1 epublic of the Philippines SUPREME COURT Manila EN BANC G.R. No.

L-47442 April 8, 1941

In the matter of the estate of George M. Icard, deceased, JOSEPH K. ICARD, plaintiffappellee, vs. CLARO MASIGAN, as special administrator of the estate of George M. Icard; and EFFIE CARLAND ICARD, defendants-appellants. Harvey and O'Brien for appellants. Quijano and Liwag for appellee. MORAN, J.: For services rendered in connection with the development and location of certain mining claims, Joseph K. Icard filed a claim of P2,000 against the estate of his deceased father George M. Icard. The claim having been allowed by the commissioner on claims, the administrator appealed to the Court of First Instance, where it was likewise allowed. The administrator's appeal to this Court rests mainly on the theory that the probate court erred in allowing the claimant to testify to the services rendered by him in favor of his father, because the action being one against the administrator of a deceased person, plaintiff cannot be allowed to testify as to any matter of fact which occurred before the death of such deceased person, under section 383, paragraph 7, of Act No. 190, now Rule 123, section 26, paragraph (c), of the Rules of Court. It is undisputed that the Antamok Central Group of mining claims, situated in the subprovince of Benguet, were originally owned in common by Fred M. Harden, the deceased George M. Icard, and plaintiff-appellee Joseph K. Icard. These mining claims were later sold to the Big Wedge Mining Company, the deed of sale having been executed jointly by the common owners, Fred M. Harden, George M. Icard, and Joseph K. Icard, the latter represented by his attorney-infact, George M. Icard. A dispute having arisen as to the price still due under the contract of sale, the Big Wedge Mining Company filed in the Court of First Instance of Manila an action for rescission (Civil Case No. 48186) against the vendors, Fred M. Harden, George M. Icard, and Joseph K. Icard, the latter in his personal capacity and as executor of the deceased George M. Icard. The case was, however, settled between the parties, and a compromise agreement was duly approved by the court. Pursuant to the compromise, an order was issued decreeing that the sum of P39,478.16 be paid to Joseph K. Icard in full settlement of his personal interest and that of said George M. Icard in the Antamok Central Group of mining claims. The order directed that said amount be divided between Joseph K. Icard and the estate of the deceased George M. Icard in the manner and proportion to be determined by the probate court. It is thus clear that Joseph K. Icard had an interest in the mining claims aforementioned, as evidenced by the deed of sale executed in favor of the Big Wedge Mining Company and the

2 compromise agreement approved by the court in civil case No. 48186 of the Court of First Instance of Manila. The amount of this interest being undetermined, Joseph K. Icard may, if he wishes to, properly claim one-half of P39,478.16, under the legal provision that "the interests of the coowners shall be presumed to be equal until the contrary is proved." (Art. 393, C.C.). Instead, he claims P2,000 only, and it is this reduced claim which he seeks to establish by his oral testimony. Section 383, par. 7, of the Code of Civil Procedure, which is now Rule 123, section 26, paragraph (c), of the Rules of Court, is designed to close the lips of the party plaintiff when death has closed the lips of the party defendant, in order to remove from the surviving party the temptation to falsehood and the possibility of fictitious claims against the deceased. Where, as in the instant case, the purpose of the oral testimony is to prove a lesser claim than what might be warranted by clear written evidence, to avoid prejudice to the estate of the deceased, the law has certainly no reason for its application. Ratione cessante, cessat ipsa lex. Judgment is affirmed, with costs against appellants. Imperial, Diaz, Laurel, and Horrilleno, JJ., concur. Avancea, C.J., took no part. Republic of the Philippines SUPREME COURT Manila

SECOND DIVISION

EDSA SHANGRI-LA HOTEL AND RESORT, INC., RUFO B. COLAYCO, RUFINO L. SAMANIEGO, KUOK KHOON CHEN, and KUOK KHOON TSEN, Petitioners,

G.R. No. 145842

Present:

CARPIO MORALES, J.,

3 - versus Acting Chairperson, TINGA, VELASCO, JR., BF CORPORATION, Respondent. REYES, and BRION, JJ.

x ------------------------------------------- x

CYNTHIA ROXAS-DEL CASTILLO, Petitioner,

G.R. No. 145873

- versus -

Promulgated: BF CORPORATION, Respondent. June 27, 2008

x-----------------------------------------------------------------------------------------x

DECISION

VELASCO, JR., J.:

Before us are these two (2) consolidated petitions for review under Rule 45 to nullify certain issuances of the Court of Appeals (CA).

In the first petition, docketed as G.R. No. 145842, petitioners Edsa Shangri-la Hotel and Resort, Inc. (ESHRI), Rufo B. Colayco, Rufino L. Samaniego, Kuok Khoon Chen, and Kuok Khoon Tsen assail the Decision1[1] dated November 12, 1999 of the CA in CA-G.R. CV No. 57399, affirming the Decision2[2] dated September 23, 1996 of the Regional Trial Court (RTC), Branch 162 in Pasig City in Civil Case No. 63435 that ordered them to pay jointly and severally respondent BF Corporation (BF) a sum of money with interests and damages. They also assail the CA Resolution dated October 25, 2000 which, apart from setting aside an earlier Resolution3[3] of August 13, 1999 granting ESHRIs application for restitution and damages against bond, affirmed the aforesaid September 23, 1996 RTC Decision.

In the second petition, docketed as G.R. No. 145873, petitioner Cynthia Roxas-del Castillo also assails the aforementioned CA Decision of November 12, 1999 insofar at it adjudged her jointly and severally liable with ESHRI, et al. to pay the monetary award decreed in the RTC Decision.

Both petitions stemmed from a construction contract denominated as Agreement for the Execution of Builders Work for the EDSA Shangri-la Hotel Project4[4] that ESHRI and BF executed for the construction of the EDSA Shangri-la Hotel starting May 1, 1991. Among other things, the contract stipulated for the payment of the contract price on the basis of the work accomplished as described in the monthly progress billings. Under this arrangement, BF shall submit a monthly progress billing to ESHRI which would then re-measure the work accomplished and prepare a Progress Payment Certificate for that months progress billing.5[5]

In a memorandum-letter dated August 16, 1991 to BF, ESHRI laid out the collection procedure BF was to follow, to wit: (1) submission of the progress billing to ESHRIs Engineering Department; (2) following-up of the preparation of the Progress Payment Certificate with the Head of the Quantity Surveying Department; and (3) following-up of the release of the payment with one Evelyn San Pascual. BF adhered to the procedures agreed upon in all its billings for the period from May 1, 1991 to June 30, 1992, submitting for the purpose the required Builders Work Summary, the monthly progress billings, including an evaluation of the work in accordance with the Project Managers Instructions (PMIs) and the detailed valuations contained in the Work Variation Orders (WVOs) for final re-measurement under the PMIs. BF said that the values of the WVOs were contained in the progress billings under the section Change Orders.6[6]

From May 1, 1991 to June 30, 1992, BF submitted a total of 19 progress billings following the procedure agreed upon. Based on Progress Billing Nos. 1 to 13, ESHRI paid BF PhP 86,501,834.05.7[7]

According to BF, however, ESHRI, for Progress Billing Nos. 14 to 19, did not re-measure the work done, did not prepare the Progress Payment Certificates, let alone remit payment for the inclusive periods covered. In this regard, BF claimed having been misled into working continuously on the project by ESHRI which gave the assurance about the Progress Payment Certificates already being processed.

After several futile attempts to collect the unpaid billings, BF filed, on July 26, 1993, before the RTC a suit for a sum of money and damages.

In its defense, ESHRI claimed having overpaid BF for Progress Billing Nos. 1 to 13 and, by way of counterclaim with damages, asked that BF be ordered to refund the excess payments. ESHRI also charged BF with incurring delay and turning up with inferior work accomplishment.

The RTC found for BF

7 On September 23, 1996, the RTC, on the main finding that BF, as plaintiff a quo, is entitled to the payment of its claim covered by Progress Billing Nos. 14 to 19 and to the retention money corresponding to Progress Billing Nos. 1 to 11, with interest in both instances, rendered judgment for BF. The fallo of the RTC Decision reads:

WHEREFORE, defendants [EHSRI], Ru[f]o B. Colayco, Rufino L. Samaniego, Cynthia del Castillo, Kuok Khoon Chen, and Kuok Khoon Tsen, are jointly and severally hereby ordered to: 1. Pay plaintiff the sum of P24,780,490.00 representing unpaid construction work accomplishments under plaintiffs Progress Billings Nos. 14-19; Return to plaintiff the retention sum of P5,810,000.00; Pay legal interest on the amount of P24,780,490.80 representing the construction work accomplishments under Progress Billings Nos. 14-19 and on the amount of P5,810,000.00 representing the retention sum from date of demand until their full Payment; Pay plaintiff P1,000,000.00 as moral damages, P1,000,000.00 as exemplary damages, P1,000,000.00 as attorneys fees, and cost of the suit.8[8]

2. 3.

4.

According to the RTC, ESHRIs refusal to pay BFs valid claims constituted evident bad faith entitling BF to moral damages and attorneys fees.

ESHRI subsequently moved for reconsideration, but the motion was denied by the RTC, prompting ESHRI to appeal to the CA in CA-G.R. CV No. 57399.

Pending the resolution of CA-G.R. CV No. 57399, the following events and/or incidents transpired: (1) The trial court, by Order dated January 21, 1997, granted BFs motion for execution pending appeal. ESHRI assailed this order before the CA via a petition for certiorari, docketed as CA-G.R. SP No. 43187.9[9] Meanwhile, the branch sheriff garnished from ESHRIs bank account in the Philippine National Bank (PNB) the amount of PhP 35 million.

(2) On March 7, 1997, the CA issued in CA-G.R. SP No. 43187 a writ of preliminary injunction enjoining the trial court from carrying out its January 21, 1997 Order upon ESHRIs posting of a PhP 1 million bond. In a supplemental resolution issued on the same day, the CA issued a writ of preliminary mandatory injunction directing the trial court judge and/or his branch sheriff acting under him (a) to lift all the garnishments and levy made under the enjoined order of execution pending appeal; (b) to immediately return the garnished deposits to PNB instead of delivering the same to ESHRI; and (c) if the garnished deposits have been delivered to BF, the latter shall return the same to ESHRIs deposit account.

(3) By a Decision dated June 30, 1997 in CA-G.R. SP No. 43187, the CA set aside the trial courts January 21, 1997 Order. The CA would later deny BFs motion for reconsideration.

(4) Aggrieved, BF filed before this Court a petition for review of the CA Decision, docketed as G.R. No. 132655.10[10] On August 11, 1998, the Court affirmed the assailed

9 decision of the CA with the modification that the recovery of ESHRIs garnished deposits shall be against BFs bond.11[11]

We denied the motions for reconsideration of ESHRI and BF.

(5) Forthwith, ESHRI filed, and the CA by Resolution of August 13, 1999 granted, an application for restitution or damages against BFs bond. Consequently, BF and Stronghold Insurance Co., Inc., the bonding company, filed separate motions for reconsideration.

On November 12, 1999, in CA-G.R. CV No. 57399, the CA rendered a Decision resolving (1) the aforesaid motions of BF and its surety and (2) herein petitioners appeal from the trial courts Decision dated September 23, 1996. This November 12, 1999 Decision, finding for BF and now assailed in these separate recourses, dispositively reads:

WHEREFORE, premises considered, the decision appealed from is AFFIRMED in toto. This Courts Resolution dated 13 August 1999 is reconsidered and set aside, and defendants-appellants application for restitution is denied for lack of merit. SO ORDERED.12[12]

10

The CA predicated its ruling on the interplay of two main reasons. First, the issues the parties raised in their respective briefs were, for the most part, factual and evidentiary. Thus, there is no reason to disturb the case disposition of the RTC, inclusive of its award of damages and attorneys fees and the reasons underpinning the award. Second, BF had sufficiently established its case by preponderance of evidence. Part of what it had sufficiently proven relates to ESHRI being remiss in its obligation to re-measure BFs later work accomplishments and pay the same. On the other hand, ESHRI had failed to prove the basis of its disclaimer from liability, such as its allegation on the defective work accomplished by BF.

Apropos ESHRIs entitlement to the remedy of restitution or reparation arising from the execution of the RTC Decision pending appeal, the CA held that such remedy may peremptorily be allowed only if the executed judgment is reversed, a situation not obtaining in this case.

Following the denial by the CA, per its Resolution13[13] dated October 25, 2000, of their motion for reconsideration, petitioners are now before the Court, petitioner del Castillo opting, however, to file a separate recourse.

G.R. No. 145842

11 In G.R. No. 145842, petitioners ESHRI, et al. raise the following issues for our consideration:

I. Whether or not the [CA] committed grave abuse of discretion in disregarding issues of law raised by petitioners in their appeal [particularly in admitting in evidence photocopies of Progress Billing Nos. 14 to 19, PMIs and WVOs]. II. Whether or not the [CA] committed grave abuse of discretion in not holding respondent guilty of delay in the performance of its obligations and, hence, liable for liquidated damages [in view that respondent is guilty of delay and that its works were defective]. III. Whether or not the [CA] committed grave abuse of discretion in finding petitioners guilty of malice and evidence bad faith, and in awarding moral and exemplary damages and attorneys fees to respondent. IV. Whether or not the [CA] erred in setting aside its Resolution dated August 13, 2000.14[14]

The petition has no merit.

Prefatorily, it should be stressed that the second and third issues tendered relate to the correctness of the CAs factual determinations, specifically on whether or not BF was i n delay and had come up with defective works, and whether or not petitioners were guilty of malice and bad faith. It is basic that in an appeal by certiorari under Rule 45, only questions of law may be presented by the parties and reviewed by the Court.15[15] Just as basic is the rule that factual findings of the CA, affirmatory of that of the trial court, are final and conclusive on the

12 Court and may not be reviewed on appeal, except for the most compelling of reasons, such as when: (1) the conclusion is grounded on speculations, surmises, or conjectures; (2) the inference is manifestly mistaken, absurd, or impossible; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) such findings are contrary to the admissions of both parties; and (7) the CA manifestly overlooked certain relevant evidence and undisputed facts, that, if properly considered, would justify a different conclusion.16[16]

In our review of this case, we find that none of the above exceptions obtains. Accordingly, the factual findings of the trial court, as affirmed by the CA, that there was delay on the part of ESHRI, that there was no proof that BFs work was defective, and that petitioners were guilty of malice and bad faith, ought to be affirmed.

Admissibility of Photocopies of Progress Billing Nos. 14 to 19, PMIs and WVOs

Petitioners fault the CA, and necessarily the trial court, on the matter of the admission in evidence of the photocopies of Progress Billing Nos. 14 to 19 and the complementing PMIs and the WVOs. According to petitioners, BF, before being allowed to adduce in evidence the photocopies adverted to, ought to have laid the basis for the presentation of the photocopies as secondary evidence, conformably to the best evidence rule. Respondent BF, on the other hand, avers having complied with the laying-the-basis requirement. Defending the action of the courts below in admitting into evidence the photocopies of the documents aforementioned, BF explained that it could not present the

13 original of the documents since they were in the possession of ESHRI which refused to hand them over to BF despite requests.

We agree with BF. The only actual rule that the term best evidence denotes is the rule requiring that the original of a writing must, as a general proposition, be produced17[17] 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 itself, except in the following cases: (a) When the original has been lost or destroyed, or cannot be produced in court, without bad faith on the part of the offeror;

(b) When the original is in the custody or under the control of the party against whom the evidence is offered, and the latter fails to produce it after reasonable notice; (Emphasis added.)

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

SEC. 6. When original document is in adverse partys custody or control. If the document is in the custody or under control of the adverse party, he must have reasonable notice to produce it. If after such notice and after satisfactory proof of its existence, he fails to produce the document, secondary evidence may be presented as in the case of loss.

14

Secondary evidence of the contents of a written instrument or document refers to evidence other than the original instrument or document itself.18[18] A party may present secondary evidence of the contents of a writing not only when the original is lost or destroyed, but also when it is in the custody or under the control of the adverse party. In either instance, however, certain explanations must be given before a party can resort to secondary evidence.

In our view, the trial court correctly allowed the presentation of the photocopied documents in question as secondary evidence. Any suggestion that BF failed to lay the required basis for presenting the photocopies of Progress Billing Nos. 14 to 19 instead of their originals has to be dismissed. The stenographic notes of the following exchanges between Atty. Andres and Atty. Autea, counsel for BF and ESHRI, respectively, reveal that BF had complied with the requirements:

ATTY. ANDRES: During the previous hearing of this case, your Honor, likewise, the witness testified that certain exhibits namely, the Progress Payment Certificates and the Progress Billings the originals of these documents were transmitted to ESHRI, all the originals are in the possession of ESHRI since these are internal documents and I am referring specifically to the Progress Payment Certificates. We requested your Honor, that in order that plaintiff [BF] be allowed to present secondary original, that opposing counsel first be given opportunity to present the originals which are in their possession. May we know if they have brought the originals and whether they will present the originals in court, Your Honor. (Emphasis added.) ATTY. AUTEA: We have already informed our client about the situation, your Honor, that it has been claimed by plaintiff that some of the originals are in their

15 possession and our client assured that, they will try to check. Unfortunately, we have not heard from our client, Your Honor.

Four factual premises are readily deducible from the above exchanges, to wit: (1) the existence of the original documents which ESHRI had possession of; (2) a request 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 documents execution or existence; (2) there is proof of the cause of the original documents unavailability; and (3) the offeror is in good faith.19[19] While perhaps not on all fours because it involved a check, what the Court said in Magdayao v. People, is very much apt, thus:

x x x To warrant the admissibility of secondary evidence when the original of a writing is in the custody or control of the adverse party, Section 6 of Rule 130 provides that the adverse party must be given reasonable notice, that he fails or refuses to produce the same in court and that the offeror offers satisfactory proof of its existence. xxxx The mere fact that the original of the writing is in the custody or control of the party against whom it is offered does not warrant the admission of secondary evidence. The offeror must prove that he has done all in his power to secure the best evidence by giving notice to the said party to produce the document. The notice may be in the form of a motion for the production of the original or made in open court in the presence of the adverse party or via a

16 subpoena duces tecum, provided that the party in custody of the original has sufficient time to produce the same. When such party has the original of the writing and does not voluntarily offer to produce it or refuses to produce it, secondary evidence may be admitted.20[20] (Emphasis supplied.)

On the Restitution of the Garnished Funds

We now come to the propriety of the restitution of the garnished funds. As petitioners maintain, the CA effectively, but erroneously, prevented restitution of ESHRIs improperly garnished funds when it nullified its own August 13, 1999 Resolution in CA-G.R. SP No. 43187. In this regard, petitioners invite attention to the fact that the restitution of the funds was in accordance with this Courts final and already executory decision in G.R. No. 132655, implying that ESHRI should be restored to its own funds without awaiting the final outcome of the main case. For ease of reference, we reproduce what the appellate court pertinently wrote in its Resolution of August 13, 1999:

BASED ON THE FOREGOING, the Application (for Restitution/Damages against Bond for Execution Pending Appeal) dated May 12, 1999 filed by [ESHRI] is GRANTED. Accordingly, the surety of [BF], STRONGHOLD Insurance Co., Inc., is ORDERED to PAY the sum of [PhP 35 million] to [ESHRI] under its SICI Bond. x x x In the event that the bond shall turn out to be insufficient or the surety (STRONGHOLD) cannot be made liable under its bond, [BF], being jointly and severally liable under the bond is ORDERED to RETURN the amount of [PhP 35 million] representing the garnished deposits of the bank account maintained by [ESHRI] with the [PNB] Shangri-la Plaza Branch, Mandaluyong City. Otherwise, this Court shall cause the implementation of the Writ of Execution dated April 24, 1998 issued in Civil

17 Case No. 63435 against both [BF], and/or its surety, STRONGHOLD, in case they should fail to comply with these directives.

SO ORDERED.21[21]

Petitioners contention on the restitution angle has no merit, for, as may be recalled, the CA, simultaneously with the nullification and setting aside of its August 13, 1999 Resolution, affirmed, via its assailed November 12, 1999 Decision, the RTC Decision of September 23, 1996, the execution pending appeal of which spawned another dispute between the parties. And as may be recalled further, the appellate court nullified its August 13, 1999 Resolution on the basis of Sec. 5, Rule 39, which provides: Sec. 5. Effect of reversal of executed judgment. Where the executed judgment is reversed totally or partially, or annulled, on appeal or otherwise, the trial court may, on motion, issue such orders of restitution or reparation of damages as equity and justice may warrant under the circumstances.

On the strength of the aforequoted provision, the appellate court correctly dismissed ESHRIs claim for restitution of its garnished deposits, the executed appealed RTC Decision in Civil Case No. 63435 having in fact been upheld in toto.

It is true that the Courts Decision of August 11, 1998 in G.R. No. 132655 recognized the validity of the issuance of the desired restitution order. It bears to emphasize, however, that the CA had since then decided CA-G.R. CV No. 57399, the main case, on the merits when it affirmed the underlying RTC Decision in Civil Case No. 63435. This CA Decision on the original and main case effectively rendered our decision on the incidental procedural matter on

18 restitution moot and academic. Allowing restitution at this point would not serve any purpose, but only prolong an already protracted litigation.

G.R. No. 145873

Petitioner Roxas-del Castillo, in her separate petition, excepts from the CA Decision affirming, in its entirety, the RTC Decision holding her, with the other individual petitioners in G.R. No. 145842, who were members of the Board of Directors of ESHRI, jointly and severally liable with ESHRI for the judgment award. She presently contends:

I.

THE [CA] ERRED IN NOT DECLARING THAT THE DECISION OF THE TRIAL COURT ADJUDGING PETITIONER PERSONALLY LIABLE TO RESPONDENT VOID FOR NOT STATING THE FACTUAL AND LEGAL BASIS FOR SUCH AWARD. THE [CA] ERRED IN NOT RULING THAT AS FORMER DIRECTOR, PETITIONER CANNOT BE HELD PERSONALLY LIABLE FOR ANY ALLEGED BREACH OF A CONTRACT ENTERED INTO BY THE CORPORATION.

II.

III.

THE [CA] ERRED IN NOT RULING THAT RESPONDENT IS NOT ENTITLED TO AN AWARD OF MORAL DAMAGES. THE [CA] ERRED IN HOLDING PETITIONER PERSONALLY LIABLE TO RESPONDENT FOR EXEMPLARY DAMAGES.

IV.

V.

THE [CA] ERRED IN NOT RULING THAT RESPONDENT IS NOT ENTITLED TO ANY AWARD OF ATTORNEYS FEES.22[22]

19

First off, Roxas-del Castillo submits that the RTC decision in question violated the requirements of due process and of Sec. 14, Article VII of the Constitution that states, No decision shall be rendered by any court without expressing therein clearly and distinctly the facts and the law on which it is based.

Roxas-del Castillos threshold posture is correct. Indeed, the RTC decision in question, as couched, does not provide the factual or legal basis for holding her personally liable under the premises. In fact, only in the dispositive portion of the decision did her solidary liability crop up. And save for her inclusion as party defendant in the underlying complaint, no reference is made in other pleadings thus filed as to her liability.

The Court notes that the appellate court, by its affirmatory ruling, effectively recognized the applicability of the doctrine on piercing the veil of the separate corporate identity. Under the circumstances of this case, we cannot allow such application. A corporation, upon coming to existence, is invested by law with a personality separate and distinct from those of the persons composing it. Ownership by a single or a small group of stockholders of nearly all of the capital stock of the corporation is not, without more, sufficient to disregard the fiction of separate corporate personality.23[23] Thus, obligations incurred by corporate officers, acting as corporate agents, are not theirs but direct accountabilities of the corporation they represent. Solidary liability on the part of corporate officers may at times attach, but only under exceptional circumstances, such as when they act with malice or in bad faith.24[24] Also, in appropriate

20 cases, the veil of corporate fiction shall be disregarded when the separate juridical personality of a corporation is abused or used to commit fraud and perpetrate a social injustice, or used as a vehicle to evade obligations.25[25] In this case, no act of malice or like dishonest purpose is ascribed on petitioner Roxas-del Castillo as to warrant the lifting of the corporate veil.

The above conclusion would still hold even if petitioner Roxas-del Castillo, at the time ESHRI defaulted in paying BFs monthly progress bill, was still a director, for, before she could be held personally liable as corporate director, it must be shown that she acted in a manner and under the circumstances contemplated in Sec. 31 of the Corporation Code, which reads:

Section 31. Directors or trustees who willfully or knowingly vote for or assent to patently unlawful acts of the corporation or acquire any pecuniary interest in conflict with their duty as such directors or trustees shall be liable jointly and severally for all damages resulting therefrom suffered by the corporation, its stockholders or members and other persons. (Emphasis ours.)

We do not find anything in the testimony of one Crispin Balingit to indicate that Roxasdel Castillo made any misrepresentation respecting the payment of the bills in question. Balingit, in fact, testified that the submitted but unpaid billings were still being evaluated. Further, in the said testimony, in no instance was bad faith imputed on Roxas-del Castillo.

Not lost on the Court are some material dates. As it were, the controversy between the principal parties started in July 1992 when Roxas-del Castillo no longer sat in the ESHRI Board, a reality BF does not appear to dispute. In fine, she no longer had any participation in ESHRIs

21 corporate affairs when what basically is the ESHRI-BF dispute erupted. Familiar and fundamental is the rule that contracts are binding only among parties to an agreement. Art. 1311 of the Civil Code is clear on this point:

Article 1311. Contracts take effect only between the parties, their assigns and heirs, except in cases where the rights and obligations are not transmissible by their nature, or by stipulation or by provision of law.

In the instant case, Roxas-del Castillo could not plausibly be held liable for breaches of contract committed by ESHRI nor for the alleged wrongdoings of its governing board or corporate officers occurring after she severed official ties with the hotel management.

Given the foregoing perspective, the other issues raised by Roxas-del Castillo as to her liability for moral and exemplary damages and attorneys fees are now moot and academic.

And her other arguments insofar they indirectly impact on the liability of ESHRI need not detain us any longer for we have sufficiently passed upon those concerns in our review of G.R. No. 145842.

22

WHEREFORE, the petition in G.R. No. 145842 is DISMISSED, while the petition in G.R. No. 145873 is GRANTED. Accordingly, the appealed Decision dated November 12, 1999 of the CA in CA-G.R. CV No. 57399 is AFFIRMED with MODIFICATION that the petitioner in G.R. No. 145873, Cynthia Roxas-del Castillo, is absolved from any liability decreed in the RTC Decision dated September 23, 1996 in Civil Case No. 63435, as affirmed by the CA.

SECOND DIVISION

GREGORIO SILOT, JR., Petitioner,

G.R. No. 159240

Present:

QUISUMBING, J., Chairperson, - versus CARPIO, CARPIO MORALES, TINGA, and VELASCO, JR., JJ. Promulgated: February 4, 2008

ESTRELLA DE LA ROSA, Respondent.

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION

23 QUISUMBING, J.:

This is a petition for review of the Decision26[1] dated July 9, 2003 of the Court of Appeals in CA-G.R. CV No. 68062 entitled Estrella de la Rosa v. Gregorio Silot, Jr. The appellate court had affirmed with modification the Joint Decision27[2] dated May 24, 2000 of the Regional Trial Court (RTC), Branch 61, Naga City, in Civil Case Nos. 97-3736 and 97-3750, and decreed as follows: WHEREFORE, premises considered, the assailed Joint Decision dated May 24, 2000 of the RTC, Branch 61, Naga City in Civil Cases Nos. 97-3736 and 97-3750 is hereby AFFIRMED WITH MODIFICATION, deleting the award for nominal damages and reducing the award of attorneys fees to Twenty Thousand (P20,000.00) Pesos. Other awards not otherwise modified or deleted stand.

SO ORDERED.28[3] As culled from the records by the Court of Appeals, the antecedent facts of this case are as follows: On January 19, 1996, petitioner Gregorio Silot, Jr. and respondent Estrella de la Rosa entered into a contract for the construction of a dormitory-apartment building on Lot 1-A-9-D, Bagumbayan Sur, Naga City. They expressly agreed that Silot shall supply the labor and de la Rosa shall pay 33% of the total value of the materials purchased for the project. Upon turnover

24 in February 1997 of the completed structure, the total cost of materials actually purchased was P2,504,469.65, 33% of which is P826,474.98. Silot required de la Rosa to pay a total of

P1,018,000.00, or P191,525.02 more than the amount due. Through her son-in-law, de la Rosa confronted Silot about the overpayment but the latter refused to return the overpayment. After her repeated demands fell on deaf ears, de la Rosa filed a suit against Silot. Silot, in retaliation, sued de la Rosa for insufficient payment, claiming that he was supposed to receive P1,281,872.4029[4] but was only paid P1,008,000.00, thus still leaving a balance of P273,872.40. The two cases were consolidated by the trial court. During trial, however, Atty. San Jose, counsel for Silot, dispensed with the testimony of Ariel Goingo, a witness for de la Rosa. Atty. San Jose admitted Goingos proposed testimony to the effect that in consideration of the 33% as mentioned in the contract, all the material supplies during the making of the additional works mentioned were already accounted for; that Silot was paid for all works that were performed as well as all materials supplied; that the total sum was P2,504,469.65, so that 33% of which is only P826,474.98; that de la Rosa paid the amount of P1,018,000.00; hence, there was an excess payment of P191,525.02; and that de la Rosa never received any demand from nor was she confronted by Silot regarding an alleged balance.30[5] Consequently, after trial, the RTC ruled in favor of de la Rosa and ordered Silot to return the overpaid amount, decreeing as follows: WHEREFORE, premises considered, Civil Case No. 3736 is hereby ordered DISMISSED for lack of merit; while in Civil Case No. 97-3750, defendant Gregorio Silot is hereby ordered to return the amount of P191,525.02 to the

25 plaintiff, Estrella de la Rosa; to pay P100,000.00 for [a]ttorneys fees and P50,000.00 as nominal damages. SO ORDERED.31[6] On appeal, the Court of Appeals affirmed the decision of the lower court. Hence, the instant petition wherein Silot assigned the following errors: I. THE HONORABLE COURT OF APPEALS ERRED IN CONSTRUING THE ADMISSION MA[D]E BY ATTY. SAN JOSE ON THE PURPOSE FOR THE TESTIMONY OF WITNESS ARIEL [GOINGO] AS ADMISSION OF EVIDENCE.

II. THE HONORABLE COURT OF APPEALS ERRED IN DECIDING AND ORDERING PETITIONER-APPELLANT TO RETURN THE AMOUNT OF P191,525.02 TO RESPONDENT APPELLEE AND ALSO TO PAY P20,000.00 ATTORNEY[]S FEES.32[7] Simply stated, petitioner is raising the following issues to be resolved: (1) whether the admission by Atty. San Jose, counsel of petitioner Silot, constituted judicial admission of respondents evidence; and (2) whether the appellate court erred in ruling that Silot should return the claimed amount of P191,525.02 to de la Rosa. Petitioner Silot contends that his counsel Atty. San Jose merely admitted that the subject of Goingos testimony was that stated in the offer of testimony, but he did not admit the truth or veracity of the testimony. Silot adds that Atty. San Jose could not and should not have admitted

26 the testimony because he had no special power of attorney to enter into such stipulations or to compromise his clients right without the latters direct intervention.33[8] Respondent de la Rosa counters that clients are bound by the admissions as well as the negligence of their counsel. She enumerates several Court decisions to support her contention, among them the following cases: (1) Ongson v. People,34[9] where petitioner was held bound by his unqualified admission that he received private complainants demand letter with notice of dishonor. The admission binds him considering that he never denied receipt of the notice of dishonor. (2) Republic v. Sarabia,35[10] where the Court held that an admission made in the

pleading cannot be controverted by the party making such admission and are conclusive as to him. (3) People v. Genosa,36[11] Arroyo, Jr. v. Taduran,37[12] Carandang v. Court of

Appeals,38[13] in which cases the Court held that judicial admissions are conclusive upon the

27 party making it and may not be contradicted in the absence of prior showing that the admission had been made through palpable mistake, or no admission was in fact made. (4) People v. Razul39[14] and Lim v. Jabalde,40[15] where it was held that stipulations are recognized as declarations constituting judicial admissions, hence, binding upon the parties. Moreover, well-entrenched is the rule that the client is bound by the mistakes arising from negligence of his own counsel.41[16] The only exception to this rule is, as the Court of Appeals itself cited in its decision, when the negligence is so gross that the client is deprived of his day in court.42[17] In our considered view, however, that exception does not find any application in this case. As the records would plainly show, Silot was not deprived of his day in court. Also, as the appellate court observed, he could have introduced evidence, testimonial or otherwise, in order to controvert or correct the admission made by his counsel. Said the appellate court: As gleaned from the records, defendant-appellant Silot was not deprived of his day in court. He was given every opportunity to be heard through his pleadings and manifestations. He was also presented in open court to testify. As quoted earlier, Atty. Terbio, counsel for plaintiff-appellee de la Rosa, even repeatedly asked Atty. San Jose, defendant-appellant Silots counsel, if he would admit the purpose for which the witness Ariel Goingo will testify to dispense with his testimony, and Atty. San Jose repeatedly answered that We will admit that.

28 And when asked by the judge if he will admit it, he answered that they will admit P2,504,000.00.43[18] More importantly, Silots counsel clearly made admissions of the content of the testimony of witness Goingo, whose presentation was dispensed with. In People v.

Hernandez,44[19] we held that admissions made for the purpose of dispensing with proof of some facts are in the nature of judicial admissions, to wit: A stipulation of facts entered into by the prosecution and defense counsel during trial in open court is automatically reduced into writing and contained in the official transcript of the proceedings had in court. The conformity of the accused in the form of his signature affixed thereto is unnecessary in view of the fact that: [] an attorney who is employed to manage a partys conduct of a lawsuit [] has prima facie authority to make relevant admissions by pleadings, by oral or written stipulation, [] which unless allowed to be withdrawn are conclusive. (Italics supplied.) In fact, judicial admissions are frequently those of counsel or of the attorney of record, who is, for the purpose of the trial, the agent of his client. When such admissions are made [] for the purpose of dispensing with proof of some fact, [] they bind the client, whether made during, or even after, the trial.45[20] (Emphasis supplied.) Worth stressing, in this connection, judicial admissions do not require proof and may not be contradicted in the absence of a prior showing that the admissions had been made through palpable mistake.46[21]

29 Furthermore, in the case of Toh v. Court of Appeals,47[22] this Court emphasized the consequence of admitting and dispensing with the testimony of the proposed witness, thus: The Court sees no cogent reason why the said witness should be examined any further since his testimony as summarized in the offer made by counsel was expressly admitted by opposing counsel. With the said admission, the testimony of said witness is uncontroverted and even admitted as fact by opposing counsel.48[23]

On the issue of insufficient payment, Silot avers that he has rendered or provided labor for the total amount of P1,281,872.40, and that de la Rosa has benefited and profited from these labors.49[24] Without the labors provided by Silot, the constructed building would not have been painted, provided with electrical works and other works which were additional works on the building, and that to sanction de la Rosas claim would be to allow unjust enrichment on the part of de la Rosa.50[25] However, this claim has been belied by the admission made by his own counsel, as plainly manifest in the transcript: ATTY. TERBIO The purpose for which this witness will testify are the following: If admitted, we are willing to dispense the testimony. He will testify that in consideration of the 33% as mentioned in the contract, all the material supplies during the making of the additional works mentioned were all considered; he will testify that Silot was paid of all works that was performed as well as all materials supplied were considered, and that

30 the sum total of which is P2,504,469.65 and 33% of which is P826,474.98, and that De la Rosa paid the total amount of P1,018,000.00, and therefore, there is an excess payment of P191,525.00; he will testify that De la Rosa never received the demand or was confronted by Silot regarding an alleged balance, now, if the counsel wish to admit this. ATTY. SAN JOSE We admit that. ATTY. TERBIO Because these are all evidentiary and this has not been adequately covered. ATTY. SAN JOSE We will admit that.51[26] (Emphasis supplied.)

Clearly, given the circumstances of this case, the Court of Appeals did not err in ordering petitioner to return to respondent the amount of P191,525.02 overpayment. WHEREFORE, the instant petition is DENIED for lack of merit. The Decision dated July 9, 2003 of the Court of Appeals in CA-G.R. CV No. 68062 is AFFIRMED. Petitioner Gregorio Silot, Jr. is hereby ordered to return the amount of P191,525.02 to respondent Estrella de la Rosa, and to pay P20,000.00 as attorneys fees. Costs against petitioner. THIRD DIVISION G.R. No. 155335. July 14, 2005 PEOPLE OF THE PHILIPPINES, Petitioner, vs. JESUS MACAPAL, JR., Respondent. DECISION CARPIO MORALES, J.:

31 On review is the conviction of appellant, Jesus Macapal, Jr., for the rape of 23 year old mentally retarded Ligaya Sarino (the victim). The Information filed against appellant in the Regional Trial Court (RTC) of Butuan City alleged the rape to have been committed as follows: That on or about the evening of June, (sic) 1996, in Barangay Manapa, Buenavista, Agusan del Norte, Philippines, and within the jurisdiction of this Honorable Court, the above named accused, by means of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of one Ligaya R. Sa[r]ino, a 23-year old illiterate who appears to be mentally retarded, against her will.[1] On arraignment, appellant entered a plea of not guilty.[2] From the account of the victim, the following facts transpired one evening in June 1996 at Barangay Manapa, Buenavista, Agusan del Norte. While she was walking on her way home after she bought kerosene from the nearby store of appellant's father, Jesus Macapal, Sr., appellant suddenly appeared and waylaid her. Holding both her arms, appellant dragged her to an isolated grassy area where he ordered her to lie down. Although she wanted to shout, she froze with fear, appellant having poked a knife at her abdomen and threatened to kill her if she would shout or resist. Appellant thereafter succeeded in having sexual intercourse with her.[3] From the rest of the prosecution evidence, the following are gathered: On December 23, 1996, when the victim visited her sister Vilma Sarino Salazar (Vilma), Vilma noticed the victim's stomach bulging, prompting her to inquire what happened. While the victim initially refused to answer, she was later prevailed upon to answer upon her (Vilma's ) insistence and assurance that she would not be harmed. The victim then revealed what their neighbor, herein appellant, did to her.[4] When Vilma asked her when the incident happened, the victim answered 'when you just left for Manila which was, by Vilma's account, on June 3, 1996. Vilma thus invited to her house appellant's father, the purok leader of the barangay. In the presence of Vilma's three brothers and her husband, the victim narrated to appellant's father how his son ravaged her in a grassy area in their barangay. On hearing the victim's account, appellant's father requested the Sarinos not to report the incident to the authorities until he had spoken to appellant. Vilma paid no heed to the request, however, and reported the incident to the barangay captain and then to the town police[5] before which the victim's sworn statement was taken on December 30, 1996.[6] A complaint for rape bearing the victim's thumbmark was accordingly filed on January 2, 1997 against appellant before the Municipal Trial Court of Buenavista.[7] Meanwhile, on the request of appellant and his parents, First Assistant Provincial Prosecutor Orlando Doyon summoned the complainant and her relatives for a possible settlement of the case. The parties did appear before the prosecutor on January 30, 1997 during which the victim, her father Jesus B. Sarino, and her sister Vilma on one hand, and appellant and his parents on the other, forged a Sworn Agreement[8] whereby the victim and her kins agreed to withdraw the complaint in consideration of appellant's and his parents' commitment 'to shoulder one-half

32 (') of the expenses to be incurred . . . in connection with the delivery . . . of the child of [the victim]. An Affidavit of Desistance[9] was in fact executed by the victim stating that 'after mature deliberation and consultation with [her] father and other relatives, she was withdrawing her accusation against appellant. On March 19, 1997, the victim gave birth to a boy.[10] On March 25, 1997, the victim, assisted by her father, filed before the Provincial Prosecutor's office an 'EX-PARTE MOTION TO RESCIND AND NULLIFY AMICABLE SETTLEMENT [AND] TO REVIVE THE CASE AND TO ORDER THE REARREST OF [APPELLANT][11] alleging: xxx 2. That the undersigned were forced to enter into such agreement as they were duped and harassed by some policemen in Buenavista, Agusan del Norte; 3. That even if they were not the victims of trickery and harassment, they respectfully believe that they can revive the case as there was nothing in said agreement that would bar them from asking for said revival; xxx Appellant having failed to submit his counter-affidavit and controverting evidence, the Prosecutor's Office, finding the complaint uncontroverted, filed the information against appellant on May 2, 1997. It if further gathered from the evidence for the prosecution that Dr. Cheryl T. Zalsos, a psychiatrist at the Northern Mindanao Medical Center who conducted a psychiatric evaluation of the victim on November 25, 1998, found that 'the patient is suffering from Mental Retardation, mild to moderate . . . characterized by significantly sub-average intellectual functioning (IQ 70 or below) accompanied by significant limitations in adaptive functioning, with an onset below the age of 18.[12] And the doctor opined that while the mental capacity of the victim is comparable to that of a child between 9 to 12 years old,[13] she could testify in court but under closed door and leading questions should be avoided 'as retarded people may be suggestible and wish to please others.[14] It is gathered furthermore that when Dr. Benjamin B. Selim, Jr. (Dr. Selim), Medical Officer III of the Butuan Provincial Hospital, examined the victim on January 13, 1997, he found her to be in a pregnant state and that her hymen was not intact. On the basis of the ultrasound examination, he opined that she 'had conception probably third to the last week of June 1996.[15] On the other hand, appellant, denying the accusation, claimed as follows: He came to know for the first time of the charge on December 21, 1996 when he appeared before the barangay captain[16] during which the victim's sister, Vilma, did most of the talking, she informing that

33 the alleged rape was committed on even date, December 21, 1996. At said meeting, the victim who had a boyfriend named Edsel was asked who raped her, but she was mum. To lend credence to appellant's innocence and his suggestion that her boyfriend could have impregnated the victim, Mansueto Pande, a neighbor of the victim, related that one afternoon in August 1996, he witnessed the victim and Edsel having sexual intercourse in the house of Nelson Gultiano where Edsel was then visiting.[17] And Sebastian Bermudez (Bermudez), barangay captain of Magsaysay, Jabonga, Agusan del Norte, ventured the opinion that appellant could not have committed the rape in June 1996 as appellant was from May 22 to August 17, 1996[18] in barangay Magsaysay, in the farm of his (Bermudez's ) uncle, working as a helper in the operation of a turtle tractor. Rebutting the defense evidence, the prosecution presented Nelson Gultiano (Gultiano), the owner of the house where defense witness Mansueto Pande allegedly saw the victim and a certain Edsel having sexual intercourse. Gultiano denied that the victim's alleged boyfriend Edsel was ever in his house in August 1996.[19] As surrebuttal witness, the defense presented Edgar Labata who declared that he was a purok president in barangay Mayapa and he knew that the victim's boyfriend Edsel was living with Gultiano in 1996.[20] Finding for the prosecution, Branch 2 of the RTC of Butuan City convicted appellant by decision of August 30, 2000, the dispositive portion of which reads: WHEREFORE, the Court hereby finds accused JESUS MACAPAL, JR. y JACA GUILTY beyond reasonable doubt for the crime of rape as charged, defined and penalized under Article 335 of the Revised Penal Code. In the absence of any aggravating or mitigating circumstance and it appearing that the accused is not disqualified from enjoying the benefits of the Indeterminate Sentence Law, the Court hereby sentences said accused JESUS MACAPAL, JR. y JACA to suffer an indefinite prison term of twelve (12) years and one (1) day of Reclusion Temporal as minimum to Reclusion Perpetua as maximum. The accused is ordered to pay the victim/private complainant the sum of PhP50,000.00 as actual and compensatory damages and to recognize the child as his illegitimate child whom the accused sired as the natural consequence of his criminal act. The accused, in the service of his sentence, shall be credited with the period of his preventive imprisonment he has undergone pursuant to RA 6127. SO ORDERED.[21] (Underscoring supplied) Aggrieved, appellant elevated the case to the Court of Appeals which affirmed his conviction but modified the penalty imposed upon him by the trial court in this wise: WHEREFORE, the appealed decision is MODIFIED in that the straight penalty of reclusion perpetua is imposed on the accused-appellant who is further ordered to pay the offended party

34 the sum of P50,000.00 as moral damages. In all other respects, the same decision stands. Costs against the appellant. Pursuant, however, to the last paragraph of Section 13, Rule 124 of the 2000 Revised Rules of Criminal Procedure, this Court refrains from entering the judgment and, instead, certifies and orders the immediate elevation of the records to the Supreme Court for review. SO ORDERED.[22] (Emphasis and underscoring supplied) As the dispositive portion of the appellate decision states, the case was certified to this Court pursuant to Section 13 of Rule 124 of the Revised Rules of Court.[23] Appellant argues that the victim, a mental retardate, is incompetent to establish his identity for, so he contends, it is not easy to ascertain the identity of a rapist when the victim is deprived of reason.[24] Besides, appellant continues, there was completely no evidence presented to prove that the incident occurred in June 1996 as the victim could not recall the year, the time and the day[25] of the alleged offense. Appellant further argues that the trial court erred in assuming jurisdiction over the case despite the absence of evidence to prove the place of the incident.[26] At all events, he claims that the trial court unduly deprived him of his right to fully defend himself.[27] The appeal is bereft of merit. In rape cases, the victim's credibility is crucial to the determination of the accused's culpability as the crime generally involves two persons only and usually perpetrated in seclusion. While it may be difficult to determine the credibility of one who is a mental retardate, it can still be attained by deducing from the manner he or she testifies in court as to the surrounding facts of the crime committed. As long as a witness' testimony is straightforward, candid and unflawed by inconsistencies or contradictions in its material points, and his or her demeanor is consistent with one who has been victimized to thus bolster credibility with the verity born out of human nature and experience,[28] as in the herein victim's case, credibility can be accorded to him or her. Consider the following testimony of the victim which was punctuated with her crying as she recalled the victim threatening to kill her and the bulging of her stomach. PROS. GADANI: Q You said you are Ligaya Sarino, do you know who is this Ligaya Sarino who is the private complainant in this case? WITNESS: A I, Maam.

35 Q Will you tell the Hon. Court why you file[d] this case against Jesus Macapal, Jr. alias 'Alot? A Because he raped me. ATTY. CHAVEZ: May I request that the word 'Tamastamasan be quoted, your Honor. COURT: Q Will you please clarify the word 'Tamastamasan? A He raped me. PROS. DAGANI: Q Will you tell the Honorable Court, Ligaya, how you were raped by Jesus Macapal, Jr. alias 'Alot? A I can. (Witness when answering usually close[s] her eyes.) Q Please tell the Court? A I was made to do an errand by my father to buy a (sic) Kerosene, and after I bought Kerosene, on my way home he waylaid me and brought me to a grassy area; he made me lie down and he pointed a knife at me and threatened me that if I would tell my father and siblings he would kill me. Q After he told you that he would kill you, what happened next? (Witness is crying.) A My stomach bulged and then it was after that I told my Ate Vilma Salazar. COURT: Q You said you were raped, will you please tell the court how you were raped? WITNESS: A He took off my short pants and my panty, and he inserted his penis into my vagina. [29] (Emphasis and underscoring supplied) Consider too the victim's identification of appellant as the malefactor.

36 PROS. DAGANI: Q Now, you made mention that the person who was responsible in raping you is Jesus Macapal, Jr., alias Alot, do you know this person before he raped you? A Yes, Maam. Q Why do you know him? A Because he was once our neighbor . Q Where were you neighbor with Jesus Macapal? A In Manapa, Buenavista. Q If this Jesus Macapal, Jr. alias Alot is in court, will you be able to identify him? A Yes, Maam. Q Is he in court? A He is in court. Q Will you please point to him? (Witness pointing to a lone person seated on the gallery who is the accused Jesus Macapal, Jr. alias 'Alot). [30] (Emphasis and underscoring supplied) The straightforward narration of the victim of what transpired, accompanied by her categorical identification of appellant as the malefactor, sealed the case for the prosecution. A litany of cases echoes the rule that great respect on the findings of the trial court on the credibility of witnesses and their testimonies is accorded. For the trial judge observes the behavior and demeanor of the witness in court. His evaluation or assessment of the credibility of witness and of testimony acquires greater significance in rape cases because from the nature of the offense, the only evidence that can oftentimes be offered to establish the guilt of the accused is the victim's testimony.[31] It is only in exceptional circumstances that this rule is brushed aside, such as when the court's evaluation was reached arbitrarily, or when the trial court overlooked, misunderstood or misapplied certain facts or circumstances of weight and substance which could affect the result of the case.[32] Mental retardation per se does not affect credibility. A mentally retarded may be a credible witness.[33] The acceptance of his or her testimony depends on the quality of his or her perceptions and the manner he or she can make them known to the court. So this Court held in People v. Guillermo :[34]

37 In People v. Munar (131 SCRA 44, 46[1984]), although the complainant therein was a 19-year old female, with a mental age of a 5-year old, we still held that she was a competent witness. We therein relied on the findings of the trial court that complainant's answer were intelligible enough to be understood. The complainant therein could convey her thoughts by words and signs. Furthermore, an examining physician from the National Mental Hospital was presented in that case who testified that the mental deficiency of the witness did not prevent her from recalling painful experiences. In People v. Gerones, (193 SCRA 263, 267 [1991]), we found, upon close examination of the records, that the victim managed to communicate her ordeal to the court clearly and consistently. The trial court found the victim therein to have the mental capacity of a ten-year old. Hence, we declared that we were convinced that a ten-year old girl could adequately narrate facts which show that she had been raped. The acceptance of a mental retardate's testimony, therefore, as in the case of other witnesses, must still depend on its nature and credibility or, otherwise put, the quality of the person's perceptions and the manner he can make them known to the court. (Underscoring supplied) Thus, in People v. Limio ,[35] the complainant's low intelligence notwithstanding, this Court entertained no doubt in her testimony, it having categorically showed that 'she had been subjected to a harrowing unspeakable experience, which left an indelible impression in her mind as a rape victim. In the case at bar, albeit the victim's testimony was tainted with inconsistencies,[36] these are mere collateral and minor matters which would not compel this Court from discrediting her testimony, given her mental retardation. In fact, testimonial discrepancies, which could have been caused by the natural fickleness of memory, tend to strengthen, rather than weaken, credibility as they negate any suspicion of rehearsed testimony and do not destroy the substance of the victim's testimony.[37] As for the defense attack on the prosecution in having allegedly failed to prove the date and place of commission of the rape,[38] the same fails. The records show that when the victim executed a sworn statement before the police on December 30, 1996,[39] she was categorical in furnishing the date and place of the commission of the rape. xxx Q: Where and when did this incident happened (sic), if any? LIGAYA A: That was sometimes (sic) in the month of June 1996, in the evening which I could not remember when the exact time and date, at a grassy portion of a human trail going to our house at Purok 4, Barangay Manapa, Buenavista, Agusan del Norte. [40] x x x (Emphasis and underscoring supplied)

38 And during the preliminary examination of the case on January 6, 1997 before Municipal Judge Pancracio N. Escaan, the victim gave the following account: COURT Q Do you know Jesus Macapal Jr. alias Alot? A I know him, your honor. Q How long have you known him? A Long time ago, your honor. Q Are you neighbors with Alot A We are neighbors Q How far is your house to the house of Alot? A Our house is farther from the house of Alot. Q Do you recall meeting him last June/96 in the evening? A I remember, your honor. Q In what reason (sic) have you met him? A When I bought kerosene. Q Where? A At their store. Q What happened at the store of Alot? A Nothing. Q Even after June/96 nothing happen between you and A lot? A There was, your honor. Q When was that? A I cannot remember. Q Was it June/96?

39 A No answer Q When you bought kerosene from the store of Alot, what happened? A He rape[d] me. Q Where? A At the isolated place.[41] (Emphasis and underscoring supplied) Even Dr. Selim echoed the victim's account to him about the month and year of commission. Thus, on direct examination, the doctor declared: PROS. DAGANI: Q When you earlier testified that you asked about the . . . DOI when you stated this in your certificate, DOI ' meaning date of incident: June 1996, from whom did you get this date? A From the informant including the victim because she was there and they can only supply me this date. Q Are you saying doctor that both the patient and the informant told you about this date? A Yes, maam.[42] (Emphasis and underscoring supplied) And on cross examination, he declared: ATTY. CHAVEZ: Q Doctor, according to this medical certificate, you mentioned and indicated the DOI meaning date of incident. You indicated here June 1996, you made this indication because you based the age of pregnancy? A Not on the basis of the pregnancy. 'But I asked the patient on when meaning the time and the date of the incident. But the alleged victim can only recall the month and the year. But the exact date, she cannot . Q If the alleged victim supplied that information, why was there a need for the ultra sound? A To determine the exact date of the gestation of the fetus.[43] (Emphasis and underscoring supplied) On the merits of the defense of denial and alibi, the same must be discredited. Appellant is alleged by defense witness Sebastian Bermudez to have been, in June 1996, at barangay Magsaysay, Jabonga, Agusan del Norte of which he (Bermudez') was a resident,[44] working as helper in the operation of a turtle tractor on the farm of his (Bermudez') uncle.

40 Bermudez following testimony on cross-examination, quoted verbatim, does not, however, rule out appellant's presence on the date and place of the commission of the crime: PROS. DAGANI: Q Now, you said that you saw Jesus Macapal, Jr. when was this that you saw him plowing the field of your uncle? WITNESS BERMUDEZ A May 25, 1996. COURT: Q On May 25, 1996, you saw Jesus Macapal, Jr., on the following day May 26, 1996? A They were on my rice land working. Q From May 25 up to what date did Jesus Macapal stay in your barangay? A I think it was on August 17 or 27 when I saw Jesus Macapal, Jr. and his aunt at the waiting shed because the waiting shed is located at the junction of the road going to my house. Q So, more or less, Jesus Macapal, Jr. arrived in your barangay in the month of May and he was there until August when he left, is that correct? A Yes, Your Honor. COURT: Proceed. PROS. DAGANI: Q Now , from that period, how many times were you able to actually see Jesus Macapal, Jr? A After I have him plowed in the ricefield and the turtle machine broke down, he stopped working but he again work[ed] for me after one week also when the turtle was repaired. I could not say how many times because it was intermittently and he lived in a place far from my house . [45] (Emphasis and underscoring supplied) Alibi is a defense that places the defendant at the relevant time and in a place different from the commission of the crime, so removed therefrom as to render it impossible for him to be the guilty party.[46] For it to prosper, the following must thus be established: the presence of the appellant in another place at the time of the commission of the crime and the physical impossibility for him to be at the scene of the crime at the time of its commission.[47] The accused must not only prove that he was somewhere else when the crime was committed, he must also convincingly demonstrate the physical impossibility of his presence at the locus criminis at the time of the incident.[48]

41 In the case at bar, as earlier stated, the testimony of defense witness Bermudez did not rule out the presence of appellant on the date and place of the commission of the crime. In any event, even assuming that appellant was in barangay Magsaysay from May 25 to August 25, 1996, the distance from barangay Manapa, Buenavista where the crime took place to barangay Magsaysay, Jabonga is about 75 kilometers, as the trial court found, with an average travel time of about three (3) hours only,[49] to thus render it not physically impossible for appellant to have been at the scene of the crime on the date and time of its commission. Moreover, the positive identification by the victim of appellant as the culprit being categorical and consistent and devoid of any showing of ill motive on her part prevails over alibi and denial which, if not substantiated by clear and convincing evidence, are negative and selfserving evidence undeserving of weight in law.[50] As for appellant's argument that he was deprived of his right to fully defend himself in light of the trial court's denial[51] of his 'MOTION FOR DNA TEST[52] wherein he raised as 'main issue ' whether he fathered the victim's child ' fails too. The identity of the father of a rape victim's child is non-issue in a charge for rape, the impregnation of the victim not being an element of the offense: More importantly, it should be pointed out that these consolidated cases are criminal cases for rape, not civil actions for paternity or filiation. The identity of the father of the victim's child is a nonissue. Even her pregnancy is beside the point. What matters is the occurrence of the sexual assault committed by appellant on the person of the victim on four separate occasions . . .[53] (Emphasis and italics in the original) One last word on appellant's plea of innocence. To the Court, appellant's act of committing, along with his parents, in the Agreement[54] forged with the victim while the case was on preliminary investigation before the Prosecutor's Office 'to shoulder one-half (1/2) of the expenses to be incurred by [the victim] . . . in connection with the delivery of her child is the coup de grace that dissipates any nagging doubts on his guilt. Respecting the imposition by the Court of Appeals of a straight penalty of reclusion perpetua, the same is in order, such penalty being indivisible.[55] WHEREFORE, the challenged October 1, 2002 decision of the Court of Appeals is hereby AFFIRMED. Costs against appellant. SO ORDERED. Republic of the Philippines SUPREME COURT Manila A.M. NO. 004-07-SC November 21, 2000

42 RULE ON EXAMINATION OF A CHILD WITNESS Section 1. Applicability of the Rule. - Unless otherwise provided, this Rule shall govern the examination of child witnesses who are victims of crime, accused of a crime, and witnesses to crime. It shall apply in all criminal proceedings and non-criminal proceedings involving child witnesses. Section 2. Objectives. - The objectives of this Rule are to create and maintain an environment that will allow children to give reliable and complete evidence, minimize trauma to children, encourage children to testify in legal proceedings, and facilitate the ascertainment of truth. Section 3. Construction of the Rule. - This Rule shall be liberally construed to uphold the best interests of the child and to promote maximum accommodation of child witnesses without prejudice to the constitutional rights of the accused. Section 4. Definitions. (a) A "child witness" is any person who at the time of giving testimony is below the age of eighteen (18) years. In child abuse cases, a child includes one over eighteen (18) years but is found by the court as unable to fully take care of himself or protect himself from abuse, neglect, cruelty, exploitation, or discrimination because of a physical or mental disability or condition. (b) "Child abuse" means physical, psychological, or sexual abuse, and criminal neglect as defined in Republic Act No. 7610 and other related laws. (c) "Facilitator" means a person appointed by the court to pose questions to a child. (d) "Record regarding a child" or "record" means any photograph, videotape, audiotape, film, handwriting, typewriting, printing, electronic recording, computer data or printout, or other memorialization, including any court document, pleading, or any copy or reproduction of any of the foregoing, that contains the name, description, address, school, or any other personal identifying information about a child or his family and that is produced or maintained by a public agency, private agency, or individual. (e) A "guardian ad litem" is a person appointed by the court where the case is pending for a child who is a victim of, accused of, or a witness to a crime to protect the best interests of the said child. (f) A "support person" is a person chosen by the child to accompany him to testify at or attend a judicial proceeding or deposition to provide emotional support for him. (g) "Best interests of the child" means the totality of the circumstances and conditions as are most congenial to the survival, protection, and feelings of security of the child and most encouraging to his physical, psychological, and emotional development. It also means the least detrimental available alternative for safeguarding the growth and development of the child.

43 (h) "Developmental level" refers to the specific growth phase in which most individuals are expected to behave and function in relation to the advancement of their physical, socio-emotional, cognitive, and moral abilities. (i) "In-depth investigative interview" or "disclosure interview" is an inquiry or proceeding conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services for the purpose of determining whether child abuse has been committed. Section 5. Guardian ad litem. (a) The court may appoint a guardian ad litem for a child who is a victim of, accused of, or a witness to a crime to promote the best interests of the child. In making the appointment, the court shall consider the background of the guardian ad litem and his familiarity with the judicial process, social service programs, and child development, giving preference to the parents of the child, if qualified. The guardian ad litem may be a member of the Philippine Bar. A person who is a witness in any proceeding involving the child cannot be appointed as a guardian ad litem. (b) The guardian ad litem: (1) Shall attend all interviews, depositions, hearings, and trial proceedings in which a child participates; (2) Shall make recommendations to the court concerning the welfare of the child; (3) Shall have access to all reports, evaluations, and records necessary to effectively advocate for the child, except privileged communications; (4) Shall marshal and coordinate the delivery of resources and special services to the child; (5) Shall explain, in language understandable to the child, all legal proceedings, including police investigations, in which the child is involved; (6) Shall assist the child and his family in coping with the emotional effects of crime and subsequent criminal or non-criminal proceedings in which the child is involved; (7) May remain with the child while the child waits to testify; (8) May interview witnesses; and (9) May request additional examinations by medical or mental health professionals if there is a compelling need therefor.

44 (c) The guardian ad litem shall be notified of all proceedings but shall not participate in the trial. However, he may file motions pursuant to sections 9, 10, 25, 26, 27 and 31(c). If the guardian ad litem is a lawyer, he may object during trial that questions asked of the child are not appropriate to his developmental level. (d) The guardian ad litem may communicate concerns regarding the child to the court through an officer of the court designated for that purpose. (e) The guardian ad litem shall not testify in any proceeding concerning any information, statement, or opinion received from the child in the course of serving as a guardian ad litem, unless the court finds it necessary to promote the best interests of the child. (f) The guardian ad litem shall be presumed to have acted in good faith in compliance with his duties described in sub-section (b). Section 6. Competency. - Every child is presumed qualified to be a witness. However, the court shall conduct a competency examination of a child, motu proprio or on motion of a party, when it finds that substantial doubt exists regarding the ability of the child to perceive, remember, communicate, distinguish truth from falsehood, or appreciate the duty to tell the truth in court. (a) Proof of necessity. - A party seeking a competency examination must present proof of necessity of competency examination. The age of the child by itself is not a sufficient basis for a competency examination. (b) Burden of proof. - To rebut the presumption of competence enjoyed by a child, the burden of proof lies on the party challenging his competence. (c) Persons allowed at competency examination. Only the following are allowed to attend a competency examination: (1) The judge and necessary court personnel; (2) The counsel for the parties; (3) The guardian ad litem; (4) One or more support persons for the child; and (5) The defendant, unless the court determines that competence can be fully evaluated in his absence. (d) Conduct of examination. - Examination of a child as to his competence shall be conducted only by the judge. Counsel for the parties, however, can submit questions to the judge that he may, in his discretion, ask the child.

45 (e) Developmentally appropriate questions. - The questions asked at the competency examination shall be appropriate to the age and developmental level of the child; shall not be related to the issues at trial; and shall focus on the ability of the child to remember, communicate, distinguish between truth and falsehood, and appreciate the duty to testify truthfully. (f) Continuing duty to assess competence. - The court has the duty of continuously assessing the competence of the child throughout his testimony. Section 7. Oath or affirmation. - Before testifying, a child shall take an oath or affirmation to tell the truth. Section 8. Examination of a child witness. - The examination of a child witness presented in a hearing or any proceeding shall be done in open court. Unless the witness is incapacitated to speak, or the question calls for a different mode of answer, the answers of the witness shall be given orally. The party who presents a child witness or the guardian ad litem of such child witness may, however, move the court to allow him to testify in the manner provided in this Rule. Section 9. Interpreter for child. (a) When a child does not understand the English or Filipino language or is unable to communicate in said languages due to his developmental level, fear, shyness, disability, or other similar reason, an interpreter whom the child can understand and who understands the child may be appointed by the court, motu proprio or upon motion, to interpret for the child. (b) If a witness or member of the family of the child is the only person who can serve as an interpreter for the child, he shall not be disqualified and may serve as the interpreter of the child. The interpreter, however, who is also a witness, shall testify ahead of the child. (c) An interpreter shall take an oath or affirmation to make a true and accurate interpretation. Section 10. Facilitator to pose questions to child. (a) The court may, motu proprio or upon motion, appoint a facilitator if it determines that the child is unable to understand or respond to questions asked. The facilitator may be a child psychologist, psychiatrist, social worker, guidance counselor, teacher, religious leader, parent, or relative. (b) If the court appoints a facilitator, the respective counsels for the parties shall pose questions to the child only through the facilitator. The questions shall either be in the words used by counsel or, if the child is not likely to understand the same, in words that are comprehensible to the child and which convey the meaning intended by counsel.

46 (c) The facilitator shall take an oath or affirmation to pose questions to the child according to the meaning intended by counsel. Section 11. Support persons. (a) A child testifying at a judicial proceeding or making a deposition shall have the right to be accompanied by one or two persons of his own choosing to provide him emotional support. (1) Both support persons shall remain within the view of the child during his testimony. (2) One of the support persons may accompany the child to the witness stand, provided the support person does not completely obscure the child from the view of the opposing party, judge, or hearing officer. (3) The court may allow the support person to hold the hand of the child or take other appropriate steps to provide emotional support to the child in the course of the proceedings. (4) The court shall instruct the support persons not to prompt, sway, or influence the child during his testimony. (b) If the support person chosen by the child is also a witness, the court may disapprove the choice if it is sufficiently established that the attendance of the support person during the testimony of the child would pose a substantial risk of influencing or affecting the content of the testimony of the child. (c) If the support person who is also a witness is allowed by the court, his testimony shall be presented ahead of the testimony of the child. Section 12. Waiting area for child witnesses. - The courts are encouraged to provide a waiting area for children that is separate from waiting areas used by other persons. The waiting area for children should be furnished so as to make a child comfortable. Section 13. Courtroom environment. - To create a more comfortable environment for the child, the court may, in its discretion, direct and supervise the location, movement and deportment of all persons in the courtroom including the parties, their counsel, child, witnesses, support persons, guardian ad litem, facilitator, and court personnel. The child may be allowed to testify from a place other than the witness chair. The witness chair or other place from which the child testifies may be turned to facilitate his testimony but the opposing party and his counsel must have a frontal or profile view of the child during the testimony of the child. The witness chair or other place from which the child testifies may also be rearranged to allow the child to see the opposing party and his counsel, if he chooses to look at them, without turning his body or leaving the witness stand. The judge need not wear his judicial robe.

47 Nothing in this section or any other provision of law, except official in-court identification provisions, shall be construed to require a child to look at the accused. Accommodations for the child under this section need not be supported by a finding of trauma to the child. Section 14. Testimony during appropriate hours. - The court may order that the testimony of the child should be taken during a time of day when the child is well-rested. Section 15. Recess during testimony. The child may be allowed reasonable periods of relief while undergoing direct, cross, re-direct, and re-cross examinations as often as necessary depending on his developmental level. Section 16. Testimonial aids. - The court shall permit a child to use dolls, anatomically-correct dolls, puppets, drawings, mannequins, or any other appropriate demonstrative device to assist him in his testimony. Section 17. Emotional security item. - While testifying, a child shall be allowed to have an item of his own choosing such as a blanket, toy, or doll. Section 18. Approaching the witness. - The court may prohibit a counsel from approaching a child if it appears that the child is fearful of or intimidated by the counsel. Section 19. Mode of questioning. - The court shall exercise control over the questioning of children 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 harassment or undue embarrassment, and (4) avoid waste of time. The court may allow the child witness to testify in a narrative form. Section 20. Leading questions. - The court may allow leading questions in all stages of examination of a child if the same will further the interests of justice. Section 21. Objections to questions. - Objections to questions should be couched in a manner so as not to mislead, confuse, frighten, or intimidate the child. Section 22. Corroboration. - Corroboration shall not be required of a testimony of a child. His testimony, if credible by itself, shall be sufficient to support a finding of fact, conclusion, or judgment subject to the standard of proof required in criminal and non-criminal cases. Section 23. Excluding the public. - When a child testifies, the court may order the exclusion from the courtroom of all persons, including members of the press, who do not have a direct interest in the case. Such an order may be made to protect the right to privacy of the child or if the court determines on the record that requiring the child to testify in open court would cause psychological harm to him, hinder the ascertainment of truth, or result in his inability to effectively communicate due to embarrassment, fear, or timidity. In making its order, the court

48 shall consider the developmental level of the child, the nature of the crime, the nature of his testimony regarding the crime, his relationship to the accused and to persons attending the trial, his desires, and the interests of his parents or legal guardian. The court may, motu proprio, exclude the public from the courtroom if the evidence to be produced during trial is of such character as to be offensive to decency or public morals. The court may also, on motion of the accused, exclude the public from trial, except court personnel and the counsel of the parties. Section 24. Persons prohibited from entering and leaving courtroom. - The court may order that persons attending the trial shall not enter or leave the courtroom during the testimony of the child. Section 25. Live-link television testimony in criminal cases where the child is a victim or a witness. (a) The prosecutor, counsel or the guardian ad litem may apply for an order that the testimony of the child be taken in a room outside the courtroom and be televised to the courtroom by live-link television. Before the guardian ad litem applies for an order under this section, he shall consult the prosecutor or counsel and shall defer to the judgment of the prosecutor or counsel regarding the necessity of applying for an order. In case the guardian ad ltiem is convinced that the decision of the prosecutor or counsel not to apply will cause the child serious emotional trauma, he himself may apply for the order. The person seeking such an order shall apply at least five (5) days before the trial date, unless the court finds on the record that the need for such an order was not reasonably foreseeable. (b) The court may motu proprio hear and determine, with notice to the parties, the need for taking the testimony of the child through live-link television. (c) The judge may question the child in chambers, or in some comfortable place other than the courtroom, in the presence of the support person, guardian ad litem, prosecutor, and counsel for the parties. The questions of the judge shall not be related to the issues at trial but to the feelings of the child about testifying in the courtroom. (d) The judge may exclude any person, including the accused, whose presence or conduct causes fear to the child. (e) The court shall issue an order granting or denying the use of live-link television and stating the reasons therefor. It shall consider the following factors: (1) The age and level of development of the child; (2) His physical and mental health, including any mental or physical disability; (3) Any physical, emotional, or psychological injury experienced by him;

49 (4) The nature of the alleged abuse; (5) Any threats against the child; (6) His relationship with the accused or adverse party; (7) His reaction to any prior encounters with the accused in court or elsewhere; (8) His reaction prior to trial when the topic of testifying was discussed with him by parents or professionals; (9) Specific symptoms of stress exhibited by the child in the days prior to testifying; (10) Testimony of expert or lay witnesses; (11) The custodial situation of the child and the attitude of the members of his family regarding the events about which he will testify; and (12) Other relevant factors, such as court atmosphere and formalities of court procedure. (f) The court may order that the testimony of the child be taken by live-link television if there is a substantial likelihood that the child would suffer trauma from testifying in the presence of the accused, his counsel or the prosecutor as the case may be. The trauma must be of a kind which would impair the completeness or truthfulness of the testimony of the child. (g) If the court orders the taking of testimony by live-link television: (1) The child shall testify in a room separate from the courtroom in the presence of the guardian ad litem; one or both of his support persons; the facilitator and interpreter, if any; a court officer appointed by the court; persons necessary to operate the closed-circuit television equipment; and other persons whose presence are determined by the court to be necessary to the welfare and wellbeing of the child; (2) The judge, prosecutor, accused, and counsel for the parties shall be in the courtroom. The testimony of the child shall be transmitted by live-link television into the courtroom for viewing and hearing by the judge, prosecutor, counsel for the parties, accused, victim, and the public unless excluded. (3) If it is necessary for the child to identify the accused at trial, the court may allow the child to enter the courtroom for the limited purpose of identifying the accused, or the court may allow the child to identify the accused by observing the image of the latter on a television monitor.

50 (4) The court may set other conditions and limitations on the taking of the testimony that it finds just and appropriate, taking into consideration the best interests of the child. (h) The testimony of the child shall be preserved on videotape, digital disc, or other similar devices which shall be made part of the court record and shall be subject to a protective order as provided in section 31(b). Section 26. Screens, one-way mirrors, and other devices to shield child from accused. (a) The prosecutor or the guardian ad litem may apply for an order that the chair of the child or that a screen or other device be placed in the courtroom in such a manner that the child cannot see the accused while testifying. Before the guardian ad litem applies for an order under this section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of section 25(a) of this Rule. The court shall issue an order stating the reasons and describing the approved courtroom arrangement. (b) If the court grants an application to shield the child from the accused while testifying in the courtroom, the courtroom shall be arranged to enable the accused to view the child. Section 27. Videotaped deposition. (a) The prosecutor, counsel, or guardian ad litem may apply for an order that a deposition be taken of the testimony of the child and that it be recorded and preserved on videotape. Before the guardian ad litem applies for an order under this section, he shall consult with the prosecutor or counsel subject to the second and third paragraphs of section 25(a). (b) If the court finds that the child will not be able to testify in open court at trial, it shall issue an order that the deposition of the child be taken and preserved by videotape. (c) The judge shall preside at the videotaped deposition of a child. Objections to deposition testimony or evidence, or parts thereof, and the grounds for the objection shall be stated and shall be ruled upon at the time of the taking of the deposition. The other persons who may be permitted to be present at the proceeding are: (1) The prosecutor; (2) The defense counsel; (3) The guardian ad litem; (4) The accused, subject to sub-section (e); (5) Other persons whose presence is determined by the court to be necessary to the welfare and well-being of the child;

51 (6) One or both of his support persons, the facilitator and interpreter, if any; (7) The court stenographer; and (8) Persons necessary to operate the videotape equipment. (d) The rights of the accused during trial, especially the right to counsel and to confront and cross-examine the child, shall not be violated during the deposition. (e) If the order of the court is based on evidence that the child is unable to testify in the physical presence of the accused, the court may direct the latter to be excluded from the room in which the deposition is conducted. In case of exclusion of the accused, the court shall order that the testimony of the child be taken by live-link television in accordance with section 25 of this Rule. If the accused is excluded from the deposition, it is not necessary that the child be able to view an image of the accused. (f) The videotaped deposition shall be preserved and stenographically recorded. The videotape and the stenographic notes shall be transmitted to the clerk of the court where the case is pending for safekeeping and shall be made a part of the record. (g) The court may set other conditions on the taking of the deposition that it finds just and appropriate, taking into consideration the best interests of the child, the constitutional rights of the accused, and other relevant factors. (h) The videotaped deposition and stenographic notes shall be subject to a protective order as provided in section 31(b). (i) If, at the time of trial, the court finds that the child is unable to testify for a reason stated in section 25(f) of this Rule, or is unavailable for any reason described in section 4(c), Rule 23 of the 1997 Rules of Civil Procedure, the court may admit into evidence the videotaped deposition of the child in lieu of his testimony at the trial. The court shall issue an order stating the reasons therefor. (j) After the original videotaping but before or during trial, any party may file any motion for additional videotaping on the ground of newly discovered evidence. The court may order an additional videotaped deposition to receive the newly discovered evidence. Section 28. Hearsay exception in child abuse cases. - A statement made by a child describing any act or attempted act of child abuse, not otherwise admissible under the hearsay rule, may be admitted in evidence in any criminal or non-criminal proceeding subject to the following rules: (a) Before such hearsay statement may be admitted, its proponent shall make known to the adverse party the intention to offer such statement and its particulars to provide him a fair opportunity to object. If the child is available, the court shall, upon motion of the adverse party, require the child to be present at the presentation of the hearsay

52 statement for cross-examination by the adverse party. When the child is unavailable, the fact of such circumstance must be proved by the proponent. (b) In ruling on the admissibility of such hearsay statement, the court shall consider the time, content and circumstances thereof which provide sufficient indicia of reliability. It shall consider the following factors: (1) Whether there is a motive to lie; (2) The general character of the declarant child; (3) Whether more than one person heard the statement; (4) Whether the statement was spontaneous; (5) The timing of the statement and the relationship between the declarant child and witness; (6) Cross-examination could not show the lack of knowledge of the declarant child; (7) The possibility of faulty recollection of the declarant child is remote; and (8) The circumstances surrounding the statement are such that there is no reason to suppose the declarant child misrepresented the involvement of the accused. (c) The child witness shall be considered unavailable under the following situations: (1) Is deceased, suffers from physical infirmity, lack of memory, mental illness, or will be exposed to severe psychological injury; or (2) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means. (d) When the child witness is unavailable, his hearsay testimony shall be admitted only if corroborated by other admissible evidence. Section 29. Admissibility of videotaped and audiotaped in-depth investigative or disclosure interviews in child abuse cases. - The court may admit videotape and audiotape in-depth investigative or disclosure interviews as evidence, under the following conditions: (a) The child witness is unable to testify in court on grounds and under conditions established under section 28 (c). (b) The interview of the child was conducted by duly trained members of a multidisciplinary team or representatives of law enforcement or child protective services

53 in situations where child abuse is suspected so as to determine whether child abuse occurred. (c) The party offering the videotape or audiotape must prove that: (1) the videotape or audiotape discloses the identity of all individuals present and at all times includes their images and voices; (2) the statement was not made in response to questioning calculated to lead the child to make a particular statement or is clearly shown to be the statement of the child and not the product of improper suggestion; (3) the videotape and audiotape machine or device was capable of recording testimony; (4) the person operating the device was competent to operate it; (5) the videotape or audiotape is authentic and correct; and (6) it has been duly preserved. The individual conducting the interview of the child shall be available at trial for examination by any party. Before the videotape or audiotape is offered in evidence, all parties shall be afforded an opportunity to view or listen to it and shall be furnished a copy of a written transcript of the proceedings. The fact that an investigative interview is not videotaped or audiotaped as required by this section shall not by itself constitute a basis to exclude from evidence out-of-court statements or testimony of the child. It may, however, be considered in determining the reliability of the statements of the child describing abuse. Section 30. Sexual abuse shield rule. (a) Inadmissible evidence. - The following evidence is not admissible in any criminal proceeding involving alleged child sexual abuse: (1) Evidence offered to prove that the alleged victim engaged in other sexual behavior; and (2) Evidence offered to prove the sexual predisposition of the alleged victim. (b) Exception. - Evidence of specific instances of sexual behavior by the alleged victim to prove that a person other than the accused was the source of semen, injury, or other physical evidence shall be admissible. A party intending to offer such evidence must:

54 (1) File a written motion at least fifteen (15) days before trial, specifically describing the evidence and stating the purpose for which it is offered, unless the court, for good cause, requires a different time for filing or permits filing during trial; and (2) Serve the motion on all parties and the guardian ad litem at least three (3) days before the hearing of the motion. Before admitting such evidence, the court must conduct a hearing in chambers and afford the child, his guardian ad litem, the parties, and their counsel a right to attend and be heard. The motion and the record of the hearing must be sealed and remain under seal and protected by a protective order set forth in section 31(b). The child shall not be required to testify at the hearing in chambers except with his consent. Section 31. Protection of privacy and safety. (a) Confidentiality of records. - Any record regarding a child shall be confidential and kept under seal. Except upon written request and order of the court, a record shall only be released to the following: (1) Members of the court staff for administrative use; (2) The prosecuting attorney; (3) Defense counsel; (4) The guardian ad litem; (5) Agents of investigating law enforcement agencies; and (6) Other persons as determined by the court. (b) Protective order. - Any videotape or audiotape of a child that is part of the court record shall be under a protective order that provides as follows: (1) Tapes may be viewed only by parties, their counsel, their expert witness, and the guardian ad litem. (2) No tape, or any portion thereof, shall be divulged by any person mentioned in sub-section (a) to any other person, except as necessary for the trial. (3) No person shall be granted access to the tape, its transcription or any part thereof unless he signs a written affirmation that he has received and read a copy of the protective order; that he submits to the jurisdiction of the court with respect to the protective order; and that in case of violation thereof, he will be subject to the contempt power of the court.

55 (4) Each of the tape cassettes and transcripts thereof made available to the parties, their counsel, and respective agents shall bear the following cautionary notice: "This object or document and the contents thereof are subject to a protective order issued by the court in (case title) , (case number) . They shall not be examined, inspected, read, viewed, or copied by any person, or disclosed to any person, except as provided in the protective order. No additional copies of the tape or any of its portion shall be made, given, sold, or shown to any person without prior court order. Any person violating such protective order is subject to the contempt power of the court and other penalties prescribed by law." (5) No tape shall be given, loaned, sold, or shown to any person except as ordered by the court. (6) Within thirty (30) days from receipt, all copies of the tape and any transcripts thereof shall be returned to the clerk of court for safekeeping unless the period is extended by the court on motion of a party. (7) This protective order shall remain in full force and effect until further order of the court. (c) Additional protective orders. - The court may, motu proprio or on motion of any party, the child, his parents, legal guardian, or the guardian ad litem, issue additional orders to protect the privacy of the child. (d) Publication of identity contemptuous. - Whoever publishes or causes to be published in any format the name, address, telephone number, school, or other identifying information of a child who is or is alleged to be a victim or accused of a crime or a witness thereof, or an immediate family of the child shall be liable to the contempt power of the court. (e) Physical safety of child; exclusion of evidence. - A child has a right at any court proceeding not to testify regarding personal identifying information, including his name, address, telephone number, school, and other information that could endanger his physical safety or his family. The court may, however, require the child to testify regarding personal identifying information in the interest of justice. (f) Destruction of videotapes and audiotapes. - Any videotape or audiotape of a child produced under the provisions of this Rule or otherwise made part of the court record shall be destroyed after five (5) years have elapsed from the date of entry of judgment. (g) Records of youthful offender. - Where a youthful offender has been charged before any city or provincial prosecutor or before any municipal judge and the charges have been ordered dropped, all the records of the case shall be considered as privileged and may not be disclosed directly or indirectly to anyone for any purpose whatsoever.

56 Where a youthful offender has been charged and the court acquits him, or dismisses the case or commits him to an institution and subsequently releases him pursuant to Chapter 3 of P. D. No. 603, all the records of his case shall also be considered as privileged and may not be disclosed directly or indirectly to anyone except to determine if a defendant may have his sentence suspended under Article 192 of P. D. No. 603 or if he may be granted probation under the provisions of P. D. No. 968 or to enforce his civil liability, if said liability has been imposed in the criminal action. The youthful offender concerned shall not be held under any provision of law to be guilty of perjury or of concealment or misrepresentation by reason of his failure to acknowledge the case or recite any fact related thereto in response to any inquiry made to him for any purpose. "Records" within the meaning of this sub-section shall include those which may be in the files of the National Bureau of Investigation and with any police department or government agency which may have been involved in the case. (Art. 200, P. D. No. 603) Section 32. Applicability of ordinary rules. - The provisions of the Rules of Court on deposition, conditional examination of witnesses, and evidence shall be applied in a suppletory character. Section 33. Effectivity. - This Rule shall take effect on December 15, 2000 following its publication in two (2) newspapers of general circulation.