Professional Documents
Culture Documents
Prof. Avena
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Prof. Avena
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Prof. Avena
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Entries in the course of business. Entries made at, or near the time of
the transactions to which they refer, by a person deceased, outside of the
Philippines or unable to testify, who was in a position to know the facts
therein stated, may be received as prima facie evidence, if such person
made the entries in his professional capacity or in the performance of
duty and in the ordinary or regular course of business or duty.[15]
The admission in evidence of entries in corporate books requires
the satisfaction of the following conditions:
1. The person who made the entry must be dead, outside the
country or unable to testify;
2. The entries were made at or near the time of the transactions to
which they refer;
3. The entrant was in a position to know the facts stated in the
entries;
4. The entries were made in his professional capacity or in the
performance of a duty, whether legal, contractual, moral or religious;
and
5. The entries were made in the ordinary or regular course of
business or duty.[16]
As petitioner points out, the business entries in question (Exh. K) do
not meet the first and third requisites. Dolores Aday, who made the
entries, was presented by private respondent to testify on the account of
RDC Construction. It was in the course of her testimony that the entries
were presented and marked in evidence. There was, therefore, neither
justification nor necessity for the presentation of the entries as the
person who made them was available to testify in court.
Necessity is given as a ground for admitting entries, in that they are the
best available evidence. Said a learned judge: What a man has actually
done and committed to writing when under obligation to do the act, it
Prof. Avena
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Prof. Avena
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Prof. Avena
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Prof. Avena
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[18]
[2]
[3]
[4]
Records-RTC, p. 53.
[5]
Records-RTC, p. 54.
[6]
[7]
[8]
[9]
[10]
RTC-Decision, p. 3.
[11]
Id., at 4.
[12]
Id., at 6-7.
[13]
[14]
[15]
[16]
[20]
[21]
[22]
[23]
[24]
Supra, at 349.
[25]
[26]
RTC Decision, p. 5.
Prof. Avena
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With the use of his Mastercard, Aznar purchased plane tickets to Kuala
Lumpur for his group worth P237,000.00. On July 17, 1994, Aznar, his
wife and grandchildren left Cebu for the said destination.4
Aznar claims that when he presented his Mastercard in some
establishments in Malaysia, Singapore and Indonesia, the same was not
honored.5 And when he tried to use the same in Ingtan Tour and Travel
Agency (Ingtan Agency) in Indonesia to purchase plane tickets to Bali, it
was again dishonored for the reason that his card was blacklisted by
Citibank. Such dishonor forced him to buy the tickets in cash.6 He further
claims that his humiliation caused by the denial of his card was
aggravated when Ingtan Agency spoke of swindlers trying to use
blacklisted cards.7 Aznar and his group returned to the Philippines on
August 10, 1994.8
On August 26, 1994, Aznar filed a complaint for damages against
Citibank, docketed as Civil Case No. CEB-16474 and raffled to RTC
Branch 20, Cebu City, claiming that Citibank fraudulently or with gross
negligence blacklisted his Mastercard which forced him, his wife and
grandchildren to abort important tour destinations and prevented them
from buying certain items in their tour.9 He further claimed that he
suffered mental anguish, serious anxiety, wounded feelings, besmirched
reputation and social humiliation due to the wrongful blacklisting of his
card.10 To prove that Citibank blacklisted his Mastercard, Aznar
presented a computer print-out, denominated as ON-LINE
AUTHORIZATIONS FOREIGN ACCOUNT ACTIVITY REPORT, issued to
him by Ingtan Agency (Exh. "G") with the signature of one Victrina
Elnado Nubi (Nubi)11 which shows that his card in question was "DECL
OVERLIMIT" or declared over the limit.12
Citibank denied the allegation that it blacklisted Aznars card. It also
contended that under the terms and conditions governing the issuance
and use of its credit cards, Citibank is exempt from any liability for the
dishonor of its cards by any merchant affiliate, and that its liability for
Prof. Avena
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Prof. Avena
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Prof. Avena
fact; the issue of dishonor on the ground that the card was declared over
the limit was also never tried with the implied consent of both parties;
Aznars self-serving testimony is not sufficient to prove the integrity and
reliability of Exh. "G"; Aznar did not declare that it was Nubi who printed
the document and that said document was printed in his presence as he
merely said that the print-out was provided him; there is also no
annotation on Exh. "G" to establish that it was Nubi who printed the
same; assuming further that Exh. "G" is admissible and Aznars credit
card was dishonored, Citibank still cannot be held liable for damages as
it only shows that Aznars credit card was dishonored for having been
declared over the limit; Aznars cause of action against Citibank hinged
on the alleged blacklisting of his card which purportedly caused its
dishonor; dishonor alone, however, is not sufficient to award Aznar
damages as he must prove that the dishonor was caused by a grossly
negligent act of Citibank; the award of damages in favor of Aznar was
based on Article 117034 of the Civil Code, i.e., there was fraud, negligence
or delay in the performance of its obligation; there was no proof,
however that Citibank committed fraud or delay or that it contravened
its obligations towards Aznar; the terms and conditions of the credit
card cannot be considered as a contract of adhesion since Aznar was
entirely free to reject the card if he did not want the conditions
stipulated therein; a person whose stature is such that he is expected to
be more prudent with respect to his transactions cannot later on be
heard to complain for being ignorant or having been forced into merely
consenting to the contract.35
In his Reply, Aznar contended that to a layman, the term "blacklisting" is
synonymous with the words "hot list" or "declared overlimit"; and
whether his card was blacklisted or declared over the limit, the same
was dishonored due to the fault or gross negligence of Citibank.36
Aznar also filed a Memorandum raising as issues the following:
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Prof. Avena
It is basic that in civil cases, the burden of proof rests on the plaintiff to
establish his case based on a preponderance of evidence. The party that
alleges a fact also has the burden of proving it.40
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Q. And after you were told that your card was denied you presumed
that it was blacklisted?
A. Definitely.
In the complaint Aznar filed before the RTC, he claimed that Citibank
blacklisted his Mastercard which caused its dishonor in several
establishments in Malaysia, Singapore, and Indonesia, particularly in
Ingtan Agency in Indonesia where he was humiliated when its staff
insinuated that he could be a swindler trying to use a blacklisted card.
As correctly found by the RTC in its May 29, 1998 Decision, Aznar failed
to prove with a preponderance of evidence that Citibank blacklisted his
Mastercard or placed the same on the "hot list."41
Aznar in his testimony admitted that he had no personal knowledge that
his Mastercard was blacklisted by Citibank and only presumed such fact
from the dishonor of his card.
Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list
was confirmed to be authentic".
Now, who confirmed that the blacklisting of your Preferred Citibank
Mastercard was authentic?
A. Okey. When I presented this Mastercard, my card rather, at the
Merchants store, I do not know, they called up somebody for verification
then later they told me that "your card is being denied". So, I am not in a
position to answer that. I do not know whom they called up; where they
verified. So, when it is denied thats presumed to be blacklisted.
Q. So the word that was used was denied?
A. Denied.
Prof. Avena
Aznar, who testified on the authenticity of Exh. "G," did not actually see
the document executed or written, neither was he able to provide
evidence on the genuineness of the signature or handwriting of Nubi,
who handed to him said computer print-out. Indeed, all he was able to
allege in his testimony are the following:
Q I show to you a Computer Print Out captioned as On Line
Authorization Activity Report where it is shown that the Preferred
Master Card Number 5423392007867012 was denied as per notation on
the margin of this Computer Print Out, is this the document evidencing
the dishonor of your Preferred Master Card?
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xxxx
A Yes sir, after that Ingtan incident, I went straight to the Service Agency
there and on the left hand side you will be able to see the name of the
person in-charged [sic] there certifying that really my card is being
blacklisted and there is the signature there of the agency.
ATTY. NAVARRO:
The witness, your honor, is pointing to the signature over the
handwritten name of Victrina Elnado Nubi which I pray, your honor, that
the Computer Print Out be marked as our Exhibit "G" and the remarks at
the left hand bottom portion of Victorina Elnado Nubi with her signature
thereon be encircled and be marked as our Exhibit "G-1".
xxxx
Q Mr. Aznar, where did you secure this Computer Print Out marked
as Exhibit "G"?
A This is provided by that Agency, your honor. They were the ones
who provided me with this. So what the lady did, she gave me the
Aznar claims that his testimony complies with par. (c), i.e., it constitutes
the "other evidence showing integrity and reliability of Exh. "G" to the
satisfaction of the judge." The Court is not convinced. Aznars testimony
that the person from Ingtan Agency merely handed him the computer
print-out and that he thereafter asked said person to sign the same
cannot be considered as sufficient to show said print-outs integrity and
Prof. Avena
reliability. As correctly pointed out by Judge Marcos in his May 29, 1998
Decision, Exh. "G" does not show on its face that it was issued by Ingtan
Agency as Aznar merely mentioned in passing how he was able to secure
the print-out from the agency; Aznar also failed to show the specific
business address of the source of the computer print-out because while
the name of Ingtan Agency was mentioned by Aznar, its business
address was not reflected in the print-out.45
Indeed, Aznar failed to demonstrate how the information reflected on
the print-out was generated and how the said information could be
relied upon as true. In fact, Aznar to repeat, testified as follows:
ATTY. NERI
Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list
was confirmed to be authentic"
Now, who confirmed that the blacklisting of your Preferred Citibank
Mastercard was authentic?
A Okey. When I presented this Mastercard, my card rather, at the
Merchants store, I do not know, they called up somebody for verification
then later they told me that "your card is being denied". So, I am not in a
position to answer that. I do not know whom they called up; where
they verified. So, when it is denied thats presumed to be
blacklisted.46 (Emphasis supplied)
Aznar next invokes Section 43 of Rule 130 of the Rules of Court, which
pertains to entries in the course of business, to support Exh. "G". Said
provision reads:
Sec. 43. Entries in the course of business. Entries made at, or near the
time of the transactions to which they refer, by a person deceased or
unable to testify, who was in a position to know the facts therein stated,
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may be received as prima facie evidence, if such person made the entries
in his professional capacity or in the performance of duty and in the
ordinary or regular course of business or duty.
Under this rule, however, the following conditions are required:
1. the person who made the entry must be dead, or unable to
testify;
2. the entries were made at or near the time of the transactions
to which they refer;
3. the entrant was in a position to know the facts stated in the
entries;
4. the entries were made in his professional capacity or in the
performance of a duty, whether legal, contractual, moral or
religious; and
5. the entries were made in the ordinary or regular course of
business or duty.47
As correctly pointed out by the RTC in its May 29, 1998 Decision, there
appears on the computer print-out the name of a certain "Victrina
Elnado Nubi" and a signature purportedly belonging to her, and at the
left dorsal side were handwritten the words "Sorry for the delay since the
records had to be retrieved. Regards. Darryl Mario." It is not clear
therefore if it was Nubi who encoded the information stated in the printout and was the one who printed the same. The handwritten annotation
signed by a certain Darryl Mario even suggests that it was Mario who
printed the same and only handed the print-out to Nubi. The identity of
the entrant, required by the provision above mentioned, was therefore
not established. Neither did petitioner establish in what professional
capacity did Mario or Nubi make the entries, or whether the entries were
Prof. Avena
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blacklisted, let alone the fact that all the credit cards which had been
cancelled by the defendant bank were all contained, reported and listed
in said Warning Cancellation Bulletin which were issued and released on
a regular basis.
These three hundred (300) Warning Cancellation Bulletins pieces of
documentary proofs, all in all, adduced by defendant pointed to the fact
that said plaintiffs credit car (sic) was not among those found in said
bulletins as having been cancelled for the period for which the said
bulletins had been issued.
Between said computer print out (Exhibit G) and the Warning
Cancellation Bulletins (Exhibits 3 to 8 and their submarkings) the
latter documents adduced by defendant are entitled to greater weight
than that said computer print out presented by plaintiff that bears on the
issue of whether the plaintiffs preferred master card was actually placed
in the hot list or blacklisted for the following reasons:
The first reason is that the due execution and authentication of these
Warning Cancellation Bulletins (or WCB) have been duly established and
identified by defendants own witness, Dennis Flores, one of the banks
officers, who is the head of its credit card department, and, therefore,
competent to testify on the said bulletins as having been issued by the
defendant bank showing that plaintiffs preferred master credit card was
never blacklisted or placed in the Banks hot list. But on the other hand,
plaintiffs computer print out (Exhibit G) was never authenticated or its
due execution had never been duly established. Thus, between a set of
duly authenticated commercial documents, the Warning Cancellation
Bulletins (Exhibits 3 to 8 and their submarkings), presented by
defendants (sic) and an unauthenticated private document, plaintiffs
computer print out (Exhibit G), the former deserves greater evidentiary
weight supporting the findings of this Court that plaintiffs preferred
master card (Exhibit 1) had never been blacklisted at all or placed in a
so-called hot list by defendant.49
Prof. Avena
Petitioner next argues that with the additional deposit he made in his
account which was accepted by Citibank, there was an implied novation
and Citibank was under the obligation to increase his credit limit and
make the necessary entries in its computerized systems in order that
petitioner may not encounter any embarrassing situation with the use of
his credit card. Again, the Court finds that petitioner's argument on this
point has no leg to stand on.
Citibank never denied that it received petitioners additional deposit.50 It
even claimed that petitioner was able to purchase plane tickets from
Cebu to Kuala Lumpur in the amount of P237,170.00, which amount was
beyond hisP150,000.00 limit, because it was able to credit petitioners
additional deposit to his account. Flores of Citibank testified:
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COURT:
So, Atty. Navarro, what do you say to that explanation?
ATTY. NAVARRO [counsel of petitioner]:
That is correct, your honor, that is borne out by the records, your
honor. (Emphasis supplied)
COURT: (to witness)
Q So, I think Atty. Navarro is only after whether a credit line could be
extended?
COURT:
Q When was this ticket purchased, after the account was augmented
or before?
A No, sir, it is not possible. So, the only way the P237,000.00
transaction could be approved was by way of advance payment
which actually happened in this case because there is no way that
the P237,000.00 can be approved with the P150,000.00 credit
limit.52 (Emphasis supplied)
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Prof. Avena
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Id.
Id. at 3 (Complaint).
Records, p. 4.
10
Id.
11
12
13
Id. at 20-21.
14
Id. at 293.
15
Id. at 298.
Prof. Avena
Exh. "G".
Exhs. "3", "3-1" to "3-38", "4", "4-1" to "4-38", "5", "5-1" to "539", "6", "6-1" to "6-39", "7", "7-1" to "7-37", "8", "8-1" to "8-20".
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17
18
Records, p. 297.
19
Id. at 298.
20
Id. at 299-302.
21
Id. at 304.
22
Id. at 332.
23
Id. at 328-331.
29
Id. at 92.
24
25
Rollo, p. 76.
31
Sec. 5. xxx When issues not raised by the pleadings are tried
with the express or implied consent of the parties, they shall be
treated in all respects as if they had been raised in the pleadings.
Such amendment of the pleadings as may be necessary to cause
them to conform to the evidence and to raise these issues may be
made upon motion of any party at any time, even after judgment;
but failure to amend does not affect the result of the trial of these
issues. xxx
32
Prof. Avena
49
50
51
Id. at 12.
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35
52
36
Id. at 137-142.
53
37
Id. at 164-165.
54
BPI Express Card Corp. v. Olalia, 423 Phil. 593, 599 (2001).
38
Id. at 165-171.
55
39
Id. at 190-224.
56
Id. at 259.
40
57
41
42
43
44
45
Records, p. 295.
46
Security Bank and Trust Company v. Gan, G.R. No. 150464, June
27, 2006, 493 SCRA 239, 244-245.
47
48
Records, p. 153.
(7) Libel, slander or any other form of defamation;
Prof. Avena
61
Id. at 277.
62
63
Id. at 275-276.
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Prof. Avena
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the services of Bernardo B. Jose, Jr. (Jose, Jr.) as oiler of M/T Limar. The
employment contract stated:
That the employee shall be employed on board under the following
terms and conditions:
1.1 Duration of
Contract
Position
OILER
Hours of Work
48 HOURS/WEEK
Overtime
Point of Hire
MANILA, PHILIPPINES9
Prof. Avena
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Clinic, Inc.,13 and Maritime Clinic for International Services, Inc.14 He was
found negative for marijuana.
Jose, Jr. filed with the NLRC a complaint against MPI and MSSI for illegal
dismissal with claim for his salaries for the unexpired portion of the
employment contract.
The Labor Arbiters Ruling
In her 18 June 2003 Decision, the Labor Arbiter dismissed the complaint
for lack of merit. The Labor Arbiter held that:
xxx
They are found to have positive trace of alcohol or any of the banned
substances in any random testing sample.
Jose, Jr. began performing his duties on board the M/T Limar on 21
August 2002. On 8 October 2002, a random drug test was conducted on
all officers and crew members of M/T Limar at the port of Curacao. Jose,
Jr. was found positive for marijuana. Jose, Jr. was informed about the
result of his drug test and was asked if he was taking any medication.
Jose, Jr. said that he was taking Centrum vitamins.
Jose, Jr. was allowed to continue performing his duties on board the M/T
Limar from 8 October to 29 November 2002. In the Sea Going Staff
Appraisal Report11 on Jose Jr.s work performance for the period of 1
August to 28 November 2002, Jose, Jr. received a 96% total rating and
was described as very hardworking, trustworthy, and reliable.
On 29 December 2002, M/T Limar reached the next port after the
random drug test and Jose, Jr. was repatriated to the Philippines. When
Jose, Jr. arrived in the Philippines, he asked MPI that a drug test be
conducted on him. MPI ignored his request. On his own, Jose, Jr.
procured drug tests from Manila Doctors Hospital,12 S.M. Lazo Medical
Based from the facts and evidence, this office inclined [sic] to rule
in favor of the respondents: we find that complainants termination
from employment was valid and lawful. It is established that
complainant, after an unannounced drug test conducted by the
respondent principal on the officers and crew on board the vessel,
was found positive of marijuana, a prohibited drug. It is a
universally known fact the menace that drugs bring on the user as
well as to others who may have got on his way. It is noted too that
complainant worked on board a tanker vessel which carries toxic
materials such as fuels, gasoline and other combustible materials
which require delicate and careful handling and being an oiler,
complainant is expected to be in a proper disposition. Thus, we
agree with respondents that immediate repatriation of
complainant is warranted for the safety of the vessel as well as to
complainants co-workers on board. It is therefore a risk that
should be avoided at all cost. Moreover, under the POEA Standard
Employment Contract as cited by the respondents (supra), violation
of the drug and alcohol policy of the company carries with it the
penalty of dismissal to be effected by the master of the vessel. It is
also noted that complainant was made aware of the results of the
drug test as per Drug Test Certificate dated October 29, 2002. He
Prof. Avena
was not dismissed right there and then but it was only on December
29, 2002 that he was repatriated for cause.
As to the complainants contention that the ship doctors report can not
be relied upon in the absence of other evidence supporting the doctors
findings for the simple reason that the ship doctor is under the control of
the principal employer, the same is untenable. On the contrary, the
findings of the doctor on board should be given credence as he would
not make a false clarification. Dr. A.R.A Heath could not be said to have
outrageously contrived the results of the complainants drug test. We are
therefore more inclined to believe the original results of the
unannounced drug test as it was officially conducted on board the vessel
rather than the subsequent testing procured by complainant on his own
initiative. The result of the original drug test is evidence in itself and
does not require additional supporting evidence except if it was shown
that the drug test was conducted not in accordance with the drug testing
procedure which is not obtaining in this particular case. [H]ence, the
first test prevails.
We can not also say that respondents were motivated by ill will against
the complainant considering that he was appraised to be a good worker.
For this reason that respondents would not terminate [sic] the services
of complainant were it not for the fact that he violated the drug and
alcohol policy of the company. [T]hus, we find that just cause exist [sic]
to justify the termination of complainant.15
Jose, Jr. appealed the Labor Arbiters 18 June 2003 Decision to the NLRC.
Jose, Jr. claimed that the Labor Arbiter committed grave abuse of
discretion in ruling that he was dismissed for just cause.
The NLRCs Ruling
In its 19 January 2004 Resolution, the NLRC set aside the Labor
Arbiters 18 June 2003 Decision. The NLRC held that Jose, Jr.s
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dismissal was illegal and ordered MPI and MSSI to pay Jose, Jr. his
salaries for the unexpired portion of the employment contract. The
NLRC held that:
Here, a copy of the purported drug test result for Complainant
indicates, among others, the following typewritten words "Hoofd:
Drs. R.R.L. Petronia Apotheker" and "THC-COOH POS."; the
handwritten word "Marihuana"; and the stamped words "Dr. A.R.A.
Heath, MD", "SHIPS DOCTOR" and "29 OKT. 2002." However, said
test result does not contain any signature, much less the signature
of any of the doctors whose names were printed therein (Page 45,
Records). Verily, the veracity of this purported drug test result is
questionable, hence, it cannot be deemed as substantial proof that
Complainant violated his employers "no alcohol, no drug" policy. In
fact, in his November 14, 2002 message to Stelmar Tanker Group,
the Master of the vessel where Complainant worked, suggested that
another drug test for complainant should be taken when the vessel
arrived [sic] in Curacao next call for final findings (Page 33,
Records), which is an indication that the Master, himself, was in
doubt with the purported drug test result. Indeed there is reason
for the Master of the vessel to doubt that Complainant was taking in
the prohibited drug "marihuana." The Sea Going Staff Appraisal
Report signed by Appraiser David A. Amaro, Jr. and reviewed by the
Master of the vessel himself on complainants work performance as
Wiper from August 1, 2002 to November 28, 2002 which included a
two-month period after the purported drug test, indicates that out
of a total score of 100% on Safety Consciousness (30%), Ability
(30%), Reliability (20%) and Behavior & Attitude (20%),
Complainant was assessed a score of 96% (Pages 30-31, Records).
Truly, a worker who had been taking in prohibited drug could not
have given such an excellent job performance. Significantly, under
the category "Behavior & Attitude (20%)," referring to his personal
relationship and his interactions with the rest of the ships staff and
his attitude towards his job and how the rest of the crew regard
Prof. Avena
him, Complainant was assessed the full score of 20% (Page 31,
Records), which belies Respondents insinuation that his alleged
offense directly affected the safety of the vessel, its officers and
crew members. Indeed, if Complainant had been a threat to the
safety of the vessel, officers and crew members, he would not be
been [sic] allowed to continue working almost three (3) months
after his alleged offense until his repatriation on December 29,
2002. Clearly, Respondents failed to present substantial proof that
Complainants dismissal was with just or authorized cause.
Moreover, Respondents failed to accord Complainant due process prior
to his dismissal. There is no showing that Complainants employer
furnished him with a written notice apprising him of the particular act or
omission for which his dismissal was sought and a subsequent written
notice informing him of the decision to dismiss him, much less any proof
that Complainant was given an opportunity to answer and rebut the
charges against him prior to his dismissal. Worse, Respondents invoke
the provision in the employment contract which allows summary
dismissal for cases provided therein. Consequently, Respondents argue
that there was no need for him to be notified of his dismissal. Such
blatant violation of basic labor law principles cannot be permitted by
this Office. Although a contract is law between the parties, the provisions
of positive law which regulate such contracts are deemed included and
shall limit and govern the relations between the parties (Asia World
Recruitment, Inc. vs. NLRC, G.R. No. 113363, August 24, 1999).
Relative thereto, it is worth noting Section 10 of Republic Act No. 8042,
which provides that "In cases of termination of overseas employment
without just, valid or authorized cause as defined by law or contract, the
worker shall be entitled to the full reimbursement of his placement fee
with interest of twelve percent (12%) per annum, plus his salaries for
the unexpired portion of his employment contract or for three (3)
months for every year of the unexpired term, whichever is less."16
Page 25 of 95
Prof. Avena
We can hardly belabor the reasons and justification for this policy. The
safety of the vessel on the high seas is a matter of supreme and
unavoidable concern to all the owners, the crew and the riding public.
In the ultimate analysis, a vessel is only as seaworthy as the men who
sail it, so that it is necessary to maintain at every moment the efficiency
and competence of the crew. Without an effective no alcohol, no drug
policy on board the ship, the vessels safety will be seriously
compromised. The policy is, therefore, a reasonable and lawful order or
regulation that, once made known to the employee, must be observed by
him, and the failure or refusal of a seaman to comply with it should
constitute serious misconduct or willful disobedience that is a just cause
for the termination of employment under the Labor Code (Aparente vs.
National Labor Relations Commission, 331 SCRA 82). As the labor
arbiter has discerned, the seriousness and earnestness in the
enforcement of the ban is highlighted by the provision of the POEA
Standard Employment Contract allowing the ship master to forego the
notice of dismissal requirement in effecting the repatriation of the
seaman violating it.
xxxx
Under legal rules of evidence, not all unsigned documents or papers fail
the test of admissibility. There are kinds of evidence known as
exceptions to the hearsay rule which need not be invariably signed by
the author if it is clear that it issues from him because of necessity and
under circumstances that safeguard the trustworthiness of the paper. A
number of evidence of this sort are called entries in the course of
business, which are transactions made by persons in the regular course
of their duty or business. We agree with the labor arbiter that the drug
test result constitutes entries made in the ordinary or regular course of
duty of a responsible officer of the vessel. The tests administered to the
crew were routine measures of the vessel conducted to enforce its stated
policy, and it was a matter of course for medical reports to be issued and
released by the medical officer. The ships physician at Curacao under
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whom the tests were conducted was admittedly Dr. Heath. It was under
his name and with his handwritten comments that the report on the
respondent came out, and there is no basis to suspect that these results
were issued other than in the ordinary course of his duty. As the labor
arbiter points out, the drug test report is evidence in itself and does not
require additional supporting evidence except if it appears that the drug
test was conducted not in accordance with drug testing procedures.
Nothing of the sort, he says, has even been suggested in this particular
case.
The regularity of the procedure observed in the administration and
reporting of the tests is the very assurance of the reports admissibility
and credibility under the laws of the evidence. We see no reason why it
cannot be considered substantial evidence, which, parenthetically, is the
lowest rung in the ladder of evidence. It is from the fact that a report or
entry is a part of the regular routine work of a business or profession
that it derives its value as legal evidence.
Then the respondent was notified of the results and allowed to explain
himself. He could not show any history of medication that could account
for the traces of drugs in his system. Despite his lack of plausible
excuses, the ship captain came out in support of him and asked his
superiors to give him another chance. These developments prove that
the respondent was afforded due process consistent with the exigencies
of his service at sea. For the NLRC to annul the process because he was
somehow not furnished with written notice is already being pedantic.
What is the importance to the respondent of the difference between a
written and verbal notice when he was actually given the opportunity to
be heard? x x x
The working environment in a seagoing vessel is sui generis which
amply justifies the difference in treatment of seamen found guilty of
serious infractions at sea. The POEA Standard Employment Contract
allows the ship master to implement a repatriation for just cause
Prof. Avena
In a
dated 1 August 2007, MPI and MSSI prayed that they be
substituted by OSG Ship Management Manila, Inc. as respondent in the
present case. In a Resolution21 dated 14 November 2007, the Court
noted the motion.
The Issues
In his petition dated 13 September 2005, Jose, Jr. claims that he was
illegally dismissed from employment for two reasons: (1) there is no just
cause for his dismissal because the drug test result is unsigned by the
doctor, and (2) he was not afforded due process. He stated that:
Page 27 of 95
Prof. Avena
Page 28 of 95
were issued other than in the ordinary course of his duty. As the labor
arbiter points out, the drug test report is evidence in itself and does not
require additional supporting evidence except if it appears that the drug
test was conducted not in accordance with drug testing procedures.
Nothing of the sort, he says, has even been suggested in this particular
case.23 (Emphasis supplied)
Jose, Jr. claims that the Court of Appeals erred when it ruled that there
was just cause for his dismissal. The Court is not impressed. In a petition
for review on certiorari under Rule 45 of the Rules of Court, a mere
statement that the Court of Appeals erred is insufficient. The petition
must state the law or jurisprudence and the particular ruling of the
appellate court violative of such law or jurisprudence. In Encarnacion v.
Court of Appeals,24 the Court held that:
Petitioner asserts that there is a question of law involved in this appeal.
We do not think so. The appeal involves an appreciation of facts, i.e.,
whether the questioned decision is supported by the evidence and the
records of the case. In other words, did the Court of Appeals commit a
reversible error in considering the trouble record of the subject
telephone? Or is this within the province of the appellate court to
consider? Absent grave abuse of discretion, this Court will not reverse
the appellate courts findings of fact.
In a petition for review under Rule 45, Rules of Court, invoking the usual
reason, i.e., that the Court of Appeals has decided a question of substance
not in accord with law or with applicable decisions of the Supreme
Court, a mere statement of the ceremonial phrase is not sufficient to
confer merit on the petition. The petition must specify the law or
prevailing jurisprudence on the matter and the particular ruling of the
appellate court violative of such law or previous doctrine laid down by
the Supreme Court. (Emphasis supplied)
Prof. Avena
In the present case, Jose, Jr. did not show that the Court of Appeals
ruling is violative of any law or jurisprudence. Section 43, Rule 130, of
the Rules of Court states:
SEC. 43. Entries in the course of business. Entries made at, or near the
time of the transactions to which they refer, by a person deceased, or
unable to testify, who was in a position to know the facts therein stated,
may be received as prima facie evidence, if such person made the entries
in his professional capacity or in the performance of duty and in the
ordinary or regular course of business or duty.1avvphi1
In Canque v. Court of Appeals,25 the Court laid down the requisites for
admission in evidence of entries in the course of business: (1) the person
who made the entry is dead, outside the country, or unable to testify; (2)
the entries were made at or near the time of the transactions to which
they refer; (3) the person who made the entry was in a position to know
the facts stated in the entries; (4) the entries were made in a
professional capacity or in the performance of a duty; and (5) the entries
were made in the ordinary or regular course of business or duty.
Here, all the requisites are present: (1) Dr. Heath is outside the country;
(2) the entries were made near the time the random drug test was
conducted; (3) Dr. Heath was in a position to know the facts made in the
entries; (4) Dr. Heath made the entries in his professional capacity and
in the performance of his duty; and (5) the entries were made in the
ordinary or regular course of business or duty.
The fact that the drug test result is unsigned does not necessarily lead to
the conclusion that Jose, Jr. was not found positive for marijuana. In KAR
ASIA, Inc. v. Corona,26 the Court admitted in evidence unsigned payrolls.
In that case, the Court held that:
Entries in the payroll, being entries in the course of business, enjoy the
presumption of regularity under Rule 130, Section 43 of the Rules of
Page 29 of 95
Prof. Avena
admittedly Dr. Heath. It was under his name and with his handwritten
comments that the report on the respondent came out, and there is no
basis to suspect that these results were issued other than in the ordinary
course of his duty. As the labor arbiter points out, the drug test report is
evidence in itself and does not require additional supporting evidence
except if it appears that the drug test was conducted not in accordance
with drug testing procedures. Nothing of the sort, he says, has even been
suggested in this particular case.27
Factual findings of the Court of Appeals are binding on the Court. Absent
grave abuse of discretion, the Court will not disturb the Court of Appeals
factual findings.28 In Encarnacion,29 the Court held that, "unless there is a
clearly grave or whimsical abuse on its part, findings of fact of the
appellate court will not be disturbed. The Supreme Court will only
exercise its power of review in known exceptions such as gross
misappreciation of evidence or a total void of evidence." Jose, Jr. failed to
show that the Court of Appeals gravely abused its discretion.
Article 282(a) of the Labor Code states that the employer may terminate
an employment for serious misconduct. Drug use in the premises of the
employer constitutes serious misconduct. In Bughaw, Jr. v. Treasure
Island Industrial Corporation,30 the Court held that:
The charge of drug use inside the companys premises and during
working hours against petitioner constitutes serious misconduct, which
is one of the just causes for termination. Misconduct is improper or
wrong conduct. It is the transgression of some established and definite
rule of action, a forbidden act, a dereliction of duty, willful in character,
and implies wrongful intent and not merely an error in judgment. The
misconduct to be serious within the meaning of the Act must be of such a
grave and aggravated character and not merely trivial or unimportant.
Such misconduct, however serious, must nevertheless, in connection
with the work of the employee, constitute just cause for his separation.
This Court took judicial notice of scientific findings that drug abuse can
Page 30 of 95
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Id. at 65.
Id. at 66.
Id.
10
CA rollo, p. 75.
11
12
Id. at 69-70.
13
Id. at 71.
14
Id. at 72.
15
Id. at 46-47.
16
Id. at 56-58.
17
18
19
20
21
Id. at 159.
22
Id. at 16-20.
23
Id. at 35.
Id. at 40.
Id. at 62-63.
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24
25
26
27
Rollo, p. 35.
28
29
Id. at 284.
30
32
Id. at 297-298.
Page 32 of 95
Prof. Avena
RUDY
STANDARD
INSURANCE
CO.,
DECISION
QUISUMBING, J.:
The instant petition seeks the reversal of the Court of Appeals
Decision[1] dated February 4, 1999, as well as its Resolution,[2] dated
September 7, 1999, in CA-G.R. CV No. 47227. The assailed decision
dismissed petitioners appeal and the resolution denied petitioners
motion for reconsideration.
The original action was lodged before the Regional Trial Court of
Iloilo City, Branch 25, as Civil Case No. 17045 for breach of contract and
damages, as a result of the insurance companys refusal of petitioners
claim on the insurance policy of his truck which figured in an accident
during the effectivity of the policy.
The following are the antecedent facts:
Petitioner Rudy Lao is the owner of a Fuso truck with Plate No. FCG538. The truck was insured with respondent Standard Insurance Co., Inc.
under Policy No. CV-21074[3] for the maximum amount of P200,000 and
an additional sum of P50,000 to cover any damages that might be caused
to his goods.
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2)
SO ORDERED.[8]
On appeal with the Court of Appeals, the RTC decision was affirmed.
The petition was dismissed and the motion for reconsideration was
denied. The CA stated:
IN VIEW OF THE FOREGOING, the decision appealed from is hereby
AFFIRMED. Consequently, the complaint is DISMISSED for lack of merit.
SO ORDERED.[9]
Page 34 of 95
In his petition for review now before us, petitioner cites the
following as grounds therefor:
A. THE HONORABLE COURT OF APPEALS AND THE LOWER
COURT RELIED MAINLY ON SECTION 44, RULE 130 OF THE
RULES OF COURT IN UPHOLDING THE ENTRY IN THE
POLICE BLOTTER WHICH STATED THAT THE DRIVER OF
THE INSURED VEHICLE WAS LEONARDO ANIT Y PANES,
WHO WAS NOT AN AUTHORIZED DRIVER. UNDER THE
SAID SECTION 44, RULE 130 ITSELF HOWEVER, THE
POLICE BLOTTER IS MERELY A PRIMA FACIE EVIDENCE OF
THE FACTS STATED THEREIN WHICH MAY BE NULLIFIED
BY OTHER EVIDENCE;[10]
B. PERCEPTION OF THE HONORABLE COURT OF APPEALS ON
THE DIMINISHED CREDIBILITY OF PAT. FELIPE
VILLAHERMOSA, THE TRAFFIC POLICE INVESTIGATOR, IS
MISPLACED AND UNFOUNDED;[11]
C. THE DRIVER OF THE INSURED TRUCK WITH PLATE NR.
FCG-538 WAS GIDDIE BOY Y COYEL, AN AUTHORIZED
DRIVER OF THE SAID TRUCK. THE DRIVER OF THE OTHER
TRUCK INVOLVED IN THE ACCIDENT WITH PLATE NR. FBS917 WAS LEONARDO ANIT Y PANES;[12]
D. THE HONORABLE COURT OF APPEALS MISAPPLIED
ARTICLES 2232 AND 2208 OF THE NEW CIVIL CODE IN
GRANTING EXEMPLARY DAMAGES AND ATTORNEYS FEES
TO RESPONDENT. UNDER ARTICLES 2229 AND 2234 OF
THE NEW CIVIL CODE, EXEMPLARY DAMAGES CANNOT BE
AWARDED IN THE ABSENCE OF AN AWARD FOR MORAL,
TEMPERATE,
LIQUIDATED
OR
COMPENSATORY
DAMAGES;[13]
E. TESTIMONIES OF THE WITNESSES OF RESPONDENT
NAMELY, SGT. BERNAS, THE DESK OFFICER AND ROMEO
Prof. Avena
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(b)
(c)
We agree with the trial and appellate courts in finding that the
police blotter was properly admitted as they form part of official
records.[20] Entries in police records made by a police officer in the
performance of the duty especially enjoined by law are prima
facie evidence of the fact therein stated, and their probative value may
be either substantiated or nullified by other competent
evidence.[21] Although police blotters are of little probative value, they
are nevertheless admitted and considered in the absence of competent
evidence to refute the facts stated therein.
In this case, the entries in the police blotter reflected the
information subject of the controversy. Stated therein was the fact that
Leonardo Anit was driving the insured truck with plate number FCG538. This is unlike People v. Mejia,[22] where we said that entries in the
police blotters should not be given undue significance or probative
value, since the Court there found that the entries in question are sadly
wanting in material particulars.
Furthermore, in this case the police blotter was identified and
formally offered as evidence. The person who made the entries was
likewise presented in court; he identified and certified as correct the
entries he made on the blotter. The information was supplied to the
entrant by the investigating officer who did not protest about any
inaccuracy when the blotter was presented to him. No explanation was
likewise given by the investigating officer for the alleged interchange of
names.
Prof. Avena
Petitioner also assails the credence given by the trial court to the
version of the respondents vis--vis the testimonies of the witnesses.
Time and again we have reiterated the settled doctrine that great weight,
and even finality, is given to the factual conclusions of the Court of
Appeals which affirm those of the trial courts.[23] We find on this score no
reason to overturn such conclusions.
On the issue of damages, we agree with petitioner that the award of
exemplary damages was improper. In Tiongco v. Atty. Deguma[24] we
held that the entitlement to the recovery of exemplary damages must be
shown. In the case at bar, respondent have not shown sufficient evidence
that petitioner indeed schemed to procure the dubious documents and
lied through his teeth to establish his version of the facts. What was
found was that the document he presented was inadmissible, and its
contents were dubious. However, no proof was adduced to sufficiently
establish that it came to his hands through his employment of
underhanded means. In Tiongco, we further stated:
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[1]
[2]
Id. at 78-79.
[3]
Records, pp.6-7.
[4]
[5]
The award of attorneys fees must also be deleted. Such award was
given in its extraordinary concept as indemnity for damages to be paid
by the losing party to the prevailing party.[26] But it was not sufficiently
shown that petitioner acted maliciously in instituting the claim for
damages. Perforce, the award of attorneys fees was improper.
[6]
Records, p. 193.
Id. at 11.
[8]
Rollo, p. 30.
[9]
Id. at 63.
Prof. Avena
[10]
Id. at 10.
[11]
Id. at 12.
[12]
Id. at 13.
[13]
Id. at 15.
[14]
Id. at 17.
[15]
Id. at 19.
[16]
[17]
[18]
[19]
[20]
People v. Dy, G.R. No. L-74517, 23 February 1988, 158 SCRA 111, 125.
[21]
[22]
[23]
[24]
Page 37 of 95
[25]
Ibid, citing Makabali v. Court of Appeals, G.R. No. L-46877, 157 SCRA
253, 259.
[26]
Prof. Avena
(US$303.00)
representing salary for the
month of June 1989;
b) THREE THOUSAND FIFTY FOUR US DOLLARS
Page 38 of 95
(US$3,054.00)
representing salaries for
the unexpired portion of
the contract (JulyDecember 1989); and
c) ONE HUNDRED SIX & 50/100 US DOLLARS
(US$106.50) or five
percent (5%) of the total
award as and by way of
attorney's fees.
ROMERO, J.:p
This petition for certiorari seeks to annul and set aside the
Resolution 1 of the National Labor Relations Commission (NLRC)
affirming the Decision 2 of the Philippine Overseas Employment
Administration (POEA) which disposed of POEA Case No.(M) 8909-865 as follows:
WHEREFORE, in view of the foregoing, respondents
Wallem Maritime Services, Inc. and Wallem
Shipmanagement Ltd. are hereby ordered jointly and
severally, to pay complainant the following in Philippine
currency at the prevailing rate of exchange at the time of
payment:
a) THREE HUNDRED THREE US DOLLARS
Prof. Avena
Page 39 of 95
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could they get their salaries for the month of June. Private
respondent, in a letter addressed to Capt. Dio, asked for a
reconsideration of their dismissal but the latter did not respond.
Frustrated, private respondent sought the assistance of a lawyer
who wrote Wallem a demand letter dated August 28, 1989 but
the same was ignored. 4
Petitioners, defending their position, alleged that the incident
was not the first infraction committed by the two. As shown by
the logbook, on June 19, 1989, while the vessel was docked in
Batangas, they left it during working hours without asking
permission. For this offense, they were given a warning. On June
27, 1989 (sic), while the vessel was anchored at the Port of
Kawasaki, Japan, they assaulted the officer on watch for the day,
Mr. V.S. Sason. The three were "mustered" and it was found that
Sason "was attacked with a spanner without provacition (sic)."
The two were "severely warned that they will be dealt according
to the rules and regulation of their contact of employment (sic)."
When the vessel was about to sail that day, the two went ashore
inspite of the warning given them. They were arrested by
Japanese authorities but the vessel's departure was delayed for
five (5) hours. The agency in Manila was informed that their
wages should be settled "after deducting recoveries" or fines and
air fare. Their dismissal from the service was also
recommended. 5
In his aforementioned decision of September 14, 1990 finding
private respondent's dismissal to be illegal, POEA Deputy
Administrator Manuel G. Imson held:
We find complainant's dismissal to be without just and
valid cause. We cannot give much weight and credence to
the "certified true copy of the official logbook" (Annex
"1", answer) because the alleged entries therein were
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LRA;
(d)
LRA
Report
dated December
2,
1980 narrating the history of the subject property; and
(e)
Prof. Avena
trial court. It must be recalled that on August 21, 1998, the trial court
issued an Order, the dispositive portion of which states:
In view of the foregoing rule, and considering the
Report dated December 2, 1980, of the Acting
Commissioner of Land Registration x x x that Decree No.
4244 was issued on x x x March 3, 1911 in LRC (GLRO),
Record No. 6763, in favor of the Municipality of Cabuyao
for apparently the same parcel of land applied for herein,
this Court resolves to open the decree of registration
issued herein. The Decision of this Court dated May 29,
1957, in Land Registration Case No. N-438, LRC Record
No. 10514, insofar as Lot 1, Plan II-2719 only is
concerned, and the Order of this Court dated May 3,
1996 are both set aside.
Set this case for presentation of evidence for
claimant Vicente Herce, Jr. on September 28,
1998 at 8:30 a.m.
SO ORDERED.[1]
From the foregoing Order, it is clear that petitioner must still
present evidence to prove his claim over the subject
property. Petitioners motion for reconsideration of the Order was
denied; hence, he filed a petition for certiorari before the Court of
Appeals where the sole issue for resolution was whether the trial court
gravely abused its discretion in granting respondent municipalitys
motion to reopen the decree of registration. Finding that the latter met
all the requirements to reopen the decree of registration, the Court of
Appeals denied the petition. At the same time, it ruled that:
It should be recalled that the basis of the issuance
of the Decree in favor of the petitioner in the case at bar
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PUNO, J.:
The legal dispute between the parties began when the petitioners filed
Civil Case No. Q-45567 for support against the private respondent before
the RTC of Quezon City. The complaint was dismissed on December 9,
1986 by Judge Antonio P. Solano, 1 who found that "(t)here is nothing in
the material allegations in the complaint that seeks to compel (private
respondent) to recognize or acknowledge (petitioners) as his
illegitimate children," and that there was no sufficient and competent
evidence to prove the petitioners filiation. 2
Petitioners plodded on. On February 19, 1987, they file the case at
bench, another action for recognition and support against the private
Page 53 of 95
respondent before another branch of the RTC of Quezon City, Branch 87.
The case was docketed as Civil Case No. Q-50111.
The evidence shows that VIOLETA P. ESGUERRA, single, is the mother
and guardian ad litem of the two petitioners, CLARO ANTONIO
FERNANDEZ and JOHN PAUL FERNANDEZ, met sometime in 1983, at the
Meralco Compound tennis courts. A Meralco employee and a tennis
enthusiast, Carlito used to spend his week-ends regularly at said courts,
where Violeta's father served as tennis instructor.
Violeta pointed to Carlito as the father of her two sons. She claimed that
they started their illicit sexual relationship six (6) months after their first
meeting. The tryst resulted in the birth of petitioner Claro Antonio on
March 1, 1984, and of petitioner John Paul on not know that Carlito was
married until the birth of her two children. She averred they were
married in civil rites in October, 1983. In March, 1985, however, she
discovered that the marriage license which they used was spurious.
To bolster their case, petitioners presented the following documentary
evidence: their certificates of live birth, identifying respondent Carlito as
their father; the baptismal certificate of petitioner Claro which also
states that his father is respondent Carlito; photographs of Carlito taken
during the baptism of petitioner Claro; and pictures of respondent
Carlito and Claro taken at the home of Violeta Esguerra.
Petitioners likewise presented as witnesses, Rosario Cantoria, 3 Dr.
Milagros Villanueva, 4 Ruby Chua Cu, 5 and Fr. Liberato Fernandez. 6 The
first three witnesses told the trial court that Violeta Esguerra had, at
different times, 7 introduced the private respondent to them as her
"husband". Fr. Fernandez, on the other hand, testified that Carlito was
the one who presented himself as the father of petitioner Claro during
the latter's baptism.
Prof. Avena
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dated October 20, 1992. It found that the "proof relied upon by the (trial)
court (is) inadequate to prove the (private respondent's) paternity and
filiation of (petitioners)." It further held that the doctrine of res
judicata applied because of the dismissal of the petitioners complaint in
Civil Case No. Q-45567. Petitioners' motion for reconsideration was
denied on December 22, 1992.
Petitioners now contend that the respondent appellate court erred in:
(1) not giving full faith and credit to the testimony in of Violeta Esguerra;
(2) not giving weight and value to the testimony of Father Liberato
Fernandez; (3) not giving probative value to the numerous pictures of
respondent Carlito Fernandez taken during the baptismal ceremony and
inside the bedroom of Violeta Esguerra; (4) not giving probative value to
the birth certificates of petitioners; (5) giving so much credence to the
self-serving and incredible testimony of respondent Carlito Fernandez;
and (6) holding that the principle of res judicata is applicable in the case
at bar.
We find no merit in the petition.
The rule is well-settled that findings of facts of the Court of Appeals may
be reviewed by this court only under exceptional circumstances. One
such situation is when the findings of the appellate court clash with
those of the trial court as in the case at bench. It behooves us therefore
to exercise our extraordinary power, and settle the issue of whether the
ruling of the appellate court that private respondent is not the father of
the petitioners is substantiated by the evidence on record.
We shall first examine the documentary evidence offered by the
petitioners which the respondent court rejected as insufficient to prove
their filiation. Firstly, we hold that petitioners cannot rely on the
photographs showing the presence of the private respondent in the
baptism of petitioner Claro (Exh. "B-8", Exh. "B-12", Exh. "H" and Exh.
"I"). These photographs are far from proofs that private respondent is
Prof. Avena
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Page 56 of 95
We reiterated this rule in Berciles, op. cit., when we held that "a birth
certificate no signed by the alleged father therein indicated is not
competent evidence of paternity."
We have also reviewed the relevant testimonies of the witnesses for the
petitioners and we are satisfied that the respondent appellate court
properly calibrated their weight. Petitioners capitalize on the testimony
of Father Liberato Fernandez who solemnized the baptismal ceremony
of petitioner Claro. He declared on the witness stand:
A Yes, I do.
A I am sure.
Q Do you recall Father, whether on that
occasion when you called for the father
and the mother of the child, that both
father and mother were present?
A Yes.
A Yes.
A I cannot recall.
A It must be in 1986.
Prof. Avena
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#Footnotes
1 Presiding judge of Branch 86, RTC Quezon City.
2 In this regard, Judge Solano held:
xxx xxx xxx
(Petitioners') certificates of birth imputing filiation to
defendant as the putative father are incompetent
evidence.
Prof. Avena
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to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify
their statements as "official information" acquired by the officers who
prepared the reports, the persons who made the statements not only
must have personal knowledge of the facts stated but must have the duty
to give such statements for record.1
The reports in question do not constitute an exception to the hearsay
rule; the facts stated therein were not acquired by the reporting officers
through official information, not having been given by the informants
pursuant to any duty to do so.
The next question is whether or not, without proof as to the cause and
origin of the fire, the doctrine of res ipsa loquitur should apply so as to
presume negligence on the part of appellees. Both the trial court and the
appellate court refused to apply the doctrine in the instant case on the
grounds that "as to (its) applicability ... in the Philippines, there seems to
he nothing definite," and that while the rules do not prohibit its adoption
in appropriate cases, "in the case at bar, however, we find no practical
use for such doctrine." The question deserves more than such summary
dismissal. The doctrine has actually been applied in this jurisdiction, in
the case of Espiritu vs. Philippine Power and Development Co. (CA-G.R. No.
3240-R, September 20, 1949), wherein the decision of the Court of
Appeals was penned by Mr. Justice J.B.L. Reyes now a member of the
Supreme Court.
The facts of that case are stated in the decision as follows:
In the afternoon of May 5, 1946, while the plaintiff-appellee and
other companions were loading grass between the municipalities
of Bay and Calauan, in the province of Laguna, with clear weather
and without any wind blowing, an electric transmission wire,
installed and maintained by the defendant Philippine Power and
Development Co., Inc. alongside the road, suddenly parted, and
one of the broken ends hit the head of the plaintiff as he was
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until
This statement of the rule of res ipsa loquitur has been widely
approved and adopted by the courts of last resort. Some of the
cases in this jurisdiction in which the doctrine has been applied
are the following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So.
977; Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So. 731,
64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc., R.
Co., 115 La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So. 599.
The principle enunciated in the aforequoted case applies with equal
force here. The gasoline station, with all its appliances, equipment and
employees, was under the control of appellees. A fire occurred therein
and spread to and burned the neighboring houses. The persons who
knew or could have known how the fire started were appellees and their
employees, but they gave no explanation thereof whatsoever. It is a fair
and reasonable inference that the incident happened because of want of
care.
In the report submitted by Captain Leoncio Mariano of the Manila Police
Department (Exh. X-1 Africa) the following appears:
gasoline
tever be theWactjvities of these peopleor lighting a cigarette
cannot be excluded and this constitute a secondary hazard to its
operation which in turn endangers the entire neighborhood to
conflagration.
Furthermore, aside from precautions already taken by its
operator the concrete walls south and west adjoining the
neighborhood are only 2-1/2 meters high at most and cannot
avoid the flames from leaping over it in case of fire.
Records show that there have been two cases of fire which
caused not only material damages but desperation and also panic
in the neighborhood.
Although the soft drinks stand had been eliminated, this gasoline
service station is also used by its operator as a garage and repair
shop for his fleet of taxicabs numbering ten or more, adding
another risk to the possible outbreak of fire at this already small
but crowded gasoline station.
The foregoing report, having been submitted by a police officer in the
performance of his duties on the basis of his own personal observation
of the facts reported, may properly be considered as an exception to the
Prof. Avena
Page 64 of 95
Even then the fire possibly would not have spread to the neighboring
houses were it not for another negligent omission on the part of
defendants, namely, their failure to provide a concrete wall high enough
to prevent the flames from leaping over it. As it was the concrete wall
was only 2-1/2 meters high, and beyond that height it consisted merely
of galvanized iron sheets, which would predictably crumple and melt
when subjected to intense heat. Defendants' negligence, therefore, was
not only with respect to the cause of the fire but also with respect to the
spread thereof to the neighboring houses.
The next issue is whether Caltex should be held liable for the damages
caused to appellants. This issue depends on whether Boquiren was an
independent contractor, as held by the Court of Appeals, or an agent of
Caltex. This question, in the light of the facts not controverted, is one of
law and hence may be passed upon by this Court. These facts are: (1)
Boquiren made an admission that he was an agent of Caltex; (2) at the
time of the fire Caltex owned the gasoline station and all the equipment
therein; (3) Caltex exercised control over Boquiren in the management
of the state; (4) the delivery truck used in delivering gasoline to the
station had the name of CALTEX painted on it; and (5) the license to
store gasoline at the station was in the name of Caltex, which paid the
license fees. (Exhibit T-Africa; Exhibit U-Africa; Exhibit X-5 Africa;
Exhibit X-6 Africa; Exhibit Y-Africa).
Prof. Avena
was not in his employ, the driver being an employee of the Caltex (Phil.)
Inc. and/or the owners of the gasoline station." It is true that Boquiren
later on amended his answer, and that among the changes was one to
the effect that he was not acting as agent of Caltex. But then again, in his
motion to dismiss appellants' second amended complaint the ground
alleged was that it stated no cause of action since under the allegations
thereof he was merely acting as agent of Caltex, such that he could not
have incurred personal liability. A motion to dismiss on this ground is
deemed to be an admission of the facts alleged in the complaint.
Caltex admits that it owned the gasoline station as well as the equipment
therein, but claims that the business conducted at the service station in
question was owned and operated by Boquiren. But Caltex did not
present any contract with Boquiren that would reveal the nature of their
relationship at the time of the fire. There must have been one in
existence at that time. Instead, what was presented was a license
agreement manifestly tailored for purposes of this case, since it was
entered into shortly before the expiration of the one-year period it was
intended to operate. This so-called license agreement (Exhibit 5-Caltex)
was executed on November 29, 1948, but made effective as of January 1,
1948 so as to cover the date of the fire, namely, March 18, 1948. This
retroactivity provision is quite significant, and gives rise to the
conclusion that it was designed precisely to free Caltex from any
responsibility with respect to the fire, as shown by the clause that Caltex
"shall not be liable for any injury to person or property while in the
property herein licensed, it being understood and agreed that LICENSEE
(Boquiren) is not an employee, representative or agent of LICENSOR
(Caltex)."
But even if the license agreement were to govern, Boquiren can hardly
be considered an independent contractor. Under that agreement
Boquiren would pay Caltex the purely nominal sum of P1.00 for the use
of the premises and all the equipment therein. He could sell only Caltex
Products. Maintenance of the station and its equipment was subject to
Page 65 of 95
the approval, in other words control, of Caltex. Boquiren could not assign
or transfer his rights as licensee without the consent of Caltex. The
license agreement was supposed to be from January 1, 1948 to
December 31, 1948, and thereafter until terminated by Caltex upon two
days prior written notice. Caltex could at any time cancel and terminate
the agreement in case Boquiren ceased to sell Caltex products, or did not
conduct the business with due diligence, in the judgment of Caltex.
Termination of the contract was therefore a right granted only to Caltex
but not to Boquiren. These provisions of the contract show the extent of
the control of Caltex over Boquiren. The control was such that the latter
was virtually an employee of the former.
Taking into consideration the fact that the operator owed his
position to the company and the latter could remove him or
terminate his services at will; that the service station belonged to
the company and bore its tradename and the operator sold only
the products of the company; that the equipment used by the
operator belonged to the company and were just loaned to the
operator and the company took charge of their repair and
maintenance; that an employee of the company supervised the
operator and conducted periodic inspection of the company's
gasoline and service station; that the price of the products sold
by the operator was fixed by the company and not by the
operator; and that the receipts signed by the operator indicated
that he was a mere agent, the finding of the Court of Appeals that
the operator was an agent of the company and not an
independent contractor should not be disturbed.
To determine the nature of a contract courts do not have or are
not bound to rely upon the name or title given it by the
contracting parties, should thereby a controversy as to what they
really had intended to enter into, but the way the contracting
parties do or perform their respective obligations stipulated or
agreed upon may be shown and inquired into, and should such
Prof. Avena
Page 66 of 95
Prof. Avena
Page 67 of 95
Prof. Avena
FIRST DIVISION
G. R. No. 157064
BARCELON, ROXAS SECURITIES, INC. (now known as UBP Securities,
Inc.) Petitioner,
Vs.
COMMISSIONER OF INTERNAL REVENUE, Respondent
August 7, 2006
Page 68 of 95
DECISION
CHICO-NAZARIO, J.:
This is a Petition for Review on Certiorari, under Rule 45 of the
Rules of Court, seeking to set aside the Decision of the Court of Appeals
in CA-G.R. SP No. 60209 dated 11 July 2002,[1] ordering the petitioner to
pay the Government the amount of P826,698.31 as deficiency income tax
for the year 1987 plus 25% surcharge and 20% interest per annum. The
Court of Appeals, in its assailed Decision, reversed the Decision of the
Court of Tax Appeals (CTA) dated 17 May 2000[2] in C.T.A. Case No. 5662.
Petitioner Barcelon, Roxas Securities Inc. (now known as UBP
Securities, Inc.) is a corporation engaged in the trading of
securities. On 14 April 1988, petitioner filed its Annual Income Tax
Return for taxable year 1987. After an audit investigation conducted by
the Bureau of Internal Revenue (BIR), respondent Commissioner of
Internal Revenue (CIR) issued an assessment for deficiency income tax
in the amount of P826,698.31 arising from the disallowance of the item
on salaries, bonuses and allowances in the amount of P1,219,093,93 as
Prof. Avena
Page 69 of 95
II
WHETHER OR NOT THE COURT OF APPEALS WAS
CORRECT IN REVERSING THE SUBJECT DECISION OF
THE COURT OF TAX APPEALS.
III
WHETHER OR NOT THE RIGHT OF THE BUREAU OF
INTERNAL REVENUE TO ASSESS PETITIONER FOR
ALLEGED DEFICIENCY INCOME TAX FOR 1987 HAS
PRESCRIBED.
IV
WHETHER OR NOT THE RIGHT OF THE BUREAU OF
INTERNAL REVENUE TO COLLECT THE SUBJECT
ALLEGED DEFICIENCY INCOME TAX FOR 1987 HAS
PRESCRIBED.
V
WHETHER OR NOT PETITIONER IS LIABLE FOR THE
ALLEGED DEFICIENCY INCOME TAX ASSESSMENT FOR
1987.
VI
I
WHETHER OR NOT LEGAL BASES EXIST FOR
THE COURT OF APPEALS FINDING THAT THE
COURT OF TAX APPEALS COMMITTED GROSS
ERROR IN THE APPRECIATION OF FACTS.
Prof. Avena
Page 70 of 95
thus:
Jurisprudence is replete with cases holding that if
the taxpayer denies ever having received an assessment
from the BIR, it is incumbent upon the latter to prove by
competent evidence that such notice was indeed received
by the addressee. The onus probandi was shifted to
respondent to prove by contrary evidence that the
Petitioner received the assessment in the due course of
mail. The Supreme Court has consistently held that while
a mailed letter is deemed received by the addressee in
the course of mail, this is merely a disputable
presumption subject tocontroversion and a direct denial
thereof shifts the burden to the party favored by the
presumption to prove that the mailed letter was indeed
received by the addressee (Republic vs. Court of Appeals,
149 SCRA 351). Thus as held by the Supreme Court
in Gonzalo P. Nava vs. Commissioner of Internal Revenue,
13 SCRA 104, January 30, 1965:
The facts to be proved to raise this
presumption are (a) that the letter was
Prof. Avena
Page 71 of 95
Prof. Avena
Page 72 of 95
Prof. Avena
Page 73 of 95
SO ORDERED.
While we have held that an assessment is made
when sent within the prescribed period, even if received
by the taxpayer after its expiration (Coll. of Int. Rev. vs.
Bautista, L-12250 and L-12259, May 27, 1959), this
ruling makes it the more imperative that the release,
mailing, or sending of the notice be clearly and
satisfactorily proved. Mere notations made without the
taxpayers intervention, notice, or control, without
adequate supporting evidence, cannot suffice; otherwise,
the taxpayer would be at the mercy of the revenue
offices, without adequate protection or defense.
[1]
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
Prof. Avena
Page 74 of 95
fifteenth (15th) day of the fourth (4th) month following the close
of the fiscal year, as the case may be.
[20]
Rollo, pp. 53-54.
[21]
386 Phil. 611, 623 (2000).
[22]
Section 3(v), Rule 131, of the 1997 Rules of Court provides:
Sec. 3. Disputable presumptions. The following
presumptions are satisfactory if uncontradicted, but may be
contradicted and overcome by other evidence:
xxxx
(v) That a letter duly directed and mailed was received
in the regular course of the mail;
[23]
Republic v. Court of Appeals, G.R. No. L-38540, 30 April 1987,
149 SCRA 351, 355.
[24]
Rollo, p. 56.
[25]
123 Phil. 272, 277 (1966).
[26]
Transcript of Stenographic Notes, Barcelon, Roxas Securities,
Inc. v. Commissioner of Internal Revenue, CTA Case No. 5662, 25
August 1998, pp. 1-13.
[27]
121 Phil. 117, 123-124 (1965).
Prof. Avena
October 9, 1924
VILLAMOR, J.:
On the 8th day of October, 1920, a contract was entered into between
the parties to this action for the purchase and sale of a tractor and
threshing machine upon the conditions specified in said contract, which
is evidenced by Exhibit A set out in the complaint.
The price of the machineries sold Is P12,400, payable by installments as
follows: P400 at the signing of the contract sale, to wit, October 8, 1920;
P4,000 upon the delivery of said machineries by the defendant to the
plaintiff; another P4,000 on June 15, 1921, and, finally, another P4,000
on December 15, 1921.
The plaintiff alleges four causes of action and upon each of them prays
for judgment against the defendant:
Page 75 of 95
(1) For the sum of P188.96 claimed in the first cause of action,
with legal interest thereon from the date of the filing of the
complaint;
(2) The sum of P5,000 claimed in the second cause of action, with
interest thereon at 12 per cent per annum from the 16th day of
January, 1923, until full payment, together with an additional 10
per cent of the amount due;
(3) For the sum of P5,000 claimed in the third cause of action,
plus interest at the rate of 12 per cent per annum from the 16th
day of January, 1923, until full payment together with an
additional 10 per cent of the amount due;
(4) For the sum of P1,547.35 claimed in the fourth cause of
action, with legal interest thereon from the date of the filing of
the complaint.
The defendant denies generally and specifically the facts alleged in the
complaint, and as a special defense alleges:
(a) That the tractor and threshing machine, which is the subjectmatter of the contract set out in the second paragraph of the first
cause of action and which was sold by the plaintiff company to
the defendant, does not meet the conditions specified and
guaranteed in the aforesaid contract of sale, to wit, (a) the good
operation of the machineries; (b) the new quality of the materials
employed in the construction thereof; and (c) the capacity to
thresh 300 cavans of palay per day, all of which conditions are
specified and guaranteed in subsection (b) of paragraph 2, and in
paragraph 4 of the contract of sale aforesaid.
(b) That in the month of April, 1921, the defendant has notified
the plaintiff of the fact that the threshing machine sold to him
Prof. Avena
Page 76 of 95
Prof. Avena
palay, and harvested more than 3,000 cavans. (That is to say, that his
land yielded 37 cavans per hectare, and an output of from 30 to 40
cavans per hectare is what the parties understand by ordinary palay.) He
affirms that the threshing capacity of the threshing machine was from
170 to 200 cavans per day, and that using said threshing machine it took
him eight days to thresh 1,200 cavans, which means a daily capacity of
150 cavans.
Pablo A. Luciano affirms that the threshing machine threshed 172 cavans
per day in the eight days he used it, during which he threshed 1,232
cavans from the crop he had harvested in that year from his land of 40
hectares, which shows a capacity of 154 cavans per day.
Andres Feliciano affirms having used the threshing machine for sixteen
years during which he threshed 3,000 cavans of palay and that the daily
capacity of the threshing machine is approximately 200 cavans, but then
he adds that the machine did not give more than 100 cavans per day, and
sometimes more than 100 cavans, but he could not tell the exact number
of days during which the machine was used in one or the other case.
Anacleto Tuma testifies that he had harvested from his land of 35
hectares about 17 mandalas, some of which were big and some small.
Fifteen mandalas were threshed by the threshing machine in question in
six days and a half, and gave out 900 cavans, while the other two
mandalas threshed by horses yielded 600 cavans.
Eutiquio Feliciano affirms that the maximum capacity of the threshing
machine in that period was only 160 cavans per day, and it could not
thresh 200 cavans per day. He threshed with the machine in question
2,400 cavans of palay in ten days, which means a daily capacity of 240
cavans.
Without the necessity of going into a minute analysis, the inconsistency
of the evidence of the defendant will easily be noted; so that we cannot
Page 77 of 95
hold erroneous the finding of the trial court which has had the
opportunity to observe the witnesses while they were testifying before
it.
Another error assigned by the appellant is the admission by the lower
court of Exhibit L of the plaintiff, which is a certificate of the Director of
the Bureau of Agriculture as to the average crop of palay produced in the
municipality of Magalang in the 1920-1921 agricultural year, and is as
follows:
I, Adriano Hernandez, Director of the Bureau of Agriculture,
hereby certify that the records of the said Bureau of Agriculture
show that for the crop seasons 1920-1921 there was planted to
palay in the municipality of Magalang, Province of Pampanga,
5,050 hectares and that the average yield per hectare for such
crop seasons was 22 cavanes.
(Sgd.) ADN. HERNANDEZ, Director.
The statistics prepared by the Bureau of Agriculture is chiefly based on
the quarterly reports of the municipal presidents made pursuant to
section 2202 of the Administrative Code, which provides:
The president of each municipality shall, upon forms to be
supplied by the Director of Agriculture, and in such detail as shall
be required by him, make quarterly reports of the condition of
agriculture and live stock in his municipality, and of such other
matters as relate to the development of those interests.
The reports so made shall be submitted to the municipal council,
and, if approved, a copy thereof shall be forwarded to the office
of the provincial governor, a second copy to the representative
from the district, a third copy to the Director of Agriculture, and
Prof. Avena
xxx
xxx
Page 78 of 95
Prof. Avena
SECOND DIVISION
G.R. No. 169958
DEPARTMENT OF JUSTICE SECRETARY RAUL M. GONZALEZ,
BUREAU OF IMMIGRATION COMMISSIONER and BOARD OF
COMMISSIONERS CHAIRMAN ALIPIO F. FERNANDEZ, JR., and
IMMIGRATION ASSOCIATE COMMISSIONERS and BOARD OF
COMMISSIONERS MEMBERS ARTHEL B. CARONONGAN, TEODORO B.
DELARMENTE, JOSE D.L. CABOCHAN, and FRANKLIN Z. LITTUA,
Petitioners,
Vs.
MICHAEL ALFIO PENNISI, Respondent
March 5, 2010
Page 79 of 95
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review[1] assailing the 30
September 2005 Decision[2] of the Court of Appeals in CA-G.R. SP No.
87271.
The Antecedent Facts
The facts, gathered from the Court of Appeals decision, are as
follows:
3.
Certified true copy of Quintos
Australian certificate of registration of alien,
indicating her nationality as Filipino;
4. Certified true copy of respondents birth
certificate stating that he was born on 13 March
1975 and indicating the Philippines as his mothers
birthplace; and
5. Certified true copy of the letter dated 14 July
1999 of the Australian Department of Immigration
and Multicultural Affairs, stating that as of 14 July
1999, Quintos has not been granted Australian
citizenship.
Prof. Avena
Page 80 of 95
Thereafter, respondent was drafted and played for the Red Bull, a
professional basketball team in the Philippine Basketball Association
(PBA).
On 7 August 2003, the Senate Committees on Games, Amusement
and Sports and on Constitutional Amendments (Senate Committees)
jointly submitted Committee Report No. 256[5] (Committee Report)
recommending, among other things, that (1) the BI conduct summary
deportation proceedings against several Filipino-foreign PBA players,
Prof. Avena
Page 81 of 95
Prof. Avena
Page 82 of 95
Prof. Avena
Petitioners allege that the petition filed before the Court of Appeals
should have been dismissed for late filing. Petitioners allege that
respondent only had 15 days from 19 October 2004, the date of receipt
of the 18 October 2004 DOJ Resolution, within which to file a petition for
review before the Court of Appeals. However, respondent filed his
petition only on 4 November 2004, or one day beyond the reglementary
period for filing the petition for review. Petitioners allege that when the
petition was filed, the 18 October 2004 DOJ Resolution had already
lapsed into finality.
Page 83 of 95
We do not agree.
A one-day delay does not justify the appeals dismissal where no
element of intent to delay the administration of justice could be
attributed to the petitioner.[9] The Court has ruled:
The general rule is that the perfection of an appeal in
the manner and within the period prescribed by law is,
not only mandatory, but jurisdictional, and failure to
conform to the rules will render the judgment sought to
be reviewed final and unappealable. By way of exception,
unintended lapses are disregarded so as to give due
course to appeals filed beyond the reglementary period
on the basis of strong and compelling reasons, such as
serving the ends of justice and preventing a grave
miscarriage thereof. The purpose behind the limitation
of the period of appeal is to avoid an unreasonable delay
in the administration of justice and to put an end to
controversies.[10]
Prof. Avena
Page 84 of 95
Prof. Avena
However, the courts are not precluded from reviewing the findings
of the BI. Judicial review is permitted if the courts believe that there is
substantial evidence supporting the claim of citizenship, so substantial
that there are reasonable grounds for the belief that the claim is
correct.[16] When the evidence submitted by a deportee is conclusive of
his citizenship, the right to immediate review should be recognized and
the
courts
should
promptly
enjoin
the
deportation
proceedings.[17] Courts may review the actions of the administrative
offices authorized to deport aliens and reverse their rulings when there
is no evidence to sustain the rulings.[18]
IN THIS CASE, WE SUSTAIN THE COURT OF APPEALS THAT THE
EVIDENCE PRESENTED BEFORE THE BI AND THE DOJ, I.E., (1)
CERTIFIED PHOTOCOPY OF THE CERTIFICATE OF BIRTH OF QUINTOS,
AND A CERTIFICATION ISSUED BY THE LOCAL CIVIL REGISTRAR OF
SAN ANTONIO, NUEVA ECIJA STATING THAT QUINTOS WAS BORN ON
14 AUGUST 1949 OF FILIPINO PARENTS, FELIPE M. QUINTOS AND
CELINA G. TOMEDA, IN PANABINGAN, SAN ANTONIO, NUEVA ECIJA; (2)
CERTIFIED TRUE COPY OF THE CERTIFICATE OF MARRIAGE OF
RESPONDENTS PARENTS DATED 9 JANUARY 1971, INDICATING THE
PHILIPPINES AS QUINTOS BIRTHPLACE; (3) CERTIFIED TRUE COPY OF
QUINTOS AUSTRALIAN CERTIFICATE OF REGISTRATION OF ALIEN,
INDICATING HER NATIONALITY AS FILIPINO; (4) CERTIFIED TRUE
COPY OF RESPONDENTS BIRTH CERTIFICATE STATING THAT HE WAS
BORN ON 13 MARCH 1975 AND INDICATING THE PHILIPPINES AS HIS
MOTHERS BIRTHPLACE; AND (5) CERTIFIED TRUE COPY OF THE
Page 85 of 95
Prof. Avena
Page 86 of 95
[2]Rollo,
Prof. Avena
Sta. Ana v. Carpo, G.R. No. 164340, 28 November 2008, 572 SCRA
463, 477.
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
Page 87 of 95
Prof. Avena
Page 88 of 95
SECOND DIVISION
Factual Antecedents
DECISION
Contrary to law.
DEL CASTILLO, J.:
In a criminal case, factual findings of the trial court are generally accorded
great weight and respect on appeal, especially when such findings are
supported by substantial evidence on record.[1] It is only in exceptional
circumstances, such as when the trial court overlooked material and relevant
matters, that this Court will re-calibrate and evaluate the factual findings of the
court below. In this case, we hold that the trial court did not overlook such
factual matters; consequently, we find no necessity to review, much less,
overturn its factual findings.
This petition for review on certiorari assails the Decision[2] of the Court of
Appeals (CA) dated February 24, 2006 in CA-G.R. CR No. 25069 which affirmed
with modification the Judgment[3] of the Regional Trial Court (RTC) of Aparri,
Cagayan, Branch 06 in Criminal Case No. VI-892 finding petitioner Roo
Seguritan y Jara guilty beyond reasonable doubt of the crime of
homicide. Likewise impugned is the Resolution[4] dated May 23, 2006 which
denied the Motion for Reconsideration.[5]
petitioner
entered
plea
of
not
Prof. Avena
neighboring barangayof Calayan, Cagayan. Upon his arrival, his wife noticed
blood on his forehead. Lucrecio explained that he was stoned, then went
directly to his room and slept.
At around 9 oclock in the evening, Lucrecios wife and daughter noticed
that his complexion has darkened and foamy substance was coming out of his
mouth. Attempts were made to revive Lucrecio but to no avail. He died that
same night.
After the burial of Lucrecio on December 4, 1995, his wife learned of
petitioners involvement in her husbands death. Thus, she sought the
assistance of the National Bureau of Investigation (NBI). NBI Medico-Legal
Officer Dr. Antonio Vertido (Dr. Vertido) exhumed Lucrecios body and
performed the autopsy. Dr. Vertido found hematomas in the scalp located in
the right parietal and left occipital areas, a linear fracture in the right
middle fossa, and a subdural hemorrhage in the right and left cerebral
hemisphere. Dr. Vertido concluded that Lucrecios cause of death was
traumatic head injury.[7]
On May 21, 1996, Melchor executed a sworn statement before the
Gonzaga Police Station recounting the events on that fateful day, including the
punching of Lucrecio by petitioner.
Page 89 of 95
At the time of Lucrecios death, he was 51 years old and earned an annual
income of P14,000.00 as a farmer.
The Decision of the Court of Appeals
The Version of the Defense
Petitioner denied hitting Lucrecio and alleged that the latter died of
cardiac arrest. Petitioner claimed that he suddenly stood up during their
heated argument with the intent to punch Lucrecio. However, since the latter
was seated at the opposite end of the bench, Lucrecio lost his balance and fell
before he could be hit. Lucrecios head hit the improvised stove as a result of
which he lost consciousness.
Prof. Avena
petition
the fracture may also be caused by one falling from a height. Petitioner also
maintains that the punches he threw at Lucrecio had nothing to do with the
fatal head injuries the latter suffered. According to him, Lucrecio sustained the
head injuries when he accidentally hit the hollow block that was used as an
improvised stove, after falling from the opposite end of the bench. Petitioner
insists that Lucrecio died due to a fatal heart attack.
In fine, petitioner contends that the appellate court, in affirming the
judgment of the trial court, overlooked material and relevant factual matters
which, if considered, would change the outcome of the case.
SO ORDERED.[10]
Thus,
issues:
Page 90 of 95
for
review
raising
the
following
I
The Court of Appeals erred in affirming the trial courts
judgment of conviction.
II
The Court of Appeals erred in convicting the accused of the
crime of homicide.[11]
Our Ruling
The petition is denied.
Petitioner disputes the conclusion that the fracture on the right
middle fossa of the skull, beneath the area where a hematoma developed was
due to the blow he delivered because according to the testimony of Dr. Vertido,
Prof. Avena
Court:
Q:
A:
xxxx
Court:
Q:
A:
xxxx
Fiscal Feril:
Q:
Court:
Q:
A:
Fiscal Feril:
Q:
xxxx
Fiscal Feril:
Q:
A:
Page 91 of 95
Prof. Avena
A:
xxxx
Court:
Q:
A:
Page 92 of 95
heart attack before the injuries on the head
were inflicted?
That is why sir, I said, I examined the heart and
I found out that there was noting wrong with
the heart, and why should I insist on further
examining the heart.[16]
Prof. Avena
Page 93 of 95
Prof. Avena
Page 94 of 95
Moral damages was correctly awarded to the heirs of the victim without
need of proof other than the fact that a crime was committed resulting in the
death of the victim and that the accused was responsible therefor.[31] The
award of P50,000.00 as moral damages conforms to existing jurisprudence.[32]
The award of P135,331.00 for the loss of earning capacity was also in
order.[27] The prosecution satisfactorily proved that the victim was earning an
annual income ofP14,000.00 from the harvest of pineapples. Besides, the
defense no longer impugned this award of the trial court.
SO ORDERED.
However, the other awards of damages must be modified. It is error for
the trial court and the appellate court to award actual damages of P30,000.00
for the expenses incurred for the death of the victim. We perused the records
and did not find evidence to support the plea for actual damages. The expenses
incurred in connection with the death, wake and burial of Lucrecio cannot be
sustained without any tangible document to support such claim. While
expenses were incurred in connection with the death of Lucrecio, actual
damages cannot be awarded as they are not supported by receipts.[28]
[1]
[2]
[3]
[4]
In lieu of actual damages, the heirs of the victim can still be awarded
temperate damages. When pecuniary loss has been suffered but the amount
cannot, from the nature of the case, be proven with certainty, temperate
damages may be recovered. Temperate damages may be allowed in cases
where from the nature of the case, definite proof of pecuniary loss cannot be
adduced, although the court is convinced that the aggrieved party suffered
some pecuniary loss.[29] In this regard, the amount of P25,000.00 is in
accordance with recent jurisprudence.[30]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[30]
[31]
[32]
Prof. Avena
Id. at 31-32.
Id. at 37-38.
TSN, December 15, 1998, pp. 41-42.
Id. at 44-45
Rollo, p. 21.
RULES OF COURT, Rule 132, Section 34.
Candido v. Court of Appeals, 323 Phil. 95, 99 (1996).
Id. at 100.
Id.
United States v. Gloria, 3 Phil. 333, 335 (1904).
People v. Ural, 155 Phil. 116, 123 (1974).
People v. San Gabriel, 323 Phil. 102, 108 (1996).
People v. Diaz, 443 Phil. 67, 90-91 (2003).
People v. Satonero, G.R. No. 186233, October 2, 2009.
See People v. Nullan, 365 Phil. 227, 257-258 (1999).
People v. San Gabriel, supra note 24.
Canada v. All Commodities Marketing Corp.,
146141, October 17, 2008, 569 SCRA 321, 329.
People v. Bascugin, G.R. No. 184704, June 30, 2009.
People v. San Gabriel, supra note 24.
People v. Satonero, supra note 26.
G.R.
No.
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