Cross Examination - For Merge.docx

CROSS EXAMINATION ORTIGAS V. LUFTHANSA BARREDO, J. PERINENT ISSUE Trials may be postponed because of the absence of evidence only when such absence is justified. Mere absence is not a justification in itself. Section 4 of Rule 22 is sufficiently clear on this point. It provides that "A motion to postpone a trial on the ground of absence of evidence can be granted only upon affidavit showing the materiality of evidence expected to be obtained, and that due diligence has been used to procure it." This means that it must be shown to the court that due diligence had been exercised in either securing the presence of the evidence (witnesses) or preventing the absence thereof. There is, of course, defendant's motion for reconsideration of October 19, 1966 praying for the setting aside of the court's order of denial as well as the other order striking out the testimony of witness Lazzari. But, as already noted, the only excuse given in said motion is that: "...The witnesses in question could not come because of certain circumstances that rendered their coming over virtually impossible. Both witnesses, Ivo Lazzari and Saverino Casilli are employees of defendant company at the Rome office. The air traffic in Rome has been particularly heavy this season. Some of the personnel of the Lufthansa Rome office were on leave and these two employees had to assume some of the duties of those employees who were on leave, aside from performing their own regular duties. If they were to leave their posts to come for the hearing on September 28, there would be grave disruption to the public service and for, this reason they were not able to come. . ." (Page 47, Rec. on Ap., p. 32, Record.) Indeed, even if such reason were given earlier on September 24, 1966, the court would have been as well justified in denying the requested postponement. We cannot see any reason why, despite its having knowledge of the date of the hearing about a month before, defendant did not see to it that its expected witnesses were not assigned to do duty on the day they were supposed to appear in court. We cannot believe Lufthansa could be so undermanned that such a simple adjustment of its personnel had to be "impossible." Moreover, the Rome based witnesses were not the only possible witnesses of defendant. To begin with, Mr. C.H. Dehio, the IATA Agency Manager, Far East and Australasia, Lufthansa German Air Lines, who, according to the record, had already attended previous hearings as a prospective witness could have been made to go to court. There is nothing in the record to show that he was also rendered incapable of doing so. Then, there could still be local witnesses. It is no excuse that presenting other witnesses would have disrupted the presentation of defendant's case, for parties may be allowed to maintain their own way of presenting their evidence only where this can be done without injury to the expeditious disposition of the case arid the best interests of the administration of justice. Coming now to the second assigned error regarding the striking out of the unfinished testimony of Lazzari, the Court is also of the opinion and so holds that the trial court's action cannot be categorized as arbitrary or oppressive or as amounting to a grave abuse of discretion. To be sure, this second order was but a logical consequence of the previous order denying defendant's motion for postponement. With such denial, the next thing in order was to declare the presentation of evidence of the defendant terminated. Accordingly, it was necessary to determine what evidence could be considered to be for the defendant. And so when counsel for plaintiff asked the court to strike out the testimony so far given by Lazzari, there was practically no alternative for the court but to grant the same. Indeed, defendant's counsel could not and did not offer any objection thereto. Oral testimony may be taken into account only when it is complete, that is, if the witness has been wholly cross-examined by the adverse party or the right to cross-examine is lost wholly or in part thru the fault of such adverse party. But when cross-examination is not and cannot be done or completed due to causes attributable to the party offering the witness, the uncompleted testimony is thereby rendered incompetent. The right of a party to cross-examine the witnesses of his adversary is invaluable as it is inviolable in civil cases, no less than the right of the accused in criminal cases. The express recognition of such right of the accused in the Constitution does not render the right thereto of parties in civil cases less constitutionally based, for it is an indispensable part of the due process guaranteed by the fundamental law. Subject to appropriate supervision by the judge in order to avoid unnecessary delays on account of its being unduly

protracted and to needed injunctions protective of the right of the witness against self-incrimination and oppressive and unwarranted harassment and embarrassment, a party is absolutely entitled to a full crossexamination as prescribed in Section 8 of Rule 132 thus: "Upon the termination of the direct examination, the witness may be cross-examined by the adverse party as to any matters stated in the direct examination, or connected therewith, with sufficient fullness and freedom to test his accuracy and truthfulness and freedom from interest or bias, or the reverse, and to elicit all important facts bearing upon the issue." Until such crossexamination has been finished, the testimony of the witness cannot be considered as complete and may not, therefore, be allowed to form part of the evidence to be considered by the court in deciding the case. In the case at bar, however, We have opted but to rely exclusively on the foregoing considerations. In order to satisfy Ourselves as to whether or not defendant stands to be irreparably prejudiced by the impugned action of the trial court relative to the testimony of Lazzari, We have just the same gone over the transcript thereof. After considering the same, however, We are of the impression that even his direct testimony, without taking into account anymore his answers to the cross-examination questions of counsel for plaintiff, cannot be of much weight in establishing the defenses in defendant's answer. But it would seem more appropriate to elaborate on this point when We come to the discussion of the mutual accusation of the parties that the trial court erred in the portion of its decision awarding damages to plaintiff. CASE 1. Direct appeals of both parties plaintiff, Francisco Ortigas, and defendant Lufthansa German Airlines, from the decision of the Court of First Instance of Manila, Branch X, "condemning the defendant to pay the plaintiff the amount of P100,000 as moral damages, P30,000 as exemplary or corrective damages, with interest on both sums at the legal rate from the commencement of this suit until fully paid, P20,000 as attorney's fees and the costs" for the former's failure to "comply with its obligation to give first class accommodation to (the latter) a (Filipino) passenger holding a first class ticket," aggravated by the giving of the space instead to a Belgian and the improper conduct of its agents in dealing with him during the occasion of such discriminatory violation of its contract of carriage. 2. Plaintiff’s sole ground for his appeal is that "the trial court erred in ordering Lufthansa to pay Ortigas only P100,000 as moral damages, P30,000 as exemplary or corrective damages, and P20,000 as attorney's fees." (Plaintiff-Appellant's Brief, p.a.) Thus, apart from the contention of defendant that it has been denied its full day in court, the only issue raised by both appellants relate to the amount of the damages awarded by the trial court, plaintiff claiming it is less than he is entitled to and the defendant insisting on the opposite. 3. Lufthansa maintains it has not had its full day in court because the trial court abruptly ended the trial by denying its last motion for postponement notwithstanding it was well founded and forthwith ordering the striking out of the testimony of its absent witness whose cross-examination had not been finished and then declaring the case submitted for decision (kept filing motions for postponement) 4. At the time this incident of postponement arose, plaintiff had already closed his evidence, and so it was the turn of the defendant to prove its defenses. The starting date for this was April 19, 1966, but, upon motion of defendant's counsel, it was deferred to the next day, April 20, 1966, on which date defendant's first witness, Ivo Lazzari, took the witness stand. His testimony, however, was not finished in the morning and afternoon of that day nor during the whole day of April 22, 1966. Atty. Rodegelio M. Jalandoni was still cross-examining him when the hearing was continued "to the first available date in the calendar". Eventually, the next continuation of the trial was set at first for July 5, 6 and 7, 1966, but upon motion of plaintiffs counsel, it was reset for August 25, 1966, on which date, in spite of the presence of Lazzari who came from Rome purposely for the trial together with another expected witness, Severino Caselli, and still another witness, C.H. Dehio, who came from Hongkong, no trial could be held because of the absence of the judge. Hence, another date, September 28, 1966 was fixed with notice to the parties received by them respectively the month previous. 5. On September 24, 1966, defendant's counsel filed a motion for postponement  DENIED a. On the day set for the hearing, September 28, 1966, Atty. Zaida Ruby S. Alberto appeared for defendant and verbally moved for reconsideration of the foregoing order of denial. b. But as counsel could not give the exact reason why defendant's witness scheduled to testify were absent, the trial court denied the motion; ruling that "no ground has been alleged in support thereof". i. IVO LAZZARI’S TESTIMONY WAS EVENTUALLY STRICKEN OFF THE RECORD UPON MOTON BY PLAINTIFF 6. Thus the trial ended and parties were allowed to submit their respective memoranda. 7. Defendant filed an MR denied 8. Hence, this appeal HEARING: SET FOR 24 TIMES (APRIL 1964-SEPTEMBER 1966)

POSTPONEMENTS AT INSTANCE OF PLAINTIFF 1. THREE settings were cancelled upon motion of plaintiff on grounds that defendant's counsel (Atty. Crispin Baizas) himself must have found sufficient, for he gave his conformity thereto. 1.1. July 9, 1964 — postponed upon plaintiff's motion, dated June 27, 1964, or 12 days before the hearing, on the ground that he had to attend an important business matter in Mindanao, which was so urgent that 'for plaintiff to even make a flying trip to Manila for the scheduled hearing might jeopardize and render to naught a project to which plaintiff has already expended considerable time, money and effort’ 1.2. August 26, 1965 — postponed upon plaintiffs motion, dated August 23, 1965, for the reason that he was in London for business reasons and could not return to the Philippines on time for the hearing. This motion is not reproduced in any Record on Appeal but is admitted. 1.3. July 5-7, 1966 — 18 days before the dates set for the hearing, counsel for plaintiff filed a motion, dated June 17, 1966, for postponement on the ground that Atty. Rodegelio M. Jalandoni, who had been personally handling this case was then in Washington, D.C. on business and would not be back until the middle part of August, 1966. POSTPONEMENT AT INSTANCE OF BOTH PLAINTIFF AND DEFENDANT 1. FOUR settings, or those of August 20, 1964, October 1, 1964, November 11, 1964 and December 22, 1964, were cancelled upon the joint motion of the parties on the ground that negotiations for the possible settlement of this case were pending (RA — pp. 31-34). 2. While both attorneys for plaintiff and defendant signed the joint motions for postponement, the initiative to have the hearings cancelled actually came from defendant's counsel who claimed that he needed time to consult with his client. 3. Plaintiff welcomed the possibility of compromise and acceded to join the requests for postponement but became impatient at and suspicious of the attempt to delay so that in the motion to postpone the December 22, 1964 hearing, plaintiff insisted on the insertion of the phrase ‘be postponed for the last time’ POSTPONEMENT AT INSTANCE OF DEFENDANT 1. Of the remaining 16 settings, at least TEN (10) were postponed or could not proceed except for a few minutes because either 1.1. Atty. Crispin Baizas, counsel for defendant, was not available or needed time to prepare (HE ACTUALLY REASONED THAT HE COULDN’T CROSS EXAMINE THE WITNESS BECAUSE HE KNEW MORE OF THE DEFENSE [INVOLVED THE CROSS EXAMINATION OF AN UNKNOWN WITNESS, AN DR. PERTIERA | ALSO REASONED THAT HE HAD TO ATTEND A MEETING WITH PAL’S BOD | MEETING WITH IATA WAS RESCHEDULED [pumayag but sa order, the judge stated na IT WAS DEFINITELY for the last time) or had to attend a meeting somewhere else, or, 1.2. As in the case of September 28, 1966, defendant's witnesses wanted to avoid the inconvenience of coming to the Philippines. The situation became such that on two (2) occasions the Court a quo warned the defendant and/or its counsel that it was postponing the trial ‘for the last time’ and ‘definitely for the last time.’ FACTS 1. In October, 1963, the Sharp Travel Service, the travel department of C.F. Sharp, Inc., the majority interest in which is held by Rocha y Cia., Inc., General Agents of the defendant, Lufthansa German Airlines, issued to the plaintiff First Class Pan American Ticket- No. 026492 147076 to 81 which would take him from Manila, the place of departure, to Hongkong, various cities in the United States, Europe, Asia, the Far East, and then back to Manila, the place of destination. Ortigas' ticket for all these different legs of his journey was first class. 2. Ortigas arrived in due course in Rome. To be sure he could fly first class to Hongkong on November 18, 1963, for his appointments there the next day, Ortigas repaired to the office of the Alitalia on Saturday, November 16, 1963, to book passage. The man at the counter of the Alitalia office told him it had no flight on Monday but the Lufthansa had. The man thereupon called up the office of the Lufthansa and, after talking to an employee thereof, told Ortigas that the Lufthansa had no first class, but only economy, seats available on its Monday flight. 3. Ortigas answered that he was not willing to take an economy seat and requested the employee to call up other airlines. Then the phone rang. The employee answered and afterwards informed Ortigas that the Lufthansa had a first class seat available for its Monday flight. Ortigas immediately asked him to get the seat and to see to it that his ticket be confirmed and validated for the flight and a first class seat. The man thereafter asked for Ortigas' passport and other travel papers and

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attached a validating sticker (Exhibit 'D-1') on flight coupon No. 4 (Exhibit 'B') which corresponded to the Rome-Hongkong leg of his TWA Ticket No. 115-460-451-878. Wishing to be doubly sure, Ortigas again requested the Alitalia employee to call back the Lufthansa office to recheck whether his ticket was really confirmed and validated. The man did so, after which he told Ortigas that his ticket had been checked, validated, and confirmed as shown by the word 'O.K.' on the sticker. FLIGHT DAY: The lady at the counter told him the Lufthansa had no space for him that day. Ortigas requested her to check with her main office, which she did by calling it up. After calling, she apologized and said the plaintiff's ticket was in order and would be confirmed and validated. On her request, Ortigas had his luggage weighed and was given the free luggage allowance of a first class passenger. He was furthermore asked to pay 800 liras for bus fare and 700 liras as embarkation tax. Then Ortigas, along with other passengers, one of whom was Amado Castro of the Development Bank of the Philippines, boarded a bus for the airport At the airport, the plaintiff handed over his ticket to the man behind the Lufthansa counter, who told him everything was all right. At that juncture, the plaintiff heard his name called. He inquired if he was being called from an employee of the Lufthansa and, on receiving an affirmative answer, said he was Ortigas. The employee asked for his passport and other papers and, after examining his passport, where his Filipino nationality appears, said he could not board the plane that day because his seat would be given to a Belgian. Ortigas asked the man why he was doing that to him when his ticket was confirmed and validated first class. The Lufthansa employee replied he was sorry but Ortigas could not leave. The plaintiff then told the Lufthansa man to bring the Belgian over so that his papers may be examined to determine whether he had a preferred right to Ortigas' seat but the Lufthansa employee turned down the request, raised his voice, and said if the plaintiff desired, he could take an economy seat and he would be allowed a refund. Ortigas retorted he was not interested in a refund and what he wanted was to travel first class in accordance with his ticket. This argument occurred in the presence of the other passengers, one of whom was Amado Castro, and the plaintiff felt embarrassed and humiliated because the Lufthansa employee was shouting at him and treating him the way he did. Ortigas made another request, namely, that the employee call other airlines to inquire if they had flights to Hongkong that day but he once more turned down the plea and insisted that Ortigas travel economy, with the promise that he will be transferred to first class in Cairo and onward to Hongkong. After promising so, the man went inside a room and, after a while, came out and assured the plaintiff he would travel first class from Cairo to Hongkong because he sent a communication that it should be done. He then jotted down some letters on Ortigas' ticket. The plaintiff replied he was not satisfied with the arrangement but was constrained to agree to it because he had to be in Hongkong the next day, his luggage was in all probability already inside the plane, he was not certain he could still secure a hotel reservation, the manager of the hotel where he stayed having told him it would be hard for him to get another reservation once he checks out, and he was assured he would be given first class passage from Cairo onward. Upon arrival in Cairo, the plaintiff requested the Lufthansa agent to transfer him to first class but the agent said he could not and that he did not receive any communication from Rome to that effect. Ortigas also requested the man to find out if there were other airlines having planes leaving that day but his request was likewise denied. The man, however, promised that at Dharham, Ortigas will be transferred to first class. Ortigas had no alternative but to continue traveling as before but he did so again under protest. At Dharham, the plaintiff once more requested a transfer to first class but was also told by the Lufthansa agent that he had not received any communication about the change and the request could not be granted. The plaintiff had to travel perforce economy from Dharham. In Calcutta, Ortigas once again requested a transfer or that he be assisted in booking passage on other planes but was also refused. It was only in Bangkok when the chief steward asked him if he wanted to move over to first class but having been already embarrassed and humiliated and the trip to Hongkong being only three hours, he said he would not as a sign of protest. In Hongkong, Ortigas protested against the treatment given him but was told by the Lufthansa office he had to file his protest in Manila, it being the point of destination. Manuel Otayza, general manager of Filital, Inc., which is the general agent of the Alitalia in the Philippines, testified that space reservation through telephone calls between airlines is permitted by IATA's, 'Manual of Traffic Conference Resolutions' and that telephone calls for reservation by one airline to another is in fact accepted procedure in accordance with the official airline guide of the Air Traffic Conference and International Air Transport Association a. The placing by the Alitalia of a sticker of the plaintiff's ticket obligated the Lufthansa to give him a first class seat on its flight from Rome to Hongkong on November 18, 1963. The same

witness, Manuel Otayza, testified that the placing of a validating sticker on a ticket is standard airline procedure; that a sticker changes are status of a reservation; that consequently while Ortigas' ticket was "open", that is, it had no reservation for a particular flight between Rome and Hongkong, the moment a validating sticker was placed thereon, stating the flight number of the airline, the day and hour of departure, with the letters "O.K.", his ticket was clanged from an "open" to a "confirmed" or "validated" ticket; and that the sticker on Ortigas' ticket meant that first class space was confirmed for him on Lufthansa flight 646 to Hongkong on November 18, 1963, at 12:35 P.M. 14. There was, therefore, a valid and binding contract between Lufthansa and the plaintiff to transport him as a first class passenger from Rome to Hongkong on November 18, 1963, and this agreement the defendant violated by compelling the plaintiff to travel as an economy passenger. It cannot be said the breach was the result of an honest mistake or excusable negligence. There is evidence the defendant acted with bad faith and in wilful disregard of the plaintiff’s rights. 15. Ortigas' ticket was confirmed on the early morning of November 16, 1963, more than 48 hours before his departure on the afternoon of November 18. There was, therefore, ample, time to send a telex message from Rome to the defendant's main office in Frankfurt, which is only about 2-1 / 2 flying hours away, to reserve a first class seat for the plaintiff. SUPREME COURT 1. The case has been pending for about three years and had actually suffered during that period even more than the usually permissible number of continuances, quite often to suit the convenience of defendant's counsel. Notice of the September 28, 1966 schedule had been served on counsel the month previous. It must be assumed that due preparations and arrangements were to be made since the receipt of that notice to insure the presence in Manila of the expected witnesses on the date set. Under the circumstances, the excuse given by defendant that the witnesses could not leave their respective stations and places of work to attend the trial is plainly unacceptable. There was enough time and opportunity for defendant to have made the corresponding adjustments in the assignments of its personnel so as to enable its witnesses to be in court. The trouble is that defendant relied on the assumption that the court could be made to wait until the volume and other conditions of its business would permit it to comply with the schedule of the court. For an airline company engaged in international transportation and presumably having all the facilities to have any of its employees available practically anywhere in the world at a moment's notice, if it only took due care to do this, defendant's attitude cannot be countenanced. What is more, the motion of September 24, 1966 gave no reason at all why defendant's witnesses supposed to come from Rome would be unable to be at the trial. Even as late as the day of the hearing, September 28, 1966, the court could not be told the reason for such inability. All that counsel could say was that she "intend(ed) to inquire and file the explanation" later. This was not as it should have been, for the telex advising the Manila office that the witnesses would not be available was received on September 22nd yet, and certainly there was enough time to investigate and find out the reason for such unavailability. And as no justifiable reason could be advanced in support of the verbal motion for reconsideration. We cannot say that His Honor acted improperly when he denied the same. We reiterate, the case had been pending for more than three years, with so many postponements, and the least that defendant should have done to merit favorable action on the part of the trial judge was to be ready with an explanation of its inability to proceed with the trial, giving the detailed and good reasons therefor. As it is, there was actually no basis at all for the exercise of discretion on the part of the trial judge in a manner favorable to it. Trials may be postponed because of the absence of evidence only when such absence is justified. Mere absence is not a justification in itself. Section 4 of Rule 22 is sufficiently clear on this point. It provides that "A motion to postpone a trial on the ground of absence of evidence can be granted only upon affidavit showing the materiality of evidence expected to be obtained, and that due diligence has been used to procure it." This means that it must be shown to the court that due diligence had been exercised in either securing the presence of the evidence (witnesses) or preventing the absence thereof. Moreover, the Rome based witnesses were not the only possible witnesses of defendant. To begin with, Mr. C.H. Dehio, the IATA Agency Manager, Far East and Australasia, Lufthansa German Air Lines, who, according to the record, had already attended previous hearings as a prospective witness could have been made to go to court. There is nothing in the record to show that he was also rendered incapable of doing so. Then, there could still be local witnesses. It is no excuse that presenting other witnesses would have disrupted the presentation of defendant's case, for parties may be allowed to maintain their own way of presenting their evidence only where this can be done without injury to the expeditious disposition of the case arid the best interests of the administration of justice. 2. The subject testimony was properly stricken off. To be sure, this second order was but a logical consequence of the previous order denying defendant's motion for postponement. With such

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denial, the next thing in order was to declare the presentation of evidence of the defendant terminated. Accordingly, it was necessary to determine what evidence could be considered to be for the defendant. And so when counsel for plaintiff asked the court to strike out the testimony so far given by Lazzari, there was practically no alternative for the court but to grant the same. Indeed, defendant's counsel could not and did not offer any objection thereto. Oral testimony may be taken into account only when it is complete, that is, if the witness has been wholly cross-examined by the adverse party or the right to cross-examine is lost wholly or in part thru the fault of such adverse party. But when cross-examination is not and cannot be done or completed due to causes attributable to the party offering the witness, the uncompleted testimony is thereby rendered incompetent. The right of a party to cross-examine the witnesses of his adversary is invaluable as it is inviolable in civil cases, no less than the right of the accused in criminal cases. The express recognition of such right of the accused in the Constitution does not render the right thereto of parties in civil cases less constitutionally based, for it is an indispensable part of the due process guaranteed by the fundamental law. Subject to appropriate supervision by the judge in order to avoid unnecessary delays on account of its being unduly protracted and to needed injunctions protective of the right of the witness against self-incrimination and oppressive and unwarranted harassment and embarrassment, a party is absolutely entitled to a full cross-examination as prescribed in Section 8 of Rule 132. In the case at bar, however, We have opted but to rely exclusively on the foregoing considerations. In order to satisfy Ourselves as to whether or not defendant stands to be irreparably prejudiced by the impugned action of the trial court relative to the testimony of Lazzari, We have just the same gone over the transcript thereof. After considering the same, however, We are of the impression that even his direct testimony, without taking into account anymore his answers to the cross-examination questions of counsel for plaintiff, cannot be of much weight in establishing the defenses in defendant's answer. But it would seem more appropriate to elaborate on this point when We come to the discussion of the mutual accusation of the parties that the trial court erred in the portion of its decision awarding damages to plaintiff. RE: THE ISSUE OF DAMAGES a. Indubitable proof of the defendant's bad faith is found in the fact that while its employee was assuring the plaintiff he would be transferred to first class in Cairo, he was at the same time writing on his ticket the following notation: ‘TRVLDY /c ROME HEG ROME ST', which means 'Travelled economy class Rome to Hongkong St', thereby barring Ortigas from asserting any right to demand first class accommodation. The defendant's employee, therefore, knew all along the plaintiff would not travel first class, and yet he deliberately made him believe he would be transferred to first class from Cairo to Hongkong. b. Disputing the foregoing conclusions, Lufthansa claims firstly that the Alitalia employee who validated and confirmed Ortigas' reservation must have made a mistake because actually, he was informed by the Lufthansa Rome office that Ortigas could only be waitlisted. Assuming, however, there was such an error, it has been indisputably proven that under the so-called pool arrangement among different airline companies pursuant to the International Air Transport Association (IATA) agreement of which Alitalia and Lufthansa are signatories, both companies are constituted thereby as agents of each other in the issuing of tickets and other matters pertaining to their relations with those who would need their services, and since there can be no question that on its face, the annotations made by Alitalia on the ticket here in dispute cannot have any other meaning than that the reservation of Ortigas for the Rome — Hongkong flight was validated and confirmed, Lufthansa's disclaimer is unavailing. c. Besides, it appears that when Ortigas checked in at the airport, the Lufthansa lady employee thereat told him, after making the proper verification, that the reservation was correct. What is more, in the unconcluded testimony of Ivo Lazzari, the striking out of which is questioned by Lufthansa, he admitted that it was a fact that the said reservation of plaintiff for first class was confirmed, albeit he qualified that this was done already in the morning of November 18th, the day of the flight, almost at the last hour. d. In the light of all the foregoing, there can be no doubt as to the right of Ortigas to damages, both moral and exemplary. Precedents We have consistently adhered to so dictate. Beginning with Cuenca, wherein the Court rejected the theory that an air carrier is liable only in the event of death or injury suffered by a passenger, because, according to the Court, to so hold would be tantamount to declaring the carrier "exempt from any liability for damages in the event of its absolute refusal, in bad faith, to comply with a contract of carriage, which is absurd", We have uniformly upheld the right of a passenger to damages in all cases wherein, after having contracted and paid for first class accommodations duly confirmed and validated, he is transferred over his objection to economy class, which he has to take in order to be able to arrive at his destination on his scheduled time.

e. Coming now to the amount that should be awarded by way of damages to the plaintiff, it is also the teaching of the cases aforecited that defendant is liable not only for moral but also for exemplary damages. As earlier stated, the court below fixed the compensation for moral damages at P100,000 and the exemplary at P30,000. The Court believes that these amounts are not enough. i. We have reviewed the evidence and We are convinced there is more than ample basis for these findings. But under the circumstances revealed in the record, it is Our considered opinion that the award of moral damages should be increased to P150,000. ii. We cannot go along with defendant's pose that in Cuenca the amount awarded was only P20,000, for the very obvious reason that in that case what was involved was only one leg of the flight contracted for, namely, that from Okinawa to Tokyo, whereas in the case now at bar, the offense was repeated four times, at Rome, Cairo, Dharham and Calcutta, with apparent cold indifference of defendant's agents to plaintiff’s plight. iii. Lufthansa suggests that compared to the P100,000 awarded to Vice President Lopez in the case aforementioned, the P100,000 given by the trial court to Ortigas are "grossly excessive". It does not appear to Us to be so. As pointed out by His Honor, "although plaintiff has not held any elective public office, he has, however, a distinguished record as a private citizen, a lawyer, businessman, a civic and religious leader, a member of numerous boards and organizations as well as local and international bodies, and is the recipient of awards and citations for outstanding services and achievements." Indeed, under the proven facts in the record, We cannot regard plaintiff to be in any inferior position vis-a-vis Vice President Lopez in the highest circles of Philippine society and in the business and religious world, not to speak of his standing in government officialdom. 1. Besides, there is again the disparity between the Lopez case and this one that here the offense, which, as in Cuenca, is aggravated by the Lufthansa employee at Rome having falsely noted on the ticket that Ortigas was travelling in economy from Rome to Hongkong, was repeated four times in the same trip, namely, in Rome, Cairo, Dharham and Calcutta. 2. More importantly, unlike in the case of Lopez, Ortigas was suffering from a weak heart and was under doctor's advice to travel only in first class iv. Finally, We have the dispute regarding the amount of exemplary damages awarded. In this respect, it is Our considered opinion that defendant should pay P100,000 instead of the P30,000 awarded by the trial court. The record of this case taken together with what are revealed in the other similar cases decided by this Court, those aforediscussed, convinces Us that defendant, as an airline, should be made to pay an amount that can really serve as a deterrent against a seeming pattern of indifference and unconcern, and what is worse, of discrimination for racial reasons, discernible in the treatment of air passengers. RECALLING WITNESS PEOPLE V. HON. RIVERA NARVASA, J.

1. In the case at bar, the respondent Trial Court granted the defendant's motion for recall on nothing more than said movant's general claim that certain questions -- unspecified, it must be stressed -- had to be asked. 1.1. In doing so it acted without basis, exercised power whimsically or capriciously, and gravely abused its discretion. 2. Thus, the respondent Court acted whimsically, capriciously, and oppressively, in other words, gravely abused its discretion, in ordering the striking out of the entire testimony of Benjamin Lee after it appeared that he could no longer be found and produced for further examination. 2.1. In the first place, the Court acted unilaterally, without any motion to this effect by the defense and thus without according the prosecution a prior opportunity to show why the striking out should not be decreed.

2.2. More importantly, the striking out was directed without any showing whatever by the defense of the indispensability of further cross-examination, what it was that would have been elicited by further cross-examination rendering valueless all that the witness had previously stated. 2.3. It should be stressed that Lee was subjected both to cross-examination and recross-examination by former counsel of the accused Sembrano. 2.3.1.Obviously the latter was satisfied that there had been sufficient cross-examination of the witness. 2.3.1.1. Absence of cross-examination may not therefore be invoked as ground to strike out Lee's testimony (as being hearsay). 2.3.1.2. And there is no showing whatever in this case that it was the prosecution that placed the witness beyond the reach of the Court, much less of the expected nature or tenor of his additional testimony which, because not presented, would necessarily cause the evidence earlier given by Lee to become hearsay or otherwise incompetent, and therefore amenable to being stricken from the record. CRIME: ARSON FACTS 1. Accused in that case of arson is Wilfredo L. Sembrano. 2. It is the prosecution's theory that he wilfully caused the fire in the early morning of May 21, 1987 which totally burned and destroyed the second and third floors of the "I Love You Restaurant and Sauna Bath" owned by Juanito L. Tan 3. PROSECUTION’S WITNESSES 3.1. BENJAMIN LEE, ROOM BOY OF THE RESTAURANT AND BATH 3.1.1.DURING DIRECT EXAMINATION: He said that Sembrano had run out of the VIP room where the fire had started and refused to heed his (Lee's) call to stop 3.1.2.Lee took the witness stand again on April 26, 1987 during which he was cross-examined by defense counsel, gave additional evidence on redirect examination, was again questioned on recross-examination by the same defense counsel, and thereafter allowed to step down 4. The prosecution completed presentation of its evidence-in-chief in due course. 4.1. But before it could rest its case, and two (2) months or so after Benjamin Lee had completed his testimony, the defendant's original counsel, Benjamin Formoso, withdrew his appearance and was substituted by another attorney, Eduardo S. Rodriguez 5. The latter then filed a motion on June 8, 1988 to recall Benjamin Lee for further examination 5.1. The ground relied upon by Atty. Rodriguez was simply that after he had reviewed the record of Benjamin Lee's testimony, he came to the conclusion that "there seems to be many points and questions that should have been asked but were not propounded (sic) by the other defense counsel who conducted ** (the cross-examination)." 5.2. It was on this averment, and counsel's reference to "the gravity of the offense charge (sic)" and the need "to afford the accused full opportunity to defend himself," that Lee's recall for further cross examination was sought to be justified. 6. THE COURT GRANTED THE MOTION 7. Efforts were thereafter exerted to cause witness Benjamin Lee to again appear before the Court for further cross-examination. 7.1. These efforts met with no success; and the trial had to be postponed several times. 7.1.1.It appears that Lee had terminated his employment and moved elsewhere without indicating his new address. 8. On October 1, 1990 the private prosecutor filed a "Manifestation and Motion" drawing attention to the inability to procure the re-appearance of witness Lee for which "the prosecution could not be held liable," and to the fact that "Lee has already been thoroughly examined by the former defense counsel," and praying upon these premises "that the further examination of Benjamin Lee be dispensed with and ** the prosecution ** allowed to terminate the presentation of its evidence." 9. TRIAL COURT: DENIED THE MOTION TO DISPENSE WITH LEE’S RECALL 10. In fact, it ordered "the testimony of Benjamin Lee for the prosecution ** stricken off the record for lack of complete cross-examination" because the witness could no longer be found, and "the failure of counsel for the accused to further cross-examine the witness is not the fault of the defense." 11. In the same order, the Court also set the "reception of further evidence for the prosecution, if any, ** on October 23, 1990 ** as earlier scheduled." Subsequently it denied the private prosecutor's motion for reconsideration of the order 12. Hence, the action at bar, instituted by the Office of the Solicitor General

SUPREME COURT: THE WRIT FOR CERTIORARI PRAYED FOR IS GRANTED. The Trial Court acted with grave abuse of discretion in authorizing the recall of witness Benjamin Lee over the objections of the prosecution, and in later striking out said witness' testimony for want of further cross-examination. 3. There is no doubt that a Trial Court has discretion to grant leave for the recall of a witness. 3.1. SECTION 9, RULE 132 SEC. 9. Recalling witness. -- After the examination of a witness by both sides has been concluded, the witness cannot be recalled without leave of the court. The court will grant or withhold leave in its discretion, as the interests of justice may require 4. The discretion to recall a witness is not properly invoked or exercisable by an applicant's mere general statement that there is a need to recall a witness "in the interest of justice," or "in order to afford a party full opportunity to present his case," or that, as here, "there seems to be many points and questions that should have been asked" in the earlier interrogation. 4.1. To regard expressed generalities such as these as sufficient ground for recall of witnesses would make the recall of a witness no longer discretionary but ministerial. 4.2. Something more than the bare assertion of the need to propound additional questions is essential before the Court's discretion may rightfully be exercised to grant or deny recall. 5. There must be a satisfactory showing of some concrete, substantial ground for the recall. There must be a satisfactory showing on the movant's part, for instance, that particularly identified material points were not covered in the cross-examination, or that particularly described vital documents were not presented to the witness whose recall is prayed for, or that the cross-examination was conducted in so inept a manner as to result in a virtual absence thereof. 6. Absent such particulars, to repeat, there would be no foundation for a trial court to authorize the recall of any witness. 7. In the case at bar, the respondent Trial Court granted the defendant's motion for recall on nothing more than said movant's general claim that certain questions -- unspecified, it must be stressed -- had to be asked. 7.1. In doing so it acted without basis, exercised power whimsically or capriciously, and gravely abused its discretion. 8. Thus, the respondent Court acted whimsically, capriciously, and oppressively, in other words, gravely abused its discretion, in ordering the striking out of the entire testimony of Benjamin Lee after it appeared that he could no longer be found and produced for further examination. 8.1. In the first place, the Court acted unilaterally, without any motion to this effect by the defense and thus without according the prosecution a prior opportunity to show why the striking out should not be decreed. 8.2. More importantly, the striking out was directed without any showing whatever by the defense of the indispensability of further cross-examination, what it was that would have been elicited by further cross-examination rendering valueless all that the witness had previously stated. 8.3. It should be stressed that Lee was subjected both to cross-examination and recross-examination by former counsel of the accused Sembrano. 8.3.1.Obviously the latter was satisfied that there had been sufficient cross-examination of the witness. 8.3.1.1. Absence of cross-examination may not therefore be invoked as ground to strike out Lee's testimony (as being hearsay). 8.3.1.2. And there is no showing whatever in this case that it was the prosecution that placed the witness beyond the reach of the Court, much less of the expected nature or tenor of his additional testimony which, because not presented, would necessarily cause the evidence earlier given by Lee to become hearsay or otherwise incompetent, and therefore amenable to being stricken from the record. IMPEACHMENT OF WITNESS GAW V. CHUA NACHURA, J. FACTS 1. Spouses Chua Chin and Chan Chi were the founders of three business enterprises 1.1. Hagonoy Lumber 1.2. Capitol Sawmill Corporation 1.3. Columbia Wood Industries 2. The couple had seven children: Santos, Concepcion, Suy Ben, Suy Phen, Sioc Huan, Suy Lu, and Julita

3. On June 19, 1986, Chua Chin died, leaving his wife Chan Chi and his seven children as his only surviving heirs. 3.1. At the time of Chua Chin's death, the net worth of Hagonoy Lumber was P415,487.20. 4. On December 8, 1986, his surviving heirs executed a Deed of Extra-Judicial Partition and Renunciation of Hereditary Rights in Favor of a Co-Heir, wherein the heirs settled their interest in Hagonoy Lumber as follows: 4.1. ½ thereof will pertain to the surviving spouse, Chan Chi, as her share in the conjugal partnership; and 4.2. The other half, equivalent to P207,743.60, will be divided among Chan Chi and the seven children in equal pro indiviso shares equivalent to P25,967.00 each 4.3. In said document, Chan Chi and the six children likewise agreed to voluntarily renounce and waive their shares over Hagonoy Lumber in favor of their co-heir, Chua Sioc Huan. 5. In May 1988, petitioner Concepcion Chua Gaw and her husband, Antonio Gaw, asked respondent, Suy Ben Chua, to lend them P200,000.00 which they will use for the construction of their house in Marilao, Bulacan. 5.1. The parties agreed that the loan will be payable within six (6) months without interest 6. On June 7, 1988, respondent issued in their favor China Banking Corporation Check No. 240810 for P200,000.00 which he delivered to the couple's house in Marilao, Bulacan. 6.1. Antonio later encashed the check. 7. On August 1, 1990, their sister, Chua Sioc Huan, executed a Deed of Sale over all her rights and interests in Hagonoy Lumber for a consideration of P255,000.00 in favor of respondent 8. Meantime, the spouses Gaw failed to pay the amount they borrowed from respondent within the designated period. 8.1. Respondent sent the couple a demand letter, dated March 25, 1991, requesting them to settle their obligation with the warning that he will be constrained to take the appropriate legal action if they fail to do so. 9. Respondent then filed a Complaint for Sum of Money against the spouses Gaw with the RTC. 9.1. ALLEGATIONS: that on June 7, 1988, he extended a loan to the spouses Gaw for P200,000.00, payable within six months without interest, but despite several demands, the couple failed to pay their obligation. 10. PETITIONERS’ ANSWER + COUNTERCLAIM 10.1. Spouses Gaw contended that the P200,000.00 was not a loan but petitioner's share in the profits of Hagonoy Lumber, one of her family's businesses. 10.2. According to the spouses, when they transferred residence to Marilao, Bulacan, petitioner asked respondent for an accounting, and payment of her share in the profits, of Capital Sawmills Corporation, Columbia Wood Industries Corporation, and Hagonoy Lumber. 10.3. They claimed that respondent persuaded petitioner to temporarily forego her demand as it would offend their mother who still wanted to remain in control of the family businesses. 10.4. To insure that she will defer her demand, respondent allegedly gave her P200,000.00 as her share in the profits of Hagonoy Lumber 11. REPLY 11.1. Respondent averred that the spouses Gaw did not demand from him an accounting of Capitol Sawmills Corporation, Columbia Wood Industries, and Hagonoy Lumber. 11.2. He asserted that the spouses Gaw, in fact, have no right whatsoever in these businesses that would entitle them to an accounting thereof. 11.3. Respondent insisted that the P200,000.00 was given to and accepted by them as a loan and not as their share in Hagonoy Lumber 12. With leave of court, the spouses Gaw filed an Answer (with Amended Compulsory Counterclaim) wherein they insisted that petitioner, as one of the compulsory heirs, is entitled to one-sixth (1/6) of Hagonoy Lumber, which the respondent has arrogated to himself. 12.1. They claimed that, despite repeated demands, respondent has failed and refused to account for the operations of Hagonoy Lumber and to deliver her share therein. 12.2. They then prayed that respondent make an accounting of the operations of Hagonoy Lumber and to deliver to petitioner her one-sixth (1/6) share thereof, which was estimated to be worth not less than P500,000.00 13. In his Answer to Amended Counterclaim, respondent explained that his sister, Chua Sioc Huan, became the sole owner of Hagonoy Lumber when the heirs executed the Deed of Partition on December 8, 1986. 13.1. In turn, he became the sole owner of Hagonoy Lumber when he bought it from Chua Sioc Huan, as evidenced by the Deed of Sale dated August 1, 1990 14. Defendants, in their reply, countered that the documents on which plaintiff anchors his claim of ownership over Hagonoy Lumber were not true and valid agreements and do not express the real intention of the parties.

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14.1. They claimed that these documents are mere paper arrangements which were prepared only upon the advice of a counsel until all the heirs could reach and sign a final and binding agreement, which, up to such time, has not been executed by the heirs During trial, the spouses Gaw called the respondent to testify as adverse witness under Section 10, Rule 132. 15.1. DURING DIRECT EXAMINATION 15.1.1. Respondent testified that Hagonoy Lumber was the conjugal property of his parents Chua Chin and Chan Chi, who were both Chinese citizens. 15.1.2. He narrated that, initially, his father leased the lots where Hagonoy Lumber is presently located from his godfather, Lu Pieng, and that his father constructed the two-storey concrete building standing thereon. 15.1.3. According to respondent, when he was in high school, it was his father who managed the business but he and his other siblings were helping him. 15.1.4. Later, his sister, Chua Sioc Huan, managed Hogonoy Lumber together with their other brothers and sisters. 15.1.5. He stated that he also managed Hagonoy Lumber when he was in high school, but he stopped when he got married and found another job. 15.1.6. He said that he now owns the lots where Hagonoy Lumber is operating 15.2. DURING CROSS EXAMINATION 15.2.1. Respondent explained that he ceased to be a stockholder of Capitol Sawmill when he sold his shares of stock to the other stockholders on January 1, 1991. 15.2.2. He further testified that Chua Sioc Huan acquired Hagonoy Lumber by virtue of a Deed of Partition, executed by the heirs of Chua Chin. 15.2.3. He, in turn, became the owner of Hagonoy Lumber when he bought the same from Chua Sioc Huan through a Deed of Sale dated August 1, 1990 15.3. DURING RE-DIRECT EXAMINATION 15.3.1. Respondent stated that he sold his shares of stock in Capitol Sawmill for P254,000.00, which payment he received in cash. 15.3.2. He also paid the purchase price of P255,000.00 for Hagonoy Lumber in cash, which payment was not covered by a separate receipt as he merely delivered the same to Chua Sioc Huan at her house in Paso de Blas, Valenzuela. 15.3.3. Although he maintains several accounts at Planters Bank, Paluwagan ng Bayan, and China Bank, the amount he paid to Chua Sioc Huan was not taken from any of them. 15.3.4. He kept the amount in the house because he was engaged in rediscounting checks of people from the public market On December 10, 1998, Antonio Gaw died due to cardio vascular and respiratory failure RTC: RULED IN FAVOR OF RESPONDENT 17.1. The RTC held that respondent is entitled to the payment of the amount of P200,000.00 with interest. 17.1.1. It noted that respondent personally issued Check No. 240810 to petitioner and her husband upon their request to lend them the aforesaid amount. 17.1.2. The trial court concluded that the P200,000.00 was a loan advanced by the respondent from his own funds and not remunerations for services rendered to Hagonoy Lumber nor petitioner's advance share in the profits of their parents' businesses. 17.2. The trial court further held that the validity and due execution of the Deed of Partition and the Deed of Sale, evidencing transfer of ownership of Hagonoy Lumber from Chua Sioc Huan to respondent, was never impugned. 17.2.1. Although respondent failed to produce the originals of the documents, petitioner judicially admitted the due execution of the Deed of Partition, and even acknowledged her signature thereon, thus constitutes an exception to the best evidence rule. 17.2.2. As for the Deed of Sale, since the contents thereof have not been put in issue, the nonpresentation of the original document is not fatal so as to affect its authenticity as well as the truth of its contents. 17.2.3. Also, the parties to the documents themselves do not contest their validity. 17.2.4. Ultimately, petitioner failed to establish her right to demand an accounting of the operations of Hagonoy Lumber nor the delivery of her 1/6 share therein. 17.3. As for petitioner's claim that an accounting be done on Capitol Sawmill Corporation and Columbia Wood Industries, the trial court held that respondent is under no obligation to make such an accounting since he is not charged with operating these enterprises THE APPELLATE COURT AFFIRMED THE DECISION OF RTC 18.1. The appellate court found baseless the petitioner's argument that the RTC should not have included respondent's testimony as part of petitioner's evidence.

18.2. The CA noted that the petitioner went on a fishing expedition, the taking of respondent's testimony having taken up a total of eleven hearings, and upon failing to obtain favorable information from the respondent, she now disclaims the same. 18.3. Moreover, the CA held that the petitioner failed to show that the inclusion of respondent's testimony in the statement of facts in the assailed decision unduly prejudiced her defense and counterclaims. 18.4. In fact, the CA noted that the facts testified to by respondent were deducible from the totality of the evidence presented. 18.5. The CA likewise found untenable petitioner's claim that Exhibits "H" (Deed of Sale) and Exhibit "I" (Deed of Partition) were merely temporary paper arrangements. 18.6. The CA agreed with the RTC that the testimony of petitioner regarding the matter was uncorroborated -- she should have presented the other heirs to attest to the truth of her allegation. 18.7. Instead, petitioner admitted the due execution of the said documents. 18.8. Since petitioner did not dispute the due execution and existence of Exhibits "H" and "I", there was no need to produce the originals of the documents in accordance with the best evidence rule Petitioner contends that her case was unduly prejudiced by the RTC's treatment of the respondent's testimony as adverse witness during cross-examination by his own counsel as part of her evidence. Petitioner argues that the adverse witness' testimony elicited during cross-examination should not be considered as evidence of the calling party. She contends that the examination of respondent as adverse witness did not make him her witness and she is not bound by his testimony, particularly during crossexamination by his own counsel SUPREME COURT: THE PETITION IS WITHOUT MERIT 1. If there was an error committed by the RTC in ascribing to the petitioner the respondent's testimony as adverse witness during cross-examination by his own counsel, it constitute a harmless error which would not, in any way, change the result of the case. 2. In the first place, the delineation of a piece of evidence as part of the evidence of one party or the other is only significant in determining whether the party on whose shoulders lies the burden of proof was able to meet the quantum of evidence needed to discharge the burden. 2.1. In civil cases, that burden devolves upon the plaintiff who must establish her case by preponderance of evidence. 2.2. The rule is that the plaintiff must rely on the strength of his own evidence and not upon the weakness of the defendant's evidence. 2.3. Thus, it barely matters who with a piece of evidence is credited. 2.4. In the end, the court will have to consider the entirety of the evidence presented by both parties. 2.5. Preponderance of evidence is then determined by considering all the facts and circumstances of the case, culled from the evidence, regardless of who actually presented it 3. That the witness is the adverse party does not necessarily mean that the calling party will not be bound by the former's testimony. 3.1. The fact remains that it was at his instance that his adversary was put on the witness stand. 3.2. Unlike an ordinary witness, the calling party may impeach an adverse witness in all respects as if he had been called by the adverse party, except by evidence of his bad character. 3.3. Under a rule permitting the impeachment of an adverse witness, although the calling party does not vouch for the witness' veracity, he is nonetheless bound by his testimony if it is not contradicted or remains unrebutted 4. A party who calls his adversary as a witness is, therefore, not bound by the latter's testimony only in the sense that he may contradict him by introducing other evidence to prove a state of facts contrary to what the witness testifies on. 4.1. A rule that provides that the party calling an adverse witness shall not be bound by his testimony does not mean that such testimony may not be given its proper weight, but merely that the calling party shall not be precluded from rebutting his testimony or from impeaching him. 4.1.1.This, the petitioner failed to do. 5. In the present case, the petitioner, by her own testimony, failed to discredit the respondent's testimony on how Hagonoy Lumber became his sole property. 5.1. The petitioner admitted having signed the Deed of Partition but she insisted that the transfer of the property to Chua Siok Huan was only temporary. 5.2. On cross-examination, she confessed that no other document was executed to indicate that the transfer of the business to Chua Siok Huan was a temporary arrangement.

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5.3. She declared that, after their mother died in 1993, she did not initiate any action concerning Hagonoy Lumber, and it was only in her counterclaim in the instant that, for the first time, she raised a claim over the business. Due process requires that in reaching a decision, a tribunal must consider the entire evidence presented. 6.1. All the parties to the case, therefore, are considered bound by the favorable or unfavorable effects resulting from the evidence. 6.2. As already mentioned, in arriving at a decision, the entirety of the evidence presented will be considered, regardless of the party who offered them in evidence. 6.3. In this light, the more vital consideration is not whether a piece of evidence was properly attributed to one party, but whether it was accorded the apposite probative weight by the court. 6.4. The testimony of an adverse witness is evidence in the case and should be given its proper weight, and such evidence becomes weightier if the other party fails to impeach the witness or contradict his testimony. Significantly, the RTC's finding that the P200,000.00 was given to the petitioner and her husband as a loan is supported by the evidence on record. 7.1. Hence, we do not agree with the petitioner's contention that the RTC has overlooked certain facts of great weight and value in arriving at its decision. 7.2. The RTC merely took into consideration evidence which it found to be more credible than the selfserving and uncorroborated testimony of the petitioner. On the issue of whether the P200,000.00 was really a loan, it is well to remember that a check may be evidence of indebtedness. 8.1. A check, the entries of which are in writing, could prove a loan transaction. 8.2. It is pure naiveté to insist that an entrepreneur who has several sources of income and has access to considerable bank credit, no longer has any reason to borrow any amount. The petitioner's allegation that the P200,000.00 was advance on her share in the profits of Hagonoy Lumber is implausible. 9.1. It is true that Hagonoy Lumber was originally owned by the parents of petitioner and respondent. 9.2. However, on December 8, 1986, the heirs freely renounced and waived in favor of their sister Chua Sioc Huan all their hereditary shares and interest therein, as shown by the Deed of Partition which the petitioner herself signed. 9.3. By virtue of this deed, Chua Sioc Huan became the sole owner and proprietor of Hagonoy Lumber. 9.3.1.Thus, when the respondent delivered the check for P200,000.00 to the petitioner on June 7, 1988, Chua Sioc Huan was already the sole owner of Hagonoy Lumber. 9.4. At that time, both petitioner and respondent no longer had any interest in the business enterprise; neither had a right to demand a share in the profits of the business. 9.5. Respondent became the sole owner of Hagonoy Lumber only after Chua Sioc Huan sold it to him on August 1, 1990. So, when the respondent delivered to the petitioner the P200,000.00 check on June 7, 1988, it could not have been given as an advance on petitioner's share in the business, because at that moment in time both of them had no participation, interest or share in Hagonoy Lumber. 9.6. Even assuming, arguendo, that the check was an advance on the petitioner's share in the profits of the business, it was highly unlikely that the respondent would deliver a check drawn against his personal, and not against the business enterprise's account. It is also worthy to note that both the Deed of Partition and the Deed of Sale were acknowledged before a Notary Public. The notarization of a private document converts it into a public document, and makes it admissible in court without further proof of its authenticity 10.1. A notarized document carries evidentiary weight as to its due execution, and documents acknowledged before a notary public have in their favor the presumption of regularity. 10.2. Such a document must be given full force and effect absent a strong, complete and conclusive proof of its falsity or nullity on account of some flaws or defects recognized by law. 10.3. A public document executed and attested through the intervention of a notary public is, generally, evidence of the facts therein express in clear unequivocal manner Petitioner, however, maintains that the RTC erred in admitting in evidence a mere copy of the Deed of Partition and the Deed of Sale in violation of the best evidence rule. In addition, petitioner insists that the Deed of Sale was not the result of bona fide negotiations between a true seller and buyer. 11.1. The "best evidence rule" as encapsulated in Rule 130, Section 3, of the Revised Rules of Civil Procedure applies only when the content of such document is the subject of the inquiry. 11.2. Where the issue is only as to whether such document was actually executed, or exists, or on the circumstances relevant to or surrounding its execution, the best evidence rule does not apply and testimonial evidence is admissible.

11.3. Any other substitutionary evidence is likewise admissible without need to account for the original. 11.4. Moreover, production of the original may be dispensed with, in the trial court's discretion, whenever the opponent does not bona fide dispute the contents of the document and no other useful purpose will be served by requiring production 12. Accordingly, we find that the best evidence rule is not applicable to the instant case. Here, there was no dispute as to the terms of either deed; hence, the RTC correctly admitted in evidence mere copies of the two deeds. The petitioner never even denied their due execution and admitted that she signed the Deed of Partition. As for the Deed of Sale, petitioner had, in effect, admitted its genuineness and due execution when she failed to specifically deny it in the manner required by the rules. The petitioner merely claimed that said documents do not express the true agreement and intention of the parties since they were only provisional paper arrangements made upon the advice of counsel. Apparently, the petitioner does not contest the contents of these deeds but alleges that there was a contemporaneous agreement that the transfer of Hagonoy Lumber to Chua Sioc Huan was only temporary. 13. An agreement or the contract between the parties is the formal expression of the parties' rights, duties and obligations. It is the best evidence of the intention of the parties. The parties' intention is to be deciphered from the language used in the contract, not from the unilateral post facto assertions of one of the parties, or of third parties who are strangers to the contract. Thus, when the terms of an agreement have been reduced to writing, it is deemed to contain all the terms agreed upon and there can be, between the parties and their successors in interest, no evidence of such terms other than the contents of the written agreement AUGUSTO GOMEZ, AS SPECIAL ADMINISTRATOR OF THE INTESTATE ESTATE OF CONSUELO GOMEZ V. MARIA RITA GOMEZ-SAMSON, ET AL. PETITION FOR REVIEW ON CERTIORARI CHICO-NAZARIO, J. FACTS 1. Petitioner claims that, in the two Deeds of Donation he is impugning, the signatures of the donee were jotted down before the bodies of the Deeds were typewritten. 1.1. Petitioner's expert claims she is certain of the answer: the signature came first 2. Respondents maintain that the bodies of the Deeds were encoded first, and then, a clashing presentation of expert witnesses and circumstantial evidence ensued. 2.1. Respondents' expert, on the other hand, says that it is impossible to determine which came first accurately 3. TC and CA ruled in favour of RESPONDENTS 4. 2-15-90: P instituted the following cases: 4.1. Civil Case No. 36089, entitled: "Augusto Gomez, as Special Administrator of the Intestate Estate of Consuelo Gomez, Plaintiff, versus Maria Rita Gomez-Samson, Marcial Samson, Jesus B. Gomez, and the Registers of Deeds of Pasig and Marikina, Rizal, Defendants" 4.1.1.alleged that CONSUELO, who died on November 6, 1979, was the owner of the following real properties: 4.1.1.1. A parcel of land, with all the improvements thereon, situated in Marikina, Metro Manila 4.1.1.2. A parcel of land, with all the improvements thereon, situated in Marikina, Metro Manila 4.1.1.3. A parcel of land, with all the improvements thereon, situated in Pasig, Metro Manila 4.1.2.that after the death of Consuelo, defendants Rita and Jesus fraudulently prepared and/or caused to be prepared a Deed of Donation Intervivos; 4.1.3.that in the said document, Consuelo donated the above described properties to defendants Rita and Jesus; 4.1.4.that the said defendants forged or caused to be forged the signature of the donor, Consuelo; 4.1.5.that the notarial acknowledgement on the said document was antedated to April 21, 1979; 4.1.6.that on the basis of the said document defendants sought the cancellation of the certificates of title in the name of Consuelo and the issuance of new ones in the names of defendants Rita and Jesus 4.1.7.PRAYER: deed of donation inter vivos be declared null and void; TCTs be reinstated in the name of the intestate estate of Consuelo Gomez; payment of damages, atty.’s fees, and lit. expenses

4.2. Civil Case No. 36090, entitled: "Augusto Gomez, as Special Administrator of the Intestate Estate of Consuelo Gomez, Plaintiff, versus Ariston Gomez, Sr., and Ariston B. Gomez, Jr., Defendants", 4.2.1.Plaintiff alleged in his complaint that Consuelo was also the sole owner of the following personal properties: 4.2.1.1. Seventy-five (75) common shares of stock of V-Tri Realty, Inc. with a total par value of P75,000.00 and covered by Stock Certificate No. 003 4.2.1.2. Eleven thousand eight hundred fifty three (11,853) common shares of stock of First Philippine Holdings Corporation with a total par value of P118,530.00 covered by Stock Certificates Nos. A-02614 (7,443 shares) and A-02613 (2,040 shares) and A-09018 (2,370 shares); 4.2.1.3. Jewelries and collector's items, contained in Consuelo Gomez's Safe Deposit Box No. 44 at the PCI Bank, Marikina Branch, which were inventoried on January 9, 1980 per Order of the Court in Special Proceedings No. 9164; 4.2.1.4. A four-door sedan 1978 Mercedes Benz 200 with Motor No. 11593810-050706, Serial/Chassis No. 12302050-069893, Plate No. A6-252 and LTC Registration Certificate No. 0140373 valued at P200,000.00, more or less at the time Consuelo Gomez died; 4.2.1.5. A four-door sedan 1979 Toyota Corona with Motor No. 12RM-031643, Serial/Chassis No. RT-130-901150, Plate No. B-09-373 and LTC Registration Certificate No. 0358757, valued at P50,000.00, more or less at the time Consuelo Gomez died; 4.2.1.6. Two hundred thousand pesos (P200,000.00) including accrued interests on money market placement with the BA Finance Corporation per its promissory note No. BAT-0116 dated March 9, 1978 4.2.2.that after the death of Consuelo, defendants fraudulently prepared and/or caused to be prepared a Deed of Donation Intervivos; 4.2.3.that in the said document Consuelo donated the above described properties to defendants Ariston, Sr. and Ariston, Jr.; that the said defendants forged or caused to be forged the signature of the donor, Consuelo; 4.2.4.that the notarial acknowledgment on the said document was antedated to April 21, 1979; that on the basis of the said document defendant Ariston, Sr., [in] December 1978, effected or tried to effect a change of the LTC registration of the two (2) vehicles; 4.2.5.that defendant Ariston, Jr., for his part, pre-terminated the money market placements with BA Finance and received checks in the sums of P187,027.74 and P4,405.56; 4.2.6.that with the exception of the jewelries, which are with the bank, defendant Ariston, Sr., has benefited and will continue to benefit from the use of the two (2) vehicles and from the dividends earned by the shares of stocks 4.2.7.PRAYER: DOD be declared null and void; that def. be ordered to delivery everything that was vested upon him by the fraudulent deed; and tht he be ordered to pay P the amount equivalent to what he received from BA Finance + damages + atty.’s fees + litigation expenses and costs 4.2.7.1.1. both in the Regional Trial Court, Pasig City 4.2.7.1.2. CONSUELO, ARISTON, SR. and Angel, all surnamed Gomez, were sister and brothers, respectively. MARIA-RITA Gomez-Samson, JESUS Gomez and ARISTON Gomez, JR. are the children of ARISTON, SR. while AUGUSTO Gomez (petitioner) is the child of Angel 5. PROCEDURAL STUFF 5.1. Civil Case No. 36089, entitled: "Augusto Gomez, as Special Administrator of the Intestate Estate of Consuelo Gomez, Plaintiff, versus Maria Rita Gomez-Samson, Marcial Samson, Jesus B. Gomez, and the Registers of Deeds of Pasig and Marikina, Rizal, Defendants" 5.1.1.4/24/90: Private defendants and the nominal defendant Register of Deeds denied in their Answer the material allegations of the complaint and that the deed of donation was submitted to the Notarial Section of the CFI-QC as early as 7/2/79; they also filed a counterclaim for moral damages 2M, compensatory damages 1M, exemplary damages 0.5M, atty.’s fees 0.2M, and that P be made solidarily liable with the estate 5.2. Civil Case No. 36090, entitled: "Augusto Gomez, as Special Administrator of the Intestate Estate of Consuelo Gomez, Plaintiff, versus Ariston Gomez, Sr., and Ariston B. Gomez, Jr., Defendants" 5.2.1.3/19/80: Defendants filed their answer; they denied the material allegations in the complaint and that the deed of donation was submitted to the Notarial Section of the CFI-QC as early as 7/2/79; they also filed a counterclaim for moral damages 2M, compensatory damages 1M, exemplary damages 0.5M, atty.’s fees 0.2M, and that P be made solidarily liable with the estate 5.2.1.1. Ownership transmitted to both as early as 4/20/79 6. TC dismissed the complaints; CA affirmed said dismissal. 7. Hence, this petition for review on certiorari

SUPREME COURT WEIGHT AND CREDIBILITY OF EXPERT WITNESSES. W/N PETITIONER WAS ABLE TO PROVE THAT THE DEEDS OF DONATION WERE MERELY INTERCALATED INTO TWO SHEETS OF PAPER SIGNED BY THE DECEASED? 1. NO. 2. POSITIVE EVIDENCE IS, AS A GENERAL RULE, MORE CREDIBLE THAN NEGATIVE EVIDENCE 2.1. RATIO: the witness who testifies to a negative may have forgotten what actually occurred, while it is impossible to remember what never existed 3. Expert witnesses, though, examine documentary and object evidence precisely to testify on their findings in court. It is, thus, highly improbable for an expert witness to forget his examination of said evidence. Consequently, whereas faulty memory may be the reason for the negative testimonies delivered by ordinary witnesses, this is unlikely to be so with respect to expert witnesses. While we, therefore, cannot say that positive evidence does not carry an inherent advantage over negative evidence when it comes to expert witnesses, the process by which the expert witnesses arrived at their conclusions should be carefully examined and considered 4. On this respect, Prof. Wigmore states that the ordinary expert witness, in perhaps the larger proportion of the topics upon which he may be questioned, has not a knowledge derived from personal observation. He virtually reproduces, literally or in substance, conclusions of others which he accepts on the authority of the eminent names responsible for them 5. In the case at bar, therefore, the expert testimony that "no finding or conclusion can be arrived at," was found to be more credible than the expert testimony positively stating that the signatures were affixed before the typing of the Deeds of Donation. The former expert testimony has proven to be more in consonance with the authorities cited by both experts. 6. The only direct evidence presented by petitioner on this matter is the testimony of Zenaida Torres, Document Examiner (NBI) 6.1. Her findings were that the signatures therein were indeed those of Consuelo 6.2. She opined that Documents No. 401 and No. 402 were not typed or prepared in one continuous sitting because the horizontal lines had some variances horizontally 6.3. She admitted that the vertical lines did not show any variance 6.4. Also testified that with respect to Document No. 401, the typewritten words "Consuelo C. Gomez" were typed after the handwritten signature "Consuelo C. Gomez”  the letter "o" in the handwritten signature, which touches the letter "n" in the typewritten name "Consuelo C. Gomez." She could not, however, make any similar findings with respect to Document No. 402, because the typewritten words "Consuelo C. Gomez" and the handwritten signature "Consuelo C. Gomez" "do not even touch" in the latter document 7. Respondents, on the other hand, presented their own expert witness, Francisco Cruz, Chief of Document Examination of the PC-INP Crime Laboratory 7.1. Other direct evidence presented by respondents includes testimonies positively stating that the Deeds of Donation were signed by Consuelo in their completed form in the presence of Notary Public Jose Sebastian. These testimonies are that of Jose Sebastian himself, and that of several of the respondents including Ariston Gomez, Jr. (Ariston, Jr.), who allegedly drafted said Deeds of Donation. 8. Zenaida Torres failed to convince the trial court that the Deeds of Donation were not prepared in one sitting 8.1. She admitted that the subject signatures were genuine 8.2. Torres admitted that she had not taken any specialized studies on the matter of "Questioned Documents," except on one or two seminars on "Questioned Documents." She admitted that she had not passed the Board Exams, as a Chemist; she further admitted that she has not written any thesis or similar work on the subject matter at issue 8.3. She admitted that she had never seen the typewriter used to type the Donations 401 and 402, nor even tried to get hold of it, before she made the report; that there were no variances insofar as the vertical alignments of the typewritten documents were concerned; that there were only variances insofar as the horizontal alignments are concerned; she admitted that if anybody had wanted to incorporate a document into a blank sheet of paper, on top of a signature, the normal step to be taken would be to be careful on horizontal alignment, which can be seen via the naked eye; and not the vertical alignment. Yet, the vertical alignment, as admitted by her, was perfect 8.4. She had to admit that it is possible that if the paper roller is loose, the horizontal alignment will have a variance; whereas, the vertical alignment would have no variance, and there would be nothing sinister about this 9. The trial court gave weight to the testimony of Francisco Cruz 9.1. Testified on this point that the Donations 401 and 402 were both typed in one continuous sitting

9.1.1.He was able to determine that the typewriter used was the elite typewriter, because as per Cruz, when his typewriting measuring the instruments were placed over the documents, there were twelve (12) letters that went inside one inch, which is a characteristic of an elite typewriter 9.1.2.Noticed that the color tone of the typewriter ink is the same, thru the entire documents (if not done in one sitting, the color tone would have been different) 9.2. Concluded that both the horizontal and vertical alignments are in agreement 9.2.1.Used a typewriting measuring instrument produced by the Criminal Research Co. in the USA; result: perfect alignment 9.2.2.When he took photographs of the documents, he had already placed the typewriting measuring instrument over the document and he showed to the court the enlarged photographs, indicating clearly that all the vertical alignments are all in order 9.2.3.The slight variances as to the spacing of the words "Know All Men By These Presents" and the words "That I Consuelo C. Gomez, single, of legal age, Filipino, and a resident of 24 Pine Street, New Marikina Subdivision, Marikina", there is a slight disagreement in the spacing, but not in the alignment (was due to the pushing of the variable paper by the typist) 9.2.4.emphasized that the left margins are aligned and this signifies that there was typing in one continuous sitting, because if you type on a paper and re-insert it again, there are differences in the left hand margin 10. The trial court added: "[i]n fact, common sense, without more, dictates that if there are no intersections (between the typewritten and the handwritten words), it would be extremely difficult, if not impossible, to determine which came first." (sided with Cruz’s neither here nor there comment) 11. Petitioner then asserted the ff: 11.1. Petitioner also puts in issue the fact that Zenaida Torres was a court-appointed expert, as opposed to Francisco Cruz who was merely designated by respondents. Petitioner also assails the credibility of Francisco Cruz on the ground that he had once testified in favor of respondent Ariston, Jr 11.1.1. US V. TRONO: Expert testimony no doubt constitutes evidence worthy of meriting consideration, although not exclusive on questions of a professional character. The courts of justice, however, are not bound to submit their findings necessarily to such testimony; they are free to weigh them, and they can give or refuse to give them any value as proof, or they can even counterbalance such evidence with the other elements of conviction which may have been adduced during the trial 11.1.2. ESPIRITU V. CA: The relative weight and sufficiency of expert testimony is peculiarly within the province of the trial court to decide, considering the ability and character of the witness, his actions upon the witness stand, the weight and process of the reasoning by which he has supported his opinion, his possible bias in favor of the side for whom he testifies, the fact that he is a paid witness, the relative opportunities for study or observation of the matters about which he testifies, and any other matters which serve to illuminate his statementsThe problem of the credibility of the expert witness and the evaluation of his testimony is left to the discretion of the trial court whose ruling thereupon is not reviewable in the absence of an abuse of that discretion. 11.1.3. The trial court is consequently given the discretion in weighing all these circumstances in its determination of the expert witness' credibility, as it is in a better position than the appellate courts to observe the demeanor of these witnesses. As there is no evidence of abuse of discretion on the part of the trial court in such determination, the latter is not reviewable by this Court. 11.2. That Zenaida Torres conducted her tests on the carbon originals of both Deeds of Donation that were then in the possession of the Notarial Register of Quezon City. On the other hand, Francisco Cruz conducted his tests, with respect to Document No. 401, on the original in the possession of Ariston, Jr 11.2.1. This circumstance cannot be attributed to respondents. After the examination of the documents by Zenaida Torres, fire razed the Quezon City Hall. The carbon originals of said Deeds were among the documents burned in the fire. Petitioner never rebutted respondents' manifestation concerning this incident, nor accused respondents of burning the Quezon City Hall. ALLEGED PATENT IRREGULARITIES ON THE FACE OF THE ASSAILED DEEDS OF DONATION Petitioner, however, also presents the following circumstantial evidence and arguments to prove the same, claiming that there are patent irregularities on the face of the assailed Deeds of Donation: 1) Both deeds are each one-page documents contained in a letter size (8" ½" x "11") paper, instead of the usual legal size (8" ½" x "14") paper, and typed single spaced, with barely any margin on its four sides; [34]

2) In Doc. 401, three parcels of land located in two different municipalities were purportedly donated to two donees in the same document;[35] 3) In Doc. 402, shares of stock in two corporations, jewelries and collector's items in a bank deposit box, two registered cars, cash and money placement in another bank, and a bodega were donated to three donees in the same document;[36] 4) The bodega mentioned in Doc. No. 402 was not owned by Consuelo. If the Deeds were executed by Consuelo, she would surely have known this fact as she was the treasurer of V-TRI Realty Corporation;[37] 5) If Doc. 401 is superimposed on Doc. 402, the signature of Consuelo on both documents appear almost in the same place;[38] 6) The whole of both Deeds of Donation, including the notarial acknowledgement portion and the TAN Numbers and Residence Certificates of the signatories, were typed with only one typewriter. The only portions that seemed to have been typed with a different machine are the date ("21 st") below the acknowledgement and the filled-in numbers of the "Doc. No. ___; Book No. ___; Page No. ___'" portion, the name "Jose R. Sebastian" above the words NOTARY PUBLIC and the PTR Number with date and place of issue;[39] 7) The PTR Number and its date and place of issue appear in the right hand side of the name and signature of Jose Sebastian, instead of below it;[40] 8) The inserted date (which was typed with the same machine used for typing the name of notary public Jose Sebastian) is different from the date of the clause "In WITNESS WHEREOF, the parties hereunto set their hands in Quezon City, on the 20th day of April/1979" (which was typed with another machine; the one used in typing the body of the deed and the body of the acknowledgment);[41] 9) The TAN Numbers and the Residence Certificate Numbers of the purported donor and donees have already been typed with the same machine that was used in typing the body of the deed and the body of the acknowledgement;[42] 10) It is highly questionable that a supposedly well-educated person like Ariston Gomez, Jr. would not have thought of preparing at least five copies of each document as there were four donees and one donor. [43] The Court of Appeals ruled: As to the alleged intercalation of the text of the deeds of donation above the supposedly priorly affixed signature of CONSUELO on a blank sheet of bond paper, as shown by the one-page document in a letter size paper, typed single space with barely any room left on the top, bottom and left and right margins, as well as the lack of copies thereof, it has been explained that the same was due to the fact that the said documents were prepared by defendant ARISTON, JR., a non-lawyer inexperienced with the way such documents should be executed and in how many copies. x x x. xxxx Accordingly, it is not surprising that someone as unfamiliar and inexperienced in preparing a deed of donation, or any deed of conveyance for that matter, as ARISTON, JR., prepared the documents that are the subject matter of the case at bar in the manner that he did.[44] Petitioner counters that the alleged irregularities "do not relate to the proper construction or manner of writing the documents as would necessitate the expertise of a lawyer. Rather, they relate to matters as basic as observing the proper margins at the top, left, right and bottom portions of the document, using the appropriate paper size and number of pages that are necessary and observing appropriate spacing and proper placement of the words in the document." All these alleged irregularities are more apparent than real. None of these alleged irregularities affects the validity of the subject Deeds of Donation, nor connotes fraud or foul play. It is true that the condition and physical appearance of a questioned document constitute a valuable factor which, if correctly evaluated in light of surrounding circumstances, may help in determining whether it is genuine or forged. [45] However, neither the expert witnesses, nor our personal examination of the exhibits, had revealed such a questionable physical condition

Respondents also point out that Ariston, Jr., the person they claim to have prepared said Deeds of Donation, was never confronted during the trial with all these alleged irregularities on the face of the Deeds of Donation. As such, the trial court was never given a chance to determine whether Ariston, Jr. would have given a rational, logical and acceptable explanation for the same. PAYMENT OF DONOR’S TAX BEFORE THE DEATH OF CONSUELO Petitioner claims that the Court of Appeals seriously erred in its finding of fact that Consuelo herself paid the donor's tax of the properties subject of the donation on 9 October 1979, as the evidence allegedly shows that the Donor's Tax was paid on 4 December 1979, or a month after Consuelo's death. Petitioner highlights the fact that the Revenue Tax Receipts (RTRs) and the Confirmation Receipts for the payments supposedly made by Consuelo on 9 October 1979 and by respondent Ariston, Sr. on 4 December 1979 bore consecutive numbers, despite being issued months apart. Petitioner also points to the fact that the tax was stated in the certification to have been paid "on even date" -- meaning, on the date of the certification, 4 December 1979. THEY WERE HOWEVER SIGNED BY CONSUELO. Respondents, on the other hand, presented the following documents to prove payment of the Donor's Tax before the death of Consuelo on 6 November 1979: 1) The covering letter to the BIR Commissioner dated 24 September 1979 and prepared by Mariano A. Requija, accountant of Consuelo and Ariston, Jr., which included the Donor's Tax Return for the properties covered by the two Deeds of Donation. The letter was stamped received by the BIR Commissioner on 8 October 1979;[60] 2) Another letter dated 24 September 1979 executed by Mariano A. Requija containing the breakdown of the donations received by the BIR on 8 October 1979;[62] 3) A schedule of gifts which was also dated 24 September 1979 and which was also received by the BIR on 8 October 1979, enumerating all the donated properties included in the Deeds of Donation.[63] 4) The Donor's Tax Return covering the properties transferred in the two Deeds of Donation filed, received, and receipted by the BIR Commissioner on 8 October 1979;[64] 5) The 9 October 1979 PCIB Personal Check No. A144-73211 issued by Consuelo in favor of the BIR Commissioner in the amount of P119,283.63.[65] 6) An "Authority to Issue Tax Receipt" issued by the BIR Commissioner on 21 October 1979 for a total amount of P119,283.63.[66] Before proceeding further, it is well to note that the factum probandum[67] petitioner is trying to establish here is still the alleged intercalation of the Deeds of Donation on blank pieces of paper containing the signatures of Consuelo. The factum probans[68] this time around is the alleged payment of the Donor's Tax after the death of Consuelo. Firstly, it is apparent at once that there is a failure of the factum probans, even if successfully proven, to prove in turn the factum probandum. As intimated by respondents, payment of the Donor's Tax after the death of Consuelo does not necessarily prove the alleged intercalation of the Deeds of Donation on blank pieces of paper containing the signatures of Consuelo. Secondly, petitioner failed to prove this factum probandum. Ariston, Jr. never testified that Consuelo herself physically and personally delivered PCIB Check No. A14473211 to the BIR. He instead testified that the check was prepared and issued by Consuelo during her lifetime, but that he, Ariston, Jr., physically and personally delivered the same to the BIR.[69] On the query, however, as to whether it was delivered to the BIR before or after the death of Consuelo, petitioner and respondents presented all the conflicting evidence we enumerated above. The party asserting a fact has the burden of proving it. Petitioner, however, merely formulated conjectures based on the evidence he presented, and did not bother to present Nestor Espenilla to explain the consecutive numbers of the RTRs or what he meant with the words "on even date" in his certification. Neither did petitioner present any evidence that the records of the BIR Commissioner were falsified or antedated, thus, letting the presumption that a public official had regularly performed his duties stand. This is in contrast

to respondents' direct evidence attesting to the payment of said tax during the lifetime of Consuelo. With respect to respondents' evidence, all that petitioner could offer in rebuttal is another speculation totally unsupported by evidence: the alleged fabrication thereof. CREDIBILITY OF JOSE SEBASTIAN AS WITNESS It is well to note that, as stated by the Court of Appeals, Jose Sebastian was originally a witness for petitioner Augusto. As such, Rule 132, Section 12, of the Rules of Court prohibits petitioner from impeaching him: SEC. 12. Party may not impeach his own witness. - Except with respect to witnesses referred to in paragraphs (d) and (e) of section 10, the party producing a witness is not allowed to impeach his credibility. A witness may be considered as unwilling or hostile only if so declared by the court upon adequate showing of his adverse interest, unjustified reluctance to testify, or his having misled the party into calling him to the witness stand. The unwilling or hostile witness so declared, or the witness who is an adverse party, may be impeached by the party presenting him in all respects as if he had been called by the adverse party, except by evidence of his bad character. He may also be impeached and cross-examined by the adverse party, but such cross-examination must only be on the subject matter of his examination-in-chief. This rule is based on the theory that a person who produces a witness vouches for him as being worthy of credit, and that a direct attack upon the veracity of the witness "would enable the party to destroy the witness, if he spoke against him, and to make him a good witness, if he spoke for him, with the means in his hands of destroying his credit, if he spoke against him." Neither had there been declaration by the court that Jose Sebastian was an unwilling or hostile witness. Jose Sebastian is also neither an adverse party, nor an officer, director nor a managing agent of a public or private corporation or of a partnership or association which is an adverse party. Be that as it may, even if Jose Sebastian had been declared by the court as an unwilling or hostile witness, the third paragraph of Section 12 as quoted above, in relation to Section 11 of the same Rule, only allows the party calling the witness to impeach such witness by contradictory evidence or by prior inconsistent statements, and never by evidence of his bad character. Thus, Jose Sebastian's subsequent dismissal as a judge would not suffice to discredit him as a witness in this case. The effect of this pronouncement is even more significant in this case, as Jose Sebastian has never been convicted of a crime before his testimony, but was instead administratively sanctioned eleven years after such testimony. ALLEGED UNUSUAL CIRCUMSTANCES RELATIVE TO THE EXECUTION AND NOTARIZATION OF THE DEEDS OF DONATION According to petitioner: 1. The signing and acknowledgement of the Deeds of Donation on 21 April 1979 is highly improbable and implausible, considering the fact that Consuelo left the same day for the United States on a pleasure trip; 2. The flight time of Consuelo on 21 April 1979 was 11:00 a.m.. And even assuming that the flight time was 1:00 p.m., as contended by respondents, the ordinary boarding procedures require Consuelo to be at the airport at least two hours before flight time, or 11:00 a.m.. Petitioner points out that respondents' alleged time frame (from 7:00 a.m. to 11:00 a.m.) is not enough to accomplish the following acts: respondents and Consuelo leaving Marikina at 7:00 a.m. and arriving at the notary public Jose Sebastian's house at Pag-asa, Q.C. at about 8:00 a.m. to 8:30 a.m.; some "small talk with Jose Sebastian; Jose Sebastian examining the documents; Jose Sebastian having a closed meeting with Consuelo to discuss the documents; Jose Sebastian reading the documents to respondents line by line and asking the latter whether they accepted the donation; Jose Sebastian typing the notarial entries; the parties signing the deeds; Jose Sebastian talking privately with Consuelo, who paid the former in cash for his services; Ariston Gomez, Jr. driving Consuelo and other respondents back to Marikina, and dropping the other respondents at their respective residences; picking up Consuelo's luggage; and Ariston Gomez, Jr. bringing Consuelo to the Manila International Airport

3. It is contrary to human experience for Consuelo and respondents not to make a prior arrangement with the notary public Jose Sebastian and instead take a gamble on his being in his office; 4. It is illogical for Consuelo to rush the execution of the donations when she was in fact planning to come back from her pleasure trip shortly, as she did; 5. The choice of a notary public from Quezon City is highly suspect, when Consuelo and respondents reside in Marikina. It is also illogical that Consuelo would have chosen a notary public whom she met only on the same day she executed the Deeds, especially when Consuelo had a regular lawyer whose notarial services she availed of only two weeks before her death WANTED TO KEEP THE DONATION CONFIDENTIAL 6. It is improbable that Consuelo paid Jose Sebastian in cash, for there is no reason for her to carry much cash in peso when she was about to leave for the United States in that same morning; 7. Maria Rita's residence certificate was obtained from Manila when she is a resident of Marikina. Also, Maria Rita obtained said residence certificate on 20 April 1979, and yet Maria Rita testified that she was surprised to know of the donation only on 21 April 1979.[84] Also suspicious are the circumstances wherein Ariston Gomez, Jr. obtained a residence certificate on 17 April 1979, when he testified that he knew of the schedule for signing only on 20 April 1979, and Consuelo had two residence certificates, as she used different ones in the Deeds of Donation and the document notarized two weeks before her death;[85] 8. If Consuelo was really frugal, she could have also made a will; 9. All the instrumental witnesses of the Deeds of Donation are biased, being themselves either donees of the other Deed of Donation, or a relative of a donee and 10. Respondents were not able to sufficiently and substantially explain the belated transfer of the properties covered by the assailed Deeds of Donation. Petitioner points to Maria Rita's testimony that the real properties were transferred after the death of Consuelo. While respondents assert that the personal properties were transferred to them prior to Consuelo's death, evidence shows otherwise. This Court does not find anything suspicious in a person wanting to transfer her properties by donation to her loved ones before leaving for abroad via an airplane. While many believe these days that taking the plane is the "safest way to travel," this has not always been the case. The fear that planes sometimes crash, now believed to be irrational, has always been at the back of the minds of air travelers. Respondents maintain in their testimonies before the RTC that the Deeds were completed to the satisfaction of Consuelo only on 20 April 1979. She allegedly wanted to have the documents signed and notarized before she left for abroad. The claim that the flight time of Consuelo was at 11:00 a.m. is hearsay thrice removed, and thus cannot be given any weight. Petitioner claims that he was told by his twelve-year old son that Consuelo was leaving at 11:00 a.m. on 21 April 1979, such son having learned about this from the maid of Consuelo when the son called Consuelo's house that day. This is in contrast to Maria Rita's positive testimony that the flight time was at 1:00 p.m. on the same day. Maria Rita joined Consuelo in this flight. As regards petitioner's claim that respondents' alleged time frame in the morning of 21 April 1979 was insufficient, this Court is not convinced. As held by the Court of Appeals, petitioner did not present any proof that it had been impossible to perform those alleged acts within three hours. Petitioner seems to unduly foreclose the possibility - one which experience tells us is not a rare occurrence at all - that donations are often resorted to in place of testamentary dispositions, often for the purpose of tax avoidance. Such properties usually remain in the donor's possession during his or her lifetime, despite the fact that the donations have already taken effect. Nevertheless, the purpose of utilizing donation as a mode to transfer property is not in issue here. In sum, all these circumstantial evidence presented by petitioner had failed to comply with the strict requirements in using circumstantial evidence, for which Section 4, Rule 133 of the Rules of Court provides:

SEC. 4. Circumstantial evidence, when sufficient. - Circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance; (b) The facts from which the inferences are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. While the above provision seems to refer only to criminal cases, it has been pointed out that in some jurisdictions, no distinction is made between civil and criminal actions as to the quality of the burden of establishing a proposition by circumstantial evidence. In such jurisdictions the rule is generally stated to be that the circumstances established must not only be consistent with the proposition asserted but also inconsistent with any other rational theory PEOPLE V. DOMINGUEZ PER CURIAM CASE 1. Prudencio Dominguez and Rodolfo Macalisang, along with Roger C. Dominguez, were charged with the murders of Regional Trial Court Judge Purita A. Boligor and of her brother Luther Avanceña. 2. Prudencio and Rodolfo were found guilty and sentenced to suffer the penalty of reclusion perpetua and to indemnify the heirs of Judge Purita A. Boligor in the amount of P30,000.00 and the heirs of Luther Avanceña of another P30,000.00, jointly and severally. 3. At the same time, the trial court dismissed the charges against Roger C. Dominguez for lack of sufficient evidence. FACTS 1. Sometime after 8:00 o'clock in the evening of 6 February 1986, that is, on the eve of the "snap" presidential election held on 7 February 1986, appellant Prudencio Dominguez then Mayor of the Municipality of Sinacaban, Misamis Occidental and his brother Roger C. Dominguez went to visit their second cousin, Judge Purita A. Boligor. 2. Judge Boligor, according to the defense, was promoting the candidacy of Mrs. Corazon C. Aquino, the opposition candidate in the presidential race. 3. Mayor Dominguez was affiliated with the "Kilusan ng Bagong Lipunan" ("KBL") and was at that time working for the re-election of former President Marcos. Mayor Dominguez and Roger arrived at Judge Boligor's house in Sinacaban in an Integrated National Police ("INP") jeep driven by Felix Am-is, a police officer detailed as security man of Mayor Dominguez. 4. Rodolfo Macalisang, brother-in-law of Mayor Dominguez, emerged on the left side of the jeep, spoke briefly with the Mayor, then stepped aside and stayed under the shadow of a citrus (calamansi) tree. 5. The Mayor and his brother Roger proceeded towards Judge Boligor's house and entered that house. 6. There they met with Judge Boligor and her brother Luther Avanceña who was then the UNIDO Chairman in Sinacaban, Misamis Occidental. 7. About ten (10) minutes later, Rodolfo Macalisang entered Judge Boligor's house with an M-16 armalite automatic rifle and bursts of gunfire were heard. 8. Shortly thereafter, Mayor Dominguez and Roger ran out of the house, got into the jeep which had been waiting for them and sped away. 9. Macalisang then came out of the house and disappeared into the darkness. Judge Boligor and Luther were found inside the house, with multiple bullet wounds in vital parts of their bodies which caused their instantaneous death. 10. PROSECUTION 10.1. ITS CASE MAINLY RESTED ON OSCAR CAGOD’S TESTIMONY 10.1.1. Who witnessed the above sequence of events from a store across the street 11. DEFENSE: ATTACKED THE CREDIBILITY AND THE TESTIMONY OF OSCAR CAGOD ON THE FOLLOWING GROUNDS: 11.1. Cagod was not a disinterested witness, having lived in the house of Judge Boligor for eighteen (18) to nineteen (19) years and having treated the Judge like his own mother 11.2. Cagod waited for four (4) months after the slaying of Judge Boligor and Luther Avanceña before he executed his sworn statement 11.3. Cagod, according to the defense, executed his sworn statement only after the police authorities had arrested him and promised him immunity from prosecution.

11.3.1. His testimony therefore came from a polluted source and should be received only with utmost caution 11.4. Cagod had been convicted, when he was twelve (12) years old, of murder, a crime involving moral turpitude and accordingly his testimony deserved no credence 11.5. The defense assailed the testimony of Cagod as being incredible in itself 12. OSCAR CAGOD HOWEVER WAS SLAIN LONG AFTER HE HAD TESTIFIED ON DIRECT EXAMINATION AND ON CROSS EXAMINATION 12.1. So far as the record here is concerned, the killer or killers of witness Oscar Cagod remain unknown 13. ANOTHER PROSECUTION WITNESS, DIOSDADO AVANCEÑA BROTHER OF THE TWO (2) DECEASED VICTIMS, MYSTERIOUSLY DISAPPEARED AFTER HIS DIRECT EXAMINATION. 13.1. He could not be recalled to testify on cross-examination and his testimony was stricken from the records by the trial judge upon motion of the defense SUPREME COURT 1. RE CAGOD’S RELATIONSHIP TO THE VICTIM 1.1. In a long line of cases, the Court has consistently held that the relationship of a witness to a party to a case does not, by itself, impair the credibility of the witness. 1.1.1.In the instant case, assuming that Cagod had indeed treated the deceased victim Judge Boligor like his own mother, that circumstance would only add to the weight of his testimony, since he would then be most interested in seeing the real killers brought to justice rather than in falsely implicating innocent persons 1.2. PEOPLE V. UY: When there is no showing of improper motive on the part of the witnesses for testifying against the accused, the fact that they are related to the victim does not render their clear and positive testimony less worthy of full faith and credit. On the contrary, their natural interest in securing the conviction of the guilty would prevent them from implicating persons other than the culprits, for otherwise, the latter would thereby gain immunity 2. RE THE FACT THAT CAGOD WAITED FOUR MONTHS AFTER THE SLAYING BEFORE EXECUTING HIS SWORN STATEMENT 2.1. The sworn statement was allegedly made by Cagod after he had been arrested by Philippine Constabulary-Criminal Investigation Service ("PC-CIS") operatives and placed under detention. 2.1.1.The defense complains that prior thereto, Cagod had not informed anyone about what he saw on the night of the slaying. 2.2. It is settled, however, that delay on the part of witnesses in informing the authorities of what they know about the occurrence of a crime will not, by itself, affect their credibility, where such delay is satisfactorily explained. 2.3. We consider that the delay of four (4) months before prosecution witness Cagod executed his sworn statement should not affect the credibility of his testimony. Cagod had understandable reasons for hesitating to report to the authorities what he had seen. 2.3.1.The accused in the instant case were clearly powerful and influential persons in Sinacaban. Prudencio Dominguez, as already noted, was Mayor of Sinacaban and Roger Dominguez was his brother. 2.3.2.As Mayor, appellant Dominguez had armed men as personal bodyguards and otherwise at his command. Appellant Rodolfo V. Macalisang was a PC Sergeant and Civilian Home Defense Force ("CHDF") Supervisor. 2.3.3.An alleged co-conspirator, Isidro Macalisang, was a Lieutenant of the Armed Forces of the Philippines ("AFP"), while Josue Vente also an alleged co-conspirator, was a Police Sergeant and Police Station Commander of Sinacaban. Cagod had been warned by Alfeo Lucing, a CHDF member and a follower of Mayor Dominguez, and by appellant Macalisang himself, not to talk about the shooting, upon pain of dire consequences 2.4. PEOPLE V. BUSTARDE: failure of the witness to go to the police immediately after the killing because she feared for her life, is a factor which is entirely human and quite understandable, and should not detract from her testimonial credit 2.5. PEOPLE V. MARMITA: the Court likewise sustained the credibility of the witness after the latter's delay in identifying the accused was explained to have been due to fear of reprisal from the accused who was known to be a powerful and influential person 2.6. PEOPLE V. BARING: A witness explained that her silence immediately after the slaying of her father was due to the fact that previous killings in the barrio had not been given proper attention by the police authorities, and this Court ruled that her silence was understandable and did not affect her credibility. The natural reluctance of most people to get involved in a criminal case, and to volunteer information about a criminal case, is a matter of judicial notice

2.7. THE TRIAL COURT THEN WAS RIGHT IN REJECTING THE FOLLOWING ARGUMENT OF THE DEFENSE: Cagod's credibility also comes under fire for the reason that it took him four months before he executed a statement revealing what he had witnessed on February 6, 1986. As the defense would have it, he should have gone straight-away to Boligor's son or to any member of the Boligor household with his story. The defense points out that instead of doing so. Cagod went away to the ABC Hall to sleep until morning. This Court, however, notes that it was not so, for Cagod related that he rushed away to inform a cousin of Boligor, Mrs. Candelaria Gamotin, and that before he reached her house, Alfeo Lucing, one of the Mayor's men, followed him warning him not to tell other stories except that Boligor was dead. 2.8. The Court believes that his conduct was as normal as that of Mrs. Gamotin who, upon learning of Boligor's death, is not shown to have roused up family, relatives and neighbors to succor the Boligors -- the record only shows that 'they cried.' Cagod's conduct was as normal as that of Dionisio Burlat, Engracia Avanceña and Diosdado Avanceña who fled the Boligor house and remained holed up in a neighbor's house till the following morning. Cagod's conduct was as normal as that of neighbors who refused to succor the Boligor household 3. RE THE ALLEGATION THAT CAGOD’S TESTIMONY CAME FROM A POLLUTED SOURCE BECAUSE THE SWORN STATEMENT HAD BEEN GIVEN AFTER HIS ARREST AND AFTER HE HAD BEEN PROMISED IMMUNITY FROM PROSECUTION 3.1. The record is bereft of any indication that Cagod was a participant or co-conspirator in the carrying out of the crimes. 3.2. Neither was there any showing that Cagod had been promised or granted immunity from prosecution in consideration of his executing the affidavit in question. 3.3. Even if he had been promised or granted immunity, that in itself is no indication of lack of truth or credibility in his testimony, considering that a person already charged in court may be discharged from the information and utilized as a state witness under certain conditions 3.4. The defense also assails a supplemental affidavit executed by witness Cagod on 31 July 1986 as baseless and untrue and designed merely to reinforce the prosecution's theory. 3.4.1.Cagod's first affidavit lacked certain details which Cagod later supplied in a supplemental affidavit after more clarificatory questions had been asked of him. 3.4.2.In People v. Salvilla, the Court held that the failure of a prosecution witness to mention the taking, an essential element of the crime of robbery, in her sworn statement did not militate against her credibility, considering that "an affidavit is almost always incomplete and inaccurate and does not disclose the complete facts for want of inquiries and suggestions." 4. RE THE ALLEGATION THAT CAGOD HAD BEEN CONVICTED OF MURDER WHEN HE WAS 12 YEARS OLD AND INSISTS THAT THEREFORE, CAGOD’S TESTIMONY DESERVES NO CREDENCE AND MUST BE CONSIDERED WITH EXTREME CAUTION 4.1. 130.20 4.2. CORDIAL V. PEOPLE: The fact of prior criminal conviction alone does not suffice to discredit a witness; the testimony of such a witness must be assayed and scrutinized in exactly the same way the testimony of other witnesses must be examined for its relevance and credibility. None of the cases cited by the appellants militates against this proposition 4.3. Oscar Cagod did not dispute his prior conviction for murder when he was only twelve (12) years old. Because of his minority, instead of being imprisoned, he was placed under the custody of Judge Boligor and her late husband, who was then Chief of Police of Sinacaban. Cagod lived with them for eighteen (18) or nineteen (19) years until Judge Boligor was slain. During that period of time, Cagod had no record of any bad or socially destructive behavior. He had in fact been of much help around the Boligors' house and had in fact worked for appellant Mayor Dominguez himself as a motorcar driver. 4.4. His testimony was not in favor of an accused "comrade," and Oscar Cagod, moreover, was obviously not a hardened criminal. 4.5. Taking account of these circumstances, the Court considers that Oscar Cagod's credibility was not put in doubt by reason alone of conviction of a crime when he was twelve (12) years old. 5. RE THE ALLEGED INCREDIBILITY OF OSCAR CAGOD’S TESTIMONY 5.1. Cagod had testified that he was in the store across the street from Judge Boligor's house on the night of the killing, because he had been about to get sample ballots of candidate Corazon C. Aquino from Judge Boligor; but when he arrived at the latter's house, Judge Boligor told him to stay across the street considering that Mayor Dominguez was coming to her house. 5.2. And so Cagod was there across the street from the Boligors' home and had an unobstructed view of the events as they unfolded outside the Boligor house which events culminated in gunfire inside the house and the Mayor and Roger speeding away from the Boligor house on the jeep which had waited for them and appellant Macalisang coming out of Judge Boligor's house and fading away into the darkness while she and her brother Luther lay dead in her house.

5.3. In addition, Oscar Cagod had testified that on the afternoon of that same day, while he was at the market place in Sinacaban, Roger Dominguez (the Mayor's brother), Josue Vente (the Police Station Commander of Sinacaban), Lt. Isidro Macalisang of AFP and the Mayor were on the terrace of the Mayor's house fronting the Sinacaban Public Market. 5.4. Josue Vente summoned him (Cagod), and so he went up the stairs to the terrace. 5.5. As he stepped on the terrace, he heard Mayor Dominguez saying angrily: "I gave money to Purita [A. Boligor] and Luther [Avanceña] so they will not work during election, they are hard-headed, better that these persons are taken care of." 5.6. Cagod further testified that Josue Vente ordered him to buy a pack of cigarettes and that when he returned to the terrace with the cigarettes, he heard Mayor Dominguez say: "This is our agreement." 5.7. Later, Mayor Dominguez ordered his men to go to Barangay Sinonok to continue their election campaign efforts and they left in four (4) motorcycles. 5.8. Cagod stated that he heard the Mayor telling Roger over a hand-held radio to follow Judge Purita Boligor and to apprise him (the Mayor) of her whereabouts periodically 5.9. It does not seem necessary for the Court to consider in detail the arguments of the defense in this connection. For the trial court did not interpret the above testimony of Oscar Cagod as showing conspiracy being hatched by the appellants and their associates while on the Mayor's terrace. 6. The evidence of the defense included ballistics reports (Exhibits "16" and "16-A") concerning twentyseven (27) empty cartridges retrieved from the scene of the crime. These twenty-seven (27) empty cartridges or shells were, according to this ballistics report, examined and compared with twenty-four (24) test cartridges submitted by the accused appellant and said to have been fired from eight (8) M-16 armalite rifles in the armory of the Sinacaban Police Force, including an M-16 rifle with Serial No. 162705 which allegedly was taken by appellant Macalisang from Wilfredo Daluz, a police officer and prosecution witness. In those reports, PC T/Sgt. Rodolfo C. Burgos, a ballistic technician who had conducted the examination, concluded that the twenty-seven (27) empty shells retrieved from the scene of the crime had not been fired from any of the weapons from which the twenty-four (24) test cartridges had been fired. According to the letter of PC Capt. Bonfilio Dacoco, Commanding Officer of the 466th Philippine Constabulary Company, Ozamis City, dated 21 February 1986, which Sgt. Burgos read into the record during the trial, the twenty-one (21) test shells had been fired from eight (8) long firearms of the Sinacaban Police Force 6.1. The defense had not shown that appellant Macalisang had no access to any M-16 rifle other than the eight (8) rifles of the Sinacaban Police Force from which the twenty-one (21) test bullets were said to have been fired. The negative allegation that Macalisang did not use any of the eight (8) M16 rifles, particularly the rifle with Serial No. 162705, does not logically lead to the conclusion that Macalisang could not have used any other weapon nor does it prove that he was not the assailant. All that the testimony of Sgt. Burgos tended to show was that the murder weapon was not among the eight (8) rifles of the Sinacaban Police Force from which the test shells were said to have been fired. 7. In addition to denying and assailing the testimony of the now deceased witness Oscar Cagod, the appellants' raised the defense of alibi. In a long line of cases, this Court has held that for the defense of alibi to prosper, it is not enough to show that the accused was somewhere else when the crime was committed, but that the accused must further demonstrate that it was physically impossible for him to have been at the scene of the crime at the time of the commission thereof. 7.1. In the instant case, the Mayor's argument was that when the shooting occurred, he was already outside the house of Judge Boligor. Clearly, therefore, it was not impossible for him to have been at the scene of the crime. In fact, he was only a few steps away, according to his own testimony, when Judge Boligor and her brother were felled by automatic fire. Appellant Rodolfo Macalisang, the latter's Chief Security Officer, and as already noted, Police Supervisor of the CHDF of Sinacaban, said that he had slept the whole night of 6 February 1986 (the eve of the "snap" presidential election) and that he knew nothing of the murder until the next morning. 7.2. This alibi was obviously a very weak one, considering that Macalisang's house was not only in the same municipality but was indeed only "about 120 meters" away from Judge Boligor's house 8. In the instant case, Cagod did not, of course, see appellant Macalisang actually shooting Judge Boligor and her brother inside her house. But Cagod did see Macalisang enter the Boligor house with a firearm, hear automatic gunfire and later saw him leave the same house with a firearm and melt away in the night. We hold that in the circumstances of this case, the testimony of prosecution witness Cagod was sufficient to produce moral certainty of guilt on the part of both appellants. Clearly, here as in most criminal cases, the issues before this Court relate to the credibility of the witnesses, particularly of Oscar Cagod and of accused-appellants. It is true that the trial judge who wrote the decision, Judge Ma. Nimfa Penaco-Sitaca, was not presiding over the trial court when Oscar Cagod rendered his testimony on direct and on cross-examination. At the same time, it was before Judge Penaco-Sitaca that the prosecution presented additional witnesses and before whom the defense presented all its evidence,

both testimonial and documentary and rested its case. Thus, Judge Penaco-Sitaca had observed the deportment of the defense witnesses and their manner of testifying during the trial. The doctrine is firmly settled that the trial court's conclusion on issues of credibility is accorded with highest respect by appellate courts. We have examined carefully the record of this case before the trial court and the briefs of both the appellants and the People and we have found nothing to justify overturning the conclusions reached by Judge Penaco-Sitaca. 9. In its decision, the trial court found the presence of treachery as well as the generic aggravating circumstances of dwelling and abuse of superior strength. CIVIL SERVICE COMMISSION VS. BELAGAN Sandoval-Gutierrez | G.R. No. 132164, October 19, 2004 |440 SCRA 578 When the credibility of a witness is sought to be impeached by proof of his reputation, it is necessary that the reputation shown should be that which existed before the occurrence of the circumstances out of which the litigation arose, or at the time of the trial and prior thereto, but not at a period remote from the commencement of the suit. This is because a person of derogatory character or reputation can still change or reform himself. 



The general rule prevailing in a great majority of jurisdictions is that it is not permissible to show that a witness has been arrested or that he has been charged with or prosecuted for a criminal offense, or confined in jail for the purpose of impairing his credibility  This view has usually been based upon one or more of the following grounds or theories: (a) that a mere unproven charge against the witness does not logically tend to affect his credibility, (b) that innocent persons are often arrested or accused of a crime, (c) that one accused of a crime is presumed to be innocent until his guilt is legally established, and (d) that a witness may not be impeached or discredited by evidence of particular acts of misconduct Significantly, the same Section 11, Rule 132 of our Revised Rules on Evidence provides that a witness may not be impeached by evidence of particular wrongful acts. Such evidence is rejected because of the confusion of issues and the waste of time that would be involved, and because the witness may not be prepared to expose the falsity of such wrongful acts.

FACTS  Two separate complaints filed respectively by Magdalena Gapuz, founder of The Mother and Child Learning Center, and Ligaya Annawi, a public school teacher at Fort Del Pilar Elementary School, against respondent Dr. Allyson Belagan, Superintendent of DECS. Magdalena charged respondent with sexual indignities and harassment while Ligaya accused him of sexual harassment and various malfeasances.  The DECS Secretary rendered a Joint Decision finding respondent guilty and ordered the latter dismissed from service. Upon appeal, the Civil Service Comission affirmed the Decision of the DECS Secretary in the Magdalena case but dismissed the complaint of Ligaya.  Respondent filed a motion for reconsideration contending that he has never been charged of any offense in his 37 years of service and by contrast Magdalena was charged with several offenses before the MTC and with the Barangay. He claimed that the numerous cases filed against Magdalena cast doubt on her character, integrity, and credibility.  The CA reversed the CSC Resolutions and dismissed Magdalena’s complaint stating that the latter is an unreliable witness, her character being questionable. o Given her aggressiveness and propensity for trouble, “she is not one whom any male would attempt to steal a kiss.” In fact, her “record immediately raises an alarm in any one who may cross her path.” o In absolving respondent from the charges, the Appellate Court considered his “unblemished” service record for 37 years. ISSUES & ARGUMENTS WHETHER COMPLAINING WITNESS MAGDALENA GAPUZ’S DEROGATORY RECORD IS SUFFICIENT TO DISCREDIT HER CREDIBILITY? (Issue formulated according to Bernas tips haha) HOLDING & RATIO DECIDENDI

NO 

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Generally, the character of a party is regarded as legally irrelevant in determining a controversy. One exception is Sec. 51 (a) 3, Rule 130 which states: o “Sec. 51. Character evidence not generally admissible; exceptions. – (a) In Criminal Cases: Xxx xxx (3) The good or bad moral character of the offended party may be proved if it tends to establish in any reasonable degree the probability or improbability of the offense charged.” The above provision pertains only to criminal cases not to administrative offenses. Even assuming that this technical rule of evidence can be applied here, still, we cannot sustain respondent’s posture. Not every good or bad moral character of the offended party may be proved under this provision. Only those which would establish the probability or improbability of the offense charged. This means that the character evidence must be limited to the traits and characteristics involved in the type of offense charged In the present administrative case for sexual harassment, respondent did not offer evidence that has a bearing on Magdalena’s chastity. What he presented are charges for grave oral defamation, grave threats, unjust vexation, physical injuries, malicious mischief, etc. filed against her. Certainly, these pieces of evidence are inadmissible under the above provision because they do not establish the probability or improbability of the offense charged. Obviously, in invoking the above provision, what respondent was trying to establish is Magdalena’s lack of credibility and not the probability or the improbability of the charge. In this regard, a different provision applies Credibility means the disposition and intention to tell the truth in the testimony given. It refers to a person’s integrity, and to the fact that he is worthy of belief. A witness may be discredited by evidence attacking his general reputation for truth, honesty or integrity o RULE 132.11. Impeachment of adverse party’s witness. –A witness may be impeached by the party against whom he was called, by contradictory evidence, by evidence that his general reputation for truth, honesty, or integrity is bad, or by evidence that he has made at other times statements inconsistent with his present testimony, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he has been convicted of an offense o Although she is the offended party, Magdalena, by testifying in her own behalf, opened herself to character or reputation attack pursuant to the principle that a party who becomes a witness in his own behalf places himself in the same position as any other witness, and may be impeached by an attack on his character or reputation o With the foregoing disquisition, the Court of Appeals is correct in holding that the character or reputation of a complaining witness in a sexual charge is a proper subject of inquiry.  This leads us to the ultimate question – is Magdalena’s derogatory record sufficient to discredit her credibility?  NO.  Most of the 22 cases filed with the MTC of Baguio relate to acts committed in the 80’s.  While the instant case was committed in 1994  Surely those cases and complaints are no longer reliable proofs of Magdalena’s character or reputation. Settled is the principle that evidence of one’s character or reputation must be confined to a time not too remote from the time in question. In other words, what is to be determined is the character or reputation of the person at the time of the trial and prior thereto, but not at a period remote from the commencement of the suit.  Additionally, respondent failed to prove that Magdalena was convicted in any of the criminal cases specified by respondent.  The general rule prevailing in a great majority of jurisdictions is that it is not permissible to show that a witness has been arrested or that he has been charged with or prosecuted for a criminal offense, or confined in jail for the purpose of impairing his credibility  This view has usually been based upon one or more of the following grounds or theories: (a) that a mere unproven charge against the witness does not logically tend to affect his credibility, (b) that innocent persons are often arrested or accused of a crime, (c) that one accused of a crime is presumed to be innocent until his guilt is legally established, and (d) that a witness may not be impeached or discredited by evidence of particular acts of misconduct  Significantly, the same Section 11, Rule 132 of our Revised Rules on Evidence provides that a witness may not be impeached by evidence of particular wrongful acts. Such evidence is rejected because of the confusion of issues and the waste of time that would be



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involved, and because the witness may not be prepared to expose the falsity of such wrongful acts. But more than anything else, what convinces us to sustain the Resolution of the CSC is the fact that it is supported by substantial evidence. As aptly pointed out by the Solicitor General, Magdalena testified in a straightforward, candid and spontaneous manner. Her testimony is replete with details, such as the number of times she and respondent inspected the pre-school, the specific part of the stairs where respondent kissed her, and the matter about her transient boarders during summer. Magdalena would not have normally thought about these details if she were not telling the truth. In reversing the CSC’s Resolutions, the Court of Appeals ruled that “there is ample evidence to show that Magdalena had a motive” in accusing respondent, i.e., to pressure him to issue a permit. o This is unconvincing. o The record shows that respondent had already issued the permit when Magdalena filed her lettercomplaint. Indeed, she had no more reason to charge respondent administratively, except of course to vindicate her honor. LAYING THE PREDICATE

PEOPLE V. MOLO (MURDER OF VENANCIO GAPISA) On the alleged inconsistencies and incredible assertions in Simeona’s testimony: - Molo: There are inconsistencies between Simeona’s statement given to the police and her testimony in open court, relative to – (a) the precise moment when she recognized Molo, and (b) whether there was a conversation between Simeona and Molo. - COURT: The alleged statement given to the police was neither offered in evidence nor shown to Simeona in order for her to explain the discrepancies. Therefore, the proper basis to impeach her testimony was not laid. At any rate, the alleged inconsistencies are inconsequential. In fact, they even heighten the credibility of Simeona. -

Molo: Simeona claimed that she was able to identify me because of the lamp which was lighted BUT she also said that the lamp was put out when the door was opened due to the sudden gust of wind. COURT: This was an inaccurate representation of Simeona’s testimony. She clarified that Venancio was already boloed when the light went out.

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Molo: It is very unusual that Simeona remained silent while witnessing the attack on her husband. COURT: Defense counsel himself, during cross-examination, provided the answer to this. Simeona was tongue-tied because she was so afraid and so shocked.

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Molo: If the victim was lying down, then he would have sustained stab wounds, not incised wounds. COURT agreed with SolGen: To simply thrust a bolo at a lying person is not as forceful as to hack him with it.

FACTS: Dominador Molo was charged with the crime of murder for the death of Venancio Gapisa. Venancio and Simeona Rapa-Gapisa are husband and wife. They live in Barrio Tambac, Romblon, in a typical hut made of bamboo flooring and dilapidated buri walling, surrounded by fruit-bearing banana plants. In the evening of April 9, 1976 at about 8pm, the spouses retired to sleep. Venancio immediately fell asleep because he was tired from clearing the fields, and besides, he drank tuba on that day. He was sleeping near the door, lying on his right side. Not long after the spouses retired, Simeona, who was still awake, heard an indistinct sound of murmur and gnashing of teeth. Although she was afraid, she peeped through the buri wall and saw Dominador Molo outside, dressed only in short pants. Molo was alone. Simeona immediately lighted a kerosene lamp and placed it on top of a trunk nearby. Simeona tried to awaken Venancio but her husband did not respond. Molo then has already climbed up [the 2 steps to] their house. Molo forcibly pushed the sliding door and entered their house. He asked Simeona where her husband was and she told him that Venancio was already asleep. When Molo found Venancio sleeping, he immediately grabbed his left wrist and started hacking at the sleeping old man Venancio.  Venancio was rudely awakened. He quickly stood up and with his right hand tried to reach for his bolo at the nearby table. However, he was not able to retaliate since Molo quickly hacked at him again.  Fearing for her own life, Simeona ran out of the house (through the door of their unfinished kitchen) to summon help from their son Alejandro Gapisa. Alejandro was at Roman Mangaring’s

house 100 meters away from the Gapisas’ house. Simeona told Alejandro that Venancio was boloed by Boslo (the name by which Molo was known in their locality). Alejandro and Roman, followed by Simeona, ran back to the Gapisa residence. When they arrived, they saw Venancio bleeding profusely and in a weakened condition. He was sitting on the floor, defecating in his pants. When Alejandro took his father in his arms, Venancio told him that he was boloed by Boslo. Roman, who was also present, inquired from Venancio as to who his assailant was and elicited the answer “Boslo”. Venancio was then rushed to the hospital and arrived at about 1:50am. He died a few minutes after. In the autopsy, it was found that Venancio died of hemorrhage from multiple incised wounds. He sustained 8 wounds – in his left arm, below his left arm, left side of the neck, below that neck wound, right arm, two in his right forearm, and in the anterior portion of the neck. Morning of April 10: An investigation was conducted. In the presence of Patrolmen Montojo and Madali, Pat. Mariño took the statement of Simeona, who identified Molo as her husband’s assailant. PC soldiers and policemen were dispatched to Molo’s house. Molo was then placed under arrest and brought to the Poblacion. When Molo was investigated at the PC barracks, he denied having committed any wrong and having gone to Venancio’s house. April 23: After the additional statements of Alejandro, Roman and Florencio Guarte (I don’t know who he is), a criminal complaint was filed in the Romblon MC. After the preliminary examination conducted by Mayor Montojo, an order confirming Molo’s detention was issued, there being a finding of reasonable ground against him. The accused waived the second stage of the preliminary investigation. ON MAY 31, 1976, Information for murder was later filed against Molo. At the trial, the prosecution presented the testimonies of the following: 1. Simeona Gapisa, Venancio’s wife – an eye-witness and ear-witness 2. Alejandro Gapisa, son of victim – went to the rescue and was able to talk to his father before the latter’s death 3. Roman Mangaring, neighbour – also able to talk to victim 4. Dr. Benedicto – performed autopsy and accomplished the Autopsy Report (Exhs. A and A-1) Molo offered alibi as his defense and presented his own testimony and that of his wife Barbara Mingo, and Patrolman Manunggay. He also presented a bolo (Exh. 1) and a scabbard (Exh. 1-a). TC DECISION: Molo was guilty beyond reasonable doubt of the crime of murder. It relied on the testimony of Simeona, who was an eye- and ear-witness, and the corroborating testimony of Alejandro and Roman, who testified on the ante-mortem statements of the victim identifying Molo as his assailant. It also appreciated the qualifying circumstance of treachery, the aggravating circumstances of dwelling, recidivism, and reiteracion, and the mitigating circumstance of voluntary surrender, and imposed the death penalty. Hence, the accused interposed the present appeal. Solicitor General Estelito P. Mendoza — who was assisted by Assistant Solicitor General Reynato Puno and Solicitors Romeo S. de la Cruz — after refuting the foregoing assignment of errors submits the following conclusions as to the nature of the offense committed, the qualifying and aggravating circumstances that attended the commission thereof, and, that the accused is not entitled to the mitigating circumstance of voluntary surrender. - Since the attack was commenced while Venancio Gapisa was asleep and therefore he could not make a defense, the killing was attended with treachery. Treachery qualifies the killing into murder. (RPC 248) - Dwelling is an aggravating circumstance because the killing was done in the house of Venancio Gapisa who had not given provocation. (Art. 14 (3), Revised Penal Code). - Other aggravating circumstances are recidivism and reiteration. (Article 14, paragraphs 9 and 19, Revised Penal Code). Accused-appellant had been previously convicted of murder, frustrated murder, grave slander, less serious physical injuries, qualified trespass to dwelling and robbery, (pp 10-12, tsn., July 12, 1976). - Accused appellant is not entitled to the mitigating circumstance of voluntary surrender. He did not surrender to the authorities. As admitted by him, he was arrested by a combined force of policemen and Philippine Constabulary agents at his residence the day after the killing, (p. 6, tsn., July 29, 1976). - Re the claim that there is no proof of motive on appellant's part. This error may be subsumed under and/or discussed together with the second, since it admits that motive need not be shown where there is positive identification, which, as We shall explain later, happened in this case. However, by way of

traverse, We find the following observations of the Solicitor General well-taken, and therefore well worth adopting. o Both Simeona Gapisa and Alejandro Gapisa ventured robbery as the motive of accusedappellant (pp. 34,44, tsn., July 12, 1976). They could not, however, state how much money was taken, from whom it was taken and how it was taken o Lest it be thought that Simeona Gapisa and Alejandro Gapisa gave false testimony, thus rendering themselves untrustworthy witnesses, it should be pointed out that when they mentioned robbery as the possible motive of accused-appellant, Alejandro Gapisa made it clear that that was only his "surmise11 (p. 34, tsn,, July 12, 1976) while Simeona Gapisa qualified her assertion with the word "maybe" (p. 44, tsn., July 12, 1976). They were not committal or categorical about the matter. o But even in the absence of proof of motive, the conviction of accused-appellant can stand inasmuch as he had been positively identified by Simeona Gapisa and by the deceased himself through his dying declaration. Motive need not be shown when there is positive identification. (P V. FELICIANO) ISSUES: 1. WON Molo was convicted upon proof beyond reasonable doubt – YES! 2. WON the identification of Molo as the assailant was proven beyond reasonable doubt – YES! ARGUMENTS+RULING+ RATIO: 1. MOLO: While proof of motive is unnecessary if the evidence of identification is convincing, there is a total want of motive on my part, as admitted by Simeona and Alejandro. COURT: This issue may be subsumed under the second issue since Molo in fact admitted that where there is positive identification, motive need not be shown. 2. MOLO: My identity as the assailant was NOT established beyond reasonable doubt because of: (a) alleged inconsistencies and incredible assertions in Simeona’s testimony (b) physical conditions which rendered it impossible for Simeona to recognize the assailant (c) Simeona’s alleged admission that she pointed to Molo as the assailant because he was a hated criminal in their place (d) The so-called dying declarations should NOT have been accorded credence because the victim could NOT have identified the assailant. COURT: The identity of Molo as the assailant was established beyond reasonable doubt. On the alleged inconsistencies and incredible assertions in Simeona’s testimony: - Molo: There are inconsistencies between Simeona’s statement given to the police and her testimony in open court, relative to – (a) the precise moment when she recognized Molo, and (b) whether there was a conversation between Simeona and Molo. - COURT: The alleged statement given to the police was neither offered in evidence nor shown to Simeona in order for her to explain the discrepancies. Therefore, the proper basis to impeach her testimony was not laid. At any rate, the alleged inconsistencies are inconsequential. In fact, they even heighten the credibility of Simeona. -

Molo: Simeona claimed that she was able to identify me because of the lamp which was lighted BUT she also said that the lamp was put out when the door was opened due to the sudden gust of wind. COURT: This was an inaccurate representation of Simeona’s testimony. She clarified that Venancio was already boloed when the light went out.

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Molo: It is very unusual that Simeona remained silent while witnessing the attack on her husband. COURT: Defense counsel himself, during cross-examination, provided the answer to this. Simeona was tongue-tied because she was so afraid and so shocked.

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Molo: If the victim was lying down, then he would have sustained stab wounds, not incised wounds. COURT agreed with SolGen: To simply thrust a bolo at a lying person is not as forceful as to hack him with it.

On the alleged conditions which rendered it impossible for Simeona to recognize Molo: - Molo: Simeona could not have recognized me because there were banana plants which obstructed the light of the moon.

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COURT: Simeona testified that the banana plants did not obstruct the light cast by the moon. In fact, SImeona had no difficulty recognizing Molo considering that their house was only elevated by two steps and at the time she saw him, he was already at the foot of the stairs. (QUARTER MOON; MAIN DOOR OF THEIR HOUSE WAS FRONTING A YARD). Simeona had no difficulty in recognizing the accused, considering that their house was only elevated by two steps and at the time she saw him through the dilapidated buri wall he was already at the foot of the stairs

On Molo’s being a hated criminal: There was no basis that Simeona only pointed to Molo because he was a hated criminal. Simeona’s testimony shows that she was very certain of Molo’s identity as her husband’s assailant. TAKE NOTE: Inconsistencies on minor details or on matters that are not of material consequence as to affect the guilt or the innocence of the accused do not detract from the credibility of the witnesses. The discordance in their testimonies on collateral matters heightens their credibility and shows that their testimonies were not coached or rehearsed. Far from being evidence of falsehood, they could justifiably be regarded as a demonstration of good faith On the dying declarations - Molo: These should not be accorded credence because Venancio could NOT have recognized me because he was asleep when attacked. - COURT: This is inaccurate. It was only at the initial stage of the attack that Venancio was asleep because, as testified to by Simeona, Venancio was awakened by the first blows of the bolo, and even stood up to try to defend himself. - The statements of Venancio, identifying Molo as his assailant to Alejandro and Roman are DYING DECLARATIONS. - Considering the NATURE and EXTENT of the WOUNDS (8), Venancio must have realized the SERIOUSNESS of his condition. It can therefore be inferred that he made the incrimination UNDER THE CONSCIOUSNESS OF IMPENDING DEATH. In fact, he died barely 4 ½ hours after he was boloed. - As shown by the testimonies of Alejandro and Roman, when they came to the house, Venancio was bleeding and had plenty of wounds. They even think that he was defecating in his pants as a result of the pain he was experiencing. o In resume then the credible and unimpeached testimonies of the victim's widow, Simeona Gapisa, who was an eye-witness to the fatal incident, and that of Alejandro Gapisa, the victim's son, and Roman Mangaring, a neighbor, who both testified on the ante-mortem statements of the victim, establish the guilt of accused-appellant beyond reasonable doubt of the crime of murder qualified by treachery, and aggravated by circumstances of dwelling, recidivism and reiteration, it appearing that accused has been convicted by final judgment of murder, frustrated murder, grave slander, less serious physical injuries, qualified trespass to dwelling a robbery, and, had served sentences for said crimes. Circumstances: affirmed the circumstances appreciated by the TC except the mitigating circumstance of voluntary surrender. The SC agreed with the SolGen in that there was no voluntary surrender since Molo was arrested at his house. The fact that he did not try to escape or did not resist arrest does NOT amount to voluntary surrender. Penalty: Considering the circumstances in this case, the imposition of the death penalty was not only justified but is required as a measure of social defense. PEOPLE V. BUDUHAN CHICO-NAZARIO, J. ACCUSED: ROBERT BUDUHAN CRIME: SPECIAL COMPLEX CRIME OF ROBBERY WITH HOMICIDE [LARRY ESSE, was robbed of his wrist watch]; and HOMICDE [ROMUALDE ALDERON; was robbed of his wallet and wrist watch] FACTS 1. On 26 August 1998, an Information was filed against Robert Buduhan, Rudy Buduhan, Boy Guinhicna, Boyet Ginyang and 3 John Does before the RTC of Maddela, Quirino, for the crime of Robbery with Homicide and Frustrated Homicide

2. On 20 October 1998, the accused filed a Motion to Quash the above information, alleging that the court did not legally acquire jurisdiction over their persons. 2.1. The accused contended they were neither caught in flagrante delicto, nor did the police have personal knowledge of the commission of the offense at the time when their warrantless arrests were effected 3. In an Order dated 25 August 1999, the RTC denied the above motion on the ground that the assertion of lack of personal knowledge on the part of the arresting officers regarding the commission of the crime is a matter of defense, which should be properly taken up during the trial 4. When arraigned on 12 January 2000, the accused Rudy Buduhan, Robert Buduhan and Boyet Ginyang, with the assistance of their counsel de oficio, entered their pleas of "Not Guilty" to the crime charged. 5. With respect to accused Boy Guinhicna, counsel for the accused informed the trial court of his death and thus moved for the dismissal of the charges against him 6. The prosecution presented the following witnesses 6.1. CHERRY ROSE SALAZAR, AN EMPLOYEE OF THE ESTABLISHMENT WHERE THE CRIME WAS COMMITTED 6.1.1.Cherry Rose was working as a guest relations officer at the RML Canteen, a beerhouse and a videoke bar 6.1.2.At about 9:00 to 10:00 p.m., there were only two groups of men inside the beerhouse 6.1.3.The group that went there first was that of the appellants, which was composed of Robert Buduhan, who was wearing a white T-shirt marked Giordano, Rudy Buduhan, who was wearing a red T-shirt, a man wearing a blue T-shirt, and another man wearing a blue T-shirt with a black jacket 6.1.4.The second group was composed of Larry Erese and his companions Gilbert Cortez (alias Abe) and Fernando Pera (alias Nanding) 6.1.5.At 10:40 p.m., while Cherry Rose was entertaining the group of Larry Erese, Robert approached them and poked a gun at Larry. 6.1.6.Immediately, the man wearing a blue T-shirt likewise approached Cherry Rose's Manager Romualde Almeron (alias Eddie), who was seated at the counter 6.1.7.The man in blue poked a gun at Romualde and announced a hold-up. 6.1.8.Larry then handed over his wristwatch to Robert. Instantaneously, all four men from Robert's group fired their guns at Larry and Romualde, which caused them to fall down. 6.1.9.Abe and Nanding ran out of the RML Canteen when the shooting occurred, and Cherry Rose hid below the table 6.2. SPO1 LEO SAQUING, A POLICE OFFICER OF THE MADDELA POLICE STATION WHO INVESTIGATED THE CRIME COMMITTES 6.2.1.Testified that on 24 July 1998, at 11:00 p.m., he and SPO4 Alex M. Gumayagay were detailed as duty investigators at the Maddela Police Station when Eddie Ancheta, a fireman, reported to them a shooting incident at the RML Canteen in Barangay Poblacion Norte, Maddela, Quirino. 6.2.2.SPO1 Saquing and SPO4 Gumayagay then proceeded to the said place. 6.2.3.About 50 meters from the scene of the crime, they encountered four male individuals who were running away therefrom 6.2.4.The policemen immediately halted the men and asked them where they came from. When they could not respond properly and gave different answers, the policemen apprehended them and brought them to the Maddela Police Station for questioning and identification. 6.2.5.Afterwards, the policemen went back to the RML Canteen to conduct an investigation therein. 6.2.6.Later that night, the witnesses of the shooting incident went to the police station and they positively pointed to the four persons, later identified as Robert Buduhan, Rudy Buduhan, Boy Guinhicna and Boyet Ginyang, as the assailants in the said incident 6.3. DR. FERNANDO MELEGRITO, THE MEDICAL EXAMINER WHO CONDUCTED THE AUTOPSIES ON THE BODIES OF THE VICTIMS 6.4. MYRNA ALMERON, THE WIDOW OF THE VICTIM 6.5. LAURENTINO ERESA, FATHER OF THE VICTIM 6.6. The policemen immediately halted the men and asked them where they came from. When they could not respond properly and gave different answers, the policemen apprehended them and brought them to the Maddela Police Station for questioning and identification. Afterwards, the policemen went back to the RML Canteen to conduct an investigation therein. Later that night, the witnesses of the shooting incident went to the police station and they positively pointed to the four persons, later identified as Robert Buduhan, Rudy Buduhan, Boy Guinhicna and Boyet Ginyang, as the assailants in the said incident 7. The defense presented the following 7.1. ROBERT BUDUHAN 7.1.1.Testified that on the evening of 24 July 1998, he was at their boarding house in Poblacion, Maddela, Quirino, together with Rudy Buduhan, Boyet Ginyang, and Boy Guinhicna.

7.1.2.The group drank one bottle of San Miguel Gin, and then went to sleep. 7.1.3.Unknown to him and Guinhicna, Rudy and Ginyang still went out to continue their drinking sessions. 7.1.4.While he was sleeping, Ginyang arrived and woke him up. Ginyang told him that they had to go to the beerhouse where he (Ginyang) and Rudy had been to because something might have happened to Rudy, as there was a fight there. 7.1.5.Robert, Ginyang and Guinhicna then proceeded to look for Rudy. 7.1.6.On their way there, at the junction of the National Highway, they encountered some policemen who asked them where they were headed. 7.1.7.When Robert said that they were looking for Rudy, the policemen told them to board the police vehicle and the group was given a ride. 7.1.8.As it turned out, Robert's group was taken to the Municipal Jail of Maddela where they were detained. 7.1.9.The policemen went out to look for Rudy and they likewise put him in jail. 7.1.10. The following day, the policemen confiscated the shirts worn by the group. 7.1.11. They were also taken to Santiago City where paraffin tests were conducted. 7.1.12. On the evening of 26 July 1998, the policemen went to the jail with three ladies who were asked to identify Robert's group. The ladies, however, did not recognize Robert and his companions. 7.2. BOYET GINYANG 7.2.1.Testified that on 24 July 1998, at 10:00 p.m., he and Rudy went to a beerhouse in Maddela, Quirino. 7.2.2.After ordering some drinks and chatting, they suddenly heard gunshots from the outside. 7.2.3.Looking towards the direction of the sound, he saw somebody fall to the ground and at that point, he and Rudy ran to get away from the place. 7.2.4.While running towards their boarding house, Rudy was stopped by an unknown armed person in a white T-shirt. 7.2.5.When Ginyang reached the boarding house, he roused appellant Robert and Guinhicna from their sleep and asked them to go with him and search for Rudy. 7.2.6.Upon reaching the junction at the National Highway, they were halted by a man who asked where they were heading. 7.2.7.After hearing their story, the man said they should wait for a vehicle that would help them look for Rudy. When the vehicle arrived, he and the others were brought to the municipal jail. Thereafter, Rudy was likewise picked up by the police and detained with the group. 7.2.8.On the morning of 25 July 1998, three ladies were brought to the municipal jail to identify his group, but the former did not recognize them. 7.2.9.On the morning of 26 July 1998, Ginyang and his three companions were brought to Santiago City where they were made to undergo paraffin testing. 7.2.10. Afterwards, the group was brought back to the municipal jail in Maddela, Quirino. Ginyang also testified that the policemen took the shirts they wore on the night of 24 July 1998, but he could not remember when they did. 7.3. POLICE INSPECTOR CHUA-CAMARAO, A FORENSIC CHEMIST OF THE PNP 7.3.1.Explained that the purpose of conducting a paraffin test was to determine the presence of gunpowder residue in the hands of a person through extraction using paraffin wax. 7.3.2.The findings and conclusion on the paraffin test that Police Inspector Chua-Camarao conducted were contained in Physical Science Report states a negative result 7.3.3.Nonetheless, the forensic chemist pointed out that the paraffin test is merely a corroborative evidence, neither proving nor disproving that a person did indeed fire a gun. The positive or negative results of the test can be influenced by certain factors, such as the wearing of gloves by the subject, perspiration of the hands, wind direction, wind velocity, humidity, climate conditions, the length of the barrel of the firearm or the open or closed trigger guard of the firearm 7.4. RUDY BUDUHAN 7.4.1.Testified that at past 10:00 p.m. of 24 July 1998, he and Ginyang went to a beerhouse. Shortly after ordering their drinks, they heard gunshots, and a person seated near the door fell. They then ran towards the road. 7.4.2.While running, an armed man wearing a white T-shirt held him, while Ginyang was able to get away. After a while, the police arrived and they took him to the Maddela police station where he was jailed along with Robert, Ginyang and Guinhicna. 7.4.3.The rest of his testimony merely corroborated the testimonies of Robert and Ginyang. 7.5 REYNALDO GUMIHO, AN EYEWITNESS WHO WAS ALLEGEDLY PRESENT AT THE SCENE OF THE CRIME SHORTLY BEFORE THE INCIDENT IN QUESTION OCCURRED

7.5.1 Testified that on the evening of 24 July 1998, he was in Poblacion, Maddela, Quirino, for a business transaction involving the sale of a 6x6 truck with a certain alias Boy. 7.5.2 At about 8:00 p.m., Reynaldo and Boy proceeded to a beerhouse in Maddela. 7.5.3 After settling with their drinks, Reynaldo heard a group of five men near their table who were conversing and he recognized from the accent of their voices that they were from Lagawe (Ifugao). 7.5.4 One of the men then told him that they should leave after finishing their drinks because the former were looking for someone who killed their relative. 7.5.5 Reynaldo disclosed that he recognized one of the persons whom he usually saw in Lagawe, and that the group was composed of relatively tall people who were mostly wearing jackets. 7.5.6 Not long after, Reynaldo and Boy left the beerhouse so as not to get involved in any trouble. Two days after he left Maddela, Reynaldo learned of the shooting incident in the beerhouse 8. TRIAL COURT: FOUND APPELLANTS GUILTY 9. COURT OF APPEALS: AFFIRMED RTC DECISION SUPREME COURT: THE APPEAL LACKS MERIT 1. Appellants insist that Cherry Rose is not a credible witness in view of the conflicting answers she gave in her sworn statement before the police, in the preliminary investigation of the case and in her testimony in open court. They contend that the trial court failed to scrutinize the entirety of the statements made by Cherry Rose vis-à-vis the shooting incident. Appellants called attention to the fact that during the preliminary investigation of the case, Cherry Rose stated that a man wearing a white Giordano T-shirt shot Larry after Larry handed his wristwatch. Thereafter, when Cherry Rose was asked whom she saw wearing a white Giordano T-shirt, she pointed to Boy Guinhicna. With respect to appellant Robert Buduhan, Cherry Rose identified him as the one who shot Orlando Pascua. In the testimony of Cherry Rose in open court, however, she identified appellant Robert as the man who was wearing a white Giordano T-shirt and who shot Larry Erese. Also, in Cherry Rose's sworn statement before the police, she narrated that the group of the appellants, consisting of five persons, was already inside the RML Canteen before the shooting incident occured. However, in her direct examination, Cherry Rose stated that appellant Robert had only three other companions. Finally, in the preliminary investigation, appellants pointed out that Cherry Rose unhesitatingly admitted that Larry Erese was her intimate boyfriend and that was why she embraced him after the latter was shot. In her cross-examination, however, Cherry Rose stated that Larry was only a customer and not her boyfriend. When questioned about her prior statement about this fact given during the preliminary investigation, Cherry Rose changed her answer and said that Larry was indeed her boyfriend 1.1. THE COURT IS NOT PERSUADED 1.2. As between statements made during the preliminary investigation of the case and the testimony of a witness in open court, the latter deserves more credence. Preliminary investigations are commonly fairly summary or truncated in nature, being designed simply for the determination, not of guilt beyond reasonable doubt, but of probable cause prior to the filing of an information in court. It is the statements of a witness in open court which deserve careful consideration 1.3. In any event, Section 13, Rule 132 of the Revised Rules on Evidence, on the matter of inconsistent statements by a witness, is revealing: 1.3.1.Section 13. How witness impeached by evidence of inconsistent statements. -- 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. 1.4. The rule that requires a sufficient foundation to be first laid before introducing evidence of inconsistent statements of a witness is founded upon common sense and is essential to protect the character of a witness. His memory is refreshed by the necessary inquiries, which enable him to explain the statements referred to and to show that they were made by mistake, or that there was no discrepancy between them and his testimony. 1.5. In the present case, the statements made by Cherry Rose during the preliminary investigation with respect to the identities of the accused were not related to her during the trial. Indeed, it is only during the appeal of this case that appellants pointed out the supposed inconsistencies in Cherry Rose's identification of the appellants in order to destroy her credibility as a witness. 1.5.1.No opportunity was ever afforded her to provide an explanation. 1.5.2.Without such explanation, whether plausible or not, we are left with no basis to evaluate and assess her credibility, on the rationale that it is only when no reasonable explanation is given by a witness in reconciling her conflicting declarations that she should be deemed impeached

1.6. In this regard, what the defense brought to Cherry Rose's attention during the trial were her contradictory statements about her romantic relationship with Larry Erese. 1.6.1.As a result of this confrontation, Cherry Rose changed her answer. 1.6.2.We rule, however, that this inconsistency relates only to an insignificant aspect of the case and does not involve a material fact in dispute. 1.7. Inasmuch as the above-stated mandatory procedural requirements were not complied with, the credibility of Cherry Rose as a witness stands unimpeached. As found by the trial court, the testimony of Cherry Rose was straightforward throughout. The appellants were not able to adduce any reason or motive for her to bear false witness against them. As a matter of fact, Cherry Rose testified during cross-examination that she did not personally know appellant Robert, and that she had first seen him only during the night when the shooting incident took place 2. RE: CHARGE: Inasmuch as the above-stated mandatory procedural requirements were not complied with, the credibility of Cherry Rose as a witness stands unimpeached. As found by the trial court, the testimony of Cherry Rose was straightforward throughout. The appellants were not able to adduce any reason or motive for her to bear false witness against them. As a matter of fact, Cherry Rose testified during crossexamination that she did not personally know appellant Robert, and that she had first seen him only during the night when the shooting incident took place 2.1. The original design must have been robbery; and the homicide, even if it precedes or is subsequent to the robbery, must have a direct relation to, or must be perpetrated with a view to consummate, the robbery. The taking of the property should not be merely an afterthought, which arose subsequently to the killing 2.2. Quite obvious from the foregoing testimony is that the act of appellant Robert and his companion in blue T-shirt of poking their guns towards Larry and Romualde, respectively, and the announcement of a hold-up were what caused Larry to give his watch to Robert. At this point, there already occurred the taking of personal property that belonged to another person, which was committed with violence or intimidation against persons. 2.3. Likewise, the intent to gain may already be presumed in this case. Animus lucrandi or intent to gain is an internal act, which can be established through the overt acts of the offender. 2.4. The unlawful act of the taking of Larry's watch at gunpoint after the declaration of a hold-up already speaks well enough for itself. No other intent may be gleaned from the acts of the appellant's group at that moment other than to divest Larry of his personal property. 2.5. The appellants acted in conspiracy in perpetrating the crimes charged. As found by the trial court, conspiracy was proved by the concurrence of the following facts: 2.5.1.that the four men were together when they entered the RML canteen; 2.5.2.that they occupied the same table; 2.5.3.that they were all armed during that time; that while the robbery was in progress, neither Rudy nor the one in blue T-shirt with black jacket prevented the robbery or the killing of the victims; 2.5.4.that all four fired their firearms when the robbery was going on and 2.5.5.that they fled all together and were seen running by the police before they were intercepted just a few meters from the scene of the crime. 2.6. ALIBI WAS WEAK. In the present case, there was absolutely no claim of any fact that would show that it was well nigh impossible for appellants to be present at the locus criminis. In fact, they all testified that they were going towards the vicinity of the area of the shooting incident when the police apprehended them. 3. Lastly, the persistent claim of appellants of the illegality of their warrantless arrest, due to the lack of personal knowledge on the part of the arresting officers, deserves scant consideration. As aptly stated in People v. Salazar, granting arguendo that appellants were illegally arrested, such arrest did not invest these eyewitness accounts with constitutional infirmity as "fruits of the poisonous tree." Considering that their conviction could be secured on the strength of the testimonial evidence given in open court, which are not inadmissible in evidence, the court finds no reason to further belabor the matter. EXCLUSION/SEPARATION OF WITNESSES DESIGN SOURCES INTERNATIONAL INC V. ERISTINGCOL SERENO, CJ FACTS 1. Design Sources International, Inc. (“Petitioner Corporation”) is a distributor of Pergo flooring. 2. Sometime in 1998, the Private Respondent bought the said brand of flooring of the “Cherry Blocked” type from the Petitioner Corporation. 2.1. The flooring was installed in her house.

3. On February 24, 2000, the Private Respondent discovered that the Pergo flooring installed had unsightly bulges at the joints and seams. 3.1. The Private Respondent informed the Petitioners of these defects and the former insisted on the repair or replacement of the flooring at the expense of the latter. 4. After several inspections of the alleged defective flooring, meetings between the parties and exchanges of correspondence, the Petitioner Corporation was given until May 31, 2000 to replace the installed flooring. 4.1. Nevertheless, on the deadline, the Petitioner Corporation did not comply with the demand of the Private Respondent. 5. PR THEN FILED A COMPLAINT FOR DAMAGES 6. On February 8, 2006, Kenneth Sy, one of the Petitioners' witnesses, testified in open court. Immediately after his testimony, the following occurred (TSN was used as evidence) 6.1. The judge asked the counsel, WHO WILL BW YOUR NEXT WITNESS 6.2. He said one Stephen Sy 6.3. However such person was in the courtroom pala all this time 6.4. Judge contends na narinig na niya sinabi ni Kenneth 6.5. Counsel apologized 6.6. Counsel said that they’ll present Stephen during the next hearing pa 6.7. Fortun objects, contends na Stephen witnessed Kenneth’s cross examination 6.8. Posadas sorta surrenders, says na he’ll just present another witness 7. On 22 March 2006, petitioners moved for a reconsideration of the Order, but their motion was denied by the RTC on 1 June 2006 on the ground that 7.1. “The Court deems it no longer necessary to allow Stephen Sy from testifying [sic] when a different witness could testify on matters similar to the intended testimony of the former.” 7.2. The Order also stated that “to allow Stephen Sy from testifying [sic] would work to the disadvantage of the plaintiff as he already heard the testimony of witness Kenneth Sy.” 8. COURT OF APPEALS 8.1. Found no sufficient basis that herein respondent previously asked for the exclusion of other witnesses 8.2. It was the duty of respondent’s counsel to ask for the exclusion of other witnesses, without which, there was nothing to prevent Stephen from hearing the testimony of petitioners’ other witnesses 8.3. NEVERTHELESS, it upheld, PEOPLE V. SANDAL; the appellate court ruled that the RTC did not commit grave abuse of discretion in issuing the assailed Orders considering that petitioners failed to show that Stephen’s testimony would bolster their position. 8.4. Moreover, from the Manifestation of petitioners’ counsel, it appears that petitioners had another witness who could give a testimony similar to Stephen’s. SUPREME COURT: THE PETITION IS IMPRESSED WITH MERIT. 1. The controversy arose from the objection of respondent’s counsel to the presentation of Stephen as petitioners’ witness considering that Stephen was already inside the courtroom during the presentation of witness Kenneth Sy (Kenneth). 1.1. However, as aptly found by the CA, respondent failed to substantiate her claim that there was a prior request for the exclusion of other witnesses during the presentation of Kenneth. 1.2. Respondent did not even allege in her Comment that there was any such request. 2. SECTION 15, RULE 132 2.1. SEC. 15. Exclusion and separation of witnesses. — On any trial or hearing, the judge may exclude from the court any witness not at the time under examination, so that he may not hear the testimony of other witnesses. The judge may also cause witnesses to be kept separate and to be prevented from conversing with one another until all shall have been examined. 3. Excluding future witnesses from the courtroom at the time another witness is testifying, or ordering that these witnesses be kept separate from one another, is primarily to prevent them from conversing with one another. 3.1. The purpose is to ensure that the witnesses testify to the truth by preventing them from being influenced by the testimonies of the others. 3.2. In other words, this measure is meant to prevent connivance or collusion among witnesses. 3.3. The efficacy of excluding or separating witnesses has long been recognized as a means of discouraging fabrication, inaccuracy, and collusion. 3.4. However, without any motion from the opposing party or order from the court, there is nothing in the rules that prohibits a witness from hearing the testimonies of other witnesses. 4. There is nothing in the records of this case that would show that there was an order of exclusion from the RTC, or that there was any motion from respondent’s counsel to exclude other witnesses from the courtroom prior to or even during the presentation of the testimony of Kenneth.

5. 6. 7.

8.

9.

10.

4.1. We are one with the CA in finding that under such circumstances, there was nothing to prevent Stephen from hearing the testimony of Kenneth. 4.2. Therefore, the RTC should have allowed Stephen to testify for petitioners. The RTC and the CA, however, moved on to determine the materiality of the testimony of Stephen, which became their basis for not allowing the latter to testify. Applying Sandal, the CA ruled that the absence of a showing of how his testimony would bolster the position of petitioners saved the judgment of the RTC in issuing the order of exclusion. The application of Sandal is misplaced. 7.1. Contrary to the present case, in Sandal there was a court order for exclusion which was disregarded by the witness. 7.2. The defiance of the order led to the exercise by the court of its discretion to admit or reject the testimony of the witness who had defied its order. 7.3. Again, in this case, there was no order or motion for exclusion that was defied by petitioners and their witnesses. 7.4. Thus, the determination of the materiality of Stephen’s testimony in relation to the strengthening of petitioners’ defense was uncalled for. Without any prior order or at least a motion for exclusion from any of the parties, a court cannot simply allow or disallow the presentation of a witness solely on the ground that the latter heard the testimony of another witness. 8.1. It is the responsibility of respondent’s counsel to protect the interest of his client during the presentation of other witnesses. 8.2. If respondent actually believed that the testimony of Kenneth would greatly affect that of Stephen’s, then respondent’s counsel was clearly remiss in his duty to protect the interest of his client when he did not raise the issue of the exclusion of the witness in a timely manner. Respondent is bound by the acts of her counsel, including mistakes in the realm of procedural techniques. 9.1. The exception to the said rule does not apply herein, considering that there is no showing that she was thereby deprived of due process. 9.2. At any rate, respondent is not without recourse even if the court allows the presentation of the testimony of Stephen, considering the availability of remedies during or after the presentation of witnesses, including but not limited to the impeachment of testimonies. Therefore, this Court finds that the RTC committed grave abuse of discretion in not allowing Stephen to testify notwithstanding the absence of any order for exclusion of other witnesses during the presentation of Kenneth’s testimony.

REFERENCE TO MEMORANDUM FIGUERAS V. SERRANO ROMUALDEZ, J. This is an action to collect the balance of professional fees, for medical services amounting to P52,229, with P7,310 interest, plus P5,000 damages, and the costs of the action. CASE 1. Besides filing a general denial and a special defense, the defendant sets up two counterclaims: 1.1. One for P10,000 damages on account of the plaintiff's having prevented the partition of the estate of the deceased Leandro Serrano among his heirs, by means of a groundless, unreasonable claim of fees; and 1.2. Another for P200,000 damages also, on the ground that Primitiva Serrano lost her eyesight completely, due to lack of diligence and precaution on the plaintiff's part in not having given her proper treatment, in consequence of which the patient suffered hardships and moral depression. 2. CFI ILOCOS SUR: ORDERED SERRANO TO PAY DR. FIGUERAS FACTS 1. According to the complaint, the services for which compensation is here claimed consist in medical attendance during the years 1919, 1920, and 1921, on Primitiva Serrano as well as on her father Leandro Serrano, for which purpose the plaintiff, who at that time lived in Vigan, had to make many trips to the town of Cabugao, 27 kilometers distant from where said patients lived. 2. Leandro Serrano is now dead, and the complaint here is directed against his estate, represented by the defendant administrator.

3. It is also alleged therein that Leandro Serrano promised to pay for plaintiff's trips to the town of Cabugao at the rate of P4 per kilometer. 4. The principal evidence adduced to prove this promise is the letter Exhibit C which is alleged to be addressed to the plaintiff and signed by Leandro Serrano. 4.1. The defendant assails the authenticity of this letter and the signature at the bottom thereof. 4.1.1.Indeed, we notice as to the context that the typewritten characters therein are very similar to those of Exhibit 2 (p. 184 of the record) which is a letter written by the plaintiff's brother. 5. The difference we observe in the typewriting of these documents consists in that in Exhibit C the type is more worn, thus suggesting the fact that it was written later. 5.1. The prior date appearing in it does not preclude this conclusion, for any date, past or future, may at a given time be written on any document. 5.2. A careful examination of Exhibit C reveals some details which bear out the presumption that it was written on the same typewriter as document Exhibit 2. 5.3. And the changes and erasures which have not been satisfactorily explained, likewise argue against the admissibility of this exhibit. SUPREME COURT: INADMISSIBLE A. The remarkable resemblance almost identical, in point of size and contour, between the signature in Exhibit G and the one in Exhibit J, as may be clearly seen by placing one upon the other, casts serious doubts on, its genuineness. B. It seems hardly probable that Leandro Serrano should have been able to write two signatures so exactly alike, not only in the curvature at the base of the letters, and in the form of the small as well as the capital letters, but also in the distance between them, the space they occupy, and the slant of the strokes of the whole signature as well as of each letter thereof, and even in the length, contour, and other details of the paraph. C. As these details strongly indicate that Exhibit C is not genuine, we cannot consider it as reliable proof in this case. a. The burden of proof was on plaintiff to show, at least by a preponderance of evidence, that this document was admissible evidence of record, and, in this case, the preponderance militates against the document. THEREFORE, it cannot be held proven, therefore, that Leandro Serrano promised to pay the plaintiff P4 for every kilometer of his trips to Cabugao on his medical visits. A. The preponderance of admissible evidence of record is to the effect that the cost of each of such visits to Cabugao is about P25. Considering plaintiff's social standing, he was entitled to use an automobile as the most adequate mode of transportation. DEFENDANTS: Exhibits Q and R are objected to by the defendant as not duly identified and as incompetent evidence SUPREME COURT: It is true that the witnesses Parto and Florendo testified that they recognize the writing in said notebooks as plaintiff's, but there is no proof that the notes in these exhibits were written with the knowledge and consent, or even in the presence, of Leandro Serrano. Neither does it appear that such notes were made at the time of the visits and professional services referred to therein, or that they were written about that time. And the appearance of the writing in these books (Exhibits Q and R) does not show that such notes were made therein on different occasions and at different periods of time, considering the noticeable uniformity of the handwriting and of the color of the ink used (in Exhibit Q), in almost all the entries, notwithstanding the fact that these entries cover a period of over one year. It is absolutely necessary for the admission of such entries to prove that they were made at or about the time of the transaction to which they relate. Once this is proven they may be admitted to corroborate the testimony of the person who made them. "Written memoranda made at or about the time of the transaction to which they relate are sometimes admitted in evidence to corroborate the testimony of the person by whom they were made." (22 C. J., 896.) But the fact is that Exhibits Q and R not only do not meet the requirement as to being contemporaneous, but it appears that the plaintiff who made the memoranda noted therein did not even testify concerning them.

These exhibits cannot, therefore, be taken into consideration to determine the number of visits made by the plaintiff nor that of the times he rendered professional services. The appellee alleges that said entries are corroborated by the witnesses Florendo, Formoso, Figueras and Arcebal, the first three of whom, chauffeurs who successively took the plaintiff to Cabugao, among themselves fixed the total number of trips to Cabugao at about one hundred, and Arcebfid testified that at the time in question, he saw the plaintiff stop in front of the municipal building of Cabugao two or three times a week, going in the direction of Leandro Serrano's house. The number of times testified to by these witnesses, is, as it could not otherwise be as inferred from their own testimony, mere conjecture, without sufficient assurance of approximation, much less exactness. What these witnesses definitely established and wherein they corroborate the notebooks Exhibits Q and R, is that the plaintiff made trips to Cabugao, a fact admitted by the defendant. But as to the number of said trips, which is the point in question, the testimony of these witnesses, with all its uncertainty on this point, cannot be considered as either direct or corroborative evidence. We therefore find that the plaintiff's evidence does not supply data legally competent to ascertain the number of times he was in Cabugao to render professional services to Primitiva Serrano. According to the defendant's evidence consisting of Exhibits 6, 7, 9 and 10, identified by Pedro Suero and Simeon Serrano, the plaintiff made twenty-six medical visits to Primitiva Serrano in Cabugao, and ninety in Vigari. Not only are these Exhibits 6, 7, 9 and 10, identified, but it appears from the testimony of Pedro Suero, that he, as former clerk to Leandro Serrano, was enjoined to note down in Exhibits 6 and 7, which are Bristol Almanacs for the years 1919 and 1920, the name of Gregorio Figueras, whenever said physician paid a professional visit to Primitiva Serrano in Cabugao. And it appears from the testimony of Simeon Serrano that he used to record plaintiff's medical visits to witness' sister, Primitiva Serrano, in Vigan, in the almanacs Exhibits 9 and 10 with the initial 6 and the letters "a. m." or "p.m." according as they were made in the morning or afternoon. [THEY USED ALMANACS AS LOGBOOKS TO RECORD MEDICAL VISITS, 26 LAG DAW) Unlike the entries in Exhibits Q and R, those of Exhibits 6, 7, 9 and 10, are competent evidence, because, in addition to being sufficiently identified by the persons who made them at the time of the visits, their appearance, details, and the fact that they were made at the time of the visits so recorded, render them competent corroborative evidence under the rule above quoted from Corpus Juris (22 C. J., 896) and in accordance with the provision of section 279 of our present Code of Civil Procedure. Consequently we conclude that the number of visits proven in these proceedings is 26 in Cabugao and 90 in Vigan, and that the evidence shows that the plaintiff is entitled to receive P25 for each visit to Primitiva Serrano in Cabugao and P2 for each visit to her in Vigan, or a sum total of P830, as professional fees. It has not been sufficiently proven that these amounts do not include the fees for the treatment given on such visits, nor that the reasonable price of electrical treatments, injections and eye treatments (which in themselves are not sufficiently established) is P15 for each electrical treatment, P5 for each injection, and P2 for each eye treatment. It does not appear sufficiently established that the plaintiff rendered medical service to Leandro Serrano. With regard to the appellant's allegation of lack of jurisdiction, the lower court could take judicial notice of the administration proceedings in which the estate was represented by the defendant and when that court proceeded to hear this case on appeal from the committee on claims, it must be presumed that in doing so, taking judicial notice of the legality of the appeal, it acted in the performance of its duty, and within the scope of its jurisdiction. (Sec. 334, Nos. 14 and 15, Code of Civil Procedure.) And this presumption not having been rebutted by evidence to the contrary, it sufficiently proves the allegation in the first paragraph of the complaint relative to. the perfection of the present appeal from the committee on claims. We agree with the court a quo that the defendant's counterclaims have not been sufficiently proven. Having rendered our decision on the determining points of the case, we deem it unnecessary for the purposes of this decision to take up the other assignments of error in detail. It appearing that the plaintiff admitted, and that the trial judge so held without any objection from said plaintiff, that the latter has already been paid the sum of P1,025 on account of the fees here in question, and as the sum of P830 as above stated to which he is thus entitled is less than that, said fees have already been amply satisfied.

PEOPLE V. ODENCIO AQUINO, J. DOCTRINE: A dying declaration may be oral or written. If oral, the witness, who heard it, may testify thereto without the necessity, of course, of reproducing exactly the words of the decedent, if he is able to give the substance thereof. An unsigned dying declaration may be used as a memorandum by the witness who took it down. Florencio Odencio and Guiamelon Mama appealed from the decision of the Court of First Instance of North Cotabato, finding them guilty of two separate crimes of murder, sentencing each of them to two reclusion perpetuas, and ordering them to pay P12,000 to the heirs of Prowa Talib and P12,000 to the heirs of Kadir Oranen FACTS 1. At about seven o'clock in the evening of June 29, 1968, while Prowa Talib (Palua Talip), a forty-year old farmer, was in the yard of his house located at Barrio Simsiman, Pigcawayan, North Cotabato, handing a pot of rice to his wife, Setie Mamalintao, who was near the stairs, he was felled down by a volley of shots 2. Setie rushed to the aid of her husband. When she looked in the direction where the gunshots emanated, she saw Guiamelon Mama holding a gun near a coconut tree around six brazas away. 3. Then, she heard another volley of shots. She saw Florencio Odencio (Poren), also holding a gun near another coconut tree around ten meters away in the yard of the house of her neighbor, Daongan Karaing. She noticed that Kadir Oranen, who was nearby, had fallen to the ground around three arms' length from Daongan's house. Kadir died instantly. 4. Setie had known for a long time Florencio and Guiamelon who were friends and neighbors also residing in Barrio Simsiman. Setie and Guiamelon had cultivated adjacent farmlands. 5. While Setie was comforting her husband, he allegedly told her that he was going to die. 6. He directed her to remember what had happened to him and that they had seen Guiamelon Mama and Poren armed with guns. 7. ANTECEDENT EVENT: Prior to that shooting incident, Prowa Talib had reported to the barrio captain that Florencio Odencio had stolen his lumber. 8. The two assailants fled westward. 8.1. At the time the incident occurred, Japal Rongot was on his way to Talib's house. 8.2. He encountered Guiamelon and Joseph Odencio with both of whom he was well acquainted. 8.3. He asked Guiamelon why there were gunshots but the latter did not make any reply. 8.4. Upon reaching Talib's house, Rongot saw Setie crying and holding Talib on her lap. 8.5. Setie told him that Talib was shot by Guiamelon and she pointed to him Oranen's corpse which was about two arms' length from Talib. 9. Ngelam Towa (Nilan Tuwa), another neighbor and the uncle of Setie, heard the gunshots on the occasion in question. 9.1. He hastened to Talib's house. 9.2. Setie told him that Guiamelon Mama had shot Talib. 9.3. She advised her uncle not to use his flashlight because Guiamelon was still in the vicinity. 9.4. Setie also told Towa that Florencio Odencio had shot Oranen. Towa left Talib's house in order to get assistance from his father-in-law. 9.5. While crossing the trail, his flashlight focused on Florencio Odencio with two companions leaving the scene of the crime. 10. Policemen arrived at Talib's house. Setie informed them that Guiamelon was the gunwielder. 10.1. They brought Talib to a medical clinic where he was interrogated by Patrolman Joaquin Sanada. 10.2. Talib told Sañada that his assailants were Guiamelon, Florencio Odencio and Florencio's father, Joseph Odencio. Due to the critical condition of Talib (nagaagonto), he was not able to sign his dying declaration (Exh. B) as taken down by Patrolman Sañada. Talib was brought to the hospital. 10.3. He died on the following day. 11. In that unsigned antemortem declaration, Talib revealed that Florencio Odencio suspected that he and Oranen had masterminded the theft of Joseph Odencio's two carabaos, and that, on the other hand, Guiamelon suspected Talib of having stolen the carabao of Damiog, the father-in-law of Guiamelon. 11.1. It was stated further in the same dying declaration that Talib had told Patrolman Sañada that he wanted to sign it but that he could not do so because of the wound in his arm.

12. 13.

14.

15.

16.

17.

11.2. Talib also articulated his belief that he was going to die because he could hardly breathe and his wound was painful. On July 1, 1968 or within forty-eight hours after taking Talib's unsigned antemortem statement, Sañada executed an affidavit reciting the circumstances surrounding the taking thereof. 12.1. Sañada testified in court on Talib's dying declaration. On July 1, 1968, a complaint for double murder was filed in the municipal court against Guiamelon, Florencio Odencio, Joseph Odencio and Angelico Aposaga, Poren's father-in-law. 13.1. They waived the second stage of the preliminary investigation. 13.2. On September 19, 1968, an information was filed in the Court of First Instance against Guiamelon, Florencio Odencio and Joseph Odencio. 13.3. The trial court acquitted Joseph and convicted only Florencio and Guiamelon. In his defense, Florencio, denied that he shot Talib and that he had a misunderstanding with Oranen and Talib with both of whom he was acquainted. 14.1. Florencio testified that he was in his house when the shooting occurred. He was arrested on the following day, June 30, 1968. 14.2. He surmised that he was implicated in the case because he did not support Mayor Doruelo, the incumbent mayor, and, instead, he voted for Estañol, the candidate of the Liberal Party. 14.3. Florencio's alibi was corroborated by his wife and his brother-in-law, Antonio Cesar. The other accused adopted the same line of defense. 15.1. He declared that he was also in his house when Talib was shot; that he had no misunderstanding with Talib, who is his father's brother-in-law, being the brother of his stepmother, his father's second wife; that he was arrested while he was attending Talib's funeral, and that he came to know his co-accused Florencio Odencio only in jail. The accused presented Samuel Jubilan, a Constabulary sergeant, who testified that he was present when Patrolman Sañada interrogated Talib and that the latter declared that he was not able to recognize his assailant because it was dark. 16.1. Sañada said he did not know of that interrogation made by Jubilan. In disbelieving the alibis of Florencio and Guiamelon, the trial court observed that the accused were indubitably identified as the assailants in Talib's dying declarations to his wife and Patrolman Sañada. Setie Mamalintao in her statement to the police declared that she was able to recognize Florencio and Guiamelon because there was a "big torch" in front of her house and Karaing's house 17.1. The trial court noted that there "was a good amount of lighting in the yard of Prowa Talib because he was preparing" supper when he was shot and that Setie was able to recognize the accused because she had been acquainted with them for a long time. As stated above, two witnesses saw the accused in the vicinity of Talib's house shortly after the shooting. Therefore, the contention of appellants' counsel de oficio that they had not been sufficiently identified as the killers cannot be sustained.

SUPREME COURT Another contention of counsel de oficio is that the trial court erred in finding that Guiamelon and Odencio conspired to kill Talib and Oranen. That contention is belied by the evidence. Guiamelon and Odencio were seen pacing back and forth near Talib's house on the day of the incident (No. 27, Exh. 1). They shot the two victims in the same place and almost simultaneously, thus showing a coordination of efforts and community of design. On leaving the scene of the crime, they proceeded in the same direction (westward). They were animated by the same motive, which was to liquidate the victims because the latter allegedly stole the carabaos of the relatives of the accused. The record does not disclose any reason why Setie Mamalintao and Patrolman Sañada would frame up the appellants. The manner in which they shot the victims shows treachery. The shooting was not the product of momentary impulse. There was alevosia because the two malefactors, taking advantage of the cover of night, stationed themselves in a place where they could shoot the victims with impunity without any risk to themselves or without exposing themselves to any retaliation since the victims did not expect to be assaulted at that time and place. Appellants' counsel further contends that they were convicted on the basis of the wife's uncorroborated testimony "which is open to suspicion due to inherent improbabilities" and "motives to falsify the truth". That contention is not correct. Talib's antemortem statement fortifies the testimony of his widow, an eyewitness. We have stressed that two other witnesses saw the appellants leaving the scene of the crime.

Moreover, Talib's dying declaration was sufficiently proven. The rule is that a dying declaration may be oral or written. If oral, the witness, who heard it, may testify thereto without the necessity, of course, of reproducing exactly the words of the decedent, if he is able to give the substance thereof. An unsigned dying declaration may be used as a memorandum by the witness who took it down. (See 5 Moran's Comments on the Rules of Court, 1970 Ed., pp. 315-316.) We are satisfied that the guilt of the appellants was proven beyond reasonable doubt. As they were coconspirators, they are each liable for the two murders. There being no modifying circumstances concomitant with the commission of the two assassinations, the trial court properly penalized each murder with reclusion perpetua (Arts. 64[1] and 248, Revised Penal Code). The trial court's judgment is affirmed with the sole modification that the two appellants should be held solidarily liable for the two indemnities of P12,000 each. In the service of the two reclusion perpetuas, the forty-year limit fixed in article 70 of the Revised Penal Code should be observed. Costs against the appellants.

BORROMEO V. CA BARREDO, J. The provision applies only when it is shown beforehand that there is need to refresh the memory of the witness. Furthermore, the memorandum used to refresh the memory of the witness does not constitute evidence… for the simple reason that the witness has just the same to testify on the basis of refreshed memory. [Borromeo v. CA]. Sec 10, rule 132 applies only when it is shown beforehand that there is need to refresh the memory of the witness. 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. A witness cannot be more credible just because he supports his open-court declaration with a memorandum of the same facts. This type of memoranda are very easy to fabricate, and should be received with caution. This is doubly true when the witness stands to gain materially or otherwise from the admission of such evidence. PERTINENT PARTS The appellant urges that Exhibits A-2, A-3, B-3 and C-5, which, according to Crispina Rallos Alcantara, were her notations allegedly representing the deductions made by Matias Aznar for advance interest, attorney's fees and miscellaneous expenses, are corroborative of her testimony that the transactions in controversy were really loans with mortgages. - THESE exhibits weak and unsatisfactory as evidence of the facts asserted. - They are clearly self-serving, as they were admittedly prepared by the declarant herself (2 Wharton's Criminal Evidence, Sec. 690; 2 Jones on Evidence, 2d., Ed., Sec. 895), who was a daughter of the deceased Rallos and who cannot, therefore, be said to be disinterested witness. - With respect to Exhibit J, the option to repurchase Lots Nos. 462 and 7032, also relied upon by the appellant as allegedly corroborative of the testimony of Crispina Rallos Alcantara that all the transactions in question were loans secured by mortgages, it is to be noted that said exhibit has to do with the two lots mentioned therein and none other. - Certainly, it is no proof that Rallos was similarly given a written option to redeem any of the lots covered by Exhibits B and C, which, according to Crispina Rallos Alcantara, was taken back by Matias Aznar but never renewed. - The evidence shows that the period fixed in Exhibit J expired without the lots involved being redeemed. The thrust of the per curiam resolution is that the plaintiff Borromeo was able to prove that the defendants Aznars "retained part of the purchase price" stipulated in the deeds in question and that there was unusual inadequacy of said purchase price thereby justifying the use in this case of the presumption created by Article 1602 of the Civil Code whenever said circumstances are shown (Paragraphs 1 and 4 of said article). According to the Court of Appeals, these circumstances were proven through, among other evidence, the testimony of plaintiff Crispina Rallos Alcantara, the daughter of the deceased Simeon Rallos, who declared that she was present on all occasions when the three transactions in dispute took place between her father and Matias Aznar and that while thus listening to their conversations she took down notes of the various amounts mentioned by them and the respective purposes thereof such as interest, attorney's fees, other

obligations to be paid out of the money being borrowed by her father etc., which notes were identified at the trial as Exhibits A-2, A-3, B-3 and C-5. - More specifically, the Court of Appeals held that because the testimony of the witness Alcantara was corroborated by these notes, it should be believed, from which it can be gathered that it was only because said notes were considered by it as inadmissible that in its original decision, said testimony and notes were deemed to be without evidentiary value for being self-serving. "While it is true," says the appealed resolution, "that in our decision rendered in this case, we held that the notations or memoranda of Crispina Rallos Alcantara marked as Exhibits A-2, A-3, B-3 and C-5 were self-serving and unsatisfactory as evidence of the facts asserted (Decision, p. 24), the same, however, as now correctly contended by plaintiff-appellant in his motion for reconsideration, may be considered as constituting part of the res gestae, and as such, are admissible in evidence to show the nature of the contracts in question and the relation of the parties involved." (p. 18, Annex C of the petition.) It is this ruling upholding the admissibility of said notes and memoranda as parts of the res gestae that the Aznars contend to be a legal error committed by the Court of Appeals. - We cannot see how the disputed notes and memoranda can be considered in any sense as part of the res gestae as this matter is known in the law of evidence. It must be borne in mind, in this connection, that Crispina was not a party to the transaction in question. Only Simeon Rallos, on the one hand, and Matias Aznar, if she is to be believed, or Emmanuel and Alma Aznar, as the documents show, on the other, were the parties thereto. The record does not reveal why Crispina was with her father at the time, hence, there can be no basis for holding that she actually took part in the transaction. That she allegedly took notes thereof while there present made her at best only a witness not a party. It cannot be said, therefore, that her taking down of her alleged notes, absent any showing that she was requested or directed by the parties to do so or that the parties, more particularly the Aznars, who are being sought to be bind by them, knew what she was doing, constitute part of the transaction, the res gestae itself. If such alleged taking of notes by Crispina has to be given any legal significance at all, the most that it can be is that it is one circumstance relevant to the main fact in dispute. It other words it could be at the most be only circumstantial evidence. The trouble however is that the admission of said notes and memoranda suffers from a fatal defect. No witness other than Crispina has testified as to the veracity of her testimony relative to her alleged notes and memoranda. Not even her husband who, according to her, was present on one of the occasions in issue, was called to testify. It cannot be denied that Crispina is interested in the outcome of this case. In the words of the Court of Appeals itself in its original decision, "her testimony cannot be considered as absolutely unbiased or impartial", hence "unreliable and insufficient to justify the reformation of the instruments in question." Such being the case, how can the notes and memoranda in dispute and any weight to her testimony, when she herself created them? Surely, they cannot have anymore credibility than her own declarations given under oath in open court. -

The extensive and repeated arguments of the parties relative to the issue of whether or not selfserving are very interesting and illuminating, but We feel they are rather off tangent. The notes supposedly prepared by witness Alcantara during the transaction between her father and the Aznars do not partake at all of the nature of hearsay evidence. If anything, they constitute memoranda contemplated in Section 10 of Rule 132 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."

-

As may be observed, this provision applies only when it is shown beforehand that there is need to refresh the memory of the witness, which is not the case here. o Nowhere in the record is there any indication that Alcantara needed during her testimony the aid of any memorandum in respect to the matters contained in the notes in dispute. o Besides, under the above provision, 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.

o

o o

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, which is exactly the case of Crispina Alcantara.

PART OF TRANSACTION EAGLERIDGE V. CAMERON LEONEN, J. All documents mentioned in a Deed of Assignment transferring the credit of the plaintiff in a pending litigation should be accessible to the defendant through a Motion for Production or Inspection of Documents under Rule 27 of the Rules of Court. Litigation is not a game of skills and stratagems. It is a social process that should allow both parties to fully and fairly access the truth of the matters in litigation. FACTS 1. Petitioners Eagleridge Development Corporation (EDC), and sureties Marcelo N. Naval (Naval) and Crispin I. Oben (Oben) are the defendants in a collection suit initiated by Export and Industry Bank (EIB) through a Complaint (2-5-05) 2. By virtue of a Deed of Assignment dated August 9, 2006, EIB transferred EDC's outstanding loan obligations of P10,232,998.00 to respondent Cameron Granville 3 Asset Management, Inc. (Cameron), a special purpose vehicle 2.1. The DEED OF ASSIGNMENT: Defined terms used but not otherwise defined herein have the meaning given to them in the LSPA 3. Thereafter, Cameron filed its Motion to Substitute/Join EIB dated November 24, 2006 GRANTED 4. On February 22, 2012, petitioners filed a Motion for Production/Inspection of the Loan Sale and Purchase Agreement (LSPA) dated April 7, 2006 referred to in the Deed of Assignment 5. CAMERON’S COMMENT: petitioners have not shown “good cause” for the production of the LSPA and that the same is allegedly irrelevant to the case a quo 6. PETITIONER’S REPLY: Petitioners explained that the production of the LSPA was for “good cause”. They pointed out that the claim of Cameron is based on an obligation purchased after litigation had already been instituted in relation to it. They claimed that pursuant to Article 1634 of the New Civil Code on assignment of credit, the obligation subject of the case a quo is a credit in litigation, which may be extinguished by reimbursing the assignee of the price paid therefor, the judicial costs incurred and the interest of the price from the day on which the same was paid. 6.1. As petitioners' alleged loan obligations may be reimbursed up to the extent of the amount paid by Cameron in the acquisition thereof, it becomes necessary to verify the amount of the consideration from the LSPA, considering that the Deed of Assignment was silent on this matter. 7. TC: DENIED EAGLERIDGE’S MOTION 7.1. It ruled that there was failure to show “good cause” for the production of the LSPA and failure to show that the LSPA is material or contains evidence relevant to an issue involved in the action. 7.2. MR: Petitioners argued that the application of Article 1634 of the Civil Code is sanctioned by Section 12, Article III of Republic Act No. 9182, otherwise known as the Special Purpose Vehicle Law 7.2.1.SECTION 12. Notice and Manner of Transfer of Assets. – (a) No transfer of NPLs to an SPV shall take effect unless the FI concerned shall give prior notice, pursuant to the Rules of Court, thereof to the borrowers of the NPLs and all persons holding prior encumbrances upon the assets mortgaged or pledged. Such notice shall be in writing to the borrower by registered mail at their last known address on file with the FI. The borrower and the FI shall be given a period of at most ninety (90) days upon receipt of notice, pursuant to the Rules of Court, to restructure or renegotiate the loan under such terms and conditions as may be agreed upon by the borrower and the FIs concerned.

(b) The transfer of NPAs from an FI to an SPV shall be subject to prior certification of eligibility as NPA by the appropriate regulatory authority having jurisdiction over its operations which shall issue its ruling within forty-five (45) days from the date of application by the FI for eligibility. (c) After the sale or transfer of the NPLs, the transferring FI shall inform the borrower in writing at the last known address of the fact of the sale or transfer of the NPLs. 7.3. MR DENIED 8. In its Resolution dated August 29, 2012, the CA (Third Division) dismissed the petition for lack of petitioner Oben's verification and certification against forum shopping and failure to attach a copy of the complaint. SUPREME COURT: THE PETITION IS IMPRESSED WITH MERIT The question was whether respondent had acquired a valid title to the credit, i.e., EDC’s outstanding loan obligation, and whether it had a right to claim from petitioners. In fact, petitioners had maintained in their motions before the trial court the nullity or non-existence of the assignment of credit purportedly made between respondent and EIB (the original creditor). As respondent Cameron’s claim against the petitioners relies entirely on the validity of the Deed of Assignment, it is incumbent upon respondent Cameron to allow petitioners to inspect all documents relevant to the Deed, especially those documents which, by express terms, were referred to and identified in the Deed itself. The LSPA, which pertains to the same subject matter – the transfer of the credit to respondent is manifestly useful to petitioners’ defense. Furthermore, under Section 17, Rule 132 of the 1997 Rules of Court, when part of a writing or record is given in evidence by one party, the whole of the same subject may be inquired into by the other, and when a detached writing or record is given in evidence, any other writing or record necessary to its understanding may also be given in evidence. Since the Deed of Assignment was produced in court by respondent and marked as one of its documentary exhibits, the LSPA which was made a part thereof by explicit reference and which is necessary for its understanding may also be inevitably inquired into by petitioners. In this light, the relevance of the LSPA sought by petitioners is readily apparent. Fair play demands that petitioners must be given the chance to examine the LSPA. Besides, we find no great practical difficulty, and respondent did not allege any, in presenting the document for inspection and copying of the petitioners. Incidentally, the legal incidents of the case a quo necessitates the production of said LSPA. Section 13 of the SPV Law clearly provides that “in the transfer of the Non-Performing Loans (NPLs), the provisions on subrogation and assignment of credits under the New Civil Code shall apply.” The law does not exclude the application of Article 1634 of the New Civil Code to transfers of NPLs by a financial institution to a special purpose vehicle. Settled is the rule in statutory construction that "when the law is clear, the function of the courts is simple application." Besides, it is within the power of an SPV to restructure, condone, and enter into other forms of debt settlement involving NPLs. Also, Section 19 of the SPV Law expressly states that redemption periods allowed to borrowers under the banking law, the rules of court and/or other laws are applicable. Hence, the equitable right of redemption allowed to a debtor under Article 1634 of the Civil Code is applicable. Therefore, as petitioners correctly pointed out, they have the right of legal redemption by paying Cameron the transfer price plus the cost of money up to the time of redemption and the judicial costs. Certainly, it is necessary for the petitioners to be informed of the actual consideration paid by the SPV in its acquisition of the loan, because it would be the starting point for them to negotiate for the extinguishment of their obligation. As pointed out by the petitioners, since the Deed of Assignment merely states “For value received”, the appropriate information may be supplied by the LSPA. It is self-evident that in order to be able to intelligently match the price paid by respondent for the acquisition of the loan, petitioner must be provided with the necessary information to enable it to make a reasonably informed proposal. Because of the virtual refusal and denial of the production of the LSPA, petitioners were never accorded the chance to reimburse respondent of the consideration the latter has paid. Consequently, this Court finds and so holds that the denial of the Motion for Production despite the existence of “good cause,” relevancy and materiality for the production of the LSPA was unreasonable and

arbitrary constituting grave abuse of discretion on the part of the trial court. Hence, certiorari properly lies as a remedy in the present case. Discretionary acts will be reviewed where the lower court or tribunal has acted without or in excess of its jurisdiction, where an interlocutory order does not conform to the essential requirements of law and may reasonably cause material injury throughout subsequent proceedings for which the remedy of appeal will be inadequate, or where there is a clear or serious abuse of discretion. The exercise of discretion pertaining to discovery will be set aside where there is abuse, or the trial court’s disposition of matters of discovery was improvident and affected adversely the substantial rights of a party. After all, the discretion conferred upon trial courts is a sound discretion which should be exercised with due regard to the rights of the parties and the demands of equity and justice. Indeed, the insistent refusal of respondent to produce the LSPA is perplexing and unacceptable to this Court. Respondent even asserts that if petitioner EDC thinks that the LSPA will bolster its defense, then it should secure a copy of the document from the Bangko Sentral ng Pilipinas and not from respondent, because allegedly the document was not marked by respondent as one of its exhibits. In light of the general philosophy of full discovery of relevant facts, the unreceptive and negative attitude by the respondent is abominable. The rules on discovery are accorded broad and liberal interpretation precisely to enable the parties to obtain the fullest possible knowledge of the issues and facts, including those known only to their adversaries, in order that trials may not be carried on in the dark. Undoubtedly, the trial court had effectively placed petitioners at a great disadvantage inasmuch as respondent effectively suppressed relevant documents related to the transaction involved in the case a quo. Furthermore, the remedies of discovery encouraged and provided for under the Rules of Court to be able to compel the production of relevant documents had been put to naught by the arbitrary act of the trial court. It must be remembered that “litigation is essentially an abiding quest for truth undertaken not by the judge alone, but jointly with the parties. Litigants, therefore, must welcome every opportunity to achieve this goal; they must act in good faith to reveal documents, papers and other pieces of evidence material to the controversy.” Courts, as arbiters and guardians of truth and justice, must not countenance any technical ploy to the detriment of an expeditious settlement of the case or to a fair, full and complete determination on its merits. CONCEPT OF AUTHENTICATION PATULA 1. Go’s testimony was pure hearsay 2. So was Guivencan’s 3. The documents were also unauthenticated 4. Could the prosecution in Patula have done something para mapapasok yung laman ng unauthenticated documents? 4.1. Assuming authenticated na yung evidence 4.1.1.To authenticate the receipts, the prosecution could have presented the customers (presumably sila nakakita ng paggawa ni Patula ng receipt) 4.2. Yes, under 130.43. Pero dapat mafulfill lahat ng requisites. PATULA V. PEOPLE (ESTAFA): In the course of Guivencan’s direct-examination, petitioner’s counsel interposed a continuing objection on the ground that the figures entered in Exhibits B to YY and their derivatives, inclusive, were hearsay because the persons who had made the entries were not themselves presented in court. With that, petitioner’s counsel did not anymore cross-examine Guivencan, apparently regarding her testimony to be irrelevant because she thereby tended to prove falsification, an offense not alleged in the information. Guivencan conceded having no personal knowledge of the amounts actually received by petitioner from the customers or remitted by petitioner to Footlucker’s. This means that persons other than Guivencan prepared Exhibits B to YY and their derivatives, inclusive, and that Guivencan based her testimony on the entries found in the receipts supposedly issued by petitioner and in the ledgers held by Footlucker’s corresponding to each customer, as well as on the unsworn statements of some of the customers. Accordingly, her being the only witness who testified on the entries effectively deprived the RTC of the reasonable opportunity to validate and test the veracity and reliability of the entries as evidence of petitioner’s misappropriation or conversion through cross-examination by petitioner. The denial of that

opportunity rendered thee ntire proof of misappropriation or conversion hearsay, and thus unreliable and untrustworthy for purposes of determining the guilt or innocence of the accused. To elucidate why the Prosecution’s hearsay evidence was unreliable and untrustworthy, and thus devoid of probative value, reference is made to Section 36 of Rule 130, Rules of Court, a rule that states that a witness can testify only to those facts that she knows of her personal knowledge; that is, which are derived from her own perception, except as otherwise provided in the Rules of Court. The personal knowledge of a witness is a substantive prerequisite for accepting testimonial evidence that establishes the truth of a disputed fact. A witness bereft of personal knowledge of the disputed fact cannot be called upon for that purpose because her testimony derives its value not from the credit accorded to her as a witness presently testifying but from the veracity and competency of the extrajudicial source of her information. IN PATULA, WHY DIDN’T THE LAWYER FILE A DEMURRER TO EVIDENCE: kasi madedelay lang if nag-demurrer siya tapos na-deny….. FACTS 1. Petitioner was charged with estafa under an information filed in the Regional Trial Court (RTC) in Dumaguete City a. The accused, a saleswoman of Footlucker’s Chain of Stores, Inc., Dumaguete City, misappropriated, misapplied, and converted the proceeds of sales amounting to Php131, 286.97 for her own use to the detriment of her employer. 2. Petitioner pled not guilty to the offense charged in the information. At pre-trial, no stipulation of facts was had, and petitioner did not avail herself of plea bargaining. 3. FIRST WITNESS: LAMBERTO GO (BRANCH MANAGER) a. Petitioner was an employee of Footlucker’s, starting as a saleslady in 1996 until she became a sales representative; b. As a sales representative she was authorized to take orders from wholesale customers coming from different towns (like Bacong, Zamboanguita, Valencia, Lumbangan and Mabinay in Negros Oriental, and Siquijor), and to collect payments from them; c. She could issue and sign official receipts of Footlucker’s for the payments, which she would then remit; d. She would then submit the receipts for the payments for tallying and reconciliation; e. At first her volume of sales was quite high, but later on dropped, leading him to confront her; that she responded that business was slow; that he summoned the accounting clerk to verify; f. The accounting clerk discovered erasures on some collection receipts; that he decided to subject her to an audit by company auditor Karen Guivencan; g. He learned from a customer of petitioner’s that the customer’s outstanding balance had already been fully paid although that balance appeared unpaid in Footlucker’s records; and that one night later on, petitioner and her parents went to his house to deny having misappropriated any money of Footlucker’s and to plead for him not to push through with a case against her, promising to settle her account on a monthly basis; and that she did not settle after that, but stopped reporting to work i. On March 7, 2002, Go’s cross examination, re-direct examination and re-cross examination were completed. 4. SECOND WITNESS: KAREN GUIVENCAN (AUDITOR) a. Go had requested her to audit petitioner after some customers had told him that they had already paid their accounts but the office ledger had still reflected outstanding balances for them; b. She first conducted her audit by going to the customers in places from Mabinay to Zamboanguitain Negros Oriental, and then in Siquijor; c. She discovered in the course of her audit that the amounts appearing on the original copies of receipts in the possession of around 50 customers varied from the amounts written on the duplicate copies of the receipts petitioner submitted to the office; that upon completing her audit, she submitted to Go a written report denominated as “List of Customers Covered by Saleswoman LERIMA PATULA w/ Differences in Records as per Audit Duly Verified March 1620, 1997” marked as Exhibit A; and d. Based on the report, petitioner had misappropriated the total amount of P131,286.92 5. During Guivencan’s stint as a witness, the Prosecution marked the ledgers of petitioner’s various customers allegedly with discrepancies as Exhibits B to YY and their derivatives, inclusive. Each of the ledgers had a first column that contained the dates of the entries, a second that identified the invoices by the number, a third that stated the debit, a fourth that noted the credit (or the amounts paid), and a fifth that summed the balances (debit minus credit). Only 49 of the ledgers were formally offered and admitted by the RTC because the 50th ledger could no longer be found.

6. In the course of Guivencan’s direct-examination,petitioner’s counsel interposed a continuing objection on the ground that the figures entered in Exhibits B to YY and their derivatives, inclusive, were hearsay because the persons who had made the entries were not themselves presented in court a. With that, petitioner’s counsel did not anymore cross-examine Guivencan, apparently regarding her testimony to be irrelevant because she thereby tended to prove falsification, an offense not alleged in the information. 7. The prosecution then formally offered its documentary exhibits, inclusive the confirmations sheets used by Guivencan in auditing the accounts served by petitioner, and Guivencan’s so-called Summary (Final Report) of Discrepancies 8. After the Prosecution rested its case, the Defense decided not to file a demurrer to evidence although it had manifested the intention to do so, and instead rested its case. The Prosecution and Defense submitted their respective memoranda, and submitted the case for decision 9. RTC: Petitioner guilty beyond reasonable doubt of estafa PETITIONER insists that the RTC’s judgment “grossly violated [her] Constitutional and statutory right to be informed of the nature and cause of the accusation against her because, while the charge against her is estafa under Art. 315, par. 1 (b) of the Revised Penal Code, the evidence presented against her and upon which her conviction was based, was falsification, an offense not alleged or included in the Information under which she was arraigned and pleaded not guilty,” and that said judgment likewise “blatantly ignored and manifestly disregarded the rules on admission of evidence in that the documentary evidence admitted by the trial court were all private documents, the due execution and authenticity of which were not proved in accordance with Sec. 20 of Rule 132 of the Revised Rules on Evidence.” SUPREME COURT: THE PETITION IS MERITORIOUS 1. FAILURE OF INFORMATION TO ALLEGE FALSIFICATION DID NOT VIOLATE PETITIONER’S RIGHT TO BE INFORMED OF THE NATURE AND CAUSE OF THE ACCUSATION a. The importance of the proper manner of alleging the nature and cause of the accusation in the information should never be taken for granted by the State. An accused cannot be convicted of an offense that is not clearly charged in the complaint or information. To convict him of an offense other than that charged in the complaint or information would be violative of the Constitutional right to be informed of the nature and cause of the accusation. b. Indeed, the accused cannot be convicted of a crime, even if duly proven, unless the crime is alleged or necessarily included in the information filed against him. c. ELEMENTS OF ESTAFA i. That the offender received money, goods or other personal property in trust, or on commission, or for administration, or under any other obligation involving the duty to make delivery of, or to return, the same; ii. That the offender misappropriated or converted such money, goods or other personal property, or denied his part in its receipt; iii. That the misappropriation or conversion or denial was to the prejudice of another; and iv. That the offended party made a demand on the offender for the delivery or return of such money, goods or other personal property d. According to the theory and proof of the Prosecution, petitioner misappropriated or converted the sums paid by her customers, and later falsified the duplicates of the receipts before turning such duplicates to her employer to show that the customers had paid less than the amounts actually reflected on the original receipts. i. She committed the falsification in order to conceal her misappropriation or conversion. Considering that the falsification was not an offense separate and distinct from the estafa charged against her, the Prosecution could legitimately prove her acts of falsification as its means of establishing her misappropriation or conversion as an essential ingredient of the crime duly alleged in the information. In that manner, her right to be informed of the nature and cause of the accusation against her was not infringed or denied to her e. RTC: It would seem that the accused is of the idea that because the crime charged in the [i]nformation is merely [e]stafa and not [e]stafa [t]hru [f]alsification of documents, the prosecution could not prove falsification. Such argumentation is not correct. Since the information charges accused only of misappropriation pursuant to Art. 315, par. (1b) of the Revised [P]enal Code, the Court holds that there is no necessity of alleging the falsification in the Information as it is not an element of the crime charged.

Distinction should be made as to when the crimes of Estafa and Falsification will constitute as one complex crime and when they are considered as two separate offenses. The complex crime of Estafa Through Falsification of Documents is committed when one has to falsify certain documents to be able to obtain money or goods from another person. In other words, the falsification is a necessary means of committing estafa. However, if the falsification is committed to conceal the misappropriation, two separate offenses of estafa and falsification are committed. In the instant case, when accused collected payments from the customers, said collection which was in her possession was at her disposal. The falsified or erroneous entries which she made on the duplicate copies of the receipts were contrived to conceal some amount of her collection which she did not remit to the company 2. Did the Prosecution adduce evidence that proved beyond reasonable doubt the guilt of petitioner for the estafa charged in the information? a. To establish the elements of estafa earlier mentioned, the Prosecution presented the testimonies of Go and Guivencan, and various documents consisting of: (a) the receipts allegedly issued by petitioner to each of her customers upon their payment, (b) the ledgers listing the accounts pertaining to each customer with the corresponding notations of the receipt numbers for each of the payments, and (c) the confirmation sheets accomplished by Guivencan herself b. The problem with the prosecution’s evidence is that only Guivencan testified on the entries which effectively deprived the RTC of the reasonable opportunity to validate and test the veracity and reliability of the entries as evidence of petitioner’s misappropriation or conversion through cross-examination by petitioner. The denial of that opportunity rendered the entire proof of misappropriation or conversion hearsay, and thus unreliable and untrustworthy for purposes of determining the guilt or innocence of the accused. c. To elucidate why the Prosecution’s hearsay evidence was unreliable and untrustworthy, and thus devoid of probative value, reference is made to Section 36 of Rule 130, Rules of Court, a rule that states that a witness can testify only to those facts that she knows of her personal knowledge; that is, which are derived from her own perception, except as otherwise provided in the Rules of Court. The personal knowledge of a witness is a substantive prerequisite for accepting testimonial evidence that establishes the truth of a disputed fact. A witness bereft of personal knowledge of the disputed fact cannot be called upon for that purpose because her testimony derives its value not from the credit accorded to her as a witness presently testifying but from the veracity and competency of the extrajudicial source of her information. d. In case a witness is permitted to testify based on what she has heard another person say about the facts in dispute, the person from whom the witness derived the information on the facts in dispute is not in court and under oath to be examined and cross-examined. The weight of such testimony then depends not upon the veracity of the witness but upon the veracity of the other person giving the information to the witness without oath. The information cannot be tested because the declarant is not standing in court as a witness and cannot, therefore, be cross-examined. i. Thus, the rule against hearsay testimony rests mainly on the ground that there was no opportunity to cross-examine the declarant. The testimony may have been given under oath and before a court of justice, but if it is offered against a party who is afforded no opportunity to cross-examine the witness, it is hearsay just the same e. Moreover, the theory of the hearsay rule is that when a human utterance is offered as evidence of the truth of the fact asserted, the credit of the assert or becomes the basis of inference, and, therefore, the assertion can be received as evidence only when made on the witness stand, subject to the test of cross-examination. However, if an extrajudicial utterance is offered, not as an assertion to prove the matter asserted but without reference to the truth of the matter asserted, the hearsay rule does not apply. For example, in a slander case, if a prosecution witness testifies that he heard the accused say that the complainant was a thief, this testimony is admissible not to prove that the complainant was really a thief, but merely to show that the accused uttered those words. This kind of utterance is hearsay in character but is not legal hearsay. The distinction is, therefore, between (a) the fact that the statement was made, to which the hearsay rule does not apply, and (b) the truth of the facts asserted in the statement, to which the hearsay rule applies f. To address the problem of controlling inadmissible hearsay as evidence to establish the truth in a dispute while also safeguarding a party’s right to cross-examine her adversary’s witness, the Rules of Court offers two solutions. The first solution is to require that all the witnesses in a judicial trial or hearing be examined only in court under oath or affirmation.

g. The second solution is to require that all witnesses be subject to the cross-examination by the adverse party. (Section 6, Rule 132 of the Rules of Court) h. Based on the foregoing considerations, Guivencan’s testimony as well as Exhibits B to YY, and their derivatives, inclusive, must be entirely rejected as proof of petitioner’s misappropriation or conversion 3. LACK OF PROPER AUTHENTICATION RENDERED EXHIBITS B TO YY AND THEIR DERIVATIVES INADMISSIBLE AS JUDICIAL EVIDENCE a. There is no question that Exhibits B to YY and their derivatives were private documents because private individuals executed or generated them for private or business purposes or uses. Considering that none of the exhibits came under any of the four exceptions, they could not be presented and admitted as evidence against petitioner without the Prosecution dutifully seeing to their authentication in the manner provided in Section20 of Rule 132 b. The Prosecution attempted to have Go authenticate the signature of petitioner in various receipts c. As the excerpts indicate, Go’s attempt at authentication of the signature of petitioner on the receipt with serial number FLDT96 No. 20441 (a document that was marked as Exhibit A, while the purported signature of petitioner thereon was marked as Exhibit A-1) immediately fizzled out after the Prosecution admitted that the document was a mere machine copy, not the original. Thereafter, as if to soften its failed attempt, the Prosecution expressly promised to produce at a later date the originals of the receipt with serial number FLDT96 No. 20441 and other receipts. But that promise was not even true, because almost in the same breath the Prosecution offered to authenticate the signature of petitioner on the receipts through a different witness (though then still unnamed). As matters turned out in the end, the effort to have Go authenticate both the machine copy of the receipt with serial number FLDT96 No. 20441 and the signature of petitioner on that receipt was wasteful because the machine copy was inexplicably forgotten and was no longer even included in the Prosecution’s Offer of Documentary Evidence. d. Guivencan exclusively relied on the entries of the unauthenticated ledgers to support her audit report on petitioner’s supposed misappropriation or conversion, revealing her lack of independent knowledge of the veracity of the entries, as the following excerpts of her testimony show e. Go and Guivencan had not themselves seen the execution or signing of the documents, the Prosecution surely did not authenticate Exhibits B to YY and their derivatives conformably with the aforequoted rules. Hence, Exhibits B to YY, and their derivatives, inclusive, were inescapably bereft of probative value as evidence i. MALAYAN INSURANCE V. PNWC: Under Section 20, Rule 132, Rules of Court, before a private document is admitted in evidence, it must be authenticated either by the person who executed it, the person before whom its execution was acknowledged, any person who was present and saw it executed, or who after its execution, saw it and recognized the signatures, or the person to whom the parties to the instruments had previously confessed execution thereof. 4. THE LEDGERS CANNOT BE CONSIDERED AS ENTRIES IN THE REGULAR COURSE OF BUSINESS (130.43) a. The requisites were not met The Court has to acquit petitioner for failure of the State to establish her guilt beyond reasonable doubt. The Court reiterates that in the trial of every criminal case, a judge must rigidly test the State’s evidence of guilt in order to ensure that such evidence adhered to the basic rules of admissibility before pronouncing an accused guilty of the crime charged upon such evidence. The failure of the judge to do so herein nullified the guarantee of due of process of law in favor of the accused, who had no obligation to prove her innocence. Her acquittal should follow

PROOF OF PRIVATE DOCUMENT Aznar v. Citibank (2007) – Austria-Martinez, J. SUMMARY: Aznar, holder of credit card from Citibank, used his card to purchase plane tickets to Bali in Ingtan Agency. The card was dishonored and Aznar was forced to buy the tickets in cash while the Agency made a comment about swindlers who are trying to use blacklisted cards. Aznar filed a claim for damages against Citibank, alleging that his card was dishonored because Citibank blacklisted it. To prove his claim, he presented a computer print-out issued to him by Ingtan which shows that the card was declared over the

limit. Citibank denied that it blacklisted the said card and presented its Warning Cancellation Bulletins contain list of cancelled cards where Aznar’s card was not listed. The SC ruled in favor of Citibank and ruled that Aznar’s evidence is inadmissible because it was not authenticated. DOCTRINE: Under sec. 43, rule 130, the following conditions are required: 1. the person who made the entry must be dead, or unable to testify; 2. the entries were made at or near the time of the transactions to which they refer; 3. the entrant was in a position to know the facts stated in the entries; 4. the entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; and 5. the entries were made in the ordinary or regular course of business or duty. FACTS: 1. Emmanuel B. Aznar, a known businessman in Cebu, is a holder of credit card issued by Citibank with a credit limit of P150,000.00. As he and his wife, Zoraida, planned to take their two grandchildren on an Asian tour, Aznar made a total advance deposit of P485,000.00 with Citibank with the intention of increasing his credit limit toP635,000.00. 2. Aznar used the credit card to purchase plane tickets to Kuala Lumpur (worth 237K). He then claims that when he presented his Mastercard in some establishments in Malaysia, Singapore and Indonesia, the same was not honored. And when he tried to use the same in Ingtan Tour and Travel Agency (Ingtan Agency) in Indonesia to purchase plane tickets to Bali, it was again dishonored for the reason that his card was blacklisted by Citibank. Such dishonor forced him to buy the tickets in cash. He further claims that his humiliation caused by the denial of his card was aggravated when Ingtan Agency spoke of swindlers trying to use blacklisted cards. 3. Aznar filed a complaint for damages against Citibank claiming that Citibank fraudulently or with gross negligence blacklisted his Mastercard which forced him, his wife and grandchildren to abort important tour destinations and prevented them from buying certain items in their tour and that he suffered mental anguish, serious anxiety, wounded feelings, besmirched reputation and social humiliation due to the wrongful blacklisting of his card. To prove that Citibank blacklisted, he presented a computer print-out, denominated as ON-LINE AUTHORIZATIONS FOREIGN ACCOUNT ACTIVITY REPORT, issued to him by Ingtan Agency (Exh. "G") with the signature of one Victrina Elnado Nubi (Nubi) which shows that his card in question was "DECL OVERLIMIT" or declared over the limit. 4. Citibank denied that it blacklisted Aznar’s card. To prove this, Credit Card Dept. Head Flores presented Warning Cancellation Bulletins which contained the list of its cancelled cards covering the period of Aznar’s trip. Aznar’s card was not in the list. 5. RTC – dismissed Aznar’s complaint for lack of merit  Between the computer print-out presented by Aznar and the Warning Cancellation Bulletins presented by Citibank, the latter had more weight as their due execution and authenticity were duly established by Citibank 6. RTC on MR – reversed.  Exh. "G" was printed out by Nubi in the ordinary or regular course of business in the modern credit card industry and Nubi was not able to testify as she was in a foreign country and cannot be reached by subpoena; taking judicial notice of the practice of automated teller machines (ATMs) and credit card facilities which readily print out bank account status, Exh. "G" can be received as prima facie evidence of the dishonor of Aznar’s Mastercard 7. CA – Reinstated the 1st RTC decision.  Aznar had no personal knowledge of the blacklisting of his card and only presumed the same when it was dishonored in certain establishments; such dishonor is not sufficient to prove that his card was blacklisted by Citibank; Exh. "G" is an electronic document which must be authenticated pursuant to Section 2, Rule 5 of the Rules on Electronic Evidence 26 or under Section 20 of Rule 132 of the Rules of Court 27 by anyone who saw the document executed or written; Aznar, however, failed to prove the authenticity of Exh. "G", thus it must be excluded ISSUES: WON Exh. G, which is the basis of Aznar’s claim, is admissible RULING: NO, Exh. G. was not authenticated RATIO: -

Aznar in his testimony admitted that he had no personal knowledge that his Mastercard was blacklisted by Citibank and only presumed such fact from the dishonor of his card. The dishonor of Aznar’s Mastercard is not sufficient to support a conclusion that said credit card was blacklisted by Citibank, especially in view of Aznar’s own admission that in other merchant establishments in Kuala Lumpur and Singapore, his Mastercard was accepted and honored.

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As to the ON-LINE AUTHORIZATION FOREIGN ACCOUNT ACTIVITY REPORT (exh. G)  Its authenticity and due execution were not established, hence, it is inadmissible  Aznar, who testified on the authenticity of Exh. "G," did not actually see the document executed or written, neither was he able to provide evidence on the genuineness of the signature or handwriting of Nubi, who handed to him said computer print-out.  Even if examined under the Rules on Electronic Evidence which, is being invoked by Aznar in this case, the authentication of Exh. "G" would still be found wanting. Rule 5 sec. 21 provides for the manner of authentication. Aznar claims that his testimony complies with par. (c), i.e., it constitutes the "other evidence showing integrity and reliability of Exh. "G" to the satisfaction of the judge." However, Aznar’s testimony that the person from Ingtan Agency merely handed him the computer printout and that he thereafter asked said person to sign the same cannot be considered as sufficient to show said print-out’s integrity and reliability. Aznar failed to demonstrate how the information reflected on the print-out was generated and how the said information could be relied upon as true Aznar invokes sec. 43 of rule 130, ROC, to support exh. G. Under this rule, however, the following conditions are required: 1. the person who made the entry must be dead, or unable to testify; 2. the entries were made at or near the time of the transactions to which they refer; 3. the entrant was in a position to know the facts stated in the entries; 4. the entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; and 5. the entries were made in the ordinary or regular course of business or duty. there appears on the computer print-out the name of a certain "Victrina Elnado Nubi" and a signature purportedly belonging to her, and at the left dorsal side were handwritten the words "Sorry for the delay since the records had to be retrieved. Regards. Darryl Mario." It is not clear if it was Nubi who encoded the information stated in the print-out and was the one who printed the same. The handwritten annotation signed by a certain Darryl Mario even suggests that it was Mario who printed the same and only handed the print-out to Nubi. The identity of the entrant, required by the provision above mentioned, was therefore not established. Neither did petitioner establish in what professional capacity did Mario or Nubi make the entries, or whether the entries were made in the performance of their duty in the ordinary or regular course of business or duty. And even if Exh. "G" is admitted as evidence, it only shows that the use of the credit card of petitioner was denied because it was already over the limit. The Court is also perplexed that stated on Exh. "G" is the amount of "6,289,195.10" opposite petitioner's account number, which data, petitioner did not clarify. As plaintiff in this case, it was incumbent on him to prove that he did not actually incur the said amount which is above his credit limit. The Court gave credence to the Warning Cancellation Bulletins presented by Citibank Due execution and authentication of these have been duly established which shows that Aznar’s card was never blacklisted While the Court commiserates with Aznar for whatever undue embarrassment he suffered when his credit card was dishonored by Ingtan Agency, especially when the agency’s personnel insinuated that he could be a swindler trying to use blacklisted cards, the Court cannot grant his present petition as he failed to show by preponderance of evidence that Citibank breached any obligation that would make it answerable for said suffering. Court considered this as damnum absque injuria

DISPOSITIVE: Petition DENIED. TAN SHUY V. MAULAWIN SERENO, J. FACTS

1 Section 2. Manner of authentication. – Before any private electronic document offered as authentic is received in evidence, its authenticity must be proved by any of the following means: (a) by evidence that it had been digitally signed by the person purported to have signed the same; (b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for authentication of electronic documents were applied to the document; or (c) by other evidence showing its integrity and reliability to the satisfaction of the judge.

1. Petitioner Tan Shuy is engaged in the business of buying copra and corn in the Fourth District of Quezon Province. 1.1. According to Vicente Tan (Vicente), son of petitioner, whenever they would buy copra or corn from crop sellers, they would prepare and issue a pesada in their favor. 1.1.1.A pesada is a document containing details of the transaction, including the date of sale, the weight of the crop delivered, the trucking cost, and the net price of the crop. 1.2. He then explained that when a pesada contained the annotation "pd" on the total amount of the purchase price, it meant that the crop delivered had already been paid for by petitioner 2. Maulawin, respondent in this case, is a farmer-businessman engaged in the buying and selling of copra and corn. 2.1. On 10 July 1997, Tan Shuy extended a loan to Guillermo in the amount of P420,000. In consideration thereof, Guillermo obligated himself to pay the loan and to sell lucad or copra to petitioner 3. Most of the transactions involving Tan Shuy and Guillermo were coursed through Elena Tan, daughter of petitioner. 3.1. She served as cashier in the business of Tan Shuy, who primarily prepared and issued the pesada. 3.2. In case of her absence, Vicente would issue the pesada. 3.3. He also helped his father in buying copra and granting loans to customers (copra sellers). 3.3.1.According to Vicente, part of their agreement with Guillermo was that they would put the annotation "sulong" on the pesada when partial payment for the loan was made. 4. Petitioner alleged that despite repeated demands, Guillermo remitted only P23,000 in August 1998 and P5,500 in October 1998, or a total of P28,500. 4.1. He claimed that respondent had an outstanding balance of P391,500. 4.2. Thus, convinced that Guillermo no longer had the intention to pay the loan, petitioner brought the controversy to the Lupon Tagapamayapa. 4.2.1.When no settlement was reached, petitioner filed a Complaint before the Regional Trial Court (RTC). 5. MAULAWIN’S ARGUMENTS: 5.1. He had already paid the subject loan in full. According to him, he continuously delivered and sold copra to petitioner from April 1998 to April 1999 5.2. Respondent said they had an oral arrangement that the net proceeds thereof shall be applied as installment payments for the loan. 5.3. He alleged that his deliveries amounted to P420,537.68 worth of copra. 5.3.1.To bolster his claim, he presented copies of pesadas issued by Elena and Vicente. He pointed out that the pesadas did not contain the notation "pd," which meant that actual payment of the net proceeds from copra deliveries was not given to him, but was instead applied as loan payment. 5.3.2.He averred that Tan Shuy filed a case against him, because petitioner got mad at him for selling copra to other copra buyers. 6. TRIAL COURT: the net proceeds from Guillermo's copra deliveries - represented in the pesadas, which did not bear the notation "pd" - should be applied as installment payments for the loan. It gave weight and credence to the pesadas, as their due execution and authenticity was established by Elena and Vicente, children of petitioner 6.1. However, the court did not credit the net proceeds from 12 pesadas, as they were deliveries for corn and not copra. 6.1.1.According to the RTC, Guillermo himself testified that it was the net proceeds from the copra deliveries that were to be applied as installment payments for the loan. 6.1.2.Thus, it ruled that the total amount of P41,585.25, which corresponded to the net proceeds from corn deliveries, should be deducted from the amount of P420,537.68 claimed by Guillermo to be the total value of his copra deliveries. 6.1.3.Accordingly, the trial court found that respondent had not made a full payment for the loan, as the total creditable copra deliveries merely amounted to P378,952.43, leaving a balance of P41,047.57 in his loan 7. COURT OF APPEALS: affirmed the finding of the trial 7.1. According to the appellate court, petitioner could have easily belied the existence of the pesadas and the purpose for which they were offered in evidence by presenting his daughter Elena as witness; however, he failed to do so [ELENA WAS NOT MADE AS A WITNESS] [RE EXHIBITS 3-64 (62 PESADAS)] 7.2. Thus, it gave credence to the testimony of respondent Guillermo in that the net proceeds from the copra deliveries were applied as installment payments for the loan ARGUMENTS: RE: FIRST ISSUE Petitioner asserts that the pesadas should not have been admitted in evidence, since they were private documents that were not duly authenticated. He further contends that the pesadas were

fabricated in order to show that the goods delivered were copra and not corn. Finally, he argues that five of the pesadas mentioned in the Formal Offer of Evidence of respondent were not actually offered RE: SECOND ISSUE Argues that respondent undertook two separate obligations - (1) to pay for the loan in cash and (2) to sell the latter's lucad or copra. Since their written agreement did not specifically provide for the application of the net proceeds from the deliveries of copra for the loan, petitioner contends that he cannot be compelled to accept copra as payment for the loan. He emphasizes that the pesadas did not specifically indicate that the net proceeds from the copra deliveries were to be used as installment payments for the loan. He also claims that respondent's copra deliveries were duly paid for in cash, and that the pesadas were in fact documentary receipts for those payments SUPREME COURT 1. A finding of fact is required in the ascertainment of the due execution and authenticity of the pesadas, as well as the determination of the true intention behind the parties' oral agreement on the application of the net proceeds from the copra deliveries as installment payments for the loan. 1.1. This function was already exercised by the trial court and affirmed by the CA 1.1.1.The defendant further averred that if in the receipts or "pesadas" issued by the plaintiff to those who delivered copras to them there is a notation "pd" on the total amount of purchase price of the copras, it means that said amount was actually paid or given by the plaintiff or his daughter Elena Tan Shuy to the seller of the copras. 1.1.2.To prove his averments the defendant presented as evidence two (2) receipts or pesadas issued by the plaintiff to a certain "Cariño" (Exhibits "1" and "2" - defendant) showing the notation "pd" on the total amount of the purchase price for the copras. Such claim of the defendant was further bolstered by the testimony of Apolinario Cariño which affirmed that he also sell copras to the plaintiff Tan Shuy. He also added that he incurred indebtedness to the plaintiff and whenever he delivered copras the amount of the copras sold were applied as payments to his loan. 1.1.3.The witness also pointed out that the plaintiff did not give any official receipts to those who transact business with him (plaintiff). 1.1.4.This Court gave weight and credence to the documents receipts (pesadas) (Exhibits "3" to "64") offered as evidence by the defendant which does not bear the notation "pd" or paid on the total amount of the purchase price of copras appearing therein. 1.1.5.Although said "pesadas" were private instrument their execution and authenticity were established by the plaintiff's daughter Elena Tan and sometimes by plaintiff's son Vicente Tan 2. No clear showing that the trial court and the CA committed reversible errors of law in giving credence and according weight to the pesadas presented by respondents. 3. According to Rule 132, Section 20 of the Rules of Court, there are two ways of proving the due execution and authenticity of a private document 3.1. BY ANYONE WHO SAW THE DOCUMENT EXECUTED OR WRITTEN 3.2. BY EVIDENCE OF THE GENUINENESS OF THE SIGNATURE OF HANDWRI 4. The trial court found that the due execution and authenticity of the pesadas were "established by the plaintiff's daughter Elena Tan and sometimes by plaintiff's son Vicente Tan 4.1. On cross-examination, [Vicente] reiterated that he and her [sic] sister Elena Tan who acted as their cashier are helping their father in their business of buying copras and mais. That witness agreed that in the business of buying copra and mais of their father, if a seller is selling copra, a pesada is being issued by his sister. The pesada that she is preparing consists of the date when the copra is being sold to the seller. Being familiar with the penmanship of Elena Tan, the witness was shown a sample of the pesada issued by his sister Elena Tan. 4.2. He clarified that in the "pesada" (Exh. "1") prepared by Elena and also in Exh "2", there appears on the lower right hand portion of the said pesadas the letter "pd", the meaning of which is to the effect that the seller of the copra has already been paid during that day. He also confirmed the penmanship and handwriting of his sister Ate Elena who acted as a cashier in the pesada being shown to him. He was even made to compare the xerox copies of the pesadas with the original copies presented to him and affirmed that they are faithful reproduction of the originals 5. In any event, petitioner is already estopped from questioning the due execution and authenticity of the pesadas. As found by the CA, Tan Shuy "could have easily belied the existence of x x x the pesadas or receipts, and the purposes for which they were offered in evidence by simply presenting his daughter, Elena Tan Shuy, but no effort to do so was actually done by the former given that scenario." The pesadas having been admitted in evidence, with petitioner failing to timely object thereto, these documents are already deemed sufficient proof of the facts contained therein 6. This case is an example of dacion en pago. Dation in payment extinguishes the obligation to the extent of the value of the thing delivered, either as agreed upon by the parties or as may be proved, unless the

parties by agreement - express or implied, or by their silence - consider the thing as equivalent to the obligation, in which case the obligation is totally extinguished 7. In fact, as borne by the records on hand, herein defendant-appellee Guillermo was able to describe and spell out the contents of Exhs. "3" to "64" which were then prepared by Elena Tan Shuy or sometimes by witness Vicente Tan. Herein defendant-appellee Guillermo professed that since the release of the subject loan was subject to the condition that he shall sell his copras to the plaintiff-appellant, the former did not already receive any money for the copras he delivered to the latter starting April 1998 to April 1999. Hence, this Court can only express its approval to the apt observation of the trial court on this matter TORRES V. PAGCOR PERALTA, J. FACTS 1. Petitioner was a Slot Machine Operations Supervisor (SMOS) of respondent Philippine Amusement and Gaming Corporation (PAGCOR). 2. On the basis of an alleged intelligence report of padding of the Credit Meter Readings (CMR) of the slot machines at PAGCOR-Hyatt Manila, then Casino Filipino-Hyatt (CF Hyatt), which involved the slot machine and internal security personnel of respondent PAGCOR, and in connivance with slot machine customers, respondent PAGCOR's Corporate Investigation Unit (CIU) allegedly conducted an investigation to verify the veracity of such report. 2.1. The CIU discovered the scheme of CMR padding which was committed by adding zero after the first digit of the actual CMR of a slot machine or adding a digit before the first digit of the actual CMR, e.g., a slot machine with an actual CMR of P5,000.00 will be issued a CMR receipt with the amount of either P50,000.00 or P35,000.00. Based on the CIU's investigation of all the CMR receipts and slot machine jackpot slips issued by CF Hyatt for the months of February and March 2007, the CIU identified the members of the syndicate who were responsible for such CMR padding, which included herein petitioner 3. On May 4, 2007, the CIU served petitioner with a Memorandum of Charges for dishonesty, serious misconduct, fraud and violation of office rules and regulations which were considered grave offenses where the penalty imposable is dismissal 4. On the same day, another Memorandum of Charges signed by Rogelio Y. Bangsil, Jr., Senior Branch Manager, CF Hyatt Manila, was issued to petitioner informing him of the charge of dishonesty 5. Petitioner was then required to explain in writing within seventy-two (72) hours from receipt thereof why he should not be sanctioned or dismissed. Petitioner was placed under preventive suspension effective immediately until further orders. 6. On May 7, 2007, petitioner wrote Manager Bangsil a letter explanation/refutation of the charges against him. 6.1. He denied any involvement or participation in any fraudulent manipulation of the CMR or padding of the slot machine receipts, and he asked for a formal investigation of the accusations against him. 7. On August 4, 2007, petitioner received a letter dated August 2, 2007 from Atty. Lizette F. Mortel, Managing Head of PAGCOR's Human Resource and Development Department, dismissing him from the service. 8. On September 14, 2007, petitioner filed with the CSC a Complaint against PAGCOR and its Chairman Efraim Genuino for illegal dismissal, non-payment of backwages and other benefits. 8.1. ALLEGATIONS 8.1.1.That he denied all the charges against him; 8.1.2.That he did ask for a formal investigation of the accusations against him and for PAGCOR to produce evidence and proofs to substantiate the charges, but respondent PAGCOR did not call for any formal administrative hearing; 8.1.3.That he tried to persuade respondent PAGCOR to review and reverse its decision in a letter of reconsideration dated August 13, 2007 addressed to the Chairman, the members of the Board of Directors and the Merit Systems Protection Board; and 8.1.4.That no resolution was issued on his letter reconsideration, thus, the filing of the complaint. 8.1.4.1. Petitioner claimed that as a result of his unlawful, unjustified and illegal termination/dismissal, he was compelled to hire the services of a counsel in order to protect his rights. 9. Respondent PAGCOR filed its Comment wherein it alleged, among others, that petitioner failed to perfect an appeal within the period and manner provided by the Uniform Rules on Administrative Cases in the Civil Service Law 10. CSC: treated petitioner’s complaint as an appeal from PAGCOR’s decision; DENIED HIS APPEAL 10.1. In so ruling, the CSC found that the issue for resolution was whether petitioner's appeal had already prescribed which the former answered in the positive.

10.2. The CSC did not give credit to petitioner's claim that he sent a facsimile transmission of his letter reconsideration within the period prescribed by the Uniform Rules on Administrative Cases in the Civil Service. 10.3. It found PAGCOR's denial of having received petitioner's letter more credible as it was supported by certifications issued by its employees. 10.4. It found that a verification of one of the telephone numbers where petitioner allegedly sent his letter reconsideration disclosed that such number did not belong to the PAGCOR's Office of the Board of Directors; and that petitioner should have mentioned about the alleged facsimile transmission at the first instance when he filed his complaint and not only when respondent PAGCOR raised the issue of prescription in its Comment. 11. COURT OF APPEALS: DISMISSED THE PETITION FOR LACK OF MERIT 11.1. In dismissing the petition, the CA found that petitioner failed to adduce clear and convincing evidence that he had filed a motion for reconsideration. 11.2. It found insufficient to merit consideration petitioner's claim that he had sent through a facsimile transmission a letter/reconsideration dated August 13, 2007 addressed to PAGCOR's Chairman, members of the Board of Directors and the Merit Systems Protection Board; that assuming arguendo that a letter reconsideration was indeed sent through a facsimile transmission, such facsimile transmission is inadmissible as electronic evidence under the Electronic Commerce Act of 2000; and that a review of the CSC assailed resolution revealed that the telephone numbers where petitioner claimed to be the recipient of the faxed document sent was not that of PAGCOR's Office of Board of Directors. 11.3. The CA found baseless and conjectural petitioner's claim that PAGCOR can easily deny having received the letter by giving orders to their employees to execute an affidavit of denial under pain and threat of administrative sanction or termination from service. 11.4. The CA then concluded that PAGCOR's decision which was contained in a letter dated August 4, 2007 dismissing petitioner from the service had already attained finality since there was no motion for reconsideration filed by petitioner in the manner and within the period provided for under the Revised Uniform Rules on the Administrative Cases in the Civil Service.2 Petitioner contends that he filed his letter reconsideration of his dismissal on August 13, 2007, which was within the 15-day period for filing the same; and that he did so by means of a facsimile transmission sent to the PAGCOR's Office of the Board of Directors. He claims that the sending of documents thru electronic data message, which includes facsimile, is sanctioned under Republic Act No. 8792, the Electronic Commerce Act of 2000. Petitioner further contends that since his letter reconsideration was not acted upon by PAGCOR, he then filed his complaint before the CSC. SUPREME COURT 1. Clearly, a motion for reconsideration may either be filed by mail or personal delivery. 1.1. When a motion for reconsideration was sent by mail, the same shall be deemed filed on the date shown by the postmark on the envelope which shall be attached to the records of the case. 1.2. On the other hand, in case of personal delivery, the motion is deemed filed on the date stamped thereon by the proper office. And the movant has 15 days from receipt of the decision within which to file a motion for reconsideration or an appeal therefrom. 2. Petitioner received a copy of the letter/notice of dismissal on August 4, 2007; thus, the motion for reconsideration should have been submitted either by mail or by personal delivery on or before August 19, 2007. 2 Section 37. Finality of Decisions - A decision rendered by heads of agencies whereby a penalty of suspension for not more than thirty days or a fine in an amount not exceeding thirty (30) days' salary is imposed, shall be final and executory. However, if the penalty imposed is suspension exceeding thirty days, or fine in an amount exceeding thirty days’ salary, the same shall be final and executory after the lapse of the reglementary period for filing a motion for reconsideration or an appeal and no such pleading has been filed. Section 38. Filing of motion for reconsideration. - The party adversely affected by the decision may file a motion for reconsideration with the disciplining authority who rendered the same within fifteen days from receipt thereof. Section 39. When deemed filed. - A motion for reconsideration sent by mail shall be deemed filed on the date shown by the postmark on the envelope which shall be attached to the records of the case and in case of personal delivery, the date stamped thereon by the proper office. Section 43. Filing of Appeals. - Decisions of heads of departments, agencies, provinces, cities, municipalities and other instrumentalities imposing a penalty exceeding thirty (30) days suspension or fine in an amount exceeding thirty (30) days’ salary, maybe appealed to the Commission Proper within a period of fifteen (15) days from receipt thereof.

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2.1. However, records do not show that petitioner had filed his motion for reconsideration. 2.2. In fact, the CSC found that the non-receipt of petitioner's letter reconsideration was duly supported by certifications issued by PAGCOR employees. Even assuming arguendo that petitioner indeed submitted a letter reconsideration which he claims was sent through a facsimile transmission, such letter reconsideration did not toll the period to appeal. The mode used by petitioner in filing his reconsideration is not sanctioned by the Uniform Rules on Administrative Cases in the Civil Service. As we stated earlier, the motion for reconsideration may be filed only in two ways, either by mail or personal delivery. GARVIDA V. SALES, JR: A facsimile is not a genuine and authentic pleading. It is, at best, an exact copy preserving all the marks of an original. Without the original, there is no way of determining on its face whether the facsimile pleading is genuine and authentic and was originally signed by the party and his counsel. It may, in fact, be a sham pleading Moreover, a facsimile transmission is not considered as an electronic evidence under the Electronic Commerce Act. In MCC Industrial Sales Corporation v. Ssangyong Corporation The CSC treated the complaint as an appeal from the PAGCOR's dismissal of petitioner. Under Section 43 which we earlier quoted, petitioner had 15 days from receipt of the letter of dismissal to file his appeal. 6.1. However, at the time petitioner filed his complaint with the CSC, which was considered as petitioner's appeal, 41 days had already elapsed from the time he received his letter of dismissal on August 4, 2007; hence, the CSC correctly found that it has no jurisdiction to entertain the appeal since petitioner's dismissal had already attained finality. 6.2. Petitioner's dismissal from the service became final and executory after he failed to file his motion for reconsideration or appeal in the manner and within the period provided for under the Revised Uniform Rules on Administrative Cases in the Civil Service. The perfection of an appeal in the manner and within the period prescribed by law is not only mandatory but also jurisdictional and the failure of a party to conform to the rules regarding appeal will render the judgment final and executory and, hence, unappealable, for it is more important that a case be settled than it be settled right. Furthermore, it is axiomatic that final and executory judgments can no longer be attacked by any of the parties or be modified, directly or indirectly, even by the highest court of the land. Just as the losing party has the right to file an appeal within the prescribed period, so also the winning party has the correlative right to enjoy the finality of the resolution of the case (PENA V. GSIS) GENUINENESS OF SIGNATURE

BERNALES V. SAMBAAN DEL CASTILLO, J. In the instant case, we are at the forefront of a family squabble over a disputed land situated in Cagayan de Oro City which was purportedly conveyed to the eldest child through a Deed of Absolute Sale FACTS 1. Julian Sambaan (Julian), married to Guillerma Saarenas-Sambaan (Guillerma), was the registered owner of a property located at Bulua, Cagayan de Oro City 2. The respondents herein and the petitioner Myrna Bernales (Myrna) are the children of Julian and Guillerma. 3. Myrna, who is the eldest of the siblings, is the present owner and possessor of the property in question. 4. Sometime in 1975, Julian was ambushed at Merayon, Talakad, Bukidnon, and was hospitalized due to a gunshot wound. 5. On April 11, 1975, Julian allegedly requested his children to gather so that he could make his last two wishes. 5.1. Julian's first wish was for the children to redeem the subject property which was mortgaged to Myrna and her husband Patricio Bernales (Patricio) 5.2. While his second wish was for his remains not to be brought to the house of Myrna at Nazareth, Cagayan de Oro City. Thus, in 1982, respondent Absalon Sambaan (Absalon), one of Julian's children, offered to redeem the property but the petitioners refused because they were allegedly using the property as tethering place for their cattle. 6. In January 1991, respondents received information that the property covered by TCT No. T-14202 was already transferred to petitioners' name.

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6.1. Whereupon, they secured a copy of the Deed of Absolute Sale dated December 7, 1970 which bore the signatures of their parents and had it examined by the National Bureau of Investigation (NBI). 6.2. The result of the examination revealed that the signatures of their parents, Julian and Guillerma, were forged. APPRIL 13, 1993: RESPONDENTS FILED A COMPLAINT FOR ANNULMENT OF DEED OF ABSOLUTE SALE AND CANCELLATION OF TCT WITH DAMAGES and WRIT OF PRELIMINARY INJUNCTION 7.1. ALLEGATIONS 7.1.1.That in spite of the forged signature of their parents, the petitioners were able to register the Deed of Absolute Sale with the Registry of Deeds of Cagayan de Oro City 7.1.2.They prayed for an injunctive relief in order to prevent the petitioners from selling, disposing, or mortgaging said property. 7.1.3.They further prayed that (i) the Deed of Absolute Sale and TCT No. T-14204 be annulled; (ii) they be declared the absolute owners of the property; (iii) all documents executed, made and entered into relative to the said title be declared void; and, (iv) the petitioners be ordered to pay them P300,000.00 as moral and exemplary damages, and P50,000.00 as attorney's fees plus P1,000.00 as appearance fee. PETITIONERS’ ANSWER 8.1. Juanito, Aida and Renato [JULIAN’S SIBLINGS] sold their share to a certain Domingo Ebarrat (Ebarrat) [THRU AN EXTRAJUDICIAL SETTLEMENT AND SALE] 8.2. Hence, a portion of the property belonged to Julian [PETITIONER’S FATHER] while another portion belonged to Ebarrat. 8.3. In view of the co-ownership between Ebarrat and Julian, the former and the latter executed a Deed of Partition dated September 8, 1970 whereby Lot No. 5947 was divided. 8.4. The eastern half with an area of 3,643 square meters was assigned to Julian, while the western half with the same area went to Ebarrat 8.5. Petitioners claimed that Julian subsequently sold his share to them by virtue of a Deed of Absolute Sale dated December 7, 1970 8.6. Thereafter, on December 10, 1970, Ebarrat and Patricio executed an Agreement wherein Ebarrat acknowledged that petitioners are the owners of the 18 coconut trees planted in Ebarrat's property and even made Julian as a witness to the said Agreement 8.7. Alleged that the imputation of falsification of the signatures of Julian and Guillerma is a product of respondents' inflamed imagination because the latter envy them for they have been successful in managing their properties. Petitioners thus prayed that judgment be rendered dismissing the complaint; affirming their title over the controverted property and ordering respondents to pay them damages On July 27, 1992, petitioners filed a Motion for Production and Inspection of Document to compel respondents to produce and permit them to inspect and to copy or photograph the Deed of Absolute Sale subject matter of said examination GRANTED REGIONAL TRIAL COURT: RULED IN FAVOR OF RESPONDENTS COURT OF APPEALS: AFFIRMED RTC DECISION

The core issue to be resolved in the present controversy is the authenticity of the Deed of Absolute Sale which is a question of fact rather than of law. SUPREME COURT: There is substantial evidence on record to support the Court of Appeals and trial court's conclusion that the signatures of Julian and Guillerma in the Deed of Absolute Sale were forged 1. THE EXAMINATION CONDUCTED 1.1. NBI EXAMINER CAROLINE MOLDEZ PITOY: After [conducting] comparative examinations x x x on the standard specimen signatures of Julian Sambaan [and Guillerma Sambaan] as well as the x x x questioned x x x signatures x x x we found out that [they were] not written by one and the same person 1.1.1.Per Standard Operating Procedures, the first thing we did upon receipt of the documents submitted to us is to check x x x the documents attached to the basic letter-request and then the questioned and standard documents were classified as to the sufficiency and appropriateness of the standards, and then these were evaluated, after which, they were marked accordingly, then we go to examining all the standard/specimens first, to determine whether the handwriting is done by one and the same person before comparing with the questioned and standard signatures. x x x After they were found to be written by one and the same person, before comparing with the questioned documents, the handwriting characteristics were properly observed in these two (2) sheets of photographs, then, the final evaluation is made, after which, a written report is made as a result of the examination, then the same is forwarded to the Document Examiner for re-examination and this Examiner affixes

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his signature and submits the same to the Chief of the Division for approval and the said report passes to the office of the Regional Director for final approval. PETITIONERS FAILED TO PRESENT ANY EVIDENCE TO REBUT THE FINDINGS OF THE NBI HANDWRITING EXPERT 2.1. Moreover, the findings of the NBI document examiner were corroborated by the trial court's own observation, as affirmed by the CA, that "even a cursory examination of Guillerma's questioned signature from her specimen signatures in the enlarged photographs (Exhibits `F' and `F-1') would show that it needs no expert witness to notice the wide difference in stroke, as well as the writing style in capital `G'." 2.2. What is more, Emma S. Felicilda, the daughter of then deceased Guillerma, likewise testified that "in fact my mother was the one who filed the complaint in this instant case because according to her, she did not sign the said document" THE FACT THAT THE EXAMINATION WAS COMMISSIONED BY THE RESPONDENTS DID NOT MAKE THE SAID EXAMINATION NULL AND VOID 3.1. It is of no moment that the examination of the Deed of Absolute Sale was commissioned by the respondents. In the end, it is the court which has the discretion and authority on whether to give probative value to the results of the examination 3.2. SALI V. ABUBAKAR: the fact that the NBI conducted the examination of certain contested documents upon the request of a private litigant does not necessarily nullify the examination thus made 3.2.1.Its purpose is, presumably, to assist the court having jurisdiction over said litigations, in the performance of its duty to settle correctly the issue relative to said documents. Even a nonexpert private individual may examine the same, if there are facts within his knowledge which may help the courts in the determination of said issue. Such examination, which may properly be undertaken by a non-expert private individual, does not, certainly, become null and void when the examiner is an expert and/or an officer of the NBI. THE PROCEDURES TAKEN BY THE NBI DOCUMENT EXAMINER DID NOT VIOLATE 132.22 4.1. It should be borne in mind that in this case respondents were not presenting evidence to authenticate a private document. On the contrary, they are challenging the signatures appearing in the Deed of Absolute Sale THE CONFLUENCE OF THE FOLLOWING CIRCUMSTANCES PROVE BY PREPONDERANCE OF EVIDENCE THAT THE DEED OF ABSOLUTE SALE WAS FORGED 5.1. Records show that Julian was unaware of any absolute conveyance of his rights over the subject property in favor of petitioners. As found by the trial court and affirmed by the CA, Julian even requested his children to redeem subject property from the petitioners. In furtherance of his father's request, Absalon offered to redeem the subject property from the petitioners in 1982, however, the latter refused because they were allegedly using the same as tethering place for their cattle 5.2. The caretaker of the subject property, Eufronio Abrea, also testified on cross-examination that there were times when the brothers and sisters of Myrna went to the land and asked for coconuts. 5.2.1.Petitioners take this to imply that the respondents "never owned the subject property because they had to ask for coconuts from petitioners, who were the real owners of the property." 5.2.2.We disagree with this interpretation. 5.2.2.1. Harvesting of coconuts requires specialized skills; an ordinary person who does not know how to climb necessarily has to ask the caretaker to get the coconuts for him or her. 5.3. In addition, Myrna admitted that she was not present when her parents signed the assailed Deed of Absolute Sale. Neither was she cognizant of who the witnesses were to the said deed. Interestingly, Guillerma, one of the alleged signatories, would have been privy to the transaction that involved her husband. Yet, she joined herein respondents in filing an action for the Annulment of the Deed of Absolute Sale on the ground of forgery. 5.4. Lastly, the trial court and the CA were one in proclaiming that considering that the subject property belongs to Julian's capital, the execution of the assailed Deed of Absolute Sale could be validly made by Julian even without his wife's signature. 5.4.1.As a matter of fact, the wife's name was not typed in the assailed deed and her purported signature merely appears next to the supposed signature of Julian. This only confirms that the person who prepared the deed knew that her signature was unnecessary for the assailed document. The forged Deed of Absolute Sale is null and conveys no title. 6.1. SOLIVEL V. FRANCISCO: In order that the holder of a certificate for value issued by virtue of the registration of a voluntary instrument may be considered a holder in good faith for value, the instrument registered should not be forged. When the instrument presented is forged, even if accompanied by the owner's duplicate certificate of title, the registered owner does not thereby lose his title, and neither does the assignee in the forged deed acquire any right or title to the property

6.2. INSTRADE V. CA: "[A]s early as Joaquin v. Madrid, x x x, we said that in order that the holder of a certificate for value issued by virtue of the registration of a voluntary instrument may be considered a holder in good faith and for value, the instrument registered should not be forged". 6.3. THUS, with the presentation of the forged deed, even if accompanied by the owner's duplicate certificate of title, the registered owner did not thereby lose his title, and neither does the assignee in the forged deed acquire any right or title to the said property 7. Prescription did not bar respondents' action to recover ownership of the subject property. 7.1. An action to declare the inexistence of void contracts (GROUND IN THIS CASE: absolutely simulated or fictitious) does not prescribe 7.2. The inexistence of a contract is permanent and incurable which cannot be cured either by ratification or by prescription 8. The award of moral damages and attorney's fees is proper NACU V. CSC AND PEZA NACHURA, J. The assailed Decision held that Irene K. Nacu (Nacu), Enterprise Service Officer III at the Philippine Economic Zone Authority (PEZA), assigned at the Bataan Economic Zone (BEZ), was guilty of dishonesty, grave misconduct, and conduct prejudicial to the best interest of the service, and imposed upon her the penalty of dismissal from the service and its accessory penalties (cancellation of eligibility; forefeiture of retirement benefits, and perpetual disqualification from re-employment in the government service) FACTS 1. On December 17, 1999, PEZA issued Memorandum Order No. 99-003, prohibiting its employees from charging and collecting overtime fees from PEZA-registered enterprises 1.1. Effective immediately, PEZA shall provide processing/documentation services required by economic zone export-producers for incoming and outgoing shipments x x x FREE OF OVERTIME FEES/CHARGES 1.2. Economic zone export producers, customs brokers, freight forwarders, truckers and other service providers and enterprises are strictly prohibited from offering financial and/or non-financial tokens, compensation, etc. to any PEZA official and/or personnel, in connection with PEZA overtime services rendered and/or other transactions. 1.3. In addition, economic zone export-producers, customs brokers, freight forwarders, truckers and other service providers and enterprises are enjoined to notify ranking PEZA officials (Administrator, Manager, Officer-in-Charge, Deputy Director Generals and the Director General) on any difficulties or problems they encounter, particularly those pertaining to lack of service-orientation or improper behavior of any PEZA officer and/or personnel 2. Sometime in September 2001, Edison (Bataan) Cogeneration Corporation (EBCC) filed a complaint against Nacu for allegedly charging it overtime fees, despite Memorandum Order No. 99-003. 3. Acting on the complaint, PEZA immediately conducted a preliminary investigation, during which Atty. Norma B. Cajulis, PEZA's lawyer, interviewed Rey Ligan (Ligan), a document processor at EBCC. 3.1. Ligan attested, among others, that the overtime fees went to Nacu's group, and that, during the time Nacu was confined in the hospital, she pre-signed documents and gave them to him. 4. On November 21, 2001, Atty. Procolo Olaivar (Atty. Olaivar) of PEZA Legal Services Group requested the National Bureau of Investigation (NBI) to verify the genuineness of Nacu's signatures appearing on the Statements of Overtime Services (SOS). 4.1. Original copies of 32 SOS and a specimen of Nacu's signature were then sent to the NBI for comparison. 5. On January 25, 2002, the NBI informed Atty. Olaivar that "no definite opinion can be rendered on the matter" since "the standards/sample signatures of the subject submitted [we]re not sufficient and appropriate to serve as basis for a specific comparative examination." 5.1. The NBI then requested that, should PEZA still want it to conduct further examination, it be furnished with additional standard/sample signatures, in the same style and pattern as that of the questioned document, appearing in official/legal documents on file, executed before, during, and after the date of the questioned document 6. PEZA referred the 32 SOS, together with the same standard specimen of Nacu's signatures/initials, to the Philippine National Police Crime Laboratory (PNP Crime Lab) for determination of the genuineness of Nacu's signature appearing therein 7. PNP REPORT (ROSARIO PEREZ, DOCUMENT EXAMINER II): 7.1. IN 22 OF THE 32 SOS: THE SUBJECT SIGNATURES WERE NOT WRITTEN BY NACU 7.2. IN THE REMAINING 10 THEREOF: IT WAS WRITTEN BY NACU

8. Finding a prima facie case against Nacu, PEZA Director General Lilia B. de Lima (Director General De Lima) filed a Formal Charge against her for Dishonesty, Grave Misconduct, and Conduct Prejudicial to the Best Interest of the Service. 8.1. It was alleged that Nacu unlawfully charged P3,500.00 overtime fee from EBCC on ten occasions (covered by the ten SOS which the PNP Crime Lab found to have been written by Nacu), for a total amount of P35,000.00. 9. Nacu denied that the signatures appearing on the ten overtime billing statements were hers. 9.1. She averred that it was impossible for her to charge EBCC overtime fees as the latter was well aware that PEZA employees may no longer charge for overtime services; that she had no actual notice of Memorandum Order No. 99-003; and that she caused no damage and prejudice to PEZA and EBCC 10. During the hearing, PEZA presented the following witnesses: Rosario Perez, the document examiner who examined the SOS; Atty. Dante Quindoza, Zone Administrator of BEZ, who testified that Nacu was one of the officials authorized to sign the documents; Romy Zaragosa, Corporate Relations Manager of Covanta Energy, who attested that meetings were held on November 17, 2001 and January 25, 2002, wherein Ligan testified that he gave the payment for overtime fees to Nacu; Roberto Margallo (Margallo), Enterprise Service Officer III of PEZA, who testified that he knows Nacu's signature and that he was certain that the signatures appearing on the SOS were hers; Omar Dana, EBCC plant chemist, who testified that EBCC paid, through Ligan, overtime fees to Nacu and some other persons; Elma Bugho, PEZA Records Officer, who testified on the issuance of PEZA Memorandum Order No. 99-003; and Miguel Herrera, then Division Chief of PEZA at the BEZ, who testified that he was responsible for the implementation of PEZA rules and regulations and for assigning examiners upon the request of zone enterprises and brokers 11. On February 8, 2005, the PEZA Central Board of Inquiry, Investigation, and Discipline (CBIID), with the approval of Director General De Lima, found Nacu guilty of the acts charged 12. CSC: DISMISSED NACU’S APPEAL 13. Nacu forthwith filed a petition for review with the CA, assailing the CSC resolutions. On September 17, 2007, while the case was pending resolution, Nacu died and was substituted by her heirs, Benjamin Nacu (husband), Nejie N. de Sagun (daughter), and Ervin K. Nacu (son), herein petitioners 14. COURT OF APPEALS: affirmed the CSC resolutions. 14.1. The CA could not believe Nacu's claim that she was not aware of Memorandum Order No. 99-003, considering that the order was issued almost two years earlier. According to the CA, as a PEZA employee, Nacu had the obligation to keep herself abreast of everything that transpires in her office and of developments that concern her position. It stressed that even if Nacu had not actually received a copy of the memorandum order, such circumstance will not foreclose the order's effectivity; and that it is merely an internal regulation which does not require publication for its effectivity 14.2. The CA brushed aside Nacu's objections to (a) Ligan's written statement because it was not made under oath and Ligan was not presented as witness during the hearing; (b) the PNP Crime Lab's findings for being unreliable in light of the NBI's own finding that the samples were not sufficient; and (c) Margallo's testimony identifying Nacu's signatures on the SOS, on the ground that he was not presented as an expert witness. 14.2.1. The CA pointed out that proceedings in administrative cases are not strictly governed by technical rules of procedure and evidence, as they are required to be disposed of summarily. 14.3. Found pointless Nacu's criticism of the PNP Crime Lab's findings based on the NBI's opinion on the samples given. To counter the same, the CA highlighted the fact that the NBI's opinion did not conclusively state that the signatures were not that of Nacu. It stressed that Nacu failed to adduce clear and convincing evidence to contradict the PNP Crime Lab's findings, relying merely on the NBI's opinion which, to the mind of the CA, did not actually absolve petitioner. Petitioners' arguments focus largely on the weight given by the CA to the PNP Crime Lab's report, which, they insist, should not be given credence as it is unreliable. Firstly, it was not shown that the questioned document examiner who examined the SOS was a handwriting expert. Secondly, the signature samples were, according to the NBI, insufficient references for a comparative examination. Thirdly, the sample signatures used were obtained in violation of Nacu's right against self-incrimination. And lastly, the report merely states that there were similarities in the manner of execution, line quality, and stroke structures of the signatures, and that such conclusion does not translate to a finding that the signatures appearing on the SOS are genuine. Petitioners also object to the CA's reliance on the statements made by Ligan during the preliminary investigation, which were not given under oath. They contend that Nacu was denied due process when Ligan was not presented as witness during the trial, and that there were inconsistencies in Ligan's

statements. And finally, as an affirmative defense, they reiterate that Nacu was not aware of the issuance and implementation of Memorandum Order No. 99-003. They point out that there was, in fact, no showing that the said order had been published in a newspaper, posted at the BEZ, or a copy thereof furnished to Nacu SUPREME COURT: THE PETITION IS UNMERITORIOUS. 1. Substantial evidence, the quantum of evidence required in administrative proceedings, means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion 1.1. The standard of substantial evidence is satisfied when there is reasonable ground to believe that a person is responsible for the misconduct complained of, even if such evidence might not be overwhelming or even preponderant 2. Overall, the testimonies of the witnesses, the statements made by Ligan during the preliminary investigation, and the findings of the PNP Crime Lab on its examination of the signatures on the SOS, amounted to substantial evidence that adequately supported the conclusion that Nacu was guilty of the acts complained of. 2.1. Petitioners' allegations of unreliability, irregularities, and inconsistencies of the evidence neither discredited nor weakened the case against Nacu. 3. RE DISSONANCE BETWEEN PNP AND NBI FINDINGS 3.1. The PNP and the NBI are separate agencies, and the findings of one are not binding or conclusive upon the other. 3.2. Moreover, as pointed out by the Office of the Solicitor General in its Comment, the NBI's finding referred only to the insufficiency of the samples given; the NBI did not actually make a determination of the genuineness of the signatures. 3.3. While the NBI may have found the samples to be insufficient, such finding should not have any bearing on the PNP Crime Lab's own findings that the samples were sufficient and that some of the signatures found on the overtime billings matched the sample signatures. 3.4. The difference of opinion with respect to the sufficiency of the samples could only mean that the PNP Crime Lab observes a standard different from that used by the NBI in the examination of handwriting. 4. Instead of just discrediting the PNP Crime Lab's findings, Nacu should have channeled her efforts into providing her own proof that the signatures appearing on the questioned SOS were forgeries. After all, whoever alleges forgery has the burden of proving the same by clear and convincing evidence 5. In any case, the CA did not rely solely on the PNP Crime Lab report in concluding that the signatures appearing on the ten SOS were Nacu's. 5.1. Margallo, a co-employee who holds the same position as Nacu, also identified the latter's signatures on the SOS. Such testimony deserves credence. 5.2. It has been held that an ordinary witness may testify on a signature he is familiar with. 5.3. Anyone who is familiar with a person's writing from having seen him write, from carrying on a correspondence with him, or from having become familiar with his writing through handling documents and papers known to have been signed by him may give his opinion as to the genuineness of that person's purported signature when it becomes material in the case 6. Petitioners also posit that Nacu was denied her right against self-incrimination when she was made to give samples of her signature. 6.1. We do not agree. 6.2. The right against self-incrimination is not self-executing or automatically operational. It must be claimed; otherwise, the protection does not come into play. Moreover, the right must be claimed at the appropriate time, or else, it may be deemed waived. 6.3. In the present case, it does not appear that Nacu invoked her right against self-incrimination at the appropriate time, that is, at the time she was asked to provide samples of her signature. She is therefore deemed to have waived her right against self-incrimination 7. Next, petitioners assail the credibility of Ligan's statement because it was not made under oath and Ligan was not presented as witness during the hearing. Nacu was allegedly denied due process when she was deprived of the opportunity to cross-examine Ligan. 7.1. It is settled that, in administrative proceedings, technical rules of procedure and evidence are not strictly applied. Administrative due process cannot be fully equated with due process in its strict judicial sense 7.2. The measure of due process to be observed by administrative tribunals allows a certain degree of latitude as long as fairness is not compromised 8. In addition, petitioners claim that there were inconsistencies in Ligan's statement. While Ligan allegedly stated that Nacu gave him pre-signed documents during the time that she was in the hospital, and that

these pre-signed documents referred to the ten overtime billings referred to in the formal charge, the record does not show that Nacu was confined in the hospital on the dates indicated in the said billings. 8.1. To set the record straight, Ligan did not specifically mention that the dates indicated in the presigned documents were also the days when Nacu was confined in the hospital. He merely said that Nacu pre-signed some documents during the time that she was in the hospital, and that she gave these documents to him. Neither did he state that these pre-signed SOS were the same ten SOS cited in the formal charge against Nacu. It was petitioners' own assumption that led to this baseless conclusion. 9. In Nacu's defense, petitioners contend that she (Nacu) was not aware of the existence of Memorandum Order No. 99-003. They aver that there was no evidence showing that Memorandum Order No. 99-003 was posted, published, and promulgated; hence, it cannot be said that the order had already taken effect and was being implemented in the BEZ. Petitioners claim that Nacu had, in fact, no actual knowledge of the said order as she was not furnished with a copy thereof. 9.1. Nacu cannot feign ignorance of the existence of the said order. As correctly opined by the CA, it is difficult to believe that Nacu, one of the employees of PEZA affected by the memorandum order, was not in any way informed--by posting or personal notice--of the implementation of the said order, considering that over a year had lapsed since it had been issued. From the testimonies of the other witnesses, who were employees of PEZA and PEZA-registered enterprises, it was evident that the prohibition against charging and collecting overtime fees was common knowledge to them. 9.2. At any rate, no publication is required for such a regulation to take effect. Memorandum Order No. 99-003 is an internal regulation that clearly falls within the administrative rules and regulations exempted from the publication requirement 10. At the very least, Nacu should have been aware that collecting payments directly from PEZA-registered enterprises was strictly prohibited. 10.1. Months before Memorandum Order No. 99-003 was promulgated, PEZA had already put a stop to the practice of collecting direct payments for overtime fees from PEZA-registered enterprises under Office Order No. 99-0002 dated March 8, 1999. 10.1.1. The latter specifically provides that "overtime shall be paid only through the regular payroll system," and that overtime claims shall be supported by the required documents. 10.1.2. This was followed by PEZA General Circular No. 99-0001 (Prescribing New Rates of Overtime Pay Payable by Zone Enterprises, Customs Brokers And Other Entities Concerned) dated August 10, 1999 11. Petitioners desperately argue that Nacu could not have charged and collected overtime fees from EBCC as it was well aware of Memorandum Order No. 99-003. The contention is puerile. Petitioners are, in effect, saying that knowledge of the existence of a rule prohibiting a certain act would absolutely prevent one from doing the prohibited act. This premise is undeniably false, and, as a matter of fact, judicial institutions have been founded based on the reality that not everyone abides by the law. PUBLIC DOCUMENTS G & S TRANSPORT CORP. V. HEIRS OF OCHOA DEL CASTILLO, J. FACTS 1. Jose Marcial K. Ochoa (Jose Marcial) died on the night of March 10, 1995 while on board an Avis taxicab owned and operated by G & S Transport Corporation (G & S), a common carrier 2. Sometime in the evening of March 10, 1995, at the Manila Domestic Airport, the late Jose Marcial K. Ochoa boarded and rode a taxicab with Plate No. PKR-534, a passenger vehicle for hire owned and operated by defendant corporation under the business name "Avis Coupon Taxi" (Avis) and driven by its employee and authorized driver Bibiano Padilla, Jr. on his way home to Teacher's Village, Diliman, Quezon City 3. At about 11:00 p.m., the taxicab was cruising along Epifanio delos Santos Avenue [EDSA], in front of Camp Aguinaldo in Quezon City at high speed. 4. While going up the Boni Serrano (Santolan) fly-over, it overtook another cab driven by Pablo Clave and tried to pass another vehicle, a ten-wheeler cargo truck. 5. Because of the narrow space between the left side railing of the fly-over and the ten-wheeler truck, the Avis cab was unable to pass and because of its speed, its driver (Padilla) was unable to control it. 6. To avoid colliding with the truck, Padilla turned the wheel to the left causing his taxicab to ram the railing throwing itself off the fly-over and fell on the middle surface of EDSA below. 7. The forceful drop of the vehicle on the floor of the road broke and split it into two parts. 7.1. Both driver Padilla and passenger Jose Marcial K. Ochoa were injured and rushed to the hospital.

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7.2. At the East Avenue Medical Center, Ochoa was not as lucky as Padilla who was alive. He was declared dead on arrival from the accident. 7.3. The death certificate issued by the Office of the Civil Registrar of Quezon City cited the cause of his death as vehicular accident On May 13, 1999, Jose Marcial's wife, Ruby Bueno Ochoa, and his two minor children, Micaela B. Ochoa and Jomar B. Ochoa (the heirs), through counsel, sent G & S a letter demanding that the latter indemnify them for Jose Marcial's death, his loss of earning capacity, and funeral expenses in the total amount of P15,000,000.00. 8.1. As G & S failed to heed the same, the heirs filed a Complaint for Damages before the Regional Trial Court (RTC) of Pasig City 8.2. ALLEGATIONS 8.2.1.The heirs alleged that G & S, as a common carrier, is under legal obligation to observe and exercise extraordinary diligence in transporting its passengers to their destination safely and securely. 8.2.2.However, G & S failed to observe and exercise this extraordinary diligence because its employee failed to transport Jose Marcial to his destination safely. 8.2.3.They averred that G & S is liable to them for having breached the contract of common carriage. 8.2.4.As an alternative cause of action, they asserted that G & S is likewise liable for damages based on quasi-delict pursuant to Article 2180 in relation to Article 2176 of the Civil Code. 8.2.5.The heirs thus prayed for G & S to pay them actual damages, moral damages, exemplary damages, and attorney's fees and expenses of litigation PETITIONER’S ANSWER 9.1. G & S claimed that Jose Marcial boarded an Avis taxicab driven by its employee, Bibiano Padilla (Padilla), at the Domestic Airport to bring him to Teacher's Village in Quezon City. 9.2. While passing the Santolan fly-over, however, the Avis taxicab was bumped by an on-rushing delivery van at the right portion causing the taxicab to veer to the left, ram through the left side of the railings of the fly-over and fall to the center of the island below. 9.3. The taxicab was split into two and Jose Marcial was thrown 10 meters away. 9.4. G & S posited that the proximate cause of Jose Marcial's death is a fortuitous event and/or the fault or negligence of the driver of the delivery van that hit the taxicab. 9.5. It likewise claimed that it exercised the diligence required of a good father of a family in the selection and supervision of its employees including Padilla. 9.6. By way of compulsory counterclaim, G & S sought to recover from the heirs the amount of P300,000.00 as attorney's fees and costs of suit. REGIONAL TRIAL COURT: THE ACCIDENT WAS CAUSED BY THE NEGLIGENCE OF PADILLA; G&S LIABLE 10.1. It likewise found the evidence adduced by G & S to show that it exercised the diligence of a good father of a family in the selection and supervision of its employees as insufficient. 10.2. However, for lack of receipts or any proof of funeral expenses and other actual damages, the trial court denied the heirs' claim for actual damages. 10.3. It also denied them moral and exemplary damages for lack of legal basis 10.3.1. LATER MODIFIED moral (300k)and exemplary (50k) damages were thereafter awarded Before the CA, G & S continued to insist that it exercised the diligence of a good father of the family in the selection and supervision of its employees. 11.1. It averred that it has been carrying out not only seminars for its drivers even before they were made to work, but also periodic evaluations for their performance. 11.2. Aside from these, it has also been conducting monthly check-up of its automobiles and has regularly issued rules regarding the conduct of its drivers. G & S claimed that it was able to establish a good name in the industry and maintain a clientele. 11.3. In an effort to build up Padilla's character as an experienced and careful driver, G & S averred that: 11.3.1. before G & S employed Padilla, he was a delivery truck driver of Inter Island Gas Service for 11 years; 11.3.2. Padilla has been an employee of G & S from 1989 to 1996 and during said period, there was no recorded incident of his being a negligent driver; 11.3.3. despite his qualifications, G & S still required Padilla to submit an NBI clearance, driver's license and police clearance; 11.3.4. Padilla's being a good driver-employee was manifest in his years of service with G & S, as in fact, he has received congratulatory messages from the latter as shown by the inter-office memos dated August 23, 1990 and February 1, 1993; and that 11.3.5. Padilla attended a seminar at the Pope Pius Center sometime in December 1999 as part of the NAIA Taxi Operation Program.

11.4. G & S also argued that the proximate cause of Jose Marcial's death is a fortuitous event and/or the fault or negligence of another and not of its employee. 11.4.1. According to G & S, the collision was totally unforeseen since Padilla had every right to expect that the delivery van would just overtake him and not hit the right side of the taxicab. 11.4.2. Therefore, what transpired was beyond Padilla's control. 11.4.3. There was no negligence on his part but on the part of the driver of the delivery van. For this reason, G & S opined that it was not liable to the heirs. 12. The HEIRS cited NCC 1759 Common carriers are liable for the death of or injuries to passengers through the negligence or willful acts of the former's employees, although such employees may have acted beyond the scope of their authority or in violation of the orders of the common carriers. This liability of the common carriers does not cease upon proof that they exercised all the diligence of a good father of a family in the selection and supervision of their employees 13. COURT OF APPEALS: RULED IN FAVOR OF THE HEIRS 13.1. The appellate court gave weight to their argument that in order for a fortuitous event to exempt one from liability, it is necessary that he committed no negligence or misconduct that may have occasioned the loss. 13.2. In this case, the CA noted that Padilla failed to employ reasonable foresight, diligence and care needed to exempt G & S from liability for Jose Marcial's death. 13.3. Said court also quoted pertinent portions of the MTC decision convicting Padilla of reckless imprudence resulting in homicide to negate G & S' claim that the proximate cause of the accident was the fault of the driver of the delivery van who allegedly hit the right side of the taxicab. 13.4. And just like the trial court, the CA found insufficient the evidence adduced by G & S to support its claim that it exercised due diligence in the selection and supervision of its employees. 13.5. CA did not give credit to the certification issued by the USAID (Ochoa’s employer) to evince the award for loss of earning capacity 13.5.1. SELF-SERVING, UNRELIABLE, AND BIASED 13.5.1.1. While said certification states that Jose Marcial was earning an annual salary of P450,844.49 at the time of his untimely demise, the CA noted that same is unsupported by competent evidence such as income tax returns or receipts (People v. Ereno) 13.5.1.1.1. Before the SC, the heirs aver that the appellate court gravely erred in relying upon Ereño as said case is not on all fours with the present case. 13.5.1.1.2. They contend that in Ereño, this Court disallowed the award for loss of income because the only proof presented was a handwritten statement of the victim's spouse stating the daily income of the deceased as a self-employed fish vendor. 13.5.1.1.3. The heirs argue that the reason why this Court declared said handwritten statement as self-serving is because the one who prepared it, the deceased's wife, was also the one who would directly and personally benefit from such an award 13.5.1.1.4. In addition, the heirs point out that the authenticity and accuracy of said Certification was neither questioned by G & S nor discredited by any controverting evidence. In fact, its admission by the trial court was not even assigned by G & S as an error in their appeal before the CA. G & S avers that the Certification issued by USAID is self-serving because the USAID officer who issued it has not been put on the witness stand to validate the contents thereof. Moreover, said Certification was not supported by competent evidence such as income tax returns and receipts. G & S likewise finds the reduction of the award of moral damages appropriate in view of the settled rule that moral damages are not meant to enrich the complainant at the expense of the defendant. SUPREME COURT 1. In this case, the said three issues boil down to the determination of the following questions: What is the proximate cause of the death of Jose Marcial? Is the testimony of prosecution witness Clave credible? Did G & S exercise the diligence of a good father of a family in the selection and supervision of its employees? 1.1. Suffice it to say that these are all questions of fact which require this Court to inquire into the probative value of the evidence presented before the trial court. 1.2. As we have consistently held, "[t]his Court is not a trier of facts. It is not a function of this court to analyze or weigh evidence. 1.3. When we give due course to such situations, it is solely by way of exception. Such exceptions apply only in the presence of extremely meritorious circumstances." 1.4. Here, we note that although G & S enumerated in its Consolidated Memorandum the exceptions to the rule that a petition for review on certiorari should only raise questions of law, it nevertheless did not point out under what exception its case falls.

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1.5. And, upon review of the records of the case, we are convinced that it does not fall under any. Hence, we cannot proceed to resolve said issues and disturb the findings and conclusions of the CA with respect thereto. THERE IS A CONTRACT OF CARRIAGE BETWEEN G&S AND OCHOA 2.1. As a common carrier, G & S "is bound to carry [Jose Marcial] safely as far as human care and foresight can provide, using the utmost diligence of very cautious persons, with due regard for all the circumstances." 2.2. "In a contract of carriage, it is presumed that the common carrier is at fault or is negligent when a passenger dies or is injured. In fact, there is even no need for the court to make an express finding of fault or negligence on the part of the common carrier. This statutory presumption may only be overcome by evidence that the carrier exercised extraordinary diligence." 2.3. Unfortunately, G & S miserably failed to overcome this presumption. Both the trial court and the CA found that the accident which led to Jose Marcial's death was due to the reckless driving and gross negligence of G & S' driver, Padilla, thereby holding G & S liable to the heirs of Jose Marcial for breach of contract of carriage. THE ACQUITTAL OF PADILLA IN THE CRIMINAL CASE IS IMMATERIAL TO THE INSTANT CASE FOR BREACH OF CONTRACT 3.1. NCC 31: When the civil action is based on an obligation not arising from the act or omission complained of as a felony, such civil action may proceed independently of the criminal proceedings and regardless of the result of the latter. 3.2. CANCIO V. ISIP: In the instant case, it must be stressed that the action filed by petitioner is an independent civil action, which remains separate and distinct from any criminal prosecution based on the same act. Not being deemed instituted in the criminal action based on culpa criminal, a ruling on the culpability of the offender will have no bearing on said independent civil action based on an entirely different cause of action, i.e., culpa contractual." In this case, the action filed by the heirs is primarily for the recovery of damages arising from breach of contract of carriage allegedly committed by G & S. 4.1. Clearly, it is an independent civil action arising from contract which is separate and distinct from the criminal action for reckless imprudence resulting in homicide filed by the heirs against Padilla by reason of the same incident. 4.2. Hence, regardless of Padilla's acquittal or conviction in said criminal case, same has no bearing in the resolution of the present case. 4.3. There was therefore no error on the part of the CA when it resolved this case without regard to the fact that Padilla has already been acquitted by the RTC in the criminal case. THE DENIAL BY THE CA OF THE HEIRS’ CLAIM FOR LOST EARNINGS IS UNWARRANTED 5.1. ERENO RULING WAS REITERATED IN PEOPLE V. YRAT 5.2. PEOPLLE V. CARAIG: "documentary evidence should be presented to substantiate the claim for damages for loss of earning capacity. By way of exception, damages therefor may be awarded despite the absence of documentary evidence, provided that there is testimony that the victim was either (1) self-employed earning less than the minimum wage under current labor laws, and judicial notice may be taken of the fact that in the victim's line of work no documentary evidence is available; or (2) employed as a daily-wage worker earning less than the minimum wage under current labor laws". 5.3. PEYTO V. LOMBOY: "failure to present documentary evidence to support a claim for loss of earning capacity of the deceased need not be fatal to its cause. Testimonial evidence suffices to establish a basis for which the court can make a fair and reasonable estimate of the loss of earning capacity". Hence, we held as sufficient to establish a basis for an estimate of damages for loss of earning capacity the testimony of the victim's widow that her husband was earning a monthly income of P8,000.00 REVERSED IN VICTORY LINER V. GAMMAD AND LICAYCO V. PEOPLE 5.4. ERENO NOT APPLICABLE 5.4.1.The CA sweepingly concluded that the USAID Certification is self-serving and unreliable without elaborating on how it was able to arrive at such a conclusion. 5.4.2.The USAID is an "independent federal government agency that receives over-all foreign policy guidance from the Secretary of the State [of the United States] 5.4.2.1. Given this background, it is highly improbable that such an agency will issue a certification containing unreliable information regarding an employee's income. Besides, there exists a presumption that official duty has been regularly performed 5.4.2.2. Absent any showing to the contrary, it is presumed that Cruz, as Chief of Human Resources Division of USAID, has regularly performed his duty relative to the issuance of said certification and therefore, the correctness of its contents can be relied upon. This presumption remains especially so where the authenticity, due execution and correctness of said certification have not been put in issue either before the trial court or the CA.

5.4.2.3. The USAID certification cannot be said to be self-serving because it does not refer to an act or declaration made out of court by the heirs themselves as parties to this case. 6. Here, there is no question that the heirs are likewise entitled to moral damages pursuant to the above provisions, considering the mental anguish suffered by them by reason of Jose Marcial's untimely death, as can be deduced from the following testimony of his wife Ruby RE: COMPLAINT OF CONCERNED MEMBERS OF CHINESE GROCERS ASSOCIATION (CGA) AGAINST JUSTICE SOCORRO INTING OF THE COURT OF APPEALS BRION, J. FACTS 1. The CGA is the owner of a parcel of land with an area of 315 square meters located in Manila, registered under Transfer Certificate of Title (TCT) No. 42417 2. Sometime in 2008, Romualdo dela Cruz (dela Cruz) filed a petition for the issuance of a new owner's duplicate copy of TCT No. 42417, claiming that the old owner's duplicate copy had been misplaced. 2.1. This petition was assigned to the sala of then Judge Inting, presiding Judge of Branch IV, RTC Manila 3. In the petition, dela Cruz claimed that: 3.1. The Office of the Register of Deeds had already been notified of the loss through an Affidavit of Loss; 3.2. TCT No. 42417 issued in the name of the CGA is still valid and subsisting; 3.3. Copies of the Notice of Hearing have been duly posted, as evidenced by the Sheriff's Certificate of Posting; and 3.4. dela Cruz's interest in filing this petition is based on his right as a vendee of the property, as evidenced by the Deed of Absolute Sale dated August 19, 2008, allegedly executed between CGA, represented by Ang E. Bio, and dela Cruz 4. On June 16, 2009, Justice Inting issued an order granting dela Cruz's petition 4.1. CONSEQUENCE: ISSUANCE OF A NEW OWNER’S DUPLICATE OF TCT IN LIEU OF THE LOST ONE 5. Since no motion for reconsideration or notice of appeal was filed challenging Justice Inting's June 16, 2009 Order within the reglementary period provided by law, the order became final and executory, and the new owner's duplicate title was given to dela Cruz. 6. THE [UNSIGNED] LETTER COMPLAINT 6.1. The Concerned Members of CGA claimed that Justice Inting acted with gross neglect when she granted dela Cruz's petition for the issuance of a new owner's duplicate copy of TCT No. 42417 6.2. To recall, dela Cruz filed the petition as the alleged vendee of the property. 6.3. However, the complainants point out that the Deed of Absolute Sale dated August 15, 2008, the basis for dela Cruz's interest and right to file the petition, should have aroused Justice Inting's suspicion as it was allegedly signed on behalf of CGA by Ang E. Bio, who died on August 28, 2001. 6.4. The complainants also found it suspicious that Justice Inting did not question dela Cruz on the particulars of the sale – 6.4.1. What the basis was of Bio's authority to represent CGA in the sale, 6.4.2.Whether dela Cruz had paid the applicable taxes in relation to the alleged sale, and 6.4.3.Why the land was sold for only P5,500,000.00 when it was worth at least P50 million -before granting the petition. 6.5. The complainants further faulted Justice Inting for not asking dela Cruz why he, and not CGA, filed the petition. 7. JUDGE INTING’S COMMENT 7.1. Averred that there was nothing suspicious in dela Cruz filing the petition as a vendee since Section 109 of Presidential Decree No. 1529 (Property Registration Decree) allows another person in interest to file a petition for the issuance of a new owner's duplicate title. 7.1.1.She further explained that on May 8, 2009, the Acting Chief of the Clerks of Court Division issued a Notice of Hearing addressed to dela Cruz, the Register of Deeds of Manila and the CGA, setting the case for hearing on June 3, 2009. 7.1.2.The court's process server also posted this Notice of Hearing on May 13, 2009 at three conspicuous public places in Manila. 7.1.3.However, no representative of CGA appeared to participate in the proceedings or oppose the petition at the initial hearing on June 3, 2009. Accordingly, Justice Inting allowed dela Cruz to present his evidence ex-parte before Atty. 7.1.4.Cheryl Morales, the Chief of the Clerks of Court Division of the Land Registration Authority. 7.1.5.Based on the evidence presented, consisting of the notarized Deed of Absolute Sale between CGA and dela Cruz, and the Affidavit of Loss registered with the Register of Deeds and annotated at the back of the original title in the possession of the Register of Deeds of Manila, and given CGA's lack of opposition, Justice Inting granted the petition.

7.2. Justice Inting further emphasized that she did not transfer title over the land to dela Cruz; rather, she merely issued an order granting the issuance of a new owner's duplicate copy of TCT No. 42417, with the same terms and conditions as the original. 7.3. She also denied the complainants' claim that she knew dela Cruz prior to this case, stressing the fact that she only met dela Cruz when he appeared before her court with his attorney to comply with the petition's jurisdictional requirements. 7.4. Justice Inting also questioned the complainants' failure to take the necessary remedial actions against the order, such as filing a petition for relief of judgment within the reglementary period, as well as their failure to file any criminal action against dela Cruz, the instigator of the alleged fraudulent sale. PERTINENT LAW: SECTION 109 OF PD 1529 Section 109. Notice and replacement of lost duplicate certificate. - In case of loss or theft of an owner's duplicate certificate of title, due notice under oath shall be sent by the owner or by someone in his behalf to the Register of Deeds of the province or city where the land lies as soon as the loss or theft is discovered. If a duplicate certificate is lost or destroyed, or cannot be produced by a person applying for the entry of a new certificate to him or for the registration of any instrument, a sworn statement of the fact of such loss or destruction may be filed by the registered owner or other person in interest and registered. Upon the petition of the registered owner or other person in interest, the court may, after notice and due hearing, direct the issuance of a new duplicate certificate, which shall contain a memorandum of the fact that it is issued in place of the lost duplicate certificate, but shall in all respects be entitled to like faith and credit as the original duplicate, and shall thereafter be regarded as such for all purposes of this decree. SUPREME COURT 1. The above-quoted provision clearly allows a person who is not the owner of the property to file the petition for a new duplicate certificate, provided the person has interest in the property. 2. The next logical question is - was dela Cruz a person in interest to the subject property? 2.1. We find that he was 2.1.1.Given the fact that he had what appeared to be a validly notarized Deed of Absolute Sale over the subject property in his favor 2.1.2.As a public document, the subject Deed of Absolute Sale has in its favor the presumption of regularity 2.1.3.To contradict it, one must present evidence that is clear and convincing; otherwise, the document should be upheld 3. In the present case, however, no one from CGA appeared during the proceedings to oppose dela Cruz's petition or to bring to Justice Inting's attention the fact that Ang Bio was already dead at the time the deed of sale was allegedly executed. 3.1. Given the lack of any evidence to assume otherwise, Justice Inting correctly relied on the notarized Deed of Sale's presumption of regularity. 4. As for the complainants' allegation that Justice Inting had the duty to inquire into the details of the alleged sale, we reiterate that in a petition for the issuance of a new owner's duplicate copy of a certificate of title, the RTC, acting only as a land registration court with limited jurisdiction, has no jurisdiction to pass upon the question of actual ownership of the land covered by the lost owner's duplicate copy of the certificate of title 4.1. Questions involving the issue of ownership have to be threshed out in a separate suit where the trial court will conduct a full-blown hearing with the parties presenting their respective evidence to prove ownership over the subject realty 4.2. After all, the objective of a petition for the issuance of a new owner's duplicate copy is merely to determine two things – 4.2.1.that the owner's duplicate copy of the certificate of title was actually lost; and 4.2.2.that the person who filed the petition has sufficient interest in the property covered by the title to acquire a copy of the same. It was thus not for Justice Inting to question dela Cruz on the specifics of the purported sale (i.e., why the land was sold to dela Cruz at such a low price, whether dela Cruz paid the applicable taxes for the transfer of the property, etc.) during these proceedings. 4.3. In administrative proceedings, the complainant has the burden of proving the allegations in the complaint with substantial evidence, i.e., that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion 4.3.1.In the absence of evidence to the contrary, the presumption that respondent regularly performed her duties will prevail. (CONCERNED LAWYERS OF BULACAN V. VILLALON-PORNILLOS

5. Apart from the questionable nature of the Deed of Absolute Sale in dela Cruz's favor, brought to light only now upon the presentation of the Certificate of Death, the complainants have not presented any other evidence to support the charge of misconduct leveled against Justice Inting. 5.1. Significantly, however, the complainants attached a mere photocopy of Ang Bio's Certificate of Death to their letter complaint. 5.2. While the Certificate of Death is indeed a public document, to prove its contents, there is a need to present a certified copy of this document, issued by the public officer in custody of the original document. 5.3. Since the Certificate of Death is not a certified copy, it is inadmissible as proof, and is considered a mere scrap of paper without any evidentiary value. REPUBLIC V. SANDIGANBAYAN SERENO, CJ The Second Division of the graft court denied admission of Exhibits “MMM” to “AAAAAAA” in the Formal Offer of Evidence filed by petitioner Republic FACTS 1. 24 years ago, the Republic, through the Presidential Commission on Good Government (PCGG), commenced a complaint for “reconveyance, reversion, accounting, restitution and damages” against Bienvenido R. Tantoco, Jr. (Tantoco), Dominador R. Santiago (Santiago), Ferdinand E. Marcos, Imelda, R. Marcos, Bienvenido R. Tantoco, Sr., Gliceria R. Tantoco, and Maria Lourdes Tantoco-Pineda. 1.1. Instead of filing an Answer, respondents Tantoco and Santiago filed a “Motion To Strike Out Some Portions of the Complaint and For Bill of Particulars,” which were both denied for lack of bases. 2. On 27 July 1989, Tantoco and Santiago filed with the Sandiganbayan a pleading denominated “Interrogatories to Plaintiff.” 3. A month later, they filed both an “Amended Interrogatories to Plaintiff” and a Motion for Production and Inspection of Documents. 4. This time, the Sandiganbayan admitted the Amended Interrogatories and granted the Motion for Production and Inspection of Documents. 4.1. When the PCGG elevated the issue to the Supreme Court, 4.1.1.this Court, through then Justice Andres R. Narvasa, affirmed the Orders of the Sandiganbayan 5. Pre-trial commenced, and from 3 January to 14 July 1993, the PCGG produced documents pre-marked as Exhibit “A” to “LLL” (64 exhibits) before Atty. Renato T. Bocar and respondents’ counsel 6. On 23 and 25 September 1996, the temporary markings of Exhibits “A” to “LLL,” together with their submarkings, were adopted. 6.1. However, over the objections of respondents Tantoco and Santiago, the PCGG produced and caused the pre-marking of additional documents, Exhibits “MMM” to “AAAAAAA 7. Tantoco and Santiago filed a “Motion under Rule 29 of the Rules of Court,” claiming that the additional documents were never produced at the discovery proceedings and praying that petitioner be sanctioned for contempt DENIED 8. Trial proceeded; however, new documents not shown at discovery were still being marked. Tantoco and Santiago again filed a “Motion to Ban Plaintiff From Offering Exhibits Not Earlier Marked During the Discovery Proceedings,” which the graft court denied on 29 May 2002 9. Petitioner filed its Formal Offer of Evidence on 16 March 2007. 10. On 15 January 2008, the Sandiganbayan ruled that with the exception of some documents, “all Exhibits... are denied admission. The due execution and authenticity of these documents remain challenged since the prosecution failed to show otherwise.” 11. On petitioners’ Motion for Reconsideration, the Sandiganbayan partly relented and admitted Exhibits “MMM” to “AAAAAAA” (Second Resolution). 11.1. As certified to by the Chief Administrative Officer of the PCGG, Exhibits “MMM” to “AAAAAAA” were turned over to its Legal Division 12. Respondents, in turn, filed their Motion for Reconsideration, to which the graft court issued the assailed Resolution 12.1. The plaintiff must be prevented from offering in evidence all the documents that were not produced and exhibited at the time the plaintiff was under a directive to do so, i.e. Exhibits “MMM” to “AAAAAAA” xxx. In arriving at this conclusion, the Court is not unmindful of the fact that the exhibits involved have not passed the test of admissibility in any event Petitioner Republic now raises the sole issue of whether or not the Sandiganbayan committed grave abuse of discretion in excluding the documents due to petitioner’s own failure to produce them at the pre-trial.

SUPREME COURT: WE DENY THE PETITION. 1. In excluding Exhibits “MMM” to “AAAAAAA,” the Sandiganbayan properly exercised its discretion over evidence formally offered by the prosecution. 1.1. Nothing therein shows that the court gravely exceeded its jurisdiction. 1.2. For the reviewing court to interfere with the exercise of discretion by the lower court, the petitioner must show that the former's action was attended by grave abuse of discretion, defined as a capricious and whimsical exercise of judgment, equivalent to lack of jurisdiction; or the exercise of power in an arbitrary manner by reason of passion, prejudice, or personal hostility, so patent or so gross as to amount to an evasion of a positive duty, to a virtual refusal to perform the mandated duty, or to act at all in contemplation of the law 2. Petitioner would have us reverse the Sandiganbayan solely because the latter purportedly made contrary rulings in its earlier Resolutions. 2.1. The Republic invokes the First Resolution, specifically the graft court’s view that the exclusion of the Exhibits “would be too technical,” since their non-production “could be attributed to inadvertence rather than willful disobedience.” 2.1.1.However, this First Resolution merely disposed of respondents’ Motion to cite petitioner in contempt. 2.1.2.It does not constitute an irrevocable stamp of admissibility. 3. Petitioner conveniently disregards the basic rule of evidence, namely, that the issue of the admissibility of documentary evidence arises only upon formal offer thereof. 3.1. This is why objection to the documentary evidence must be made at the time it is formally offered, and not earlier 3.2. INTERPACIFIC TRANSIT, INC V. AVILES: Objection to the identification and marking of the document is not equivalent to objection to the document when it is formally offered in evidence. What really matters is the objection to the document at the time it is formally offered as an exhibit. It would have been so simple for the defense to reiterate its former objection, this time seasonably, when the formal offer of exhibits was made. It is curious that it did not, especially so since the objections to the formal offer of exhibits was made in writing. In fact, the defense filed no objection at all not only to the photocopies but to all the other exhibits of the prosecution 4. Seasonable objection to the subject “Exhibits” can only be properly made upon formal offer. 4.1. The Sandiganbayan acknowledged that Tantoco and Santiago had been consistent in reiterating their objections. 4.2. The court even clarified in its First Resolution that their “Motion Filed Under Rule 29,” was but in pursuance of their continuing objection to the marking of evidence not produced at discovery. 4.3. Hence, nothing in the said Resolution can be read as a ruling on its admissibility. 4.3.1.Its dispositive portion clearly states: “Under all these circumstances, there is no basis for the Court to declare plaintiff in contempt of court and it would be too much of a technicality to bar it from introducing the additional exhibits in evidence.” 5. The Second Resolution, while issued after petitioner had submitted its Formal Offer of Evidence, noted that all the documents contained therein were photocopies. 5.1. It stated that a mere certification from the Clerk of Court that they “appear to be the original copy” would not suffice. 5.2. The Sandiganbayan still admitted them as evidence, yet the only reason cited for doing so was liberality, viz: “There is nothing in the rules which categorically prohibits the admission of additional documentary evidence when called for as a case progress [sic]. What is clear is that it is the Court’s discretion to allow or disallow its reception.” 5.3. Thus, the Sandiganbayan fittingly corrected itself when once and for all, it excluded the photocopies in its latest Resolution. 6. This Court discusses the contents and implications of the two earlier Resolutions, because petitioner simply has no other argument supporting its claim to reverse the Sandiganbayan. For those documents introduced in evidence as proof of their contents, the assailed Resolution stated that petitioner has not made any effort whatsoever to explain why it submitted mere photocopies. 6.1. Nothing on record shows, and petitioner itself makes no claim, that the Exhibits fall under any of the exceptions to the Best Evidence rule. Secondary evidence of the contents of writings is admitted on the theory that the original cannot be produced by the party who offers the evidence within a reasonable time by the exercise of reasonable diligence. Even then, the general rule is that secondary evidence is still not admissible until the non-production of the primary evidence has been sufficiently accounted for 7. The Separate Opinion concurs in our dismissal of the petition for failure to show that the Sandiganbayan committed grave abuse of discretion.

7.1. However, it disagrees with the latter’s misapplication of the Best Evidence Rule. While the Sandiganbayan provided several reasons for its ultimate exclusion of the documents, it did not distinguish: 1) Which particular documents are to be excluded for violation of the Best Evidence Rule; and 2) Which of the remaining ones it has treated as private documents that lacked proper authentication. 7.2. The detailed analysis of each piece of evidence vis-à-vis the purpose for which they were presented falls squarely under the purview and competence of the trial court. 7.2.1.The Supreme Court cannot substitute its own conclusions for the factual determinations of the trial court. 7.2.2.It is not the function of this Court to examine, review or evaluate the evidence. Absent any showing of grave abuse of discretion, as discussed above, this Court is then constrained to uphold the reasons forwarded by the Sandiganbayan. 7.3. The authority of the trial court to control its own discovery processes cannot be undermined. 7.3.1.In this case, the Sandiganbayan’s exercise of this power is neither whimsical nor oppressive. 7.3.2.A writ of certiorari is available only to review final judgments or decrees, and will be refused where there has been no final judgment or order and the proceeding for which the writ is sought is still pending and undetermined in the lower tribunal. Pursuant to this rule, it has been held that certiorari will not lie to review or correct discovery orders made prior to trial 8. As for the documentary evidence which are purportedly transmittal letters, petitioner remains unable to prove their due execution and authenticity 8.1. The fact that the documents were certified as true copies of the original by the PCGG does not enhance its admissibility. These documents have remained private even if it is in the custody of the PCGG. What became public are not the private documents (themselves) but the recording of it in the PCGG. For, “while public records kept in the Philippines, of private writings are also public documents...the public writing is not the writing itself but the public record thereof. Stated otherwise, if a private writing itself is inserted officially into a public record, its record, its recordation, or its incorporation into the public record becomes a public document, but that does not make the private writing itself a public document so as to make it admissible without authentication.” 9. Aside from lack of authentication and failure to present the originals of these documents, what ultimately tipped the scales against petitioner in the view of the graft court was the former’s lack of forthrightness in complying with the Supreme Court directive 9.1. Thereafter, it did not take long in the process of the presentation of plaintiff’s evidence before it became apparent that plaintiff’s exhibits consist mostly of documents which have not been exhibited during the discovery proceedings despite the directive of this Court as confirmed by the Supreme Court. Plaintiff’s failure to offer a plausible explanation for its concealment of the main bulk of its exhibits even when it was under a directive to produce them and even as the defendants were consistently objecting to the presentation of the concealed documents gives rise to a reasonable [inference] that the plaintiff, at the very outset, had no intention whatsoever of complying with the directive of this Court 9.2. Petitioner failed to obey the mandate of G.R. No. 90478, which remains an important case on pretrial and discovery measures to this day; the rationale of these rules, especially on the production of documents, must be constantly kept in mind by the bar 9.2.1.The truth is that "evidentiary matters" may be inquired into and learned by the parties before the trial. Indeed, it is the purpose and policy of the law that the parties — before the trial if not indeed even before the pre-trial — should discover or inform themselves of all the facts relevant to the action, not only those known to them individually, but also those known to adversaries; in other words, the desideratum is that civil trials should not be carried on in the dark; and the Rules of Court make this ideal possible through the deposition-discovery mechanism set forth in Rules 24 to 29. LADIGNON V. CA LEJANO V. PEOPLE PATULA V. PEOPLE OFFICIAL RECORD NEDLLOYD V. GLOW LAKS PEREZ, J.

FACTS 1. Petitioner Nedlloyd Lijnen B.V. Rotterdam (Nedlloyd) is a foreign corporation engaged in the business of carrying goods by sea, whose vessels regularly call at the port of Manila. 1.1. It is doing business in the Philippines thru its local ship agent, co-petitioner East Asiatic Co., Ltd. (East Asiatic). 2. Respondent Glow Laks Enterprises, Ltd., is likewise a foreign corporation organized and existing under the laws of Hong Kong. 2.1. It is not licensed to do, and it is not doing business in, the Philippines. 3. On or about 14 September 1987, respondent loaded on board M/S Scandutch at the Port of Manila a total 343 cartoons of garments, complete and in good order for pre-carriage to the Port of Hong Kong. 3.1. The goods covered by Bills of Lading arrived in good condition in Hong Kong and were transferred to M/S Amethyst for final carriage to Colon, Free Zone, Panama 3.2. Both vessels, M/S Scandutch and M/S Amethyst, are owned by Nedlloyd represented in the Phlippines by its agent, East Asiatic 4. Upon arrival of the vessel at the Port of Colon on 23 October 1987, petitioners purportedly notified the consignee of the arrival of the shipments, and its custody was turned over to the National Ports Authority in accordance with the laws, customs regulations and practice of trade in Panama. 4.1. By an unfortunate turn of events, however, unauthorized persons managed to forge the covering bills of lading and on the basis of the falsified documents, the ports authority released the goods 5. On 16 July 1988, respondent filed a formal claim with Nedlloyd for the recovery of the amount of US$53,640.00 representing the invoice value of the shipment but to no avail. 5.1. Claiming that petitioners are liable for the misdelivery of the goods, respondent initiated Civil Case No. 88-45595 before the Regional Trial Court (RTC) of Manila, Branch 52, seeking for the recovery of the amount of US$53,640.00, including the legal interest from the date of the first demand 6. PETITIONER’S ANSWER TO COMPLAINT 6.1. They were never remiss in their obligation as a common carrier and the goods were discharged in good order and condition into the custody of the National Ports Authority of Panama in accordance with the Panamanian law. 6.2. They averred that they cannot be faulted for the release of the goods to unauthorized persons, their extraordinary responsibility as a common carrier having ceased at the time the possession of the goods were turned over to the possession of the port authorities. 7. RTC: ORDERED THE DISMISSAL OF THE COMPLAINT BUT GRANTED P’S COUNTERCLAIMS 7.1. In effect, respondent was directed to pay petitioners the amount of P120,000.00 as indemnification for the litigation expenses incurred by the latter. 7.2. In releasing the common carrier from liability for the misdelivery of the goods, the RTC ruled that Panama law was duly proven during the trial and pursuant to the said statute, carriers of goods destined to any Panama port of entry have to discharge their loads into the custody of Panama Ports Authority to make effective government collection of port dues, customs duties and taxes. 7.3. The subsequent withdrawal effected by unauthorized persons on the strength of falsified bills of lading does not constitute misdelivery arising from the fault of the common carrier 8. COURT OF APPEALS: REVERSED THE FINDINGS OF THE RTC AND HELD THAT FOREIGN LAWS WERE NOT PROVEN IN ACCORDANCE WITH 132.24, AND THEREFORE IT CANNOT BE GIVEN FULL FAITH AND CREDIT. 8.1. For failure to prove the foreign law and custom, it is presumed that foreign laws are the same as our local or domestic or internal law under the doctrine of processual presumption. Under the New Civil Code, the discharge of the goods into the custody of the ports authority therefore does not relieve the common carrier from liability because the extraordinary responsibility of the common carriers lasts until actual or constructive delivery of the cargoes to the consignee or to the person who has the right to receive them. Absent any proof that the notify party or the consignee was informed of the arrival of the goods, the appellate court held that the extraordinary responsibility of common carriers remains. Accordingly, the Court of Appeals directed petitioners to pay respondent the value of the misdelivered goods in the amount of US$53,640.00. SUPREME COURT: THE PETITION IS BEREFT OF MERIT It is well settled that foreign laws do not prove themselves in our jurisdiction and our courts are not

authorized to take judicial notice of them. Like any other fact, they must be alleged and proved. To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court[14] which read: SEC. 24. Proof of official record. — The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice- consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. SEC. 25. What attestation of copy must state. — Whenever a copy of a document or record is attested for the purpose of the evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. For a copy of a foreign public document to be admissible, the following requisites are mandatory: (1) it must be attested by the officer having legal custody of the records or by his deputy; and (2) it must be accompanied by a certificate by a secretary of the embassy or legation, consul general, consul, vice-consular or consular agent or foreign service officer, and with the seal of his office. Such official publication or copy must be accompanied, if the record is not kept in the Philippines, with a certificate that the attesting officer has the legal custody thereof. The certificate may be issued by any of the authorized Philippine embassy or consular officials stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. The attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be, and must be under the official seal of the attesting officer. Contrary to the contention of the petitioners, the Panamanian laws, particularly Law 42 and its Implementing Order No. 7, were not duly proven in accordance with Rules of Evidence and as such, it cannot govern the rights and obligations of the parties in the case at bar. While a photocopy of the Gaceta Official of the Republica de Panama No. 17.596, the Spanish text of Law 42 which is the foreign statute relied upon by the court a quo to relieve the common carrier from liability, was presented as evidence during the trial of the case below, the same however was not accompanied by the required attestation and certification. It is explicitly required by Section 24, Rule 132 of the Revised Rules of Court that a copy of the statute must be accompanied by a certificate of the officer who has legal custody of the records and a certificate made by the secretary of the embassy or legation, consul general, consul, vice-consular or by any officer in the foreign service of the Philippines stationed in the foreign country, and authenticated by the seal of his office. The latter requirement is not merely a technicality but is intended to justify the giving of full faith and credit to the genuineness of the document in a foreign country. Certainly, the deposition of Mr. Enrique Cajigas, a maritime law practitioner in the Republic of Panama, before the Philippine Consulate in Panama, is not the certificate contemplated by law. At best, the deposition can be considered as an opinion of an expert witness who possess the required special knowledge on the Panamanian laws but could not be recognized as proof of a foreign law, the deponent not being the custodian of the statute who can guarantee the genuineness of the document from a foreign country. To admit the deposition as proof of a foreign law is, likewise, a disavowal of the rationale of Section 24, Rule 132 of the Revised Rules of Court, which is to ensure authenticity of a foreign law and its existence so as to justify its import and legal consequence on the event or transaction in issue. The above rule, however, admits exceptions, and the Court in certain cases recognized that Section 25, Rule 132 of the Revised Rules of Court does not exclude the presentation of other competent evidence to prove the existence of foreign law. In Willamete Iron and Steel Works v. Muzzal for instance, we allowed the foreign law to be established on the basis of the testimony in open court during the trial in the Philippines of an attorney-at-law in San Francisco, California, who quoted the particular foreign law sought to be established. The ruling is peculiar to the facts. Petitioners cannot invoke the Willamete ruling to secure affirmative relief since their so called expert witness never cthe

foreign law, was obtained ex-parte. It is worth reiterating at this point that under the rules of private international law, a foreign law must be properly pleaded and proved as a fact. In the absence of pleading and proof, the laws of the foreign country or state will be presumed to be the same as our local or domestic law. This is known as processual presumption. While the foreign law was properly pleaded in the case at bar, it was, however, proven not in the manner provided by Section 24, Rule 132 of the Revised Rules of Court. The decision of the RTC, which proceeds from a disregard of specific rules cannot be recognized. VDA. DE CATALAN V. CATALAN-LEE SERENO, J. Under the principle of comity, a valid divorce obtained by a spouse of foreign nationality is recognized in the Philippines. However, the validity of the foreign divorce must be proven in court of competent jurisdiction in the PH; otherwise, a second marriage is void-bigamous. Should the divorce and the subsequent marriage be proven valid, a second spouse has the preferential right to be issued the letters of administration over the estate of the decedent. (Legarda) FACTS 1. Orlando B. Catalan was a naturalized American citizen. 1.1. After allegedly obtaining a divorce in the United States from his first wife, Felicitas Amor, he contracted a second marriage with petitioner herein. 2. On 18 November 2004, Orlando died intestate in the Philippines 3. On 28 February 2005, petitioner filed with the RTC a Petition for the issuance of letters of administration for her appointment as administratrix of the intestate estate of Orlando 3.1. On 3 March 2005, while Spec. Proc. No. 228 was pending, respondent Louella A. Catalan-Lee, one of the children of Orlando from his first marriage, filed a similar petition with the RTC 3.2. THE TWO CASES WERE CONSOLIDATED. 4. Petitioner prayed for the dismissal of Spec. Proc. No. 232 on the ground of litis pendentia, considering that Spec. Proc. No. 228 covering the same estate was already pending 5. CATALAN-LEE (RESPONDENT) 5.1. Alleged that petitioner was not considered an interested person qualified to file a petition for the issuance of letters of administration of the estate of Orlando. 5.2. In support of her contention, respondent alleged that a criminal case for bigamy was filed against petitioner before Branch 54 of the RTC of Alaminos 5.3. ANTECEDNT INCIDENTS 5.3.1. THE FIRST WIFE, FELICITAS AMOR, FILED A COMPLAINT FOR BIGAMY, ALLEGING THAT PETITIONER CONTRACTED A SECOND MARRIAGE TO ORLANDO DESPITE HAVING BEEN ALREADY MARRIED TO EUSEBIO IN 12 DEC 1959 5.3.1.1. On 6 August 1998, the RTC had acquitted petitioner of bigamy. 5.3.1.2. BUT, the trial court ALSO ruled that since the deceased was a divorced American citizen, and since that divorce was not recognized under Philippine jurisdiction, the marriage between him and petitioner was not valid. 5.3.1.3. Furthermore, it took note of the action for declaration of nullity then pending action with the trial court in Dagupan City filed by Felicitas Amor against the deceased and petitioner. It considered the pending action to be a prejudicial question in determining the guilt of petitioner for the crime of bigamy. 5.3.1.4. Finally, the trial court found that, in the first place, petitioner had never been married to Eusebio Bristol. 6. On 26 June 2006, Branch 70 of the RTC of Burgos, Pangasinan dismissed the Petition for the issuance of letters of administration filed by petitioner and granted that of private respondent 6.1. Contrary to its findings in Crim. Case No. 2699-A, the RTC held that the marriage between petitioner and Eusebio Bristol was valid and subsisting when she married Orlando. 6.2. Without expounding, it reasoned further that her acquittal in the previous bigamy case was fatal to her cause. 6.3. Thus, the trial court held that petitioner was not an interested party who may file a petition for the issuance of letters of administration 7. Petitioner reiterated before the CA that the Petition filed by respondent should have been dismissed on the ground of litis pendentia. She also insisted that, while a petition for letters of administration may have

been filed by an "uninterested person," the defect was cured by the appearance of a real party-ininterest. Thus, she insisted that, to determine who has a better right to administer the decedent's properties, the RTC should have first required the parties to present their evidence before it ruled on the matter. 8. COURT OF APPEALS 8.1. First, it held that petitioner undertook the wrong remedy. She should have instead filed a petition for review rather than a petition for certiorari. 8.2. Second, LITIS PENDENTIA INAPPLICABLE 8.2.1.For litis pendentia to be a ground for the dismissal of an action, there must be: (a) identity of the parties or at least such as to represent the same interest in both actions; (b) identity of rights asserted and relief prayed for, the relief being founded on the same acts, and (c) the identity in the two cases should be such that the judgment which may be rendered in one would, regardless of which party is successful, amount to res judicata in the other 8.2.2.A petition for letters of administration is a special proceeding. A special proceeding is an application or proceeding to establish the status or right of a party, or a particular fact. And, in contrast to an ordinary civil action, a special proceeding involves no defendant or respondent. The only party in this kind of proceeding is the petitioner of the applicant. Considering its nature, a subsequent petition for letters of administration can hardly be barred by a similar pending petition involving the estate of the same decedent unless both petitions are filed by the same person. In the case at bar, the petitioner was not a party to the petition filed by the private respondent, in the same manner that the latter was not made a party to the petition filed by the former. The first element of litis pendentia is wanting. The contention of the petitioner must perforce fail 8.3. The petitioner, armed with a marriage certificate, filed her petition for letters of administration. 8.3.1.As a spouse, the petitioner would have been preferred to administer the estate of Orlando B. Catalan. 8.3.2.However, a marriage certificate, like any other public document, is only prima facie evidence of the facts stated therein. 8.3.3.The fact that the petitioner had been charged with bigamy and was acquitted has not been disputed by the petitioner. Bigamy is an illegal marriage committed by contracting a second or subsequent marriage before the first marriage has been dissolved or before the absent spouse has been declared presumptively dead by a judgment rendered in a proper proceedings. 8.3.4.The deduction of the trial court that the acquittal of the petitioner in the said case negates the validity of her subsequent marriage with Orlando B. Catalan has not been disproved by her. There was not even an attempt from the petitioner to deny the findings of the trial court. 8.3.5.There is therefore no basis for us to make a contrary finding. Thus, not being an interested party and a stranger to the estate of Orlando B. Catalan, the dismissal of her petition for letters of administration by the trial court is in place. She alleged that the reasoning of the CA was illogical in stating, on the one hand, that she was acquitted of bigamy, while, on the other hand, still holding that her marriage with Orlando was invalid. She insists that with her acquittal of the crime of bigamy, the marriage enjoys the presumption of validity. SUPREME COURT At the outset, it seems that the RTC in the special proceedings failed to appreciate the finding of the RTC in Crim. Case No. 2699-A that petitioner was never married to Eusebio Bristol. Thus, the trial court concluded that, because petitioner was acquitted of bigamy, it follows that the first marriage with Bristol still existed and was valid. By failing to take note of the findings of fact on the nonexistence of the marriage between petitioner and Bristol, both the RTC and CA held that petitioner was not an interested party in the estate of Orlando. (THEY’RE SAYING NA SHE’S MARRIED TO BRISTOL, WALANG BIGAMY KASI VOID YUNG KASAL NIYA WITH ORLANDO) 1. UNDER THE PRINCIPLES OF COMITY, PH JURISDICTION RECOGNIZES A VALID DIVORCE OBTAINED BY A SPOUSE OF A FOREIGN NATIONALITY 1.1. VAN DORM V. ROMMILLO (1985): It is true that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute divorces[,] the same being considered contrary to our concept of public policy and morality. However, aliens may obtain divorces abroad, which may be recognized in the Philippines, provided they are valid according to their national law. In this case, the divorce in Nevada released private respondent from the marriage from the standards of American law, under which divorce dissolves the marriage. 1.2. LLORENTE V. CA: In Van Dorn v. Romillo, Jr. we held that owing to the nationality principle embodied in Article 15 of the Civil Code, only Philippine nationals are covered by the policy against absolute

divorces, the same being considered contrary to our concept of public policy and morality. In the same case, the Court ruled that aliens may obtain divorces abroad, provided they are valid according to their national law. Citing this landmark case, the Court held in Quita v. Court of Appeals, that once proven that respondent was no longer a Filipino citizen when he obtained the divorce from petitioner, the ruling in Van Dorn would become applicable and petitioner could "very well lose her right to inherit" from him. In Pilapil v. Ibay-Somera, we recognized the divorce obtained by the respondent in his country, the Federal Republic of Germany. There, we stated that divorce and its legal effects may be recognized in the Philippines insofar as respondent is concerned in view of the nationality principle in our civil law on the status of persons. 1.3. GARCIA V. RECIO: Before a foreign judgment is given presumptive evidentiary value, the document must first be presented and admitted in evidence. A divorce obtained abroad is proven by the divorce decree itself. Indeed the best evidence of a judgment is the judgment itself. The decree purports to be a written act or record of an act of an official body or tribunal of a foreign country. Under Sections 24 and 25 of Rule 132, on the other hand, a writing or document may be proven as a public or official record of a foreign country by either (1) an official publication or (2) a copy thereof attested by the officer having legal custody of the document. If the record is not kept in the Philippines, such copy must be (a) accompanied by a certificate issued by the proper diplomatic or consular officer in the Philippine foreign service stationed in the foreign country in which the record is kept and (b) authenticated by the seal of his office. The divorce decree between respondent and Editha Samson appears to be an authentic one issued by an Australian family court. However, appearance is not sufficient; compliance with the aforementioned rules on evidence must be demonstrated. Fortunately for respondent's cause, when the divorce decree of May 18, 1989 was submitted in evidence, counsel for petitioner objected, not to its admissibility, but only to the fact that it had not been registered in the Local Civil Registry of Cabanatuan City. The trial court ruled that it was admissible, subject to petitioner's qualification. Hence, it was admitted in evidence and accorded weight by the judge. Indeed, petitioner's failure to object properly rendered the divorce decree admissible as a written act of the Family Court of Sydney, Australia. Compliance with the quoted articles (11, 13 and 52) of the Family Code is not necessary; respondent was no longer bound by Philippine personal laws after he acquired Australian citizenship in 1992. Naturalization is the legal act of adopting an alien and clothing him with the political and civil rights belonging to a citizen. Naturalized citizens, freed from the protective cloak of their former states, don the attires of their adoptive countries. By becoming an Australian, respondent severed his allegiance to the Philippines and the vinculum juris that had tied him to Philippine personal laws. Respondent contends that the burden to prove Australian divorce law falls upon petitioner, because she is the party challenging the validity of a foreign judgment. The burden of proof lies with the "party who alleges the existence of a fact or thing necessary in the prosecution or defense of an action." In civil cases, plaintiffs have the burden of proving the material allegations of the complaint when those are denied by the answer; and defendants have the burden of proving the material allegations in their answer when they introduce new matters. Since the divorce was a defense raised by respondent, the burden of proving the pertinent Australian law validating it falls squarely upon him. It is well-settled in our jurisdiction that our courts cannot take judicial notice of foreign laws. Like any other facts, they must be alleged and proved. Australian marital laws are not among those matters that judges are supposed to know by reason of their judicial function. The power of judicial notice must be exercised with caution, and every reasonable doubt upon the subject should be resolved in the negative DISPOSITIVE: REMANDED TO THE SC. It appears that the trial court no longer required petitioner to prove the validity of Orlando's divorce under the laws of the United States and the marriage between petitioner and the deceased. Thus, there is a need to remand the proceedings to the trial court for further reception of

evidence to establish the fact of divorce. Should petitioner prove the validity of the divorce and the subsequent marriage, she has the preferential right to be issued the letters of administration over the estate. Otherwise, letters of administration may be issued to respondent, who is undisputedly the daughter or next of kin of the deceased, in accordance with Sec. 6 of Rule 78 of the Revised Rules of Court. REPUBLIC V. LYDIA CAPCO DE TENSUAN LEONARDO-DE CASTRO, J. FACTS 1. On August 11, 1998, Tensuan, represented by her sister, Claudia C. Aruelo (Aruelo), filed with the MeTC an Application for Registration of several parcels of lands 2. IN HER APPLICATION FOR REGISTRATION, TENSUAN ALLEGED: 2.1. THAT SHE WAS THE ABSOLUTE OWNER OF THE SUBJECT PROPERTIES 2.2. That said two (2) parcels of land at the last assessment for taxation were assessed at PHP 60,820.00 2.3. That to the best of the knowledge and belief of Applicant, there is no mortgage, encumbrance or transaction affecting said two (2) parcels of land, nor is there any other person having any interest therein, legal or equitable, or in adverse possession thereof (THAT SUCH IS UNENCUMBERED) 2.4. That Applicant has acquired said parcels of land by inheritance from her deceased father, Felix Capco, by virtue of a “[Kasulatan] ng Paghahati-hati at Pag-aayos ng Kabuhayan” dated September 14, 1971, and Applicant specifically alleges that she and her deceased father, as well as the latter’s predecessors-in-interest, have been in open, continuous, exclusive and notorious possession and occupation of the said lands under a bonafide claim of ownership since June 12, 1945, and many years earlier, as in fact since time immemorial, as provided under Section 14(1) of Presidential Decree No. 1529 2.5. That said parcels of land are and have been, since the inheritance thereof, occupied by Applicant herself 3. On August 20, 1998, Tensuan filed an Urgent Ex Parte Motion to Withdraw Lot 1109-B from the Application for Registration and to Amend the Application. 3.1. According to Tensuan, she was withdrawing her Application for Registration of Lot 1109-B because a review of Plan Swo-00-001456 had revealed that said lot, with an area of 338 square meters, was a legal easement. 3.2. GRANTED! 4. The Republic, through the Office of the Solicitor General (OSG), filed an Opposition to Tensuan’s Application for Registration on December 28, 1998. 4.1. ALLEGATIONS: 4.1.1.Neither Tensuan nor her predecessors-in-interest have been in open, continuous, exclusive, and notorious possession and occupation of the subject property since June 12, 1945 or prior thereto 4.1.2.The muniment/s of title and/or tax declaration/s and tax payment receipt/s attached to the application do/es not constitute competent and sufficient evidence of a bona fide acquisition of the subject property or of Tensuan’s open, continuous, exclusive, and notorious possession and occupation of the subject property in the concept of owner since June 12, 1945 or prior thereto 4.1.3.The claim of ownership in fee simple on the basis of Spanish title or grant can no longer be availed of by Tensuan who failed to file an appropriate application for registration within the period of six months from February 16, 1976, as required by Presidential Decree No. 892; and 4.1.4.The subject property forms part of the public domain not subject of private appropriation 5. The LAGUNA LAKE AUTHORITY (LLDA) also filed an Opposition (2-12-99) to Tensuan’s Application for Registration 5.1. Arguments 5.1.1.Property is public land 5.1.1.1. BASIS: RA 8450; the technical descriptions appearing in the Notice of the Initial Hearing indicated that the lot subject of this application for registration is located below the reglementary lake elevation of 12.50 meters referred to datum 10.00 meters below mean lower water. Site is, therefore, part of the bed of Laguna Lake 5.1.2.That Section 41 of Republic Act No. 4850, states that, “whenever Laguna Lake or Lake is used in this Act, the same shall refer to Laguna de Bay which is that area covered by the lake water when it is at the average annual maximum lake level of elevation of 12.50 meters, as referred to a datum 10.0 meters below mean lower low water (MLLW). Lands located at and below such elevation are public lands which form part of the bed of said lake (Section 14, R.A. 4850, as amended

6.

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5.1.3.That on the strength of the oppositor’s finding and applying the above-quoted provision of law, herein applicant’s application for registration of the subject land has no leg to stand on, both in fact and in law 5.1.4.That unless the Honorable Court renders judgment to declare the land as part of the Laguna Lake or that of the public domain, the applicant will continue to unlawfully posses, occupy and claim the land as their own to the damage and prejudice of the Government in general and the Laguna Lake Development Authority in particular; 5.1.5.That unless the Honorable Court renders judgment to declare the land as part of the Laguna Lake or that of the public domain, the applicant will continue to unlawfully posses, occupy and claim the land as their own to the damage and prejudice of the Government in general and the Laguna Lake Development Authority in particular; During the initial hearing on February 18, 1999, Tensuan marked in evidence the exhibits proving her compliance with the jurisdictional requirements for LRC Case No. 172. 6.1. There being no private oppositor, a general default against the whole world, except the government, was declared TO PROVE POSSESSION, RESPONDENT PRESENTED THE FOLLOWING 7.1. ARUELO 7.1.1.Tensuan and her predecessors-in-interest have been in possession of the subject property even before the Second World War 7.1.2.The subject property was originally owned by Candida de Borja, who passed on the same to her only child, Socorro Reyes, and the latter’s husband, Felix Capco (spouses Capco). 7.1.3.The subject property became part of the spouses Capco’s conjugal property. 7.1.4.Aruelo and Tensuan are among the spouses Capco’s children. 7.1.5.During the settlement of Felix Capco’s estate, the subject property was adjudicated to Tensuan, as evidenced by the Kasulatan ng Paghahati at Pag-aayos ng Kabuhayan 14 SEPT 1971 7.2. MARASIGAN 7.2.1.He had been cultivating the subject property for the last 15 years, and he personally knew Tensuan to be the owner of said property 7.2.2.Marasigan’s father was the caretaker of the subject property for the Capcos for more than 50 years, and Marasigan used to help his father till the same. 7.2.3.Marasigan merely inherited the job as caretaker of the subject property from his father. 7.3. OTHER EVIDENCES PRESENTED 7.3.1.The Kasulatan ng Paghahati-hati at Pagaayos ng Kabuhayan dated September 14, 1971 7.3.2.Tax declarations, the earliest of which was for the year 1948, in the name of Candida de Borja, Tensuan’s grandmother; 7.3.3.Real property tax payment receipts issued to Tensuan for 1998 7.3.4.Blueprint copy of Plan Swo-00-001456 surveyed for Lydia Capco de Tensuan 7.3.5.Technical description of the subject property, duly prepared by a licensed Geodetic Engineer and approved by the Department of Environment and Natural Resources (DENR) 7.3.6.Certification dated July 29, 1999 from the Community Environment and Natural Resources Office of the DENR (CENRO-DENR) which states that “said land falls within alienable and disposable land under Project No. 27-B L.C. Map No. 2623 under Forestry Administrative Order No. 4-1141 dated January 3, 1968 WITNESS FOR LLDA 8.1. ENGR. RAMON MAGALONA 8.1.1.Based on the topographic map and technical description of the subject property, the said property is located below the prescribed lake elevation of 12.5 meters. 8.1.1.1. Hence, the subject property forms part of the Laguna Lake bed and, as such, is public land. During cross-examination, Magalona admitted that the topographic map he was using as basis was made in the year 1967; that there had been changes in the contour of the lake; and that his findings would have been different if the topographic map was made at present time. 8.1.1.2. He likewise acknowledged that the subject property is an agricultural lot. 8.1.2.When Magalona conducted an ocular inspection of the subject property, said property and other properties in the area were submerged in water as the lake level was high following the recent heavy rains On May 26, 2000, an Investigation Report was prepared, under oath, by Cristeta R. Garcia (Garcia), DENR Land Investigator, stating, among other things, that the subject property was covered by a duly approved survey plan; that the subject property is within the alienable and disposable zone classified under Project No. 27-B, L.C. Map No. 2623; that the subject property is not reserved for military or naval purposes; that the subject property was not covered by a previously issued patent; that the subject

property was declared for the first time in 1948 under Tax Declaration No. 230 in the name of Candida de Borja; that the subject property is now covered by Tax Declaration No. D-013-01408 in the name of Lydia Capco de Tensuan; that the subject property is agricultural in nature; and that the subject property is free from adverse claims and conflicts. Yet, Garcia noted in the same report that the “the applicant is not x x x in the actual occupation and possession of the land” and “LLDA rep. by Atty. Joaquin G. Mendoza possesses the legal right to file opposition against the application x x x.” The Investigation Report was submitted as evidence by the Republic. 10. MeTC: GRANTED TENSUAN’S APPLICATION 11. CA: DISMISSED REPUBLIC’S APPEALS The Republic contends that Tensuan failed to present incontrovertible evidence to warrant the registration of the property in the latter’s name as owner. Aruelo’s testimony that her father possessed the land even before the Second World War and Marasigan’s claim that he and his father have been tilling the land for a total of more than 65 years are doubtful considering that the subject property is located below the reglementary lake elevation and is, thus, part of the Laguna Lake bed. Also, the CENRO Certification is not sufficient evidence to overcome the presumption that the subject property still forms part of the public domain, and is not alienable and disposable. On the other hand, Tensuan asserts that the Petition should be dismissed outright for raising questions of fact. The findings of the MeTC and the Court of Appeals that the subject property is alienable and disposable, and that Tensuan and her predecessors-in-interest had been in open, adverse, continuous, exclusive, and notorious possession of the same for the period required by law, are supported by preponderance of evidence. SUPREME COURT: THE PETITION IS MERITORIOUS NOTE: WHEN THE QUESTION REVOLVES AROUND THE SUFFICIENCY OF EVIDENCE, IT IS A QUESTION OF FACT! BUT, SURPISE, EXCEPTION TO RULE 45 REQUIREMENT NA DAPAT QUESTION OF LAW LANG. 1. Tensuan anchors her right to registration of title on Section 14(1) of Presidential Decree No. 1529, otherwise known as the Property Registration Decree 1.1. SEC. 14. Who may apply. – The following persons may file in the proper Court of First Instance an application for registration of title to land, whether personally or through their duly authorized representatives: (1) Those who by themselves or through their predecessors-in-interest have been in open, continuous, exclusive and notorious possession and occupation of alienable and disposable lands of the public domain under a bona fide claim of ownership since June 12, 1945, or earlier. 1.1.1.The aforequoted provision authorizes the registration of title acquired in accordance with Section 48(b) of Commonwealth Act No. 141, otherwise known as the Public Land Act, as amended by Presidential Decree No. 1073 1.1.1.1. SEC. 48. The following described citizens of the Philippines, occupying lands of the public domain or claiming to own any such lands or an interest therein, but whose titles have not been perfected or completed, may apply to the Court of First Instance of the province where the land is located for confirmation of their claims and the issuance of a certificate of title thereafter, under the Land Registration Act, to wit (b) Those who by themselves or through their predecessors-in-interest have been in the open, continuous, exclusive, and notorious possession and occupation of alienable and disposable lands of the public domain, under a bona fide claim of acquisition or ownership, since June 12, 1945, except when prevented by war or force majeure. These shall be conclusively presumed to have performed all the conditions essential to a Government grant and shall be entitled to a certificate of title under the provisions of this chapter. 2. The requisites for the filing of an application for registration of title under Section 14(1) of the Property Registration Decree are: 2.1. That the property in question is alienable and disposable land of the public domain; and 2.2. That the applicants by themselves or through their predecessors-in-interest have been in open, continuous, exclusive and notorious possession and occupation; and 2.3. That such possession is under a bona fide claim of ownership since June 12, 1945 or earlier 2.3.1.In Heirs of Mario Malabanan v. Republic, we affirmed our earlier ruling in Republic v. Naguit, that Section 14(1) of the Property Registration Decree merely requires the property sought to be registered as already alienable and disposable at the time the application for registration of title is filed.

3. THUS, THE COURT PROCEEDED TO FIRST DETERMINE WON IT HAS BEEN SATISFACTORILY PROVEN THAT THE SUBJECT PROPERTY WAS ALREADY ALIENABLE AND DISPOSABLE LAND OF THE PUBLIC DOMAIN AT THE TIME TENSUAN FILED HER APPLICATION FOR REGISTRATION IN 1998 3.1. Under the Regalian doctrine, all lands of the public domain belong to the State, and that the State is the source of any asserted right to ownership of land and charged with the conservation of such patrimony. 3.1.1.The same doctrine also states that all lands not otherwise appearing to be clearly within private ownership are presumed to belong to the State. 3.1.2.Consequently, the burden of proof to overcome the presumption of ownership of lands of the public domain is on the person applying for registration. 3.1.3.Unless public land is shown to have been reclassified and alienated by the State to a private person, it remains part of the inalienable public domain 3.2. DENR SECRETARY V. YAP (DEFINITION OF ALIENABLE/DISPOSABLE LAND) 3.2.1.The 1935 Constitution classified lands of the public domain into agricultural, forest or timber. 3.2.2.Meanwhile, the 1973 Constitution provided the following divisions: agricultural, industrial or commercial, residential, resettlement, mineral, timber or forest and grazing lands, and such other classes as may be provided by law, giving the government great leeway for classification. 3.2.3.Then the 1987 Constitution reverted to the 1935 Constitution classification with one addition: national parks. 3.2.3.1. Of these, only agricultural lands may be alienated 3.2.4.A positive act declaring land as alienable and disposable is required. In keeping with the presumption of State ownership, the Court has time and again emphasized that there must be a positive act of the government, such as an official proclamation, declassifying inalienable public land into disposable land for agricultural or other purposes. In fact, Section 8 of CA No. 141 limits alienable or disposable lands only to those lands which have been “officially delimited and classified.” 3.2.4.1. To prove that the land subject of an application for registration is alienable, the applicant must establish the existence of a positive act of the government such as a presidential proclamation or an executive order; an administrative action; investigation reports of Bureau of Lands investigators; and a legislative act or a statute. The applicant may also secure a certification from the government that the land claimed to have been possessed for the required number of years is alienable and disposable 3.3. As proof that the subject property is alienable and disposable, Tensuan presented a Certification dated July 29, 1999 issued by the CENRO-DENR which verified that “said land falls within alienable and disposable land under Project No. 27-B L.C. Map No. 2623 under Forestry Administrative Order No. 4-1141 dated January 3, 1968.” 3.3.1.However, we have declared unequivocally that a CENRO Certification, by itself, is insufficient proof that a parcel of land is alienable and disposable. As we held in Republic v. T.A.N. Properties, Inc: 3.3.1.1. I]t is not enough for the PENRO or CENRO to certify that a land is alienable and disposable. The applicant for land registration must prove that the DENR Secretary had approved the land classification and released the land of the public domain as alienable and disposable, and that the land subject of the application for registration falls within the approved area per verification through survey by the PENRO or CENRO. In addition, the applicant for land registration must present a copy of the original classification approved by the DENR Secretary and certified as a true copy by the legal custodian of the official records. These facts must be established to prove that the land is alienable and disposable. Respondent failed to do so because the certifications presented by respondent do not, by themselves, prove that the land is alienable and disposable. Only Torres, respondent’s Operations Manager, identified the certifications submitted by respondent. The government officials who issued the certifications were not presented before the trial court to testify on their contents. The trial court should not have accepted the contents of the certifications as proof of the facts stated therein. Even if the certifications are presumed duly issued and admissible in evidence, they have no probative value in establishing that the land is alienable and disposable. 4. Applying Section 24 of Rule 132, the record of public documents referred to in Section 19(a), when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having legal custody of the record, or by his deputy x x x. 4.1. The CENRO is not the official repository or legal custodian of the issuances of the DENR Secretary declaring public lands as alienable and disposable.

4.2. The CENRO should have attached an official publication of the DENR Secretary’s issuance declaring the land alienable and disposable. 5. The CENRO and Regional Technical Director, FMS-DENR, certifications do not fall within the class of public documents contemplated in the first sentence of Section 23 of Rule 132. 5.1. The certifications do not reflect “entries in public records made in the performance of a duty by a public officer,” such as entries made by the Civil Registrar in the books of registries, or by a ship captain in the ship’s logbook. 5.2. The certifications are not the certified copies or authenticated reproductions of original official records in the legal custody of a government office. 5.3. The certifications are not even records of public documents. 5.4. The certifications are conclusions unsupported by adequate proof, and thus have no probative value. Certainly, the certifications cannot be considered prima facie evidence of the facts stated therein. 6. The CENRO and Regional Technical Director, FMS-DENR, certifications do not prove that Lot 10705-B falls within the alienable and disposable land as proclaimed by the DENR Secretary. 6.1. Such government certifications do not, by their mere issuance, prove the facts stated therein. Such government certifications may fall under the class of documents contemplated in the second sentence of Section 23 of Rule 132. As such, the certifications are prima facie evidence of their due execution and date of issuance but they do not constitute prima facie evidence of the facts stated therein. 7. The Court has also ruled that a document or writing admitted as part of the testimony of a witness does not constitute proof of the facts stated therein. 7.1. Here, Torres, a private individual and respondent’s representative, identified the certifications but the government officials who issued the certifications did not testify on the contents of the certifications. 7.2. As such, the certifications cannot be given probative value. The contents of the certifications are hearsay because Torres was incompetent to testify on the veracity of the contents of the certifications. 7.3. Torres did not prepare the certifications, he was not an officer of CENRO or FMS-DENR, and he did not conduct any verification survey whether the land falls within the area classified by the DENR Secretary as alienable and disposable. ANCIENT DOCUMENTS HEIRS OF LACSA V. CA PADILLA, J. FACTS 1. This petition which originated with the Regional Trial Court of Guagua, Pampanga involves two (2) cases, namely: 1.1. Civil Case No. G-1190 is an action for recovery of possession with damages and preliminary injunction filed by herein petitioners, the heirs of Demetria Lacsa, against Aurelio Songco and John Doe 1.1.1.ALLEGATIONS 1.1.1.1. Petitioners are heirs of deceased Demetria Lacsa who, during her lifetime, was the owner of a certain parcel of land consisting partly of a fishpond and partly of uncultivated open space, located in Bancal, Guagua, Pampanga, evidenced by Original Certificate of Title No. RO-1038 (11725); 1.1.1.2. That the principal respondent and his predecessor-in-interest who are neither coowners of the land nor tenants thereof, thru stealth, fraud and other forms of machination, succeeded in occupying or possessing the fishpond of said parcel of land and caused the open space therein to be cleared for expanded occupancy thereof, and refused to vacate the same despite petitioners' demands on them to vacate 1.2. Civil Case No. G-1332 is an action also by herein petitioners against private respondents before the same lower court for cancellation of title, ownership with damages and preliminary injunction, 1.2.1.ALLEGATIONS 1.2.1.1. They are the heirs of Demetria Lacsa who was the owner of the land also involved in Civil Case No. G-1190; 1.2.1.2. That the herein private respondents and their predecessors-in-interest, thru stealth, fraud and other forms of machination, succeeded in occupying or possessing the fishpond of the said parcel of land, and later abandoned the same but only after the

case was filed and after all the fish were transferred to the adjoining fishpond owned by the private respondents; 1.2.1.3. That on 31 October 1923 and 15 March 1924, by presenting to the Register of Deeds of Pampanga certain forged and absolutely simulated documents, namely: "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE PARTICION EXTRAJUDICIAL" and "ESCRITURA DE VENTA ABSOLUTA", respectively, and by means of false pretenses and misrepresentation, Inocencio Songco, the private respondents' predecessor-in-interest, succeeded in transferring the title to said property in his name, to the damage and prejudice of the petitioners; and that a preliminary injunction was necessary to prevent the private respondents from disposing of said property 2. PRIVATE RESPONDENTS’ ANSWER 2.1. Denied the material allegations of both complaints and alleged as special and affirmative defenses 2.1.1.Petitioners’ lack of cause of action, for the reason that Original Certificate of Title No. RO-1038 (11725) was merely a reconstituted copy issued in April 1983 upon petitioners’ expedient claim that the owner’s duplicate copy thereof had been missing when the truth of the matter was that OCT No. RO-1038 (11725) in the name of Demetria Lacsa, had long been cancelled and superseded by TCT No. 794 in the name of Alberta Guevarra and Juan Limpin by virtue of the document entitled "TRADUCCION AL CASTELLANO DE LA ESCRITURA DE PARTICION EXTRAJUDICIAL" entered into by the heirs of Demetria Lacsa; that the latter TCT was in turn superseded by TCT No. 929 issued in the name of Inocencio Songco (father of private respondents) by virtue of a document entitled "ESCRITURA DE VENTA ABSOLUTA" executed by spouses Juan Limpin and Alberta Guevarra in favor of said Inocencio Songco 2.1.2.BASICALLY: LACSA TRADUCCION TRANSFERRED TO GUEVARRA AND LIMPIN ESCRITURA INOCENCIO SONGCO 2.2. ALSO INTERPOSED A COUNTERCLAIM 2.2.1.BASUS 2.2.1.1. Petitioners headed by Carlito Magpayo, by force and intimidation, took possession of a portion of the fishpond in the land and occupied a hut therein; that at that time, private respondents had 3,000 bangus fingerlings left in the fishpond which upon petitioners’ harvest thereof left private respondents deprived and damaged in the amount of P50,000.00 more or less; that such illegal occupancy caused private respondents to suffer unrealized income and profits, sleepless nights, wounded feelings and serious anxiety which entitled them to actual, moral and exemplary damages as well as attorney's fees and P500.00 appearance fee for every hearing 3. IMPORTANT CLAUSES IN THEIR STIPULATION OF FACTS: 3.1. NUMBER 4. That the evidences of both parties in Civil Case No. G-1190 and in the above-entitled case are practically and literally the same 4. FACTS FOUND BY THE TRIAL COURT 4.1. The fishpond in question was originally owned by Demetria Lacsa under Original Certificate of Title No. 11725. 4.2. After Demetria Lacsa died, her two daughters Alberta Guevarra and Ambrocia Guevarra with their respective husbands Juan Limpin and Damaso Cabais entered into an extrajudicial partition of the properties left by Demetria Lacsa under the document "Traduccion Al Castellano de la Escritura de Particion Extrajudicial" dated April 7, 1923 (Exhibits "3", "3-A" and "3-B") wherein the fishpond in question was adjudicated to Alberta Guevarra and which deed was duly registered in the Office of the Registry of Deeds of Pampanga as evidenced by the certification of the Deputy Register of Deeds marked as Exhibit ‘3-C’. 4.3. Aside from the ‘Traduccion Al Castellano de la Escritura de Particion Extrajudicial’ written in the Spanish language, the spouses Alberta Guevarra and Juan Limpin and the spouses Ambrosia Guevarra and Damaso Cabais executed on April 7, 1923, another deed of partition in the Pampango dialect marked as Exhibit ‘3-D’ wherein the fishpond in question was adjudicated to Alberta Guevarra. 4.4. As a consequence, Original Certificate of Title No. 794 (Exhibit ‘4’) was issued to spouses Alberta Guevarra and Juan Limpin. 4.5. On January 20, 1924, the spouses Juan Limpin and Alberta Guevarra sold the fishpond in question to Inocencio Songco under the deed entitled ‘Escritura de Venta Absolute’ (Exhibits ‘7’ and '7-A') which was duly registered in the Office of the Registry of Deeds of Pampanga as evidenced by the certification of the Deputy Register of Deeds marked Exhibit ‘7-B’. 4.6. As a result of the sale, Transfer Certificate of Title No. 794 (Exhibit ‘4’) in the name of the spouses Alberta Guevarra and Juan Limpin was cancelled by the Office of the Registry of Deeds of Pampanga and Transfer Certificate of Title No. 929 was issued to Inocencio Songco

5. TRIAL COURT: the fishpond in question belongs to the private respondents, having been inherited by them from their deceased father Inocencio Songco 6. COURT OF APPEALS: affirmed with modification Petitioners contend that the Court of Appeals wrongfully applied the "ancient document rule" provided in Sec. 21, Rule 132 of the Rules of Court. It is submitted by petitioners that under this rule, for a document to be classified as an "ancient document", it must not only be at least thirty (30) years old but it must also be found in the proper custody and is unblemished by alterations and is otherwise free from suspicion. Thus, according to petitioners, exhibits "3" and "7", entitled "Traduccion Al Castellano de la Escritura de Particion Extrajudicial" and "Escritura de Venta Absoluta", respectively, cannot qualify under the foregoing rule, for the reason that since the "first pages" of said documents do not bear the signatures of the alleged parties thereto, this constitutes an indelible blemish that can beget unlimited alterations SUPREME COURT: PETITION IS UNMERITORIOUS. 1. Under the "ancient document rule", for a private ancient document to be exempt from proof of due execution and authenticity, it is not enough that it be more than thirty (30) years old; it is also necessary that the following requirements are fulfilled: (1) that it is produced from a custody in which it would naturally be found if genuine; and (2) that it is unblemished by any alteration or circumstances of suspicion 2. The first document, Exhibit "3", entitled "Traduccion Al Castellano de la Escritura de Particion Extrajudicial" was executed on 7 April 1923 whereas the second document, exhibit "7", entitled "Escritura de Venta Absoluta” was executed on 20 January 1924 2.1. These documents are, therefore, more than thirty (30) years old. 2.2. Both copies of the aforementioned documents were certified as exact copies of the original on file with the Office of the Register of Deeds of Pampanga, by the Deputy Register of Deeds. 2.3. There is a further certification with regard to the Pampango translation of the document of extrajudicial partition which was issued by the Archives division, Bureau of Records Management of the Department of General Services 2.3.1.Documents which affect real property, in order that they may bind third parties, must be recorded with the appropriate Register of Deeds. 2.3.2.The documents in question, being certified as copies of originals on file with the Register of Deeds of Pampanga, can be said to be found in the proper custody. 2.3.3.Clearly, therefore, the first two (2) requirements of the "ancient document rule" were met. 3. As to the last requirement that the document must on its face appear to be genuine, petitioners did not present any conclusive evidence to support their allegation of falsification of the said documents. 3.1. They merely alluded to the fact that the lack of signatures on the first two (2) pages could have easily led to their substitution. 3.2. We cannot uphold this surmise absent any proof whatsoever. 3.3. As held in one case, a contract apparently honest and lawful on its face must be treated as such and one who assails the genuineness of such contract must present conclusive evidence of falsification 4. Moreover, the last requirement of the "ancient document rule" that a document must be unblemished by any alteration or circumstances of suspicion refers to the extrinsic quality of the document itself. 4.1. The lack of signatures on the first pages, therefore, absent any alterations or circumstances of suspicion cannot be held to detract from the fact that the documents in question, which were certified as copies of the originals on file with the Register of Deeds of Pampanga, are genuine and free from any blemish or circumstances of suspicion. 5. The documents in question are "ancient documents" as envisioned in Sec. 22 of Rule 132 of the Rules of Court. Further proof of their due execution and authenticity is no longer required. Having held that the documents in question are private writings which are more than thirty (30) years old, come from the proper repository thereof, and are unblemished by any alteration or circumstances of suspicion, there is no further need for these documents to fulfill the requirements of the 1903 Notarial Law. Hence, the other contentions of the petitioners that the documents do not fulfill the mandatory requirements of the Notarial Law and that the proper person or public official was not presented to testify on his certification of the documents in question, need not be resolved as they would no longer serve any purpose. NOTARIAL DOCUMENTS

OFFICIAL LANGUAGE DORONIO V. DORONIO REYES, RT, J. FACTS 1. Spouses Simeon Doronio and Cornelia Gante, now both deceased, were the registered owners of a parcel of land 2. The spouses had children but the records fail to disclose their number. 2.1. It is clear, however, that Marcelino Doronio and Fortunato Doronio, now both deceased, were among them and that the parties in this case are their heirs. 2.2. Petitioners are the heirs of Marcelino Doronio, 2.3. While respondents are the heirs of Fortunato Doronio. 3. On April 24, 1919, a private deed of donation propter nuptias was executed by spouses Simeon Doronio and Cornelia Gante in favor of Marcelino Doronio and the latter's wife, Veronica Pico. 3.1. One of the properties subject of said deed of donation is AN UNMEASURED PARCEL OF LAND VALUED AT 200 PESOS WHOSE BOUNDARIES ARE DESCRIBED AS FOLLOWS: 3.1.1.North by Gabriel Bernardino; on the east by Fortunato Doronio; on the south by Geminiano Mendoza and on the west by a road to Villasis. 3.1.2.Constructed on said land is a house of light materials – also a part of the dowry 4. It appears that the property described in the deed of donation is the one covered by OCT No. 352. 4.1. However, there is a significant discrepancy with respect to the identity of the owner of adjacent property at the eastern side. 4.2. Based on OCT No. 352, the adjacent owners are Zacarias Najorda and Alejandro Najorda, whereas based on the deed of donation, the owner of the adjacent property is Fortunato Doronio. 4.3. Furthermore, said deed of donation remained a private document as it was never notarized 5. Both parties have been occupying the subject land for several decades although they have different theories regarding its present ownership. 5.1. According to petitioners, they are now the owners of the entire property in view of the private deed of donation propter nuptias in favor of their predecessors, Marcelino Doronio and Veronica Pico. 5.2. Respondents, on the other hand, claim that only half of the property was actually incorporated in the said deed of donation because it stated that Fortunato Doronio, instead of Zacarias Najorda and Alejandro Najorda, is the owner of the adjacent property at the eastern side. 5.2.1.Respondents posit that the donors respected and segregated the possession of Fortunato Doronio of the eastern half of the land. 5.2.2.They are the ones who have been possessing said land occupied by their predecessor, Fortunato Doronio. 6. Eager to obtain the entire property, the heirs of Marcelino Doronio and Veronica Pico filed, on January 11, 1993, before the RTC in Urdaneta, Pangasinan a petition "For the Registration of a Private Deed of Donation" 7. No respondents were named in the said petition although notices of hearing were posted on the bulletin boards of Barangay Cabalitaan, Municipalities of Asingan and Lingayen 8. During the hearings, no one interposed an objection to the petition. 9. After the RTC ordered a general default, the petition was eventually granted on September 22, 1993. 10. This led to the registration of the deed of donation, cancellation of OCT No. 352 and issuance of a new Transfer Certificate of Title (TCT) No. 44481 in the names of Marcelino Doronio and Veronica Pico. 11. Thus, the entire property was titled in the names of petitioners' predecessors. 12. On April 28, 1994, the heirs of Fortunato Doronio filed a pleading before the RTC in the form of a petition in the same Petition Case No. U-920. 12.1. The petition was for the reconsideration of the decision of the RTC that ordered the registration of the subject deed of donation. 12.2. It was prayed in the petition that an order be issued declaring null and void the registration of the private deed of donation and that TCT No. 44481 be cancelled. 12.3. However, the petition was dismissed on May 13, 1994 on the ground that the decision in Petition Case No. U-920 had already become final as it was not appealed. 13. Determined to remain in their possessed property, respondent heirs of Fortunato Doronio (as plaintiffs) filed an action for reconveyance and damages with prayer for preliminary injunction against petitioner heirs of Marcelino Doronio 13.1. Respondents contended, among others, that the subject land is different from what was donated as the descriptions of the property under OCT No. 352 and under the private deed of donation were different.

13.2. They posited that spouses Simeon Doronio and Cornelia Gante intended to donate only onehalf of the property. 14. REGIONAL TRIAL COURT: RULED IN FAVOR OF PETITIONERS 14.1. It concluded that the parties admitted the identity of the land which they all occupy; 14.1.1. That a title once registered under the torrens system cannot be defeated by adverse, open and notorious possession or by prescription; 14.1.2. That the deed of donation in consideration of the marriage of the parents of petitioners is valid, hence, it led to the eventual issuance of TCT No. 44481 in the names of said parents; and 14.1.3. That respondent heirs of Fortunato Doronio (plaintiffs) are not entitled to damages as they are not the rightful owners of the portion of the property they are claiming 15. COURT OF APPEALS: REVERSED THE REGIONAL TRIAL COURT’S DECISION 15.1. The intention to donate half of the disputed property to appellees' predecessors can be gleaned from the disparity of technical descriptions appearing in the title (OCT No. 352) of spouses Simeon Doronio and Cornelia Gante and in the deed of donation propter nuptias executed on April 24, 1919 in favor of appellees' predecessors 15.1.1. OCT NO. 352: Un terreno (Lote 1018), situada en el municipio de Asingan, Linda por el NE; con propriedad de Gabriel Bernardino; con el SE con propriedad de Zacarias Najorda y Alejandro Najorda; por el SO con propriedad de Geminiano Mendoza y por el NO con el camino para Villasis; midiendo una extension superficial mil ciento cincuenta y dos metros cuadrados 15.1.2. DONATION PROPTER NUPTIAS: Fourth – A piece of residential land located in the barrio of Cabalitian but we did not measure it, the area is bounded on the north by Gabriel Bernardino; on the east by Fortunato Doronio; on the south by Geminiano Mendoza and on the west by a road to Villasis. Constructed on said land is a house of light materials – also a part of the dowry. Value ...200.00 15.2. Taking note "that the boundaries of the lot donated to Marcelino Doronio and Veronica Pico differ from the boundaries of the land owned by spouses Simeon Doronio and Cornelia Gante," the CA concluded that spouses Simeon Doronio and Cornelia Gante donated only half of the property covered by OCT No. 352 15.3. Regarding the allegation of petitioners that OCT No. 352 is inadmissible in evidence, the CA pointed out that, "while the OCT is written in the Spanish language, this document already forms part of the records of this case for failure of appellees to interpose a timely objection when it was offered as evidence in the proceedings a quo. It is a well-settled rule that any objection to the admissibility of such evidence not raised will be considered waived and said evidence will have to form part of the records of the case as competent and admitted evidence." 15.4. The CA likewise ruled that the donation of the entire property in favor of petitioners' predecessors is invalid on the ground that it impairs the legitime of respondents' predecessor, Fortunato Doronio SUPREME COURT 1. OCT 352 IN SPANISH ALTHOUGH NOT TRANSLATED INTO ENGLISH OR FILIPINO IS ADMISSIBLE FOR LACK OF TIMELY OBJECTION 1.1. The requirement that documents written in an unofficial language must be accompanied with a translation in English or Filipino as a prerequisite for its admission in evidence must be insisted upon by the parties at the trial to enable the court, where a translation has been impugned as incorrect, to decide the issue 1.2. Where such document, not so accompanied with a translation in English or Filipino, is offered in evidence and not objected to, either by the parties or the court, it must be presumed that the language in which the document is written is understood by all, and the document is admissible in evidence 1.3. Moreover, Section 36, Rule 132 of the Revised Rules of Evidence provides: SECTION 36. Objection. – Objection to evidence offered orally must be made immediately after the offer is made. Objection to a question propounded in the course of the oral examination of a witness shall be made as soon as the grounds therefor shall become reasonably apparent. An offer of evidence in writing shall be objected to within three (3) days after notice of the offer unless a different period is allowed by the court. In any case, the grounds for the objections must be specified.

1.4. Since petitioners did not object to the offer of said documentary evidence on time, it is now too late in the day for them to question its admissibility. 1.4.1.The rule is that evidence not objected may be deemed admitted and may be validly considered by the court in arriving at its judgment 1.4.2.This is true even if by its nature, the evidence is inadmissible and would have surely been rejected if it had been challenged at the proper time 1.5. As a matter of fact, instead of objecting, petitioners admitted the contents of Exhibit "A," that is, OCT No. 352 in their comment on respondents' formal offer of documentary evidence. 1.5.1.In the said comment, petitioners alleged, among others, that "Exhibits A, B, C, D, E, F and G, are admitted but not for the purpose they are offered because these exhibits being public and official documents are the best evidence of that they contain and not for what a party would like it to prove." Said evidence was admitted by the RTC. Once admitted without objection, even though not admissible under an objection, We are not inclined now to reject it. Consequently, the evidence that was not objected to became property of the case, and all parties to the case are considered amenable to any favorable or unfavorable effects resulting from the said evidence 2. ISSUES ON IMPAIRMENT OF LEGITIME SHOULD BE THRESHED OUT IN A SPECIAL PROCEEDING, NOT IN CIVIL ACTION FOR RECONVEYANCE AND DAMAGES 2.1. On the other hand, petitioners are correct in alleging that the issue regarding the impairment of legitime of Fortunato Doronio must be resolved in an action for the settlement of estates of spouses Simeon Doronio and Cornelia Gante. It may not be passed upon in an action for reconveyance and damages. A probate court, in the exercise of its limited jurisdiction, is the best forum to ventilate and adjudge the issue of impairment of legitime as well as other related matters involving the settlement of estate 2.2. An action is a formal demand of one's right in a court of justice in the manner prescribed by the court or by the law. It is the method of applying legal remedies according to definite established rules. The term "special proceeding" may be defined as an application or proceeding to establish the status or right of a party, or a particular fact. Usually, in special proceedings, no formal pleadings are required unless the statute expressly so provides. In special proceedings, the remedy is granted generally upon an application or motion. 2.2.1.Applying these principles, an action for reconveyance and annulment of title with damages is a civil action, whereas matters relating to settlement of the estate of a deceased person such as advancement of property made by the decedent, partake of the nature of a special proceeding, which concomitantly requires the application of specific rules as provided for in the Rules of Court. 3. DECLARATION OF VALIDITY OF DONATION CAN BE CHALLENGED BY AN INTERESTED PARTY NOT IMPLEADED IN PETITION FOR QUIETING OF TITLE OR DECLARATORY RELIEF OR WHERE THERE IS NO RES JUDICATA. MOREOVER, THIS COURT CAN CONSIDER A FACTUAL MATTER OR UNASSIGNED ERROR IN THE INTEREST OF SUBSTANTIAL JUSTICE.

NOTES [DECEMBER 2, 2017]  Magkakaiba ang presentation, marking, and offer  VAA: most of these rules are waivable  Nedlloyd v. Glow Laks  VAA: Applicable ba .24, kasi .24 only applies to PH Official Records (consularization) pwede but for proving lang, the question of probative value is different; we cannot give equal credit and weight to foreign official records kasi the law governing them is beyond our jurisdiction  VDA. DE CATALAN V. LEE  