Crim Law 1 Case Digest: Perez v. CA 2002

Perez v. CA

G.R. No. 143838 May 9, 2002

Lessons Applicable: Attempted Rape (abandoned)

Laws Applicable:

FACTS:
•    March 25, 1988: Julita Tria was in the kitchen doing the dishes when Adelmo Perez Y Agustin appeared at her back with unzipped shorts and bare torso, embraced her and warned not to make a sound or he’ll kill her
•    April 14, 1988 morning: After Julita was through with washing the dishes, she proceeded to the bedroom to store away their, beddings.  Suddenly Adelmo appeared pulling her by the hand, embraced her from behind and held her breasts.  He pulled her to the bamboo bed, positioned himself on top of her and placed her hands behind her as he kissed her lips and neck.  She tried to avoid his kisses by moving her head from side to side.  As she was pinned, he managed to insert his right hand inside her t-shirt and bra and squeezed nipples.  Then, he tried to raise her balloon-like skirt with his right hand, inserted it inside her panty and while making up and down motions.  Adelm said: “Sige na, pagbigyan mo na ako.” She then cried out “Inay”. 
•    Eufemia Tria:  She peeped into their window which was just a few meters from where she was and there saw her daughter Julita lying flat on a bamboo bed with her skirt raised and Adelmo on top of Julita as her hands pinned down.  She then rushed to the room and found Adelmo hiding under the bamboo bed.  She thought of hacking him with a bolo but realized she couldn’t so she brought him to his parents’ house to tell them what happened.
•    Dr. Emmanuel Cortez-Asuncion: extent of injuries sustained by her and that the slight physical injuries could have been caused by attempted rape
•    Adelmo: He invited Julita as they were already becoming intimate to the room where they could not be seen by her mother.  But, her mother called her and went into the room.  Sensing this, he stood up and hid under the bed.
•    RTC: Attempted rape
•    CA: Affirmed

ISSUE: W/N there is attempted rape

HELD: NO. MODIFIED acts of lasciviousness
•    Under Article 6 of the Revised Penal Code, there is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance. 
•    In the crime of rape, penetration is an essential act of execution to produce the felony. Thus, for there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than his own spontaneous desistance, the penetration, however slight, is not completed.
•    There is no showing in this case that petitioner’s sexual organ had even touched complainant’s vagina nor any part of her body.
•    acts constitute acts of lasciviousness.  The elements of said crime are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done (a) by using force and intimidation or (b) when the offended party is deprived of reason or otherwise unconscious, or (c) when the offended party is under 12 years of age; and (3) that the offended party is another person of either sex.

Jurisprudence: G.R. No. 143838 May 9, 2002

FIRST DIVISION

G.R. No. 143838.  May 9, 2002

ADELMO PEREZ y AGUSTIN, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

KAPUNAN, J.:

This is a petition for review on certiorari seeking to reverse and set aside the Decision, dated December 16, 1999, of the Court of Appeals in CA-G.R. CR No. 19971 affirming the conviction of petitioner Adelmo Perez y Agustin for the crime of Attempted Rape.

The Information filed against petitioner with the Regional Trial Court, Branch 2 of Balanga, Bataan reads:

That on or about April 14, 1988 in Morong, Bataan, Philippines and within the jurisdiction of this Honorable Court, the said accused did then and there willfully, unlawfully and feloniously, by means of force and intimidation, commence the commission of the crime of rape upon Julita Tria y Balagao directly by overt acts, to wit:

That the said accused, without the permission of anyone, entered the room of Julita Tria and once inside, embraced and kissed her on the neck, held and mashed her breast and compelled her to lie down, and thereafter kissed her lips and neck and with the intent of having carnal knowledge with her, touched her sex organ and tried to remove her panties thereby commencing [t]he commission of the crime of Rape directly by overt acts but said accused did not accomplish his purpose, that is, to have a carnal knowledge with her, it was not because of his spontaneous and voluntary desistance but because the said Julita Tria succeeding in resisting his criminal attempt and also due to the timely arrival of her mother to the damage and prejudice of the said Julita Tria y Balagao.

CONTRARY TO LAW.[1]

At his arraignment, with the assistance of counsel, petitioner pleaded not guilty.  Trial ensued.

To buttress its case against petitioner, the prosecution presented the testimonies of Eufemia Tria, mother of the complainant, Julita Tria, the complainant, and Dr. Emmanuel Cortez-Asuncion.  As culled from the decision of the CA, these witnesses testified as follows:

Eufemia Tria, in her testimony, gave an account of the incident that took place in the morning of April 14, 1988.  She was then washing clothes outside their house when she heard someone cry “Inay”.  She then peeped into their window which was just a few meters from where she was and there saw her daughter Julita lying flat on a bamboo bed with her skirt raised.  She saw accused Adelmo on top of Julita with her hands pinned down.  As accused was kissing her daughter in the neck, his buttocks were moving in an up and down motion while her daughter was fighting back and struggling to break free.  Eufemia then rushed straight to the room where she found accused hiding under the bamboo bed.  She then ordered the accused to come out which he did.  She thought of hacking the accused with the bolo which she found hanging on the wall but realized that she could not do it and instead dragged the accused out of the house and brought him to his parents’ house to tell them what happened.

Complainant Julita Tria testified that in the morning of April 14, 1988, after she was through with washing the dishes, she proceeded to the bedroom to store away their, beddings.  Suddenly, out of nowhere, accused appeared pulled her by the hand, embraced her from behind and held her breasts.  At this juncture, he pulled her to the bamboo bed, positioned himself on top of her and placed her hands behind her as he kissed her lips and neck.  She tried to avoid his kisses by moving her head from side to side.  As she was pinned by accused’s vise-like grip, accused then managed to insert his right hand inside her t-shirt and bra and squeezed nipples.  Thereafter, he tried to raise her balloon-like skirt with his right hand, inserted it inside her panty and held her private part while making up and down motions.  Accused then retorted “Sige na, pagbigyan mo na ako.” It was at this point when she cried out “Inay”.  Shortly thereafter, her mother entered the room and found the accused under the bamboo bed.

Complainant further testified that it was not the first time that accused assaulted her.  On March 25, 1988, while she was in the kitchen doing the dishes, accused suddenly appeared at her back with unzipped shorts and bare torso, embraced her and warned her not to make a sound or else he would kill her.  He then jumped out of the window and fled.  She did not tell anybody about this incident for fear that accused will make good his promise.

Dr. Emmanuel Cortez-Asuncion who conducted the medical examination on the complainant, testified as to the extent of injuries sustained by her and that the slight physical injuries could have been caused by attempted rape (TSN, September 16, 1988).[2]

For its part, the defense presented as its witnesses Junar Perez and petitioner.  They testified as follows:

Junar Perez is a ten (10) year old grade IV honor pupil who at the time of the incident was on vacation at his grandmother’s place.  In the morning of April 14, 1988, he was playing with his cousins near the house of his Auntie Feming (Julita’s mother) when he got thirsty and asked for a drink in the latter’s house.  There he saw Julita and accused conversing while seated on a bench near the door.  He also saw Eufemia washing clothes a few meters away from Julita and the accused.  He did not hear any noise in the house.

Accused Adelmo Perez declared that he was in Julita’s house that morning of April 14, 1988 upon her prodding for him to come over as he would often do.  When Junar had left the house, he invited Julita to the room where they could not be seen by her mother, there they embraced and kissed, he then inserted his hand inside her clothes, held her breast and slowly laid her on the bamboo bed.  Shortly thereafter, her mother called Julita so she stood up but later returned and they again resumed embracing and kissing after which they laid down on the bamboo bed and he was able to place himself on top of her.  He sensed that someone had entered the house and so stood up and hid under the bed upon Julita’s advice.  He denied that the acts done were against Julita’s will.  In fact, he claimed that he and Julita were already becoming intimate.[3]

After the prosecution and the defense presented their respective evidence, the trial court rendered judgment finding petitioner guilty of attempted rape.  The dispositive portion of the trial court’s decision reads:

WHEREFORE, judgment is hereby rendered convicting the accused, Adelmo Perez y Agustin, of the crime of ATTEMPTED RAPE, the prosecution having proved his guilt beyond reasonable doubt.  Said accused is hereby sentenced to jail term of two (2) years, four (4) months and one (1) day of prision correccional as minimum to eight (8) years and one (1) day of prision mayor as maximum.  He shall be credited with time spent under detention.

SO ORDERED.[4]

Aggrieved, petitioner appealed to the CA.  The appellate court, finding the appeal to be unmeritorious, affirmed petitioner’s conviction.  The dispositive portion of the assailed decision reads:

WHEREFORE, the judgment herein appealed from is hereby AFFIRMED in toto.  Costs against appellant.

SO ORDERED.[5]

Petitioner now comes to this Court assailing the decision of the CA.  Petitioner raises the following issues:

I

WAS THE CRIME COMMITTED BY THE PETITIONER ATTEMPTED RAPE OR ACTS OF LASCIVIOUSNESS; and

II

DID THE PROSECUTION PRESENT THE QUANTUM OF PROOF NECESSARY TO ESTABLISH THE GUILT OF THE PETITIONER BEYOND REASONABLE DOUBT.

The petition is partly meritorious.  The issues shall be discussed jointly as they are interrelated.

To exculpate himself, petitioner impugns the credibility of the complainant.  Petitioner contradicts the complainant’s allegations as he (petitioner) insists that what transpired between them was a consensual act.

It is well settled in this jurisdiction that the determination of credibility of witnesses is properly within the domain of the trial court as it is in the best position to observe their demeanor and bodily movements.[6] The trial court in this case found the witnesses for the prosecution and their version of the incident more credible as it made these findings:

No woman would ordinarily complain to the police and concoct a story that an uncle attempted to rape her, or subject herself to medical examination of her private parts, unless righteous indignation compelled her.  This was particularly reinforced by the fact that she submitted herself thereto that afternoon of the same day, accompanied by her father and mother.

Julita’s and her mother’s accounts were clear, spontaneous, natural and credible as weighed against the flimsy excuse of the accused.

The physician admitted that the physical injuries suffered by Julita could have been caused by attempted rape.

Julita would not have shouted, “Inay” if she liked and consented to what her uncle was doing to her.  The intact hymen of Julita also disproves the accused’s declaration that they were “getting intimate.” He himself refused to call themselves lovers.

The intention to force Julita to submit to sexual intercourse has been proved by these pieces of evidence which have not been refuted or disproved: he suddenly kissed, embraced and dragged her to the bamboo bed where he continued to kiss her lips and neck; then squeezed her nipples and mashed her breast by inserting his hand in her panty and held her vagina, doing the up and down movement as he held her hands under her with his left hand; he unzipped his short pants; put out his penis while on top of her, as Julita struggled, kicked and pushed (after he [sic] hands were freed) to extricate herself.  The medical certificate found physical injuries in the neck and navel which could have been caused by blunt force, FORCE WOULD HAVE BEEN UNNECESSARY IF JULITA CONSENTED TO THESE ACTS.[7]

These findings of the trial court had been affirmed by the CA.  The Court is not inclined to deviate from these courts’ findings that petitioner, against the will of the complainant, performed sexual acts on the latter.  However, a careful review of the records of the case shows that the crime committed by petitioner was acts of lasciviousness not attempted rape.

Under Article 6 of the Revised Penal Code, there is an attempt when the offender commences the commission of a felony directly by overt acts, and does not perform all the acts of execution which should produce the felony by reason of some cause or accident other than his own spontaneous desistance.  In the crime of rape, penetration is an essential act of execution to produce the felony.[8] Thus, for there to be an attempted rape, the accused must have commenced the act of penetrating his sexual organ to the vagina of the victim but for some cause or accident other than his own spontaneous desistance, the penetration, however slight, is not completed.

There is no showing in this case that petitioner’s sexual organ had even touched complainant’s vagina nor any part of her body.  The complainant testified as follows:

Q:   After Adelmo Perez embraced you by the way you demonstrated, what else did Adelmo Perez do?

A:    He pulled me towards the bamboo bed (papag).

Q:   How did he pull you towards the bamboo bed?

A:    While he was embracing me.

Q:   He pulled you towards the wooden bed while he was holding you or embracing you in that position you are demonstrating?

A:    Yes, sir.

xxx

Q:   While you were sitting on the lap of the accused Adelmo Perez, what else did Adelmo Perez do to you?

A:    He laid me face up on the “papag” or on the wooden bed, sir.

Q:   Did he manage to lay you down on the wooden papag?

A     Yes, your honor.

xxx

Q:   How were you positioned in (sic) the wooden bed or “papag” after Adelmo Perez succeed in lying you down?

A:    I was lying face up your Honor.

xxx

Q:   And while you were in that position or “nakatihaya po ako,” what else did Adelmo Perez do?

A:    He placed himself on top of me, sir.

Q:   What was his position?

A:    He was lying face down on me.

Q:   When you said Adelmo Perez succeeded in lying down in the wooden papag, what was the position of your feet?

A:    They were hanging from the edge of the “papag” your honor.

xxx

Q:   And while your two hands were at your back, the way you demonstrated where was Adelmo Perez?

A:    He was on top of me, sir.

Q:   And what was he doing?

A:    He was kissing me on my lips and my neck, sir.

Q:   And while Adelmo Perez was kissing you, what did you do, if you did anything?

A:    I was trying to avoid his face sir by moving my face.

xxx

Q:   What exactly did you want to do with that movement?

A:    I was trying to avoid his face by moving my face, so that he could not kiss me and I was trying to extricate myself.

Q:   So what you were trying to avoid is his face?

A:    Yes, your honor.

Q:   You mean his right hand was free but it was not doing anything?

A:    It was moving your Honor.

Q:   But it was not doing anything aside from merely moving?

A:    His right hand was doing something.

Q:   Precisely you were asked.

A:    He inserted his right hand inside my T-shirt and inside my bra.

Q:   And after, when the right hand of Adelmo Perez was inside your bra, what did he do or what was his right hand doing inside your bra?

A:    He was mashing my nipple, sir.

Q:   Which nipples?

A:    Both nipples, Your Honor.

Q:   You mean your brassier was not detached but his hand was inside, between your brassier and the nipple?

A:    Yes, Your Honor.

Q:   While the right hand of Adelmo Perez was inside your bra and squeezing your nipple, what else did he do?

A:    He took his hand off from the inside of my T-shirt and he tried to raise my skirt, sir.

xxx

Q:   And while the accused Adelmo Perez tried to raise your skirt, what else did you do?

A:    He inserted his hand inside my panties and held my vagina, sir.

Q:   What did he use in holding your vagina?

A:    Right hand, sir.

Q:   And when he held your vagina, what did his right hand do with your vagina?

A:    He held it, sir.

xxx

Q:   What happened next?

A:    After he held my vagina he told me “Sige na, pagbigyan mo na ako” and that was the time I shouted.

xxx

Q:   What did you say when you shouted?

A:    I said “Inay” (The witness shouted).[9]

Petitioner’s acts of lying on top of the complainant, embracing and kissing her, mashing her breasts, inserting his hand inside her panty and touching her sexual organ, while admittedly obscene and detestable acts, do not constitute attempted rape absent any showing that petitioner actually commenced to force his penis into the complainant’s sexual organ.  Rather, these acts constitute acts of lasciviousness.  The elements of said crime are: (1) that the offender commits any act of lasciviousness or lewdness; (2) that it is done (a) by using force and intimidation or (b) when the offended party is deprived of reason or otherwise unconscious, or (c) when the offended party is under 12 years of age; and (3) that the offended party is another person of either sex.[10]

All these elements are present and have been sufficiently established in this case.  Petitioner clearly committed lewd acts against the complainant.  Moreover, petitioner employed force when he committed these acts on the complainant.  In fact, as found by the trial court, there were bruises on complainant’s neck and navel which belie petitioner’s claim that the complainant consented to these acts.

Although the information filed against petitioner was for attempted rape, he can be convicted of acts of lasciviousness because the crime of acts of lasciviousness is included in rape.[11]

The penalty for acts of lasciviousness is prision correccional.[12] There being no aggravating or mitigating circumstance alleged and proven in this case, the penalty prescribed by law shall be imposed in its medium period,[13] i.e., from 2 years, 4 months and 1 day to 4 years and 2 months.  Applying the Indeterminate Sentence Law, said penalty shall constitute the maximum term, while the minimum shall be within the range of the penalty next lower to that prescribed by the Revised Penal Code for the offense, i.e., arresto mayor or 1 month and 1 day to 6 months.  Petitioner is hereby sentenced to suffer the penalty of 6 months of arresto mayor, as minimum, to 4 years and 2 months of prision correccional, as maximum.

WHEREFORE, the Decision, dated December 16, 1999, of the Court of Appeals in CA-G.R. CR No. 19971 is hereby MODIFIED.  Petitioner Adelmo Perez y Agustin is found guilty beyond reasonable doubt of the crime of acts of lasciviousness, as defined and penalized under Article 336 of the Revised Penal Code, and sentenced to suffer the indeterminate penalty of 6 months of arresto mayor, as minimum, to 4 years and 2 months of prision correccional, as maximum.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Puno, Ynares-Santiago, and Austria-Martinez, JJ., concur.

Jurisprudence: G.R. NO. 146779

FIRST DIVISION

G.R. NO. 146779             January 23, 2006

RENATO S. GATBONTON, Petitioner,

vs.

NATIONAL LABOR RELATIONS COMMISSION, MAPUA INSTITUTE OF TECHNOLOGY and JOSE CALDERON, Respondents.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before the Court is a petition for review on certiorari under Rule 45 of the Rules of Court which seeks to set aside the Decision1 dated November 10, 2000 of the Court of Appeals (CA) in CA-G.R. SP No. 57470, affirming the decision of the National Labor Relations Commission (NLRC); and the CA Resolution dated January 16, 2001, denying the motion for reconsideration.2

Petitioner Renato S. Gatbonton is an associate professor of respondent Mapua Institute of Technology (MIT), Faculty of Civil Engineering. Some time in November 1998, a civil engineering student of respondent MIT filed a letter-complaint against petitioner for unfair/unjust grading system, sexual harassment and conduct unbecoming of an academician. Pending investigation of the complaint, respondent MIT, through its Committee on Decorum and Investigation placed petitioner under a 30-day preventive suspension effective January 11, 1999. The committee believed that petitioner’s continued stay during the investigation affects his performance as a faculty member, as well as the students’ learning; and that the suspension will allow petitioner to "prepare himself for the investigation and will prevent his influences to other members of the community."3

Thus, petitioner filed with the NLRC a complaint for illegal suspension, damages and attorney’s fees,4 docketed as NLRC-NCR Case No. 01-00388-99.

Petitioner questioned the validity of the administrative proceedings with the Regional Trial Court of Manila in a petition for certiorari but the case was terminated on May 21, 1999 when the parties entered into a compromise agreement wherein respondent MIT agreed to publish in the school organ the rules and regulations implementing Republic Act No. 7877 (R.A. No. 7877) or the Anti-Sexual Harassment Act; disregard the previous administrative proceedings and conduct anew an investigation on the charges against petitioner. Petitioner agreed to recognize the validity of the published rules and regulations, as well as the authority of respondent to investigate, hear and decide the administrative case against him.5

On June 18, 1999, the Labor Arbiter rendered a decision, the dispositive portion of which reads:

Wherefore, premises considered, the thirty day preventive suspension of complainant is hereby declared to be illegal. Accordingly, respondents are directed to pay his wages during the period of his preventive suspension.

The rest of complainant’s claims are dismissed.

SO ORDERED.6

Both respondents and petitioner filed their appeal from the Labor Arbiter’s Decision, with petitioner questioning the dismissal of his claim for damages. In a Decision dated September 30, 1999, the NLRC granted respondents’ appeal and set aside the Labor Arbiter’s decision. His motion for reconsideration having been denied by the NLRC on December 13, 1999, petitioner filed a special civil action for certiorari with the CA.

On November 10, 2000, the CA promulgated the assailed decision affirming the NLRC decision, the dispositive portion of which reads:

WHEREFORE, foregoing premises considered, the petition is hereby DENIED DUE COURSE and ORDERED DISMISSED, and the challenged decision and order of public respondent NLRC AFFIRMED.

SO ORDERED.7

Petitioner filed a motion for reconsideration which the CA denied in its Resolution dated January 16, 2001.

Hence, the present petition based on the following grounds:

A

THE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE NLRC WAS NOT GUILTY OF GRAVE ABUSE OF DISCRETION IN RENDERING BOTH THE APPEAL DECISION AND THE NLRC RESOLUTION.

B

THE COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE NLRC’S DISMISSAL OF PETITIONER’S CLAIM FOR DAMAGES.8

Petitioner finds fault in the CA’s decision, arguing that his preventive suspension does not find any justification in the Mapua Rules and Regulations considering that at the time of his preventive suspension on January 11, 1999, the rules have not been promulgated yet as it was published only on February 23, 1999. Petitioner also contests the lack of award of damages in his favor.9

The petition is partly meritorious.

Preventive suspension is a disciplinary measure for the protection of the company’s property pending investigation of any alleged malfeasance or misfeasance committed by the employee. The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers.10 However, when it is determined that there is no sufficient basis to justify an employee’s preventive suspension, the latter is entitled to the payment of salaries during the time of preventive suspension.11

R.A. No. 7877 imposed the duty on educational or training institutions to "promulgate rules and regulations in consultation with and jointly approved by the employees or students or trainees, through their duly designated representatives, prescribing the procedures for the investigation of sexual harassment cases and the administrative sanctions therefor."12 Petitioner’s preventive suspension was based on respondent MIT’s Rules and Regulations for the Implemention of the Anti-Sexual Harassment Act of 1995, or R.A. No. 7877. Rule II, Section 1 of the MIT Rules and Regulations provides:

Section 1. Preventive Suspension of Accused in Sexual Harassment Cases. Any member of the educational community may be placed immediately under preventive suspension during the pendency of the hearing of the charges of grave sexual harassment against him if the evidence of his guilt is strong and the school head is morally convinced that the continued stay of the accused during the period of investigation constitutes a distraction to the normal operations of the institution or poses a risk or danger to the life or property of the other members of the educational community.

It must be noted however, that respondent published said rules and regulations only on February 23, 1999. In Tañada vs. Tuvera,13 it was ruled that:

… all statutes, including those of local application and private laws, shall be published as a condition for their effectivity, which shall begin fifteen days after publication unless a different effectivity is fixed by the legislature.

Covered by this rule are presidential decrees and executive orders promulgated by the President in the exercise of legislative powers whenever the same are validly delegated by the legislature or, at present, directly conferred by the Constitution. Administrative rules and regulations must also be published if their purpose is to enforce or implement existing law pursuant also to a valid delegation.

Interpretative regulations and those merely internal in nature, that is, regulating only the personnel of the administrative agency and not the public, need not be published. Neither is publication required of the so-called letters of instructions issued by administrative superiors concerning the rules or guidelines to be followed by their subordinates in the performance of their duties.

…

We agree that the publication must be in full or it is no publication at all since its purpose is to inform the public of the contents of the laws. (Emphasis supplied)

The Mapua Rules is one of those issuances that should be published for its effectivity, since its purpose is to enforce and implement R.A. No. 7877, which is a law of general application.14 In fact, the Mapua Rules itself explicitly required publication of the rules for its effectivity, as provided in Section 3, Rule IV (Administrative Provisions), which states that "[T]hese Rules and Regulations to implement the Anti-Sexual Harassment Act of 1995 shall take effect fifteen (15) days after publication by the Committee." Thus, at the time of the imposition of petitioner’s preventive suspension on January 11, 1999, the Mapua Rules were not yet legally effective, and therefore the suspension had no legal basis.

Moreover, even assuming that the Mapua Rules are applicable, the Court finds that there is no sufficient basis to justify his preventive suspension. Under the Mapua Rules, an accused may be placed under preventive suspension during pendency of the hearing under any of the following circumstances:

(a) if the evidence of his guilt is strong and the school head is morally convinced that the continued stay of the accused during the period of investigation constitutes a distraction to the normal operations of the institution; or

(b) the accused poses a risk or danger to the life or property of the other members of the educational community.

In petitioner’s case, there is no indication that petitioner’s preventive suspension may be based on the foregoing circumstances. Committee Resolution No. 1 (Re: Preventive Suspension of Engr. Renato Gatbonton) passed by the Committee on Decorum and Investigation states the reasons for petitioner’s preventive suspension, to wit:

Whereas, the committee believe[s] that the continued stay of the respondent during the period of investigation,

1. Affects the respondent’s performance as a faculty member and laboratory head considering the psychological effects depression and/or emotional stress during investigation

2. Affects the student[’s] learning and other members of the Mapua Institute of Technology community.

Whereas, the committee believe[s] that this preventive suspension will allow the respondent to prepare himself for the investigation and will prevent his influences to other members of the community.15

Said resolution does not show that evidence of petitioner’s guilt is strong and that the school head is morally convinced that petitioner’s continued stay during the period of investigation constitutes a distraction to the normal operations of the institution; or that petitioner poses a risk or danger to the life or property of the other members of the educational community.

Even under the Labor Code, petitioner’s preventive suspension finds no valid justification. As provided in Section 8, Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code:

Sec. 8. Preventive Suspension. The employer may place the worker concerned under preventive suspension if his continued employment poses a serious threat to the life or property of the employer or of his co-workers.

As previously stated, there is nothing on record which shows that respondent MIT imposed the preventive suspension on petitioner as his continued employment poses a serious threat to the life or property of the employer or of his co-workers; therefore, his preventive suspension is not justified.16 Consequently, the payment of wages during his 30-day preventive suspension, i.e., from January 11, 1999 to February 10, 1999, is in order.

With regard to petitioner’s claim for damages, the Court finds the same to be without basis. While petitioner’s preventive suspension may have been unjustified, this does not automatically mean that he is entitled to moral or other damages. In Cocoland Development Corp. vs. NLRC,17 the Court ruled:

In Primero vs. Intermediate Appellate Court, this Court held that "… an award (of moral damages) cannot be justified solely upon the premise (otherwise sufficient for redress under the Labor Code) that the employer fired his employee without just cause or due process. Additional facts must be pleaded and proven to warrant the grant of moral damages under the Civil Code, these being, to repeat, that the act of dismissal was attended by bad faith or fraud, or was oppressive to labor, or done in a manner contrary to morals, good customs, or public policy; and of course, that social humiliation, wounded feelings, grave anxiety, etc., resulted therefrom." This was reiterated in Garcia vs. NLRC, where the Court added that exemplary damages may be awarded only if the dismissal was shown to have been effected in a wanton, oppressive or malevolent manner.

This the private respondent failed to do. Because no evidence was adduced to show that petitioner company acted in bad faith or in a wanton or fraudulent manner in dismissing the private respondent, the labor arbiter did not award any moral and exemplary damages in his decision. Respondent NLRC therefore had no factual or legal basis to award such damages in the exercise of its appellate jurisdiction. …

The records of this case are bereft of any evidence showing that respondent MIT acted in bad faith or in a wanton or fraudulent manner in preventively suspending petitioner, thus, the Labor Arbiter was correct in not awarding any damages in favor of petitioner.

WHEREFORE, the petition is PARTIALLY GRANTED. The Decision dated November 10, 2000 and Resolution dated January 16, 2001 of the Court of Appeals in CA-G.R. SP No. 57470 as well as the NLRC Decision dated September 30, 1999 together with its Resolution dated December 13, 1999, are hereby SET ASIDE and the Labor Arbiter’s Decision dated June 18, 1999 is REINSTATED.

SO ORDERED.

Jurisprudence: G.R. No. 80294-95

FIRST DIVISION

G.R. No. 80294-95 September 21, 1988

CATHOLIC VICAR APOSTOLIC OF THE MOUNTAIN PROVINCE, petitioner,
vs.
COURT OF APPEALS, HEIRS OF EGMIDIO OCTAVIANO AND JUAN VALDEZ, respondents.

Valdez, Ereso, Polido & Associates for petitioner.

Claustro, Claustro, Claustro Law Office collaborating counsel for petitioner.

Jaime G. de Leon for the Heirs of Egmidio Octaviano.

Cotabato Law Office for the Heirs of Juan Valdez.



GANCAYCO, J.:

The principal issue in this case is whether or not a decision of the Court of Appeals promulgated a long time ago can properly be considered res judicata by respondent Court of Appeals in the present two cases between petitioner and two private respondents.

Petitioner questions as allegedly erroneous the Decision dated August 31, 1987 of the Ninth Division of Respondent Court of Appeals 1 in CA-G.R. No. 05148 [Civil Case No. 3607 (419)] and CA-G.R. No. 05149 [Civil Case No. 3655 (429)], both for Recovery of Possession, which affirmed the Decision of the Honorable Nicodemo T. Ferrer, Judge of the Regional Trial Court of Baguio and Benguet in Civil Case No. 3607 (419) and Civil Case No. 3655 (429), with the dispositive portion as follows:

WHEREFORE, Judgment is hereby rendered ordering the defendant, Catholic Vicar Apostolic of the Mountain Province to return and surrender Lot 2 of Plan Psu-194357 to the plaintiffs. Heirs of Juan Valdez, and Lot 3 of the same Plan to the other set of plaintiffs, the Heirs of Egmidio Octaviano (Leonardo Valdez, et al.). For lack or insufficiency of evidence, the plaintiffs' claim or damages is hereby denied. Said defendant is ordered to pay costs. (p. 36, Rollo)

Respondent Court of Appeals, in affirming the trial court's decision, sustained the trial court's conclusions that the Decision of the Court of Appeals, dated May 4,1977 in CA-G.R. No. 38830-R, in the two cases affirmed by the Supreme Court, touched on the ownership of lots 2 and 3 in question; that the two lots were possessed by the predecessors-in-interest of private respondents under claim of ownership in good faith from 1906 to 1951; that petitioner had been in possession of the same lots as bailee in commodatum up to 1951, when petitioner repudiated the trust and when it applied for registration in 1962; that petitioner had just been in possession as owner for eleven years, hence there is no possibility of acquisitive prescription which requires 10 years possession with just title and 30 years of possession without; that the principle of res judicata on these findings by the Court of Appeals will bar a reopening of these questions of facts; and that those facts may no longer be altered.

Petitioner's motion for reconsideation of the respondent appellate court's Decision in the two aforementioned cases (CA G.R. No. CV-05418 and 05419) was denied.

The facts and background of these cases as narrated by the trail court are as follows —

... The documents and records presented reveal that the whole controversy started when the defendant Catholic Vicar Apostolic of the Mountain Province (VICAR for brevity) filed with the Court of First Instance of Baguio Benguet on September 5, 1962 an application for registration of title over Lots 1, 2, 3, and 4 in Psu-194357, situated at Poblacion Central, La Trinidad, Benguet, docketed as LRC N-91, said Lots being the sites of the Catholic Church building, convents, high school building, school gymnasium, school dormitories, social hall, stonewalls, etc. On March 22, 1963 the Heirs of Juan Valdez and the Heirs of Egmidio Octaviano filed their Answer/Opposition on Lots Nos. 2 and 3, respectively, asserting ownership and title thereto. After trial on the merits, the land registration court promulgated its Decision, dated November 17, 1965, confirming the registrable title of VICAR to Lots 1, 2, 3, and 4.

The Heirs of Juan Valdez (plaintiffs in the herein Civil Case No. 3655) and the Heirs of Egmidio Octaviano (plaintiffs in the herein Civil Case No. 3607) appealed the decision of the land registration court to the then Court of Appeals, docketed as CA-G.R. No. 38830-R. The Court of Appeals rendered its decision, dated May 9, 1977, reversing the decision of the land registration court and dismissing the VICAR's application as to Lots 2 and 3, the lots claimed by the two sets of oppositors in the land registration case (and two sets of plaintiffs in the two cases now at bar), the first lot being presently occupied by the convent and the second by the women's dormitory and the sister's convent.

On May 9, 1977, the Heirs of Octaviano filed a motion for reconsideration praying the Court of Appeals to order the registration of Lot 3 in the names of the Heirs of Egmidio Octaviano, and on May 17, 1977, the Heirs of Juan Valdez and Pacita Valdez filed their motion for reconsideration praying that both Lots 2 and 3 be ordered registered in the names of the Heirs of Juan Valdez and Pacita Valdez. On August 12,1977, the Court of Appeals denied the motion for reconsideration filed by the Heirs of Juan Valdez on the ground that there was "no sufficient merit to justify reconsideration one way or the other ...," and likewise denied that of the Heirs of Egmidio Octaviano.

Thereupon, the VICAR filed with the Supreme Court a petition for review on certiorari of the decision of the Court of Appeals dismissing his (its) application for registration of Lots 2 and 3, docketed as G.R. No. L-46832, entitled 'Catholic Vicar Apostolic of the Mountain Province vs. Court of Appeals and Heirs of Egmidio Octaviano.'

From the denial by the Court of Appeals of their motion for reconsideration the Heirs of Juan Valdez and Pacita Valdez, on September 8, 1977, filed with the Supreme Court a petition for review, docketed as G.R. No. L-46872, entitled, Heirs of Juan Valdez and Pacita Valdez vs. Court of Appeals, Vicar, Heirs of Egmidio Octaviano and Annable O. Valdez.

On January 13, 1978, the Supreme Court denied in a minute resolution both petitions (of VICAR on the one hand and the Heirs of Juan Valdez and Pacita Valdez on the other) for lack of merit. Upon the finality of both Supreme Court resolutions in G.R. No. L-46832 and G.R. No. L- 46872, the Heirs of Octaviano filed with the then Court of First Instance of Baguio, Branch II, a Motion For Execution of Judgment praying that the Heirs of Octaviano be placed in possession of Lot 3. The Court, presided over by Hon. Salvador J. Valdez, on December 7, 1978, denied the motion on the ground that the Court of Appeals decision in CA-G.R. No. 38870 did not grant the Heirs of Octaviano any affirmative relief.

On February 7, 1979, the Heirs of Octaviano filed with the Court of Appeals a petitioner for certiorari and mandamus, docketed as CA-G.R. No. 08890-R, entitled Heirs of Egmidio Octaviano vs. Hon. Salvador J. Valdez, Jr. and Vicar. In its decision dated May 16, 1979, the Court of Appeals dismissed the petition.

It was at that stage that the instant cases were filed. The Heirs of Egmidio Octaviano filed Civil Case No. 3607 (419) on July 24, 1979, for recovery of possession of Lot 3; and the Heirs of Juan Valdez filed Civil Case No. 3655 (429) on September 24, 1979, likewise for recovery of possession of Lot 2 (Decision, pp. 199-201, Orig. Rec.).

In Civil Case No. 3607 (419) trial was held. The plaintiffs Heirs of Egmidio Octaviano presented one (1) witness, Fructuoso Valdez, who testified on the alleged ownership of the land in question (Lot 3) by their predecessor-in-interest, Egmidio Octaviano (Exh. C ); his written demand (Exh. B—B-4 ) to defendant Vicar for the return of the land to them; and the reasonable rentals for the use of the land at P10,000.00 per month. On the other hand, defendant Vicar presented the Register of Deeds for the Province of Benguet, Atty. Nicanor Sison, who testified that the land in question is not covered by any title in the name of Egmidio Octaviano or any of the plaintiffs (Exh. 8). The defendant dispensed with the testimony of Mons.William Brasseur when the plaintiffs admitted that the witness if called to the witness stand, would testify that defendant Vicar has been in possession of Lot 3, for seventy-five (75) years continuously and peacefully and has constructed permanent structures thereon.

In Civil Case No. 3655, the parties admitting that the material facts are not in dispute, submitted the case on the sole issue of whether or not the decisions of the Court of Appeals and the Supreme Court touching on the ownership of Lot 2, which in effect declared the plaintiffs the owners of the land constitute res judicata.

In these two cases , the plaintiffs arque that the defendant Vicar is barred from setting up the defense of ownership and/or long and continuous possession of the two lots in question since this is barred by prior judgment of the Court of Appeals in CA-G.R. No. 038830-R under the principle of res judicata. Plaintiffs contend that the question of possession and ownership have already been determined by the Court of Appeals (Exh. C, Decision, CA-G.R. No. 038830-R) and affirmed by the Supreme Court (Exh. 1, Minute Resolution of the Supreme Court). On his part, defendant Vicar maintains that the principle of res judicata would not prevent them from litigating the issues of long possession and ownership because the dispositive portion of the prior judgment in CA-G.R. No. 038830-R merely dismissed their application for registration and titling of lots 2 and 3. Defendant Vicar contends that only the dispositive portion of the decision, and not its body, is the controlling pronouncement of the Court of Appeals. 2

The alleged errors committed by respondent Court of Appeals according to petitioner are as follows:

1. ERROR IN APPLYING LAW OF THE CASE AND RES JUDICATA;

2. ERROR IN FINDING THAT THE TRIAL COURT RULED THAT LOTS 2 AND 3 WERE ACQUIRED BY PURCHASE BUT WITHOUT DOCUMENTARY EVIDENCE PRESENTED;

3. ERROR IN FINDING THAT PETITIONERS' CLAIM IT PURCHASED LOTS 2 AND 3 FROM VALDEZ AND OCTAVIANO WAS AN IMPLIED ADMISSION THAT THE FORMER OWNERS WERE VALDEZ AND OCTAVIANO;

4. ERROR IN FINDING THAT IT WAS PREDECESSORS OF PRIVATE RESPONDENTS WHO WERE IN POSSESSION OF LOTS 2 AND 3 AT LEAST FROM 1906, AND NOT PETITIONER;

5. ERROR IN FINDING THAT VALDEZ AND OCTAVIANO HAD FREE PATENT APPLICATIONS AND THE PREDECESSORS OF PRIVATE RESPONDENTS ALREADY HAD FREE PATENT APPLICATIONS SINCE 1906;

6. ERROR IN FINDING THAT PETITIONER DECLARED LOTS 2 AND 3 ONLY IN 1951 AND JUST TITLE IS A PRIME NECESSITY UNDER ARTICLE 1134 IN RELATION TO ART. 1129 OF THE CIVIL CODE FOR ORDINARY ACQUISITIVE PRESCRIPTION OF 10 YEARS;

7. ERROR IN FINDING THAT THE DECISION OF THE COURT OF APPEALS IN CA G.R. NO. 038830 WAS AFFIRMED BY THE SUPREME COURT;

8. ERROR IN FINDING THAT THE DECISION IN CA G.R. NO. 038830 TOUCHED ON OWNERSHIP OF LOTS 2 AND 3 AND THAT PRIVATE RESPONDENTS AND THEIR PREDECESSORS WERE IN POSSESSION OF LOTS 2 AND 3 UNDER A CLAIM OF OWNERSHIP IN GOOD FAITH FROM 1906 TO 1951;

9. ERROR IN FINDING THAT PETITIONER HAD BEEN IN POSSESSION OF LOTS 2 AND 3 MERELY AS BAILEE BOR ROWER) IN COMMODATUM, A GRATUITOUS LOAN FOR USE;

10. ERROR IN FINDING THAT PETITIONER IS A POSSESSOR AND BUILDER IN GOOD FAITH WITHOUT RIGHTS OF RETENTION AND REIMBURSEMENT AND IS BARRED BY THE FINALITY AND CONCLUSIVENESS OF THE DECISION IN CA G.R. NO. 038830. 3

The petition is bereft of merit.

Petitioner questions the ruling of respondent Court of Appeals in CA-G.R. Nos. 05148 and 05149, when it clearly held that it was in agreement with the findings of the trial court that the Decision of the Court of Appeals dated May 4,1977 in CA-G.R. No. 38830-R, on the question of ownership of Lots 2 and 3, declared that the said Court of Appeals Decision CA-G.R. No. 38830-R) did not positively declare private respondents as owners of the land, neither was it declared that they were not owners of the land, but it held that the predecessors of private respondents were possessors of Lots 2 and 3, with claim of ownership in good faith from 1906 to 1951. Petitioner was in possession as borrower in commodatum up to 1951, when it repudiated the trust by declaring the properties in its name for taxation purposes. When petitioner applied for registration of Lots 2 and 3 in 1962, it had been in possession in concept of owner only for eleven years. Ordinary acquisitive prescription requires possession for ten years, but always with just title. Extraordinary acquisitive prescription requires 30 years. 4

On the above findings of facts supported by evidence and evaluated by the Court of Appeals in CA-G.R. No. 38830-R, affirmed by this Court, We see no error in respondent appellate court's ruling that said findings are res judicata between the parties. They can no longer be altered by presentation of evidence because those issues were resolved with finality a long time ago. To ignore the principle of res judicata would be to open the door to endless litigations by continuous determination of issues without end.

An examination of the Court of Appeals Decision dated May 4, 1977, First Division 5 in CA-G.R. No. 38830-R, shows that it reversed the trial court's Decision 6 finding petitioner to be entitled to register the lands in question under its ownership, on its evaluation of evidence and conclusion of facts.

The Court of Appeals found that petitioner did not meet the requirement of 30 years possession for acquisitive prescription over Lots 2 and 3. Neither did it satisfy the requirement of 10 years possession for ordinary acquisitive prescription because of the absence of just title. The appellate court did not believe the findings of the trial court that Lot 2 was acquired from Juan Valdez by purchase and Lot 3 was acquired also by purchase from Egmidio Octaviano by petitioner Vicar because there was absolutely no documentary evidence to support the same and the alleged purchases were never mentioned in the application for registration.

By the very admission of petitioner Vicar, Lots 2 and 3 were owned by Valdez and Octaviano. Both Valdez and Octaviano had Free Patent Application for those lots since 1906. The predecessors of private respondents, not petitioner Vicar, were in possession of the questioned lots since 1906.

There is evidence that petitioner Vicar occupied Lots 1 and 4, which are not in question, but not Lots 2 and 3, because the buildings standing thereon were only constructed after liberation in 1945. Petitioner Vicar only declared Lots 2 and 3 for taxation purposes in 1951. The improvements oil Lots 1, 2, 3, 4 were paid for by the Bishop but said Bishop was appointed only in 1947, the church was constructed only in 1951 and the new convent only 2 years before the trial in 1963.

When petitioner Vicar was notified of the oppositor's claims, the parish priest offered to buy the lot from Fructuoso Valdez. Lots 2 and 3 were surveyed by request of petitioner Vicar only in 1962.

Private respondents were able to prove that their predecessors' house was borrowed by petitioner Vicar after the church and the convent were destroyed. They never asked for the return of the house, but when they allowed its free use, they became bailors in commodatum and the petitioner the bailee. The bailees' failure to return the subject matter of commodatum to the bailor did not mean adverse possession on the part of the borrower. The bailee held in trust the property subject matter of commodatum. The adverse claim of petitioner came only in 1951 when it declared the lots for taxation purposes. The action of petitioner Vicar by such adverse claim could not ripen into title by way of ordinary acquisitive prescription because of the absence of just title.

The Court of Appeals found that the predecessors-in-interest and private respondents were possessors under claim of ownership in good faith from 1906; that petitioner Vicar was only a bailee in commodatum; and that the adverse claim and repudiation of trust came only in 1951.

We find no reason to disregard or reverse the ruling of the Court of Appeals in CA-G.R. No. 38830-R. Its findings of fact have become incontestible. This Court declined to review said decision, thereby in effect, affirming it. It has become final and executory a long time ago.

Respondent appellate court did not commit any reversible error, much less grave abuse of discretion, when it held that the Decision of the Court of Appeals in CA-G.R. No. 38830-R is governing, under the principle of res judicata, hence the rule, in the present cases CA-G.R. No. 05148 and CA-G.R. No. 05149. The facts as supported by evidence established in that decision may no longer be altered.

WHEREFORE AND BY REASON OF THE FOREGOING, this petition is DENIED for lack of merit, the Decision dated Aug. 31, 1987 in CA-G.R. Nos. 05148 and 05149, by respondent Court of Appeals is AFFIRMED, with costs against petitioner.

SO ORDERED.

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



Footnotes

1 Associate Justices Conrado T. Limcaoco, Jose C. Campos, Jr. and Gloria C. Paras.

2 Decision in CA-G.R. No. CV Nos. 05148 and 05149 dated August 31, 1987; pp. 11 2-117, Rollo.

3 Pp. 5-15, Petition; pp. 6-17, Rollo.

4 Arts. 1134 and 1129, Civil Code.

5 Presiding Justice Magno S. Gatmaitan, Associate Justices Pacifico P. de Castro and Samuel Reyes.

6 Land Reg. No. N-91, LRC Rec. No. N-22991 of the then C.F.I. of Baguio City.

Jurisprudence: G.R. No. 123486

FIRST DIVISION

G.R. No. 123486           August 12, 1999

EUGENIA RAMONAL CODOY, and MANUEL RAMONAL, petitioners,

vs.

EVANGELINE R. CALUGAY, JOSEPHINE SALCEDO, and UEFEMIA PATIGAS, respondents.

PARDO, J.:

Before us is a petition for review on certiorari of the decision of the Court of Appeals1 and its resolution denying reconsideration, ruling:

Upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the authenticity of testators holographic will has been established and the handwriting and signature therein (exhibit S) are hers, enough to probate said will. Reversal of the judgment appealed from and the probate of the holographic will in question be called for. The rule is that after plaintiff has completed presentation of his evidence and the defendant files a motion for judgment on demurrer to evidence on the ground that upon the facts and the law plaintiff has shown no right to relief, if the motion is granted and the order to dismissal is reversed on appeal, the movant loses his right to present evidence in his behalf (Sec, 1 Rule 35 Revised Rules of Court). Judgment may, therefore, be rendered for appellant in the instant case.

Wherefore, the order appealed from is REVERSED and judgment rendered allowing the probate of the holographic will of the testator Matilde Seño Vda. de Ramonal.2

The facts are as follows:

On April 6, 1990, Evangeline Calugay, Josephine Salcedo and Eufemia Patigas, devisees and legatees of the holographic will of the deceased Matilde Seño Vda. de Ramonal, filed with the Regional Trial Court, Misamis Oriental, Branch 18, a petition3 for probate of the holographic will of the deceased, who died on January 16, 1990.

In the petition, respondents claimed that the deceased Matilde Seño Vda. de Ramonal, was of sound and disposing mind when she executed the will on August 30, 1978, that there was no fraud, undue influence, and duress employed in the person of the testator, and will was written voluntarily.

The assessed value of the decedent's property, including all real and personal property was about P400,000.00, at the time of her death.4

On June 28, 1990, Eugenia Ramonal Codoy and Manuel Ramonal filed an opposition5 to the petition for probate, alleging that the holographic will was a forgery and that the same is even illegible. This gives an impression that a "third hand" of an interested party other than the "true hand" of Matilde Seño Vda. de Ramonal executed the holographic will.

Petitioners argued that the repeated dates incorporated or appearing on will after every disposition is out of the ordinary. If the deceased was the one who executed the will, and was not forced, the dates and the signature should appear at the bottom after the dispositions, as regularly done and not after every disposition. And assuming that the holographic will is in the handwriting of the deceased, it was procured by undue and improper pressure and influence on the part of the beneficiaries, or through fraud and trickery.1âwphi1.nêt

Respondents presented six (6) witnesses and various documentary evidence. Petitioners instead of presenting their evidence, filed a demurrer6 to evidence, claiming that respondents failed to establish sufficient factual and legal basis for the probate of the holographic will of the deceased Matilde Seño Vda. de Ramonal.

On November 26, 1990, the lower Court issued an order, the dispositive portion of which reads:

WHEREFORE, in view of the foregoing consideration, the Demurrer to Evidence having being well taken, same is granted, and the petition for probate of the document (Exhibit "S") on the purported Holographic Will of the late Matilde Seño Vda. de Ramonal, is denied for insufficiency of evidence and lack of merits.7

On December 12, 1990, respondents filed a notice of appeal,8 and in support of their appeal, the respondents once again reiterated the testimony of the following witnesses, namely: (1) Augusto Neri; (2) Generosa Senon; (3) Matilde Ramonal Binanay; (4) Teresita Vedad; (5) Fiscal Rodolfo Waga; and (6) Evangeline Calugay.

To have a clear understanding of the testimonies of the witnesses, we recite an account of their testimonies.

Augusto Neri, Clerk of Court, Court of First Instance of Misamis Oriental, where the special proceedings for the probate of the holographic will of the deceased was filed. He produced and identified the records of the case. The documents presented bear the signature of the deceased, Matilde Seño Vda. de Ramonal, for the purpose of laying the basis for comparison of the handwriting of the testatrix, with the writing treated or admitted as genuine by the party against whom the evidence is offered.

Generosa Senon, election registrar of Cagayan de Oro, was presented to produced and identify the voter's affidavit of the decedent. However, the voters' affidavit was not produced for the same was already destroyed and no longer available.

Matilde Ramonal Binanay, testified that the deceased Matilde Seño Vda. de Ramonal was her aunt, and that after the death of Matilde's husband, the latter lived with her in her parent's house for eleven (11) years from 1958 to 1969. During those eleven (11) years of close association the deceased, she acquired familiarity with her signature and handwriting as she used to accompany her (deceased Matilde Seño Vda. de Ramonal) in collecting rentals from her various tenants of commercial buildings, and deceased always issued receipts. In addition to this, she (witness Matilde Binanay) assisted the deceased in posting the records of the accounts, and carried personal letters of the deceased to her creditors.

Matilde Ramonal Binanay further testified that at the time of the death of Matilde Vda. de Ramonal, she left a holographic will dated August 30, 1978, which was personally and entirely written, dated and signed, by the deceased and that all the dispositions therein, the dates, and the signatures in said will, were that of the deceased.

Fiscal Rodolfo Waga testified that before he was appointed City Fiscal of Cagayan de Oro, he was a practicing lawyer, and handled all the pleadings and documents signed by the deceased in connection with the proceedings of her late husband, as a result of which he is familiar with the handwriting of the latter. He testified that the signature appearing in the holographic will was similar to that of the deceased, Matilde Seño Vda. de Ramonal, but he can not be sure.

The fifth witness presented was Mrs. Teresita Vedad, an employee of the Department of Environment and Natural Resources, Region 10. She testified that she processed the application of the deceased for pasture permit and was familiar with the signature of the deceased, since the signed documents in her presence, when the latter was applying for pasture permit.

Finally, Evangeline Calugay, one of the respondents, testified that she had lived with the deceased since birth, and was in fact adopted by the latter. That after a long period of time she became familiar with the signature of the deceased. She testified that the signature appearing in the holographic will is the true and genuine signature of Matilde Seño Vda. de Ramonal.

The holographic will which was written in Visayan, is translated in English as follows:

Instruction

August 30, 1978

1. My share at Cogon, Raminal Street, for Evangeline Calugay.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

2. Josefina Salcedo must be given 1,500 square meters at Pinikan Street.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

3. My jewelry's shall be divided among:

1. Eufemia Patigas

2. Josefina Salcedo

3. Evangeline Calugay

(Sgd) Matilde Vda de Ramonal

August 30, 1978

4. I bequeath my one (1) hectare land at Mandumol, Indahag to Evangeline R. Calugay

(Sgd) Matilde Vda de Ramonal

August 30, 1978

5. Give the 2,500 Square Meters at Sta. Cruz Ramonal Village in favor of Evangeline R. Calugay, Helen must continue with the Sta. Cruz, once I am no longer around.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

6. Bury me where my husband Justo is ever buried.

(Sgd) Matilde Vda de Ramonal

August 30, 1978

Gene and Manuel:

Follow my instruction in order that I will rest peacefully.

Mama

Matilde Vda de Ramonal

On October 9, 1995, the Court of Appeals, rendered decision9 ruling that the appeal was meritorious. Citing the decision in the case of Azaola vs. Singson, 109 Phil. 102, penned by Mr. Justice J. B. L. Reyes, a recognized authority in civil law, the Court of Appeals held:

. . . even if the genuineness of the holographic will were contested, we are of the opinion that Article 811 of our present civil code can not be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of having the probate denied. Since no witness may have been present at the execution of the holographic will, none being required by law (art. 810, new civil code), it becomes obvious that the existence of witnesses possessing the requisite qualifications is a matter beyond the control of the proponent. For it is not merely a question of finding and producing any three witnesses; they must be witnesses "who know the handwriting and signature of the testator" and who can declare (truthfully, of course, even if the law does not express) "that the will and the signature are in the handwriting of the testator." There may be no available witness acquainted with the testator's hand; or even if so familiarized, the witness maybe unwilling to give a positive opinion. Compliance with the rule of paragraph 1 of article 811 may thus become an impossibility. That is evidently the reason why the second paragraph of article 811 prescribes that —

in the absence of any competent witness referred to in the preceding paragraph, and if the court deems it necessary, expert testimony may be resorted to.

As can be see, the law foresees, the possibility that no qualified witness ma be found (or what amounts to the same thing, that no competent witness may be willing to testify to the authenticity of the will), and provides for resort to expert evidence to supply the deficiency.

It may be true that the rule of this article (requiring that three witnesses be presented if the will is contested and only one if no contest is had) was derived from the rule established for ordinary testaments (CF Cabang vs. Delfianado, 45 PHIL 291; Tolentino v. Francisco, 57 PHIL 742). But it can not be ignored that the requirement can be considered mandatory only in case of ordinary testaments, precisely because the presence of at least three witnesses at the execution of ordinary wills is made by law essential to their validity (Art. 805). Where the will is holographic, no witness need be present (art. 10), and the rule requiring production of three witnesses must be deemed merely permissive if absurd results are to be avoided.

Again, under Art. 811, the resort to expert evidence is conditioned by the words "if the court deem it necessary", which reveal that what the law deems essential is that the court should be convinced of the will's authenticity. Where the prescribed number of witnesses is produced and the court is convinced by their testimony that the will is genuine, it may consider it unnecessary to call for expert evidence. On the other hand, if no competent witness is available, or none of those produced is convincing, the court may still, and in fact it should resort to handwriting experts. The duty of the court, in fine, is to exhaust all available lines of inquiry, for the state is as much interested as the proponent that the true intention of the testator be carried into effect.

Paraphrasing Azaola vs. Singson, even if the genuineness of the holographic will were contested, Article 811 of the civil code cannot be interpreted as to require the compulsory presentation of three witnesses to identify the handwriting of the testator, under penalty of the having the probate denied. No witness need be present in the execution of the holographic will. And the rule requiring the production of three witnesses is merely permissive. What the law deems essential is that the court is convinced of the authenticity of the will. Its duty is to exhaust all available lines of inquiry, for the state is as much interested in the proponent that the true intention of the testator be carried into effect. And because the law leaves it to the trial court to decide if experts are still needed, no unfavorable inference can be drawn from a party's failure to offer expert evidence, until and unless the court expresses dissatisfaction with the testimony of the lay witnesses.10

According to the Court of Appeals, Evangeline Calugay, Matilde Ramonal Binanay and other witnesses definitely and in no uncertain terms testified that the handwriting and signature in the holographic will were those of the testator herself.

Thus, upon the unrebutted testimony of appellant Evangeline Calugay and witness Matilde Ramonal Binanay, the Court of Appeals sustained the authenticity of the holographic will and the handwriting and signature therein, and allowed the will to probate.

Hence, this petition.

The petitioners raise the following issues:

(1) Whether or not the ruling of the case of Azaola vs. Singson, 109 Phil. 102, relied upon by the respondent Court of Appeals, was applicable to the case.

(2) Whether or not the Court of Appeals erred in holding that private respondents had been able to present credible evidence to that the date, text, and signature on the holographic will written entirely in the hand of the testatrix.

(3) Whether or not the Court of Appeals erred in not analyzing the signatures in the holographic will of Matilde Seño Vda. de Ramonal.

In this petition, the petitioners ask whether the provisions of Article 811 of the Civil Code are permissive or mandatory. The article provides, as a requirement for the probate of a contested holographic will, that at least three witnesses explicitly declare that the signature in the will is the genuine signature of the testator.1âwphi1.nêt

We are convinced, based on the language used, that Article 811 of the Civil Code is mandatory. The word "shall" connotes a mandatory order. We have ruled that "shall" in a statute commonly denotes an imperative obligation and is inconsistent with the idea of discretion and that the presumption is that the word "shall," when used in a statute is mandatory.11

Laws are enacted to achieve a goal intended and to guide against an evil or mischief that aims to prevent. In the case at bar, the goal to achieve is to give effect to the wishes of the deceased and the evil to be prevented is the possibility that unscrupulous individuals who for their benefit will employ means to defeat the wishes of the testator.

So, we believe that the paramount consideration in the present petition is to determine the true intent of the deceased. An exhaustive and objective consideration of the evidence is imperative to establish the true intent of the testator.

It will be noted that not all the witnesses presented by the respondents testified explicitly that they were familiar with the handwriting of testator. In the case of Augusto Neri, clerk of court, Court of First Instance, Misamis Oriental, he merely identified the record of Special Proceedings No. 427 before said court. He was not presented to declare explicitly that the signature appearing in the holographic was that of the deceased.

Generosa E. Senon, the election registrar of Cagayan de Oro City, was presented to identify the signature of the deceased in the voter's affidavit, which was not even produced as it was no longer available.

Matilde Ramonal Binanay, on the other hand, testified that:

Q.   And you said for eleven (11) years Matilde Vda de Ramonal resided with your parents at Pinikitan, Cagayan de Oro City. Would you tell the court what was your occupation or how did Matilde Vda de Ramonal keep herself busy that time?

A.   Collecting rentals.

Q.   From where?

A.   From the land rentals and commercial buildings at Pabayo-Gomez streets.12

x x x           x x x           x x x

Q.   Who sometime accompany her?

A.   I sometimes accompany her.

Q.   In collecting rentals does she issue receipts?

A.   Yes, sir.13

x x x           x x x           x x x

Q.   Showing to you the receipt dated 23 October 1979, is this the one you are referring to as one of the receipts which she issued to them?

A.   Yes, sir.

Q.   Now there is that signature of Matilde vda. De Ramonal, whose signature is that Mrs. Binanay?

A.   Matilde vda. De Ramonal.

Q.   Why do you say that is the signature of Matilde Vda. De Ramonal?

A.   I am familiar with her signature.

Q.   Now, you tell the court Mrs. Binanay, whether you know Matilde vda de Ramonal kept records of the accounts of her tenants?

A.   Yes, sir.

Q.   Why do you say so?

A.   Because we sometimes post a record of accounts in behalf of Matilde Vda. De Ramonal.

Q.   How is this record of accounts made? How is this reflected?

A.   In handwritten.14

x x x           x x x           x x x

Q.   In addition to collection of rentals, posting records of accounts of tenants and deed of sale which you said what else did you do to acquire familiarity of the signature of Matilde Vda De Ramonal?

A.   Posting records.

Q.   Aside from that?

A.   Carrying letters.

Q.   Letters of whom?

A.   Matilde.

Q.   To whom?

A.   To her creditors.15

x x x           x x x           x x x

Q.   You testified that at time of her death she left a will. I am showing to you a document with its title "tugon" is this the document you are referring to?

A.   Yes, sir.

Q.   Showing to you this exhibit "S", there is that handwritten "tugon", whose handwriting is this?

A.   My Aunt.

Q.   Why do you say this is the handwriting of your aunt?

A.   Because I am familiar with her signature.16

What Ms. Binanay saw were pre-prepared receipts and letters of the deceased, which she either mailed or gave to her tenants. She did not declare that she saw the deceased sign a document or write a note.

Further, during the cross-examination, the counsel for petitioners elicited the fact that the will was not found in the personal belongings of the deceased but was in the possession of Ms. Binanay. She testified that:

Q.   Mrs. Binanay, when you were asked by counsel for the petitioners if the late Matilde Seno vda de Ramonal left a will you said, yes?

A.   Yes, sir.

Q.   Who was in possession of that will?

A.   I.

Q.   Since when did you have the possession of the will?

A.   It was in my mother's possession.

Q.   So, it was not in your possession?

A.   Sorry, yes.

Q.   And when did you come into possession since as you said this was originally in the possession of your mother?

A.   1985.17

x x x           x x x           x x x

Q.   Now, Mrs. Binanay was there any particular reason why your mother left that will to you and therefore you have that in your possession?

A.   It was not given to me by my mother, I took that in the aparador when she died.

Q.   After taking that document you kept it with you?

A.   I presented it to the fiscal.

Q.   For what purpose?

A.   Just to seek advice.

Q.   Advice of what?

A.   About the will.18

In her testimony it was also evident that Ms. Binanay kept the fact about the will from petitioners, the legally adopted children of the deceased. Such actions put in issue her motive of keeping the will a secret to petitioners and revealing it only after the death of Matilde Seño Vda. de Ramonal.

In the testimony of Ms. Binanay, the following were established:

Q.   Now, in 1978 Matilde Seno Vda de Ramonal was not yet a sickly person is that correct?

A.   Yes, sir.

Q.   She was up and about and was still uprightly and she could walk agilely and she could go to her building to collect rentals, is that correct?

A.   Yes, sir.19

x x x           x x x           x x x

Q.   Now, let us go to the third signature of Matilde Ramonal. Do you know that there are retracings in the word Vda.?

A.   Yes, a little. The letter L is continuous.

Q.   And also in Matilde the letter L is continued to letter D?

A.   Yes, sir.

Q.   Again the third signature of Matilde Vda de Ramonal the letter L in Matilde is continued towards letter D.

A.   Yes, sir.

Q.   And there is a retracing in the word Vda.?

A.   Yes, sir.20

x x x           x x x           x x x

Q.   Now, that was 1979, remember one year after the alleged holographic will. Now, you identified a document marked as Exhibit R. This is dated January 8, 1978 which is only about eight months from August 30, 1978. Do you notice that the signature Matilde Vda de Ramonal is beautifully written and legible?

A.   Yes, sir the handwriting shows that she was very exhausted.

Q.   You just say that she was very exhausted while that in 1978 she was healthy was not sickly and she was agile. Now, you said she was exhausted?

A.   In writing.

Q.   How did you know that she was exhausted when you were not present and you just tried to explain yourself out because of the apparent inconsistencies?

A.   That was I think. (sic).

Q.   Now, you already observed this signature dated 1978, the same year as the alleged holographic will. In exhibit I, you will notice that there is no retracing; there is no hesitancy and the signature was written on a fluid movement. . . . And in fact, the name Eufemia R. Patigas here refers to one of the petitioners?

A.   Yes, sir.

Q.   You will also notice Mrs. Binanay that it is not only with the questioned signature appearing in the alleged holographic will marked as Exhibit X but in the handwriting themselves, here you will notice the hesitancy and tremors, do you notice that?

A.   Yes, sir.21

Evangeline Calugay declared that the holographic will was written, dated and signed in the handwriting of the testator. She testified that:

Q.   You testified that you stayed with the house of the spouses Matilde and Justo Ramonal for the period of 22 years. Could you tell the court the services if any which you rendered to Matilde Ramonal?

A.   During my stay I used to go with her to the church, to market and then to her transactions.

Q.   What else? What services that you rendered?

A.   After my college days I assisted her in going to the bank, paying taxes and to her lawyer.

Q.   What was your purpose of going to her lawyer?

A.   I used to be her personal driver.

Q.   In the course of your stay for 22 years did you acquire familiarity of the handwriting of Matilde Vda de Ramonal?

A.   Yes, sir.

Q.   How come that you acquired familiarity?

A.   Because I lived with her since birth.22

x x x           x x x           x x x

Q.   Now, I am showing to you Exhibit S which is captioned "tugon" dated Agosto 30, 1978 there is a signature here below item No. 1, will you tell this court whose signature is this?

A.   Yes, sir, that is her signature.

Q.   Why do you say that is her signature?

A.   I am familiar with her signature.23

So, the only reason that Evangeline can give as to why she was familiar with the handwriting of the deceased was because she lived with her since birth. She never declared that she saw the deceased write a note or sign a document.

The former lawyer of the deceased, Fiscal Waga, testified that:

Q.   Do you know Matilde Vda de Ramonal?

A.   Yes, sir I know her because she is my godmother the husband is my godfather. Actually I am related to the husband by consanguinity.

Q.   Can you tell the name of the husband?

A.   The late husband is Justo Ramonal.24

x x x           x x x           x x x

Q.   Can you tell this court whether the spouses Justo Ramonal and Matilde Ramonal have legitimate children?

A.   As far as I know they have no legitimate children.25

x x x           x x x           x x x

Q.   You said after becoming a lawyer you practice your profession? Where?

A.   Here in Cagayan de Oro City.

Q.   Do you have services rendered with the deceased Matilde vda de Ramonal?

A.   I assisted her in terminating the partition, of properties.

Q.   When you said assisted, you acted as her counsel? Any sort of counsel as in what case is that, Fiscal?

A.   It is about the project partition to terminate the property, which was under the court before.26

x x x           x x x           x x x

Q.   Appearing in special proceeding no. 427 is the amended inventory which is marked as exhibit N of the estate of Justo Ramonal and there appears a signature over the type written word Matilde vda de Ramonal, whose signature is this?

A.   That is the signature of Matilde Vda de Ramonal.

Q.   Also in exhibit n-3, whose signature is this?

A.   This one here that is the signature of Mrs. Matilde vda de Ramonal.27

x x x           x x x           x x x

Q.   Aside from attending as counsel in that Special Proceeding Case No. 427 what were the other assistance wherein you were rendering professional service to the deceased Matilde Vda de Ramonal?

A.   I can not remember if I have assisted her in other matters but if there are documents to show that I have assisted then I can recall.28

x x x           x x x           x x x

Q.   Now, I am showing to you exhibit S which is titled "tugon", kindly go over this document, Fiscal Waga and tell the court whether you are familiar with the handwriting contained in that document marked as exhibit "S"?

A.   I am not familiar with the handwriting.

Q.   This one, Matilde Vda de Ramonal, whose signature is this?

A.   I think this signature here it seems to be the signature of Mrs. Matilde vda de Ramonal.

Q.   Now, in item No. 2 there is that signature here of Matilde Vda de Ramonal, can you tell the court whose signature is this?

A.   Well, that is similar to that signature appearing in the project of partition.

Q.   Also in item no. 3 there is that signature Matilde Vda de Ramonal, can you tell the court whose signature is that?

A.   As I said, this signature also seems to be the signature of Matilde vda de Ramonal.

Q.   Why do you say that?

A.   Because there is a similarity in the way it is being written.

Q.   How about this signature in item no. 4, can you tell the court whose signature is this?

A.   The same is true with the signature in item no. 4. It seems that they are similar.29

x x x           x x x           x x x

Q.   Mr. Prosecutor, I heard you when you said that the signature of Matilde Vda de Ramonal Appearing in exhibit S seems to be the signature of Matilde vda de Ramonal?

A.   Yes, it is similar to the project of partition.

Q.   So you are not definite that this is the signature of Matilde vda de Ramonal. You are merely supposing that it seems to be her signature because it is similar to the signature of the project of partition which you have made?

A.   That is true.30

From the testimonies of these witnesses, the Court of Appeals allowed the will to probate and disregard the requirement of three witnesses in case of contested holographic will, citing the decision in Azaola vs. Singson,31 ruling that the requirement is merely directory and not mandatory.

In the case of Ajero vs. Court of Appeals,32 we said that "the object of the solemnities surrounding the execution of wills is to close the door against bad faith and fraud, to avoid substitution of wills and testaments and to guaranty their truth and authenticity. Therefore, the laws on this subject should be interpreted in such a way as to attain these primordial ends. But on the other hand, also one must not lose sight of the fact that it is not the object of the law to restrain and curtail the exercise of the right to make a will.

However, we cannot eliminate the possibility of a false document being adjudged as the will of the testator, which is why if the holographic will is contested, that law requires three witnesses to declare that the will was in the handwriting of the deceased.

The will was found not in the personal belongings of the deceased but with one of the respondents, who kept it even before the death of the deceased. In the testimony of Ms. Binanay, she revealed that the will was in her possession as early as 1985, or five years before the death of the deceased.

There was no opportunity for an expert to compare the signature and the handwriting of the deceased with other documents signed and executed by her during her lifetime. The only chance at comparison was during the cross-examination of Ms. Binanay when the lawyer of petitioners asked Ms. Binanay to compare the documents which contained the signature of the deceased with that of the holographic will and she is not a handwriting expert. Even the former lawyer of the deceased expressed doubts as to the authenticity of the signature in the holographic will.

A visual examination of the holographic will convince us that the strokes are different when compared with other documents written by the testator. The signature of the testator in some of the disposition is not readable. There were uneven strokes, retracing and erasures on the will.

Comparing the signature in the holographic will dated August 30, 1978,33 and the signatures in several documents such as the application letter for pasture permit dated December 30, 1980,34 and a letter dated June 16, 1978,35 the strokes are different. In the letters, there are continuous flows of the strokes, evidencing that there is no hesitation in writing unlike that of the holographic will. We, therefore, cannot be certain that ruling holographic will was in the handwriting by the deceased.

IN VIEW WHEREOF, the decision appealed from is SET ASIDE. The records are ordered remanded to the court of origin with instructions to allow petitioners to adduce evidence in support of their opposition to the probate of the holographic will of the deceased Matilde Seño vda. de Ramonal.1âwphi1.nêt

No costs.

SO ORDERED.

Davide, Jr., C.J., Puno, Kapunan and Ynares-Santiago, JJ., concur.