Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 102704 March 10, 1993
PEOPLE OF THE PHILIPPINES,
plaintiff-appellee,
vs.
CORDENCIO CHATTO alias "DENDEN," SATURNINO DAGAYANON, AND SIX (6) OTHER JOHN DOES, accused.
CORDENCIO CHATTO, accused-appellant.
The Solicitor General for plaintiff-appellee.
Conrado H. Edig for accused-appellant.
NOCON, J.:
Accused-appellant Cordencio Chatto, together with Saturnino Dagayanon and six (6) John Does, were charged with Murder before Branch 1 of the Regional Trial Court in Tagum, Davao, under an information which reads:
That on or about April 30, 1985, in the Municipality of New Corella, Province of Davao, Philippines, and within the jurisdiction of this Honorable Court, accused Cordencio Chatto and Saturnino Dagayanon, conspiring, confederating and mutually helping with six (6) other John Does, who are at large, with treachery and evident premeditation, with intent to kill, armed with hunting knives and a gun, did then and there willfully, unlawfully and feloniously attack, assault, hogtie, stab and shoot one Arnulfo Hinay, thereby inflicting upon him wounds which caused his death, and further causing actual, moral and compensatory damages to the heirs of the victim.
1
Upon arraignment, appellant and his co-accused Saturnino Dagayanon pleaded not guilty to the crime charged against them.
However, after trial, the lower court found both of them guilty of the crime charged in a decision, the dispositive portion of which reads:
WHEREFORE, premises considered, the guilt of the accused pursuant to Article 248 of the Revised Penal Code of the crime of Murder, having proven beyond reasonable doubt, hereby sentenced CORDENCIO CHATTO alias "Denden", and SATURNINO DAGAYANON to Reclusion Perpetua to be served at the National Penitentiary at Muntinlupa with the accessory penalties of the law, and to indemnify P30,000.000 jointly and severally, the heirs of the deceased Arnulfo Hinay.
2
Only the accused-appellant Cordencio Chatto appealed.
The facts of the case as synthesized by the lower court are as follows:
Prosecution presented Servillena Hinay who testified that she is the spouse of the deceased Arnulfo Hinay. On 30 April 1985 around 1:30 P.M. while preparing food for the fiesta the following day, eight (8) armed men entered her house, asked for her husband. She told them he is in the comfort room. She was ordered to call him, which she complied. Shortly, Arnulfo came and was ordered by the armed men to go with them. Chatto asked her for a rope and she gave it to them. Upon receiving the rope, he pushed her husband to go with them, and his companions followed. She became suspicious of their intention, so she went with them. The armed men prevented her, but she insisted until they reached at their coffee plantation around 100 meters from her house. Upon reaching the place they ordered her husband to kneel and his hands were tied at the back by Saturnino Dagayanon. Seeing her husband in such situation she embraced him and cried, inquiring from them what is his fault. No answer. They shot her husband at the head, and while he fell to the ground and others stabbed him with their bayonets. After this execution the eight (8) assailants left from the scene of the crime. Her husband died (Exh. A, A-1) of shock, hemorrhage, and gunshot wound at the head.
During Servillena's testimonies on direct examination, there were eight (8) accused in different cases scheduled for the day, who were sitting on a bench around three (3) meters from the witness stand, placed at the right side, awaiting for their turn. They sat beside each other, some were bent a little forward while others leaned backward.
When the prosecutor asked her to identify the accused, Cordencio Chatto, she counted from the rightmost person who was sitting and answered that, "No. 6". Prosecutor Aventuredo immediately told her to tap the shoulder of the accused and she did touch the shoulder of Chatto. She also identified in Court co-accused Saturnino Dagayanon.
This met the vehement objection from the defense counsel, because the person whom, she identified as the No. 6 from among the accused sitting, when asked for his name, answered Leo Paican, who is the accused in another criminal case.
Defense pointed out that Servillena Hinay executed her affidavit only on 26 February 1990, when the incident occurred on 30 April 1985.
The evidence adduced shows that she reported the crime committed to New Corella, Davao police station which was blottered and also about the death of her husband. Her Barangay, San Jose, is about five (5) kilometers away from the poblacion of New Corella. It appears and explains that sometime on 26 February 1990 she was called by the police authorities, and when she was at the municipal jail, she saw accused "Denden" (Chatto), the one who shot her husband. She executed her affidavit Exh. I (Dagayanon) at the police station.
She also positively identified Dagayanon as among the eight (8) assailants and he was the one who tied her husband. This she told the police and that even before 30 April 1985, she knew Dagayanon because their barrios are neighbors.
After the prosecution rested its case, the defense filed a demurrer to evidence
3 anchored on lack of proper identity of the accused-appellant, which was, however, denied. 4
Instead of going to trial, the counsel for the defense moved to submit the case for decision and waived their presentation of evidence. As a result, both accused were convicted of the offense charged.
Accused-appellant assails the decision of the lower court and assigned as sole error the appreciation of the testimony of the wife of the victim, Servillana Hinay as credible. Appellant alleges that Servillana Hinay did not identify him with certainty during the trial and hence, her testimony is insufficient to convict. Not only is there a flaw in appellants' identification but Servillana's attitude of smiling or laughing while testifying affected her credibility.
We do not agree.
Thus, a review of Servillana Hinay's testimony shows otherwise.
Q Who is that Denden you are referring to?
A. Denden Chatto, sir.
Q If he is in court can you point to him?
A The man wearing a green T-shirt. (Witness pointing to a person who answered that his name is Cordencio Chatto).
COURT:
(To the witness)
Let's see. There are number of persons sitting there.
Q Starting from your left what number is he?
A The sixth man who is sitting on the bench. (Witness pointing to the sixth man).
A Alright, just to be sure you come near.
(At this juncture, the witness is stepping down from the witness stand and went near the bench where the detained persons were sitting).
ATTY. EDIG:
She already pointed the sixth man.
We wish to make of record that the witness pointed to and identified as Denden the person, number six from the left.
PROSECUTION:
There is already an answer, Your Honor.
ATTY. MARANIAN:
We would like to add that manifestation before she answered six she counted one by one beginning from the left side to the right.
PROSECUTOR:
It is clear, Your Honor please, that there is a fellow who could possibly not be seen by the witness because the one at the center purposely evaded and wanted to hide at the back, Your Honor.
ATTY. EDIG:
No, the witness counted.
ATTY. MARANIAN:
In fact, Your Honor, the witness stood up in order to see the person sitting on the bench.
COURT:
Q So, who is the number six there?
A Seven.
(To the witness)
I want you to be very clear and specific. This involves the liberty of a person and don't be laughing here.
(The sixth person answered that his name is Leo Paican).
Q Alright, the one that was tapped by the shoulder, by the witness?
A (Witness pointing to a person who when asked answered that his name is Cordencio Chatto)
. 5
Servillana Hinay was able to make a first and accurate identification of the accused-appellant wherein she mentioned of a man wearing a green T-shirt. The man when asked of his name replied. Cordencio Chatto.
The Court made a follow-up on her identification and this was where the confusion began. The witness explained her error in her testimony, thus
Q In fact when you were asked by the Honorable Presiding Judge to pinpoint the accused by counting from the left of the persons seated on the bench reserved for the accused you pointed to as Denden the person seated on the sixth person from the left, is that right?
A Because I have difficulty in counting, sir.
6
Accused-appellant further contends that his identification by Servillana before the filing of the complaint was improper and irregular or at most as the records will show there was no identification at all. If ever there was, it was at the instance and upon insinuation by the police. The foregoing contention according to accused-appellant can be gleaned from Servillana's testimony.
Thus
Q Before April 30, 1985 you have not known nor have seen accused Cordencio Chatto, is that correct?
A Yes.
Q You have not known any person by the name of Denden?
A He was already in the municipal hall where I came to know him.
Q That was his . . . you came to know in the municipal hall about the person whose nickname is Denden when you executed this affidavit, that was on February 26, 1990, is that correct?
A Yes.
Q In fact you were called by the police?
A Yes.
Q And the police asked you to sign a certain affidavit?
A Yes.
Q The nickname Denden and the name Cordencio Chatto was supplied by the police?
A Yes, I know him having the name of Denden.
Q My question is, you have known him Denden it was an information given to you by the police, is that correct?
A Yes.
Q When you went to the police station you were asked immediately to file a case against a certain person who was then detained already in the municipal jail, is that right?
A Yes, I was told.
Q And it was at the instance of the police that you did file and your affidavit was prepared by them, is that right?
A Yes
7
xxx xxx xxx
Q Now, in my previous question you answered that the name Denden and Cordencio Chatto was for the first time mentioned to you on February 26, 1990 when you went to the police station and asked to execute an affidavit, do you remember that?
A I know him because I saw him in the municipal hall.
Q That was February of 1990 that you saw the accused in the municipal jail?
A Yes.
Q That was the first time that you saw the accused, is that correct?
A Yes.
8
We do not agree with accused-appellant's contention that the above testimony of Servillana taken out of context with the rest of her testimony shows improper or irregular identification of said accused.
The above testimony of Servillana Hinay was given on cross-examination. All the factual circumstances cited in the exchange were spewed out by the cross-examiner. The witness who testified, the victim's wife, is just a simple barrio woman, probably with limited education. Thus, her answers during cross-examination was confined to her monosyllabic "yes."
The lower court thus said:
Nevertheless, despite the rigid cross-examinations, and inspite of some minor flaws in some details of her answer, the overall analysis of her testimonies, points firmly that among the eight persons who entered her house on 30 April 1985, brought her husband out, tied, shot, and stabbed him were Cordencio Chatto and Saturnino Dagayanon.
While there maybe some minor flaws in her testimonies, it does not render it insufficient. The most candid witness may make mistake sometimes but such honest lapses do not necessarily impair their credibility. The testimony of a witness must be considered and calibrated in its entirety and not by truncated or isolated messages.
9 (People vs. Natan, G.R. No. 86640, 25 Jan. 1991)
What Servillana Hinay really wanted to say on cross-examination is that she saw accused-appellant for the second time during the confrontation at the police station. While she first saw the appellant when he and his companions entered their house, took her husband, tied his hands, shot and bayoneted him, she came to know his name only at the police station. There is nothing in her testimony that would make Us conclude that what she meant was, she saw the accused-appellant for the first time at the police station.
Well settled is the rule that appellate courts will generally not disturb the factual findings of the trial court since the latter are in a better position to weigh conflicting testimonies, having heard the witnesses themselves and observed their deportment and manner of testifying, unless it is found that the trial courts have overlooked certain facts of substance and value that, if considered, might affect the result,
10 which We do not find in the case at bar.
Accused-appellant further contends that the affidavit of Servillana Hinay was executed on February 26, 1990 while the incident happened April 30, 1985, hence, lacks credibility and reliability.
As aptly found by the lower court:
The span of time from 1985 to February 26, 1990 when Servillana executed her affidavit narrating about the heinous crime could be due to her fear, that the eight armed persons could just be marauding her barangay and the vicinities.
With their firearms and the eight persons in the group who committed the crime could not be taken lightly especially in the rural areas where there is no protection of their safety liquidation squad, retribution or rub-out is not farfetched. The present situation becomes of public knowledge, that life now is easily snap out by and through the presence of armed men marauding in the countryside and even in towns and urban areas.
This abnormal situation, and the propensity of armed men crisscrossing the barangays creates fear and even nervous wreck to some are present in the minds of the people.
Servillana's ordeal, an eyewitness to the execution of her husband in utter helplessness and despair in the prevailing circumstances, that affects the peace and order condition of the community logically explains the delay in executing her sworn statement.
The delay does not prove negatively, that the accused did not commit the crime, instead it bolstered her redress for grievances against the assailants, now that the police came to her aid giving her the opportunity to identify them in jail.
11
WHEREFORE, there being no reversible error in the appealed decision, the same is hereby AFFIRMED save the modification that the indemnity to be paid to the heirs of the deceased be increased to P50,000.00.
12
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Campos, Jr., JJ., concur.
#
Footnotes
1 Records, p. 1.
2 Records, pp. 57-58.
3 Records, p. 43.
4 Records, p. 46.
5 T.S.N., December 5, 1990. pp. 12-15.
6 Id., at pp. 23-24.
7 Id., at pp. 20-21.
8 Id., at pp. 25-26.
9 Records. p. 56.
10 People vs. Tismo, 204 SCRA 535 (1991).
11 Rollo. pp. 30-31.
12 People vs. Sison, 189 SCRA 643.
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}106982_03_93_footnotes>mainG.R. No. 106982 March 11, 1993
SYNDICATED MEDIA ACCESS CORP., ET AL. vs. COURT OF APPEALS, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 106982 March 11, 1993
SYNDICATED MEDIA ACCESS CORPORATION and WILLIAM M. ESPOSO, petitioners,
vs.
COURT OF APPEALS, BOARD OF ADMINISTRATORS OF RADIO PHILIPPINES NETWORK, INC., RONALDO V. PUNO, QUINTIN PASTRANA, MELVIN MENDOZA, BENITO PADILLA, GERMAN GONZALES, SR., and BENITO CATINDIG, respondents.
Atienza, Tabora, Del Rosario & Castillo for petitioners.
Sumulong, Sumulong, Paras and Abano for private respondents.
R E S O L U T I O N
BELLOSILLO, J.:
This Petition for Certiorari with prayer for the issuance of a temporary restraining order assails the Order of 8 September 1992 of respondent Court of Appeals which enjoined herein petitioners and all persons acting in their behalf from enforcing the Order of 10 August 1992 of Branch 138 of the Regional Trial Court of Makati.
1
On 8 April 1986, then President Aquino issued E.O. No. 11 creating the Board of Administrators of Radio Philippines Network, Inc. (RPN-9), to manage and operate the business concerns, functions and affairs of RPN-9, have custody of its funds and assets subject to the control and supervision of the PCGG, and preserve, maintain and operate its assets.
2
On 7 November 1992, petitioner Syndicated Media Access Corporation (SMAC), represented by its President and Chairman of the Board, herein petitioner William M. Esposo, entered into a management agreement with respondent Board for a period of 27 months commencing from 1 October 1990 to 31 December 1992. This period was subsequently extended up to 31 December 1993.
3
On 14 July 1992, herein private respondents Ronaldo V. Puno, Quintin Pastrana, Melvin Mendoza, Benito Padilla, German Gonzales, Sr., and Benito Catindig were appointed as new members of respondent Board.
4
On 21 July 1992, petitioners SMAC and Esposo instituted an action for damages and injunction against private respondents before the Regional Trial Court of Makati, docketed as Civil Case No. 92-2022. In their Complaint, SMAC and Esposo averred that private respondents "threaten(ed) and as a matter of fact (have) taken definite steps to commit a breach of the agreement particularly by replacing plaintiff William Esposo (herein petitioner)
as President of RPN-9 in total disregard and violation" of the management contract.
5 Petitioners therefore asked the court to enjoin respondent Board from replacing Esposo as President of RPN-9.
The trial court issued a temporary restraining order and set for hearing the prayer for preliminary injunction.
On 29 July 1992, private respondents were restrained by the Regional Trial Court of Quezon City, Branch 102, in Civil Case No. Q-92-12878 from "further enforcing and implementing the Management Agreement entered into by the . . . BOA with . . . SMAC until further orders from the Court."
6
On 10 August 1992, the Makati Court issued a Writ of Preliminary Injunction prohibiting private respondents from "further taking steps to replace William Esposo as President of RPN-9 and other officers who are nominees of plaintiff SMAC as provided for in the Management Agreement and from taking over the management of RPN-9 from plaintiffs, or otherwise interfering in the exercise by the plaintiffs of the functions delegated to them under the Agreement."
7 This, despite knowledge that the Quezon City Court had enjoined private respondents from implementing the management contract.
On 14 August 1992, private respondents elevated the aforesaid order granting preliminary injunction to the Court of Appeals by way of a Petition for Certiorari. They questioned the right of petitioners to the injunctive relief.
On 19 August 1992, respondent Court of Appeals issued a temporary restraining order enjoining the Makati Court from enforcing its Order of 10 August 1992. On 25 August 1992, oral arguments by the parties were heard.
On 8 September 1992, the appellate court enjoined petitioners and all other persons acting in their behalf from "executing and enforcing the assailed order dated August 10, 1992".
8 Hence, the filing of the instant petition.
The only issue for consideration is whether or not petitioners are entitled to the injunctive relief prayed for.
It is well-settled that to be entitled to an injunctive writ, a party must show that: (1) the invasion of right sought to be protected is material and substantial; (2) the right of complainant is clear and unmistakable; and, (3) there is an urgent and paramount necessity for the writ to prevent serious damage.
9
Unfortunately, petitioners have failed to show that there is an urgent and paramount necessity for the issuance of a Writ of Preliminary Injunction.
The action for damages and injunction was founded on newspaper accounts whereby respondent Puno reportedly announced that he would "personally replace the incumbent President of RPN-9, plaintiff William M. Esposo, a nominee of SMAC to the position."
10 However, a perusal of the newspaper accounts attached to the petition as Annexes "D" and "E" shows that respondent Puno was merely named as Chairman and Acting President of the RPN-9 Task Force which is totally distinct and separate from the position of President of RPN-9. 11 In fact, petitioner Esposo remains to this date the President of RPN-9. He was never replaced, hence, there was then no basis for the grant of injunctive relief.
Thus, while the evidence to be submitted during the hearing on the motion for preliminary injunction need not be conclusive or complete, the evidence needed being only a "sampling" and intended merely to give the court an idea of the justification for the preliminary injunction pending the decision of the case on the merits,
12 still, said evidence must rest on solid grounds and not on mere hearsay or unfounded fears.
Petitioners further question the new set of guidelines for the management of RPN-9 issued by respondent Board on 22 July 1992. They claim that this violates the terms of the management contract. Their contention is anchored on the provision in the Agreement which limits the power of respondent Board to "(f)ormulate, review, modify, amend or supersede corporate policies, guidelines, rules and regulations" only to those which are "not inconsistent with Executive Order No. 11 or existing agreements."
13
It is the view of petitioners that the management contract entered into by the parties herein is one of the "existing agreements" contemplated by them, and that since the parties agreed that SMAC shall "take charge of the day to day operations of all aspects of the radio and television business operations of
RPN,"
14 the new guidelines issued by respondent Board prevented them from fully exercising the functions which were delegated to them under the management contract.
The interpretation of petitioners is strained. If the parties intended to limit the power of respondent Board to issue policies and guidelines to those which are not inconsistent with E.O. No. 11 and "existing agreements," including the instant management agreement, such limitation should have been specifically provided in the agreement. But no such express limitation was drafted into the contract. Instead, the general phrase "existing agreements," was used. And rightly so, for the parties intended that respondent Board should honor all existing agreements entered into by SMAC with other parties in behalf of
RPN-9.
Indeed, the scope of management services of petitioner SMAC was, and is, "subject to the policies, guidelines, rules and regulations now and hereafter promulgated" by respondent Board. The new guidelines of respondent Board received by petitioner Esposo on 22 July 1992 were simply policies "hereafter promulgated," thus, of legal force and effect. It was not an encroachment on petitioners' prerogative to manage the day to day operations of RPN-9. After all, Section 1.1. of the Agreement reads
1.1. Subject to the policies, guidelines, rules and regulations now and hereafter promulgated by the Board of Administrators of RPN, SMAC shall take charge of the day to day operations of all aspects of the radio and television business operations of RPN and perform he following powers and functions, subject to the control and supervision of the Board of Administrators of RPN (emphasis supplied).
A word more. There are actually two (2) cases filed involving the same parties and affecting closely related subject matters, i.e., one in Makati which is the instant case, and the other, in Quezon City. The Makati case pertains to the complaint for damages and injunction filed by petitioners SMAC and Esposo wherein they claim that respondent Board is preventing them from exercising the functions delegated to them under the "Agreement." The case in Quezon City questions the validity of that very "Agreement." Consequently, to avoid varying conclusions, these cases must be consolidated and jointly tried in Makati where the earlier case was filed, conformably with established procedure.
ACCORDINGLY, the Court RESOLVES to DENY DUE COURSE to the Petition for Review on Certiorari. The Writ of Preliminary Injunction heretofore issued by the Court of Appeals in its Order of 8 September 1992 is MADE PERMANENT.
Let this case be remanded to the Regional Trial Court of Makati for further proceedings.
Cost against petitioners.
SO ORDERED.
Cruz, Griño-Aquino and Quiason, JJ., concur.
#
Footnotes
1 Rollo, pp. 49-50.
2 Comment, p. 3; Rollo, p. 155.
3 Petition, Annex "A"; Rollo. p. 44.
4 Comment, p. 8; Rollo. p. 160.
5 Petition, Annex "G"; Rollo, p. 67.
6 Comment, p. 9; Rollo, p. 161.
7 Comment, Annex "A", p. 4.
8 See Note 1, p. 49.
9 Dionisio v. Ortiz, G.R. No. 95738, 10 December 1991, 204 SCRA 745.
10 Rollo, p. 67.
11 Comment, p. 15; Rollo, p. 167.
12 Olalia vs. Hizon, G.R. No. 87913, 6 May 1991, 196 SCRA 665.
13 Petition, Annex "C", p. 6; Rollo, p. 56.
14 Petition, Annex "C", p. 2; Rollo, p. 52.
#
$ + GRSI ® Copyrightregno N94-027
A.M. No. RTJ-91-666 March 12, 1993
SPOUSES ANTONIO F. SABADO ET AL. vs. NOVATO T. CAJIGAL
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. RTJ-91-666 March 12, 1993
SPOUSES ANTONIO AND DONATA F. SABADO, petitioners,
vs.
JUDGE NOVATO T. CAJIGAL, respondent.
Merianthe Pacita Manzano Zuraek for complainants.
R E S O L U T I O N
PER CURIAM:
The letter-complaint of the Spouses Antonio and Donata Sabado charges respondent Judge Novato T. Cajigal, former Presiding Judge, Regional Trial Court, Branch 27 of Nueva Vizcaya (now assigned to Branch IX, RTC at Bacoor, Cavite), with gross neglect of duty for failing to decide since 1984 Civil Case No. 2229 of the Regional Trial Court, Branch 27, Bayombong, Nueva Vizcaya, entitled, "Donata F. Sabado, et al. vs. Victorio Mejia, et al." for "Quieting of Title or Recovery of Possession with Damages," the trial of which was concluded in August 1984.
On December 5, 1991, the Court ordered respondent Judge to comment on the complaint but he neglected to do so despite due notice.
Consequently, the Court, in an en banc resolution dated March 31, 1992, directed him to show cause why disciplinary action should not be taken against him for ignoring the resolution of December 5, 1991, and to comply therewith within ten (10) days from notice. On August 27, 1992, this Court ordered respondent Judge to pay a fine of Five Hundred Pesos (P500.00) or suffer imprisonment for five (5) days, for his non-compliance with the resolutions of March 31, 1992. In the same resolution, we referred the administrative matter to Justice Eduardo G. Montenegro of the Court of Appeals for study, report, and recommendation within 90 days from receipt of the records.
The complainants are the plaintiffs in the aforementioned Civil Case No. 2229 of the RTC, Branch 27 of Nueva Vizcaya. On August 30, 1984, respondent Judge issued an Order in said case, requiring the parties to file simultaneous memoranda, after which the case would be considered submitted for decision with or without their memoranda. Despite the submission of the required memoranda, respondent Judge failed to render a decision.
On June 1, 1989, complainants-spouses personally went to see respondent Judge in Bacoor, Cavite (his new station), to inquire about the decision in their case, but were told by respondent Judge that he has to wait for an order from the Supreme Court for him to release the decision. On July 20, 1989, they wrote him another letter requesting him to decide their case. On August 16, 1989, they filed with the RTC in Bayombong, Nueva Vizcaya, a motion for rendition of decision. On February 7, 1990, they wrote Judge Jose Rosales, the new presiding Judge in the RTC at Bayombong, appealing that he intercede with respondent Judge to render a decision. On the same date, the letter was referred by Judge Rosales to the respondent for appropriate action. On September 11, 1990, respondent Judge wrote Deputy Court Administrator Ranjo stating that he is requesting the stenographer to complete her transcription of certain proceedings and that he would render the corresponding decision at the earliest possible time.
Another letter-request for early decision sent to Deputy Court Administrator Ernani Cruz Paño was answered by furnishing the complainants with a copy of Judge Cajigal's reply-letter dated September 11, 1990.
On March 5, 1991, the complainants requested Judge Jose Rosales to require the stenographer mentioned by respondent Judge to complete the transcription of the stenographic notes so that the case can be decided. On March 7, 1991, complainants received from Alejandro Raneses, Jr., OIC Clerk of Court, RTC, Branch 27, Bayombong, Nueva Vizcaya, a letter informing that the records of Civil Case No. 2229 were complete, including the transcripts of stenographic notes, when forwarded to respondent Judge on August 20, 1988. Complainant alleged that respondent Judge gave them the "run-around," claiming that he did not have the transcripts of stenograpic notes necessary to decide the case when, in truth and in fact, he has the transcripts of stenographic notes.
The records were received by Court of Appeals' Justice Eduardo Montenegro on October 19, 1992. On October 20, 1992, a notice was issued requiring the complainants and respondent to appear on November 9, 1992 at 9:00 o'clock in the morning for a preliminary conference and formal investigation to be held on November 10, 11, 12, 13, 16 and 17, 1992, also at 9:00 o'clock in the morning. Respondent Judge received copy of the notice on October 23, 1992, but he did not appear at the preliminary conference nor at any of the hearings.
In the order dated November 9, 1992, resetting the hearing to November 17, 1992, respondent Judge Cajigal was ordered to produce the record, including the evidence (testimonial and documentary), of Civil Case No. 2229 so that it may be determined whether or not there was undue delay in the administration of justice. Copies of this order were sent by special messenger to Judge Cajigal at Branch 9, RTC, Bacoor, Cavite, and to his residence at 63 Pall Mall Street, Fairview, Quezon City. Despite due notice, respondent Judge Novato T. Cajigal failed to appear and produce the record requested by the investigating Justice.
At the hearing, complainants, through counsel, submitted the following evidence in support of their complaint:
(1) Order dated August 30, 1984, issued by respondent Judge in Civil Case No. 2229 admitting in evidence the exhibits for the plaintiffs and the defendants and giving the parties "30 days within which to simultaneously file their respective memorandum after which time, the case shall be considered submitted for decision with or without said memoranda" (Exh. A);
(2) Plaintiffs' memorandum in Civil Case No. 2229, dated November 1, 1984 (Exh. B);
(3) Letter dated June 1, 1989 of complainants to respondent Judge requesting information regarding Civil Case No. 2229 (Exh. C);
(4) Follow-up letter dated July 20, 1989 addressed to respondent Judge Cajigal with submarking (Exh. D);
(5) Motion for rendition of decision, dated August 16, 1989 (Exh. E) with submarking;
(6) 2nd Indorsement dated June 8, 1990, signed by Judge Jose B. Rosales of Branch 27, RTC of Nueva Vizcaya, interceding in behalf of complainant Sabado regarding the early disposition of the case (Exh. F);
(7) Letter from respondent Judge Cajigal to Deputy Court Administrator Juanito Ranjo, dated September 11, 1990. informing that respondent is requesting the stenographer to complete her transcription of certain proceedings had on the case and that considering the present problem pertaining to the transportation of the record, it will take more time for him to completely go over the case "and will render the corresponding decision at the earliest possible time" (Exh. G);
(8) Letter from Judge Ernani Cruz Paño addressed to complainant Antonio Sabado, dated September 26, 1990 (Exh. H),
(9) Certification issued by Mr. Alejandro Raneses, OIC, RTC Nueva Vizcaya, dated July 16, 1990 certifying that the records of Civil Case No. 2229 (Exh. I) were sent to Judge Cajigal on August 20, 1988;
(10) Letter dated March 5, 1992 of respondent Judge Cajigal to Judge Ernani Cruz Paño, Deputy Court Administrator, stating that he will give preferential attention to the case "and will decide the same based on the pertinent record in his possession within thirty (30) days from today despite the very heavy load of cases in this branch" (Exh. J).
Upon the evidence, Justice Montenegro found that respondent Judge failed to decide Civil Case No. 2229 since it was submitted for decision in 1984.
Justice Montenegro further observed that respondent Judge's refusal and failure to comment on the letter-complaint against him, his refusal to attend, despite notice, the investigation to give his side or at least explain why he has failed to decide the case, evince a clear lack of desire exculpate himself and remain in the service.
Failure to decide a case within the required period is not excusable and constitutes gross inefficiency (Longboan vs. Polig, 186 SCRA 557; citing the cases of Ubarra vs. Tecson, 134 SCRA 4; De Leon vs. Castro, 104 SCRA 241; and In re: Judge Jose F. Madara, 104 SCRA 245). Respondent Judge is presumably aware of this ruling of the Court and of Rule 3.01 of Canon 3 of the Code of Judicial Conduct which calls for a Judge to be faithful to the law and maintain professional competence. There is also Rule 3.05 which admonishes all judges to dispose of the court's business promptly and decide crises within the period fixed by law.
Justice Montenegro found respondent Judge guilty of gross inefficiency and grave and serious misconduct in the discharge of his functions.
We agree with those findings of Justice Montenegro. Respondent Judge is guilty of gross inefficiency and neglect of duty, even of his duty to defend himself against the complainants' charge, and prove his fitness to remain on the Bench.
WHEREFORE, as recommended, respondent Judge Novato T. Cajigal is DISMISSED from the service, with forfeiture of his retirement benefits, except accrued leaves already earned, and with prejudice to re-employment in any branch, agency or instrumentality of the Government, including government-owned or controlled corporations. He is ordered to deliver to the Court Administrator the complete records of Civil Case No. 2229 so that the same may be delivered to the Regional Trial Court, Branch 27, at Bayombong, Nueva Vizcaya, for immediate decision.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo, Campos, Jr. and Quiason, JJ., concur.
Bellosillo, J., took no part.
Gutierrez, Jr., J., is on leave.
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}102126_03_93_footnotes>mainG.R. No. 102126 March 12, 1993
ANGELICA LEDESMA vs. IN RE: CIPRIANO PEDROSA
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 102126 March 12, 1993
ANGELICA LEDESMA, petitioner,
vs.
INTESTATE ESTATE OF CIPRIANO PEDROSA represented by Nelson Jimena, Honorable Judge Bethel Katalbas-Moscardon in her capacity as Presiding Judge-Designate, Branch 51, RTC, Bacolod City, respondents.
Hector P. Teodosio of Defensor and Teodocio Law Office for petitioner.
Edmundo G. Manlapao for private respondent.
PADILLA, J.:
This is a special civil action for certiorari under Rule 65 assailing an order dated 24 January 1991 issued by herein respondent presiding judge-designate Bethel Katalbas-Moscardon of the Regional Trial Court of Bacolod City, Branch 51 which considered the supplemental action for partition (after annulment of the marriage) as terminated due to the death of one of the spouses (husband) and the pendency of intestate proceedings over his estate.
Petitioner Angelica Ledesma's marriage to Cipriano Pedrosa was declared a nullity by the Regional Trial Court of Negros Occidental, Branch 51 on 8 February 1984 in Civil Case No. 1446.
1 The dispositive portion of the order annulling the marriage also provided thus:
. . . that the properties acquired by plaintiff Cipriano Pedrosa and defendant Angelica Ledesma at the time they were living together as common-law husband and wife is (sic) owned by them as co-owners to be governed by the provisions on co-ownership of the civil code; that the properties acquired by plaintiff and defendant after their marriage was solemnized on March 25, 1965, which was annulled by this Court in the above-entitled proceeding, forms (sic) part of the conjugal partnership and upon dissolution of the marriage, to be liquidated in accordance with the provision of the civil code.
2
Surprisingly it took some time before the next order implementing the above disposition was issued on 4 May 1989, the pertinent part of which reads:
. . . . It appearing from the records that the court has to verify and determine the correct inventory of the properties of Cipriano Pedrosa and Angelica Ledesma, the parties, including the receiver, through their respective attorneys, are ordered to submit their respective inventory, if one has not been submitted yet, before June 1, 1989. . . . .
3
Pending receipt by the court of the ordered inventory, Cipriano Pedrosa died. A separate petition for the probate of his last will and testament was
filed.
4 Nelson Jimena was named executor and substituted Pedrosa in the partition proceedings (Civil Case No. 1446).
Due to disagreement of the parties on the characterization of the properties, the court in the partition proceedings ordered (30 March 1990) the submission of comments, objections and manifestations on the project of partition submitted by the parties. During a lull in the proceedings, the presiding judge also passed away. On 24 January 1991 the following now-questioned order was issued by the herein respondent presiding-judge designate who took over:
It is informed by Atty. Pio Villoso that insofar as the status of this case is concerned, the plaintiff who has long been dead, was substituted by the administrator, now the plaintiff Nelson Jimena, and Atty. Vicente Sabornay, as the receiver. Furthermore, the judgment as to the annulment of the marriage had already been rendered partially by then Presiding Judge Quirino Abad Santos, Jr., on February 8, 1984. What is being litigated here by the parties affects the property division to dissolve the partnership. However, the plaintiff died and an intestate proceeding is now pending before Branch 43 whereby the said Nelson Jimena was actually the appointed administrator, and who was substituted as plaintiff in this case.
With all these informations, and considering the nature of the action, the Court finds the substitution of the original plaintiff improper, as the defendant herein can pursue her claim over the properties before the intestate proceedings being instituted. Action for intervention in order that the judgment in this particular proceeding can be implemented, can be raised in the intestate Court. Likewise, the appointment of the receiver conflicts with that of the judicial administrator considering that with the filing of the intestate case, the properties of the deceased plaintiff are in custodia legis and this Court losses jurisdiction in determining further the distribution of the properties.
In view of the above, without prejudice to the defendant's right to file as intervenor in the intestate proceedings with the judgment annulling the marriage, the proceedings becomes moot and academic with the pendency of the intestate proceeding before Branch 43. This case is therefore deemed TERMINATED.
5
With the denial of petitioner's motion for reconsideration by the respondent court, this special civil action was initiated.
Petitioner argues that respondent judge reneged in the performance of a lawful duty when she refrained from rendering a decision in the partition case (Civil Case No. 1446) and considered the same closed and terminated, due to the pendency of intestate proceedings over the deceased husband's estate (Sp. Proc. No. 4159).
6 It is likewise erroneous, petitioner contends, to rule that petitioner's remedy is a motion for intervention in said intestate proceedings to implement judgment in the marriage-annulment case, since petitioner has already presented all her evidence in the annulment case to prove which properties acquired during the marriage pertain to her.
The case of Macadangdang vs. Court of Appeals,
7 where a similar issue was involved the husband having died after the legal separation of the spouses had been finally decreed but before the actual liquidation of their community of properties is on point. The Court therein said:
WE do not find merit in petitioner's submission that the questioned decision had not become final and executory since the law explicitly and clearly provides for the dissolution and liquidation of the conjugal partnership of gains or the absolute community of property as among the effects of the final decree of legal separation. Article 106 of the Civil Code thus reads:
Art. 106. The decree of legal separation shall have the following effects:
1) The spouses shall be entitled to live separately from each other, but the marriage bonds shall not be severed;
2) The conjugal partnership of gains or the absolute conjugal community of property shall be dissolved and liquidated, but the offending spouse shall have no right to any share of the profits earned by the partnership or community, without prejudice to the provisions of Article 176;
xxx xxx xxx
The aforequoted provision mandates the dissolution and liquidation of the property regime of the spouses upon finality of the decree of legal separation. Such dissolution and liquidation are necessary consequences of the final decree. This legal effect of the decree of legal separation ipso facto or automatically follows, as an inevitable incident of, the judgment decreeing legal separation for the purpose of determining the share of each spouse in the conjugal assets.
xxx xxx xxx
. . . the decision of the trial court dated January 4, 1973 decreeing the legal separation between then spouses Antonio Macadangdang and Filomena Gaviana Macadangdang had long become final and executory and the division of the conjugal property in a "supplemental decision" is a mere incident of the decree of legal separation.
Since We have ruled on the finality of the judgment decreeing the spouses' legal separation as of January 4, 1973, the remaining issue for Our resolution is the final disposition of their conjugal partnership of gains which partnership, by reason of the final decree, had been automatically dissolved. The law (Article 106, 107 of the Civil Code) clearly spells out the effects of a final decree of legal separation on the conjugal property.
The death on November 30, 1979 of herein petitioner who was declared the guilty spouse by the trial court, before the liquidation of the conjugal property is effected, poses a new problem which can be resolved simply by the application of the rules on intestate succession with respect to the properties of the deceased petitioner.
Thus, the rules on dissolution and liquidation of the conjugal partnership of gains under the aforecited provisions of the Civil Code would be applied effective January 4, 1973 when the decree of legal separation became final. Upon the liquidation and distribution conformably with the law governing the effects of the final decree of legal separation, the law on intestate succession should take over in the disposition of whatever remaining properties heave been allocated to petitioner. This procedure involves details which properly pertain to the lower court.
The properties that may be allocated to the deceased petitioner by virtue of the liquidation of the conjugal assets, shall be distributed in accordance with the laws of intestate succession in Special Proceedings No. 134.
The Macadangdang decision involved legal separation but, with equal reason, the doctrine enunciated therein should be applied to a marriage annulment which is the situation at bar. The respondent presiding judge is directed to decide the partition (liquidation) case (Civil Case No. 1446) within thirty (30) days from receipt of notice of this decision to determine which of the properties of the conjugal partnership should be adjudicated to the husband and the wife. This is but a consequence or incident of its decision rendered in the same case annulling the marriage. Petitioner's letters to the Court indicate that she is seventy (70) years of age and the prolonged action for partition (liquidation) has taken a toll on her resources. Justice and equity demand the disposition of her case with dispatch. Any properties that may be adjudicated to the deceased husband Pedrosa can then be distributed in accordance with his last will and testament in the special proceedings involving his estate (Sp. Proc. No. 4159).
ACCORDINGLY, the respondent Judge's order dated 24 January 1991 considering Civil Case No. 1446 closed and terminated for being moot and academic is REVERSED and SET ASIDE. Respondent Judge or whoever may have succeeded her is ordered to decide said action for partition (liquidation) within thirty (30) days from receipt of this decision.
SO ORDERED.
Narvasa, C.J., Regalado, Nocon and Campos, Jr., JJ., concur.
#
Footnotes
1 Rollo, p. 40.
2 Annex E of petition, Rollo, pp. 40-44.
3 Annex F, Rollo, pp. 45-46.
4 Sp. Proc. No. 4159, RTC of Negros Occidental, Branch 43.
5 Annex I, Rollo, pp. 49-50
6 It would appear that the other case Sp. Proc. No. 4159 is not an intestate but a testate proceeding.
7 G.R. No. L-38287, October 23, 1981, 108 SCRA 314.
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}RTJ_89_329_03_93_footnotes>mainA.M. No. RTJ-89-329 March 17, 1993
RODOLFO T. ALLARDE vs. PEDRO N. LAGGUI, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. RTJ-89-329 March 17, 1993
RODOLFO T. ALLARDE, complainant,
vs.
JUDGE PEDRO N. LAGGUI, RTC, Branch 60, Makati, Metro Manila, respondent.
PADILLA, J.:
A sworn complaint, dated 18 May 1989, was filed by Atty. Rodolfo T. Allarde against respondent Judge Pedro N. Laggui, Regional Trial Court, Branch 60, Makati, for ignorance of the law, gross and manifest partiality amounting to graft, and knowingly rendering an unjust judgment/order.
The complaint, as summarized by then Acting Court Administrator, Atty. Juanito C. Ranjo, alleges substantially as follows:
Complainant alleged the pre-trial proceedings in the case were conducted by the Hon. Job B. Madayag, Branch 145, same court. When no settlement was reached by the parties, they proceeded to present their respective evidence. Upon orders of the court, herein complainant's counsel submitted the Memorandum for the Plaintiff while the defendants' counsel failed to comply with the said order.
Complainant averred that in his Order dated June 22, 1987, the herein respondent Judge set the case for pre-trial, apparently setting aside the pre-trial proceedings already conducted by the Hon. Job B. Madayag. For failure of complainant and his counsel to appear at the scheduled continuation of the pre-trial on September 30, 1987, the respondent Judge, in open court, ordered the dismissal of Civil Case No. 15244. Correspondingly, herein complainant's counsel seasonably filed on October 2, 1987, a Motion to Lift Order of Dismissal which was, however, denied by the respondent Judge in his Order dated March 29, 1988, notwithstanding the justifications submitted for such failure.
Complainant contended that in denying the aforementioned motion, the respondent Judge put an end to a justiciable controversy without resolving the merit of the case.
1
In the Court's resolution, dated 7 June 1990, respondent Judge was required to submit his comment on the complaint within ten (10) days from notice thereof.
In his Comment, dated 24 July 1990, respondent Judge refuted the allegations of the complaint its follows:
He did not issue an Order dated 22 June 1987. The Order setting the
pre-trial for 23 June 1987 was issued on 21 May 1987.
There had been no pre-trial conducted in Branch 145 before Judge Job Madayag as the records of Civil Case No. 15244 (Rodolfo T. Allarde vs. Spouses Romeo Laus and Marcelina Laus) transmitted to Branch 60 from Branch 145, Regional Trial Court, Makati, show that the Answer dated 20 November 1986 (Annex 3 of Comment) was filed only on 21 November 1986, while complainant's Motion to Admit Reply and the Reply were filed on 6 January 1987 (Annexes 4 and 5). The Order granting the Motion and admitting the Reply was issued only on 9 January 1987 (Annex 6).
The proceeding which complainant erroneously claims to be the pre-trial was actually a hearing on complainant's prayer in his complaint for the issuance of a writ of preliminary injunction. The hearings were held on 21 November and 16 December 1986 and 30 January 1987 before Branch 145.
In fact, after one of the defendants, Marcelina Laus, testified on 30 January 1987, counsels for the parties were given thirty (30) days within which to file their simultaneous memoranda. Complainant filed his memorandum dated 15 February 1987 on 17 February 1987. (Annex B to B-8 of Complaint). On the other hand, the defendants filed theirs on 5 March 1987 in support of their opposition to plaintiff's application for the issuance of a writ of preliminary injunction. The evidence adduced by the plaintiff and the defendants before Branch 145 on 21 November, 16 December 1986 and 30 January 1987 were not on the merits of the case. Between 31 January 1987 and up to the time the case was transferred to Branch 60 on 13 May 1987, no proceeding of any kind was held in Branch 145.
Complainant never informed the court, Branch 60, that pre-trial was already terminated in Branch 145. As a matter of fact, he was notified and he knew that all the proceedings before Branch 60 were for pre-trial and trial proper. The Order dated 21 May 1987 clearly stated that the hearing for 23 June 1987 was in connection with the pre-trial conference (Annex 23). The said conference was cancelled and re-set for 22 July 1987 for non-appearance of the plaintiff who appeared not to have received the notice.
At the pre-trial on 22 July 1987, a question of procedure was raised the motion of plaintiff's counsel to declare Romeo Laus as in default for his failure to appear, to which counsel for defendants objected because he (Laus) was not properly summoned as he was in Saudi Arabia on the date summons was allegedly served upon him so that the court ordered that the pre-trial set for said date be cancelled and tentatively re-set for 30 September 1987, and granted defendants fifteen (15) days from 22 July 1987 within which to file their memorandum in support of their opposition to the motion that defendant Romeo Laus be declared as in default and fifteen (15) days from his receipt of a copy of the memorandum within which plaintiff could file his Reply thereto.
The complainant and his counsel did not appear for the hearing on 30 September 1987 despite their receipt of the notice dated 17 September setting the pre-trial on 30 September 1987 and the fact that they also signed on 22 July 1987 the notice given in open court re-setting the hearing to 30 September 1987 (Annex 33). For the non-appearance of plaintiff and his counsel, on 30 September 1987, the complaint was dismissed without prejudice in open court.
From the above comment/explanation of the respondent judge, we are satisfied that his dismissal of Civil Case No. 15244 did not merit or warrant the charges filed against him by the complainant.
A reading and study of the documents attached to the Comment (Annexes 1 to 36) convince us that complainant was in fact confused as to the nature of the proceedings held before Judge Job Madayag of Branch 145, RTC of Makati. The alleged pre-trial conference in Branch 145, as claimed by complainant, was actually a hearing on his prayer for the issuance of a writ of preliminary injunction pending termination of the action.
The record of said hearing is found in the Order of the court doted 29 October 1986, which states:
Acting on the application for issuance of a writ of preliminary injunction and finding the same to be sufficient in form and substance, the Court hereby sets the same for hearing on November 10, 1986 at 9:00 A.M., at which time the defendants are hereby ordered to show cause why the writ prayed for should not be granted.
As to the dismissal of Civil Case No. 15244, we likewise do not believe that respondent judge rendered an unjust judgment/order. Section 2, Rule 20 of the Revised Rules of Court provides as follows:
Sec. 2. Failure to appear at pre-trial conference. A party who fails to appear at a pre-trial conference may be non-suited or considered as in default.
Unquestionably, the trial court has the discretion to declare a party non-suited. Such exercise of discretion will not be interfered with by the appellate courts, absent a showing of grave abuse thereof. At the pre-trial of the aforesaid civil case, both complainant and his counsel did not appear despite notice to both of them in open court and a subsequent written notice sent to them which they also received. We find said dismissal to be in order.
WHEREFORE, the administrative complaint against respondent judge is DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo, Campos, Jr. and Quiason, JJ., concur.
Gutierrez, Jr., J., is on leave.
#
Footnotes
1 Rollo, p. 29.
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}75295_03_93_footnotes>mainG.R. No. 75295 March 17, 1993
PEOPLE OF THE PHIL. vs. ESRAEL AMONDINA, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 75295 March 17, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ESRAEL AMONDINA, AQUILLO CATAYTAY and ROMULO AMANTILLO, accused-appellants.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellants.
CRUZ, J.:
The decision of the trial court is exceedingly long, without any effort to trim the fat and keep it lean. Judges are not stenographers transcribing the testimony of the witnesses word for word. Judges must know how to synthetize, to summarize, to simplify. Their failure to do so is one of the main reasons for the delay in the administration of justice. It also explains the despair of the public over the foot-dragging of many courts and their inability to get to the point and to get there fast.
The 17-page single-spaced decision of the Regional Trial Court of Negros Oriental convicted Esrael Amondina, Aquillo Cataytay and Romulo Amantillo of the murder of Floro Gantalao and sentenced them to reclusion perpetua and a civil indemnity of P30,000.00.
1 It is now on appeal, but not because of its inordinate verbosity although this is a valid ground for distress. The claim is that a proper appreciation of the evidence, especially of the defense, should have led the trial judge to a verdict of acquittal.
The killing occurred at twilight of February 23, 1983, at the townsite of Poblacion, Mabinay, Negros Oriental.
According to Francisco Tangon, he was pasturing his carabao at the time and from where be was be saw the three accused sitting on the side of the road some 36 feet away. He recognized all of them because he had known Amondina since 1969 and Cataytay and Amantillo were his neighbors. When Floro Gantalao arrived, the three men immediately and suddenly attacked him. Amondina swung a pestle at Floro and hit him in the left jaw, sending him sprawling to the ground. Cataytay followed suit by hacking Floro with a long bolo that bloodied and fractured the defenseless man's head. Amantillo then struck Floro in the nape with a piece of wood around 2 feet long as the latter lay wounded and helpless. The three men then fled, as so did Tangon who ran in the opposite direction toward his house. But not before he had drawn their attention and was recognized.
2
Tangon said that later that same night, Amondina came to his house and warned him not to tell anyone about the incident, otherwise he would be killed. Nevertheless, when he woke up at 4:00 o'clock the following morning, he reported the matter to the police, and he and four other men went to the scene of the crime at 5:00 a.m. to retrieve Floro's body. There were already two policemen at the scene, namely, Jessie Mission and Jomie Moreno. Tangon testified that he secretly told Moreno what he had witnessed the night before.
3
The victim's wife, Manolita Gantalao, declared on the stand that on February 23, 1984, at around 6:00 p.m. she went to the Namangyan river to get their carabao and on her way home, espied the three accused. Upon seeing her, they seemed frightened and started running toward the "hagonoy" bushes. When she reached home, she waited for her husband who was supposed to return early because he was going to work as a watchman at the NAPOCOR tower. It was later that night that his lifeless body was found by a search party composed of relatives near the road in the "hagonoy" bushes, where she had earlier seen the three accused.
4
Jomie Moreno, the policeman who investigated the killing in the early morning of February 24, 1984, said that Francisco Tangon approached him then and said that the killers of Gantalao were Amondina, Cataytay and Amantillo. Moreno added that having been informed that somebody had seen drops of blood on the steps of the uninhabited house of Eleuterio Acosta, he proceeded to that place and found a pestle with stains of blood, small stones and "hagonoy" grass sticking to it. Moreno went next to the house of Aquillo Cataytay, whose wife allowed him to take a pair of blood-stained pants hanging on a window beam and one long bolo ("pinuti") which had blood on its handle and on the point of the blade. Finally, at the house of Romulo Amantillo, to which he was also admitted, Moreno recovered a 14-inch machete with blood stains on its handle.
5
The injuries sustained by the victim, as reported by Dr. Herminio
Garcia,
6 who conducted the autopsy, were consistent with the narration by Tangon of the attack upon Gantalao by the three accused with their respective weapons.
The common defense of the three accused was denial and alibi. Cataytay claimed that on February 23, 1984, he worked on his farm in Barangay Namangka and went home at around 5:00 p.m., staying there until the next morning. He was alone because his wife was in Bindoy with her mother.
7 Amondina testified that on that same date he too worked on his farm, which is 1 kilometer from Cataytay's place and 50 yards from the Namangyan river, and went home at 5:00 p.m. to his wife and children. He woke up at 4 o'clock the following morning. 8 Amantillo swore that on February 23, 1984, he was working on his farm, which is 1/2 kilometer from Cataytay's farm and 100 meters from the Namangyan river, until 5:00 p.m., when he went back to his house, staying there until 5:00 o'clock the following morning with his wife and 7-month old child. 9
The appellants' brief stresses the inconsistency of the trial court in convicting the accused after casting much doubt on the prosecution witnesses in its order dated October 10, 1984.
10 In that order, the trial judge granted bail on the finding that the evidence of their guilt was not strong.
The Solicitor General correctly observed:
The resolution of a petition for bail is not based on the entirety of the evidence presented during the trial on the merits. The trial court's initial finding that the evidence of guilt is not strong cannot be treated as an irrevocable finding of reasonable doubt thereby ensuring an inevitable acquittal. Otherwise, the merits of a criminal case will be resolved entirely in the bail hearing thereby dispensing of the need to proceed any further.
11
As for the alleged contradictions of Tangon and Moreno, we find that they are not of such consequence as to impair the veracity of their testimonies in their entirety. Moreover, we have held that contradictions in the testimony of a witness, instead of suggesting prevarication, may in fact indicate veracity and bolster the probative value of such testimony as a whole.
12 The separate testimonies of witnesses are not required to mesh with perfect congruence.
Motive is essential only when there is doubt as to the identity of the assailant, but not when the accused has been positively identified, as in the case before us. It is worth noting that, according to the victim's wife, there had earlier been a heated argument between Floro and Amondina over the sharing of a harvest. Her husband had suspected Cataytay of stealing his chickens. Amantillo on the other hand, is the uncle of Cataytay. These might have been the reasons for the resentment of the accused against Floro, and their ganging up on him that night.
We fully agree with the following observation of the Solicitor General in calling for the affirmation of the challenged judgment:
The case for the prosecution could not have been any stronger than if the deceased himself testified. The prosecution presented an impartial eyewitness who saw and described with detail the killing of the deceased. It presented the investigating officer whose investigation yielded physical and testimonial evidence that corroborated the eyewitness account. It presented the widow of the deceased whose testimony corroborated that of the eyewitness and provided factual basis for inferring plausible motives. The fact that she is the widow of the victim does not ipso facto make her a biased witness. (People v. Urgel, 134 SCRA 483) The results of the examination conducted by the investigating medico-legal physician supports the version of the eyewitness as to the manner with which the victim was killed. The evidence adduced by the prosecution satisfies the standard of moral certainty for conviction in criminal cases.
13
We also approve the finding of a conspiracy among the three accused based on the concert of their acts obviously aimed at the common purpose of killing Floro. As conspirators, they are all equally liable for the victim's death, whoever of them actually dealt the lethal blow.
The killing was qualified by treachery because of the sudden and consecutive attacks made by the three accused which were calculated to insure its execution without risk to them arising from the defense the victim might make. Treachery absorbs the circumstances of superior strength and aid of armed men,
14 which should not have been separately considered by the trial court.
Scoffing at the corpse has not been proved. There is no showing that the victim was already dead when Amantillo struck him with the piece of wood after the attack by Amondina and Cataytay. This conclusion is not supported by the autopsy report or the testimonies of the other prosecution witnesses.
Evident premeditation is likewise not present in this case because it has not been shown that the three accused purposely waited for the deceased in order to kill him. The prosecution has not established the elements of evident premeditation, to wit: (1) the time when the offender determined to commit the offense; (2) an act manifestly indicating that the culprit had clung to his determination; and (3) a sufficient interval of time between that determination and the execution of the offense.
15
We are satisfied that the guilt of the accused-appellants in the murder of Floro Gantilao has been proved beyond reasonable doubt and that they are justly punished with reclusion perpetua and all its accessory penalties. However, we shall increase the civil indemnity, for which all three accused-appellants are solidarily liable, to P50,000.00.
WHEREFORE, the appeal is DISMISSED and the judgment of the trial court as above modified is AFFIRMED, with costs against the accused-appellants. It is so ordered.
Griño-Aquino, Bellosillo and Quiason, JJ., concur.
#
Footnotes
1 Through Judge German G. Lee; Rollo, pp. 17-33.
2 TSN, July 31, 1984, pp. 4-8, 42, 50.
3 Ibid., pp. 11-12, 31-35.
4 TSN, September 13, 1984, pp. 4-6, 9-11, 36, 38.
5 TSN, January 22, 1985, pp. 5-8, 11-17, 20, 28, 29.
6 Exhibit B, Record, pp. 7-8.
7 TSN, October 8, 1985. pp. 5-6.
8 Ibid., p. 36; TSN, November 26, 1985, pp. 16-17.
9 TSN, December, 3, 1985, pp. 4, 26.
10 Rollo, p. 121.
11 Ibid., p. 152.
12 Ebajan vs. Court of Appeals, 170 SCRA 178.
13 Rollo, p. 175.
14 People vs. Mori, 55 SCRA 382; People vs. Sespeñe, 102 Phil. 199; People vs. Domingo, 18 Phil. 250.
15 People vs. Balansi, 187 SCRA 566.
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}88802_03_93_footnotes>mainG.R. No. 88802 March 17, 1993
FROILAN C. GERVASIO, ET AL. vs. ROLANDO V. CUAÑO, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 88802 March 17, 1993
FROILAN C. GERVASIO, CARLITA C. GERVASIO and INO MINING CORPORATION, petitioners,
vs.
ROLANDO V. CUAÑO, Regional Technical Director, Mines &
Geo-Sciences, and WILFREDO S. POLLISCO, Regional Executive Director, DENR, Region IV, respondents.
Manuel S. Laurel for petitioners.
The Solicitor General for respondents.
DAVIDE, JR., J.:
This is a petition for mandamus to compel the public respondents to accept the petitioners' payment of the docket fee for their Petition for Cancellation of the lode lease contracts and mining lease contracts granted to Consolidated Mines, Inc., and to assign a docket number thereto.
The pleadings disclose the following material operative facts:
The Consolidated Mines, Inc. (CMI for brevity) was awarded several lode lease contracts and mining lease contracts covering different areas in Mogpog, Marinduque.
In view of alleged reports that mining claims of other claimants were overlapping its own claims, CMI sent an urgent letter, dated 6 July 1988, to the Director of the Bureau of Mines and Geo-Sciences requesting for information as to the parties responsible therefor. On 12 July 1988, respondent Rolando V. Cuaño, the Regional Technical Director for Mines-Region IV (RTD for Mines-IV) of the Department of Environment and Natural Resources (DENR), furnished CMI with a list of its mining claims and the claims of other parties; included therein were statements on the status of their respective surveys.
1
On 15 July 1988, petitioners, through their counsel Atty. Manuel S. Laurel, filed a letter-protest
2 with the Director of Mines and Geo-Sciences alleging that the lease contracts granted to CMI had been abandoned pursuant to the provisions of Section 41 of the Consolidated Mines Administrative Order (CMAO) of 17 May 1975, 3 erroneously cited as Section 41 of P.D. No. 463. The pertinent portion of the said section reads:
Sec. 41. Terms and Conditions of the Lease.
xxx xxx xxx
(7) Failure to pay the required annual rentals or royalties, taxes and fees for a period of thirty (30) days after demand, or for two (2) consecutive years without such demand, shall cause the lease to lapse and the mining claim or claims, with respect to which such failure to pay was made, shall thereupon be open to relocation and lease by other persons qualified to locate and lease mining claims under the provisions of the Decree, in the same manner as if no location and lease of the same had ever been
made . . .
On 18 July 1988, CMI filed with the RTD for Mines-IV a complaint against the petitioners for overlapping the former's claims; CMI likewise formalized its objection to the claims of the other claimants and requested the said office to disapprove applications for the lease survey of such claims over areas covered by its contracts and to refuse to issue any lease contracts to
them.
4
Anent the petitioners' letter-protest of 15 July 1988, the RTD for Mines-IV scheduled a conference for 22 September 1988; said conference was, however, postponed to 25 October 1988 and then further reset to 17 November 1988 on which occasion the parties agreed to enter into an amicable settlement. Earlier, however, or on 8 November 1988, CMI filed a formal reply to this letter-protest.
5
The amicable settlement did not materialize. In view thereof, CMI informed the RTD for Mines-IV on 29 November 1988 that it had no other recourse but to proceed with the case and have the controversy decided on the merits; hearings were then set on various dates.
6
On 7 February 1989, petitioners filed a Petition for Cancellation wherein they prayed that the mining lease contracts of CMI be nullified and that their own mining claims be given due course.
7 They alleged that CMI did not perform its annual work obligations on its mining lease as mandatorily required by Section 46 of the CMAO; consequently, by virtue of Section 51 of the CMAO, CMI's mining lease contracts automatically lapsed.
On 7 March 1989, petitioners, through their counsel, wrote the RTD for Mines-IV to request that a docket number be assigned to their petition and that they be informed of the amount to be paid as docket fee. Thereupon, CMI filed an Opposition to the Petition for Cancellation on 13 March 1989.
8
A conference on the petition was set for 25 April 1989; upon the request of the petitioners, this was reset to 16 may 1989. The petitioners, however, did not appear on that date; hence, on 19 May 1989, the DENR-IV Regional Executive Director, respondent Wilfredo S. Pollisco, informed them in a letter that the hearing on 16 May 1989 had proceeded and that the parties should submit their respective memoranda on or before 31 May 1989, after which the case shall be deemed submitted for resolution.
9
CMI filed its Memorandum on 29 May 1989 while the petitioners filed theirs on 31 May 1989.
10
Also, on 29 May 1989, petitioners sent another letter to the RTD for Mines-IV with two (2) postal money orders attached thereto in the amount of P150.00 as payment for the docket fee of their Petition for Cancellation.
11
In his answer of 1 June 1989,
12 respondent Pollisco informed the petitioners that inter alia, to "charge a docketing fee for a complaint will be totally repugnant to the policy of this government to give due course to all complaints." 13
In their letter of 5 June 1989,
14 petitioners insisted that they be informed of the docket number of their petition which they claimed was necessary for identification purposes. This was followed by the 19 June 1989 and 28 June 1989 letters of their lawyer to respondent Pollisco reiterating their previous requests that the payment of the docket fee be acknowledged and that a docket number be assigned to the Petition for Cancellation.
On 16 June 1989, respondent Cuaño returned to the petitioners the amount they had earlier sent for the payment of the docket fee inasmuch as his office, "as a matter of policy, does not charge docketing fees for petitions or complaints."
15
On 7 July 1989, the petitioners filed the instant petition; they contend that the public respondents' refusal to accept the docket fee and to assign a docket number to their Petition for Cancellation of the mining contracts of CMI constitutes a direct violation of Section 121, Chapter XV of the CMAO which provides:
Sec. 121. Filing of Adverse Claims, Protest, and Oppositions. No adverse claim, protest, or any other kind of opposition involving mining claims, rights, leases or permits shall be accepted for filing unless verified and accompanied by the prescribed docket fee and proof of service, either personally or by registered mail, upon the respondent.
As a consequence thereof, the petitioners aver that they were thus unlawfully excluded from the enjoyment of their rights.
Petitioners likewise allege that the private respondents "have illegally, persistently and unjustly refused to comply" with the aforesaid Section 121, Chapter XV of the CMAO, "have unlawfully neglected and/or refused to perform an act which the law specifically enjoins as a duty resulting from their office, trust, or station" and "have unlawfully excluded petitioners Gervasio (sic) from the use and enjoyment of a right granted to them by law, to which they are entitled." They stress that they "have no other plain, speedy and adequate remedy in the ordinary course of law."
16
After the filing of the Comment by the respondents and the Reply thereto by the petitioners, this Court gave due course to the petition and required the parties to file their respective memoranda, which they subsequently complied with.
After a careful consideration and scrutiny of the issues raised and the arguments adduced by the parties, this Court finds the instant petition to be bereft of any merit.
Petitioners invoke the two (2) grounds which justify a petition for mandamus under Section 3, Rule 65 of the Revised Rules of Court, to wit" (a) that the respondents unlawfully neglected the performance of an act which the law specifically enjoins as a duty resulting from an office or station viz., accepting the docket fee and assigning a docket number to the Petition for Cancellation pursuant to Section 121 of the CMAO and (b) that the respondents unlawfully excluded the petitioners from the use and enjoyment of a right to which they are entitled. It is clear that both do not exist in this case. Petitioners filed two (2) pleadings before the public respondents, namely: (a) the letter-protest of 15 July 1988 and (b) the Petition for Cancellation of the CMI's lode lease contracts and mining lease contracts. In the Petition for Cancellation, petitioners submit that the latter's contracts must be considered abandoned for non-compliance with Section 41(7) of the CMAO while in the letter-protest, they erroneously rely on Section 41 of P.D. No. 463; at any rate, such contracts should be, as prayed for in the Petition for Cancellation, "cancelled, and the mining claims of the petitioners Gervasio (sic) be allowed due course by the Bureau of Mines."
17
The letter-protest and Petition for Cancellation do not qualify as an adverse claim, protest or any other kind of opposition described under Section 121 of the Consolidated Mines Administrative Order. Said section implements and complements Section 48 of P.D. No. 463 which provides:
Sec. 48 Protests and Adverse Claims. Any protest or adverse claim of any nature whatsoever involving the right to possession, lease, exploration or exploitation of any mining claim in any part of the Philippines shall be filed with the Bureau of Mines for investigation and decision pursuant to the provisions of Presidential Decree No. 309 and Letter of Instructions No. 119, as amended by Letter of Instructions No. 135. The protest or adverse claim shall be under oath and shall state in detail the nature thereof and shall be accompanied by all plans, documents, and other data upon which the protest or adverse claim is based.
In the case of an adverse claim against a lease application, filed under Section 34 hereof, such adverse claim shall be filed within fifteen (15) days after the first date of publication of the notice of lease application if such claim was not previously investigated and decided under Presidential Decree No. 309. When an adverse claim is filed under this paragraph, all proceedings, except the publication of the notice of application for lease, the submittal of the affidavit in connection therewith and the processing of applications for temporary permit, shall be stayed until the controversy is settled or decided by the Director: Provided, That the operations and production under a mines temporary permit issued prior to the adverse claim shall be allowed to continue subject to the provisions of Section 33 concerning the posting of bonds.
Obviously, the protest, adverse claim or any other kind of opposition which requires the payment of a docket fee refers to that which is filed during the pendency of an application for a lode lease or mining lease contract.
Since the petitioners did not need to pay a docket fee when they filed the Petition for Cancellation of CMI's mining contracts, respondents did not have the duty of demanding payment for and collecting a docket fee. Nor was there the necessity of assigning a docket number; no law enjoins the collection of said fee or the assignment of a number. Thus, respondents cannot be held liable for neglect in the performance of a duty. We find the petitioners' dogged persistence in insisting to pay the docket fee rather strange. Moreover, the reason they gave in support of their request for the assignment of a docket number that the same is necessary for purposes of identification is untenable for, being merely a subsequent incident to earlier applications for mining lease contracts by CMI, identification is not difficult. The problem of identification exists only in the minds of the petitioners.
As to the second ground, We fail to see how the petitioners were excluded from the enjoyment of a right by the non-acceptance of the docket fee and the refusal by the respondents to assign a docket number to their Petition for Cancellation. In the first place, as already shown, they did not have the right to demand the acceptance of their "payment" of the docket fee or to have a docket number assigned to their petition. The rule is well-settled that for mandamus to issue, and petitioners must establish a clear legal right to the relief sought, and a mandatory duty of the respondent in relation thereto.
18
In the second place, petitioners' letter-protest and Petition for Cancellation were, in fact, duly accepted by the public respondents; hearings thereon were conducted; petitioners even submitted their Memorandum in support of their protest and petition. In short, even on the assumption that payment of a docket fee was prescribed, the respondents even disregarded such a requirement to accommodate the petitioners. More accurately, if indeed the petitioners had any right, the respondents allowed them to exercise the same unhampered by such procedural technicality. Thus, no one could truthfully say that the petitioners were unlawfully excluded by the respondents from the enjoyment of a right.
WHEREFORE, for want of merit, the instant petition is DISMISSED with costs against the petitioners.
SO ORDERED.
Feliciano, Bidin, Romero and Melo, JJ., concur.
Gutierrez, Jr., J., is on leave.
#
Footnotes
1 Rollo, 57-58.
2 Id., 59.
3 Implementing P.D. No. 463, otherwise known as the "Mineral Resources Development Decree of 1974," as amended.
4 Rollo, 59.
5 Id., 60-61.
6 Id., 61.
7 Annex "A" of Petition; Rollo, 17-30.
8 Id., 62.
9 Id., 63.
10 Id.
11 Annex "D" of Petition; Rollo, 34.
12 Annex "E", Id., Id., 36.
13 Id.
14 Annex "F", Id., Id., 57.
15 Annex "I", Id., Id., 41.
16 Rollo, 12-13.
17 Rollo, 29.
18 Morada vs. Caluag, 5 SCRA 1128 [1926]; Yuvienco vs. Canonoy, 39 SCRA 597 [1971].
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}94053_03_93_footnotes>mainG.R. No. 94053 March 17, 1993
REPUBLIC vs. GREGORIO NOLASCO
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 94053 March 17, 1993
REPUBLIC OF THE PHILIPPINES, petitioner,
vs.
GREGORIO NOLASCO, respondent.
The Solicitor General for plaintiff-appellee.
Warloo G. Cardenal for respondent.
R E S O L U T I O N
FELICIANO, J.:
On 5 August 1988, respondent Gregorio Nolasco filed before the Regional Trial Court of Antique, Branch 10, a petition for the declaration of presumptive death of his wife Janet Monica Parker, invoking Article 41 of the Family Code. The petition prayed that respondent's wife be declared presumptively dead or, in the alternative, that the marriage be declared null and void.
1
The Republic of the Philippines opposed the petition through the Provincial Prosecutor of Antique who had been deputized to assist the Solicitor-General in the instant case. The Republic argued, first, that Nolasco did not possess a "well-founded belief that the absent spouse was already dead,"
2 and second, Nolasco's attempt to have his marriage annulled in the same proceeding was a "cunning attempt" to circumvent the law on marriage. 3
During trial, respondent Nolasco testified that he was a seaman and that he had first met Janet Monica Parker, a British subject, in a bar in England during one of his ship's port calls. From that chance meeting onwards, Janet Monica Parker lived with respondent Nolasco on his ship for six (6) months until they returned to respondent's hometown of San Jose, Antique on 19 November 1980 after his seaman's contract expired. On 15 January 1982, respondent married Janet Monica Parker in San Jose, Antique, in Catholic rites officiated by Fr. Henry van Tilborg in the Cathedral of San Jose.
Respondent Nolasco further testified that after the marriage celebration, he obtained another employment contract as a seaman and left his wife with his parents in San Jose, Antique. Sometime in January 1983, while working overseas, respondent received a letter from his mother informing him that Janet Monica had given birth to his son. The same letter informed him that Janet Monica had left Antique. Respondent claimed he then immediately asked permission to leave his ship to return home. He arrived in Antique in November 1983.
Respondent further testified that his efforts to look for her himself whenever his ship docked in England proved fruitless. He also stated that all the letters he had sent to his missing spouse at No. 38 Ravena Road, Allerton, Liverpool, England, the address of the bar where he and Janet Monica first met, were all returned to him. He also claimed that he inquired from among friends but they too had no news of Janet Monica.
On cross-examination, respondent stated that he had lived with and later married Janet Monica Parker despite his lack of knowledge as to her family background. He insisted that his wife continued to refuse to give him such information even after they were married. He also testified that he did not report the matter of Janet Monica's disappearance to the Philippine government authorities.
Respondent Nolasco presented his mother, Alicia Nolasco, as his witness. She testified that her daughter-in-law Janet Monica had expressed a desire to return to England even before she had given birth to Gerry Nolasco on 7 December 1982. When asked why her daughter-in-law might have wished to leave Antique, respondent's mother replied that Janet Monica never got used to the rural way of life in San Jose, Antique. Alicia Nolasco also said that she had tried to dissuade Janet Monica from leaving as she had given birth to her son just fifteen days before, but when she (Alicia) failed to do so, she gave Janet Monica P22,000.00 for her expenses before she left on 22 December 1982 for England. She further claimed that she had no information as to the missing person's present whereabouts.
The trial court granted Nolasco's petition in a Judgment dated 12 October 1988 the dispositive portion of which reads:
Wherefore, under Article 41, paragraph 2 of the Family Code of the Philippines (Executive Order No. 209, July 6, 1987, as amended by Executive Order No. 227, July 17, 1987) this Court hereby declares as presumptively dead Janet Monica Parker Nolasco, without prejudice to her reappearance.
4
The Republic appealed to the Court of Appeals contending that the trial court erred in declaring Janet Monica Parker presumptively dead because respondent Nolasco had failed to show that there existed a well founded belief for such declaration.
The Court of Appeals affirmed the trial court's decision, holding that respondent had sufficiently established a basis to form a belief that his absent spouse had already died.
The Republic, through the Solicitor-General, is now before this Court on a Petition for Review where the following allegations are made:
1. The Court of Appeals erred in affirming the trial court's finding that there existed a well-founded belief on the part of Nolasco that Janet Monica Parker was already dead; and
2. The Court of Appeals erred in affirming the trial Court's declaration that the petition was a proper case of the declaration of presumptive death under Article 41, Family Code.
5
The issue before this Court, as formulated by petitioner is "[w]hether or not Nolasco has a well-founded belief that his wife is already dead."
6
The present case was filed before the trial court pursuant to Article 41 of the Family Code which provides that:
Art. 41. A marriage contracted by any person during the subsistence of a previous marriage shall be null and void, unless before the celebration of the subsequent marriage, the prior spouse had been absent for four consecutive years and the spouse present had a well-founded belief that the absent spouse was already dead. In case of disappearance where there is danger of death under the circumstances set forth in the provision of Article 391 of the Civil Code, an absence of only two years shall be sufficient.
For the purpose of contracting the subsequent marriage under the preceding paragraph, the spouse present must institute a summary proceeding as provided in this Code for the declaration of presumptive death of the absentee, without prejudice to the effect of reappearance of the absent spouse. (Emphasis supplied).
When Article 41 is compared with the old provision of the Civil Code, which it superseded,
7 the following crucial differences emerge. Under Article 41, the time required for the presumption to arise has been shortened to four (4) years; however, there is need for a judicial declaration of presumptive death to enable the spouse present to remarry. 8 Also, Article 41 of the Family Code imposes a stricter standard than the Civil Code: Article 83 of the Civil Code merely requires either that there be no news that such absentee is still alive; or the absentee is generally considered to be dead and believed to be so by the spouse present, or is presumed dead under Article 390 and 391 of the Civil Code. 9 The Family Code, upon the other hand, prescribes as "well founded belief" that the absentee is already dead before a petition for declaration of presumptive death can be granted.
As pointed out by the Solicitor-General, there are four (4) requisites for the declaration of presumptive death under Article 41 of the Family Code:
1. That the absent spouse has been missing for four consecutive years, or two consecutive years if the disappearance occurred where there is danger of death under the circumstances laid down in Article 391, Civil Code;
2. That the present spouse wishes to remarry;
3. That the present spouse has a well-founded belief that the absentee is dead; and
4. That the present spouse files a summary proceeding for the declaration of presumptive death of the absentee.
10
Respondent naturally asserts that he had complied with all these requirements.
11
Petitioner's argument, upon the other hand, boils down to this: that respondent failed to prove that he had complied with the third requirement, i.e., the existence of a "well-founded belief" that the absent spouse is already dead.
The Court believes that respondent Nolasco failed to conduct a search for his missing wife with such diligence as to give rise to a "well-founded belief" that she is dead.
United States v. Biasbas,
12 is instructive as to degree of diligence required in searching for a missing spouse. In that case, defendant Macario Biasbas was charged with the crime of bigamy. He set-up the defense of a good faith belief that his first wife had already died. The Court held that defendant had not exercised due diligence to ascertain the whereabouts of his first wife, noting that:
While the defendant testified that he had made inquiries concerning the whereabouts of his wife, he fails to state of whom he made such inquiries. He did not even write to the parents of his first wife, who lived in the Province of Pampanga, for the purpose of securing information concerning her whereabouts. He admits that he had a suspicion only that his first wife was dead. He admits that the only basis of his suspicion was the fact that she had been absent. . . .
13
In the case at bar, the Court considers that the investigation allegedly conducted by respondent in his attempt to ascertain Janet Monica Parker's whereabouts is too sketchy to form the basis of a reasonable or well-founded belief that she was already dead. When he arrived in San Jose, Antique after learning of Janet Monica's departure, instead of seeking the help of local authorities or of the British Embassy,
14 he secured another seaman's contract and went to London, a vast city of many millions of inhabitants, to look for her there.
Q After arriving here in San Jose, Antique, did you exert efforts to inquire the whereabouts of your wife?
A Yes, Sir.
Court:
How did you do that?
A I secured another contract with the ship and we had a trip to London and I went to London to look for her I could not find her (sic).
15 (Emphasis supplied)
Respondent's testimony, however, showed that he confused London for Liverpool and this casts doubt on his supposed efforts to locate his wife in England. The Court of Appeal's justification of the mistake, to wit:
. . . Well, while the cognoscente (sic) would readily know the geographical difference between London and Liverpool, for a humble seaman like Gregorio the two places could mean one place in England, the port where his ship docked and where he found Janet. Our own provincial folks, every time they leave home to visit relatives in Pasay City, Kalookan City, or Parañaque, would announce to friends and relatives, "We're going to Manila." This apparent error in naming of places of destination does not appear to be fatal.
16
is not well taken. There is no analogy between Manila and its neighboring cities, on one hand, and London and Liverpool, on the other, which, as pointed out by the Solicitor-General, are around three hundred fifty (350) kilometers apart. We do not consider that walking into a major city like Liverpool or London with a simple hope of somehow bumping into one particular person there which is in effect what Nolasco says he did can be regarded as a reasonably diligent search.
The Court also views respondent's claim that Janet Monica declined to give any information as to her personal background even after she had married respondent
17 too convenient an excuse to justify his failure to locate her. The same can be said of the loss of the alleged letters respondent had sent to his wife which respondent claims were all returned to him. Respondent said he had lost these returned letters, under unspecified circumstances.
Neither can this Court give much credence to respondent's bare assertion that he had inquired from their friends of her whereabouts, considering that respondent did not identify those friends in his testimony. The Court of Appeals ruled that since the prosecutor failed to rebut this evidence during trial, it is good evidence. But this kind of evidence cannot, by its nature, be rebutted. In any case, admissibility is not synonymous with credibility.
18 As noted before, there are serious doubts to respondent's credibility. Moreover, even if admitted as evidence, said testimony merely tended to show that the missing spouse had chosen not to communicate with their common acquaintances, and not that she was dead.
Respondent testified that immediately after receiving his mother's letter sometime in January 1983, he cut short his employment contract to return to San Jose, Antique. However, he did not explain the delay of nine (9) months from January 1983, when he allegedly asked leave from his captain, to November 1983 when be finally reached San Jose. Respondent, moreover, claimed he married Janet Monica Parker without inquiring about her parents and their place of residence.
19 Also, respondent failed to explain why he did not even try to get the help of the police or other authorities in London and Liverpool in his effort to find his wife. The circumstances of Janet Monica's departure and respondent's subsequent behavior make it very difficult to regard the claimed belief that Janet Monica was dead a well-founded one.
In Goitia v. Campos-Rueda,
20 the Court stressed that:
. . . Marriage is an institution, the maintenance of which in its purity the public is deeply interested. It is a relationship for life and the parties cannot terminate it at any shorter period by virtue of any contract they make. . . . .
21 (Emphasis supplied)
By the same token, the spouses should not be allowed, by the simple expedient of agreeing that one of them leave the conjugal abode and never to return again, to circumvent the policy of the laws on marriage. The Court notes that respondent even tried to have his marriage annulled before the trial court in the same proceeding.
In In Re Szatraw,
22 the Court warned against such collusion between the parties when they find it impossible to dissolve the marital bonds through existing legal means.
While the Court understands the need of respondent's young son, Gerry Nolasco, for maternal care, still the requirements of the law must prevail. Since respondent failed to satisfy the clear requirements of the law, his petition for a judicial declaration of presumptive death must be denied. The law does not view marriage like an ordinary contract. Article 1 of the Family Code emphasizes that.
. . . Marriage is a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. It is the foundation of the family and an inviolable social institution whose nature, consequences, and incidents are governed by law and not subject to stipulation, except that marriage settlements may fix the property relations during the marriage within the limits provided by this Code. (Emphasis supplied)
In Arroyo, Jr. v. Court of Appeals,
23 the Court stressed strongly the need to protect.
. . . the basic social institutions of marriage and the family in the preservation of which the State bas the strongest interest; the public policy here involved is of the most fundamental kind. In Article II, Section 12 of the Constitution there is set forth the following basic state policy:
The State recognizes the sanctity of family life and shall protect and strengthen the family as a basic autonomous social institution. . . .
The same sentiment bas been expressed in the Family Code of the Philippines in Article 149:
The family, being the foundation of the nation, is a basic social institution which public policy cherishes and protects. Consequently, family relations are governed by law and no custom, practice or agreement destructive of the family shall be recognized or given effect.
24
In fine, respondent failed to establish that he had the well-founded belief required by law that his absent wife was already dead that would sustain the issuance of a court order declaring Janet Monica Parker presumptively dead.
WHEREFORE, the Decision of the Court of Appeals dated 23 February 1990, affirming the trial court's decision declaring Janet Monica Parker presumptively dead is hereby REVERSED and both Decisions are hereby NULLIFIED and SET ASIDE. Costs against respondent.
Bidin, Davide, Jr., Romero and Melo, JJ., concur.
Gutierrez, Jr. J., is on leave.
#
Footnotes
1 Petition, p. 2; Record, p. 7.
2 Records, p. 13.
3 Records, p. 14.
4 Trial Court Decision, p. 4; Records, p. 39.
5 Petition, p. 9; Rollo, p. 13.
6 Id.
7 Pertinent portions of Article 83 of the Civil Code reads:
Art. 83. Any marriage subsequently contracted by any person during the lifetime of the first spouse of such person with any other person other than such first spouse shall be illegal and void from its performance, unless:
xxx xxx xxx
(2) The first spouse had been absent for seven consecutive years at the time of the second marriage without the spouse present having news of the absentee being alive, or if the absentee, though he has been absent for less than seven years, is generally considered as dead and believed to be so by the spouse present at the time of the contracting such subsequent marriage, or if the absentee is presumed dead according to articles 390 and 391. The marriage so contracted shall be valid in any of the three cases until declared null and void by a competent court.
8 See A. V. Sempio Diy, Handbook on the Family Code of the Philippines (1988),
p. 48.
9 See generally Jones v. Hortiguela, 64 Phil. 179 (1937).
10 Petition, p. 11; Rollo; p. 15.
11 Memorandum for Respondent, p. 4.
12 25 Phil. 71 (1913).
13 25 Phil. at 73.
14 TSN, 28 September 1988, p. 16.
15 Id., p. 8.
16 Court of Appeal's Decision, p. 6.
17 TSN, 28 September 1988, p. 14.
18 See generally Ramos v. Sandiganbayan, 191 SCRA 671 (1990).
19 TSN, 28 September 1988, p. 10.
20 35 Phil. 252 (1919).
21 35 Phil. at 254.
22 81 Phil. 461 (1948).
23 203 SCRA 750 (1991).
24 203 SCRA at 761.
#
$ + GRSI ® Copyrightregno N94-027
G.R. No. 97393 March 17, 1993
PEOPLE OF THE PHIL. vs. RODOLFO S. BERNARDO, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 97393 March 17, 1993
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RODOLFO BERNARDO y SUMBILLO, P/CPL. MELQUIADES IGNACIO, PAT. FRANCISCO VICTORIA, P/SGT. DANILO BORJA y RONQUILLO, REYNALDO PULONGBARIT, JOHN DOE Alias "Ruben Bandera", PETER DOE Alias "Daneng", RICHARD DOE Alias "Tonio", and JAMES DOE Alias "Boy Wally", accused-appellants.
The Solicitor General for plaintiff-appellee.
Augusto S. Sanchez & Associates for R.S. Bernardo.
Rufino V. Mijares for R. Pulongbarit.
Antonio F. Navarrete for M. Ignacio.
MELO, J.:
Accused-appellants seek the reversal of the decision rendered on January 18, 1991 by the Honorable Maximiano C. Asuncion, Presiding Judge of Branch 104 of the Regional Trial Court of the National Capital Judicial Region stationed in Quezon City convicting them of Kidnapping for Ransom and imposing on each of them the penalty of reclusion perpetua with all the accessory penalties provided by law to indemnify the victim, Paul Cruz, in the amount of P3,465,000.00, P1,000,000.00, P100,000.00, P100,000.00 which are, respectively, for actual, moral, and exemplary damages, and attorney's fees. Needless to say, no subsidiary imprisonment in case of insolvency was imposed.
On September 27, 1988, while private complainant Paul V. Cruz was driving his car inside Better Living Subdivision in Parañaque, his path was blocked by two cars, one in front and the other at the rear, and he was forcibly taken at gun-point and shoved into the car at the front. While inside the car, his eyes were taped then covered with eyeglasses to conceal the tape and he was then taken to an undetermined place after a twenty-minute drive.
Taken inside a room, his thumbs were cuffed and he was informed that his abductors know him and his capability to meet their monetary demand of P30,000,000.00. When he said that he did not have that much money, he was slapped, punched, and his feet were tied. He was instructed to cooperate so that his life would be spared and to seek monetary assistance from friends and a sister. Again, he was slapped, mauled, his trousers taken off and his sex organ toyed with. The ransom demand was then reduced to P15,000,000.00. After making five phone calls, the victim was able to raise P3,365,000.00 which his captors considered acceptable and, later, obtained.
Before being released late in the afternoon, Paul was threatened not to report the incident to the authorities or he will be slain. It took sometime before he mustered enough courage to report the incident to the Quezon City police on November 10, 1988.
The police and the military authorities rounded-up the suspects and on June 22, 1989, a corresponding information was filed by the Quezon City fiscal. After trial, the lower court adjudged the accused, now herein appellants, guilty beyond reasonable doubt.
From the findings of said court, it appears that private complainant Paul V. Cruz and accused-appellant Rodolfo S. Bernardo are townmates in San Ildefonso, Bulacan and have known each other since they were kids. When Paul was campaigning for mayor of San Ildefonso, his friend, Steve Paulino recommended Bernardo for possible employment and Bernardo was told to see Paul after the campaign.
In February 1988, Bernardo went to see Paul at the latter's office at Christina Condominium, Legaspi Village, Makati. Coming to know that Bernardo was formerly in charge of the beef section of Jopson Supermarket, Paul instructed Bernardo to conduct a feasibility study on a burger machine business. Paul would finance the business, while Bernardo would manage the same.
During the period March to June 1988, Bernardo submitted to Cruz his handwritten feasibility study on a two-page prescription pad bearing the drug name "Intropin." During the same period, Paul gave Bernardo, in addition to his monthly allowance, financial assistance amounting to P25,000.00 aside from P141,000.00 supposedly used for the purchase of burger equipment. However, Bernardo admitted having diverted P41,251.45 for his own personal use and because of this, Paul decided to abort the burger machine business. Nevertheless, Bernardo, said that should Paul later decide to resume the business, he was willing to pay his shortage through deductions from his salaries. He further promised to sell pieces of jewelry to pay for his obligation but this was not kept and his indebtedness was never paid.
During this period, Bernardo became familiar with the service-contracting business of Paul and came to know that Paul's office handled an average daily transaction of about P2.5 million which was usually kept inside a vault at the third floor of Christina Condominium.
In August 1988, Bernardo contacted Jaime Gallarza whom he had met through his compadre, Ogie Toledo. They met at the Plaza Congressional Village, Quezon City where Bernardo intimated that because he admired the way Gallarza moved, he would need the latter's services for a good one-time job to kidnap his employer, Paul, for a ransom of P5 million. Gallarza agreed and promised to look for men to help him do the job.
A few days after, Gallarza called up Bernardo and said that he had Rico Ramirez and Boyet Morales, both "Batang Munti." These two were introduced by Gallarza to Bernardo at the Tropical Hut Hamburger, Caloocan City. The following day, they met again at Jollibee, North EDSA, Quezon City, and from there, they proceeded to the SM Carpark. Inside his car, Bernardo told them that his employer kept more than P2 million inside the office vault every Friday. He further instructed Gallarza to look for a person who is an expert with locks. The next day Bernardo fetched Gallarza's group at the Makati Cinema Square and drove to Christina Condominium. They planned to rob Paul by stealing his money in the office vault; Bernardo and Ramirez would wait in the car, while Gallarza and Morales would enter the condominium; that should the guards ask whom they wanted to see, Gallarza and Morales would simply invent a name; and that before unlocking the vault, Gallarza and Morales would first tie Galo Violago (Paul's Secretary) and a female accountant who might be inside the room. Bernardo wrote down on a four-page "Intropin" prescription pad the details regarding the amount to be taken from the vault and the possible persons whom the group might encounter, namely, "Amang-Tatang," "Galo-Clerk/Accountant," "Junior-driver," "Kiko-Janitor-Messenger," "Len-cashier," and "Liza-assistant cashier."
As instructed by Bernardo, Gallarza and Morales entered the condominium but they were stopped by a guard who asked where they were going. They gave a name but the guards said that no such person worked there. The two backed out and returned to the car.
Informed of what happened, Bernardo said that they should just kidnap Paul, but that they first had to make a surveillance of the places he usually goes to. From Christina Condominium, they drove to San Lorenzo Village and then to Better Living Subdivision, Parañaque, where Bernardo pointed to the houses of Paul. From Better Living Subdivision, they proceeded to other places frequented by Paul.
Later, the group returned to Better Living Subdivision twice and each time, Bernardo would point to a white Mercedes Benz owned by Paul. On one occasion, Bernardo said that they would need a .45 caliber gun to ensure the kidnapping. Later, Bernardo advised Gallarza that they had to cool off in the meantime because Paul went to Saudi Arabia.
On the third week of September 1988, Bernardo called up Gallarza and fetched him. They went to Parañaque where Bernardo introduced to him 8 men including 4 policemen, namely, Reynaldo Pulongbarit, Danilo Borja, Francisco Victoria, and Melquiades Ignacio. Bernardo told Gallarza that he had to hire this new group to kidnap Paul because he noticed that Rico Ramirez, one of the "Batang Munti" previously recruited by Gallarza, was the nervous type. According to Bernardo, the new group is, "matibay-tibay, maganda ang laban natin dito."
On September 27, 1988 at about 6 to 7 A.M., they executed the kidnapping. Ignacio, Victoria, Pulongbarit, Borja and driver Daniel Iral, almost simultaneously alighted from the 2 cars that blocked Paul's car earlier. Victoria pointed a gun at Paul and ordered him to come with them because their boss would like to speak to him. Paul could not but comply.
In rejecting the defense of alibi, the trial court, in its rather lengthy decision, made the following observations, to wit:
However, after a conscientious examination and a minute balancing of the evidence, the Court is still convinced that those who have been charged of the offense of kidnapping for ransom participated therein. This, inspite of the alleged retraction of Gallarza because the very witness for the defense, Brenda Lumabao, testified that Gallarza repudiated Exhs. 8, 8-A to 8-E, stating that he was forced to sign it.
Retraction cannot be given probative value. (People v. Samson, G.R. 55520, Oct. 25, 1989; Reano v. CA, G.R. 80992, Sept. 21, 1988).
The very fact that, at the outset of this case, the accused Rodolfo Bernardo and Melquiades Ignacio employed only one counsel in the person of Atty. Rolando S. Javier, as may be seen from the petition to Post Bail dated November 24, 1988; that only one counsel represents Melquiades Ignacio and Reynaldo Pulongbarit are all indicative of the conspiracy among the accused.
The defense of alibi and the negative defense put up by Bernardo are too puny to be used as a battering ram against the stronghold of evidence of the prosecution.
Mere denial not sufficient. (People v. Hernandez, No. 1989)
Alibi cannot prevail over positive identification of the accused by prosecution witnesses. (People v. Repe, G.R. 64935, July 19, 1989; People v. Bravo, Dec. 29, 1989; People v. Macalinao, Aug. 31, 1989; People v. Serenio, Nov. 14, 1989)
Identification is given full credit where there is no motive of witnesses to implicate falsely the accused. (People v. Samson, G.R. 55520, Oct. 25, 1989; People v. Tan, Dec. 1989)
For alibi to prosper, the accused must prove that they were somewhere else and that it would be physically impossible for them to be at the scene of the crime (People v. Alvarez, Jan. 31, 1989; People v. Pigon, May 29, 1989; People v. Abaya, Feb. 27, 1989; People v. Almario, Mar. 16, 1989). The defense failed in this aspect because their INP Morning Report and Attendance did not positively show they could not have been at the scene of the crime.
The defense only succeeded in furnishing evidence against itself.
Between positive declarations of the prosecution witnesses and negative statements of accused, the former deserve more credence (People v. Macabenta, Feb. 14, 1989; People v. Teves, Apr. 29, 1989; People v. Paco, Feb. 27, 1989 and People v. Muhamading, June 22, 1989). (pp. 108-109, Rollo.)
Accused-appellants Rodolfo S. Bernardo, Reynaldo Pulongbarit, and Melquiades Ignacio appealed, arguing that the trial court erred in appreciating the alleged weak evidence adduced by the prosecution and in not giving significance to their defenses of alibi and lack of knowledge and involvement in the crime committed.
Bernardo faults the lower court for concluding that he masterminded the kidnapping plot simply because he had inside information regarding the business operations of Paul Bernardo presents the theory that since another group or even a stranger could have easily obtained the same information, then, it is possible that the kidnapping plot was conceived and committed by such group or strangers.
Bernardo's contention is totally irrelevant because of the solid and positive evidence undoubtedly identifying him as the one who masterminded Paul's kidnapping for ransom.
On Gallarza's testimony regarding his knowledge as part of the original group to rob and kidnap Paul, his conversation with Bernardo was as follows:
Q What happened during the course of your conversation?
A He said, he has some job for me . . . , sir.
Q What did you discuss while you were there at the plaza?
A He told me, here, I have a job for you and if you could secure some men for the purpose of kidnapping for ransom which involves P5 million, which is a small amount.
Q Did he tell you or identify to you the name of the person who would be the subject of the kidnapping for ransom?
A He did not tell me his name, but he told me he was an employee of the said person. I asked him if he's sure about it, sir.
Q What was the answer on the part of Bernardo?
A Yes, and if you could secure some men, this is a good one-time job.
Q What was your reply, if any?
A I told him, yes. I could do that. I could secure three persons and I am the fourth man.
xxx xxx xxx
Q At the SM North EDSA car park, what was taken up during that time inside his car?
A He told us about an amount which will not be more than P2 million inside the vault in the building every Friday.
Q Now, you are referring to what vault and in what building?
A Belonging to the businessman, who is his employer in Makati, sir.
Q At that stage, did he actually tell you who the name or identity of the businessman?
A He did not mention it, but we just know he is his manager.
xxx xxx xxx
Q You said you and Boyet Morales were not able to get inside the building, what did you do?
A When we cannot enter the condominium, we went in his car and inasmuch as we cannot get the P2 million, we will just Kidnap Paul, a bearded man, Bernardo, he is my employer.
xxx xxx xxx
Q Rodolfo Boy Bernardo mentioned that you just kidnap. Did he tell you how this will be accomplished?
A Yes, sir, because we were not able to enter the building, we will just pass to the route where he usually takes his breakfast and meals.
xxx xxx xxx
Q In that San Lorenzo Village, did you go to a house?
A In the street, sir. "Yan, yan, yan ang bahay." That is the house.
Q Who said that . . .?
A Rodolfo Boy Bernardo, sir.
Q And whose house was he referring to?
A Paul Cruz, sir, the one who will be kidnapped.
xxx xxx xxx
Q After that, what else happened?
A He brought us to our house and he told us he will just call us. I called him up the following day and he told me that the man had left for Saudi and he told us first to cool off . . . that Mr. Cruz is in Saudi and for us to call him up.
Q By Mr. Cruz, you are referring to Paul Cruz mentioned earlier?
A Yes, sir.
xxx xxx xxx
Q Where did you go together with Boy Bernardo?
A We went to Parañaque because he said he will introduce a person to me somewhere in Parañaque.
xxx xxx xxx
While on the way, he told me he would introduce me to a new group because he noticed that Rico Ramirez is nervous.
xxx xxx xxx
Q Who said that, "na may makakasama kang mga pulis, maganda ganda ang laban?"
A Boy Bernardo, sir.
xxx xxx xxx
Q How were you able to meet these persons?
A They were introduced to me by Boy Bernardo and he told me that those are the policemen. (t.s.n. January 12, 1989, pp. 14-55.)
Bernardo, through counsel, admitted that the instructions given to Gallarza regarding the robbery-kidnap plan, contained in a four-page "Intropin" pad (Exh. "A"), were his own hand-writing. While Bernardo's counsel claimed that such hand-written instructions were forcibly extracted by the police, Bernardo did not testify on this matter, not even alluding to this evidence in his testimony. Exhibit "A" was presented not by the police authorities but by Gallarza who received it from Bernardo himself. The trial court correctly concluded that Bernardo was the author of Exhibit "A".
Bernardo insists on the alleged affidavit of recantation (Exh. 8) executed by Gallarza before State Prosecutor Brenda Lumabao. But this affidavit was repudiated weeks later by Gallarza who said that he was only forced to sign it. In reality, therefore, there is no affidavit of recantation upon which Gallarza's testimony may be discarded. Besides, affidavits of recantation can easily be secured from poor and ignorant witnesses, usually for monetary consideration, and the Court has invariably regarded such affidavits as exceedingly unreliable (People v. Mangulabnan, 200 SCRA 611 [1991]).
Bernardo further contends that Gallarza is an unreliable witness not only because of his dubious character, but more so because of the various inconsistencies in the robbery-kidnap plan which he narrated in court.
The argument falls on its face. It was precisely because of Gallarza's unsavory character that Bernardo initially engaged his services to help in the robbery-kidnap plan. If Gallarza turned out to be a poor choice for the plan, that is Bernardo's concern, but such circumstance does not affect or negate Bernardo's criminal liability. Gallarza stood firm on his testimony even during the rigid cross-examination conducted by the defense. This shows that he is a credible witness as appreciated by the lower court.
Bernardo's culpability is shown by his spontaneous statement given to GMA 7 reporter Jessica Sojo, to wit: "Siguro, naisip ko nga ring sabihin to sa kanya (Paul Cruz) na may konti ka ring kasalanan, Paul, siguro kasalanan 'in quotation' dahil parang inispoil mo ako, inispoil ako."
This was made not as part of the custodial interrogation but as Bernardo's voluntary accommodation to media questioning and is thus admissible in evidence especially so because the statement tries to justify his ungratefulness to his employer. The fact that the GMA 7 tape was edited with commentaries does not erase the reality that such declaration came out freely from Bernardo's own lips.
Invoking alibi, Pulongbarit insists that he was in San Rafael, Bulacan serving as close-in security for Mayor Jessie Viceo on September 27, 1988 and that he could not have participated in the abduction of Paul at Better Living Subdivision, Parañaque, Metro Manila on that date.
Alibi, as a defense, is weak as it can be easily concocted. In order that it may prosper, it is not enough to prove that the appellant was somewhere else when the crime was committed but it must likewise be demonstrated that he was so far away that he could not have been physically present at the place of the crime or its immediate vicinity at the time of its commission (People vs. Cadag, 208 SCRA 781 [1992]). Pulongbarit's alleged presence in San Rafael, Bulacan on the date of the incident could not have made it impossible for him to be at Better Living Subdivision, Parañaque at the time of the snatching because the distance between the two places can be easily traveled in 2 hours. More importantly, Pulongbarit was positively identified by Paul himself as one of his abductors who blocked his car and, at gun-point, forced him out of his car and shoved him into the Colt Galant car (p. 22 appellee's brief; after p. 236, Rollo).
Testified thus Paul on this point (with Pulongbarit's name at times misspelled):
Q What about you, what did you do when you saw the Colt Galant stopped ahead of you?
A Because they were blocking my way, I also stopped.
Q What did you see?
A The two persons have already alighted, sir.
Q By two persons, you are referring to the two from the Colt Galant?
A Yes, sir, coming from the Colt Galant with Plate No. NTC 413 and they were approaching me, the gun was already pointed at me, like this.
Q You said that these two persons approached you, did you recognize the persons or rather the person who approached you?
A Yes, sir.
Q Who are these persons?
A One of them is here, sir.
Q What about the other one?
A As far as I know, he is in Taguig.
Q You mentioned that one of the two men with drawn guns is now in Taguig, do you know now the name of that person?
A The two persons who approached me Palumbarit and Victoria, told me that their boss would like to talk to me, sir.
Q What did you do after you were asked to go with them?
A I refused to go with them, sir, but when I saw the four persons alighted from the blue car and were behind my car, I was constrained to go with them, because two of them were pulling me.
Q You said you saw these four men alighted from the blue car and two persons where pulling you, who were those two persons pulling you?
A Reynaldo Palumbarit and Francisco Victoria, sir.
Q You said you obeyed, how?
A When they pulled me out of the car because the guns of Palumbarit and Victoria were pointed at me, so I followed them to the Colt Galant.
Q Now, how many persons were inside the Colt Galant at the time Borja uttered the statement that you should not do anything that would provoke them?
A There were four of them, on my left was Victoria, on my right side Palumbarit. They were the ones who put the blindfold on my eyes.
Q Last time you testified on May 18, 1989 on direct examination that you saw alight from a blue car two persons, Reynaldo Pulongbarit and Francisco Victoria, and that they have (sic) drawn guns, if this Pulongbarit is inside the court room, will you be able to point to him?
A Yes, sir.
Q Please point to him.
A He is the one, sir.
Interpreter:
Witness pointed to a male person inside the courtroom when asked gave his name as Reynaldo Pulongbarit. (t.s.n., May 18, 1989, pp. 36, 39, 40, 42, 44, 46, 51 and 52; Sept. 20, 1989, pp. 5 and 9).
Pulongbarit was also positively identified by Gallarza as one of the four policemen who was introduced to him by Bernardo in Parañaque sometime in September, 1988. On that occasion, Bernardo referred to them as the new group tasked to kidnap Paul.
Gallarza declared:
Q You said there were four policemen whom you remember, . . . you identified two what about the other two, will you see if they are around?
A None, sir.
Q Do you know the names or nickname of these two other policemen?
A Reynaldo Palumbarit and Daniel Borja. (t.s.n., January 12, 1989, pp. 50-52, 55-56.)
Neither Paul nor Gallarza had any ulterior motive to falsely testify against Pulongbarit, a policeman who can make things difficult for Paul and Gallarza.
Then, too, Pulongbarit's flight after the incident is a strong indication of guilt because if he were really innocent he would have stood ground. The fact that no part of the ransom money was recovered from or traced to him does not rule out his culpability. Positive evidence was adduced upon which his guilt was established to a moral certainty.
Also invoking alibi, Ignacio insists that at the time of the kidnapping he was at Station 8, WPD, Sta. Mesa, Manila and could not have participated in the abduction of Paul at Better Living Subdivision, Parañaque, Metro Manila.
It is almost trite to refer to the rule that for alibi to prosper, it is not enough to prove that the accused was somewhere else when the crime was committed but it must likewise be demonstrated that he was so far away that he could not have been physically present at the place of the crime or its immediate vicinity at the time of its commission (People vs. Cadag, 208 SCRA 781 [1992]). Ignacio's alleged presence at Sta. Mesa, Manila could not have prevented him from being at Better Living Subdivision, Parañaque which could be traversed in thirty minutes. He was positively identified by Paul himself as one of his abductors who blocked his car and, at gun-point, forced him out of his car and pushed him inside a Colt Galant car, to wit:
Q You said that you looked back and you saw the blue car, what was your purpose in looking back?
A Because I got nervous when I saw the car stopped infront of me, I look back and tried to reverse my gear and I saw a blue car.
Q After you saw the blue car, what else happened?
A One person alighted from the blue car right away, sir.
Q Did you recognize the person who alighted from the blue car?
A Yes, sir.
Q If that person is inside the court room would you be able to point to him?
A Yes, sir.
Q Please point to the person who alighted from the blue car.
A He is the one, sir.
Interpreter:
Witness pointed to a male person inside the courtroom when asked his name gave as P/Cpl. Melquiades Ignacio.
xxx xxx xxx
Q You said four persons alighted from the blue car, by these four persons, to whom are you referring?
A . . . one of them is already here, sir.
Q Who is that . . .?
A Melquiades Ignacio, sir. (t.s.n., May 18, 1989, pp. 37-39).
Ignacio was also positively identified by Gallarza as one of the four policemen who was introduced to him by Bernardo in Parañaque sometime in September, 1988. Bernardo referred to them as the new group engaged to kidnap Cruz.
In his testimony, Gallarza declared:
Q And when you enter that particular house, what did Rodolfo Bernardo do?
A We joined the drinking because the people we saw inside were drinking.
Q Who were those drinking, if some of them are inside the court room, will you be able to point to them?
A Yes, sir. Only two of them.
Q Will you please touch their shoulders?
A Yes, sir.
Interpreter:
. . . witness tapped the shoulder of another male person inside the court room who, when asked his name, gave Cpl. Melquiades Ignacio.
Q What are their alias as they were introduced to you by Boy Bernardo?
A . . . Meliton . . . .
Q . . . to whom are you referring to when you mentioned the name Meliton?
A He is the one, sir, beside him.
Interpreter:
Witness again pointed to a male from inside the court room who was identified earlier as Cpl. Melquiades Ignacio. (tsn, January 12, 1989, pp. 50-56.)
Further, Paul testified on the incriminating acts and statements made by Ignacio himself and his wife Beth immediately after Ignacio's arrest, to wit:
Q Were you introduced to each other, I mean Beth Ignacio and you?
A Yes, because she was crying, then, sir.
Q What happened after she was introduced to you?
A They told me that if we are going to get a state witness to get her husband Mel Ignacio, sir.
Q Who offered Mel Ignacio to be a state witness?
A His wife, Beth Ignacio, sir.
Q What was your answer?
Paul Cruz remembered and he was later able to identify his abductors. He was able also to recollect details regarding the cars used (tsn, June 5, 1989, pp. 56, 59, 65-67; June 6, 1989, pp. 115-116). The testimony of Paul remains unimpeached and unrebutted and nothing can assail his descriptions of his abductors and the cars they used.
Gallarza's testimony was likewise firm and no evidence was presented to show that he was tortured, forced, or otherwise intimidated to testify against accused-appellants.
Of the five known persons charged, Danilo Borja was never tried for he has remained at large. He will be entitled to a separate trial as soon as he is apprehended (p. 121, Rollo). Francisco Victoria, on the other hand, escaped after his arraignment and he was allegedly shot to death by elements of the PC Military Police in an encounter on October 28, 1990 in San Rafael, Bulacan. Trial against Victoria thus proceeded even in his absence, during which he, of course, failed to present evidence in his behalf (pp. 151 and 157, Rollo).
Withal, the lower court committed no error in finding accused-appellants guilty beyond reasonable doubt of the crime of kidnapping for ransom.
WHEREFORE, the appeal is hereby dismissed and the decision of the court a quo affirmed in toto.
SO ORDERED.
Feliciano, Bidin, Davide, Jr. and Romero, JJ., concur.
Gutierrez, Jr., J., is on leave.
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}101004_03_93_footnotes>mainG.R. No. 101004 March 17, 1993
PEOPLE OF THE PHIL. vs. RAUL PONFERADA , ET AL.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 101004 March 17, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RAUL PONFERADA AND EDUARDO BELTRAN (AT LARGE), accused, RAUL PONFERADA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
CAMPOS, JR. J.:
This is an appeal from the decision * of the Regional Trial Court, Branch 8, Eighth Judicial Region, Palo, Leyte, convicting accused-appellant Raul Ponferada of violating Article II, Section 4 of Republic Act No. 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972.
On August 31, 1989, the City Prosecutor filed the following information accusing Eduardo Beltran and Raul Ponferada of Violation of Article II, Section 4 of Republic Act No. 6425, as amended:
That on or about the 11th day of July, 1989, in the City of Tacloban, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did then and there wilfully, unlawfully and feloniously sell, deliver or distribute Six (6) sticks of marijuana cigarettes valued in the amount of Twenty (P20.00) Pesos to a Narcom Informant, the said marijuana cigarettes, being a prohibited drug.
CONTRARY TO LAW.
1
On October 18, 1989, a warrant for the arrest of the two accused was issued.
2 Said warrant was however not served and this case was archived until such time that the accused can be arrested. 3
On January 26, 1990, an alias warrant of arrest was issued.
4
Accused Raul Ponferada was arrested on March 15, 1990 and detained at the Tacloban City Jail as per return by Major Edwin y Barlongay.
5 Accused Eduardo Beltran remained at large.
Upon arraignment, accused Raul Ponferada, assisted by his counsel, pleaded not guilty to the offense charged in the information.
6
Trial ensued only as against accused Raul Ponferada.
The prosecution presented the following as witnesses: Constable First Class (CIC) Pruz Mallari, the poseur-buyer; Sgt. Romeo Rabuya, the team leader and Captain Liza Sabong, the forensic chemist. On the other hand, accused Raul Ponferada was the lone witness for the defense.
As gathered from the testimonies of prosecution witnesses Sgt. Rabuya and CIC Pruz Mallari, it appears that on or about 3:00 o'clock in the afternoon of July 11, 1989, Major Edwin Barlongay, commanding officer of the Narcotics Command, received a report from their confidential informant that a certain alias "Raul" and a certain alias "Boyet" are active in selling marijuana at the PHHC Seaside, Tacloban City.
7
Major Barlongay then formed a team, headed by Sgt. Romeo Rabuya, to verify the report.
8 Also part of said team was CIC Pruz Mallari. At 4:00 o'clock in the afternoon of the same day, the team and the confidential informant proceeded to the PHHC, Seaside, Tacloban City, to conduct a buy-bust operation 9 with CIC Pruz Mallari acting as the poseur-buyer.
CIC Pruz Mallari who acted as poseur-buyer testified that upon arriving at the PHHC Seaside, Sgt. Rabuya and the civilian informer positioned themselves somewhere while he was looking for the suspect alias "Boyet". He was able to find alias "Boyet" more or less six (6) to ten (10) meters from where his companions were. There were tall plants that obstructed his vision. He was introduced by the civilian informer to alias "Boyet" with the former informing the latter that he was interested in buying marijuana sticks. When asked how much, he said he was willing to buy twenty pesos (P20.00) worth. He gave P20.00 to alias "Boyet".
10 Alias "Boyet" left towards the direction of Tacloban aboard a motorcycle. Later, alias "Boyet" arrived together with alias "Raul". Alias "Raul" was about three (3) meters away from where he and alias "Boyet" were conversing. 11 After receiving the sticks of marijuana cigarettes, he gave the pre-arranged signal of scratching his head with his right hand. Thereafter, his companions and Sgt. Rabuya immediately approached them. Sgt. Rabuya informed alias "Boyet" and "Raul" that they are being arrested because of selling illegal drugs. 12 However, alias "Boyet" thrust his bolo at Sgt. Rabuya but the latter was able to parry it. Alias "Boyet" and Alias "Raul" ran away. At that time, he did not know the complete names of Alias "Boyet" and alias "Raul" It was only after inquiring from the accused's neighbors did he come
to learn that alias "Boyet" is Eduardo Beltran while alias "Raul" is Raul Ponferada. 13
On the other hand, Sgt. Rabuya testified that it was alias "Raul" or Raul Ponferada who transacted with the poseur-buyer. It was also alias "Raul" who tried to stab him. He saw CIC Mallari approach alias "Raul" who, after a short conversation, handed the marked money to the latter. After receiving the money, alias, "Raul" boarded a tricycle and left to the direction of where his "barkadas" were standing which was more or less fifty (50) meters away from where CIC Mallari was.
14 At that instance, he followed alias "Raul" with his motorcycle but halted at about ten (10) meters away from where alias "Raul" stopped. 15 There he saw alias "Raul" giving the marked money to alias "Boyet". The two then went back on board a motorcycle to where CIC Mallari was waiting. Alias "Raul" gave the six (6) sticks of marijuana cigarettes to CIC Mallari, afterwards the latter made the pre-arranged signal. He immediately rushed to scene of the transaction and tried to effect the arrest of the two suspects. However, alias "Raul" drew his pointed dagger, aimed it at him but he was able to parry it. Thereafter, alias "Raul" and alias "Boyet" fled. He received the six (6) sticks of marijuana cigarettes from CIC Mallari. 16 Like CIC Mallari, he came to know of the names of alias "Raul" and alias "Boyet" only from their neighbors.
Accused-appellant has a different version of what transpired on July 11, 1989. He testified that he was a fish vendor at the Old Tacloban Supermarket. At about 3:00 o'clock in the afternoon of that day, he was at the PHHC Seaside, around 200 meters from the National Highway. He had just delivered fish to one Elvira Price. While waiting for a motorcycle to take him back to the supermarket, he was approached by one Sgt. Rabuya who inquired from him whether he knew a person in the name of Eduardo Beltran. He said he did. While conversing with Sgt. Rabuya, Eduardo Beltran passed by but ran away upon being approached by Sgt. Rabuya. Sgt. Rabuya fired his gun and followed Eduardo Beltran to the house of the latter's father-in-law which was 100 meters away from where they were. Not finding him there, Sgt. Rabuya returned to the accused and invited the same to the police headquarters for questioning. After which, Sgt. Rabuya sent him home. He knew Eduardo Beltran because the latter married a woman from PHHC which place he has resided until 1987.
17 On March 1, 1989, while doing his job at the Supermarket, he was fetched and brought to RTC Stage, the Narcom office, by a certain Booting, a civilian informant. This was at the instance of Sgt. Agner, Sgt. Rabuya and CIC Mallari were not at the Narcom office. He was then placed in jail and was ordered to stay there because Eduardo Beltran has not yet been arrested. 18
From the foregoing testimonies, the trial court, on December 7, 1990, rendered its decision finding accused Raul Ponferada guilty beyond reasonable doubt of the offense charged, the dispositive portion of which reads as follows:
WHEREFORE, in view of the foregoing, the accused, Raul Ponferada is found guilty beyond reasonable doubt of delivery of six (6) sticks of marijuana cigarettes, a prohibited drug, Article II of Republic Act No. 6425, as amended, and hereby sentences him to suffer life imprisonment as well as to pay a fine of TWENTY THOUSAND PESOS (P20,000.00) without subsidiary imprisonment, in case of insolvency. (As amended P.D. 1675, Feb. 17, 1980).
He shall be credited with the preventive imprisonment undergone by him subject to the conditions prescribed by Article 29 of the Revised Penal Code, as amended.
SO ORDERED.
19
Aggrieved by the trial court's decision, accused Raul Ponferada comes to Us alleging the following assignment of errors:
20
I
THE TRIAL COURT ERRED IN GIVING WEIGHT AND CREDENCE TO THE CONTRADICTING TESTIMONIES OF THE PRINCIPAL PROSECUTION WITNESSES IN IDENTIFYING ACCUSED RAUL PONFERADA.
II
THE TRIAL COURT ERRED IN CONVICTING ACCUSED RAUL PONFERADA DESPITE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
Accused-appellant assails the credibility of prosecution witnesses Sgt. Rabuya and CIC Mallari for their failure to identify him with certainty. He contends that the testimonies of the two principal government witnesses are diametrically opposed in identifying him. Sgt. Rabuya claimed that it was accused Raul Ponferada or alias "Raul" who made the transaction with CIC Mallari while on the other hand, CIC Mallari testified that it was Eduardo Beltran or alias "Boyet" who sold to him the six (6) sticks of marijuana cigarettes.
21
We agree with the accused-appellant's contention.
This Court has laid down the rule that although it ordinarily relies on the factual findings of the trial court, recognizing its superior competence to assess the credibility of the witnesses through direct observation of their manner on the stand,
22 this policy will not be applied where the prosecution has not sufficiently established the guilt of the accused-appellant to the point of overcoming the constitutional presumption of innocence in his favor. 23 We find this doctrine to be very much applicable in the case at bar.
In People vs. Dekingco,
24 this Court held that:
. . . In order to sustain conviction for selling prohibited drugs, the element of sale must be unequivocally established. Also, what the law proscribes is not only the act of selling but also, albeit not limited to, the act of delivering. The commission of the offense of illegal sale of marijuana required merely the consummation of the selling transaction. What is important is that the poseur-buyer received the marijuana from the accused.
In the case at bar, poseur-buyer CIC Mallari identified Eduardo Beltran alias "Boyet" as the person who sold to him the six (6) sticks of marijuana cigarettes. There was no evidence linking Raul Ponferada to the sale of marijuana cigarettes. The trial court, however, convicted him for the delivery of marijuana cigarettes.
A careful perusal of the evidence reveals that the prosecution witnesses miserably failed to prove that the accused-appellant delivered said marijuana cigarettes to the poseur-buyer CIC Mallari.
From the testimony of the poseur-buyer, the only instance wherein the name alias "Raul" was mentioned was when alias "Boyet" returned, bringing the six (6) sticks of marijuana cigarettes accompanied by alias "Raul". They were then on board a motorcycle. This circumstance alone does not prove delivery on the part of alias "Raul" or Raul Ponferada. The mere fact that they were together does not of itself prove that alias "Raul" had a hand in the delivery of the marijuana cigarettes absent any other concrete evidence linking him thereto.
Moreover, CIC Mallari testified that when alias "Boyet" or Eduardo Beltran gave him the marijuana cigarettes, alias "Raul" or Raul Ponferada was three (3) meters away from them.
25 Hence, it cannot be said with certainty that Raul Ponferada was the one who delivered the marijuana cigarettes.
Neither is the testimony of Sgt. Rabuya of any help to the prosecution's case. His testimony materially contradicted that of poseur-buyer CIC Mallari's as to the identities of the accused. While Sgt. Rabuya identified alias "Raul" or Raul Ponferada as the one who transacted with CIC Mallari, the latter positively and categorically identified alias "Boyet" or Eduardo Beltran as the person who sold and delivered to him the marijuana cigarettes.
We find the contention of Sgt. Rabuya that the accused Raul Ponferada changes his aliases from "Boyet" to "Raul" so as to mislead the government agents in identifying him a mere afterthought. Such fact was divulged by Sgt. Rabuya for the first time only when he was made to explain the discrepancy between his testimony and affidavit as to who transacted with the poseur-buyer and tried to stab him (Sgt. Rabuya). In his testimony, he identified that person as Raul Ponferada or alias "Raul" while in his affidavit, he identified said person as Eduardo Beltran or alias "Boyet".
Neither did he mention such fact in his affidavit which he personally prepared and typed.
26
The general rule has always been that discrepancies between the statements of the affiant in his affidavit and those made by him on the witness stand do not necessarily discredit him since ex parte affidavits are generally incomplete. Affidavits are generally subordinated in importance to open Court declarations because they are oftentimes executed when an affiant's mental faculties are not in such a state as to afford him a fair opportunity of narrating in full the incident which has transpired. Further, affidavits are not complete reproductions of what the declarant has in mind because they are generally prepared by the administering officer and the affiant simply signs them after the same have been read to him.
27
The exception to the above rule is where the omission in the affidavit refers to a very important detail such that the affiant would not have failed to mention it,
28 and which omission could affect the affiant's credibility. 29
The identities of the accused are points so material in the evidence of the prosecution that Sgt. Rabuya's failure to mention the switching in their aliases, as he belatedly claims was a tactic employed by the accused to mislead the authorities, cannot be taken merely as insignificant.
WHEREFORE, the appealed decision is REVERSED and SET ASIDE. The accused-appellant is ACQUITTED and ordered immediately released unless he is detained for some other cause.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Nocon, JJ., concur.
#
Footnotes
* Penned by Judge Lolita O. Gal-lang.
1 Records, p. 1.
2 Ibid., p. 14.
3 Ibid., p. 15.
4 Ibid., p. 17.
5 Ibid., p. 18.
6 Ibid., p. 32.
7 TSN, July 3, 1990, p. 2.
8 Ibid.
9 Ibid.
10 TSN, July 4, 1990, p. 4.
11 Ibid., p. 5.
12 Ibid., p. 6.
13 Ibid., p. 7.
14 TSN, July 3, 1990, p. 3.
15 Ibid., p. 7.
16 Ibid., p. 5.
17 Ibid., p. 4.
18 Ibid., p. 6.
19 Records, p. 68.
20 Appellant's Brief, p. 1.
21 Ibid., p. 10.
22 People vs. Tereso, 194 SCRA 154 (1991).
23 Ibid.
24 189 SCRA 512 (1990), citing People vs. Fernandez, et al., 186 SCRA 830 (1990), People vs. Ramos, 186 SCRA 184 (1990), People vs. de la Cruz, et al., 184 SCRA 415 (1990).
25 TSN, July 4, 1990, p. 5.
26 Exh. 1, p. 5; TSN, July 3, 1990, p. 9.
27 People vs. Dumpe, 183 SCRA 547, 553 (1990), citing People vs. Gonzales, 99 SCRA 697 (1980) and 2 REGALADO, REMEDIAL LAW COMPENDIUM,
p. 558.
28 People vs. Anggot, 105 SCRA 168, 175 (1981).
29 Supra, note 27.
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}101689_03_93_footnotes>mainG.R. No. 101689 March 17, 1993
CARLITO U. ALVIZO vs. SANDIGANBAYAN
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 101689 March 17, 1993
CARLITO U. ALVIZO, petitioner,
vs.
THE SANDIGANBAYAN (THIRD DIVISION), respondent.
Sycip, Salazar, Hernandez & Gatmaitan for petitioner.
The Solicitor General for public respondent.
REGALADO, J.:
This petition for certiorari and prohibition with preliminary injunction seeks to annul and set aside the resolutions of respondent Sandiganbayan, dated November 22, 1990
1 and June 20, 1991, 2 for allegedly having been issued with grave abuse of discretion and in excess of jurisdiction, and to restrain respondent court from proceeding with petitioner's arraignment and trial in Criminal Case No. 14893 thereof.
The records show that in a communication dated May 4, 1989,
3 then Congressman Ernesto T. Estrella of the Second District of Surigao del Sur called the attention of then Secretary of Justice Sedfrey A. Ordoñez to the apparent inability of the Provincial Fiscal of Surigao del Sur to prosecute herein petitioner Carlito Y. Alvizo, who was then a member of the Surigao del Sur Sangguniang Panlalawigan. It appears that petitioner had been dismissed as Clerk of Court of the Court of First Instance of Surigao del Sur when he was found to have incurred a deficiency in his accounts in the amount of P31,612.50, pursuant to a decision of the Supreme Court in Administrative Matter No. 818-TEL, promulgated on April 18, 1979. Petitioners dismissal was without prejudice to his criminal prosecution. 4
Acting on Congressman Estrella's letter, on June 7, 1989 then Chief State Prosecutor Fernando de Leon, on behalf of Justice Secretary Ordoñez, referred the matter to the Provincial Fiscal of Surigao del Sur for appropriate action. Consequently, a preliminary investigation, docketed as OMB-0-89-01717, was conducted by Second Assistant Provincial Prosecutor Vicente L. Suarez who thereafter recommended the filing of an information for malversation against herein petitioner. This recommendation was, however, reversed by Provincial Prosecutor Pretextato Montenegro but whose recommendation was in turn overruled by Ombudsman Conrado M. Vasquez.
5 Thus, on May 17, 1990 an information 6 was accordingly filed with respondent Sandiganbayan, initiating the present Criminal Case No. 14893 which charges petitioner with malversation of public funds.
On August 29, 1990, petitioner filed a motion to quash the information
7 allegedly for failure of the same to include a certification by the investigating fiscal that he conducted a personal examination of the complainant and his witnesses during the preliminary investigation. Then, on October 17, 1990, petitioner filed a supplemental motion to quash 8 this time contending that the filing of the information in this case is violative of his constitutional rights to due process and the speedy disposition of the case against him, as enunciated in Tatad vs. Sandiganbayan, 9 in an obvious appeal to libertarian inclinations or affectations.
Petitioner avers therein that as early as 1979, a criminal investigation had already been commenced against him for malversation of public funds by the then Tanodbayan, which was docketed as TBP Case No. 8003-05-05. However, it was only on May 17, 1990, or twelve years after the initial preliminary investigation was conducted, that an information was filed against him with the Sandiganbayan. Hence, petitioner claims, by allowing the preliminary investigation to remain pending for eleven years without taking any action whatsoever, the Tanodbayan clearly violated his rights to due process and speedy disposition of his cases.
In a resolution promulgated on November 22, 1990, respondent Sandiganbayan denied petitioner's motion and supplemental motion to quash. Petitioner's motion for reconsideration was likewise denied in a resolution dated June 20, 1991.
Consequent thereto, petitioner is now before us contending that respondent court committed a grave abuse of discretion in denying his aforestated motions despite the timely objection to the lack of a certification in the information that the complainant and his witnesses had been personally examined by the investigating officer, and in spite of the inordinate delay in the filing of the information in violation of petitioner's constitutional rights to due process and speedy trial.
The petition is devoid of merit and the extraordinary writs sought by petitioner cannot justifiably issue.
Petitioner initially avers that the information is defective because it does not contain a certification by the investigating prosecutor that the latter personally examined the complainant and his witnesses, in contravention of the requirement under Section 4, Rule 112 of the Rules of Court which provides:
Sec. 4. Duty of the investigating fiscal. If the investigating fiscal finds cause to hold the respondent for trial he shall prepare the resolution and corresponding information. He shall certify under oath that he has examined the complainant and his witnesses, . . . .
Contrary to petitioner's submission, respondent court made a finding that the investigating officer who conducted the preliminary investigation personally examined the witness for the prosecution. Thus:
With respect to the ground raised in the Motion to Quash that the Certification appearing in the Information failed to state that the Special Prosecutor or any authorized officer has personally examined the complainant and his witnesses, the records of the Office of the Ombudsman disclose that Nereo A. Sales, COA Auditor, who examined the cash and accountabilities of the accused, was personally examined by Second Assistant Provincial Prosecutor Vicente L. Suarez of Surigao del Sur, by taking down his statement which the witness subscribed and swor(e) to before said assistant prosecutor on December 8, 1989, and who certified as follows:
THIS IS TO CERTIFY that I have personally examined the affiant and that I am satisfied that he voluntarily executed and understood his affidavit.
Actually, therefore, Second Assistant Provincial Prosecutor Vicente L. Suarez who conducted the preliminary investigation in this case personally examined the witnesses of the prosecution. That the fact was not stated in the Information itself is merely a formal defect which does not prejudice the substantial rights of the accused and, hence, does not warrant the quashal of the information. . . . .
10
It bears mention that this finding of the Sandiganbayan was never convincingly refuted nor controverted with cogency by herein petitioner.
The certification appearing in the information filed in Criminal Case No. 14893 of the Sandiganbayan reads as follows:
THIS IS TO CERTIFY that a preliminary investigation has been conducted in this case; that there is reasonable ground to engender a well-founded belief that the crime charged has been committed; and that the accused is probably guilty thereof.
11
Definitely settled is the rule that notwithstanding the absence in the information of a certification as to the holding of a preliminary investigation, the information is nonetheless considered valid for the reason that such certification is not an essential part of the information itself and its absence cannot vitiate it as such.
12 Accordingly, we held in People vs. Marquez 13 that:
. . . It should be observed that section 3 of Rule 110 defines an information as nothing more than "an accusation in writing charging a person with an offense subscribed by the fiscal and filed with the court." Thus, it is obvious that such certification is not an essential part of the information itself and its absence cannot vitiate it as such. True, as already stated, section 14 of Rule 112 enjoins that "no information . . . shall be filed without first giving the accused a chance to be heard in a preliminary investigation", but, as can be seen, the injunction refers to the non-holding of the preliminary investigation, not the absence of the certification. In other words, what is not allowed is the filing of the information without a preliminary investigation having been previously conducted, and the injunction that there should be a certification is only a consequence of the requirement that a preliminary investigation should first be conducted. . . .
In the case at bar, it is clear that there is a certification to the effect that a preliminary investigation had been conducted. What is allegedly lacking is the statement that the investigating prosecutor has personally examined the complainant and his witnesses. We find no compelling reason why the aforementioned doctrinal rules should not be made applicable to the present case where the alleged violation alluded to by petitioner merely consists of a failure to state compliance with a part of the proceedings involved in the conduct of a preliminary investigation, that is, the personal examination by the fiscal of the complainant and his witnesses but which examination was actually conducted. The fact alone that the certification contains a statement that a preliminary investigation had been conducted renders nugatory petitioner's arguments on the supposed nullity of the indictment.
We now proceed to the second issue raised by petitioner.
Invoking the ruling enunciated in the Tatad case, petitioner asseverates that his right to speedy trial has been violated when the information was filed before respondent court only after the lapse of eleven years from the time the preliminary investigation of the present criminal charge against him was supposedly conducted in 1979. Petitioner's theory is erroneously premised.
He insists that the preliminary investigation which led to the filing of the information in Criminal Case No. 14893 was commenced way back in 1979. But there is nothing in the records to show that indeed a preliminary investigation was initiated and/or conducted in that year. The documents
14 presented by petitioner purporting to be the records of the alleged earlier preliminary investigation do not show that such an investigation has in fact been conducted in 1979. If at all, a perusal thereof reveals that the documents merely contain a directive for the transmittal of the pertinent records to the investigating fiscal and an authority for him to conduct a preliminary investigation. It utterly fails, however, to establish that a preliminary investigation had been actually commenced and conducted.
For the same reason, and further based on negative considerations of both its admissibility and weight, neither does the additional evidence adduced on this score by petitioner advance his lost cause, as aptly demonstrated by respondent court in denying his motion for reconsideration:
. . . To support his said Motion for Reconsideration, the accused, per his Manifestation/Motion to Admit, dated December 20, 1990, submitted to this Court the Affidavit dated December 3, 1990 of the Provincial Prosecutor of Surigao del Norte, Hon. Quintin E.L. Paredes, who stated therein that sometime in 1980 when he was the Senior Deputized Tanodbayan Special Prosecutor of that province, he began the preliminary investigation of TBP Case No. 8003-05-05 against herein accused Carlito Alvizo, for malversation of funds; that he sent out subpoena(e) to witnesses but the complainant and his witnesses failed to appear; that eventually the then Tanodbayan, Hon. Vicente Ericta deputized the Provincial Fiscal of Surigao del Sur as Tanodbayan Special Prosecutor so that he forwarded the record of the case to said Tanodbayan in Manila who in turn directed the deputized Tanodbayan Prosecutor/Provincial Fiscal of Surigao del Sur, sometime in the middle of 1980, to conduct the preliminary investigation of this case against the herein accused. However, the said affidavit of Prosecutor Quintin E.L. Paredes is considered hearsay because he was not presented on the witness stand to be cross-examined by the prosecution; moreover, it has also to be taken with caution inasmuch as it was executed only on December 3, 1990 or after the promulgation of our Resolution of November 22, 1990 which is now sought to be reconsidered.
15
Perforce, the Tatad case may not properly be invoked in this case. There was no violation of petitioner's right to speedy trial for the simple reason that a fair and rational consideration on both counts of the aforestated evidence on record shows that the preliminary investigation in the present case was begun not in 1979 but only in 1989, and the corresponding information was in due time filed in 1990.
Nor are we persuaded by petitioner's pretension that in this case the prosecution arm of the Government allowed itself to be used for political purposes as to put this case within the ambit of the pronouncements in Tatad. The mere fact that here it was a congressman who called the attention of the then Secretary of Justice to the failure of the corresponding prosecutorial agency to comply with its duty, although that was pointedly indicated by this Court itself in Administrative Matter No. 818-TEL, does not mean that the prosecution spurred thereby was politically motivated. Assuming arguendo the existence of personal differences between petitioner and Congressman Estrella, the unassailable fact remains that the latter's communication to the Secretary of Justice primarily and justifiedly sought a clarification and gave a reminder of the directive of this Court which had not then been complied with.
Petitioner insistently harps on his main thesis that he was denied his constitutional right to the speedy disposition of his case. He admits, however, that delays per se are understandably attendant to all prosecutions and are constitutionally permissible,
16 with the monition that the attendant delay must not be oppressive. 17 Withal, it must not be lost sight of that the concept of speedy disposition of cases is a relative term and must necessarily be a flexible concept. 18 Hence, the doctrinal rule is that in the determination of whether or not that right has been violated, the factors that may be considered and balanced are the length of delay, the reasons for such delay, the assertion or failure to assert such right by the accused, and the prejudice caused by the delay. 19
While, regrettably, the prosecuting officers appear to have been enmeshed in bureaucratic ennui and miscommunications in pursuing the prosecution of this case, we are not oblivious of the confusion and handicaps under which they had to operate and with which they had to contend under a martial law regime during the parlous period material to this case. We take judicial cognizance of the frequent amendments of procedural laws by presidential decrees, the structural reorganizations in existing prosecutorial agencies and the creation of new ones by executive fiat,
20 resulting in changes of personnel, preliminary jurisdiction, functions and powers of prosecuting agencies.
Petitioner was definitely not unaware of the projected criminal prosecution posed against him by the indication of this Court as a complementary sanction in its resolution of his administrative case. He appears, however, to have been insensitive to the implications and contingencies thereof by not taking any step whatsoever to accelerate the disposition of the matter, which inaction conduces to the perception that the supervening delay seems to have been without his objection hence impliedly with his acquiescence.
We recognize the concerns often invoked that undue delay in the disposition of cases may impair the ability of the accused to defend himself,
21 the usual advertence being to the possible loss or unavailability of evidence for the accused. We do not apprehend that such a difficulty would arise here. The records of this Court in the administrative case earlier discussed refer to the same offense charged in the present criminal case, with identical facts and evidence being involved, aside from the significant consideration that the determinative evidence therein presented and which would necessarily be submitted in the prospective proceedings before respondent court are principally documentary in nature.
Consequently, whatever apprehension petitioner may have over the availability of such documents for his defense is inevitably shared in equal measure by the prosecution for building its case against him. This case, parenthetically, is illustrative of the situation that what is beneficial speed or delay for one side could be harmful speed or delay for the other, and vice-versa. Accordingly, we are not convinced at this juncture that petitioner has been or shall be disadvantaged by the delay complained of or that such delay shall prove oppressive to him. The just albeit belated prosecution of a criminal offense by the State, which was enjoined by this very Court, should not be forestalled either by conjectural supplications of prejudice or by dubious invocations of constitutional rights.
WHEREFORE, there being no showing that the impugned resolutions of respondent Sandiganbayan are tainted by grave abuse of discretion or jurisdictional defect, the instant petition is DISMISSED for lack of merit.
SO ORDERED.
Narvasa, C.J., Cruz, Padilla, Bidin, Griño-Aquino, Davide, Jr., Romero, Nocon, Bellosillo, Melo, Campos, Jr. and Quiason, JJ., concur.
Feliciano, J., took no part.
Gutierrez, Jr., J., is on leave.
#
Footnotes
1 Annex H, Petition; Rollo, 49.
2 Annex J, id.; ibid., 59.
3 Annex A, id.; ibid., 27.
4 In said administrative case, entitled "Re: Report on the Shortage of the Accountabilities of Clerk of Court Carlito U. Alvizo, respondent," the Court en banc held: "WHEREFORE, in view of the foregoing, the Court finds respondent Carlito U. Alvizo guilty of dishonesty and neglect of duty (Rule XVIII, Section 19 [c & g] of the Civil Service Rules and Regulations, and Section 1 (a & d], Presidential Decree No. 6), and hereby orders his DISMISSAL from the service, effective from the date of his suspension, with forfeiture of retirement gratuity, if any, with prejudice to reinstatement, and without prejudice to criminal prosecution."
Makasiar, J. concurred in a separate opinion as follows: "The act committed by respondent constitutes malversation of public funds penalized by Article 217 of the Revised Penal Code and he should accordingly be prosecuted, aside from being barred from reinstatement or re-employment in the government, its local political subdivisions, and other agencies, including government-owned or controlled corporations. Mere dismissal would be too lenient for such a serious crime and would place a premium on the commission of graft by public officers.
Hence, the dispositive portion should include "with prejudice to his reinstatement or re-employment in the government or any of its local political subdivisions or agencies, including government-owned or controlled corporations, but without prejudice to his criminal prosecution." (89 SCRA 426 [1979]; emphases supplied.)
5 Rollo, 8-9.
6 Annex C, Petition; Rollo, 31.
7 Annex F, id., ibid., 41.
8 Annex G, id., ibid., 45.
9 159 SCRA 70 (1988).
10 Rollo, 50-51.
11 Rollo, 34.
12 Estrella vs. Ruiz, etc., et al., 58 SCRA 779 (1974); People vs. Arbois, et al., 138 SCRA 24 (1985).
13 27 SCRA 808 (1969).
14 Rollo, 136-149.
15 Ibid., 60-61.
16 Beavers vs. Haubert, etc., 198 U.S. 77 (1905).
17 Pollard vs. United States, 352 U.S. 354 (1957).
18 See Bernas, The Constitution of the Republic of the Philippines, Vol. I, First Ed., 421.
19 Barker vs. Wingo, 407 U.S. 514 (1972).
20 For that matter, the Office of the Tanodbayan created by P.D. No. 1487 on June 11, 1978 was successively revised by P.D. No. 1607 on December 10, 1978, P.D. No. 1630 on July 18, 1979, and P.D. No. 1826 on January 16, 1981; and, thereafter, amended by E.O. No. 762 on January 8, 1982, E.O. No. 152-A on March 25, 1987, and E.O. No. 244 on July 24, 1987, until it was eventually replaced by the Office of the Ombudsman created by R.A. No. 6770 on November 17, 1989.
21 United States vs. Ewell, et al., 383 U.S. 116 (1966).
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}102045_03_93_footnotes>mainG.R. No. 102045 March 17, 1993
PEOPLE OF THE PHIL. vs. LUZ CARPIO VDA. DE QUIJANO, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 102045 March 17, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
LUZ CARPIO VDA. DE QUIJANO AND GERRY CAÑETE y VILLAS, accused-appellants.
The Solicitor General for plaintiff-appellee.
Custodio S. Sucaldito for accused-appellants.
CAMPOS, JR., J.:
The case at bar can very well qualify as an Agatha Christie thriller. A person is killed. Two persons are prime suspects but the authorities cannot pinpoint who was the murderer. Can the court convict all the suspects if the evidence fail to establish who stabbed the victim to death? For lack of evidence, direct or circumstantial, sufficient to prove their quilt beyond reasonable doubt, must all the accused be given the benefit of presumption of innocence? This is the dilemma which faces the Court in this case.
This is an appeal from the decision, * dated April 30, 1991, of the Regional Trial Court, National Capital Judicial Region, Branch 131, Kaloocan City, in Criminal Case No. C-34960, entitled "People of the Philippines v. Luz Carpio Vda. de Quijano and Gerry Cañete y Villas" finding appellant Luz Carpio guilty beyond reasonable doubt of the crime of parricide as defined and penalized under Article 246 of the Revised Penal Code, and appellant Gerry Cañete of Murder as defined and penalized under Article 248 thereof.
On May 21, 1990, an information for murder was filed by the Assistant City Prosecutor of Kalookan City against accused-appellants Luz Carpio Vda. de Quijano and Gerry Cañete y Villas for the death of one Renato Quijano.
On June 6, 1990, the Assistant City Prosecutor filed the following amended information to charge both accused-appellants of the crime of parricide instead of murder, committed as follows:
That on or about the 23rd day of April, 1990 in Kaloocan City, Metro-Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping with one another, without any justifiable cause, with deliberate intent to kill, with treachery and evident premeditation (sic), accused LUZ CARPIO VDA. DE QUIJANO being then legally married to one RENATO QUIJANO, did then and there wilfully, unlawfully stab with a bladed weapon said RENATO QUIJANO on the different parts of his body, thereby inflicting upon him serious physical injuries, which resulted in his death.
Contrary to Law.
1
On June 7, 1990, both accused-appellants, assisted by counsel-de-oficio, pleaded not guilty to the offense as charged in the amended information.
2
After trial on the merits, the trial court rendered its decision finding both accused-appellants guilty beyond reasonable doubt of the crime charged. The dispositive portion reads:
WHEREFORE, the Court finds accused Luz Carpio Vda. De Quijano GUILTY beyond reasonable doubt for the crime of PARRICIDE and accused Gerry Cañete y Villas GUILTY beyond reasonable doubt for the crime of MURDER qualified by treachery and sentences each of them to suffer RECLUSION PERPETUA; to jointly and severally pay the children of victim Renato Quijano the amount of Thirty Thousand (P30,000.00) Pesos as death indemnity and to pay the costs.
Considering that both accused are detention prisoners, the period of preventive imprisonment they may have undergone shall be credited in their favor.
SO ORDERED.
3
From the judgment of conviction, both accused appealed, assigning the following as the errors
4 allegedly committed by the trial court:
I
THE TRIAL COURT ERRED IN HOLDING THAT CONSPIRACY EXISTED BETWEEN ACCUSED LUZ CARPIO AND GERRY CAÑETE.
II
THE TRIAL COURT ERRED IN HOLDING THAT TREACHERY WAS EMPLOYED IN THE COMMISSION OF THE CRIME BY THE ACCUSED.
III
THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE TESTIMONY OF DOMINGA QUIJANO, RUBEN MADRIAGA AND RICKY JELLY.
IV
THE TRIAL COURT ERRED IN TAKING THE TESTIMONY OF THE SON, RICHARD QUIJANO, OVER THE OBJECTIONS OF DEFENSE COUNSEL.
V
THE TRIAL COURT ERRED IN CONVICTING BOTH ACCUSED, LUZ CARPIO AND GERRY CAÑETE.
The Solicitor General summarized the People's version thus:
At about 12:30 o'clock in the morning of April 23, 1990, appellant Gerry Cañete and an unidentified man arrived at the house of appellant Luz Carpio and her husband Renato Quijano in LRT Sawata, Dagat-Dagatan, Maypajo, Caloocan City. Appellant Luz Carpio, apparently expecting her co-appellant, readily opened the door for him and his companion who immediately sneaked inside, and she thereafter closed it. Later at about 1:30 o'clock, Barangay Tanods Ruben Madriaga, Rodolfo Garcia, Roberto Mercado, and Conrado Oreta, who had been in front of the house, heard "banging sounds, 'Kalabugan'" coming from the house, prompting them to run to their Barangay outpost to seek assistance. When they returned to the house at about 2:00 o'clock, the tanods saw appellant Luz Carpio sitting where they had been sitting before they left and the door of the house open. Instinctively, the tanods peeped through the open door and saw appellant Luz Carpio's husband, Renato Quijano, sprawled dead on the floor of the living room. Consequently, the police was notified and Corporal Paulino T. Baterina arrived to investigate. He observed that the body of the deceased bore two (2) stab wounds each on both sides of the chest and two (2) more stab wounds on the abdomen (TSN, August 21, 1990, pp. 4-22). Ricky Jelly, a neighbor, testified at the trial on November 13, 1990 that "at about 1:30 o'clock in the morning of April 23, 1990, he went to the store of accused Luz Carpio to buy cigarette . . . when he saw the barangay tanods running . . ., and fearing that something unusual was happening, hid in the dark . . . and saw after about three (3) minutes accused Cañete emerging from the house of the victim, wearing pants only and holding a knife . . ." (Appellants' Brief, p. 4).
Two days before the incident (April 21), the deceased had confided to his sister, Dominga Quijano, that his wife, appellant Luz Carpio, and appellant Gerry Cañete were having an illicit relationship, because he saw them kissing (TSN, November 12, 1990, pp. 7-8). The next day (April 22), appellants met and talked while holding hands at Luneta Park. Appellant Luz Carpio was accompanied by her son, Richard, while appellant Gerry Cañete was with an unidentified man (Exh. H).
Autopsy on the cadaver of Renato Quijano was conducted by Dr. Alberto Reyes, Medico-Legal Officer of the National Bureau of Investigation, who later submitted an Autopsy Report (Exh. "B") with his findings (Exh. "B-1").
5
In convicting both accused, the trial court based its decision on the following circumstantial evidence:
a) The testimony of Dominga Quijano to the effect that two days before her brother Renato was killed, the latter confided to her that his wife (accused Carpio) was having an illicit affair with accused Cañete (TSN, November 12, 1990, page 3);
b) The statement of Richard Quijano, the second eldest son of victim Quijano and accused Carpio, to the effect that one day before his father was killed, his mother (accused Carpio) and accused Cañete, in his presence, were holding each others hands somewhere in Luneta (Exh. "H");
c) The testimony of Ruben Madriaga that he in the company of Conrado Oreta, Rodolfo Garcia and Roberto Mercado have seen the arrival of accused Cañete and his male companion in the house of the victim one hour before victim Quijano was killed and further have seen accused Carpio opened their door and allow accused Cañete and his companion to entered (sic) their house during that unholy hour (TSN, August 21, 1990, pages 19-20);
d) The testimony of Rick Jelly that at past 12:30 in the early morning of April 23, 1990, he had seen accused Cañete holding a balisong and in the company of one male companion, was walking very fast and departing from the house of victim Quijano (TSN, October 23, 1990, page 5);
e) The testimony of P/Cpl. Paulino Batarina that immediately before this killing incident took place, he, thru the policemen assigned at the follow up unit, failed to locate accused Cañete in his residence (TSN, August 21, 1990, page 8);
f) That accused Cañete was arrested on May 18, 1990 in the store/residence of accused Carpio (Exh. "K").
6
The trial court ruled that the prosecution was able to establish that accused Luz Carpio and Gerry Cañete conspired together in killing the victim.
We do not agree.
There was no showing that there was a previous agreement between the accused relating to the commission of the crime. The mere fact that the accused Luz Carpio and accused Gerry Cañete met at the Luneta Park does not prove that their meeting was prearranged nor was there any evidence as to what they talked about. The meeting could have been merely casual and unwarranted in which case a reasonable doubt as to conspiracy exists.
7 The circumstance that accused Luz Carpio opened the door to let accused Gerry Cañete and his unidentified male companion get inside their house at 12:30 o'clock in the morning of April 23, 1990 is not sufficient to establish conspiracy. Although proof of agreement may be inferred from the acts and conduct of the conspirators disclosing a common understanding among them with respect to the commission of the offense, 8 We have also invariably ruled that like the offense itself, conspiracy must be proved beyond reasonable doubt. 9
It is a basic principle of constitutional law that the accused shall be presumed innocent until the contrary is proved beyond reasonable doubt. Lacking such certainty, the trial court has the duty to render a verdict of acquittal.
10 The same degree of proof necessary to establish the crime is required to establish criminal conspiracy. 11 Although direct proof is not essential to establish conspiracy, it must be established by positive and conclusive evidence. And conviction must be founded on facts, not on mere inferences and presumptions. 12
Since the conviction of accused Luz Carpio was based on the presence of conspiracy which as stated earlier has not been proven beyond reasonable doubt and there being no other evidence linking her to the commission of the crime, the conviction of accused Luz Carpio of the crime of parricide must be reversed.
With respect to accused Gerry Cañete, the evidence pinpointing responsibility on him is circumstantial. Circumstantial evidence may be characterized as that evidence which proves a fact or series of facts from which the facts in issue may be established by inference. To sustain a conviction, Rule 133, Section 5 of the Rules of Court requires that: 1) there be more than one circumstance; 2) the facts from which the inferences are derived must be proven; and 3) the combination of all the circumstances is such that it will result in a conviction beyond reasonable doubt. The requisites must be complied with if circumstantial evidence is to be the basis for proof beyond reasonable doubt.
13
The following series of events constitutes sufficient circumstantial evidence on the basis of which guilt of the accused Cañete may be established:
a) that he and an unidentified male companion were seen entering the victim's house by prosecution witness Ruben Madriaga and his co-barangay officers at midnight of April 23, 1990 and that accused Carpio, wife of the victim, opened the door and let them inside the house;
b) that after the lapse of one hour, Ruben Madriaga and his
co-barangay officers heard banging sounds (Kalabugan) inside the house of the victim;
c) that he and an unidentified male companion were seen leaving the house of the victim by prosecution witness Rick Jelly at 1:30 o'clock in the morning of April 23, 1990 holding a knife and walking very briskly away from the house of the victim;
d) that five minutes after accused Cañete and an unidentified male companion left, Rick Jelly heard screaming and crying and found out that victim Renato Quijano was already dead; he died of stab wounds inflicted with a knife in the front part of his body;
e) that accused Cañete's whereabouts could not be found when police looked for him;
f) that he was finally arrested on May 18, 1990 in the store of accused Carpio;
g) that accused Cañete and Carpio were having an intimate affair.
Based on the circumstantial evidence presented by the prosecution witnesses, there were two men who entered and left the house of the victim in the morning of April 23, 1990, one of whom was accused Gerry Cañete. While the established facts do not entirely rule out the possibility that accused Cañete could himself have inflicted the fatal wounds, the Court cannot base his conviction upon mere conjecture. The accused, however, had the motive to do away with the victim because of his having an affair with the victim's wife. After the sound of commotion and physical violence was heard inside the house, Cañete came out of the house, holding a knife, and with his male companion walked hurriedly away from the victim's house. He could not be found days after, and his whereabouts were unknown until he was caught visiting his
co-accused in the latter's store 25 days later. It is a well-entrenched rule that "before conviction can be had upon circumstantial evidence, the circumstances proved should constitute an unbroken chain which leads to one fair and reasonable conclusion pointing to the defendant, to the exclusion of all others, as the author of the crime".
14 In this case the circumstantial evidence presented by the prosecution point to the accused Cañete as having committed the crime charged, and to no other person.
While the fact of death has been established by the production of the dead body, the prosecution has established an unbroken chain of circumstances, which make Us conclude reasonably and positively that the accused Cañete is indeed the guilty person.
The facts as established dispel any doubt regarding the guilt of the accused Gerry Cañete for the death of Vicente Quijano committed at the latter's residence. There was, however, no evidence that the killing was committed with treachery or evident premeditation that would qualify the crime to murder.
WHEREFORE, for reasons indicated, We find the accused GERRY CAÑETE guilty beyond reasonable doubt of the crime of Homicide and sentences him to a penalty of Reclusion Temporal. Applying the Indeterminate Sentence Law, the accused is hereby sentenced to a penalty of imprisonment the minimum of which is eight (8) years and one (1) day of prision mayor and a maximum of fourteen (14) years, eight (8) months and one (1) day of Reclusion Temporal, and to indemnify the heirs of the victim Renato Quijano in the amount of P50,000.00. For failure of the prosecution to establish the guilt of LUZ CARPIO VDA. DE QUIJANO for the crime of parricide, the decision with respect to her is REVERSED, said accused is ACQUITTED of the crime charged and is ordered immediately released unless she is being held for other legal causes.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Nocon, JJ., concur.
#
Footnotes
* Penned by Judge Antonio J. Fineza.
1 Records, p. 2.
2 Records, p. 6.
3 Decision, p. 10; Records, p. 135.
4 Appellants' Brief, p. 10.
5 Appellee's Brief, pp. 2-5.
6 Decision, pp. 7-8; Records, pp. 132-133.
7 Siton vs. Court of Appeals, 204 SCRA 473 (1991).
8 Ibid.
9 Ibid. See also People vs. Saavedra, 149 SCRA 610 (1987).
10 People vs. Macasinag, 173 SCRA 292 (1989).
11 People vs. Drilon, Jr., 123 SCRA 72 (1983).
12 People vs. Martinez, 127 SCRA 260 (1984).
13 People vs. Songcuan, 176 SCRA 354 (1989).
14 People vs. Subano, 73 Phil. 692 (1942).
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}102300_03_93_footnotes>mainG.R. No. 102300 March 17, 1993
CITIBANK, N.A. vs. SEGUNDINO G. CHUA, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 102300 March 17, 1993
CITIBANK, N.A., petitioner,
vs.
HON. SEGUNDINO G. CHUA, SANTIAGO M. KAPUNAN and LUIS L. VICTOR, ASSOCIATE JUSTICES OF THE HON. COURT OF APPEALS, THIRD DIVISION, MANILA, HON. LEONARDO B. CANARES, Judge of Regional Trial Court of Cebu, Branch 10, and SPOUSES CRESENCIO AND ZENAIDA VELEZ, respondents.
Julius Z. Neri of J.P. Garcia & Associates for petitioner.
Raul M. Sesbreño for private respondents.
CAMPOS, JR., J.:
Petitioner is a foreign commercial banking corporation duly licensed to do business in the Philippines. Private respondents, spouses Cresencio and Zenaida Velez, were good clients of petitioner bank's branch in Cebu until March 14, 1986 when they filed a complaint for specific performance and damages against it in Civil Case No. CEB-4751 before the Regional Trial Court of Cebu, Branch 10.
Private respondents alleged in their complaint that the petitioner bank extended to them credit lines sufficiently secured with real estate and chattel mortgages on equipment. They claim that petitioner offered them special additional accommodation of Five Million Pesos (P5,000,000.00) to be availed of in the following manner:
a. Defendant would and did purchase check or checks from the plaintiffs by exchanging it with defendant's manager's check on a regular daily basis as reflected in the defendant's own ledger furnished to plaintiffs;
b. It was further agreed that on the following day, defendant CITIBANK would again purchase from the plaintiffs, check or checks, by exchanging the same with defendant's manager's check, which check, however, will be deposited by the plaintiffs with their other banks to cover the check or checks previously issued by the plaintiffs mentioned above;
c. The same regular and agreed activity would be undertaken by the plaintiffs and defendant CITIBANK herein every banking day thereafter;
1
This arrangement started on September 4, 1985 until March 11, 1986, when private respondents tried to exchange with petitioner bank six checks amounting to P3,095,000.00 but petitioner bank allegedly refused to continue with the arrangement even after repeated demands. Instead, petitioner bank suggested to private respondents that the total amount covered by the "arrangement be restructured to thirty (30) months with prevailing interest rate on the diminishing balance."
2 Private respondents agreed to such a proposal. Then as a sign of good faith, they issued and delivered a check for P75,000.00 in favor of petitioner bank which was refused by the latter demanding instead full payment of the entire amount.
For the failure of petitioner bank to comply with this restructuring agreement private respondents sued for specific performance and damages.
Petitioner bank has a different version of the business relationship that existed between it and private respondents. Thus:
. . . starting sometime on September 4 of 1985, he (private respondent Crescencio Velez) deposited his unfunded personal checks with his current account with the petitioner. But prior to depositing said checks, he would present his personal checks to a bank officer asking the latter to have his personal checks immediately credited as if it were a cash deposit and at the same time assuring the bank officer that his personal checks were fully funded. Having already gained the trust and confidence of the officers of the bank because of his past transactions, the bank's officer would always accommodate his request. After his requests are granted which is done by way of the bank officer affixing his signature on the personal checks, private respondent Cresencio Velez would then deposit his priorly approved personal checks to his current account and at the same time withdraw sums of money from said current account by way of petitioner bank's manager's check. Private respondent would then deposit petitioner bank's manager's check to his various current accounts in other commercial banks to cover his previously deposited unfunded personal checks with petitioner bank. Naturally, petitioner bank and its officers never discovered that his personal check deposits were unfunded. On the contrary, it gave the petitioner bank the false impression that private respondent's construction business was doing very well and that he was one big client who could be trusted. This deceptive and criminal scheme he did every banking day without fail from September 4, 1985 up to March 11, 1986. The amounts that he was depositing and withdrawing during this period (September 4, 1985 to March 11, 1986) progressively became bigger. It started at P46,000.00 on September 4, 1985 and on March 11, 1986 the amount of deposit and withdrawal already reached over P3,000,000.00. At this point in time (March 11, 1986), the private respondent Cresencio Velez presumably already feeling that sooner or later he would be caught and that he already wanted to cash in on his evil scheme, decided to run away with petitioner's money. On March 11, 1986, he deposited various unfunded personal checks totalling P3,095,000.00 and requested a bank officer that the same be credited as cash and after securing the approval of said bank officer, deposited his various personal checks in the amount of P3,095,000.00 with his current account and at the same time withdrew the sum of P3,244,000.00 in the form of petitioner's manager's check. Instead of using the proceeds of his withdrawals to cover his unfunded personal checks, he ran away with petitioner bank's money. Thus, private respondent Cresencio Velez's personal checks deposited with petitioner bank on March 11, 1986 in the total aggregate amount of P3,095,000.00 bounced. The checks bounced after said personal checks were made the substantial basis of his withdrawing the sum of P3,244,000.00 from his current account with petitioner bank.
3
Subsequently, on August 19, 1986, petitioner bank filed a criminal complaint against private respondents for violation of Batas Pambansa Blg. 22 (Bouncing Checks Law) and estafa (six counts) under Article 315 par. 2(d) of the Revised Penal Code. On April 28, 1988, the investigating fiscal recommended the filing of an information against private respondents for violations of the mentioned laws.
On June 13, 1989, petitioner bank submitted its answer to the complaint filed by private respondents. In the Order dated February 20, 1990, the case was set for pre-trial on March 30, 1990 and petitioner bank was directed to submit its pre-trial brief at least 3 days before the pre-trial conference. Petitioner bank only filed its pre-trial brief on March 30, 1990.
On March 30, 1990, the date of the pre-trial conference, counsel for petitioner bank appeared, presenting a special power of attorney executed by Citibank officer Florencia Tarriela in favor of petitioner bank's counsel, the J.P. Garcia & Associates, to represent and bind petitioner bank at the pre-trial conference of the case at bar.
Inspite of this special power of attorney, counsel for private respondents orally moved to declare petitioner bank as in default on the ground that the special power of attorney was not executed by the Board of Directors of Citibank. Petitioner bank was then required to file a written opposition to this oral motion to declare it as in default. In said opposition petitioner bank attached another special power of attorney made by William W. Ferguson, Vice President and highest ranking officer of Citibank, Philippines, constituting and appointing the J.P. Garcia & Associates "to represent and bind the BANK at the pre-trial conference and/or trial of the case of "Cresencio Velez, et al. vs. Citibank, N.A.".
4 In an Order dated April 23, 1990, respondent judge denied private respondents' oral motion to declare petitioner bank as in default and set the continuation of the pre-trial conference for May 2, 1990.
On the scheduled pre-trial conference, private respondents reiterated, by way of asking for reconsideration, their oral motion to declare petitioner bank as in default for its failure to appear through an authorized agent and that the documents presented are not in accordance with the requirements of the law. Petitioner bank again filed on May 14, 1990 its opposition thereto, stating as follows:
. . . While it has been the practice of Citibank to appoint its counsels as its attorney-in-fact in civil cases because it considers said counsels equivalent to a Citibank employee, yet, in order to avoid further arguments on the matter, the defendant Citibank will secure another power of attorney from Mr. William W. Ferguson in favor of its employee/s who will represent the defendant Citibank in the pre-trial conference of this case. As soon as the said special power of attorney is secured, the defendant will present it before this Honorable Court and in pursuance therewith, the defendant hereby makes a reservation to present such document as soon as available.
5
In compliance with the above promise, petitioner bank filed a manifestation, dated May 23, 1990, attaching therewith a special power of attorney executed by William W. Ferguson in favor of Citibank employees to represent and bind Citibank on the pre-trial conference of the case at bar.
6
On August 15, 1990, respondent judge issued an order declaring petitioner bank as in default. This order, received by petitioner bank on September 27, 1990, cited the following as reason for the declaration of default:
Defendant-bank, although a foreign corporation, is bound by Philippine laws when doing and conducting business in the Philippines (Sec. 129, B.P. Blg. 68), and its corporate powers could only be exercised by its Board of Directors (Sec. 23, B.P. Blg. 68). The exercise by the Board of Directors of such power could only be valid if it bears the approval of the majority of the Board (Sec. 25, par. 2, Corporation Code). The records does not show the requisite document. The alleged authority (Special Power of Attorney, Annex "A") executed by Mr. William W. Ferguson in favor of the alleged Citibank employees, assuming the same to be a delegable authority, to represent the defendant in the pre-trial conference, made no mention of J.P. Garcia & Associates as one of the employees of the defendant.
It stands to reason therefore, that the defendant-bank has no proper representation during the pre-trial conference on May 2, 1990 for purposes of Sec. 2, Rule 20 of the Rules of Court.
7
On October 1, 1990, petitioner bank filed a motion for reconsideration of the above order but it was denied on December 10, 1990.
Petitioner bank then filed a petition for certiorari, prohibition and mandamus with preliminary injunction and/or temporary restraining order with the Court of Appeals. On June 26, 1991, the Court of Appeals dismissed the petition on the following grounds:
. . . In the first place, petitioner admitted that it did not and could not present a Board resolution from the bank's Board of Directors appointing its counsel, Atty. Julius Z. Neri, as its attorney-in-fact to represent and bind it during the pre-trial conference of this case. This admission is contained on pages 12 and 13 of the instant petition.
In the second place, the "By-Laws" of petitioner which on its face authorizes (sic) the appointment of an attorney-in-fact to represent it in any litigation, has not been approved by the Securities and Exchange Commission, as required by Section 46 of the Corporation Code of the Philippines. Apparently, the "By-Laws" in question was (sic) approved under the laws of the United States, but there is no showing that the same was given the required imprimatur by the Securities and Exchange Commission. Since petitioner is a foreign corporation doing business in the Philippines, it is bound by all laws, rules and regulations applicable to domestic corporations (Sec. 129, Corporation Code).
In the third place, no special power of attorney was presented authorizing petitioner's counsel of record, Atty. Julius Neri and/or J.P. Garcia Associates, to appear for and in behalf of petitioner during the
pre-trial.
What petitioner exhibited to the court a quo was a general power of attorney given to one William W. Ferguson who in turn executed a power of attorney in favor of five (5) (sic) Citibank employees to act as attorney-in-fact in Civil Case No. CEB-4751. Yet, during the pre-trial not one of said employees appeared, except counsel who is not even a bank employee.
Furthermore, even assuming the validity of the power of attorney issued by petitioner in favor of Ferguson as well as the power of attorney he issued to five (5) (sic) Citibank employees, said power of attorney has not been shown to be a Special Power of Attorney precisely intended not only to represent the bank at the pre-trial of the case on a certain date but also to enter into any compromise as required in paragraph 3, Article 1978 of the Civil Code and Section l(a), Rule 20, Rules of Court.
8
Hence, this instant petition.
Petitioner bank contends that no board resolution was necessary for its legal counsel, Atty. Julius Z. Neri, or Citibank employees to act as its attorney-in-fact in the case at bar because petitioner bank's by-laws grant to its Executing Officer and Secretary Pro-Tem the power to delegate to a Citibank officer, in this case William W. Ferguson, the authority to represent and defend the bank and its interests.
Furthermore, it contends that the Court of Appeals erred in holding that the by-laws of petitioner bank cannot be given effect because it did not have the imprimatur of the Securities and Exchange Commission (SEC) as required by Section 46 of the Corporation Code of the Philippines.
Private respondents refute both contentions. They assail the authority of petitioner bank's legal counsel to appear at the pre-trial conference on two grounds, namely: first, that the authority did not come from the Board of Directors which has the exclusive right to exercise corporate powers; and second, that the authority granted to the Executing Officer in the by-laws was ineffective because the same were not submitted to, nor approved by, the SEC.
There are thus two issues in this case. First, whether a resolution of the board of directors of a corporation is always necessary for granting authority to an agent to represent the corporation in court cases. And second, whether the by-laws of the petitioner foreign corporation which has previously been granted a license to do business in the Philippines, are effective in this jurisdiction. If the by-laws are valid and a board resolution is not necessary as petitioner bank claims, then the declaration of default would have no basis.
In the corporate hierarchy, there are three levels of control: (1) the board of directors, which is responsible for corporate policies and the general management of the business affairs of the corporation; (2) the officers, who in theory execute the policies laid down by the board, but in practice often have wide latitude in determining the course of business operations; and (3) the stockholders who have the residual power over fundamental corporate changes, like amendments of the articles of incorporation. However, just as a natural person may authorize another to do certain acts in his behalf, so may the board of directors of a corporation validly delegate some of its functions to individual officers or agents appointed by it.
Section 23 of the Corporation Code of the Philippines in part provides:
Sec. 3. The board of directors or trustees. Unless otherwise provided in this Code, the corporate powers of all corporations formed under this Code shall be exercised, all business conducted and all property of such corporations controlled and held by the board of directors or controlled and held by the board of directors or trustees to be elected from among the holders of stocks, or where there is no stock, from among the members of the corporation, who shall hold office for one (1) year and until their successors are elected and qualified.
. . . . (Emphasis supplied).
Thus, although as a general rule, all corporate powers are to be exercised by the board of directors, exceptions are made where the Code provides otherwise.
Section 25 of said Code provides that the directors of the corporation shall elect its corporate officers, and further provides as follows:
Sec. 25. Corporate officers; quorum. . . . . The directors or trustees and officers to be elected shall perform the duties enjoined on them by law and by the by-laws of the corporation. . . . .
Furthermore, Section 47 of the same Code enumerates what may be contained in the by-laws, among which is a provision for the "qualifications, duties and compensation of directors or trustees, officers and employees". (Emphasis supplied)
Taking all the above provisions of law together, it is clear that corporate powers may be directly conferred upon corporate officers or agents by statute, the articles of incorporation, the by-laws or by resolution or other act of the board of directors. In addition, an officer who is not a director may also appoint other agents when so authorized by the by-laws or by the board of directors. Such are referred to as express powers.
9 There are also powers incidental to express powers conferred. It is a fundamental principle in the law of agency that every delegation of authority, whether general or special, carries with it, unless the contrary be express, implied authority to do all of those acts, naturally and ordinarily done in such cases, which are reasonably necessary and proper to be done in order to carry into effect the main authority conferred. 10
Since the by-laws are a source of authority for corporate officers and agents of the corporation, a resolution of the Board of Directors of Citibank appointing an attorney in fact to represent and bind it during the pre-trial conference of the case at bar is not necessary because its by-laws allow its officers, the Executing Officer and the Secretary Pro-Tem, * to execute a power of attorney to a designated bank officer, William W. Ferguson in this case, clothing him with authority to direct and manage corporate affairs. The relevant provision in the general power of attorney granted to him are as follows:
A. That the Executing Officer and the Secretary Pro-Tem are of full age, competent to act in the premises, to me personally known, and that they are authorized to execute this instrument by virtue of the powers granted to them pursuant to the By-Laws of the Bank and the laws of the United States of America, and that the Executing Officer said that he, on the one hand, hereby revokes and cancels any instrument of power of attorney previously executed on behalf of the Bank for use in the PHILIPPINES, in favor of WILLIAM W. FERGUSON (hereinafter referred to as the "Attorney-in-fact"), of legal age, a Banker, and now residing in the PHILIPPINES, and that he (the Executing Officer), on the other hand, does hereby authorize and empower the Attorney-in-fact, acting in the name or on behalf of the Bank, or any of its Branches, or any interest it or they may have or represent, said revocation and authorization to be effective as of this date and follows:
xxx xxx xxx
XVII. To represent and defend the Bank and its interest before any and all judges and courts, of all classes and jurisdictions, in any action, suit or proceeding in which the Bank may be a party or may be interested in administrative, civil, criminal, contentious or contentious-administrative matters, and in all kinds of lawsuits, recourses or proceedings of any kind or nature, with complete and absolute representation of the Bank, whether as plaintiff or defendant, or as an interested party for any reason whatsoever. . . . .
xxx xxx xxx
XXI. To substitute or delegate this Power of Attorney in whole or in part in favor of such one or more employees of the Bank, as he may deem advisable, but without divesting himself of any of the powers granted to him by this Power of Attorney; and to grant and execute in favor of any one or more such employees, powers of attorney containing all or such authorities, as he may deem advisable. . . . .
11
Since paragraph XXI above specifically allows Ferguson to delegate his powers in whole or in part, there can be no doubt that the special power of attorney in favor, first, of J.P. Garcia & Associates and later, of the bank's employees, constitutes a valid delegation of Ferguson's express power (under paragraph XVII above) to represent petitioner bank in the pre-trial conference in the lower court.
This brings us to the second query: whether petitioner bank's by-laws, which constitute the basis for Ferguson's special power of attorney in favor of petitioner bank's legal counsel are effective, considering that petitioner bank has been previously granted a license to do business in the Philippines.
The Court of Appeals relied on Section 46 of the Corporation Code to support its conclusion that the by-laws in question are without effect because they were not approved by the SEC. Said section reads as follows:
Sec. 46. Adoption of by-laws. Every corporation formed under this Code must, within one (1) month after receipt of official notice of the issuance of its certificate of incorporation by the Securities and Exchange Commission, adopt a code of by-laws for its government not inconsistent with this Code. For the adoption of by-laws by the corporation, the affirmative vote of the stockholders representing at least a majority of the outstanding capital stock, or of at least a majority of the members in the case of non-stock corporations, shall be necessary. The by-laws shall be signed by the stockholders or members voting for them and shall be kept in the principal office of the corporation, subject to the inspection of the stockholders or members during office hours; and a copy thereof, duly certified to by a majority of the directors or trustees and countersigned by the secretary of the corporation, shall be filed with the Securities and Exchange Commission which shall be attached to the original articles of incorporation.
Notwithstanding the provisions of the preceding paragraph, by-laws may be adopted and filed prior to incorporation; in such case, such by-laws shall be approved and signed by all the incorporators and submitted to the Securities and Exchange Commission, together with the articles of incorporation.
In all cases, by-laws shall be effective only upon the issuance by the Securities and Exchange Commission of a certification that the by-laws are not inconsistent with this Code.
A careful reading of the above provision would show that a corporation can submit its by-laws, prior to incorporation, or within one month after receipt of official notice of the issuance of its certificate of incorporation by the SEC. When the third paragraph of the above provision mentions "in all cases", it can only refer to these two options; i.e., whether adopted prior to incorporation or within one month after incorporation, the by-laws shall be effective only upon the approval of the SEC. But even more important, said provision starts with the phrase "Every corporation formed under this Code", which can only refer to corporations incorporated in the Philippines. Hence, Section 46, in so far as it refers to the effectivity of corporate by-laws, applies only to domestic corporations and not to foreign corporations.
On the other hand, Section 125 of the same Code requires that a foreign corporation applying for a license to transact business in the Philippines must submit, among other documents, to the SEC, a copy of its articles of incorporation and by-laws, certified in accordance with law. Unless these documents are submitted, the application cannot be acted upon by the SEC. In the following section, the Code specifies when the SEC can grant the license applied for, Section 126 provides in part:
Sec. 126. Issuance of a license. If the Securities and Exchange Commission is satisfied that the applicant has complied with all the requirements of this Code and other special laws, rules and regulations, the Commission shall issue a license to the applicant to transact business in the Philippines for the purpose or purposes specified in such license. . . . .
Since the SEC will grant a license only when the foreign corporation has complied with all the requirements of law, it follows that when it decides to issue such license, it is satisfied that the applicant's by-laws, among the other documents, meet the legal requirements. This, in effect, is an approval of the foreign corporation's by-laws. It may not have been made in express terms, still it is clearly an approval. Therefore, petitioner bank's by-laws, though originating from a foreign jurisdiction, are valid and effective in the Philippines.
In pursuance of the authority granted to him by petitioner bank's by-laws, its Executing Officer appointed William W. Ferguson, a resident of the Philippines, as its Attorney-in-Fact empowering the latter, among other things, to represent petitioner bank in court cases. In turn, William W. Ferguson executed a power of attorney in favor of J.P. Garcia & Associates (petitioner bank's counsel) to represent petitioner bank in the pre-trial conference before the lower court. This act of delegation is explicitly authorized by paragraph XXI of his own appointment, which we have previously cited.
It is also error for the Court of Appeals to insist that the special power of attorney, presented by petitioner bank authorizing its counsel, Atty. Julius Neri and/or J.P. Garcia & Associates, to appear for and in behalf of petitioner bank during the pre-trial, is not valid. The records do not sustain this finding. We quote with approval the contention of petitioner bank as it is borne by the records, to wit:
. . . The records of this case would show that at the start, the petitioner, thru counsel, presented a special power of attorney executed by then Citibank Officer Florencio (sic) J. Tarriela which was marked as Exhibit "1" in the pre-trial of this case. . . . . This is precisely the reason why the court denied, in an Order dated April 23, 1990 . . . the private respondent's oral motion to declare the defendant in fault. The said special power of attorney executed by Florencio (sic) J. Tarriela was granted by Mr. Rafael B. Buenaventura, who was then the Senior Vice-President of Citibank and the highest ranking officer of Citibank in the Philippines. Considering that at the time of the presentation of the said special power of attorney Rafael B. Buenaventura was no longer connected with Citibank, the petitioner again presented another special power of attorney executed by William W. Ferguson in favor of J.P. Garcia & Associates . . . .
Finding that the authority of William W. Ferguson to delegate his authority to act for and in behalf of the bank in any civil suit is limited to individuals who are employees of the bank the petitioner again on May 23, 1990 presented another special power of attorney dated May 16, 1990 wherein William W. Ferguson appointed as attorney-in-fact the following employees of petitioner, namely: Roberto Reyes, Nemesio Solomon, Aimee Yu and Tomas Yap. The said special power of attorney was filed and presented by the petitioner through its Manifestation filed in the Trial Court on May 23, 1990, . . . .
12
Under Rule 138, Section 23 of the Rules of Court, an attorney has authority to bind his client in any case by an agreement in relation thereto made in writing, and this authority would include taking appeals and all matters of ordinary judicial procedure. But he cannot, without special authority, compromise his client's litigation or receive anything in discharge of a client's claim but the full amount in cash. The special powers of attorney separately executed by Florencia Tarriela and William W. Ferguson granted to J.P. Garcia & Associates are very explicit in their terms as to the counsel's authority in the case at bar. We quote the relevant provisions of the special powers of attorney showing sufficient compliance with the requirements of Section 23, Rule 138, to wit:
That the BANK further authorized the said J.P. GARCIA & ASSOCIATES to enter into an amicable settlement, stipulation of facts and/or compromise agreement with the party or parties involved under such terms and conditions which the said J.P. GARCIA & ASSOCIATES may deem reasonable (under parameters previously defined by the principal) and execute and sign said documents as may be appropriate.
HEREBY GIVING AND GRANTING unto J.P. GARCIA & ASSOCIATES full power and authority whatsoever requisite necessary or proper to be done in or about the premises, as fully to all intents and purposes as the BANK might or could lawfully do or cause to be done under and by virtue of these presents.
13
It is also error on the part of the Court of Appeals to state that the power of attorney given to the four (4) Citibank employees is not a special power of attorney as required in paragraph 3, Article 1878 of the Civil Code and Section l(a), Rule 20 of the Rules of Court. In the case of Tropical Homes, Inc. vs. Villaluz,
14 the special power of attorney executed by petitioner bank therein contained the following pertinent terms "to appear for and in its behalf in the above-entitled case in all circumstances where its appearance is required and to bind it in all said instances". The court ruled that:
Although the power of attorney in question does not specifically mention the authority of petitioner's counsel to appear and bind the petitioner at the pre-trial conference, the terms of said power of attorney are comprehensive enough as to include the authority to appear for the petitioner at the pre-trial conference.
In the same manner, the power of attorney granted to petitioner bank's employees should be considered a special power of attorney. The relevant portion reads:
WHEREAS, the Bank is the Defendant in Civil Case No. CEB-4751, entitled "Cresencio Velez, et al. vs. Citibank, N.A.," pending before the Regional Trial Court of Cebu City, Branch X;
NOW, THEREFORE, under and by virtue of Article XXI of the Power of Attorney executed by the Bank in favor of the Attorney-in-Fact (Annex "A"), which provision is quoted above, the Attorney-in-Fact has nominated, designated and appointed, as by these presents he nominates, designates and appoints, as his substitutes and delegates, with respect to the said Power of Attorney, ROBERTO REYES, Vice President and/or NEMESIO SOLOMON, JR., Manager, AIMEE YU, Assistant Vice President and/or TOMAS YAP, Assistant Manager (hereinafter referred to as the "DELEGATES"), all of legal age, citizens of the Republic of the Philippines and with business address at Citibank Center, Paseo de Roxas, Makati, Metro Manila, Philippines, the Attorney-in-Fact hereby granting, conferring and delegating such authorities and binding the Bank in the
Pre-Trial Conference and/or Trial of the abovementioned case, pursuant to Rule 20 of the Revised Rules of Court, to the DELEGATES. The Attorney-in-Fact furthermore hereby ratifying and confirming all that the DELEGATES shall lawfully do or cause to be done under and by virtue of these presents.
15
From the outset, petitioner bank showed a willingness, if not zeal, in pursuing and defending this case. It even acceded to private respondents' insistence on the question of proper representation during the pre-trial, by presenting not just one, but three, special powers of attorney. Initially, the special power of attorney was executed by Florencia Tarriela in favor of J.P. Garcia & Associates, petitioner bank's counsel. Private respondents insisted that this was not proper authority required by law. To avoid further argument, a second special power of attorney was presented by petitioner bank, executed by William W. Ferguson, the highest ranking officer of Citibank in the Philippines, in favor of its counsel, J.P. Garcia & Associates. But since the authority to delegate of William W. Ferguson in favor of an agent is limited to bank employees, another special power of attorney from William W. Ferguson in favor of the Citibank employees was presented. But the respondent trial court judge disregarded all these and issued the assailed default order. There is nothing to show that petitioner bank "miserably failed to oblige"; on the contrary, three special powers of attorney manifest prudence and diligence on petitioner bank's part.
In fact, there was no need for the third power of attorney because we believe that the second power of attorney was sufficient under the by-law provision authorizing Ferguson to delegate any of his functions to any one or more employees of the petitioner bank. A reasonable interpretation of this provision would include an appointment of a legal counsel to represent the bank in court, for, under the circumstances, such legal counsel can be considered, and in fact was considered by the petitioner bank, an employee for a special purpose. Furthermore, Ferguson, who heads the Philippine office thousands of miles away from its main office in the United States, must be understood to have sufficient powers to act promptly in order to protect the interests of his principal.
We reiterate the previous admonitions of this Court against "precipitate orders of default as these have the effect of denying the litigant the chance to be heard. While there are instances, to be sure, when a party may be properly defaulted, these should be the exceptions rather than the rule and should be allowed only in clear cases of an obstinate refusal or inordinate neglect to comply with the orders of the court. Absent such a showing, the party must be given every reasonable opportunity to present his side and to refute the evidence of the adverse party in deference to due process of law".
16
Considering further that petitioner bank has a meritorious defense and that the amount in contest is substantial, the litigants should be allowed to settle their claims on the arena of the court based on a trial on the merits rather than on mere technicalities.
WHEREFORE, in view of the foregoing, the petition is hereby GRANTED. The decision of the Court of Appeals dated June 26, 1991 and its resolution denying the motion for reconsideration of petitioner bank dated September 26, 1991 are both REVERSED and SET ASIDE. The order of default issued on August 15, 1990 in Civil Case CEB-4751 of the Regional Trial Court of Cebu is ANNULLED and SET ASIDE and the case is hereby REMANDED to the court of origin for further proceedings.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Nocon, JJ., concur.
#
Footnotes
1 Annex "C" of Petition, pp. 1-2; Rollo, pp. 46-47.
2 Ibid., p. 48.
3 Petition, pp. 2-4; Rollo, pp. 4-6.
4 Annex "B" of Annex "F" of Petition, Rollo, p. 77.
5 Annex "H" of Petition, pp. 3-4; Rollo, pp. 91-92.
6 Roberto Reyes, Nemesio Solomon, Jr., Aimee Yu and Tomas Yap, Citibank employees duly constituted as attorneys-in-fact.
7 Order, Annex "J" of Petition, p. 2; Rollo, p. 98.
8 CA Decision, Annex "A" of Petition, pp. 4-5; Rollo, pp. 42-43.
9 FLETCHER, CYCLOPEDIA OF CORPORATIONS 320.
10 Id., p. 322.
* Jane Fuchs and Steinburg, respectively.
11 Annex "C" of Annex "F" of Petition, pp. 4-5; Rollo, pp. 177, 180-181.
12 Supra, note 3 at pp. 22-23; Rollo, pp. 24-25.
13 Rollo, pp. 69, 77.
14 170 SCRA 577, 582 (1989).
15 Annex "A" of Annex "I" of Petition, p. 2; Rollo, p. 95.
16 Leyte vs. Cusi, Jr. 152 SCRA 496, 497 (1987), also cited in Tropical Homes, Inc. vs. Villaluz, supra, note 14.
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}102722_03_93_footnotes>mainG.R. No. 102722 March 17, 1993
PEOPLE OF THE PHIL. vs. ARMIN BESANA
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 102722 March 17, 1993
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ARMIN BESANA, accused-appellant.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.
CAMPOS, JR., J.:
This is an appeal from the decision * of the Regional Trial Court, Sixth Judicial Region, Branch 30, Iloilo City, convicting the accused of the crime of Murder and sentencing him to suffer the penalty of Reclusion Perpetua and the accessory penalties provided for by law; to pay the heirs of Ananias Peñaflor, Jr. as indemnity for death the amount of P50,000.00; to reimburse the expenses of said heirs for the wake, funeral and burial of the deceased in the aggregate sum of P22,118.00, and to pay the costs.
The antecedents show that on May 5, 1989, at around 3:30 o'clock in the afternoon, in Barotac Nuevo, Iloilo, a Group of five (5) girls and five (5) boys, including the deceased, Ananias Peñaflor, Jr., was waiting for a bus ride to Anilao, their hometown, when accused Armin Besana came, looked at each one of them and then left, only to return a little later with two companions, his brothers Antonio and Victorino Besana.
1 Without any warning, the three brothers lunged at the five (5) boys and started boxing them while Ananias Peñaflor, Jr. tried to escape. 2 He was, however, overtaken by Armin Besana who immediately stabbed him with a knife. The two other brothers, Antonio and Victorino, likewise chased Ananias and took turns in stabbing him. 3 After which they fled, leaving Ananias sprawled on the ground in a pool of his own blood. Ananias expired even before he reached the hospital. The medico-legal certificate 4 showed that the cause of his death was massive externo-internal hemorrhage due to stab wounds.
For the death of Ananias Peñaflor, Jr., an Information for Murder was filed against accused Armin Besana charging him as follows:
That on or about May 5, 1989, in the municipality of Barotac Nuevo, province of Iloilo, Philippines and within the jurisdiction of this Court, the above-named accused armed with a knife, conspiring, confederating together and mutually helping with (sic) one another with ANTONIO BESANA alias "Tonette" and VICTORINO BESANA alias "Ne Boy", also armed with knives and are still at large, with intent to kill, evident premeditation and taking advantage of superior strength, did then and there wilfully, unlawfully and feloniously attack and stab ANANIAS PEÑAFLOR, JR. with the weapons they were then provided, inflicting upon him lacerated-stab wounds on the different parts of his body which caused his death.
CONTRARY TO LAW.
5
Only accused-appellant Armin Besana was arrested and charged because his two other brothers remain at large and no preliminary investigation has been conducted to determine their involvement in the stabbing of the victim.
Upon arraignment, accused-appellant pleaded not guilty to the crime charged. The trial court, however, ruled against him, hence, this appeal.
Accused-appellant's only defense is alibi. He proffers that he was playing mahjong in a place some two hundred (200) meters away from the scene of the crime at the time of the incident. He further avers that he was mistaken for his younger brother, Victorino Besana, who, he believes, is the one responsible for the killing of Ananias.
We do not agree.
In People vs. Antud,
6 We held that courts have always looked upon the defense of alibi with suspicion and always receive it with caution, not only because it is inherently weak and unreliable but also because of its easy fabrication. For alibi to serve as a basis for acquittal, it must be established by clear and convincing evidence. The requisites of time and place must be strictly met. The accused must show that he was at some other place where the crime was committed at the time of its commission. Appellant must be able to demonstrate by convincing evidence that it was physically impossible for him to have been at the scene of the crime at the time that it was committed. The foregoing two-fold requisites of alibi have not been met, in the case at bar. The place where accused-appellant was allegedly playing mahjong was only two hundred (200) meters away from the plaza where the stabbing incident took place. Accused-appellant himself admitted that he can negotiate the distance between the two places in three minutes, on foot at that. 7 Hence, there was no physical impossibility for him to be at the scene of the crime at the time when Ananias was stabbed to death.
Besides, accused-appellant's defense of alibi cannot prevail over his positive identification by the prosecution witness, Jose Ausmolo, as one of the perpetrators of the crime. Jose Ausmolo was himself among those boxed by the three (3) Besana brothers. He positively saw Armin, Victorino and Antonio, all surnamed Besana, attacking the five (5) unsuspecting boys who were waiting for their ride home, and later on, ganging up on Ananias as the latter tried to run away.
8 The incident happened in broad daylight, at around three thirty o'clock in the afternoon. It was, therefore, highly improbable, if not outrightly impossible, for Jose to have mistaken the accused-appellant for his younger brother, Victorino.
It is true that only Jose Ausmolo identified the accused as among the three (3) assailants of Ananias Peñaflor, Jr. It is, however, a well-entrenched rule that testimonies of witnesses are weighed and not numbered, and that the testimony of only one witness, if clear and convincing, is enough to convict. We find nothing in Jose Ausmolo's clear and straightforward testimony which will raise doubt in the mind of this Court that indeed, accused-appellant is guilty as charged.
Further, this Court accords great respect to the factual findings of the trial judge, who has the opportunity to directly observe the witnesses and to determine by their demeanor on the stand the probative value of their testimonies. The witnesses reveal much when they testify that is not reflected in the transcript, which only records what they said but not how they said it.
9 The appellate court goes only by the sterile record. By contrast, the trial court can discern the nuances of tone or voice or flush or blanch of face or dart of eyes or forthright gaze, that will draw the line between fact and prevarication. 10 It is for this reason that the trial judge's factual findings are generally not disturbed by the appellate court unless they are found to be clearly biased or arbitrary. They are not so in this case.
As aptly held by the trial court, there was no evident premeditation that attended the killing of Ananias. For the said qualifying circumstance to be appreciated, the following requisites must concur and be proven as convincingly as the crime itself,
11 to wit: (a) the time when the offenders determined to commit the crime; (b) an act manifestly indicating that they had clung to their determination; and (c) a sufficient interval of time between the determination and execution of the crime to allow them to reflect upon the consequences of their act. 12 Here, all that the prosecution tried to show was that the accused, prior to the stabbing incident, approached the group of unsuspecting boys and girls, the deceased among them, looked at each one of them and then left. After which, he returned with two other men, who turned out to be his brothers, and attacked and boxed the victim and his companions. This is not the evident premeditation contemplated by law. The plan to kill the victim must be evident and not merely suspected, or contemplated mentally without external acts.
There was, however, abuse of superior strength which qualified the killing to murder. The three (3) Besana brothers helped each other in stabbing Ananias who was unarmed and alone, after he separated himself from his group. The fact that the accused Armin Besana called on his two other brothers before attacking the victim clearly shows their deliberate intent to take advantage of their combined strength to perpetrate the crime with impunity.
WHEREFORE, premises considered, the appealed decision is hereby AFFIRMED in toto.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Nocon, JJ., concur.
#
Footnotes
* Penned by Judge Jesus G. Alensagay.
1 TSN, November 28, 1989, pp. 222-225.
2 Ibid., p. 227.
3 Ibid., pp. 227, 228, 229.
4 Exhibit "A", Original Records, p. 4.
5 Original Records, p. 1.
6 G.R. No. 95684, October 27, 1992, citing People vs. Rafallo, et al., 86 Phil. 22 (1950), People vs. Bondoc, 85 Phil. 545 (1950), People vs. Cinco, et al., 67 Phil. 196 (1939); People vs. Mendoza, G.R. No. 97430, June 26, 1992; People vs. Talla, et al., 181 SCRA 133 (1990).
7 TSN, January 16, 1990, p. 289.
8 TSN, November 28, 1989, pp. 228-230.
9 People vs. Yadao, et al., G.R. Nos. 72991-92, November 26, 1992.
10 People vs. Arevalo, et al., G.R. No. 93406, October 7, 1992, citing People vs. Francisco, 182 SCRA 305 (1990).
11 People vs. Sarense, et al., G.R. No. 97433, October 20, 1992.
12 People vs. Yadao, supra, note 3, citing R. AQUINO, THE REVISED PENAL CODE 325 (1976 Ed.).
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}102826_03_93_footnotes>mainG.R. No. 102826 March 17, 1993
PEOPLE OF THE PHILIPPINES vs. RODOLFO LABAO ET AL.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 102826 March 17, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
RODOLFO LABAO alias KA RUDY and CESAR VILLANUEVA Y MIGUEL, accused-appellants.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellants.
BELLOSILLO, J.:
It is settled doctrine long cherished since 1917
1 that a decision cannot be validly prepared and signed, much less promulgated, by a judge after he has retired. This notwithstanding, Judge Florentino F. Calica of the Regional Trial Court of Tuao, Cagayan, Br. 11, rendered the judgment under view two and a half (2-1/2) months after he left the Bench and his successor-in-office, Judge Hilarion L. Aquino, promulgated the same two (2) months thereafter.
In the case before Us, accused-appellants Rodolfo Labao and Cesar Villanueva were charged before the Regional Trial Court of Tuao, Cagayan, with the crime of robbery with homicide. After pleading not guilty on arraignment, the case was tried until it was submitted for decision before Judge Calica on 30 April 1991 (Crim. Case No. XI-202-T).
Earlier on 12 April 1991, Judge Calica applied for optional retirement under R.A. 910, as amended by R.A. 5095 and P.D. 1438. As required under S.C. Circular No. 16 dated 2 December 1986, he specified in his application 16 June 1991 as the date of effectivity of his retirement. For the guidance of all members, officials and employees of the judiciary, We quote hereunder pertinent portions of S.C. Circular No. 16 in filing applications for optional retirement:
1. All applications for optional retirement shall specify the date of effectivity thereof and not leave the same effective "upon approval of the Court."
2. All such applications, together with all the necessary documents in support thereof, shall be filed with the Office of the Court Administrator at least two (2) months prior to its effective date, either personally or by special delivery.
3. Within one (1) month following the filing of his application, the applicant must inquire and verify from the Court Administrator as to the status of his application.
4. When the specified date of retirement is reached, without the applicant receiving any notice of approval or denial of his application, he shall cease working and discharging his functions, unless directed otherwise (emphasis supplied).
On 30 May 1991, We approved the retirement of Judge Calica effective 16 June 1991, the date he had earlier indicated in his application. Whether he received Our resolution approving his optional retirement prior to its effectivity is of no moment considering that under Circular 16 he was supposed to inquire and verify the status of his application for retirement from the Court Administrator within one (1) month following the filing of his application (par. 3), and that should he not receive any notice of approval or denial of his application on the requested date of effectivity of his retirement, he should have automatically ceased working or discharging his functions unless directed otherwise (par. 4).
Strangely, on 4 September 1991 or about two and a half (2-1/2) months after the effectivity of his retirement, Judge Calica decided Crim. Case No.
XI-202-T finding accused-appellants guilty of robbery with homicide and sentencing them to reclusion perpetua. On 5 November 1991, Judge Hilarion L. Aquino, who was designated Acting President Judge of Br. 11 vacated by the retiring Judge under Administrative Order No. 87-91, promulgated the decision of 4 September 1991 written by Judge Calica.
The only issue to be resolved in the instant appeal by the accused is the validity of the decision penned by Judge Calica on 4 September 1991 after he had retired from office on 16 June 1991. A corollary issue may also be raised: assuming that Judge Calica signed his decision before his effective date of retirement, could it have been validly promulgated afterwards by his successor in office? In this regard, even the Solicitor General prays in his "Manifestation in Lieu of Appellee's Brief" that the decision of the retired judge be set aside and that the record of the case be remanded to the trial court for the preparation and promulgation of a new decision.
We have consistently ruled that for a judgment to be valid, it must be duly signed and promulgated during the incumbency of the judge who signed
it.
2 Thus, a decision penned by a judge after his retirement cannot be validly promulgated; it cannot acquire a binding effect as it is null and void. 3 Verily, when Judge Calica optionally retired on 16 June 1991 he ceased to be a judge of the court where he sat in judgment. Consequently, with him also "retired" all his authority to decide any case, i.e., to write, sign and promulgate the decision thereon. In other words, he had lost entirely his power and authority to act on all cases assigned to him prior to his retirement.
WHEREFORE, the decision of Judge Florentino F. Calica in Crim. Case No. XI-2022-T is declared null and void having been issued and promulgated after his retirement. This case is ordered remanded to the court of origin for adjudication and promulgation of a new decision.
SO ORDERED.
Cruz, Griño-Aquino and Quiason, JJ., concur.
#
Footnotes
1 See Luna v. Rodriguez, 37 Phil. 186 (1917). While the Luna case may have lost its earlier relevance due to the much later case of Valentin v. Sta. Maria, No.
L-30158, 17 January 1974, 55 SCRA 40, which formally abandoned the doctrine laid down in People v. Soria, No. L-25175, 1 March 1968, 22 SCRA 948; Ong Siu v. Paredes, No. L-21638, 26 July 1966, 17 SCRA 661; and, Garchitorena vs. Crescini, 37 Phil. 675, which dealt principally with the question of whether a judge permanently transferred to a court of equal jurisdiction may still decide cases heard by him in his former sala, there is no deviation from the authoritative norm that a judge who has retired has no legal authority to promulgate a decision, let alone write one as in the present case.
2 Lao v. To-Chip, G. R. No. 76597, 26 February 1988, 158 SCRA 243; People v. So, 101 Phil. 1257 (1957); Consolidated Bank and Trust Corporation v. Intermediate Appellate Court, G. R. Nos. 73777-78, 12 September 1990, 189 SCRA 433.
3 See Jandayan v. Ruiz, No. L-37471, 28 January 1980, 95 SCRA 562; Jimenez v. Republic, No. L-24529, 17 February 1968, 22 SCRA 622; Solis v. Court of Appeals, Nos. L-29777-883, 26 March 1971, 38 SCRA 53.
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}L_68555_03_93_footnotes>mainG.R. No. L-68555 March 19, 1993
PRIME WHITE CEMENT CORP. vs. INTERMEDIATE APPELLATE COURT, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. L-68555 March 19, 1993
PRIME WHITE CEMENT CORPORATION, petitioner,
vs.
HONORABLE INTERMEDIATE APPELLATE COURT and ALEJANDRO TE, respondents.
De Jesus & Associates for petitioner.
Padlan, Sutton, Mendoza & Associates for private respondent.
CAMPOS, JR., J.:
Before Us is a Petition for Review on Certiorari filed by petitioner Prime White Cement Corporation seeking the reversal of the decision * of the then Intermediate Appellate Court, the dispositive portion of which reads as follows:
WHEREFORE, in view of the foregoing, the judgment appealed from is hereby affirmed in toto.
1
The facts, as found by the trial court and as adopted by the respondent Court are hereby quoted, to wit:
On or about the 16th day of July, 1969, plaintiff and defendant corporation thru its President, Mr. Zosimo Falcon and Justo C. Trazo, as Chairman of the Board, entered into a dealership agreement (Exhibit A) whereby said plaintiff was obligated to act as the exclusive dealer and/or distributor of the said defendant corporation of its cement products in the entire Mindanao area for a term of five (5) years and proving (sic) among others that:
a. The corporation shall, commencing September, 1970, sell to and supply the plaintiff, as dealer with 20,000 bags (94 lbs/bag) of white cement per month;
b. The plaintiff shall pay the defendant corporation P9.70, Philippine Currency, per bag of white cement, FOB Davao and Cagayan de Oro ports;
c. The plaintiff shall, every time the defendant corporation is ready to deliver the good, open with any bank or banking institution a confirmed, unconditional, and irrevocable letter of credit in favor of the corporation and that upon certification by the boat captain on the bill of lading that the goods have been loaded on board the vessel bound for Davao the said bank or banking institution shall release the corresponding amount as payment of the goods so shipped.
Right after the plaintiff entered into the aforesaid dealership agreement, he placed an advertisement in a national, circulating newspaper the fact of his being the exclusive dealer of the defendant corporation's white cement products in Mindanao area, more particularly, in the Manila Chronicle dated August 16, 1969 (Exhibits R and R-1) and was even congratulated by his business associates, so much so, he was asked by some of his businessmen friends and close associates if they can be his
sub-dealer in the Mindanao area.
Relying heavily on the dealership agreement, plaintiff sometime in the months of September, October, and December, 1969, entered into a written agreement with several hardware stores dealing in buying and selling white cement in the Cities of Davao and Cagayan de Oro which would thus enable him to sell his allocation of 20,000 bags regular supply of the said commodity, by September, 1970 (Exhibits O, O-1, O-2, P, P-1, P-2, Q, Q-1 and Q-2). After the plaintiff was assured by his supposed buyer that his allocation of 20,000 bags of white cement can be disposed of, he informed the defendant corporation in his letter dated August 18, 1970 that he is making the necessary preparation for the opening of the requisite letter of credit to cover the price of the due initial delivery for the month of September, 1970 (Exhibit B), looking forward to the defendant corporation's duty to comply with the dealership agreement. In reply to the aforesaid letter of the plaintiff, the defendant corporation thru its corporate secretary, replied that the board of directors of the said defendant decided to impose the following conditions:
a. Delivery of white cement shall commence at the end of November, 1970;
b. Only 8,000 bags of white cement per month for only a period of three (3) months will be delivered;
c. The price of white cement was priced at P13.30 per bag;
d. The price of white cement is subject to readjustment unilaterally on the part of the defendant;
e. The place of delivery of white cement shall be Austurias (sic);
f. The letter of credit may be opened only with the Prudential Bank, Makati Branch;
g. Payment of white cement shall be made in advance and which payment shall be used by the defendant as guaranty in the opening of a foreign letter of credit to cover costs and expenses in the procurement of materials in the manufacture of white cement. (Exhibit C).
xxx xxx xxx
Several demands to comply with the dealership agreement (Exhibits D, E, G, I, R, L, and N) were made by the plaintiff to the defendant, however, defendant refused to comply with the same, and plaintiff by force of circumstances was constrained to cancel his agreement for the supply of white cement with third parties, which were concluded in anticipation of, and pursuant to the said dealership agreement.
Notwithstanding that the dealership agreement between the plaintiff and defendant was in force and subsisting, the defendant corporation, in violation of, and with evident intention not to be bound by the terms and conditions thereof, entered into an exclusive dealership agreement with a certain Napoleon Co for the marketing of white cement in Mindanao (Exhibit T) hence, this suit. (Plaintiff's Record on Appeal, pp. 86-90).
2
After trial, the trial court adjudged the corporation liable to Alejandro Te in the amount of P3,302,400.00 as actual damages, P100,000.00 as moral damages, and P10,000.00 as and for attorney's fees and costs. The appellate court affirmed the said decision mainly on the following basis, and We quote:
There is no dispute that when Zosimo R. Falcon and Justo B. Trazo signed the dealership agreement Exhibit "A", they were the President and Chairman of the Board, respectively, of defendant-appellant corporation. Neither is the genuineness of the said agreement contested. As a matter of fact, it appears on the face of the contract itself that both officers were duly authorized to enter into the said agreement and signed the same for and in behalf of the corporation. When they, therefore, entered into the said transaction they created the impression that they were duly clothed with the authority to do so. It cannot now be said that the disputed agreement which possesses all the essential requisites of a valid contract was never intended to bind the corporation as this avoidance is barred by the principle of estoppel.
3
In this petition for review, petitioner Prime White Cement Corporation made the following assignment of errors.
4
I
THE DECISION AND RESOLUTION OF THE INTERMEDIATE APPELLATE COURT ARE UNPRECEDENTED DEPARTURES FROM THE CODIFIED PRINCIPLE THAT CORPORATE OFFICERS COULD ENTER INTO CONTRACTS IN BEHALF OF THE CORPORATION ONLY WITH PRIOR APPROVAL OF THE BOARD OF DIRECTORS.
II
THE DECISION AND RESOLUTION OF THE INTERMEDIATE APPELLATE COURT ARE CONTRARY TO THE ESTABLISHED JURISPRUDENCE, PRINCIPLE AND RULE ON FIDUCIARY DUTY OF DIRECTORS AND OFFICERS OF THE CORPORATION.
III
THE DECISION AND RESOLUTION OF THE INTERMEDIATE APPELLATE COURT DISREGARDED THE PRINCIPLE AND JURISPRUDENCE, PRINCIPLE AND RULE ON UNENFORCEABLE CONTRACTS AS PROVIDED IN ARTICLE 1317 OF THE NEW CIVIL CODE.
IV
THE DECISION AND RESOLUTION OF THE INTERMEDIATE APPELLATE COURT DISREGARDED THE PRINCIPLE AND JURISPRUDENCE AS TO WHEN AWARD OF ACTUAL AND MORAL DAMAGES IS PROPER.
V
IN NOT AWARDING PETITIONER'S CAUSE OF ACTION AS STATED IN ITS ANSWER WITH SPECIAL AND AFFIRMATIVE DEFENSES WITH COUNTERCLAIM THE INTERMEDIATE APPELLATE COURT HAS CLEARLY DEPARTED FROM THE ACCEPTED USUAL, COURSE OF JUDICIAL PROCEEDINGS.
There is only one legal issue to be resolved by this Court: whether or not the "dealership agreement" referred by the President and Chairman of the Board of petitioner corporation is a valid and enforceable contract. We do not agree with the conclusion of the respondent Court that it is.
Under the Corporation Law, which was then in force at the time this case arose,
5 as well as under the present Corporation Code, all corporate powers shall be exercised by the Board of Directors, except as otherwise provided by law. 6 Although it cannot completely abdicate its power and responsibility to act for the juridical entity, the Board may expressly delegate specific powers to its President or any of its officers. In the absence of such express delegation, a contract entered into by its President, on behalf of the corporation, may still bind the corporation if the board should ratify the same expressly or impliedly. Implied ratification may take various forms like silence or acquiescence; by acts showing approval or adoption of the contract; or by acceptance and retention of benefits flowing therefrom. 7 Furthermore, even in the absence of express or implied authority by ratification, the President as such may, as a general rule, bind the corporation by a contract in the ordinary course of business, provided the same is reasonable under the circumstances. 8 These rules are basic, but are all general and thus quite flexible. They apply where the President or other officer, purportedly acting for the corporation, is dealing with a third person, i. e., a person outside the corporation.
The situation is quite different where a director or officer is dealing with his own corporation. In the instant case respondent Te was not an ordinary stockholder; he was a member of the Board of Directors and Auditor of the corporation as well. He was what is often referred to as a "self-dealing" director.
A director of a corporation holds a position of trust and as such, he owes a duty of loyalty to his corporation.
9 In case his interests conflict with those of the corporation, he cannot sacrifice the latter to his own advantage and benefit. As corporate managers, directors are committed to seek the maximum amount of profits for the corporation. This trust relationship "is not a matter of statutory or technical law. It springs from the fact that directors have the control and guidance of corporate affairs and property and hence of the property interests of the stockholders." 10 In the case of Gokongwei v. Securities and Exchange Commission, this Court quoted with favor from Pepper v. Litton, 11 thus:
. . . He cannot by the intervention of a corporate entity violate the ancient precept against serving two masters. . . . He cannot utilize his inside information and his strategic position for his own preferment. He cannot violate rules of fair play by doing indirectly through the corporation what he could not do directly. He cannot use his power for his personal advantage and to the detriment of the stockholders and creditors no matter how absolute in terms that power may be and no matter how meticulous he is to satisfy technical requirements. For that power is at all times subject to the equitable limitation that it may not be exercised for the aggrandizement, preference, or advantage of the fiduciary to the exclusion or detriment of the cestuis. . . . .
On the other hand, a director's contract with his corporation is not in all instances void or voidable. If the contract is fair and reasonable under the circumstances, it may be ratified by the stockholders provided a full disclosure of his adverse interest is made. Section 32 of the Corporation Code provides, thus:
Sec. 32. Dealings of directors, trustees or officers with the corporation. A contract of the corporation with one or more of its directors or trustees or officers is voidable, at the option of such corporation, unless all the following conditions are present:
1. That the presence of such director or trustee in the board meeting in which the contract was approved was not necessary to constitute a quorum for such meeting;
2. That the vote of such director or trustee was not necessary for the approval of the contract;
3. That the contract is fair and reasonable under the circumstances; and
4. That in the case of an officer, the contract with the officer has been previously authorized by the Board of Directors.
Where any of the first two conditions set forth in the preceding paragraph is absent, in the case of a contract with a director or trustee, such contract may be ratified by the vote of the stockholders representing at least two-thirds (2/3) of the outstanding capital stock or of two-thirds (2/3) of the members in a meeting called for the purpose: Provided, That full disclosure of the adverse interest of the directors or trustees involved is made at such meeting: Provided, however, That the contract is fair and reasonable under the circumstances.
Although the old Corporation Law which governs the instant case did not contain a similar provision, yet the cited provision substantially incorporates well-settled principles in corporate law.
12
Granting arguendo that the "dealership agreement" involved here would be valid and enforceable if entered into with a person other than a director or officer of the corporation, the fact that the other party to the contract was a Director and Auditor of the petitioner corporation changes the whole situation. First of all, We believe that the contract was neither fair nor reasonable. The "dealership agreement" entered into in July, 1969, was to sell and supply to respondent Te 20,000 bags of white cement per month, for five years starting September, 1970, at the fixed price of P9.70 per bag. Respondent Te is a businessman himself and must have known, or at least must be presumed to know, that at that time, prices of commodities in general, and white cement in particular, were not stable and were expected to rise. At the time of the contract, petitioner corporation had not even commenced the manufacture of white cement, the reason why delivery was not to begin until 14 months later. He must have known that within that period of six years, there would be a considerable rise in the price of white cement. In fact, respondent Te's own Memorandum shows that in September, 1970, the price per bag was P14.50, and by the middle of 1975, it was already P37.50 per bag. Despite this, no provision was made in the "dealership agreement" to allow for an increase in price mutually acceptable to the parties. Instead, the price was pegged at P9.70 per bag for the whole five years of the contract. Fairness on his part as a director of the corporation from whom he was to buy the cement, would require such a provision. In fact, this unfairness in the contract is also a basis which renders a contract entered into by the President, without authority from the Board of Directors, void or voidable, although it may have been in the ordinary course of business. We believe that the fixed price of P9.70 per bag for a period of five years was not fair and reasonable. Respondent Te, himself, when he subsequently entered into contracts to resell the cement to his "new dealers" Henry Wee
13 and Gaudencio Galang 14 stipulated as follows:
The price of white cement shall be mutually determined by us but in no case shall the same be less than P14.00 per bag (94 lbs).
The contract with Henry Wee was on September 15, 1969, and that with Gaudencio Galang, on October 13, 1967. A similar contract with Prudencio Lim was made on December 29, 1969.
15 All of these contracts were entered into soon after his "dealership agreement" with petitioner corporation, and in each one of them he protected himself from any increase in the market price of white cement. Yet, except for the contract with Henry Wee, the contracts were for only two years from October, 1970. Why did he not protect the corporation in the same manner when he entered into the "dealership agreement"? For that matter, why did the President and the Chairman of the Board not do so either? As director, specially since he was the other party in interest, respondent Te's bounden duty was to act in such manner as not to unduly prejudice the corporation. In the light of the circumstances of this case, it is to Us quite clear that he was guilty of disloyalty to the corporation; he was attempting in effect, to enrich himself at the expense of the corporation. There is no showing that the stockholders ratified the "dealership agreement" or that they were fully aware of its provisions. The contract was therefore not valid and this Court cannot allow him to reap the fruits of his disloyalty.
As a result of this action which has been proven to be without legal basis, petitioner corporation's reputation and goodwill have been prejudiced. However, there can be no award for moral damages under Article 2217 and succeeding articles on Section 1 of Chapter 3 of Title XVIII of the Civil Code in favor of a corporation.
In view of the foregoing, the Decision and Resolution of the Intermediate Appellate Court dated March 30, 1984 and August 6, 1984, respectively, are hereby SET ASIDE. Private respondent Alejandro Te is hereby ordered to pay petitioner corporation the sum of P20,000.00 for attorney's fees, plus the cost of suit and expenses of litigation.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Nocon, JJ., concur.
#
Footnotes
* AC-G.R. No. CV-69947-R, March 30, 1984; penned by Associate Justice Marcelino R Veloso, concurred in by Associate Justices Porfirio V. Sison, Abdulwahid A. Bidin, and Desiderio P. Jurado.
1 Rollo, P. 58.
2 Ibid., pp. 47-51.
3 Ibid., p. 54.
4 Petition, pp. 14-15; Rollo, pp. 19-20.
5 The Corporation Code (B.P. Blg. 68) replaced the Corporation Law (Act 1459) and took effect on May 1, 1980.
6 CORPORATION LAW, Sec. 28; CORPORATION CODE, Sec. 23.
7 Acuña vs. Batac Producers Cooperative Marketing Association, Inc., 20 SCRA 526 (1967)
8 Yu Chuck vs. "Kong Li Po", 46 Phil. 608 (1924).
9 Gokongwei vs. Securities and Exchange Commission, 89 SCRA 336 (1979), and cases cited therein.
10 Ibid.
11 308 U.S. 295-313, 84 L. Ed. 281, 291-292 (1939).
12 Ballantine on Corporations, pp. 167-178.
13 Annex "B" to the Complaint; Record on Appeal, p. 11.
14 Annex "C" to the Complaint; Record on Appeal, pp. 11-12.
15 Annex "D" to the Complaint; Record on Appeal, pp. 12-13.
# $ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}82829_03_93_footnotes>mainG.R. No. 82829 March 19, 1993
JAM TRANSPORTATION. CO. INC. vs. LUIS HERMOSA FLORES, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 82829 March 19, 1993
JAM TRANSPORTATION. CO. INC., petitioner,
vs.
LUIS HERMOSA FLORES and NATIONAL LABOR RELATIONS COMMISSION, respondents.
Bengzon, Zarraga, Narciso, Cudala, Pecson and Bengzon for petitioner.
Marcelino Lontok, Jr. for private respondent.
NOCON, J.:
Petitioner complains to Us that the respondent National Labor Relations Commission affirmed
1 the Labor Arbiter's ruling 2 that private respondent was physically unfit to work and was thus awarded separation pay in addition to backwages based on a thirty (30) day month instead of his actual as claimed by petitioner eleven (11) working days per month. Petitioner insists that private respondent was physically fit to work.
As succinctly summarized by the Office of the Solicitor General, the facts of the case are as follows:
Complainant, in his position paper and supplemental position paper, avers that he was employed by the respondent company as a conductor since 1967. He was paid on percentage basis and received a commission of about P40.00 to P50.00 a day. Sometime in 1985, complainant further alleges that he had an accident, which burned his body partially necessitating his hospitalization for several days. After hospitalization, complainant reported to respondent Josefina Alon-Alon Mercado, in compliance with the letter dated May 20, 1986 of the respondent ordering him to immediately report for work, but was told to wait. For several days he kept on reporting but the Operations Manager just kept promising to give him a route assignment which did not materialize. Finally, complainant was able to talk to respondent Joselito Medrano who told him that he will be accepted back to work as a new employee. Complainant rejected the offer since it would mean losing his eighteen (18) years of service with the respondents. Because of his refusal, he was allegedly told in the presence of some other employees: "Balik ka pa ng balik. Ang kapal naman ng mukha mo." Feeling aggrieved, complainant instituted the present complaint charging the respondents with illegal dismissal, unfair labor practice,
non-payment of overtime pay, legal holiday pay and violations of Presidential Decrees No. 525 and 851.
Respondents, in its position paper contend that in 1986, complainant, for unknown reasons, failed to report for work for about a month. No notice was given to the company for such continued absence. On May 20, 1986, respondent company, thru its Personnel Manager, Joselito Medrano sent a letter to the complainant advising him to immediately report for work, otherwise, his continued absence will be construed as a ground for his dismissal and separation from the service. Respondents further alleged that complainant failed to respond to its demand that he immediately report for work, hence, they filed a termination report with the Ministry of Labor on June 4, 1986, terminating the services of the complainant for "AWOL" (Absent Without Official Leave).
3
After hearing, the Executive Labor Arbiter rendered judgment "in favor of complainant and against respondents ordering the latter to pay complainant separation pay equivalent to one-half (1/2) the average daily commission per every year of service, in the amount of TWELVE THOUSAND ONE HUNDRED FIFTY PESOS (P12,150.00) computed as follows: (P45.00 x 30 = P1350.00/2 = P675 x 18 = P12,150.00)."
4
On appeal by both parties, the respondent NLRC (First Division) set aside the Labor Arbiter's decision and ordered therein respondent (herein petitioner) "to pay the complainant limited backwages of six (6) months without qualification and deduction, and separation pay equivalent to one-half (1/2) of his average monthly commission per each year of service in the amount of Twelve Thousand One Hundred Fifty (P12,150.00) Pesos computed as follows: (P45.00 x 30 = P1,350.00/2 = P675 x 18 = P12,150.00)."
5
Thus, this petition where petitioner claims that public respondent NLRC acted in excess of jurisdiction and/or gravely abused its discretion (1) in affirming the Labor Arbiter's finding that private respondent is physically unfit to work and consequently entitled to separation pay; and (2) in adopting the Labor Arbiter's finding pegging at '30' private respondent's average working days per month.
I
With regard to its first assignment of error, petitioner claims that:
[T]he matter of private respondents' physical capacity to work was never a point of controversy between the parties. It was not at all an issue in the proceeding. The complaint was one for illegal dismissal anchored on the question of abandonment. There was never an occasion in the course of the proceeding that the angle of "termination due to illness" ever cropped up. And the Labor Arbiter on his part did not so much as attempt to get the parties to thresh out such inexistent/non controversial issue.
There was no controversy on the aspect of private respondent physical fitness for work; therefore, as a matter of course, such inexistent controversy was never brought before the Labor Arbiter for adjudication. In view of the foregoing, the Labor Arbiter was bereft of "judicial power" to rule motu propio that private respondent was not physically capacitated to work. . . . .
6
Private respondent, however, counters that such ruling "was or may have been done in good faith and without malice on the part of Labor Arbiter Guevarra."
7
Petitioner is correct.
Executive Labor Arbiter Alvarez held that private respondent was constructively dismissed,
8 i.e., he was illegally dismissed, when, after petitioner informed private respondent that if he wanted to work again with petitioner, he would have to start as a new employee, private respondent, considering his 18 years of service with petitioner, refused to start anew. Executive Labor Arbiter Alvarez, reasoned out as follows:
[W]e are, however, of the considered view and we hold that complainant was constructively dismissed. Notified in writing that complainant would lose his job for abandonment if he fails to return, complainant reported for work only to be refused because respondent wanted him to be hired as a new employee. Naturally, complainant had to object considering that his length of service had already run for 18 years. What we are saying is that complainant had signified his intention to return to his job, and, abandonment is negated when the employee manifests his intention to return to his job. Moreover, after working for 18 years, we find it difficult to believe that he would abandon his job more so that he is married and job nowadays is difficult to find.
9
Private respondent's re-employment as a new employee would be very prejudicial to him as it would mean a demotion in rank and privileges, retirement benefits, for example, as his entire previous eighteen (18) years of service with petitioner, would simply be considered as non-existent.
But instead of resolving whether petitioner accorded private respondent due process in constructively dismissing him
10 Executive Labor Arbiter Alvarez, however, ruled in this wise:
It appears, however, on record that complainant is suffering from heart ailment which, on two occasions, was the reason for cancelling the scheduled hearings or conciliation. Thus, on July 21, 1986 and on August 5, 1986, complainant manifested to have the setting transferred to another date because he (complainant) is suffering from heart ailment.
We have perused the record and we found no medical certificate attesting to his fitness to return to his work as indicated in his position paper. Complainant's termination, therefore, would be justified under Article 285 of the Labor Code as amended, which provides:
An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees; Provided, That he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year.
11
which ratiocination was glaringly off-tangent to the issue posed before him.
Clearly, petitioner has a valid reason to gripe. We cannot, however, order the reinstatement of private respondent with petitioner as relations between the two are now strained
12 after private respondent was humiliated and embarrassed by petitioner's Mr. Medrano when he tried to report back to work. 13
II
With regard to its second assignment of error, petitioner claims that:
Petitioner hereby manifests that it does not question the NLRC's ruling awarding six-month backwages in favor of private respondent. It, however, respectfully takes exception to the computation of private respondent's average monthly commission pay, which the NLRC adopted from the Labor Arbiter's finding.
The computation provides as follows:
P45.00 x 30 = P1,350.00.
The "P45.00" pertains to private respondent's average daily pay while the "30" to his supposed average working days per month. The Honorable Arbiter duly established the basis for the "P45.00" as follows:
Since as aforesaid complainant was paid on percentage basis and that he earned between P40.00 to P50.00 daily the computation of his separation would be based on the average commission per day of forty-five (P45.00) pesos a day. (p. 5, Decision)
But he failed to do so in regard to the "30". A careful perusal of his Decision (Annex "B") reveals that nowhere therein has reference ever been made to the average working days per month of private respondent. The reason is simply that the parties completely overlooked the matter during the proceeding. No allegation was made let alone evidence introduced thereon.
xxx xxx xxx
The maximum number of working days per month of private respondent was only eleven (11). The Certification attached to private respondent's NLRC Appeal as Annex "B-2" thereof (copy of said Appeal together with cited annex attached as Annex "D" hereof), reveals that for the period from January 1984 to March 1986, i.e., two (2) years prior to his dismissal, the maximum amount of his SSS premium payment was P35.70 pertaining to the month March 1985. Under the SSS Table of Rates, copy attached as Annex "E" hereof, which this Honorable Court may take judicial notice of, it is shown in the portion bracketed as Annex "E-1" that premium payment of P35.70 corresponds to a monthly salary wage bracket of "P350.00 P499.99". The implication is that the maximum monthly commission pay that private respondent received during his last two (2) years of employment with petitioner was P499.99. As his average daily commission pay was P45.00, it means that his maximum working days per month was eleven (11) days which is arrived at by simply dividing P499.99 by P45.00.
. . . . But as a concession to private respondent, petitioner is willing to use the maximum aforesaid for purpose of computing his "average" monthly commission pay. Thus, the "average" monthly commission pay may be computed as follows: P45.00 x 11 = P495.00. And the six-month backwages awarded in favor of private respondent will thereby amount to P2,970.00.
Petitioner hereby manifests willingness and readiness to pay said amount of P2,970.00 upon issuance of the appropriate resolution by this Honorable Court.
14
As to this second assigned error, private respondent says that:
To use as basis the Certification issued by petitioner marked as Annex "B", "B-l" to "B-3" particularly Annex "B-2" attached to private respondent's appeal for the years 1984 to 1986 will be most unfair to private respondent. What about the years 1967 to 1983. How could anyone or employee for that matter live and support a family if he works only 11 days in a month?
15
Petitioner, itself, provides the solution to its own problem. Under Sections 10, 11 and 12 of Rule X, Book III, Omnibus Rules Implementing the Labor Code, amended as of 1986.
16 petitioner is supposed to keep employment records of its employees. Such records could have been AND SHOULD HAVE BEEN used by petitioner in clarifying the number of days petitioner actually worked per month. Unfortunately for petitioner, it did not for "the parties completely overlooked the matter during the proceeding. No allegation was made let alone evidence introduced thereon." 17
Petitioner is asking Us to make a new finding of fact on private respondent's actual working days in a month from evidence that it is presenting for the first time on appeal and here in this Court. It is well-settled, too
well-settled to require a citation of jurisprudence, that this Court does not make findings of facts specially on evidence raised for the first time on appeal. We cannot countenance petitioner's ploy to make Us commit this double heresy.
III
Following the general rule that where the illegal dismissal transpired before the effectivity of RA 6715, or before March 21, 1989, the award of backwages in favor of its dismissed employee is limited to three (3) years without deduction or qualification,
18 this Court grants private respondent three (3) years backwages.
Since, however, private respondent cannot be reinstated, he is entitled to separation pay equivalent to at least one (1) month for every year of service.
19
Both awards,
20 to be computed on the basis of a 30-day month, will come out as follows:
(1) Three Years Backwages = P45.00/day x 30 days/month x 12 months/year x 3 years = P48,600.00.
(2) Separation pay for Eighteen Years = P45.00/day x 30 days/months x 18 months = P24,300.00.
WHEREFORE, in view of all the foregoing, judgment is hereby rendered SETTING ASIDE the questioned respondent NLRC's decision. A new decision is entered where private respondent is awarded three years backwages in the amount of P48,600.00 and separation pay in the amount of P24,300.00. Costs against petitioner.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Campos, Jr., JJ., concur.
#
Footnotes
1 Decision, NLRC Case No. RB-IV-10-1977-86, Flores vs. JAM Transportation, March 30,1988; penned by Commissioner Encarnacion and concurred in by Guinto-Perez, Presiding Commissioner and Maglaya, Commissioner; Rollo, pp. 40-46.
2 Decision, NLRC Case No. RB-IV-10-1977-86, Flores vs. JAM Transportation, January 29, 1987, penned by Executive Labor Arbiter Alvarez; Ibid., pp. 47-51.
3 Rollo, pp. 189-190.
4 Ibid., p. 51.
5 Ibid., p. 46.
6 Ibid., pp. 28-29.
7 Private respondent's Memorandum, pp. 3-4; Rollo, pp. 168-169.
8 "A constructive discharge is defined as: 'A quitting because continued employment is rendered impossible, unreasonable unlikely; as an offer involving a demotion in rank and a diminution in pay.' (Moreno's Philippine Law Dictionary, 2nd Ed., p. 129, citing the case of Alia vs. Salani Una Transportation Co., 39527-R, January 29, 1971.)" (Philippine Japan Active Carbon Corp. vs. NLRC, 171 SCRA 164, 167, 168).
9 Rollo, pp. 49-50.
10 "Art. 278(b) . . . . . . . . . [T]he employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Ministry of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. The Ministry may suspend the effects of the termination pending resolution of the case in the event of a prima facie finding by the Ministry that the termination may cause a serious labor dispute or is in implementation of a mass lay-off." (Amended as of 1986)
11 Rollo, p. 50.
12 "Indeed, 'strained relations' may be invoked only against employees . . . whose differences with their employer are of such nature or degree as to preclude reinstatement. (Maranaw Hotels and Resorts Corp. (Century Park Sheraton Manila) vs. Court of Appeals, G.R. No. 103215, Nov. 6, 1992.]
13 "Balik ka pa ng balik. Ang kapal naman ng mukha mo." (Private respondent's Memorandum, p. 2; Rollo. p. 167).
14 Ibid, pp. 33-35.
15 Rollo, p. 170.
16 Sec. 10. Records of workers paid by results. Where the employees are paid on piece, pakiao, takay, task, commission or other non-time basis, the employer shall keep and maintain their production records showing their daily output, gross earnings and the actual number of working hours spent by the employees on the job bearing the signature or thumbmark of the employee concerned. . . . .
Sec. 11. Place of records. All employment records of the employees of an employer shall be kept and maintained in or about the premises of the workplace. The premises of a workplace shall be understood to mean the main or branch office or establishment, if any, depending upon where the employees are regularly assigned. The keeping of the employee's records in another place is prohibited.
Sec. 12. Preservation of records. All employment records required to be kept and maintained by employers shall be preserved for at least three (3) years from the date of the last entry in the records.
17 See page 8, supra.
18 Maranaw Hotels and Resorts Corp. (Century Park Sheraton Manila) vs. CA, et al. G.R. No. 103215, Nov. 6, 1992.
19 Radio Communications of the Philippines, Inc. vs. NLRC, G.R. No. 101181-84, June 22, 1992.
20 "Backwages and separation pay are reliefs distinct and separate from each other. Payment of backwages in the form of relief that restores the income that was lost by reason of unlawful dismissal is distinguished from separation pay which provides the employee money during the period in which he is locating a new job." (Octaviano vs. NLRC, 202 SCRA 332, 338).
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}84607_03_93_footnotes>mainG.R. No. 84607 March 19, 1993
REPUBLIC OF THE PHIL., ET AL. vs. EDILBERTO G. SANDOVAL, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 84607 March 19, 1993
REPUBLIC OF THE PHILIPPINES, GEN. RAMON MONTANO, GEN. ALFREDO LIM, GEN. ALEXANDER AGUIRRE, COL. EDGAR DULA TORRES, COL. CEZAR NAZARENO, MAJ. FILEMON GASMEN, PAT. NICANOR ABANDO, PFC SERAFIN CEBU, JR., GEN. BRIGIDO PAREDES, COL. ROGELIO MONFORTE, PFC ANTONIO LUCERO, PAT. JOSE MENDIOLA, PAT. NELSON TUASON, POLICE CORPORAL PANFILO ROGOS, POLICE LT. JUAN B. BELTRAN, PAT. NOEL MANAGBAO, MARINE THIRD CLASS TRAINEE (3CT) NOLITO NOGATO, 3CT ALEJANDRO B. NAGUIO, JR., EFREN ARCILLAS, 3CT AGERICO LUNA, 3CT BASILIO BORJA, 3CT MANOLITO LUSPO, 3CT CRISTITUTO GERVACIO, 3CT MANUEL DELA CRUZ, JR., MARINE (CDC) BN., (CIVIL DISTURBANCE CONTROL), MOBILE DISPERSAL TEAM (MDT), LT. ROMEO PAQUINTO, LT. LAONGLAANG GOCE, MAJ. DEMETRIO DE LA CRUZ, POLICE CAPTAIN RODOLFO NAVAL, JOHN DOE, RICHARD DOE, ROBERTO DOE AND OTHER DOES, petitioners,
vs.
HON. EDILBERTO G. SANDOVAL, Regional Trial Court of Manila, Branch IX, ERLINDA C. CAYLAO, ANATALIA ANGELES PEREZ, MYRNA BAUTISTA, CIPRIANA EVANGELIO, ELMA GRAMPA, AMELIA GUTIERREZ, NEMESIO LAKINDANUM, PURITA YUMUL, MIGUEL ARABE, TERESITA ARJONA, RONALDO CAMPOMANES AND CARMENCITA ARDONI VDA. DE CAMPOMANES, ROGELIO DOMUNICO, in their capacity as heirs of the deceased (ROBERTO C. CAYLAO, SONNY "BOY" PEREZ, DIONESIO BAUTISTA, DANTE EVANGELIO, ADELFA ARIBE, DANILO ARJONA, VICENTE CAMPOMANES, RONILO DOMUNICO) respectively; and (names of sixty-two injured victims) EDDIE AGUINALDO, FELICISIMO ALBASIA, NAPOLEON BAUTISTA, DANILO CRUZ, EDDIE MENSOLA, ALBERT PITALBO, VICENTE ROSEL, RUBEN CARRIEDO, JOY CRUZ, HONORIO LABAMBA, JR., EFREN MACARAIG, SOLOMON MANALOTO, ROMEO DURAN, NILO TAGUBAT, JUN CARSELLAR, JOEY CLEMENTE, GERARDO COYOCA, LUISITO DACO, BENJAMIN DELA CRUZ, ARTHUR FONTANILLA, WILSON GARCIA, CARLOS SIRAY, JOSE PERRAS, TOMAS VALLOS, ARNOLD ENAJE, MARIANITA DIMAPILIS, FRANCISCO ANGELES, MARCELO ESGUERRA, JOSE FERRER, RODEL DE GUIA, ELVIS MENDOZA, VICTORIANO QUIJANO, JOEY ADIME, RESIENO ADUL, ALBERTO TARSONA, CARLOS ALCANTARA, MAMERTO ALIAS, EMELITO ALMONTE, BENILDA ALONUEVO, EMMA ABADILLO, REYNALDO CABALLES, JR., JAIME CALDETO, FABIAN CANTELEJO, RODRIGO CARABARA, ENRIQUE DELGADO, JUN DELOS SANTOS, MARIO DEMASACA, FRANCISCO GONZALES, ERNESTO GONZALES, RAMIRO JAMIL, JUAN LUCENA, PERLITO SALAYSAY, JOHNNY SANTOS, MARCELO SANTOS, EMIL SAYAO, BAYANI UMALI, REMIGIO MAHALIN, BONG MANLULO, ARMANDO MATIENZO, CARLO MEDINA, LITO NOVENARIO, and ROSELLA ROBALE, respondents.
G.R. No. 84645 March 19, 1993
ERLINDA C. CAYLAO, ANATALIA ANGELES PEREZ, MYRNA BAUTISTA, CIPRIANA EVANGELIO, ELMA GRAMPA, AMELIA GUTIERREZ, NEMESIO LAKINDANUM, PURITA YUMUL, MIGUEL ARABE, TERESITA ARJONA, RONALDO CAMPOMANES AND CARMENCITA ARDONI VDA. DE CAMPOMANES, ROGELIO DOMUNICO, in their capacity as heirs of the deceased (ROBERTO C. CAYLAO, SONNY "BOY" PEREZ, DIONESIO GRAMPA, ANGELITO GUTIERREZ, BERNABE LAKINDANUM, ROBERTO YUMUL, LEOPOLDO ALONZO, ADELFA ARIBE, DANILO ARJONA, VICENTE CAMPOMANES, RONILO DOMUNICO) respectively; and (names of sixty-two injured victims) EDDIE AGUINALDO, FELICISIMO ALBASIA, NAPOLEON BAUTISTA, DANILO CRUZ, EDDIE MENSOLA, ALBERT PITALBO, VICENTE ROSEL, RUBEN CARRIEDO, JOY CRUZ, HONORIO LABAMBA, JR. EFREN MACARAIG, SOLOMON MANALOTO, ROMEO DURAN, NILO TAGUBAT, JUN CARSELLAR, JOEY CLEMENTE, GERARDO COYOCA, LUISITO DACO, BENJAMIN DELA CRUZ, ARTHUR FONTANILLA, WILSON GARCIA, CARLOS SIRAY, JOSE PERRAS TOMAS VALLOS, ARNOLD ENAJE, MARIANITA DIMAPILIS, FRANCISCO ANGELES, MARCELO ESGUERRA, JOSE FERRER, RODEL DE GUIA, ELVIS MENDOZA, VICTORINO QUIJANO, JOEY ADIME, RESIENO ADUL, ALBERTO TARSONA, CARLOS ALCANTARA, MAMERTO ALIAS, EMELITO ALMONTE, BENILDA ALONUEVO, EMMA ABADILLO, REYNALDO CABALLES, JR., JAIME CALDETO, FABIAN CANTELEJO, RODRIGO CARABARA, ENRIQUE DELGADO, JUN DELOS SANTOS, MARIO DEMASACA, FRANCISCO GONZALES, ERNESTO GONZALES, RAMIRO JAMIL, JUAN LUCENA, PERLITO SALAYSAY, JOHNNY SANTOS, MARCELO SANTOS, EMIL SAYAO, BAYANI UMALI, REMIGIO MAHALIN, BONG MANLULO, ARMANDO MATIENZO, CARLO MEDINA, LITO NOVENARIO, ROSELLA ROBALE, petitioners,
vs.
REPUBLIC OF THE PHILIPPINES, and HONORABLE EDILBERTO G. SANDOVAL, Regional Trial Court of Manila, Branch 9, respondents.
The Solicitor General for the Republic of the Philippines.
Structural Alternative Legal Assistance for Grassroots for petitioners in 84645 & private respondents in 84607.
CAMPOS, JR., J.:
People may have already forgotten the tragedy that transpired on January 22, 1987. It is quite ironic that then, some journalists called it a Black Thursday, as a grim reminder to the nation of the misfortune that befell twelve (12) rallyists. But for most Filipinos now, the Mendiola massacre may now just as well be a chapter in our history books. For those however, who have become widows and orphans, certainly they would not settle for just that. They seek retribution for the lives taken that will never be brought back to life again.
Hence, the heirs of the deceased, together with those injured (Caylao group), instituted this petition, docketed as G.R. No. 84645, under Section 1 of Rule 65 of the Rules of Court, seeking the reversal and setting aside of the Orders of respondent Judge Sandoval,
1 dated May 31 and August 8, 1988, dismissing the complaint for damages of herein petitioners against the Republic of the Philippines in Civil Case No. 88-43351.
Petitioner, the Republic of the Philippines, through a similar remedy, docketed as G.R. No. 84607, seeks to set aside the Order of respondent Judge dated May 31, 1988, in Civil Case No. 88-43351 entitled "Erlinda Caylao, et al. vs. Republic of the Philippines, et al."
The pertinent portion of the questioned Order
2 dated May 31, 1988, reads as follows:
With respect however to the other defendants, the impleaded Military Officers, since they are being charged in their personal and official capacity, and holding them liable, if at all, would not result in financial responsibility of the government, the principle of immunity from suit can not conveniently and correspondingly be applied to them.
WHEREFORE, the case as against the defendant Republic of the Philippines is hereby dismissed. As against the rest of the defendants the motion to dismiss is denied. They are given a period of ten (10) days from receipt of this order within which to file their respective pleadings.
On the other hand, the Order
3, dated August 8, 1988, denied the motions filed by both parties, for a reconsideration of the abovecited Order, respondent Judge finding no cogent reason to disturb the said order.
The massacre was the culmination of eight days and seven nights of encampment by members of the militant Kilusang Magbubukid sa Pilipinas (KMP) at the then Ministry (now Department) of Agrarian Reform (MAR) at the Philippine Tobacco Administration Building along Elliptical Road in Diliman, Quezon City.
The farmers and their sympathizers presented their demands for what they called "genuine agrarian reform". The KMP, led by its national president, Jaime Tadeo, presented their problems and demands, among which were: (a) giving lands for free to farmers; (b) zero retention of lands by landlords; and (c) stop amortizations of land payments.
The dialogue between the farmers and the MAR officials began on January 15, 1987. The two days that followed saw a marked increase in people at the encampment. It was only on January 19, 1987 that Jaime Tadeo arrived to meet with then Minister Heherson Alvarez, only to be informed that the Minister can only meet with him the following day. On January 20, 1987, the meeting was held at the MAR conference room. Tadeo demanded that the minimum comprehensive land reform program be granted immediately. Minister Alvarez, for his part, can only promise to do his best to bring the matter to the attention of then President Aquino, during the cabinet meeting on January 21, 1987.
Tension mounted the following day. The farmers, now on their seventh day of encampment, barricaded the MAR premises and prevented the employees from going inside their offices. They hoisted the KMP flag together with the Philippine flag.
At around 6:30 p.m. of the same day, Minister Alvarez, in a meeting with Tadeo and his leaders, advised the latter to instead wait for the ratification of the 1987 Constitution and just allow the government to implement its comprehensive land reform program. Tadeo, however, countered by saying that he did not believe in the Constitution and that a genuine land reform cannot be realized under a landlord-controlled Congress. A heated discussion ensued between Tadeo and Minister Alvarez. This notwithstanding, Minister Alvarez suggested a negotiating panel from each side to meet again the following day.
On January 22, 1987, Tadeo's group instead decided to march to Malacañang to air their demands. Before the march started, Tadeo talked to the press and TV media. He uttered fiery words, the most telling of which were:
". . . inalis namin ang barikada bilang kahilingan ng ating Presidente, pero kinakailangan alisin din niya ang barikada sa Mendiola sapagkat bubutasin din namin iyon at dadanak ang dugo . . . ."
4
The farmers then proceeded to march to Malacañang, from Quezon Memorial Circle, at 10:00 a.m. They were later joined by members of other sectoral organizations such as the Kilusang Mayo Uno (KMU), Bagong Alyansang Makabayan (BAYAN), League of Filipino Students (LFS) and Kongreso ng Pagkakaisa ng Maralitang Lungsod (KPML).
At around 1:00 p.m., the marchers reached Liwasang Bonifacio where they held a brief program. It was at this point that some of the marchers entered the eastern side of the Post Office Building, and removed the steel bars surrounding the garden. Thereafter, they joined the march to Malacañang. At about 4:30 p.m., they reached C.M. Recto Avenue.
In anticipation of a civil disturbance, and acting upon reports received by the Capital Regional Command (CAPCOM) that the rallyists would proceed to Mendiola to break through the police lines and rush towards Malacañang, CAPCOM Commander General Ramon E. Montaño inspected the preparations and adequacy of the government forces to quell impending attacks.
OPLAN YELLOW (Revised) was put into effect. Task Force Nazareno under the command of Col. Cesar Nazareno was deployed at the vicinity of Malacañang. The civil disturbance control units of the Western Police District under Police Brigadier General Alfredo S. Lim were also activated.
Intelligence reports were also received that the KMP was heavily infiltrated by CPP/NPA elements and that an insurrection was impending. The threat seemed grave as there were also reports that San Beda College and Centro Escolar University would be forcibly occupied.
In its report, the Citizens' Mendiola Commission (a body specifically tasked to investigate the facts surrounding the incident, Commission for short) stated that the government anti-riot forces were assembled at Mendiola in a formation of three phalanges, in the following manner:
(1) The first line was composed of policemen from police stations Nos. 3, 4, 6, 7, 8, 9 and 10 and the Chinatown detachment of the Western Police District. Police Colonel Edgar Dula Torres, Deputy Superintendent of the Western Police District, was designated as ground commander of the CDC first line of defense. The WPD CDC elements were positioned at the intersection of Mendiola and Legarda Streets after they were ordered to move forward from the top of Mendiola bridge. The WPD forces were in khaki uniform and carried the standard CDC equipment aluminum shields, truncheons and gas masks.
(2) At the second line of defense about ten (10) yards behind the WPD policemen were the elements of the Integrated National Police (INP) Field Force stationed at Fort Bonifacio from the 61st and 62nd INP Field Force, who carried also the standard CDC equipment truncheons, shields and gas masks. The INP Field Force was under the command of Police Major Demetrio dela Cruz.
(3) Forming the third line was the Marine Civil Disturbance Control Battalion composed of the first and second companies of the Philippine Marines stationed at Fort Bonifacio. The marines were all equipped with shields, truncheons and M-16 rifles (armalites) slung at their backs, under the command of Major Felimon B. Gasmin. The Marine CDC Battalion was positioned in line formation ten (10) yards farther behind the INP Field Force.
At the back of the marines were four (4) 6 x 6 army trucks, occupying the entire width of Mendiola street, followed immediately by two water cannons, one on each side of the street and eight fire trucks, four trucks on each side of the street. The eight fire trucks from Fire District I of Manila under Fire Superintendent Mario C. Tanchanco, were to supply water to the two water cannons.
Stationed farther behind the CDC forces were the two Mobile Dispersal Teams (MDT) each composed of two tear gas grenadiers, two spotters, an assistant grenadier, a driver and the team leader.
In front of the College of the Holy Spirit near Gate 4 of Malacañang stood the VOLVO Mobile Communications Van of the Commanding General of CAPCOM/INP, General Ramon E. Montaño. At this command post, after General Montaño had conferred with TF Nazareno Commander, Colonel Cezar Nazareno, about the adequacy and readiness of his forces, it was agreed that Police General Alfredo S. Lim would designate Police Colonel Edgar Dula Torres and Police Major Conrado Francisco as negotiators with the marchers. Police General Lim then proceeded to the WPD CDC elements already positioned at the foot of Mendiola bridge to relay to Police Colonel Torres and Police Major Francisco the instructions that the latter would negotiate with the marchers.
5 (Emphasis supplied)
The marchers, at around 4:30 p.m., numbered about 10,000 to 15,000. From C.M. Recto Avenue, they proceeded toward the police lines. No dialogue took place between the marchers and the anti-riot squad. It was at this moment that a clash occurred and, borrowing the words of the Commission "pandemonium broke loose". The Commission stated in its findings, to wit:
. . . There was an explosion followed by throwing of pillboxes, stones and bottles. Steel bars, wooden clubs and lead pipes were used against the police. The police fought back with their shields and truncheons. The police line was breached. Suddenly shots were heard. The demonstrators disengaged from the government forces and retreated towards C.M. Recto Avenue. But sporadic firing continued from the government forces.
After the firing ceased, two MDTs headed by Lt. Romeo Paquinto and Lt. Laonglaan Goce sped towards Legarda Street and lobbed tear gas at the remaining rallyist still grouped in the vicinity of Mendiola. After dispersing the crowd, the two MDTs, together with the two WPD MDTs, proceeded to Liwasang Bonifacio upon order of General Montaño to disperse the rallyists assembled thereat. Assisting the MDTs were a number of policemen from the WPD, attired in civilian clothes with white head bands, who were armed with long firearms.
6 (Emphasis ours)
After the clash, twelve (12) marchers were officially confirmed dead, although according to Tadeo, there were thirteen (13) dead, but he was not able to give the name and address of said victim. Thirty-nine (39) were wounded by gunshots and twelve (12) sustained minor injuries, all belonging to the group of the marchers.
Of the police and military personnel, three (3) sustained gunshot wounds and twenty (20) suffered minor physical injuries such as abrasions, contusions and the like.
In the aftermath of the confrontation, then President Corazon C. Aquino issued Administrative Order No. 11,
7 (A.O. 11, for brevity) dated January 22, 1987, which created the Citizens' Mendiola Commission. The body was composed of retired Supreme Court Justice Vicente Abad Santos as Chairman, retired Supreme Court Justice Jose Y. Feria and Mr. Antonio U. Miranda, both as members. A.O. 11 stated that the Commission was created precisely for the "purpose of conducting an investigation of the disorder, deaths, and casualties that took place in the vicinity of Mendiola Bridge and Mendiola Street and Claro M. Recto Avenue, Manila, in the afternoon of January 22, 1987". The Commission was expected to have submitted its findings not later than February 6, 1987. But it failed to do so. Consequently, the deadline was moved to February 16, 1987 by Administrative Order No. 13. Again, the Commission was unable to meet this deadline. Finally, on February 27, 1987, it submitted its report, in accordance with Administrative Order No. 17, issued on February 11, 1987.
In its report, the Commission recapitulated its findings, to wit:
(1) The march to Mendiola of the KMP led by Jaime Tadeo, together with the other sectoral groups, was not covered by any permit as required under Batas Pambansa Blg. 880, the Public Assembly Act of 1985, in violation of paragraph (a) Section 13, punishable under paragraph (a), Section 14 of said law.
(2) The crowd dispersal control units of the police and the military were armed with .38 and .45 caliber handguns, and M-16 armalites, which is a prohibited act under paragraph 4(g), Section 13, and punishable under paragraph (b), Section 14 of Batas Pambansa Blg. 880.
(3) The security men assigned to protect the WPD, INP Field Force, the Marines and supporting military units, as well as the security officers of the police and military commanders were in civilian attire in violation of paragraph (a), Section 10, Batas Pambansa 880.
(4) There was unnecessary firing by the police and military crowd dispersal control units in dispersing the marchers, a prohibited act under paragraph (e), Section 13, and punishable under paragraph (b), Section 14, Batas Pambansa Blg. 880.
(5) The carrying and use of steel bars, pillboxes, darts, lead pipe, wooden clubs with spikes, and guns by the marchers as offensive weapons are prohibited acts punishable under paragraph (g), Section 13, and punishable under paragraph (e), Section 14 of Batas Pambansa Blg. 880.
(6) The KMP farmers broke off further negotiations with the MAR officials and were determined to march to Malacañang, emboldened as they are, by the inflammatory and incendiary utterances of their leader, Jaime Tadeo "bubutasin namin ang barikada . . Dadanak and dugo . . . Ang nagugutom na magsasaka ay gagawa ng sariling butas. . .
(7) There was no dialogue between the rallyists and the government forces. Upon approaching the intersections of Legarda and Mendiola, the marchers began pushing the police lines and penetrated and broke through the first line of the CDC contingent.
(8) The police fought back with their truncheons and shields. They stood their ground but the CDC line was breached. There ensued gunfire from both sides. It is not clear who started the firing.
(9) At the onset of the disturbance and violence, the water cannons and tear gas were not put into effective use to disperse the rioting crowd.
(10) The water cannons and fire trucks were not put into operation because (a) there was no order to use them; (b) they were incorrectly prepositioned; and (c) they were out of range of the marchers.
(11) Tear gas was not used at the start of the disturbance to disperse the rioters. After the crowd had dispersed and the wounded and dead were being carried away, the MDTs of the police and the military with their tear gas equipment and components conducted dispersal operations in the Mendiola area and proceeded to Liwasang Bonifacio to disperse the remnants of the marchers.
(12) No barbed wire barricade was used in Mendiola but no official reason was given for its absence.
8
From the results of the probe, the Commission recommended
9 the criminal prosecution of four unidentified, uniformed individuals, shown either on tape or in pictures, firing at the direction of the marchers. In connection with this, it was the Commission's recommendation that the National Bureau of Investigation (NBI) be tasked to undertake investigations regarding the identities of those who actually fired their guns that resulted in the death of or injury to the victims of the incident. The Commission also suggested that all the commissioned officers of both the Western Police District and the INP Field Force, who were armed during the incident, be prosecuted for violation of paragraph 4(g) of Section 13, Batas Pambansa Blg. 880, the Public Assembly Act of 1985. The Commission's recommendation also included the prosecution of the marchers, for carrying deadly or offensive weapons, but whose identities have yet to be established. As for Jaime Tadeo, the Commission said that he should be prosecuted both for violation of paragraph (a), Section 13, Batas Pambansa Blg. 880 for holding the rally without a permit and for violation of Article 142, as amended, of the Revised Penal Code for inciting to sedition. As for the following officers, namely: (1) Gen. Ramon E. Montaño; (2) Police Gen. Alfredo S. Lim; (3) Police Gen. Edgar Dula Torres; (4) Police Maj. Demetrio dela Cruz; (5) Col. Cezar Nazareno; and (5) Maj. Felimon Gasmin, for their failure to make effective use of their skill and experience in directing the dispersal operations in Mendiola, administrative sanctions were recommended to be imposed.
The last and the most significant recommendation of the Commission was for the deceased and wounded victims of the Mendiola incident to be compensated by the government. It was this portion that petitioners (Caylao group) invoke in their claim for damages from the government.
Notwithstanding such recommendation, no concrete form of compensation was received by the victims. Thus, on July 27, 1987, herein petitioners, (Caylao group) filed a formal letter of demand for compensation from the Government.
10 This formal demand was indorsed by the office of the Executive Secretary to the Department of Budget and Management (DBM) on August 13, 1987. The House Committee on Human Rights, on February 10, 1988, recommended the expeditious payment of compensation to the Mendiola victims. 11
After almost a year, on January 20, 1988, petitioners (Caylao group) were constrained to institute an action for damages against the Republic of the Philippines, together with the military officers, and personnel involved in the Mendiola incident, before the trial court. The complaint was docketed as Civil Case No. 88-43351.
On February 23, 1988, the Solicitor General filed a Motion to Dismiss on the ground that the State cannot be sued without its consent. Petitioners opposed said motion on March 16, 1988, maintaining that the State has waived its immunity from suit and that the dismissal of the instant action is contrary to both the Constitution and the International Law on Human Rights.
Respondent Judge Sandoval, in his first questioned Order, dismissed the complaint as against the Republic of the Philippines on the ground that there was no waiver by the State. Petitioners (Caylao group) filed a Motion for Reconsideration therefrom, but the same was denied by respondent judge in his Order dated August 8, 1988. Consequently, Caylao and her co-petitioners filed the instant petition.
On the other hand, the Republic of the Philippines, together with the military officers and personnel impleaded as defendants in the court below, filed its petition for certiorari.
Having arisen from the same factual beginnings and raising practically identical issues, the two (2) petitions were consolidated and will therefore be jointly dealt with and resolved in this Decision.
The resolution of both petitions revolves around the main issue of whether or not the State has waived its immunity from suit.
Petitioners (Caylao group) advance the argument that the State has impliedly waived its sovereign immunity from suit. It is their considered view that by the recommendation made by the Commission for the government to indemnify the heirs and victims of the Mendiola incident and by the public addresses made by then President Aquino in the aftermath of the killings, the State has consented to be sued.
Under our Constitution the principle of immunity of the government from suit is expressly provided in Article XVI, Section 3. The principle is based on the very essence of sovereignty, and on the practical ground that there can be no legal right as against the authority that makes the law on which the right depends.
12 It also rests on reasons of public policy that public service would be hindered, and the public endangered, if the sovereign authority could be subjected to law suits at the instance of every citizen and consequently controlled in the uses and dispositions of the means required for the proper administration of the government. 13
This is not a suit against the State with its consent.
Firstly, the recommendation made by the Commission regarding indemnification of the heirs of the deceased and the victims of the incident by the government does not in any way mean that liability automatically attaches to the State. It is important to note that A.O. 11 expressly states that the purpose of creating the Commission was to have a body that will conduct an "investigation of the disorder, deaths and casualties that took place."
14 In the exercise of its functions, A.O. 11 provides guidelines, and what is relevant to Our discussion reads:
1 Its conclusions regarding the existence of probable cause for the commission of any offense and of the persons probably guilty of the same shall be sufficient compliance with the rules on preliminary investigation and the charges arising therefrom may be filed directly with the proper court.
15
In effect, whatever may be the findings of the Commission, the same shall only serve as the cause of action in the event that any party decides to litigate his/her claim. Therefore, the Commission is merely a preliminary venue. The Commission is not the end in itself. Whatever recommendation it makes cannot in any way bind the State immediately, such recommendation not having become final and, executory. This is precisely the essence of it being a fact-finding body.
Secondly, whatever acts or utterances that then President Aquino may have done or said, the same are not tantamount to the State having waived its immunity from suit. The President's act of joining the marchers, days after the incident, does not mean that there was an admission by the State of any liability. In fact to borrow the words of petitioners (Caylao group), "it was an act of solidarity by the government with the people". Moreover, petitioners rely on President Aquino's speech promising that the government would address the grievances of the rallyists. By this alone, it cannot be inferred that the State has admitted any liability, much less can it be inferred that it has consented to the suit.
Although consent to be sued may be given impliedly, still it cannot be maintained that such consent was given considering the circumstances obtaining in the instant case.
Thirdly, the case does not qualify as a suit against the State.
Some instances when a suit against the State is proper are:
16
(1) When the Republic is sued by name;
(2) When the suit is against an unincorporated government agency;
(3) When the, suit is on its face against a government officer but the case is such that ultimate liability will belong not to the officer but to the government.
While the Republic in this case is sued by name, the ultimate liability does not pertain to the government. Although the military officers and personnel, then party defendants, were discharging their official functions when the incident occurred, their functions ceased to be official the moment they exceeded their authority. Based on the Commission findings, there was lack of justification by the government forces in the use of firearms.
17 Moreover, the members of the police and military crowd dispersal units committed a prohibited act under B.P. Blg. 880 18 as there was unnecessary firing by them in dispersing the marchers. 19
As early as 1954, this Court has pronounced that an officer cannot shelter himself by the plea that he is a public agent acting under the color of his office when his acts are wholly without authority.
20 Until recently in 1991, 21 this doctrine still found application, this Court saying that immunity from suit cannot institutionalize irresponsibility and non-accountability nor grant a privileged status not claimed by any other official of the Republic. The military and police forces were deployed to ensure that the rally would be peaceful and orderly as well as to guarantee the safety of the very people that they are duty-bound to protect. However, the facts as found by the trial court showed that they fired at the unruly crowd to disperse the latter.
While it is true that nothing is better settled than the general rule that a sovereign state and its political subdivisions cannot be sued in the courts except when it has given its consent, it cannot be invoked by both the military officers to release them from any liability, and by the heirs and victims to demand indemnification from the government. The principle of state immunity from suit does not apply, as in this case, when the relief demanded by the suit requires no affirmative official action on the part of the State nor the affirmative discharge of any obligation which belongs to the State in its political capacity, even though the officers or agents who are made defendants claim to hold or act only by virtue of a title of the state and as its agents and servants.
22 This Court has made it quite clear that even a "high position in the government does not confer a license to persecute or recklessly injure another." 23
The inescapable conclusion is that the State cannot be held civilly liable for the deaths that followed the incident. Instead, the liability should fall on the named defendants in the lower court. In line with the ruling of this court in Shauf vs. Court of Appeals,
24 herein public officials, having been found to have acted beyond the scope of their authority, may be held liable for damages.
WHEREFORE, finding no reversible error and no grave abuse of discretion committed by respondent Judge in issuing the questioned orders, the instant petitions are hereby DISMISSED.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Bellosillo, Melo and Quiason, JJ., concur.
Gutierrez, Jr., J., is on leave.
#
Footnotes
1 Judge Edilberto G. Sandoval was the presiding judge of Branch 9 of Regional Trial Court, Manila.
2 Rollo of G.R. No. 84607, p. 65.
3 Ibid., pp. 73-76.
4 Ibid., p. 80.
5 Ibid., pp. 82-84.
6 Ibid., pp. 84-85.
7 Ibid., p. 158.
8 Ibid., pp. 102-103.
9 Ibid., pp. 107-109.
10 Rollo, G.R. No. 84645, pp. 36-38.
11 Ibid., pp. 125-126.
12 Kawananakoa vs. Polyblank, 205 U.S. 349-353, 51 L. Ed. 834 (1907).
13 The Siren vs. United States, 7 Wall. 152, 19 L. Ed. 129 (1869).
14 Supra, note 7.
15 Ibid.
16 J.G. BERNAS, CONSTITUTIONAL STRUCTURE AND POWERS OF GOVERNMENT, NOTES AND CASES 414 (1st ed., 1991).
17 Rollo of G.R. No. 84607, pp. 196-197.
18 Sec. 13. Prohibited Acts. The following shall constitute violations of this Act:
xxx xxx xxx
(e) The unnecessary firing of firearms by a member of any law enforcement agency or any person to disperse the public assembly;
xxx xxx xxx
19 Supra, note 17 at p. 102.
20 Festejo vs. Fernando, 94 Phil. 504 (1954) citing 43 Am. Jur. 86-90.
21 Chavez vs. Sandiganbayan, 193 SCRA 282 (1991).
22 Ruiz vs. Cabahug, 102 Phil. 110 (1957).
23 Supra, note 19.
24 191 SCRA 713 (1990).
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}93476_03_93_footnotes>mainG.R. No. 93476 March 19, 1993
A' PRIME SECURITY SERVICES, INC. vs. NATIONAL LABOR RELATIONS COMMISSION, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 93476 March 19, 1993
A' PRIME SECURITY SERVICES, INC., petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION (THIRD DIVISION), HONORABLE LABOR ARBITER OSWALDO LORENZO AND FLORENTINO LISING, respondents.
De Leon & Associates for petitioner.
Soto, Dizon and Associates Law Office for private respondent.
CRUZ, J.:
Private respondent Florentino Lising was one of the security guard force employed by petitioner A' Prime Security Services Inc. for assignment to its various clients. Shortly before this case arose, he was detailed to the Regional Relay Facilities (RRF), a U.S. Mission facility located at the Clark Air Base, Angeles City.
On September 8, 1988, Asst. Regional Security Officer Alan E. Gentile of the U.S. Embassy requested Lising's relief as guard supervisor. The reason given was that he had been found sleeping while on duty.
1
Investigation conducted by the petitioner on September 12, 1988, affirmed that Lising was caught sleeping on duty at least four times.
2 In two sworn statements, however, he admitted having slept on duty only once, i.e., on July 16, 1988. 3
The results of the investigation were reported by the petitioner to the RRF in a letter dated September 14, 1988,
4 with the following remarks:
1. Shift Supervisor Florentino M. Lising's services under the contract and other U.S. mission facilities in the Philippines were terminated effective September 7, 1988. . . .
When Lising learned about the request for his relief, he went on absence without official leave. On September 28, 1988, the petitioner sent him a letter reminding him that he had been on AWOL since September 15, 1988. He was warned that unless he reported back within three days from receipt of the letter, he would be considered to have abandoned his work.
5
Lising returned but, when he was informed that he would be transferred to another client, again went on AWOL. This prompted another letter from the petitioner dated October 13, 1988, warning him once more of the termination of his services if he did not report back for work.
6
Instead of complying, Lising filed on October 13, 1988, a complaint against the petitioner for illegal dismissal and non-payment of overtime pay. He demanded not reinstatement but separation pay and back wages.
On December 14, 1988, Labor Arbiter Oswald B. Lorenzo held that the petitioner was guilty of illegal dismissal and ordered Lising's reinstatement with full back wages. His claim for overtime pay was, however, dismissed for lack of basis.
7
On February 5, 1990, the NLRC modified the Labor Arbiter's decision. Holding that Lising was dismissed for cause although his dismissal was effected without due process, the NLRC disposed thus:
WHEREFORE, premises considered, the Decision dated December 14, 1988 is hereby MODIFIED. Respondents-appellants are directed to grant complainant separation pay equivalent to one month salary for every year of service. The dismissal of claim for overtime pay is, however, affirmed.
8
Its motion for reconsideration having been denied on March 30, 1990, the petitioner has come to this Court on certiorari. The petitioner claims grave abuse of discretion on the part of the Labor Arbiter for finding that respondent Lising was illegally dismissed and on the part of the NLRC for awarding him separation pay.
The Solicitor General feels that Lising was not illegally dismissed but sustains the award of separation pay on the grounds of equity and social justice. For his part, Lising agrees completely with the decision under review.
The petitioner argues that it did not terminate Lising's employment but only withdrew his assignment at the Clark Air Base at the request of the U.S. Embassy. Lising himself terminated his services by abandonment and there was no need for a formal investigation to establish that fact.
To constitute abandonment of position, there must be concurrence of the intention to abandon and some overt acts from which it may be inferred that the employee concerned has no more interest in working.
9
It is noted that in the letter dated October 13, 1988, the petitioner manifested its willingness to retain Lising in its employ provided that he reported for duty within three days. Instead of doing so, Lising filed a complaint for illegal dismissal which, significantly, did not seek reinstatement but merely separation pay. When asked by the Labor Arbiter why he did not report for work, Lising answered that he simply did not want to work anymore and just wanted his separation pay.
10
The rule that abandonment of work is inconsistent with the filing of a complaint for illegal dismissal
11 is not applicable to the present case. This rule applies only where the complainant seeks reinstatement and not where he expressly rejects this relief and asks for separation pay instead.
The NLRC held that Lising's services were terminated on September 7, 1988, as shown by the letter of the petitioner to the Regional Security Officer quoted above. We do not read it that way. The said letter shows that what was actually terminated was not Lising's employment but only his detail or assignment to the US Facility at Clark Air Base. Such relief was without prejudice to his re-assignment to another client as determined by the petitioner conformably to its employment agreement with Lising.
The assignment of its personnel is the prerogative of the employer in the management of its business.
12 There is nothing in the record to indicate that Lising's re-assignment was utilized by the petitioner to ease him out of his employment. No less importantly, the private respondent has not given any satisfactory reason for his refusal to be transferred to another client.
The Court finds that it was private respondent Lising who severed his employment with the petitioner by his continued absence without official leave. Obviously, he could not be subjected to investigation on this ground assuming it was necessary because he simply took French leave, as it were, and refused to go back to work. Under these circumstances, the petitioner was justified in considering his services terminated as a result of his own abandonment.
In light of this finding, is Lising entitled to separation pay?
Separation pay is defined as the amount that an employee receives at the time of his severance from the service and is designed to provide the employee with the wherewithal during the period that he is looking for another employment.
13
Under the Labor Code, it is payable to an employee whose services are validly terminated as a result of retrenchment, closure of business, or disease.
14 It is also settled that separation pay may be awarded as a measure of social justice in those instances where the employee is validly dismissed but for causes other than serious misconduct or those involving moral turpitude. 15
It is true that in PLDT v. NLRC,
16 we observed that a security guard found sleeping on the job would doubtless be subject to dismissal but could be allowed separation pay since his conduct, while inept, was not depraved. However, the doctrine is not applicable to the case at bar because Lising was not dismissed at all but caused his own separation by his refusal to return to work.
We are satisfied that despite the finding that Lising had been sleeping while on duty, the petitioner still did not terminate his services for that offense. This is clear from the letter dated October 13, 1988, where the petitioner wrote:
Dear Mr. Lising,
Our records show that you have been on absence without official leave from work since October 10, 1988.
The act you have committed is prejudicial to the interest of the company.
In view of the foregoing, kindly settle with us personally within three (3) days from receipt hereof all matters affecting your employment. Should you fail to report within the grace period it shall be construed to mean that you have resigned from this Security Services and we will report your name to the Ministry of Labor and Employment for abandonment.
It is our hope that you have understood us very clearly in this regard.
Very truly yours,
CONSOLACION B. FLORES
Director
To sustain the private respondent's claim for separation pay under the circumstances here established would be to reward him for abandoning his work. The policy of social justice cannot protect an employee who, despite his previous proven offenses, was still given an opportunity to return to his work but chose instead to reject that offer. Social justice is extended only to those who deserve its compassion.
WHEREFORE, the petition is GRANTED and the challenged decision is REVERSED for having been made with grave abuse of discretion. It is so ordered.
Griño-Aquino, Bellosillo and Quiason, JJ., concur.
#
Footnotes
1 Annex "O"; Rollo, p. 47.
2 Annex "P"; Rollo, pp. 48-49.
3 Annexes "Q" and "R"; Rollo, pp. 50-52.
4 Annex "P", supra.
5 Annex "S"; Rollo, p. 53.
6 Annex "T"; Rollo, p. 54.
7 Decided by Labor Arbiter Oswald B. Lorenzo; Rollo, p. 22.
8 Decision penned by Presiding Commissioner Lourdes C. Javier, with Commissioners Ireneo B. Bernardo and Rogelio I. Rayala, concurring; Rollo,
p. 31.
9 Dagupan Bus Co., Inc. v. NLRC, 191 SCRA 328.
10 Records, p. 117.
11 Hua Bee Shirt Factory v. NLRC, 186 SCRA 586.
12 "Annex D"; Rollo, pp. 35-36.
13 Aquino v. NLRC, 206 SCRA 118.
14 Arts. 283-284, Labor Code.
15 PLDT v. NLRC, 164 SCRA 671; Del Castillo v. NLRC, 176 SCRA 229; Cosmopolitan Funeral Homes, Inc. v. Maalat, 187 SCRA 108.
16 164 SCRA 671.
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}95450_03_93_footnotes>mainG.R. No. 95450 March 19, 1993
HOME INSURANCE AND GUARANTY CORP. vs. CIVIL SERVICE COMMISSION, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. 95450 March 19, 1993
HOME INSURANCE AND GUARANTY CORPORATION (HIGC), petitioner,
vs.
CIVIL SERVICE COMMISSION and DANIEL R. CRUZ, respondents.
The Government Corporate Counsel for petitioner.
The Solicitor General for public respondent.
Jacinto D. Jimenez for private respondent.
BELLOSILLO, J.:
This is a petition for certiorari
1 seeking to set aside the Resolutions 2 of respondent Civil Service Commission which directed petitioner Home Insurance and Guaranty Corporation (HIGC) to reappoint private respondent Daniel R. Cruz albeit to a position next lower in rank to Vice-President in petitioner corporation, and to pay him backwages from the date of his dismissal making as basis his old salary rate as Vice-President.
Private respondent was the Vice President, Finance and Administrative Group of the Home Financing Corporation, now known as the Home Insurance and Guaranty Corporation (HIGC), from 1 June 1986 to 8 July 1988, when he was not reappointed as a result of the reorganization of petitioner firm.
Initially, the appointment of private respondent Cruz was approved as temporary by the Civil Service Commission(COMMISSION for brevity) subject to his completion of the Executive Leadership and Management Program. On a reconsideration, the COMMISSION changed the appointment from temporary to permanent but still subject to his completion of the leadership program within three (3) years from the effectivity date of his appointment, otherwise he would be reverted to temporary status.
Sometime in 1987, Cruz was found responsible by an investigating committee for simple neglect of duty arising from his inefficient supervision over his subordinates arising from the loss of six (6) Land Bank checks.
In July 1988, HIGC underwent a reorganization which resulted among others in the reduction of the number of Vice President positions from (6) to three (3). Respondent Cruz was one of those not reappointed as he was found to have no civil service eligibility.
On appeal to the HIGC Reorganization Appeals Board, Cruz invoked his permanent appointment and insisted that the question of his eligibility should be left for determination by the COMMISSION.
In the meantime, Cruz sought to avail of the Early Separation Incentive Package (ESIP) granted by HIGC to those who were not reappointed and then withdrew his appeal.
On 7 December 1988, Cruz refiled his appeal after he was not granted ESIP benefits by HIGC.
On 8 December 1988, Cruz elevated his appeal for reinstatement with the COMMISSION.
On 20 February 1989, the HIGC Reorganization Appeals Board dismissed Cruz's appeal.
On 2 August 1989, however, the COMMISSION issued Resolution No.
89-543 finding Cruz to be a holder of a permanent career position at HIGC, hence, may be reappointed to a position next lower in rank to Vice President under the Finance Group without reduction in salary, pursuant to CSC Memorandum Circular No. 10, s. 1986, and that in case Cruz could not be reappointed then his application to avail of the Early Separation Incentive Package (ESIP) should be approved. It further ruled that Cruz should be paid all the benefits and privileges due him as Vice President of HIGC in connection with his reassignment to the Office of the President and Bliss Development Corporation.
Resolving petitioner's Motion for Reconsideration of the Resolution, the COMMISSION issued on 18 December 1989 Resolution No. 89-973 holding that since Cruz had not received the early retirement benefits he applied for, he should be reappointed to the position next lower to the Vice President of the Finance Group, such as Manager of the Comptrollership Department, Treasury or other Department, and that he should be paid his back salaries from the time of his termination on the basis of his old salary rate as Vice-President.
On 5 September 1990, the COMMISSION issued Resolution No. 90-823 denying petitioner's motion for reconsideration of modified Resolution No.
89-973. Hence, this petition for certiorari.
On 6 November 1990, We issued a temporary restraining order, effective immediately and to continue until further orders from the Court, enjoining respondent COMMISSION to cease and desist from enforcing its Order of 10 October 1990,
3 as well as the resolutions in question.
Petitioner now contends that respondent COMMISSION committed grave abuse of discretion amounting to lack or excess of jurisdiction when it issued the questioned Resolutions for being contrary to established principles governing the civil service career system and of the basic constitutional mandate that appointments to the civil service shall be made only according to merit and fitness; and, that the non-reappointment of Cruz was the result of a valid reorganization.
We grant the petition.
The principal issue to be resolved is whether the COMMISSION committed grave abuse of discretion amounting to lack or excess of jurisdiction when it ruled that respondent Cruz was a permanent employee enjoying security of tenure and thus may be removed from office only for cause.
Respondent Cruz contends that he was extended a permanent appointment as indicated in his appointment papers.
4 He asserts that it is not necessary for him to pass any competitive civil service examination to become eligible for he belongs to the third level in the career service, which covers positions in the Career Executive Service, and which does not require passing a competitive civil service examination.
But law and jurisprudence do not support the contention of private respondent. Presidential Decree No. 807, otherwise known as the "Civil Service Decree of the Philippines," provides the following levels of positions in the career service: (a) the first level, which includes clerical, trades, crafts and custodial service positions involving non-professional or sub-professional work in a non-supervisory or supervisory capacity requiring less than four years of collegiate studies; (b) the second level, which includes professional, technical and scientific positions involving professional, technical, or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level; and, (c) the third level, which includes positions in the Career Executive Service.
5
Positions in the Career Executive Service consist of Undersecretary, Assistant Secretary, Bureau Director, Assistant Bureau Director, Regional Director, Assistant Regional Director, Chief of Department Service and other officers of equivalent rank as may be identified by the Career Executive Service Board, all of whom are appointed by the President.
6
Entrance to the first two levels shall be through competitive examinations, while entrance to the third level shall be prescribed by the Career Executive Service Board.
7
The Constitution clearly mandates that appointments in the civil service shall be made only according to merit and fitness to be determined as far as practicable, and except to positions which are policy-determining, primarily confidential or highly technical, by competitive examination.
8
Respondent Cruz has not satisfactorily shown that his former position as Vice President in the HIGC belongs to the third level in the career service as prescribed by law. His former position as Vice President is not among those enumerated by law as falling under the third level, nor has he established that it is one of those identified by the Career Executive Service Board as of equivalent rank to those listed by law. Neither is it claimed that he was appointed by the President.
We agree then with petitioner HIGC that the position of Vice President to which Cruz was formerly appointed belongs to the second level position which under the law includes professional, technical and scientific positions involving professional, technical or scientific work in a non-supervisory or supervisory capacity requiring at least four years of college work up to Division Chief level.
Entrance to this second level is through competitive examination. In other words, a person occupying a position in this level must possess a civil service eligibility, i.e., he must have obtained a passing grade in a civil service examination, or has been granted a civil service eligibility and whose name is accordingly entered in the register of eligibles.
9 Clearly, eligibility then is a sine qua non to acquiring a permanent appointment, except those positions which are not required by law to be filled with civil service eligibles. A permanent appointment is defined as one issued to a person who meets all the requirements for the position to which he is being appointed, including the appropriate eligibility prescribed in accordance with the provisions of law, rules and standards promulgated in pursuance thereof. 10
In the case before Us, it is not disputed that respondent Cruz is without any civil service eligibility as shown by his appointment papers.
11 As such, respondent Cruz cannot be legally conferred a permanent appointment for the law is clear that career positions, particularly the first and second level positions in the service, require civil service eligibility. Thus the attestation by respondent COMMISSION that respondent Cruz's appointment is permanent must be struck down for being contrary to law. As correctly observed by the Solicitor General: "The permanent appointment of a non-civil service eligible to a career position is, from a legal viewpoint, a nullity. Not even the CSC can validate the error, as it cannot rise higher than the law that created it the same law that requires civil service eligibility for a permanent appointment to any of the two positions subject of the present petition." 12 Consequently, respondent Cruz's appointment being merely temporary in the context of the Civil Service Law, it follows that Cruz's appointment can be terminated at the pleasure of the appointing power. 13
There can therefore be no question that petitioner HIGC acted legally when, after effecting a reorganization, it no longer reappointed respondent Cruz. We agree with petitioner HIGC that the qualifications of respondent Cruz are definitely inferior to those of the incumbents of the next-lower-in-rank positions who have civil service eligibilities and are at the same time certified public accountants. As we have noted earlier, respondent Cruz is not a civil service eligible; neither is he a certified public accountant who can be vested with civil service eligibility upon examination under R.A. 1080.
14 After all, a non-eligible shall not be appointed to any position in the civil service whenever there is a civil service eligible actually available for and ready to accept appointment. 15
It is certainly erroneous for respondent COMMISSION to direct HIGC to reappoint respondent Cruz, a non-civil service eligible, to a position which requires a first grade civil service eligibility. As We have repeatedly held, appointment is an essentially discretionary power and must be exercised by the officer in whom it is vested according to his best lights, the fundamental requisite being that the appointee must possess the qualifications required by law. If he does, then the appointment cannot be faulted on the ground that there are others better qualified who should have been appointed. This is a political question involving considerations of wisdom which only the appointing authority can decide.
16
We also find reasonable, fair and valid the reorganization carried out by petitioner HIGC which led to the separation from the service of respondent Cruz. Significantly, respondent COMMISSION does not question but appears in fact to concede the validity of the reorganization effected by petitioner HIGC as reflected in the questioned CSC Resolution No. 89-543
It is admitted that this reorganization of the HIGC resulted in the reduction in the number of positions of Vice President from six (6) to three (3) only. And, after due assessment and evaluation, Cruz was found to be one of the least competent and qualified to be reinstated to the same or comparable position as shown by the comparative analysis of the qualifications of the appellant and the re-appointed Vice Presidents, Carlo P. Doble, Fernando M. Miranda and Wilfredo F. Hernandez . . . .
17
As We ruled in Dario v. Mison,
18 "[R]eorganizations in this jurisdiction have been regarded as valid provided they are pursued in good faith. As a general rule, a reorganization is carried out in 'good faith' if it is for the purpose of economy or to make bureaucracy more efficient. In that event, no dismissal (in case of dismissal) or separation actually occurs because the position itself ceases to exist. And in that case, security of tenure would not be a Chinese wall.
In sum, We find that respondent COMMISSION committed grave abuse of discretion amounting to lack or excess of jurisdiction when it insisted in holding respondent Cruz eligible for reappointment to a permanent position in a government owned and controlled corporation in derogation of the provision of law categorically proscribing such a conclusion.
WHEREFORE, the petition is GRANTED. The questioned CSC Resolutions Nos. 89-543, 89-973 and 90-823 are REVERSED and SET ASIDE. Accordingly, respondent Daniel R. Cruz is declared ineligible for reappointment in petitioner Home Insurance and Guaranty Corporation for lack of civil service eligibility as required by law.
SO ORDERED.
Narvasa, C.J., Cruz, Feliciano, Padilla, Bidin, Griño-Aquino, Regalado, Davide, Jr., Romero, Nocon, Melo, Campos, Jr. and Quiason, JJ., concur.
#
Footnotes
1 Under Rule 65, Rules of Court, and Sec. 28, Chap. 5, Bk. II, Administrative Code of 1987 (E.O. No. 292).
2 Resolution No. 89-543, dated 2 August 1989, pp. 55-60, Rollo, Resolution No.
89-973, dated 18 December 1989, pp. 62-65, Rollo; Resolution No. 90-823, dated 5 September 1990, pp. 67-74, Rollo.
3 The order directed the President and General Manager of HIGC to reappoint private respondent Daniel R. Cruz as Manager either of the Comptrollership Department, Treasury or other Department, and to pay him his back salaries reckoned from the date of illegal termination based on the old rate for the position of Vice-President. It arose from private respondent's request for implementation of CSC Resolution No. 90-823 dated 5 September 1990 reiterating CSC Resolutions Nos. 89-973 and 89-543 dated 18 December 1989 and 2 August 1989, respectively.
4 Comment, Annex "1", p. 127, Rollo.
5 Sec. 7, Art. IV, P.D. 807.
6 Sec. 5 (3), Id.
7 Sec. 7 (b), Id.
8 Sec. 2 (2), Art. IX-B, 1987 Constitution.
9 Sec. 3(h), Art. III, P.D. 807.
10 Sec. 25(a), Art. VIII, Id.
11 Comment of the Solicitor General, p. 156, Rollo.
12 Ibid.
13 Carillo v. Court of Appeals, No. L-24554, 31 May 1967, 77 SCRA 170; Cuadra v. Cordova, No. L-11602, 21 April 1958, 54 O.G. 8063.
14 "An Act Declaring the Bar and Board Examinations as Civil Service Examinations," promulgated 15 June 1954.
15 Sec. 26, Chap. 5, Subtitle A, Title I, Bk. V, Administrative Code of 1987 (E.O. No. 292).
16 Español v. Civil Service Commission, G.R. No. 85479, 3 March 1992, 206 SCRA 715, 721, citing Luego v. Civil Service Commission, No. 69137, 5 August 1986, 143 SCRA 327; Patagoc v. Civil Service Commission, G.R. No. 90229, 14 May 1990, 185 SCRA 411; Lapinid v. Civil Service Commission, G.R. No. 96298, 14 May 1991, 197 SCRA 106.
17 See Petition, Annex "J", p. 57, Rollo.
18 G.R. No. 81954, 8 August 1989, 176 SCRA 84.
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}95771_03_93_footnotes>mainG.R. No. 95771 March 19, 1993
LAWRENCE BOWE, ET AL. vs. COURT OF APPEALS, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 95771 March 19, 1993
LAWRENCE BOWE and CIRILO ARBOLARIO, petitioners,
vs.
HONORABLE COURT OF APPEALS, and TEODORO R. GARCIA, represented by his son, SERAFIN M. GARCIA, respondents.
Mario O. Leyco for petitioners.
Ricardo J.M. Rivera Law Office for private respondent.
CAMPOS, JR., J.:
This is a petition for review on certiorari seeking the reversal of the Decision * of December 18, 1989 and the Resolution ** of October 23, 1990 of the respondent Court of Appeals in CA-G.R. CV No. 17201, entitled "TEODORO R. GARCIA, represented by his son, SERAFIN GARCIA v. LAWRENCE BOWE, ET AL." affirming the decision" of the Regional Trial Court of Olongapo City dated December 17, 1987 in Civil Case No. 451-0-84 for termination of a lease contract with damages and reimbursement of rents.
As gathered from the records, the facts of the case are as follows:
On June 27, 1979, private respondent (plaintiff below) Teodoro Garcia's wife Luz Garcia, now deceased, as owner and lessor of a two (2) storey, 6-door apartment building located at No. 2-B Leo St., Lower Kalaklan, Olongapo City entered into a contract of lease
1 covering the same property with Laura Arbolario (now deceased, substituted by her son by previous marriage Lawrence Bowe), 2 for a period of five (5) years starting September 1, 1979 to terminate on September 1, 1984. 3 It was stipulated, among others, that herein petitioners can sublease the premises and collect rentals therefrom and shall start to pay private respondent the amount of P30,000.00 as yearly rental after the indebtedness of private respondent to petitioners in the amount of P75,000.00 is fully and completely paid by private respondent to the petitioners out of the rental received by the latter on said property. 4
Sometime in October of 1982, during the efficacy of the contract of lease, Teodoro Garcia and his son, Serafin Garcia, verbally agreed to sell the disputed house and lot to the spouses Cirilo and Laura Arbolario for a consideration of P220,000.00.
5
Pursuant to said agreement, the first of the downpayments was made on August 18, 1982
6 for P2,600.00. Said receipt was signed by Serafin Garcia in the presence of the petitioners. 7 Succeeding payments were also made in installment and private respondents admittedly received the total amount of P66,000.00 8 and it was agreed that the balance will be paid by the petitioners to private respondent upon the latter's (Teodoro Garcia) return to the Philippines when he could execute the deed of absolute sale. 9 After the petitioners' last payment on December 22, 1983 private respondent wrote them a letter informing them that the deal is off 10 and after the expiration of the lease contract on September 1, 1984, private respondent's son Serafin went to petitioners and offered an accounting of the amounts of money they have paid (to compute them as rentals) but the petitioners refused, claiming that they already own the property. 11
Hence, Teodoro Garcia, represented by his son, Serafin Garcia filed a complaint against Laura Arbolario, joined by her husband Cirilo (Carlos) Arbolario before the RTC of Olongapo docketed as Civil Case No. 451-0-84, alleging that the conditions on said contract of lease have been fully satisfied; that petitioner's unjust refusal to vacate the premises after September 1, 1984 has caused actual damages by way of rental from September 2, 1984 up to the time petitioners shall have relinquished the premises; and that defendant's violation of their contractual obligation caused exemplary and moral damages, attorney's fees plus incidental expenses for litigation; and thus prayed for: the termination of the contract of lease as of September 1, 1984; petitioners to reimburse private respondent of all rents received from said 6-door apartment from September 2, 1984 up to the time she shall vacate the premises by virtue of judgment; and petitioners to pay attorney's fee of P10,000.00, miscellaneous expenses of P2,000.00 and moral and exemplary damages.
12
Petitioners' admit the existence of the contract of lease and assert in defense that in 1982 private respondent agreed to sell to them the house and lot subject of the contract of lease for P220,000.00; that pursuant to said agreement, private respondent or through his children received from petitioners down payments in the total amount of P66,600.00 and it was agreed that the balance will be paid by petitioners to private respondent as soon as the latter returned to the Philippines when he could execute the deed of absolute sale; that petitioners collected rental from tenants thereon and made considerable improvements and repairs on the apartment; that they have a perfect right not to vacate the premises being owners thereof by virtue of the sale; and as counterclaim, petitioners allege that despite the agreement to sell, private respondent refused to accept petitioners' offer and tender of the payment of the additional amount of P153,400.00 which petitioners are willing and able to pay at any time or upon order of the court; and thus praying that the case be dismissed.
After hearing the lower court rendered its decision dated December 17, 1987, the dispositive portion of which reads:
WHEREFORE, from the FOREGOING considerations, this Court hereby renders judgment as follows:
1) Pronouncing the termination of the written and implied Contract of Lease between plaintiff and the defendants;
2) Directing the defendants to vacate the apartment building and land located at No. 2-B Leo Street, (formerly Indiana Street) Lower Kalaklan, Olongapo City, and surrender the same to the plaintiff-owner;
3) Directing the defendants to pay the amount of P6,900.00 representing the balance of the unpaid rentals from September 1979 to September 1984;
4) Directing the defendants to pay plaintiff annual rentals from September 1, 1984 to September 1, 1987, which this Court holds as an implied renewal of their written Contract of Lease at the same yearly rental of P30,000.00 or a total of P90,000.00 and thereafter to pay the amount of P2,500.00 every month from October 1, 1987 up to the time that defendants shall vacate the premises;
5) Directing the defendants to pay the plaintiff the amount of P8,000.00 by way of attorney's fees and costs; and
6) All other contending claims of the parties are hereby DISMISSED.
13
Petitioners appealed the decision of the lower court to the respondent Court of Appeals which affirmed in full
14 the said decision.
Hence, this petition.
Petitioners assign the following errors:
THE HONORABLE COURT OF APPEALS SERIOUSLY ERRED IN AFFIRMING AND IN FINDING NO REVERSIBLE ERROR IN THE APPEALED DECISION OF THE TRIAL COURT A QUO BECAUSE:
A. IT ERRED IN FINDING THAT THE CONTRACT OF SALE WAS NEVER CONSUMMATED.
B. IT ERRED IN FINDING THAT THE CONTRACT OF SALE WAS RESCINDED.
C. IT ERRED IN PLACING UNDUE EMPHASIS ON NOVATION OF THE CONTRACT OF LEASE WHEN THE SAME HAS BEEN SUPPLANTED AND/OR ABANDONED.
D. IT ERRED IN NOT DISMISSING THE CASE AS AN EJECTMENT CASE EXCLUSIVELY COGNIZABLE BY THE INFERIOR COURT, HENCE, THIS HONORABLE COURT OF APPEALS HAS NO APPELLATE JURISDICTION OVER THE PRESENT CASE.
The main issue to be resolved is whether or not the contract of lease has been supplanted and/or abandoned.
Petitioners contend that the contract of lease between them and private respondent was already supplanted and/or abandoned in 1982 when their contract of sale, although admittedly verbal, was perfected and partially performed. Consequently, their relationship as lessor and lessee was terminated effectively and ipso facto upon such perfection of their contract of sale. To bolster their contention, petitioners introduced several receipts, Exhibits 1-6, as evidence of their payment in installments.
Private respondent, on the other hand, counters that the contract was not one "of sale" but a mere "contract to sell", or at most, a conditional contract of sale.
The petition is devoid of merit.
Indeed a contract of sale is perfected by mere consent.
15 It is not enough to state, however, that the contract of sale, being consensual, became effective between petitioners and private respondent as of 1982. Such fact is beyond dispute. What is crucial at this point is to ascertain those undertakings which the parties have consented in order to determine the nature of their agreement.
According to Lim vs. Court Appeals:
16
. . . A distinction must be made between a contract of sale in which title passes to the buyer upon delivery of the thing sold and a contract to sell . . . where by agreement the ownership is reserved in the seller and is not to pass until the full payment of the purchase price is made. In the first case, non-payment of the price is a negative resolutory condition; in the second case, full payment is a positive suspensive condition. Being contraries, their effect in law cannot be identical. In the first case, the vendor has lost and cannot recover the ownership of the land sold until and unless the contract of sale is itself resolved and set aside. In the second case, however, the title remains in the vendor if the vendee does not comply with the condition precedent of making payment at the time specified in the contract.
Inevitably, the foregoing distinctions lead to a finding that the verbal agreement between petitioners and private respondent was only a contract to sell, not a contract of sale.
A careful examination of the receipts,
17 presented by the petitioners shows that only Exhibits "2", "4" and "5" have direct bearing on the agreement of the petitioners and private respondent regarding the disputed properties. Those exhibits reveal that the amounts contained therein are either "downpayments", "deductible from apartment sale" or "an advanced payment of unconsummated sale". Those are the only terms contained in the said exhibits. Nothing more.
Prescinding therefrom, there was no immediate transfer of title to petitioners to speak of as would have happened if there had been a sale at the outset.
18 Clearly the absence of formal deed of conveyance strongly indicates that the parties did not intend immediate transfer of title, but only a transfer after full payment of the price. 19
It is unlikely that if the contract were an absolute sale, the petitioners would not have insisted that the same be reduced to writing despite several opportunities to do so. Another thing is that at the time petitioners were delivering the unpaid balance which was allegedly rejected by private respondent, they simply asked private respondent (Teodoro Garcia) to give back the amounts that had been given as advance payment.
20 This simply goes against the grain of their argument that they are already the owners of the disputed properties. Hence, as payment of the consideration was a positive suspensive condition, title to the subject property never passed to the petitioners.
This Court's ruling in Lim v. Court of Appeals,
21 is worth quoting:
It is true that the contract to sell imposes reciprocal obligations and so cannot be terminated unilaterally by either party. Judicial rescission is required under Article 1191 of the Civil Code. However, this rule is not absolute. We have held that in proper cases, a party may take it upon itself to consider the contract rescinded and act accordingly albeit subject to judicial confirmation, which may or may not be given. It is true that the rescinding party takes a risk that its action may not be approved by the court. But as we said in University of the Philippines v. De los Angeles [35 SCRA 102 (1970)]:
xxx xxx xxx
. . . But the law definitely does not require that the contracting party who believes itself injured must first file suit and wait for a judgment before taking extrajudicial steps to protect its interest. Other-wise, the party injured by the other's breach will have to passively sit and watch its damages accumulate during the pendency of the suit until final judgment of rescission is rendered when the law itself requires that he should exercise due diligence to minimize its own damages.
It is also contended by petitioners that the suit initiated by herein private respondent denominated, as termination of lease with damages and reimbursement of rents, was actually a suit for unlawful detainer. Hence, the Regional Trial Court has no jurisdiction to entertain the same.
This contention is also bereft of merit.
There is no question that the original lease contract between the parties was only for five (5) years nonetheless petitioners continued occupying the leased premises beyond that date and it was only sometime in October 1984, that Serafin Garcia went to see petitioners for accounting purposes regarding the advance payment made by the latter and informing them at the same that a case will be filed against them.
22 There is no evidence on record that petitioners were served with notice to vacate. This Court will have to determine whether such continued occupancy was with or without the implied acquiescence of private respondent.
An implied new lease or tacita reconduccion will set in if it is shown that: (a) the term of the original contract of lease has expired; (b) the lessor has not given the lessee a notice to vacate; and (c) the lessee continued enjoying the thing leased for fifteen days with the acquiescence of the lessor. This acquiescence may be inferred from this failure to serve a notice to quit.
23
In the instant case, there is an implied renewal of the lease contract. As aforementioned, no talks have been held between the lessor and the lessees concerning the renewal of the lease. By the inaction of the lessor, there can be no inference that he intends to discontinue it. In such a case, no less than an express notice to vacate must be made within the statutory 15-day period. Not only was there an absence of notice to vacate but there were also no communications that transpired between the parties regarding the lease. The earliest communication that has been shown was in October, 1984, definitely way beyond the 15-day statutory period required by law.
Considering that there was an implied renewal of lease, there is no unlawful detainer to speak of. The filing of the termination of contract was, therefore, appropriate and clearly the Regional Trial Court has jurisdiction over the case since it is an action involving the title to or possession of real property or any interest therein.
24
WHEREFORE, the petition is DENIED. The decision and resolution of the respondent Court of Appeals dated December 18, 1989 and October 23, 1990 respectively, are AFFIRMED.
Costs against petitioners.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Nocon, JJ., concur.
#
Footnotes
* Penned by Justice Alfredo Marigomen, concurred in by Justices Josue N. Bellosillo and Cezar D. Francisco.
** Penned by Judge Alicia L. Santos.
1 Original Records, pp. 5-6.
2 Ibid., p. 65; p. 176.
3 Rollo, p. 59.
4 Ibid., p. 21.
5 Original Records, p. 29; TSN, February 10, 1987, pp. 7-8.
6 Exh. "1".
7 Exh. "l-a"; TSN, February 10, 1987, p. 10.
8 Exhs. "1" to "6".
9 Rollo, pp. 21-22.
10 Ibid., pp. 10-11.
11 Ibid., pp. 11-12; Comment p. 3, Rollo, p. 73.
12 Complaint, p. 2.
13 Original Records, pp. 159-160.
14 Rollo, p. 69.
15 Dalion vs. Court of Appeals, 182 SCRA 872 (1990).
16 182 SCRA 564, 570 (1990), citing Sing Yee v. Santos, 47 O.G. 6372 (December, 1951).
17 Exhs. "1-6".
18 Lim v. Court of Appeals, supra, note 16.
19 Manuel v. Rodriguez, et al., 109 Phil. 1 (1960).
20 TSN, August 21, 1986, p. 21.
21 Supra, note 16 at pp. 571-572.
22 TSN, February 10, 1987, p. 12.
23 Arevalo Gomez Corporation v. Lao Hian Liong, 148 SCRA 372 (1987).
24 Guasch v. Court of Appeals, 175 SCRA 31 (1989).
# $ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}96721_03_93_footnotes>mainG.R. No. 96721 March 19, 1993
OCC. LAND TRANSPORTATION COMPANY, INC., ET AL. vs. COURT OF APPEALS, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 96721 March 19, 1993
OCCIDENTAL LAND TRANSPORTATION COMPANY, INC. and EDGARDO ENERIO, petitioners,
vs.
HONORABLE COURT OF APPEALS, HEIRS OF TRENCIO ALMEDILLA, ALBERTO PINGKI-AN AND HEIRS OF PACIFICO CARBAJOSA, SR., respondents.
Alaric P. Acosta for petitioners.
Uldarico B. Mejorada & Yolinda C. Bautista for Heirs of P. Carbajosa, Sr.
Public Attorney's Office for Heirs of T. Almedilla and A. Pingki-an.
NOCON, J.:
The legal question raised in this petition for review on certiorari of the decision of the Court of Appeals,
1 affirming in toto the decision of the Regional Trial Court of Zamboanga del Norte (Branch VI Dipolog City), presided by the Hon. Daniel B. Bernaldez 2 is whether or not the trial court can take judicial notice of the decision of another case involving a similar issue. The appellate and lower courts ruled in the affirmative.
The case began with the collision of a Ford Fiera and a Carina Express No. C-24 passenger bus in Bunawan, Calamba, Misamis Occidental on November 25, 1975 at about six o'clock a.m. As a result of this, the Ford Fiera was thrown into the canal on the right side of the road. Its driver, Pacifico Carbajosa, Sr. was pinned under the steering wheel, while the engine was burning, causing him to be seriously burned and later die of such injuries. Trencio Almedilla, the owner of the Fiera which was registered under Sevilla Line, and Alberto Pingkian were likewise in the Fiera and suffered various injuries as a result of the incident. Neither the driver nor the passengers of the Carina Express No. C-24 stopped to assist the victims, but rather the bus proceeded towards Sapang Dalaga.
3
The owner of the Carina passenger bus, Occidental Land Transportation Company filed a case for damages against Sevilla Line and/or William Sevilla, the registered owner of the Ford Fiera, which case was docketed as Civil Case No. 3156 before the Court of First Instance, Branch III, Oroquieta City. Trencio Almedilla and Alberto Pingkian also filed a civil suit for damages against Occidental Land Transportation Company, Inc. and the driver of the Carina bus, Edgardo Enerio. Later the heirs of Pacifico Carbajosa filed a complaint-in-intervention. This case was docketed as Civil Case No. 2728 before the Regional Trial Court of Zamboanga del Norte, Branch VI, Dipolog City.
On July 30, 1977, Judge Rodolfo A. Ortiz of the Oroquieta court rendered a decision in Civil Case No. 3156 finding the driver of the Carina passenger bus and not the driver of the Ford Fiera, as negligent.
4
On March 11, 1986, more than ten years after the inception of the case, Judge Daniel B. Bernaldez rendered the decision in Civil Case No. 2728 against Occidental Land Transportation Company, Inc. and Edgardo Enerio.
5 The dispositive portion reads:
ACCORDINGLY, and in view of all the foregoing, the Court hereby renders judgment as follows:
1. Ordering the defendants, Occidental Land Transportation Company and Edgardo Enerio, to pay to the plaintiffs, Trencio Almedilla and Alberto Pingkian, the following:
For Plaintiff Almedilla:
(a) P 9,473.80 for the repair of the damaged Ford Fiera;
(b) P400.00 for hospitalization;
(c) P100.00 daily for the income of the Ford Fiera starting from November 25, 1975 to March 10, 1986;
(d) P5,000.00 for moral damages.
For Plaintiff Pingkian:
(e) P5,000.00 for moral damages;
(f) P100.00 for loss of income;
(g) P100.00 for incidental expenses; and
(h) P1,000.00 for attorney's fees.
2. Ordering the defendants aforenamed to pay to the intervenors Carbajosas the following;
(a) P6,000.00 for hospitalization;
(b) P3,000.00 for embalming, funeral services and last prayers;
(c) P5,000.00 for moral damages;
(d) P5,000.00 for attorney's fees; and
(e) P500.00 for actual and incidental expenses.
3. Dismissing the complaint-in-intervention insofar as it concerns plaintiffs Trencio Almedilla and Alberto Pingkian.
4. Denying the reliefs prayed for in the answer to the complaint-in-intervention of plaintiffs Trencio Almedilla and Alberto Pingkian;
5. Denying the reliefs prayed for in the answer to the complaint-in-intervention of the aforenamed defendants;
6. Dismissing the counterclaim of the defendants aforenamed for lack of merit; and
7. Ordering the defendants aforenamed to pay the costs.
SO ORDERED.
6
The facts of the case were "adopted by reference" from the decision of the then Court of First Instance, Branch III of Oroquieta City in Civil Case No. 3156.
7
It reads as follows:
That at about 4:50 o'clock in the morning of November 25, 1975, Trencio Almedilla, who was the real owner of the Ford Fiera, but attached to the Sevilla Lines of defendant William Sevilla, left for Ozamis City, on board his Ford Fiera, to buy textiles, together with Alberto Pingkian who wanted to visit his aunt at Ozamis City. Reaching Dipolog City, Trencio Almedilla came upon Pacifico Carbajosa, who wants (sic) to load fish in the Ford Fiera for Ozamis City. As it was an opportune occasion, Trencio agreed to load the fish of Pacifico for a freight of P130.00. So they loaded the fish of Pacifico at Miputak, then got gasoline at a Caltex Station and proceeded towards Ozamis City. Trencio, was driving his Ford Fiera, was running slowly as Pacifico alias "Balodoy" told him not to go fast so that his fish will not get destroyed. After passing Sapang Dalaga, at Misamis Occidental, Trencio developed stomach ache. At this, "Balodoy" requested that Trencio allow him to drive the Ford Fiera as he was an experienced driver. Trencio agreed. And so, with "Balodoy" on the wheels of the Ford Fiera, they proceeded slowly for fear that the fish will get damaged. Reaching Bunawan, at Calamba, and while negotiating a curb at the descending portion of the asphalted national highway, which was wet, as it was raining, a Carina passenger bus was running fast in an ascent, zigzagging towards them. Because of this, the Ford Fiera went towards the extreme right of the road with its right front and rear tires already running at (sic) the ground shoulder, but even as the Ford Fiera tried to avoid the zigzagging Carina Express No. C-24, the said Carina bus jerked towards the left, hitting, as a result, the Ford Fiera at the left fender and hood, throwing it to the canal at the right side, with engine burning. The Carina passenger bus continued to swerve towards the left until it turn about, facing towards the direction of Ozamis City. Balodoy was pinned by the steering wheel to his driver's seat and was seriously injured, Pingkian and Trencio were also injured, but they were well enough to try to help to extricate Balodoy, not until Genito Compania got a piece of wood from his house nearby, which he used as a lever to pry out Balodoy. The driver of the Carina passenger bus, which had three (3) passengers, at that time, did not help Balodoy. Instead it proceeded towards Sapang Dalaga.
The accident was reported to the police authorities of Calamba, as a result of which Acting Station Commander Arceno of Calamba Police Station, Police District No. II, made a Police Report dated November 25, 1975 as follows:
POLICE REPORT
At about 0645 Hrs More or less 25, Nov. Sevilla Line bearing plate No. 8-B940 which was driven by Pacifico Carbajosa y Gemillan, 40 years old, married and a resident of 398 Martines St., Dipolog City, said driver was burned and injured seriously when on the way at Bunawan this Municipality, due to a bumping incident.
Bus Line marked Carina bearing Plate No. 939 driven by Edgardo Enerio y Paglinawan of Sapang Dalaga, Misamis Occidental, Hit and run and surrendered to Sapang Dalaga office of the Station Commander.
The driver of Sevilla Line with his two companions were rushed to the Calamba Community Hospital for treatment. The scene of the incident was investigated by F/Sgt. Pagalaran, Sr.
8
Petitioners Occidental Land Transportation Company Inc. and Edgardo Enerio appealed from the above-quoted decision to the Court of Appeals.
9 They assigned the following errors:
I
THAT THE TRIAL COURT ERRED IN DECIDING THE CASE BASED ON A DECISION RENDERED IN ANOTHER CASE.
II
THAT THE TRIAL COURT ERRED IN NOT HOLDING THAT' THE FORD FIERA WAS EXCLUSIVELY RESPONSIBLE FOR THE ACCIDENT.
III
THAT THE TRIAL COURT ERRED IN NOT HOLDING THAT THE FORD FIERA DID NOT BELONG TO THE PLAINTIFF TRENCIO ALMEDILLA.
10
The Court of Appeals affirmed the decision in toto and disposed of the errors assigned in the following manner:
Anent the first assigned error, such step of the trial court in taking judicial notice of Civil Case No. 315(6) is sanctioned under Rule 129, Sec. 1 of the Revised Rules of Court. Thus, as aptly put by Chief Justice Moran "Courts have also taken judicial notice of previous cases to determine whether or not the case pending is a moot one or whether or not a previous ruling is applicable in the case under consideration (5 Moran, Comments on the Rules of Court, 1970, ed., p. 50).
Hence, considering the previous decision in Civil Case No. 315(6) involving the same vehicular accident had already put to rest the issue as to the negligence of defendants, the court properly took cognizance of said decision as a matter of convenience, as these facts are capable of unquestionable demonstration (Baguio vs. De Jalagat 42 SCRA 337).
As to the liability of the defendants in the vehicular mishap, We concur with the finding of the trial court in Civil Case No. 315(6) which held inter alia:
Moreover, it does not seem possible, as claimed by plaintiff's own witness, Crisanto Andus, that while negotiating the curb, and while starting to descend, the Ford Fiera slid towards the Carina Express No. C-24, hitting its left rear as a consequence. For the Ford Fiera was admittedly loaded with fish and that consequently, because of the weight of its cargo, in relation to its capacity, it will have more traction even in a slippery wet asphalted road; and, as such, the probability of its sliding towards the extreme left side of the road is improbable, if not remote. Not so in the case of Carina Express No. C-24, which had only three (3) passengers at that time, or even fifteen (15) passengers, as claimed by the plaintiff. For with this load, the said bus was undoubtedly travelling without much traction, since its passenger load was not enough to give it stability while running, considering its size and body weight; and that, therefore, it must have been, as described by defendant's witnesses, that Carina Express No. C-24, was running fast in a zigzagging manner along the slippery wet asphalted national highway causing its left rear to jerk towards the left, with the driver losing control, sideswiping the Ford Fiera in the process, and then continuing its swerving towards the left until it turned about facing Ozamis City.
Correlatively, it is well-settled that the conclusions of facts of the trial court are entitled to great respect and shall not be generally disturbed on appeal, because it is in a better position that the appellate tribunal to examine the evidence directly and to observe the demeanor of the witness while testifying (Hermo vs. Court of Appeals, 155 SCRA 24).
11
Hence this petition.
The errors assigned by the petitioners are almost identical to those raised before the appellate court. They claim that it was error for the respondent court to "uphold the decision of the trial court based on the judgment rendered in another case," and "uphold the grant of damages for the Ford Fiera when the same did not belong to Trencio Almedilla."
12
The petition is devoid of merit.
No error was committed by the respondent court when it upheld the findings of the trial court in Civil Case No. 2728.
The reasons advanced by the respondent court in taking judicial notice of Civil Case No. 3156 are valid and not contrary to law. As a general rule, "courts are not authorized to take judicial notice, in the adjudication of cases pending before them, 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 heard or are actually pending before the same judge." The general rule admits of exceptions as enumerated in Tabuena v. Court of Appeals,
13 the Court, citing U.S. v. Claveria,14 which We quote:
. . . in the absence of objection, and as a matter of convenience to all parties, a court may properly treat all or any part of the original record of a case filed in its archives as read into the record of a case pending before it, when, with the knowledge of the opposing party, reference is made to it for that purpose, by name and number or in some other manner by which it is sufficiently designated; or when the original record of the former case or any part of it, is actually withdrawn from the archives by the court's direction, at the request or with the consent of the parties, and admitted as a part of the record of the case then pending.
It is clear, though, that this exception is applicable only when, 'in the absence of objection,' 'with the knowledge of the opposing party,' or 'at the request or with the consent of the parties,' the case is clearly referred to or 'the original or part of the records of the case are actually withdrawn from the archives' and 'admitted as part of the record of the case then pending.' (Emphasis supplied).
The Court in Tabuena ruled that the conditions necessary for the exception to be applicable were not established, such as that ". . ., (t)he petitioner was completely unaware that his testimony in Civil Case No. 1327 was being considered by the trial court in the case then pending before it. As the petitioner puts it, the matter was never taken up at the trial and was 'unfairly sprung' upon him, leaving him no opportunity to counteract."
15
The same is not true in the instant case. Civil Case No. 3156, which the lower court in Civil Case No. 2728 took judicial notice of, decided the issue of negligence between the driver of the two vehicles involved in the subject collision. It was therefore a matter of convenience, to consider the decision rendered in that case.
And unlike the factual situation in Tabuena v. CA, the decision in Civil Case No. 3156 formed part of the records of the instant case (Civil Case No. 2728) with the knowledge of the parties and in the absence of their objection. This fact was pointed out by the lower court, to wit:
The . . . findings of the Oroquieta Court became as conclusive upon the company and its driver by their acquiescence and silence. . . . (Decision of lower court. p. 12; records p. 239)
xxx xxx xxx
Returning to Exhibit "O," supra (Decision, Civil Case No. 3156, CFI, Branch III, Oroquieta City), the Court hastens to add: Said exhibit has not been objected to nor commented upon by the defendants Company and Enerio, through their counsel, . . . .
16
This being the case, petitioners were aware that Exhibit "O" (Decision in Civil Case No. 3156) had formed part of the records of the case and would thereby be considered by the trial court in its decision.
Furthermore, upon perusal of Exhibit "O," and the decision of the lower court in the instant case, there is no showing of any irregularity but rather a logical discussion of the case and the evidence presented before the court. The lower court did not merely "adopt by reference" the findings of fact of the Oroquieta court, but used it in its discourse to obtain the conclusions pronounced in its decision.
Petitioner alleges that the Ford Fiera did not belong to Trencio Almedilla, but to its registered owner Sevilla Lines, and therefore the grant of damages for its repair was improperly awarded to private respondent Almedilla. This factual matter has already been decided upon in the trial court.
The fact that the Fiera was owned by Almedilla though registered with Sevilla Line, will not alter the conclusion arrived at by the lower court. The party who stands to benefit or suffer from the decision is admittedly private respondent Almedilla and not Sevilla Lines. William Sevilla admitted that the real owner of the vehicle was Trencio Almedilla, in the case for damages by Occidental Land Transportation against Sevilla Lines and/or William Sevilla.
17 Having thus been settled in the lower court, petitioner is now no longer in any position to question the ownership of the Fiera or the award of damages to private respondent Almedilla.
WHEREFORE, finding no error in the decision of the Court of Appeals dated September 28, 1990 (CA-G.R. CV No. 10176) affirming the decision of the trial court dated March 11, 1986, the petition for review is denied for lack of merit with costs against the petitioners.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Campos, Jr., JJ., concur.
#
Footnotes
1 Trencio Almedilla, Pacifico Carbajosa and Alberto Pingkian, represented by his natural guardian Domingo Pingkian, vs. Occidental Land Transportation Company, Inc. and Edgardo Enerio; Heirs of Pacifico Carbajosa, Sr. and Accredited Underwriters Agencies, Inc., Intervenors; C.A.-G.R. CV No. 10176; September 28, 1990; Rollo, p. 15. Penned by Justice Manuel C. Herrera with the concurrence of Justice Eduardo R. Bengzon and Justice Jainal D. Rasul.
2 Civil Case No. 2728, March 11, 1986; Records, p. 228.
3 Petition, pp. 1-3; Rollo, 7-9. Comment, pp. 3-5; Rollo, pp. 33-36.
4 Exhibit "O," Records, p. 269.
5 Records, p. 228.
6 Id., pp. 17-19; Records, pp. 244-247.
7 Occidental Land Transportation Company, Inc. v. Sevilla Lines and/or William Sevilla; Exhibit "O" for Intervenors-Heirs of Carbajosa; Decision of the lower court, p. 7; Records, p. 234.
8 Id., pp. 5-7, Records, pp. 273-275.
9 Supra, note 1.
10 Decision of the Court of Appeals, pp. 5-6; Rollo, pp. 19-20.
11 Id., pp. 6-7; Rollo, pp. 20-21.
12 Petition, p. 4; Rollo, p. 10.
13 196 SCRA 656 (1991).
14 29 Phil. 527 (1915).
15 196 SCRA 656.
16 Decision of the Lower Court, pp. 15-16; Records, pp. 242-243.
17 Decision in Civil Case No. 3156, p. 7; Exhibit "O," Records, p. 275.
#
$ + GRSI ® Copyrightregno N94-027
G.R. No. 97070 March 19, 1993
ARTURO GRAVINA, ET AL. vs. COURT OF APPEALS, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 97070 March 19, 1993
ARTURO GRAVINA AND ZENAIDA GRAVINA, petitioners,
vs.
THE HON. COURT OF APPEALS, THE HON. ALFRIN S. VICENCIO, PRESIDING JUDGE, BR. 50, RTC, MANILA ALFREDO B. TAN, LUCILA EDNA TAN, DAILY SAVINGS AND LOAN ASSOCIATION, INC., AND MERCANTILE FINANCING CORPORATION, respondents.
Joaquin P. Yuseco, Jr. for petitioners.
Teofilo Ragodon for spouses Tan.
GRIÑO-AQUINO, J.:
Petitioners herein, Spouses Arturo Gravina and Zenaida Gravina, were original owners of a 116 square-meter lot in Tondo, Manila, which they mortgaged to the Daily Savings Loan Association (DLSA) in 1973, as security for loans totalling P109,000.00, obtained by them from the Association.
Having failed to settle their obligation when it fell due, the DLSA foreclosed the mortgage on September 10, 1974, and bought the property as the highest bidder at the public auction sale.
On October 10, 1974, ownership of the foreclosed property was consolidated in favor of DLSA and Transfer Certificate of Title No. 119695 of the Registry of Deeds of Manila was issued in its name.
On January 29, 1976, DLSA sold the property to Mercantile Financing for P40,000.00. TCT No. 119695 was cancelled and TCT No. 120865 of the Registry of Deeds of Manila was issued to Mercantile Financing Corporation.
On February 25, 1976, Mercantile Financing Corporation sold the property to the Spouses Alfredo and Lucila Edna Tan for P66,500.00. TCT No. 1121130 of the Registry of Deeds of Manila was issued to the vendees.
On March 3, 1983, the Tans filed an ejectment complaint against the petitioners, Arturo and Zenaida Gravina, in the Metropolitan Trial Court of Manila (Civil Case No. 011866). A decision was rendered in favor of the Tans. Petitioners appealed to the Regional Trial Court of Manila. The RTC dismissed the case holding that the proper remedy of the Tans was an accion reivindicatoria or for recovery of property.
The Tans filed an action to recover possession in the Regional Trial Court of Manila (Civil Case No. 83-16015). On November 7, 1986, the trial court rendered a decision in their favor, ordering the Gravinas to vacate and surrender the possession of the property to them (the Tans). The Gravina spouses filed a notice of appeal.
However, before the perfection of the appeal, the petitioners (now private respondents) filed on November 26, 1986, a motion for execution pending appeal. The trial judge denied the motion. The private respondents went to the Court of Appeals on certiorari assailing the denial of their motion.
The Court of Appeals consolidated the appeal of the Gravinas (CA-G.R. CV No. 13369) with the petition for certiorari filed by the Tans. On July 9, 1990, the Court of Appeals rendered judgment as follows:
WHEREFORE, the judgment appealed from in CA-G.R. CV No. 13369 entitled "Alfredo Tan, et al. vs. Arturo Gravina, et al., Defendants and Third Party Plaintiffs" is hereby AFFIRMED. Costs against the appellants; and
In the certiorari case, CA-G.R. SP No. 12432 entitled "Alfredo Tan, et al., vs. Hon. Alfin Vicencio, et al.," the petition is DENIED DUE COURSE and ordered DISMISSED. No pronouncement as to costs. (p. 37 Rollo.)
The Gravinas have filed the instant petition for review of the Court of Appeals' decision raising the following issues:
1. Whether or not the foreclosure of the mortgage executed by the Daily Savings and Loan Association Inc., was valid;
2. Whether or not the public auction sale by the sheriff was made in accordance with law;
3. Whether or not the consolidation of title in the name of Daily Savings and Loan Association was valid; and
4. Whether or not the sale to the mortgagee bank personnel is valid.
The first three issues focus on the validity of the extrajudicial foreclosure of the mortgage which according to the petitioners, was done without notice to them as mortgagors. Whether or not they were notified of the extrajudicial foreclosure is, however, a factual issue.
The finding of the trial court, which was sustained by the Court of Appeals, was that the DLSA did send a letter to the petitioners informing them of the foreclosure of the mortgage but the petitioners failed to claim the letter. The Court also found that said notice was published in the Evening News, a newspaper of general circulation in the City of Manila. We are bound by those factual findings of the Court of Appeals (Leuterio vs. CA, 197 SCRA 369).
Moreover, Section 3 of Act No. 3135 (Mortgage Law) requires only the posting of the notices of sale in three public places and the publication of the same in a newspaper of general circulation. Personal notice is not required.
Sec. 3 Notice shall be given by posting notices of the sale for not less than twenty days in at least three public places of the municipality or city where the property is situated, and if such property is worth more than four hundred pesos, such notice shall also be published once a week for at least three consecutive weeks in a newspaper of general circulation in the municipality or City.
In the case of Philippine National Bank vs. International Corporate Bank, 129 SCRA 508, 509, the Court likewise ruled that:
The contention of private respondent in its opposition that the extrajudicial foreclosure is null and void for failure of the petitioner to inform them of the said foreclosure and the pertinent dates of redemption so that it can exercise its prerogatives under the law is untenable. There being obviously no contractual stipulation therefor, personal notice is not necessary and what governs is the general rule in Section 3 of Act 3135, as amended, which directs the posting of notices of the sale in at least three (3) public places of the municipality where the property is situated, and the publication thereof in a newspaper of general circulation in said municipality.
There is no merit in petitioners' contention that the sale of the foreclosed property to Lucila Edna Tan, an employee of the bank, was invalid. In the first place, the Tans did not buy the property from the mortgagee, the Daily Savings and Loan Association, but from the Mercantile Financing Corporation. Secondly, it is not prohibited for the bank to sell to its employee property acquired by the bank at a mortgage foreclosure sale. The claim of the petitioners that there was collusion between DLSA and the Tans was not proven. The Court of Appeals held:
As to the argument of the appellant that there was conspiracy and collusion among the plaintiffs and the third party defendants, the trial court held that there was no sufficient proof to sustain the defense and We see no cogent reason for Us to disturb these findings of fact on appeal. (p. 36, Rollo.)
WHEREFORE, the petition for review of the decision of the Court of Appeals in CA G.R. SP No. 12432 is DENIED for lack of merit.
SO ORDERED.
Cruz, Bellosillo and Quiason, JJ., concur.
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}97749_03_93_footnotes>mainG.R. No. 97749 March 19, 1993
SALVADOR BUAZON, ET AL. vs. COURT OF APPEALS, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 97749 March 19, 1993
SALVADOR BUAZON, NICK BALDAZO AND NOLASCO BALDAZO, petitioners,
vs.
COURT OF APPEALS, BAGONG BARRIO HOUSING SERVICE COOPERATIVE, INC., represented by NICANOR R. SANTOS, respondents.
Orlando A. Galope for petitioners.
Teofilo L. Santos for private respondent.
NOCON, J.:
Assailed in this petition is the Decision of the Court of Appeals promulgated on March 6, 1991, reversing the Regional Trial Court's decision of November 11, 1988 and thereby reinstating the decision of the Metropolitan Trial Court.
The facts of the case as synthesized by the appellate court are as follows:
Nicanor R. Santos, the Secretary and the duly authorized representative of the plaintiff Bagong Barrio & Housing Coop., Inc. (cooperative for brevity) in this case, was claiming ownership over one storey building consisting of three (3) door residential structure located at No. 177 corner Wagwag Street and Malolos Avenue, Caloocan City. Said building was constructed way back in 1973 through the initiative of defendant-private respondent Salvador Buazon, who was then acting as the President of the plaintiff-cooperative as the building will be used as
sub-office of the cooperative. The expenses for the construction were then defrayed and advanced by a certain Maximo Cabal who was then a director of the Cooperative by virtue of an agreement between the latter and Salvador Buazon (Buazon acting as President of the Cooperative). The expenses aforesaid advanced by Cabal was later on returned and paid by plaintiff-cooperative in monthly installments from the rentals of the said properties.
On March 4, 1981, the herein defendant-private respondent Salvador Buazon instituted two (2) ejectment cases against the lessees of the questioned residential structure, namely, Mercedita Mabalay and Cresencia Villanueva, docketed as Civil Cases Nos. 14435 and 14436, before the Metropolitan Trial Court of Caloocan City, Branch 1.
In the above-stated ejectment case, the right of Salvador Buazon over the property was put in issue, while the defendants therein, Mabalay and Villanueva alleged that the residential structure is owned by the herein plaintiff-petitioner, Bagong Barrio Housing Service Cooperative, Inc., and that it was sold to them by the Cooperative through its President Nicanor Santos in 1981.
During the pendency of the actions aforesaid, herein plaintiff cooperative became an active party, as a witness and testified in favor of herein defendants Mabalay and Villanueva.
On January 12, 1983, a joint decision was rendered by the Metropolitan Trial Court, Branch I (Civil Case Nos. 14435 and 14436) in favor of herein defendant-private respondent Salvador Buazon, declaring him to be the owner and lessor of the premises.
Not satisfied with the decision defendants Mabalay and Villanueva appealed the same to the Regional Trial Court of Caloocan City, Branch 129, but the said decision was however, affirmed by the RTC with double costs against defendants-appellants. (Annex "2").
When the foregoing judgment became final and executory but before the same was executed, two (2) civil cases, namely, Civil Case Nos. 11742 and 11743, were instituted by defendants Mabalay and Villanueva, referred to as complaint for ownership and damages with prayer for writ of preliminary injunction in the Regional Trial Court of Caloocan City, Branch 127 against Salvador Buazon. These complaints were consolidated for joint trial and later, RTC, Branch 127 issued a restraining order relative to the implementation of the writ of execution issued by the Metropolitan Trial Court.
After the proper hearing, respondent court issued an order, denying the application for the issuance of a writ of preliminary injunction. Mabalay and Villanueva, then filed a petition for certiorari to the then Intermediate Appellate Court docketed as AC-G.R. SP No. 05790-05791, but the appellate court dismissed the petition and upheld the earlier decision (Annex "3"). Said decision was elevated to the Honorable Supreme Court on petition for review on certiorari under G.R. No. 72988-72989 but the petition was resolved against herein petitioners (Annex "4").
Defendants Mabalay and Villanueva upon learning the adverse action of the Honorable Supreme Court, vacated the premises. Thereafter, the two (2) door apartment units were rented out and leased anew by herein private respondent Salvador Buazon to new lessees, namely Nick and Nolasco Baldazo, who took possession of the same as lessees.
On April 14, 1987, Nicanor Santos, as authorized representative of the herein plaintiff-petitioner cooperative, filed a complaint for unlawful detainer (Civil Case No. 18068) in the Metropolitan Trial Court of Caloocan City, Branch 50, against defendants-private respondent Salvador Buazon including the new tenants, Nick and Nolasco Baldazo, alleging among others, that the cooperative is the owner of the residential structure occupied by the defendant lessees and that the latter are occupying the questioned building without any authority from the cooperative. It alleged further that the cooperative, through Nicanor Santos demanded from the defendants to vacate the premises because the cooperative needed the same for its own use, but notwithstanding said demand, defendants refused to comply with said demand.
Only defendant Salvador Buazon filed his answer, denying the allegations in the complaint, and sets up the affirmative defense alleged that the complaint was already barred by previous judgment and challenged legal existence of the plaintiff cooperative.
On April 11, 1988, the Metropolitan Trial Court, Branch 50 rendered judgment pursuant to the Rule on Summary procedure in favor of the Bagong Barrio Housing Service Coop. Inc. ordering the defendants and all persons claiming rights under them to vacate the subject premises and surrender possession thereof to the plaintiff.
Private respondent Salvador Buazon elevated on appeal the aforesaid judgment to the Regional Trial Court of Caloocan City, Branch 123, invoking as his defense the doctrine of res judicata, specifically, the judgment in Civil Case Nos. 14435 and 14436.
On November 11, 1988, the Regional Trial Court of Caloocan City, Branch 123, rendered a decision sustaining the defense of res judicata thereby setting aside the decision of the MTC (Branch 50), dismissing the same, with triple costs against herein plaintiff cooperative.
A motion for reconsideration was filed by the plaintiff cooperative, but the same was likewise denied.
1
The cooperative elevated the RTC decision to the Court of Appeals where the same was reversed. The dispositive portion of the decision reads:
IN VIEW OF THE FOREGOING CONSIDERATIONS, the instant petition is hereby GRANTED, and the assailed decision of the court a quo dated November 11, 1988 is hereby REVERSED and SET ASIDE, and the decision of the MTC, Branch 50, dated April 11, 1988 is hereby REINSTATED. Costs against private-respondents.
SO ORDERED.
2
Hence, this petition.
Petitioner's main contentions are the following:
1. The Metropolitan Trial Court did not have jurisdiction over Civil Case No. 18068 for failure of private respondent to comply with the requisites of Section 5 (c) of Batas Pambansa Blg. 25.
2. The Metropolitan Trial Court erred in applying the Rule on Summary procedure in resolving Civil Case No. 18068 despite the issue on question of ownership raised in the pleadings of the parties therein over the subject matter of the case.
3. The respondent Court of Appeals erred and/or acted with grave abuse of discretion when it disregarded the application of the principle of res judicata or prior judgment against the private respondent Bagong Barrio Housing Service Cooperative, Inc.
The petition is devoid of merit.
Petitioners contend want of jurisdiction of the Metropolitan Trial Court to decide Civil Case No. 18068 due to the failure of respondent cooperative to allege the procedural requirements found in Section 5 (c) of Batas Pambansa Blg. 25 (otherwise, known as the Rent Control law), where respondent's cause of action is predicated on the need of the premises by the respondent.
We do not agree. The jurisdiction of the court is determined by law and the law has vested inferior courts with the exclusive jurisdiction to try unlawful detainer cases,
3 such as the case at bar.
At best, non-compliance by respondent cooperative with Section 5 (c) of B.P. Blg. 25 is a ground for dismissal for lack of cause of action or as an affirmative defense that must be alleged by the petitioners in their answer.
At any rate, the records reveal that petitioners never raised this ground in a motion to dismiss, nor as an affirmative defense in their answer.
4 To raise them now constitutes a vain attempt of petitioner to invoke a defense that has clearly been waived.
With respect to the second contention of petitioner on the alleged error of the Metropolitan Trial Court in applying the Rule on Summary Procedure in resolving Civil Case No. 18068 for unlawful detainer in spite of the fact that the question of ownership was raised, We need but cite Section 1 (A) (1) of the Rule on Summary Procedure mandating its application to cases of forcible entry and unlawful detainer and Section 33 (2) of B.P. 129 which provides that the Metropolitan Trial Courts, Municipal Trial Courts and Municipal Circuit Trial Courts shall exercise:
(2) Exclusive original jurisdiction over cases of forcible entry and unlawful detainer; Provided, That when in such cases, the defendant raises the question of ownership in his pleadings and the question of possession cannot be resolved without deciding the issue of ownership, the issue of ownership shall be resolved only to determine the issue of possession.
Inferior courts are not divested of jurisdiction over ejectment cases just because the defendant sets up a claim of ownership over the litigated property.
5 If the complaint establishes jurisdictional facts necessary to sustain the action and the remedy sought is merely to obtain possession, the lower court has jurisdiction, regardless of the claim of ownership set forth by either party. 6 It can resolve the issue of ownership if only to determine the issue of possession.
Clearly, the Metropolitan Trial Court had original and exclusive jurisdiction over the ejectment case and was correct in applying the Rule on Summary Procedure.
Besides, assuming the inferior court erred in applying the Rules on Summary Procedure to the instant case, petitioners did not object when the inferior court required the parties to submit their respective position papers and supporting affidavits, which is only called for in summary procedure. Petitioners' failure to object operates as a waiver of the procedure taken by the inferior court.
Nor can the principle of res judicata apply against private respondent.
Records show that respondent cooperative was never impleaded as a party, whether as a defendant, or a third party defendant, or a defendant on a counterclaim or on cross claim, or has intervened in Civil Case Nos. 14435 and 14436. Neither were they successors-in-interest or a real party in interest in said actions since the cooperative became the owner of the property in dispute from the time the full payment of the cost of construction has been completed.
Consequently, the cooperative cannot be bound by a decision wherein it was not a party even assuming that it was well aware of the pendency of said action. Very likely the result of the case would have been different had private respondent (plaintiff-petitioners in Civil Case No. 18068) been given an opportunity to protect its interest.
7
As correctly said by the appellate court:
Furthermore, there is no way we can consider plaintiff-petitioners a party in interest in the above-mentioned civil actions considering that the cooperative did not stand to be prejudiced or benefited by whatever outcome of the case and even the rights and obligations of the parties arising therefrom are absolutely distinct from that of the plaintiff cooperative.
Significantly, the decision in Civil Case Nos. CB-14435-14436, declaring the herein private respondent Salvador Buazon the owner and lawful possessor of the disputed property is a judgment good only as far as defendants Mabuhay and Villanueva are concerned, it appearing that only the rights and obligations of these parties were involved. A fortiorari, (sic) the decision of the court in the aforesaid civil actions is a judgment good only as against defendants therein and should not in any way be construed to affect persons not privy to said actions.
Even if We assume that in the earlier decisions, private respondent Salvador Buazon was declared to be the owner of the building and entitled to possess the same as against defendant therein, said decision is not conclusive as to the title or issue of ownership. Section 7, Rule 70 of the Rules of Court expressly provides:
The judgment rendered in an action for forcible entry or detainer shall be effective with respect to the possession only and in no wise bind the title or affect the ownership of the land or building.
It is a fundamental rule that the doctrine of res judicata and conclusiveness of judgment apply in ejectment suits, but subject to the qualification that the judgment therein is conclusive only with respect to the issue of material possession of the premises but not with respect to ownership and other facts.
8
Obviously, the decision adjudging Salvador Buazon as the owner and lawful possessor of the premises cannot be used as a defense against the claim of herein plaintiff-petitioners. Firstly, said judgment cannot bind herein plaintiff, because the declaration of the court is conclusive only as to the issue of material possession and not ownership. Secondly, petitioners is not in any way bound by the earlier decisions, not being a party in said actions.
9
WHEREFORE, there being no reversible error in the appealed decision, the same is hereby AFFIRMED. With costs.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Campos, Jr., JJ., concur.
#
Footnotes
1 Rollo, pp. 6-8.
2 Rollo, p. 12.
3 Section 33 (2), Batas Pambansa Blg. 129.
4 CA Rollo, p. 16.
5 Drilon vs. Gaurana, No. L-35482, 149 SCRA 342 (1987).
6 Ganadin vs. Ramos, No. L-23547, 99 SCRA 613 (1980).
7 VEA vs. Acoba, No. L-5973, 94 Phil. 597.
8 Peñalosa vs. Tuazon, 22 Phil. 303.
9 Rollo, p. 10.
# $ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}99041_03_93_footnotes>mainG.R. No. 99041 March 19, 1993
PEOPLE OF THE PHIL. vs. VICTOR TAPIC, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 99041 March 19, 1993
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
VICTOR TAPIC y NATIVIDAD, MODESTO LOVITOS y LUNA, EMILIO ARBAN y DOLIENTES, DOMINGO IBALE, JIMBOY CAHILOG, LODILON RESURRECCION, ELSO ALVARADO, BONIFACIO IBALE, JOHN DOE alias RANDY or VIC-VIC, VICTOR ALCANO (True Name), PETER DOE and WILLIAM DOE, accused, VICTOR TAPIC, MODESTO LOVITOS, EMILIO ARBAN, and VICTOR ALCANO, accused-appellants.
The Solicitor General for plaintiff-appellee.
Roberto Q. Canete for Victor Tapic.
Iluminado R. Macahig for Alcano, Arban & Lovitos.
CAMPOS, JR., J.:
The Regional Trial Court, Eleventh Judicial Region, Branch 8, Davao City rendered judgment convicting the accused-appellants as follows:
WHEREFORE, finding their guilt of the crime charged proven beyond reasonable doubt as principals, the accused Victor Tapic, Modesto Lovitos, Emilio Arban and Randy Alcano are each hereby sentenced to RECLUSION PERPETUA, with all the accessory penalties inherent thereto.
Accused Lodilon Resurreccion, Elso Alvarado and Bonifacio Ibale having been found guilty beyond reasonable doubt as accomplices for the crime charged, they are each hereby sentenced to an imprisonment for an indeterminate term of 8 YEARS and 1 DAY of PRISION MAYOR as Minimum to 14 YEARS, 8 MONTHS and 1 DAY of RECLUSION TEMPORAL as Maximum.
As to the civil aspect, it is clear that the amount of P177,000.00 was withdrawn from the savings account of Joseph Go at the Republic Planters Bank. It is also without doubt that his detention caused him dufferings (sic) and mental anguish which cannot be approximated in terms of money, but for which this Court awards P200,000.00 as moral damages and in engaging the services of counsels Abarquez and Lledo to assist him in the prosecution of this case, we grant him reasonable attorney's fees in the amount of P50,000.00 or a total of P427,000.00. The principals are jointly and severally liable to pay to the complainant Joseph Go 2/3 of the aforementioned total amount and the accomplices are also jointly and severally liable to 1/3 of said amount.
Costs are to be paid proportionately by all the accused.
SO ORDERED.
1
On September 6, 1990, the same day the decision was promulgated, accused-appellant Victor Tapic filed his notice of appeal elevating his case to this Court. Victor Albano, Emilio Arban and Modesto Lovitos filed their notice of appeal on September 14, 1990, likewise elevating their case to this Court. Accused Lodilon Resurreccion, Elso Alvarado and Bonifacio Ibale, on the other hand, who filed their notice of appeal on same date, elevated their case to the Court of Appeals instead of the Supreme Court pursuant to Section 17(4) of R.A. 296 (Judiciary Act of 1948) and Section 3(c) of Rule 122, Rules of Court. As of date, however, there is no record of a pending appeal nor a decided case with the Court of Appeals taken by said accused. Thus, We presume that these appellants abandoned their right to appeal and their criminal liability will not be reviewed in the instant case, as it has already become final.
The accused-appellants assail the trial court's decision contending that: the evidence adduced by the prosecution failed to prove their guilt beyond reasonable doubt; there is no evidence that Victor Tapic was the mastermind in the kidnapping; and there is no evidence of conspiracy among the accused-appellants.
The facts of the case may be summarized as follows:
Joseph Go, a manager of William Integrated Construction, and his foreman, Oscar Pelayo, testified that in the morning of February 29, 1988, Victor Tapic, Modesto Lovitos and Randy Alcano came to Joseph Go's residence. Tapic was borrowing P1,000.00 from him. Suddenly, two men carrying hand guns, one with a .45 caliber pistol, the other with a .38 caliber pistol, arrived and took everyone except Victor Tapic. In the meantime, Jimboy Cahilog, a bodyguard of Tapic, also arrived and he was able to get blank checks and a passbook from Joseph Go's office located at the ground floor of his residence. After which, he made a signal to Tapic who in turn acknowledged the signal with a nod. All those inside the house except Tapic were made to board the Pajero which Tapic used in going there. Pelayo was brought to a ravine where an attempt was made to kill him but he was able to escape by falling into a ravine. In falling into the ravine, he sustained injuries and was treated at the Digos Hospital where he was confined for six days. In the meantime, he got in contact with Raymond Go, the twin brother of Joseph, and reported the kidnapping.
Joseph Go, on the other hand, was brought to a house at a ricefield where he was detained for several days. While under detention, his abductors made him sign two checks and a blank withdrawal slip of Republic Planter's Bank. He was likewise made to sign two blank sheets of bond papers.
On March 3, 1988, he overheard the conversation of those guarding outside the room where he was detained about a P2.5 million peso ransom money. He also heard that he would be killed the next day at 8:00 o'clock in the evening. This made him very nervous that he thought of keeping some means of identification inside his socks, his shoes and brief with the hope that if somebody would discover his dead body later on, they will have some means of identifying him. He wrote the name of Tapic in tinfoils of cigarettes. He also wrote the words: "Tapic done it" (sic) on his pants, cuffs and shirt. The plan to kill him, however, did not materialize. He was finally rescued through the help of Capt. Serrano.
Capt. Serrano's assistance was sought by Raymond Go. Capt. Serrano first talked with Gerry Cruz, the driver of Joseph. Then he picked up Emilio Arban, the driver of Tapic, who according to Capt. Serrano admitted having withdrawn money from Joseph Go's account at the Republic Planter's Bank. Next to be picked up was Victor Tapic, then Modesto Lovitos who told them where Joseph Go was being detained.
The bookkeeper of the Republic Planter's Bank where Joseph Go had his savings account testified that there was indeed a withdrawal from Joseph Go's savings account on March 2, 1988, that time when he was actually detained, in the amount of P177,000.00. He presented the withdrawal slip, machine validated in that same amount and duly signed by Joseph Go and the supposed authorized representative Rogelio Salazar, whose real identity he later learned to be Emilio Arban, the driver of Victor Tapic. The witness pointed to him in open court as the person who withdrew for Joseph Go's account.
The trial court convicted the accused-appellants on the strength of the testimonies of the victim Joseph Go; his foreman, Oscar Pelayo; Capt. Serrano and the bank bookkeeper, Rolando Padasay.
Victor Tapic was positively identified by Joseph Go and Oscar Pelayo. For his defense, Tapic contends that the accusation that he masterminded the kidnapping is nothing more than a clear concoction and contrivance brought about by panic and prejudice on the part of Joseph Go. He claims that even without any logical basis, Joseph Go kept on telling himself that it was Victor Tapic who ordered that he be kidnapped. The testimony of Joseph Go, according to him, was characterized by unfounded suspicion which evidence is not worthy of credence and should not have been considered sufficient to overcome the presumption of innocence.
We are not persuaded. There are several indications which the trial court correctly appreciated, pointing to Victor Tapic as the mastermind of the kidnapping. The men involved in the crime were his close associates who look up to him as their superior. The vehicle used is the one he uses in the ordinary course of his business although it may actually belong to the government (the DILG). When taken together with the fact that he was the only one left when the two gunmen took everybody else along with them in his car, plus the fact that he had not reported anything to the proper authorities regarding the incident or at least the fact that kidnappers had used the vehicle he was using in order to eliminate any possibility of he being linked thereto, it makes Us wonder how he can convince Us that he has nothing to do with the kidnapping. Furthermore, the checks which Joseph Go signed while he was in detention were actually negotiated by Victor Tapic. In the light of the above circumstances, it would be too much strain to the imagination to think that it was merely an unfortunate incident that Victor Tapic was at the wrong place at the wrong time.
Victor Tapic further claims that he has no motive at all to mastermind the kidnapping of Joseph Go for in fact it was Joseph Go who had overdue accounts to settle with him. It would be absurd and contrary to common sense that he would resort to kidnapping in order to collect his claims.
We find this defense to be without legal foundation. Motive for the commission of the crime does not constitute an element thereof, and lack of motive is not a valid defense. Absence of motive does not preclude conviction when the crime and the participation of the accused therein are definitely established,
2 such that when the culprit is positively identified and there is no room to doubt his identity, motive becomes immaterial. 3
The evidence in the records is sufficient to sustain the conviction not only of Victor Tapic but of all the other accused-appellants as principals and
co-conspirators in the crime of kidnapping with ransom. The concert of action is evident for the way that the crime was carried out clearly indicates a predetermined scheme as they knew where and what time they shall meet, what vehicle they would use, who would be participating, where they would bring Joseph Go and what they would do with Oscar Pelayo. There is a perfect concert of action and a manifest unity of purpose among all the co-conspirators.
Even the defense of Victor Alcano, who is Tapic's driver, that he was himself a victim of kidnapping is hard to believe because if he were a victim and not actually one of those guarding the real victim, what were to set him apart from Oscar Pelayo, another victim such that the abductors would treat them differently. We note that Oscar Pelayo was ordered to be eliminated for being a key witness to the crime, even if he was not an intended victim. It is even harder to accept why they would choose to detain Victor Alcano over Oscar Pelayo. For sure, they cannot extort any ransom money from Joseph Go for the release of Victor Alcano. It would be more logical to detain Oscar Pelayo than Victor Alcano for purposes of extorting ransom money from Joseph Go. Thus, more than anything else, Victor Alcano's presence at the place where they detained Joseph Go is more of an evidence of the conspiracy among the accused-appellants. It was actually his role in the perpetration of the felony to watch the victims.
The evidence showing the fact that Emilio Arban actually withdrew money from Joseph Go's account with the Republic Planter's Bank using the passbook taken from Joseph Go's office when he was abducted and the withdrawal slip he was made to sign while at detention are evidence par excellence that confirm the fact that there was conspiracy among all the accused-appellants in perpetrating the crime of kidnapping for ransom.
There exists no cogent reason, as We find none, to overturn the trial court's findings that conspiracy exists in the commission of the kidnapping. Time and again, We have ruled that conspiracy need not be proved by direct evidence but may be inferred from the acts of the accused-appellants during and after the commission of the crime which point to a joint purpose, concert of action and community of interest.
4
Upon review of the facts and the findings of the trial court, We do not see any reason to depart from the doctrine which We have faithfully followed:
It is well settled that appellate courts will generally not disturb the conclusions and findings of fact of the trial court considering that it is in a better position to decide the question, having heard the witnesses themselves and observed their deportment and manner of testifying during the trial, unless the court has plainly overlooked certain facts of substance and value that, if considered, might affect the result of the case.
5
There is nothing which shows that the trial court committed any error.
WHEREFORE, the appealed decision is hereby AFFIRMED in toto with costs against the accused-appellants.
SO ORDERED.
Narvasa, C.J., Padilla, Regalado and Nocon, JJ., concur.
#
Footnotes
1 Decision, pp. 44-45; Records, pp. 415-416.
2 People vs. Ballinas, 202 SCRA 516 (1991).
3 People vs. Gabatin, 203 SCRA 225 (1991).
4 People vs. Bausing, 199 SCRA 355 (1991).
5 People vs. Pacalso Mat-an, G.R. No. 91115, December 29, 1992, citing People vs. Natan, 193 SCRA 355 (1991).
#
$ + GRSI ® Copyrightregno N94-027
{bmr footnote.bmp}102132_03_93_footnotes>mainG.R. No. 102132 March 19, 1993
DAVAO INTEGRATED PORT STEVEDORING SERVICES vs. RUBEN V. ABARQUEZ, ET AL.
Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 102132 March 19, 1993
DAVAO INTEGRATED PORT STEVEDORING SERVICES, petitioner,
vs.
RUBEN V. ABARQUEZ, in his capacity as an accredited Voluntary Arbitrator and THE ASSOCIATION OF TRADE UNIONS (ATU-TUCP), respondents.
Libron, Gaspar & Associates for petitioner.
Bansalan B. Metilla for Association of Trade Unions (ATU-TUCP).
ROMERO, J.:
In this petition for certiorari, petitioner Davao Integrated Port Services Corporation seeks to reverse the Award
1 issued on September 10, 1991 by respondent Ruben V. Abarquez, in his capacity as Voluntary Arbitrator of the National Conciliation and Mediation Board, Regional Arbitration Branch XI in Davao City in Case No. AC-211-BX1-10-003-91 which directed petitioner to grant and extend the privilege of commutation of the unenjoyed portion of the sick leave with pay benefits to its intermittent field workers who are members of the regular labor pool and the present regular extra pool in accordance with the Collective Bargaining Agreement (CBA) executed between petitioner and private respondent Association of Trade Unions (ATU-TUCP), from the time it was discontinued and henceforth.
The facts are as follows:
Petitioner Davao Integrated Port Stevedoring Services (petitioner-company) and private respondent ATU-TUCP (Union), the exclusive collective bargaining agent of the rank and file workers of petitioner-company, entered into a collective bargaining agreement (CBA) on October 16, 1985 which, under Sections 1 and 3, Article VIII thereof, provide for sick leave with pay benefits each year to its employees who have rendered at least one (1) year of service with the company, thus:
ARTICLE VIII
Sec. 1. Sick Leaves The Company agrees to grant 15 days sick leave with pay each year to every regular non-intermittent worker who already rendered at least one year of service with the company. However, such sick leave can only be enjoyed upon certification by a company designated physician, and if the same is not enjoyed within one year period of the current year, any unenjoyed portion thereof, shall be converted to cash and shall be paid at the end of the said one year period. And provided however, that only those regular workers of the company whose work are not intermittent, are entitled to the herein sick leave privilege.
xxx xxx xxx
Sec. 3. All intermittent field workers of the company who are members of the Regular Labor Pool shall be entitled to vacation and sick leaves per year of service with pay under the following schedule based on the number of hours rendered including overtime, to wit:
Hours of Service Per Vacation Sick Leave
Calendar Year Leave
Less than 750 NII NII
751 825 6 days 6 days
826 900 7 7
901 925 8 8
926 1,050 9 9
1,051 1,125 10 10
1,126 1,200 11 11
1,201 1,275 12 12
1,276 1,350 13 13
1,351 1,425 14 14
1,426 1,500 15 15
The conditions for the availment of the herein vacation and sick leaves shall be in accordance with the above provided Sections 1 and 2 hereof, respectively.
Upon its renewal on April 15, 1989, the provisions for sick leave with pay benefits were reproduced under Sections 1 and 3, Article VIII of the new CBA, but the coverage of the said benefits was expanded to include the "present Regular Extra Labor Pool as of the signing of this Agreement." Section 3, Article VIII, as revised, provides, thus:
Sec. 3. All intermittent field workers of the company who are members of the Regular Labor Pool and present Regular Extra Labor Pool as of the signing of his agreement shall be entitled to vacation and sick leaves per year of service with pay under the following schedule based on the number of hours rendered including overtime, to wit:
Hours of Service Per Vacation Sick Leave
Calendar Year Leave
Less than 750 NII NII
751 825 6 days 6 days
826 900 7 7
901 925 8 8
926 1,050 9 9
1,051 1,125 10 10
1,126 1,200 11 11
1,201 1,275 12 12
1,276 1,350 13 13
1,351 1,425 14 14
1,426 1,500 15 15
The conditions for the availment of the herein vacation and sick leaves shall be in accordance with the above provided Sections 1 and 2 hereof, respectively.
During the effectivity of the CBA of October 16, 1985 until three (3) months after its renewal on April 15, 1989, or until July 1989 (a total of three (3) years and nine (9) months), all the field workers of petitioner who are members of the regular labor pool and the present regular extra labor pool who had rendered at least 750 hours up to 1,500 hours were extended sick leave with pay benefits. Any unenjoyed portion thereof at the end of the current year was converted to cash and paid at the end of the said one-year period pursuant to Sections 1 and 3, Article VIII of the CBA. The number of days of their sick leave per year depends on the number of hours of service per calendar year in accordance with the schedule provided in Section 3, Article VIII of the CBA.
The commutation of the unenjoyed portion of the sick leave with pay benefits of the intermittent workers or its conversion to cash was, however, discontinued or withdrawn when petitioner-company under a new assistant manager, Mr. Benjamin Marzo (who replaced Mr. Cecilio Beltran, Jr. upon the latter's resignation in June 1989), stopped the payment of its cash equivalent on the ground that they are not entitled to the said benefits under Sections 1 and 3 of the 1989 CBA.
The Union objected to the said discontinuance of commutation or conversion to cash of the unenjoyed sick leave with pay benefits of petitioner's intermittent workers contending that it is a deviation from the true intent of the parties that negotiated the CBA; that it would violate the principle in labor laws that benefits already extended shall not be taken away and that it would result in discrimination between the non-intermittent and the intermittent workers of the petitioner-company.
Upon failure of the parties to amicably settle the issue on the interpretation of Sections 1 and 3, Article VIII of the 1989 CBA, the Union brought the matter for voluntary arbitration before the National Conciliation and Mediation Board, Regional Arbitration Branch XI at Davao City by way of complaint for enforcement of the CBA. The parties mutually designated public respondent Ruben Abarquez, Jr. to act as voluntary arbitrator.
After the parties had filed their respective position papers,
2 public respondent Ruben Abarquez, Jr. issued on September 10, 1991 an Award in favor of the Union ruling that the regular intermittent workers are entitled to commutation of their unenjoyed sick leave with pay benefits under Sections 1 and 3 of the 1989 CBA, the dispositive portion of which reads:
WHEREFORE, premises considered, the management of the respondent Davao Integrated Port Stevedoring Services Corporation is hereby directed to grant and extend the sick leave privilege of the commutation of the unenjoyed portion of the sick leave of all the intermittent field workers who are members of the regular labor pool and the present extra pool in accordance with the CBA from the time it was discontinued and henceforth.
SO ORDERED.
Petitioner-company disagreed with the aforementioned ruling of public respondent, hence, the instant petition.
Petitioner-company argued that it is clear from the language and intent of the last sentence of Section 1, Article VIII of the 1989 CBA that only the regular workers whose work are not intermittent are entitled to the benefit of conversion to cash of the unenjoyed portion of sick leave, thus: ". . . And provided, however, that only those regular workers of the Company whose work are not intermittent are entitled to the herein sick leave privilege."
Petitioner-company further argued that while the intermittent workers were paid the cash equivalent of their unenjoyed sick leave with pay benefits during the previous management of Mr. Beltran who misinterpreted Sections 1 and 3 of Article VIII of the 1985 CBA, it was well within petitioner-company's rights to rectify the error it had committed and stop the payment of the said sick leave with pay benefits. An error in payment, according to petitioner-company, can never ripen into a practice.
We find the arguments unmeritorious.
A collective bargaining agreement (CBA), as used in Article 252 of the Labor Code, refers to a contract executed upon request of either the employer or the exclusive bargaining representative incorporating the agreement reached after negotiations with respect to wages, hours of work and all other terms and conditions of employment, including proposals for adjusting any grievances or questions arising under such agreement.
While the terms and conditions of a CBA constitute the law between the parties,
3 it is not, however, an ordinary contract to which is applied the principles of law governing ordinary contracts. 4 A CBA, as a labor contract within the contemplation of Article 1700 of the Civil Code of the Philippines which governs the relations between labor and capital, is not merely contractual in nature but impressed with public interest, thus, it must yield to the common good. As such, it must be construed liberally rather than narrowly and technically, and the courts must place a practical and realistic construction upon it, giving due consideration to the context in which it is negotiated and purpose which it is intended to serve. 5
It is thus erroneous for petitioner to isolate Section 1, Article VIII of the 1989 CBA from the other related section on sick leave with pay benefits, specifically Section 3 thereof, in its attempt to justify the discontinuance or withdrawal of the privilege of commutation or conversion to cash of the unenjoyed portion of the sick leave benefit to regular intermittent workers. The manner they were deprived of the privilege previously recognized and extended to them by petitioner-company during the lifetime of the CBA of October 16, 1985 until three (3) months from its renewal on April 15, 1989, or a period of three (3) years and nine (9) months, is not only tainted with arbitrariness but likewise discriminatory in nature. Petitioner-company is of the mistaken notion that since the privilege of commutation or conversion to cash of the unenjoyed portion of the sick leave with pay benefits is found in Section 1, Article VIII, only the regular non-intermittent workers and no other can avail of the said privilege because of the proviso found in the last sentence thereof.
It must be noted that the 1989 CBA has two (2) sections on sick leave with pay benefits which apply to two (2) distinct classes of workers in petitioner's company, namely: (1) the regular non-intermittent workers or those workers who render a daily eight-hour service to the company and are governed by Section 1, Article VIII of the 1989 CBA; and (2) intermittent field workers who are members of the regular labor pool and the present regular extra labor pool as of the signing of the agreement on April 15, 1989 or those workers who have irregular working days and are governed by Section 3, Article VIII of the 1989 CBA.
It is not disputed that both classes of workers are entitled to sick leave with pay benefits provided they comply with the conditions set forth under Section 1 in relation to the last paragraph of Section 3, to wit: (1) the employee-applicant must be regular or must have rendered at least one year of service with the company; and (2) the application must be accompanied by a certification from a company-designated physician.
Sick leave benefits, like other economic benefits stipulated in the CBA such as maternity leave and vacation leave benefits, among others, are by their nature, intended to be replacements for regular income which otherwise would not be earned because an employee is not working during the period of said leaves.
6 They are non-contributory in nature, in the sense that the employees contribute nothing to the operation of the benefits. 7 By their nature, upon agreement of the parties, they are intended to alleviate the economic condition of the workers.
After a careful examination of Section 1 in relation to Section 3, Article VIII of the 1989 CBA in light of the facts and circumstances attendant in the instant case, we find and so hold that the last sentence of Section 1, Article VIII of the 1989 CBA, invoked by petitioner-company does not bar the regular intermittent workers from the privilege of commutation or conversion to cash of the unenjoyed portion of their sick leave with pay benefits, if qualified. For the phrase "herein sick leave privilege," as used in the last sentence of Section 1, refers to the privilege of having a fixed 15-day sick leave with pay which, as mandated by Section 1, only the non-intermittent workers are entitled to. This fixed 15-day sick leave with pay benefit should be distinguished from the variable number of days of sick leave, not to exceed 15 days, extended to intermittent workers under Section 3 depending on the number of hours of service rendered to the company, including overtime pursuant to the schedule provided therein. It is only fair and reasonable for petitioner-company not to stipulate a fixed 15-day sick leave with pay for its regular intermittent workers since, as the term "intermittent" implies, there is irregularity in their work-days. Reasonable and practical interpretation must be placed on contractual provisions. Interpretatio fienda est ut res magis valeat quam pereat. Such interpretation is to be adopted, that the thing may continue to have efficacy rather than fail.
8
We find the same to be a reasonable and practical distinction readily discernible in Section 1, in relation to Section 3, Article VIII of the 1989 CBA between the two classes of workers in the company insofar as sick leave with pay benefits are concerned. Any other distinction would cause discrimination on the part of intermittent workers contrary to the intention of the parties that mutually agreed in incorporating the questioned provisions in the 1989 CBA.
Public respondent correctly observed that the parties to the CBA clearly intended the same sick leave privilege to be accorded the intermittent workers in the same way that they are both given the same treatment with respect to vacation leaves non-commutable and non-cumulative. If they are treated equally with respect to vacation leave privileges, with more reason should they be on par with each other with respect to sick leave privileges.
9 Besides, if the intention were otherwise, during its renegotiation, why did not the parties expressly stipulate in the 1989 CBA that regular intermittent workers are not entitled to commutation of the unenjoyed portion of their sick leave with pay benefits?
Whatever doubt there may have been early on was clearly obliterated when petitioner-company recognized the said privilege and paid its intermittent workers the cash equivalent of the unenjoyed portion of their sick leave with pay benefits during the lifetime of the CBA of October 16, 1985 until three (3) months from its renewal on April 15, 1989. Well-settled is it that the said privilege of commutation or conversion to cash, being an existing benefit, the petitioner-company may not unilaterally withdraw, or diminish such benefits.
10 It is a fact that petitioner-company had, on several instances in the past, granted and paid the cash equivalent of the unenjoyed portion of the sick leave benefits of some intermittent workers. 11 Under the circumstances, these may be deemed to have ripened into company practice or policy which cannot be peremptorily withdrawn. 12
Moreover, petitioner-company's objection to the authority of the Voluntary Arbitrator to direct the commutation of the unenjoyed portion of the sick leave with pay benefits of intermittent workers in his decision is misplaced. Article 261 of the Labor Code is clear. The questioned directive of the herein public respondent is the necessary consequence of the exercise of his arbitral power as Voluntary Arbitrator under Article 261 of the Labor Code "to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement." We, therefore, find that no grave abuse of discretion was committed by public respondent in issuing the award (decision). Moreover, his interpretation of Sections 1 and 3, Article VIII of the 1989 CBA cannot be faulted with and is absolutely correct.
WHEREFORE, in view of the foregoing, the petition is DISMISSED. The award (decision) of public respondent dated September 10, 1991 is hereby AFFIRMED. No costs.
SO ORDERED.
Feliciano, Bidin, Davide, Jr. and Melo, JJ., concur.
Gutierrez, Jr., J., is on leave.
#
Footnotes
1 Annex "E," Petition, pp. 39-43, Rollo. Article 262-A of the Labor Code used the terms "decision, order or award" in describing the decision of the voluntary arbitrator. There is no significance attached to the use of term "award" by public respondent contrary to petitioner's apprehension.
2 pp. 24-38, Rollo.
3 Meycauayan College v. Drilon, 185 SCRA 50 (1990); Kapisanan ng mga Manggagawa sa La Suerte-FOITAF v. Noriel, G.R. No. L-45475, June 20, 1977, 77 SCRA 414; Mactan Workers Union v. Aboitiz, G.R. No. L-30241, June 30, 1972, 45 SCRA 577.
4 Transportation-Communication Employees Union v. Union P.R. Co., 385 US 157, 17 L Ed 2d 264, 87 S Ct 369; John Wiley & Sons, Inc. v. Livingston, 376 US 543, 11 L Ed 2d 898, 84 S Ct 909.
5 48A Am Jur 2d, s. 1800, pp. 255-256.
6 Singapore Airlines Local Employees Association v. NLRC, G.R. No. L-65786, July 16, 1984, 130 SCRA 472.
7 Nestle Philippines, Inc. v. NLRC, G.R. No. 921231, February 4, 1991, 193 SCRA 504.
8 Singapore Airlines Local Employees Association v. NLRC. supra, citing Martin v. Sheppard, 102 S Co. 2nd p. 1036; Adamowski v. Bard, AC Pa. 193F 2s p. 578.
9 p. 43, Rollo.
10 Article 100, Labor Code of the Philippines; Nestle Philippines, Inc. v. NLRC, G.R. No. 91231, February 4, 1991, 193 SCRA 504; Tiangco, et. al. v. Leogardo, G.R. No. L-57636, May 16, 1983, 122 SCRA 267.
11 p. 29, Rollo; p. 36, Rollo.
12 Republic Planters Bank v. NLRC, G.R. No. L-79488, September 30, 1988, 166 SCRA 197.
#
$ + GRSI ® Copyrightregno N94-027
A.M. No. P-89-296 March 22, 1993
OFFICE OF THE COURT ADMINISTRATOR vs. LETICIA VILLAR-NOOL
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
A.M. No. P-89-296 March 22, 1993
OFFICE OF THE COURT ADMINISTRATOR, complainant,
vs.
LETICIA VILLAR-NOOL, Court Interpreter, Regional Trial Court, Branch III, respondent.
R E S O L U T I O N
PER CURIAM:
On October 11, 1990, the Office of the Court Administrator filed an administrative complaint against the respondent as follows:
1. That on May 18, 1987 and thereabout, respondent Leticia Villar-Nool, did then and there issue a subpoena (ad testificandum) to a certain Manuel Bala, inmate at the New Bilibid Prison, Bureau of Prisons, Muntinlupa, Metro Manila to appear