Johanna Marie B.

Bermudo

Evidence Midterm Case Republic of the Philippines SUPREME COURT Manila SECOND DIVISION G.R. No. 197299 February 13, 2013 OFFICE OF THE OMBUDSMAN, Petitioner, vs. RODRIGO V. MAPOY and DON EMMANUEL R. REGALARIO, Respondents. DECISION PER CURIAM: This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the Decision 1 dated February 7, 2011 and Resoluiton2 dated June 7, 2011 of the Court of Appeals (CA) in CA-G.R. SP No. 116179 which reversed and set aside the Review/Recommendation3 dated February 1, 2008 issued by the Office of Ombudsman finding respondents Rodrigo V. Mapoy (Mapoy) and Don Emmanuel R. Regalario (Regalario) guilty of grave misconduct and dishonesty, and imposing upon them the penalty of dismissal from the service with cancellation of eligibility, forfeiture of retirement benefits and perpetual disqualification for reemployment in the government service. The Antecedent Facts Mapoy and Regalario (respondents) are Special Investigators of the National Bureau of Investigation (NBI), assigned at the Criminal Intelligence Division (CRID).4 On August 26, 2003, they implemented a search warrant against Pocholo Matias (Matias), owner of Pocholo Matias Grain Center, at his warehouses located in Valenzuela City and were able to seize 250,000 sacks of imported rice. Matias was then charged with technical smuggling or violation of Section 3602 of the Tariff and Customs Code before the Office of the City Prosecutor of Valenzuela. The search warrant, however, was subsequently quashed for "lack of deputization by the Bureau of Customs."5 On October 8, 2003, respondents were arrested by the elements of the Counter Intelligence Special Unit of the National Capital Regional Police Office (CISU-NCRPO) during an entrapment operation conducted at the Century Park Hotel, Manila based on the complaint6 of Matias that the respondents extorted money from him in exchange for not filing any other criminal charges against him. The arresting officers recovered the P300,000.00 marked money from Regalario. 7 Thus, on October 20, 2003, the NBI, through its then Director, General Reynaldo G. Wycoco, filed a complaint8against respondents before the Office of the Ombudsman, docketed as OMB-CA-03-0499-K and OMB-CA-03-0559-L, for Dishonesty, Grave Misconduct and Corrupt Practices. In their position paper,9 respondents denied the charges against them and claimed that Matias sent them death threats and offered money for the settlement of his case. This led them to seek authority from the Chief of the CRID-Intelligence Services to conduct further investigation on the matter.10 Thus, when Matias called them up in the morning of October 8, 2003 reiterating his offered consideration, they formed a team to conduct a legitimate entrapment operation against him for corruption of public officials at the agreed place or the Century Park Hotel, Manila whereat Matias dropped a white envelope on their table and hurriedly left. They then followed him to effect his arrest but were prevented from doing so by the CISU-NCRPO operatives. The Ombudsman Ruling On February 1, 2008, Medwin S. Dizon, Graft Investigation and Prosecution Officer II, issued a Review/Recommendation,11 the dispositive portion of which states: WHEREFORE, foregoing considered, respondents Rodrigo V. Mapoy, Special Investigator IV and Don Emmanuel R. Regalario, Special Investigator III, both of the National Bureau of Investigation are hereby found guilty of Grave Misconduct and Dishonesty, and are hereby meted the penalty of DISMISSAL from the service with cancellation of eligibility, forfeiture of retirement benefits, and perpetual disqualification for re-employment in the government service pursuant to the Uniform Rules on Administrative Cases in the Civil Service. SO ORDERED. 12 It found substantial evidence to support the charges against respondents who were caught in possession of the marked money inside the hotel. It ruled that as between the claims of entrapment by the parties, the presumption of regularity in the performance of duty applies in favor of the CISU-NCRPO operatives whose acts were not impelled by ill-motives, and whose entrapment operation was well-planned and coordinated. It noted that even the serial numbers of the marked money were duly recorded by the bank. In contrast, the supposed entrapment operation by the respondents did not have the imprimatur of the NBI Director who even initiated the instant complaint against them. Not even the Deputy Director for Intelligence Service of the NBI supported respondents entrapment claim. Neither was the alleged presence of the other members of the NBI team, Jose Rommel G. Ramirez (Ramirez) and Mark III C. Maure (Maure), at the hotel on that fateful day sufficiently established. Nor did the Disposition Form relied upon by respondents disclose the purported entrapment operation against Matias. Moreover, the Investigating Officer noted that: (1) some inconsistencies in the statements of

LLB 3-A

Johanna Marie B. Bermudo LLB 3-A Evidence Midterm Case respondents and their witnesses tend to corroborate the claims of Matias; (2) respondents did not immediately reveal the supposed purpose of their presence at the crime scene; and (3) it took them one week after the incident to file their complaint against Matias for corruption of public officials.13 Thus, it was concluded that respondents defenses were mere afterthought resorted to in order to gain leverage against the charge of robbery/extortion.14 The foregoing resolution was approved by then Acting Ombudsman, Orlando C. Casimiro, on December 8, 2009.15 Respondents motion for reconsideration therefrom was denied in the Order16 dated September 2, 2010. Aggrieved, respondents filed a petition for review under Rule 43 of the Rules of Court before the CA. The CA Ruling In its assailed Decision,17 the CA reversed and set aside the findings of the Office of the Ombudsman based on the following grounds: (1) there was no evidence positively confirming the fact that respondents were not conducting a legitimate entrapment operation; (2) Matias had an axe to grind against respondents who raided his warehouses and caused the filing of a criminal case against him, thus, his motive is highly suspect; (3) it is unclear what really transpired at the Century Park Hotel, Manila on October 8, 2003 between the respondents, Matias and the arresting officers of the CISU-NCRPO. Consequently, applying the equipoise rule, the CA acquitted respondents of the crimes charged. The NBI thus sought reconsideration 18 while the Office of the Ombudsman filed an Omnibus Motion to Intervene and to Admit Attached Motion for Reconsideration of the Decision dated 07 February 2011 (Filed with Plea for Leave of Court). 19 On June 7, 2011, the CA issued a Resolution 20 where it noted the Office of the Ombudsmans Motion to Intervene and denied both motions for reconsideration. Issues Before the Court Hence, the instant petition filed by the Office of the Ombudsman based on the following ground: THE COURT OF APPEALS SERIOUSLY ERRED IN ISSUING THE ASSAILED DECISION DATED 07 FEBRUARY 2011, REVERSING THE OFFICE OF THE OMBUDSMANS REVIEW/RECOMMENDATION DATED 01 FEBRUARY 2008 WHICH FOUND THE RESPONDENTS GUILTY OF GRAVE MISCONDUCT AND DISHONESTY AND IMPOSED UPON THEM THE PENALTY OF DISMISSAL FROM THE SERVICE WITH CANCELLATION OF ELIGIBILITY, FORFEITURE OF RETIREMENT BENEFITS, AND PERPETUAL DISQUALIFICATION FOR REEMPLOYMENT IN THE GOVERNMENT SERVICE, CONSIDERING THAT: The findings of facts established by the Office of the Ombudsman in the Review/Recommendation dated 01 February 2008 are supported by substantial evidence, thus, conclusive upon the reviewing authority.21 The Courts Ruling The petition is meritorious. It is well-entrenched that in an administrative proceeding, the quantum of proof required for a finding of guilt is only substantial evidence or such relevant evidence as a reasonable mind might accept as adequate to support a conclusion and not proof beyond reasonable doubt which requires moral certainty to justify affirmative findings. 22 In this case, the Court finds substantial evidence to support the charges against respondents for grave misconduct and dishonesty. Records show that Matias sought the help of the police to entrap respondents who were illegally soliciting money from him. Hence, the CISU-NCRPO planned an entrapment operation which took place at the Century Park Hotel, Manila on October 8, 2003. Prior to the entrapment, Matias withdrew P300,000.00 from his bank,23 which, in turn, recorded the serial numbers of the bills released. 24 During the entrapment, Mapoy received the white envelope containing P300,000.00 marked money from Matias and handed it over to Regalario from whom it was subsequently recovered. After their arrest, respondents were brought to the police station for investigation 25 and subsequently charged of the crime of robbery/extortion. To a reasonable mind, the foregoing circumstances are more than adequate to support the conclusion that respondents extorted money from Matias which complained act amounts to grave misconduct or such corrupt conduct inspired by an intention to violate the law, or constituting flagrant disregard of well-known legal rules.26 Similarly, respondents have been dishonest in accepting money from Matias. Dishonesty has been held to include the disposition to lie, cheat, deceive or defraud, untrustworthiness, lack of integrity, lack of honesty, probity or integrity in principle, lack of fairness and straightforwardness, among others.27 Hence, their dismissal from the service with all its accessory penalties was in order.1wphi1 The Court cannot subscribe to the theory of respondents that they were at the Century Park Hotel, Manila on that fateful day to entrap Matias for the crime of corruption of public officers. As correctly found by the Ombudsman, nothing was mentioned in the Disposition Form28 relied upon by respondents with respect to their planned entrapment of Matias.29 It was only a request to conduct further investigation which was not even shown to have been approved. Moreover, the respondents' act of letting Matias leave the table after handing the money to them30 is inconsistent with their purported intent to arrest him for the crime of corruption of public officers. No law ot1icer would let an offender walk away from him. Furthermore, as aptly observed by the Ombudsman, the presence of respondents' witnesses, Ramirez and Maure, at the hotel was not sufficiently established,31 and no justification was offered to explain their failure to come to the aid of respondents when the latter were being arrested.

Johanna Marie B. Bermudo LLB 3-A Evidence Midterm Case All told, the inculpatory evidence herein point to only one thing: respondents are guilty as charged. Consequently, the CA committed reversible error in applying the equipoise rule 32 in resolving respondents' appeal. WHEREFORE, premises considered, the instant petition is GRANTED. The February 7, 2011 Decision and June 7, 2011 Resolution of the Court of Appeals in CA-G.R. SP No. 116179 are hereby REVERSED and SET ASIDE.The Review/Recommendation dated February I, 2008 of the Office of the Ombudsman is REINSTATED. SO ORDERED. ANTONIO T. CARPIO Associate Justice Chairperson ARTURO D. BRION Associate Justice JOSE PORTUGAL PEREZ Associate Justice MARIANO C. DEL CASTILLO Associate Justice ESTELA M. PERLAS-BERNABE Associate Justice

ATTESTATION I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. ANTONIO T. CARPIO Associate Justice Chairperson, Second Division CERTTIFICATION Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. MARIA LOURDES P. A. SERENO Chief Justice

Footnotes 1 Rollo. pp 44-56. Penned by Associate Justice Danton Q. Bueser, with Associate Justices Noel G. Tijam and Marlene Gonzales-Sison, concurring. 2 Id at 58-59 3 Id at 174-182. 4 Id. at 144. 5 Id. at 45. 6 Id. at 131-132. 7 Id. at 135. 8 Id. at 115-116. 9 Id. at 165-173. 10 Id. at 198. Disposition Form. 11 Id. at 174-182. 12 Id. at 180-181. 13 Id. at 177-180. 14 Id. at 180. 15 Id. at 181. 16 Id. at 183-187. 17 Id. at 44-56. 18 Id. at 188-196. 19 Id. at 61-88. 20 Id. at 58-59. 21 Id. at 25-26. 22 Miro v. Dosono, G.R. No. 170697, April 30, 2010, 619 SCRA 653, 660; Commission on Audit, Regional Office No. 13, Butuan City v. Hinampas, G.R. No. 158672, August 7, 2007, 529 SCRA 245, 260. 23 Rollo, p. 137. 24 Id. at 138.

Johanna Marie B. Bermudo

LLB 3-A

Evidence Midterm Case Republic of the Philippines SUPREME COURT Manila FIRST DIVISION

G.R. No. 190475

April 10, 2013

JAIME ONG y ONG, Petitioner, vs. PEOPLE OF THE PHILIPPINES, Respondent. DECISION SERENO, CJ.: Before the Court is an appeal from the Decision1 dated 18 August 2009 of the Court of Appeals (CA), which affirmed the Decision2 dated 06 January 2006 of the Regional Trial Court (RTC), Branch 37, Manila. The RTC had convicted accused Jaime Ong y Ong (Ong) of the crime of violation of Presidential Decree No. (P.O.) 1612, otherwise known as. the AntiFencing Law. Ong was charged in an Information3 dated 25 May 1995 as follows: That on or about February 17, 1995, in the City of Manila, Philippines. the said accused, with intent of gain for himself or for another. did then and there willfully, unlawfully and feloniously receive and acquire from unknown person involving thirteen (13) truck tires worth P65, 975.00, belonging to FRANCISCO AZAJAR Y LEE, and thereafter selling One (1) truck tire knowing the same to have been derived from the crime of robbery. CONTRARY TO LAW. Upon arraignment, Ong entered a plea of "not guilty." Trial on the merits ensued, and the RTC found him guilty beyond reasonable doubt of violation of P.D. 1612. The dispositive portion of its Decision reads: WHEREFORE, premises considered, this Court finds that the prosecution has established the guilt of the accused JAIME ONG y ONG beyond reasonable doubt for violation of Presidential Decree No. 1612 also known as Anti-Fencing Law and is hereby sentenced to suffer the penalty of imprisonment of 10 years and 1 day to 16 years with accessory penalty of temporary disqualification. SO ORDERED.4 Dissatisfied with the judgment, Ong appealed to the CA. After a review of the records, the RTCs finding of guilt was affirmed by the appellate court in a Decision dated 18 August 2009. Ong then filed the instant appeal before this Court. The Facts The version of the prosecution, which was supported by the CA, is as follows: Private complainant was the owner of forty-four (44) Firestone truck tires, described as T494 1100 by 20 by 14. He acquired the same for the total amount of P223,401.81 from Philtread Tire and Rubber Corporation, a domestic corporation engaged in the manufacturing and marketing of Firestone tires. Private complainant's acquisition was evidenced by Sales Invoice No. 4565 dated November 10, 1994 and an Inventory List acknowledging receipt of the tires specifically described by their serial numbers. Private complainant marked the tires using a piece of chalk before storing them inside the warehouse in 720 San Jose St., corner Sta. Catalina St., Barangay San Antonio Valley 1, Sucat, Paraaque, owned by his relative Teody Guano. Jose Cabal, Guano's caretaker of the warehouse, was in charge of the tires. After appellant sold six (6) tires sometime in January 1995, thirty-eight (38) tires remained inside the warehouse.

Johanna Marie B. Bermudo LLB 3-A Evidence Midterm Case On February 17, 1995, private complainant learned from caretaker Jose Cabal that all thirty-eight (38) truck tires were stolen from the warehouse, the gate of which was forcibly opened. Private complainant, together with caretaker Cabal, reported the robbery to the Southern Police District at Fort Bonifacio. Pending the police investigation, private complainant canvassed from numerous business establishments in an attempt to locate the stolen tires. On February 24, 1995, private complainant chanced upon Jong's Marketing, a store selling tires in Paco, Manila, owned and operated by appellant. Private complainant inquired if appellant was selling any Model T494 1100 by 20 by 14 ply Firestone tires, to which the latter replied in the affirmative. Appellant brought out a tire fitting the description, which private complainant recognized as one of the tires stolen from his warehouse, based on the chalk marking and the serial number thereon. Private complainant asked appellant if he had any more of such tires in stock, which was again answered in the affirmative. Private complainant then left the store and reported the matter to Chief Inspector Mariano Fegarido of the Southern Police District. On February 27, 1995, the Southern Police District formed a team to conduct a buy-bust operation on appellant's store in Paco, Manila. The team was composed of six (6) members, led by SPO3 Oscar Guerrero and supervised by Senior Inspector Noel Tan. Private complainant's companion Tito Atienza was appointed as the poseur-buyer. On that same day of February 27, 1995, the buy-bust team, in coordination with the Western Police District, proceeded to appellant's store in Paco, Manila. The team arrived thereat at around 3:00 in the afternoon. Poseur-buyer Tito Atienza proceeded to the store while the rest of the team posted themselves across the street. Atienza asked appellant if he had any T494 1100 by 20 by 14 Firestone truck tires available. The latter immediately produced one tire from his display, which Atienza bought for P5,000.00. Atienza asked appellant if he had any more in stock. Appellant then instructed his helpers to bring out twelve (12) more tires from his warehouse, which was located beside his store. After the twelve (12) truck tires were brought in, private complainant entered the store, inspected them and found that they were the same tires which were stolen from him, based on their serial numbers. Private complainant then gave the prearranged signal to the buy-bust team confirming that the tires in appellant's shop were the same tires stolen from the warehouse. After seeing private complainant give the pre-arranged signal, the buy-bust team went inside appellant's store. However, appellant insisted that his arrest and the confiscation of the stolen truck tires be witnessed by representatives from the barangay and his own lawyer. Resultantly, it was already past 10:00 in the evening when appellant, together with the tires, was brought to the police station for investigation and inventory. Overall, the buy-bust team was able to confiscate thirteen (13) tires, including the one initially bought by poseur-buyer Tito Atienza. The tires were confirmed by private complainant as stolen from his warehouse.5 For his part, accused Ong solely testified in his defense, alleging that he had been engaged in the business of buying and selling tires for twenty-four (24) years and denying that he had any knowledge that he was selling stolen tires in Jong Marketing. He further averred that on 18 February 1995, a certain Ramon Go (Go) offered to sell thirteen (13) Firestone truck tires allegedly from Dagat-dagatan, Caloocan City, for P3,500 each. Ong bought all the tires for P45,500, for which he was issued a Sales Invoice dated 18 February 1995 and with the letterhead Gold Link Hardware & General Merchandise (Gold Link).6 Ong displayed one (1) of the tires in his store and kept all the twelve (12) others in his bodega. The poseur-buyer bought the displayed tire in his store and came back to ask for more tires. Ten minutes later, policemen went inside the store, confiscated the tires, arrested Ong and told him that those items were stolen tires.7 The RTC found that the prosecution had sufficiently established that all thirteen (13) tires found in the possession of Ong constituted a prima facie evidence of fencing. Having failed to overcome the presumption by mere denials, he was found guilty beyond reasonable doubt of violation of P.D. 1612.8 On appeal, the CA affirmed the RTCs findings with modification by reducing the minimum penalty from ten (1 0) years and one (1) day to six (6) years of prision correcional.9 OUR RULING The Petition has no merit. Fencing is defined in Section 2(a) of P.D. 1612 as the "act of any person who, with intent to gain for himself or for another, shall buy, receive, possess, keep, acquire, conceal, sell or dispose of, or shall buy and sell, or in any manner deal in any

Johanna Marie B. Bermudo LLB 3-A Evidence Midterm Case article, item, object or anything of value which he knows, or should be known to him, to have been derived from the proceeds of the crime of robbery or theft." The essential elements of the crime of fencing are as follows: (1) a crime of robbery or theft has been committed; (2) the accused, who is not a principal or on accomplice in the commission of the crime of robbery or theft, buys, receives, possesses, keeps, acquires, conceals, sells or disposes, or buys and sells, or in any manner deals in any article, item, object or anything of value, which has been derived from the proceeds of the crime of robbery or theft; (3) the accused knew or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft; and (4) there is, on the part of one accused, intent to gain for oneself or for another. 10 We agree with the RTC and the CA that the prosecution has met the requisite quantum of evidence in proving that all the elements of fencing are present in this case. First, the owner of the tires, private complainant Francisco Azajar (Azajar), whose testimony was corroborated by Jose Cabal - the caretaker of the warehouse where the thirty-eight (38) tires were stolen testified that the crime of robbery had been committed on 17 February 1995. Azajar was able to prove ownership of the tires through Sales Invoice No. 456511 dated 10 November 1994 and an Inventory List.12 Witnesses for the prosecution likewise testified that robbery was reported as evidenced by their Sinumpaang Salaysay13 taken at the Southern Police District at Fort Bonifacio.14 The report led to the conduct of a buy-bust operation at Jong Markerting, Paco, Manila on 27 February 1995. Second, although there was no evidence to link Ong as the perpetrator of the robbery, he never denied the fact that thirteen (13) tires of Azajar were caught in his possession. The facts do not establish that Ong was neither a principal nor an accomplice in the crime of robbery, but thirteen (13) out of thirty-eight (38) missing tires were found in his possession. This Court finds that the serial numbers of stolen tires corresponds to those found in Ongs possession. 15 Ong likewise admitted that he bought the said tires from Go of Gold Link in the total amount of 45,500 where he was issued Sales Invoice No. 980.16 Third, the accused knew or should have known that the said article, item, object or anything of value has been derived from the proceeds of the crime of robbery or theft. The words "should know" denote the fact that a person of reasonable prudence and intelligence would ascertain the fact in performance of his duty to another or would govern his conduct upon assumption that such fact exists.17 Ong, who was in the business of buy and sell of tires for the past twenty-four (24) years,18 ought to have known the ordinary course of business in purchasing from an unknown seller. Admittedly, Go approached Ong and offered to sell the thirteen (13) tires and he did not even ask for proof of ownership of the tires. 19 The entire transaction, from the proposal to buy until the delivery of tires happened in just one day.20 His experience from the business should have given him doubt as to the legitimate ownership of the tires considering that it was his first time to transact with Go and the manner it was sold is as if Go was just peddling the thirteen (13) tires in the streets. In Dela Torre v. COMELEC,21 this Court had enunciated that: Circumstances normally exist to forewarn, for instance, a reasonably vigilant buyer that the object of the sale may have been derived from the proceeds of robbery or theft. Such circumstances include the time and place of the sale, both of which may not be in accord with the usual practices of commerce. The nature and condition of the goods sold, and the fact that the seller is not regularly engaged in the business of selling goods may likewise suggest the illegality of their source, and therefore should caution the buyer. This justifies the presumption found in Section 5 of P.D. No. 1612 that "mere possession of any goods, . . ., object or anything of value which has been the subject of robbery or thievery shall be prima facie evidence of fencing" a presumption that is, according to the Court, "reasonable for no other natural or logical inference can arise from the established fact of . . . possession of the proceeds of the crime of robbery or theft." xxx.22 Moreover, Ong knew the requirement of the law in selling second hand tires.1wphi1 Section 6 of P.D. 1612 requires stores, establishments or entities dealing in the buying and selling of any good, article, item, object or anything else of value obtained from an unlicensed dealer or supplier thereof to secure the necessary clearance or permit from the station commander of the Integrated National Police in the town or city where that store, establishment or entity is located before offering the item for sale to the public. In fact, Ong has practiced the procedure of obtaining clearances from the police station for some used tires he wanted to resell but, in this particular transaction, he was remiss in his duty as a diligent businessman who should have exercised prudence. In his defense, Ong argued that he relied on the receipt issued to him by Go.1wphi1 Logically, and for all practical purposes, the issuance of a sales invoice or receipt is proof of a legitimate transaction and may be raised as a defense in the charge of fencing; however, that defense is disputable.23 In this case, the validity of the issuance of the receipt was disputed, and the prosecution was able to prove that Gold Link and its address were fictitious.24Ong failed to overcome the

Johanna Marie B. Bermudo LLB 3-A Evidence Midterm Case evidence presented by the prosecution and to prove the legitimacy of the transaction. Thus, he was unable to rebut the prima facie presumption under Section 5 of P.D. 1612. Finally, there was evident intent to gain for himself, considering that during the buy-bust operation, Ong was actually caught selling the stolen tires in his store, Jong Marketing. Fencing is malum prohibitum, and P.D. 1612 creates a prima fqcie presumption of fencing from evidence of possession by the accused of any good, article, item, object or anything of value, which has been the subject of robbery or theft; and prescribes a higher penalty based on the value of the 25 property. The RTC and the CA correctly computed the imposable penalty based on P5,075 for each tire recovered, or in the total amount of P65,975. Records show that Azajar had purchased forty-four (44) tires from Philtread in the total amount of P223,40 1.81.26 Section 3 (p) of Rule 131 of the Revised Rules of Court provides a disputable presumption that private transactions have been fair and regular. Thus, the presumption of regularity in the ordinary course of business is not overturned in the absence of the evidence challenging the regularity of the transaction between Azajar ,and Phil tread. In tine, after a careful perusal of the records and the evidence adduced by the parties, we do not find sufficient basis to reverse the ruling of the CA affirming the trial court's conviction of Ong for violation of P.D. 1612 and modifying the minimum penalty imposed by reducing it to six ( 6) years of prision correccional. WHEREFORE, premises considered, the Petition is DENIED for lack of merit. Accordingly, the assailed Decision of the Court of Appeals in CA-G.R. CR No. 30213 is hereby AFFIRMED. SO ORDERED. MARIA LOURDES P. A. SERENO Chief Justice WE CONCUR: TERESITA J. LEONARDO-DE CASTRO Associate Justice LUCAS P. BERSAMIN Associate Justice BIENVENIDO L. REYES Associate Justice CERTIFIC ATI ON Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. MARIA LOURDES P. A. SERENO Chief Justice MARTIN S. VILLARAMA, JR. Associate Justice

Footnotes CA Decision in CA-G.R. CR No. 30213 penned by Associate Justice Ramon R. Garcia and concurred in by Associate Justices Portia Alino-Hormachuelos and Fernanda Lampas Peralta; rollo. pp. 41-58.
1 2

RTC Decision in Criminal Case No. 143578 penned by Judge Vicente A. Hidalgo. id. at 32-40. Information dated 25 May 1995. id. at 31.

Johanna Marie B. Bermudo 4 Id. at 40.

5

LLB 3-A

Evidence Midterm Case

Id at. 43-46. Id. at 46. Id. Id. at 47. Id. at 57.

Capili v. Court of Appeals, 392 Phil. 577, 592 (2000); Tan v. People, 372 Phil. 93, 102-103 (1999) citing DizonPamintuan v. People, G.R. No. 111426, 11 July 1994, 234 SCRA 63, 71-72.
10 11

Exhibit "A", records p. 250. Exhibit "A-1" and "A-2", id at. 251. Sinumpaang Salaysay dated 20 February 1995, Exhibit "G and "I", id. at 263, 266. TSN 23 November 1995, pp. 22-26. Exhibits "A-1" and "A-2" vis--vis Exhibits "N-1" and "N-6." Records. pp. 251 and 272. Exhibit "2-A", id. at 316. Tan v. People, supra at 106. TSN 14 December 2004, p. 3. TSN 28 April 2005, p.6. Id. at 4. 327 Phil 1144 (1996). Id. at 1154 1155. D.M. Consunji, Inc. v. Esguerra, 328 Phil. 1168, 1181 (1996). TSN 21 June 2001, pp. 3-9; Exhibit "M," records, p. 270. Dizon-Pamintuan v. People, supra at 72. Supra note 6.

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Johanna Marie B. Bermudo

LLB 3-A

Evidence Midterm Case

Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 188956 March 20, 2013

ARMED FORCES OF THE PHILIPPINES RETIREMENT AND SEPARATION BENEFITS SYSTEM, Petitioner, vs. REPUBLIC OF THE PHILIPPINES, Respondent. DECISION VILLARAMA, JR., J.: Before us is a petition for review on certiorari under Rule 45 assailing the Orders dated February 17, 20091 and July 9, 20092 of the Regional Trial Court (RTC) of Pasig City, Branch 68, in Land Registration Case No. N-11517. The first Order reconsidered and recalled the Decision 3 of the RTC dated April 21, 2008, which granted the- application for land registration of petitioner Armed Forces of the Philippines Retirement and Separation Benefits System. The second Order denied the Motion for Reconsideration filed by the petitioner. Petitioner was "created under Presidential Decree (P.D.) No. 361,4 as amended, and was designed to establish a separate fund to guarantee continuous financial support to the Armed Forces of the Philippines military retirement system as provided for in Republic Act No. 340."5 Petitioner filed an Application for Registration of Title6 over three parcels of land located in West Bicutan, Taguig City, before the RTC of Pasig City. The said application was later docketed as LRC Case No. N-11517 and raffled to Branch 68 of the court a quo. These three parcels of land constitute a land grant by virtue of Presidential Proclamation No. 1218, issued by former President Fidel V. Ramos on May 8, 1998.7 The application was filed by Mr. Honorio S. Azcueta (Mr. Azcueta), the then Executive Vice President and Chief Operating Officer of the petitioner, who was duly authorized to do so by the Board of Trustees of the petitioner, as evidenced by a notarized Secretarys Certificate8 dated August 18, 2003. After due posting and publication of the requisite notices, and since no oppositor registered any oppositions after the petitioner met the jurisdictional requirements, the court a quo issued an order of general default against the whole world, and the petitioner was allowed to present evidence ex-parte.9 The petitioner then presented as its witness, Ms. Alma P. Aban (Ms. Aban), its Vice President and Head of its Asset Enhancement Office. She testified, inter alia, that: among her main duties is to ensure that the properties and assets of petitioner, especially real property, are legally titled and freed of liens and encumbrances; the subject properties were acquired by the petitioner through a land grant under Presidential Proclamation No. 1218; prior to Presidential Proclamation No. 1218, the Republic of the Philippines was in open, continuous, exclusive, notorious, and peaceful possession and occupation of the subject properties in the concept of an owner to the exclusion of the world since time immemorial; petitioner, after the Republic of the Philippines transferred ownership of the subject properties to it, assumed open, continuous, exclusive, notorious, and peaceful possession and occupation, and exercised control over them in the concept of owner, and likewise assumed the obligations of an owner; petitioner has been paying the real estate taxes on the subject properties; and the subject properties are not mortgaged, encumbered, or tenanted. 10 Subsequently, petitioner submitted its Formal Offer of Evidence,11 following which, the court a quo granted the application in a Decision dated April 21, 2008. The dispositive portion of the said decision reads:

Johanna Marie B. Bermudo LLB 3-A Evidence Midterm Case WHEREFORE, finding the Petition meritorious, the Court DECLARES, CONFIRMS AND ORDERS the registration of AFPRSBS title thereto. As soon as this Decision shall have become final and after payment of the required fees, let the corresponding Decree be issued in the name of Armed Forces of the Philippines Retirement and Separation Benefits System. Let copies of this Decision be furnished the Office of the Solicitor General, Land Registration Authority, Land Management Bureau and the Registry of Deeds, Taguig City, Metro Manila. SO ORDERED.12 In response, the Office of the Solicitor General (OSG) filed a Motion for Reconsideration 13 dated May 12, 2008, wherein it argued that the petitioner failed to prove that it has personality to own property in its name and the petitioner failed to show that the witness it presented was duly authorized to appear for and in its behalf. On June 2, 2008, petitioner filed its Comment/Opposition.14 On February 17, 2009, the court a quo issued the assailed Order granting the Motion for Reconsideration of the OSG on the ground that the petitioner failed to prosecute its case. The dispositive portion of the assailed Order reads: WHEREFORE, premises considered, the OSGs motion for reconsideration is GRANTED. The Courts Decision of April 21, 2008 is hereby RECONSIDERED and RECALLED, and a new one issued DISMISSING this Application for Registration of Title for failure to prosecute. SO ORDERED.15 The Motion for Reconsideration16 of petitioner was denied by the court a quo in the other assailed Order 17 dated July 9, 2009. Hence, this petition. The issue to be resolved in the present case is whether the court a quo acted contrary to law and jurisprudence when it dismissed petitioners application for land registration on the ground that petitioner failed to prosecute the subject case. We answer in the affirmative. The reason of the court a quo in dismissing petitioners application for land registration on the ground of failure to prosec ute was the lack of authority on the part of Ms. Aban to testify on behalf of the petitioner. However, Section 3, Rule 17 of the 1997 Rules of Civil Procedure, as amended, provides only three instances wherein the Court may dismiss a case for failure to prosecute: Sec. 3. Dismissal due to fault of plaintiff.If, for no justifiable cause, the plaintiff fails to appear on the date of the presentation of his evidence in chief on the complaint, or to prosecute his action for an unreasonable length of time, or to comply with these Rules or any order of the court, the complaint may be dismissed upon motion of the defendant or upon the courts own motion, without prejudice to the right of the defendant to prosecute his counterclaim in the same or in a separate action. This dismissal shall have the effect of an adjudication upon the merits, unless otherwise declared by the court. Jurisprudence has elucidated on this matter in De Knecht v. CA:18 An action may be dismissed for failure to prosecute in any of the following instances: (1) if the plaintiff fails to appear at the time of trial; or (2) if he fails to prosecute the action for an unreasonable length of time; or (3) if he fails to comply with the Rules of Court or any order of the court. Once a case is dismissed for failure to prosecute, this has the effect of an adjudication on the merits and is understood to be with prejudice to the filing of another action unless otherwise provided in the order of dismissal. In other words, unless there be a qualification in the order of dismissal that it is without prejudice, the dismissal should be regarded as an adjudication on the merits and is with prejudice. (Emphasis supplied.) Clearly, the court a quos basis for pronouncing that the petitioner failed to prosecute its case is not among those grounds provided by the Rules. It had no reason to conclude that the petitioner failed to prosecute its case. First, the petitioner did not fail to appear at the time of the trial. In fact, the Decision of the RTC dated April 21, 2008 ordering the registration of

Johanna Marie B. Bermudo LLB 3-A Evidence Midterm Case petitioners title to the subject lots shows that the petitioner appeared before the Court and was represented by counsel. Records would also reveal that the petitioner was able to present its evidence, and as a result, the RTC rendered judgment in its favor. Second, the petitioner did not fail to prosecute the subject case considering that it appeared during trial, presented Ms. Aban, who gave competent testimony as regards the titling of the subject lots, and the court a quo never held petitioner liable for any delay in prosecuting the subject case. Third, a perusal of the records would demonstrate that the petitioner did not fail to comply with the Rules or any order of the court a quo, as there is no ruling on the part of the latter to this effect. Indeed, there was no basis for the court a quos ruling that the petitioner failed to prosecute the subject case, because none of the grounds provided in the Rules for dismissing a case due to failure to prosecute is present. That the RTC dismissed the application for land registration of the petitioner for failure to prosecute after the petitioner presented all its evidence and after said court has rendered a decision in its favor, is highly irregular. At this juncture, it would be appropriate to discuss the basis of the court a quo in dismissing the petitioners application for land registration for failure to prosecute the alleged lack of authority of the witness, Ms. Aban, to testify on behalf of the petitioner. The assailed Order held as follows: With things now stand, the Court believes that OSG was correct in observing that indeed the AFPRSBS did not present its duly authorized representative to prosecute this case. And the records support the observation since AFPRSBS presented only one witness Mrs. Aban. In view of the foregoing the Court is left without choice than to grant OSGs motion for reconsideration.19 However, there is no substantive or procedural rule which requires a witness for a party to present some form of authorization to testify as a witness for the party presenting him or her. No law or jurisprudence would support the conclusion that such omission can be considered as a failure to prosecute on the part of the party presenting such witness. All that the Rules require of a witness is that the witness possesses all the qualifications and none of the disqualifications provided therein. Rule 130 of the Rules on Evidence provides: SEC. 20. Witnesses; their qualifications.Except as provided in the next succeeding section, all persons who can perceive, and perceiving, can make known their perception to others, may be witnesses. xxxx Cavili v. Judge Florendo20 speaks of the disqualifications: Sections 19 and 20 of Rule 130 provide for specific disqualifications.1wphi1 Section 19 disqualifies those who are mentally incapacitated and children whose tender age or immaturity renders them incapable of being witnesses. Section 20 provides for disqualification based on conflicts of interest or on relationship. Section 21 provides for disqualifications based on privileged communications. Section 15 of Rule 132 may not be a rule on disqualification of witnesses but it states the grounds when a witness may be impeached by the party against whom he was called. x x x The specific enumeration of disqualified witnesses excludes the operation of causes of disability other than those mentioned in the Rules. It is a maxim of recognized utility and merit in the construction of statutes that an express exception, exemption, or saving clause excludes other exceptions. (In Re Estate of Enriquez, 29 Phil. 167) As a general rule, where there are express exceptions these comprise the only limitations on the operation of a statute and no other exception will be implied. (Sutherland on Statutory Construction, Fourth Edition, Vol. 2A, p. 90) The Rules should not be interpreted to include an exception not embodied therein. (Emphasis supplied.) A reading of the pertinent law and jurisprudence would show that Ms. Aban is qualified to testify as a witness for the petitioner since she possesses the qualifications of being able to perceive and being able to make her perceptions known to others. Furthermore, she possesses none of the disqualifications described above. The RTC clearly erred in ordering the dismissal of the subject application for land registration for failure to prosecute because petitioners witness did not possess an authorization to testify on behalf of petitioner. The court a quo also erred when it concluded that the subject case was not prosecuted by a duly authorized representative of the petitioner. The OSG

Johanna Marie B. Bermudo LLB 3-A Evidence Midterm Case and the court a quo did not question the Verification/Certification 21 of the application, and neither did they question the authority of Mr. Azcueta to file the subject application on behalf of the petitioner. Case records would reveal that the application was signed and filed by Mr. Azcueta in his capacity as the Executive Vice President and Chief Operating Officer of the petitioner, as authorized by petitioners Board of Trustees.22 The authority of Mr. Azcueta to file the subject application was established by a Secretarys Certificate23 attached to the said application. The asseveration that the subject case was not prosecuted by a duly authorized representative of the petitioner is thus unfounded. Interestingly enough, the respondent itself agrees with the petitioner that the dismissal of the subject application by the court a quo on the ground of failure to prosecute due to lack of authority of the sole witness of the petitioner is unfounded and without legal basis.24 WHEREFORE, the petition for review on certiorari is GRANTED. The Orders of the Regional Trial Court dated February 17, 2009 and July 9, 2009 are REVERSED AND SET ASIDE. The Decision of the Regional Trial Court dated April 21, 2008, granting the Application for Registration of Title of the petitioner is hereby REINSTATED and UPHELD. No pronouncement as to costs. SO ORDERED. MARTIN S. VILLARAMA, JR. Associate Justice WE CONCUR: MARIA LOURDES P. A. SERENO Chief Justice Chairperson TERESITA J. LEONARDO-DE CASTRO Associate Justice BIENVENIDO L. REYES Associate Justice CERTIFIC ATI ON Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division. MARIA LOURDES P. A. SERENO Chief Justice LUCAS P. BERSAMIN Associate Justice

Footnotes
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Rollo, pp. 47-48. Penned by Judge Santiago G. Estrella. Id. at 49-50. Id. at 40-46. PROVIDING FOR AN ARMED FORCES RETIREMENT AND SEPARATION BENEFIT SYSTEM. Rollo, p. 13, citing Ramiscal, Jr. v. Han. Sandiganbayan, 487 Phil. 384, 390 (2004). Records, pp. 1-4. The application was dated September 29, 2003.

Johanna Marie B. Bermudo LLB 3-A 7 Rollo, pp. 17 and 56-58.

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Evidence Midterm Case

Records, p. 25. Rollo, p. 44. TSN, March 30, 2006 pp. 1-10; records, pp. 204-213. Records, pp. 188-191. Rollo, pp. 45-46. Id. at 65-68. Id. at 70-75. Id. at 48. Id. at 76-85. Supra note 2. 352 Phil. 833, 849 (1998). Rollo, p. 48. 238 Phil. 597, 602-603 (1987). Records, p. 4. Id. at 3, 25. Supra note 8. Rollo, p. 111.

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