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x - - - - - - - - - - - - - - - - - - - - - - -x
RESOLUTION
REYES, R.T., J.:
Under consideration is the Manifestation and Motion1 dated October 26,
2007 of the Office of the Solicitor General (OSG) which states:
On November 13, 2007, the Court noted the OSGs manifestation and
motion and required petitioners in G.R. Nos. 178830, 179317, and
179613 to comment.
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preparatory to the execution thereof, is contrary to the
Constitution, to law and to public policy;
4. Compel public respondent to forthwith comply with pertinent
provisions of law regarding procurement of government
infrastructure projects, including public bidding for said contract
to undertake the construction of the national broadband
network.13 (Emphasis supplied)
On September 11, 2007, the Court issued a TRO14 in G.R. No. 178830,
enjoining the parties from "pursuing, entering into indebtedness,
disbursing funds, and implementing the ZTE-DOTC Broadband Deal and
Project" as prayed for. Pertinent parts of the said Order read:
WHEREAS, the Supreme Court, on 11 September 2007,
adopted a resolution in the above-entitled case, to wit:
"G.R. No. 178830 (Rolex Suplico vs. National Economic
and Development Authority, represented by NEDA
Secretary Romulo L. Neri, and the NEDA Investment
Coordination Committee, Department of Transportation
and Communications (DOTC), represented by DOTC
Secretary Leandro Mendoza, including the Commission
on Information and Communications Technology, headed
by its Chairman, Ramon P. Sales, The
Telecommunications Office, Bids and Awards for
Information and Communications Technology Committee
(ICT), headed by DOTC Assistant Secretary Elmer A.
Soneja as Chairman, and The Technical Working Group
for ICT, and DOTC Assistant Secretary Lorenzo Formoso,
and All Other Operating Units of the DOTC for
Information and Communications Technology, and ZTE
Corporation, Amsterdam Holdings, Inc., and ARESCOM,
Inc.Acting on the instant petition with prayer for
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for Information and Communications Technology, (vi)
ZTE Corporation; (vii) Amsterdam Holdings, Inc., and
(viii) ARESCOM, Inc., and any and all persons acting on
their behalf are hereby ENJOINED from "pursuing,
entering into indebtedness, disbursing funds, and
implementing the ZTE-DOTC Broadband Deal and
Project" as prayed for.15 (Emphasis supplied.)
Petitioners in G.R. Nos. 178830 and 179613 pray that they be furnished
certified true copies of the "contract or agreement covering the NBN
project as agreed upon with ZTE Corporation." It appears that during
one of the Senate hearings on the NBN project, copies of the supply
contract16 were readily made available to petitioners.17 Evidently, the
said prayer has been complied with and is, thus, mooted.
When President Gloria Macapagal-Arroyo, acting in her official capacity
during the meeting held on October 2, 2007 in China, informed Chinas
President Hu Jintao that the Philippine Government had decided not to
continue with the ZTE-National Broadband Network (ZTE-NBN) Project
due to several reasons and constraints, there is no doubt that all the
other principal prayers in the three petitions (to annul, set aside, and
enjoin the implementation of the ZTE-NBN Project) had also become
moot.
Contrary to petitioners contentions that these declarations made by
officials belonging to the executive branch on the Philippine
Governments decision not to continue with the ZTE-NBN Project are
self-serving, hence, inadmissible, the Court has no alternative but to take
judicial notice of this official act of the President of the Philippines.
Section 1, Rule 129 of the Rules of Court provides:
SECTION 1. Judicial Notice, when mandatory. A court shall take judicial
notice, without introduction of evidence, of the existence and territorial
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Resolution dated 29 January 1999, which set aside the TRO issued by the
appellate court.
Equally applicable to the present case is the Court ruling in the abovecited Republic Telecommunications. There We held, thus:
While there were occasions when the Court passed upon issues although
supervening events had rendered those petitions moot and academic,
the instant case does not fall under the exceptional cases. In those cases,
the Court was persuaded to resolve moot and academic issues to
formulate guiding and controlling constitutional principles, precepts,
doctrines or rules for future guidance of both bench and bar.
In the case at bar, the resolution of whether a writ of preliminary
injunction may be issued to prevent the implementation of the assailed
contracts calls for an appraisal of factual considerations which are
peculiar only to the transactions and parties involved in this
controversy. Except for the determination of whether petitioners are
entitled to a writ of preliminary injunction which is now moot, the issues
raised in this petition do not call for a clarification of any constitutional
principle or the interpretation of any statutory provision.22
Secondly, even assuming that the Court will choose to disregard the
foregoing considerations and brush aside mootness, the Court cannot
completely rule on the merits of the case because the resolution of the
three petitions involves settling factual issues which definitely requires
reception of evidence. There is not an iota of doubt that this may not be
done by this Court in the first instance because, as has been stated often
enough, this Court is not a trier of facts.
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Definitely, some very specific reliefs prayed for in both G.R. Nos. 178830
and 179613 require prior determination of facts before pertinent legal
issues could be resolved and specific reliefs granted.
In G.R. No. 178830, petitioner seeks to annul and set aside the award of
the ZTE-DOTC Broadband Deal and compel public respondents to
forthwith comply with pertinent provisions of law regarding
procurement of government ICT contracts and public bidding for the
NBN contract.
In G.R. No. 179613, petitioners also pray that the Court annul and set
aside the award of the contract for the national broadband network to
respondent ZTE Corporation, upon the ground that said contract, as well
as the procedures resorted to preparatory to the execution thereof, is
contrary to the Constitution, to law and to public policy. They also ask
the Court to compel public respondent to forthwith comply with
pertinent provisions of law regarding procurement of government
infrastructure projects, including public bidding for said contract to
undertake the construction of the national broadband network.
It is simply impossible for this Court "to annul and set aside the award of
the ZTE-DOTC Broadband Deal" without any evidence to support a prior
factual finding pointing to any violation of law that could lead to such
annulment order. For sure, the Supreme Court is not the proper venue
for this factual matter to be threshed out.
Thirdly, petitioner Suplico in G.R. No. 178830 prayed that this Court
order "public respondents to forthwith comply with pertinent
provisions of law regarding procurement of government ICT contracts
and public bidding for the NBN contract."25 It would be too
presumptuous on the part of the Court to summarily compel public
respondents to comply with pertinent provisions of law regarding
procurement of government infrastructure projects without any factual
basis or prior determination of very particular violations committed by
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Footnotes
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*
On official leave per Special Order No. 508 dated June 25, 2008.
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4 Id. at 1157.
5 Id. at 1160.
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Chairman and President of the Export-Import Bank of
China, Peoples Republic of China nominating the NBN
Project.
9 Citing Republic v. Tan, G.R. No. 145255, March 30, 2004, 426
SCRA 485, 492-493.
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DISSENTING OPINION
CARPIO, J.:
I dissent on the ground that the ZTE Supply Contract is void from the
beginning for being contrary to the Constitution, the Administrative
Code of 1987, the Government Auditing Code of the Philippines, and the
Government Procurement Reform Act. As such, the ZTE Supply Contract
is legally non-existent. The Philippine Governments decision "not to
continue with the ZTE National Broadband Network Project"1 during
the pendency of this case, even if deemed a cancellation of the ZTE
Supply Contract, had no legal effect on the status of the contract, and did
not moot this petition.
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The simple answer to each question is yes, the ZTE Supply Contract is
void from the beginning. The absence of any of the three - an
appropriation law, a certificate of appropriation and fund availability,
and public bidding - renders the ZTE Supply Contract void from the
beginning.
Absence of an Appropriation Law
The Constitution requires an appropriation law before public funds are
spent for any purpose. Section 29(2), Article VI of the Constitution
provides:
No money shall be paid out of the Treasury except in pursuance of an
appropriation made by law.13
The power of the purse or the power of Congress to authorize payment
from funds in the National Treasury is lodged exclusively in Congress.
One of the fundamental checks and balances finely crafted in the
Constitution is that Congress authorizes the amount to be spent, while
the Executive spends the amount so authorized. The Executive cannot
authorize its own spending, and neither can Congress spend what it has
authorized. The rationale of this basic check and balance is to prevent
abuse of discretion in the expenditure of public funds.
Thus, the Executive branch cannot spend a single centavo of government
receipts, whether from taxes, sales, donations, dividends, profits, loans,
or from any other source, unless there is an appropriation law
authorizing the expenditure. Any government expenditure without the
corresponding appropriation from Congress is unconstitutional. There is
no exception to this constitutional prohibition that "no money shall be
paid out of the Treasury except in pursuance of an appropriation made
by law." This constitutional prohibition is self-executory.
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the proposed contract for the current fiscal year is available for
expenditure." The law prohibits not only the entering into the contract,
but also authorizing the entering into the contract without the
certification from the proper accounting official. This means that the
certificate of appropriation and fund availability must be issued before
the signing of the contract.
In addition, the Administrative Code of 1987 and the Government
Auditing Code expressly require that the "certificate signed by the
proper accounting official and the auditor who verified it, shall be
attached to and become an integral part of the proposed contract." The
certificate of appropriation and fund availability must be attached to the
"proposed contract," again clearly showing that the certificate must be
issued before the signing of the contract.
In several cases, the Court had the occasion to apply these provisions of
the Administrative Code of 1987 and the Government Auditing Code of
the Philippines. In these cases, the Court clearly ruled that the two
requirements the existence of appropriation and the attachment of the
certification are "conditions sine qua non for the execution of
government contracts." In COMELEC v. Quijano-Padilla,17 the Court
ruled:
It is quite evident from the tenor of the language of the law that the
existence of appropriations and the availability of funds are
indispensable pre-requisites to or conditions sine qua non for the
execution of government contracts. The obvious intent is to impose such
conditions as a priori requisites to the validity of the proposed contract.
Using this as our premise, we cannot accede to PHOTOKINA's contention
that there is already a perfected contract. x x x
xxx
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xxx
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Supreme Court affirmed the appellate courts decision but on nonconstitutional grounds.
Clearly, an executive agreement must comply with well-established state
policies, and these state policies are laid down in statutes. The
Government Procurement Reform Act has laid down a categorical state
policy "All procurement shall be done through Competitive Bidding,"
subject only to narrowly defined exceptions that respondents do not
invoke here. Consequently, the executive agreement between China and
the Philippines cannot exempt the ZTE Supply Contract from the state
policy of public bidding.
Private respondent ZTE Corporation further claims that the ZTE Supply
Contract is part of the executive agreement between China and the
Philippines. This is plain error. An executive agreement is an agreement
between governments. The Executive branch has defined an
"international agreement," which includes an executive agreement, to
refer to a contract or an understanding "entered into between the
Philippines and another government."32
That the Chinese Government handpicked the ZTE Corporation to supply
the goods and services to the Philippine Government does not make the
ZTE Supply Contract an executive agreement. ZTE Corporation is not a
government or even a government agency performing governmental or
developmental functions like the Export-Import Bank of China or the
Japan Bank for International Cooperation,33 or a multilateral lending
agency organized by governments like the World Bank.34 ZTE
Corporation is a business enterprise performing purely commercial
functions. ZTE Corporation is publicly listed in the Hong Kong and
Shenzhen stock exchanges, with individual and juridical stockholders
that receive dividends from the corporation.
Moreover, an executive agreement is governed by international law.35
However, the ZTE Supply Contract expressly provides that it shall be
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x x x.
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Footnotes
1 Rollo, p. 1093. Public respondents Manifestation and Motion
dated 26 October 2007.
2 Rufino v. Endriga, G.R. No. 139554, 21 July 2006, 496 SCRA 13;
Manalo v. Calderon, G.R. No. 178920, 15 October 2007, 536 SCRA
290.
3 Private respondent ZTE Corporations Comment, p. 8.
4 Section 2, Rule 65 of the Rules of Court.
5 Rollo, pp. 348-349. In their Consolidated Comment, pubic
respondents attached as Annex "LL" a copy of the ZTE Supply
Contract. Public respondents explained, "On April 21, 2007,
Mendoza and ZTE Corporation Vice President Yu Yong signed a
US$329 million supply contract for the NBN Project at the VIP
room of the Haikou Meilan International Airport of the Peoples
Republic of China."
6 The fourth whereas clause of the ZTE Supply Contract (Annex
"LL") states: "an Executive Agreement was entered into between
the Republic of the Philippines and the Peoples Republic of
China where the latter agreed to finance the National Broadband
Network Project through a Loan Agreement with Export-Import
Page 24 of 121
Bank of China subject to the condition that the Equipment and
Services to be procured from the proceeds of the loan come from
ZTE Corporation." (Id. at 539) Public respondents also attached
to their Consolidated Comment the 2 December 2006 letter
(Annex "N") of Chinese Ambassador Li Jinjun to Presidential
Chief of Staff Michael T. Defensor, stating: "It may interest Your
Honorable to know that ZTE Corporation, a reputable and
established telecommunications company in China, responded to
this worthwhile undertaking and, consequently, the Peoples
Republic of China through the Chinese Ministry of Commerce
designated it as the NBN projects prime contractor." (Id. at 472)
7 Id. at 369, fourth whereas clause of the ZTE Supply Contract. In
their Consolidated Comment, public respondents stated, "Among
the above-enumerated requisites (including the conclusion of the
loan agreement), only the issuance of a legal opinion from the
DOJ had been complied with."
8 Id. at 431. In their Consolidated Comment, public respondents
stated: "At the outset, there is no need yet for a budget allocation
as the loan agreement has yet to be concluded."
9 Id.
10 Supra, note 5. Annex "LL," which is a copy of the ZTE Supply
Contract, does not have as attachment the certificate of
appropriation and fund availability.
11 Rollo, p. 339. Consolidated Comment of public respondents,
footnote 14.
12 Republic Act No. 9336 (2005 reenacted for 2006) and
Republic Act No. 9401, respectively.
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the expenditure of public funds by any
government agency shall be entered into or
authorized unless the proper accounting official
of the agency concerned shall have certified to
the officer entering into the obligation that funds
have been duly appropriated for the purpose and
that the amount necessary to cover the proposed
contract for the current fiscal year is available for
expenditure on account thereof, subject to
verification by the auditor concerned. The
certificate signed by the proper accounting
official and the auditor who verified it, shall be
attached to and become an integral part of the
proposed contract, and the sum so certified shall
not thereafter be available for expenditure for
any other purpose until the obligation of the
government agency concerned under the contract
is fully extinguished.
SECTION 87. Void Contract and Liability of
Officer. Any contract entered into contrary to
the requirements of the two immediately
preceding sections shall be void, and the officer
or officers entering into the contract shall be
liable to the government or other contracting
party for any consequent damage to the same
extent as if the transaction had been wholly
between private parties.
15 Rollo, pp. 572-573. The ZTE Supply Contract (Annex "LL" of
public respondents Consolidated Comment), on the paragraph
Conditions for the Effectivity of the Contract, provides:
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17 438 Phil. 72 (2002). See also Osmea v. Commission on Audit,
G.R. No. 98355, 2 March 1994, 230 SCRA 585; Agan, Jr. v. Phil.
International Air Terminals Co., Inc., 450 Phil. 744 (2003).
18 Melchor v. Commission on Audit, G.R. No. 95398, 16 August
1991, 200 SCRA 704.
19 Section 31 of Presidential Decree No. 1177 provides:
SECTION 31. Automatic Appropriations. All
expenditures for (a) personnel retirement premiums,
government service insurance, and other similar fixed
expenditures, (b) principal and interest on public debt,
(c) national government guarantees of obligations which
are drawn upon, are automatically appropriated:
provided, that no obligations shall be incurred or
payments made from funds thus automatically
appropriated except as issued in the form of regular
budgetary allotments. (Emphasis supplied)
20 Rollo, p. 431. Consolidated Comment of public respondents.
21 Guingona, Jr. v. Carague, G.R. No. 94571, 22 April 1991, 196
SCRA 221.
22 See also Section 6 of Presidential Decree No. 81, and Section 1
of Presidential Decree No. 1967.
23 Land Bank of the Philippines v. Court of Appeals, 319 Phil.
246 (1995).
24 Secretary of Justice v. Lantion, 379 Phil. 165 (2000).
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25 Commissioner of Customs v. Eastern Sea Trading, No. L14279, 31 October 1961, 3 SCRA 351, reiterated in Adolfo v.
Court of First Instance of Zambales, 145 Phil. 264 (1970).
26 Made solely by the Executive, as distinguished from
executive-legislative agreements that are embodied in ordinary
legislation.
Page 27 of 121
33 Abaya v. Ebdane, Jr., G.R. No. 167919, 14 February 2007, 515
SCRA 720.
34 DBM-Procurement Service v. Kolonwel Trading, G.R. Nos.
175608, 175616 and 175659, 8 June 2007, 524 SCRA 591.
35 Supra, note 32.
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FERNAN, C.J.:
Petitioner State Investment House seeks a review of the decision of
respondent Intermediate Appellate Court (now Court of Appeals) in ACG.R. CV No. 04523 reversing the decision of the Regional Trial Court of
Manila, Branch XXXVII dated April 30, 1984 and dismissing the
complaint for collection filed by petitioner against private respondents
Spouses Anita Pena Chua and Harris Chua.
It appears that shortly before September 5, 1980, New Sikatuna Wood
Industries, Inc. requested for a loan from private respondent Harris
Chua. The latter agreed to grant the same subject to the condition that
the former should wait until December 1980 when he would have the
money. In view of this agreement, private respondent-wife, Anita Pena
Chua issued three (3) crossed checks payable to New Sikatuna Wood
Industries, Inc. all postdated December 22, 1980 as follows:
1. China Banking
Corporation
CHECK NO.
589053
04045549
102,313.00
98,387.00
DRAWEE BANK
2. International
Corporate Bank
Page 29 of 121
DATE
Dec. 22, 1980
AMOUNT
P98,750.00
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On April 30, 1984, the lower court 1 rendered judgment against herein
private respondents spouses, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered in favor of
the plaintiff or against the defendants ordering the
defendants to pay jointly and severally to the plaintiff the
following amounts:
1. P 229,450.00 with interest at the rate of
12% per annum from February 24,1981
until fully paid;
2. P 29,945.00 as and for attorney's fees;
and
3. the costs of suit.
On the third party complaint, third party defendant New
Sikatuna Wood Industries, Inc. is ordered to pay third
party plaintiffs Anita Pena Chua and Harris Chua all
amounts said defendants' third- party plaintiffs may pay
to the plaintiff on account of this case. 2
On appeal filed by private respondents in AC-G.R. CV No. 04523, the
Intermediate Appellate Court 3 (now Court of Appeals) reversed the
lower court's judgment in the now assailed decision, the dispositive
portion of which reads:
WHEREFORE, finding this appeal meritorious, We
Reverse and Set Aside the appealed judgment, dated
April 30, 1984 and a new judgment is hereby rendered
dismissing the complaint, with costs against plaintiffappellee. 4
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payee who presented the same for payment and therefore, there was no
proper presentment, and the liability did not attach to the drawer.
Thus, in the absence of due presentment, the drawer did not become
liable. 7 Consequently, no right of recourse is available to petitioner
against the drawer of the subject checks, private respondent wife,
considering that petitioner is not the proper party authorized to make
presentment of the checks in question.
Yet it does not follow as a legal proposition that simply because
petitioner was not a holder in due course as found by the appellate court
for having taken the instruments in question with notice that the same is
for deposit only to the account of payee named in the subject checks,
petitioner could not recover on the checks. The Negotiable Instruments
Law does not provide that a holder who is not a holder in due course
may not in any case recover on the instrument for in the case at bar,
petitioner may recover from the New Sikatuna Wood Industries, Inc. if
the latter has no valid excuse for refusing payment. The only
disadvantage of a holder who is not in due course is that the negotiable
instrument is subject to defenses as if it were non-negotiable. 8
That the subject checks had been issued subject to the condition that
private respondents on due date would make the back up deposit for
said checks but which condition apparently was not made, thus resulting
in the non-consummation of the loan intended to be granted by private
respondents to New Sikatuna Wood Industries, Inc., constitutes a good
defense against petitioner who is not a holder in due course.
WHEREFORE, the decision appealed from is hereby AFFIRMED with
costs against petitioner.
SO ORDERED.
Page 32 of 121
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1.1 Duration of
Contract
Position
OILER
Hours of Work
48 HOURS/WEEK
Overtime
Point of Hire
MANILA, PHILIPPINES9
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In her 18 June 2003 Decision, the Labor Arbiter dismissed the complaint
for lack of merit. The Labor Arbiter held that:
xxx
They are found to have positive trace of alcohol or any of the banned
substances in any random testing sample.
Jose, Jr. began performing his duties on board the M/T Limar on 21
August 2002. On 8 October 2002, a random drug test was conducted on
all officers and crew members of M/T Limar at the port of Curacao. Jose,
Jr. was found positive for marijuana. Jose, Jr. was informed about the
result of his drug test and was asked if he was taking any medication.
Jose, Jr. said that he was taking Centrum vitamins.
Jose, Jr. was allowed to continue performing his duties on board the M/T
Limar from 8 October to 29 November 2002. In the Sea Going Staff
Appraisal Report11 on Jose Jr.s work performance for the period of 1
August to 28 November 2002, Jose, Jr. received a 96% total rating and
was described as very hardworking, trustworthy, and reliable.
On 29 December 2002, M/T Limar reached the next port after the
random drug test and Jose, Jr. was repatriated to the Philippines. When
Jose, Jr. arrived in the Philippines, he asked MPI that a drug test be
conducted on him. MPI ignored his request. On his own, Jose, Jr.
procured drug tests from Manila Doctors Hospital,12 S.M. Lazo Medical
Clinic, Inc.,13 and Maritime Clinic for International Services, Inc.14 He
was found negative for marijuana.
Jose, Jr. filed with the NLRC a complaint against MPI and MSSI for illegal
dismissal with claim for his salaries for the unexpired portion of the
employment contract.
The Labor Arbiters Ruling
Based from the facts and evidence, this office inclined [sic] to rule
in favor of the respondents: we find that complainants termination
from employment was valid and lawful. It is established that
complainant, after an unannounced drug test conducted by the
respondent principal on the officers and crew on board the vessel,
was found positive of marijuana, a prohibited drug. It is a
universally known fact the menace that drugs bring on the user as
well as to others who may have got on his way. It is noted too that
complainant worked on board a tanker vessel which carries toxic
materials such as fuels, gasoline and other combustible materials
which require delicate and careful handling and being an oiler,
complainant is expected to be in a proper disposition. Thus, we
agree with respondents that immediate repatriation of
complainant is warranted for the safety of the vessel as well as to
complainants co-workers on board. It is therefore a risk that
should be avoided at all cost. Moreover, under the POEA Standard
Employment Contract as cited by the respondents (supra), violation
of the drug and alcohol policy of the company carries with it the
penalty of dismissal to be effected by the master of the vessel. It is
also noted that complainant was made aware of the results of the
drug test as per Drug Test Certificate dated October 29, 2002. He
was not dismissed right there and then but it was only on December
29, 2002 that he was repatriated for cause.
As to the complainants contention that the ship doctors report can not
be relied upon in the absence of other evidence supporting the doctors
findings for the simple reason that the ship doctor is under the control of
the principal employer, the same is untenable. On the contrary, the
findings of the doctor on board should be given credence as he would
not make a false clarification. Dr. A.R.A Heath could not be said to have
outrageously contrived the results of the complainants drug test. We are
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of any of the doctors whose names were printed therein (Page 45,
Records). Verily, the veracity of this purported drug test result is
questionable, hence, it cannot be deemed as substantial proof that
Complainant violated his employers "no alcohol, no drug" policy. In
fact, in his November 14, 2002 message to Stelmar Tanker Group,
the Master of the vessel where Complainant worked, suggested that
another drug test for complainant should be taken when the vessel
arrived [sic] in Curacao next call for final findings (Page 33,
Records), which is an indication that the Master, himself, was in
doubt with the purported drug test result. Indeed there is reason
for the Master of the vessel to doubt that Complainant was taking in
the prohibited drug "marihuana." The Sea Going Staff Appraisal
Report signed by Appraiser David A. Amaro, Jr. and reviewed by the
Master of the vessel himself on complainants work performance as
Wiper from August 1, 2002 to November 28, 2002 which included a
two-month period after the purported drug test, indicates that out
of a total score of 100% on Safety Consciousness (30%), Ability
(30%), Reliability (20%) and Behavior & Attitude (20%),
Complainant was assessed a score of 96% (Pages 30-31, Records).
Truly, a worker who had been taking in prohibited drug could not
have given such an excellent job performance. Significantly, under
the category "Behavior & Attitude (20%)," referring to his personal
relationship and his interactions with the rest of the ships staff and
his attitude towards his job and how the rest of the crew regard
him, Complainant was assessed the full score of 20% (Page 31,
Records), which belies Respondents insinuation that his alleged
offense directly affected the safety of the vessel, its officers and
crew members. Indeed, if Complainant had been a threat to the
safety of the vessel, officers and crew members, he would not be
been [sic] allowed to continue working almost three (3) months
after his alleged offense until his repatriation on December 29,
2002. Clearly, Respondents failed to present substantial proof that
Complainants dismissal was with just or authorized cause.
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Page 36 of 121
The Court of Appeals Ruling
In its 11 May 2005 Decision, the Court of Appeals set aside the 19
January and 22 March 2004 Resolutions of the NLRC and reinstated the
18 June 2003 Decision of the Labor Arbiter. The Court of Appeals held
that:
The POEA standard employment contract adverted to in
the labor arbiters decision to which all seamens
contracts must adhere explicitly provides that the failure
of a seaman to obey the policy warrants a penalty of
dismissal which may be carried out by the master even
without a notice of dismissal if there is a clear and
existing danger to the safety of the vessel or the crew.
That the petitioners were implementing a no-alcohol, no
drug policy that was communicated to the respondent
when he embarked is not in question. He had signed a
document entitled Drug and Alcohol Declaration in which
he acknowledged that alcohol beverages and
unprescribed drugs such as marijuana were banned on
the vessel and that any employee found possessing or
using these substances would be subject to instant
dismissal. He undertook to comply with the policy and
abide by all the relevant rules and guidelines, including
the system of random testing that would be employed to
enforce it.
We can hardly belabor the reasons and justification for this policy. The
safety of the vessel on the high seas is a matter of supreme and
unavoidable concern to all the owners, the crew and the riding public.
In the ultimate analysis, a vessel is only as seaworthy as the men who
sail it, so that it is necessary to maintain at every moment the efficiency
and competence of the crew. Without an effective no alcohol, no drug
policy on board the ship, the vessels safety will be seriously
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Page 37 of 121
Nothing of the sort, he says, has even been suggested in this particular
case.
The regularity of the procedure observed in the administration and
reporting of the tests is the very assurance of the reports admissibility
and credibility under the laws of the evidence. We see no reason why it
cannot be considered substantial evidence, which, parenthetically, is the
lowest rung in the ladder of evidence. It is from the fact that a report or
entry is a part of the regular routine work of a business or profession
that it derives its value as legal evidence.
Then the respondent was notified of the results and allowed to explain
himself. He could not show any history of medication that could account
for the traces of drugs in his system. Despite his lack of plausible
excuses, the ship captain came out in support of him and asked his
superiors to give him another chance. These developments prove that
the respondent was afforded due process consistent with the exigencies
of his service at sea. For the NLRC to annul the process because he was
somehow not furnished with written notice is already being pedantic.
What is the importance to the respondent of the difference between a
written and verbal notice when he was actually given the opportunity to
be heard? x x x
The working environment in a seagoing vessel is sui generis which
amply justifies the difference in treatment of seamen found guilty of
serious infractions at sea. The POEA Standard Employment Contract
allows the ship master to implement a repatriation for just cause
without a notice of dismissal if this is necessary to avoid a clear and
existing danger to the vessel. The petitioners have explained that that
[sic] it is usually at the next port of call where the offending crewman is
made to disembark. In this case, a month had passed by after the date of
the medical report before they reached the next port. We may not
second-guess the judgment of the master in allowing him to remain at
his post in the meantime. It is still reasonable to believe that the proper
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Page 38 of 121
In his petition dated 13 September 2005, Jose, Jr. claims that he was
illegally dismissed from employment for two reasons: (1) there is no just
cause for his dismissal because the drug test result is unsigned by the
doctor, and (2) he was not afforded due process. He stated that:
The Issues
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opportunity to answer and rebut the charges against him prior to the
dismissal.22
The Courts Ruling
In its 11 May 2005 Decision, the Court of Appeals held that there was
just cause for Jose, Jr.s dismissal. The Court of Appeals gave credence to
the drug test result showing that Jose, Jr. was positive for marijuana. The
Court of Appeals considered the drug test result as part of entries in the
course of business. The Court of Appeals held that:
Under legal rules of evidence, not all unsigned documents or papers fail
the test of admissibility. There are kinds of evidence known as
exceptions to the hearsay rule which need not be invariably signed by
the author if it is clear that it issues from him because of necessity and
under circumstances that safeguard the trustworthiness of the paper. A
number of evidence of this sort are called entries in the course of
business, which are transactions made by persons in the regular course
of their duty or business. We agree with the labor arbiter that the drug
test result constitutes entries made in the ordinary or regular course of
duty of a responsible officer of the vessel. The tests administered to the
crew were routine measures of the vessel conducted to enforce its stated
policy, and it was a matter of course for medical reports to be issued and
released by the medical officer. The ships physician at Curacao under
whom the tests were conducted was admittedly Dr. Heath. It was under
his name and with his handwritten comments that the report on the
respondent came out, and there is no basis to suspect that these results
were issued other than in the ordinary course of his duty. As the labor
arbiter points out, the drug test report is evidence in itself and does not
require additional supporting evidence except if it appears that the drug
test was conducted not in accordance with drug testing procedures.
Nothing of the sort, he says, has even been suggested in this particular
case.23 (Emphasis supplied)
Page 39 of 121
Jose, Jr. claims that the Court of Appeals erred when it ruled that there
was just cause for his dismissal. The Court is not impressed. In a petition
for review on certiorari under Rule 45 of the Rules of Court, a mere
statement that the Court of Appeals erred is insufficient. The petition
must state the law or jurisprudence and the particular ruling of the
appellate court violative of such law or jurisprudence. In Encarnacion v.
Court of Appeals,24 the Court held that:
Petitioner asserts that there is a question of law involved in this appeal.
We do not think so. The appeal involves an appreciation of facts, i.e.,
whether the questioned decision is supported by the evidence and the
records of the case. In other words, did the Court of Appeals commit a
reversible error in considering the trouble record of the subject
telephone? Or is this within the province of the appellate court to
consider? Absent grave abuse of discretion, this Court will not reverse
the appellate courts findings of fact.
In a petition for review under Rule 45, Rules of Court, invoking the usual
reason, i.e., that the Court of Appeals has decided a question of substance
not in accord with law or with applicable decisions of the Supreme
Court, a mere statement of the ceremonial phrase is not sufficient to
confer merit on the petition. The petition must specify the law or
prevailing jurisprudence on the matter and the particular ruling of the
appellate court violative of such law or previous doctrine laid down by
the Supreme Court. (Emphasis supplied)
In the present case, Jose, Jr. did not show that the Court of Appeals
ruling is violative of any law or jurisprudence. Section 43, Rule 130, of
the Rules of Court states:
SEC. 43. Entries in the course of business. Entries made at, or near the
time of the transactions to which they refer, by a person deceased, or
unable to testify, who was in a position to know the facts therein stated,
may be received as prima facie evidence, if such person made the entries
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Factual findings of the Court of Appeals are binding on the Court. Absent
grave abuse of discretion, the Court will not disturb the Court of Appeals
factual findings.28 In Encarnacion,29 the Court held that, "unless there is
a clearly grave or whimsical abuse on its part, findings of fact of the
appellate court will not be disturbed. The Supreme Court will only
exercise its power of review in known exceptions such as gross
misappreciation of evidence or a total void of evidence." Jose, Jr. failed to
show that the Court of Appeals gravely abused its discretion.
Article 282(a) of the Labor Code states that the employer may terminate
an employment for serious misconduct. Drug use in the premises of the
employer constitutes serious misconduct. In Bughaw, Jr. v. Treasure
Island Industrial Corporation,30 the Court held that:
The charge of drug use inside the companys premises and during
working hours against petitioner constitutes serious misconduct, which
is one of the just causes for termination. Misconduct is improper or
wrong conduct. It is the transgression of some established and definite
rule of action, a forbidden act, a dereliction of duty, willful in character,
and implies wrongful intent and not merely an error in judgment. The
misconduct to be serious within the meaning of the Act must be of such a
grave and aggravated character and not merely trivial or unimportant.
Such misconduct, however serious, must nevertheless, in connection
with the work of the employee, constitute just cause for his separation.
This Court took judicial notice of scientific findings that drug abuse can
damage the mental faculties of the user. It is beyond question therefore
that any employee under the influence of drugs cannot possibly continue
doing his duties without posing a serious threat to the lives and property
of his co-workers and even his employer. (Emphasis supplied)
Jose, Jr. claims that he was not afforded due process. The Court agrees.
There are two requisites for a valid dismissal: (1) there must be just
cause, and (2) the employee must be afforded due process.31 To meet
the requirements of due process, the employer must furnish the
Page 41 of 121
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ETI then filed a petition for certiorari and mandamus, assailing the
orders of the RTC. In its comment on the petition, KAL appended a
certificate signed by Atty. Aguinaldo dated January 10, 2000, worded as
follows:
SECRETARYS/RESIDENT AGENTS CERTIFICATE
KNOW ALL MEN BY THESE PRESENTS:
I, Mario A. Aguinaldo, of legal age, Filipino, and duly elected and
appointed Corporate Secretary and Resident Agent of KOREAN
AIRLINES, a foreign corporation duly organized and existing
under and by virtue of the laws of the Republic of Korea and also
duly registered and authorized to do business in the Philippines,
with office address at Ground Floor, LPL Plaza Building, 124
Alfaro St., Salcedo Village, Makati City, HEREBY CERTIFY that
during a special meeting of the Board of Directors of the
Corporation held on June 25, 1999 at which a quorum was
present, the said Board unanimously passed, voted upon and
approved the following resolution which is now in full force and
effect, to wit:
RESOLVED, that Mario A. Aguinaldo and his law firm M.A.
Aguinaldo & Associates or any of its lawyers are hereby
appointed and authorized to take with whatever legal
action necessary to effect the collection of the unpaid
account of Expert Travel & Tours. They are hereby
specifically authorized to prosecute, litigate, defend, sign
and execute any document or paper necessary to the
filing and prosecution of said claim in Court, attend the
Pre-Trial Proceedings and enter into a compromise
agreement relative to the above-mentioned claim.
Page 44 of 121
IN WITNESS WHEREOF, I have hereunto affixed my signature
this 10th day of January, 1999, in the City of Manila, Philippines.
(Sgd.)
MARIO A. AGUINALDO
Resident Agent
SUBSCRIBED AND SWORN to before me this 10th day of January,
1999, Atty. Mario A. Aguinaldo exhibiting to me his Community
Tax Certificate No. 14914545, issued on January 7, 2000 at
Manila, Philippines.
Doc. No. 119;
Page No. 25;
Book No. XXIV
Series of 2000.
(Sgd.)
ATTY. HENRY D. ADASA
Notary Public
Until December 31, 2000
PTR #889583/MLA 1/3/20006
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Page 45 of 121
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Page 46 of 121
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In this case, the petitioner, as the defendant in the RTC, assailed the
authority of Atty. Aguinaldo to execute the requisite verification and
certificate of non-forum shopping as the resident agent and counsel of
the respondent. It was, thus, incumbent upon the respondent, as the
plaintiff, to allege and establish that Atty. Aguinaldo had such authority
to execute the requisite verification and certification for and in its behalf.
The respondent, however, failed to do so.
MARIO A. AGUINALDO
Affiant
CITY OF MANILA
SUBSCRIBED AND SWORN TO before me this 30th day of August,
1999, affiant exhibiting to me his Community Tax Certificate No.
00671047 issued on January 7, 1999 at Manila, Philippines.
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(Sgd.)ATTY. HENRY D. ADASA
Notary Public
Until December 31, 2000
PTR No. 320501 Mla.
1/4/9913
Page 48 of 121
may be served in all actions or other legal proceedings against
such corporation, and consenting that service upon such resident
agent shall be admitted and held as valid as if served upon the
duly-authorized officers of the foreign corporation as its home
office.14
Under the law, Atty. Aguinaldo was not specifically authorized to execute
a certificate of non-forum shopping as required by Section 5, Rule 7 of
the Rules of Court. This is because while a resident agent may be aware
of actions filed against his principal (a foreign corporation doing
business in the Philippines), such resident may not be aware of actions
initiated by its principal, whether in the Philippines against a domestic
corporation or private individual, or in the country where such
corporation was organized and registered, against a Philippine
registered corporation or a Filipino citizen.
The respondent knew that its counsel, Atty. Aguinaldo, as its resident
agent, was not specifically authorized to execute the said certification. It
attempted to show its compliance with the rule subsequent to the filing
of its complaint by submitting, on March 6, 2000, a resolution purporting
to have been approved by its Board of Directors during a teleconference
held on June 25, 1999, allegedly with Atty. Aguinaldo and Suk Kyoo Kim
in attendance. However, such attempt of the respondent casts veritable
doubt not only on its claim that such a teleconference was held, but also
on the approval by the Board of Directors of the resolution authorizing
Atty. Aguinaldo to execute the certificate of non-forum shopping.
In its April 12, 2000 Order, the RTC took judicial notice that because of
the onset of modern technology, persons in one location may confer with
other persons in other places, and, based on the said premise, concluded
that Suk Kyoo Kim and Atty. Aguinaldo had a teleconference with the
respondents Board of Directors in South Korea on June 25, 1999. The
CA, likewise, gave credence to the respondents claim that such a
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Page 49 of 121
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Page 50 of 121
7. Greater participant preparation time needed.
8. Informal, one-to-one, social interaction not possible.22
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Page 51 of 121
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Page 52 of 121
only on January 26, 2001 when the respondent filed its comment in the
CA that it submitted the Secretarys/Resident Agents Certificate30 dated
January 10, 2000.
Id. at 47-50.
The Court is, thus, more inclined to believe that the alleged
teleconference on June 25, 1999 never took place, and that the
resolution allegedly approved by the respondents Board of Directors
during the said teleconference was a mere concoction purposefully
foisted on the RTC, the CA and this Court, to avert the dismissal of its
complaint against the petitioner.
Rollo, p. 108.
Id. at 18.
SO ORDERED.
Puno, Acting C.J., (Chairman), Austria-Martinez, and Chico-Nazario, JJ.,
concur.
Tinga, J., out of the country.
11
13
Footnotes
Penned by Associate Justice Elvi John S. Asuncion, with
Associate Justices Romeo A. Brawner (now Presiding Justice) and
Juan Q. Enriquez, Jr., concurring; Rollo, pp. 27-30.
1
Rollo, p. 109.
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Page 53 of 121
others, Audioconferencing; and Sonneville, Teleconferencing
Enters its Growth Stage, supra.
23
Ibid.
16
17
18
19
Ibid.
25
Rollo, p. 68.
26
Id. at 86.
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27
Id. at 87.
28
29
Id. at 93.
30
Rollo, p. 108.
2. JUDICIAL NOTICE
Page 54 of 121
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Page 55 of 121
Matias stated that she and her family have introduced substantial
improvements on the subject property and have been regularly paying
realty taxes thereon. She further claimed that she is a legitimate
beneficiary of Presidential Decree (PD) No. 15178 and PD No. 2016,9
which classified the subject property as part of the Urban Land Reform
Zone (ULRZ) and an Area for Priority Development (APD).
DECISION
BRION, J.:
Petitioner B. E. San Diego, Inc. (B.E. San Diego) filed before the Court a
petition for review on certiorari1 assailing the September 25, 2002
decision2 of the Court of Appeals (CA) in CA-G.R. CV No. 50213. The CA
decision reversed the June 22, 1995 decision3 of the Regional Trial Court
(RTC) of Malabon, Branch 74, in Civil Case No. 1421-MN.4 The RTC in
turn granted the complaint for recovery of possession5 instituted by B. E.
San Diego against private respondent Jovita Matias (Matias).
THE FACTS
B.E. San Diego alleged that it is the registered owner of a parcel of land
(subject property) located in Hernandez Street, Catmon, Malabon,
covered by Transfer Certificate of Title (TCT) No. T-134756 of the
Register of Deeds of Caloocan, and delineated as Lot No. 3, Block No. 13,
with an area of 228 square meters. B. E. San Diego claimed that Matias
has been occupying the subject property for over a year without its
authority or consent. As both its oral and written demands to vacate
were left unheeded, B. E. San Diego filed a complaint for the recovery of
possession of the subject property against Matias on March 15, 1990
before the RTC.6
In her answer to the complaint, Matias alleged that she and her family
have been living on the subject property since the 1950s on the basis of a
written permit issued by the local government of Malabon in 1954.7
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been upheld under Article 538 of the Civil Code.12 The CA also upheld
Matias possession based on PD Nos. 1517 and 2016. 13
As its motion for reconsideration of the CAs judgment was denied,14 B.
E. San Diego filed the present petition for review on certiorari under
Rule 45 of the Rules of Court.
THE PETITION FOR REVIEW ON CERTIORARI
B. E. San Diego contends that the CA erred in reversing the RTCs finding
on the sole basis of a discrepancy, which it claims has been explained
and controverted by the evidence it presented. It assails the CA decision
for failing to consider the following evidence which adequately show
that the property covered by its TCT No. T-134756 is the same property
occupied by Matias:
a. TCT No. T-134756 issued in the name of B. E. San Diego,
covering a property delineated as Lot No. 3, Block No. 13;
b. Approved Subdivision Plan showing Lot No. 3, Block No. 3 is
situated in Barrio Catmon, Malabon;
c. Tax Declaration No. B-005-00296 issued in the name of B. E.
San Diego, referring to a property covered by TCT No. T-134756;
d. Testimonial evidence of B. E. San Diegos witness that the
property described in TCT No. T-134756 is the same property
occupied by Matias; and
e. Judicial notice taken by the RTC of Malabon, based on public
and common knowledge, that Barrio Catmon was previously part
of Barrio Tinajeros, Malabon.
Page 56 of 121
B. E. San Diego also alleges that Matias is estopped from alleging that the
property she is occupying is different from the property covered by its
TCT No. T-134756. Matias previously moved to dismiss its complaint for
recovery of possession of the subject property (accion publiciana),
raising res judicata as ground.15 She alleged that the accion publiciana16
is barred by the judgment in an earlier ejectment case,17 as both involved
the same parties, the same subject matter, and the same cause of action.
The ejectment case involved a parcel of land covered by TCT No. T134756, located at Hernandez Street, Barrio Catmon, Malabon; Matias
never questioned the identity and location of the property in that case.18
B. E. San Diego thus contends that Matias, by raising the ground of res
judicata, has impliedly admitted there is no difference in the subject
matter of the two actions and, thus, could no longer question the identity
and location of the subject property.
In controverting B. E. San Diegos petition, Matias relies on the same
points that the CA discussed in its decision.
THE COURTS RULING
The Court finds the petition meritorious.
From the errors raised in the petition, what emerges as a primary issue
is the identity of the subject matter of the case whether the subject
property that Matias occupies is the same as the property covered by B.
E. San Diegos title. Our reading of the records discloses that the two are
one and the same.
B. E. San Diegos TCT No. T-134756 refers to a property located in Barrio
Tinajeros, Malabon, but the subject property sought to be recovered
from Matias is in Barrio Catmon, Malabon. In ruling for Matias, the CA
declared that this discrepancy should have been explained by an expert
witness, which B. E. San Diego failed to present.
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The Court, however, does not find the testimony of an expert witness
necessary to explain the discrepancy. The RTC declared that the
discrepancy arose from the fact that Barrio Catmon was previously part
of Barrio Tinajeros. The RTC has authority to declare so because this is a
matter subject of mandatory judicial notice. Section 1 of Rule 129 of the
Rules of Court19 includes geographical divisions as among matters that
courts should take judicial notice of. Given that Barrio Tinajeros is
adjacent to Barrio Catmon,20 we find it likely that, indeed, the two
barrios previously formed one geographical unit.
Even without considering judicial notice of the geographical divisions
within a political unit, sufficient evidence exists supporting the RTCs
finding that the subject property B. E. San Diego seeks to recover is the
Barrio Catmon property in Matias possession. TCT No. T-134756
identifies a property in Barrio Tinajeros as Lot No. 3, Block No. 13.
Although B. E. San Diegos tax declaration refers to a property in Barrio
Catmon, it nevertheless identifies it also as Lot No. 3, Block No. 13,
covered by the same TCT No. T-134756. Indeed, both title and the tax
declaration share the same boundaries to identify the property. With
this evidence, the trial court judge can very well ascertain the facts to
resolve the discrepancy, and dispense with the need for the testimony of
an expert witness.21
Additionally, we agree with B. E. San Diego that Matias can no longer
question the identity of the property it seeks to recover when she
invoked res judicata as ground to dismiss the accion publiciana that is
the root of the present petition. An allegation of res judicata necessarily
constitutes an admission that the subject matter of the pending suit (the
accion publiciana) is the same as that in a previous one (the ejectment
case).22 That Matias never raised the discrepancy in the location stated
in B.E. San Diegos title and the actual location of the subject property in
the ejectment suit bars her now from raising the same. Thus, the issue of
identity of the subject matter of the case has been settled by Matias
Page 57 of 121
admission and negates the defenses she raised against B. E. San Diegos
complaint.
We then proceed to resolve the core issue of the accion publiciana who
between the parties is entitled possession of the subject property.
Notably, the judgment in the ejectment suit that B. E. San Diego
previously filed against Matias is not determinative of this issue and will
not prejudice B. E. San Diegos claim.23 While there may be identity of
parties and subject matter, there is no identity of cause of action
between the two cases; an action for ejectment and accion publiciana,
though both referring to the issue of possession, differ in the following
manner:
First, forcible entry should be filed within one year from the unlawful
dispossession of the real property, while accion publiciana is filed a year
after the unlawful dispossession of the real property. Second, forcible
entry is concerned with the issue of the right to the physical possession
of the real property; in accion publiciana, what is subject of litigation is
the better right to possession over the real property. Third, an action for
forcible entry is filed in the municipal trial court and is a summary
action, while accion publiciana is a plenary action in the RTC.24
B. E. San Diego anchors it right to possess based on its ownership of the
subject property, as evidenced by its title. Matias, on the other hand,
relies on (1) the 1954 permit she secured from the local government of
Malabon, (2) the Miscellaneous Sales Application, (3) the tax
declarations and realty tax payments she made annually beginning 1974,
(4) her standing as beneficiary of PD Nos. 1517 and 2016, and (5) her
long possession of the subject property since 1954 up to the present.
Unfortunately for Matias, her evidence does not establish a better right
of possession over B. E. San Diegos ownership.
The settled doctrine in property law is that no title to register land in
derogation of that of the registered owner shall be acquired by
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Page 58 of 121
Matias cannot rely on the Miscellaneous Sales Application and the local
government permit issued in her favor; neither establishes a clear right
in favor of Matias over the subject property. A sales application, in the
absence of approval by the Bureau of Lands or the issuance of a sales
patent, remains simply as an application that does not vest title in the
applicant.28 The local government permit contained only a statement of
the local executive that the case between the local government and B. E.
San Diego was decided by a trial court in favor of the former.29
The CA erroneously upheld Matias claim of possession based on PD Nos.
1517 and 2016. Matias is not a qualified beneficiary of these laws. The
tenants/occupants who have a right not to be evicted from urban lands
"does not include those whose presence on the land is merely tolerated
and without the benefit of contract, those who enter the land by force or
deceit, or those whose possession is under litigation." 30 At the time of
PD 1517s enactment, there was already a pending ejectment suit
between B. E. San Diego and Pedro Matias over the subject property.
"Occupants of the land whose presence therein is devoid of any legal
authority, or those whose contracts of lease were already terminated or
had already expired, or whose possession is under litigation, are not
considered tenants under the [PD Nos. 1517]."31 The RTC correctly
ruled that Matias cannot be considered a legitimate tenant who can avail
the benefits of these laws no matter how long her possession of the
subject property was.
***Designated
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Page 59 of 121
Id. at 2-4.
15
16
10
11
Id. at 336-339.
13
14
Supra note 4.
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Regis v. CA, G. R. No. 153914, July 31, 2007, 528 SCRA 611,
620; see also Custodio v. Corrado, G. R. No. 146082, July 30,
2004, 435 SCRA 500.
24
25
27
Javier v. CA, G. R. No. 101177, March 28, 1994, 231 SCRA 498,
507.
28
Page 60 of 121
29
Supra note 7.
31
Ibid.
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Page 61 of 121
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SO ORDERED.21
Metrobanks motion for reconsideration also suffered the same fate, as
the CA denied it on May 7, 2009.22
Before us, Metrobank insists on the validity of the foreclosure
proceedings. Essentially, it argues that foreclosure proceedings enjoy the
presumption of regularity, and the party alleging irregularity has the
burden of proving his claim. Metrobank asserts that, in this case, the
presumption of regularity was not disputed because respondents failed
to prove that the notice of sale was not published as required by law.
At the outset, it must be stated that only questions of law may be raised
before this Court in a Petition for Review under Rule 45 of the Revised
Rules of Civil Procedure. This Court is not a trier of facts, and it is not the
function of this Court to reexamine the evidence submitted by the
parties.23
It has been our consistent ruling that the question of compliance or noncompliance with notice and publication requirements of an extrajudicial
foreclosure sale is a factual issue, and the resolution thereof by the trial
court is generally binding on this Court. The matter of sufficiency of
posting and publication of a notice of foreclosure sale need not be
resolved
by this Court, especially when the findings of the RTC were sustained by
the CA. Well-established is the rule that factual findings of the CA are
conclusive on the parties and carry even more weight when the said
court affirms the factual findings of the trial court.24
The unanimity of the CA and the trial court in their factual ascertainment
that there was non-compliance with the publication requirement bars us
from supplanting their findings and substituting them with our own.
Metrobank has not shown that they are entitled to an exception to this
Page 63 of 121
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2. JUDICIAL NOTICE
Page 64 of 121
foreclosure proceedings. Further, the RTC did not even set a hearing for
the purpose of declaring its intention to take judicial notice of the
records of the extrajudicial proceedings, as required by Section 332 of
Rule 129. Metrobank, thus, contends that the RTC exceeded its authority
in taking cognizance of the records of the extrajudicial proceedings.
As correctly found by the RTC and the CA, the records30 of the
foreclosure proceedings lacked any proof of publication. This explains
why Metrobank could not present any proof of publication.
In Juaban v. Espina33 and "G" Holdings, Inc. v. National Mines and Allied
Workers Union Local 103 (NAMAWU),34 we held that, in some instances,
courts have also taken judicial notice of proceedings in other cases that
are closely connected to the matter in controversy. These cases may be
so closely interwoven, or so clearly interdependent, as to invoke a rule of
judicial notice.
We disagree.
The RTC, therefore, acted well within its authority in taking cognizance
of the records of the extrajudicial foreclosure proceedings, and the CA
cannot be faulted for sustaining the RTC.
Metrobank further questions the trial courts finding of overpayment of
interests. But like the issue on compliance with the publication
requirement, the issue on overpayment of interests involves the
ascertainment of facts not subject of review by this Court. We reiterate
that our jurisdiction is limited to reviewing and revising errors of law
imputed to the lower court, the latters findings of fact being conclusive
and not reviewable by this Court.35
Besides, we find nothing erroneous in this factual finding of the RTC. As
explained by the RTC in its decision:
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Prof. Avena
2. JUDICIAL NOTICE
[T]he Court notes that the original promissory notes evidencing the
various loans of the plaintiffs were not presented in court by either
party; they are needed to determine the stipulated interest rate. The
Court is thus left to determine the same based on the testimony of the
plaintiffs that the agreed interest rate is 12% per annum; amazingly, this
was not denied or refuted by the [petitioner] bank, in which case, 12%
interest rate is applied at least for the period beginning 1997 until 1999,
when the loan was renewed under the two (2) new promissory notes
which indicated a higher rate of interest of 17.250% per annum. As
mentioned above, the interest payments made by the [respondents]
were already admitted by [Metrobank] in its answer to the complaint as
well as in its comment to [respondents] formal offer of evidence, and
such interest payments are duly reflected and contained in the passbook
account of the [respondents], Exhibit "H," "H-1" to "H-10." But, in order
to determine whether [respondents] account has become past due or
not, as the [petitioner] bank represents, the Court deems it necessary to
undertake some mathematical computation the result of which would
decisively guide the Court to arrive at a rightful conclusion, thus:
P3,332,422.00
2) Interest due
P1,802,500.00
Page 65 of 121
from May 7, 1997 to June 30, 1999 computed as follows:
a) 1st year (P7 M x 12%), from May 7,
1997 to May 28, 1998 -
P 840,000.00
b) 2nd year
i) from June 3, 1998 to Feb. 24, 1999 (8
mos.) -
P 560,000.00
P 402,500.00
P 3,332,422.00
P 1,802,500.00
Overpaid interest -
P 1,529,922.00
Law __ Evidence
Prof. Avena
2. JUDICIAL NOTICE
[respondents] were able to pay the interest due. Therefore, the Court is
again convinced that the nullification prayed for is in order.36
We need not say more.
In fine, the right of a bank to foreclose a mortgage upon the mortgagor's
failure to pay his obligation must be exercised according to its clear
mandate, and every requirement of the law must be complied with, or
the valid exercise of the right would end. The exercise of a right ends
when the right disappears, and it disappears when it is abused especially
to the prejudice of others.37
As further declared by this Court in Philippine Savings Bank v. Spouses
Dionisio Geronimo and Caridad Geronimo:38
While the law recognizes the right of a bank to foreclose a mortgage
upon the mortgagor's failure to pay his obligation, it is imperative that
such right be exercised according to its clear mandate. Each and every
requirement of the law must be complied with, lest, the valid exercise of
the right would end. It must be remembered that the exercise of a right
ends when the right disappears, and it disappears when it is abused
especially to the prejudice of others.1avvphi1
We, therefore, affirm the CA and sustain the RTC in nullifying the
extrajudicial foreclosure of real estate mortgage and sale, including
Metrobanks title.
With this disquisition, we find no necessity to discuss the issue of the
validity of the consolidation of title by Metrobank.
WHEREFORE, the petition is DENIED. The challenged Decision and
Resolution of the Court of Appeals in CA-G.R. CV No. 87775 are
AFFIRMED.
SO ORDERED.
Page 66 of 121
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2. JUDICIAL NOTICE
Page 67 of 121
SECOND DIVISION
G.R. No.172551
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Prof. Avena
2. JUDICIAL NOTICE
Page 68 of 121
The CA dismissed the LBPs appeal.19 Significantly, it did not find the
LBPs assigned errors the RTC-SACs reliance on the valuation made by
Branches 35 and 36 in the civil cases to be persuasive. First, according
to the CA, the parcels of land in the civil cases were the very same
properties in the appealed agrarian case. Second, Branch 36s valuation
was based on the report of the duly appointed commissioners and was
arrived at after proper land inspection. As the determination of just
compensation is essentially a judicial function, the CA thus affirmed the
RTC-SACs valuation which was founded on factual and legal bases. The
LBP filed the present petition after the CA denied its motion for
reconsideration20 in the CAs May 3, 2006 resolution.21
Yatco argues that the RTC-SAC correctly fixed the just compensation for
its property at P200.00 per square meter.23 It points to several reasons
for its position. First, the RTC-SACs valuation was not only based on the
valuation fixed by Branch 36 (as adopted by Branch 35); it was also
based on the propertys market value as stated in the current tax
declaration that it presented in evidence before the RTC-SAC. Second,
the RTC-SAC considered the evidence of both parties; unfortunately for
the LBP, the RTC-SAC found its evidence wanting and in total disregard
of the factors enumerated in Section 17 of R.A. No. 6657. And third, the
RTC-SAC considered all of the factors enumerated in Section 17 when it
set the propertys value at P200.00 per square meter. Procedurally,
Yatco claims that the present petitions issues and arguments are purely
factual and they are not allowed in a petition for review on certiorari and
the LBP did not point to any specific error that the CA committed when it
affirmed the RTC-SACs decision.
The Petition
The LBP argues in the present petition that the CA erred when it
affirmed the RTC-SACs ruling that fixed the just compensation for the
property based on the valuation set by Branches 35 and 36.22 The LBP
pointed out that the property in the present case was expropriated
pursuant to its agrarian reform program; in contrast, the land subject of
the civil cases was expropriated by the National Power Corporation
(NAPOCOR) for industrial purposes.
The Issue
Based on the parties submissions, only a single issue is before us,i.e., the
question of whether the RTC-SACs determination of just compensation
for the property was proper.
The LBP added that in adopting the valuation fixed by Branches 35 and
36, the RTC-SAC completely disregarded the factors enumerated in
Section 17 of R.A. No. 6657 and the guidelines and procedure laid out in
DAR AO 5-98.
Finally, the LBP maintains that it did not encroach on the RTC-SACs
prerogative when it fixed the valuation for the property as it only
followed Section 17 of R.A. No. 6657 and DAR AO 5-98, and merely
discharged its mandate under E.O. No. 405.
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Prof. Avena
2. JUDICIAL NOTICE
Page 69 of 121
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2. JUDICIAL NOTICE
Page 70 of 121
When acting within the parameters set by the law itself, the RTC-SACs,
however, are not strictly bound to apply the DAR formula to its minute
detail, particularly when faced with situations that do not warrant the
formulas strict application; they may, in the exercise of their discretion,
relax the formulas application to fit38 the factual situations before
them.39 They must, however, clearly explain the reason for any deviation
from the factors and formula that the law and the rules have provided.40
The rules allow the courts to take judicial notice of certain facts; the
RTC-SACs valuation is erroneous
Law __ Evidence
Prof. Avena
2. JUDICIAL NOTICE
Page 71 of 121
A2. When the CNI factor is not present, and CS and MV are applicable,
the formula shall be:
LV = (CS x 0.9) + (MV x 0.1)
A3. When both the CS and CNI are not present and only MV is applicable,
the formula shall be: LV = MV x 2
In no case shall the value of idle land using the formula MV x 2 exceed
the lowest value of land within the same estate under consideration or
within the same barangay or municipality (in that order) approved by
LBP within one (1) year from receipt of claimfolder.
After considering these factors and formula, we are convinced that the
RTC-SAC completely disregarded them and simply relied on Branch 36s
valuation. For one, the RTC-SAC did not point to any specific evidence or
cite the values and amounts it used in arriving at the P200.00 per square
meter valuation. It did not even consider the propertys market value
based on the current tax declaration that Yatco insists the RTC-SAC
considered in addition to Branch 36s valuation. Assuming that the RTCSAC considered the propertys market value (which, again, we find that it
did not), this alone will not suffice as basis, unless justified under Item
II.A.3 of DAR AO 5-98 (as provided above). Then too, it did not indicate
the formula that it used in arriving at its valuation or which led it to
believe that Branch 36s valuation was applicable to this case. Lastly, the
RTC-SAC did not conduct an independent assessment and computation
using the considerations required by the law and the rules.
To be exact, the RTC-SAC merely relied on Branch 36s valuation as it
found the LBPs evidence on the matter of just compensation inadequate.
While indeed we agree that the evidence presented by the LBP was
inadequate and did not also consider the legally prescribed factors and
formula, the RTC-SAC still legally erred in solely relying on Yatcos
Law __ Evidence
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2. JUDICIAL NOTICE
Page 72 of 121
We need not delve into the factors that Branches 35 and 36 considered
in the civil cases. By simply looking at the expropriating body
(NAPOCOR) and the law governing the expropriations made, we are
convinced that the valuation fixed by Branch 36 is inapplicable to the
present case. A comparison of the required parameters and guidelines
used alone demonstrates the disparity.
Also, we point out that the RTC-SAC adopted Branch 36s valuation
without any qualification or condition. Yet, in disposing of the present
case, the just compensation that it fixed for the property largely differed
from the former. Note that Branch 36 fixed a valuation of P20.00 per
square meter;58 while the RTC-SAC, in the present case, valued the
property at P200.00 per square meter.59 Strangely, the RTC-SAC did not
offer any explanation nor point to any evidence, fact or particular that
justified the obvious discrepancy between these amounts.
Lastly, in ascertaining just compensation, the fair market value of the
expropriated property is determined as of the time of taking.60 The "time
of taking" refers to that time when the State deprived the landowner of
the use and benefit of his property, as when the State acquires title to the
property61 or as of the filing of the complaint, per Section 4, Rule 67 of
the Rules of Court.62
The decision in Civil Case No. 2259-95-C, which pegged the valuation
at P20.00 per square meter, was made in 1997. The record did not
disclose when title to the land subject of that case was transferred to the
State. We can safely assume, however, that the "taking" was made in
1997 (the date Branch 36 issued its decision) or at the time of the filing
of the complaint, which logically was prior to 1997.
The RTC-SAC, in the present case, rendered its decision in 2004; the LBP
filed the petition for judicial determination of just compensation in 2002.
Obviously, the "taking" of the property could not have been made any
earlier than 2002; otherwise, the parties would have pointed these out.
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2. JUDICIAL NOTICE
Page 73 of 121
Between 1997 in Civil Case No. 2259-95-C and the earliest taking in
2002 in this case is a difference of 5 years a significant gap in the
matter of valuation since the lands involved are not in the hinterlands,
but in the rapidly industrializing Calamba, Laguna.
take into consideration the factors laid down by law and the pertinent
DAR regulations.
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Prof. Avena
2. JUDICIAL NOTICE
ANTONIO T. CARPIO
Associate Justice
Chairperson
MARIANO C. DEL CASTILLO
Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of
the Courts Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairperson s Attestation, I certify that the conclusions in the above
Decision had been reached in consultation before the case was assigned
to the writer of the opinion of the Courts Division.
MARIA LOURDES P. A. SERENO
Chief Justice
Page 74 of 121
1
Id. at 73-74.
Id. at 244.
Footnotes
Dated June 20, 2006 and filed on June 22, 2006; rollo, pp. 23-61.
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Prof. Avena
2. JUDICIAL NOTICE
Order No. 6, Series of 1992 (DAR AO 6-92), No. 11, Series of 1994
and No. 5, Series of 1998.
9
Page 75 of 121
23
24
11
Id. at 208.
12
13
Supra note 4.
Republic Act (R.A.) No. 6657 which took effect on June 15,
1988.
16
17
Rollo, pp. 151-156; Order dated October 26, 2004, pp. 149-150
18
19
Supra note 2.
20
21
Supra note 3.
22
Supra note 1.
27
Law __ Evidence
28
Prof. Avena
2. JUDICIAL NOTICE
30
Page 76 of 121
This view is shared by and enunciated in Land Bank of the
Philippines v. Bienvenido Castro, supra, citing Land Bank of the
Philippines v. Chico, G.R. No. 168453, March 13, 2009, 581 SCRA
226, 243; Apo Fruits Corporation v. Court of Appeals, G.R. No.
164195, December 19, 2007, 541 SCRA 117, 131-132.
39
31
32
33
G.R. No. 165428, November 25, 2009, 605 SCRA 426, 434-436.
34
35
G.R. No. 169903, February 29, 2012, 667 SCRA 255, 268-271.
36
37
Ibid.
Supra.
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Prof. Avena
2. JUDICIAL NOTICE
Page 77 of 121
Lee v. Land Bank of the Philippines, supra note 43, at 58, citing
TBoli AgroIndustrial Development, Inc. v. Solipapsi, 442 Phil.
499, 513 (2002); and Land Bank of the Philippines v. Sps. Banal,
supra note 30, at 713.
45
.12
AGP= Average Gross Production corresponding to the
latest available 12 months gross production immediately
preceding the date of FI (field investigation)
48
Id. at 300.
49
Id. at 300.
CNI =
xxx
.12
Where:
CNI= (AGPxSP) - CO
Where:
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2. JUDICIAL NOTICE
Page 78 of 121
COMMONWEALTH ACT NO. 120 AN ACT CREATING THE
"NATIONAL POWER CORPORATION," PRESCRIBING ITS
POWERS AND ACTIVITIES, APPROPRIATING THE NECESSARY
FUNDS THEREFOR, AND RESERVING THE UNAPPROPRIATED
PUBLIC WATERS FOR ITS USE. Approved on November 3, 1936.
54
xxx
D. In the computation of Market Value per Tax Declaration (MV),
the most recent Tax Declaration (TD) and Schedule of Unit
Market Value (SMV) issued prior to receipt of claimfolder by LBP
shall be considered. The Unit Market Value (UMV) shall be
grossed up from the date of its effectivity up to the date of
receipt of claimfolder by LBP from DAR for processing, in
accordance with item II.A.A.6.
xxx
Sec. 3. Powers and General Functions of the Corporation.
The powers, functions, rights and activities of the
Corporation shall be the following:
xxx
52
53
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2. JUDICIAL NOTICE
Page 79 of 121
Rollo, p. 295.
Law __ Evidence
59
Prof. Avena
2. JUDICIAL NOTICE
Id. at 149-150.
Page 80 of 121
Land Bank of the Philippines v. Sps. Banal, supra note 30, at
708.
64
65
66
60
61
62
63
Law __ Evidence
Prof. Avena
2. JUDICIAL NOTICE
July 3, 2013
Page 81 of 121
son Andres Navarro, Jr. The heirs of Andres, Jr. are the respondents
herein.4
Petitioner and her sister Lydia discovered that respondents are claiming
exclusive ownership of the subject lot. Respondents based their claim on
the Affidavit of Transfer of Real Property dated May 19, 1954 where
Andres, Sr. donated the subject lot to Andres, Jr.5
Believing that the affidavit is a forgery, the sisters, through Assistant
Fiscal Andres Marcos, requested a handwriting examination of the
affidavit. The PNP handwriting expert PO2 Mary Grace Alvarez found
that Andres, Sr.s signature on the affidavit and the submitted standard
signatures of Andres, Sr. were not written by one and the same person.6
Thus, the sisters sued the respondents for annulment of the deed of
donation before the Regional Trial Court (RTC) of Masbate, where the
case was docketed as Civil Case No. 5215.7
DECISION
VILLARAMA, JR., J.:
Petitioner Luisa Navarro Marcos appeals the Decision1 dated February
28, 2011 and Resolution2 dated July 29, 2011 of the Court of Appeals
(CA) in CA-G.R. SP No. 92460.
The antecedent facts follow:
Spouses Andres Navarro, Sr. and Concepcion Medina-Navarro died in
1958 and 1993, respectively. They left behind several parcels of land
including a 108.3997-hectare lot (subject lot) located in Cayabon,
Milagros, Masbate.3
The spouses were survived by their daughters Luisa Navarro Marcos,
herein petitioner, and Lydia Navarro Grageda, and the heirs of their only
Law __ Evidence
Prof. Avena
2. JUDICIAL NOTICE
The sisters sought reconsideration of the order but the RTC denied their
motion in an Order11 dated October 11, 2005.
Aggrieved, the sisters filed a petition for certiorari before the CA, which
however, dismissed their petition in the assailed Decision dated
February 28, 2011 on the ground that the dismissal of Civil Case No.
5215 has mooted the issue of PO2 Alvarezs disqualification as a witness.
Later, the CA likewise denied their motion for reconsideration in its
Resolution dated July 29, 2011. The CA refused to take judicial notice of
the decision of another CA Division which reinstated Civil Case No. 5215.
The CA held that a CA Justice cannot take judicial notice of decisions or
matters pending before another Division of the appellate court where he
or she is not a member. The CA also held that the sisters were negligent
for belatedly informing it that Civil Case No. 5215 was reinstated.
Hence, this appeal.
Petitioner argues that the CA erred in refusing to reconsider the assailed
decision in light of the reinstatement of Civil Case No. 5215. Petitioner
adds that the CA erred in not ruling that the RTC committed grave abuse
of discretion in disqualifying PO2 Alvarez as a witness.12 They stress that
PO2 Alvarez will be presented as an expert witness to render an opinion
on whether the disputed handwriting was indeed made by Andres, Sr. or
whether it is a forgery.13
In their comment,14 respondents counter that the CA properly
disqualified PO2 Alvarez. They also agreed with the CA that her
disqualification was mooted by the dismissal of Civil Case No. 5215.
We find in favor of petitioner.
The CA ruling that the dismissal of Civil Case No. 5215 has mooted the
issue of PO2 Alvarezs disqualification as a witness can no longer be
Page 82 of 121
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2. JUDICIAL NOTICE
Page 83 of 121
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2. JUDICIAL NOTICE
examiner was allowed in Tamani. But the RTC already ruled at the outset
that PO2 Alvarezs testimony is hearsay even before her testimony is
offered and she is called to the witness stand. Under the circumstances,
the CA should have issued a corrective writ of certiorari and annulled
the RTC ruling.
Page 84 of 121
SO ORDERED.
MARTIN S. VILLARAMA, JR.
Associate Justice
WE CONCUR:
True, the use of the word "may" in Section 49, Rule 130 of the Rules on
Evidence signifies that the use of opinion of an expert witness is
permissive and not mandatory on the part of the courts.23 Jurisprudence
is also replete with instances wherein this Court dispensed with the
testimony of expert witnesses to prove forgeries.24 However, we have
also recognized that handwriting experts are often offered as expert
witnesses considering the technical nature of the procedure in
examining forged documents.25 More important, analysis of the
questioned signature in the deed of donation executed by the late
Andres Navarro, Sr. in crucial to the resolution of the case.
In sum, the RTC should not have disqualified P02 Alvarez as a witness.
She has the qualifications of witness and possess none of the
disqualifications under the Rules. The Rules allow the opinion of an
expert witness to be received as evidence. In Tamani, we used the
opinion of an expert witness. The value of P02 Alvarez's expert opinion
cannot be determined if P02 Alvarez is not even allowed to testify on the
handwriting examination she conducted.
WHEREFORE, we GRANT the petition. We SET ASIDE the (1) Decision
dated February 28, 2011 and Resolution dated July 29, 2011 of the Court
of Appeals in CA-G.R. SP No. 92460, and (2) Orders dated August 19,
2004 and October II, 2005 of the Regional Trial Court in Civil Case No.
5215. We DENY respondents' motion to disqualify P02 Mary Grace
Alvarez as a witness.
BIENVENIDO L. REYES
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII of the 1987 Constitution, I certify that
the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court's
Division.
MARIA LOURDES P. A. SERENO
Chief Justice
Footnotes
No pronouncement as to costs.
LUCAS P. BERSAMIN
Associate Justice
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2. JUDICIAL NOTICE
Page 85 of 121
* Rollo, pp. 14, 42. While Lydia Navarro Grageda is named as copetitioner in the title of the petition, only Luisa Navarro Marcos
has verified it.
15
16
Id. at 297-306.
17
Id. at 307-308.
Id. at 54-57.
Republic of the Philippines v. Hon. Ramon S. Caguioa, et al., G.R.
No. 174385, February 20, 2013, p. 10.
19
Id. at 48.
Id.
20
Id.
21
Id.
22
Id.
23
Id. at 48-49.
Id. at 211.
10
11
Id. at 26.
12
Rollo, p. 29.
13
Id. at 35.
14
Id. at 530-532.
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Prof. Avena
3. JUDICIAL ADMISSIONS
3. JUDICIAL ADMISSIONS
FRANCISCO, J.:p
Accused-appellant Cristina Hernandez was charged with the
crime of illegal recruitment committed in large scale in violating
of Article 38 (a) and (b) in relation to Article 13 (b) and (c) of the
New Labor Code 1, committed as follows:
That in or about and during the period comprised
between December 14, 1988 to December 24, 1988,
inclusive in the City of Manila, Philippines, the said
accused representing herself to have the capacity to
contract, enlist and transport Filipino workers for
employment abroad, did then and there willfully and
unlawfully for a fee, recruit and promise employment/job
placement abroad to the following persons to wit:
ROGELIO N. LEGASPI, ULDARICO P. LEGASPI, SONNY P.
BERNABE, ARNEL B. MENDOZA, BENITO L. BERNABE,
ARNOLD P. VALENZUELA, ARMANDO P. PAGULAYAN,
GREGORIO P. MENDOZA, JR., RONALD T. CORREA,
DANILO PALAD and ROBERT P. VELASQUEZ (herein
known as private complainants) without first having
Page 86 of 121
secured the required license or authority from the POEA. 2
(Emphasis supplied.)
Upon arraignment, appellant pleaded not guilty and trial on the
merits ensued. Of the fourteen (14) private complainants, four
(4) were presented as witnesses for the prosecution, namely:
Benito L. Bernabe, Robert P. Velasquez, Gregorio P. Mendoza and
Arnel Mendoza. They testified to the following essential facts:
Private complainants' first encounter with the appellant was on
December 12, 1988 when one Josefa Cinco accompanied them to
the office of the Philippine Thai Association, Inc. (PhilippineThai) in Ermita, Manila to meet the appellant. Introducing herself
as the general manager of Philippine-Thai, appellant asserted
that her company recruited workers for placement abroad and
asked private complainants if they wanted to work as factory
workers in Taipeh. Enticed by the assurance of immediate
employment and an $800 per month salary, private
complainants applied. Appellant required private complainants
to pay placement and passport fees in the total amount of
P22,500.00 per applicant, to be paid in three installments, to wit:
P1,500 on December 14, 1988, P10,000.00 on December 16,
1988, and P11,000.00 on December 22, 1988. When the
complainants-witnesses paid the first two installments, they
were issued receipts by Liza Mendoza, the alleged treasurer of
Philippine-Thai signed by the latter in the presence of the
appellant. The receipts for the last installment paid by them were
signed by Liza Mendoza, and the appellant. After having received
the entire amount 3 from the witnesses, appellant assured them
that they would be able to leave for Taipeh sometime before the
end of December, 1988. But contrary to appellant's promise,
complainants-witnesses were unable to leave for abroad. They
demanded for the return of their money but to no avail.
Appellant's unfulfilled promise of employment and her refusal to
Law __ Evidence
Prof. Avena
3. JUDICIAL ADMISSIONS
return the money that had been paid by way of placement and
passport fees, triggered the filing of the complaint.
For its part, the defense presented as its lone witness, the
appellant whose testimony consisted mainly in denying the
charges against her. Appellant claimed that she never met any of
the complainants nor did she ever recruit any of them. She
likewise denied having received money from anyone and
asserted that she did not know any Liza Mendoza who is the
alleged treasure of Philippine-Thai. Appellant maintained that
although she had an office in Ermita Building located at Arquiza
Street, Ermita, Manila, the said office belonged to B.C. Island
Wood Products Corporation which was engaged in the logging
business. However, when questioned further, appellant admitted
being the president of Philippine-Thai but only in a nominal
capacity, and claimed that as nominee-president, she did not
participate in any of its transactions. Appellant likewise insisted
that Philippine-Thai was engaged solely in the barong tagalog
business.
After careful calibration of the evidence presented by the
prosecution and the defense, the court a quo rendered a decision
holding that the defense of "denial" interposed by the accused
could not prevail over the positive and clear testimonies of the
prosecution witnesses which had established the guilt of the
accused beyond reasonable doubt. 4 The dispositive portion of
the decision reads:
WHEREFORE, premises considered, this Court hereby
finds that the accused CRISTINA HERNANDEZ, (sic) guilty
beyond reasonable doubt of the crime of illegal
recruitment, committed in large scale, as defined in
Article 38(a) & (b) of Presidential Decree No. 1412, . . . in
relation to Article 13(b) and (c) . . . , accordingly,
Page 87 of 121
sentences the accused to suffer the penalty of life
imprisonment (RECLUSION PERPETUA) with the
accessory penalties provided for by law; to pay a fine of
ONE HUNDRED THOUSAND (P100,000.00) PESOS
without subsidiary imprisonment in case of insolvency;
to return and pay to BENITO L. BERNABE the amount of
TWENTY EIGHT THOUSAND AND FIVE HUNDRED
(P28,500) PESOS; to ROBERT P. VELASQUEZ the amount
of TWENTY TWO THOUSAND AND FIVE HUNDRED
(P22,500.00) PESOS; to GREGORIO P. MENDOZA the
amount of TWENTY TWO THOUSAND FIVE HUNDRED
(22,500.00) PESOS; to ARNEL MENDOZA the amount of
TWENTY TWO THOUSAND FIVE HUNDRED (P22,500.00)
PESOS also without subsidiary imprisonment in case of
insolvency; and to pay the costs.
SO ORDERED.
Manila, Philippines, November 29, 1991. 5
Appellant comes to this Court for the reversal of the judgment of
conviction assigning the following errors against the lower court:
I
THE TRIAL COURT ERRED IN FINDING THE ACCUSED
"LIABLE OF (sic) ILLEGAL RECRUITMENT COMMITTED
IN A LARGE SCALE AND BY A SYNDICATE (sic)" FOR
HAVING "MAINTAINED OFFICE WITHOUT LICENSE OR
REGISTRATION FROM THE DEPARTMENT OF LABOR,
THRU ITS OFFICE, THE PHILIPPINE OVERSEAS
EMPLOYMENT ADMINISTRATION (POEA)."
II
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Page 88 of 121
stipulation of facts is null and void for being contrary to law and
public policy. Appellant posits the foregoing arguments to
bolster her contention that the stipulation of facts did not relieve
the prosecution of its duty to present evidence to prove all the
elements of the crime charged to the end that the guilt of the
accused may be proven beyond reasonable doubt.
At the outset, it should be said that the above contention and the
arguments are insignificant in view of the fact that records
disclose that the prosecution had in fact presented evidence to
prove the said element of the crime of illegal recruitment.
"EXHIBIT I", a certification issued by the Chief Licensing Branch
of the POEA, attesting to the fact that neither appellant nor
Philippine-Thai is licensed/authorized to recruit workers for
employment abroad, was offered and admitted in evidence
without the objection of the appellant. 8
Although appellant's arguments find no significant bearing in the
face of the existence of "EXHIBIT I", they nonetheless require
deeper scrutiny and a clear response for future application.
Hence, the following discussion.
Appellant correctly distinguishes between an admission that a
particular witness if presented in court would testify to certain
facts, and an admission of the facts themselves. According to the
appellant, what was stipulated on between the prosecution and
defense counsel at the hearing on June 6, 1990 was "merely that
the testimony of the Chief Licensing Officer of the POEA would be
to the effect that appellant is not licensed nor authorized to
recruit workers", 9 Thus:
Prosecutor
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Page 89 of 121
same effect as if the witness had testified to the facts. Such
testimony the party is free to contradict. 11
Court
She claims that the foregoing clearly indicate that there was no judicial
admission of the fact of non-possession of a license/authority but rather
a mere admission that the witness, if presented, would testify to such
fact. This being the case, it remained incumbent upon the prosecution to
present evidence of such fact. To buttress her position, the following was
cited to note the distinction:
Suppose a case is set for trial and one of the parties
moves for a continuance because of the absence of W, an
important witness. His opponent, who is anxious to go to
trial; asks what are the facts to which W would testify.
The other attorney tells him, adding: "If I consent to the
overruling of my motion, will you stipulate that those are
the facts?" The attorney who is pressing for trial says:
"No but I will stipulate that if W were called in this case as
a witness, he would so testify." What is the difference
between the two stipulations?
In the first stipulation proposed there is a judicial
admission of the facts, and they cannot be contradicted.
But the second stipulation proposed will only have the
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Page 90 of 121
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Page 91 of 121
The record discloses that the defense counsel stipulated
to what certain witnesses would testify if they were
present in court. . . .
. . . The defendant contends that it was error for his
counsel to make these stipulations. This court has held
that an accused may by stipulation waive the necessity of
a proof of all or any part of the case which the people
have alleged against him and that having done so, he
cannot complain in this Court of evidence which he has
stipulated into the
record. 23
The collorally issue left for the determination of this Court is whether or
not Section 4 of Rule 118requiring an agreement or admission made
or entered during the pre-trial conference to be reduced in writing and
signed by the accused and his counsel before the same may be used in
evidence against the accused-equally applies to a stipulation of facts
made during trial. We resolved this issue in the negative.
A stipulation of facts entered into by the prosecution and defense
counsel during trial in open court is automatically reduced into writing
and contained in the official transcript of the proceedings had in court.
The conformity of the accused in the form of his signature affixed thereto
is unnecessary in view of the fact that: ". . . an attorney who is employed
to manage a party's conduct of a lawsuit . . . has prima facie authority to
make relevant admissions by pleadings, by oral or written stipulation, . . .
which unless allowed to be withdrawn are conclusive." 24 (Emphasis
supplied.) In fact, "judicial admission are frequently those of counsel or
of the attorney of record, who is, for the purpose of the trial, the agent of
his client. When such admissions are made . . . for the purpose of
dispensing with proof of some fact, . . . they bind the client, whether
made during, or even after, the trial." 25
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The foregoing find basis in the general rule that a client is bound by the
acts of his counsel who represents him. 26 For all intents and purposes,
the acts of a lawyer in the defense of a case are the acts of his client. The
rule extends even to the mistakes and negligence committed by the
lawyer except only when such mistakes would result in serious injustice
to the client. 27 No cogent reason exists to make such exception in this
case. It is worth noting that Atty. Ulep, appellant's counsel in the lower
court, agreed to the stipulation of facts proposed by the prosecution not
out of mistake nor inadvertence, but obviously because the said
stipulation of facts was also in conformity of defense's theory of the case.
It may be recalled that throughout the entire duration of the trial,
appellant staunchly denied ever having engaged in the recruitment
business either in her personal capacity or through Philippine-Thai.
Therefore, it was but logical to admit that the POEA records show that
neither she nor Philippine-Thai was licensed or authorized to recruit
workers.
It is true that the rights of an accused during trial are given paramount
importance in our laws on criminal procedure. Among the fundamental
rights of the accused is the right to confront and cross-examine the
witnesses against
him. 28 But the right of confrontation guaranteed and secured to the
accused is a personal privilege which may be waived. 29 Thus, in the case
of U.S. vs. Anastasio, 30 this Court deemed as a waiver of the right of
confrontation, the admission by the accused that witnesses if present
would testify to certain facts stated in the affidavit of the prosecution. 31
In the same vein, it may be said that such an admission is a waiver of the
right of an accused to present evidence on his behalf. Although the right
to present evidence is guaranteed by no less than the Constitution itself
for the protection of the accused, this right may be waived expressly or
impliedly. 32 This is in consonance with the doctrine of waiver which
recognizes that ". . . everyone has a right to waive, and agree to waive,
the advantage of a law or rule made solely for the benefit and protection
Page 92 of 121
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Page 93 of 121
other illegal recruitment case nor did it allow the accused to be heard
thereon.
It is true that as a general rule, courts are not authorized to take judicial
notice of the contents of the records of other cases, even when such
cases have been tried or are pending in the same court, and
notwithstanding the fact that both cases may have been tried or are
actually pending before the same judge. 35 However, this rule is subject
to the exception that:
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Anent the last assignment of error, suffice it to say that we do not find
any compelling reason to reverse the findings of the lower court that
appellant's bare denials cannot overthrow the positive testimonies of
the prosecution witnesses against her.
Page 94 of 121
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Page 95 of 121
xxxx
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Page 96 of 121
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Page 97 of 121
took her money and pieces of jewelry and handed them over to
Reynaldo Darilag. She also identified Rustico Abay, Jr. as one of the
companions of the robbers.[6]
CONTRARY TO LAW.[4]
When arraigned, all the accused pleaded not guilty. However, upon
motion filed by accused Ramoncito Aban, with the conformity of the
public prosecutor and private complainants Thelma Andrade and
Gloria Tolentino, he was allowed to withdraw his earlier plea of
"not guilty". Thus, on September 11, 1997, Ramoncito Aban, with
the assistance of his counsel, pleaded "guilty" to the crime of simple
robbery and on even date, the trial court sentenced him.
Meanwhile, trial proceeded with respect to the other accused.
The prosecution presented the following witnesses: Thelma
Andrade, Gloria Tolentino and Ramoncito Aban.
Thelma Andrade, a conductress of the Kapalaran Bus Line, testified
that in the evening of February 17, 1994, the bus she was on was
held-up. She said that Ramoncito Aban took from her, at gunpoint,
the fares she collected from the passengers of the bus. She also
identified Rustico Abay, Jr. and Ernesto Ricalde as two of the other
companions of Aban.[5]
Gloria Tolentino, a passenger of the bus, testified that someone
shouted "hold-up" and ordered them to bow their heads. She
obeyed the order but once in a while she would raise her head.
According to Tolentino, the man seated beside her, Ariston Reyes,
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Page 98 of 121
SO ORDERED.[12]
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Page 99 of 121
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we are in agreement with the OSG that the defense of alibi cannot
prevail over the positive identification of the accused in this case.
Worth stressing, this Court has consistently ruled that the defense
of alibi must be received with suspicion and caution, not only
because it is inherently weak and unreliable, but also because it can
be easily fabricated.[20] Alibi is a weak defense that becomes even
weaker in the face of the positive identification of the accused. An
alibi cannot prevail over the positive identification of the
petitioners by credible witnesses who have no motive to testify
falsely.[21]
In this case, petitioners defense of alibi rested solely upon their
own self-serving testimonies. For their defense of alibi to prosper,
it should have been clearly and indisputably demonstrated by them
that it was physically impossible for them to have been at, or near,
the scene of the crime at the time of its commission. But as the trial
court correctly ruled, it was not impossible for the petitioners to be
at the scene of the crime since petitioners place of detention is less
than an hour ride from the crime scene. Moreover, no dubious
reason or improper motive was established to render the
testimonies of Andrade, Tolentino and Aban false and unbelievable.
Absent the most compelling reason, it is highly inconceivable why
Andrade, Tolentino and Aban would openly concoct a story that
would send innocent men to jail.[22]
Similarly, petitioners assert that the testimonies of Andrade and
Tolentino are incredible and unsubstantiated. They question the
failure of Tolentino to identify Punzalan in court, and stress that
Andrade and Tolentino were not able to identify all the accused.
The OSG, on the other hand, maintains that the testimonies of
Andrade and Tolentino are credible since the facts testified to by
them and Aban support each other.
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December 4, 2009
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and the corresponding request for examination was then prepared. The
following day, the confiscated sachets were sent to and received by the
Tarlac Provincial Crime Laboratory Field Office. When subjected to
qualitative examination, the substances in the plastic sachets and plastic
bags were found positive for methamphetamine hydrochloride.
For its part, the defense offered in evidence the sole testimony of
Fernando. His defense relied on denial and alleged fabrication of the
charge by the police, thus:
At around 4:35 in the afternoon of September 12, 2002, while at home in
Anao, Tarlac resting, Fernando was asked by a neighbor, Cortez, to
accompany him to Ramos, Tarlac to buy a duck. At that time, Cortez had
with him a backpack, the contents of which Fernando knew nothing
about.
In Ramos, Tarlac, the two, after buying a duck, repaired to a house whose
owner was not known to Fernando. Cortez went inside the house with
his backpack, leaving Fernando outside the front yard. Not long
thereafter, the police arrived, fired a warning shot, and went inside the
house. After a while, the policemen emerged from the house
accompanied by two individuals who pointed to Fernando as Cortezs
companion, a fact Fernando readily admitted. The policemen then
proceeded to arrest Fernando on the pretext he and Cortez were earlier
peddling shabu in the town of Paniqui. As they were not able to
apprehend Cortez, the arresting officers had Fernando hold and admit
ownership of Cortezs backpack earlier taken from inside the house.
Fernando denied ownership of the backpack that contained items
belonging to Cortez, such as but not limited to the cell phone, laptop
computer, drivers license, and wallet. A bank book and Metrobank
deposit slip signed by Cortez were also inside the bag.
The Ruling of the RTC and CA
After due proceedings, the RTC, invoking, among other things, the
presumptive regularity in the performance of official duties, rendered,
on September 1, 2005, its judgment3 finding Fernando guilty beyond
reasonable doubt of possession of 14.052 grams of the prohibited drug,
methamphetamine hydrochloride, commonly known as shabu. The fallo
reads:
WHEREFORE, the prosecution having proven the guilt of the accused
beyond reasonable doubt, the court hereby sentences him to suffer the
penalty of life imprisonment, to pay the fine of P400,000.00 and to pay
the costs.
The Tarlac Provincial Crime Laboratory who has custody of the 14.052
grams of shabu, subject of this case is hereby ordered to transmit the
same to the Philippine Drug Enforcement Agency for proper disposition
and furnish the court proof of compliance.
SO ORDERED.
Therefrom, Fernando went on appeal to the CA, docketed as CA-G.R. CRH.C. No. 01688.
Eventually, the CA issued the assailed decision dated January 22, 2007,
affirming that of the trial court, thus:
WHEREFORE, premises considered, the Decision dated September 1,
2005 of the Regional Trial Court, Branch 65 of Tarlac City in Criminal
Case No. 12318 finding accused-appellant Fernando Gutierrez y Gatso
GUILTY beyond reasonable doubt of violation of Section 11, Rule II of
Republic Act No. 9165 or the Dangerous Drugs Act of 2002 is hereby
AFFIRMED.
SO ORDERED.4
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The Issues
Undaunted, Fernando is now with this Court via the present recourse
raising the very same assignment of errors he invoked before the CA,
thus:
I
THE COURT A QUO ERRED IN GIVING WEIGHT AND
CREDENCE TO THE TESTIMONY OF THE PROSECUTION
WITNESSES.
II
THE TRIAL COURT ERRED IN FINDING THE ACCUSEDAPPELLANT GUILTY BEYOND REASONABLE DOUBT FOR
VIOLATION OF SECTION 11, ARTICLE II, R.A. NO. 9165.5
The foregoing assignment of errors can actually be reduced and
summarized to one: the credibility of the testimonies of the three police
officers as prosecution witnesses and the weight to be accorded on said
parol evidence.
The parties chose not to file any supplemental briefs, maintaining their
respective positions and arguments in their briefs filed before the CA.
The Courts Ruling
The appeal is bereft of merit.
In prosecution proceedings involving illegal possession or sale of
prohibited drugs, credence is usually accorded the narration of the
incident by the prosecution witnesses, especially when they are police
officers who are presumed to have performed their duties in a regular
In the case at bench, there is nothing in the records that would dictate a
departure from the above doctrinal rule as far as the testimonies of
prosecution witnesses PO3 Credo, SPO1 Fernandez, and P/Insp. Dumlao
are concerned. We see no valid reason, in fine, to discredit the veracity of
their narration. And as aptly noted by the trial court, there is no evidence
of any ill motive on the part of the police officers who merely responded
to a tip about a drug-pushing incident in their area.
The prosecutions evidence established the fact that a bona fide followup operation was undertaken following a phone call, reporting some
drug-pushing activities in Poblacion Norte. To recall, PO3 Credo, SPO1
Fernandez, and P/Insp. Dumlao, Chief of the Ramos police station, made
up the team that proceeded to the reported area to check the veracity of
the drug-related call. Upon reaching the target site, they espied
Fernando passing sachets of white crystalline substance. And Fernando,
upon noticing the arrival of policemen, lost no time in fleeing from the
scene. PO3 Credo gave chase and eventually collared the bag-carrying
Fernando and conducted an immediate search on the bag. The search led
to the discovery of two sachets and one small plastic bag containing
suspicious-looking crystalline substance and drug paraphernalia, among
other items.
Thereafter, the police team brought Fernando to the Ramos police
station and a request was immediately made for the examination of the
seized items. After laboratory examination, the white crystalline
substance contained in the sachets was found positive for shabu.
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possession of the bagwill not save the day for him. First, his assertion
on what the bag contained is belied by the Joint Affidavit18 of the three
apprehending officers. It was stated under paragraph 5 of their joint
affidavit that the items found in the bag had been duly inventoried. The
items enumerated clearly did not include any wallet or drivers license of
Cortez. Since said joint affidavit was used in the inquest to indict
Fernando and Cortez, the inventoried items would have included the
license and wallet adverted to, the search of the bag conducted in the
police station having been made in the presence of the barangay captain
of Poblacion Norte.
Second, it bears to stress that Fernando was indicted for illegal
possession of dangerous drugs. In the prosecution of this offense, the
ownership of the bag where the shabu and drug paraphernalia were
found is really inconsequential. The elements necessary for the
prosecution of illegal possession of dangerous drugs are: (1) the accused
is in possession of an item or object which is identified to be a prohibited
drug; (2) such possession is not authorized by law; and (3) the accused
freely and consciously possessed the said drug.19 Elucidating on the
nature of this offense, the Court in People v. Tira wrote:
x x x This crime is mala prohibita, and, as such, criminal intent is not an
essential element. However, the prosecution must prove that the
accused had the intent to possess (animus posidendi) the drugs.
Possession, under the law, includes not only actual possession, but also
constructive possession. Actual possession exists when the drug is in
the immediate physical possession or control of the accused. On the
other hand, constructive possession exists when the drug is under the
dominion and control of the accused or when he has the right to exercise
dominion and control over the place where it is found. Exclusive
possession or control is not necessary. The accused cannot avoid
conviction if his right to exercise control and dominion over the place
where the contraband is located, is shared with another.20 (Emphasis
ours.)
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Without a trace of equivocation, the RTC and later the CA held that the
prosecution had discharged the burden of proving all the elements of the
crime charged. Since Fernando was caught carrying the incriminating
bag after the police had been tipped off of drug pushing in the target
area, any suggestion that he was not in actual possession or control of
the prohibited drug hidden in the area would be puny. Thus, ownership
of the bag is truly inconsequential.
We emphasize at this juncture that in no instance did Fernando intimate
to the trial court that there were lapses in the safekeeping of the seized
items that affected their integrity and evidentiary value. He, thus,
veritably admits that the crystalline substance in the sachets found in his
bag was the same substance sent for laboratory examination and there
positively determined to be shabu and eventually presented in evidence
in court as part of the corpus delicti. In other words, Fernando, before the
RTC and the CA, opted not to make an issue of whether the chain of
custody of the drugs subject of this case has been broken. This
disposition on the part of Fernando is deducible from the August 18,
2005 Order21 of the trial court, pertinently saying, "[The] Acting
Provincial Prosecutor x x x and Atty. Emmanuel Abellera, counsel de
officio of the accused manifested that the chain of custody of the
searched illegal drug or shabu is admitted."
As a mode of authenticating evidence, the chain of custody rule requires
that the presentation of the seized prohibited drugs as an exhibit be
preceded by evidence sufficient to support a finding that the matter in
question is what the proponent claims it to be.22 This would ideally cover
the testimony about every link in the chain, from seizure of the
prohibited drug up to the time it is offered in evidence, in such a way
that everyone who touched the exhibit would describe how and from
whom it was received, to include, as much as possible, a description of
the condition in which it was delivered to the next link in the chain.23
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xxxx
Q And they were seated under what kind of tree?
A The place sir is under a santol tree, they were there, and we
noticed that they ran away when they saw us.
10
People v. Pateo, G.R. No. 156786, June 3, 2004, 430 SCRA 609, 615.
11
A Yes sir.
A Yes, sir.
Q Where did you go?
A We received a call and we went to Poblacion Norte, Ramos,
Tarlac.
Q And what did you do with him when you were able to chase
him?
A We searched the bag.
Q What happened?
Q And what did you find out?
A We reached someone seated under the santol tree.
A Shabu and shabu paraphernalia.
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that it had been actually divided into southern and nmihern portions.
Instead, they argued that the Extrajudicial Partition mentioned only the
division of the subject property "into two and share and share alike." In
effect, they argued the existence of a co-owenrship, contrary to their
original position. The Dimaguilas further argued that the Bilihan did not
specify the metes and bounds of the property sold, in violation of Article
1458 of the Civil Code. Even assuming that such had been specified, they
averred that the sale of a definite portion of a property owned in
common was void since a co-owner could only sell his undivided share
in the property.
During the trial, Spouses Monteiro presented Pedrito Adrieta, brother of
Sonia Monteiro (Sonia), who testified that Perfecto was his grandfather
and that at the time of Perfecto's death, he had two properties, one of
which was the subject property in Liliw, Laguna, which went to his
children, Esperanza, Leonardo and Pedro. Pedro was survived by his
children Pedrito, Theresita, Francisco, and Luis, who, in turn, sold their
rights over the subject property to Sonia.
Sonia testified that she was approached by Pedro's son, Francisco, and
was asked if she was interested in purchasing Pedro's 1/3 share of the
southern portion of the Bahay na Sato, and that he showed her a deed of
extrajudicial partition executed by and between Perfecto and Vitaliano,
as well as the tax declaration of the property to prove that the property
had already been partitioned between the two brothers.
Engineer Baltazar F. Mesina testified that he was the geodetic engineer
hired by Spouses Monteiro to survey the property in Liliw, and
recounted that he checked the boundary of the subject property,
subdivided the lot into two and came up with a survey plan.
Crisostomo Arves, an employee from the Office of the Municipal
Assessor, presented a certified true copy of the cadastral map of Liliw
and a list of claimants/owners.
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SO ORDERED.6
The RTC found that although the extrajudicial partition merely divided
the property into two share and share alike, evidence aliunde was
appreciated to show that there was an actual division of the property
into south and north between Perfecto and Vitaliano, and that such
partition was observed and honored by their heirs. These pieces of
evidence were the cadastral map of Liliw7 and a corresponding list of
claimants, which showed that the subject property had long been
registered as Lot 876 (northern-half), claimed by Buenaventura
Dimaguila (Buenaventura), an heir of Vitaliano, and Lot 877 (southernhalf), claimed by Perfecto.
The RTC held that the manner of partition was admitted by the
Dimaguilas themselves in their original answer. It gave no credence to
the claim of Asuncion that such admission was an error of their fonner
counsel and that she was unaware of the contents of their original
answer. It noted that the Dimaguilas had strongly maintained their
theory of partition from 1992 when the complaint was first filed, and
only changed their defense in 2001 when Spouses Monteiro filed their
amended complaint. It keenly observed that it was precisely their
admission which propelled Spouses Monteiro to amend their complaint
from one of partition to recovery of possession. Thus, the RTC concluded
that there was indeed a partition of the subject property into southernhalf and northern-half portions between Perfecto and Vitaliano and that
the Dimaguilas were estopped from denying the same.
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assail the sale between Spouses Monteiro and the heirs of Pedro because
it pe1iained to the southern-half of the property to which they had no
claim.
The CA likewise found sufficient basis for the award of rentals as
compensatory damages since Spouses Monteiro were wrongfully
deprived of possession of the 1/3 portion of the southern-half of the
subject property. It also upheld the award of attorney's fees and
litigation expenses by the RTC, considering that Spouses Monteiro were
compelled to litigate and incur expenses to protect their rights and
interest.
In its assailed March 5, 2012 Resolution, the CA denied the petitioners'
motion for reconsideration for lack of merit.
Hence, this petition.
ASSIGNMENT OF ERRORS
I
THE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THERE
WAS AN ACTUAL PARTITION OF THE PROPERTY COVERED BY TAX
DECLARATION NO. 1453.
II
THE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE 1/3
PORTION OF THE SOUTHERN HALF OF THE PROPERTY WAS SOLD TO
THE RESPONDENTS.
III
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partition can only be made by all co-owners, and allowing the admission
is tantamount to effecting partition by only some co-owners. Spouses
Monteiro themselves, in their original complaint, made an admission
that they were co-owners of the property and asserted that there was no
partition. The evidence aliunde considered by the RTC, consisting of the
cadastral map and the list of claimants, were timely objected to during
the trial as hearsay and a violation of the best evidence rule.
The petitioners reiterate that the Bilihan should not have been admitted
into evidence because it lacked the documentary stamp tax required by
Section 201 of the NIRC, providing that no document shall be admitted in
evidence until the requisite stamps have been affixed thereto. They
argue that the ruling of petitioners' lack of personality to assail the deed
of sale is different from the issue of the deed of sale's admissibility as
evidence. They conclude that considering that no documentary stamp
was ever affixed on the deed of sale, such should never have been
admitted into evidence and consequently, should not have been relied
upon by the lower courts to prove the sale of 1/3 of the southern
portion; and that considering that the Bilihan is inadmissible as
evidence, the respondent spouses have no basis for their claim to the
subject 1/3 portion of the southern-half of the property. Thus, they insist
that the lower courts erred in awarding to Spouses Monteiro the
possession of the subject prope1iy, the rentals, attorney's fees and
litigation expenses, and in failing to rule on their counterclaim for
demolition of improvements and payment of damages.
The assignment of errors boils down to two main issues:
I. Whether there was a pa1iition of the subject property; and
2. Whether the 1/3 portion of the southern-half of the subject
property was sold to the respondent spouses.
Ruling of the Court
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Section 418 of Rule 129 of the Rules of Court provides that an admission
made by a pa1iy in the course of the proceedings in the same case does
not require proof, and may be contradicted only by showing that it was
made through palpable mistake. The petitioners argue that such
admission was the palpable mistake of their former counsel in his rush
to file the answer, a copy of which was not provided to them. Petitioner
Asuncion testified:
Q So, why was that allegations (sic) made in the Answer?
A May be, (sic) in his rush to file the Answer, Atty. Paredes filed the same
without giving us a copy ...19
This contention is unacceptable. It is a purely self-serving claim
unsupported by any iota of evidence. Bare allegations, unsubstantiated
by evidence, are not equivalent to proof.20 Furthermore, the Court notes
that this position was adopted by the petitioners only almost eight (8)
years after their original answer was filed, in response to the amended
complaint of the respondent spouses. In their original answer to the
complaint for partition, their claim that there was already a partition
into northern-half and southern-half portions, was the very essence of
their defense. It was precisely this admission which moved the
respondent spouses to amend their complaint. The petitioners cannot
now insist that the very foundation of their original defense was a
palpable mistake.
Article 143121 of the Civil Code provides that through estoppel, an
admission is rendered conclusive upon the person making it, and cannot
be denied or disproved as against the person relying thereon. The
respondent spouses had clearly relied on the petitioners' admission and
so amended their original complaint for partition to one for recovery of
possession of a portion of the subject property. Thus, the petitioners are
now estopped from denying or attempting to prove that there was no
partition of the property.
Law __ Evidence
Prof. Avena
3. JUDICIAL ADMISSIONS
On August 29, 1994, the petitioners filed a motion for the production
and/or inspection of documents,30 praying that Spouses Monteiro be
ordered to produce the deed of sale, which they cited as the source of
their rights as co-owners. On November 20, 1995, Spouses Monteiro
submitted their compliance,31 furnishing the RTC and the petitioners
with a copy32 of the Bilihan. On January 3, 1996, the petitioners filed a
notice of consignation,33manifesting that they had attempted to exercise
their right of redemption as co-owners of the 1/3 portion of the
southern half of the property under Article 162334 of the Civil Code by
sending and tendering payment of redemption to Spouses Monteiro,
which was, however, returned.
By filing the notice of consignation and tendering their payment for the
redemption of the 1/3 portion of the southern-half of the property, the
petitioners, in effect, admitted the existence, due execution and validity
of the Bilihan. Consequently, they are now estopped from questioning its
admissiblity in evidence for relying on such for their right of redemption.
Additionally, the Court notes that the copy35 of the Bilihan which was
originally submitted by Spouses Monteiro with its compliance filed on
November 20, 1995, does in fact bear a documentary stamp tax. It could
only mean that the documentary stamp tax on the sale was properly
paid. The Bilihan was, therefore, properly admitted into evidence and
considered by the RTC.
In any case, as correctly held by the lower cou1is, the petitioners, as
heirs of Vitaliano, who inherited the northern-half po1iion of the subject
property, do not possess the necessary personality to assail the sale of
the southern-half portion between Spouses Monteiro and the heirs of
Pedro.1wphi1 They are not real parties-in-interest who stand to be
benefited or injured by the sale of the 1/3 portion of the southern-half
over which they have absolutely no right. As correctly ruled by the
courts below, only fellow co-owners have the personality to assail the
sale, namely, the heirs of Pedro's siblings, Esperanza and Leandro. They
have, however, expressly aquiesced to the sale and waived their right to
Law __ Evidence
Prof. Avena
3. JUDICIAL ADMISSIONS
ROBERTO A. ABAD
Associate Justice
WE CONCUR:
Footnotes
Law __ Evidence
Prof. Avena
3. JUDICIAL ADMISSIONS
17
Id. at 44-45.
Id. at 144-157.
Id. at 315-328.
19
20
21
22
10
11
12
18
Section 3. Original document must be produced; exceptions. When the subject of inquiry is the contents of a document. no
evidence shall be admissible other than the original document
itself. except in the following cases:
xxx
(d) When the original is a public record in the custody ofa public
officer or is recorded in a public office.
Section 7. Evidence admissible when original document is a
public record. - When the original or document is in the custody
of public officer or is recorded in a public office. its contents may
be proved by a certified copy issued by the public officer in
custody thereof.
23
15
Law __ Evidence
Prof. Avena
3. JUDICIAL ADMISSIONS
Id. at 113-115.
36
Id. at 303-304.
37
25
27
28
29
30
Id. at 75-76.
31
Id. at 111.
32
Id. at 112.