Tecson v. Comelec

SEPARATE OPINION

AZCUNA, J.:

“Present your evidence and don’t be nervous . . . .”

- Alice in Wonderland

“[This gets] curioser and curioser . . . .“

- Through the Looking Glass

These are petitions that, directly or indirectly, seek to disqualify a candidate for the Presidency of the land.

Two of the petitions seek a direct action for this purpose, those of petitioners Tecson, et al., and Velez.  These two petitions fail outright.  The “contest” they rely on is as yet non-existing, since it refers to a situation when someone has been proclaimed a winner after the elections and his proclamation is challenged in a “contest.”  The provision in the Constitution (Art. VII, Sec. 4, par. 7, Constitution) that says that “the Supreme Court, sitting en banc, shall be the sole judge of all contests relating to the election, returns, and qualifications of the President or Vice-President,” cannot be invoked before the elections.

The petition of Fornier, on the other hand, took a different route.  Fornier started by filing a petition in the Commission on Elections and, having lost there, he now comes to us for relief.

Precisely what was Fornier’s case in the Comelec?

Fornier sought to disqualify Fernando Poe, Jr. from running for the Presidency on the ground that he stated in his certificate of candidacy a material statement that is false.  What was that?  The statement that he was a natural-born Filipino.  And what did the Comelec do?  It first held, in its First Division, that it had no jurisdiction to rule on the issue, then, en banc, it held that, in any event, Fernando Poe, Jr. has not been shown to have deliberately misrepresented his citizenship even assuming that what he said was false.  It then concluded that there is no ground to cancel his certificate of candidacy because by “a material statement that is false” is meant a deliberate falsehood.

Now, Fornier seeks to declare the Comelec en banc decision as erroneous and/or done with grave abuse of discretion amounting to lack or excess of jurisdiction.

Fornier argues that the Comelec en banc erred and/or gravely abused its discretion in that it should have squarely ruled on whether or not the statement of Poe, Jr. regarding his citizenship is false.  Fornier further argues that the statement is in fact false so that Poe, Jr. is not qualified to run for President and should have been so declared and/or should be so declared by us now.

The first question is, do we have power or jurisdiction to review the Comelec en banc decision?

I say that we do, on two counts:  First, under the specific provision of the Constitution stating that any decision, order, or ruling of the Comelec may be brought to us on certiorari by the aggrieved party within thirty days from receipt of a copy thereof (Art. IX, A., Sec. 7, Constitution).  And second, under our power to determine whether or not there has been a grave abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or instrumentality of the Government (Art. VIII, Sec. 1, Constitution).

Addressing the subject at hand, how do we proceed?

First, by recognizing that we can only resolve questions of law and of jurisdiction, not of facts.

Is the question whether or not Fernando Poe, Jr. made a material representation that is false in his certificate of candidacy one of law, of jurisdiction, or of facts?

I submit that it has aspects of all three.  We can resolve only the first and second (law and jurisdiction) but not the third (factual) aspects.

Accordingly, we shall proceed on the basis principally of three undisputed facts.  These are:

1.  The fact that Fernando Poe, Jr. was born on August 20, 1939 (Birth Certificate);

2.  The fact that Fernando Poe, Sr. and Bessie Kelley (Poe, Jr.’s mother) were married on September 16, 1940 (Marriage Contract); and

3.  The fact that Bessie Kelley was an American citizen (Admission in the Answer of Poe, Jr.).

I first wanted to refer the case back to the Comelec for reception of more evidence to cover gaps in the factual premises.  There being no majority to sustain that course, I have to proceed by seeking to resolve the issues raised on the basis of the facts available to us now.

From the foregoing facts, Fornier argues that Poe, Jr. is shown to be an illegitimate child, since he was born before, or outside of, marriage, and thus, applying a number of our decisions in the past,[1] he follows the citizenship of his mother.  Poe, Jr., therefore, was an American citizen at birth.  Thus, he is not a natural-born Filipino, for the Constitution defines that term to mean one who is so at birth without having to perform any act to acquire or perfect his citizenship (Art. IV, Sec. 2, Constitution).  Upon this reasoning, Fornier rests his case, arguing that the Comelec cannot evade this issue as its goes into the falsity of the statement made in the certificate of candidacy (which Fornier claims was deliberately made) and, it also goes into the qualifications of a

candidate for President, which the Comelec is empowered to determine even before the elections.

Is he right?

I submit that he is not.  Fornier’s case rests on the premise that Fernando Poe, Jr. is an illegitimate child at birth.

This takes us into the realm of civil law, regarding which we are thankful for the excellent presentation of amicus curiae Professor Ruben C. Balane, and under which an illegitimate (natural) child becomes legitimated by the subsequent marriage of his parents.

It is true that under the Old Civil Code, prevailing when Poe, Jr. was born, the effects of legitimation retroact only to the time of the marriage, and not to the time of birth.[2] However, the New Civil Code, effective on August 30, 1950, made the effects retroact to the time of the birth of the child.[3] It is also true that the Old Civil Code required, in addition to the marriage, an acknowledgment by the parent(s) in the birth certificate, a will or any public instrument.[4] Under the New Civil Code, however, this was liberalized so that acknowledgment can be done also in a statement before a court of record or in any authentic writing. [5] Furthermore, these new provisions of the law are made expressly applicable to persons born under the old regime if these are beneficial to them.[6]  And, finally, under the Family Code of 1988, even the need for acknowledgment has been dropped, and retroactivity is also provided for, without prejudice to vested rights.[7]

Now, what we are concerned with here are not the civil rights of the person -- whether to support or to succession in the estate.  And, as admitted by Fornier’s counsel during the oral arguments, violation of vested rights are not presumed but must be proved, which has not been done here.  Accordingly, at issue here is simply political status as a citizen, as ably pointed out by amicus curiae Justice Vicente V. Mendoza. Therefore, I hold the view that the new legislations retroact to benefit Poe, Jr., so that he must be deemed legitimated as of his birth.  Since a legitimated child has all the rights of a legitimate child (and here, as stated, we refer only to citizenship), it is clear that, pursuant to the law, not being illegitimate at birth, Poe, Jr. does not follow the citizenship of his mother.

As to the point that such legitimation needed an act after birth, namely, the marriage of the parents, the same would not detract from the concept of a natural-born citizen.  For the definition in the Constitution refers to those who are citizens from birth without having to perform any act to acquire or perfect their citizenship (Art. IV, Sec. 2, Constitution).  Thus, it speaks of an act having to be done by the child, to acquire or perfect his citizenship, and does not cover acts of his parents.

From this it follows that Fornier’s case falls, since he has not proven that Poe, Jr. was not a Filipino citizen at birth, a point that as petitioner he has the burden of showing.

For the nonce, this suffices.  The rest of the questions, fortunately or unfortunately, will have to be resolved in an election contest, should one become appropriate in the

future, in which the points brilliantly covered by amici curiae Rev. Joaquin G. Bernas, S.J. and Dean Merlin M. Magallona regarding the determination of the citizenship of Poe, Jr.’s father, may find application once the pertinent factual premises shall have been duly presented and established.

I VOTE, THEREFORE, to DISMISS the petitions of Tecson, et al., and Velez for lack of jurisdiction, and to DENY the petition of Fornier for lack of merit.

FIRST DIVISION  G.R. Nos. 162335 & 162605 ---      Severino M. Manotok IV, et al.,                                                          Petitioners, versus Heirs of Homer                                                          L. Barque, et al., Respondents.                                                           Promulgated:                                                                    December 12, 2005x ---------------------------------------------------------------------------------------- x 

SEPARATE OPINION AZCUNA, J.:           From the record it appears undisputed that, as the LRA ruled and the CA affirmed, petitioners Manotoks’ TCT No. RT-22481 [372302] is sham and spurious.  For one thing, the property is purportedly located in barrio Payong, Quezon City,

whereas no such barrio existed or exists therein.  It is, therefore, in my view, unnecessary to go though the exercise of proving this matter again in the regular courts, as would ordinarily be required, since the point is indubitable.           I thus find applicable the ruling of this Court in Ortigas and Company Limited Partnership v. Veloso,[1] as it would be unjust in the circumstances to require respondents to undergo a time-consuming and pointless exercise to cancel an evidently sham and spurious title.           I, therefore, concur with Justice Consuelo Ynares-Santiago and vote to DENY the petitions.                                                                    ADOLFO S. AZCUNA                                                                          Associate Justice

[1]               G.R. No. 109645, July 25, 1994, 234 SCRA 455.

EN BANC  G.R. No. 168056 (ABAKADA Guro Party List [formerly ASSJS]

Officers Samson S. Alcantara, et al. v. Hon. Executive Secretary Eduardo Ermita, et al.);

G.R. No. 168207 (Aquilino Q. Pimentel, Jr., et al. v. Executive Secretary Eduardo R. Ermita, et al.);

G.R. No. 168461 (Association of Pilipinas Shell Dealers, Inc., etc., et al. v. Cesar V. Purisima, etc., et al.);

G.R. No. 168463 (Francis Joseph G. Escudero, et al. v. Cesar V. Purisima, etc., et al.); and

G.R. No. 168730 (Bataan Governor Enrique T. Garcia, Jr. v. Hon. Eduardo R. Ermita, etc., et al.)

                         Promulgated:

                                                                            September 1, 2005 X----------------------------------------------------------------------------------------X 

CONCURRING AND DISSENTING OPINION  

AZCUNA, J.:                    Republic Act No. 9337, the E-VAT law, is assailed as an unconstitutional abdication of Congress of its power to tax through its delegation to the President of the decision to increase the rate of the tax from 10% to 12%, effectiveJanuary 1, 2006, after any of two conditions has been satisfied.[1]

          

The two conditions are: 

            (i)        Value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous year exceeds two and four-fifth percent (2 4/5%); or             (ii)       National government deficit as a percentage of GDP of the previous year exceeds one and one-half percent (1 ½%).[2]         

 

          A scrutiny of these “conditions” shows that one of them is certain to happen on January 1, 2006.           The first condition is that the collection from the E-VAT exceeds 2 4/5% of the Gross Domestic Product (GDP) of the previous year, a ratio that is known as the tax effort.           The second condition is that the national government deficit exceeds 1 ½% of the GDP of the previous year.           Note that the law says that the rate shall be increased if any of the two conditions happens, i.e., if condition (i)or condition (ii) occurs.         

Now, in realistic terms, considering the short time-frame given, the only practicable way that the present deficit of the national  government   can be    reduced   to 1 ½% or lower, thus preventing condition (ii) from happening, is to increase the tax effort, which mainly has to come from the E-VAT.  But increasing the tax effort through the E-VAT, to the extent needed to reduce the national deficit to 1 ½% or less, will trigger the happening of condition (i) under the law.  Thus, the happening of condition (i) or condition (ii) is in reality certain and unavoidable, as of January 1, 2006. 

This becomes all the more clear when we consider the figures provided during the oral arguments.           The Gross Domestic Product for 2005 is estimated at P5.3 Trillion pesos.           The tax effort of the present VAT is now at 1.5%.           The national budgetary deficit against the GDP is now at 3%. 

          So to reduce the deficit to 1.5% from 3%, one has to increase the tax effort from VAT, now at 1.5%, to at least 3%, thereby exceeding the 2 4/5 percent ceiling in condition (i), making condition (i) happen.  

If, on the other hand, this is not done, then condition (ii) happens – the budget deficit remains over 1.5%.           What is the result of this?  The result is that in reality, the law does not impose any condition, or the rate increase thereunder, from 10% to 12%, effective January 1, 2006, is unconditional.  For a condition is an event that may or may not happen, or one whose occurrence is uncertain.[3]  Now while condition (i) is indeed uncertain and condition (ii) is likewise uncertain, the combination of both makes the occurrence of one of them certain.           Accordingly, there is here no abdication by Congress of its power to fix the rate of the tax since the rate increase provided under the law,  from  10%  to  12%,  is definite and certain to occur, effective January 1, 2006.  All that the President will do is state which of the two conditions occurred and thereupon implement the rate increase.           At first glance, therefore, it would appear that the decision to increase the rate is to be made by the President, or that the increase is still uncertain, as it is subject to the happening of any of two conditions.           Nevertheless, the contrary is true and thus it would be best in these difficult and critical times to let our people know precisely what burdens they are being asked to bear as the necessary means to recover from a crisis that calls for a heroic sacrifice by all. 

It is for this reason that the Court required respondents to submit a copy of the rules to implement the E-VAT, particularly as to the impact of the tax on prices of affected commodities, specially oil and electricity.  For the onset of the law last July 1, 2005 was confusing, resulting in across-the-board increases of 10% in the prices of commodities.  This is not supposed to be the effect of the law, as was made clear during the oral arguments, because the law also contains provisions that mitigate the impact of the E-VAT through reduction of other kinds of taxes and duties, and other similar measures, specially as to goods that go into the supply chain of the affected products.  A proper implementation of the E-VAT, therefore, should cause only the appropriate incremental increase in prices, reflecting the net incremental effect of the tax, which is not necessarily 10%, but possibly less, depending on the products involved.

 The introduction of the mitigating or cushioning measures

through the Senate or through the Bicameral Conference Committee, is also being questioned by petitioners as unconstitutional for violating the rule against amendments after third reading and the rule that tax measures must originate exclusively in the House of Representatives (Art. VI, Secs. 24 and 26 [2], Constitution).  For my part, I would rather give the necessary leeway to Congress, as long as the changes are germane to the bill being changed, the bill which 

originated from the House of Representatives, and these are so, since these were precisely the mitigating measures that go hand-on-hand with the E-VAT, and are, therefore, essential -- and hopefully sufficient -- means to enable our people to bear the sacrifices they are being asked to make.  Such an approach is in accordance with the Enrolled Bill Doctrine that is the prevailing rule in this jurisdiction.  (Tolentino v. Secretary of Finance, 249 SCRA 628 [1994]).  The exceptions I find are the provisions on corporate income taxes, which are not germane to the E-VAT law, and are not found in the Senate and House bills.

 

          I thus agree with Chief Justice Hilario G. Davide, Jr. in his separate opinion that the following are not germane to the E-VAT legislation: Amended TAXCODE Provision                    Subject MatterSection 27                     Rate of income tax on domestic corporationsSection 28(A)(1)            Rate of income tax on resident foreign

corporationsSection 28(B)(1)            Rate of income tax on non-resident

foreign corporationsSection 28(B)(5-b)         Rate of income tax on intercorporate

dividends received by non-resident foreign corporations

Section 34(B)(1)            Deduction from gross income           Similarly, I agree with Justice Artemio V. Panganiban in his separate opinion that the following are not germane to the E-VAT law:          “Sections 1, 2, and 3 of the Republic Act No. 9337…, in so far as these sections (a) amend the rates of income tax on domestic, resident foreign, and nonresident foreign corporations; (b) amend the tax credit against taxes due from nonresident foreign corporations on the intercorporate dividends; and (c) reduce the allowable deduction from interest expense.”           Respondents should, in any case, now be able to implement the E-VAT law without confusion and thereby achieve its purpose.[4]

           I vote to GRANT the petitions to the extent of declaring unconstitutional the provisions in Republic Act. No. 9337 that are not germane to the subject matter and DENY said petitions as to the rest of the law, which are constitutional. 

                                                                     ADOLFO S. AZCUNA                                                                          Associate Justice         

[1]               The Constitution states that “Congress may, by law,  allow the President to fix within specified limits, and subject to such limitations and restrictions as it may impose, tariff rates, import and export quotas, tonnage and wharfage dues, and other duties as imposts within the framework of the national development program of the Government.”  (Art. VI, Sec. 28 [2], emphasis supplied.)                Petitioners claim that the power does not extend to fixing the rates of taxes, since taxes are not tariffs, import and export quotas, tonnage and wharfage dues, or other duties or imposts.[2]               Section 4, Republic Act No. 9337.  The pertinent portion of the provision states:

                SEC. 4.  Section 106 of the same Code, as amended, is hereby further amended to read as follows:

                “SEC. 106. Value-added Tax on Sale of Goods or Properties. –                 “(A)        Rate and Base of Tax. – There shall be levied, assessed and collected on every sale, barter or exchange of goods or properties, a value-added tax equivalent to ten percent (10%) of the gross selling price or gross value in money of the goods or properties sold, bartered or exchanged, such tax to be paid by the seller or transferor:  Provided, That the President, upon the recommendation of the Secretary of Finance, shall, effective January 1, 2006, raise the rate of value-added tax to twelve percent (12%), after any of the following conditions has been satisfied:                “(i)          Value-added tax collection as a percentage of Gross Domestic Product (GDP) of the previous year exceeds two and four-fifth percent (2 4/5%); or                “(ii)        National government deficit as a percentage of GDP of the previous year exceeds one and one-half percent (1 ½%).”

[3]               Condition has been defined by Escriche as “every future and uncertain event upon which an obligation or provision is made to depend.”  It is a future and uncertain event upon which the acquisition or resolution of rights is made to depend by those who execute the juridical act.  Futurity and uncertainty must concur as characteristics of the event.

. . .                An event which is not uncertain but must necessarily happen cannot be a condition; the obligation will be considered as one with a term. (IV TOLENTINO, COMMENTARIES AND JURISPRUDENCE ON THE CIVIL CODE OF THE PHILIPPINES, 144).[4]               I voted for the issuance of the temporary restraining order to prevent the disorderly implementation of the law that would have defeated its very purpose and disrupted the entire VAT system, resulting in less revenues.  The rationale, therefore, of the rule against enjoining the collection of taxes, that taxes are the lifeblood of Government, leaned in favor of the temporary restraining order. 

    

SECOND DIVISION 

PHILIPPINE AIRLINES, INC.,                G.R. No. 143088MANOLO AQUINO, JORGEMA. CUI, JR. and PATRICIA                  Present:CHIONG,

Petitioners,                             PUNO, J., Chairperson,                                                                             SANDOVAL-GUTIERREZ,                                                                             CORONA,                   -versus-                                            AZCUNA, and

GARCIA, JJ.                            

                                                                   Promulgated:              FLIGHT ATTENDANTS ANDSTEWARDS ASSOCIATION OFTHE PHILIPPINES (FASAP) and                     January 24, 2006LEONARDO BHAGWANI,                             Respondents.               x----------------------------------------------------------------------------------------x  

DECISIONAZCUNA, J.: 

            This petition for review on certiorari under Rule 45 of the Rules of Court presents a recurring question regarding the Court’s requirement of a certification of non-forum shopping. 

Petitioners Philippine Airlines, Inc. (PAL) and Manolo Aquino, Jorge Ma. Cui, Jr. and Patricia Chiong, in their capacity as Executive Vice-President Administration and Services, Manager International Cabin Crew and Assistant Vice-President Cabin Services, respectively, are before the Court seeking the reversal of the resolution of the Court of Appeals in C.A. G.R. No. SP-56850, dated January 31, 2000, dismissing their appeal and the resolution of May 11, 2000, denying the motion for reconsideration.

 The facts on the conflict between PAL and respondents Flight

Attendants and Stewards Association of the Philippines (FASAP) and Leonardo Bhagwani are not necessary for the Court’s resolution of the petition. It is enough to state that on May 14, 1997 FASAP and Leonardo Bhagwani filed a complaint for unfair labor practice, illegal suspension and illegal dismissal against petitioners before the Labor Arbiter of the National Labor Relations Commission (NLRC). The Labor Arbiter rendered a decision holding that PAL committed unfair labor practice and illegal dismissal of Bhagwani and, consequently, ordered the payment of damages. The NLRC later modified the decision by setting aside the finding that PAL was guilty of unfair labor practice, but affirming the rest of the decision.

 What is relevant to the case is the subsequent appeal to the

Court of Appeals. When petitioners filed a petition for certiorari against the decision with the Court of Appeals, it was accompanied by a Certification of Non-Forum Shopping executed by Cesar R. Lamberte and Susan Del Carmen, Vice-President Human Resources and Assistant Vice-President Cabin Services of PAL, respectively, who are not parties to the case. The certification, however, was without proof that the two affiants had

authority to sign in behalf of petitioners. As a result, the Court of Appeals dismissed the case for failure to show the authority of affiants to sign for PAL and for failure of the other petitioners to join in the execution of the certification. A motion for reconsideration was filed with a Secretary’s Certificate attached evidencing that affiants Cesar R. Lamberte and Susan Del Carmen have been authorized by Board Resolution No. 00-02-03 to initiate and/or cause to be filed on behalf of PAL petitions and pleadings in all labor-related cases. As to the other petitioners, it was argued that they are mere nominal parties so that their failure to execute the certification does not justify dismissal of the petition. Despite this submission, the Court of Appeals denied the motion for reconsideration. Hence, the case is now before this Court.           The petition is without merit.           The necessity for a certification of non-forum shopping in filing petitions for certiorari is found in Rule 65, Section 1, in relation to Rule 46, Section 3 of the Rules of Court. These provisions require it to be executed by the corresponding petitioner or petitioners. As no distinction is made as to which party must execute the certificate, this requirement is made to apply to both natural and juridical entities.[1] When the petitioner is a corporation, the certification should be executed by a natural person. Furthermore, not just any person can be called upon to execute the certification, although such a person may have personal knowledge of the facts to be attested to.[2]

 This Court has explained that a corporation has no power

except those conferred on it by the Corporation Code and those that are implied or incidental to its existence. The exercise of these powers is done through the board of directors and/or duly authorized officers and agents. Given these corporate features, the power of a corporation to sue in any court is generally lodged with the board of directors. The board, in turn, can delegate the physical acts needed to sue, which may be performed only by

natural persons, to its attorneys-in-fact by a board resolution, if not already authorized under the corporate by-laws.[3]

 Thus, only individuals vested with authority by a valid board

resolution may sign the certificate of non-forum shopping in behalf of a corporation. In addition, the Court has required that proof of said authority must be attached. Failure to provide a certificate of non-forum shopping is sufficient ground to dismiss the petition. Likewise, the petition is subject to dismissal if a certification was submitted unaccompanied by proof of the signatory’s authority.[4]

 The petition filed with the Court of Appeals had a

certification of non-forum shopping executed by Cesar R. Lamberte and Susan Del Carmen. The certification, however, was without proof of authority to sign. When a motion for reconsideration was filed, a Secretary’s Certificate was submitted as proof that the board of directors of PAL had authorized the two to execute the certificate. Nonetheless, the Court finds that this belated submission is an insufficient compliance with the certification requirement.

 This Court has allowed the reinstatement of petitions that

were dismissed due to lack of proof of authority to sign the certification upon   its   subsequent   submission,   saying   that   this   amounted tosubstantial compliance. The rationale was that the signatories, at the time of execution of the certification, were in fact authorized to sign, although proof of their authority was lacking.[5]

 This is not what happened in this case. A perusal of the

Secretary’s Certificate submitted reveals that the authority to cause the filing of the petition was granted on February 15, 2000.[6] The petition, on the other hand, was filed on January 24, 2000 and was dismissed by the Court of Appeals on January 31, 2000. This means that at the time the certification was signed,

Cesar R. Lamberte and Susan Del Carmen were not duly authorized by the Board of Directors of PAL and, consequently, their signing and attestations were not in representation of PAL. This effectively translates to a petition that was filed without a certification at all as none was issued by PAL, the principal party to the case.

 The required certification of non-forum shopping must be

valid at the time of filing of the petition. An invalid certificate cannot be remedied by the subsequent submission of a Secretary’s Certificate that vests authority only after the petition had been filed.

 WHEREFORE, the petition is DENIED. No costs.

           SO ORDERED. 

 ADOLFO S. AZCUNA

Associate JusticeWE CONCUR:

   

REYNATO S. PUNO                                                 Chairperson                                                           ANGELINA SANDOVAL-GUTIERREZ                  RENATO C. CORONA                  Associate Justice                                     Associate Justice 

  

CANCIO C. GARCIAAssociate Justice

  

ATTESTATION          I attest that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.                                                                              REYNATO S. PUNO                                                                         Associate Justice                                                            Chairperson, Second Division 

CERTIFICATIONPursuant to Section 13, Article VIII of the Constitution and

the Division Chairman’s Attestation, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division. 

 ARTEMIO V. PANGANIBAN

Chief Justice

[1]               Rodriguez, Jr. v. NLRC, G.R. No. 153947, December 5, 2002, 393 SCRA 511.[2]               Digital Microwave Corporation v. Court of Appeals and Asian High Technology

Corporation, G.R. No. 128550, March 16, 2000, 328 SCRA 286.[3]               BA Savings Bank v. Sia, G.R. No. 131214, July 27, 2000, 336 SCRA 484.[4]               Shipside Incorporated v. Court of Appeals, G.R. No. 143377, February 20, 2001,

352 SCRA 334.[5]               General Milling Corporation v. NLRC, G.R. No. 153199, December 17, 2002, 394 SCRA 207.[6]               Rollo, pp. 175-176.

    

FIRST DIVISION 

NEW EVER MARKETING, INC.,          G.R. No. 140555                                      Petitioner,                                                                   Present:                                                                                                         DAVIDE, JR., C.J. (Chairman),                   - versus -                                          QUISUMBING,                                                                             YNARES-SANTIAGO,                                                                             CARPIO, and                                                                             AZCUNA, JJ.HON. COURT OF APPEALS,ESPIRITU YLANAN, CESAR FULO,and WILFREDO BILASA,                       Promulgated:                                           Respondents.                                                                            July 14, 2005                                                                                   x-----------------------------------------------------------------------------------------x 

DECISION 

AZCUNA, J.: 

          Petitioner New Ever Marketing, Inc. hired respondents

Espiritu Ylanan and Cesar Fulo as drivers and Wilfredo Bilasa as

delivery man (pahinante) commencing in February 1987,

November 1988, and June 1989, respectively.  Respondents filed

against petitioner and Marcelo Calacday, its General Manager, a

complaint for illegal dismissal and sought the payment of

overtime pay, premium pay for services rendered during holidays,

service incentive leave, and 13th month pay for the year 1994. 

They also filed a separate case against petitioner with the Social

Security System for alleged non-remittance of SSS premiums.

 

          In their complaints, respondents alleged, as follows:

 

          Respondent Ylanan:  That a fine of P500.00 for a traffic

violation he committed on September 12, 1994, supposedly for

the account of the petitioner, was deducted from his salary for

September 17, 1994; that for his October 15, 1994 salary,

deductions were made for SSS premiums corresponding to the

months of January and February 1993, but apparently, the same

were not accordingly remitted; that from October 17-22, 1994, he

did not report for work because he attended to an errand; that

when he reported back for work on October 24, 1994 and October

25, 1994 (with respondents Fulo and Bilasa), he was barred from

entering the premises and instructed to wait for a certain Ding

who later arrived at noon time, after he had left the premises;

that when he called the office the next day, October 26, 1994,

Sally, the office secretary, told him to report for work on October

31, 1994; that when he reported for work on October 31, 1994,

petitioner company was closed and the company guard told him

to come back on November 2, 1994; that when he arrived on

November 2, 1994, the company guard again told him to wait for

Ding who arrived at noon time after he had left; and that on

November 3, 1994, Calacday informed him and respondent Fulo

that they were considered as “AWOL [absent without official

leave].”

 

          Respondent Fulo:  That on October 15, 1994, petitioner

asked him to secure a new Community Tax Certificate; that as

October 16, 1994 was a Sunday, he did not report for work the

following day, October 17, 1994, to be able to secure one; that

when he reported for work on October 18, 1994, he was

prevented by the company guard from entering the company

premises and asked to wait for Ding who did not arrive until noon

that day, so he went home; that from October 19 to November 2,

1994, he reported for work daily, but was made to wait for Ding;

and that because of the foregoing, he and the two other

respondents were constrained to file a complaint for illegal

dismissal against the petitioner and Calacday.

 

          Respondent Bilasa:  That on October 17, 1994, he was sent

home due to his allergies; that because of his condition,  he

informed Calacday that he may not be able to report for work the

following day; that the next day, October 18, 1994, he was absent

as his allergy had not subsided; that after seeking medical

attention, the doctor advised him to take a leave of absence for

one week; that when he reported for work on October 24, 1994,

he was denied entry to the premises until Ding arrived; and that

he never received any letter from the petitioner informing him

that he had abandoned his work.

 

          For its part, as to respondents Fulo and Ylanan, petitioner

countered:  That starting October 17, 1994, they failed to report

for work without filing a leave of absence; that on October 21,

1994, Calacday sent a letter requiring them to explain why no

disciplinary action should be taken against them for violating

company rules on absences and tardiness; that despite receipt of

the said letter, respondents did not submit any written

explanation; and that on November 4, 1994, petitioner sent

another letter informing them that they were deemed to have

abandoned their jobs. 

 

          As to respondent Bilasa, petitioner averred:  That on

October 19, 1994, respondent Bilasa was absent from work

without filing a leave of absence; that on October 23, 1994,

petitioner sent him a memorandum, directing him to explain why

no disciplinary action should be taken against him for being

absent, but he failed to do so; and that on November 4, 1994,

petitioner gave another memorandum informing Bilasa that he

was deemed to have abandoned his job for failure to explain his

unexcused absences.  

 

Petitioner also asserted that it validly terminated the

services of respondents due to abandonment of work and that the

matter had been reported to the Department of Labor and

Employment.  Calacday pointed out that he should be excluded

from being a party to the case as petitioner has a separate and

distinct personality.

 

          On May 3, 1996, the Labor Arbiter (LA) rendered a decision

dismissing the complaint for illegal dismissal on the ground that

petitioner had a just cause to dismiss respondents, i.e., for

abandonment of work, and that petitioner had complied with the

notice requirement prior to terminating their employment. 

However, the labor arbiter ordered petitioner to pay the monetary

claims of respondents for unpaid wages, 13th month pay, and

service incentive leave pay for the year 1994 since there was no

proof that the same had been paid.  

 

          Respondents interposed a partial appeal to the National

Labor Relations Commission (NLRC) on the dismissal of the

complaint for illegal dismissal and the other monetary claims

against petitioner.

 

On June 16, 1997, the NLRC modified the decision of the LA. 

It found petitioner guilty of constructively dismissing

respondents.  The NLRC ordered petitioner to reinstate

respondents to their positions without loss of seniority rights and

other privileges appurtenant thereto, with the payment of full

backwages from the time they were illegally dismissed until

actual reinstatement.  The pertinent portions of the NLRC’s

decision state:

 In his Decision, however, the Labor Arbiter a quo gave

undue credence to respondents’ claims that complainants herein abandoned their jobs after memoranda were allegedly sent to them directing them to explain why no disciplinary action should be taken against them for having been absent without the necessary leave application (Annexes “1,” “3” and “7,” Respondent’s Position Paper).

 A close examination of the aforesaid memos, however,

readily reveals the absence of proof that they were indeed sent to, much less received by, the herein complainants.  Certainly, such absence is fatal, more so under complainants’ vehement denial that they ever received such memos.  Clearly, under this fact, such memos cannot take the place of notice to comply with the requisite of a valid notice in administrative due process.

 Moreover, in cases of abandonment, the absence

of “animus revertendi” must be clearly proven.  Respondent, We find, failed to discharge this burden.  It failed to show that

complainants indeed no longer intended to return to their jobs inspite of due notice afforded to them to do so.

 On the contrary, We are convinced that the proximity of

the filing of their complaint with what they perceive to be the unreasonable arrival of “Ding” as they were instructed to wait for, is concrete proof sufficient to show that they have the least intention to give up their job, much less abandon the same.

 It is not amiss to state at this juncture that during the

period they were waiting for the said “Ding” to arrive, they were not allowed to work and their daily time records would show no attendance, but such cannot be taken against them.

 Suffice it to state that We are far from convinced of

respondents’ claims that complainants[‘] services were terminated for cause.  Conversely, we are convinced that complainants were indeed instructed to wait for a certain “Ding” as a condition precedent for their resumption of work.  The waiting for the said “Ding” for an unreasonable length of time certainly cannot prevent[,] much less preclude[,] herein complainants from filing the instant case.  They were undoubtedly constructively dismissed at the time of the filing of their complaint.

 WHEREFORE, the decision appealed from is hereby

MODIFIED in that Respondents are hereby declared guilty of illegally and constructively terminating the services of complainants Espiritu Ylanan, Cesar Fulo and Wilfredo Bilasa.  Further, respondents are ordered to reinstate them to their former position[s] without loss of seniority rights and other privileges appurtenant thereto with full backwages from the time of their dismissal until actually reinstated.   The other dispositions in the appealed decision are deemed final and executory.

 SO ORDERED.[1]

  

          On petition for review, the Court of Appeals (CA) dismissed

petitioner’s action and later denied its motions for

reconsideration. 

         

          Petitioner seeks to annul the Resolution of the Court of

Appeals dismissing its petition, dated March 16, 1999, and the

Resolutions denying reconsiderations, dated September 24, 1999

and October 27, 1999, by “invok[ing] the power of the Court

under Rule 65 of the 1997 Rules of Civil Procedure because there

is no appeal or any plain, speedy and adequate remedy in the

ordinary course of law” and stating that “this petition is not in any

way intended to delay the decision of the [NLRC] dated June [16],

1997, but the undersigned new counsel for the petitioner is

exhausting all legal remedies available to the petitioner.”             

 

          A perusal of the antecedents shows that petitioner’s

petition for certiorari (with prayer for the issuance of a writ of

preliminary injunction) filed with the CA was dismissed outright in

a Resolution dated March 16, 1999 on two grounds, namely, 

failure to attach an affidavit of service as proof that a copy of its

petition had been duly served upon the NLRC and the

respondents, and lack of allegations as to material dates to show

the timeliness of the filing of the petition pursuant to Section 3,

Rule 46 in relation to Section 4, Rule 65 of the Rules of Civil

Procedure. 

 

After receiving a copy of the Resolution dated March 16,

1999 on March 26, 1999, petitioner, on April 7, 1999 (through its

former counsel), filed a motion for reconsideration and

supplement to the motion for reconsideration.  Petitioner’s motion

alleged that its failure to furnish the NLRC and the respondents

with copies of the petition was due to “an honest but excusable

mistake in the interpretation and application of Section 6, Rule 65

of the Rules of Court.”  It insisted that its interpretation of the

provision was that the copies of the petition would be furnished to

the NLRC and the respondents only after the Court of Appeals

finds its petition to be sufficient in form and substance. 

 

On September 24, 1999, the appeals court denied

petitioner’s motion for reconsideration for lack of merit, stating

that it was bound by the negligence and mistake of its counsel

and, likewise, denied its prayer for the issuance of a temporary

restraining order for being moot and academic.  Petitioner

received a copy of the said Resolution on October 13, 1999.  On

October 21, 1999, petitioner’s former counsel filed a notice of

withdrawal of appearance.  On the same day, October 21, 1999,

petitioner’s new counsel filed an entry of appearance and sought

another reconsideration invoking substantial justice and its

subsequent compliance with the procedural rules.  On October 27,

1999, the CA denied the second motion for reconsideration for

being a prohibited pleading under Section 2, Rule 52 of the Rules

of Court.  Petitioner received a copy of the Resolution on

November 8, 1999.  On November 17, 1999, petitioner filed with

this Court its petition for certiorari under Rule 65 of the Rules of

Court. 

         

          The petition is based on a misapprehension of procedural

rules.  It bears stressing that when petitioner, on October 13,

1999, received a copy of the CA Resolution dated September 24,

1999 denying its motion for reconsideration, it had fifteen (15)

days from receipt thereof within which to file a petition for review

on certiorariunder Sections 1 and 2, Rule 45 of the Rules of

Court.  Section 2 thereof also allows petitioner to file, within the

15-day period, a motion for extension of time of thirty (30) days

within which to file such petition.  This is because the CA

Resolution dated March 16, 1999 which outrightly dismissed its

petition for non-compliance with the procedural rules, and the

Resolution dated September 24, 1999, which denied its motion for

reconsideration, partake of the nature of a final disposition of the

case.  Hence, the appropriate remedy to this Court is a petition

for review oncertiorari under Rule 45, not a petition

for certiorari under Rule 65.  In this case, petitioner filed a second

motion for reconsideration which the CA correctly denied for

being a prohibited motion.  The filing of a prohibited motion did

not interrupt the running of the 15-day reglementary

period[2] within which petitioner should have filed the petition

under Rule 45.

 

This petition for certiorari under Rule 65 should, therefore,

be dismissed for being the wrong remedy.  The rule is that the

special civil action of certiorari under Rule 65 is not, and cannot

be, a substitute for a lost remedy of appeal, especially if the loss

is occasioned by the petitioner’s own neglect or error in the

choice of remedies.[3]    

 

          Petitioner, however, invokes substantial justice on the

reasoning that the failure of its former counsel to furnish copies of

the petition to the NLRC and the private respondents was not due

to an error of law, but to an error in the interpretation of the

provision of Section 6, Rule 65 of the Rules of Court which should

be considered as an excusable mistake.

 

          The submission is untenable.  Section 1, Rule 65 in relation

to Section 3, Rule 46 of the Rules of Court, clearly states that in a

petition filed originally in the Court of Appeals, the petitioner is

required to serve copies of the petition, together with the

annexes thereto, on the lower court or tribunal concerned, in this

case, the NLRC, and on the adverse parties, the herein

respondents, before the filing of said petition.  The clear import of

the provisions does not reasonably admit of any other

interpretation.       

  

          Finally, even if this Court were to treat the present petition

as a petition for review on certiorari under Rule 45 and overlook

its procedural infirmity, the same would still be denied for lack of

merit. 

 

          First.  Petitioner asserts that through its General Manager,

Marcelo Calacday, it had sent a letter requiring the respondents

to explain why it should not take disciplinary actions against them

for violation of company rules on absences and tardiness; that

despite receipt of the said letter, respondents did not submit any

written explanation thereto; and that, thereafter, it sent another

letter informing them that they were deemed to have abandoned

their jobs. 

 

          These allegations have not been sufficiently proven.  Under

the Labor Code, there are twin requirements to justify a valid

dismissal from employment:  (a) the dismissal must be for any of

the causes provided in Article 282 of the Labor Code (substantive

aspect) and (b) the employee must be given an opportunity to be

heard and defend himself (procedural aspect).[4]  As to procedural

aspect, two notices are required:  (a) written notice containing a

statement of the cause for termination, to afford the employee an

opportunity to be heard and defend himself with the assistance of

his representative, if he desires; and (b) if the employer decides

to terminate the services of the employee, written notice must be

given to the employee stating clearly the reason therefor.[5]  The

records reveal that petitioner did not 

adduce evidence that it had served the respondents with copies

of the memoranda (re explanation for their unauthorized

absences) and the subsequent memoranda (re its decision to

terminate their employment due to abandonment) and that the

same were actually received by each of the respondents. 

Petitioner’s bare assertion failed to overcome the declarations of

the respondents that they never received copies of the

memoranda.  

 

          Second.  Petitioner maintains that it had validly dismissed

the respondents for incurring absences without filing the

application for leave which was tantamount to an abandonment of

work and that the respondents did not report for work after the

two memoranda had been sent to them individually.

 

          This contention has no merit.  The substantive aspect for a

valid dismissal provides that to constitute abandonment of work,

two (2) requisites must concur:  (a) the employee must have

failed to report for work or must have been absent without

justifiable reason; and (b) there must have been a clear intention

on the part of the employee to sever the employer-employee

relationship as manifested by overt acts.  Abandonment as a just

ground for dismissal requires deliberate, unjustified refusal of the

employee to resume his employment. Mere absence or failure to

report for work, after notice to return, is not enough to amount to

abandonment.  Moreover, abandonment is a matter of intention;

it cannot be inferred or 

presumed from equivocal acts.[6]  In this case, respondents had

sought permission and had informed petitioner of their reasons

for being absent and had reported back to petitioner's office the

following day.  It cannot be said that respondents had abandoned

their work during the period the absences in question were

incurred.  It became a strange scenario for them to be reporting

for work early in the morning only to be told to wait for Ding who

would arrive at noon time.  In the meantime, they were not even

allowed to enter the premises or do their assigned tasks.  This

being so, respondents sought recourse by filing an illegal

dismissal case against petitioner.  Clearly, respondents never

intended to sever the employer-employee relation and abandon

their work.  On the contrary, they clearly showed their desire to

continue their employment with petitioner and to be reinstated to

their former positions.  Indeed, an employee who loses no time in

protesting his layoff cannot by any reasoning be said to have

abandoned his work, for it is well-settled that the filing by an

employee of a complaint for illegal dismissal with a prayer for

reinstatement is proof enough of his desire to return to work,

thus, negating the employer’s charge of abandonment.[7]

 

          All the antecedents show that petitioner had constructively

dismissed the respondents.  Constructive dismissal is defined as

quitting when continued employment is rendered impossible,

unreasonable or unlikely as the offer of employment involves a

demotion in rank and diminution of pay.[8]  In this case,

respondents were deemed constructively dismissed because

whenever they would report for work in the morning, they were

barred, without any 

justifiable reason, by petitioner’s guard from entering the

premises and were made to wait for Ding who would arrive in the

office at around noon, after they had waited for a long time and

had left.

 

          Petitioner, therefore, failed to prove by clear and

convincing evidence that there was just cause for terminating the

employment of respondents and that there was compliance with

the two-notice rule.  Article 277(b) of the Labor Code places the

burden of proving that the termination of employment was for a

valid or authorized cause on the employer.  The employer’s

failure to discharge this burden means that the dismissal is not

justified and the employee is entitled to reinstatement.  In this

case, petitioner failed to establish that respondents deliberately

and unjustifiably refused to resume their employment without any

intention of returning thereto.           

 

          Under Article 279 of the Labor Code, an employee who is

unjustly dismissed is entitled to reinstatement, without loss of

seniority rights and other privileges, and to the payment of his full

backwages, inclusive of allowances, and other benefits or their

monetary equivalent, computed from the time his compensation

was withheld up to the time of his actual reinstatement.[9] Thus,

respondents are entitled to reinstatement with the payment of full

backwages from the time their compensations were

withheld, i.e., from the time of their illegal dismissal, up to the

time of their actual reinstatement.     

 

          WHEREFORE, the petition is DISMISSED, without costs.

 

          SO ORDERED.

 

 ADOLFO S. AZCUNA

 Associate Justice 

WE CONCUR:   

HILARIO G. DAVIDE, JR.Chief Justice

Chairman   LEONARDO A. QUISUMBING   CONSUELO YNARES-SANTIAGO

Associate Justice                                           Associate Justice   

ANTONIO T. CARPIOAssociate Justice

    

CERTIFICATION         

Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.  

                                                                     HILARIO G. DAVIDE, JR.                                                                                Chief Justice

  

[1]               Rollo, pp. 26-29.[2]               See Hongria v. Hongria-Juarde, G.R. No. 155086, March 15, 2004, 425 SCRA 504.[3]               Land Bank of the Philippines v. Court of Appeals, G.R. No. 129368, August 25,

2003, 409 SCRA 455; Fajardo v. Baustista, G.R. Nos. 102193-97, May 10, 1994, 232 SCRA 291.

[4]               Colegio de San Juan de Letran-Calamba v. Villas, G.R. No. 137795, March 26, 2003, 399 SCRA 550.

[5]               Id.; Rodriguez, Jr. v. National Labor Relations Commission, G.R. No. 153947, December 5, 2002, 393 SCRA 511; C & A Construction Co., Inc. v. NLRC, G.R. No. 122279, November 22, 1999, 318 SCRA 784.

[6]               R.P. Dinglasan Construction, Inc. v. Atienza, G.R. No. 156104, June 29, 2004, 433 SCRA 263; Hantex Trading Co. v. CA, G.R. No. 148241, September 27, 2002, 390 SCRA 181; Lambo v. National Labor Relations Commission, G.R. No. 111042, October 26, 1999, 317 SCRA 420; Metro Transit Organization, Inc. v. NLRC, G.R. No. 119724, May 31, 1999, 307 SCRA 747.

[7]               Samarca v. Arc-Men Industries, Inc., G.R. No. 146118, October 8, 2003, 413 SCRA 162; Lambo v. National Labor Relations Commission, supra, note 6.

[8]               R.P. Dinglasan Construction, Inc. v. Atienza, supra, note 6.[9]               Bustamante v. National Labor Relations Commission, G.R. No. 111651, November

28, 1996, 265 SCRA 61 cited in the cases of Rodriguez, Jr. v. National Labor Relations Commission, supra, note 5; Metro Transit Organization, Inc. v. NLRC, supra, note 6.

   

EN BANC 

CIVIL SERVICE COMMISSION,             G.R. No. 155784NATIONAL CAPITAL REGION,                                      Petitioner,                                                                    Present:                  

                   DAVIDE, JR., C.J.,                   PUNO,

                   PANGANIBAN,                   QUISUMBING,

                                                                             YNARES-SANTIAGO,

SANDOVAL-GUTIERREZ,                                                                             CARPIO,          - versus -                                                    AUSTRIA-MARTINEZ,                                                                             CORONA,                                                                             CARPIO MORALES,                                                                             CALLEJO, SR.,                                                                             AZCUNA,                                                                             TINGA,

CHICO-NAZARIO, andGARCIA, JJ.

RANULFO P. ALBAO,                                      Respondent.        Promulgated:                                                                              October 13, 2005x-----------------------------------------------------------------------------------------x  

DECISION 

AZCUNA, J.: 

           This is a petition for review on certiorari of the Decision of the Court of Appeals in CA-G.R. SP No. 64671 promulgated on April 22, 2002 and its Resolution promulgated on September 26, 2002, denying the motion for reconsideration of petitioner Civil Service Commission, National Capital Region (CSC-NCR).   The Decision of the Court of Appeals annulled and set aside Resolutions Nos. 001826 and 010315 of the Civil Service Commission.           The antecedents[1] of the case are as follows:

 On September 1, 1998, the Office of the Vice President of

the Republic of the Philippines issued an original and permanent appointment[2] for the position of Executive Assistant IV to respondent Ranulfo P. Albao.  Respondent was then a contractual employee at said Office.[3]  

 In a letter[4] dated September 28, 1998 addressed to the

Director of the Civil Service Commission Field Office,Manila, the Office of the Vice President requested the retrieval of the said appointment paper.  Instead of heeding the request, petitioner CSC-NCR disapproved the appointment.

 On October 5, 1998, petitioner issued an Order[5] holding that

it has found, after a fact-finding investigation, that a prima facie case exists against respondent Albao for Dishonesty and Falsification of Official Documents, committed as follows:

 1.                                                      That in support of his permanent appointment

as Executive Assistant IV, in the Office of the Vice-President, he stated in his Personal Data Sheet (PDS) accomplished on July 1, 1998 that he took and passed the Assistant Electrical Engineer Examination held on October 15 and 16, 1988 with a rating of 71.64%;

 2.                                                      To support his claim, he submitted a Report of

Rating showing he obtained a rating of 71.64% during the aforesaid Assistant Electrical Engineering Examination, all purportedly issued by the Professional Regulation Commission (PRC); and

 3.                                                      That the Professional Regulation Commission

(PRC) has informed CSC-NCR that  the name Ranulfo P. Albao does not appear in the Table of  Results and Masterlists of examinees of the Board of Electrical Engineering which contain the names of those who took the Assistant Electrical Engineer Examination given in October, 1988;  and

 4.                                                      That the examinee number appearing in his

Report of Rating is assigned to one Bienvenido Aniño, Jr.[6]

 

 After filing his Answer, respondent Albao filed on February

18, 1999 an “Urgent Motion to Resolve” the issue of whether or not the Civil Service Commission has original jurisdiction over the administrative case.   Respondent contended that the Commission has no jurisdiction over the same for the following reasons:

 (1)                               The permanent appointment issued to him never

became effective, even if it was later disapproved, because he never assumed such position in the first place.

 Moreover, he is already out of government service since he

resigned from his position effective at the closing hour of October 30, 1998.

 (2)                               As he is no longer with the civil service, the

Commission has no disciplinary jurisdiction over him as a private person.

(3)                               While it is true that the Commission has original disciplinary jurisdiction over all its officials and employees and cases involving civil service examination anomalies or irregularities (Sec. 28, Omnibus Rules[7] of 1991), as well as over sworn complaints directly filed before it against any other official or employee (Sec. 29, Omnibus Rules of 1991), the administrative case commenced against him did not fall under any of those instances.

 

          (4)     Since the Commission has no jurisdiction to institute the administrative case, it cannot delegate the same to the CSC-NCR.

 

On August 11, 2000, the Civil Service Commission rendered Resolution No. 001826, the dispositive portion of which reads:

 WHEREFORE, the Commission hereby rules that the Civil

Service Commission - National Capital Region has jurisdiction over disciplinary cases against employees of agencies, local or national for offenses committed within its geographical area.[8]

  

Respondent filed a motion for reconsideration, which was denied by the Civil Service Commission onFebruary 1, 2001, in Resolution No. 010315, thus:

  

WHEREFORE, the instant Motion for Reconsideration is hereby DENIED.  The Civil Service Commission - National Capital Region is hereby ordered to continue with the formal investigation of Ranulfo Albao.[9]

  

Respondent filed a petition for review before the Court of Appeals alleging that the Civil Service Commission committed grave abuse of discretion in issuing the said Resolutions.

 The Court of Appeals found merit in the petition.  It  held that

based on  Executive  Order No. 292, otherwise known as the Administrative Code of 1987, particularly  Section 12 (11),  Section 47 (1), (2) and Section 48,  Title 1 (A),  Book V thereof,  the CSC-NCR does not have jurisdiction to investigate and decide the case of respondent.   Consequently, the CSC-NCR exceeded its authority in initiating the administrative case against him.

  

The dispositive portion of the Decision of the Court of Appeals, dated April 22, 2002, reads:

 WHEREFORE, the Petition is hereby GRANTED, and as a

consequence, Resolution Nos. 001826 and 010315, dated August

11, 2000, and February 1, 2001, respectively, of the Civil Service Commission, are hereby ANNULLED and SET ASIDE. No costs. 

SO ORDERED.[10]  

 

The motion for reconsideration filed by petitioner was  denied by the Court of Appeals in a Resolution promulgated on September 26, 2002.

 Hence, this petition. Petitioner raises the following issues: 1.                               WHETHER OR NOT THE COURT OF APPEALS ERRED IN

FINDING THAT CSC-NCR EXCEEDED ITS JURISDICTION WHEN IT INSTITUTED THE ADMINISTRATIVE PROCEEDINGS AGAINST HEREIN RESPONDENT.

 2.                               WHETHER OR NOT THE COURT OF APPEALS ERRED IN

FINDING THAT THE POWER CONFERRED UPON THE PETITIONER TO HEAR AND DECIDE ADMINISTRATIVE CASES DOES NOT INCLUDE THE POWER TO ITSELF INITIATE AND PROSECUTE SAID CASES.[11]

  

The main issue in this case is whether or not the Civil Service Commission has original jurisdiction to institute the instant administrative case against respondent Albao through its regional office, the CSC-NCR.

  Petitioner argues that as the central personnel agency of

the government, it is expressly conferred the power and authority to initiate the proceedings herein involved against a public official and employee.  It asserts that such authority is contained in Section 12 (11), (16) in relation to Section 16 (15 [c]), Title 1(A), Book V of Executive Order No. 292, thus:  

Section 12.  Powers and Functions --  The Commission shall have the following powers and functions:  

 . . .

 (11)           Hear and decide administrative cases

instituted by or brought before it directly or on appeal, including contested appointments, and review decisions and actions  of  its offices and of the agencies attached to it. . . .[12]

                                        . . . 

(16)                       Delegate authority for the performance of any function to departments, agencies and offices where such function may be effectively performed;

 . . .

 Sec. 16.  Offices in the Commission. --  The Commission

shall have the following offices:. . .

 (15)        The Regional and Field Offices.-- . . . . Each Regional

Office shall have the following functions: 

. . . 

(c)    Perform such other functions as may be delegated by the Commission.

   

Petitioner contends that Section 12 (11) above categorically states that the Commission has the power “to hear and decide administrative cases instituted by or brought before it directly or on appeal.”[13] As such, when the Commission, in the course of the performance of its official and other duties, comes to know of any transgression committed by a government employee, it can initiate the necessary proceedings. In this case, it initiated the administrative proceedings against respondent after the discovery of the latter’s spurious eligibility. Hence, petitioner contends that the Court of Appeals erred in ruling that

it exceeded its jurisdiction in instituting the administrative case against respondent.

 Settled is the rule that jurisdiction is conferred only by the

Constitution or the law.[14]  Republic v. Court of Appeals[15] also enunciated  that only a statute can confer jurisdiction on courts and administrative agencies.

 Article IX-B, Section 3 of the Constitution declares the Civil

Service Commission as the central personnel agency of the Government, thus:

  Section 3.  The Civil Service Commission, as the central

personnel agency of the Government, shall establish a career service and adopt measures to promote morale, efficiency, integrity, responsiveness, progressiveness, and courtesy in the civil service.  It shall strengthen the merit and rewards system, integrate all human resources development programs for all levels and ranks, and institutionalize a management climate conducive to public accountability.  It shall submit to the President and the Congress an annual report on its personnel programs.  

  

 

Section 12, Title 1 (A), Book V of EO No. 292 enumerates the powers and functions of the Civil Service Commission, one of which is its quasi-judicial function under paragraph 11, which states:

 Section 12.  Powers and Functions --  The Commission shall

have the following powers and functions:   

. . . 

(11)Hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments, and review decisions and actions  of  its offices and of the agencies attached to it. . . .[16] 

 

   Section 47, Title 1 (A), Book V of EO No. 292, on the other

hand, provides, as follows:  

SEC. 47.  Disciplinary Jurisdiction.—(1) The Commission shall decide upon appeal all administrative disciplinary casesinvolving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days’ salary, demotion in rank or salary or transfer, removal or dismissal from office.  A complaint may be filed directly with the Commission by a private citizen against a government official or employee in which case it may hear and decide the case or it may deputize any department or agency or official or group of officials to conduct the investigation.   The results of the investigation shall be submitted to the Commission with recommendation as to the penalty to be imposed or other action to be taken.

 (2) The Secretaries and heads of agencies and

instrumentalities, provinces, cities and municipalities shall have jurisdiction to investigate and decide matters involving disciplinary action against officers and employees under their jurisdiction.  Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days’ salary.   In case the decision rendered by a bureau or office head is appealable to the Commission, the same may be initially appealed to the department and finally to the Commission and pending appeal, the same shall be executory except when the penalty is removal, in which case the same shall be executory only after confirmation by the Secretary concerned.[17]

  

Furthermore, Section 48, Title 1(A), Book V of EO No. 292   provides for the procedure in administrative cases against non-presidential appointees, thus:

 SEC. 48.  Procedure in Administrative Cases Against Non-

Presidential Appointees. -– (1) Administrative proceedings may be commenced against a subordinate officer or employee by the Secretary or head of office of equivalent rank, or head of local

government, or chiefs of agencies, or regional directors, or upon sworn, written complaint of any other person.

  

Respondent Albao was a contractual employee in the Office of the Vice President before his appointment to a permanent position, which appointment was, however, requested to be retrieved by the Office of the Vice President and at the same time disapproved by the Civil Service Commission.

 Pursuant to Section 47 (1), (2) and Section 48 above, it is the

Vice President of the Philippines, as head of office, who is vested with jurisdiction to commence disciplinary action against respondent Albao.

 Nevertheless, this Court does not agree that petitioner is

helpless to act directly and motu proprio, on the alleged acts of dishonesty and falsification of official document committed by respondent in connection with his appointment to a permanent position in the Office of the Vice President.

  It is true that Section 47 (2), Title 1 (A), Book V of EO No.

292 gives the heads of government offices originaldisciplinary jurisdiction over their own subordinates.  Their decisions shall be final in case the penalty imposed is suspension for not more than thirty days or fine in an amount not exceeding thirty days’ salary.  It is only when the penalty imposed exceeds the aforementioned penalties that an appeal may be brought before the Civil Service Commission which has appellate jurisdiction over the same in accordance with Section 47 (1)  Title 1(A), Book V of EO No. 292, thus:  

 SEC. 47.  Disciplinary Jurisdiction.—(1) The Commission

shall decide upon appeal all administrative disciplinary casesinvolving the imposition of a penalty of suspension for more than thirty days, or fine in an amount exceeding thirty days’ salary, demotion in rank or salary or transfer, removal or dismissal from office. . . . [18]

  The present case, however, partakes of an act by petitioner

to protect the integrity of the civil service system, and does not fall under the provision on disciplinary actions under Sec. 47.  It falls under the provisions of Sec. 12, par. 11, on administrative cases instituted by it directly.  This is an integral part of its duty, authority and power to administer the civil service system and protect its integrity, as provided in Article IX-B, Sec. 3 of the Constitution, by removing from its list of eligibles those who falsified their qualifications.  This is to be distinguished from ordinary proceedings intended to discipline a bona fide member of the system, for acts or omissions that constitute violations of the law or the rules of the service.

 WHEREFORE, the petition is GRANTED and the Decision of

the Court of Appeals in CA-G.R. SP No. 64671 and its Resolution promulgated on September 26, 2002 are REVERSED and SET ASIDE and petitioner is declared vested with the power to institute the administrative proceedings against respondent for alleged falsification of eligibility.

 No costs. SO ORDERED. 

  

     ADOLFO S. AZCUNA Associate Justice

  

WE CONCUR:  

HILARIO G. DAVIDE JR.Chief Justice

  

REYNATO S. PUNOAssociate Justice

   

ARTEMIO V. PANGANIBANAssociate Justice

LEONARDO A. QUISUMBINGAssociate Justice

CONSUELO YNARES-SANTIAGOAssociate Justice

 

ANGELINA SANDOVAL-GUTIERREZAssociate Justice

  

 

ANTONIO T. CARPIOAssociate Justice

  

 

MA. ALICIA AUSTRIA-MARTINEZAssociate Justice

  

RENATO C. CORONAAssociate Justice

   

CONCHITA CARPIO MORALESAssociate Justice

  

 

ROMEO J. CALLEJO, SR.Associate Justice

  

  

DANTE O. TINGAAssociate Justice

MINITA V. CHICO-NAZARIOAssociate Justice

  

 CANCIO C. GARCIAAssociate Justice

 

  

CERTIFICATION 

        Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.  

                                                                                                                                                                                                                                                HILARIO G. DAVIDE, JR.                                                                                                                                                                                                                                                                                                                                                                                             Chief Justice

HILARIO G. DAVIDE JR.Chief Justice

  

   

  

   

  

 

[1]               CA Decision, Rollo, pp. 25-26.[2]               Annex “D,”  CA Rollo, p. 25.[3]               Resolution No. 001826, CA Rollo, p. 15.[4]               Annex “C,” CA Rollo, p. 24.[5]               Annex “E,”  CA Rollo, p. 26.[6]               Ibid.

[7]               Omnibus Rules Implementing Book V of Executive Order No, 292 and Other Pertinent Civil Service Laws.

[8]               CA Rollo, p, 17.[9]               Id. at  23.[10]             Rollo, p. 30.[11]             Id. at 15-16.[12]             Emphasis supplied.[13]             Emphasis supplied.[14]             Pimentel v. Commission on Elections, Nos. 53581-83, December 19, 1980, 101

SCRA 769, 777.[15]             G.R. No. 122256, October 30, 1996, 263 SCRA 758, 764.[16]             Emphasis supplied.[17]             Emphasis supplied.[18]             Emphasis supplied.

   

FIRST DIVISION  

FAR EAST BANK AND TRUST             GR No. 129130COMPANY,                                      Petitioner,           Present:                                                                              DAVIDE, JR., C.J. (Chairman),                                                                             QUISUMBING,                                                                             YNARES-SANTIAGO,                                                                             CARPIO, and                   - versus -                                          AZCUNA, JJ.                                                                     Promulgated:COURT OF APPEALS, COURT OF                          

TAX APPEALS and COMMISSIONER            December 9, 2005OF INTERNAL REVENUE,                                                                  Respondents.               x ---------------------------------------------------------------------------------------- x 

DECISION 

AZCUNA, J.:

 

This is a Petition for Review on Certiorari assailing the

decision of the Court of Appeals (CA) dated May 7, 1997 in CA-

G.R. SP No. 41666.

 

The CA affirmed in toto the decision of the Court of Tax

Appeals (CTA) dated January 24, 1996 and its resolution of July

31, 1996, dismissing petitioner Far East Bank and Trust

Company’s claim for refund of excess creditable withholding

taxes in the aggregate amount of Seven Hundred Fifty-Five

Thousand Seven Hundred and Fifteen Pesos (P755,715) allegedly

paid and remitted to the Bureau of Internal Revenue (BIR)

sometime in 1990 and 1991.

 

The antecedent facts are as follows:             Petitioner is a domestic banking corporation duly organized and existing under and by virtue of Philippine laws. In the early part of 1992, the Cavite Development Bank [CDB], also a domestic banking corporation, was merged with Petitioner with the latter as its surviving entity [under] the merger. Petitioner being the surviving entity[, it] acquired all [the] assets of CDB.

             During the period from 1990 to 1991, CDB sold some acquired assets in the course of which it allegedly withheld the

creditable tax from the sales proceeds which amounted to P755,715.00.             In said years, CDB filed income tax returns which reflected that CDB incurred negative taxable income or losses for both years. Since there was no tax against which to credit or offset the taxes withheld by CDB, the result was that CDB, according to petitioner, had excess creditable withholding tax.

             Thus, petitioner, being the surviving entity of the merger, filed this Petition for Review after its administrative claim for refund was not acted upon.[1]

 

In denying petitioner’s claim, the CA held that the evidence

presented by petitioner consisting of (1) confirmation receipts,

payment orders, and official receipts issued by the Central Bank

and the BIR with CDB as the payor; [2] (2) Income Tax Returns for

1990 and 1991 with attached financial statements filed by

petitioner with the BIR;[3] and, (3) a list prepared by the

Accounting Department of petitioner purportedly showing the

CDB schedule of creditable withholding tax applied for refund for

1990 and 1991,[4] all failed to clearly establish that the taxes

arising from the sale of its acquired assets sometime in 1990 and

1991 were properly withheld and remitted to the BIR. The CA

likewise ruled that it was incumbent upon petitioner to present

BIR Form No. 1743.1 as required under Revenue Regulation 6-85

to conclusively prove its right to the refund. It held that

petitioner’s failure to do so was fatal to its cause.

 

Hence, this Petition.

 

Petitioner anchors its arguments on the following grounds: 1.         THE DECISION OF MAY 7,1997 WHEREBY RESPONDENT

CA DISMISSED PETITIONER’S APPEAL, AND RESPONDENT

CTA’S DECISION DATED JANUARY 24, 1996 AND RESOLUTION OF JULY 31,1996, ARE NOT BASED ON THE FACTS AND THE LAW.

 2.         PETITIONER HAS ADDUCED EVIDENCE A QUO WHICH

SUFFICIENTLY AND SUBSTANTIALLY ESTABLISH[ES] THE FACT THAT THE CREDITABLE WITHHOLDING TAX ON THE SALE OF ACQUIRED ASSETS WAS WITHHELD AND THEN REMITTED TO THE BUREAU OF INTERNAL REVENUE; AND,

 3.         THE DISMISSAL OF THE CLAIM FOR REFUND BEFORE

RESPONDENT CTA ARISES FROM AN UNDULY STRICT APPLICATION OF THE REGULATIONS WHICH IS NOT WARRANTED IN VIEW OF THE CLEAR PROOFS ADDUCED BY PETITIONER WHICH ESTABLISH THE BASIS FOR THE RELIEFS SOUGHT.[5]

  

Petitioner contends that the confirmation receipts presented

by it constitute “competent and irrefutable proof of the fact that

taxes were withheld and remitted to the BIR.”[6]  It is admitted

that the taxes reflected on the confirmation receipts as well as on

the payment orders and official receipts issued by the BIR were

withheld by CDB. Petitioner maintains that these pertained to the

proceeds of the sale of its acquired assets in 1990 and 1991.

According to petitioner, CDB took the initiative of paying the

withholding tax accruing thereon notwithstanding the fact that it

was the recipient of the income, to ensure that the correct taxes

were remitted to the BIR. Petitioner further argues that the list

prepared by its Accounting Department identifying the persons to

whom the various sales were made and indicating the amount of

taxes withheld for each transaction should have been given more

weight by the court a quo as this document, when taken with the

tax withholding forms, indubitably establishes the fact of

withholding and the basis for the claims for refund.[7] Considering,

therefore, that petitioner had adequately established by other

evidence the basis for the grant of the claim for tax refund,

petitioner asserts that its failure to submit BIR Form No. 1743.1 is

not fatal to its cause.                       

 

The crucial issue in this case turns on a question of fact, that

is, whether petitioner adduced sufficient evidence to prove its

entitlement to a refund.

 

The findings of fact of the CTA, a special court exercising

particular expertise on the subject of tax, are generally regarded

as final, binding and conclusive[8] upon this Court, especially if

these are substantially similar to the findings of the CA which is

normally the final arbiter of questions of fact.[9] The findings shall

not be reviewed nor disturbed on appeal[10] unless a party can

show that these are not supported by evidence,[11] or when the

judgment is premised on a misapprehension of facts, or when the

lower courts failed to notice certain relevant facts which if

considered would justify a different conclusion.[12]

 

Petitioner has not sufficiently presented a case for the

application of an exception from the rule.

 

Firstly, the CA cannot be faulted for not lending credence to

petitioner’s contention that it withheld, for its own account, the

creditable withholding taxes on the sale of its acquired assets. In

our withholding tax system, possession of the amount that is used

to settle the tax liability is acquired by the payor as the

withholding agent of the government.[13] For this reason, the Tax

Code imposes, among others, certain obligations upon the

withholding agent to monitor its compliance with this duty. These

include the filing of the quarterly withholding tax returns,[14]the

submission to the payee, in respect of his or its receipts during

the calendar quarter or year, of a written statement showing the

income or other payments made by the withholding agent during

such quarter or year and the amount of the tax deducted and

withheld therefrom,[15] and the filing with the BIR of a

reconciliation statement of quarterly payments and a list of

payees and income payments.[16] Codal provisions on withholding

tax are mandatory and must be complied with by the withholding

agent. This is significant in that a taxpayer cannot be compelled

to answer for the non-performance by the withholding agent of its

legal duty to withhold unless there is collusion or bad faith.  In

addition, the former could not be deemed to have evaded the tax

had the withholding agent performed its duty. [17]

 

On the other hand, it is incumbent upon the payee to reflect

in his or its own return the income upon which any creditable tax

is required to be withheld at the source. Only when there is

an excess of the amount of tax so withheld over the tax due on

the payee’s return can a refund become possible.

 

A taxpayer must thus do two things to be able to

successfully make a claim for the tax refund: (a) declare the

income payments it received as part of its gross income and (b)

establish the fact of withholding.[18] On this score, the relevant

revenue regulation provides as follows: 

 Section 10.  Claims for tax credit or refund. --  Claims for

tax credit or refund of income tax deducted and withheld on income payments shall be given due course only when it is shown on the return that the income payment received was declared as part of the gross income and the fact of withholding

is established by a copy of the statement duly issued by the payor to the payee (BIR Form No. 1743.1) showing the amount paid and the amount of tax withheld therefrom.[19]

 

As mentioned, petitioner relies heavily on the confirmation

receipts with the corresponding official receipts and payment

orders to support its case. Standing alone, however, these

documents only establish that CDB withheld certain amounts in

1990 and 1991. It does not follow that the payments reflected in

the confirmation receipts relate to the creditable withholding

taxes arising from the sale of the acquired properties. The claim

that CDB had excess creditable withholding taxes can only be

upheld if it were clearly and positively shown that the amounts on

the various confirmation receipts were the amounts withheld by

virtue of the sale of the acquired assets. On this point, the CA

correctly pronounced:              The confirmation receipts alone, by themselves, will not suffice to prove that the taxes reflected in the income tax returns are the same taxes withheld from CDB’s income payments from the sale of its acquired assets. This is because a cursory examination of the said Confirmation Receipts, Payment Orders and Official Receipts will show that what are reflected therein are merely the names of the payors and the amount of tax. The nature of the tax paid, or at the very least, the income payments from which the taxes paid were withheld are not reflected therein. If these are the only entries that are found on these proferred documents, We cannot begrudge the Respondent Court from nurturing veritable doubts on the nature and identity of the taxes withheld, when it declared, in part, in its Decision (Annex “A” of the Petition) that, ‘It can not well be said that the amounts paid and remitted to the BIR were for CDB’s account and not for the other possible payees of withholding taxes which CDB may also be liable to remit as a withholding agent x x x . [20]

  

Petitioner, apparently aware of the foregoing deficiency,

offered into evidence a CDB Schedule of Creditable Withholding

Tax for the period 1990 to 1991[21] prepared by petitioner’s

representative to show that the taxes CDB withheld did, indeed,

pertain to the taxes accruing on the sale of the acquired assets.

The CA, however, found the same to be “self-serving and

unverifiable” and therefore “barren of evidentiary weight.”[22]  We

accord this finding on an issue of fact the highest respect and we

will not set it aside lightly.

 

It bears emphasis that questions on whether certain items of

evidence should be accorded probative value or weight, or

rejected as feeble or spurious, or whether the proofs on one side

or the other are clear and convincing and adequate to establish a

proposition in issue, are without doubt questions of fact.  This is

true regardless of whether the body of proofs presented by a

party, weighed and analyzed in relation to contrary evidence

submitted by the adverse party, may be said to be strong, clear

and convincing.  Whether certain documents presented by one

side should be accorded full faith and credit in the face of protests

as to their spurious character by the other side; whether

inconsistencies in the body of proofs of a party are of such gravity

as to justify refusing to give said proofs weight—all these are

issues of fact. Questions like these are not reviewable by us. As a

rule, we confine our review of cases decided by the CA only to

questions of law raised in the petition and therein distinctly set

forth.[23] We note that without the CDB Schedule, no evidence

links the Confirmation Receipts, Payment Orders and Official

Receipts to the taxes allegedly withheld by CDB on the sale of the

acquired assets.

 

As to the annual income tax returns for 1990 and

1991 [24] presented by petitioner, we must stress that the mere

admission into the records of these returns does not

automatically make their contents or entries undisputed and

binding facts. Mere allegations by petitioner of the figures in its

returns are not a sufficient proof of the amount of its refund

entitlement.  They do not even constitute evidence adverse to

respondent, against whom these are being presented.[25] 

 

Furthermore, we note that in the proceedings below,

respondent Commissioner of Internal Revenue (CIR) raised the

fact that there was a discrepancy in the excess creditable

withholding tax reflected in the returns with the amounts sought

to be refunded by petitioner. Whereas the 1990 and 1991 Income

Tax Returns indicated that CDB had excess creditable withholding

tax in the amounts of P535,310 and P357,511, respectively, the

amounts claimed by petitioner as indicated in the CDB Schedule

were P512,940.50 for 1990 and P242,774.50 for 1991.[26] The

records are bereft of any explanation for such discrepancy. This

further undermines petitioner’s contentions, and its reliance on

the CDB Schedule.

 

Petitioner also asserts that the confusion or difficulty in the

implementation of Revenue Memorandum Circular 7-90[27] was the

reason why CDB took upon itself the task of withholding the taxes

arising from the sale, to ensure accuracy. Assuming this were

true, CDB should have, nevertheless, accomplished the necessary

returns to clearly identify the nature of the payments made and

file the same with the BIR. Section 2 of the circular clearly

provides that the amount of withholding tax paid by a corporation

to the BIR during the quarter on sales or exchanges of property

and which are creditable against the corporation’s tax liability are

evidenced by Confirmation/Official Receipts and covered by BIR

Form Nos. 1743W and 1743-B. On the other hand, Revenue

Regulation 6-85 states that BIR Form No. 1743.1 establishes the

fact of withholding. Since no competent evidence was adduced by

petitioner, the failure to offer these returns as evidence of the

amount of petitioner’s entitlement during the trial phase of this

case is fatal to its cause.  For its negligence, petitioner “cannot be

allowed to seek refuge in a liberal application of the [r]ules.”[28] 

The liberal interpretation and application of rules apply only in

proper cases of demonstrable merit and under justifiable causes

and circumstances.[29]

 

We must emphasize that tax refunds, like tax exemptions,

are construed strictly against the taxpayer and liberally in favor of

the taxing authority.[30]  In the event, petitioner has not met its

burden of proof in establishing the factual basis for its claim for

refund and we find no reason to disturb the ruling of the lower

courts.

 

WHEREFORE, the petition is DENIED and the Decision of

the Court of Appeals dated May 7, 1997 in CA-G.R. SP No.

41666 is AFFIRMED. No pronouncement as to costs.   

 

SO ORDERED.

 

 ADOLFO S. AZCUNA

    Associate Justice

  WE CONCUR:

    

HILARIO G. DAVIDE, JR.Chief Justice

Chairman   

 LEONARDO A. QUISUMBING   CONSUELO YNARES-SANTIAGO

Associate Justice                                             Associate Justice

    

ANTONIO T. CARPIOAssociate Justice

    

   

CERTIFICATION 

          Pursuant to Section 13, Article VIII of the Constitution, it is

hereby certified that the conclusions in the above Decision were

reached in consultation before the case was assigned to the

writer of the opinion of the Court’s Division.   

HILARIO G. DAVIDE, JR.Chief Justice

 

 

 

[1]               CA Decision, Rollo, p. 9.[2]               Exhibit I, Records.[3]               Exhibits F and G, Records.[4]               Exhibit  H, Records.[5]               Rollo, pp. 25-26.[6]               Id. at p. 28.[7]               Rollo, pp. 31-32.[8]               Sea-land Service, Inc. v. CA, G.R. No. 122605, April 30, 2001, 357 SCRA 441.[9]               CIR v. CA, G.R. No. 108576, January 20, 1999, 301 SCRA 152, citing Binalay v.

Manalo, G.R. No. 92161, March 18, 1991, 195 SCRA 374.[10]             Republic v. IAC, G.R. No. 69344, April 26, 1991, 196 SCRA 335, 340.[11]             CIR v. Embroidery and Garments Industries (Phil.), Inc. , 364 Phil. 541, 546, (1999 ).[12]             BPI-Family Savings Bank, Inc. v. CA, G.R. No. 122480, April 12, 2000, 330 SCRA

507.[13]             CIR v. Solidbank, GR No. 148191, November 25 ,2003, 416  SCRA 436.[14]             Presidential Decree 1158 (1977), Section 51 (a).[15]             Id. Section 51 (c).[16]             Id. Section 51 (d).[17]             CIR v. CA, G.R. No. 108576, January 20, 1999, 301 SCRA 152.[18]             Calamba Steel Center, Inc. v. CIR, G.R. No. 151857, April 28, 2005, 457 SCRA 482.[19]             Revenue Regulation 6-85 (1985).[20]             CA Decision, Rollo, p. 14.[21]             Exhibit H, Records.[22]             CA Decision, Rollo, p. 15.

[23]             Paterno v. Paterno, G.R. No. 63680, March 23, 1990, 183 SCRA 630.[24]             Exhibits F and G, Records.[25]             Calamba Steel Center Inc. v. CIR, supra note 18, quoting Lagasca v. De Vera, 79

Phil. 376, 381 (1947), and Sambrano v. Red Line Transportation Co., Inc., 68 Phil. 652, 655 (1939).

[26]             Records, p. 91.[27]             Revenue Memorandum Circular 7-90 was issued by the Commissioner of Internal

Revenue on February 1, 1990. The regulation sought to clarify various revenue regulations which added certain sales and exchanges of real properties as income payments subject to the expanded withholding tax under Revenue Regulation 6-85. All other provisions of the latter, such as the procedure for claims for tax credit or refund, remained in force.

[28]             CIR v. A. Soriano Corp., 334 Phil. 965, 972 (1997).[29]             Norris v. Hon. Parentela Jr., 446 Phil. 462, 472 (2003).[30]             Paseo Realty & Development Corporation v. CA, G.R. No. 119286, October 13,

2004, 440 SCRA 235.

  

FIRST DIVISION  INTERNATIONAL BROADCASTING CORPORATION,

Petitioner,           - versus -                                          G.R. No. 148152 JOSE T. JALANDOON,                                       Respondent,                          x ------------------------------------------------ x  SECURITIES AND EXCHANGE                     G.R. No. 149450

COMMISSION,                                      Petitioner,           Present:                                                                              DAVIDE, JR., C.J. (Chairman),                                                                             QUISUMBING,                   - versus -                                          YNARES-SANTIAGO,                                                                             CARPIO, and                                                                                           AZCUNA, JJ. JOSE T. JALANDOON,                           Promulgated:                                      Respondent.                                                                             November 18, 2005x----------------------------------------------------------------------------------------x 

DECISION 

AZCUNA, J.: 

Before us are two consolidated petitions for review on certiorari of the Decision[1] of the Court of Appeals in CA-G.R. SP No. 62027 

promulgated on May 9, 2001, and its Resolution promulgated on July 20, 2001 denying the Motion for Reconsideration of petitioner Securities and Exchange Commission (SEC).  The Decision of the Court of Appeals  reversed and set aside the Order of the SEC  dated October 5, 2000 and  directed  SEC  to  decide SEC Case No. 12-96-5505, entitled  Jose T. Jalandoon v. International Broadcasting Corporation,  et al. 

 The antecedents[2] of the case are as follows: On April 3, 1996, Julius Raboca, the corporate secretary of 

International Broadcasting Corporation (IBC), caused the publication in the newspapers of a Notice, which,  among others,

enjoined all persons having any claim against IBC to present them to the Office of the Corporate Secretary within five  days from date of publication,  after which, no claim would be entertained.

 Respondent Jose T. Jalandoon, after reading the Notice,

wrote a letter to Raboca to make his claim of twenty percent (20%) of the shareholdings of IBC.  Raboca allegedly did nothing on the claim.

 In December 1996, Jalandoon filed with   SEC an Amended

Petition[3]  for Accounting, Reconstitution of Records, Mandamus, Nullification of Directors’ Election, Calling of Stockholders’ Meeting, and Damages against IBC and the members[4] of its Board of Directors.

 On February 10, 1997, IBC, et al., filed its Answer with

Counterclaims and, at the same time, moved for the dismissal of the case through its counsel, Cruz Enverga & Raboca.

 On June 2, 1997, the Office of the Government Corporate

Counsel (OGCC) made a verbal manifestation that it had known of the filing of the case “a few days ago and requested for extension of time to enter into preliminary conference.” Cruz Enverga & Raboca withdrew as counsel for IBC. 

During the preliminary conference on June 25, 1997, IBC, et al. were declared in default due to the failure of the OGCC’s lawyers to produce a Board Resolution authorizing them to appear in behalf of IBC, et. al.

 On July 2, 1997, the Presidential Commission on Good

Government (PCGG), filed a Special Appearance and Motion to Dismiss assailing SEC’s jurisdiction over the case on the ground that it is the Sandiganbayan that has sole and exclusive jurisdiction over the case involving IBC, as an acquired asset of the Republic of the Philippines.

 On July 3, 1997, the OGCC, in behalf of IBC, filed an  

Omnibus Motion, namely, a Motion for Reconsideration and/or To Lift Order of Default; a Motion to Nullify All Proceedings Taken after Declaration of Default; and a Motion to Dismiss. 

 On July 28, 1997, the SEC Hearing Officer issued an Omnibus

Order lifting the Order declaring IBC in default, denying the motion to nullify all proceedings after declaring IBC in default, and denying the motion to dismiss for lack of merit. 

 On the motion to dismiss, the SEC Hearing Officer ruled: 

The motion to dismiss cannot be sustained on the allegation that IBC was ceded to the government by Roberto S. Benedicto, over the claim of petitioner that he is owner of some shares of stocks in IBC. Whether said shares of stock are subject to sequestration or were sequestered shares, is best determined after trial on the merits. 

Also it cannot be argued that the real party in interest is the PCGG. 

IBC is an entity separate and distinct from the PCGG.  If ever, the PCGG (or the) government owns shares of stocks in IBC, it does so [in] its proprietary character, stepping down from the pedestal of its sovereign power, and engages into private ownership and contracts like an ordinary citizen, thus shedding off its sovereign immunity from suit.[5]

  IBC, et al. filed a motion for reconsideration of the Omnibus

Order insofar as it denied their motion to dismiss and to nullify the proceedings after declaration of default.  The SEC Hearing Officer denied it in an Order dated June 22, 1998.[6]

 

Pre-trial and trial ensued. Thereafter, the parties presented their respective evidence. The SEC Hearing Officer admitted the

exhibits formally offered in evidence by Jalandoon in an Order dated March 9, 2000. 

 In an Order dated July 25, 2000, the SEC Hearing Officer

admitted the exhibits formally offered in evidence by IBC, et al. and the case was considered  submitted for decision.  The parties were directed to submit their respective memoranda not later than 15 days from receipt of the Order.

 On August 9, 2000, Republic Act No. 8799, otherwise known

as the Securities Regulation Code, took effect. The Act transferred jurisdiction over intra-corporate disputes from SEC to the Regional Trial Courts.

 Anticipating the Code’s effectivity, the SEC earlier issued, on

August 1, 2000, the Guidelines on Intra-Corporate Cases Pending Before the SICD and the Commission En Banc of the Securities and Exchange Commission.

 On October 5, 2000, the SEC en banc issued an Order,[7] the

pertinent portions of which read: 

. . . 

The Commission now holds that the Republic, as the registered owner of 100% of the shares of IBC -13, is a real party in interest, because it stands to be benefited or injured by the judgment in the suit, or the party entitled to the avails of the suit.

 . . .

 . . . The petition failed to implead the Republic and is

therefore defective in form.  Nonetheless, the substantiality being plainly evident, such defect in form can and must be cured, otherwise, no final determination of the case can be had. The impleading of the Republic as party-respondent is thus in order.  And in accordance with the constitutional provisions and

jurisprudential declarations, the Republic must be accorded due process and given its day in court. 

 In view of the foregoing determination by the Commission,

there is still much left to be done before the case can reach the final disposition stage.  Considering the effectivity of the new Securities Regulation Code on August [9], 2000 and the Guidelines of the Commission, and further considering that the case is not yet ripe for final adjudication, the Commission no longer has any jurisdiction to continue to hear the case, receive pertinent pleadings thereto nor render a final judgment therein. 

Despite the loss of its jurisdiction and because the Commission   cannot render a final decision   based on the foregoing discussions on the defect of non-joinder of an indispensable party, the Commission is of the opinion that it must issue this last order, so that “the actual merits of the controversy may speedily be determined.”  To do otherwise would leave the case in limbo, a situation which the Commission, in the [interest] of justice, cannot allow. 

WHEREFORE, foregoing premises considered, and under the circumstances of the present case, the Republic of the Philippines, as represented by PCGG, is hereby ordered impleaded as party-respondent, copy of this decision shall be furnished the Office of the Solicitor General as counsel for the government.  The parties are directed to furnish the Solicitor General with copies of all the pertinent pleadings they have filed in the instant case within fifteen (15) days from their receipt hereof.  The Solicitor General is hereby directed to file its Comments and Answer to the petitioner’s claims within fifteen (15) days from its receipt of said pleadings.  And the petitioner is given a like period of time to file his response thereto.  Any and all pleadings required to be submitted after this Order is issued shall be filed before the court of proper jurisdiction as may be designated by the Supreme Court.             SO ORDERED. [8]

  

Respondent appealed the SEC Order to the Court of Appeals by filing a Petition for Certiorari and Mandamus With Very Urgent Application for the Issuance of a Writ of Preliminary Injunction and/or Temporary Restraining Order.

 In its Decision promulgated on May 9, 2001, the Court of

Appeals stated the main issue as: Did the Securities and Exchange Commission gravely abuse its discretion in refusing to decide the instant case and instead transferring the same to the regular courts? 

 The Court of Appeals held that SEC should decide the instant

case, thus: 

It is undisputed that per order dated July 28, 2000, (p. 382, rollo), petitioner’s (Jalandoon) case before the Commission was “now submitted for decision”.  Both parties therein, per records, duly submitted the required memorandum within fifteen (15) days from receipt of the order.  Clearly, therefore, at the time petitioner’s case was being heard and up to the time the same was submitted for decision, it was still governed by the REVISED RULES OF PROCEDURE IN THE SECURITIES AND EXHANGE COMMISSION adopted on August 1, 1989 as   amended, on April 26, 1993.  

 It must also be pointed out that the GUIDELINES which the

Commission issued pursuant to par. 5.2, Sec. 5, of  R.A. 8799, specifically  Sec. 2 thereof  provides  thus:    “The COMMISSION SHALL RETAIN JURISDICTION OVER PENDING INTRA-CORPORATE DISPUTES SUBMITTED FOR FINAL RESOLUTION [PRIOR TO THE EFFECTIVITY OF THE ACT] which shall be resolved within one (1) year from July 19, 2000.”   Since petitioner’s  case was submitted for final resolution on July 28, 2000 and since R.A. 8799 took effect  only on August 9, 2000, petitioner’s case should have remained within the jurisdiction of public respondent Commission and decided by it pursuant to the August 1, 1989 Rules of the Commission, as amended . . . .[9]

  

The dispositive portion of the Decision of the Court of Appeals reads: 

 Wherefore, foregoing premises considered, the petition

is hereby GIVEN DUE COURSE, and the challenged order of public respondent Commission hereby REVERSED and SET

ASIDE, and it is hereby DIRECTED to decide the case of  petitioner in accordance with its August 1, 1989 Rules, as amended, and based on the evidence duly offered and admitted.  No costs.

 SO ORDERED.[10]

  

SEC filed a Motion for Reconsideration of the Decision of the Court of Appeals, which was denied in a Resolution promulgated on July 20, 2001.

 Both SEC and IBC filed before this Court their respective

petitions for review on certiorari of the Decision of the Court of Appeals. SEC also sought a review of the Court of Appeals’ Resolution dated July 20, 2001, which denied its motion for reconsideration. Respondent Jalandoon moved for the consolidation of the two petitions, which was granted by the Court.

 The relevant issues raised by petitioners are: 1.                               Did the Court of  Appeals err in ordering  SEC

to decide the case filed by respondent Jalandoon, docketed as  SEC-SICD Case No. 12-96-5505?

 2.                               Does SEC have jurisdiction over respondent’s

claim of ownership or interest in IBC or is the determination of such ownership properly lodged with the Sandiganbayan in connection with Sandiganbayan Case No. 0034 for reversion, reconveyance, restitution, accounting and damages filed by the Republic/PCGG?

 3.                               Assuming arguendo that SEC has jurisdiction

over this case, was the case ripe for decision when Republic Act No. 8799 took effect on August 9, 2000, which transferred jurisdiction over intra-

corporate disputes from SEC to the Regional Trial Courts?

 4.                               Did SEC lose jurisdiction over the instant case

pursuant to Republic Act No. 8799?  Petitioner IBC, represented by the OGCC, contends that SEC

has no jurisdiction over the instant case since it involves the determination of the ownership of its company, which is the subject of Sandiganbayan Case No. 0034 for reversion, reconveyance, restitution, accounting and damages. IBC asserts that issues which arise from and are incidental to said sequestration case before the Sandiganbayan should be raised in the Sandiganbayan, citingPresidential Commission on Good Government v. Peña[11] and Republic of the Philippines v. Sandiganbayan.[12]

 We do not agree. As stated by SEC in its Order, the sequestration proceedings

over IBC are over.  The Sandiganbayan has ordered the transfer of IBC’s shares of stock in the name of the Republic of the Philippines. As ownership of IBC has been vested upon the Republic, the subject matter of the instant suit falls within the definition of intra-corporate controversy over which SEC had jurisdiction at the time this case was initiated.

 In a separate  petition[13] filed with us by Jalandoon  against  

PCGG, which sought to enjoin PCGG from proceeding with the scheduled public bidding of the assets of IBC on December 27,  1996,  PCGG  recognized the jurisdiction of  SEC over the instant case  when it agreed in a Joint  Motion  with Jalandoon  to refer the resolution of Jalandoon’s  claim over the  20% equity in IBC-13  to SEC.   The Joint Motion, in part, submitted:

. . .

 3.         That the claim of the petitioner over the 20% equity in  

IBC -13 shall be litigated in the Securities & Exchange Commission (SEC), and the release of the said 20% equity shall be conditioned upon the rendition of a final and executory judgment in favor of the person entitled thereto;  

4.         That in consideration for the immediate resolution of this case and the lifting of the Temporary Restraining Order, subject to the above paragraph No. 3, petitioner or his assigns shall be granted the right of first refusal to acquire an additional twenty (20%) percent of IBC equity at PCGG established floor price; provided that this shall be subject to the approval of the Committee on Privatization (COP).

 WHEREFORE, it is most respectfully prayed that this case

be dismissed and that the Temporary Restraining Order be immediately lifted and dissolved and the question on the claim of the petitioner over the 20% equity in IBC be referred to the Securities & Exchange Commission and that the parties be granted such other reliefs to which they may be entitled to law and equity.[14] 

  

On July 15, 1998, we issued a Resolution (Third Division) granting the said Joint Motion, thus:

 . . . The joint motion, dated March 17, 1998, filed by the

Presidential Commission on Good Government Chairman Magtanggol C. Gunigundo and petitioner Jose T. Jalandoon, assisted by their counsels, praying that this case be dismissed and that the temporary restraining order be lifted and dissolved and the question on the claim of petitioner over the 20% equity in IBC be referred to the Securities and Exchange Commission is GRANTED.[15] 

  

Next, petitioners contend that the Court of Appeals erred in directing  SEC to decide the case since it was not yet ripe for decision when Republic Act No. 8799 took effect.  Noted was paragraph 5.2, Section 5  of Republic Act No. 8799, which, in part,  provides that “[t]he Commission shall retain jurisdiction

over pending cases involving intra-corporate disputes submitted for final resolution which should be resolved within one (1) year from the enactment of this Code.”[16]  Petitioners, however, assert that although the SEC Hearing Officer in an Order dated July 28, 2000 considered the case submitted for decision even before the effectivity of Republic Act No. 8799, the SECen banc subsequently ordered on October 5, 2000 that the Republic of the Philippines be impleaded as party-respondent as an indispensable party in the case.  Hence, petitioners submit that since the Republic is yet to be heard, the case was not yet ripe for decision when   Republic Act No. 8799 took effect; therefore, SEC lost jurisdiction over the case. 

 We agree. The pertinent provision under Republic Act No. 8799 reads:

 

SEC. 5. Powers and Functions of the Commission . . . . 

. . . 

5.2.            The Commission’s jurisdiction over all cases enumerated under Section 5 of Presidential Decree No. 902-A is hereby transferred to the Courts of general jurisdiction or the appropriate Regional Trial Court:  Provided, That the Supreme Court  in the exercise of its authority may designate the Regional Trial Court branches that shall exercise jurisdiction over these cases.  The Commission shall retain jurisdiction over pending cases involving intra-corporate disputes submitted for final resolution which should be resolved within one (1) year from the enactment of this Code. . . . 

  

Moreover, the Guidelines on Intra-Corporate Cases Pending Before the SICD and the Commission En Banc of the Securities and Exchange Commission issued by SEC on August 1, 2000 provides:

 

            Section 3.  The Commission shall retain jurisdiction over pending intra-corporate disputes submitted for final resolution which shall be resolved within one (1) year from July 19, 2000, the enactment of the The Securities Regulation Code. 

. . . 

Section 5.  All cases already decided by the Securities Investigation and Clearing Department (SICD) may be elevated to the Commission en banc on appeal provided that the appeal is perfected on or before August 8, 2000.             No appeal shall be accepted by the Commission thereafter. 

Section 6.  Subject to any circular that may be issued by the Supreme Court on the matter, all cases over which the Commission has not retained jurisdiction under the Securities Regulation Code shall, upon its effectivity on August 9, 2000, be transferred to the Regional Trial Courts.  

Considering that SEC, in its Order dated October 5, 2000,   ordered motu proprio that the Republic of the Philippines, as the registered owner of 100% of the shares of IBC, be  impleaded as party-respondent as an indispensable party in this case, and  directed the parties to furnish the Solicitor General, as counsel of the Government,  with copies of all pertinent pleadings which they have filed within 15 days from receipt of said Order and also directed the Solicitor General to file its  Comments and Answer to the claims within 15 days from receipt of the pleadings, the case was clearly  not  yet ripe for final resolution  at the time Republic Act No. 8799 took effect on August 9, 2000.  

 The SEC Order of October 5, 2000 overruled the SEC Hearing

Officer’s Order of July 28, 2000 for the reason that the Republic of the Philippines, as an indispensable party, still has to be heard, through its counsel, the Office of the Solicitor General.

 

Stated otherwise, SEC Case No. 12-96-5505, as of August 9, 2000, was not a pending case submitted for final resolution, since the same could not be decided by SEC without including a new party and affording said party the opportunity to be heard, thereby requiring further proceedings.

 Finally, the fact that Sec. 5.2 of Republic Act No. 8799 states

that the pending cases over which SEC shall retain jurisdiction “should be resolved within one (1) year from the enactment of this Code,” confirms the interpretation that it refers to cases where no further proceedings are required for their final resolution.

 WHEREFORE, the petitions are GRANTED and the Decision

of the Court of Appeals in CA-G.R. SP No. 62027 and its Resolution promulgated on July 20, 2001 are REVERSED and SET ASIDE, and the Order of the Securities and Exchange Commission in SEC Case No.  12-96-5505  dated  October 5, 2000  is  REINSTATED.   The   SEC

  

Case is hereby ordered TRANSFERRED to the Regional Trial Court of Makati City pursuant to Republic Act No. 8799.

 No costs. SO ORDERED.  

ADOLFO S. AZCUNA    Associate Justice

  

 WE CONCUR:

    

HILARIO G. DAVIDE, JR.Chief Justice

Chairman    

LEONARDO A. QUISUMBING   CONSUELO YNARES-SANTIAGOAssociate Justice                                             Associate

Justice    

ANTONIO T. CARPIOAssociate Justice

  

CERTIFICATION 

          Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the cases were assigned to the writer of the opinion of the Court’s Division.   

HILARIO G. DAVIDE, JR.Chief Justice

     

    

[1]               Penned by Justice Jose L. Sabio, Jr., and concurred in by Justices Ma. Alicia Austria-Martinez  and Hilarion L. Aquino of the Third Division.[2]               SEC Order, Rollo (G.R. No. 148152), pp. 60-61; CA Decision, Rollo (G.R. No.

148152), pp. 51-53.   [3]               Docketed as SEC Case No. 12-96-5505.[4]               Namely, Tomas B. Gomez  III,   Emmanuel T. Santos, Emiliano D. Templo, Cielito

Del Mundo,  Leonardo  Q. Belen,   Julius N. Raboca.[5]               Rollo (G.R. No. 148152), p. 451.[6]               Id. at  467.[7]               Id. at 59.[8]               Id. at  71, 73-74.[9]               Id. at 56.[10]             Id. at  56-57.          [11]             G.R. No. L-77663, April 12, 1988, 159 SCRA 556.[12]             G.R. No. 88537, April 17, 1990, 184 SCRA 382.[13]             G.R. No. 127399,  Jalandoon v. Presidential Commission on Good Government, et. al.[14]             Supra, note 5, at  377-378.  Emphasis supplied. [15]             Id. at 380.  Emphasis supplied.

[16]             Emphasis supplied.

    

FIRST DIVISION  PHILEX GOLD PHILIPPINES,               G.R. No. 149758INC., GERARDO H. BRIMO,LEONARD  P. JOSEF, and                      Present:JOSE B. ANIEVAS,

Petitioners,                                                                             DAVIDE, C.J. (Chairman),                                                                             QUISUMBING,                                                                             YNARES-SANTIAGO,                   - versus -                                          CARPIO, and                                                                             AZCUNA, J.J.                                                                            PHILEX BULAWAN SUPERVISORS     Promulgated:UNION, represented by its President,JOSE D. PAMPLIEGA,                                                August 25, 2005                             Respondents.x-----------------------------------------------------------------------------------------x  

DECISION 

AZCUNA, J.:  

This is a petition for review on certiorari, with prayer for the issuance of a temporary restraining and/or statusquo order,

assailing the Decision of the Court of Appeals in CA-G.R. SP No. 57701 promulgated on April 23, 2001and its Resolution, promulgated on August 29, 2001, denying petitioner’s Motion for Reconsideration.  The said Decision of the Court of Appeals reversed and set aside the Resolution dated February 29, 2000 of the Voluntary Arbitrator and reinstated the Voluntary Arbitrator’s Resolution dated January 14, 2000 with modification.

 The antecedents[1] of the case are as follows: Respondent  Philex Bulawan Supervisors Union  (“Philex

Supervisors Union”) is the sole and exclusive bargaining representative of all supervisors of petitioner Philex Gold Philippines, Incorporated (“Philex Gold”), a gold mining company with mine site at Vista Alegre, Nabulao, Sipalay, Negros Occidental.  On July 2, 1997, respondent union entered into a Collective Bargaining Agreement (CBA) with petitioner company effective August 1, 1996 up to July 31, 2001.

 It appears, however, that after the signing of the CBA, Philex

Gold made the employees of Philex Mining Corporation from Padcal, Tuba, Benguet, its regular supervisory employees effective July 1, 1997.  Some of the so-called “ex-Padcal” supervisors began to work in the Bulawan mines of Philex Mining Corporation in 1992 as ordinary rank-and-file workers. When Philex Gold was incorporated in 1996 to exclusively handle gold mining, it took over the operations of the Bulawan mines and absorbed some of the  ex-Padcal employees.

 Philex Gold conveyed to Philex Supervisors Union the status

of the  ex-Padcal supervisors in November 1997 upon the insistence of the union to be informed of their standing.

 It turned out that the ex-Padcal supervisors were maintained

under a confidential payroll, receiving a different set of benefits

and higher salaries compared to the locally hired supervisors of similar rank and classification doing parallel duties and functions.

 Philex Supervisors Union filed a Complaint[2] against Philex

Gold with the National Conciliation and Mediation Board (NCMB), Bacolod City, for the payment of wage differential and damages and the rectification of the discriminatory salary structure and benefits between the ex-Padcal supervisors and the local-hires.

 After the submission of the parties’ respective position

papers and rejoinders/supplemental position papers, the Voluntary Arbitrator rendered a decision on January 14, 2000 in favor of respondent Union.

 

As regards the supervisors’ wage rates[3] which was submitted by Philex Gold, the Voluntary Arbitrator held:

 .  .  .

 The Wage rates of the employers as classified and classed

by them are not also reasonable and undiscriminatory. 

This is shown by the fact that the maximum rate for S-4 at P18,065 per month is higher than the minimum rate for S-5, the highest category at P13,295 a month only.  The rate difference between the maximum rate of S-4 and  the minimum rate for S-5 is P4,770, the maximum rate of S-4 being higher than the minimum rate of S-5. 

Simply stated, an S-4 employee getting the maximum salary of P18,065 a month will merely get a  reduced or diminished salary of P13,295 upon his promotion to S-5, the highest class or category of supervisors upon his promotion.  This condition is not an ideal labor relation but a situation which will surely ignite labor conflicts and  disputes in the work place.

 In whatever shade or color that we shall look upon the

issue of whether or not the herein employer can be held liable to pay the wage differential pay to the LOCALLY HIRED SUPERVISORS due to its obvious discriminatory wage policy, one

thing stands out—supervisors of the same ranks are not paid the same rates of pay.

 This inequitable rates of pay being implemented by

respondents result naturally into the herein employers’ discriminatory wage policy which Article 248 (e) of the LABOR CODE prohibits and defines as UNFAIR LABOR PRACTICE OF EMPLOYERS.[4]

  

The dispositive portion of the Decision reads:

 WHEREFORE, in view of all the FOREGOING, judgment is

hereby decreed ORDERING the respondent PHILEX GOLD PHILIPPINES, INC./GERARD H. BRIMO/LEONARD P. JOSEF/JOSE B. ANIEVAS, JOINTLY and  SEVERALLY to: 

1.                  Readjust the MONTHLY RATES OF PAY of locally hired SUPERVISORS in the categories of S-1 to S-5 RANKS in the same level/or amount with that of PADCAL SUPERVISORS of the same RANKS namely:

 S-1          -----------------            P13,081.60S-2          -----------------            P13,893.60S-3          -----------------            P15,209.60S-4          -----------------            P17,472.00S-5          -----------------            P20,300.00

effective November 1, 1998 and to pay Wage differential pay from November 1, 1998 up to the date of the Decision to all affected locally hired supervisors. 

2.                  To revise or modify its existing wage rates per supervisory ranking, making the maximum rate of a lower category lower than the minimum rate of the next higher category; and,

 3.                  Pay to the UNION ATTORNEY’S FEES at  5% of the

total sum of the Wage differential pay awarded within ten (10) days from receipt of this Decision.

 

The respondent is further ordered to deposit with the cashier of the NCMB the sum which is equivalent to the wage differential pay computed at a differential of P5,501.24 per person/supervisor per month from November 1, 1998 up to the date of this decision, for S-1; P5,663.24 per month per supervisor, for S-2; P5,979.24 per supervisor per month, for S-3;P7,065.75 per supervisor per month for S-4 and P8,428.46 per supervisor per month for S-5, and the ATTORNEY’S FEE which is 5% of the total wage differential pay also within ten (10) days from receipt of this decision.

 SO ORDERED.[5]

  

Philex Supervisors Union filed a Motion for Partial Reconsideration dated January 20, 2000, seeking, among others, the modification of the effectivity of the readjustment of the monthly rates of pay of the locally hired supervisors and of the computation of their wage differential from November 1, 1998 to August 1, 1997 although the discrimination in wages started upon the regularization of the ex-Padcal supervisors on July 1, 1997.

 On January 25, 2000, Philex Gold also filed a motion for

reconsideration, which was allegedly filed a day late, contending that it was denied due process as the Voluntary Arbitrator decided the 

case without its supplemental position paper, that the decision undermined the collective bargaining process between the parties relative to wage differentials, and that there was neither unlawful discrimination nor wage distortion between the ex-Padcal supervisors and the locally hired supervisors.  

 On February 29, 2000, the Voluntary Arbitrator issued the

assailed Resolution modifying his earlier Decision dated January 14, 2000, this time finding that there was no discrimination in the determination of the rates of pay of the supervisors. The Voluntary Arbitrator, however, readjusted the amount of wages of

local supervisors by adding or increasing their wages in the uniform sum of P800.00 a month effective October 1, 1999 “to erase the shadows of inequities among the various grades of supervisors.”  The dispositive portion of the Decision reads:

 WHEREFORE, IN VIEW of the foregoing, the Decision

dated January 14, 2000 is hereby modified in the following manner, to wit: 

1.                  The respondent employer is hereby ordered to re-adjust the wage rates of S-1 to S-5 supervisors by adding or increasing their wages in the uniform sum of P800.00 a month each effective October 1, 1999; and to compute and pay their differential pay from October 1, 1999 up to the time it is paid and implemented;

 2.                  The respondent is further ordered to pay Attorney’s

Fee to the Union’s lawyer at 5% of the  total amount of WAGE DIFFERENTIAL PAY;

 3.                  Finally, the respondent employer is ordered to

deposit to the cashier of the NCMB the WAGE DIFFERENTIAL PAY and the Attorney’s Fee adjudged within 10 days from receipt of this Resolution.

 SO ORDERED. [6]

  On March 13, 2000, respondent Union filed a petition for

review before the Court of Appeals raising the following issues:  (1)  whether or not the Voluntary Arbitrator erred in admitting petitioner’s motion for reconsideration which was filed beyond the reglementary period; (2) whether or not the Voluntary Arbitrator erred in modifying his decision by finding petitioner to be liable to its locally hired members in the sum of P800 per month as wage adjustment effective October 1999; and (3) whether or not the Voluntary Arbitrator erred in failing to grant  10 percent attorney’s fees on the total awards.

 

On March 2, 2000, petitioners filed a Manifestation of Compliance with the Voluntary Arbitrator alleging that on account of its payment to respondent union members of monetary benefits (in the amount of P1,000) provided by the Amendments and Supplement to the CBA, it has complied with the Resolution dated February 29, 2000.

 In a Resolution dated April 4, 2000, the Voluntary Arbitrator

denied[7]  said Manifestation of Compliance for lack of merit. While CA-G.R. SP No. 57701 was pending,

respondent Union filed on April 8, 2000 a Motion for Issuance of Writ of Execution of the Resolution dated February 29, 2000.

 In an Order dated June 27, 2000, the Voluntary Arbitrator 

issued a Writ of Execution enforcing the Resolution dated February 29, 2000.

 On June 29, 2000, Philex Gold filed a Motion to Lift Writ of

Execution, which was not acted upon by the Voluntary Arbitrator. On July 10, 2000, Philex Gold filed a petition for review

before the Court of Appeals, docketed as CA-G.R. SP No. 60065, questioning the propriety and validity of the Voluntary Arbitrator’s Order granting execution pending appeal. Said  petition was denied for lack of merit.

 On April 23, 2001, the Court of Appeals rendered the

assailed Decision, in CA-G.R. SP No. 57701, finding that petitioners failed to prove that they did not discriminate against the locally hired supervisors in paying them lower salaries than the ex-Padcal supervisors.  It held,  thus:

 Philex Gold’s attempt to explain the disparity in the salary

rates between “ex-Padcal” supervisors and the local-hires failed to convince Us.  It presented a salary structure for supervisors

classified into five categories, namely: “S-1, S-2, S-3, S-4, and S-5” with different rates of pay.  Each classification is further divided in terms of wage rates into minimum, medium, and maximum.  While the “ex-Padcal” supervisors received the maximum for each category, presumably because of seniority in employment, longer work experience in gold mining, specialized skills, and the “dislocation factor”, the local-hires received the minimum. 

This explanation is fraught with inconsistencies.  First, the CBA between the parties did not disclose this multi-tiered classification of supervisors (Rollo, pp. 36-37, 46-74).  Second, as found by the voluntary arbitrator in his original decision, the local-hires actually received salaries less than those they were supposed to be entitled (Rollo, p. 41).  Third, the minimum wage rate for a higher category happened to be lesser than the maximum rate of a lower category such that a supervisor with a rank of “S-1” maximum would get less upon his promotion to “S-2” minimum (Rollo, pp. 38-39, 90).  And finally, this pay structure was kept from the knowledge of the union and was only revealed in the course of the proceedings before the voluntary arbitrator.  These factors only accentuate the fact which Philex Gold tried to hide, that is, it unduly favored the “ex-Padcal” supervisors over the local-hires through a system of confidential salary structure.

 The long honored legal truism of “equal pay for equal

work,” meaning, “persons who work with substantially equal qualification, skill, effort and responsibility, under similar conditions, should be paid similar salaries,” has been institutionalized in our jurisdiction. Such that “if an employer accords employees the same position and rank, the presumption is that these employees perform equal work” as “borne by logic and human experience.”  The ramification is that “(i)f the employer pays one employee less than the rest, it is not for that employee to explain why he receives less or why the others receive more.  That would be adding insult to injury.  The employer has discriminated against that employee; it is for the employer to explain why the employee is treated unfairly.”  (International School Alliance of Educators v. Quisumbing, et al., G.R. No. 128845, June 1, 2000).

 Philex Gold having failed to discharge this burden, We opt

therefore to reinstate, albeit with modification, the original decision dated 14 January 2000 of the voluntary arbitrator as the same is duly supported by the pleadings filed before Us.[8]

 

 The dispositive portion of the Decision reads:

  WHEREFORE, premises considered, the assailed resolution

of 29 February 2000 is REVERSED and SET ASIDE and a new one entered REINSTATING the 14 January 2000 decision subject to the MODIFICATION that the readjustment of the monthly rates of pay of locally hired supervisors as well as their wage differential pay be made effective 1 August 1997 up to the finality of this decision.  This case is REMANDED to the voluntary arbitrator for the proper computation of wage differential and attorney’s fees.  No costs.

 SO ORDERED.[9]

  

Petitioners’ motion for reconsideration was denied by the appellate court in its Resolution dated August 29, 2001.

 Petitioners thus filed this petition with a prayer for the

issuance of a temporary restraining order. The Court issued a temporary restraining order enjoining the execution of the Decision of the Court of Appeals dated April 23, 2001 and its Resolution dated August 29, 2001 after petitioners posted a cash bond.

 Petitioners raise the following issues: 1.                                 Section 4, Rule 43 and Luzon Development Bank [v.

Association of Luzon Development Bank Employees, 249 SCRA 162 (1995)] provide that the decision of a voluntary arbitrator becomes final after 15 days from notice of the award.  Assuming the validity of service on Philex Gold’s liaison office, instead of its counsel’s address on record, did the Court of Appeals commit an error in law by stating that the Decision dated 14 January 2000 of VA Sitjar became “final and executory” after eleven days from notice?

 2.                                 Granting arguendo that Philex Gold had only a period

of 10 days within which to seek reconsideration of the Sitjar Decision, did the period begin to run upon service of

said Decision at an address which is not the address on record or upon the actual receipt thereof by Philex Gold’s counsel?

 3.                                 VA Sitjar found petitioners Brimo, Josef and Jose B.

Anievas, in their capacity as corporate officers, jointly and severally liable for the alleged obligation of Philex Gold to pay wage differentials to PBSU.  Did the Court of Appealscommit an error in law in affirming VA Sitjar when the latter disposed of an issue not submitted to him for arbitration and in directing solidary liability between Philex Gold and its top officers despite the absence of any finding of malice, bad faith, or gross negligence?

 4.                                 In leveling the wages of the Padcal Supervisors and

the Locally-Hired Supervisors, the Court of Appeals applied the egalitarian doctrine of “equal pay for equal work” in International School Alliance of Educators v. Quisumbing.  Does “equal pay for equal work” unqualifiedly remove management prerogative to institute qualitative difference in pay and benefits on the basis of seniority, skill, experience and other valid factors in the same class of workers doing the same kind of work?[10] 

  The relevant issues in this case are as follows:  (1)     Whether the notice sent through petitioner company’s

Liaison Office can be considered as notice to counsel; (2)     Whether the petitioners-corporate officers are

solidarily liable with Philex Gold in any liability to respondent Union;

  (3)    Whether the doctrine of “equal pay for equal work”

should not remove management prerogative to institute difference in salary on the basis of seniority, skill, experience and the dislocation factor in the same class of supervisory workers doing the same kind of work.

  

First Issue :    Whether the notice sent through petitioner

company’s Liaison Office can be considered as notice to counsel

  Petitioners contend that the Court of Appeals erred in

holding that their motion for reconsideration of the Decision of the Voluntary Arbitrator dated January 14, 2000 was filed out of time.

 Indeed, the Court of Appeals found that  “[b]ased on the

certification issued by the voluntary arbitrator himself, the decision was received by the respondents (petitioners herein) on 14 January 2000 (Rollo, p. 123), and they filed their motion for reconsideration on 25 January 2000, or on the eleventh day from receipt of the decision.”  The appellate court ruled that the late filing rendered the decision final and executory as regards the petitioners, and that the Voluntary Arbitrator erred in admitting petitioners’ motion for reconsideration.

  Petitioners argue that the   service of the Voluntary

Arbitrator’s Decision on Philex Gold’s  Liaison Office atLibertad St., Bacolod City on January 14, 2000   was improper since their  counsel’s address of record was at Vista Alegre, Nabulao, Sipalay, Negros Occidental 6113.  Petitioners state that Philex Gold’s  Liaison Office forwarded said Decision to their counsel only the next day or on January 15, 2000,  which should be the date  of notice to counsel   and the basis for computation of the period to file a motion for reconsideration of said Decision.

 The contention is meritorious. Section 4, Rule III of the NCMB  Procedural Guidelines in the

Conduct of Voluntary Arbitration Proceedings states: 

Section 4.  Service of Pleadings, Notices and Awards. – Copies of pleadings, notices or copies of [an] award may be

served through personal service or by registered mails on the parties to the dispute:  Provided, that where a party is represented by counsel or authorized representative, service shall be made on the latter.  Service by registered mail is complete upon receipt by the addressee or his agents.[11]

In this  case,  petitioners were represented before the Voluntary Arbitrator  by Attys. Deogracias G. Contreras Jr.  and Weldy U. Manlong.   Hence, under the NCMB Guidelines,  service of pleadings, notices and awards should be made on petitioners’ counsel.

 The Court noted that in petitioners’ Position Paper and 

Supplemental Position Paper filed with the Voluntary Arbitrator,  the address of petitioners’ counsel was indicated as Vista Alegre, Nabulao, Sipalay, Negros Occidental, 6113.  However, the Decision of the Voluntary Arbitrator dated January 14, 2000 was sent through the Liaison Office of Philex Gold, thus:

 ATTY. WENDY U. MANLONGCounsel for the RespondentsPHILEX GOLD PHILIPPINES, INC.GERARDO BRIMO, LEONARD P. JOSEF,JOSE B. ANIEVASC/O Liaison Office, Libertad St.Bacolod City

 

Even the Court of Appeals stated that “based on the certification issued by the voluntary arbitrator himself, the decision was received by the respondents on 14 January 2000. . . .”   Said service on Philex Gold’s  Liaison Office or  on the petitioners themselves  cannot be considered as notice in law to  petitioners’ counsel.

 Under the circumstances, reliance may be placed on the

assertion of petitioners that a  copy of  the  Decision of the Voluntary Arbitrator dated January 14, 2000 was delivered to their  counsel  the next day or on January 15, 2000, which must be deemed as the date of notice to counsel of  said Decision.[12]

Hence, when petitioners’ motion for reconsideration was filed on January 25, 2000, it was filed within the 10-day reglementary period under Article 262-A of the Labor Code.  The Court of Appeals, therefore, erred in holding that said motion for reconsideration was filed out of time.

 Second Issue :  Whether the petitioners-

corporate officers  are solidarily liable with  Philex Gold in any liability to respondent Union

  Petitioners officers contend that they should not be adjudged

solidarily liable with Philex Gold. The contention is meritorious. A corporation is a juridical entity with legal personality

separate and distinct from those acting for and in its behalf and, in general, from the people comprising it.[13]  The rule is that obligations incurred by the corporation, acting through its directors, officers and employees, are its sole liabilities.[14]  However, it is possible for  a corporate director, trustee or officer to be held solidarily liable with the corporation in the following  instances:

 1.         When directors and trustees or, in appropriate

cases, the officers of a corporation-- 

(a)                                 vote for or assent to patently unlawful acts  of the corporation;

(b)                                 act in bad faith or with gross negligence in directing the corporate affairs;

(c)                                 are guilty of conflict of interest to the prejudice of the corporation, its stockholders or members, and other persons.

 

2.                               When a director or officer has consented to the issuance of watered stocks or who, having knowledge thereof, did not forthwith file with the corporate secretary his written objection thereto. 

3.                               When a director, trustee or officer has contractually agreed or stipulated to hold himself personally and solidarily liable with the Corporation.

-4.                               When a director, trustee or officer is made, by

specific provision of law, personally liable for his corporate action.[15]

 The corporate officers in this case have not been proven to

fall under any of the aforecited instances; hence, they cannot be held solidarily liable with the company in the payment of any liability. 

 Third Issue :   Whether  the doctrine of “equal

pay for equal work” should not remove management prerogative to institute difference in salary within the same supervisory level

  Petitioners submit that the “equal pay for equal work”

doctrine in International School Alliance of Educators v. Quisumbing,[16]  which the Court of Appeals cited to support its Decision should be narrowly construed to apply to a situation where invidious discrimination exists by reason of race or ethnicity, but not where valid factors exist to justify distinctive treatment of employees even if they do the same work. 

 Petitioners explained that the ex-Padcal supervisors were

paid higher because of their longer years of service, experience, their training and skill in the underground mining method wanting in the local supervisors, and their relocation to Bulawan, Negros Occidental.  They assert that the differential treatment of the ex-

Padcal supervisors is not arbitrary, malicious or discriminatory but justified by the circumstances of their relocation and integration in the new mining operation in Bulawan.

 The Court is not persuaded by petitioners’ contention. Petitioners admit that the “same class of workers [are] doing

the same kind of work.” This means that an ex-Padcal supervisor and a locally hired supervisor of equal rank do the same kind of work.  If an employer accords employees the same position and rank, the presumption is that these employees perform equal work.[17] Hence, the doctrine of “equal pay for equal work” in International School Alliance of Educators was correctly applied by the Court of Appeals.   

 Petitioners now contend that the doctrine of “equal pay for

equal work” should not remove management prerogative to institute difference in salary on the basis of seniority, skill, experience and the dislocation factor in the same class of supervisory workers doing the same kind of work.[18]

 In this case, the Court cannot agree because petitioners

failed to adduce evidence to show that an ex-Padcal supervisor and a locally hired supervisor of the same rank are initially paid the same basic salary for doing the same kind of work.  They failed to differentiate this basic salary from any kind of salary increase or additional benefit which may have been given to the ex-Padcal supervisors due to their seniority, experience and other factors.  

 The records only show that an ex-Padcal supervisor is paid a

higher salary than a locally hired supervisor of the same rank.  Therefore, petitioner failed to prove with satisfactory evidence that it has not discriminated against the locally hired supervisor in view of  the unequal salary.

 

To reiterate the ruling of Philippine-Singapore Transport Services, Inc. v. NLRC,[19] which was cited by the Court of Appeals in its Decision:

 . . .

 It is noteworthy to state that an employer is free to

manage and regulate, according to his own discretion and judgment, all phases  of employment, which includes hiring, work assignments, working methods, time, place and manner of work, supervision of workers, working regulations, transfer of employees, lay-off of workers, and the discipline, dismissal and recall of work.  While the law recognizes and safeguards this right of an employer to exercise what are clearly management prerogatives, such right should not be abused and used as a tool of oppression against labor. The company’s prerogative must be exercised in good faith and with due regard to the rights of labor. A priori, they are not absolute prerogatives but are subject to legal limits, collective bargaining agreements and the general principles of fair play and justice.[20]  (Emphasis supplied.)

  

WHEREFORE, the petition is  hereby DENIED.  No reversible error was committed by the Court of Appeals in its Decision in CA-G.R. SP No. 57701 and in its Resolution promulgated on August 29, 2001. The Temporary Restraining Order issued by the Court is LIFTED.

 No costs.

 

SO ORDERED.

 ADOLFO S. AZCUNA

    Associate Justice   WE CONCUR:

 

  

HILARIO G. DAVIDE, JR.Chief Justice

Chairman 

   LEONARDO A. QUISUMBING   CONSUELO YNARES-SANTIAGO

Associate Justice                                             Associate Justice

   

ANTONIO T. CARPIOAssociate Justice

 

 

CERTIFICATION           Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.   

HILARIO G. DAVIDE, JR.Chief Justice

[1]               CA Decision, Rollo, pp. 36-37.[2]               Docketed as V.A. Case No. RB6-160-11-01-99.[3]               WAGE RATES EFFECTIVE AUGUST 1, 1998 TO JULY 31, 1999 WITH 12% INCREASE                  MINIMUM                                                 MAXIMUM                S-1      P 8, 490                                               P12,735                S-2      P  9,220                                               P13,830                 S-3      P10,340                                               P16,030                S-4      P11,655                                               P18,065                S-5      P13,295                                               P20,610[4]               Rollo, pp. 97-98.[5]               Id. at 104-105.[6]               Id.  at 136-137.[7]               The reasons for the denial are:  (1)  The employer failed to submit evidence, like

payrolls and vouchers, showing that the wage adjustment for the local supervisors had been effected and based on the decretal portion of the February 29, 2000 Resolution;  (2) If it is true that the employer had made substantial adjustments to the pay scales of local supervisors, the adjustments only reduced the existing wage gaps between local and PADCAL supervisors requiring the implementation of the wage adjustments ordered by the February 29, 2000 Resolution; (3) There is no cogent reason presented by the MANIFESTATION to disturb the February 29,2000 RESOLUTION. (Annex “C,” Rollo, pp. 183-184.)

[8]               Rollo, pp. 47-48.[9]               Id. at 49.[10]             Id. at 453-454.[11]             Emphasis supplied.[12]             Alimpoos v. Court of Appeals,  No. L-27331, July 30, 1981, 106 SCRA 159.[13]             Santos v. National Labor Relations Commission, G.R. No. 101699, March 13, 1996,

254 SCRA 673, 681.[14]             Ibid.[15]             MAM  Realty Development Corporation v. National Labor Relations Commission, 

G.R. No. 114787, June 2, 1995,  244 SCRA 797, 802-803.         [16]             G.R. No. 128845, June 1, 2000, 333 SCRA 13.[17]             Id. at 23.[18]             Emphasis supplied.

[19]            G.R. No. 95449, August 18, 1997, 277 SCRA 506.[20]             Id. at  511-512.

    

FIRST DIVISION PEOPLE OF THE PHILIPPINES,               G.R. No. 147996                              

Appellee,                                                                

Present:                                                                                               

DAVIDE, JR., C.J., (Chairman),                                                                          - versus -                                          QUISUMBING,

YNARES-SANTIAGO,CARPIO, andAZCUNA, JJ.

BAYANI ROMA,                              Appellant.                                       Promulgated:                                                                             September 30, 2005x-----------------------------------------------------------------------------------------x 

DECISION 

AZCUNA, J.: 

          This is a petition for review on certiorari under Rule 45 of

the 1997 Rules of Civil Procedure, assailing the decision[1] of the

Court of Appeals in CA–G.R. CR No. 22947, which affirmed with

modifications the decision[2] of the Regional Trial Court of Cebu

City, Branch XX, finding appellant, Bayani Roma, guilty of 

murder.

          On May 20, 1991, an information for murder was filed

against Bayani Roma, Edwin Galeon, “Bating” and “Bitoy,” as

follows:

 That on or about the 13th day of April, 1991, about 11:30

o’clock in the evening, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with handguns, conniving, confederating and mutually helping with one another, with deliberate intent, with intent to kill, with treachery and evident premeditation, did then and there suddenly and unexpectedly fire shots at one Garland Egos, hitting him on the vital parts of his body, thereby inflicting upon him the following physical injuries:

 “GUNSHOT WOUNDS, MULTIPLE, HEAD, FACE AND

RIGHT LOWER EXTREMITY”           

as a consequence of which, said Garland Egos died almost instantaneously.

 CONTRARY TO LAW.[3]

 

 

On October 12, 1994, appellant pleaded not guilty to the

crime charged.  Since his co-accused were at large, they were not

arraigned.[4]

 

          Trial proceeded in due course.  The prosecution presented

four witnesses, namely, Dr. Jesus P. Cerna, Antonio Montilla,

Stephen Egos and Nicasio Egos.  Their testimonies were for the

purpose of showing that appellant was one of the assailants who

shot and killed the victim, Garland Egos.

 

          Dr. Jesus P. Cerna testified that he performed a post-

mortem examination on the body of Garland Egos.  His

examination revealed 

that the victim had abrasions on several parts of his body and

sustained four gunshot wounds, as follows: gunshot wound

number one was located on the right temporal region, above the

right part of the head, in front of the forehead; gunshot wound

number two was located at the right part of the face known as the

zygomatic area; gunshot wound number three was found on the

right thigh; and gunshot wound number four was located above

the right knee.  He recovered three slugs from the body of

Garland Egos.  He identified the post-mortem examination report

in open court.  The report stated that the cause of death was

shock secondary to multiple gunshot wounds.[5]

 

          Antonio Montilla testified that he knew both the victim and

appellant, since they were neighbors.  At about 11:30 p.m. of April

13, 1991, he was standing outside the San Antonio de Padua

Chapel in Lorega, San Miguel, Cebu City, right beside a fenced in

area where a benefit dance was going on.  He heard someone

shout, “Watch out.”  At that exact moment, just two meters away

from him, he saw Edwin Galeon shoot Garland Egos twice, which

caused the latter to fall to the ground.  Immediately after that,

Bitoy and appellant fired one shot each at the victim successively

as he was lying on the ground.  He could positively identify Bitoy

and appellant since the place was well lit and his view was

unobstructed because most of the people had run away after the

first two shots were fired by Galeon.[6]

 

          The third witness for the prosecution was Stephen Egos.  He

is the younger brother of the victim.  He testified that on April 13,

1991 at past 11 p.m. he was at a dance hall in Lorega, San Miguel

with his friends.  His testimony corroborated that of Antonio

Montilla.  He added that after Galeon fired the second shot, Bating

pointed a gun at him and said, “If you are going to help, I will

break your head.”  This prevented him from helping his brother. 

After that, with the victim already lying on the ground, Bitoy and

appellant fired one shot each at the victim successively.   Then,

appellant shouted, “No one should come near; if you come, you

will die.”[7]

 

          The last witness for the prosecution was Nicasio Egos, who

is the father of the victim.  He testified that the vigil, which lasted

14 days, and the burial cost him a total of P61,000.  He also

claimed for moral damages for the death of his son in the amount

of P100,000.[8]

 

          The defense presented three witnesses, namely, appellant

Bayani Roma, Celedonio Gucor and Maria Sentillas. Their

testimonies were for the purpose of proving that appellant was

not involved in the killing of Garland Egos because he was not at

the scene of the crime at the time the shooting took place.

 

          Celedonio Gucor is the boyfriend of Edna Roma, who is the

sister of appellant.  Gucor testified that in the evening of April 13,

1991, the parents of Bayani Roma requested him to look for

Bayani so that he could take his supper.  At around 10:45 p.m.,

Gucor and Edna Roma went to look for appellant in the basketball

court, where the benefit dance was being held, which was near

the chapel. They searched for over an hour but failed to find

appellant.  He suddenly heard a gunshot and looked in the

direction of the gunshot and saw someone he didn’t know fire a

shot at the victim.  After that, he saw Bating and Bitoy shoot the

victim, who was already on the ground.[9]

 

          The second witness for the defense is appellant himself,

who raised the defense of alibi and denied participation in the

shooting of Garland Egos.  To prove his defense of alibi, he

testified that he and Maria Sentillas went to the dance at 9 p.m.

He claimed that he had a conversation with the victim for about

10 minutes before leaving the place of the dance to bring Maria

Sentillas home at around 10 p.m.  After bringing Sentillas home,

he proceeded to a drinking spree at a store that was near the

house of Sentillas and far from the site of the shooting.  He

remained there until 2 a.m.[10]

 

          The final witness for the defense was Maria Sentillas.  She

corroborated the testimony of appellant.  She said that appellant

accompanied her to her house and stayed there up to 10:30 p.m. 

A certain Cadie Camacho invited appellant for a drinking session

at a nearby store.  When she slept at around 12:15 a.m., the

drinking session was still on-going. 

          In its decision, promulgated on December 3, 1998, the trial

court found appellant guilty and decreed as follows:

                    WHEREFORE, in view of the foregoing considerations, the Court is constrained to convict co-accused Bayani Roma beyond reasonable doubt for the crime of Murder as charged in the Information, and applying the Indeterminate Sentence Law, he is hereby sentenced to suffer the penalty of imprisonment of from Prision Mayor in its maximum period toReclusion Temporal or 

from Ten (10) Years and One (1) Day to Twenty (20) Years including the accessory penalties provided for by law.                         Co-accused Bayani Roma is likewise hereby ordered to indemnify the heirs of victim Garland Egos the

amount of Fifty Thousand Pesos (P50,000.00) for moral damages and Ten Thousand Pesos (P10,000.00) burial expenses.                         Bayani Roma is hereby credited with the full period of his preventive imprisonment, if he had agreed in  writing to abide by the rules imposed upon convicted prisoners, otherwise only 4/5 thereof.                         The case versus the three accused is hereby archived and let an alias warrant issue against them.                         SO ORDERED.[11]

 

Appellant questioned the decision of the trial court with the Court

of Appeals, raising the following issues:

 I

                        THE TRIAL COURT ERRED IN GIVING FULL WEIGHT AND CREDENCE TO THE TESTIMONIES OF THE PROSECUTION WITNESSES PARTICULARLY ANTONIO MONTILLA AND STEPHEN EGOS AND COMPLETELY DISREGARDED THE TESTIMONY OF THE DEFENSE WITNESSES THAT THE ACCUSED-APPELLANT WAS NOT INVOLVED IN THE KILLING. 

II                        ASSUMING ARGUENDO THAT ACCUSED-APPELLANT WAS INVOLVED IN THE KILLING THE TRIAL COURT ERRED IN FINDING THE QUALIFYING CIRCUMSTANCES OF TREACHERY AND EVIDENT PREMEDITATION.

 

The Court of Appeals affirmed the trial court’s decision, with

modifications, as follows:

                         The trial court judiciously exercised its discretion in giving full weight and credence to the testimonies of the prosecution witnesses.  The submissions of the accused-appellant do not merit consideration.             Firstly, the portion of Montilla’s testimony quoted by accused-appellant in his brief seeking to establish the alleged ill-motive of the said witness to testify against him is without merit.  The portion being assailed reads:

 FISCAL CAPACIO to witness (Antonio Montilla) on direct examiniation: Q:         As Barangay Tanod did you feel it was your duty to introduce yourself to the police because you witnessed to [sic] the shooting               incident? A:          I did not execute any affidavit because I was

also one of the witnesses in that case where the same accused shot another person, and that accused Bayani Roma intruded [into] our house and in fact I am now in custody of Romy Cordova.

 COURT: Q:         Who is this Romy Cordova?A:         He is Major, your Honor. FISCAL CAPACIO: Q:         Why are you in custody of Major Cordova?A:         Because I requested the Mayor that I be placed                         under the custody of Major Cordova because                       these accused waylaid me. Q:         In short, you sought police protection?A:         Yes, sir. (TSN, April 7, 1995, 9) 

The contention of accused-appellant that the above-quoted portion of Montilla’s testimony establishes ill-motive on his part is misleading.  A closer look at the quoted testimony shows that it was made in response to the public prosecutor’s question on why the witness did not volunteer information to the police investigators.  The assailed portion of the witness’ testimony is more to establish the facts of his failure to volunteer information to the authorities and to execute [an] affidavit and definitely not to prove the ill-motive being alleged by the accused-appellant.  Clearly, his testimony was quoted out of context and as such it miserably failed to establish accused-appellant’s allegation.  It is a settled rule that, where there is failure on the part of the defense to prove that the prosecution witnesses were moved by an improper motive, the presumption is that the said witnesses

were not so moved and that their testimonies are entitled to full faith and credit (People v. Sancholes, 271 SCRA 527, 540 [1997]).  Moreover, the testimony of a witness must be considered and calibrated in its entirety and not by truncated portions thereof or isolated passages therein (People v. San Gabriel, 223 SCRA 84 [1993]).                         Secondly, the non-execution of affidavits by prosecution witnesses Antonio Montilla and Stephen Egos prior to their testimonies in court is not a ground to discredit their testimonies.  There is no law which requires that the testimony of a prospective witness should be reduced into writing in order that his declaration in court may be believed (People v. Embarga, 319 SCRA 304, 316 [1999]).                         Thirdly, the failure of the prosecution witnesses to volunteer information regarding the incident to official investigators is capable of rational explanation.  Montilla opted not to volunteer information to the authorities because of his fear of reprisal from the assailants, one of whom is accused-appellant who had previously intruded into his house.  In fact, Montilla sought the protective custody of Major Cordova out of fear for his life.  As for Stephen Egos, he did not volunteer to execute an affidavit during the investigation of the incident at the Prosecutor’s office in May 1991 because he wanted that the accused be arrested first.  He was afraid to suffer the same fate as his older brother if he volunteers information against the accused.  As held in the case of People v. Navales (266 SCRA 569, 590 [1997]), initial reluctance to volunteer information regarding the crime due to fear of reprisal is common enough that it has been judicially declared as not affecting a witness’ credibility.                         Lastly, the relationship of Stephen Egos to the victim is not sufficient basis to discredit the testimony of the witness.  A witness’s relationship to a victim of a crime would even make his or her testimony more credible as it would be unnatural for a relative who is interested in vindicating the crime to accuse thereof somebody other that the real culprit (People v. Villanueva, 302 SCRA 669 [1999]).                         The arguments raised by accused-appellant are factual in nature and boil down to the issue of credibility of witnesses and their testimonies.  Deeply embedded in our jurisprudence is the rule that when the issue of credibility of witnesses  is concerned, appellate courts will generally not

disturb the findings of facts of the trial court considering that the latter 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 certain facts of substance and value have been plainly overlooked which, if considered might affect the result of the case (People v. Quejada, 223 SCRA 77, 86 [1993]).  In giving full weight and credence to the testimonies of prosecution witnesses Antonio Montilla and Stephen Egos, the trial court observed: 

             The testimonies of the prosecution witnesses have inspired belief and therefore have to [be] given full faith and credence over the testimony of co-accused Bayani Roma and his witnesses.  The prosecution witnesses’ demeanor in court were straightforward and candid.  There were [sic] no tinge of ill-will that can be ascribed to them to falsely  testify against the accused.  Nor did the latter and his witnesses presented [sic] a clear and convincing evidence of motive on the part of the prosecution witnesses to fabricate a charge against him.  Co-accused Bayani Roma himself admitted that he the victim, Garland Egos were friends (tsn, Chavez, p. 5, hearing, March 13, 1997).  Absence of motive on the part of the prosecution witnesses against the accused, [renders it] hardly credible that such person[s] would pervert the truth, testify a falsehood, and cause the damnation of one who had neither brought him harm nor injury. (People v. Mendoza, 121 SCRA 149). 

                        The trial court’s reliance on the demonstrated strength of the prosecution evidence and its rejection of the palpably weak defense of denial and alibi interposed by accused-appellant merit Our full affirmance.                         The Supreme Court has consistently held that the defense of alibi is considered with suspicion and always received with caution, not only because it is inherently weak and unreliable, but also because it can be fabricated easily (People v. Batidor, 303 SCRA 335, 350 [1999]).  Time and again, is has been ruled that alibi is the weakest of all defenses and cannot prevail over the positive identification of the accused by an eyewitness who had no untoward motive to falsely testify against him (People v. Morales, 241 SCRA 267 [1995]; People v. Mamalayan, 280 SCRA 748 [1997]).  In the case at bench,

prosecution witnesses Antonio Montilla and Stephen Egos have positively identified accused appellant as one of the assailants in the shooting of Garland Egos on April 13, 1991 at about 11:30 in the evening in Lorega, San Miguel, Cebu City.  Against these witnesses, no improper motive to falsely testify against accused-appellant has been shown.                         Furthermore, for the defense of alibi to prosper, the requirements of time and place must be strictly met (People v. Antonio, 303 SCRA 414 [1999]).   It is not enough to prove that the accused was somewhere else when the offense was committed.  It 

must likewise be shown that he was so far away that it was not possible for him to be physically present at the place of the crime or its immediate vicinity at the time of its commission (People v. Verde, 302 SCRA 690 [1997]).  No such showing was made in this case.  The requirements of time and place have not been met.                         The trial court properly appreciated the presence of the qualifying circumstance of treachery.  There is treachery when the offender commits any of the crimes against persons, employing means, methods or forms in their execution, without risk to himself arising from the defenses which the offended party might make (People v. Mallari, 310 SCRA 621, 634 [1999]).  Also, treachery may be appreciated even when the victim was initially assaulted frontally, but was attacked again after being rendered helpless and had no means to defend himself or to retaliate (People v. Molina, 292 SCRA 743 [1998]).  In this case, as testified by the eyewitnesses, the wounded victim was already lying helpless on the ground when he was unmercifully shot by the accused-appellant.  Indeed, there is treachery where the victim soaked in his own blood, defenseless, and calling for help, weakened and dying, was still attacked, thus employing means to insure or afford impunity (People v. Padao, 267 SCRA 64, 78 [1997]).                         On the other hand, the contention of accused-appellant that evident premeditation was not sufficiently proven appears tenable.  For this circumstance to be appreciated, it is necessary that the prosecution prove the following elements: (1) the time when the accused decided to commit the crime; (2) an overt act showing that the accused had clung to their determination to commit the crime; and (3) the lapse of a sufficient period of time between the decision and the execution

of the crime, to allow the accused to reflect upon the consequences of the act (People v. Layno, 264 SCRA 558, 577 [1996]).  There is nothing in the records to show that the accused-appellant and his co-accused planned the killing of the victim in advance.  Neither was there evidence presented indicating that the crime was committed in accordance with a pre-conceived plan.  As held in People vs. Platilla (304 SCRA 339, 354 [1999]), evident premeditation cannot be appreciated in the absence of direct evidence showing the planning and preparation in killing the victim.  Thus, We hold that the trial court erred in appreciating the aggravating circumstance of evident premeditation.                         The penalty imposed and the amount of indemnity awarded by the trial court should be modified.  The trial court held: 

             As the offense charged was committed on April 13, 1991, when the imposition of the death penalty was prohibited by the 1987 Constitution and considering further that the reimposition of the death penalty (R.A. 7659) was made effective only in 1994, the imposable penalty hence, is reclusion temporal in its maximum period to reclusion perpetua. 

. . .              WHEREFORE, in view of the foregoing considerations, the Court is constrained to convict co-accused Bayani Roma beyond reasonable doubt for the crime of Murder as charged in the Information, and applying the Indeterminate Sentence Law, he is hereby sentenced to suffer the penalty of imprisonment of from Prision Mayorin its maximum period to Reclusion Temporal or from Ten (10) Years and One (1) Day to Twenty (20) years including the accessory penalties provided for by law. . . . 

Prior to the enactment of R.A. 7659 (Law on Death Penalty), the penalty for the crime of murder as stated in Article 248 of the Revised Penal Code (RPC) ranges from reclusion temporal in its maximum period to death.  Since the said penalty contains three (3) periods, the applicable provision is Article 64 of the same Code.  Applying Article 64, paragraph 1 of the RPC, the proper penalty imposable on accused-appellant is reclusion

perpetua there being no aggravating circumstance nor mitigating circumstance present.  We, therefor, disagree with the reasoning of the trial court that the penalty of death provided in Article 248 of the RPC should not be considered in determining the applicable penalty in view of the provision of the 1987 Constitution prohibiting its imposition (Article III, Section 19 [1]).  Such ruling implies that the range of the penalty in Article 248 was reduced from three (3) periods to two (2) periods only upon the effectivity of the 1987 Constitution.  Such is not the case.  As held in People v. Muñoz (170 SCRA 107, 124 [1989]), “. . . Article III Section 19 (1) does not change the periods of the penalty prescribed by Article 248 of the Revised Penal Code except only in so far as it prohibits the imposition of the death penalty and reduces it to reclusion perpetua.  The range of the medium and minimum penalties remains unchanged.”  Furthermore, the Indeterminate Sentence Law (ISL) cannot be applied to the accused-appellant who was meted with the penalty of reclusion perpetua.  In the case of People v. Bahuyan (238 SCRA 330, 348 [1994]), the Court held that the benefits of ISL are not applicable to persons convicted of offenses punishable with reclusion perpetua which is an indivisible penalty (Ibid.).                         Lastly, pursuant to prevailing jurisprudence, an additional amount of fifty thousand pesos (P50,000.00) as death indemnity to the heirs of the victim is hereby awarded (People v. Mahinay, 304 SCRA 769, 779 [1999]).                         WHEREFORE, IN VIEW OF THE FOREGOING, except for the modifications with respect to the imposable penalty and the death indemnity as above discussed, the appealed decision is AFFIRMED in all other respects.  Costs against accused-appellant.                         Let the entire records of this case be elevated to the Supreme Court for review pursuant to the second paragraph of Section 13, Rule 124 of the Rules of Court, as amended, which provides: 

. . . 

Section 13. Quorum of the court. -- . . .Whenever the Court of Appeals should be of the opinion that the penalty of reclusion perpetua or higher should be imposed in a case, the Court after discussion of the evidence and the law involved,

shall render judgment imposing the penalty of reclusion perpetua or higher as the circumstance warrant, refrain from entering judgment and forthwith certify the case and elevate the entire record thereof to the Supreme Court for review. SO ORDERED.[12]

 

          The case was elevated to this Court for review and in the

brief filed by appellant the following issues were raised:

 

ITHE LOWER COURT GRAVELY ERRED IN FAILING TO CONSIDER THAT THE CREDIBILITY OF PROSECUTION WITNESSES ANTONIO MONTILLA AND STEPHEN EGOS [WAS] IMPAIRED BY THEIR FAILURE TO EXPLAIN SATIFACTORILY WHY THEY DID NOT PRESENT THEMSELVES AS EYEWITNESSES TO THE POLICE AND TO THE OFFICE OF THE CITY PROSECUTOR OF CEBU WHEN THIS CASE WAS STILL BEING INVESTIGATED PRIOR TO ITS FILING IN COURT. 

II 

THE LOWER COURT GRAVELY ERRED IN FAILING TO CONSIDER THAT THE ACCUSED-APPELLANT’S DEFENSE OF ALIBI WAS STRENGTHENED BY THE LACK OF CREDIBILITY OF PROSECUTION WITNESSES, ANTONIO MONTILLA AND STEPHEN EGOS. 

III 

THE LOWER COURT GRAVELY ERRED IN FAILING TO CONSIDER THAT THERE IS NO CLEAR EVIDENCE THAT THE ACCUSED’S DEPARTURE FROM LOREGA, SAN MIGUEL WAS A FLIGHT FROM THE SCENE OF THE CRIME, AND [IN} IGNORING THE FACT THAT THE ACCUSED RETURNED TO LOREGA, SAN MIGUEL IN 1993, WHERE HE WAS ARRESTED IN 1994. 

IV 

THE HONORABLE COURT OF APPEALS ERRED IN NOT ALLOWING THE ACCUSED TO WITHDRAW HIS APPEAL. 

 

          Regarding the fourth issue, appellant claims that the Court

of Appeals erred in not allowing the accused to withdraw his

appeal.  Section 3 of Rule 50 of the Rules of Court states that: “An

appeal may be withdrawn as of right at any time before the filing

of the appellee’s brief.  Thereafter, the withdrawal may be allowed

in the discretion of the court.”  In this case, the appellee’s brief

was filed on March 16, 2000, while the motion to withdraw was

filed on May 30, 2000.  In an attempt to prove that a motion to

withdraw was filed prior to the filing of the appellee’s brief,

counsel for appellant alleged in the motion to withdraw that

appellant wrote a personal letter as early as November 1999

expressing his intention to withdraw his appeal, but failed to

indicate the docket number of the case.[13]  Other than by mere

assertion, appellant’s counsel failed to prove that the alleged

personal letter was indeed written and actually sent to the Court

of Appeals and received by it.  Thus, the only motion to withdraw

that can be considered is the one filed on May 30, 2000, which

was filed after the filing of the appellee’s brief.  Therefore, the

motion to withdraw is subject to the discretion on the part of the

court.  Furthermore, the Court of Appeals can be said to have

exercised its discretion properly in denying the motion to

withdraw.  Before exercising its discretion, it first asked appellee

to comment on the motion to withdraw.  In the Comment,

appellee opposed the motion to withdraw, pointing out, that “the

penalty and civil indemnity imposed by the trial court are not in

accordance with law and jurisprudence and therefore needs to be

corrected.”[14]  In fact, the penalty and civil indemnity indeed

required modification and was actually modified by the Court of

Appeals.  Such modification was not even questioned by appellant

in this appeal.

 

          In the first issue raised by appellant, he claims that “the

credibility of prosecution witnesses Antonio Montilla and Stephen

Egos [was] impaired by their failure to explain satisfactorily why

they did not present themselves as eyewitnesses to the police and

to the Office of the City Prosecutor of Cebu when this case was

still being investigated prior to its filing in court.”  As a rule, the

appellate court gives full weight and respect to the determination

by the trial court of the credibility of witnesses since the trial court

judge has the opportunity to observe the demeanor of the

witness.[15]  The trial court in its decision made the following

determination:

 The testimonies of the prosecution witnesses have

inspired belief and therefore have to be given full faith and credence over the testimony of co-accused Bayani Roma and his witnesses.  The prosecution witnesses’ demeanor in court [was] straightforward and candid, there [was] no tinge of ill will that can be ascribed to them to falsely testify against the accused.

 

 

Accordingly, this Court will not disturb the determination

made by the trial court regarding the credibility of the witnesses. 

         

          Furthermore, delay in presenting oneself as a witness does

not affect credibility if the delay is satisfactorily explained.[16] 

Appellant claims that the delay of Antonio Montilla and Stephen

Egos in presenting themselves as eyewitnesses was not

satisfactorily explained.  The following excerpts from the

transcript of stenographic notes (TSN) of this case show that there

was in fact a good reason for the delay in presenting themselves

as witnesses: 

Direct examination of Antonio Montilla: FISCAL CAPACIO Q-       As a Barangay Tanod did you feel it was your duty to

introduce yourself to the police because you witnessed to (sic) the shooting incident?

 A-                I did not execute any affidavit because I was also one of

the   witnesses in that case where the same accused shot another      person, and that accused Bayani Roma intruded [into] ou[r] house            and in fact I am now in custody of Romy Cordova.

 COURT Q-                Who is this Romy Cordova? A-                He is a Major, Your Honor. FISCAL CAPACIO Q-        Why are you in custody of Major Cordova? A-                Because I requested the Mayor that I be placed under the

custody of Major Cordova because these accused used to waylaid [sic] me.

 Q-                In short you sought police protection? A-        Yes, sir.[17]

  

 Cross-examination  of Antonio Montilla: Q-        You did not report the matter to the Police? A-                I did not report, sir. Q-                You were a Barangay Tanod, a peace officer, why did you

not make a report to the police? A-                Because policemen arrived after twenty (20) minutes. 

Q-                You were a witness to the shooting, why did you not volunteer as a witness being a peace officer?

 A-                I was afraid and the police were already there.[18]

  

Cross examination of Stephen Egos:  

Q        This case was investigated by the City Prosecutor’s Office in May, 1991, did you volunteer to execute an affidavit in order to attest to the fact that these accused shoot [sic] your elder           brother?

 A         I did not execute an affidavit because they were not yet

arrested but if they will be arrested I will execute [an] affidavit.

 Q        Please tell the Court why you made that kind of decision

only after the persons are arrested that you will make an affidavit?

 A         Because of my traumatic experience I cannot think that is

why I went to Argao because they were looking for me and on that year I was able to get married.

 Q        Are you trying to impress the Court that [the] execution of

that affidavit was too much for you because you were about to get married?

 A         At that time I just wanted it that the accused be arrested

first before I would execute an affidavit.[19]

 

It can be seen from the above-quoted excerpts of transcript of

stenographic notes that the reason for the failure of Montilla and

Egos to present themselves as witnesses earlier was because they

were afraid of appellant and his co-accused, since they were still

all undetained and roaming freely at that time.  It has been held

by this Court that:

 

It is understandable when a witness does not immediately report the identity of the offender after a startling occurrence, more so when he is related to the victim as this makes it all the more traumatic.  It is equally understandable for a witness to fear for his safety especially when townmates are involved in the commission of a crime.  An inculpatory statement can easily provoke retaliation.[20]

 

          For the second issue, appellant claims that the lower court

gravely erred in failing to consider that his defense of alibi was

strengthened by the lack of credibility of the prosecution

witnesses Antonio Montilla and Stephen Egos.  Due to the trial

court’s determination that the witnesses were credible, which is

upheld by this Court, this issue loses its basis.  Appellant’s

defense of alibi cannot stand. 

 

          The third issue raised by appellant is that “the lower court

gravely erred in failing to consider that there is no clear evidence

that the accused’s departure from Lorega, San Miguel was a flight

from the scene of the crime, and [in] ignoring the fact that the

accused returned to Lorega San Miguel in 1993, where he was

arrested in 1994.”  This Court agrees with appellant.  A careful

perusal of the transcript of stenographic notes reveals that there

is in fact no positive evidence of flight from the scene of the

crime.  However, since flight is neither an element of the crime of

murder nor a circumstance enumerated in the Revised Penal

Code, it would just have been an additional indication of guilt. 

The fact that there was no flight does not lessen the evidence on

record that sufficiently proves appellant’s guilt beyond reasonable

doubt.

 

          WHEREFORE, the decision of the Court of Appeals in CA-

G.R. CR No. 22947 is hereby AFFIRMED.  Costs de oficio.

 

SO ORDERED.

 

 ADOLFO S. AZCUNA

Associate Justice   

 WE CONCUR:    

HILARIO G. DAVIDE, JR.Chief Justice

Chairman         LEONARDO A. QUISUMBING   CONSUELO YNARES-SANTIAGO

Associate Justice                                            Associate Justice    

ANTONIO T. CARPIOAssociate Justice

   

 

 CERTIFICATION

           Pursuant to Section 13, Article VIII of the Constitution, it is

hereby certified that the conclusions in the above Decision were

reached in consultation before the case was assigned to the

writer of the opinion of the Court’s Division.                                                                      HILARIO G. DAVIDE, JR.                                                                                Chief Justice

 

 

 

[1]              Penned by Justice Rebecca De Guia-Salvador, and concurred in by Justice Candido V. Rivera (Acting Chairman of the Special Eleventh Division) and Justice Elvi John S. Asuncion.

[2]              Dated December 3, 1998.[3]               CA Rollo, pp. 5-6.[4]               Id. at 8.[5]               TSN, January 5, 1995, pp. 1-10.[6]               TSN, April 7, 1995, pp. 1-10.[7]               TSN, October 20, 1995,  pp. 1-5.[8]               TSN, December 8, 1995, pp. 1-5[9]               TSN, October 25, 1996, pp. 1-13.[10]             TSN, March 13, 1997, pp. 1-12 and TSN,  June 20, 1997, pp. 1-4.[11]             CA Rollo, p. 20.[12]             CA Rollo, pp. 99-105.[13]             CA Rollo, p. 82.[14]             CA Rollo, p. 89.[15]             People v. Almendral, G.R. No. 126025, July 6, 2004, 433 SCRA 440, 447;  People v.

Garin, G.R. No. 139069, June 17, 2004, 432 SCRA 394, 408.[16]             People v. Castillo, 330 Phil. 205 (1996).[17]             TSN,  April 7, 1995, pp. 9 -10.[18]             TSN,  May 10, 1995, p. 9.[19]             TSN, December 7, 1995, p. 4.[20]             People v. Castillo, 330 Phil. 205, 214 (1996), citing People v. Villaruel, G.R. Nos.

110803-04, 238 SCRA 408 (1994); People v. Gamboa, G.R. No. 91374, 194 SCRA 372 (1991).

  

  

FIRST DIVISION 

AVELLA GARCIA,                                  G.R. No. 128213Petitioner,

                                                                   Present:                                                                              DAVIDE, JR., C.J., (Chairman),          - versus -                                                    QUISUMBING,

                                                          YNARES-SANTIAGO,CARPIO, andAZCUNA, JJ.     

THE HONORABLE COURT OFAPPEALS  and THE PEOPLE OFTHE PHILIPPINES,                                  Promulgated:                             Respondents.                         December 13, 2005x-----------------------------------------------------------------------------------------x 

DECISION 

AZCUNA, J.: 

            In an Information dated March 18, 1992, petitioner Avella[1]  Garcia (Avella) was charged with Falsification of a Private Document, defined and penalized under Article 172 (2), in relation to Article 171 (6), of the Revised Penal Code.  The accusatory portion reads: 

That on or about the month of January, 1991 in Pasay City, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, Abella Garcia, being then in possession of a receipt for Five Thousand Pesos dated January 21, 1991 issued by one Alberto Quijada, Jr. as partial down payment [sic] of the sale of a house and lot situated at No. 46 P. Gomez St., Mandaluyong, Metro Manila by Albert Quijada, Jr. to accused, said accused then and there wilfully, unlawfully and feloniously and with intent to defraud and damage Alberto Quijada Jr [sic] made alterations and wrote words, figures and phrases to the original receipt which completely changed its meaning by making appear thereon that it was issued on January 24, 1991 in the amount of Fifty Five Thousand Pesos (P55,000.00) when in truth and in fact, the said accused fully well knew that the receipt was only for the amount of Five Thousand Pesos.

 Contrary to Law.[2]

 

 

            Upon arraignment, Avella pleaded not guilty and trial ensued.[3]

           The prosecution’s version of the relevant facts is summarized as follows:[4]

            Sometime in early October 1990, a verbal agreement was entered into between Alberto Quijada, Jr. (Alberto) and Avella for the sale of the former’s house and lot located at 46 P. Gomez St., Mandaluyong, Metro Manila for the purchase price of P1.2 million pesos.[5]  On October 23, 1990, an “earnest money” in the amount of ten thousand pesos (P10,000) was given to Alberto by Avella. On October 31, 1990, the amount of one hundred and fifty-five thousand pesos (P155,000) was delivered by Avella representing this time the downpayment for the house and lot.  A subsequent

payment of five thousand pesos (P5,000) was made on January 21, 1991. With respect to this last transaction, Avella prepared in her own handwriting two identical receipts which are faithfully reproduced below:[6]

                                                                                   January 21/91                                                                                    Pasay City             Received from Abella [sic] Garcia for the amount of five thousand pesos cash (P5,000.00) as additional downpayment for the purchase of the property located at 46 P. Gomez St. Mand. M. Mla. With an area of 308 sq. m. including the improvements existing there one [sic] covered by T.C.T. # 397670. The total purchase price for said sale One Million Two hundred thousand only 1.2 M.                                                                                     (Sgd.)                                                                        ALBERTO QUIJADA (Sgd.)ALICIA Q. GONZALES(SISTER) 

           The two receipts were signed by Alberto and his sister Alicia Q. Gonzales, as witness. One receipt was given to Alberto, while the other was retained by Avella.                 The relationship between buyer and seller turned sour. Avella filed a complaint for estafa against Alberto for his failure to execute a deed of sale and deliver the subject property. Among the evidence she submitted was the copy of the receipt she prepared on January 21, 1991.  However, the receipt appeared to have been altered in the following manner: 1) the word “fifty” was inserted before the word “five” on the second line of the receipt to read “fifty five thousand” instead of “five thousand”; 2) the number “5” was inserted before “5,000.00” on the third line of the receipt so that it would read “55,000.00”; 3) additional words were inserted in the last sentence of the receipt which reads, “Now covered by T.C.T. # 3998 R.D. Mandaluyong MM. the parties

agree to execute of [sic] valid deed of conveyance covering the same sale”; 4) on the date “January 21” the number 4 was superimposed so that it would read as “January 24” instead; and 5) there now appears the amount of “55,000.00” and below it the word “value” on the upper left hand corner of the receipt.[7]

           Thus, the receipt as altered now appears as follows:[8]

 55,000.00value

January 24/91                                                                                    Pasay City             Received from Abella Garcia for the amount of fifty five thousand pesos cash (P55,000.00) as additional downpayment for the purchase of the property located at 46 P. Gomez St. Mand. M. Mla. With an area of 308 sq. m. including the improvements existing there one covered by T.C.T. # 397670. The total purchase price for said sale One Million Two hundred thousand only 1.2 M. Now covered by T.C.T. # 3998 R.D. Mandaluyong MM. the parties agree to execute of [sic] valid deed of conveyance covering the same sale.                                                                                     (Sgd.)                                                                        ALBERTO QUIJADA (Sgd.)ALICIA Q. GONZALES(SISTER)  

           Having noticed the alterations, Alberto instituted a criminal action before the Office of the City Prosecutor of Pasay City charging that Avella had made it appear that he received P55,000 when he received only P5,000. Needless to state, the City Prosecutor found that a prima facie case of violation of Article 172 of the Revised Penal Code had been committed by Avella and accordingly filed the corresponding Information. 

          Avella, in her defense, admitted that she did in fact alter the receipt but claims that it was done in the presence and at the request of Alberto.  Her account is as follows:[9]

           On January 21, 1991, Alberto, along with his sister, came to Avella’s residence in Mandaluyong City to ask for additional downpayment for the house and lot. At that time she only had P5,000 in cash which she handed over to Alberto and then promised him a bigger sum in the future.  Avella then hand wrote two receipts which was signed by Alberto and his sister, as evidence of the payment of P5,000.  One receipt was her copy while the other was for Alberto. Three days later, on January 24, 1991, Avella called up Mr. Celso Cunanan (Celso), an architect, from whom she asked to borrow P50,000.  Celso had earlier committed to Avella that he would lend her P50,000.  Celso arrived at her house that evening to give her the money. Already present in the house were Avella, her sister and Alberto.  Celso delivered to Avella P50,000 which the latter, in the former’s presence, handed over to Alberto. With respect to the alteration, Avella explained that Alberto did not have with him his copy of the January 21, 1991 receipt and so he told her to just “add” in her copy the amount of P50,000 to make it P55,000.  Avella acceded to the request and made the changes in front of Alberto while he was counting the money. Avella said she showed the altered receipt to Alberto but that he was not able to affix his signature thereon because he was in a hurry to leave. Avella’s account was corroborated by the testimony of Celso who declared that all these happened in his presence.[10]

          Avella further claimed that this case was filed against her in retaliation for the estafa case she filed against Alberto. As claimed by Avella, she found out that the deed of sale which purportedly transferred ownership of the house and lot to Alberto was a fake. Upon her request, the National Bureau of Investigation (N.B.I.), Questioned Documents Division, examined the signatures of Mr. Floro Caceres and Mrs. Paciencia Castor Caceres, the transferees of the subject property, contained in the deed of sale. In its report

the N.B.I. determined that the questioned signatures and sample signatures of Floro Caceres and Paciencia Caceres were not written by one and the same person.[11]  In further support of this allegation, she presented an affidavit executed by Richard Hui Quijada, nephew of Alberto, who stated therein that he forged the signatures of the Spouses Caceres at the behest of his uncle.[12] Additionally, it was claimed that the notarization of the deed of sale was also fake according to a certification issued by the Office of the Clerk of Court for the Regional Trial Court of Manila stating that the lawyer who notarized it, Atty. Mallari, did not notarize any document for the month of April 1977, which was when the deed of sale was supposedly notarized.[13]

           The trial court found Avella’s account unworthy of belief. The court stated in its decision that if, by her claim, she made the changes in the receipt while Alberto was counting the money it would not have taken more than five (5) seconds to affix his signature thereon even if he was in a hurry to leave. The trial court, thus, held that the elements of Article 172 (2), in relation to Article 171 (6), of the Revised Penal Code have been proven beyond reasonable doubt and sentenced Avella to suffer imprisonment of Two (2) Years and Four (4) Months of arresto mayor, as minimum, to Six (6) Years of prision correccional, as maximum, and to pay a fine of Five Thousand (P5,000) pesos, plus costs.[14]

           Avella appealed to the Court of Appeals (CA).  The CA modified the penalty by lowering it, but affirmed the conviction.[15]  The CA was unconvinced by Avella’s explanations regarding the circumstances under which the alterations were made. Quoting at length the trial court’s findings, the CA declared that nothing therein would even remotely indicate that the conclusions were reached arbitrarily. The dispositive portion of the CA decision stated: 

          WHEREFORE, the appealed judgment is AFFIRMED but with the modification that the accused is hereby sentenced to suffer the indeterminate penalty of imprisonment ranging from a minimum of Four (4) months and One (1) day of Arresto Mayor, to Three (3) years, Six (6) months and Twenty-One (21) day of Prision Correccional as maximum, plus a fine of Three Thousand Pesos (P3,000.00) and costs. 

           Avella now comes before this Court through a Petition for Review under Rule 45 of the Rules of Court asking the Court to reevaluate the evidence presented so that the Court may accept as true her explanations to the alterations. 

The plea lacks merit and is denied. When the trial court’s factual findings have been affirmed by

the appellate court, said findings are generally conclusive and binding upon the Court, for it is not this Court’s function to analyze and weigh the parties’ evidence all over again, except when there is serious ground to believe a possible miscarriage of justice would otherwise result.  Save in exceptional instances, the Court’s task in an appeal via certiorari is limited to reviewing errors of law that might have been committed by the CA.[16]  Other than her plea to interpret the evidence in a different light, Avella failed to offer any cogent reason that would persuade this Court to alter the findings of the trial court and the CA, which findings are in agreement.           Nevertheless, while the Court will not touch upon the findings of fact, it should review the conviction to ensure that the law was properly applied.  Under this premise, the Court now moves on to consider whether errors of law have been committed.           The elements of the crime of falsification under Article 171 (6) of the Revised Penal Code are:  (1) that there be an alteration

(change) or intercalation (insertion) on a document; (2) that it was made on a genuine document; (3) that the alteration or intercalation has changed the meaning of the document; and (4) that the changes made the document speak something false.[17] When these are committed by a private individual on a private document the violation would fall under paragraph 2, Article 172 of the same code, but there must be, in addition to the aforesaid elements, independent evidence of damage or intention to cause the same to a third person.[18]

          Given the admissions of Avella that she altered the receipt, and without convincing evidence that the alteration was with the consent of private complainant, the Court holds that all four (4) elements have been proven beyond reasonable doubt. As to the requirement of damage, this is readily apparent as it was made to appear that Alberto had received P50,000 when in fact he did not.  Hence, Avella’s conviction.           The Court now considers the penalty imposed, as modified by the CA.  Article 172 punishes the crime of Falsification of a Private Document by a private individual with the penalty of prision correccional in its medium and maximum periods. Thus, the duration of imprisonment must be between two (2) years, four (4) months and one (1) day to four (4) years and two (2) months, this being the medium, and four (4) years, two (2) months and one (1) day to six (6) years, this being the maximum. There being no aggravating or mitigating circumstances, the medium period in the aforementioned range should be imposed, which is three (3) years, six (6) months and twenty-one (21) days to four (4) years, nine (9) months and ten (10) days. Taking into consideration the Indeterminate Sentence Law, the penalty next lower in degree is arresto mayor in its maximum period to prision correccional in its minimum period. The sentence of the CA was within these ranges.  The correct penalty was imposed.

 WHEREFORE, the petition is DENIED. Petitioner Avella

Garcia’s conviction in Criminal Case No. 92-0250

isAFFIRMED along with her sentence to suffer the indeterminate penalty of imprisonment ranging from four (4) months and one (1) day of arresto mayor as minimum to three (3) years, six (6) months and twenty-one (21) days ofprision correccional as maximum, and to pay a fine of Three Thousand Pesos (P3,000) and the costs.

           Cost de oficio in this instance.           SO ORDERED.  

ADOLFO S. AZCUNA                                                                          Associate Justice  

 WE CONCUR:

  

 HILARIO G. DAVIDE, JR.

Chief Justice                                                Chairman    LEONARDO A. QUISUMBING   CONSUELO YNARES-SANTIAGO              Associate Justice                                Associate Justice

    

ANTONIO T. CARPIO

Associate Justice

 

 

 

CERTIFICATION 

          Pursuant to Section 13, Article VIII of the Constitution, it is hereby certified that the conclusions in the above Decision were reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.                                                             HILARIO G. DAVIDE, JR.

                                                                   Chief Justice

[1]               Petitioner  also uses the first name Abella.[2]               Records, p. 18.[3]               Id. at 38.[4]               TSN, July 6, 1992 and August 25, 1992.[5]               The house and lot contained an area of more or less 308 square meters,

identified as Lot 38, Block 556 covered by T.C.T. No. 397670.[6]               Exhibit “C,” Records, p. 53.[7]               Exhibit “D,” Records, p. 54.[8]               Alterations are reflected in bold letters.[9]               TSN, December 8, 1992.[10]             TSN, March 2, 1993.[11]             Exhibit “12,” Records, p. 108.[12]             Exhibit “13,” Records, p. 110.[13]             Exhibit “10-A,” Records, p. 106.[14]             Presided by then Judge Conchita Carpio Morales, now a member of this Court.[15]             Penned by then CA Justice Consuelo Ynares-Santiago, now also a member of this

Court.[16]             Danofrata v. People, G.R. No. 143010, September 30, 2003, 412 SCRA 357.[17]             Republic v. Court of Appeals, L-41115, September 11, 1982, 116 SCRA 505.[18]             Mercury Drug Corporation v. NLRC, G.R. No. 96525, June 26, 1992, 210 SCRA 504.

FIRST DIVISION PEOPLE OF THE PHILIPPINES,               G.R. Nos. 148682-85

Appellee,                                                                 Present:

 DAVIDE, JR., C.J., (Chairman),                                                                          

- versus -                                          QUISUMBING,YNARES-SANTIAGO,CARPIO, andAZCUNA, JJ.

ANGEL A. ENFERMO,                              Appellant.                   Promulgated:                                                                             November 30, 2005x-----------------------------------------------------------------------------------------x 

DECISION 

AZCUNA, J.: 

          This case was certified to this Court, pursuant to Section

13, paragraph 2 of Rule 124 of the Revised Rules of Criminal

Procedure, by the Court of Appeals after reviewing the case on

appeal[1] and affirming with modification the decision of the

Regional Trial Court of Pasig City, Branch 158, which found

appellant guilty of two counts of Malversation through

Falsification of Public Documents and two counts of Malversation.[2]

 

          On October 25, 1996, the Office of the Ombudsman filed

with the Regional Trial Court of Pasig City, Metro Manila twelve

informations against appellant, Angel A. Enfermo, and Ferdinand

C. Entienza, both former employees of the National Research

Council of the Philippines (NRCP).[3]  Several of the cases filed

were dismissed for repeated failure of the prosecution to present

evidence.[4]  The motion for reconsideration of the order of

dismissal was denied.[5]  The NRCP through the Government

Corporate Counsel filed a petition for certiorari[6] with the Court of

Appeals questioning the dismissal and the denial of the motion for

reconsideration, which petition was denied by the Court of

Appeals in a resolution dated November 18, 1998.[7]  As a result of

the dismissal of those cases, the only ones that survived and were

tried in the Regional Trial Court were Criminal Cases Nos. 111086

and 111087 for Malversation through Falsification of Public

Documents and Criminal Cases Nos. 111089 and 111091 for

Estafa through Falsification of Public Documents, in which only

appellant, Angel A. Enfermo, was charged.

 

          The prosecution, in support of its charges, presented

evidence, as follows:

 

          Alejandro Rodanilla, Administrative Officer of the NRCP,

testified that appellant, Angel A. Enfermo, held the position of

Disbursing Officer II, Accounting Section, Finance and

Administrative Division of the NRCP.  His duties and

responsibilities as a disbursing officer are the following: “He

assist[s] the cashier in the preparation and the release of the

checks covering the financial transaction of the NRCP.  He also

assist[s] the cashier in encashing the checks for salaries of the

employees of NRCP.”[8]

 

          As testified to by Luz Acosta Aramil, Accountant III of NRCP,

sometime in 1993, it was discovered that the debit and credit

records of the checks issued and paid by its depositary bank,

Land Bank of the Philippines (LBP), did not balance.  The bank

reconciliation showed overstatements of P80,000, P60,000

and P60,000 for the months of June, July and November,

respectively.  An investigation disclosed that there were double

issuances of checks, which were covered by only one

disbursement voucher each.

 

          In Criminal Case No. 111086, the charge originated from

the double issuance of checks intended for Aurora Dacanay, a

researcher who was doing a study on pine shoot moth and tip

moth in the Benguet pine forest in the Cordillera.  On February

26, 1993, the NRCP issued an LBP check with Check No.

0000163230-BB to Dacanay in the amount of P38,446.13.[9]  This

check was duly supported by Disbursement Voucher No. 93-02-

95. The sum was the final release of an outright grant in

connection with an NRCP-assisted research project E-181, entitled

“Population Dynamics of Pine Shoot Moth and Tip Moth in Benguet

Pine Forest in the Cordillera.”[10]  The check was received and

encashed by Dacanay in Baguio City.[11]  However, on May 19,

1993, a second check with Check No. 0000026186-CC was issued

to Aurora Dacanay for the same amount of P38,446.13 and

supported by the same voucher as the first check. This second

check was encashed by appellant in the Parañaque branch of the

Land Bank of the Philippines by supposedly forging the signature

of the payee and signing his own name as an acknowledgement

of receipt of payment.[12]  Appellant received and misappropriated

the proceeds of the check.

 

          In Criminal Case No. 111087, again, the charge stemmed

from a double issuance of a check intended for Jose M. Bernaldez,

a Mathematics professor based in Mindanao State University

(MSU), Iligan City.  Check No. 0000096515-CC in the amount

of P30,000 was issued by the NRCP to Bernaldez, on August 13,

1993.[13]  The check was supported by Disbursement Voucher No.

93-5-591.  The amount paid was for an outright grant in

connection with the NRCP-assisted research project No. B-78,

entitled “On Regular Cyclically K-Complementary Graphs.”[14]  The

check was received and encashed by Bernaldez in Iligan City.[15] 

Again, as in the case of Aurora Dacanay, another check was

issued in the name of Jose M. Bernaldez with Check No.

0000026624-CC, which was not supported by a disbursement

voucher.[16]  Like the case of Dacanay, appellant encashed the

check at the Parañaque branch of the Land Bank of the

Philippines, by supposedly forging the signature of Bernaldez, and

signing his own name to acknowledge receipt of payment.[17] 

Appellant received and misappropriated the proceeds of the

check.

 

          The resident auditor of the Commission on Audit assigned

to the NRCP, Ma. Eugenia Rodil, testified to an audit report which

she prepared and submitted pursuant to the detection of the

anomalous transactions at the NRCP.  After her cash examination

revealed that there was a shortage, a fraud audit in the NRCP was

performed.  Rodil testified on the documentary evidence gathered

relating to the double issuance of checks to Dacanay and

Bernaldez.  In her investigation she discovered that the bank

statement did not tally with the Journal of Checks Issued, which

was prepared by Accountant III Aramil and the Report of Checks

Issued (RCI), which was prepared by the cashier.[18]

 

          With regard to Criminal Cases Nos. 111089 and 111091,

the prosecution presented Mary Christine Avanzado and Lanie P.

Manalo, employees of the NRCP, who both executed affidavits.[19] 

Avanzado testified that when she was claiming her salary as Clerk

I for the period of January 1–15, 1994, she was informed by

appellant that he had spent the money and would just pay her

back.[20]  In the case of Manalo, she did not receive her

productivity incentive pay in the amount of P2,000.  She then

confronted appellant regarding the amount, and the latter replied

that he had used it to pay a debt.[21]  Both Avanzado and Manalo

signed the payroll upon the promise of appellant that he would

return the money.[22]

 

          Appellant was convicted by the Regional Trial Court on all

four charges.  On appeal, the Court of Appeals affirmed the RTC

decision with modification, as follows:                       

Appellant contended that the prosecution failed to prove that he falsified the signature of the payee in LBP [Checks] Nos. 0000026186 (Dacanay) and 0000026624 (Bernaldez) in Criminal Case[s] Nos. 111086 and 111087 as it did not present the testimony of the NBI officer or handwriting expert who prepared the handwriting examination report.  Moreover, argued the appellant, if he really committed such forgery, then he should have at least imitated the signature of the payee; and since it was his signature which appeared on the dorsal portion of the questioned checks, he could not have forged his own signature.  Appellant also pointed out that the prosecution presented mere photocopies of the questioned checks, the originals thereof were

not submitted in evidence.  The trial court thus erred in convicting the accused in the absence of evidence that he misappropriated the proceeds of the subject checks.                         Such contentions are untenable.                         The crime charged in Criminal Case[s] Nos. 111086 and 111087 is malversation committed by means of falsification of public documents, the checks considered as public documents evidencing payment of obligation by the government out of public funds                         The crime of malversation of public funds is defined and penalized as follows: 

             ART. 217. Malversation of public funds or property.—Presumption of malversation – Any public officer who, by reason of the duties of his office is accountable for public funds or property, shall appropriate the same, or shall take or misappropriate or shall consent, or through abandonment or negligence, shall permit any other person to take such public funds or property wholly or partially, or shall otherwise be guilty of the misappropriation or malversation of such funds or property…. 

. . . The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal uses. 

The elements of malversation, essential for the conviction of an accused, under the above penal provision are that: 

(a)                                the offender is a public officer; (b)                               he has the custody or control of funds or

property by reason of the duties of his office; 

(c)                                the funds or property involved are public funds or property for which he is accountable; and

 (d)                               he has appropriated, taken or

misappropriated, or has consented to, or through abandonment or negligence permitted, the taking by another person of, such funds or property. (Rueda, Jr. v. Sandiganbayan, G.R. No. 129064, November 29, 2000.)

                         Anent the last element, our Supreme Court has ruled that to justify conviction for malversation of public funds, the prosecution has only to prove that the accused received public funds or property and that he could not account for them or did not have them in his possession and could not give a reasonable excuse for the disappearance of the same. (Estrada v. Sandiganbayan, G.R. No. 125160, June 20, 2000, citing People v. Pepito, 267 SCRA 358,368, See also Felicilda v. Grospe, 211 SCRA 285.)  An accountable public officer may be convicted of malversation even if there is no direct evidence of misappropriation and the only evidence is that there is a shortage in his accounts which he has not been  able to explain satisfactorily. (Navallo v. Sandiganbayan, 234 SCRA 175, 185; Villanueva v. Sandiganbayan, 200 SCRA 722, 734.)  Such conversion of public funds must be affirmatively proved, whether by direct evidence or by the production of facts from which conversion necessarily follows. (Bugayong v. People, 202 SCRA 762.)                         In the case at bar, We find that the prosecution has satisfactorily proved all the elements of the crime of malversation under Art. 217 of the Revised Penal Code.                                     Appellant did not give any explanation as to the shortage in the funds which have been traced to the double issuance of checks, the responsibility for which fell on the cashier (Entienza) and the disbursing officer (appellant).  His defense consisted of a mere denial that the signature appearing on the dorsal portion of the questioned checks was not his.  In his testimony, however, appellant did not categorically deny that said signature was his but that he could not remember whether it was his signature because it was a long time ago.  As to the authenticity of his signature appearing on said checks, upon the request of the NRCP, the NBI conducted a handwriting

examination of appellant’s signature appearing on the questioned checks together with specimen signatures of appellant taken from daily time records, and submitted a report thereon confirming that indeed, the same were written by (1) one and the same person.  While it is true that the prosecution did not present the testimony of the NBI officer or handwriting expert who conducted said examination, the signature of appellant appearing on the questioned checks was sufficiently established by the testimony of Luz Aramil who has sufficient familiarity with appellant’s signature, having worked with appellant who was under her supervision and had seen documents signed by him.  Such opinion of a non-expert on handwriting is authorized under Sec. 22, Rule 132 of the Rules of Court to prove genuineness of a handwriting.  A person is deemed to be acquainted with the handwriting of another where it is shown that, in the ordinary course of business, documents purporting to be written by that person have frequently come into his possession or under his scrutiny or have been habitually submitted to him. (Oscar M. Herrera, Remedial Law, Vol. VI, 1999 ed., p. 279, citing 3 Jones, p. 311.)  In Court Administrator v. Villanueva (223 SCRA 41),  our Supreme Court has ruled that resort to handwriting experts, while probably useful, is not mandatory nor indispensable in examining or comparing handwriting.  This is so since under Sec. 22, Rule 132, the handwriting of a person may be proved by any witness who believes it to be the handwriting of such person, because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, and has thus acquired knowledge of the handwriting of such person.  In view of the foregoing, it is clear that the testimony of the NBI handwriting expert who conducted the examination and submitted the report questioned by the appellant, is not indispensable in proving the authenticity of appellant’s signature on the questioned checks.                         Appellant also claimed that the prosecution failed to indubitably establish that it was he who actually falsified the signature of Aurora Dacanay and Jose M. Bernaldez and referred to the testimony of Aramil on cross-examination where the latter  could not definitely point to him as the one who signed the name of said payees on the checks.  Aramil’s testimony, however, only emphasized the point that such act of falsification committed by appellant can be conclusively presumed from the undisputed fact that he was the one who encashed the checks and received the proceeds thereof as evidenced by his signature acknowledging receipt of payment of said checks.  It has been held that in the absence of a satisfactory explanation, one found in

possession of and who used a forged document is the forger and therefore guilty of falsification. (Maliwat v. CA, 256 SCRA 718.)  Since it is obvious that the purported signatures of the payees in the questioned checks were not genuine signatures on the basis of visual comparison alone, it goes without saying that the person who encashed the same and received payment thereof is presumed to be the forger of said signatures.  Taken together with the circumstances that as disbursing officer, appellant was the one in charge of preparation, encashment and delivery of checks issued by the NRCP, the conclusion is inevitable that no other person other than appellant could have falsified the payees’ signature, encashed the questioned checks and misappropriated the proceeds thereof.  Being a public officer who had taken advantage of his official posisiton and falsified the signature of the payees of the questioned checks, appellant has committed falsification of public document defined and penalized under Art. 171, paragraph 1 of the Revised Penal Code.                         The totality of evidence indeed points to the appellant as the one responsible for the encashment of the questioned checks found to be irregularly issued.  His objection as to the documentary exhibits being mere photocopies is of no significance since during the hearings below, appellant’s counsel, upon request by the prosecution, had admitted that these are faithful reproduction[s] of the originals thereof, which original copies, however, have not been submitted to the trial court as they were being kept in custody by the Commission on Audit which had conducted its own investigation on the matter.  Besides, no such objection was raised by appellant in his “Comments/Objections to Prosecution[’]s Formal Offer of Evidence.”                         Coming now to the charges against the appellant in Criminal Case[s] Nos. 111089 and 111091, the respective information reads –                       Criminal Case No. 111089  

The undersigned Graft Investigation Officer I, Office of the Ombudsman accuses Angel A. Enfermo of the Crime ofEstafa through Falsification of Public  Document, defined and penalized under Article 315 paragraph 1 (b) in relation to Article

171 paragraph 1 and Article 48 of the Revised Penal Code committed as follows:

              That on or about January 15, 1994, and for sometime prior or subsequent thereto, in the Municipality of Taguig, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, above-named accused Angel A. Enfermo a public officer being then a Disbursing Officer of National Research Council of the Philippines (NRCP), Taguig, Metro Manila, taking advantage of his official position, did 

then and there, willfully, unlawfully and feloniously falsify NRCP Salary Payroll for the period January 1 to 15, 1994 by forging the signature of Marie Christine T. Avanzado, NRCP Accounting Clerk; and thereafter, with grave abuse of confidence, embezzle, misappropriate and convert to his personal use and benefit the salary in the amount of P978.24 pertaining to Ms. Avanzado, to the damage and prejudice of public interest and Marie Christine T. Avanzado.              CONTRARY TO LAW.

 Criminal Case No. 111091 

            The undersigned Graft Investigation Officer I, Office of the

Ombudsman accuses Angel A. Enfermo of the Crime ofEstafa through Falsification of Public  Document, defined and penalized under Article 315 paragraph 1 (b) in relation to Article 171 and Article 48 of the Revised Penal Code committed as follows:

              That on or about January 17, 1994, and for sometime prior or subsequent thereto, in the Municipality of Taguig, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, above-named accused Angel A. Enfermo a public officer being then a Disbursing Officer of National Research Council of the Philippines (NRCP), Taguig, Metro Manila, taking advantage of his official position, did then and there, willfully, unlawfully and feloniously falsify Productivity Incentive Payroll of NRCP for the year 1993 by forging the signature of Lanie P. Manalo, an employee of the NRCP; and thereafter, with grave

abuse of confidence, misappropriate and convert to his personal use and benefit the said Productivity Incentive of Ms. Manalo in the amount of P2,000.00 to the damage and prejudice of Lanie Manalo.              CONTRARY TO LAW. 

                        As shown above, the prosecuting officer designated the offense as Estafa Through Falsification of Public Document under Art. 315 paragraph 1(b) in relation to Art. 171, paragraph 1 and Art. 48 of the Revised Penal Code.  After evaluating the evidence adduced during the trial however, the lower court convicted the appellant of the crime of malversation defined and penalized under Art. 217 of the Revised Penal Code, stating that there was no falsification of public document involved as the appellant did not falsify the signatures of Avanzado and Manalo in the payroll since 

the latter two (2) themselves signed the same after appellant promised to return the money.  The lower court reasoned that said funds remain as public funds prior to their release to and receipt by the personnel entitled thereto, and hence by admitting that he had used the money representing the salary and productivity incentive bonus, respectively, of Avanzado and Manalo for his own benefit, appellant clearly committed an act of malversation in both cases.                         Appellant, on the other hand, argued that he could not be convicted of the crime charged in Criminal Case Nos. 111089 and 111091 since both Avanzado and Manalo testified that their signatures in the payroll were not falsified by the appellant.  Their signature on the payroll thus constitutes undeniable proof that there was transfer of ownership of said money from the government to the said employees.  Such money thereby became subject to the control of the said employees and it is perfectly within their rights to lend it and allow somebody to use their money.  In fact, appellant averred, it is a recognized practice among government employees and even in the private sector to just sign the payroll without actually receiving their money because others have borrowed it.  No money or property was taken from the government and hence no element of damage to the government was present.                         Appellant’s arguments are without merit. 

                        First, We shall pass upon the matter of the crime charged in the information and subsequent conviction of the appellant for a crime other than that designated by the prosecuting officer in said information.                         Although the caption or preamble of the information(s) charged the accused-appellant with estafa through falsification of public document, the crime committed was malversation.  It is settled that what controls is not the designation of the offense but the description thereof as alleged in the information. (Santos v. People, 181 SCRA 487, 492, citing early casesPeople v. Maravilla,165 SCRA 392; Socrates v. Sandiganbayan, 253 SCRA 773; People v. Sandoval, 254 SCRA 436, 452; People v. Aczon, 225 SCRA 237.)  The technical name given by the fiscal appearing in the title of the information does not determine the character of the crime but the facts alleged in the body of the information. (People v. Diaz, 320 SCRA 168, 175, citing Socrates v. Sandiganbayan, 253 SCRA 773, citing Reyes v. Camillon, et al., 192 SCRA 445.)  The real nature of the criminal charge cannot be determined from the caption or preamble of the information or from the mere reference to a particular provision of law alleged to have been violated because they are conclusions of law.  On the contrary, it is determined by the actual recital of facts in the complaint or information. (Ibid.; See also Pecho v. People, 262 SCRA 518, 528, citing Matilde v. Jabson, 68 SCRA 456.)  Thus, an incorrect caption is not a fatal mistake. (Ibid., citing U.S. v. Lim San, 17 Phil. 273.) For the rule is settled that it is ultimately the court which determines the nomenclature of the crime after the trial and following its own ascertainment of the facts needed to constitute the elements of the crime attributed to the accused. (Cinco v. Sandiganbayan, 202 SCRA 726, 733, citing People v. Eleuterio, 173 SCRA 243, 251.)                         As described in the information, the offense imputed to appellant Enfermo contains all the essential elements of malversation, to wit: (1) the offender is a public officer; (2) he has the custody or control of funds or property by reason of the duties of his office; (3) the funds or property involved are public funds or property for which he is accountable; and (4) he has appropriated, taken or misappropriated, or has consented to, or through abandonment or negligence permitted, the taking by another person of such funds or property.  So that even if appellant is correct in saying, and which was also the ruling of the trial court, that he had not committed falsification of public document since he did not falsify the signature of Avanzado and Manalo in the payroll, still he cannot escape criminal liability for

the act of malversation committed by him in taking, appropriating or misappropriating the payroll money intended for Avanzado and Manalo, for his own personal use and benefit.  Contrary to appellant’s theory, such funds remain as public funds prior to their release to and receipt by said Avanzado and Manalo, the persons entitled to receive the same.  His asseveration that it is a recognized practice among government employees and even in the private sector for employees to just sign the payroll without actually receiving the money because others have borrowed it, has no basis and does not justify his highly improper act.  Besides, in no way can it be considered that appellant had “borrowed” the questioned funds intended for Avanzado and Manalo when he had not first sought the permission of the two (2) before taking the money and using it for his personal benefit, as said employees even had to confront him for their non-receipt of said payroll money.  And even granting that he had priorly (sic) secured permission from said employees, it will not change the character of the payroll funds as public funds for as long as these have not yet been received by or released to the said employees.                         Clearly then, upon the foregoing facts and circumstances, the guilt of the accused-appellant for the crime of malversation in Criminal Case Nos. 111089 and 111091 has been proven beyond reasonable doubt.                         As to the penalties imposed by the trial court, We believe that the trial court erred in imposing the penalty of eighteen (18) years, eight (8) months and one (1) day of reclusion temporal minimum   to reclusion perpetua maximum in Criminal Case Nos. 111086 and 111087.  Art. 217, paragraph 4 of the Revised Penal Code, prescribes the penalty of reclusion temporal in its maximum period to reclusion perpetua.  In the light of Article 48 which provides that the penalty for a complex crime is the penalty for the most serious crime, the same to be applied in its maximum period, the proper penalty in this case is thereforereclusion perpetua, which remains as an indivisible penalty having no minimum, medium and maximum periods. (People v. Quitlong, 292 SCRA 360, 382, citing the Supreme Court’s Resolution of January 9, 1995 clarifying its decision in People v. Lucas, 310 Phil 77.)  Consequently, the Indeterminate Sentence Law  ( Act No. 4103, as amended) does not apply in this case in view of Section 2 thereof.  On the other hand, the penalty imposed in Criminal Case Nos.  111089 and 111091 should also be modified from eight (8) years and one (1) day to nine (9) years and four (4) months and one (1) day of prision mayor, to an indeterminate penalty of two (2) years, four (4) months and one

(1) day of prision correccional as minimum, to seven (7) years, four (4) months and one (1) day of prision mayor, as maximum, for each in accordance with Article 217 paragraph 2, the amount involved (P978.24 and P2,000.00) being more than P200.00 but does not exceed P6,000.00.                         WHEREFORE, premises considered, the present appeal is hereby PARTLY GRANTED. The appealed Decision in Criminal Case Nos. 111086, 111087, 111089, and 111091 is hereby MODIFIED as follows:                         1)         In Criminal Case No. 111086, accused Angel A. Enfermo is hereby sentenced to suffer the penalty ofreclusion perpetua together with the accessory penalties and to indemnify the National Research Council of the Philippines (NRCP) the amount of P38,446.13;                         2)         In Criminal Case No. 111087, accused Angel A. Enfermo is hereby sentenced to suffer the penalty ofreclusion perpetua, together with the accessory penalties and to indemnify the National Research Council of the Philippines (NRCP) the amount ofP30,000.00; 

3)         In Criminal Case No. 111089, accused Angel A. Enfermo is hereby sentenced to suffer the indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to seven (7) years, four (4) months and one (1) day of prision mayor, as maximum, together with its accessory penalties and to indemnify Christine Avanzado the amount of P978.24; and                         4)         In Criminal Case No. 111091, accused Angel A. Enfermo is hereby sentenced to suffer the indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to seven (7) years, four (4) months and one (1) day of prision mayor, as maximum together with its accessory penalties and to indemnify Lanie P. Manalo the amount of P2,000.00.[23]

 

          As mentioned above, the case was certified to this Court

pursuant to Section 13, paragraph 2 of Rule 124 of the Revised

Rules of Criminal Procedure. In a Supplemental Appellant’s Brief,

appellant raised the following Assignment of Error:

 THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE TRIAL COURT IN CRIMINAL CASE[S] NOS. 111086 AND 111087 AND IN IMPOSING THE PENALTY OF RECLUSION PERPETUA.[24]

  

          Appellant also adopted the arguments presented in

Appellant’s Brief[25] and the Supplemental Appellant’s Brief[26] filed

before the Court of Appeals.  The errors assigned in these briefs

are as follows:

 

          Appellant’s BriefI.         THE TRIAL COURT ERRED IN APPRECIATING THE

EVIDENCE OF THE PROSECUTION BUT DISREGARDED BASIC FACTS THAT WOULD HAVE BEEN SUFFICIENT TO ACQUIT THE APPELLANT.

 II.        THE TRIAL COURT ERRED IN CONVICTING THE APPELLANT

CONSIDERING THAT THERE WAS NO EVIDENCE THAT HE MISAPPROPRIATED THE PROCEEDS OF THE CHECKS.

  

          Supplemental Appellant’s Brief  

ITHE COURT A QUO ERRED IN FINDING THAT THE GUILT OF THE ACCUSED-APPELLANT IN CRIMINAL CASES NOS. 111086 AND 111087 HAS BEEN PROVEN BEYOND REASONABLE DOUBT. 

IITHE COURT A QUO ERRED IN CONVICTING THE ACCUSED-APPELLANT IN CRIMINAL CASE No. 111089. 

IIITHE COURT A QUO ERRED IN CONVICTING ACCUSED-APPELLANT IN CRIMINAL CASE NO. 111091. 

IVTHE COURT A QUO ERRED IN IMPOSING THE PENALTY OF RECLUSION [TEMPORAL MINIMUM TO RECLUSION] PERPETUA MAXIMUM IN CRIMINAL CASES NUMBERS 111086 AND 111087 ON THE ASSUMPTION THAT ACCUSED-APPELLANT IS GUILTY OF THE CRIME CHARGED. 

VTHE COURT A QUO ERRED IN IMPOSING THE PENALTY OF EIGHT (8) YEARS AND ONE (1) DAY TO NINE (9) YEARS AND FOUR (4)  MONTHS AND ONE (1) DAY OF PRISION MAYOR IN CRIMINAL CASES NUMBERS 111089 AND 111091 ON THE ASSUMPTION THAT ACCUSED-APPELLANT IS GUILTY OF THE CRIME CHARGED.

         

         

          For clarity, the issues as culled from the arguments of

appellant in the briefs filed before this Court and the Court of

Appeals may be restated thus:

 1.                  IN CRIMINAL CASES NOS. 111086 AND 111087, WHETHER

THE CHECKS WERE ACTUALLY IN THE POSSESSION OF APPELLANT.

 2.                  IN CRIMINAL CASES NOS. 111086 AND 111087, WHETHER

IT WAS PROVEN THAT THE SIGNATURES ON THE TWO CHECKS WERE THOSE OF APPELLANT.

 3.         IN CRIMINAL CASES NOS. 111086 AND 111087, WHETHER

APPELLANT FALSIFIED THE SIGNATURES OF           DACANAY AND BERNALDEZ.

 4.         IN CRIMINAL CASES NOS. 111086 AND 111087, WHETHER

PHOTOCOPIES OF THE CHECKS ARE       ADMISSIBLE AS EVIDENCE.

 5.         IN CRIMINAL CASES NOS. 111089 AND 111091, WHETHER

THE FUNDS TAKEN BY APPELLANT WERE PUBLIC FUNDS. 6.         IN CRIMINAL CASES NOS. 111086 AND 111087, WHETHER

THE TRIAL COURT WAS CORRECT IN IMPOSING             THE PENALTY OF RECLUSION TEMPORAL MINIMUM     TO RECLUSION PERPETUAMAXIMUM.

 

7.         IN CRIMINAL CASES NOS. 111089 AND 111091, WHETHER THE TRIAL COURT WAS CORRECT IN           IMPOSING THE PENALTY OF EIGHT (8) YEARS AND ONE     (1) DAY TO NINE (9) YEARS AND FOUR (4) MONTHS AND ONE (1) DAY OF PRISION MAYOR.

 

          The first, second, and third issues will be discussed

together.   Although it is true that the prosecution did not present

any direct evidence that appellant effected the falsification, such

is a disputable presumption arising from the facts of the case. 

In Maliwat v. CA, cited by the Court of Appeals, this Court said –

                         The settled rule is that in the absence of satisfactory explanation, one found in possession of and who used a forged document is the forger and therefore guilty of falsification. (Pecho v. Sandiganbayan, 238 SCRA 116 citing Alarcon v. CA, 125 Phil. 1110 [1967], People v. Cu Unjieng, 61 Phil 906 [1935]; People v. Lotegro, 50 O.G. No. 2632; People v. Dala, 50 O.G. 612675;People v. Manansala, L-13142, 30 June 1959; People v. Caragao, 30 SCRA 993; Caubong v. People, 210 SCRA 377). 

                        If a person had in his possession a falsified document and he made use of it (uttered it), taking advantage of it and profiting thereby, the clear presumption is that he is the material author of the falsification. (U.S. v. Castillo, 6 Phil. 453;People v. de Lara, 45 Phil. 754 ; People v. Domingo, 49 Phil. 28; People v. Astudillo, 60 Phil. 338; People v. Manansala, cited in People v. Sandaydiego, 81 SCRA 120 [1978].).[27]

 

          By mere comparison with the signatures of Dacanay and

Bernaldez in the checks that they had actually signed, Check No.

00000163230-BB[28] and Check No. 0000096515-CC[29], it was

proven that the signatures in the other two checks, Check No.

0000026186-CC[30] and Check No. 0000026624-CC[31], were

falsified.  Furthermore, it is indisputable that said checks were in

the possession of appellant, as proven by the fact that he was the

Disbursing Officer; and that possession of such checks was within

his functions.  Also, the fact that his signatures appeared at the

back of the checks further proves that he was in possession of

them, that he was the one who presented them for payment, and

that he received their proceeds and therefore used and profited

by such checks.  Since he could not adequately explain the

foregoing facts, the presumption defined in Maliwat v. CA applies.

He is therefore presumed to be the forger of the signatures of

Dacanay and Bernaldez.

 

          Appellant’s contention that the NBI report on the signature

of appellant is not admissible since the officer who prepared the

report was not presented to testify on the report’s authenticity or

contents need not be resolved because the authenticity of

appellant’s signature on the two checks does not depend upon it

since such was proven by the testimony of Luz Aramil, who was

familiar with the signature of appellant.[32]

 

          As to the fourth issue, regarding the admissibility of the

photocopies of the checks in Criminal Cases Nos. 111086 and

111087, this Court finds that they are admissible because

appellant did not raise this question in his Comments/Objections

to Prosecution’s Formal Offer of Evidence.[33]  Appellant is

therefore deemed to have accepted the photocopies as

admissible.

 

          With regard to the fifth issue, the funds taken by appellant

in Criminal Cases Nos. 111089 and 111091 are public in nature. 

He claims that Avanzado and Manalo signed their names, which

signified that they had already received the money and therefore

the money had already become private in character.  From the

testimony of Avanzado and Manalo, it is plain that appellant took

the money prior to their signing the payrolls.  In Director of

Commerce and Industry v. Concepcion, a case penned by Justice

Malcolm, this Court held:

                         A rule, which has never been seriously questioned, is that money in the hands of public officers, although it may be due government employees, is not liable to the creditors of these employees in the process of garnishment. One reason is, that the State, by virtue of its sovereignty, may not be sued in its own courts except by express authorization by the Legislature, and to subject its officers to garnishment would be to permit indirectly what is prohibited directly. Another reason is that money sought to be garnished, as long as they remain in the hands of the disbursing officer of the Government, belong to the latter, although the defendant in garnishment may be entitled to a specific portion thereof. And still another reason which covers both of the foregoing is that every consideration of public policy forbids it.                         The United States Supreme Court, in the leading case of Buchanan vs. Alexander ([1846], 4 How., 19), in speaking of the right of creditors of seamen, by process of attachment, to divert the public money from its legitimate and appropriate object, said: 

"To state such a principle is to refute it. No government can sanction it. At all times it would be found embarrassing, and under some circumstances it might be fatal to the public service. . . . So long as money remains in the hands of a disbursing officer, it is as much the money of the United States, as if it had not been drawn from the treasury. Until paid over by the agent of the government to the person entitled to it, the fund cannot, in any legal sense, be considered a part of his effects." (See, further, 12 R. C. L., p. 841; Keene vs. Smith [1904], 44 Ore., 525; Wild vs. Ferguson [1871], 23 La. Ann., 752; Bank of Tennessee vs. Dibrell [1855], 3 Sneed [Tenn.], 379.) [34]

 

 

Hence, the money was public in nature since it had not yet been

received by Avanzado and Manalo when appellant took it.

 

          As to the sixth issue, the penalty imposed by the RTC is

wrong.  Article 217, paragraph 4 of the Revised Penal Code

imposes the penalty of reclusion temporal in its maximum period

to reclusion perpetua when the amount malversed is greater

than P22,000.  Since appellant committed a complex crime, the

penalty for the most serious crime shall be imposed in its

maximum period, pursuant to Article 48 of the Revised Penal

Code.  In this case the penalty imposed should be reclusion

perpetua. Since the Indeterminate Sentence Law does not apply

to indivisible penalties,[35] and reclusion perpetua is an indivisible

penalty,[36] the Indeterminate Sentence Law cannot be applied to

the penalty in Criminal Cases Nos. 111086 and 111087.

 

          For the seventh and last issue, Article 217, paragraph 2 of

the Revised Penal Code[37] applies to the penalties in Criminal

Cases Nos. 111089 and 111091 since the amounts malversed

were P978.24 and P2,000.  Since there are no aggravating or

mitigating circumstances, the medium range of the penalty

prescribed in Article 217, paragraph 2 of the Revised Penal Code

(the penalty prescribed is prision mayor in its minimum and

medium periods) is where the maximum of the indeterminate

sentence can be placed.  The minimum penalty should be taken

from the penalty next lower to that prescribed by the Code.[38]  No

error was committed on this point.  The court a quo placed the

minimum and maximum of the indeterminate sentence well within

the ranges prescribed.  

 

          WHEREFORE, the Decision of the Court of Appeals in CA-

G.R. No. 23001 is AFFIRMED in toto, as follows:

 

          1)      In Criminal Case No 111086, appellant Angel A.

Enfermo is hereby sentenced to suffer the penalty ofreclusion

perpetua together with the accessory penalties, and to indemnify

the National Research Council of the Philippines (NRCP) in the

amount of P38,446.13;

 

          2)      In Criminal Case No. 111087, appellant Angel A.

Enfermo is hereby sentenced to suffer the penalty ofreclusion

perpetua, together with the accessory penalties, and to indemnify

the National Research Council of the Philippines (NRCP) in the

amount of P30,000;

 

          3)      In Criminal Case No. 111089, appellant Angel A.

Enfermo is hereby sentenced to suffer the indeterminate penalty

of two (2) years, four (4) months and one (1) day of prision

correccional, as minimum, to seven (7) years, four (4) months and

one (1) day of prision mayor, as maximum, together with its

accessory penalties and to indemnify Christine Avanzado in the

amount of P978.24; and

 

4)                In Criminal Case No. 111091, accused Angel A.

Enfermo is hereby sentenced to suffer the indeterminate penalty

of two (2) years, four (4) months and one (1) day of prision

correccional, as minimum, to seven (7) years, four (4) months and

one (1) day of prision mayor, as maximum, together with its

accessory penalties, and to indemnify Lanie P. Manalo in the

amount of P2,000.

 

 Costs de oficio.

 

SO ORDERED.

 

 ADOLFO S. AZCUNA

Associate Justice 

WE CONCUR:   

HILARIO G. DAVIDE, JR.Chief Justice

Chairman    LEONARDO A. QUISUMBING   CONSUELO YNARES-SANTIAGO

Associate Justice                                           Associate Justice    

ANTONIO T. CARPIOAssociate Justice

    

CERTIFICATION 

          Pursuant to Section 13, Article VIII of the Constitution, it is

hereby certified that the conclusions in the above Decision were

reached in consultation before the cases were assigned to the

writer of the opinion of the Court’s Division.                                                                      HILARIO G. DAVIDE, JR.                                                                                Chief Justice

 

    

 

[1]              CA-G.R. CR No. 23001, decided by Justice Martin S. Villarama, Jr. and concurred in by Justices Conrado M. Vasquez, Jr. and Sergio L. Pestaño.

[2]              Criminal Cases Nos. 111086, 111087, 111089 and 111091.[3]               Records, pp. 1 – 37.[4]               Records, p. 180.[5]               Records, p. 233.[6]               CA-G.R. SP 47923, Records, pp. 250-263.[7]               Records, pp. 316-318.[8]               TSN, August 20, 1997, pp. 2-4.[9]               Exhibit “D-2-a,”Folder of Exhibits, p. 34.[10]             Exhibits “D-2-e,” “D-2-g,” “D-2-h” and “D-2-I,” Folder of Exhibits, pp. 36- 39.[11]             Exhibit “D-2-b,” Folder of Exhibits, p. 34.[12]             Exhibits “A,” “A-1” and “A-2,” Folder of Exhibits , pp. 12 -13.[13]             Exhibit “C” (“D-1-c”), Folder of Exhibits, p. 16 (19).[14]             Exhibits “D-1-g,” “D-1-h,” “D-1-i” and “D-1-l,” Folder of Exhibits, pp. 22-24 and 27.[15]             Exhibit “D-1-d,” Folder for Exhibits, p. 19.[16]             Exhibit “B” (“D-1-a”), Folder of Exhibits, p. 14 (18).[17]             Exhibit “B-1” (“D-1-b”), Folder of Exhibits, p. 15 (18).[18]             TSNs, September 17, 1997, pp. 2-15; November 10, 1997, pp. 4-5.[19]             Exhibits “A” and “B,” Folder of Exhibits, pp. 50-51.[20]             TSN, August 13, 1997, pp. 19 and 22.[21]             Id. at  25-26.[22]             Id. at  28-29.[23]             CA Decision, Rollo, pp. 36-42.  Emphasis supplied.[24]             Rollo, p. 13.[25]             CA Rollo, pp. 50-67.[26]             CA Rollo, pp. 101-113.[27]             G.R. Nos. 107041-42, 326 Phil. 732, 749-750 (1996).[28]             Exhibits “A,” “A-1” and “A-2,” Folder of Exhibits, pp. 12-13.[29]             Exhibit “D-1-c,” Folder of Exhibits, p. 19.[30]             Exhibits “A,” “A-1” and “A-2,” Folder of Exhibits, pp. 12-13.[31]             Exhibits “D-1-a” and “D-1-b,” Folder of Exhibits, p. 18.

[32]             ATTY. IBAYQ-                  And you mentioned Mr. Enfermo signed the checks.  Why do you know the

signature of Mr. Enfermo?  Are you familiar with the signature of Mr. Enfermo?A-                  Yes, sir.Q-                  Why are you familiar with the signature of Mr. Enfermo?A-           Because he was our disbursing officer, [S}ir. (Witness Luz Aramil, TSN,

August 13,  1997, p. 12.)[33]             Records, pp. 238-243.[34]             43 Phil. 384, 386-387 (1922); emphasis supplied.[35]             People v. Roque, G.R. No. 53470, 192 Phil. 398 (1981).[36]             People v. Quitlong, G.R. No. 121562, 354 Phil. 372 (1998)[37]             Article 217. Malversation of public funds or property. --                                …

2.       The penalty of prision mayor in its minimum and medium periods, if the amount involved is more than 200 pesos but does not exceed 6,000 pesos.

[38]             Indeterminate Sentence Law, Section 1 (Act No 4103).  In this case, prision correccional in its medium and maximum periods, or from 2 years, 4 months and 1 day to 6 years, is the range where the minimum penalty can be placed.

FIRST DIVISION

[G.R. No. 116326.  April 30, 2003]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROBERT LEE, ET AL., accused-appellant.

D E C I S I O N

AZCUNA, J.:

This is an appeal from a decision of the Regional Trial Court, Branch 9, of Malolos, Bulacan, finding appellant guilty of robbery with homicide and sentencing him to a penalty of reclusion perpetua.

The facts of record are as follows:

Private complainant Belen Portugal-Legaspi, in the pursuit of her jewelry business, usually commuted in her car between the family residence in Saluysoy, Meycauayan, Bulacan and the BLG Jewelry Store that she owned and managed at P. Paterno St., Quiapo, Manila.[1]

At about 7:00 p.m. of February 21, 1990, Mrs. Legaspi and her salesgirl, Flordeliza Francisco, were aboard her car, driven by her only son, Joselito, on their way from Quiapo to Saluysoy.[2]

In their green-colored Ford Laser car, Mrs. Legaspi was seated in front beside her son, while Ms. Francisco occupied the backseat alone.[3]

Not long after the said car entered the Meycauayan exit of the North Expressway, while it was cruising along the street leading to the St. Francis Subdivision in Malhacan, Meycauayan, a white old-model Toyota Corona sedan rammed it from behind, immediately overtook it, and finally blocked its path. [4]  Four men (three with drawn handguns and one clutching a long firearm) thereupon alighted from the Toyota sedan, while two others remained therein.[5]

Joselito backed up the Ford Laser car but it slammed against the concrete wall of a nearby textile factory and got stalled in that position. [6]The four men rushed to the car of the Legaspis.

One of the men stood by the Ford Laser’s car door near the driver’s seat and, in quick succession, fired his handgun once in the air, then to the ground and, finally, at Joselito.  Then he made a quick turn round the front of the Ford Laser, opened the right front door and forcibly positioned himself beside Mrs. Legaspi.[7]

Another man shoved Joselito towards the middle portion of the front seat and took over the steering wheel.[8]

The other two men occupied the back seat to the left and right of Ms. Francisco. [9]

With the Toyota Corona sedan following closely behind, the Ford Laser was driven along the intended route of the Legaspis over a distance of one kilometer or so, up to a dumpsite in front of a church under construction.  There, having already divested Mrs. Legaspi of her personal valuables and taken two bags containing assorted pieces of jewelry worth about P3 Million, and P65,000.00 in cash, the armed men abandoned the Ford Laser, boarded their Toyota Corona sedan and in no time sped away.[10]

Finding the wounded Joselito already lifeless, Mrs. Legaspi hailed a passenger jeepney and, aboard the same, rushed him to the Nazareno Clinic where he was pronounced dead on arrival.[11]

Dr. Benito B. Caballero, Municipal Health Officer of Bocaue, Bulacan, at the request of the PNP-Meycauayan, conducted the autopsy of the cadaver at 8:30 p.m. of February 21, 1990 at the Meycauayan Funeral Homes.[12]

He issued a certificate, stating the cause of Joselito P. Legaspi’s death as:  “Shock due to massive external and internal hemorrhage due to gunshot wound in the chest penetrating both lungs and heart.”[13]

At the time of his death, Joselito was 21 years old, single, and a college student.  The family of the deceased incurred expenses in the amount of P60,000.00 for his wake and P20,000.00 for the funeral service.[14]

On April 20, 1990, Robert Lee, Edmundo Rivera, Igmedio del Mundo, Angelito Orosco and Wilfredo Alcantara were charged by the Provincial Prosecutor of Bulacan with the crime of Robbery with Homicide penalized under par. 1, Article 294 of the Revised Penal Code.

The Information, filed with the Regional Trial Court of Malolos, Bulacan, reads as follows:

“That on or about the 21st day of February, 1990, in the municipality of Meycauayan, province of Bulacan, Philippines, and within  the  jurisdiction  of  this Honorable Court, the above-named accused together with other persons who are still at large and against whom the preliminary investigation has not yet been completed, conspiring, confederating and mutually helping one another, armed with unlicensed firearms such as long firearm and handguns, did then and there willfully, unlawfully and feloniously, with intent of gain and by means of force, violence and intimidation, take, rob and carry away with them cash money in the sum ofP65,000.00 and several pieces of jewelry valued at P3,000,000.00 belonging to one Belen Legaspi; to the damage and prejudice of the owner, said Belen Legaspi in the total amount of P3,065,000.00; and on the occasion of the commission of the said robbery in band, the said accused with intent to kill one Joselito Legaspi; did then and there wilfully, unlawfully and feloniously in furtherance of their conspiracy, with evidence premeditation and treachery, attack, assault and shot with the said firearm the said Joselito Legaspi, hitting the latter at his chest which directly caused his death.

The aggravating circumstance of use of a motor vehicle is present in the commission of this offense.”[15]

On May 17, 1990, Robert Lee and Eduardo Rivera were arraigned and they pleaded, “not guilty.”  Trial proceeded as to these two, as the other accused were then at large.

On February 18, 1991, Angelito Orosco was arrested and subsequently brought to the trial court.  He also pleaded, “not guilty” upon being arraigned.

After trial, on April 22, 1993, the Regional Trial Court found all the three abovementioned accused guilty as charged, stating in the dispositive portion of its decision, thus:

WHEREFORE, premises considered, judgment is hereby rendered finding accused ROBERT LEE y MANUTA of Antipolo, Rizal    EDUARDO   RIVERA y DELA CRUZ alias “Eddie” of Bagbaguin, Meycauayan, Bulacan and ANGELITO OROSCO y SINCABAN of Pulong Buhangin, Sta. Maria, Bulacan guilty beyond reasonable doubt as co-principals by conspiracy of the crime of Robbery in Band with Homicide as charged in the Information and sentencing each of them to suffer the penalty of reclusion perpetua with all the accessories prescribed by law; and ordering them to jointly pay unto the heirs of the late Joselito P. Legaspi the amounts of P50,000.00 as indemnity for the fact of his death, P80,000.00 as expenses for the traditional wake and funeral services for the aforenamed victim,P50,000.00 as moral damages, P30,000.00 as exemplary damages, and unto Mrs. Belen Portugal-Legaspi the amount of P3,065,000.00 representing the value of the pieces of assorted jewelry and cash subject-matter of the robbery, deducting therefrom the undetermined value of the few jewelry items subsequently recovered and delivered to her.

SO ORDERED.[16]

From said decision, only the accused Angelito Orosco appealed.

Appellant assigned the following as errors:[17]

1. THE TRIAL COURT ERRED IN NOT EXCLUDING THE EVIDENCE OF THE PROSECUTION FOR HAVING BEEN TAKEN AS A RESULT OF WARRANTLESS ARRESTS AND IN CONTRAVENTION OF THE SEARCH WARRANT ISSUED.

2. THE TRIAL COURT ERRED IN ADMITTING THE EVIDENCE OF THE PROSECUTION, CONSISTING OF THE ALLEGED CONFESSIONS OF ACCUSED ROBERT LEE AND EDUARDO RIVERA, INSPITE OF THE FACT THAT THEY WERE TAKEN IN VIOLATION OF THEIR CONSTITUTIONAL RIGHTS.

3. THE TRIAL COURT ERRED IN GREATLY RELYING UPON THE PURPORTED IDENTIFICATION OF THE ACCUSED-APPELLANT ANGELITO OROZCO MADE BY PROSECUTION WITNESSES BELEN LEGASPI AND FLORDELIZA FRANCISCO INSPITE OF THE FACT THAT THEY ARE UTTERLY UNRELIABLE.

4. THE TRIAL COURT ERRED IN CONVICTING ACCUSED APPELLANT ANGELITO OROZCO.

Appellant first argues that the extrajudicial confessions of his co-accused, Robert Lee and Eduardo Rivera, should be excluded because said persons were arrested without arrest warrants.

Appellee, through the Solicitor General, replies that arrest without warrant and custodial investigation are two different concepts, subject to separate requisites, so that the invalidity of a warrantless arrest does not per se make the confessions taken during the custodial investigation inadmissible in evidence.   Accordingly, appellee submits that even assuming that the aforementioned co-accused were unlawfully arrested without warrants, the same will not affect the extrajudicial confessions signed by them during custodial investigation.  The confessions, appellee points out, were taken freely and voluntarily, without any duress.  The persons investigated were duly informed of their rights to remain silent and to counsel.  They were in fact ably represented by Atty. Dale Dick Liban of the Citizens Legal Assistance Office during said custodial investigation.

The Court finds it unnecessary to resolve the foregoing issue.  For independently of the extrajudicial confessions, the prosecution’s evidence establishes beyond reasonable doubt the guilt of appellant.

From the testimony of Belen Portugal-Legaspi, there is no question that appellant shot and killed her son that fateful early evening of February 21, 1990, in the course of an armed robbery, thus:

Q    What part did Angelito Orosco have in the commission of that offense that you have described?

A     He was the one who shot my son, sir.

Q    Where was Orosco whom you have pointed to the court now when he shot your son?

A     He was outside on the street and beside the driver’s seat where my son is situated.

Q    On which side of the car?

A     Left side (Witness indicating her left side)

Q    How far exactly from the car was him when he shot your son?

A     He was very near.

Q    How far?

A     Less than a meter.

Q    You said that your son was the one driving the car.  Now, will you kindly tell the Court the position of Orosco in relation to your son when your son was shot?

A     Orosco was beside the window near the driver’s seat.

Q    At the time according to you Orosco shot your son, who were the persons, if any, in the front seat of the car?

A     My son and me.

Q    In your previous testimony you referred to a person who sat beside you, at what moment did this person sit beside you inside the car?

A     After my son was shot.

Q    What did he do?

A     Nothing except that he sat beside me after my son was shot.

Q    After Orosco shot your son can you tell the Court where he went?

A     He was the person who sat beside me, actually, he went around the car and sat beside me and somebody pushed my son and that somebody drove the car.[18]

Appellant would, however, fault this eyewitness on two grounds:  (1) she could not have seen the assailant’s face, as it was dark; and (2) her testimony is not consistent as to who drove the car and who shot her son, and further differs from that of Flordeliza Francisco.

On the first point, Mrs. Legaspi testified that the road was lighted and that there were lights coming from the houses around the area and from the vehicles traveling on the road, and said lights enabled her to see and identify the perpetrators of the crime.

She testified, thus:

COURT:

Q    Let’s go back to the scene of the crime or where your son was shot by the assailants, was that area lighted at the time considering that it was already night-time?

A     Yes, sir.

Q    The place was lighted with what?

A     The road is lighted and that road is being used by vehicles.

Q    Aside from that street lamp, were there other sources of light in the premises?

A     There are, the lights coming from the houses around there.

Q    Was that a residential area or a commercial area?

A     A sort of combination, residential and commercial area and there are many vehicles passed (sic) that way.

x x x                      x x x                 x x x

Q    Now, you answered the Court that when the incident took place on February 21, 1990 the place was lighted, do you recall the time when this incident took place?

A     More or less, 7:00 o’clock in the evening.

Q    And some of the commercial places which you said were lighted were already closed at 7:00 o’clock, is it not?

A     Yes, sir.

Q    And the only light that illumines the place is the light of the electric post?

A     Aside from that, the lights from the incoming vehicles and also the lights from residential houses.[19]

Furthermore, on cross-examination, Mrs. Legaspi maintained the same point:

x x x                      x x x                 x x x

Q    Madam witness, from the time that your car was bumped from behind by the car of the holduppers you will agree with me that no light inside your car was on at that very moment,

A     Yes, sir.  Seldom do car-owners light their lights inside the car.

Q    That is true also at the time the four holduppers entered or boarded your car, is it not?

A     But it was brightly illuminated by the coming vehicles.

Q    My question is, no light inside your car was on at that time.

A     There was no light actually inside the car but it was bright in that particular place, I could easily see them.

Court:

Q    By the way, did the Court get you right when you declared that it was Angelito Orosco who shot your late son?

A     Yes, Your Honor.  He was the one.

Q    Prior to that incident have you ever known or seen the accused Angelito Orosco?

A     No, Your Honor.

x x x                      x x x                 x x x.[20]

As correctly noted by appellee, the Court has held that the light from the stars, [21] or the moon,[22] or flames from an oven,[23] or a wick lamp or“gasera,”[24] can give ample illumination to enable a person to identify or recognize another.    Clearly, therefore, lights from street lamps, houses and passing cars are sufficient to enable the eye- witness to identify the appellant.

Regarding the second point, on the alleged inconsistencies, the same are minor in nature and do not detract from the credibility of the witnesses.  Besides, Mrs. Legaspi never wavered on the point that it was appellant herein, Angelito Orosco, who shot and killed her son.  She only erred in first saying that he also drove their car, but later she corrected herself on this point.  Similarly, Flordeliza Francisco, who was seated at the back, thought it was appellant who drove the car.  As stated, these are minor inconsistencies that do not affect the thrust of the testimony of Mrs. Legaspi that appellant shot and killed her son.

The award of damages are correct and in accordance with law and the evidence, except the award of P80,000 for wake and funeral expenses.  This was not supported

by receipts and therefore cannot be granted. [25]  However, an award of P25,000 for temperate damages may be allowed, under Article 2224 of the Civil Code, [26] since the fact of having incurred expenses for such purposes is incontrovertible.[27]

WHEREFORE, the decision of the court a quo is hereby AFFIRMED, with the MODIFICATION that the award of P80,000 for wake and funeral expenses is SET ASIDE but an award of P25,000 as temperate damages is GRANTED.  Costs de oficio.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Vitug, Ynares-Santiago, and Carpio, JJ., concur.

[1] TSN, 15 October 1990, pp. 22-24.

[2] Ibid, pp. 16-24; TSN, 1 February 1991, p. 6.

[3] Ibid, p. 7.

[4] Ibid, pp. 17-18.

[5] Ibid, pp. 18, 25.

[6] Ibid, p. 18.

[7] Ibid, pp. 19-20.

[8] Ibid, p. 26.

[9] Ibid, p. 27.

[10] Ibid, pp. 30-32.

[11] Ibid, pp. 34-35.

[12] TSN, March 15, 1991, pp. 10-11.

[13] Exhibit A, RTC Records, p. 189.

[14] Ibid, pp. 41-42 and 45.

[15] Records, p. 1.

[16] Decision, pp. 20-21; Rollo pp. 38-39.

[17] Appellee’s Brief, pp. 4-5; Rollo, p. 105.

[18] TSN, October 18, 1991, pp. 13-16.

[19] TSN, Ibid, pp. 72-73.

[20] TSN, November 20, 1991, pp. 44-45

[21] People v. Vacal, 27 SCRA 24 (1969).

[22] People v. Pueblas, 127 SCRA 746 (1984).

[23] People v. De la Cruz, 147 SCRA 359 (1987).

[24] People v. Aboga, 147 SCRA 404 (1987).

[25] People v. Plazo, 350 SCRA 433 (2001); People v. Go-od, 331 SCRA 612 (2000).

[26] Art. 224 of the Civil Code provides:  “Temperate or moderate damages, which are more than nominal but less than compensatory damages, may be recovered when the court finds that some pecuniary loss has been suffered but its amount can not, from the nature of the case, be proved with certainty.”

[27] People v. Sumibcay , G.R. Nos. 132130-31 , May 29, 2002; People v. Plazo, supra, see note 25.

FIRST DIVISION

[G.R. No. 120721.  February 23, 2005]

MANUEL G. ABELLO, JOSE C. CONCEPCION, TEODORO D. REGALA, AVELINO V. CRUZ, petitioners, vs. COMMISSIONER OF INTERNAL REVENUE and COURT OF APPEALS, respondents.

D E C I S I O N

AZCUNA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Civil Procedure, assailing the decision of the Court of Appeals in CA –G.R. SP No. 27134, entitled “Comissioner of Internal Revenue v. Manuel G. Abello, Jose C. Concepcion, Teodoro D. Regala, Avelino V. Cruz and Court of Tax Appeals,” which reversed and set aside the decision of the Court of Tax Appeals (CTA), ordering the Commissioner of Internal Revenue (Commissioner) to withdraw his letters dated April 21, 1988 and August 4, 1988 assessing donor’s taxes and to desist from collecting donor’s  taxes from petitioners.

During the 1987 national elections, petitioners, who are partners in the Angara, Abello, Concepcion, Regala and Cruz (ACCRA) law firm, contributed P882,661.31 each to the campaign funds of Senator Edgardo Angara, then running for the Senate. In letters dated April 21, 1988, the Bureau of Internal Revenue (BIR) assessed each of the

petitioners P263,032.66 for their contributions.  On August 2, 1988, petitioners questioned the assessment through a letter to the BIR. They claimed that political or electoral contributions are not considered gifts under the National Internal Revenue Code (NIRC), and that, therefore, they are not liable for donor’s tax.  The claim for exemption was denied by the Commissioner.[1]

On September 12, 1988, petitioners filed a petition for review with the CTA, which was decided on October 7, 1991 in favor of the petitioners.  As aforestated, the CTA ordered the Commissioner to desist from collecting donor’s taxes from the petitioners. [2]

On appeal, the Court of Appeals reversed and set aside the CTA decision on April 20, 1994.[3] The appellate Court ordered the petitioners to pay donor’s tax amounting to P263,032.66 each, reasoning as follows:

The National Internal Revenue Code, as amended, provides:

Sec. 91.  Imposition of Tax. (a) There shall be levied, assessed, collected, and paid upon the transfer by any person, resident, or non-resident, of the property by gift, a tax, computed as provided in Section 92. (b) The tax shall apply whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible.

Pursuant to the above-quoted provisions of law, the transfer of property by gift, whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible, is subject to donor’s or gift tax.

A gift is generally defined as a voluntary transfer of property by one to another without any consideration or compensation therefor (28 C.J. 620; Santos vs. Robledo, 28 Phil. 250).

In the instant case, the contributions are voluntary transfers of property in the form of money from private respondents to Sen. Angara, without considerations therefor.  Hence, they squarely fall under the definition of donation or gift.

As correctly pointed out by the Solicitor General:

The fact that the contributions were given to be used as campaign funds of Sen. Angara does not affect the character of the fund transfers as donation or gift.  There was thereby no retention of control over the disposition of the contributions.  There was simply an indication of the purpose for which they were to be used.  For as long as the contributions were used for the purpose for which they were intended, Sen. Angara had complete and absolute power to dispose of the contributions.  He was fully entitled to the economic benefits of the contributions.

Section 91 of the Tax Code is very clear.  A donor’s or gift tax is imposed on the transfer of property by gift.

The Bureau of Internal Revenue issued Ruling No. 344 on July 20, 1988, which reads:

Political Contributions. – For internal revenue purposes, political contributions in the Philippines are considered taxable gift rather than taxable income.  This is so, because a political contribution is indubitably not intended by the giver or contributor as a return of value or made because of any intent to repay another what is his due, but bestowed only because of motives of philanthropy or charity.  His purpose is to give and to bolster the morals, the winning chance of the candidate and/or his party, and not to employ or buy.  On the other hand, the recipient-donee does not regard himself as exchanging his services or his product for the money contributed.  But more importantly he receives financial advantages gratuitously.

When the U.S. gift tax law was adopted in the Philippines (before May 7, 1974), the taxability of political contributions was, admittedly, an unsettled issue; hence, it cannot be presumed that the Philippine Congress then had intended to consider or treat political contributions as non-taxable gifts when it adopted the said gift tax law.  Moreover, well-settled is the rule that the Philippines need not necessarily adopt the present rule or construction in the United States on the matter.  Generally, statutes of different states relating to the same class of persons or things or having the same purposes are not considered to be in pari materia because it cannot be justifiably presumed that the legislature had them in mind when enacting the provision being construed.  (5206, Sutherland, Statutory Construction, p. 546.) Accordingly, in the absence of an express exempting provision of law, political contributions in the Philippines are subject to the donor’s gift tax. (cited in National Internal Revenue Code Annotated by Hector S. de Leon, 1991 ed., p. 290).

In the light of the above BIR Ruling, it is clear that the political contributions of the private respondents to Sen. Edgardo Angara are taxable gifts.  The vagueness of the law as to what comprise the gift subject to tax was made concrete by the above-quoted BIR ruling.  Hence, there is no doubt that political contributions are taxable gifts.[4]

Petitioners filed a motion for reconsideration, which the Court of Appeals denied in its resolution of June 16, 1995.[5]

Petitioners thereupon filed the instant petition on July 26, 1995. Raised are the following issues:

1.     DID THE HONORABLE COURT OF APPEALS ERR WHEN IT FAILED TO CONSIDER IN ITS DECISION THE PURPOSE BEHIND THE ENACTMENT OF OUR GIFT TAX LAW?

2.     DID THE HONORABLE COURT OF APPEALS ERR IN NOT CONSIDERING THE INTENTION OF THE GIVERS IN DETERMINING WHETHER OR NOT THE PETITIONERS’ POLITICAL CONTRIBUTIONS WERE GIFTS SUBJECT TO DONORS TAX?

3.     DID THE HONORABLE COURT OF APPEALS ERR WHEN IT FAILED TO CONSIDER THE DEFINITION OF AN “ELECTORAL CONTRIBUTION” UNDER THE OMNIBUS ELECTION CODE IN DETERMINING WHETHER OR NOT POLITICAL CONTRIBUTIONS ARE TAXABLE?

4.     DID THE HONORABLE COURT OF APPEALS ERR IN NOT CONSIDERING THE ADMINISTRATIVE PRACTICE OF CLOSE TO HALF A CENTURY OF NOT SUBJECTING POLITICAL CONTRIBUTIONS TO DONORS TAX?

5.     DID THE HONORABLE COURT OF APPEALS ERR IN NOT CONSIDERING THE AMERICAN JURISPRUDENCE RELIED UPON BY THE COURT OF TAX APPEALS AND BY THE PETITIONERS TO THE EFFECT THAT POLITICAL CONTRIBUTIONS ARE NOT TAXABLE GIFTS?

6.     DID THE HONORABLE COURT OF APPEALS ERR IN NOT APPLYING AMERICAN JURISPRUDENCE ON THE GROUND THAT THIS WAS NOT KNOWN AT THE TIME THE PHILIPPINES GIFT TAX LAW WAS ADOPTED IN 1939?

7.     DID THE HONORABLE COURT OF APPEALS ERR IN RESOLVING THE CASE MAINLY ON THE BASIS OF A RULING ISSUED BY THE RESPONDENT ONLY AFTER THE ASSESSMENTS HAD ALREADY BEEN MADE?

8.     DID THE HONORABLE COURT OF APPEALS ERR WHEN IT DID NOT CONSTRUE THE GIFT TAX LAW LIBERALLY IN FAVOR OF THE TAXPAYER AND STRICLTY AGAINST THE GOVERNMENT IN ACCORDANCE WITH APPLICABLE PRINCIPLES OF STATUTORY CONSTRUCTION?[6]

First, Fifth and Sixth Issues

Section 91 of the National Internal Revenue Code (NIRC) reads:

(A)     There shall be levied, assessed, collected and paid upon the transfer by any person, resident or nonresident, of the property by gift, a tax, computed as provided in Section 92

(B)     The tax shall apply whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible.

The NIRC does not define transfer of property by gift.  However, Article 18 of the Civil Code, states:

In matters which are governed by the Code of Commerce and special laws, their deficiency shall be supplied by the provisions of this Code.

Thus, reference may be made to the definition of a donation in the Civil Code. Article 725 of said Code defines donation as:

. . . an act of liberality whereby a person disposes gratuitously of a thing or right in favor of another, who accepts it.

Donation has the following elements:  (a) the reduction of the patrimony of the donor; (b) the increase in the patrimony of the donee; and, (c) the intent to do an act of liberality or animus donandi.[7]

The present case falls squarely within the definition of a donation. Petitioners, the late Manuel G. Abello[8], Jose C. Concepcion, Teodoro D. Regala and Avelino V. Cruz, each gave P882,661.31 to the campaign funds of Senator Edgardo Angara, without any material consideration.  All three elements of a donation are present.  The patrimony of the four petitioners were reduced by P882,661.31 each.  Senator Edgardo Angara’s patrimony correspondingly increased by P3,530,645.24[9]. There was intent to do an act of liberality or animus donandi was present since each of the petitioners gave their contributions without any consideration.

Taken together with the Civil Code definition of donation, Section 91 of the NIRC is clear and unambiguous, thereby leaving no room for construction. In Rizal Commercial Banking Corporation v. Intermediate Appellate Court [10]  the Court enunciated:

It bears stressing that the first and fundamental duty of the Court is to apply the law. When the law is clear and free from any doubt or ambiguity, there is no room for construction or interpretation.  As has been our consistent ruling, where the law speaks in clear and categorical language, there is no occasion for interpretation; there is only room for application (Cebu Portland Cement Co. v. Municipality of Naga, 24 SCRA 708 [1968])

Where the law is clear and unambiguous, it must be taken to mean exactly what it says and the court has no choice but to see to it that its mandate is obeyed (Chartered Bank Employees Association v. Ople, 138 SCRA 273 [1985]; Luzon Surety Co., Inc. v. De Garcia, 30 SCRA 111 [1969]; Quijano v. Development Bank of the Philippines, 35 SCRA 270 [1970]).

Only when the law is ambiguous or of doubtful meaning may the court interpret or construe its true intent.  Ambiguity is a condition of admitting two or more meanings, of being understood in more than one way, or of referring to two or more things at the same time.  A statute is ambiguous if it is admissible of two or more possible meanings, in which case, the Court is called upon to exercise one of its judicial functions, which is to interpret the law according to its true intent.

Second Issue

Since animus donandi or the intention to do an act of liberality is an essential element of a donation, petitioners argue that it is important to look into the intention of the giver to determine if a political contribution is a gift.  Petitioners’ argument is not tenable.  First of all, donative intent is a creature of the mind.  It cannot be perceived except by the material and tangible acts which manifest its presence.  This being the case, donative intent is presumed present when one gives a part of ones patrimony to another without consideration. Second, donative intent is not negated when the person donating has other intentions, motives or purposes which do not contradict donative intent.  This Court is not convinced that since the purpose of the contribution was to help elect a candidate, there was no donative intent.  Petitioners’ contribution of money without any material consideration evinces animus donandi.  The fact that their purpose for donating was to aid in the election of the donee does not negate the presence of donative intent.

Third Issue

Petitioners maintain that the definition of an “electoral contribution” under the Omnibus Election Code is essential to appreciate how a political contribution differs from a taxable gift.[11] Section 94(a) of the said Code defines electoral contribution as follows:

The term "contribution" includes a gift, donation, subscription, loan, advance or deposit of money or anything of value, or a contract, promise or agreement to contribute, whether or not legally enforceable, made for the purpose of influencing the results of the elections but shall not include services rendered without compensation by individuals volunteering a portion or all of their time in behalf of a candidate or political party. It shall also include the use of facilities voluntarily donated by other persons, the money value of which can be assessed based on the rates prevailing in the area.

Since the purpose of an electoral contribution is to influence the results of the election, petitioners again claim that donative intent is not present.  Petitioners attempt to place the barrier of mutual exclusivity between donative intent and the purpose of political contributions.  This Court reiterates that donative intent is not negated by the presence of other intentions, motives or purposes which do not contradict donative intent.

Petitioners would distinguish a gift from a political donation by saying that the consideration for a gift is the liberality of the donor, while the consideration for a political contribution is the desire of the giver to influence the result of an election by supporting candidates who, in the perception of the giver, would influence the shaping of

government policies that would promote the general welfare and economic well-being of the electorate, including the giver himself.

Petitioners’ attempt is strained.  The fact that petitioners will somehow in the future benefit from the election of the candidate to whom they contribute, in no way amounts to a valuable material consideration so as to remove political contributions from the purview of a donation.  Senator Angara was under no obligation to benefit the petitioners.  The proper performance of his duties as a legislator is his obligation as an elected public servant of the Filipino people and not a consideration for the political contributions he received.  In fact, as a public servant, he may even be called to enact laws that are contrary to the interests of his benefactors, for the benefit of the greater good.

In fine, the purpose for which the sums of money were given, which was to fund the campaign of Senator Angara in his bid for a senatorial seat, cannot be considered as a material consideration so as to negate a donation.

Fourth Issue

Petitioners raise the fact that since 1939 when the first Tax Code was enacted, up to 1988 the BIR never attempted to subject political contributions to donor’s tax.  They argue that:

. . . It is a familiar principle of law that prolonged practice by the government agency charged with the execution of a statute, acquiesced in and relied upon by all concerned over an appreciable period of time, is an authoritative interpretation thereof, entitled to great weight and the highest respect. . . .[12]

This Court holds that the BIR is not precluded from making a new interpretation of the law, especially when the old interpretation was flawed.  It is a well-entrenched rule that

. . . erroneous application and enforcement of the law by public officers do not block subsequent correct application of the statute (PLDT v. Collector of Internal Revenue, 90 Phil. 676), and that the Government is never estopped by mistake or error on the part of its agents (Pineda v. Court of First Instance of Tayabas, 52 Phil. 803, 807; Benguet Consolidated Mining Co. v. Pineda, 98 Phil. 711, 724).[13]

Seventh Issue

Petitioners question the fact that the Court of Appeals decision is based on a BIR ruling, namely BIR Ruling No. 88-344, which was issued after the petitioners were assessed for donor’s tax.  This Court does not need to delve into this issue. It is

immaterial whether or not the Court of Appeals based its decision on the BIR ruling because it is not pivotal in deciding this case.  As discussed above, Section 91 (now Section 98) of the NIRC as supplemented by the definition of a donation found in Article 725 of the Civil Code, is clear and unambiguous, and needs no further elucidation.

Eighth Issue

Petitioners next contend that tax laws are construed liberally in favor of the taxpayer and strictly against the government.  This rule of construction, however, does not benefit petitioners because, as stated, there is here no room for construction since the law is clear and unambiguous.

Finally, this Court takes note of the fact that subsequent to the donations involved in this case, Congress approved Republic Act No. 7166 on November 25, 1991, providing in Section 13 thereof that political/electoral contributions, duly reported to the Commission on Elections, are not subject to the payment of any gift tax.  This all the more shows that the political contributions herein made are subject to the payment of gift taxes, since the same were made prior to the exempting legislation, and Republic Act No. 7166 provides no retroactive effect on this point.

WHEREFORE, the petition is DENIED and the assailed Decision and Resolution of the Court of Appeals are AFFIRMED.

No costs.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Quisumbing, and Carpio, JJ., concur.Ynares-Santiago, J., no part.

[1] Rollo, p. 38.

[2] Ibid.

[3] Penned by Justice Consuelo Ynares-Santiago, now Associate Justice of this Court, and concurred in by Associate Justices Oscar M. Herrera and Delilah Vidallon-Magtolis, of the Eleventh Division of the Court of Appeals.

[4] Rollo, pp. 39-41 (Emphasis in the original).

[5] Rollo, p. 44.

[6] Rollo, pp. 167-168.

[7] Republic of the Philippines   v.   Guzman , 326 SCRA 90 (2000); Tayoto v. Heirs of Cabalo Kusop, 184 SCRA 355 (1990).

[8] See Manifestation, dated 25 November 2003, by counsel for petitioners informing the Court of the death of petitioner Abello; Rollo, p. 192-A.

[9] P882,661.31 x 4 = P3,530,645.24.

[10] 320 SCRA 279, 289 (1999).

[11] Rollo, p. 174.

[12] Rollo, p. 178.

[13] Republic v. Phil. Long Distance Co., 26 SCRA 620, 631 (1969).

FIRST DIVISION

[G.R. No. 137447.  January 31, 2005]

ROBERT VENERACION, petitioner vs. PEOPLE OF THE PHILIPPINES, respondent.

D E C I S I O N

AZCUNA, J.:

Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals in CA-G.R. No. 14512, dated August 31, 1998, in favor of the People of the Philippines, against herein petitioner Robert Veneracion, and its Resolution, dated February 1, 1999, denying the motion for reconsideration.

The Information against petitioner Veneracion reads:

That on or about the 10th day of December, 1989 in Kaloocan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, being then the driver and person in-charge of a Tractor Trailer bearing Plate No. CVC-137

owned and registered in the name of Rock Component Phil. Inc. of San Rafael, Bulacan, did then and there wilfully, unlawfully and feloniously drive, manage and operate said vehicle along E. delos Santos Avenue corner B. Serrano St., this city, in a reckless, negligent and imprudent manner, without taking the necessary precautions against accident to persons and damage to property, causing by such recklessness, negligence and imprudence, said vehicle then being driven by the herein accused to hit and bump a private car Toyota bearing Plate No. L-NME-429 owned and driven at the time by Dr. Conrado Triguero y Valeriano, thereby causing damage to the said private car in the amount of P27,080.00, to the damage and prejudice of the said complainant, in the aforementioned amount of P27,080.00.

Contrary to Law.[2]

As stated by the Court of Appeals (CA), the facts are as follows:

Records show that immediately prior to the incident in question, accused-appellant Robert Veneracion was driving a trailer-truck bearing Plate No. CVC-137, owned by Rock Components Philippines, Inc. and Lenet Castro. The trailer-truck had just exited the North Expressway and was traveling west along E. delos Santos Avenue (EDSA) towards Kalookan City, intending to make a left turn on B. Serrano Street. Meanwhile, further down the road, a two-door Toyota Corolla, Model 1981 with Plate No. NME-429 owned and driven by Dr. Conrado Triguero was at a full stop position at the center of the intersection of EDSA and B. Serrano Street, Kalookan City. The car was negotiating a left turn towards B. Serrano Street when the right front fender of the trailer truck bumped the left center portion of the car towards the driver’s seat.   

As a result of the impact, the front and middle doors including the glass windows and side mirror of the car sustained damages in the total amount of P24,900.00 which Dr. Triguero paid (Exhibit “T”, Official Receipt) to Accurate Motor Works.  

After due proceedings, the court a quo rendered its Decision dated February 26, 1993, the decretal portion [of which] reads:

“WHEREFORE, in view of all the foregoing considerations, judgment is hereby rendered finding accused ROBERT VENERACION guilty beyond reasonable doubt of the crime of Damage to Property thru Reckless Imprudence, defined and penalized under Art. 365, third paragraph, of the Revised Penal Code, and hereby sentences him to pay a fine of TWENTY FOUR THOUSAND NINE HUNDRED PESOS (P24,900.00).

“No i[n]demnity is provided herein because the offended party, DR. CONRADO TRIGUERO, has filed a separate civil action against the accused and the latter’s

employer, ROCK COMPONENT PHILIPPINE[S] INC., which is still pending before this Court.

“With cost[s] against the accused.

“SO ORDERED.” [3]

The CA affirmed in toto the RTC Decision.

Petitioner now contends that:

I

THE RESPONDENT COURT ERRED IN PRESUMING NEGLIGENCE ON THE PART OF THE PETITIONER, AND MERELY RELYING IN CONJECTURE, SURMISE AND SPECULATION THEREBY DIRECTLY CONTRAVENING THE FINDINGS OF FACT OF THE TRIAL COURT.

II

THE RESPONDENT COURT ERRED IN NOT RESOLVING THE DOUBT IN FAVOR OF THE PETITIONER.

III

THE RESPONDENT COURT ERRED IN NOT DECLARING THAT PETITIONER IS NOT LIABLE TO PAY THE FINE OF P24,900.00.[4]

On the first assigned error, petitioner cites the findings of fact of the CA and alleges that the same was “in direct contravention to the findings of fact of the trial court.” He then cites certain portions of the trial court’s Decision to show the supposed disparity. Upon scrutiny, however, this Court notes that the said quoted portion of the RTC Decision, which was purportedly contravened by the CA, was nothing more than the portion of the RTC Decision which merely narrates the accused’s version of the incident. A reading of the RTC Decision shows that the RTC first narrated the version of the prosecution, and thereafter did the same with the version of the defense. Ultimately, however, the trial court did find that the prosecution’s version was worthy of credence, as amply supported by the evidence submitted.

The RTC found:

After a thorough and careful evaluation of the foregoing evidence of the prosecution and the defense and after going over the transcripts of stenographic notes, . . . the Court finds that the prosecution, by the streng[th] of its own evidence, has established

beyond reasonable doubt the guilt of the accused ROBERT VENERACION of the offense of reckless imprudence resulting in damage to property charged against him.

. . . 

. . .  [T]he Court is convinced that the evidence of the prosecution clearly and beyond doubt established that on December 10, 1989 at about 10:45 a.m., Dr. Conrado Triguero was driving his two-door Toyota Corolla car, model 1981 with Certificate of Registration No. 05248901 of the Land Transportation Office (Exh. “A”) and O.R. No. 33405884 dated October 12, 1990 (Exh. “B”) along EDSA and turning left to B. Serrano St., Kalookan City. He exhibited his driver’s license (Exh. “D”) during the trial.

In contrast, the accused during his entire testimony never so much as produced his driver’s license. All he did was to state that it has never been confiscated.

The pictures (Exhs. “E” to “M”) introduced by the prosecution were all admitted by the accused to be true and correct pictures of the traffic accident. Not one of those pictures ever showed that the trailer-truck being driven by the accused was ahead of the car being driven by Dr. Triguero. On the contrary, those pictures depicted that the car of Dr. Triguero was the one ahead even at the time of impact. These pictures also substantiated the testimony of Dr. Triguero that his car was ahead of, and was being followed by[,] the trailer truck. That fact was seen by him through his side mirror. Moreover, those pictures tended to substantiate, the truth of Dr. Triguero’s testimony that when he was already at full stop and thereafter making the left turn to B. Serrano St., the trailer truck was still about ten (10) meters away from his truck.

As the saying goes, a picture is worth a thousand words. Accused could say his version of the accident in so many words as testified to by him in his defense, but the prosecution’s Exh[s.] “E” to “M” would belie these words.

Also duly proved by said pictures was the fact that the trailer truck was not making a left turn to B. Serrano St., prior to the time of impact. It was Dr. Triguero’s car which was already making a left turn but while doing so, the trailer truck bumped its left side.

. . .

Another circumstance which established the truth of D[r]. Triguero’s testimony as to how the accident occurred, was the introduction of the documentary exhibit by the prosecution to support said testimony, (actually from Exh[s.] “A” to “T”), as

compared to absolutely none at all from the accused. Even the latter’s purported Exh. “1” was not introduced by the defense.

. . .

Coming now to the issue of who was recklessly driving his vehicle at the time of the accident, the people’s evidence overwhelmingly points to the accused as the culprit.  [5]

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

Upon its review, the CA fully agreed with findings of the RTC and consequently affirmed said Decision in toto. The appellate Court found that “[c]ontrary to the appellant’s position, though, the record is teeming with evidence supporting the version of the prosecution.”[6]

The CA found:

Moreover, a close examination of the left side of the car as seen from the pictures (Exhibits “F”, “J”, “K” and “L”), reveals scratch marks running from the back of the car towards its center. It is therefore not a far-fetched conclusion that the scratch marks were caused by the right fender of the trailer-truck before it rested on the center of the car. The presence of those scratch marks at the back of the car indicates that the trailer-truck bumped the car from behind.

Article 365 of the Revised Penal Code provides that reckless imprudence consists in voluntarily, but without malice, doing or failing to do an act from which material damage results by reason of inexcusable lack of precaution on the part of the person performing or failing to perform such act, taking into consideration his employment or occupation, degree of intelligence, physical condition and other circumstances regarding persons, time and place. Here, the prosecution proved and as sustained by the lower court, the car was clearly ahead of the trailer truck prior to the collision. Hence, it was incumbent upon the appellant to reduce his speed or apply on the brakes of the truck in order to allow the car to safely negotiate a left turn at the intersection. Failing, thus, in observing the necessary precaution to avoid inflicting injury or damage to others, We consider appellant to be recklessly imprudent in operating his vehicle.

Appellant further laments the lower court’s opinion finding him negligent in his driving on the ground that as between him and Dr. Triguero, he was the one with the shorter driving experience. He argues that Dr. Triguero’s considerable driving experience does not guarantee that at the time of the accident he was not recklessly driving his car. We agree to some extent with this contention. It is true that lack of experience in the operation of a vehicle may cause damage or injury.  But if a person, with a short period of experience in the operation a motor vehicle, operates it with that

degree of care and skill that is required of a seasoned driver, negligence cannot be predicated upon the mere fact of inexperience on the part of a driver. However, the issue involved in the instant case is whether appellant operated the truck imprudently at the time of the accident. This is where Our concurrence should cease. Having found earlier that appellant was imprudent in the operation of the trailer-truck, the fact of appellant’s inexperience thus becomes relevant. Besides, his conviction was not based solely on his relative inexperience. [7]

In conclusion, the CA stated that “the court a quo based its ruling on the totality of the testimonial and documentary evidence[] proffered in the case,”[8] such that the CA refused to disturb said factual findings, there being no overlooked facts of substance nor other compelling reason to warrant a change or modification.[9]

Thus, the argument that the CA contravened the findings of fact of the RTC has no basis.

Another look at petitioner’s assigned errors, as well as the arguments he advanced in support thereof, would show that petitioner is asking for a review of the facts and circumstances of the incident in question. The main thrust of his defense is that it was Dr. Triguero who was at fault, who was negligent and who was the proximate cause of the collision.

Both the RTC and the CA are in agreement as to the particulars of what happened. In such a case, the rule is that their findings on the facts will not be disturbed.

WHEREFORE, the petition is DENIED, and the Decision and Resolution of the Court of Appeals in CA-G.R. No. 14512 are AFFIRMED.

No costs.

SO ORDERED.

Davide Jr. ,C.J. (Chairman), Quisumbing, Ynares-Santiago and Carpio, JJ., concur.

[1] Rollo, pp. 26-32.

[2] Records, p. 4.

[3] Rollo, pp. 27-28.

[4] Id., at 12.

[5] Records, pp. 127-129.

[6] Rollo, p. 29.

[7] Rollo, p. 30.

[8] Id. at 31.

[9] Id.

EN BANC

[G.R. No. 157933.  August 10, 2004]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ESMER MONTENEGRO; FREDDIE MACA (At Large); KIKING SALAHAY (At Large); BADIL SALAHAY (At Large); MAMA MONTENEGRO (At Large); andFLORIE MEDRANO (At Large), accused;

ESMER MONTENEGRO, accused-appellant.

D E C I S I O N

AZCUNA, J.:

Appellant Esmer Montenegro was charged together with Freddie Maca, Kiking Salahay, Badil Salahay, Mama Montenegro and Florie Medrano before the Regional Trial Court of Tandag, Surigao del Sur, Branch 27, for Kidnapping and Serious Illegal Detention on October 22, 2001.  Inasmuch as all the other accused were at large, the trial proceeded only with respect to herein appellant Esmer Montenegro who had surrendered and who has been detained by the authorities. After trial, he was found guilty by the lower court and sentenced to death.

The case is before us on automatic review.

The Information

Appellant and his co-accused were charged under an information that reads, as follows:

The undersigned prosecutor hereby accuses KIKING SALAHAY, alias ENRIQUE MENDOZA, FREDDIE MACA, BADIL SALAHAY, ESMER MONTENEGRO, MAMA MONTENEGRO, and FLORIE MEDRANO, with the crime of KIDNAPPING AND SERIOUS ILLEGAL DETENTION, committed as follows:

That on the 23rd day of August 2001, about 7:30 in the morning, more or less, at Umalag, San Miguel, Surigao del Sur, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating and mutually helping one another, did, then and there, willfully, unlawfully and feloniously kidnap and forcibly bring one Gerardo Mag-isa, 42 years old, to an undisclosed place for the

purpose of extorting ransom, wherein the latter was detained and deprived of his liberty for a period of seven (7) days, to the damage and prejudice of said victim.

CONTRARY TO LAW. (In violation of Article 267 as amended by R.A. 7659).[1]

Upon arraignment, appellant pleaded not guilty.[2]

Pre-Trial

On July 5, 2002 a pre-trial hearing was conducted and terminated on the same day, where the following admissions were made by appellant and recorded in a Pre-Trial Order:[3]

1.     His identity as Esmer Montenegro;

2.     the date and place of the incident, namely, August 23, 2001 at about 7:30 in the morning at Umalag, San Miguel, Surigao del Sur;

3.     that with him were his co-accused Kiking Salahay, alias Enrique Mendoza, Freddie Maca, Badil Salahay, Mama Montenegro and Florie Montenegro;

4.     the existence of the four-page letter of the victim addressed to his wife Rose;

5.     that the victim Gerry Mag-isa was kidnapped and detained for seven days; appellant however alleged that he acted under the compulsion of an irresistible force;

6.     the one-page letter also dated August 23, 2001 by the victim addressed to Rose.

Appellant, however, proposed for admission by the prosecution the defense of having acted under the compulsion of an irresistible force.  The prosecution rejected the proposal.

The Prosecution’s Evidence

The prosecution offered the following as its exhibits:

Exhibit “A”     -           4-page letter dated August 23, 2001 

signed by Gerry Mag-isa and addressed

 to his wife Rose;

Exhibit “B”     -           1-page letter signed by Gerry and

addressed to his wife Rose.

The prosecution did not present any witness nor any other evidence and relied   mainly on the admissions made by appellant during the pre-trial hearing and on Exhibits “A” and “B” which it formally offered in evidence.

On July 5, 2002, the trial court issued the following Order:[4]

After the pre-trial and considering the admission of the defense in so far as the accused Esmer Montenegro is concerned, Assistant Provincial Prosecutor Elpidio I. Digaum moved to be allowed to formally offer his evidence and rest his case.  Granted.  Formally offered in evidence are the following exhibits namely:  the 4-page letter dated August 23, 2001 signed by Gerry the victim in this case addressed to his wife Rose marked as Exhibit “A” and the 1-page letter also dated August 23, 2001 signed by the same victim Gerry addressed to his wife Rose. The alleged purpose is to prove demand for money by the alleged kidnappers. The defense admitted the existence of Exhibits “A” and “B” and denied the purposes for which the same are offered.

Considering the admission of the existence of Exhibits “A” and “B”, the same are ordered admitted. The purpose of the offer and objection thereto will be evaluated in the appreciation of the evidence. The prosecution having rested its case, the reception of defense is set for August 13, 2002 at 8:30 in the morning.  x x x

Evidence For The Defense

Appellant, in his defense, testified that in the early morning of August 23, 2001, he was fetched from his house located at Barangay Caromata, San Miguel, Surigao del Sur, by his uncle Freddie Maca, who asked him to accompany him to collect money from a certain person and who told him that he will give him P500. They proceeded to Barangay Umalag and when they reached the place, he was made to wait at the waiting shed while his uncle went to the house of a certain councilor to fetch a relative by the name of Mama Montenegro. When Freddie Maca came back, he was accompanied by Mama Montenegro and Kiking Salahay and Badil Salahay whom he noticed to be all armed with .45 and .38 caliber guns. Then they all proceeded to the mountain of Umalag.

They proceeded to the mountain of Umalag because the person who was indebted to Freddie Maca was invited to that area. When they reached their destination, Kiking Salahay pointed his gun at a person who later turned out to be Gerry Mag-isa.

Appellant asked Freddie Maca for permission to go home because he was afraid of what the group did. Freddie Maca relayed his request to Kiking Salahay. Fearing that he would report the matter to the police, Kiking Salahay said that it would be better for all of them if they just killed appellant. Appellant then begged for his life and stayed with the group.

The group proceeded to Barangay Bitaugan and stayed there for one day and two nights. On the second night, however, at about 11:00 o’clock in the evening, they discovered that Gerry Mag-isa had escaped. Seizing the opportunity to leave the group, he asked permission to go home to which the group agreed.[5]

Upon reaching Barangay Caromata, he immediately reported the incident to Barangay Captain Felicula Gran who promised to assist him. She accompanied him in surrendering to Sgt. Nacional of the Philippine Army who picked him up and brought him to the Municipal Hall of San Miguel where he was detained until the case was filed. [6]

The Trial Court’s Decision

After trial, the lower court, finding that the prosecution had established the crime charged, rendered its decision on November 20, 2002 convicting appellant of the crime of Kidnapping with Serious Illegal Detention and sentencing him to death.[7]

In its decision, the trial court presented the following facts:[8]

Evidence for the prosecution show[s] that on August 23, 2001, at about 7:30 in the morning, at Umalag, San Miguel, Surigao del Sur, the victim Gerry Mag-isa was at the mining site together with Arsenio L. Darasan, Ricardo P. Cabangbang, and Joseph C. Flores. At that moment, a man arrived who said that he was instructed by the Barangay Captain of Umalag, San Miguel, Surigao del Sur, by the name of Kapitan Piling, to invite Gerry Mag-isa and to bring him to her residence because it was the fiesta of her Barangay. Because they were so busy at that time, Gerry Mag-isa refused to go with him and instead handed him an amount of P200.00 when he left. Not long after fifteen minutes had passed, after said person left, three men arrived with the same intention of inviting him to the house of Kapitan Piling. However, when the three men were at the makeshift hut they suddenly pulled out their .45 and .38 caliber handguns and ordered Gerry Mag-isa, Arsenio L. Darasan, Ricardo P. Cabangbang and Joseph C. Flores to drop to the ground. That while still lying face on the ground, they saw Kiking Salahay, the leader of the group, hand over a piece of paper to Gerry Mag-isa and [Kiking Salahay] ordered him to write a note to his wife, telling her to give the amount of Two Million Pesos (P2,000,000.00) for the release of her husband. That soon after the note was written, they instructed Arsenio Darasan, Joseph C. Flores and Ricardo P. Cabangbang to bring said note to the wife of the victim. That after they left with Gerry Mag-isa, they immediately went to Tandag, Surigao del Sur (See Joint Affidavit of Arsenio L. Darasan, et al. in page 24 of the record).

The allegation of the victim Gerry Mag-isa (See Affidavit on page 23 of the record) shows that he was forcibly abducted and kidnapped about 7:00 in the morning of August 23, 2001, at Barangay Umalag, San Miguel, Surigao del Sur.   He stated, that he was treated well by the kidnappers, except that when he answered to the call of nature, he was watched closely and they were asking money from his family. The kidnappers also took from him the amount of P320.00 which was spent for their food in the mountains and his chainsaw amounting to P18,000.00. After spending 7 days at the hands of the captors, specifically on August 30, 2001, at about 1:00 o’clock in the morning, while they were asleep, he was able to escape and reached Barangay Bagyang, San Miguel. He was able to know the leader of the kidnappers by the name of Kiking Salahay, alias Enrique Mendoza because they called him “kumander”. They were armed with a .45 caliber, two .38 caliber handguns and sharp bladed military knives.

Appellant in his brief assigns a single error, to wit;

THE TRIAL COURT GRAVELY ERRED IN CONVICTING THE ACCUSED–APPELLANT OF THE CRIME CHARGED.

In support of his sole assignment of error, appellant seeks exemption from criminal liability under Article 12, Paragraph 5 of the Revised Penal Code which provides that “any person who acts under the compulsion of an irresistible force” is exempt from criminal liability. He cites the following circumstances which would place him under the umbrella of this exemption:

1.   He was forced to join the kidnappers because he was threatened with bodily harm and death.

2.   He did not attempt to escape because the leader Kiking Salahay and his companions carried with them .45 and .38 caliber firearms.

3.   He was not allowed to leave the group because Salahay feared that the accused would report the matter to the police.[9]

The specific act which allegedly constitutes this irresistible force is the statement of Kiking Salahay that it would be better for the group if they just killed appellant in response to his request to be allowed to go home.  Appellant thus begged for his life and was left with no choice but to stay with the group.[10]

As a result, appellant argues that he was reduced to a mere instrument. He did not act of his own volition and the fear of being killed and the fact that his uncle Freddie Maca had moral ascendancy over him forced him to stay with the group. These circumstances, therefore, he contends, exempt him from criminal liability. In support, appellant cites the ruling in People v. Del Rosario.[11]

The Solicitor General’s Recommendation

The Solicitor General filed a Manifestation and Motion (In Lieu of Brief),[12] recommending the acquittal of appellant on the ground that the exacting proof of guilt beyond reasonable doubt was not met, thus:

x x x

13.     The appeal is meritorious

14.     Under the criminal justice system, the burden of proof lies with the prosecution. (Rule 115, Section 1, Revised Rules of Criminal Procedure).  That burden must be discharged on the strength of the prosecution’s own evidence, without relying on the weakness of the defense.  Proof beyond reasonable doubt, or that quantum of proof sufficient to produce a moral certainty that would convince and satisfy the conscience of those who are to act in judgment, is indispensable to overcome the constitutional presumption of innocence (People v. Batocoy, G.R. Nos. 137458-59, prom. April 24, 2003).

15.     Such proof is lacking in this case.

16.     The prosecution merely offered in evidence the following documents:

1.     A 4-page letter dated August 23, 2001 signed by Gerry Mag-isa, addressed to his wife.  The letter contained a demand of P150,000.00 ransom instead of P2M;

2.     A 1-page letter dated August 23, 2001 signed by Gerry Mag-isa,  This letter was addressed to Rose informing her that he was a hostage and that the kidnappers were demanding a P2M ransom.

17.     Sadly, the prosecution did not present testimonial evidence to prove the guilt of appellant of the crime charged.  The evidence of the prosecution does not measure up to the requisite moral certainty, notwithstanding the admission by the defense of the existence of the four-page letter of the victim Gerry Mag-isa addressed to his wife (Exh. “A”).  Furthermore, the admissions of appellant were not reduced into writing and signed by him and his counsel in violation of Section 2, Rule 118 of the Revised Rules of Criminal Procedure.  This means that the admissions, assuming that these are incriminating, cannot be used against appellant.

18.     Even as appellant testified that he was with the other accused, there is no evidence that he conspired with them to kidnap the victim, detain him for more than three (3) days, and demand for ransom in exchange for his release.

19.     In view of the abject failure of the prosecution to present witnesses to prove the guilt of appellant, his testimony, therefore, remains undisturbed.

x x x

20.     From [appellant’s] declaration, it appears that appellant had no idea of the kidnapping scheme because he was just invited by his uncle to accompany him in collecting an obligation from a certain person.  Likewise, significant are the acts of appellant in reporting the incident to the authorities and turning himself in.  These were not disputed by the prosecution.

21.     Absent any overt act of appellant which would be construed as necessary or essential to the perpetration of the kidnapping for ransom and serious illegal detention, mere presence at the locus criminis cannot by itself be a valid basis for conviction.  Mere knowledge, acquiescence to or agreement to cooperate, is not enough to constitute one as a party to a conspiracy, absent any active participation in the commission of the crime, with a view to the furtherance of the common design and purpose.  Conspiracy transcends companionship (People v. James Patano, et al., G.R. No. 129306, prom. March 14, 2003).  Conspiracy must be proved as convincingly as the criminal act itself, which may be deducted from the acts of appellant pointing to a joint purpose, concerted action and community of interest (People v. Guittap, G.R. No. 144621, prom. May 9, 2003).  It is hornbook doctrine that conspiracy must be proved by positive and convincing evidence(People v. Patano, G.R. No. 129306, prom. March 14, 2003), the same quantum of evidence as the crime itself, that is, by proof beyond reasonable doubt(People v. Caballero, G.R. Nos. 149028-30, prom. April 2, 2003; People v. Gregorio, G.R. No. 153781, prom. September 24, 2003).

22.     To be sure, the trial court could not rely on the affidavits not affirmed by the affiants’ court testimony.  The admission of hearsay evidence would be a violation of the constitutional provision that the accused shall enjoy the right to confront and cross-examine the witness testifying against him (People v. Feliciano Ulit, G.R. Nos. 131799-801, prom. February 23, 2004).

23.     Consequently, it was egregious error for the trial court to consider the joint affidavit of Arsenio Darasin, Ricardo Cabanbang and Joseph Flores, as well as the affidavit of the victim.  Affidavits of persons who are not presented to testify on the

truth of the contents thereof are hearsay evidence (Vallarta v. Court of Appeals, 163 SCRA 587 [1989]).

x x x.[13]

The Court’s Decision

We have reviewed the entire records of this case and we fully agree with the position taken by the Solicitor General.  As the Solicitor General recognizes, we operate under a system that unshakeably puts the burden of proof on the prosecution.[14]

This burden has not been discharged, and was hardly even attempted to be discharged, by the prosecution in this case.  It was content to rely on the admissions made at the pre-trial hearing and the introduction and offer in evidence of the two letters allegedly written by the victim to his wife.

The admissions at the pre-trial hearing, however, showed only that:

1.   Gerry Mag-isa was kidnapped and detained for seven days;

2.   appellant Esmer Montenegro was among the group at the mountains of Umalag where the victim was brought, which consisted of Kiking Salahay, alias Enrique Mendoza, Freddie Maca, Badil Salahay, Mama Montenegro and Florie Montenegro;

3.   the letters informed the victim’s wife of his kidnapping and detention and the amount demanded for his release;

The pre-trial admissions do not show that appellant participated in the kidnapping of Gerry Mag-isa.

The evidence on record of appellant’s participation is his own narration of how he found himself with the group without knowing that a kidnapping had transpired and, in his defense, he insists that he stayed with the group because of the compulsion of an irresistible force exerted on him when Kiking Salahay stated in reply to his request to be allowed to go home, that it would be better for all of them if they just killed appellant.

If the prosecution had proved conspiracy as alleged in the information, these admissions would be relevant and material in determining the guilt of appellant.  However, no proof to this effect was presented.  Hence, it cannot be determined what the specific role of appellant was in the commission of the crime.  No conspiracy having been proved, appellant cannot be convicted for a crime where his participation is not established. As noted by the Solicitor General in his brief, “absent any overt act of appellant which would be construed as necessary or essential to the perpetration of the kidnapping for ransom and serious illegal detention, mere presence at the locus

criminis cannot by itself be a valid basis for conviction. Mere knowledge, acquiescence to or agreement to cooperate, is not enough to constitute one as a party to a conspiracy, absent any active participation in the commission of the crime.”[15]

The trial court utilized the affidavit of the victim Gerry Mag-isa as well as the joint affidavit of Arsenio L. Darasin, Ricardo P. Cabangbang, Joseph C. Flores and Roy I. Tante to support its findings of appellant’s participation and culpability.

The record is bereft of any evidence to show that these affidavits were ever presented or offered as evidence for the prosecution, nor were the persons who executed them ever presented to affirm what was in the affidavits nor to offer oral testimony on the circumstances of the alleged kidnapping. Hence, they are of no value in the determination of the guilt of appellant.  As we said in Osias v. Court of Appeals,[16] “allegations in an affidavit not testified upon in the trial are mere hearsay evidence and have no substantial evidential value.” In People v. Santos,[17] we ruled:

Indeed it appears that the only source of the above findings of fact of the trial court is “Exhibit C,” the sworn statement of Romeo Fernandez.  Since the affiant himself never took the stand during the trial, his sworn statement is absolutely inadmissible in evidence for being hearsay.  The admission of such hearsay evidence and the conviction of the accused on the basis thereof gravely violated their constitutional right to meet their witnesses face to face and to subject them to the rigid test of cross-examination. As we said in an earlier case, “the constitutional right to confrontation precludes reliance on such affidavits. Such a constitutional safeguard cannot be satisfied unless the opportunity is given the accused to test the credibility of any person, who, by affidavit or deposition would impute the commission of an offense to him.”

Furthermore, Section 34, Rule 132 of the Rules of Court specifically provides that “the court shall consider no evidence which has not been formally offered.  The purpose for which the evidence is offered must be specified.”

Again, we find nothing in the record that would show that these affidavits were offered in evidence.

Lastly, without going into the validity of appellant’s defense of having acted under the compulsion of an irresistible force, the fact established by his own testimony which was not rebutted by the prosecution, was that he had no idea that a kidnapping had been committed as he was just invited by his uncle to go with him to collect money from someone. When he tried to leave the group, he was threatened with death.  Nowhere in all the evidence of the prosecution does it show that appellant performed any overt act that would implicate him as an accomplice or participant in the crime.

The trial court brushed away this defense as not sufficiently proved. It also refused to believe the testimonies of appellant and of the Barangay Captain of Caromate, Felicula Gran, that he reported the incident after he was released, as mere “afterthought.”  Yet what the trial court failed to perceive was that the evidence for the

prosecution was weak, if not nil. Consequently, the trial court, in an untenable lapse of judgment, decided to consider only the alleged weaknesses of the defense to arrive at the conclusion that appellant is guilty and not the strength or weaknesses of the prosecution’s case.  From our review of the records, we find that the prosecution in this case has utterly failed in its duty to overcome by proof beyond reasonable doubt the presumption of innocence of appellant.

WHEREFORE, the decision of the Regional Trial Court of Tandag, Surigao del Sur, Branch 27, dated November 20, 2002, in Criminal Case No. 4306, is REVERSED and SET ASIDE and appellant Esmer Montenegro is hereby ACQUITTED.

The National Bureau of Investigation is DIRECTED to assist in the arrest of the other accused in this case who are at large, for them to undergo arraignment and trial.  Let a copy of this Decision be furnished its Director.

No costs.

SO ORDERED.

Davide, Jr., C.J., Puno, Panganiban, Quisumbing, Ynares-Santiago, Carpio, Austria-Martinez, Corona, Carpio-Morales, Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.

Sandoval-Gutierrez, J., on leave.

[1] Records, p. 44.

[2] Records, pp. 68, 71, 72.

[3] Records, p. 143.

[4] Records, p. 140.

[5] TSN, September 5, 2002, pp. 4-28.

[6] TSN, October 8, 2002, pp. 3-7.

[7] Rollo, p. 17.

[8] Records, pp. 207-209.

[9] Rollo, p. 33.

[10] Rollo, p. 31.

[11] 305 SCRA 740 (1999).

[12] Rollo, pp. 55-75.

[13] Rollo, pp. 61-69.

[14] People v. Eslaban, 218 SCRA 534 (1993).

[15] Rollo, p. 67.

[16] 256 SCRA 101, 118 (1996).

[17] 139 SCRA 583, 586 (1985).