G.R. No.

96202 April 13, 1999

ROSELLA D. CANQUE, petitioner,

vs.
THE COURT OF APPEALS and SOCOR CONSTRUCTION CORPORATION, respondents.

MENDOZA, J

This petition for review on certiorari seeks a reversal of the decision 1 of the Court of Appeals affirming the judgment 2 of the Regional
Trial Court of Cebu City ordering petitioner —

. . . to pay [private respondent] the principal sum of Two Hundred Ninety Nine Thousand Seven Hundred Seventeen Pesos
and Seventy Five Centavos (P299,717.75) plus interest thereon at 12% per annum from September 22, 1986, the date of
the filing of the complaint until fully paid; to pay [private respondent] the further sum of Ten Thousand Pesos (P10,000.00)
for reasonable attorney's fees; to pay the sum of Five Hundred Fifty Two Pesos and Eighty Six Centavos (P552.86) for filing
fees and to pay the costs of suit. Since [private respondent] withdrew its prayer for an alias writ of preliminary attachment vis-
a-vis the [petitioner's] counterbound, the incident on the alias writ of preliminary attachment has become moot and
academic.

The facts are as follows:

Petitioner Rosella D. Canque is a contractor doing business under the name and style RDC Construction. At the time material to this
case, she had contracts with the government for (a) the restoration of Cebu-Toledo wharf road; (b) the asphalting of Lutopan access road;
and (c) the asphalting of Babag road in Lapulapu City. 3 In connection with these projects, petitioner entered into two contracts with private
respondent Socor Construction Corporation. The first contract (Exh. A), 4 dated April 26, 1985, provided:

The Sub-Contractor (SOCOR Corporation) and the Contractor (RDC Construction) for the consideration hereinafter named,
hereby agree as follows:

1. SCOPE OF WORK:

a. The Sub-Contractor agrees to perform and execute the Supply, Lay and
Compact Item 310 and Item 302;

b. That Contractor shall provide the labor and materials needed to complete the
project;
 c. That the Contractor agrees to pay the Sub-Contractor the price of One Thousand
Pesos only (P1,000.00) per Metric Ton of Item 310 and Eight Thousand Only
(P8,000.00) per Metric Ton of Item 302.

d. That the Contractor shall pay the Sub-Contractor the volume of the supplied
Item based on the actual weight in Metric Tons delivered, laid and compacted and
accepted by the MPWH;

e. The construction will commence upon the acceptance of the offer.

The second contract (Exh. B), 5 dated July 23, 1985, stated:

The Supplier (SOCOR Construction) and the Contractor (RDC Construction) for the consideration hereinafter named,
hereby agree as follows:

1. SCOPE OF WORK:

a. The Supplier agrees to perform and execute the delivery of Item 310 and Item
302 to the jobsite for the Asphalting of DAS Access Road and the Front Gate of
ACMDC, Toledo City;

b. That the Contractor should inform or give notice to the Supplier two (2) days
before the delivery of such items;

c. That the Contractor shall pay the Supplier the volume of the supplied items on
the actual weight in metric tons delivered and accepted by the MPWH fifteen (15)
days after the submission of the bill;

d. The delivery will commence upon the acceptance of the offer.

On May 28, 1986, private respondent sent petitioner a bill (Exh. C), containing a revised computation, 6 for P299,717.75, plus interest at
rate of 3% a month, representing the balance of petitioner's total account of P2,098,400.25 for materials delivered and services rendered
by private respondent under the two contracts. However, petitioner refused to pay the amount, claiming that private respondent failed to
submit the delivery receipts showing the actual weight in metric tons of the items delivered and the acceptance thereof by the
government. 7

Hence, on September 22, 1986, private respondent brought suit in the Regional Trial Court of Cebu to recover from petitioner the sum of
P299,717.75, plus interest at the rate of 3% a month.
In her answer, petitioner admitted the existence of the contracts with private respondent as well as receipt of the billing (Exh. C), dated
May 28, 1986. However, she disputed the correctness of the bill —

. . . considering that the deliveries of [private respondent] were not signed and acknowledged by the checkers of [petitioner],
the bituminous tack coat it delivered to [petitioner] consisted of 60% water, and [petitioner] has already paid [private
respondent] about P1,400,000.00 but [private respondent] has not issued any receipt to [petitioner] for said payments and
there is no agreement that [private respondent] will charge 3% per month interest. 8

Petitioner subsequently amended her answer denying she had entered into sub-contracts with private respondent. 9

During the trial, private respondent, as plaintiff, presented its vice-president, Sofia O. Sanchez, and Dolores Aday, its bookkeeper.

Petitioner's evidence consisted of her lone testimony. 10

On June 22, 1988, the trial court rendered its decision ordering petitioner to pay private respondent the sum of P299,717.75 plus interest
at 12% per annum, and costs. It held:

. . . . [B]y analyzing the plaintiff's Book of Collectible Accounts particularly page 17 thereof (Exh. "K") this Court is convinced
that the entries (both payments and billings) recorded thereat are credible. Undeniably, the book contains a detailed account
of SOCOR's commercial transactions with RDC which were entered therein in the course of business. We cannot therefore
disregard the entries recorded under Exhibit "K" because the fact of their having been made in the course of business
carries with it some degree of trustworthiness. Besides, no proof was ever offered to demonstrate the irregularity of the said
entries thus, there is then no cogent reason for us to doubt their authenticity. 11

The trial court further ruled that in spite of the fact that the contracts did not have any stipulation on interest, interest may be awarded in
the form of damages under Article 2209 of the Civil Code. 12

On appeal, the Court of Appeals affirmed. It upheld the trial court's' reliance on private respondent's Book of Collectible Accounts (Exh.
K) on the basis of Rule 130, §37 13 of the Rules of Court.

Hence, this appeal. Petitioner contends that —

I. THE RESPONDENT COURT ERRED IN ADMITTING IN EVIDENCE AS ENTRIES IN THE COURSE OF

BUSINESS THE ENTRIES IN PRIVATE RESPONDENT'S BOOK OF COLLECTIBLE ACCOUNTS
CONSIDERING THAT THE PERSON WHO MADE SAID ENTRIES ACTUALLY TESTIFIED IN THIS CASE
BUT UNFORTUNATELY HAD NO PERSONAL KNOWLEDGE OF SAID ENTRIES.
 II. THE DECISION OF THE RESPONDENT COURT SHOULD BE REVERSED AS IT HAS ONLY
INADMISSIBLE EVIDENCE TO SUPPORT IT.

First. Petitioner contends that the presentation of the delivery receipts duly accepted by the then Ministry of Public Works and Highways
(MPWH) is required under the contracts (Exhs. A and B) and is a condition precedent for her payment of the amount claimed by private
respondent. Petitioner argues that the entries in private respondent's Book of Collectible Accounts (Exh. K) cannot take the place of the
delivery receipts and that such entries are mere hearsay and, thus, inadmissible in evidence. 14

We agree with the appellate court that the stipulation in the two contracts requiring the submission of delivery receipts does not preclude
proof of delivery of materials by private respondent in some other way. The question is whether the entries in the Book of Collectible
Accounts (Exh. K) constitute competent evidence to show such delivery. Private respondent cites Rule 130, §37 of the Rules of Court
and argues that the entries in question constitute "entries in the course of business" sufficient to prove deliveries made for the government
projects. This provision reads:

Entries in the course of business. — Entries made at, or near the time of the transactions to which they refer, by a person
deceased, outside of the Philippines 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. 15

The admission in evidence of entries in corporate books requires the satisfaction of the following conditions:

1. The person who made the entry must be dead, outside the country 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. 16

As petitioner points out, the business entries in question (Exh. K) do not meet the first and third requisites. Dolores Aday, who made the
entries, was presented by private respondent to testify on the account of RDC Construction. It was in the course of her testimony that the
entries were presented and marked in evidence. 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.
 Necessity is given as a ground for admitting entries, in that they are the best available evidence. Said a learned judge:
"What a man has actually done and committed to writing when under obligation to do the act, it being in the course of the
business he has undertaken, and he being dead, there seems to be no danger in submitting to the consideration of the
court." The person who maybe called to court to testify on these entries being dead, there arises the necessity of their
admission without the one who made them being called to court be sworn and subjected to cross-examination. And this is
permissible in order to prevent a failure of justice. 17

Moreover, Aday admitted that she had no personal knowledge of the facts constituting the entry. She said she made the entries based
on the bills given to her. But she has no knowledge of the truth or falsity of the facts stated in the bills. The deliveries of the materials
stated in the bills were supervised by "an engineer for (such) functions." 18 The person, therefore, who has personal knowledge of the
facts stated in the entries, i.e., that such deliveries were made in the amounts and on the dates stated, was the company's project
engineer. The entries made by Aday show only that the billings had been submitted to her by the engineer and that she faithfully recorded
the amounts stared therein in the books of account. Whether or not the bills given to Aday correctly reflected the deliveries made in the
amounts and on the dates indicated was a fact that could be established by the project engineer alone who, however, was not presented
during trial. The rule is stated by former Chief Justice Moran, thus:

[W]hen the witness had no personal knowledge of the facts entered by him, and the person who gave him the information
is individually known and may testify as to the facts stated in the entry which is not part of a system of entries where scores
of employees have intervened, such entry is not admissible without the testimony of the informer. 19

Second. It is nonetheless argued by private respondent that although the entries cannot be considered an exception to the hearsay rule,
they may be admitted under Rule 132, §10 20 of the Rules of Court which provides:

Sec. 10. When witness may refer to memorandum. — A witness may be allowed to refresh his memory respecting a fact,
by anything written by himself or under his direction at the time when the fact occurred, or immediately thereafter, or at any
other time when the fact was fresh in his memory and he knew that the same was correctly stated in the writing; but in such
case the writing must be produced and may be inspected by the adverse party, who may, if he chooses, cross-examine the
witness upon it, and may read it in evidence. So, also, a witness may testify from such a writing, though he retain no
recollection of the particular facts, if he is able to swear that the writing correctly stated the transaction when made; but such
evidence must be received with caution.

On the other hand, petitioner contends that evidence which is inadmissible for the purpose for which it was offered cannot be admitted
for another purpose. She cites the following from Chief Justice Moran's commentaries:

The purpose for which the evidence is offered must be specified. Where the offer is general, and the evidence is admissible
for one purpose and inadmissible for another, the evidence should be rejected. Likewise, where the offer is made for two or
more purposes and the evidence is incompetent for one of them, the evidence should be excluded. The reason for the rule
is that "it is the duty of a party to select the competent from the incompetent in offering testimony, and he cannot impose
this duty upon the trial court." Where the evidence is inadmissible for the purpose stated in the offer, it must be rejected,
 though the same may be admissible for another purpose. The rule is stated thus: "If a party . . . opens the particular view
with which he offers any part of his evidence, or states the object to be attained by it, he precludes himself from insisting on
its operation in any other direction, or for any other object; and the reason is, that the opposite party is prevented from
objecting to its competency in any view different from the one proposed. 21

It should be noted, however, that Exh. K is not really being presented for another purpose. Private respondent's counsel offered it for the
purpose of showing the amount of petitioner's indebtedness. He said:

Exhibit "K," your Honor — faithful reproduction of page (17) of the book on Collectible Accounts of the
plaintiff, reflecting the principal indebtedness of defendant in the amount of Two hundred ninety-nine
thousand seven hundred seventeen pesos and seventy-five centavos (P299,717.75) and reflecting as
well the accumulated interest of three percent (3%) monthly compounded such that as of December
11, 1987, the amount collectible from the defendant by the plaintiff is Six hundred sixteen thousand four
hundred thirty-five pesos and seventy-two centavos (P616,435.72); 22

This is also the purpose for which its admission is sought as a memorandum to refresh the memory of Dolores Aday as a witness.
In other words, it is the nature of the evidence that is changed, not the purpose for which it is offered.

Be that as it may, considered as a memorandum, Exh. K does not itself constitute evidence. As explained in Borromeo v. Court of
Appeals:23

Under the above provision (Rule 132, §10), the memorandum used to refresh the memory of the witness does not constitute
evidence, and may not be admitted as such, for the simple reason that the witness has just the same to testify on the basis
of refreshed memory. In other words, where the witness has testified independently of or after his testimony has been
refreshed by a memorandum of the events in dispute, such memorandum is not admissible as corroborative evidence. It is
self-evident that a witness may not be corroborated by any written statement prepared wholly by him. He cannot be more
credible just because he supports his open-court declaration with written statements of the same facts even if he did prepare
them during the occasion in dispute, unless the proper predicate of his failing memory is priorly laid down. What is more,
even where this requirement has been satisfied, the express injunction of the rule itself is that such evidence must be
received with caution, if only because it is not very difficult to conceive and fabricate evidence of this nature. This is doubly
true when the witness stands to gain materially or otherwise from the admission of such evidence . . . . 24

As the entries in question (Exh. K) were not made based on personal knowledge, they could only corroborate Dolores Aday's testimony
that she made the entries as she received the bills.

Third. Does this, therefore, mean there is no competent evidence of private respondent's claim as petitioner argues? 25 The answer is in
the negative. Aside from Exh. K, private respondent presented the following documents:
 1) Exhibits A — Contract Agreement dated 26 April 1985 which contract covers both the Toledo wharf project and the Babag
Road project in Lapulapu City.

2) Exhibit B — Contract Agreement dated 23 July 1985 which covers the DAS Asphalting Project.

3) Exhibit C — Revised Computation of Billings submitted on May 28, 1986.

4) Exhibit D — an affidavit executed by [petitioner] to the effect that she has no more pending or unsettled obligations as
far as Toledo Wharf Road is concerned.

5) Exhibit D-1 — Statement of Work Accomplished on the Road Restoration of Cebu-Toledo wharf project.

6) Exhibit E — another affidavit executed by [petitioner] attesting that she has completely paid her laborers at the project
located at Babag, Lapulapu City

7) Exhibits F, G, G-1, G-2, G-3 — Premiums paid by [private respondent] together with the receipts for filing fees.

8) Exhibits H, I, J — certifications issued by OIC, MPWH, Regional Office; Lapulapu City, City Engineer; Toledo City
Treasurer's Office respectively, proving that RDC construction has no more collectibles with all the said government offices
in connection with its projects.

10) Exhibit L — Bill No. 057 under the account of RDC Construction in the amount of P153,382.75 dated August 24, 1985.

11) Exhibit M — Bill No. 069 (RDC's account), in the amount of P1,701,795.00 dated November 20, 1985.

12) Exhibit N — Bill No. 071 (RDC's account) in the amount of P47,250.00 dated November 22, 1985.

13) Exhibit O — Bill No. 079 (RDC's account) in the amount of P7,290.00 dated December 6, 1985.

As the trial court found:

The entries recorded under Exhibit "K" were supported by Exhibits "L", "M", "N", "O" which are all Socor Billings under the
account of RDC Construction. These billings were presented and duly received by the authorized representatives of
defendant. The circumstances obtaining in the case at bar clearly show that for a long period of time after receipt thereof,
RDC never manifested its dissatisfaction or objection to the aforestated billings submitted by plaintiff. Neither did defendant
immediately protest to plaintiff's alleged incomplete or irregular performance. In view of these facts, we believe Art. 1235 of
the New Civil Code is applicable.
 Art. 1235. When the obligee accepts the performance, knowing its incompleteness and irregularity and without
expressing any protest or objection, the obligation is deemed complied with.

FINALLY, after a conscientious scrutiny of the records, we find Exhibit "D-1" (p. 85 record) to be a material proof of plaintiff's
complete fulfillment of its obligation.

There is no question that plaintiff supplied RDC Construction with Item 302 (Bitunimous Prime Coat), Item 303 (Bituminous
Tack Coat) and Item 310 (Bitunimous Concrete Surface Course) in all the three projects of the latter. The Lutopan Access
Road project, the Toledo wharf project and the Babag-Lapulapu Road project.

On the other hand, no proof was ever offered by defendant to show the presence of other contractors in those projects. We
can therefore conclude that it was Socor Construction Corp. ALONE who supplied RDC with Bituminous Prime Coat,
Bituminous Tack Coat and Bituminous Concrete Surface Course for all the aforenamed three projects. 26

Indeed, while petitioner had previously paid private respondent about P1,400,000.00 for deliveries made in the past, she did not show
that she made such payments only after the delivery receipts had been presented by private respondent. On the other hand, it appears
that petitioner was able to collect the full amount of project costs from the government, so that petitioner would be unjustly enriched at
the expense of private respondent if she is not made to pay what is her just obligation the contracts.

WHEREFORE, the decision of the Court of Appeals is AFFIRMED.1âwphi1.nêt

SO ORDERED.

Bellosillo, Puno, Quisumbing and Buena, JJ., concur.

G.R. No. 164273 March 28, 2007

EMMANUEL B. AZNAR, Petitioner,

vs.
CITIBANK, N.A., (Philippines), Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Before this Court is a Petition for Review assailing the Decision 1 of the Court of Appeals (CA) in CA-G.R. CV No. 62554 dated January
30, 2004 which set aside the November 25, 1998 Order of the Regional Trial Court (RTC) Branch 10, Cebu City and reinstated the
Decision of RTC Branch 20 of Cebu City dated May 29, 1998 in Civil Case No. CEB-16474; and the CA Resolution dated May 26, 2004
denying petitioner’s motion for reconsideration.

The facts are as follows:

Emmanuel B. Aznar (Aznar), a known businessman2 in Cebu, is a holder of a Preferred Master Credit Card (Mastercard) bearing number
5423-3920-0786-7012 issued by Citibank with a credit limit of ₱150,000.00. As he and his wife, Zoraida, planned to take their two
grandchildren, Melissa and Richard Beane, on an Asian tour, Aznar made a total advance deposit of ₱485,000.00 with Citibank with the
intention of increasing his credit limit to ₱635,000.00.3

With the use of his Mastercard, Aznar purchased plane tickets to Kuala Lumpur for his group worth ₱237,000.00. On July 17, 1994,
Aznar, his wife and grandchildren left Cebu for the said destination. 4

Aznar claims that when he presented his Mastercard in some establishments in Malaysia, Singapore and Indonesia, the same was not
honored.5 And when he tried to use the same in Ingtan Tour and Travel Agency (Ingtan Agency) in Indonesia to purchase plane tickets
to Bali, it was again dishonored for the reason that his card was blacklisted by Citibank. Such dishonor forced him to buy the tickets in
cash.6 He further claims that his humiliation caused by the denial of his card was aggravated when Ingtan Agency spoke of swindlers
trying to use blacklisted cards.7 Aznar and his group returned to the Philippines on August 10, 1994. 8

On August 26, 1994, Aznar filed a complaint for damages against Citibank, docketed as Civil Case No. CEB-16474 and raffled to RTC
Branch 20, Cebu City, claiming that Citibank fraudulently or with gross negligence blacklisted his Mastercard which forced him, his wife
and grandchildren to abort important tour destinations and prevented them from buying certain items in their tour.9 He further claimed
that he suffered mental anguish, serious anxiety, wounded feelings, besmirched reputation and social humiliation due to the wrongful
blacklisting of his card.10 To prove that Citibank blacklisted his Mastercard, Aznar presented a computer print-out, denominated as ON-
LINE AUTHORIZATIONS FOREIGN ACCOUNT ACTIVITY REPORT, issued to him by Ingtan Agency (Exh. "G") with the signature of
one Victrina Elnado Nubi (Nubi)11 which shows that his card in question was "DECL OVERLIMIT" or declared over the limit. 12
Citibank denied the allegation that it blacklisted Aznar’s card. It also contended that under the terms and conditions governing the issuance
and use of its credit cards, Citibank is exempt from any liability for the dishonor of its cards by any merchant affiliate, and that its liability
for any action or incident which may be brought against it in relation to the issuance and use of its credit cards is limited to ₱1,000.00 or
the actual damage proven whichever is lesser.13

To prove that they did not blacklist Aznar’s card, Citibank’s Credit Card Department Head, Dennis Flores, presented Warning Cancellation
Bulletins which contained the list of its canceled cards covering the period of Aznar’s trip. 14

On May 29, 1998, RTC Branch 20, Cebu City, through Judge Ferdinand J. Marcos, rendered its decision dismissing Aznar’s complaint
for lack of merit.15 The trial court held that as between the computer print-out16 presented by Aznar and the Warning Cancellation
Bulletins17 presented by Citibank, the latter had more weight as their due execution and authenticity were duly established by
Citibank.18 The trial court also held that even if it was shown that Aznar’s credit card was dishonored by a merchant establishment,
Citibank was not shown to have acted with malice or bad faith when the same was dishonored.19

Aznar filed a motion for reconsideration with motion to re-raffle the case saying that Judge Marcos could not be impartial as he himself is
a holder of a Citibank credit card.20 The case was re-raffled21 and on November 25, 1998, the RTC, this time through Judge Jesus S. De
la Peña of Branch 10 of Cebu City, issued an Order granting Aznar’s motion for reconsideration, as follows:

WHEREFORE, the Motion for Reconsideration is hereby GRANTED. The DECISION dated May 29, 1998 is hereby reconsidered, and
consequently, the defendant is hereby condemned liable to pay the following sums of money:

a) ₱10,000,000.00 as moral damages;

b) ₱5,000,000.00 as exemplary damages;

c) ₱1,000,000.00 as attorney’s fees; and

d) ₱200,000.00 as litigation expenses.22

Judge De la Peña ruled that: it is improbable that a man of Aznar’s stature would fabricate Exh. "G" or the computer print-out which shows
that Aznar’s Mastercard was dishonored for the reason that it was declared over the limit; Exh. "G" was printed out by Nubi in the ordinary
or regular course of business in the modern credit card industry and Nubi was not able to testify as she was in a foreign country and
cannot be reached by subpoena; taking judicial notice of the practice of automated teller machines (ATMs) and credit card facilities which
readily print out bank account status, Exh. "G" can be received as prima facie evidence of the dishonor of Aznar’s Mastercard; no rebutting
evidence was presented by Citibank to prove that Aznar’s Mastercard was not dishonored, as all it proved was that said credit card was
not included in the blacklisted cards; when Citibank accepted the additional deposit of ₱485,000.00 from Aznar, there was an implied
novation and Citibank was obligated to increase Aznar’s credit limit and ensure that Aznar will not encounter any embarrassing situation
with the use of his Mastercard; Citibank’s failure to comply with its obligation constitutes gross negligence as it caused Aznar
inconvenience, mental anguish and social humiliation; the fine prints in the flyer of the credit card limiting the liability of the bank to
₱1,000.00 or the actual damage proven, whichever is lower, is a contract of adhesion which must be interpreted against Citibank. 23

Citibank filed an appeal with the CA and its counsel filed an administrative case against Judge De la Peña for grave misconduct, gross
ignorance of the law and incompetence, claiming among others that said judge rendered his decision without having read the transcripts.
The administrative case was held in abeyance pending the outcome of the appeal filed by Citibank with the CA.24lawphi1.net

On January 30, 2004, the CA rendered its Decision granting Citibank’s appeal thus:

WHEREFORE, the instant appeal is GRANTED. The assailed order of the Regional Trial Court, 7th Judicial Region, Branch 10, Cebu
City, in Civil Case No. CEB-16474, is hereby SET ASIDE and the decision, dated 29 May 1998 of the Regional Trial Court, 7th Judicial
Region, Branch 20, Cebu City in this case is REINSTATED.

SO ORDERED.25

The CA ruled that: Aznar had no personal knowledge of the blacklisting of his card and only presumed the same when it was dishonored
in certain establishments; such dishonor is not sufficient to prove that his card was blacklisted by Citibank; Exh. "G" is an electronic
document which must be authenticated pursuant to Section 2, Rule 5 of the Rules on Electronic Evidence26 or under Section 20 of Rule
132 of the Rules of Court27 by anyone who saw the document executed or written; Aznar, however, failed to prove the authenticity of Exh.
"G", thus it must be excluded; the unrefuted testimony of Aznar that his credit card was dishonored by Ingtan Agency and certain
establishments abroad is not sufficient to justify the award of damages in his favor, absent any showing that Citibank had anything to do
with the said dishonor; Citibank had no absolute control over the actions of its merchant affiliates, thus it should not be held liable for the
dishonor of Aznar’s credit card by said establishments.28

Aznar filed a motion for reconsideration which the CA dismissed in its Resolution dated May 26, 2004.29

Parenthetically, the administrative case against Judge De la Peña was activated and on April 29, 2005, the Court’s Third Division30 found
respondent judge guilty of knowingly rendering an unjust judgment and ordered his suspension for six months. The Court held that Judge
De la Peña erred in basing his Order on a manifestation submitted by Aznar to support his Motion for Reconsideration, when no copy of
such manifestation was served on the adverse party and it was filed beyond office hours. The Court also noted that Judge De la Peña
made an egregiously large award of damages in favor of Aznar which opened himself to suspicion. 31

Aznar now comes before this Court on a petition for review alleging that: the CA erroneously made its own factual finding that his
Mastercard was not blacklisted when the matter of blacklisting was already a non-issue in the November 25, 1998 Order of the RTC; the
RTC found that Aznar’s Mastercard was dishonored for the reason that it was declared over the credit limit; this factual finding is supported
by Exh. "G" and by his (Aznar’s) testimony; the issue of dishonor on the ground of ‘DECL OVERLIMIT’, although not alleged in the
complaint, was tried with the implied consent of the parties and should be treated as if raised in the pleadings pursuant to Section 5, Rule
10 of the Rules of Civil Procedure;32 Exh. "G" cannot be excluded as it qualifies as an electronic evidence following the Rules on Electronic
Evidence which provides that print-outs are also originals for purposes of the Best Evidence Rule; Exh. "G" has remained complete and
unaltered, apart from the signature of Nubi, thus the same is reliable for the purpose for which it was generated; the RTC judge correctly
credited the testimony of Aznar on the issuance of the computer print-out as Aznar saw that it was signed by Nubi; said testimony
constitutes the "other evidence showing the integrity and reliability of the print-out to the satisfaction of the judge" which is required under
the Rules on Electronic Evidence; the trial court was also correct in finding that Citibank was grossly negligent in failing to credit the
additional deposit and make the necessary entries in its systems to prevent Aznar from encountering any embarrassing situation with the
use of his Mastercard.33

Citibank, in its Comment, contends that: Aznar never had personal knowledge that his credit card was blacklisted as he only presumed
such fact; the issue of dishonor on the ground that the card was declared over the limit was also never tried with the implied consent of
both parties; Aznar’s self-serving testimony is not sufficient to prove the integrity and reliability of Exh. "G"; Aznar did not declare that it
was Nubi who printed the document and that said document was printed in his presence as he merely said that the print-out was provided
him; there is also no annotation on Exh. "G" to establish that it was Nubi who printed the same; assuming further that Exh. "G" is admissible
and Aznar’s credit card was dishonored, Citibank still cannot be held liable for damages as it only shows that Aznar’s credit card was
dishonored for having been declared over the limit; Aznar’s cause of action against Citibank hinged on the alleged blacklisting of his card
which purportedly caused its dishonor; dishonor alone, however, is not sufficient to award Aznar damages as he must prove that the
dishonor was caused by a grossly negligent act of Citibank; the award of damages in favor of Aznar was based on Article 1170 34 of the
Civil Code, i.e., there was fraud, negligence or delay in the performance of its obligation; there was no proof, however that Citibank
committed fraud or delay or that it contravened its obligations towards Aznar; the terms and conditions of the credit card cannot be
considered as a contract of adhesion since Aznar was entirely free to reject the card if he did not want the conditions stipulated therein;
a person whose stature is such that he is expected to be more prudent with respect to his transactions cannot later on be heard to
complain for being ignorant or having been forced into merely consenting to the contract. 35

In his Reply, Aznar contended that to a layman, the term "blacklisting" is synonymous with the words "hot list" or "declared overlimit"; and
whether his card was blacklisted or declared over the limit, the same was dishonored due to the fault or gross negligence of Citibank.36

Aznar also filed a Memorandum raising as issues the following:

I. Whether or not the augmentation deposit in the amount of ₱485,000.00 of the Petitioner constitutes relative extinctive novation;

II. Whether or not the purchases made by Petitioner were beyond his credit limit;

III. Whether or not the issues of dishonor by reason of overlimit was tried with the consent of the parties;

IV. Whether or not the "On Line Authorization Report" is an electronic document."

V. Whether or not the "On Line Authorization Report" constitutes electronic evidence;

VI. Whether or not the agreement between the parties is a contract of adhesion;
 VII. Whether or not the Respondent is negligent in not crediting the deposits of the Respondent.37

Aznar further averred in his Memorandum that Citibank assured him that with the use of his Mastercard, he would never be turned down
by any merchant store, and that under Section 43, Rule 130 of the Rules of Court, Exh. "G" is admissible in evidence. 38

Citibank also filed a Memorandum reiterating its earlier arguments.39

Stripped to its essentials, the only question that needs to be answered is: whether Aznar has established his claim against Citibank.

The answer is no.

It is basic that in civil cases, the burden of proof rests on the plaintiff to establish his case based on a preponderance of evidence. The
party that alleges a fact also has the burden of proving it. 40

In the complaint Aznar filed before the RTC, he claimed that Citibank blacklisted his Mastercard which caused its dishonor in several
establishments in Malaysia, Singapore, and Indonesia, particularly in Ingtan Agency in Indonesia where he was humiliated when its staff
insinuated that he could be a swindler trying to use a blacklisted card.

As correctly found by the RTC in its May 29, 1998 Decision, Aznar failed to prove with a preponderance of evidence that Citibank
blacklisted his Mastercard or placed the same on the "hot list." 41

Aznar in his testimony admitted that he had no personal knowledge that his Mastercard was blacklisted by Citibank and only presumed
such fact from the dishonor of his card.

Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list was confirmed to be authentic".

Now, who confirmed that the blacklisting of your Preferred Citibank Mastercard was authentic?

A. Okey. When I presented this Mastercard, my card rather, at the Merchant’s store, I do not know, they called up somebody for verification
then later they told me that "your card is being denied". So, I am not in a position to answer that. I do not know whom they called up;
where they verified. So, when it is denied that’s presumed to be blacklisted.

Q. So the word that was used was denied?

A. Denied.

Q. And after you were told that your card was denied you presumed that it was blacklisted?
A. Definitely.

Q. So your statement that your card was allegedly blacklisted is only your presumption drawn from the fact, from your
allegations, that it was denied at the merchandise store?

A. Yes, sir.42 (Emphasis supplied)

The dishonor of Aznar’s Mastercard is not sufficient to support a conclusion that said credit card was blacklisted by Citibank, especially
in view of Aznar’s own admission that in other merchant establishments in Kuala Lumpur and Singapore, his Mastercard was accepted
and honored.43

Aznar puts much weight on the ON-LINE AUTHORIZATION FOREIGN ACCOUNT ACTIVITY REPORT, a computer print-out handed to
Aznar by Ingtan Agency, marked as Exh. "G", to prove that his Mastercard was dishonored for being blacklisted. On said print-out appears
the words "DECL OVERLIMIT" opposite Account No. 5423-3920-0786-7012.

As correctly pointed out by the RTC and the CA, however, such exhibit cannot be considered admissible as its authenticity and due
execution were not sufficiently established by petitioner.

The prevailing rule at the time of the promulgation of the RTC Decision is Section 20 of Rule 132 of the Rules of Court. It provides that
whenever any private document offered as authentic is received in evidence, its due execution and authenticity must be proved either by
(a) anyone who saw the document executed or written; or (b) by evidence of the genuineness of the signature or handwriting of the
maker.

Aznar, who testified on the authenticity of Exh. "G," did not actually see the document executed or written, neither was he able to provide
evidence on the genuineness of the signature or handwriting of Nubi, who handed to him said computer print-out. Indeed, all he was able
to allege in his testimony are the following:

Q I show to you a Computer Print Out captioned as On Line Authorization Activity Report where it is shown that the Preferred Master
Card Number 5423392007867012 was denied as per notation on the margin of this Computer Print Out, is this the document evidencing
the dishonor of your Preferred Master Card?

xxxx

A Yes sir, after that Ingtan incident, I went straight to the Service Agency there and on the left hand side you will be able to see the name
of the person in-charged [sic] there certifying that really my card is being blacklisted and there is the signature there of the agency.

ATTY. NAVARRO:
The witness, your honor, is pointing to the signature over the handwritten name of Victrina Elnado Nubi which I pray, your honor, that the
Computer Print Out be marked as our Exhibit "G" and the remarks at the left hand bottom portion of Victorina Elnado Nubi with her
signature thereon be encircled and be marked as our Exhibit "G-1".

xxxx

Q Mr. Aznar, where did you secure this Computer Print Out marked as Exhibit "G"?

A This is provided by that Agency, your honor. They were the ones who provided me with this. So what the lady did, she gave
me the Statement and I requested her to sign to show proof that my Preferred Master Card has been rejected. 44 (Emphasis
supplied).

Even if examined under the Rules on Electronic Evidence, which took effect on August 1, 2001, and which is being invoked by Aznar in
this case, the authentication of Exh. "G" would still be found wanting.

Pertinent sections of Rule 5 read:

Section 1. Burden of proving authenticity. – The person seeking to introduce an electronic document in any legal proceeding has the
burden of proving its authenticity in the manner provided in this Rule.

Section 2. Manner of authentication. – Before any private electronic document offered as authentic is received in evidence, its authenticity
must be proved by any of the following means:

(a) by evidence that it had been digitally signed by the person purported to have signed the same;

(b) by evidence that other appropriate security procedures or devices as may be authorized by the Supreme Court or by law for
authentication of electronic documents were applied to the document; or

(c) by other evidence showing its integrity and reliability to the satisfaction of the judge.

Aznar claims that his testimony complies with par. (c), i.e., it constitutes the "other evidence showing integrity and reliability of Exh. "G"
to the satisfaction of the judge." The Court is not convinced. Aznar’s testimony that the person from Ingtan Agency merely handed him
the computer print-out and that he thereafter asked said person to sign the same cannot be considered as sufficient to show said print-
out’s integrity and reliability. As correctly pointed out by Judge Marcos in his May 29, 1998 Decision, Exh. "G" does not show on its face
that it was issued by Ingtan Agency as Aznar merely mentioned in passing how he was able to secure the print-out from the agency;
Aznar also failed to show the specific business address of the source of the computer print-out because while the name of Ingtan Agency
was mentioned by Aznar, its business address was not reflected in the print-out.45
Indeed, Aznar failed to demonstrate how the information reflected on the print-out was generated and how the said information could be
relied upon as true. In fact, Aznar to repeat, testified as follows:

ATTY. NERI

Q Now, paragraph 12 also states and I quote: "its entry in the "hot" list was confirmed to be authentic"

Now, who confirmed that the blacklisting of your Preferred Citibank Mastercard was authentic?

A Okey. When I presented this Mastercard, my card rather, at the Merchant’s store, I do not know, they called up somebody for verification
then later they told me that "your card is being denied". So, I am not in a position to answer that. I do not know whom they called up;
where they verified. So, when it is denied that’s presumed to be blacklisted.46 (Emphasis supplied)

Aznar next invokes Section 43 of Rule 130 of the Rules of Court, which pertains to entries in the course of business, to support Exh. "G".
Said provision reads:

Sec. 43. 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 rule, however, the following conditions are required:

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. 47

As correctly pointed out by the RTC in its May 29, 1998 Decision, there appears on the computer print-out the name of a certain "Victrina
Elnado Nubi" and a signature purportedly belonging to her, and at the left dorsal side were handwritten the words "Sorry for the delay
since the records had to be retrieved. Regards. Darryl Mario." It is not clear therefore if it was Nubi who encoded the information stated
in the print-out and was the one who printed the same. The handwritten annotation signed by a certain Darryl Mario even suggests that
it was Mario who printed the same and only handed the print-out to Nubi. The identity of the entrant, required by the provision above
mentioned, was therefore not established. Neither did petitioner establish in what professional capacity did Mario or Nubi make the entries,
or whether the entries were made in the performance of their duty in the ordinary or regular course of business or duty.

And even if Exh. "G" is admitted as evidence, it only shows that the use of the credit card of petitioner was denied because it was already
over the limit. There is no allegation in the Complaint or evidence to show that there was gross negligence on the part of Citibank in
declaring that the credit card has been used over the limit.

The Court is also perplexed that stated on Exh. "G" is the amount of "6,289,195.10" opposite petitioner's account number, which data,
petitioner did not clarify.48 As plaintiff in this case, it was incumbent on him to prove that he did not actually incur the said amount which
is above his credit limit. As it is, the Court cannot see how Exh. "G" could help petitioner's claim for damages.

The claim of petitioner that Citibank blacklisted his card through fraud or gross negligence is likewise effectively negated by the evidence
of Citibank which was correctly upheld by the RTC and the CA, to wit:

xxx Mr. Dennis Flores, the Head of the Credit Card Department of defendant Bank, presented documents known as Warning Cancellation
Bulletin for July 10, 17, 24, and 31, 1994 (Exhibits ‘3’, ‘3-1’ to ‘3-38’, ‘4’, ‘4-1’ to ‘4-38’ ‘5’, ‘5-1’ to ‘5-39’ and ‘6’, ‘6-1’ to ‘6-39’), for August
7, 1994 (Exhibit[s] ‘7’, ‘7-1’ to ‘7-37’), for August 8, 1994 (Exhibit[s] ‘8’, ‘8-1’ to ‘8-20’) which show that plaintiff’s Citibank preferred
mastercard was not placed in a hot list or was not blacklisted.

The Warning Cancellation Bulletins (WCB) (Exhibits ‘3’, ‘4’, ‘5’, ‘6’, ‘7’, ‘8’ and their submarkings) which covered the period of four (4)
days in July 1994 (from July 10, 17, 24 and 31, 1994), and two (2) days in August 1994, (August 7 and 8, 1994), when plaintiff traveled
in the aforementioned Asian countries showed that said Citibank preferred mastercard had never been placed in a ‘hot list’ or the same
was blacklisted, let alone the fact that all the credit cards which had been cancelled by the defendant bank were all contained, reported
and listed in said Warning Cancellation Bulletin which were issued and released on a regular basis.

These three hundred (300) Warning Cancellation Bulletins pieces of documentary proofs, all in all, adduced by defendant pointed to the
fact that said plaintiff’s credit car (sic) was not among those found in said bulletins as having been cancelled for the period for which the
said bulletins had been issued.

Between said computer print out (Exhibit ‘G’) and the Warning Cancellation Bulletins (Exhibits ‘3’ to ‘8’ and their submarkings) the latter
documents adduced by defendant are entitled to greater weight than that said computer print out presented by plaintiff that bears on the
issue of whether the plaintiff’s preferred master card was actually placed in the ‘hot list’ or blacklisted for the following reasons:

The first reason is that the due execution and authentication of these Warning Cancellation Bulletins (or WCB) have been duly established
and identified by defendant’s own witness, Dennis Flores, one of the bank’s officers, who is the head of its credit card department, and,
therefore, competent to testify on the said bulletins as having been issued by the defendant bank showing that plaintiff’s preferred master
credit card was never blacklisted or placed in the Bank’s ‘hot list’. But on the other hand, plaintiff’s computer print out (Exhibit ‘G’) was
never authenticated or its due execution had never been duly established. Thus, between a set of duly authenticated commercial
documents, the Warning Cancellation Bulletins (Exhibits ‘3’ to ‘8’ and their submarkings), presented by defendants (sic) and an
unauthenticated private document, plaintiff’s computer print out (Exhibit ‘G’), the former deserves greater evidentiary weight supporting
the findings of this Court that plaintiff’s preferred master card (Exhibit ‘1’) had never been blacklisted at all or placed in a so-called ‘hot
list’ by defendant.49

Petitioner next argues that with the additional deposit he made in his account which was accepted by Citibank, there was an implied
novation and Citibank was under the obligation to increase his credit limit and make the necessary entries in its computerized systems in
order that petitioner may not encounter any embarrassing situation with the use of his credit card. Again, the Court finds that petitioner's
argument on this point has no leg to stand on.

Citibank never denied that it received petitioner’s additional deposit.50 It even claimed that petitioner was able to purchase plane tickets
from Cebu to Kuala Lumpur in the amount of ₱237,170.00, which amount was beyond his ₱150,000.00 limit, because it was able to credit
petitioner’s additional deposit to his account. Flores of Citibank testified:

COURT:

Q When was this ticket purchased, after the account was augmented

or before?

A After the account was augmented, Your Honor, because there is no way we can approve a P250,000.00 purchase with a P150,000.00
credit limit.51

xxx

ATTY. NERI:

For the record, your honor, the deposit of P450,000.00 was made as per exhibit of the plaintiff on June 28. The purchase of the
tickets amount to P237,000.00 was approved and debited on the account of Mr. Aznar on July 20, your honor. The deposit was
made about a month before the purchase of the tickets as per documentary exhibits, your honor.

COURT:

So, Atty. Navarro, what do you say to that explanation?

ATTY. NAVARRO [counsel of petitioner]:

That is correct, your honor, that is borne out by the records, your honor. (Emphasis supplied)
COURT: (to witness)

Q So, I think Atty. Navarro is only after whether a credit line could be extended?

A Yes, your honor.

Q Even if there is no augmenting?

A No, sir, it is not possible. So, the only way the ₱237,000.00 transaction could be approved was by way of advance payment
which actually happened in this case because there is no way that the ₱237,000.00 can be approved with the ₱150,000.00 credit
limit.52 (Emphasis supplied)

The allegations of blacklisting not having been proved, is Citibank liable for damages for the dishonor of Aznar’s Mastercard?

Again, the answer is no.

Citibank, in its attempt to evade liability, invokes paragraphs 7 and 15 of the terms and conditions governing the issuance of its Mastercard
which read:

7. MERCHANT AFFILIATES. [Citibank is] not responsible if the Card is not honored by any merchant affiliate for any reason. Furthermore,
[the cardholder] will not hold [Citibank] responsible for any defective product or service purchased through the Card.

xxxx

15. LIMITATION OF LIABILITY. In any action arising from this agreement or any incident thereto which [the cardholder] or any other party
may file against [Citibank], [Citibank’s] liability shall not exceed One Thousand Pesos [₱1,000.00] or the actual damages proven,
whichever is lesser.53

On this point, the Court agrees with Aznar that the terms and conditions of Citibank’s Mastercard constitute a contract of adhesion. It is
settled that contracts between cardholders and the credit card companies are contracts of adhesion, so-called, because their terms are
prepared by only one party while the other merely affixes his signature signifying his adhesion thereto.54

In this case, paragraph 7 of the terms and conditions states that "[Citibank is] not responsible if the Card is not honored by any merchant
affiliate for any reason x x x". While it is true that Citibank may have no control of all the actions of its merchant affiliates, and should not
be held liable therefor, it is incorrect, however, to give it blanket freedom from liability if its card is dishonored by any merchant affiliate for
any reason. Such phrase renders the statement vague and as the said terms and conditions constitute a contract of adhesion, any
ambiguity in its provisions must be construed against the party who prepared the contract,55 in this case Citibank.
Citibank also invokes paragraph 15 of its terms and conditions which limits its liability to ₱1,000.00 or the actual damage proven,
whichever is lesser.

Again, such stipulation cannot be considered as valid for being unconscionable as it precludes payment of a larger amount even though
damage may be clearly proven. This Court is not precluded from ruling out blind adherence to the terms of a contract if the attendant
facts and circumstances show that they should be ignored for being obviously too one-sided.56

The invalidity of the terms and conditions being invoked by Citibank, notwithstanding, the Court still cannot award damages in favor of
petitioner.

It is settled that in order that a plaintiff may maintain an action for the injuries of which he complains, he must establish that such injuries
resulted from a breach of duty which the defendant owed to the plaintiff – a concurrence of injury to the plaintiff and legal responsibility
by the person causing it. The underlying basis for the award of tort damages is the premise that an individual was injured in contemplation
of law; thus there must first be a breach before damages may be awarded and the breach of such duty should be the proximate cause of
the injury.57

It is not enough that one merely suffered sleepless nights, mental anguish or serious anxiety as a result of the actuations of the other
party. It is also required that a culpable act or omission was factually established, that proof that the wrongful act or omission of the
defendant is shown as the proximate cause of the damage sustained by the claimant and that the case is predicated on any of the
instances expressed or envisioned by Arts. 221958 and 222059 of the Civil Code.60

In culpa contractual or breach of contract, moral damages are recoverable only if the defendant has acted fraudulently or in bad faith, or
is found guilty of gross negligence amounting to bad faith, or in wanton disregard of his contractual obligations. The breach must
be wanton, reckless, malicious or in bad faith, oppressive or abusive.61

While the Court commiserates with Aznar for whatever undue embarrassment he suffered when his credit card was dishonored by Ingtan
Agency, especially when the agency’s personnel insinuated that he could be a swindler trying to use blacklisted cards, the Court cannot
grant his present petition as he failed to show by preponderance of evidence that Citibank breached any obligation that would make it
answerable for said suffering.

As the Court pronounced in BPI Express Card Corporation v. Court of Appeals,62

We do not dispute the findings of the lower court that private respondent suffered damages as a result of the cancellation of his credit
card. However, there is a material distinction between damages and injury. Injury is the illegal invasion of a legal right; damage is the
loss, hurt, or harm which results from the injury; and damages are the recompense or compensation awarded for the damage suffered.
Thus, there can be damage without injury to those instances in which the loss or harm was not the result of a violation of a legal duty. In
such cases, the consequences must be borne by the injured person alone, the law affords no remedy for damages resulting from an act
which does not amount to a legal injury or wrong. These situations are often called damnum absque injuria.63
WHEREFORE, the petition is denied for lack of merit.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice
G.R. No. 155550 January 31, 2008

NORTHWEST AIRLINES, INC., petitioner,

vs.
STEVEN P. CHIONG, respondent.

DECISION

NACHURA, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court seeking the reversal of the Court of Appeals (CA)
Decision1 in CA-G.R. CV No. 503082 which affirmed in toto the Regional Trial Court (RTC) Decision3 holding petitioner Northwest Airlines,
Inc. (Northwest) liable for breach of contract of carriage.

On March 14, 1989, Philimare Shipping and Seagull Maritime Corporation (Philimare), as the authorized Philippine agent of TransOcean
Lines (TransOcean), hired respondent Steven Chiong as Third Engineer of TransOcean’s vessel M/V Elbia at the San Diego, California
Port. Under the service crew agreement, Chiong was guaranteed compensation at a monthly salary of US$440.00 and a monthly overtime
pay of US$220.00, or a total of US$7,920.00 for one year.

Subsequently, on March 27, 1989, Philimare dispatched a Letter of Guarantee to CL Hutchins & Co., Inc., TransOcean’s agent at the
San Diego Port, confirming Chiong’s arrival thereat in time to board the M/V Elbia which was set to sail on April 1, 1989 (California, United
States time). For this purpose, Philimare purchased for Chiong a Northwest plane ticket for San Diego, California with a departure date
of April 1, 1989 from Manila. Ten (10) days before his scheduled departure, Chiong fetched his entire family from Samar and brought
them to Manila to see him off at the airport.

On April 1, 1989, Chiong arrived at the Manila International Airport 4 (MIA), at about 6:30 a.m., three (3) hours before the scheduled time
of departure. Marilyn Calvo, Philimare’s Liaison Officer, met Chiong at the departure gate, and the two proceeded to the Philippine Coast
Guard (PCG) Counter to present Chiong’s seaman service record book for clearance. Thereafter, Chiong’s passport was duly stamped,
after complying with government requirements for departing seafarers.

Calvo remained at the PCG Counter while Chiong proceeded to queue at the Northwest check-in counter. When it was Chiong’s turn, the
Northwest personnel5 informed him that his name did not appear in the computer’s list of confirmed departing passengers. Chiong was
then directed to speak to a "man in barong" standing outside Northwest’s counters from whom Chiong could allegedly obtain a boarding
pass. Posthaste, Chiong approached the "man in barong" who demanded US$100.00 in exchange therefor. Without the said amount,
and anxious to board the plane, Chiong queued a number of times at Northwest’s Check-in Counter and presented his ticket. However,
the Northwest personnel at the counter told him to simply wait and that he was being a pest.

Frustrated, Chiong went to Calvo at the PCG counter and inquired if she had money so he could obtain a boarding pass from the "man
in barong." Calvo, who already saw that something was amiss, insisted that Chiong’s plane ticket was confirmed and as such, he could
check-in smoothly and board the plane without shelling out US$100.00 for a boarding pass. Ultimately, Chiong was not allowed to board
Northwest Flight No. 24 bound for San Diego that day and, consequently, was unable to work at the M/V Elbia by April 1, 1989 (California,
U.S.A. time).

It appears that Chiong’s name was crossed out and substituted with "W. Costine" in Northwest’s Air Passenger Manifest. 6

In a letter dated April 3, 1989, Chiong’s counsel demanded as recompense: (1) the amount equivalent to Chiong’s salary under the latter’s
Crew Agreement7 with TransOcean; (2) P15,000.00 for Chiong’s expenses in fetching and bringing his family from Samar to Manila;
(3) P500,000.00 as moral damages; and (4) P500,000.00 as legal fees.8

Northwest demurred. Thus, on May 24, 1989, Chiong filed a Complaint for breach of contract of carriage before the RTC. Northwest filed
a Motion to Dismiss9 the complaint citing the trial court’s lack of jurisdiction over the subject matter of the case, but the trial court denied
the same.10

In its Answer,11 Northwest contradicted the claim that it breached its contract of carriage with Chiong, reiterating that Chiong had no cause
of action against it because per its records, Chiong was a "no-show" passenger for Northwest Flight No. 24 on April 1, 1989.

In the RTC’s Pre-trial Order12 based on the parties’ respective Pre-trial Briefs,13 the triable issues were limited to the following:

(a) Whether [Chiong] was bumped-off by [Northwest] from Flight NW 24 or whether [Chiong] "no-showed" for said flight.

(b) If defendant is found guilty of having breached its contract of carriage with plaintiff, what damages are awardable to plaintiff
and how much.

In the course of proceedings, Northwest, on September 14, 1990, filed a separate criminal complaint for False Testimony 14 against Chiong
based on the latter’s testimony that he did not leave the Philippines after April 1, 1989 contrary to the notations in his seaman service
record book that he had left the country on April 17, 1989, and returned on October 5 of the same year. Chiong did not participate in the
preliminary investigation; thus, on December 14, 1990, the City Prosecutor of Manila filed an Information against Chiong with the RTC
Manila, Branch 54, docketed as Criminal Case No. 90-89722.

In the meantime, after a flurry of motions filed by Northwest in the civil case were denied by the RTC, Northwest filed a Petition
for Certiorari before the CA imputing grave abuse of discretion to the RTC. 15 Correlatively, Northwest moved for a suspension of the
proceedings before the trial court. However, both the Petition for Certiorari and Motion for Suspension of the proceedings were denied
by the CA and RTC, respectively.16

After trial, the RTC rendered a Decision finding preponderance of evidence in favor of Chiong, and holding Northwest liable for breach of
contract of carriage. The RTC ruled that the evidence adduced by the parties supported the conclusion that Chiong was deliberately
prevented from checking-in and his boarding pass unjustifiably withheld to accommodate an American passenger by the name of W.
Costine.

The dispositive portion of the RTC decision reads:

WHEREFORE, premises considered, in consideration of all the foregoing, judgment is hereby rendered, ordering the defendant
liable to plaintiff in damages by reason of the latter’s inability to take defendant’s NW Flight No. 24 on April 1, 1989, for the following
amounts:

1) U.S.$8,447.0017 or its peso equivalent at the time of finality of this judgment with legal interests until fully paid,
representing compensatory damages due to plaintiff’s loss of income for one (1) year as a direct result of defendant’s breach
of contract of carriage;

2) P15,000.00, Philippine Currency, representing plaintiff’s actual incurred damages as a consequence of his failure to avail
of defendant’s Flight No. 24 on April 1, 1989;

3) P200,000.00, Philippine Currency, representing moral damages suffered and sustained by the plaintiff as a result of
defendant’s breach of contract of carriage;

4) P200,000.00, Philippine Currency, representing exemplary or punitive damages due to plaintiff from defendant, owing to
the latter’s breach of contract of carriage with malice and fraud; and

5) P200,000.00, Philippine Currency, for and as attorney’s fees, plus costs of suit.

SO ORDERED.

On appeal, the CA affirmed in toto the ruling of the RTC. Identical to the RTC’s findings, those of the CA were as follows: on April 1, 1989,
Chiong was at the MIA three hours before the 10:15 a.m. departure time for Northwest Flight No. 24. Contrary to Northwest’s claim that
Chiong was a "no-show" passenger, the CA likewise concluded, as the RTC did, that Chiong was not allowed to check-in and was not
issued a boarding pass at the Northwest check-in counter to accommodate a certain W. Costine. As for Northwest’s defense that Chiong
had left the country after April 1, 1989 and worked for M/V Elbia, the CA ruled that Northwest’s failure to raise this defense in its Answer
or Motion to Dismiss is equivalent to a waiver thereof. The CA declared that, in any event, Northwest failed to present any evidence to
prove that Chiong had worked under the original crew agreement.

Hence, this recourse.

Northwest ascribes grievous errors to the CA when the appellate court ruled that: (1) Northwest breached the contract of carriage with
Chiong who was present at the MIA on April 1, 1989 to board Northwest’s Flight No. 24; (2) As a result of the breach, Northwest is liable
to Chiong for compensatory, actual, moral and exemplary damages, attorney’s fees, and costs of suit; and (3) Northwest’s Exhibits "2"
and "3," the Flight Manifest and the Passenger Name Record, respectively, were hearsay evidence and ought to be excluded from the
records.

The petition must fail.

We are in complete accord with the common ruling of the lower courts that Northwest breached the contract of carriage with Chiong, and
as such, he is entitled to compensatory, actual, moral and exemplary damages, attorney’s fees and costs of suit.

Northwest contends that Chiong, as a "no-show" passenger on April 1, 1989, already defaulted in his obligation to abide by the terms and
conditions of the contract of carriage;18 and thus, Northwest could not have been in breach of its reciprocal obligation to transport Chiong.
In sum, Northwest insists that Chiong’s testimony is a complete fabrication, supposedly demonstrated by the following: (1) Chiong’s
seaman service record book reflects that he left the Philippines after April 1, 1989, specifically on April 17, 1989, to board the M/V Elbia,
and was discharged therefrom upon his personal request; (2) the Information filed against Chiong for False Testimony; and (3) the Flight
Manifest and the Passenger Name Record both indicate that he was a "no-show" passenger.

We are not convinced.

The records reveal that Chiong, as plaintiff in the trial court, satisfied the burden of proof required in civil cases, i.e., preponderance of
evidence. Section 1 of Rule 133 provides:

SECTION 1. Preponderance of evidence, how determined. – In civil cases, the party having the burden of proof must establish his
case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues
involved lies, the court may consider all the facts and circumstance of the case, the witnesses’ manner of testifying, their
intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they
testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far
as the same may legitimately appear upon the trial. The court may also consider the number of witnesses, though preponderance
is not necessarily with the greater number.

In this regard, the Court notes that, in addition to his testimony, Chiong’s evidence consisted of a Northwest ticket for the April 1, 1989
Flight No. 24, Chiong’s passport and seaman service record book duly stamped at the PCG counter, and the testimonies of Calvo,
Florencio Gomez,19 and Philippine Overseas Employment and Administration (POEA) personnel who all identified the signature and
stamp of the PCG on Chiong’s passport.

We have scoured the records, and found no reason to depart from the well-settled rule that factual findings of the lower courts deserve
the utmost respect and are not to be disturbed on appeal.20 Indeed, Chiong’s Northwest ticket for Flight No. 24 on April 1, 1989, coupled
with the PCG stamps on his passport showing the same date, is direct evidence that he was present at MIA on said date as he intended
to fly to the United States on board that flight. As testified to by POEA personnel and officers, the PCG stamp indicates that a departing
seaman has passed through the PCG counter at the airport, surrendered the exit pass, and complied with government requirements for
departing seafarers. Calvo, Philimare’s liaison officer tasked to assist Chiong at the airport, corroborated Chiong’s testimony on the latter’s
presence at the MIA and his check-in at the PCG counter without a hitch. Calvo further testified that she purposely stayed at the PCG
counter to confirm that Chiong was able to board the plane, as it was part of her duties as Philimare’s liaison officer, to confirm with their
principal, TransOcean in this case, that the seafarer had left the country and commenced travel to the designated port where the vessel
is docked.21 Thus, she had observed that Chiong was unable to check-in and board Northwest Flight No. 24, and was actually being
given the run-around by Northwest personnel.

It is of no moment that Chiong’s witnesses – who all corroborated his testimony on his presence at the airport on, and flight details for,
April 1, 1989, and that he was subsequently bumped-off – are, likewise, employees of Philimare which may have an interest in the
outcome of this case. We intoned in Philippine Airlines, Inc. v. Court of Appeals,22 thus:

(T)his Court has repeatedly held that a witness’ relationship to the victim does not automatically affect the veracity of his
or her testimony. While this principle is often applied in criminal cases, we deem that the same principle may apply in this case,
albeit civil in nature. If a witness’ relationship with a party does not ipso facto render him a biased witness in criminal cases
where the quantum of evidence required is proof beyond reasonable doubt, there is no reason why the same principle
should not apply in civil cases where the quantum of evidence is only preponderance of evidence.

The foregoing documentary and testimonial evidence, taken together, amply establish the fact that Chiong was present at MIA on April
1, 1989, passed through the PCG counter without delay, proceeded to the Northwest check-in counter, but when he presented his
confirmed ticket thereat, he was not issued a boarding pass, and ultimately barred from boarding Northwest Flight No. 24 on that day.

In stark contrast is Northwest’s bare-faced claim that Chiong was a "no-show" passenger, and was scheduled to leave the country only
on April 17, 1989. As previously discussed, the records belie this assertion. It is also noteworthy that Northwest did not present any
evidence to support its belated defense that Chiong departed from the Philippines on April 17, 1989 to work as Third Engineer on
board M/V Elbia under the original crew agreement.

It is true that Chiong’s passport and seaman service record book indicate that he had left the country on April 17, 1989 and come back
on October 5 of the same year. However, this evidence fails to debunk the facts established to have transpired on April 1, 1989, more
particularly, Chiong’s presence at the airport and his subsequent bumping-off by Northwest despite a confirmed ticket. Although initially,
the burden of proof was with Chiong to prove that there was a breach of contract of carriage, the burden of evidence shifted to Northwest
when Chiong adduced sufficient evidence to prove the facts he had alleged. At that point, Northwest had the burden of going forward 23 to
controvert Chiong’s prima facie case. As the party asserting that Chiong was a "no-show" passenger, Northwest then had the burden of
evidence to establish its claim. Regrettably, Northwest failed to do so.

Furthermore, it has not escaped our attention that Northwest, despite the declaration in its Pre-Trial Brief, did not present as a witness
their check-in agent on that contentious date.24 This omission was detrimental to Northwest’s case considering its claim that Chiong did
not check-in at their counters on said date. It simply insisted that Chiong was a "no-show" passenger and totally relied on the Flight
Manifest, which, curiously, showed a horizontal line drawn across Chiong’s name, and the name W. Costine written above it. The reason
for the insertion, or for Chiong’s allegedly being a "no-show" passenger, is not even recorded on the remarks column of the Flight Manifest
beside the Passenger Name column. Clearly, the categorical declaration of Chiong and his other witnesses, coupled with the PCG stamp
on his passport and seaman service record book, prevails over Northwest’s evidence, particularly the Flight Manifest. Thus, we are
perplexed why, despite the evidence presented by Chiong, and the RTC’s specific order to Northwest’s counsel to present the person(s)
who prepared the Flight Manifest and Passenger Name Record for a proper identification of, and to testify on, those documents, Northwest
still insisted on presenting Gonofredo Mendoza and Amelia Meris who were, admittedly, not competent to testify thereon.25

In its desperate attempt to evade liability for the breach, Northwest claims that Chiong worked at M/V Elbia when he left the Philippines
on April 17, 1989. The argument was not only belatedly raised, as we have repeatedly stated, but is off-tangent.

On this point, we uphold the RTC’s and CA’s ruling that the failure of Northwest to raise the foregoing defense in its Motion to Dismiss or
Answer constituted a waiver thereof. Section 1, Rule 9 of the Rules of Court provides:

SECTION 1. Defenses and objections not pleaded.— Defenses and objections not pleaded either in a motion to dismiss or
in the answer are deemed waived. However, when it appears from the pleadings or the evidence on record that the court has no
jurisdiction over the subject matter, that there is another action pending between the same parties for the same cause, or that the
action is barred by a prior judgment or by statute of limitations, the court shall dismiss the claim. (Emphasis supplied)

Similarly, Section 8, Rule 15 of the Rules of Court reads:

SECTION 8. Omnibus Motion.— Subject to the provisions of section 1 of Rule 9, a motion attacking a pleading, order, judgment,
or proceeding shall include all objections then available, and all objections not so included shall be deemed waived.

Moreover, Northwest paints a scenario that ostensibly transpired on a different date. Even if Chiong left the Philippines on April 17, 1989,
it would not necessarily prove that Chiong was a "no-show" on April 1, 1989. Neither does it negate the already established fact that
Chiong had a confirmed ticket for April 1, 1989, and first passed through the PCG counter without delay, then reached and was at the
Northwest check-in counters on time for the scheduled flight.

Essentially, Northwest argues that Chiong was a "no-show" passenger on two (2) separate occasions, March 28 and April 1, 1989
because he was actually scheduled to depart for the US on April 17, 1989 as ostensibly evidenced by his passport and seaman record
book. Had this new matter alleged been proven by Northwest, it would prevent or bar recovery by Chiong. Unfortunately, Northwest was
unsuccessful in proving not only the "no-show" claim, but that Chiong, likewise, worked under the original crew agreement.

Northwest likewise insists – now that there is a pending criminal case for False Testimony against Chiong – that a falsified part of Chiong’s
testimony would indicate the falsity of his entire testimony, consistent with the "falsus in uno, falsus in omnibus"26 doctrine. Following
Northwest’s flawed logic, this would invariably lead to the conclusion that the corroborating testimonies of Chiong’s witnesses are also
false.

The legal maxim falsus in uno, falsus in omnibus, cited by Northwest, is not a positive rule of law and is not strictly applied in this
jurisdiction. Before this maxim can be applied, the witness must be shown to have willfully falsified the truth on one or more material
points. The principle presupposes the existence of a positive testimony on a material point contrary to subsequent declarations in the
testimony. However, the records show that Chiong’s testimony did not contain inconsistencies on what occurred on April 1, 1989. Yet,
Northwest never even attempted to explain or impugn the evidence that Chiong passed through the PCG counter on April 1, 1989, and
that his passport was accordingly stamped, obviously for purposes of his departure on that day.

As to the criminal case, it is well to note that there is no final determination, as yet, of Chiong’s guilt by the courts. But even if Chiong is
adjudged guilty, it will have little effect on the outcome of this case. As we held in Leyson v. Lawa:27

The testimony of a witness must be considered in its entirety instead of in truncated parts. The technique in deciphering a testimony
is not to consider only its isolated parts and anchor a conclusion on the basis of said parts. In ascertaining the facts established
by a witness, everything stated by him on direct, cross and redirect examinations must be calibrated and considered.

It must be stressed that facts imperfectly or erroneously stated in answer to one question may be supplied or explained as qualified
by his answer to other question. The principle falsus in uno, falsus in omnibus is not strictly applied in this jurisdiction. The doctrine
deals only with the weight of evidence and is not a positive rule of law, and the same is not an inflexible one of universal application.
The testimony of a witness can be believed as to some facts and disbelieved as to others:

xxxx

Professor Wigmore gives the following enlightening commentary:

It may be said, once for all, that the maxim is in itself worthless— first, in point of validity, because in one form it merely
contains in loose fashion a kernel of truth which no one needs to be told, and in the others, it is absolutely false as a maxim
of life; and secondly, in point of utility, because it merely tells the jury what they may do in any event, not what they must do
or must not do, and therefore it is a superfluous form of words. It is also in practice pernicious, first, because there is
frequently a misunderstanding of its proper force, and secondly, because it has become in the hands of many counsel a
mere instrument for obtaining new trials upon points wholly unimportant in themselves.

From the foregoing disquisition, the ineluctable conclusion is that Northwest breached its contract of carriage with Chiong.

Time and again, we have declared that a contract of carriage, in this case, air transport, is primarily intended to serve the traveling public
and thus, imbued with public interest. The law governing common carriers consequently imposes an exacting standard of conduct. As
the aggrieved party, Chiong only had to prove the existence of the contract and the fact of its non-performance by Northwest, as carrier,
in order to be awarded compensatory and actual damages.

We reiterate that Northwest failed to prove its claim that Chiong worked on M/V Elbia from April 17 to October 5, 1989 under the original
crew agreement. Accordingly, we affirm the lower court’s finding on Chiong’s entitlement to actual and compensatory damages.
We, likewise, uphold the findings of both courts on Northwest’s liability for moral and exemplary damages, and attorney’s fees.

Under Article 2220 of the Civil Code of the Philippines, an award of moral damages, in breaches of contract, is in order upon a showing
that the defendant acted fraudulently or in bad faith. Bad faith does not simply connote bad judgment or negligence.28 It imports a
dishonest purpose or some moral obliquity and conscious doing of a wrong. 29 It means breach of a known duty through some motive,
interest or ill will that partakes of the nature of fraud.30 Bad faith is in essence a question of intention.31

In the case at bench, the courts carefully examined the evidence as to the conduct and outward acts of Northwest indicative of its inward
motive. It is borne out by the records that Chiong was given the run-around at the Northwest check-in counter, instructed to deal with a
"man in barong" to obtain a boarding pass, and eventually barred from boarding Northwest Flight No. 24 to accommodate an American,
W. Costine, whose name was merely inserted in the Flight Manifest, and did not even personally check-in at the counter.32

Under the foregoing circumstances, the award of exemplary damages is also correct given the evidence that Northwest acted in an
oppressive manner towards Chiong.33

As for the award of attorney’s fees, while we recognize that it is sound policy not to set a premium on the right to litigate,34 we sustain the
lower courts’ award thereof.

Attorney’s fees may be awarded when a party is compelled to litigate or incur expenses to protect his interest, 35 or where the defendant
acted in gross and evident bad faith in refusing to satisfy the plaintiff’s plainly valid, just and demandable claim. 36 In the case at bench,
Northwest deliberately breached its contract of carriage with Chiong and then repeatedly refused to satisfy Chiong’s valid, just and
demandable claim. This unjustified refusal constrained Chiong to not only lose income under the crew agreement, but to further incur
expenses and exert effort for almost two (2) decades in order to protect his interests and vindicate his right. Therefore, this Court deems
it just and equitable to grant Chiong P200,000.00 as attorney’s fees. The award is reasonable in view of the time it has taken for this case
to be resolved.37

Finally, the issue of the exclusion of Northwest’s Exhibits "2" and "3" need not detain us long. Suffice it to state that the RTC and CA
correctly excluded these documents as hearsay evidence. We quote with favor the CA’s holding thereon, thus:

As a rule, "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 a duty and in the ordinary or regular course of business or duty". [Rule 130, Section
43, Revised Rules of Court]

Otherwise stated, in order to be admissible as entries in the course of business, it is necessary that: (a) the person who made the
entry must be dead or unable to testify; (b) the entries were made at or near the time of the transactions to which they refer; (c)
the entrant was in a position to know the facts stated in the entries; (d) the entries were made in his professional capacity or in the
performance of a duty; and (e) the entries were made in the ordinary or regular course of business or duty.
 Tested by these requirements, we find the manifest and passenger name record to be mere hearsay evidence. While there is no
necessity to bring into court all the employees who individually made the entries, it is sufficient that the person who supervised
them while they were making the entries testify that the account was prepared under his supervision and that the entries were
regularly entered in the ordinary course of business. In the case at bench, while MENDOZA was the supervisor on-duty on
April 1, 1989, he has no personal knowledge of the entries in the manifest since he did not supervise the preparation
thereof. More importantly, no evidence was presented to prove that the employee who made the entries was dead nor did
the defendant-appellant set forth the circumstances that would show the employee’s inability to testify.38

WHEREFORE, premises considered, the petition is hereby DENIED. The ruling of the Court of Appeals in CA-G.R. CV No. 50308 is
hereby AFFIRMED. Costs against the petitioner.

SO ORDERED.
G.R. No. L-12986 March 31, 1966

THE SPOUSES BERNABE AFRICA and SOLEDAD C. AFRICA, and the HEIRS OF DOMINGA ONG, petitioners-appellants,
vs.
CALTEX (PHIL.), INC., MATEO BOQUIREN and THE COURT OF APPEALS, respondents-appellees.

Ross, Selph, Carrascoso and Janda for the respondents.

Bernabe Africa, etc. for the petitioners.

MAKALINTAL., J.:

This case is before us on a petition for review of the decision of the Court of Appeals, which affirmed that of the Court of First Instance of
Manila dismissing petitioners' second amended complaint against respondents.

The action is for damages under Articles 1902 and 1903 of the old Civil Code. It appears that in the afternoon of March 18, 1948 a fire
broke out at the Caltex service station at the corner of Antipolo street and Rizal Avenue, Manila. It started while gasoline was being hosed
from a tank truck into the underground storage, right at the opening of the receiving tank where the nozzle of the hose was inserted. The
fire spread to and burned several neighboring houses, including the personal properties and effects inside them. Their owners, among
them petitioners here, sued respondents Caltex (Phil.), Inc. and Mateo Boquiren, the first as alleged owner of the station and the second
as its agent in charge of operation. Negligence on the part of both of them was attributed as the cause of the fire.

The trial court and the Court of Appeals found that petitioners failed to prove negligence and that respondents had exercised due care in
the premises and with respect to the supervision of their employees.

The first question before Us refers to the admissibility of certain reports on the fire prepared by the Manila Police and Fire Departments
and by a certain Captain Tinio of the Armed Forces of the Philippines. Portions of the first two reports are as follows:

1. Police Department report: —

Investigation disclosed that at about 4:00 P.M. March 18, 1948, while Leandro Flores was transferring gasoline from a tank
truck, plate No. T-5292 into the underground tank of the Caltex Gasoline Station located at the corner of Rizal Avenue and
Antipolo Street, this City, an unknown Filipino lighted a cigarette and threw the burning match stick near the main valve of
the said underground tank. Due to the gasoline fumes, fire suddenly blazed. Quick action of Leandro Flores in pulling off
the gasoline hose connecting the truck with the underground tank prevented a terrific explosion. However, the flames
scattered due to the hose from which the gasoline was spouting. It burned the truck and the following accessorias and
residences.

2. The Fire Department report: —

 In connection with their allegation that the premises was (sic) subleased for the installation of a coca-cola and cigarette stand, the
complainants furnished this Office a copy of a photograph taken during the fire and which is submitted herewith. it appears in this
picture that there are in the premises a coca-cola cooler and a rack which according to information gathered in the neighborhood
contained cigarettes and matches, installed between the gasoline pumps and the underground tanks.

The report of Captain Tinio reproduced information given by a certain Benito Morales regarding the history of the gasoline station and
what the chief of the fire department had told him on the same subject.

The foregoing reports were ruled out as "double hearsay" by the Court of Appeals and hence inadmissible. This ruling is now assigned
as error. It is contended: first, that said reports were admitted by the trial court without objection on the part of respondents; secondly,
that with respect to the police report (Exhibit V-Africa) which appears signed by a Detective Zapanta allegedly "for Salvador Capacillo,"
the latter was presented as witness but respondents waived their right to cross-examine him although they had the opportunity to do so;
and thirdly, that in any event the said reports are admissible as an exception to the hearsay rule under section 35 of Rule 123, now Rule
130.

The first contention is not borne out by the record. The transcript of the hearing of September 17, 1953 (pp. 167-170) shows that the
reports in question, when offered as evidence, were objected to by counsel for each of respondents on the ground that they were hearsay
and that they were "irrelevant, immaterial and impertinent." Indeed, in the court's resolution only Exhibits J, K, K-5 and X-6 were
admitted without objection; the admission of the others, including the disputed ones, carried no such explanation.

On the second point, although Detective Capacillo did take the witness stand, he was not examined and he did not testify as to the facts
mentioned in his alleged report (signed by Detective Zapanta). All he said was that he was one of those who investigated "the location of
the fire and, if possible, gather witnesses as to the occurrence, and that he brought the report with him. There was nothing, therefore, on
which he need be cross-examined; and the contents of the report, as to which he did not testify, did not thereby become competent
evidence. And even if he had testified, his testimony would still have been objectionable as far as information gathered by him from third
persons was concerned.

Petitioners maintain, however, that the reports in themselves, that is, without further testimonial evidence on their contents, fall within the
scope of section 35, Rule 123, which provides that "entries in official records made in the performance of his duty by a public officer of
the Philippines, or by a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated."

There are three requisites for admissibility under the rule just mentioned: (a) that the entry was made by a public officer, or by another
person specially enjoined by law to do so; (b) that it was made by the public officer in the performance of his duties, or by such other
person in the performance of a duty specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of
the facts by him stated, which must have been acquired by him personally or through official information (Moran, Comments on the Rules
of Court, Vol. 3 [1957] p. 398).

Of the three requisites just stated, only the last need be considered here. Obviously the material facts recited in the reports as to the
cause and circumstances of the fire were not within the personal knowledge of the officers who conducted the investigation. Was
knowledge of such facts, however, acquired by them through official information? As to some facts the sources thereof are not even
identified. Others are attributed to Leopoldo Medina, referred to as an employee at the gas station were the fire occurred; to Leandro
Flores, driver of the tank truck from which gasoline was being transferred at the time to the underground tank of the station; and to
respondent Mateo Boquiren, who could not, according to Exhibit V-Africa, give any reason as to the origin of the fire. To qualify their
statements as "official information" acquired by the officers who prepared the reports, the persons who made the statements not only
must have personal knowledge of the facts stated but must have the duty to give such statements for record.1

The reports in question do not constitute an exception to the hearsay rule; the facts stated therein were not acquired by the reporting
officers through official information, not having been given by the informants pursuant to any duty to do so.

The next question is whether or not, without proof as to the cause and origin of the fire, the doctrine of res ipsa loquitur should apply so
as to presume negligence on the part of appellees. Both the trial court and the appellate court refused to apply the doctrine in the instant
case on the grounds that "as to (its) applicability ... in the Philippines, there seems to he nothing definite," and that while the rules do not
prohibit its adoption in appropriate cases, "in the case at bar, however, we find no practical use for such doctrine." The question deserves
more than such summary dismissal. The doctrine has actually been applied in this jurisdiction, in the case of Espiritu vs. Philippine Power
and Development Co. (CA-G.R. No. 3240-R, September 20, 1949), wherein the decision of the Court of Appeals was penned by Mr.
Justice J.B.L. Reyes now a member of the Supreme Court.

The facts of that case are stated in the decision as follows:

In the afternoon of May 5, 1946, while the plaintiff-appellee and other companions were loading grass between the municipalities
of Bay and Calauan, in the province of Laguna, with clear weather and without any wind blowing, an electric transmission wire,
installed and maintained by the defendant Philippine Power and Development Co., Inc. alongside the road, suddenly parted, and
one of the broken ends hit the head of the plaintiff as he was about to board the truck. As a result, plaintiff received the full shock
of 4,400 volts carried by the wire and was knocked unconscious to the ground. The electric charge coursed through his body and
caused extensive and serious multiple burns from skull to legs, leaving the bone exposed in some parts and causing intense pain
and wounds that were not completely healed when the case was tried on June 18, 1947, over one year after the mishap.

The defendant therein disclaimed liability on the ground that the plaintiff had failed to show any specific act of negligence, but the appellate
court overruled the defense under the doctrine of res ipsa loquitur. The court said:

The first point is directed against the sufficiency of plaintiff's evidence to place appellant on its defense. While it is the rule, as
contended by the appellant, that in case of noncontractual negligence, or culpa aquiliana, the burden of proof is on the plaintiff to
establish that the proximate cause of his injury was the negligence of the defendant, it is also a recognized principal that "where
the thing which caused injury, without fault of the injured person, is under the exclusive control of the defendant and the injury is
such as in the ordinary course of things does not occur if he having such control use proper care, it affords reasonable evidence,
in the absence of the explanation, that the injury arose from defendant's want of care."
 And the burden of evidence is shifted to him to establish that he has observed due care and diligence. (San Juan Light & Transit
Co. v. Requena, 244, U.S. 89, 56 L. ed. 680.) This rule is known by the name of res ipsa loquitur (the transaction speaks for itself),
and is peculiarly applicable to the case at bar, where it is unquestioned that the plaintiff had every right to be on the highway, and
the electric wire was under the sole control of defendant company. In the ordinary course of events, electric wires do not part
suddenly in fair weather and injure people, unless they are subjected to unusual strain and stress or there are defects in their
installation, maintenance and supervision; just as barrels do not ordinarily roll out of the warehouse windows to injure passersby,
unless some one was negligent. (Byrne v. Boadle, 2 H & Co. 722; 159 Eng. Reprint 299, the leading case that established that
rule). Consequently, in the absence of contributory negligence (which is admittedly not present), the fact that the wire snapped
suffices to raise a reasonable presumption of negligence in its installation, care and maintenance. Thereafter, as observed by
Chief Baron Pollock, "if there are any facts inconsistent with negligence, it is for the defendant to prove."

It is true of course that decisions of the Court of Appeals do not lay down doctrines binding on the Supreme Court, but we do not consider
this a reason for not applying the particular doctrine of res ipsa loquitur in the case at bar. Gasoline is a highly combustible material, in
the storage and sale of which extreme care must be taken. On the other hand, fire is not considered a fortuitous event, as it arises almost
invariably from some act of man. A case strikingly similar to the one before Us is Jones vs. Shell Petroleum Corporation, et al., 171 So.
447:

Arthur O. Jones is the owner of a building in the city of Hammon which in the year 1934 was leased to the Shell Petroleum
Corporation for a gasoline filling station. On October 8, 1934, during the term of the lease, while gasoline was being transferred
from the tank wagon, also operated by the Shell Petroleum Corporation, to the underground tank of the station, a fire started with
resulting damages to the building owned by Jones. Alleging that the damages to his building amounted to $516.95, Jones sued
the Shell Petroleum Corporation for the recovery of that amount. The judge of the district court, after hearing the testimony,
concluded that plaintiff was entitled to a recovery and rendered judgment in his favor for $427.82. The Court of Appeals for the
First Circuit reversed this judgment, on the ground the testimony failed to show with reasonable certainty any negligence on the
part of the Shell Petroleum Corporation or any of its agents or employees. Plaintiff applied to this Court for a Writ of Review which
was granted, and the case is now before us for decision.1äwphï1.ñët

In resolving the issue of negligence, the Supreme Court of Louisiana held:

Plaintiff's petition contains two distinct charges of negligence — one relating to the cause of the fire and the other relating to the
spreading of the gasoline about the filling station.

Other than an expert to assess the damages caused plaintiff's building by the fire, no witnesses were placed on the stand by the
defendant.

Taking up plaintiff's charge of negligence relating to the cause of the fire, we find it established by the record that the filling station
and the tank truck were under the control of the defendant and operated by its agents or employees. We further find from the
uncontradicted testimony of plaintiff's witnesses that fire started in the underground tank attached to the filling station while it was
being filled from the tank truck and while both the tank and the truck were in charge of and being operated by the agents or
 employees of the defendant, extended to the hose and tank truck, and was communicated from the burning hose, tank truck, and
escaping gasoline to the building owned by the plaintiff.

Predicated on these circumstances and the further circumstance of defendant's failure to explain the cause of the fire or to show
its lack of knowledge of the cause, plaintiff has evoked the doctrine of res ipsa loquitur. There are many cases in which the doctrine
may be successfully invoked and this, we think, is one of them.

Where the thing which caused the injury complained of is shown to be under the management of defendant or his servants and
the accident is such as in the ordinary course of things does not happen if those who have its management or control use proper
care, it affords reasonable evidence, in absence of explanation by defendant, that the accident arose from want of care. (45 C.J.
#768, p. 1193).

This statement of the rule of res ipsa loquitur has been widely approved and adopted by the courts of last resort. Some of the
cases in this jurisdiction in which the doctrine has been applied are the following, viz.: Maus v. Broderick, 51 La. Ann. 1153, 25 So.
977; Hebert v. Lake Charles Ice, etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Willis v. Vicksburg, etc.,
R. Co., 115 La. 63, 38 So. 892; Bents v. Page, 115 La. 560, 39 So. 599.

The principle enunciated in the aforequoted case applies with equal force here. The gasoline station, with all its appliances, equipment
and employees, was under the control of appellees. A fire occurred therein and spread to and burned the neighboring houses. The
persons who knew or could have known how the fire started were appellees and their employees, but they gave no explanation thereof
whatsoever. It is a fair and reasonable inference that the incident happened because of want of care.

In the report submitted by Captain Leoncio Mariano of the Manila Police Department (Exh. X-1 Africa) the following appears:

Investigation of the basic complaint disclosed that the Caltex Gasoline Station complained of occupies a lot approximately 10 m x
10 m at the southwest corner of Rizal Avenue and Antipolo. The location is within a very busy business district near the Obrero
Market, a railroad crossing and very thickly populated neighborhood where a great number of people mill around t

until

gasoline

tever be theWactjvities of these peopleor lighting a cigarette cannot be excluded and this constitute a secondary hazard to its
operation which in turn endangers the entire neighborhood to conflagration.

Furthermore, aside from precautions already taken by its operator the concrete walls south and west adjoining the neighborhood
are only 2-1/2 meters high at most and cannot avoid the flames from leaping over it in case of fire.
 Records show that there have been two cases of fire which caused not only material damages but desperation and also panic in
the neighborhood.

Although the soft drinks stand had been eliminated, this gasoline service station is also used by its operator as a garage and repair
shop for his fleet of taxicabs numbering ten or more, adding another risk to the possible outbreak of fire at this already small but
crowded gasoline station.

The foregoing report, having been submitted by a police officer in the performance of his duties on the basis of his own personal
observation of the facts reported, may properly be considered as an exception to the hearsay rule. These facts, descriptive of the location
and objective circumstances surrounding the operation of the gasoline station in question, strengthen the presumption of negligence
under the doctrine of res ipsa loquitur, since on their face they called for more stringent measures of caution than those which would
satisfy the standard of due diligence under ordinary circumstances. There is no more eloquent demonstration of this than the statement
of Leandro Flores before the police investigator. Flores was the driver of the gasoline tank wagon who, alone and without assistance,
was transferring the contents thereof into the underground storage when the fire broke out. He said: "Before loading the underground
tank there were no people, but while the loading was going on, there were people who went to drink coca-cola (at the coca-cola stand)
which is about a meter from the hole leading to the underground tank." He added that when the tank was almost filled he went to the tank
truck to close the valve, and while he had his back turned to the "manhole" he, heard someone shout "fire."

Even then the fire possibly would not have spread to the neighboring houses were it not for another negligent omission on the part of
defendants, namely, their failure to provide a concrete wall high enough to prevent the flames from leaping over it. As it was the concrete
wall was only 2-1/2 meters high, and beyond that height it consisted merely of galvanized iron sheets, which would predictably crumple
and melt when subjected to intense heat. Defendants' negligence, therefore, was not only with respect to the cause of the fire but also
with respect to the spread thereof to the neighboring houses.

There is an admission on the part of Boquiren in his amended answer to the second amended complaint that "the fire was caused through
the acts of a stranger who, without authority, or permission of answering defendant, passed through the gasoline station and negligently
threw a lighted match in the premises." No evidence on this point was adduced, but assuming the allegation to be true — certainly any
unfavorable inference from the admission may be taken against Boquiren — it does not extenuate his negligence. A decision of the
Supreme Court of Texas, upon facts analogous to those of the present case, states the rule which we find acceptable here. "It is the rule
that those who distribute a dangerous article or agent, owe a degree of protection to the public proportionate to and commensurate with
a danger involved ... we think it is the generally accepted rule as applied to torts that 'if the effects of the actor's negligent conduct actively
and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects
of a third person's innocent, tortious or criminal act is also a substantial factor in bringing about the harm, does not protect the actor from
liability.' (Restatement of the Law of Torts, vol. 2, p. 1184, #439). Stated in another way, "The intention of an unforeseen and unexpected
cause, is not sufficient to relieve a wrongdoer from consequences of negligence, if such negligence directly and proximately cooperates
with the independent cause in the resulting injury." (MacAfee, et al. vs. Traver's Gas Corporation, 153 S.W. 2nd 442.)

The next issue is whether Caltex should be held liable for the damages caused to appellants. This issue depends on whether Boquiren
was an independent contractor, as held by the Court of Appeals, or an agent of Caltex. This question, in the light of the facts not
controverted, is one of law and hence may be passed upon by this Court. These facts are: (1) Boquiren made an admission that he was
an agent of Caltex; (2) at the time of the fire Caltex owned the gasoline station and all the equipment therein; (3) Caltex exercised control
over Boquiren in the management of the state; (4) the delivery truck used in delivering gasoline to the station had the name of CALTEX
painted on it; and (5) the license to store gasoline at the station was in the name of Caltex, which paid the license fees. (Exhibit T-Africa;
Exhibit U-Africa; Exhibit X-5 Africa; Exhibit X-6 Africa; Exhibit Y-Africa).

In Boquiren's amended answer to the second amended complaint, he denied that he directed one of his drivers to remove gasoline from
the truck into the tank and alleged that the "alleged driver, if one there was, was not in his employ, the driver being an employee of the
Caltex (Phil.) Inc. and/or the owners of the gasoline station." It is true that Boquiren later on amended his answer, and that among the
changes was one to the effect that he was not acting as agent of Caltex. But then again, in his motion to dismiss appellants' second
amended complaint the ground alleged was that it stated no cause of action since under the allegations thereof he was merely acting as
agent of Caltex, such that he could not have incurred personal liability. A motion to dismiss on this ground is deemed to be an admission
of the facts alleged in the complaint.

Caltex admits that it owned the gasoline station as well as the equipment therein, but claims that the business conducted at the service
station in question was owned and operated by Boquiren. But Caltex did not present any contract with Boquiren that would reveal the
nature of their relationship at the time of the fire. There must have been one in existence at that time. Instead, what was presented was
a license agreement manifestly tailored for purposes of this case, since it was entered into shortly before the expiration of the one-year
period it was intended to operate. This so-called license agreement (Exhibit 5-Caltex) was executed on November 29, 1948, but made
effective as of January 1, 1948 so as to cover the date of the fire, namely, March 18, 1948. This retroactivity provision is quite significant,
and gives rise to the conclusion that it was designed precisely to free Caltex from any responsibility with respect to the fire, as shown by
the clause that Caltex "shall not be liable for any injury to person or property while in the property herein licensed, it being understood
and agreed that LICENSEE (Boquiren) is not an employee, representative or agent of LICENSOR (Caltex)."

But even if the license agreement were to govern, Boquiren can hardly be considered an independent contractor. Under that agreement
Boquiren would pay Caltex the purely nominal sum of P1.00 for the use of the premises and all the equipment therein. He could sell only
Caltex Products. Maintenance of the station and its equipment was subject to the approval, in other words control, of Caltex. Boquiren
could not assign or transfer his rights as licensee without the consent of Caltex. The license agreement was supposed to be from January
1, 1948 to December 31, 1948, and thereafter until terminated by Caltex upon two days prior written notice. Caltex could at any time
cancel and terminate the agreement in case Boquiren ceased to sell Caltex products, or did not conduct the business with due diligence,
in the judgment of Caltex. Termination of the contract was therefore a right granted only to Caltex but not to Boquiren. These provisions
of the contract show the extent of the control of Caltex over Boquiren. The control was such that the latter was virtually an employee of
the former.

Taking into consideration the fact that the operator owed his position to the company and the latter could remove him or terminate
his services at will; that the service station belonged to the company and bore its tradename and the operator sold only the products
of the company; that the equipment used by the operator belonged to the company and were just loaned to the operator and the
company took charge of their repair and maintenance; that an employee of the company supervised the operator and conducted
periodic inspection of the company's gasoline and service station; that the price of the products sold by the operator was fixed by
 the company and not by the operator; and that the receipts signed by the operator indicated that he was a mere agent, the finding
of the Court of Appeals that the operator was an agent of the company and not an independent contractor should not be disturbed.

To determine the nature of a contract courts do not have or are not bound to rely upon the name or title given it by the contracting
parties, should thereby a controversy as to what they really had intended to enter into, but the way the contracting parties do or
perform their respective obligations stipulated or agreed upon may be shown and inquired into, and should such performance
conflict with the name or title given the contract by the parties, the former must prevail over the latter. (Shell Company of the
Philippines, Ltd. vs. Firemens' Insurance Company of Newark, New Jersey, 100 Phil. 757).

The written contract was apparently drawn for the purpose of creating the apparent relationship of employer and independent
contractor, and of avoiding liability for the negligence of the employees about the station; but the company was not satisfied to
allow such relationship to exist. The evidence shows that it immediately assumed control, and proceeded to direct the method by
which the work contracted for should be performed. By reserving the right to terminate the contract at will, it retained the means of
compelling submission to its orders. Having elected to assume control and to direct the means and methods by which the work
has to be performed, it must be held liable for the negligence of those performing service under its direction. We think the evidence
was sufficient to sustain the verdict of the jury. (Gulf Refining Company v. Rogers, 57 S.W. 2d, 183).

Caltex further argues that the gasoline stored in the station belonged to Boquiren. But no cash invoices were presented to show that
Boquiren had bought said gasoline from Caltex. Neither was there a sales contract to prove the same.

As found by the trial court the Africas sustained a loss of P9,005.80, after deducting the amount of P2,000.00 collected by them on the
insurance of the house. The deduction is now challenged as erroneous on the ground that Article 2207 of the New Civil Code, which
provides for the subrogation of the insurer to the rights of the insured, was not yet in effect when the loss took place. However, regardless
of the silence of the law on this point at that time, the amount that should be recovered be measured by the damages actually suffered,
otherwise the principle prohibiting unjust enrichment would be violated. With respect to the claim of the heirs of Ong P7,500.00 was
adjudged by the lower court on the basis of the assessed value of the property destroyed, namely, P1,500.00, disregarding the testimony
of one of the Ong children that said property was worth P4,000.00. We agree that the court erred, since it is of common knowledge that
the assessment for taxation purposes is not an accurate gauge of fair market value, and in this case should not prevail over positive
evidence of such value. The heirs of Ong are therefore entitled to P10,000.00.

Wherefore, the decision appealed from is reversed and respondents-appellees are held liable solidarily to appellants, and ordered to pay
them the aforesaid sum of P9,005.80 and P10,000.00, respectively, with interest from the filing of the complaint, and costs.

Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Regala, Bengzon, J.P., Zaldivar and Sanchez, JJ., concur.
Dizon, J., took no part.
G.R. No. 105958 November 20, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROMEO LEDESMA ALIAS "JUAN LEDESMA", accused-appellant.

BELLOSILLO, J.:

Loreto Patricio Jr. was shot dead in the evening of 7 August 1984 at Barangay Dayhagan, Pilar, Capiz. For this death Romeo
Ledesma alias Juan Ledesma, his brother-in-law Fernando Bernal and a John Doe were charged with murder. However, as may be
explained immediately hereunder, only accused Ledesma was tried and thereafter sentenced to reclusion perpetua and to indemnify the
heirs in the amount of P50,000.00.1

Romeo Ledesma pleaded not guilty upon arraignment. Fernando Bernal who was bonded did not appear. The third accused remained
a John Doe as he was never identified. Fernando died pending trial.2

As culled from the evidence, on 7 August 1984, at around seven-thirty in the evening, while Loreto Patricio Sr. and his family were resting
from a day's work and listening to the radio their dogs suddenly barked. Responding to the perturbing noise outside, Loreto Patricio Jr.
went down the house followed by his father Loreto Patricio Sr. and brother Edilberto Patricio, whose house was just ten (10) meters away.
They proceeded to the torel3 each with a sandoko4 tucked to his waist. On their way they saw Fernando Bernal and Romeo Ledesma,
whom they had known for nineteen (19) years, prowling in the premises. A little farther they noticed a man pulling their carabao by the
rope. Romeo Ledesma and Fernando Bernal were each armed with a pugakhang.5 As the Patricios drew near, Fernando Bernal fired.
No one was hit. After some three (3) seconds Romeo Ledesma also fired, this time hitting Loreto Jr. which caused the latter to stagger
and fall. All three (3) accused then fled leaving the carabao behind. Loreto Sr. and Edilberto pursued them but failed.6

Loreto Patricio Jr. died in the emergency room of the Capiz Emmanuel Hospital. His cadaver was autopsied by Dr. Florentino Bermejo
who reported the cause of death as severe hemorrhage due to gunshot wounds. 7

The killing was reported the following day by the Patricios to the municipal authorities. Fernando Bernal was arrested on 14 August 1984
and Romeo Ledesma on 5 December 1984.

Romeo Ledesma invokes alibi for his defense. He claims that in the evening of 7 August 1984 he was at home at Barangay Cawayan,
Carles, Iloilo, about one and one half (1-1/2) kilometers from the house of Loreto Patricio Sr. at Barangay Dayhagan, Pilar, Capiz; he was
with his wife Merlinda and their four (4) children together with two (2) neighbors attending the wake of his son who drowned on 4 August
1984; there were other people outside his house although he did not know them then. He insists that he never left his house that night
until the following day.8
Accused-appellant contends in this appeal that the court a quo erred:
(a) in giving weight to the testimonies of prosecution witnesses Loreto Patricio Sr. and his son Edilberto; (b) in convicting him of murder
despite the fact that his guilt has not been proved beyond reasonable doubt; and, (c) in appreciating the qualifying circumstance of
treachery.

Accused-appellant argues that the testimonies of Loreto Patricio Sr. and Edilberto are highly doubtful, especially as regards their alleged
positive identification of him as the killer, considering that despite the third-quarter moon visibility was obstructed by growing trees.

As did the trial court, we find the argument flawed. While there may have been trees around the crime scene the defense failed to establish
that the area near the torel was so dark as to preclude the identification of the accused. It has been clearly established that appellant and
his cohorts were caught by the Patricios in the act of stealing their carabao. If they had not been recognized, purportedly because they
were able to hide, there would have been no need for them to fire at the Patricios. But appellant and Bernal fired two (2) shots in rapid
succession, the second hitting Loreto Patricio Jr. which caused his death. The act of firing at the Patricios simply confirmed that they were
indeed recognized.

In an attempt to discredit the Patricios, appellant claims that he was not included among the suspects in the police blotter but his son
Romeo Ledesma Jr.9 However, entries in the police blotter are not evidence of the truth of what are stated therein but merely of the fact
that such entries were made. Besides, the police blotter speaks of "suspects" in the slaying of Loreto Patricio Jr. which can in no way
prevail over the positive identification of appellant as the one who fired the fatal shot. Testimony given in open court is commonly more
lengthy and detailed than the brief entries made in the police blotter.10

Appellant likewise refers to certain inconsistencies in the testimonies of the prosecution witnesses which, according to him, cast serious
doubt on their truthfulness and notes the alleged disparities regarding the shape of the moon that fateful night, the time interval between
the two shots, and the distance between him and the Patricios before the shooting started. But such inconsistencies are to be expected
of witnesses testifying on the same incident as different persons may have diverse perceptions or recollections of a particular event. It is
well-settled that as long as the witnesses concur on material points slight deviations in their recollection of details will not detract from the
essential veracity of their assertions. The inconsistencies and contradictions, if any there be, do not necessarily impair credibility; they in
fact enhance it as they erase any suspicion of a perjured or rehearsed testimony.11

Appellant would impress us that during the entire evening of 7 August 1984 he was in his house at Barangay Cawayan, Carles, Iloilo,
with his family and neighbors, and never left the place at all until the following day. However, he failed to convince us that it was impossible
for him to be at the locus criminis at the time of the killing.12The house of the victim at Barangay Dayhagan, Pilar, Capiz, is only one and
a half (1-1/2) kilometers from the adjoining Barangay Cawayan, Carles, Iloilo, where appellant resides. Strangely, only his wife attested
to his alibi which, it has been held, is generally unavailing if it is corroborated merely by immediate relatives and not by disinterested
persons.

In fact he could have easily presented witnesses from among disinterested parties. Anyway, alibi is worthless in the face of positive
identification by the prosecution witnesses.13
But, did not appellant admit on cross-examination that his son was buried on 5 August 1984 or two (2) days before the killing took
place?14 Verily, this should destroy whatever is left of his pretension that on the night of the incident he was at home with his family and
friends attending the wake for his son. All told, we find that the prosecution has convincingly proved its case against appellant and
established beyond reasonable doubt his culpability relative to the death of Loreto Patricio Jr.

Nonetheless, we agree with the appellant that the trial court erred in finding that treachery attended the killing. For treachery to be present,
two (2) conditions must concur: (a) employment of means of execution that would give the person attacked no opportunity to defend
himself much less retaliate, and (b) that said means of execution were deliberately and consciously adopted. 15 In the present case, there
is no question that when the Patricios heard their dogs barking at the direction of the carabao corral they sensed danger. Thus they
brought along their bolos when they went down their house and walked towards the corral. There they saw appellant Romeo Ledesma,
Fernando Bernal and an unidentified man pulling their carabao, each carrying a pugakhang. Seeing the intruders armed must have
forewarned the Patricios that their lives were in grave peril. In other words, they were afforded a chance, albeit fleeting, to retreat or
defend themselves. Hence, it cannot be said with utmost certainty that appellant and his companions deliberately chose treacherous
means to insure the attainment of their objective without risk to themselves. As we view it, the killing of Loreto Jr. was made on the spur
of the moment and only when the accused lost their composure after having been caught in the act of stealing a carabao. Consequently,
as the killing was not attended by any of the aggravating circumstances qualifying it to murder, accused-appellant should only be liable
for homicide.16

The penalty for homicide is reclusion temporal the range of which is twelve (12) years and one (1) day to twenty (20) years. Applying the
Indeterminate Sentence Law, the maximum of the penalty to be imposed shall be taken from the medium period of reclusion temporal,
the range of which is fourteen (14) years eight (8) months and one (1) day to seventeen (17) years and four (4) months, while the minimum
shall be taken from the penalty next lower in degree which is prision mayor, the range of which is six (6) years and one (1) day to twelve
(12) years, in any of its periods.

WHEREFORE, accused-appellant Romeo Ledesma alias Juan Ledesma is found guilty beyond reasonable doubt of the crime of
homicide, instead of murder, and is accordingly sentenced to an indeterminate prison term of eight (8) years four (4) months and ten (10)
days of prision mayor medium, as minimum, to fourteen (14) years eight (8) months and twenty (20) days of reclusion temporal medium,
as maximum. In all other respects, the judgment appealed from is AFFIRMED.

Costs against accused-appellant.

SO ORDERED.

Padilla, Davide, Jr. and Kapunan, JJ., concur.

Separate Opinions
HERMOSISIMA, JR., J., concurring and dissenting:

With all due respect to the majority opinion, while I fully agree that the evidence on record has sufficiently established that accused-
appellant Romeo Ledesma perpetrated the act of killing the victim Patricio, Jr., I am of the view that the killing was attended by the
aggravating circumstance of treachery that should qualify the crime committed from one of homicide to that of murder.

For treachery to be appreciated, it is necessary (1) that, at the time of the attack, the victim was not in a position to defend himself; and
(2) that the offender consciously adopted the particular means, method or form of attack employed by him. 1

It has to be conceded that, as to the first requirement, the established facts of the case show that the victim was defenseless at the time
he was killed. It matters not that the victim had a bolo tucked to his waist. Nowhere in the record does it appear that the victim was actually
able to make use of said bolo during or immediately preceding the attack on him by accused-appellant. The attack was sudden and
unprovoked. The victim was totally unsuspecting of the grave peril to his person. He, his father and brother, had simply gone down the
house to verify as to why the dogs were barking. That they were shot at when so doing only goes to show that the accused had intended
to shoot whoever comes to thwart their act of robbery. The accused immediately opened fire at the victim and the victim's companion,
hitting the victim fatally.

Under these circumstances, it can be validly concluded that the victim and his companions were not afforded a fair chance to effectively
defend themselves. The suddenness of the attack, without the slightest forewarning thereof, placed the victim and his companions in
such a position that they could not have defended themselves from the aggression, taking into consideration the superiority of weapons
of the malefactors and the suddenness of the attack upon the victim who could not have put up a defense even if he wanted to.

The existence of the second requirement, that is, whether the accused-appellant consciously adopted the particular means employed in
killing the victim, is evident from the fact that accused-appellant and his cohorts conveniently provided themselves with home-made guns
and took advantage of nighttime in waylaying the persons who might be minded to stop them from stealing the carabao of the victim. It
could be fairly deduced from the attendant circumstances that, even prior thereto, the accused-appellant and his companions were grimly
determined to insure with impunity the success of their unlawful objective, the very reason why they armed themselves with guns and
purposely sought the night to pursue their evil deeds.

In point of fact, it being obvious that there was conspiracy among the malefactors to commit robbery and the killing of the victim was
perpetrated pursuant to or on the occasion of robbery, the crime committed was robbery with homicide.

IN VIEW OF THE FOREGOING, I VOTE for the affirmance in toto of the decision appealed from.
Separate Opinions

HERMOSISIMA, JR., J., concurring and dissenting:

With all due respect to the majority opinion, while I fully agree that the evidence on record has sufficiently established that accused-
appellant Romeo Ledesma perpetrated the act of killing the victim Patricio, Jr., I am of the view that the killing was attended by the
aggravating circumstance of treachery that should qualify the crime committed from one of homicide to that of murder.

For treachery to be appreciated, it is necessary (1) that, at the time of the attack, the victim was not in a position to defend himself; and
(2) that the offender consciously adopted the particular means, method or form of attack employed by him. 1

It has to be conceded that, as to the first requirement, the established facts of the case show that the victim was defenseless at the time
he was killed. It matters not that the victim had a bolo tucked to his waist. Nowhere in the record does it appear that the victim was actually
able to make use of said bolo during or immediately preceding the attack on him by accused-appellant. The attack was sudden and
unprovoked. The victim was totally unsuspecting of the grave peril to his person. He, his father and brother, had simply gone down the
house to verify as to why the dogs were barking. That they were shot at when so doing only goes to show that the accused had intended
to shoot whoever comes to thwart their act of robbery. The accused immediately opened fire at the victim and the victim's companion,
hitting the victim fatally.

Under these circumstances, it can be validly concluded that the victim and his companions were not afforded a fair chance to effectively
defend themselves. The suddenness of the attack, without the slightest forewarning thereof, placed the victim and his companions in
such a position that they could not have defended themselves from the aggression, taking into consideration the superiority of weapons
of the malefactors and the suddenness of the attack upon the victim who could not have put up a defense even if he wanted to.

The existence of the second requirement, that is, whether the accused-appellant consciously adopted the particular means employed in
killing the victim, is evident from the fact that accused-appellant and his cohorts conveniently provided themselves with home-made guns
and took advantage of nighttime in waylaying the persons who might be minded to stop them from stealing the carabao of the victim. It
could be fairly deduced from the attendant circumstances that, even prior thereto, the accused-appellant and his companions were grimly
determined to insure with impunity the success of their unlawful objective, the very reason why they armed themselves with guns and
purposely sought the night to pursue their evil deeds.

In point of fact, it being obvious that there was conspiracy among the malefactors to commit robbery and the killing of the victim was
perpetrated pursuant to or on the occasion of robbery, the crime committed was robbery with homicide.

IN VIEW OF THE FOREGOING, I VOTE for the affirmance in toto of the decision appealed from.
G.R. No. 107735 February 1, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
RICARDO SAN GABRIEL Y ORTIZ, defendant-appellant.

DECISION

BELLOSILLO, J.:

RICARDO O. SAN GABRIEL was charged with murder in an Information alleging that on 26 November 1989, armed with a bladed
weapon, in conspiracy with "Ramon Doe," with treachery, evident premeditation and intent to kill, he assaulted and stabbed to death
Jaime A. Tonog.1

The trial court convicted the accused as charged and sentenced him "to life imprisonment and to pay the heirs of Jaime Tonog the sum
of P30,000, plus costs."2

The accused is now before us on appeal.

The evidence shows that at around seven o'clock in the evening of 26 November 1989, within the vicinity of Pier 14 at North Harbor along
Marcos Road, Manila, a fistfight ensued between Jaime Tonog on one hand and the accused Ricardo San Gabriel together with "Ramon
Doe" on the other. The fight was eventually broken up when onlookers pacified the protagonists. Ricardo and Ramon then hastened
towards Marcos Road but in no time were back with bladed weapons. They approached Tonog surreptitiously, surrounded him and
simultaneously stabbed him in the stomach and at the back, after which the assailants ran towards the highway leaving Tonog behind on
the ground. He was then brought to Mary Johnston Hospital where he was pronounced dead on arrival.

Dr. Marcial G. Cenido, Medico-Legal Officer of the Western Police District, autopsied the cadaver of the victim and reported that it
sustained two (2) penetrating stab wounds each caused by a single-bladed instrument. He opined that both wounds were fatal.3

The accused has a different version. He testified that he saw Tonog drunk; Tonog even attempted to box him but he parried his blow;
Tonog continued walking but when he chanced upon Ramon he suddenly and without provocation boxed and kicked Ramon; Ramon
fought back but was subdued by his bigger assailant so the former ran towards the highway; when Tonog met a certain "Mando" he boxed
the latter who however fought back despite his (accused) warning not to; at this moment he saw Ramon return with a bolo on hand; he
warned Ramon not to fight but his advice went unheeded; instead, with bolo on hand Ramon struck Tonog on the belly; when "Mando"
saw what happened he ("Mando") pulled out his knife and also stabbed Tonog at the back; Ramon and "Mando" then fled towards the
highway.
The accused further claimed that he even stayed with the victim and called out the latter's companions to bring him to the hospital; that
prosecution witness Brenda Gonzales only arrived at the crime scene after Tonog was already taken to the hospital; that Brenda even
inquired from him what happened and then prodded him to testify; that his refusal coupled with the fact that he owed Gonzales some
money earned him the ire of the latter and that was why he was charged for the death of Tonog.

Accused-appellant claims in this appeal that the trial court erred: (a) in giving credence to the testimonies of prosecution witnesses Brenda
Gonzales and Pio Ochobillo, and for discrediting his; (b) in finding that the killing was attended with evident premeditation; (c) in ruling
that he committed treachery and, (d) in convicting him of murder.4

We sustain the conviction of the accused for murder. It is settled that findings of fact of the trial court are accorded greatest respect by
the appellate court absent any abuse of discretion,5 and none is perceivable in the case at bench; hence we affirm the factual findings of
the trial court.

The accused contends that the testimonies of the prosecution witnesses are incredible and conflicting. We however find otherwise.
Gonzales and Ochobillo, as observed by the trial court, testified in a direct and candid manner. No evil motive is attributed to them as to
testify falsely against the accused. That Gonzales harbored a grudge against the accused because he owed her some money, and even
enticed her customers into patronizing another carinderia, can hardly be believed. We are not convinced that Brenda Gonzales would
testify against accused-appellant for a crime so grave simply because he owed her a measly sum of P300.00. That he enticed the
customers of Gonzales into patronizing another carinderia is belied by the fact that on the night of the incident he was, as he claimed,
eating at the carinderia of Gonzales. If there be any testimony that should be considered incredible and illogical it must be that of the
accused. His assertion that "Mando" stabbed the victim should not receive any evidentiary value when weighed against the positive
assertion of the prosecution witnesses that the accused was the assailant of Jaime Tonog.

Quite interestingly, the accused did not offer any information regarding the person and circumstances of "Mando." Up to this date "Mando"
remains a myth. Not a single witness was presented by the defense to prove who "Mando" was, nor even a hint of his personal
circumstances. During the entire proceedings in the court below "Mando" was never mentioned by the prosecution witnesses. Nobody
ever implicated him except the accused. In fact, there should have been no difficulty procuring witnesses to testify on the part of the
accused as the incident was viewed openly by a multitude of bystanders. His failure to present any witness pointing to "Mando" as the
perpetrator of the crime convinces us that "Mando" in fact existed only as a figment of the mind.

The accused also asserts that Gonzales arrived at the crime scene only after the victim was brought to the hospital and that she even
inquired from him about what happened.

Again we are not persuaded. The statement contradicts the earlier version of the accused that Gonzales was prejudiced against him as
he owed her some money. For, granting that Gonzales had a grudge against him it was not likely that she would inquire from him about
the incident as there were other persons then present who could shed light on the startling occurrence.
Equally dubious is the avowal of the accused that Gonzales arrived at the crime scene only after the victim was rushed to the hospital
considering that the incident took place just in front of her store. Besides, this claim was easily demolished by Gonzales' detailed account
of the fight.

The fact that the witnesses did not immediately report the incident to the police does not necessarily discredit them. After all, reports were
made albeit by different persons. The accused banks on the apparent inconsistency as to why Gonzales failed to give immediately her
account of the killing to the authorities. But the discrepancy is so minor that it cannot undermine her credibility nor detract from the truth
that she personally witnessed the incident and positively identified the accused.

The accused leans heavily on the Advance Information Sheet6 prepared by Pat. Steve Casimiro which did not mention him at all and
named only "Ramon Doe" as the principal suspect. Unfortunately this cannot defeat the positive and candid testimonies of the prosecution
witnesses. Entries in official records, as in the case of a police blotter, are only prima facie evidence of the facts therein stated. They are
not conclusive. The entry in the police blotter is not necessarily entitled to full credit for it could be incomplete and inaccurate, sometimes
from either partial suggestions or for want of suggestions or inquiries, without the aid of which the witness may be unable to recall the
connected collateral circumstances necessary for the correction of the first suggestion of his memory and for his accurate recollection of
all that pertain to the subject. It is understandable that the testimony during the trial would be more lengthy and detailed than the matters
stated in the police blotter7 Significantly, the Advance Information Sheetwas never formally offered by the defense during the proceedings
in the court below. Hence any reliance by the accused on the document must fail since the court cannot consider any evidence which
has not been formally offered.8

Parenthetically, the Advance Information Sheet was prepared by the police officer only after interviewing Camba, an alleged eyewitness.
The accused then could have compelled the attendance of Camba as a witness. The failure to exert the slightest effort to present Camba
on the part of the accused should militate against his cause.

Entries in official records made in the performance of his duty by a public officer or by a person in the performance of a duty specially
enjoined by law are prima facie evidence of the facts therein stated.9 But to be admissible in evidence three (3) requisites must concur:
(a) The entry was made by a police officer or by another person specially enjoined by law to do so; (b) It was made by the public officer
in the performance of his duties or by such other person in the performance of a duty specially enjoined by law; and, (c) The public officer
or other person had sufficient knowledge of the facts by him stated, which must have been acquired by him personally or through official
information. 10

The Advance Information Sheet does not constitute an exception to the hearsay rule, hence, inadmissible. The public officer who prepared
the document had no sufficient and personal knowledge of the stabbing incident. Any information possessed by him was acquired from
Camba which therefore could not be categorized as official information because in order to be classified as such the persons who made
the statements not only must have personal knowledge of the facts stated but must have the duty to give such statements for the
record. 11 In the case of Camba, he was not legally so obliged to give such statements.

The accused enumerates discrepancies in the testimonies of the prosecution witnesses. Thus, according to him, it was testified that the
victim was stabbed by the accused at the back but failed to point out its precise location. The stabbing admittedly occurred at around
seven o'clock in the evening but the Advance Information Sheet reported "6:30 p.m." One witness testified that the fistfight was only
between the victim and "Ramon Doe," while another reported that it involved the victim, "Ramon Doe" and the accused. Further, it was
not accurately determined whether Ramon and the accused returned to the scene of the crime within five (5) minutes or after the lapse
thereof.

As previously stated, the discrepancies do not militate against the fact firmly established by the prosecution that Tonog was stabbed at
the back by the accused and by "Ramon Doe" in the abdomen. Any discordance noted is so minor and insignificant that no further
consideration is essential. The most honest witnesses make mistakes sometimes, but such innocent lapses do not necessarily impair
their credibility. The testimony of a witness must be considered and calibrated in its entirety and not by truncated portions thereof or
isolated passages therein. 12

The presence of the accused in the vicinity even after the commission of the crime does not in any way extricate him from his dilemma.
Certainly, it is no proof of his innocence.

The court a quo properly considered the aggravating circumstance of treachery in convicting the accused of murder. Treachery is present
when the offender commits any of the crimes against person, employing means, methods or forms in the execution thereof which tend
directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might
make. 13 Alevosia or treachery presumes an attack that is deliberate and unexpected. There is no treachery when the victim is placed on
guard, as when a heated argument preceded the attack, especially when the victim was standing face to face with his assailants, and the
initial assault could not have been foreseen. 14

It is true that in the case at bench the attack was preceded by a fistfight. It was however established that they were already pacified by
onlookers when the accused and Ramon returned. Lulled into complacency the victim simply stayed where he was before the fistfight
when after a brief moment the accused together with Ramon returned with bladed weapons. Both approached the victim and circled him
surreptitiously. The attack was sudden and simultaneous that the victim was never given a chance to defend himself. As we have held
in People v. Balisteros, 15where a victim was totally unprepared for the unexpected attack from behind and had no weapon to resist it, the
stabbing could not but be considered as treacherous. The evidence proved that the victim was caught unaware by the sudden assault.
No weapon was found, nor even intimated to be, in his possession.

Conversely the court a quo should have disregarded evident premeditation. Evident premeditation requires a showing that the execution
of the criminal act was preceded by cool thought and reflection upon the resolution to carry out the criminal intent during a space of time
sufficient to arrive at a calm judgment. 16 Evidence for the prosecution showed that after the fight was broken up the accused and "Ramon
Doe" proceeded towards the highway. They returned only after a lapse of approximately five (5) minutes. From the foregoing we cannot
conclude that the accused had sufficient time within which to meditate on the consequences of his acts. Meditation necessitates that it
be evident and proven. Be that as it may, treachery as a qualifying circumstance having attended the killing, the conviction of the accused
for murder still holds.

WHEREFORE, the decision of the court a quo in Crim. Case No. 90-81744 dated 25 July 1991 convicting accused-appellant RICARDO
SAN GABRIEL Y ORTIZ of murder is AFFIRMED. The penalty of life imprisonment however is MODIFIED to reclusion perpetua, 17 while
the award of P30,000.00 as indemnity is INCREASED to P50,000.00 conformably with existing jurisprudence. Costs against accused-
appellant.

SO ORDERED.

Padilla, Vitug, Kapunan and Hermosisima, Jr., JJ., concur.

G.R. No. 201011 January 27, 2014

THERESITA, JUAN, ASUNCION, PATROCINIA, RICARDO, and GLORIA, all surnamed DIMAGUILA, Petitioners,
vs.
JOSE and SONIA A. MONTEIRO, Respondents.

DECISION

MENDOZA, J.:

This is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the August 15, 2011Decision 1and the March 5,
2012 Resolution2 of the Court of Appeals (CA), in CA-G.R. CV No. 92707, which affirmed the August 23, 2007 Decision3 of the Regional
Trial Court, Branch 27, Santa Cruz, Laguna (RTC), in Civil Case No. SC-3108.

The Facts

On July 5, 1993, the respondent spouses, Jose and Sonia Monteiro (Spouses Monteiro), along with Jose, Gerasmo, Elisa, and Clarita
Nobleza, filed their Complaint for Partition and Damages before the RTC, against the pet1t10ners, Theresita, Juan, Asuncion, Patrocinia,
Ricardo, and Gloria Dimaguila (The Dimaguilas), together with Rosalina, Jonathan, Eve, Sol, Venus, Enrique, Nina, Princess Arieta, and
Evangelina Borlaza. The complaint alleged that all the pmiies were co-owners and prayed for the pmiition of a residential house and lot
located at Gat. Tayaw St., Liliw, Laguna, with an area of 489 square meters, and covered by Tax Declaration No. 1453. Spouses Monteiro
anchored their claim on a deed of sale executed in their favor by the heirs of Pedro Dimaguila (Pedro).

In their Answer, the Dimaguilas and the other defendants countered that there was no co-ownership to speak of in the first place. They
alleged that the subject property, then owned by Maria Ignacio Buenaseda, had long been partitioned equally between her two sons,
Perfecto and Vitaliano Dimaguila, through a Deed of Extrajudicial Partition, with its southern-half portion assigned to Perfecto and the
northern-half portion to Vitaliano. They claimed that they were the heirs of Vitaliano and that Spouses Monteiro had nothing to do with
the property as they were not heirs of either Perfecto or Vitaliano.

During the course of the proceedings, several incidents were initiated, namely: (a) Motion to Dismiss for lack of legal capacity to sue of
Spouses Monteiro and for lack of cause of action; (b) Motion for Reconsideration of the Order of denial thereof, which was denied; (c)
Motion for Production and Inspection of Documents; (d) Motion for Reconsideration of the Order granting the same, which was denied;
(e) Motion to Defer Pre-trial; (f) Notice of Consignation by the petitioners in the exercise of their alleged right of redemption of the share
being claimed by the Spouses Monteiro in light of the deed of sale they produced and claimed to have been executed by the heirs of
Pedro in their favor; (g) Motion to Remove Sonia Monteiro (Sonia) as plaintiff, which was denied; (h) Motion for Reconsideration thereof,
which was also denied; (i) Motion for Clarification and/or Extended Resolution; and (j) Motion to Suspend Proceedings due to a pending
Petition for Certiorari before the CA assailing several of the RTC orders. The proceedings resumed after the promulgation by the CA of
its April 5, 2000 Resolution in CA-G.R. No. SP 52833, which upheld the assailed RTC orders.
On January 2, 2001, upon resumption of the proceedings, Spouses Monteiro filed their Motion for Leave to Amend and/or Admit Amended
Complaint.4 The RTC granted their motion. The amended complaint abandoned the original claim for partition and instead sought the
recovery of possession of a portion of the subject property occupied by the Dimagui as and other defendants, specifically, the potiion sold
to the couple by the heirs of Pedro. Furthermore, only Spouses Monteiro were retained as plaintiffs and the Dimaguilas as defendants.

In amending their complaint, Spouses Montiero adopted the Dimaguilas' admission in their original answer that the subject propetiy had
already been partitioned between Perfecto and Vitaliano, through a Deed of Extrajudicial Partition, dated October 5, 1945, and that during
their lifetime, the brothers agreed that Perfecto would become the owner of the southern-hal f portion and Vitaliano of the northern-half
portion, which division was observed and respected by them as well as their heirs and successors-in-interest.

Spouses Monteiro further averred that Perfecto was survived by Esperanza, Leandro and Pedro, who had divided the southern-half
portion equally amongst themselves, with their respective 1 /3 shares measuring 81.13 square meters each; that Pedro's share pertains
to the 1 /3 of the southern-half immediately adjacent to the northern-half adjudicated to the

Dimaguilas as heirs of Vitaliano; that on September 29, 1992, Pedro's share was sold by his heirs to them through a Bilihan ng Lahat
Naming Karapatan (Bilihan) with the acquiescence of the heirs of Esperanza and Leandro appearing in an Affidavit of Conformity and
Waiver; and that when they attempted to take possession of the share of Pedro, they discovered that the subject portion was being
occupied by the Dimaguilas.

In their Answer5 to the amended complaint, the Dimaguilas admitted that the subject property was inherited by, and divided equally
between Perfecto and Vitaliano, but denied the admission in their original answer that it had been actually divided into southern and
nmihern portions. Instead, they argued that the Extrajudicial Partition mentioned only the division of the subject property "into two and
share and share alike." In effect, they argued the existence of a co-owenrship, contrary to their original position. The Dimaguilas further
argued that the Bilihan did not specify the metes and bounds of the property sold, in violation of Article 1458 of the Civil Code. Even
assuming that such had been specified, they averred that the sale of a definite portion of a property owned in common was void since a
co-owner could only sell his undivided share in the property.

During the trial, Spouses Monteiro presented Pedrito Adrieta, brother of Sonia Monteiro (Sonia), who testified that Perfecto was his
grandfather and that at the time of Perfecto's death, he had two properties, one of which was the subject property in Liliw, Laguna, which
went to his children, Esperanza, Leonardo and Pedro. Pedro was survived by his children Pedrito, Theresita, Francisco, and Luis, who,
in turn, sold their rights over the subject property to Sonia.

Sonia testified that she was approached by Pedro's son, Francisco, and was asked if she was interested in purchasing Pedro's 1/3 share
of the southern portion of the Bahay na Sato, and that he showed her a deed of extrajudicial partition executed by and between Perfecto
and Vitaliano, as well as the tax declaration of the property to prove that the property had already been partitioned between the two
brothers.

Engineer Baltazar F. Mesina testified that he was the geodetic engineer hired by Spouses Monteiro to survey the property in Liliw, and
recounted that he checked the boundary of the subject property, subdivided the lot into two and came up with a survey plan.
Crisostomo Arves, an employee from the Office of the Municipal Assessor, presented a certified true copy of the cadastral map of Liliw
and a list of claimants/owners.

Dominga Tolentino, a record officer of the Department of Environment and Natural Resources (DENR), testified that as part of her duties,
she certifies and safekeeps the records of surveyed land, including cadastral maps from the region.

One of the Dimaguilas, Asuncion, was the sole witness for the defendants. She testified that their first counsel made a mistake when he
alleged in their original answer that the property had already been partitioned into n01ihern and southern portions between the two
brothers, as the original answer had been rushed and they were never given a copy of it. She claimed that the mistake was only pointed
out to her by their new counsel after their former counsel withdrew due to cancer. She further testified that there was no intention to
partition the "bahay na bato" which stood on the subject property, in order to preserve its historical and sentimental value.

Ruling of the RTC

In its August 23, 2007 Decision, the RTC ruled in favor of Spouses Monteiro and ordered the Dimaguilas to turn over the possession of
the subject 1 /3 portion of the southern-half of the property, to wit:

WHEREOF, judgment is hereby rendered in favor of the plaintiffs and against the defendants:

a. Ordering the defendants and all persons claiming rights under them to peacefully vacate and turn-over possession of 1/ 3 of the
southern portion of the property covered by Tax Declaration No. 1453, specifically described as "A" of Lot 877 in the sketch plan
marked as Exhibit "I", within 60 days from the finality of this Decision, failing which let a writ of possession issue;

b. Ordering the defendants to pay the plaintiffs, jointly and solidarily, the amount of ?500 per month in the form of rent for the use
of the property from July 1993 until the property is vacated;

c. Ordering the defendants to pay the plaintiffs, jointly and solidarily, attorney's fees of ₱30,000 and litigation expense of ₱20,000.

SO ORDERED.6

The RTC found that although the extrajudicial partition merely divided the property into two share and share alike, evidence aliunde was
appreciated to show that there was an actual division of the property into south and north between Perfecto and Vitaliano, and that such
partition was observed and honored by their heirs. These pieces of evidence were the cadastral map of Liliw 7 and a corresponding list of
claimants, which showed that the subject property had long been registered as Lot 876 (northern-half), claimed by Buenaventura
Dimaguila (Buenaventura), an heir of Vitaliano, and Lot 877 (southern-half), claimed by Perfecto.

The RTC held that the manner of partition was admitted by the Dimaguilas themselves in their original answer. It gave no credence to
the claim of Asuncion that such admission was an error of their fonner counsel and that she was unaware of the contents of their original
answer. It noted that the Dimaguilas had strongly maintained their theory of partition from 1992 when the complaint was first filed, and
only changed their defense in 2001 when Spouses Monteiro filed their amended complaint. It keenly observed that it was precisely their
admission which propelled Spouses Monteiro to amend their complaint from one of partition to recovery of possession. Thus, the RTC
concluded that there was indeed a partition of the subject property into southern-half and northern-half portions between Perfecto and
Vitaliano and that the Dimaguilas were estopped from denying the same.

As to the authenticity of the Bilihan, where the 1 /3 share of Pedro was sold to Spouses Monteiro, the RTC found the document to be
regular and authentic absent any piece of evidence to the contrary. It stated that the proper persons to contest the sale were not the
Dimaguilas, who were the heirs of Vitaliano, but the heirs of Perfecto. It noted that the records showed that the heirs of Esperanza and
Leandro (Pedro's siblings), had signified their conformity to the pa1iition and to the sale of Pedro's 1 /3 portion.

Ruling of the CA

In its assailed August 15, 2011 Decision, the CA affirmed the ruling of the RTC.

The CA found that Spouses Monteiro had established their case by a preponderance of evidence thru their presentation of the Deed of
Extrajudicial Partition,8 the cadastral map and the municipal assessor's records. 9 It noted, more importantly, that the Dimaguilas
themselves corroborated the claim of partition in their original answer. It likewise ruled that the petitioners were estopped from denying
their admission of partition after the respondent spouses had relied on their judicial admission.

The Dimaguilas also insisted on their argument, which was raised before the RTC, but not addressed, that the Bilihan should not have
been admitted as evidence for lack of a documentary stamp tax, in accordance with Section 201 of the National Internal Revenue Code
(N!RC). Citing Gabucan v. Manta10 and Del Rosario v. Hamoy,11 the CA, however, ruled that if a document which did not bear the required
documentary stamp was presented in evidence, the court should require the proponent to affix the requisite stamp. The CA noted that
the RTC had failed to direct Spouses Monteiro to affix the stamp and merely reminded the presiding judge to be more vigilant on similar
situations in the future. Nonetheless, it held that the petitioners did not possess the necessary personality to assail the sale between
Spouses Monteiro and the heirs of Pedro because it pe1iained to the southern-half of the property to which they had no claim.

The CA likewise found sufficient basis for the award of rentals as compensatory damages since Spouses Monteiro were wrongfully
deprived of possession of the 1/3 portion of the southern-half of the subject property. It also upheld the award of attorney's fees and
litigation expenses by the RTC, considering that Spouses Monteiro were compelled to litigate and incur expenses to protect their rights
and interest.

In its assailed March 5, 2012 Resolution, the CA denied the petitioners' motion for reconsideration for lack of merit.

Hence, this petition.

ASSIGNMENT OF ERRORS
I

THE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THERE WAS AN ACTUAL PARTITION OF THE PROPERTY
COVERED BY TAX DECLARATION NO. 1453.

II

THE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE 1/3 PORTION OF THE SOUTHERN HALF OF THE PROPERTY
WAS SOLD TO THE RESPONDENTS.

III

THE COURT OF APPEALS GRAVELY ERRED IN ADMITTING IN EVIDENCE EXHIBIT C, THE BIL/HAN NG LAHA T NAMING
KARAPATAN.

IV

THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE RESPONDENTS ARE ENTITLED TO RECOVER POSSESSION
OF THE 1/3 PORTION OF THE SOUTHERN HALF OF THE PROPERTY.

THE COURT OF APPEALS GRAVELY ERRED IN FINDING THE PETITIONERS LIABLE FOR RENTALS FOR THE USE OF THE
PROPERTY FROM JULY 1993 UNTIL VACATED.

VI

THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THE PETITIONERS LIABLE FOR ATTORNEY'S FEES AND LITIGATION
EXPENSES.

VII

THE COURT OF APPEALS GRAVELY ERRED WHEN IT FAILED TO CONSIDER THE PETITIONERS' SUPPLEMENTAL ANSWER
TO AMENDED COMPLAINT AND TO GRANT THE COUNTERCLAIMS INTERPOSED THEREIN. 12

The Dimaguilas argue that their original allegation regarding the partition of the subject property into northern and southern portions was
a mistake of their former counsel, and it was not their intention to partition the property because to do so would damage the house
thereon. Even assuming an admission was made, the petitioners aver that such was made only by some, but not all, of the co-owners;
and that partition can only be made by all co-owners, and allowing the admission is tantamount to effecting partition by only some co-
owners. Spouses Monteiro themselves, in their original complaint, made an admission that they were co-owners of the property and
asserted that there was no partition. The evidence aliunde considered by the RTC, consisting of the cadastral map and the list of
claimants, were timely objected to during the trial as hearsay and a violation of the best evidence rule.

The petitioners reiterate that the Bilihan should not have been admitted into evidence because it lacked the documentary stamp tax
required by Section 201 of the NIRC, providing that no document shall be admitted in evidence until the requisite stamps have been
affixed thereto. They argue that the ruling of petitioners' lack of personality to assail the deed of sale is different from the issue of the deed
of sale's admissibility as evidence. They conclude that considering that no documentary stamp was ever affixed on the deed of sale, such
should never have been admitted into evidence and consequently, should not have been relied upon by the lower courts to prove the
sale of 1/3 of the southern portion; and that considering that the Bilihan is inadmissible as evidence, the respondent spouses have no
basis for their claim to the subject 1/3 portion of the southern-half of the property. Thus, they insist that the lower courts erred in awarding
to Spouses Monteiro the possession of the subject prope1iy, the rentals, attorney's fees and litigation expenses, and in failing to rule on
their counterclaim for demolition of improvements and payment of damages.

The assignment of errors boils down to two main issues:

I. Whether there was a pa1iition of the subject property; and

2. Whether the 1/3 portion of the southern-half of the subject property was sold to the respondent spouses.

Ruling of the Court

At the outset, it must be pointed out that the petitioners' assignment of errors calls for the Court to again evaluate the evidence to determine
whether there was a partition of the property and whether the 1/3 portion of the southern half was sold to the respondent spouses. These
clearly entail questions of fact which are beyond the Court's ambit of review under Rule 45 of the Rules of Court, especially considering
that the findings of fact of the RTC were affirmed by the CA. 13 On this ground alone, the present petition must be denied. Nonetheless,
the Court shall delve into these factual issues to finally put this case to rest.

Partition of the Subject Property

Spouses Monteiro, as plaintiffs in the original case, had the burden of proof to establish their case by a preponderance of evidence, which
is the weight, credit, and value of the aggregate evidence on either side, synonymous with the term "greater weight of the evidence."
Preponderance of evidence is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition
thereto.14

To prove their claim of partition, the respondent spouses presented the following: (1) the Deed of Extrajudicial Partition, dated October 5,
1945, executed by and between the brothers Perfecto and Vitaliano; (2) the cadastral map of Liliw Cadm-484,15 dated August 6, 1976,
showing that the subject property had been divided into southern and northern portions, registered as Lot Nos. 876 and 877; and (3) the
Municipal Assessor's records16 showing that the said lots were respectively claimed by Buenaventura and Perfecto.

It is undisputed that the Deed of Extrajudicial Partition stated that Perfecto and Vitaliano agreed "to divide between them into two and
share and share alike" the subject property, including the house situated thereon. It appears, however, that the property was actually
partitioned into definite portions, namely, southern and northern halves, as reflected in the cadastral map of Liliw, which were respectively
claimed by an heir of Vitaliano and Perfecto himself. It, thus, appears that the subject property had already been partitioned into definite
portions more than 20 years prior to the original complaint for partition filed in 1993, and that such division had been observed by the
brothers' heirs. As earlier pointed out, the petitioners themselves admitted to this very fact in their original answer, to wit:

(b) On September 5, 1945 the brothers PERFECTO and VITALIANO DIMAGUILA executed a deed of EXTRA JUDICIAL PARTITION of
the aforedescribed property dividing the same into two (2) equal parts as indicated in the aforesaid deed as follows, to wit:

xxx

(c) As a result of the foregoing partition and as known by all the parties in this case from the beginning or as soon as they reached the
age of discernment PERFECTO DIMAGUILA became the sole and exclusive owner of the southern half of the aforedescribed property
and VITALIANO DIMAGUILA became the sole owner of the northern half of the same property; the house that was built thereon and still
existing up to this time was likewise equally divided between the two (2) DIMAGUILA brothers in accordance with the extrajudicial partition
of half equal shares;

xxx

2. In other words, the share of VITALIANO DIMAGUILA in the above described property has already been long segregated and had
passed on to his heirs as is very well known by all the parties in this case; 17

xxx

(Emphases in the Original)

Section 418 of Rule 129 of the Rules of Court provides that an admission made by a pa1iy in the course of the proceedings in the same
case does not require proof, and may be contradicted only by showing that it was made through palpable mistake. The petitioners argue
that such admission was the palpable mistake of their former counsel in his rush to file the answer, a copy of which was not provided to
them. Petitioner Asuncion testified:

Q So, why was that allegations (sic) made in the Answer?

A May be, (sic) in his rush to file the Answer, Atty. Paredes filed the same without giving us a copy ...19
This contention is unacceptable. It is a purely self-serving claim unsupported by any iota of evidence. Bare allegations, unsubstantiated
by evidence, are not equivalent to proof.20 Furthermore, the Court notes that this position was adopted by the petitioners only almost eight
(8) years after their original answer was filed, in response to the amended complaint of the respondent spouses. In their original answer
to the complaint for partition, their claim that there was already a partition into northern-half and southern-half portions, was the very
essence of their defense. It was precisely this admission which moved the respondent spouses to amend their complaint. The petitioners
cannot now insist that the very foundation of their original defense was a palpable mistake.

Article 143121 of the Civil Code provides that through estoppel, an admission is rendered conclusive upon the person making it, and
cannot be denied or disproved as against the person relying thereon. The respondent spouses had clearly relied on the petitioners'
admission and so amended their original complaint for partition to one for recovery of possession of a portion of the subject property.
Thus, the petitioners are now estopped from denying or attempting to prove that there was no partition of the property.

Considering that an admission does not require proof, the admission of the petitioners would actually be sufficient to prove the partition
even without the documents presented by the respondent spouses. If anything, the additional evidence they presented only served to
corroborate the petitioners' admission.

The petitioners argue that they timely objected to the cadastral map and the list of claimants presented by the respondent spouses, on
the ground that they violated the rule on hearsay and the best evidence rule.

Anent the best evidence rule, Section 3( d) of Rule 130 of the Rules of Court provides that when the subject of inquiry is the contents of
a document, no evidence shall be admissible other than the original document itself, except when the original is a public record in the
custody of a public officer or is recorded in a public office.22 Section 7 of the same Rule provides that when the original of a document is
in the custody of a public officer or is recorded in a public office, its contents may be proved by a certified copy issued by the public officer
in custody thereof.23 Section 24 of Rule 132 provides that the record of public documents may be evidenced by a copy attested by the
officer having the legal custody or the record.24

Certified true copies of the cadastral map of Liliw and the corresponding list of claimants of the area covered by the map were presented
by two public officers. The first was Crisostomo Arves, Clerk III of the Municipal Assessor's Office, a repository of such documents. The
second was Dominga Tolentino, a DENR employee, who, as a record officer, certifies and safekeeps records of surveyed land involving
cadastral maps. The cadastral maps and the list of claimants, as ce1iified true copies of original public records, fall under the exception
to the best evidence rule.

As to the hearsay rule, Section 44 of Rule 130 of the Rules of Court similarly provides that entries in official records are an exception to
the rule.25 The rule provides that entries in official records made in the performance of the duty of a public officer of the Philippines, or by
a person in the performance of a duty specially enjoined by law, are prima facie evidence of the facts therein stated. The necessity of this
rule consists in the inconvenience and difficulty of requiring the official's attendance as a witness to testify to the innumerable transactions
in the course of his duty. The document's trustworthiness consists in the presumption of regularity of performance of official duty.26
Cadastral maps are the output of cadastral surveys. The DENR is the department tasked to execute, supervise and manage the conduct
of cadastral surveys.27 It is, therefore, clear that the cadastral map and the corresponding list of claimants qualify as entries in official
records as they were prepared by the DENR, as mandated by law. As such, they are exceptions to the hearsay rule and are primafacie
evidence of the facts stated therein.

Even granting that the petitioners had not admitted the partition, they presented no evidence to contradict the evidence of the respondent
spouses. Thus, even without the admission of the petitioners, the respondent spouses proved by a preponderance of evidence that there
had indeed been a partition of the subject property.

Sale of 1/3 Portion of the Southern-half

To prove that 1/3 of the southern-half portion of the subject property was sold to them, Spouses Monteiro presented a deed of sale entitled
Bilihan ng Lahat Naming Karapatan,28 dated September 29, 1992, wherein Pedro's share was sold by his heirs to them, with the
acquiescence of the heirs of Esperanza and Leandro in an Affidavit of Conformity and Waiver. 29 The petitioners argue that the Bilihan
should not have been admitted into evidence because it lacked the documentary stamp tax required by Section 201 of the NIRC.

On August 29, 1994, the petitioners filed a motion for the production and/or inspection of documents, 30 praying that Spouses Monteiro be
ordered to produce the deed of sale, which they cited as the source of their rights as co-owners. On November 20, 1995, Spouses
Monteiro submitted their compliance,31 furnishing the RTC and the petitioners with a copy32 of the Bilihan. On January 3, 1996, the
petitioners filed a notice of consignation,33manifesting that they had attempted to exercise their right of redemption as co-owners of the
1/3 portion of the southern half of the property under Article 162334 of the Civil Code by sending and tendering payment of redemption to
Spouses Monteiro, which was, however, returned.

By filing the notice of consignation and tendering their payment for the redemption of the 1/3 portion of the southern-half of the property,
the petitioners, in effect, admitted the existence, due execution and validity of the Bilihan. Consequently, they are now estopped from
questioning its admissiblity in evidence for relying on such for their right of redemption. Additionally, the Court notes that the copy35 of the
Bilihan which was originally submitted by Spouses Monteiro with its compliance filed on November 20, 1995, does in fact bear a
documentary stamp tax. It could only mean that the documentary stamp tax on the sale was properly paid. The Bilihan was, therefore,
properly admitted into evidence and considered by the RTC.

In any case, as correctly held by the lower cou1is, the petitioners, as heirs of Vitaliano, who inherited the northern-half po1iion of the
subject property, do not possess the necessary personality to assail the sale of the southern-half portion between Spouses Monteiro and
the heirs of Pedro.1âwphi1 They are not real parties-in-interest who stand to be benefited or injured by the sale of the 1/3 portion of the
southern-half over which they have absolutely no right. As correctly ruled by the courts below, only fellow co-owners have the personality
to assail the sale, namely, the heirs of Pedro's siblings, Esperanza and Leandro. They have, however, expressly aquiesced to the sale
and waived their right to the property in the affidavit presented by Spouses Monteiro. 36 As such, the petitioners have no right to their
counterclaims of demolition of improvements and payment of damages.
With Spouses Monteiro having sufficiently proved their claim over the subject I /3 portion of the southern-half of the prope1iy through the
Bilihan, the lower courts did not err in awarding possession, rentals, attorney's fees, and litigation expenses to them.

The Court, however, finds that the award of rentals should be reckoned from January 2, 2001, the date the Spouses Monteiro filed their
Amended Complaint seeking recovery of the subject portion. Interest at the rate of 6% per annum shall also be imposed on the total
amount of rent due from finality of this Decision until fully paid.37

WHEREFORE, the petition is DENIED. The August 15, 2011 Decision and the March 15, 2012 Resolution of the Court of Appeals, in CA-
G .R. CV No. 92707 are AFFIRMED with MODIFICATION, in that:

a. The award of rent at the rate of ₱500.00 per month shall be reckoned from January 2, 2001 until the property is vacated; and

b. Interest at the rate of 6% per annum shall be imposed on the total amount of rent due from finality of this Decision until fully
paid.

SO ORDERED.

JOSE CATRAL MENDOZA

Associate Justice
G.R. No. 200055, September 10, 2014

STANDARD INSURANCE CO., INC., Petitioner, v. ARNOLD CUARESMA AND JERRY B. CUARESMA, Respondents.

DECISION

PERALTA, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to reverse and set
aside the Decision1 and Resolution,2 dated June 22, 2011 and January 16, 2012, respectively, of the Court of Appeals
(CA) in CA-G.R. SP No. 117785.

The antecedent facts are as follows:chanRoblesvirtualLawlibrary

On March 20, 2004, two vehicles, one driven by Jefferson Cham and insured with petitioner Standard Insurance Co.,
Inc., and the other owned by respondent Arnold Cuaresma and driven by respondent Jerry B. Cuaresma, figured in an
accident at North Avenue, Quezon City.3 Consequently, the damage on the vehicle driven by Cham was repaired, the
cost of which was borne by petitioner. Cham then executed a Release of Claim in favor of petitioner subrogating the
latter to all his rights to recover on all claims, demands, and rights of action on account of the loss, damage, or injury
sustained as a consequence of the accident from any person liable thereto.4 Based on said document, petitioner, in its
letter5 dated April 15, 2004 addressed to respondents, demanded the payment of the sum spent on repairing the vehicle
driven by Cham.

Meanwhile, on August 10, 2004, an Information6 was filed with the Metropolitan Trial Court (MeTC) of Quezon City
charging Cham of the crime of Reckless Imprudence Resulting in Damage to Property docketed as Criminal Case No.
020256. During the pendency thereof, on March 17, 2008, petitioner, claiming that respondents collided with Cham's
vehicle in a reckless and imprudent manner, filed a Complaint7 for Sum of Money with the MeTC of Manila against
respondents, docketed as Civil Case No. 184854, demanding payment of the sum of P256,643.26 representing the cost
of repairs on Cham's vehicle.

Respondents, however, were declared in default on December 12, 2008 for failure to file their responsive pleading to
petitioner's Complaint despite several opportunities granted by the MeTC of Manila.8 As a result, petitioner was allowed
to present its evidence exparte.

Finding that petitioner sufficiently proved its claims by preponderance of evidence, the MeTC ruled in favor of petitioner
in its Decision9 dated January 8, 2010, the dispositive portion of which reads:chanRoblesvirtualLawlibrary
IN VIEW THEREOF, judgment is hereby rendered ordering defendants Arnold Cuaresma and Jerry B. Cuaresma, jointly
and severally, to:chanRoblesvirtualLawlibrary

1. Pay plaintiff the sum of TWO HUNDRED FIFTY-SIX THOUSAND SIX HUNDRED FORTY-THREE PESOS AND TWENTY-
SIX CENTAVOS (Php256,643.26) with interest at the rate of 12% per annum from the date of the filing of the complaint;

2. Pay plaintiff the sum of Php 10,000.00 as and for attorney's fees;

3. Pay the costs of the suit.

SO ORDERED.

The RTC, however, reversed the ruling of the MeTC in its Decision10 dated September 17, 2010. Contrary to the findings
of the MeTC, the RTC found that not only were there inconsistencies in the evidence presented by petitioner as to its
corporate identity as well as the amount of the supposed cost of indemnification, but petitioner also failed to sufficiently
prove that the proximate cause of the damage incurred by Cham's vehicle was respondents' fault or negligence. In
addition, on respondents' argument that the instant case must be consolidated with the prior criminal suit they filed
against Cham, the RTC disagreed and ruled that criminal and civil cases can proceed independently. 11cralawlawlibrary

On appeal, the CA likewise found that the evidence proffered by petitioner is insufficient to support its averment of
negligence. Consequently, it affirmed the RTC's Decision and further denied petitioner's Motion for Reconsideration in
its Resolution12 dated January 16, 2012.

Hence, the present petition.

Petitioner essentially invokes the following ground to support its petition:chanRoblesvirtualLawlibrary

I.

THE COURT OF APPEALS ERRED IN AFFIRMING THE CONCLUSIONS OF THE REGIONAL TRIAL COURT THAT
PETITIONER'S EVIDENCE, SPECIFICALLY THE TESTIMONY OF ITS ASSURED, JEFFERSON CHAM AND ITS ASSISTANT
VICE-PRESIDENT FOR CLAIMS, CLETO D. OBELLO, JR., AS WELL AS THE TRAFFIC ACCIDENT REPORT, ARE
INSUFFICIENT TO PROVE ITS CLAIMS BY THE REQUIRED QUANTUM OF EVIDENCE.

Petitioner contends that the testimonies of its witnesses Cham and Obello sufficiently prove its claims, since the former
has personal knowledge on the events that transpired during the vehicular accident and the latter was in a position to
prove the amount incurred for the repair of the damages on Cham's vehicle. It also argues that its failure to present
SPO2 Felicisimo V. Cuaresma, the police investigator who prepared the traffic accident report submitted in evidence, is
not fatal to its cause of action.

In their Comment,13 respondents counter that the bare allegations of Cham on negligence cannot be deemed sufficient
to prove petitioner's claim. They also claim that in order for the traffic accident report to obtain probative value, the
police officer who prepared it must be identified in court. On a procedural matter, respondents allege that petitioner, in
failing to disclose the pendency of the criminal suit against its assured Cham, is guilty of forum shopping.

Prefatorily, We address the issue of forum shopping in saying that the essence of forum shopping is the filing by a party
against whom an adverse judgment has been rendered in one forum, seeking another and possibly a favorable opinion
in another suit other than by appeal or special civil action for certiorari.14 It is the act of filing multiple suits involving
the same parties for the same cause of action, either simultaneously or successively for the purpose of obtaining a
favorable judgment.15 However, as the RTC already mentioned, there exists no forum shopping herein for the filing of
the instant suit is expressly allowed to proceed independently of the criminal action filed by respondents.

In the similar case of Casupanan v. Laroya,16 wherein as a result of a vehicular accident, a party involved therein filed
a criminal case for reckless imprudence resulting in damage to property against the other party, who, in turn, filed a
civil suit against the party instituting the criminal action, We held that the party filing the separate civil action cannot
be liable for forum shopping in the following wise:chanRoblesvirtualLawlibrary

xxx However, there is no forum shopping in the instant case because the law and the rules expressly allow
the filing of a separate civil action which can proceed independently of the criminal action.

Laroya filed the criminal case for reckless imprudence resulting in damage to property based on the Revised Penal Code,
while Casupanan and Capitulo filed the civil action for damages based on Article 2176 of the Civil Code. Although these
two actions arose from the same act or omission, they have different causes of action. The criminal case is
based on culpa criminal punishable under the Revised Penal Code, while the civil case is based on culpa
aquiliana actionable under Articles 2176 and 2177 of the Civil Code. These articles on culpa aquiliana
read:chanRoblesvirtualLawlibrary

"Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for
the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called
a quasi-delict and is governed by the provisions of this Chapter.

Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the
civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same
act or omission of the defendant."

Any aggrieved person can invoke these articles provided he proves, by preponderance of evidence, that he
has suffered damage because of the fault or negligence of another. Either the private complainant or the
accused can file a separate civil action under these articles. There is nothing in the law or rules that state
only the private complainant in a criminal case may invoke these articles.

Moreover, paragraph 6, Section 1, Rule 111 of the 2000 Rules on Criminal Procedure ("2000 Rules" for brevity) expressly
requires the accused to litigate his counterclaim in a separate civil action, to wit:chanroblesvirtuallawlibrary
"SECTION 1. Institution of criminal and civil actions. - (a) x x x.

No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause
of action which could have been the subject thereof may be litigated in a separate civil action." (Italics
supplied)
Since the present Rules require the accused in a criminal action to file his counterclaim in a separate civil
action, there can be no forum-shopping if the accused files such separate civil action.

x x x x

The crucial question now is whether Casupanan and Capitulo, who are not the offended parties in the criminal case, can
file a separate civil action against the offended party in the criminal case. Section 3, Rule 111 of the 2000 Rules provides
as follows:chanroblesvirtuallawlibrary
"SEC 3. When civil action may proceed independently. - In the cases provided in Articles 32, 33, 34 and 2176 of the
Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed
independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the
offended party recover damages twice for the same act or omission charged in the criminal action." (Italics supplied)

xxxx
There is no question that the offended party in the criminal action can file an independent civil action for quasi-
delict against the accused. Section 3 of the present Rule 111 expressly states that the "offended party" may bring such
an action but the "offended party" may not recover damages twice for the same act or omission charged in the criminal
action. Clearly, Section 3 of Rule 111 refers to the offended party in the criminal action, not to the accused.

Casupanan and Capitulo, however, invoke the ruling in Cabaero vs. Cantos12 where the Court held that the accused
therein could validly institute a separate civil action for quasi-delict against the private complainant in the criminal case.
In Cabaero, the accused in the criminal case filed his Answer with Counterclaim for malicious prosecution. At that time,
the Court noted the "absence of clear-cut rules governing the prosecution on impliedly instituted civil actions and
the necessary consequences and implications thereof." Thus, the Court ruled that the trial court should
confine itself to the criminal aspect of the case and disregard any counterclaim for civil liability. The Court
further ruled that the accused may file a separate civil case against the offended party "after the criminal
case is terminated and/or in accordance with the new Rules which may be promulgated." The Court
explained that a cross-claim, counterclaim or third-party complaint on the civil aspect will only
unnecessarily complicate the proceedings and delay the resolution of the criminal case.

Paragraph 6, Section 1 of the present Rule 111 was incorporated in the 2000 Rules precisely to address the lacuna
mentioned in Cabaero. Under this provision, the accused is barred from filing a counterclaim, cross-claim or
third-party complaint in the criminal case. However, the same provision states that "any cause of action
which could have been the subject (of the counterclaim, cross-claim or third-party complaint) may be
litigated in a separate civil action." The present Rule 111 mandates the accused to file his counterclaim in
a separate civil action which shall proceed independently of the criminal action, even as the civil action of
the offended party is litigated in the criminal action.17chanrobleslaw

On the basis of the foregoing decision, therefore, petitioner, who is subrogated to the rights of Cham, the accused in
the criminal case instituted by respondents, cannot be guilty of forum shopping for its separate civil action is expressly
allowed to proceed independently of the criminal action involved herein.

It must be noted, however, that notwithstanding the allowance of the instant petition to proceed independently of the
criminal action, the claims of petitioner cannot be sustained in the absence of satisfactory evidence proving its right
thereto.

In civil cases, basic is the rule that the party making allegations has the burden of proving them by a preponderance of
evidence. He must rely on the strength of his own evidence and not upon the weakness of the defense offered by his
opponent. This principle equally holds true, even if the defendant had not been given the opportunity to present evidence
because of a default order.18cralawlawlibrary

Preponderance of evidence is the weight, credit, and value of the aggregate evidence on either side and is usually
considered to be synonymous with the term "greater weight of the evidence" or "greater weight of the credible
evidence." It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition
thereto.19 The reason for this is that bare allegations, unsubstantiated by evidence, are not equivalent to proof. Mere
allegations, therefore, cannot be deemed as evidence.20cralawlawlibrary
To prove the allegations in its complaint, herein petitioner presented testimonies of its assured and its Assistant Vice-
President, the Traffic Accident Investigation Report, and documents evidencing the assured's insurance policy with
petitioner as well as the payment of repair expenses. As aptly ruled by the RTC and the CA, however, the evidence
presented by petitioner failed to preponderantly establish negligence on the part of the respondents.

While petitioner may have proven the fact of its payment of the expenses for the repair of Cham's vehicle through the
testimony of its Assistant Vice-President and other supporting receipts and documents, it fell short in proving that the
damage caused on said vehicle was due to the fault of the respondents.

As correctly held by the RTC and the CA, the Traffic Accident Investigation Report 21 cannot be given probative weight.
Section 44 of Rule 130 provides:chanRoblesvirtualLawlibrary

SEC. 44. Entries in official records - Entries in official records made in the performance of his duty by a public officer of
the Philippines, or by a person in the performance of a duty specially enjoined by law are prima facie evidence of the
facts therein stated.

Moreover, for the Traffic Accident Investigation Report to be admissible as prima facie evidence of the facts therein
stated, the following requisites must be present:chanRoblesvirtualLawlibrary

x x x (a) that the entry was made by a public officer or by another person specially enjoined by law to do so; (b) that
it was made by the public officer in the performance of his duties, or by such other person in the performance of a duty
specially enjoined by law; and (c) that the public officer or other person had sufficient knowledge of the facts by him
stated, which must have been acquired by him personally or through official information.22chanrobleslaw

Regrettably, in this case, petitioner failed to prove the third requisite cited above. As correctly noted by the courts
below, while the Traffic Accident Investigation Report was exhibited as evidence, the investigating officer who prepared
the same was not presented in court to testify that he had sufficient knowledge of the facts therein stated, and that he
acquired them personally or through official information.23 Neither was there any explanation as to why such officer was
not presented. We cannot simply assume, in the absence of proof, that the account of the incident stated in the report
was based on the personal knowledge of the investigating officer who prepared it.

Thus, while petitioner presented its assured to testify on the events that transpired during the vehicular collision, his
lone testimony, unsupported by other preponderant evidence, fails to sufficiently establish petitioner's claim that
respondents' negligence was, indeed, the proximate cause of the damage sustained by Cham's vehicle.
It bears stressing, as the courts below have explained, that subrogation is ultimately the substitution of one person in
the place of another with reference to a lawful claim or right, so that he who is substituted succeeds to the rights of the
other in relation to a debt or claim, including its remedies or securities. The rights to which the subrogee succeeds are
the same as, but not greater than, those of the person for whom he is substituted, that is, he cannot acquire any claim,
security or remedy the subrogor did not have. In other words, a subrogee cannot succeed to a right not possessed by
the subrogor. A subrogee, in effect, steps into the shoes of the insured and can recover only if the insured likewise could
have recovered.24cralawlawlibrary

Hence, before We can sustain petitioner's argument that its right to be reimbursed for the repair is by operation of law
upon mere proof of payment of the insurance claim, a determination of the liability of respondents vis-a-viz the assured
in the vehicular collision must first be made, for petitioner cannot acquire any claim, security or remedy its assured did
not have. Considering, however, the insufficiency of preponderant evidence attributing negligence on respondents
resulting in the damage sustained by the assured's vehicle, it will be unfair to hold respondents liable for the same,
payment by petitioner of its costs, notwithstanding.

WHEREFORE, premises considered, the instant petition is DENIED. The Decision and Resolution, dated June 22, 2011
and January 16, 2012, respectively, of the Court of Appeals in CA-G.R. SP No. 117785 are hereby AFFIRMED.

Velasco, Jr., (Chairperson), Villarama, Jr., Reyes, and Jardeleza, JJ., concur.