[G.R. No. 146697.
July 23, 2002] In this automatic review, the convicted accused
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. LEONARDO FABRE y VICENTE, accused-
appellant.
DECISION
VITUG, J.:
Leonardo Fabre was adjudged guilty by the Regional
Trial Court, Br. VI, of Prosperidad, Agusan del Sur, of
raping his own daughter Marilou Fabre, and he was
sentenced to suffer the extreme penalty of death.
Fabre was indicted in an Information that read: [1]
That on or about 4:00 oclock in the afternoon of April 26,
1995 in the house of the accused located at Manat,
Trento, Agusan del Sur, Philippines and within the
jurisdiction of this Honorable Court, the above-named
accused by force, threats and intimidation, with lewd
design, did then and there willfully, unlawfully and
feloniously succeed in having sexual intercourse with his
own daughter MARILOU FABRE, a girl thirteen (13) years
of age, of good reputation, against her will and consent
to the damage and prejudice of the said victim consisting
of moral, actual and compensatory damages.
Accused pleaded not guilty to the crime charged. At
the trial, the prosecution presented the testimony of
Marilou, that of Adela Fabre, her mother and the wife of
the accused, and that of Dr. Reinerio Jalalon, the doctor
who examined Marilou, along with the medico-legal
certificate issued by Dr. Jalalon, the sworn statement of
Adela, and the criminal complaint signed by both Marilou
and Adela. The defense, during its turn in the
presentation of evidence, countered with the testimony
of the accused himself. It also called Adela Fabre back to
the witness stand.
The trial court gave credence to the evidence given
by the prosecution, particularly to the narration of the
young complainant, expressing a quote from an
observation once made by this Tribunal in one of its
decision that even when consumed with revenge, it
(would) take a certain amount of psychological depravity
for a young woman to concoct a story which (could) put
her own father for the rest of his remaining life in jail and
drag herself and the rest of her family to a lifetime of
shame.[2] Convinced that the accused committed the
crime of rape on his own daughter, the trial judge
disposed of the case thusly:
WHEREFORE, the Court finds accused LEONARDO FABRE
y VICENTE alias Nardo, GUILTY beyond reasonable doubt
as principal of the crime of RAPE as defined and
penalized under Article 335 of the Revised Penal Code as
amended by R.A. No. 7659 Section 11 thereof and hereby
imposes upon the accused Leonardo Fabre y Vicente alias
Nardo the penalty of DEATH; to pay the victim Marilou
Fabre civil indemnity in the amount of FIFTY THOUSAND
(P50,000.00) PESOS and the costs.[3]
assigned the following alleged errors committed by the
court a quo.
I
THE TRIAL COURT GRAVELY ERRED IN NOT GIVING
CREDENCE TO ACCUSED-APPELLANTS DEFENSE OF ALIBI
AND DENIAL.
II
ASSUMING IN ARGUENDO THAT ACCUSED-APPELLANT IS
GUILTY, THE TRIAL COURT GRAVELY ERRED IN IMPOSING
THE DEATH SENTENCE UPON ACCUSED-APPELLANT
DESPITE THE FAILURE OF THE PROSECUTION TO
ESTABLISH THE ACTUAL AGE OF MARILOU FABRE AT THE
TIME OF THE COMMISSION OF THE ALLEGED RAPE.[4]
The defense argues, rather desperately, that the
testimony of appellant should acquire added strength for
the failure of the prosecution to conduct cross-
examination on him and to present any rebuttal
evidence. The cross-examination of a witness is a
prerogative of the party against whom the witness is
called.[5] The purpose of cross-examination is to test the
truth or accuracy of the statements of a witness made on
direct examination.[6] The party against whom the witness
testifies may deem any further examination unnecessary
and instead rely on any other evidence theretofore
adduced or thereafter to be adduced or on what would
be believed is the perception of the court
thereon. Certainly, the trial court is not bound to give full
weight to the testimony of a witness on direct
examination merely because he is not cross-examined by
the other party.
The alibi of appellant itself would not appear to be
deserving of serious consideration. His account that at
the time of the alleged rape he was working at a coconut
plantation, just about one kilometer away from the place
of the crime, hardly would amount to much. Nor would
the testimony of Adela Fabre, his wife, merit any better
regard. At first, she testified that on the day of the rape
incident, she had left their house at four oclock in the
afternoon. Later, however, she changed her story by
saying that she had left the house in the morning and
returned only at ten oclock that same morning, staying
home the whole day thereafter. In any event, in order
that alibi might prosper, it would not be enough for an
accused to prove that he was somewhere else when the
crime was committed; he would have to demonstrate
likewise that he could not have been physically present at
the place of the crime or in its immediate vicinity at the
time of its commission. [7] Clearly, in the instant case, it
was not at all impossible nor even improbable for
appellant to have been at the crime scene.
Upon the other hand, the evidently candid and
straightforward testimony of Marilou should be more
than enough to rebut the claim of innocence made by
appellant.[8]
On 26 April 1995, around four oclock in the
afternoon, Marilou Fabre was alone in their house in
Barangay Manat, Trento, Agusan del Sur. Adela Fabre, her
mother, had gone to Purok 4 to buy fish while her siblings
were out strolling. After cleaning their yard, Marilou went
to the adjacent palm plantation, about fourteen to fifteen
meters away from their house, to gather palm
oil. Marilou had been gathering palm oil for about a
minute when her father, appellant Leonardo Fabre,
arrived. He suddenly gripped Marilous hands and forcibly
dragged her towards the house. He closed the door and
removed his daughters underwear. He took off his pants
and asked Marilou to hold his sex organ. In tears, Marilou
obeyed her father. He then began touching the girls
breasts and vagina. He forced her to lie down, mounted
her and sought to insert his penis into her organ. Marilou
cried in pain. When after some time he still could not
insert his penis into Marilous vagina, he applied coconut
oil to lubricate his and his daughters sexual organs. He
was finally able to penetrate her. Once inside her,
appellant made push and pull movements until he was
through with her. Appellant threatened to kill her if she
would tell anybody about the sexual encounter. The
young girls mother, Adela Fabre, arrived home about five
oclock that afternoon but, remembering her fathers
threats, she kept mum about her ordeal.
The credibility of Marilou would not be all that
difficult to discern from her narration that, as so
described by the prosecution, was full of graphic details
which a young provincial girl could not possibly have
concocted and which could only have come from
someone who must have personally experienced a brutal
rape assault. She testified:
PROS. ENRIQUEZ:
Q Now, Miss Marilou, can you recall where were you
on April 26, 1995 at about 4:00 oclock in the
afternoon?
A Yes, sir.
Q Where were you that time?
A In our house, sir.
Q What were you doing in your house?
A I was cleaning our yard, sir.
Q How far is your yard where you were doing some
works from your house?
A (Witness pointing a distance of around 2 to 3
meters.)
Q Now, while you were doing your work in your yard,
can you recall if there was an incident that
occurred?
A Yes, sir.
Q What was that incident that occurred?
A While I was gathering a palm oil my father arrived
and suddenly dragged me to our house, sir.
COURT:
Q Where is your house located?
A At Purok 4, Manat, Trento, Agusan del Sur, Your
Honor.
PROS. ENRIQUEZ:
Q What did you do when your father dragged you to
your house?
A Because I was dragged by my father to our house I
just went with him, sir.
Q While you were in your house after having been
dragged by your father, what happened if any?
A He closed our house and he removed my panty, sir.
Q And after removing your panty, what did your
father do next?
A He removed his pants and he let me hold his penis,
sir.
Q And what did you do next after holding his penis?
A I was crying, sir.
Q While you were crying what did your father do?
A He was touching my breast and my vagina, sir.
Q After that what did he do next?
A He let me lie down, sir.
Q And while lying down, what did your father do?
A He mounted me and he inserted his penis, to my
vagina, sir.
Q And what did you feel while your father was
inserting his penis to your vagina?
A Very painful, sir.
Q And what did you do while your father was
inserting his penis to your vagina?
A I was crying, sir.
Q And while you were crying what did your father do
if any?
A He told me not to tell anybody because if I will do it
he will kill me, sir.
Q Now, did your father find it easy to insert his penis
to your vagina?
A It [took] a long time, sir.
Q And did he use anything to facilitate the insertion of
his penis to your vagina?
A Yes, sir.
Q What was that?
A He used coconut oil in his penis and also in my
vagina so that his penis can easily insert my
vagina, sir.
Q Now, while his penis was in your vagina, can you tell
this Honorable Court if he did anything also on
top of you and while his penis was inside your
vagina?
A None, sir.
Q Did he make any movement?
A Yes, sir.
 Q What was that movement?
A He made a push and pull movement on my body,
sir.
Q Now, while your father was doing it to you where
was your mother that time?
A She was in Purok 4, Manat, Trento, Agusan del Sur,
sir.
Q And did you report this incident to your mother?
A Not yet sir because he told me not to tell anybody.
Q So when did you had a chance to tell your mother
about this incident?
A On May 1, 1995, sir.
Q And what did your mother do after you reported to
her this incident?
A She reported [the matter] to the Kagawad, sir. [9]
It has been stressed quite often enough that the
testimony of a rape victim, who is young and still
immature, deserves faith and credence[10] for it simply
would be unnatural for a young and innocent girl to
invent a story of defloration, allow an examination of her
private parts and thereafter subject herself and her
family to the trauma of a public trial unless she indeed
has spoken the truth.[11] Most especially, a daughter
would not accuse her own father of such a serious
offense or allow herself to be perverted if she were not
truly motivated by a desire to seek a just retribution for a
violation brazenly committed against her. [12]
Confirming Marilous story was the medical report
and testimony of Dr. Reinerio Jalalon, the government
physician stationed at the Bunawan District Hospital in
Agusan del Sur, who examined Marilou. Dr. Jalalon made
these findings; viz:
Abrasion at (L) labia minora at 3:00 oclock position.
Vaginal smear (-) negative for spermatozoa.[13]
The doctor concluded that it was possible that genital
penetration on the victim did occur and that a penis
could have caused the abrasion on the victims labia
minora.
There is merit, however, in the plea of the defense,
seconded by the prosecution, that the penalty of death
imposed by the trial court should be reduced to the
penalty of reclusion perpetua. Article 335 of the Revised
Penal Code, as amended by Section 11 of Republic Act
No. 7659, provides:
The death penalty shall also be imposed if the crime of
rape is committed with any of the following attendant
circumstances:
1. when the victim is under eighteen (18) years
of age and the offender is a parent,
ascendant, stepparent, guardian,
relative by consanguinity or affinity
within the third civil degree, or the
common-law-spouse of the parent of
the victim.
While the father-daughter relationship between
appellant and private complainant has been sufficiently
established, the fact of minority of the victim, although
specifically averred in the information, has not been
equally shown in evidence. These qualifying
circumstances of relationship and minority are twin
requirements that should be both alleged in the
information and established beyond reasonable doubt
during trial in order to sustain an imposition of the death
penalty.[14] Neither an obvious minority of the victim nor
the failure of the defense to contest her real age always
excuse the prosecution from the desired proof required
by law.[15] Judicial notice of the issue of age without the
requisite hearing conducted under Section 3, Rule 129, of
the Rules of Court, would not be considered sufficient
compliance with the law. The birth certificate of the
victim or, in lieu thereof, any other documentary
evidence, like a baptismal certificate, school records and
documents of similar nature, or credible testimonial
evidence, that can help establish the age of the victim
should be presented.[16] While the declaration of a victim
as to her age, being an exception to the hearsay
proscription, would be admissible under the rule on
pedigree, the question on the relative weight that may be
accorded to it is a totally different matter.[17]
In the case at bar, the complainant claimed that she
was 13 years old at the time of the incident. [18] Her
mother stated, however, that she was 14. [19] The birth
certificate of the victim, at least already in her teens, was
not presented to ascertain her true age on the bare
allegation that the document was lost when their house
burned down.[20] No other document that could
somehow help establish the real age of the victim was
submitted.
The Court, in sum, upholds the decision of the trial
court convicting Leonardo Fabre of the crime of rape but
must reduce, on account of insufficiency of proof on the
qualifying circumstance of minority of the victim, the
penalty of death to reclusion perpetua. With respect to
the civil liability, the Court sustains the award of
P50,000.00 civil indemnity but, in keeping with prevailing
jurisprudence, must additionally order the payment of
P50,000.00 moral damages[21] and P20,000.00 exemplary
damages.[22]
WHEREFORE, the judgment of the court a
quo finding LEONARDO FABRE guilty of rape is AFFIRMED
but the sentence of death therein imposed should be, as
it is hereby so, reduced to reclusion perpetua. The award
of P50,000.00 civil liability in favor of victim, Marilou
Fabre, is sustained; however, appellant is further ordered
to pay to the victim the amounts of P50,000.00 moral
damages and P20,000.00 exemplary damages.
SO ORDERED
 [G.R. No. 142556. February 5, 2003]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs. JESUS PEREZ y SEBUNGA, accused-
appellant.
DECISION
PER CURIAM:
For automatic review is the Decision [1] dated
October 26, 1999 of the Regional Trial Court of Iba,
Zambales, Branch 69, in Criminal Case No. RTC-2116-I,
finding appellant Jesus S. Perez (appellant for brevity),
guilty of raping Mayia P. Ponseca (Mayia for brevity) and
imposing on appellant the death penalty.
On January 22, 1997, the Second Assistant
Provincial Prosecutor[2] of Zambales filed an
[3]
Information charging appellant with the crime of rape
penalized under Article 335 of the Revised Penal Code in
relation to Section 5 (b), Article III of Republic Act No.
7610, committed as follows:
That on or about the 17th day of January, 1997 at 12:00
noon at Sitio Baco, Brgy. Macarang, in the Municipality of
Palauig, Province of Zambales, Philippines, and within the
jurisdiction of this Honorable Court, the said accused,
with lewd design and by means of coercion, inducement
and other consideration, did then and there, wilfully (sic),
unlawfully and feloniously have sexual intercourse with
one Mayia P. Ponseca, a minor of 6 years old, without her
consent and against her will, to the damage and
prejudice of the latter.
Upon arraignment, appellant, assisted by
counsel de officio Atty. Genaro N. Montefalcon, pleaded
not guilty to the offense charged.[4] Subsequently, the
trial court allowed the withdrawal of Atty. Montefalcon as
counsel for health reasons. The trial court appointed Atty.
Roberto Blanco as appellants counsel de oficio.[5]
At the pre-trial, the prosecution and defense
stipulated on the following facts:
1. The identity of the accused;
2. The accused was at the time of the incident in the
vicinity thereof;
3. The victim in this case, Mayia P. Ponseca, was born on
23 May 1990 as evidenced by her birth certificate;
4. That after the incident, the child was subjected to a
medico-legal examination to which a medico-legal
certificate was issued by Dr. Editha Divino.
The prosecution marked in evidence the birth certificate
of the victim Mayia O. Ponseca as Exhibit A, and the
medico-legal certificate issued by Dr. Editha Divino as
Exhibit B.[6]
Thereafter, trial ensued. The prosecution presented
the following witnesses: the victim, Mayia Ponseca; the
victims mother, Hermie Ponseca; the victims father, Osias
Ponseca; Virginia Espejo Giron; and Dr. Editha dela Cruz
Divino. On the other hand, the defense presented
appellant and his employer, Bartolome Tolentino.
The Office of the Solicitor General (OSG for brevity)
summarized the prosecutions version of the incident in
the appellees brief, to wit:
On January 17, 1997, about noontime, in Sitio Baco,
Barangay Macarang, Palauig, Zambales, six-year old
Mayia Ponseca was walking along Sulok on her way to
her house in Sitio Camiling when appellant Jesus Sebunga
Perez approached her (pp. 7-8, TSN, December 15,
1998). Appellant introduced himself as Johnny and
immediately afterwards, strangled her neck and boxed
her abdomen (p. 10, TSN, December 15, 1998). Still in
shock, Mayia fell down (id.). At that point, a dog arrived
and barked at them.
Appellant then proceeded to lower his black denim pants
while simultaneously removing Mayias panty. He then
inserted his penis inside Mayias vagina (p. 11, id.). Mayia
felt excruciating pain in her private parts (sic) but was not
able to repel her aggressor whose strength and weight
totally engulfed her. Her only recourse was to cry while
her young body was being ravished (p. 13, id.).
After satisfying his beastly desires, appellant raised his
pants and ran away (p. 14, id.). Notwithstanding that her
vagina was bleeding profusely and her dress now covered
with her own blood, Mayia managed to stand up and
seek help. She ran to the house of Virginia Giron, which
was only fifty (50) meters away from the scene of the
crime. In fact, Giron was outside when she heard her dog
barking (apparently, it was the same dog barking at
appellant while he was consummating his lust on Mayia,
pp. 2-3, TSN, January 12, 1999; p. 11, TSN, December 15,
1998). Looking at the direction of the noise, she saw a
confused Mayia approaching her with blood dripping
from her private parts and thighs. When Giron asked
Mayia what happened, the latter shouted ni-rape ako, ni-
rape ako (p. 4, TSN, January 4, 1999).Giron then
summoned her husband and other companions to look
for Mayias attacker but was unable to find him. Giron
then proceeded to Hermie Ponseca and Osias Ponseca,
Mayias parents, to inform them of what happened (p. 5,
TSN, January 5, 1999; p. 2, TSN, January 19, 1999).
When her parents asked Mayia if she knew her assailant,
the latter answered the name Johnny. (id.) The couple
brought their daughter to the President Ramon
Magsaysay Memorial Hospital for medical examination
(p. 2, TSN, February 24, 1999). She was examined by Dra.
Editha Dela Cruz Divino, who issued a medico-legal
certificate dated January 23, 1997 stating the following:
a. Bleeding of genitalia coming from median
laceration at the vaginal floor
around four (4) centimeters in
size. Possible cause, a fall and
then hitting a sharp object and
also an alleged sexual assault
(p. 4, TSN, February 24, 1999).
 b. Genitalia had hymenal lacerations at 3, 6, 9
and 12 oclock positions.
(pp. 4-6 id.)
Because of the extent of the damage on her genitals,
Mayia undertook an IV sedation operation to repair her
lacerations (p. 6, id.) During her confinement at the
hospital, the Ponseca couple reported the incident to the
Palauig PNP Police Station and recounted their daughters
narration including the name of the culprit as Johnny
who, according to their neighbors, was a worker at the
fishpond of Bartolome Tolentino (pp. 11-12, TSN, January
5, 1999). Police operatives then proceeded to the said
fishpond and arrested appellant. After her discharge from
the hospital, Mayia learned that appellant was already
apprehended (pp. 3-8, TSN, January 5, 1999). In the
police station, she was able to positively identify the
appellant as the person who sexually assaulted her (p.
18, TSN, December 15, 1998).[7]
Appellant denied raping Mayia. Appellant testified
that on the date of the alleged rape incident, he was
working at a fishpond at Macarang, Zambales. He heard
of the rape of a young girl from his manager, Bartolome
Tolentino (Tolentino for brevity). [8] Appellant further
testified that on January 25, 1997, policemen went to the
fishpond where he worked. The policemen arrested
appellant and brought him to the police station at
Palauig. Later, the policemen took him to the municipal
jail of Palauig.
On cross-examination, appellant testified that his
nickname is not Johnny but Jessie. [9] He testified that on
January 17, 1997, at around 12 oclock noon, he left the
fishpond and walked home to Barangay Alwa which was
about thirty meters from the fishpond.[10]
The defense formally offered the testimony of
witness Tolentino to prove that appellant was employed
as caretaker of Tolentinos fishpond for almost two years
before the alleged rape incident. Appellant was
purportedly of good moral character while employed as a
fishpond caretaker. The prosecution admitted the offer of
testimony. Hence, the trial court dispensed with the
testimony of Tolentino in open court.[11]
After trial, the court a quo rendered judgment[12] on
October 26, 1999, the dispositive portion of which reads:
WHEREFORE, foregoing considered, accused Jesus Perez
y Sabung (SIC) is found GUILTY beyond reasonable doubt
of the crime of Statutore Rape, defined and penalized
under Article 335 of the Revised Penal Code with the
qualifying circumstance that the victim was only 6 years
old at the time of the commission of the offense, in
relation to Section 5 (b), Article III, Republic Act 7610, and
is sentenced to suffer the penalty of DEATH. Jesus Perez is
directed to pay to the private complainant the amount of
Seventy-Five Thousand Pesos (P75,000.00) as and by way
of civil indemnity and Fifty Thousand (P50,000.00) as and
by way of moral damages.
Hence, this automatic review.
In his brief, appellant raises the following lone
assignment of error:
THE COURT A QUO GRAVELY ERRED IN FINDING THAT
THE GUILT OF THE APPELLANT HAS BEEN PROVEN
BEYOND REASONABLE DOUBT.
Appellant contends that his identification in open
court by Mayia was highly irregular. Appellant points out
that the prosecutor had already identified him as the
man wearing an orange t-shirt when the prosecutor
asked Mayia to identify her alleged rapist. Appellant
stresses that when Mayia identified him in open court,
she referred to him as a man named Johnny and did not
give any description or any identifying mark. Moreover,
appellant claims he was alone in the cell when Mayia
identified him after the police arrested him. Appellant
bewails that the identification was not done with the
usual police line-up.
Appellants contention is untenable.
As a rule, leading questions are not
allowed. However, the rules provide for exceptions when
the witness is a child of tender years [13] as it is usually
difficult for such child to state facts without prompting or
suggestion.[14] Leading questions are necessary to coax
the truth out of their reluctant lips. [15] In the case at bar,
the trial court was justified in allowing leading questions
to Mayia as she was evidently young and unlettered,
making the recall of events difficult, if not uncertain. [16] As
explained in People v. Rodito Dagamos:[17]
The trend in procedural law is to give wide latitude to the
courts in exercising control over the questioning of a child
witness. The reasons are spelled out in our Rule on
Examination of a Child Witness, which took effect on
December 15, 2000, namely, (1) to facilitate the
ascertainment of the truth, (2) to ensure that questions
are stated in a form appropriate to the developmental
level of the child, (3) to protect children from harassment
or undue embarrassment, and (4) avoid waste of
time. Leading questions in all stages of examination of a
child are allowed if the same will further the interests of
justice. The Court has repeatedly stated that it is highly
inconceivable for a child of tender age, inexperienced in
the ways of the world, to fabricate a charge of
defloration, undergo a medical examination of her private
part, subject herself to public trial, and tarnish her
familys honor and reputation, unless she was motivated
by a strong desire to seek justice for the wrong
committed against her.[18]
Mayia recounted her harrowing experience, thus:
Q What time was this when Johnny introduced
himself to you?
A I do not recall, mam.
Q Was it in the morning, noontime or in the
afternoon or in the evening?
A Noontime, mam.
Q So, when Johnny said, Ako si Johnny, what
did you do?
A None, mam.
Q After that when Johnny said, Ako si Johnny,
what happened?
A He strangled (sinakal) me.
Q Were there persons around in the place
when Johnny strangled you?
A None, mam.
Q So, what did he do then after he strangled
you?
A He boxed me on my stomach, mam.
Q When he boxed you on your stomach, what
happened to you?
A I was shocked, mam.
Q Did you fall down?
A Before that, I was already lying down, so
when he boxed me, I was shocked.
Q You said that you were already lying
down. Who made you lie down?
A The person, mam.
Q Why were you shocked, Mayia?
A Because he strangled me and boxed me.
Q After he boxed you on your abdomen, what
happened? What else did he do to you?
A There was a dog that arrived in the place
and it barked at us. Then Johnny moved
in a hurry by penetrating my private part
and after he dressing (SIC) me, he ran
away.
Q You said that Johnny penetrated your private
part. With what instrument did he use in
penetrating your private part?
A His penis, mam.
Q What was he wearing at that time?
A A black denim, mam.
Q When he used his penis in entering your
private part, did he remove his pants?
A No, mam.
Q What did he do with his pants?
A He brought out his penis, mam.
Q You mean to say Mayia, he lowered his
pants?
A Yes, mam.
Q What about you, were you wearing any
panty?
A Yes, mam.
Q What was your clothes at that time?
A A dress, mam.
Q When his penis entered your vagina Mayia,
did he remove your panty?
A Yes, mam.[19]
The identity of appellant as the rapist has been
established by the clear, convincing and straightforward
testimony of Mayia. During the trial, she testified as
follows:
Q Mayia, there is a man sitting wearing orange
t-shirt, do you know this man?
A Yes, mam.
Q Do you know his name?
A Yes, mam.
Q What is his name?
A Johnny, mam.
Q Why do you know him?
A Because he introduced himself to me.
Q Where did he introduced himself to you?
A At Sulok, mam.
Q Sulok is a place?
A Yes, mam.
Q Do you have any companion when this man
introduced himself to you?
A None, mam.
Q How did he introduce himself to you?
A The man introduced himself to me by saying,
Kilala mo ba ako? Hindi po. Ako si Johnny.
[20]
The trial court further asked Mayia:
Q You were talking of a certain Johnny. s this
Johnny in court now?
A Yes, sir.
Q Can you point to him?
A Yes, sir.
Q Point to him.
A (Witness pointing to the person sitting at the
accused bench and when asked of his
name answered Jesus Perez)
Q Is this Johnny whom you point to the person
whom you saw in that Sulok?
A Yes, sir. [21]
Mayias simple, positive and straightforward
recounting on the witness stand of her harrowing
experience lends credence to her accusation. Her tender
age belies any allegation that her accusation was a mere
invention impelled by some ill-motive. As the Court has
stressed in numerous cases, when a woman or a child
victim says that she has been raped, she in effect says all
that is necessary to show that rape was indeed
committed.[22]Mayia had a clear sight of appellants face
since the rape occurred at noontime.[23] Her proximity to
appellant during the sexual assault leaves no doubt as to
the correctness of her identification for a man and
woman cannot be physically closer to each other than
during the sexual act.[24] Thus, even if Mayia did not give
the identifying marks of appellant, her positive
identification of appellant sufficed to establish clearly the
identity of her sexual assailant. Appellants claim that the
police improperly suggested to Mayia to identify
appellant is without basis. True, Mayia did not identify
appellant in a police line-up when Mayia identified
appellant in his cell. However, appellant, in his testimony
admitted that he had two other companions in his cell.
[25]
Moreover, the Court has held that there is no law
requiring a police line-up as essential to a proper
identification. Even without a police line-up, there could
still be a proper identification as long as the police did
not suggest such identification to the witnesses. [26]The
records are bereft of any indication that the police
suggested to Mayia to identify appellant as the rapist.
Mayias identification in open court of appellant as her
rapist dispels any doubt as to the proper identification of
appellant. Mayia positively identified and pointed to
appellant as her rapist. We are satisfied that her
testimony, by itself, is sufficient identification of her
rapist. As held in People v. Marquez:[27]
xxx. Indeed, the revelation of an innocent child whose
chastity was abused deserves full credit, as the
willingness of complainant to face police investigation
and to undergo the trouble and humiliation of a public
trial is eloquent testimony of the truth of her
complaint. Stated differently, it is most improbable for a
five-year old girl of tender years, so innocent and so
guileless as the herein offended party, to brazenly impute
a crime so serious as rape to any man if it were not true.
In his Reply Brief, appellant contends that even assuming
that the guilt of appellant has been proven beyond
reasonable doubt, the trial court erred in imposing the
death penalty.Appellant maintains that the death penalty
cannot be imposed on him for failure of the prosecution
to prove Mayias age by independent evidence. Appellant
points out that while Mayias birth certificate was duly
marked during the pre-trial, it was not presented and
identified during the trial. Appellant asserts that Mayias
minority must not only be specifically alleged in the
Information but must also be established beyond
reasonable doubt during the trial. Appellants argument
deserves scant consideration. At the pre-trial, the parties
mutually worked out a satisfactory disposition of the
criminal case. Appellant, assisted by counsel, signed a
Pre-Trial Agreement[28] which, as incorporated in the Pre-
Trial Order, stated that:x x x.
3. The victim in this case, Mayia P. Ponseca was born on
23 May 1990 as evidenced by her birth certificate;
x x x. (Emphasis supplied)
During the pre-trial, the prosecution marked in
evidence Mayias birth certificate as Exhibit A. [29] The
prosecution submitted its Offer of Evidence[30] which
included Exhibit A, a certified true copy of Mayias birth
certificate. The trial court admitted Exhibit A[31] without
any objection from the defense.
The purpose of pre-trial is to consider the following:
(a) plea bargaining; (b) stipulation of facts; (c) marking for
identification of evidence of the parties; (d) waiver of
objections to admissibility of evidence; (e) modification
of the order of trial if the accused admits the charge but
interposes lawful defenses; and (f) such matters as will
promote a fair and expeditious trial of the criminal and
civil aspects of the case.[32] Facts stipulated and evidence
admitted during pre-trial bind the parties. Section 4, Rule
118 of the Revised Rules of Criminal
Procedure[33]provides:
SEC. 4. Pre-trial order. - After the pre-trial conference, the
court shall issue an order reciting the actions taken, the
facts stipulated, and evidence marked. Such order shall
bind the parties, limit the trial to matters not disposed
of, and control the course of the action during the trial,
unless modified by the court to prevent manifest
injustice. (Emphasis supplied)
Moreover, Mayia herself testified in open court as
to her age. During the trial on December 15, 1998, which
was about twenty-three (23) months after the rape
incident occurred on January 17, 1997, Mayia testified on
cross-examination that she was 8 years old last May 23.
[34]
Thus, by deduction, since Mayia was born on May 23,
1990 as shown in her birth certificate, she was about six
(6) years and seven (7) months old on January 17, 1997,
the day the crime took place. We rule that the
prosecution has indisputably proven that Mayia was
below seven years old at the time appellant raped her.
Finally, the trial court was correct in imposing the death
penalty on appellant. Under Article 335 [35] of the Revised
Penal Code, as amended by Section 11 of Republic Act
No. 7659,[36]the death penalty shall be imposed if the
crime of rape is committed against a child below seven
(7) years old. Mayia was six (6) years and seven (7)
months old when appellant raped her. If rape is qualified
by any of the circumstances[37] warranting the imposition
of the death penalty, the civil indemnity for actual or
compensatory damages is mandatory. [38] Following
prevailing jurisprudence, the civil indemnity is fixed at
P75,000.00. In addition, moral damages of P50,000.00
should also be awarded to the rape victim without need
for pleading or proving it.[39]
WHEREFORE, the Decision dated October 26, 1999
of the Regional Trial Court of Iba, Zambales, Branch 69, in
Criminal Case No. RTC-2116-I, finding appellant Jesus S.
Perez guilty beyond reasonable doubt of the crime of
qualified rape, sentencing him to suffer the death
penalty,[40] and ordering him to pay the victim Mayia P.
Ponseca the amount of P75,000.00 as civil indemnity and
P50,000.00 as moral damages, is AFFIRMED in toto.
In accordance with Article 83 of the Revised Penal
Code, as amended by Section 25 of the Republic Act No.
7659, upon the finality of this Decision, let the records of
this case be forthwith forwarded to the Office of the
President of the Philippines for possible exercise of the
pardoning power. SO ORDERED.
 [G.R. No. 139412. April 2, 2003]
THE PEOPLE OF THE PHILIPPINES, appellee, vs. JAIME
CASTILLANO, SR. alias Talino, RONALD
CASTILLANO alias Nono and JAIME
CASTILLANO, JR. alias Junjun, accused,
RONALD CASTILLANO alias Nono and JAIME
CASTILLANO, JR. alias Junjun, appellants.
DECISION
CALLEJO, SR., J.:
This is an appeal from the Decision [1] of the Regional
Trial Court of Pili, Camarines Sur, Branch 31, in Criminal
Case No. P-2542, convicting appellants Ronald Castillano
alias Nono and Jaime Castillano, Jr. of murder, meting on
each of them the penalty of reclusion perpetua and
ordering them to pay, jointly and severally, damages to
the heirs of the victim Diosdado Volante.
The Evidence or the Prosecution
Diosdado Volante, who eked out a living as a farmer,
his wife Luz,[2] and their four children lived in their
farmland located in the outskirt of Sitio Danawan,
Barangay Sagrada, Bula, Camarines Sur.
About 200 meters away from Diosdados farmland
was the farmhouse of Jaime Castillano, Sr. [3] He tasked his
son, Jaime Castillano, Jr., to take care of the farmhouse
and allowed him to reside there. [4] Jaime, Sr., his wife
Concepcion, their son Ronald (Nono) Castillano and other
children lived at their family residence in Sagrada, Bula,
Camarines Sur, approximately three kilometers away
from their farmhouse in Sitio Danawan. [5]
Sometime in the early part of June 1996, [6] Jaime, Sr.
fired his gun indiscriminately. Afraid that a stray bullet
might hit any member of his family, Diosdado accosted
Jaime, Sr. and asked him to desist from firing his gun
indiscriminately. Jaime, Sr. resented the intrusion. He
remonstrated that neighbors did not even complain
about him firing his gun. A heated altercation ensued.
Jaime, Sr. then fired his gun towards the house of
Diosdado. The incident germinated deep animosity
between the two and their respective families. [7] Jaime,
Sr. always carried a bolo whenever he passed by the
house of Diosdado.
On July 8, 1996, between 5:00 p.m. to 6:00 p.m.,
Levy Avila, a teacher, was in his house doing some
repairs. He noticed Jaime, Jr. and Ronald talking by the
roadside near the gate of his (Levys) house. Levy
overheard the two planning to go to Diosdados house.
Jaime, Jr. and Ronald even told Levy: Ayaw namin kasing
inaasar. Suspecting that the two were intending to harm
Diosdado, Levy urged them to amicably settle their
differences with Diosdado.
At around 8:00 p.m., Luz and Diosdado were about
to retire for the night. Their children were already fast
asleep. Diosdado was tired after a days work of spraying
chemicals at the rice field. He reclined on a bamboo
bench near the main door of their house. A kerosene
lamp lighted the house. Suddenly, Luz heard voices near
their house. She saw Jaime, Sr. holding a flashlight and his
two sons, Jaime Jr. and Ronald, on their way to the house.
Luz immediately alerted her husband and told him that
the Castillanos were in their yard. However, Diosdado
was nonchalant and simply told Luz not to mind them. All
of a sudden, Jaime, Sr. fired his gun at Diosdados house.
Terrified, Luz hastily carried her baby daughter Mary
Jane, sought cover and hid near the rear door. She was
about five meters away from her husband when the
Castillanos barged inside their house and ganged up on
Diosdado. Jaime, Jr. and Ronald, armed with bladed
weapons, took turns in stabbing Diosdado. Ronald
stabbed Diosdado on the right side of his breast, right
thigh and on the back. He also struck him with a one-
meter long pipe. Not satisfied, Jaime, Sr. fired his gun
hitting the right thigh of Diosdado. Luz was so shocked by
the sudden turn of events. To silence her one year old
baby, she breastfed her. As soon as she could, Luz fled to
the rice paddies where she hid for a time. The Castillanos
fled on board a jeep parked in the NIA road about 200
meters from the house of Diosdado. When Luz returned
to their house, she saw her husband sprawled on the
ground in a pool of his own blood. Diosdado, at the point
of death, asked her for help. Not knowing what to do, Luz
lost no time and ran to the house of their neighbor
Celedonio Espiritu for help. Celedonio rushed to the Bula
Police Station and reported the incident.
A team composed of SPO4 Jaime Javier, SPO3 Jaime
Bellano and SPO3 Nilo Fornillos, [8] the duty investigator,
[9]
went to the crime scene[10] to conduct an on-the-spot
investigation. Photographs were taken of the cadaver.
[11]
SPO3 Fornillo drew rough sketch [12] of the scene. The
policemen saw a bolo at the place where Diosdado was
sprawled near the door of their house. A scabbard of a
bolo was found a meter away from the house of
Diosdado.[13] The policemen also found a bullet hole on
the wall of the house.[14] Thereafter, the cadaver was
placed on a hamak [hammock] brought to the police
station. The police investigators turned over the scabbard
and bolo to the desk officer of the police station.[15]
From the police station, SPO4 Javier, SPO3 Bellano
and Sgt. Rogelio Palacio boarded their mobile police car
and set out a manhunt for the malefactors. They
proceeded towards the boundary in Sto. Domingo where
they put up a checkpoint. The police officers inspected
every vehicle that passed by. At around 12:45 a.m., SPO4
Javier halted a passenger jeepney. On board were Jaime,
Sr. and his two sons, Jaime Jr. and Ronald, each of whom
carried a bag containing their clothes. The policemen
brought the Castillanos to the police station. [16] The bags
of Jaime, Jr. and Ronald were turned over to the police
investigators. The three were placed under arrest for the
killing of Diosdado. The policemen submitted their
investigation report.[17]
In the meantime, at 7:00 a.m., Dr. Evangeline
Consolacion, the Municipal Health Officer of Bula,
conducted an autopsy on the cadaver of Diosdado. Her
autopsy report revealed the following findings:
External Findings
1. Incise Wound 3 cm Superior pinna R ear
2. Incise woud (sic) 10 cm. from nasal bridge extending to
mandible R
3. Stab wound 2 cm.x 5 cm. Epigastrium R
4. Stab wound 2 cm.x 4 cm. Epigastrium L
5. Stab wound 2.5 cm. Middle third Arm R
6. Stab wound 2cm x 5 cm. posterior Back.
7. Amputating middle third finger L
8. Hacked wound posterior ankle L
9. Gunshot wound POE 2 x 2cm. with contusion
collar medial aspect middle third R
thigh
No point of exit noted
Internal Findings:
Fracture femur with Foreign body bullet lodge in middle
third femur with hematoma about about 100 cc R thigh
Cause of Death; Hypovolemia secondary to Multiple Stab
Wound[18]
The doctor recovered a slug from the right thigh of
Diosdado. She later signed the victims post-mortem
certificate of death.[19] Senior Inspector Edgardo B.
Sambo, Chief of Police of Bula Police Station, filed with
the Municipal Trial Court of Bula, Camarines Sur, a
criminal complaint[20] for murder against the Castillano
brothers.[21] Judge Francisco O. Tolentino conducted the
preliminary examination and thereafter issued an order
of arrest against the Castillanos. [22] No bail was
recommended for their provisional release. On July 9,
1996, Luz gave a sworn statement to the police
investigators.[23]
On July 10, 1996, the accused were transferred to
the Tinangis Penal Farm. Senior Inspector Sambo
requested the PNP-CLRU5 Provincial Unit to conduct a
paraffin test on the Castillanos.[24]
On July 12, 1997, Major Lorlie Arroyo, the Head
Forensic Chemist of PNP-Region 5, conducted the paraffin
test on the Castillanos. Ronald was found positive for
gunpowder residue.[25]Jaime, Sr. and Jaime, Jr. were found
negative for gunpowder residue.
The MTC issued a subpoena requiring the accused
to submit their counter-affidavits from notice thereof.
However, the accused failed to submit any counter-
affidavit.[26]
On August 2, 1996, an Information for murder was
filed against Jaime, Sr., Ronald and Jaime Jr. with the
Regional Trial Court of Pili, Camarines Sur, Branch 31. The
accusatory portion of the Information reads:
That on or about the 8th day of July 1996 at about 8:00
oclock in the evening at Barangay Sagrada, Municipality
of Bula, Province of Camarines Sur, Philippines, and
within the jurisdiction of this Honorable Court, the
above-named accused conspiring, confederating and
mutually helping one another with intent to kill with
treachery and evident premeditation armed with a
handgun, bladed weapon and piece of wood did then
and there wilfully, unlawfully and feloniously attack,
assault and shot and stab one DIOSDADO VOLANTE y
LOZANO inflicting upon the latter several mortal wounds
on the different parts of his body which caused his
instantaneous death, to the damage and prejudice of the
heirs of said Diosdado Volante the amount of which to be
proven in Court.
ACTS CONTRARY TO LAW.[27]
Upon their arraignment[28] on August 29, 1996,
accused Jaime Sr., Jaime, Jr and Ronald, duly assisted by
counsel de parte, Atty. Avelino Sales Jr., pleaded not
guilty to the offense charged. Thereafter, trial on the
merits ensued.
Luz testified that when Diosdado was still alive, he
had an annual income of over P65,000. She spent
P18,000 for the funeral services, [29] P300 for religious
services,[30] P9,111 for food and other expenses[31] during
her husbands wake and funeral. She suffered sleepless
nights and mental anguish for his sudden death.
The Defenses and Evidence of the Accused
Ronald admitted when he testified that he killed
Diosdado but insisted that he did so in self-defense and in
defense of his brother Jaime, Jr. He asserted that his
father Jaime, Sr. and brother Jaime, Jr. had nothing to do
with Diosdados death. Ronald alleged that on September
8, 1996, at about 7:30 p.m., he was driving a passenger
jeepney on his way to the poblacion of Bula. Jaime, Jr.
flagged down the jeepney. He boarded the jeepney and
told Ronald that he was instructed by their mother to go
to the house of Jose del Socorro to ask the latter to
accompany them to their farmhouse in order to fetch
Gilda Albes. Ronald was armed with a .38 paltik gun,
while Jaime, Jr. was armed with a bolo sheathed in a
scabbard. They fetched Jose and then Ronald parked the
jeepney at the NIA road. Jaime, Jr., who was holding a
flashlight, walked along the footpath on top of a pilapil (a
narrow earthen barrier between two rice fields). Ronald
and Jose walked behind Jaime, Jr. As they passed by the
house of Diosdado, a man suddenly shouted: you shit, I
have await (sic) for you for a while, why just now.
Surprised, Jaime, Jr. forthwith focused his flashlight
towards the man who shouted. He was aghast when he
saw Diosdado armed with a bolo running towards them
and about to attack them with his bolo. Ronald shoved
Jaime, Jr. who fell on the muddy rice paddies below
the pilapil. Ronald forthwith shot Diosdado. Diosdado
took a step but fell on a kneeling position. Diosdado
brandished his bolo. Ronald shot Diosdado once more
but his gun misfired. To defend himself, Ronald took
Jaime, Jr.s bolo and hacked Diosdado to death. [32] Ronald
then fled from the scene and ran to the jeepney at the
NIA road. Jaime, Jr. and Jose boarded the jeep and left
the scene. Ronald threw the bolo along the way. He
threw his gun into a rice farm in Danawan.
Jaime, Jr. corroborated the testimony of his brother.
He, however, testified that he did not see his brother
hack and kill Diosdado. He claimed that when Ronald got
hold of his bolo, he ran away and proceeded to their
jeepney which was then parked at the roadside. Minutes
later, Ronald followed. They then hastily went home to
Sagrada and told their father Jaime, Sr. of the incident. [33]
Jose Del Socorro corroborated the testimony of
Ronald. He testified that on July 8, 1996, at about 5:00
p.m. he was on his way home when he met Diosdado
whom he noticed to be inebriated and unruly Diosdado
was throwing dried mud at the farmhouse of the
Castillanos and challenging the occupants of the
farmhouse to a fight. He advised Diosdado to stop what
he was doing and warned him that he was only inviting
trouble. Diosdado told him to mind his own business and
not to intervene. Jose thereafter left Diosdado and went,
home.[34] When Jose arrived home, Dominador Bria was
waiting for him. He and Dominador talked business for a
while and subsequently had dinner. After some time,
Jaime, Jr. and Ronald arrived at Joses house.
Concepcion Castillano testified that on July 8, 1996
at around 5:00 a.m., her son Jaime, Jr. arrived home and
told her that Diosdado threw stones at their farmhouse
and challenged everybody to a fight. She felt nervous and
reported the incident to the police and caused the same
to be entered in the police blotter. [35] Thereafter, she went
home and told her sons Jaime, Jr. and Ronald to
immediately fetch Gilda. She, likewise, instructed her
sons to first drop by the house of Jose so that the latter
could accompany them to the farmhouse.
Jaime, Sr. vehemently denied any participation in
the killing of Diosdado. He claimed that at the time of the
alleged incident, he was at their house in Sagrada,
bedridden due to his debilitating diabetes. He narrated to
the trial court his medical history and his confinement at
the Mandaluyong Medical Center sometime in 1994.
[36]
He presented documents and receipts showing that he
had been and is still under medication.[37] He declared
that upon learning from his son Ronald that the latter
killed Diosdado, he advised his sons to look for a lawyer
for legal representation. He told the trial court that at
around 11:30 p.m., he and his two sons had decided to
go to Andangnan in order to meet a cousin of his who
knew of a lawyer named Atty. Rotor. As they traversed
the road to Andangan, they were stopped by some
policemen at a checkpoint and were invited to the police
station where they were investigated and eventually
incarcerated.[38]
Gilda Abes, the last witness for the defense,
affirmed that she was the girlfriend of Jaime, Jr. She told
the trial court that on July 8, 1996 she was at the
farmhouse of the Castillanos. She corroborated the
testimony of Jose that Diosdado was combative and
drunk. According to Gilda, Jaime, Jr. left the farmhouse
before sundown to go to his parents place at Sagrada.
Jaime, Jr. never returned to the farmhouse that night.
Gilda learned of the incident the next morning when she
went home.[39]
The Verdict of the Trial Court
On December 22, 1998, the trial court rendered a
decision convicting Jaime, Jr. and Ronald of murder
qualified by evident premeditation and treachery. The
trial court exonerated Jaime, Sr. of the crime on
reasonable doubt. The trial court gave no credence to
Ronalds claim that he acted in self-defense. The decretal
portion of the decision reads:
WHEREFORE, in view of all the foregoing, judgment is
hereby rendered, finding the two (2) accused RONALD
CASTILLANO and JAIME CASTILLANO, JR. guilty beyond
reasonable doubt of the offense of MURDER and they are
hereby sentenced to suffer the penalty of imprisonment
of RECLUSION PERPETUA with all the accessory penalties
imposed thereby. Further, as civil liability, the said two (2)
accused are hereby ordered to pay the legal heirs of the
late Diosdado L. Volante, through his widow Luz R.
Volante, the total sum of ONE HUNDRED SEVENTY-SEVEN
THOUSAND FOUR HUNDRED TWENTY ONE PESOS
(P177,421.00) Philippine Currency as actual and moral
damages including death indemnity, with costs against
both accused.
The accused Jaime Castillano, Sr. is hereby acquitted on
the ground of reasonable doubt.
SO ORDERED.[40]
The accused, now appellants, interposed their
appeal from the decision of the trial court contending
that it committed reversible errors:
(a) in rejecting appellant Ronalds plea of self-
defense; and (b) in not acquitting appellant Jaime, Jr. of
the crime charged for failure of the prosecution to prove
his guilt beyond reasonable doubt.
Anent the first issue, appellant Ronald posits that he
adduced proof that he acted in self-defense when he
stabbed the victim.
The Court disagrees with appellant Ronald. The
Court has consistently held that like alibi, self-defense is
inherently weak because it is easy to fabricate. [41] In a
case where self-defense and defense of relatives is
invoked by the accused, the burden of evidence is shifted
to him to prove with clear and convincing evidence the
essential requisites of self-defense, namely (a) unlawful
aggression on the part of the victim; (b) reasonable
necessity of the means employed to repel or prevent it;
and (c) lack of sufficient provocation on the part of the
person defending himself. There can be no complete or
incomplete self-defense or defense of relatives unless the
accused proves unlawful aggression on the part of the
victim.[42] The accused must rely on the strength of his
evidence and not on the weakness of the evidence of the
prosecution for by pleading self-defense, the accused
thereby admits having killed the victim and he can no
longer be exonerated of the crime charged if he fails to
prove the confluence of the essential requisites for self-
defense and defense of a relative.[43]
Appellant Ronald failed to discharge his burden.
 First. After shooting and stabbing Diosdado,
appellant Ronald fled from the situs criminis. Flight from
the situs of the crime is a veritable badge of guilt and
negates his plea of self-defense.[44]
Second. Appellant Ronald threw away his paltik .38
gun and the bolo he used in hacking Diosdado as he fled
from the scene of the crime instead of surrendering the
same to the police authorities. Appellant Ronald
admitted that he had no license for the gun:
Q Where is that gun now that you use?
A I do not know, Your Honor, I think I was able
to throw it away.
Q Where?
A At Danawan, Your Honor.
Q Danawan, is that a lake?
A No, Your Honor, it is a ricefarm.
Q What kind of gun is this?
A Paltik .38, Your Honor.[45]
ATTY. BALLEBAR:
q By the way, where is that bolo that you used
in hacking and stabbing Diosdado
Volante?
a I do not know anymore because I was able to
throw it away also when I ran away.
q Where is that place where you throw it?
a It was by the NIA road.
q You mentioned also a while ago that this gun
that you said is a paltik and you throw it
away also, is it not?
a Yes, Maam.
q And that gun had been in your possession
the whole day that you are driving up to
the time you shot the victim, Diosdado
Volante?
a Yes, Maam.
q Do you have license to possess that firearm?
a None, Maam.[46]
The failure of appellant Ronald to surrender the
bolo and his gun to the police authorities belies his claim
of self-defense.
Third. Appellant Ronald failed to report the incident
to the police authorities even when they arrested him.
Curiously, he failed to inform the police officers who
arrested him that he acted in self-defense when he shot
and stabbed the victim The resounding silence of the
appellant is another indicium of the incredibility of his
defense.[47] Moreover, the records show that the
municipal trial court issued a subpoena on July 9, 1996
requiring appellant Ronald to submit his counter-affidavit
but he refused and/or failed to submit the same despite
service on him of the subpoena. It was only during the
trial that appellant Ronald, for the first time, invoked self-
defense and defense of a relative.
Fourth. The cadaver of the victim was found inside
his house when the police investigators arrived.[48] This
belies appellant Ronalds claim that he shot the victim in
the rice paddies, near his house and that he (appellant
Ronald) took the bolo of appellant Jaime, Jr. and used it
to stab the victim. Appellant Ronald failed to prove his
claim that when the police investigators arrived in the
victims house, they carried his (the victims) body from
the rice paddies to the house. The only evidence adduced
by appellant Ronald was his testimony which is hearsay,
and besides being hearsay, it is speculative and mere
conjecture.
Fifth. Appellant Ronald hacked the victim no less
than five times. Two of the stab wounds sustained by the
victim were at his back and posterior portion of his left
ankle. The number and nature of the wounds of the
victim negate the appellants claim that he shot the victim
in self-defense. On the contrary, they prove that
appellant Ronald was determined to kill the victim. [49]
Appellant Jaime, Jr. avers that the prosecution failed
to prove his guilt beyond reasonable doubt of the crime
charged. He asserts that the testimony of Luz Volante,
the widow of Diosdado, was inconsistent with her
testimony during the preliminary examination in the
municipal trial court and her sworn statement before the
police investigators as well as the testimonies of SPO1
Fornillos and SPO4 Jaime Favier, and the physical
evidence on record. The appellant catalogued said
inconsistencies, thus:
1. He was lying on the bench inside just upon
entering. (Tsn p. 9, 2/17/97).
-I was lying down with my husband inside our
house but we were still awake (9th Answer,
Prel. Exam. MTC, 7/9/96).
2. JCS fired towards our house hitting the wall
(Tsn p. 11, 2/17/96).
JCS fired twice (16th answer, Prel. Exam. MTC,
7/9/96).
JCS kept on firing the gun pointing towards the
body of my husband (9th Answer, Sworn
Statement, PNP, 7/9/96).
JCS shot my husband three (3) times (Tsn p. 16,
2/17/97)
3. My husband was shot and hit on the right
thigh (Tsn p. 14, 2/17/97). He was hit on
the left lap (23rd Answer, Prel. Exam. MTC,
7/9/96). He was hit on his side (Tsn p. 43,
2/17/97).
4. RC struck my husband with a 1-meter long
Pipe (Tsn p. 13, 2/17/97). RC & JCJ
smashed my husband with a hard object
(5th Answer, Sworn Statement, 7/9/96).
RC smashed my husband (22nd Answer,
Prel. Exam. MTC, 7/9/96).
 5. He was not able to fight back (Tsn p. 43,
2/17/97). He was standing and was trying
to parry the attack of the accused (26th
Answer, Prel. Exam. 7/9/96).
6. When I went back to the house, he was still
alive (Tsn p. 19, 2/17/97). - LV Yes, the
victim could have died instantly (Tsn p. 35,
2/3/97) With wounds sustained, he could
have died instantly (p. 8, Complainants
Memorandum).
7. It was bright inside our house with a
kerosene and a bottle lamp (Tsn pp. 33-34,
2/17/97). Only one kerosene lamp - bottle
of gin with wick and light (Tsn p. 10,
4/1/97 - SPO1 Pornillos
Surrounding house, dark, total darkness
(Tsn pp. 12-13, 4/1/97).
8. Scene Photography by Jaime Jornales
(Tsn, p. 21, 2/17/97).
-do- by Mr. Lozano (Tsn., p. 12, 3/7/97).
9. SPO1 Nilo Pornillos learned of the
incident at 8:00 oclock of July 8, 1996
(page 5 of Complainants Memorandum.
SPO4 Jaime Javier received report at 9:00
oclock P.M. of July 8, 1996 of Complainants
Memorandum.
SPO4 Jaime Javier received report at 8:00
P.M. (page 7 of Complainants
Memorandum).[50]
On the other hand, the Office of the Solicitor
General asserts that the credibility of the testimony of
Luz, the prosecutions principal witness, cannot be
impeached via her testimony during the preliminary
examination before the municipal trial court nor by her
sworn statement given to the police investigators for the
reason that the transcripts and sworn statement were
neither marked and offered in evidence by the appellants
nor admitted in evidence by the trial court. Moreover,
the appellants did not confront Luz with her testimony
during the preliminary examination and her sworn
statement to the police investigators. Luz was not,
therefore, accorded a chance to explain the purported
inconsistencies, as mandated by Section 13, Rule 132 of
the Revised Rules of Evidence which reads:
How witness is impeached by evidence of inconsistent
statement. - Before a witness can be impeached by
evidence that he has made at other times statements
inconsistent with his present testimony, the statements
must be related to him, with the circumstances of the
times and places and the persons present, and he must
be asked whether he made such statements, and if so,
allowed to explain them. If the statements be in writing
they must be shown to the witness before any question is
put to him concerning them.
The Court agrees with the Office of the Solicitor
General. Before the credibility of a witness and the
truthfulness of his testimony can be impeached by
evidence consisting of his prior statements which are
inconsistent with his present testimony, the cross-
examiner must lay the predicate or the foundation for
impeachment and thereby prevent an injustice to the
witness being cross-examined. The witness must be given
a chance to recollect and to explain the apparent
inconsistency between his two statements and state the
circumstances under which they were made. [51] This
Court held in People v. Escosura[52] that the statements of
a witness prior to her present testimony cannot serve as
basis for impeaching her credibility unless her attention
was directed to the inconsistencies or discrepancies and
she was given an opportunity to explain said
inconsistencies. In a case where the cross-examiner tries
to impeach the credibility and truthfulness of a witness
via her testimony during a preliminary examination, this
Court outlined the procedure in United States vs.
Baluyot,[53] thus:
...For instance, if the attorney for the accused had
information that a certain witness, say Pedro Gonzales,
had made and signed a sworn statement before the fiscal
materially different from that given in his testimony
before the court, it was incumbent upon the attorney
when cross-examining said witness to direct his attention
to the discrepancy and to ask him if he did not make such
and such statement before the fiscal or if he did not there
make a statement different from that delivered in court.
If the witness admits the making of such contradictory
statement, the accused has the benefit of the admission,
while the witness has the opportunity to explain the
discrepancy, if he can. On the other hand, if the witness
denies making any such contradictory statement, the
accused has the right to prove that the witness did make
such statement; and if the fiscal should refuse upon due
notice to produce the document, secondary evidence of
the contents thereof would be admissible. This process of
cross-examining a witness upon the point of prior
contradictory statements is called in the practice of the
American courts laying a predicate for the introduction of
contradictory statements. It is almost universally
accepted that unless a ground is thus laid upon cross-
examination, evidence of contradictory statements are
not admissible to impeach a witness; though
undoubtedly the matter is to a large extent in the
discretion of the court.
In this case, the appellants never confronted Luz
with her testimony during the preliminary examination
and her sworn statement. She was not afforded any
chance to explain any discrepancies between her present
testimony and her testimony during the preliminary
examination and her sworn statement. The appellants did
not even mark and offer in evidence the said transcript
and sworn statement for the specific purpose of
impeaching her credibility and her present testimony.
Unless so marked and offered in evidence and accepted
by the trial court, said transcript and sworn statement
cannot be considered by the court.[54]
On the purported inconsistencies or discrepancies
catalogued by the appellants relating to the testimony of
Luz during the preliminary examination and her sworn
statement, the Office of the Solicitor General posits that:
Sixth, Volante indeed testified that when she returned to simultaneous acts of stabbing the victim. As narrated by
their house from the ricefield, after the three accused Luz:
had left the premises, her husband was still alive (TSN,
February 17, 1997, p. 19) as he was still able to ask for
her assistance (Ibid, p. 20). But it is not inconsistent with ATTY. BALLEBAR:
the expert opinion of Dr. Consolacion that by the nature
of the wounds sustained by the victim, the latter could Q Now after Jaime Castillano Sr. fired at your
have died thereof instantaneously (TSN, February 3, house, what happened next if any?
1997, p. 35). It is clear that the said physician was merely A They entered our house.
stating a possibility and not what happened in the instant
case because in the first place, she was not present at the Q Now, when you say they to whom are you
scene right after the incident. referring to?
A Jaime Castillano Sr., Jaime Castillano, Jr., and
Seventh, Volante was insistent in her testimony that at Ronald Castillano.
the time of the commission of the subject crime, it was
bright inside their house because they had a kerosene Q Now, where did they enter?
lamp and a bottle lamp both lighted up, one placed on
A In the other door.
the wall and the other on the ceiling (Ibid, pp. 33, 52-
53). While it may appear contradictory to SPO1 Pornillos Q Now at the time they entered your house
testimony that there was only a kerosene lamp at the was the door of your house closed or
time, he could not have been expected to notice all the opened?
things found inside the house, including the bottle lamp,
because he might not have been familiar with its A It was closed.
interiors. Or, he could have focused his attention Q Now, after the accused entered your house
primarily on the body of the fallen victim and the objects what happened next, if any?
that may be used later as evidence against the
perpetrators of the crime. A Jaime Castillano Jr. stabbed my husband and
also Ronal Castillano stabbed my
Eight, it is admitted that the testimonies of Volante and husband.
SPO1 Pornillos as to who took pictures of the crime scene Q Now, was your husband hit by the stabbing
including the lifeless body of the victim are contradictory. of Ronald Castillano, Jr. (sic)?
But again, such contradiction, being only minor and
irrelevant, does not affect the credibility of their A Yes, sir.
testimonies.
Q Will you tell us on what part of his body was
he hit?
And ninth, the apparently inconsistent statements of the
prosecution witnesses (SPO1 Pornillos and SPO4 Javier) A My husband was still struck by Ronald
as to the exact time the subject incident was reported to Castillano hitting him on his right side of
the police authorities are similarly irrelevant to the his body including on his right thigh and
matters in issue. Of consequence here is the fact that on also on his back..
the night the crime was committed, it was reported to
ATTY. BALLEBAR:
the authorities who later effected the arrest of the
perpetrators thereof.[55] Q Now, you said Ronald Castillano struck your
husband, now with what instrument did
The Court fully agrees with the foregoing he use in strucking (sic) your husband?
ruminations of the Office of the Solicitor General. The
inconsistencies adverted to by the appellants pertained ATTY. BERNALES:
only to minor and collateral matters and not to the We object, misleading, your Honor.
elements of the crime charged; hence, they do not dilute
the probative weight of the testimony. It bears stressing COURT:
that even the most truthful witness can make mistakes Witness may answer.
but such innocent lapses do not necessarily affect his
credibility. The testimonies of witnesses must be WITNESS:
considered and calibrated in their entirety and not by
A A pipe.
their truncated portions or isolated passages. [56] And then
again, minor contradictions among several witnesses of a ATTY. BALLEBAR:
particular incident and aspect thereof which do not
relate to the gravamen of the crime charged are to be Q Now, will you tell us more or less how long
expected in view of their differences in impressions, was that pipe that was used by Ronald
memory, vantage points and other related factors.[57] Castillano?

Contrary to appellant Jaime, Jr.s claim, the A About one (1) meter, Maam.[58]
prosecution adduced proof that he and appellant Ronald Luz was merely five meters away from where
conspired to kill and did kill Diosdado by their Diosado was attacked and stabbed by the appellants.
Appellant Jaime, Jr. even tried to cut the ankle of the
victim:
ATTY. BALLEBAR:
Q Now during this incident, how far were you
from the accused and your husband?
A From where I am sitting up to that window
which is about five (5) meters.
Q Now after the accused strucked (sic) and
shot your husband, what else happened
if any?
A Jaime Castillano Jr. stabbed my husband on
his breast (Witness is pointing to her
breast).
ATTY. BERNALES:
We will move that the answer be striken off
from the records because it is not
responsive to the question. The question
is after your husband has been stabbed
strucked (sic) and shot.
COURT:
Q Your are being asked what happened after
the accused was already stabbed,
strucked (sic) and shot, what happened
next?
WITNESS:
Q Jaime Castillano Junior still stabbed my
husband and try to cut his ankle, Your
Honor.
COURT:
Strike our (sic) the previous answer of the
witness.
ATTY. BALLEBAR:
Q By the way, will you tell us how many times
did Ronald Castillano stab your husband?
A I cannot determine how many times he even
stabbed my husband on his left eye.
Q How about Jaime Castillano Jr., how many
times did he stab your husband?
A I cannot determine exactly how many times
but he repeatedly stabbed my husband.
[59]
The mere denial appellant Jaime, Jr. of the crime
charged is but a negative self-serving which cannot
prevail over the positive and straightforward testimony of
Luz and the physical evidence on record.[60]
The Crime Committed by Appellants
The trial court correctly convicted the appellants of
murder, qualified by treachery, under Article 248 of the
Revised Penal Code. The Court, however, does not agree
with the trial courts finding that evident premeditation
attended the commission of the crime.
Case law has it that the prosecution has the burden
to prove beyond reasonable doubt qualifying
circumstances in the commission of the crime. For
evident premeditation to qualify a crime, the prosecution
must prove the confluence of the essential requites
thereof: (a) the time when the offender has determined
to commit the crime; (b) an act manifestly indicating that
the offender has clung to his determination; (c) an
interval of time between the determination and the
execution of the crime enough to allow him to reflect
upon the consequences of his act. [61] There must be proof
beyond cavil when and how the offender planned to kill
the victim and that sufficient time had elapsed between
the time he had decided to kill the victim and the actual
killing of the victim, and that in the interim, the offender
performed overt acts positively and conclusively showing
his determination to commit the said crime. [62] In this
case, the only evidence adduced by the prosecution to
prove evident premeditation is the testimony of Levy
Avila that between 5:00 p.m. and 6:00 p.m. on July 8,
1996, he heard the appellants planning to go to the
house of Diosdado and that he heard them say: Ayaw
namin kasing inaasar, and that at 8:00 p.m., the
appellants arrived in the house of the victim and stabbed
him to death. There is no evidence of any overt acts of
the appellants when they decided to kill Diosdado and
how they would consummate the crime. There is no
evidence of any overt acts perpetrated by the appellants
between 5:00 and 8:00 p.m. that they clung to their
determination to kill Diosdado.
There is treachery in the commission of a crime
when (a) at the time of attack, the victim was not in a
position to defend himself; (b) the offender consciously
and deliberately adopted the particular means, methods
and forms of attack employed by him. [63] Even a frontal
attack may be treacherous when unexpected on an
unarmed victim who would not be in a position to repel
the attack or avoid it.[64] In this case, the victim was
unarmed and was supinely resting before sleeping after a
hard days work. Although Luz warned the victim that the
appellants were already approaching their house,
however, the victim remained unperturbed when the
appellants barged into the victims house. They stabbed
him repeatedly with diverse deadly weapons. The victim
had nary a chance to defend himself and avoid the fatal
thrusts of the appellants.
The crime was committed in the house of the
victim. There was no provocation on the part of the
victim. Dwelling thus aggravated the crime. However,
dwelling was not alleged in the information, as mandated
by Section 8, Rule 110 of the Revised Rules of Criminal
Procedure:
Sec. 8. Designation of the offense. - The complaint or
information shall state the designation of the offense
given by the statute, aver the acts or omissions
constituting the offense, and specify its qualifying and
aggravating circumstances. If there is no designation of
the offense, reference shall be made to the section or
subsection of the statute punishing it.
 The use by appellant Ronald of an unlicensed
firearm to shoot Diosdado on the thigh is not an
aggravating circumstance because (1) there is no
allegation in the information that said appellant had no
license to possess the firearm. That appellant lacked the
license to possess the firearm is an essential element of
the crime and must be alleged in the information.
[65]
Although the crime was committed before the new
rule took effect on December 1, 2002, the rule should,
however, be applied retroactively as it is favorable to the
appellants.[66]
The appellants are not entitled to the mitigating
circumstance of voluntary surrender. The evidence shows
that the appellants were arrested when the police
officers manning the checkpoint stopped the passenger
jeepney driven by appellant Ronald and arrested the
appellants. The fact that the appellants did not resist but
went peacefully with the peace officers does not mean
that they surrendered voluntarily.[67]
There being no mitigating and aggravating
circumstances in the commission of the crime, the
appellants should be meted the penalty of reclusion
perpetua conformably with Article 63 of the Revised
Penal Code.
The Civil Liabilities of the Appellants
Criminal Case No. P-2542 is AFFIRMED with
MODIFICATION. Appellants Ronald Castillano alias Nono
and Jaime Castillano, Jr. alias Junjun are found guilty
beyond reasonable doubt of murder, qualified by
treachery, punishable by reclusion perpetua to death,
under Article 248 of the Revised Penal Code. There being
no modifying circumstances in the commission of the
crime, the appellants are sentenced to suffer the penalty
of reclusion perpetua, conformably with Article 63 of the
Revised Penal Code. They are, likewise, ordered to pay
jointly and severally to the heirs of the victim, Diosdado
Volante, the amounts of P50,000 as civil indemnity;
P50,000 as moral damages; P18,300 as actual damages;
P25,000 as exemplary damages; and P5,000 as temperate
damages. Costs against the appellants.
SO ORDERED.
Bellosillo, (Chairman), Mendoza,
Quisumbing, and Austria-Martinez, JJ., concur.

The trial court awarded the total amount of

P177,421 as civil indemnity, actual and moral damages in
favor of the heirs of the victim Diosdado. The Court has
to modify the awards.
Appellants Ronald and Jaime, Jr. are obliged to pay
jointly and severally the amount of P50,000 as civil
indemnity; P50,000 as moral damages; P25,000 as
exemplary damages in view of the aggravating
circumstance of dwelling;[68] and the amount of P18,300
for funeral and religious services. The heirs of the victim
failed to adduce in evidence any receipts or documentary
evidence to prove their claim for food and other
expenses during the wake. However, they are entitled to
temperate damages in the amount of P5,000,
conformably with the ruling of the Court in People v.
dela Tongga.[69] His wife Luzs testimony that the victim
had an annual income of more than P65,000 is not
sufficient as basis for an award for unearned income for
being self-serving. There was no proof of the average
expense of the victim and his family and his net income.
In People v. Ereo,[70] this Court held that:
It bears stress that compensation for lost income is in the
nature of damages and as such requires due proof of the
damage suffered; there must be unbiased proof of the
deceaseds average income. In the instant case, the
victims mother, Lita Honrubia, gave only a self-serving
hence unreliable statement of her deceased daughters
income. Moreover, the award for lost income refers to
the net income of the deceased, that is, her total income
less her average expenses. No proof of the victims
average expenses was presented. Hence, there can be no
reliable estimate of the deceaseds lost income.
G.R. No. 90198 November 7, 1995
IN LIGHT OF ALL THE FOREGOING, the Decision of
the Regional Trial Court of Camarines Sur, Branch 31 in
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANTONIO PLASENCIA y DESAMPARADO alias "Tonying,"
ROBERTO DESCARTIN y PASICARAN alias"Ruby" and
JOELITO (JULITO), DESCARTIN y PASICARAN, accused-
appellants.
VITUG, J.:
Antonio Plasencia, Roberto Descartin and Joelito (Julito)
Descartin were accused of robbery with homicide in an
information, dated 20 December 1984, that read:
That on or about the 29th day of November, 1984 at
around 3:00 o'clock in the afternoon, more or less, in
sitio San Juan, Barangay Patao, Municipality of Bantayan,
Province of Cebu, Philippines, and within the jurisdiction
of this Honorable Court, the said accused conspiring and
confederating together and mutually helping one
another, did then and there wilfully, unlawfully and
feloniously, and with treachery, evident premeditation
and taking advantage of their superior number and
strength and with intent to kill, treacherously attack,
assault and use personal violence upon Herminio
Mansueto, thereby inflicting upon him the following
physical injuries:
1. Stab wounds which was approximately two inches in
length, parallel to the ribs and is located 1 1/2 inches
below the right nipple on the right anterior axillary line
and on the fifth intercostal space. On probing the wound
was penetrating immediately up to the left parasternal
border approximately hitting the heart;
2. Hacking wound 9 inches in length extending from the
coracoid process of the left clavicle passing between the
left anterior and the left mid axillary line up to the left
4th intercostal space including all muscle underlying the
skin exposing the ribs.
Cause of death: Internal hemorrhage due to stab wound.
After which the body was placed inside a plastic bag and
brought to an open sea by the pump boat owned by
Roberto Descartin y Pasicaran and operated by Joelito
Descartin y Pasicaran and dumped to the water by herein
accused, and as a result of which said Herminio
Mansueto died, herein accused, in pursuance of their
conspiracy, wilfully, unlawfully and feloniously and with
intent to gain, took and carried away the personal
property belonging to Herminio Mansueto, namely: one
(1) Seiko 5 "Stop Watch" valued at P3,000.00; one (1)
Bicycle (standard size) valued at P1,000.00; and cash in
the amount of P10,000.00, all in the total amount of
FOUR-TEEN THOUSAND PESOS (P14,000.00), Philippine
Currency, to the damage and prejudice of said oner (sic)
in the said total sum.
All contrary to law, and with the qualifying circumstance
of alevosia, and the generic aggravating circumstance of
known premeditation.
CONTRARY TO LAW. 1
When arraigned, all the accused entered a plea of "not
guilty" to the charge; whereupon, trial commenced.
The prosecution sought to establish, as follows:
At around ten o'clock in the morning of 29 November
1984, Herminio Mansueto, wearing a blue and white
striped t-shirt, maong pants, Seiko 5 stop watch and
a pandan hat, left on his bicycle for Barangay Patao,
Bantayan, Cebu. He had with him P10,000.00 cash which
he would use to purchase hogs from a certain "Ruby."
In Patao, Francisca Espina, also known in the locality as
Pansing and whose house was just across the street from
the respective residences of the three accused, saw at
the roadside Herminio Mansueto and Roberto
Descartin alias "Ruby" engaged in conversation. Pansing
approached them and asked Mansueto if he would be
interested in buying two of her pigs for P1,400.00.
Mansueto said "yes" and promised that he would be right
back.
Mansueto and Ruby meantime proceeded to the latter's
piggery. Joelito Descartin and his brother-in-law Rene
were also seen going to the place. After some time,
Pansing noticed Joelito take Mansueto's bicycle. Believing
that Mansueto was already preparing to leave and in her
desire to catch up with him, Pansing promptly walked
towards the piggery which was around 100 meters away
from her house. She could see Mansueto leaning on the
pigsty with Ruby on his right side and Antonio
Plasencia alias "Tonying" on his left; behind was
Joelito.2 Midway, she was halted on her tracks; she
suddenly saw Antonio stab Mansueto. The latter
staggered towards Ruby who himself then delivered
another stab blow. Mansueto fell on his back. Joelito
started hitting Mansueto on the forehead while Rene
held Mansueto's legs.3 Except for a coconut tree and
some ipil-ipil trees around the area, nothing obstructed
Pansing's line of vision. Pansing rushed back home. The
image of Antonio waving the weapon and the thought
that she might herself be killed kept her from revealing to
anyone what she saw.4
The following day, in Kodia, Madridejos, Cebu, where
Mansueto resided, his daughter Rosalinda reported to
Francisca Tayo, the barangay captain, that her father had
not returned home. Tayo proceeded to Putian, which was
in Mansueto's itinerary, and then to Ruby's piggery in
Patao, where a youngster, who turned out to be Ruby's
son, innocently informed her that Mansueto's bicycle was
taken by Joelito.5
The day after, Francisca Tayo, accompanied by police
officers of Madridejos, Cebu, and some relatives of
Mansueto, went back to Ruby's place. On a railing of the
pigpen, she saw blood stains. When she asked Ruby's
father about it, he said that the stains had come from
chicken blood. Going around the piggery, she also saw
blood stains on a bamboo pole, which Ruby's father once
again so identified as chicken blood. At the back of the
piggery, Francisca noticed a digging which looked like an
empty grave. The digging was measured and photos were
taken. The police found a hat at the back of a hut beside
the piggery, which was later recognized to be that which
belonged to Mansueto.6
In the morning of 30 November 1984, Patrolman Elpidio
Desquitado of the Bantayan police went back to the
piggery. This time, the police learned from Pansing
herself that Joelito took Mansueto's bicycle. 7 Joelito was
invited to the police headquarters to shed light on the
case. Later, Joelito, waiving his right to counsel, executed
a "confession."8
Joelito narrated that, upon Ruby's instruction, he brought
the bicycle to the piggery. Unexpectedly, he said, Tonying
Plasencia stabbed Mansueto. Stunned, Joelito tried to
run away but Tonying stopped him. Tonying then dragged
the victim to a nearby house. Threatened by Tonying,
Joelito agreed to later return to where the victim's body
was dragged. At around eleven o'clock that evening,
tonying and Joelito placed the body in a sack. Tonying
asked Ruby to allow the use of the latter's pumpboat to
ferry the body. Tonying paddled the pumpboat to the
island of Po-Po'o where he picked up some pieces of
stones. Then, again paddling the pumpboat farther away
from the island, he ordered Joelito to start the engine of
the boat. They headed for the islet of Gilotongin
(Hilotongan). On the way, Tonying filled the sack with
stones and, using a rope, tied to it the body of the victim.
Tonying then unloaded their cargo into the sea.
Guided by Joelito, members of the Bantayan police force
headed for the islet of Hilotongan on two pumpboats9 in
the area pinpointed to be the place where the body was
dumped. On the second day of the search, the group was
informed that the body had already surfaced near the
vicinity of the search and delivered to the municipal
building. 10
The municipal health officer of Bantayan, Dr. Oscar
Quirante, examined the body and concluded that the
victim died of internal hemorrhage due to stab
wounds. 11 The bloated body was in a late stage of
decomposition and its skin had sloughed off. 12 He found
the victim's face to be "beyond recognition." There were
"some rope signs in the body particularly in the waistline
and in the knees." 13
The main defense interposed is one of alibi.
Antonio stated that on the whole day of 29 November
1984, he was out at sea fishing with his son. Joelito, on
his part, asserted that he was in Barrio Baod, about an
hour's walk from his residence, at the house of his
fiancee. He returned to his house, he said, only the day
after. Roberto ("Ruby"), Joelito's uncle, testified that on
that fateful day, he was in Samoco Purok 2, Iligan City,
and then left for Cebu on 06 December 1984 only after
receiving a telegraph that Joelito was implicated in the
crime.
The Regional Trial Court 14 did not give credence to the
defense of alibi. It convicted the three accused of murder
(punishable under Article 248 of the Revised Penal Code),
instead of robbery with homicide, explaining that the
term "homicide" was used in the information in its
generic sense. 15 Finding conspiracy, the trial court ruled
that the killing was qualified by both treachery and abuse
of superior strength with the latter, however, being
absorbed by the former. No other aggravating or
mitigating circumstances being attendant in the
commission of the crime, the trial court said, the penalty
that could be imposed upon each of the accused
was reclusion perpetua with a joint and several civil
liability for indemnification to the heirs of Herminio
Mansueto in the amount of P30,000.00.
The instant appeal was interposed by the three convicted
appellants.
Appellant Antonio Plasencia attacks the credibility of the
prosecution's lone eyewitness, Francisca Espina, alleging
that she is a pejured witness who has an axe to grind
against him because his dog had once bitten Francisca's
child. 16 He bewails the fact that it has taken Francisca
until 29 December 1984 to reveal what she supposedly
has seen to the police authorities. Contending that
treachery has not been duly proven as "no wound was
inflicted at the back and as a matter of fact only one
wound was fatal," 17 appellant argues that even if
conspiracy were to be considered to have attended the
commission of the crime, he could be held liable with the
others, if at all, only for homicide.
Appellant Roberto Descartin, likewise challenging
Francisca Espina's credibility because of her alleged
inconsistencies, faults the trial court for allowing the
witness to glance at the notes written on her palm while
testifying. He also argues that his alibi, being
corroborated, should have been given weight.
Appellant Joelito Descartin, in assailing the credibility of
Francisca, has noted her "jittery actuation" while giving
her testimony. He also questions the findings of
the ponente for not being the presiding judge during the
examination of Francisca on the witness stand.
The focus of this appeal is clearly one of credibility. The
initial assessment on the testimony of a witness is done
by the trial court, and its findings still deserve due regard
notwithstanding that the presiding judge who pens the
decision is not the one who personally may have heard
the testimony. 18 The reliance on the transcript of
stenographic notes should not, for that reason alone,
render the judgment subject to challenge. 19 The
continuity of the court and the efficacy of its decision are
not affected by the cessation from the service of the
judge presiding it 20or by the fact that its writer merely
took over from a colleague who presided at the trial. 21
It is asserted that the testimony of Francisca Espina
should not be given worth since, while testifying, she
would at times be seen reading some notes written on
her left palm. Thus —
Q. May I see your left hand, may I see what is written
there?
A. Witness showing to the court her left palm and the
following words have been written in her palm in ball pen
handwritten words and number of the pumpboat No. 56
and there is another word "petsa" and there are words
which cannot be deciphered and all found in the palm of
the left hand.
ATTY. MONTECLAR:
That is all.
ATTY. GONZALES: RE-CROSS
Q Mrs. witness, you cannot deny of what these physical
evidences or writings on the palm of your left hand. I
want you to be honest, the law will not allow you to lie,
you are subject to punishment and penalty. My question
is, who wrote this on the palm of your left hand?
A I was the one who wrote this.
Q Why did you write that down?
A I was the one who wrote this.
Q Why, what was your purpose of writing that in your
palm?
A I wrote this in my palm because I wanted to be sure of
what time the incident happened, was the same as that I
wrote in my palm.
Q And who furnished you the data in which you wrote in
the palm of your hand?
A I was the one who made that.
ATTY. GONZALES:
Q You don't understand my question. You wrote that
writing but where did you get that data?
A. This is just of what I know.
Q Since you claim to have all this knowledge of your
mind, why did you find it necessary to write that in the
palm of your hand and I notice during the trial that you
used to look in your palm, why, is that necessary in your
believe to testify here to what you knew about the
incident.
A Because of the fact that I have a headache.
Q When did this headache occur?
A After I left my house because my sick child.
Q Now, knowing that you have an headache, did you not
bring this to the attention of the Fiscal?
A No, I did not tell the Fiscal.
Q Do you know of your own that doing this is unfair and
is not allowable while testifying in open court, do you
know that is illegal act?
A No, I did not, know.
Q And you did all of this claiming that you do not know
about the incident for the purpose of giving here
testimony against the accused?
A Yes, sir. 22
The use of memory aids during an examination of a
witness is not altogether proscribed. Section 16, Rule
132, of the Rules of Court states:
Sec. 16. When witness may refer to
memorandum. — A witness may be
allowed to refresh his memory
respecting a fact, by anything written
or recorded by himself or under his
direction at the time when the fact
occurred, or immediately thereafter, or
at any other time when the fact was
fresh in his memory and he knew that
the same was correctly written or
recorded; but in such case the writing
or record must be produced and may
be inspected by the adverse party, who
may, if he chooses, cross-examine the
witness upon it and may read it in
evidence. So, also, a witness may testify
from such a writing or record, though
he retain no recollection of the
particular facts, if he is able to swear
that the writing or record correctly
stated the transaction when made; but
such evidence must be received with
caution. (Emphasis supplied.)
Allowing a witness to refer to her notes rests on
the sound discretion of the trial court. 23 In this
case, the exercise of that discretion has not been
abused; the witness herself has explained that
she merely wanted to be accurate on dates and
like details.
Appellants see inadvertency on Francisca's appearing to
be "jittery" on the witness stand. Nervousness and
anxiety of a witness is a natural reaction particularly in
the case of those who are called to testify for the first
time. The real concern, in fact, should be when they
show no such emotions.
Francisca did fail in immediately reporting the killing to
the police authorities. Delay or vacillation, however, in
making a criminal accusation does not necessarily
adulterate the credibility of the witness. 24 Francisca, in
her case, has expressed fears for her life considering that
the assailants, being her neighbors, could easily exact
retribution on her. 25 Also, the hesitancy in reporting the
occurrence of a crime in rural areas is not unknown. 26
Francisca's inability to respond to the summons for
another appearance in court for further questioning was
satisfactorily explained by the prosecution. Francisca at
the time just had a miscarriage and was found to be too
weak to travel. The recall of the witness was, after all, at
the sound discretion of the trial court. 27
The claim of appellant Roberto Descartin that Francisca
and her husband, a tuba-gatherer, owed him P300.00,
and the assertion made by appellant Antonio Plasencia
on the dog-biting story involving Francisca's son truly
were too petty to consider. It would be absurd to think
that Francisca, for such trivial reasons was actually
impelled to falsely implicate appellants for so grave an
offense as murder.
The trial court was correct when it concluded that the
crime committed was murder, a crime technically lower
than robbery with homicide, 38 not, however, because of
the attendance of treachery but of abuse of superior
strength. Treachery, in our view, was not satisfactorily
proven by the prosecution. Francisca Espina simply
testified that appellant Plasencia stabbed Mansueto
while the latter and the appellants were in a huddle.
There was nothing adduced on whether or not the victim
gave provocation, an indispensable issue in the proper
appreciation of treachery. 39 The presence, nonetheless,
of the aggravating circumstance of abuse of superior
strength qualified the killing to murder. 40 The three
appellants utilized superiority in numbers and employed
deadly weapons in assaulting the unarmed Mansueto.

Appellants questioned Francisca's ability to recognize
them from a distance. Francisca knew appellants well;
they all were her neighbors while Antonio Plasencia
himself was her cousin. 28 The crime occurred at around
three o'clock in the afternoon only about fifty (50) meters
away from her. With an unobstructed view, Francisca's
positive identification of the culprits should be a foregone
matter. 29
There being no other aggravating or mitigating
circumstances to consider, the trial court aptly imposed
the penalty of reclusion perpetua, the medium
period 41 of the penalty of reclusion temporal maximum
to death prescribed by Article 248 of the Revised Penal
Code. In conformity with prevailing jurisprudential law,
the heirs of the victim should be indemnified in the
amount of P50,000.00. 42

The alleged inconsistencies in Francisca's testimony and
in her sworn statement of 18 December 1984, cover
matters of little significance. Minor inconsistencies in the
testimonies of witnesses do not detract from their
credibility; 30 on the contrary, they serve to strengthen
their credibility and are taken as badges of truth rather
than as indicia of falsehood 31 even as they also erase
suspicion of rehearsed testimony.32
WHEREFORE, the decision of the trial court convicting
appellants Antonio Plasencia, Roberto Descartin and
Joelito (Julito) Descartin of the crime of murder and
imposing on each of them the penalty of reclusion
perpetua is hereby AFFIRMED with the modification that
the indemnity to the heirs of the victim, Herminio
Mansueto, is raised to P50,000.00. Costs against
appellants.

All considered, the case against the appellants has been SO ORDERED.
proven beyond reasonable doubt even with the retracted
extra-judicial admission of Joelito Descartin. 33 The Feliciano, Romero, Melo and Panganiban, JJ., concur.
testimony of a single witness, if found to be credible, is
adequate for conviction, 34 The defense of alibi hardly can
overcome the positive identification of an unprejudiced
eyewitness. 35

Like the trial court, we are not persuaded that robbery

has been proven to be the principal motive for the crime
that can warrant the conviction of appellants for the
complex crime of robbery with homicide. 36 Appellants
could only thus be held responsible for the killing of
Mansueto. Conspiracy among the appellants has been
established beyond doubt by the sum of their deeds
pointing to a joint purpose and design. 37

Three aggravating circumstances were alleged in the

information, i.e., treachery, evident premeditation and
abuse of superior strength. The trial court disregarded
the circumstance of evident premeditation and
concluded that the attack upon Mansueto was
committed with treachery and abuse of superior
strength. On its finding that the assault was unexpectedly [G.R. No. 96202. April 13, 1999]
perpetrated upon the unarmed victim to ensure its
execution without risk to themselves from the defense
that the victim might make, the trial court appreciated
treachery, which it deemed as having so absorbed abuse
of superior strength.
ROSELLA D. CANQUE, petitioner, vs. THE COURT OF
APPEALS and SOCOR CONSTRUCTION
CORPORATION, respondents.
DECISION
MENDOZA, J.:
This petition for review on certiorari seeks a reversal
of the decision[1] of the Court of Appeals affirming the
judgment[2] of the Regional Trial Court of Cebu City
ordering petitioner -
. . . to pay [private respondent] the principal sum of Two
Hundred Ninety Nine Thousand Seven Hundred
Seventeen Pesos and Seventy Five Centavos
(P299,717.75) plus interest thereon at 12% per annum
from September 22, 1986, the date of the filing of the
complaint until fully paid; to pay [private respondent] the
further sum of Ten Thousand Pesos (P10,000.00) for
reasonable attorneys fees; to pay the sum of Five
Hundred Fifty Two Pesos and Eighty Six Centavos
(P552.86) for filing fees and to pay the costs of suit. Since
[private respondent] withdrew its prayer for an alias writ
of preliminary attachment vis-a-vis the [petitioners]
counterbound, the incident on the alias writ of
preliminary attachment has become moot and academic.
The facts are as follows:
Petitioner Rosella D. Canque is a contractor doing
business under the name and style RDC Construction. At
the time material to this case, she had contracts with the
government for (a) the restoration of Cebu-Toledo wharf
road; (b) the asphalting of Lutopan access road; and (c)
the asphalting of Babag road in Lapulapu City. [3] In
connection with these projects, petitioner entered into
two contracts with private respondent Socor
Construction Corporation. The first contract (Exh. A),
[4]
dated April 26, 1985, provided:
The Sub-Contractor (SOCOR Corporation) and the
Contractor (RDC Construction) for the consideration
hereinafter named, hereby agree as follows:
1. SCOPE OF WORK:
a. The Sub-Contractor agrees to perform
and execute the Supply, Lay and
Compact Item 310 and Item 302;
b. That Contractor shall provide the labor
and materials needed to complete the
project;
c. That the Contractor agrees to pay the
Sub-Contractor the price of One
Thousand Pesos only (P1,000.00) per
Metric Ton of Item 310 and Eight
Thousand Only (P8,000.00) per Metric
Ton of Item 302.
d. That the Contractor shall pay the Sub-
Contractor the volume of the supplied
Item based on the actual weight in
Metric Tons delivered, laid and
compacted and accepted by the
MPWH;
e. The construction will commence upon
the acceptance of the offer.
The second contract (Exh. B),[5] dated July 23, 1985,
stated:
The Supplier (SOCOR Construction) and the Contractor
(RDC Construction) for the consideration hereinafter
named, hereby agree as follows:
1. SCOPE OF WORK:
a. The Supplier agrees to perform and execute
the delivery of Item 310 and Item 302 to
the jobsite for the Asphalting of DAS Access
Road and the Front Gate of ACMDC, Toledo
City;
b. That the Contractor should inform or give
notice to the Supplier two (2) days before
the delivery of such items;
c. That the Contractor shall pay the Supplier
the volume of the supplied items on the
actual weight in metric tons delivered and
accepted by the MPWH fifteen (15) days
after the submission of the bill;
d. The delivery will commence upon the
acceptance of the offer.
On May 28, 1986, private respondent sent
petitioner a bill (Exh. C), containing a revised
computation,[6] for P299,717.75, plus interest at the rate
of 3% a month, representing the balance of petitioners
total account of P2,098,400.25 for materials delivered
and services rendered by private respondent under the
two contracts. However, petitioner refused to pay the
amount, claiming that private respondent failed to
submit the delivery receipts showing the actual weight in
metric tons of the items delivered and the acceptance
thereof by the government.[7]
Hence, on September 22, 1986, private respondent
brought suit in the Regional Trial Court of Cebu to recover
from petitioner the sum of P299,717.75, plus interest at
the rate of 3% a month.
In her answer, petitioner admitted the existence of
the contracts with private respondent as well as receipt
of the billing (Exh. C), dated May 28, 1986. However, she
disputed the correctness of the bill
. . . considering that the deliveries of [private respondent]
were not signed and acknowledged by the checkers of
[petitioner], the bituminous tack coat it delivered to
[petitioner] consisted of 60% water, and [petitioner] has
already paid [private respondent] about P1,400,000.00
but [private respondent] has not issued any receipt to
[petitioner] for said payments and there is no agreement
that [private respondent] will charge 3% per month
interest.[8]
Petitioner subsequently amended her answer
denying she had entered into sub-contracts with private
respondent.[9]
 During the trial, private respondent, as plaintiff,
presented its vice-president, Sofia O. Sanchez, and
Dolores Aday, its bookkeeper.
Petitioners evidence consisted of her lone
testimony.[10]
On June 22, 1988, the trial court rendered its
decision ordering petitioner to pay private respondent
the sum of P299,717.75 plus interest at 12% per annum,
and costs. It held:
. . . . [B]y analyzing the plaintiffs Book of Collectible
Accounts particularly page 17 thereof (Exh. K) this Court
is convinced that the entries (both payments and billings)
recorded thereat are credible. Undeniably, the book
contains a detailed account of SOCORs commercial
transactions with RDC which were entered therein in the
course of business. We cannot therefore disregard the
entries recorded under Exhibit K because the fact of their
having been made in the course of business carries with
it some degree of trustworthiness. Besides, no proof was
ever offered to demonstrate the irregularity of the said
entries thus, there is then no cogent reason for us to
doubt their authenticity.[11]
The trial court further ruled that in spite of the fact
that the contracts did not have any stipulation on
interest, interest may be awarded in the form of damages
under Article 2209 of the Civil Code.[12]
On appeal, the Court of Appeals affirmed. It upheld
the trial courts reliance on private respondents Book of
Collectible Accounts (Exh. K) on the basis of Rule 130,
37[13] of the Rules of Court.
Hence, this appeal. Petitioner contends that
I. THE RESPONDENT COURT ERRED IN
ADMITTING IN EVIDENCE AS ENTRIES IN
THE COURSE OF BUSINESS THE ENTRIES IN
PRIVATE RESPONDENTS BOOK OF
COLLECTIBLE ACCOUNTS CONSIDERING
THAT THE PERSON WHO MADE SAID
ENTRIES ACTUALLY TESTIFIED IN THIS CASE
BUT UNFORTUNATELY HAD NO PERSONAL
KNOWLEDGE OF SAID ENTRIES.
II. THE DECISION OF THE RESPONDENT COURT
SHOULD BE REVERSED AS IT HAS ONLY
INADMISSIBLE EVIDENCE TO SUPPORT IT.
First. Petitioner contends that the presentation of
the delivery receipts duly accepted by the then Ministry
of Public Works and Highways (MPWH) is required under
the contracts (Exhs. A and B) and is a condition precedent
for her payment of the amount claimed by private
respondent. Petitioner argues that the entries in private
respondents Book of Collectible Accounts (Exh. K) cannot
take the place of the delivery receipts and that such
entries are mere hearsay and, thus, inadmissible in
evidence.[14]
We agree with the appellate court that the
stipulation in the two contracts requiring the submission
of delivery receipts does not preclude proof of delivery of
materials by private respondent in some other way. The
question is whether the entries in the Book of Collectible
Accounts (Exh. K) constitute competent evidence to show
such delivery. Private respondent cites Rule 130, 37 of
the Rules of Court and argues that the entries in question
constitute entries in the course of business sufficient to
prove deliveries made for the government projects.This
provision reads:
Entries in the course of business. Entries made at, or near
the time of the transactions to which they refer, by a
person deceased, outside of the Philippines or unable to
testify, who was in a position to know the facts therein
stated, may be received as prima facie evidence, if such
person made the entries in his professional capacity or in
the performance of duty and in the ordinary or regular
course of business or duty.[15]
The admission in evidence of entries in corporate
books requires the satisfaction of the following
conditions:
1. The person who made the entry must be dead,
outside the country or unable to testify;
2. The entries were made at or near the time of the
transactions to which they refer;
3. The entrant was in a position to know the facts
stated in the entries;
4. The entries were made in his professional
capacity or in the performance of a duty, whether legal,
contractual, moral or religious; and
5. The entries were made in the ordinary or regular
course of business or duty.[16]
As petitioner points out, the business entries in
question (Exh. K) do not meet the first and third
requisites. Dolores Aday, who made the entries, was
presented by private respondent to testify on the account
of RDC Construction. It was in the course of her
testimony that the entries were presented and marked in
evidence. There was, therefore, neither justification nor
necessity for the presentation of the entries as the
person who made them was available to testify in court.
Necessity is given as a ground for admitting entries, in
that they are the best available evidence. Said a learned
judge: What a man has actually done and committed to
writing when under obligation to do the act, it being in
the course of the business he has undertaken, and he
being dead, there seems to be no danger in submitting to
the consideration of the court. The person who may be
called to court to testify on these entries being dead,
there arises the necessity of their admission without the
one who made them being called to court be sworn and
subjected to cross-examination. And this is permissible in
order to prevent a failure of justice.[17]
Moreover, Aday admitted that she had no personal
knowledge of the facts constituting the entry. She said
she made the entries based on the bills given to her. But
she has no knowledge of the truth or falsity of the facts
stated in the bills. The deliveries of the materials stated in
the bills were supervised by an engineer for (such)
functions.[18] The person, therefore, who has personal
knowledge of the facts stated in the entries, i.e., that
such deliveries were made in the amounts and on the
dates stated, was the companys project engineer.The
entries made by Aday show only that the billings had
been submitted to her by the engineer and that she
faithfully recorded the amounts stated therein in the
books of account.Whether or not the bills given to Aday
correctly reflected the deliveries made in the amounts
and on the dates indicated was a fact that could be
established by the project engineer alone who, however,
was not presented during trial. The rule is stated by
former Chief Justice Moran, thus:
[W]hen the witness had no personal knowledge of the
facts entered by him, and the person who gave him the
information is individually known and may testify as to
the facts stated in the entry which is not part of a system
of entries where scores of employees have intervened,
such entry is not admissible without the testimony of the
informer.[19]
Second. It is nonetheless argued by private
respondent that although the entries cannot be
considered an exception to the hearsay rule, they may be
admitted under Rule 132, 10 [20] of the Rules of Court
which provides:
SEC. 10. When witness may refer to memorandum. A
witness may be allowed to refresh his memory respecting
a fact, by anything written by himself or under his
direction at the time when the fact occurred, or
immediately thereafter, or at any other time when the
fact was fresh in his memory and he knew that the same
was correctly stated in the writing; but in such case the
writing must be produced and may be inspected by the
adverse party, who may, if he chooses, cross-examine the
witness upon it, and may read it in evidence. So, also, a
witness may testify from such a writing, though he retain
no recollection of the particular facts, if he is able to
swear that the writing correctly stated the transaction
when made; but such evidence must be received with
caution.
On the other hand, petitioner contends that
evidence which is inadmissible for the purpose for which
it was offered cannot be admitted for another
purpose. She cites the following from Chief Justice
Morans commentaries:
The purpose for which the evidence is offered must be
specified. Where the offer is general, and the evidence is
admissible for one purpose and inadmissible for another,
the evidence should be rejected. Likewise, where the
offer is made for two or more purposes and the evidence
is incompetent for one of them, the evidence should be
excluded. The reason for the rule is that it is the duty of a
party to select the competent from the incompetent in
offering testimony, and he cannot impose this duty upon
the trial court. Where the evidence is inadmissible for the
purpose stated in the offer, it must be rejected, though
the same may be admissible for another purpose. The
rule is stated thus: If a party x x x opens the particular
view with which he offers any part of his evidence, or
states the object to be attained by it, he precludes
himself from insisting on its operation in any other
direction, or for any other object; and the reason is, that
the opposite party is prevented from objecting to its
competency in any view different from the one proposed.
[21]
It should be noted, however, that Exh. K is not really
being presented for another purpose. Private
respondents counsel offered it for the purpose of
showing the amount of petitioners indebtedness. He
said:
Exhibit K, your Honor - faithful reproduction of page
(17) of the book on Collectible Accounts of
the plaintiff, reflecting the principal
indebtedness of defendant in the amount of
Two hundred ninety-nine thousand seven
hundred seventeen pesos and seventy-five
centavos (P299,717.75) and reflecting as well
the accumulated interest of three percent
(3%) monthly compounded such that as of
December 11, 1987, the amount collectible
from the defendant by the plaintiff is Six
hundred sixteen thousand four hundred
thirty-five pesos and seventy-two centavos
(P616,435.72);[22]
This is also the purpose for which its admission is
sought as a memorandum to refresh the memory of
Dolores Aday as a witness. In other words, it is the nature
of the evidence that is changed, not the purpose for
which it is offered.
Be that as it may, considered as a memorandum,
Exh. K does not itself constitute evidence. As explained
in Borromeo v. Court of Appeals:[23]
Under the above provision (Rule 132, 10), the
memorandum used to refresh the memory of the witness
does not constitute evidence, and may not be admitted
as such, for the simple reason that the witness has just
the same to testify on the basis of refreshed memory. In
other words, where the witness has testified
independently of or after his testimony has been
refreshed by a memorandum of the events in dispute,
such memorandum is not admissible as corroborative
evidence. It is self-evident that a witness may not be
corroborated by any written statement prepared wholly
by him. He cannot be more credible just because he
supports his open-court declaration with written
statements of the same facts even if he did prepare them
during the occasion in dispute, unless the proper
predicate of his failing memory is priorly laid down. What
is more, even where this requirement has been satisfied,
the express injunction of the rule itself is that such
evidence must be received with caution, if only because
it is not very difficult to conceive and fabricate evidence
of this nature. This is doubly true when the witness
stands to gain materially or otherwise from the admission
of such evidence . . . .[24]
As the entries in question (Exh. K) were not made
based on personal knowledge, they could only
corroborate Dolores Adays testimony that she made the
entries as she received the bills.
Third. Does this, therefore, mean there is no
competent evidence of private respondents claim as
petitioner argues?[25] The answer is in the negative. Aside
from Exh. K, private respondent presented the following
documents:
1) Exhibit A - Contract Agreement dated 26 April 1985
which contract covers both the Toledo wharf project and
the Babag Road project in Lapulapu City.
2) Exhibit B - Contract Agreement dated 23 July 1985
which covers the DAS Asphalting Project.
3) Exhibit C - Revised Computation of Billings submitted
on May 28, 1986.
4) Exhibit D - an affidavit executed by [petitioner] to the
effect that she has no more pending or unsettled
obligations as far as Toledo Wharf Road is concerned.
5) Exhibit D-1 - Statement of Work Accomplished on the
Road Restoration of Cebu-Toledo wharf project.
6) Exhibit E - another affidavit executed by [petitioner]
attesting that she has completely paid her laborers at the
project located at Babag, Lapulapu City
7) Exhibits F, G, G-1, G-2, G-3 - Premiums paid by [private
respondent] together with the receipts for filing fees.
8) Exhibits H, I, J - certifications issued by OIC, MPWH,
Regional Office; Lapulapu City, City Engineer; Toledo City
Treasurers Office respectively, proving that RDC
construction has no more collectibles with all the said
government offices in connection with its projects.
10) Exhibit L - Bill No. 057 under the account of RDC
Construction in the amount of P153,382.75 dated August
24, 1985.
11) Exhibit M - Bill No. 069 (RDCs account), in the amount
of P1,701,795.00 dated November 20, 1985.
12) Exhibit N - Bill No. 071 (RDCs account) in the amount
of P47,250.00 dated November 22, 1985.
13) Exhibit O - Bill No. 079 (RDCs account) in the amount
of P7,290.00 dated December 6, 1985.
As the trial court found:
The entries recorded under Exhibit K were supported by
Exhibits L, M, N, O which are all Socor Billings under the
account of RDC Construction. These billings were
presented and duly received by the authorized
representatives of defendant. The circumstances
obtaining in the case at bar clearly show that for a long
period of time after receipt thereof, RDC never
manifested its dissatisfaction or objection to the
aforestated billings submitted by plaintiff. Neither did
defendant immediately protest to plaintiffs alleged
incomplete or irregular performance.In view of these
facts, we believe Art. 1235 of the New Civil Code is
applicable.
Art. 1235. When the obligee accepts the performance,
knowing its incompleteness and irregularity and without
expressing any protest or objection, the obligation is
deemed complied with.
FINALLY, after a conscientious scrutiny of the records, we
find Exhibit D-1 (p. 85 record) to be a material proof of
plaintiffs complete fulfillment of its obligation.
There is no question that plaintiff supplied RDC
Construction with Item 302 (Bitunimous Prime Coat),
Item 303 (Bituminous Tack Coat) and Item 310
(Bitunimous Concrete Surface Course) in all the three
projects of the latter. The Lutopan Access Road project,
the Toledo wharf project and the Babag-Lapulapu Road
project.
On the other hand, no proof was ever offered by
defendant to show the presence of other contractors in
those projects. We can therefore conclude that it was
Socor Construction Corp.ALONE who supplied RDC with
Bituminous Prime Coat, Bituminous Tack Coat and
Bituminous Concrete Surface Course for all the
aforenamed three projects.[26]
Indeed, while petitioner had previously paid private
respondent about P1,400,000.00 for deliveries made in
the past, she did not show that she made such payments
only after the delivery receipts had been presented by
private respondent. On the other hand, it appears that
petitioner was able to collect the full amount of project
costs from the government, so that petitioner would be
unjustly enriched at the expense of private respondent if
she is not made to pay what is her just obligation under
the contracts.
WHEREFORE, the decision of the Court of Appeals is
AFFIRMED.
SO ORDERED.
Bellosillo, (Chairman), Puno,
Quisumbing, and Buena, JJ., concur.
G.R. No. 204169 September 11, 2013
YASUO IWASAWA, PETITIONER,
vs.
FELISA CUSTODIO GANGAN1 (A.K.A FELISA GANGAN
ARAMBULO, AND FELISA GANGAN IWASAWA) AND THE
LOCAL CIVIL REGISTRAR OF PASAY CITY, RESPONDENTS.
DECISION
VILLARAMA, JR., J.:
Before us is a petition for review on certiorari under Rule
45 of the 1997 Rules of Civil Procedure, as amended,
assailing the September 4, 2012 Decision2 and October
16, 2012 Order3 of the Regional Trial Court (RTC), Branch
43, of Manila in Civil Case No. 11-126203. The RTC denied
the petition for declaration of nullity of the marriage of
petitioner Yasuo Iwasawa with private respondent Felisa
Custodio Gangan due to insufficient evidence.
The antecedents follow:
Petitioner, a Japanese national, met private respondent
sometime in 2002 in one of his visits to the Philippines.
Private respondent introduced herself as "single" and
"has never married before." Since then, the two became
close to each other. Later that year, petitioner came back
to the Philippines and married private respondent on
November 28, 2002 in Pasay City. After the wedding, the
couple resided in Japan.4
In July 2009, petitioner noticed his wife become
depressed. Suspecting that something might have
happened in the Philippines, he confronted his wife
about it. To his shock, private respondent confessed to
him that she received news that her previous husband
passed away.5
Petitioner sought to confirm the truth of his wife’s
confession and discovered that indeed, she was married
to one Raymond Maglonzo Arambulo and that their
marriage took place on June 20, 1994.6 This prompted
petitioner to file a petition7 for the declaration of his
marriage to private respondent as null and void on the
ground that their marriage is a bigamous one, based on
Article 35(4) in relation to Article 41 of the Family Code of
the Philippines.
During trial, aside from his testimony, petitioner also
offered the following pieces of documentary evidence
issued by the National Statistics Office (NSO):
(1) Certificate of Marriage8 between petitioner
and private respondent marked as Exhibit "A" to
prove the fact of marriage between the parties
on November 28, 2002;
(2) Certificate of Marriage9 between private
respondent and Raymond Maglonzo Arambulo
marked as Exhibit "B" to prove the fact of
marriage between the parties on June 20, 1994;
(3) Certificate of Death10 of Raymond Maglonzo
Arambulo marked as Exhibits "C" and "C-1" to
prove the fact of the latter’s death on July 14,
2009; and
(4) Certification11 from the NSO to the effect that
there are two entries of marriage recorded by
the office pertaining to private respondent
marked as Exhibit "D" to prove that private
respondent in fact contracted two marriages,
the first one was to a Raymond Maglonzo
Arambulo on June 20, 1994, and second, to
petitioner on November 28, 2002.
The prosecutor appearing on behalf of the Office of the
Solicitor General (OSG) admitted the authenticity and
due execution of the above documentary exhibits during
pre-trial.12
On September 4, 2012, the RTC rendered the assailed
decision. It ruled that there was insufficient evidence to
prove private respondent’s prior existing valid marriage
to another man. It held that while petitioner offered the
certificate of marriage of private respondent to
Arambulo, it was only petitioner who testified about said
marriage. The RTC ruled that petitioner’s testimony is
unreliable because he has no personal knowledge of
private respondent’s prior marriage nor of Arambulo’s
death which makes him a complete stranger to the
marriage certificate between private respondent and
Arambulo and the latter’s death certificate. It further
ruled that petitioner’s testimony about the NSO
certification is likewise unreliable since he is a stranger to
the preparation of said document.
Petitioner filed a motion for reconsideration, but the
same was denied by the RTC in an Order dated October
16, 2012.
Hence this petition raising the sole legal issue of whether
the testimony of the NSO records custodian certifying the
authenticity and due execution of the public documents
issued by said office was necessary before they could be
accorded evidentiary weight.
Petitioner argues that the documentary evidence he
presented are public documents which are considered
self-authenticating and thus it was unnecessary to call
the NSO Records Custodian as witness. He cites Article
410 of the Civil Code which provides that books making
up the civil register and all documents relating thereto
shall be considered public documents and shall be prima
facie evidence of the facts stated therein. Moreover, the
trial prosecutor himself also admitted the authenticity of
said documents.
The OSG, in its Comment,13 submits that the findings of
the RTC are not in accord with law and established
jurisprudence. It contends that both Republic Act No.
3753, otherwise known as the Law on Registry of Civil
Status, and the Civil Code elaborated on the character of
documents arising from records and entries made by the
civil registrar and categorically declared them as public
documents. Being public documents, said documents are
admissible in evidence even without further proof of
their due execution and genuineness and consequently,
there was no need for the court to require petitioner to
present the records custodian or officer from the NSO to
testify on them. The OSG further contends that public
documents have probative value since they are prima
facie evidence of the facts stated therein as provided in
the above-quoted provision of the Civil Code. Thus, the
OSG submits that the public documents presented by
petitioner, considered together, completely establish the
facts in issue.
In her letter14 dated March 19, 2013 to this Court, private
respondent indicated that she is not against her
husband’s petition to have their marriage declared null
and void. She likewise admitted therein that she
contracted marriage with Arambulo on June 20, 1994 and
contracted a second marriage with petitioner on
November 28, 2002. She further admitted that it was due
to poverty and joblessness that she married petitioner
without telling the latter that she was previously married.
Private respondent also confirmed that it was when she
found out that Arambulo passed away on July 14, 2009
that she had the guts to confess to petitioner about her
previous marriage. Thereafter, she and petitioner have
separated.
We grant the petition.
28, 2002 in Pasay City; (3) that there was no judicial
declaration of nullity of the marriage of private
respondent with Arambulo at the time she married
petitioner; (3) that Arambulo died on July 14, 2009 and
that it was only on said date that private respondent’s
marriage with Arambulo was deemed to have been
dissolved; and (4) that the second marriage of private
respondent to petitioner is bigamous, hence null and
void, since the first marriage was still valid and subsisting
when the second marriage was contracted.
WHEREFORE, the petition for review on certiorari is
GRANTED. The September 4, 2012 Decision and October
16, 2012 Order of the Regional Trial Court of Manila,
Branch 43, in Civil Case No. 11-126203 are hereby SET
ASIDE. The marriage of petitioner Yasuo Iwasawa and
private respondent Felisa Custodio Gangan is declared
NULL and VOID.
The Local Civil Registrar of Pasay City and the National
Statistics Office are hereby ORDERED to make proper
entries into the records of the abovementioned parties in
accordance with this Decision.

There is no question that the documentary evidence No pronouncement as to costs.

submitted by petitioner are all public
documents.1âwphi1 As provided in the Civil Code: SO ORDERED.

ART. 410. The books making up the civil register and all MARTIN S. VILLARAMA, JR.
documents relating thereto shall be considered public Associate Justice
documents and shall be prima facie evidence of the facts
therein contained.

As public documents, they are admissible in evidence

even without further proof of their due execution and
genuineness.15 Thus, the RTC erred when it disregarded
said documents on the sole ground that the petitioner
did not present the records custodian of the NSO who
issued them to testify on their authenticity and due
execution since proof of authenticity and due execution
was not anymore necessary. Moreover, not only are said
documents admissible, they deserve to be given
evidentiary weight because they constitute prima facie
evidence of the facts stated therein. And in the instant
case, the facts stated therein remain unrebutted since
neither the private respondent nor the public prosecutor
presented evidence to the contrary.

This Court has consistently held that a judicial declaration

of nullity is required before a valid subsequent marriage
can be contracted; or else, what transpires is a bigamous
marriage,16 which is void from the beginning as provided
in Article 35(4) of the Family Code of the Philippines. And
this is what transpired in the instant case.

As correctly pointed out by the OSG, the documentary

exhibits taken together concretely establish the nullity of
the marriage of petitioner to private respondent on the
ground that their marriage is bigamous. The exhibits
directly prove the following facts: (1) that private G.R. No. 181163 July 24, 2013
respondent married Arambulo on June 20, 1994 in the
City of Manila; (2) that private respondent contracted a ASIAN TERMINALS, INC., Petitioner,
second marriage this time with petitioner on November vs.
PHILAM INSURANCE CO., INC. (now Chartis Philippines
Insurance, Inc.), Respondent.
x-----------------------x
G.R. No. 181262
PHILAM INSURANCE CO., INC. (now Chartis Philippines
Insurance, Inc.), Petitioner,
vs.
WESTWIND SHIPPING CORPORATION and ASIAN
TERMINALS, INC., Respondents.
x-----------------------x
G.R. No. 181319
WESTWIND SHIPPING CORPORATION, Petitioner,
vs.
PHILAM INSURANCE CO., INC. (now Chartis Philippines
Insurance, Inc.) and ASIAN TERMINALS,
INC.,Respondents.
DECISION
VILLARAMA, JR., J.:
Before us are three consolidated petitions for review on
certiorari assailing the Decision1 dated October 15, 2007
and the Resolution2 dated January 11, 2008 of the Court
of Appeals (CA) which affirmed with modification the
Decision3 of the Regional Trial Court (RTC) of Makati City,
Branch 148, in Civil Case No. 96-062. The RTC had
ordered Westwind Shipping Corporation (Westwind) and
Asian Terminals, Inc. (ATI) to pay, jointly and severally,
Philam Insurance Co., Inc. (Philam) the sum of
₱633,957.15, with interest at 12% per annum from the
date of judicial demand and ₱158,989.28 as attorney’s
fees.
The facts of the case follow:
On April 15, 1995, Nichimen Corporation shipped to
Universal Motors Corporation (Universal Motors) 219
packages containing 120 units of brand new Nissan
Pickup Truck Double Cab 4x2 model, without engine, tires
and batteries, on board the vessel S/S "Calayan Iris" from
Japan to Manila. The shipment, which had a declared
value of US$81,368 or ₱29,400,000, was insured with
Philam against all risks under Marine Policy No. 708-
8006717-4.4
The carrying vessel arrived at the port of Manila on April
20, 1995, and when the shipment was unloaded by the
staff of ATI, it was found that the package marked as 03-
245-42K/1 was in bad order.5 The Turn Over Survey of
Bad Order Cargoes6 dated April 21, 1995 identified two
packages, labeled 03-245-42K/1 and 03/237/7CK/2, as
being dented and broken. Thereafter, the cargoes were
stored for temporary safekeeping inside CFS Warehouse
in Pier No. 5.
On May 11, 1995, the shipment was withdrawn by R.F.
Revilla Customs Brokerage, Inc., the authorized broker of
Universal Motors, and delivered to the latter’s warehouse
in Mandaluyong City. Upon the request7 of Universal
Motors, a bad order survey was conducted on the
cargoes and it was found that one Frame Axle Sub
without LWR was deeply dented on the buffle plate while
six Frame Assembly with Bush were deformed and
misaligned.8 Owing to the extent of the damage to said
cargoes, Universal Motors declared them a total loss.
On August 4, 1995, Universal Motors filed a formal claim
for damages in the amount of ₱643,963.84 against
Westwind,9 ATI10 and R.F. Revilla Customs Brokerage,
Inc.11 When Universal Motors’ demands remained
unheeded, it sought reparation from and was
compensated in the sum of ₱633,957.15 by Philam.
Accordingly, Universal Motors issued a Subrogation
Receipt12 dated November 15, 1995 in favor of Philam.
On January 18, 1996, Philam, as subrogee of Universal
Motors, filed a Complaint13 for damages against
Westwind, ATI and R.F. Revilla Customs Brokerage, Inc.
before the RTC of Makati City, Branch 148.
On September 24, 1999, the RTC rendered judgment in
favor of Philam and ordered Westwind and ATI to pay
Philam, jointly and severally, the sum of ₱633,957.15
with interest at the rate of 12% per annum, ₱158,989.28
by way of attorney’s fees and expenses of litigation.
The court a quo ruled that there was sufficient evidence
to establish the respective participation of Westwind and
ATI in the discharge of and consequent damage to the
shipment. It found that the subject cargoes were
compressed while being hoisted using a cable that was
too short and taut.
The trial court observed that while the staff of ATI
undertook the physical unloading of the cargoes from the
carrying vessel, Westwind’s duty officer exercised full
supervision and control throughout the process. It held
Westwind vicariously liable for failing to prove that it
exercised extraordinary diligence in the supervision of
the ATI stevedores who unloaded the cargoes from the
vessel. However, the court absolved R.F. Revilla Customs
Brokerage, Inc. from liability in light of its finding that the
cargoes had been damaged before delivery to the
consignee.
The trial court acknowledged the subrogation between
Philam and Universal Motors on the strength of the
Subrogation Receipt dated November 15, 1995. It
likewise upheld Philam’s claim for the value of the alleged
damaged vehicle parts contained in Case Nos. 03-245-
42K/1 and 03-245-51K or specifically for "7 pieces of
Frame Axle Sub Without Lower and Frame Assembly with
Bush."14
Westwind filed a Motion for Reconsideration15 which
was, however, denied in an Order16 dated October 26,
2000.
On appeal, the CA affirmed with modification the ruling
of the RTC. In a Decision dated October 15, 2007, the
appellate court directed Westwind and ATI to pay Philam,
jointly and severally, the amount of ₱190,684.48 with
interest at the rate of 12% per annum until fully paid,
attorney’s fees of ₱47,671 and litigation expenses.
The CA stressed that Philam may not modify its
allegations by claiming in its Appellee’s Brief 17 that the six
pieces of Frame Assembly with Bush, which were
purportedly damaged, were also inside Case No. 03-245-
42K/1. The CA noted that in its Complaint, Philam alleged
that "one (1) pc. FRAME AXLE SUB W/O LWR from Case
No. 03-245-42K/1 was completely deformed and
misaligned, and six (6) other pcs. of FRAME ASSEMBLY
WITH BUSH from Case No. 03-245-51K were likewise
completely deformed and misaligned."18
The appellate court accordingly affirmed Westwind and
ATI’s joint and solidary liability for the damage to only
one (1) unit of Frame Axle Sub without Lower inside Case
No. 03-245-42K/1. It also noted that when said cargo
sustained damage, it was not yet in the custody of the
consignee or the person who had the right to receive it.
The CA pointed out that Westwind’s duty to observe
extraordinary diligence in the care of the cargoes
subsisted during unloading thereof by ATI’s personnel
since the former exercised full control and supervision
over the discharging operation.
Similarly, the appellate court held ATI liable for the
negligence of its employees who carried out the
offloading of cargoes from the ship to the pier. As regards
the extent of ATI’s liability, the CA ruled that ATI cannot
limit its liability to ₱5,000 per damaged package. It
explained that Section 7.0119 of the Contract for Cargo
Handling Services20does not apply in this case since ATI
was not yet in custody and control of the cargoes when
the Frame Axle Sub without Lower suffered damage.
Citing Belgian Overseas Chartering and Shipping N.V. v.
Philippine First Insurance Co., Inc., 21 the appellate court
also held that Philam’s action for damages had not
prescribed notwithstanding the absence of a notice of
claim.
All the parties moved for reconsideration, but their
motions were denied in a Resolution dated January 11,
2008. Thus, they each filed a petition for review on
certiorari which were consolidated together by this Court
considering that all three petitions assail the same CA
decision and resolution and involve the same parties.
Essentially, the issues posed by petitioner ATI in G.R. No.
181163, petitioner Philam in G.R. No. 181262 and
petitioner Westwind in G.R. No. 181319 can be summed
up into and resolved by addressing three questions: (1)
Has Philam’s action for damages prescribed? (2) Who
between Westwind and ATI should be held liable for the
damaged cargoes? and (3) What is the extent of their
liability?
Petitioners’ Arguments
G.R. No. 181163
Petitioner ATI disowns liability for the damage to the
Frame Axle Sub without Lower inside Case No. 03-245-
42K/1. It shifts the blame to Westwind, whom it charges
with negligence in the supervision of the stevedores who
unloaded the cargoes. ATI admits that the damage could
have been averted had Westwind observed extraordinary
diligence in handling the goods. Even so, ATI suspects
that Case No. 03-245-42K/1 is "weak and
defective"22 considering that it alone sustained damage
out of the 219 packages.
Notwithstanding, petitioner ATI submits that, at most, it
can be held liable to pay only ₱5,000 per package
pursuant to its Contract for Cargo Handling Services. ATI
maintains that it was not properly notified of the actual
value of the cargoes prior to their discharge from the
vessel.
G.R. No. 181262
Petitioner Philam supports the CA in holding both
Westwind and ATI liable for the deformed and misaligned
Frame Axle Sub without Lower inside Case No. 03-245-
42K/1. It, however, faults the appellate court for
disallowing its claim for the value of six Chassis Frame
Assembly which were likewise supposedly inside Case
Nos. 03-245-51K and 03-245-42K/1. As to the latter
container, Philam anchors its claim on the results of the
Inspection/Survey Report23 of Chartered Adjusters, Inc.,
which the court received without objection from
Westwind and ATI. Petitioner believes that with the offer
and consequent admission of evidence to the effect that
Case No. 03-245-42K/1 contains six pieces of dented
Chassis Frame Assembly, Philam’s claim thereon should
be treated, in all respects, as if it has been raised in the
pleadings. Thus, Philam insists on the reinstatement of
the trial court’s award in its favor for the payment of
₱633,957.15 plus legal interest, ₱158,989.28 as
attorney’s fees and costs.
G.R. No. 181319
Petitioner Westwind denies joint liability with ATI for the
value of the deformed Frame Axle Sub without Lower in
Case No. 03-245-42K/1. Westwind argues that the
evidence shows that ATI was already in actual custody of
said case when the Frame Axle Sub without Lower inside
it was misaligned from being compressed by the tight
cable used to unload it. Accordingly, Westwind ceased to
have responsibility over the cargoes as provided in
paragraph 4 of the Bill of Lading which provides that the
responsibility of the carrier shall cease when the goods
are taken into the custody of the arrastre.
Westwind contends that sole liability for the damage
rests on ATI since it was the latter’s stevedores who
operated the ship’s gear to unload the cargoes. Westwind
reasons that ATI is an independent company, over whose
employees and operations it does not exercise control.
Moreover, it was ATI’s employees who selected and used
the wrong cable to lift the box containing the cargo which
was damaged.
Westwind likewise believes that ATI is bound by its
acceptance of the goods in good order despite a finding
that Case No. 03-245-42K/1 was partly torn and
crumpled on one side. Westwind also notes that the
discovery that a piece of Frame Axle Sub without Lower
was completely deformed and misaligned came only on
May 12, 1995 or 22 days after the cargoes were turned
over to ATI and after the same had been hauled by R.F.
Revilla Customs Brokerage, Inc.
Westwind further argues that the CA erred in holding it
liable considering that Philam’s cause of action has
prescribed since the latter filed a formal claim with it only
on August 17, 1995 or four months after the cargoes
arrived on April 20, 1995. Westwind stresses that
according to the provisions of clause 20, paragraph 224 of
the Bill of Lading as well as Article 36625 of the Code of
Commerce, the consignee had until April 20, 1995 within
which to make a claim considering the readily apparent
nature of the damage, or until April 27, 1995 at the latest,
if it is assumed that the damage is not readily apparent.
Lastly, petitioner Westwind contests the imposition of
12% interest on the award of damages to Philam
reckoned from the time of extrajudicial demand.
Westwind asserts that, at most, it can only be charged
with 6% interest since the damages claimed by Philam
does not constitute a loan or forbearance of money.
The Court’s Ruling
The three consolidated petitions before us call for a
determination of who between ATI and Westwind is
liable for the damage suffered by the subject cargo and
to what extent. However, the resolution of the issues
raised by the present petitions is predicated on the
appreciation of factual issues which is beyond the scope
of a petition for review on certiorari under Rule 45 of the
1997 Rules of Civil Procedure, as amended. It is settled
that in petitions for review on certiorari, only questions
of law may be put in issue. Questions of fact cannot be
entertained.26
There is a question of law if the issue raised is capable of
being resolved without need of reviewing the probative
value of the evidence. The resolution of the issue must
rest solely on what the law provides on the given set of
circumstances. Once it is clear that the issue invites a
review of the evidence presented, the question posed is
one of fact. If the query requires a re-evaluation of the
credibility of witnesses, or the existence or relevance of
surrounding circumstances and their relation to each
other, the issue in that query is factual.27
In the present petitions, the resolution of the question as
to who between Westwind and ATI should be liable for
the damages to the cargo and to what extent would have
this Court pass upon the evidence on record. But while it
is not our duty to review, examine and evaluate or weigh
all over again the probative value of the evidence
presented,28the Court may nonetheless resolve questions
of fact when the case falls under any of the following
exceptions:
(1) when the findings are grounded entirely on
speculation, surmises, or conjectures; (2) when the
inference made is manifestly mistaken, absurd, or
impossible; (3) when there is grave abuse of discretion;
(4) when the judgment is based on a misapprehension of
facts; (5) when the findings of fact are conflicting; (6)
when in making its findings the Court of Appeals went
beyond the issues of the case, or its findings are contrary
to the admissions of both the appellant and the appellee;
(7) when the findings are contrary to those of the trial
court; (8) when the findings are conclusions without
citation of specific evidence on which they are based; (9)
when the facts set forth in the petition as well as in the
petitioner’s main and reply briefs are not disputed by the
respondent; and (10) when the findings of fact are
premised on the supposed absence of evidence and
contradicted by the evidence on record.29
In the cases at bar, the fifth and seventh exceptions apply.
While the CA affirmed the joint liability of ATI and
Westwind, it held them liable only for the value of one
unit of Frame Axle Sub without Lower inside Case No. 03-
245-42K/1. The appellate court disallowed the award of
damages for the six pieces of Frame Assembly with Bush,
which petitioner Philam alleged, for the first time in its
Appellee’s Brief, to be likewise inside Case No. 03-245-
42K/1. Lastly, the CA reduced the award of attorney’s fees
to ₱47,671.
Foremost, the Court holds that petitioner Philam has
adequately established the basis of its claim against
petitioners ATI and Westwind. Philam, as insurer, was
subrogated to the rights of the consignee, Universal
Motors Corporation, pursuant to the Subrogation Receipt
executed by the latter in favor of the former. The right of
subrogation accrues simply upon payment by the
insurance company of the insurance claim.30 Petitioner
Philam’s action finds support in Article 2207 of the Civil
Code, which provides as follows:
Art. 2207. If the plaintiff’s property has been insured, and
he has received indemnity from the insurance company
for the injury or loss arising out of the wrong or breach of
contract complained of, the insurance company shall be
subrogated to the rights of the insured against the
wrongdoer or the person who has violated the contract. x
x x.
In their respective comments31 to Philam’s Formal Offer
of Evidence,32 petitioners ATI and Westwind objected to
the admission of Marine Certificate No. 708-8006717-4
and the Subrogation Receipt as documentary exhibits "B"
and "P," respectively. Petitioner Westwind objects to the
admission of both documents for being hearsay as they
were not authenticated by the persons who executed
them. For the same reason, petitioner ATI assails the
admissibility of the Subrogation Receipt. As regards
Marine Certificate No. 708-8006717-4, ATI makes issue of
the fact that the same was issued only on April 27, 1995
or 12 days after the shipment was loaded on and
transported via S/S "Calayan Iris."
The nature of documents as either public or private
determines how the documents may be presented as
evidence in court. Public documents, as enumerated
under Section 19,33 Rule 132 of the Rules of Court, are
self-authenticating and require no further authentication
in order to be presented as evidence in court. 34
In contrast, a private document is any other writing, deed
or instrument executed by a private person without the
intervention of a notary or other person legally
authorized by which some disposition or agreement is
proved or set forth. Lacking the official or sovereign
character of a public document, or the solemnities
prescribed by law, a private document requires
authentication35 in the manner prescribed under Section
20, Rule 132 of the Rules:
SEC. 20. Proof of private document. – Before any private
document offered as authentic is received in evidence, its
due execution and authenticity must be proved either:
(a) By anyone who saw the document executed
or written; or
(b) By evidence of the genuineness of the
signature or handwriting of the maker.
Any other private document need only be identified as
that which it is claimed to be.
The requirement of authentication of a private document
is excused only in four instances, specifically: (a) when
the document is an ancient one within the context of
Section 21,36 Rule 132 of the Rules; (b) when the
genuineness and authenticity of the actionable
document have not been specifically denied under oath
by the adverse party; (c) when the genuineness and
authenticity of the document have been admitted; or (d)
when the document is not being offered as genuine. 37
Indubitably, Marine Certificate No. 708-8006717-4 and
the Subrogation Receipt are private documents which
Philam and the consignee, respectively, issue in the
pursuit of their business. Since none of the exceptions to
the requirement of authentication of a private document
obtains in these cases, said documents may not be
admitted in evidence for Philam without being properly
authenticated.
Contrary to the contention of petitioners ATI and
Westwind, however, Philam presented its claims officer,
Ricardo Ongchangco, Jr. to testify on the execution of the
Subrogation Receipt, as follows:
ATTY. PALACIOS
Q How were you able to get hold of this subrogation
receipt?
A Because I personally delivered the claim check to
consignee and have them receive the said check.
Q I see. Therefore, what you are saying is that you
personally delivered the claim check of Universal Motors
Corporation to that company and you have the
subrogation receipt signed by them personally?
A Yes, sir.
Q And it was signed in your presence?
A Yes, sir.38
Indeed, all that the Rules require to establish the
authenticity of a document is the testimony of a person
who saw the document executed or written. Thus, the
trial court did not err in admitting the Subrogation
Receipt in evidence despite petitioners ATI and
Westwind’s objections that it was not authenticated by
the person who signed it.
However, the same cannot be said about Marine
Certificate No. 708-8006717-4 which Ongchangcho, Jr.
merely identified in court. There is nothing in
Ongchangco, Jr.’s testimony which indicates that he saw
Philam’s authorized representative sign said document,
thus:
ATTY. PALACIOS
Q Now, I am presenting to you a copy of this marine
certificate 708-8006717-4 issued by Philam Insurance
Company, Inc. to Universal Motors Corporation on April
15, 1995. Will you tell us what relation does it have to
that policy risk claim mentioned in that letter?
A This is a photocopy of the said policy issued by the
consignee Universal Motors Corporation.
ATTY. PALACIOS
I see. May I request, if Your Honor please, that this
marine risk policy of the plaintiff as submitted by
claimant Universal Motors Corporation be marked as
Exhibit B.
COURT
Mark it.39
As regards the issuance of Marine Certificate No. 708-
8006717-4 after the fact of loss occurred, suffice it to say
that said document simply certifies the existence of an
open insurance policy in favor of the consignee. Hence,
the reference to an "Open Policy Number 9595093" in
said certificate. The Court finds it completely absurd to
suppose that any insurance company, of sound business
practice, would assume a loss that has already been
realized, when the profitability of its business rests
precisely on the non-happening of the risk insured
against.
Yet, even with the exclusion of Marine Certificate No.
708-8006717-4, the Subrogation Receipt, on its own, is
adequate proof that petitioner Philam paid the
consignee’s claim on the damaged goods. Petitioners ATI
and Westwind failed to offer any evidence to controvert
the same. In Malayan Insurance Co., Inc. v. Alberto,40 the
Court explained the effect of payment by the insurer of
the insurance claim in this wise:
We have held that payment by the insurer to the insured
operates as an equitable assignment to the insurer of all
the remedies that the insured may have against the third
party whose negligence or wrongful act caused the loss.
The right of subrogation is not dependent upon, nor does
it grow out of, any privity of contract. It accrues simply
upon payment by the insurance company of the
insurance claim. The doctrine of subrogation has its roots
in equity. It is designed to promote and accomplish
justice; and is the mode that equity adopts to compel the
ultimate payment of a debt by one who, in justice, equity,
and good conscience, ought to pay.41
Neither do we find support in petitioner Westwind’s
contention that Philam’s right of action has prescribed.
The Carriage of Goods by Sea Act (COGSA) or Public Act
No. 521 of the 74th US Congress, was accepted to be
made applicable to all contracts for the carriage of goods
by sea to and from Philippine ports in foreign trade by
virtue of Commonwealth Act (C.A.) No. 65. 42 Section 1 of
C.A. No. 65 states:
Section 1. That the provisions of Public Act Numbered
Five hundred and twenty-one of the Seventy-fourth
Congress of the United States, approved on April
sixteenth, nineteen hundred and thirty-six, be accepted,
as it is hereby accepted to be made applicable to all
contracts for the carriage of goods by sea to and from
Philippine ports in foreign trade: Provided, That nothing
in the Act shall be construed as repealing any existing
provision of the Code of Commerce which is now in force,
or as limiting its application.
The prescriptive period for filing an action for the loss or
damage of the goods under the COGSA is found in
paragraph (6), Section 3, thus:
(6) Unless notice of loss or damage and the general
nature of such loss or damage be given in writing to the
carrier or his agent at the port of discharge before or at
the time of the removal of the goods into the custody of
the person entitled to delivery thereof under the contract
of carriage, such removal shall be prima facie evidence of
the delivery by the carrier of the goods as described in
the bill of lading. If the loss or damage is not apparent,
the notice must be given within three days of the
delivery.
Said notice of loss or damage maybe endorsed upon the
receipt for the goods given by the person taking delivery
thereof.
The notice in writing need not be given if the state of the
goods has at the time of their receipt been the subject of
joint survey or inspection.
In any event the carrier and the ship shall be discharged
from all liability in respect of loss or damage unless suit is
brought within one year after delivery of the goods or the
date when the goods should have been delivered:
Provided, That if a notice of loss or damage, either
apparent or concealed, is not given as provided for in this
section, that fact shall not affect or prejudice the right of
the shipper to bring suit within one year after the
delivery of the goods or the date when the goods should
have been delivered.
In the Bill of Lading43 dated April 15, 1995, Rizal
Commercial Banking Corporation (RCBC) is indicated as
the consignee while Universal Motors is listed as the
notify party. These designations are in line with the
subject shipment being covered by Letter of Credit No.
I501054, which RCBC issued upon the request of
Universal Motors.
A letter of credit is a financial device developed by
merchants as a convenient and relatively safe mode of
dealing with sales of goods to satisfy the seemingly
irreconcilable interests of a seller, who refuses to part
with his goods before he is paid, and a buyer, who wants
to have control of his goods before paying.44 However,
letters of credit are employed by the parties desiring to
enter into commercial transactions, not for the benefit of
the issuing bank but mainly for the benefit of the parties
to the original transaction,45 in these cases, Nichimen
Corporation as the seller and Universal Motors as the
buyer. Hence, the latter, as the buyer of the Nissan CKD
parts, should be regarded as the person entitled to
delivery of the goods. Accordingly, for purposes of
reckoning when notice of loss or damage should be given
to the carrier or its agent, the date of delivery to
Universal Motors is controlling.
S/S "Calayan Iris" arrived at the port of Manila on April
20, 1995, and the subject cargoes were discharged to the
custody of ATI the next day. The goods were then
withdrawn from the CFS Warehouse on May 11, 1995
and the last of the packages delivered to Universal
Motors on May 17, 1995. Prior to this, the latter filed a
Request for Bad Order Survey46 on May 12,1995 following
a joint inspection where it was discovered that six pieces
of Chassis Frame Assembly from two bundles were
deformed and one Front Axle Sub without Lower from a
steel case was dented. Yet, it was not until August 4, 1995
that Universal Motors filed a formal claim for damages
against petitioner Westwind.
Even so, we have held in Insurance Company of North
America v. Asian Terminals, Inc. that a request for, and
the result of a bad order examination, done within the
reglementary period for furnishing notice of loss or
damage to the carrier or its agent, serves the purpose of
a claim. A claim is required to be filed within the
reglementary period to afford the carrier or depositary
reasonable opportunity and facilities to check the validity
of the claims while facts are still fresh in the minds of the
persons who took part in the transaction and documents
are still available.47 Here, Universal Motors filed a request
for bad order survey on May 12, 1995, even before all the
packages could be unloaded to its warehouse.
Moreover, paragraph (6), Section 3 of the COGSA clearly
states that failure to comply with the notice requirement
shall not affect or prejudice the right of the shipper to
bring suit within one year after delivery of the goods.
Petitioner Philam, as subrogee of Universal Motors, filed
the Complaint for damages on January 18, 1996, just
eight months after all the packages were delivered to its
possession on May 17, 1995. Evidently, petitioner
Philam’s action against petitioners Westwind and ATI was
seasonably filed.
This brings us to the question that must be resolved in
these consolidated petitions. Who between Westwind
and ATI should be liable for the damage to the cargo?
It is undisputed that Steel Case No. 03-245-42K/1 was
partly torn and crumpled on one side while it was being
unloaded from the carrying vessel. The damage to said
container was noted in the Bad Order Cargo
Receipt48dated April 20, 1995 and Turn Over Survey of
Bad Order Cargoes dated April 21, 1995. The Turn Over
Survey of Bad Order Cargoes indicates that said steel case
was not opened at the time of survey and was accepted
by the arrastre in good order. Meanwhile, the Bad Order
Cargo Receipt bore a notation "B.O. not yet t/over to
ATI." On the basis of these documents, petitioner ATI
claims that the contents of Steel Case No. 03-245-42K/1
were damaged while in the custody of petitioner
Westwind.
We agree.
Common carriers, from the nature of their business and
for reasons of public policy, are bound to observe
extraordinary diligence in the vigilance over the goods
transported by them. Subject to certain exceptions
enumerated under Article 173449 of the Civil Code,
common carriers are responsible for the loss, destruction,
or deterioration of the goods. The extraordinary
responsibility of the common carrier lasts from the time
the goods are unconditionally placed in the possession of,
and received by the carrier for transportation until the
same are delivered, actually or constructively, by the
carrier to the consignee, or to the person who has a right
to receive them.50
The court a quo, however, found both petitioners
Westwind and ATI, jointly and severally, liable for the
damage to the cargo. It observed that while the staff of
ATI undertook the physical unloading of the cargoes from
the carrying vessel, Westwind’s duty officer exercised full
supervision and control over the entire process. The
appellate court affirmed the solidary liability of Westwind
and ATI, but only for the damage to one Frame Axle Sub
without Lower.
Upon a careful review of the records, the Court finds no
reason to deviate from the finding that petitioners
Westwind and ATI are concurrently accountable for the
damage to the content of Steel Case No. 03-245-42K/1.
Section 251 of the COGSA provides that under every
contract of carriage of goods by the sea, the carrier in
relation to the loading, handling, stowage, carriage,
custody, care and discharge of such goods, shall be
subject to the responsibilities and liabilities and entitled
to the rights and immunities set forth in the Act. Section
3 (2)52 thereof then states that among the carrier’s
responsibilities are to properly load, handle, stow, carry,
keep, care for and discharge the goods carried.53
At the trial, Westwind’s Operation Assistant, Menandro
G. Ramirez, testified on the presence of a ship officer to
supervise the unloading of the subject cargoes.
ATTY. LLAMAS
Q Having been present during the entire discharging
operation, do you remember who else were present at
that time?
A Our surveyor and our checker the foreman of ATI.
Q Were there officials of the ship present also?
A Yes, sir there was an officer of the vessel on duty at
that time.54
xxxx
Q Who selected the cable slink to be used?
A ATI Operation.
Q Are you aware of how they made that selection?
A Before the vessel arrived we issued a manifesto of the
storage plan informing the ATI of what type of cargo and
equipment will be utilitized in discharging the cargo. 55
xxxx
Q You testified that it was the ATI foremen who select the
cable slink to be used in discharging, is that correct?
A Yes sir, because they are the one who select the slink
and they know the kind of cargoes because they
inspected it before the discharge of said cargo.
Q Are you aware that the ship captain is consulted in the
selection of the cable sling?
A Because the ship captain knows for a fact the
equipment being utilized in the discharge of the cargoes
because before the ship leave the port of Japan the crew
already utilized the proper equipment fitted to the
cargo.56(Emphasis supplied.)
It is settled in maritime law jurisprudence that cargoes
while being unloaded generally remain under the custody
of the carrier.57 The Damage Survey Report58 of the survey
conducted by Phil. Navtech Services, Inc. from April 20-
21, 1995 reveals that Case No. 03-245-42K/1 was
damaged by ATI stevedores due to overtightening of a
cable sling hold during discharge from the vessel’s hatch
to the pier. Since the damage to the cargo was incurred
during the discharge of the shipment and while under the
supervision of the carrier, the latter is liable for the
damage caused to the cargo.
This is not to say, however, that petitioner ATI is without
liability for the damaged cargo.
The functions of an arrastre operator involve the
handling of cargo deposited on the wharf or between the
establishment of the consignee or shipper and the ship’s
tackle. Being the custodian of the goods discharged from
a vessel, an arrastre operator’s duty is to take good care
of the goods and to turn them over to the party entitled
to their possession.59
Handling cargo is mainly the arrastre operator’s principal
work so its drivers/operators or employees should
observe the standards and measures necessary to
prevent losses and damage to shipments under its
custody.60
While it is true that an arrastre operator and a carrier
may not be held solidarily liable at all times, 61 the facts of
these cases show that apart from ATI’s stevedores being
directly in charge of the physical unloading of the cargo,
its foreman picked the cable sling that was used to hoist
the packages for transfer to the dock. Moreover, the fact
that 218 of the 219 packages were unloaded with the
same sling unharmed is telling of the inadequate care
with which ATI’s stevedore handled and discharged Case
No. 03-245-42K/1.
Adjusters, Inc., it mentioned six pieces of chassis frame
assembly with deformed body mounting bracket.
However, it merely noted the same as coming from two
bundles with no identifying marks.
Lastly, we agree with petitioner Westwind that the CA
erred in imposing an interest rate of 12% on the award of
damages. Under Article 2209 of the Civil Code, when an
obligation not constituting a loan or forbearance of
money is breached, an interest on the amount of
damages awarded may be imposed at the discretion of
the court at the rate of 6% per annum.64 In the similar
case of Belgian Overseas Chartering and Shipping NV v.
Philippine First Insurance Co., lnc., 65 the Court reduced
the rate of interest on the damages awarded to the
carrier therein to 6% from the time of the filing of the
complaint until the finality of the decision.
WHEREFORE, the Court AFFIRMS with MODIFICATION the
Decision dated October 15,2007 and the Resolution
dated January 11, 2008 of the Court of Appeals in CA-G.R.
CV No. 69284 in that the interest rate on the award of
₱190,684.48 is reduced to 6% per annum from the date
of extrajudicial demand, until fully paid.
With costs against the petitioners in G.R. No. 181163 and
G.R. No. 181319, respectively.
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice

With respect to petitioners ATI and Westwind’s liability,

we agree with the CA that the same should be confined
to the value of the one piece Frame Axle Sub without
Lower.

In the Bad Order Inspection Report62 prepared by

Universal Motors, the latter referred to Case No. 03-245-
42K/1 as the source of said Frame Axle Sub without
Lower which suffered a deep dent on its buffle plate. Yet,
it identified Case No. 03-245-51K as the container which
bore the six pieces Frame Assembly with Bush. Thus, in
Philam’s Complaint, it alleged that "the entire shipment
showed one (1) pc. FRAME AXLE SUB W/O LWR from
Case No. 03-245-42K/1 was completely deformed and
misaligned, and six (6) other pcs. of FRAME ASSEMBLY
WITH BUSH from Case No. 03-245-51K were likewise
completely deformed and misaligned."63 Philam later
claimed in its Appellee’s Brief that the six pieces of Frame
Assembly with Bush were also inside the damaged Case
No. 03-245-42K/1. G.R. No. 165285 June 18, 2012

However, there is nothing in the records to show LOMISES ALUDOS, deceased, substituted by FLORA
conclusively that the six Frame Assembly with Bush were ALUDOS, Petitioner,
likewise contained in and damaged inside Case No. 03- vs.
245-42K/1. In the Inspection Survey Report of Chartered JOHNNY M. SUERTE,* Respondent.
 DECISION
BRION, J.:
Before the Court is a petition for review on certiorari filed
under Rule 45 of the Rules of Court by Lomises Aludos,
through his wife Flora Aludos (Lomises).1 Lomises seeks
the reversal of the decision2 dated August 29, 2002 of the
Court of Appeals (CA) in CA-G.R. CV No. 63113, as well as
the resolution3 dated August 17, 2004.
THE FACTS
Sometime in January 1969, Lomises acquired from the
Baguio City Government the right to occupy two stalls in
the Hangar Market in Baguio City, as evidenced by a
permit issued by the City Treasurer. 4
On September 8, 1984, Lomises entered into an
agreement with respondent Johnny M. Suerte for the
transfer of all improvements and rights over the two
market stalls (Stall Nos. 9 and 10) for the amount of
₱260,000.00. Johnny gave a down payment of
₱45,000.00 to Lomises, who acknowledged receipt of the
amount in a document5 executed on the same date as the
agreement:
RECEIPT
₱45,000.00 September 8, 1984
Received the Sum of Forty Five Thousand Pesos
(₱45,000.00) from JOHNNY M. SUERTE, with postal
address at Kamog, Sablan, Benguet Province, Philippine
Currency as an advance or partial downpayment of
Improvements and Rights over Stall Nos. 9 and 10,
situated at Refreshment Section, Hangar Market
Compound, Baguio City, and the said amount will be
deducted from the agreed proceeds of the transaction in
the amount of Two Hundred Sixty Thousand Pesos
(₱260,000.00), Philippine Currency and payable starting
from September 1984 up to December 1985, and/or (16)
months.
This receipt will be formalise (sic) later, and the Deed of
Absolute Transfer of Improvements and Rights over the
said Stall be executed immediately upon full payment of
the balance stated in the above.
Right hand thumbmark:
[Thumbmark affixed]
LOMISES F. ALUDOS
(Registered Stall Holder)
With the Consent of the Wife:
[Signature affixed]
FLORA MENES
(Wife)
Witness to Thumbmark and/or
Paid in the presence of:
[Signature [Signature
affixed] affixed]
Domes M. Agnes M. Boras
Suerte (witness)
(witness)
[Signature [Signature
affixed] affixed]
Ana Dolores Aludos
Comnad (with
(witness) her
consent/witness)
Johnny made a subsequent payment of ₱23,000.00;
hence, a total of ₱68,000.00 of the ₱260,000.00 purchase
price had been made as of 1984. Before full payment
could be made, however, Lomises backed out of the
agreement and returned the ₱68,000.00 to Domes and
Jaime Suerte, the mother and the father of Johnny,
respectively. The return of the ₱68,000.00 down payment
was embodied in a handwritten receipt6 dated October 9,
1985:
RECEIPT
₱68,000.00
Received from Mr. Lomises Aludos the sum of Sixty-eight
thousand (₱68,000.00) Pesos as reimbursement of my
money.
Baguio City, October 9, 1985.
[Signature affixed]
JAIME SUERTE
Witnesses
[Illegible signature]
Through a letter dated October 15, 1985, Johnny
protested the return of his money, and insisted on the
continuation and enforcement of his agreement with
Lomises. When Lomises refused Johnny’s protest, Johnny
filed a complaint against Lomises before the Regional
Trial Court (RTC), Branch 7, Baguio City, for specific
performance with damages, docketed as Civil Case No.
720-R. Johnny prayed that, after due proceedings,
judgment be rendered ordering Lomises to (1) accept the
payment of the balance of ₱192,000.00; and (2) execute
a final deed of sale and/or transfer the improvements
and rights over the two market stalls in his favor.
In a decision dated November 24, 1998,7 the RTC nullified
the agreement between Johnny and Lomises for failure to
secure the consent of the Baguio City Government to the
agreement. The RTC found that Lomises was a mere
lessee of the market stalls, and the Baguio City
Government was the owner-lessor of the stalls. Under
Article 1649 of the Civil Code, "[t]he lessee cannot assign
the lease without the consent of the lessor, unless there
is a stipulation to the contrary." As the permit issued to
Lomises did not contain any provision that the lease of
the market stalls could further be assigned, and in the
absence of the consent of the Baguio City Government to
the agreement, the RTC declared the agreement between
Lomises and Johnny null and void. The nullification of the
agreement required the parties to return what had been
received under the agreement; thus, the RTC ordered
Lomises to return the down payment made by Johnny,
with interest of 12% per annum, computed from the time
the complaint was filed until the amount is fully paid. It
dismissed the parties’ claims for damages.
Lomises appealed the RTC decision to the CA, arguing
that the real agreement between the parties was merely
one of loan, and not of sale; he further claimed that the
loan had been extinguished upon the return of the
₱68,000.00 to Johnny’s mother, Domes.
In a decision dated August 29, 2002,8 the CA rejected
Lomises’ claim that the true agreement was one of loan.
The CA found that there were two agreements entered
into between Johnny and Lomises: one was for the
assignment of leasehold rights and the other was for the
sale of the improvements on the market stalls. The CA
agreed with the RTC that the assignment of the leasehold
rights was void for lack of consent of the lessor, the
Baguio City Government. The sale of the improvements,
however, was valid because these were Lomises’ private
properties. For this reason, the CA remanded the case to
the RTC to determine the value of the improvements on
the two market stalls, existing at the time of the
execution of the agreement.
Lomises moved for the reconsideration of the CA ruling,
contending that no valid sale of the improvements could
be made because the lease contract, dated May 1, 1985,
between Lomises and the Baguio City Government,
supposedly marked as Exh. "A," provided that "[a]ll
improvements [introduced shall] ipso facto become
properties of the City of Baguio."9
In a resolution dated August 17, 2004,10 the CA denied
the motion after finding that Lomises’ lawyer, Atty.
Rodolfo Lockey, misrepresented Exh. "A" as the governing
lease contract between Lomises and the Baguio City
Government; the records reveal that Exh. "A" was merely
a permit issued by the City Treasurer in favor of Lomises.
The contract of lease dated May 1, 1985 was never
formally offered in evidence before the RTC and could
thus not be considered pursuant to the rules of evidence.
Lomises now appeals the CA rulings through the present
petition for review on certiorari.
THE PARTIES’ ARGUMENTS
Lomises insists that the agreement was merely one of
loan, not of sale of improvements and leasehold rights.
Johnny could not afford to purchase from Lomises the
two market stalls for ₱260,000.00 because the former
was a mere college student when the agreement was
entered into in 1984 and was dependent on his parents
for support. The actual lender of the amount was
Johnny’s mother, Domes; Johnny’s name was placed on
the receipt dated September 8, 1984 so that in case the
loan was not paid, the rights over the market stalls would
be transferred to Johnny’s name, not to Domes who
already had a market stall and was thus disqualified from
acquiring another. The receipt dated September 8, 1984,
Lomises pointed out, bears the signature of Domes, not
of Johnny.
Even assuming that Johnny was the real creditor, Lomises
alleges that the loan had been fully paid when he turned
over the amount of ₱68,000.00 to Johnny’s parents, as
evidenced by the receipt dated October 9, 1985. Domes’
claim – that she was pressured to accept the amount – is
an implied admission that payment had nonetheless
been received. When Johnny died during the pendency
of the case before the RTC, his parents became his
successors and inherited all his rights. For having received
the full amount of the loan, Johnny’s parents can no
longer enforce payment of the loan.
Lomises contends that there were no improvements
made on the market stalls other than the stalls
themselves, and these belong to the Baguio City
Government as the lessor. A transfer of the stalls cannot
be made without a transfer of the leasehold rights, in
which case, there would be an indirect violation of the
lease contract with the Baguio City Government. Lomises
further alleges that, at present, the market stalls are
leased by Flora and her daughter who both obtained the
lease in their own right and not as Lomises’ successors.
Johnny, through his remaining successor Domes (Johnny’s
mother), opposed Lomises’ claim. The receipt dated
September 8, 1984 clearly referred to a contract of sale
of the market stalls and not a contract of loan that
Lomises alleges. Although Johnny conceded that the sale
of leasehold rights to the market stalls were void for lack
of consent of the Baguio City Government, he alleged
that the sale of the improvements should be upheld as
valid, as the CA did.
THE COURT’S RULING
The Court does not find the petition meritorious.
The Nature of the Agreement between the Parties
Lomises questions the nature of the agreement between
him and Johnny, insisting that it was a contract of loan,
not an assignment of leasehold rights and sale of
improvements. In other words, what existed was an
equitable mortgage, as contemplated in Article 1602, in
relation with Article 1604, of the Civil Code. "An
equitable mortgage has been defined ‘as one which
although lacking in some formality, or form or words, or
other requisites demanded by a statute, nevertheless
reveals the intention of the parties to charge real
property as security for a debt, there being no
impossibility nor anything contrary to law in this
intent.’"11 Article 1602 of the Civil Code lists down the
circumstances that may indicate that a contract is an
equitable mortgage:
Art. 1602. The contract shall be presumed to be an
equitable mortgage, in any of the following cases:
(1) When the price of a sale with right to
repurchase is unusually inadequate;
(2) When the vendor remains in possession as
lessee or otherwise;
(3) When upon or after the expiration of the
right to repurchase another instrument
extending the period of redemption or granting
a new period is executed;
(4) When the purchaser retains for himself a
part of the purchase price;
(5) When the vendor binds himself to pay the
taxes on the thing sold;
(6) In any other case where it may be fairly
inferred that the real intention of the parties is
that the transaction shall secure the payment of
a debt or the performance of any other
obligation.
In any of the foregoing cases, any money, fruits, or other
benefit to be received by the vendee as rent or otherwise
shall be considered as interest which shall be subject to
the usury laws. [Emphases ours.]
Based on Lomises’ allegations in his pleadings, we
consider three circumstances to determine whether his
claim is well-supported. First, Johnny was a mere college
student dependent on his parents for support when the
agreement was executed, and it was Johnny’s mother,
Domes, who was the party actually interested in
acquiring the market stalls. Second, Lomises received
only ₱48,000.00 of the ₱68,000.00 that Johnny claimed
he gave as down payment; Lomises said that the
₱20,000.00 represented interests on the loan. Third,
Lomises retained possession of the market stalls even
after the execution of the agreement.
Whether separately or taken together, these
circumstances do not support a conclusion that the
parties only intended to enter into a contract of loan.
That Johnny was a mere student when the agreement
was executed does not indicate that he had no financial
capacity to pay the purchase price of ₱260,000.00. At
that time, Johnny was a 26-year old third year
engineering student who operated as a businessman as a
sideline activity and who helped his family sell goods in
the Hangar Market.12 During trial, Johnny was asked
where he was to get the funds to pay the ₱260,000.00
purchase price, and he said he would get a loan from his
grandfather.13 That he did not have the full amount at the
time the agreement was executed does not necessarily
negate his capacity to pay the purchase price, since he
had 16 months to complete the payment. Apart from
Lomises’ bare claim that it was Johnny’s mother, Domes,
who was interested in acquiring his market stalls, we find
no other evidence supporting the claim that Johnny was
merely acting as a dummy for his mother.
Lomises contends that of the ₱68,000.00 given by
Johnny, he only received ₱48,000.00, with the remaining
₱20,000.00 retained by Johnny as interest on the loan.
However, the testimonies of the witnesses presented
during trial, including Lomises himself, negate this claim.
Judge Rodolfo Rodrigo (RTC of Baguio City, Branch VII)
asked Lomises’ lawyer, Atty. Lockey, if they deny receipt
of the ₱68,000.00; Atty. Lockey said that they were not
denying receipt, and added that they had in fact returned
the same amount.14 Judge Rodrigo accurately summarized
their point by stating that "there is no need to dispute
whether the ₱68,000.00 was given, because if [Lomises]
tried to return that x x x he had received that."15 Witness
Atty. Albert Umaming said he counted the money before
he drafted the October 9, 1985 receipt evidencing the
return; he said that Lomises returned ₱68,000.00 in
total.16 Thus, if the transaction was indeed a loan and the
₱20,000.00 interest was already prepaid by Lomises, the
return of the full amount of ₱68,000.00 by Lomises to
Johnny (through his mother, Domes) would not make
sense.
That Lomises retained possession of the market stalls
even after the execution of his agreement with Johnny is
also not an indication that the true transaction between
them was one of loan. Johnny had yet to complete his
payment and, until Lomises decided to forego with their
agreement, had four more months to pay; until then,
Lomises retained ownership and possession of the
market stalls.17
Lomises cannot feign ignorance of the import of the
terms of the receipt of September 8, 1984 by claiming
that he was an illiterate old man. A witness (Ana
Comnad) testified not only of the fact of the sale, but also
that Lomises’ daughter, Dolores, translated the terms of
the agreement from English to Ilocano for Lomises’
benefit;18 Lomises himself admitted this fact.19 If Lomises
believed that the receipt of September 8, 1984 did not
express the parties’ true intent, he could have refused to
sign it or subsequently requested for a reformation of its
terms. Lomises rejected the agreement only after Johnny
sought to enforce it.
Hence, the CA was correct in characterizing the
agreement between Johnny and Lomises as a sale of
improvements and assignment of leasehold rights.
The Validity of the Agreement
Both the RTC and the CA correctly declared that the
assignment of the leasehold rights over the two market
stalls was void since it was made without the consent of
the lessor, the Baguio City Government, as required
under Article 1649 of the Civil Code.20 Neither party
appears to have contested this ruling.
Lomises, however, objects to the CA ruling upholding the
validity of the agreement insofar as it involved the sale of
improvements on the stalls. Lomises alleges that the sale
of the improvements should similarly be voided because
it was made without the consent of the Baguio City
Government, the owner of the improvements, pursuant
to the May 1, 1985 lease contract.21 Lomises further
claims that the stalls themselves are the only
improvements on the property and a transfer of the stalls
cannot be made without transferring the leasehold
rights. Hence, both the assignment of leasehold rights
and the sale of improvements should be voided.
of September 8, 1984. After this determination, the Court
ORDERS the heirs of Johnny M. Suerte to pay the amount
determined to the heirs of Lomises Aludos, who shall
thereafter execute the deed of sale covering the
improvements in favor of the heirs of Johnny M. Suerte
and deliver the deed to them. Costs against the
petitioner.
SO ORDERED.
ARTURO D. BRION
Associate Justice

The CA has already rejected the evidentiary value of the

May 1, 1985 lease contract between the Baguio City
Government and Lomises, as it was not formally offered
in evidence before the RTC; in fact, the CA admonished
Lomises’ lawyer, Atty. Lockey, for making it appear that it
was part of the records of the case. Under Section 34,
Rule 132 of the Rules of Court, the court shall consider no
evidence which has not been formally offered. "The offer
of evidence is necessary because it is the duty of the
court to rest its findings of fact and its judgment only and
strictly upon the evidence offered by the parties. Unless
and until admitted by the court in evidence for the
purpose or purposes for which such document is offered,
the same is merely a scrap of paper barren of probative
weight."22Although the contract was referred to in
Lomises’ answer to Johnny’s complaint23 and marked as
Exhibit "2" in his pre-trial brief,24 a copy of it was never
attached. In fact, a copy of the May 1, 1985 lease
contract "surfaced" only after Lomises filed a motion for
reconsideration of the CA decision. What was formally
offered was the 1969 permit, which only stated that
Lomises was permitted to occupy a stall in the Baguio
City market and nothing else.25 In other words, no
evidence was presented and formally offered showing
that any and all improvements in the market stalls shall
be owned by the Baguio City Government.

Likewise unsupported by evidence is Lomises’ claim that

the stalls themselves were the only improvements.
Hence, the CA found it proper to order the remand of the
case for the RTC to determine the value of the
improvements on the market stalls existing as of
September 8, 1984.26 We agree with the CA’s order of
remand. We note, however, that Lomises had already
returned the ₱68,000.00 and receipt of the amount has
been duly acknowledged by Johnny’s mother, Domes.
Johnny testified on October 6, 1986 that the money was
still with his mother.27 Thus, upon determination by the
RTC of the actual value of the improvements on the
market stalls, the heirs of Johnny Suerte should pay the
ascertained value of these improvements to Lomises,
who shall thereafter be required to execute the deed of
sale over the improvements in favor of the heirs of
Johnny.

WHEREFORE, under these premises, the Court hereby

AFFIRMS the ruling of the Court of Appeals for the
remand of the case to the Regional Trial Court of Baguio
City, Branch 7, for the determination of the value of the
improvements on Stall Nos. 9 and 10 at the Refreshment
Section of the Hangar Market Compound, Baguio City as
WESTMONT INVESTMENT G.R. No. 194128
Damages[4]arising from their investments against

CORPORATION, petitioner Westmont Investment

Corporation (Wincorp) and respondent Pearlbank
Petitioner, Present:
Securities Inc. (Pearlbank) before the RTC.

Wincorp and Pearlbank filed their separate motions to

PERALTA,* J.,
Acting Chairperson, dismiss.[5] Both motions were anchored on the ground
that the complaint of the Francias failed to state a cause
ABAD,
of action.On July 16, 2001, after several exchanges of
- versus -
MENDOZA, pleadings, the RTC issued an order[6] dismissing the
motions to dismiss of Wincorp and Pearlbank for lack of
SERENO,* * and
merit.
PERLAS-BERNABE, JJ.
Wincorp then filed its Answer, [7] while Pearlbank

AMOS P. FRANCIA, JR., filed its Answer with Counterclaim and Crossclaim
(against Wincorp).[8]
CECILIA ZAMORA,

BENJAMIN FRANCIA, and The case was set for pre-trial but before pre-trial
conference could be held, Wincorp filed its Motion to
PEARLBANK SECURITIES,
Dismiss Crossclaim[9] of Pearlbank to which the latter filed
Promulgated:
INC., an opposition.[10] The RTC denied Wincorps motion to
dismiss crossclaim.[11]
Respondents.
December 7, 2011
The pre-trial conference was later conducted after the
parties had filed their respective pre-trial briefs. The
parties agreed on the following stipulation of facts, as
x----------------------------------------------------------------- x contained in the Pre-Trial Order[12] issued by the RTC
on April 17, 2002:

DECISION 1. The personal and juridical

circumstances of the parties
MENDOZA, J.: meaning, the plaintiffs and both
corporate defendants;

At bench is a petition for review on certiorari 2. That plaintiffs caused the service of a
under Rule 45 of the Rules of Court assailing the (1) July demand letter on Pearl Bank
on February 13, 2001 marked as
27, 2010 Decision[1] of the Court of Appeals (CA) in CA- Exhibit E;
G.R. CV No. 84725, which affirmed with modification the
3. Plaintiffs do not have personal
September 27, 2004 Decision [2] of the Regional Trial knowledge as to whether or not
Court, Branch 56, Makati City (RTC) in Civil Case No. 01- Pearl Bank indeed borrowed the
funds allegedly invested by the
507; and (2) its October 14, 2010 Resolution, [3] which plaintiff from Wincorp; and
denied the motion for the reconsideration thereof.
4. That the alleged confirmation
THE FACTS: advices which indicate Pearl Bank
On March 27, 2001, respondents Amos P. Francia, Jr., as alleged borrower of the funds
allegedly invested by the plaintiffs
Cecilia Zamora and Benjamin Francia (the Francias) filed a
in Wincorp do not bear the
Complaint for Collection of Sum of Money and
 signature or acknowledgment of
Pearl Bank. (Emphases supplied)
3. On April 13, 2000, they
again tried to get back the principal
After several postponements requested by Wincorp, trial
amount they invested plus interest but,
on the merits finally ensued. The gist of the testimony of
again, they were frustrated.[17]
Amos Francia, Jr. (Amos) is as follows:

4. Constrained, they
1. Sometime in 1999, he was
demanded from Pearlbank[18] their
enticed by Ms. Lalaine Alcaraz, the bank
investments. There were several
manager of Westmont Bank,
attempts to settle the case, but all
Meycauayan, Bulacan Branch, to make
proved futile.
an investment with Wincorp, the banks
financial investment arm, as it was
After the testimony of Amos Francia, Jr., the
offering interest rates that were 3% to
Francias filed their Formal Offer of Evidence. [19] Pearlbank
5% higher than regular bank interest
filed its Comment/Objection,[20] while Wincorp did not
rates. Due to the promise of a good
file any comment or objection. After all the exhibits of
return of investment, he was convinced
the Francias were admitted for the purposes they were
to invest. He even invited his sister,
offered, the Francias rested their case.
Cecilia Zamora and his brother,
Benjamin Francia, to join
Thereafter, the case was set for the presentation
him. Eventually, they placed their
of the defense evidence of Wincorp. On March 7, 2003,
investment in the amounts of
three (3) days before the scheduled hearing, Wincorp
₱1,420,352.72 and ₱2,522,745.34 with
filed a written motion to postpone the hearing on even
Wincorp in consideration of a net
date, as its witness, Antonio T. Ong, was unavailable
interest rate of 11% over a 43-day
because he had to attend a congressional hearing.
spread.Thereafter, Wincorp, through
Wincorps substitute witness, Atty. Nemesio Briones, was
Westmont Bank, issued Official Receipt
likewise unavailable due to a previous commitment in the
Nos. 470844[13] and 470845,[14] both
Securities and Exchange Commission.
dated January 27, 2000, evidencing the
said transactions.[15]
The RTC denied Wincorps Motion to Postpone
and considered it to have waived its right to present
2. When the 43-day placement
evidence.[21] The Motion for Reconsideration of Wincorp
matured, the Francias wanted to retire
was likewise denied.[22]
their investments but they were told
that Wincorp had no funds. Instead,
On August 14, 2003, Pearlbank filed its
Wincorp rolled-over their placements
Demurrer to Evidence.[23] The RTC granted the same in its
and issued Confirmation
Order[24] dated January 12, 2004. Hence, the complaint
Advices [16]
extending their placements
against Pearlbank was dismissed, while the case was
for another 34 days. The said
considered submitted for decision insofar as Wincorp was
confirmation advices indicated the
concerned.
name of the borrower as Pearlbank.
The maturity values were
₱1,435,108.61 and ₱2,548,953.86 with
a due date of April 13, 2000.
On September 27, 2004, the RTC rendered a decision [25] in The CA affirmed with modification the ruling of the RTC in
favor of the Francias and held Wincorp solely liable to its July 27, 2010 Decision, the decretal portion of which
them. The dispositive portion thereof reads: reads:

WHEREFORE, judgment is rendered

WHEREFORE, premises
ordering defendant Westmont
considered, the present Appeal
Investment Corporation to pay the
is DENIED. The Decision dated 27
plaintiffs, the following amounts:
September 2004 of the Regional Trial
Court, Branch 56, Makati City in Civil
1. ₱3,984,062.47
Case No. 01-507 is hereby AFFIRMED
representing the
WITH MODIFICATION of the awards.
aggregate amount of
Defendant-appellant Wincorp is hereby
investment
ordered to pay plaintiffs-appellees the
placements made by
amounts of ₱3,984,062.47 plus 11% per
plaintiffs, plus 11%
annum by way of stipulated interest to
per annum by way of
be computed from 13 April 2000 until
stipulated interest, to
fully paid and ₱100,000.00 as attorneys
be counted from 10
fees and cost of suit.
March 2000 until fully
paid; and
SO ORDERED.
2. 10% of the above-
mentioned amount as
The CA explained:
and for attorneys fees
and costs of suit.
After a careful and judicious scrutiny of
the records of the present case,
SO ORDERED.
together with the applicable laws and
Wincorp then filed a motion for reconsideration, but it jurisprudence, this Court finds
defendant-appellant Wincorp solely
was denied by the RTC in its Order[26] dated November 10,
liable to pay the amount
2004. of ₱3,984,062.47 plus 11% interest per
annum computed from 10 March
2000 to plaintiffs-appellees.
Not in conformity with the pronouncement of the RTC,
Wincorp interposed an appeal with the CA, alleging the
Preliminarily, the Court will rule on the
following arguments: procedural issues raised to know what
pieces of evidence will be considered in
I. THE REGIONAL TRIAL COURT ERRED this appeal.
WHEN IT HELD THAT WINCORP AS
AGENT OF PLAINTIFFS-APPELLEES WAS Section 34, Rule 132 of the Rules on
LIABLE TO THE LATTER Evidence states that:
NOTWITHSTANDING THE CLEAR
WRITTEN AGREEMENT TO THE The court shall consider no evidence
CONTRARY; which has not been formally
offered. The purpose for which the
II. THE REGIONAL TRIAL COURT ALSO evidence is offered must be specified.
ERRED WHEN IT HELD THAT
PEARLBANK, THE ACTUAL BORROWER A formal offer is necessary because
AND RECIPIENT OF THE MONEY judges are mandated to rest their
INVOLVED IS NOT LIABLE TO THE findings of facts and their judgment
PLAINTIFFS-APPELLEES; and only and strictly upon the evidence
offered by the parties at the trial.Its
III. THE REGIONAL TRIAL COURT ERRED function is to enable the trial judge to
IN DISMISSING ALL TOGETHER THE know the purpose or purposes for
CROSS-CLAIM OF WINCORP AGAINST which the proponent is presenting the
PEARLBANK.[27] evidence. On the other hand, this
allows opposing parties to examine the
evidence and object to its admissibility.
Moreover, it facilitates review as the
appellate court will not be required to
review documents not previously
scrutinized by the trial court. Evidence
not formally offered during the trial can
not be used for or against a party
litigant. Neither may it be taken into
account on appeal.
The rule on formal offer of evidence is
not a trivial matter. Failure to make a
formal offer within a considerable
period of time shall be deemed a
waiver to submit it.Consequently, any
evidence that has not been offered
shall be excluded and rejected.
Prescinding therefrom, the very glaring
conclusion is that all the documents
attached in the motion for
reconsideration of the decision of the
trial court and all the documents
attached in the defendant-appellants
brief filed by defendant-appellant
Wincorp cannot be given any probative
weight or credit for the sole reason
that the said documents were not
formally offered as evidence in the
trial court because to consider them at
this stage will deny the other parties
the right to rebut them.
The arguments of defendant-appellant
Wincorp that the plaintiffs-appellees
made an erroneous offer of evidence as
the documents were offered to prove
what is contrary to its content and that
they made a violation of the parol
evidence rule do not hold water.
It is basic in the rule of evidence that
objection to evidence must be made
after the evidence is formally offered.
In case of documentary evidence, offer
is made after all the witnesses of the
party making the offer have testified,
specifying the purpose for which the
evidence is being offered. It is only at
this time, and not at any other, that
objection to the documentary evidence
may be made.
As to oral evidence, objection
thereto must likewise be raised at the
earliest possible time, that is, after the
objectionable question is asked or after
the answer is given if the objectionable
issue becomes apparent only after the
answer was given.
xxx
In the case at bench, a perusal of the
records shows that the plaintiffs-
appellees have sufficiently established
their cause of action by preponderance
of evidence. The fact that on 27 January
2000, plaintiffs-appellees placed their
investment in the amounts
of ₱1,420,352.72 and ₱2,522,754.34
with defendant-appellant Wincorp to
earn a net interest at the rate of 11%
over a 43-day period was distinctly
proved by the testimony of plaintiff-
appellee Amos Francia, Jr. and
supported by Official Receipt Nos.
470844 and 470845 issued by
defendant-appellant Wincorp through
Westmont Bank. The facts that
plaintiffs-appellees failed to get back
their investment after 43 days and that
their investment was rolled over for
another 34 days were also established
by their oral evidence and confirmed by
the Confirmation Advices issued by
defendant-appellant Wincorp, which
indicate that their investment already
amounted to ₱1,435,108.61
and ₱2,548,953.86 upon its maturity
on 13 April 2000. Likewise, the fact that
plaintiffs-appellees investment was not
returned to them until this date by
defendant-appellant Wincorp was
proved by their evidence. To top it all,
defendant-appellant Wincorp never
negated these established facts
because defendant-appellant Wincorps
claim is that it received the money of
plaintiffs-appellees but it merely acted
as an agent of plaintiffs-appellees and
that the actual borrower of plaintiffs-
appellees money is defendant-appellee
PearlBank. Hence, defendant-appellant
Wincorp alleges that it should be the
latter who must be held liable to the
plaintiffs-appellees.
However, the contract of agency and
the fact that defendant-appellee
PearlBank actually received their
money were never proven. The records
are bereft of any showing that
defendant-appellee PearlBank is the
actual borrower of the money invested
by plaintiffs-appellees as defendant-
appellant Wincorp never presented any
evidence to prove the same.
Moreover, the trial court did not err in
dismissing defendant-appellant
Wincorps crossclaim as nothing in the
records supports its claim. And such
was solely due to defendant-appellant
Wincorp because it failed to present
any scintilla of evidence that would
implicate defendant-appellee PearlBank
to the transactions involved in this case.
The fact that the name of defendant-
appellee PearlBank was printed in the
Confirmation Advices as the actual
borrower does not automatically makes
defendant-appellee PearlBank liable to
the plaintiffs-appellees as nothing
 therein shows that defendant-appellee THE LOAN TRANSACTIONS WAS
PearlBank adhered or acknowledged PEARLBANK
that it is the actual borrower of the
amount specified therein.
SUBSTANTIAL JUSTICE DICTATES THAT
THE EVIDENCE PROFERRED BY
Clearly, the plaintiffs-appellees were
WINCORP SHOULD BE CONSIDERED TO
able to establish their cause of action
DETERMINE WHO, AMONG THE
against defendant-appellant Wincorp,
PARTIES, ARE LIABLE TO PLAINTIFFS-
while the latter failed to establish its
RESPONDENTS[30]
cause of action against defendant-
appellee PearlBank.
ISSUE
Hence, in view of all the foregoing, the
Court finds defendant-appellant The core issue in this case is whether or not the
Wincorp solely liable to pay the amount
of ₱3,984,062.47 representing the CA is correct in finding Wincorp solely liable to pay the
matured value of the plaintiffs- Francias the amount of ₱3,984,062.47 plus interest of
appellees investment as of 13 April
2000 plus 11% interest per annum by 11% per annum.
way of stipulated interest counted from
maturity date (13 April 2000).
Quite clearly, the case at bench presents a
As to the award of attorneys fees, this
Court finds that the undeniable source factual issue.
of the present controversy is the failure
As a rule, a petition for review under Rule 45 of the Rules
of defendant-appellant Wincorp to
return the principal amount and the of Court covers only questions of law. Questions of fact
interest of the investment money of
plaintiffs-appellees, thus, the latter was are not reviewable and cannot be passed upon by this
forced to engage the services of their
counsel to protect their right. It is Court in the exercise of its power to review. The
elementary that when attorneys fees is distinction between questions of law and questions of
awarded, they are so adjudicated,
because it is in the nature of actual fact is established. A question of law exists when the
damages suffered by the party to
whom it is awarded, as he was doubt or difference centers on what the law is on a
constrained to engage the services of a
certain state of facts. A question of fact, on the other
counsel to represent him for the
protection of his interest. Thus, hand, exists if the doubt centers on the truth or falsity of
although the award of attorneys fees to
plaintiffs-appellees was warranted by the alleged facts.[31] This being so, the findings of fact of
the circumstances obtained in this case,
this Court finds it equitable to reduce the CA are final and conclusive and this Court will not
the same from 10% of the total award review them on appeal.
to a fixed amount of ₱100,000.00.[28]

While it goes without saying that only questions

Wincorps Motion for Reconsideration was
of law can be raised in a petition for review on certiorari
likewise denied by the CA in its October 14,
under Rule 45, the same admits of exceptions,
2010 Resolution.[29]
namely: (1) when the findings are grounded entirely on
speculations, surmises, or conjectures; (2) when the
Not in conformity, Wincorp seeks relief with this
inference made is manifestly mistaken, absurd, or
Court via this petition for review alleging that −
impossible; (3) when there is a grave abuse of discretion;
(4) when the judgment is based on misappreciation of
PLAINTIFFS-RESPONDENTS
facts; (5) when the findings of fact are conflicting; (6)
HAVE NO CAUSE OF ACTION AGAINST
WINCORP AS THE EVIDENCE ON when in making its findings, the same are contrary to the
RECORD SHOWS THAT THE ACTUAL
admissions of both appellant and appellee; (7) when the
BENEFICIARY OF THE PROCEEDS OF
findings are contrary to those of the trial court; (8) when
the findings are conclusions without citation of specific
evidence on which they are based; (9) when the facts set
forth in the petition as well as in the petitioners main and
reply briefs are not disputed by the respondent; and
(10) when the findings of fact are premised on the
supposed absence of evidence and contradicted by the
evidence on record.[32]
The Court finds that no cogent reason exists in
this case to deviate from the general rule.
Wincorp insists that the CA should have based its
decision on the express terms, stipulations, and
agreements provided for in the documents offered by the
Francias as the legal relationship of the parties was
clearly spelled out in the very documents introduced by
them which indicated that it merely brokered the loan
transaction between the Francias and Pearlbank.[33]
Wincorp would want the Court to rule that there
was a contract of agency between it and the Francias
with the latter authorizing the former as their agent to
lend money to Pearlbank. According to Wincorp, the two
Confirmation Advices presented as evidence by the
Francias and admitted by the court, were competent
proof that the recipient of the loan proceeds was
Pearlbank.[34]
The Court is not persuaded.
In a contract of agency, a person binds himself to render
some service or to do something in representation or on
behalf of another with the latters consent.[35] It is said
that the underlying principle of the contract of agency is
to accomplish results by using the services of others to
do a great variety of things. Its aim is to extend the
personality of the principal or the party for whom
another acts and from whom he or she derives the
authority to act. Its basis is representation. [36]
Significantly, the elements of the contract of agency are:
(1) consent, express or implied, of the parties to establish
the relationship; (2) the object is the execution of a
juridical act in relation to a third person; (3) the agent
acts as a representative and not for himself; (4) the agent
acts within the scope of his authority.[37]
In this case, the principal-agent relationship between the
Francias and Wincorp was not duly established by
evidence. The records are bereft of any showing that
Wincorp merely brokered the loan transactions between
the Francias and Pearlbank and the latter was the actual
recipient of the money invested by the former. Pearlbank
did not authorize Wincorp to borrow money for
it. Neither was there a ratification, expressly or impliedly,
that it had authorized or consented to said transaction.
As to Pearlbank, records bear out that the Francias
anchor their cause of action against it merely on the
strength of the subject Confirmation Advices bearing the
name PearlBank as the supposed borrower of their
investments. Apparently, the Francias ran after Pearlbank
only after learning that Wincorp was reportedly
bankrupt.[38] The Francias were consistent in saying that
they only dealt with Wincorp and not with Pearlbank. It
bears noting that even in their Complaint and during the
pre-trial conference, the Francias alleged that they did
not have any personal knowledge if Pearlbank was
indeed the recipient/beneficiary of their investments.
Although the subject Confirmation Advices indicate the
name of Pearlbank as the purported borrower of the said
investments, said documents do not bear the signature
or acknowledgment of Pearlbank or any of its officers.
This cannot prove the position of Wincorp that it was
Pearlbank which received and benefited from the
investments made by the Francias. There was not even a
promissory note validly and duly executed by Pearlbank
which would in any way serve as evidence of the said
borrowing.
 All told, the CA committed no reversible error in

Another significant point which would support the stand rendering the assailed July 27, 2010 Decision and in

of Pearlbank that it was not the borrower of whatever issuing the challenged October 14, 2010 Resolution.

funds supposedly invested by the Francias was the fact WHEREFORE, the petition is DENIED.

that it initiated, filed and pursued several cases against

Wincorp, questioning, among others, the latters acts of SO ORDERED.

naming it as borrower of funds from investors.[39]

JOSE CATRAL MENDOZA

It bears stressing too that all the documents attached by Associate Justice

Wincorp to its pleadings before the CA cannot be given

any weight or evidentiary value for the sole reason that,

as correctly observed by the CA, these documents

were not formally offered as evidence in the trial court.

To consider them now would deny the other parties the

right to examine and rebut them. Section 34, Rule 132 of

the Rules of Court provides:

Section 34. Offer of evidence The court

shall consider no evidence which has
not been formally offered. The purpose
for which the evidence is offered must
be specified.

The offer of evidence is necessary because it is

the duty of the court to rest its findings of fact and its

judgment only and strictly upon the evidence offered by

the parties. Unless and until admitted by the court in

evidence for the purpose or purposes for which such

document is offered, the same is merely a scrap of paper

barren of probative weight.[40]

The Court cannot, likewise, disturb the findings

of the RTC and the CA as to the evidence presented by

the Francias. It is elementary that objection to evidence

must be made after evidence is formally offered. [41] It

appears that Wincorp was given ample opportunity to file

its Comment/Objection to the formal offer of evidence of G.R. No. 192024

the Francias but it chose not to file any.
FORTUNE TOBACCO CORPORATION, Petitioner,
vs.
COMMISSIONER OF INTERNAL REVENUE, Respondent.
 DECISION
MENDOZA, J.:
This is a petition for review on certiorari under Rule 45 of
the Rules of Court filed by Fortune Tobacco
Corporation (petitioner), assailing the March 12, 2010
Decision1 of the Court of Tax Appeals En Banc (CTA En
Banc) and its April 26, 2010 Resolution2 in CTA EB Case
No. 533, which affirmed in toto the April 30, 2009
Decision3 and the August 18, 2009 Resolution4 of the
Former First Division of the Court of Tax Appeals (CTA
Division) in CTA Case No. 7367.
The facts of this case are akin to those obtaining in G.R.
Nos. 167274-275 and G.R. No. 180006. In G.R. No.
167274-275, the Court eventually sustained petitioner’s
claim for refund of overpaid excise taxes for the period
covering January 1, 2002 to December 31, 2002. In G.R.
No. 180006, the Court likewise sustained petitioner’s
claim for refund of overpaid excise tax paid during in
2003 and the period covering January 1 to May 31, 2004.
The subject claim for refund involves the amount of
excise taxes allegedly overpaid during the period
beginning June 1, 2004 up to December 31, 2004. For a
better understanding of the controversy, a recapitulation
of the factual and procedural antecedents is in order.
Thus, as stated in the following portions of the CTA En
Banc decision:
Petitioner is the manufacturer/producer of, among
others, the following cigarette brands, with tax rate
classification based on net retail price prescribed by
Annex "D" to Republic Act (R.A.) No. 4280, to wit:
Brand Tax Rate
Champion M 100 P 1.00
Camel F King P 1.00
Camel Lights Box
P 1.00
20's
Camel Filters Box
P 1.00
20's
Winston F King P 5.00
Winston Lights P 5.00
Immediately prior to January 1, 1997, the above-
mentioned cigarette brands were subject to ad valorem
tax pursuant to then Section 142 of the Tax Code of 1977,
as amended. However, on January 1, 1997, R.A. No. 8240
took effect causing a shift from the ad valorem tax (AVT)
system to the specific tax system. As a result of such shift,
the aforesaid cigarette brands were subjected to specific
tax under Section 142 thereof, now renumbered as
Section 145 of the Tax Code of 1997. Section 145 is
quoted thus:
'Section 145. Cigars and Cigarettes- (A) Cigars. – There
shall be levied, assessed and collected on cigars a tax of
One peso (P 1.00) per cigar.
(B) Cigarettes Packed by Hand. -There shall be levied,
assessed and collected on cigarettes packed by hand a tax
of Forty centavos (P0.40) per pack.
(C) Cigarettes Packed by Machine. - There shall be levied,
assessed and collected on cigarettes packed by machine a
tax at the rates prescribed below:
[1] If the net retail price (excluding the excise tax
and the value-added tax) is above Ten pesos (P
10.00) per pack, the tax shall be Twelve (P12.00)
per pack:
[2] If the net retail price (excluding the excise tax
and the value added tax) exceeds Six pesos and
Fifty centavos (P6.50) but does not exceed Ten
pesos (P10.00) per pack, the tax shall be Eight
Pesos (P8.00) per pack.
[3] If the net retail price (excluding the excise tax
and the value-added tax) is Five pesos (P5.00)
but does not exceed Six Pesos and fifty centavos
(P6.50) per pack, the tax shall be Five pesos
(P5.00) per pack;
[4] If the net retail price (excluding the excise tax
and the value-added tax] is below Five pesos
(P5.00) per pack, the tax shall be One peso
(P1.00) per pack;
Variants of existing brands of cigarettes which are
introduced in the domestic market after the effectivity of
R.A. No. 8240 shall be taxed under the highest
classification of any variant of that brand.
The excise tax from any brand of cigarettes within the
next three (3) years from the effectivity of R.A. No. 8240
shall not be lower than the tax, which is due from each
brand on October 1, 1996. Provided, however, that in
cases where the excise tax rate imposed in paragraphs
(1), (2), (3) and (4) hereinabove will result in an increase
in excise tax of more than seventy percent (70%), for a
brand of cigarette, the increase shall take effect in two
tranches: fifty percent (50%) of the increase shall be
effective in 1997 and one hundred percent (100%) of the
increase shall be effective in 1998.
Duly registered or existing brands of cigarettes or new
brands thereof packed by machine shall only be packed in
twenties.
The rates of excise tax on cigars and cigarettes under
paragraphs (1), (2), (3) and (4) hereof, shall be increased
by twelve percent (12%) on January 1, 2000.
New brands shall be classified according to their current
net retail price.
For the above purpose, 'net retail price' shall mean the
price at which the cigarette is sold on retail in twenty (20)
major supermarkets in Metro Manila (for brands of
cigarettes marketed nationally), excluding the amount
intended to cover the applicable excise tax and value-
added tax. For brands which are marketed only outside
Metro Manila, the 'net retail price' shall mean the price at
which the cigarette is sold in five (5) major supermarkets
in the region excluding the amount intended to cover the
applicable excise tax and the value-added tax.
The classification of each brand of cigarettes based on its
average net retail price as of October 1, 1996, as set forth
in Annex "D," shall remain in force until revised by
Congress.
'Variant of a brand' shall refer to a brand on which a
modifier is prefixed and/or suffixed to the root name of
the brand and/or a different brand which carries the
same logo or design of the existing brand.
To implement the provisions for a twelve percent (12%)
increase of excise tax on cigars and cigarettes packed by
machines by January 1, 2000, the Secretary of Finance,
upon recommendation of the respondent Commissioner
of Internal Revenue, issued Revenue Regulations No. 17-
99, dated December 16, 1999, xxx RR No. 17-99 likewise
provides in the last paragraph of Section 1 thereof, "that
the new specific tax rate for any existing brand of cigars,
cigarettes packed by machine, distilled spirits, wines and
fermented liquor shall not be lower than the excise tax
that is actually being paid prior to January 1, 2000."
On 31 March 2005, petitioner filed a claim for tax credit
or refund under Section 229 of the National Internal
Revenue Code of 1997 (1997 NIRC) for erroneously or
illegally collected specific taxes covering the period June
to December 31, 2004 in the total amount of
Php219,566,450.00.
On November 14, 2005, petitioner filed a Petition for
Review which was raffled to the Former First Division of
this Court. Respondent in his Answer raised among
others, as a Special and Affirmative Defense, that the
amount of TWO HUNDRED NINETEEN MILLION FIVE
HUNDRED SIXTY SIX THOUSAND FOUR HUNDRED FIFTY
PESOS (Php219,566,450.00) being claimed by petitioner
as alleged overpaid excise tax for the period covering 1
June to 31 December 2004, is not properly documented.
After trial on the merits, the Former First Division of this
Court rendered the assailed Decision, dated April 30,
2009, which consistently ruled that RR 17-99 is contrary
to law and that there is insufficiency of evidence on the
claim for refund.
Petitioner filed its motion for reconsideration therefrom,
and which was denied by the Former First Division on
August 18, 2009. Petitioner elevated its claim to the
CTA En Banc, but was rebuffed after the tax tribunal
found no cause to reverse the findings and conclusions of
the CTA Division.
Hence, this petition.
Essentially, petitioner claims that it paid a total amount of
P219,566,450.00 in overpaid excise taxes. For petitioner,
considering that the CTA found Revenue Regulation No.
17-99 (RR 17-99) to be contrary to law, there should be
no obstacle to the refund of the total amount excess
excise taxes it had paid.5
In a nutshell, the sole issue for the resolution of the Court
is: whether or not there is sufficient evidence to warrant
the grant of petitioner’s claim for tax refund.
The petition lacks merit.
The question of sufficiency of
petitioner’s evidence to support
its claim for tax refund is a
question of fact
Unlike in the proceeding had in G.R. Nos. 167274-275
and G.R. No. 180006, the denial of petitioner’s claim for
tax refund in this case is based on the ground that
petitioner failed to provide sufficient evidence to prove
its claim and the amount thereof. As a result, petitioner
seeks that the Court re-examine the probative value of its
evidence and determine whether it should be refunded
the amount of excise taxes it allegedly overpaid.
This cannot be done.
The settled rule is that only questions of law may be
raised in a petition under Rule 45 of the Rules of Court. It
is not this Court’s function to analyze or weigh all over
again the evidence already considered in the proceedings
below, the Court’s jurisdiction being limited to reviewing
only errors of law that may have been committed by the
lower court. The resolution of factual issues is the
function of the lower courts, whose findings on these
matters are received with respect. A question of law
which the Court may pass upon must not involve an
examination of the probative value of the evidence
presented by the litigants.6 This is in accordance with
Section 1, Rule 45 of the Rules of Court, as amended,
which reads:
Section 1. Filing of petition with Supreme Court. – A
party desiring to appeal by certiorari from a judgment,
final order or resolution of the Court of Appeals, the
Sandiganbayan, the Court of Tax Appeals, the Regional
Trial Court or other courts, whenever authorized by law,
may file with the Supreme Court a verified petition for
review on certiorari. The petition may include an
application for a writ of preliminary injunction or other
provisional remedies and shall raise only questions of
law, which must be distinctly set forth. The petitioner
may seek the same provisional remedies by verified
motion filed in the same action or proceeding at any time
during its pendency.
[Emphasis and Underlining Supplied]
In fact, the rule finds greater significance with respect to
the findings of specialized courts such as the CTA, the
conclusions of which are not lightly set aside because of
the very nature of its functions which is dedicated
exclusively to the resolution of tax problems and has
accordingly developed an expertise on the subject, unless
there has been an abuse or improvident exercise of
authority.7
Moreover, it has been said that the proper interpretation
of the provisions on tax refund that does not call for an
examination of the probative value of the evidence
presented by the parties-litigants is a question of
law.8Conversely, it may be said that if the appeal
essentially calls for the re-examination of the probative
value of the evidence presented by the appellant, the
same raises a question of fact. Often repeated is the
distinction that there is a question of law in a given case
when doubt or difference arises as to what the law is on a
certain state of facts; there is a question of fact when
doubt or difference arises as to the truth or falsehood of
alleged facts.9
Verily, the sufficiency of a claimant’s evidence and the
determination of the amount of refund, as called for in
this case, are questions of fact,10 which are for the
judicious determination by the CTA of the evidence on
record.
Significantly, it bears noting that Section 5, Rule 45 of the
Rules of Court provides that the failure of petitioner to
comply with the requirements on the contents of the
petition shall be sufficient ground for its dismissal. While
jurisprudence provides exceptions to these rules, the
subject petition does not fall under any of those so
excepted. Thus, for this reason alone, the petition must
fail.
The CTA committed no
reversible error in denying
petitioner’s claim for tax refund
for insufficient evidence.
A. Petitioner relied heavily on photocopied documents
to prove its claim.
Granting that the Court could take a second look and
review petitioner’s evidence, the result would be the
same.
The claim for refund hinges on the admissibility and the
probative value of the following photocopied documents
that allegedly contain a recording of petitioner’s excise
payments for the period covering June 1, 2004 up to
December 31, 2004:
(1) Production, Removals and Payments for All
FTC Brands;11 and
(2) Excise Tax Refund Computation Summary.12
Although both the CTA Division and the CTA En
Banc provisionally admitted petitioner’s Exhibit "C," 13 the
above-mentioned documents, as well as the other
documentary evidence submitted by petitioner were
refused admission for being merely photocopies.14
Section 3 of Administrative Matter (A.M.) No. 05-11-07
CTA, the Revised Rules of the Court of Tax Appeals,
provides that the Rules of Court shall apply suppletorily
in the proceeding before the tax tribunal.
In this connection, Section 3 of Rule 130 of the Rules of
Court lays down the Best Evidence Rule with respect to
the presentation of documentary evidence. Thus:
Section 3. Original document must be
produced; exceptions. — When the subject of inquiry is
the contents of a document, no evidence shall be
admissible other than the original document itself, except
in the following cases:
(a) When the original has been lost or
destroyed, or cannot be produced in court,
without bad faith on the part of the offeror;
(b) When the original is in the custody or under
the control of the party against whom the
evidence is offered, and the latter fails to
produce it after reasonable notice;
(c) When the original consists of numerous
accounts or other documents which cannot be
examined in court without great loss of time and
the fact sought to be established from them is
only the general result of the whole; and
(d) When the original is a public record in the
custody of a public officer or is recorded in a
public office. (2a)
In this case, petitioner did not even attempt to provide a
plausible reason as to why the original copies of the
documents presented could not be produced before the
CTA or any reason that the application of any of the
foregoing exceptions could be justified. Although
petitioner presented one (1) witness to prove its claim, it
appears that this witness was not even a signatory to any
of the disputed documentary evidence.
As correctly pointed out by the CTA Division, petitioner
knew all along that it had committed the foregoing
procedural lapses when it filed its Formal Offer of
Evidence. Although petitioner orally manifested that it
was going to seek reconsideration of the CTA Division
order excluding its evidence, in the end, petitioner did
not even bother to file any such motion for
reconsideration at all.
B. Petitioner failed to offer any proof or tender of
excluded evidence.
At any rate, even if the Court should find fault in the
ruling of the CTA Division in denying the admission of
petitioner’s evidence, the result would be the same
because petitioner failed to offer any proof or tender of
excluded evidence. As aptly discussed by the CTA En
Banc:
Petitioner posits that if their exhibits, specifically Exhibits
"G", "G-1" to "G-7" and Exhibit "H", are admitted
together with the testimony of their witness, the same
would sufficiently prove their claim. A closer scrutiny of
the records shows that petitioner did not file any offer of
proof or tender of excluded evidence.
Section 40, Rule 132 of the Rules of Court provides:
Sec. 40. Tender of excluded evidence. – If documents or
things offered in evidence are excluded by the court, the
offeror may have the same attached to or made part of
the record. If the evidence excluded is oral, the offeror
may state for the record the name and other personal
circumstances of the witness and the substance of the
proposed testimony.
The rule is that evidence formally offered by a party may
be admitted or excluded by the court. If a party's offered
documentary or object evidence is excluded, he may
move or request that it be attached to form part of the
records of the case. If the excluded evidence is oral, he
may state for the record the name and other personal
circumstances of the witness and the substance of the
proposed testimony. These procedures are known as
offer of proof or tender of excluded evidence and are
made for purposes of appeal. If an adverse judgment is
eventually rendered against the offeror, he may in his
appeal assign as error the rejection of the excluded
evidence.
It is of record that the denial of the excluded evidence
was never assigned as an error in this appeal. Thus, this
Court cannot pass upon nor consider the propriety of
their denial. Moreover, this Court cannot and should not
consider the documentary and oral evidence presented
which are not considered to be part of the records in the
first place. Thus, Exhibits "G", "G- 1" to "G-7" and Exhibit
"H", together with the testimony of petitioner's witness
thereon, cannot be admitted and be given probative
value.15
It has been repeatedly ruled that where documentary
evidence was rejected by the lower court and the offeror
did not move that the same be attached to the record,
the same cannot be considered by the appellate
court,16 as documents forming no part of proofs before
the appellate court cannot be considered in disposing the
case.17 For the appellate court to consider as evidence,
which was not offered by one party at all during the
proceedings below, would infringe the constitutional
right of the adverse party – in this case, the CIR, to due
process of law.
It also bears pointing out that at no point during the
proceedings before the CTA En Banc and before this
Court has petitioner offered any plausible explanation as
to why it failed to properly make an offer of proof or
tender of excluded evidence. Instead, petitioner harps on
the fact that respondent CIR simply refused its claim for
refund on the ground that RR 17-99 was a valid issuance.
Thus, for its failure to seasonably avail of the proper
remedy provided under Section 40, Rule 132 of the Rules
of Court, petitioner is precluded from doing so at this late
stage of the case. Clearly, estoppel has already stepped
in.
Although it may be suggested that the CTA should have
been more liberal in the application of technical rules of
evidence, it should be stressed that a liberal application,
or suspension of the application of procedural rules, must
remain as the exception to the well-settled principle that
rules must be complied with for the orderly
administration of justice. As pointed out in Marohomsalic
v. Cole,18
While procedural rules may be relaxed in the interest of
justice, it is well-settled that these are tools designed to
facilitate the adjudication of cases. The relaxation of
procedural rules in the interest of justice was never
intended to be a license for erring litigants to violate the
rules with impunity. Liberality in the interpretation and
application of the rules can be invoked only in proper
cases and under justifiable causes and circumstances.
While litigation is not a game of technicalities, every case
must be prosecuted in accordance with the prescribed
procedure to ensure an orderly and speedy
administration of justice.19
[Emphases Supplied]
And, as stressed in the case of Daikoku Electronics Phils.,
Inc. v. Raza:20
To be sure, the relaxation of procedural rules cannot be
made without any valid reasons proffered for or
underpinning it. To merit liberality, petitioner must show
reasonable cause justifying its noncompliance with the
rules and must convince the Court that the outright
dismissal of the petition would defeat the administration
of substantive justice. x x x The desired leniency cannot
be accorded absent valid and compelling reasons for such
a procedural lapse. x x x
We must stress that the bare invocation of "the interest
of substantial justice" line is not some magic wand that
will automatically compel this Court to suspend
procedural rules. Procedural rules are not to be belittled,
let alone dismissed simply because their non-observance
may have resulted in prejudice to a party’s substantial
rights. Utter disregard of the rules cannot be justly
rationalized by harping on the policy of liberal
construction.21
[Emphases Supplied]
In this case, as explained above, petitioner utterly failed
to not only comply with the basic procedural
requirement of presenting only the original copies of its
documentary evidence, but also to adhere to the
requirement to properly make its offer of proof or tender
of excluded evidence for the proper consideration of the
appellate tribunal.
Indeed, to apply technical rules strictly against the CIR
because it simply relied on the validity of RR 17-99 – but
not be strict with respect to petitioner’s shortcomings,
would be unfair. For this would go against the principle
that taxation is the rule, exemption/refund, the
exception.
C. Petitioner’s evidence, even if considered, fails to
prove that it is entitled to its claim for refund.
burden of justifying the exemption by words too plain to
be mistaken and too categorical to be misinterpreted; it is
never presumed nor be allowed solely on the ground of
equity.23 In addition, one who claims that he is entitled to
a tax refund must not only claim that the transaction
subject of tax is clearly and unequivocally not subject to
tax - the amount of the claim must still be proven in the
normal course,24 in accordance with the prescribed rules
on evidence.

Finally, as correctly held by the CTA En Banc, even if the After all, taxes are the lifeblood of the nation.25
Court would consider petitioner’s otherwise excluded
evidence, the same would still fail to sufficiently prove WHEREFORE, the petition is DENIED.
the petitioner’s entitlement to its claim for refund. The
disquisition of the CTA Division, as quoted in the CTA En SO ORDERED.
Banc decision, is hereby reiterated with approval:
JOSE CATRAL MENDOZA
xxx, the documentary exhibits are not sufficient to prove Associate Justice
the amounts being claimed by petitioner as refund.
Looking at Exhibit ‘G,’ the same is a mere summary of
excise taxes paid by petitioner for ALL of its cigarette
brands. This Court cannot verify the amounts of excise
taxes paid for the brands in issue which are Champion M-
100s, Camel Filter Kings, Winston Filter Kings, and
Winston Lights.

This Court cannot likewise rely solely on petitioner's

Excise Tax Refund Computation Summary. The figures
therein must be verified through other documentary
evidence which this Court must look into and which
petitioner failed to properly provide.22 [Emphases
Supplied]

Clearly, it is petitioner’s burden to prove the allegations

made in its claim for refund. For a claim for refund to be
granted, the manner in proving it must be in accordance
with the prescribed rules of evidence. It would have been
erroneous had the CTA En Banc relied on petitioner's own
Excise Tax Refund Computation Summary or the
unsatisfactory explanation of its lone witness to justify its
claim for tax refund.

Indeed, while it is true that litigation is not a game of

technicalities – it is equally true, however, that every case
must be established in accordance with the prescribed
procedure to ensure an orderly and speedy
administration of justice. In all, the Court finds that the
failure of petitioner to prove its claim in accordance with
the settled evidentiary rules merits its dismissal.

Lest it be misunderstood, this Court is not reversing,

directly or indirectly, its pronouncements in G.R. Nos.
167274-75 and G.R. No. 180006 that RR 17-99 is
invalid.1âwphi1 This Court is simply pointing to the rule
that claims for refunds are the exception, rather than the
rule, and that each claim for refund, in order to be
granted, must be clearly set forth and established in
accordance with the rules of evidence.

As it has been said, time and again, that claims for tax
refunds are in the nature of tax exemptions which result
in loss of revenue for the government. Upon the person
claiming an exemption from tax payments rests the