G.R. No. 133739      May 29, 2002

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.TOMAS COCA JR., RICARDO COCA and RAMIL COCA, accused-appellants.

YNARES-SANTIAGO, J.:

This is an appeal from the decision1 of the Regional Trial Court of Cebu City, Branch 18, in Criminal Case No. CBU-43013 convicting accused-appellants of the crime of murder; sentencing each of them to suffer the penalty ofreclusion perpetua; and to indemnify the heirs of the deceased in the amount of P50,000.00, plus the costs.1âwphi1.nêt

The Information against accused-appellants states:

That on or about the 20th day of March, 1996, at about 7:00 o'clock in the evening, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the said accused, armed with a gun, conniving and confederating together and mutually helping one another, with deliberate intent, with intent to kill, with treachery and evident premeditation, did then and there suddenly and unexpectedly attack, assault and use personal violence upon one Edilberto Banate, by shooting him with said gun, thereby inflicting upon him physical injuries:

"GUNSHOT WOUND"

as a consequence of which said Edilberto Banate died after four (4) months.

CONTRARY TO LAW.2

Upon arraignment on January 23, 1997, accused-appellants pleaded not guilty.3 Trial on the merits thereafter followed.

Accused-appellants and the victim, Edilberto Banate, were related by affinity, and all residents of Cabulihan, Guba, Cebu City. Brothers Ricardo Coca and Tomas Coca, Jr. are the first degree cousins of Merolina Banate, the victim's wife; while Ramil Coca is the son of Ricardo Coca.4

At about 9:00 in the evening of March 13, 1996, Tomas, Ricardo and Ramil Coca mauled the victim, as a result of which the latter sustained several injuries and seriously broke his left shoulder.5 Unluckily, this was just the beginning of the dangers yet to beset him.

A week later, on March 20, 1996, at 7:00 in the evening, while the victim was having supper with his wife Merolina and their two children inside their kitchen, a sudden burst of gunfire emanated from underneath the house. Merolina peeped through the slits on the floor and saw three persons sitting on their heels. The fluorescent lamp which illuminated their kitchen and the 100 watt bulb of the adjacent house directly opposite the kitchen enabled Merolina to identify accused-appellant Tomas, Ricardo and Ramil Coca, who were all underneath the house and looking upwards. Tomas Coca was positioned between Ricardo and Ramil and aiming a gun at Edilberto. She turned and saw her husband, slumped on the floor with blood oozing from his body.6

Meanwhile, Alexander Singson, a visitor at Merolina's house who left earlier to buy cigarettes was alerted by the gunshots. He hurried to the scene and saw the three accused-appellants

running away from the house of the victim. Thereafter, he rushed to the house of the victim and helped bring him to the hospital.7

The victim sustained a massive gunshot would on the chest. The bullet pierced the right rib, penetrating the pulmonary region all the way to, and fracturing the spinal column, where the slug was embedded. As a consequence, the victim became paralyzed from waist down. He eventually died on July 2, 1996.8

Meronila purposely withheld the identity of the culprits. She feared that revealing the names of the persons who shot her husband would endanger not only her life but also that of her children who were alone in their house all through out the time that she was in the hospital with her injured husband. It was only after almost five months, or on August 19, 1996, that she finally divulged the identities of the perpetrators.9

Accused-appellants, on the other hand, raised the defense of denial and alibi. Tomas Coca, Jr. testified that at about 7:00 in the evening of March 20, 1996, he and Ricardo Coca attended a birthday party in the house of a certain Mario Rebales10 at Calubihan, Guba, Cebu City. Sometime that evening, Ramil Coca arrived and informed them that Edilberto Banate was shot. Then, he followed Ricardo Coca and Pedro Soquib to the house of the victim but he did not proceed when he noticed that there were no more people there.11 This was corroborated by Ricardo Coca who declared that on the night of March 20, 1996, he and Tomas were in the house of Mario Rebales, as he was hired to cook the food for the birthday party of Rebales' daughter. After sometime, his son, Ramil Coca, arrived and told them that Edilberto Banate was shot. Thereafter, he and Pedro Soquib, followed by Ramil and Tomas, proceeded to the house of the victim, but the latter was already brought to the hospital.12

Ramil Coca affirmed the version of Ricardo and Tomas and added that on the night of March 20, 1996, he was eating supper with his family when they heard three successive gunshots. When he and his mother went out to check what happened, they saw Roel Soquib and Melino Leyson carrying the body of Edilberto Banate. Then, at the instruction of his mother, he proceeded to the house of Mario Rebales to inform his father of the shooting incident. Thereafter, his father, Ricardo and Pedro Soquib followed by Tomas, proceeded to the scene of the crime; while he went home.13

The version of the defense was further corroborated by the testimonies of defense witnesses Pedro Soquib and Mario Rebales.14 Defense witnesses Sergio Borres and Roel Soquib, who helped bring the victim to the hospital, further narrated that Merolina Banate told them that she was not able to recognize the culprit because it was dark.15

On July 30, 1997, the trial court rendered the assailed judgment of conviction. The dispositive portion thereof reads:

WHEREFORE, in view of all the foregoing facts and circumstances, accused Tomas Coca, Jr., Ricardo Coca and Ramil Coca are hereby imposed each the penalty of RECLUSON PERPETUA with the accessory penalties of the law; to jointly indemnify the heirs of the deceased Edilberto Banate in the sum of P50,000.00 and to pay the costs. The accused, however, are credited in full during the whole period of their detention provided that they will signify in writing that they will abide by all the rules and regulations of the penitentiary.

SO ORDERED.16

In their appeal, accused-appellants contend that the prosecution failed to establish beyond reasonable doubt the identity of the perpetrators. They claimed that at 7:00 in the evening, it was impossible for Merolina Banate to recognize the culprits through a ¾ inch gap on the bamboo flooring, considering that the area underneath the house where the gunfire allegedly came from was dark. In the same vein, accused-appellants assert that the testimony of Alexander Singson is fabricated. According to them, it is unbelievable that Singson had committed to memory the appearance of the assailants not only because it was dark, but also because Singson himself admitted that he saw the assailants only for the first time during the incident. They further argued that if Merolina indeed recognized the perpetrators, she would have immediately revealed their names to those who responded and to the members of the media who interviewed her. Accused-appellants likewise alleged that Merolina's reaction immediately after the gun bursts was contrary to human experience. The natural reaction would have been to seek cover, turn off the light, shout for help, or cuddle the injured, and not to peep through the floor where the shots came from. Finally, accused-appellants Ricardo and Ramil Coca contend that even assuming that the version of the prosecution were true, they should have been acquitted considering that there was no evidence to show that they connived with accused-appellant Tomas Coca, Jr.

The contentions are without merit.

Visibility is indeed a vital factor in the determination of whether or not an eyewitness have identified the perpetrator of a crime. However, it is settled that when conditions of visibility are favorable, and the witnesses do not appear to be biased, their assertion as to the identity of the malefactor should normally be accepted. Illumination produced by kerosene lamp or a flashlight is sufficient to allow identification of persons. Wicklamps, flashlights, even moonlight or starlight may, in proper situations, be considered sufficient illumination, making the attack on the credibility of witnesses solely on that ground unmeritorious.17

In the case at bar, the kitchen/dining area where the victim was shot from underneath the house was illuminated by a fluorescent lamp. There would therefore be light falling on the faces of accused-appellants, especially so that they were all facing upwards. Ordinary human experience would tell us that bamboo flooring with gaps smaller than an inch allows every ray of light emanating from a fluorescent lamp to freely penetrate through the bamboo slats. With this environmental milieu, the fluorescent lamp would indeed provide sufficient illumination to identify the accused-appellants underneath a 3 to 4 feet high bamboo flooring. What is more, the 100 watt bulb of the adjacent house, six meters away, and directly opposite the kitchen where the victim was shot, provided additional illumination below the victim's house. Clearly, therefore, the circumstances surrounding the commission of the crime certainly obliterate the slightest shred of doubt on the veracity of accused-appellant's identification.

Moreover, it is not amiss to state that "relatives of a victim of a crime have a natural knack for remembering the face of the assailant and they, more than anybody else, would be concerned with obtaining justice for the victim by the malefactor being brought to the face of the law." Indeed, family members who have witnessed the killing of a loved one usually strive to remember the faces of the assailants.18 With more reason

therefore that we should believe the positive identification of accused-appellants by Merolina Banate. Being close blood relatives and residents of the same barangay, Merolina would naturally and particularly be familiar with the face and build of accused-appellants.

A reading of the transcript of stenographic notes shows that even under cross-examination, Merolina stayed firm and consistent in her identification of accused-appellants, thus –

ATTY. VAILOCES:

Q.       You will admit that you did not see the person or persons in the act of shooting your husband?

A.       I do not admit because I actually saw the persons who actually shot my husband.

Q.       What did you see?

A.       I saw the three of them.

x x x      x x x      x x x19

Q.       You said that you saw Tomas Coca in the act of shooting although that is not stated in your affidavit. My question now is: how were you able to see when it was nighttime?

A.       I intently peep through the floor and because it was well-lighted by the fluorescent lamp I vividly saw them underneath the house. I know them because they are my close relatives.

FISCAL GALANIDA:

There was a portion not translated:

WITNESS:

A.       And even the adjacent area it was also well lighted. Moreover, they are my close relatives even by their smell I could sense they were (sic).

x x x      x x x      x x x

Q.       What light illumines (sic) from (sic) the outside portion of the house?

x x x      x x x      x x x

WITNESS:

A.       It was a 100 watt bulb near our house. It gave bright light from the outside.

Q.       How far is that bulb outside to the place where you allegedly saw Tomas Coca?

x x x      x x x      x x x

A.       Witness indicating a distance of six (6) meters

x x x      x x x      x x x20

ATTY. VAILOCES:

Q.       When you said you saw Tomas Coca underneath your house and then left your house of course he was the only one you saw and no other persons?

A.       The three of them. It was Jr. Coca who held the firearm.

x x x      x x x      x x x

ATTY. VAILOCES:

Q.       Now, what were the other two doing at the time you saw them?

A.       They were by the side also looking towards us.

COURT:

Q.       You are sure of that?

A.       I am sure Your Honor.21

Accused-appellants were likewise positively identified by prosecution witness Alexander Singson as the persons he saw running away from the house of the victim right after he heard the gunshots. But even if we disregard the testimony of Singson, the persuasive and compelling testimony of the victim's wife, juxtaposed with the circumstances which proved feasible the identification of accused-appellants, are enough to prove their culpability beyond any scintilla of doubt.

Neither does the failure of Merolina to immediately reveal the identity of the culprits cast doubt on the truthfulness of her testimony. It must be stressed that Merolina was anxious of her and her children's safety. The threat on their lives was indeed a deterrent strong enough to mute her. As consistently held by the Court, fear of reprisal and death threats are accepted as adequate explanations for the delay in reporting crimes.22

Moreover, Merolina's act of peeping through the flooring immediately after they were fired upon was not contrary to human experience. Merolina was not yet aware that her husband was hit when she instinctively looked through the gaps in the bamboo floor. Hence, her instinct could not have told her at that time to cuddle her husband. At any rate, it is a settled jurisprudence that different people react differently to a given situation and there is no standard form of behavioral response when one is confronted with a strange, startling or frightful experience. One person's spontaneous response may be aggression while another person's reaction may be cold indifference.23

While it is true that accused-appellants Ricardo and Ramil Coca did not actually shoot the victim, their conspiratorial acts and omissions would likewise make them liable for his death. Ricardo and Ramil purposely accompanied Tomas underneath the house of the victim, such that they could not be considered innocent spectators. They simultaneously left the scene of the crime together with Tomas and did nothing to stop or prevent the latter from shooting the victim. Finally, they had the motive to kill the victim as they in fact previously mauled him after a misunderstanding.

So also, the defenses of denial and alibi raised by accused-appellants must fail. Not only are said defenses inherently weak, they cannot likewise prevail over their positive identification24 by prosecution witness Merolina Banate, who was not shown to have been impelled by any ill-motive to falsely impute the commission of the crime against them, her very own relatives. Furthermore, the locus criminis is only 300 meters25 and 40 meters26 away, respectively, from the place where accused-appellants Ricardo and Tomas, as well as Ramil, were allegedly at when the crime occurred. This negates the physical

impossibility of their presence at the scene of the crime at the time the felony was committed.27

There is treachery when the offender commits any of the crimes against persons, employing means, methods, or forms in the execution thereof which tend to directly and specially insure the execution of the crime, without risk to himself arising from the defense which the offended party might make. The essence of treachery is the sudden, unexpected, and unforeseen attack on the person of the victim, without the slightest provocation on the part of the latter.28 Judging from the circumstances which attended the shooting of the deceased, treachery undoubtedly qualified the present case to murder. This is so because accused-appellants obviously devised a way, that is, by shooting the victim from underneath the house, to effectively execute the crime without risk to themselves arising from the defense which the unsuspecting victim might put up.1âwphi1.nêt

In sum, the Court finds that the trial court did not err in upholding the version of the prosecution and disregarding the defenses put up by accused-appellants. Though Merolina did not see the actual shooting of her husband, the circumstantial evidences presented by the prosecution are sufficient to sustain a conviction. Under the Rules of Court, conviction based on circumstantial evidence is sufficient if: (a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.29 Here, more than one circumstance was presented by the prosecution. The victim's wife heard gunshots from underneath their house. Immediately thereafter, she peeped through their bamboo flooring and saw the three accused-appellants sitting on their heels and looking upwards. Accused-appellant Tomas Coca, Jr. was holding a gun pointed upwards while seated between accused-appellants Ricardo and Ramil Coca. When she turned to her husband, she saw that he was shot. As the three accused-appellants fled, prosecution witness Alexander Singson saw them running away from the house of the victim. All these, added to accused-appellants' previous altercation with the victim, form an unbroken chain of circumstances pointing to accused-appellants, and no other, as the persons responsible for the victim's death.

The trial court did not overlook any fact of weight and substance which, if properly considered, would have altered the result of the case. Hence, its findings of facts and assessment of the credibility of the witnesses deserve to be sustained on appeal. For having had the distinct opportunity of directly observing the demeanor and conduct of the witnesses under oath, the trial court is in a better position to ascertain whether or not a witness is telling the truth.30

The penalty for the crime of murder is reclusion perpetua to death.31 The two penalties being both indivisible, and there being neither mitigating nor aggravating circumstance in the commission of the offense, the lesser of the two penalties, which is reclusion perpetua, should be applied pursuant to the second paragraph of Article 63 of the Revised Penal Code.

As for accused-appellant's civil liability, he should, in addition to the P50,000.00 civil indemnity and the costs, further pay the heirs of the deceased the amount of P50,000.00 as moral damages in line with recent jurisprudence.32

WHEREFORE, in view of all the foregoing, the decision of the Regional Trial Court of Cebu City, Branch 18, in Criminal Case No. CBU-43013, finding accused-appellants Tomas Coca, Jr.,

Ricardo Coca, and Ramil Coca guilty beyond reasonable doubt of the crime of murder and sentencing each of them to suffer the penalty of reclusion perpetua is AFFIRMED with the MODIFICATION that in addition to the P50,000.00 civil indemnity and the costs, accused-appellants are further ordered to pay the heirs of the deceased, jointly and severally, the amount of P50,000.00 as moral damages.

SO ORDERED.

G.R. No. 143340       August 15, 2001

LILIBETH SUNGA-CHAN and CECILIA SUNGA, petitioners, vs.LAMBERTO T. CHUA, respondent.

GONZAGA-REYES, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court of the Decision1 of the Court of Appeals dated January 31, 2000 in the case entitled "Lamberto T. Chua vs. Lilibeth Sunga Chan and Cecilia Sunga" and of the Resolution dated May 23, 2000 denying the motion for reconsideration of herein petitioners Lilibeth Sunga and Cecilia Sunga (hereafter collectively referred to as petitioners).

The pertinent facts of this case are as follows:

On June 22, 1992, Lamberto T. Chua (hereafter respondent) filed a complaint against Lilibeth Sunga Chan (hereafter petitioner Lilibeth) and Cecilia Sunga (hereafter petitioner Cecilia), daughter and wife, respectively of the deceased Jacinto L. Sunga (hereafter Jacinto), for "Winding Up of Partnership Affairs, Accounting, Appraisal and Recovery of Shares and Damages with Writ of Preliminary Attachment" with the Regional Trial Court, Branch 11, Sindangan, Zamboanga del Norte.

Respondent alleged that in 1977, he verbally entered into a partnership with Jacinto in the distribution of Shellane Liquefied Petroleum Gas (LPG) in Manila. For business convenience, respondent and Jacinto allegedly agreed to register the business name of their partnership, SHELLITE GAS APPLIANCE CENTER (hereafter Shellite), under the name of Jacinto as a sole proprietorship. Respondent allegedly delivered his initial capital contribution of P100,000.00 to Jacinto while the latter in turn produced P100,000.00 as his counterpart contribution, with the intention that the profits would be equally divided between them. The partnership allegedly had Jacinto as manager, assisted by Josephine Sy (hereafter Josephine), a sister of the wife respondent, Erlinda Sy. As compensation, Jacinto would receive a manager's fee or remuneration of 10% of the gross profit and Josephine would receive 10% of the net profits, in addition to her wages and other remuneration from the business.

Allegedly, from the time that Shellite opened for business on July 8, 1977, its business operation went quite and was profitable. Respondent claimed that he could attest to success of their business because of the volume of orders and deliveries of filled Shellane cylinder tanks supplied by Pilipinas Shell Petroleum Corporation. While Jacinto furnished respondent with the merchandise inventories, balance sheets and net worth of Shellite from 1977 to 1989, respondent however suspected that the amount indicated in these documents were understated and undervalued by Jacinto and Josephine for their own selfish reasons and for tax avoidance.

Upon Jacinto's death in the later part of 1989, his surviving wife, petitioner Cecilia and particularly his daughter, petitioner Lilibeth, took over the operations, control, custody, disposition and management of Shellite without respondent's consent. Despite respondent's repeated demands upon petitioners for accounting, inventory, appraisal, winding up and restitution of his net shares in the partnership, petitioners failed to comply. Petitioner Lilibeth allegedly continued the operations of Shellite, converting to her own use and advantage its properties.

On March 31, 1991, respondent claimed that after petitioner Lilibeth ran out the alibis and reasons to evade respondent's demands, she disbursed out of the partnership funds the amount of P200,000.00 and partially paid the same to respondent. Petitioner Lilibeth allegedly informed respondent that the P200,000.00 represented partial payment of the latter's share in the partnership, with a promise that the former would make the complete inventory and winding up of the properties of the business establishment. Despite such commitment, petitioners allegedly failed to comply with their duty to account, and continued to benefit from the assets and income of Shellite to the damage and prejudice of respondent.

On December 19, 1992, petitioners filed a Motion to Dismiss on the ground that the Securities and Exchange Commission (SEC) in Manila, not the Regional Trial Court in Zamboanga del Norte had jurisdiction over the action. Respondent opposed the motion to dismiss.

On January 12, 1993, the trial court finding the complaint sufficient in from and substance denied the motion to dismiss.

On January 30, 1993, petitioners filed their Answer with Compulsory Counter-claims, contending that they are not liable for partnership shares, unreceived income/profits, interests, damages and attorney's fees, that respondent does not have a cause of action against them, and that the trial court has no jurisdiction over the nature of the action, the SEC being the agency that has original and exclusive jurisdiction over the case. As counterclaim, petitioner sought attorney's fees and expenses of litigation.

On August 2, 1993, petitioner filed a second Motion to Dismiss this time on the ground that the claim for winding up of partnership affairs, accounting and recovery of shares in partnership affairs, accounting and recovery of shares in partnership assets/properties should be dismissed and prosecuted against the estate of deceased Jacinto in a probate or intestate proceeding.

On August 16, 1993, the trial denied the second motion to dismiss for lack of merit.

On November 26, 1993, petitioners filed their Petition for Certiorari, Prohibition and Mandamus with the Court of Appeals docketed as CA-G.R. SP No. 32499 questioning the denial of the motion to dismiss.

On November 29, 1993, petitioners filed with the trial court a Motion to Suspend Pre-trial Conference.

On December 13, 1993, the trial court granted the motion to suspend pre-trial conference.

On November 15, 1994, the Court of Appeals denied the petition for lack of merit.

On January 16, 1995, this Court denied the petition for review on certiorari filed by petitioner, "as petitioners failed to show that a reversible error was committed by the appellate court."2

On February 20, 1995, entry of judgment was made by the Clerk of Court and the case was remanded to the trial court on April 26, 1995.

On September 25, 1995, the trial court terminated the pre-trial conference and set the hearing of the case of January 17, 1996. Respondent presented his evidence while petitioners were

considered to have waived their right to present evidence for their failure to attend the scheduled date for reception of evidence despite notice.

On October 7, 1997, the trial court rendered its Decision ruling for respondent. The dispositive of the Decision reads:

"WHEREFORE, judgment is hereby rendered in favor of the plaintiff and against the defendants, as follows:

(1) DIRECTING them to render an accounting in acceptable form under accounting procedures and standards of the properties, assets, income and profits of the Shellite Gas Appliance Center Since the time of death of Jacinto L. Sunga, from whom they continued the business operations including all businesses derived from Shellite Gas Appliance Center, submit an inventory, and appraisal of all these properties, assets, income, profits etc. to the Court and to plaintiff for approval or disapproval;

(2) ORDERING them to return and restitute to the partnership any and all properties, assets, income and profits they misapplied and converted to their own use and advantage the legally pertain to the plaintiff and account for the properties mentioned in pars. A and B on pages 4-5 of this petition as basis;

(3) DIRECTING them to restitute and pay to the plaintiff ½ shares and interest of the plaintiff in the partnership of the listed properties, assets and good will (sic) in schedules A, B and C, on pages 4-5 of the petition;

(4) ORDERING them to pay the plaintiff earned but unreceived income and profits from the partnership from 1988 to May 30, 1992, when the plaintiff learned of the closure of the store the sum of P35,000.00 per month, with legal rate of interest until fully paid;

(5) ORDERING them to wind up the affairs of the partnership and terminate its business activities pursuant to law, after delivering to the plaintiff all the ½ interest, shares, participation and equity in the partnership, or the value thereof in money or money's worth, if the properties are not physically divisible;

(6) FINDING them especially Lilibeth Sunga-Chan guilty of breach of trust and in bad faith and hold them liable to the plaintiff the sum of P50,000.00 as moral and exemplary damages; and,

(7) DIRECTING them to reimburse and pay the sum of P25,000.00 as attorney's (sic) and P25,000.00 as litigation expenses.

NO special pronouncements as to COSTS.

SO ORDERED."3

On October 28, 1997, petitioners filed a Notice of Appeal with the trial court, appealing the case to the Court of Appeals.

On January 31, 2000, the Court of Appeals dismissed the appeal. The dispositive portion of the Decision reads:

"WHEREFORE, the instant appeal is dismissed. The appealed decision is AFFIRMED in all respects."4

On May 23, 2000, the Court of Appeals denied the motion for reconsideration filed by petitioner.

Hence, this petition wherein petitioner relies upon following grounds:

"1. The Court of Appeals erred in making a legal conclusion that there existed a partnership between respondent Lamberto T. Chua and the late Jacinto L. Sunga upon the latter'' invitation and offer and that upon his death the partnership assets and business were taken over by petitioners.

2. The Court of Appeals erred in making the legal conclusion that laches and/or prescription did not apply in the instant case.

3. The Court of Appeals erred in making the legal conclusion that there was competent and credible evidence to warrant the finding of a partnership, and assuming arguendo that indeed there was a partnership, the finding of highly exaggerated amounts or values in the partnership assets and profits."5

Petitioners question the correctness of the finding of the trial court and the Court of Appeals that a partnership existed between respondent and Jacinto from 1977 until Jacinto's death. In the absence of any written document to show such partnership between respondent and Jacinto, petitioners argues that these courts were proscribes from hearing the testimonies of respondent and his witness, Josephine, to prove the alleged partnership three years after Jacinto's death. To support this argument, petitioners invoke the "Dead Man's Statute' or "Survivorship Rule" under Section 23, Rule 130 of the Rules of Court that provides:

"SEC. 23. Disqualification by reason of death or insanity of adverse party. – Parties or assignors of parties to a case, or persons in whose behalf a case is prosecuted, against an executor or administrator or other representative of a deceased person, or against a person of unsound mind, upon a claim or demand against the estate of such deceased person, or against such person of unsound mind, cannot testify as to any matter of fact occurring before the death of such deceased person or before such person became of unsound mind."

Petitioners thus implore this Court to rule that the testimonies of respondent and his alter ego, Josephine, should not have been admitted to prove certain claims against a deceased person (Jacinto), now represented by petitioners.

We are not persuaded.

A partnership may be constituted in any form, except where immovable property of real rights are contributed thereto, in

which case a public instrument shall necessary.6 Hence, based on the intention of the parties, as gathered from the facts and ascertained from their language and conduct, a verbal contract of partnership may arise.7 The essential profits that must be proven to that a partnership was agreed upon are (1) mutual contribution to a common stock, and (2) a joint interest in the profits.8 Understandably so, in view of the absence of the written contract of partnership between respondent and Jacinto, respondent resorted to the introduction of documentary and testimonial evidence to prove said partnership. The crucial issue to settle then is to whether or not the "Dead Man's Statute" applies to this case so as to render inadmissible respondent's testimony and that of his witness, Josephine.

The "Dead Man's Statute" provides that if one party to the alleged transaction is precluded from testifying by death, insanity, or other mental disabilities, the surviving party is not entitled to the undue advantage of giving his own uncontradicted and unexplained account of the transaction.9 But before this rule can be successfully invoked to bar the introduction of testimonial evidence, it is necessary that:

"1. The witness is a party or assignor of a party to case or persons in whose behalf a case in prosecuted.

2. The action is against an executor or administrator or other representative of a deceased person or a person of unsound mind;

3. The subject-matter of the action is a claim or demand against the estate of such deceased person or against person of unsound mind;

4. His testimony refers to any matter of fact of which occurred before the death of such deceased person or before such person became of unsound mind."10

Two reasons forestall the application of the "Dead Man's Statute" to this case.

First, petitioners filed a compulsory counterclaim11 against respondents in their answer before the trial court, and with the filing of their counterclaim, petitioners themselves effectively removed this case from the ambit of the "Dead Man's Statute".12 Well entrenched is the rule that when it is the executor or administrator or representatives of the estates that sets up the counterclaim, the plaintiff, herein respondent, may testify to occurrences before the death of the deceased to defeat the counterclaim.13 Moreover, as defendant in the counterclaim, respondent is not disqualified from testifying as to matters of facts occurring before the death of the deceased, said action not having been brought against but by the estate or representatives of the deceased.14

Second, the testimony of Josephine is not covered by the "Dead Man's Statute" for the simple reason that she is not "a party or assignor of a party to a case or persons in whose behalf a case is prosecuted." Records show that respondent offered the testimony of Josephine to establish the existence of the partnership between respondent and Jacinto. Petitioners' insistence that Josephine is the alter ego of respondent does not make her an assignor because the term "assignor" of a party means "assignor of a cause of action which has arisen, and not the assignor of a right assigned before any cause of action has arisen."15 Plainly then, Josephine is merely a witness of respondent, the latter being the party plaintiff.

We are not convinced by petitioners' allegation that Josephine's testimony lacks probative value because she was allegedly coerced coerced by respondent, her brother-in-law, to testify in his favor, Josephine merely declared in court that she was requested by respondent to testify and that if she were not requested to do so she would not have testified. We fail to see how we can conclude from this candid admission that Josephine's testimony is involuntary when she did not in any way categorically say that she was forced to be a witness of respondent.

Also, the fact that Josephine is the sister of the wife of respondent does not diminish the value of her testimony since relationship per se, without more, does not affect the credibility of witnesses.16

Petitioners' reliance alone on the "Dead Man's Statute" to defeat respondent's claim cannot prevail over the factual findings of the trial court and the Court of Appeals that a partnership was established between respondent and Jacinto. Based not only on the testimonial evidence, but the documentary evidence as well, the trial court and the Court of Appeals considered the evidence for respondent as sufficient to prove the formation of partnership, albeit an informal one.

Notably, petitioners did not present any evidence in their favor during trial. By the weight of judicial precedents, a factual matter like the finding of the existence of a partnership between respondent and Jacinto cannot be inquired into by this Court on review.17 This Court can no longer be tasked to go over the proofs presented by the parties and analyze, assess and weigh them to ascertain if the trial court and the appellate court were correct in according superior credit to this or that piece of evidence of one party or the other.18 It must be also pointed out that petitioners failed to attend the presentation of evidence of respondent. Petitioners cannot now turn to this Court to question the admissibility and authenticity of the documentary evidence of respondent when petitioners failed to object to the admissibility of the evidence at the time that such evidence was offered.19

With regard to petitioners' insistence that laches and/or prescription should have extinguished respondent's claim, we agree with the trial court and the Court of Appeals that the action for accounting filed by respondents three (3) years after Jacinto's death was well within the prescribed period. The Civil Code provides that an action to enforce an oral contract prescribes in six (6) years20 while the right to demand an accounting for a partner's interest as against the person continuing the business accrues at the date of dissolution, in the absence of any contrary agreement.21 Considering that the death of a partner results in the dissolution of the partnership22, in this case, it was Jacinto's death that respondent as the surviving partner had the right to an account of his interest as against petitioners. It bears stressing that while Jacinto's death dissolved the partnership, the dissolution did not immediately terminate the partnership. The Civil Code23 expressly provides that upon dissolution, the partnership continues and its legal personality is retained until the complete winding up of its business, culminating in its termination.24

In a desperate bid to cast doubt on the validity of the oral partnership between respondent and Jacinto, petitioners maintain that said partnership that had initial capital of P200,000.00 should have been registered with the Securities and Exchange Commission (SEC) since registration is mandated by the Civil Code, True, Article 1772 of the Civil Code requires that

partnerships with a capital of P3,000.00 or more must register with the SEC, however, this registration requirement is not mandatory. Article 1768 of the Civil Code25 explicitly provides that the partnership retains its juridical personality even if it fails to register. The failure to register the contract of partnership does not invalidate the same as among the partners, so long as the contract has the essential requisites, because the main purpose of registration is to give notice to third parties, and it can be assumed that the members themselves knew of the contents of their contract.26 In the case at bar, non-compliance with this directory provision of the law will not invalidate the partnership considering that the totality of the evidence proves that respondent and Jacinto indeed forged the partnership in question.

WHEREFORE, in view of the foregoing, the petition is DENIED and the appealed decision is AFFIRMED.

SO ORDERED.1âwphi1.nêt

G.R. No. 107383             February 20, 1996

CECILIA ZULUETA, petitioner, vs.COURT OF APPEALS and ALFREDO MARTIN, respondents.

D E C I S I O N

MENDOZA, J.:

This is a petition to review the decision of the Court of Appeals, affirming the decision of the Regional Trial Court of Manila (Branch X) which ordered petitioner to return documents and papers taken by her from private respondent's clinic without the latter's knowledge and consent.

The facts are as follows:

Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982, petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and private respondent's secretary, forcibly opened the drawers and cabinet in her husband's clinic and took 157 documents consisting of private correspondence between Dr. Martin and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martin's passport, and photographs. The documents and papers were seized for use in evidence in a case for legal separation and for disqualification from the practice of medicine which petitioner had filed against her husband.

Dr. Martin brought this action below for recovery of the documents and papers and for damages against petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which, after trial, rendered judgment for private respondent, Dr. Alfredo Martin, declaring him "the capital/exclusive owner of the properties described in paragraph 3 of plaintiff's Complaint or those further described in the Motion to Return and Suppress" and ordering Cecilia Zulueta and any person acting in her behalf to a immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominal damages; P5,000.00, as moral damages and attorney's fees; and to pay the costs of the suit. The writ of preliminary injunction earlier issued was made final and petitioner Cecilia Zulueta and her attorneys and representatives were enjoined from "using or submitting/admitting as evidence" the documents and papers in question. On appeal, the Court of Appeals affirmed the decision of the Regional Trial Court. Hence this petition.

There is no question that the documents and papers in question belong to private respondent, Dr. Alfredo Martin, and that they were taken by his wife, the herein petitioner, without his knowledge and consent. For that reason, the trial court declared the documents and papers to be properties of private respondent, ordered petitioner to return them to private respondent and enjoined her from using them in evidence. In appealing from the decision of the Court of Appeals affirming the trial court's decision, petitioner's only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the documents and papers (marked as Annexes A-1 to J-7 of respondent's comment in that case) were admissible in evidence and, therefore, their use by petitioner's attorney, Alfonso Felix did not constitute malpractice or gross misconduct, For this reason it is contended that the Court of Appeals erred in affirming the decision of the trial court instead of dismissing private respondent's complaint.

Petitioner's contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other things, private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in using the documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct because of the injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr., this Court took note of the following defense of Atty. Felix; Jr. which it found to be "impressed with merit:"2

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains that:

. . . .

4. When respondent refiled Cecilia's case for legal separation before the Pasig Regional Trial Court, there was admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from using the documents Annex "A-1 to J-7." On September 6, 1983, however having appealed the said order to this Court on a petition for certiorari, this Court issued a restraining order on aforesaid date which order temporarily set aside the order of the trial court. Hence, during the enforceability of this Court's order, respondent's request for petitioner to admit the genuineness and authenticity of the subject annexes cannot be looked upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth and authenticity of the questioned annexes, At that point in time, would it have been malpractice for respondent to use petitioner's admission as evidence against him in the legal separation case pending in the Regional Trial Court of Makati? Respondent submits it is not malpractice.

Significantly, petitioner's admission was done not thru his counsel but by Dr. Martin himself under oath, Such verified admission constitutes an affidavit, and, therefore, receivable in evidence against him. Petitioner became bound by his admission. For Cecilia to avail herself of her husband's admission and use the same in her action for legal separation cannot be treated as malpractice.

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration that his use of the documents and papers for the purpose of securing Dr. Martin's admission as to their genuiness and authenticity did not constitute a violation of the injunctive order of the trial court. By no means does the decision in that case establish the admissibility of the documents and papers in question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of preliminary injunction issued by the trial court, it was only because, at the time he used the documents and papers, enforcement of the order of the trial court was temporarily restrained by this Court. The TRO issued by this Court was eventually lifted as the petition for certiorari filed by petitioner against the trial court's order was dismissed and, therefore, the prohibition against the further use of the documents and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction declaring "the privacy of communication and correspondence [to be] inviolable"3 is no less applicable simply because it is the wife (who thinks herself aggrieved by her husband's infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a "lawful order [from a] court or when public safety or order requires otherwise, as prescribed by law."4 Any violation of this provision renders the evidence obtained inadmissible "for any purpose in any proceeding." 5

The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the constitutional protection is ever available to him or to her.

The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband nor wife may testify for or against the other without the consent of the affected spouse while the marriage subsists.6 Neither may be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified exceptions.7 But one thing is freedom of communication; quite another is a compulsion for each one to share what one knows with the other. And this has nothing to do with the duty of fidelity that each owes to the other.

WHEREFORE, the petition for review is DENIED for lack of merit.

SO ORDERED.

G.R. Nos. 115439-41 July 16, 1997

PEOPLE OF THE PHILIPPINES, petitioner, vs.HONORABLE SANDIGANBAYAN, MANSUETO V. HONRADA, CEFERINO S. PAREDES, JR. and GENEROSO S. SANSAET, respondents.

 

REGALADO, J.:

Through the special civil action for certiorari at bar, petitioner seeks the annulment of the resolution of respondent Sandiganbayan, promulgated on December 22, 1993, which denied petitioner's motion for the discharge of respondent Generoso S. Sansaet to be utilized as a state witness, and its resolution of March 7, 1994 denying the motion for reconsideration of its preceding disposition. 1

The records show that during the dates material to this case, respondent Honrada was the Clerk of Court and Acting Stenographer of the First Municipal Circuit Trial Court, San Francisco-Bunawan-Rosario in Agusan del Sur. Respondent Paredes was successively the Provincial Attorney of Agusan del Sur, then Governor of the same province, and is at present a Congressman. Respondent Sansaet was a practicing attorney who served as counsel for Paredes in several instances pertinent to the criminal charges involved in the present recourse.

The same records also represent that sometime in 1976, respondent Paredes applied for a free patent over Lot No. 3097-A, Pls-67 of the Rosario Public Land Subdivision Survey. His application was approved and, pursuant to a free patent granted to him, an original certificate of title was issued in his favor for that lot which is situated in thepoblacion of San Francisco, Agusan del Sur.

However, in 1985, the Director of Lands filed an action 2 for the cancellation of respondent Paredes' patent and certificate of title since the land had been designated and reserved as a school site in the aforementioned subdivision survey. The trial court rendered judgment 3 nullifying said patent and title after finding that respondent Paredes had obtained the same through fraudulent misrepresentations in his application. Pertinently, respondent Sansaet served as counsel of Paredes in that civil case. 4

Consequent to the foregoing judgment of the trial court, upon the subsequent complaint of the Sangguniang Bayan and the preliminary investigation conducted thereon, an information for perjury 5 was filed against respondent Paredes in the Municipal Circuit Trial Court. 6 On November 27, 1985, the Provincial Fiscal was, however, directed by the Deputy Minister of Justice to move for the dismissal of the case on the ground inter alia of prescription, hence the proceedings were terminated. 7 In this criminal case, respondent Paredes was likewise represented by respondent Sansaet as counsel.

Nonetheless, respondent Sansaet was thereafter haled before the Tanodbayan for preliminary investigation on the charge that, by using his former position as Provincial Attorney to influence and induce the Bureau of Lands officials to favorably act on his application for free patent, he had violated Section 3(a) of Republic Act No. 3019, as amended. For the third time, respondent Sansaet was Paredes' counsel of record therein.

On August 29, 1988, the Tanodbayan, issued a resolution 8 recommending the criminal prosecution of respondent Paredes. Atty. Sansaet, as counsel for his aforenamed co-respondent, moved for reconsideration and, because of its legal significance in this case, we quote some of his allegations in that motion:

. . . respondent had been charged already by the complainants before the Municipal Circuit Court of San Francisco, Agusan del Sur, went to jail on detention in 1984 under the same set of facts and the same evidence . . . but said case after arraignment, was ordered dismissed by the court upon recommendation of the Department of Justice. Copy of the dismissal order, certificate of arraignmentand the recommendation of the Department of Justice are hereto attached for ready reference; thus the filing of this case will be a case of double jeopardy for respondent herein . . . 9 (Emphasis supplied.)

A criminal case was subsequently filed with the Sandiganbayan 10 charging respondent Paredes with a violation of Section 3 (a) of Republic Act No. 3019, as amended. However, a motion to quash filed by the defense was later granted in respondent court's resolution of August 1, 1991 11 and the case was dismissed on the ground of prescription.

On January 23, 1990, one Teofilo Gelacio, a taxpayer who had initiated the perjury and graft charges against respondent Paredes, sent a letter to the Ombudsman seeking the investigation of the three respondents herein for falsification of public documents. 12 He claimed that respondent Honrada, in conspiracy with his herein co-respondents, simulated and certified as true copies certain documents purporting to be a notice of arraignment, dated July 1, 1985, and transcripts of stenographic notes supposedly taken during the arraignment of Paredes on the perjury charge. 13These falsified documents were annexed to respondent Paredes' motion for reconsideration of the Tanodbayan resolution for the filing of a graft charge against him, in order to support his contention that the same would constitute double jeopardy.

In support of his claim, Gelacio attached to his letter a certification that no notice of arraignment was ever received by the Office of the Provincial Fiscal of Agusan del Sur in connection with that perjury case; and a certification of Presiding Judge Ciriaco Ariño that said perjury case in his court did not reach the arraignment stage since action thereon was suspended pending the review of the case by the Department of Justice. 14

Respondents filed their respective counter-affidavits, but Sansaet subsequently discarded and repudiated the submissions he had made in his counter-affidavit. In a so-called Affidavit of Explanations and Rectifications, 15respondent Sansaet revealed that Paredes contrived to have the graft case under preliminary investigation dismissed on the ground of double jeopardy by making it appear that the perjury case had been dismissed by the trial court after he had been arraigned therein.

For that purpose, the documents which were later filed by respondent Sansaet in the preliminary investigation were prepared and falsified by his co-respondents in this case in the house of respondent Paredes. To evade responsibility for his own participation in the scheme, he claimed that he did so upon the

instigation and inducement of respondent Paredes. This was intended to pave the way for his discharge as a government witness in the consolidated cases, as in fact a motion therefor was filed by the prosecution pursuant to their agreement.

Withal, in a resolution 16 dated February 24, 1992, the Ombudsman approved the filing of falsification charges against all the herein private respondents. The proposal for the discharge of respondent Sansaet as a state witness was rejected by the Ombudsman on this evaluative legal position:

. . . Taking his explanation, it is difficult to believe that a lawyer of his stature, in the absence of deliberate intent to conspire, would be unwittingly induced by another to commit a crime. As counsel for the accused in those criminal cases, Atty. Sansaet had control over the case theory and the evidence which the defense was going to present. Moreover, the testimony or confession of Atty. Sansaet falls under the mantle of privileged communication between the lawyer and his client which may be objected to, if presented in the trial.

The Ombudsman refused to reconsider that resolution 17 and, ostensibly to forestall any further controversy, he decided to file separate informations for falsification of public documents against each of the herein respondents. Thus, three criminal cases, 18 each of which named one of the three private respondents here as the accused therein, were filed in the graft court. However, the same were consolidated for joint trial in the Second Division of the Sandiganbayan.

As stated at the outset, a motion was filed by the People on July 27, 1993 for the discharge of respondent Sansaet as a state witness. It was submitted that all the requisites therefor, as provided in Section 9, Rule 119 of the Rules of Court, were satisfied insofar as respondent Sansaet was concerned. The basic postulate was that, except for the eyewitness testimony of respondent Sansaet, there was no other direct evidence to prove the confabulated falsification of documents by respondents Honrada and Paredes.

Unfortunately for the prosecution, respondent Sandiganbayan, hewing to the theory of the attorney-client privilege adverted to by the Ombudsman and invoked by the two other private respondents in their opposition to the prosecution's motion, resolved to deny the desired discharge on this ratiocination:

From the evidence adduced, the opposition was able to establish that client and lawyer relationship existed between Atty. Sansaet and Ceferino Paredes, Jr., before, during and after the period alleged in the information. In view of such relationship, the facts surrounding the case, and other confidential matter must have been disclosed by accused Paredes, as client, to accused Sansaet, as his lawyer in his professional capacity. Therefore, the testimony of Atty. Sansaet on the facts surrounding the offense charged in the information is privileged. 19

Reconsideration of said resolution having been likewise denied, 20 the controversy was elevated to this Court by the prosecution in an original action for the issuance of the

extraordinary writ of certiorari against respondent Sandiganbayan.

The principal issues on which the resolution of the petition at bar actually turns are therefore (1) whether or not the projected testimony of respondent Sansaet, as proposed state witness, is barred by the attorney-client privilege; and (2) whether or not, as a consequence thereof, he is eligible for discharge to testify as a particeps criminis.

As already stated, respondent Sandiganbayan ruled that due to the lawyer-client relationship which existed between herein respondents Paredes and Sansaet during the relevant periods, the facts surrounding the case and other confidential matters must have been disclosed by respondent Paredes, as client, to respondent Sansaet, as his lawyer. Accordingly, it found "no reason to discuss it further since Atty. Sansaet cannot be presented as a witness against accused Ceferino S. Paredes, Jr. without the latter's consent." 21

The Court is of a contrary persuasion. The attorney-client privilege cannot apply in these cases, as the facts thereof and actuations of both respondents therein constitute an exception to the rule. For a clearer understanding of that evidential rule, we will first sweep aside some distracting mental cobwebs in these cases.

1. It may correctly be assumed that there was a confidential communication made by Paredes to Sansaet in connection with Criminal Cases Nos. 17791-93 for falsification before respondent court, and this may reasonably be expected since Paredes was the accused and Sansaet his counsel therein. Indeed, the fact that Sansaet was called to witness the preparation of the falsified documents by Paredes and Honrada was as eloquent a communication, if not more, than verbal statements being made to him by Paredes as to the fact and purpose of such falsification. It is significant that the evidentiary rule on this point has always referred to "any communication," without distinction or qualification. 22

In the American jurisdiction from which our present evidential rule was taken, there is no particular mode by which a confidential communication shall be made by a client to his attorney. The privilege is not confined to verbal or written communications made by the client to his attorney but extends as well to information communicated by the client to the attorney by other means. 23

Nor can it be pretended that during the entire process, considering their past and existing relations as counsel and client and, further, in view of the purpose for which such falsified documents were prepared, no word at all passed between Paredes and Sansaet on the subject matter of that criminal act. The clincher for this conclusion is the undisputed fact that said documents were thereafter filed by Sansaet in behalf of Paredes as annexes to the motion for reconsideration in the preliminary investigation of the graft case before the Tanodbayan. 24 Also, the acts and words of the parties during the period when the documents were being falsified were necessarily confidential since Paredes would not have invited Sansaet to his house and allowed him to witness the same except under conditions of secrecy and confidence.

2. It is postulated that despite such complicity of Sansaet at the instance of Paredes in the criminal act for which the latter stands charged, a distinction must be made between confidential communications relating to past crimes already committed, and future crimes intended to be committed, by the client.

Corollarily, it is admitted that the announced intention of a client to commit a crime is not included within the confidences which his attorney is bound to respect. Respondent court appears, however, to believe that in the instant case it is dealing with a past crime, and that respondent Sansaet is set to testify on alleged criminal acts of respondents Paredes and Honrada that have already been committed and consummated.

The Court reprobates the last assumption which is flawed by a somewhat inaccurate basis. It is true that by now, insofar as the falsifications to be testified to in respondent court are concerned, those crimes were necessarily committed in the past. But for the application of the attorney-client privilege, however, the period to be considered is the date when the privileged communication was made by the client to the attorney in relation to either a crime committed in the past or with respect to a crime intended to be committed in the future. In other words, if the client seeks his lawyer's advice with respect to a crime that the former has theretofore committed, he is given the protection of a virtual confessional seal which the attorney-client privilege declares cannot be broken by the attorney without the client's consent. The same privileged confidentiality, however, does not attach with regard to a crime which a client intends to commit thereafter or in the future and for purposes of which he seeks the lawyer's advice.

Statements and communications regarding the commission of a crime already committed, made by a party who committed it, to an attorney, consulted as such, are privileged communications. Contrarily, the unbroken stream of judicial dicta is to the effect that communications between attorney and client having to do with the client'scontemplated criminal acts, or in aid or furtherance thereof, are not covered by the cloak of privileges ordinarily existing in reference to communications between attorney and client. 25 (Emphases supplied.)

3. In the present cases, the testimony sought to be elicited from Sansate as state witness are the communications made to him by physical acts and/or accompanying words of Parades at the time he and Honrada, either with the active or passive participation of Sansaet, were about to falsify, or in the process of falsifying, the documents which were later filed in the Tanodbayan by Sansaet and culminated in the criminal charges now pending in respondent Sandiganbayan. Clearly, therefore, the confidential communications thus made by Paredes to Sansaet were for purposes of and in reference to the crime of falsification which had not yet been committed in the past by Paredes but which he, in confederacy with his present co-respondents, later committed. Having been made for purposes of a future offense, those communications are outside the pale of the attorney-client privilege.

4. Furthermore, Sansaet was himself a conspirator in the commission of that crime of falsification which he, Paredes and Honrada concocted and foisted upon the authorities. It is well settled that in order that a communication between a lawyer and his client may be privileged, it must be for a lawful purpose or in furtherance of a lawful end. The existence of an unlawful purpose prevents the privilege from attaching. 26 In fact, it has also been pointed out to the Court that the "prosecution of the honorable relation of attorney and client will not be permitted under the guise of privilege, and every communication made to an attorney by a client for a criminal purpose is a conspiracy or attempt at a conspiracy which is not only lawful to divulge, but which the attorney under certain circumstances may be bound to disclose at once in the interest of justice." 27

It is evident, therefore, that it was error for respondent Sandiganbayan to insist that such unlawful communications intended for an illegal purpose contrived by conspirators are nonetheless covered by the so-called mantle of privilege. To prevent a conniving counsel from revealing the genesis of a crime which was later committed pursuant to a conspiracy, because of the objection thereto of his conspiring client, would be one of the worst travesties in the rules of evidence and practice in the noble profession of law.

II

On the foregoing premises, we now proceed to the consequential inquiry as to whether respondent Sansaet qualifies, as a particeps criminis, for discharge from the criminal prosecution in order to testify for the State. Parenthetically, respondent court, having arrived at a contrary conclusion on the preceding issue, did not pass upon this second aspect and the relief sought by the prosecution which are now submitted for our resolution in the petition at bar. We shall, however, first dispose likewise of some ancillary questions requiring preludial clarification.

1. The fact that respondent Sandiganbayan did not fully pass upon the query as to whether or not respondent Sansaet was qualified to be a state witness need not prevent this Court from resolving that issue as prayed for by petitioner. Where the determinative facts and evidence have been submitted to this Court such that it is in a position to finally resolve the dispute, it will be in the pursuance of the ends of justice and the expeditious administration thereof to resolve the case on the merits, instead of remanding it to the trial court. 28

2. A reservation is raised over the fact that the three private respondents here stand charged in three separate informations. It will be recalled that in its resolution of February 24, 1992, the Ombudsman recommended the filing of criminal charges for falsification of public documents against all the respondents herein. That resolution was affirmed but, reportedly in order to obviate further controversy, one information was filed against each of the three respondents here, resulting in three informations for the same acts of falsification.

This technicality was, however, sufficiently explained away during the deliberations in this case by the following discussion thereof by Mr. Justice Davide, to wit:

Assuming no substantive impediment exists to block Sansaet's discharge as state witness, he can, nevertheless, be discharged even if indicted under a separate information. I suppose the three cases were consolidated for joint trial since they were all raffled to the Second Division of the Sandiganbayan. Section 2, Rule XV of the Revised Rules of the Sandiganbayan allows consolidation in only one Division of cases arising from the same incident or series of incidents, or involving common questions of law and fact. Accordingly, for all legal intents and purposes, Sansaet stood as co-accused and he could be discharged as state witness. It is of no moment that he was charged separately from his co-accused. While Section 9 of Rule 119 of the 1985 Rules of Criminal Procedure uses the word jointly, which was absent in the old provision, the consolidated and joint trial has

the effect of making the three accused co-accused or joint defendants, especially considering that they are charged for the same offense. In criminal law, persons indicted for the same offense and tried together are called joint defendants.

As likewise submitted therefor by Mr. Justice Francisco along the same vein, there having been a consolidation of the three cases, the several actions lost their separate identities and became a single action in which a single judgment is rendered, the same as if the different causes of action involved had originally been joined in a single action. 29

Indeed, the former provision of the Rules referring to the situation "(w)hen two or more persons are charged with the commission of a certain offense" was too broad and indefinite; hence the word "joint" was added to indicate the identity of the charge and the fact that the accused are all together charged therewith substantially in the same manner in point of commission and time. The word "joint" means "common to two or more," as "involving the united activity of two or more," or "done or produced by two or more working together," or "shared by or affecting two or more. 30 Had it been intended that all the accused should always be indicted in one and the same information, the Rules could have said so with facility, but it did not so require in consideration of the circumstances obtaining in the present case and the problems that may arise from amending the information. After all, the purpose of the Rule can be achieved by consolidation of the cases as an alternative mode.

2. We have earlier held that Sansaet was a conspirator in the crime of falsification, and the rule is that since in a conspiracy the act of one is the act of all, the same penalty shall be imposed on all members of the conspiracy. Now, one of the requirements for a state witness is that he "does not appear to be the most guilty." 31 not that he must be the least guilty 32 as is so often erroneously framed or submitted. The query would then be whether an accused who was held guilty by reason of membership in a conspiracy is eligible to be a state witness.

To be sure, in People vs. Ramirez, et al. 33 we find this obiter:

It appears that Apolonio Bagispas was the real mastermind. It is believable that he persuaded the others to rob Paterno, not to kill him for a promised fee. Although he did not actually commit any of the stabbings, it was a mistake to discharge Bagispas as a state witness. All the perpetrators of the offense, including him, were bound in a conspiracy that made them equally guilty.

However, prior thereto, in People vs. Roxas, et al., 34 two conspirators charged with five others in three separate informations for multiple murder were discharged and used as state witnesses against their confederates. Subsequent thereto, in Lugtu, et al. vs. Court of Appeals, et al., 35 one of the co-conspirators was discharged from the information charging him and two others with the crime of estafa. The trial court found that he was not the most guilty as, being a poor and ignorant man, he was easily convinced by his two co-accused to open the account with the bank and which led to the commission of the crime.

On appeal, this Court held that the finding of respondent appellate court that Lugtu was just as guilty as his co-accused,

and should not be discharged as he did not appear to be not the most guilty, is untenable. In other words, the Court took into account the gravity or nature of the acts committed by the accused to be discharged compared to those of his co-accused, and not merely the fact that in law the same or equal penalty is imposable on all of them.

Eventually, what was just somehow assumed but not explicity articulated found expression in People vs. Ocimar, et al., 36 which we quote in extenso:

Ocimar contends that in the case at bar Bermudez does not satisfy the conditions for the discharge of a co-accused to become a state witness. He argues that no accused in a conspiracy can lawfully be discharged and utilized as a state witness, for not one of them could satisfy the requisite of appearing not to be the most guilty. Appellant asserts that since accused Bermudez was part of the conspiracy, he is equally guilty as the others.

We do not agree. First, there is absolute necessity for the testimony of Bermudez. For, despite the presentation of four (4) other witnesses, none of them could positively identify the accused except Bermudez who was one of those who pulled the highway heist which resulted not only in the loss of cash, jewelry and other valuables, but even the life of Capt. Cañeba, Jr. It was in fact the testimony of Bermudez that clinched the case for the prosecution. Second, without his testimony, no other direct evidence was available for the prosecution to prove the elements of the crime. Third, his testimony could be, as indeed it was, substantially corroborated in its material points as indicated by the trial court in its well-reasoned decision. Fourth, he does not appear to be the most guilty. As the evidence reveals, he was only invited to a drinking party without having any prior knowledge of the plot to stage a highway robbery. But even assuming that he later became part of the conspiracy, he does not appear to be the most guilty. What the law prohibits is that the most guilty will be set free while his co-accused who are less guilty will be sent to jail. And by "most guilty" we mean the highest degree of culpability in terms of participation in the commission of the offense and not necessarily the severity of the penalty imposed. While all the accused may be given the same penalty by reason of conspiracy, yet one may be considered least guilty if We take into account his degree of participation in the perpetration of the offense. Fifth, there is no evidence that he has at any time been convicted of any offense involving moral turpitude.

xxx xxx xxx

Thus, We agree with the observations of the Solicitor General that the rule on the discharge of an accused to be utilized as state witness clearly looks at his actual and individual participation in the commission of the crime, which may or may not have been perpetrated in conspiracy with the other accused. Since Bermudez was not individually responsible for the killing committed on the occasion of the robbery except by reason of conspiracy, it cannot be said then that Bermudez appears to be the most guilty. Hence, his discharge to be a witness for the government is clearly warranted. (Emphasis ours.)

The rule of equality in the penalty to be imposed upon conspirators found guilty of a criminal offense is based on the concurrence of criminal intent in their minds and translated into concerted physical action although of varying acts or degrees of depravity. Since the Revised Penal Code is based on the classical school of thought, it is the identity of the mens rea which is considered the predominant consideration and, therefore, warrants the imposition of the same penalty on the consequential theory that the act of one is thereby the act of all.

Also, this is an affair of substantive law which should not be equated with the procedural rule on the discharge of particeps criminis. This adjective device is based on other considerations, such as the need for giving immunity to one of them in order that not all shall escape, and the judicial experience that the candid admission of an accused regarding his participation is a guaranty that he will testify truthfully. For those reasons, the Rules provide for certain qualifying criteria which, again, are based on judicial experience distilled into a judgmental policy.

III

The Court is reasonably convinced, and so holds, that the other requisites for the discharge of respondent Sansaet as a state witness are present and should have been favorably appreciated by the Sandiganbayan.

Respondent Sansaet is the only cooperative eyewitness to the actual commission of the falsification charged in the criminal cases pending before respondent court, and the prosecution is faced with the formidable task of establishing the guilt of the two other co-respondents who steadfastly deny the charge and stoutly protest their innocence. There is thus no other direct evidence available for the prosecution of the case, hence there is absolute necessity for the testimony of Sansaet whose discharge is sought precisely for that purpose. Said respondent has indicated his conformity thereto and has, for the purposes required by the Rules, detailed the substance of his projected testimony in his Affidavit of Explanation and Rectifications.

His testimony can be substantially corroborated on its material points by reputable witnesses, identified in the basic petition with a digest of their prospective testimonies, as follows: Judge Ciriaco C. Ariño, Municipal Circuit Trial Court in San Francisco, Agusan del Sur; Provincial Prosecutor and Deputized Ombudsman Prosecutor Claudio A. Nistal; Teofilo Gelacio, private complainant who initiated the criminal cases through his letter-complaint; Alberto Juvilan of the Sangguniang Bayan of San Fernando, Agusan del Sur, who participated in the resolution asking their Provincial Governor to file the appropriate case against respondent Paredes, and Francisco Macalit, who obtained the certification of non-arraignment from Judge Ariño.

On the final requirement of the Rules, it does not appear that respondent Sansaet has at any time been convicted of any offense involving moral turpitude. Thus, with the confluence of all the requirements for the discharge of this respondent, both the Special Prosecutor and the Solicitor General strongly urge and propose that he be allowed to testify as a state witness.

This Court is not unaware of the doctrinal rule that, on this procedural aspect, the prosecution may propose but it is for the trial court, in the exercise of its sound discretion, to determine the merits of the proposal and make the corresponding

disposition. It must be emphasized, however, that such discretion should have been exercised, and the disposition taken on a holistic view of all the facts and issues herein discussed, and not merely on the sole issue of the applicability of the attorney-client privilege.

This change of heart and direction respondent Sandiganbayan eventually assumed, after the retirement of two members of its Second Division 37 andthe reconstitution thereof. In an inversely anticlimactic Manifestation and Comment 38 dated June 14, 1995, as required by this Court in its resolution on December 5, 1994, the chairman and new members thereof 39 declared:

4) That the questioned Resolutions of December 22, 1993 and March 7, 1994 upon which the Petition for Certiorari filed by the prosecution are based, was penned by Associate Justice Narciso T. Atienza and concurred in by the undersigned and Associate Justice Augusto M. Amores;

5) That while the legal issues involved had been already discussed and passed upon by the Second Division in the aforesaid Resolution, however, after going over the arguments submitted by the Solicitor-General and re-assessing Our position on the matter, We respectfully beg leave of the Honorable Supreme Court to manifest that We are amenable to setting aside the questioned Resolutions and to grant the prosecution's motion to discharge accused Generoso Sansaet as state witness, upon authority of the Honorable Supreme Court for the issuance of the proper Resolution to that effect within fifteen (15) days from notice thereof.

WHEREFORE, the writ of certiorari prayed for is hereby granted SETTING ASIDE the impunged resolutions and ORDERING that the present reliefs sought in these cases by petitioner be allowed and given due course by respondent Sandiganbayan.

SO ORDERED.

G.R. No. 105938 September 20, 1996

TEODORO R. REGALA, EDGARDO J. ANGARA, AVELINO V. CRUZ, JOSE C. CONCEPCION, ROGELIO A. VINLUAN, VICTOR P. LAZATIN and EDUARDO U. ESCUETA, petitioners, vs.THE HONORABLE SANDIGANBAYAN, First Division, REPUBLIC OF THE PHILIPPINES, ACTING THROUGH THE PRESIDENTIAL COMMISSION ON GOOD GOVERNMENT, and RAUL S. ROCO, respondents.

G.R. No. 108113 September 20, 1996

PARAJA G. HAYUDINI, petitioner, vs.THE SANDIGANBAYAN and THE REPUBLIC OF THE PHILIPPINES, respondents.

 

KAPUNAN, J.:

These case touch the very cornerstone of every State's judicial system, upon which the workings of the contentious and adversarial system in the Philippine legal process are based — the sanctity of fiduciary duty in the client-lawyer relationship. The fiduciary duty of a counsel and advocate is also what makes the law profession a unique position of trust and confidence, which distinguishes it from any other calling. In this instance, we have no recourse but to uphold and strengthen the mantle of protection accorded to the confidentiality that proceeds from the performance of the lawyer's duty to his client.

The facts of the case are undisputed.

The matters raised herein are an offshoot of the institution of the Complaint on July 31, 1987 before the Sandiganbayan by the Republic of the Philippines, through the Presidential Commission on Good Government against Eduardo M. Cojuangco, Jr., as one of the principal defendants, for the recovery of alleged ill-gotten wealth, which includes shares of stocks in the named corporations in PCGG Case No. 33 (Civil Case No. 0033), entitled "Republic of the Philippines versus Eduardo Cojuangco, et al." 1

Among the dependants named in the case are herein petitioners Teodoro Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, Rogelio A. Vinluan, Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayudini, and herein private respondent Raul S. Roco, who all were then partners of the law firm Angara, Abello, Concepcion, Regala and Cruz Law Offices (hereinafter referred to as the ACCRA Law Firm). ACCRA Law Firm performed legal services for its clients, which included, among others, the organization and acquisition of business associations and/or organizations, with the correlative and incidental services where its members acted as incorporators, or simply, as stockholders. More specifically, in the performance of these services, the members of the law firm delivered to its client documents which substantiate the client's equity holdings, i.e., stock certificates endorsed in blank representing the shares registered in the client's name, and a blank deed of trust or assignment covering said shares. In the course of their dealings with their clients, the members of the law firm acquire information relative to the assets of clients as well as their personal and business circumstances. As members of the ACCRA Law Firm, petitioners and private respondent Raul Roco admit that they assisted in the organization and acquisition of the companies included in Civil Case No. 0033, and in keeping with the office practice, ACCRA

lawyers acted as nominees-stockholders of the said corporations involved in sequestration proceedings. 2

On August 20, 1991, respondent Presidential Commission on Good Government (hereinafter referred to as respondent PCGG) filed a "Motion to Admit Third Amended Complaint" and "Third Amended Complaint" which excluded private respondent Raul S. Roco from the complaint in PCGG Case No. 33 as party-defendant. 3Respondent PCGG based its exclusion of private respondent Roco as party-defendant on his undertaking that he will reveal the identity of the principal/s for whom he acted as nominee/stockholder in the companies involved in PCGG Case No. 33. 4

Petitioners were included in the Third Amended Complaint on the strength of the following allegations:

14. Defendants Eduardo Cojuangco, Jr., Edgardo J. Angara, Jose C. Concepcion, Teodoro Regala, Avelino V. Cruz, Rogelio A. Vinluan, Eduardo U. Escueta, Paraja G. Hayudini and Raul Roco of the Angara Concepcion Cruz Regala and Abello law offices (ACCRA) plotted, devised, schemed conspired and confederated with each other in setting up, through the use of the coconut levy funds, the financial and corporate framework and structures that led to the establishment of UCPB, UNICOM, COCOLIFE, COCOMARK, CIC, and more than twenty other coconut levy funded corporations, including the acquisition of San Miguel Corporation shares and its institutionalization through presidential directives of the coconut monopoly. Through insidious means and machinations, ACCRA, being the wholly-owned investment arm, ACCRA Investments Corporation, became the holder of approximately fifteen million shares representing roughly 3.3% of the total outstanding capital stock of UCPB as of 31 March 1987. This ranks ACCRA Investments Corporation number 44 among the top 100 biggest stockholders of UCPB which has approximately 1,400,000 shareholders. On the other hand, corporate books show the name Edgardo J. Angara as holding approximately 3,744 shares as of February, 1984. 5

In their answer to the Expanded Amended Complaint, petitioners ACCRA lawyers alleged that:

4.4 Defendants-ACCRA lawyers' participation in the acts with which their codefendants are charged, was in furtherance of legitimate lawyering.

4.4.1 In the course of rendering professional and legal services to clients, defendants-ACCRA lawyers, Jose C. Concepcion, Teodoro D. Regala, Rogelio A. Vinluan and Eduardo U. Escueta, became

holders of shares of stock in the corporations listed under their respective names in Annex "A" of the expanded Amended Complaint as incorporating or acquiring stockholders only and, as such, they do not claim any proprietary interest in the said shares of stock.

4.5 Defendant ACCRA-lawyer Avelino V. Cruz was one of the incorporators in 1976 of Mermaid Marketing Corporation, which was organized for legitimate business purposes not related to the allegations of the expanded Amended Complaint. However, he has long ago transferred any material interest therein and therefore denies that the "shares" appearing in his name in Annex "A" of the expanded Amended Complaint are his assets. 6

Petitioner Paraja Hayudini, who had separated from ACCRA law firm, filed a separate answer denying the allegations in the complaint implicating him in the alleged ill-gotten wealth. 7

Petitioners ACCRA lawyers subsequently filed their "COMMENT AND/OR OPPOSITION" dated October 8, 1991 with Counter-Motion that respondent PCGG similarly grant the same treatment to them (exclusion as parties-defendants) as accorded private respondent Roco. 8 The Counter-Motion for dropping petitioners from the complaint was duly set for hearing on October 18, 1991 in accordance with the requirements of Rule 15 of the Rules of Court.

In its "Comment," respondent PCGG set the following conditions precedent for the exclusion of petitioners, namely: (a) the disclosure of the identity of its clients; (b) submission of documents substantiating the lawyer-client relationship; and (c) the submission of the deeds of assignments petitioners executed in favor of its client covering their respective shareholdings. 9

Consequently, respondent PCGG presented supposed proof to substantiate compliance by private respondent Roco of the conditions precedent to warrant the latter's exclusion as party-defendant in PCGG Case No. 33, to wit: (a) Letter to respondent PCGG of the counsel of respondent Roco dated May 24, 1989 reiterating a previous request for reinvestigation by the PCGG in PCGG Case No. 33; (b) Affidavit dated March 8, 1989 executed by private respondent Roco as Attachment to the letter aforestated in (a); and (c) Letter of the Roco, Bunag, and Kapunan Law Offices dated September 21, 1988 to the respondent PCGG in behalf of private respondent Roco originally requesting the reinvestigation and/or re-examination of the evidence of the PCGG against Roco in its Complaint in PCGG Case No. 33. 10

It is noteworthy that during said proceedings, private respondent Roco did not refute petitioners' contention that he did actually not reveal the identity of the client involved in PCGG Case No. 33, nor had he undertaken to reveal the identity of the client for whom he acted as nominee-stockholder. 11

On March 18, 1992, respondent Sandiganbayan promulgated the Resolution, herein questioned, denying the exclusion of petitioners in PCGG Case No. 33, for their refusal to comply with the conditions required by respondent PCGG. It held:

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ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted, i.e. their principal, and that will be their choice. But until they do identify their clients, considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot excuse themselves from the consequences of their acts until they have begun to establish the basis for recognizing the privilege; the existence andidentity of the client.

This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein.

5. The PCGG is satisfied that defendant Roco has demonstrated his agency and that Roco has apparently identified his principal, which revelation could show the lack of cause against him. This in turn has allowed the PCGG to exercise its power both under the rules of Agency and under Section 5 of E.O. No. 14-A in relation to the Supreme Court's ruling in Republic v. Sandiganbayan (173 SCRA 72).

The PCGG has apparently offered to the ACCRA lawyers the same conditions availed of by Roco; full disclosure in exchange for exclusion from these proceedings (par. 7, PCGG's COMMENT dated November 4, 1991). The ACCRA lawyers have preferred not to make the disclosures required by the PCGG.

The ACCRA lawyers cannot, therefore, begrudge the PCGG for keeping them as party defendants. In the same vein, they cannot compel the PCGG to be accorded the same treatment accorded to Roco.

Neither can this Court.

WHEREFORE, the Counter Motion dated October 8, 1991 filed by the ACCRA lawyers and joined in by Atty. Paraja G. Hayudini for the same treatment by the PCGG as accorded to Raul S. Roco is DENIED for lack of merit. 12

ACCRA lawyers moved for a reconsideration of the above resolution but the same was denied by the respondent Sandiganbayan. Hence, the ACCRA lawyers filed the petition for certiorari, docketed as G.R. No. 105938, invoking the following grounds:

I

The Honorable Sandiganbayan gravely abused its discretion in subjecting petitioners ACCRA lawyers who undisputably acted as lawyers in serving as nominee-stockholders, to the strict application of the law of agency.

II

The Honorable Sandiganbayan committed grave abuse of discretion in not considering petitioners ACCRA lawyers and Mr. Roco as similarly situated and, therefore, deserving of equal treatment.

1. There is absolutely no evidence that Mr. Roco had revealed, or had undertaken to reveal, the identities of the client(s) for whom he acted as nominee-stockholder.

2. Even assuming that Mr. Roco had revealed, or had undertaken to reveal, the identities of the client(s), the disclosure does not constitute a substantial distinction as would make the classification reasonable under the equal protection clause.

3. Respondent Sandiganbayan sanctioned favoritism and undue preference in favor of Mr. Roco in violation of the equal protection clause.

III

The Honorable Sandiganbayan committed grave abuse of discretion in not holding that, under the facts of this case, the attorney-client privilege prohibits petitioners ACCRA lawyers from revealing the identity of their client(s) and the other information requested by the PCGG.

1. Under the peculiar facts of this case, the attorney-client privilege includes the identity of the client(s).

2. The factual disclosures required by the PCGG are not limited to the identity of petitioners ACCRA lawyers' alleged client(s) but extend to

other privileged matters.

IV

The Honorable Sandiganbayan committed grave abuse of discretion in not requiring that the dropping of party-defendants by the PCGG must be based on reasonable and just grounds and with due consideration to the constitutional right of petitioners ACCRA lawyers to the equal protection of the law.

Petitioner Paraja G. Hayudini, likewise, filed his own motion for reconsideration of the March 18, 1991 resolution which was denied by respondent Sandiganbayan. Thus, he filed a separate petition for certiorari, docketed as G.R. No. 108113, assailing respondent Sandiganbayan's resolution on essentially the same grounds averred by petitioners in G.R. No. 105938.

Petitioners contend that the exclusion of respondent Roco as party-defendant in PCGG Case No. 33 grants him a favorable treatment, on the pretext of his alleged undertaking to divulge the identity of his client, giving him an advantage over them who are in the same footing as partners in the ACCRA law firm. Petitioners further argue that even granting that such an undertaking has been assumed by private respondent Roco, they are prohibited from revealing the identity of their principal under their sworn mandate and fiduciary duty as lawyers to uphold at all times the confidentiality of information obtained during such lawyer-client relationship.

Respondent PCGG, through its counsel, refutes petitioners' contention, alleging that the revelation of the identity of the client is not within the ambit of the lawyer-client confidentiality privilege, nor are the documents it required (deeds of assignment) protected, because they are evidence of nominee status. 13

In his comment, respondent Roco asseverates that respondent PCGG acted correctly in excluding him as party-defendant because he "(Roco) has not filed an Answer. PCGG had therefore the right to dismiss Civil Case No.0033 as to Roco 'without an order of court by filing a notice of dismissal'," 14 and he has undertaken to identify his principal. 15

Petitioners' contentions are impressed with merit.

I

It is quite apparent that petitioners were impleaded by the PCGG as co-defendants to force them to disclose the identity of their clients. Clearly, respondent PCGG is not after petitioners but the "bigger fish" as they say in street parlance. This ploy is quite clear from the PCGG's willingness to cut a deal with petitioners — the names of their clients in exchange for exclusion from the complaint. The statement of the Sandiganbayan in its questioned resolution dated March 18, 1992 is explicit:

ACCRA lawyers may take the heroic stance of not revealing the identity of the client for whom they have acted, i.e, their principal, and that will be their choice. But until they do identify their clients, considerations of whether or not the privilege claimed by the ACCRA lawyers exists cannot even begin to be debated. The ACCRA lawyers cannot excuse themselves from the consequences

of their acts until they have begun to establish the basis for recognizing the privilege; the existence and identity of the client.

This is what appears to be the cause for which they have been impleaded by the PCGG as defendants herein. (Emphasis ours)

In a closely related case, Civil Case No. 0110 of the Sandiganbayan, Third Division, entitled "Primavera Farms, Inc., et al. vs. Presidential Commission on Good Government" respondent PCGG, through counsel Mario Ongkiko, manifested at the hearing on December 5, 1991 that the PCGG wanted to establish through the ACCRA that their "so called client is Mr. Eduardo Cojuangco;" that "it was Mr. Eduardo Cojuangco who furnished all the monies to those subscription payments in corporations included in Annex "A" of the Third Amended Complaint; that the ACCRA lawyers executed deeds of trust and deeds of assignment, some in the name of particular persons; some in blank.

We quote Atty. Ongkiko:

ATTY. ONGKIKO:

With the permission of this Hon. Court. I propose to establish through these ACCRA lawyers that, one, their so-called client is Mr. Eduardo Cojuangco. Second, it was Mr. Eduardo Cojuangco who furnished all the monies to these subscription payments of these corporations who are now the petitioners in this case. Third, that these lawyers executed deeds of trust, some in the name of a particular person, some in blank. Now, these blank deeds are important to our claim that some of the shares are actually being held by the nominees for the late President Marcos. Fourth, they also executed deeds of assignment and some of these assignments have also blank assignees. Again, this is important to our claim that some of the shares are for Mr. Conjuangco and some are for Mr. Marcos. Fifth, that most of thes e corporations are really just paper corporations. Why do we say that? One: There are no really fixed sets of officers, no fixed sets of directors at the time of incorporation and even up to 1986, which is the crucial year. And not only that, they have no permits from the municipal authorities in Makati. Next, actually all their addresses now are care of Villareal Law Office. They really have no address on records. These are some of the principal things that we would ask of these nominees stockholders, as they called themselves. 16

It would seem that petitioners are merely standing in for their clients as defendants in the complaint. Petitioners are being prosecuted solely on the basis of activities and services performed in the course of their duties as lawyers. Quite obviously, petitioners' inclusion as co-defendants in the complaint is merely being used as leverage to compel them to name their clients and consequently to enable the PCGG to nail these clients. Such being the case, respondent PCGG has no

valid cause of action as against petitioners and should exclude them from the Third Amended Complaint.

II

The nature of lawyer-client relationship is premised on the Roman Law concepts of locatio conductio operarum(contract of lease of services) where one person lets his services and another hires them without reference to the object of which the services are to be performed, wherein lawyers' services may be compensated by honorariumor for hire, 17 and mandato (contract of agency) wherein a friend on whom reliance could be placed makes a contract in his name, but gives up all that he gained by the contract to the person who requested him. 18 But the lawyer-client relationship is more than that of the principal-agent and lessor-lessee.

In modern day perception of the lawyer-client relationship, an attorney is more than a mere agent or servant, because he possesses special powers of trust and confidence reposed on him by his client. 19 A lawyer is also as independent as the judge of the court, thus his powers are entirely different from and superior to those of an ordinary agent.20 Moreover, an attorney also occupies what may be considered as a "quasi-judicial office" since he is in fact an officer of the Court 21 and exercises his judgment in the choice of courses of action to be taken favorable to his client.

Thus, in the creation of lawyer-client relationship, there are rules, ethical conduct and duties that breathe life into it, among those, the fiduciary duty to his client which is of a very delicate, exacting and confidential character, requiring a very high degree of fidelity and good faith, 22 that is required by reason of necessity and public interest 23based on the hypothesis that abstinence from seeking legal advice in a good cause is an evil which is fatal to the administration of justice. 24

It is also the strict sense of fidelity of a lawyer to his client that distinguishes him from any other professional in society. This conception is entrenched and embodies centuries of established and stable tradition. 25 In Stockton v. Ford, 26 the U. S. Supreme Court held:

There are few of the business relations of life involving a higher trust and confidence than that of attorney and client, or generally speaking, one more honorably and faithfully discharged; few more anxiously guarded by the law, or governed by the sterner principles of morality and justice; and it is the duty of the court to administer them in a corresponding spirit, and to be watchful and industrious, to see that confidence thus reposed shall not be used to the detriment or prejudice of the rights of the party bestowing it. 27

In our jurisdiction, this privilege takes off from the old Code of Civil Procedure enacted by the Philippine Commission on August 7, 1901. Section 383 of the Code specifically "forbids counsel, without authority of his client to reveal any communication made by the client to him or his advice given thereon in the course of professional employment." 28 Passed on into various provisions of the Rules of Court, the attorney-client privilege, as currently worded provides:

Sec. 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases:

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An attorney cannot, without the consent of his client, be examined as to any communication made by the client to him, or his advice given thereon in the course of, or with a view to, professional employment, can an attorney's secretary, stenographer, or clerk be examined, without the consent of the client and his employer, concerning any fact the knowledge of which has been acquired in such capacity. 29

Further, Rule 138 of the Rules of Court states:

Sec. 20. It is the duty of an attorney: (e) to maintain inviolate the confidence, and at every peril to himself, to preserve the secrets of his client, and to accept no compensation in connection with his client's business except from him or with his knowledge and approval.

This duty is explicitly mandated in Canon 17 of the Code of Professional Responsibility which provides that:

Canon 17. A lawyer owes fidelity to the cause of his client and he shall be mindful of the trust and confidence reposed in him.

Canon 15 of the Canons of Professional Ethics also demands a lawyer's fidelity to client:

The lawyers owes "entire devotion to the interest of the client, warm zeal in the maintenance and defense of his rights and the exertion of his utmost learning and ability," to the end that nothing be taken or be withheld from him, save by the rules of law, legally applied. No fear of judicial disfavor or public popularity should restrain him from the full discharge of his duty. In the judicial forum the client is entitled to the benefit of any and every remedy and defense that is authorized by the law of the land, and he may expect his lawyer to assert every such remedy or defense. But it is steadfastly to be borne in mind that the great trust of the lawyer is to be performed within and not without the bounds of the law. The office of attorney does not permit, much less does it demand of him for any client, violation of law or any manner of fraud or chicanery. He must obey his own conscience and not that of his client.

Considerations favoring confidentially in lawyer-client relationships are many and serve several constitutional and policy concerns. In the constitutional sphere, the privilege gives flesh to one of the most sacrosanct rights available to the accused, the right to counsel. If a client were made to choose between legal representation without effective communication and disclosure and legal representation with all his secrets

revealed then he might be compelled, in some instances, to either opt to stay away from the judicial system or to lose the right to counsel. If the price of disclosure is too high, or if it amounts to self incrimination, then the flow of information would be curtailed thereby rendering the right practically nugatory. The threat this represents against another sacrosanct individual right, the right to be presumed innocent is at once self-evident.

Encouraging full disclosure to a lawyer by one seeking legal services opens the door to a whole spectrum of legal options which would otherwise be circumscribed by limited information engendered by a fear of disclosure. An effective lawyer-client relationship is largely dependent upon the degree of confidence which exists between lawyer and client which in turn requires a situation which encourages a dynamic and fruitful exchange and flow of information. It necessarily follows that in order to attain effective representation, the lawyer must invoke the privilege not as a matter of option but as a matter of duty and professional responsibility.

The question now arises whether or not this duty may be asserted in refusing to disclose the name of petitioners' client(s) in the case at bar. Under the facts and circumstances obtaining in the instant case, the answer must be in the affirmative.

As a matter of public policy, a client's identity should not be shrouded in mystery 30 Under this premise, the general rule in our jurisdiction as well as in the United States is that a lawyer may not invoke the privilege and refuse to divulge the name or identity of this client. 31

The reasons advanced for the general rule are well established.

First, the court has a right to know that the client whose privileged information is sought to be protected is flesh and blood.

Second, the privilege begins to exist only after the attorney-client relationship has been established. The attorney-client privilege does not attach until there is a client.

Third, the privilege generally pertains to the subject matter of the relationship.

Finally, due process considerations require that the opposing party should, as a general rule, know his adversary. "A party suing or sued is entitled to know who his opponent is." 32 He cannot be obliged to grope in the dark against unknown forces. 33

Notwithstanding these considerations, the general rule is however qualified by some important exceptions.

1) Client identity is privileged where a strong probability exists that revealing the client's name would implicate that client in the very activity for which he sought the lawyer's advice.

In Ex-Parte Enzor, 34 a state supreme court reversed a lower court order requiring a lawyer to divulge the name of her client on the ground that the subject matter of the relationship was so closely related to the issue of the client's identity that the privilege actually attached to both. In Enzor, the unidentified client, an election official, informed his attorney in confidence that he had been offered a bribe to violate election laws or that he had accepted a bribe to that end. In her testimony, the attorney revealed that she had advised her client to count the votes correctly, but averred that she could not remember whether her client had been, in fact, bribed. The lawyer was cited for contempt for her refusal to reveal his client's identity

before a grand jury. Reversing the lower court's contempt orders, the state supreme court held that under the circumstances of the case, and under the exceptions described above, even the name of the client was privileged.

U .S. v. Hodge and Zweig, 35 involved the same exception, i.e. that client identity is privileged in those instances where a strong probability exists that the disclosure of the client's identity would implicate the client in the very criminal activity for which the lawyer's legal advice was obtained.

The Hodge case involved federal grand jury proceedings inquiring into the activities of the "Sandino Gang," a gang involved in the illegal importation of drugs in the United States. The respondents, law partners, represented key witnesses and suspects including the leader of the gang, Joe Sandino.

In connection with a tax investigation in November of 1973, the IRS issued summons to Hodge and Zweig, requiring them to produce documents and information regarding payment received by Sandino on behalf of any other person, and vice versa. The lawyers refused to divulge the names. The Ninth Circuit of the United States Court of Appeals, upholding non-disclosure under the facts and circumstances of the case, held:

A client's identity and the nature of that client's fee arrangements may be privileged where the person invoking the privilege can show that a strong probability exists that disclosure of such information would implicate that client in the very criminal activity for which legal advice was sought Baird v.Koerner, 279 F. 2d at 680. While in Baird Owe enunciated this rule as a matter of California law, the rule also reflects federal law. Appellants contend that the Baird exception applies to this case.

The Baird exception is entirely consonant with the principal policy behind the attorney-client privilege. "In order to promote freedom of consultation of legal advisors by clients, the apprehension of compelled disclosure from the legal advisors must be removed; hence, the law must prohibit such disclosure except on the client's consent." 8 J. Wigmore, supra sec. 2291, at 545. In furtherance of this policy, the client's identity and the nature of his fee arrangements are, in exceptional cases, protected as confidential communications. 36

2) Where disclosure would open the client to civil liability; his identity is privileged. For instance, the peculiar facts and circumstances of Neugass v. Terminal Cab Corporation, 37 prompted the New York Supreme Court to allow a lawyer's claim to the effect that he could not reveal the name of his client because this would expose the latter to civil litigation.

In the said case, Neugass, the plaintiff, suffered injury when the taxicab she was riding, owned by respondent corporation, collided with a second taxicab, whose owner was unknown. Plaintiff brought action both against defendant corporation and the owner of the second cab, identified in the information only as John Doe. It turned out that when the attorney of defendant corporation appeared on preliminary examination, the fact was somehow revealed that the lawyer came to know the name of the owner of the second cab when a man, a client of the

insurance company, prior to the institution of legal action, came to him and reported that he was involved in a car accident. It was apparent under the circumstances that the man was the owner of the second cab. The state supreme court held that the reports were clearly made to the lawyer in his professional capacity. The court said:

That his employment came about through the fact that the insurance company had hired him to defend its policyholders seems immaterial. The attorney is such cases is clearly the attorney for the policyholder when the policyholder goes to him to report an occurrence contemplating that it would be used in an action or claim against him. 38

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All communications made by a client to his counsel, for the purpose of professional advice or assistance, are privileged, whether they relate to a suit pending or contemplated, or to any other matter proper for such advice or aid; . . . And whenever the communication made, relates to a matter so connected with the employment as attorney or counsel as to afford presumption that it was the ground of the address by the client, then it is privileged from disclosure. . .

It appears . . . that the name and address of the owner of the second cab came to the attorney in this case as a confidential communication. His client is not seeking to use the courts, and his address cannot be disclosed on that theory, nor is the present action pending against him as service of the summons on him has not been effected. The objections on which the court reserved decision are sustained. 39

In the case of Matter of Shawmut Mining Company, 40 the lawyer involved was required by a lower court to disclose whether he represented certain clients in a certain transaction. The purpose of the court's request was to determine whether the unnamed persons as interested parties were connected with the purchase of properties involved in the action. The lawyer refused and brought the question to the State Supreme Court. Upholding the lawyer's refusal to divulge the names of his clients the court held:

If it can compel the witness to state, as directed by the order appealed from, that he represented certain persons in the purchase or sale of these mines, it has made progress in establishing by such evidence their version of the litigation. As already suggested, such testimony by the witness would compel him to disclose not only that he was attorney for certain people, but that, as the result of communications made to him in the course of such employment as such attorney, he knew that they were interested in certain transactions. We feel sure that under such conditions no case has ever gone to the length of compelling an attorney, at the instance of a hostile litigant,

to disclose not only his retainer, but the nature of the transactions to which it related, when such information could be made the basis of a suit against his client. 41

3) Where the government's lawyers have no case against an attorney's client unless, by revealing the client's name, the said name would furnish the only link that would form the chain of testimony necessary to convict an individual of a crime, the client's name is privileged.

In Baird vs. Korner, 42 a lawyer was consulted by the accountants and the lawyer of certain undisclosed taxpayers regarding steps to be taken to place the undisclosed taxpayers in a favorable position in case criminal charges were brought against them by the U.S. Internal Revenue Service (IRS).

It appeared that the taxpayers' returns of previous years were probably incorrect and the taxes understated. The clients themselves were unsure about whether or not they violated tax laws and sought advice from Baird on the hypothetical possibility that they had. No investigation was then being undertaken by the IRS of the taxpayers. Subsequently, the attorney of the taxpayers delivered to Baird the sum of $12, 706.85, which had been previously assessed as the tax due, and another amount of money representing his fee for the advice given. Baird then sent a check for $12,706.85 to the IRS in Baltimore, Maryland, with a note explaining the payment, but without naming his clients. The IRS demanded that Baird identify the lawyers, accountants, and other clients involved. Baird refused on the ground that he did not know their names, and declined to name the attorney and accountants because this constituted privileged communication. A petition was filed for the enforcement of the IRS summons. For Baird's repeated refusal to name his clients he was found guilty of civil contempt. The Ninth Circuit Court of Appeals held that, a lawyer could not be forced to reveal the names of clients who employed him to pay sums of money to the government voluntarily in settlement of undetermined income taxes, unsued on, and with no government audit or investigation into that client's income tax liability pending. The court emphasized the exception that a client's name is privileged when so much has been revealed concerning the legal services rendered that the disclosure of the client's identity exposes him to possible investigation and sanction by government agencies. The Court held:

The facts of the instant case bring it squarely within that exception to the general rule. Here money was received by the government, paid by persons who thereby admitted they had not paid a sufficient amount in income taxes some one or more years in the past. The names of the clients are useful to the government for but one purpose — to ascertain which taxpayers think they were delinquent, so that it may check the records for that one year or several years. The voluntary nature of the payment indicates a belief by the taxpayers that more taxes or interest or penalties are due than the sum previously paid, if any. It indicates a feeling of guilt for nonpayment of taxes, though whether it is criminal guilt is undisclosed. But it may well be the link that could form the chain of testimony necessary to convict an individual of a federal crime. Certainly the payment and the feeling of

guilt are the reasons the attorney here involved was employed — to advise his clients what, under the circumstances, should be done. 43

Apart from these principal exceptions, there exist other situations which could qualify as exceptions to the general rule.

For example, the content of any client communication to a lawyer lies within the privilege if it is relevant to the subject matter of the legal problem on which the client seeks legal assistance. 44 Moreover, where the nature of the attorney-client relationship has been previously disclosed and it is the identity which is intended to be confidential, the identity of the client has been held to be privileged, since such revelation would otherwise result in disclosure of the entire transaction. 45

Summarizing these exceptions, information relating to the identity of a client may fall within the ambit of the privilege when the client's name itself has an independent significance, such that disclosure would then reveal client confidences. 46

The circumstances involving the engagement of lawyers in the case at bench, therefore, clearly reveal that the instant case falls under at least two exceptions to the general rule. First, disclosure of the alleged client's name would lead to establish said client's connection with the very fact in issue of the case, which is privileged information, because the privilege, as stated earlier, protects the subject matter or the substance (without which there would be not attorney-client relationship).

The link between the alleged criminal offense and the legal advice or legal service sought was duly establishes in the case at bar, by no less than the PCGG itself. The key lies in the three specific conditions laid down by the PCGG which constitutes petitioners' ticket to non-prosecution should they accede thereto:

(a) the disclosure of the identity of its clients;

(b) submission of documents substantiating the lawyer-client relationship; and

(c) the submission of the deeds of assignment petitioners executed in favor of their clients covering their respective shareholdings.

From these conditions, particularly the third, we can readily deduce that the clients indeed consulted the petitioners, in their capacity as lawyers, regarding the financial and corporate structure, framework and set-up of the corporations in question. In turn, petitioners gave their professional advice in the form of, among others, the aforementioned deeds of assignment covering their client's shareholdings.

There is no question that the preparation of the aforestated documents was part and parcel of petitioners' legal service to their clients. More important, it constituted an integral part of their duties as lawyers. Petitioners, therefore, have a legitimate fear that identifying their clients would implicate them in the very activity for which legal advice had been sought, i.e., the alleged accumulation of ill-gotten wealth in the aforementioned corporations.

Furthermore, under the third main exception, revelation of the client's name would obviously provide the necessary link for the prosecution to build its case, where none otherwise exists. It is

the link, in the words of Baird, "that would inevitably form the chain of testimony necessary to convict the (client) of a . . . crime." 47

An important distinction must be made between a case where a client takes on the services of an attorney for illicit purposes, seeking advice about how to go around the law for the purpose of committing illegal activities and a case where a client thinks he might have previously committed something illegal and consults his attorney about it. The first case clearly does not fall within the privilege because the same cannot be invoked for purposes illegal. The second case falls within the exception because whether or not the act for which the client sought advice turns out to be illegal, his name cannot be used or disclosed if the disclosure leads to evidence, not yet in the hands of the prosecution, which might lead to possible action against him.

These cases may be readily distinguished, because the privilege cannot be invoked or used as a shield for an illegal act, as in the first example; while the prosecution may not have a case against the client in the second example and cannot use the attorney client relationship to build up a case against the latter. The reason for the first rule is that it is not within the professional character of a lawyer to give advice on the commission of a crime.48 The reason for the second has been stated in the cases above discussed and are founded on the same policy grounds for which the attorney-client privilege, in general, exists.

In Matter of Shawmut Mining Co., supra, the appellate court therein stated that "under such conditions no case has ever yet gone to the length of compelling an attorney, at the instance of a hostile litigant, to disclose not only his retainer, but the nature of the transactions to which it related, when such information could be made the basis of a suit against his client." 49 "Communications made to an attorney in the course of any personal employment, relating to the subject thereof, and which may be supposed to be drawn out in consequence of the relation in which the parties stand to each other, are under the seal of confidence and entitled to protection as privileged communications." 50 Where the communicated information, which clearly falls within the privilege, would suggest possible criminal activity but there would be not much in the information known to the prosecution which would sustain a charge except that revealing the name of the client would open up other privileged information which would substantiate the prosecution's suspicions, then the client's identity is so inextricably linked to the subject matter itself that it falls within the protection. The Baird exception, applicable to the instant case, is consonant with the principal policy behind the privilege, i.e., that for the purpose of promoting freedom of consultation of legal advisors by clients, apprehension of compelled disclosure from attorneys must be eliminated. This exception has likewise been sustained in In re Grand Jury Proceedings 51 and Tillotson v. Boughner. 52 What these cases unanimously seek to avoid is the exploitation of the general rule in what may amount to a fishing expedition by the prosecution.

There are, after all, alternative source of information available to the prosecutor which do not depend on utilizing a defendant's counsel as a convenient and readily available source of information in the building of a case against the latter. Compelling disclosure of the client's name in circumstances such as the one which exists in the case at bench amounts to sanctioning fishing expeditions by lazy prosecutors and litigants which we cannot and will not countenance. When the nature of the transaction would be revealed by disclosure of an attorney's

retainer, such retainer is obviously protected by the privilege. 53 It follows that petitioner attorneys in the instant case owe their client(s) a duty and an obligation not to disclose the latter's identity which in turn requires them to invoke the privilege.

In fine, the crux of petitioners' objections ultimately hinges on their expectation that if the prosecution has a case against their clients, the latter's case should be built upon evidence painstakingly gathered by them from their own sources and not from compelled testimony requiring them to reveal the name of their clients, information which unavoidably reveals much about the nature of the transaction which may or may not be illegal. The logical nexus between name and nature of transaction is so intimate in this case the it would be difficult to simply dissociate one from the other. In this sense, the name is as much "communication" as information revealed directly about the transaction in question itself, a communication which is clearly and distinctly privileged. A lawyer cannot reveal such communication without exposing himself to charges of violating a principle which forms the bulwark of the entire attorney-client relationship.

The uberrimei fidei relationship between a lawyer and his client therefore imposes a strict liability for negligence on the former. The ethical duties owing to the client, including confidentiality, loyalty, competence, diligence as well as the responsibility to keep clients informed and protect their rights to make decisions have been zealously sustained. In Milbank, Tweed, Hadley and McCloy v. Boon, 54 the US Second District Court rejected the plea of the petitioner law firm that it breached its fiduciary duty to its client by helping the latter's former agent in closing a deal for the agent's benefit only after its client hesitated in proceeding with the transaction, thus causing no harm to its client. The Court instead ruled that breaches of a fiduciary relationship in any context comprise a special breed of cases that often loosen normally stringent requirements of causation and damages, and found in favor of the client.

To the same effect is the ruling in Searcy, Denney, Scarola, Barnhart, and Shipley P.A. v. Scheller 55 requiring strict obligation of lawyers vis-a-vis clients. In this case, a contingent fee lawyer was fired shortly before the end of completion of his work, and sought payment quantum meruit of work done. The court, however, found that the lawyer was fired for cause after he sought to pressure his client into signing a new fee agreement while settlement negotiations were at a critical stage. While the client found a new lawyer during the interregnum, events forced the client to settle for less than what was originally offered. Reiterating the principle of fiduciary duty of lawyers to clients in Meinhard v. Salmon 56 famously attributed to Justice Benjamin Cardozo that "Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior," the US Court found that the lawyer involved was fired for cause, thus deserved no attorney's fees at all.

The utmost zeal given by Courts to the protection of the lawyer-client confidentiality privilege and lawyer's loyalty to his client is evident in the duration of the protection, which exists not only during the relationship, but extends even after the termination of the relationship. 57

Such are the unrelenting duties required by lawyers vis-a-vis their clients because the law, which the lawyers are sworn to uphold, in the words of Oliver Wendell Holmes, 58 ". . . is an exacting goddess, demanding of her votaries in intellectual and moral discipline." The Court, no less, is not prepared to accept

respondents' position without denigrating the noble profession that is lawyering, so extolled by Justice Holmes in this wise:

Every calling is great when greatly pursued. But what other gives such scope to realize the spontaneous energy of one's soul? In what other does one plunge so deep in the stream of life — so share its passions its battles, its despair, its triumphs, both as witness and actor? . . . But that is not all. What a subject is this in which we are united — this abstraction called the Law, wherein as in a magic mirror, we see reflected, not only in our lives, but the lives of all men that have been. When I think on this majestic theme my eyes dazzle. If we are to speak of the law as our mistress, we who are here know that she is a mistress only to be won with sustained and lonely passion — only to be won by straining all the faculties by which man is likened to God.

We have no choice but to uphold petitioners' right not to reveal the identity of their clients under pain of the breach of fiduciary duty owing to their clients, because the facts of the instant case clearly fall within recognized exceptions to the rule that the client's name is not privileged information.

If we were to sustain respondent PCGG that the lawyer-client confidential privilege under the circumstances obtaining here does not cover the identity of the client, then it would expose the lawyers themselves to possible litigation by their clients in view of the strict fiduciary responsibility imposed on them in the exercise of their duties.

The complaint in Civil Case No. 0033 alleged that the defendants therein, including herein petitioners and Eduardo Cojuangco, Jr. conspired with each other in setting up through the use of coconut levy funds the financial and corporate framework and structures that led to the establishment of UCPB, UNICOM and others and that through insidious means and machinations, ACCRA, using its wholly-owned investment arm, ACCRA Investment Corporation, became the holder of approximately fifteen million shares representing roughly 3.3% of the total capital stock of UCPB as of 31 March 1987. The PCGG wanted to establish through the ACCRA lawyers that Mr. Cojuangco is their client and it was Cojuangco who furnished all the monies to the subscription payment; hence, petitioners acted as dummies, nominees and/or agents by allowing themselves, among others, to be used as instrument in accumulating ill-gotten wealth through government concessions, etc., which acts constitute gross abuse of official position and authority, flagrant breach of public trust, unjust enrichment, violation of the Constitution and laws of the Republic of the Philippines.

By compelling petitioners, not only to reveal the identity of their clients, but worse, to submit to the PCGG documents substantiating the client-lawyer relationship, as well as deeds of assignment petitioners executed in favor of its clients covering their respective shareholdings, the PCGG would exact from petitioners a link "that would inevitably form the chain of testimony necessary to convict the (client) of a crime."

III

In response to petitioners' last assignment of error, respondents alleged that the private respondent was dropped as party defendant not only because of his admission that he acted merely as a nominee but also because of his undertaking to testify to such facts and circumstances "as the interest of truth may require, which includes . . . the identity of the principal." 59

First, as to the bare statement that private respondent merely acted as a lawyer and nominee, a statement made in his out-of-court settlement with the PCGG, it is sufficient to state that petitioners have likewise made the same claim not merely out-of-court but also in the Answer to plaintiff's Expanded Amended Complaint, signed by counsel, claiming that their acts were made in furtherance of "legitimate lawyering." 60 Being "similarly situated" in this regard, public respondents must show that there exist other conditions and circumstances which would warrant their treating the private respondent differently from petitioners in the case at bench in order to evade a violation of the equal protection clause of the Constitution.

To this end, public respondents contend that the primary consideration behind their decision to sustain the PCGG's dropping of private respondent as a defendant was his promise to disclose the identities of the clients in question. However, respondents failed to show — and absolute nothing exists in the records of the case at bar — that private respondent actually revealed the identity of his client(s) to the PCGG. Since the undertaking happens to be the leitmotif of the entire arrangement between Mr. Roco and the PCGG, an undertaking which is so material as to have justified PCGG's special treatment exempting the private respondent from prosecution, respondent Sandiganbayan should have required proof of the undertaking more substantial than a "bare assertion" that private respondent did indeed comply with the undertaking. Instead, as manifested by the PCGG, only three documents were submitted for the purpose, two of which were mere requests for re-investigation and one simply disclosed certain clients which petitioners (ACCRA lawyers) were themselves willing to reveal. These were clients to whom both petitioners and private respondent rendered legal services while all of them were partners at ACCRA, and were not the clients which the PCGG wanted disclosed for the alleged questioned transactions. 61

To justify the dropping of the private respondent from the case or the filing of the suit in the respondent court without him, therefore, the PCGG should conclusively show that Mr. Roco was treated as species apart from the rest of the ACCRA lawyers on the basis of a classification which made substantial distinctions based on real differences. No such substantial distinctions exist from the records of the case at bench, in violation of the equal protection clause.

The equal protection clause is a guarantee which provides a wall of protection against uneven application of status and regulations. In the broader

sense, the guarantee operates against uneven application of legal norms sothat all persons under similar circumstances would be accorded the same treatment. 62 Those who fall within a particular class ought to be treated alike not only as to privileges granted but also as to the liabilities imposed.

. . . What is required under this constitutional guarantee is the uniform operation of legal norms so that all persons under similar circumstances would be accorded the same treatment both in the privileges conferred and the liabilities imposed. As was noted in a recent decision: "Favoritism and undue preference cannot be allowed. For the principle is that equal protection and security shall be given to every person under circumstances, which if not identical are analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding the rest. 63

We find that the condition precedent required by the respondent PCGG of the petitioners for their exclusion as parties-defendants in PCGG Case No. 33 violates the lawyer-client confidentiality privilege. The condition also constitutes a transgression by respondents Sandiganbayan and PCGG of the equal protection clause of the Constitution. 64 It is grossly unfair to exempt one similarly situated litigant from prosecution without allowing the same exemption to the others. Moreover, the PCGG's demand not only touches upon the question of the identity of their clients but also on documents related to the suspected transactions, not only in violation of the attorney-client privilege but also of the constitutional right against self-incrimination. Whichever way one looks at it, this is a fishing expedition, a free ride at the expense of such rights.

An argument is advanced that the invocation by petitioners of the privilege of attorney-client confidentiality at this stage of the proceedings is premature and that they should wait until they are called to testify and examine as witnesses as to matters learned in confidence before they can raise their objections. But petitioners are not mere witnesses. They are co-principals in the case for recovery of alleged ill-gotten wealth. They have made their position clear from the very beginning that they are not willing to testify and they cannot be compelled to testify in view of their constitutional right against self-incrimination and of their fundamental legal right to maintain inviolate the privilege of attorney-client confidentiality.

It is clear then that the case against petitioners should never be allowed to take its full course in the Sandiganbayan. Petitioners should not be made to suffer the effects of further litigation when it is obvious that their inclusion in the complaint arose from a privileged attorney-client relationship and as a means of coercing them to disclose the identities of their

clients. To allow the case to continue with respect to them when this Court could nip the problem in the bud at this early opportunity would be to sanction an unjust situation which we should not here countenance. The case hangs as a real and palpable threat, a proverbial Sword of Damocles over petitioners' heads. It should not be allowed to continue a day longer.

While we are aware of respondent PCGG's legal mandate to recover ill-gotten wealth, we will not sanction acts which violate the equal protection guarantee and the right against self-incrimination and subvert the lawyer-client confidentiality privilege.

WHEREFORE, IN VIEW OF THE FOREGOING, the Resolutions of respondent Sandiganbayan (First Division) promulgated on March 18, 1992 and May 21, 1992 are hereby ANNULLED and SET ASIDE. Respondent Sandiganbayan is further ordered to exclude petitioners Teodoro D. Regala, Edgardo J. Angara, Avelino V. Cruz, Jose C. Concepcion, Victor P. Lazatin, Eduardo U. Escueta and Paraja G. Hayuduni as parties-defendants in SB Civil Case No. 0033 entitled "Republic of the Philippines v. Eduardo Cojuangco, Jr., et al."

SO ORDERED.

G.R. No. 117740 October 30, 1998

CAROLINA ABAD GONZALES, petitioner, vs.COURT OF APPEALS, HONORIA EMPAYNADO, CECILIA H. ABAD, MARIAN H. ABAD and ROSEMARIE S. ABAD, respondents.

 

ROMERO, J.:

Before us is a petition for certiorari to annul the decision of the Court of Appeals dated October 19, 1994, finding private respondents as the heirs of Ricardo de Mesa Abad as well as annulling petitioners' extra-judicial partition of the decedent's estate.

The facts are as follows:

On April 18, 1972, petitioners Carolina Abad Gonzales, Dolores de Mesa Abad and Cesar de Mesa Tioseco sought the settlement of the intestate estate of their brother, Ricardo de Mesa Abad, before the then Court of First Instance of Manila. In their petition, docketed as Special Proceedings No. 86792, petitioners claimed that they were the only heirs of Ricardo de Mesa Abad, as the latter allegedly died a bachelor, leaving no descendants or ascendants, whether legitimate or illegitimate. On May 9, 1972, petitioners amended their petition by alleging that the real properties covered by TCT Nos. 13530, 53671, and 64021, listed therein as belonging to the decedent, were actually only administered by the latter, the true owner being their late mother, Lucila de Mesa. On June 16, 1972, the trial court appointed Cesar de Mesa Tioseco as administrator of the intestate estate of Ricardo de Mesa Abad.

Meanwhile, on May 2, 1972, petitioners executed an extrajudicial settlement of the estate of their late mother Lucila de Mesa, copying therein the technical descriptions of the lots covered by TCT Nos. 13530, 53671, and 64021. By virtue thereof, the Register of Deeds cancelled the above-mentioned TCTs in the name of Ricardo Abad and issued, in lieu thereof, TCT No. 108482 in the name of Dolores de Mesa Abad, TCT No. 108483 in the name of Cesar de Mesa Tioseco and TCT No. 108484 in the name of Carolina Abad Gonzales. The three promptly executed real estate mortgages over the real properties in favor of Mrs. Josefina Viola, the wife of their counsel, Escolastico Viola.

On July 7, 1972, private respondents Honoria Empaynado, Cecilia Abad Empaynado, and Marian Abad Empaynado filed a motion to set aside proceedings and for leave to file opposition in Special Proceedings No. 86792. In their motion, they alleged that Honoria Empaynado had been the common-law wife of Ricardo Abad for twenty-seven years before his death, or from 1943 to 1971, and that during this period, their union had produced two children, Cecilia Abad Empaynado and Marian Abad Empaynado. Private respondents also disclosed the existence of Rosemarie Abad, a child allegedly fathered by Ricardo Abad with another woman, Dolores Saracho. As the law awards the entire estate to the surviving children to the exclusion of collateral relatives, private respondents charged petitioners with deliberately concealing the existence of said three children in other to deprive the latter of their rights to the estate of Ricardo Abad.

On July 24, 1972, private respondents filed a motion to withdraw their first motion and, in lieu thereof, filed a motion for reconsideration praying that Cecilia Abad be appointed

administrator instead of Cesar Tioseco. The trial court denied private respondents' motion to remove Cesar Tioseco as administrator, but allowed them to appear in the proceedings to establish their right as alleged heirs of Ricardo Abad.

Private respondents later discovered that petitioners had managed to cancel TCT Nos. 13530, 53671, and 64021 through the stratagem of extra-judicially partitioning their mother's estate. Accordingly, on October 4, 1973, private respondents filed a motion to annul the extra-judicial partition executed by petitioners, as well as TCT Nos. 108482, 108483, and 108484, the Torrens titles issued in substitution of TCT Nos. 13530, 53671, and 64021 and the real estate mortgages constituted by the latter on said properties.

After due trial, the lower court, on November 2, 1973, rendered the following judgment:

WHEREFORE, judgment is hereby rendered as follows:

(1) Declaring Cecilia E. Abad, Marian E. Abad and Rosemarie S. Abad acknowledged natural children of the deceased Ricardo M. Abad;

(2) Declaring said acknowledged natural children, namely: Cecilia E. Abad, Marian E. Abad, and Rosemarie S. Abad the only surviving legal heirs of the deceased Ricardo M. Abad and as such entitled to succeed to the entire estate of said deceased, subject to the rights of Honoria Empaynado, if any, as co-owner of any of the property of said estate that may have been acquired thru her joint efforts with the deceased during the period they lived together as husband and wife;

(3) Denying the petition of decedent's collateral relatives, namely: Dolores M. Abad, Cesar M. Tioseco and Carolina M. Abad to be declared as heirs and excluding them from participating in the administration and settlement of the estate of Ricardo Abad;

(4) Appointing Honoria Empaynado as the

administratrix in this intestacy with a bond of THIRTY THOUSAND (P30,000.00) PESOS; and

(5) Ordering Cesar Tioseco to surrender to the new administratrix all property or properties, monies and such papers that came into his possession by virtue of his appointment as administrator, which appointment is hereby revoked. 1

The trial court, likewise, found in favor of private respondents with respect to the latter's motion for annulment of certain documents. On November 19, 1974, it rendered the following judgment:

WHEREFORE, this Court finds oppositors' Motion for Annulment, dated October 4, 1973 to be meritorious and accordingly —

1. Declares that the six (6) parcels of land described in TCT Nos. 13530, 53671 and 64021, all registered in the name of Ricardo Abad, as replaced by TCT No. 108482 in the name of Dolores de Mesa Abad, TCT No. 108483 in the name of Cesar de Mesa Tioseco and TCT No. 108484 in the name of Carolina de Mesa Abad-Gonzales, and the residential house situated at 2432 Opalo Street, San Andres Subdivision, Manila, to be the properties of the late Ricardo Abad;

2. Declares the deed of Extra Judicial Settlement of the Estate of the Deceased Lucila de Mesa, executed on May 2, 1972 (Doc. No. 445, Page No. 86, Book No. VII, Series of 1972 of the notarial book of Faustino S. Cruz) by petitioners and Carolina de Mesa Abad-Gonzales, to be inexistent and void from the beginning;

3. Declares as null and void the cancellation of TCT Nos. 13530, 53671 and 64021 and issuance in lieu thereof, of TCT Nos. 108482, 108483 and 108484;

4. Orders the Register of Deeds of Manila to cancel TCT No. 108482 of Dolores de Mesa Abad; TCT No. 108483 of Cesar de Mesa Tioseco; and TCT No. 108484 of Carolina de Mesa Abad-Gonzales and in lieu thereof, restore and/or issue the corresponding certificate of title in the name of Ricardo Abad;

5. Declares as inexistent and void from the beginning the three (3) real estate mortgages executed on July 7, 1972 executed by (a) petitioner Dolores de Mesa Abad, identified as Doc. No. 145, Page No. 30, Book No. XX, Series of 1972, (b) petitioner Cesar de Mesa Tioseco, identified as Doc. No. 146, Page 31, Book No. XX, Series of 1972; and (c) Carolina de Mesa Abad-Gonzales, identified as Doe. No. 144, Page No. 30, Book No. XX, Series of 1972, all of the notarial book of Ricardo P. Yap of Manila, in favor of Mrs. Josefina C. Viola, and orders the Register of Deeds of Manila to cancel the registration or annotation thereof from the back of the torrens title of Ricardo Abad; and

6. Orders Atty. Escolastico R. Viola and his law associate and wife, Josefina C. Viola, to surrender to the new administratrix, Honoria Empaynado, TCT Nos. 108482, 108483, and 108484 within five (5) days from receipt hereof.

SO ORDERED. 2

Petitioners' motion for reconsideration of the November 2, 1973 decision was denied by the trial court. Their notice of appeal was likewise denied on the ground that the same had been filed out of time. Because of this ruling, petitioners, instituted certiorari and mandamus proceedings with the Court of Appeals, docketed there as C.A.-G.R. No. SP-03268-R. On November 2, 1974, the appellate court granted petitioners' petition and ordered the lower court to give due course to the latter's appeal. The trial court, however, again dismissed petitioners' appeal on the ground that their record on appeal was filed out of time.

Likewise, on January 4, 1975, petitioners filed their notice of appeal of the November 19, 1974 ruling of the trial court. On March 21, 1975, this appeal was similarly denied on the ground that it had been filed out of time.

Due to the dismissal of their two appeals, petitioners again instituted certiorari and mandamus proceedings with the Court of Appeals, docketed therein as C.A.-G.R. No. SP-04352. The appellate court affirmed the dismissal of the two appeals, prompting petitioners to appeal to the Supreme Court. On July 9, 1985, this Court directed the trial court to give due course to petitioners' appeal from the order of November 2, 1973 declaring private respondents heirs of the deceased Ricardo Abad, and the order dated November 19, 1974, annulling certain documents pertaining to the intestate estate of deceased.

The two appeals were accordingly elevated by the trial court to the appellate court. On October 19, 1994, the Court of Appeals rendered judgment as follows:

WHEREFORE, all the foregoing considered, the instant appeal is DENIED for lack of merit. The orders of the court a quo in SP No. 86792, to wit:

1. Order dated November 2, 1973, declaring in substance that Cecilia, Marian and Rosemarie, all surnamed Abad as the acknowledged natural children and the only surviving heirs of the deceased Ricardo Abad;

2. Order dated November 19, 1974, declaring in substance that the six (6) parcels of land described in TCT Nos. 13530, 53671 and 64021 are the properties of Ricardo Abad; that the extra-judicial partition of the estate of the deceased Lucila de Mesa executed on May 2, 1972 is inexistent and void from the beginning, the cancellation of the aforementioned TCTs is

null and void; the Register of Deeds be ordered to restore and/or issue the corresponding Certificates of Title in the name of Ricardo Abad; and

3. Order dated March 21, 1975 denying the appeal of Dolores de Mesa Abad and Cesar de Mesa Tioseco from the latter Order, for being filed out of time, are all AFFIRMED in toto. With costs against petitioner-appellants.

SO ORDERED. 3

Petitioners now seek to annul the foregoing judgment on the following grounds:

I. THE COURT OF APPEALS AND THE TRIAL COURT GRAVELY ERRED IN HOLDING THAT RESPONDENTS CECILIA E. ABAD, MARIAN E. ABAD AND ROSEMARIE S. ABAD ARE THE ACKNOWLEDGED NATURAL CHILDREN OF THE DECEASED RICARDO DE MESA ABAD.

II. PETITIONERS ARE ENTITLED TO THE SUBJECT ESTATE WHETHER THE SAME IS OWNED BY THE DECEASED RICARDO DE MESA ABAD OR BY LUCILA DE MESA, THE MOTHER OF PETITIONERS AND RICARDO DE MESA ABAD.

We are not persuaded.

Petitioners, in contesting Cecilia, Marian and Rosemarie Abad's filiation, submit the startling theory that the husband of Honoria Empaynado, Jose Libunao, was still alive when Cecilia and Marian Abad were born in 1948 and 1954, respectively.

It is undisputed that prior to her relationship with Ricardo Abad, Honoria Empaynado was married to Jose Libunao, their union having produced three children, Angelita, Cesar, and Maria Nina, prior to the birth of Cecilia and Marian. But while private respondents claim that Jose Libunao died in 1943, petitioners claim that the latter died sometime in 1971.

The date of Jose Libunao's death is important, for if he was still alive in 1971, and given that he was legally married to Honoria Empaynado, the presumption would be that Cecilia and Marian are not Ricardo Abad's children with the latter, but of Jose Libunao and Honoria Empaynado. Article 256, the applicable provision of the Civil Code, provides:

Art. 256. The child shall be presumed legitimate, although the mother may have declared against its legitimacy or may have been sentenced as an adulteress. 4

To bolster their theory, petitioners presented in evidence the application for enrolment at Mapua Institute of Technology of Angelita Libunao, accomplished in 1956, which states:

Father's Name: Jose Libunao

Occupation: engineer (mining)

Mother's Name: Honoria Empaynado 5

as well as Cesar Libunao's 1958 application for enrolment at the Mapua Institute of Technology, which states:

Father's Name: Jose Libunao

Occupation: none

Mother's Name: Honoria Empaynado 6

Petitioners claim that had Jose Libunao been dead during the time when said applications were accomplished, the enrolment forms of his children would have stated so. These not being the case, they conclude that Jose Libunao must have still been alive in 1956 and 1958.

Additionally, petitioners presented the joint affidavit of Juan Quiambao and Alejandro Ramos 7 stating that to their knowledge Jose Libunao had died in 1971, leaving as his widow, Honoria Empaynado, and that the former had been interred at the Loyola Memorial Park.

Lastly, petitioners presented the affidavit of Dr. Pedro Arenas, 8 Ricardo Abad's physician, declaring that in 1935, he had examined Ricardo Abad and found him to be infected with gonorrhea, and that the latter had become sterile as a consequence thereof.

With these pieces of evidence, petitioners claim that Cecilia and Marian Abad are not the illegitimate children of Ricardo Abad, but rather the legitimate children of the spouses Jose Libunao and Honoria Empaynado.

At the outset, it must be noted that petitioners are disputing the veracity of the trial court's finding of facts. It is a fundamental and settled rule that factual findings of the trial court, adopted and confirmed by the Court of Appeals, are final and conclusive and may not be reviewed on appeal. 9 Petitioners, however, argue that factual findings of the Court of Appeals are not binding on this Court when there appears in the record of the case some fact or circumstance of weight and influence which has been overlooked, or the significance of which has been

misinterpreted, that if considered, would affect the result of the case. 10

This Court finds no justifiable reason to apply this exception to the case at bar.

First, the evidence presented by petitioners to prove that Jose Libunao died in 1971 are, to say the least, far from conclusive. Failure to indicate on an enrolment form that one's parent is "deceased" is not necessarily proof that said parent was still living during the time said form was being accomplished. Furthermore, the joint affidavit of Juan Quiambao and Alejandro Ramos as to the supposed death of Jose Libunao in 1971 is not competent evidence to prove the latter's death at that time, being merely secondary evidence thereof. Jose Libunao's death certificate would have been the best evidence as to when the latter died. Petitioners have, however, inexplicably failed to present the same, although there is no showing that said death certificate has been lost or destroyed as to be unavailable as proof of Jose Libunao's death. More telling, while the records of Loyola Memorial Park show that a certain Jose Bautista Libunao was indeed buried there in 1971, this person appears to be different from Honoria Empaynado's first husband, the latter's name being Jose Santos Libunao. Even the name of the wife is different. Jose Bautista Libunao's wife is listed as Josefa Reyes while the wife of Jose Santos Libunao was Honoria Empaynado.

As to Dr. Arenas' affidavit, the same was objected to by private respondents as being privileged communication under Section 24 (c), Rule 130 of the Rules of Court. 11 The rule on confidential communications between physician and patient requires that: a) the action in which the advice or treatment given or any information is to be used is a civil case; b) the relation of physician and patient existed between the person claiming the privilege or his legal representative and the physician; c) the advice or treatment given by him or any information was acquired by the physician while professionally attending the patient; d) the information was necessary for the performance of his professional duty; and e) the disclosure of the information would tend to blacken the reputation of the patient. 12

Petitioners do not dispute that the affidavit meets the first four requisites. They assert, however, that the finding as to Ricardo Abad's "sterility" does not blacken the character of the deceased. Petitioners conveniently forget that Ricardo Abad's "sterility" arose when the latter contracted gonorrhea, a fact which most assuredly blackens his reputation. In fact, given that society holds virility at a premium, sterility alone, without the attendant embarrassment of contracting a sexually-transmitted disease, would be sufficient to blacken the reputation of any patient. We thus hold the affidavit inadmissible in evidence. And the same remains inadmissible in evidence, notwithstanding the death of Ricardo Abad. As stated by the trial court:

In the case of Westover vs. Aetna Life Insurance Company, 99 N.Y. 59, it was pointed out that: "The privilege of secrecy is not abolished or terminated because of death as stated in established precedents. It is an established rule that the purpose of the law would be thwarted and the policy intended to be promoted thereby would be defeated, if death removed the seal of secrecy, from the communications and disclosures which a patient should make to his physician. After one has gone to his grave, the living are not permitted to impair

his name and disgrace his memory by dragging to light communications and disclosures made under the seal of the statute.

Given the above disquisition, it is clearly apparent that petitioners have failed to establish their claim by the quantum of evidence required by law. On the other hand, the evidence presented by private respondents overwhelmingly prove that they are the acknowledged natural children of Ricardo Abad. We quote with approval the trial court's decision, thus:

In his individual statements of income and assets for the calendar years 1958 and 1970, and in all his individual income tax returns for the years 1964, 1965, 1967, 1968, 1969 and 1970, he has declared therein as his legitimate wife, Honoria Empaynado; and as his legitimate dependent children, Cecilia, Marian (except in Exh. 12) and Rosemarie Abad (Exhs. 12 to 19; TSN, February 26, 1973, pp. 33-44).

xxx xxx xxx

In December 1959, Ricardo Abad insured his daughters Cecilia, then eleven (11) years old, and Marian, then (5) years old, on [a] twenty (20) year-endowment plan with the Insular Life Assurance Co., Ltd. and paid for their premiums (Exh. 34 and 34-A; 34-B to C; 35, 35-A to D; TSN, February 27, 1973, pp. 7-20).

In 1966, he and his daughter Cecilia Abad opened a trust fund account of P100,000,00 with the People's Bank and Trust Company which was renewed until (sic) 1971, payable to either of them in the event of death (Exhs. 36-A; 36-E). On January 5, 1971, Ricardo Abad opened a trust fund of P100,000.00 with the same bank, payable to his daughter Marian (Exh. 37-A). On January 4, 1971, Ricardo Abad and his sister Dolores Abad had (sic) agreed to stipulate in their PBTC Trust Agreement that the 9% income of their P100,000.00 trust fund shall (sic) be paid monthly to the account reserved for Cecilia, under PBTC Savings Account No. 49053 in the name of Ricardo Abad and/or Cecilia Abad (Exh. 38) where the income of the trust fund intended for Cecilia was also deposited monthly (TSN, February 27, 1973, pp. 21-36). Ricardo Abad had also deposited (money) with the Monte de Piedad and Savings Bank in the name of his daughter Marian, represented by him, as father, under Savings Account 17348 which has (sic) a balance of P34,812.28 as of June 30, 1972. (Exh. 60-B). . .

With the finding that private respondents are the illegitimate children of Ricardo Abad, petitioners are precluded from inheriting the estate of their brother. The applicable provisions are:

Art. 988. In the absence of legitimate descendants or ascendants, the illegitimate

children shall succeed to the entire estate of the deceased.

Art. 1003. If there are no . . . illegitimate children, or a surviving spouse, the collateral relatives shall succeed to the entire estate of the deceased in accordance with the following articles. (Emphasis supplied).

As to petitioners' claim that the properties m the name of Ricardo Abad actually belong to their mother Lucila de Mesa, both the trial court and the appellate court ruled that the evidence presented by private respondents proved that said properties in truth belong to Ricardo Abad. As stated earlier, the findings of fact by the trial court are entitled to great weight and should not be disturbed on appeal, it being in a better position to examine the real evidence, as well as to observe the demeanor of the witnesses while testifying in the case. 13 In fact, petitioners seem to accept this conclusion, their contention being that they are entitled to the subject estate whether the same is owned by Ricardo Abad or by Lucila de Mesa.

Digressing from the main issue, in its decision dated October 19, 1994, the Court of Appeals affirmed the trial court's order dated March 21, 1975 denying the appeal of Dolores de Mesa Abad and Cesar de Mesa Tioseco on the ground that the same was filed out of time. This affirmance is erroneous, for on July 9, 1985, this Court had already ruled that the same was not filed out of time. Well-settled is the dictum that the rulings of the Supreme Court are binding upon and may not be reversed by a lower court.

WHEREFORE, premises considered, the instant petition is hereby DENIED. The decision of the Court of Appeals in CA-G.R. CV No. 30184 dated October 19, 1994 is AFFIRMED with the MODIFICATION that the affirmance of the Order dated March 21, 1975 denying the appeal of Dolores de Mesa Abad and Cesar de Mesa Tioseco for being filed out of time is SET ASIDE. Costs against petitioners.

SO ORDERED.

G.R. No. 91114. September 25, 1992.]

NELLY LIM, Petitioner, v. THE COURT OF APPEALS, HON. MANUEL D. VICTORIO, as Presiding Judge of RTC-Rosales,

Pangasinan, Branch 53, and JUAN SIM, Respondents.

Quisumbing, Torres & Evangelista for Petitioner.

Bince, Oficiana & Dancel for Private Respondent.

SYLLABUS

1. REMEDIAL LAW; ACTIONS; EVIDENCE; PRIVILEGED COMMUNICATIONS; PHYSICIAN-PATIENT PRIVILEGE; RATIONAL BEHIND THE RULE. — This rule on the physician-patient privilege is intended to facilitate and make safe full and confidential disclosure by the patient to the physician of all facts, circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient. It rests in public policy and is for the general interest of the community.

2. ID.; ID.; ID.; ID.; ID.; SUBJECT TO WAIVER. — Since the object of the privilege is to protect the patient, it may be waived if no timely objection is made to the physician’s testimony.

3. ID.; ID.; ID.; ID.; ID.; REQUISITES. — In order that the privilege may be successfully claimed, the following requisites must concur: "1. the privilege is claimed in a civil case; 2. the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; 3. such person acquired the information while he was attending to the patient in his professional capacity; 4. the information was necessary to enable him to act in that capacity; and 5. the information was confidential, and, if disclosed, would blacken the reputation (formerly character) of the patient."cralaw virtua1aw library

4. ID.; ID.; ID.; ID.; CONDITIONS. — These requisites conform with the four (4) fundamental conditions necessary for the establishment of a privilege against the disclosure of certain communications, to wit: "1. The communications must originate in a confidence that they will not be disclosed. 2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties. 3. The relation must be one which in the opinion of the community ought to be sedulously fostered 4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation."cralaw virtua1aw library

5. ID.; ID.; ID.; ID.; PHYSICIAN-PATIENT PRIVILEGE; SCOPE. — The physician may be considered to be acting in his professional capacity when he attends to the patient for curative, preventive, or palliative treatment. Thus, only disclosures which would have been made to the physician to enable him "safely and efficaciously to treat his patient" are covered by the privilege. It is to be emphasized that "it is the tenor only of the

communication that is privileged. The mere fact of making a communication, as well as the date of a consultation and the number of consultations, are therefore not privileged from disclosure, so long as the subject communicated is not stated."cralaw virtua1aw library

6. ID.; ID.; ID.; BURDEN OF PROOF AND PRESUMPTIONS; ONE WHO CLAIMS PRIVILEGED COMMUNICATIONS MUST PROVE REQUISITES THEREOF. — One who claims this privilege must prove the presence of these aforementioned requisites.

7. ID.; ID.; ID.; PRIVILEGED COMMUNICATIONS; PHYSICIAN-PATIENT PRIVILEGE; INFORMATION GATHERED IN PRESENCE OF THIRD PARTIES, NOT PRIVILEGED. — There is authority to the effect that information elicited during consultation with a physician in the presence of third parties removes such information from the mantle of the privilege: "Some courts have held that the casual presence of a third person destroys the confidential nature of the communication between doctor and patient and thus destroys the privilege, and that under such circumstances the doctor may testify. Other courts have reached a contrary result."cralaw virtua1aw library

8. ID.; ID.; ID.; ID.; ID.; PRIVILEGED, WAIVED IN CASE AT BAR. — while it may be true that counsel for the petitioner opposed the oral request for the issuance of a subpoena ad testificandum to Dr. Acampado and filed a formal motion for the quashal of the said subpoena a day before the witness was to testify, the petitioner makes no claim in any of her pleadings that her counsel had objected to any question asked of the witness on the ground that it elicited an answer that would violate the privilege, despite the trial court’s advise that said counsel may interpose his objection to the testimony "once it becomes apparent that the testimony, sought to be elicited is covered by the privileged communication rule." The particular portions of the stenographic notes of the testimony of Dr. Acampado quoted in the petitioner’s Petition and Memorandum, and in the private respondent’s Memorandum, do not at all show that any objections were interposed. Even granting ex gratia that the testimony of Dr. Acampado could be covered by the privilege, the failure to seasonably object thereto amounted to a waiver thereof.

D E C I S I O N

DAVIDE, JR., J.:

This petition brings into focus the rule on the confidentiality of the physician-patient relationship. Petitioner urges this Court to strike down as being violative thereof the resolution of public respondent Court of Appeals in C.A.-G.R. SP No. 16991 denying due course to a petition to annul the order of the trial court allowing a Psychiatrist of the National Mental Hospital to testify as an expert witness and not as an attending physician of petitioner.

The parties are in agreement as to the following facts:chanrob1es virtual 1aw library

Petitioner and private respondent are lawfully married to each other.

On 25 November 1987, private respondent filed with Branch 53 of the Regional Trial Court (RTC) of Pangasinan a petition for annulment of such marriage on the ground that petitioner has been allegedly suffering from a mental illness called schizophrenia "before, during and after the marriage and until the present." After the issues were joined and the pre-trial was terminated, trial on the merits ensued. Private respondent presented three (3) witnesses before taking the witness stand himself to testify on his own behalf. On 11 January 1989, private respondent’s counsel announced that he would present as his next witness the Chief of the Female Services of the National Mental Hospital, Dr. Lydia Acampado, a Doctor of Medicine who specializes in Psychiatry. Said counsel forthwith orally applied for the issuance of a subpoena ad testificandum requiring Dr. Acampado to testify on 25 January 1989. Petitioner’s counsel opposed the motion on the ground that the testimony sought to be elicited from the witness is privileged since the latter had examined the petitioner in a professional capacity and had diagnosed her to be suffering from schizophrenia. Over such opposition, the subpoena was issued on 12 January 1989.chanrobles virtualawlibrary chanrobles.com:chanrobles.com.ph

On 24 January 1989, petitioner’s counsel filed an urgent omnibus motion to quash the subpoena and suspend the proceedings pending resolution of the motion.

Before Dr. Acampado took the witness stand on 25 January 1989, the court heard this urgent motion. Movant argued that having seen and examined the petitioner in a professional capacity, Dr. Acampado is barred from testifying under the rule on the confidentiality of a physician-patient relationship. Counsel for private respondent contended, however, that Dr. Acampado would be presented as an expert witness and would not testify on any information acquired while attending to the petitioner in a professional capacity. The trial court, per respondent Judge, denied the motion and allowed the witness to testify. Dr. Acampado thus took the witness stand, was qualified by counsel for private respondent as an expert witness and was asked hypothetical questions related to her field of expertise. She neither revealed the illness she examined and treated the petitioner for nor disclosed the results of her examination and the medicines she had prescribed.

Since petitioner’s counsel insisted that the ruling of the court on the motion be reduced to writing, respondent Judge issued the following Order on the same date:jgc:chanrobles.com.ph

"In his omnibus motion filed with the Court only yesterday, January 24, 1989, petitioner seeks to prevent Dr. Lydia Acampado from testifying because she saw and examined respondent Nelly Lim in her professional capacity perforce her testimony is covered by the privileged (sic) communication rule.

Petitioner contends that Dr. Acampado is being presented as an expert witness and that she will not testify on any information she acquired in (sic) attending to Nelly Lim in her professional capacity.

Based on the foregoing manifestation of counsel for petitioner, the Court denied the respondent’s motion and forthwith allowed Dr. Acampado to testify. However, the Court advised counsel for respondent to interpose his objection once it becomes apparent that the testimony sought to be elicited is covered by the privileged communication rule.

On the witness box, Dr. Acampado answered routinary (sic) questions to qualify her as an expert in psychiatry; she was asked to render an opinion as to what kind of illness (sic) are stelazine tablets applied to; she was asked to render an opinion on a (sic) hypothetical facts respecting certain behaviours of a person; and finally she admitted she saw and treated Nelly Lim but she never revealed what illness she examined and treated her (sic); nor (sic) the result of her examination of Nelly Lim, nor (sic) the medicines she prescribed.

WHEREFORE, the omnibus motion dated January 19, 1989 is hereby DENIED." 1 

On 3 March 1989, petitioner filed with the public respondent Court of Appeals a petition 2 forcertiorari and prohibition, docketed therein as C.A.-G.R. SP No. 16991, to annul the aforesaid order of respondent Judge on the ground that the same was issued with grave abuse of discretion amounting to lack of jurisdiction, and to prohibit him from proceeding with the reception of Dr. Acampado’s testimony.chanrobles.com : virtual law library

On 18 September 1989, the Court of Appeals promulgated a resolution 3 denying due course to the petition on the ground that "the petitioner failed in establishing the confidential nature of the testimony given by or obtained from Dr. Acampado when she testified on January 25, 1989." Hence, the respondent Judge committed no grave abuse of discretion. In support thereof, the respondent Court discussed the conditions which would render as inadmissible testimonial evidence between a physician and his patient under paragraph (c), Section 24, Rule 130 of the Revised Rules of Court and made the following findings:jgc:chanrobles.com.ph

"The present suit is a civil case for annulment of marriage and the person whose testimony is sought to be stopped as a privileged communication is a physician, who was summoned by the patient in her professional capacity for curative remedy or treatment. The divergence in views is whether the information given by the physician in her testimony in open court on January 25, 1989 was a privileged communication. We are of the opinion that they do not fall within the realm of a privileged communication because the information were (sic) not obtained from the patient while attending her in her professional capacity and neither were (sic) the information necessary to enable the physician to prescribe or give treatment to the patient Nelly Lim. And neither does the information obtained from the physician tend to blacken the character of the patient or bring disgrace to her or invite reproach. Dr. Acampado is a Medical Specialist II and in-charge (sic) of the Female Service of the National Center for Mental Health a fellow of the Philippine Psychiatrist Association and a Diplomate of the Philippine Board of Psychiatrists. She was summoned to testify as an expert witness and not as an attending physician of petitioner.

After a careful scrutiny of the transcript of Dr. Acampado’s testimony, We find no declaration that touched (sic) or disclosed any information which she has acquired from her patient, Nelly Lim, during the period she attended her patient in a professional

capacity. Although she testified that she examined and interviewed the patient, she did not disclose anything she obtained in the course of her examination, interview and treatment of her patient. Given a set of facts and asked a hypothetical question, Dr. Acampado rendered an opinion regarding the history and behaviour of the fictitious character in the hypothetical problem. The facts and conditions alleged in the hypothetical problem did not refer and (sic) had no bearing to (sic) whatever information or findings the doctor obtained from attending the (sic) patient. A physician is not disqualified to testify as an expert concerning a patient’s ailment, when he can disregard knowledge acquired in attending such patient and make answer solely on facts related in (sic) the hypothetical question. (Butler v. Role, 242 Pac. 436; Supreme Court of Arizona Jan. 7, 1926). Expert testimony of a physician based on hypothetical question (sic) as to cause of illness of a person whom he has attended is not privileged, provided the physician does not give testimony tending to disclose confidential information related to him in his professional capacity while attending to the patient. (Crago v. City of Cedar Rapids, 98 NW 354, see Jones on Evidence, Vol. 3, p. 843, 3rd Ed.).

The rule on privilege (sic) communication in the relation of physician and patient proceeds from the fundamental assumption that the communication to deserve protection must be confidential in their origin. Confidentiality is not to be blindly implied from the mere relation of physician and patient. It might be implied according to circumstances of each case, taking into consideration the nature of the ailment and the occasion of the consultation. The claimant of the privilege has the burden of establishing in each instance all the facts necessary to create the privilege, including the confidential nature of the information given." 4 

Her motion to reconsider the resolution having been denied, petitioner took this recourse under Rule 45 of the Rules of Court. In her view, the respondent Court of Appeals "seriously erred" :chanrob1es virtual 1aw library

"I.

. . . in not finding that all the essential elements of the rule on physician-patient privileged communication under Section 21, Rule 130 of the Rules of Court (Section 24, Rule 130 of the Revised Rules of Evidence) exist in the case at bar.

II.

. . . in believing that Dr. Acampado ‘was summoned as an expert witness and not as an attending physician of petitioner.’

III.

. . . in concluding that Dr. Acampado made ‘no declaration that touched (sic) or disclosed any information which she has acquired from her patient, Nelly Lim, during the period she attended her patient in a professional capacity.’

IV.

. . . in declaring that ‘the petitioner failed in establishing the confidential nature of the testimony given by or obtained from Dr. Acampado.’" 5 

We gave due course to the petition and required the parties to submit their respective Memoranda 6 after the private respondent filed his Comment 7 and the petitioner submitted her reply 8 thereto. The parties subsequently filed their separate Memoranda.

The petition is devoid of any merit. Respondent Court of Appeals committed no reversible error in its challenged resolution.

The law in point is paragraph (c), Section 24 of the Revised Rules on Evidence which reads:jgc:chanrobles.com.ph

"SECTION 24. Disqualification by reason of privileged communication. — The following persons cannot testify as to matters learned in confidence in the following cases:chanrob1es virtual 1aw library

x       x       x

(c) A person authorized to practice medicine, surgery or obstetrics cannot in a civil case, without the consent of the patient, be examined as to any advice or treatment given by him or any information which he may have acquired in attending such patient in a professional capacity, which information was necessary to enable him to act in that capacity, and which would blacken the reputation of the patient." chanrobles virtual lawlibrary

This is a reproduction of paragraph (c), Section 21, Rule 130 of the 1964 Revised Rules of Court with two (2) modifications, namely: (a) the inclusion of the phrase "advice or treatment given by him," and (b) substitution of the word reputation for the word character. Said Section 21 in turn is a reproduction of paragraph (f), Section 26, Rule 123 of the 1940 Rules of Court with a modification consisting in the change of the phrase "which would tend to blacken" in the latter to "would blacken." 9 Verily, these changes affected the meaning of the provision. Under the 1940 Rules of Court, it was sufficient if the information would tend to blacken the character of the patient. In the 1964 Rules of Court, a stricter requirement was imposed; it was imperative that the information would blacken such character. With the advent of the Revised Rules on Evidence on 1 July 1989, the rule was relaxed once more by the substitution of the word character with the word reputation. There is a distinction between these two concepts." ‘Character’ is what a man is, and ‘reputation’ is what he is supposed to be in what people say he is.’Character’ depends on attributes possessed, and ‘reputation’ on attributes which others believe one to possess. The former signifies reality and the latter merely what is accepted to be reality at present." 10 

This rule on the physician-patient privilege is intended to facilitate and make safe full and confidential disclosure by the patient to the physician of all facts, circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient. 11 It rests in public policy and is for the general interest of the community. 12 

Since the object of the privilege is to protect the patient, it may be waived if no timely objection is made to the physician’s testimony. 13 

In order that the privilege may be successfully claimed, the following requisites must concur:jgc:chanrobles.com.ph

"1. the privilege is claimed in a civil case;

2. the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics;

3. such person acquired the information while he was attending to the patient in his professional capacity;

4. the information was necessary to enable him to act in that capacity; and

5. the information was confidential, and, if disclosed, would blacken the reputation (formerly character) of the patient." 14 

These requisites conform with the four (4) fundamental conditions necessary for the establishment of a privilege against the disclosure of certain communications, to wit:jgc:chanrobles.com.ph

"1. The communications must originate in a confidence that they will not be disclosed.

2. This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

3. The relation must be one which in the opinion of the community ought to be sedulously fostered

4. The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation." 15 

The physician may be considered to be acting in his professional capacity when he attends to the patient for curative, preventive, or palliative treatment. Thus, only disclosures which would have been made to the physician to enable him "safely and efficaciously to treat his patient" are covered by the privilege. 16 It is to be emphasized that "it is the tenor only of the communication that is privileged. The mere fact of making a communication, as well as the date of a consultation and the number of consultations, are therefore not privileged from disclosure, so long as the subject communicated is not stated." 17 

One who claims this privilege must prove the presence of these aforementioned requisites. 18 

Our careful evaluation of the submitted pleadings leads Us to no other course of action but to agree with the respondent Court’s observation that the petitioner failed to discharge that burden. In the first place, Dr. Acampado was presented and qualified as an expert witness. As correctly held by the Court of Appeals, she did not disclose anything obtained in the course of her examination, interview and treatment of the petitioner; moreover, the facts and conditions alleged in the hypothetical problem did not refer to and had no bearing on whatever information or findings the doctor obtained while attending to the patient. There is, as well,

no showing that Dr. Acampado’s answers to the questions propounded to her relating to the hypothetical problem were influenced by the information obtained from the petitioner. Otherwise stated, her expert opinion excluded whatever information or knowledge she had about the petitioner which was acquired by reason of the physician-patient relationship existing between them. As an expert witness, her testimony before the trial court cannot then be excluded. The rule on this point is summarized as follows:chanrobles virtual lawlibrary

"The predominating view, with some scant authority otherwise, is that the statutory physician-patient privilege, though duly claimed, is not violated by permitting a physician to give expert opinion testimony in response to a strictly hypothetical question in a lawsuit involving the physical mental condition of a patient whom he has attended professionally, where his opinion is based strictly upon the hypothetical facts stated, excluding and disregarding any personal professional knowledge he may have concerning such patient. But in order to avoid the bar of the physician-patient privilege where it is asserted in such a case, the physician must base his opinion solely upon the facts hypothesized in the question, excluding from consideration his personal knowledge of the patient acquired through the physician and patient relationship. If he cannot or does not exclude from consideration his personal professional knowledge of the patient’s condition he should not be permitted to testify as to his expert opinion." 19 

Secondly, it is quite clear from Dr. Acampado’s testimony that the petitioner was never interviewed alone. Said interviews were always conducted in the presence of a third party, thus:jgc:chanrobles.com.ph

"Q I am asking you, doctor, whom did you interview?

A I interviewed the husband first, then the father and after having the history, I interviewed the patient, Nelly.

Q How many times did Juan Sim and Nelly Lim go to your office?

A Now, the two (2) of them came three (3) times. As I have stated before, once in the month of April of 1987 and two (2) times for the month of June 1987, and after that, since July of 1987, it was the father of Nelly, Dr. Lim, who was bringing Nelly to me until November of 1987.

Q Now, Dr. Lim is a fellow physician?

A Yes, I understand.

Q Was there anything that he told you when he visited with you in a clinic?

A I would say that there was none. Even if I asked information about Nelly, I could not get anything from Dr. Lim.

Q Now, when Dr. Lim and his daughter went to your clinic, was there any doctor who was also present during that interview?

A No, sir, I don’t remember any." 20 

There is authority to the effect that information elicited during consultation with a physician in the presence of third parties removes such information from the mantle of the privilege:jgc:chanrobles.com.ph

"Some courts have held that the casual presence of a third person destroys the confidential nature of the communication between doctor and patient and thus destroys the privilege, and that under such circumstances the doctor may testify. Other courts have reached a contrary result." 21 

Thirdly, except for the petitioner’s sweeping claim — that" (T)he information given by Dr. Acampado brings disgrace and invite (sic) reproach to petitioner by falsely making it appear in the eyes of the trial court and the public that the latter was suffering from a mental disturbance called schizophrenia — which caused, and continues to cause, irreparable injury to the name and reputation of petitioner and her family," 22 — which is based on a wrong premise, nothing specific or concrete was offered to show that indeed, the information obtained from Dr. Acampado would blacken the former’s "character" (or "reputation"). Dr. Acampado never disclosed any information obtained from the petitioner regarding the latter’s ailment and the treatment recommended therefor.chanrobles.com : virtual law library

Finally, while it may be true that counsel for the petitioner opposed the oral request for the issuance of a subpoena ad testificandum to Dr. Acampado and filed a formal motion for the quashal of the said subpoena a day before the witness was to testify, the petitioner makes no claim in any of her pleadings that her counsel had objected to any question asked of the witness on the ground that it elicited an answer that would violate the privilege, despite the trial court’s advise that said counsel may interpose his objection to the testimony "once it becomes apparent that the testimony, sought to be elicited is covered by the privileged communication rule." The particular portions of the stenographic notes of the testimony of Dr. Acampado quoted in the petitioner’s Petition 23 and Memorandum, 24 and in the private respondent’s Memorandum, 25 do not at all show that any objections were interposed. Even granting ex gratia that the testimony of Dr. Acampado could be covered by the privilege, the failure to seasonably object thereto amounted to a waiver thereof.

WHEREFORE, the instant petition is DENIED for lack of merit.

Costs against petitioner.

SO ORDERED.

G.R. No. 108854 June 14, 1994

MA. PAZ FERNANDEZ KROHN, petitioner, vs.COURT OF APPEALS and EDGAR KROHN, JR., respondents.

Cruz, Durian, Agabin, Atienza, Alday and Tuason for petitioner.

Oscar F. Martinez for private respondent.

 

BELLOSILLO, J.:

A confidential psychiatric evaluation report is being presented in evidence before the trial court in a petition for annulment of marriage grounded on psychological incapacity. The witness testifying on the report is the husband who initiated the annulment proceedings, not the physician who prepared the report.

The subject of the evaluation report, Ma. Paz Fernandez Krohn, invoking the rule on privileged communication between physician and patient, seeks to enjoin her husband from disclosing the contents of the report. After failing to convince the trial court and the appellate court, she is now before us on a petition for review on certiorari.

On 14 June 1964, Edgar Krohn, Jr., and Ma. Paz Fernandez were married at the Saint Vincent de Paul Church in San Marcelino, Manila. The union produced three children, Edgar Johannes, Karl Wilhelm and Alexandra. Their blessings notwithstanding, the relationship between the couple developed into a stormy one. In 1971, Ma. Paz underwent psychological testing purportedly in an effort to ease the marital strain. The effort however proved futile. In 1973, they finally separated in fact.

In 1975, Edgar was able to secure a copy of the confidential psychiatric report on Ma. Paz prepared and signed by Drs. Cornelio Banaag, Jr., and Baltazar Reyes. On 2 November 1978, presenting the report among others, he obtained a decree ("Conclusion") from the Tribunal Metropolitanum Matrimoniale in Manila nullifying his church marriage with Ma. Paz on the ground of "incapacitas assumendi onera conjugalia due to lack of due discretion existent at the time of the wedding and thereafter." 1 On 10 July 1979, the decree was confirmed and pronounced "Final and Definite." 2

Meanwhile, on 30 July 1982, the then Court of First Instance (now Regional Trial Court) of Pasig, Br. II, issued an order granting the voluntary dissolution of the conjugal partnership.

On 23 October 1990, Edgar filed a petition for the annulment of his marriage with Ma. Paz before the trial court. 3In his petition, he cited the Confidential Psychiatric Evaluation Report which Ma. Paz merely denied in her Answer as "either unfounded or irrelevant." 4

At the hearing on 8 May 1991, Edgar took the witness stand and tried to testify on the contents of the Confidential Psychiatric Evaluation Report. This was objected to on the ground that it violated the rule on privileged communication between physician and patient. Subsequently, Ma. Paz filed a Manifestation expressing her "continuing objection" to any evidence, oral or documentary, "that would thwart the physician-patient privileged communication rule," 5 and thereafter submitted a Statement for the Record asserting among others that "there is no factual or legal basis whatsoever for petitioner (Edgar) to claim

'psychological incapacity' to annul their marriage, such ground being completely false, fabricated and merely an afterthought." 6 Before leaving for Spain where she has since resided after their separation, Ma. Paz also authorized and instructed her counsel to oppose the suit and pursue her counterclaim even during her absence.

On 29 May 1991, Edgar opposed Ma. Paz' motion to disallow the introduction of the confidential psychiatric report as evidence, 7 and afterwards moved to strike out Ma. Paz' Statement for the Record. 8

On 4 June 1991, the trial court issued an Order admitting the Confidential Psychiatric Evaluation Report in evidence and ruling that —

. . . the Court resolves to overrule the objection and to sustain the Opposition to the respondent's Motion; first, because the very issue in this case is whether or not the respondent had been suffering from psychological incapacity; and secondly, when the said psychiatric report was referred to in the complaint, the respondent did not object thereto on the ground of the supposed privileged communication between patient and physician. What was raised by the respondent was that the said psychiatric report was irrelevant. So, the Court feels that in the interest of justice and for the purpose of determining whether the respondent as alleged in the petition was suffering from psychological incapacity, the said psychiatric report is very material and may be testified to by petitioner (Edgar Krohn, Jr.) without prejudice on the part of the respondent to dispute the said report or to cross-examination first the petitioner and later the psychiatrist who prepared the same if the latter will be presented. 9

On 27 November 1991, the trial court denied the Motion to Reconsider Order dated June 4, 1991, and directed that the Statement for the Record filed by Ma. Paz be stricken off the record. A subsequent motion for reconsideration filed by her counsel was likewise denied.

Counsel of Ma. Paz then elevated the issue to respondent Court of Appeals. In a Decision promulgated 30 October 1992, the appellate court dismissed the petition for certiorari. 10 On 5 February 1993, the motion to reconsider the dismissal was likewise denied. Hence, the instant petition for review.

Petitioner now seeks to enjoin the presentation and disclosure of the contents of the psychiatric report and prays for the admission of her Statement for the Record to form part of the records of the case. She argues that since Sec. 24, par. (c), Rule 130, of the Rules of Court 11 prohibits a physician from testifying on matters which he may have acquired in attending to a patient in a professional capacity, "WITH MORE REASON should be third person (like respondent-husband in this particular instance) be PROHIBITED from testifying on privileged matters between a physician and patient or from submitting any medical report, findings or evaluation prepared by a physician which the latter has acquired as a result of his confidential and privileged relation with a patient." 12 She says that the reason behind the prohibition is —

. . . to facilitate and make safe, full and confidential disclosure by a patient to his physician of all facts, circumstances and symptoms, untrammeled by apprehension of their subsequent and enforced disclosure and publication on the witness stand, to the end that the physician may form a correct opinion, and be enabled safely and efficaciously to treat his patient. 13

She further argues that to allow her husband to testify on the contents of the psychiatric evaluation report "will set a very bad and dangerous precedent because it abets circumvention of the rule's intent in preserving the sanctity, security and confidence to the relation of physician and his patient." 14 Her thesis is that what cannot be done directly should not be allowed to be done indirectly.

Petitioner submits that her Statement for the Record simply reiterates under oath what she asserted in her Answer, which she failed to verify as she had already left for Spain when her Answer was filed. She maintains that her "Statement for the Record is a plain and simple pleading and is not as it has never been intended to take the place of her testimony;" 15 hence, there is no factual and legal basis whatsoever to expunge it from the records.

Private respondent Edgar Krohn, Jr., however contends that "the rules are very explicit: the prohibition applies only to a physician. Thus . . . the legal prohibition to testify is not applicable to the case at bar where the person sought to be barred from testifying on the privileged communication is the husband and not the physician of the petitioner." 16 In fact, according to him, the Rules sanction his testimony considering that a husband may testify against his wife in a civil case filed by one against the other.

Besides, private respondent submits that privileged communication may be waived by the person entitled thereto, and this petitioner expressly did when she gave her unconditional consent to the use of the psychiatric evaluation report when it was presented to the Tribunal Metropolitanum Matrimoniale which took it into account among others in deciding the case and declaring their marriage null and void. Private respondent further argues that petitioner also gave her implied consent when she failed to specifically object to the admissibility of the report in her Answer where she merely described the evaluation report as "either unfounded or irrelevant." At any rate, failure to interpose a timely objection at the earliest opportunity to the evidence presented on privileged matters may be construed as an implied waiver.

With regard to the Statement for the Record filed by petitioner, private respondent posits that this in reality is an amendment of her Answer and thus should comply with pertinent provisions of the Rules of Court, hence, its exclusion from the records for failure to comply with the Rules is proper.

The treatise presented by petitioner on the privileged nature of the communication between physician and patient, as well as the reasons therefor, is not doubted. Indeed, statutes making communications between physician and patient privileged are intended to inspire confidence in the patient and encourage him to make a full disclosure to his physician of his symptoms and condition. 17 Consequently, this prevents the physician from making public information that will result in humiliation, embarrassment, or disgrace to the patient. 18 For, the patient

should rest assured with the knowledge that the law recognizes the communication as confidential, and guards against the possibility of his feelings being shocked or his reputation tarnished by their subsequent disclosure. 19 The physician-patient privilege creates a zone of privacy, intended to preclude the humiliation of the patient that may follow the disclosure of his ailments. Indeed, certain types of information communicated in the context of the physician-patient relationship fall within the constitutionally protected zone of privacy, 20 including a patient's interest in keeping his mental health records confidential. 21 Thus, it has been observed that the psychotherapist-patient privilege is founded upon the notion that certain forms of antisocial behavior may be prevented by encouraging those in need of treatment for emotional problems to secure the services of a psychotherapist.

Petitioner's discourse while exhaustive is however misplaced. Lim v. Court of Appeals 22 clearly lays down the requisites in order that the privilege may be successfully invoked: (a) the privilege is claimed in a civil case; (b) the person against whom the privilege is claimed is one duly authorized to practice medicine, surgery or obstetrics; (c) such person acquired the information while he was attending to the patient in his professional capacity; (d) the information was necessary to enable him to act in that capacity; and, (e) the information was confidential and, if disclosed, would blacken the reputation (formerly character) of the patient.

In the instant case, the person against whom the privilege is claimed is not one duly authorized to practice medicine, surgery or obstetrics. He is simply the patient's husband who wishes to testify on a document executed by medical practitioners. Plainly and clearly, this does not fall within the claimed prohibition. Neither can his testimony be considered a circumvention of the prohibition because his testimony cannot have the force and effect of the testimony of the physician who examined the patient and executed the report.

Counsel for petitioner indulged heavily in objecting to the testimony of private respondent on the ground that it was privileged. In his Manifestation before the trial court dated 10 May 1991, he invoked the rule on privileged communications but never questioned the testimony as hearsay. It was a fatal mistake. For, in failing to object to the testimony on the ground that it was hearsay, counsel waived his right to make such objection and, consequently, the evidence offered may be admitted.

The other issue raised by petitioner is too trivial to merit the full attention of this Court. The allegations contained in the Statement for the Records are but refutations of private respondent's declarations which may be denied or disproved during the trial.

The instant appeal has taken its toll on the petition for annulment. Three years have already lapsed and private respondent herein, as petitioner before the trial court, has yet to conclude his testimony thereat. We thus enjoin the trial judge and the parties' respective counsel to act with deliberate speed in resolving the main action, and avoid any and all stratagems that may further delay this case. If all lawyers are allowed to appeal every perceived indiscretion of a judge in the course of trial and include in their appeals depthless issues, there will be no end to litigations, and the docket of appellate courts will forever be clogged with inconsequential cases. Hence, counsel should exercise prudence in appealing lower court rulings and raise only legitimate issues so as not to retard the resolution of

cases. Indeed, there is no point in unreasonably delaying the resolution of the petition and prolonging the agony of the wedded couple who after coming out from a storm still have the right to a renewed blissful life either alone or in the company of each other. 23

WHEREFORE, the instant petition for review is DENIED for lack of merit. The assailed Decision of respondent Court of Appeals promulgated on 30 October 1992 is AFFIRMED.

SO ORDERED.

G.R. No. 131636            March 5, 2003

PEOPLE OF THE PHILIPPINES, appellee, vs.ARTEMIO INVENCION Y SORIANO, appellant.

DAVIDE, JR., C.J.:

Before us for automatic review1 is the Decision2 dated 22 September 1997 of the Regional Trial Court of Tarlac, Tarlac, Branch 65, in Criminal Case No. 9375, finding accused-appellant Artemio Invencion y Soriano guilty beyond reasonable doubt of the crime of rape committed against his 16-year-old daughter Cynthia P. Invencion, and sentencing him to suffer the penalty of death and to pay Cynthia the sum of P50,000 as moral damages and P25,000 as exemplary damages, as well as the costs of suit.

Artemio was charged before the Regional Trial Court of Tarlac with thirteen counts of rape in separate complaints docketed as Criminal Cases Nos. 9363 to 9375, all dated 17 October 1996. The cases were consolidated and jointly tried. At his arraignment Artemio entered a plea of not guilty in each case.

The witnesses presented by the prosecution in its evidence in chief were Elven Invencion, Eddie Sicat, Gloria Pagala, Dr. Rosario Fider, and Atty. Florencio Canlas. Presented as rebuttal witnesses were Gloria Pagala and Celestino Navarro.

Elven Invencion, an 8-year-old grade two pupil of Sapang Tagalog Elementary School in Tarlac, Tarlac, testified that he is a half-brother of Cynthia and son of Artemio with his second common-law wife. Sometime before the end of the school year in 1996, while he was sleeping in one room with his father Artemio, Cynthia, and two other younger brothers, he was awakened by Cynthia’s loud cries. Looking towards her, he saw his father on top of Cynthia, doing a pumping motion. After about two minutes, his father put on his short pants.3

Elven further declared that Artemio was a very strict and cruel father and a drunkard. He angrily prohibited Cynthia from entertaining any of her suitors. Whenever he was drunk, he would maul Elven and quarrel with his stepfather, Celestino Navarro.4

Eddie Sicat, a 40-year-old farmer and neighbor of Artemio in Barangay Sapang Tagalog, Tarlac, Tarlac, testified that on the second week of March 1996, between 6:00 and 7:00 a.m., while he was passing by the house of Artemio on his way to the field to catch fish, he heard somebody crying. He then peeped through a small opening in the destroyed portion of the sawali wall of Artemio’s house. He saw Cynthia lying on her back and crying, while her father was on top of her, doing a pumping motion. Eddie observed them for about fifteen seconds, and then he left and proceeded to the field to catch fish.5 He reported what he had witnessed to Artemio’s stepfather, Celestino, later that morning.6

Gloria Pagala, the mother of Cynthia and former common-law wife of Artemio, testified that she and Artemio started living together in Guimba, Nueva Ecija, in February 1969. Out of their common-law relationship, they had six children, one of whom was Cynthia. In March 1982, she and Artemio parted ways permanently. Later, Gloria and her children lived in Pura, Tarlac. When Artemio’s mother died sometime in 1996, Cynthia lived with Artemio in a small one-room dwelling owned by Celestino and located in Barangay Sapang Tagalog, Tarlac, Tarlac.7 On 30 August 1996, her son Novelito told her that Cynthia was

pregnant. Gloria then went to the house of Artemio and asked Cynthia about her condition. The latter confessed that she had been sexually abused by her father. Gloria then went to the office of the National Bureau of Investigation (NBI) in Tarlac and reported what Artemio had done to their daughter Cynthia.8

Dr. Rosario Fider of Tarlac Provincial Hospital testified that she examined Cynthia on 16 September 1996. She found Cynthia to be five to six months pregnant and to have incomplete, healed hymenal lacerations at 3, 5, 8 o’clock positions, which could have been caused by sexual intercourse or any foreign body inserted in her private part.9

Atty. Florencio Canlas, an NBI agent, testified that on 18 September 1996, Cynthia, accompanied by her mother, complained before him and NBI Supervising Agent Rolando Vergara that she was raped by her father Artemio. She then executed a written statement,10 which she subscribed and sworn to before Atty. Canlas.11

The defense did not present Artemio as a witness. Instead, his counsel de parte, Atty. Isabelo Salamida, took the witness stand and testified for the defense. He declared that on 24 June 1997 (the same day when he testified before the court), between 10:45 and 11:00 a.m., he and his secretary went to the house of Artemio in Barangay Sapang Tagalog. The hut was made of sawali. Its door was padlocked, and its windows were shut. When he went around the house and tried to peep through the old sawali walls on the front and left and right sides of the hut, he could not see anything inside the room where Artemio and his children used to sleep. Although it was then about noontime, it was dark inside.12 Atty. Salamida then concluded that prosecution witness Eddie Sicat was not telling the truth when he declared having seen what Artemio did to Cynthia when he peeped through a small opening in the sawali wall of the house in the early morning sometime on the second week of March 1996.

On rebuttal, Gloria Pagala testified that the house where Artemio used to live was a small hut with some destroyed portions in its sawali walls. When she went there to visit her children sometime in December 1995, there was a hole in front and at the sidewall of the hut facing a vacant lot where people passed by to fish in a nearby brook.13When she went to the place again sometime in September 1996 after she was informed of Cynthia’s pregnancy, she noticed that the destroyed portions of the hut’s sawali walls were not yet repaired.14

The second rebuttal witness Celestino Navarro, stepfather of Artemio, testified that he is the owner of the small house where Artemio and his children used to reside. At the time that Artemio and his children, including Cynthia, were living in that house, the hut’s old sawali walls had some small holes in them, thus confirming the testimony of Eddie Sicat. After Artemio was arrested on the basis of Cynthia’s complaint before the NBI, Celestino made some repairs in the hut by, among other things, placing galvanized iron sheets to cover the holes at the destroyed portions of the sawali walls. Thereafter, a person named Alvin occupied the house.15

In its Decision of 22 September 1997, the trial court convicted Artemio in Criminal Case No. 9375. It, however, acquitted him in all the other twelve cases for lack of evidence.

In his Appellant’s Brief, Artemio contends that the trial court erred in

I

x x x BELIEVING THE TESTIMONIES OF THE PROSECUTION WITNESSES;

II

x x xNOT DISMISSING THIS CASE FOR FAILURE OF THE PROSECUTION TO PROVE [HIS] GUILT x x x BEYOND REASONABLE DOUBT.

Artemio attacks the competency and credibility of Elven as a witness. He argues that Elven, as his son, should have been disqualified as a witness against him under Section 20(c), Rule 130 of the Rules of Court.16 Besides, Elven’s testimony appears not to be his but what the prosecution wanted him to say, as the questions asked were mostly leading questions. Moreover, Elven had ill-motive in testifying against him, as he (Artemio) was cruel to him.

In another attempt to cast doubt on the credibility of the prosecution witnesses, Artemio points to the following inconsistencies in their testimonies: (1) as to the time of the commission of the crime, Elven testified having seen Artemio on top of his sister one night in March 1996, while Eddie Sicat testified having seen them in the same position between 6:00 and 7:00 a.m. in the second week of March 1996; (2) as to the residence of Cynthia in 1996, Gloria testified that the former was living with her in Guimba from November 1995 to September 1996, while Elven and Eddie declared that she was in Sapang Tagalog in March 1996; and (3) as to the residence of Artemio, Jr., Gloria stated that he was living with the appellant, but later she declared that he was living with her in Pura.

Artemio also argues that since his house had no electricity and was dark even at daytime, it was impossible for Elven and Eddie to see him allegedly doing pumping motion on top of Cynthia. In his Reply Brief, he likewise urges us to disregard the testimonies of rebuttal witnesses Celestino and Gloria. According to him, Celestino had an ax to grind against him (Artemio) because he had been badgering Celestino for his share of the lot where the hut stands, which was owned by Artemio’s deceased mother. On the other hand, Gloria wanted to get rid of Artemio because she was already cohabiting with another man.

In the Appellee’s Brief, the Office of the Solicitor General (OSG) prays for the affirmation of Artemio’s conviction and sentence, but recommends that a civil indemnity in the amount of P75,000 be awarded in addition to the awards of moral and exemplary damages.

We find no cogent reason to overturn the findings of the trial court on the culpability of Artemio.

It is doctrinally settled that the factual findings of the trial court, especially on the credibility of the witnesses, are accorded great weight and respect and will not be disturbed on appeal. This is so because the trial court has the advantage of observing the witnesses through the different indicators of truthfulness or falsehood, such as the angry flush of an insisted assertion, the sudden pallor of a discovered lie, the tremulous mutter of a reluctant answer, the forthright tone of a ready reply, the furtive glance, the blush of conscious shame, the hesitation, the yawn, the sigh, the candor or lack of it, the scant or full realization of the solemnity of an oath, or the carriage and mien.17 This rule, however, admits of exceptions, as where there exists a fact or circumstance of weight and influence that has been ignored or

misconstrued by the court, or where the trial court has acted arbitrarily in its appreciation of the facts.18 We do not find any of these exceptions in the case at bar.

As to the competency of Elven to testify, we rule that such is not affected by Section 25, Rule 130 of the Rules of Court,19 otherwise known as the rule on "filial privilege." This rule is not strictly a rule on disqualification because a descendant is not incompetent or disqualified to testify against an ascendant.20 The rule refers to a privilege not to testify, which can be invoked or waived like other privileges. As correctly observed by the lower court, Elven was not compelled to testify against his father; he chose to waive that filial privilege when he voluntarily testified against Artemio. Elven declared that he was testifying as a witness against his father of his own accord and only "to tell the truth."21

Neither can Artemio challenge the prosecution’s act of propounding leading questions on Elven. Section 10(c) of Rule 132 of the Rules of Court22 expressly allows leading questions when the witness is a child of tender years like Elven.

The alleged ulterior motive of Elven in testifying against his father also deserves scant consideration. Such insinuation of ill-motive is too lame and flimsy. As observed by the OSG, Elven, who was of tender age, could not have subjected himself to the ordeal of a public trial had he not been compelled by a motive other than to bring to justice the despoiler of his sister’s virtue. There is no indication that Elven testified because of anger or any ill-motive against his father, nor is there any showing that he was unduly pressured or influenced by his mother or by anyone to testify against his father. The rule is that where there is no evidence that the principal witness for the prosecution was actuated by improper motive, the presumption is that he was not so actuated and his testimony is entitled to full credence.23

We find as inconsequential the alleged variance or difference in the time that the rape was committed, i.e., during the night as testified to by Elven, or between 6:00 and 7:00 a.m. per the testimony of Eddie. The exact time or date of the commission of rape is not an element of the crime. What is decisive in a rape charge is that the commission of the rape by the accused has been sufficiently proved. Inconsistencies and discrepancies as to minor matters irrelevant to the elements of the crime cannot be considered grounds for acquittal.24 In this case, we believe that the crime of rape was, indeed, committed as testified to by Elven and Eddie.

The alleged inconsistencies in the testimonies of both Elven and Gloria do not impair the credibility of these witnesses. We agree with the trial court that they are minor inconsistencies, which do not affect the credibility of the witnesses. We have held in a number of cases that inconsistencies in the testimonies of witnesses that refer to minor and insignificant details do not destroy the witnesses’ credibility.25 On the contrary, they may even be considered badges of veracity or manifestations of truthfulness on the material points in the testimonies. What is important is that the testimonies agree on essential facts and substantially corroborate a consistent and coherent whole.26

Artemio’s allegation that it was impossible for both Elven and Eddie to have seen and witnessed the crime because the room was dark even at daytime was convincingly disputed by rebuttal witnesses Gloria Pagala and Celestino Navarro. Furthermore, as observed by the OSG, even if the hut was without electricity, Elven could not have been mistaken in his identification of Artemio because he had known the latter for a long time.

Moreover, Elven was at the time only two meters away from Cynthia and Artemio. Even without sufficient illumination, Elven, who was jostled out of his sleep by Cynthia’s loud cry, could observe the pumping motion made by his father.27

The alleged ill-motives on the part of Gloria and Celestino were not sufficiently proved. Nothing in the records suggests any reason that would motivate Gloria to testify falsely against Artemio, who is the father of her other children. Moreover, we have repeatedly held that no mother would subject her child to the humiliation, disgrace, and trauma attendant to the prosecution for rape if she were not motivated solely by the desire to have the person responsible for her child’s defilement incarcerated.28 As for Celestino, he testified that the lot where the hut stands is owned by his daughter Erlinda, and not by Artemio’s mother.29 At any rate, even without Celestino’s testimony, Artemio’s conviction would stand.

The remaining issue for our resolution is the correctness of the penalty of death imposed by the trial court. The death penalty was imposed because of the trial court’s appreciation of the special qualifying circumstances that Artemio is the father of the victim and the latter was less than 18 years old at the time the crime was committed.

Article 335 of the Revised Penal Code, as amended by R.A. No. 7659, which is the governing law in this case, pertinently reads:

Article 335. When and how rape is committed. –

The crime of rape shall be punished by reclusion perpetua.

x x x

The death penalty shall also be imposed if the crime of rape is committed with any of the following circumstances:

1. when the victim is under eighteen (18) years of age and the offender is a parent, ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil degree, or the common-law spouse of the parent of the victim.

To justify the imposition of the death penalty in a rape committed by a father on a daughter, the minority of the victim and her relationship with the offender, which are special qualifying circumstances, must be alleged in the complaint or information and proved by the prosecution during the trial by the quantum of proof required for conviction. The accusatory portion of the complaint in Criminal Case No. 9375 reads as follows:

That on or about the month of March 1996 at Sapang Tagalog, Municipality of Tarlac, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the said accused Artemio S. Invencion did then and there willfully, unlawfully and feloniously by using force and intimidation have carnal knowledge of his daughter Cynthia P. Invencion who was sixteen (16) years old, in their house.

CONTRARY TO LAW.30

Although the relationship of Cynthia with her father Artemio was alleged in the complaint and duly established by evidence during trial, the allegation in the complaint regarding her age was not clearly proved.

In the very recent case of People v. Pruna,31 we set the guidelines in appreciating age either as an element of the crime or as a qualifying circumstance:

1. The best evidence to prove the age of the offended party is an original or certified true copy of the certificate of live birth of such party.

2. In the absence of a certificate of live birth, similar authentic documents such as baptismal certificate and school records which show the date of birth of the victim would suffice to prove age.

3. If the certificate of live birth or authentic document is shown to have been lost or destroyed or otherwise unavailable, the testimony, if clear and credible, of the victim’s mother or a member of the family either by affinity or consanguinity who is qualified to testify on matters respecting pedigree such as the exact age or date of birth of the offended party pursuant to Section 40, Rule 130 of the Rules on Evidence shall be sufficient under the following circumstances:

a. If the victim is alleged to be below 3 years of age and what is sought to be proved is that she is less than 7 years old;

b. If the victim is alleged to be below 7 years of age and what is sought to be proved is that she is less than 12 years old;

c. If the victim is alleged to be below 12 years of age and what is sought to be proved is that she is less than 18 years old.

4. In the absence of a certificate of live birth, authentic document, or the testimony of the victim’s mother or relatives concerning the victim’s age, the complainant’s testimony will suffice provided that it is expressly and clearly admitted by the accused.

5. It is the prosecution that has the burden of proving the age of the offended party. The failure of the accused to object to the testimonial evidence regarding age shall not be taken against him.

6. The trial court should always make a categorical finding as to the age of the victim.

In the present case, no birth certificate or any similar authentic document was presented and offered in evidence to prove Cynthia’s age. The statement in the medical certificate showing Cynthia’s age is not proof thereof, since a medical certificate does not authenticate the date of birth of the victim. Moreover, pursuant to Pruna, Gloria’s testimony regarding Cynthia’s age was insufficient, since Cynthia was alleged to be 16 years old already at the time of the rape and what is sought to be proved is that she was then 18 years old. Moreover, the trial court did not even make a categorical finding on Cynthia’s minority. Finally, the silence of Artemio or his failure to object to the testimonial evidence regarding Cynthia’s age could not be taken against him.

It must be stressed that the severity of death penalty, especially its irreversible and final nature once carried out, makes the decision-making process in capital offenses aptly subject to the most exacting rules of procedure and evidence.32 Accordingly, in the absence of sufficient proof of Cynthia’s minority, Artemio cannot be convicted of qualified rape and sentenced to suffer the

death penalty. He should only be convicted of simple rape and meted the penalty of reclusion perpetua.

As regards the civil liability of Artemio, the awards of moral damages in the amount of P50,000 and exemplary damages in the amount of P25,000 are insufficient. Civil indemnity, which is mandatory upon the finding of the fact of rape,33 should also be awarded. In simple rape, the civil indemnity for the victim shall not be less than P50,000.

WHEREFORE, the decision of the Regional Trial Court, Branch 65, Tarlac, Tarlac, in Criminal Case No. 9375 is hereby AFFIRMED with the modification that that accused Artemio Invencion y Soriano is held guilty beyond reasonable doubt as principal of the crime of simple rape, and is sentenced to suffer the penalty of reclusion perpetua and to pay the victim Cynthia Invencion the sums of P50,000 as indemnity; P50,000 as moral damages; and P25,000 as exemplary damages.

Costs de oficio.

SO ORDERED.

G.R. No. 136051             June 8, 2006

ALFREDO P. ROSETE, OSCAR P. MAPALO and CHITO P. ROSETE, Petitioners, vs.JULIANO LIM and LILIA LIM, Respondents.

D E C I S I O N

CHICO-NAZARIO, J.:

Before Us is a petition for review on certiorari which seeks to set aside the Decision1 of the Court of Appeals in CA-G.R. SP No. 45400 dated 24 August 1998 which upheld the Orders of Branch 77 of the Regional Trial Court (RTC) of Quezon City in Civil Case No. Q-95-25803 dated 22 July 19972 and 27 August 1997,3 allowing the taking of deposition upon oral examination of petitioners Oscar P. Mapalo and Chito P. Rosete, and its Resolution4 dated 19 October 1998 denying petitioners’ Motion for Reconsideration.

Relevant to the petition are the following antecedents:

On 5 December 1995, respondents Juliano Lim and Lilia Lim filed before Branch 77 of the RTC of Quezon City a Complaint for Annulment, Specific Performance with Damages against AFP Retirement and Separation Benefits System (AFP-RSBS), Espreme Realty and Development Corporation (Espreme Realty), Alfredo P. Rosete, Maj. Oscar Mapalo, Chito P. Rosete, Bank of the Philippine Islands (BPI), and Register of Deeds of the Province of Mindoro Occidental, docketed as Civil Case No. Q-95-25803.5 It asked, among other things, that the Deed of Sale executed by AFP-RSBS covering certain parcels of lands in favor of Espreme Realty and the titles thereof under the name of the latter be annulled; and that the AFP-RSBS and Espreme Realty be ordered to execute the necessary documents to restore ownership and title of said lands to respondents, and that the Register of Deeds be ordered to cancel the titles of said land under the name of Espreme Realty and to transfer the same in the names of respondents.

On 18 January 1996, petitioners filed a Motion to Dismiss on the grounds that the court has no jurisdiction over the subject matter of the action or suit and that venue has been improperly laid.6 A Supplemental Motion to Dismiss was filed by petitioner Alfredo P. Rosete on 23 January 1996.7 Respondents opposed the Motion to Dismiss filed by petitioners8 to which petitioners filed their Reply.9 Respondents filed a Comment on the Reply.10AFP-RSBS,11 Espreme Realty,12 and, BPI13 filed their respective Motions to Dismiss which respondents opposed.

In an Order dated 12 March 1996, the Motions to Dismiss filed by all the defendants were denied.14 The Motions for Reconsideration filed by petitioners15 and BPI,16 which respondents opposed,17 were also denied in an Order dated 24 May 1996.18

On 6 June 1996, BPI filed its Answer with Compulsory Counterclaim and Cross-claim19 to which respondents filed their Reply and Answer to Counterclaim.20 Respondents also filed a Motion21 to Serve Supplemental Allegation against BPI and petitioner Chito Rosete which the trial court granted in an order dated 28 July 1996.22

On 7 June 1996, petitioners manifested that on 5 June 1996, they filed a Petition23 for Certiorari and Prohibition in the Court of Appeals, docketed as CA-G.R. SP No. 40837, challenging the trial court’s Orders dated 12 March 1996 and 24 May 1996 that

denied their Motions to Dismiss and Reconsideration, respectively.24 They likewise informed the trial court that on 6 June 1996, they filed an Ex-Parte Motion25 to Admit Answers Ex Abudanti Cautela.26lavvphi1.net

On 7 August 1996, petitioner Chito Rosete filed a motion asking that the order granting the Motion to Serve Supplemental Allegation against BPI and him be reconsidered and set aside, and that respondents be ordered to reduce their supplemental allegations in the form and manner required by the Rules of Court.27 Same was denied in an order dated 12 August 1996.28 This denial was appealed to the Court of Appeals on 26 August 1996, which was docketed as CA-G.R. SP No. 41821.29

Petitioner Chito Rosete filed his Supplemental Answer (Ex Abudanti Cautela) on 9 September 1996.30

On 28 May 1997, respondents filed a Notice to Take Deposition Upon Oral Examination giving notice that on June 18 and 20, 1997 at 9:00 a.m., they will cause the deposition of petitioners Oscar Mapalo and Chito Rosete.31

On 13 June 1997, petitioners filed an Urgent Ex-Parte Motion and Objection to Take Deposition Upon Oral Examination.32 They argued that the deposition may not be taken without leave of court as no answer has yet been served and the issues have not yet been joined since their Answer was filed ex abudanti cautela, pending resolution of the Petition for Certiorari challenging the orders dated 12 March 1996 and 24 May 1996 that denied their Motions to Dismiss and for Reconsideration, respectively. This is in addition to the fact that they challenged via a Petition for Certiorari before the Court of Appeals the lower court’s Orders dated 23 July 1996 and 12 August 1996 which, respectively, granted respondents’ Motion to Serve Supplemental Allegation Against Defendants BPI and Chito Rosete, and for the latter to plead thereto, and denied Chito Rosete’s Motion for Reconsideration of the order dated 23 July 1996. Moreover, they contend that since there are two criminal cases pending before the City Prosecutors of Mandaluyong City and Pasig City involving the same set of facts as in the present case wherein respondent Juliano Lim is the private complainant and petitioners are the respondents, to permit the taking of the deposition would be violative of their right against self-incrimination because by means of the oral deposition, respondents would seek to establish the allegations of fact in the complaint which are also the allegations of fact in the complaint-affidavits in the said criminal cases.

Respondents filed their Comment on the Objection to Deposition Taking33 to which petitioners filed their Reply.34

In an Order dated 22 July 1997, the lower court denied petitioners’ motion and objection to take deposition upon oral examination, and scheduled the taking thereof.35 On 7 August 1997, petitioners filed a Motion for Reconsideration.36 They filed a Supplemental Motion for Reconsideration on 11 August 1997.37

On 13 August 1997, petitioners filed an Urgent Ex-parte Motion to Cancel or Suspend the Taking of the Deposition Upon Oral Examination.38

In an Order dated 27 August 1997, the lower court denied petitioners’ Motion for Reconsideration and Supplemental Motion for Reconsideration, and scheduled the taking of the Deposition Upon Oral Examination.39

On 22 September1997, respondents filed an Omnibus Motion: (1) To Strike Out Answer of Defendants Mapalo and Chito Rosete; (2) to Declare Defendants Mapalo and Chito Rosete In Default; and (3) For Reception of Plaintiffs’ Evidence Ex-parte,40 which petitioners opposed.41

On 29 September 1997, petitioners filed with the Court of Appeals a Petition for Certiorari and Prohibition (CA-G.R. SP No. 45400) assailing the Orders of the lower court dated 22 July 1997 and 27 August 1997.42

In an Order dated 29 October 1997, the lower court: (1) ordered the striking out from the record of the Answer ex abudanti cautela filed by petitioners Mapalo and Chito Rosete for their continued unjustified refusal to be sworn pursuant to Rule 29 of the 1997 Rules of Civil Procedure; (2) declared defendants Mapalo and Chito Rosete in default; and I allowed plaintiffs to present their evidence ex-parte as regards the latter.43 On 25 November 1997, petitioners filed an Urgent Ex-parte Omnibus Motion (1) For Reconsideration; (2) To Lift Order of Default; and (3) To Hold In Abeyance Presentation of Plaintiffs’ Evidence Ex-parte.44 The day after, petitioners filed an Amended Omnibus Motion.45

On 28 November 1997, respondents filed a Motion to Set Case for Ex-parte Presentation of Evidence46 which the lower court set for 11 December 1997.47

In an Order dated 11 December 1997, the lower court denied petitioners’ urgent ex-parte omnibus motion.48 On even date, the ex-parte presentation of evidence against petitioners Mapalo and Chito Rosete was terminated.49

On 10 February 1998, petitioners filed a Petition50 for Certiorari and Prohibition before the Court of Appeals (CA-G.R. SP No. 46774) questioning the lower court’s Orders dated 29 October 1997 and 11 December 1997.51

On 24 August 1998, the Court of Appeals dismissed the Petition for Certiorari and Prohibition, and upheld the Orders of the lower court dated 22 July 1997 and 27 August 1997 (CA-G.R. SP No. 45400).52 The Motion for Reconsideration53 which was opposed54 by respondents was denied on 19 October 1998.55

Petitioners assail the ruling of the Court of Appeals via a Petition for Review on Certiorari. They anchor their petition on the following grounds:

I.

THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION IN DECLARING IN ITS ORDER DATED AUGUST 27, 1997 THAT THE CONSTITUTIONAL RIGHT AGAINST SELF INCRIMINATION OF OSCAR MAPALO AND CHITO ROSETE WOULD NOT BE VIOLATED BY THE TAKING OF THEIR DEPOSITION IN THE CIVIL CASE FILED IN THE LOWER COURT ALTHOUGH THEY ARE ALSO RESPONDENTS OR DEFENDANTS IN THE AFOREMENTIONED CRIMINAL CASES FILED BY HEREIN PRIVATE RESPONDENT JULIANO LIM INVOLVING THE SAME OR IDENTICAL SET OF FACTS; AND

II.

THE TRIAL COURT ERRED AND ACTED IN GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF OR IN EXCESS OF JURISDICTION IN DECLARING IN ITS ORDER DATED JULY 22, 1997 THAT (A) THE NOTICE TO TAKE DEPOSITION UPON ORAL

EXAMINATION NEED NOT BE WITH LEAVE OF COURT BECAUSE AN ANSWER EX ABUDANTE CAUTELA HAS BEEN FILED; AND (B) JOINDER OF ISSUES IS NOT REQUIRED IN ORDER THAT THE SECTION 1, RULE 2356 OF THE RULES OF CIVIL PROCEDURE MAY BE AVAILED OF.

Petitioners argue that the Court of Appeals gravely erred when it found that the trial court did not abuse its discretion when it refused to recognize petitioners Oscar Mapalo and Chito Rosete’s constitutional right against self-incrimination when, through its Orders dated 22 July 1997 and 27 August 1997, it allowed and scheduled the taking of their depositions by way of oral examination. They explain they refuse to give their depositions due to the pendency of two criminal cases against them, namely, Batasan Pambansa Blg. 22 and Estafa, because their answers would expose them to criminal action or liability since they would be furnishing evidence against themselves in said criminal cases. They allege there can be no doubt that the questions to be asked during the taking of the deposition would revolve around the allegations in the complaint in the civil case which are identical to the allegations in the complaint-affidavits in the two criminal cases, thus, there is a tendency to incriminate both Oscar Mapalo and Chito Rosete. Moreover, they explain that while an ordinary witness may be compelled to take the witness stand and claim the privilege against self-incrimination as each question requiring an incriminating answer is shot at him, an accused may altogether refuse to answer any and all questions because the right against self-incrimination includes the right to refuse to testify.

In short, petitioners Mapalo and Chito Rosete refuse to have their depositions taken in the civil case because they allegedly would be incriminating themselves in the criminal cases because the testimony that would be elicited from them may be used in the criminal cases. As defendants in the civil case, it is their claim that to allow their depositions to be taken would violate their constitutional right against self-incrimination because said right includes the right to refuse to take the witness stand.

In order to resolve this issue, we must determine the extent of a person’s right against self-incrimination. A person’s right against self-incrimination is enshrined in Section 17, Article III of the 1987 Constitution which reads: "No person shall be compelled to be a witness against himself."

The right against self-incrimination is accorded to every person who gives evidence, whether voluntary or under compulsion of subpoena, in any civil, criminal or administrative proceeding. The right is not to be compelled to be a witness against himself. It secures to a witness, whether he be a party or not, the right to refuse to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to which may incriminate himself for some offense that he may refuse to answer on the strength of the constitutional guaranty.57

As to an accused in a criminal case, it is settled that he can refuse outright to take the stand as a witness. In People v. Ayson,58 this Court clarified the rights of an accused in the matter of giving testimony or refusing to do so. We said:

An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others—

1) to be exempt from being a witness against himself, and

2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him.

The right of the defendant in a criminal case "to be exempt from being a witness against himself" signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. In other words – unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him – the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. X x x (Underscoring supplied.)

It is clear, therefore, that only an accused in a criminal case can refuse to take the witness stand. The right to refuse to take the stand does not generally apply to parties in administrative cases or proceedings. The parties thereto can only refuse to answer if incriminating questions are propounded. This Court applied the exception – a party who is not an accused in a criminal case is allowed not to take the witness stand – in administrative cases/proceedings that partook of the nature of a criminal proceeding or analogous to a criminal proceeding.59 It is likewise the opinion of the Court that said exception applies to parties in civil actions which are criminal in nature. As long as the suit is criminal in nature, the party thereto can altogether decline to take the witness stand. It is not the character of the suit involved but the nature of the proceedings that controls.60

In the Ayson case, it is evident that the Court treats a party in a civil case as an ordinary witness, who can invoke the right against self-incrimination only when the incriminating question is propounded. Thus, for a party in a civil case to possess the right to refuse to take the witness stand, the civil case must also partake of the nature of a criminal proceeding.

In the present controversy, the case is civil it being a suit for Annulment, Specific Performance with Damages. In order for petitioners to exercise the right to refuse to take the witness stand and to give their depositions, the case must partake of the nature of a criminal proceeding. The case on hand certainly cannot be categorized as such. The fact that there are two criminal cases pending which are allegedly based on the same set of facts as that of the civil case will not give them the right to refuse to take the witness stand and to give their depositions. They are not facing criminal charges in the civil case. Like an ordinary witness, they can invoke the right against self-incrimination only when the incriminating question is actually asked of them. Only if and when incriminating questions are thrown their way can they refuse to answer on the ground of their right against self-incrimination.

On the second assigned error, petitioners contend that the taking of their oral depositions should not be allowed without

leave of court as no answer has yet been served and the issues have not yet been joined because their answers were filed ex abudanti cautela pending final resolution of the petition for certiorari challenging the trial court’s Orders dated 12 March 1996 and 24 May 1996 that denied their motions to dismiss and for reconsideration, respectively.

Section 1 of Rule 2461 of the Revised Rules of Court reads:

Section 1. Depositions pending action, when may be taken. – By leave of court after jurisdiction has been obtained over any defendant or over property which is the subject of the action, or without such leave after an answer has been served, the testimony of any person, whether a party or not, may be taken, at the instance of any party, by deposition upon oral examination or written interrogatories. The attendance of witnesses may be compelled by the use of a subpoena as provided in Rule 23. Depositions shall be taken only in accordance with these rules. The deposition of a person confined in prison may be taken only by leave of court on such terms as the court prescribes.

From the quoted section, it is evident that once an answer has been served, the testimony of a person, whether a party or not, may be taken by deposition upon oral examination or written interrogatories. In the case before us, petitioners contend they have not yet served an answer to respondents because the answers that they have filed with the trial court were made ex abudanti cautela. In other words, they do not consider the answers they filed in court and served on respondents as answers contemplated by the Rules of Court on the ground that same were filed ex abudanti cautela.

We find petitioners’ contention to be untenable. Ex abudanti cautela means "out of abundant caution" or "to be on the safe side."62 An answer ex abudanti cautela does not make their answer less of an answer. A cursory look at the answers filed by petitioners shows that they contain their respective defenses. An answer is a pleading in which a defending party sets forth his defenses63 and the failure to file one within the time allowed herefore may cause a defending party to be declared in default.64 Thus, petitioners, knowing fully well the effect of the non-filing of an answer, filed their answers despite the pendency of their appeal with the Court of Appeals on the denial of their motion to dismiss.

Petitioners’ argument that the issues of the case have not yet been joined must necessarily fail in light of our ruling that petitioners have filed their answers although the same were made ex abudanti cautela. Issues are joined when all the parties have pleaded their respective theories and the terms of the dispute are plain before the court.65 In the present case, the issues have, indeed, been joined when petitioners, as well as the other defendants, filed their answers. The respective claims and defenses of the parties have been defined and the issues to be decided by the trial court have been laid down.

We cannot also sustain petitioners’ contention that the lower court erred when it said that the joinder of issues is not required in order that Section 1, Rule 23 of the 1997 Rules of Civil Procedure may be availed of. Under said section, a deposition pending action may be availed of: (1) with leave of court when an answer has not yet been filed but after jurisdiction has been obtained over any defendant or property subject of the action, or (2) without leave of court after an answer to the complaint has been served. In the instant case, the taking of the deposition

may be availed of even without leave of court because petitioners have already served their answers to the complaint.

WHEREFORE, all the foregoing considered, the instant petition is dismissed for lack of merit.

SO ORDERED.

G.R. No. 85215 July 7, 1989

THE PEOPLE OF THE PHILIPPINES, petitioner, vs.HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial Region, Baguio City, and FELIPE RAMOS, respondents.

Nelson Lidua for private respondent.

 

NARVASA, J.:

What has given rise to the controversy at bar is the equation by the respondent Judge of the right of an individual not to "be compelled to be a witness against himself" accorded by Section 20, Article III of the Constitution, with the right of any person "under investigation for the commission of an offense . . . to remain silent and to counsel, and to be informed of such right," granted by the same provision. The relevant facts are not disputed.

Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL), assigned at its Baguio City station. It having allegedly come to light that he was involved in irregularities in the sales of plane tickets, 1 the PAL management notified him of an investigation to be conducted into the matter of February 9, 1986. That investigation was scheduled in accordance with PAL's Code of Conduct and Discipline, and the Collective Bargaining Agreement signed by it with the Philippine Airlines Employees' Association (PALEA) to which Ramos pertained. 2

On the day before the investigation, February 8,1986, Ramos gave to his superiors a handwritten notes 3 reading as follows:

2-8-86

TO WHOM IT MAY CONCERN:

THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO SETTLE IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN THE AMT. OF P 76,000 (APPROX.) SUBJECT TO CONDITIONS AS MAY BE IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86.

(s) Felipe Ramos

(Printed) F. Ramos

At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City, Edgardo R. Cruz, in the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo Quitasol, and PALEA Shop Steward Cristeta Domingo, Felipe Ramos was informed "of the finding of the Audit Team." Thereafter, his answers in response to questions by Cruz, were taken down in writing. Ramos' answers were to the effect inter alia that he had not indeed made disclosure of the tickets mentioned in the Audit Team's findings, that the proceeds had been "misused" by him, that although he had planned on paying back the money, he had been prevented from doing so, "perhaps (by) shame," that he was still willing to settle his obligation, and proferred a "compromise x x to pay on staggered basis, (and) the amount would be known in the next investigation;" that he desired the next investigation to be at the same place, "Baguio

CTO," and that he should be represented therein by "Shop stewardees ITR Nieves Blanco;" and that he was willing to sign his statement (as he in fact afterwards did). 4 How the investigation turned out is not dealt with the parties at all; but it would seem that no compromise agreement was reached much less consummated.

About two (2) months later, an information was filed against Felipe Ramos charging him with the crime of estafa allegedly committed in Baguio City during the period from March 12, 1986 to January 29, 1987. In that place and during that time, according to the indictment, 5 he (Ramos) —

.. with unfaithfulness and/or abuse of confidence, did then and there willfully ... defraud the Philippine Airlines, Inc., Baguio Branch, ... in the following manner, to wit: said accused ... having been entrusted with and received in trust fare tickets of passengers for one-way trip and round-trip in the total amount of P76,700.65, with the express obligation to remit all the proceeds of the sale, account for it and/or to return those unsold, ... once in possession thereof and instead of complying with his obligation, with intent to defraud, did then and there ... misappropriate, misapply and convert the value of the tickets in the sum of P76,700.65 and in spite of repeated demands, ... failed and refused to make good his obligation, to the damage and prejudice of the offended party .. .

On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter ensued. The prosecution of the case was undertaken by lawyers of PAL under the direction and supervision of the Fiscal.

At the close of the people's case, the private prosecutors made a written offer of evidence dated June 21, 1988, 6which included "the (above mentioned) statement of accused Felipe J. Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as well as his "handwritten admission x x given on February 8, 1986," also above referred to, which had been marked as Exhibit K.

The defendant's attorneys filed "Objections/Comments to Plaintiff s Evidence." 7 Particularly as regards the peoples' Exhibit A, the objection was that "said document, which appears to be a confession, was taken without the accused being represented by a lawyer." Exhibit K was objected to "for the same reasons interposed under Exhibits 'A' and 'J.'

By Order dated August 9, 1988, 8 the respondent judge admitted all the exhibits "as part of the testimony of the witnesses who testified in connection therewith and for whatever they are worth," except Exhibits A and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence, it appearing that it is the statement of accused Felipe Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office, in an investigation conducted by the Branch Manager x x since it does not appear that the accused was reminded of this constitutional rights to remain silent and to have counsel, and that when he waived the same and gave his statement, it was with the assistance actually of a counsel." He also declared inadmissible "Exhibit K, the handwritten admission made by accused Felipe J. Ramos, given on February 8, 1986 x x for the same reason stated in the

exclusion of Exhibit 'A' since it does not appear that the accused was assisted by counsel when he made said admission."

The private prosecutors filed a motion for reconsideration. 9 It was denied, by Order dated September 14, 1988. 10 In justification of said Order, respondent Judge invoked this Court's rulings in Morales, Jr. v. Juan Ponce Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA 467, People. v. Sison, 142 SCRA 219, and People v. Decierdo, 149 SCRA 496, among others, to the effect that "in custodial investigations the right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel," and the explicit precept in the present Constitution that the rights in custodial investigation "cannot be waived except in writing and in the presence of counsel." He pointed out that the investigation of Felipe Ramos at the PAL Baguio Station was one "for the offense of allegedly misappropriating the proceeds of the tickets issued to him' and therefore clearly fell "within the coverage of the constitutional provisions;" and the fact that Ramos was not detained at the time, or the investigation was administrative in character could not operate to except the case "from the ambit of the constitutional provision cited."

These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for certiorari and prohibition at bar, filed in this Court by the private prosecutors in the name of the People of the Philippines. By Resolution dated October 26, 1988, the Court required Judge Ayson and Felipe Ramos to comment on the petition, and directed issuance of a "TEMPORARY RESTRAINING ORDER . . . ENJOINING the respondents from proceeding further with the trial and/or hearing of Criminal Case No. 3488-R (People ... vs. Felipe Ramos), including the issuance of any order, decision or judgment in the aforesaid case or on any matter in relation to the same case, now pending before the Regional Trial Court of Baguio City, Br. 6, First Judicial Region." The Court also subsequently required the Solicitor General to comment on the petition. The comments of Judge Ayson, Felipe Ramos, and the Solicitor General have all been filed. The Solicitor General has made common cause with the petitioner and prays "that the petition be given due course and thereafter judgment be rendered setting aside respondent Judge's Orders . . . and ordering him to admit Exhibits 'A' and 'K' of the prosecution." The Solicitor General has thereby removed whatever impropriety might have attended the institution of the instant action in the name of the People of the Philippines by lawyers de parte of the offended party in the criminal action in question.

The Court deems that there has been full ventilation of the issue — of whether or not it was grave abuse of discretion for respondent Judge to have excluded the People's Exhibits A and K. It will now proceed to resolve it.

At the core of the controversy is Section 20, Article IV of the 1973 Constitution, 11 to which respondent Judge has given a construction that is disputed by the People. The section reads as follows:

SEC. 20. No person shall be compelled to be a witness against himself Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him. Any confession obtained in violation of

this section shall be inadmissible in evidence.

It should at once be apparent that there are two (2) rights, or sets of rights, dealt with in the section, namely:

1) the right against self-incrimination — i.e., the right of a person not to be compelled to be a witness against himself — set out in the first sentence, which is a verbatim reproduction of Section 18, Article III of the 1935 Constitution, and is similar to that accorded by the Fifth Amendment of the American Constitution, 12 and

2) the rights of a person in custodial interrogation, i.e., the rights of every suspect "under investigation for the commission of an offense."

Parenthetically, the 1987 Constitution indicates much more clearly the individuality and disparateness of these rights. It has placed the rights in separate sections. The right against self- incrimination, "No person shall be compelled to be a witness against himself," is now embodied in Section 17, Article III of the 1987 Constitution. The lights of a person in custodial interrogation, which have been made more explicit, are now contained in Section 12 of the same Article III. 13

Right Against Self-Incrimination

The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is accorded to every person who gives evidence, whether voluntarily or under compulsion of subpoena, in any civil, criminal, or administrative proceeding. 14 The right is NOT to "be compelled to be a witness against himself"

The precept set out in that first sentence has a settled meaning. 15 It prescribes an "option of refusal to answer incriminating questions and not a prohibition of inquiry." 16 It simply secures to a witness, whether he be a party or not, the right to refue to answer any particular incriminatory question, i.e., one the answer to which has a tendency to incriminate him for some crime. However, the right can be claimed only when the specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey it, appear as required, take the stand, be sworn and answer questions. It is only when a particular question is addressed to him, the answer to which may incriminate him for some offense, that he may refuse to answer on the strength of the constitutional guaranty.

That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the judge, or other officer presiding over a trial, hearing or investigation, any affirmative obligation to advise a witness of his right against self-incrimination. It is a right that a witness knows or should know, in accordance with the well known axiom that every one is presumed to know the law, that ignorance of the law excuses no one. Furthermore, in the very nature of things, neither the judge nor the witness can be expected to know in advance the character or effect of a question to be put to the latter. 17

The right against self-incrimination is not self- executing or automatically operational. It must be claimed. If not claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived, expressly, or impliedly, as by a failure to claim it at the appropriate time. 18

Rights in Custodial Interrogation

Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of rights. These rights apply to persons "under investigation for the commission of an offense," i.e., "suspects" under investigation by police authorities; and this is what makes these rights different from that embodied in the first sentence, that against self-incrimination which, as aforestated, indiscriminately applies to any person testifying in any proceeding, civil, criminal, or administrative.

This provision granting explicit rights to persons under investigation for an offense was not in the 1935 Constitution. It is avowedly derived from the decision of the U.S. Supreme Court in Miranda v. Arizona, 19 a decision described as an "earthquake in the world of law enforcement." 20

Section 20 states that whenever any person is "under investigation for the commission of an offense"--

1) he shall have the right to remain silent and to counsel, and to be informed of such right, 21

2) nor force, violence, threat, intimidation, or any other means which vitiates the free will shall be used against him; 22 and

3) any confession obtained in violation of x x (these rights shall be inadmissible in evidence. 23

In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "in-custody interrogation" being regarded as the commencement of an adversary proceeding against the suspect.24

He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as a result of interrogation can be used against him.

The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in self-incriminating statement without full warnings of constitutional rights." 25

The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation of accused persons." 26 And, as this Court has already stated, by custodial interrogation is meant "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way." 27 The

situation contemplated has also been more precisely described by this Court." 28

.. . After a person is arrested and his custodial investigation begins a confrontation arises which at best may be tanned unequal. The detainee is brought to an army camp or police headquarters and there questioned and "cross-examined" not only by one but as many investigators as may be necessary to break down his morale. He finds himself in strange and unfamiliar surroundings, and every person he meets he considers hostile to him. The investigators are well-trained and seasoned in their work. They employ all the methods and means that experience and study have taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are unlettered and are not aware of their constitutional rights. And even if they were, the intimidating and coercive presence of the officers of the law in such an atmosphere overwhelms them into silence. Section 20 of the Bill of Rights seeks to remedy this imbalance.

Not every statement made to the police by a person involved in some crime is within the scope of the constitutional protection. If not made "under custodial interrogation," or "under investigation for the commission of an offense," the statement is not protected. Thus, in one case, 29 where a person went to a police precinct and before any sort of investigation could be initiated, declared that he was giving himself up for the killing of an old woman because she was threatening to kill him by barang, or witchcraft, this Court ruled that such a statement was admissible, compliance with the constitutional procedure on custodial interrogation not being exigible under the circumstances.

Rights of Defendant in Criminal Case

As Regards Giving of Testimony

It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against self-incrimination and (2) those during custodial interrogation apply to persons under preliminary investigation or already charged in court for a crime.

It seems quite evident that a defendant on trial or under preliminary investigation is not under custodial interrogation. His interrogation by the police, if any there had been would already have been ended at the time of the filing of the criminal case in court (or the public prosecutors' office). Hence, with respect to a defendant in a criminal case already pending in court (or the public prosecutor's office), there is no occasion to speak of his right while under "custodial interrogation" laid down by the second and subsequent sentences of Section 20, Article IV of the 1973 Constitution, for the obvious reason that he is no longer under "custodial interrogation."

But unquestionably, the accused in court (or undergoing preliminary investigation before the public prosecutor), in common with all other persons, possesses the right against self- incrimination set out in the first sentence of Section 20 Article IV of the 1973 Constitution, i.e., the right to refuse to answer a specific incriminatory question at the time that it is put to him. 30

Additionally, the accused in a criminal case in court has other rights in the matter of giving testimony or refusing to do so. An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of Court, in all criminal prosecutions the defendant is entitled among others-

1) to be exempt from being a witness against himself, 31 and 2) to testify as witness in his own behalf; but if he offers himself as a witness he may be cross-examined as any other witness; however, his neglect or refusal to be a witness shall not in any manner prejudice or be used against him. 32

The right of the defendant in a criminal case "to be exempt from being a witness against himself' signifies that he cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be required to be a witness either for the prosecution, or for a co-accused, or even for himself. 33 In other words — unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena, having only the right to refuse to answer a particular incriminatory question at the time it is put to him-the defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be sworn, answer any question. 34 And, as the law categorically states, "his neglect or refusal to be a witness shall not in any manner prejudice or be used against him." 35

If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does testify, then he "may be cross- examined as any other witness." He may be cross-examined as to any matters stated in his direct examination, or connected therewith . 36 He may not on cross-examination refuse to answer any question on the ground that the answer that he will give, or the evidence he will produce, would have a tendency to incriminate him for the crime with which he is charged.

It must however be made clear that if the defendant in a criminal action be asked a question which might incriminate him, not for the crime with which he is charged, but for some other crime, distinct from that of which he is accused, he may decline to answer that specific question, on the strength of the right against self-incrimination granted by the first sentence of Section 20, Article IV of the 1973 Constitution (now Section 17 of the 1987 Constitution). Thus, assuming that in a prosecution for murder, the accused should testify in his behalf, he may not on cross-examination refuse to answer any question on the ground that he might be implicated in that crime of murder; but he may decline to answer any particular question which might implicate him for a different and distinct offense, say, estafa.

In fine, a person suspected of having committed a crime and subsequently charged with its commission in court, has the following rights in the matter of his testifying or producing evidence, to wit:

1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary investigation), but after having been taken into custody or otherwise deprived of his liberty in some significant way, and on being interrogated by the police: the continuing right to remain silent and to counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or any other means which vitiates the free will; and

to have evidence obtained in violation of these rights rejected; and

2) AFTER THE CASE IS FILED IN COURT — 37

a) to refuse to be a witness;

b) not to have any prejudice whatsoever result to him by such refusal;

c) to testify in his own behalf, subject to cross-examination by the prosecution;

d) WHILE TESTIFYING, to refuse to answer a specific question which tends to incriminate him for some crime other than that for which he is then prosecuted.

It should by now be abundantly apparent that respondent Judge has misapprehended the nature and import of the disparate rights set forth in Section 20, Article IV of the 1973 Constitution. He has taken them as applying to the same juridical situation, equating one with the other. In so doing, he has grossly erred. To be sure, His Honor sought to substantiate his thesis by arguments he took to be cogent and logical. The thesis was however so far divorced from the actual and correct state of the constitutional and legal principles involved as to make application of said thesis to the case before him tantamount to totally unfounded, whimsical or capricious exercise of power. His Orders were thus rendered with grave abuse of discretion. They should be as they are hereby, annulled and set aside.

It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under custodial interrogation, as the term should be properly understood, prior to and during the administrative inquiry into the discovered irregularities in ticket sales in which he appeared to have had a hand. The constitutional rights of a person under custodial interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into play, were of no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him on the first day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be recorded, the record having thereafter been marked during the trial of the criminal action subsequently filed against him as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors on February 8,1986, the day before the investigation, offering to compromise his liability in the alleged irregularities, was a free and even spontaneous act on his part. They may not be excluded on the ground that the so-called "Miranda rights" had not been accorded to Ramos.

His Honor adverts to what he perceives to be the "greater danger x x (of) the violation of the right of any person against self-incrimination when the investigation is conducted by the complaining parties, complaining companies, or complaining employers because being interested parties, unlike the police agencies who have no propriety or pecuniary interest to protect, they may in their over-eagerness or zealousness bear heavily on their hapless suspects, whether employees or not, to give

statements under an atmosphere of moral coercion, undue ascendancy and undue influence." It suffices to draw attention to the specific and peremptory requirement of the law that disciplinary sanctions may not be imposed on any employee by his employer until and unless the employee has been accorded due process, by which is meant that the latter must be informed of the offenses ascribed to him and afforded adequate time and opportunity to explain his side. The requirement entails the making of statements, oral or written, by the employee under such administrative investigation in his defense, with opportunity to solicit the assistance of counsel, or his colleagues and friends. The employee may, of course, refuse to submit any statement at the investigation, that is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would be absurd to reject his statements, whether at the administrative investigation, or at a subsequent criminal action brought against him, because he had not been accorded, prior to his making and presenting them, his "Miranda rights" (to silence and to counsel and to be informed thereof, etc.) which, to repeat, are relevant only in custodial investigations. Indeed, it is self-evident that the employee's statements, whether called "position paper," "answer," etc., are submitted by him precisely so that they may be admitted and duly considered by the investigating officer or committee, in negation or mitigation of his liability.

Of course the possibility cannot be discounted that in certain instances the judge's expressed apprehensions may be realized, that violence or intimidation, undue pressure or influence be brought to bear on an employee under investigation — or for that matter, on a person being interrogated by another whom he has supposedly offended. In such an event, any admission or confession wrung from the person under interrogation would be inadmissible in evidence, on proof of the vice or defect vitiating consent, not because of a violation of Section 20, Article IV of the 1973 Constitution, but simply on the general, incontestable proposition that involuntary or coerced statements may not in justice be received against the makers thereof, and really should not be accorded any evidentiary value at all.

WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the respondent Judge in Criminal Case No. 3488-R, dated August 9, 1988 and September 14, 1988, and he is hereby ordered to admit in evidence Exhibits "A" and "K" of the prosecution in said Criminal Case No. 3488-R, and thereafter proceed with the trial and adjudgment thereof. The temporary restraining order of October 26, 1988 having become functus officio, is now declared of no further force and effect.

Cruz, Gancayco, Griño-Aquino and Medialdea, JJ., concur.

G.R. No. 127073 January 29, 1998

JOSE P. DANS, JR., petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

G.R. No. 126995 January 29, 1998

IMELDA R. MARCOS, petitioner, vs.THE HONORABLE SANDIGANBAYAN (FIRST DIVISION), AND THE PEOPLE OF THE PHILIPPINES,respondents.

 

ROMERO, J.:

A man's signature, even if merely a flourish or even if indecipherable, may signify authority, agreement, acknowledgment and ownership. As indelible as his fingerprints, dental records or DNA genetic map, it denotes trust and honor. But the same trust and honor may be tainted by polluted intentions, as when signing is done in bad faith, or to perpetrate a fraud, to deceive others, or to commit a crime. The petitions at bar will illustrate how one's John Hancock can bring a man, or a woman for that matter, to ruin.

Sometime in 1984, then Minister of Human Settlements Imelda R. Marcos and then Transportation and Communications Minister Jose P. Dans, Jr., petitioners herein, entered into several contracts involving the Light Rail Transit Authority (LRTA) and the Philippine General Hospital Foundation, Inc. (PGHFI). Concurrently and respectively, Marcos and Dans served as ex-oficio Chairman and ex-oficio Vice-Chairman of the LRTA, and as Chairman and Director of the Board of Trustees of the PGHFI. By virtue of these agreements, which were authorized and in fact ratified by the LRTA Board of Directors, two vacant LRTA lots consisting of a 7,340-square meter parcel of land located in Pasay City (the Pasay lot), and a 1,141.20-square meter lot in Carriedo, Sta. Cruz, Manila (the Sta. Cruz lot), were leased out to the PGHFI. Specifically, the LRTA and the PGHFI, represented by Dans and Marcos, respectively, approved three deeds, namely, an "Agreement for the Development of the Areas Adjacent to the Light Rail Transit System Stations and the Management and Operation of the Concession Areas Therein," 1 and two lease agreements 2 dated June 8 and June 18, 1984, covering the Pasay and the Sta. Cruz lots. The terms of the lease agreements were identical except as to the price: the lease would be good for 25 years subject to an annual escalation of 7.5%; PGHFI had the right to sublease the lots; and the monthly lease was P102,760.00 for the Pasay lot and P92,437.20 for the Sta. Cruz lot. Within the same month, the Pasay lot was subleased by PGHFI, through Marcos to Transnational Construction Corporation (TNCC) 3 for P734,000.00 a month, while the Sta. Cruz lot was allegedly 4 subleased to Joy Mart Consolidated Corporation (Joy Mart) 5 for P199,710.00 per month.

Because of these deeds, petitioners were charged on January 14, 1992, with a violation of Republic Act No. 3019 (the Anti-Graft and Corrupt Practices Act), to wit:

Criminal Case No. 17449

The undersigned Special Prosecution Officer I, Office of the Special Prosecutor, hereby accuses IMELDA R. MARCOS and JOSE P. DANS, JR. of Violation of Section 3(g) of RA 3019, as amended, committed as follows:

That on or about September 8, 1982, and for sometime prior or subsequent thereto, in Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused IMELDA R. MARCOS and JOSE P. DANS, JR., public officers, being then the Chairman and Vice-Chairman, respectively, of the Light Rail Transit Authority (LRTA), a government corporate entity created under Executive Order No. 603 of the former President Ferdinand E. Marcos, while in the performance of their official functions, taking advantage of their positions and committing the crime in relation to their offices, did then and there wilfully, unlawfully and criminally conspiring with one another, enter on behalf of the aforesaid government corporation into an agreement for the development of the areas adjacent to the LRTA stations and the management and operation of the concession areas therein, with the Philippine General Hospital Foundation, Inc. (PGHFI), a private enterprise, under terms and conditions manifestly and grossly disadvantageous to the government.

CONTRARY TO LAW.

Criminal Case No. 17450

The undersigned Special Prosecution Officer I, Office of the Special Prosecutor, hereby accuses IMELDA R. MARCOS and JOSE P. DANS, JR. of Violation of Section 3(g) of RA 3019, as amended, committed as follows:

That on or about June 8, 1984, and for sometime prior or subsequent thereto, in Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused IMELDA R. MARCOS and JOSE P. DANS, JR., public officers, being then the Chairman and Vice-Chairman, respectively, of the Light Rail Transit Authority (LRTA), a government corporate entity created under Executive Order No. 603 of the former President Ferdinand E. Marcos, while in the performance of their official functions, taking advantage of their positions and committing the crime in relation to their offices, did then and there wilfully, unlawfully and criminally conspiring with one another, enter on behalf of the aforesaid government corporation into a Lease Agreement covering LRTA property located in Pasay City, with the Philippine General Hospital Foundation, Inc. (PGHFI), a private enterprise, under terms and conditions manifestly and grossly disadvantageous to the government.

CONTRARY TO LAW.

Criminal Case No. 17451

The undersigned Special Prosecution Officer I, Office of the Special Prosecutor, hereby accuses IMELDA R. MARCOS of Violation of Section 3(d) of RA 3019, as amended, committed as follows:

That on or about June 8, 1984, and for sometime prior or subsequent thereto, in Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused IMELDA R. MARCOS, a public officer, being then the Chairman of the Light Rail Transit Authority (LRTA), a government corporate entity created under Executive Order No. 603 of the former President Ferdinand E. Marcos, while in the performance of her official functions, taking advantage of her position and committing the offense in relation to her office, did then and there wilfully, unlawfully and criminally accepted employment and/or acted as Chairman of (the) Philippine General Hospital Foundation, Inc. (PGHFI), a private corporation duly organized under the laws of the Philippines, which private enterprise had, at that time(,) pending business transactions with the accused, in her capacity as Chairman of LRTA.

CONTRARY TO LAW.

Criminal Case No. 17452

The undersigned Special Prosecution Officer I, Office of the Special Prosecutor, hereby accuses JOSE P. DANS, JR. of Violation of Section 3(d) of RA 3019, as amended, committed as follows:

That on or about June 8, 1984, and for sometime prior or subsequent thereto, in Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused JOSE P. DANS, JR., a public officer, being then the Vice-Chairman of the Light Rail Transit Authority (LRTA), a government corporate entity created under Executive Order No. 603 of the former President Ferdinand E. Marcos, while in the performance of his official functions, taking advantage of his position and committing the offense in relation to his office, did then and there wilfully, unlawfully and criminally accepted employment and/or acted as Director of (the) Philippine General Hospital Foundation, Inc. (PGHFI), a private corporation duly organized under the laws of the Philippines, which private enterprise had, at that time(,) pending business transactions with the accused, in his capacity as Vice-Chairman of LRTA.

CONTRARY TO LAW.

Criminal Case No. 17453

The undersigned Special Prosecution Officer, Office of the Special Prosecutor, hereby accuses IMELDA R. MARCOS and JOSE P. DANS, JR. of Violation of Section 3(g) of RA 3019, as amended, committed as follows:

That on or about June 18, 1984, and for sometime prior or subsequent thereto, in Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused IMELDA R. MARCOS and JOSE P. DANS, JR., public officers, being then the Chairman and Vice-Chairman, respectively, of the Light Rail Transit Authority (LRTA), a government corporate entity created under Executive Order No. 603 of the former President Ferdinand E. Marcos, while in the performance of their official functions, taking advantage of their positions and committing the crime in relation to their offices, did then and there wilfully, unlawfully and criminally conspiring with one another, enter on behalf of the aforesaid government corporation into a Lease Agreement covering LRTA property located in Sta. Cruz, Manila, with the Philippine General Hospital Foundation, Inc. (PGHFI), a private enterprise, under terms and conditions manifestly and grossly disadvantageous to the government.

CONTRARY TO LAW.

In short, Marcos and Dans were separately charged under Criminal Case Nos. 17451 and 17452 for accepting employment in and/or acting as Chairman and Director, respectively, of the PGHFI while the latter had pending business (the lease agreements) with the LRTA, which they both also headed. With regard to the other cases, Criminal Case Nos. 17449, 17450 and 17453, the accusations against both of them stemmed from the contracts they signed in representation of the LRTA and of the PGHFI which were allegedly entered into "under terms and conditions manifestly and grossly disadvantageous to the government."

When arraigned, petitioners pleaded "not guilty" to all of the charges. Before trial could commence, Dans moved for the advance examination of defense witness Ramon F. Cuervo, Jr., a real estate broker, appraiser and friend of Dans who, as an expert witness, was in a position to inform court that the agreed lease prices stated in the subject agreements were fair based on standard industry valuation standards. The court a quo granted said motion, and Cuervo was allowed to testify on August 12, 13, and 19, 1992. During this time, Marcos never questioned Cuervo and later expressed that she had no desire to further examine him. 6 Five days after the final hearing of Cuervo's testimony, the trial of the five cases opened with the formal offer of the prosecution's documentary evidence, which included, inter alia, the five agreements mentioned earlier. On November 23, 1992, the court issued an order admitting all the exhibits except Exhibits "D" and "E" as to Dans, who challenged the two sublease agreements, and Exhibit "E-1" as to Marcos, who, while accepting the validity of said sublease agreements, nevertheless questioned the authenticity of her signature thereon.

In Criminal Case No. 17543, Dans filed a Motion to Dismiss (demurrer to evidence) dated December 7, 1992, but the court

denied the same, as well as his motion for reconsideration thereof.

By the time the case was submitted for decision, Marcos had neither submitted a formal offer of evidence, despite notice of the court's orders 7 to do so, nor the required memorandum. She did file a motion for inhibition of the justices of the Sandiganbayan's First Division on the ground of pre-judgment of her case based on the court's denial of Dans' demurrer to evidence, but this was denied in the court's resolution of May 20, 1993.

On September 24, 1993, the court a quo rendered judgment, 8 acquitting petitioners in Criminal Case Nos. 17449, 17451, and 17452, but convicting them in Criminal Case Nos. 17450 and 17453. The decretal portion of the assailed decision is reproduced hereunder:

WHEREFORE, judgment is now rendered.

1. ACQUITTING the accused IMELDA R. MARCOS and the accused JOSE P. DANS, JR. of the charge in Criminal Case No. 17449, there being no manifest and gross disadvantage brought about by the contract dated September 8, 1982.

2. ACQUITTING accused IMELDA R. MARCOS in Criminal Case No. 17451, it not having been demonstrated that the Information charging her had given her adequate notice of the acts for which she could be held liable under the law;

3. ACQUITTING accused JOSE P. DANS, JR. in Criminal Case No. 17452, it not having been demonstrated that the Information charging him had given him adequate notice of the acts for which he could be held liable under the law;

and considering that the charges against them have been proved beyond reasonable doubt.

4. CONVICTING accused IMELDA R. MARCOS and JOSE P. DANS, JR. in Criminal Case No. 17450 under Sec. 3(g) of R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, and hereby imposes upon each accused the penalty of imprisonment for an indeterminate period of nine (9) years and one (1) day as minimum to twelve (12) years and ten (10) days as maximum.

Both accused shall also suffer the additional penalty of perpetual disqualification from public office as provided in Sec. 9 of R.A. No. 3019;

5. CONVICTING accused IMELDA R. MARCOS and JOSE P. DANS, JR. in Criminal Case No. 17453 under Sec. 3(g) of R.A. No. 3019, otherwise known as the Anti-Graft and Corrupt Practices Act, and hereby imposes upon each accused the penalty of imprisonment for the indeterminate period

of nine (9) years and one (1) day as minimum to twelve (12) years and ten (10) days as maximum.

Both accused shall also suffer the additional penalty of perpetual disqualification from public office as provided in Sec. 9 of R.A. No. 3019.

The Ombudsman is given thirty (30) days from today within which to make a determination of whether or not the other members of the Board of Directors of the Light Rail Transit Authority during the relevant periods with respect to the lease contracts dated June 8, 1984 and June 18, 1984 executed by said Authority with the Philippine General Hospital Foundation, Inc. may also be prosecuted under Sec. 3(g) of R.A. No 3019, and to report to this Court at the end of said period whatever determination he has made including the steps intended to be taken hereon towards a new preliminary investigation, if the same is appropriate.

The bonds posted for the provisional liberty of accused IMELDA R. MARCOS and accused JOSE P. DANS, JR. in Criminal Case No. 17449, No. 17451 and No. 17452 are hereby CANCELLED.

SO ORDERED.

Petitioners filed their respective motions for reconsideration of the court's decision on October 8, 1993. The Office of the Solicitor General also filed a motion for partial reconsideration on the same date, seeking civil indemnity for the People of the Philippines. On November 13, 1996, respondent court promulgated two resolutions, one denying the motion of Dans, 9 and another denying that of Marcos and modifying the assailed September 24, 1993, decision with the addition of a sixth paragraph in the dispositive portion which dealt with the civil liability of petitioners, viz.: 10

6. Accused IMELDA R. MARCOS and JOSE P. DANS, JR. are hereby ordered jointly and solidarily to reimburse the Light Railway Transit Authority for the prejudice that they have accused to said Light Railway Transit Authority through the lease contracts which they executed.

(a) Under Criminal Case No. 17450, the sum of THIRTY TWO MILLION ONE HUNDRED SEVENTY TWO THOUSAND PESOS (P32,172,000.00);

(b) Under Criminal Case No. 17453, the sum of NINETY TWO MILLION TWO HUNDRED SIXTY EIGHT THOUSAND EIGHT HUNDRED FORTY PESOS (P92,268840.00).

Aggrieved, petitioners separately elevated their case to this Court for a review on the following grounds:

G.R. No. 127073

I. Respondent Court erred in denying petitioner's demurrer to evidence in Criminal Case No. 17453 on the basis of baseless assumptions and conjectures not established by evidence. Worse, in violation of mandatory rules of evidence, the denial of the demurrer was made to rest on the advance, conditional testimony of defense witness Ramon Cuervo which had not yet been offered in evidence.

II. Respondent Court erred in concluding that the two lease contracts in question were manifestly and grossly disadvantageous to the government despite unrebutted evidence that their terms and conditions were fair and reasonable and did not prejudice the Government.

III. Respondent Court erred when it assumed without evidentiary basis that LRTA had put up or would put up buildings on the leased land.

IV. Respondent Court erred in holding that the lease contracts were also grossly disadvantageous to the Government because "non-payment of rentals . . . was not actionable unless the rentals were in arrears for one year", citing the stipulation. "Should there be a delay in any payment of the rental consideration equivalent to one year, the lessor shall have the right to take possession of the premises, the property and improvements thereon, the ownership of all improvements thereby accruing to the lessor. (Stip. II, par. 4).

V. Assuming without admitting that LRTA would receive less than fair rental under the disputed lease contracts, respondent Court erred when it considered injury to LRTA as necessarily an injury to the Government, notwithstanding that such supposed injury to LRTA was offset by the corresponding benefit enuring to the Philippine General Hospital (a government hospital funded by government funds), which is inconsistent with the theory that the disputed lease contracts were disadvantageous to "the Government." Under Sec. 3(g) of R.A. No. 3019 which seeks to protect public interest in general by condemning contracts disadvantageous to the Government, the term "government" is used in its widest sense so as to include "the national government, the government-owned and government-controlled corporations, and all other instrumentalities or agencies of the Republic of the Philippines and their branches." [Sec. 2(a)].

VI. While respondent Court was duty-bound to be just and impartial, it failed to give petitioner a fair trial, who was thereby denied due process of law. Respondent Court was plainly biased against, if not

downright hostile to, petitioner; it unfairly allied itself with the prosecution, which made it prosecutor and judge at the same time.

VII. Aside from the foregoing, the appealed decision is flawed by fatal infirmities which have effectively denied petitioner due process of law.

G.R. No. 126995

A. The questioned Decision is a nullity because Section 3 (g) of the Anti-Graft and Corrupt Practices Act (RA 3019, as amended) is unconstitutional for being, on its face, void for vagueness.

B. The questioned Decision is a nullity because Section 3 (g) of the Anti-Graft and Corrupt Practices Act (RA 3019, as amended) is unconstitutional for being a "rider."

C. The questioned Decision is a nullity because the Informations in SB Criminal Cases Nos. 17450 and 17453 did not state all the essential facts constituting the offense but instead stated conclusions of law, thereby denying the Petitioner her constitutional right to be informed of "the nature and the cause of the accusation" against her (Sec. 14 (2), Bill of Rights).

D. The questioned Decision is a nullity because the Information in said SB Criminal Cases Nos. 17450 and 17453 charged only two of the total number of members in the Board of Directors of the LRTA and the Board of Directors of the PGH Foundation, who had participated in the collective acts, thereby singling Petitioner and her companion for discriminatory prosecution, in violation of her right to Equal protection of the Laws, which violation existed from the filing of the information and cannot be cured by post hoc proceedings.

E. The questioned Decision is a nullity because of the participation therein of Mr. Justice Garchitorena, whose long-standing bias and hostility towards President Marcos and Petitioner Imelda R. Marcos prevented him from having the requisite "cold neutrality of an impartial judge," violation of her right as an accused person to procedural Due Process of Law.

F. The questioned Decision is a nullity because Petitioner was denied of her Constitutional Right to counsel.

1. Facts of record showing that Petitioner was deprived of and denied her Right to Counsel.

2. Under the circumstances of record, the absence of counsel resulting from imposition of suspension from the practice of law upon her retained counsel, constituted deprivation of or denial of the Right to Counsel.

3. Facts of record showing legal representation of Petitioner Imelda Marcos was not adequate.

G. The questioned Decision is premature and had disregarded the constitutional right of the Petitioner to present evidence in her behalf. Her right to testify in her own behalf is a guaranteed right, the exercise of which is her personal choice alone, and which counsel had no authority to waive in her behalf. Besides, counsel being suspended, he could not have made a waiver. This constitutional right "to be heard by himself and counsel" she is invoking now, as part of her right to due process (Sec. 14 (1) and (2), Bill of Rights).

H. The questioned Decision is a nullity for it was rendered in derogation of Petitioner's subsisting right to be heard and to submit evidence in her defense. The finding of waiver is a prejudicial error. The evidence thereof on the record is tenuous. A waiver by an accused person of the right to be heard in her defense, including her right to testify in her own behalf must be indubitable, and is valid only if personally exercised through her own manifestation in open court.

I. The questioned Decision is a nullity because the crime charged was not proven beyond a reasonable doubt, and the presumption of innocence was not overcome, which is required by Due Process.

1. There was no disadvantage to the Government.

i. PGH Foundation is part of the "Government".

ii. There was no disadvantage to the "Government" because the PGH, which is part of the Government benefitted.

iii. Facts of record, especially the

questioned leases, show no disadvantage.

iv. Conviction was based on pure speculation.

v. Respondent Sandiganbayan (First Division) erred in holding the leases disadvantageous as to rental in absence of evidence existing at the time that higher rentals should have been paid.

vi. Respondent Sandiganbayan erred in holding that rentals for sub-leases were evidence of disadvantage when such sub-leases were made later and negotiated by a charitable foundation deserving of support through higher rentals.

2. Assuming arguendo alleged disadvantage, the same was not manifest nor gross.

3. Petitioner Marcos did not enter into the questioned lease contracts on behalf of the Government.

4. The charge of conspiracy was not proved hence no basis for liability.

5. Conviction was based on weakness of defense evidence and not (on) strength of prosecution's evidence.

J. The questioned Decision and Resolution are null and void because the Respondent Sandiganbayan (First Division) acted without jurisdiction in issuing the questioned Decision and Resolution since the records clearly show that the Court with jurisdiction over these cases is the Special Division of Five Justices created by Admin. Order 288-93 pursuant to Sec. 5 of PD 1606 as amended and not Respondent Sandiganbayan (First Division).

The Court resolved to consolidate the two cases inasmuch as they raise similar issues and seek the same reliefs. The questions may be stated thus:

1) Was respondent court correct in denying the demurrer to evidence of petitioner Dans in Criminal Case No.17453?

After the prosecution had rested its case, Dans filed a Motion to Dismiss (Demurrer to Evidence) dated December 7, 1992, based on Section 15, Rule 119 of the Rules of Court. 11 He argued that the prosecution failed to establish the fact that the lease

agreement covering the Sta. Cruz lot (Exhibit "C") was manifestly and grossly disadvantageous to the government. 12

On February 10, 1993, the court a quo denied the said motion in this wise:

Since per testimony of witness Ramon Cuervo, Jr. (tsn, pp. 20 to 26, August 13, 1992) that considering the nature of the terminal at the Sta. Cruz Station, which would be (the) subject of the lease contract between the Light Rail Transit Authority and the PGH Foundation, Inc. (Exhibit "C"), the rental of the premises in question could go up to P400,000.00 per month if the LRTA would put up the building as against the stipulated rental of P92,437.00 actually entered into between the parties, there would appear cause to believe that the lease contract in question was grossly disadvantageous for (sic) the government.

For this reason, the Demurrer to Evidence of accused Jose P. Dans, Jr. dated December 7, 1992, is DENIED for lack of merit.

Dans questioned the denial on the ground that the demurrer should have been resolved solely on the basis of the prosecution's evidence and even assuming that it could be resolved using the evidence for the defense, the latter must have been previously formally offered. 13

These arguments are specious and must, therefore, be rejected.

Although a demurrer to evidence must be resolved based on the evidence of the prosecution, there is nothing in the rules which would bar the court from taking cognizance of any matter taken up during the trial or which has become part of the records of the case, especially in this instance where the disputed evidence was taken in advance at the request of the defendant himself . Additionally it is erroneous to suppose that Cuervo's testimony was not formally offered at the time because "(t)estimonial evidence is formally offered by the calling of the witness to the stand." 14 Thus, we find merit in the manner by which the trial court justified the denial of Dans' demurrer to evidence,15 viz.:

First, the advance testimony of Mr. Cuervo taken at the instance of Engr. Dans on August 12 and 13, 1992, was already part of the record(s) in these cases when the Demurrer to Evidence was filed by Engr. Dans on December 7, 1992. The testimony was introduced into the record in exactly the same manner as any other testimony would be presented in evidence during trial. . . . .

Being already part of the record in these cases, the advance testimony of Mr. Cuervo could be taken judicial notice of.

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. . . . (J)udicial notice takes the place of proof and is of equal force. As a means of establishing facts it is therefore superior to evidence. In its appropriate field it displaces evidence since, as it stands for proof, it fulfills the objects which the evidence is

designed to fulfill and makes evidence unnecessary.16 Consequently, "the party desiring to establish a fact is relieved, when judicial notice is taken of the fact, from introducing evidence to prove it." 17

Second, having been given in the course of the proceedings in these cases, the testimony of Mr. Cuervo constitutes judicial admission of Engr. Dans who made it part of the record of these cases.

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As in judicial notice of a fact, "admissions made in the course of the judicial proceedings are substitutes for, and dispense with, the actual proof of facts." 18 The party benefited by the admission is relieved of the duty of presenting evidence of the admitted fact and "(t)he court, for the proper decision of the case, may and should consider, without the introduction of evidence, the fact admitted by the parties." 19

Third, since the advance testimony of Mr. Cuervo was given in open court and duly recorded, the Court could not just ignore the solemn declarations therein on the technicality that the testimony had not been formally offered evidence. . . .

In any event, even if the testimony of Cuervo were to be excluded, there was enough evidence proffered by the prosecution, particularly Exhibits "B" (the lease agreement in favor of the PGHFI) and "D" (the sublease agreement in favor of TNCC) which would have more than justified the denial of the demurrer. In other words, notwithstanding Cuervo's testimony, these exhibits constitute solid documentary proof of petitioners' liability under Section 3(g) of R.A. No. 3019, as amended, as will be shown later in our discussion of Issue No. 5, "Was the evidence properly appreciated by respondent court?"

2) Were the informations filed in Criminal Case Nos. 17450 and 17453 sufficient in form?

There appears to be no doubt that the questioned informations are reasonably adequate as to apprise Marcos on the nature and cause of the accusations against her. In the case of Luciano v. Estrella, 20 the Court had occasion to enumerate the elements of the crime under Section 3(g), R.A. No. 3019, namely, (1) that the accused is a public officer; (2) that he entered into a contract or transaction on behalf of the government; and (3) that such contract or transaction is grossly and manifestly disadvantageous to the government. The allegations in the two informations are hereby reproduced for quick reference:

That on or about June 8 [18], 1984, and for sometime prior or subsequent thereto, in Makati, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the accused IMELDA R. MARCOS and JOSE P. DANS, JR., public officers, being then the Chairman and Vice-Chairman, respectively, of the Light Rail Transit Authority (LRTA), a government corporate entity created under Executive Order No. 603 of the former

President Ferdinand E. Marcos, while in the performance of their official functions, taking advantage of their positions and committing the crime in relation to their offices, did then and there wilfully, unlawfully and criminally conspiring with one another, enter on behalf of the aforesaid government corporation into a Lease Agreement covering LRTA property located in Pasay City [Sta. Cruz, Manila], with the Philippine General Hospital Foundation, Inc. (PGHFI), a private enterprise, under terms and conditions manifestly and grossly disadvantageous to the government. 21 (Emphasis supplied).

As can be readily observed, the informations meet the minimum requirements for them to be upheld in court.

It is also alleged that "for a criminal complaint or information to sufficiency inform the accused of the nature and cause of the accusation against him, all the essential facts constituting the offense must be stated therein, and not mere conclusions of law. 22

Assuming that the matters which Marcos wanted to see alleged in the informations are not evidentiary in character, and that they are really vague and ambiguous, other courses of action could have been taken, such as filing a motion for a bill of particulars. This is what the Court precisely suggested in People v. Arlegui, 23 viz.:

A bill of particulars while provided for under Section 6 of Rule 116 is not a popular procedure among lawyers for the accused in criminal cases. For one thing, it may invite an amended information which is not only clearer but may also be stronger and more incriminating. However, it would have clarified and corrected at any early stage the kind of doubt which the accused in this particular case alleged to have entertained. Section 6 of Rule 116 provides:

Sec. 6. Bill of Particulars. — Defendant may, at any time on or before arraignment, mover for or demand a more definite statement or a bill of particulars of any matter which is not averred with sufficient definiteness or particularity to enable him properly to plead or prepare for trial. The motion shall point out the defects complained of and the details desired. 24

The more appropriate procedure under the circumstances would have been an order from the court directing the Fiscal to amend the information because the defect, if there aver was one, was curable by the simplest of amendments or clarifications. (Emphasis supplied)

In fact, the records reveal that Marcos did file such a motion. 25 After the prosecution had filed its answer thereto, she was given an opportunity to file a reply, but she did not, thereby indicating that she was satisfied with what was already stated in the answer.

3) Is Section 3(g), R.A. No. 3019, as amended, constitutional?

The validity of this provision is being assailed by petitioner Marcos on grounds of vagueness and superfluity. She claims that the phrase "manifestly and grossly disadvantageous to the government" is vague for it does not set a definite standard by which the court will be guided, thus, leaving it open to human subjectivity.

There is, however, nothing "vague" about the statute. The assailed provision answers the basic query "What is the violation?" Anything beyond this, the "how's" and the "why's," are evidentiary matters which the law itself cannot possibly disclose in view of the uniqueness of every case. The "disadvantage" in this instance is something that still has to be addressed by the State's evidence as the trial progresses. It may be said that the law is intended to be flexible in order to allows the judge a certain latitude in determining if the disadvantage to the government occasioned by the act of a public officer in entering into a particular contract is, indeed, gross and manifest.

The personal circumstances of an accused are, in this regard,also immaterial, because of the nature of the statute. As the Court declared in Luciano. 26

. . . In other words, the act treated thereunder partakes of the nature of a malum prohibitum; it is the commission of that act as defined by the law, not the character or effect thereof, that determines whether or not the provision has been violated. And this construction would be in consonance with the announced purpose for which Republic Act (No.) 3019 was enacted, which is the repression of certain acts of public officers and private persons constituting graft or corrupt practices or which may lead thereto. Note that the law does not merely contemplate repression of acts that are unlawful or corruptper se, but even of those that may lead to or result in graft and corruption. Thus, to require for conviction under the Anti-Graft and Corrupt Practices Act that the validity of the contract or transaction be first proved would be to enervate, if not defeat, the intention of the Act.

We, therefore, affirm the constitutionality of Section 3(g) of R.A No. 3019, as amended.

4) Was petitioner deprived of her constitutional right to be heard by herself or counsel?

Marcos claims that she was not adequately represented by counsel at the trial due to the suspension from the practice of law of her counsel of record, Atty. Antonio Coronel. It appears from the records, however, that during the absence of Atty. Coronel and sometime thereafter, she was still represented by other lawyers, including Renato Dilag, Luis Sillano, Perfecto V. Fernandez, Jose and Cristobal Fernandez, Vicente D. Millora, Juan T. David, Balbino Diego, and the law firm of Manuel M. Lazaro and Associates. The representation of Atty. Millora and the Fernandezes subsisted even in this Court, where they were later substituted by Atty. Estelito Mendoza. In any event, at the time Atty. Coronel and his replacements withdrew their respective appearances, all evidence had already been presented. It is just that Marcos opted not to present any evidence for her defense,

relying perhaps, on what she perceived to be glaringly weak prosecution evidence. Or it is not impossible or far-fetched that her refusal may have been due to her indifference to or open defiance of the justice system.

5) Was the evidence properly appreciated by respondent court?

In proclaiming his innocence, Dans relied only on his and Cuervo's testimony. Marcos, on the other hand, presented no evidence at all, claiming that she had been prejudged by respondent court. The prosecution submitted documentary evidence and nothing else. The question that must first be answered, thereto, is: Was the State's evidence sufficient to prove beyond a shadow of a doubt that the accused, petitioners herein, committed the crimes for which they were held accountable?

Petitioners were charged with and found guilty of violating Section 3(g) of R.A. No. 3019, as amended. It states thus:

Sec. 3. Corrupt practices of public officers. — In addition to acts or omissions of public officers already penalized by existing law, the following shall constitute corrupt practices of any public officer and are hereby declared to be unlawful:

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(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.

It is clear that for liability to attach under the aforequoted provision, the public officer concerned must have entered into a contract which is "manifestly and grossly disadvantageous" to the Government. The court a quophrased the focal issue in these petitions in this wise: "(A)re exhibits 'A,' 'B' and 'C', the Lease Agreements executed by the LRTA with the PGH Foundation over the LRT property at the stations in Pasay City and Sta. Cruz (Manila) 'manifestly and grossly disadvantageous to the government'?"

A perusal of the prosecution's documentary evidence would readily reveal, even from a layman's perspective, that the Government was seriously prejudiced in the transactions under review.

We concur with the observation of the court a quo that, by itself, Exhibit "A," the "mother contract" which initially granted the PGHFI a virtual exclusive license or franchise over the subject properties, "would neither be prejudicial (n)or beneficial to anybody," because it did not refer to any specific property or consideration. Hence, petitioners were correctly acquitted in Criminal Case No. 17449, which was based on this agreement.

With regard to Criminal Case Nos. 17450 and 17453, the Court is likewise constrained to agree with the trial court that the Government suffered a manifest and gross disadvantage with the execution of the two lease agreements, Exhibits "B" and "C." The facts in this regard are undisputed.

The monthly rental price agreed upon between the LRTA and the PGHFI for the lease of the Pasay lot was P102,760.00, and for the Sta. Cruz lot, it was P92,437.20. Barely ten days later, the very same properties were subleased by PGHFI to private entities for P734,000.00 (for the Pasay lot) and P199,710.00 (for the Sta.

Cruz lot). The difference in the lease price is too enormous to ignore, for no market force could possibly have raised the rental cost in the same site by that margin in just over a week. Even by conservative estimates, the properties could have originally been leased out for at least P500,000.00 27 more. The Government was thereby deprived of at least an additional half a million pesos per month.

Indubitably, there was some kind of conflict of interest in the premises. Marcos and Dans, who were then Cabinet members, occupied the highest positions in the Boards of the LRTA and the PGHFI in a concurrent capacity at the time the questioned deals were made. They were, as it were, playing both ends; but on paper, one was acting for the lessor and the other for the lessee. The fact that petitioners were cleared of the charge that they acted improperly in accepting seats in the PGHFI Board of Trustees at the time when it had pending business transactions with the LRTA, of which they were also officers is of no moment. First, their acquittal in Criminal Case No. 17451 and No. 17452 was simply due to the insufficiency of informations. Second, the accusation in said informations have no bearing whatsoever on the subject matter of the other cases filed against them as signatories to the assailed lease agreements. Even Justice Garchitorena had occasion to advert to this conflict of interest in his resolution of November 13, 1996. 28

The focus now shifts to the testimony of defense witness Ramon Cuervo. An examination of the pleadings filed in these petitions, including all their attachments, would demonstrate the confusion sown by Cuervo's expert opinion. Petitioners insist that Cuervo confirmed their allegation that the lease price stated in the questioned agreements was a fair valuation based on the comparative rental costs in the immediate vicinity of the subject properties. This inference was drawn from Cuervo's calculation of the fair monthly rental value of the Pasay lot at P73,400.00 29and the Sta. Cruz lot at P80,825.64, 30 using standard appraisal techniques in the industry.

The court, on the other hand, interpreted his testimony differently and arrived at a much higher valuation, that is, P210,000.00 a month for the Pasay lot and P400,000.00 monthly for the Sta. Cruz lot.

In view of this conflict in opinion, with petitioners and respondent court holding steadfast to their respective interpretations of Cuervo's testimony, this Court has no alternative but to fall back on the documentary evidence.

Dans, in his motion to dismiss dated December 7, 1992, actually made an implied recognition that the prosecution was able to establish the manifest and gross disadvantage to the government brought about by the lease agreement over the Pasay lot (Exhibit "B"), when he raised no objection to the presentation by the prosecution of the sublease agreement between the PGHFI and TNCC over the same property (Exhibit "D"). Just as he read the lease and sublease agreements over the Sta. Cruz lot (Exhibits "C" and "E") together in order to demonstrate to the court that the prosecution's evidence in Criminal Case No. 17453 was weak, Exhibit "B" must also be appreciated in connection with Exhibit "D" so that the "gross and manifest" disadvantage to the government in Criminal Case No. 17450 can be established.

It must be noted that Dans objected vigorously to Exhibit "E" on the ground that it was a mere photocopy of the original. Despite diligent efforts to locate an original duplicate or an authentic copy, the prosecution could not produce one, so that as to Dans,

said exhibit was not admitted. The same cannot be said of Marcos who never challenged the authenticity of Exhibit "E," although she contested the validity of her signature thereon as representative of the PGHFI, the lessor

For a better appreciation of the evidence at hand, the lease agreements (Exhibits "B" and "C") must be read simultaneously with the sublease agreements (Exhibits "D" and "E"). While Dans signed the lease agreements in behalf of the LRTA, he apparently had no hand in the ensuing sublease of the properties, as indicated by the absence of his signature from the two subsequent agreements. Marcos, on the other hand, represented the PGHFI twice, first in the lease contract and later in the sublease agreements. Within the very brief period of time that separated the lease and the sublease of the LRTA's prime lots, Marcos inevitably generated a situation where the LRTA, a government corporation, 31 lost out to the, PGHFI, a private enterprise 32 headed by Marcos herself.

But, considering that there is an allegation of conspiracy in the informations, the sufficiency of which we have earlier upheld, should the liability of Dans be the same as that of Marcos?

The court a quo entertained no doubt that the prosecution's evidence amply established a conspiracy between Dans and Marcos, thus:

. . . (T)he avowed purpose of both accused in entering into the Lease Agreements was not to earn additional income for the use of the LRTA in its operations, but to give financial assistance to the PGHF in the pursuit of its charitable objectives.

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This expressly admitted purpose explains why the rentals stipulated in the Lease Agreements were so low that when compared with the rentals provided in the Sub-Lease Agreements, the latter deceivingly appear, to borrow the words of Mr. Cuervo, to be "extra-ordinarily high." To have fixed much higher rentals would have been to reduce the income which both the accused would like the PGHF to earn from the lease contracts. And the rentals in the Lease Agreements all the more became very low in light of the fact that the Agreement for the development ofthe areas adjacent to the LRT stations was without any valuable consideration. 33

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In these cases, Engr. Dans and Mrs. Marcos had a common objective, namely, to lease in favor of the PGHF the Pasay City and Sta. Cruz properties under such terms and conditions so favorable to the PGHF as to result in manifest and gross disadvantage to the LRTA. This common purpose they pursued together and in concert with each other, being in the position to do so because they were both ranking officials of the LRTA and the PGHF.

Thus, on September 8, 1982, avowedly desirous to extend financial support to the PGHF (not to the PGH), Engr. Dans, representing the LRTA, and Mrs. Marcos, as chairman of the PGHF, executed an agreement wherein without any valuable consideration, the latter was granted (exclusive) authority to develop areas adjacent to the LRT stations and to operate commercial concessions therein.

In furtherance of their common design and pursuant to their intention to financially benefit the PGHF, Engr. Dans and Mrs. Marcos, acting in their said representative capacities, entered into a Lease Agreement on June 8, 1984, over the Pasay City area for P102,760.00 a month and another Lease Agreement ten days later over the Sta. Cruz Area for P92,437.20 per month. As already demonstrated, the monthly rentals and other stipulations in both contracts placed the LRTA in a manifestly and grossly disadvantageous position.

Engr. Dans and Mrs. Marcos were, therefore, both co-conspirators for having acted in conspiracy with each other and co-principals by direct participation for having taken direct part in the execution of the acts charged. Engr. Dans could not have committed the offenses without Mrs. Marcos and vice-versa.34

While these observations cannot be said to be flawed, they were made only after the trial, in fact, after the assailed decision was promulgated, and these conclusions are the court's alone. The prosecution never attempted to establish a connection between the two defendants in committing the acts for which they were charged. It is a fundamental rule, however, that a charge of conspiracy must be proven just like any other criminal accusation, that is, "independently and beyond reasonable doubt." 35 In this regard, therefore, this Court's opinion that the alleged conspiracy between the petitioners was not sufficiency established by the State's evidence.

6) Were the members of the Sandiganbayan's First Division biased against petitioners? Consequently, is the assailed decision dated September 24, 1993, valid?

Petitioners consider erroneous the active participation of the members of the Sandiganbayan's First Division during the hearing of Cuervo's testimony. The records reveal that, indeed, the court a quo may have participated more actively than usual in the examination of Cuervo in order to elicit from him the information that would nail down the prosecution's basic theory, thus rendering unassailable the conclusions which are now being impugned by petitioners who argue that the extensive questioning of Cuervo 36 made the Sandiganbayan, particularly Justice Garchitorena, not only a judge, but a prosecutor as well.

To be sure, instead of being satisfied with Cuervo's testimonial affirmation of what it had all along considered to be the fair rental value of the properties, the court a quo relied on his responses to numerous postulated queries thereby concluding there was a "gross disparity" in the lease price, as agreed upon by the parties, and the projected rental price, as estimated by

Cuervo. Indeed, if the trial court's conclusions were to be followed, the Pasay lot should fetch a monthly rental of P210,000.00 and the Sta. Cruz lot, P400,000.00. These figures are extrapolated from the potential rental price of the lots, considering its location.

Petitioners point out that the limitations on the right of judges to ask questions during the trial were not observed by the Sandiganbayan. They accuse Justice Garchitorena of acting more of a prosecutor than the impartial judge he is supposed to be, particularly during the examination of Cuervo. Lest we be distracted by this allegation of bias on the part of respondent court, it must be remembered that petitioners were never prejudiced by such questioning, 37 which is about the only thing that would make a string of queries by a judge objectionable. As the following discussion will reveal, the trial court's interpretation of Cuervo's testimony is immaterial because of the sufficiency of the documentary evidence of the questions prosecution to prove the charges against herein petitioners.

In view of the circumstances obtaining here, we find that the trial court's active role in this regard was necessary to clarify the mostly technical aspect of Cuervo's testimony. Respondent court defended its action by declaring that:

It was precisely for the reason that Mr. Cuervo was merely asked by Engr. Dans' lawyer as to the fair and reasonable rentals of the leased premises as without improvements, without the LRT stations being adjacent thereto, and no parts of commercial centers, that the Court, through Presiding Justice Garchitorena, was constrained to propound questions on the fair and reasonable rentals of the leased areas by considering them as not ordinary parcels of land. 38

The Court notes that while petitioners have been making such an outcry since the promulgation of the questioned judgment regarding the line of questioning followed by respondent court, none of them ever objected to such queries during the trial. Neither did they attempt to salvage the situation by asking questions on re-direct examination if they harbored the impression that the court's cross-examination seriously prejudiced their case. This observation was likewise made by the court a quo, to wit:

It is now too late in the day to object to the alleged leading, misleading, and badgering questions of the Presiding Justice Garchitorena and to ask (the court) to expunge the answers thereto from the record. Needless to say, Engr. Dans (and Marcos, for that matter) should have done so when the supposed objectionable nature of the questions and/or answers were propounded or given. (Section 36, Rule 132, 1985 Rules on Evidence). As it happened, he (and she) did not even raise his (and her) objections at the close of the testimony of Mr. Cuervo. He (and she) did not also ask re-direct questions to correct whatever mistakes or misimpressions allegedly crept into Mr. Cuervo's testimony. Instead, he formally offered the entire testimony without making any exceptions or reservations. 39

We should stress that in affirming the conviction of petitioner Marcos, this Court relies mainly on the prosecution's documentary evidence showing the chasmic disparity between the P102,760.00 monthly rental stipulated in Exhibit "B" and the P734,000.00 monthly rental provided in Exhibit "D." The testimony of Cuervo is, at best, opinion only, but the amounts mentioned in the said two exhibits are facts which cannot be altered by opinion, however "expert." Regardless of Cuervo's expert opinion on the probable rental rate of the Pasay lot, the stubborn fact and cold reality is that the PGHFI was able to lease it out for an amount that was seven times more than what it stipulated to pay the government. The sublease (Exhibit "D") is the best monument to the "gross and manifest disadvantage" suffered by the government due to the willful actions of Marcos. Hence, even if the questions of Justice Garchitorena and the answers thereto of Cuervo were totally ignored by this Court, the prosecution's evidence would still firmly stand, and would definitely be more than sufficient to warrant a conviction beyond reasonable doubt.

Going further, petitioners insist that some impropriety attended the promulgation of the challenged decision. This allegation stems from the dissolution of the Special Division earlier created by Justice Garchitorena because of the lack of unanimity among the members of the First Division.

It appears from the records that Justice Narciso T. Atienza initially wanted to acquit the defendants in Criminal Case Nos. 17449, 17451 and 17452, while Justices Garchitorena and Balajadia wanted to convict them in Criminal Case Nos. 17450, 17451, 17452 and 17453. There was, therefore, no unanimous vote in Criminal Case Nos. 17451 and 17452. Thereupon, a Special Division was constituted, with the addition of Justices Augusto M. Amores and Cipriano A. del Rosario. Over an informal luncheon among the members of the newly-created Special Division, 40 however, where the merits of the cases were incidentally discussed, an understanding was reached whereby the two newly-appointed members agreed with Justice Atienza that the defendants should be cleared of the charges in Criminal Case Nos. 17451 and 17452. The stance of those present was that if the actual voting were to take place, the majority would acquit the defendants in Criminal Case Nos. 17451 and 17452. Consequently, Justices Garchitorena and Balajadia decided to change their opinions in said two cases, thus giving the First Division a unanimous vote in all the cases. There seemed to be no further need for the Special Division; hence, it was dissolved. The result is the assailed decision promulgated, as scheduled, on September 24, 1993.

Petitioners point out that once the Special Division was created, the First Division was thereby divested of jurisdiction to decide the case. They also maintain that the informal discussion of the merits of the cases inside a restaurant was unofficial business and, therefore, should have no binding effect.

While it is true that under Section 5 of Presidential Decree No. 1606, as amended, when a unanimous vote is not reached by a division, two other justices shall be designated by the Presiding Justice to sit in a special division, and their majority vote shall be required to reach a valid verdict, this provision does not totally rule out a situation where all members of the 3-justice division eventually come to a common agreement to reach a unanimous decision, thus, making another division's participation in these cases redundant. This is exactly what transpired in this case. The change of heart of Justices Garchitorena and Balajadia, though reached unofficially, may be perceived as a supervening event which rendered the Special Division's functions superfluous. In

any case, the fact that Justice Atienza signed his concurrence cured the defect, if any, in the questioned judgment; again, an illustration of the "curative" effect of one's signature. Petitioners are of the impression that this chain of events was meant to 'railroad' their conviction, thus making the magistrates concerned vulnerable to criticism. While the Court is averse to encouraging this kind of behavior in judges, it is of the view, however, that the assailed decision is in harmony with the basic right of an accused to a speedy disposition of his case. This, to our mind, is more important than any consideration of technical impropriety in resolving a case.

Summing up, was the guilt of petitioners proved beyond a reasonable doubt by the prosecution?

We distinguish.

In Criminal Case No. 17453, we do not concur with the conclusions reached by the court a quo. The culpability of petitioners in this case stems from their entering into the lease agreement (Exhibit "C") over the Sta. Cruz lot under terms and conditions manifestly and grossly disadvantageous to the government, which, in this instance, is the LRTA. To prove this assertion, the prosecution presented in evidence the sublease agreement (Exhibit "E") over the same property showing the disparity in the rental price. While the authenticity of Exhibit "D," which was used to prove the manifest and gross disadvantage to the government occasioned by Exhibit "B," was admitted by the court and by the parties themselves, the validity of Exhibit "E" cannot, even up to this point, be determined with certainty because it is a mere uncertified photocopy of the original. Thus, the "gross and manifest" disadvantage to the government, which Exhibit "E" was supposed to engender, remains an allegation which cannot be proved by other direct evidence. The fact that only Dans objected to its admissibility does not mean that it is valid as to Marcos. As a result, both petitioners should be, as they are hereby, acquitted in Criminal Case No. 17453 on ground of reasonable doubt.

In Criminal Case No. 17450, we must further qualify our judgment.

As regards petitioner Dans, the Court is of the opinion that the prosecution failed to prove his guilt in committing the offenses charged beyond a reasonable doubt. We believe that his liability, if any, could only stem from a knowledge of the terms of the sublease agreements, Exhibits "D" and "E," which formed the core of the Court's appraisal of the manifest and gross disadvantage to the government. Exhibit "E," as already discussed, was correctly disregarded by the court a quo for being unauthenticated. Even though he was a Board Director of the PGHFI, Dans denied any knowledge of the execution of Exhibits "D" and "E," and his denial was never disproved by the prosecution. In fact, his signature does not appear in either sublease agreements. Neither was the alleged conspiracy between him and Marcos established by the prosecution.

It is this Court's opinion, however, that the guilt of petitioner Marcos was proved by the State beyond reasonable doubt. She was charged with violation of Section 3(g) of R.A. No. 3019, as amended, for executing a lease agreement (Exhibit "B") in behalf of the PGHFI, a private enterprise of which she was the Chairman, over a lot located in Pasay City owned by the LRTA, a government corporation of which she was undeniably also the Chairman. The consideration therefor was shown to be unfair and unreasonable upon comparison with the rental price stipulated in the sublease agreement (Exhibit "D") which she

subsequently signed for the PGHFI in favor of TNCC. That she should be held responsible is shown by the presence of her signature in Exhibits "A" to "E," where she acts in different capacities. She cannot, under these circumstances, claim ignorance of the great disparity between the rental price stipulated in the lease and the sublease agreements. Consequently, in Criminal Case No. 17450, the conviction of petitioner Marcos should be, as it is hereby, upheld.

Finally, the Court observes that the Sandiganbayan awarded damages to the People in the amount of P32,172,000.00 in Criminal Case No. 17450 and P92,268,840.00 in Criminal Case No. 17453. This must be accordingly corrected.

Considering that petitioners were acquitted in Criminal Case No. 17453 due to lack of evidence, the Court deems them likewise free from any civil liability since the fact from which such liability might arise no longer exists. 41

On the other hand, in Criminal Case No. 17450, the Court observes that an error has been committed in the computation of the damages to be awarded to the People. The trial court based its figures on the amount it perceived to be the fair rental value of the Pasay lot, as estimated by Cuervo, less the rental price stated in Exhibit "B." Thus, it deducted P102,760.00 (the stipulated monthly rental for the Pasay lot) from P210,000.00 (Cuervo's estimate, as interpreted by the court a quo) to arrive at a difference of P107,240.00, which was multiplied by 12 months to reach an "annual loss" of P1,286,880.00. 42 This amount was then multiplied by the life span of the lease contract, which is 25 years, to come up with the final award of P32,172,000.00. 43

Since the estimates of Cuervo were found to be mere "estimates," it is difficult to imagine why the trial court used them as basis for its calculation of damages. As we have already demonstrated, the gross and manifest disadvantage to the government in Criminal Case No. 17450 was determined by comparing Exhibits "B" and "D." The conviction of Marcos was predicated on the nexus between these two documents, as well as on her obvious conflict of interest in entering into them. By the same token, her civil liability must also be made to depend on these two pieces of evidence. The correct figures should be those stated in Exhibits "B" and "D," to wit: P734,000.00 (the stipulated monthly sublease rental for the Pasay lot) less P102,760.00 (the agreed monthly lease price for said property) times 12 months times 25 years. Thus, P734,000.00 - P102,760.00 = P631,240.00 x 12 months = P7,574,880.00 x 25 years = P189,372,000.00.

WHEREFORE, judgment is hereby rendered:

1) AFFIRMING the CONVICTION of petitioner Imelda R. Marcos in Criminal Case No. 17450, with the modification that said petitioner is hereby ordered to pay the Light Rail Transit Authority (LRTA) the amount of ONE HUNDRED EIGHTY-NINE MILLION, THREE HUNDRED SEVENTY-TWO THOUSAND PESOS (P189,372,000.00), as and by way of reimbursement for the prejudice caused thereto resulting from the execution of the lease contract dated June 8, 1984; and

2) REVERSING the CONVICTION of petitioner Imelda R. Marcos in Criminal Case No. 17453 and of petitioner Jose P. Dans, Jr. in Criminal Case No. 17450 and No. 17453, on ground of reasonable doubt.

Costs against petitioners.

SO ORDERED.

Narvasa, C.J. and Panganiban, J., concur.

 

 

 

Separate Opinions

 

FRANCISCO, J., concurring and dissenting:

I join the ponencia in the acquittal of petitioner Jose P. Dans, Jr. but find myself unable to agree with the conviction of petitioner Imelda R. Marcos, in the light of the peculiar circumstances attendant herein.

This controversy raises seven issues:

1.) the constitutionality of Sec. 3(g) of Anti-Graft and Corrupt Practices Act,

2.) the sufficiency of the criminal informations,

3.) whether petitioner Marcos was properly represented by counsel during the trial,

4.) the validity of the decision rendered by the First Division of Sandiganbayan,

5.) the denial of petitioner Dans' demurrer,

6.) appreciation/weight of the evidence, and

7.) the alleged lack of fair trial.

I concede the correctness of the ponencia's findings as to the: (a) constitutionality of Sec. 3(g) of Anti-Graft and Corrupt Practices Act, (b) sufficiency of the informations, and (c) proper representation of petitioner Marcos by counsel. However, with respect to the constitutionality issued, I hasten to add that contrary to petitioner Marcos' claim, Sec. 3(g) is not a rider and therefore is not violative of the "one-title-one-subject" provision of the Constitution. There is nothing in the subject of Section 3(g), which reads:

(g) Entering, on behalf of the Government, into any contract or transaction manifestly and grossly disadvantageous to the same, whether or not the public officer profited or will profit thereby.

that is not germane to the title of RA 3019 which is "Anti-Graft and Corrupt Practices Act". This law covers wrongdoings committed by public officers. Section 3(g) does not deal with "negligence/mistake" as erroneously argued by petitioner Marcos. Rather it deals with a public officer's act of entering into a "dishonest transaction in relation to official acts" per petitioner Marcos' own definition of "corruption." 1 Even assuming arguendo, that the act punished under Section 3(g) may be considered as negligent by nature, yet the opening statement of Section 3 clearly defined and classified it as one "constituting a corrupt practice." 2 It is within the province of the legislative body to define and describe what acts are criminal and to prescribe the penalty

therefor. In any case, petitioner Marcos failed to show a clear case of unconstitutionality of Section 3(g) and thus was not able to rebut, even by a mere scintilla of evidence or argument, the presumption of constitutionality of the assailed provision.

I, however, strongly disagree with the ponencia's stand on the following points:

1. Re: Demurrer

The Sandiganbayan Resolution dated February 10, 1993 denying petitioner Dans' demurrer to evidence, reads.

Since per testimony of witness Ramon Cuervo, Jr. (tsn., pp. 20 to 26, August 13, 1992) that considering the nature of the terminal at the Sta. Cruz Station, which would be subject of the lease contract between the Light Rail Transit Authority and the PGH Foundation Inc. (Exhibit C), the rental of the premises in question could go up to P400,000.00 per month if the LRTA would put up the building as against the stipulated rental of P92,437.00 actually entered into between the parties, there would appear cause to believe that the lease contract in question was grossly disadvantageous for the government.

For this reason, the Demurrer to Evidence of accused Jose P. Dans, Jr., dated December 7, 1992 is DENIED for lack of merit.

It was highly improper for the Sandiganbayan to have ruled on the demurrer on the basis of the advanced testimony of defense witness Cuervo. A demurrer tests the sufficiency or insufficiency solely of the prosecution evidence and the trial court's resolution in connection therewith should be strictly limited to that. This is unmistakably deducible from Section 15, Rule 119 of the Revised Rules of Criminal Procedure, which states that a demurrer is filed and resolved when it is only the prosecution that has rested its case. Thus:

Sec. 15. Demurrer to evidence. — After the prosecution has rested its case, the court may dismiss the case on the ground of insufficiency of evidence; (1) on its own initiative after giving the prosecution an opportunity to be heard; or (2) on motion of the accused filed with prior leave of court.

If the court denies the motion for dismissal, the accused may adduce evidence in his defense. When the accused files such motion to dismiss without express leave of court, he waives the right to present evidence and submits the case for judgment on the basis of the evidence for the prosecution.

That witness Cuervo's testimony was taken in advance which the Sandiganbayan took judicial notice of, is no justification at all for the premature consideration of said defense evidence. For otherwise, it is tantamount to an adjudication on the merits even before the defense takes its turn to present all evidence it deems necessary to its cause.

2. The jurisdictional fiasco between the First and Special Division.

There is merit in petitioner Marcos' contention that it should not be the First Division (with 3 members namely, Justices Garchitorena, Balajadia and Atienza) but the Special Division (with 5 members namely, Justices Garchitorena, Balajadia, Atienza, Del Rosario and Amores) that has jurisdiction to render a "decision" on the case. The legal requirement of the unanimity in the votes of three members of the (First) Division was not obtained due to the dissent of Justice Atienza. As culled from the "Response" of Justice Garchitorena 3 to petitioner Marcos' motion for his inhibition, in the initial voting, Justices Garchitorena and Balajadia voted to convict petitioner Marcos in Criminal Cases 17450, 17451 and 17449 and to acquit her in Criminal Case 17453, whereas Justice Atienza voted to convict her in Criminal Cases 17450 and 17453 and acquit her in Criminal Cases 17449 and 17451. Thus, on September 15, 1993, Justice Garchitorena issued Administrative Order 288-93 forming a Special Division and designated Justices Amores and Del Rosario to "sit and participate in the rendition of a decision in Criminal Cases 17449 — 17453 People of the Philippines v. Imelda Marcos and Jose Dans." 4 On September 21, 1993, Justices Garchitorena, Balajadia and Del Rosario, in the presence of another Sandiganbayan Justices 5 not a member of either the First or Special Division, discussed their respective positions while having lunch in a Quezon City restaurant. Justice Del Rosario had similar conclusions with that of Justice Atienza. That same day (September 21), Justice Amores sent a written request that he be given 15 days before submitting his "manifestation" which request was considered by Justice Garchitorena as "pointless because of the agreement of Justice Balajadia and the undersigned with the conclusion reached by Justice Atienza." 6 Upon arriving at the Sandiganbayan office on the same day of September 21, 1993 Justice Garchitorena issued Administrative Order 293-93 7dissolving the Special Division "after deliberation and discussion among the members of the First Division," thus, not only pre-empting whatever opinion Justice Amores might render in his manifestation but likewise rendering nugatory the formation of the special division. A decision was earlier scheduled for promulgation on September 24, 1993 which turned out to be the now-assailed decision of the Sandiganbayan First Division.

From the foregoing, it is very disturbing why it was the First Division which rendered a "decision" notwithstanding the fact that the Special Division had already been created precisely because the First Division could no longer render any "decision" for lack of unanimity among its members, as required by Section 5 of the Sandiganbayan law (P.D. 1606 as amended), which reads:

Sec. 5. Proceedings, how conducted; votes required. — The unanimous votes of the three justices in a division shall be necessary for the pronouncement of a judgment. In the event that the three justices do not reached a unanimous vote, the Presiding Justice shall designate two other justices from among the members of the Court to sit temporarily with them, forming a division of five justices, and the concurrence of a majority of such division shall be necessary for rendering a judgment. (emphasis supplied).

Verily, by virtue of the creation of the Special Division, it is axiomatic that the First Division is divested of

jurisdiction to pass judgment over the case in favor of the Special Division. And there is nothing in the law or rules that allows the original division to "re-render" a decision once a Special Division is already in place. Moreover, it was too speculative for Justice Garchitorena to consider as pointless Justice Amores' manifestation. Who knows, Justice Amores' opinion could have swayed the other Justices, and thus a different outcome may have possibly resulted.

Another point. The Sandiganbayan law provides that:

The Sandiganbayan shall have its principal office in the Metro Manila area and shall hold sessions thereat for the trial and determination of all cases filed with it irrespective of the place where they may have arisen, . . . . 8

And its Rules of Procedure particularly clarifies that:

sessions of the Sandiganbayan, whether en banc or division, shall be held in its principal office in the Metropolitan Manila area where it shall try and determine all cases filed with it . . . . 9 (Emphasis supplied)

The Quezon City restaurant where Justices (Garchitorena, Balajadia and Del Rosario) took lunch and where they, as per Justice Garchitorena's account, "discussed their positions in these cases" 10 is not the principal office or an extension of the Sandiganbayan. Neither was there any prior valid authorization to hold sessions therein. Clearly then, whatever discussion and agreement was made among the above-mentioned Justices present in that restaurant cannot be considered as "official business" therefore, had no binding effect.

Moreover, the presence of a non-member of the First Division in the deliberation of the cases likewise taints the decision with irregularity. Needless to state, the actual decision-making process is supposed to be conducted onlyby the designated members of the First Division in strict confidentiality. The "non-member" justice's presence in said deliberation is tantamount to a public disclosure of court proceedings that require utmost secrecy. This, and the jurisdictional fiasco between the First and Special Division as previously discussed, rendered the assailed decision, sad to say, void.

3. Appreciation/Weight of evidence.

The centerpiece evidence for petitioners is the testimony of Mr. Cuervo who, in the light of his unquestioned credentials as a reputable veteran real estate broker and appraiser, 11 qualified as an expert witness. He gave a brief description of what a real estate broker and an appraiser do. A broker earns his living through services by offering for sale properties that had been entrusted to him, or to lease or administer them, or even for mortgage purposes. An appraiser, witness Cuervo continues, gives a knowledgeable opinion on what would be a fair market value for a specific property whether it be for sale, lease, mortgage or exchange. He also gives an opinion on what should be a fair rental for the property, or what should be the selling price of a property if the owner wishes to sell or exchange it with another property. 12

Now to the heart of Cuervo's testimony, hereby reduced to its simplest presentation. In determining fair rental value of properties, first to be determined is the fair market value (FMV) of the property. FMV of properties already for sale in the market is based on the market data approach which considers how much properties in that particular area were sold, how much properties were being offered for sale in said area and also inputs from fellow appraisers and brokers. 13 The size, shape, frontage and configuration of the property are also very relevant in determining FMV. 14 Fair rental is then computed on 6% to 8% of the FMV of the property, this being the most reasonable and commonly used value for long-term leases of land in areas where the value of the land appreciates more rapidly. 15

Thus, for the 7,340 sq. m. Pasay property, which is bare, Cuervo determined its FMV at P1,000.00 to P1,500.00 per square meter. 16 This valuation considered offers for sale, actual sales and appraisal jobs by witness Cuervo's own real estate firm of comparable lots in the same vicinity which, as testified to by witness Cuervo and summarized by the Sandiganbayan, are:

Offers for sale in the "Bulletin Today"

On January 20, 1984 —

629 sq. m. located along Taft Avenue Pasay City, offered for sale by Polo Manrique Realty with an asking price of P2,500 per square meter.

On October 16, 1983 —

RGV Realty offered for sale 1,000 sq. m. with improvement thereon along Taft Avenue, Pasay City, at P1.7 million or an average per square meter of P1,688.

On September 4, 1984 —

R.F. Pula, another broker, offered for sale 300 sq. m. of

lot located on F.B. Harrison near Libertad St., Pasay City, for P1,500 per square meter.

The firm of the witness itself had also made the following appraisal jobs:

On June 7, 1984 —

Property along EDSA and Vizcarra St. close to Taft Avenue with an area of 823 sq. m. at P2,500 per square meter.

On June 6, 1984 —

25 contiguous lots along Taft Avenue, Maria Lim and Donada Streets near De la Salle College with a total area of 12,000 sq. m. at P1,129 per square meter, with the area along Taft Avenue corresponding to 2,156 square meters

at P1,700 per square meter.

On June 1, 1984 —

6 contiguous lots along Taft Avenue, Buendia and Donada Sts. with an area of 3,772 sq. m. at a total value of P7,964,900 or an average of P2,111.58 per square meter. 17

FMV of the entire land, computed on P1,500.00/sq. m., is therefore, P11,010,000.00. Multiplied by the higher value of 8%, P880,800.00 then will be the fair rental value of the Pasay property per annum, 18 or P73,400.00 a month.

For the 1,141.2 sq. m. Sta. Cruz property, Cuervo assigned P10,000.00 to P15,000.00 as FMV per square meter, also by means of "comparables" of offers for sale, appraisals made and information from fellow realtors/appraisers, such as:

On May 28, 1983 —

604 sq. m. lot located along Escolta offered by Uni-Invest Management Corporation at P6,000 per square meter;

On June 13, 1982 —

323 sq. m. lot along Carriedo Street near Plaza Miranda offered for sale by Realtor R.F.

Pula at P18,575.00 per square meter;

On April 5, 1982 —

439 sq. m. lot along Echague St. in Quiapo offered for sale by Honoria Development at P12,000 per square meter.

His company, the Cuervo Appraisers Company, appraised two (2) properties in that year, viz:

On August 1, 1984 —

for purposes of selling, the Odeon Theater at

Rizal Avenue cor. Recto Avenue with an area of 1,580 sq. m. appraised at P14,500 per square meter (excluding the movie house); and

On March 19, 1984 —

The Philippine Commercial International (sic) Bank's site at Plaza Sta. Cruz,

more or less diagonally across Dasmariñas, with an area of 679 sq. m. was appraised at P8,500 per square meter. 19

Fair rental value for this property was pegged at P969,907.68 per annum, or P80,825.64 a month. 20 This assumed that the FMV per sq. m. is P10,623.76 at the same value of 8%.

The defense's position, in sum, is that the two (2) lease agreements could not have been grossly disadvantageous to the government since the stipulated rentals for the Pasay and Sta. Cruz properties (P102,760.00/month and P92,437.20/month, respectively) in fact exceed the uncontradicted fair rental values assigned by expert witness Cuervo for both properties (P73,400.00/month and P80,825.64/month, respectively). The lease agreements, obviously, generated very fair rentals for the government.

But the Sandiganbayan, in convicting petitioners, found a much higher valuation. It said.

So we summarize.

Considering the real estate values given by appraiser Cuervo,

(1) compared with the fair rental value of P80,825.65 under moral circumstances for ordinary properties there, the rental value the Sta. Cruz area of the LRTA property (Exhibit "E") would go up by 5 times or up to P400,000 "if they would use that space available for shops" (p. 23, TSN, August 13, 1992); and

(2) the estimate given by witness Cuervo for the Pasay City Station would still be twice as

much as the stipulated rental in the lease agreement. "It would be that way, your Honor, if they would put up the shops . . . ." (p. 25, id.)

In sum, according to witness Ramon F. Cuervo, Jr., whom accused Dans qualified as a real estate broker and appraiser,

(a) the LRTA property in Pasay City was leased to the PGH Foundation at 1/2 of what the property should have been leased out for; and

(b) the Sta. Cruz property was leased to the PGH Foundation for 1/4 of what that property should have been leased out for.

Obviously there is gross disparity here. 21

The problem with the Sandiganbayan's findings is that it completely ignored the unchallenged testimony of witness Cuervo and instead supplanted the same with valuations based on unfounded assumptions and/or hypothetical situations. For the Pasay property, for instance the Sandiganbayan — particularly Justice Garchitorena, proceeded from his insistent assumed premise that the property was with "substantial amount of improvement." We quote the pertinent sequence of questioning from the transcript of stenographic notes,viz:

ATTY. BELO

Q What percent therefore of the fair market value constitute the rental of this property we are talking about?

A P880,800 per annum, which would be a fair rental.

Q On the other hand, the rental stipulated in this contract is what?

A P1,233,120.00, sir.

Q So the rental stipulated in the contract exceeds what you call fair rental for this property?

A Yes, sir.

PJ GARCHITORENA

Q That is on the presumption that there are no buildings on the land you are renting?

WITNESS

A Yes, your Honor.

Q However, here we are talking of property with substantial amount of improvement?

A I am computing it based on bare land, your Honor. 22 (Emphasis supplied).

xxx xxx xxx

PJ GARCHITORENA

Now, the Court will ask questions.

Q Mr. Cuervo, when you were talking about real estate both in Pasay and in Sta. Cruz, you were talking about buildings and properties that are either empty or of buildings in the same vein of no useful construction or else of ordinary construction.

WITNESS

A In this particular property, the one in Sta. Cruz, the building was demolished.

PJ GARCHITORENA

Q We are talking of Pasay.

WITNESS

A The one in Pasay, I was told some improvements there were not yet existing at that time.

Q Obviously from your information the construction were of no significant value?

A Right.

Q We, of course, know that these properties are. These were the terminals, the important stations of the Light Railway Transport System, and if we did not know then, we know now that these constructions were of heavy designs and because of the nature of

the activity there it will be a higher pedestrian traffic area which for retail purposes would be, presumably, a very important valuable piece of property, do you agree with that?

A Yes, for retail specially.

Q In that light, are you still prepared to tell us that insofar as Pasay is concerned, your appraisal in 1984 would still be rated at the same level that you were rating similar property which were listed among realtors in 1984?

A The value that I gave between P1,000 to P1,500?

Q Yes.

A That is because those improvements were not yet there. I am giving the value of the land as fair (sic, should be bare) not as already a station.

Q So that while, as a general statement, you would say for ordinary realtor in the Pasay area, your listing on Exhibit 4 would be valid. In fact, everybody in this courtroom knows that the property we are discussing here was not an ordinary piece of land?

A Was never an ordinary piece of property before it was built. . . .

Q Insofar as the subject matter now is concerned which is an LRT terminal?

A Yes, sir.

Q Will you now be in a position to make a statement as to what a fair market value of the property would be, if not for

acquisition, . . . . . what would be the value which would give you a fair rental?

A If that land would fair now?

Q Considering what it is being used for.

A The only thing that could be of value is the potential of what rental it could get by retailing but not as station.

Q So, as a retail outlet, or whatever, supposing you are going to lease it so that you could turn around and use it for advertising space, use it for particular stalls, stores, may be jeepney or tricycle terminal or whatever because it is an exchange, would you be in a position to do appraisals for rental value?

A Yes, your Honor.

Q Supposing the LRT at that time had engaged you and say, "Mr. Cuervo, we want to make money additionally out of this area, can you consult with us"?

A We would go on hypothetical. If there were no stores there at this point and time, then we will consider the rental rates of commercial properties of the immediate area, and with the market there we will also go to hypothetical approach to this area. Considering that it is a catchment area where thousands of people would be passing by in front of . . . . .

PJ GARCHITORENA

Q Have you thought of what values you would put there?

A No I did not get to that point.

Q Would you be in a position, no you would not. But obviously, it would be much more than the values you gavr (sic) us on the basis of your listings?

A The value that I gave you in 1983?

Q We are talking of 1984. We are talking about whether Mr. Dans was remiss in that property in 1984. What would be the multiples that you would use if you were the consultant of the LRTA?

A I would go to the prevailing rental rates of CANTIMAR (sic) and all the other stores, and the Baclaran activity, and then . . . .

Q Can you given (sic) us the multiples that you would use if this is the latest rental ub (sic) the area, would it be more, the same or less?

A Definitely more comparing it to Cantimar (sic) and the Baclaran area would probably be 2 to 3 times more.

Q Alright, let's take it at 3. So, your testimony yesterday was what? Do you recall? Your estimate yesterday without inputing the LRT, was what again?

A P63,039.00

PJ GARCHITORENA

Q That was your assumed fair market value for what period?

A Then we have P425,885.

Q Would be for what period, monthly period?

A That is the valuation.

Q No, Mr. Cuervo, we are taking this out in testimony and we want to be able to read well. What was your estimates for the fair rental value per square meter of Pasay, the one that you gave us yesterday.

You gave us a figure yesterday. You were telling us that your land value is ranged from P1,000 to P1,500 in that area. Under this circumstances, what would be your fair rental at that time?

You can use your calculator.

A Taking a high figure of P1,500 times .08 would be P120.00 per square meter, your Honor.

Q Rental?

A Yes, your Honor.

Q So, for the entire property of 7,340 square meters

A P10.00 per square meter.

Q P10.00 per square meter would be fair rental?

A Fair rental at that time

Q With an area of 7,340, you were saying that 73,400 would be of the ordinary property then?

A Yes, your Honor.

Q Now, if we talk of a multiple of 3, then we are talking of P210,000 more or less?

PJ GARCHITORENA

Q Per month, what was the rental agreement under Exhibit 3-C?

ATTY. BELO

It was P102,760 monthly.

PJ GARCHITORENA

Q So, if we are going to look at your figures, your estimated rental of P210,000 per month would be twice as much as the rental fixed in the Lease Contract of the LRTA with the PGH Foundation?

A Yes, your Honor. 23 (Emphasis supplied)

From the assumption/hypothesis that the Pasay property was with "substantial amount of improvement" ("LRT station" of "heavy design" which makes it a "higher pedestrian traffic area"), the Sandiganbayan was able to extract from witness Cuervo a valuation "2 to 3 times more" of Cuervo's original input of P73,400.00/month. The court then multiplied P73,400.00 by the higher multiple of 3, yielding the figure "P210,000.00 more or less" which led it to conclude that the P102,760.00/month lease of the Pasay property is only "1/2 of what the property should have been leased out for." Certainly, witness Cuervo had no choice but to give answers to the series of hypothetical questions hurled by the Sandiganbayan. It is evident, however, that witness Cuervo was keen enough to protect his original figures from being lost in the court's sea of assumptions, as he vigilantly pointed out, at certain points, that:

(1) his computation is based on bare land, 24 and not as station because the improvements mentioned by the Sandiganbayan (LRT terminals, constructions of heavy designs) were not yet there, 25

(2) that some improvements on the property were of no significant value, 26 and

(3) he and the Sandiganbayan were "going on hypothetical". 27

Similar state of affairs was present in connection with the Sta. Cruz property. Here, the Sandiganbayan arrived at P400,000.00/month rental for the property, or about 5 times witness Cuervo's valuation of P80,654.64/month, on the same assumed premise that the property was with "substantial amount of improvement." We go again to the transcript of stenographic notes:

Q Now with regard to the Sta. Cruz terminal, again the figures you gave us in Exhibit 7 which is the lower half of your listings were again on the basis of the property as based on the environment there, all the way to Escolta and going all the way to North to Recto, and the fair lease rental that you gave us,

at that time, would have been what?

A We came out with P969,970 against the P1,109,246 which was the contract.

Q So the contract was . . . .

A Was a little bit high.

Q So the contract was reading at P1.1 million?

A That is right, your Honor?.

Q That was the lease rental of LRTA in favor of PGH Foundation. But we are talking about a general situation. Now, we have this particular station which was not only terminal but a crossroad really because you had people from all sides of Quiapo, Sta. Cruz, Rizal Avenue which will board presumably all the way to Baclaran and all the way to Caloocan. So, you have a bigger mixture of people coming in. What would be your multiple here?

WITNESS

A I would go as high as 5, your Honor.

Q Now, you estimated the proper rental value per month for the property to be what?

A (Witness making his computation), P80,825.64, your Honor.

Q For the total area monthly?

A The total area divided by . . . . . P70.82 per square meter, your Honor. P70.82 per square meter was the multiple for the 1,141 square meters.

Q That was your professional opinion?

A Yes, your Honor.

Q One more time. Your estimated professional opinion at that time, the rental value would be. . . .

A I came out with the figure P969,970.49 for the year.

Q Is this per square meter or for the entire property?

A For the entire property divided by 12, we come out with P80,825.64.

Q So, this would be our fair rental on the optimum condition?

A Yes, sir.

Q Now, our Lease Contract there, Exhibit 6, tells us. . . . .

ATTY. BELO

Under the Lease Contract is P92,437.20 a month.

PJ GARCHITORENA

Q If you say that the fair rental value was P80,000 but because of the construction of the particular nature of the condition of the Sta. Cruz Station or the Carriedo Station, you would use a factor of 5, a multiple of 5, then you would be talking something like P400,000 per month rental. So on that basis, the rental of the LRT authority in favor of the PGH was almost 1/4 as much as you think the rental should have been?

ATTY. BELO

Objection, your Honor, that is not the conclusion. You see this Honorable Court is inputing the value as station now but the witness is testifying on the fair market value at that time.

PJ GARCHITORENA

Correct, but we also ask him to input now the character of the railway station. That is why he said the railway station would make it much valuable 5 times more.

WITNESS

A Yes, if they would use that space available for shops.

PJ GARCHITORENA

Yes, of course. We are talking here of all other things being equal except the fact that we have a railroad station, a cross terminal.

So, here we are saying that P400,000 a month would be a good rental?

A Will they be putting up the building?

PJ GARCHITORENA

It does not matter. See, if the LRT put up the building it will ask for a fair return of the property. Whoever put up the building will charge for the rent.

WITNESS

A If the tenant will put up the building his capital outlay on his own will be beside the rent. While if the LRT will put up the building, then the rent. . . . . . . .

PJ GARCHITORENA

That is correct, we are talking here about cost of money. There is a beautiful phrase for that in finance, how you project the value of the money-etc.

So, these are our figures now, P400,000 more or less is a good asking price or fair rental price insofar as the LRT authority were concerned.

Nonetheless, we are told that the monthly rental for the Sub-Lease in the Sta. Cruz property is how much per much, (sic) for the entire property?

A The Lease Contract is P255,797.50 a month.

Q For the entire property?

A For the entire property.

Q So, based on your estimates it will still be 1/2 as much as you would charge if you were the LRT on the basis of the input? So, even if sub-leased to Trans-National Construction Corporation was still 50 per cent cheaper than what you would have charge if you were going to advice the LRT as to what the rental would be.

A It would be that way, you Honor, if they would put up the shop, this is just the land.

PJ GARCHITORENA

Q Except that we know now that what was being leased was not land but the facilities which would be available in the LRT terminal.

WITNESS

A The building was built by the lessee. 28

Note that counsel for petitioner Dans, Atty. Belo, apparently disturbed by the trend of the Sandiganbayan's questioning, could no longer help but raise the objection that the court is "inputing the value as station now but the witness is testifying on the fair market value at that time." Atty. Belo's objection is well-taken inasmuch as witness Cuervo's uncontradicted valuation of P80,825.64 as fair rental on the "optimum condition" 29 is premised on the fact that the Sta. Cruz property is bare, ". . . just a land" 30 — the Isetann building which used to stand thereon having been demolished prior to the execution of the lease agreement. 31 This is supported by the Sta. Cruz property lease agreement itself which, in its

first "WHEREAS" clause, described the Sta. Cruz property to be "located at the former site of the Isetann Building at the President Hotel Building in the District of Santa Cruz, City of Manila, . . . ." 32

The Sandiganbayan, in the course of the examination, would also appear to make issue of the fact that the PGHFI-TNCC sublease agreement over the Pasay property for P734,000/month 33 was very much higher than the P102,760.00/month rental under the LRTA-PGHFI lease contract or even witness Cuervo's valuation of P73,400.00/month, which witness Cuervo admitted to be "extraordinary high" — the reason/s for which is beyond his knowledge.

Q As a professional because you are presented here as an expert, do you know of any reason why the consideration in the Sub-Lease Agreement was very much higher than the consideration in the Lease Contract after only 19 days?

A I am sorry I cannot give you an answer to that. All I know is that the rental of the sub-lease is extra-ordinary high. There must be some other reasons other than my knowledge. 34

This, however, is useless against petitioner Dans since his signature, it must be stressed, does not appear on the sublease agreement, the only signatory therein in behalf of the PGHFI is, to repeat, petitioner Marcos as Chairman of the Board. Furthermore, petitioner Dans testified that he did not participate in the negotiation for the PGHFI-TNCC sublease contract. 35 It was only a few months after the execution of the sublease agreement that petitioner Dans learned about it. 36 In fact, petitioner Dans, as PGHFI board member, was able to attend only one board meeting — the very first which was the organizational meeting but the PGHFI-TNCC sublease contract was not discussed therein. 37

The Sandiganbayan also sniped at the following stipulation found in both lease contracts:

Should there be a delay in any payment of the rental consideration equivalent to one year, the LESSOR shall have the right to take possession of the premises, the property and improvements thereon, the ownership of all improvements thereby accruing to the LESSOR. 38

and then proceeded to say that:

As if this disadvantage were not enough, in both acts, non-payment of rentals by the PGH Foundation was not actionable unless the rentals were in arrears for one year (par. II, 4, Exhibits "B" and "C"). The LRTA could be, therefore, deprived of the enjoyment of

the rentals from its two valuable pieces of real estate or of the interest income therefrom for almost one year without any recourse for the LRTA. And if the LRTA needed any money which it could have otherwise gotten from the rentals of the properties, it would have to borrow money from other sources and pay interest for eleven (11) months because the PGH Foundation had to be in arrears for twelve (12) months before the LRTA could take any action.

This was not only being over generous; it was cross abandonment of any effort to get decent terms for the LRTA. 39

This is a very narrow interpretation of said stipulation. I subscribe to petitioner Dans' view that the stipulation gives the LRTA as lessor the "additional right" to recover possession of the two (2) leased properties and to acquire ownership of all improvements introduced thereon if and when PGHFI incurs arrears equivalent to one year rental. It certainly does not bar the LRTA from availing of other legal remedies not expressly contained in the contract, for the principle is well settled that an existing law enters into and forms part of a valid contract without need for the parties expressly making reference to it. 40

The bottomline of it all is that the evidence, as I see it, tilts heavily in favor of petitioners. Conviction must rest, as well-settled jurisprudence tells us, not only the weakness of the defense but on the strength of the prosecution. 41"When the prosecution fails to discharge its burden, an accused need not even offer evidence in his behalf." 42 The weakness of the State's case is made glaringly evident not only because the documentary evidence it presented do not, by themselves, prove the crime/s charged against petitioners, but by its dismal failure to debunk witness Cuervo's expert testimony in open court. And the Sandiganbayan cannot save the day for the prosecution by considering as evidence testimony made in response to its hypothetical questions that find no basis at all on the records. The guiding rule is that hypothetical questions must include only facts that are supported by evidence and should embody substantially all facts relating to the particular matter upon which an expert opinion is sought to be elicited, but they need not include all facts pertinent to the ultimate issue. 43 The chief test, therefore, of the competency of a hypothetical question is whether it is a full and fair recital of all the essential evidence disclosed by the record on the particular issue which is involved. But where (as in this case) the question assumes facts in direct conflict with the undisputed evidence, or omits material facts upon which a determination of the problem depends, the hypothetical questions become misleading and it is then likely to lead the witness to a false conclusion. 44 Thus, the testimony given by witness Cuervo is, to my mind, the most telling evidence in this case, for testimony to the value of real estate by experts whose opinions are derived from an intimate knowledge of the property in question and of the sales made in the immediate vicinity carries great weight 45 — if not the greatest weight when, as in this case, it is uncontradicted.

4. The undue interference of the Sandiganbayan Justices in the presentation of the case.

The transcript of stenographic notes supports petitioner Dans' charge of "unfair alliance" of the Sandiganbayan with the prosecution during the trial — particularly in the examination of the witnesses.

For starters, the court questions were so numerous which, as per petitioner Dans' count, totalled 179 compared to prosecutor Queruben's questions which numbered merely 73. 46 More noteworthy, however, is that the court propounded leading, misleading and baseless hypothetical questions all rolled into one. And what appears to be the central assumption of the court is the following:

xxx xxx xxx

Q So the rental stipulated in the contract exceeds what you call fair rental for this property?

A Yes, sir.

PJ GARCHITORENA

Q That is on the presumption that there are no buildings on the land you are renting?

WITNESS

A Yes, your Honor.

Q However, here we are talking of property with substantial amount of improvement?

A I am computing it based on bare land, your Honor. 47 (Emphasis ours)

xxx xxx xxx

PJ GARCHITORENA

Now, the Court will ask questions.

Q Mr. Cuervo, when you were talking about real estate both in Pasay and in Sta. Cruz, you were talking about buildings and properties that are either empty or of buildings in the same vein of no useful construction or else of ordinary construction.

WITNESS

A In this particular property, the one in Sta. Cruz, the building was demolished.

PJ GARCHITORENA

Q We are talking of Pasay.

WITNESS

A The one in Pasay, I was told some improvements there were not yet existing at that time.

Q Obviously from your information the construction were of no significant value?

A Right.

Q We, of course, know what these properties are. These were the terminals, the important stations of the Light Railway Transport System, and if we did not know then, we know now that these constructions were of heavy designs and because of the nature of the activity there it will be a higher pedestrian traffic area which for retail purposes would be, presumably, a very important valuable piece of property, do you agree with that?

A Yes, for retail specially.

Q In that light, are you still prepared to tell us that insofar as Pasay is concerned, your appraisal in 1984 would still be rated at the same level that you were rating similar property which were listed among realtors in 1984?

A The value that I gave between P1,000 to P1,500?

Q Yes.

A That is because those improvements were not yet there. I am giving the value of the land as fair not as already a station.

Q So that while, as a general statement, you would say for ordinary realtor in the Pasay area, your listing on Exhibit 4 would be valid. In fact, everybody in this courtroom knows that the property we are discussing here was not an ordinary piece of land?

A Was never an ordinary piece of property before it was built . . . . . .

Q Insofar as the subject matter now is concerned which is an LRT terminal?

A Yes, sir. 48 (Emphasis ours)

Aware that witness Cuervo's assessments of FMV of the property pertains to bare land, respondent court (PJ Garchitorena), during the examination of the witness, cunningly entices and misleads the latter that the subject conversation is a piece of land with substantial improvements. A priori convinced that the rentals were disadvantageous to the government, the court was not only assuming, but likewise insisting upon Cuervo that the valuation he gives pertains to land with improvements contrary to what the witness had testified that what he is giving value is a bare land.

From this "mother" assumption flowed the continuous string of follow-up assumptions of the court scattered all over the transcript of stenographic notes. Thus:

(For the Pasay Property)

Q Will you now be in a position to make a statement as to what a fair market value of the property would be, if not for acquisition, . . . . . what would be the value which would give you a fair rental?

A If that land would fair now?

Q Considering what it is being used for.

A The only thing that could be of value is the potential of what rental it could get by retailing but not as station.

Q So, as a retail outlet, or whatever, supposing you are going to lease it

so that you could turn around and use it for advertising space, use it for particular stalls, stores, may be jeepney or tricycle terminal or whatever because it is an exchange, would you be in a position to do appraisal for rental value?

A Yes, your Honor.

Q Supposing the LRT at that time had engaged you and say, "Mr. Cuervo, we want to make money additionally out of this area, can you consult with us"?

A We would go on hypothetical. If there were no stores there at this point and time, then we will consider the rental rates of commercial properties of the immediate area, and with the market there we will also go to hypothetical approach to this area. Considering that it is a catchment area where thousands of people would be passing by in front of . . . . . . . . . . .

PJ GARCHITORENA

Q Have you thought of what values you would put there?

A No I did not get to that point.

Q Would be in a position, no you would not. But, obviously, it would be much more than the values you gavr (sic) us on the basis of your listings?

A The value that I gave you in 1983?

Q We are talking of 1984. We are talking about whether Mr. Dans was remiss in that property in 1984. What would be the multiples that you would us if you

were the consultant of the LRTA?

A I would go to the prevailing rental rates of CANTIMAR (sic) and all the other stores, and the Baclaran activity, and then . . . .

Q Can you given us the multiples that you would use if this is the latest rental ub (sic) the area, would it be more, the same or less?

A Definitely more comparing it to Cantinmar (sic) and the Baclaran area would probably be 2 to 3 times more.

Q Alright, let's take it at 3. So, your testimony yesterday was what? Do You recall? Your estimate yesterday without imputing the LRT, was what again?

A P63,039.00.

PJ GARCHITORENA

Q That was your assumed fair market value for what period?

A Then we have P425,885.

Q Would be for what period, monthly period?

A That is the valuation.

Q No, Mr. Cuervo, we are taking this out in testimony and we want to be able to read well. What was your estimates for the fair rental value per square meter of Pasay, the one that you gave us yesterday.

You gave us a figure yesterday. You were telling us that your land value is ranged from P1,000 to P1,500 in that area. Under this circumstances, what would be your fair rental at that time?

You can use your calculator.

A Taking a high figure of P1,500 times .08 would be P120.00 per square meter, your Honor.

Q Rental?

A Yes, your Honor.

Q So, for the entire property of 7,340 square meters

A P10.00 per square meter.

Q P10.00 per square meter would be fair rental?

A Fair rental at that time.

Q With an area or 7,340, you were saying that 73,400 would be of the ordinary property then?

A Yes, your Honor.

Q Now, if we talk of a multiple of 3, then we are talking of P210,000 more or less?

PJ GARCHITORENA

Q Per month, what was the rental agreement under Exhibit 3-C?

ATTY. BELO

It was P102,760 monthly.

PJ GARCHITORENA

Q So, if we are going to look at your figures, your estimated rental of P210,000 per month would be twice as much as the rental fixed in the Lease Contract of the LRTA with the PGH Foundation?

A Yes, your Honor. 49

(For the Sta. Cruz Property)

Q Now with regard to the Sta. Cruz terminal, again the figures you gave us in Exhibit 7

which is the lower half of your listings were again on the basis of the property as based on the environment there, all the way to Escolta and going all the way to North to Recto, and the fair lease rental that you gave us, at that time, would have been what?

A We came out with P969,970 against the P1,109,246 which was the contract.

Q So the contract was . . . . . . . . .

A Was a little bit high.

Q So the contract was reading at P1.1 million?

A That is right, your Honor?

Q That was the lease rental of LRTA in favor of PGH Foundation. But we are talking about a general situation. Now, we have this particular station which was not only terminal but a crossroad really because you had people from all sides of Quiapo, Sta.Cruz, Rizal Avenue which will board presumably all the way to Baclaran and all the way to Caloocan. So, you have a bigger mixture of people coming in. What would be your multiple here?

WITNESS

A I would go as high as 5, your Honor.

Q Now, you estimated the proper rental value per month for the property to be what?

A (Witness making his computation). P80,825.64, your Honor.

Q For the total area monthly?

A The total area divided by. . . . . . . . . P70.82

per square meter, your Honor, P70.82 per square meter was the multiple for the 1,141 square meters.

Q That was your professional opinion?

A Yes, your Honor.

Q One more time. You estimated professional opinion at that time, the rental value would be. . . . . . . .

A I came out with the figure P969,970.49 for the year.

Q Is this per square meter or for the entire property?

A For the entire property divided by 12, we come out with P80,825.64.

Q So, this would be our fair rental on the optimum condition?

A Yes, sir.

Q Now, our Lease Contract there, Exhibit 6, tells us. . . . . . .

ATTY. BELO

Under the Lease Contract is P92,437.20 a month.

PJ GARCHITORENA

Q If you say that the fair rental value was P80,000 but because of the construction of the particular nature of the condition of the Sta. Cruz Station or the Carriedo Station, you would use a factor of 5, a multiple of 5, then you would be talking something like P400,000 per month rental. So on that basis, the rental of the LRT authority in favor of the PGH was almost 1/4 as much as you think the rental should have been?

ATTY. BELO

Objection, your Honor, that is not the conclusion. You see this Honorable Court is inputing the value as station now but the witness is testifying on the fair market value at that time.

PJ GARCHITORENA

Correct, but we also ask him to input now the character of the railway station. That is why he said the railway station would make it much valuable 5 times more.

WITNESS

A Yes, if they would use that space available for shops.

PJ GARCHITORENA

Yes, of course. We are talking here of all other things being equal except the fact that we have a railroad station, a cross terminal.

So, here we are saying that P400,000 a month would be a good rental?

A Will they be putting up the building?

PJ GARCHITORENA.

It does not matter. See, if the LRT put up the building it will ask for a fair return of the property. Whoever put up the building will charge for the rent. . . .

WITNESS

A If the tenant will put up the building his capital outlay on his own will be beside the rent. While if the LRT will put up the building, then the rent. . . .

PJ GARCHITORENA

That is correct, we are talking here about cost of money. There is a beautiful phrase for that

in finance, how you project the value of the money- etc.

So, these are our figures now, P400,000 more or less is a good asking price or fair rental price insofar as the LRT authority were concerned. Nonetheless, we are told that the monthly rental for the Sub-Lease in the Sta. Cruz property is how much per much, for the entire property?

A The Lease Contract is P255,797.50 a month.

Q For the entire property?

A For the entire property.

Q So, based on your estimates it will still be 1/2 as much as you would charge if you were the LRT on the basis of the input? So, even if sub-leased to Trans-National Construction Corporation was still 50 per cent cheaper than what you would have charge if you were going to advice the LRT as to what the rental would be.

A It would be that way, your Honor, if they would put up the shop. This is just a land.

PJ GARCHITORENA

Q Except that we know now that what was being leased was not land but the facilities which would be available in the LRT terminal.

WITNESS

A The building was built by the lessee. 50

The court questions were far from being clarificatory. They were, in the main, queries that have no basis on the records. It has been said that purely abstract questions, assuming facts or theories for which there

is no foundation in the evidence, are not admissible as a matter of right, although such questions may be permitted on cross-examination for the purpose of testing the knowledge of the witness as to the subject on which he has testified. 51 But cross-examination is the exclusive function of the advocate. Thus, any trend of court questioning which shows even a slight semblance of cross-examination is already offensive to fundamental requirements of due process, for, this Court in "People v. Opida" 52 has admonished that: ". . . the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due process." In "Tabuena vs. Sandiganbayan", 53 this Court en banc highlighted the following observation and limitations of a judge's/justice's participation in the conduct of the trial. Thus:

. . . It is indeed an impressive proportion (referring to the volume of questions of the trial judge), but no such mathematical computation is of itself determinative. However, taking all this in conjunction with the long and vigorous examination of the defendant himself by the judge, . . . , we fear that in its zeal for arriving at the facts the court here conveyed to the jury too strong an impression of the court's belief in the defendant's probable guilt to permit the jury freely to perform its own function of independent determination of the facts.

xxx xxx xxx

This Court has acknowledged the right of a trial judge to question witnesses with a view to satisfying his mind upon any material point which presents itself during the trial of a case over which he presides. But not only should his examination be limited to asking "clarificatory" questions, the right should be sparingly and judiciously used; for the rule is that the court should stay out of it as much as possible, neither interfering nor intervening in the conduct of the trial.

xxx xxx xxx

A trial judge should not participate in the examination of witnesses as to create the impression that he is allied with the prosecution.

We doubt not that the sole motive of the learned judge was to ascertain the truth of the transaction, but it is never proper for a judge to discharge the duties of a prosecuting attorney. However anxious a judge may be for the enforcement of the law, he should always remember that he is as much judge in behalf of the defendant accused of crime, and whose liberty is in jeopardy, as he is judge in behalf of the state, for the purpose of safeguarding the interests of society.

Ordinarily it is not good practice for the presiding judge himself to examine witnesses at length. The circumstances may be such in a given case as to justify the court in so doing. . . . This court, however, has more than once said that the examination of witnesses is the more appropriate function of counsel, and the instances are rare and the conditions exceptional which will justify the presiding judge in conducting an extensive examination. It is always embarrassing for counsel to object to what he may deem improper questions by the court. Then, in conducting a lengthy examination, it would be almost impossible for the judge to preserve a judicial attitude. While he is not a mere figurehead or umpire in a trial, and it is his duty to see that justice is done, he will usually not find it necessary to conduct such examinations. The extent to which this shall be done must largely be a matter of discretion, to be determined by the circumstances of each particular case, but in so doing he must not forget the function of the judge and assume that of an advocate. . . .

While it is true that the manner in which a witness shall be examined is largely in the discretion of the trial judge, it must be understood that we have not adopted in this country the practice of making the presiding judge the chief inquisitor. It is better to observe our time-honored custom of orderly judicial procedure, even at the expense of occasional delays. . . . The judge is an important figure in the trial of a cause, and while he has the right, and it is often his duty, to question witnesses to the end that justice shall prevail, we can conceive of no other reason, for him to take the trial of the cause out of the hands of counsel.

The examination of witnesses is the more appropriate function of counsel, and it is believed the instances are rare and the conditions exceptional in a high degree which will justify the presiding judge in entering upon and conducting an extended examination of a witness, and that the exercise of a sound discretion will seldom deem such action necessary or advisable.

He [the judge] may properly intervene in a trial of a case to promote expedition, and prevent unnecessary waste of time, or to clear up some obscurity, but he should bear in mind that his undue interference, impatience, or participation in the examination of witnesses, or a severe attitude on his part toward witnesses, especially those who are excited or terrified by the unusual circumstances of a trial, may tend to prevent the proper presentation of the cause, or the ascertainment of the truth in respect thereto.

The impartiality of the judge — his avoidance of the appearance of becoming the advocate of either one side or the other of the pending controversy is a fundamental and essential rule of special importance in criminal cases. . . . .

Our courts, while never unmindful of their primary duty to administer justice, without fear or favor, and to dispose of these cases speedily and in as inexpensive a manner as is possible for the court and the parties, should refrain from showing any semblance of one-sided or more or less partial attitude in order not to create any false impression in the minds of the litigants. For obvious reasons, it is the bounden duty of all to strive for the preservation of the people's faith in our courts.

Time and again this Court has declared that due process requires no less than the cold neutrality of an impartial judge. Bolstering this requirement, we have added that the judge must not only be impartial but must also appear to be impartial, to give added assurance to the parties that his decision will be just. The parties are entitled to no less than this, as a minimum guaranty of due process.

Let it thus be stressed anew at this juncture that convictions are based on the actual commission of crimes, to be ascertained with the pure objectivity of the true judge who must uphold the law for all without favor or malice and always with justice. 54

Finally, it is incorrect for the Sandiganbayan, per its Resolution of November 13, 1996 denying petitioner Dans' motion for reconsideration, to say, in response to petitioner's objection anent Presiding Justice Garchitorena's questions during the trial, that:

. . . It is now too late in the day to object to the alleged leading, misleading, and badgering questions of the Presiding Justice Garchitorena and to ask to expunge the answers thereto from the record. Needless to say, Engr. Dans should have done so when the supposed objectionable nature of the questions and/or answers were propounded or given. As it happened, he did not even raise his objections at the close of the testimony of Mr. Cuervo. He did not also ask re-direct questions to correct whatever mistakes or misimpressions allegedly crept into Mr. Cuervo's testimony. Instead, he formally offered the entire testimony without making any exceptions or reservations. 55

In "Tabuena", this Court took cognizance of the Sandiganbayan's active participation in the examination of witnesses even when petitioners did not raise this issue at all either in the trial court or in their appeal before us, justifying the same under the doctrine that "an appeal throws the whole case open to review, and it becomes the duty of the appellate

court to correct such errors as may be found in the judgment appealed from whether they are made the subject of assignments of error or not." 56 What more when, as in this case, this objection has been raised while the case is still within the power of review of the trial court.

Thus, purely from the legal standpoint, with the evident weakness of the prosecution's case and the procedural aberrations that marred the trial, it is simply unsound and impossible to treat differently each petitioner who found themselves in one and the same situation. Indeed, our regained democracy, creditably, is successfully bailing us out from the ruins of the authoritarian regime, and it expects that government efforts in going after the plunderers of that dark past remain unrelenting and decisive. But let us not, in our anxiety to carry out this duty, for a moment forget that our criminal justice system is not a popularity contest where freedom and punishment are determined merely by the fame or infamy of the litigants. "The scales of justice", it has been aptly said, 57 "must hang equal and, in fact, should even be tipped in favor of the accused because of the constitutional presumption of innocence. Needless to stress, this right is available to every accused, whatever his present circumstance and no matter how dark and repellent his past." Culpability for crimes must always take its bearing from evidence and universal precepts of due process — lest we sacrifice in mocking shame once again the very liberties we are defending.

I, therefore, vote also for the acquittal of petitioner Imelda R. Marcos in Criminal Case No. 17450.

Melo, J., concurs and dissents.