1.)G.R. No. L-25788 April 30, 1980

PACIFICO C. DEL MUNDO, petitioner, vs. THE HONORABLE COURT OF APPEALS, ANTONIO, EUGENIA, DELFIN and MARCIANA, all surnamed ALVAREZ, and SIMPLICIO BALCOS, respondents.DE CASTRO, J.:

Petitioner seeks in this petition for certiorari to reverse in toto the decision of the Court of Appeals promulgated on 3 January 1966 in CA-G. R. No. 28276-R, entitled "Antonio Alvarez, Eugenia Alvarez, Delfin Alvarez, Marciana Alvarez, and Simplicio Balcos, plaintiffs-appellants vs. Isidra de la Cruz, Teodora Alvarez and Pacifico C. del Mundo, defendants-appellees, the dispositive portion of which reads: 1

WHEREFORE, the extrajudicial partition executed by Isidra de la Cruz and Teodora Alvarez on July 31, 1956 acknowledged before Notary Public Benjamin N. Domingo and recorded as document No. 143 on page 43, book 1, series of 1956 of his notarial registry, copy of which is attached to the records and marked as Exhibit G is hereby declared null and void and of no force nor effect.

Transfer Certificate of Title No. 32529 of the land records for Quezon City is hereby declared cancelled and of no force and effect. In lieu thereof, the Register of Deeds of Quezon City is hereby ordered to issue a new Transfer Certificate of Title in the names of Antonio Alvarez, Eugenia Alvarez, Delfin Alvarez, as co-owners pro indiviso in the following proportions: To each of Antonio, Eugenia, Delfin, Marciana and Teodora all surnamed Alvarez, 13/75 share in full ownership and 2/75 share in naked ownership, to Isidra de la Cruz 10/75 share in full.

The Court of Appeals found undisputed the following facts. 2

Plaintiffs (herein private respondents) Antonio, Eugenia, Delfin and Marciana all surnamed Alvarez are legitimate children of Agripino Alvarez and his first wife Alejandra Martin. After the death of Alejandra Martin, Agripino Alvarez married Isidra de la Cruz in February 1927 and they had one child named Teodora Alvarez.

On December 23, 1947, Agripino Alvarez died intestate, survived by his widow Isidra and his five children, the four plaintiffs and Teodora.

On July 31, 1956, a public instrument entitled 'Extra-judicial Partition with Absolute Sale of Shares' was executed by the widow Isidra and her daughter Teodora Alvarez (Exhibit G) wherein, after reciting that they are 'the legal and absolute heirs, the first being the wife and the second, is the daughter of the deceased Agripino Alvarez', they adjudicated to themselves in equal shares the property covered by Transfer Certificate of Title No. 42562 of the land records for Rizal and in the same instrument, both Isidra and her daughter Teodora sold the entire property to Pacifico C. del Mundo who registered the instrument in August 1956. As a result of such registration, Transfer Certificate of Title No. 32529 of the land records for Quezon City was issued in the name of del Mundo.

On February 10, 1958, the children of Agripino by his first wife sold to Simplicio Balcos four tenths (4/10) undivided share in the property in question (which they claim as their share in the estate of their father). The deed of sale has never been registered.

On May 31, 1958, said children by the first marriage of Agripino Alvarez and their vendee Simplicio Balcos brought the present action against Isidra de la Cruz and her daughter Teodora Alvarez as well as against the vendee Pacifico del Mundo before the Court of First Instance of Rizal asking that judgment be rendered:

1. Declaring the Extra-Judicial Partition with Absolute Sale of Shares Annex 'B', null and void;

2. Declaring null and void T.C.T. No. 32529, Registry of Deeds for Quezon City, and reviving T.C.T. No. 42562, Registry of Deeds for the Province of Rizal;

3. Declaring the plaintiffs Alvarez' entitled to an undivided share of 1/10 each of the lot in question with right to dispose of the same;

4. Ordering the defendant Pacifica C. del Mundo, married to Ester dela Cruz and plaintiff Simplicio Balcos to enter into and agreement or extra-judicial petition of the property in accordance with their participation as purchasers of the shares of the original heirs;

5. Ordering the defendants to pay attorney's fees in the sum of P1,000.00 and to pay the costs.

After trial the Court of First Instance of Rizal rendered its decision 3 dated 20 June 1960 dismissing private respondents' complaint, holding that the property in question is the paraphernal property of Isidra de la Cruz.

Their motion for reconsideration of the above decision having been denied, private respondents appealed to the Court of Appeals the dispositive portion of whose decision was quoted at the beginning of this decision, said Court sustaining the appeal thereby reversing the judgment of the lower court.

Only petitioner Pacifico del Mundo filed a motion for reconsideration which was, however, denied by the Court of Appeals on 21 February 1966. 4 Hence, the instant petition filed by him to review the decision of the appellate court, following assignment of errors. 5

I

THE COURT OF APPEALS ERRED IN DECLARING THE PROPERTY IN QUESTION AS CONJUGAL PROPERTY OF AGRIPINO ALVAREZ AND ISIDRA DE LA CRUZ AND NOT AS PARAPHERNAL PROPERTY OF ISIDRA DE LA CRUZ ALONE.

II

THE COURT OF APPEALS ERRED IN ORDERING THE CANCELLATION OF TRANSFER CERTIFICATE OF TITLE NO. 32529 OF THE REGISTRY OF DEEDS OF QUEZON CITY WHICH IS IN THE NAME OF HEREIN PETITIONER APPELLANT.

III

THE COURT OF APPEALS ERRED IN ORDERING THE REGISTER OF DEEDS OF QUEZON CITY TO ISSUE A NEW TRANSFER CERTIFICATE OF TITLE IN THE

NAMES OF ANTONIO ALVAREZ, EUGENIA ALVAREZ, DELFIN ALVAREZ, MARCIANA ALVAREZ AND TEODORA ALVAREZ AS CO-OWNERS PRO-INDIVISO IN THE FOLLOWING PROPORTIONS: TO EACH OF ANTONIO, EUGENIA, DELFIN, MARCIANA AND TEODORA, ALL SURNAMED ALVAREZ, 13/75 SHARE IN FULL OWNERSHIP AND 2/75 SHARE IN NAKED OWNERSHIP: TO ISIDRA DE LA CRUZ, 10/75 SHARE IN FULL.

The pivotal question thus presented in this petition is whether the property formerly covered by Transfer Certificate of Title No. 42562 (Rizal) now Transfer Certificate of Title No. 32529 (Quezon City) is the conjugal property of Agripino Alvarez and Isidra de la Cruz or the paraphernal property of the latter alone. Petitioner maintains that it is the paraphernal property of Isidra de la Cruz as ruled by the lower court because of two grounds, namely: 6 "(1) the admission by Agripino Alvarez in Exhibit F, the deed of sale executed by Simplicio Dantes and Emilia Rivera of the property in question to Isidra de la Cruz, that the said property is Isidras paraphernal property'; and (2) the said admission operates as estoppel against Agripino Alvarez and/or his heirs, namely, the respondents-appellees in the instant case, from claiming any interest in said property, adverse to that of Isidra de la Cruz and/or transferee or persons privy to her.

Private respondents, on the other hand, seek to uphold the decision of the respondent Court of Appeals which, as aforestated, ruled in favor of the conjugal nature of the property and discredited the evidence of petitioner, as well as that of his co-defendants in the court a quo, regarding the purchase of the property by Isidra de la Cruz prior to her marriage with Agripino, by saying, inter alia that: 7

... If the sale by Juan Dantes and his wife to Isidra is true and was really not reduced to writing for the reasons given by Simplicio, why is it that Juan Dantes, in executing the deed of sale in favor of Simplicio stated in the deed of sale that he sold the entire lot of over three hectares to Simplicio instead of stating that he previously sold a portion thereof to Isidra and the remainder to Simplicio? Had this been stated in the deed of sale to Simplicio, there would have been no need for Simplicio to execute Exhibit F in favor of Isidra de la Cruz.

Moreover, if the property was really sold by Juan Dantes to Isidra in 1920 or 1921. as claimed by the defendants, why is it that in Exhibit F, Simplicio did not state so? Simplicio stated in said document (Exhibit F) that he was the one selling the lot to Isidra. Had he stated that he was merely transfering to Isidra the smaller lot which was not actually purchased by him from Juan Dantes, there would have been no necessity of making it appear in Exhibit F that the money used by Isidra was her own paraphernalia property.

Apparently, the question is factual for it involves an examination of the probative value of the evidence Presented by the litigants or any of them, 8 in order to determine the true nature of the property in question. While as a rule, the findings of fact of the Court of Appeals are final and conclusive and cannot be reviewed on appeal to this Court, one of the recognized exceptions to said rule is when the conclusion made is manifestly mistaken. 9 We are of the opinion that the ruling of the Court of Appeals is not persuasive, and We are accordingly constrained to hold that it is in error in concluding that the property in question is conjugal.

The testimony of Marcelo Bernal, which "was wholly corroborated by Simplicio Dantes and Valentina San Andres" as correctly observed by the lower court, 10 anent the sale of the questioned property to Isidra in 1920 or 1921 when the latter was then single, it having been admitted that Agripino married Isidra only in February 1927, appears to be unrebutted by the private respondents. They place

reliance mainly on the deed of sale 11 executed by Simplicio Dantes and his wife in favor of Isidra de la Cruz, when the latter was already married and where in said deed, no mention was made about the sale by the original owners to Isidra. They lose sight of the fact, however, that this deed of sale was executed only for the purpose of recognizing or confirming the verbal sale made by the original owners to Isidra in 1920 or 1921, long before her marriage to Agripino in February 1927. This is the very reason why Agripino had to sign in said deed of sale, declaring that "the money with which Lot No. 1189-C was purchased from the spouses Simplicio Dantes and Emilia Rivera is her own money, and does not belong to our conjugal property, and therefore, the said Lot No. 1189-C, is her, Isidra's paraphernal property" (sic). 12 The declaration aforequoted is of the highest evidentiary value being one against the declarant's own interest. It may well be presumed that Agripino would not have made the said declaration unless he believed the same to be true, prejudicial as it is to his children's interests as his heirs, with his first wife. Good faith is always to be presumed, and a person always takes ordinary care of his concerns. 13 Against these presumptions, the contrary must be clearly established and proven by sufficient evidence, which is clearly wanting in the instant case. No explanation was given why the aforesaid declaration should not be given due weight. It is significant to note that the same was made on 28 February 1941 or more than six (6) years prior to Agripino's death on 23 December 1947 without his having repudiated the same. Neither did the private respondents, as heirs, question said declaration. Agripino was, therefore, clearly in estoppel to deny his declaration. As such, he can lay no claim nor interest in the questioned property, nor can the private respondents do so, for the person from whom they claim to have succeeded to the property had no title thereto. Estoppel is effective even on successors in interest.14

Moreover, when the question is exclusively between husband and wife, or between one of them and the heirs of the other, the admission or acknowledgment of one spouse that the money used to purchase the property came from the other spouse, is evidence against the party making the admission or his heirs. 15 Likewise, where the husband has been a party to an act of purchase of immovable property in the name of his wife, which recited that the purchase was made with paraphernal funds, and that the property was to be and remain paraphernal property, neither he nor his heirs can be permitted to go behind the deed and contest the wife's title to the property by claiming that it is conjugal. 16Since the property is the paraphernal property of Isidra, the same having been acquired by her prior to her marriage with Agripino 17 and having been purchased with her exclusive or private funds 18 any declaration to the contrary made by her, as well as that of her child, cannot prevail nor change the character of the property in question. The extra-judicial partition was evidently an expedient only to facilitate the sale without giving rise to any question as to the legality of the transmission of the property to Isidra and his daughter, as the death of Agripino Alvarez may occasion, for the better protection of the vendee, the petitioner herein. If the property were conjugal the private respondents would have been made parties to the extra-judicial partition and made signatories thereto. As the Court of First Instance aptly observed.

The Court believed that the Deed of Extra-Judicial Partition submitted in the case at bar cannot affect or change the paraphernal character of the property in question. ... Since the deceased Agripino Alvarez has formally and categorically declared that he has no right or interest whatsoever in the property in question, the same being paraphernal it follows that his heirs, the plaintiffs herein, have not inherited any portion or right in the property, as the heirs merely step into the shoes of the decedent.

Moreover, the law does not provide that separate property becomes conjugal simply by reason of an extra-judicial partition after the death of one spouse, or by erroneous conclusions or declarations made later. The Court has noticed that defendant Isidra de la Cruz affixed only her thumb-mark on the deed of extra-judicial partition it is therefore obvious that she is illiterate and does not know the technical intricacies of the law of property. Reason and justice demand that acts done beyond the manifest

understanding of illiterates must not be used to deprive them of their acquired rights or their property, or as a weapon to work injustice upon them Hence, the Court is of the opinion that in the instant case the money used in the purchase chase of the property subject of litigation is the exclusive money of defendant Isidra de la Cruz.

From what has been said on the foregoing, We find the first two assigned errors t be well taken. Since� the property involved in this case is the paraphernal property of Isidra, it follows that the Court of Appeals erred in ordering the cancellation of transfer Certificate of Title No. 32529 of the Registry of Deeds of Quezon City which is in the name of herein petitioner. The sale between Isidra and herein petitioner is a perfectly valid sale, although in the document drawn 19 the property was erroneously treated as conjugal. No valid reason is shown to invalidate the same, especially so where the persons, herein private respondents, claiming to be entitled to a portion thereof have been shown to have neither interest nor title thereto.

And finally, the third assigned error is likewise meritorious. As stated beforehand, the Court of Appeal found that the property in litigation is the conjugal property of the spouses Agripino Alvarez and Isidra de la Cruz. Granting that finding to be true, said Court should have first liquidated the conjugal partnership of the spouses and adjudicate one half of the property in favor of the surviving spouse Isidra, in full ownership; 20 and the other half, to the deceased husband's heirs, wherein Isidra shall likewise be entitled to a portion thereof in usufruct equal to that corresponding by way of legitime to each of the legitimate children or descendants who has not received any betterment 21to be taken from the third at the free disposal of the deceased parent. 22 This, said Court did not do. Instead, in designating the fractional shares of Agripino's heirs, it had treated the property as his capital alone. The dispositive portion, therefore, is in conflict with the basic finding of said Court, which actuation was branded by the petitioner as a showing of "seeming partiality. 23 Hence, the questioned decision is a nullity, giving justification for its reversal and for Us to revert to that of the lower court.

UPON THE FOREGOING CONSIDERATIONS, the decision appealed from should be, as it is hereby, REVERSED and the complaint filed by the private respondents' DISMISSED. No pronouncements as to costs.

2.)SECURITY BANK AND TRUST COMPANY VS ERIC GAN

CORONA, J.:

This petition for review on certiorari[1] seeks the reversal of the decision[2] of the Court of Appeals (CA) dated October 18, 2001 in CA-G.R. CV No. 45701, the dispositive portion of which read:

WHEREFORE, finding no reversible error therefrom, the Decision now on appeal is hereby AFFIRMED in toto

SO ORDERED.[3]

The factual antecedents follow.

Petitioner Security Bank and Trust Company is a banking institution duly organized and existing under the laws of the Philippines. In 1981, respondent Eric Gan opened a current account with petitioner at its Soler Branch in Santa Cruz, Manila. Petitioner alleged that it had an agreement with respondent wherein the latter would deposit an initial amount in his current account and he could draw checks on said account provided there were sufficient funds to cover them. Furthermore, under

a special arrangement with petitioner’s branch manager then, Mr. Qui,[4] respondent was allowed to transfer funds from his account to another person’s account also within the same branch.[5] Respondent availed of such arrangement several times by depositing checks in his account and even before they cleared, he withdrew the proceeds thereof and transferred them to the other account. These transactions were covered by what were known as “debit memos” since respondent had no sufficient funds to cover the amounts he transferred.[6]

Later on, respondent purportedly incurred an overdraft or negative balance in his account. As of December 14, 1982, the overdraft balance came up to P153,757.78. According to petitioner, respondent refused to heed petitioner’s repeated demands for payment. For the period December 14, 1982 to September 15, 1990, the total obligation of respondent reached P297,060.01, inclusive of interest.[7]

Thus, in 1991, petitioner filed a complaint for sum of money against respondent to recover the P297,060.01 with 12% interest per annum from September 16, 1990 until fully paid, attorney’s fees, litigation expenses and costs of suit. The case was docketed as Civil Case No. 91-55605 with the Regional Trial Court of Manila, Branch 13.[8]

Respondent denied liability to petitioner for the said amount. He contended that the alleged overdraft resulted from transactions done without his knowledge and consent.

In a decision dated March 31, 1993, the trial court dismissed the complaint. It held that petitioner was not able to prove that respondent owed it the amount claimed considering that the ledger cards it presented were merely hearsay evidence. On petitioner’s appeal, the CA affirmed the trial court’s decision.

Hence, this petition anchored on the following grounds:

I. The honorable Court of Appeals erred in not ruling that petitioner has sufficiently proved its cause of action against respondent; and that the ledger cards and the testimony of Mr. Patricio Mercado constituted the best evidence of the transactions made by the respondent relative to his account.

II. The honorable Court of Appeals erred in not applying the principle of estoppel against respondent who has benefited from the special arrangement accorded to him by petitioner which resulted in an overdraft / negative balance.

III. The honorable Court of Appeals erred in affirming the decision of the trial court.[9]

We deny the petition for lack of merit.

It is well established that under Rule 45 of the Rules of Court, only questions of law, not of fact, may be raised before the Supreme Court. It must be stressed that this Court is not a trier of facts and it is not its function to re-examine and weigh anew the respective evidence of the parties. Factual findings of the trial court, especially those affirmed by the CA, are conclusive on this Court when supported by the evidence on record.[10]

Here, both the trial court and the CA found that petitioner failed to substantiate its claim that respondent knowingly incurred an overdraft against his account. We see no reason to disturb this finding.

To prove its claim, petitioner presented Patricio Mercado who was the bookkeeper who handled the account of respondent and recorded his transactions in a ledger. Based on this ledger, respondent allegedly had a negative balance of P153,757.78. This resulted from transfers of funds from respondent’s current account to another person’s account. These transfers were made under the authority of Qui.[11] Respondent categorically denied that he ever authorized these “funds transfers.”[12]

The entries in the ledger, as testified to by Mercado, were not competent evidence to prove that respondent consented to the transfers of funds. These entries merely showed that the transfers were indeed made and that Qui approved them. Petitioner’s claim that respondent availed of a special arrangement to transfer funds from his account to another person’s account was a bare allegation that was never substantiated. Admittedly, Mercado had no personal knowledge of this arrangement.[13] In fact, when asked about the details of the alleged consent given by respondent to the transfers, he stated that he could not remember because respondent talked to Qui and not to him.[14] Petitioner could have presented Qui whom they alleged allowed the special arrangement with respondent. But it did not.

Neither can we accept petitioner’s argument that the entries made by Mercado in the ledger were competent evidence to prove how and when the negative balance was incurred. Petitioner invokes Section 43 of Rule 130:

Entries in the course of business. – Entries made at, or near the time of the transactions to which they refer, by a person deceased, or unable to testify, who was in a position to know the facts therein stated, may be received as prima facie evidence, if such person made the entries in his professional capacity or in the performance of duty and in the ordinary or regular course of business or duty.

Under this exception to the hearsay rule, the admission in evidence of entries in corporate books required the satisfaction of the following conditions:

1. the person who made the entry must be dead, or unable to testify;

2. the entries were made at or near the time of the transactions to which they refer;

3. the entrant was in a position to know the facts stated in the entries;

4. the entries were made in his professional capacity or in the performance of a duty, whether legal, contractual, moral or religious; and

5. the entries were made in the ordinary or regular course of business or duty.[15]

The ledger entries did not meet the first and third requisites

Mercado, petitioner’s bookkeeper who prepared the entries, was presented to testify on the transactions pertaining to the account of respondent. It was in the course of his testimony that the

ledger entries were presented. There was, therefore, neither justification nor necessity for the presentation of the entries as the person who made them was available to testify in court.[16]

Moreover, Mercado had no personal knowledge of the facts constituting the entries, particularly those entries which resulted in the negative balance. He had no knowledge of the truth or falsity of these entries. We agree entirely with the following discussion of the trial court which was affirmed by the CA:

The plaintiff submits that the ledger cards constituted the best evidence of the transactions made by the defendant with the bank relative to his account, pursuant to Section 43 of Rule 130 of the Revised Rules on Evidence. There is no question that the entries in the ledgers were made by one whose duty it was to record transactions in the ordinary or regular course of the business. But for the entries to be prima facie evidence of the facts recorded, the Rule interpose[s] a very important condition, one which we think is truly indispensable to the probative worth of the entries as an exception to the hearsay rule, and that is that the entrant must be “in a position to know the facts therein stated.” Undeniably, Mr. Mercado was in a position to know the facts of the check deposits and withdrawals. But the transfers of funds through the debit memos in question?

Let us be clear, at the outset, what the transactions covered by the debit memos are. They are, at bottom, credit accommodations said to have been granted by the bank’s branch manager Mr. [Q]ui to the defendant, and they are, therefore loans, to prove which competent testimonial or documentary evidence must be presented. In the fac[e] of the denial by the defendant of the existence of any such agreement, and the absence of any document reflecting it, the testimony of a party to the transaction, i.e., Mr. [Q]ui, or of any witness to the same, would be necessary. The plaintiff failed to explain why it did not or could not present any party or witness to the transactions, but even if it had a reason why it could not, it is clear that the existence of the agreements cannot be established through the testimony of Mr. Mercado, for he was [not in] a position to [know] those facts. As a subordinate, he could not have done more than record what was reported to him by his superior the branch manager, and unless he was allowed to be privy to the latter’s dealings with the defendant, the information that he received and entered in the ledgers was incapable of being confirmed by him.

There is good reason why evidence of this nature is incorrigibly hearsay. Entries in business records which spring from the duty of other employees to communicate facts occurring in the ordinary course of business are prima facie admissible, the duty to communicate being itself a badge of trustworthiness of the entries, but not when they purport to record what were independent agreements arrived at by some bank officials and a client. In this case, the entries become mere casual or voluntary reports of the official concerned. To permit the ledgers, prepared by the bank at its own instance, to substitute the contract as proof of the agreements with third parties, is to set a dangerous precedent. Business entries are allowed as an exception to the hearsay rule only under certain conditions specified in Section 43, which must be scrupulously observed to prevent them from being used as a source of undue advantage for the party preparing them.[17] (citations omitted)

Thus, petitioner did not prove that respondent had incurred a negative balance in his account. Consequently, there was nothing to show that respondent was indebted to it in the amount claimed.

Petitioner’s next argument is that respondent was estopped from denying the claim of petitioner since he benefited from the special arrangement accorded to him resulting in the negative balance.

This must likewise fail. The so-called special arrangement was never established. In addition, there was no evidence that respondent benefited from it. As held by the CA:

The trial court satisfactorily explained the reason for not applying the principle of estoppel against defendant-appellee. As held by the trial court:

“There is no scope here for the application of estoppel against the defendant-appellee, since it was not established that he had ever received copies of the ledgers, and therefore given the opportunity to review the correctness of the entries. As we see it, the case of the [plaintiff suffers from its failure to document its] transactions with its clients, and it is hardly right to close our eyes to that infirmity at the expense of the defendant-appellee.”

The temporary overdraft allegedly accorded by plaintiff-appellant to defendant-appellee has not benefited the defendant-appellee in any manner. The 3 debit memos amounting to P150,000.00 appearing on defendant-appellee’s ledger consisted of fund transfers from and not to defendant-appellee’s account. The transfers resulted [in] the benefit of other accounts, not that of defendant-appellee.[18]

In view of the foregoing, the CA did not err in affirming the decision of the trial court.

WHEREFORE, the petition is hereby DENIED. The assailed decision of the Court of Appeals dated October 18, 2001 in CA-G.R. CV No. 45701 is AFFIRMED in toto.

Costs against petitioner.

G.R. No. 72588 October 15, 1986

JORGE W. JOSE, petitioner,  vs.NATIONAL LABOR RELATIONS COMMISSION, AGUINALDO DEVELOPMENT CORPORATION and JOSE G. RICAFORT, respondents.

MELENCIO-HERRERA, J.:

Premised on lack of employer-employee relationship, the National Labor Relations Commission (NLRC), public respondent herein, denied petitioner's claims for separation pay, unpaid salaries up to December 31, 1977, accumulated sick and vacation leaves, and retirement benefits.

Petitioner Jorge W. Jose started working for Daniel R. Aguinaldo Corporation (DRACOR) on October 1, 1956 as comptroller and later as internal auditor.

Sometime in July of 1975, DRACOR, through its Chairman of the Board, Daniel R. Aguinaldo, Transferred many of its executives and officers to Aguinaldo Development Corporation (ADECOR), with the latter assuming the obligations of the former with respect to tenure of service and other benefits earned while in the employ of DRACOR.

Petitioner's claim that he was one of those transferred to ADECOR is supported by a Memo (Annex "G") reproduced below:

MEMO

TO: MR. JORGE W. JOSE

Internal Auditor[Division Manager

Systems Organization Division

SUBJECT: Company Transfer

In view of the fact that your employment by DRACOR was for the purpose of providing services to and for "ADECOR, you are hereby advised that in view of the termination of the Management Contract between DRACOR and ADECOR, your services shall henceforth be rendered directly to ADECOR. Accordingly, effective as of July 1, 1975, your employer will be ADECOR.

In accordance with the policy on the transfer of seniority or tenure of service for inter-company transfers in the Aguinaldo Enterprises and as agreed to between the two corporations, your seniority status and your original length of service win be assumed by ADECOR in your new position.

We trust that you will continue rendering your best to ADECOR who is now your new employer.

AGUINALDO DEVELOPMENT CORPORATION

(Sgd.)

D.R. AGUINALDO

President

In July of 1976, a new group headed by Jose G. Ricafort, herein private respondent, took over the management and properties of ADECOR.

On December 31, 1977, after having rendered 21 years of starting at DRACOR, petitioner was officially retired from ADECOR as evidenced by the following Memo (Annex " H "), to wit:

January 31, 1978

MEMO:

TO: Mr. J.G. RICAFORT, President

A D E C O R

SUBJECT: Mr. JORGE W. JOSE

Official Retirement - December 31, 1977

Since the position of the subject executive, as Executive Assistant, Office of the Chairman of the Board of Directors, has become unnecessary, I have, therefore,

considered him officially retired as of December 31, 1977, hence this recommended abolition of his position and automatic retirement from ADECOR which both of us committed to him since 1976.

In accordance with our commitments to him which to date remain unimplemented, he should therefore be paid his retirement gratuity as per my memo to him dated January 27, 1978, duplicate copy attached hereto, including all that is due him up to December 31, 1977, in unpaid salaries, accumulated and accrued vacation and sick leaves.

He agreed to waive our commitment to automatically name him as one of the high level executives of the Davao Management Corporation upon his retirement from ADECOR.

This supersedes my letter to you dated March 3, 1977.

(Sgd.)

D. R. AGUINALDO

Chairman

Due to ADECOR's refusal to pay petitioner's retirement pay and other benefits despite repeated demands, the latter filed a complaint with the Ministry of Labor and Employment on March 2, 1979, against ADECOR and its President Jose G. Ricafort, docketed as R4-STF-3-1487-79, praying for payment of his retirement benefits as well as damages. Private respondents moved to dismiss on the primary ground that petitioner was not an employee of ADECOR but retained by Daniel R. Aguinaldo at DRACOR to service other corporations owned by him.

On September 10, 1979, Labor Arbiter Teodorico Dogelio rendered a Decision reading, in part, as follows:

xxx xxx xxx

Definitely, respondents are aware of the existence of the aforesaid Memo of the Chairman of the Board wherein there were affirmed complainant's entitlement to retirement gratuity or separation pay, unpaid salaries up to December 31, 1977, as well as payment of accumulated sick and vacation leaves. But the contents of said Memo, coming from the Chairman of the Board himself, were never denied or disputed.

In addition to the aforementioned Memo, copy of which was attached to the complaint, the following annexes were attached to complainant's position paper:

Annex "A" — Memo to Complainant issued by ADECOR President, authorizing transfer from DRACOR to ADECOR, his original length of service to be assumed by the latter Corporation;

Annex "B" — Complainant's letter of acceptance of his transfer from DRACOR to ADECOR, dated June 30, 1975;

Annex "C' - Certificate of Premium Payments, made in behalf of Mr. Jorge W. Jose, by ADECOR;

Annex "D" — Letter dated October 25, 1975 of complainant to J. G. Ricafort, President, re: computation of Retirement Benefits;

Annex "E" — Letter of D.R. Aguinaldo to ADECOR's President, re: Payment of complainant's Gratuity;

Annex "F" — Letter dated January 27, 1978 of D.R. Aguinaldo to complainant, re: Retirement of J.W. Jose, including payment of all benefits and unpaid salaries; and

Annex "G" — Memo to ADECOR President confirming payment of complainant's benefits.

All the foregoing documents clearly speak of complainant's 'automatic retirement' from ADECOR and his being entitled to gratuity or severance pay, unpaid salaries and payment of accumulated sick and vacation leave credits. Said documents entertain no other interpretation the words are clear and simple. A number of them depict the true intent of the Board Chairman, and reiterates a commitment he had with the President, respondent Jose G. Ricafort, concerning complainant's retirement from the service of ADECOR.

Respondent J. G. Ricafort could have easily executed a sworn statement denying his alleged agreement with the Board Chairman or of the existence of the abovementioned documents, in support of respondent's general allegations of lack of employer-employee relationship, but no such denial or controversion was submitted. Moreover, the allegation of R. M. Carlos that no Memo was issued to the effect that complainant was being transferred from DRACOR to ADECOR, unlike the others, is belied by Annex 'A' of complainant's positoin paper which is a Memo directly addressed to Jorge W. Jose concerning the transfer. And, as argued by the complainant, there is no need to include D. R. Aguinaldo as a party respondent in this case.

In view of all the foregoing, respondent's allegation of lack of employer-employee relationship between them and herein complainant, is deemed unmeritorious and their failure to dispute the legitimacy or legality of the herein claims, make respondents thus liable.

WHEREFORE, responsive to the foregoing, respondent Aguinaldo Development Corporation (ADECOR) is hereby ordered to pay herein complainant, Jorge W. Jose, as follows:

a. Separation/retirement pay

P214,500.00

b. Unpaid salaries/wages from

 

December, 1976 to December

 

31, 1977 P84,500.00

c. Accurred vacation leave of 40 days

 

at the same daily rate P23,683.56

d. Accured sick leave of 40 days

 

e. Atoreney's fees (10% of all

 

unpaid wages) P8,450.00

   

TOTAL P341,430.76

The claim for damages, both moral and exemplary, are hereby dismissed, pursuant to P.D. No'. 1367.

SO ORDERED.

Respondents appealed to the NLRC which, on May 21, 1982, disposed of the case as follows:

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We noted that the respondents question on appeal the genuineness and validity of several documents submitted by the complainant. An intelligent resolution of this case would not be possible without giving the respondents an opportunity to cross-examine the witnesses adduced by the complainant. For this reason and likewise to cure objections to the alleged irregular procedure in the submission of complainant's position paper, we are inclined to give the parties another opportunity to cross-examine the witnesses and/or adduce further evidence, if necessary.

WHEREFORE, the appealed decision is hereby set aside and the record of this case is remanded to the Labor Arbiter of origin for further appropriate proceedings.

Thereupon, Labor Arbiter Dogelio set the case for conference/hearing. However, upon ADECOR's motion for his inhibition, the case was reassigned to Labor Arbiter Lomabao. Similarly, the latter inhibited himself upon private respondents' Motion who imputed to him "personal prejudice and bias". The case was this time reassigned to Labor Arbiter Domingo, who likewise inhibited herself from hearing the case. Finally, the case was reassigned a fourth time to Arbiter, Pelagio Carpio, who on October 17, 1984, rendered a Decision reading, in part, as follows:

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It is argued that complainant had never been an ADECOR employee for the reason that unlike Carlos, Pamintuan, Jr., Lasquety and Trinidad, all of whom were issued inter-office memos advising them of their transfer from Dracor to Adecor, Jose was never issued such memo and, therefore, never became an Adecor employee. It is pointed out that Jose was not among those transferred because someone had to look after and service the other corporations owned by Daniel R. Aguinaldo. Respondents maintain

that documentary evidence exists which show that subsequent to complainant's alleged transfer, he continued to be employed by Dracor and in such capacity represented the interest of Daniel R. Aguinaldo. Thus, in a memo dated August 11, 1976 (after the purported transfer of complainant) addressed to Ricafort and other officers of Adecor (Annex '2'), Daniel Aguinaldo designated and authorized Jose in his absence to attend to all matters pertaining to the other corporations owned by the former. In another memo of even date (Annex '3') Jose was designated and authorized to attend for and in behalf of Aguinaldo 'to all matters pertaining to or relating to (his) accounts receivable from Adecor'. Complainant was again designated in a letter dated August 26, 1976 (Annex '4') to represent and act for and in behalf of Daniel Aguinaldo in the board of directors of respondent firm These designations are incongruous to the position that Jose had become by virtue of a prior transfer, an employee of Adecor. For if complainant was really transferred from the employ of Dracor to Adecor, he would not have represented a particular interest in Adecor. The said correspondence shows that even more than a year after his alleged transfer, complainant was still discharging functions pertaining to his employment with Dracor which was the umbrella corporation formerly providing management services to all corporations comprising the Aguinaldo Enterprises and which represented the interests of Daniel Aguinaldo.

Complainant's statement in paragraph 3 of his complaint that in December 1977 and several years prior thereto, he was the Internal Auditor/Division Manager and Executive Assistant to the Chairman of the Board of Adecor runs counter to the allegation of respondents that complainant was originally employed by Dracor on October 1, 1956. The latter averment is evidenced by Annex '1'. Respondents admit that Dracor transferred many of its high ranking officers to the employ of Adecor in July 1975 but deny that complainant was one of those transferred. If complainant was not one of those transferred, then there would be no employer-employees relationship between respondent Adecor and complainant Jose. But this assumption is overturned by what is contained in the letter dated January 11, 1978 of the Chairman to the President of respondent Adecor (Annex 'A'). Even granting that complainant has been an employee of respondent firm, still he is not entitled to separation pay because he agreed to waive the commitment of Aguinaldo and Ricafort that he be paid his retirement gratuity including all that is due to him up to December 31, 1977 (Annex 'A').

The waiver as indicated above includes unpaid salaries, accumulated and accrued vacation and sick leaves. There is, therefore, no cause of action of complainant because he is already estopped from claiming what is maybe due to him because of his waiver. The irony of this case is that the evidence of the complainant turned out to be the best evidence of the respondent.

IN THE LIGHT OF THE FOREGOING CONSIDERATIONS, the instant complainant of Jorge W. Jose against the Aguinaldo Development Corporation and Jose G. Ricafort should be, as it is hereby, DISMISSED for lack of merit.

This time, it was petitioner's turn to appeal to the NLRC which, on June 20, 1985, dismissed the appeal stating:

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Annex 'A' of the complainant's position paper shows that Jorge W. Jose was transferred to Aguinaldo Development Corporation effective July 1, 1975 signed by the President, D.R. Aguinaldo. This was a year before the takeover of the new management group

headed by respondent Jose G. Ricafort. Respondents contend that since the author of the memorandum was not presented and efforts to implead were vehemently opposed by the complainant, said document is questionable, branded by the respondents as fabricated evidence and as a scheme to pass liability for complainant's benefits to the new management group. Considering that complainant has spent more time with DRACOR than the Aguinaldo Development Corporation, complainant's refusal to implead DRACOR, his former employer, is certainly suspicious and lends credence to the theory of the respondents as mentioned earlier above.

In an affidavit executed on April 19, 1979, Rogelio M. Carlos, Assistant Legal Counsel of ADECOR, positively asserted that the complainant was never an ADECOR employee. He admitted that he is one of those primarily responsible for the preparation of documents on the transfer of employees from DRACOR to Aguinaldo Development Corporation. Unlike Messrs. D. D. Pamintuan, Jr. , A. Z. Lasquety and A. C. Trinidad, and R. M. Carlos, the latter asserted that they were issued inter-office memos, advising them of their transfer from DRACOR to Aguinaldo Development Corporation, but not the complainant Jorge W. Jose. Respondents alleged that the reason was that someone had to look after and service other corporations owned by Daniel R. Aguinaldo, namely ...

xxx xxx xxx

A certification of SSS premiums payments allegedly made in behalf of complainant Jorge W. Jose, which covers the period from July 1975 to November 1976, was presented by the complainant. Aside from the fact that the original copy of the remittance was not presented below, it was shown by respondents that complainant as internal auditor of DRACOR, which was the managing company of the Aguinaldo Enterprises, had a direct and active participation in the preparation of the payroll and SSS reports and remittances as he is one of the authorized signatories in the execution of SSS forms and documents required of the company in compliance with the social security law. In addition, coverage under the Social Security Law, is not the principal factor determinative of employer-employee relationship.

In his complaint, Jorge W. Jose, alleged that 'in December 1977 and several years prior thereto,' he was the Internal Auditor/Division Manager and Executive Assistant to the Chairman of the Board of ADECOR and as such he received a monthly salary of P6,500.00 (paragraph 3 of complaint). However, the employment card of the complainant with D. R. Aguinaldo Corporation (DRACOR) shows he was appointed on October 1, 1956 as Comptroller and the same record does not indicate that he was transferred to Aguinaldo Development Corporation as he claimed (Annex 'l', position paper of respondents). Incidentally, complainant's case for unpaid salaries from December 1976 to December 31, 1977, the reason for such nonpayment was not explained by him coincided with his alleged appointment in December 1977. Moreover, this can not be true because in his own complainant he alleges that he was terminated/retired from the service effective December 31, 1977. (paragraph 5 of the Complaint)

For the above added reasons, we see no cogent reason to disturb the appealed decision.

WHEREFORE, let the instant appeal be, as it is hereby, DISMISSED for lack of merit.

A Motion for Reconsideration, filed by petitioner, was denied for lack of merit in a minute resolution of the NLRC on August 30, 1985.

Hence, the instant Petition on the following grounds:

I

Respondent NLRC capriciously, whimsically, unjustifiably and with grave abuse of discretion amounting to lack of jurisdiction, denied the petitioner's Motion for Reconsideration for alleged lack of merit;

II

Respndent National Labor Relations Commission committed serious errors of law in its� questioned decision of June 20, 1985, to wit:

a) for its arbitrary and gross disregard of very material and/or vital facts clearly established by the evidence on record showing without any doubt at all the existence of employer-employee relationship between Jorge Jose and respondent ADECOR;

b) its gross misappreciation of the evidence adduced by the petitioner made the commission rule wrongly that such employer-employee relationship did not in fact exist; and

c) the questioned decision of June 20, 1985 is not properly substantiated by the evidence on record and is therefore contrary to law.

III

In so doing, the Honorable Commission violated petitioner's right to due process.

The basic issue for resolution is whether or not petitioner was an employee of ADECOR.

The Solicitor General took the affirmative view as against the negative position consistently maintained by the NLRC even before this Court.

To prove his cause, petitioner submitted among others, the following documents attached as Annexes to his Position Paper

1. Memo to petitioner dated July 1, 1975 issued by ADECOR President D. R. Aguinaldo, authorizing transfer from DRACOR to ADECOR, his original length of service to be assumed by the latter corporation (Annex "A").

2. Certificate of SSS premiums payments made in behalf of petitioner by ADECOR (Annex "C").

3. Letter of D. R. Aguinaldo to ADECOR President, Jose G. Ricafort dated March 3, 1977 urging implementation of petitioner's retirement gratuity on the basis of 6 weeks' salary for every year of service, including his unused vacation and sick leaves. In this letter D. R. Aguinaldo acknowledged petitioner's services directly and thru DRACOR ( Annex "E").

4. Letter dated January 27, 1978 of D. R. Aguinaldo addressed to petitioner, Executive Assistant, Office of the Chairman, ADECOR, terminating his services as Executive Assistant to the Chairman of the Board of Directors of ADECOR and considering him officially retired as of December 31, 1977, giving the assurance that all amounts due him would be paid by ADECOR (Annex "F").

5. Memo dated January 31, 1978 of Chairman D.R. Aguinaldo to J. G. Ricafort, ADECOR President, reminding the latter of their commitment to petitioner to pay him retirement gratuity (Annex "6").

6. BIR Withholding tax statements for the years 1975 and 1976 showing income taxes were withheld from petitioner's by his employer-Aguinaldo Development Corporation (ADECOR) (Annex "A" and "B", Reply to respondent's Position Paper dated June 17,1984).

7. Check stubs showing check payments made by respondent ADECOR of petitioner's salaries, transportation and representation expenses (Annex "C", "D", "E ", "F", Id.).

8. Check stub for check payment made by ADECOR to petitioner for his unused sick leave for the year 1975 and prior years.

As against the foregoing official corporate papers, which were executed ante litem motam and which prove an employer-employee relationship, private respondents presented the lone and self-serving affidavit of Rogelio M. Carlos, Assistant Legal Counsel for ADECOR, to the effect that petitioner was never an ADECOR employee. The other arguments of respondents entirely miss the point, for, as correctly argued by the Solicitor General:

On the other hand, no inference of lack of employer-employee relationship is logically or legally permissible from the facts of: (1) petitioner's refusal to implead DRACOR, his former employee; (2) petitioner's employment card with DRACOR contains no indication that he was transferred to ADECOR; (3) petitioner's designation by D. R. Aguinaldo in memos and letter to attend to all matters pertaining to the sister corporations of ADECOR, and to represent said owner in various capacities during his absence while he was abroad. The fact that sometime in 1976 petitioner was given special assignments by D. R. Aguinaldo, Chairman of the Board of Directors of ADECOR, cannot, in the absence of evidence, be construed as 'incongruous' to his positions as Internal Auditor/Division Manager and Executive Assistant to the Chairman of the Board of ADECOR, as found by public respondent. D. R. Aguinaldo, as owner of ADECOR and its sister corporations, besides being the Chairman of the Board of Directors of ADECOR, had ample power to appoint anyone of his employees to temporarily perform additional duties outside of his regular functions at ADECOR, without the consent of anybody, as what he did with petitioner who apparently deserved his trust and confidence as to be chosen to represent D. R. Aguinaldo in the Board of Directors and to take care of the latter's finances from the ADECOR. Moreover, the fact that petitioner was designated to attend to all matters pertaining to the different corporations owned by D. R. Aguinaldo to the exclusion ofADECOR conclusively proves that petitioner was then an employee of the latter corporation.

In refuting petitioner's claim of the existence of employer-employee relationship with respondent corporation, private respondents did no more than state petitioner's evidence to this effect - memo dated July 1, 1976 issued by ADECOR president, D. R. Aguinaldo, authorizing petitioner's transfer from DRACOR to ADECOR (Annex A,

Complainant's Position Paper) - as fabricated. However, they failed to adduce evidence of the falsified nature of the document. Consequently, said memo furnishes satisfactory proof of petitioner's valid transfer of ADECOR and private respondents are under estoppel to deny such fact which would prejudice petitioner.

Clearly, the NLRC gravely abused its discretion in closing its eyes to the strong document proof presented by petitioner in setting aside the Decision of Labor Arbiter Dogelio in petitioner's favor, and in remanding the case back to the Labor Arbiter for further reception of evidence. The finding of Labor Arbiter Carpio that petitioner had waived his benefits was sheer misinformation. What petitioner waived was ADECOR's commitment to automatically name him as an executive of the Davao Management Corporation upon his retirement from ADECOR.

We adopt with approval the following conclusion of the Solicitor General that petitioner was a "victim of injustice".

A perusal of the record will easily convince one and sundry that the petitioner has been a victim of injustice. He has already won a judgment against his employer, herein respondent corporation (Annex F, Petition), but lost it due to the unfair tactics of private respondents. There, Labor Arbiter Teodorico Dogelio upheld the petitioner's claims and found unmeritorious the private respondents' defense of lack of employer-employee relationship between petitioner and the latter, and consequently, ordered payment to petitioner his separation/retirement pay, unpaid salaries, accrued vacation and sick leaves, and attorney's fees.

xxx xxx xxx

On May 21, 1982, the respondent NLRC issued a resolution setting aside the appealed decision and ordering the case remanded to the labor arbiter of origin (Teodorico Dogelio) to give private respondents opportunity to cross-examine the petitioner or produce further evidence. The parties were duly notified of the conference on July 27, 1982 before Labor Arbiter Dogelio. But upon oral manifestation of private respondents to inhibit Arbiter Dogelio from hearing the case, the same was reassigned to Labor Arbiter Apolinario Lomabao, Jr. Similarly, Lomabao inhibited himself upon motion of private respondents imputing 'personal prejudice and bias' against the former who strongly denied the same. The case was again reassigned to Arbiter Teresita R. Domingo who in time, also inhibited herself from hearing the case. The repeated motions of private respondents to inhibit the different labor arbiters to whom the case was assigned and reassigned is certainly irregular and highly suspicious and leads to the conclusion that they were shopping for suitable arbiter, and in the process, succeeded in delaying the wheels of justice to the prejudice of petitioner. This is obvious from the fact that instead of cross-examining petitioner and adducing additional proofs as they had previously committed themselves to do, they had simply indulged in seeking the inhibition of one labor arbiter after another, and one postponement after another. When they finally presented their additional evidence incorporated in their position paper (filed June 22, 1983), it was over a year from the time they were first notified of the rehearing of the case before labor arbiter of origin Teodorico Dogelio.

Finally, on October 17, 1984, Labor Arbiter Pelagio A. Carpio, the 4th arbiter reassigned to the case (three others before him having inhibited themselves at private respondents' behest), rendered judgment (.Annex C, Petition) dismissing petitioner's complaint against the respondent corporation for lack of merit, a sheer reversal of the decision of Arbiter Dogelio (Annex A, Id)

xxx xxx xxx

CONCLUSION

In refusing to give weight to petitioner's claim that he is an ADECOR employee, in glossing over the fact that it is fully corroborated by indubitable documents, the public respondent committed grave abuse of discretion amounting to lack of jurisdiction." (Emphasis supplied)

WHEREFORE, respondent Commission's Decision and Resolution dated June 20, 1985 and August 30, 1985, respectively, as well as the Decision of Labor Arbiter Pelagio Carpio, dated October 17, 1984, are hereby ANNULLED and SET ASIDE for having been rendered in grave abuse of discretion amounting to lack of jurisdiction, and the original Decision of Labor Arbiter Teodorico Dogelio, dated September 10, 1979, is hereby reinstated. Costs against private respondents.

G.R. No. 74517 February 23, 1988

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.BENNY DY, accused-appellant.

 

MELENCIO-HERRERA, J.:

At around midnight of 7 May 1984, death cast its shadow over Boracay Island, an internationally known tourist spot famous for its powdery white sand beach.The Island is accessible by an from Kalibo, Aklan, after a one-and-a-half hour trip. It can also be reached in twenty (20) minutes by pumpboat from Barangay Caticlan, the loading point for tourists going to the Island. Caticlan has a small airfield which can service small planes. Felled by a gunshot wound on the neck, which caused his death approximately, six (6) hours later, was Christian Langel y Philippe, a Swiss tourist who was vacationing on the Island together with his sister and some friends.

The following day, 8 May 1984, the following police report was entered as Entry No. 3904 in the police blotter of the Malay Police Sub-station, Malay, Aklan:

That on or about 0700H 8 May 1984, Pat. Padilla RR reported (to) this sub-station with the living body of one Beny Dy, with caliber .38 Danao made, as suspect to the shooting incident at Sitio Angol, Manoc-Manoc Malay, Aklan, which cause(d) the untimely death of one Christian Langel Philippe, tourist, 24 years old and a Swiss nationale. Pat. Salibio rushed to the hospital at Caticlan to obtain antemortem but the victim died at about 0600H in the morning. Suspect Benny Dy voluntarily surrendered to the sub-station commander with his caliber 38 with serial number 33169 Smith and Wesson (US), [Exhibit "G"].

Acting on the report, Chief of Police Tambong, also on 8 May 1984, prepared a Complaint (Exhibits "H" and 'H-l") charging the Accused, Benny Dy, the owner of "Benny's Bar," situated on the Island, with the crime of Murder With the Use of Unlicensed firearms (Ibid., p. 2, Original Record). The Complaint was subscribed and sworn to before Judge Jaime R. Tonel of the 5th Municipal Circuit Trial Court of Buruanga, Aklan, on 17 May 1984 (Exhibit "H-2") and docketed as Criminal Case No. 1776 of that Court on the same day (Exhibit "H-3", Order, p. 4, Original Record).

The witnesses listed in that Complaint, namely, Bernadette Langel of Chatelaine Geneve, Switzerland, who is the victim's sister, and Ian Mulvey, of Essex, England, executed separate Sworn Statements giving their respective versions of the incident (Exhibits "H-4" and 'H-7"). They did not take the stand, however, for fear of reprisal" so that said Statements were correctly considered by the Trial Court as hearsay. On 17 May 1984, Judge Tonel issued the following:

ORDER

Having conducted the preliminary examination of this case, this Court finds probable cause that the crime as charged has been committed and that the accused may be responsible thereof.

WHEREFORE, let the records of this case be registered in the docket. No warrant of arrest is issued for the apprehension of the accused for the reason that he is already under police custody before the filing of the complaint. For the provisional liberty of the accused, bail is hereby fixed in the amount of Thirty Thousand Pesos (P30,000.00). (p. 4, Original Record)

The Accused posted the required bail on 13 June 1984, which was approved by Judge Tonel on the same day. On 12 July 1984 the records of the case were forwarded to the Office of the Provincial Fiscal, Kalibo, Aklan, "for further proceedings" (Order, p. 10, Original Record)

On 27 July 1984 the Provincial Fiscal filed the Information before the Regional Trial Court of Kalibo, Aklan, charging the Accused with Murder. The case was docketed as Criminal Case No. 2001 in that Court.

After trial, the lower Court rendered judgment * on 9 December 1985 with the following decretal portion:

WHEREFORE, judgment is hereby rendered finding the accused BENNY DY y LIM guilty beyond reasonable doubt of the crime of MURDER and sentencing him to suffer the penalty of RECLUSION PERPETUA and to indemnify the heirs, for the death of the victim, in the sum of P30,000.00; actual damages of P33,243.10; moral damages of P30,000.00; exemplary damages of P30,000.00; and to pay the costs.

Hence, this appeal. The last Brief before this Court was filed on 26 February 1987 and the case was deliberated upon on 25 January 1988.

Testifying for the prosecution in the Court below, one Wilson TUMAOB, a resident in the area, and a fisherman by occupation, gave his account of the incident as follows:

At around 12:00 midnight while inside the bar, he saw the accused Benny Dy shoot a white person, (meaning a European) who was hit on the right side of the neck Tsn. Nov. 12, 1984, pp. 78, 80). He recognized the accused as the one who shot the white person because of the light coming from the petromax lamp which was in front of him and he was just one-and-one-half meters from the accused and about the same distance from the victim (Tsn. Nov. 12, 1984, p. 81). When he saw the accused shoot the victim, he did not hear any conversation between them (Tsn. Nov. 14, 1984, pp. 81, 82). At that precise time, there were many people of different nationalities coming in and out of the bar. He did not know anyone of them except the accused Benny Dy (Tsn. Nov. 14, 1984, p. 108). Neither did he know the helpers in the bar, nor see anyone of these

customers to be residents of, or friends of his from, barrio Balusbos, Malay, where he resides.

In the courtroom during the trial, the witness Wilson Tumaob demonstrated how the a shot the victim.

Q. When you said you saw Benny Dy shoot the victim, can you demonstrate to the Court how he did it?

A (As demonstrated, the victim and the accused were sitting and facing then immediately the accused stood up and shot the victim. (Tsn. Nov. 14, 1984, pp. 117, 118).

Wilson Tumaob testified that the accused was about one meter from the victim when the accused shot the latter. The table where he was sitting was parallel to the table where the victim was sitting. He was looking at the accused and the victim when he saw the accused shoot the victim, and the chair occupied by him and the chair occupied by the victim were at the same side. (Tsn Nov. 14, 1984, pp. 119-120). After shooting the victim, the accused remained at the place where the accused was standing (Tsn. Nov. 14, 1984, p. 118).

The victim was carried by the victim's companions to the shore and they loaded him on a pumpboat which was anchored about fifty meters from the bar. Wilson Tumaob helped in carrying the victim to the pumpboat to be brought to the hospital in Caticlan (Tsn. Nov. 12, 1984, pp. 82, 83). After the incident the eye-witness (Wilson Tumaob) went home and slept at around 1:30 in the morning of May 8,1984. (pp. 4-5, Annex '1', Appellant's Brief).

Additional prosecution evidence is to the effect that in the early morning after the incident, the Accused confessed orally to Pat. Rodolfo Padilla, the operator of the radio station on the Island, and voluntarily surrendered the gun he had used in shooting the victim. Pat. Padilla's testimony reads in part:

ATTY. RESURRECCION:

Q Sometime on May 8,1984, can you tell the Honorable Court if you have met the accused Benny Dy?

A At home after coming from the radio station, Benny Dy came to me and inquired if the Office of the Chief of Police was opened?

Q And what did you answer him when the accused asked you that?

A I answered him that the Office of the Chief of Police is opened for twenty four hours.

Q Did you ask Benny Dy why he asked you if the Office of the Chief of Police was opened?

A I inquired him why, then he answered me that he had shot a tourist." (P. 6, t.s.n., October 17,1984).

xxx xxx xxx

ATTY. RESURRECCION:

Q When Benny Dy answered you that he shot a tourist, what did you do?

A I inquired him further if the tourist was dead but he answered me that the victim was brought to the hospital.

Q What did you do as police officer when Benny Dy told you that he shot a tourist? A He asked me to accompany him to the Office of the Chief of Police and I further asked him the gun he used in shooting the victim and he answered that it was still in his house.

Q When Benny Dy told you that the gun he used in shooting the tourist was in his house, what did you do?

A I advised him to get that gun and give it to me to be deposited in the Office of the Chief of Police.

Q Were you able to get that gun from the house of Benny Dy A Yes, sir. Q Were you alone when you went to the house of Benny Dy to get that gun

A I called one of the policemen to accompany me.

Q What is the name of the policeman who accompanied you?

A Pat. Manuel Casimiro.

Q Were you able to get the gun from the house of Benny Dy together with your companion Pat. Manuel Casimiro?

A Benny Dy voluntarily gave the gun to us.

Q So do we understand from you that it was Benny Dy also together with your companion Manuel Casimiro who gave or surrendered the gun to you?

ATTY. MARIN:

Benny Dy voluntarily gave the gun to him and Pat. Casimiro.

COURT TO THE WITNESS:

Q Where did Benny Dy give to you and Pat. Manuel Casimiro the gun that is surrendered to you?

A In their house.

COURT:

Proceed.

ATTY. RESURRECCION:

Q Who were the persons present in the house of Benny Dy when the gun was given to you by him?

A His houseboy called Tan-tan'.

Q Was this Tan-tan already adult or teen-ager?

A Teenager.

Q What time of May 8, 1984, did Benny Dy give to you and Pat. Manuel Casimiro the gun he gave to you?

A About 6:00 in the morning. (pp. 7-9, Id.)

xxx xxx xxx

Q When Benny Dy told you that he shot a tourist in his establishment, known as Benny's Bar, what else did he tell you?

A He told me that after shooting the victim he requested somebody to rush the victim to the hospital.

Q Did you ask him why he shot the victim?

A I did not.

Q You stated that the accused Benny Dy surrendered to you a gun together with Pat. Manuel Casimiro, if that gun is shown to you, will you be able to Identify the same?

A Yes, sir.

Q I am showing to you a gun in a container revolver caliber.38 and one (1) bullet exhibit against Benny Dy, which we request that this container be marked as Exhibit 'A' for the prosecution, Your Honor.

COURT:

Mark it.

ATTY. RESURRECCION:

Q Is this the same gun you are referring to which was surrendered by Benny Dy?

A Yes, sir, this is the one. (Witness identifying the gun.) (pp. 11-12, Id.)

The sequence of events presented by the prosecution then discloses that

Together with Pat, Manuel Casimiro, Pat. Padilla accompanied Benny Dy to the police headquarters at the Poblacion of Malay. At the police headquarters, Pat. Padilla gave the gun surrendered by Benny Dy to Chief of Police Ariston Tambong who in turn handed it over to police supply officer Pat. Romulo Sijano for safekeeping (pp. 13-24, 27, Id). (pp- 7-9, Appellee's Brief).

The defense version, on the other hand, professes the innocence of the Accused, denies his presence inside the bar during the shooting, and attributes the offense to an unrecognized person. Thus:

On May 7, 1984, Benny Dy was inside his bar. However, he remained therein for a few hours as he had a headache. He left his bar at around 9:30 or 10:00 o'clock in the evening, and went to bed in a room at the annex building behind the bar. He left his friend, Francisco Ureta known as Tan-tan and his new helper, Romy, to attend and take charge of the bar.

In that evening of May 7, 1984, there were several customers inside the bar. Some people were dancing. At about midnight, a person entered Benny's Bar and in less than two (2) minutes, an explosion was heard inside the bar. The explosion caused the customers to scream; they rushed out of the bar including the person who entered immediately before the explosion.

The loud explosion coupled with the screaming and rushing of customers awakened Benny Dy. He was prompted to immediately come out of his room and directly proceeded to the bar. Inside the bar, Benny saw a man lying on the sand floor with blood on his shirt.

Instinctively, Benny Dy carried this man to the beach, and woke up Charlie the owner of a pump boat which could take the wounded man to the hospital. While the wounded man was being loaded in a pumpboat, several persons arrived including Australian Nurses to render assistance. The wounded man was finally brought to Aklan Baptist Hospital at Caticlan, Malay, Aklan for treatment. Unfortunately, the patient, whose real name is Christian Langel, died.

The shooting in Benny's Bar may nabaril sa Benny's Bar', immediately, spread like forest wild fire in the small Island of Boracay and rapidly transferred from one ear to another and in the course thereof, it became distorted from 'may nabaril sa Benny's Bar' to 'may nabaril sa Benny and finally may nabaril si Benny'. Consequently, loose talks rapidly spread that somebody was shot by Benny ('may nabaril si Benny').

Appellant Benny Dy who carried the victim to the shore to be brought to the hospital to save the latter, and who facilitated the surrender to Pat. Rodolfo Padilla a gun which his helper found the following morning while cleaning the bar, eventually found himself t suspect in shooting of Langel. (pp. 1-3, Appellant's Brief)

All defense witnesses were one in testifying that the culprit was someone else other than the Accused. Thus, Rodrigo Lumogdang, a carpenter allegedly hired by a friend of the Accused to repair the kitchen of the bar, testified that around 11:30 P.M. of 7 May 1984, he saw a person go inside Benny's Bar but could not recognize him because the petromax lamp in the bar was not so bright as it was covered by colored red paper. In less than two minutes after said person entered, a shot

exploded from the inside of the bar. Thereafter he saw the man who had just entered rush outside holding a gun tucked to his waist (t.s.n., June 25, 1985, pp. 7-8). He then ran a few meters away and when he came back he saw the Accused asking "Tantan" what had happened to which the latter replied that a white person had been shot. In particular, Lumogdang stated that he did not see the Accused at 6:30 P.M., when he took a stroll in the beach nor when he came back at around 11:30 P.M. Much less did he see TUMAOB inside the bar.

Another defense witness, Rogelio Lakandula, testified that he went to Benny's Bar at around 10:00 P.M. of 7 May 1984. While drinking beer thereat he saw a white person, who was three meters away from him, shot by a person he did not recognize but he saw him come from the door and enter Benny's Bar alone. Before and after the shooting incident, he did not see either the Accused or TUMAOB inside the bar.

Wolfer Tumaob, Jr., a nephew of the principal prosecution witness, TUMAOB, testified that on 7 May 1984 at 11:00 P.M., TUMAOB, Jover Casidsid, Welmer Taunan, Wolfer Tumaob, Sr., and he, went out fishing at midsea staying thereat up to 6:00 A.M. of 8 May 1984 and that they did not pass Boracay Island at all on 7 May 1984 but went home on 8 May 1984.

The accused stoutly denied having made any oral confession alleging that he went to Pat. Padilla not to report the incident but to state that a boy helper in the bar had found a gun on the sand floor while cleaning and that Pat. Padilla picked up the gun from the bar at his (Accused's) request (t.s.n., September 2, 1985, pp. 33-36). The Accused argues that even if he did make such a confession, the same would be inadmissible in evidence.

The Trial Court found the testimonies of defense witnesses enmeshed in contradictions on material points, rejected the disclaimers they had made, accorded more credence to the prosecution version, and as previously stated, rendered a judgment of conviction.

In this appeal, the accused raises the following

Assignments of Error

I

The trial Court erred in holding that the Smith & Wesson revolver cal. .38 with Serial No. 33169 was the gun which caused the death of Christian Langel.

II

The trial Court erred in finding that Wilson Tumaob testified in court ahead of Dr. Caturan, so the former's testimony on the relative position of the accused and victim could not have been influenced or tailored to conform to Dr. Caturan's findings on the trajectory of the bullet slug found in the victim's body.

III

The trial Court erred in holding that Wilson Tumaob had no unfair motive to fabricate a story different from what he actually witnessed, and in giving weight to his testimony.

IV

The trial Court erred in holding that accused shot Langel.

V

The trial Court erred in holding that the conflicting testimonies of Pat. Padilla and Casimiro relate to minor matters which do not affect their credibility.

VI

The trial Court erred in holding that appellant made the oral confession, and in admitting the same as well as the entries in the police blotter.

VII

The trial Court erred in holding that compliance with the constitutional procedure on custodial interrogation is not applicable in the instant case.

VIII

The trial Court erred in holding that the uncorroborated testimony of Wilson Tumaob is sufficient to sustain appellant's conviction.

IX

The trial Court erred in holding that the evidence adduced by the prosecution is overwhelming and satisfied the test of proof beyond reasonable doubt in convicting appellant.

X

The trial Court erred in holding that appellant's defense of alibi is weak.

XI

The trial Court erred in convicting accused-appellant.

XII

The trial Court erred in denying accused-appellant's motion for new trial.

The basic issue is actually one of credibility, the crucial question being whether the Accused had orally admitted his authorship of the crime and surrendered the gun he had used in shooting the victim, as the prosecution claims, or, whether he had no involvement whatsoever, the gun surrendered having been found by a boy helper inside the bar while cleaning the place the morning after the incident, as the defense would have us believe.

The case history and the documentary evidence attest strongly to Appellant's oral confession and voluntary surrender. Thus, (1) Entry No. 3904 in the police blotter of the Malay Police Sub-station, dated 8 May 1984, supra, confirms three significant details: a) Pat. Padilla's testimony that he had accompanied the Accused to police headquarters in the early morning of 8 May 1984 after the latter admitted having "shot a tourist;" b) Appellant's voluntary surrender to the Chief of Police; and c) his surrender of his Smith & Wesson revolver, cal. .38, also to the Chief of Police.

It may be that Chief of Police Ariston T. Tambong, who had presumably made such entry, died on 15 August 1984 before the start of the trial of this case below and was not in a position to Identify the same before the Court. His successor (Lt. Audie Arroyo), however, was presented as a prosecution witness and Identified said entry (t.s.n., October 17, 1984, pp. 29-33).

The revolver, marked as Exhibit "F", in turn, was Identified by Pat. Padilla as the firearm surrendered by the Accused. When Pat. Padilla stated that he saw the fatal gun, its serial number and name for the first time (t.s.n., October 17, 1984, pp. 17-19) he was clearly referring to particulars which he did not concern himself with at the time of surrender.

Appellant's assertion that the gun he had surrendered was merely found by a boy helper while cleaning the bar deserves no credence for, if it were so, it would have been absurd for him to have placed himself under police custody in the early morning after the incident.

(2) The sworn Complaint for "Murder with Use of Unlicensed Firearm" signed by the Chief of Police (Exhibit"H"), dated 8 May 1984, also attests to Appellant's oral confession. Said officer could not have prepared the Complaint with such promptitude sans investigation at "0700H" the morning after the incident were it not for Appellant's outright admission. That Complaint forms part of the record of the proceedings before the Municipal Circuit Trial Court of Buruanga, Aklan, and is prima facie evidence of the facts therein stated (Section 38, Rule 130, Rules of Court). That said Complaint was sworn to before the Municipal Circuit Trial Court Judge and filed before this Court only on 17 May 1984 will not detract from the fact that the Chief of Police had taken official action promptly the very morning of Appellant's surrender by charging him with "Murder with the Use of Unlicensed Firearm" after having heard his admission.

(3) The fact of Appellant's surrender is further borne out by the Order of the Municipal Circuit Trial Court Judge, Judge Tonel dated 17 May 1984, categorically reciting that "no warrant of arrest is issued for the apprehension of the accused for the reason that he is already under police custody before the filing of the complaint." It would have been at variance with ordinary voluntarily placed himself human behavior for Appellant to have under police custody absent any culpability for any offense.

Contrary to the defense contention, the oral confession made by the accused to Pat. Padilla that he had shot a tourist' and that the gun he had used in shooting the victim was in his bar which he wanted surrendered to the Chief of Police (t.s.n., October 17, 1984, pp. 6-9), is competent evidence against him. The declaration of an accused acknowledging his guilt of the offense charged may be given in evidence against him (See. 29, Rule 130, Rules of Court). It may in a sense be also regarded as part of the res gestae. The rule is that, any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such a case it must be given in substance (23 C.J.S. 196, cited in People vs. Tawat, G.R. No. 62871, May 25, 1985, 129 SCRA 431).

What was told by the Accused to Pat, Padilla was a spontaneous statement not elicited through questioning, but given an ordinary manner. No written confession was sought to be presented in evidence as a result of formal custodial investigation. (People vs. Taylaran, G.R. No. 49149, October 31, 1981, 108 SCRA 373). The Trial Court, therefore, cannot be held to have erred in holding that compliance with the constitutional procedure on custodial interrogation is not applicable in the instant case, as the defense alleges in its Error VII.

With the indubitable official and documentary evidence on record, the identity of the Accused as the victim's assailant is indisputable. The denials by the defense immediately lose their credibility and the errors it has assigned are rendered without any merit whatsoever.

Thus, contrary to Error I, the gun which Appellant surrendered to Pat. Padilla and the Chief of Police, coupled with his voluntary surrender, cannot but be the weapon which caused the death of the victim. That is no inference; it is clear and direct evidence, To further require a ballistic examination and a paraffin test would have been a superfluous exercise.

The issue raised in Error II as to who testified ahead, TUMAOB or the examining physician, Dr. Othello Caturan, also becomes irrelevent, TUMAOB's testimony being corroborated by the documentary evidence heretofore mentioned. Besides, even without TUMAOB's testimony the documentary evidence on record more than suffices to overcome the disclaimers by Appellant and on which his assigned Errors VIII & IX are predicated.

TUMAOB's motive in testifying the way he did, further assailed in Error III, is immaterial considering the corroboration his testimony received from Appellant's proven actuations after the incident. Efforts by the defense to discredit him as a "professional witness," who allegedly asked for a consideration from Appellant of P500. 00 to swing the testimony in Appellant's favor, but which the latter rejected, with the insinuation that he could have been paid by Swiss authorities to testify the way he did in Court, is unavailing since conviction is not based on his testimony alone.

Whatever inconsistencies there may have been in the testimonies of Patrolmen Padilla and Casimiro, posited in Error V, are sufficiently overcome by the documentary evidence of record.

As to the testimonial evidence presented by the defense, which the Trial Court rejected, we find no reversible error in the meticulous assessment it had made thereof, ably pointing out the material contradictions in the testimonies and consequently their lack of credibility.

The entries in the police blotter were properly admitted by the Trial Court, contrary to the allegation in Error VI forming, as they do, part of official records.

The defense of alibi must likewise be rejected in the face of overwhelming evidence against the Accused. The Trial Court cannot ba faulted, therefore, for denying Appellant's bid for acquittal contrary to the allegations in Errors IV, X and XI.

Lastly, neither was any error committed by the Trial Court in denying the defense Motion for New Trial (Error XII) based on the affidavit of recantation of witness TUMAOB that he was not at Benny's Bar when the victim was shot. Even assuming that it can be considered as newly discovered evidence it is insufficient to overturn the judgment already rendered, for, it bears emphasizing that conviction is not based on TUMAOB's testimony alone. Moreover,

Affidavits of retraction executed by witnesses who had previously testified in court will not be countenanced for the purpose of securing a new trial — It would be a dangerous rule for courts to reject testimonies solemnly taken before courts of justice simply because the witnesses who had given them later on change their mind for one reason or another, for such a rule would make solemn trials a mockery and place the investigation of truth at the mercy of unscrupulous witnesses. Affidavits of retraction can be easily secured from poor and ignorant witnesses usually for a monetary consideration. Recanted testimony is exceedingly unreliable. So courts are wary or reluctant to allow a new trial based on retracted testimony. (People vs. Saliling, et al, L-27974, February 27,1976, 69 SCRA 427, cited in Ibabao vs. People, L-36957, September 28, 1984, 132 SCRA 216).

The penalty of reclusion perpetua imposed by the Trial Court, however, will have to be modified. With the abolition of the death penalty in the 1987 Constitution, the penalty for Murder is now reclusion

temporal in its maximum period to reclusion perpetua. With the mitigating circumstance of voluntary surrender to which the Accused should be entitled, the penalty is imposable in its minimum period or from seventeen (17) years, four (4) months and one (1) day to eighteen (18) years and eight (8) months. For the application of the Indeterminate Sentence Law, the range of the penalty next lower is prision mayor in its maximum period to reclusion temporal in its medium period, or, from ten (10) years and one (1) day to seventeen (17) years and four (4) months.

WHEREFORE, the test of proof beyond reasonable doubt having been met, the judgment appealed from is hereby AFFIRMED but with the penalty MODIFIED to an indeterminate sentence of ten (10) years and one (1) day of prision mayor, as minimum, to seventeen (17) years, four (4) months and one (1) day of reclusion temporal, as maximum. Costs against the accused-appellant Benny Dy.

SO ORDERED.

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