopies of his passport, letters to a friend, US certification of immigration, printout of his arrival and departure, etc…) to show that he was in the US when the crime was committed.

The trial court and CA ruled against Webb stat-ing that Webb was actually in Parañaque when the Viz-conde killings took place. They stated that he was not in the U.S. and if he did leave, he actually returned, committed the crime, erased the fact of his return to

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emedial Law ReviewRSALVADOR Digeststhe Philippines from the records of the U.S. and Philip-pine Immigrations, smuggled himself out of the Philip-pines and into the U.S., and returned the normal way.

They also stated that Webb’s alibi cannot stand against Alfaro’s positive identification of him as the rapist and killer of Carmela and, apparently, the killer as well of her mother and younger sister.

Issue: Did Webb have a valid alibi? YES.

Decision: To establish alibi, the accused must prove by positive, clear, and satisfactory evidence that (a) he was present at another place at the time of the perpe-tration of the crime, and (b) that it was physically im-possible for him to be at the scene of the crime.

The lower courts were wrong in theorizing that Webb used his influence in fixing such records. This is pure speculation since there had been no indication that such arrangement was made. Besides, how could Webb fix a foreign airlines’ passenger manifest, offi-cially filed in the Philippines and at the airport in the U.S. that had his name on them? How could Webb fix with the U.S. Immigration’s record system those two dates in its record of his travels as well as the dates when he supposedly departed in secret from the U.S. to commit the crime in the Philippines and then return there?

Webb’s documents were also authenticated by various departments (such as the DFA, and the US Im-migration). Lastly, if the SC were to subscribe to the lower courts’ extremely skeptical view, it might as well tear the rules of evidence out of the law books and re-gard suspicions, surmises, or speculations as reasons for impeaching evidence. It is not that official records, which carry the presumption of truth of what they state, are immune to attack. They are not. That pre-sumption can be overcome by evidence. Here, how-ever, the prosecution did not bother to present evi-dence to impeach the entries in Webb’s passport and the certifications of the Philippine and U.S.’ immigration services regarding his travel to the U.S. and back.

As for Alfaro, she was not a credible witness. A positive declaration from a witness that he saw the ac-cused commit the crime should not automatically can-cel out the accused’s claim that he did not do it. A lying witness can make as positive an identification as a truthful witness can. The lying witness can also say as forthrightly and unequivocally, "He did it!" without blinking an eye.

The positive identification must meet at least two criteria: First, the positive identification of the of-fender must come from a credible witness. She is credi-ble who can be trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her, its weight in gold.

And second, the witness’ story of what she per-sonally saw must be believable, not inherently con-trived. A witness who testifies about something she never saw runs into inconsistencies and makes bewil-dering claims.

Alfaro’s statements fail because she had prior access to the details that the investigators knew of the case. She did not show up at the NBI as a spontaneous witness bothered by her conscience. She had been hanging around that agency for some time as a stool pigeon, one paid for mixing up with criminals and squealing on them.

As such, she took advantage of her familiarity with these details to include in her testimony the clearly incompatible act of Webb hurling a stone at the front door glass frames even when they were trying to slip away quietly—just so she can accommodate this crime scene feature. This also applied to the other physical evidence found at the scene of the crime (such as the bag, the light bulb, etc…) She also failed to corroborate facts on the “sweetheart theory” between Webb and Vizconde.

Thus, Webb and the others were acquitted.

O. OFFER OF COMPROMISE

PEOPLE v. ERGUIZA

FACTS: Erguiza was found guilty of 1 count of rape, with a 13-y.o. minor as victim. At the back of a public school in Pangasinan, Erugiza, armed with a kitchen knife, forced AAA, a 1st year high school student, to have sexual intercourse with him. Erguiza ordered AAA to not tell anyone, otherwise he’d kill all her family.

The mother of the victim, BBB, had her daugh-ter examined when she missed her period. It was only at this time that the mother discovered the rape inci-dent, after prodding her daughter to confess. The mother and the victim then filed the criminal case.

CCC, the vicitm’s father, testified that the fam-ily of Erguiza went to their house after the case was filed, and offered 50k, later increased to 150k. Albina, the mother of the accused admitted that she did talk with BBB and CCC, but according to her, it was the spouses who asked for 1M, later reduced to 250k, to settle the case. She said her counter-offer was 5k only.

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emedial Law ReviewRSALVADOR DigestsIssue: Can the offer of compromise given by the mother of the accused be used as evidence of his guilt? – No.

Ruling: The alleged offer of the parents of accused to settle the case cannot be used against him as evidence of his guilt. Accused testified that he never asked his parents to settle the case. It was his parents’ initiative because they and the parents of the victim are actually in-laws and they did not want their relations to turn sour. Moreover, accused was not present when the of-fer to settle was allegedly made.

An offer of compromise from an unauthorized person cannot amount to an admission of the party himself. Although the Court has held in some cases that an attempt of the parents of the accused to settle the case is an implied admission of guilt, we believe that the better rule is that for a compromise to amount to an implied admission of guilt, the accused should have been present or at least authorized the proposed compromise.

Moreover, it has been held in other decisions of the court that where the accused was not present at the time the offer for monetary consideration was made, such offer of compromise would not save the day for the prosecution.

Accused acquitted, no proof beyond reasonable doubt (also on other grounds).

P. ADMISSION BY CONSPIRATOR

TAMARGO V. AWIGAN

Facts: Atty. Franklin V. Tamargo and his eight-year-old daughter, Gail Franzielle, were shot and killed. The po-lice had no leads on the perpetrators of the crime until a certain Reynaldo Geron surfaced and executed an affidavit dated September 12, 2003. He stated that a certain Lucio Columna told him during a drinking spree that Atty. Tamargo was ordered killed by respondent Lloyd Antiporda and that he (Columna) was one of those who killed Atty. Tamargo. He added that he told the Tamargo family what he knew and that the sketch of the suspect closely resembled Columna. Eventually Columna was arrested. Apart from him, there were other respondents.

On March 8, 2004, Columna executed an affi-davit wherein he admitted his participation as "look out" during the shooting and implicated respondent Romulo Awingan (alias "Mumoy") as the gunman and one Richard Mecate. He also tagged as masterminds respondent Licerio Antiporda, Jr. and his son, respon-dent Lloyd Antiporda. The former was the ex-mayor and the latter the mayor of Buguey, Cagayan at that time. When the killing took place, Licerio Antiporda was in detention for a kidnapping case in which Atty.

Tamargo was acting as private prosecutor. Respon-dents denied any involvement in the killings.

During the preliminary investigation, respon-dent Licerio presented Columna’s unsolicited handwrit-ten letter dated to respondent Lloyd, sent from Columna’s jail cell in Manila. In the letter, Columna dis-owned the contents of his March 8, 2004 affidavit and narrated how he had been tortured until he signed the extrajudicial confession. He stated that those he impli-cated had no participation in the killings. Respondent Licerio also submitted an affidavit of Columna dated May 25, 2004 wherein the latter essentially repeated the statements in his handwritten letter.

Due to the submission of Columna’s letter and affidavit, the investigating prosecutor set a clarificatory hearing, to enable Columna to clarify his contradictory affidavits and his unsolicited letter. During the hearing held on October 22, 2004, Columna categorically ad-mitted the authorship and voluntariness of the unso-licited letter. He affirmed the May 25, 2004 affidavit and denied that any violence had been employed to obtain or extract the affidavit from him. Thus, on No-vember 10, 2004, the investigating prosecutor recom-mended the dismissal of the charges. This was ap-proved by the city prosecutor.

Meanwhile, in another handwritten letter ad-dressed to City Prosecutor Ramon Garcia dated Octo-ber 29, 2004, Columna said that he was only forced to withdraw all his statements against respondents during the October 22, 2004 clarificatory hearing because of the threats to his life inside the jail. He requested that he be transferred to another detention center.

Aggrieved by the dismissal of the charges, peti-tioner filed an appeal to the Department of Justice (DOJ). On May 30, 2005, the DOJ, through then Secre-tary Raul M. Gonzalez, reversed the dismissal and or-dered the filing of the Informations for murder. He opined that the March 8, 2004 extrajudicial confession was not effectively impeached by the subsequent re-cantation and that there was enough evidence to prove the probable guilt of respondents. Later on Gonzalez reversed this finding and declared this extrajudicial confession inadmissible.

ISSUE: W/N there was probable cause against the other respondents given the rule on res inter alios acta? NO.

HELD: The lower court judge was wrong when it found probable cause against the othe respondents.

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emedial Law ReviewRSALVADOR DigestsWe agree with the CA that Judge Daguna lim-

ited herself only to the following: (1) Columna’s affi-davit dated March 8, 2004 wherein he implicated the respondents in the murders; (2) his affirmation of this affidavit during the April 19, 2004 clarificatory hearing; (3) his letter dated October 29, 2004 and (4) the May 30, 2005 DOJ resolution upholding the prosecutor’s rec-ommendation to file the murder charges.

She completely ignored other relevant pieces of evidence such as: (1) Columna’s May 3, 2004 letter to respondent Lloyd Antiporda narrating the torture he suffered to force him to admit his participation in the crimes and to implicate the respondents; (2) his May 25, 2004 affidavit where he stated that neither he nor the respondents had any involvement in the murders and (3) his testimony during the October 22, 2004 clar-ificatory hearing wherein he categorically affirmed his May 3, 2004 letter and May 25, 2004 affidavit.

Moreover, Judge Daguna failed to consider that Columna’s extrajudicial confession in his March 8, 2004 affidavit was not admissible as evidence against re-spondents in view of the rule on res inter alios acta.

The rule on res inter alios acta provides that the rights of a party cannot be prejudiced by an act, declaration, or omission of another. Consequently, an extrajudicial confession is binding only on the confes-sant, is not admissible against his or her co-accused and is considered as hearsay against them. The reason for this rule is that:

on a principle of good faith and mutual convenience, a man’s own acts are binding upon himself, and are evidence against him. So are his conduct and declarations. Yet it would not only be rightly inconvenient, but also mani-festly unjust, that a man should be bound by the acts of mere unautho-rized strangers; and if a party ought not to be bound by the acts of strangers, neither ought their acts or conduct be used as evidence against him.

An exception to the res inter alios acta rule is an admission made by a conspirator un-der Section 30, Rule 130 of the Rules of Court:

Admission by conspirator. — The act or declaration of a conspirator relating to the conspiracy and during its exis-tence, may be given in evidence against the co-conspirator after the

conspiracy is shown by evidence other than such act or declaration.

This rule prescribes that the act or declaration of the conspirator relating to the conspiracy and during its existence may be given in evidence against co-con-spirators provided that the conspiracy is shown by in-dependent evidence aside from the extrajudicial con-fession. Thus, in order that the admission of a conspira-tor may be received against his or her co-conspirators, it is necessary that (a) the conspiracy be first proved by evidence other than the admission itself (b) the ad-mission relates to the common object and (c) it has been made while the declarant was engaged in carry-ing out the conspiracy. Otherwise, it cannot be used against the alleged co-conspirators without violating their constitutional right to be confronted with the wit-nesses against them and to cross-examine them.

Here, aside from the extrajudicial confession, which was later on recanted, no other piece of evi-dence was presented to prove the alleged conspiracy. There was no other prosecution evidence, direct or cir-cumstantial, which the extrajudicial confession could corroborate. Therefore, the recanted confession of Columna, which was the sole evidence against respon-dents, had no probative value and was inadmissible as evidence against them.

Considering the paucity and inadmissibility of the evi-dence presented against the respondents, it would be unfair to hold them for trial. Once it is ascertained that no probable cause exists to form a sufficient belief as to the guilt of the accused, they should be relieved from the pain of going through a full blown court case. When, at the outset, the evidence offered during the preliminary investigation is nothing more than an un-corroborated extrajudicial confession of an alleged con-spirator, the criminal complaint should not prosper so that the system would be spared from the unnecessary expense of such useless and expensive litigation.

Q. SIMILAR CONDUCT

BOSTON BANK (FORMERLY BANK OF COMMERCE) V. PERLA MANALO AND CARLOS MANALO.

Facts: Xavierville Estate, Inc. (XEI) sold to The Over-seas Bank of Manila (OBM) some residential lots in Xavierville subdivision. Nevertheless, XEI continued selling the residential lots in the subdivision as agent of OBM. Carlos Manalo, Jr. proposed to XEI, through its President Emerito Ramos, to purchase two lots in the Xavierville subdivision and offered as part of the down-payment the P34,887.66 Ramos owed him. XEI, through Ramos, agreed. In a letter dated August 22,

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emedial Law ReviewRSALVADOR Digests1972 to Perla Manalo, Ramos confirmed the reserva-tion of the lots. In the letter he also pegged the price of the lots at P348,060 with a 20% downpayment of the purchase price amounting to P69,612.00 (less the P34,887.66 owing from Ramos), payable as soon as XEI resumes its selling operations; the corresponding Con-tract of Conditional Sale would then be signed on or be-fore the same date. Perla Manalo conformed to the let-ter agreement. Thereafter, the spouses constructed a house on the property. The spouses were notified of XEI’s resumption of selling operations. However, they did not pay the balance of the downpayment because XEI failed to prepare a contract of conditional sale and transmit the same to them. XEI also billed them for un-paid interests which they also refused to pay.

XEI turned over its selling operations to OBM. Subsequently, Commercial Bank of Manila (CBM) ac-quired the Xavierville Estate from OBM. CBM requested Perla Manalo to stop any on-going construction on the property since it (CBM) was the owner of the lot and she had no permission for such construction.

Perla informed them that her husband had a contract with OBM, through XEI, to purchase the prop-erty. She promised to send CBM the documents. How-ever, she failed to do so. Thus, CBM filed a complaint for unlawful detainer against the spouses. But later on, CBM moved to withdraw its complaint because of theis-sues raised. In the meantime, CBM was renamed the Boston Bank of the Philippines.

Then, the spouses filed a complaint for specific performance and damages against the bank before the RTC. The spouses alleged that they had always been ready and willing to pay the installments on the lots sold to them but no contract was forthcoming. The spouses further alleged that upon their partial payment of the downpayment, they were entitled to the execu-tion and delivery of a Deed of Absolute Sale covering the subject lots. During the trial, the spouses adduced in evidence the separate Contracts of Conditional Sale executed between XEI and 3 other buyers to prove that XEI continued selling residential lots in the subdivision as agent of OBM after the latter had acquired the said lots.

The trial court ordered the petitioner to exe-cute a Deed of Absolute Sale in favor of the spouses upon the payment of the spouses of the balance of the purchase price. It ruled that under the August 22,1972 letter agreement of XEI and the spouses, the parties had a "complete contract to sell" over the lots, and that they had already partially consummated the same.

The Court of Appeals sustained the ruling of the RTC, but declared that the balance of the purchase price of the property was payable in fixed amounts on a monthly basis for 120 months, based on the deeds of conditional sale executed by XEI in favor of other lot buyers. Boston Bank filed a Motion for the Reconsidera-tion of the decision alleging that there was no per-fected contract to sell the two lots, as there was no agreement between XEI and the respondents on the manner of payment as well as the other terms and con-ditions of the sale. Boston Bank also asserts that there is no factual basis for the CA ruling that the terms and conditions relating to the payment of thebalance of the purchase price of the property (as agreed upon by XEI and other lot buyers in the same subdivision) were also applicable to the contract entered into between the pe-titioner and the respondents.

CA denied the MR.

ISSUES: Whether or not the CA correctly held that the terms of the deeds of conditional sale executed by XEI in favor of the other lot buyers in the subdivision, which contained uniform terms of 120 equal monthly installments, constitute evidence that XEI also agreed to give the Manalo spouses the same mode and time-line of payment. (Evidence, Disputable Presumptions, Habits and Customs Rule 130, Section 34) – NO.

HELD: The bare fact that other lot buyers were allowed to pay the balance of the purchase price of lots pur-chased by them in 120 or 180 monthly installments does not constitute evidence that XEI also agreed to give the respondents the same mode and timeline of payment.

Under Section 34, Rule 130 of the Revised Rules of Court, evidence that one did a certain thing at one time is not admissible to prove that he did the same or similar thing at another time, although such evidence may be received to prove habit, usage, pat-tern of conduct or the intent of the parties. Habit, cus-tom, usage or pattern of conduct must be proved like any other facts. The offering party must establish the degree of specificity and frequency of uniform re-sponse that ensures more than a mere tendency to act in a given manner but rather, conduct that is semi-au-tomatic in nature. The offering party must allege and prove specific, repetitive conduct that might constitute evidence of habit. The examples offered in evidence to prove habit, or pattern of evidence must be numerous enough to base on inference of systematic conduct. Mere similarity of contracts does not present the kind

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emedial Law ReviewRSALVADOR Digestsof sufficiently similar circumstances to outweigh the danger of prejudice and confusion. In determining whether the examples are numerous enough, and suffi-ciently regular, the key criteria are adequacy of sam-pling and uniformity of response. It is only when exam-ples offered to establish pattern of conduct or habit are numerous enough to lose an inference of systematic conduct that examples are admissible.

Respondents failed to allege and prove that, as a matter of business usage, habit or pattern of conduct, XEI granted all lot buyers the right to pay the balance of the purchase price in installments of 120 months of fixed amounts with pre-computed interests, and that XEI and the respondents had intended to adopt such terms of payment relative to the sale of the two lots in question. Indeed, respondents adduced in evidence the three contracts of conditional sale executed by XEI and other lot buyers merely to prove that XEI continued to sell lots in the subdivision as sales agent of OBM after it acquired said lots, not to prove usage, habit or pat-tern of conduct on the part of XEI to require all lot buy-ers in the subdivision to pay the balance of the pur-chase price of said lots in 120 months.

R. DYING DECLARATION

PEOPLE V TABARNERO

FACTS: The accused in this case are Gary Tabarnero and Alberto Tabarnero, father and son respectively. They were charged and convicted by the RTC and CA of the crime of murder for the death of Ernesto Cana-toy.

Gary and Ernesto’s step daughter Mary Jane were lovers and living together in Ernesto’s place. When Ernesto knew of their relationship, he got mad and tried to separate them together. Gary claims that while he pleaded to Ernesto to let them continue their relationship, the latter suddenly attacked the former and when Gary felt that Ernesto had a bladed weapon tucked in his waist, Gary immediately grabbed it and stabbed Ernesto by way of self defense. Alberto, on the other hand denied having participated in the crime and claimed that when he went looking for his son Gary, the latter told him that he may have killed Ernesto, both fled in different directions until Gary surrendered, followed by Alberto.

SPO2 Morales testified that he was on duty on the night of the incident and that a housemate of Ernesto came to report the incident. He then went to the hospital where Ernesto was brought and asked him questions regarding the assailants. Ernesto allegedly confirmed that Alberto and Gary were the culprits. However, Ernesto was not able to sign the Sinumpaang Salaysay because he could no longer answer the suc-ceeding questions. Then he died.

RTC and CA convicted both accused of the crime of murder.

ISSUE: Whether or not both courts a quo are correct in finding that Gary and Alberto conspired to kill Ernesto – YES

HELD: The participation of Alberto as co-conspirator and therefore principal by direct participation was es-tablished by the dying declaration of Ernesto. As an ex-ception to hearsay evidence, it must be shown that a dying declaration was made under a realization by the decedent that his demise or at least, its imminence -- not so much the rapid eventuation of death -- is at hand. This may be proven by the statement of the de-ceased himself or it may be inferred from the nature and extent of the decedent's wounds, or other relevant circumstances.

In the case at bar, Ernesto had nine stab wounds which caused his death within the next 48 hours. At the time he uttered his statement accusing Gary and Alberto of stabbing him, his body was already very rapidly deteriorating, as shown by his inability to speak and write towards the end of the questioning.

We have considered that a dying declaration is entitled to the highest credence, for no person who knows of his impending death would make a careless or false accusation. When a person is at the point of death, every motive of falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth. It is hard to fathom that Ernesto, very weak as he was and with his body already manifesting an impending demise, would summon every remaining strength he had just to lie about his true assailants, whom he obviously would want to bring to justice.

S. RES GESTAE

MARTURILLAS vs. PEOPLE

Facts: Marturillas was found guilty of homicide for the death of Artemio Pantinople. According to the prosecu-tion witnesses, Artemio was eater dinner in the house of Lito Santos, his neighbor. After eating, Artemio went outside and sat on a bench in front of his store. While Lito was eating, he heard a gunshot and then moments later, he saw Artemio staggering backwards towards his [Lito’s] kitchen (the kitchen was open). Artemio shouted to Lito, “Help me, Pre, I was shot by the cap-tain!” The other witnesses for the prosecution, includ-ing Artemio’s wife, also testified that they heard Artemio shout the same thing. Moreover, Artemio’s wife also made this statement, “Captain, why did you shoot my husband?” It was likewise testified that Mar-turillas was seen fleeing the scene (it rhymes) after Artemio was shot. The trial court considered the state-ment made by Artemio as either his dying declaration or as part of res gestae. The CA agreed, affirming the conviction of Marturillas.

Issue: W/N the statement made by Artemio is part of res gestae? YES! SC affirmed the conviction.

Held/Ratio:First of all, was it a dying declaration? Yes! It complied with the requisites.

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emedial Law ReviewRSALVADOR DigestsTo be admissible, a dying declaration must 1)

refer to the cause and circumstances surrounding the declarant’s death; 2) be made under the consciousness of an impending death; 3) be made freely and voluntar-ily without coercion or suggestions of improper influ-ence; 4) be offered in a criminal case, in which the death of the declarant is the subject of inquiry; and 5) have been made by a declarant competent to testify as a witness, had that person been called upon to testify.

Just because it falls under dying declaration doesn’t preclude it from being admitted as part of res gestae

The fact that the victim’s statement consti-tuted a dying declaration does not preclude it from be-ing admitted as part of the res gestae, if the elements of both are present. Section 42 of Rule 130

Part of the res gestae. -- Statements made by a person while a startling occurrence is taking place or immediately prior or subsequent thereto with respect to the circumstances thereof, may be given in evidence as part of the res gestae. So, also, statements accom-panying an equivocal act material to the issue, and giv-ing it a legal significance, may be received as part of the res gestae.

What is Res Gestae?Res gestae refers to statements made by the

participants or the victims of, or the spectators to, a crime immediately before, during, or after its commis-sion. These statements are a spontaneous reaction or utterance inspired by the excitement of the occasion, without any opportunity for the declarant to fabricate a false statement. An important consideration is whether there intervened, between the occurrence and the statement, any circumstance calculated to divert the mind and thus restore the mental balance of the declarant; and afford an opportunity for deliberation.

Requisites for res gestae 1) the principal act, the res gestae, is a star-

tling occurrence; 2) the statements were made before the declarant had time to contrive or devise; and 3) the statements concerned the occurrence in question and its immediately attending circumstances.

All these requisites are present in this case. The principal act, the shooting, was a startling occur-rence. Immediately after, while he was still under the exciting influence of the startling occurrence, the vic-tim made the declaration without any prior opportunity to contrive a story implicating petitioner. Also, the dec-laration concerned the one who shot the victim. Thus, the latter’s statement was correctly appreciated as part of the res gestae.Aside from the victim’s statement, which is part of the res gestae, that of his wife -- "Captain, why did you shoot my husband?" -- may be considered to be in the same category. Her statement was about the same startling occurrence; it was uttered spontaneously, right after the shooting, while she had no opportunity to concoct a story against petitioner; and it related to the circumstances of the shooting.

T. ENTRIES IN THE REGULAR COURSE OF BUSINESS

SECURITY BANK V GAN

FACTS: Eric Gan opened a current account with Secu-rity Bank. Mr. Qui, branch manager, allegedly allowed Gan a special arrangement to transfer funds from his account to another person’s account. Gan availed him-self of this several times by depositing checks in his ac-count, and even before they cleared, he withdrew the proceeds thereof and transferred them to the other ac-count. These transactions were covered by what were known as "debit memos" since Gan had no sufficient funds to cover the amounts he transferred. Later on, Gan purportedly incurred an overdraft or negative bal-ance in his account. The overdraft balance came up to P154k. According to Security Bank, Gan refused to heed its repeated demands for payment. The payable ballooned to P300k, with interests applied. Security Bank filed a sum of money case; Gan claimed that the alleged overdraft resulted from transactions done with-out his knowledge and consent. Lower courts dismissed the case: no proof of money owed.

Issue: Did the ledger cards and the testimony of Mr. Patricio Mercado constitute the best evidence of the transactions made by Security Bank relative to Gan’s account? No.

Held: Under Rule 45, only questions of law, not of fact, may be raised before the SC Here, both the trial court and the CA found that the bank failed to substantiate its claim that Gan knowingly incurred an overdraft against his account. No reason to disturb this finding.

To prove its claim, Security Bank presented Patricio Mercado, the bookkeeper who handled Gan’s account and recorded his transactions in a ledger. Based on this ledger, Gan allegedly had a negative bal-ance of P154k. This resulted from transfers of funds from Gan’s current account to another person’s ac-count. These transfers were made under the authority of Mr. Qui, the branch manager. Gan categorically de-nied that he ever authorized these "funds transfers."

The entries in the ledger, as testified to by Mer-cado, were not competent evidence to prove that Gan consented to the transfers of funds. These entries merely showed that the transfers were indeed made and that Qui approved them. Security Bank’s claim that Gan availed of a special arrangement to transfer funds from his account to another person’s account was a bare allegation that was never substantiated. Admittedly, Mercado had no personal knowledge of this arrangement. In fact, when asked about the details of the alleged consent given by respondent to the trans-fers, he stated that he could not remember because re-spondent talked to Qui and not to him. Security Bank could have presented Qui whom they alleged allowed the special arrangement with Gan. But it did not.

Neither can we accept the bank’s argument that the entries made by Mercado in the ledger were competent evidence to prove how and when the nega-tive balance was incurred. The bank invokes Section 43 of Rule 130:

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emedial Law ReviewRSALVADOR DigestsEntries in the course of business. – Entries

made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such per-son made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty.Under this exception to the hearsay rule, the admission in evidence of entries in corporate books required the satisfaction of the following conditions:

1. the person who made the entry must be dead, or unable to testify;2. the entries were made at or near the time of the transactions to which they refer;3. the entrant was in a position to know the facts stated in the entries;4. the entries were made in his professional ca-pacity or in the performance of a duty, whether legal, contractual, moral or religious; and5. the entries were made in the ordinary or reg-ular course of business or duty. The ledger entries did not meet the first and

third requisites. Mercado, petitioner’s bookkeeper who prepared the entries, was presented to testify on the transactions pertaining to the account of respondent. It was in the course of his testimony that the ledger en-tries were presented. There was, therefore, neither jus-tification nor necessity for the presentation of the en-tries as the person who made them was available to testify in court.

Moreover, Mercado had no personal knowledge of the facts constituting the entries, particularly those entries which resulted in the negative balance. He had no knowledge of the truth or falsity of these entries. The bank submits that the ledger cards constituted the best evidence of the transactions made by Gan with the bank relative to his account, pursuant to Section 43 of Rule 130 of the Revised Rules on Evidence. There is no question that the entries in the ledgers were made by one whose duty it was to record transactions in the ordinary or regular course of the business. But for the entries to be prima facie evidence of the facts recorded, the Rule interpose[s] a very important condi-tion, one which we think is truly indispensable to the probative worth of the entries as an exception to the hearsay rule, and that is that the entrant must be "in a position to know the facts therein stated." Undeniably, Mr. Mercado was in a position to know the facts of the check deposits and withdrawals. But the transfers of funds through the debit memos in question?

Let us be clear, at the outset, what the transac-tions covered by the debit memos are. They are, at bottom, credit accommodations said to have been granted by the bank’s branch manager Mr. [Q]ui to Gan, and they are, therefore loans, to prove which competent testimonial or documentary evidence must be presented. In the fac[e] of the denial by the defen-dant of the existence of any such agreement, and the absence of any document reflecting it, the testimony of a party to the transaction, i.e., Mr. [Q]ui, or of any wit-ness to the same, would be necessary. The plaintiff failed to explain why it did not or could not present any party or witness to the transactions, but even if it had a

reason why it could not, it is clear that the existence of the agreements cannot be established through the tes-timony of Mr. Mercado, for he was [not in] a position to [know] those facts. As a subordinate, he could not have done more than record what was reported to him by his superior the branch manager, and unless he was al-lowed to be privy to the latter’s dealings with the de-fendant, the information that he received and entered in the ledgers was incapable of being confirmed by him.

There is good reason why evidence of this na-ture is incorrigibly hearsay. Entries in business records which spring from the duty of other employees to com-municate facts occurring in the ordinary course of busi-ness are prima facie admissible, the duty to communi-cate being itself a badge of trustworthiness of the en-tries, but not when they purport to record what were independent agreements arrived at by some bank offi-cials and a client. In this case, the entries become mere casual or voluntary reports of the official con-cerned. To permit the ledgers, prepared by the bank at its own instance, to substitute the contract as proof of the agreements with third parties, is to set a danger-ous precedent. Business entries are allowed as an ex-ception to the hearsay rule only under certain condi-tions specified in Section 43, which must be scrupu-lously observed to prevent them from being used as a source of undue advantage for the party preparing them.

Thus, petitioner did not prove that respondent had incurred a negative balance in his account. Conse-quently, there was nothing to show that respondent was indebted to it in the amount claimed.

U. COMMERCIAL LIST

MERALCO V. QUISUMBING (Sec. of Labor) and Meralco Employees and Workers Assoc. (MEWA) (2000)

FACTS: In the 1999 labor case decided by the SC in-volving the same parties, the issue of the validity of the Sec. of Labor’s resolution regarding a wage award was put in issue. The SC ruled in the 1999 case that in determining the amount of such award, the focal point in the consideration is the projected net income of Mer-alco for 1996. Based on financial reports of its actual performance, MERALCO projected that the net operat-ing income for 1996 was 4.171 Billion. On the other hand, the Union, by relying heavily on a newspaper re-port citing an all Asia capital financial analyst (All Asia Capital Report), placed the 1996 net operating income at 5.795 Billion. The Court ruled that the Sec. of Labor gravely abused its discretion in relying solely on the evidence presented by MEWA, namely the All Asia Cap-ital Report, in fixing the wage award at P2,200. The SC further stated that the All-Asia Capital Report was noth-ing more than a newspaper report that did not show any specific breakdown or computations, and that the Sec. of Labor should have given more weight on the evidence presented by Meralco. Dissatisfied with the SC decision, the Union filed a MR.

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emedial Law ReviewRSALVADOR DigestsISSUE: W/N the All Asia Capital Report can be an accu-rate basis and conclusive determinant of the rate of wage increase?

HELD/RATIO: NO.

Section 45 of Rule 130 Rules of Evidence provides:Commercial lists and the like. — Evidence of statements of matters of interest to persons engaged in an occupation contained in a list, register, periodical, or other published compila-tion is admissible as tending to prove the truth of any relevant matter so stated if that compi-lation is published for use by persons engaged in that occupation and is generally used and relied upon by them therein.

Under this rule, statement of matters contained in a periodical, may be admitted only "if that compila-tion is published for use by persons engaged in that oc-cupation and is generally used and relied upon by them therein." As correctly held in the 1999 Decision, the cited report is a mere newspaper account and not even a commercial list. At most, it is but an analysis or opinion which carries no persuasive weight for pur-poses of this case as no sufficient figures to support it were presented. Neither did anybody testify to its accu-racy. It cannot be said that businessmen generally rely on news items such as this in their occupation. Be-sides, no evidence was presented that the publication was regularly prepared by a person in touch with the market and that it is generally regarded as trustworthy and reliable. Absent extrinsic proof of their accuracy, these reports are not admissible. In the same manner, newspapers containing stock quotations are not admis-sible in evidence when the source of the reports is available. With more reason, mere analyses or projec-tions of such reports cannot be admitted. In particular, the source of the report in this case can be easily made available considering that the same is necessary for compliance with certain governmental requirements.

V. OPINION RULE

TURADIO DOMINGO V. DOMINGO FAMILY AND THE REGISTER OF DEEDS

FACTS: Petitioner and the four private respondents are siblings. Petitioner is the eldest child. The family quar-rel arose over the validity of a sale of the house of their father to the 4 respondents.

Bruno Domingo (hereinafter called “Father Domingo” – he’s not a priest) in the 70s needed money for his medical expenses. So what he did was to sell the subject land to the respondents. New TCT was is-sued in the name of Respondents. Petitioner only learned of the deed of sale in 1981 when an ejectment suit was filed against him by the respondents.

Petitioner went to the PNP crime lab to have the signature of Father Domingo examined. The PNP came out with a report that the signature on the Deed was not Father Domingo’s. This report was confirmed by another PNP report.

Petitioner field a criminal complaint for falsifi-cation but the prosecutor dismissed the case on the basis NBI report that the signature was genuine.

Now, Petitioner filed a complaint for the decla-ration of Nullity of the Deed of Sale. Petitioner’s con-tention is that the signature of Father Domingo was forged. Respondents rely on the findings of the NBI that the signature was authentic.

RTC dismissed the case and disregarded the PNP and NBI conflicting reports. CA affirmed RTC.

ISSUE: Is the Signature forged? NO. SC affirms CA. Case dismissed.

HELD: Under the Rules of Court, the genuineness of a handwriting may be proved by the following:

(1) A witness who actually saw the person writing the instrument;

(2) A witness familiar with such handwrit-ing and who can give his opinion thereon, such opinion being an excep-tion to the opinion rule;

(3) A comparison by the court of the ques-tioned handwriting and admitted gen-uine specimen thereof; and

(4) Expert evidence.The law makes no preference in the manner of

proving the handwriting of a person. And the Court is not mandated to give probative weight or evidentiary value to the opinion of handwriting experts since resort to experts is not mandatory.

The lower courts correctly disregarded the PNP report since the comparison was made between docu-ments written eight years apart. The passage of time and a person’s increase in age may have decisive influ-ence in his handwriting characteristics. Thus, in order to bring about an accurate comparison and analysis, the standards of comparison must be as close as possi-ble in point of time to the suspected signature.

Here the testimony of three respondents to the effect that they saw Father Domingo sign the Deed is unrebutted. Genuineness of a handwriting may be proven, under Rule 132, Section 22, by anyone who ac-tually saw the person write or affix his signature on a document.

Moreover, the Deed is a notarized document and as such is prima facie evidence of the facts therein stated unless contradicted by clear evidence, which pe-titioner failed to show.

W. CHARACTER EVIDENCE

PEOPLE v. NOEL LEE

Facts: At the time of the commission of the crime, Her-minia Marquez and her son, Joseph, were in the living room of their house watching a basketball game on the television. The living room was brightly lit. Herminia was seated on an armchair and across her Joseph sat on a sofa, which against the wall and window of their house, the television was to his right.  Herminia looked away from the game and casually glanced at her son. To her complete surprise, she saw a hand holding a gun coming out of the open window behind Joseph. She

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emedial Law ReviewRSALVADOR Digestslooked up and saw Lee peering through the window and holding the gun aimed at Joseph. Before she could warn him, Joseph turned his body towards the window, and simultaneously, Lee fired his gun hitting Joseph’s head. Joseph slumped on the sofa. Herminia stood up but could not move as Lee fired a second shot at Joseph and 3 shots more— two hit the sofa and one the cement floor. When no more shots were fired, Herminia ran to the window and saw Lee, in a blue sando, flee towards the direction of his house. With the aid of her neighbor and kumpare, Herminia brought Joseph to the MCU Hospital where he later died.

Herminia filed a complaint for murder against Lee. The complaint was dismissed for insufficiency of evidence. Herminia appealed to the Secretary of Jus-tice. Secretary of Justice Bello III set aside the Resolu-tion and ordered the City Prosecutor of Caloocan to file the information for murder against Lee. 

Lee is a well-known figure in their neighbor-hood and has several criminal cases pending against him in Caloocan City. He was charged with frustrated homicide in 1984 (dismissed due to victim’s desis-tance) and attempted murder in 1989 (real assailant appeared and admitted the crime). He denies the killing of Joseph Marquez (claims that was in house at the time of the crime and was having some drinks with his neighbour, Bermudez, and his driver, Columba). Lee had known the victim since childhood and their houses are only two blocks apart.

Joseph had a bad reputation in their neighbor-hood as a thief and drug addict. Six days before his death, Lee caught Joseph inside his car trying to steal his car stereo. Joseph scampered away. As proof of the victim’s bad reputation, Lee presented a letter hand-written by Herminia, addressed to Mayor Malonzo of Caloocan City. In the letter, Herminia was surrendering her son to the Mayor for rehabilitation because he was hooked on shabu and was a thief. Herminia was scared that eventually Joseph might not just steal but kill her and everyone in their household because of his drug habit.

RTC convicted Lee of murder and sentenced him to the penalty of death. Case went up to SC on au-tomatic review.

Issue: W/N Joseph’s bad reputation is admissible as character evidence (Rule 130, sec.8, par. a.3) to estab-lish Lee’s innocence? No, character of offended party immaterial.

Held and Ratio: Lee alleges that the Joseph’s drug habit led him to commit other crimes and he may have been shot by any of the persons from whom he had stolen. As proof of Joseph’s bad character, Lee pre-sented Herminia’s letter to Mayor Malonzo. On rebuttal, Herminia admitted that she wrote such letter to Mayor Malonzo but denied anything about her son’s thievery.

Character evidence is governed by Section 51, Rule 130 of the Revised Rules on Evidence. Character is defined to be the possession by a person of certain qualities of mind and morals, distinguishing him from others. It is the opinion generally entertained of a per-son derived from the common report of the people who are acquainted with him; his reputation. “Good moral

character” includes all the elements essential to make up such a character; among these are common hon-esty and veracity, especially in all professional inter-course; a character that measures up as good among people of the community in which the person lives, or that is up to the standard of the average citizen; that status which attaches to a man of good behavior and upright conduct.

The rule is that the character or reputation of a party is regarded as legally irrelevant in determining a controversy, so that evidence relating thereto is not admissible. Ordinarily, if the issues in the case were al-lowed to be influenced by evidence of the character or reputation of the parties, the trial would be apt to have the aspects of a popularity contest rather than a fac-tual inquiry into the merits of the case. After all, the business of the court is to try the case, and not the man; and a very bad man may have a righteous cause. There are exceptions to this rule however and Section 51, Rule 130 gives the exceptions in both crim-inal and civil cases.

In criminal cases, sub-paragraph 1 of Section 51 of Rule 130 provides that the accused may prove his good moral character which is pertinent to the moral trait involved in the offense charged. When the accused presents proof of his good moral character, this strengthens the presumption of innocence, and where good character and reputation are established, an inference arises that the accused did not commit the crime charged. This view proceeds from the theory that a person of good character and high reputation is not likely to have committed the act charged against him. Sub-paragraph 2 provides that the prosecution may not prove the bad moral character of the accused except only in rebuttal and when such evidence is per-tinent to the moral trait involved in the offense charged.  This is intended to avoid unfair prejudice to the accused who might otherwise be convicted not be-cause he is guilty but because he is a person of bad character. The offering of character evidence on his be-half is a privilege of the defendant, and the prosecution cannot comment on the failure of the defendant to pro-duce such evidence. Once the defendant raises the is-sue of his good character, the prosecution may, in re-buttal, offer evidence of the defendant’s bad character. Otherwise, a defendant, secure from refutation, would have a license to unscrupulously impose a false char-acter upon the tribunal.

Both sub-paragraphs (1) and (2) of Section 51 of Rule 130 refer to character evidence of the ac-cused. And this evidence must be “pertinent to the moral trait involved in the offense charged,” meaning, that the character evidence must be relevant and ger-mane to the kind of the act charged, e.g., on a charge of rape, character for chastity; on a charge of assault, character for peacefulness or violence; on a charge for embezzlement, character for honesty and in-tegrity. Sub-paragraph (3) of Section 51 of the said Rule refers to the character of the offended party. Character evidence, whether good or bad, of the offended party may be proved “if it tends to establish in any reasonable degree the probability or improbabil-ity of the offense charged.” Such evidence is most com-monly offered to support a claim of self-defense in an

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emedial Law ReviewRSALVADOR Digestsassault or homicide case or a claim of consent in a rape case.

In homicide cases, a pertinent character trait of the victim is admissible in two situations: (1) as evi-dence of the deceased’s aggression; and (2) as evi-dence of the state of mind of the accused. The pugna-cious, quarrelsome or trouble-seeking character of the deceased or his calmness, gentleness and peaceful na-ture, as the case may be, is relevant in determining whether the deceased or the accused was the aggres-sor. When the evidence tends to prove self-defense, the known violent character of the deceased is also ad-missible to show that it produced a reasonable belief of imminent danger in the mind of the accused and a jus-tifiable conviction that a prompt defensive action was necessary.

In the instant case, proof of the bad moral character of the victim is irrelevant to determine the probability or improbability of his killing. Lee has not al-leged that the victim was the aggressor or that the killing was made in self-defense. There is no connec-tion between the deceased’s drug addiction and thiev-ery with his violent death in the hands of accused-ap-pellant. In light of the positive eyewitness testimony, the claim that because of the victim’s bad character he could have been killed by any one of those from whom he had stolen is pure and simple speculation.

Moreover, proof of the victim’s bad moral char-acter is not necessary in cases of murder committed with treachery and premeditation. In People v. Soliman, the Supreme Court held: “x x x While good or bad moral character may be availed of as an aid to deter-mine the probability or improbability of the commission of an offense (Section 15, Rule 123), such is not neces-sary in the crime of murder where the killing is commit-ted through treachery or premeditation. The proof of such character may only be allowed in homicide cases to show “that it has produced a reasonable belief of im-minent danger in the mind of the accused and a justifi-able conviction that a prompt defensive action was necessary (Moran, Comments on the Rules of Court, 1952 ed., Vol. 3, p. 126). This rule does not apply to cases of murder.”

In the case at bar, accused-appellant is charged with murder committed through treachery and evident premeditation. Following the ruling in People v. Soliman, where the killing of the victim was attended by treachery, proof of the victim’s bad character is not necessary. The presence of this aggravating circum-stance negates the necessity of proving the victim’s bad character to establish the probability or improba-bility of the offense charged and, at the same time, qualifies the killing of Joseph Marquez to murder.

X. BURDEN OF PROOF

MANONGSONG V. ESTIMO

Facts:

• Spouses Agatona Guevarra and Ciraoco Lopez had 6 children including petitioner Manongsong (and his wife) and the respondents.

• Petitioners filed a Complaint alleging that Manongsong and respondents are the owners pro indiviso of a parcel of land in Las Pinas. Invoking Art. 494 of the Civil Code, petitioners prayed for the partition and award to them of 1/5 of the land. They alleged that Agatona was the original owner and upon her death, her children inherited the land. Respondents have been in possession of the land for as long as they can remember and peti-tioners were the only descendants not occupying any portion of the property.

• Most respondents entered into a compromise agreement with petitioners. Under the Agree-ment, trhey agreed that each group of heirs would receive an equal share in the property.

• The remaining respondents did not sign the Agreement and one group (Jumaquio sisters) ac-tively opposed petitioners’ claim. They alleged that Navarro (the mother of Agatona) sold the property to their mother (Enriquita Lopez-Ju-maquio). The Jumaquio sisters presented provin-cial Tax Declaration No. 911 for the year 1949 in the sole name of Navarro. In addition, the Tax Declarations stated that the houses of Agatona and Enriquita stood on the property as improve-ments. The sisters also presented a notarized Ka-sulatan (Deed of Sale) dated October 11, 1957 in favor of Enriquita and signed by Navarro. The Clerk of Court of RTC Manila certified that the Ka-sulatan was notarized by the notary public for the City of Manila Atty. Andrada on October 11, 1957 and entered in his Notarial Register. Because they were in peaceful possession of their portion of the property for more than 30 years, they also in-voked the defense of acquisitive prescription against petitioners and charged the petitioners of laches.

• RTC ruled in favor of petitioners. It held that the Kasulata was void, even absent evidence attack-ing its validity. Thus even if there was no counter-vailing proof adduced to impugn the document’s validity, it was null and void because the property was conjugal property and no evidence was pro-duced to prove that it was solely a paraphernal property. Respondents appealed.

• CA reversed the RTC. Petitioners in their ap-pellee’s brief presented for the first time a sup-posed photocopy of Agatona’s death certificate showing that her mother was a certain Juliana Gallardo. They also attached an affidavit from Benjamin de la Cruz, Sr. stating that he only knew Navarro by name and never met her personally. On the basis of these documents, petitioners as-sailed the genuineness and authenticity of the Ka-sulatan. The CA refused to take cognizance of the death certificate and affidavit on the ground that they never formally offered the documents in evi-dence. The CA also held that they were bound by their admission that Navarro was the original of the Property. The CA further held that the RTC

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emedial Law ReviewRSALVADOR Digestserred in assuming that the property was conjugal in nature when Navarro sold it.2

Issue: Whether petitioners were able to prove, by the requisite quantum of evidence, that Manongsong is a co-owner of the Property and therefore entitled to de-mand for its partition? No.

Held: Petition denied.We review the factual and legal issues of this

case in light of the general rules of evidence and the burden of proof in civil cases, as explained by this Court in Jison v. Court of Appeals :“Simply put, he who alleges the affirmative of the issue has the burden of proof, and upon the plaintiff in a civil case, the burden of proof never parts. However, in the course of trial in a civil case, once plaintiff makes out a prima facie case in his favor, the duty or the burden of evidence shifts to defendant to controvert plain-tiff's prima facie case, otherwise, a verdict must be re-turned in favor of plaintiff. Moreover, in civil cases, the party having the burden of proof must produce a pre-ponderance of evidence thereon, with plaintiff having to rely on the strength of his own evidence and not upon the weakness of the defendant’s. The concept of ‘preponderance of evidence’ refers to evidence which is of greater weight, or more convincing, that which is offered in opposition to it; at bottom, it means probabil-ity of truth.”

Whether the Court of Appeals erred in affirming the validity of the Kasulatan sa Bilihan ng Lupa

Petitioners anchor their action for partition on the claim that Manongsong is a co-owner or co-heir of the Property by inheritance, more specifically, as the heir of her father, Vicente Lopez. Petitioners likewise al-lege that the Property originally belonged to Guevarra, and that Vicente Lopez inherited from Guevarra a 1/5 interest in the Property. As the parties claiming the af-firmative of these issues, petitioners had the burden of proof to establish their case by preponderance of evi-dence. 

To trace the ownership of the Property, both contending parties presented tax declarations and the testimonies of witnesses.  However, the Jumaquio sis-ters also presented a notarized KASULATAN SA BILI-HAN NG LUPA which controverted petitioners’ claim of co-ownership. The   Kasulatan, being a document ac - knowledged before a notary public, is a public docu-ment and   prima facie   evidence of its authenticity and due execution.     To assail the authenticity and due exe - cution of a notarized document, the evidence must be clear, convincing and more than merely preponderant. Otherwise the authenticity and due execution of the document should be upheld. The trial court itself held

2 It is a settled rule that the party who invokes the presump-tion that all property of marriage belongs to the conjugal part-nership, must first prove that the property was acquired dur-ing the marriage.  Proof of acquisition during the coveture is a condition sine qua non for the operation of the presumption in favor of conjugal ownership.In this case, not a single iota of evidence was submitted to prove that the subject property was acquired by Justina Navarro during her marriage.

that “(n)o countervailing proof was adduced by plain-tiffs to overcome or impugn the document’s legality or its validity.”[

Even if the Kasulatan was not notarized, it would be deemed an ancient document and thus still presumed to be authentic. The Kasulatan is: (1) more than 30 years old, (2) found in the proper custody, and (3) unblemished by any alteration or by any circum-stance of suspicion.  It appears, on its face, to be gen-uine.

The trial court’s conclusion that the Property was conjugal was not based on evidence, but rather on a misapprehension of Article 160 of the Civil Code. The presumption under Article 160 of the Civil Code applies only when there is proof that the property was ac-quired during the marriage.  Proof of acquisition during the marriage is an essential condition for the operation of the presumption in favor of the conjugal partnership. There was no evidence presented to establish that Navarro acquired the Property during her mar-riage.  There is no basis for applying the presumption under Article 160 of the Civil Code to the present case.  On the contrary, Tax Declaration No. 911 showed that, as far back as in 1949, the Property was declared solely in Navarro’s name. This tends to support the ar-gument that the Property was not conjugal.

Whether the Court of Appeals erred in not admit-ting the documents presented by petitioners for the first time on appeal

The CA was correct in refusing to give any pro-bative value to the alleged death certificate of Gue-varra and the affidavit of dela Cruz. Petitioners belat-edly attached these documents to their appellee’s brief.  Petitioners could easily have offered these docu-ments during the proceedings before the trial court.  In-stead, petitioners presented these documents for the first time on appeal without any explanation. For rea-sons of their own, petitioners did not formally offer in evidence these documents before the trial court as re-quired by Section 34, Rule 132 of the Rules of Court. To admit these documents now is contrary to due process, as it deprives respondents of the opportunity to exam-ine and controvert them.

Moreover, even if these documents were ad-mitted, they would not controvert Navarro’s ownership of the Property. These documents do not prove that Guevarra owned the Property or that Navarro did not own the Property.  Petitioners admitted before the trial court that Navarro was the mother of Guevarra.  How-ever, petitioners denied before the Court of Appeals that Navarro was the mother of Guevarra.  We agree with the appellate court that this constitutes an imper-missible change of theory.  When a party adopts a cer-tain theory in the court below, he cannot change his theory on appeal.  To allow him to do so is not only un-fair to the other party, it is also offensive to the basic rules of fair play, justice and due process.

Since the notarized Kasulatan  is evidence of greater weight which petitioners failed to refute by clear and convincing evidence, this Court holds that petitioners were not able to prove by preponderance of evidence that the Property belonged to Guevarra’s es-

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emedial Law ReviewRSALVADOR Digeststate.  There is therefore no legal basis for petitioners’ complaint for partition of the Property.

Y. CONCLUSIVE PRESUMPTION

DATALIFT MOVERS v. BELGRAVIA REALTY

Facts: PNR owned a lot which it leased out to Sampa-guita Borkerage, Inc. Sampaguita thereafter entered into a special arrangement with its sister company, Belgravia Realty & Development Corp. whereby Bel-gravia would put up on the lot a warehouse for its own use. Belgarvia did put up a warehouse. However, in-stead of using the said warehouse for its own use, Bel-gravia sublet it to petitioner Datalift Movers for a pe-riod of 1 year. By the terms of lease, Datalift shall pay Belgravia a monthly rental of P40,000.00 payable on or before the 15th day of each month, provided an advance rental for two (2) months is paid upon execu-tion of the contract.

After the expiration of the contract, Datalift continued to occupy the property, evidently by ac-quiesance of lessor Belgravia or by verbal understand-ing of the parties. Subsequently, Belgravia unilaterally increased the monthly rental to P60,000.00. Monthly rental was again increased fromP60,000.00 to P130,000.00. Because of the rental increase made by Belgravia, Datalift stopped paying its monthly rental for the warehouse.

Thereafter, Sampaguita addressed demand let-ters to Datalift asking the latter to pay its rental in ar-rears in the amount of P4,120,000.00 and to vacate and surrender the warehouse in dispute. Since Datalift failed to pay, Belgravia and/or Sampaguita filed a com-plaint for ejectment with MeTC against Datalift and/or its controlling stockholder, Jaime Aquino.

MeTC ruled in favor of Belgravia. It also re-jected the defendants’ challenge against Belgravia’s ti-tle over the PNR lot occupied by the subject ware-house. In their appeal, Datalift and Aquino questioned the MeTC’s finding that there was an implied new lease between PNR and Sampaquita on the lot on which the warehouse in question stands, and accordingly fault the same court for ordering them to vacate the same warehouse and to pay rentals as well as attorney’s fees and litigation expenses. RTC and CA affirmed MeTC’s ruling.

Issue: Whether Datalift can question Belgravia’s owner-ship over the property – NO.

Held: The Rules of Court already sufficiently shields re-spondent Belgravia, as lessor, from being questioned by the petitioners as lessees, regarding its title or bet-ter right of possession as lessor because having admit-ted the existence of a lessor-lessee relationship, the petitioners are barred from assailing Belgravia's title of better right of possession as their lessor.

Section 2, Rule 131, of the Rules of Court pro-vides:

SEC. 2. Conclusive presumptions. -- The following are instances of conclusive presump-tions:xxx

(b) The tenant is not permitted to deny the title of his landlord at the time of the commencement of the relation of landlord and tenant between them.

Conclusive presumptions have been defined as “inferences which the law makes so peremptory that it will not allow them to be overturned by any contrary proof however strong.” As long as the lessor-lessee re-lationship between the petitioners and Belgravia exists as in this case, the former, as lessees, cannot by any proof, however strong, overturn the conclusive pre-sumption that Belgravia has valid title to or better right of possession to the subject leased premises than they have.

Side note: The Court found that it was superfluous on the part of the MeTC to rule on the source or validity of-Belgravia's title or right of possession over the leased premises as against the petitioners as lessees in this case. If at all, Belgravia's title or right of possession should only be taken cognizance of in a proper case between PNR and Belgravia, but not in the present case (which is between Belgravia and Datalift).

Z. ADVERSE PARTY WITNESS

CHUA GAW V SUY BEN CHUA AND FELISA CHUA

Ratio: that the witness is the adverse party does not necessarily mean that the calling party will not be bound by the former’s testimony. The fact remains that it was at his instance that his adversary was put on the witness stand. Unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if he had been called by the adverse party, except by evidence of his bad character. Under the rule per-mitting the impeachment of an adverse witness, al-though the calling party does not vouch for the wit-ness’ veracity, he is nonetheless bound by his testi-mony if it is not contradicted or remains unrebutted.

FACTS: Spouses Chua Chin and Chan Chi were the founders of three business enterprises namely: Hagonoy Lumber, Capitol Sawmill Corporation, and Co-lumbia Wood Industries. The couple had 7 children: Santos chua, Suy Ben Chua, Chua Suy Phen; Chua Sioc Huan; Chua Suy Lu; and Julita Chua. When Chua Chin died, he left his wife Chan Chi and his 7 children as his only surviving heirs. At the time of his death, the net worth of Hagonoy Lumber was 415,487.20. On Decem-ber 8, 1986, his surviving heirs executed a Deed of Ex-tra-Judicial Partition and Renunciation of Hereditary rights in Favor of a Co-Heir (Deed of Partition), wherein the heirs settled their interest in Hagonoy Lumber. In the said document, Chan Chi and the six children like-wise agreed to voluntarily renounce and waive their shares over Hagonoy Lumber in favor of their co-heir Chua Sioc Huan.

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emedial Law ReviewRSALVADOR DigestsIn May 1988, petitioner Concepcion Chua Gaw

and her husband, Antonio Gaw (Spouses Gaw), asked respondent Suy Ben Chua, to lend them P 200,000 to be used for the construction of their house in Marilao, Bulacan. The parties agreed that the loan will be payable within six (6) months without interest. Suy Ben issued a check in the amount of P200,000.00 to the couple. The spouses defaulted for which, Suy Ben filed a Complaint for a Sum of Money before the RTC.

During trial, the spouses Gaw called Suy Ben to testify as adverse witness under Rule 132 Section 10. On direct examination, Suy Ben testified that Hagonoy Lumber was the conjugal property of his parents Chua Chin and Chan Chi, who were both Chinese citizens. He said that, initially, his father leased the lots where Hagonoy Lumber is presently located from his godfa-ther, Lu Pieng, and that his father constructed the two-storey concrete building standing thereon. According to Suy Bien, when he was in highschool, it was his father who managed the business but he and his other sib-lings were helping him. Later, his sister, Sioc Huan, managed Hagonoy Lumber together with their other brothers and sisters. He stated that he also managed Hagonoy when he was in high school, but he stopped when he got married and found another job. He said that he now owns the lots where Hagonoy Lumber is operating.

On cross-examination, Concepcion explained that he ceased to be a stockholder of Capitol Sawmill when he sold shares of stock to other Stockholders on Jan 1, 1991. He further testified that Sioc Huan ac-quired Hagonoy Lumber by virtue of a Deed of Parti-tion, executed by the heirs of Chua Chin. He in turn be-came the owner of Hagonoy Lumber when he bought the same from Sioc Huan through a Deed of Sale dated August 1, 1990. On re-direct examination, Concepcion stated that he sold shares of stock in Capitol Sawmill for P254,000.00, which payment he received in cash. He also paid the purchase price of 225,000.00 for Hagonoy Lumber in cash, which payment was not cov-ered by a separate receipt as he merely delivered the same to Sioc Huan at her house in Paso de Blas Valen-zuela. Although he maintains several accounts at Planters Bank, Paluwagan ng Bayan, and China Bank, the amount he paid to Sioc Huan was not taken from any of them. He kept the amount in the house because he was engaged in rediscounting checks of people from the public market.

Prior to the RTC Decision, Antonio Gaw died die to cardio vascular and respiratory failure. RTC then ruled in favor of Suy Ben stating that the latter is enti-tled to the payment of 200,000 pesos with interest. Concepcion appealed to the CA. The CA affirmed. MR filed but denied as well.

Concepcion contends in the present petition for review on certiorari that her case was unduly preju-diced by the RTC’s treatment of the Suy Ben’s testi-mony as adverse witness during cross-examination by his own counsel as part of her evidence. Concepcion argues that the adverse witess’ testimony elicted dur-ing cross-examination should not be considered as evi-dence of the calling party.

Issue: Whether or not the adverse witness’ testimony elicited during cross-examination should be considered as evidence of the calling party. – NO.

Held: A party who calls his adversary as a witness is, therefore, not bound by the latter's testimony only in the sense that he may contradict him by introducing other evidence to prove a state of facts contrary to what the witness testifies on. A rule that provides that the party calling an adverse witness shall not be bound by his testimony does not mean that such testimony may not be given its proper weight, but merely that the calling party shall not be precluded from rebutting his testimony or from impeaching him. This, petitioner Concepcion failed to do.

In the present case, the petitioner, by her own testimony, failed to discredit the respondent's testi-mony on how Hagonoy Lumber became his sole prop-erty. The petitioner admitted having signed the Deed of Partition but she insisted that the transfer of the property to Chua Siok Huan was only temporary. On cross-examination, she confessed that no other docu-ment was executed to indicate that the transfer of the business to Chua Siok Huan was a temporary arrange-ment. She declared that, after their mother died in 1993, she did not initiate any action concerning Hagonoy Lumber, and it was only in her counterclaim in the instant that, for the first time, she raised a claim over the business.

Due process requires that in reaching a deci-sion, a tribunal must consider the entire evidence pre-sented. All the parties to the case, therefore, are con-sidered bound by the favorable or unfavorable effects resulting from the evidence. As already mentioned, in arriving at a decision, the entirety of the evidence pre-sented will be considered, regardless of the party who offered them in evidence. In this light, the more vital consideration is not whether a piece of evidence was properly attributed to one party, but whether it was ac-corded the apposite probative weight by the court. The testimony of an adverse witness is evidence in the case and should be given its proper weight, and such evidence becomes weightier if the other party fails to impeach the witness or contradict his testimony.

AA. PUBLIC DOCUMENTS

SUERTE-FELIPE V PEOPLE PUBLIC DOCUMENTS (also has testimonial evidence -omitted)

FACTS: RTC found Felipe guilty of homicide after hav-ing shot to death Ariate. The prosecution’s witnesses consisted of Alumbres, William Ariate and Bgy Chair-man Arce who all saw the shooting, Edgardo Ariate who ordered his autopsy and Dr. Lagat who performed the autopsy on Ariate who sustained 3 gunshot wounds.In Felipe’s version Ariate allegedly repeatedly stabbed him which was why he had to defend himself and acci-dentally shot him. He also presented a street vendor to corroborate his story.The CA affirmed the ruling of the RTC. Felipe filed a pe-tition for review questioning the rulings on two basis: the physical evidence and the testimonial evidence.

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emedial Law ReviewRSALVADOR DigestsPhysical Evidence

1. W/N it was Ariate’s body which was autopsied by Dr. Lagat? YES

2. Assuming it was, W/N the slug recovered from the fatal wound caused his death? YES, 2nd and 3rd wounds were both fatal (he was argu-ing that he caused 2nd wound)

3. Assuming it did, W/N the slug came from Fe-lipe’s firearm? YES but the evidence was not conclusive but found that the bullet came from a .45mm and he was the only one carry-ing that weapon the circumstantial evidence presented with the other evidence was suffi-cient to prove that the slug came from him.

Whether the autopsied body was that of Godofredo Ari-ate

Felipe claims that Dr. Lagat’s testimony failed to prove that the body autopsied was that of Ariate since the request for autopsy and the Cert of Identifica-tion of Dead body was only referred to him, they didnt personally know the deceased and no relative was around to identify the body during autopsy.

CA said that the records clearly show that it was Ariate since the body was identified by God-ofredo’s son, Edgardo. Also the pictures of Godofredo’s body taken during the autopsy, likewise establish the identity of the victim. Moreover, the entries found in the assailed Autopsy Report should be deemed prima facie evidence of the facts stated therein, as there had been no proof of any intent on the part of Dr. Lagat to falsely testify on the identity of the victim ’ s body .

SC: Affirm CA’s findings. The presentation in evidence of the Certificate of Identification of Dead Body being a public record made in the performance of a duty of officers in the Medico-Legal Office of the Na-tional Bureau of Investigation, is governed by Rule 132, Sections 19 and 23 of the Rules of Court, which pro-vides:SEC. 19. Classes of documents.—For the purpose of their presentation in evidence, documents are either public or private.

Public documents are: (c) Public records, kept in the Philippines, of private documents required by law to be entered therein.x x x xSEC. 23. Public documents as evidence.—Documents consisting of entries in public records made in the per-formance of a duty by a public officer are prima fa-cie evidence of the facts therein stated. All other public documents are evidence, even against a third person, of the fact which gave rise to their execution and of the date of the latter.

So the entries in the Certificate of Identification of Dead Body are deemed prima facie evidence of the facts stated therein, i.e., that a body has been properly identified as that of Godofredo Ariate. There was no in-dication of any impropriety or irregularity committed by Dr. Lagat. His duty was to perform the autopsy and not to obsessively investigate the authenticity of the signature appearing on all requests presented to him.

So Dr. Lagat, as a medico-legal officer, enjoys the pre-sumption of regularity in the performance of his duties.

BB. FORMAL OFFER OF EVIDENCE

ATLAS CONSOLIDATED MINING AND DEV’T CORP. VS CIR.

FACTS: ATLAS filed a VAT return for the first quarter of 1993 and subsequently, applied with the BIR for the is-suance of a tax credit certificate or refund for such VAT paid.

CTA: Denied the application for tax credit or re-fund for insufficiency of evidence as ATLAS did not comply with the submission of the necessary docu-ments as mandated by RR 3-88.

CA: Denied. ATLAS’ failure to submit necessary documents in accordance to RR 3-88 is fatal to the ap-plication for tax credit or refund, for, without these doc-uments, Atlas’ VAT export sales indicated in its amended VAT return and the creditable or refundable input VAT could not be ascertained.

ISSUE: W/N ATLAS has sufficiently proven entitlement to a tax credit or refund. – NO.

RATIO: Sec. 34 of Rule 132, Revised Rules on Evidence, is clear that no evidence which has not been formally offered shall be considered. ATLAS has failed to meet the burden of proof required in order to establish the factual basis of its claim for a tax credit or refund. Where the receipts and the export documents purport-edly showing the VAT paid by Atlas were not submitted, the court could not determine the authenticity of the input VAT Atlas has paid. The most competent evi-dence must be adduced and presented to prove the al-legations in a complaint, petition, or protest before a judicial court. And where the best evidence cannot be submitted, secondary evidence may be presented. In this case, the pertinent documents which are the best pieces of evidence were not presented.

In addition, the summary presented by At-las does not replace the pertinent documents as com-petent evidence to prove the fact of refundable or creditable input VAT. These documents are the best and competent pieces of evidence required to substan-tiate Atlas’ claim for tax credit or refund.

As tax refunds are in the nature of tax exemp-tions and construed strictly against the taxpayer, it is improper to allow ATLAS to simply prevail and compel a tax credit or refund in the amount it claims without proving the amount of its claim.

DIZON V CTA

Facts: Jose P. Fernandez (Jose) died. Thereafter, a peti-tion for the probate was filed with the RTC. The pro-bate court then appointed retired SC Justice Dizon and petitioner, Atty. Rafael Arsenio P. Dizon (petitioner) as Special and Assistant Special Administrator, respec-tively, of the Estate of Jose (Estate). Justice Dizon in-formed respondent Commissioner of the Bureau of In-

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Evidence

emedial Law ReviewRSALVADOR Digeststernal Revenue (BIR) of the special proceedings for the Estate.

Justice Dizon authorized Atty. Jesus M. Gonza-les (Atty. Gonzales) to sign and file on behalf of the Es-tate the required estate tax return. Atty. Gonzales filed the estate tax return with the BIR Regional Office, showing therein a NIL (ZERO) estate tax liability.

However, the Assistant Commissioner for Col-lection of the BIR, Montalban, issued Estate Tax As-sessment Notice, demanding the payment of P66,973,985.40 as deficiency estate tax.

Atty. Gonzales moved for the reconsideration of the said estate tax assessment. However, in her let-ter, the BIR Commissioner denied the request and reit-erated that the estate is liable for the payment of P66,973,985.40 as deficiency estate tax. Dizon filed a petition for review before the CTA.

During the trial before the CTA, the BIR’s coun-sel presented one witness in the person of Alberto En-riquez, who was one of the revenue examiners who conducted the investigation on the estate tax case of the late Jose P. Fernandez. In the course of the direct examination of the witness, he identified a number of documentary evidence.

Dizon contends that the evidence should not have been admitted because there was no formal offer of evidence.

The CTA, relying on the case of Vda. de Oñate, ruled that the evidence was admissible despite lack of a formal offer stating:

Although the above-mentioned docu-ments were not formally offered as evi-dence for respondent, considering that respondent has been declared to have waived the presentation thereof during the hearing on March 20, 1996, still they could be considered as evidence for respondent since they were prop-erly identified during the presentation of respondent's witness, whose testi-mony was duly recorded as part of the records of this case. Besides, the docu-ments marked as respondent's exhibits formed part of the BIR records of the case.

Issue (Only REM issue discussed. The rest are Tax issues): Is a formal offer of evidence re-quired? -YES

Ratio: The CTA and the CA rely solely on the case of Vda. de Oñate, which reiterated this Court's previous rulings in People v. Napat-a and Peo-ple v. Mate on the admission and consideration of exhibits which were not formally offered dur-ing the trial.

In Vda. de Oñate, it was held that from the foregoing provision, it is clear that for evi-dence to be considered, the same must be for-mally offered. Corollarily, the mere fact that a particular document is identified and marked as an exhibit does not mean that it has already been offered as part of the evidence of a party.

However, in People v. Napat-a citing People v. Mate, the forgoing rule was relaxed and evi-dence not formally offered was allowed to be admitted and considered by the trial court pro-vided the following requirements were present, viz.: first, the same must have been duly iden-tified by testimony duly recorded and, second, the same must have been incorporated in the records of the case.

This exception may be applied only when there is strict compliance with the requi-sites mentioned therein; otherwise, the general rule in Section 34 of Rule 132 of the Rules of Court should prevail.

In this case, these requirements have not been satisfied. The assailed pieces of evi-dence were presented and marked during the trial particularly when Alberto took the witness stand. Alberto identified these pieces of evi-dence in his direct testimony. He was also sub-jected to cross-examination and re-cross exam-ination by petitioner. But Alberto’s account and the exchanges between Alberto and Dizon did not sufficiently describe the contents of the said pieces of evidence presented by the BIR. In fact, Dizon sought that the lead examiner, one Ma. Anabella A. Abuloc, be summoned to testify, inasmuch as Alberto was incompetent to answer questions relative to the working pa-pers. The lead examiner never testified. More-over, while Alberto's testimony identifying the BIR's evidence was duly recorded, the BIR doc-uments themselves were not incorporated in the records of the case.

Furthermore, The Court in Constantino v. Court of Appeals ruled that the formal offer of one's evidence is deemed waived after fail-ing to submit it within a considerable period of time. It explained that the court cannot admit an offer of evidence made after a lapse of three (3) months because to do so would "con-done an inexcusable laxity if not non-compli-ance with a court order which, in effect, would encourage needless delays and derail the speedy administration of justice."

In this case, the BIR failed to appear at several hearings. It also failed to file its respec-tive memorandum. In all of these proceedings, BIR was duly notified. It can be said that the BIR has waived presentation of its evidence.

CC. TENDER OF EXCLUDED EVIDENCE

CRUZ-AREVALO V. QUERUBIN-LAYOSA

Facts: Josefina Cruz-Arevalo filed an administrative complaint against Judge Querubin-Layosa (judge) for manifest bias and partiality and ignorance of the law relative to a civil case entitled Cruz-Arevalo and Con-rado Cruz v. Home Development Mutual Fund.

Conrado Cruz executed an authorization letter and SPA in her favor to represent him in the said civil case while Conrado undergoes a medical treatment in the USA. Notwithstanding the presentation of said let-

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emedial Law ReviewRSALVADOR Digestster and SPA, the judge declared Cruz non-suited due to his absence during pre-trial. The judge also excluded several paragraphs in the Affidavit which was adopted as the direct testimony of her witness without giving her counsel a chance to comment on the objections raised by Cruz-Arevalo. Moreover, she refused to issue a written order excluding certain paragraphs thus de-priving Cruz-Arevalo the opportunity to file certiorari proceedings. Cruz-Arevalo prays for the re-raffling of the case to ensure impartiality. The judge inhibited herself from trying the case.

The judge explained that the letter presented by Cruz-Arevalo is defective because it was not nota-rized and authenticated. The SPA is also defective be-cause it gave Cruz-Arevalo the authority to receive Cruz’s contribution to the PAG-IBIG fund and not to rep-resent him in the case. As regards the exclusion of sev-eral paragraphs in the Affidavit constituting as the di-rect testimony of Atty. Cecilio Y. Arevalo, Jr., the judge points out that she gave the other party the chance to go over the affidavit and make objections thereto like any direct testimonial evidence. She claims that no written order is necessary as demanded by com-plainant’s counsel because her rulings were made in open court during the course of trial and are already reflected in the transcript of the stenographic notes.

Office of the Court Administrator found the ac-cusations unmeritorious and recommended the dis-missal of the administrative case for lack of merit.

Issue: W/N Judge Querubin-Layosa should be adminis-tratively liable. - NO.

Held: While non-appearance of a party may be excused if a duly authorized representative shall appear in his behalf, however Cruz failed to validly constitute com-plainant because his authorization letter and SPA were not respectively authenticated and specific as to its purpose. Without any authorized representative, the failure of Cruz to appear at the pre-trial made him non-suited. Respondent judge thus correctly dismissed the complaint in so far as he is concerned.

As regards the exclusion of certain para-graphs in the affidavit of complainant’s witness, the rule is that evidence formally offered by a party may be admitted or excluded by the court. If a party’s of-fered documentary or object evidence is excluded, he may move or request that it be attached to form part of the record of the case. If the excluded evidence is oral, he may state for the record the name and other personal circumstances of the witness and the sub-stance of the proposed testimony. These procedures are known as offer of proof or tender of excluded evi-dence and are made for purposes of appeal. If an ad-verse judgment is eventually rendered against the of-feror, he may in his appeal assign as error the rejection of the excluded evidence. The appellate court will bet-ter understand and appreciate the assignment of error if the evidence involved is included in the record of the case.

On the other hand, the ruling on an objection must be given immediately after an objection is made, as what respondent judge did, unless the court desires

to take a reasonable time to inform itself on the ques-tion presented; but the ruling shall always be made during the trial and at such time as will give the party against whom it is made an opportunity to meet the situations presented by the ruling. Respondent judge correctly ordered the striking out of portions in Atty. Arevalo’s affidavit which are incompetent, irrelevant, or otherwise improper. Objections based on irrelevancy and immateriality need no specification or explanation. Relevancy or materiality of evidence is a matter of logic, since it is determined simply by ascertaining its logical connection to a fact in issue in the case. Finally, complainant failed to present evidence to show the alleged bias of respondent judge; mere suspicion that a judge was partial is not enough.

DD. PREPONDERANCE OF EVIDENCE

RAYMUNDO et al. (debtors) v. LUNARIA et al. (creditors/ commission agent)

FACTS: There are two agreements to remember in this case: (1) the written Exclusive Authority to Sell in favor of Lunaria et al.; and (2) a Subsequent Verbal Agree-ment.

Petitioners approached respondent Lunaria to help them find a buyer for their property. Respondent Lunaria was promised a 5% agent's commission in the event that he finds a buyer. Eventually, respondents found a buyer and a Deed of Absolute Sale was exe-cuted. Later on, Ceferino G. Raymundo, one of the co-owners, advised respondents to go to the bank to re-ceive partial payment of their total commission.

Version of respondent-creditors: Pursuant to the written Exclusive Authority to Sell, respondents (Lunaria et al.) went to the bank to claim their full com-mission. However, they were told that the check cover-ing the balance of their commission was already given by the bank manager to Lourdes R. Raymundo, the representative of the petitioners. Respondents tried to get the check from the petitioners, however, they were told that there is nothing more due them by way of commission as they have already divided and distrib-uted the balance of the commissions among their nephews and nieces.

Version of petitioner-debtors: For their part, pe-titioners counter that there was a subsequent verbal agreement entered into by the parties after the execu-tion of the written agreement, and hence there is no more balance due to respondent Lunaria. Said verbal agreement provides that the 5% agent's commission shall be divided as follows: 2/5 for the agents, 2/5 for Lourdes Raymundo, and 1/5 for the buyer, Hipolito. The share given to Lourdes Raymundo shall be in consider-ation for the help she would extend in the processing of documents of sale of the property, the payment of the capital gains tax to the Bureau of Internal Revenue and in securing an order from the court. The 1/5 com-mission given to Hipolito, on the other hand, will be used by him for the payment of realty taxes. [Note: the latter part of the case would show that the lower court rendered a decision against the petitioner-debtors herein allegedly because they failed to prove this sub-

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emedial Law ReviewRSALVADOR Digestssequent verbal agreement by means of “more than a mere preponderance of evidence”. Petitioner Raymun-dos argue that this is plainly contrary to law, which merely requires preponderance of evidence in civil cases].

Now, for failure of the respondents to receive the balance of their agent's commission, they filed an action for the collection of a sum of money.

ISSUE: Whether or not the lower court erred in requir-ing the petitioners to establish the verbal agreement modifying the earlier written agreement (the exclusive authority to sell) by more than a preponderance of evi-dence. (NO. Petitioners’ claim is without merit)

HELD: As to the second issue, petitioners contend that the appellate court erred in requiring them to prove the existence of the subsequent verbal agreement by more than a mere preponderance of evidence since no rule of evidence requires them to do so. In support of this allegation, petitioners presented petitioner Lourdes Raymundo who testified that she was given 2/5 share of the commission pursuant to the verbal sharing scheme because she took care of the payment of the capital gains tax, the preparation of the documents of sale and of securing an authority from the court to sell the property.

For their part, respondents counter that the ap-pellate court did not require petitioners to prove the existence of the subsequent oral agreement by more than a mere preponderance of evidence. What the ap-pellate court said is that the petitioners failed to prove and establish the alleged subsequent verbal agree-ment even by mere preponderance of evidence.

Petitioners' abovecited allegation has no merit. By preponderance of evidence is meant that the evi-dence as a whole adduced by one side is superior to that of the other. It refers to the weight, credit and value of the aggregate evidence on either side and is usually considered to be synonymous with the term "greater weight of evidence" or "greater weight of the credible evidence". It is evidence which is more con-vincing to the court as worthy of belief than that which is offered in opposition thereto.

Both the appellate court and trial court ruled that the evidence presented by the petitioners is not sufficient to support their allegation that a subsequent verbal agreement was entered into by the parties. In fact, both courts correctly observed that if Lourdes Raymundo was in reality offered the 2/5 share of the agent's commission for the purpose of assisting re-spondent Lunaria in the documentation requirement, then why did the petitioners not present any written court order on her authority, tax receipt or sales docu-ment to support her self-serving testimony? Moreover, even the worksheet allegedly reflecting the commis-sion sharing was unilaterally prepared by petitioner Lourdes Raymundo without any showing that respon-dents participated in the preparation thereof or gave their assent thereto. Even the alleged payment of 1/5 of the commission to the buyer to be used in the pay-ment of the realty taxes cannot be given credence since the payment of realty taxes is the obligation of the owners, and not the buyer. Lastly, if the said shar-

ing agreement was entered into pursuant to the wishes of the buyer, then he should have been presented as witness to corroborate the claim of the petitioners. However, he was not.

EE. CORPUS DELICTI

RIMORIN V. PEOPLE

(Corpus delicti in its legal sense refers to the fact of the commission of the crime, not to the physical body of the deceased or to the ashes of a burned building or -- as in the present case -- to the smuggled cigarettes. The corpus delicti may be proven by the credible testi-mony of a sole witness, not necessarily by physical evi-dence such as those aforementioned.)

FACTS:

- Col. Panfilo Lacson received information that cer-tain syndicated groups were engaged in smug-gling activities somewhere in Port Area, Manila. He fielded three surveillance stake-out teams the fol-lowing night along Roxas Boulevard and Bonifacio Drive near Del Pan Bridge, whereby they were to watch out for a cargo truck bound for Malabon. Nothing came out of it. On the basis of his investi-gation, it was discovered that the truck was regis-tered in the name of Teresita Estacio of Pasay City.

- Col. Lacson and his men returned to the same area, with Col. Lacson posting himself at the im-mediate vicinity of the 2nd COSAC Detachment in Port Area, Manila, because as per information given to him, the said cargo truck will come out from the premises of the 2nd COSAC Detachment in said place. No truck came.

- The next morning, a green cargo truck came out from the 2nd COSAC Detachment followed and es-corted closely by a light brown Toyota Corona car with 4 men on board. At that time, Lt. Col. Panfilo Lacson had no information whatsoever about the car, so he gave an order by radio to his men to in-tercept only the cargo truck. The cargo truck was intercepted. Col. Lacson noticed that the Toyota car following the cargo truck suddenly made a sharp U-turn towards the North, unlike the cargo truck which was going south. Almost by impulse, Col. Lacson’s car also made a U-turn and gave chase to the speeding Toyota car. The chase lasted for less than 5 minutes, until said car made a stop along Bonifacio Drive, at the foot of Del Pan

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emedial Law ReviewRSALVADOR DigestsBridge. Col. Lacson and his men searched the car and they found several firearms.

- When the cargo truck was searched, 305 cases of blue seal or untaxed cigarettes were found inside said truck in possession of Rimorin.

- RTC convicted petitioner of smuggling. CA af-firmed. The CA, however, found no sufficient evi-dence against the other co-accused who, unlike petitioner, were not found to be in possession of any blue seal cigarettes. Hence, this Petition.

- Petitioner argues that he cannot be convicted of smuggling under the Tariff and Customs Code, be-cause respondent failed to present the seized con-traband cigarettes in court. Equating the actual physical evidence -- the 305 cases of blue seal cigarettes -- with the corpus delicti, he urges this Court to rule that the failure to present it was fatal to respondent’s cause.

ISSUE: W/N it was necessary to present the seized goods to prove the corpus delicti. – NO.

HELD/RATIO: Corpus delicti refers to the fact of the commission of the crime charged or to the body or sub-stance of the crime. In its legal sense, it does not refer to the ransom money in the crime of kidnapping for ransom or to the body of the person murdered. Hence, to prove the corpus delicti, it is sufficient for the prose-cution to be able show that (1) a certain fact has been proven -- say, a person has died or a building has been burned; and (2) a particular person is criminally re-sponsible for the act.

Since the corpus delicti is the fact of the com-mission of the crime, the Court has ruled that even a single witness’ uncorroborated testimony, if credible, may suffice to prove it and warrant a conviction there-for. Corpus delicti may even be established by circum-stantial evidence.

Both the RTC and the CA ruled that the corpus delicti had been competently established by respon-dent’s evidence, which consisted of the testimonies of credible witnesses and the Custody Receipt issued by the Bureau of Customs for the confiscated goods.

Col. Panfilo Lacson’s testimony on the appre-hension of petitioner and on the seizure of the blue seal cigarettes was clear and straightforward.

Moreover, it is well-settled that findings of fact of lower courts are binding on this Court, absent any showing that they overlooked or misinterpreted facts or circumstances of weight and substance. This doc-trine applies particularly to this case in which the RTC ’s findings, as far as petitioner is concerned, were af-firmed by the appellate court.

FF. CIRCUMSTANTIAL EVIDENCE

PEOPLE V. QUIZON

FACTS: Conchita Pasquin was found dead in her office at Suarez Travel Services. The trial court found Johnny Quizon guilty beyond reasonable doubt for robbery with homicide with a penalty of reclusion perpetua. The testimony of the prosecution’s witnesses showed that at around 1pm to 2pm of Sept. 5, 1997, Rowena Abril, a secretary of the adjacent office, heard loud noises coming from Conchita’s office. 25 minutes after, she saw a Quizon walking hurriedly who came from Con-chita’s office. At 4:30pm, she went to see Conchita but the main door was closed and since nobody opened the door, she decided to leave.

At lunch time that day, Myla Miclat together with her live-in partner Roel Sicangco went to see Con-chita to hand over 17,000 pesos in payment for Myla’s round trip plane fare. While they were inside Conchita’s office, Johnny Quizon, whom Conchita introduced as her nephew, came in. Conchita told Myla that her nephew was a former drug addict, and that she was helping him mend his ways. Quizon was present when Myla gave the money to Conchita. Con-chita told Myla that she was going to purchase the ticket and instructed her to return later that day to pick it up. When Myla returned at 7pm, she knocked at the door but nobody answered. The following day around 5:30am, Myla returned to Conchita’s office. Again, no-body was in sight. Myla went to the agency’s neighbor to inquire if there was someone inside the office. The neighbor climbed, peeped inside and saw a body cov-ered with a blanket. The policemen forced open the door and found the body of Conchita wrapped with a white blanket. Conchita’s jewelry box and the money paid by Myla were missing.

Quizon was not found and he never showed up in the wake and did not attend the burial.

The trial court held that based on circumstan-tial evidence, Quizon is guilty beyond reasonable doubt. The circumstances clearly made an unbroken chain which leads to one fair and reasonable conclu-sion which points to the accused, to the exclusion of all others, as the perpetrator of the crime.The accused appealed. The OSG averred that the exis-tence of every bit of circumstantial evidence was not satisfactorily established.

ISSUE: Whether or not the circumstantial evidence found by the trial court could produce a conviction be-yond reasonable doubt – NO!

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emedial Law ReviewRSALVADOR DigestsRATIO: Section 4, Rule 133 of the Revised Rules on Criminal Procedure provides that for circumstantial evi-dence to be sufficient for conviction, it must be shown that (a) that there is more than one circumstance and the facts from which the inferences are derived have been firmly established and (b) that the combination of all the circumstances is such as to produce a convic-tion beyond reasonable doubt.

The foregoing elements must all be obtaining in order to aptly warrant the conviction of an accused. The circumstances proved must be congruous with each other, consistent with the hypothesis that the ac-cused is guilty and inconsistent with any other hypoth-esis except that of guilt.

A judgment of conviction based on circumstan-tial evidence can be upheld only if the circumstances proved constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the ac-cused, to the exclusion of all others, as the guilty per-son.

In this case, the circumstances recited by the trial court would be insufficient to create in the mind of the Court a moral certainty that appellant was the one responsible for the commission of the crime. Quizon’s mere presence at the locus criminis would be inade-quate to implicate him in the commission of the crime. No evidence was adduced that Quizon was the last per-son to see or talk to the victim before she was killed. Furthermore, even while the trial court had ob-served that Conchita’s jewelry and money were never found, no evidence was introduced that Quizon had them, or that he had them in his possession at anytime after Conchita’s death. The fact that Quizon did not at-tend Conchita’s wake is not an indication of either flight or guilt. He was warned against going to the wake after he earned the ire of their relatives who had suspected him to be the killer. Significantly, no ill-motive was as-cribed on Quizon to either kill or rob his own aunt.

The circumstances recited by the trial court might be enough to create some kind of suspicion on the part of the trial court of appellant’s involvement, but suspicion is not enough to warrant conviction. A finding of guilt based on conjecture, even if likely, can-not satisfy the need for evidence required for a pro-nouncement of guilt, i.e., proof beyond reasonable doubt of the complicity in the crime. No matter how weak the defense is, it is still imperative for the prose-cution to prove the guilt of the accused beyond reason-able doubt. An accused has the right to be presumed innocent, and this presumption prevails until and un-less it is overturned by competent and credible evi-dence proving his guilt beyond reasonable doubt. In case of any reservation against the guilt of accused, the Court should entertain no other alternative but to acquit him.

Therefore, Quizon is acquitted.

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