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SUSAN NICDAO CARIÑO, petitioner, vs. SUSAN YEE CARIÑO, respondent.

D E C I S I O N

YNARES-SANTIAGO, J.:

The issue for resolution in the case at bar hinges on the validity of the two marriages contracted by the deceased SPO4 Santiago S. Cariño, whose “death benefits” is now the subject of the controversy between the two Susans whom he married.

Before this Court is a petition for review on certiorari seeking to set aside the decision[1] of the Court of Appeals in CA-G.R. CV No. 51263, which affirmed in toto the decision[2] of the Regional Trial Court of Quezon City, Branch 87, in Civil Case No. Q-93-18632.

During the lifetime of the late SPO4 Santiago S. Cariño, he contracted two marriages, the first was on June 20, 1969, with petitioner Susan Nicdao Cariño (hereafter referred to as Susan Nicdao), with whom he had two offsprings, namely, Sahlee and Sandee Cariño; and the second was on November 10, 1992, with respondent Susan Yee Cariño (hereafter referred to as Susan Yee), with whom he had no children in their almost ten year cohabitation starting way back in 1982.

In 1988, SPO4 Santiago S. Cariño became ill and bedridden due to diabetes complicated by pulmonary tuberculosis.  He passed away on November 23, 1992, under the care of Susan Yee, who spent for his medical and burial expenses.  Both petitioner and respondent filed claims for monetary benefits and financial assistance pertaining to the deceased from various government agencies.   Petitioner Susan Nicdao was able to collect a total of P146,000.00 from “MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig,”[3] while respondent Susan Yee received a total of P21,000.00 from “GSIS Life, Burial (GSIS) and burial (SSS).”[4]

On December 14, 1993, respondent Susan Yee filed the instant case for collection of sum of money against petitioner Susan Nicdao praying, inter alia, that petitioner be ordered to return to her at least one-half of the one hundred forty-six thousand pesos (P146,000.00) collectively denominated as “death benefits” which she (petitioner) received from “MBAI, PCCUI, Commutation, NAPOLCOM, [and] Pag-ibig.” Despite service of summons, petitioner failed to file her answer, prompting the trial court to declare her in default.

Respondent Susan Yee admitted that her marriage to the deceased took place during the subsistence of, and without first obtaining a judicial declaration of nullity of, the marriage between petitioner and the deceased.  She, however, claimed that she had no knowledge of the previous marriage and that she became aware of it only at the funeral of the deceased, where she met petitioner who introduced herself as the wife of the deceased.  To bolster her action for collection of sum of money, respondent contended that the marriage of petitioner and the deceased is void ab initio because the same was solemnized without the required marriage license.  In support thereof, respondent presented: 1) the marriage certificate of the deceased and the petitioner which bears no marriage license number; [5] and 2) a certification dated March 9, 1994, from the Local Civil Registrar of San Juan, Metro Manila, which reads –

This is to certify that this Office has no record of marriage license of the spouses SANTIAGO CARINO (sic) and SUSAN NICDAO, who are married in this municipality on June 20, 1969.  Hence, we cannot issue as requested a true copy or transcription of Marriage License number from the records of this archives.

This certification is issued upon the request of Mrs. Susan Yee Cariño for whatever legal purpose it may serve.[6]

On August 28, 1995, the trial court ruled in favor of respondent, Susan Yee, holding as follows:

WHEREFORE, the defendant is hereby ordered to pay the plaintiff the sum of P73,000.00, half of the amount which was paid to her in the form of death benefits arising from the death of SPO4 Santiago S. Cariño, plus attorney’s fees in the amount of P5,000.00, and costs of suit.

IT IS SO ORDERED.[7]

On appeal by petitioner to the Court of Appeals, the latter affirmed in toto the decision of the trial court.  Hence, the instant petition, contending that:

I.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE FINDINGS OF THE LOWER COURT THAT VDA. DE CONSUEGRA VS. GSIS IS APPLICABLE TO THE CASE AT BAR.

II.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN APPLYING EQUITY IN THE INSTANT CASE INSTEAD OF THE CLEAR AND UNEQUIVOCAL MANDATE OF THE FAMILY CODE.

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT FINDING THE CASE OF VDA. DE CONSUEGRA VS GSIS TO HAVE BEEN MODIFIED, AMENDED AND EVEN ABANDONED BY THE ENACTMENT OF THE FAMILY CODE.[8]

Under Article 40 of the Family Code, the absolute nullity of a previous marriage may be invoked for purposes of remarriage on the basis solely of a final judgment declaring such previous marriage void.  Meaning, where the absolute nullity of a previous marriage is sought to be invoked for purposes of contracting a second marriage, the sole basis acceptable in law, for said projected marriage to be free from legal infirmity, is a final judgment declaring the previous marriage void. [9] However, for purposes other than remarriage, no judicial action is necessary to declare a marriage an absolute nullity.  For other purposes, such as but not limited to the determination of heirship, legitimacy or illegitimacy of a child, settlement of estate, dissolution of property regime, or a criminal case for that matter, the court may pass upon the validity of marriage even after the death of the parties thereto, and even in a suit not directly instituted to question the validity of said marriage, so long as it is essential to the determination of the case. [10] In such instances, evidence must be adduced, testimonial or documentary, to prove the existence of grounds rendering such a previous marriage an absolute nullity.   These need not be limited solely to an earlier final judgment of a court declaring such previous marriage void.[11]

It is clear therefore that the Court is clothed with sufficient authority to pass upon the validity of the two marriages in this case, as the same is essential to the determination of who is rightfully entitled to the subject “death benefits” of the deceased.

Under the Civil Code, which was the law in force when the marriage of petitioner Susan Nicdao and the deceased was solemnized in 1969, a valid marriage license is a requisite of  marriage,[12] and the absence thereof, subject to certain exceptions,[13] renders the marriage voidab initio.[14]

In the case at bar, there is no question that the marriage of petitioner and the deceased does not fall within the marriages exempt from the license requirement.  A marriage license, therefore, was indispensable to the validity of their marriage.  This notwithstanding, the records reveal that the marriage contract of petitioner and the deceased bears no marriage license number and, as certified by the Local Civil Registrar of San Juan, Metro Manila, their office has no record of such marriage license.   In Republic v. Court of Appeals,[15] the Court held that such a certification is adequate to prove the non-issuance of a marriage license.  Absent any circumstance of suspicion, as in the present case, the certification issued by the local civil registrar enjoys probative value, he being the officer charged under the law to keep a record of all data relative to the issuance of a marriage license.

Such being the case, the presumed validity of the marriage of petitioner and the deceased has been sufficiently overcome.   It then became the burden of petitioner to prove that their marriage is valid and that they secured the required marriage license.   Although she was declared in default before the trial court, petitioner could have squarely met the issue and explained the absence of a marriage license in her pleadings before the Court of Appeals and this Court.  But petitioner conveniently avoided the issue and chose to refrain from pursuing an argument that will put her case in jeopardy.  Hence, the presumed validity of their marriage cannot stand.

It is beyond cavil, therefore, that the marriage between petitioner Susan Nicdao and the deceased, having been solemnized without the necessary marriage license, and not being one of the marriages exempt from the marriage license requirement, is undoubtedly void ab initio.

It does not follow from the foregoing disquisition, however, that since the marriage of petitioner and the deceased is declared void ab initio, the “death benefits” under scrutiny would now be awarded to respondent Susan Yee.  To reiterate, under Article 40 of the Family Code, for purposes of remarriage, there must first be a prior judicial declaration of the nullity of a previous marriage, though void, before a party can enter into a second marriage, otherwise, the second marriage would also be void.

Accordingly, the declaration in the instant case of nullity of the previous marriage of the deceased and petitioner Susan Nicdao does not validate the second marriage of the deceased with respondent Susan Yee.  The fact remains that their marriage was solemnized without first obtaining a judicial decree declaring the marriage of petitioner Susan Nicdao and the deceased void.  Hence, the marriage of respondent Susan Yee and the deceased is, likewise, void ab initio.

One of the effects of the declaration of nullity of marriage is the separation of the property of the spouses according to the applicable property regime.[16] Considering that the two marriages are void ab initio, the applicable property regime would not be absolute community or conjugal partnership of property, but rather, be governed by the provisions of Articles 147 and 148 of the Family Code on “Property Regime of Unions Without Marriage.”

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document.docUnder Article 148 of the Family Code, which refers to the property regime of bigamous marriages, adulterous relationships,

relationships in a state of concubine, relationships where both man and woman are married to other persons, multiple alliances of the same married man,[17] -

“... [O]nly the properties acquired by both of the parties through their actual joint contribution of money, property, or industry shall be owned by them in common in proportion to their respective contributions ...”

In this property regime, the properties acquired by the parties through their actual joint contribution shall belong to the co-ownership.  Wages and salaries earned by each party belong to him or her exclusively.  Then too, contributions in the form of care of the home, children and household, or spiritual or moral inspiration, are excluded in this regime.[18]

Considering that the marriage of respondent Susan Yee and the deceased is a bigamous marriage, having been solemnized during the subsistence of a previous marriage then presumed to be valid (between petitioner and the deceased), the application of Article 148 is therefore in order.

The disputed P146,000.00 from MBAI [AFP Mutual Benefit Association, Inc.], NAPOLCOM, Commutation, Pag-ibig, and PCCUI, are clearly renumerations, incentives and benefits from governmental agencies earned by the deceased as a police officer.  Unless respondent Susan Yee presents proof to the contrary, it could not be said that she contributed money, property or industry in the acquisition of these monetary benefits.  Hence, they are not owned in common by respondent and the deceased, but belong to the deceased alone and respondent has no right whatsoever to claim the same.  By intestate succession, the said “death benefits” of the deceased shall pass to his legal heirs.  And, respondent, not being the legal wife of the deceased is not one of them.

As to the property regime of petitioner Susan Nicdao and the deceased, Article 147 of the Family Code governs.   This article applies to unions of parties who are legally capacitated and not barred by any impediment to contract marriage, but whose marriage is nonetheless void for other reasons, like the absence of a marriage license.  Article 147 of the Family Code reads -

Art. 147.  When a man and a woman who are capacitated to marry each other, live exclusively with each other as husband and wife without the benefit of marriage or under a void marriage, their wages and salaries shall be owned by them in equal shares and the property acquired by both of them through their work or industry shall be governed by the rules on co-ownership.

In the absence of proof to the contrary, properties acquired while they lived together shall be presumed to have been obtained by their joint efforts, work or industry, and shall be owned by them in equal shares.  For purposes of this Article, a party who did not participate in the acquisition by the other party of any property shall be deemed to have contributed jointly in the acquisition thereof if the former’s efforts consisted in the care and maintenance of the family and of the household.

x x x                              x x x                       x x x

When only one of the parties to a void marriage is in good faith, the share of the party in bad faith in the co-ownership shall be forfeited in favor of their common children.  In case of default of or waiver by any or all of the common children or their descendants, each vacant share shall belong to the respective surviving descendants.  In the absence of descendants, such share shall belong to the innocent party.  In all cases, the forfeiture shall take place upon termination of the cohabitation.

In contrast to Article 148, under the foregoing article, wages and salaries earned by either party during the cohabitation shall be owned by the parties in equal shares and will be divided equally between them, even if only one party earned the wages and the other did not contribute thereto.[19] Conformably, even if the disputed “death benefits” were earned by the deceased alone as a government employee, Article 147 creates a co-ownership in respect thereto, entitling the petitioner to share one-half thereof.  As there is no allegation of bad faith in the present case, both parties of the first marriage are presumed to be in good faith.   Thus, one-half of the subject “death benefits” under scrutiny shall go to the petitioner as her share in the property regime, and the other half pertaining to the deceased shall pass by, intestate succession, to his legal heirs, namely, his children with Susan Nicdao.

In affirming the decision of the trial court, the Court of Appeals relied on the case of  Vda. de Consuegra v. Government Service Insurance System,[20] where the Court awarded one-half of the retirement benefits of the deceased to the first wife and the other half, to the second wife, holding that:

“... [S]ince the defendant’s first marriage has not been dissolved or declared void the conjugal partnership established by that marriage has not ceased.  Nor has the first wife lost or relinquished her status as putative heir of her husband under the new Civil Code, entitled to share in his estate upon his death should she survive him.  Consequently, whether as conjugal partner in a still subsisting marriage or as such putative heir she has an interest in the husband’s share in the property here in dispute....” And with respect to the right of the second wife, this Court observed that although the second marriage can be presumed to be void ab initio as it was celebrated while the first marriage

was still subsisting, still there is need for judicial declaration of such nullity.  And inasmuch as the conjugal partnership formed by the second marriage was dissolved before judicial declaration of its nullity, “[t]he only just and equitable solution in this case would be to recognize the right of the second wife to her share of one-half in the property acquired by her and her husband, and consider the other half as pertaining to the conjugal partnership of the first marriage.”[21]

It should be stressed, however, that the aforecited decision is premised on the rule which requires a prior and separate judicial declaration of nullity of marriage.  This is the reason why in the said case, the Court determined the rights of the parties in accordance with their existing property regime.

In Domingo v. Court of Appeals,[22] however, the Court, construing Article 40 of the Family Code,  clarified that a prior and separate declaration of nullity of a marriage is an all important condition precedent only for purposes of remarriage.  That is, if a party who is previously married wishes to contract a second marriage, he or she has to obtain first a judicial decree declaring the first marriage void, before he or she could contract said second marriage, otherwise the second marriage would be void.  The same rule applies even if the first marriage is patently void because the parties are not free to determine for themselves the validity or invalidity or their marriage.   However, for purposes other than to remarry, like for filing a case for collection of sum of money anchored on a marriage claimed to be valid, no prior and separate judicial declaration of nullity is necessary.  All that a party has to do is to present evidence, testimonial or documentary, that would prove that the marriage from which his or her rights flow is in fact valid.   Thereupon, the court, if material to the determination of the issues before it, will rule on the status of the marriage involved and proceed to determine the rights of the parties in accordance with the applicable laws and jurisprudence.  Thus, in Niñal v. Bayadog,[23] the Court explained:

[T]he court may pass upon the validity of marriage even in a suit not directly instituted to question the same so long as it is essential to the determination of the case.  This is without prejudice to any issue that may arise in the case.  When such need arises, a final judgment of declaration of nullity is necessary even if the purpose is other than to remarry.  The clause “on the basis of a final judgment declaring such previous marriage void” in Article 40 of the Family Code connoted that such final judgment need not be obtained only for purpose of remarriage.

WHEREFORE, the petition is GRANTED, and the decision of the Court of Appeals in CA-G.R. CV No. 51263 which affirmed the decision of the Regional Trial Court of Quezon City ordering petitioner to pay respondent the sum of P73,000.00 plus attorney’s fees in the amount of P5,000.00, is REVERSED and SET ASIDE.  The complaint in Civil Case No. Q-93-18632, is hereby DISMISSED.  No pronouncement as to costs.

SO ORDERED.

SECOND DIVISION

[G.R. No. 116607.  April 10, 1996]

EMILIO TUASON, petitioner, vs. COURT OF APPEALS and MARIA VICTORIA L. TUASON, respondents.

D E C I S I O N

PUNO, J.:

This petition for review on certiorari seeks to annul and set aside the decision dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 denying petitioner’s appeal from an order of the Regional Trial Court, Branch 149, Makati in Civil Case No. 3769.

This case arose from the following facts:

In 1989, private respondent Maria Victoria Lopez Tuason filed with the Regional Trial Court, Branch 149, Makati a petition for annulment or declaration of nullity of her marriage to petitioner Emilio R. Tuason. In her complaint, private respondent alleged that she and petitioner were married on June 3, 1972 and from this union, begot two children; that at the time of the marriage, petitioner was already psychologically incapacitated to comply with his essential marital obligations which became manifest afterward and resulted in violent fights between husband and wife; that in one of their fights, petitioner inflicted physical injuries on private respondent which impelled her to file a criminal case for physical injuries against him; that petitioner used prohibited drugs, was apprehended by the authorities and sentenced

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document.docto a one-year suspended penalty and has not been rehabilitated; that petitioner was a womanizer, and in 1984, he left the conjugal home and cohabited with three women in succession, one of whom he presented to the public as his wife; that after he left the conjugal dwelling, petitioner gave minimal support to the family and even refused to pay for the tuition fees of their children compelling private respondent to accept donations and dole-outs from her family and friends; that petitioner likewise became a spendthrift and abused his administration of the conjugal partnership by alienating some of their assets and incurring large obligations with banks, credit card companies and other financial institutions, without private respondent’s consent; that attempts at reconciliation were made but they all failed because of petitioner’s refusal to reform. In addition to her prayer for annulment of marriage, private respondent prayed for powers of administration to save the conjugal properties from further dissipation.[1]

Petitioner answered denying the imputations against him.  As affirmative defense, he claimed that he and private respondent were a normal married couple during the first ten years of their marriage and actually begot two children during this period; that it was only in 1982 that they began to have serious personal differences when his wife did not accord the respect and dignity due him as a husband but treated him like a persona non grata; that due to the “extreme animosities” between them, he temporarily left the conjugal home for a “cooling-off period” in 1984; that it is private respondent who had been taking prohibited drugs and had a serious affair with another man; that petitioner’s work as owner and operator of a radio and television station exposed him to malicious gossip linking him to various women in media and the entertainment world; and that since 1984, he experienced financial reverses in his business and was compelled, with the knowledge of his wife, to dispose of some of the conjugal shares in exclusive golf and country clubs.  Petitioner petitioned the court to allow him to return to the conjugal home and continue his administration of the conjugal partnership.

After the issues were joined, trial commenced on March 30, 1990. Private respondent presented four witnesses, namely, herself; Dr. Samuel Wiley, a Canon Law expert and marriage counselor of both private respondent and petitioner; Ms. Adelita Prieto, a close friend of the spouses, and Any. Jose F. Racela IV, private respondent’s counsel.  Private respondent likewise submitted documentary evidence consisting of newspaper articles of her husband’s relationship with other women, his apprehension by the authorities for illegal possession of drugs; and copies of a prior church annulment decree. [2] The parties’ marriage was clerically annulled by the Tribunal Metropolitanum Matrimoniale which was affirmed by the National Appellate Matrimonial Tribunal in 1986.[3]

During presentation of private respondent’s evidence, petitioner, on April 18, 1990, filed his Opposition to private respondent’s petition for appointment as administratrix of the conjugal partnership of gains.

After private respondent rested her case, the trial court scheduled the reception of petitioner’s evidence on May 11, 1990.

On May 8, 1990, two days before the scheduled hearing, a counsel for petitioner moved for a postponement on the ground that the principal counsel was out of the country and due to return on the first week of June. [4] The court granted the motion and reset the hearing to June 8, 1990.[5]

On June 8, 1990, petitioner failed to appear. On oral motion of private respondent, the court declared petitioner to have waived his right to present evidence and deemed the case submitted for decision on the basis of the evidence presented.

On June 29, 1990, the trial court rendered judgment declaring the nullity of private respondent’s marriage to petitioner and awarding custody of the children to private respondent.  The court ruled:

“WHEREFORE, in view of the foregoing, the marriage contracted by Ma. Victoria L. Tuason and Emilio R. Tuason on June 3, 1972 is declared null and void oh initio on the ground of psychological incapacity on the part of the defendant under Sec. 36 of the Family Code.  Let herein judgment of annulment be recorded in the registry of Mandaluyong, Metro Manila where the marriage was contracted and in the registry of Makati, Metro Manila where the marriage is annulled.

The custody of the two (2) legitimate children of the plaintiff and the defendant is hereby awarded to the plaintiff.

The foregoing judgment is without prejudice to the application of the other effects of annulment as provided for under Arts. 50 and 51 of the Family Code of the Philippines.”[6]

Counsel for petitioner received a copy of this decision on August 24, 1990. No appeal was taken from the decision.

On September 24, 1990, private respondent filed a “Motion for Dissolution of Conjugal Partnership of Gains and Adjudication to Plaintiff of the Conjugal Properties.”[7] Petitioner opposed the motion on October 17, 1990[8]

Also on the same day, October 17, 1990, petitioner, through new counsel, filed with the trial court a petition for relief from judgment of the June 29, 1990 decision.

The trial court denied the petition on August 8, 1991.[9]

Petitioner appealed before the Court of Appeals the order of the trial court denying his petition for relief from judgment. On July 29, 1994, the Court of Appeals dismissed the appeal and affirmed the order of the trial court.[10]

Hence this petition.

The threshold issue is whether a petition for relief from judgment is warranted under the circumstances of the case.

We rule in the negative.

A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised Rules of Court which provides:

“Section 2. Petition to Court of First Instance for relief from judgment or other proceedings thereof. - When a judgment or order is entered, or any other proceeding is taken, against a party in a court of first instance through fraud, accident, mistake, or excusable negligence, he may file a petition in such court and in the same cause praying that the judgment, order or proceeding be set aside.”

Under the rules, a final and executory judgment or order of the Regional Trial Court may be set aside on the ground of fraud, accident, mistake or excusable negligence.  In addition, the petitioner must assert facts showing that he has a good, substantial and meritorious defense or cause of action.[11] If the petition is granted, the court shall proceed to hear and determine the case as if a timely motion for new trial had been granted therein.[12]

In the case at bar, the decision annulling petitioner’s marriage to private respondent had already become final and executory when petitioner failed to appeal during the reglementary period.  Petitioner however claims that the decision of the trial court was null and void for violation of his right to due process.  He contends he was denied due process when, after failing to appear on two scheduled hearings, the trial court deemed him to have waived his right to present evidence and rendered judgment on the basis of the evidence for private respondent.  Petitioner justifies his absence at the hearings on the ground that he was then “confined for medical and/or rehabilitation reasons.”[13] In his affidavit of merit before the trial court, he attached a certification by Lt. Col. Plaridel F. Vidal, Director of the Narcotics Command, Drug Rehabilitation Center which states that on March 27, 1990 petitioner was admitted for treatment of drug dependency at the Drug Rehabilitation Center at Camp Bagong Diwa, Bicutan, Taguig, Metro Manila of the Philippine Constabulary-Integrated National Police.[14] The records, however, show that the former counsel of petitioner did not inform the trial court of this confinement. And when the court rendered its decision, the same counsel was out of the country for which reason the decision became final and executory as no appeal was taken therefrom.[15]

The failure of petitioner’s counsel to notify him on time of the adverse judgment to enable him to appeal therefrom is negligence which is not excusable. Notice sent to counsel of record is binding upon the client and the neglect or failure of counsel to inform him of an adverse judgment resulting in the loss of his right to appeal is not a ground for setting aside a judgment valid and regular on its face.[16]

Similarly inexcusable was the failure of his former counsel to inform the trial court of petitioner’s confinement and medical treatment as the reason for his non-appearance at the scheduled hearings.  Petitioner has not given any reason why his former counsel, intentionally or unintentionally, did not inform the court of this fact.  This led the trial court to order the case deemed submitted for decision on the basis of the evidence presented by the private respondent alone.  To compound the negligence of petitioner’s counsel, the order of the trial court was never assailed via a motion for reconsideration.

Clearly, petitioner cannot now claim that he was deprived of due process.  He may have lost his right to present evidence but he was not denied his day in court.  As the records show, petitioner, through counsel, actively participated in the proceedings below.  He filed his answer to the petition, cross-examined private respondent’s witnesses and even submitted his opposition to private respondent’s motion for dissolution of the conjugal partnership of gains.[17]

A petition for relief from judgment is an equitable remedy; it is allowed only in exceptional cases where there is no other available or adequate remedy. When a party has another remedy available to him, which may be either a motion for new trial or appeal from an adverse decision of the trial court, and he was not prevented by fraud, accident, mistake or excusable negligence from filing such motion or taking such appeal, he cannot avail himself of this petition. [18] Indeed, relief will not be granted to a party who seeks avoidance from the effects of the judgment when the loss of the remedy at law was due to his own negligence; otherwise the petition for relief can be used to revive the right to appeal which had been lost thru inexcusable negligence.[19]

Petitioner also insists that he has a valid and meritorious defense. He cites the Family Code which provides that in actions for annulment of marriage or legal separation, the prosecuting officer should intervene for the state because the law “looks with disfavor upon the haphazard declaration of annulment of marriages by default.” He contends that when he failed to appear at the scheduled hearings, the trial court should have ordered the prosecuting officer to intervene for the state and inquire as to the reason for his non-appearance.[20]

Articles 48 and 60 of the Family Code read as follows:

“Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the Court shall order the prosecution attorney or fiscal assigned to it to appear on behalf of the State to take steps to prevent collusion between the parties and to take care that evidence is not fabricated or suppressed.

3

document.docIn the cases referred to in the preceding paragraph, no judgment shall be based upon a stipulation of facts or confession of judgment.”

x x x    x x x      x x x

“Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a confession of judgment.

In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to take steps to prevent collusion between the parties and to take care that the evidence is not fabricated or suppressed.”[21]

A grant of annulment of marriage or legal separation by default is fraught with the danger of collusion. [22] Hence, in all cases for annulment, declaration of nullity of marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear on behalf of the state for the purpose of preventing any collusion between the parties and to take care that their evidence is not fabricated or suppressed. If the defendant spouse fails to answer the complaint, the court cannot declare him or her in default but instead, should order the prosecuting attorney to determine if collusion exists between the parties.[23] The prosecuting attorney or fiscal may oppose the application for legal separation or annulment through the presentation of his own evidence, if in his opinion, the proof adduced is dubious and fabricated. [24] Our Constitution is committed to the policy of strengthening the family as a basic social institution. [25] Our family law is based on the policy that marriage is not a mere contract, but a social institution in which the state is vitally interested.  The state can find no stronger anchor than on good, solid and happy families.  The break up of families weakens our social and moral fabric and, hence, their preservation is not the concern alone of the family members.

The facts in the case at bar do not call for the strict application of Articles 48 and 60 of the Family Code. For one, petitioner was not declared in default by the trial court for failure to answer.  Petitioner filed his answer to the complaint and contested the cause of action alleged by private respondent.  He actively participated in the proceedings below by filing several pleadings and cross-examining the witnesses of private respondent. It is crystal clear that every stage of the litigation was characterized by a no-holds barred contest and not by collusion.

The role of the prosecuting attorney or fiscal in annulment of marriage and legal separation proceedings is to determine whether collusion exists between the parties and to take care that the evidence is not suppressed or fabricated. Petitioner’s vehement opposition to the annulment proceedings negates the conclusion that collusion existed between the parties.  There is no allegation by the petitioner that evidence was suppressed or fabricated by any of the parties.  Under these circumstances, we are convinced that the non-intervention of a prosecuting attorney to assure lack of collusion between the contending parties is not fatal to the validity of the proceedings in the trial court.

Petitioner also refutes the testimonies of private respondent’s witnesses, particularly Dr. Samuel Wiley and Ms. Adelita Prieto, as biased, incredible and hearsay.  Petitioner alleges that if he were able to present his evidence, he could have testified that he was not psychologically incapacitated at the time of the marriage as indicated by the fact that during their first ten years, he and private respondent lived together with their children as one normal and happy family, that he continued supporting his family even after he left the conjugal dwelling and that his work as owner and operator of a radio and television corporation places him in the public eye and makes him a good subject for malicious gossip linking him with various women.  These facts, according to petitioner, should disprove the ground for annulment of his marriage to petitioner.

Suffice it to state that the finding of the trial court as to the existence or non-existence of petitioner’s psychological incapacity at the time of the marriage is final and binding on us.[26] Petitioner has not sufficiently shown that the trial court’s factual findings and evaluation of the testimonies of private respondent’s witnesses vis-a-vis petitioner’s defenses are clearly and manifestly erroneous.[27]

IN VIEW WHEREOF, the petition is denied and the decision dated July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 is affirmed.

SO ORDERED.

JOSE DE OCAMPO, petitioner, vs.SERAFINA FLORENCIANO, respondent.

Joselito J. Coloma for petitioner.

BENGZON, J.:

Action for legal separation by Jose de Ocampo against his wife Serafina, on the ground of adultery. The court of first instance of Nueva Ecija dismissed it. The Court of Appeals affirmed, holding there was confession of judgment, plus condonation or consent to the adultery and prescription.

We granted certiorari to consider the application of articles 100 and 101 of the New Civil Code, which for convenience are quoted herewith:

ART. 100.—The legal separation may be claimed only by the innocent spouse, provided there has been no condonation of or consent to the adultery or concubinage. Where both spouses are offenders, a legal separation cannot be claimed by either of them. Collusion between the parties to obtain legal separation shall cause the dismissal of the petition.

ART. 101.—No decree of legal separation shall be promulgated upon a stipulation of facts or by confession of judgment.

In case of non-appearance of the defendant, the court shall order the prosecuting attorney to inquire whether or not a collusion between the parties exists. If there is no collusion, the prosecuting attorney shall intervene for the State in order to take care that the evidence for the plaintiff is not fabricated.

The record shows that on July 5, 1955, the complaint for legal separation was filed. As amended, it described their marriage performed in 1938, and the commission of adultery by Serafina, in March 1951 with Jose Arcalas, and in June 1955 with Nelson Orzame.

Because the defendant made no answer, the court defaulted her, and pursuant to Art. 101 above, directed the provincial fiscal to investigate whether or not collusion existed between the parties. The fiscal examined the defendant under oath, and then reported to the Court that there was no collusion. The plaintiff presented his evidence consisting of the testimony of Vicente Medina, Ernesto de Ocampo, Cesar Enriquez, Mateo Damo, Jose de Ocampo and Capt. Serafin Gubat.

According to the Court of Appeals, the evidence thus presented shows that "plaintiff and defendant were married in April 5, 1938 by a religious ceremony in Guimba, Nueva Ecija, and had lived thereafter as husband and wife. They begot several children who are now living with plaintiff. In March, 1951, plaintiff discovered on several occasions that his wife was betraying his trust by maintaining illicit relations with one Jose Arcalas. Having found the defendant carrying marital relations with another man plaintiff sent her to Manila in June 1951 to study beauty culture, where she stayed for one year. Again, plaintiff discovered that while in the said city defendant was going out with several other men, aside from Jose Arcalas. Towards the end of June, 1952, when defendant had finished studying her course, she left plaintiff and since then they had lived separately.

"On June 18, 1955, plaintiff surprised his wife in the act of having illicit relations with another man by the name of Nelson Orzame. Plaintiff signified his intention of filing a petition for legal separation, to which defendant manifested her conformity provided she is not charged with adultery in a criminal action. Accordingly, plaintiff filed on July 5, 1955, a petition for legal separation."

The Court of Appeals held that the husband's right to legal separation on account of the defendant's adultery with Jose Arcalas had prescribed, because his action was not filed within one year from March 1951 when plaintiff discovered her infidelity. (Art. 102, New Civil Code) We must agree with the Court of Appeals on this point.1

As to the adultery with Nelson Orzame, the appellate court found that in the night of June 18, 1955, the husband upon discovering the illicit connection, expressed his wish to file a petition for legal separation and defendant readily agreed to such filing. And when she was questioned by the Fiscal upon orders of the court, she reiterated her conformity to the legal separation even as she admitted having had sexual relations with Nelson Orzame. Interpreting these facts virtually to mean a confession of judgment the Appellate Court declared that under Art. 101, legal separation could not be decreed.

As we understand the article, it does not exclude, as evidence, any admission or confession made by the defendant outside of the court. It merely prohibits a decree of separation upon a confession of judgment. Confession of judgment usually happens when the defendant appears in court and confesses the right of plaintiff to judgment or files a pleading expressly agreeing to the plaintiff's demand.2 This is not occur.

Yet, even supposing that the above statement of defendant constituted practically a confession of judgment, inasmuch as there is evidence of the adultery independently of such statement, the decree may and should be granted, since it would not be based on her confession, but upon evidence presented by the plaintiff. What the law prohibits is a judgment based exclusively or mainly on defendant's confession. If a confession defeats the action ipso facto, any defendant who opposes the separation will immediately confess judgment, purposely to prevent it.

The mere circumstance that defendants told the Fiscal that she "like also" to be legally separated from her husband, is no obstacle to the successful prosecution of the action. When she refused to answer the complaint, she indicated her willingness to be separated. Yet, the law does not order the dismissal. Allowing the proceeding to continue, it takes precautions against collusion, which implies more than consent or lack of opposition to the agreement.

4

document.docNeedless to say, when the court is informed that defendant equally desires the separation and admitted the commission of the offense, it should be doubly careful lest a collusion exists. (The Court of Appeals did not find collusion.)

Collusion in divorce or legal separation means the agreement.

. . . between husband and wife for one of them to commit, or to appear to commit, or to be represented in court as having committed, a matrimonial offense, or to suppress evidence of a valid defense, for the purpose of enabling the other to obtain a divorce. This agreement, if not express, may be implied from the acts of the parties. It is a ground for denying the divorce. (Griffiths vs. Griffiths, 69 N. J. Eq. 689 60 Atl. 1099; Sandoz vs. Sandoz, 107 Ore. 282, 214 Pas. 590.).

In this case, there would be collusion if the parties had arranged to make it appear that a matrimonial offense had been committed although it was not, or if the parties had connived to bring about a legal separation even in the absence of grounds therefor.

Here, the offense of adultery had really taking place, according to the evidence. The defendant could not have falsely toldthe adulterous acts to the Fiscal, because her story might send her to jail the moment her husband requests the Fiscal to prosecute. She could not have practiced deception at such a personal risk.

In this connection, it has been held that collusion may not be inferred from the mere fact that the guilty party confesses to the offense and thus enables the other party to procure evidence necessary to prove it. (Williams vs. Williams, [N. Y.] 40 N. E. (2d) 1017; Rosenweig vs. Rosenweig, 246 N. Y. Suppl. 231; Conyers, vs. Conyers, 224 S. W. [2d] 688.).

And proof that the defendant desires the divorce and makes no defense, is not by itself collusion. (Pohlman vs. Pohlman, [N. J.] 46 Atl. Rep. 658.).

We do not think plaintiff's failure actively to search for defendant and take her home (after the latter had left him in 1952) constituted condonation or consent to her adulterous relations with Orzame. It will be remembered that she "left" him after having sinned with Arcalas and after he had discovered her dates with other men. Consequently, it was not his duty to search for her to bring her home. Hers was the obligation to return.

Two decisions3 are cited wherein from apparently similar circumstances, this Court inferred the husband's consent to or condonation of his wife's misconduct. However, upon careful examination, a vital difference will be found: in both instances, the husband had abandoned his wife; here it was the wife who "left" her husband.

Wherefore, finding no obstacles to the aggrieved husband's petition we hereby reverse the appealed decision and decree a legal separation between these spouse, all the consequent effects. Costs of all instances against Serafina Florenciano. So ordered.

THELMA DUMPIT-MURILLO, petitioner, vs.COURT OF APPEALS, ASSOCIATED BROADCASTING COMPANY, JOSE JAVIER AND EDWARD TAN,respondents.

D E C I S I O N

QUISUMBING, J.:

This petition seeks to reverse and set aside both the Decision1 dated January 30, 2004 of the Court of Appeals in CA-G.R. SP No. 63125 and its Resolution2 dated June 23, 2004 denying the motion for reconsideration. The Court of Appeals had overturned the Resolution3 dated August 30, 2000 of the National Labor Relations Commission (NLRC) ruling that petitioner was illegally dismissed.

The facts of the case are as follows:

On October 2, 1995, under Talent Contract No. NT95-1805,4 private respondent Associated Broadcasting Company (ABC) hired petitioner Thelma Dumpit-Murillo as a newscaster and co-anchor for Balitang-Balita, an early evening news program. The contract was for a period of three months. It was renewed under Talent Contracts Nos. NT95-1915, NT96-3002, NT98-4984 and NT99-5649.5 In addition, petitioner’s services were engaged for the program "Live on Five." On September 30, 1999, after four years of repeated renewals, petitioner’s talent

contract expired. Two weeks after the expiration of the last contract, petitioner sent a letter to Mr. Jose Javier, Vice President for News and Public Affairs of ABC, informing the latter that she was still interested in renewing her contract subject to a salary increase. Thereafter, petitioner stopped reporting for work. On November 5, 1999, she wrote Mr. Javier another letter,6 which we quote verbatim:

x x x x

Dear Mr. Javier:

On October 20, 1999, I wrote you a letter in answer to your query by way of a marginal note "what terms and conditions" in response to my first letter dated October 13, 1999. To date, or for more than fifteen (15) days since then, I have not received any formal written reply. xxx

In view hereof, should I not receive any formal response from you until Monday, November 8, 1999, I will deem it as a constructive dismissal of my services.

x x x x

A month later, petitioner sent a demand letter7 to ABC, demanding: (a) reinstatement to her former position; (b) payment of unpaid wages for services rendered from September 1 to October 20, 1999 and full backwages; (c) payment of 13th month pay, vacation/sick/service incentive leaves and other monetary benefits due to a regular employee starting March 31, 1996. ABC replied that a check covering petitioner’s talent fees for September 16 to October 20, 1999 had been processed and prepared, but that the other claims of petitioner had no basis in fact or in law.

On December 20, 1999, petitioner filed a complaint8 against ABC, Mr. Javier and Mr. Edward Tan, for illegal constructive dismissal, nonpayment of salaries, overtime pay, premium pay, separation pay, holiday pay, service incentive leave pay, vacation/sick leaves and 13th month pay in NLRC-NCR Case No. 30-12-00985-99. She likewise demanded payment for moral, exemplary and actual damages, as well as for attorney’s fees.

The parties agreed to submit the case for resolution after settlement failed during the mandatory conference/conciliation. On March 29, 2000, the Labor Arbiter dismissed the complaint.9

On appeal, the NLRC reversed the Labor Arbiter in a Resolution dated August 30, 2000. The NLRC held that an employer-employee relationship existed between petitioner and ABC; that the subject talent contract was void; that the petitioner was a regular employee illegally dismissed; and that she was entitled to reinstatement and backwages or separation pay, aside from 13th month pay and service incentive leave pay, moral and exemplary damages and attorney’s fees. It held as follows:

WHEREFORE, the Decision of the Arbiter dated 29 March 2000 is hereby REVERSED/SET ASIDE and a NEW ONEpromulgated:

1) declaring respondents to have illegally dismissed complainant from her regular work therein and thus, ordering them to reinstate her in her former position without loss of seniority right[s] and other privileges and to pay her full backwages, inclusive of allowances and other benefits, including 13th month pay based on her said latest rate of P28,000.00/mo. from the date of her illegal dismissal on 21 October 1999 up to finality hereof, or at complainant’s option, to pay her separation pay of one (1) month pay per year of service based on said latest monthly rate, reckoned from date of hire on 30 September 1995 until finality hereof;

2) to pay complainant’s accrued SILP [Service Incentive Leave Pay] of 5 days pay per year and 13th month pay for the years 1999, 1998 and 1997 of P19,236.00 and P84,000.00, respectively and her accrued salary from 16 September 1999 to 20 October 1999 of P32,760.00 plus legal interest at 12% from date of judicial demand on 20 December 1999 until finality hereof;

3) to pay complainant moral damages of P500,000.00, exemplary damages of P350,000.00 and 10% of the total of the adjudged monetary awards as attorney’s fees.

Other monetary claims of complainant are dismissed for lack of merit.

SO ORDERED.10

5

document.docAfter its motion for reconsideration was denied, ABC elevated the case to the Court of Appeals in a petition for certiorari under Rule 65. The petition was first dismissed for failure to attach particular documents,11 but was reinstated on grounds of the higher interest of justice.12

Thereafter, the appellate court ruled that the NLRC committed grave abuse of discretion, and reversed the decision of the NLRC.13 The appellate court reasoned that petitioner should not be allowed to renege from the stipulations she had voluntarily and knowingly executed by invoking the security of tenure under the Labor Code. According to the appellate court, petitioner was a fixed-term employee and not a regular employee within the ambit of Article 28014 of the Labor Code because her job, as anticipated and agreed upon, was only for a specified time.15

Aggrieved, petitioner now comes to this Court on a petition for review, raising issues as follows:

I.

THIS HONORABLE COURT CAN REVIEW THE FINDINGS OF THE HONORABLE COURT OF APPEALS, THE DECISION OF WHICH IS NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT[;]

II.

THE PRO-FORMA TALENT CONTRACTS, AS CORRECTLY FOUND BY THE NLRC – FIRST DIVISION, ARE "ANTI-REGULARIZATION DEVICES" WHICH MUST BE STRUCK DOWN FOR REASONS OF PUBLIC POLICY[;]

III.

BY REASON OF THE CONTINUOUS AND SUCCESSIVE RENEWALS OF THE THREE-MONTH TALENT CONTRACTS, AN EMPLOYER-EMPLOYEE RELATIONSHIP WAS CREATED AS PROVIDED FOR UNDER ARTICLE 280 OF THE LABOR CODE[;]

IV.

BY THE CONSTRUCTIVE DISMISSAL OF HEREIN PETITIONER, AS A REGULAR EMPLOYEE, THERE WAS A DENIAL OF PETITIONER’S RIGHT TO DUE PROCESS THUS ENTITLING HER TO THE MONEY CLAIMS AS STATED IN THE COMPLAINT[.]16

The issues for our disposition are: (1) whether or not this Court can review the findings of the Court of Appeals; and (2) whether or not under Rule 45 of the Rules of Court the Court of Appeals committed a reversible error in its Decision.

On the first issue, private respondents contend that the issues raised in the instant petition are mainly factual and that there is no showing that the said issues have been resolved arbitrarily and without basis. They add that the findings of the Court of Appeals are supported by overwhelming wealth of evidence on record as well as prevailing jurisprudence on the matter.17

Petitioner however contends that this Court can review the findings of the Court of Appeals, since the appellate court erred in deciding a question of substance in a way which is not in accord with law or with applicable decisions of this Court.18

We agree with petitioner. Decisions, final orders or resolutions of the Court of Appeals in any case — regardless of the nature of the action or proceeding involved — may be appealed to this Court through a petition for review. This remedy is a continuation of the appellate process over the original case,19 and considering there is no congruence in the findings of the NLRC and the Court of Appeals regarding the status of employment of petitioner, an exception to the general rule that this Court is bound by the findings of facts of the appellate court,20 we can review such findings.

On the second issue, private respondents contend that the Court of Appeals did not err when it upheld the validity of the talent contracts voluntarily entered into by petitioner. It further stated that prevailing jurisprudence has recognized and sustained the absence of employer-employee relationship between a talent and the media entity which engaged the talent’s services on a per talent contract basis, citing the case of Sonza v. ABS-CBN Broadcasting Corporation.21

Petitioner avers however that an employer-employee relationship was created when the private respondents started to merely renew the contracts repeatedly fifteen times or for four consecutive years.22

Again, we agree with petitioner. The Court of Appeals committed reversible error when it held that petitioner was a fixed-term employee. Petitioner was a regular employee under contemplation of law. The practice of having fixed-term contracts in the industry does not automatically make all talent contracts valid and compliant with labor law. The assertion that a talent contract exists does not necessarily prevent a regular employment status.23

Further, the Sonza case is not applicable. In Sonza, the television station did not instruct Sonza how to perform his job. How Sonza delivered his lines, appeared on television, and sounded on radio were outside the television station’s control. Sonza had a free hand on what to say or discuss in his shows provided he did not attack the television station or its interests. Clearly, the television station did not exercise control over the means and methods of the performance of Sonza’s work.24 In the case at bar, ABC had control over the performance of petitioner’s work. Noteworthy too, is the comparatively low P28,000 monthly pay of petitioner25 vis the P300,000 a month salary of Sonza,26 that all the more bolsters the conclusion that petitioner was not in the same situation as Sonza.

The contract of employment of petitioner with ABC had the following stipulations:

x x x x

1. SCOPE OF SERVICES – TALENT agrees to devote his/her talent, time, attention and best efforts in the performance of his/her duties and responsibilities as Anchor/Program Host/Newscaster of the Program, in accordance with the direction of ABC and/or its authorized representatives.

1.1. DUTIES AND RESPONSIBILITIES – TALENT shall:

a. Render his/her services as a newscaster on the Program;

b. Be involved in news-gathering operations by conducting interviews on- and off-the-air;

c. Participate in live remote coverages when called upon;

d. Be available for any other news assignment, such as writing, research or camera work;

e. Attend production meetings;

f. On assigned days, be at the studios at least one (1) hour before the live telecasts;

g. Be present promptly at the studios and/or other place of assignment at the time designated by ABC;

h. Keep abreast of the news;

i. Give his/her full cooperation to ABC and its duly authorized representatives in the production and promotion of the Program; and

j. Perform such other functions as may be assigned to him/her from time to time.

x x x x

1.3 COMPLIANCE WITH STANDARDS, INSTRUCTIONS AND OTHER RULES AND REGULATIONS – TALENT agrees that he/she will promptly and faithfully comply with the requests and instructions, as well as the program standards, policies, rules and regulations of ABC, the KBP and the government or any of its agencies and instrumentalities.27

6

document.docx x x x

In Manila Water Company, Inc. v. Pena,28 we said that the elements to determine the existence of an employment relationship are: (a) the selection and engagement of the employee, (b) the payment of wages, (c) the power of dismissal, and (d) the employer’s power to control. The most important element is the employer’s control of the employee’s conduct, not only as to the result of the work to be done, but also as to the means and methods to accomplish it.29

The duties of petitioner as enumerated in her employment contract indicate that ABC had control over the work of petitioner. Aside from control, ABC also dictated the work assignments and payment of petitioner’s wages. ABC also had power to dismiss her. All these being present, clearly, there existed an employment relationship between petitioner and ABC.

Concerning regular employment, the law provides for two kinds of employees, namely: (1) those who are engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer; and (2) those who have rendered at least one year of service, whether continuous or broken, with respect to the activity in which they are employed.30 In other words, regular status arises from either the nature of work of the employee or the duration of his employment.31 In Benares v. Pancho,32 we very succinctly said:

…[T]he primary standard for determining regular employment is the reasonable connection between the particular activity performed by the employee vis-à-vis the usual trade or business of the employer. This connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. If the employee has been performing the job for at least a year, even if the performance is not continuous and merely intermittent, the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, the employment is considered regular, but only with respect to such activity and while such activity exists.33

In our view, the requisites for regularity of employment have been met in the instant case. Gleaned from the description of the scope of services aforementioned, petitioner’s work was necessary or desirable in the usual business or trade of the employer which includes, as a pre-condition for its enfranchisement, its participation in the government’s news and public information dissemination. In addition, her work was continuous for a period of four years. This repeated engagement under contract of hire is indicative of the necessity and desirability of the petitioner’s work in private respondent ABC’s business.34

The contention of the appellate court that the contract was characterized by a valid fixed-period employment is untenable. For such contract to be valid, it should be shown that the fixed period was knowingly and voluntarily agreed upon by the parties. There should have been no force, duress or improper pressure brought to bear upon the employee; neither should there be any other circumstance that vitiates the employee’s consent.35 It should satisfactorily appear that the employer and the employee dealt with each other on more or less equal terms with no moral dominance being exercised by the employer over the employee.36 Moreover, fixed-term employment will not be considered valid where, from the circumstances, it is apparent that periods have been imposed to preclude acquisition of tenurial security by the employee.37

In the case at bar, it does not appear that the employer and employee dealt with each other on equal terms. Understandably, the petitioner could not object to the terms of her employment contract because she did not want to lose the job that she loved and the workplace that she had grown accustomed to,38 which is exactly what happened when she finally manifested her intention to negotiate. Being one of the numerous newscasters/broadcasters of ABC and desiring to keep her job as a broadcasting practitioner, petitioner was left with no choice but to affix her signature of conformity on each renewal of her contract as already prepared by private respondents; otherwise, private respondents would have simply refused to renew her contract. Patently, the petitioner occupied a position of weakness vis-à-vis the employer. Moreover, private respondents’ practice of repeatedly extending petitioner’s 3-month contract for four years is a circumvention of the acquisition of regular status. Hence, there was no valid fixed-term employment between petitioner and private respondents.

While this Court has recognized the validity of fixed-term employment contracts in a number of cases, it has consistently emphasized that when the circumstances of a case show that the periods were imposed to block the acquisition of security of tenure, they should be struck down for being contrary to law, morals, good customs, public order or public policy.39

As a regular employee, petitioner is entitled to security of tenure and can be dismissed only for just cause and after due compliance with procedural due process. Since private respondents did not observe due process in constructively dismissing the petitioner, we hold that there was an illegal dismissal.

WHEREFORE, the challenged Decision dated January 30, 2004 and Resolution dated June 23, 2004 of the Court of Appeals in CA-G.R. SP No. 63125, which held that the petitioner was a fixed-term employee, are REVERSED and SET ASIDE. The NLRC decision is AFFIRMED.

Costs against private respondents.

SO ORDERED.

[G.R. No. 145443.  March 18, 2005]

RAQUEL P. CONSULTA, petitioner, vs. COURT OF APPEALS, PAMANA PHILIPPINES, INC., RAZUL Z. REQUESTO, and ALETA TOLENTINO, respondents.

D E C I S I O N

CARPIO, J.:

The Case

This is a petition for review[1] assailing the Decision of 28 April 2000 and Resolution of 9 October 2000 promulgated by the Court of Appeals (“appellate court”)[2] in CA-G.R. SP No. 50462.  The appellate court reversed the Resolution of the National Labor Relations Commission (“NLRC”) which in turn affirmed the Labor Arbiter’s Decision.

The Antecedent Facts

Pamana Philippines, Inc. (“Pamana”) is engaged in health care business.  Raquel P. Consulta (“Consulta”) was a Managing Associate of Pamana.  Consulta’s appointment dated 1 December 1987 states:

We are pleased to formally confirm your appointment and confer upon you the authority as MANAGING ASSOCIATE (MA) effective on December 1, 1987 up to January 2, 1988.  Your area of operation shall be within Metro Manila.

In this capacity, your principal responsibility is to organize, develop, manage, and maintain a sales division and a full complement of agencies and Health Consultants (HealthCons) and to submit such number of enrollments and revenue attainments as may be required of your position in accordance with pertinent Company policies and guidelines.  In pursuit of this objective, you are hereby tasked with the responsibilities of recruiting, training and directing your Supervising Associates (SAs) and the Health Consultants under their respective agencies, for the purpose of promoting our corporate Love Mission.

In the performance of such duties, you are expected to uphold and promote the Company’s interests and good image and to abide by its principles and established norms of conduct necessary and appropriate in the discharge of your functions.  The authority as MA likewise vests upon you command responsibility for the actions of your SAs and HealthCons; the Company therefore reserves the right to debit your account for any accountabilities/financial obligations arising therefrom.

By your acceptance of this appointment, it is understood that you must represent the Company on an exclusive basis, and must not engage directly or indirectly in activities, nor become affiliated in official or unofficial capacity with companies or organizations which compete or have the same business as Pamana.  It is further understood that his [sic] self-inhibition shall be effective for a period of one year from date of official termination with the Company arising from any cause whatsoever.

In consideration of your undertaking the assignment and the accompanying duties and responsibilities, you shall be entitled to compensation computed as follows:

7

document.docOn Initial Membership Fee               Entrance Fee                5%

                                                          Medical Fee                   6%

On Subsequent Membership Fee                                          6%

You are likewise entitled to participate in sales contests and such other incentives that may be implemented by the Company.

This appointment is on a non-employer-employee relationship basis, and shall be in accordance with the Company Guidelines on Appointment, Reclassification and Transfer of Sales Associates.[3]

Sometime in 1987, Consulta negotiated with the Federation of Filipino Civilian Employees Association (“FFCEA”) working at the United States Subic Naval Base for a Health Care Plan for the FFCEA members.   Pamana issued Consulta a Certification[4] dated 23 November 1987, as follows:

This certifies that the Emerald Group under Ms. Raquel P. Consulta, as Managing Consultant, is duly authorized to negotiate for and in behalf of PAMANA with the Federation of Filipino Civilian Employees Association covering all U.S. facilities in the Philippines, the coverage of FFCEA members under the Pamana Golden Care Health Plans.

Upon such negotiation and eventual execution of the contract agreements, entitlements of all benefits due the Emerald Group in it’s [sic] entirely including it’s [sic] Supervising Consultants and Health Consultants, by of commissions, over-rides and other package of benefits is hereby affirmed, obligated and confirmed as long as the contracts negotiated and executed are in full force and effect, including any and all renewals made.  And provided further that the herein authorized consultants remain in active status with the Pamana Golden Care sales group.[5]

On 4 March 1988, Pamana and the U.S. Naval Supply Depot signed the FFCEA account.  Consulta, claiming that Pamana did not pay her commission for the FFCEA account, filed a complaint for unpaid wages or commission against Pamana, its President Razul Z. Requesto (“Requesto”), and its Executive Vice-President Aleta Tolentino (“Tolentino”).

The Rulings of the Labor Arbiter and the NLRC

In a Decision promulgated on 23 June 1993, Labor Arbiter Alex Arcadio Lopez ruled, as follows:

ACCORDINGLY, respondent is hereby ordered to pay complainant her unpaid commission to be computed as against actual transactions between respondent PAMANA and the contracting Department of U.S. Naval Supply Depot upon presentation of pertinent document.

Respondent is further ordered to pay ten (10%) percent attorney’s fees.

SO ORDERED.[6]

Pamana, Requesto and Tolentino (“Pamana et al.”) appealed the Decision of the Labor Arbiter.

In a Resolution[7] promulgated on 22 July 1994, the NLRC dismissed the appeal and affirmed the Decision of the Labor Arbiter.   In its Order promulgated on 3 October 1994, the NLRC denied the motion for reconsideration of Pamana et al.

Pamana et al. filed a petition for certiorari before this Court.  In compliance with this Court’s resolution dated 6 February 1995, the Office of the Solicitor General submitted a Manifestation in Lieu of Comment praying to grant the petition on the ground that Consulta was not an employee of Pamana.  On 23 November 1998, this Court referred the case to the appellate court pursuant to St. Martin Funeral Home v. NLRC.[8]

The Decision of the Appellate Court

In its Decision promulgated on 28 April 2000, the appellate court reversed the NLRC Decision.  The appellate court ruled that Consulta was a commission agent, not an employee of Pamana.  The appellate court also ruled that Consulta should have litigated her claim for unpaid commission in an ordinary civil action.

Hence, Consulta’s recourse to this Court.

The Issues

The issues are:

1. Whether Consulta was an employee of Pamana.

2. Whether the Labor Arbiter had jurisdiction over Consulta’s claim for unpaid commission.

The Ruling of the Court

We affirm the Decision of the appellate court.  Consulta was an independent agent and not an employee of Pamana.

The Four-Fold Test

In Viaña v. Al-Lagadan,[9] the Court first laid down the four-fold test to determine the existence of an employer-employee relationship.  The four elements of an employer-employee relationship, which have since been adopted in subsequent jurisprudence, [10] are (1) the power to hire; (2) the payment of wages; (3) the power to dismiss; and (4) the power to control.   The power to control is the most important of the four elements.

In Insular Life Assurance Co., Ltd. v. NLRC,[11] the Court explained the scope of the power to control, thus:

x x x  It should, however, be obvious that not every form of control that the hiring party reserves to himself over the conduct of the party hired in relation to the services rendered may be accorded the effect of establishing an employer-employee relationship between them in the legal or technical sense of the term. A line must be drawn somewhere, if the recognized distinction between an employee and an individual contractor is not to vanish altogether.  Realistically, it would be a rare contract of service that gives untrammelled freedom to the party hired and eschews any intervention whatsoever in his performance of the engagement.

Logically, the line should be drawn between rules that merely serve as guidelines towards the achievement of the mutually desired result without dictating the means or methods to be employed in attaining it, and those that control or fix the methodology and bind or restrict the party hired to the use of such means.  The first, which aim only to promote the result, create no employer-employee relationship unlike the second, which address both the result and the means used to achieve it.

In the present case, the power to control is missing.  Pamana tasked Consulta to organize, develop, manage, and maintain a sales division, submit a number of enrollments and revenue attainments in accordance with company policies and guidelines, and to recruit, train and direct her Supervising Associates and Health Consultants.[12]  However, the manner in which Consulta was to pursue these activities was not subject to the control of Pamana.  Consulta failed to show that she had to report for work at definite hours.  The amount of time she devoted to soliciting clients was left entirely to her discretion.  The means and methods of recruiting and training her sales associates, as well as the development, management and maintenance of her sales division, were left to her sound judgment.

8

document.docConsulta claims that the documents she submitted show that Pamana had control on the conduct of her work and the means and

methods to accomplish the work.  However, the documents only prove the absence of the power to control.   The Minutes of the meeting on 31 May 1988 of the Managing Associates with Fely Whitfield, Vice-President for Sales of Pamana, reflect the following:

At this point Mrs. Whitfield gave some pointers on recruitment and selling techniques and reminded the group that the success of an agency is still people.  The more recruits you have the better is your chance to achieve your quota.

She also announced June be made a recruitment month, and told the MAs to remind their associates that if you cannot sell to a prospect then recruit him or her.

She also discussed extensively the survey method of selling and recruitment and that the sales associates should be more aggressive in their day to day sales activity.  She reminded the MAs to fill up their recruitment requirements to be able to participate in the monthly and quarterly contest.

x x x

4.       Recruitment Campaign

In connection with the Recruitment Campaign for June, Mr. R. Canon[13] requested for Management support.  He suggested that a recruitment Advertisement be placed in a leading Metropolitan daily Newspaper.  The cost of which was unanimously suggested by MAs that Management should share at least 50%.

5.  MAs agreed to pay in advance their share for the salary of the MAs Secretary.[14] (Emphasis supplied)

The Minutes of the 7 June 1988 meeting reflect the following:

III. PRODUCTION & RECRUITMENT INCENTIVES

To help the MAs in their recruitment drive Mrs. Whitfield suggested some incentives to be undertaken by the MAs like (1) cash incentives for associates that bring in a recruit, (2) cash incentives based on production brought in by these new recruits.

She said that MAs, as businessm[e]n should invest time, effort & money to their work, because it will redown [sic] to their own good anyway, that the success of their agency should not depend solely on what management could give as incentives but also on incentives of MAs within their agencies.  It should be a concerted effort.

After a thorough discussion on the pros & cons of the suggestions it was agreed that a P10.00 per recruit be given to the associate that will recruit and an additional cash prize based on production of these new recruits.[15]

Clearly, the Managing Associates only received suggestions from Pamana on how to go about their recruitment and sales activities.   They could adopt the suggestions but the suggestions were not binding on them.   They could adopt other methods that they deemed more effective.

Further, the Managing Associates had to ask the Management of Pamana to shoulder half of the advertisement cost for their recruitment campaign.  They shelled out their own resources to bolster their recruitment.   They shared in the payment of the salaries of their secretaries.  They gave cash incentives to their sales associates from their own pocket.  These circumstances show that the Managing Associates were independent contractors, not employees, of Pamana.

Finally, Pamana paid Consulta not for labor she performed but only for the results of her labor. [16]  Without results, Consulta’s labor was her own burden and loss.  Her right to compensation, or to commission, depended on the tangible results of her work [17] - whether she brought in paying recruits. Consulta’s appointment paper provides:

In consideration of your undertaking the assignment and the accompanying duties and responsibilities, you shall be entitled to compensation computed as follows:

On Initial Membership Fee       Entrance Fee            5%

                                                  Medical Fee   6%

On Subsequent Membership Fee                              6%

You are likewise entitled to participation in sales contests and such other incentives that may be implemented by the Company.[18]

The Guidelines on Appointment of Associates show that a Managing Associate received the following commissions and bonuses:

3. Compensation Package of Regular MAs

Regular MAs shall be entitled to the following compensation and benefits:

3.1 Compensation

a) Personal Production

Individual/Family          Institutional Acct.

commission                          30%                             30%

bonus                                    40%                             -

b) Group Production

overriding commission         6%                               6%

bonus                                    5%                               -

3.2 Benefits

Participation in all sales contests corresponding to the MA position plus any such other benefits as may be provided for the MA on regular status.[19]

Aside from commissions, bonuses and other benefits that depended solely on actual sales, Pamana did not pay Consulta any compensation for managing her sales division, or for recruiting and training her sales consultants. As a Managing Associate, she was only entitled to commissions, bonuses and other benefits, which depended solely on her sales and on the sales of her group.

The Exclusivity Provision

Consulta’s appointment had an exclusivity provision.  The appointment provided that Consulta must represent Pamana on an exclusive basis. She must not engage directly or indirectly in activities of other companies that compete with the business of Pamana.   However, the fact that the appointment required Consulta to solicit business exclusively for Pamana did not mean that Pamana exercised control over the means and methods of Consulta’s work as the term control is understood in labor jurisprudence. [20] Neither did it make Consulta an employee of Pamana.  Pamana did not prohibit Consulta from engaging in any other business, or from being connected with any other company, for as long as the business or company did not compete with Pamana’s business.

The prohibition applied for one year after the termination of the contract with Pamana.  In one of their meetings, one of the Managing Associates reported that he was transferring his sales force and account from another company to Pamana. [21] The exclusivity provision was a reasonable restriction designed to prevent similar acts prejudicial to Pamana’s business interest.  Article 1306 of the Civil Code provides

9

document.docthat “[t]he contracting parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.”

Jurisdiction over Claim for Unpaid Commission

There being no employer-employee relationship between Pamana and Consulta, the Labor Arbiter and the NLRC had no jurisdiction to entertain and rule on Consulta’s money claim.

Article 217 of the Labor Code provides:

ART. 217.  Jurisdiction of Labor Arbiters and the Commission. - (a)  Except as otherwise provided under this Code the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural:

1. Unfair labor practice cases;

2. Termination disputes;

3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment;

4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations;

5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and

6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims, arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement.

(b)  The Commission shall have exclusive appellate jurisdiction   over all cases decided by Labor Arbiters.

(c)  Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements.

Consulta filed her action under Article 217(a)(6) of the Labor Code.  However, since there was no employer-employee relationship between Pamana and Consulta, the Labor Arbiter should have dismissed Consulta’s claim for unpaid commission.  Consulta’s remedy is to file an ordinary civil action to litigate her claim.

WHEREFORE, the petition is DISMISSED and the Decision of the Court of Appeals in CA-G.R. SP No. 50462 is AFFIRMED in toto.

SO ORDERED.

[G.R. No. 116835.  March 5, 1998]

ANTONIETTA GARCIA VDA. DE CHUA, petitioner, vs. COURT OF APPEALS,  (Special Eight Division),  HON. JAPAL M. GUIANI, RTC, Branch 14, 12th Judicial Region, Cotabato City, and FLORITA A. VALLEJO, As Administratrix of the Estate of the late Roberto L. Chua. respondents.

D E C I S I O N 

KAPUNAN,  J.:

Assailed  before  us in this Appeal  by Certiorari under Rule 45 of the Rules of Court  is  the decision of  the  Court of Appeals in CA-GR Sp. No. 33101, promulgated on 19 April 1994  affirming  the  decision of the Regional Trial Court, Branch 14, of Cotabato City in Special Procedure Case No. 331. 

As culled from the records the following facts have been preponderantly established:

During his lifetime, Roberto Lim Chua lived out of wedlock with private respondent Florita A. Vallejo from 1970 up to 1981.   Out  of  this union the couple begot two illegitimate children, namely Roberto Rafson Alonzo and Rudyard Pride Alonzo.

On 28 May 1992, Roberto Chua died intestate in Davao City. 

On 2 July 1992, private respondent  filed  with  the  Regional  Trial Court of Cotabato City a Petition[1] which  is reproduced hereunder:

IN RE:  PETITION FOR DECLARATION OF HEIRSHIP, GUARDIANSHIP OVER THE PERSONS AND PROPERTIES OF MINORS ROBERT RAFSON ALONZO SP. PROC. NO/ 331 and RUDYARD PRIDE ALONZO, all surnamed CHUA and ISSUANCE OF LETTERS OF ADMINISTRATION. FLORITA ALONZO VALLEJO,              Petitioner.

x - - - - - - - - - - - - - - - - - - - - - - - - - - x

P E T I T I O N

COMES NOW the petitioner assisted by counsel and unto this Honorable Court most respectfully states:

1.  That she is of legal age, Filipino, married  but separated from her husband and residing at Quezon Avenue, Cotobato City, Philippines;

2.  That sometime from 1970 up to and until late 1981 your petitioner lived with Roberto Lim Chua as husband and wife and out of said union they begot two (2) children, namely, Robert Rafson Alonzo Chua who was born in General Santos City on April 28, 1977 and Rudyard Pride Alonzo Chua who was born  in Davao  City  on   August 30, 1978.     A  xerox  copy of the birth certificate  of  each child is hereto  attached  as annex ‘A’ and ‘B’, respectively.

3.  That the aforementioned children  who  are  still minors today are both staying with herein  petitioner  at  her  address  at Quezon Avenue, Cotabato City;

4.  That  Roberto  Lim Chua,  father of the  above-mentioned minors, died intestate on May 28,  1992 in Davao City.

5.  That the aforementioned deceased left properties both real and personal  worth  P5,000,000.00  consisting of the following:

a)  Lot in Kakar, Cotabato City covered by TCT No. T-12835      with    an     area   of   290   sq. m.              estimated at ………………………………………………………..   P50,000.00

b)  Lot  in  Kakar,  Cotabato  City  covered by TCT No. T-12834 with     an      area    of      323   sq.m. .... ……………………………………………………………..  50,000.00

c)  Lot  in Davao City covered by TCT  No. T-126583 with  an  area  of   303 sq.m. …..……………………………………………………..........50,000.00

d)  Lot   in Davao City covered by TCT No. T-126584 with an area of  303  sq.m. ..…………………………………………………….............50,000.00

e)  Residential  house in Cotabato City valued at                     …………………............................................................300,000.00

10

document.docf)  Residential    house   in    Davao   City        valued     at ………..........................................................………..600,000.00

g)  Car, Colt Lancer with Motor No. 4G33-3 AF6393 ................................................………………………….210,000.00

h)  Colt, Galant Super Saloon with Motor No. 4G37-GB0165

..………………………………........................................545,000.00

I)  Car, Colt Galant with Motor No. 4G52-52D75248 ..........................................……………………………...110,000.00

j)  Reo Isuzu Dump Truck  with Motor No. DA640-838635

…………………………………………………………..  ..350,000.00

k)  Hino Dump Truck with Motor No. ED100-T47148 …...........................................…………………………...350,000.00

l)  Stockholdings in various corporations  with   par  value estimated at ........................………………………………………….3,335,000.00

T o t a l - - - - - - - - - - - - - - - - - - - - - - - -  P5,000,000.00

6.  That  deceased  Roberto  Lim Chua  died single and without legitimate descendants or  ascendants,  hence,  the above  named minors Robert Rafson Alonzo Chua and  Rudyard Pride  Alonzo Chua,  his children   with  herein  petitioner shall succeed to the entire estate of the deceased.  (Article 988 of the Civil Code of the Philippines).

7.  That the names, ages and residences of the relatives of said minors are the following, to wit:

      Names                       Relationship               Ages                 Residences

1.  Carlos Chua      Uncle                 60                 Quezon Avenue,

                                                                  Cotabato City

2.  Aida Chua            Auntie               55                 RosaryHeights,

                                                                     Cotabato City

3.  Romulo Uy          Uncle                 40       c/o Overseas Fish-   

                                                                   ing Exporation Co.

                                                                   Inc., Matina,

                                                                   Davao City

6.  That  considering the fact that the aforementioned minors by operation of law are to succeed to the entire estate of Roberto Lim Chua under the  provisions  of Article  988  of   the  New  Civil  Code of  the  Philippines,  it   is necessary that for the protection of the rights and interest of Robert Rafson Alonzo Chua and Rudyard Pride Alonzo Chua, both minors and heirs of deceased Roberto Lim Chua, a guardian over the persons and properties of said minors be appointed by this Honorable Court.

7.  That  herein petitioner  being  the  mother and natural guardian of said minors  is also competent and willing to act  as the guardian of minors Robert Rafson Alonzo  Chua  and  Rudyard  Pride  Alonzo Chua both staying and living with her; that petitioner possesses  all the qualifications and none of the disqualifications of a guardian.

WHREFORE, premises considered, it is most respectfully prayed:

1.  That,  upon  proper  notice and hearing,   an order be issued declaring  minors  ROBERTO  RAFSON  ALONZO CHUA and RUDYARD PRIDE  ALONZO  CHUA  as  heirs to the intestate estate of deceased ROBERTO LIM CHUA;

2.  That Letters of Administration be issued to herein petitioner for the administration of the estate of the deceased ROBERTO LIM CHUA;

3.  That the petitioner  be also  appointed the guardian of the persons and estate of minors ROBERT RAFSON  ALONZO CHUA and RUDYARD PRIDE ALONZO CHUA;

4.  That after all the property of deceased  Roberto  Lim  Chua have been inventoried and expenses and just debts, have been paid, the intestate estate of Roberto Lim Chua be distributed to  its rightful  heirs,  the  minors  in this case, pursuant to the provisions of   Article 988 of the New Civil Code  of   the Philippines.

5.  And for such other reliefs and remedies this Honorable Court may consider fit and proper in the premises.

Cotabato City, Philippines, June 29, 1992.

(Sgd.) FLORITA ALONZO VALLEJO

(Petitioner)

The trial court issued an order setting the hearing of the petition on 14 August 1992 and directed that notice thereof be published in a newspaper of general circulation in the province of Maguindanao and Cotabato City and or Davao City. 

On 21 July 1992, herein petitioner Antoinetta Garcia Vda. de Chua, representing to be the surviving spouse of Roberto Chua,   filed a Motion to Dismiss[2] on  the  ground of improper venue.  Petitioner alleged that at the time of the decedent's death  Davao City  was his residence, hence,  the Regional Trial Court of Davao City is the proper forum.

Private  respondent  filed an opposition to the Motion to Dismiss[3] dated July 20, 1992  based on the following grounds:

(1) That this petition is for the guardianship of the minor children of the petitioner who are heirs to the estate of the late Roberto L. Chua and under Section 1, Rule 92 of the Rules of Court the venue shall be at the place where the minor resides;

(2)  That  the above-named  minors are residents of Cotabato City:

(3) That the movant in this case has no personality to intervene nor to oppose in the granting of this petition for the reason that she is a total stranger to the minors Robert Rafson Alonzo and Rudyard Pride Alonzo, all surnamed Chua.

(4) That  deceased  Roberto L. Chua  died a bachelor.   He is the father of  the above-named  minors  with  the  petitioner in this case;

(5)  That movant/oppositor Antoinetta Chua is not the surviving spouse of the late Roberto L. Chua but  a  pretender to the estate of the latter since the deceased never contracted marriage with any woman until he died.

On  6  August 1992, private respondent Vallejo filed a Motion for Admission of an Amended Petition[4] "in order that the designation of the case title can properly and appropriately capture or capsulize in clear terms the material averments in the body of  the  pleadings;  thus avoiding any confusion  or misconception of  the  nature and real  intent and purpose  of this petition". The amended petition[5] contains  identical  material  allegations  but  differed in its title, thus:

11

document.docIN RE:   PETITION  FOR  THE SETTLEMENT OF THE INTESTATE ESTATE  OF  ROBERTO  CHUA,  DECLARATION OF HEIRSHIP, GUARDIANSHIP OVER THE PERSONS AND PROPERTIES OF MINORS ROBERT AND RUDYARD, all surnamed CHUA and ISSUANCE OF LETTERS OF ADMINISTRATION.

FLORITA ALONZO VALLEJO,

Petitioner.

Paragraph 4 of the original petition was also amended to read as follows:

4.  That  Roberto  Lim Chua, father of the abovementioned minors is a resident of Cotabato City  and died intestate on May 28, 1992 at Davao City.

The petition contains exactly the same prayers as those in the original petitions. 

Petitioner opposed the motion to amend petition alleging that at the hearing  of  said motion  on  24  July 1992, private respondent’s counsel allegedly admitted that the sole intention of the original petition was to secure guardianship over the persons an property of the minors. [6]

On 21, August 1992,  the trial  court issued an order[7] denying the motion to dismiss for lack of merit.  The court ruled that Antoinetta Garcia had no personality to file the motion to  dismiss  not  having  proven  her  status as wife of the decedent. Further, the court found that the actual residence of the deceased was Cotabato City, and  even assuming that there was concurrent venue among the Regional Trial Courts  where the decedent had resided, the R.T.C. of Cotabato had already taken cognizance of the settlement of the decedent's estate to the exclusion of all others.  The pertinent portions of the order read:

At  the  hearing of the motion to dismiss on August 19, 1992, counsel for movant Antonietta G. Chua presented 18 Exhibits in  support  of her allegation that she was the lawful wife of the decedent and that the latter resides in Davao City at the time of his death.   Exh. ‘1’ was the xerox copy of the alleged marriage contract between the movant and the petitioner.   This cannot be admitted in evidence on the ground of the timely objection of the counsels  for petitioner that the best evidence is the original copy or authenticated  copy  which  the  movant  cannot produce.     Further, the counsels for petitioner in opposition  presented  the  following:   a  certification from the Local Civil Registrar concerned that no such marriage contract was ever registered with them; a letter from Judge Augusto Banzali,   the   alleged  person  to   have   solemnized  the  alleged marriage that he has not solemnized such alleged marriage.   Exhibit ‘2’  through ‘18’ consist among others of Transfer Certificate  of  Title  issued in the name of Roberto L. Chua married to Antonietta Garcia, and a resident of Davao City; Residence Certificates  from  1988  and  1989 issued at Davao City  indicating  that he was married and was born in Cotabato City; Income Tax Returns for 1990 and 1991 filed in Davao City where the status  of  the  decedent was stated as married; passport of the decedent  specifying  that he  was  married  and his residence was Davao City.   Petitioner through counsels, objected  to  the admission  in  evidence  of Exhibits ‘2’ through ‘18’   if  the  purpose is to establish the truth of the alleged marriage between the decedent and Antonietta Garcia.   The best evidence they said is the marriage contract.   They do not object to the admission of said exhibit if the purpose is to show that Davao City was the business residence of the decedent.

Petitioner  through  counsels,  presented  Exhibit  ‘A’ through ‘K’ to support her allegation that the decedent was a resident  of  Cotabato  City;  that  he  died a bachelor; that he begot two illegitimate children with the petitioner as mother.   Among these exhibits are Income Tax Returns filed in Cotabato City from  1968  through 1979 indicating therein that he was single; birth certificates  of  the  alleged  two  illegitimate  children of the decedent; Resident Certificates of the decedent issued in Cotabato City;  Registration  Certificate of  Vehicle  of the decedent showing that his residence is Cotabato City.

It is clear from the foregoing that the movant failed to establish the truth of her allegation that she was  the  lawful  wife of the decedent.   The  best  evidence  is  a  valid marriage contract  which the movant failed to produce.   Transfer Certificates  of Title,  Residence  Certificates,  passports  and  other  similar documents cannot prove marriage especially so when the petitioner has submitted a certification from the Local Civil Registrar concerned that the alleged marriage was not registered and a  letter  from the judge alleged to have solemnized the marriage that  he  has  not solemnized said alleged marriage.   Consequently,  she has no personality to file the subject motion to dismiss.

On the  issue  of the residence of the decedent at the time of his death,  the  decedent as  a  businessman  has  many  business  residences from different parts of  the country  where   he  usually  stays  to supervise  and  pursue his business ventures.   Davao City is one of them.   It cannot be denied that Cotabato  City  is his actual residence where his alleged illegitimate children also reside.

The place of residence of the deceased in settlement of estates, probate of will, and issuance of letters of administration does not constitute an element of jurisdiction over the subject matter.   It is merely constitutive of venue (Fule vs. CA, L-40502, November 29, 1976).   Even assuming that there is concurrent venue among the Regional Trial Courts of the places where the decedent has residences, the Regional Trial Court first taking cognizance of the settlement of the estate of the decedent, shall exercise jurisdiction to the exclusion of all other courts (Section 1, Rule 73).   It was this Court which first took cognizance of the case when the petition was filed on July 2, 1992, docketed as Special Proceeding No. 331 and an order of publication issued by this Court on July 13, 1992.

WHEREFORE, in view of the foregoing, the motion to dismiss is hereby denied for lack of merit.

On 31 August 1992, upon motion of  private respondent,  the trial court issued an order appointing Romulo Lim Uy, a first cousin of the deceased, as special administrator of the decedent's estate.[8]

On the same day,  the trial court likewise issued an Order appointing Florita Vallejo as the guardian over the persons and properties of the two minor children.[9]

Thereafter, petitioner  filed a Motion dated 25 October 1993[10] praying that the letters of administration  issued to  Vallejo be recalled and that new letters of administration be issued in her .  She, likewise, filed a Motion dated 5 Novembeer 1993[11] to declare the proceedings a mistrial.  Both motions were denied by the trial court in its Order dated 22 November 1993 [12]  Petitioner’s motion  for  reconsideration of  the  order  was denied by the trial court in an order dated 13 December 1993[13]

Assailling the last two orders of the trial court,   petitioner  filed a petition for certiorari and prohibition (Rule 65) with the respondent Court of Appeals, docketed as CA G.R. No. Sp. 33101, alleging  that  the trial court acted with grave abuse of discretion in:

(1)  unilaterally and summarily converting, if not treating,   the  guardianship proceedings into an intestate proceeding;

(2) summarily hearing the intestate proceedings without jurisdiction  and  without  any notice to herein petitioner whatsoever; and

(3)  issuing the questioned order (sic) on the alleged pretension that herein petitioner  has  no  personality  to intervene in SPL Proc. No. 331 questioning the highly anomalous orders precipitately issued ex-parte by the public respondent R.T.C. without notice to the petitioners.

Petitioner  in the main argued  that  private respondent  herself  admitted in in her opposition to petitioner’s motion to dismiss filed in the trial court and in open court  that  the original  petition she filed is one for guardianship;  hence, the  trial court acted beyond its jurisdiction when it issued letters of administration  over  the  estate of Robert C. Chua, thereby converting the petition into an intestate proceeding, without the amended petition being published in a newspaper  of  general circulation  as  required by  Section 3, Rule 79.

The Court of Appeals in its decision promulgated on 19 April 1994 [14] denied the petition ratiocinating that the original petition filed was one for guardianship of the illegitimate children of the deceased as well as for administration of his intestate estate.    While private respondent may have alleged  in her opposition to the motion to dismiss that petition was for guardianship, the fact remains that the very allegations of the original petition unmistakably  show  a twin  purpose:  (1) guardianship; and (2) issuance of letters of administration.  As such, it was unnecessary for her to republish the notice of hearing through a newspaper  of  general circulation in the province. The amended petition was filed for the only  reason stated in the motion for leave: so that the the "case title can properly and appropriately capture or capsulize in clear terms the material averments  in the body of the pleadings; thus avoiding any confusion  or misconception of  the  nature  and  real intent and purpose of this petition",  which  was  for  guardianship  over the persons and properties of her minor children and for the settlement of the intestate estate of  the  decedent who  was  their  father.    In other words,  there being no change in  the  material  allegations  between  the original and amended petitions,  the  publication of the first in a newspaper of general circulation sufficed for purposes of compliance with the legal requirements of notice.

Moreover,   the  appellate  court ruled that the petitioner's remedy is appeal  from  the orders complained  of  under Section 1(f), Rule 109 of the Rules of Court, not certiorari and prohibition.

Not  satisfied  with  the  decision  of  the Court of Appeals, petitioner comes to  this  Court  contending  that the appellate court committed the following errors:

I

THE PUBLIC RESPONDENT COURT OF APPEALS GRAVELY AND SERIOUSLY ERRED IN HOLDING THAT THE ORIGINAL PETITION (Annex F, Petition)  WAS  FOR  A TWIN PURPOSE, TO WIT:   FOR  GUARDIANSHIP  AND  FOR INTESTATE ESTATE PROCEEDINGS;

II

12

document.docTHE  PUBLIC  RESPONDENT COURT OF APPEALS SERIOUSLY ERRED IN HOLDING  THAT THERE IS NO NEED

TO  PUBLISH  THE AMENDED PETITION FOR ADMINISTRATION OF THE INTESTATE ESTATE THEREBY CONTRAVENING  THE  RULES  OF COURT  AND  THE RULINGS OF THE SUPREME COURT

III

THE  PUBLIC  RESPONDENT COURT OF APPEALS SERIOUSLY  ERRED  IN NOT NULLIFYING THE ORDERS (Annex “P” to “T”)  PRECIPITATELY ISSUED  EX-PARTE  BY  THE  PUBLIC  RESPONDENT  REGIONAL  TRIAL COURT IN THE  INTESTATE  PROCEEDINGS  WITHOUT PRIOR  HEARING OR NOTICE TO HEREIN PETITIONER THEREBY DEPRIVING THE LATTER (ANTOINETTA GARCIA VDA. DE CHUA ) OF  DUE PROCESS AND OPPORTUNITY TO BE HEARD.

IV

THE PUBLIC RESPONDENT COURT OF APPEALS GRAVELY ERRED IN SWEEPINGLY HOLDING THAT PETITIONER'S REMEDY IS APPEAL.[15]

In support of her first assignment of errors,  petitioner submits that the Court  of  Appeals’  conclusion  that  the original petition was one for guardianship and administration of the intestate estate is contradicted by the evidence on hand, asserting that the original   petition failed to allege and state the jurisdictional facts required by the Rules of Court in petitions for administration of a decedent's estate, such as:  (a) the last actual residence of the decedent at the time of his death; (b) names, ages and residences of the heirs; and (c) the names and residences of the creditors of the decedent.  Petitioner also reiterates her argument regarding private respondent’s alleged admission  that the original petition was one for guardianship and not for issuance of  letters of  administration,   pointing  to the Opposition to the Motion to Dismiss dated 20 July 1992, where the the private respondent alleged:

1. That  this  petition  is for guardianship of the minor children of the petitioner who are heirs to the estate of the late Roberto L. Chua and under Section 1, Rule 92 of the Rules of Court the venue shall be at the place where the minor resides.[16]

As  well  as to  the  statements made by counsel for the private respondent during the 24 July 1992 hearing on the motion to dismiss:

ATTY. RENDON:

We  filed   our  opposition to the motion to dismiss the petition because this is a     petition     for guardianship of minors, not for intestate proceedings.  So this is a case where the mother wanted  to be appointed as guardian because she is also the litigant here.    Because whenever there is an intestate proceedings,   she has to represent the minors, and under the Rules of Court  in any guardianship proceedings, the venue is at the place where the minor is actually residing.[17]

The petition is devoid of merit.

The title alone of the original  petition clearly shows that the petition is one which includes the issuance of letters of administration.    The  title of said petition reads:

IN RE: PETITION FOR DECLARATION OF HEIRSHIP, GUARDIANSHIP OVER THE PERSON AND PROPERTIES OF MINORS  ROBERTO ALONZO AND RUDYARD ALONZO, all surnamed CHUA and ISSUANCE OF LETTERS OF ADMINISTRATION. [18]

Likewise, the prayer of the petition states:

2.  That  Letters  of Administration be issued to herein petition for the administration of the estate of the deceased ROBERTO LIM CHUA.

The original petition also contains the jurisdictional facts required in  a petition for the issuance of letters of administration.  Section 2, Rule 79 of the Rules of Court reads:

Sec. 2.    Contents  of petition  for  letters of administration - A petition  for  letters of administration must be filed by an interested person and must show, so far as known to the petitioner:

(a) jurisdictional facts;

(b) The names, ages, and residences of the heirs and the names and residences of the creditors, of the decedent

(c) The probative value and character of the property of the estate;

(d)  The  name  of  the  person for whom letters of administration are prayed;

But no defect in the petition shall render void the issuance of letters of administration.   (underscoring ours).

The jurisdictional facts required in a petition for issuance of letters of administration are: (1) the death of the testator; (2)  residence at the time of death in the province where the probate court is located; and  (3)  if the  decedent was a non-resident, the fact of being a resident of a foreign country and that the decedent has left an estate in the province where the court is sitting.[19]

While paragraph 4 of the original petition stating:

(4)  That  Roberto  Lim Chua, father of the above mentioned minors,  died intestate on May 28, 1992 in Davao City.

failed to indicate the residence of the deceased at the time of his death, the omission was cured  by  the  amended petitions wherein the same paragraph now reads:

(4)  That  Roberto  Lim Chua,  father  of  the abovementioned minors  is     a resident of Cotabato City   and died  intestate on May 28, 1992 at Davao City. [20] (Underscoring in the original.)

 All told the original petition alleged substantially all the facts required to be  stated  in the petition for letters of administration.  Consequently, there was no need to publish the amended petition as  petitioner  would  insist in her second assignment of errors.

Be that as it may, petitioner has no legal standing to file the motion to dismiss   as she is not related to the deceased,  nor  does she have any interest in his estate as creditor or otherwise.   The  Rules  are  explicit on who may do so:  

Sec. 4.  Opposition to petition for administration - Any interested person, may by filing a written opposition, contest the petition on .the ground of incompetency of the person for whom letters of  administration  are prayed therein,  or on the ground of the contestant's  own right to  the  administration,  and  may   pray   that letters issue to himself,   or to any competent person or persons named in the opposition.

Only  an interested  person  may oppose the petition for issuance of  letters of administration.    An interested person is one who would be benefited by the estate such as an heir,  or one who has a claim against the estate, such as a creditor;  his interest  is  material  and direct, and not one that is only indirect or contingent.[21]

Petitioner was not able to prove her status as the surviving wife of the decedent.     The best  proof of  marriage  between  man and  wife is  a  marriage contract which Antoinetta Chua failed to produce.  The lower court correctly disregarded the  photostat  copy  of the marriage certificate which she presented, this being a violation of the best evidence rule, together with other worthless pieces of  evidence.    The trial court correctly ruled in its 21 August 1992 Order that:

xxx Transfer Certificates of Title, Residence Certificates, passports and other similar documents cannot prove marriage especially  so  when  the petitioner has submitted a certification from the Local Civil Registrar  concerned  that  the  alleged marriage was  not  registered  and  a letter from the judge alleged to  have  solemnized  the  marriage  that he has not solemnized said alleged marriage. xxx[22]

Under her third assignment of error, petitioner claims that the trial court issued its orders, Annexes “P” to “T”     without  prior hearing or notice to her, thus, depriving her of due process.

The orders referred to by petitioner are:  Order dated 31 August 1992 appointing   Romulo Lim Uy, first cousin of the deceased, as special administrator of the estate; Order dated 31 August 1992 appointing private respondent   as guardian over the person and property of the minors; Order dated 5 August 1993, directing  the  transfer  of the remains of the deceased from Davao City to Cotabato City; Order dated 6 September 1993 directing petitioner to turn over a Mitsubishi Gallant car owned by the estate of the deceased to the special

13

document.docadministrator;  and Order dated 28 September 1993, authorizing the sheriff to break open the deceased’s house for the purpose of conducting an inventory of the properties found therein, after the sheriff was refused entry to the house by the driver and maid of petitioner.

Apart from the fact that petitioner was not entitled to notice of the proceedings of the trial court, not being able to establish proof of her alleged marriage to the decease,  or  of  her interest in the estate as creditor or otherwise,  petitioner categorically stated in the instant petition that on 25 October 1993 she filed a motion praying for the recall of the letters of administration   issued  by  the  trial court  and  another  motion dated 5 August 1993  praying  that  the  proceedings conducted by the trial court be declared as a mistrial and the court orders relative thereto be set aside and nullified.  Petitioner further stated that her motions were denied by the trial court in its Order dated 22 November 21, 1993  and  that  on  30 November 1993 she filed a motion for reconsideration of the order of denial which in turn was denied by the trial court on 13 December 1993.

Due  process  was  designed  to afford  opportunity to be heard, not that an  actual  hearing  should  always and indispensably be held.[23] The  essence of due process is simply an opportunity to be heard. [24] Here,  even  granting that the petitioner was not notified of the orders of the trial court marked as Exhibits “P” to “T,” inclusive,  nonetheless,  she  was  duly heard in her motions to  recall  letters  of  administration  and to declare the proceedings of the court as a “mistrial,” which motions were denied in the Order dated 22 November 1933.[25] A motion for the reconsideration of this order of denial was also duly heard by the trial court but was denied in its Order of 13 December 1993.[26]

Denial of due process cannot  be  successfully  invoked by a party who has had the opportunity to be heard on his motion for reconsideration.[27]

As to the last assignment of errors, we agree with the Court of Appeals that the proper remedy of  the petitioner in said court was  an ordinary appeal and not a special civil action for  certiorari;  which  can  be availed of if a party has  no plain, speedy and adequate remedy in the ordinary course of law.  Except for her bare allegation that an ordinary appeal would be inadequate, nothing on record would indicate that extraordinary remedy of certiorari or prohibition is warranted.

Finally,  petitioner   further  argues as supplement to her memorandum that  the  ruling  of  the  Court  of Appeals treating the Special Proceeding No. 331 as one for both guardianship and  settlement of  estate  is  in contravention of our ruling in Gomez vs. Imperial,[28] which the petitioner quotes:

The distribution  of  the residue  of the estate of the deceased  is  a  function  pertaining properly not to the guardianship proceedings, but to another proceeding which the heirs are at liberty to initiate.

Petitioner’s reliance  on said case is misplaced.    In  the Gomez  case,  the action before the lower court was merely one for guardianship.  Therefore said  court  did  not   have the  jurisdiction to distribute the estate of the deceased.       While in the case at bar, the petition filed before the court was both for guardianship and settlement of estate.

IN VIEW OF THE FOREGOING,  the  petition of petitioner Antoinetta Chua is hereby denied.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RONITO BOLLER alias Obat, DIANITO BOLLER alias Nonoy and FRANCISCO BOLLER alias Bayani, accused-appellants.

D E C I S I O N

YNARES-SANTIAGO, J.:

This is an appeal from the decision of the Regional Trial Court, Calbayog City, Branch 31, in Criminal Cases Nos. 3022, 3023 and 3024, finding accused-appellants Ronito Boller, Dianito Boller and Francisco Boller guilty beyond reasonable doubt of three counts of Murder for the killing of Lolito dela Cruz, Jesus Orquin and Arsenio Orquin, sentencing each accused-appellant to suffer the penalty of reclusion perpetua in each count, and ordering them to indemnify, jointly and severally, the surviving heirs of the victims in the amount of P50,000.00 and to pay the costs in each case.[1]

On December 22, 1995, accused-appellants were charged with Murder under three informations, similarly worded save for the name of the victim, committed as follows:

That on or about the 27th day of October, 1995, at about 8:00 o’clock in the morning, at the coconut plantation of Barangay Hinayagan, Municipality of Gandara, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring, confederating together and mutually helping one another, with deliberate intent to kill, with treachery and evident premeditation, did then and there willfully, unlawfully and feloniously attack, assault, and shot one Lolito de la Cruz with the use of firearms (M-14 rifle,

M-1 rifle and shotgun), which the accused conveniently provided themselves for the purpose, thereby inflicting upon the latter fatal gunshot wound on his body, which caused the untimely death of said Lolito de la Cruz.

CONTRARY TO LAW.

When arraigned, the three accused-appellants, assisted by counsel, pleaded not guilty to the crime charged in each case. [2] Thereafter, the three cases were consolidated and tried jointly.[3]

It appears that at 8:00 in the morning of October 27, 1995, brothers Jacinto and Jesus Orquin, their father Arsenio Orquin, and their uncle Lolito de la Cruz, were working at their copra kiln in Barangay Hinayagan, Gandara, Samar. [4] They heard dogs barking, so Jacinto went outside to see what was wrong.  He saw accused-appellants Obat Boller, Nonoy Boller and Bayani Boller, about three meters away.  Obat was holding an M-14 Garand, Bayani Boller was holding a shotgun, and Nonoy Boller was armed with a Garand.   All of them were pointing their firearms at the copra kiln.  Jacinto ran away.  Accused-appellants opened fire at the copra kiln, hitting Arsenio Orquin, Jesus Orquin and Lolito de la Cruz.[5]

As Jacinto was running across the river, he heard Jesus shout, “Entoy, don’t leave me, I will die!”  Jacinto looked back and saw his brother in the water.  Jacinto went back and brought Jesus to the river bank.  He lay Jesus down and covered him with cogon grass.[6]

Jacinto proceeded towards Barangay Hinayan.  As he was running, he met Roberto Tolin.  Jacinto told Roberto that accused-appellants shot his brother, father and uncle, and asked him to go to the copra kiln and to save them.[7]

Moments later, Nixon de la Cruz reported to Barangay Captain Gutardo Berbis that his father, Lolito, was wounded and was in the house of Claro Arterio.  Upon instruction of Berbis, Kagawad Pedro Sumagdon proceeded to the house of Arterio, bringing with him a pen and paper on which to write down any statement that Lolito would make.[8] Sumagdon found Lolito lying on his right side.  He asked Lolito, “Why are you wounded?”  Lolito answered, “I was shot by Obat Boller, Nonoy Boller and Bayani Boller.” [9] Sumagdon wrote down the statement, which is translated in English as follows:

Statement of Lolito de la Cruz who was shot and these were the persons whom he saw, Nonoy Boller, Obat Boller and Bayani Boller, and they were clothed with military uniforms and some of them are members of CHDF of Bu-aw and the place where the shooting incident took place is near the coconut plantation of Arsenio Orquin.

Lolito’s declaration was witnessed and heard by Roberto Tolin and Ponciano Orquin.   The written statement, entitled “Ante-Mortem,” was signed by Sumagdon, Tolin and Orquin.  According to them, Lolito was unable to move his right hand at that time.[10]

Lolito was carried on a hammock and brought to Bu-aw for treatment, but he died before reaching the hospital.[11]

Roberto Tolin and others went to the scene of the crime and found the lifeless body of Arsenio Orquin lying face up.   Across the river, they found the corpse of Jesus Orquin.  Roberto and his companions gathered several empty shells on the ground about five arms’ length from the copra kiln.[12] The bodies of Jesus and Arsenio Orquin were brought to Gandara for autopsy.[13]

Dr. Cresilda Teston-Aguilar of the Rural Health Unit of Gandara, Samar, who conducted the autopsy, reported the following findings:

1.       On the victim Lolito de la Cruz:

a.       Exhibit “D” – The Autopsy Report with the following physical findings:

“A.         Avulsed gunshot wound 4 x 3 inches at the umbilical area, transecting the superior and inferior apigastric arteries and veins with evisceration of the large intestines.

Diagnosis:  Irreversible shock secondary to hemorrhage secondary to gunshot wounds.”

b.     Exhibit “E”        -           The Anatomical Report.

c.     Exhibit “F”        -           The Certificate of Death.

2.       On the victim Jesus Orquin:

14

document.doca.       Exhibit “G” – The Autopsy Report with the following findings:

“1. Avulsed gunshot wound 7 ½ inches x 4 ½  inches lower end of the anterior aspect of the left thigh transecting the femoral artery and veins with fracture of the distal end of the femur, left.

Diagnosis:  Irreversible shock secondary to hemorrhage secondary to gunshot wound.”

b.     Exhibit “H”          -           Anatomical Chart Series.

c.     Exhibit “I”           -           Certificate of Death.

3.       On the victim Arsenio Orquin:

a.       Exhibit “J” –     Autopsy Report with the following post-mortem findings:

“1. Avulsed gunshot wound 3 ½ inches in diameter 2 inches deep at the anterior aspect of the right upper thigh transecting the lateral femoral circumflex artery and vein.

2.  Avulsed gunshot wound 7 ½ x 3 inches at the upper chart, posterior aspect of the right leg transecting the posterior tribal artery and the small saphenous vein.

Diagnosis:  Irreversible shock secondary to hemorrhage secondary to gunshot wounds.”

b.     Exhibit “K”       -           Anatomical Chart Series.

c.     Exhibit “L”        -           Certificate of Death.[14]

Accused-appellants proffered the following defense:

The first witness, Ronito Boller, alias Obat, is one of the accused.  He testified that on October 27, 1995 at around 7:00 a.m., he was fetched by Luz Villocero at their house to work in the latter’s farm which was about ten (10) minute hike away from their house.  They stayed at the farm until 5:00 p.m., after which, he proceeded home.  He said that it was Jacinto Orquin, the private complainant in this case, who killed his cousin Tantoy Boller.  He was with Tantoy when the latter was killed.  The elder brother of Tantoy, Eduardo, filed a case against Jacinto but the latter likewise killed Eduardo.  He denied that he is a member of the CAFGU.[15]

The second witness, Luz Villocero, was presented to corroborate the testimony of Ronito Boller.  She testified that on October 27, 1995 at around 7:00 a.m., she fetched Ronito Boller from their house to have him help them in harvesting the corn.  They stayed at the farm till 5:00 p.m.  She disclosed that, all the time, Ronito was with them.[16]

The third witness, Dianito Boller, is one of the accused.  He testified that on October 27, 1995 at around 6:00 a.m., he was at their house taking his breakfast, after which he proceeded to the Camp because he was on duty up to 6:00 p.m.  He took his lunch at their house at 12:00 p.m. and he returned to the Camp.  He was with Sgt. Espiritu, Sgt. Palalay and PFC Raginal Narcing Selages who was his partner, and they stayed at the Camp until 6:00 p.m.[17]

The fourth witness, Zosimo Suarello, hired the services of Francisco Boller on October 27, 1995.  He testified that on October 27, 1995 at around 7:00 a.m., Francisco Boller was at their house because he hired the services of the latter to fix the nipa roof of their house.  Francisco ate lunch at his house and he stayed until 4:00 p.m.  He paid Francisco P50.00.[18]

The fifth witness, Narciso Selajes, is a CAFGU member and the duty partner of Dianito Boller on October 27, 1995.  He testified that on October 27, 1995 at around 6:00 a.m., he saw Dianito Boller enter the camp because they were on duty from 6:00 a.m. to 6:00 p.m.  They were issued firearms but after their duty they left their firearms behind inside the camp.[19]

The last witness, Francisco Boller, is one of the accused.  He testified that on October 24, 1995, he arrived at Barangay Buan because his father called for him to work in the farm.  He arrived at Barangay Buan from Barangay Hinayagan where he is residing.  He likewise helped his father on October 26, 1995 at around 5:00 p.m.  But he did not return to Barangay Hinayagan because he promised Zosimo Suarino that he will repair his roof.  He stayed at the house of Zosimo up to 4:00 p.m.  At around 10:00 a.m., Zosimo left because he was called by their commandant at the camp on account of the fact that something happened.  Upon the return of Zosimo, he was informed that Arsenio and Jesus Orquin were killed but the killers were not yet known.  On October 28, 1995, they were arrested by the police in connection with the killing of Arsenio and Jesus Orquin.[20]

On May 16, 2000, the trial court rendered judgment, the dispositive portion of which reads:

WHEREFORE, this Court declares all the accused, namely: Ronito Boller alias Obat, Dianito Boller alias Nonoy and Francisco Boller alias Bayani, GUILTY beyond reasonable doubt for three (3) counts of Murder in the above-entitled cases and hereby sentences each of them to suffer the penalties consisting of:

(1)          In Crim. Case No. 3022:

a.     Reclusion Perpetua;

b.     To jointly and severally indemnify the surviving heirs of the late Lolito de la Cruz in the amount of P50,000.00;

c.     To pay the costs.

(2)          In Crim. Case No. 3023:

a.     Reclusion Perpetua;

b.     To jointly and severally indemnify the surviving heirs of Jesus Orquin in the amount of P50,000.00;

c.     To pay the costs.

(3)          In Crim. Case No. 3024:

a.   Reclusion Perpetua;

b.   To jointly and severally indemnify the surviving legal heirs of the late Arsenio Orquin, and

c.   To pay the costs.

In the service of the sentence, each of the accused shall be credited with the full period of their preventive imprisonment, provided each of them has voluntarily agreed in writing to abide by the same disciplinary rules imposed upon convicted prisoners, otherwise, they shall only be entitled to four-fifths thereof pursuant to the provisions of Art. 29 of the Revised Penal code, as amended.

SO ORDERED.[21]

Accused-appellants appealed directly to this Court raising the following assignments of error:

I

THE LOWER COURT ERRED IN CONSIDERING THE STATEMENT MADE BY LOLITO DE LA CRUZ AS A DYING DECLARATION WHEN IT FAILED TO COMPLY WITH THE FORMAL REQUIREMENTS OF LAW.

15

document.docII

THE LOWER COURT ERRED IN APPRECIATING THE QUALIFYING CIRCUMSTANCE OF TREACHERY AGAINST ACCUSED-APPELLANTS WHICH WAS NOT PROVEN BY THE PROSECUTION

III

THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS OF THE CRIME OF MURDER, WHEN THEIR GUILT WAS NOT PROVEN BEYOND REASONABLE DOUBT.

In order that a dying declaration may be admissible in evidence, four requisites must concur:

1.  That the declaration must concern the cause and surrounding circumstances of the declarant’s death;

2.  That at the time the declaration was made, the declarant was under a consciousness of an impending death;

3.  That the declarant is competent as a witness; and

4.  That the declaration is offered in a criminal case for homicide, murder, or parricide, in which the declarant is a victim.[22]

All the above requisites are present in the case at bar.  The statement of Lolito de la Cruz certainly pertains to the cause and surrounding circumstance that eventually led to his death.  The victim was able to identify who the perpetrators were, their appearances and the place where the incident happened.  The victim sustained fatal wounds and survival was a remote possibility.   He pleaded that he be brought to a hospital.[23] He had to be carried in a hammock by several people,[24] but he died before reaching the hospital.[25] The autopsy conducted by Dr. Cresilda Teston-Aguilar confirmed the cause of his death as gunshot wounds.

The above circumstances indicate that the victim was conscious of his impending death.  The records are bereft of any fact that would otherwise consider the victim an incompetent witness.  Finally, the statement was offered in a criminal case in which the declarant was the victim.

Accused-appellants argue that the dying declaration is inadmissible in evidence, saying that “the barangay tanod reduced the dying declaration of the victim into writing using his own words and not that of the declarant himself worse, he didn’t read the same to Lolito de la Cruz after preparing it, nor did he ask the latter to sign or authenticate the statement.” [26] Nevertheless, the Rules do not require that the witness repeat the exact words of the victim, it being sufficient that he testify on the substance of what was said by the declarant.   Pedro Sumagdon, on cross-examination, explained:

Q       Now, it appears that what you have written here appears to be merely abstract, that these are not actually the exact words that were given to you but your own words as a result of what you deduced from the statements given to you?

A       What I wrote down there were statements coming from him but my mistake was, I was not able to let him sign on it.[27]

The rule is that a dying declaration may be oral or written.   If oral, the witness who heard it may testify thereto without the necessity of reproducing the word of the decedent, if he is able to give the substance thereof.   An unsigned dying declaration may be used as a memorandum by the witness who took it down.[28]

Accused-appellants raised the defense of alibi.  It is well settled that courts have always looked upon this defense with caution if not suspicion, not only because it is inherently unreliable but likewise it is rather easy to fabricate. [29] For alibi to prosper, it is not enough that the accused prove that he has been elsewhere when the crime is committed.  He must further demonstrate that it would have been physically impossible for him to be at the scene of the crime at the time of its commission.   Accused-appellants failed to discharge this burden in the case at bar.  More importantly, accused-appellants were positively identified by Lolito de la Cruz and Jacinto Orquin.  The testimony of Jacinto Orquin was found by the trial court as “straightforward and equivocal.” [30] Hence, the defense of alibi cannot prevail over the dying declaration and the positive identification of accused-appellants.

However, the trial court erred in appreciating treachery as a qualifying circumstance.  We find nothing in the records which show the exact manner of the killing.

Treachery cannot be presumed, it must be proved as clearly and convincingly as the killing itself.   Any doubt as to the existence of treachery must be resolved in favor of the accused.  We cannot, therefore, surmise from the circumstances that the accused perpetrated the killing with treachery.

However, we find that accused-appellants’ acts showed a common purpose, interest and design, thereby establishing a conspiracy among them.  Hence, the act of one is the act of all, and each accused-appellant is equally guilty of the crime as the others.

Accused-appellants, therefore, are guilty of three counts of Homicide, each punishable by reclusion temporal under Article 249 of the Revised Penal Code.  In the absence of either aggravating or mitigating circumstance, the prescribed penalty shall be imposed in its medium period.  Applying the Indeterminate Sentence Law, accused-appellants are therefore sentenced to suffer the penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of  reclusion temporal, as maximum.

In addition to the civil indemnity, accused-appellants should also be held liable for moral damages in the amount of P50,000.00, which needs no proof other than the fact of death of the victim.[31]

WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of Calbayog City, Branch 31, in Criminal Cases Nos. 3022, 3023 and 3024, is AFFIRMED with MODIFICATIONS.  Accused-appellants are found guilty beyond reasonable doubt of three counts of Homicide and each of them is sentenced in each count to suffer the indeterminate penalty of eight (8) years and one (1) day of prision mayor, as minimum, to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal, as maximum.  Further, accused-appellant are ordered to pay, jointly and severally, in each count the respective heirs of Lolito dela Cruz, Jesus Orquin and Arsenio Orquin, the sums of P50,000.00 as moral damages and P50,000.00 as civil indemnity.

Cost de officio.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ANTONIO PLASENCIA y DESAMPARADO alias "Tonying," ROBERTO DESCARTIN y PASICARAN alias "Ruby" and JOELITO (JULITO), DESCARTIN y PASICARAN, accused-appellants.

 

VITUG, J.:

Antonio Plasencia, Roberto Descartin and Joelito (Julito) Descartin were accused of robbery with homicide in an information, dated 20 December 1984, that read:

That on or about the 29th day of November, 1984 at around 3:00 o'clock in the afternoon, more or less, in sitio San Juan, Barangay Patao, Municipality of Bantayan, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused conspiring and confederating together and mutually helping one another, did then and there wilfully, unlawfully and feloniously, and with treachery, evident premeditation and taking advantage of their superior number and strength and with intent to kill, treacherously attack, assault and use personal violence upon Herminio Mansueto, thereby inflicting upon him the following physical injuries:

1. Stab wounds which was approximately two inches in length, parallel to the ribs and is located 1 1/2 inches below the right nipple on the right anterior axillary line and on the fifth intercostal space. On probing the wound was penetrating immediately up to the left parasternal border approximately hitting the heart;

2. Hacking wound 9 inches in length extending from the coracoid process of the left clavicle passing between the left anterior and the left mid axillary line up to the left 4th intercostal space including all muscle underlying the skin exposing the ribs.

Cause of death: Internal hemorrhage due to stab wound.

after which the body was placed inside a plastic bag and brought to an open sea by the pump boat owned by Roberto Descartin y Pasicaran and operated by Joelito Descartin y Pasicaran and dumped to the water by herein accused, and as a result of which said Herminio Mansueto died, herein accused, in pursuance of their conspiracy, wilfully, unlawfully and feloniously and with intent to gain, took and carried away the personal property belonging to Herminio Mansueto, namely: one (1) Seiko 5 "Stop Watch" valued at P3,000.00; one (1) Bicycle (standard size)

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document.docvalued at P1,000.00; and cash in the amount of P10,000.00, all in the total amount of FOUR-TEEN THOUSAND PESOS (P14,000.00), Philippine Currency, to the damage and prejudice of said oner (sic) in the said total sum.

All contrary to law, and with the qualifying circumstance of alevosia, and the generic aggravating circumstance of known premeditation.

CONTRARY TO LAW. 1

When arraigned, all the accused entered a plea of "not guilty" to the charge; whereupon, trial commenced.

The prosecution sought to establish, as follows:

At around ten o'clock in the morning of 29 November 1984, Herminio Mansueto, wearing a blue and white striped t-shirt, maong pants, Seiko 5 stop watch and a pandan hat, left on his bicycle for Barangay Patao, Bantayan, Cebu. He had with him P10,000.00 cash which he would use to purchase hogs from a certain "Ruby."

In Patao, Francisca Espina, also known in the locality as Pansing and whose house was just across the street from the respective residences of the three accused, saw at the roadside Herminio Mansueto and Roberto Descartin alias "Ruby" engaged in conversation. Pansing approached them and asked Mansueto if he would be interested in buying two of her pigs for P1,400.00. Mansueto said "yes" and promised that he would be right back.

Mansueto and Ruby meantime proceeded to the latter's piggery. Joelito Descartin and his brother-in-law Rene were also seen going to the place. After some time, Pansing noticed Joelito take Mansueto's bicycle. Believing that Mansueto was already preparing to leave and in her desire to catch up with him, Pansing promptly walked towards the piggery which was around 100 meters away from her house. She could see Mansueto leaning on the pigsty with Ruby on his right side and Antonio Plasencia alias "Tonying" on his left; behind was Joelito. 2 Midway, she was halted on her tracks; she suddenly saw Antonio stab Mansueto. The latter staggered towards Ruby who himself then delivered another stab blow. Mansueto fell on his back. Joelito started hitting Mansueto on the forehead while Rene held Mansueto's legs. 3 Except for a coconut tree and some ipil-ipil trees around the area, nothing obstructed Pansing's line of vision. Pansing rushed back home. The image of Antonio waving the weapon and the thought that she might herself be killed kept her from revealing to anyone what she saw. 4

The following day, in Kodia, Madridejos, Cebu, where Mansueto resided, his daughter Rosalinda reported to Francisca Tayo, the barangay captain, that her father had not returned home. Tayo proceeded to Putian, which was in Mansueto's itinerary, and then to Ruby's piggery in Patao, where a youngster, who turned out to be Ruby's son, innocently informed her that Mansueto's bicycle was taken by Joelito. 5

The day after, Francisca Tayo, accompanied by police officers of Madridejos, Cebu, and some relatives of Mansueto, went back to Ruby's place. On a railing of the pigpen, she saw blood stains. When she asked Ruby's father about it, he said that the stains had come from chicken blood. Going around the piggery, she also saw blood stains on a bamboo pole, which Ruby's father once again so identified as chicken blood. At the back of the piggery, Francisca noticed a digging which looked like an empty grave. The digging was measured and photos were taken. The police found a hat at the back of a hut beside the piggery, which was later recognized to be that which belonged to Mansueto. 6

In the morning of 30 November 1984, Patrolman Elpidio Desquitado of the Bantayan police went back to the piggery. This time, the police learned from Pansing herself that Joelito took Mansueto's bicycle. 7 Joelito was invited to the police headquarters to shed light on the case. Later, Joelito, waiving his right to counsel, executed a "confession." 8

Joelito narrated that, upon Ruby's instruction, he brought the bicycle to the piggery. Unexpectedly, he said, Tonying Plasencia stabbed Mansueto. Stunned, Joelito tried to run away but Tonying stopped him. Tonying then dragged the victim to a nearby house. Threatened by Tonying, Joelito agreed to later return to where the victim's body was dragged. At around eleven o'clock that evening, tonying and Joelito placed the body in a sack. Tonying asked Ruby to allow the use of the latter's pumpboat to ferry the body. Tonying paddled the pumpboat to the island of Po-Po'o where he picked up some pieces of stones. Then, again paddling the pumpboat farther away from the island, he ordered Joelito to start the engine of the boat. They headed for the islet of Gilotongin (Hilotongan). On the way, Tonying filled the sack with stones and, using a rope, tied to it the body of the victim. Tonying then unloaded their cargo into the sea.

Guided by Joelito, members of the Bantayan police force headed for the islet of Hilotongan on two pumpboats 9 in the area pinpointed to be the place where the body was dumped. On the second day of the search, the group was informed that the body had already surfaced near the vicinity of the search and delivered to the municipal building. 10

The municipal health officer of Bantayan, Dr. Oscar Quirante, examined the body and concluded that the victim died of internal hemorrhage due to stab wounds. 11 The bloated body was in a late stage of decomposition and its skin had sloughed off. 12 He found the victim's face to be "beyond recognition." There were "some rope signs in the body particularly in the waistline and in the knees." 13

The main defense interposed is one of alibi.

Antonio stated that on the whole day of 29 November 1984, he was out at sea fishing with his son. Joelito, on his part, asserted that he was in Barrio Baod, about an hour's walk from his residence, at the house of his fiancee. He returned to his house, he said, only the day after. Roberto ("Ruby"), Joelito's uncle, testified that on that fateful day, he was in Samoco Purok 2, Iligan City, and then left for Cebu on 06 December 1984 only after receiving a telegraph that Joelito was implicated in the crime.

The Regional Trial Court 14 did not give credence to the defense of alibi. It convicted the three accused of murder (punishable under Article 248 of the Revised Penal Code), instead of robbery with homicide, explaining that the term "homicide" was used in the information in its generic sense. 15 Finding conspiracy, the trial court ruled that the killing was qualified by both treachery and abuse of superior strength with the latter, however, being absorbed by the former. No other aggravating or mitigating circumstances being attendant in the commission of the crime, the trial court said, the penalty that could be imposed upon each of the accused was reclusion perpetua with a joint and several civil liability for indemnification to the heirs of Herminio Mansueto in the amount of P30,000.00.

The instant appeal was interposed by the three convicted appellants.

Appellant Antonio Plasencia attacks the credibility of the prosecution's lone eyewitness, Francisca Espina, alleging that she is a pejured witness who has an axe to grind against him because his dog had once bitten Francisca's child. 16 He bewails the fact that it has taken Francisca until 29 December 1984 to reveal what she supposedly has seen to the police authorities. Contending that treachery has not been duly proven as "no wound was inflicted at the back and as a matter of fact only one wound was fatal," 17 appellant argues that even if conspiracy were to be considered to have attended the commission of the crime, he could be held liable with the others, if at all, only for homicide.

Appellant Roberto Descartin, likewise challenging Francisca Espina's credibility because of her alleged inconsistencies, faults the trial court for allowing the witness to glance at the notes written on her palm while testifying. He also argues that his alibi, being corroborated, should have been given weight.

Appellant Joelito Descartin, in assailing the credibility of Francisca, has noted her "jittery actuation" while giving her testimony. He also questions the findings of the ponente for not being the presiding judge during the examination of Francisca on the witness stand.

The focus of this appeal is clearly one of credibility. The initial assessment on the testimony of a witness is done by the trial court, and its findings still deserve due regard notwithstanding that the presiding judge who pens the decision is not the one who personally may have heard the testimony. 18 The reliance on the transcript of stenographic notes should not, for that reason alone, render the judgment subject to challenge. 19 The continuity of the court and the efficacy of its decision are not affected by the cessation from the service of the judge presiding it 20 or by the fact that its writer merely took over from a colleague who presided at the trial. 21

It is asserted that the testimony of Francisca Espina should not be given worth since, while testifying, she would at times be seen reading some notes written on her left palm. Thus —

Q. May I see your left hand, may I see what is written there?

A. Witness showing to the court her left palm and the following words have been written in her palm in ball pen handwritten words and number of the pumpboat No. 56 and there is another word "petsa" and there are words which cannot be deciphered and all found in the palm of the left hand.

ATTY. MONTECLAR:

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document.docThat is all.

ATTY. GONZALES: RE-CROSS

Q Mrs. witness, you cannot deny of what these physical evidences or writings on the palm of your left hand. I want you to be honest, the law will not allow you to lie, you are subject to punishment and penalty. My question is, who wrote this on the palm of your left hand?

A I was the one who wrote this.

Q Why did you write that down?

A I was the one who wrote this.

Q Why, what was your purpose of writing that in your palm?

A I wrote this in my palm because I wanted to be sure of what time the incident happened, was the same as that I wrote in my palm.

Q And who furnished you the data in which you wrote in the palm of your hand?

A I was the one who made that.

ATTY. GONZALES:

Q You don't understand my question. You wrote that writing but where did you get that data?

A. This is just of what I know.

Q Since you claim to have all this knowledge of your mind, why did you find it necessary to write that in the palm of your hand and I notice during the trial that you used to look in your palm, why, is that necessary in your believe to testify here to what you knew about the incident.

A Because of the fact that I have an headache.

Q When did this headache occur?

A After I left my house because my sick child.

Q Now, knowing that you have an headache, did you not bring this to the attention of the Fiscal?

A No, I did not tell the Fiscal.

Q Do you know of your own that doing this is unfair and is not allowable while testifying in open court, do you know that is illegal act?

A No, I did not, know.

Q And you did all of this claiming that you do not know about the incident for the purpose of giving here testimony against the accused?

A Yes, sir. 22

The use of memory aids during an examination of a witness is not altogether proscribed. Section 16, Rule 132, of the Rules of Court states:

Sec. 16. When witness may refer to memorandum. — A witness may be allowed to refresh his memory respecting a fact, by anything written or recorded by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his memory and he knew that the same was correctly written or recorded; but in such case the writing or record must be produced and may be inspected by the adverse party, who may, if he chooses, cross-examine the witness upon it and may read it in evidence. So, also, a witness may testify from such a writing or record, though he retain no recollection of the particular facts, if he is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution. (Emphasis supplied.)

Allowing a witness to refer to her notes rests on the sound discretion of the trial court. 23 In this case, the exercise of that discretion has not been abused; the witness herself has explained that she merely wanted to be accurate on dates and like details.

Appellants see inadvertency on Francisca's appearing to be "jittery" on the witness stand. Nervousness and anxiety of a witness is a natural reaction particularly in the case of those who are called to testify for the first time. The real concern, in fact, should be when they show no such emotions.

Francisca did fail in immediately reporting the killing to the police authorities. Delay or vacillation, however, in making a criminal accusation does not necessarily adulterate the credibility of the witness. 24 Francisca, in her case, has expressed fears for her life considering that the assailants, being her neighbors, could easily exact retribution on her. 25 Also, the hesitancy in reporting the occurrence of a crime in rural areas is not unknown. 26

Francisca's inability to respond to the summons for another appearance in court for further questioning was satisfactorily explained by the prosecution. Francisca at the time just had a miscarriage and was found to be too weak to travel. The recall of the witness was, after all, at the sound discretion of the trial court. 27

The claim of appellant Roberto Descartin that Francisca and her husband, a tuba-gatherer, owed him P300.00, and the assertion made by appellant Antonio Plasencia on the dog-biting story involving Francisca's son truly were too petty to consider. It would be absurd to think that Francisca, for such trivial reasons was actually impelled to falsely implicate appellants for so grave an offense as murder.

Appellants questioned Francisca's ability to recognize them from a distance. Francisca knew appellants well; they all were her neighbors while Antonio Plasencia himself was her cousin. 28 The crime occurred at around three o'clock in the afternoon only about fifty (50) meters away from her. With an unobstructed view, Francisca's positive identification of the culprits should be a foregone matter. 29

The alleged inconsistencies in Francisca's testimony and in her sworn statement of 18 December 1984, cover matters of little significance. Minor inconsistencies in the testimonies of witnesses do not detract from their credibility; 30 on the contrary, they serve to strengthen their credibility and are taken as badges of truth rather than as indicia of falsehood 31even as they also erase suspicion of rehearsed testimony. 32

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

Like the trial court, we are not persuaded that robbery has been proven to be the principal motive for the crime that can warrant the conviction of appellants for the complex crime of robbery with homicide. 36 Appellants could only thus be held responsible for the killing of Mansueto. Conspiracy among the appellants has been established beyond doubt by the sum of their deeds pointing to a joint purpose and design. 37

Three aggravating circumstances were alleged in the information, i.e., treachery, evident premeditation and abuse of superior strength. The trial court disregarded the circumstance of evident premeditation and concluded that the attack upon Mansueto was committed with

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document.doctreachery and abuse of superior strength. On its finding that the assault was unexpectedly perpetrated upon the unarmed victim to ensure its execution without risk to themselves from the defense that the victim might make, the trial court appreciated treachery, which it deemed as having so absorbed abuse of superior strength.

The trial court was correct when it concluded that the crime committed was murder, a crime technically lower than robbery with homicide, 38 not, however, because of the attendance of treachery but of abuse of superior strength. Treachery, in our view, was not satisfactorily proven by the prosecution. Francisca Espina simply testified that appellant Plasencia stabbed Mansueto while the latter and the appellants were in a huddle. There was nothing adduced on whether or not the victim gave provocation, an indispensable issue in the proper appreciation of treachery. 39 The presence, nonetheless, of the aggravating circumstance of abuse of superior strength qualified the killing to murder. 40 The three appellants utilized superiority in numbers and employed deadly weapons in assaulting the unarmed Mansueto.

There being no other aggravating or mitigating circumstances to consider, the trial court aptly imposed the penalty ofreclusion perpetua, the medium period 41 of the penalty of reclusion temporal maximum to death prescribed by Article 248 of the Revised Penal Code. In conformity with prevailing jurisprudential law, the heirs of the victim should be indemnified in the amount of P50,000.00. 42

WHEREFORE, the decision of the trial court convicting appellants Antonio Plasencia, Roberto Descartin and Joelito (Julito) Descartin of the crime of murder and imposing on each of them the penalty of reclusion perpetua is hereby AFFIRMED with the modification that the indemnity to the heirs of the victim, Herminio Mansueto, is raised to P50,000.00. Costs against appellants.

SO ORDERED.

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