Torts and Damages

1.
Cathay Pacific Airways Ltd. Vs. Sps. Fuentebella
2.
TRAVEL & TOURS ADVISERS, INC v. ALBERTO CRUZ, SR., et al.
G.R. No. 199282, March 14, 2016
PERALTA, J.:
For resolution of this Court is the Petition for Review on Certiorari under Rule 45 of
the Revised Rules of Court dated December 28, 2011, of petitioner Travel & Tours
Advisers, Inc. assailing the Decision1 dated May 16, 2011 and Resolution2 dated
November 10, 2011 of the Court of Appeals (CA), affirming with modifications the
Decision3 dated January 30, 2008 of the Regional Trial Court (RTC), Branch 61,
Angeles City finding petitioner jointly and solidarity liable for damages incurred in a
vehicular accident.
The facts follow.
Respondent Edgar Hernandez was driving an Isuzu Passenger Jitney (jeepney) that
he owns with plate number DSG-944 along Angeles-Magalang Road, Barangay San
Francisco, Magalang, Pampanga, on January 9, 1998, around 7:50 p.m. Meanwhile,.
a Daewoo passenger bus (RCJ Bus Lines) with plate number NXM-116, owned by
petitioner Travel and Tours Advisers, Inc. and driven by Edgar Calaycay travelled in
the same direction as that of respondent Edgar Hernandez vehicle. Thereafter, the
bus bumped the rear portion of the jeepney causing it to ram into an acacia tree
which resulted in the death of Alberto Cruz, Jr. and the serious physical injuries of
Virginia Muoz.
Thus, respondents Edgar Hernandez, Virginia Muoz and Alberto Cruz, Sr., father of
the deceased Alberto Cruz, Jr., filed a complaint for damages, docketed as Civil Case
No. 9006 before the RTC claiming that the collision was due to the reckless,
negligent and imprudent manner by which Edgar Calaycay was driving the bus, in
complete disregard to existing traffic laws, rules and regulations, and praying that
judgment be rendered ordering Edgar Calaycay and petitioner Travel & Tours
Advisers, Inc. to pay the following:
chanRoblesvirtualLawlibrary
1. For plaintiff Alberto Cruz, Sr.
a. The sum of P140,000.00 for the reimbursement of the expenses incurred for
coffin, funeral expenses, for vigil, food, drinks for the internment (sic) of Alberto
Cruz, Jr. as part of actual damages;
b. The sum of P300,000.00, Philippine Currency, as moral, compensatory and
consequential damges.
c. The sum of P6,000.00 a month as lost of (sic) income from January 9, 1998 up to
the time the Honorable Court may fixed (sic);
2. For plaintiff Virginia Muoz:
a. The sum of P40,000.00, Philippine Currency, for the reimbursement of expenses
for hospitalization, medicine, treatment and doctor's fee as part of actual damages;
b. The sum of P150,000.00 as moral, compensatory and consequential damages;
3. For plaintiff Edgar Hernandez:
a. The sum of P42,400.00 for the damage sustained by plaintiffs Isuzu Passenger
Jitney as part of actual damages, plus P500.00 a day as unrealized net income for
four (4) months;
b. The sum of P150,000.00, Philippine Currency, as moral, compensatory and
consequential damages;
4. The sum of P50,000.00 pesos, Philippine Currency, as attorney's fees, plus
P1,000.00 per appearance fee in court;
5. Litigation expenses in the sum of P30,000.00; and
6. To pay the cost of their suit.
Other reliefs just and equitable are likewise prayed for.4ChanRoblesVirtualawlibrary
For its defense, the petitioner claimed that it exercised the diligence of a good
father of a family in the selection and supervision of its employee Edgar Calaycay
and further argued that it was Edgar Hernandez who was driving his passenger
jeepney in a reckless and imprudent manner by suddenly entering the lane of the
petitioner's bus without seeing to it that the road was clear for him to enter said
lane. In addition, petitioner alleged that at the time of the incident, Edgar
Hernandez violated his franchise by travelling along an unauthorized line/route and
that the jeepney was overloaded with passengers, and the deceased Alberto Cruz,
Jr. was clinging at the back thereof.
On January 30, 2008, after trial on the merits, the RTC rendered judgment in favor of
the respondents, the dispositive portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered ordering the
defendants Edgar Calaycay Ranese and Travel & Tours Advisers, Inc. to jointly and
solidarity pay the following:
I. 1. To plaintiff Alberto Cruz, Sr. and his family a) the sum of P50,000.00 as actual and compensatory damages;
b) the sum of P250,000.00 for loss of earning capacity of the decedent Alberto Cruz,
Jr. and;
c) the sum of P50,000.00 as moral damages.

2. To plaintiff Virginia Muoz a) the sum of P16,744.00 as actual and compensatory damages; and
b) the sum of P150,000.00 as moral damages.
3. To Edgar Hernandez a) the sum of P50,000.00 as actual and compensatory damages.
II. The sum of P50,000.00 as attorney's fees, and
III. The sum of P4,470.00 as cost of litigation
SO ORDERED.
Angeles City, Philippines, January 30, 2008.5ChanRoblesVirtualawlibrary
Petitioner filed its appeal with the CA, and on May 16, 2011, the appellate court
rendered its decision, the decretal portion of which reads as follows:
WHEREFORE, the instant appeal is PARTLY GRANTED. The assailed Decision of the
RTC, Branch 61, Angeles City, dated January 30, 2008, is AFFIRMED with
MODIFICATIONS. The defendants are ordered to pay, jointly and severally, the
following:
1. To plaintiff Alberto Cruz, Sr. and family a) the sum of P25,000.00 as actual damages;
b) the sum of P250.000.00 for the loss of earning capacity of the decedent Alberto
Cruz, Jr.;
c) the sum of P50,000.00 as civil indemnity for the death of Alberto Cruz, Jr.;
d) the sum of P50,000.00 as moral damages.
2. To plaintiff Virginia Muoz a) the sum of P16,744.00 as actual damages; and
b) the sum of P30,000.00 as moral damages.
3. To plaintiff Edgar Hernandez a) The sum of P40,200.00 as actual damages.
4. The award of attorney's fees (P50,000.00) and cost of litigation (P4,470.00)
remains.
SO ORDERED.6ChanRoblesVirtualawlibrary
Hence, the present petition wherein the petitioner assigned the following errors:
I.
THE PETITIONER'S BUS WAS NOT "OUT OF LINE;"

II.
THE FACT THAT THE JEEPNEY WAS BUMPED ON ITS LEFT REAR PORTION DOES NOT
PREPONDERANTLY PROVE THAT THE DRIVER OF THE BUS WAS THE NEGLIGENT
PARTY;
III.
THE DECEASED ALBERTO CRUZ, JR. WAS POSITIONED AT THE RUNNING BOARD OF
THE JEEPNEY;
IV.
THE BUS DRIVER WAS NOT SPEEDING OR NEGLIGENT WHEN HE FAILED TO STEER
THE BUS TO A COMPLETE STOP;
V.
THE PETITIONER EXERCISED EXTRAORDINARY DILIGENCE OF A GOOD FATHER OF A
FAMILY IN ITS SELECTION AND SUPERVISION OF DRIVER CALAYCAY; AND
VI.
THERE IS NO FACTUAL AND LEGAL BASIS FOR THE VARIOUS AWARDS OF MONETARY
DAMAGES.7ChanRoblesVirtualawlibrary
According to petitioner, contrary to the declaration of the RTC, the petitioner's
passenger bus was not "out-of-line" and that petitioner is actually the holder of a
PUB (public utility bus) franchise for provincial operation from Manila-Ilocos
Norte/Cagayan-Manila, meaning the petitioner's passenger bus is allowed to
traverse any point between Manila-Ilocos Norte/Cagayan-Manila. Petitioner further
asseverates that the fact that the driver of the passenger bus took the Magalang
Road instead of the Bamban Bridge is of no moment because the bridge was under
construction due to the effects of the lahar; hence closed to traffic and the
Magalang Road is still in between the points of petitioner's provincial operation.
Furthermore, petitioner claims that the jeepney was traversing a road way out of its
allowed route, thus, the presumption that respondent Edgar Hernandez was the
negligent party.
Petitioner further argues that respondent Edgar Hernandez failed to observe that
degree of care, precaution and vigilance that his role as a public utility called for
when he allowed the deceased Alberto Cruz, Jr., to hang on to the rear portion of the
jeepney.
After due consideration of the issues and arguments presented by petitioner, this
Court finds no merit to grant the petition.
Jurisprudence teaches us that "(a)s a rule, the jurisdiction of this Court in cases
brought to it from the Court of Appeals x x x is limited to the review and revision of
errors of law allegedly committed by the appellate court, as its findings of fact are
deemed conclusive. As such, this Court is not duty-bound to analyze and weigh all
over again the evidence already considered in the proceedings below.8 This rule,
however, is not without exceptions."9 The findings of fact of the Court of Appeals,
which are, as a general rule, deemed conclusive, may admit of review by this
Court:10
(1) when the factual findings of the Court of Appeals and the trial court are
contradictory;
(2) when the findings are grounded entirely on speculation, surmises, or
conjectures;
(3) when the inference made by the Court of Appeals from its findings of fact is
manifestly mistaken, absurd, or impossible;
(4) when there is grave abuse of discretion in the appreciation of facts;
(5) when the appellate court, in making its findings, goes beyond the issues of the
case, and such findings are contrary to the admissions of both appellant and
appellee;
(6) when the judgment of the Court of Appeals is premised on a misapprehension of
facts;
(7) when the Court of Appeals fails to notice certain relevant facts which, if properly
considered, will justify a different conclusion;
(8) when the findings of fact are themselves conflicting;
(9) when the findings of fact are conclusions without citation of the specific
evidence on which they are based; and
(10) when the findings of fact of the Court of Appeals are premised on the absence
of evidence but such findings are contradicted by the evidence on record.
The issues presented are all factual in nature and do not fall under any of the
exceptions upon which this Court may review. Moreover, well entrenched is the
prevailing jurisprudence that only errors of law and not of facts are reviewable by
this Court in a petition for review on certiorari under Rule 45 of the Revised Rules of
Court, which applies with greater force to the Petition under consideration because
the factual findings by the Court of Appeals are in full agreement with what the trial
court found.11
Nevertheless, a review of the issues presented in this petition would still lead to the
finding that petitioner is still liable for the damages awarded to the respondents but
with certain modifications.
The RTC and the CA are one in finding that both vehicles were not in their
authorized routes at the time of the incident. The conductor of petitioner's bus
admitted on cross-examination that the driver of the bus veered off from its usual
route to avoid heavy traffic. The CA thus observed:
First. As pointed out in the assailed Decision, both vehicles were not in their
authorized routes at the time of the mishap. FRANCISCO TEJADA, the conductor of
defendant-appellant's bus, admitted on cross-examination that the driver of the bus
passed through Magalang Road instead of Sta. Ines, which was the usual route,
thus:
xxx
Q: What route did you take from Manila to Laoag, Ilocos Sur?
A: Instead of Sta. Ines, we took Magalang Road, sir.
Q: So that is not your usual route that you are taking?
A: No, sir, it so happened that there was heavy traffic at Bamban, Tarlac, that is why
we took the Magalang Road.
xxx
The foregoing testimony of defendant-appellant's own witness clearly belies the
contention that its driver took the Magalang Road instead of the Bamban Bridge
because said bridge was closed and under construction due to the effects of lahar.
Regardless of the reason, however, the irrefutable fact remains that defendantappellant's bus likewise veered from its usual route.12ChanRoblesVirtualawlibrary
Petitioner now claims that the bus was not out of line when the vehicular accident
happened because the PUB (public utility bus) franchise that the petitioner holds is
for provincial operation from Manila-Ilocos Norte/Cagayan-Manila, thus, the bus is
allowed to traverse any point between Manila-Ilocos Norte/Cagayan-Manila. Such
assertion is correct. "Veering away from the usual route" is different from being "out
of line." A public utility vehicle can and may veer away from its usual route as long
as it does not go beyond its allowed route in its franchise, in this case, Manila-Ilocos
Norte/Cagayan-Manila. Therefore, the bus cannot be considered to have violated the
contents of its franchise. On the other hand, it is indisputable that the jeepney was
traversing a road out of its allowed route. Necessarily, this case is not that of "in
pari delicto" because only one party has violated a traffic regulation. As such, it
would seem that Article 2185 of the New Civil Code is applicable where it provides
that:
Art. 2185. Unless there is proof to the contrary, it is presumed that a person driving
a motor vehicle has been negligent if at the time of the mishap, he was violating
any traffic regulation.
The above provision, however, is merely a presumption. From the factual findings of
both the RTC and the CA based on the evidence presented, the proximate cause of
the collision is the negligence of the driver of petitioner's bus. The jeepney was
bumped at the left rear portion. Thus, this Court's past ruling,13 that drivers of
vehicles who bump the rear of another vehicle are presumed to be the cause of the
accident, unless contradicted by other evidence, can be applied. The rationale
behind the presumption is that the driver of the rear vehicle has full control of the
situation as he is in a position to observe the vehicle in front of him.14 Thus, as

found by the CA:
Second. The evidence on record preponderantly shows that it was the negligence of
defendant-appellant's driver, EDGAR CALAYCAY, that was the proximate cause of
the collision.
Even without considering the photographs (Exhibit "N", " " and "N-2") showing the
damage to the jeepney, it cannot be denied that the said vehicle was bumped in its
left rear portion by defendant-appellant's bus. The same was established by the
unrebutted testimonies of plaintiffs-appellees EDGAR HERNANDEZ and VIRGINIA
MUOZ, as follows:
EDGAR HERNANDEZ
xxx
Q: Now, according to you, you were not able to reach the town proper of Magalang
because your vehicle was bumped. In what portion of your vehicle was it bumped,
Mr. Witness?
A: At the left side edge portion of the vehicle, sir.
Q: When it was bumped on the rear left side portion, what happened to your
vehicle?
A: It was bumped strongly, sir, and then, "sinulpit ya", sir.
Q: When your vehicle was "sinulpit" and hit an acacia tree, what happened to the
acacia tree?
A: The jeepney stopped and Alberto Cruz died and some of my passengers were
injured, sir.
xxx
VIRGINIA MUOZ
xxx
Q: what portion of the vehicle wherein you were boarded that was hit by the Travel
Tours Bus?
A: The rear portion of the jeep, sir.
Q: It was hit by the Travel Tours Bus?
A: Yes, sir.
Q: What happened to you when the vehicle was bumped?
A: I was thrown off the vehicle, sir.
xxx
It has been held that drivers of vehicles "who bump the rear of another vehicle" are
presumed to be "the cause of the accident, unless contradicted by other evidence."
The rationale behind the presumption is that the driver of the rear vehicle has full
control of the situation as he is in a position to observe the vehicle in front of him.
In the case at bar, defendant-appellant failed to overturn the foregoing
presumption. FRANCISCO TEJADA, the conductor of the bus who was admittedly
"seated in front, beside the driver's seat," and thus had an unimpeded view of the
road, declared on direct examination that the jeepney was about 10 to 15 meters
away from the bus when he first saw said vehicle on the road. Clearly, the bus
driver, EDGAR CALAYCAY, would have also been aware of the presence of the
jeepney and, thus, was expected to anticipate its movements.
However, on cross-examination, TEJADA claimed that the jeepney "suddenly
appeared" before the bus, passing it diagonally, and causing it to be hit in its left
rear side. Such uncorroborated testimony cannot be accorded credence by this
Court because it is inconsistent with the physical evidence of the actual damage to
the jeepney. On this score, We quote with approval the following disquisition of the
trial court:
x x x (F)rom the evidence presented, it was established that it was the driver of the
RCJ Line Bus which was negligent and recklessly driving the bus of the defendant
corporation.
Francisco Tejada, who claimed to be the conductor of the bus, testified that it was
the passenger jeepney coming from the pavement which suddenly entered
diagonally the lane of the bus causing the bus to hit the rear left portion of the
passenger jeepney. But such testimony is belied by the photographs of the jeepney
(Exhs. N and N-1). As shown by Exh. N-1, the jeepney was hit at the rear left portion
and not when the jeepney was in a diagonal position to the bus otherwise, it should
have been the left side of the passenger jeepney near the rear portion that could
have been bumped by the bus. It is clear from Exh. N-1 and it was even admitted
that the rear left portion of the passenger jeepney was bumped by the bus. Further,
if the jeepney was in diagonal position when it was hit by the bus, it should have
been the left side of the body of the jeepney that could have sustained markings of
such bumping. In this case, it is clear that it is the left rear portion of the jeepney
that shows the impact of the markings of the bumping. The jeepney showed that it
had great damage on the center of the front portion (Exh. N-2). It was the center of
the front portion that hit the acacia tree (Exh. N). As admitted by the parties, both
vehicles were running along the same direction from west to east. As testified to by
Francisco Tejada, the jeepney was about ten (10) to fifteen (15) meters away from
the bus when he noticed the jeepney entering diagonally the lane of the bus. If this
was so, the middle left side portion of the jeepney could have been hit, not the rear
portion. The evidence is clear that the bus was in fast running condition, otherwise,
it could have stopped to evade hitting the jeepney. The hitting of the acacia tree by
the jeepney, and the damages caused on the jeepney in its front (Exh. N-2) and on
its rear left side show that the bus was running very fast.
xxxx
Assuming ex gratia argumenti that the jeepney was in a "stop position," as claimed
by defendant-appellant, on the pavement of the road 10 to 15 meters ahead of the
bus before swerving to the left to merge into traffic, a cautious public utility driver
should have stepped on his brakes and slowed down. The distance of 10 to 15
meters would have allowed the bus with slacked speed to give way to the jeepney
until the latter could fully enter the lane. Obviously, as correctly found by the court
a quo, the bus was running very fast because even if the driver stepped on the
brakes, it still made contact with the jeepney with such force that sent the latter
vehicle crashing head-on against an acacia tree. In fact, FRANCISCO TEJADA
effectively admitted that the bus was very fast when he declared that the driver
"could not suddenly apply the break (sic) in full stop because our bus might turn
turtle xxx." Incidentally, the allegation in the appeal brief that the driver could not
apply the brakes with force because of the possibly that the bus might turn turtle
"as they were approaching the end of the gradient or the decline of the sloping
terrain or topography of the roadway" was only raised for the first time in this
appeal and, thus, may not be considered. Besides, there is nothing on record to
substantiate the same.
Rate of speed, in connection with other circumstances, is one of the principal
considerations in determining whether a motorist has been reckless in driving a
vehicle, and evidence of the extent of the damage caused may show the force of
the impact from which the rate of speed of the vehicle may be modestly inferred.
From the evidence presented in this case, it cannot be denied that the bus was
running very fast. As held by the Supreme Court, the very fact of speeding is
indicative of imprudent behavior, as a motorist must exercise ordinary care and
drive at a reasonable rate of speed commensurate with the conditions encountered,
which will enable him to keep the vehicle under control and avoid injury to others
using the highway.15ChanRoblesVirtualawlibrary
From the above findings, it is apparent that the proximate cause of the accident is
the petitioner's bus and that the petitioner was not able to present evidence that
would show otherwise. Petitioner also raised the issue that the deceased passenger,
Alberto Cruz, Jr. was situated at the running board of the jeepney which is a
violation of a traffic regulation and an indication that the jeepney was overloaded
with passengers. The CA correctly ruled that no evidence was presented to show the
same, thus:
That the deceased passenger, ALBERTO CRUZ, JR., was clinging at the back of the
jeepney at the time of the mishap cannot be gleaned from the testimony of
plaintifff-appellee VIRGINIA MUOZ that it was she who was sitting on the left
rearmost of the jeepney.
VIRGINIA MUOZ herself testified that there were only about 16 passengers on
board the jeepney when the subject incident happened. Considering the testimony
of plaintiff-appellee EDGAR HERNANDEZ that the seating capacity of his jeepney is
20 people, VIRGINIA'S declaration effectively overturned defendant-appellant's
defense that plaintiff-appellee overloaded his jeepney and allowed the deceased
passenger to cling to the outside railings. Yet, curiously, the defense declined to
cross-examine VIRGINIA, the best witness from whom defendant-appellant could
have extracted the truth about the exact location of ALBERTO CRUZ, JR. in or out of
the jeepney. Such failure is fatal to defendant-appellant's case. The only other
evidence left to support its claim is the testimony of the conductor, FRANCISCO
TEJADA, that there were 3 passengers who were clinging to the back of the jeepney,
and it was the passenger clinging to the left side that was bumped by the bus.
However, in answer to the clarificatory question from the court a quo, TEJADA
admitted that he did not really see what happened, thus:
Q: What happened to the passenger clinging to the left side portion?
A: He was bumped, your Honor.
Q: Why, the passenger fell?
A: I did not really see what happened, Mam [sic], what I know he was bumped.
This, despite his earlier declaration that he was seated in front of the bus beside the
driver's seat and knew what happened to the passengers who were clinging to the
back of the jeepney. Indubitably, therefore, TEJADA was not a credible witness, and
his testimony is not worthy of belief.16ChanRoblesVirtualawlibrary
Consequently, the petitioner, being the owner of the bus and the employer of the
driver, Edgar Calaycay, cannot escape liability. Article 2176 of the Civil Code
provides:
Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done. Such fault or negligence, if there
is no pre-existing contractual relation between the parties, is called a quasi-delict
and is governed by the provisions of this Chapter.
Complementing Article 2176 is Article 2180 which states the following:
The obligation imposed by Article 2176 is demandable not only for one's own acts or
omissions, but also for those of persons for whom one is responsible x x x.
Employers shall be liable for the damages caused by their employees and
household helpers acting within the scope of their assigned tasks, even though the
former are not engaged in any business or industry x x x.
The responsibility treated of in this article shall cease when the persons herein
mentioned prove that they observed all the diligence of a good father of a family to
prevent damage.
Article 2180, in relation to Article 2176, of the Civil Code provides that the employer
of a negligent employee is liable for the damages caused by the latter. When an
injury is caused by the negligence of an employee there instantly arises a
presumption of the law that there was negligence on the part of the employer either
in the selection of his employee or in the supervision over him after such selection.
The presumption, however, may be rebutted by a clear showing on the part of the
employer that it had exercised the care and diligence of a good father of a family in
the selection and supervision of his employee. Hence, to escape solidary liability for
quasi-delict committed by an employee, the employer must adduce sufficient proof
that it exercised such degree of care.17 In this case, the petitioner failed to do so.
The RTC and the CA exhaustively and correctly ruled as to the matter, thus:
Thus, whenever an employee's (defendant EDGAR ALAYCAY) negligence causesdamage or injury to another, there instantly arises a presumption that the employer
(defendant-appellant) failed to exercise the due diligence of a good father of the
family in the selection or supervision of its employees. To avoid liability for a quasidelict committed by its employee, an employer must overcome the presumption by
presenting convincing proof that it exercised the care and diligence of a good father
of a family in the selection and supervision of its employee. The failure of the
defendant-appellant to overturn this presumption was meticulously explained by the

court a quo as follows:
The position of the defendant company that it cannot be held jointly and severally
liable for such damages because it exercised the diligence of a good father of a
family, that (sic) does not merit great credence.
As admitted, Edgar Calaycay was duly authorized by the defendant company to
drive the bus at the time of the incident. Its claim that it has issued policies, rules
and regulation's to be followed, conduct seminars and see to it that their drivers
and employees imbibe such policies, rules and regulations, have their drivers and
conductors medically checked-up and undergo drug-testing, did not show that all
these rudiments were applied to Edgar Calaycay. No iota of evidence was presented
that Edgar Calaycay had undergone all these activities to ensure that he is a safe
and capable drivers [sic]. In fact, the defendant company did not put up a defense
on the said driver. The defendant company did not even secure a counsel to defend
the driver. It did not present any evidence to show it ever counseled such driver to
be careful in his driving. As appearing from the evidence of the defendant
corporation, the driver at the time of the incident was Calaycay Francisco (Exh. 9)
and the conductor was Tejada. This shows that the defendant corporation does not
exercise the diligence of a good father of a family in the selection and supervision of
the employees. It does not even know the correct and true name of its drivers. The
testimony of Rolando Abadilla, Jr. that they do not have the records of Edgar
Calaycay because they ceased operation due to the death of his father is not
credible. Why only the records of Edgar Calaycay? It has the inspection and
dispatcher reports for January 9, 1998 and yet it could not find the records of Edgar
Calaycay. As pointed out by the Supreme Court in a line of cases, the evidence must
not only be credible but must come from a credible witness. No proof was submitted
that Edgar Calaycay attended such alleged seminars and examinations. Thus, under
Art. 2180 of the Civil Code, Employers shall be liable for the damage caused by their
employees and household helper acting within the scope of their assigned tasks,
even though the former are not engaged in any business or industry. The liability of
the employer for the tortuous acts or negligence of its employer [sic] is primary and
solidary, direct and immediate, and not conditional upon the insolvency of prior
recourse against the negligent employee. The cash voucher for the alleged lecture
on traffic rules and regulations (Exh. 12) presented by the defendant corporation is
for seminar allegedly conducted on May 20 and 21, 1995 when Edgar Calaycay was
not yet in the employ of the defendant corporation. As testified to by Rolando
Abadilla, Jr., Edgar Calaycay stated his employment with the company only in 1996.
Rolando Abadilla, Jr. testified that copies of the manual (Exh. 8) are given to the
drivers and conductors for them to memorize and know the same, but no proof was
presented that indeed Edgar Calaycay was among the recipients. Nobody testified
categorically that indeed Edgar Calaycay underwent any of the training before
being employed by the defendant company. All the testimonies are generalizations
as to the alleged policies, rules and regulations but no concrete evidence was
presented that indeed Edgar Calaycay underwent such familiarization, trainings and
seminars before he got employed and during that time that he was performing his
duties as a bus driver of the defendant corporation. Moreover, the driver's license of
the driver was not even presented. These omissions did not overcome the liability of
the defendant corporation under Article 2180 of the Civil Code. x x x
The observation of the court a quo that defendant-appellant failed to show proof
that EDGAR CALAYCAY did in fact undergo the seminars conducted by it assumes
greater significance when viewed in the light of the following admission made by
ROLANDO ABADILLA, JR., General Manager of the defendant-appellant corporation,
that suggest compulsory attendance of said seminars only among drivers and
conductors in Manila, thus:
xxxx
Q: How many times does (sic) the seminars being conducted by your company a
year?
A: Normally, it is a minimum of two (2) seminars per year, sir.
Q: In these seminars that you conduct, are all drivers and conductors obliged to
attend?
A: Yes, sir, if they are presently in Manila.
Q: It is only in Manila that you conduct seminars?
A: Yes, sir.
xxx
Moreover, with respect to the selection process, ROLANDO ABADILLA, JR.
categorically admitted in open court that EDGAR CALAYCAY was not able to produce
the clearances required by defendant-appellant upon employment, thus:
xxxx
Q: By the way, Mr. Witness, do you know this Edgar Calaycay who was once
employed by your company as a driver?
A: Yes, sir.
Q: Have you seen the application of Edgar Calaycay?
A: Yes, sir.
Q: From what I have seen, what documents did he submit in applying as a driver in
your business?
Atty. De Guzman: Very leading, your Honor.
Q: Before a driver could be accepted, what document is he required to submit?
A: The company application form; NBI clearance; police clearance; barangay
clearance; mayor's clearance and other clearances, sir.
Q: Was he able to reproduce these clearances by Mr. Calaycay?
A: No, sir.
x x x18ChanRoblesVirtualawlibrary
In the selection of prospective employees, employers are required to examine them
as to their qualifications, experience, and service records.19 On the other hand, due
diligence in the supervision of employees includes the formulation of suitable rules
and regulations for the guidance of employees, the issuance of proper instructions
intended for the protection of the public and persons with whom the employer has
relations through his or its employees and the imposition of necessary disciplinary
measures upon employees in case of breach or as may be warranted to ensure the
performance of acts indispensable to the business of and beneficial to their
employer. To this, we add that actual implementation and monitoring of consistent
compliance with said rules should be the constant concern of the employer, acting
through dependable supervisors who should regularly report on their supervisory
functions.20 In this case, as shown by the above findings of the RTC, petitioner was
not able to prove that it exercised the required diligence needed in the selection
and supervision of its employee.
Be that as it may, this doesn't erase the fact that at the time of the vehicular
accident, the jeepney was in violation of its allowed route as found by the RTC and
the CA, hence, the owner and driver of the jeepney likewise, are guilty of negligence
as defined under Article 2179 of the Civil Code, which reads as follows:
When the plaintiffs negligence was the immediate and proximate cause of his injury,
he cannot recover damages. But if his negligence was only contributory, the
immediate and proximate cause of the injury being the defendant's lack of due care,
the plaintiff may recover damages, but the courts shall mitigate the damages to be
awarded.
The petitioner and its driver, therefore, are not solely liable for the damages caused
to the victims. The petitioner must thus be held liable only for the damages actually
caused by his negligence.21 It is, therefore, proper to mitigate the liability of the
petitioner and its driver. The determination of the mitigation of the defendant's
liability varies depending on the circumstances of each case.22 The Court had
sustained a mitigation of 50% in Rakes v. AG & P;23 20% in Phoenix Construction,
Inc. v. Intermediate Appellate Court24 and LBC Air Cargo, Inc. v. Court of Appeals;25
and 40% in Bank of the Philippine Islands v. Court of Appeals26 and Philippine Bank
of Commerce v. Court of Appeals.27cralawred
In the present case, it has been established that the proximate cause of the death
of Alberto Cruz, Jr. is the negligence of petitioner's bus driver, with the contributory
negligence of respondent Edgar Hernandez, the driver and owner of the jeepney,
hence, the heirs of Alberto Cruz, Jr. shall recover damages of only 50% of the award
from petitioner and its driver. Necessarily, 50% shall be bourne by respondent Edgar
Hernandez. This is pursuant to Rakes v. AG & P and after considering the
circumstances of this case.
In awarding damages for the death of Alberto Cruz, Jr., the CA ruled as follows:
For the death of ALBERTO CRUZ, JR. the court a quo awarded his heirs P50,000.00
as actual and compensatory damages; P250,000.00 for loss of earning capacity;
and another P50,000.00 as moral damages. However, as pointed out in the assailed
Decision dated January 30, 2008, only the amount paid (P25,000.00) for funeral
services rendered by Magalena Memorial Home was duly receipted (Exhibit "E-1"). It
is settled that actual damages must be substantiated by documentary evidence,
such as receipts, in order to prove expenses incurred as a result of the death of the
victim. As such, the award for actual damages in the amount of P50,000.00 must be
modified accordingly.
Under Article 2206 of the Civil Code, the damages for death caused by a quasidelict shall, in addition to the indemnity for the death itself which is fixed by current
jurisprudence at P50,000.00 and which the court a quo failed to award in this case,
include loss of the earning capacity of the deceased and moral damages for mental
anguish by reason of such death. The formula for the computation of loss of earning
capacity is as follows:
Net earning capacity = Life expectancy x [Gross Annual Income - Living Expenses
(50% of gross annual income)], where life expectancy = 2/3 (80 - the age of the
deceased)
Evidence on record shows that the deceased was earning P6,000.00 a month as
smoke house operator at Pampanga's Best, Inc., as per Certification (Exhibit "K")
issued by the company's Production Manager, Enrico Ma. O. Hizon, on March 18,
1998, His gross income therefore amounted to P72,000.00 [P6,000.00 x 12].
Deducting 50% therefrom (P36,000.00) representing the living expenses, his net
annual income amounted to P36,000.00. Multiplying this by his life expectancy of
40.67 years [2/3(80-19)] having died at the young age of 19, the award for loss of
earning capacity should have been P1,464,000.00. Considering, however, that his
heirs represented by his father, ALBERTO CRUZ, SR., no longer appealed from the
assailed Decision dated January 30, 2008, and no discussion thereon was even
attempted in plaintiffs-appellees' appeal brief, the award for loss of earning capacity
in the amount of P250,000.00 stands.
Moral damages in the amount of P50,000.00 is adequate and reasonable, bearing in
mind that the purpose for making such award is not to enrich the heirs of the victim
but to compensate them however inexact for injuries to their feelings.
xxx28ChanRoblesVirtualawlibrary
In summary, the following were awarded to the heirs of Alberto Cruz, Jr.:
1) P25,000.00 as actual damages;
2) P250,000.00 for the loss of earning;
3) P50,000.00 as civil indemnity for the death of Alberto Cruz, Jr.; and
4) P50,000.00 as moral damages
Petitioner contends that the CA erred in awarding an amount for the loss of earning
capacity of Alberto Cruz, Jr. It claims that the certification from the employer of the
deceased stating that when he was still alive - he earned P6,000.00 per month was
not presented and identified in open court.
In that aspect, petitioner is correct. The records are bereft that such certification
was presented and identified during the trial. It bears stressing that compensation
for lost income is in the nature of damages and as such requires due proof of the
damages suffered; there must be unbiased proof of the deceased's average

income.29
Therefore, applying the above disquisitions, the heirs of Alberto Cruz, Jr. shall now
be awarded the following:
1) P12,500.00 as actual damages;
2) P25,000.00 as civil indemnity for the death of Alberto Cruz, Jr., and
3) P25,000.00 as moral damages.
In the same manner, petitioner is also partly responsible for the injuries sustained
by respondent Virginia Muoz hence, of the P16,744.00 actual damages and
P30,000.00 moral damages awarded by the CA, petitioner is liable for half of those
amounts. Anent respondent Edgar Hernandez, due to his contributory negligence,
he is only entitled to receive half the amount (P40,200.00) awarded by the CA as
actual damages which is P20,100.00.
As to the award of attorney's fees, it is settled that the award of attorney's fees is
the exception rather than the general rule; counsel's fees are not awarded every
time a party prevails in a suit because of the policy that no premium should be
placed on the right to litigate. Attorney's fees, as part of damages, are not
necessarily equated to the amount paid by a litigant to a lawyer. In the ordinary
sense, attorney's fees represent the reasonable compensation paid to a lawyer by
his client for the legal services he has rendered to the latter; while in its
extraordinary concept, they may be awarded by the court as indemnity for damages
to be paid by the losing party to the prevailing party. Attorney's fees as part of
damages are awarded only in the instances specified in Article 220830 of the Civil
Code. As such, it is necessary for the court to make findings of fact and law that
would bring the case within the ambit of these enumerated instances to justify the
grant of such award, and in all cases it must be reasonable.31 In this case, the RTC,
in awarding attorney's fees, reasoned out that [w]hile there is no document
submitted to prove that the plaintiffs spent attorney's fees, it is clear that they paid
their lawyer in the prosecution of this case for which they are entitled to the
same.32 Such reason is conjectural and does not justify the grant of the award,
thus, the attorney's fees should be deleted. However, petitioner shall still have to
settle half of the cost of the suit.chanrobleslaw
WHEREFORE, the Petition for Review on Certiorari under Rule 45, dated December
28, 2011, of petitioner Travel & Tours Advisers, Inc. is DENIED. However, the
Decision dated May 16, 2011 of the Court of Appeals is MODIFIED as follows:
The petitioner and Edgar Calaycay are ORDERED to jointly and severally PAY the
following:
1. To respondent Alberto Cruz, Sr. and family:
a) P12,500.00 as actual damages;
b) P25,000.00 as civil indemnity for the death of Alberto Cruz, Jr., and
c) P25,000.00 as moral damages.

2. To respondent Virginia Muoz:
b) P15,000.00 as moral damages.
3. To respondent Edgar Hernandez:
a) P20,100.00 as actual damages, and
4. The sum of P2,235.00 as cost of litigation.
Respondent Edgar Hernandez is also ORDERED to PAY the following:
1. To respondent Alberto Cruz, Sr. and family:
b) P25,000.00 as civil indemnity for the death of Alberto Cruz, Jr., and
c) P25,000.00 as moral damages.
2. To respondent Virginia Muoz:
b) P15,000.00 as moral damages, and
3. The sum of P2,235.00 as cost of litigation.
SO ORDERED.
Velasco,
Jr.,
(Chairperson),
concur.chanroblesvirtuallawlibrary
Perez,
Reyes,
and
Jardeleza,
JJ.,
Endnotes:
5.
G.R. No. 188213
NATIVIDAD C. CRUZ and BENJAMIN DELA CRUZ, Petitioners,
vs.
PANDACAN HIKER'S CLUB, INC., Represented by its President, PRISCILA ILAO,
Respondent.
DECISION
PERALTA, J.:
Before the Court is a petition for review on certiorari under Rule 45 of the Rules of
Court seeking to ahnul and set aside the Court of Appeals Decision1 dated March
31, 2008 in CA-G.R. SP. No. 104474. The appellate court reversed and set aside the
earlier decision of the Office of the Ombudsman dismissing the complaint filed
against petitioners.
Below are the facts of the case.
Petitioner Natividad C. Cruz (Cruz) was
Barangay 848, Zone 92, City of Manila.2 On
in the afternoon, and along Central Street,
her barangay, she allegedly confronted
following statements:
Punong Barangay or Chairperson of

November 10, 2006, around five o'clock
Pandacan, Manila, within the vicinity of
persons playing basketball with the
Bakit nakabukas ang (basketball) court? Wala kayong karapatang maglaro sa court
na 'to, barangay namin ito! xxx xxx xxx Wala kayong magagawa. Ako ang chairman
dito. Mga walanghiya kayo, patay gutom! Hindi ako natatakot! Kaya kong
panagutan lahat!3
Then, she allegedly gave an order to the other petitioner, Barangay Tanod Benjamin
dela Cruz (Dela Cruz), to destroy the basketball ring by cutting it up with a hacksaw
which Dela Cruz promptly complied with, thus, rendering the said basketball court
unusable.4
The acts of petitioners prompted the filing of a Complaint (for Malicious Mischief,
Grave Misconduct, Conduct Prejudicial to the Best Interest of the Service and Abuse
of Authority)5 before the Prosecutor's Office and the Office of the Ombudsman by
the group that claims to be the basketball court's owners, herein respondents
Pandacan Hiker's Club, Inc. (PHC) and its president Priscila Ilao (Ilao). In the
complaint, they alleged that PHC, a non-stock, non-profit civic organization engaged
in "health, infrastructure, sports and other so-called poverty alleviation activities" in
the Pandacan area of Manila, is the group that had donated, administered and
operated the subject basketball court for the Pandacan community until its alleged
destruction by petitioners.6
The complaint averred that the damage caused by petitioners was in the amount of
around P2,000.00. It was supported by the affidavits of ten (10) members of PHC
who allegedly witnessed the destruction. Meanwhile, respondent Ilao added that the
acts of petitioner Cruz, the Barangay Chairperson, of ordering the cutting up of the
basketball ring and uttering abusive language were "unwarranted and unbecoming
of a public official."7
In answer to the complaint, Cruz alleged that the basketball court affected the
peace in the barangay and was the subject of many complaints from residents
asking for its closure. She alleged that the playing court blocked jeepneys from
passing through and was the site of rampant bettings and fights involving persons
from within and outside the barangays. She claimed that innocent persons have
been hurt and property had been damaged by such armed confrontations, which
often involved the throwing of rocks and improvised "molotov" bombs. She also
averred that noise from the games caused lack of sleep among some residents and
that the place's frequent visitors used the community's fences as places to urinate.
Cruz maintained that the court's users never heeded the barangay officials' efforts
to pacify them and when the basketball ring was once padlocked, such was just
removed at will while members of the complainants' club continued playing. When
Cruz asked for the PHC to return the steel bar and padlock, the request was simply
ignored, thus, prompting her to order Dela Cruz to destroy the basketball ring. The
destruction was allegedly also a response to the ongoing clamor of residents to stop
the basketball games.8 Cruz denied allegations that she shouted invectives at the
PHC members. In support of her answer, Cruz attached copies of the complaints, a
"certification" and letters of barangay residents asking for a solution to the
problems arising from the disruptive activities on the said playing venue.9
After the parties' submission of their respective Position Papers,10 the Office of the
Ombudsman rendered its Decision11 dated April 26, 2007dismissing the complaint
filed by Ilao, et al. The Ombudsman found that the act of destroying the basketball
ring was only motivated by Cruz and Dela Cruz performing their sworn duty, as
defined in the Local Government Code.12 It found the act to be a mere response to
the clamor of constituents.13 The office found that though the cutting of the ring
was "drastic," it was done by the barangay officials within their lawful duties, as the
act was only the result of the unauthorized removal of and failure to return the steel
bar and padlock that were earlier placed thereon.14 Neither did the office give
credence to the allegation that Cruz uttered invectives against the complainants'
witnesses, noting that the said witnesses are tainted by their personal animosity
against the barangay officials.15
After the Ombudsman's ruling dismissing the complaint filed against Cruz and Dela
Cruz, the complainants Ilao, et al. filed a petition for review before the Court of
Appeals praying for the latter court to nullify the Ombudsman's decision.16 The
petition's thesis was that any actions in furtherance of the community's welfare
must be approved by ordinance and that unless a thing is a nuisance per se, such a
thing may not be abated via an ordinance and extrajudicially.17
Commenting on the petition for review, the Office of the Ombudsman, through the
Office of the Solicitor General, averred that Section 389 of the Local Government
Code, which defines the powers, duties and functions of the punong barangay,
among which are the power to enforce all laws and ordinances applicable within the
barangay and the power to maintain public order in the barangay and, in pursuance
thereof, to assist the city or municipal mayor and the sanggunian members in the
performance of their duties and functions, does not require an ordinance for the
said official to perform said functions.18 The acts were also in pursuance of the
promotion of the general welfare of the community, as mentioned in Section 16 of
the Code.19
In its assailed Decision dated March 31, 2008, the Court of Appeals reversed and set
aside the decision of the Office of the Ombudsman. The appellate court found
petitioner Natividad C. Cruz liable for conduct prejudicial to the best interest of the
service and penalized her with a suspension of six (6) months and one (1) day,
while it reprimanded the other petitioner Benjamin dela Cruz, and also warned both
officials that a future repetition of the same or similar acts will be dealt with more
severely.
The appellate court sustained the contentions of Ilao, et al. that Cruz and Dela Cruz
performed an abatement of what they thought was a public nuisance but did the
same without following the proper legal procedure, thus making them liable for said
acts.20 It held Cruz to be without the power to declare a thing a nuisance unless it
is a nuisance per se.21 It declared the subject basketball ring as not such a
nuisance and, thus, not subject to summary abatement. The court added that even
if the same was to be considered a nuisance per accidens, the only way to establish
it as such is after a hearing conducted for that purpose.22
A motion for reconsideration filed by Cruz and Dela Cruz was likewise denied by the
appellate court.23 Hence, they filed this petition.
Petitioners maintain that they acted merely with the intention to regain free
passage of people and vehicles over the street and restore the peace, health and
sanitation of those affected by the basketball court. Cruz, in particular, asserts that
she merely abated a public nuisance which she claimed was within her power as
barangay chief executive to perform and was part of her duty to maintain peace
and order.24
We deny the petition.
Under normal circumstances, this Court would not disturb the findings of fact of the
Office of the Ombudsman when they are supported by substantial evidence.25
However, We make an exception of the case at bar because the findings of fact of
the Ombudsman and the Court of Appeals widely differ.26
It is held that the administrative offense of conduct prejudicial to the interest of the
service is committed when the questioned conduct tarnished the image and
integrity of the officer's public office; the conduct need not be related or connected
to the public officer's official functions for the said officer to be meted the
corresponding penalty.27 The basis for such liability is Republic Act No. 6713, or the
Code of Conduct and Ethical Standards for Public Officials and Employees,
particularly Section 4 (c) thereof, which ordains that public officials and employees
shall at all times respect the rights of others, and shall refrain from doing acts
contrary to public safety and public interest.28 In one case, this Court also stated
that the Machiavellian principle that "the end justifies the means" has no place in
government service, which thrives on the rule of law, consistency and stability.29
For these reasons, in the case at bar, We agree with the appellate court that the
petitioners actions, though well-intentioned, were improper and done in excess of
what was required by the situation and fell short of the aforementioned standards of
behavior for public officials.
It is clear from the records that petitioners indeed cut or sawed in half the subject
basketball ring, which resulted in the destruction of the said equipment and
rendered it completely unusable.30 Petitioners also moved instantaneously and did
not deliberate nor consult with the Sangguniang Barangay prior to committing the
subject acts; neither did they involve any police or law enforcement agent in their
actions. They acted while tempers were running high as petitioner Cruz, the
Barangay Chairperson, became incensed at the removal of the steel bar and
padlock that was earlier used to close access to the ring and at the inability or
refusal of respondents' group to return the said steel bar and padlock to her as she
had ordered.
The destructive acts of petitioners, however, find no legal sanction. This Court has
ruled time and again that no public official is above the law.31 The Court of Appeals
correctly ruled that although petitioners claim to have merely performed an
abatement of a public nuisance, the same was done summarily while failing to
follow the proper procedure therefor and for which, petitioners must be held
administratively liable.
Prevailing jurisprudence holds that unless a nuisance is a nuisance per se, it may
not be summarily abated.32
There is a nuisance when there is "any act, omission, establishment, business,
condition of property, or anything else which: (1) injures or endangers the health or
safety of others; or (2) annoys or offends the senses; or (3) shocks, defies or
disregards decency or morality; or (4) obstructs or interferes with the free passage
of any public highway or street, or any body of water; or (5) hinders or impairs the
use of property."33 But other than the statutory definition, jurisprudence recognizes
that the term "nuisance" is so comprehensive that it has been applied to almost all
ways which have interfered with the rights of the citizens, either in person,
property, the enjoyment of his property, or his comfort.34
A nuisance is classified in two ways: (1) according to the object it affects; or (2)
according to its susceptibility to summary abatement.1wphi1
As for a nuisance classified according to the object or objects that it affects, a
nuisance may either be: (a) a public nuisance, i.e., one which "affects a community
or neighborhood or any considerable number of persons, although the extent of the
annoyance, danger or damage upon individuals may be unequal"; or (b) a private
nuisance, or one "that is not included in the foregoing definition" which, in
jurisprudence, is one which "violates only private rights and produces damages to
but one or a few persons."35
A nuisance may also be classified as to whether it is susceptible to a legal summary
abatement, in which case, it may either be: (a) a nuisance per se, when it affects
the immediate safety of persons and property, which may be summarily abated
under the undefined law of necessity;36 or, (b) a nuisance per accidens, which
"depends upon certain conditions and circumstances, and its existence being a
question of fact, it cannot be abated without due hearing thereon in a tribunal
authorized to decide whether such a thing does in law constitute a nuisance;"37 it
may only be so proven in a hearing conducted for that purpose and may not be
summarily abated without judicial intervention.38
In the case at bar, none of the tribunals below made a factual finding that the
basketball ring was a nuisance per se that is susceptible to a summary abatement.
And based on what appears in the records, it can be held, at most, as a mere
nuisance per accidens, for it does not pose an immediate effect upon the safety of
persons and property, the definition of a nuisance per se. Culling from examples
cited in jurisprudence, it is unlike a mad dog on the loose, which may be killed on
sight because of the immediate danger it poses to the safety and lives of the
people; nor is it like pornographic materials, contaminated meat and narcotic drugs
which are inherently pernicious and which may be summarily destroyed; nor is it
similar to a filthy restaurant which may be summarily padlocked in the interest of
the public health.39 A basketball ring, by itself, poses no immediate harm or danger
to anyone but is merely an object of recreation. Neither is it, by its nature, injurious
to rights of property, of health or of comfort of the community and, thus, it may not
be abated as a nuisance without the benefit of a judicial hearing.40
But even if it is assumed, ex gratia argumenti, that the basketball ring was a
nuisance per se, but without posing any immediate harm or threat that required
instantaneous action, the destruction or abatement performed by petitioners failed
to observe the proper procedure for such an action which puts the said act into legal
question.
Under Article 700 of the Civil Code, the abatement, including one without judicial
proceedings, of a public nuisance is the responsibility of the district health officer.
Under Article 702 of the Code, the district health officer is also the official who shall
determine whether or not abatement, without judicial proceedings, is the best
remedy against a public nuisance. The two articles do not mention that the chief
executive of the local government, like the Punong Barangay, is authorized as the
official who can determine the propriety of a summary abatement.
Further, both petitioner Cruz, as Punong Barangay, and petitioner Dela Cruz, as
Barangay Tanod, claim to have acted in their official capacities in the exercise of
their powers under the general welfare clause of the Local Government Code.
However, petitioners could cite no barangay nor city ordinance that would have
justified their summary abatement through the exercise of police powers found in
the said clause. No barangay nor city ordinance was violated; neither was there one
which specifically declared the said basketball ring as a nuisance per se that may be
summarily abated. Though it has been held that a nuisance per se may be abated
via an ordinance, without judicial proceedings,41 We add that, in the case at bar,
petitioners were required to justify their abatement via such an ordinance because
the power they claim to have exercised the police power under the general
welfare clause is a power exercised by the government mainly through its
legislative, and not the executive, branch. The prevailing jurisprudence is that local
government units such as the provinces, cities, municipalities and barangays
exercise police power through their respective legislative bodies.42
The general welfare clause provides for the exercise of police power for the
attainment or maintenance of the general welfare of the community. The power,
however, is exercised by the government through its legislative branch by the
enactment of laws regulating those and other constitutional and civil rights.43
Jurisprudence defines police power as the plenary power vested in the legislature to
make statutes and ordinances to promote the health, morals, peace, education,
good order or safety and general welfare of the people.44 The Latin maxim is salus
populi est suprema lex (the welfare of the people is the supreme law).45 Police
power is vested primarily with the national legislature, which may delegate the
same to local governments through the enactment of ordinances through their
legislative bodies (the sanggunians).46 The so-called general welfare clause,
provided for in Section 16 of the Local Government Code, provides for such
delegation of police power, to wit:
Section 16. General Welfare. Every local government unit shall exercise the powers
expressly granted, those necessarily implied therefrom, as well as powers
necessary, appropriate, or incidental for its efficient and effective governance, and
those which are essential to the promotion of the general welfare. Within their
respective territorial jurisdictions, local government units shall ensure and support,
among other things, the preservation and enrichment of culture, promote health
and safety, enhance the right of the people to a balanced ecology, encourage and
support the development of appropriate and self-reliant scientific and technological
capabilities, improve public morals, enhance economic prosperity and social justice,
promote full employment among their residents, maintain peace and order, and
preserve the comfort and convenience of their inhabitants.
Flowing from this delegated police power of local governments, a local government
unit like Barangay 848, Zone 92 in which petitioners were public officials, exercises
police power through its legislative body, in this case, its Sangguniang Barangay.47
Particularly, the ordinances passed by the sanggunian partly relate to the general
welfare of the barangay, as also provided for by the Local Government Code as
follows:
Section 391. Powers, Duties, and Functions.
(a) The sangguniang barangay, as the legislative body of the barangay, shall:
(1) Enact ordinances as may be necessary to discharge the responsibilities
conferred upon it by law or ordinance and to promote the general welfare of the
inhabitants therein; (emphasis supplied)
Even the powers granted to the punong barangay consist mainly of executing only
those laws and ordinances already enacted by the legislative bodies, including the
said official's own sangguniang barangay, to wit:
Section 389. Chief Executive: Powers, Duties, and Functions.
(a) The punong barangay, as the chief executive of the barangay government, shall
exercise such powers and perform such duties and functions, as provided by this
Code and other laws.
(b) For efficient, effective and economical governance, the purpose of which is the
general welfare of the barangay and its inhabitants pursuant to Section 16 of this
Code, the punong barangay shall:
(1) Enforce all laws and ordinances which are applicable within the barangay;
xxxx
(3) Maintain public order in the barangay and, in pursuance thereof, assist the city
or municipal mayor and the sanggunian members in the performance of their duties
and functions;
xxxx
(14) Promote the general welfare of the barangay;
(15) Exercise such other powers and perform such other duties and functions as
may be prescribed by law or ordinance.48
Clearly, the complete destruction of the basketball ring by the petitioners is justified
neither by law or ordinance nor even by equity or necessity, which makes the act
illegal and petitioners liable. And even as an action to maintain public order, it was
done excessively and was unjustified. Where a less damaging action, such as the
mere padlocking, removal or confiscation of the ring would have sufficed,
petitioners resorted to the drastic measure of completely destroying and rendering
as unusable the said ring, which was a private property, without due process. Such
an act went beyond what the law required and, in being so, it tarnished the image
and integrity of the offices held by petitioners and diminished the public's
confidence in the legal system. Petitioners who were public officials should not have
been too earnest at what they believed was an act of restoring peace and order in
the community if in the process they would end up disturbing it themselves. They
cannot break the law that they were duty-bound to enforce. Although the Court
bestows sympathy to the numerous constituents who allegedly complained against
the basketball court to petitioners, it cannot legally agree with the methods
employed by the said officials. Their good intentions do not justify the destruction of
private property without a legal warrant, because the promotion of the general
welfare is not antithetical to the preservation of the rule of law.49 Unlike the
examples cited earlier of a mad dog on the loose, pornography on display or a filthy
restaurant, which all pose immediate danger to the public and, therefore, could be
addressed by anyone on sight, a basketball ring as a nuisance poses no such
urgency that could have prevented petitioners from exercising any form of
deliberation or circumspection before acting on the same.
Petitioners do not claim to have acted in their private capacities but in their
capacities as public officials, thus, they are held administratively liable for their
acts. And even in their capacities as private individuals who may have abated a
public nuisance, petitioners come up short of the legal requirements. They do not
claim to have complied with any of the requisites laid down in Article 704 of the Civil
Code, to wit:
Art. 704. Any private person may abate a public nuisance which is specially
injurious to him by removing, or if necessary, by destroying the thing which
constitutes the same, without committing a breach of the peace, or doing
unnecessary injury. But it is necessary:
(1) That demand be first made upon the owner or possessor of the property to
abate the nuisance;
(2) That such demand has been rejected;

(3) That the abatement be approved by the district health officer and executed with
the assistance of the local police; and
(4) That the value of the destruction does not exceed three thousand pesos.
WHEREFORE, premises considered, the petition is DENIED. The Court of Appeals
Decision dated March 31, 2008 in CA-G.R. SP. No. 104474 is AFFIRMED.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
MARTIN S. VILLARAMA, JR.
Associate Justice BIENVENIDO L. REYES
Associate Justice
FRANCIS H. JARDELEZA
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.
Associate Justice
Chairperson, Third Division
CERTIFICATION
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
CERTIFIED TRUE COPY
WILFREDO V. LAPITAN
Division Clerk of Court
Third Division
February 15, 2016

6.
Today is Thursday, November 24, 2016
THIRD DIVISION
January 11, 2016
G.R. No. 191033
THE ORCHARD GOLF & COUNTRY CLUB, INC., EXEQUIEL D. ROBLES, CARLO R.H.
MAGNO, CONRADO L. BENITEZ II, VICENTE R. SANTOS, HENRY CUA LOPING,
MARIZA SANTOS-TAN, TOMAS B. CLEMENTE III, and FRANCIS C.
MONTALLANA, Petitioners,
vs.
ERNESTO V. YU and MANUEL C. YUHICO, Respondents.
DECISION
PERALTA, J.:
This petition for review on certiorari under Rule 45 of the Rules of Court (Rules) seeks to
reverse the Resolutions dated September 16, 2009 and January 21, 2010 of the Court of
Appeals (CA) in CA-G.R. SP No. 106918, which reconsidered and set aside its Resolution
dated January 15, 2009 granting petitioners a 15-day period within which to file a petition
for review under Rule 43 of the Rules.
1
The present case is a continuation of Yu v. The Orchard Gold & Country Club,
Inc. decided by this Court on March 1, 2007. For brevity, the relevant facts narrated
therein are quoted as follows:
4
On May 28, 2000, a Sunday, [respondents] Ernesto Yu and Manuel Yuhico went to the
Orchard Golf & Country Club to play a round of golf with another member of the club. At
the last minute, however, that other member informed them that he could not play with
them. Due to the "no twosome" policy of the Orchard contained in the membership
handbook prohibiting groups of less than three players from teeing off on weekends and
public holidays before 1:00 p.m., [respondents] requested management to look for another
player to join them.
Because [Orchard] were unable to find their third player, [respondent] Yu tried to convince
Francis Montallana, Orchards assistant golf director, to allow them to play twosome, even
if they had to tee off from hole no. 10 of the Palmer golf course. Montallana refused,
stating that the flights which started from the first nine holes might be disrupted.
[Respondent] Yu then shouted invectives at Montallana, at which point he told
[respondent] Yuhico that they should just tee off anyway, regardless of what
management's reaction would be. [Respondents] then teed off, without permission from
Montallana. They were thus able to play, although they did so without securing a tee time
control slip before teeing off, again in disregard of a rule in the handbook. As a result of
[respondents] actions, Montallana filed a report on the same day with the board of
directors (the board).
In separate letters dated May 31, 2000, the board, through [petitioner] Clemente,
requested [respondents] to submit their written comments on Montallanas incident report
dated May 28, 2000. The reportwas submitted for the consideration of the board.
Subsequently, on June 29, 2000, the board resolved to suspend [respondents] from July
16 to October 15, 2000, and served notice thereof on them.
On July 11, 2000, [respondents] filed separate petitions for injunction with application for
temporary restraining order (TRO) and/or preliminary injunction with the Securities
Investigation and Clearing Department (SICD) of the Securities and Exchange
Commission (SEC), at that time the tribunal vested by law with jurisdiction to hear and
decide intra-corporate controversies. The cases, in which [respondents] assailed the
validity of their suspension, were docketed as SEC Case Nos. 07-00-6680 and 07-006681. They were eventually consolidated.
After a joint summary hearing on the aforesaid petitions, the SEC-SICD, on July 14, 2000,
issued a TRO effective for 20 days from issuance, restraining and enjoining [petitioners],
their agents or representatives from implementing or executing the suspension of
[respondents].
On August 1, 2000, the SEC en banc issued its "Guidelines on Intra-Corporate Cases
Pending Before the SICD and the Commission En Banc of the Securities and Exchange
Commission" (guidelines). Sections 1 and 2 of these guidelines provided:

Section 1. Intra-corporate and suspension of payments or rehabilitation cases may still be
filed with the Securities and Exchange Commission on or before August 8, 2000.
However, the parties-litigants or their counsels or representatives shall be advised that the
jurisdiction of the Commission over these cases shall be eventually transferred to the
Regional Trial Courts upon effectivity of The Securities Regulation Code by August 9,
2000.
Section 2. Prayers for temporary restraining order or injunction or suspension of payment
order contained in cases filed under the preceding section may be acted upon favorably
provided that the effectivity of the corresponding order shall only be up to August 8,
2000. Prayers for other provisional remedies shall no longer be acted upon by the
Commission. In all these cases, the parties-litigants or their counsels or representatives
shall be advised that the said cases will eventually be transferred to the regular courts by
August 9, 2000. (Emphasis ours)
After hearing [respondents] applications for preliminary injunction, the SEC-SICD issued
an order dated August 2, 2000 directing the issuance of a writ of preliminary injunction
enjoining the individual [petitioners], their agents and representatives from suspending
[respondents], upon the latter's posting of separate bonds of P40,000. This [respondents]
did on August 4, 2000.
On August 7, 2000, the SEC-SICD issued a writ of preliminary injunction against
[petitioners] directing them to strictly observe the order dated August 2, 2000.
1wphi1
On October 31, 2000, the board held a special meeting in which it resolved to implement
the June 29, 2000 order for the suspension of [respondents] in view of the fact that the
writs of injunction issued by the SICD in their respective cases had already [elapsed] on
August 8, 2000 under the SEC guidelines.
In separate letters dated December 4, 2000 addressed to each [respondent], [petitioner]
Clemente informed them that the board was implementing their suspensions.
On December 12, 2000, [respondents] filed a petition for indirect contempt against
[petitioners] in the Regional Trial Court (RTC) of Dasmarias, Cavite, docketed as Civil
Case No. 2228-00.
In an order dated December 13, 2000, the Dasmarias, Cavite RTC, Branch 90, through
Judge Dolores [L.] Espaol, directed the parties to maintain the "last, actual, peaceable
and uncontested state of things," effectively restoring the writ of preliminary injunction, and
also ordered [petitioners] to file their answer to the petition. [Petitioners] did not file a
motion for reconsideration but filed a petition for certiorari and prohibition with the CA,
docketed as CA-G.R. SP No. 62309, contesting the propriety of the December 13, 2000
order of Judge Espaol. They also prayed for the issuance of a TRO and writ of
preliminary injunction.
The CA reversed the Dasmarias, Cavite RTC in the x x x decision dated August 27,
2001.
In view of the CA's decision in CA-G.R. SP No. 62309, [petitioners] finally implemented
[respondents] suspension.
In the meantime, [respondents] filed a motion ad cautelam dated August 30, 2001 in the
RTC of Imus, Cavite, Branch 21, praying for the issuance of a TRO and/or writ of
injunction to enjoin [petitioners] from implementing the suspension orders. They alleged
that neither the CA nor this Court could afford them speedy and adequate relief, hence[,]
the case in the RTC of Imus, Cavite. The case was docketed as SEC Case Nos. 001-01
and 002-01.
On September 7, 2001, the Imus, Cavite RTC issued a TRO. [Petitioners] filed a motion
for reconsideration on September [11,] 2001.
It was after the issuance of this TRO that [respondents] filed, on September 12, 2001, a
motion for reconsideration of the CAs decision in CA-G.R. SP No. 62309. In a resolution
dated October 10, 2001, the CA denied [respondents] motion, prompting them to elevate
the matter to this Court via petition for review on certiorari, docketed as G.R. No. 150335.
In an order dated September 21, 2001, the Imus, Cavite RTC denied [petitioners] motion
for reconsideration and directed the issuance of a writ of preliminary injunction. This
prompted [petitioners] to file another petition for certiorari in the Court of Appeals
[docketed as CA-G.R. SP No. 67664] which x x x issued [on March 26, 2002] a TRO
against the Imus, Cavite RTC, enjoining it from implementing the writ of preliminary
injunction.
At this point, [respondents] filed their second petition in this Court, this time a special civil
action for certiorari, docketed as G.R. No. 152687, which included a prayer for the
issuance of a TRO and/or the issuance of a writ of preliminary injunction to restrain the
enforcement of the CA-issued TRO.
On May 6, 2002, the Court issued a resolution consolidating G.R. No. 152687 and G.R.
No. 150335.
In G.R. No. 150335, the issue for consideration [was] whether Sections 1 and 2 of the
SEC guidelines dated August 1, 2000 shortened the life span of the writs of preliminary
injunction issued on August 7, 2000 by the SEC-SICD in SEC Case Nos. 07-00-6680 and
07-00-6681, thereby making them effective only until August 8, 2000.
At issue in G.R. No. 152687, on the other hand, [was] whether or not the CA committed
grave abuse of discretion amounting to lack of jurisdiction by issuing a TRO against the
Imus, Cavite RTC and enjoining the implementation of its writ of preliminary injunction
against [petitioners].
5
On March 1, 2007, the Court denied the petitions in G.R. Nos. 150335 and 152687. In
G.R. No. 150335, it was held that the parties were allowed to file their cases before
August 8, 2000 but any provisional remedies the SEC granted them were to be effective
only until that date. Given that the SEC Order and Writ of Injunction were issued on
August 2 and 7, 2000, respectively, both were covered by the guidelines and the stated
cut-off date. As to G.R. No. 152687, We ruled that the petition became moot and
academic because the TRO issued by the CA on March 26, 2002 already expired, its
lifetime under Rule 58 of the Rules being only 60 days, and petitioners themselves
admitted that the CA allowed its TRO to elapse.
Meanwhile, per Order dated September 24, 2002 of the Imus RTC, SEC Case Nos. 00101 and 002-01 were set for pre-trial conference. Trial on the merits thereafter ensued.
6
On December 4, 2008, the Imus RTC ruled in favor of respondents. The dispositive
portion of the Decision ordered:
7
WHEREFORE, premises considered, the decision of the Clubs Board of Directors

suspending [respondents] Ernesto V. Yu and Manuel C. Yuhico is hereby declared void
and of no effect, and its (sic) enforcement permanently enjoined. The writ of preliminary
injunction is hereby declared permanent.
[Petitioners] are hereby directed to jointly and severally pay each of the [respondents] the
following amounts:
(a) P2,000,000.00 as moral damages;
(b) P2,000,000.00 as exemplary damages;
(c) P500,000.00 as attorneys fees[;] and
(d) P100,000.00 as costs of litigation.
SO ORDERED.
Upon receiving a copy of the Imus RTC Decision on December 22, 2008, petitioners filed
a Notice of Appeal accompanied by the payment of docket fees on January 5,
2009. Respondents then filed an Opposition to Notice of Appeal with Motion for Issuance
of Writ of Execution, arguing that the December 4, 2008 Decision already became final
and executory since no petition for review under Rule 43 of the Rules was filed before the
CA pursuant to Administrative Matter No. 04-9-07-SC.
9
10
Realizing the mistake, petitioners filed on January 13, 2009 an Urgent Motion for
Extension of Time to File a Petition. Before the Imus RTC, they also filed a Motion to
Withdraw the Notice of Appeal.
11
12
On January 15, 2009, the CA resolved to give petitioners a 15-day period within which to
file the petition, but "[s]ubject to the timeliness of the filing of petitioners Urgent Motion for
Extension of Time to File Petition for Review Under Rule 43 of the Rules of Court dated
January 13, 2009." Afterwards, on January 21, 2009, petitioners filed a Petition for
Review.
13
14
In the meantime, respondents filed an Opposition to Petitioners Urgent

Motion. Subsequently, they also filed a motion for reconsideration of the CAs Resolution
dated January 15, 2009.
15
16
Before the Imus RTC, respondents motion for execution was granted on February 17,
2009. The trial court opined that the proper appellate mode of review was not filed within
the period prescribed by the Rules and that the CA issued no restraining order. On March
2, 2009, the Writ of Execution was issued. Eventually, on March 30, 2009, the Sheriff
received the total amount of P9,200,000.00, as evidenced by two managers check
payable to respondents in the amount of P4,600,000.00 each, which were turned over to
respondents counsel.
17
18
19
On September 16, 2009, the CA granted respondents motion for reconsideration, setting
aside its January 15, 2009 Resolution. It relied on Atty. Abrenica v. Law Firm of Abrenica,
Tungol & Tibayan (Atty. Abrenica) and Land Bank of the Philippines v. Ascot Holdings
and Equities, Inc., (LBP), which respondents cited in their Opposition to the Urgent
Motion and Motion for Reconsideration. Petitioners moved to reconsider, but it was
denied on January 21, 2010; hence, this petition.
20
21
22
The Court initially denied the petition, but reinstated the same on October 6, 2010.
23
We grant the petition.

The cases of LBP and Atty. Abrenica are inapplicable. In LBP, the Court affirmed the CAs
denial of the banks motion for extension of time to file a petition for review. Examination of
said case revealed that the bank filed a motion for reconsideration of the trial courts
adverse judgment dated March 15, 2006, in violation of Section 8(3), Rule 1 of the Interim
Rules of Procedure Governing Intra-Corporate Controversies under Republic Act No.
8799. It was held that the filing of such prohibited pleading did not toll the reglementary
period to appeal the judgment via a petition for review under Rule 43 of the Rules. Thus,
the CA already lacked jurisdiction to entertain the petition which the bank intended to file,
much less to grant the motion for extension of time that was belatedly filed on July 25,
2006.
Also, in Atty. Abrenica, We found no compelling reasons to relax the stringent application
of the rules on the grounds as follows:

First, when petitioner received the trial courts consolidated decision on December 16,
2004, A.M. No. 04-9-07-SC was already in effect for more than two months.
Second, petitioner had known about the new rules on the second week of January, 2005
when he received a copy of respondents Opposition (To Defendants Notice of Appeal)
dated January 6, 2005. In their opposition, respondents specifically pointed to the
applicability of A.M. No. 04-9-07-SC to the instant case.
Third, petitioner originally insisted in his Reply with Manifestation (To the Opposition to
Defendants Notice of Appeal) that the correct mode of appeal was a "notice of appeal."
Petitioner reiterated in his Opposition to respondents motion for execution dated January
14, 2005 that a notice of appeal was the correct remedy.
Finally, petitioner filed his Motion to Admit Attached Petition for Review only on June 10,
2005, or almost eight months from the effectivity of A.M. No. 04-9-07-SC on October 15,
2004, after he received the trial courts Order of May 11, 2005.
24
Unlike LBP and Atty. Abrenica, petitioners in this case committed an excusable delay of
merely seven (7) days. When they received a copy of the Imus RTC Decision
on December 22, 2008, they filed before the CA an Urgent Motion for Extension of Time
to File a Petition on January 13, 2009. Meantime, they exhibited their desire to appeal the
case by filing a Notice of Appeal before the Imus RTC. Upon realizing their
procedural faux pax, petitioners exerted honest and earnest effort to file the proper
pleading despite the expiration of the reglementary period. In their urgent motion, they
candidly admitted that a petition for review under Rule 43 and not a notice of appeal under
Rule 41 ought to have been filed. The material dates were also indicated. Hence, the CA
was fully aware that the 15-day reglementary period already elapsed when it granted the
time to file the petition.
In general, procedural rules setting the period for perfecting an appeal or filing a petition
for review are inviolable considering that appeal is not a constitutional right but merely a
statutory privilege and that perfection of an appeal in the manner and within the period
permitted by law is not only mandatory but jurisdictional. However, procedural rules may
be waived or dispensed with in order to serve and achieve substantial justice. Relaxation
of the rules may be had when the appeal, on its face, appears to be absolutely meritorious
or when there are persuasive or compelling reasons to relieve a litigant of an injustice not
commensurate with the degree of thoughtlessness in not complying with the prescribed
procedure.
25
26
27
Notably, under A.M. No. 04-9-07-SC (Re: Mode of Appeal in Cases Formerly Cognizable
by the Securities and Exchange Commission), while the petition for review under Rule 43
of the Rules should be filed within fifteen (15) days from notice of the decision or final
28
order of the RTC, the CA may actually grant an additional period of fifteen (15) days within
which to file the petition and a further extension of time not exceeding fifteen (15) days for
the most compelling reasons. This implies that the reglementary period is neither an
impregnable nor an unyielding rule.
Here, there is also no material prejudice to respondents had the CA allowed the filing of a
petition for review. When the Imus RTC declared as permanent the writ of preliminary
injunction, the injunction became immediately executory. Respondents suspension as
Club members was effectively lifted; in effect, it restored their rights and privileges unless
curtailed by a temporary restraining order or preliminary injunction.
More importantly, the substantive merits of the case deserve Our utmost consideration.
In the present case, Yu acknowledged that there was an offense committed. Similarly,
Yuhico admitted that he was aware or had prior knowledge of the Clubs "no twosome"
policy as contained in the Clubs Membership Handbook and that they teed off without the
required tee time slip. Also, while Yu recognized telling Montallana "kamote ka,"Yuhico
heard him also say that he (Montallana) is "gago."
29
30
31
Respondents assert that the "no twosome" policy was relaxed by the management when a
member or player would not be prejudiced or, in the words of Yu, allowed
when "maluwag." Yet a thorough reading of the transcript of stenographic records (TSN)
disclosed that such claim is based not on concrete examples. No specific instance as to
when and under what circumstance the supposed relaxation took place was cited. Yuhico
roughly recollected two incidents but, assuming them to be true, these happened only
after May 28, 2000. Further, the tee pass or control slip and the Clubs Palmer Course
Card, which was identified by respondents witness, Pepito Dimabuyo, to prove that he
and another member were allowed to play twosome on June 13, 2004, a Sunday,
indicated that they were allowed to tee off only at 1:45 p.m. Lastly, granting, for the sake
of argument, that the "no twosome" policy had been relaxed in the past, Montallana
cannot be faulted in exercising his prerogative to disallow respondents from playing since
they made no prior reservation and that there were standing flights waiting for tee time.
Per Cipriano Santos Report, May 28, 2000 was a relatively busy day as it had 200
registered players to accommodate as of 8:00 a.m.
32
33
34
35
It was averred that respondents teed off without the required tee time slip based on the
thinking that it was no longer necessary since Santos, the Clubs Manager, allowed them
by waving his hands when Yuhicos caddie tried to pick up the slip in the registration office.
Such excuse is flimsy because it ignored the reality that Santos, a mere subordinate of
Montallana who already earned the ire of Yu, was practically more helpless to contain the
stubborn insistence of respondents.
Definitely, the contentions that respondents were not stopped by the management when
they teed off and that they did not cause harm to other members playing golf at the time
for absence of any complaints are completely immaterial to the fact that transgressions to
existing Club rules and regulations were committed. It is highly probable that they were
tolerated so as to restore the peace and avoid further confrontation and inconvenience to
the parties involved as well as to the Club members in general.
With regard to the purported damages they incurred, respondents testified during the trial
to support their respective allegations. Yuhico stated that he distanced himself from his
usual group (the "Alabang Boys") and that he became the butt of jokes of fellow
golfers. On the other hand, Yu represented that some of his friends in the business like
Freddy Lim, a certain Atty. Benjie, and Jun Ramos started to evade or refuse to have
dealings with him after his suspension. Apart from these self-serving declarations,
respondents presented neither testimonial nor documentary evidence to bolster their
claims. Worse, Yu even admitted that Freddy Lim and Atty. Benjie did not tell him that his
suspension was the reason why they did not want to transact with him.
1wphi1
36
37
38
Records reveal that respondents were given due notice and opportunity to be heard
before the Board of Directors imposed the penalty of suspension as Club members.
Respondent Yu was served with the May 31, 2000 letter signed by then Acting General
Manager Tomas B. Clemente III informing that he violated the "no twosome" policy, teed
off without the required tee time slip, and uttered derogatory remarks to Montallana in front
of another member and the caddies. In response, Yus counsel asked for a copy of
Montallanas report and a formal hearing to confront the complainant and all the
witnesses. Subsequently, on June 13, 2000, Yu, through counsel, submitted his
explanation that included an admission of the "no twosome" policy. Finally, on September
15, 2000, Yu was advised of the Board resolution to give him another opportunity to
present his side in a meeting supposed to be held on September 20, 2000. It appears,
however, that Yu refused to attend.
39
40
41
42
43
Likewise, respondent Yuhico was given by Clemente a letter dated May 31, 2000
informing him of violating the "no twosome" policy and teeing off without the required tee
time slip. After receiving the same, Yuhico called up Clemente to hear his side. Like Yu,
however, Yuhico later refused to attend a meeting with the Board.
44
45
46
Respondents were suspended in accordance with the procedure set forth in the Clubs Bylaws. There is no merit on their insistence that their suspension is invalid on the ground
that the affirmative vote of eight (8) members is required to support a decision suspending
or expelling a Club member. Both the provisions of Articles of Incorporation and ByLaws of the Club expressly limit the number of directors to seven (7); hence, the
provision on suspension and expulsion of a member which requires the affirmative vote of
eight (8) members is obviously a result of an oversight. Former Senator Helena Z.
Benitez, the Honorary Chairperson named in the Membership Handbook, could not be
included as a regular Board member since there was no evidence adduced by
respondents that she was elected as such pursuant to the Corporation Code and the Bylaws of the Club or that she had the right and authority to attend and vote in Board
meetings. In addition, at the time the Board resolved to suspend respondents, the
affirmative votes of only six (6) Board members already sufficed. The testimony of Jesus
47
48
A. Liganor, who served as Assistant Corporate Secretary, that Rodrigo Francisco had not
attended a single Board meeting since 1997 remains uncontroverted. The Court agrees
with petitioners that the Club should not be powerless to discipline its members and be
helpless against acts inimical to its interest just because one director had been suspended
and refused to take part in the management affairs.
49
Lastly, contrary to respondents position, the recommendation of the House Committee to

suspend a Club member is not a pre-requisite. Section 1, Article XIV, not Section 2 (b),
Article XI, of the By-Laws governs as it outlines the procedure for the suspension of a
member. Even assuming that the recommendation of the House Committee is mandatory,
respondents failed to prove, as a matter of fact, that petitioners acted in bad faith in relying
on the subject provision, which employs the permissive word "may" in reference to the
power of the House Committee to recommend anytime the suspension of a Club member.
50
51
52
Way different from the trial courts findings, there is, therefore, no factual and legal basis to
grant moral and exemplary damages, attorneys fees and costs of suit in favor of
respondents. The damages suffered, if there are any, partake of the nature of a damnum
absque injuria. As elaborated in Spouses Custodio v. CA:
53
x x x [T]he mere fact that the plaintiff suffered losses does not give rise to a right to
recover damages. To warrant the recovery of damages, there must be both a right of
action for a legal wrong inflicted by the defendant, and damage resulting to the plaintiff
therefrom. Wrong without damage, or damage without wrong, does not constitute a cause
of action, since damages are merely part of the remedy allowed for the injury caused by a
breach or wrong.
There is a material distinction between damages and injury. Injury is the illegal invasion of
a legal right; damage is the loss, hurt, or harm which results from the injury; and damages
are the recompense or compensation awarded for the damage suffered. Thus, there can
be damage without injury in those instances in which the loss or harm was not the result of
a violation of a legal duty. These situations are often called damnum absque injuria.
In order that a plaintiff may maintain an action for the injuries of which he complains, he
must establish that such injuries resulted from a breach of duty which the defendant owed
to the plaintiff a concurrence of injury to the plaintiff and legal responsibility by the
person causing it. The underlying basis for the award of tort damages is the premise that
an individual was injured in contemplation of law. Thus, there must first be the breach of
some duty and the imposition of liability for that breach before damages may be awarded;
it is not sufficient to state that there should be tort liability merely because the plaintiff
suffered some pain and suffering.
Many accidents occur and many injuries are inflicted by acts or omissions which cause
damage or loss to another but which violate no legal duty to such other person, and
consequently create no cause of action in his favor. In such cases, the consequences
must be borne by the injured person alone. The law affords no remedy for damages
resulting from an act which does not amount to a legal injury or wrong.
In other words, in order that the law will give redress for an act causing damage, that act
must be not only hurtful, but wrongful. There must be damnum et injuria. If, as may
happen in many cases, a person sustains actual damage, that is, harm or loss to his
person or property, without sustaining any legal injury, that is, an act or omission which the
law does not deem an injury, the damage is regarded as damnum absque injuria.
xxxx
The proper exercise of a lawful right cannot constitute a legal wrong for which an action
will lie, although the act may result in damage to another, for no legal right has been
invaded. One may use any lawful means to accomplish a lawful purpose and though the
means adopted may cause damage to another, no cause of action arises in the latters
favor. Any injury or damage occasioned thereby is damnum absque injuria. The courts can
give no redress for hardship to an individual resulting from action reasonably calculated to
achieve a lawful end by lawful means.
54
"One who makes use of his own legal right does no injury. Qui jure suo utitur nullum
damnum facit. If damage results from a person's exercising his legal rights, it is damnum
absque injuria." In this case, respondents failed to prove by preponderance of evidence
that there is fault or negligence on the part of petitioners in order to oblige them to pay for
the alleged damage sustained as a result of their suspension as Club members. Certainly,
membership in the Club is a privilege. Regular members are entitled to use all the
facilities and privileges of the Club, subject to its rules and regulations. As correctly
pointed out by petitioners, the mental anguish respondents experienced, assuming to be
true, was brought upon them by themselves for deliberately and consciously violating the
rules and regulations of the Club. Considering that respondents were validly suspended,
there is no reason for the Club to compensate them. Indeed, the penalty of suspension
provided for in Section 1, Article XIV of the By-Laws is a means to protect and preserve
the interest and purposes of the Club. This being so, the suspension of respondents does
not fall under any of the provisions of the Civil Code pertaining to the grant of moral and
exemplary damages, attorneys fees, and litigation costs.
55
56
57
WHEREFORE, premises considered, the petition is GRANTED. The Resolutions dated

September 16, 2009 and January 21, 2010 of the Court of Appeals in CA-G.R. SP No.
106918, which reconsidered and set aside its Resolution dated January 15, 2009, granting
petitioners a fifteen-day period within which to file a petition for review under Rule 43 of
the Rules, is ANNULLED AND SET ASIDE. SEC Case Nos. 001-0l and 002-0l filed and
raffled before the Regional Trial Court, Branch 21 of Imus, Cavite are
hereby DISMISSED for lack of merit. Respondents are ORDERED TO RETURN to
petitioners the total amount of P9,200,000.00 or P4,600,000.00 each, within THIRTY (30)
DAYS from the time this decision becomes final and executory. Thereafter, said amount
shall earn legal interest of six percent (6%) per annum until fully paid.
SO ORDERED.
DIOSDADO M. PERALTA
Associate Justice
WE CONCUR:
Associate Justice
Chairperson
MARTIN S. VILLARAMA, JR.
Associate Justice
BIENVENIDO L. REYES
Associate Justice
Associate Justice
AT T E S TAT I O N
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.
Associate Justice
Chairperson, Third Division
C E R T I F I C AT I O N
Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson's
Attestation, it is hereby certified 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.
Chief Justice
CERTIFIED TRUE COPY
WILFREDO V. LAPITAN
Division Clerk of Court
Third Division
February 16, 2016
Footnotes
Penned by Associate Justice Sesinando E. Villon, with Associate Justices
Noel G. Tijam and Jose C. Reyes, Jr., concurring; rollo, pp. 90-96.
1
Id. at 99-100.
Id. at 526.
546 Phil. 1 (2007).
Yu v. The Orchard Gold & Country Club, Inc., supra, at, 4-8.
Rollo, pp. 408-409.
Id. at 502-509.
Id. at 509.
Id. at 510-514.
10
Id. at 598-601, 611-614.
11
Id. at 515-523.
12
Id. at 524-525.
13
Id. at 526.
14
Id. at 529-588.
15
Id. at 589-597.
16
Id. at 602-610.
17
Id. at 619-621.
18
Id. at 622-623.
19
Id. at 632-636, 644.
20
534 Phil. 34 (2006).
21
562 Phil. 974 (2007).
22
Rollo, pp. 651-703.
23
Id. at 1022, 1107-1108.
Atty. Abrenica v. Law Firm of Abrenica, Tungol & Tibayan, supra note 20, at
42-43.
24
Calipay v. National Labor Relations Commission, 640 Phil. 458, 466

(2010).
25
Philippine National Bank v. Commissioner of Internal Revenue, 678 Phil.

660, 677 (2011).
26
See Calipay v. National Labor Relations Commission, supra note 25, at

467; and Asia United Bank v. Goodland Company, Inc., 650 Phil. 174, 183185 (2010).
27
28
Promulgated on September 14, 2004 and took effect on October 15, 2004.
29
TSN (SEC Case No. 002-01), February 15, 2005, p. 44; rollo, p. 745.
TSN (SEC Cases Nos. 6681/6680), July 26, 2000, pp. 28-29, 42-44 and
TSN (SEC Case No. 001-01), September 12, 2003, pp. 27-29, 35-36; id. at
772-774, 780-781, 1179-1180, 1193-1195.
30
TSN (SEC Cases Nos. 6681/6680), July 26, 2000, p. 32; TSN (SEC Case
No. 001-01), September 12, 2003, pp. 11-12, 3; and TSN (SEC Case No.
002-01), February 15, 2005, p. 29; id. at 731, 757-758, 776, 1183.
31
TSN (SEC Case No. 001-01), September 12, 2003, pp. 7-8, 29-30, 36 and
TSN (SEC Case No. 002-01), February 15, 2005, pp. 10-11, 31-32, 4344; id. at 713-714, 733-734, 744-745, 753-754, 774-775, 781.
32
TSN (SEC Cases Nos. 6681/6680), July 26, 2000, pp. 20-24, 87-90, 105107; id. at 1171-1175, 1238-1241, 1256-1258.
33
34
CA rollo, pp. 703-704.
TSN (SEC Case No. 001-01 and 002-01), November 2006, pp. 8-10; rollo,
pp. 790-792.
35
TSN (SEC Case Nos. 001-01 and 002-01), June 10, 2003, p. 10; id. at
1016.
36
37
TSN (SEC Case No. 002-01), February 15, 2005, pp. 22-26, 33-39; id. at
724-728, 735-741.
38
TSN (SEC Case No. 002-01), February 15, 2005, pp. 44-45; id. at 745-746.
39
Rollo, p. 136.
40
Id. at 138.
41
Id. at 139-141.
42
Id. at 198.
43
Id. at 199.
44
Rollo, p. 137.
TSN (SEC Cases Nos. 6681/6680), July 26, 2000, pp. 69-71 (Id. at 12201222).
45
46
Rollo, p. 200.
47
Article VI (Id. at 106).
48
Article VII (Id. at 807-809).
TSN (SEC Case Nos. 001-01 and 002-01), February 14, 2006, pp. 6-9 (Id.
at 992-995).
49
According to Article XI Section 1 of the By-laws, the House Committee is

one of the standing committees of the Club, which shall be the Presidents
advisory board. The committees shall generally perform staff functions,
formulate, propose and recommend policies and procedures, and report and
be directly responsible to the President. (Id. at 813-814)
50
Sec. 1. Suspension and Expulsion. The Board of Directors, by the

affirmative vote of eight of its members, may reprimand, suspend or expel a
member on any of the following grounds:
51
a. Violation of articles of incorporation or the By-laws;

b. Violation of Rules and Regulations adopted by the Board of
Directors; or
c. Acts or conduct of the member inimical to the interest and purposes
of the Club.
The member concerned shall be informed of the charges against him
in writing and may appeal to a general or special meeting of
stockholders whose decision shall be final.
The suspension or expulsion of a regular member shall automatically
include the suspension or expulsion of the assignees or
representatives of said member. If a nominee or representative of a
regular member is suspended or expelled by reason other than
delinquency in the payment of accounts, only the erring nominee or
representative shall be disciplined. (Id. at 820)
b. House Committee The House Committee with the approval of the
Board shall make and promulgate the rules and regulations for the
management of the Club and the use of the Clubhouse and all facilities;
regulate the prices of commodities and services within its jurisdiction;
formulate policies on purchasing functions; and subject to its House Rules,
may at anytime, recommend to the Board the suspension of any member,
and exercise such other powers and perform such functions as may be
authorized by the Board. (Id. at 814)
52
53
323 Phil. 575 (1996).
54
Spouses Custodio, supra, at 585-586, 588-589.
55
Pro Line Sports Center, Inc. v. CA, 346 Phil. 143, 154 (1997).
56
Article II, Section 1 of the By-laws (Rollo, p. 800).
57
Article II, Section 2 of the By-laws (Id.).
The Lawphil Project - Arellano Law Foundation
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Today is Thursday, November 24, 2016
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FIRST DIVISION
January 20, 2016

G.R. No. 171303
ELIZABETH L. DIAZ, Petitioner,
vs.
GEORGINA R. EN CANTO, ERNESTO G. TABUJARA, GEMINO H. ABAD and UNIVERSITY
OF THE PHILIPPINES, Respondents.
DECISION
LEONARDO-DE CASTRO, J.:
This is a Petition for Review on Certiorari under Rule 45 of the 1997 Rules of Court,
as amended, which seeks to reverse and set aside the April 28, 2005 Decision1 and
January 20, 2006 Resolution2 of the Court of Appeals in CA-G.R. CV No. 55165,3
which reversed the April 17, 1996 Decision4 and September 1 7, 1996 Order5 of the
Regional Trial Court (RTC), Branch 71, Pasig City, in Civil Case No. 58397.
The undisputed facts as narrated by the Court of Appeals are as follows:
Plaintiff-appellant [Elizabeth L. Diaz] has been in the service of [the University of the
Philippines] U.P. since 1963. In 1987, she was an associate professor in the College
of Mass Communication (CMC). During the second semester for Academic Year (A Y)
1987-1988, she was a full time member of the faculty and taught 12 units on full
load. After 2 to 3 weeks of teaching, she applied for sick leave effective November
23, 1987 until March 1, 1988. She returned on March 2, 1988 and submitted a
Report for Duty Form.
On May 3, 1988, Diaz filed a letter-application directly with U.P.'s "Office of the
President (Abueva) for sabbatical leave with pay for one (1) year effective June 1988
to May 1989, for "rest, renewal and study." Cecilia Lazaro, Chair of the Broadcast
Department, initially recommended to CMC Dean Encanto that Diaz's sabbatical
application be granted. After they discussed the options available to the CMC,
Lazaro, on May 10, 1988, recommended instead that Diaz be granted any leave of
absence she may be qualified for. In her May 2, 1988 letter, Diaz indicated her
unwillingness to teach. Considering the CMC's experience with Diaz who dropped
her courses in the previous semester, Lazaro deleted Diaz's name in the final
schedule of classes for the 1st semester of A Y 1988-89 beginning June 6, 1988.
Incidentally, Diaz received her salary for June 1988, indicating that her sabbatical
might be approved.
Thereafter, Encanto referred Diaz's sabbatical application to the Secretary of U.P.,
recommending its denial. When requested by (Chancellor) Tabujara, Encanto
transmitted to the former a Reference Slip together with her comments thereon.
Meanwhile, Encanto requested Ermelina Kalagayan to hold Diaz's salary effective
July 1, 1988 until further notice considering that her sabbatical application has not
yet been approved and that she did not teach that semester. Consequently, Diaz's
name was deleted in the payroll from September 1988 to January 1989.
On July 4, 1988, Tabujara recommended instead that Diaz be granted a leave

without pay in order to enable the CMC to hire a substitute. The next day, the U.P.'s
Secretary referred to Abad, VicePresident (VP) for Academic Affairs, the fact of
denial of such sabbatical request, for his own comment/recommendation to the U.P.
President. Meantime, Diaz confessed her problems to Abad. On July 8, 1988, Abad
returned the Reference Slip indicating therein that Diaz had promised him earlier "to
put down in writing, from her point of view, the historical backdrop as it were to the
latest denial of her sabbatical leave." With comments, Abad then referred the
matter to the U .P. President.
Pursuant to Administrative Order No. 42 issued by the U.P. President, the Academic
Policy Coordinating Committee (APCC), on July 21, 1988, reviewed the case of Diaz.
When reminded by Abad, Diaz again promised to give the background information.
On Diaz's request to teach for that semester, AY 1988-89, the Vice Chancellor for
Academic Affairs, Edgardo Pacheco, and the HRDO Director, Atty. Pio Frago,
instructed Encanto that "Until Prof. Diaz officially reports for duty, accomplishes the
Certificate of Report for Duty, and the Dean of CMC confirms her date of actual
report for duty, she is considered absent without official leave (AWOL) for the
University."
On November 8, 1988, Abad, then as OIC, issued a Memorandum to Diaz to confirm
as valid Encanto' s reason of shortage of teaching staff in denying her sabbatical.
Later, he also informed Diaz of her lack of service during the first semester of A Y
1988-89, hence, she is not entitled to be paid and asked her to clarify her status of
being on leave without pay.
[While Diaz was able to teach during the second semester of AY 1988-89, she was
not able to claim her salaries for her refusal to submit the Report for Duty Form.6
She received her salaries for June to July 15, 1989, but could no longer claim her
salary after July 15, 1989, when Encanto reminded the University Cashier, in a letter
dated July 26, 1989,7 that Diaz had to "accomplish the Report for Duty Form to
entitle her to salaries and make official her return to the service of the University."8
Diaz's name was subsequently included in the payroll starting July 1990, when she
submitted a Report for Duty after her return from compulsory summer leave.9]
xxxx
In the meantime, on January 3, 1989, Diaz filed a complaint with the Office of the
Ombudsman (OMB-00-89-0049), against Gemino H. Abad, Ernesto G. Tabujara and
Georgina R. Encanto, all officials of the University of the Philippines, for the alleged
violation of Section 3(e) of R.A. 3019, involving the legality of a Report for Duty
Form as a prerequisite to the payment of her salary.
On May 4, 1989, the Ombudsman dismissed the said complaint and ruled, inter alia:
Considering that Prof. Diaz was rightfully considered on leave without pay during the
first semester of A Y 1988-1989, to make official her return to the service of the
University, it is advised that she accomplish the Report for Duty Form which will
then be the basis to establish the date of her actual return to the service. However,
if possible, the University authorities can perhaps dispense with the requirement
and pay her salaries for actual services rendered from November 3, 1988.
Diaz's initial Petition for Certiorari in the Supreme Court (G.R. No. 88834) assailing
the above-quoted Ombudsman's ruling was subsequently dismissed. She filed
another Petition (G.R. No. 89207) raising exactly the same issued found in G.R. No.
88834.
Meanwhile, on July 18, 1989, Diaz instituted a complaint against the U.P., Abueva,
Encanto, Tabujara and Abad with the Regional Trial Court, Pasig, Metro Manila
praying that the latter be adjudged, jointly and severally to pay her damages. She
claimed, among others, that [respondents] conspired together as joint tortfeasors,
in not paying her salaries from July 1, 1988 in the first semester of academic year
1988-89, for the entire period when her sabbatical application was left unresolved,
as well as the salaries she earned from teaching in the second semester from
November 1988 to May 1989. She likewise claimed moral and exemplary damages
and attorney's fees.
On August 31, 1989, the Supreme Court En Banc dismissed Diaz's Petition in G.R.
No. 89207, viz.:
It is noted that the Ombudsman found no manifest partiality, evident bad faith, or
gross inexcusable negligence on the part of the private respondents in denying the
application for sabbatical leave of petitioner (Diaz) and in requiring her to fill up a
Report for Duty Form as a requisite for her entitlement to salary.
To the petitioner's contentions, the Ombudsman observed, among others, the
following: that, the denial of her sabbatical leave application was due to the
exigencies of the service; that petitioner was not given a teaching assignment for
the first semester of A Y 1988-1989, because she did not want to teach then; that
the delay in action on her leave application was due to petitioner's own fault for not
following the usual procedures in the processing of her application; and that there is
no malice on the part of the private respondents in requiring petitioner to
accomplish the Report for Duty Form which is the basis of the date of her actual
return to the service.10 (Citations omitted.)
In a Decision dated April 1 7, 1996, the R TC ruled in favor of petitioner Diaz, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of plaintiff and against
defendants:
1. Ordering defendants, except Abueva, to pay plaintiff, jointly and severally, the
amount of P133,665.50 representing the total unpaid salaries from July 1, 1988 to
May 31, 1989 and from July 16, 1989 to May 31, 1990 to be covered by
corresponding certificate of service, with legal rate of interest from the date of this
Decision until its full payment.
2. Ordering defendants, except the University and Abueva, to pay plaintiff, jointly
and severally, the amount of P300,000.00 as moral damages.
and severally, the amount of P60,000.00 as exemplary damages.
and severally, the reduced amount of PS0,000.00 as and by way of attorney's fees.
5. Costs of suit.
The counterclaims filed by defendant Tabujara are DISMISSED.11
The RTC, ruling that a sabbatical leave is not a right but a privilege, held that
petitioner Diaz was entitled to such privilege and found that the delay in
the_resolution of her application was unreasonable and unconscionable.
However, on September 17, 1996, the RTC, in denying the Motions for
Reconsideration of the respondents in said case, also amended its earlier decision
by absolving respondent Encanto from any liability, to wit:
WHEREFORE, judgment is hereby rendered in favor of plaintiff and against
defendants:
1. Ordering defendants, except Abueva and Encanto, to pay plaintiff, jointly and
severally, the amount of P133,665.50 representing the total unpaid salaries from
July 1, 1988 to May 31, 1989 and from July 16, 1989 to May 31, 1990 to be covered
by corresponding certificate of service, with legal rate of interest from the date of
this Decision until its full payment.
2. Ordering defendants, except the University, Abueva and Encanto, to pay plaintiff,
jointly and severally, the amount of P300,000.00 as moral damages.
3. Ordering defendants, except the University, Abueva and Encanto, to pay plaintiff,
jointly and severally, the amount of P60,000.00 as exemplary damages.
4. Ordering defendants, except University, Abueva and Encanto, to pay plaintiff,
jointly and severally, the reduced amount of P50,000.00 as and by way of attorney's
fees.
5. Costs of suit.
The counterclaims filed by defendant Tabujara are DISMISSED.12
The RTC dismissed the claim of petitioner Diaz against respondent Encanto on the
ground that her function was purely recommendatory in nature. It held that she was
not instrumental in the unreasonable and unconscionable delay in the resolution of
petitioner Diaz's sabbatical application as she transmitted her recommendation to
Abueva within eighteen days from her receipt of such application.13
Petitioner Diaz14 and respondents Tabujara,15 U.P., Abad16 and even Encanto17
appealed the RTC's ruling to the Court of Appeals.
As respondent Encanto was absolved of liability by the R TC in its September 1 7,

1996 Order, the Court of Appeals admitted her Brief,18 as an incorporation to the
other respondents' Brief,19 and as a comment on petitioner Diaz's appeal.20
The respondents mainly argued that the R TC erred in holding them liable for
damages despite the absence of bad faith on their part, as held by both the
Ombudsman in OMB-00-89-0049 and the Supreme Court in G.R. No. 89207.
Petitioner Diaz, on the other hand, questioned the reversal of the R TC ruling only
with respect to the liability of respondent Encanto, in a lone assignment of error,
viz.:
THE LOWER COURT GRAVELY ERRED IN REVERSING ITS ORIGINAL DECISION WITH
REGARD TO PRINCIPAL DEFENDANT GEORGINA R. ENCANTO BY ABSOLVING HER OF
LIABILITY FOR DAMAGES TO PLAINTIFF-APPELLANT ELIZABETH L. DIAZ WITHOUT
ALTERING IN ANY MATERIAL RESPECT WHATSOEVER THE FINDINGS OF FACT IN THE
ORIGINAL DECISION SHOWING CLEARLY THE RESPONSIBILITY OF DEFENDANT
ENCANTO FOR (I) THE WRONGFUL DISAPPROVAL OF PLAINTIFF'S SABBATICAL
APPLICATION; (II) THE UNJUST DEPRIVATION OF SALARIES DUE THE PLAINTIFF FOR
ALMOST ONE WHOLE SEMESTER DURING WHICH HER SABBATICAL APPLICATION
REMAINED UNRESOLVED; AND (III) THE WRONGFUL WITHHOLDING OF PLAINTIFF'S
EARNED SALARIES IN THE THREE SUCCEEDING SEMESTERS DURING WHICH THE
PLAINTIFF TAUGHT WITHOUT BEING PAID.21
Ruling of the Court of Appeals
The Court of Appeals trimmed down the issue to whether or not respondents U.P.,
Tabujara and Abad were negligent or acted in bad faith in denying petitioner Diaz's
application for sabbatical leave and in withholding her salaries. In its Decision
promulgated on April 28, 2005, it effectively reversed the decision of the R TC, viz.:
WHEREFORE, the appealed Decision is REVERSED and SET ASIDE and a NEW
JUDGMENT is RENDERED, as follows: (1) defendant-appellant University of the
Philippines, through its appropriate officials, is DIRECTED to pay plaintiff-appellant
Elizabeth Diaz the sum of Twenty-One Thousand, Eight Hundred Seventy-Nine and
64/100 (P21,879.64) as unpaid salaries and allowances, and (2) the sums awarded
as moral and exemplary damages and attorney's fees are hereby DELETED. This is
without prejudice to the enforcement of valid rules and regulations of the University
of the Philippines pertaining to Diaz's employment status.22
The Court of Appeals found neither negligence nor bad faith on the part of the
respondents in their denial of petitioner Diaz's sabbatical leave application and in
withholding her salaries.
The Court of Appeals emphasized that a sabbatical leave is not a right which could
be demanded at will, even by petitioner Diaz who has been a veteran professor of
24 years at U.P. Moreover, the Court of Appeals said that the eventual denial of her
sabbatical leave application was not actionable in view of the fact that (i) it would
be unfair to impute negligence to respondents in the regular discharge of their
functions; and (ii) assuming that there was delay in the resolution of her application,
she herself caused such delay.23
The Court of Appeals also held that petitioner Diaz's own recalcitrance and defiance
to comply with certain documentary requirements was the reason her salaries were
withheld.24
Petitioner Diaz filed a Motion for Reconsideration to the aforementioned decision,
which was subsequently denied for lack of merit in a Resolution dated January 20,
2006.
Issues
Undaunted, petitioner Diaz is again before this Court, with the following
Assignments of Error:
FIRST ASSIGNMENT OF ERROR
WITHOUT DISTURBING THE FINDINGS OF FACT OF. THE TRIAL COURT BASED ON
OVERWHELMING EVIDENCE REVEALING THE COMMISSION BY RESPONDENTS OF THE
TORTIOUS ACTS COMPLAINED OF BY PETITIONER IN DENYING HER SABBATICAL LEA
VE, THE COURT OF APPEALS GRIEVOUSLY ERRED IN IGNORING THOSE FINDINGS
AND ADOPTING AND TREATING AS VALID THE FLIMSY EXCUSES OF RESPONDENTS
TO A VOID THE LEGAL CONSEQUENCES OF THEIR ACTS.
SECOND ASSIGNMENT OF ERROR
THE COURT OF APPEALS ERRED IN HOLDING CONTRARY TO THE EVIDENCE ON
RECORD, THAT "THERE WAS JUDICIOUS EXERCISE" BY RESPONDENTS "OF THEIR
DISCRETIONARY POWER WITH RESPECT TO THE DENIAL OF THE SUBJECT
SABBATICAL LEAVE."
THIRD ASSIGNMENT OF ERROR
THE COURT OF APPEALS ERRED IN TREATING AS LAWFUL THE WITHHOLDING OF
PETITIONER'S SALARIES, CONTRARY TO THE EVIDENCE ON RECORD.
FOURTH ASSIGNMENT OF ERROR
THE COURT OF APPEALS ERRED IN CONCLUDING, CONTRARY TO THE EVIDENCE ON
RECORD, THAT PETITIONER "FAILED TO SHOW BY A PREPONDERANCE OF EVIDENCE
THE NEGLIGENCE OF RESPONDENTS SO AS TO BE ENTITLED TO THE DAMAGES
SOUGHT."
FIFTH ASSIGNMENT OF ERROR
THE COURT OF APPEALS ERRED IN NOT CORRECTLY COMPUTING THE SUM OF
PETITIONER'S UNPAID AND EARNED SALARIES, IN UTTER DISREGARD OF THE
EVIDENCE ON RECORD.
SIXTH ASSIGNMENT OF ERROR

THE COURT OF APPEALS ERRED IN NOT FINDING, CONTRARY TO THE EVIDENCE ON
RECORD, THAT RESPONDENTS EN CANTO, TABUJARA AND ABAD ARE JOINTLY AND
SEVERALLY LIABLE TO PETITIONER FOR ACTUAL, MORAL AND EXEMPLARY DAMAGES
AS JOINT TORTFEASORS UNDER THE LAW.25
The issue in this case boils down to whether or not the respondents acted in bad
faith when they resolved petitioner Diaz's application for sabbatical leave and
withheld her salaries.
Ruling of the Court
The resolution of this case hinges on the question of bad faith on the part of the
respondents in denying petitioner Diaz's sabbatical leave application and
withholding of her salaries. Bad faith, however, is a question of fact and is
evidentiary.26 Thus, contrary to petitioner Diaz's belief that " [ w ]hat is involved in
this stage of the case is the legal interpretation or the legal consequence of the
material facts of this case," the resolution of the issue at hand involves a question
of fact, which the respondents rightly assert, is not within the province of a Rule 45
petition.27 Nonetheless, the Court makes an exception in this case especially so
that both the RTC and the Court of Appeals have the same findings of fact, but they
arrived at different conclusions.28
Application for Sabbatical Leave
Petitioner Diaz's complaint29 for recovery of damages before the RTC was based on
the alleged bad faith of the respondents in denying her application for sabbatical
leave vis-a-vis Articles 19 and 20 of the Civil Code.30
Articles 19 and 20 read as follows:
Art. 19. Every person must, in the exercise of his rights and in the performance of
his duties, act with justice, give everyone his due, and observe honesty and good
faith.
Art. 20. Every person who, contrary to law, willfully or negligently causes damage to
another, shall indemnify the latter for the same.
Article 19 of the Civil Code "prescribes a 'primordial limitation on all rights' by
setting certain standards that must be observed in the exercise thereof."31 Abuse of
right under Article 19 exists when the following elements are present: (1) there is a
legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of
prejudicing or injuring another.32
This Court, expounding on the concept of bad faith under Article 19, held:
Malice or bad faith is at the core of Article 19 of the Civil Code. Good faith refers to
the state of mind which is manifested by the acts of the individual concerned. It
consists of the intention to abstain from taking an unconscionable and unscrupulous
advantage of another. It is presumed. Thus, he who alleges bad faith has the duty to
prove the same. Bad faith does not simply connote bad judgment or simple
negligence; it involves a dishonest purpose or some moral obloquy and conscious
doing of a wrong, a breach of known duty due to some motives or interest or ill will
that partakes of the nature of fraud. Malice connotes ill will or spite and speaks not
in response to duty. It implies an intention to do ulterior and unjustifiable harm.
Malice is bad faith or bad motive.33 (Citations omitted.)
Undoubtedly, the respondents had a duty to resolve petitioner Diaz's sabbatical
leave application. The crucial question is if they did so with the intention of
prejudicing or injuring petitioner Diaz.
We hold in the negative.
There is no dispute, and both the RTC and the Court of Appeals agree, that the grant
of a sabbatical leave is not a matter of right, but a privilege. Moreover, the issue of
whether or not the respondents acted in bad faith when they denied petitioner
Diaz's application for sabbatical leave has been answered several times, in separate
jurisdictions.
On May 4, 1989, the Ombudsman issued a Resolution34 in Case No. OMB-0-89-0049
on the complaint filed by petitioner Diaz against respondents Encanto, Tabujara, and
Abad for violation of Section 3(e) of Republic Act No. 3019, recommending the
dismissal of the complaint for lack of merit. It found no manifest partiality, evident
bad faith, or gross inexcusable negligence on the part of the respondents in their
denial of petitioner Diaz's application for sabbatical leave and in requiring her to
accomplish a Report for Duty form as a prerequisite for her entitlement to salary.
Petitioner Diaz protested the outcome of this resolution by filing a special civil
action for certiorari with this Court, on two occasions. When G.R. No. 88834 was
dismissed for non-compliance with Circular No. 1-88,35 petitioner Diaz re-filed her
petition, raising exactly the same issues, and this was docketed as G.R. No.
89207.36
On August 31, 1989, this Court issued a Resolution,37 dismissing petitioner Diaz's
petition in G.R. No. 89207. This Court noted the Ombudsman's findings and
observations and found them to be supported by substantial evidence.
On April 28, 2005, the Court of Appeals had the same findings and held that the
denial of petitioner Diaz's application for sabbatical leave was "a collegial decision
based on UP. 's established rules, the grant of which is subject to the exigencies of
the service, like acute shortage in teaching staff" It added that "the UP. officials'
eventual denial of [Diaz's} application is not actionable xx x it is unfair to impute
negligence to [respondents] in the regular discharge of their official functions. "38
The Ombudsman and all three courts, starting from the R TC to this Court, have
already established that a sabbatical leave is not a right and therefore petitioner
Diaz cannot demand its grant. It does not matter that there was only one reason for
the denial of her application, as the approving authorities found that such reason
was enough. Moreover, not only the Court of Appeals but also the Ombudsman, and
this Court, have ruled that the respondents did not act in bad faith when petitioner
Diaz's sabbatical leave application was denied. Those three separate rulings verily
must be given great weight in the case at bar.
The Court does not find any reason to disregard those findings, especially when our
own perusal of the evidence showed no traces of bad faith or malice in the
respondents' denial of petitioner Diaz's application for sabbatical leave. They
processed her application in accordance with their usual procedure - with more
leeway, in fact, since petitioner Diaz was given the chance to support her
application when she was asked to submit a historical background; and the denial
was based on the recommendation of respondent Encanto, who was in the best
position to know whether petitioner Diaz's application should be granted or not.
While the RTC declared that petitioner Diaz should have been granted a sabbatical
leave, it is important to note that the RTC awarded damages to petitioner Diaz
merely for the unreasonable and unconscionable delay in the resolution of her
sabbatical leave application,39 and not its denial per se. Thus, petitioner Diaz's
entitlement to a sabbatical leave should no longer be an issue in this case. This is
supported by petitioner Diaz's own action when she did not move for the
reconsideration of the April 17, 1996 Decision of the RTC for awarding her damages
due only to the delay in the resolution of her sabbatical leave application and not
for its denial; and more so by the prayer in her petition to this Court wherein she
asked that the April 17, 1996 Decision of the RTC be "reinstated and affirmed in
toto."40
Nevertheless, on the question of whether or not there was bad faith in the delay of
the resolution of petitioner Diaz's sabbatical leave application, the Court still rules in
the negative. "It is an elementary rule in this jurisdiction that good faith is presumed
and that the burden of proving bad faith rests upon the party alleging the same."41
Petitioner Diaz has failed to prove bad faith on the part of the respondents. There is
nothing in the records to show that the respondents purposely delayed the
resolution of her application to prejudice and injure her. She has not even shown
that the delay of six months in resolving a sabbatical leave application has never
happened prior to her case. On the contrary, any delay that occurred was due to the
fact that petitioner Diaz's application for sabbatical leave did not follow the usual
procedure; hence, the processing of said application took time.42
In petitioner Diaz's petition, she criticized the Court of Appeals for imputing the
cause of delay to her, arguing that as the requirement that a sabbatical leave
application be filed at least one semester before its intended date of effectivity was
only imposed in 1990, long after she had filed hers in 1988.43 But, precisely, this
rule may have been imposed by U.P. to address any untoward delays and to likewise
provide a time frame for the approving authorities in resolving sabbatical leave
applications.
This Court understands petitioner Diaz's frustration, but she cannot keep on arguing
that the facts, as established, and which she herself does not dispute, had been
misappreciated.in different occasions.
Petitioner Diaz's Withheld Salaries
Petitioner Diaz is entitled to her withheld salaries from July 1, 1988 to October 31,
1988, and from November 1, 1988 to May 31, 1989, and July 16, 1989 to May 31,
1990, upon submission of the required documents.
The denial of petitioner Diaz's salaries during the first semester of Academic Year
(AY) 1988-1989 was due to the fact that she did not teach that semester. But when
respondent Lazaro removed petitioner Diaz's name from the final schedule of
teaching assignments in CMC for the first semester of AY 1988-89, it was without
petitioner Diaz's prior knowledge, as admitted by respondent Lazaro herself, to wit:
ATTY. DIAZ: Now, did Prof. Diaz ask you to remove her from [the] schedule of
classes?
LAZARO: I did it.
Q: Because you said you did it on your own?
A: Yes.
xxxx
Q: She did not [ask] you?
A: No.44
The Court, however, observes that respondent Lazaro, in so doing, did not act in
bad faith as she expected petitioner Diaz's application for leave, of whatever nature,
to be granted. As such, she did not want Diaz to have to drop the classes she was
already handling once her sabbatical leave was approved, as was the case the
semester before, when petitioner Diaz dropped her classes, three weeks into the
start of the semester, when her application for sick leave was approved, viz.:
ATTY. GUNO: You mentioned a while ago that you deleted the name of Professor Diaz
from this final schedule of classes.1wphi1 Why did you delete it?
LAZARO: I presumed in good faith that based on the letter she sent which was
routed to me where she stated she could no longer be efficient and effective as a
teacher and she was suffering from fatigue and that she could no longer work under
those circumstances, I felt, as a gesture of sympathy to her that this should be
granted suggesting that she be given a leave of absence of whatever kind she was
qualified for and based on my previous experience on the second semester where
two to three weeks into the course she dropped her courses, I did not want that to
happen again.45
ATTY. GUNO: You also testified that because of the application for sabbatical leave
and the reasons she gave in that letter, you deleted her name in the final list of
class schedule for school year 1988-89 first semester?
LAZARO: Yes.
Q: Why did you delete her name, will you tell the Court?
A: She had applied for sabbatical leave for the whole year of 1988-89 and based on
the experience of her sick leave during the previous semester which was the second
semester of the previous school year where three (3) weeks into classes she filed
for a sick leave and did not teach, based on that experience, I did not include her
name in the class list because the same thing could happen again.46
While petitioner Diaz was not consulted about the removal of her name from the
class schedule, she did not contest such upon the belief that her application for
sabbatical leave would be approved, as in fact, she was given her salary in June
1988. As such, this Court believes, in the interest of equity and fairness, that
petitioner Diaz should be entitled to her salary during the semester when her name
was dropped from the final list of schedule of classes, without her knowledge and
consent, and while action on her application for sabbatical leave was still
pending.47
On the matter of her salaries from the second semester of A Y 1988-89 up until A Y
1989-1990, the respondents legally withheld such, as found by the Ombudsman and
the Court of Appeals for petitioner Diaz's own refusal to comply with the
documentary requirements of U.P. Even the RTC, in its Omnibus Order of January 12,
1990, denied petitioner Diaz's petition for mandatory injunction upon the finding
that the Report for Duty Form required of her is a basic and standard requirement
that is asked from all employees of U.P. The RTC held:
It is therefore clear that the acts sought to be enjoined [by Diaz] are in fact pursuant
to the proper observance of administrative or internal rules of the University. This
Court sympathizes with [Diaz] for not being able to receive her salaries after July 15,
1989. However, such predicament cannot be outrightly attributable to the
defendants, as their withholding of her salaries appears to be in accordance with
existing University regulations.
Apart from such reasons, this Court believes that petitioner Diaz failed to show why
she should be spared from the Report for Duty requirement, which remains a
standard practice even in other offices or institutions. To be entitled to an injunctive
writ, one must show an unquestionable right and/or blatant violation of said right to
be entitled to its issuance.48
But it cannot be denied that during the periods of November 1, 1988 to May 31,
1988 and July 16, 1989 to May 31, 1990, petitioner Diaz rendered service to U.P. for
which she should be compensated.
Given the foregoing, petitioner Diaz should be paid, as the RTC had computed, her
salaries from July l, 1988 to October 1988, the semester when petitioner Diaz's
name was dropped from the final list of schedule of classes, without her prior
knowledge and consent; and for the periods of November 1, 1988 to May 31, 1989
and July 16, 1989 to May 31, 1990, for the work she rendered during said periods,
but upon petitioner Diaz's submission of the documents required by U.P.
No Payment of Other Damages

Given that the respondents have not abused their rights, they should not be held
liable for any damages sustained by petitioner Diaz. "The law affords no remedy for
damages resulting from an act which does not amount to a legal wrong. Situations
like this have been appropriately denominated damnum absque injuria."49
Similarly, the Court cannot grant petitioner Diaz's claim for attorney's fees as no
premium should be placed on the right to litigate. "Even when a claimant is
compelled to litigate or to incur expenses to protect his rights, still attorney's fees
may not be awarded where there is no sufficient showing of bad faith in a party's
persistence in a case other than an erroneous conviction of the righteousness of his
cause."50
Legal Interest Due on the Salaries Withheld
Pursuant to Nacar v. Gallery Frames,51 the applicable rate of legal interest due on
petitioner Diaz's withheld salaries - (i) from July 1, 1988 to October 31, 1988, the
period corresponding to the first semester of A Y 1988-89, when her name was
removed from the final list of class schedule without her prior knowledge and
consent, less the amount she had received in June 1988 - will be from April 17,
1996, the date of the Decision of the RTC, up to the full satisfaction thereof, is 6%
per annum; and (ii) from November 1, 1988 to May 31, 1989, and July 16, 1989 to
May 31, 1990, the periods when she was refused payment of her salaries for not
accomplishing a Report for Duty Form - will be from the time petitioner Diaz submits
the required Report for Duty Form up to the full satisfaction thereof, is 6% per
annum.
WHEREFORE, the instant petition is DENIED. The assailed Decision of the Court of
Appeals in CA-G.R. CV No. 55165 is hereby AFFIRMED with MODIFICATION in that the
University of the Philippines, through its appropriate officials, is directed to pay
petitioner Elizabeth L. Diaz her withheld salaries 1) from July 1, 1988 to October 31,
1988, with legal interest at the rate of six percent (6%) per annum, computed from
the date of the Decision of the R TC on April 17, 1996 until fully paid; and 2) from
November 1, 1988 to May 31, 1989 and July 16, 1989 to May 31, 1990, with legal
interest at the rate of six percent (6%) per annum computed from the date
petitioner Elizabeth L. Diaz submits the documents required by the University of the
Philippines until fully paid.
SO ORDERED.
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
Acting Chairperson
WE CONCUR:
DIOSDADO M. PERALTA*
Associate Justice
LUCAS P. BERSAMIN
Associate Justice ESTELA M. PERLAS-BERNABE

Associate Justice
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division Acting
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.
Chief Justice
Footnotes
* Per Raffle dated January 18, 2016.
1 Rollo, pp. 70-88; penned by Associate Justice Magdangal M. de Leon with
Associate Justices Mariano C. de! Castillo (now a member of this Court) and
Regalado E. Maambong concurring.
2 Id. at 106-107.
3 Entitled Elizabeth Diaz v. Georgina R. Encanto, Ernesto G. Tabujara, Gemino H.
Abad, Jose V. Abueva and University of the Philippines.
4 Rollo, pp. 109-167.
5 Id. at 168-170.
6 Id. at 124-125.
7 Exhibits of Defendants, Exh. 69, p. 2251.
8 Id.
9 Rollo, p. 73.
10 Id. at 71-75.
11 Id. at 166-167.
12 Id. at 169-170.
13 Id. at 169.
14 Records, pp. 2,575-2,576.
15 Id. at 2,361-2,362.
16 Id. at 2,577-2,576.
17 Id. at 2,580-2,581.
18 CA rollo, pp. 62-174.
19 Id. at 251-326.
20 Rollo, p. 71.
21 CA rollo, pp. 421-422.
22 Rollo, p. 87.
23 Id. at 81.
24 Id. at 84.
25 Id. at 21-22.
26 Mcleod v. National labor Relations Commission, 541 Phil. 214, 242 (2007).
27 Rollo, pp. 204; 239.
28 Jarantilla, Jr. v. Jarantilla, 651 Phil. 13, 26 (2010).
29 Records, pp. 1-13.
30 Id. at 85.
31 Barons Marketing Corp. v. Court of Appeals and Phelps Dodge Phils., Inc., 349
Phil. 769, 775 (1998).
32 Dart Philippines, Inc. v. Calogcog, 613 Phil. 224, 234 (2009).
33 Id. at 235.
34 Records, pp. 1077-1083.
35 Implementation of Sec. 12, Art. XVIII of the 1987 Constitution and
complementing Administrative Circular No. 1 of January 28, 1988 on Expeditious
Disposition of Cases Pending in the Supreme Court; November 8, 1988.
36 Records, p. 177.
37 Id. at 175-179.
38 Rollo, pp. 80-81.

39 Id. at 164 and 169.
40 Id. at 66.
41 Barons Marketing Corp. v. Court of Appeals and Phelps Dodge Phils., Inc., supra
note 31 at 778.
42 Rollo, p. 81; Records, p. 178.
43 Id. at 32.
44 TSN, September 13, 1994, p. 31.
45 TSN, August 24, 1994, pp. 35-36.
46 TSN, September27, 1994, pp. 6-7.
47 Rollo, pp. 46-47.
48 Records, p. 289.
49 Dart Philippines, Inc. v. Calogcog, supra note 32 at 237.
50 Id. at 238.
51 G.R. No. 189871, August 13, 2013, 703 SCRA 439.
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1.

Cathay Pacific Airways Ltd. Vs. Sps. Fuentebella

c) the sum of P50,000.00 as moral damages.

THE PETITIONER'S BUS WAS NOT "OUT OF LINE;"

situation as he is in a position to observe the vehicle in front of him.14 Thus, as

defendant-appellant to overturn this presumption was meticulously explained by the

damages suffered; there must be unbiased proof of the deceased's average

c) P25,000.00 as moral damages.

Punong Barangay or Chairperson of

(2) That such demand has been rejected;

February 15, 2016

Commission" (guidelines). Sections 1 and 2 of these guidelines provided:

WHEREFORE, premises considered, the decision of the Clubs Board of Directors

In the meantime, respondents filed an Opposition to Petitioners Urgent

We grant the petition.

of the rules on the grounds as follows:

Lastly, contrary to respondents position, the recommendation of the House Committee to

WHEREFORE, premises considered, the petition is GRANTED. The Resolutions dated

546 Phil. 1 (2007).

Rollo, pp. 408-409.

Id. at 598-601, 611-614.

Id. at 632-636, 644.

534 Phil. 34 (2006).

562 Phil. 974 (2007).

Rollo, pp. 651-703.

Id. at 1022, 1107-1108.

Calipay v. National Labor Relations Commission, 640 Phil. 458, 466

Philippine National Bank v. Commissioner of Internal Revenue, 678 Phil.

See Calipay v. National Labor Relations Commission, supra note 25, at

CA rollo, pp. 703-704.

Article VI (Id. at 106).

Article VII (Id. at 807-809).

According to Article XI Section 1 of the By-laws, the House Committee is

Sec. 1. Suspension and Expulsion. The Board of Directors, by the

a. Violation of articles of incorporation or the By-laws;

323 Phil. 575 (1996).

Spouses Custodio, supra, at 585-586, 588-589.

Article II, Section 1 of the By-laws (Rollo, p. 800).

Article II, Section 2 of the By-laws (Id.).

The Lawphil Project - Arellano Law Foundation

January 20, 2016

On July 4, 1988, Tabujara recommended instead that Diaz be granted a leave

As respondent Encanto was absolved of liability by the R TC in its September 1 7,

SIXTH ASSIGNMENT OF ERROR

No Payment of Other Damages

Associate Justice ESTELA M. PERLAS-BERNABE

38 Rollo, pp. 80-81.

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