evidence rule 129 cases

8/10/2019 Evidence Rule 129 Cases

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1. G.R. No. 152392 May 26, 2005

EXPERTRAVEL & TOURS, INC., petitioner,vs.COURT OF APPEALS and KOREAN AIRLINES, respondent.

D E C I S I O N

CALLEJO, SR., J.:

Before us is a petition for review on certiorari of the Decision1 of the Court of Appeals (CA) inCA-G.R. SP No. 61000 dismissing the petition for certiorari and mandamus filed byExpertravel and Tours, Inc. (ETI).

The Antecedents

Korean Airlines (KAL) is a corporation established and registered in the Republic of SouthKorea and licensed to do business in the Philippines. Its general manager in the Philippines isSuk Kyoo Kim, while its appointed counsel was Atty. Mario Aguinaldo and his law firm.

On September 6, 1999, KAL, through Atty. Aguinaldo, filed a Complaint2 against ETI with theRegional Trial Court (RTC) of Manila, for the collection of the principal amount ofP260,150.00, plus attorneys fees and exemplary damages. The verification and certificationagainst forum shopping was signed by Atty. Aguinaldo, who indicated therein that he was theresident agent and legal counsel of KAL and had caused the preparation of the complaint.

ETI filed a motion to dismiss the complaint on the ground that Atty. Aguinaldo was notauthorized to execute the verification and certificate of non-forum shopping as required bySection 5, Rule 7 of the Rules of Court. KAL opposed the motion, contending that Atty.

Aguinaldo was its resident agent and was registered as such with the Securities andExchange Commission (SEC) as required by the Corporation Code of the Philippines. It wasfurther alleged that Atty. Aguinaldo was also the corporate secretary of KAL. Appended to thesaid opposition was the identification card of Atty. Aguinaldo, showing that he was the lawyerof KAL.

During the hearing of January 28, 2000, Atty. Aguinaldo claimed that he had been authorizedto file the complaint through a resolution of the KAL Board of Directors approved during aspecial meeting held on June 25, 1999. Upon his motion, KAL was given a period of 10 dayswithin which to submit a copy of the said resolution. The trial court granted the motion. Atty.

Aguinaldo subsequently filed other similar motions, which the trial court granted.

Finally, KAL submitted on March 6, 2000 an Affidavit3 of even date, executed by its generalmanager Suk Kyoo Kim, alleging that the board of directors conducted a special


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teleconference on June 25, 1999, which he and Atty. Aguinaldo attended. It was also averredthat in that same teleconference, the board of directors approved a resolution authorizing Atty.

Aguinaldo to execute the certificate of non-forum shopping and to file the complaint. Suk KyooKim also alleged, however, that the corporation had no written copy of the aforesaidresolution.

On April 12, 2000, the trial court issued an Order4 denying the motion to dismiss, givingcredence to the claims of Atty. Aguinaldo and Suk Kyoo Kim that the KAL Board of Directorsindeed conducted a teleconference on June 25, 1999, during which it approved a resolutionas quoted in the submitted affidavit.

ETI filed a motion for the reconsideration of the Order, contending that it was inappropriate forthe court to take judicial notice of the said teleconference without any prior hearing. The trialcourt denied the motion in its Order5 dated August 8, 2000.

ETI then filed a petition for certiorari and mandamus, assailing the orders of the RTC. In itscomment on the petition, KAL appended a certificate signed by Atty. Aguinaldo dated January10, 2000, worded as follows:

SECRETARYS/RESIDENT AGENTS CERTIFICATE

KNOW ALL MEN BY THESE PRESENTS:

I, Mario A. Aguinaldo, of legal age, Filipino, and duly elected and appointed CorporateSecretary and Resident Agent of KOREAN AIRLINES, a foreign corporation duly organized

and existing under and by virtue of the laws of the Republic of Korea and also duly registeredand authorized to do business in the Philippines, with office address at Ground Floor, LPLPlaza Building, 124 Alfaro St., Salcedo Village, Makati City, HEREBY CERTIFY that during aspecial meeting of the Board of Directors of the Corporation held on June 25, 1999 at which aquorum was present, the said Board unanimously passed, voted upon and approved thefollowing resolution which is now in full force and effect, to wit:

RESOLVED, that Mario A. Aguinaldo and his law firm M.A. Aguinaldo & Associates or any ofits lawyers are hereby appointed and authorized to take with whatever legal action necessaryto effect the collection of the unpaid account of Expert Travel & Tours. They are herebyspecifically authorized to prosecute, litigate, defend, sign and execute any document or papernecessary to the filing and prosecution of said claim in Court, attend the Pre-TrialProceedings and enter into a compromise agreement relative to the above-mentioned claim.

IN WITNESS WHEREOF, I have hereunto affixed my signature this 10th day of January,1999, in the City of Manila, Philippines.

(Sgd.)


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MARIO A. AGUINALDO Resident Agent

SUBSCRIBED AND SWORN to before me this 10th day of January, 1999, Atty. Mario A.Aguinaldo exhibiting to me his Community Tax Certificate No. 14914545, issued on January

7, 2000 at Manila, Philippines.

Doc. No. 119Page No. 25Book No. XXIVSeries of 2000.

(Sgd.)ATTY. HENRY D. ADASANotary Public

Until December 31, 2000PTR #889583/MLA 1/3/20006

On December 18, 2001, the CA rendered judgment dismissing the petition, ruling that theverification and certificate of non-forum shopping executed by Atty. Aguinaldo was sufficientcompliance with the Rules of Court. According to the appellate court, Atty. Aguinaldo hadbeen duly authorized by the board resolution approved on June 25, 1999, and was theresident agent of KAL. As such, the RTC could not be faulted for taking judicial notice of thesaid teleconference of the KAL Board of Directors.

ETI filed a motion for reconsideration of the said decision, which the CA denied. Thus, ETI,now the petitioner, comes to the Court by way of petition for review on certiorari and raisesthe following issue:

DID PUBLIC RESPONDENT COURT OF APPEALS DEPART FROM THE ACCEPTED ANDUSUAL COURSE OF JUDICIAL PROCEEDINGS WHEN IT RENDERED ITS QUESTIONEDDECISION AND WHEN IT ISSUED ITS QUESTIONED RESOLUTION, ANNEXES A AND BOF THE INSTANT PETITION?7

The petitioner asserts that compliance with Section 5, Rule 7, of the Rules of Court can bedetermined only from the contents of the complaint and not by documents or pleadingsoutside thereof. Hence, the trial court committed grave abuse of discretion amounting toexcess of jurisdiction, and the CA erred in considering the affidavit of the respondentsgeneral manager, as well as the Secretarys/Resident Agents Certification and the resolutionof the board of directors contained therein, as proof of compliance with the requirements ofSection 5, Rule 7 of the Rules of Court. The petitioner also maintains that the RTC cannottake judicial notice of the said teleconference without prior hearing, nor any motion therefor.The petitioner reiterates its submission that the teleconference and the resolution adverted to


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by the respondent was a mere fabrication.

The respondent, for its part, avers that the issue of whether modern technology is used in thefield of business is a factual issue hence, cannot be raised in a petition for review oncertiorari under Rule 45 of the Rules of Court. On the merits of the petition, it insists that Atty.

Aguinaldo, as the resident agent and corporate secretary, is authorized to sign and executethe certificate of non-forum shopping required by Section 5, Rule 7 of the Rules of Court, ontop of the board resolution approved during the teleconference of June 25, 1999. Therespondent insists that "technological advances in this time and age are as commonplace asdaybreak." Hence, the courts may take judicial notice that the Philippine Long DistanceTelephone Company, Inc. had provided a record of corporate conferences and meetingsthrough FiberNet using fiber-optic transmission technology, and that such technologyfacilitates voice and image transmission with ease this makes constant communicationbetween a foreign-based office and its Philippine-based branches faster and easier, allowingfor cost-cutting in terms of travel concerns. It points out that even the E-Commerce Law has

recognized this modern technology. The respondent posits that the courts are aware of thisdevelopment in technology hence, may take judicial notice thereof without need of hearings.Even if such hearing is required, the requirement is nevertheless satisfied if a party is allowedto file pleadings by way of comment or opposition thereto.

In its reply, the petitioner pointed out that there are no rulings on the matter ofteleconferencing as a means of conducting meetings of board of directors for purposes ofpassing a resolution until and after teleconferencing is recognized as a legitimate means ofgathering a quorum of board of directors, such cannot be taken judicial notice of by the court.It asserts that safeguards must first be set up to prevent any mischief on the public or to

protect the general public from any possible fraud. It further proposes possible amendmentsto the Corporation Code to give recognition to such manner of board meetings to transactbusiness for the corporation, or other related corporate matters until then, the petitionerasserts, teleconferencing cannot be the subject of judicial notice.

The petitioner further avers that the supposed holding of a special meeting on June 25, 1999through teleconferencing where Atty. Aguinaldo was supposedly given such an authority is afarce, considering that there was no mention of where it was held, whether in this country orelsewhere. It insists that the Corporation Code requires board resolutions of corporations tobe submitted to the SEC. Even assuming that there was such a teleconference, it would beagainst the provisions of the Corporation Code not to have any record thereof.

The petitioner insists that the teleconference and resolution adverted to by the respondent inits pleadings were mere fabrications foisted by the respondent and its counsel on the RTC,the CA and this Court.

The petition is meritorious.


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Section 5, Rule 7 of the Rules of Court provides:

SEC. 5. Certification against forum shopping. The plaintiff or principal party shall certifyunder oath in the complaint or other initiatory pleading asserting a claim for relief, or in asworn certification annexed thereto and simultaneously filed therewith: (a) that he has not

theretofore commenced any action or filed any claim involving the same issues in any court,tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action orclaim is pending therein (b) if there is such other pending action or claim, a completestatement of the present status thereof and (c) if he should thereafter learn that the same orsimilar action or claim has been filed or is pending, he shall report that fact within five (5) daystherefrom to the court wherein his aforesaid complaint or initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment ofthe complaint or other initiatory pleading but shall be cause for the dismissal of the casewithout prejudice, unless otherwise provided, upon motion and after hearing. The submission

of a false certification or non-compliance with any of the undertakings therein shall constituteindirect contempt of court, without prejudice to the corresponding administrative and criminalactions. If the acts of the party or his counsel clearly constitute willful and deliberate forumshopping, the same shall be ground for summary dismissal with prejudice and shall constitutedirect contempt, as well as a cause for administrative sanctions.

It is settled that the requirement to file a certificate of non-forum shopping is mandatory8 andthat the failure to comply with this requirement cannot be excused. The certification is apeculiar and personal responsibility of the party, an assurance given to the court or othertribunal that there are no other pending cases involving basically the same parties, issues and

causes of action. Hence, the certification must be accomplished by the party himself becausehe has actual knowledge of whether or not he has initiated similar actions or proceedings indifferent courts or tribunals. Even his counsel may be unaware of such facts.9 Hence, therequisite certification executed by the plaintiffs counsel will not suffice.10

In a case where the plaintiff is a private corporation, the certification may be signed, for andon behalf of the said corporation, by a specifically authorized person, including its retainedcounsel, who has personal knowledge of the facts required to be established by thedocuments. The reason was explained by the Court in National Steel Corporation v. Court of

Appeals,11 as follows:

Unlike natural persons, corporations may perform physical actions only through properlydelegated individuals namely, its officers and/or agents.

The corporation, such as the petitioner, has no powers except those expressly conferred on itby the Corporation Code and those that are implied by or are incidental to its existence. In


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turn, a corporation exercises said powers through its board of directors and/or itsduly-authorized officers and agents. Physical acts, like the signing of documents, can beperformed only by natural persons duly-authorized for the purpose by corporate by-laws or byspecific act of the board of directors. "All acts within the powers of a corporation may beperformed by agents of its selection and except so far as limitations or restrictions which may

be imposed by special charter, by-law, or statutory provisions, the same general principles oflaw which govern the relation of agency for a natural person govern the officer or agent of acorporation, of whatever status or rank, in respect to his power to act for the corporation andagents once appointed, or members acting in their stead, are subject to the same rules,liabilities and incapacities as are agents of individuals and private persons."

For who else knows of the circumstances required in the Certificate but its own retainedcounsel. Its regular officers, like its board chairman and president, may not even know the

details required therein.

Indeed, the certificate of non-forum shopping may be incorporated in the complaint orappended thereto as an integral part of the complaint. The rule is that compliance with therule after the filing of the complaint, or the dismissal of a complaint based on itsnon-compliance with the rule, is impermissible. However, in exceptional circumstances, thecourt may allow subsequent compliance with the rule.12 If the authority of a partys counsel toexecute a certificate of non-forum shopping is disputed by the adverse party, the former isrequired to show proof of such authority or representation.

In this case, the petitioner, as the defendant in the RTC, assailed the authority of Atty.Aguinaldo to execute the requisite verification and certificate of non-forum shopping as theresident agent and counsel of the respondent. It was, thus, incumbent upon the respondent,as the plaintiff, to allege and establish that Atty. Aguinaldo had such authority to execute therequisite verification and certification for and in its behalf. The respondent, however, failed todo so.

The verification and certificate of non-forum shopping which was incorporated in the complaintand signed by Atty. Aguinaldo reads:

I, Mario A. Aguinaldo of legal age, Filipino, with office address at Suite 210 Gedisco Centre,1564 A. Mabini cor. P. Gil Sts., Ermita, Manila, after having sworn to in accordance with lawhereby deposes and say: THAT -

1. I am the Resident Agent and Legal Counsel of the plaintiff in the above entitled case andhave caused the preparation of the above complaint

2. I have read the complaint and that all the allegations contained therein are true and correct


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based on the records on files

3. I hereby further certify that I have not commenced any other action or proceeding involvingthe same issues in the Supreme Court, the Court of Appeals, or different divisions thereof, orany other tribunal or agency. If I subsequently learned that a similar action or proceeding has

been filed or is pending before the Supreme Court, the Court of Appeals, or different divisionsthereof, or any tribunal or agency, I will notify the court, tribunal or agency within five (5) daysfrom such notice/knowledge.

(Sgd.)

MARIO A. AGUINALDOAffiantCITY OF MANILA

SUBSCRIBED AND SWORN TO before me this 30th day of August, 1999, affiant exhibiting tome his Community Tax Certificate No. 00671047 issued on January 7, 1999 at Manila,Philippines.

Doc. No. 1005Page No. 198Book No. XXISeries of 1999.

(Sgd.)

ATTY. HENRY D. ADASANotary PublicUntil December 31, 2000PTR No. 320501 Mla. 1/4/9913

As gleaned from the aforequoted certification, there was no allegation that Atty. Aguinaldohad been authorized to execute the certificate of non-forum shopping by the respondentsBoard of Directors moreover, no such board resolution was appended thereto or incorporatedtherein.

While Atty. Aguinaldo is the resident agent of the respondent in the Philippines, this does notmean that he is authorized to execute the requisite certification against forum shopping.Under Section 127, in relation to Section 128 of the Corporation Code, the authority of theresident agent of a foreign corporation with license to do business in the Philippines is toreceive, for and in behalf of the foreign corporation, services and other legal processes in allactions and other legal proceedings against such corporation, thus:


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SEC. 127. Who may be a resident agent. A resident agent may either be an individualresiding in the Philippines or a domestic corporation lawfully transacting business in thePhilippines: Provided, That in the case of an individual, he must be of good moral characterand of sound financial standing.

SEC. 128. Resident agent service of process. The Securities and Exchange Commissionshall require as a condition precedent to the issuance of the license to transact business inthe Philippines by any foreign corporation that such corporation file with the Securities andExchange Commission a written power of attorney designating some persons who must be aresident of the Philippines, on whom any summons and other legal processes may be servedin all actions or other legal proceedings against such corporation, and consenting that serviceupon such resident agent shall be admitted and held as valid as if served upon theduly-authorized officers of the foreign corporation as its home office.14

Under the law, Atty. Aguinaldo was not specifically authorized to execute a certificate of

non-forum shopping as required by Section 5, Rule 7 of the Rules of Court. This is becausewhile a resident agent may be aware of actions filed against his principal (a foreigncorporation doing business in the Philippines), such resident may not be aware of actionsinitiated by its principal, whether in the Philippines against a domestic corporation or privateindividual, or in the country where such corporation was organized and registered, against aPhilippine registered corporation or a Filipino citizen.

The respondent knew that its counsel, Atty. Aguinaldo, as its resident agent, was notspecifically authorized to execute the said certification. It attempted to show its compliancewith the rule subsequent to the filing of its complaint by submitting, on March 6, 2000, a

resolution purporting to have been approved by its Board of Directors during a teleconferenceheld on June 25, 1999, allegedly with Atty. Aguinaldo and Suk Kyoo Kim in attendance.However, such attempt of the respondent casts veritable doubt not only on its claim that sucha teleconference was held, but also on the approval by the Board of Directors of the resolutionauthorizing Atty. Aguinaldo to execute the certificate of non-forum shopping.

In its April 12, 2000 Order, the RTC took judicial notice that because of the onset of moderntechnology, persons in one location may confer with other persons in other places, and,based on the said premise, concluded that Suk Kyoo Kim and Atty. Aguinaldo had ateleconference with the respondents Board of Directors in South Korea on June 25, 1999.The CA, likewise, gave credence to the respondents claim that such a teleconference tookplace, as contained in the affidavit of Suk Kyoo Kim, as well as Atty. Aguinaldos certification.

Generally speaking, matters of judicial notice have three material requisites: (1) the mattermust be one of common and general knowledge (2) it must be well and authoritatively settledand not doubtful or uncertain and (3) it must be known to be within the limits of the jurisdictionof the court. The principal guide in determining what facts may be assumed to be judiciallyknown is that of notoriety. Hence, it can be said that judicial notice is limited to facts


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evidenced by public records and facts of general notoriety.[15] Moreover, a judicially noticedfact must be one not subject to a reasonable dispute in that it is either: (1) generally knownwithin the territorial jurisdiction of the trial court or (2) capable of accurate and readydetermination by resorting to sources whose accuracy cannot reasonably be questionable.16

Things of "common knowledge," of which courts take judicial matters coming to theknowledge of men generally in the course of the ordinary experiences of life, or they may bematters which are generally accepted by mankind as true and are capable of ready andunquestioned demonstration. Thus, facts which are universally known, and which may befound in encyclopedias, dictionaries or other publications, are judicially noticed, provided, theyare of such universal notoriety and so generally understood that they may be regarded asforming part of the common knowledge of every person. As the common knowledge of manranges far and wide, a wide variety of particular facts have been judicially noticed as beingmatters of common knowledge. But a court cannot take judicial notice of any fact which, inpart, is dependent on the existence or non-existence of a fact of which the court has no

constructive knowledge.17

In this age of modern technology, the courts may take judicial notice that businesstransactions may be made by individuals through teleconferencing. Teleconferencing isinteractive group communication (three or more people in two or more locations) through anelectronic medium. In general terms, teleconferencing can bring people together under oneroof even though they are separated by hundreds of miles.18 This type of groupcommunication may be used in a number of ways, and have three basic types: (1) videoconferencing - television-like communication augmented with sound (2) computerconferencing - printed communication through keyboard terminals, and (3)

audio-conferencing-verbal communication via the telephone with optional capacity fortelewriting or telecopying.19

A teleconference represents a unique alternative to face-to-face (FTF) meetings. It was firstintroduced in the 1960s with American Telephone and Telegraphs Picturephone. At thattime, however, no demand existed for the new technology. Travel costs were reasonable andconsumers were unwilling to pay the monthly service charge for using the picturephone,which was regarded as more of a novelty than as an actual means for everydaycommunication.20 In time, people found it advantageous to hold teleconferencing in thecourse of business and corporate governance, because of the money saved, among otheradvantages include:

1. People (including outside guest speakers) who wouldnt normally attend a distant FTFmeeting can participate.

2. Follow-up to earlier meetings can be done with relative ease and little expense.

3. Socializing is minimal compared to an FTF meeting therefore, meetings are shorter and


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more oriented to the primary purpose of the meeting.

4. Some routine meetings are more effective since one can audio-conference from anylocation equipped with a telephone.

5. Communication between the home office and field staffs is maximized.

6. Severe climate and/or unreliable transportation may necessitate teleconferencing.

7. Participants are generally better prepared than for FTF meetings.

8. It is particularly satisfactory for simple problem-solving, information exchange, andprocedural tasks.

9. Group members participate more equally in well-moderated teleconferences than an FTF

meeting.21

On the other hand, other private corporations opt not to hold teleconferences because of thefollowing disadvantages:

1. Technical failures with equipment, including connections that arent made.

2. Unsatisfactory for complex interpersonal communication, such as negotiation or bargaining.

3. Impersonal, less easy to create an atmosphere of group rapport.

4. Lack of participant familiarity with the equipment, the medium itself, and meeting skills.

5. Acoustical problems within the teleconferencing rooms.

6. Difficulty in determining participant speaking order frequently one person monopolizes themeeting.

7. Greater participant preparation time needed.

8. Informal, one-to-one, social interaction not possible.22

Indeed, teleconferencing can only facilitate the linking of people it does not alter thecomplexity of group communication. Although it may be easier to communicate viateleconferencing, it may also be easier to miscommunicate. Teleconferencing cannot satisfythe individual needs of every type of meeting.23

In the Philippines, teleconferencing and videoconferencing of members of board of directors


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of private corporations is a reality, in light of Republic Act No. 8792. The Securities andExchange Commission issued SEC Memorandum Circular No. 15, on November 30, 2001,providing the guidelines to be complied with related to such conferences.24 Thus, the Courtagrees with the RTC that persons in the Philippines may have a teleconference with a groupof persons in South Korea relating to business transactions or corporate governance.

Even given the possibility that Atty. Aguinaldo and Suk Kyoo Kim participated in ateleconference along with the respondents Board of Directors, the Court is not convinced thatone was conducted even if there had been one, the Court is not inclined to believe that aboard resolution was duly passed specifically authorizing Atty. Aguinaldo to file the complaintand execute the required certification against forum shopping.

The records show that the petitioner filed a motion to dismiss the complaint on the ground thatthe respondent failed to comply with Section 5, Rule 7 of the Rules of Court. The respondentopposed the motion on December 1, 1999, on its contention that Atty. Aguinaldo, its resident

agent, was duly authorized to sue in its behalf. The respondent, however, failed to establishits claim that Atty. Aguinaldo was its resident agent in the Philippines. Even the identificationcard25 of Atty. Aguinaldo which the respondent appended to its pleading merely showed thathe is the company lawyer of the respondents Manila Regional Office.

The respondent, through Atty. Aguinaldo, announced the holding of the teleconference onlyduring the hearing of January 28, 2000 Atty. Aguinaldo then prayed for ten days, or untilFebruary 8, 2000, within which to submit the board resolution purportedly authorizing him tofile the complaint and execute the required certification against forum shopping. The courtgranted the motion.26 The respondent, however, failed to comply, and instead prayed for 15

more days to submit the said resolution, contending that it was with its main office in Korea.The court granted the motion per its Order27 dated February 11, 2000. The respondent againprayed for an extension within which to submit the said resolution, until March 6, 2000.28 Itwas on the said date that the respondent submitted an affidavit of its general manager SukKyoo Kim, stating, inter alia, that he and Atty. Aguinaldo attended the said teleconference onJune 25, 1999, where the Board of Directors supposedly approved the following resolution:

RESOLVED, that Mario A. Aguinaldo and his law firm M.A. Aguinaldo & Associates or any ofits lawyers are hereby appointed and authorized to take with whatever legal action necessaryto effect the collection of the unpaid account of Expert Travel & Tours. They are herebyspecifically authorized to prosecute, litigate, defend, sign and execute any document or papernecessary to the filing and prosecution of said claim in Court, attend the Pre-trial Proceedingsand enter into a compromise agreement relative to the above-mentioned claim.29

But then, in the same affidavit, Suk Kyoo Kim declared that the respondent "do[es] not keep awritten copy of the aforesaid Resolution" because no records of board resolutions approvedduring teleconferences were kept. This belied the respondents earlier allegation in itsFebruary 10, 2000 motion for extension of time to submit the questioned resolution that it was


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in the custody of its main office in Korea. The respondent gave the trial court the impressionthat it needed time to secure a copy of the resolution kept in Korea, only to allege later (viathe affidavit of Suk Kyoo Kim) that it had no such written copy. Moreover, Suk Kyoo Kimstated in his affidavit that the resolution was embodied in the Secretarys/Resident AgentsCertificate signed by Atty. Aguinaldo. However, no such resolution was appended to the said

certificate.

The respondents allegation that its board of directors conducted a teleconference on June25, 1999 and approved the said resolution (with Atty. Aguinaldo in attendance) is incredible,given the additional fact that no such allegation was made in the complaint. If the resolutionhad indeed been approved on June 25, 1999, long before the complaint was filed, therespondent should have incorporated it in its complaint, or at least appended a copy thereof.The respondent failed to do so. It was only on January 28, 2000 that the respondent claimed,for the first time, that there was such a meeting of the Board of Directors held on June 25,1999 it even represented to the Court that a copy of its resolution was with its main office in

Korea, only to allege later that no written copy existed. It was only on March 6, 2000 that therespondent alleged, for the first time, that the meeting of the Board of Directors where theresolution was approved was held via teleconference.

Worse still, it appears that as early as January 10, 1999, Atty. Aguinaldo had signed aSecretarys/Resident Agents Certificate alleging that the board of directors held ateleconference on June 25, 1999. No such certificate was appended to the complaint, whichwas filed on September 6, 1999. More importantly, the respondent did not explain why thesaid certificate was signed by Atty. Aguinaldo as early as January 9, 1999, and yet wasnotarized one year later (on January 10, 2000) it also did not explain its failure to append the

said certificate to the complaint, as well as to its Compliance dated March 6, 2000. It was onlyon January 26, 2001 when the respondent filed its comment in the CA that it submitted theSecretarys/Resident Agents Certificate30 dated January 10, 2000.

The Court is, thus, more inclined to believe that the alleged teleconference on June 25, 1999never took place, and that the resolution allegedly approved by the respondents Board ofDirectors during the said teleconference was a mere concoction purposefully foisted on theRTC, the CA and this Court, to avert the dismissal of its complaint against the petitioner.

IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court ofAppeals in CA-G.R. SP No. 61000 is REVERSED and SET ASIDE. The Regional Trial Courtof Manila is hereby ORDERED to dismiss, without prejudice, the complaint of the respondent.

SO ORDERED.

2. G.R. No. 171814 May 8, 2009


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SOUTH DAVAO DEVELOPMENT COMPANY, INC. (NOW SODACO AGRICULTURALCORPORATION) AND/OR MALONE PACQUIAO AND VICTOR A. CONSUNJI, Petitioners,vs.SERGIO L. GAMO, ERNESTO BELLEZA, FELIX TERONA, CARLOS ROJAS, MAXIMOMALINAO, VIRGILIO COSEP, ELEONOR COSEP, MAXIMO TOLDA, NELSON BAGAAN,

and TRADE UNION OF THE PHILIPPINES and ALLIED SERVICES (TUPAS), Respondents.

D E C I S I ON

TINGA, J.:

Before us is a Rule 45 petition1 which seeks the reversal of the Court of Appeals decision2and resolution3 in CA-G.R. SP No. 68511. The Court of Appeals decision reinstated theNLRCs Resolution4 dated 23 March 2001 which reversed the labor arbiters decision.5

Petitioner South Davao Development Company (petitioner or petitioner corporation) is theoperator of a coconut and mango farm in San Isidro, Davao Oriental andInawayan/Baracatan, Davao del Sur. On August 1963 petitioner hired respondent Sergio L.Gamo (Gamo) as a foreman. Sometime in 1987, petitioner appointed Gamo as a copra makercontractor. Respondents Ernesto Belleza, Carlos Rojas, Maximo Malinao were all employeesin petitioners coconut farm, while respondents Felix Terona, Virgilio Cosep, Maximo Tolda,and Nelson Bagaan were assigned to petitioners mango farm. All of the abovenamedrespondents (copra workers) were later transferred by petitioner to Gamo as the latterscopraceros. From 1987 to 1999, Gamo and petitioner entered into a profit-sharing agreementwherein 70% of the net proceeds of the sale of copra went to petitioner and 30% to Gamo.

The copra workers were paid by Gamo from his 30% share.

Petitioner wanted to standardize payments to its "contractors" in its coconut farms. On 2October 1999, petitioner proposed a new payment scheme to Gamo. The new schemeprovided a specific price for each copra making activity. Gamo submitted his counterproposal.6 Petitioner did not accept Gamos counter proposal since it was higher by at leastfifty percent (50%) from its original offer. Without agreeing to the new payment scheme,Gamo and his copra workers started to do harvesting work. Petitioner told them to stop.Eventually, petitioner and Gamo agreed that the latter may continue with the harvest providedthat it would be his last "contract" with petitioner. Gamo suggested to petitioner to look for anew "contractor" since he was not amenable to the new payment scheme.7

Gamo and petitioner failed to agree on a payment scheme, thus, petitioner did not renew the"contract" of Gamo. Gamo and the copra workers alleged that they were illegally dismissed.

On the other hand, respondent Eleonor Cosep (Eleonor) was employed as a mango classifierin the packing house of petitioners mango farm in San Isidro, Davao Oriental. Sometime inOctober 1999, she did not report for work as she had wanted to raise and sell pigs instead.


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must be one not subject to a reasonable dispute in that it is either: (1) generally known withinthe territorial jurisdiction of the trial court or (2) capable of accurate and ready determinationby resorting to sources whose accuracy cannot reasonably be questionable.18

Things of "common knowledge," of which courts take judicial matters coming to the

knowledge of men generally in the course of the ordinary experiences of life, or they may bematters which are generally accepted by mankind as true and are capable of ready andunquestioned demonstration. Thus, facts which are universally known, and which may befound in encyclopedias, dictionaries or other publications, are judicially noticed, provided, theyare of such universal notoriety and so generally understood that they may be regarded asforming part of the common knowledge of every person. As the common knowledge of manranges far and wide, a wide variety of particular facts have been judicially noticed as beingmatters of common knowledge. But a court cannot take judicial notice of any fact which, inpart, is dependent on the existence or non-existence of a fact of which the court has noconstructive knowledge.19

An invocation that the Court take judicial notice of certain facts should satisfy the requisitesset forth by case law. A mere prayer for its application shall not suffice. Thus, in this case theCourt cannot take judicial notice of the alleged business practices in the copra industry sincenone of the material requisites of matters of judicial notice is present in the instant petition.The record is bereft of any indication that the matter is of common knowledge to the publicand that it has the characteristic of notoriety, except petitioners self-serving claim.

A related issue is whether Gamo is an independent contractor. In Escario v. NLRC,20 weruled that there is permissible job contracting when a principal agrees to put out or farm out

with a contractor or a subcontractor the performance or completion of a specific job, work orservice within a definite or predetermined period, regardless of whether such job or workservice is to be performed within or outside the premises of the principal.21 To establish theexistence of an independent contractor, we apply the following conditions: first, the contractorcarries on an independent business and undertakes the contract work on his own accountunder his own responsibility according to his own manner and method, free from the controland direction of his employer or principal in all matters connected with the performance of thework except to the result thereof and second, the contractor has substantial capital orinvestments in the form of tools, equipment, machineries, work premises and other materialswhich are necessary in the conduct of his business.22

The Implementing Rules and Regulation of the Labor Code defines investmentas tools,equipment, implements, machineries and work premises, actually and directly used by thecontractor or subcontractor in the performance or completion of the job, work, or servicecontracted out.23 The investment must be sufficient to carry out the job at hand.

In the case at bar, Gamo and the copra workers did not exercise independent judgment in theperformance of their tasks. The tools used by Gamo and his copra workers like the karit, bolo,


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pangbunot, panglugit and pangtapok are not sufficient to enable them to complete the job.24Reliance on these primitive tools is not enough. In fact, the accomplishment of their taskrequired more expensive machineries and equipment, like the trucks to haul the harvests andthe drying facility, which petitioner corporation owns.

In order to determine the existence of an employer-employee relationship, the Court hasfrequently applied the four-fold test: (1) the selection and engagement of the employee (2)the payment of wages (3) the power of dismissal and (4) the power to control the employeesconduct, or the so called "control test," which is considered the most important element.25From the time they were hired by petitioner corporation up to the time that they werereassigned to work under Gamos supervision, their status as petitioner corporationsemployees did not cease. Likewise, payment of their wages was merely coursed throughGamo. As to the most determinative testthe power of control, it is sufficient that the powerto control the manner of doing the work exists, it does not require the actual exercise of suchpower.26 In this case, it was in the exercise of its power of control when petitioner corporation

transferred the copra workers from their previous assignments to work as copraceros. It wasalso in the exercise of the same power that petitioner corporation put Gamo in charge of thecopra workers although under a different payment scheme. Thus, it is clear that anemployer-employee relationship has existed between petitioner corporation and respondentssince the beginning and such relationship did not cease despite their reassignments and thechange of payment scheme.

As to the last issue, petitioner seeks our indulgence to declare that Eleonor has abandonedher work. Petitioner admitted that Eleonor was its regular employee.27 However, it claimedthat she abandoned her work, preferring to sell and raise pigs instead.

It is well settled that abandonment as a just and valid ground for dismissal requires thedeliberate and unjustified refusal of the employee to return for work. Two elements must bepresent, namely: (1) the failure to report for work or absence without valid or justifiablereason, and (2) a clear intention to sever the employer-employee relationship. The secondelement is more determinative of the intent and must be evinced by overt acts. Mere absence,not being sufficient, the burden of proof rests upon the

employer to show that the employee clearly and deliberately intended to discontinue heremployment without any intention of returning.28 In Samarca v. Arc-Men Industries, Inc, weheld that abandonment is a matter of intention and cannot lightly be presumed from certainequivocal acts.1awphi1

To constitute abandonment, there must be clear proof of deliberate and unjustified intent tosever the employer-employee relationship. Clearly, the operative act is still the employeesultimate act of putting an end to his employment.29 However, an employee who takes stepsto protest her layoff cannot be said to have abandoned her work because a charge ofabandonment is totally inconsistent with the immediate filing of a complaint for illegal


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dismissal, more so when it includes a prayer for reinstatement.30 When Eleonor filed theillegal dismissal complaint, it totally negated petitioners theory of abandonment.

Also, to effectively dismiss an employee for abandonment, the employer must comply with thedue process requirement of sending notices to the employee. In Brahm Industries, Inc. v.

NLRC,31 we ruled that this requirement is not a mere formality that may be dispensed with atwill. Its disregard is a matter of serious concern since it constitutes a safeguard of the highestorder in response to mans innate sense of justice.32 Petitioner was not able to send thenecessary notice requirement to Eleonor. Petitioners belated claim that it was not able tosend the notice of infraction prior to the filing of the illegal dismissal case cannot simplyunacceptable.33 Based on the foregoing, Eleonor did not abandon her work.

WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals is AFFIRMED.Cost against petitioner.

3. G.R. No. 13063 May 31, 2000ELIGIO MADRID, petitioner,vs.COURT OF APPEALS, REGIONAL TRIAL COURT and PEOPLE OF THE PHILIPPINES,respondents.

MENDOZA, J.:

This is a petition for review on certiorari of the decision1 of the Court of Appeals affirming theconviction by the Regional Trial Court, Branch 9, Aparri, Cagayan, of petitioner Eligio Madrid2

and his co-accused Arsenio Sunido of the crime of homicide, for the killing on May 21, 1992 ofAngel Sunido in Buguey, Cagayan.

The information against them charged

That on or about May 21, 1992, in the municipality of Buguey, province of Cagayan, andwithin the jurisdiction of this Honorable Court, the said accused, Arsenio Sunido y Silos andEligio (Melencio) Madrid, armed with a sharp pointed instrument, conspiring together andhelping each other, with intent to kill did then and there wilfully, unlawfully and feloniouslyattack, assault and stab one Angel Sunido and inflicting upon hi[m] stab wounds on his bodywhich caused his death.

CONTRARY TO LAW.

When arraigned on October 6, 1992, petitioner and Arsenio Sunido pleaded "not guilty" to thecrime charged,3 whereupon trial ensued. The prosecution presented three witnesses, namely:Remedios Sunido, wife of the victim Merdelyn Sunido, the victim's daughter and Dr. TeddyUnida, medico-legal examiner.


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Remedios Sunido adopted as her testimony on direct examination, the affidavit executed byher at the Buguey Police Station on June 1, 1992. In said affidavit, she narrated that Arsenioand Angel Sunido were brothers who, previous to May 21, 1992, had a quarrel over a fightingcock which Arsenio claimed was his. At around 12 noon of May 21, 1992, Angel Sunido and

Jerry Escobar had drinks in the former's house. Under the influence of alcohol, Angelprovoked a fight with Arsenio. As a result, as Angel was walking back to his house after takingEscobar home, he was stopped by Arsenio and two companions, one of whom was petitioner.

Arsenio's companions held Angel by the arms as Arsenio stabbed him several times ondifferent parts of the body. Arsenio and his companions afterwards fled using petitioner'stricycle.4

Remedios Sunido was cross-examined on the basis of her affidavit. She testified that Arseniodid not pass by their house on May 21, 1992. On further questioning, however, she testifiedthat Arsenio came to their house at around seven o'clock in the morning of that day as Angel

and some friends were having drinks. It was during that visit that Angel provoked a quarrelwith Arsenio concerning the fighting cock.5 On re-direct examination, it was stipulated that thefamily of Angel incurred P4,000.00 as expenses for his death.6

Merdelyn Sunido also executed an affidavit before the police on June 2, 1992.7 She statedthat her father, her uncle Arsenio, and some visitors were drinking in their house on May 21,1992. The brothers quarrelled over a fighting cock which she claimed Arsenio took from theiryard. Angel then accompanied Jerry Escobar to his home. Because of the bad blood betweenthe brothers, on his way back from Escobar's house, Angel was attacked by Arsenio Sunido,with the help of petitioner and an unidentified man, and stabbed Angel to death.8 On the

witness stand, Merdelyn testified that at around noon of May 21, 1992, her father Angel andthe latter's friends, Jerry Escobar and a certain Rudy, were in their house having drinks.9 At12 noon, Angel took Jerry Escobar home. Either on the way to or back from Escobar's house,

Angel was stopped by Arsenio Sunido who was with petitioner and another person. Petitionerand his companion held Angel's hands, raising them upwards, with petitioner holding him bythe right hand, while his companion held Angel by the left hand. And then, Arsenio startedattacking Angel with a knife. After seriously wounding Arsenio, the three fled. Merdelyn saidshe witnessed the incident because she was just approximately five meters away from theplace where it happened. 10

The other witness for the prosecution was Dr. Teddy A. Unida, municipal health officer ofBuguey, who conducted the autopsy on the body of Angel Sunido. His findings wereembodied in a medical certificate, 11 which showed the following wounds suffered by AngelSunido:

DIAGNOSIS:

1. Incised wound 6 cm. in length 1 cm. deep, located at the left temporal region.


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2. Stab wound 3 cm. in length, 8 cm. deep, located at right anterior lower thorax.

3. Stab wound 4 cm. in length 6 cm. deep, located at right anterior lower thorax.Direction Antero-posterior.

4. Stab wound 3 cm. in length 6 cm. deep, located at left anterior lower thorax.Direction Antero-posterior.

5. Stab wound 6 cm. in length 6 cm. deep, located at the right upper [quadrant] ofthe abdomen-anterior. Direction Antero-posterior.

6. Stab wound 3 cm. in length 6 cm. deep, located at left upper [quadrant] of theabdomen-anterior. Direction Antero-posterior.

7. Stab wound 1 1/2 cm. in length 3 cm. deep, located at the right side of theabdomen-lateral. Direction Right to left.

8. Stab wound 2 1/2 cm. 5 cm. deep, located at left lower [quadrant] of theabdomen. Direction Antero caudal.

9. Stab wound 2 cm. in length 8 cm. deep, located at the left side of theabdomen-lateral. Direction Left to right.

Dr. Unida testified that based on these wounds, it could be concluded that the assailant was

in front of the victim and that he used a sharp-edged instrument, like a bolo with a pointed tip,in killing the latter. It is possible that either the assailant and the victim were in a standingposition facing each other or the victim was lying on the ground with his face upwards. Stabwound nos. 2, 3, 4, 5, 6, 7 and 8 were fatal injuries causing the victim's death in the absenceof medical attendance. As to how many assailants were responsible for the wounds, he saidthat judging from the variance in the size and shape of the wounds, it was possible that therewas more than one assailant or that more than one weapon was used. However, Dr. Unidastressed that there was no certainty as to this because the elasticity of the skin makes itdifficult to conclude exactly what type of instrument was used on the basis of the length of thestab wounds alone. 12

On the other hand, the defense presented as witnesses Jerry Escobar, 1 petitioner, ArsenioSunido and Alipio Valdez.

Jerry Escobar was the person who, according to the wife and daughter of the victim, the lattertook home after having drinks in their house. Jerry testified that he dropped by the house of

Angel Sunido between six and seven o'clock in the morning of May 21, 1992, on his way tobuy chicken feeds. According to Jerry, he and Angel had drinks until 12 o'clock noon with


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another persons whom Angel introduced as guests from the Ilocos province. At around 10o'clock in the morning, Arsenio Sunido and petitioner arrived in Arsenio's house in a Tamarawvehicle. Angel's house was located behind that of Arsenio, approximately 10 meters away.Upon seeing his brother and his companion, Angel provoked Arsenio to a fight over a fightingcock which Angel claimed belonged to him. He drew a line on the ground with his knife as he

continued to provoke Arsenio. The two brothers then grappled with each other and fell to theground. Arsenio was able to land on top of Angel and from this vantage point was able towrest the knife with which he stabbed Angel several times. Jerry said he then ran away.Petitioner was near the Tamaraw vehicle at the time of the incident. Jerry denied RemediosSunido's claim that Angel accompanied him (Jerry) to his house. He said Angel was too drunkto have done so. He further belied Remedios' claim that petitioner held Angel by the arm while

Arsenio stabbed Angel. Jerry said that he was bothered in his conscience by allegations ofother witnesses that Angel took him home. 14 When cross-examined, Jerry clarified thatneither Arsenio nor petitioner drank liquor with them. He only saw Arsenio and petitioner ataround 10 o'clock in the morning when they went to Arsenio's house on their way to haul

palay. It was then that Angel challenged Arsenio to a fight as Angel took out his knife. Severalpeople witnessed the fight between the two brothers, but no one intervened because of fear.Jerry further clarified that petitioner ran to the Tamaraw vehicle when the brothers startedfighting. Jerry said that he did not report what he witnessed to anyone because he was notdirectly involved in the case. But he decided to testify and relate what he witnessed as hisconscience bothered him. 15

Petitioner testified next. He said he was a businessman with seven children, all of whomfinished college. His business consisted of three rice mills, one located in Maddalero and twoin Cabanbunan, Gonzaga. The manager of the Maddalero rice mill was Arsenio Sunido. On

May 21, 1992, at around 10 o'clock in the morning, Arsenio informed him that they needed tobuy palay, for which reason they got into his Tamaraw jeep, with Arsenio driving. Theyproceeded to Arsenio's house in Maddalero. Arsenio parked the vehicle in front of his house.When Arsenio alighted from the vehicle, Angel ran towards him with a knife. When he sawthis, petitioner said he ran away from the scene and toward the farm. While in hiding, heheard the brothers arguing. Petitioner denied that he held Angel's hands as Arsenio stabbed

Angel. 16 During cross-examination, petitioner explained that he only knew Angel as thebrother of Arsenio. He reiterated that he ran away because he was frightened by the sight ofthe knife. He never saw what happened to the brothers. Nor did he inquire about the incident.He just heard from other people what had happened since he did not return to Maddalero untila month later. 17

The other defense witness was Arsenio Sunido, who testified that he managed the rice mill ofpetitioner in Maddalero, Buguey, Cagayan. On May 21, 1992, at around 10 o'clock in themorning, he left his house to see petitioner. He noticed several persons, including Angel,drinking gin in the yard outside the latter's house. Angel saw him and began challenging himto a fight. It appears that Arsenio had lost a fighting cock about two weeks before. He claimedthat the fighting cock in Angel's yard belonged to him. Despite provocation from his brother,


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Arsenio simply went about his way and left the house to fetch petitioner in Gonzaga, Cagayanwhere the latter was residing. Upon arriving in petitioner's house, Arsenio informed him thatthey needed money to buy palay. For this reason, petitioner dispatched his Tamaraw jeepneyand accompanied Arsenio to Sta. Teresita where they bought palay. They then proceeded to

Arsenio's house in Maddalero, arriving there at around 11 to 12 o'clock noon. They were met

by Angel Sunido who was drunk. Armed with a knife, Angel rushed towards Arsenio withintent to kill the latter, saying "I will kill you now." When Angel was around two meters awayfrom him, Arsenio alighted from the vehicle and charged toward Angel.

On cross-examination, Arsenio testified that he did not see petitioner anymore during theincident because the latter ran away. After alighting from the Tamaraw, Arsenio slipped andfell. A struggle ensued and Arsenio was able to wrest the knife away from Angel. Arsenio thenstabbed Angel several times. When he realized what he did, Arsenio dropped the knife,wanting to embrace his dead brother for he never really intended to kill him. He immediatelysurrendered to Alipio Valdez, the vice mayor, who brought him to the police precinct of

Buguey. 18 On further cross-examination, Arsenio explained that the misunderstandingbetween him and his brother arose out of a fighting cock then in Angel's possession. Heclaimed that the fighting cock, a breeder, was his but he no longer paid any attention to hisbrother's claim, being aware of the latter's temperament. However, on the date in question,

Angel challenged him to a fight as he was leaving his house. When Arsenio returned to hishouse, together with petitioner, Angel met them and threatened to kill Arsenio as the latterwas about to alight from the vehicle. With his back against the Tamaraw jeepney, Arsenio losthis balance and fell down. Angel jumped on him. After taking the knife away from his brother,

Arsenio stabbed Angel. Angel ran towards a mango tree and died there. Arsenio then went toVice Mayor Valdez' house and told Valdez that he stabbed his brother. Upon request of

Arsenio, Vice Mayor Valdez accompanied him to the police station. On re-direct examination,Arsenio reiterated that his brother was an ex-convict, having been convicted of rape withhomicide. He, on the other hand, had never been charged of any crime before the presentcase. 19

Alipio Valdez, vice mayor of Buguey, Cagayan, testified that Arsenio went to his house onMay 21, 1992, informing him that he stabbed someone. Since Arsenio was willing tosurrender himself to the proper authorities, hence, Vice Mayor Valdez accompanied him tothe Buguey Police Department. 20 When cross-examined, Valdez repeated that Arsenioasked for his protection and, thus, he personally accompanied him to the police station. 21

For purposes of rebuttal, Remedios Sunido denied Arsenio's claim that the knife used inkilling Angel belonged to the latter. She explained that it could not have been her husband'sknife because Angel did not carry a knife when he accompanied Jerry home. 22

After trial, the lower court rendered a decision convicting Arsenio Sunido and Eligio Madrid ofthe crime of homicide. The dispositive portion reads:


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WHEREFORE, the Court hereby finds the accused guilty beyond reasonable doubt of thecrime of homicide, the penalty for which is reclusion temporal (Art. 249, Revised Penal Code)attended by evident premeditation, abuse of superior strength and availment of means toweaken the defense (Art. 14, pars. 13 and 15, R.P.C.). There is more than ample evidence toestablish conspiracy. Therefore, the act of one is the act of all (People v. Noguero, Jr., 218

SCRA 85, 96). The accused are hereby sentenced to serve imprisonment of nineteen (19)years seven (7) months and nine (9) days to twenty (20) years of reclusion temporalmaximum, including all its accessory, penalties. They are further directed to indemnify theheirs of the deceased jointly and severally P50,000.00 for the latter's death P25,000.00 formoral damages and P50,000.00 for exemplary damages, there being more than oneaggravating circumstance and considering the manner the crime was committed, to serve asdeterrent to others, with prejudice to the grant of parole or pardon.

Costs against the accused.

SO ORDERED. 2

Petitioner appealed to the Court of Appeals which rendered a decision, dated September 17,1997, affirming the trial court's decision, subject to modifications, viz.:

WHEREFORE, foregoing considered, the appealed decision is hereby AFFIRMED with thefollowing modification:

1. The accused-appellant Arsenio Sunido is sentenced to suffer the indeterminatepenalty of six (6) years and one (1) day of prision mayor, as minimum, to fourteen (14) years,

eight (8) months and one (1) day of reclusion temporal, as maximum, with the mitigatingcircumstance of voluntary surrender appreciated in his favor thus offsetting the aggravatingcircumstance of use of superior strength and

2. The accused-appellant Madrid is sentenced to suffer the indeterminate penalty of six(6) 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 with the aggravating circumstanceof the use of superior strength considered against him.

The appealed decision is AFFIRMED in all other aspects.

SO ORDERED. 24

Petitioner assigns the following issues in his petition:

1. Did the Cagayan RTC bolt so far from SC bearings

(a) in not satisfying the constitutional standard of clear and distinct articulation of the facts


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and law in trial court decision writing?

(b) in not correctly interpreting Sec. 1, Rule 132 of the Revised Rules on Evidence bysaying it heard the prosecution witnesses' testimonies even when all the prosecution offeredfor Remedios and Merdelyn's direct examination were their affidavits and in setting aside the

requirement of oral testimony for direct examination (which, unlike affidavits, gives occasionfor judicial observation of witness deportment?

(a) in failing to apply the SC's time gap test?

(b) in disregarding the SC's natural tendency rule?

(c) in glossing over the SC's unacceptable identification test?

(d) in ignoring the SC's common experience standard?

(e) in passing over the SC's motive test?

(f) in neglecting the relative's contra-testimony test pointed out by the SC?

(g) in not making a statement versus physical evidence comparison ordained by the SC?

(h) in not applying the SC's chronology test?

(i) in overlooking the no hide, no appearance, no surrender factors pointed out by the

SC?

(j) in slighting the victim of identification by association possibility singled out in a SCdecision before?

(k) in not applying the SC's equipoise test in favor of petitioner?

(l) in not adhering to the SC's search for truth standard?

(m) in not recognizing the operative legal effect of a plea of self-defense by co-accusedArsenio Sunido in that he alone owned up to the killing?

2. Did the Court of Appeals so far sanction all those 15 departures by the Cagayan RTCas to call for the Supreme Court's exercise of the power of supervision? 25

As is often the case, the question here is whether the prosecution evidence is sufficient toprove beyond reasonable doubt petitioner's guilt. In general, we adhere to the principle thatthe assessment made by the trial judge of the credibility of witnesses will not be disturbed on


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appeal. 26 Having heard the testimony of the witnesses and observed their demeanor on thewitness stand, the judge is in a better position to determine the issue of credibility. 27However, where there is a showing that some facts or circumstances of weight and substancewhich would have affected the result of the case have been overlooked, misunderstood ormisapplied, we will not hesitate to make our own evaluation of the evidence. 28 Such is the

case here.

First. The trial court's decision, for all its length 23 pages contains no analysis of theevidence of the parties nor reference to any legal basis in reaching its conclusion. It containsnothing more than a summary of the testimonies of the witnesses of both parties. The onlydiscussion of the evidence is be found in the following paragraphs:

Their testimony convinced the Court. On the other hand, accused's evidence bears the indiciaof fabrication. Defense witnesses from their demeanor, manner of testifying and evasiveanswers were far from credible.

From the evidence on record, the Court believes and so hold that the prosecution hassatisfactorily proved the accused [guilty] beyond reasonable doubt. Prosecution's witnessestestified in a straightforward manner.

Considering the circumstances immediately prior to the commission of the crime, and themanner the same was committed, the Court believes that the aggravating circumstances ofevidence premeditation and abuse of superior strength, as well as availment of means toprevent the deceased from defending himself were sufficiently established. The severality,location and severity of the injuries inflicted as well as their nature, proved that there were

more than one assailants. Murder should have been the proper offense charged. However,we can only convict the accused for homicide. 29

The decision does not indicate what the trial court found in the testimonies of the prosecutionwitnesses to consider the same "straightforward" when, as will presently be shown, they arein fact contradictory and confused. Nor does the decision contain any justification for theappreciation of aggravating circumstances against the accused, much less some basis forfinding conspiracy among them.

In view of the weight given to its assessment of a witness' credibility on appeal, the trial courtshould exert effort to ensure that its decisions present a comprehensive analysis or account ofthe factual and legal findings which would substantially address the issues raised by theparties.

Art. VIII, 14 of the Constitution provides:

No decision shall be rendered by any court without expressing therein clearly and distinctlythe facts and the law on which it is based.


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No petition for review or motion for reconsideration of decision of the court shall be refuseddue course or denied without stating the basis therefor.

In the same vein, Rule 120, 2 of the Rules of Criminal Procedure provides:

Form and contents of judgments. The judgment must be written in the official language,personally and directly prepared by the judge and signed by him and shall contain clearly anddistinctly a statement of the facts proved or admitted by the accused and the law upon whichthe judgment is based.

If it is of conviction, the judgment shall state (a) the legal qualification of the offenseconstituted by the acts committed by the accused, and the aggravating or mitigatingcircumstances attending the commission thereof, if there are any (b) the participation of theaccused in the commission of the offense, whether as principal, accomplice, or accessory

after the fact (c) the penalty imposed upon the accused and (d) the civil liability or damagescaused by the wrongful act to be recovered from the accused by the offended party, if there isany, unless the enforcement of the civil liability by a separate action has been reserved orwaived.

In case of acquittal, unless there is a clear showing that the act from which the civil liabilitymight arise did not exist, the judgment shall make a finding on the civil liability of the accusedin favor of the offended party.

The decision fails to comply with these constitutional and statutory requirements. As we said

in our decision in People v. Bugarin: 30

The requirement that the decisions of courts must be in writing and that they must set forthclearly and distinctly the facts and the law on which they are based serves many functions. Itis intended, among other things, to inform the parties of the reason or reasons for the decisionso that if any of them appeals, he can point out to the appellate court the finding of facts or therulings on points of law with which he disagrees. More than that, the requirement is anassurance to the parties that, in reaching judgment, the judge did so through the processes oflegal reasoning. It is, thus, a safeguard against the impetuosity of the judge, preventing himfrom deciding by ipse dixit. Vouchsafed neither the sword nor the purse by the Constitutionbut nonetheless vested with the sovereign prerogative of passing judgment on the life, libertyor property of his fellowmen, the judge must ultimately depend on the power of reason forsustained public confidence in the justness of his decision. The decision of the trial court inthis case disrespects the judicial function.

Second. The Court of Appeals sustained petitioner's conviction on the strength of thetestimonies given by Remedios and Merdelyn Sunido. No independent evidence, however,incriminating petitioner on the death of Arsenio Sunido has been presented by the


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prosecution. Although they claimed that petitioner held the victim's right hand while Arseniostabbed him, their testimony should have been given the strictest scrutiny in view of the factthat Remedios and Merdelyn Sunido are the wife and daughter, respectively, of the victim. 31

In fact, Merdelyn Sunido gave contradictory accounts of how her father was stabbed by

Arsenio while petitioner allegedly held the victim. These contradictions raise doubts onwhether she really witnessed the incident and on the part allegedly played by petitioner. Morespecifically, the contradictions and inconsistencies relate to the following questions: Did

Arsenio go to the victim's house in the morning of May 21, 1992? Did the victim provoke hisbrother Arsenio into a quarrel? Was there or was there not a quarrel? When was the victimattacked by Arsenio and the latter's companions, which allegedly included petitioner, whileallegedly taking Jerry Escobar to his house or after he had done so and the victim wasreturning to his house? After the incident, what vehicle did the assailant use while fleeing,

Arsenio's Tamaraw vehicle or a tricycle?

In her affidavit before the Buguey police which formed her direct examination, Merdelynstated:

Q04 Why did your uncle Arsenio Sunido, stab your father?

A Before the incident my uncle Arsenio Sunido, came to our house and forcibly took therooster (fighting cock) inside our poultry and there when my father Angel Sunido arrived mymother told him that his rooster place[d] inside our poultry was taken by his brother Arsenio,so on May 21, 1992, my father and uncle Arsenio and some visitors have drinking session atour residence and there not long after, my father inquire my uncle regarding the rooster which

was taken by my uncle which begun their quarrel and after the drinking spree, my fatheraccompanied his friend Jerry Escobar to his house and when my father return that was thetime when when (sic) Melencio Madrid and one companion hold my father while uncle ArsenioSunido stabbed several times that causes his death along the road near the house of myuncle. 32

However, Merdelyn also testified and her testimony is shot through and through withcontradictions and inconsistencies, as the following portions of the transcript of stenographicnotes show:

Q: Let us make it clear, you said that your father accompanied Jerry Escobar to theirhouse, in whose house did your father came from?

A: From our house, sir.

Q: Now, when your father accompanied Jerry Escobar to their house, what happenednext?


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A: He was met by Melecio Madrid, a companion.

Q: And you said they met your father, what did these Melecio Madrid and a companiondo?

A: They held my father, sir.

Q: How did they hold your father?

A: Witness raised her both arms.

Q: Now, you said these 2 persons naming Melecio Madrid and a companion held thehands of your father, what hand when this Mel Madrid held?

A: Left hand, sir.

Q: What hand also did the [companion] of Melecio Madrid hold?

A: Right hand, sir.

Q: When these 2 persons Melecio Madrid and a companion held the hands of your fatherupward, what happened next?

A: My uncle stabbed my father, sir.

Q: Was your father hit?

A: Yes, sir. 3

But when on cross-examination, Merdelyn testified:

Q: You said a while ago that while your father [was] accompanying Gerry Escobar ingoing home, two persons one was Melecio Madrid and unidentified person accosted yourfather, am I correct?

A: Yes, sir.

Q: That was the time when they were still going to the house of Gerry Escobar as allegedby you a while ago, am I correct?

A: No, sir.

xxx xxx xxx


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Q: Did you ever see your uncle Arsenio Sunido between 7:00 o'clock in the morning andimmediately before the alleged stabbing incident?

A: Yes, sir.

Q: Where was your uncle at the time when you saw him?

A: Outside their house.

Q: Did your father do anything when you saw your uncle Arsenio Sunido?

A: There was, sir.

Q: What did your father do?

A: He inquired about a lost chicken.

Q: Then, what did your father do after asking Arsenio Sunido about a lost rooster?

A: Nothing.

xxx xxx xxx

Q: He did not even provoke his brother Arsenio Sunido?

A: He did not sir, he only inquired a lost chicken.

Q: You want to impress the Court that your father did not provoke Arsenio Sunido, is thatwhat you mean?

A: Yes, sir. 34

On whether Arsenio went to the victim's house in the morning of May 21, 1992 and thebrothers had an altercation, Merdelyn made statements even more irreconcilable from theprevious ones she made, manifesting a tendency to improvise and embellish her story whenconfronted with her inconsistencies. To quote:

Q: Considering that you insist that your uncle Arsenio Sunido was present in your housein that morning of May 21, 1992, as appearing in your affidavit and you also insist during thedirect and cross-examination that your uncle Arsenio Sunido was not there present, which iscorrect now, your statement in your affidavit or your statement in the direct-examination and inthe cross-examination?


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A: My statement in the affidavit, sir.

Q: So what is correct then was the one incorporated in the affidavit and you confirmedthat the brothers Arsenio Sunido and your father quarrelled each other?

A: He just informed him something, sir.

xxx xxx xxx

COURT:

Q: Did they quarrel?

A: No, sir.

ATTY. BULSECO:

Q: So you are again changing your answer in your affidavit particularly as appearing inparagraph 8 that your uncle quarrelled with your father?

A: No, sir.

Q: Which is correct then, they quarreled or they did not quarrel?

A: They quarrelled, sir.

Q: How long did your father and your uncle quarrel each other?

A: A long while, sir.

Q: You said that Gerry Escobar and one Rudy stayed in your house from 6:00 o'clock inthe morning up to 11:00 o'clock on May 21, 1992, but they only started drinking at 11:00o'clock in the morning is that correct?

A: Yes, sir.

Q: And from that period of time, was your uncle present?

A: He was not there present, sir. 35

Thus, in her affidavit dated June 2, 1992, 36 Merdelyn testified that her uncle, Arsenio Sunido,joined Angel Sunido, Jerry Escobar and a certain Rudy in drinking liquor at Angel's house.


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But, several times during her cross-examination, Merdelyn testified that her uncle was notpresent during her father's drinking session with his friends. 37 When confronted with thediscrepancy in her affidavit and her testimony, Merdelyn answered that her statement in heraffidavit was the truth, that her uncle was indeed in their house in the morning of May 21,1992, 38 only to deny later that her uncle was in their house from six o'clock to 11 o'clock in

the morning. 39 That was not the end of her answer to the question. In the next breath,Merdelyn asserted her uncle was present at the drinking session, although he stayed for ashort while only at around 10:30 in the morning of that date. 40

Merdelyn showed the same tendency to vacillate between two contradictory statements withregard to the quarrel which arose between her father and her uncle. In her affidavit, Merdelynstated that during the drinking session, her father inquired about the rooster which Arseniohad taken, thus provoking a quarrel between the two brothers. 41 But when asked laterwhether her father and uncle had an altercation over the same subject matter, Merdelyndenied that they had. When asked again whether her father and uncle quarrelled, Merdelyn

later replied that they, in fact, quarrelled for a long while. 42

Even the vehicle allegedly used by Arsenio Sunido and petitioner in fleeing from the scene ofthe crime is uncertain. Merdelyn narrated in her affidavit that after the incident, petitioner tooka tricycle to escape. 4 However, nowhere in her testimony did she mention the tricycle.Instead, she said she saw petitioner's Tamaraw jeepney parked in front of Arsenio's house.44 Considering that Merdelyn testified that she was only five meters away from the placewhere her father was allegedly stabbed, 45 she could not have failed to notice that petitioneralighted from a jeepney.

Even more telling is the inconsistency in Merdelyn's testimony when Arsenio Sunido,allegedly with the assistance of petitioner and another companion, attacked Angel. In heraffidavit, Merdelyn narrated that her father was attacked while returning to their house afteraccompanying Jerry Escobar home. 46 However, on the stand, Merdelyn changed her storyand testified that it was on the way to Jerry Escobar's house that her father was assaulted. 47Several times more after this in her testimony, Merdelyn vacillated as to the actual time herfather was attacked, whether before or after Angel allegedly brought Jerry Escobar home. 48

Inconsistencies on negligible details do not destroy the truth of a witness' testimony, so longas they refer only to collateral or incidental matters. But by no means can the inconsistenciesand contradictions in Merdelyn's testimony be characterized as trivial or insignificant. Herpropensity to make contradictory statements reflects her own uncertainty as to the actualevents leading to her father's death. It is clear that she speaks not from memory orexperience. She cannot even give a definite chronology of the events that transpired beforeher father was killed. We are convinced that she was simply fashioning her story and makingspur-of-the-moment improvisations in an attempt to render her testimony credible. Instead ofso doing, she exhibited a disposition to fabricate that makes her testimony unworthy of beliefand credence.


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We have held that sworn statements executed before police officers are usually incompleteand, therefore, contradictions in the sworn statement of a witness and her testimony arefrequently brushed aside as inconsequential so long as they refer to minor and reconcilablematters. But this rule does not apply when the discrepancies touch on substantial matters as

in the case at bar. 49

Further eroding Merdelyn's testimony is her recital of petitioner's participation in the killing ofher father. She claimed that petitioner and another person held the victim by raising his arms,with petitioner holding the right hand while his companion held the left hand of the victim. 50Petitioner is an old man, almost 64 years old. 51 It taxes one's credulity to be told thatpetitioner could hold the much younger victim so that the latter could be more easily attackedby Arsenio. It is noteworthy that no attempt was even made to identify the third person whoallegedly held the other arm of the victim to facilitate the attack by Arsenio. Merdelyn did noteven describe his appearance. Indeed, the information 52 only mentions Arsenio Sunido and

Eligio Madrid as having conspired to kill Angel Sunido. No mention was made of thismysterious man, even as a John Doe, leading us to think that he exists only as a figment ofMerdelyn and Remedios Sunido's imagination.

Evidence, to be believed, must not only proceed from the mouth of a trustworthy witness butmust likewise be credible in itself. While there is no hard and fast rule to determine thetruthfulness of one's testimony, that which conforms, however, to the quotidian knowledge,observation and experience of man is often deemed to be reliable. 5

Nor can the testimony of Remedios Sunido be given credence any more than Merdelyn's

testimony can be believed. In lieu of direct examination in court, the prosecution presentedthe affidavit which Remedios executed before the police on June 1, 1992. 54 In said affidavit,Remedios stated:

Q Why said Arsenio [Sunido], your brother in-law stab his brother, your husband whichcaused his death?

A They have a misunderstanding in connection with a chicken only.

Q When and where this incident happened?

A On May 21, 1992, at 12:00 o'clock noon more or less at Brgy. Maddalero, Buguey,Cagayan particularly at the road east of our house.

Q Will you narrate in brief [surrounding] circumstances how the incident happened?

A That prior to the incident, my husband and his brother Arsenio [Sunido] have a quarrelregarding to the chicken which we placed inside our poultry, because my brother in-law


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Q: When did your husband provoke your brother-in-law?

A: It was May, sir.

Q: What date?

A: May 22, sir.

Q: Are you sure that your husband was stabbed on May 21, 1992 in what occasion?

A: There was no occasion, sir.

Q: Is it not a fact that at the time of the drinking spree your husband provoked yourbrother-in-law?

A: Yes, sir.

Q: Therefore, your brother-in-law was also present in the drinking spree?

A: No, sir. He was in their house he did not participate in the drinking spree.

Q: In what particular place did your husband provoke your brother-in-law?

A: In our backyard, sir.

Q: And this was after the drinking session?

A: Yes, sir.

Q: Why your husband provoked your brother-in-law?

A: Because of the chicken, sir.

Q: When your husband provoked your brother-in-law, were your visitors still around?

A: Yes, sir.

Q: Who was that visitor?

A: Cousin, sir.

Q: What is the name?


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A: Jerry Escobar and one companion, sir.

xxx xxx xxx

ATTY. BULSECO:

Q: You stated in your affidavit, that one of the accused Eligio Madrid allegedly held yourhusband when the accused Arsenio Sunido stabbed your husband, is it not a fact thatimmediately prior to the stabbing incident, you saw Melencio Madrid and Arsenio Sunidoinside a tamarao jeepney?

A: No, sir.

Q: How far were you when you saw Eulogio Madrid held your husband and Arsenio

Sunido allegedly stabbed your husband?

A: 7 to 10 meters away, sir.

Q: And you were beside your house at that time, is it not?

A: No, sir.

Q: Will you please tell the Honorable Court then where was the accused allegedly camefrom before the stabbing incident?

A: From their house, sir.

Q: For how long a time did you learn that your late husband provoked Arsenio Sunido?

A: I did not witness, sir.56

When further questioned during her re-direct examination, Remedios Sunido related:

FISCAL MIGUEL:

Q: In your answer to question No. 8, that there was a quarrel between your husband andyour brother-in-law regarding with a chicken, when was the quarrel started?

A: May 21, 1992, sir.

Q: What time?


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A: I cannot remember, sir.

Q: Was it before your husband started drinking or after?

A: After, sir.

Q: How many times did your husband provoke your brother-in-law?

A: Only once, sir.

Q: You said that the quarrel started in connection with a chicken, what was the chicken allabout that start the quarrel?

A: My brother-in-law claimed that the chicken was his own, sir.

Q: And when your brother-in-law claimed that the chicken was his own, what did yourhusband tell him if [you] know?

A: He told me why he took his chicken, sir.

Q: And this confrontation between your husband and your brother-in-law was in Ma[y] 21,1992?

A: Yes, sir.

Q: And this started what you called the provocation in the part of your husband?

A: It was not a provocation, sir.

Q: What do you mean then?

A: He insisted claiming the chicken, sir.

COURT:

Q: Who insisted?

A: My husband, sir. 57

As can be seen, Remedios Sunido's testimony, like that of her daughter Merdelyn, is repletewith inconsistencies and contradictions that render its veracity doubtful. Her answersoftentimes are not responsive to the questions propounded to her. She even committed amistake as to the date when the provocation was made by her husband, stating a date which


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is a day after he died.

Moreover, in her affidavit, she stated that petitioner took a tricycle in escaping after theincident. But, as stated earlier, it has already been proven that petitioner used a Tamaraw

jeepney for transportation. Considering that Remedios testified that she was only seven to 10

meters away from the place where her husband was attacked, she could not have failed tonotice what type of vehicle petitioner was using if she actually witnessed the event. Remedios'dubious narrative of her husband's killing fails to convince us. The tenor of her testimonysuggests that it is based not on what she remembers but more on what she imagines to haveoccurred at the time her husband was killed. In People v. Lucero, we held that the unnaturaland contradictory testimony of a witness, coupled with substantial discrepancies between histestimony and his sworn statement, makes him unreliable as a witness. 58

Likewise, the considerable length of time which lapsed before Merdelyn and RemediosSunido made their statements before the police puts into question the claim that they actually

witnessed the killing of Angel Sunido. It is true that delay in reporting a crime, if adequatelyexplained, is not sufficient to cast doubt on the truthfulness of a witness' testimony as, forinstance, the delay may be explained by the natural reticence of most people and theirabhorrence to get involved in a criminal case. 59

But the eyewitnesses involved in this case are the wife and daughter of the victim. One wouldnaturally expect that they would not be anxious to help the police arrest the person or personsresponsible for the killing of their loved one. Instead of doing so, however, Remedios andMerdelyn Sunido only made their statements to the police on June 1, 1992 60 and June 2,1992, 61 respectively, more than one week after the incident they allegedly witnessed. This

fact is made even more strange by the statements of Remedios and Merdelyn Sunido that notlong after the incident, Barangay Councilman Amor de los Santos arrived followed bymembers of the Buguey Police. 62 In a similar case where a daughter delayed in reporting tothe proper authorities who was responsible for her father's death, the Court held:

. . . She had a very early opportunity to do so because the police officers of the town werethere at the scene of the crime, where she was also, just two hours after her father was shotand killed. The most natural reaction of a witness to such an incident, indeed a res gestae,would have been to tell her mother about it, and subsequently the police authorities, who had,as earlier adverted to, responded to the summons for help two hours after the reportedmurder. Human nature would have compelled her to declare that she had seen, and in fact,could identify, the assailant of her father. But she withheld that vital information fromeverybody for an unreasonable length of time (at least four days after the commission of thecrime, by her own statement), which makes her testimony suspect. Teresita's testimonysmacks of fabrication and, therefore, can not support aconviction. 6

The testimonies of Merdelyn and Remedios Sunido do not prove beyond reasonable doubt


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that petitioner participated in the killing of Angel Sunido. We cannot accept such testimoniesas establishing the guilt of petitioner. As we said in People v. Comesario: 64

. . . An accused enjoys the presumption of innocence. He need not prove what is legallypresumed. If he so desires he may present evidence on his behalf, but no matter how weak it

is, he still deserves an acquittal. This is because the prosecution must not rely on theweakness of the evidence for the defense but on the strength of its own evidence. Unless theprosecution has overturned the presumption of innocence, acquittal is inevitable.

Indeed, Arsenio Sunido admitted that he was solely responsible for the death of his brotherAngel Sunido. Thus, he testified:

Q: What time did you arrive in Maddalero particularly on May 21, 1992?

A: Between 11:00 o'clock to 12:00 o'clock.

Q: What unusual incident if any that transpired just immediately after you arrived atMaddalero, Buguey, Cagayan between 11:00 to 12:00 of May 21, 1992?

A: At that time we arrived the place, we noticed the deceased already provoking.

Q: To whom was he provoking?

A: Anybody that passes-by at that time.

Q: And when you noticed

evidence rule 129 cases

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