cases torts go vii. civil liability arising from crime

9/15/15, 9:06 PMSUPREME COURT REPORTS ANNOTATED VOLUME 371

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72 SUPREME COURT REPORTS ANNOTATED

DMPI Employees Credit Cooperative, Inc. vs. Velez

G.R. No. 129282. November 29, 2001.*

DMPI EMPLOYEES CREDIT COOPERATIVE, INC.,(DMPI-ECCI), petitioner, vs. HON. ALEJANDRO M.VELEZ, as Presiding Judge of the RTC, Misamis Oriental,Br. 20, and ERIBERTA VILLEGAS, respondents.

Remedial Law; Civil Procedure; Forum-Shopping; Circular No.

28-91 was revised on February 8, 1994 by extending the requirement

to all initiatory pleadings filed in all courts and quasi-judicial

agencies other than the Supreme Court and the Court of Appeals.·On the first issue, Circular No. 28-91 of the Supreme Courtrequires a certificate of non-forum shopping to be attached topetitions filed before the Supreme Court and the Court of Appeals.This circular was revised on February 8, 1994 by extending therequirement to all initiatory pleadings filed in all courts and quasi-judicial agencies other than the Supreme Court and the Court ofAppeals.

_______________

* FIRST DIVISION.

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VOL. 371, NOVEMBER 29, 2001 73


Same; Criminal Procedure; Actions; Under the present rule,

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only the civil liability arising from the offense charged is deemed

instituted with the criminal action unless the offended party waives

the civil action, reserves his right to institute it separately, or

institutes the civil action prior to the criminal action.·Under thepresent rule, only the civil liability arising from the offense chargedis deemed instituted with the criminal action unless the offendedparty waives the civil action, reserves his right to institute itseparately, or institutes the civil action prior to the criminal action.

Same; Same; Same; There is no more need for a reservation of

the right to file the independent civil actions under Articles 32, 33,

34 and 2176 of the Civil Code of the Philippines.·There is no moreneed for a reservation of the right to file the independent civilactions under Articles 32, 33, 34 and 2176 of the Civil Code of thePhilippines. „The reservation and waiver referred to refers only tothe civil action for the recovery of the civil liability arising from theoffense charged. This does not include recovery of civil liabilityunder Articles 32, 33, 34 and 2176 of the Civil Code of thePhilippines arising from the same act or omission which may beprosecuted separately even without a reservation.‰

Same; Same; There are no vested rights in the rules of

procedure.· Procedural laws may be given retroactive effect toactions pending and undetermined at the time of their passage.There are no vested rights in the rules of procedure.

SPECIAL CIVIL ACTION in the Supreme Court.Certiorari.

The facts are stated in the opinion of the Court. Isidro Q. Lico and Marieto P. Gallego for petitioner. Public AttorneyÊs Office and Constantino Jaraula for

private respondents.

PARDO, J.:

The Case

In this special civil action for certiorari, petitioner DMPIEmployees Credit Cooperative, Inc. (DMPI-ECCI) seeks theannul-

74





ment of the order1 of the Regional Trial Court, Misamis

Oriental, Branch 20, granting the motion forreconsideration of respondent Eriberta Villegas, and thusreversing the previous dismissal of Civil Case No. CV-94-214.

The Facts

On February 18, 1994, the prosecuting attorney filed withthe Regional Trial Court, Misamis Oriental, Branch 37, aninformation for estafa

2 against Carmen Mandawe for

alleged failure to account to respondent Eriberta Villegasthe amount of P608,532.46. Respondent Villegas entrustedthis amount to Carmen Mandawe, an employee ofpetitioner DMPI-ECCI, for deposit with the teller ofpetitioner.

Subsequently, on March 29, 1994, respondent EribertaVillegas filed with the Regional Trial Court, MisamisOriental, Branch 20, a complaint

3 against Carmen

Mandawe and petitioner DMPI-ECCI for a sum of moneyand damages with preliminary attachment arising out ofthe same transaction. In time, petitioner sought thedismissal of the civil case on the following grounds: (1) thatthere is a pending criminal case in RTC Branch 37, arisingfrom the same facts, and (2) that the complaint failed tocontain a certification against forum shopping as requiredby Supreme Court Circular No. 28-91.

4

On December 12, 1996, the trial court issued an order5

dismissing Civil Case No. CV-94-214. On January 21, 1997,respondent filed a motion for reconsideration

6 of the order.

On February 21, 1997, the trial court issued an order7

granting respondentÊs motion for reconsideration, therebyrecalling the dismissal of the case.

_______________

1 In Civil Case No. CV-94-214.2 Petition, Annex „D,‰ Rollo, p. 21.










3 Petition, Annex „E,‰ Rollo, pp. 23-27.4 Petition, Annexes „F‰ and „H,‰ Rollo, pp. 28-33 and pp. 37-41.5 Petition, Annex „J,‰ Rollo, pp. 45-46.6 Petition, Annex „K,‰ Rollo, pp. 47-48.7 Petition, Annex „A,‰ Rollo, pp. 14-16.

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VOL. 371, NOVEMBER 29, 2001 75


Hence, this petition.8

The Issues

The issues raised are: (1) whether the plaintiff Ês failure toattach a certification against forum shopping in thecomplaint is a ground to dismiss the case;

9 and, (2) whether

the civil case could proceed independently of the criminalcase for estafa without having reserved the filing of thecivil action.

The CourtÊs Ruling

On the first issue, Circular No. 28-9110

of the SupremeCourt requires a certificate of non-forum shopping to beattached to petitions filed before the Supreme Court andthe Court of Appeals. This circular was revised onFebruary 8, 1994

11 by extending the requirement to all

initiatory pleadings filed in all courts and quasijudicialagencies other than the Supreme Court and the Court ofAppeals.

Respondent VillegasÊ failure to attach a certificate ofnon-forum shopping in her complaint did not violateCircular No. 28-91, because at the time of filing, therequirement applied only to petitions filed with theSupreme Court and the Court of Appeals.

12 Likewise,

Administrative Circular No. 04-94 is inapplicable for the

_______________








8 Petition, Rollo, pp. 1-13. On January 31, 2000, we gave due course to

the petition (Rollo, pp. 102-103).9 Civil Case No. CV-94-214.10 Re: „Additional Requisites for Petitions filed with the Supreme

Court and the Court of Appeals to Prevent Forum Shopping or Multiple

Filing of Petitions and Complaints.‰ (Dated September 4, 1991 but took

effect on January 1, 1992).11 By Administrative Circular No. 04-94, which took effect on April 1,

1994.12 Benguet Electric Cooperative, Inc. v. Flores, 350 Phil. 889, 896; 287

SCRA 449 (1998), citing Gabionza v. Court of Appeals, 234 SCRA 192,

196 (1994) and Cadalin v. POEA Administrator, 238 SCRA 721, 770

(1994).

76



reason that the complaint was filed on March 29, 1994,three days before April 1, 1994, the date of effectivity of thecircular.

13

On the second issue, as a general rule, an offense causestwo (2) classes of injuries. The first is the social injuryproduced by the criminal act which is sought to be repairedthru the imposition of the corresponding penalty, and thesecond is the personal injury caused to the victim of thecrime which injury is sought to be compensated throughindemnity which is civil in nature.

14

Thus, „every person criminally liable for a felony is alsocivilly liable.‰

15 This is the law governing the recovery of

civil liability arising from the commission of an offense.Civil liability includes restitution, reparation for damagecaused, and indemnification of consequential damages.

16

The offended party may prove the civil liability of anaccused arising from the commission of the offense in thecriminal case since the civil action is either deemedinstituted with the criminal action or is separatelyinstituted.

Rule 111, Section 1 of the Revised Rules of CriminalProcedure, which became effective on December 1, 2000,provides that:







„(a) When a criminal action is instituted, the civil action for the

recovery of civil liability arising from the offense charged shall be

deemed instituted with the criminal action unless the offended partywaives the civil action, reserves the right to institute it separatelyor institutes the civil action prior to the criminal action.‰ [Emphasissupplied]

Rule 111, Section 2 further provides that·

„After the criminal action has been commenced, the separate civil

action arising therefrom cannot be instituted until final judgment

has been entered in the criminal action.‰ [Emphasis supplied]

_______________

13 Benguet Electric Cooperative, Inc. v. Flores, 350 Phil. 889, 897; 287

SCRA 449 (1998).14 Ramos v. Gonong, 72 SCRA 559, (1976), citing Guevarra,

Commentaries on the Revised Penal Code, 5th Ed., p. 159.15 Article 100, Revised Penal Code.16 Article 104, Revised Penal Code.

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VOL. 371, NOVEMBER 29, 2001 77


However, with respect to civil actions for recovery of civilliability under Articles 32, 33, 34 and 2176 of the CivilCode arising from the same act or omission, the rule hasbeen changed.

Under the present rule, only the civil liability arisingfrom the offense charged is deemed instituted with thecriminal action unless the offended party waives the civilaction, reserves his right to institute it separately, orinstitutes the civil action prior to the criminal action.

17

There is no more need for a reservation of the right tofile the independent civil actions under Articles 32, 33, 34and 2176 of the Civil Code of the Philippines. „Thereservation and waiver referred to refers only to the civilaction for the recovery of the civil liability arising from theoffense charged. This does not include recovery of civil




liability under Articles 32, 33, 34 and 2176 of the CivilCode of the Philippines arising from the same act oromission which may be prosecuted separately even withouta reservation.‰

18

Rule 111, Section 3 reads:

„Sec. 3. When civil action may proceed independently.·In the casesprovided in Articles 32, 33, 34 and 2176 of the Civil Code of thePhilippines, the independent civil action may be brought by theoffended party. It shall proceed independently of the criminal actionand shall require only a preponderance of evidence. In no case,however, may the offended party recover damages twice for thesame act or omission charged in the criminal action.‰

The changes in the Revised Rules on Criminal Procedurepertaining to independent civil actions which becameeffective on December 1, 2000 are applicable to this case.

Procedural laws may be given retroactive effect toactions pending and undetermined at the time of theirpassage. There are no vested rights in the rules ofprocedure.

19

_______________

17 Justice Oscar M. Herrera (Ret.), „Treatise on Criminal Procedure:

Salient Changes in the Revised Rules on Criminal Procedure (Rules 110-

127, Revised Rules of Court)‰ (2001), p. 44.18 Supra, Note 17, pp. 44-45.19 Pfizer, Inc. v. Galan, G.R. No. 143389, May 25, 2001, 358 SCRA 240.

78



Thus, Civil Case No. CV-94-214, an independent civilaction for damages on account of the fraud committedagainst respondent Villegas under Article 33 of the CivilCode, may proceed independently even if there was noreservation as to its filing.

The Fallo





WHEREFORE, the Court DENIES the petition. The CourtAFFIRMS the order dated February 21, 1997.

20

No costs.SO ORDERED.

Davide, Jr. (C.J., Chairman), Puno, Kapunan andYnares-Santiago, JJ., concur.

Petition denied, order of February 21, 1997 affirmed.

Note.·Where forum-shopping is deemed to exist, thesummary dismissal of both actions is warranted.(Prubankers Association vs. Prudential Bank & Trust

Company, 302 SCRA 74 [1999])

··o0o··

_______________

20 In Civil Case No. CV-94-214 of the Regional Trial Court, Misamis

Oriental, Branch 20.

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Casupanan vs. Laroya

G.R. No. 145391. August 26, 2002.*

AVELINO CASUPANAN and ROBERTO CAPITULO,petitioners, vs. MARIO LLAVORE LAROYA, respondent.

Remedial Law; Actions; Dismissals; Under Administrative

Circular No. 04-94 the order of dismissal is without prejudice to

refiling the complaint, unless the order of dismissal expressly states

it is with prejudice.·The MCTC dismissed the civil action forquasi-delict on the ground of forum-shopping under Supreme CourtAdministrative Circular No. 04-94. The MCTC did not state in itsorder of dismissal that the dismissal was with prejudice. Under theAdministrative Circular, the order of dismissal is without prejudiceto refiling the complaint, unless the order of dismissal expresslystates it is with prejudice. Absent a declaration that the dismissal iswith prejudice, the same is deemed without prejudice. Thus, the

_______________

* THIRD DIVISION.

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VOL. 388, AUGUST 26, 2002 29


MCTCÊs dismissal, being silent on the matter, is a dismissal without

prejudice.

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Same; Same; Same; An order dismissing an action without

prejudice is not appealable.·Section 1 of Rule 41 provides that anorder dismissing an action without prejudice is not appealable. Theremedy of the aggrieved party is to file a special civil action underRule 65. Section 1 of Rule 41 expressly states that „where thejudgment or final order is not appealable, the aggrieved party mayfile an appropriate special civil action under Rule 65.‰ Clearly, theCapas RTCÊs order dismissing the petition for certiorari, on theground that the proper remedy is an ordinary appeal, is erroneous.

Same; Same; Forum-shopping; Essence of forum-shopping.

·The essence of forum-shopping is the filing of multiple suitsinvolving the same parties for the same cause of action, eithersimultaneously or successively, to secure a favorable judgment.Forum-shopping is present when in the two or more cases pending,there is identity of parties, rights of action and reliefs sought.However, there is no forum-shopping in the instant case because thelaw and the rules expressly allow the filing of a separate civil actionwhich can proceed independently of the criminal action.

Same; Same; Same; 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.·Moreover, paragraph 6, Section 1, Rule 111 ofthe 2000 Rules on Criminal Procedure („2000 Rules‰ for brevity)expressly requires the accused to litigate his counterclaim in aseparate civil action, to wit: „SECTION 1. Institution of criminaland civil actions.·(a) x x x. No counterclaim, crossclaim 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.‰ (Emphasis supplied) Since thepresent Rules require the accused in a criminal action to file hiscounterclaim in a separate civil action, there can be no forum-shopping if the accused files such separate civil action.

Same; Same; Independent Civil Actions; To file a separate and

independent civil action for quasi-delict under the 1985 Rules, the

offended party had to reserve in the criminal action the right to

bring such action.·Section 1, Rule 111 of the 1985 Rules onCriminal Procedure („1985 Rules‰ for brevity), as amended in 1988,allowed the filing of a separate civil action independently of thecriminal action provided the offended party reserved the right to filesuch civil action. Unless the offended party reserved the civil actionbefore the presentation of the evidence for the prosecution, all civil



actions arising from the same act or omission were

30



deemed „impliedly instituted‰ in the criminal case. These civilactions referred to the recovery of civil liability ex-delicto, therecovery of damages for quasi-delict, and the recovery of damagesfor violation of Articles 32, 33 and 34 of the Civil Code on HumanRelations. Thus, to file a separate and independent civil action forquasi-delict under the 1985 Rules, the offended party had to reservein the criminal action the right to bring such action. Otherwise,such civil action was deemed „impliedly instituted‰ in the criminalaction.

Same; Same; Same; Under Section 1 of the present Rule 111

what is „deemed instituted‰ with the criminal action is only the

action to recover civil liability arising from the crime or ex-delicto.·Under Section 1 of the present Rule 111, what is „deemedinstituted‰ with the criminal action is only the action to recover civilliability arising from the crime or ex-delicto. All the other civilactions under Articles 32, 33, 34 and 2176 of the Civil Code are nolonger „deemed instituted,‰ and may be filed separately andprosecuted independently even without any reservation in thecriminal action. The failure to make a reservation in the criminalaction is not a waiver of the right to file a separate and independentcivil action based on these articles of the Civil Code.

Same; Same; Same; Section 3 of Rule 111 refers to the offended

party in the criminal action, not to the accused.·Section 3 of thepresent Rule 111, like its counterpart in the amended 1985 Rules,expressly allows the „offended party‰ to bring an independent civilaction under Articles 32, 33, 34 and 2176 of the Civil Code. Asstated in Section 3 of the present Rule 111, this civil action shallproceed independently of the criminal action and shall require onlya preponderance of evidence. In no case, however, may the „offendedparty recover damages twice for the same act or omission chargedin the criminal action.‰ There is no question that the offended partyin the criminal action can file an independent civil action for



quasidelict against the accused. Section 3 of the present Rule 111expressly states that the „offended party‰ may bring such an actionbut the „offended party‰ may not recover damages twice for thesame act or omission charged in the criminal action. Clearly,Section 3 of Rule 111 refers to the offended party in the criminalaction, not to the accused.

PETITION for review on certiorari of the resolutions of theRegional Trial Court of Capas, Tarlac, Br. 66.

The facts are stated in the opinion of the Court. Yolanda C. Castro for petitioners. Pablo Olarte for private respondent.

31

VOL. 388, AUGUST 26, 2002 31


CARPIO, J.:

The Case

This is a petition for review on certiorari to set aside theResolution

1 dated December 28, 1999 dismissing the

petition for certiorari and the Resolution2 dated August 24,

2000 denying the motion for reconsideration, both issuedby the Regional Trial Court of Capas, Tarlac, Branch 66, inSpecial Civil Action No. 17-C (99).

The Facts

Two vehicles, one driven by respondent Mario LlavoreLaroya („Laroya‰ for brevity) and the other owned bypetitioner Roberto Capitulo („Capitulo‰ for brevity) anddriven by petitioner Avelino Casupanan („Casupanan‰ forbrevity), figured in an accident. As a result, two cases werefiled with the Municipal Circuit Trial Court („MCTC‰ forbrevity) of Capas, Tarlac. Laroya filed a criminal caseagainst Casupanan for reckless imprudence resulting indamage to property, docketed as Criminal Case No. 002-99.





On the other hand, Casupanan and Capitulo filed a civilcase against Laroya for quasi-delict, docketed as Civil CaseNo. 2089.

When the civil case was filed, the criminal case was thenat its preliminary investigation stage. Laroya, defendant inthe civil case, filed a motion to dismiss the civil case on theground of forum-shopping considering the pendency of thecriminal case. The MCTC granted the motion in the Orderof March 26, 1999 and dismissed the civil case.

On Motion for Reconsideration, Casupanan and Capituloinsisted that the civil case is a separate civil action whichcan proceed independently of the criminal case. The MCTCdenied the motion for reconsideration in the Order of May7, 1999. Casupanan and Capitulo filed a petition forcertiorari under Rule 65 before the Regional Trial Court(„Capas RTC‰ for brevity) of Capas, Tarlac, Branch 66,

3

assailing the MCTCÊs Order of dismissal.

_______________

1 Penned by Judge Josefina D. Ceballos.2 Penned by Judge Cesar M. Sotero.3 Docketed as Special Civil Action No. 17-C (99).

32



The Trial CourtÊs Ruling

The Capas RTC rendered judgment on December 28, 1999dismissing the petition for certiorari for lack of merit. TheCapas RTC ruled that the order of dismissal issued by theMCTC is a final order which disposes of the case andtherefore the proper remedy should have been an appeal.The Capas RTC further held that a special civil action forcertiorari is not a substitute for a lost appeal. Finally, theCapas RTC declared that even on the premise that theMCTC erred in dismissing the civil case, such error is a




pure error of judgment and not an abuse of discretion.Casupanan and Capitulo filed a Motion for

Reconsideration but the Capas RTC denied the same in theResolution of August 24, 2000.

Hence, this petition.

The Issue

The petition premises the legal issue in this wise:

„In a certain vehicular accident involving two parties, each one ofthem may think and believe that the accident was caused by thefault of the other, x x x [T]he first party, believing himself to be theaggrieved party, opted to file a criminal case for recklessimprudence against the second party. On the other hand, the secondparty, together with his operator, believing themselves to be the realaggrieved parties, opted in turn to file a civil case for quasi-delictagainst the first party who is the very private complainant in thecriminal case.‰

4

Thus, the issue raised is whether an accused in a pendingcriminal case for reckless imprudence can validly file,simultaneously and independently, a separate civil actionfor quasi-delict against the private complainant in thecriminal case.

_______________

4 Petition for Review on Certiorari dated October 27, 2000, pp. 1 & 2;

Rollo, pp. 9 & 10.

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VOL. 388, AUGUST 26, 2002 33


The CourtÊs Ruling

Casupanan and Capitulo assert that Civil Case No. 2089,which the MCTC dismissed on the ground of forum-shopping, constitutes a counterclaim in the criminal case.




Casupanan and Capitulo argue that if the accused in acriminal case has a counterclaim against the privatecomplainant, he may file the counterclaim in a separatecivil action at the proper time. They contend that an actionon quasi-delict is different from an action resulting fromthe crime of reckless imprudence, and an accused in acriminal case can be an aggrieved party in a civil casearising from the same incident. They maintain that underArticles 31 and 2176 of the Civil Code, the civil case canproceed independently of the criminal action. Finally, theypoint out that Casupanan was not the only one who filedthe independent civil action based on quasi-delict but alsoCapitulo, the owner-operator of the vehicle, who was not aparty in the criminal case.

In his Comment, Laroya claims that the petition isfatally defective as it does not state the real antecedents.Laroya further alleges that Casupanan and Capituloforfeited their right to question the order of dismissal whenthey failed to avail of the proper remedy of appeal. Laroyaargues that there is no question of law to be resolved as theorder of dismissal is already final and a petition forcertiorari is not a substitute for a lapsed appeal.

In their Reply, Casupanan and Capitulo contend thatthe petition raises the legal question of whether there isforum-shopping since they filed only one action·theindependent civil action for quasi-delict against Laroya.

Nature of the Order of Dismissal

The MCTC dismissed the civil action for quasi-delict on theground of forum-shopping under Supreme CourtAdministrative Circular No. 04-94. The MCTC did not statein its order of dismissal

5 that the dismissal was with

prejudice. Under the Administrative Circular, the order ofdismissal is without prejudice to re-

_______________

5 Records of Special Civil Action No. 17 C-Ê99, Order of March 26,

1999, pp. 12-14.

34






filing the complaint, unless the order of dismissal expresslystates it is with prejudice.

6 Absent a declaration that the

dismissal is with prejudice, the same is deemed withoutprejudice. Thus, the MCTCÊs dismissal, being silent on thematter, is a dismissal without prejudice.

Section I of Rule 417 provides that an order dismissing

an action without prejudice is not appealable. The remedyof the aggrieved party is to file a special civil action underRule 65. Section 1 of Rule 41 expressly states that „wherethe judgment or final order is not appealable, the aggrievedparty may file an appropriate special civil action underRule 65.‰ Clearly, the Capas RTCÊs order dismissing thepetition for certiorari, on the ground that the properremedy is an ordinary appeal, is erroneous.

Forum-Shopping

The essence of forum-shopping is the filing of multiple suitsinvolving the same parties for the same cause of action,either simultaneously or successively, to secure a favorablejudgment.

8 Forum-shopping is present when in the two or

more cases pending, there is identity of parties, rights ofaction and reliefs sought.

9 However, there is no forum-

shopping in the instant case because the law and the rulesexpressly allow the filing of a separate civil action whichcan proceed independently of the criminal action.

Laroya filed the criminal case for reckless imprudenceresulting in damage to property based on the Revised PenalCode while Casupanan and Capitulo filed the civil actionfor damages based on Article 2176 of the Civil Code.Although these two actions arose

_______________

6 Sto. Domingo-David vs. Guerrero, 296 SCRA 277 (1998).7 Section 9, Rule 40 (Appeal from Municipal Trial Courts to the

Regional Trial Courts) provides:

„SEC. 9. Applicability of Rule 41.·The other provisions of Rule 41 shall apply

to appeals provided for herein insofar as they are not inconsistent with or may







serve to supplement the provisions of this Rule.‰

8 Melo vs. Court of Appeals, 318 SCRA 94 (1999).9 International School, Inc. (Manila) vs. Court of Appeals, 309 SCRA

474 (1999).

35

VOL. 388, AUGUST 26, 2002 35


from the same act or omission, they have different causesof action. The criminal case is based on culpa criminal

punishable under the Revised Penal Code while the civilcase is based on culpa aquiliana actionable under Articles2176 and 2177 of the Civil Code. These articles on culpa

aquiliana read:

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

Art. 2177. Responsibility for fault or negligence under thepreceding article is entirely separate and distinct from the civilliability arising from negligence under the Penal Code. But theplaintiff cannot recover damages twice for the same act or omissionof the defendant.‰

Any aggrieved person can invoke these articles provided heproves, by preponderance of evidence, that he has suffereddamage because of the fault or negligence of another.Either the private complainant or the accused can file aseparate civil action under these articles. There is nothingin the law or rules that state only the private complainantin a criminal case may invoke these articles.

Moreover, paragraph 6, Section 1, Rule 111 of the 2000Rules on Criminal Procedure („2000 Rules‰ for brevity)expressly requires the accused to litigate his counterclaimin a separate civil action, to wit:

„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 actionwhich could have been the subject thereof may be litigated in aseparate civil action.‰ (Emphasis supplied)

Since the present Rules require the accused in a criminalaction to file his counterclaim in a separate civil action,there can be no forum-shopping if the accused files suchseparate civil action.

36



Filing of a separate civil action

Section 1, Rule 111 of the 1985 Rules on CriminalProcedure („1985 Rules‰ for brevity), as amended in 1988,allowed the filing of a separate civil action independently ofthe criminal action provided the offended party reservedthe right to file such civil action. Unless the offended partyreserved the civil action before the presentation of theevidence for the prosecution, all civil actions arising fromthe same act or omission were deemed „impliedlyinstituted‰ in the criminal case. These civil actions referredto the recovery of civil liability ex-delicto, the recovery ofdamages for quasidelict, and the recovery of damages forviolation of Articles 32, 33 and 34 of the Civil Code onHuman Relations.

Thus, to file a separate and independent civil action forquasidelict under the 1985 Rules, the offended party had toreserve in the criminal action the right to bring suchaction. Otherwise, such civil action was deemed „impliedlyinstituted‰ in the criminal action. Section 1, Rule 111 of the1985 Rules provided as follows:

„Section 1.·Institution of criminal and civil actions.·When acriminal action is instituted, the civil action for the recovery of civilliability is impliedly instituted with the criminal action, unless theoffended party waives the action, reserves his right to institute itseparately, or institutes the civil action prior to the criminal action.

Such civil action includes recovery of indemnity under the



Revised Penal Code, and damages under Articles 32, 33, 34 and

2176 of the Civil Code of the Philippines arising from the same act

or omission of the accused.

A waiver of any of the civil actions extinguishes the others. Theinstitution of, or the reservation of the right to file, any of said civilactions separately waives the others.

The reservation of the right to institute the separate civil actionsshall be made before the prosecution starts to present its evidenceand under circumstances affording the offended party a reasonableopportunity to make such reservation.

In no case may the offended party recover damages twice for thesame act or omission of the accused.

x x x.‰ (Emphasis supplied)

37

VOL. 388, AUGUST 26, 2002 37


Section 1, Rule 111 of the 1985 Rules was amended onDecember 1, 2000 and now provides as follows:

„SECTION 1. Institution of criminal and civil actions.·(a) When acriminal action is instituted, the civil action for the recovery of civil

liability arising from the offense charged shall be deemed instituted

with the criminal action unless the offended party waives the civilaction, reserves the right to institute it separately or institutes thecivil action prior to the criminal action.

The reservation of the right to institute separately the civilaction shall be made before the prosecution starts presenting itsevidence and under circumstances affording the offended party areasonable opportunity to make such reservation.

xxx(b) xxxWhere the civil action has been filed separately and trial thereof

has not yet commenced, it may be consolidated with the criminalaction upon application with the court trying the latter case. If theapplication is granted, the trial of both actions shall proceed inaccordance with section 2 of this rule governing consolidation of thecivil and criminal actions.‰ (Emphasis supplied)

Under Section 1 of the present Rule 111, what is „deemed



instituted‰ with the criminal action is only the action torecover civil liability arising from the crime or ex-delicto.

All the other civil actions under Articles 32, 33, 34 and2176 of the Civil Code are no longer „deemed instituted,‰and may be filed separately and prosecuted independentlyeven without any reservation in the criminal action. Thefailure to make a reservation in the criminal action is not awaiver of the right to file a separate and independent civilaction based on these articles of the Civil Code. Theprescriptive period on the civil actions based on thesearticles of the Civil Code continues to run even with thefiling of the criminal action. Verily, the civil actions basedon these articles of the Civil Code are separate, distinct andindependent of the civil action „deemed instituted‰ in thecriminal action.

10

_______________

10 Neplum, Inc. vs. Evelyn V. Orbeso, G.R. No. 141986, prom. July 11,

2002, at pp. 11-12, 384 SCRA 466.

38



Under the present Rule 111, the offended party is stillgiven the option to file a separate civil action to recovercivil liability exdelicto by reserving such right in thecriminal action before the prosecution presents itsevidence. Also, the offended party is deemed to make suchreservation if he files a separate civil action before filingthe criminal action. If the civil action to recover civilliability ex-delicto is filed separately but its trial has notyet commenced, the civil action may be consolidated withthe criminal action. The consolidation under this Rule doesnot apply to separate civil actions arising from the same actor omission filed under Articles 32, 33, 34 and 2176 of theCivil Code.

11

Suspension of the Separate Civil Action

Under Section 2, Rule 111 of the amended 1985 Rules, a





separate civil action, if reserved in the criminal action,could not be filed until after final judgment was renderedin the criminal action. If the separate civil action was filedbefore the commencement of the criminal action, the civilaction, if still pending, was suspended upon the filing of thecriminal action until final judgment was rendered in thecriminal action. This rule applied only to the separate civilaction filed to recover liability ex-delicto. The rule did notapply to independent civil actions based on Articles 32, 33,34 and 2176 of the Civil Code, which could proceedindependently regardless of the filing of the criminalaction.

The amended provision of Section 2, Rule 111 of the2000 Rules continues this procedure, to wit:

„SEC. 2. When separate civil action is suspended.·After thecriminal action has been commenced, the separate civil actionarising therefrom cannot be instituted until final judgment hasbeen entered in the criminal action.

_______________

11 Section 1 of Rule 31, however, allows consolidation, in the discretion

of the trial court, of actions involving common questions of law or fact

pending before the same court (Cojuangco, Jr. vs. Court of Appeals, (203

SCRA 619 [1991]), or pending even in different branches of the same

regional trial court if one of the cases has not been partially tried

(Raymundo vs. Felipe, 42 SCRA 615 [1971]).

39

VOL. 388, AUGUST 26, 2002 39


If the criminal action is filed after the said civil action has already

been instituted, the latter shall be suspended in whatever stage it

may be found before judgment on the merits. The suspension shall

last until final judgment is rendered in the criminal action.Nevertheless, before judgment on the merits is rendered in the civilaction, the same may, upon motion of the offended party, beconsolidated with the criminal action in the court trying thecriminal action. In case of consolidation, the evidence already



adduced in the civil action shall be deemed automaticallyreproduced in the criminal action without prejudice to the right ofthe prosecution to cross-examine the witnesses presented by theoffended party in the criminal case and of the parties to presentadditional evidence. The consolidated criminal and civil actionsshall be tried and decided jointly.

During the pendency of the criminal action, the running of theperiod of prescription of the civil action which cannot be institutedseparately or whose proceeding has been suspended shall be tolled.

x x x.‰ (Emphasis supplied)

Thus, Section 2, Rule 111 of the present Rules did notchange the rule that the separate civil action, filed torecover damages exdelicto, is suspended upon the filing ofthe criminal action. Section 2 of the present Rule 111 alsoprohibits the filing, after commencement of the criminalaction, of a separate civil action to recover damages ex-

delicto.

When civil action may proceed independently

The crucial question now is whether Casupanan andCapitulo, who are not the offended parties in the criminalcase, can file a separate civil action against the offendedparty in the criminal case. Section 3, Rule 111 of the 2000Rules provides as follows:

„SEC. 3. When civil action may proceed independently.·In the casesprovided in Articles 32, 33, 34 and 2176 of the Civil Code of thePhilippines, the independent civil action may be brought by theoffended party. It shall proceed independently of the criminal actionand shall require only a preponderance of evidence. In no case,however, may the offended party recover damages twice for thesame act or omission charged in the criminal action.‰ (Emphasissupplied)

Section 3 of the present Rule 111, like its counterpart in theamended 1985 Rules, expressly allows the „offended party‰to bring an independent civil action under Articles 32, 33,34 and 2176 of

40





the Civil Code. As stated in Section 3 of the present Rule111, this civil action shall proceed independently of thecriminal action and shall require only a preponderance ofevidence. In no case, however, may the „offended partyrecover damages twice for the same act or omission chargedin the criminal action.‰

There is no question that the offended party in thecriminal action can file an independent civil action forquasi-delict against the accused. Section 3 of the presentRule 111 expressly states that the „offended party‰ maybring such an action but the „offended party‰ may notrecover damages twice for the same act or omission chargedin the criminal action. Clearly, Section 3 of Rule 111 refersto the offended party in the criminal action, not to theaccused.

Casupanan and Capitulo, however, invoke the ruling inCabaero vs. Cantos

12 where the Court held that the accused

therein could validly institute a separate civil action forquasi-delict against the private complainant in thecriminal case. In Cabaero, the accused in the criminal casefiled his Answer with Counterclaim for maliciousprosecution. At that time the Court noted the „absence ofclear-cut rules governing the prosecution on impliedlyinstituted civil actions and the necessary consequences and

implications thereof.‰ Thus, the Court ruled that the trialcourt should confine itself to the criminal aspect of the caseand disregard any counterclaim for civil liability. The Courtfurther ruled that the accused may file a separate civil caseagainst the offended party „after the criminal case isterminated and/or in accordance with the new Rules whichmay be promulgated.‰ The Court explained that a cross-claim, counterclaim or third-party complaint on the civilaspect will only unnecessarily complicate the proceedingsand delay the resolution of the criminal case.

Paragraph 6, Section 1 of the present Rule 111 wasincorporated in the 2000 Rules precisely to address thelacuna mentioned in Cabaero. Under this provision, theaccused is barred from filing a counterclaim, cross-claim orthird-party complaint in the criminal case. However, thesame provision states that „any cause of action which could




have been the subject (of the counterclaim, cross-claim orthird-party complaint) may be litigated in a separate civilac-

_______________

12 271 SCRA 391 (1997).

41

VOL. 388, AUGUST 26, 2002 41


tion.‰ The present Rule 111 mandates the accused to file hiscounterclaim in a separate civil action which shall proceedindependently of the criminal action, even as the civilaction of the offended party is litigated in the criminalaction.

Conclusion

Under Section 1 of the present Rule 111, the independentcivil action in Articles 32, 33, 34 and 2176 of the Civil Codeis not deemed instituted with the criminal action but maybe filed separately by the offended party even withoutreservation. The commencement of the criminal action doesnot suspend the prosecution of the independent civil actionunder these articles of the Civil Code. The suspension inSection 2 of the present Rule 111 refers only to the civilaction arising from the crime, if such civil action isreserved or filed before the commencement of the criminalaction.

Thus, the offended party can file two separate suits forthe same act or omission. The first a criminal case wherethe civil action to recover civil liability ex-delicto is deemedinstituted, and the other a civil case for quasi-delict·without violating the rule on non-forum shopping. The twocases can proceed simultaneously and independently ofeach other. The commencement or prosecution of thecriminal action will not suspend the civil action for quasi-

delict. The only limitation is that the offended party cannotrecover damages twice for the same act or omission of thedefendant. In most cases, the offended party will have no



reason to file a second civil action since he cannot recoverdamages twice for the same act or omission of the accused.In some instances, the accused may be insolvent,necessitating the filing of another case against hisemployer or guardians.

Similarly, the accused can file a civil action for quasi-

delict for the same act or omission he is accused of in thecriminal case. This is expressly allowed in paragraph 6,Section 1 of the present Rule 111 which states that thecounterclaim of the accused „may be litigated in a separate

civil action.‰ This is only fair for two reasons. First, theaccused is prohibited from setting up any counterclaim inthe civil aspect that is deemed instituted in the criminalcase. The accused is therefore forced to litigate separatelyhis counterclaim against the offended party. If the accuseddoes not file a

42



separate civil action for quasi-delict, the prescriptive periodmay set in since the period continues to run until the civilaction for quasi-delict is filed.

Second, the accused, who is presumed innocent, has aright to invoke Article 2177 of the Civil Code, in the sameway that the offended party can avail of this remedy whichis independent of the criminal action. To disallow theaccused from filing a separate civil action for quasi-delict,

while refusing to recognize his counterclaim in the criminalcase, is to deny him due process of law, access to the courts,and equal protection of the law.

Thus, the civil action based on quasi-delict filedseparately by Casupanan and Capitulo is proper. The orderof dismissal by the MCTC of Civil Case No. 2089 on theground of forum-shopping is erroneous.

We make this ruling aware of the possibility that thedecision of the trial court in the criminal case may varywith the decision of the trial court in the independent civilaction. This possibility has always been recognized eversince the Civil Code introduced in 1950 the concept of an



independent civil action under Articles 32, 33, 34 and 2176of the Code. But the law itself, in Article 31 of the Code,expressly provides that the independent civil action „mayproceed independently of the criminal proceedings andregardless of the result of the latter.‰ In Azucena vs.

Potenciano,13

the Court declared:

„x x x. There can indeed be no other logical conclusion than this, forto subordinate the civil action contemplated in the said articles tothe result of the criminal prosecution·whether it be conviction oracquittal·would render meaningless the independent character ofthe civil action and the clear injunction in Article 31 that this actionÂmay proceed independently of the criminal proceedings andregardless of the result of the latter.Ê ‰

More than half a century has passed since the Civil Codeintroduced the concept of a civil action separate andindependent from the criminal action although arising fromthe same act or omission. The Court, however, has yet toencounter a case of conflicting and irreconcilable decisionsof trial courts, one hearing the criminal

_______________

13 5 SCRA 468 (1962).

43

VOL. 388, AUGUST 26, 2002 43


case and the other the civil action for quasi-delict. The fearof conflicting and irreconcilable decisions may be moreapparent than real. In any event, there are sufficientremedies under the Rules ofCourt to deal with such remote possibilities.

One final point. The Revised Rules on CriminalProcedure took effect on December 1, 2000 while the MCTCissued the order of dismissal on December 28, 1999 orbefore the amendment of the rules. The Revised Rules onCriminal Procedure must be given retroactive effectconsidering the well-settled rule that·




„x x x statutes regulating the procedure of the court will beconstrued as applicable to actions pending and undetermined at thetime of their passage. Procedural laws are retroactive in that senseand to that extent.‰

14

WHEREFORE, the petition for review on certiorari ishereby GRANTED. The Resolutions dated December 28,1999 and August 24, 2000 in Special Civil Action No. 17-C(99) are ANNULLED and Civil Case No. 2089 isREINSTATED.

SO ORDERED. Puno (Chairman) and Panganiban, JJ., concur. Sandoval-Gutierrez, J., On leave.Petition granted, resolutions annulled.

Note.·Forum-shopping exists where the elements oflitis pendencia are present or where a final judgment in onecase will amount to res judicata in the other. (Cruz vs.

Court of Appeals, 309 SCRA 784 [1999])

··o0o··

_______________

14 People vs. Arrojado, 350 SCRA 679 (2001) citing Ocampo vs. Court of

Appeals, 180 SCRA 27 (1989), Alday vs. Camilon, 120 SCRA 521 (1983) &

People vs. Sumilang, 77 Phil. 764 (1946).

44




Page 1 of 29http://www.central.com.ph/sfsreader/session/0000014fd11df1073c48679f000a0094004f00ee/p/AJS022/?username=Guest

G.R. No. 141538. March 23, 2004.*

HERMANA R. CEREZO, petitioner, vs. DAVID TUAZON,respondent.

Remedial Law; Default; Remedies available to a party declaredin default.·Lina v. Court of Appeals enumerates the remediesavailable to a party declared in default: (a) The defendant in defaultmay, at any time after discovery thereof and before judgment, file amotion under oath to set aside the order of default on the groundthat his failure to answer was due to fraud, accident, mistake orexcusable negligence, and that he has a meritorious defense (Sec. 3,Rule 18 [now Sec. 3(b), Rule 9]); (b) If the judgment has alreadybeen rendered when the defendant discovered the

_______________

* FIRST DIVISION.

168


Cerezo vs. Tuazon

default, but before the same has become final and executory, he mayfile a motion for new trial under Section 1 (a) of Rule 37; (c) If thedefendant discovered the default after the judgment has becomefinal and executory, he may file a petition for relief under Section 2[now Section 1] of Rule 38; and (d) He may also appeal from thejudgment rendered against him as contrary to the evidence or to thelaw, even if no petition to set aside the order of default has been

http://www.central.com.ph/sfsreader/session/0000014fd11df1073c48679f000a0094004f00ee/p/AJS022/?username=Guest#p426scra8960167001



presented by him (Sec. 2, Rule 41).

Same; Same; A petition for certiorari to declare the nullity of ajudgment by default is also available if the trial court improperlydeclared a party in default or even if the trial court properlydeclared a party in default if grave abuse of discretion attended suchdeclaration.·Moreover, a petition for certiorari to declare thenullity of a judgment by default is also available if the trial courtimproperly declared a party in default, or even if the trial courtproperly declared a party in default, if grave abuse of discretionattended such declaration.

Same; Annulment of Judgments; Annulment is available onlyon the grounds of extrinsic fraud and lack of jurisdiction.·After ourresolution denying Mrs. CerezoÊs petition for relief became final andexecutory, Mrs. Cerezo, in her last ditch attempt to evade liability,filed before the Court of Appeals a petition for annulment of thejudgment of the trial court. Annulment is available only on thegrounds of extrinsic fraud and lack of jurisdiction. If based onextrinsic fraud, a party must file the petition within four years fromits discovery, and if based on lack of jurisdiction, before laches orestoppel bars the petition. Extrinsic fraud is not a valid ground ifsuch fraud was used as a ground, or could have been used as aground, in a motion for new trial or petition for relief fromjudgment.

Same; Same; Same; A party may avail of the remedy ofannulment of judgment under Rule 47 only if the ordinary remediesof new trial, appeal, petition for relief from judgment or otherappropriate remedies are no longer available through no fault of theparty.·Mrs. Cerezo insists that lack of jurisdiction, not extrinsicfraud, was her ground for filing the petition for annulment ofjudgment. However, a party may avail of the remedy of annulmentof judgment under Rule 47 only if the ordinary remedies of newtrial, appeal, petition for relief from judgment, or other appropriateremedies are no longer available through no fault of the party. Mrs.Cerezo could have availed of a new trial or appeal but through herown fault she erroneously availed of the remedy of a petition forrelief, which was denied with finality. Thus, Mrs. Cerezo may nolonger avail of the remedy of annulment.

Criminal Law; Quasi-Delict; Civil Liability; An action based ona quasi-delict may proceed independently from the criminal action.·The



169

VOL. 426, MARCH 23, 2004 169

Cerezo vs. Tuazon

same negligent act may produce civil liability arising from a delictunder Article 103 of the Revised Penal Code, or may give rise to anaction for a quasi-delict under Article 2180 of the Civil Code. Anaggrieved party may choose between the two remedies. An actionbased on a quasi-delict may proceed independently from thecriminal action. There is, however, a distinction between civilliability arising from a delict and civil liability arising from a quasi-delict. The choice of remedy, whether to sue for a delict or a quasi-delict, affects the procedural and jurisdictional issues of the action.

Same; Same; Same; Labor Law; EmployerÊs Liability; AnemployerÊs liability in an action for a quasi-delict is not onlysolidary, it is also primary and direct.·Contrary to Mrs. CerezoÊsassertion, Foronda is not an indispensable party to the case. Anindispensable party is one whose interest is affected by the courtÊsaction in the litigation, and without whom no final resolution of thecase is possible. However, Mrs. CerezoÊs liability as an employer inan action for a quasi-delict is not only solidary, it is also primaryand direct. Foronda is not an indispensable party to the finalresolution of TuazonÊs action for damages against Mrs. Cerezo.

Same; Same; Same; Same; The responsibility of two or morepersons who are liable for a quasi-delict is solidary; Where theobligation of the parties is solidary, either of the parties isindispensable and the other is not even a necessary party becausecomplete relief is available from either.· The responsibility of two ormore persons who are liable for a quasi-delict is solidary. Wherethere is a solidary obligation on the part of debtors, as in this case,each debtor is liable for the entire obligation. Hence, each debtor isliable to pay for the entire obligation in full. There is no merger orrenunciation of rights, but only mutual representation. Where theobligation of the parties is solidary, either of the parties isindispensable, and the other is not even a necessary party becausecomplete relief is available from either. Therefore, jurisdiction overForonda is not even necessary as Tuazon may collect damages from



Mrs. Cerezo alone.

Same; Same; Same; Same; An employerÊs liability based on aquasi-delict is primary and direct while the employerÊs liabilitybased on a delict is merely subsidiary.·Moreover, an employerÊsliability based on a quasi-delict is primary and direct, while theemployerÊs liability based on a delict is merely subsidiary. Thewords „primary and direct,‰ as contrasted with „subsidiary,‰ refer tothe remedy provided by law for enforcing the obligation rather thanto the character and limits of the obligation. Although liabilityunder Article 2180 originates from the negligent act of theemployee, the aggrieved party may sue the employer directly. Whenan employee causes damage, the law presumes that the employerhas himself committed an act of negligence in not preventing oravoiding the damage. This is the fault that the law condemns.While the employer is civilly

170


Cerezo vs. Tuazon

liable in a subsidiary capacity for the employeeÊs criminalnegligence, the employer is also civilly liable directly and separatelyfor his own civil negligence in failing to exercise due diligence inselecting and supervising his employee. The idea that theemployerÊs liability is solely subsidiary is wrong.

Same; Same; Same; Same; To hold the employer liable in asubsidiary capacity under a delict, the aggrieved party must initiatea criminal action where the employeeÊs delict and correspondingprimary liability are established.·In contrast, an action based on adelict seeks to enforce the subsidiary liability of the employer forthe criminal negligence of the employee as provided in Article 103 ofthe Revised Penal Code. To hold the employer liable in a subsidiarycapacity under a delict, the aggrieved party must initiate a criminalaction where the employeeÊs delict and corresponding primaryliability are established. If the present action proceeds from a delict,then the trial courtÊs jurisdiction over Foronda is necessary.However, the present action is clearly for the quasi-delict of Mrs.Cerezo and not for the delict of Foronda.



PETITION for review on certiorari of the resolutions of theCourt of Appeals.

The facts are stated in the opinion of the Court. Dionisio S. Daga for petitioner. Oscar Malinis for private respondent D. Tuazon.

CARPIO, J.:

The Case

This is a petition for review on certiorari1 to annul the

Resolution2 dated 21 October 1999 of the Court of Appeals

in CA-G.R. SP No. 53572, as well as its Resolution dated 20January 2000 denying the motion for reconsideration. TheCourt of Appeals denied the petition for annulment of theDecision

3 dated 30 May 1995 rendered by the Regional

Trial Court of Angeles City, Branch 56 („trial court‰), inCivil Case No. 7415. The trial court ordered petitionerHermana R. Cerezo („Mrs. Cerezo‰) to pay respondentDavid

_______________

1 Under Rule 45 of the Rules of Court.2 Penned by Associate Justice Elvi John S. Asuncion, with Associate

Justices Eubulo G. Verzola and Artemio G. Tuquero, concurring.3 Penned by Judge Carlos D. Rustia.

171

VOL. 426, MARCH 23, 2004 171

Cerezo vs. Tuazon

Tuazon („Tuazon‰) actual damages, loss of earnings, moraldamages, and costs of suit.

Antecedent Facts

Around noontime of 26 June 1993, a Country Bus Linespassenger bus with plate number NYA 241 collided with a






tricycle bearing plate number TC RV 126 along Captain M.Palo Street, Sta. Ines, Mabalacat, Pampanga. On 1 October1993, tricycle driver Tuazon filed a complaint for damagesagainst Mrs. Cerezo, as owner of the bus line, her husbandAttorney Juan Cerezo („Atty. Cerezo‰), and bus driverDanilo A. Foronda („Foronda‰). The complaint alleged that:

7. At the time of the incident, plaintiff [Tuazon] was in his properlane when the second-named defendant [Foronda], being then thedriver and person in charge of the Country Bus with plate numberNYA 241, did then and there willfully, unlawfully, and feloniouslyoperate the said motor vehicle in a negligent, careless, andimprudent manner without due regard to traffic rules andregulations, there being a „Slow Down‰ sign near the scene of theincident, and without taking the necessary precaution to preventloss of lives or injuries, his negligence, carelessness and imprudenceresulted to severe damage to the tricycle and serious physicalinjuries to plaintiff thus making him unable to walk and becomingdisabled, with his thumb and middle finger on the left hand beingcut[.]

4

On 1 October 1993, Tuazon filed a motion to litigate as apauper. Subsequently, the trial court issued summonsagainst Atty. Cerezo and Mrs. Cerezo („the Cerezospouses‰) at the Makati address stated in the complaint.However, the summons was returned unserved on 10November 1993 as the Cerezo spouses no longer held officenor resided in Makati. On 18 April 1994, the trial courtissued alias summons against the Cerezo spouses at theiraddress in Barangay Sta. Maria, Camiling, Tarlac. Thealias summons and a copy of the complaint were finallyserved on 20 April 1994 at the office of Atty. Cerezo, whowas then working as Tarlac Provincial Prosecutor. Atty.Cerezo reacted angrily on learning of the service ofsummons upon his person. Atty. Cerezo allegedly toldSheriff William Canlas: „Punyeta, ano ang gusto mongmangyari? Gusto

_______________

4 CA Rollo, p. 8.

172





Cerezo vs. Tuazon

mong hindi ka makalabas ng buhay dito? Teritoryo ko ito.Wala ka sa teritoryo mo.

5

The records show that the Cerezo spouses participatedin the proceedings before the trial court. The Cerezospouses filed a comment with motion for bill of particularsdated 29 April 1994 and a reply to opposition to commentwith motion dated 13 June 1994.

6 On 1 August 1994, the

trial court issued an order directing the Cerezo spouses tofile a comment to the opposition to the bill of particulars.Atty. Elpidio B. Valera („Atty. Valera‰) of Valera and ValeraLaw Offices appeared on behalf of the Cerezo spouses. On29 August 1994, Atty. Valera filed an urgent ex-partemotion praying for the resolution of TuazonÊs motion tolitigate as a pauper and for the issuance of new summonson the Cerezo spouses to satisfy proper service inaccordance with the Rules of Court.

7

On 30 August 1994, the trial court issued an orderresolving TuazonÊs motion to litigate as a pauper and theCerezo spousesÊ urgent ex-parte motion. The order reads:

At the hearing on August 30, 1994, the plaintiff [Tuazon] testifiedthat he is presently jobless; that at the time of the filing of this case,his son who is working in Malaysia helps him and sends him oncein a while P300.00 a month, and that he does not have any realproperty. Attached to the Motion to Litigate as Pauper are hisAffidavit that he is unemployed; a Certification by the BarangayCaptain of his poblacion that his income is not enough for hisfamilyÊs subsistence; and a Certification by the Office of theMunicipal Assessor that he has no landholding in the Municipalityof Mabalacat, Province of Pampanga.

The Court is satisfied from the unrebutted testimony of theplaintiff that he is entitled to prosecute his complaint in this case asa pauper under existing rules.

On the other hand, the Court denies the prayer in theAppearance and Urgent Ex-Parte Motion requiring new summonsto be served to the defendants. The Court is of the opinion that anyinfirmity in the service of the summons to the defendant beforeplaintiff was allowed to prosecute his complaint in this case as apauper has been cured by this Order.






_______________

5 Ibid, pp. 13-17.6 Rollo, p. 66.7 CA Rollo, pp. 18-20.

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VOL. 426, MARCH 23, 2004 173

Cerezo vs. Tuazon

If within 15 days from receipt of this Order, the defendants do notquestion on appeal this Order of this Court, the Court shall proceedto resolve the Motion for Bill of Particulars.

8

On 27 September 1994, the Cerezo spouses filed an urgentex-parte motion for reconsideration. The trial court deniedthe motion for reconsideration.

On 14 November 1994, the trial court issued an orderdirecting the Cerezo spouses to file their answer withinfifteen days from receipt of the order. The Cerezo spousesdid not file an answer. On 27 January 1995, Tuazon filed amotion to declare the Cerezo spouses in default. On 6February 1995, the trial court issued an order declaring theCerezo spouses in default and authorizing Tuazon topresent his evidence.

9

On 30 May 1995, after considering TuazonÊs testimonialand documentary evidence, the trial court ruled in TuazonÊsfavor. The trial court made no pronouncement on ForondaÊsliability because there was no service of summons on him.The trial court did not hold Atty. Cerezo liable as Tuazonfailed to show that Mrs. CerezoÊs business benefited thefamily, pursuant to Article 121(3) of the Family Code. Thetrial court held Mrs. Cerezo solely liable for the damagessustained by Tuazon arising from the negligence of Mrs.CerezoÊs employee, pursuant to Article 2180 of the CivilCode. The dispositive portion of the trial courtÊs decisionreads:

„WHEREFORE, judgment is hereby rendered ordering thedefendant Hermana Cerezo to pay the plaintiff:





Âa)

1)

2)

Âb)

Âc)

Âd)

For Actual Damages

Expenses for operation and medical treatment·P69,485.35

Cost of repair of the tricycle·39,921.00

For loss of earnings·43,300.00

For moral damages·20,000.00

And to pay the cost of the suit.

„The docket fees and other expenses in the filing of this suit shallbe lien on whatever judgment may be rendered in favor of theplaintiff.

_______________

8 Ibid, p. 21.9 Rollo, p. 4.

174


Cerezo vs. Tuazon

„SO ORDERED.‰10

Mrs. Cerezo received a copy of the decision on 25 June1995. On 10 July 1995, Mrs. Cerezo filed before the trialcourt a petition for relief from judgment on the grounds of„fraud, mistake or excusable negligence.‰ Testifying beforethe trial court, both Mrs. Cerezo and Atty. Valera deniedreceipt of notices of hearings and of orders of the court.Atty. Valera added that he received no notice before orduring the 8 May 1995 elections, „when he was a senatorialcandidate for the KBL Party, and very busy, using his officeand residence as Party National Headquarters.‰ Atty.Valera claimed that he was able to read the decision of thetrial court only after Mrs. Cerezo sent him a copy.

11 Tuazon

did not testify but presented documentary evidence toprove the participation of the Cerezo spouses in the case.Tuazon presented the following exhibits:

Exhibit „1‰ ·Sheriff Ês return and summons;





Exhibit „1-A‰

·Alias summons dated April 20, 1994;

Exhibit „2‰ ·Comment with Motion;

Exhibit „3‰ ·Minutes of the hearing held on August 1,1994;

Exhibit „3-A‰

·Signature of defendantÊs counsel;

Exhibit „4‰ ·Minutes of the hearing held on August 30,1994;

Exhibit „4-A‰

·Signature of the defendantÊs counsel;

Exhibit „5‰ ·Appearance and Urgent Ex-Parte Motion;

Exhibit „6‰ ·Order dated November 14, 1994;

Exhibit „6-A‰

·Postal certification dated January 13, 1995;

Exhibit „7‰ ·Order dated February [illegible];

Exhibit „7-A‰

·CourtÊs return slip addressed to Atty.Elpidio Valera;

Exhibit „7-B‰

·CourtÊs return slip addressed to SpousesJuan and Hermana Cerezo;

Exhibit „8‰ ·Decision dated May [30], 1995;

Exhibit „8-A‰

·CourtÊs return slip addressed to defendant Hermana Cerezo;

Exhibit „8-B‰

·CourtÊs return slip addressed to defendantÊscounsel, Atty. Elpidio Valera;

_______________

10 CA Rollo, p. 23.11 Ibid., pp. 24-33.

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VOL. 426, MARCH 23, 2004 175

Cerezo vs. Tuazon



Exhibit„9‰

·Order dated September 21, 1995;

Exhibit„9-A‰

·Second Page of Exhibit 9;

Exhibit„9-B‰

·Third page of Exhibit 9;

Exhibit„9-C‰

·Fourth page of Exhibit 9;

Exhibit„9-D‰

·CourtÊs return slip addressed to Atty. ElpidioValera; and

Exhibit„9-E‰

·CourtÊs return slip addressed to plaintiff Êscounsel, Atty. Norman Dick de Guzman.

12

On 4 March 1998, the trial court issued an order13

denyingthe petition for relief from judgment. The trial court statedthat having received the decision on 25 June 1995, theCerezo spouses should have filed a notice of appeal insteadof resorting to a petition for relief from judgment. The trialcourt refused to grant relief from judgment because theCerezo spouses could have availed of the remedy of appeal.Moreover, the Cerezo spouses not only failed to prove fraud,accident, mistake or excusable negligence by conclusiveevidence, they also failed to prove that they had a good andsubstantial defense. The trial court noted that the Cerezospouses failed to appeal because they relied on an expectedsettlement of the case.

The Cerezo spouses subsequently filed before the Courtof Appeals a petition for certiorari under Section 1 of Rule65. The petition was docketed as CA-G.R. SP No. 48132.

14

The petition questioned whether the trial court acquiredjurisdiction over the case considering there was no serviceof summons on Foronda, whom the Cerezo spouses claimedwas an indispensable party. In a resolution

15 dated 21

January 1999, the Court of Appeals denied the petition forcertiorari and affirmed the trial courtÊs order denying thepetition for relief from judgment. The Court of Appealsdeclared that the Cerezo spousesÊ failure to file an answerwas due to their own negligence, considering that theycontinued to participate in the proceedings without filingan answer. There was also







_______________

12 Ibid, pp. 35-36.13 Penned by Judge Lourdes F. Gatbalite.14 Captioned „Hermana R. Cerezo and Juan D. Cerezo, as husband,

petitioners, v. Hon. Lourdes Gatbalite and David Tuazon, respondents.‰15 Penned by Associate Justice Romeo A. Brawner, with Associate

Justices Angelina Sandoval-Gutierrez and Martin S. Villarama, Jr.,

concurring.

176


Cerezo vs. Tuazon

nothing in the records to show that the Cerezo spousesactually offered a reasonable settlement to Tuazon. TheCourt of Appeals also denied Cerezo spousesÊ motion forreconsideration for lack of merit.

The Cerezo spouses filed before this Court a petition forreview on certiorari under Rule 45. Atty. Cerezo himselfsigned the petition, docketed as G.R. No. 137593. On 13April 1999, this Court rendered a resolution denying thepetition for review on certiorari for failure to attach anaffidavit of service of copies of the petition to the Court ofAppeals and to the adverse parties. Even if the petitioncomplied with this requirement, the Court would still havedenied the petition as the Cerezo spouses failed to showthat the Court of Appeals committed a reversible error. TheCourtÊs resolution was entered in the Book of Entries andJudgments when it became final and executory on 28 June1999.

16

Undaunted, the Cerezo spouses filed before the Court ofAppeals on 6 July 1999 a petition for annulment ofjudgment under Rule 47 with prayer for restraining order.Atty. Valera and Atty. Dionisio S. Daga („Atty. Daga‰)represented Mrs. Cerezo in the petition, docketed as CA-G.R. SP No. 53572.

17 The petition prayed for the annulment

of the 30 May 1995 decision of the trial court and for theissuance of a writ of preliminary injunction enjoiningexecution of the trial courtÊs decision pending resolution ofthe petition.





The Court of Appeals denied the petition for annulmentof judgment in a resolution dated 21 October 1999. Theresolution reads in part:

In this case, records show that the petitioner previously filed withthe lower court a Petition for Relief from Judgment on the groundthat they were wrongfully declared in default while waiting for anamicable settlement of the complaint for damages. The court a quocorrectly ruled that such petition is without merit. The defendantspouses admit that during the initial hearing they appeared beforethe court and even mentioned the need for an amicable settlement.Thus, the lower court acquired jurisdiction over the defendantspouses.

_______________

16 Rollo, pp. 60-61.17 Captioned „Hermana R. Cerezo and Juan D. Cerezo, as husband,

petitioners, v. Lourdes Gatbalite, Presiding Judge (incumbent), RTC

Branch 56, Angeles City, and David Tuazon, respondents.‰

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VOL. 426, MARCH 23, 2004 177

Cerezo vs. Tuazon

„Therefore, petitioner having availed of a petition for relief, theremedy of an annulment of judgment is no longer available. Theproper action for the petitioner is to appeal the order of the lowercourt denying the petition for relief.

„Wherefore, the instant petition could not be given due courseand should accordingly be dismissed.

„SO ORDERED.‰18

On 20 January 2000, the Court of Appeals denied theCerezo spousesÊ motion for reconsideration.

19 The Court of

Appeals stated:

„A distinction should be made between a courtÊs jurisdiction over aperson and its jurisdiction over the subject matter of a case. Theformer is acquired by the proper service of summons or by thepartiesÊ voluntary appearance; while the latter is conferred by law.

Resolving the matter of jurisdiction over the subject matter,





Section 19(1) of B[atas] P[ambansa] 129 provides that RegionalTrial Courts shall exercise exclusive original jurisdiction in all civilactions in which the subject of the litigation is incapable ofpecuniary estimation. Thus, it was proper for the lower court todecide the instant case for damages.

Unlike jurisdiction over the subject matter of a case which isabsolute and conferred by law; any defects [sic] in the acquisition ofjurisdiction over a person (i.e., improper filing of civil complaint orimproper service of summons) may be waived by the voluntaryappearance of parties. The lower court admits the fact that nosummons was served on defendant Foronda. Thus, jurisdiction overthe person of defendant Foronda was not acquired, for which reasonhe was not held liable in this case. However, it has been proven thatjurisdiction over the other defendants was validly acquired by thecourt a quo.

The defendant spouses admit to having appeared in the initialhearings and in the hearing for plaintiffs motion to litigate as apauper. They even mentioned conferences where attempts weremade to reach an amicable settlement with plaintiff. However, thepossibility of amicable settlement is not a good and substantialdefense which will warrant the granting of said petition.

x x xAssuming arguendo that private respondent failed to reserve his

right to institute a separate action for damages in the criminalaction, the petitioner cannot now raise such issue and question thelower courtÊs jurisdiction because petitioner and her husband havewaived such right by

_______________

18 Rollo, pp. 36-37.

19 Ibid., pp. 33-34.

178


Cerezo vs. Tuazon

voluntarily appearing in the civil case for damages. Therefore, thefindings and the decision of the lower court may bind them.

Records show that the petitioner previously filed with the lowercourt a Petition for Relief from Judgment on the ground that they



1.

2.

3.

4.

were wrongfully declared in default while waiting for an amicablesettlement of the complaint for damages. The court a quo correctlyruled that such petition is without merit, jurisdiction having beenacquired by the voluntary appearance of defendant spouses.

Once again, it bears stressing that having availed of a petitionfor relief, the remedy of annulment of judgment is no longeravailable. Based on the foregoing, the motion for reconsiderationcould not be given due course and is hereby DENIED.

„SO ORDERED.‰20

The Issues

On 7 February 2000, Mrs. Cerezo, this time with Atty.Daga alone representing her, filed the present petition forreview on certiorari before this Court. Mrs. Cerezo claimsthat:

In dismissing the Petition for Annulment ofJudgment, the Court of Appeals assumes that theissues raised in the petition for annulment is basedon extrinsic fraud related to the denied petition forrelief notwithstanding that the grounds relied uponinvolves questions of lack of jurisdiction.

In dismissing the Petition for Annulment, the Courtof Appeals disregarded the allegation that the lowercourt[Âs] findings of negligence against defendant-driver Danilo Foronda [whom] the lower court didnot summon is null and void for want of due processand consequently, such findings of negligence whichis [sic] null and void cannot become the basis of thelower court to adjudge petitioner-employer liable forcivil damages.

In dismissing the Petition for Annulment, the Courtof Appeals ignored the allegation that defendant-driver Danilo A. Foronda whose negligence is themain issue is an indispensable party whosepresence is compulsory but [whom] the lower courtdid not summon.

In dismissing the Petition for Annulment, the Courtof Appeals ruled that assuming arguendo thatprivate respondent failed to reserve his right to




institute a separate action for damages in thecriminal action, the petitioner cannot now raisesuch issue and question the lower courtÊsjurisdiction because petitioner [has] waived suchright by voluntarily

_______________

20 Ibid., pp. 18-19.

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VOL. 426, MARCH 23, 2004 179

Cerezo vs. Tuazon

appearing in the civil case for damagesnotwithstanding that lack of jurisdiction cannot bewaived.

21

The CourtÊs Ruling

The petition has no merit. As the issues are interrelated,we shall discuss them jointly.

Remedies Available to a Party Declared in Default

An examination of the records of the entire proceedingsshows that three lawyers filed and signed pleadings onbehalf of Mrs. Cerezo, namely, Atty. Daga, Atty. Valera, andAtty. Cerezo. Despite their number, Mrs. CerezoÊs counselsfailed to avail of the proper remedies. It is either by sheerignorance or by malicious manipulation of legaltechnicalities that they have managed to delay thedisposition of the present case, to the detriment of pauperlitigant Tuazon.

Mrs. Cerezo claims she did not receive any copy of theorder declaring the Cerezo spouses in default. Mrs. Cerezoasserts that she only came to know of the default order on25 June 1995, when she received a copy of the decision. On10 July 1995, Mrs. Cerezo filed before the trial court a




petition for relief from judgment under Rule 38, alleging„fraud, mistake, or excusable negligence‰ as grounds. On 4March 1998, the trial court denied Mrs. CerezoÊs petitionfor relief from judgment. The trial court stated that Mrs.Cerezo could have availed of appeal as a remedy and thatshe failed to prove that the judgment was entered throughfraud, accident, mistake, or excusable negligence. Mrs.Cerezo then filed before the Court of Appeals a petition forcertiorari under Section 1 of Rule 65 assailing the denial ofthe petition for relief from judgment. On 21 January 1999,the Court of Appeals dismissed Mrs. CerezoÊs petition. On24 February 1999, the appellate court denied Mrs. CerezoÊsmotion for reconsideration. On 11 March 1999, Mrs. Cerezofiled before this Court a petition for review on certiorariunder Rule 45, questioning the denial of the petition forrelief from judgment. We denied the petition and ourresolution became final and executory on 28 June 1999.

_______________

21 Ibid., pp. 6-7.

180


Cerezo vs. Tuazon

On 6 July 1999, a mere eight days after our resolutionbecame final and executory, Mrs. Cerezo filed before theCourt of Appeals a petition for annulment of the judgmentof the trial court under Rule 47. Meanwhile, on 25 August1999, the trial court issued over the objection of Mrs.Cerezo an order of execution of the judgment in Civil CaseNo. 7415. On 21 October 1999, the Court of Appealsdismissed the petition for annulment of judgment. On 20January 2000, the Court of Appeals denied Mrs. CerezoÊsmotion for reconsideration. On 7 February 2000, Mrs.Cerezo filed the present petition for review on certiorariunder Rule 45 challenging the dismissal of her petition forannulment of judgment.

Lina v. Court of Appeals22

enumerates the remediesavailable to a party declared in default:




a)

b)

c)

d)

The defendant in default may, at any time afterdiscovery thereof and before judgment, file a motionunder oath to set aside the order of default on theground that his failure to answer was due to fraud,accident, mistake or excusable negligence, and thathe has a meritorious defense (Sec. 3, Rule 18 [nowSec. 3(b), Rule 9]);

If the judgment has already been rendered whenthe defendant discovered the default, but before thesame has become final and executory, he may file amotion for new trial under Section 1 (a) of Rule 37;

If the defendant discovered the default after thejudgment has become final and executory, he mayfile a petition for relief under Section 2 [now Section1] of Rule 38; and

He may also appeal from the judgment renderedagainst him as contrary to the evidence or to thelaw, even if no petition to set aside the order ofdefault has been presented by him (Sec. 2, Rule 41).(Emphasis added)

Moreover, a petition for certiorari to declare the nullity of ajudgment by default is also available if the trial courtimproperly declared a party in default, or even if the trialcourt properly declared a party in default, if grave abuse ofdiscretion attended such declaration.

23

_______________

22 No. L-63397, 9 April 1985, 135 SCRA 637.23 Pacete v. Cariaga, Jr., G.R. No. 53880, 17 March 1994, 231 SCRA

321. See also Matute v. Court of Appeals, 136 Phil. 162; 26 SCRA 768

(1969); Omico Mining and Industrial Corporation v. Vallejos, No. L-

38974, 25 March 1976, 63 SCRA 285.

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Cerezo vs. Tuazon

Mrs. Cerezo admitted that she received a copy of the trial




courtÊs decision on 25 June 1995. Based on this admission,Mrs. Cerezo had at least three remedies at her disposal: anappeal, a motion for new trial, or a petition for certiorari.

Mrs. Cerezo could have appealed under Rule 4124

fromthe default judgment within 15 days from notice of thejudgment. She could have availed of the power of the Courtof Appeals to try cases and conduct hearings, receiveevidence, and perform all acts necessary to resolve factualissues raised in cases falling within its appellatejurisdiction.

25

Mrs. Cerezo also had the option to file under Rule 3726

amotion for new trial within the period for taking an appeal.If the trial court grants a new trial, the original judgmentis vacated, and the action will stand for trial de novo. Therecorded evidence taken in the former trial, as far as thesame is material and competent to establish the issues,shall be used at the new trial without retaking the same.

27

Mrs. Cerezo also had the alternative of filing under Rule65

28 a petition for certiorari assailing the order of default

within 60 days

_______________

24 Section 3, Rule 41.25 Section 9(3), Batas Pambansa Blg. 129, as amended.26 Section 1. Grounds of and period for filing motion for new trial or

reconsideration.·Within the period for taking an appeal, the aggrieved

party may move the trial court to set aside the judgment or final order

and grant a new trial for one or more of the following causes materially

affecting the substantial rights of said party:

(a) Fraud, accident, mistake or excusable negligence which ordinary prudence

could not have guarded against and by reason of which such aggrieved party

has probably been impaired in his rights; or

(b) Newly discovered evidence, which he could not, with reasonable

diligence, have discovered and produced at the trial, and which if presented

would probably alter the result.

x x x

27 Sections 1 and 6, Rule 37.28 Section 1. Petition for certiorari.·When any tribunal, board, or

officer exercising judicial or quasi-judicial functions has acted without or

in excess of its or his jurisdiction, or with grave abuse of discretion








amounting to lack or excess of jurisdiction, and there is no appeal, or any

plain, speedy, and adequate remedy in the ordinary course of law, a

person

182


Cerezo vs. Tuazon

from notice of the judgment. An order of default isinterlocutory, and an aggrieved party may file anappropriate special civil action under Rule 65.

29 In a

petition for certiorari, the appellate court may declare voidboth the order of default and the judgment of default.

Clearly, Mrs. Cerezo had every opportunity to avail ofthese remedies within the reglementary periods providedunder the Rules of Court. However, Mrs. Cerezo opted tofile a petition for relief from judgment, which is availableonly in exceptional cases. A petition for relief fromjudgment should be filed within the reglementary period of60 days from knowledge of judgment and six months fromentry of judgment, pursuant to Rule 38 of the Rules of CivilProcedure.

30 Tuason v. Court of

_______________

aggrieved thereby may file a verified petition in the proper court, allegingthe

facts with certainty and praying that judgment be rendered annullingor

modifying the proceedings of such tribunal, board or officer, and granting such

incidental reliefs as law and justice may require.

x x x

Section 4. Where petition filed.·The petition may be filed not later than sixty

(60) days from notice of judgment, order or resolution sought to be assailed in

the Supreme Court; or, if it relates to the acts or omissions of a lower court or of

a corporation, board, officer or person, in the Regional Trial Court exercising

jurisdiction over the territorial area as defined by the Supreme Court. It may

also be filed in the Court of Appeals whether or not the same is in aid of its

appellate jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction.

If it involves acts or omissions of a quasi-judicial agency, and unless otherwise

provided by law or these Rules, the petition shall be filed in and cognizable

only by the Court of Appeals.





29 Section 1, Rule 41.30 Section 1. Petition for relief from judgment, order, or other pro-

ceedings.·When a judgment or final order is entered, or any other

proceeding is thereafter taken against a party in any court through

fraud, accident, mistake, or excusable negligence, he may file a petition

in such court and in the same case praying that the judgment, order or

proceeding be set aside.

Section 3. Time for filing petition; contents and verification.·A petition

provided for in either of the preceding sections of this Rule must be verified,

filed within sixty (60) days after the petitioner learns of the judgment, final

order, or other proceeding to be set aside, and not more than six (6) months

after such judgment or final order was entered, or such proceeding was taken;

x x x.

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VOL. 426, MARCH 23, 2004 183

Cerezo vs. Tuazon

Appeals31

explained the nature of a petition for relief fromjudgment:

When a party has another remedy available to him, which mayeither be a motion for new trial or appeal from an adverse decisionof the trial court, and he was not prevented by fraud, accident,mistake or excusable negligence from filing such motion or takingsuch appeal, he cannot avail himself of this petition. Indeed, reliefwill not be granted to a party who seeks avoidance from the effectsof the judgment when the loss of the remedy at law was due to hisown negligence; otherwise the petition for relief can be used torevive the right to appeal which has been lost thru inexcusablenegligence.

Evidently, there was no fraud, accident, mistake, orexcusable negligence that prevented Mrs. Cerezo fromfiling an appeal, a motion for new trial or a petition forcertiorari. It was error for her to avail of a petition for relieffrom judgment.

After our resolution denying Mrs. CerezoÊs petition forrelief became final and executory, Mrs. Cerezo, in her lastditch attempt to evade liability, filed before the Court ofAppeals a petition for annulment of the judgment of the




trial court. Annulment is available only on the grounds ofextrinsic fraud and lack of jurisdiction. If based on extrinsicfraud, a party must file the petition within four years fromits discovery, and if based on lack of jurisdiction, beforelaches or estoppel bars the petition. Extrinsic fraud is not avalid ground if such fraud was used as a ground, or couldhave been used as a ground, in a motion for new trial orpetition for relief from judgment.

32

Mrs. Cerezo insists that lack of jurisdiction, not extrinsicfraud, was her ground for filing the petition for annulmentof judgment. However, a party may avail of the remedy ofannulment of judgment under Rule 47 only if the ordinaryremedies of new trial, appeal, petition for relief fromjudgment, or other appropriate remedies are no longeravailable through no fault of the party.

33

_______________

See Turqueza v. Hernando, No. L-51626, 30 April 1980, 97 SCRA 483.

31 326 Phil. 169; 256 SCRA 158 (1996).

32 Sections 2 and 3, Rule 47.33 Cipriano M. Lazaro v. Rural Bank of Francisco Balagtas (Bulacan),

Inc. and The Register of Deeds of Valenzuela City, G.R. No. 139895, 15

August 2003; 409 SCRA 186; Teresita Villasor Manipor v. Spouses

184


Cerezo vs. Tuazon

Mrs. Cerezo could have availed of a new trial or appeal butthrough her own fault she erroneously availed of theremedy of a petition for relief, which was denied withfinality. Thus, Mrs. Cerezo may no longer avail of theremedy of annulment.

In any event, the trial court clearly acquired jurisdictionover Mrs. CerezoÊs person. Mrs. Cerezo activelyparticipated in the proceedings before the trial court,submitting herself to the jurisdiction of the trial court. Thedefense of lack of jurisdiction fails in light of her activeparticipation in the trial court proceedings. Estoppel or





laches may also bar lack of jurisdiction as a ground fornullity especially if raised for the first time on appeal by aparty who participated in the proceedings before the trialcourt, as what happened in this case.

34

For these reasons, the present petition should bedismissed for utter lack of merit. The extraordinary actionto annul a final judgment is restricted to the groundsspecified in the rules. The reason for the restriction is toprevent this extraordinary action from being used by alosing party to make a complete farce of a dulypromulgated decision that has long become final andexecutory. There would be no end to litigation if partieswho have unsuccessfully availed of any of the appropriateremedies or lost them through their fault could still bringan action for annulment of judgment.

35 Nevertheless, we

shall discuss the issues raised in the present petition toclear any doubt about the correctness of the decision of thetrial court.

Mrs. CerezoÊs Liability and the Trial CourtÊsAcquisition of Jurisdiction

Mrs. Cerezo contends that the basis of the present petitionfor annulment is lack of jurisdiction. Mrs. Cerezo assertsthat the trial court could not validly render judgment sinceit failed to acquire jurisdiction over Foronda. Mrs, Cerezopoints out that there was no service of summons onForonda. Moreover, Tuazon failed to reserve his right toinstitute a separate civil action for damages in the

_______________

Pablo and Antonia Ricafort, G.R. No. 150159, 25 July 2003, 407 SCRA

298.

34 Tijam v. Sibonghanoy, 181 Phil. 556; 23 SCRA 29 (1968).

35 See Ibabao v. Intermediate Appellate Court, No. L-74848, 20 May

1987, 150 SCRA 76.

185

VOL. 426, MARCH 23, 2004 185





Cerezo vs. Tuazon

criminal action. Such contention betrays a faultyfoundation. Mrs. CerezoÊs contention proceeds from thepoint of view of criminal law and not of civil law, while thebasis of the present action of Tuazon is quasi-delict underthe Civil Code, not delict under the Revised Penal Code.

The same negligent act may produce civil liabilityarising from a delict under Article 103 of the Revised PenalCode, or may give rise to an action for a quasi-delict underArticle 2180 of the Civil Code. An aggrieved party maychoose between the two remedies. An action based on aquasi-delict may proceed independently from the criminalaction.

36 There is, however, a distinction between civil

liability arising from a delict and civil liability arising froma quasi-delict. The choice of remedy, whether to sue for adelict or a quasi-delict, affects the procedural andjurisdictional issues of the action.

37

Tuazon chose to file an action for damages based on aquasidelict. In his complaint, Tuazon alleged that Mrs.Cerezo, „without exercising due care and diligence in thesupervision and management of her employees and buses,‰hired Foronda as her driver. Tuazon became disabledbecause of ForondaÊs „recklessness, gross negligence andimprudence,‰ aggravated by Mrs. CerezoÊs „lack of due careand diligence in the selection and supervision of heremployees, particularly Foronda.‰

38

The trial court thus found Mrs. Cerezo liable underArticle 2180 of the Civil Code. Article 2180 states in part:

Employers shall be liable for the damages caused by theiremployees and household helpers acting within the scope of theirassigned tasks, even though the former are not engaged in anybusiness or industry.

Contrary to Mrs. CerezoÊs assertion, Foronda is not anindispensable party to the case. An indispensable party isone whose interest is affected by the courtÊs action in thelitigation, and without

_______________

36 See Article 2177, Civil Code of the Philippines. Compare Sections 1






and 3, Rule 111, 1988 Rules of Criminal Procedure with Sections 1 and 3,

Rule 111, 2000 Rules of Criminal Procedure.37 See Barredo v. Garcia, 73 Phil. 607 (1942).38 CA Rollo, pp. 8-9.

186


Cerezo vs. Tuazon

whom no final resolution of the case is possible.39

However,Mrs. CerezoÊs liability as an employer in an action for aquasi-delict is not only solidary, it is also primary anddirect. Foronda is not an indispensable party to the finalresolution of TuazonÊs action for damages against Mrs.Cerezo.

The responsibility of two or more persons who are liablefor a quasi-delict is solidary.

40 Where there is a solidary

obligation on the part of debtors, as in this case, eachdebtor is liable for the entire obligation. Hence, each debtoris liable to pay for the entire obligation in full. There is nomerger or renunciation of rights, but only mutualrepresentation.

41 Where the obligation of the parties is

solidary, either of the parties is indispensable, and theother is not even a necessary party because complete reliefis available from either.

42 Therefore, jurisdiction over

Foronda is not even necessary as Tuazon may collectdamages from Mrs. Cerezo alone.

Moreover, an employerÊs liability based on a quasi-delictis primary and direct, while the employerÊs liability basedon a delict is merely subsidiary.

43 The words „primary and

direct,‰ as contrasted with „subsidiary,‰ refer to the remedyprovided by law for enforcing the obligation rather than tothe character and limits of the obligation.

44 Although

liability under Article 2180 originates from the negligentact of the employee, the aggrieved party may sue theemployer directly. When an employee causes damage, thelaw presumes that the employer has himself committed anact of negligence in not preventing or avoiding the damage.This is the fault that the law condemns. While theemployer is civilly liable in a subsidiary capacity for theemployeeÊs criminal negligence, the employer is also civilly









liable directly and separately for his own civil negligence infailing to exercise due diligence in selecting and

_______________

39 Imson v. Court of Appeals, G.R. No. 106436, 8 December 1994, 239

SCRA 59.40 Article 2194, Civil Code of the Philippines.41 Quiombing v. Court of Appeals, G.R. No. 93219, 30 August 1990,

189 SCRA 331 (citing Tolentino, IV Civil Code of the Philippines 218

[1985 ed.])

42 Ibid., (citing Feria, Civil Procedure 153 [1969 ed.]).

43 Poblete v. Fabros, No. L-29803, 14 September 1979, 93 SCRA 200.44 33A Words and Phrases 215 (1971 ed.)

187

VOL. 426, MARCH 23, 2004 187

Cerezo vs. Tuazon

supervising his employee. The idea that the employerÊsliability is solely subsidiary is wrong.

45

The action can be brought directly against the person responsible(for another), without including the author of the act. The actionagainst the principal is accessory in the sense that it implies theexistence of a prejudicial act committed by the employee, but it isnot subsidiary in the sense that it can not be instituted till after thejudgment against the author of the act or at least, that it issubsidiary to the principal action; the action for responsibility (ofthe employer) is in itself a principal action.

46

Thus, there is no need in this case for the trial court toacquire jurisdiction over Foronda. The trial courtÊsacquisition of jurisdiction over Mrs. Cerezo is sufficient todispose of the present case on the merits.

In contrast, an action based on a delict seeks to enforcethe subsidiary liability of the employer for the criminalnegligence of the employee as provided in Article 103 of theRevised Penal Code. To hold the employer liable in asubsidiary capacity under a delict, the aggrieved partymust initiate a criminal action where the employeeÊs delict





and corresponding primary liability are established.47

If thepresent action proceeds from a delict, then the trial courtÊsjurisdiction over Foronda is necessary. However, thepresent action is clearly for the quasi-delict of Mrs. Cerezoand not for the delict of Foronda.

The Cerezo spousesÊ contention that summons be servedanew on them is untenable in light of their participation inthe trial court proceedings. To uphold the Cerezo spousesÊcontention would make a fetish of a technicality.

48

Moreover, any irregularity in the service of summons thatmight have vitiated the trial courtÊs juris-

_______________

45 See Barredo v. Garcia, supra note 37 (1942) (citing Amandi, 4

Cuestionario del Código Civil Reformado 429, 430).46 Ibid., (citing Laurent, 20 Principles of French Civil Law 734-735

[Spanish translation]).47 Poblete v. Fabros, supra note 43; Franco v. Intermediate Appellate

Court, G.R. No. 71137, 5 October 1989, 178 SCRA 331.48 Gumabay v. Baralin, No. L-30683, 77 SCRA 258, 31 May 1977; Rule

14, Section 20.

188


Cerezo vs. Tuazon

diction over the persons of the Cerezo spouses was deemedwaived when the Cerezo spouses filed a petition for relieffrom judgment.

49

We hold that the trial court had jurisdiction and wascompetent to decide the case in favor of Tuazon and againstMrs. Cerezo even in the absence of Foronda. Contrary toMrs. CerezoÊs contention, Foronda is not an indispensableparty to the present case. It is not even necessary forTuazon to reserve the filing of a separate civil actionbecause he opted to file a civil action for damages againstMrs. Cerezo who is primarily and directly liable for herown civil negligence. The words of Justice Jorge Bocobo inBarredo v. Garcia still hold true today as much as it did in1942:






x x x [T]o hold that there is only one way to make defendantÊsliability effective, and that is, to sue the driver and exhaust his (thelatterÊs) property first, would be tantamount to compelling theplaintiff to follow a devious and cumbersome method of obtainingrelief. True, there is such a remedy under our laws, but there is alsoa more expeditious way, which is based on the primary and directresponsibility of the defendant under article [2180] of the CivilCode. Our view of the law is more likely to facilitate remedy for civilwrongs, because the procedure indicated by the defendant iswasteful and productive of delay, it being a matter of commonknowledge that professional drivers of taxis and other similarpublic conveyances do not have sufficient means with which to paydamages. Why, then, should the plaintiff be required in all cases togo through this roundabout, unnecessary, and probably uselessprocedure? In construing the laws, courts have endeavored toshorten and facilitate the pathways of right and justice.

50

Interest at the rate of 6% per annum is due on the amountof damages adjudged by the trial court.

51 The 6% per

annum interest shall commence from 30 May 1995, thedate of the decision of the trial court. Upon finality of thisdecision, interest at 12% per annum, in lieu of 6% perannum, is due on the amount of damages adjudged by thetrial court until full payment.

WHEREFORE, we DENY the instant petition forreview. The Resolution dated 21 October 1999 of the Courtof Appeals in CA-

_______________

49 See J.M. Tuason & Co., Inc. v. Estabillo, No. L-20610, 9 January

1975, 62 SCRA 1.50 Barredo v. Garcia, supra note 36, pp. 620-621.51 Eastern Shipping Lines, Inc. v. Court of Appeals, G.R. No. 97412, 12

July 1994, 234 SCRA 78; Reformina v. Tomol, Jr., No. L-59096, 11

October 1985, 139 SCRA 260.

189

VOL. 426, MARCH 23, 2004 189

L.T. Datu & Co., Inc. vs. Sy





G.R. SP No. 53572, as well as its Resolution dated 20January 2000 denying the motion for reconsideration, isAFFIRMED with the MODIFICATION that the amountdue shall earn legal interest at 6% per annum computedfrom 30 May 1995, the date of the trial courtÊs decision.Upon finality of this decision, the amount due shall earninterest at 12% per annum, in lieu of 6% per annum, untilfull payment.

SO ORDERED.

Davide, Jr. (C.J., Chairman), Ynares-Santiago andAzcuna, JJ., concur.

Panganiban, J., On Official Leave.

Judgment affirmed with modification.

Note.·The annulment of a judgment may be based onlyon the grounds of extrinsic fraud and lack of jurisdiction.(Republic vs. Heirs of Sancho Magdato, 340 SCRA 115[2000])

··o0o··



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Rodriguez vs. Ponferrada

23

MARY ANN RODRIGUEZ, petitioner, vs. Hon. THELMAA. PONFERRADA, in Her Official Capacity as PresidingJudge of the Regional Trial Court of Quezon City, Branch104; PEOPLE OF THE PHILIPPINES; and GLADYSNOCOM, respondents.

Actions; Criminal Law; Criminal Procedure; Parties; Anoffended party may intervene in the prosecution of a crime;Exceptions.·Based on the foregoing rules, an offended party mayintervene in the prosecution of a crime, except in the followinginstances: (1) when, from the nature of the crime and the lawdefining and punishing it, no civil liability arises in favor of aprivate offended party; and (2) when, from the nature of the offense,the offended parties are entitled to civil indemnity, but (a) theywaive the right to institute a civil action, (b) expressly reserve theright to do so, or (c) the suit has already been instituted. In any ofthese instances, the private complainantÊs interest in the casedisappears and criminal prosecution becomes the sole function ofthe public prosecutor. None of these exceptions apply to the instantcase. Hence, the private prosecutor cannot be barred fromintervening in the estafa suit.

Same; Same; Estafa; Bouncing Checks Law (B.P. 22); While thesingle act of issuing a bouncing check may give rise to two distinctcriminal offenses·estafa and violation of B.P. 22·the same involves

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* THIRD DIVISION.



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only one civil liability for the offended party since he sustained onlya single injury.·True, each of the overt acts in these instances maygive rise to two criminal liabilities·one for estafa and another forviolation of BP 22. But every such act of issuing a bouncing checkinvolves only one civil liability for the offended party, who hassustained only a single injury. This is the import of Banal v. Tadeo,which we quote in part as follows: „Generally, the basis of civilliability arising from crime is the fundamental postulate of our lawthat ÂEvery man criminally liable is also civilly liableÊ (Art. 100, TheRevised Penal Code). Underlying this legal principle is thetraditional theory that when a person commits a crime he offendstwo entities namely (1) the society in which he lives in or thepolitical entity called the State whose law he had violated; and (2)the individual member of that society whose person, right, honor,chastity or property was actually or directly injured or damaged bythe same punishable act or omission. However, this rather broadand general provision is among the most complex and controversialtopics in criminal procedure. It can be misleading in its implicationsespecially where the same act or omission may be treated as a crimein one instance and as a tort in another or where the law allows aseparate civil action to proceed independently of the course of thecriminal prosecution with which it is intimately intertwined. Manylegal scholars treat as a misconception or fallacy the generallyaccepted notion that the civil liability actually arises from the crimewhen, in the ultimate analysis, it does not. While an act or omissionis felonious because it is punishable by law, it gives rise to civilliability not so much because it is a crime but because it causeddamage to another. Viewing things pragmatically, we can readilysee that what gives rise to the civil liability is really the obligationand the moral duty of everyone to repair or make whole the damagecaused to another by reason of his own act or omission, doneintentionally or negligently, whether or not the same be punishableby law. In other words, criminal liability will give rise to civilliability only if the same felonious act or omission results in damageor injury to another and is the direct and proximate cause thereof.



Damage or injury to another is evidently the foundation of the civilaction. Such is not the case in criminal actions for, to be criminallyliable, it is enough that the act or omission complained of ispunishable, regardless of whether or not it also causes materialdamage to another. (See Sangco, Philippine Law on Torts andDamages, 1978, Revised Edition, pp. 246-247).‰

340



Same; Same; Same; Same; Forum Shopping; The possible singleliability arising from the act of issuing a bouncing check can be thesubject of both civil actions deemed instituted with the estafa caseand the BP 22 violation prosecution, and as both remedies aresimultaneously available to such party, there can be no forumshopping.·The possible single civil liability arising from the act ofissuing a bouncing check can be the subject of both civil actionsdeemed instituted with the estafa case and the BP 22 violationprosecution. In the crimes of both estafa and violation of BP 22,Rule 111 of the Rules of Court expressly allows, even automaticallyin the present case, the institution of a civil action without need ofelection by the offended party. As both remedies are simultaneouslyavailable to this party, there can be no forum shopping.

Same; Same; Same; Same; Doctrine of Election of Remedies;Words and Phrases; In its broad sense, election of remedies refers tothe choice by a party to an action of one of two or more coexistingremedial rights, where several such rights arise out of the samefacts, but the term has been generally limited to a choice by a partybetween inconsistent remedial rights, the assertion of one beingnecessarily repugnant to, or a repudiation of, the other.·Petitioneris actually raising the doctrine of election of remedies. „In its broadsense, election of remedies refers to the choice by a party to anaction of one of two or more coexisting remedial rights, whereseveral such rights arise out of the same facts, but the term hasbeen generally limited to a choice by a party between inconsistentremedial rights, the assertion of one being necessarily repugnant to,or a repudiation of, the other.‰ In its more restricted and technicalsense, the election of remedies is the adoption of one of two or more



coexisting ones, with the effect of precluding a resort to the others.

Same; Same; Same; Same; Same; While some Americanauthorities hold that the mere initiation of proceedings constitutes abinding choice of remedies that precludes pursuit of alternativecourses, the better rule is that no binding election occurs before adecision on the merits is had or a detriment to the other partysupervenes.·The Court further elucidates in Mellon Bank v.Magsino as follows: „As a technical rule of procedure, the purpose ofthe doctrine of election of remedies is not to prevent recourse to anyremedy, but to prevent double redress for a single wrong. It isregarded as an application of the law of estoppel, upon the theorythat a party can-

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not, in the assertion of his right occupy inconsistent positions whichform the basis of his respective remedies. However, when a certainstate of facts under the law entitles a party to alternative remedies,both founded upon the identical state of facts, these remedies arenot considered inconsistent remedies. In such case, the invocation ofone remedy is not an election which will bar the other, unless thesuit upon the remedy first invoked shall reach the stage of finaladjudication or unless by the invocation of the remedy first soughtto be enforced, the plaintiff shall have gained an advantage therebyor caused detriment or change of situation to the other. It must bepointed out that ordinarily, election of remedies is not made untilthe judicial proceedings has gone to judgment on the merits.„Consonant with these rulings, this Court, through Justice J.B.L.Reyes, opined that while some American authorities hold that themere initiation of proceedings constitutes a binding choice ofremedies that precludes pursuit of alternative courses, the betterrule is that no binding election occurs before a decision on the meritsis had or a detriment to the other party supervenes. This is becausethe principle of election of remedies is discordant with the modernprocedural concepts embodied in the Code of Civil Procedure whichpermits a party to seek inconsistent remedies in his claim for relief



without being required to elect between them at the pleading stage ofthe litigation.‰ Same; Same; Same; Same; Same; Nothing in theRules signifies that the necessary inclusion of a civil action in acriminal case for violation of the Bouncing Checks Law precludesthe institution in an estafa case of the corresponding civil action,even if both offenses relate to the issuance of the same check.·In thepresent cases before us, the institution of the civil actions with theestafa cases and the inclusion of another set of civil actions with theBP 22 cases are not exactly repugnant or inconsistent with eachother. Nothing in the Rules signifies that the necessary inclusion ofa civil action in a criminal case for violation of the Bouncing ChecksLaw precludes the institution in an estafa case of the correspondingcivil action, even if both offenses relate to the issuance of the samecheck.

Same; Same; Same; Same; Filing Fees; While ordinarily nofiling fees were charged for actual damages in criminal cases, therule on the necessary inclusion of a civil action with the payment offiling fees based on the face value of the check involved was laiddown to prevent the practice of creditors of using the threat of acriminal

342



prosecution to collect on their credit free of charge.·The purpose ofSection 1(b) of Rule 111 is explained by Justice Florenz D. Regalado(ret.), former chairman of the committee tasked with the revision ofthe Rules of Criminal Procedure. He clarified that the special ruleon BP 22 cases was added, because the dockets of the courts wereclogged with such litigations; creditors were using the courts ascollectors. While ordinarily no filing fees were charged for actualdamages in criminal cases, the rule on the necessary inclusion of acivil action with the payment of filing fees based on the face value ofthe check involved was laid down to prevent the practice ofcreditors of using the threat of a criminal prosecution to collect ontheir credit free of charge. Clearly, it was not the intent of thespecial rule to preclude the prosecution of the civil action that



corresponds to the estafa case, should the latter also be filed. Thecrimes of estafa and violation of BP 22 are different and distinctfrom each other. There is no identity of offenses involved, for whichlegal jeopardy in one case may be invoked in the other. The offensescharged in the informations are perfectly distinct from each other inpoint of law, however nearly they may be connected in point of fact.

Same; Same; Same; Same; What Section 1(b), Rule 111 of theRules of Court prohibits is the reservation to file the correspondingcivil action; The fact that the Rules do not allow the reservations ofcivil action in BP 22 cases cannot deprive the private complainant ofthe right to protect her interests in the criminal action for estafa·inpromulgating the Rules, the Supreme Court did not intend to leavethe offended parties without any remedy to protect their interests inestafa cases.·What Section 1(b) of the Rules of Court prohibits isthe reservation to file the corresponding civil action. The criminalaction shall be deemed to include the corresponding civil action.„[U]nless a separate civil action has been filed before the institutionof the criminal action, no such civil action can be instituted after thecriminal action has been filed as the same has been includedtherein.‰ In the instant case, the criminal action for estafa wasadmittedly filed prior to the criminal case for violation of BP 22,with the corresponding filing fees for the inclusion of thecorresponding civil action paid accordingly. Furthermore, the factthat the Rules do not allow the reservation of civil actions in BP 22cases cannot deprive private complainant of the right to protect herinterests in the criminal action for estafa. Nothing in the currentlaw or rules on BP 22 vests the jurisdiction of the correspondingcivil case exclusively in the

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court trying the BP 22 criminal case. In promulgating the Rules,this Court did not intend to leave the offended parties without anyremedy to protect their interests in estafa cases. Its power topromulgate the Rules of Court is limited in the sense that rules„shall not diminish, increase or modify substantive rights.‰ Private



complainantÊs intervention in the prosecution of estafa is justifiednot only for the prosecution of her interests, but also for the speedyand inexpensive administration of justice as mandated by theConstitution.

Same; Same; Same; Same; Unjust Enrichment; A recovery bythe offended party under one remedy necessarily bars that under theother·obviously stemming from the fundamental rule againstunjust enrichment, this is in essence the rationale for theproscription in our law against double recovery for the same act oromission.·The trial court was, therefore, correct in holding thatthe private prosecutor may intervene before the RTC in theproceedings for estafa, despite the necessary inclusion of thecorresponding civil action in the proceedings for violation of BP 22pending before the MTC. A recovery by the offended party underone remedy, however, necessarily bars that under the other.Obviously stemming from the fundamental rule against unjustenrichment, this is in essence the rationale for the proscription inour law against double recovery for the same act or omission.

SPECIAL CIVIL ACTION in the Supreme Court.Certiorari.

The facts are stated in the opinion of the Court. RRV Legal Consultancy Firm for petitioner. The Solicitor General for the People.

PANGANIBAN, J.:

Settled is the rule that the single act of issuing a bouncingcheck may give rise to two distinct criminal offenses: estafaand violation of Batas Pambansa Bilang 22 (BP 22). TheRules of Court allow the offended party to intervene via aprivate prosecutor in each of these two penal proceedings.However, the recovery of the single civil liability arisingfrom the single act of issuing a bouncing check in either

344



criminal case bars the recovery of the same civil liability in



the other criminal action. While the law allows twosimultaneous civil remedies for the offended party, itauthorizes recovery in only one. In short, while two crimesarise from a single set of facts, only one civil liabilityattaches to it.

The Case

Before us is a Petition for Certiorari1 under Rule 65 of the

Rules of Court, seeking to reverse the July 27, 2002 Order2

of the Regional Court (RTC) of Quezon City (Branch 104) inCriminal Case Nos. Q-01-106256 to Q-01-106259. Alsoassailed is the August 16, 2002 Order

3 of the RTC denying

petitionerÊs Motion for Reconsideration. The first assailedOrder is quoted in full as follows:

„For consideration is the opposition of the accused, through counsel,to the formal entry of appearance of private prosecutor. „Accused,through counsel, contends that the private prosecutor is barredfrom appearing before this Court as his appearance is limited to thecivil aspect which must be presented and asserted in B.P. 22 casespending before the Metropolitan Trial Court of Quezon City.

„The private prosecutor submitted comment stating that theoffended party did not manifest within fifteen (15) days followingthe filing of the information that the civil liability arising from thecrime has been or would be separately prosecuted and that sheshould therefore be required to pay the legal fees pursuant toSection 20 of Rule 141 of the Rules of Court, as amended.

„Considering that the prosecution under B.P. 22 is withoutprejudice to any liability for violation of any provision of theRevised Penal Code (BP 22, Sec. 5), the civil action for the recoveryof the civil liability arising from the estafa cases pending before thisCourt is deemed instituted with the criminal action (Rule 111, Sec.1 [a]).

_______________

1 Rollo, pp. 3-22.

2 Id., p. 23. Penned by Judge Thelma A. Ponferrada.

3 Id., p. 24-27.

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The offended party may thus intervene by counsel in theprosecution of the offense (Rule 110, Sec. 16).

„WHEREFORE, the appearance of a private prosecutor shall beallowed upon payment of the legal fees for these estafa casespending before this Court pursuant to Section 1 of Rule 141 of theRules of Court, as amended.‰

4

The Facts

The undisputed facts are narrated by petitioner as follows:

„On 10 December 2001, the Honorable Assistant City ProsecutorRossana S. Morales-Montojo of Quezon City ProsecutorÊs Officeissued her Resolution in I.S. No. 01-15902, the dispositive portion ofwhich reads as follows:

ÂPremises considered, there being PROBABLE CAUSE to charge

respondent for ESTAFA under Article 315 paragraph 2(d) as amended by

PD 818 and for Violation of Batas Pambansa Blg. 22, it is respectfully

recommended that the attached Information be approved and filed in

Court.Ê

„As a consequence thereof, separate informations wereseparately filed against herein [p]etitioner before proper [c]ourts,for Estafa and [v]iolation of Batas Pambansa Blg. 22.

„Upon payment of the assessed and required docket fees by the[p]rivate [c]omplainant, the informations for [v]iolation of BatasPambansa Blg. 22 against herein [p]etitioner were filed and raffledto the Metropolitan Trial Court of Quezon City, Branch 42, docketedas Criminal Cases Nos. 0108033 to 36.

„On the other hand, the informations for [e]stafa cases againstherein [p]etitioner were likewise filed and raffled to the RegionalTrial Court of Quezon City, Branch 104, docketed as Criminal CasesNos. 01-106256 to 59.

„On 17 June 2002, petitioner through counsel filed in open courtbefore the [p]ublic [r]espondent an ÂOpposition to the Formal Entryof Appearance of the Private ProsecutorÊ dated 14 June 2002.

_______________




4 June 27, 2002 Order; Rollo, p. 23.

346



„The [p]ublic [r]espondent court during the said hearing noted theFormal Entry of Appearance of Atty. Felix R. Solomon as [p]rivate[p]rosecutor as well as the Opposition filed thereto by herein[p]etitioner. x x x.

„As ordered by the Court, [p]rivate [c]omplainant throughcounsel filed her Comment to the Opposition of herein [p]etitioner.

„On 27 June 2002, the [p]ublic [r]espondent court issued the firstassailed Order allowing the appearance of the [p]rivate [p]rosecutorin the above-entitled criminal cases upon payment of the legal feespursuant to Section 1 of Rule 141 of the Rules of Court, asamended.

„On 31 July 2002, [a]ccused through counsel filed a Motion forReconsideration dated 26 July 2002.

„On 16 August 2002, the [p]ublic [r]espondent court issued thesecond assailed Order denying the Motion for Reconsideration ofherein [p]etitioner.‰

5

Ruling of the Trial Court

Noting petitionerÊs opposition to the private prosecutorÊsentry of appearance, the RTC held that the civil action forthe recovery of civil liability arising from the offensecharged is deemed instituted, unless the offended party (1)waives the civil action, (2) reserves the right to institute itseparately, or (3) institutes the civil action prior to thecriminal action. Considering that the offended party hadpaid the corresponding filing fee for the estafa cases priorto the filing of the BP 22 cases with the Metropolitan TrialCourt (MeTC), the RTC allowed the private prosecutor toappear and intervene in the proceedings.

Hence, this Petition.6

_______________





5 PetitionerÊs Memorandum, pp. 3-5; Rollo, pp. 153-155.6 The case was deemed submitted for decision on May 28, 2004, upon

receipt by this Court of PetitionerÊs Memorandum signed by Atty.

Redemberto R. Villanueva. RespondentÊs Manifestation and Motion For

Leave to Adopt Comment as Memorandum, signed by Assistant Solicitor

General Fernanda Lampas Peralta and Associate

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VOL. 465, JULY 29, 2005 347


Issues

Petitioner raises this sole issue for the CourtÊsconsideration:

„Whether or not a [p]rivate [p]rosecutor can be allowed to interveneand participate in the proceedings of the above-entitled [e]stafacases for the purpose of prosecuting the attached civil liabilityarising from the issuance of the checks involved which is alsosubject matter of the pending B.P. 22 cases.‰

7

The CourtÊs Ruling

The Petition has no merit.

Sole Issue: Civil Action in BP 22 Case Not a Bar to Civil Action in Estafa Case

Petitioner theorizes that the civil action necessarily arisingfrom the criminal case pending before the MTC forviolation of BP 22 precludes the institution of thecorresponding civil action in the criminal case for estafanow pending before the RTC. She hinges her theory on thefollowing provisions of Rules 110 and 111 of the Rules ofCourt:

„SECTION 16. Intervention of the offended party in criminal action.·Where the civil action for recovery of civil liability is instituted inthe criminal action pursuant to Rule 111, the offended party may




intervene by counsel in the prosecution of the offense.‰„SECTION 1. Institution of criminal and civil actions.·(a) When

a criminal action is instituted, the civil action for the recovery ofcivil liability arising from the offense charged shall be deemedinstituted with the criminal action unless the offended party waives

_______________

Solicitor Josephine de Sagon Mejia, was received by the Court on August 20,

2003.

7 PetitionerÊs Memorandum, p. 5; Rollo, p. 155.

348



the civil action, reserves the right to institute it separately orinstitutes the civil action prior to the criminal action.

„The reservation of the right to institute separately the civilaction shall be made before the prosecution starts presenting itsevidence and under circumstances affording the offended party areasonable opportunity to make such reservation.

„When the offended party seeks to enforce civil liability againstthe accused by way of moral, nominal, temperate, or exemplarydamages without specifying the amount thereof in the complaint orinformation, the filing fees therefor shall constitute a first lien onthe judgment awarding such damages.

x x x x x x x x x„(b) The criminal action for violation of Batas Pambansa Blg. 22

shall be deemed to include the corresponding civil action. Noreservation to file such civil action separately shall be allowed.

„Upon filing of the aforesaid joint criminal and civil actions, theoffended party shall pay in full the filing fees based on the amountof the check involved, which shall be considered as the actualdamages claimed. Where the complaint or information also seeks torecover liquidated, moral, nominal, temperate or exemplarydamages, the offended party shall pay the filing fees based on theamounts alleged therein. If the amounts are not so alleged but anyof these damages are subsequently awarded by the court, the filingfees based on the amount awarded shall constitute a first lien onthe judgment.



„Where the civil action has been filed separately and trial thereofhas not yet commenced, it may be consolidated with the criminalaction upon application with the court trying the latter case. If theapplication is granted, the trial of both actions shall proceed inaccordance with section 2 of this Rule governing consolidation of thecivil and criminal actions.‰

Based on the foregoing rules, an offended party mayintervene in the prosecution of a crime, except in thefollowing instances: (1) when, from the nature of the crimeand the law defining and punishing it, no civil liabilityarises in favor of a private offended party; and (2) when,from the nature of the offense, the offended parties areentitled to civil indemnity, but (a) they waive the right toinstitute a civil action, (b) ex-

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pressly reserve the right to do so, or (c) the suit has alreadybeen instituted. In any of these instances, the privatecomplainantÊs interest in the case disappears and criminalprosecution becomes the sole function of the publicprosecutor.

8 None of these exceptions apply to the instant

case. Hence, the private prosecutor cannot be barred fromintervening in the estafa suit.

True, each of the overt acts in these instances may giverise to two criminal liabilities·one for estafa and anotherfor violation of BP 22. But every such act of issuing abouncing check involves only one civil liability for theoffended party, who has sustained only a single injury.

9

This is the import of Banal v. Tadeo,10

which we quote inpart as follows:

„Generally, the basis of civil liability arising from crime is thefundamental postulate of our law that ÂEvery man criminally liableis also civilly liableÊ (Art. 100, The Revised Penal Code). Underlyingthis legal principle is the traditional theory that when a personcommits a crime he offends two entities namely (1) the society inwhich he lives in or the political entity called the State whose law






he had violated; and (2) the individual member of that societywhose person, right, honor, chastity or property was actually ordirectly injured or damaged by the same punishable act or omission.However, this rather broad and general provision is among the mostcomplex and controversial topics in criminal procedure. It can bemisleading in its implications especially where the same act oromission may be treated as a crime in one instance and as a tort inanother or where the law allows a separate civil action to proceedindependently of the course of the criminal prosecution with whichit is intimately intertwined. Many legal scholars treat as amisconception or fallacy the generally accepted notion that the civilliability actually arises from the crime when, in the ultimateanalysis, it does not. While an act or omission is felonious because itis punishable by law, it gives rise to civil liability not so muchbecause it is a crime

_______________

8 Gorospe v. Gamaitan, 98 Phil. 600, 602, March 14, 1956.

9 See Joseph v. Bautista, 170 SCRA 540, February 23, 1989.

10 156 SCRA 325, 329-330, December 11, 1987, per Gutierrez Jr., J.

350



but because it caused damage to another. Viewing thingspragmatically, we can readily see that what gives rise to the civilliability is really the obligation and the moral duty of everyone torepair or make whole the damage caused to another by reason of hisown act or omission, done intentionally or negligently, whether ornot the same be punishable by law. In other words, criminal liabilitywill give rise to civil liability only if the same felonious act oromission results in damage or injury to another and is the directand proximate cause thereof. Damage or injury to another isevidently the foundation of the civil action. Such is not the case incriminal actions for, to be criminally liable, it is enough that the actor omission complained of is punishable, regardless of whether ornot it also causes material damage to another. (See Sangco,Philippine Law on Torts and Damages, 1978, Revised Edition, pp.246-247).‰



Thus, the possible single civil liability arising from the actof issuing a bouncing check can be the subject of both civilactions deemed instituted with the estafa case and the BP22 violation prosecution. In the crimes of both estafa andviolation of BP 22, Rule 111 of the Rules of Court expresslyallows, even automatically in the present case, theinstitution of a civil action without need of election by theoffended party. As both remedies are simultaneouslyavailable to this party, there can be no forum shopping.

11

Hence, this Court cannot agree with what petitionerultimately espouses. At the present stage, no judgment onthe civil liability has been rendered in either criminal case.There is as yet no call for the offended party to electremedies and, after choosing one of them, be consideredbarred from others available to her.

Election of Remedies

Petitioner is actually raising the doctrine of election ofremedies. „In its broad sense, election of remedies refers tothe choice by a party to an action of one of two or morecoex-

_______________

11 See Cancio v. Isip, 391 SCRA 393, November 12, 2002.

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VOL. 465, JULY 29, 2005 351


isting remedial rights, where several such rights arise outof the same facts, but the term has been generally limitedto a choice by a party between inconsistent remedial rights,the assertion of one being necessarily repugnant to, or arepudiation of, the other.‰

12 In its more restricted and

technical sense, the election of remedies is the adoption ofone of two or more coexisting ones, with the effect ofprecluding a resort to the others.

13

The Court further elucidates in Mellon Bank v.Magsino

14 as follows:







„As a technical rule of procedure, the purpose of the doctrine ofelection of remedies is not to prevent recourse to any remedy, but toprevent double redress for a single wrong.

15 It is regarded as an

application of the law of estoppel, upon the theory that a partycannot, in the assertion of his right occupy inconsistent positionswhich form the basis of his respective remedies. However, when acertain state of facts under the law entitles a party to alternativeremedies, both founded upon the identical state of facts, theseremedies are not considered inconsistent remedies. In such case,the invocation of one remedy is not an election which will bar theother, unless the suit upon the remedy first invoked shall reach thestage of final adjudication or unless by the invocation of the remedyfirst sought to be enforced, the plaintiff shall have gained anadvantage thereby or caused detriment or change of situation to theother.

16 It must be

_______________

12 Mellon Bank, N.A. v. Magsino, 190 SCRA 633, 649, October 18, 1990, per

Fernan, CJ.

13 Id., citing People v. Court of Appeals, No. 54641, November 28, 1980, 101

SCRA 450, 463-464 citing Whitney v. Vermon [Tex. Civ. A] 154, 264, 267 and

Southern R. Co. v. Attalla, 147 Ala. 653, 41 S. 664.

14 Ibid.

15 Royal Resources, Inc. v. Gibraltar Financial Corp., 603 P. 2d 793.

16 Giron v. Housing Authority of Opelousas, 393 So. 2d 1267.

352



pointed out that ordinarily, election of remedies is not made untilthe judicial proceedings has gone to judgment on the merits.

17

„Consonant with these rulings, this Court, through Justice J.B.L.Reyes, opined that while some American authorities hold that themere initiation of proceedings constitutes a binding choice ofremedies that precludes pursuit of alternative courses, the betterrule is that no binding election occurs before a decision on the meritsis had or a detriment to the other party supervenes.

18 This is because

the principle of election of remedies is discordant with the modernprocedural concepts embodied in the Code of Civil Procedure which







permits a party to seek inconsistent remedies in his claim for reliefwithout being required to elect between them at the pleading stage ofthe litigation.‰

19

In the present cases before us, the institution of the civilactions with the estafa cases and the inclusion of anotherset of civil actions with the BP 22 cases are not exactlyrepugnant or inconsistent with each other. Nothing in theRules signifies that the necessary inclusion of a civil actionin a criminal case for violation of the Bouncing ChecksLaw

20 precludes the institution in an estafa case of the

corresponding civil action, even if both offenses relate tothe issuance of the same check.

The purpose of Section 1(b) of Rule 111 is explained byJustice Florenz D. Regalado (ret.), former chairman of thecommittee tasked with the revision of the Rules of CriminalProcedure. He clarified that the special rule on BP 22 caseswas added, because the dockets of the courts were cloggedwith such litigations; creditors were using the courts ascollectors. While ordinarily no filing fees were charged foractual damages in criminal cases, the rule on the necessaryinclusion

_______________

17 Colonial Leasing Co. of New England, Inc. v. Tracy, 557 P. 2d 639,

276 Or. 1193; Johnson v. DaveÊs Auto Center, 257 Or. 34, 476 P. 2d 190.18 Radiowealth, Inc. v Lavin, L-18563, April 27, 1963, 7 SCRA 804.19 Giron v. Housing Authority of the City of Opelousas, supra.20 Batas Pambansa Blg. 22.

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VOL. 465, JULY 29, 2005 353


of a civil action with the payment of filing fees based on theface value of the check involved was laid down to preventthe practice of creditors of using the threat of a criminalprosecution to collect on their credit free of charge.

21

Clearly, it was not the intent of the special rule topreclude the prosecution of the civil action that corresponds






to the estafa case, should the latter also be filed. Thecrimes of estafa and violation of BP 22 are different anddistinct from each other. There is no identity of offensesinvolved, for which legal jeopardy in one case may beinvoked in the other. The offenses charged in theinformations are perfectly distinct from each other in pointof law, however nearly they may be connected in point offact.

22

What Section 1(b) of the Rules of Court prohibits is thereservation to file the corresponding civil action. Thecriminal action shall be deemed to include thecorresponding civil action. „[U]nless a separate civil actionhas been filed before the institution of the criminal action,no such civil action can be instituted after the criminalaction has been filed as the same has been includedtherein.‰

23 In the instant case, the criminal action for estafa

was admittedly filed prior to the criminal case for violationof BP 22, with the corresponding filing fees for theinclusion of the corresponding civil action paidaccordingly.

24

_______________

21 Florenz D. Regalado, Remedial Law Compendium, Vol. II, 9th

revised ed., pp. 293-294.22 Ada v. Virola, 172 SCRA 336, 341, April 17, 1989.23 Agpalo, Handbook on Criminal Procedure (2001), pp. 96-97.

Emphasis supplied.24 Section 20, Rule 141 of the Rules of Court provides:

„Section 20. Other Fees.·The following fees shall also be collected by the clerks

of Regional Trial Courts or courts of the first level, as the case may be:

(a) In estafa cases where the offended party fails to manifest within fifteen

(15) days following the filing of the in-

354



Furthermore, the fact that the Rules do not allow thereservation of civil actions in BP 22 cases cannot deprive






private complainant of the right to protect her interests inthe criminal action for estafa. Nothing in the current law orrules on BP 22 vests the jurisdiction of the correspondingcivil case exclusively in the court trying the BP 22 criminalcase.

25

In promulgating the Rules, this Court did not intend toleave the offended parties without any remedy to protecttheir interests in estafa cases. Its power to promulgate theRules of Court is limited in the sense that rules „shall notdiminish, increase or modify substantive rights.‰

26 Private

complainantÊs

_______________

formation that the civil liability arising from the crime has been or

would be separately prosecuted[.]‰25 Unlike in Section 4 of Presidential Decree No. 1606 (Revising

Presidential Decree No. 1486 Creating A Special Court to Be Known as

„Sandiganbayan‰ and For Other Purposes, December 10, 1978), as

amended, which provides:

„Any provision of law or Rules of Court to the contrary notwithstanding, the

criminal action and the corresponding civil action for the recovery of civil

liability shall at all times be simultaneously instituted with, and jointly

determined in, the same proceeding by the Sandiganbayan or the appropriate

courts, the filing of the criminal action being deemed to necessarily carry with

it the filing of the civil action, and no right to reserve the filing of such civil

action separately from the criminal action shall be recognized: Provided,

however, That where the civil action had heretofore been filed separately but

judgment therein has not yet been rendered, and the criminal case is hereafter

filed with the Sandiganbayan or the appropriate court, said civil action shall be

transferred to the Sandiganbayan or the appropriate court, as the case may be,

for consolidation and joint determination with the criminal action, otherwise

the separate action shall be deemed abandoned.‰

26 See Abellana v. Marave, 156 Phil. 79; 57 SCRA 106, May 29, 1974.

Section 5 of Article VIII of the 1987 Constitution provides:

„Sec. 5. The Supreme Court shall have the following powers:

x x x x x x x x x

355

VOL. 465, JULY 29, 2005 355






intervention in the prosecution of estafa is justified notonly for the prosecution of her interests, but also for thespeedy and inexpensive administration of justice asmandated by the Constitution.

27

The trial court was, therefore, correct in holding that theprivate prosecutor may intervene before the RTC in theproceedings for estafa, despite the necessary inclusion ofthe corresponding civil action in the proceedings forviolation of BP 22 pending before the MTC. A recovery bythe offended party under one remedy, however, necessarilybars that under the other. Obviously stemming from thefundamental rule against unjust enrichment,

28 this is in

essence the rationale for the proscription in our law againstdouble recovery for the same act or omission.

WHEREFORE, the Petition is DISMISSED and theassailed Order AFFIRMED. Costs against petitioner.

SO ORDERED.

Sandoval-Gutierrez, Carpio-Morales and Garcia,JJ., concur.

Corona, J., On Official Leave.

Petition dismissed, assailed order affirmed.

_______________

„(5) Promulgate rules concerning the protection and enforcement of

constitutional rights, pleading, practice, and procedure in all courts, the

admission to the practice of law, the Integrated Bar, and legal assistance to the

underprivileged. Such rules shall provide a simplified and inexpensive

procedure for the speedy disposition of cases, shall be uniform for all courts of

the same grade, and shall not diminish, increase, or modify substantive rights.

Rules of procedure of special courts and quasi-judicial bodies shall remain

effective unless disapproved by the Supreme Court.‰

27 See Banal v. Tadeo Jr.; supra, p. 331.28 Joseph v. Bautista, 170 SCRA 541, 545, February 23, 1989.

356






Abad vs. Guimba

Notes.·The judgment creditors having received what isdue them, should not seek nor be granted anything more,not even by a final and executory judgment, for to do sowould be to sanction unjust enrichment. (Buan vs. Court ofAppeals, 235 SCRA 424 [1994])

A party can not be required to pay twice for the sameitems, for it would be tantamount to unjust enrichment onthe part of the other party. (Sarmiento vs. Court of Appeals,291 SCRA 656 [1998])

··o0o··



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Hyatt Industrial Manufacturing Corp. vs. Asia Dynamic

Electrix Corp.

30

HYATT INDUSTRIAL MANUFACTURING CORP.,petitioner, vs. ASIA DYNAMIC ELECTRIX CORP. andCOURT OF APPEALS, respondents.

Actions; Criminal Procedure; Bouncing Checks Law (BP 22);

Under the present revised Rules, the criminal action for violation of

BP 22 shall be deemed to include the corresponding civil action.

·We agree with the ruling of the Court of Appeals that upon filingof the criminal cases for violation of B.P. 22, the civil action for therecovery of the amount of the checks was also impliedly institutedunder Section 1(b) of Rule 111 of the 2000 Rules on CriminalProcedure. Under the present revised Rules, the criminal action forviolation of B.P. 22 shall be deemed to include the correspondingcivil action. The reservation to file a separate civil action is nolonger needed.

_______________

* SECOND DIVISION.

455

VOL. 465, JULY 29, 2005 455

Hyatt Industrial Manufacturing Corp. vs. Asia Dynamic Electrix

Corp.



Same; Same; Same; The inclusion of the civil action in the

criminal case is expected to significantly lower the number of cases

filed before the courts for collection based on dishonored checks.

·Generally, no filing fees are required for criminal cases, butbecause of the inclusion of the civil action in complaints forviolation of B.P. 22, the Rules require the payment of docket feesupon the filing of the complaint. This rule was enacted to helpdeclog court dockets which are filled with B.P. 22 cases as creditorsactually use the courts as collectors. Because ordinarily no filing feeis charged in criminal cases for actual damages, the payee uses theintimidating effect of a criminal charge to collect his credit gratis

and sometimes, upon being paid, the trial court is not eveninformed thereof. The inclusion of the civil action in the criminalcase is expected to significantly lower the number of cases filedbefore the courts for collection based on dishonored checks. It is alsoexpected to expedite the disposition of these cases. Instead ofinstituting two separate cases, one for criminal and another forcivil, only a single suit shall be filed and tried. It should be stressedthat the policy laid down by the Rules is to discourage the separatefiling of the civil action. The Rules even prohibit the reservation of aseparate civil action, which means that one can no longer file aseparate civil case after the criminal complaint is filed in court. Theonly instance when separate proceedings are allowed is when thecivil action is filed ahead of the criminal case. Even then, the Rulesencourage the consolidation of the civil and criminal cases. We havepreviously observed that a separate civil action for the purpose ofrecovering the amount of the dishon-ored checks would only proveto be costly, burdensome and time-consuming for both parties andwould further delay the final disposition of the case. Thismultiplicity of suits must be avoided. Where petitionersÊ rights maybe fully adjudicated in the proceedings before the trial court, resortto a separate action to recover civil liability is clearly unwarranted.In view of this special rule governing actions for violation of B.P. 22,Article 31 of the Civil Code cited by the trial court will not apply tothe case at bar.

Same; Same; Same; Litis Pendentia; Elements; The pendency of

the civil action before the court trying the criminal case bars the

filing of another civil action in another court on the ground of litis

pendentia.·The pendency of the civil action before the court tryingthe criminal case bars the filing of another civil action in anothercourt on the ground of litis pendentia. The elements of litis

pendentia as a



456



Corp.

ground for dismissal of an action are: (1) identity of parties, or atleast such parties who represent the same interest in both actions;(2) identity of rights asserted and relief prayed for, the relief beingfounded on the same facts; and (3) the identity, with respect to thetwo preceding particulars in the two cases, is such that anyjudgment that may be rendered in the pending case, regardless ofwhich party is successful, would amount to res judicata in the other.

Same; Same; Same; Same; Unjust Enrichment; The Court will

certainly not allow the complainant to recover a sum of money twice

based on the same set of checks, nor will it allow it to proceed with

two actions based on the same set of checks to increase its chances of

obtaining a favorable ruling·such runs counter to the CourtÊs policy

against forum shopping.·Petitioner contends that there is noidentity of causes of action in the civil and criminal cases as theamount claimed in Civil Case No. MC 01-1493 is greater than thetotal amount of the checks involved in I.S. No. 00-01-00304 and I.S.No. 00-01-00300. We are not persuaded. We find that the inclusionof additional checks in Civil Case No. MC 01-1493 is an attempt tocircumvent the rule against forum shopping, to make it appear thatthe objects of the civil and criminal proceedings are different. It isclear from the records that the checks involved in I.S. No. 00-01-00304 and I.S. No. 00-01-00300 are the same checks cited bypetitioner in Civil Case No. MC 01-1493. The Court will certainlynot allow petitioner to recover a sum of money twice based on thesame set of checks. Neither will the Court allow it to proceed withtwo actions based on the same set of checks to increase its chancesof obtaining a favorable ruling. Such runs counter to the CourtÊspolicy against forum shopping which is a deplorable practice oflitigants in resorting to two different fora for the purpose ofobtaining the same relief to increase his chances of obtaining afavorable judgment. It is a practice that ridicules the judicialprocess, plays havoc with the rules on orderly procedure, and isvexatious and unfair to the other parties of the case.



PETITION for review on certiorari of the decision andresolution of the Court of Appeals.

The facts are stated in the opinion of the Court. Alan A. Leynes for petitioner.

457

VOL. 465, JULY 29, 2005 457


Electrix Corp.

Gloria Morte for respondent.

PUNO, J.:

This is a petition for review of the decision of the Court ofAppeals dated October 8, 2003 in CA-G.R. SP No. 71467and its resolution dated May 14, 2004. The assaileddecision and resolution reversed the order dated December10, 2001 of the Regional Trial Court of Mandaluyong City,Branch 210 in Civil Case No. MC 01-1493 denying themotion to dismiss filed by herein respondent, Asia DynamicElectrix Corporation.

On April 4, 2001, petitioner Hyatt IndustrialManufacturing Corporation filed before the Regional TrialCourt of Mandaluyong City a complaint for recovery of sumof money against respondent Asia Dynamic ElectrixCorporation. The complaint alleged that respondentpurchased from petitioner various electrical conduits andfittings amounting P1,622,467.14. Respondent issuedseveral checks in favor of petitioner as payment. Thechecks, however, were dishonored by the drawee bank onthe ground of insufficient funds/ account closed. Thecomplaint further alleged that respondent failed to paydespite demand. It prayed that respondent be ordered topay the amount of purchase, plus interest and attorneyÊsfees.

1

Respondent moved to dismiss the complaint on thefollowing grounds: (1) the civil action was deemed includedin the criminal actions for violation of Batas Pambansa

Blg. 22 (B.P. 22) previously filed by petitioner against the

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officers of respondent corporation; (2) Section 1(b) of Rule111 of the Revised Rules of Criminal Procedure prohibitsthe filing of a separate civil action in B.P. 22 cases; and (3)respondent was guilty of forum shopping and unjustenrichment.

2

_______________

1 Rollo, pp. 34-39.2 Rollo, pp. 41-47.

458



Electrix Corp.

The trial court denied the motion to dismiss in its orderdated December 10, 2001. It ruled that since the actcomplained of arose from the alleged non-payment of thepetitioner of its contractual debt, and not the issuance ofchecks with insufficient funds, in accordance with Article31 of the Civil Code, the civil action could proceedindependently of the criminal actions. It said that Section1(b) of Rule 111 of the Revised Rules of Criminal Proceduredoes not apply to the obligation in this case, it being ex-

contractu and not ex-delicto.3

Respondent questioned said order before the Court ofAppeals in a petition for certiorari. The appellate court, inits decision dated October 8, 2003, reversed the order of thetrial court. It held that the civil actions deemed institutedwith the filing of the criminal cases for violation of B.P. 22and Civil Case No. MC 01-1493 are of the same nature, i.e.,for sum of money between the same parties for the sametransaction. Considering that the courts where the twocriminal cases were pending acquired jurisdiction over thecivil actions, which were deemed instituted therein, therespondent court could no longer acquire jurisdiction overthe same case.

4

Respondent filed a motion for reconsideration which wasdenied by the Court of Appeals in its resolution dated May14, 2004.

5







1.

2.

3.

Hence, this petition raising the following arguments:

There is no identity of interests, causes of action,and reliefs in Civil Case No. MC 01-1493 before theRegional Trial Court of Mandaluyong City and thecriminal complaints for violation of BP Blg. 22 filedagainst Gil Santillan and Juanito Pamatmat beforethe Metropolitan Trial Court of Pasig City docketedas I.S. No. 00-01-00304 and I.S. No. 00-01-00300.

_______________

3 Rollo, pp. 59-61.4 Rollo, pp. 20-28.5 Rollo, pp. 31-33.

459

VOL. 465, JULY 29, 2005 459


Electrix Corp.

Petitioner is not guilty of forum shopping.

Petitioner did not violate Section 1(b) of Rule 111 ofthe Revised Rules on Criminal Procedure when itfiled the complaint in Civil Case No. MC 01-1493.

6

The petition is unmeritorious.It appears that prior to the filing of the case for recovery

of sum of money before the Regional Trial Court ofMandaluyong City, petitioner had already filed separatecriminal complaints for violation of B.P. 22 against theofficers of respondent corporation, Gil Santillan andJuanito Pamatmat. They were docketed as I.S. No. 00-01-00304

7 and I.S. No. 00-01-00300,

8 respectively, and were

both pending before the Metropolitan Trial Court of PasigCity. These cases involve the same checks which are thesubjects of Civil Case No. MC 01-1493 before the RegionalTrial Court of Mandaluyong City.

We agree with the ruling of the Court of Appeals thatupon filing of the criminal cases for violation of B.P. 22, thecivil action for the recovery of the amount of the checks was






also impliedly instituted under Section 1(b) of Rule 111 ofthe 2000 Rules on Criminal Procedure. Under the presentrevised Rules, the criminal action for violation of B.P. 22shall be deemed to include the corresponding civil action.The reservation to file a separate civil action is no longerneeded.

9 The Rules provide:

Section 1. Institution of criminal and civil actions.·(a) x x x(b) The criminal action for violation of Batas Pambansa Blg. 22

shall be deemed to include the corresponding civil action. Noreservation to file such civil action separately shall be allowed.

_______________

6 Rollo, p. 11.

7 Rollo, pp. 50-52.

8 Rollo, pp. 53-55.

9 Ngo vs. People, 434 SCRA 522 (2004).

460



Corp.

Upon filing of the aforesaid joint criminal and civil actions, theoffended party shall pay in full the filing fees based on the amountof the check involved, which shall be considered as the actualdamages claimed. Where the complaint or information also seeks torecover liquidated, moral, nominal, temperate or exemplarydamages, the offended party shall pay additional filing fees basedon the amounts alleged therein. If the amounts are not so allegedbut any of these damages are subsequently awarded by the court,the filing fees based on the amount awarded shall constitute a firstlien on the judgment.

Where the civil action has been filed separately and trial thereofhas not yet commenced, it may be consolidated with the criminalaction upon application with the court trying the latter case. If theapplication is granted, the trial of both actions shall proceed inaccordance with section 2 of this Rule governing consolidation of thecivil and criminal actions.




The foregoing rule was adopted from Circular No. 57-97 ofthis Court. It specifically states that the criminal action forviolation of B.P. 22 shall be deemed to include thecorresponding civil action. It also requires the complainantto pay in full the filing fees based on the amount of thecheck involved. Generally, no filing fees are required forcriminal cases, but because of the inclusion of the civilaction in complaints for violation of B.P. 22, the Rulesrequire the payment of docket fees upon the filing of thecomplaint. This rule was enacted to help declog courtdockets which are filled with B.P. 22 cases as creditorsactually use the courts as collectors. Because ordinarily nofiling fee is charged in criminal cases for actual damages,the payee uses the intimidating effect of a criminal chargeto collect his credit gratis and sometimes, upon being paid,the trial court is not even informed thereof.

10 The inclusion

of the civil action in the criminal case is expected tosignificantly lower the number of cases filed before thecourts for collection based on dishonored checks. It is alsoexpected to

_______________

10 Regalado, Remedial Law Compendium, Vol. II (9th Revised

Edition), pp. 293-294.

461

VOL. 465, JULY 29, 2005 461


Electrix Corp.

expedite the disposition of these cases. Instead ofinstituting two separate cases, one for criminal andanother for civil, only a single suit shall be filed and tried.It should be stressed that the policy laid down by the Rulesis to discourage the separate filing of the civil action. TheRules even prohibit the reservation of a separate civilaction, which means that one can no longer file a separatecivil case after the criminal complaint is filed in court. Theonly instance when separate proceedings are allowed iswhen the civil action is filed ahead of the criminal case.




Even then, the Rules encourage the consolidation of thecivil and criminal cases. We have previously observed thata separate civil action for the purpose of recovering theamount of the dishonored checks would only prove to becostly, burdensome and time-consuming for both partiesand would further delay the final disposition of the case.This multiplicity of suits must be avoided. WherepetitionersÊ rights may be fully adjudicated in theproceedings before the trial court, resort to a separateaction to recover civil liability is clearly unwarranted.

11 In

view of this special rule governing actions for violation ofB.P. 22, Article 31 of the Civil Code

12 cited by the trial court

will not apply to the case at bar.The pendency of the civil action before the court trying

the criminal case bars the filing of another civil action inanother court on the ground of litis pendentia. Theelements of litis pendentia as a ground for dismissal of anaction are: (1) identity of parties, or at least such partieswho represent the same interest in both actions; (2)identity of rights asserted and relief prayed for, the reliefbeing founded on the same facts; and (3) the identity, withrespect to the two preceding particulars in the two cases, issuch that any judgment that may

_______________

11 Banal vs. Tadeo, Jr., 156 SCRA 325 (1987).12 Art. 31. When the civil action is based on an obligation not arising

from the act or omission complained of as a felony, such civil action may

proceed independently of the criminal proceedings and regardless of the

result of the latter.

462



Electrix Corp.

be rendered in the pending case, regardless of which partyis successful, would amount to res judicata in the other.

13

We reject petitionerÊs assertion that there is no identityof parties and causes of action between the civil case, Civil






Case No. MC 01-1493, and the criminal cases, I.S. No. 00-01-00304 and I.S. No. 00-01-00300.

First, the parties in Civil Case No. MC 01-1493represent the same interests as the parties in I.S. No. 00-01-00304 and I.S. No. 00-01-00300. I.S. No. 00-01-00304and I.S. No. 00-01-00300 were filed against the officers ofrespondent corporation who signed the checks as agentsthereof. The records indicate that the checks were in factdrawn in the account of respondent corporation. It has notbeen alleged in the suit that said officers acted beyondtheir authority in signing the checks, hence, their acts mayalso be binding on respondent corporation, depending onthe outcome of the proceedings.

Second, Civil Case No. MC 01-1493 and I.S. No. 00-01-00304 and I.S. No. 00-01-00300 seek to obtain the samerelief. With the implied institution of the civil liability inthe criminal actions before the Metropolitan Trial Court ofPasig City, the two actions are merged into one compositeproceeding, with the criminal action predominating thecivil. The prime purpose of the criminal action is to punishthe offender to deter him and others from committing thesame or similar offense, to isolate him from society, reformor rehabilitate him or, in general, to maintain social order.The purpose, meanwhile, of the civil action is for therestitution, reparation or indemnification of the privateoffended party for the damage or injury he sustained byreason of the delictual or felonious act of the accused.

14

Hence, the relief sought in the civil aspect of I.S. No. 00-01-00304 and I.S. No. 00-01-00300 is the same

_______________

13 Development Bank of the Philippines vs. Pingol Land Transport

System Co., Inc., 420 SCRA 652 (2004).14 Ramiscal, Jr. vs. Sandiganbayan, G.R. Nos. 140576-99, December

13, 2004, 446 SCRA 166.

463

VOL. 465, JULY 29, 2005 463


Electrix Corp.




as that sought in Civil Case No. MC 01-1493, that is, therecovery of the amount of the checks, which, according topetitioner, represents the amount to be paid by respondentfor its purchases. To allow petitioner to proceed with CivilCase No. MC 01-1493 despite the filing of I.S. No. 00-01-00304 and I.S. No. 00-01-00300 might result to a doublepayment of its claim.

Petitioner contends that there is no identity of causes ofaction in the civil and criminal cases as the amountclaimed in Civil Case No. MC 01-1493 is greater than thetotal amount of the checks involved in I.S. No. 00-01-00304and I.S. No. 00-01-00300. We are not persuaded. We findthat the inclusion of additional checks in Civil Case No.MC 01-1493 is an attempt to circumvent the rule againstforum shopping, to make it appear that the objects of thecivil and criminal proceedings are different. It is clear fromthe records that the checks involved in I.S. No. 00-01-00304

15 and I.S. No. 00-01-00300

16 are the same checks

cited by petitioner in Civil Case No. MC 01-1493.17

TheCourt will certainly not allow petitioner to recover a sum ofmoney twice based on the same set of checks. Neither willthe Court allow it to proceed with two actions based on thesame set of checks to increase its chances of obtaining afavorable ruling. Such runs counter to the CourtÊs policyagainst forum shopping which is a deplorable practice oflitigants in resorting to two different fora for the purpose ofobtaining the same relief to increase his chances ofobtaining a favorable judgment.

18 It is a practice that

ridicules the judi-

_______________

15 Check Nos. 0000091862, 0000110833 and 0000110918.16 Check No. 0000110862.17 Petitioner based its claim in Civil Case No. MC 01-1493 on the

following dishonored checks: Check Nos. 91862, 110833, 11807, 110862,

110918, 110917 and 93318.18 Jaban vs. City of Cebu, 423 SCRA 56 (2004).

464









Electrix Corp.

cial process, plays havoc with the rules on orderlyprocedure, and is vexatious and unfair to the other partiesof the case.

19

Thus, we find that the Court of Appeals committed noreversible error in the assailed decision and resolution.

IN VIEW WHEREOF, the petition is DENIED.SO ORDERED.

Austria-Martinez, Callejo, Sr., Tinga and Chico-

Nazario, JJ., concur.

Petition denied.

Notes.·The Supreme Court has laid down theyardstick to determine whether a party violated the ruleagainst forum shopping as where the elements of litis

pendentia are present or where a final judgment in onecase will amount to res judicata in the other. (Manalo vs.

Court of Appeals, 366 SCRA 752 [2001])The quasi-contract of solutio indebiti is based on the

ancient principle that no one shall enrich himself unjustlyat the expense of the other. (Genova vs. De Castro, 407SCRA 165 [2003])

··o0o··

_______________

19 Development Bank of the Philippines vs. Pingol Land Transport

System Company, Inc., 420 SCRA 652 (2004).

465




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G.R. No. 165732. December 14, 2006.*

SAFEGUARD SECURITY AGENCY, INC., and ADMERPAJARILLO, petitioners, vs. LAURO TANGCO, VALTANGCO, VERN LARRY TANGCO, VAN LAUROTANGCO, VON LARRIE TANGCO, VIEN LARI TANGCOand VIVIEN LAURIZ TANGCO, respondents.

Actions; Damages; Quasi-Delicts; Torts; Pleadings and Practice;

An act or omission causing damage to another may give rise to two

separate civil liabilities on the part of the offender, i.e., (1) civil

liability ex delicto, under Article 100 of the Revised Penal Code, and,

(2) independent civil liabilities, such as those arising from culpa

contractual under Article 31, intentional torts under Articles 32 and

34, and culpa aquiliana under Article 2176 of the Civil Code, or

those where the injured party is granted a right to file an action

independent and distinct from the criminal action under Article 33

of the Civil Code; The purpose of an action or suit and the law to

govern it is to be determined not by the claim of the party filing the

action, made in his argument or brief, but rather by the complaint

itself, its allegations and prayer for relief.·An act or omissioncausing damage to another may give rise to two separate civilliabilities on the part of the offender, i.e., (1) civil liability ex delicto,under Article 100 of the Revised Penal Code; and (2) independentcivil liabilities, such as those (a) not arising from an act or omissioncomplained of as a felony, e.g., culpa contractual or obligationsarising from law under Article 31 of the Civil Code, intentional tortsunder Articles 32 and 34, and culpa aquiliana under Article2176 of the Civil Code; or (b) where the injured party is granted aright to file an action independent and distinct from the criminalaction under Article 33 of the Civil Code. Either of these liabilitiesmay be enforced against the offender subject to the caveat underArticle 2177 of the Civil Code that the offended party cannotrecover damages twice for the same act or omission or under bothcauses. It is important to determine the nature of respondentsÊ

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cause of action. The nature of a cause of action is determined by thefacts alleged in the complaint as constituting the cause ofaction.The purpose of an action or suit and the law to govern it is tobe determined not by the claim of the party filing

_______________

* FIRST DIVISION.

68


Safeguard Security Agency, Inc. vs. Tangco

the action, made in his argument or brief, but rather by thecomplaint itself, its allegations and prayer for relief.

Same; Same; Same; Same; Article 2176 of the Civil Code, where

it refers to a „fault or negligence,‰ covers not only acts „not

punishable by law‰ but also acts criminal in character, whether

intentional and voluntary or negligent.·The scope of Article 2176 isnot limited to acts or omissions resulting from negligence. In Dulay

v. Court of Appeals, 243 SCRA 220 (1995), we held: x x x Well-entrenched is the doctrine that Article 2176 covers not only actscommitted with negligence, but also acts which are voluntary andintentional. As far back as the definitive case of Elcano v. Hill (77SCRA 98 [1977]), this Court already held that: „x x x Article 2176,where it refers to „fault or negligence,‰ covers not only acts„not punishable by law‰ but also acts criminal in character,whether intentional and voluntary or negligent.Consequently, a separate civil action lies against the offender in acriminal act, whether or not he is crimi-nally prosecuted and foundguilty or acquitted, provided that the offended party is not allowed,if he is actually charged also crimi-nally, to recover damages on bothscores, and would be entitled in such eventuality only to the biggeraward of the two, assuming the awards made in the two cases vary.In other words, the extinction of civil liability referred to in Par. (e)of Section 3, Rule 111, refers exclusively to civil liability founded on



Article 100 of the Revised Penal Code, whereas the civil liability forthe same act considered as quasi-delict only and not as a crime isnot extinguished even by a declaration in the criminal case that thecriminal act charged has not happened or has not been committedby the accused. Briefly stated, We here hold, in reiteration ofGarcia, that culpa aquiliana includes voluntary and negligent actswhich may be punishable by law.‰ (Emphasis supplied)

Same; Same; Same; Same; Under Article 2180 of the Civil Code,

when the injury is caused by the negligence of the employee, there

instantly arises a presumption of law that there was negligence on

the part of the master or the employer either in the selection of the

servant or employee, or in the supervision over him after selection or

both.·As clearly shown by the allegations in the complaint, respon-dentsÊ cause of action is based on quasi-delict. Under Article 2180 ofthe Civil Code, when the injury is caused by the negligence of theemployee, there instantly arises a presumption of law that therewas

69

VOL. 511, DECEMBER 14, 2006 69


negligence on the part of the master or the employer either in theselection of the servant or employee, or in the supervision over himafter selection or both. The liability of the employer under Article2180 is direct and immediate. Therefore, it is incumbent uponpetitioners to prove that they exercised the diligence of a goodfather of a family in the selection and supervision of their employee.

Evidence; Appeals; Generally, factual findings of the trial court,

affirmed by the Court of Appeals, are final and conclusive and may

not be reviewed on appeal; Exceptions.·The issue of negligence isfactual in nature. Whether a person is negligent or not is a questionof fact, which, as a general rule, we cannot pass upon in a petitionfor review on certiorari, as our jurisdiction is limited to reviewingerrors of law. Generally, factual findings of the trial court, affirmedby the CA, are final and conclusive and may not be reviewed onappeal. The established exceptions are: (1) when the inference made



is manifestly mistaken, absurd or impossible; (2) when there isgrave abuse of discretion; (3) when the findings are groundedentirely on speculations, surmises or conjectures; (4) when thejudgment of the CA is based on misapprehension of facts; (5) whenthe findings of fact are conflicting; (6) when the CA, in making itsfindings, went beyond the issues of the case and the same iscontrary to the admissions of both appellant and appellee; (7) whenthe findings of fact are conclusions without citation of specificevidence on which they are based; (8) when the CA manifestlyoverlooked certain relevant facts not disputed by the parties andwhich, if properly considered, would justify a different conclusion;and (9) when the findings of fact of the CA are premised on theabsence of evidence and are contradicted by the evidence on record.

Same; Witnesses; We have no test of the truth of human

testimony, except its conformity to our knowledge, observation and

experience·whatever is repugnant to these belongs to the

miraculous and is outside judicial cognizance.·Evidence, to bebelieved, must not only proceed from the mouth of a crediblewitness, but it must be credible in itself·such as the commonexperience and observation of mankind can approve as probableunder the circumstances. We have no test of the truth of humantestimony, except its conformity to our knowledge, observation andexperience. Whatever is repugnant to these belongs to themiraculous and is outside judicial cognizance.

70



Quasi-Delicts; Torts; Employer-Employee Relationship; In the

selection of prospective employees, employers are required to examine

them as to their qualifications, experience, and service records; Due

diligence in the supervision of employees includes the formulation of

suitable rules and regulations for the guidance of employees and the

issuance of proper instructions intended for the protection of the

public and persons with whom the employer has relations through

his or its employees and the imposition of necessary disciplinary

measures upon employees in case of breach or as may be warranted



to ensure the performance of acts indispensable to the business of

and beneficial to their employer.·As the employer of Pajarillo,Safeguard is primarily and solidarily liable for the quasi-delict

committed by the former. Safeguard is presumed to be negligent inthe selection and supervision of his employee by operation of law.This presumption may be overcome only by satisfactorily showingthat the employer exercised the care and the diligence of a goodfather of a family in the selection and the supervision of itsemployee. In the selection of prospective employees, employers arerequired to examine them as to their qualifications, experience, andservice records. On the other hand, due diligence in the supervisionof employees includes the formulation of suitable rules andregulations for the guidance of employees and the issuance ofproper instructions intended for the protection of the public andpersons with whom the employer has relations through his or itsemployees and the imposition of necessary disciplinary measuresupon employees in case of breach or as may be warranted to ensurethe performance of acts indispensable to the business of andbeneficial to their employer. To this, we add that actualimplementation and monitoring of consistent compliance with saidrules should be the constant concern of the employer, actingthrough dependable supervisors who should regularly report ontheir supervisory functions. To establish these factors in a trialinvolving the issue of vicarious liability, employers must submitconcrete proof, including documentary evidence.

Same; Same; Damages; Moral damages are awarded to enable

the injured party to obtain means, diversions or amusements that

will serve to alleviate the moral suffering he/she has undergone, by

reason of the defendantÊs culpable action·its award is aimed at

restoration, as much as possible, of the spiritual status quo ante.

·As to the award of moral damages, Article 2206 of the Civil Codeprovides that the spouse, legitimate children and illegitimatedescen-

71

VOL. 511, DECEMBER 14, 2006 71




dants and ascendants of the deceased may demand moral damagesfor mental anguish by reason of the death of the deceased. Moraldamages are awarded to enable the injured party to obtain means,diversions or amusements that will serve to alleviate the moralsuffering he/she has undergone, by reason of the defendantÊsculpable action. Its award is aimed at restoration, as much aspossible, of the spiritual status quo ante; thus it must beproportionate to the suffering inflicted. The intensity of the painexperienced by the relatives of the victim is proportionate to theintensity of affection for him and bears no relation whatsoever withthe wealth or means of the offender.

Same; Same; Same; Exemplary damages are awarded as a de-

terrent to socially deleterious actions, and in quasi-delicts,

exemplary damages may be granted if the defendant acted with

gross negli-gence.·We likewise uphold the award of exemplarydamages in the amount of P300,000.00. Under Article 2229 of theCivil Code, exemplary damages are imposed by way of example orcorrection for the public good, in addition to moral, temperate,liquidated or compensatory damages. It is awarded as a deterrent tosocially deleterious actions. In quasi-delict, exemplary damagesmay be granted if the defendant acted with gross negligence.


The facts are stated in the opinion of the Court. Padilla, Asuncion & Padilla for petitioners. Cesar T. Ching for respondent.

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari filed bySafeguard Security Agency, Inc. (Safeguard) and AdmerPajarillo (Pajarillo) assailing the Decision

1 dated July 16,

2004 and the

_______________

1 CA Rollo, pp. 127-135; Penned by Justice Conrado M. Vasquez, Jr.

and concurred in by Justices Josefina Guevara-Salonga and Fernanda

Lampas-Peralta.




72



Resolution2 dated October 20, 2004 issued by the Court of

Appeals (CA) in CA-G.R. CV No. 77462.On November 3, 1997, at about 2:50 p.m., Evangeline

Tangco (Evangeline) went to Ecology Bank, KatipunanBranch, Quezon City, to renew her time deposit per adviseof the bankÊs cashier as she would sign a specimen card.Evangeline, a duly licensed firearm holder withcorresponding permit to carry the same outside herresidence, approached security guard Pajarillo, who wasstationed outside the bank, and pulled out her firearm fromher bag to deposit the same for safekeeping. Suddenly,Pajarillo shot Evangeline with his service shotgun hittingher in the abdomen instantly causing her death.

Lauro Tangco, EvangelineÊs husband, together with hissix minor children (respondents) filed with the RegionalTrial Court (RTC) of Quezon City, a criminal case ofHomicide against Pajarillo, docketed as Criminal Case No.0-97-73806 and assigned to Branch 78. Respondentsreserved their right to file a separate civil action in the saidcriminal case. The RTC of Quezon City subsequentlyconvicted Pajarillo of Homicide in its Decision datedJanuary 19, 2000.

3 On appeal to the CA, the RTC decision

was affirmed with modification as to the penalty in aDecision

4 dated July 31, 2000. Entry of Judgment was

made on August 25, 2001.Meanwhile, on January 14, 1998, respondents filed with

RTC, Branch 273, Marikina City, a complaint5 for damages

against Pajarillo for negligently shooting Evangeline andagainst Safeguard for failing to observe the diligence of agood father of a family to prevent the damage committed byits

_______________

2 Id., at p. 158.3 Penned by Judge Percival Mandap Lopez.







1.

2.

3.

4.

5.

6.

4 Docketed as G.R. CR No. 23947; Penned by Justice Bernardo P.

Abesamis and concurred in by Justices Godardo A. Jacinto (retired) and

Eliezer R. delos Santos.5 Records, pp. 1-5; Docketed as Case No. 98-417-MK.

73

VOL. 511, DECEMBER 14, 2006 73


security guard. Respondents prayed for actual, moral andexemplary damages and attorneyÊs fees.

In their Answer,6 petitioners denied the material

allegations in the complaint and alleged that Safeguardexercised the diligence of a good father of a family in theselection and supervision of Pajarillo; that EvangelineÊsdeath was not due to PajarilloÊs negligence as the latteracted only in selfdefense. Petitioners set up a compulsorycounterclaim for moral damages and attorneyÊs fees.

Trial thereafter ensued. On January 10, 2003, the RTCrendered its Decision,

7 the dispositive portion of which

reads:

„WHEREFORE, judgment is hereby rendered in favor of theplaintiffs, the heirs of Evangeline Tangco, and against defendantsAdmer Pajarillo and Safeguard Security Agency, Inc. ordering saiddefendants to pay the plaintiffs, jointly and severally, the following:

ONE HUNDRED FIFTY SEVEN THOUSAND FOURHUNDRED THIRTY PESOS (P157,430.00), as actualdamages

FIFTY THOUSAND PESOS (P50,000.00) as deathindemnity;

ONE MILLION PESOS (P1,000,000.00), as moral damages;

THREE HUNDRED THOUSAND PESOS (P300,000.00), asexemplary damages;

THIRTY THOUSAND PESOS (P30,000.00), as attorneyÊsfees; and

costs of suit.

For lack of merit, defendantsÊ counterclaim is hereby





DISMISSED.SO ORDERED.‰

8

_______________

6 Id., at pp. 21-30.7 Id., at pp. 320-336.8 Id., at p. 336.

74



The RTC found respondents to be entitled to damages. Itrejected PajarilloÊs claim that he merely acted in self-defense. It gave no credence to PajarilloÊs bare claim thatEvangeline was seen roaming around the area prior to theshooting incident since Pajarillo had not made such reportto the head office and the police authorities. The RTCfurther ruled that being the guard on duty, the situationdemanded that he should have exercised proper prudenceand necessary care by asking Evangeline for him toascertain the matter instead of shooting her instantly; thatPajarillo had already been convicted of Homicide inCriminal Case No. 0-97-73806; and that he also failed toproffer proof negating liability in the instant case.

The RTC also found Safeguard as employer of Pajarilloto be jointly and severally liable with Pajarillo. It ruledthat while it may be conceded that Safeguard had perhapsexercised care in the selection of its employees, particularlyof Pajarillo, there was no sufficient evidence to show thatSafeguard exercised the diligence of a good father of afamily in the supervision of its employee; that SafeguardÊsevidence simply showed that it required its guards toattend trainings and seminars which is not the supervisioncontemplated under the law; that supervision includes notonly the issuance of regulations and instructions designedfor the protection of persons and property, for the guidanceof their servants and employees, but also the duty to see toit that such regulations and instructions are faithfullycomplied with.




Petitioners appealed the RTC decision to the CA. OnJuly 16, 2004, the CA issued its assailed Decision, thedispositive portion of which reads:

„IN VIEW OF ALL THE FOREGOING, the appealed decision ishereby AFFIRMED, with the modification that Safeguard SecurityAgency, Inc.Ês civil liability in this case is only subsidiary under Art.103 of the Revised Penal Code. No pronouncement as to costs.‰

9

_______________

9 CA Rollo, p. 134.

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VOL. 511, DECEMBER 14, 2006 75


In finding that Safeguard is only subsidiarily liable, the CAheld that the applicable provisions are not Article 2180 inrelation to Article 2176 of the Civil Code, on quasi-delicts,but the provisions on civil liability arising from feloniesunder the Revised Penal Code; that since Pajarillo hadbeen found guilty of Homicide in a final and executoryjudgment and is said to be serving sentence in Muntinlupa,he must be adjudged civilly liable under the provisions ofArticle 100 of the Revised Penal Code since the civilliability recoverable in the criminal action is one solelydependent upon conviction, because said liability arisesfrom the offense charged and no other; that this is also thecivil liability that is deemed extinguished with theextinction of the penal liability with a pronouncement thatthe fact from which the civil action might proceed does notexist; that unlike in civil liability arising from quasi-delict,the defense of diligence of a good father of a family in theemployment and supervision of employees is inapplicableand irrelevant in civil liabilities based on crimes or ex

delicto; that Article 103 of the Revised Penal Code providesthat the liability of an employer for the civil liability oftheir employees is only subsidiary, not joint or solidary.

Petitioners filed their Motion for Reconsideration whichthe CA denied in a Resolution dated October 20, 2004.




Hence, the instant Petition for Review on Certiorari

with the following assignment of errors, to wit:

„The Honorable Court of Appeals gravely erred in finding petitionerPajarillo liable to respondents for the payment of damages andother money claims.

The Honorable Court of Appeals gravely erred when it appliedArticle 103 of the Revised Penal Code in holding petitionerSafeguard solidarily [sic] liable with petitioner Pajarillo for thepayment of damages and other money claims.

The Honorable Court of Appeals gravely erred in failing to findthat petitioner Safeguard Security Agency, Inc. exercised due dili-

76



gence in the selection and supervision of its employees, hence,should be excused from any liability.‰

10

The issues for resolution are whether (1) Pajarillo is guiltyof negligence in shooting Evangeline; and (2) Safeguardshould be held solidarily liable for the damages awarded torespondents.

Safeguard insists that the claim for damages byrespondents is based on culpa aquiliana under Article2176

11 of the Civil Code, in which case, its liability is jointly

and severally with Pajarillo. However, since it hasestablished that it had exercised due diligence in theselection and supervision of Pajarillo, it should beexonerated from civil liability.

We will first resolve whether the CA correctly held thatrespondents, in filing a separate civil action againstpetitioners are limited to the recovery of damages arisingfrom a crime or delict, in which case the liability ofSafeguard as employer under Articles 102 and 103 of theRevised Penal Code

12 is

_______________

10 Rollo, p. 16.






11 CIVIL CODE, 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 preexisting

contractual relation between the parties, is called a quasidelict and is

governed by the provisions of this Chapter.12 REVISED PENAL CODE, Art. 102. Subsidiary civil liability of

innkeepers, tavern-keepers and proprietors of establishments.·In default

of the persons criminally liable, innkeepers, tavern-keepers, and any

other persons or corporations shall be civilly liable for crimes committed

in their establishments, in all cases where a violation of municipal

ordinances or some general or special police regulations shall have been

committed by them or their employees. Innkeepers are also subsidiarily

liable for the restitution of goods taken by robbery or theft within their

houses from guests lodging therein, or for the payment of the value

thereof, provided that such guests shall have notified in advance the

innkeeper himself, or the person representing him, of the deposits of such

goods within the inn; and shall furthermore have followed the directions

77

VOL. 511, DECEMBER 14, 2006 77


subsidiary and the defense of due diligence in the selectionand supervision of employee is not available to it.

The CA erred in ruling that the liability of Safeguard isonly subsidiary.

The law at the time the complaint for damages was filedis Rule 111 of the 1985 Rules on Criminal Procedure, asamended, to wit:

„SECTION 1. Institution of criminal and civil actions.·When acriminal action is instituted, the civil action for the recovery of civilliability is impliedly instituted with the criminal action, unless theoffended party waives the civil action, reserves his right to instituteit separately, or institutes the civil action prior to the criminalaction.

Such civil action includes recovery of indemnity under theRevised Penal Code, and damages under Articles 32, 33, 34, and2176 of the Civil Code of the Philippines arising from the same actor omission of the accused.‰



Respondents reserved the right to file a separate civilaction and in fact filed the same on January 14, 1998.

The CA found that the source of damages in the instantcase must be the crime of homicide, for which he hadalready been found guilty of and serving sentence thereof,thus must be governed by the Revised Penal Code.

We do not agree.

_______________

which such innkeeper or his representative may have given them with

respect to the care of and vigilance over such goods. No liability shall

attach in case of robbery with violence against or intimidation of persons

unless committed by the innkeeperÊs employees. Art. 103. Subsidiary

civil liability of other persons.·The subsidiary liability established in the

next preceding article shall also apply to employers, teachers, persons,

and corporations engaged in any kind of industry for felonies committed

by their servants, pupils, workmen, apprentices, or employees in the

discharge of their duties.

78



An act or omission causing damage to another may giverise to two separate civil liabilities on the part of theoffender, i.e., (1) civil liability ex delicto, under Article 100of the Revised Penal Code; and (2) independent civilliabilities, such as those (a) not arising from an act oromission complained of as a felony, e.g., culpa contractualor obligations arising from law under Article 31 of the CivilCode, intentional torts under Articles 32 and 34, andculpa aquiliana under Article 2176 of the Civil Code;or (b) where the injured party is granted a right to file anaction independent and distinct from the criminal actionunder Article 33 of the Civil Code. Either of these liabilitiesmay be enforced against the offender subject to the caveatunder Article 2177 of the Civil Code that the offended partycannot recover damages twice for the same act or omissionor under both causes.

13

It is important to determine the nature of respondentsÊ




cause of action. The nature of a cause of action isdetermined by the facts alleged in the complaint asconstituting the cause of action.

14 The purpose of an action

or suit and the law to govern it is to be determined not bythe claim of the party filing the action, made in hisargument or brief, but rather by the complaint itself, itsallegations and prayer for relief.

15

The pertinent portions of the complaint read:

„7. That Defendant Admer A. Pajarillo was the guard assigned andposted in the Ecology Bank·Katipunan Branch, Quezon City, whowas employed and under employment of Safeguard Security Agency,Inc. hence there is employer-employee relationship between co-defendants.

_______________

13 Cancio, Jr. v. Isip, 440 Phil. 29, 34-36; 391 SCRA 393, 396-397

(2002).14 Dulay v. Court of Appeals, 313 Phil. 8, 20; 243 SCRA 220, 227

(1995), citing Republic v. Estenzo, G.R. No. L-35512, February 29, 1988,

158 SCRA 282, 285.15 Id., citing De Tavera v. Philippine Tuberculosis Society, Inc., 197

Phil. 919, 926; 112 SCRA 243, 248 (1982).

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VOL. 511, DECEMBER 14, 2006 79


The Safeguard Security Agency, Inc. failed to observe the diligenceof a good father of a family to prevent damage to herein plaintiffs.

8. That defendant Admer Pajarillo upon seeing EvangelineTangco, who brought her firearm out of her bag, suddenly withoutexercising necessary caution/care, and in idiotic manner, with theuse of his shotgun, fired and burst bullets upon Evangeline M.Tangco, killing her instantly. x x x

x x x x16. That defendants, being employer and the employee are

jointly and severally liable for the death of Evangeline M. Tangco.‰16

Thus, a reading of respondentsÊ complaint shows that the






latter are invoking their right to recover damages againstSafeguard for their vicarious responsibility for the injurycaused by PajarilloÊs act of shooting and killing Evangelineunder Article 2176, Civil Code which provides:

ARTICLE 2176. Whoever by act or omission causes damage toanother, there being fault or negligence, is obliged to pay for thedamage done. Such fault or negligence, if there is no pre-existingcontractual relation between the parties is called a quasi-delict andis governed by the provisions of this Chapter.

The scope of Article 2176 is not limited to acts or omissionsresulting from negligence. In Dulay v. Court of Appeals,

17

we held:

„x x x Well-entrenched is the doctrine that Article 2176 covers notonly acts committed with negligence, but also acts which arevoluntary and intentional. As far back as the definitive case ofElcano v. Hill (77 SCRA 98 [1977]), this Court already held that:

„x x x Article 2176, where it refers to „fault or negligence,‰ coversnot only acts "not punishable by law‰ but also acts criminal incharacter, whether intentional and voluntary or negligent.Consequently, a separate civil action lies against the offender in acriminal

_______________

16 Records, pp. 3-4.17 Supra note 14, at pp. 20-21; p. 228.

80



act, whether or not he is criminally prosecuted and found guilty oracquitted, provided that the offended party is not allowed, if he isactually charged also criminally, to recover damages on both scores,and would be entitled in such eventuality only to the bigger awardof the two, assuming the awards made in the two cases vary. Inother words, the extinction of civil liability referred to in Par. (e) ofSection 3, Rule 111, refers exclusively to civil liability founded onArticle 100 of the Revised Penal Code, whereas the civil liability for




the same act considered as quasi-delict only and not as a crime isnot extinguished even by a declaration in the criminal case that thecriminal act charged has not happened or has not been committedby the accused. Briefly stated, We here hold, in reiteration ofGarcia, that culpa aquiliana includes voluntary and negligent actswhich may be punishable by law.‰ (Emphasis supplied)

The civil action filed by respondents was not derived fromthe criminal liability of Pajarillo in the criminal case butone based on culpa aquiliana or quasi-delict which isseparate and distinct from the civil liability arising fromcrime.

18 The source of the obligation sought to be enforced

in the civil case is a quasi-delict not an act or omissionpunishable by law.

In Bermudez v. Melencio-Herrera,19

where the issueinvolved was whether the civil action filed by plaintiff-appellants is founded on crime or on quasi-delict, we held:

„x x x The trial court treated the case as an action based on a crimein view of the reservation made by the offended party in thecriminal case (Criminal Case No. 92944), also pending before thecourt, to file a separate civil action. Said the trial court:

It would appear that plaintiffs instituted this action on theassumption that defendant PontinoÊs negligence in the accident ofMay 10, 1969 constituted a quasi-delict. The Court cannot acceptthe validity of that assumption. In Criminal Case No. 92944 of thisCourt, plaintiffs had already appeared as complainants. While thatcase was pending, the offended parties reserved the right toinstitute

_______________

18 Bordas v. Canadalla, G.R. No. L-30036, April 15, 1988, 160 SCRA

37, 39.19 G.R. No. L-32055, February 26, 1988, 158 SCRA 168.

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VOL. 511, DECEMBER 14, 2006 81


a separate civil action. If, in a criminal case, the right to file a





separate civil action for damages is reserved, such civil action is tobe based on crime and not on tort. That was the ruling in Joaquin

vs. Aniceto, L-18719, Oct. 31, 1964.We do not agree. The doctrine in the case cited by the trial court

is inapplicable to the instant case x x x.x x x xIn cases of negligence, the injured party or his heirs has the

choice between an action to enforce the civil liability arising fromcrime under Article 100 of the Revised Penal Code and an action forquasi-delict under Article 2176-2194 of the Civil Code. If a partychooses the latter, he may hold the employer solidarily liable for thenegligent act of his employee, subject to the employerÊs defense ofexercise of the diligence of a good father of the family.

In the case at bar, the action filed by appellant was an action fordamages based on quasi-delict. The fact that appellantsreserved their right in the criminal case to file anindependent civil action did not preclude them fromchoosing to file a civil action for quasi-delict.‰

20(Emphasis

supplied)

Although the judgment in the criminal case findingPajarillo guilty of Homicide is already final and executory,such judgment has no relevance or importance to thiscase.

21 It would have been entirely different if respondentsÊ

cause of action was for damages arising from a delict, inwhich case the CA is correct in finding Safeguard to be onlysubsidiary liable pursuant to Article 103 of the RevisedPenal Code.

22

As clearly shown by the allegations in the complaint,respondentsÊ cause of action is based on quasi-delict. UnderArticle 2180 of the Civil Code, when the injury is caused bythe negligence of the employee, there instantly arises apresumption of law that there was negligence on the part ofthe master or the employer either in the selection of theservant

_______________

20 Id., at pp. 170-171.21 McKee v. Intermediate Appellate Court, G.R. No. 68102, July 16,

1992, 211 SCRA 517, 536.22 Id.






82



or employee, or in the supervision over him after selectionor both. The liability of the employer under Article 2180 isdirect and immediate. Therefore, it is incumbent uponpetitioners to prove that they exercised the diligence of agood father of a family in the selection and supervision oftheir employee.

We must first resolve the issue of whether Pajarillo wasnegligent in shooting Evangeline.

The issue of negligence is factual in nature. Whether aperson is negligent or not is a question of fact, which, as ageneral rule, we cannot pass upon in a petition for reviewon certiorari, as our jurisdiction is limited to reviewingerrors of law.

23 Generally, factual findings of the trial court,

affirmed by the CA, are final and conclusive and may notbe reviewed on appeal. The established exceptions are: (1)when the inference made is manifestly mistaken, absurd orimpossible; (2) when there is grave abuse of discretion; (3)when the findings are grounded entirely on speculations,surmises or conjectures; (4) when the judgment of the CA isbased on misapprehension of facts; (5) when the findings offact are conflicting; (6) when the CA, in making itsfindings, went beyond the issues of the case and the sameis contrary to the admissions of both appellant andappellee; (7) when the findings of fact are conclusionswithout citation of specific evidence on which they arebased; (8) when the CA manifestly overlooked certainrelevant facts not disputed by the parties and which, ifproperly considered, would justify a different conclusion;and (9) when the findings of fact of the CA are premised onthe absence of evidence and are contradicted by theevidence on record.

24

A thorough review of the records of the case fails to showany cogent reason for us to deviate from the factual findingof

_______________





23 Yambao v. Zuñiga, 463 Phil. 650, 657; 418 SCRA 266, 271 (2003).24 Child Learning Center Inc. v. Tagorio, G.R. No. 150920, November

25, 2005, 476 SCRA 236, 241-242.

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VOL. 511, DECEMBER 14, 2006 83


the trial court and affirmed by the CA that petitionerPajarillo was guilty of negligence in shooting Evangeline.

RespondentsÊ evidence established that EvangelineÊspurpose in going to the bank was to renew her timedeposit.

25 On the other hand, Pajarillo claims that

Evangeline drew a gun from her bag and aimed the sameat him, thus, acting instinctively, he shot her in self-defense.

Pajarillo testified that when Evangeline aimed the gunat him at a distance of about one meter or one armÊslength

26 he stepped backward, loaded the chamber of his

gun and shot her.27

It is however unimaginable thatpetitioner Pajarillo could still make such movements ifindeed the gun was already pointed at him. Any movementcould have prompted Evangeline to pull the trigger to shoothim.

Petitioner Pajarillo would like to justify his action inshooting Evangeline on his mere apprehension thatEvangeline will stage a bank robbery. However, such claimis befuddled by his own testimony. Pajarillo testified thatprior to the incident, he saw Evangeline roaming under thefly over which was about 10 meters away from the bank

28

and saw her talking to a man thereat;29

that she left theman under the fly-over, crossed the street and approachedthe bank. However, except for the bare testimony ofPajarillo, the records do not show that indeed Evangelinewas seen roaming near the vicinity of the bank and actingsuspiciously prior to the shooting incident. In fact, there isno evidence that Pajarillo called the attention of his headguard or the bankÊs branch manager regarding his concernsor that he reported the same to the police authorities whoseoutpost is just about 15 meters from the bank.








_______________

25 TSN, October 1, 1998, p. 33; TSN, November 12, 1998, p. 6.26 TSN, April 4, 2002, p. 36.27 Id., at p. 79.28 Id., at p. 42.29 Id., at pp. 40-41.

84



Moreover, if Evangeline was already roaming the vicinity ofthe bank, she could have already apprised herself thatPajarillo, who was posted outside the bank, was armedwith a shotgun; that there were two guards inside thebank

30 manning the entrance door. Thus, it is quite

incredible that if she really had a companion, she wouldleave him under the flyover which is 10 meters far from thebank and stage a bank robbery all by herself without aback-up. In fact, she would have known, after surveyingthe area, that aiming her gun at Pajarillo would not ensureentrance to the bank as there were guards manning theentrance door.

Evidence, to be believed, must not only proceed from themouth of a credible witness, but it must be credible in itself·such as the common experience and observation ofmankind can approve as probable under the circumstances.We have no test of the truth of human testimony, except itsconformity to our knowledge, observation and experience.Whatever is repugnant to these belongs to the miraculousand is outside judicial cognizance.

31

That Evangeline just wanted to deposit her gun beforeentering the bank and was actually in the act of pulling hergun from her bag when petitioner Pajarillo recklessly shother, finds support from the contentions raised inpetitionersÊ petition for review where they argued thatwhen Evangeline approached the bank, she was seenpulling a gun from inside her bag and petitioner Pajarillowho was suddenly beset by fear and perceived the act as adangerous threat, shot and killed the deceased out of pure





instinct;32

that the act of drawing a gun is a threateningact, regardless of whether or not the gun was intended tobe used against petitioner Pajarillo;

33 that the fear that was

created in the mind of petitioner Pa-

_______________

30 Id., at p. 99.31 Castañares v. Court of Appeals, G.R. Nos. L-41269-70, August 6,

1979, 92 SCRA 568, 580.32 Rollo, p. 17.33 Id., at p. 18.

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VOL. 511, DECEMBER 14, 2006 85


jarillo as he saw Evangeline Tangco drawing a gun fromher purse was suddenly very real and the former merelyreacted out of pure self-preservation.

34

Considering that unlawful aggression on the part ofEvangeline is absent, PajarilloÊs claim of self-defensecannot be accepted specially when such claim wasuncorroborated by any separate competent evidence otherthan his testimony which was even doubtful. PajarilloÊsapprehension that Evangeline will shoot him to stage abank robbery has no basis at all. It is therefore clear thatthe alleged threat of bank robbery was just a figment ofPajarilloÊs imagination which caused such unfoundedunlawful aggression on his part.

Petitioners argue that Evangeline was guilty ofcontributory negligence. Although she was a licensedfirearm holder, she had no business bringing the gun insuch establishment where people would react instinctivelyupon seeing the gun; that had Evangeline been prudent,she could have warned Pajarillo before drawing the gunand did not conduct herself with suspicion by roamingoutside the vicinity of the bank; that she should not haveheld the gun with the nozzle pointed at Pajarillo whomistook the act as hold up or robbery.






We are not persuaded.As we have earlier held, Pajarillo failed to substantiate

his claim that Evangeline was seen roaming outside thevicinity of the bank and acting suspiciously prior to theshooting incident. EvangelineÊs death was merely due toPajarilloÊs negligence in shooting her on his imaginedthreat that Evangeline will rob the bank.

Safeguard contends that it cannot be jointly held liablesince it had adequately shown that it had exercised thediligence required in the selection and supervision of itsemployees. It claims that it had required the guards toundergo the necessary training and to submit the requisitequalifications

_______________

34 Id., at p. 19.

86



and credentials which even the RTC found to have beencomplied with; that the RTC erroneously found that it didnot exercise the diligence required in the supervision of itsemployee. Safeguard further claims that it conductsmonitoring of the activities of its personnel, whereinsupervisors are assigned to routinely check the activities ofthe security guards which include among others, whetheror not they are in their proper post and with properequipment, as well as regular evaluations of the employeesÊperformances; that the fact that Pajarillo loaded hisfirearm contrary to SafeguardÊs operating procedure is notsufficient basis to say that Safeguard had failed its duty ofproper supervision; that it was likewise error to say thatSafeguard was negligent in seeing to it that the proceduresand policies were not properly implemented by reason ofone unfortunate event.

We are not convinced.Article 2180 of the Civil Code provides:



„Art. 2180. The obligation imposed by Article 2176 is demandablenot only for oneÊs own acts or omissions, but also for those ofpersons for whom one is responsible.

x x x xEmployers shall be liable for the damages caused by their

employees and household helpers acting within the scope of theirassigned tasks, even though the former are not engaged in anybusiness or industry.

x x x xThe responsibility treated of in this article shall cease when the

persons herein mentioned prove that they observed all the diligenceof a good father of a family to prevent damage.‰

As the employer of Pajarillo, Safeguard is primarily andsolidarily liable for the quasi-delict committed by theformer. Safeguard is presumed to be negligent in theselection and supervision of his employee by operation oflaw. This presumption may be overcome only bysatisfactorily showing that the employer exercised the careand the diligence of a good

87

VOL. 511, DECEMBER 14, 2006 87


father of a family in the selection and the supervision of itsemployee.

In the selection of prospective employees, employers arerequired to examine them as to their qualifications,experience, and service records.

35 On the other hand, due

diligence in the supervision of employees includes theformulation of suitable rules and regulations for theguidance of employees and the issuance of properinstructions intended for the protection of the public andpersons with whom the employer has relations through hisor its employees and the imposition of necessarydisciplinary measures upon employees in case of breach oras may be warranted to ensure the performance of actsindispensable to the business of and beneficial to theiremployer. To this, we add that actual implementation andmonitoring of consistent compliance with said rules should




be the constant concern of the employer, acting throughdependable supervisors who should regularly report ontheir supervisory functions.

36 To establish these factors in a

trial involving the issue of vicarious liability, employersmust submit concrete proof, including documentaryevidence.

We agree with the RTCÊs finding that Safeguard hadexercised the diligence in the selection of Pajarillo since therecord shows that Pajarillo underwent a psychological andneuropsychiatric evaluation conducted by the St. Martin dePorres Center where no psychoses ideations were noted,submitted a certification on the Pre-licensing trainingcourse for security guards, as well as police and NBIclearances.

The RTC did not err in ruling that Safeguard fell shortof the diligence required in the supervision of its employee,particularly Pajarillo. In this case, while Safeguardpresented Capt. James Camero, its Director for Operations,who testi-

_______________

35 Metro Manila Transit Corporation v. Court of Appeals, 359 Phil. 18,

32; 298 SCRA 495, 504 (1998).36 Metro Manila Transit Corporation v. Court of Appeals, G.R. No.

104408, June 21, 1993, 223 SCRA 521, 540-541.

88



fied on the issuance of company rules and regulations, suchas the Guidelines of Guards Who Will Be Assigned ToBanks,

37 Weapons Training,

38 Safeguard Training Center

Marksmanship Training Lesson Plan,39

Disciplinary/Corrective Sanctions,40

it had also beenestablished during CameroÊs crossexamination thatPajarillo was not aware of such rules and regulations.

41

Notwithstanding CameroÊs clarification on his re-directexamination that these company rules and regulations arelesson plans as a basis of guidelines of the instructors









during classroom instructions and not necessary to givestudents copy of the same,

42 the records do not show that

Pajarillo had attended such classroom instructions.The records also failed to show that there was adequate

training and continuous evaluation of the security guardÊsperformance. Pajarillo had only attended an in-servicetraining on March 1, 1997 conducted by Toyota Sta. Rosa,his first assignment as security guard of Safeguard, whichwas in collaboration with Safeguard. It was establishedthat the concept of such training was purely on security ofequipments to be guarded and protection of the life of theemployees.

43

It had not been established that after PajarilloÊs trainingin Toyota, Safeguard had ever conducted further training ofPajarillo when he was later assigned to guard a bank whichhas a different nature of business with that of Toyota. Infact, Pajarillo testified that being on duty in a bank isdifferent from being on duty in a factory since a bank is avery sensitive area.

44

_______________

37 Records, pp. 263-267, Exhibit „10.‰38 Id., at pp. 268-270, Exhibit „11.‰39 Id., at pp. 271-274, Exhibit „12.‰40 Id., at pp. 275-279, Exhibit „13.‰41 TSN, April 11, 2000, p. 26.42 Id., at pp. 30-31.43 TSN, May 19, 1999, pp. 15-16.44 TSN, April 4, 2002, p. 83.

89

VOL. 511, DECEMBER 14, 2006 89


Moreover, considering his reactions to EvangelineÊs act ofjust depositing her firearm for safekeeping, i.e., ofimmediately shooting her, confirms that there was notraining or seminar given on how to handle bank clientsand on human psychology.

Furthermore, while Safeguard would like to show that






there were inspectors who go around the bank two times aday to see the daily performance of the security guardsassigned therein, there was no record ever presented ofsuch daily inspections. In fact, if there was really suchinspection made, the alleged suspicious act of Evangelinecould have been taken noticed and reported.

Turning now to the award of damages, we find that theaward of actual damages in the amount P157,430.00 whichwere the expenses incurred by respondents in connectionwith the burial of Evangeline were supported by receipts.The award of P50,000.00 as civil indemnity for the death ofEvangeline is likewise in order.

As to the award of moral damages, Article 2206 of theCivil Code provides that the spouse, legitimate childrenand illegitimate descendants and ascendants of thedeceased may demand moral damages for mental anguishby reason of the death of the deceased. Moral damages areawarded to enable the injured party to obtain means,diversions or amusements that will serve to alleviate themoral suffering he/she has undergone, by reason of thedefendantÊs culpable action. Its award is aimed atrestoration, as much as possible, of the spiritual status quo

ante; thus it must be proportionate to the sufferinginflicted.

45 The intensity of the pain experienced by the

relatives of the victim is proportionate to the intensity of

_______________

45 Pleyto v. Lomboy, G.R. No. 148737, June 16, 2004, 432 SCRA 329,

342.

90



affection for him and bears no relation whatsoever with thewealth or means of the offender.

46

In this case, respondents testified as to their moralsuffering caused by EvangelineÊs death was so suddencausing respondent Lauro to lose a wife and a mother to sixchildren who were all minors at the time of her death. In





People v. Teehankee, Jr.,47

we awarded one million pesos asmoral damages to the heirs of a seventeen-year-old girl whowas murdered. In Metro Manila Transit Corporation v.

Court of Appeals,48

we likewise awarded the amount of onemillion pesos as moral damages to the parents of a thirdyear high school student and who was also their youngestchild who died in a vehicular accident since the girlÊs deathleft a void in their lives. Hence, we hold that therespondents are also entitled to the amount of one millionpesos as EvangelineÊs death left a void in the lives of herhusband and minor children as they were deprived of herlove and care by her untimely demise.

We likewise uphold the award of exemplary damages inthe amount of P300,000.00. Under Article 2229 of the CivilCode, exemplary damages are imposed by way of exampleor correction for the public good, in addition to moral,temperate, liquidated or compensatory damages.

49 It is

awarded as a deterrent to socially deleterious actions. Inquasi-delict, exemplary damages may be granted if thedefendant acted with gross negligence.

50

Pursuant to Article 2208 of the Civil Code, attorneyÊsfees may be recovered when, as in the instant case,exemplary damages are awarded. Hence, we affirm theaward of attorneyÊs fees in the amount of P30,000.00.

_______________

46 Secosa v. Heirs of Erwin Suarez Francisco, G.R. No. 160039, June

29, 2004, 433 SCRA 273, 282.47 319 Phil. 128, 216; 249 SCRA 54, 125 (1995).48 Supra note 35, at p. 44; p. 516.49 CIVIL CODE, Art. 2229.50 CIVIL CODE, Art. 2231.

91

VOL. 511, DECEMBER 14, 2006 91


WHEREFORE, the petition for review is DENIED. TheDecision dated July 16, 2004 of the Court of Appeals is







AFFIRMED with MODIFICATION that the civil liability ofpetitioner Safeguard Security Agency, Inc. is SOLIDARYand PRIMARY under Article 2180 of the Civil Code.

SO ORDERED.

Ynares-Santiago (Working Chairperson), Callejo, Sr.

and Chico-Nazario, JJ., concur. Panganiban (C.J., Chairperson), Retired as of

December 7, 2006.

Petition denied, judgment affirmed with modification.

Notes.·In negligence cases, the offended party (or hisheirs) has the option between an action for enforcement ofcivil liability based on culpa criminal under Article 100 ofthe Revised Penal Code and an action for recovery ofdamages based on culpa aquiliana under Article 2176 ofthe Civil Code. (Ace Haulers Corporation vs. Court of

Appeals, 338 SCRA 572 [2000])Where the loss of a hotel guestÊs money was

consummated through the negligence of the hotelemployees in allowing the companion of said guest to openthe safety deposit box without the guestÊs consent, both theassisting employees and the hotel owner and operator aresolidarily liable. (YHT Realty Corporation vs. Court of

Appeals, 451 SCRA 638 [2005])

··o0o··

92


Sy vs. Secretary of Justice



Page 1 of 29http://www.central.com.ph/sfsreader/session/0000014fd189d8df54258270000a0094004f00ee/p/AKF359/?username=Guest


Philippine Rabbit Bus Lines, Inc. vs. People

G.R. No. 147703. April 14, 2004.*

PHILIPPINE RABBIT BUS LINES, INC., petitioner, vs.PEOPLE OF THE PHILIPPINES, respondent.

Criminal Law; Criminal Procedure; Appeals; Double Jeopardy;Parties; Both the accused and the prosecution may appeal a criminalcase, but the government may do so only if the accused would notthereby be placed in double jeopardy; The offended parties may alsoappeal the judgment with respect to their right to civil liability.·Section 1 of Rule 122 of the 2000 Revised Rules of CriminalProcedure states thus: „Any party may appeal from a judgment orfinal order, unless the accused will be placed in double jeopardy.‰Clearly, both the accused and the prosecution may appeal acriminal case, but the government may do so only if the accusedwould not thereby be placed in double jeopardy. Furthermore, theprosecution cannot appeal on the ground that the accused shouldhave been given a more severe penalty. On the other hand, theoffended parties may also appeal the judgment with respect to theirright to civil liability. If the accused has the right to appeal thejudgment of conviction, the offended parties should have the sameright to appeal as much of the judgment as is prejudicial to them.

Same; Same; Same; Well-established is the principle that theappellate court may, upon motion or motu proprio, dismiss anappeal during its pendency if the accused jumps bail, on therationale that the appellant loses his standing in court when heabsconds.·Well-established in our jurisdiction is the principle thatthe appellate court may, upon motion or motu proprio, dismiss anappeal during its pendency if the accused jumps bail. The secondparagraph of Section 8 of Rule 124 of the 2000 Revised Rules ofCriminal Procedure provides: „The Court of Appeals may also, upon

http://www.central.com.ph/sfsreader/session/0000014fd189d8df54258270000a0094004f00ee/p/AKF359/?username=Guest#p427scra8960456001



motion of the appellee or motu proprio, dismiss the appeal if theappellant escapes from prison or confinement, jumps bail or flees toa foreign country during the pendency of the appeal.‰ This rule isbased on the rationale that appellants lose their standing in courtwhen they abscond. Unless they surrender or submit to the courtÊsjurisdiction, they are deemed to have waived their right to seekjudicial relief. Moreover, this doctrine applies not only to theaccused who jumps bail during the appeal, but also to one who doesso during the trial. Justice Florenz D. Regalado succinctly explainsthe principle in this wise: „x x x. When, as in this case, the accusedescaped after his arraignment and during the trial, but the trial inabsentia proceeded resulting in the promulgation of a judgmentagainst him and his counsel appealed, since he nonethelessremained at large his

_______________

* FIRST DIVISION.

457

VOL. 427, APRIL 14, 2004 457


appeal must be dismissed by analogy with the aforesaid provision ofthis Rule [Rule 124, §8 of the Rules on Criminal Procedure]. x x x‰

Same; Same; Same; An accused who has escaped and refused tosurrender to the proper authorities is deemed to have abandoned hisappeal rendering the judgment against him final and executory.·Asto when a judgment of conviction attains finality is explained inSection 7 of Rule 120 of the 2000 Rules of Criminal Procedure,which we quote: „A judgment of conviction may, upon motion of theaccused, be modified or set aside before it becomes final or beforeappeal is perfected. Except where the death penalty is imposed, ajudgment becomes final after the lapse of the period for perfectingan appeal, or when the sentence has been partially or totallysatisfied or served, or when the accused has waived in writing hisright to appeal, or has applied for probation.‰ In the case before us,



the accused-employee has escaped and refused to surrender to theproper authorities; thus, he is deemed to have abandoned hisappeal. Consequently, the judgment against him has become finaland executory.

Same; Same; Independent Civil Actions; The 2000 Rules ofCriminal Procedure has clarified what civil actions are deemedinstituted in a criminal prosecution·it is only the civil liability ofthe accused arising from the crime charged that is deemed impliedlyinstituted in a criminal action.·At the outset, we must explain thatthe 2000 Rules of Criminal Procedure has clarified what civilactions are deemed instituted in a criminal prosecution. x x x Onlythe civil liability of the accused arising from the crime charged isdeemed impliedly instituted in a criminal action; that is, unless theoffended party waives the civil action, reserves the right to instituteit separately, or institutes it prior to the criminal action. Hence, thesubsidiary civil liability of the employer under Article 103 of theRevised Penal Code may be enforced by execution on the basis ofthe judgment of conviction meted out to the employee.

Same; Same; Same; The 2000 Rules deleted the requirement ofreserving independent civil actions and allowed these to proceedseparately from criminal actions·what is deemed instituted in everycriminal prosecution is the civil liability arising from the crime ordelict per se (civil liability ex delicto), but not those liabilities arisingfrom quasi-delicts, contracts or quasi-contracts.·It is clear that the2000 Rules deleted the requirement of reserving independent civilactions and allowed these to proceed separately from criminalactions. Thus, the civil actions referred to in Articles 32, 33, 34 and2176 of the Civil Code shall remain „separate, distinct andindependent‰ of any criminal prosecution based on the same act.Here are some direct consequences of such revision and omission: 1.The right to bring the foregoing actions based on the Civil Codeneed not be reserved in the criminal prosecution, since they are notdeemed included therein. 2.

458





The institution or the waiver of the right to file a separate civilaction arising from the crime charged does not extinguish the rightto bring such action. 3. The only limitation is that the offendedparty cannot recover more than once for the same act or omission.What is deemed instituted in every criminal prosecution is the civilliability arising from the crime or delict per se (civil liability exdelicto), but not those liabilities arising from quasi-delicts, contractsor quasi-contracts. In fact, even if a civil action is filed separately,the ex delicto civil liability in the criminal prosecution remains, andthe offended party may·subject to the control of the prosecutor·still intervene in the criminal action, in order to protect theremaining civil interest therein.

Same; Same; Subsidiary Civil Liability; Parties; The casesdealing with the subsidiary liability of employers uniformly declarethat, strictly speaking, the employers are not parties to the criminalcases instituted against their employees; While employers may assisttheir employees to the extent of supplying the latterÊs lawyers, theformer cannot act independently on their own behalf, but can onlydefend the accused.·In its Memorandum, petitioner cited acomprehensive list of cases dealing with the subsidiary liability ofemployers. Thereafter, it noted that none can be applied to it,because „in all th[o]se cases, the accusedÊs employer did notinterpose an appeal.‰ Indeed, petitioner cannot cite any single casein which the employer appealed, precisely because an appeal insuch circumstances is not possible. The cases dealing with thesubsidiary liability of employers uniformly declare that, strictlyspeaking, they are not parties to the criminal cases institutedagainst their employees. Although in substance and in effect, theyhave an interest therein, this fact should be viewed in the light oftheir subsidiary liability. While they may assist their employees tothe extent of supplying the latterÊs lawyers, as in the present case,the former cannot act independently on their own behalf, but canonly defend the accused.

Same; Same; Same; Same; An employerÊs appeal would violatethe employeeÊs right against double jeopardy since the judgmentagainst the latter could become subject to modification without hisconsent.·An appeal from the sentence of the trial court implies awaiver of the constitutional safeguard against double jeopardy andthrows the whole case open to a review by the appellate court. Thelatter is then called upon to render judgment as law and justicedictate, whether favorable or unfavorable to the, appellant. This is



the risk involved when the accused decides to appeal a sentence ofconviction. Indeed, appellate courts have the power to reverse,affirm or modify the judgment of the lower court and to increase orreduce the penalty it imposed. If the present appeal is given course,the whole case against the accused-employee becomes open toreview. It thus follows that a penalty higher than that which hasalready been imposed by

459

VOL. 427, APRIL 14, 2004 459


the trial court may be meted out to him. PetitionerÊs appeal wouldthus violate his right against double jeopardy, since the judgmentagainst him could become subject to modification without hisconsent. We are not in a position to second-guess the reason whythe accused effectively waived his right to appeal by jumping bail. Itis clear, though, that petitioner may not appeal without violatinghis right against double jeopardy.

Same; Same; Same; An accused, by fleeing, exhibits contempt ofthe authority of the court and places himself in a position tospeculate on his chances for a reversal.·By fleeing, the hereinaccused exhibited contempt of the authority of the court and placedhimself in a position to speculate on his chances for a reversal. Inthe process, he kept himself out of the reach of justice, but hoped torender the judgment nugatory at his option. Such conduct isintolerable and does not invite leniency on the part of the appellatecourt. Consequently, the judgment against an appellant whoescapes and who refuses to surrender to the proper authoritiesbecomes final and executory.

Same; Same; Same; The provisions of the Revised Penal Codeon subsidiary liability·Articles 102 and 103·are deemed writteninto the judgments in the cases to which they are applicable.·UnderArticle 103 of the Revised Penal Code, employers are subsidiarilyliable for the adjudicated civil liabilities of their employees in theevent of the latterÊs insolvency. The provisions of the Revised PenalCode on subsidiary liability·Articles 102 and 103·are deemedwritten into the judgments in the cases to which they are



applicable. Thus, in the dispositive portion of its decision, the trialcourt need not expressly pronounce the subsidiary liability of theemployer.

Same; Same; Same; To allow employers to dispute the civilliability fixed in a criminal case would enable them to amend,nullify or defeat a final judgment rendered by a competent court;The decision convicting an employee in a criminal case is bindingand conclusive upon the employer not only with regard to theformerÊs civil liability, but also with regard to its amount.·In theabsence of any collusion between the accused-employee and theoffended party, the judgment of conviction should bind the personwho is subsidiarily liable. In effect and implication, the stigma of acriminal conviction surpasses mere civil liability. To allowemployers to dispute the civil liability fixed in a criminal case wouldenable them to amend, nullify or defeat a final judgment renderedby a competent court. By the same token, to allow them to appealthe final criminal conviction of their employees without the latterÊsconsent would also result in improperly amending, nullifying ordefeating the judgment. The decision convicting an employee in acriminal case is binding and conclusive upon the employer not onlywith regard to the formerÊs civil liability, but also with

460



regard to its amount. The liability of an employer cannot beseparated from that of the employee.

Same; Same; Same; Requisites.·Before the employersÊsubsidiary liability is exacted, however, there must be adequateevidence establishing that (1) they are indeed the employers of theconvicted employees; (2) that the former are engaged in some kindof industry; (3) that the crime was committed by the employees inthe discharge of their duties; and (4) that the execution against thelatter has not been satisfied due to insolvency. The resolution ofthese issues need not be done in a separate civil action. But thedetermination must be based on the evidence that the offendedparty and the employer may fully and freely present. Such



determination may be done in the same criminal action in whichthe employeeÊs liability, criminal and civil, has been pronounced;and in a hearing set for that precise purpose, with due notice to theemployer, as part of the proceedings for the execution of thejudgment.

Same; Same; Same; There is only one criminal case against theaccused-employee, and a finding of guilt has both criminal and civilaspects·it is the height of absurdity for this single case to be finalas to the accused who jumped bail, but not as to an entity whoseliability is dependent upon the conviction of the former; Where thecivil liability of the accused-employee has become final andenforceable by reason of his flight, then his employerÊs subsidiarycivil liability has also become immediately enforceable.·Accordingto the argument of petitioner, fairness dictates that while thefinality of conviction could be the proper sanction to be imposedupon the accused for jumping bail, the same sanction should notaffect it. In effect, petitioner-employer splits this case into two: first,for itself; and second, for its accused-employee. The untenability ofthis argument is clearly evident. There is only one criminal caseagainst the accused-employee. A finding of guilt has both criminaland civil aspects. It is the height of absurdity for this single case tobe final as to the accused who jumped bail, but not as to an entitywhose liability is dependent upon the conviction of the former. Thesubsidiary liability of petitioner is incidental to and dependent onthe pecuniary civil liability of the accused-employee. Since the civilliability of the latter has become final and enforceable by reason ofhis flight, then the formerÊs subsidiary civil liability has alsobecome immediately enforceable. Respondent is correct in arguingthat the concept of subsidiary liability is highly contingent on theimposition of the primary civil liability.

Same; Same; Same; Appeals; The right to appeal is neither anatural right nor a part of due process.·As to the argument thatpetitioner was deprived of due process, we reiterate that what issought to be enforced is the subsidiary civil liability incident to anddependent upon the employeeÊs

461

VOL. 427, APRIL 14, 2004 461




criminal negligence. In other words, the employer becomes ipsofacto subsidiarily liable upon the conviction of the employee andupon proof of the latterÊs insolvency, in the same way that acquittalwipes out not only his primary civil liability, but also his employerÊssubsidiary liability for his criminal negligence. It should be stressedthat the right to appeal is neither a natural right nor a part of dueprocess. It is merely a procedural remedy of statutory origin, aremedy that may be exercised only in the manner prescribed by theprovisions of law authorizing such exercise. Hence, the legalrequirements must be strictly complied with.

Same; Same; Same; Same; Due Process; It can be said that byjumping bail, the accused-employee, not the court, deprived theemployer of the right to appeal.·After a judgment has become final,vested rights are acquired by the winning party. If the proper losingparty has the right to file an appeal within the prescribed period,then the former has the correlative right to enjoy the finality of theresolution of the case. In fact, petitioner admits that by helping theaccused-employee, it participated in the proceedings before theRTC; thus, it cannot be said that the employer was deprived of dueprocess. It might have lost its right to appeal, but it was not deniedits day in court. In fact, it can be said that by jumping bail, theaccused-employee, not the court, deprived petitioner of the right toappeal.

PETITION for review on certiorari of the resolutions of theCourt of Appeals.

The facts are stated in the opinion of the Court. Peter H. Santiago for petitioner. Ramon M. Nisce collaborating counsel for petitioner. The Solicitor General for the people. Romulo Rivera and Benjamin Z. De Leon, Jr. private

prosecutors.

PANGANIBAN, J.:

When the accused-employee absconds or jumps bail, thejudgment meted out becomes final and executory. Theemployer cannot defeat the finality of the judgment byfiling a notice of appeal on its own behalf in the guise of



Âa.

asking for a review of its subsidiary civil liability. Both theprimary civil liability of the accused-employee and thesubsidiary civil liability of the employer are carried in onesingle decision that has become final and executory.

462



The Case

Before this Court is a Petition for Review1 under Rule 45 of

the Rules of Court, assailing the March 29, 20002 and the

March 27, 20013 Resolutions of the Court of Appeals (CA)

in CA-G.R. CV No. 59390. PetitionerÊs appeal from thejudgment of the Regional Trial Court (RTC) of SanFernando, La Union in Criminal Case No. 2535 wasdismissed in the first Resolution as follows:

„WHEREFORE, for all the foregoing, the motion to dismiss isGRANTED and the appeal is ordered DISMISSED.‰

4

The second Resolution denied petitionerÊs Motion forReconsideration.

5

The Facts

The facts of the case are summarized by the CA in thiswise:

„On July 27, 1994, accused [Napoleon Roman y Macadangdang] wasfound guilty and convicted of the crime of reckless imprudenceresulting to triple homicide, multiple physical injuries and damageto property and was sentenced to suffer the penalty of four (4)years, nine (9) months and eleven (11) days to six (6) years, and topay damages as follows:

to pay the heirs of JUSTINO TORRES the sum ofP50,000.00 as indemnity for his death, plus the sum ofP25,383.00, for funeral expenses, his unearned income for








Âb.

Âc.

Âd.

Âe.

Âf.

one year at P2,500.00 a month, P50,000.00 as indemnity forthe support of Renato Torres, and the further sum ofP300,000.00 as moral damages;

to the heirs of ESTRELLA VELERO, the sum of P50,000.00as indemnity for her death, the sum of P237,323.75 forfuneral expenses, her unearned income for three years atP45,000.00 per annum, and the further sum ofP1,000,000.00 as moral damages and P200,000.00 asattorneyÊs fees[;]

_______________

1 Rollo, pp. 9-28.2 Id., pp. 30-34. Penned by Justice Mariano M. Umali and concurred in

by Justices Conrado M. Vasquez, Jr. (Division chair) and Edgardo P. Cruz

(member).3 Id., pp. 36-37.4 CA Decision, p. 5; Rollo, p. 34.5 Annex „G‰ of the Petition; Rollo, pp. 115-124.

463

VOL. 427, APRIL 14, 2004 463


to the heirs of LORNA ANCHETA, the sum of P50,000.00 asindemnity for her death, the sum of P22,838.00 as funeralexpenses, the sum of P20,544.94 as medical expenses andher loss of income for 30 years at P1,000.00 per month, andthe further sum of P100,000.00 for moral damages;

to MAUREEN BRENNAN, the sum of P229,654.00 ashospital expenses, doctorÊs fees of P170,000.00 for theorthopedic surgeon, P22,500.00 for the [n]eurologist, anadditional indemnity [of] at least P150,000.00 to coverfuture correction of deformity of her limbs, and moraldamages in the amount of P1,000,000.00;

to ROSIE BALAJO, the sum of P3,561.46 as medicalexpenses, P2,000.00 as loss of income, and P25,000.00 asmoral damages;

to TERESITA TAMONDONG, the sum of P19,800.47 asmedical expenses, P800.00 for loss of income, and



Âg.

Âh.

Âi.

Âj.

Âk.

P25,000.00 as moral damages;

to JULIANA TABTAB, the amount of P580.81 as medicalexpenses, P4,600.00 as actual damages and her lossearnings of P1,400.00 as well as moral damages in theamount of P10,000.00;

to MIGUEL ARQUITOLA, the sum of P12,473.82 ashospital expenses, P14,530.00 as doctorÊs fees, P1,000.00 formedicines and P50,000.00 as moral damages;

to CLARITA CABANBAN, the sum of P155.00 for medicalexpenses, P87.00 for medicines, P1,710.00 as actualdamages and P5,000.00 as moral damages;

to MARIANO CABANBAN, the sum of P1,395.00 forhospital bills, P500.00 for medicine, P2,100.00 as actualdamages, P1,200.00 for loss of income and P5,000.00 asmoral damages;

to La Union Electric Company as the registered owner ofthe Toyota Hi-Ace Van, the amount of P250,000.00 as actualdamages for the cost of the totally wrecked vehicle; to theowner of the jeepney, the amount of P22,698.38 as actualdamagesÊ;

„The court further ruled that [petitioner], in the event of theinsolvency of accused, shall be liable for the civil liabilities of theaccused. Evidently, the judgment against accused had become finaland executory.

„Admittedly, accused had jumped bail and remained at-large. Itis worth mention[ing] that Section 8, Rule 124 of the Rules of Courtauthorizes the dismissal of appeal when appellant jumps bail.Counsel for accused, also admittedly hired and provided by[petitioner], filed a notice of appeal which was denied by the trialcourt. We affirmed the denial of the notice of appeal filed in behalfof accused.

464



„Simultaneously, on August 6, 1994, [petitioner] filed its notice ofappeal from the judgment of the trial court. On April 29, 1997, thetrial court gave due course to [petitionerÊs] notice of appeal. On



December 8, 1998, [petitioner] filed its brief. On December 9, 1998,the Office of the Solicitor General received [a] copy of [petitionerÊs]brief. On January 8, 1999, the OSG moved to be excused from filing[respondentsÊ] brief on the ground that the OSGÊs authority torepresent People is confined to criminal cases on appeal. Themotion was however denied per Our resolution of May 31, 1999. OnMarch 2, 1999, [respondent]/private prosecutor filed the instantmotion to dismiss.‰

6 (Citations omitted)

Ruling of the Court of Appeals

The CA ruled that the institution of a criminal case impliedthe institution also of the civil action arising from theoffense. Thus, once determined in the criminal case againstthe accused-employee, the employerÊs subsidiary civilliability as set forth in Article 103 of the Revised PenalCode becomes conclusive and enforceable.

The appellate court further held that to allow anemployer to dispute independently the civil liability fixedin the criminal case against the accused-employee would beto amend, nullify or defeat a final judgment. Since thenotice of appeal filed by the accused had already beendismissed by the CA, then the judgment of conviction andthe award of civil liability became final and executory.Included in the civil liability of the accused was theemployerÊs subsidiary liability.


The Issues

Petitioner states the issues of this case as follows:

_______________

6 CA Decision, pp. 2-4; Rollo, pp. 31-33.7 The case was deemed submitted for resolution on April 24, 2002,

upon this CourtÊs receipt of respondentÊs Memorandum signed by

Assistant Solicitors General Carlos N. Ortega and Roman G. del Rosario

and Associate Solicitor Elizabeth Victoria L. Medina. PetitionerÊs

Memorandum, signed by Atty. Ramon M. Nisce, was received by the

Court on April 9, 2002.





„A.

„B.

465

VOL. 427, APRIL 14, 2004 465


Whether or not an employer, who dutifullyparticipated in the defense of its accused-employee,may appeal the judgment of convictionindependently of the accused.

Whether or not the doctrines of Alvarez v. Court ofAppeals (158 SCRA 57) and Yusay v. Adil (164SCRA 494) apply to the instant case.‰

8

There is really only one issue. Item B above is merely anadjunct to Item A.

The CourtÊs Ruling

The Petition has no merit.

Main Issue: Propriety of Appeal by the Employer

Pointing out that it had seasonably filed a notice of appealfrom the RTC Decision, petitioner contends that thejudgment of conviction against the accused-employee hasnot attained finality. The former insists that its appealstayed the finality, notwithstanding the fact that the latterhad jumped bail. In effect, petitioner argues that its appealtakes the place of that of the accused-employee.

We are not persuaded.

Appeals in Criminal Cases

Section 1 of Rule 122 of the 2000 Revised Rules of CriminalProcedure states thus:

„Any party may appeal from a judgment or final order, unless theaccused will be placed in double jeopardy.‰

Clearly, both the accused and the prosecution may appeal acriminal case, but the government may do so only if the




accused would not thereby be placed in double jeopardy.9

Furthermore, the prosecution cannot appeal on the groundthat the accused should have been given a more severepenalty.

10 On the other hand, the

_______________

8 PetitionerÊs Memorandum, p. 8; Rollo, p. 200.9 Regalado, Remedial Law Compendium, Vol. II (2001, 9th revised

edition), p. 502.10 Ibid.

466



offended parties may also appeal the judgment with respectto their right to civil liability. If the accused has the right toappeal the judgment of conviction, the offended partiesshould have the same right to appeal as much of thejudgment as is prejudicial to them.

11

Appeal by the Accused Who Jumps Bail

Well-established in our jurisdiction is the principle that theappellate court may, upon motion or motu proprio, dismissan appeal during its pendency if the accused jumps bail.The second paragraph of Section 8 of Rule 124 of the 2000Revised Rules of Criminal Procedure provides:

„The Court of Appeals may also, upon motion of the appellee ormotu proprio, dismiss the appeal if the appellant escapes fromprison or confinement, jumps bail or flees to a foreign countryduring the pendency of the appeal.‰

12

This rule is based on the rationale that appellants losetheir standing in court when they abscond. Unless theysurrender or submit to the courtÊs jurisdiction, they aredeemed to have waived their right to seek judicial relief.

13

Moreover, this doctrine applies not only to the accusedwho jumps bail during the appeal, but also to one who does








so during the trial. Justice Florenz D. Regalado succinctlyexplains the principle in this wise:

„x x x. When, as in this case, the accused escaped after hisarraignment and during the trial, but the trial in absentiaproceeded resulting in the promulgation of a judgment against himand his counsel appealed, since he nonetheless remained at largehis appeal must be dismissed by analogy with the aforesaidprovision of this Rule [Rule 124, §8 of the Rules on CriminalProcedure]. x x x‰

14

_______________

11 People v. Ursua, 60 Phil. 252, August 1, 1934.12 This is substantially the same as the 1985 Rules on Criminal

Procedure.13 People v. Del Rosario, 348 SCRA 603, December 19, 2000.14 Regalado, Remedial Law Compendium, supra, p. 540.

467

VOL. 427, APRIL 14, 2004 467


The accused cannot be accorded the right to appeal unlessthey voluntarily submit to the jurisdiction of the court orare otherwise arrested within 15 days from notice of thejudgment against them.

15 While at large, they cannot seek

relief from the court, as they are deemed to have waivedthe appeal.

16

Finality of a Decision in a Criminal Case

As to when a judgment of conviction attains finality isexplained in Section 7 of Rule 120 of the 2000 Rules ofCriminal Procedure, which we quote:

„A judgment of conviction may, upon motion of the accused, bemodified or set aside before it becomes final or before appeal isperfected. Except where the death penalty is imposed, a judgmentbecomes final after the lapse of the period for perfecting an appeal,or when the sentence has been partially or totally satisfied or






served, or when the accused has waived in writing his right toappeal, or has applied for probation.‰

In the case before us, the accused-employee has escapedand refused to surrender to the proper authorities; thus, heis deemed to have abandoned his appeal. Consequently, thejudgment against him has become final and executory.

17

Liability of an Employer in a Finding of Guilt

Article 102 of the Revised Penal Code states the subsidiarycivil liabilities of innkeepers, as follows:

„In default of the persons criminally liable, innkeepers,tavernkeepers, and any other persons or corporations shall becivilly liable for crimes committed in their establishments, in allcases where a violation of municipal ordinances or some general orspecial police regulation shall have been committed by them ortheir employees.

„Innkeepers are also subsidiarily liable for restitution of goodstaken by robbery or theft within their houses from guests lodgingtherein, or for

_______________

15 Ibid.

16 Ibid., citing People v. Mapalao, 274 Phil. 354; 197 SCRA 79, May 14, 1991.

17 People v. Enoja, 378 Phil. 623; 321 SCRA 7, December 17, 1999.

468



payment of the value thereof, provided that such guests shall havenotified in advance the innkeeper himself, or the personrepresenting him, of the deposit of such goods within the inn; andshall furthermore have followed the directions which suchinnkeeper or his representative may have given them with respectto the care and vigilance over such goods. No liability shall attach incase of robbery with violence against or intimidation of personsunless committed by the innkeeperÊs employees.‰




Moreover, the foregoing subsidiary liability applies toemployers, according to Article 103 which reads:

„The subsidiary liability established in the next preceding articleshall also apply to employers, teachers, persons, and corporationsengaged in any kind of industry for felonies committed by theirservants, pupils, workmen, apprentices, or employees in thedischarge of their duties.‰

Having laid all these basic rules and principles, we nowaddress the main issue raised by petitioner.

Civil Liability Deemed Instituted in the Criminal Prosecution

At the outset, we must explain that the 2000 Rules ofCriminal Procedure has clarified what civil actions aredeemed instituted in a criminal prosecution.

Section 1 of Rule 111 of the current Rules of CriminalProcedure provides:

„When a criminal action is instituted, the civil action for therecovery of civil liability arising from the offense charged shall bedeemed instituted with the criminal action unless the offendedparty waives the civil action, reserves the right to institute itseparately or institutes the civil action prior to the criminal action.

„x x x x x x x x x‰

Only the civil liability of the accused arising from the crimecharged is deemed impliedly instituted in a criminal action;that is, unless the offended party waives the civil action,reserves the right to institute it separately, or institutes itprior to the criminal action.

18 Hence, the subsidiary civil

liability of the employer under

_______________

18 Panganiban, Transparency, Unanimity & Diversity (2000 ed.), pp.

211-212.

469

VOL. 427, APRIL 14, 2004 469





„(1)

„(2)

„(3)

„(4)

„(5)

„(6)

„(7)

„(8)

„(9)

„(10)

„(11)

„(12)

„(13)

„(14)

„(15)

„(16)

Article 103 of the Revised Penal Code may be enforced byexecution on the basis of the judgment of conviction metedout to the employee.

19

It is clear that the 2000 Rules deleted the requirementof reserving independent civil actions and allowed these toproceed separately from criminal actions. Thus, the civilactions referred to in Articles 32,

20

_______________

19 Id., p. 212.20 „ART. 32. Any public officer or employee, or any private individual,

who directly or indirectly obstructs, defeats, violates or in any manner

impedes or impairs any of the following rights and liberties of another

person shall be liable to the latter for damages:

Freedom of religion;

Freedom of speech;

Freedom to write for the press or to maintain a periodical

publication;

Freedom from arbitrary or illegal detention;

Freedom of suffrage;

The right against deprivation of property without due process of

law;

The right to a just compensation when private property is taken

for public use;

The right to the equal protection of the laws;

The right to be secure in oneÊs person, house, papers, and effects

against unreasonable searches and seizures;

The liberty of abode and of changing the same;

The privacy of communication and correspondence;

The right to become a member of associations or societies for

purposes not contrary to law;

The right to take part in a peaceable assembly to petition the

Government for redress of grievances;

The right to be free from involuntary servitude in any form;

The right of the accused against excessive bail;

The right of the accused to be heard by himself and counsel, to be

informed of the nature and cause of the accusation against him,

to have a speedy and public trial, to meet the witnesses face to





„(17)

1.

„(18)

„(19)

face, and to have compulsory process to secure the attendance of

witness in his behalf;

Freedom from being compelled to be a witness against oneÊs self,

or from being forced to confess guilt, or from being induced

470



33,21

3422

and 217623

of the Civil Code shall remain„separate, distinct and independent‰ of any criminalprosecution based on the same act. Here are some directconsequences of such revision and omission:

The right to bring the foregoing actions based on theCivil Code need not be reserved in the criminalprosecution, since they are not deemed included therein.

_______________

by a promise of immunity or reward to make such confession,

except when the person confessing becomes a State witness;

Freedom from excessive fines, or cruel and unusual punishment,

unless the same is imposed or inflicted in accordance with a

statute which has not been judicially declared unconstitutional;

and

Freedom of access to the courts.

„In any of the cases referred to in this article, whether or not the

defendantÊs act or omission constitutes a criminal offense, the aggrieved

party has a right to commence an entirely separate and distinct civil

action for damages, and for other relief. Such civil action shall proceed

independently of any criminal prosecution (if the latter be instituted),

and may be proved by a preponderance of evidence:

„The indemnity shall include moral damages. Exemplary damages

may also be adjudicated.

„The responsibility herein set forth is not demandable from a judge

unless his act or omission constitutes a violation of the Penal Code or

other penal statute.‰21 „ART. 33. In cases of defamation, fraud, and physical injuries, a civil






2.

3.

action for damages, entirely separate and distinct from the criminal

action, may be brought by the injured party. Such civil action shall

proceed independently of the criminal prosecution, and shall require only

a preponderance of evidence.‰22 „ART. 34. When a member of a city or municipal police force refuses

or fails to render aid or protection to any person in case of danger to life

or property, such peace officer shall be primarily liable for damages, and

the city or municipality shall be subsidiarily responsible therefor. The

civil action herein recognized shall be independent of any criminal

proceedings, and a preponderance of evidence shall suffice to support

such action.‰23 „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. (1902a)‰

471

VOL. 427, APRIL 14, 2004 471


The institution or the waiver of the right to file aseparate civil action arising from the crime chargeddoes not extinguish the right to bring such action.

The only limitation is that the offended partycannot recover more than once for the same act oromission.

24

What is deemed instituted in every criminal prosecution isthe civil liability arising from the crime or delict per se(civil liability ex delicto), but not those liabilities arisingfrom quasi-delicts, contracts or quasi-contracts. In fact,even if a civil action is filed separately, the ex delicto civilliability in the criminal prosecution remains, and theoffended party may·subject to the control of theprosecutor·still intervene in the criminal action, in orderto protect the remaining civil interest therein.

25

This discussion is completely in accord with the RevisedPenal Code, which states that „[e]very person criminallyliable for a felony is also civilly liable.‰

26






Petitioner argues that, as an employer, it is considered aparty to the criminal case and is conclusively bound by theoutcome thereof. Consequently, petitioner must be accordedthe right to pursue the case to its logical conclusion·including the appeal.

The argument has no merit. Undisputedly, petitioner isnot a direct party to the criminal case, which was filedsolely against Napoleon M. Roman, its employee.

In its Memorandum, petitioner cited a comprehensivelist of cases dealing with the subsidiary liability ofemployers. Thereafter, it noted that none can be applied toit, because „in all th[o]se cases, the accusedÊs employer didnot interpose an appeal.‰

27 Indeed, petitioner cannot cite

any single case in which the employer appealed, preciselybecause an appeal in such circumstances is not possible.

The cases dealing with the subsidiary liability ofemployers uniformly declare that, strictly speaking, theyare not parties to the criminal cases instituted againsttheir employees.

28 Although in substance and in effect, they

have an interest therein, this fact

_______________

24 Panganiban, Transparency, Unanimity & Diversity, supra, p. 214.25 Id., pp. 214-215.26 Article 100 of the Revised Penal Code.27 PetitionerÊs Memorandum, p. 13; Rollo, p. 205.28 Miranda v. Malate Garage & Taxicab, Inc., 99 Phil. 670, July 31,

1956.

472



should be viewed in the light of their subsidiary liability.While they may assist their employees to the extent ofsupplying the latterÊs lawyers, as in the present case, theformer cannot act independently on their own behalf, butcan only defend the accused.

Waiver of Constitutional Safeguard





Against Double Jeopardy

PetitionerÊs appeal obviously aims to have the accused-employee absolved of his criminal responsibility and thejudgment reviewed as a whole. These intentions areapparent from its AppellantÊs Brief

29 filed with the CA and

from its Petition30

before us, both of which claim that thetrial courtÊs finding of guilt „is not supported by competentevidence.‰

31

An appeal from the sentence of the trial court implies awaiver of the constitutional safeguard against doublejeopardy and throws the whole case open to a review by theappellate court. The latter is then called upon to renderjudgment as law and justice dictate, whether favorable orunfavorable to the, appellant.

32 This is the risk involved

when the accused decides to appeal a sentence ofconviction.

33 Indeed, appellate courts have the power to

reverse, affirm or modify the judgment of the lower courtand to increase or reduce the penalty it imposed.

34

If the present appeal is given course, the whole caseagainst the accused-employee becomes open to review. Itthus follows that a penalty higher than that which hasalready been imposed by the trial court may be meted outto him. PetitionerÊs appeal would thus violate his rightagainst double jeopardy, since the judgment against himcould become subject to modification without his consent.

We are not in a position to second-guess the reason whythe accused effectively waived his right to appeal byjumping bail. It is

_______________

29 CA Rollo, pp. 66-108.30 Rollo, pp. 9-28.31 AppellantÊs Brief, p. 14; CA Rollo, p. 84.32 Lontoc v. People, 74 Phil. 513, December 29, 1943.33 People v. Rondero, 320 SCRA 383, December 9, 1999.34 Lontoc v. People, supra; United States v. Abijan, 1 Phil. 83, January

7, 1902. See also §11 of Rule 124 of the 2000 Revised Rules of Criminal

Procedure.

473









VOL. 427, APRIL 14, 2004 473


clear, though, that petitioner may not appeal withoutviolating his right against double jeopardy.

Effect of Absconding on the Appeal Process

Moreover, within the meaning of the principles governingthe prevailing criminal procedure, the accused impliedlywithdrew his appeal by jumping bail and thereby made thejudgment of the court below final.

35 Having been a fugitive

from justice for a long period of time, he is deemed to havewaived his right to appeal. Thus, his conviction is now finaland executory. The Court in People v. Ang Gioc

36 ruled:

„There are certain fundamental rights which cannot be waived evenby the accused himself, but the right of appeal is not one of them.This right is granted solely for the benefit of the accused. He mayavail of it or not, as he pleases. He may waive it either expressly orby implication. When the accused flees after the case has beensubmitted to the court for decision, he will be deemed to havewaived his right to appeal from the judgment rendered against him.x x x.‰

37

By fleeing, the herein accused exhibited contempt of theauthority of the court and placed himself in a position tospeculate on his chances for a reversal. In the process, hekept himself out of the reach of justice, but hoped to renderthe judgment nugatory at his option.

38 Such conduct is

intolerable and does not invite leniency on the part of theappellate court.

39

Consequently, the judgment against an appellant whoescapes and who refuses to surrender to the properauthorities becomes final and executory.

40

Thus far, we have clarified that petitioner has no rightto appeal the criminal case against the accused-employee;that by jumping bail, he has waived his right to appeal; andthat the judgment in the criminal case against him is nowfinal.

_______________









35 Francisco, Criminal Procedure (1996, 3rd ed.), p. 520.36 73 Phil. 366, October 31, 1941.37 Id., p. 369, per Abad Santos, J.38 Francisco, Criminal Procedure, supra, p. 520.39 Ibid.40 People v. Enoja, supra.

474



Subsidiary Liability Upon Finality of Judgment

As a matter of law, the subsidiary liability of petitioner nowaccrues. Petitioner argues that the rulings of this Court inMiranda v. Malate Garage & Taxicab, Inc.,

41 Alvarez v. CA

42

and Yusay v. Adil43

do not apply to the present case,because it has followed the CourtÊs directive to theemployers in these cases to take part in the criminal casesagainst their employees. By participating in the defense ofits employee, herein petitioner tries to shield itself from theundisputed rulings laid down in these leading cases.

Such posturing is untenable. In dissecting these cases onsubsidiary liability, petitioner lost track of the most basictenet they have laid down·that an employerÊs liability in afinding of guilt against its accused-employee is subsidiary.

Under Article 103 of the Revised Penal Code, employersare subsidiarily liable for the adjudicated civil liabilities oftheir employees in the event of the latterÊs insolvency.

44 The

provisions of the Revised Penal Code on subsidiary liability·Articles 102 and 103·are deemed written into thejudgments in the cases to which they are applicable.

45

Thus, in the dispositive portion of its decision, the trialcourt need not expressly pronounce the subsidiary liabilityof the employer.

In the absence of any collusion between the accused-employee and the offended party, the judgment ofconviction should bind the person who is subsidiarilyliable.

46 In effect and implication, the stigma of a criminal

conviction surpasses mere civil liability.47










To allow employers to dispute the civil liability fixed in acriminal case would enable them to amend, nullify ordefeat a final judgment rendered by a competent court.

48 By

the same token, to allow them to appeal the final criminalconviction of their employ-

_______________

41 Supra at note 28.42 158 SCRA 57, February 23, 1988.43 164 SCRA 494, August 18, 1988.44 Lagazon v. Reyes, 166 SCRA 386, October 18, 1988.45 Alvarez v. Court of Appeals, supra.46 Martinez v. Barredo, 81 Phil. 1, May 13, 1948.47 Ibid.48 Yusay v. Adil, supra; Pajarito v. Señeris, 87 SCRA 275, December

14, 1978.

475

VOL. 427, APRIL 14, 2004 475


ees without the latterÊs consent would also result inimproperly amending, nullifying or defeating the judgment.

The decision convicting an employee in a criminal case isbinding and conclusive upon the employer not only withregard to the formerÊs civil liability, but also with regard toits amount. The liability of an employer cannot beseparated from that of the employee.

49

Before the employersÊ subsidiary liability is exacted,however, there must be adequate evidence establishingthat (1) they are indeed the employers of the convictedemployees; (2) that the former are engaged in some kind ofindustry; (3) that the crime was committed by theemployees in the discharge of their duties; and (4) that theexecution against the latter has not been satisfied due toinsolvency.

50

The resolution of these issues need not be done in aseparate civil action. But the determination must be basedon the evidence that the offended party and the employermay fully and freely present. Such determination may be






done in the same criminal action in which the employeeÊsliability, criminal and civil, has been pronounced;

51 and in a

hearing set for that precise purpose, with due notice to theemployer, as part of the proceedings for the execution of thejudgment.

Just because the present petitioner participated in thedefense of its accused-employee does not mean that itsliability has transformed its nature; its liability remainssubsidiary. Neither will its participation erase itssubsidiary liability. The fact remains that since theaccused-employeeÊs conviction has attained finality, thenthe subsidiary liability of the employer ipso facto attaches.

According to the argument of petitioner, fairnessdictates that while the finality of conviction could be theproper sanction to be imposed upon the accused forjumping bail, the same sanction should not affect it. Ineffect, petitioner-employer splits this case into two: first, foritself; and second, for its accused-employee.

_______________

49 Lagazon v. Reyes, supra; Miranda P. Malate Garage & Taxicab, Inc.,

supra.50 Ozoa v. Vda. de Madula, 156 SCRA 779, December 22, 1987.51 Ibid.

476



The untenability of this argument is clearly evident. Thereis only one criminal case against the accused-employee. Afinding of guilt has both criminal and civil aspects. It is theheight of absurdity for this single case to be final as to theaccused who jumped bail, but not as to an entity whoseliability is dependent upon the conviction of the former.

The subsidiary liability of petitioner is incidental to anddependent on the pecuniary civil liability of the accused-employee. Since the civil liability of the latter has becomefinal and enforceable by reason of his flight, then theformerÊs subsidiary civil liability has also become




immediately enforceable. Respondent is correct in arguingthat the concept of subsidiary liability is highly contingenton the imposition of the primary civil liability.

No Deprivation of Due Process

As to the argument that petitioner was deprived of dueprocess, we reiterate that what is sought to be enforced isthe subsidiary civil liability incident to and dependent uponthe employeeÊs criminal negligence. In other words, theemployer becomes ipso facto subsidiarily liable upon theconviction of the employee and upon proof of the latterÊsinsolvency, in the same way that acquittal wipes out notonly his primary civil liability, but also his employerÊssubsidiary liability for his criminal negligence.

52

It should be stressed that the right to appeal is neither anatural right nor a part of due process.

53 It is merely a

procedural remedy of statutory origin, a remedy that maybe exercised only in the manner prescribed by theprovisions of law authorizing such exercise.

54 Hence, the

legal requirements must be strictly complied with.55

_______________

52 Alvarez v. Court of Appeals, supra; Martinez v. Barredo, supra.53 Neplum, Inc. v. Orbeso, 384 SCRA 466, July 11, 2002.54 Oro v. Judge Diaz, 361 SCRA 108, July 11, 2001; Mercury Drug

Corp. v. Court of Appeals, 390 Phil. 902; 335 SCRA 567, July 13, 2000;

Ortiz v. Court of Appeals, 299 SCRA 708, December 4, 1998.55 Pedrosa v. Hill, 257 SCRA 373, June 14, 1996; Del Rosario v. Court

of Appeals, 241 SCRA 553, February 22, 1995.

477

VOL. 427, APRIL 14, 2004 477


It would be incorrect to consider the requirements of therules on appeal as merely harmless and trivialtechnicalities that can be discarded.

56 Indeed, deviations

from the rules cannot be tolerated.57

In these times whencourt dockets are clogged with numerous litigations, such









rules have to be followed by parties with greater fidelity, soas to facilitate the orderly disposition of those cases.

58

After a judgment has become final, vested rights areacquired by the winning party. If the proper losing partyhas the right to file an appeal within the prescribed period,then the former has the correlative right to enjoy thefinality of the resolution of the case.

59

In fact, petitioner admits that by helping the accused-employee, it participated in the proceedings before theRTC; thus, it cannot be said that the employer wasdeprived of due process. It might have lost its right toappeal, but it was not denied its day in court.

60 In fact, it

can be said that by jumping bail, the accused-employee, notthe court, deprived petitioner of the right to appeal.

All told, what is left to be done is to execute the RTCDecision against the accused. It should be clear that onlyafter proof of his insolvency may the subsidiary liability ofpetitioner be enforced. It has been sufficiently proven thatthere exists an employer-employee relationship; that theemployer is engaged in some kind of industry; and that theemployee has been adjudged guilty of the wrongful act andfound to have committed the offense in the discharge of hisduties. The proof is clear from the admissions of petitionerthat „[o]n 26 August 1990, while on its regular trip fromLaoag to Manila, a passenger bus owned by petitioner, beingthen operated by petitionerÊs driver, Napoleon Roman,figured in an accident in San Juan, La Union x x x.‰

61

Neither does petitioner dispute that there was already afinding of guilt against the accused while he was in thedischarge of his duties.

_______________

56 Casim v. Flordeliza, 374 SCRA 386, January 23, 2002.57 People v. Marong, 119 SCRA 430, December 27, 1982.58 Del Rosario v. Court of Appeals, supra.59 Videogram Regulatory Board v. Court of Appeals, 265 SCRA 50,

November 28, 1996.60 Neplum, Inc. v. Orbeso, supra.61 Petition for Review, p. 2; Rollo, p. 10; Memorandum for Petitioner, p.

2; Rollo, p. 194.

478








Litonjua vs. Fernandez

WHEREFORE, the Petition is hereby DENIED, and theassailed Resolutions AFFIRMED. Costs against petitioner.

SO ORDERED.

Davide, Jr. (C.J., Chairman), Ynares-Santiago,Carpio and Azcuna, JJ., concur.

Petition denied, assailed resolutions affirmed.

Notes.·While the Supreme Court has sanctioned theenforcement of the employerÊs subsidiary liability in thesame criminal proceedings in which the employee isadjudged guilty, execution against the employer must notissue as just a matter of course·it behooves the court, as ameasure of due process to the employer, to determine andresolve a priori, in a hearing set for the purpose, the legalapplicability and propriety of the employerÊs liability.(Yonaha vs. Court of Appeals, 255 SCRA 397 [1996])

A final judgment rendered in a civil case absolving thedefendant from civil liability is no bar to a criminal action.(Bordador vs. Luz, 283 SCRA 374 [1997])

··o0o··



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VOL. 350, JANUARY 29, 2001 387

Manantan vs. Court of Appeals

G.R. No. 107125. January 29, 2001.*

GEORGE MANANTAN, petitioner, vs. THE COURT OFAPPEALS, SPOUSES MARCELINO NICOLAS andMARIA NICO-LAS, respondents.

Criminal Procedure; Double Jeopardy; Elements; Appeals;There is no double jeopardy where, from a judgment of acquittal, anappeal was brought to the Court of Appeals by the privatecomplainant, elevating the civil aspect of the criminal case.·Preliminarily, petitionerÊs claim that the decision of the appellatecourt awarding indemnity placed him in double jeopardy ismisplaced. The constitution provides that „no person shall be twiceput in jeopardy for the same offense. If an act is punished by a lawand an ordinance, conviction or acquittal under either shallconstitute a

________________

* SECOND DIVISION.

388



bar to another prosecution for the same act." When a person ischarged with an offense and the case is terminated either by

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acquittal or conviction or in any other manner without the consentof the accused, the latter cannot again be charged with the same oridentical offense. This is double jeopardy. For double jeopardy toexist, the following elements must be established: (a) a firstjeopardy must have attached prior to the second; (2) the firstjeopardy must have terminated; and (3) the second jeopardy mustbe for the same offense as the first. In the instant case, petitionerhad once been placed in jeopardy by the filing of Criminal Case No.066 and the jeopardy was terminated by his discharge. Thejudgment of acquittal became immediately final. Note, however,that what was elevated to the Court of Appeals by privaterespondents was the civil aspect of Criminal Case No. 066.Petitioner was not charged anew in CA-G.R. CV No. 19240 with asecond criminal offense identical to the first offense. The recordsclearly show that no second criminal offense was being imputed topetitioner on appeal. In modifying the lower courtÊs judgment, theappellate court did not modify the judgment of acquittal. Nor did itorder the filing of a second criminal case against petitioner for thesame offense. Obviously, therefore, there was no second jeopardy tospeak of. PetitionerÊs claim of having been placed in double jeopardyis incorrect.

Same; Civil Liability; Damages; Our law recognizes two kindsof acquittal, with different effects on the civil liability of the accused·(a) first is an acquittal on the ground that the accused is not theauthor of the act or omission complained of and this instance closesthe door to civil liability, and, (b) second is an acquittal based onreasonable doubt on the guilt of the accused, in which case even ifthe guilt of the accused has not been satisfactorily established, he isnot exempt from civil liability which may be proved bypreponderance of evidence only.·Our law recognizes two kinds ofacquittal, with different effects on the civil liability of the accused.First is an acquittal on the ground that the accused is not theauthor of the act or omission complained of. This instance closes thedoor to civil liability, for a person who has been found to be not theperpetrator of any act or omission cannot and can never be heldliable for such act or omission. There being no delict, civil liabilityex delicto is out of the question, and the civil action, if any, whichmay be instituted must be based on grounds other than the delictcomplained of. This is the situation contemplated in Rule 111 of theRules of Court. The second instance is an acquittal based onreasonable doubt on the guilt of the accused. In this case, even if theguilt of the accused has not been satisfactorily established, he is not



exempt from civil liability which may be proved by preponderance ofevidence only. This is the, situation contemplated in Article 29 ofthe Civil Code, where the civil action for damages is „for the sameact or omission.‰ Al-

389

VOL. 350, JANUARY 29, 2001 389


through the two actions have different purposes, the mattersdiscussed in the civil case are similar to those discussed in thecriminal case. However, the judgment in the criminal proceedingcannot be read in evidence in the civil action to establish any factthere determined, even though both actions involve the same act oromission. The reason for this rule is that the parties are not thesame and secondarily, different rules of evidence are applicable.Hence, notwithstanding herein petitionerÊs acquittal, the Court ofAppeals in determining whether Article 29 applied, was notprecluded from looking into the question of petitionerÊs negligenceor reckless imprudence.

Same; Same; Same; Judgments; A finding in the trial courtÊsjudgment that „a hypothesis inconsistent with the negligence of theaccused presented itself before the Court‰ and since said „hypothesisis consistent with the record . . . the CourtÊs mind cannot rest on averdict of conviction‰ clearly shows that the acquittal of the accusedwas predicated on the conclusion that his guilt had not beenestablished with moral certainty, an acquittal based on reasonabledoubt.·Our scrutiny of the lower courtÊs decision in Criminal CaseNo. 066 supports the conclusion of the appellate court that theacquittal was based on reasonable doubt; hence, petitionerÊs civilliability was not extinguished by his discharge. We note the trialcourtÊs declaration that did not discount the possibility that „theaccused was really negligent.‰ However, it found that „a hypothesisinconsistent with the negligence of the accused presented itselfbefore the Court‰ and since said „hypothesis is consistent with therecord . . . the CourtÊs mind cannot rest on a verdict of conviction.‰The foregoing clearly shows that petitionerÊs acquittal waspredicated on the conclusion that his guilt had not been established



with moral certainty. Stated differently, it is an acquittal based onreasonable doubt and a suit to enforce civil liability for the same actor omission lies.

Same; Same; Same; Filing Fees; Before the adoption of the 1985Rules of Criminal Procedure, and the amendment of Rule 111,Section 1 of the 1985 Rules of Criminal Procedure by a resolution ofthe Supreme Court dated July 7, 1988, it was not required that thedamages sought by the offended party be stated in the complaint orinformation; The amendment, being in the nature of a curativestatute, applies retroactively and affects pending actions.·At thetime of the filing of the information in 1983, the implied institutionof civil actions with criminal actions was governed by Rule 111,Section 1 of the 1964 Rules of Court. As correctly pointed out byprivate respondents, under said rule, it was not required that thedamages sought by the offended party be stated in the complaint orinformation. With the adoption of the 1985 Rules of CriminalProcedure, and the

390



amendment of Rule 111, Section 1 of the 1985 Rules of CriminalProcedure by a resolution of this Court dated July 7, 1988, it is nowrequired that: When the offended party seeks to enforce civilliability against the accused by way of moral, nominal, temperate orexemplary damages, the filing fees for such civil action as providedin these Rules shall constitute a first lien on the judgment except inan award for actual damages. In cases wherein the amount ofdamages, other than actual, is alleged in the complaint orinformation, the corresponding filing fees shall be paid by theoffended party upon the filing thereof in court for trial. Theforegoing were the applicable provisions of the Rules of CriminalProcedure at the time private respondents appealed the civil aspectof Criminal Case No. 066 to the court a quo in 1989. Being in thenature of a curative statute, the amendment applies retroactivelyand affects pending actions as in this case.

Same; Same; Same; Same; Where the civil action is impliedly



instituted together with the criminal action, the actual damagesclaimed by the offended parties are not included in the computationof the filing fees·filing fees are to be paid only if other items ofdamages such as moral, nominal, temperate, or exemplary damagesare alleged in the complaint or information, or if they are not soalleged, shall constitute a first lien on the judgment.·Thus, wherethe civil action is impliedly instituted together with the criminalaction, the actual damages claimed by the offended parties, as inthis case, are not included in the computation of the filing fees.Filing fees are to be paid only if other items of damages such asmoral, nominal, temperate, or exemplary damages are alleged inthe complaint or information, or if they are not so alleged, shallconstitute a first lien on the judgment. Recall that the informationin Criminal Case No. 066 contained no specific allegations ofdamages. Considering that the Rules of Criminal Procedureeffectively guarantee that the filing fees for the award of damagesare a first lien on the judgment, the effect of the enforcement of saidlien must retroact to the institution of the criminal action. Thefiling fees are deemed paid from the Sling of the criminal complaintor information. We therefore find no basis for petitionerÊsallegations that the filing fees were not paid or improperly paid andthat the appellate court acquired no jurisdiction.

PETITION for review on certiorari of a decision of theCourt of Appeals.

The facts are stated in the opinion of the Court. Conrado P. Aoanan for petitioner.

391

VOL. 350, JANUARY 29, 2001 391


Jose M. De Vera for private respondents.

QUISUMBING, J.:

This is a petition for review of the decision dated January31, 1992 of the Court of Appeals in CA-G.R. CV No. 19240,modifying the judgment of the Regional Trial Court ofSantiago, Isabela, Branch 21, in Criminal Case No. 066.



Petitioner George Manantan was acquitted by the trialcourt of homicide through reckless imprudence without aruling on his civil liability. On appeal from the civil aspectof the judgment in Criminal Case No. 066, the appellatecourt found petitioner Manantan civilly liable and orderedhim to indemnify private respondents Marcelino Nicolasand Maria Nicolas P104,400.00 representing loss ofsupport, P50,000.00 as death indemnity, and moraldamages of P20,000.00 or a total of P174,400.00 for thedeath of their son, Ruben Nicolas.

The facts of this case are as follows:On June 1, 1983, the Provincial Fiscal of Isabela filed an

information charging petitioner Manantan with recklessimprudence resulting in homicide, allegedly committed asfollows:

That on or about the 25th day of September 1982, in themunicipality of Santiago, province of Isabela, Philippines, andwithin the jurisdiction of this Honorable Court, the said accused,being then the driver and person-in-charge of an automobilebearing Plate No. NGA-816, willfully and unlawfully drove andoperated the same while along the Daang Maharlika at BarangayMalvar, in said municipality, in a negligent, careless and imprudentmanner, without due regard to traffic laws, regulations andordinances and without taking the necessary precaution to preventaccident to person and damage to property, causing by suchnegligence, carelessness and imprudence said automobile drivenand operated by him to sideswipe a passenger jeep bearing plateNo. 918-7F driven by Charles Codamon, thereby causing the saidautomobile to turn down (sic) resulting to the death of RubenNicolas a passenger of said automobile.

CONTRARY TO LAW.1

On arraignment, petitioner pleaded not guilty to thecharge. Trial on the merits ensued.

_________________

1 Records, p. 1.

392






The prosecutionÊs evidence, as summarized by the trialcourt and adopted by the appellate court, showed that:

[I]n the morning of September 25, 1982, Fiscal Wilfredo Ambrocio . .. decided to catch shrimps at the irrigation canal at his farm. Heinvited the deceased who told him that they (should) borrow theFord Fiera of the accused George Manantan who is also fromCordon. The deceased went to borrow the Ford Fiera but. . . saidthat the accused also wanted to (come) along. So Fiscal Ambrocioand the deceased dropped by the accused at the ManantanTechnical School. They drank beer there before they proceeded tothe farm using the Toyota Starlet of the accused. At the farm theyconsumed one (more) case of beer. At about 12:00 oÊclock noon theywent home. Then at about 2:00 or 3:00 oÊclock that afternoon,(defense witness Miguel) Tabangin and (Ruben) Nicolas and theaccused returned to the house of Fiscal Ambrocio with a duck. Theycooked the duck and ate the same with one more case of beer. Theyate and drank until about 8:30 in the evening when the accusedinvited them to go bowling. They went to Santiago, Isabela on boardthe Toyota Starlet of the accused who drove the same. They went tothe Vicap Bowling Lanes at Mabini, Santiago, Isabela butunfortunately there was no vacant alley. While waiting for a vacantalley they drank one beer each. After waiting for about 40 minutesand still no alley became vacant the accused invited his companionsto go to the LBC Night Club. They had drinks and took some ladypartners at the LBC. After one hour, they left the LBC andproceeded to a nearby store where they ate arroz caldo . . . and thenthey decided to go home. Again the accused drove the car. MiguelTabangin sat with the accused in the front seat while the deceasedand Fiscal Ambrocio sat at the back seat with the deceasedimmediately behind the accused. The accused was driving at aspeed of about 40 kilometers per hour along the MaharlikaHighway at Malvar, Santiago, Isabela, at the middle portion of thehighway (although according to Charles Cudamon, the car wasrunning at a speed of 80 to 90 kilometers per hours on [thel wronglane of the highway because the car was overtaking a tricycle) whenthey met a passenger jeepney with bright lights on. The accusedimmediately tried to swerve the car to the right and move his bodyaway from the steering wheel but he was not able to avoid theoncoming vehicle and the two vehicles collided with each other at



the center of the road.x x xAs a result of the collision the car turned turtle twice and landed

on its top at the side of the highway immediately at the approach ofthe street going to the Flores Clinic while the jeep swerved acrossthe road so that one half front portion landed on the lane of the carwhile the back

393

VOL. 350, JANUARY 29, 2001 393


half portion was at its right lane five meters away from the point ofimpact as shown by a sketch (Exhibit „A‰) prepared by Cudamonthe following morning at the Police Headquarters at the instance ofhis lawyer. Fiscal Ambrocio lost consciousness. When he regainedconsciousness he was still inside the car (lying) on his belly with thedeceased on top of him. Ambrocio pushed (away) the deceased andthen he was pulled out of the car by Tabangin. Afterwards, thedeceased who was still unconscious was pulled out from the car.Both Fiscal Ambrocio and the deceased were brought to the FloresClinic. The deceased died that night (Exhibit „B‰) while Ambrociosuffered only minor injuries to his head and legs.

2

The defense version as to the events prior to the incidentwas essentially the same as that of the prosecution, exceptthat defense witness Miguel Tabangin declared thatManantan did not drink beer that night. As to the accident,the defense claimed that:

. . . The accused was driving slowly at the right lane [at] about 20inches from the center of the road at about 30 kilometers per hourat the National Highway at Malvar, Santiago, Isabela, whensuddenly a passenger jeepney with bright lights which was comingfrom the opposite direction and running very fast suddenlyswerve(d) to the carÊs lane and bumped the car which turned turtletwice and rested on its top at the right edge of the road while thejeep stopped across the center of the road as shown by a picturetaken after the incident (Exhibit „1‰) and a sketch (Exhibit „3‰)drawn by the accused during his rebuttal testimony. The car was hiton the driverÊs side. As a result of the collision, the accused and




Miguel Tabangin and Fiscal Ambrocio were injured while RubenNicolas died at the Flores Clinic where they were all brought fortreatment.

3

In its decision dated June 30, 1988, promulgated on August4, 1988, the trial court decided Criminal Case No. 066 inpetitionerÊs favor, thus:

WHEREFORE, in the light of the foregoing considerations, theCourt finds the accused NOT GUILTY of the crime charged andhereby acquits him.

SO ORDERED.4

__________________

2 CA Rollo, pp. 53-55.3 Id. at 56-57.4 Records, p. 429.

394



On August 8, 1988, private respondents filed their notice ofappeal on the civil aspect of the trial courtÊs judgment. Intheir appeal, docketed as CA-G.R. CV No. 19240, theNicolas spouses prayed that the decision appealed from bemodified and that appellee be ordered to pay indemnityand damages.

On January 31, 1992, the appellate court decided CA-G.R. CV No. 19240 in favor of the Nicolas spouses, thus:

WHEREFORE, the decision appealed from is MODIFIED in thatdefendant-appellee is hereby held civilly liable for his negligent andreckless act of driving his car which was the proximate cause of thevehicular accident, and sentenced to indemnify plaintiffs-appellantsin the amount of P174,400.00 for the death of Ruben Nicolas.

SO ORDERED.5

In finding petitioner civilly liable, the court a quo notedthat at the time the accident occurred, Manantan was in astate of intoxication, due to his having consumed „all in all,






a total of at least twelve (12) bottles of beer. . . between 9a.m. and 11 p.m.‰

6 It found that petitionerÊs act of driving

while intoxicated was a clear violation of Section 53 of theLand Transportation and Traffic Code (R.A. No. 4136)

7 and

pursuant to Article 2185 of the Civil Code,8 a statutory

presumption of negligence existed. It held that petitionerÊsact of violating the Traffic Code is negligence in itself„because the mishap, which occurred, was the preciseinjury sought to be prevented by the regulation.‰

9

Petitioner moved for reconsideration, but the appellatecourt in its resolution of August 24, 1992 denied themotion.

___________________

5 CA Rollo, p. 60.6 Id. at 57.7 SEC. 53. Driving while under the influence of liquor or narcotic drug.

·No person shall drive a motor vehicle while under the influence of

liquor or narcotic drug.8 CIVIL CODE, ART. 2185. Unless there is proof to the contrary, it is

presumed that a person driving a motor vehicle has been negligent if at

the time of the mishap, he was violating any traffic regulation.9 Supra note 6, at 58.

395

VOL. 350, JANUARY 29, 2001 395


Hence, the present case. Petitioner, in his memorandum,submits the following issues for our consideration:

FIRST·THE DECISION OF THE TRIAL COURT ACQUITTINGTHE PETITIONER OF THE CRIME OF RECKLESSIMPRUDENCE RESULTING TO HOMICIDE FORECLOSED ANYFURTHER INQUIRY ON THE ACCUSEDÊS (PETITIONERÊS)NEGLIGENCE OR RECKLESS IMPRUDENCE BECAUSE BYTHEN HE WILL BE PLACED IN „DOUBLE JEOPARDY‰ ANDTHEREFORE THE COURT OF APPEALS ERRED IN PASSINGUPON THE SAME ISSUE AGAIN.

SECOND·THE COURT OF APPEALS DID NOT HAVE







(1)

(2)

(3)

JURISDICTION TO AWARD DAMAGES AND INDEMNITY TOTHE PRIVATE RESPONDENTS CONSIDERING THAT THENON-DECLARATION OF ANY INDEMNITY OR AWARD OFDAMAGES BY THE REGIONAL TRIAL COURT OF ISABELA,BRANCH XXI, WAS ITSELF CONSISTENT WITH THEPETITIONERÊS ACQUITTAL FOR THE REASON THAT THECIVIL ACTION WAS IMPLIEDLY INSTITUTED WITH THECRIMINAL ACTION AND THERE WAS NO EXPRESS WAIVEROF THE CIVIL ACTION OR RESERVATION TO INSTITUTE ITSEPARATELY BY THE PRIVATE RESPONDENTS IN THE TRIALCOURT.

THIRD·THE COURT OF APPEALS DID NOT HAVEJURISDICTION TO TAKE COGNIZANCE OF THE CASE CA-G.R.CV No. 19240 ENTITLED: SPOUSES MARCELINO NICOLASAND MARIA NICOLAS v. GEORGE MANANTAN, AND RENDERTHE DECISION SOUGHT TO BE REVIEWED WHEN THE SAMEWAS PROSECUTED BY THE PRIVATE RESPONDENTS INTHEIR PERSONAL CAPACITIES AND THE FILING FEES NOTHAVING BEEN PAID, THUS VIOLATING THE MANCHESTERDOCTRINE.

In brief, the issues for our resolution are:

Did the acquittal of petitioner foreclose any furtherinquiry by the Court of Appeals as to his negligenceor reckless imprudence?

Bid the court a qua err in finding that petitionerÊsacquittal did not extinguish his civil liability?

Did the appellate court commit a reversible error infailing to apply the Manchester doctrine to CA-G.R.CV No. 19240?

396



On the first issue, petitioner opines that the Court ofAppeals should not have disturbed the findings of the trialcourt on the lack of negligence or reckless imprudenceunder the guise of determining his civil liability. He argues



that the trial courtÊs finding that he was neither imprudentnor negligent was the basis for his acquittal, and notreasonable doubt. He submits that in finding him liable forindemnity and damages, the appellate court not onlyplaced his acquittal in suspicion, but also put him in„double jeopardy.‰

Private respondents contend that while the trial courtfound that petitionerÊs guilt had not been proven beyondreasonable doubt, it did not state in clear and unequivocalterms that petitioner was not recklessly imprudent ornegligent. Hence, impliedly the trial court acquitted him onreasonable doubt. Since civil liability is not extinguished incriminal cases, if the acquittal is based on reasonabledoubt, the Court of Appeals had to review the findings ofthe trial court to determine if there was a basis forawarding indemnity and damages.

Preliminarily, petitionerÊs claim that the decision of theappellate court awarding indemnity placed him in doublejeopardy is misplaced. The constitution provides that „noperson shall be twice put in jeopardy for the same offense.If an act is punished by a law and an ordinance, convictionor acquittal under either shall constitute a bar to anotherprosecution for the same act.‰

10 When a person is charged

with an offense and the case is terminated either byacquittal or conviction or in any other manner without theconsent of the accused, the latter cannot again be chargedwith the same or identical offense.

11 This is double jeopardy.

For double jeopardy to exist, the following elements mustbe established: (a) a first jeopardy must have attachedprior to the second; (2) the first jeopardy must haveterminated; and (3) the second jeopardy must be for thesame offense as the first.

12 In the instant case, petitioner

had once been placed in jeopardy by the filing of CriminalCase No. 066 and the jeopardy was terminated by hisdischarge. The judgment of

__________________

10 CONST., Art. III, Sec. 21.11 Melo v. People, 85 Phil. 766, 768 (1950).12 People v. Bocar, 138 SCRA 166, 171 (1985).

397






VOL. 350, JANUARY 29, 2001 397


acquittal became immediately final. Note, however, thatwhat was elevated to the Court of Appeals by privaterespondents was the civil aspect of Criminal Case No. 066.Petitioner was not charged anew in CA-G.R. CV No. 19240with a second criminal offense identical to the first offense.The records clearly show that no second criminal offensewas being imputed to petitioner on appeal. In modifyingthe lower courtÊs judgment, the appellate court did notmodify the judgment of acquittal. Nor did it order the filingof a second criminal case against petitioner for the sameoffense. Obviously, therefore, there was no second jeopardyto speak of. PetitionerÊs claim of having been placed indouble jeopardy is incorrect.

Our law recognizes two kinds of acquittal, with differenteffects on the civil liability of the accused. First is anacquittal on the ground that the accused is not the authorof the act or omission complained of. This instance closesthe door to civil liability, for a person who has been found tobe not the perpetrator of any act or omission cannot andcan never be held liable for such act or omission.

13 There

being no delict, civil liability ex delicto is out of thequestion, and the civil action, if any, which may beinstituted must be based on grounds other than the delictcomplained of. This is the situation contemplated in Rule111 of the Rules of Court.

14 The second instance is an

acquittal based on reasonable doubt on the guilt of theaccused. In this case, even if the guilt of the accused hasnot been satisfactorily established, he is not exempt fromcivil

____________________

13 Almeida, et al v. Abaroa, 8 Phil. 178, 181 (1907).; See also Almeida

Chantangco and Lete v. Abaroa, 40 Phil. 1056 (1910), 218 US 476, 54 L.

Ed. 1116 (1910); Wise & Co. v. Larion, 45 Phil. 314 (1923); Francisco v.

Onrubia, 46 Phil. 327 (1924). Article 29 of the Civil Code serves only to

limit and qualify the application of the Almeida doctrine.14 RULES OF COURT, Rule 111, Sec. 2. Institution of separate civil

action.·





x x x

(b) Extinction of the penal action does not carry with it extinction of the civil,

unless the extinction proceeds from a declaration in a final judgment that the

fact from which the civil might arise did not exist, (stress supplied)

398


Manahtan vs. Court of Appeals

liability which may be proved by preponderance of evidenceonly.

15 This is the situation contemplated in Article 29 of

the Civil Code,16

where the civil action for damages is „forthe same act or omission.‰ Although the two actions havedifferent purposes, the matters discussed in the civil caseare similar to those discussed in the criminal case.However, the judgment in the criminal proceeding cannotbe read in evidence in the civil action to establish any factthere determined, even though both actions involve thesame act or omission.

17 The reason for this rule is that the

parties are not the same and secondarily, different rules ofevidence are applicable. Hence, notwithstanding hereinpetitionerÊs acquittal, the Court of Appeals in determiningwhether Article 29 applied, was not precluded from lookinginto the question of petitionerÊs negligence or recklessimprudence.

On the second issue, petitioner insists that he wasacquitted on a finding that he was neither criminallynegligent nor recklessly imprudent. Inasmuch as his civilliability is predicated on the criminal offense, he arguesthat when the latter is not proved, civil liability cannot bedemanded. He concludes that his acquittal bars any civilaction.

Private respondents counter that a closer look at thetrial courtÊs judgment shows that the judgment of acquittaldid not clearly and categorically declare the non-existenceof petitionerÊs negligence or imprudence. Hence, they arguethat his acquittal must be deemed

_________________

15 Manahan, Jr. v. Court of Appeals, 255 SCRA 202, 214 (1996), citing






Padilla v. Court of Appeals, 129 SCRA 558 (1984).16 CIVIL CODE, Art. 29. When the accused in a criminal prosecution is

acquitted on the ground that his guilt has not been proved beyond

reasonable doubt, a civil action for damages for the same act or omission

may be instituted (stress supplied). Such action requires only a

preponderance of evidence. Upon motion of the defendant, the court may

require the plaintiff to file a bond to answer for damages in case the

complaint should be found to be malicious.

If in a criminal case, the judgment of acquittal is based upon

reasonable doubt, the court shall so declare. In the absence of any

declaration to that effect, it may be inferred from the text of the decision

whether or not the acquittal is due to that ground.17 Almeida Chantangco and Lete v. Abaroa, supra note 13, at 1061.

399

VOL. 350, JANUARY 29, 2001 399


based on reasonable doubt, allowing Article 29 of the CivilCode to come into play.

Our scrutiny of the lower courtÊs decision in CriminalCase No. 066 supports the conclusion of the appellate courtthat the acquittal was based on reasonable doubt; hence,petitionerÊs civil liability was not extinguished by hisdischarge. We note the trial courtÊs declaration that did notdiscount the possibility that „the accused was reallynegligent.‰ However, it found that „a hypothesisinconsistent with the negligence of the accused presenteditself before the Court‰ and since said „hypothesis isconsistent with the record . . . the CourtÊs mind cannot reston a verdict of conviction.‰

18 The foregoing clearly shows

that petitionerÊs acquittal was predicated on the conclusionthat his guilt had not been established with moralcertainty. Stated differently, it is an acquittal based onreasonable doubt and a suit to enforce civil liability for thesame act or omission lies.

On the third issue, petitioner argues that the Court ofAppeals erred in awarding damages and indemnity, sinceprivate respondents did not pay the corresponding filingfees for their claims for damages when the civil case wasimpliedly instituted with the criminal action. Petitioner




submits that the non-payment of filing fees on the amountof the claim for damages violated the doctrine inManchester Development Corporation v. Court of Appeals,149 SCRA 562 (1987) and Supreme Court Circular No. 7dated March 24, 1988.

19 He avers that since Manchester

held that „The Court acquires jurisdiction over any caseonly upon payment of the prescribed docket fees,‰ theappellate court was without jurisdiction to hear and tryCA-G.R. CV No. 19240, much less award indemnity anddamages.

__________________

18 Supra note 4.19 The subject of which reads: ALL COMPLAINTS MUST SPECIFY

THE AMOUNT OF DAMAGES SOUGHT NOT ONLY IN THE BODY OF

THE PLEADINGS, BUT ALSO IN THE PRAYER IN ORDER TO BE

ACCEPTED AND ADMITTED FOR FILING. THE AMOUNT OF

DAMAGES SO SPECIFIED IN THE COMPLAINT SHALL BE THE

BASIS FOR ASSESSING THE AMOUNT OF THE FILING FEES.

400



Private respondents argue that the Manchester doctrine isinapplicable to the instant case. They ask us to note thatthe criminal case, with which the civil case was impliedlyinstituted, was filed on July 1, 1983, while the Manchesterrequirements as to docket and filing fees took effect onlywith the promulgation of Supreme Court Circular No. 7 onMarch 24, 1988. Moreover, the information filed by theProvincial Prosecutor of Isabela did not allege the amountof indemnity to be paid. Since it was not then customarilyor legally required that the civil damages sought be statedin the information, the trial court had no basis in assessingthe filing fees and demanding payment thereof. Moreover,assuming that the Manchester ruling is appliedretroactively, under the Rules of Court, the filing fees forthe damages awarded are a first lien on the judgment.Hence, there is no violation of the Manchester doctrine to




speak of.At the time of the filing of the information in 1983, the

implied institution of civil actions with criminal actionswas governed by Rule 111, Section 1 of the 1964 Rules ofCourt.

20 As correctly pointed out by private respondents,

under said rule, it was not required that the damagessought by the offended party be stated in the complaint orinformation. With the adoption of the 1985 Rules ofCriminal Procedure, and the amendment of Rule 111,Section 1 of the 1985 Rules of Criminal Procedure by aresolution of this Court dated July 7, 1988, it is nowrequired that:

When the offended party seeks to enforce civil liability against theaccused by way of moral, nominal, temperate or exemplarydamages, the filing fees for such civil action as provided in theseRules shall constitute a first lien on the judgment except in anaward for actual damages.

In cases wherein the amount of damages, other than actual, isalleged in the complaint or information, the corresponding filingfees shall be paid by the offended party upon the filing thereof incourt for trial.

___________________

20 Sec. 1. Institution of criminal and civil actions.·When a criminal

action is instituted, the civil action for recovery of civil liability arising

from the offense charged is impliedly instituted with the criminal action,

unless that offended party expressly waives the civil action or reserves

his right to institute it separately.

401

VOL. 350, JANUARY 29, 2001 401


The foregoing were the applicable provisions of the Rules ofCriminal Procedure at the time private respondentsappealed the civil aspect of Criminal Case No. 066 to thecourt a quo in 1989. Being in the nature of a curativestatute, the amendment applies retroactively and affectspending actions as in this case.




Thus, where the civil action is impliedly institutedtogether with the criminal action, the actual damagesclaimed by the offended parties, as in this case, are notincluded in the computation of the filing fees. Filing feesare to be paid only if other items of damages such as moral,nominal, temperate, or exemplary damages are alleged inthe complaint or information, or if they are not so alleged,shall constitute a first lien on the judgment.

21 Recall that

the information in Criminal Case No. 066 contained nospecific allegations of damages. Considering that the Rulesof Criminal Procedure effectively guarantee that the filingfees for the award of damages are a first lien on thejudgment, the effect of the enforcement of said lien mustretroact to the institution of the criminal action. The filingfees are deemed paid from the filing of the criminalcomplaint or information. We therefore find no basis forpetitionerÊs allegations that the filing fees were not paid orimproperly paid and that the appellate court acquired nojurisdiction.

WHEREFORE, the instant petition is DISMISSED forlack of merit. The assailed decision of the Court of Appealsin CA-G.R. CV No. 19240 promulgated on January 31,1992, as well as its resolution dated August 24, 1992,denying herein petitionerÊs motion for reconsideration, areAFFIRMED. Costs against petitioner.

SO ORDERED.

Bellosillo (Chairman), Mendoza, Buena and DeLeon, Jr., JJ., concur.

Petition dismissed.

Notes.·Conviction for the crime of illegal recruitmentunder the Labor Code does not preclude punishment underother statutes if some other crimes or felonies arecommitted in the process·a

____________________

21 People v. Escano, Jr., 193 SCRA 662, 665 (1991).

402





People vs. Bagcal

person convicted for illegal recruitment may also beconvicted for the crime for estafa. (People vs. Sanchez, 291SCRA 333 [1998])

Conviction for illegal recruitment under the Labor Codedoes not bar the punishment of the offender for estafa.(People vs. Saley, 291 SCRA 715 [1998])

Even if several cases arose out of the same scheme, ifthe fraudulent acts charged were committed againstdifferent persons, they do not constitute the same offense.(People vs. Balasa, 295 SCRA 49 [1998])

··o0o··



Page 1 of 30http://www.central.com.ph/sfsreader/session/0000014fd18babdcb30d0cc5000a0094004f00ee/p/AJQ191/?username=Guest

VOL. 475, NOVEMBER 15, 2005 97

Sanchez vs. Far East Bank and Trust Company

G.R. No. 155309. November 15, 2005.*

JOSEPHINE M. SANCHEZ, petitioner, vs. FAR EASTBANK AND TRUST COMPANY,

1 respondent.

Criminal Procedure; Appeals; One who desires a review of acriminal case must appeal within fifteen days from the date thedecision or judgment was announced in open court in the presence ofthe accused, or was promulgated in the manner set forth in Section 6of Rule 116 (now Section 6 of Rule 120) of the Rules of Court.·Theperiod available to the accused for filing an appeal is fifteen (15)days from the promulgation of the judgment or from notice of thefinal order appealed from. As early as Landicho v. Tan, the Courthas held that one who desires a review of a criminal case mustappeal within fifteen days from the date the decision or judgmentwas announced in open court in the presence of the accused, or waspromulgated in the manner set forth in Section 6 of Rule 116 (nowSection 6 of Rule 120) of the Rules of Court. This ruling wasreiterated in People v. Tamani, in which the Court has furtherclarified that the word promulgation in the old provision should beconstrued as referring to „judgment;‰ and notice, to „order.‰

Same; Same; Parties; Civil Liability; The appeal periodaccorded to the accused should also be available to the offendedparty who seeks redress of the civil aspect of a decision.·The aboveruling, however, is relevant and applicable to the accused whoappeals. In the present case, we are confronted with the Motionfiled by the private offended party for reconsideration of the civilaspect of the

_______________

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* THIRD DIVISION.

1 The Petition named the Court of Appeals as a respondent. The Court

deleted it from the title, pursuant to Section 4 of Rule 45 of the Rules of Court

governing petitions for review.

98



RTC judgment. It should also be noted that she was not required tobe present during the promulgation of the judgment. In a long lineof cases as far back as People v. Ursua, this Court has ruled that theappeal period accorded to the accused should also be available tothe offended party who seeks redress of the civil aspect of adecision. Similarly, courts may apply this ruling to the filing of amotion for reconsideration of a judgment. For them to do so will beconsistent with this CourtÊs policy of giving lower tribunals a chanceto rectify their possible errors and thereby promote the speedy andjust disposition of controversies.

Same; Same; Same; Same; The rules governing the period ofappeal in a purely civil action should be the same as those coveringthe civil aspects of criminal judgments.·The relevant question is,when should the period for the filing of a motion by a privateoffended party begin? In Neplum v. Orbeso, this Court explainedthat the period begins to toll upon service of the notice of judgmentupon the offended party. Thus: „Indeed, the rules governing theperiod of appeal in a purely civil action should be the same as thosecovering the civil aspects of criminal judgments. If these rules arenot completely identical, the former may be suppletory to the latter.x x x. Being akin to a civil action, the present appeal may be guidedby the Rules on Civil Procedure.‰

Judgments; Criminal Liability; Civil Liability; Every personcriminally liable for a felony is also civilly liable, except in instanceswhen no actual damage results from an offense; Extinction of penalliability does not always carry with it the extinction of the civil.·Article 100 of the RPC states that every person criminally liable



for a felony is also civilly liable. This rule holds true, except ininstances when no actual damage results from an offense, such asespionage, violation of neutrality, flight to an enemy country, andcrime against popular representation. Clearly, the extinction of thepenal liability does not always carry with it the extinction of thecivil.According to Article 29 of the Civil Code, if the acquittal ismade on the ground that the guilt has not been proved beyondreasonable doubt, the accused may be held civilly liable for damagesarising from the same act or omission constituting the offense. As inany ordinary civil case, the liability may be established by a merepreponderance of evidence.

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VOL. 475, NOVEMBER 15, 2005 99


Same; Same; Same; Acquittals; Our law recognizes two kinds ofacquittal, with different effects on civil liability of the accused·firstis an acquittal on the ground that the accused was not the author ofthe act or omission complained of, and, the second instance is anacquittal based on reasonable doubt on the guilt of the accused.·The consequences of an acquittal on the civil liability of theaccused are discussed by the Court in Manantan v. CA in this wise:„Our law recognizes two kinds of acquittal, with different effects onthe civil liability of the accused. First is an acquittal on the groundthat the accused is not the author of the act or omission complainedof. This instance closes the door to civil liability, for a person whohas been found to be not the perpetrator of any act or omissioncannot and can never be held liable for such act or omission. Therebeing no delict, civil liability ex delicto is out of the question, andthe civil action, if any, which may be instituted must be based ongrounds other than the delict complained of. This is the situationcontemplated in Rule 111 of the Rules of Court. The second instanceis an acquittal based on reasonable doubt on the guilt of theaccused. In this case, even if the guilt of the accused has not beensatisfactorily established, he is not exempt from civil liability whichmay be proved by preponderance of evidence only. This is thesituation contemplated in Article 29 of the Civil Code, where thecivil action for damages is Âfor the same act or omission.Ê x x x.‰



Same; Same; Same; Same; A finding in a final judgment thatthe fact from which civil liability may arise does not exist carrieswith it the extinction of the liability.·The trial court emphaticallyconcluded that petitioner „was not the author of the fraudsallegedly perfpetrated [sic],‰ if any. The Court of Appeals concurredin that conclusion when it categorically held thus: „We rule out theissue of forgery as this was not satisfactorily proved x x x.‰ UnderSection 2(b) of Rule 111 of the Revised Rules of Court, a finding in afinal judgment that the fact from which civil liability may arise doesnot exist carries with it the extinction of the liability.


The facts are stated in the opinion of the Court. De Castro and Cagampang Law Offices for petitioner.

100



Benedicto, Verzosa, Gealogo & Burkley for respondentFEBTC.

PANGANIBAN, J.:

At bottom, the resolution of this case hinges on thecredibility of the witnesses and their testimonies. Since thefactual findings of the lower courts are disparate, thisCourt painstakingly reviewed the records. It found nosufficient reason to disbelieve the well-explained findingsand equally logical conclusions of the trial court. Theevidence proffered by respondent even corroboratedrelevant portions of those of petitioner. Thus, the evidencesupported the ruling of the trial court that the acquittal ofpetitioner was based on its reasonable finding that she hadnot committed the crime imputed to her. Consequently, sheincurred no civil liability for the alleged offense.

The Case



Before us is a Petition for Review2 under Rule 45 of the

Rules of Court, seeking to reverse the July 31, 2001Decision

3 and the August 30, 2002 Resolution

4 of the Court

of Appeals (CA) in CA-G.R. CV No. 53715. The challengedDecision disposed as follows:

„WHEREFORE, the assailed order is REVERSED and SET ASIDE.[Petitioner] JOSEPHINE SANCHEZ is hereby ordered to pay[Respondent] Far East Bank and Trust Company, the amount ofOne Million One Hundred Eighty Seven Thousand Five HundredThirty Pesos and Eighty Six Centavos (P1,187,530.86) as actualdamages. This is without prejudice to [petitioner]Ês recourse of reim-

_______________

2 Rollo, pp. 7-20.

3 Id., pp. 22-47. Special Eleventh Division. Penned by Justice Ruben T.

Reyes (Division chair) and concurred in by Justices Mercedes Gozo-Dadole and

Juan Q. Enriquez, Jr. (members).

4 Id., p. 54.

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VOL. 475, NOVEMBER 15, 2005 101


bursement from the other persons who participated in thetransactions.‰

5

The assailed Resolution denied reconsideration.

The Facts

The antecedents of the case are related by the CA asfollows:

„It is undisputed that Kai J. Chin was the director andrepresentative of Chemical Bank. Its subsidiary, the ChemicalInternational Finance Limited (CIFL), was an investor in[Respondent] Far East Bank and Trust [C]ompany (FEBTC), x x x.In representing the interest of CIFL in FEBTC, Chin was made adirector and sr. vice president of FEBTC. [Petitioner] Josephine







Sanchez was, in turn, assigned as secretary of Chin. CIFL alsomaintained a checking account (CA# 0009-04212-1) in FEBTCÊsinvestment arm, the Far East Bank Investment, Inc. (FEBII). Chinwas one of the authorized signatories in the said current and moneymarket accounts.

„According to [respondent], [petitioner] made unauthorizedwithdrawals from the account of CIFL in FEBTC through the use offorged or falsified applications for cashierÊs checks which weredeposited to her personal accounts. Once credited to her account,she withdrew the amounts and misappropriated, misapplied andconverted them to her personal benefit and advantage, to thedamage of FEBTC.

„[Petitioner supposedly] employed three modes in the saidfraudulent transactions, namely:

„In the First Mode, [petitioner] caused the issuance of a cashierÊscheck payable to ÂbearerÊ with number 461390, dated September 29,1992, in the sum of P250,040.86. This is the subject of Crim. CaseNo. 93-126175. She presented a forged letter of confirmationbearing the forged signature of Chin addressed to Beatriz Bagsit,Cash Department Head of FEBTC. This check was paid pursuant tothe said confirmation. [Petitioner] immediately deposited this checkto her FEBTC Savings Account No. 0101-39109-9 and on September30, 1992, she withdrew P200,040.86.

_______________

5 CA Decision, pp. 26-27; Rollo, pp. 46-47.

102



„Under the Second Mode, [petitioner] filed applications forms topurchase cashierÊs checks payable to her, [with] Chin as thesupposed purchaser. Said applications were accompanied by aforged memorandum of Chin confirming [petitioner] as the payee-beneficiary. After the approval by Bagsit of the applications andmemoranda, checks were issued, as follows:

Check No. Date Amount Exhibit

461739 10/22/92 P489,450.00 ÂFÊ



461963 04/11/92 160,550.00 ÂGÊ

464801 05/24/93 180,090.00 ÂHÊ

465405 06/30/93 107,400.00 ÂIÊ

„In compliance with bank procedures [petitioner] signs thechecks twice, one as an endorsement and two as proof of receipt ofthe proceeds which she then deposited to her FEBTC account.

„The Third Mode, was frequently used which involved checkspayable to Chin.

„[Petitioner] was designated as ChinÊs representative to purchasecashierÊs checks using applications which bore forged signatures ofChin as a purchaser and the payee.

„After Bagsit has approved the application and has checked theauthenticity of ChinÊs signatures, a cashierÊs check is issued. Then[petitioner] claimed the check, left then came back soon to encash it.The check when presented for encashment already had twosignatures of Chin on its dorsal side, both signatures being forged.The first forged signature represents ChinÊs endorsement of thecheck as payee and the second, ChinÊs purported receipt of thecheckÊs proceeds. The teller pays the value of the check only ifinitialed by Bagsit.

„In this mode, 16 checks were issued, to wit:

Check No. Date Amount Exhibit

461417 10/13/92 P100,000.00 ÂKÊ

461488 10/20/92 150,000.00 ÂLÊ

462197 11/17/92 50,000.00 ÂMÊ

461318 11/26/92 190,000.00 ÂNÊ

462420 12/09/92 200,400.00 ÂOÊ

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462482 12/12/92 220,000.00 ÂPÊ

462717 01/04/93 210,000.00 ÂQÊ

462946 01/18/93 200,000.00 ÂRÊ

463241 02/01/93 180,000.00 ÂSÊ

463606 02/26/93 180,000.00 ÂTÊ



463776 03/08/93 200,000.00 ÂUÊ

463850 03/19/93 200,000.00 ÂVÊ

464108 04/01/93 150,000.00 ÂWÊ

464329 04/20/93 100,000.00 ÂXÊ

464432 04/27/93 150,000.00 ÂYÊ

464620 05/13/93 150,000.00 ÂZÊ

„[Petitioner allegedly] confessed to Chin that she tampered withthe CIFL account. Chin referred the matter to the FEBTCÊs auditdivision for further investigation. All the cashierÊs checks, funded byan unauthorized debit against the CIFL account, as well as thecorresponding applications for their issuance were examined at thePhilippine National Police Crime Laboratory. All of ChinÊssignatures borne on all the checks and applications were found tohave been good forgeries. With the damage done, FEBTC had toreimburse the CIFL account and ultimately suffered the totalmisappropriated amount of P3,787,530.86.‰

6

The main defense of petitioner consisted of a denial of theforgeries. She asserted that she had deposited the checks toher account, under the authority and instructions of KaiChin. Afterwards, petitioner withdrew the amounts andgave them to him.

7

Kai Chin denied that he had given that authority to her,and insisted that she had signed the subject documents.However, he did not rebut her testimony that she hadturned over the proceeds of the checks to him.

_______________

6 Id., pp. 3-8 & 24-29. Citations omitted.7 RTC Decision penned by Judge David G. Nitafan, p. 16; Rollo, p. 112.

104



Ruling of the Trial Court





The Regional Trial Court (RTC) did not find Kai Chin to bea credible witness. According to the RTC, FEBTCÊs recordsshowed that, contrary to his testimony, he had expresslyauthorized petitioner to transact matters concerningChemical BankÊs account.

8

The trial judge doubted the integrity of the findings andthe report of the PNP handwriting expert. He noted thenon-use during the handwriting analysis of Kai ChinÊscontemporaneous signatures. Besides, the examination wasinitiated unilaterally by FEBTC officials, who hadsubmitted sample signatures of their own choice.

9

The RTC added that the allegedly fraudulenttransactions had occurred from September 1992 to June1993, with the use of documents bearing the signatures ofother officials and employees of respondent. In other words,all the questioned transactions had been approved andallowed by the bank officials concerned, despite apparentprocedural infirmities.

10 Yet, only petitioner was indicted.

Thus, the RTC disposed as follows:

„FOR ALL THE FOREGOING CONSIDERATIONS, the Court findsand so holds that the prosecution failed to prove the culpability ofthe accused in any of these cases with moral certainty, andconsequently acquits her from all the charges, with costs de oficio.Her bail bonds are released and the hold departure order as well asthe order of attachment are lifted.‰

11

Subsequently, respondent filed a Motion forReconsideration of the civil aspect of the RTC Decision. Inan Order

12 dated March 20, 1996, the trial court denied

reconsideration.

_______________

8 Id., pp. 19-22 & 115-118.9 Id., pp. 23-25, 28-29 & 119-121, 124-125.10 Id., pp. 28, 31 & 124, 127.11 RTC Decision, p. 32; Rollo, p. 128.12 Rollo, pp. 69-75.

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VOL. 475, NOVEMBER 15, 2005 105









Quoting portions of its Decision, the RTC said in its Orderthat the acquittal of the accused „was not exactly on theground of Âreasonable doubt,Ê but that she was not theauthor of the frauds allegedly perfpetrated (sic).‰ Thus, itheld that „no civil liability against her may properly bemade.‰

Ruling of the Court of Appeals

Granting respondentÊs appeal, the appellate court ruledthat the trial courtÊs judgment of acquittal did not precluderecovery of civil indemnity based on a quasi delict.

13 The CA

held that the outcome of the criminal case, whetherconviction or acquittal, was inconsequential in adjudgingcivil liability arising from the same act that could also beconsidered a quasi delict. Moreover, FEBTC did not have toreserve its right to file a separate civil action for damages,because the law had already made that reservation onrespondentÊs behalf.

14

The CA further held that, contrary to the trial courtÊsclarifications in its March 20, 1996 Order, petitioner hadbeen acquitted merely on reasonable doubt arising frominsufficiency of evidence to establish her identity asperpetrator of the crime. Her acquittal was not due to thenonexistence of the crime for which civil liability couldarise.

15 Although it agreed with the RTC that forgery had

not been satisfactorily proven by FEBTC, the CAnonetheless found petitioner liable for her failure to turnover to respondent the proceeds of the checks. The failuresupposedly constituted an actionable fraud.

16

Thus, the appellate court ordered petitioner to payrespondent P1,187,530.86 as actual damages, representingthe value of the checks that had been paid in her name andto her account.

17

_______________

13 CA Decision, pp. 15-16; Rollo, pp. 35-36.14 Id., pp. 16-17 & 36-37.15 Id., pp. 18 & 38.








„(1)

„(2)

„(3)

„(4)

16 Id., pp. 21-22 & 41-42.17 Id., pp. 24-26 & 44-46.

106




The Issues

Petitioner raises the following issues for this CourtÊsconsideration:

Whether the judgment of conviction had alreadybecome final at the time the motion forreconsideration of the civil aspect was filed by thecomplainant-appellant?

Whether an appeal on the civil aspect may be madefrom a decision in a criminal case acquitting theaccused for being not the author of the crime?

Whether a separate civil action is necessary to beinstituted after the accused is acquitted in acriminal case based on reasonable doubt?

Whether the civil aspect of the criminal offenseswhere the accused was acquitted may be pursuedby a party other than the offended parties?Otherwise stated, whether the civil liability may bepursued by a party which is not a real party ininterest after the acquittal of the accused of theoffenses charged?‰

19

The CourtÊs Ruling

The Petition is meritorious.

First Issue: Timeliness of the





Motion for Reconsideration

Because the RTC Decision had been promulgated onDecember 15, 1995, and respondentÊs Motion forReconsideration

_______________

18 This case was deemed submitted for decision on November 11, 2004,

upon this CourtÊs receipt of respondentÊs Memorandum, signed by Atty.

Justino M. Marquez III. PetitionerÊs Memorandum, signed by Atty.

Arturo M. de Castro, was received by this Court on April 10, 2003.19 PetitionerÊs Memorandum, p. 5; Rollo, p. 91.

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was filed two months after, on February 14, 1996,petitioner instantly concludes that the Motion was filed outof time.

Respondent, however, contends that the time for filingthe Motion should be counted from February 1, 1996·when it received the trial courtÊs Decision·not from thedate of notice to the public prosecutor.

20 To determine the

period for filing from the latter date would undermine thedual aspects of a criminal litigation, in which the right ofthe offended party to appeal the civil aspect is independentof the decision of the accused on whether or not to appealthe case.

21

We uphold respondent on this issue. Section 6 of Rule122 of the Rules of Court states as follows:

„SEC. 6. When appeal to be taken.·An appeal must be taken withinfifteen (15) days from promulgation of the judgment or from noticeof the final order appealed from. This period for perfecting anappeal shall be suspended from the time a motion for new trial orreconsideration is filed until notice of the order overruling themotion has been served upon the accused or his counsel at whichtime the balance of the period begins to run.‰

22

Clearly, the period available to the accused for filing an






appeal is fifteen (15) days from the promulgation of thejudgment or from notice of the final order appealed from.As early as Landicho v. Tan,

23 the Court has held that one

who desires a review of a criminal case must appeal withinfifteen days from the date the decision or judgment wasannounced in open court in the presence of the accused, orwas promulgated in the manner set forth in Section 6 ofRule 116 (now Section

_______________

20 RespondentÊs Memorandum, pp. 12-13; Rollo, pp. 162-163.21 Id., pp. 12-13 & 162-163.22 The provision, while not identical, is similar to §6 of Rule 122 of the

1985 Rules. The only difference is that the present provision makes clear

that promulgation refers to „judgment‰; and notice, to „final order

appealed from.‰ Neplum, Inc. v. Orbeso, 384 SCRA 466, 479, July 11,

2002.23 87 Phil. 601, 605, November 16, 1950.

108



624

of Rule 120) of the Rules of Court. This ruling wasreiterated in People v. Tamani,

25 in which the Court has

further clarified that the word promulgation in the oldprovision should be construed as referring to „judgment;‰and notice, to „order.‰

26

The above ruling, however, is relevant and applicable tothe accused who appeals. In the present case, we areconfronted with the Motion filed by the private offendedparty for reconsideration of the civil aspect of the RTCjudgment. It should also be noted that she was not requiredto be present during the promulgation of the judgment.

_______________

24 „SEC. 6. Promulgation of judgment.·The judgment is promulgated

by reading the same in the presence of the accused and any judge of the

court in which it was rendered. However, if the conviction is for a light







offense, the judgment may be pronounced in the presence of his counsel

or representative. When the judge is absent or outside of the province or

city, the judgment may be promulgated by the clerk of court.

„If the accused is confined or detained in another province or city, the

judgment may be promulgated by the executive judge of the Regional

Trial Court having jurisdiction over the place of confinement or detention

upon request of the court that rendered the judgment. The court

promulgating the judgment shall have authority to accept the notice of

appeal and to approve the bail bond pending appeal.

„The proper clerk of court shall give notice to the accused personally or

through his bondsman or warden and counsel, requiring him to be

present at the promulgation of the decision. In case the accused fails to

appear thereat the promulgation shall consist in the recording of the

judgment in the criminal docket and a copy thereof shall be served upon

the accused or counsel. If the judgment is for conviction, and the

accusedÊs failure to appear was without justifiable cause, the court shall

further order the arrest of the accused, who may appeal within fifteen

(15) days from notice of the decision to him or his counsel.‰25 55 SCRA 153, January 21, 1974.26 Id., p. 157, per Aquino, J.

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VOL. 475, NOVEMBER 15, 2005 109


In a long line of cases27

as far back as People v. Ursua,28

thisCourt has ruled that the appeal period accorded to theaccused should also be available to the offended party whoseeks redress of the civil aspect of a decision. Similarly,courts may apply this ruling to the filing of a motion forreconsideration of a judgment. For them to do so will beconsistent with this CourtÊs policy of giving lower tribunalsa chance to rectify their possible errors

29 and thereby

promote the speedy and just disposition of controversies.The relevant question is, when should the period for the

filing of a motion by a private offended party begin? InNeplum v. Orbeso,

30 this Court explained that the period

begins to toll upon service of the notice of judgment uponthe offended party. Thus:

„Indeed, the rules governing the period of appeal in a purely civil







action should be the same as those covering the civil aspects ofcriminal judgments. If these rules are not completely identical, theformer may be suppletory to the latter. x x x. Being akin to a civilaction, the present appeal may be guided by the Rules on CivilProcedure.‰

31

In the case before us, respondent undisputedly claims thatpetitioner received notice of the RTC Decision only onFebruary 1, 1996. Records show that FEBTC filed itsMotion for

_______________

27 People v. Rodriquez, 97 Phil. 349, July 29, 1955; People v. Coloma,

105 Phil. 1287, April 29, 1959; Torrijos v. Court of Appeals, 67 SCRA 395,

October 24, 1975; Heirs of Tito Rillorta v. Firme, 157 SCRA 518, January

29, 1988.28 60 Phil. 252, August 1, 1934.29 Lopez Dela Rosa Development Corporation v. Court of Appeals, G.R.

No. 148470, April 29, 2005, 457 SCRA 614; Madrigal Transport, Inc. v.

Lapanday Holdings Corp., 436 SCRA 123, August 11, 2004.30 Supra, p. 480.31 Id., p. 481, per Panganiban, J.

110



Reconsideration on February 14, 1996. The Motion wasthus filed within the reglementary period.

Second, Third and Fourth Issues: Civil Liability in Case of Acquittal

Being interrelated, the second, third and fourth issues willbe discussed together.

Petitioner contends that her acquittal was not basedmerely on reasonable doubt, but on the determination thatshe was not the author of the imputed felonies. Shereiterates the trial courtÊs ruling in its March 20, 1996Order that she could not be held civilly liable, because she




was not responsible for the crimes charged.Arguing on the assumption that she was acquitted on

the basis of reasonable doubt, petitioner explains that theappellate court was nevertheless precluded from takingcognizance of the civil aspect of the case, as a separate civilaction should have been filed after the judgment ofacquittal. She contends that Article 29 of the Civil Code,which mandates the courts to make a finding on the civilliability in case of an acquittal based on reasonable ground,applies only to situations when a crime has been committedbut the accused is exempt from criminal liability under theinstances enumerated in Article 12 of the Revised PenalCode (RPC).

32

Petitioner finally argues that the real party-in-interestis not respondent, but Chemical Bank and/or Kai Chin, theowners of the accounts from which the withdrawals weremade.

33

Respondent, on the other hand, asserts that the offendedparty may appeal the civil aspect of the criminalproceeding despite the judgment of acquittal.

34

_______________

32 PetitionerÊs Memorandum, p. 7; Rollo, p. 93.33 Id., pp. 9 & 95.34 Id., pp. 13-14 & 163-164.

111

VOL. 475, NOVEMBER 15, 2005 111


Civil Action Deemed Instituted in the Criminal Proceeding

Article 100 of the RPC states that every person criminallyliable for a felony is also civilly liable. This rule holds true,except in instances when no actual damage results from anoffense, such as espionage, violation of neutrality, flight toan enemy country, and crime against popularrepresentation.

35

Clearly, the extinction of the penal liability does not







always carry with it the extinction of the civil.36

Accordingto Article 29 of the Civil Code, if the acquittal is made onthe ground that the guilt has not been proved beyondreasonable doubt, the accused may be held civilly liable fordamages arising from the same act or omission constitutingthe offense. As in any ordinary civil case, the liability maybe established by a mere preponderance of evidence.

Section 1 of Rule 111 of the 1985 Rules of Court, theprevailing law during the trial of this case below,

37 provided

the

_______________

35 Regalado, Florenz D., Criminal Law Conspectus (1st ed., 2000), p.

258 (citing People v. Orais, 65 Phil. 744, June 30, 1938.)36 §2(b) of Rule 111 of the Rules of Court; People v. Velez, 77 Phil. 1026,

February 25, 1947. See Sapiera v. Court of Appeals, 373 Phil. 148; 314

SCRA 370, September 14, 1999; Sesbreño v. Court of Appeals, 330 Phil.

909; 262 SCRA 345, September 23, 1996.37 The Rules on Criminal Procedure were amended in 2000. With

respect to the changes in Section 1, the Court explained in Philippine

Rabbit Line, Inc. v. People (427 SCRA 456, April 14, 2004, per

Panganiban, J.) thus:

„Section 1 of Rule 111 of the current Rules of Criminal Procedure provides:

ÂWhen a criminal action is instituted, the civil action for the recovery of civil liability arising

from the offense charged shall be deemed instituted with the criminal action unless the

offended party waives the civil action, reserves the right to institute it separately or institutes

the civil action prior to the criminal action.Ê

x x x x x x x x x

112



consequences of acts that produced both civil and criminalliabilities, as follows:

„SECTION 1. Institution of criminal and civil actions.·(a) When acriminal action is instituted, the civil action for the recovery of civilliability arising from the offense charged shall be deemed





„1.

„2.

„3.

_______________

„Only the civil liability of the accused arising from the crime charged is deemed impliedly instituted in a

criminal action, that is, unless the offended party waives the civil action, reserves the right to institute it

separately, or institutes it prior to the criminal action. Hence, the subsidiary civil liability of the employer

under Article 103 of the Revised Penal Code may be enforced by execution on the basis of the judgment of

conviction meted out to the employee.

„It is clear that the 2000 Rules deleted the requirement of reserving independent civil actions and

allowed these to proceed separately from criminal actions. Thus, the civil actions referred to in Articles

32, 33, 34 and 2176 of the Civil Code shall remain Âseparate, distinct and independentÊ of any criminal

prosecution based on the same act. Here are some direct consequences of such revision and omission:

The right to bring the foregoing actions based on the Civil Code need not be reserved in the

criminal prosecution, since they are not deemed included therein.

The institution or the waiver of the right to file a separate civil action arising from the crime

charged does not extinguish the right to bring such action.

The only limitation is that the offended party cannot recover more than once for the same act or

omission.

„What is deemed instituted in every criminal prosecution is the civil liability arising from the

crime or delict per se (civil liability ex delicto), but not those liabilities arising from quasi-

delicts, contracts or quasi-contracts. In fact, even if a civil action is filed separately, the ex

delicto civil liability in the criminal prosecution remains, and the offended party may·subject

to the control of the prosecutor·still intervene in the criminal action, in order to protect the

remaining civil interest therein.‰

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VOL. 475, NOVEMBER 15, 2005 113


instituted with the criminal action unless the offended party waivesthe civil action, reserves the right to institute it separately orinstitutes the civil action prior to the criminal action.

„Such civil action includes recovery of indemnity under theRevised Penal Code, and damages under Articles 32, 33, 34 and2176 of the Civil Code of the Philippines arising from the same actor omission of the accused.

x x x x x x x x x.‰

Clearly, under the foregoing 1985 rule, an action for therecovery of civil liability arising from an offense charged isnecessarily included in the criminal proceedings, unless (1)



there is an express waiver of the civil action, or (2) there isa reservation to institute a separate one, or (3) the civilaction was filed prior to the criminal complaint.

For this purpose, the offended parties are allowed tointervene in the criminal proceedings, but solely to enforcetheir right to claim indemnification for damages arisingfrom the criminal act.

38 In Roa v. De la Cruz,

39 in which the

offended party failed to submit evidence of damages despitehaving participated in the criminal proceedings, we had theoccasion to rule in this wise:

„x x x. For such failure, she has only herself or her counsel to blame.Of course, she could have still filed a motion for reconsideration oran appeal to rectify the error. But this she failed to do, thusallowing the decision to become final and executory. Under theprinciple of res judicata, that judgment is conclusive as to futureproceedings at law not only as to every matter which was offeredand received to sustain the claim or demand, but as to any otheradmissible matter that could have been offered for that purpose.‰

_______________

38 Roa v. De la Cruz, 107 Phil. 8, February 13, 1960. Citations omitted.39 Supra, p. 13, per Gutierrez David, J. (citing Miranda v. Tiangco, 96

Phil. 526; 51 Off. Gaz., [3] 1366; NAMARCO v. Judge Macadaeg, 98 Phil.

185; 52 Off. Gaz. 182.)

114



In the present case, the original action involved aprosecution for estafa or swindling through falsification ofcommercial documents, an offense defined under the RPC.Records do not show·and respondent does not claim·thepresence of any of the three instances precluding theautomatic institution of the civil action together with thecriminal complaint. Ineluctably, respondentÊs right todamages, if any, was deemed prosecuted in the criminalproceeding. Thus, a separate civil action may no longer beinstituted.





Appeal of the Civil Aspect of the Decision Acquitting the Accused

The consequences of an acquittal on the civil liability of theaccused are discussed by the Court in Manantan v. CA

40 in

this wise:

„Our law recognizes two kinds of acquittal, with different effects onthe civil liability of the accused. First is an acquittal on the groundthat the accused is not the author of the act or omission complainedof. This instance closes the door to civil liability, for a person whohas been found to be not the perpetrator of any act or omissioncannot and can never be held liable for such act or omission. Therebeing no delict, civil liability ex delicto is out of the question, andthe civil action, if any, which may be instituted must be based ongrounds other than the delict complained of. This is the situationcontemplated in Rule 111 of the Rules of Court. The second instanceis an acquittal based on reasonable doubt on the guilt of theaccused. In this case, even if the guilt of the accused has not beensatisfactorily established, he is not exempt from civil liability whichmay be proved by preponderance of evidence only. This is thesituation contemplated in Article 29 of the Civil Code, where thecivil action for damages is Âfor the same act or omission.Ê x x x.‰

In Salazar v. People,41

the Court further expounded thus:

_______________

40 350 SCRA 387, January 29, 2001, per Quisumbing, J.41 411 SCRA 598, 606, September 23, 2003, per Callejo Sr., J.

115

VOL. 475, NOVEMBER 15, 2005 115


„The acquittal of the accused does not prevent a judgment againsthim on the civil aspect of the case where (a) the acquittal is basedon reasonable doubt as only preponderance of evidence is required;(b) where the court declared that the liability of the accused is onlycivil; (c) where the civil liability of the accused does not arise fromor is not based upon the crime of which the accused was acquitted.Moreover, the civil action based on the delict is extinguished if there





is a finding in the final judgment in the criminal action that the actor omission from which the civil liability may arise did not exist orwhere the accused did not commit the acts or omission imputed tohim.

„If the accused is acquitted on reasonable doubt but the courtrenders judgment on the civil aspect of the criminal case, theprosecution cannot appeal from the judgment of acquittal as itwould place the accused in double jeopardy. However, the aggrievedparty, the offended party or the accused or both may appeal fromthe judgment on the civil aspect of the case within the periodtherefor.‰

Based on the foregoing jurisprudence, it is settled that theprivate offended party may appeal the civil aspect of thejudgment despite the acquittal of the accused. But thisrecourse may prosper only if the nature of the trial courtÊsjudgment falls under any of the three categories stated inSalazar.

Acquittal of Petitioner Due to the Noncommission of the Imputed Acts

A close scrutiny of the RTC Decision and Order leads us tothe conclusion that petitioner did not commit the crimeimputed to her. Hence, her acquittal likewise extinguishedthe action for her civil liability.

In support of this conclusion, we initially quote at lengththese findings of the trial court:

„Re: Crim. Cases No. 93-126175.·This case involves the bearercheck for the amount of P250,040.86[.] This is the earliestquestionable transaction allegedly committed by the accused as ithappened on 29 September 1992. According to FEBTC records, thiswas the

116



initial transaction concerning the Chemical account wherein acashierÊs check payable to Chemical (CIF) was used by the accusedto purchase another cashierÊs check payable to ÂbearerÊ which was



later deposited to the account of accused. During the investigationby the bankÊs Investigation Committee, Mrs. Bagsit averred thatshe confirmed the transaction with Kai Chin and which was lateron supported by an authorization letter from Kai Chin. (p. 11, Exh.„1‰).

„There is no dispute that the check was deposited to the personalaccount of the accused (Exhs. „C,‰ „C-1‰ and „D‰) and part of theamount thereof was subsequently withdrawn by her (Exh. „E‰), butaccused asserted that the deposit of said check to her account andthe subsequent withdrawal of its amount were upon the authorityand instructions of Kai Chin, and that the withdrawn amount wasactually given by her to Kai Chin.

„Although Kai Chin denied having signed the confirmationmemorandum (Exh. „B‰), there is absolutely no evidence on recordthat the money was never turned over to Kai Chin. Kai Chin did nottestify, on direct evidence or on rebuttal, concerning this aspect ofthe case. x x x.

„Re: Crim. Cases Nos. 93-126172, 93-126178, 93-126189 and 93-126190.·These four cases involve the CashierÊs Checks applied forand made payable to the accused (Exhs. „G-1,‰ „F-2,‰ „H-2‰ and „I-2‰). Exhs. „G-1‰ and „F-2‰ were encashed by the accused becausethey bear at their back two signatures of hers, and according to thewitnesses for the prosecution the first of such signatures constitutesthe indorsement while the second signifies receipt of the proceeds ofthe payment thereof. On the other hand, Exhs. „H-2‰ and „I-2‰ weredeposited by her in her personal account. According to the accusedthe drawing of the checks in her name and their encashments anddeposit to her account were upon the authority and instructions ofKai Chin, and that the values thereof were all turned over to KaiChin.

x x x x x x x x x„Re: Crim. Case No. 93-126171.·This case involves a CashierÊs

Check applied for and made payable to Kai Chin, signed twice atthe back but accused nonetheless signed for the receipt of thepayment thereof. x x x While Kai Chin denied on direct evidencethat he signed the application for the purchase of this check andalso the back of the check itself, there is also no showing that thevalue thereof did not reach him. Accused asserted that this checkwas

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VOL. 475, NOVEMBER 15, 2005 117


applied for and encashed upon the authority and instruction of KaiChin, and that the value thereof was turned over to the latter.

x x x x x x x x x„Re: the rest of the other criminal cases.·The remaining fifteen

other cases involve checks applied for and drawn in the name of KaiChin and twice signed at the back. As intimated earlier, the firstsignature at the back of the check constitutes the indorsementthereof while the second signifies receipt of the payment of thevalue.

„The only intervention of the accused concerning these checks, asappearing in the documentary exhibits, was her being named as therepresentative of the purchaser and she must have picked up thechecks for and in behalf of the purchaser. (See Exhs. „P,‰ „N,‰ „O,‰„K,‰ „L,‰ „S,‰ „T,‰ „M,‰ „U,‰ „V,‰ „W,‰ „X,‰ „Y‰ and „Z‰). There is noindication, at least from the documents of the prosecution, thataccused had a hand in the encashments of the checks, otherwise,she should have been made to sign, as what was done in the case ofthe check marked as Exh. „Q-1.‰

42

As can be clearly gleaned from the above, petitionerconsistently claimed that she had acted merely upon theinstructions and authority of her superior, Kai Chin. Whileadmitting that she had deposited the proceeds of some ofthe checks to her personal account, she firmly insisted thatshe subsequently withdrew the cash proceeds and turnedthem over to him. She denied·and the records do not show·that she had ever appropriated those moneys for herpersonal gain.

On the other hand, as the trial judge clearly noted, KaiChin did not even bother to rebut the statement of petitionerthat she had turned over the proceeds of the checks to him.

43

All he asserted was that he had neither signed theapplications for the purchase of the checks nor endorsedthose checks. His credibility was assessed by the judgethus:

_______________

42 RTC Decision, pp. 15-19; Rollo, pp. 111-115. Italics in the original.





Â1)

Â2)

43 Id., pp. 27 & 297.

118



„Credibility of Kai Chin.·It must be noticed that, with theexception of the ÂbearerÊ check involved in Crim. Case No. 93-126175, the value of the CashierÊs Checks involve[d] were debitedfrom the Chemical account. Kai Chin is undisputably one of theauthorized signatories to the Chemical account, and under ordinarycourse of things, he must be the payee and/or beneficiary of thechecks.

„Initially, Kai Chin sweepingly testified as follows:

ÂQ: In her capacity as your secretary, when she was your secretarydid Josephine Sanchez have anything to do with the ChemicalInternational Finance account?

ÂA: No, sir. (tsn, p. 9, 8 Nov 1994)Ê

„The records of the bank and FEBII, however, show otherwise.Thus, as early as April, 1992, Kai Chin had already authorized theaccused to transact matters concerning the Chemical account,through a memorandum he sent to Mrs. Beatriz Bagsit and one Ms.Enriquez, reading as follows:

ÂThis is to request for the following:

Ms. Enriquez to partially terminate the amount of P250,000.00

from the CIFÊs placement (P3M) and credit the same to SA#0101-

58459-8 maintained at Intramuros Branch.

Ms. Bagsit to debit SA#0101-58459-8 for P290,000.00 and entrust

the same to my Secretary, Ms. Jo Sanchez for proper disposition.

ÂIn view of my home leave/business trip scheduled on April 29-June 8,

1992, the above requests will be confirmed by Ms. Sanchez upon my

instructions before the end of May, 1992. (Memo [dated] 28 April 1992,

attached as Annex „B‰ to Exh. „2‰.)Ê

„Kai Chin never denied his signature on this document, either ondirect evidence or on rebuttal (as he was not presented as a rebuttalwitness).‰

44




The authority conferred by Kai Chin upon petitioner wasalso borne out by the reports of the FEBTC Investigating

_______________

44 Id., pp. 19-20 & 115-116.

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VOL. 475, NOVEMBER 15, 2005 119


Committee, pertinent parts of which were quoted in theRTC Decision as follows:

„4. Initial interview with the officers of FEBII disclosed thefollowing:

Â4.1 In January, 1992, Mr. Kai Chin personally went to the office of MS.

URSULA A. ALANO, Vice President of FEBII and allegedly informed the

latter that he will directly manage the CIF [also referred to as CIFL or

Chemical] account. Mr. Chin informed MS ALANO that instructions

concerning the account will either originate from his or his representative,

MS. J. M. SANCHEZ;

ÂBased on Mr. ChinÊs instructions,

placements/preterminations/payments of the account were transacted by

Mr. Chin himself or his authorized representative, J. SANCHEZ. (p. 9,

Exh. 1, underscoring supplied; see also p. 11 of the same exhibit.)Ê

„These facts were recited in the Memorandum of Ms. U.A. Ulano,attached as Annex ÂBÊ to Exh. „1,‰ which reads as follows:

ÂFacts: Due to the transfer of Mr. Kai Chin to FEBTC Head Office in

Intramuros last January 1992, he personally went to see me in my office

to inform me that he was directly managing the CIF account. He also

informed me that instructions concerning the account will either originate

from him or his authorized representative, Ms. J. M. Sanchez.

ÂBased on the given instructions of Mr. Kai Chin,

placements/preterminations/payments of the account were transacted by

Mr. Kai Chin himself or his authorized representative, Ms. J. M. Sanchez.

[Italics by the RTC.]Ê ‰45

The above evidence led the trial court to conclude that „Kai




Chin, definitely, was less candid to the [c]ourt when hetestified‰

46 that petitioner had nothing to do with the CIFL

account.

_______________

45 Id., pp. 21-22 & 117-118.46 Id., pp. 22 & 118.

120



As regards petitionerÊs testimony, the trial judge observedthat she had firmly and straightforwardly echoed thematerial allegations in her Counter-Affidavit; and that,furthermore, her testimony had been „corroborated by thePeopleÊs exhibits themselves.‰

47 Indeed, her claim that she

had prior authorization from Kai Chin to undertake thequestioned transactions was supported by no less than theprosecution evidence.

Thus, the trial court emphatically concluded thatpetitioner „was not the author of the frauds allegedlyperfpetrated [sic],‰

48 if any. The Court of Appeals concurred

in that conclusion when it categorically held thus: „We ruleout the issue of forgery as this was not satisfactorily provedx x x.‰

49

Under Section 2(b) of Rule 111 of the Revised Rules ofCourt, a finding in a final judgment that the fact fromwhich civil liability may arise does not exist carries with itthe extinction of the liability. Thus, the critical issue in thepresent appeal is this: was the civil liability of petitionerduly established by the evidence?

Answering in the affirmative, the CA explained that asingle act or omission may produce two forms of civilliability: one is for ex delicto or that which arises from acrime under our penal statutes; and the other is for a quasidelict or culpa extra-contractual. In the present case, civilliability ex delicto was foreclosed by the acquittal.Nonetheless, „[a]lthough the act from which the civilliability might arise did not exist due to [petitionerÊs]







acquittal, [respondentÊs] cause of action makes out a case ofquasi delict.‰

50

Contrary to the trial court, the CA disbelievedpetitionerÊs assertions that she had turned over theproceeds of the checks to Kai Chin. Granting that she wasauthorized to encash the

_______________

47 Id., pp. 27 & 123.48 RTC Order, p. 4; Rollo, p. 72.49 Assailed Decision, p. 21; Rollo, p. 41.50 Id., pp. 16 & 36.

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VOL. 475, NOVEMBER 15, 2005 121


checks, she supposedly had no like authority to deposit theproceeds to her personal bank account. The appellate courtconcluded that, in breach of Article 33

51 of the Civil Code,

„she abused the confidence reposed in her by [respondent]in the performance of her duty.‰

52 Thus, the CA ordered her

to pay respondent the amount of P1,187,530.86 as actualdamages, representing the total value of five checks paid inher name and to her account.

53

In view of the conflicting findings of the lower courts asregards the credibility of the witnesses, we invoke the time-honored rule that „the assessment of the credibility ofwitnesses and their testimonies is a matter bestundertaken by the trial court because of its uniqueopportunity to observe the witnesses firsthand and notetheir demeanor, conduct and attitude under grillingexamination. These are the most significant factors inevaluating the sincerity of witnesses and in unearthing thetruth, especially in the face of conflicting testimonies.Through its observations during the entire proceedings, thetrial court can be expected to determine, with reasonablediscretion, whose testimony to accept and which witness todisbelieve.‰

54

Barring arbitrariness and oversight of facts that might








affect the result of the case otherwise, the RTCÊsassessment of the witnesses and their testimonies in thiscase binds even

_______________

51 „ART. 33. In cases of defamation, fraud, and physical injuries, a civil

action for damages, entirely separate and distinct from the criminal

action, may be brought by the injured party. Such civil action shall

proceed independently of the criminal prosecution, and shall require only

a preponderance of evidence.‰52 Id., pp. 23 & 43.53 Assailed Decision, p. 21; Rollo, p. 44.54 People v. Ombrog, 268 SCRA 93, 100-101, February 12, 1997, per

Panganiban, J.; Bugatti v. Court of Appeals, 343 SCRA 335, October 17,

2000; Lorenzana v. People, 353 SCRA 396, March 1, 2001.

122



this Court.55

In any event, we scoured the records and,unlike the CA, we found no sufficient reason to reject thetrial courtÊs assessment. There was no arbitrariness oroversight of any fact or circumstance of weight andinfluence to justify a different conclusion.

Moreover, the CA based its imposition of civil liabilityupon petitioner on her supposed abuse of her employerÊsconfidence. Granting for the sake of argument that sheindeed forged the checks and misappropriated the proceedsto her personal benefit, it must be recalled that it was KaiChinÊs signatures that she purportedly forged; and CIFLÊsaccount that she, in effect, misappropriated. Be itremembered that respondentÊs own documentary evidenceunequivocally concurred in the assertion of petitioner thatKai Chin had given her express authority to transactCIFLÊs account on his behalf. Consequently, it was his, notrespondentÊs, confidence that she had exploited. In otherwords, the factual premises of the CA did not support itsconclusion.

In sum, we hold that petitionerÊs acquittal was based on




the fact that she had not committed the offense imputed toher. Consequently, she cannot be held civilly liable. Inconcluding that she, as well as her testimony, was credible,the trial court cannot be faulted with arbitrariness ornegligence. Tellingly, her testimony that she turned overthe proceeds of the subject checks to Kai Chin standsunrebutted.

WHEREFORE, the Petition is hereby GRANTED, andthe assailed CA Decision and Resolution SET ASIDE. TheDecember 15, 1995 Decision and the March 20, 1996 Orderof the Regional Trial Court of Manila, Branch 52, arehereby REINSTATED. No pronouncement as to costs.

SO ORDERED.

Corona, Carpio-Morales and Garcia, JJ., concur.

_______________

55 People v. Corea, 269 SCRA 76, 86, March 3, 1997; People v.

Basquez, 366 SCRA 154, September 27, 2001.

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VOL. 475, NOVEMBER 15, 2005 123

Becton Dickinson Phils., Inc. vs. National Labor RelationsCommission

Sandoval-Gutierrez, J., On Official Leave.

Petition granted, assailed decision and resolution setaside. That of the Regional Trial Court reinstated.

Notes.·It is reasonable to assume that the offendedparty in the commission of a crime, public or private, is theparty to whom the offender is civilly liable, in light ofArticle 100 of the RPC, which expressly provides that„[e]very person criminally liable for a felony is also civillyliable.‰ (Garcia vs. Court of Appeals, 266 SCRA 678 [1997])

An accused acquitted of estafa may nevertheless be heldcivilly liable where the facts established by the evidence sowarrant·she may be adjudged liable for the unpaid valueof the checks signed by her in favor of the complainant.



(Sapiera vs. Court of Appeals, 314 SCRA 370 [1999])An accused acquitted of a criminal charge may

nevertheless be held civilly liable in the same case wherethe facts established by the evidence so warrant. (Pachecovs. Court of Appeals, 319 SCRA 595 [1999])

··o0o··



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Manliclic vs. Calaunan

G.R. No. 150157. January 25, 2007.*

MAURICIO MANLICLIC and PHILIPPINE RABBIT BUSLINES, INC., petitioners, vs. MODESTO CALAUNAN,respondent.

Evidence; Witnesses; Hearsay Evidence; Testimony at FormerProceeding; Requisites.·For Section 47, Rule 130 to apply, thefollowing requisites must be satisfied: (a) the witness is dead orunable to testify; (b) his testimony or deposition was given in aformer case or proceeding, judicial or administrative, between thesame parties or those representing the same interests; (c) theformer case involved the same subject as that in the present case,although on different causes of action; (d) the issue testified to bythe witness in the former trial is the same issue involved in thepresent case; and (e) the ad-

_______________

* THIRD DIVISION.

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VOL. 512, JANUARY 25, 2007 643


verse party had an opportunity to cross-examine the witness in theformer case.

http://www.central.com.ph/sfsreader/session/0000014fd18de2e0d2939a8a000a0094004f00ee/p/AKQ275/?username=Guest#p512scra8960642001



Same; Failure to except to the evidence because it does notconform to the statute is a waiver of the provisions of the law;Hearsay evidence alone may be insufficient to establish a fact in asuit but, when no objection is made thereto, it is, like any otherevidence, to be considered and given the importance it deserves.·Itis elementary that an objection shall be made at the time when analleged inadmissible document is offered in evidence; otherwise, theobjection shall be treated as waived, since the right to object ismerely a privilege which the party may waive. Thus, a failure toexcept to the evidence because it does not conform to the statute is awaiver of the provisions of the law. Even assuming ex gratiaargumenti that these documents are inadmissible for being hearsay,but on account of failure to object thereto, the same may beadmitted and considered as sufficient to prove the facts thereinasserted. Hearsay evidence alone may be insufficient to establish afact in a suit but, when no objection is made thereto, it is, like anyother evidence, to be considered and given the importance itdeserves.

Same; Though Section 47 of Rule 130 speaks only of testimonyand deposition, it does not mean that documents from a former caseor proceeding cannot be admitted·documents which are part of thetestimonies of witnesses that have been admitted may also beadmitted.·Petitioners contend that the documents in the criminalcase should not have been admitted in the instant civil case becauseSection 47 of Rule 130 refers only to „testimony or deposition.‰ Wefind such contention to be untenable. Though said section speaksonly of testimony and deposition, it does not mean that documentsfrom a former case or proceeding cannot be admitted. Saiddocuments can be admitted they being part of the testimonies ofwitnesses that have been admitted. Accordingly, they shall be giventhe same weight as that to which the testimony may be entitled.

Quasi-Delicts; Extinction of Civil Liability; The extinction ofcivil liability referred to Section 2(b) of Rule 111, refers exclusively tocivil liability founded on Article 100 of the Revised Penal Code,whereas the civil liability for the same act considered as aquasidelict only and not as a crime is not extinguished even by adeclaration in the criminal case that the criminal act charged hasnot happened or has not been committed by the accused.·From theforegoing



644



declaration of the Court of Appeals, it appears that petitionerManliclic was acquitted not on reasonable doubt, but on the groundthat he is not the author of the act complained of which is based onSection 2(b) of Rule 111 of the Rules of Criminal Procedure whichreads: (b) Extinction of the penal action does not carry with itextinction of the civil, unless the extinction proceeds from adeclaration in a final judgment that the fact from which the civilmight arise did not exist. In spite of said ruling, petitioner Manlicliccan still be held liable for the mishap. The afore-quoted sectionapplies only to a civil action arising from crime or ex delicto and notto a civil action arising from quasi-delict or culpa aquiliana. Theextinction of civil liability referred to in Par. (e) of Section 3, Rule111 [now Section 2 (b) of Rule 111], refers exclusively to civilliability founded on Article 100 of the Revised Penal Code, whereasthe civil liability for the same act considered as a quasi-delict onlyand not as a crime is not extinguished even by a declaration in thecriminal case that the criminal act charged has not happened or hasnot been committed by the accused.

Same; Same; Same; A quasi-delict or culpa aquiliana is aseparate legal institution under the Civil Code with a substantivityall its own, and individuality that is entirely apart and independentfrom a delict or crime·a distinction exists between the civil liabilityarising from a crime and the responsibility for quasi-delicts or culpaextracontractual; It is now settled that acquittal of the accused, evenif based on a finding that he is not guilty, does not carry with it theextinction of the civil liability based on quasi-delict.·A quasi-delictor culpa aquiliana is a separate legal institution under the CivilCode with a substantivity all its own, and individuality that isentirely apart and independent from a delict or crime·a distinctionexists between the civil liability arising from a crime and theresponsibility for quasi-delicts or culpa extra-contractual. The samenegligence causing damages may produce civil liability arising froma crime under the Penal Code, or create an action for quasi-delicts



or culpa extra-contractual under the Civil Code. It is now settledthat acquittal of the accused, even if based on a finding that he isnot guilty, does not carry with it the extinction of the civil liabilitybased on quasi delict. In other words, if an accused is acquittedbased on reasonable doubt on his guilt, his civil liability arisingfrom the crime may be proved by preponderance of evidence only.However, if an accused is acquitted on the basis that he was not theauthor of the act or omission complained of (or that there isdeclaration in a

645

VOL. 512, JANUARY 25, 2007 645


final judgment that the fact from which the civil might arise did notexist), said acquittal closes the door to civil liability based on thecrime or ex delicto. In this second instance, there being no crime ordelict to speak of, civil liability based thereon or ex delicto is notpossible. In this case, a civil action, if any, may be instituted ongrounds other than the delict complained of.

Pleadings and Practice; As a general rule, questions of fact maynot be raised in a petition for review; Exceptions.·As a general rule,questions of fact may not be raised in a petition for review. Thefactual findings of the trial court, especially when affirmed by theappellate court, are binding and conclusive on the Supreme Court.Not being a trier of facts, this Court will not allow a review thereofunless: (1) the conclusion is a finding grounded entirely onspeculation, surmise and conjecture; (2) the inference made ismanifestly mistaken; (3) there is grave abuse of discretion; (4) thejudgment is based on a misapprehension of facts; (5) the findings offact are conflicting; (6) the Court of Appeals went beyond the issuesof the case and its findings are contrary to the admissions of bothappellant and appellees; (7) the findings of fact of the Court ofAppeals are contrary to those of the trial court; (8) said findings offact are conclusions without citation of specific evidence on whichthey are based; (9) the facts set forth in the petition as well as in thepetitionerÊs main and reply briefs are not disputed by therespondents; and (10) the findings of fact of the Court of Appeals



are premised on the supposed absence of evidence and contradictedby the evidence on record.

Quasi-Delicts; Employer-Employee Relationship; VicariousLiability; Under Article 2180 of the New Civil Code, when an injuryis caused by the negligence of the employee, there instantly arises apresumption of law that there was negligence on the part of themaster or employer either in the selection of the servant or employee,or in the supervision over him after selection or both.·Having ruledthat it was petitioner ManliclicÊs negligence that caused the smashup, there arises the juris tantum presumption that the employer isnegligent, rebuttable only by proof of observance of the diligence ofa good father of a family. Under Article 2180 of the New Civil Code,when an injury is caused by the negligence of the employee, thereinstantly arises a presumption of law that there was negligence onthe part of the master or employer either in the selection of theservant or employee, or in supervision over him after selection or

646



both. The liability of the employer under Article 2180 is direct andimmediate; it is not conditioned upon prior recourse against thenegligent employee and a prior showing of the insolvency of suchemployee. Therefore, it is incumbent upon the private respondentsto prove that they exercised the diligence of a good father of afamily in the selection and supervision of their employee.

Same; Same; Same; In the selection of prospective employees,employers are required to examine them as to their qualifications,experience and service records, and in the supervision of employees,the employer must formulate standard operating procedures,monitor their implementation and impose disciplinary measures forthe breach thereof.·In the case at bar, petitioner PRBLI maintainsthat it had shown that it exercised the required diligence in theselection and supervision of its employees, particularly petitionerManliclic. In the matter of selection, it showed the screeningprocess that petitioner Manliclic underwent before he became a



regular driver. As to the exercise of due diligence in the supervisionof its employees, it argues that presence of ready investigators(Ganiban and Cabading) is sufficient proof that it exercised therequired due diligence in the supervision of its employees. In theselection of prospective employees, employers are required toexamine them as to their qualifications, experience and servicerecords. In the supervision of employees, the employer mustformulate standard operating procedures, monitor theirimplementation and impose disciplinary measures for the breachthereof. To fend off vicarious liability, employers must submitconcrete proof, including documentary evidence, that they compliedwith everything that was incumbent on them.

Same; Same; Same; The presence of investigators after theaccident is not enough supervision by a public transportationcompany·regular supervision of employees, that is, prior to anyaccident should be shown and established.·The presence of readyinvestigators after the occurrence of the accident is not enough toexempt petitioner PRBLI from liability arising from the negligenceof petitioner Manliclic. Same does not comply with the guidelinesset forth in the cases above-mentioned. The presence of theinvestigators after the accident is not enough supervision. Regularsupervision of employees, that is, prior to any accident, should havebeen shown and established. This, petitioner failed to do. The lackof supervision can further be seen by the fact that there is only oneset of manual containing the rules and regulations for all thedrivers of PRBLI. How then

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VOL. 512, JANUARY 25, 2007 647


can all the drivers of petitioner PRBLI know and be continuallyinformed of the rules and regulations when only one manual isbeing lent to all the drivers.

PETITION for review on certiorari of a decision of theCourt of Appeals.

The facts are stated in the opinion of the Court.



Conrado C. Genilo, Jr. for petitioners. Cesar M. Carino for respondent.

CHICO-NAZARIO, J.:

Assailed before Us is the decision1 of the Court of Appeals

in CA-G.R. CV No. 55909 which affirmed in toto thedecision

2 of the Regional Trial Court (RTC) of Dagupan

City, Branch 42, in Civil Case No. D-10086, findingpetitioners Mauricio Manliclic and Philippine Rabbit BusLines, Inc. (PRBLI) solidarily liable to pay damages andattorneyÊs fees to respondent Modesto Calaunan.

The factual antecedents are as follows:The vehicles involved in this case are: (1) Philippine

Rabbit Bus No. 353 with plate number CVD-478, owned bypetitioner PRBLI and driven by petitioner MauricioManliclic; and (2) owner-type jeep with plate number PER-290, owned by respondent Modesto Calaunan and driven byMarcelo Mendoza.

At around 6:00 to 7:00 oÊclock in the morning of 12 July1988, respondent Calaunan, together with MarceloMendoza, was on his way to Manila from Pangasinan onboard his owner-type jeep. The Philippine Rabbit Bus waslikewise bound for Manila from Concepcion, Tarlac. Atapproximately Kilometer 40 of the North LuzonExpressway in Barangay Lalangan, Plaridel, Bulacan, thetwo vehicles collided. The front right side of the PhilippineRabbit Bus hit the rear left

_______________

1 CA Rollo, pp. 191-193.2 Records, pp. 437-456.

648



side of the jeep causing the latter to move to the shoulderon the right and then fall on a ditch with water resulting tofurther extensive damage. The bus veered to the left and





„1.

2.

3.

4.

5.

6.

stopped 7 to 8 meters from point of collision.Respondent suffered minor injuries while his driver was

unhurt. He was first brought for treatment to the ManilaCentral University Hospital in Kalookan City by OscarBuan, the conductor of the Philippine Rabbit Bus, and waslater transferred to the Veterans Memorial Medical Center.

By reason of such collision, a criminal case was filedbefore the RTC of Malolos, Bulacan, charging petitionerManliclic with Reckless Imprudence Resulting in Damageto Property with Physical Injuries, docketed as Crim. CaseNo. 684-M-89. Subsequently on 2 December 1991,respondent filed a complaint for damages againstpetitioners Manliclic and PRBLI before the RTC ofDagupan City, docketed as Civil Case No. D-10086. Thecriminal case was tried ahead of the civil case. Amongthose who testified in the criminal case were respondentCalaunan, Marcelo Mendoza and Fernando Ramos.

In the civil case (now before this Court), the partiesadmitted the following:

The parties agreed on the capacity of the parties tosue and be sued as well as the venue and theidentities of the vehicles involved;

The identity of the drivers and the fact that theyare duly licensed;

The date and place of the vehicular collision;

The extent of the injuries suffered by plaintiffModesto Calaunan and the existence of the medicalcertificate;

That both vehicles were going towards the south;the private jeep being ahead of the bus;

That the weather was fair and the road was wellpaved and straight, although there was a ditch onthe right side where the jeep fell into.‰

3

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3 Pre-Trial Order; Records, p. 143.

649




VOL. 512, JANUARY 25, 2007 649


When the civil case was heard, counsel for respondentprayed that the transcripts of stenographic notes (TSNs)

4 of

the testimonies of respondent Calaunan, Marcelo Mendozaand Fernando Ramos in the criminal case be received inevidence in the civil case in as much as these witnesses arenot available to testify in the civil case.

Francisco Tuliao testified that his brother-in-law,respondent Calaunan, left for abroad sometime inNovember, 1989 and has not returned since then. RogelioRamos took the stand and said that his brother, FernandoRamos, left for Amman, Jordan, to work. Rosalia Mendozatestified that her husband, Marcelo Mendoza, left theirresidence to look for a job. She narrated that she thoughther husband went to his hometown in Panique, Tarlac,when he did not return after one month. She went to herhusbandÊs hometown to look for him but she was informedthat he did not go there.

The trial court subpoenaed the Clerk of Court of Branch8, RTC, Malolos, Bulacan, the court where Criminal CaseNo. 684-M-89 was tried, to bring the TSNs of thetestimonies of respondent Calaunan,

5 Marcelo Mendoza

6

and Fernando Ramos7 in said case, together with other

documentary evidence marked therein. Instead of theBranch Clerk of Court, it was Enrique Santos Guevara,Court Interpreter, who appeared before the court andidentified the TSNs of the three afore-named witnesses andother pertinent documents he had brought.

8 Counsel for

respondent wanted to mark other TSNs and documentsfrom the said criminal case to be adopted in the instantcase, but since the same were not brought to the trial court,counsel for petitioners compromised that said

_______________

4 TSNs were admitted per Order dated 13 September 1994; Records, p.

341.5 Exhs. „G-3‰ to „G-10‰ (19 April 1991) and „G-11‰ to „G-36‰ (1 July

1991).6 Exh. „D-4‰ (5 February 1993).








7 Exh. „E-4.‰8 Exhs. „A‰ to „H,‰ with submarkings.

650



TSNs and documents could be offered by counsel forrespondent as rebuttal evidence.

For the defendants, petitioner Manliclic and busconductor Oscar Buan testified. The TSN

9 of the testimony

of Donato Ganiban, investigator of the PRBLI, in CriminalCase No. 684-M-89 was marked and allowed to be adoptedin the civil case on the ground that he was already dead.

Respondent further marked, among other documents, asrebuttal evidence, the TSNs

10 of the testimonies of Donato

Ganiban, Oscar Buan and petitioner Manliclic in CriminalCase No. 684-M-89.

The disagreement arises from the question: Who is to beheld liable for the collision?

Respondent insists it was petitioner Manliclic whoshould be liable while the latter is resolute in saying it wasthe former who caused the smash up.

The versions of the parties are summarized by the trialcourt as follows:

„The parties differed only on the manner the collision between thetwo (2) vehicles took place. According to the plaintiff and his driver,the jeep was cruising at the speed of 60 to 70 kilometers per hour onthe slow lane of the expressway when the Philippine Rabbit Busovertook the jeep and in the process of overtaking the jeep, thePhilippine Rabbit Bus hit the rear of the jeep on the left side. At thetime the Philippine Rabbit Bus hit the jeep, it was about toovertake the jeep. In other words, the Philippine Rabbit Bus wasstill at the back of the jeep when the jeep was hit. Fernando Ramoscorroborated the testimony of the plaintiff and Marcelo Mendoza.He said that he was on another jeep following the Philippine RabbitBus and the jeep of plaintiff when the incident took place. He said,the jeep of the plaintiff overtook them and the said jeep of theplaintiff was followed by the Philippine Rabbit Bus which wasrunning very fast. The bus also overtook the jeep in which he was





riding. After that, he heard a loud sound. He saw the jeep of theplaintiff swerved to the

_______________

9 Exh. „19‰.

10 Exhs. „M‰ to „P.‰

651

VOL. 512, JANUARY 25, 2007 651


right on a grassy portion of the road. The Philippine Rabbit Busstopped and they overtook the Philippine Rabbit Bus so that itcould not moved (sic), meaning they stopped in front of thePhilippine Rabbit Bus. He testified that the jeep of plaintiff swervedto the right because it was bumped by the Philippine Rabbit busfrom behind.

Both Mauricio Manliclic and his driver, Oscar Buan admittedthat the Philippine Rabbit Bus bumped the jeep in question.However, they explained that when the Philippine Rabbit bus wasabout to go to the left lane to overtake the jeep, the latter jeepswerved to the left because it was to overtake another jeep in frontof it. Such was their testimony before the RTC in Malolos in thecriminal case and before this Court in the instant case. [Thus,which of the two versions of the manner how the collision took placewas correct, would be determinative of who between the two driverswas negligent in the operation of their respective vehicles.]‰

11

Petitioner PRBLI maintained that it observed andexercised the diligence of a good father of a family in theselection and supervision of its employee, specificallypetitioner Manliclic.

On 22 July 1996, the trial court rendered its decision infavor of respondent Calaunan and against petitionersManliclic and PRBLI. The dispositive portion of its decisionreads:

„WHEREFORE, judgment is rendered in favor of the plaintiff andagainst the defendants ordering the said defendants to pay plaintiffjointly and solidarily the amount of P40,838.00 as actual damagesfor the towing as well as the repair and the materials used for the




repair of the jeep in question; P100,000.00 as moral damages andanother P100,000.00 as exemplary damages and P15,000.00 asattorneyÊs fees, including appearance fees of the lawyer. In addition,the defendants are also to pay costs.‰

12

Petitioners appealed the decision via Notice of Appeal tothe Court of Appeals.

13

_______________

11 Rollo, pp. 45-47.12 Records, p. 456.13 Id., at p. 459.

652



In a decision dated 28 September 2001, the Court ofAppeals, finding no reversible error in the decision of thetrial court, affirmed it in all respects.

14

Petitioners are now before us by way of petition forreview assailing the decision of the Court of Appeals. Theyassign as errors the following:

I

THE COURT OF APPEALS ERRED ON A QUESTION OF LAW INAFFIRMING THE TRIAL COURTÊS QUESTIONABLEADMISSION IN EVIDENCE OF THE TSNÊs AND OTHERDOCUMENTS PRESENTED IN THE CRIMINAL CASE.

II

THE COURT OF APPEALS ERRED ON A QUESTION OF LAWIN AFFIRMING THE TRIAL COURTÊS RELIANCE ON THEVERSION OF THE RESPONDENT ON HOW THE ACCIDENTSUPPOSEDLY OCCURRED.

III

THE COURT OF APPEALS ERRED ON A QUESTION OF LAWIN AFFIRMING THE TRIAL COURTÊS UNFAIR DISREGARD OF






HEREIN PETITIONER PRBLÊs DEFENSE OF EXERCISE OFDUE DILIGENCE IN THE SELECTION AND SUPERVISION OFITS EMPLOYEES.

IV

THE COURT OF APPEALS ERRED ON A QUESTION OF LAWIN AFFIRMING THE TRIAL COURTÊS QUESTIONABLE AWARDOF DAMAGES AND ATTORNEYÊS FEE.

With the passing away of respondent Calaunan during thependency of this appeal with this Court, we granted theMotion for the Substitution of Respondent filed by his wife,Mrs. Precila Zarate Vda. De Calaunan, and children,Virgilio Calaunan, Carmelita Honeycomb, EvelynCalaunan, Marko Calaunan and Liwayway Calaunan.

15

_______________

14 CA Rollo, p. 193.15 Rollo, pp. 59-62, 88.

653

VOL. 512, JANUARY 25, 2007 653


In their Reply to respondentÊs Comment, petitionersinformed this Court of a Decision

16 of the Court of Appeals

acquitting petitioner Manliclic of the charge17

of RecklessImprudence Resulting in Damage to Property withPhysical Injuries attaching thereto a photocopy thereof.

On the first assigned error, petitioners argue that theTSNs containing the testimonies of respondent Calaunan,

18

Marcelo Mendoza19

and Fernando Ramos20

should not beadmitted in evidence for failure of respondent to complywith the requisites of Section 47, Rule 130 of the Rules ofCourt.

For Section 47, Rule 13021

to apply, the followingrequisites must be satisfied: (a) the witness is dead orunable to testify; (b) his testimony or deposition was givenin a former case or proceeding, judicial or administrative,between the same parties or those representing the same










interests; (c) the former case involved the same subject asthat in the present case, although on different causes ofaction; (d) the issue testified to by the witness in the formertrial is the same issue involved in the present case; and (e)the adverse party had an opportunity to cross-examine thewitness in the former case.

22

Admittedly, respondent failed to show the concurrence ofall the requisites set forth by the Rules for a testimonygiven

_______________

16 CA-G.R. CR No. 19749.17 Crim. Case No. 684-M-89.18 Exhs. „G-3‰ to „G-10‰ (19 April 1991) and „G-11‰ to „G-36‰ (1 July

1991).19 Exh. „D-4‰ (5 February 1993).20 Exh. „E-4.‰21 Sec. 47. Testimony or deposition at a former proceeding.·The

testimony or deposition of a witness deceased or unable to testify, given

in a former case or proceeding, judicial or administrative, involving the

same parties and subject matter, may be given in evidence against the

adverse party who had the opportunity to cross-examine him.22 Samalio v. Court of Appeals, G.R. No. 140079, 31 March 2005, 454

SCRA 462, 470.

654



in a former case or proceeding to be admissible as anexception to the hearsay rule. Petitioner PRBLI, not beinga party in Criminal Case No. 684-M-89, had no opportunityto cross-examine the three witnesses in said case. Thecriminal case was filed exclusively against petitionerManliclic, petitioner PRBLIÊs employee. The cases dealingwith the subsidiary liability of employers uniformly declarethat, strictly speaking, they are not parties to the criminalcases instituted against their employees.

23

Notwithstanding the fact that petitioner PRBLI was nota party in said criminal case, the testimonies of the three





witnesses are still admissible on the ground that petitionerPRBLI failed to object on their admissibility.

It is elementary that an objection shall be made at thetime when an alleged inadmissible document is offered inevidence; otherwise, the objection shall be treated aswaived, since the right to object is merely a privilege whichthe party may waive. Thus, a failure to except to theevidence because it does not conform to the statute is awaiver of the provisions of the law. Even assuming exgratia argumenti that these documents are inadmissible forbeing hearsay, but on account of failure to object thereto,the same may be admitted and considered as sufficient toprove the facts therein asserted.

24

Hearsay evidence alone may be insufficient to establisha fact in a suit but, when no objection is made thereto, it is,like any other evidence, to be considered and given theimportance it deserves.

25

In the case at bar, petitioner PRBLI did not object to theTSNs containing the testimonies of respondent Calaunan,Marcelo Mendoza and Fernando Ramos in the criminalcase

_______________

23 Philippine Rabbit Bus Lines, Inc. v. People, G.R. No. 147703, 14

April 2004, 427 SCRA 456, 471.24 Tison v. Court of Appeals, G.R. No. 121027, 31 July 1997, 276 SCRA

582.25 Top-Weld Manufacturing, Inc. v. ECED, S.A., G.R. No. 44944, 9

August 1985, 138 SCRA 118.

655

VOL. 512, JANUARY 25, 2007 655


when the same were offered in evidence in the trial court.In fact, the TSNs of the testimonies of Calaunan andMendoza were admitted by both petitioners.

26 Moreover,

petitioner PRBLI even offered in evidence the TSNcontaining the testimony of Donato Ganiban in thecriminal case. If petitioner PRBLI argues that the TSNs of






the testimonies of plaintiff Ês witnesses in the criminal caseshould not be admitted in the instant case, why then did itoffer the TSN of the testimony of Ganiban which was givenin the criminal case? It appears that petitioner PRBLIwants to have its cake and eat it too. It cannot argue thatthe TSNs of the testimonies of the witnesses of the adverseparty in the criminal case should not be admitted and atthe same time insist that the TSN of the testimony of thewitness for the accused be admitted in its favor. To disallowadmission in evidence of the TSNs of the testimonies ofCalaunan, Marcelo Mendoza and Fernando Ramos in thecriminal case and to admit the TSN of the testimony ofGaniban would be unfair.

We do not subscribe to petitioner PRBLIÊs argument thatit will be denied due process when the TSNs of thetestimonies of Calaunan, Marcelo Mendoza and FernandoRamos in the criminal case are to be admitted in the civilcase. It is too late for petitioner PRBLI to raise denial ofdue process in relation to Section 47, Rule 130 of the Rulesof Court, as a ground for objecting to the admissibility ofthe TSNs. For failure to object at the proper time, it waivedits right to object that the TSNs did not comply withSection 47.

In Mangio v. Court of Appeals,27

this Court, throughAssociate Justice Reynato S. Puno,

28 admitted in evidence a

TSN of the testimony of a witness in another case despitetherein petitionerÊs assertion that he would be denied dueprocess. In admitting the TSN, the Court ruled that theraising of denial of due process in relation to Section 47,Rule 130 of the Rules

_______________

26 Records, pp. 336-337.27 G.R. No. 139849, 5 December 2001, 371 SCRA 466, 474-476.28 Now Chief Justice.

656







of Court, as a ground for objecting to the admissibility ofthe TSN was belatedly done. In so doing, therein petitionerwaived his right to object based on said ground.

Petitioners contend that the documents in the criminalcase should not have been admitted in the instant civil casebecause Section 47 of Rule 130 refers only to „testimony ordeposition.‰ We find such contention to be untenable.Though said section speaks only of testimony anddeposition, it does not mean that documents from a formercase or proceeding cannot be admitted. Said documents canbe admitted they being part of the testimonies of witnessesthat have been admitted. Accordingly, they shall be giventhe same weight as that to which the testimony may beentitled.

29

On the second assigned error, petitioners contend thatthe version of petitioner Manliclic as to how the accidentoccurred is more credible than respondentÊs version. Theyanchor their contention on the fact that petitioner Manliclicwas acquitted by the Court of Appeals of the charge ofReckless Imprudence Resulting in Damage to Propertywith Physical Injuries.

To be resolved by the Court is the effect of petitionerManliclicÊs acquittal in the civil case.

From the complaint, it can be gathered that the civilcase for damages was one arising from, or based on, quasi-delict.

30 Petitioner Manliclic was sued for his negligence or

reckless imprudence in causing the collision, whilepetitioner PRBLI was sued for its failure to exercise thediligence of a good father in the selection and supervision ofits employees, particularly petitioner Manliclic. Theallegations read:

_______________

29 People v. Martinez, G.R. No. 116918, 19 June 1997, 274 SCRA 259,

272.30 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

provision of this Chapter.

657





„4.

„5.

„6.

„7.

„8.

VOL. 512, JANUARY 25, 2007 657


That sometime on July 12, 1988 at around 6:20A.M. plaintiff was on board the above-describedmotor vehicle travelling at a moderate speed alongthe North Luzon Expressway heading Southtowards Manila together with MARCELOMENDOZA, who was then driving the same;

That approximately at kilometer 40 of the NorthLuzon Express Way, the above-described motorvehicle was suddenly bumped from behind by aPhilippine Rabbit Bus with Body No. 353 and withplate No. CVD 478 then being driven by oneMauricio Manliclic of San Jose, Concepcion, Tarlac,who was then travelling recklessly at a very fastspeed and had apparently lost control of his vehicle;

That as a result of the impact of the collision theabove-described motor vehicle was forced off theNorth Luzon Express Way towards the rightsidewhere it fell on its driverÊs side on a ditch, and thatas a consequence, the above-described motor vehiclewhich maybe valued at EIGHTY THOUSANDPESOS (P80,000) was rendered a total wreck asshown by pictures to be presented during the pre-trial and trial of this case;

That also as a result of said incident, plaintiffsustained bodily injuries which compoundedplaintiff Ês frail physical condition and required hishospitalization from July 12, 1988 up to and untilJuly 22, 1988, copy of the medical certificate ishereto attached as Annex „A‰ and made an integralpart hereof;

That the vehicular collision resulting in the totalwreckage of the above-described motor vehicle aswell as bodily (sic) sustained by plaintiff, was solelydue to the reckless imprudence of the defendantdriver Mauricio Manliclic who drove his PhilippineRabbit Bus No. 353 at a fast speed without dueregard or observance of existing traffic rules andregulations;



„9. That defendant Philippine Rabbit Bus LineCorporation failed to exercise the diligence of a goodfather of (sic) family in the selection andsupervision of its drivers; x x x‰

31

Can Manliclic still be held liable for the collision and befound negligent notwithstanding the declaration of theCourt of Appeals that there was an absence of negligenceon his part?

_______________

31 Records, pp. 1-3.

658



In exonerating petitioner Manliclic in the criminal case, theCourt of Appeals said:

„To the following findings of the court a quo, to wit: that accused-appellant was negligent „when the bus he was driving bumped thejeep from behind;‰ that „the proximate cause of the accident was hishaving driven the bus at a great speed while closely following thejeep;‰ x x x We do not agree.

The swerving of CalaunanÊs jeep when it tried to overtake thevehicle in front of it was beyond the control of accused-appellant.

x x x xAbsent evidence of negligence, therefore, accused-appellant

cannot be held liable for Reckless Imprudence Resulting in Damageto Property with Physical Injuries as defined in Article 365 of theRevised Penal Code.‰

32

From the foregoing declaration of the Court of Appeals, itappears that petitioner Manliclic was acquitted not onreasonable doubt, but on the ground that he is not theauthor of the act complained of which is based on Section2(b) of Rule 111 of the Rules of Criminal Procedure whichreads:

„(b) Extinction of the penal action does not carry with it extinction





of the civil, unless the extinction proceeds from a declaration in afinal judgment that the fact from which the civil might arise did notexist.‰

In spite of said ruling, petitioner Manliclic can still be heldliable for the mishap. The afore-quoted section applies onlyto a civil action arising from crime or ex delicto and not to acivil action arising from quasi-delict or culpa aquiliana.The extinction of civil liability referred to in Par. (e) ofSection 3, Rule 111 [now Section 2 (b) of Rule 111], refersexclusively to civil liability founded on Article 100 of theRevised Penal Code, whereas the civil liability for the sameact considered as

_______________

32 Rollo, pp. 112-114.

659

VOL. 512, JANUARY 25, 2007 659


a quasi-delict only and not as a crime is not extinguishedeven by a declaration in the criminal case that the criminalact charged has not happened or has not been committedby the accused.

33

A quasi-delict or culpa aquiliana is a separate legalinstitution under the Civil Code with a substantivity all itsown, and individuality that is entirely apart andindependent from a delict or crime·a distinction existsbetween the civil liability arising from a crime and theresponsibility for quasi-delicts or culpa extra-contractual.The same negligence causing damages may produce civilliability arising from a crime under the Penal Code, orcreate an action for quasi-delicts or culpa extra-contractualunder the Civil Code.

34 It is now settled that acquittal of

the accused, even if based on a finding that he is not guilty,does not carry with it the extinction of the civil liabilitybased on quasi delict.

35

In other words, if an accused is acquitted based onreasonable doubt on his guilt, his civil liability arising from






the crime may be proved by preponderance of evidenceonly. However, if an accused is acquitted on the basis thathe was not the author of the act or omission complained of(or that there is declaration in a final judgment that thefact from which the civil might arise did not exist), saidacquittal closes the door to civil liability based on the crimeor ex delicto. In this second instance, there being no crimeor delict to speak of, civil liability based thereon or exdelicto is not possible. In this case, a civil action, if any,may be instituted on grounds other than the delictcomplained of.

As regards civil liability arising from quasi-delict orculpa aquiliana, same will not be extinguished by anacquittal,

_______________

33 Elcano v. Hill, G.R. No. L-24803, 26 May 1977, 77 SCRA 98, 106.34 Andamo v. Intermediate Appellate Court, G.R. No. 74761, 6

November 1990, 191 SCRA 195, 203-204.35 Heirs of the Late Guaring, Jr. v. Court of Appeals, 336 Phil. 274, 279;

269 SCRA 283, 288 (1997).

660



whether it be on ground of reasonable doubt or thataccused was not the author of the act or omissioncomplained of (or that there is declaration in a finaljudgment that the fact from which the civil liability mightarise did not exist). The responsibility arising from fault ornegligence in a quasi-delict is entirely separate and distinctfrom the civil liability arising from negligence under thePenal Code.

36 An acquittal or conviction in the criminal

case is entirely irrelevant in the civil case37

based on quasi-delict or culpa aquiliana.

Petitioners ask us to give credence to their version ofhow the collision occurred and to disregard that ofrespondentÊs. Petitioners insist that while the PRBLI buswas in the process of overtaking respondentÊs jeep, the





latter, without warning, suddenly swerved to the left (fast)lane in order to overtake another jeep ahead of it, thuscausing the collision.

As a general rule, questions of fact may not be raised ina petition for review. The factual findings of the trial court,especially when affirmed by the appellate court, arebinding and conclusive on the Supreme Court.

38 Not being a

trier of facts, this Court will not allow a review thereofunless:

„(1) the conclusion is a finding grounded entirely on speculation,surmise and conjecture; (2) the inference made is manifestlymistaken; (3) there is grave abuse of discretion; (4) the judgment isbased on a misapprehension of facts; (5) the findings of fact areconflicting; (6) the Court of Appeals went beyond the issues of thecase and its findings are contrary to the admissions of bothappellant and appellees; (7) the findings of fact of the Court ofAppeals are contrary to those of the trial court; (8) said findings offact are conclusions without citation of specific evidence on whichthey are based; (9) the facts set forth in the petition as well as in thepeti-

_______________

36 McKee v. Intermediate Appellate Court, G.R. No. 68102 and No. 68103, 16

July 1992, 211 SCRA 517, 536.

37 Castillo v. Court of Appeals, G.R. No. 48541, 21 August 1989, 176 SCRA

591, 598.

38 Pilipinas Shell Petroleum Corporation v. John Bordman Ltd. of Iloilo,

Inc., G.R. No. 159831, 14 October 2005, 473 SCRA 151, 162.

661

VOL. 512, JANUARY 25, 2007 661


tionerÊs main and reply briefs are not disputed by the respondents;and (10) the findings of fact of the Court of Appeals are premised onthe supposed absence of evidence and contradicted by the evidenceon record.‰

39

After going over the evidence on record, we do not find anyof the exceptions that would warrant our departure from





the general rule. We fully agree in the finding of the trialcourt, as affirmed by the Court of Appeals, that it waspetitioner Manliclic who was negligent in driving thePRBLI bus which was the cause of the collision. In givingcredence to the version of the respondent, the trial courthas this say:

„x x x Thus, which of the two versions of the manner how thecollision took place was correct, would be determinative of whobetween the two drivers was negligent in the operation of theirrespective vehicle.

In this regard, it should be noted that in the statement ofMauricio Manliclic (Exh. „15‰) given to the Philippine RabbitInvestigator CV Cabading no mention was made by him about thefact that the driver of the jeep was overtaking another jeep whenthe collision took place. The allegation that another jeep was beingovertaken by the jeep of Calaunan was testified to by him only inCrim. Case No. 684-M-89 before the Regional Trial Court inMalolos, Bulacan and before this Court. Evidently, it was a productof an afterthought on the part of Mauricio Manliclic so that he couldexplain why he should not be held responsible for the incident. Hisattempt to veer away from the truth was also apparent when itwould be considered that in his statement given to the PhilippineRabbit Investigator CV Cabading (Exh. „15‰), he alleged that thePhilippine Rabbit Bus bumped the jeep of Calaunan while thePhilippine Rabbit Bus was behind the said jeep. In his testimonybefore the Regional Trial Court in Malolos, Bulacan as well as inthis Court, he alleged that the Philippine Rabbit Bus was alreadyon the left side of the jeep when the collision took place. For thisinconsistency between his statement and testimony, his explanationregarding the manner of how the collision between the jeep and thebus took place should be

_______________

39 Sigaya v. Mayuga, G.R. No. 143254, 18 August 2005, 467 SCRA 341, 352-

353.

662





taken with caution. It might be true that in the statement of OscarBuan given to the Philippine Rabbit Investigator CV Cabading, itwas mentioned by the former that the jeep of plaintiff was in the actof overtaking another jeep when the collision between the latterjeep and the Philippine Rabbit Bus took place. But the fact,however, that his statement was given on July 15, 1988, one dayafter Mauricio Manliclic gave his statement should not escapeattention. The oneday difference between the giving of the twostatements would be significant enough to entertain the possibilityof Oscar Buan having received legal advise before giving hisstatement. Apart from that, as between his statement and thestatement of Manliclic himself, the statement of the latter shouldprevail. Besides, in his Affidavit of March 10, 1989, (Exh. „14‰), theunreliability of the statement of Oscar Buan (Exh. „13‰) given to CVCabading rear its „ugly head‰ when he did not mention in saidaffidavit that the jeep of Calaunan was trying to overtake anotherjeep when the collision between the jeep in question and thePhilippine Rabbit bus took place.

x x x xIf one would believe the testimony of the defendant, Mauricio

Manliclic, and his conductor, Oscar Buan, that the PhilippineRabbit Bus was already somewhat parallel to the jeep when thecollision took place, the point of collision on the jeep should havebeen somewhat on the left side thereof rather than on its rear.Furthermore, the jeep should have fallen on the road itself ratherthan having been forced off the road. Useless, likewise to emphasizethat the Philippine Rabbit was running very fast as testified to byRamos which was not controverted by the defendants.‰

40

Having ruled that it was petitioner ManliclicÊs negligencethat caused the smash up, there arises the juris tantumpresumption that the employer is negligent, rebuttableonly by proof of observance of the diligence of a good fatherof a family.

41 Under Article 2180

42 of the New Civil Code,

when an

_______________

40 Rollo, pp. 47-50.41 Metro Manila Transit Corporation v. Court of Appeals, G.R. No.

104408, 21 June 1993, 223 SCRA 521, 539.42 Art. 2180. The obligation imposed by article 2176 is demandable not

only for oneÊs own acts or omissions, but also for those of persons for






whom one is responsible.

663

VOL. 512, JANUARY 25, 2007 663


injury is caused by the negligence of the employee, thereinstantly arises a presumption of law that there wasnegligence on the part of the master or employer either inthe selection of the servant or employee, or in supervisionover him after selection or both. The liability of theemployer under Article 2180 is direct and immediate; it isnot conditioned upon prior recourse against the negligentemployee and a prior showing of the insolvency of suchemployee. Therefore, it is incumbent upon the privaterespondents to prove that they exercised the diligence of agood father of a family in the selection and supervision oftheir employee.

43

In the case at bar, petitioner PRBLI maintains that ithad shown that it exercised the required diligence in theselection and supervision of its employees, particularlypetitioner Manliclic. In the matter of selection, it showedthe screening process that petitioner Manliclic underwentbefore he became a regular driver. As to the exercise of duediligence in the supervision of its employees, it argues thatpresence of ready investigators (Ganiban and Cabading) issufficient proof that it exercised the required due diligencein the supervision of its employees.

In the selection of prospective employees, employers arerequired to examine them as to their qualifications,experience and service records. In the supervision ofemployees, the employer must formulate standardoperating procedures,

_______________

x x x x

Employers shall be liable for the damages caused by their employees

and household helpers acting within the scope of their assigned tasks,

even though the former are not engaged in any business or industry.

x x x x




The responsibility treated of in this article shall cease when the

persons herein mentioned prove that they observed all the diligence of a

good father of a family to prevent damage.43 Dulay v. Court of Appeals, 313 Phil. 8, 23; 243 SCRA 220, 230

(1995).

664



monitor their implementation and impose disciplinarymeasures for the breach thereof. To fend off vicariousliability, employers must submit concrete proof, includingdocumentary evidence, that they complied with everythingthat was incumbent on them.

44

In Metro Manila Transit Corporation v. Court ofAppeals,

45 it was explained that:

„Due diligence in the supervision of employees on the other hand,includes the formulation of suitable rules and regulations for theguidance of employees and the issuance of proper instructionsintended for the protection of the public and persons with whom theemployer has relations through his or its employees and theimposition of necessary disciplinary measures upon employees incase of breach or as may be warranted to ensure the performance ofacts indispensable to the business of and beneficial to theiremployer. To this, we add that actual implementation andmonitoring of consistent compliance with said rules should be theconstant concern of the employer, acting through dependablesupervisors who should regularly report on their supervisoryfunctions.

In order that the defense of due diligence in the selection andsupervision of employees may be deemed sufficient and plausible, itis not enough to emptily invoke the existence of said companyguidelines and policies on hiring and supervision. As the negligenceof the employee gives rise to the presumption of negligence on thepart of the employer, the latter has the burden of proving that it hasbeen diligent not only in the selection of employees but also in theactual supervision of their work. The mere allegation of theexistence of hiring procedures and supervisory policies, withoutanything more, is decidedly not sufficient to overcome such





presumption.We emphatically reiterate our holding, as a warning to all

employers, that „the formulation of various company policies onsafety without showing that they were being complied with is notsufficient to exempt petitioner from liability arising from negligenceof its employees. It is incumbent upon petitioner to show that inrecruiting

_______________

44 Perla Compania de Seguros, Inc. v. Sarangaya III, G.R. No. 147746, 25

October 2005, 474 SCRA 191, 202.

45 Supra note 41 at pp. 540-541.

665

VOL. 512, JANUARY 25, 2007 665


and employing the erring driver the recruitment procedures andcompany policies on efficiency and safety were followed.‰ x x x.

The trial court found that petitioner PRBLI exercised thediligence of a good father of a family in the selection butnot in the supervision of its employees. It expounded asfollows:

„From the evidence of the defendants, it seems that the PhilippineRabbit Bus Lines has a very good procedure of recruiting its driveras well as in the maintenance of its vehicles. There is no evidencethough that it is as good in the supervision of its personnel. Therehas been no iota of evidence introduced by it that there are rulespromulgated by the bus company regarding the safe operation of itsvehicle and in the way its driver should manage and operate thevehicles assigned to them. There is no showing that somebody inthe bus company has been employed to oversee how its drivershould behave while operating their vehicles without courtingincidents similar to the herein case. In regard to supervision, it isnot difficult to observe that the Philippine Rabbit Bus Lines, Inc.has been negligent as an employer and it should be maderesponsible for the acts of its employees, particularly the driverinvolved in this case.‰



We agree. The presence of ready investigators after theoccurrence of the accident is not enough to exemptpetitioner PRBLI from liability arising from the negligenceof petitioner Manliclic. Same does not comply with theguidelines set forth in the cases above-mentioned. Thepresence of the investigators after the accident is notenough supervision. Regular supervision of employees, thatis, prior to any accident, should have been shown andestablished. This, petitioner failed to do. The lack ofsupervision can further be seen by the fact that there isonly one set of manual containing the rules and regulationsfor all the drivers of PRBLI.

46 How then can all the drivers

of petitioner PRBLI know and be continually informed ofthe rules and regulations when only one manual is beinglent to all the drivers?

_______________

46 TSN, 16 February 1995, pp. 23-24.

666



For failure to adduce proof that it exercised the diligence ofa good father of a family in the selection and supervision ofits employees, petitioner PRBLI is held solidarilyresponsible for the damages caused by petitionerManliclicÊs negligence.

We now go to the award of damages. The trial courtcorrectly awarded the amount of P40,838.00 as actualdamages representing the amount paid by respondent forthe towing and repair of his jeep.

47 As regards the awards

for moral and exemplary damages, same, under thecircumstances, must be modified. The P100,000.00awarded by the trial court as moral damages must bereduced to P50,000.00.

48 Exemplary damages are imposed

by way of example or correction for the public good.49

Theamount awarded by the trial court must, likewise, belowered to P50,000.00.

50 The award of P15,000.00 for

attorneyÊs fees and expenses of litigation is in order and








authorized by law.51

WHEREFORE, premises considered, the instant petitionfor review is DENIED. The decision of the Court of Appealsin CA-G.R. CV No. 55909 is AFFIRMED with theMODIFICATION that (1) the award of moral damagesshall be reduced to P50,000.00; and (2) the award ofexemplary damages shall be lowered to P50,000.00. Costsagainst petitioners.

SO ORDERED.

Ynares-Santiago (Chairperson), Austria-Martinezand Callejo, Sr., JJ., concur.

_______________

47 Exhs. „C‰ to „C-4‰ and „F.‰ Records, pp. 232-236, 288. Article 2219

(2), Civil Code.48 Kapalaran Bus Line v. Coronado, G.R. No. 85331, 25 August 1989,

176 SCRA 792, 803.49 Article 2229, Civil Code.50 Tiu v. Arriesgado, G.R. No. 138060, 1 September 2004, 437 SCRA

426, 451; Philtranco Service Enterprises, Inc. v. Court of Appeals, G.R.

No. 120553, 17 June 1997, 273 SCRA 562, 574-575.51 Article 2208 (1), (2) and (5), Civil Code.

667

VOL. 512, JANUARY 25, 2007 667

Cebu Salvage Corporation vs. Philippine Home AssuranceCorporation

Petition denied, judgment affirmed with modification.

Notes.·A previous decision or judgment, whileadmissible in evidence, may only prove that an accusedwas previously convicted of a crime. It may not be used toprove that the accused is guilty of a crime charged in asubsequent case, in lieu of the requisite evidence provingthe commission of the crime, as said previous decision ishearsay. To sanction its being used as a basis for convictionin a subsequent case would constitute a violation of theright of the accused to confront the witnesses against him.




(People vs. Ortiz-Miyake, 279 SCRA 180 [1997])The Court of Appeals commits an error when it deletes

the lower courtÊs award of moral damages in the dispositiveportion simply on the ground that there was no findingthereon in the body of the decision since in criminal casesan appeal opens the whole case for review, including areview of the indemnity and damages involved. (People vs.Castro, 282 SCRA 212 [1997])

··o0o··



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Quiambao vs. Osorio

No. L-48157. March 16, 1988.*

RICARDO QUIAMBAO, petitioner, vs. HON. ADRIANOOSORIO, ZENAIDA GAZA BUENSUCERO, JUSTINAGAZA BERNARDO, and FELIPE GAZA, respondents-appellees, LAND AUTHORITY, intervenor-appellant.

Remedial Law; Special Proceedings; Forcible entry and

detainer; Prejudicial question, meaning and applicability of.·Aprejudicial question. is understood in law to be that which arises ina case the resolution of which is a logical antecedent of the issueinvolved in said case and the cognizance of which pertains toanother tribunal. The doctrine of prejudicial question comes intoplay generally in a situation where civil and criminal actions arepending and the issues involved in both cases are similar or soclosely-related that an issue must be preemptively resolved in thecivil case before the criminal action can proceed. Thus, the existenceof a prejudicial question in a civil case is alleged in the criminalcase to cause the suspension of the latter pending finaldetermination of the former.

Same; Same; Same; Same; Essential elements of a prejudicial

question.·The essential elements of a prejudicial question asprovided under Section 5, Rule III of the Revised Rules of Court are:[a] the civil action involves an issue similar or intimately related tothe issue in the criminal action; and [b] the resolution of such issuedetermines whether or not the criminal action may proceed.

Same; Same; Same; Same; Actions in case at bar being

respectively civil and administrative in character, no prejudicial

question exists; Reason.·The actions involved in the case at barbeing respectively civil and administrative in character, it is obviousthat technically, there is no prejudicial question to speak of. Equally

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apparent, however, is the intimate correlation between said two [2]proceedings, stemming from the fact that the right of privaterespondents to eject petitioner from the disputed portion dependsprimarily on the resolution of the pending administrative case. Forwhile it may be true that private respondents had prior possessionof the lot in question, at the time of the institution of the ejectmentcase, such right of possession had been terminated, or at the veryleast, suspended by the cancellation by the Land Authority of theAgreement to Sell executed in their favor. Whether or not privaterespondents can continue to exercise their right of possession is buta

_____________

* THIRD DIVISION.

675

VOL. 158, MARCH 16, 1988 675

Quiambao vs. Osorio

necessary, logical consequence of the issue involved in the pendingadministrative case assailing the validity of the cancellation of theAgreement to Sell and the subsequent award of the disputedportion to petitioner. If the cancellation of the Agreement to Selland the subsequent award to petitioner are voided, then privaterespondents would have every right to eject petitioner from thedisputed area. Otherwise, private respondents' right of possession islost and so would their right to eject petitioner from said portion.

Same; Same; Same; Same; Ejectment proceedings should beheld

in abeyance until after a determination made in the administrative

case; Allowing parties to undergo trial despite the possibility of

petitioner's right of possession being upheld in the pending

administrative case is not proper.·Faced with these distinctpossibilities, the more prudent course for the trial court to havetaken is to hold the ejectment proceedings in abeyance until after adetermination of the administrative case. Indeed, logic andpragmatism, if not jurisprudence, dictate such move. To allow the



parties to undergo trial notwithstanding the possibility ofpetitioner's right of possession being upheld in the pendingadministrative case is to needlessly require not only the parties butthe court as well to expend time, effort and money in what may turnout to be a sheer exercise in futility. x x x While this rule is properlyapplicable to instances involving two [2] court actions, the existencein the instant case of the same considerations of identity of partiesand issues, economy of time and effort for the court, the counselsand the parties as well as the need to resolve the parties' right ofpossession before the ejectment case may be properly determined,justifies the rule's analogous application to the case at bar.

PETITION to review the order of the Court of FirstInstance of Rizal.


FERNAN, J.:

This case was certified to Us by the Court of Appeals as oneinvolving pure questions of law pursuant to Section 3, Rule50 of the Revised Rules of Court.

The antecedents are as follows:In a complaint for forcible entry filed by herein private

respondents Zenaida Gaza Buensucero, Justina GazaBernardo and Felipe Gaza against herein petitionerRicardo Quiambao before the then Municipal Court ofMalabon, Rizal, docketed therein as

676


Quiambao vs. Osorio

Civil Case No. 2526, it was alleged that privaterespondents were the legitimate possessors of a 30,835 sq.m. lot known as Lot No. 4, Block 12, Bca 2039 of the LongosEstate situated at Barrio Longos, Malabon Rizal, by virtueof the Agreement to Sell No. 3482 executed in their favorby the former Land Tenure Administration [which laterbecame the Land Authority, then the Department ofAgrarian Reform]; that under cover of darkness, petitionersurreptitiously and by force, intimidation, strategy and



stealth, entered into a 400 sq. m. portion thereof, placedbamboo posts "staka" over said portion and thereafterbegan the construction of a house thereon; and that theseacts of petitioner, which were unlawful per se, entitledprivate respondents to a writ of preliminary injunction andto the ejectment of petitioner from the lot in question.

Petitioner filed a motion to dismiss the complaint, andupon denial thereof, filed his Answer to the complaint,specifically denying the material allegations therein andaverring that the Agreement upon. which privaterespondents base their prior possession over the questionedlot had already been cancelled by the Land Authority in anOrder signed by its Governor, Conrado Estrella. By way ofaffirmative defense and as a ground for dismissing thecase, petitioner alleged the pendency of L.A. Case No. 968,an administrative case before the Office of the LandAuthority between the same parties and involving thesame piece of land. In said administrative case, petitionerdisputed private respondents' right of possession over theproperty in question by reason of the latter's default in theinstallment payments for the purchase of said lot.Petitioner asserted that this administrative case wasdeterminative of private respondents' right to ejectpetitioner from the lot in question; hence a prejudicialquestion which bars a judicial action until after itstermination.

After hearing, the municipal court denied the motion todismiss contained in petitioner's affirmative defenses. Itruled that inasmuch as the issue involved in the case wasthe recovery of physical possession, the court hadjurisdiction to try and hear the case.

Dissatisfied with this ruling, petitioner filed before thethen Court of First Instance of Rizal, Branch XII, CaloocanCity in Civil Case No. C-1576 a petition for certiorari withinjunction

677

VOL. 158, MARCH 16, 1988 677

Quiambao vs. Osorio

against public respondent Judge Adriano Osorio of the



Municipal Court of Malabon and private respondents,praying for the issuance of a writ of preliminary injunctionordering respondent judge to suspend the hearing in theejectment case until after the resolution of said petition. Asprayed for, the then CFI of Rizal issued a restraining orderenjoining further proceedings in the ejectment case,

In his answer, respondent municipal judge submittedhimself to the sound discretion of the CFI in the dispositionof the petition for certiorari. Private respondents, on theother hand, filed a motion to dismiss the petition,maintaining that the administrative case did not constitutea prejudicial question as it involved the question ofownership, unlike the ejectment case which involvedmerely the question of possession.

Meanwhile, the Land Authority filed an Urgent Motionfor Leave to Intervene in Civil Case No. C-1576 allegingthe pendency of an administrative case between the sameparties on the same subject matter in L.A. Case No. 968and praying that the petition for certiorari be granted, theejectment complaint be dismissed and the Office of theLand Authority be allowed to decide the matter exclusively.

Finding the issue involved in the ejectment case to beone of prior possession, the CFI dismissed the petition forcertiorari and lifted the restraining order previously issued.Petitioner's motion for reconsideration of the dismissalorder, adopted in toto by Intervenor Land Authority wasdenied for lack of merit. Hence, this appeal filed bypetitioner Quiambao and intervenor Land Authority withthe Court of Appeals, and certified to Us as aforesaid.

The instant controversy boils down to the sole questionof whether or not the administrative case between theprivate parties involving the lot subject matter of theejectment case constitutes a prejudicial question whichwould operate as a bar to said ejectment case.

A prejudicial question is understood in law to be thatwhich arises in a case the resolution of which is a logicalantecedent of the issue involved in said case and thecognizance of which pertains to another tribunal.

1 The

doctrine of prejudicial ques-

______________




1 Zapata v. Montesa, 4 SCRA 510 (1962); People v. Aragon, 50 O.G. No.

10, 4863.

678


Quiambao vs. Osorio

tion comes into play generally in a situation where civiland criminal actions are pending and the issues involved inboth cases are similar or so closely-related that an issuemust be preemptively resolved in the civil case before thecriminal action can proceed. Thus, the existence of aprejudicial question in a civil case is alleged in the criminalcase to cause the suspension of the latter pending finaldetermination of the former.

The essential elements of a prejudicial question asprovided under Section 5, Rule 111 of the Revised Rules ofCourt are: [a] the civil action involves an issue similar orintimately related to the issue in the criminal action; and[b] the resolution of such issue determines whether or notthe criminal action may proceed.

The actions involved in the case at bar beingrespectively civil and administrative in character, it isobvious that technically, there is no prejudicial question tospeak of. Equally apparent, however, is the intimatecorrelation between said two [2] proceedings, stemmingfrom the fact that the right of private respondents to ejectpetitioner from the disputed portion depends primarily onthe resolution of the pending administrative case. Forwhile it may be true that private respondents had priorpossession of the lot in question, at the time of theinstitution of the ejectment case, such right of possessionhad been terminated, or at the very least, suspended by thecancellation by the Land Authority of the Agreement toSell executed in their favor. Whether or not privaterespondents can continue to exercise their right ofpossession is but a necessary, logical consequence of theissue involved in the pending administrative case assailingthe validity of the cancellation of the Agreement to Sell andthe subsequent award of the disputed portion to petitioner.If the cancellation of the Agreement to Sell and the



subsequent award to petitioner are voided, then privaterespondents would have every right to eject petitioner fromthe disputed area. Otherwise, private respondent's right ofpossession is lost and so would their right to ejectpetitioner from said portion.

Faced with these distinct possibilities, the more prudentcourse for the trial court to have taken is to hold theejectment proceedings in abeyance until after adetermination of the administrative case, Indeed, logic andpragmatism, if not jurisprudence, dictate such move. Toallow the parties to undergo trial

679

VOL. 158, MARCH 16, 1988 679

Quiambao vs. Osorio

notwithstanding the possibility of petitioner's right ofpossession being upheld in the pending administrative caseis to needlessly require not only the parties but the court aswell to expend time, effort and money in what may turn outto be a sheer exercise in futility. Thus, 1 Am Jur 2d tells us:

"The court in which an action is pending may, in the exercise of asound discretion, upon proper application for a stay of that action,hold the action in abeyance to abide the outcome of another pendingin another court, especially where the parties and the issues are thesame, for there is power inherent in every court to control thedisposition of causes on its dockets with economy of time and effortfor itself, for counsel, and for litigants. Where the rights of partiesto the second action cannot be properly determined until thequestions raised in the first action are settled the second actionshould be stayed."

2

While this rule is properly applicable to instances involvingtwo [2] court actions, the existence in the instant case ofthe same considerations of identity of parties and issues,economy of time and effort for the court, the counsels andthe parties as well as the need to resolve the partiesÊ rightof possession before the ejectment case may be properlydetermined, justifies the rule's analogous application to thecase at bar.




Fortich-Celdran, et al. vs. Celdran, et al., 19 SCRA 502,provides another analogous situation. In sustaining theassailed order of the then Court of First Instance ofMisamis Oriental ordering the suspension of the criminalcase for falsification of public document against severalpersons, among them the subscribing officer SantiagoCatane until the civil case involving the issue of thegenuineness of the alleged forged document shall have beendecided. this Court cited as a reason therefor its own actionon the administrative charges against said SantiagoCatane, as follows:

„It should be mentioned here also that an administrative case filedin this Court against Santiago Catane upon the same charge washeld by Us in abeyance, thus:

'As it appears that the genuineness of the document allegedly forged by

respondent attorneys in Administrative Case No. 77 [Richard Ignacio

Celdran vs. Santiago Catane, etc., et al.] is necessarily involved in Civil

Case No. R-3397 of the Cebu Court

_____________

2 at page 622.

680


Quiambao vs. Osorio

of First Instance, action on the herein complaint is withheld until that

litigation has finally been decided. Complainant Celdran shall inform the

Court about such decision.'3

If a pending civil case may be considered to be in thenature of a prejudicial question to an administrative case,We see no reason why the reverse may not be so consideredin the proper case, such as in the petition at bar.

Finally, events occuring during the pendency of thispetition attest to the wisdom of the conclusion hereinreached. For in the Manifestation filed by counsel forpetitioner, it was stated that the intervenor Land Authoritywhich later became the Department of Agrarian Reform




had promulgated a decision in the administrative case, L.A.Case No. 968 affirming the cancellation of Agreement toSell No. 3482 issued in favor of private respondents. Withthis development, the folly of allowing the ejectment case toproceed is too evident to need further elaboration.

WHEREFORE, the instant petition is herebyGRANTED. Civil Case No. 2526 of the then MunicipalCourt of Malabon, Rizal is hereby ordered DISMISSED. NoCosts.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin and Cortés, JJ.,

concur.

Petition granted.

Note.·A prejudicial question is one based on a factdistinct and separate from the crime but so intimatelyconnected with it that it determines the guilt or innocenceof the accused, and for it to suspend the criminal action. itmust appear not only that said case involves factsintimately related to those upon which the criminalprosecution would be based but also that in the resolutionof the issue or issues raised in the civil case, the guilt orinnocence of the accused would necessarily be determined.(Librodo vs. Coscolluela, Jr., 116 SCRA 303.)

··o0o··

_____________

3 Supreme Court minute resolution of April 27, 1962 in Adm. Case No.

77, Richard Ignacio Celdran vs. Santiago Catane, etc., et al.

681



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VOL. 205, JANUARY 30, 1992 625

Yap vs. Paras

G.R. No. 101236. January 30, 1992.*

JULIANA P. YAP, petitioner, vs. MARTIN PARAS andALFREDO D. BARCELONA, SR., Judge of the 3rd MTC ofGlan Malapatan, South Cotabato, respondents.

Remedial Law; Criminal Procedure; Prejudicial question; For a

civil case to be considered prejudicial to a criminal action, it must

appear not only that the civil case involves the same facts upon

which the criminal prosecution is based, but also that the resolution

of the issues raised in said civil action would be necessarily

determinative of the guilt or innocence of the accused.·Section 5,Rule 111 of the 1985 Rules on Criminal Procedure as amendedprovides: Section 5. Elements of prejudicial question,·The two (2)essential elements of a prejudicial question are: (a) the civil actioninvolves an issue similar or intimately related to the issue raised inthe criminal action; and (b) the resolution of such issue determineswhether or not the criminal action may proceed. A prejudicialquestion is defined as that which arises in a case the resolution ofwhich is a logical antecedent of the issue involved therein, and thecognizance of which pertains to another tribunal. The prejudicialquestion must be determinative of the case before the court but thejurisdiction to try and resolve the question must be lodged inanother court or tribunal. It is a question based on a fact distinctand separate from the crime but so intimately connected with itthat it determines the guilt or innocence of the accused. We haveheld that "for a civil case to be considered prejudicial to a criminalaction as to cause the suspension of the criminal action pending thedetermination of the civil action, it must appear not only that thecivil case involves the same facts upon which the criminalprosecution is based, but also that the resolution of the issuesraised in said civil action would be necessarily determinative of the

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guilt or innocence of the accused."

Same; Same; Same; Suspension; The order dismissing the

criminal action without a motion for suspension in accordance with

Sec. 6, Rule 111 of the 1985 Rules on Criminal Procedure as

amended and without the accused in the civil case for the annulment

of the second sale, suggests not only ignorance of the law but also

bias on the part of the respondent judge.·It is worth remarkingthat not every defense raised in the civil action will raise aprejudicial question to justify

_______________

* FIRST DIVISION.

626


Yap vs. Paras

suspension of the criminal action. The defense must involve anissue similar or intimately related to the same issue raised in thecriminal action and its resolution should determine whether or notthe latter action may proceed. The order dismissing the criminalaction without a motion for suspension in accordance with Rule 111,Section 6, of the 1985 Rules on Criminal Procedure as amended,and even without the accused indicating his defense in the civil casefor the annulment of the second sale, suggests not only ignorance ofthe law but also bias on the part of the respondent judge.

Judicial Ethics; Code of Judicial Conduct; A judge shall be

faith-ful to the law and maintain professional competence and

should administer justice impartially.·Judge Alfredo D. Barcelona,Sr. is sternly reminded that under the Code of Judicial Conduct, "ajudge shall be faithful to the law and maintain professionalcompetence" and "should administer justice impartially." He ishereby reprimanded for his questionable conduct in the case at bar,with the warning that commission of similar acts in the future willbe dealt with more severely.



SPECIAL CIVIL ACTION for certiorari to review the orderof the Municipal Trial Court of Glan Malapatan, SouthCotabato.

The facts are stated in the opinion of the Court. Mariano C. Alegarbes for petitioner. Public Attorney's Office for private respondent.

CRUZ, J.:

This is still another dispute between brother and sisterover a piece of property they inherited from their parents.The case is complicated by the circumstance that theprivate respondent's counsel in this petition is the son ofthe judge, the other respondent, whose action is beingquestioned.

Petitioner Juliana P. Yap was the sister of privaterespondent Martin Paras.

**

_______________

** She died pendente lite on September 2, 1991, and was by resolution

of the Court dated January 13, 1991, substituted by her children,

Ruperto, Rustico, Ignacio, Rogelio, Arsenio, Jr., all surnamed Yap,

Rainilda Yap Breta, and the children of the deceased Teodora Yap

Cuaycong.

627

VOL. 205, JANUARY 30, 1992 627

Yap us. Paras

On October 31, 1971, according to Yap, Paras sold to herhis share in the intestate estate of their parents forP300.00. The sale was evidenced by a private document.Nineteen years later, on May 2,1990, Paras sold the sameproperty to Santiago Saya-ang for P5,000.00. This wasevidenced by a notarized Deed of Absolute Sale.

When Yap learned of the second sale, she filed acomplaint for estafa against Paras and Saya-ang with theOffice of the Provincial Prosecutor of General Santos City.

1

On the same date, she filed a complaint for the nullification





of the said sale with the Regional Trial Court of GeneralSantos City.

2

After investigation, the Provincial Prosecutor instituteda criminal complaint for estafa against Paras with theMunicipal Circuit Trial Court of Glan-Malapatan, SouthCotabato, presided by Judge Alfredo D. Barcelona, Sr.

On April 17, 1991, before arraignment of the accused,the trial judge motu proprio issued an order dismissing thecriminal case on the ground that:

x x x after a careful scrutiny of the statements of complainant,Juliana P. Yap and of the respondent Martin Paras and hiswitnesses, the Court holds and maintained (sic) that there is a

prejudicial question to a civil action, which must be ventilated inthe proper civil court. In the case of Ras vs. Rasul, 100 SCRA 125,

the Supreme Court had already made a pronouncement that "acriminal action for Estafa for alleged double sale of property is aprejudicial question to a civil action for nullity of the alleged Deedof Sale and defense of the alleged vendors of forgeries of theirsignatures to the Deed."

3

The petitioner moved for reconsideration, which was deniedon April 30, 1991. She then came to this Court for relief inthis special civil action for certiorari.

The Court could have referred this petition to the Courtof Appeals, which has concurrent jurisdiction under BP129, but decided to resolve the case directly in view of thepeculiar circumstances involved.

_______________

1 Rollo, p. 8.2 lbid., p. 13.

3 Id,pp. 30-31.

628


Yap vs. Paras

The petitioner's contention is that where there is aprejudicial question in a civil case, the criminal action may





not be dismissed but only suspended. Moreover, thissuspension may not be done motu proprio by the judgetrying the criminal case but only upon petition of thedefendant in accordance with the Rules of Court. It is alsostressed that a reversal of the order of dismissal would notbar the prosecution of the accused under the doublejeopardy rule because he has not yet been arraigned.

The Court notes that the counsel for private respondentParas who filed the comment in his behalf is the son andnamesake of Judge Barcelona. Atty. Alfredo L. Barcelona,Jr. is employed in the Public Attorney's Office. He hasmade it of record that he was not the counsel of Paras atthe time the questioned order of dismissal was issued byhis father. He thus impliedly rejects the charge of biasagainst his father.

Perhaps out of filial loyalty, Atty. Barcelona suggeststhere may have been a basis for the order in view of thealleged double sale of the property which was beinglitigated in the regional trial court. He concedes, however,that the order may have been premature and that it couldnot have been issued motu proprio. Agreeing that doublejeopardy would not attach because of the lack ofarraignment, he asks that his Comment be considered amotion for the suspension of the criminal action on theground of prejudicial question.

The Court has deliberated on the issues and finds thatthe respondent judge did indeed commit grave abuse ofdiscretion in motu proprio issuing the order of dismissal.

Section 6, Rule 111 of the 1985 Rules on CriminalProcedure as amended by this Court on July 7, 1988,provides as follows:

Section 6. Suspension by reason of prejudicial question.·A petitionfor suspension of the criminal action based upon the pendency of aprejudicial question in a civil action may be filed in the office of thefiscal or the court conducting the preliminary investigation. Whenthe criminal action has been filed in court for trial, the petition tosuspend shall be filed in the same criminal action at any timebefore the prosecution rests.

Judge Barcelona's precipitate action is intriguing, to saythe least, in light of the clear provision of the above-quotedrule.



629

VOL. 205, JANUARY 30, 1992 629

Yap vs. Paras

The rule is not even new, being only a rewording of theoriginal provision in the Rules of Court before they wereamended. It plainly says that the suspension may be madeonly upon petition and not at the instance of the judgealone, and it also says suspension, and not dismissal. Onealso wonders if the person who notarized the disputedsecond sale, Notary Public Alexander C. Barcelona, mightbe related to the respondent judge.

But more important than the preceding considerations isthe trial judge's misapprehension of the concept of aprejudicial question.

Section 5, Rule 111 of the 1985 Rules on CriminalProcedure as amended provides:

Section 5. Elements of prejudicial question,·The two (2) essentialelements of a prejudicial question are: (a) the civil action involvesan issue similar or intimately related to the issue raised in thecriminal action; and (b) the resolution of such issue determineswhether or not the criminal action may proceed.

A prejudicial question is defined as that which arises in acase the resolution of which is a logical antecedent of theissue involved therein, and the cognizance of whichpertains to another tribunal. The prejudicial question mustbe determinative of the case before the court but thejurisdiction to try and resolve the question must be lodgedin another court or tribunal.

4 It is a question based on a

fact distinct and separate from the crime but so intimatelyconnected with it that it determines the guilt or innocenceof the accused.

5

We have held that "for a civil case to be consideredprejudicial to a criminal action as to cause the suspensionof the criminal action pending the determination of the civilaction, it must appear not only that the civil case involvesthe same facts upon which the criminal prosecution isbased, but also that the resolution of the issues raised insaid civil action would be





_______________

4 People vs. Aragon, 94 Phil. 357; Merced vs. Diez, 109 Phil. 155;

Zapanta vs. Montesa, 114 Phil. 428; Fortich-Celdran vs. Celdran, 19

SCRA 502.5 De Leon vs. Mabanag, 70 Phil. 202; Mendiola vs. Macadaeg, 1 SCRA

593.

630


Yap vs. Paras

necessarily determinative of the guilt or innocence of theaccused."

6

It is the issue in the civil action that is prejudicial to thecontinuation of the criminal action, not the criminal actionthat is prejudicial to the civil action.

The excerpt quoted by the respondent judge in his Orderdoes not appear anywhere in the decision of Ras v. Rasul.

7

Worse, he has not only misquoted the decision but alsowrongly applied it. The facts of that case are not analogousto those in the case at bar.

In that case, Ras allegedly sold to Pichel a parcel of landwhich he later also sold to Martin. Pichel brought a civilaction for nullification of the second sale and asked thatthe sale made by Ras in his favor be declared valid. Ras'sdefense was that he never sold the property to Pichel andhis purported signatures appearing in the first deed of salewere forgeries. Later, an information for estafa was filedagainst Ras based on the same double sale that was thesubject of the civil action. Ras filed a "Motion forSuspension of Action" (that is, the criminal case), claimingthat the resolution of the issues in the civil case wouldnecessarily be determinative of his guilt or innocence.

Through then Associate Justice Claudio Teehankee, thisCourt ruled that a suspension of the criminal action was inorder because:

On the basis of the issues raised in both the criminal and civil casesagainst petitioner and in the light of the foregoing concepts of aprejudicial question, there indeed appears to be a prejudicial





question in the case at bar, considering that petitioner AlejandroRas' defense (as defendant) in Civil Case No. 73 of the nullity andforgery of the alleged prior deed of sale in favor of Luis Pichel(plaintiff in the civil case and complaining witnesses in the criminalcase) is based on the very same facts which would be necessarilydeterminative of petitioner Ras' guilt or innocence as accused in thecriminal case. If the first alleged sale in favor of Pichel is void orfictitious, then there would be no double sale and petitioner wouldbe innocent of the offense charged. A conviction in the criminal case(if it were allowed to

_______________

6 Ras vs. Rasul, 100 SCRA 125; Mendiola vs. Macadaeg, supra.

7 Supra.

631

VOL. 205, JANUARY 30, 1992 631

Yap vs. Paras

proceed ahead) would be a gross injustice and would have to be setaside if it were finally decided in the civil action that indeed thealleged prior dead of sale was a forgery and spurious.

x x xThe petitioner Alejandro Ras claims in his answer to the

complaint in Civil Case No. 73 that he had never sold the propertyin litigation to the plaintiff (Luis Pichel) and that his signatures inthe alleged deed of sale and that of his wife were forged by theplaintiff. It is, therefore, necessary that the truth or falsity of suchclaim be first determined because if his claim is true, then he didnot sell his property twice and no estafa was committed. Thequestion of nullity of the sale is distinct and separate from thecrime of estafa (alleged double sale) but so intimately connectedwith it that it determines the guilt or innocence of herein petitionerin the criminal action.

In the Ras case, there was a motion to suspend thecriminal action on the ground that the defense in the civilcase·forgery of his signature in the first deed of sale·hadto be threshed out first. Resolution of that question wouldnecessarily resolve the guilt or innocence of the accused in



the criminal case. By contrast, there was no motion forsuspension in the case at bar; and no less importantly, therespondent judge had not been informed of the defenseParas was raising in the civil action. Judge Barcelona couldnot have ascertained then if the issue raised in the civilaction would determine the guilt or innocence of theaccused in the criminal case.

It is worth remarking that not every defense raised inthe civil action will raise a prejudicial question to justifysuspension of the criminal action. The defense must involvean issue similar or intimately related to the same issueraised in the criminal action and its resolution shoulddetermine whether or not the latter action may proceed.

The order dismissing the criminal action without amotion for suspension in accordance with Rule 111, Section6, of the 1985 Rules on Criminal Procedure as amended,and even without the accused indicating his defense in thecivil case for the annulment of the second sale, suggests notonly ignorance of the law but also bias on the part of therespondent judge.

Judge Alfredo D. Barcelona, Sr. is sternly reminded thatunder the Code of Judicial Conduct, "a judge shall befaithful to the law and maintain professional competence"and "should ad-

632


Samhwa Company Ltd. vs. Intermediate Appellate Court

minister justice impartially." He is hereby reprimanded forhis questionable conduct in the case at bar, with thewarning that commission of similar acts in the future willbe dealt with more severely.

WHEREFORE, the petition is GRANTED. The Orderissued by Judge Alfredo D. Barcelona, Sr. dated April 17,1991, dismissing Criminal Case No. 1902-G, and the Orderdated April 30, 1991, denying the motion forreconsideration, are REVERSED and SET ASIDE.Criminal Case No. 1902-G is ordered REINSTATED forfurther proceedings, but to be assigned to a different judge.

SO ORDERED.



Narvasa (C.J.), Griño-Aquino and Medialdea, JJ.,

concur.

Petition granted; order reversed and set aside.

Note.·Court finds Judge Montemayor guilty of grossnegligence and grave partiality in issuing the questionedorders and writs. (McCormack vs. Montemayor, 187 SCRA713.)

··o0o··



Page 1 of 19http://www.central.com.ph/sfsreader/session/0000014fd18f24a929bdb070000a0094004f00ee/p/AKJ528/?username=Guest

VOL. 208, MAY 8, 1992 863

Tamin vs. Court of Appeals

G.R. No. 97477. May 8, 1992.*

RTC JUDGE CAMILO E. TAMIN, Presiding Judge,Regional Trial Court, Branch 23, Molave, Zamboanga delSur and the MUNICIPALITY OF DUMINGAG,ZAMBOANGA DEL SUR, represented by MAYORDOMICIANO E. REAL, petitioners, vs. COURT OFAPPEALS, VICENTE MEDINA and FORTUNATAROSELLON, respondents.

Remedial Law; Actions; The allegations and not the title controlthe cause of action of the complaint.·The appellate court rightfullyupheld the jurisdiction of the Regional Trial Court over the casebased on the allegations in the complaint. The allegations and notthe title control the cause of action of the complaint.

Same; Same; Court agrees with the petitioners that thecomplaint alleges factual circumstances of a complaint forabatement of public nuisance.·Applying these criteria, we agreewith the petitioners that the complaint alleges factualcircumstances of a complaint for abatement of public nuisance.Thus, the complaint states: that petitioner municipality is theowner of a parcel of land covered by Presidential Proclamation No.365 which is reserved for a public plaza; that the privaterespondents by virtue of a contract of lease entered into by theformer mayor occupied a portion of the parcel of land constructingbuildings thereon; that the private respondents refused to vacatethe premises despite demands; that the municipality is constructinga municipal gymnasium in the area financed by appropriationsprovided by the national government; and that the appropriationsare in danger of being reverted to the national treasury because theconstruction had to be stopped in view of the refusal of the private

http://www.central.com.ph/sfsreader/session/0000014fd18f24a929bdb070000a0094004f00ee/p/AKJ528/?username=Guest#p208scra8960863001



respondents to vacate the area.

Civil Law; Nuisance.·A public plaza is outside the commerceof man and constructions thereon can be abated summarily by themunicipality.

PETITION for review of the decision and resolution of theCourt of Appeals.


____________

* EN BANC.

864



GUTIERREZ, JR., J.:

The present petition seeks to annul and set aside thedecision and resolution dated January 21, 1991 andFebruary 20, 1991, respectively of the Court of Appealswhich declared as null and void the October 10, 1991 orderof the petitioner Judge in a civil case „for ejectment withpreliminary injunction and damages‰ filed by petitionermunicipality against the private respondents granting thepetitioner municipalityÊs motion for a writ of possessionand the writ issued pursuant to it.

On September 24, 1990, petitioner municipalityrepresented by its mayor Domiciano E. Real filed with theRegional Trial Court of Zamboanga del Sur, Branch 23,Molave, presided by the petitioner Judge, a complaintdenominated as „Ejectment with Preliminary Injunctionand Damages‰ against respondents Vicente Medina andFortunata Rosellon.

The complaint alleged that the plaintiff (petitionermunicipality herein) is the owner of a parcel of residentialland located at Poblacion, Dumingag, Zamboanga del Surwith an area of 5,894 square meters more or less; that theparcel of land was reserved for public plaza under



„1.

2.

3.

Presidential Proclamation No. 365 dated March 15, 1968;that during the incumbency of the late Mayor Isidoro E.Real, Sr. or in 1958, the municipality leased an area of1,350 square meters to the defendants (respondents herein)subject to the condition that they should vacate the place incase it is needed for public purposes; that the defendantsreligiously paid the rentals until 1967; that thereafter, thedefendants refused to pay the rentals; that the incumbentmayor discovered that the defendants filed a „CadastralAnswer‰ over said lot; that the defendants refused tovacate the place despite efforts of the municipality; that thenational government had alloted an appropriation for theconstruction of a municipal gymnasium within the publicplaza but the said construction which was already startedcould not continue because of the presence of the buildingsconstructed by the defendants; that the appropriation forthe construction of the gymnasium might be reverted backto the national government which would result to„irreparable damage, injury and prejudice‰ to themunicipality and its people who are expected to derivebenefit from the accomplishment of the project.

865

VOL. 208, MAY 8, 1992 865


The complaint prayed:

That a restraining order shall be issuedimmediately after the filing of this case;

That after due notice and hearing, a writ ofpreliminary mandatory injunction shall be issuedagainst the herein defendants for them (sic) fromfurther occupying the leased portion to them (sic),and/or that a Writ of Possession be immediatelyissued to preserve the rights of the herein plaintiff;

That judgment should be entered against theherein defendants to vacate the premises of theleased portion given to them.‰ (CA Rollo, pp. 11-12)



„2.

3.

4.

On the same day, September 24, 1990, the petitioner Judgeissued an order setting the preliminary hearing for theissuance of a writ of preliminary mandatory injunctionand/or writ of possession on October 10, 1990.

Instead of filing an answer, the respondents filed amotion to dismiss alleging the lack of jurisdiction of thetrial court, since the complaint is for illegal detainer whichis within the original jurisdiction of the municipal courtand the pendency of a cadastral case (Cadastral Case No.N-10, LRC Cad. Rec. No. N-108, Lot 9481 [Pls-61] TS-218)between the parties over the ownership of the same parcelof land.

On October 10, 1990, the petitioner Judge issued two (2)orders. The first order denied the motion to dismiss. Thesecond order granted the petitioner municipalityÊs motionfor a writ of possession „with the ancillary writ ofdemolition to place in possession the plaintiff on the landsubject of this case, to the end that the public constructionthereon will not be jeopardized.‰ (CA Rollo, p. 22)

In denying the motion to dismiss, the petitioner Judgesaid:

xxx xxx xxx

In the complaint, the plaintiff alleges that the defendant isclaiming ownership over the land which was previouslyrented to defendant by the plaintiff municipality. Thisaction is, therefore, clearly an accion de reivindicacion, areal action within the jurisdiction of this court.

As the complaint is for recovery of ownership of the land notto enforce the contract, the Statute of Fraud does not apply.

866



The land subject of this case is covered by P.D. No. 365,withdrawing this land from sale of settlement and reservingthe same for school site purposes under the administrationof the Director of Public School and public plaza under theadministration of the Municipality of Dumingag, therefore



the cadastral court has no jurisdiction over the landinvolved in this case.‰ (CA Rollo, p. 20)

The petitioner Judge justified his granting the motion for awrit of possession with the ancillary writ of demolition byapplying the rule on eminent domain (Rule 67 of theRevised Rules of Court, erroneously referred to as Rule 68)in analogy in that under this Rule the complainant is giventhe right to the writ of possession in order that publicconstruction and projects will not be delayed. According tothe petitioner Judge, the necessity of a writ of possession isgreater in the instant case considering that the parcel ofland is covered by a Presidential Proclamation and the on-going construction thereon is being endangered to be leftunfinished on account of the buildings standing on theparcel of land because the appropriation for theconstruction might be reverted back to the nationaltreasury.

The private respondents filed an omnibus motion forreconsideration with motion to set aside order and to quashwrit of possession and demolition, but this was denied in anorder dated October 19, 1990.

On October 19, 1990, the petitioner municipalityimplemented the writ of possession and ancillary writ ofdemolition issued by the petitioner Judge resulting in thedispossession of the private respondents from the parcel ofland and the demolition of structures and buildings thereonowned by the respondents.

On October 23, 1990, the private respondents filed theiranswer to the complaint alleging therein that the subjectparcel of land has been owned, occupied and possessed byrespondent Vicente Medina since 1947 when he bought thesubject parcel from a Subanan native; that the otherrespondent Fortunata Rosellon leased from Medina aportion of the parcel of land; that the respondents werenever lessees of the petitioner municipality; thatProclamation No. 365 issued on March 15, 1968 recognized„private rights‰; and, that a case is pending before thecadastral court between respondent Medina and petitionermunicipality as regards the ownership of the subject parcelof land.

867



VOL. 208, MAY 8, 1992 867


Before the petitioner Judge could further act on the case,the private respondents filed a petition for certiorari withthe Court of Appeals questioning the October 10 andOctober 19, 1990 orders of the petitioner Judge.

In a resolution dated November 14, 1990, the petitionwas given due course and a temporary restraining orderwas issued enjoining the petitioner Judge from proceedingwith the hearing of the case and from enforcing the October10, and 19, 1990 orders.

On January 21, 1990, the appellate court rendered thequestioned decision. A motion for reconsideration wasdenied in a resolution dated February 20, 1991.

Hence, this petition.In a resolution dated November 26, 1991, we gave due

course to the petition.The appellate court rightfully upheld the jurisdiction of

the Regional Trial Court over the case based on theallegations in the complaint. The allegations and not thetitle control the cause of action of the complaint. (Andamov. Intermediate Appellate Court, 191 SCRA 195 [1990]).

The Court said:

„First, Does the Regional Trial Court have jurisdiction over the casebrought by the Municipality of Dimangag? As already noted, thegist of the complaint below is that the land in question is part of thepublic domain which the President of the Philippines, underProclamation No. 365, dated March 25, (should be 15) 1968,reserved for school site and public plaza in the Municipality ofDumingag and that the petitioners, to whom the former town mayorhad leased a part of the land, refused to vacate and to pay rents. Ifthis is the theory on which the complaint is based, then the actionmay really be considered one for recovery of possession. For thougha lease is alleged, the lease would be void and the municipalitycould recover the possession of the land. This is the teaching of theleading case of Municipality of Cavite v. Rojas, 30 Phil. 602 [1915]in which it was held that the lease by a municipal corporation of apublic plaza is null and void because land for public use is outsidethe commerce of man and, therefore, the lessee must restorepossession of the land by vacating it. As in this case, in the Rojas



case the action was for recovery of possession instituted in theCourt of First Instance, the counterpart of which at present is theRegional Trial Court. We, therefore, hold that the respondent judgehas jurisdiction of the case brought against petitioners

868



for recovery of possession of what is alleged to be land for public useof the respondent municipality.‰ (CA Rollo, pp. 53- 54)

Prescinding from the finding that the complaint is forrecovery of possession the appellate court concluded thatthe trial court did not have authority to issue a writ ofpossession and a writ of demolition citing the case ofMabale v. Apalisok (88 SCRA 234 [1979]), to wit:

„In that connection, it should be borne in mind that the lawspecifies when a writ of possession may be issued. That writ isavailable (1) in a land registration proceeding, which is aproceeding in rem (Sec. 17, Act No. 496; Estipona v. Navarro, 69SCRA 285, 291); (2) in an extra-judicial foreclosure of a realtymortgage (Sec. 7, Act No. 3135); (3) in a judicial foreclosure ofmortgage, a quasi in rem proceeding, provided that the mortgagor isin possession of the mortgaged realty and no third person, not aparty to the foreclosure suit, had intervened (Rivera v. Court ofFirst Instance of Nueva Ecija and Rupac, 61 Phil. 201; Ramos v.Mañalac and Lopez, 89 Phil. 270, 275) and (4) in execution sales(last par. of sec. 35, Rule 39, Rules of Court).‰

The appellate court also ruled that the trial courtcommitted an error when it applied by analogy the rule oneminent domain (Rule 67, Revised Rules of Court) to justifythe issuance of the writ of possession and writ ofdemolition. The appellate court pointed out that under thisrule:

xxx xxx xxx„x x x (i) There is clear statutory authority for the taking of

possession by the government and (ii) The authority is premised onthe government depositing the value of the land to be taken. For



unless the taking of the land is done under these conditions, thetaking would constitute deprivation of property without due processof law which the Constitution prohibits. (See Manila Railroad Co. v.Paredes, 31 Phil. 118 [1915])‰ (CA Rollo, p. 55)

The appellate court then stated:

In the case at bar, there is neither statutory authority for the trialcourtÊs action nor bond given to compensate the petitioners for thedeprivation of their possession and the destruction of their houses ifit

869

VOL. 208, MAY 8, 1992 869


turns out that the land belongs to them. For this reason, we thinkthe trial courtÊs order is arbitrary and void. For the fact is thatpetitioners claim ownership of the land in question and until thatquestion is resolved either in the case pending before therespondent judge or in the cadastral proceeding, it would be unjustto deprive petitioners of its possession. (CA Rollo, pp. 55-56)

The petitioners now contend that the allegations in thecomplaint constitute a cause of action for abatement ofpublic nuisance under Article 694 of the Civil Code. On thebasis of this proposition, the petitioners assert thatpetitioner municipality is entitled to the writ of possessionand writ of demolition.

Article 694 of the Civil Code defines nuisance as follows:

„ART. 694. A nuisance is any act, omission, establishment, business,condition of property or anything else which:

xxx xxx xxx(5) Hinders or impairs the use of property.

while Article 695 provides:

ART. 695. Nuisance is either public or private. A public nuisanceaffects a community or neighborhood or any considerable number ofpersons, although the extent of the annoyance, danger or damageupon individuals may be unequal. x x x.‰



„(1)

(2)

(3)

Applying these criteria, we agree with the petitioners thatthe complaint alleges factual circumstances of a complaintfor abatement of public nuisance. Thus, the complaintstates: that petitioner municipality is the owner of a parcelof land covered by Presidential Proclamation No. 365 whichis reserved for a public plaza; that the private respondentsby virtue of a contract of lease entered into by the formermayor occupied a portion of the parcel of land constructingbuildings thereon; that the private respondents refused tovacate the premises despite demands; that themunicipality is constructing a municipal gymnasium in thearea financed by appropriations provided by the nationalgovernment; and that the appropriations are in danger ofbeing reverted to the national treasury because theconstruction had to be stopped in view of the refusal of the

870



private respondents to vacate the area.The issue, however, is not the nature of the cause of

action alleged in the complaint. The more importantquestion is whether or not the petitioner municipality isentitled to a writ of possession and a writ of demolitioneven before the trial of the case starts.

Article 699 of the Civil Code provides for the followingremedies against a public nuisance:

A prosecution under the Penal Code or any localordinance; or

A civil action; or

Abatement, without judicial proceedings.‰

The petitioner municipality had three remedies from whichto select its cause of action. It chose to file a civil action forthe recovery of possession of the parcel of land occupied bythe private respondents. Obviously, petitioner municipalitywas aware that under the then Local Government Code(B.P. Blg. 337) the Sangguniang Bayan has to first pass an



ordinance before the municipality may summarily abate apublic nuisance. (Sec. 149(z) (ee).

On the premise that the parcel of land forms part of apublic plaza, the petitioners now contend that the Judgewas justified in issuing the writ of possession and writ ofdemolition.

A public plaza is outside the commerce of man andconstructions thereon can be abated summarily by themunicipality. We ruled in the case of Villanueva v.Castañeda, Jr. (154 SCRA 142 [1987]):

„Exactly in point is Espiritu v. Municipal Council of Pozorrubio,(102 Phil. 869-870) where the Supreme Court declared:

ÂThere is absolutely no question that the town plaza cannot be used for

the construction of market stalls, specially of residences, and that such

structures constitute a nuisance subject to abatement according to law.

Town plazas are properties of public dominion, to be devoted to public use

and to be made available to the public in general. They are outside the

commerce of man and cannot be disposed of or even leased by the

municipality to private parties.Ê

871

VOL. 208, MAY 8, 1992 871


Applying this well-settled doctrine, we rule that petitioners hadno right in the first place to occupy the disputed premises andcannot insist in remaining there now on the strength of theiralleged lease contracts. They should have realized and accepted thisearlier, considering that even before Civil Case No. 2040 wasdecided, the municipal council of San Fernando had alreadyadopted Resolution No. 29, series of 1964, declaring the area as theparking place and public plaza of the municipality.

It is the decision in Civil Case No. 2040 and the said resolution ofthe municipal council of San Fernando that respondent Macalinowas seeking to enforce when he ordered the demolition of the stallsconstructed in the disputed area. As officer-in-charge of the office ofthe mayor, he had the duty to clear the area and restore it to itsintended use as a parking place and public plaza of the municipalityof San Fernando, conformably to the aforementioned orders fromthe court and the council. It is, therefore, not correct to say that he



had acted without authority or taken the law into his hands inissuing his order.

x x x x x x x x xThe Court observes that even without such investigation and

recommendation, the respondent mayor was justified in orderingthe area cleared on the strength alone of its status as a public plazaas declared by the judicial and legislative authorities. x x x.‰

If, therefore, the allegations in the complaint are true andthat the parcel of land being occupied by the privaterespondents is indeed a public plaza, then the writ ofpossession and writ of demolition would have beenjustified. In fact, under such circumstances, there wouldhave been no need for a writ of possession in favor of thepetitioner municipality since the private respondentsÊoccupation over the subject parcel of land can not berecognized by any law. A writ of demolition would havebeen sufficient to eject the private respondents.

However, not only did the municipality avoid the use ofabatement without judicial proceedings, but the status ofthe subject parcel of land has yet to be decided.

We have to consider the fact that Proclamation No. 365dated March 15, 1968 recognizes private rights which mayhave been vested on other persons, to wit:

872



„BY THE PRESIDENT OF THE PHILIPPINES PROCLAMATION NO. 365

RESERVING FOR SCHOOL SITE, PUBLIC PLAZA ANDPLAYGROUND PURPOSES CERTAIN PARCELS OF LAND OFTHE PUBLIC DOMAIN SITUATED IN THE MUNICIPALITY OFDUMINGAG, PROVINCE OF ZAMBOANGA DEL SUR, ISLANDOF MINDANAO.

Upon recommendation of the Secretary of Agriculture andNatural Resources and pursuant to the authority vested in me bylaw, I FERDINAND E. MARCOS, PRESIDENT OF THEPHILIPPINES, do hereby withdraw from sale or settlement and



under the administration of the Director of Public Schoolsadministration of the Municipal Government of Dumingag, subjectto private rights, if any there be, certain parcels of land of the publicdomain situated in the Municipality of Dumingag, Province ofZamboanga del Sur, Island of Mindanao, xxx.‰ (CA Rollo, pp. 41-A -42) Emphasis supplied).

It is to be noted that even before the Proclamation, theparcel of land was the subject of cadastral proceedingsbefore another branch of the Regional Trial Court ofZamboanga del Sur. At the time of the filing of the instantcase, the cadastral proceedings intended to settle theownership over the questioned portion of the parcel of landunder Proclamation No. 365 were still pending. One of theclaimants in the cadastral proceedings is privaterespondent Vicente Medina who traced his ownership overthe subject parcel of land as far back as 1947 when heallegedly bought the same from a Subanan native.

Under the cadastral system, the government throughthe Director of Lands initiates the proceedings by filing apetition in court after which all owners or claimants arecompelled to act and present their answers otherwise theylose their right to their own property. The purpose is toserve the public interests by requiring that the titles to anylands „be settled and adjudicated.‰ (Section 1 Cadastral Act[No. 2259] Government of the Philippine Islands v. Abural,39 Phil. 996 [1919]. It is a proceeding in rem somewhatakin to a judicial inquiry and investigation leading to ajudicial decree. (Director of Lands v. Roman Archbishop ofManila, 41 Phil. 120 [1920]).

Considering therefore, the nature and purpose of thecadastral proceedings, the outcome of said proceedingsbecomes a

873

VOL. 208, MAY 8, 1992 873


prejudicial question which must be addressed in theresolution of the instant case. We apply by analogy theruling in the case of Quiambao v. Osorio (158 SCRA 674



[1988]), to wit:

„The instant controversy boils down to the sole question of whetheror not the administrative case between the private parties involvingthe lot subject matter of the ejectment case constitutes a prejudicialquestion which would operate as a bar to said ejectment case.

A prejudicial question is understood in law to be that whicharises in a case the resolution of which is a logical antecedent of theissue involved in said case and the cognizance of which pertains toanother tribunal. (Zapanta v. Montesa, 4 SCRA 510 [1962]; People v.Aragon, 50 O.G. No. 10, 4863) The doctrine of prejudicial questioncomes in to play generally in a situation where civil and criminalactions are pending and the issues involved in both cases aresimilar or so closelyrelated that an issue must be pre-emptivelyresolved in the civil case before the criminal action can proceed.Thus, the existence of a prejudicial question in a civil case is allegedin the criminal case to cause the suspension of the latter pendingfinal determination of the former.

The essential elements of a prejudicial question as providedunder Section 5, Rule 111 of the Revised Rules of Court are: [a] thecivil action involves an issue similar or intimately related to theissue in the criminal action; and [b] the resolution of such issuedetermines whether or not the criminal action may proceed.

The actions involved in the case at bar being respectively civiland administrative in character, it is obvious that technically, thereis no prejudicial question to speak of. Equally apparent, however, isthe intimate correlation between said two [2] proceedings,stemming from the fact that the right of private respondents toeject petitioner from the disputed portion depends primarily on theresolution of the pending administrative case. For while it may betrue that private respondents had prior possession of the lot inquestion, at the time of the institution of the ejectment case, suchright of possession had been terminated, or at the very least,suspended by the cancellation by the Land Authority of theAgreement to Sell executed in their favor. Whether or not privaterespondents can continue to exercise their right of possession is buta necessary, logical consequence of the issue involved in the pendingadministrative case assailing the validity of the cancellation of theAgreement to Sell and the subsequent award of the disputedportion to petitioner. If the cancellation of the agreement to Sell andthe subsequent award to petitioner are voided, then privaterespondentÊs right of possession is lost and so would their right toeject petitioner from said portion.



874



Faced with these distinct possibilities, the more prudent course forthe trial court to have taken is to hold the ejectment proceedings inabeyance until after a determination of the administrative case.Indeed, logic and pragmatism, if not jurisprudence, dictate suchmove. To allow the parties to undergo trial notwithstanding thepossibility of petitionerÊs right of possession being upheld in thepending administrative case is to needlessly require not only theparties but the court as well to expend time, effort in what mayturn out to be a sheer exercise in futility. Thus, 1 Am Jur 2d tellsus:

ÂThe court in which an action is pending may, in the exercise of a sound

discretion, upon proper application for a stay of that action, hold the

action in abeyance to abide the outcome of another pending in another

court, especially where the parties and the issues are the same, for there

is power inherent in every court to control the disposition of causes on its

dockets with economy of time and effort for itself, for counsel, and for

litigants. Where the rights of parties to the second action cannot be

properly determined until the questions raised in the first action are

settled the second action should be stayed.Ê

While this rule is properly applicable to instances involving two[2] court actions, the existence in the instant case of the sameconsiderations of identity of parties and issues, economy of time andeffort for the court, the counsels and the parties as well as the needto resolve the partiesÊ right of possession before the ejectment casemay be properly determined, justifies the ruleÊs analogousapplication to the case at bar.‰

Technically, a prejudicial question shall not rise in theinstant case since the two actions involved are both civil innature. However, we have to consider the fact that thecadastral proceedings will ultimately settle the realowner/s of the disputed parcel of land. In case respondentVicente Medina is adjudged the real owner of the parcel ofland, then the writ of possession and writ of demolitionwould necessarily be null and void. Not only that. The



demolition of the constructions in the parcel of land wouldprove truly unjust to the private respondents.

Parenthetically, the issuance of the writ of possessionand writ of demolition by the petitioner Judge in theejectment proceedings was premature. What the petitionershould have done was to stop the proceedings in the instantcase and wait for the

875

VOL. 208, MAY 8, 1992 875


final outcome of the cadastral proceedings.At any rate, affirmative relief based on the above

discussions is no longer possible. The demolition of thebuildings owned by the private respondents is now a faitaccompli.

In the case of Estate of Gregoria Francisco v. Court ofAppeals (199 SCRA 595 [1991]) we awarded justcompensation the amount of which was for the trial courtto determine in favor of the petitioner whose building wasdemolished by the municipality even before a propertribunal could decide whether or not the buildingconstituted a nuisance in law. Our ruling was premised onthe ground that the owner of the building was in lawfulpossession of the lot and the building by virtue of thepermit from the authorized government agency when thedemolition was effected.

We cannot, however, apply this ruling to the presentcase. The legality of the occupation by the privaterespondents of the subject parcel of land is still to beresolved in the cadastral proceedings. In the event thatrespondent Vicente Medina is declared owner of the subjectparcel of land, necessarily, the private respondents wouldbe entitled to just compensation for the precipitatedemolition of their buildings. On the other hand, if privaterespondent Medina is declared to have no rights over thesubject parcel of land then, the private respondents wouldnot be entitled to any compensation for the demolition oftheir buildings. In such a case the private respondents areconsidered squatters and therefore, the demolition of their



buildings would turn out to have been justified.Faced with these alternative possibilities, and in the

interest of justice, we rule that the petitioner municipalitymust put up a bond to be determined by the trial court toanswer for just compensation to which the privaterespondents may be entitled in case the demolition of theirbuildings is adjudged to be illegal.

Moreover, the appellate court correctly ruled that Rule67 of the Revised Rules of Court on eminent domain cannot be made a subterfuge to justify the petitioner JudgeÊsissuance of a writ of possession in favor of petitionermunicipality. In the recent case of National PowerCorporation v. Hon. Enrique T. Jocson, et al. (G.R. No.94193-99, February 25, 1992) we said:

876



„In Municipality of Biñan v. Hon. Jose Mar Garcia, et al. (180 SCRA576 [1989]) this Court ruled that there are two (2) stages in everyaction of expropriation:

ÂThe first is concerned with the determination of the authority of the

plaintiff to exercise the power of eminent domain and the propriety of its

exercise in the context of the facts involved in the suit. (Citing Sections 1,

2 and 3, Rule 67 of the Rules of Court.) It ends with an order, if not of

dismissal of the action, Âof condemnation declaring that the plaintiff has

a lawful right to take the property sought to be condemned, for the public

use or purpose described in the complaint, upon the payment of just

compensation to be determined as of the date of the filing of the

complaint.Ê (Citing Section 4, Rule 67; Nieto v. Isip, 97 Phil. 31; Benguet

Consolidated v. Republic, 143 SCRA 466). An order of dismissal, if this be

ordained, would be a final one, of course, since it finally disposes of the

action and leaves nothing more to be done by the Court on the merits.

(Citing Investments, Inc. v. Court of Appeals, et al., 147 SCRA 334) So,

too, would an order of condemnation be a final one, for thereafter as the

rules expressly state, in the proceedings before the Trial Court, Âno

objection to the exercise of the right of condemnation (or the propriety

thereof) shall be filed or heard.Ê

The second phase of the eminent domain action is concerned with the



determination by the Court of Âthe just compensation for the property

sought to be taken.Ê This is done by the Court with the assistance of not

more than three (3) commissioners. (Citing Sections 5 to 8, Rule 67 of the

Rules of Court) The order fixing the just compensation on the basis of the

evidence before, and findings of, the commissioners would be final, too. It

would finally dispose of the second stage of the suit, and leave nothing

more to be done by the Court regarding the issue. x x x.Ê

However, upon the filing of the complaint or at any timethereafter, the petitioner has the right to take or enter upon thepossession of the property involved upon compliance with P.D. No.42 which requires the petitioner, after due notice to the defendant,to deposit with the Philippine National Bank in its main office orany of its branches or agencies, Âan amount equivalent to theassessed value of the property for purposes of taxation.Ê Thisassessed value is that indicated in the tax declaration.‰

Hence, even if we concede that Rule 67 is applicable to theinstant case and that petitioner municipality had thelawful

877

VOL. 208, MAY 8, 1992 877


right to eject the private respondents from the subjectparcel of land the issuance of a writ of possession in favorof petitioner municipality would still not be legal if thepetitioner municipality really owns the land. The Judge didnot require petitioner municipality to deposit an amountequivalent to the just compensation due the privaterespondents as provided for under Presidential Decree 42.It is only after the deposit of the just compensation thatpetitioner municipality would be entitled to a writ ofpossession.

Another point raised by the petitioners questions thealleged ruling of the appellate court „that the petitionersare personally liable for damages to the privaterespondents for the abatement of public nuisance.‰ (Rollo,p. 50)

The petitioners misread the appellate courtÊs decision.



The records show that the private respondents prayed for,in their petition for certiorari filed with the appellate court,among others:

„It is likewise prayed that respondents be ordered to pay jointly andseverally the value of the house illegally demolished in the amountof P1,000,000.00, attorneyÊs fees in the amount of P50,000.00, moraldamages in the amount of P100,000.00 and exemplary damages inthe amount of P50,000.00, to pay the costs, x x x.‰

xxx xxx xxx

(CA Rollo, p. 6)

In response to this prayer, however, the appellate courtstated:

„We do not, however, have jurisdiction over petitionersÊ claim fordamages. This must be pursued in an appropriate action institutedin the Regional Trial Court.‰ (Rollo, p. 26)

Moreover, the dispositive portion of the decision does notmention any personal liability for damages against thepetitioners. The apprehension of the petitioners lacksfactual basis.

WHEREFORE, the instant petition is DISMISSED. Thequestioned decision and resolution of the Court of Appealsare AFFIRMED. The trial court is ordered to require thepetitioner municipality to put up a bond to be determinedby the court after hearing to answer, for just compensationdue the private

878


Oporto vs. Court of Appeals

respondents in case the demolition of their buildings isadjudged to be illegal. The „Motion to Declare in Contempt‰filed by petitioner Judge is referred to the Regional TrialCourt of Pagadian City, Branch 18 in Civil Case No. 3156for appropriate action.

SO ORDERED.



Narvasa (C.J.), Melencio-Herrera, Cruz, Paras,Feliciano, Padilla, Bidin, Griño-Aquino, Medialdea,Regalado, Davide, Jr., Romero and Nocon, JJ., concur.

Bellosillo, J., On leave.

Petition dismissed; decision and resolution affirmed.

··o0o··



Page 1 of 20http://www.central.com.ph/sfsreader/session/0000014fd191452394333dea000a0094004f00ee/p/AKY832/?username=Guest

G.R. No. 147902. March 17, 2006.*

SPOUSES VICENTE YU AND DEMETRIA LEE-YU,petitioners, vs. PHILIPPINE COMMERCIALINTERNATIONAL BANK, respondent.

Civil Law; Loans; Mortgages; Foreclosures; What the law pro-

scribes is the foreclosure of only a portion of the property or a

number of the several properties mortgaged corresponding to the

unpaid portion of the debt where, before foreclosure proceedings,

partial payment was made by the debtor on his total outstanding

loan or obligation·the debtor who has paid a part of the debt

cannot ask for the proportionate extinguishment of the mortgage as

long as the debt is not completely satisfied.·What the lawproscribes is the foreclosure of only a portion of the property or anumber of the several properties mortgaged corresponding to theunpaid portion of the debt where, before foreclosure proceedings,partial payment was made by

_______________

* FIRST DIVISION.

57

VOL. 485, MARCH 17, 2006 57

Yu vs. Philippine Commercial International Bank

the debtor on his total outstanding loan or obligation. This alsomeans that the debtor cannot ask for the release of any portion ofthe mortgaged property or of one or some of the several lots

http://www.central.com.ph/sfsreader/session/0000014fd191452394333dea000a0094004f00ee/p/AKY832/?username=Guest#p485scra8960056001



mortgaged unless and until the loan thus secured has been fullypaid, notwithstanding the fact that there has been partialfulfillment of the obligation. Hence, it is provided that the debtorwho has paid a part of the debt cannot ask for the proportionateextinguishment of the mortgage as long as the debt is notcompletely satisfied. In essence, indivisibility means that themortgage obligation cannot be divided among the different lots, thatis, each and every parcel under mortgage answers for the totality ofthe debt.

Mortgages; Foreclosures; Venues; The venue for the extra-

judicial foreclosure proceedings is the place where each of the

mortgaged property is located, as prescribed by Section 2 of Act No.

3135.·The venue of the extrajudicial foreclosure proceedings is theplace where each of the mortgaged property is located, as prescribedby Section 2 of Act No. 3135, to wit: SECTION 2. Said sale cannotbe made legally outside of the province in which the property sold issituated; and in case the place within said province in which thesale is to be made is subject to stipulation, such sale shall be madein said place or in the municipal building of the municipality inwhich the property or part thereof is situated.

Same; Same; Same; A.M. No. 99-10-05-0, the Procedure on

Extrajudicial Foreclosure of Mortgage, lays down the guidelines for

extrajudicial foreclosure proceedings on mortgaged properties

located in different provinces.·A.M. No. 99-10-05-0, the Procedureon Extra-judicial Foreclosure of Mortgage, lays down the guidelinesfor extra-judicial foreclosure proceedings on mortgaged propertieslocated in different provinces. It provides that the venue of theextrajudicial foreclosure proceedings is the place where each of themortgaged property is located. The indivisibility of the real estatemortgage is not violated by conducting two separate foreclosureproceedings on mortgaged properties located in different provincesas long as each parcel of land is answerable for the entire debt.

Civil Procedure; Criminal Procedure; Prejudicial Questions;

Prejudicial question generally comes into play in a situation where a

civil action and a criminal action are both pending and there exists

in the former an issue that must be preemptively resolved before the

58





criminal action may proceed, because howsoever the issue raised in

the civil action is resolved would be determinative juris et de jure of

the guilt or innocence of the accused in the criminal case.·Aprejudicial question is one that arises in a case the resolution ofwhich is a logical antecedent of the issue involved therein, and thecognizance of which pertains to another tribunal. It generally comesinto play in a situation where a civil action and a criminal actionare both pending and there exists in the former an issue that mustbe preemptively resolved before the criminal action may proceed,because howsoever the issue raised in the civil action is resolvedwould be determinative juris et de jure of the guilt or innocence ofthe accused in the criminal case. The rationale behind the principleof prejudicial question is to avoid two conflicting decisions. In thepresent case, the complaint of the petitioners for Annulment ofExtrajudicial Sale is a civil action and the respondentÊs petition forthe issuance of a writ of possession of Lot No. 3-A, Block 1, Psd-07-021410, TCT No. 44668 is but an incident in the land registrationcase and, therefore, no prejudicial question can arise from theexistence of the two actions. A similar issue was raised in Manalo v.

Court of Appeals, 366 SCRA 752, 766 (2001), where we held that: Atany rate, it taxes our imagination why the questions raised in CaseNo. 98-0868 must be considered determinative of Case No. 9011.The basic issue in the former is whether the respondent, as thepurchaser in the extrajudicial foreclosure proceedings, may becompelled to have the property repurchased or resold to amortgagorÊs successor-in-interest (petitioner); while that in thelatter is merely whether the respondent, as the purchaser in theextrajudicial foreclosure proceedings, is entitled to a writ ofpossession after the statutory period for redemption has expired.The two cases, assuming both are pending, can proceed separatelyand take their own direction independent of each other. In thepresent case, Civil Case No. 99-01369-D and Spec. Proc. No. 99-00988-D are both civil in nature. The issue in Civil Case No. 99-01369-D is whether the extra-judicial foreclosure of the real estatemortgage executed by the petitioners in favor of the respondent andthe sale of their properties at public auction are null and void,whereas, the issue in Spec. Proc. No. 99-00988-D is whether therespondent is entitled to a writ of possession of the foreclosedproperties. Clearly, no prejudicial question can arise from theexistence of the two actions. The two cases can proceed separately



and take their own direction independently of each other.

59

VOL. 485, MARCH 17, 2006 59


Mortgages; Foreclosures; Writs of Possession; The mortgagor

may file a petition to set aside the sale and for the cancellation of a

writ of possession with the trial court which issued the writ of

possession within 30 days after the purchaser mortgagee was given

possession.·The mortgagor may file a petition to set aside the saleand for the cancellation of a writ of possession with the trial courtwhich issued the writ of possession within 30 days after thepurchaser mortgagee was given possession. It provides the plain,speedy, and adequate remedy in opposing the issuance of a writ ofpossession. Thus, this provision presupposes that the trial courtalready issued a writ of possession.

Civil Procedure; Litis Pendentia; Litis pendentia refers to that

situation wherein another action is pending between the same

parties for the same cause of actions and that the second action

becomes unnecessary and vexatious.·Litis pendentia refers to thatsituation wherein another action is pending between the sameparties for the same cause of actions and that the second actionbecomes unnecessary and vexatious. For litis pendentia to beinvoked, the concurrence of the following requisites is necessary: (a)identity of parties or at least such as represent the same interest inboth actions; (b) identity of rights asserted and reliefs prayed for,the reliefs being founded on the same facts; and, (c) the identity inthe two cases should be such that the judgment that may berendered in one would, regardless of which party is successful,amount to res judicata in the other.

Same; Same; A separate case for annulment of mortgage and

foreclosure sale cannot be barred by litis pendentia or res judicata.

·The issuance of the writ of possession being a ministerial

function, and summary in nature, it cannot be said to be a judgmenton the merits, but simply an incident in the transfer of title. Hence,a separate case for annulment of mortgage and foreclosure salecannot be barred by litis pendentia or res judicata.

Civil Procedure; Judgments; Writs of Possession; The issuance



of a writ of possession over the properties by the trial court is merely

a ministerial function whereby the trial court neither exercises its

official discretion nor judgment. Any question regarding the validity

of the mortgage or its foreclosure cannot be a legal ground for

refusing the issuance of a writ of possession.·The issuance of a writof possession over the properties by the trial court is merely aministerial

60



function. As such, the trial court neither exercises its officialdiscretion nor judgment. Any question regarding the validity of themortgage or its foreclosure cannot be a legal ground for refusing theissuance of a writ of possession. Regardless of the pending suit forannulment of the certificate of sale, respondent is entitled to a writof possession, without prejudice of course to the eventual outcome ofsaid case.


The facts are stated in the opinion of the Court. Millora & Maningding Law Offices for petitioners. Narciso, Jimenez, Gonzales, Liwanag, Bello, Valdez

and Caluya for private respondent.

AUSTRIA-MARTINEZ, J.:

Before the Court is a Petition for Review on Certiorari ofthe Decision

1 dated November 14, 2000 of the Court of

Appeals (CA) in CA-G.R. SP No. 58982 and the CAResolution dated April 26, 2001, which denied petitionerÊsMotion for Reconsideration.

The factual background of the case is as follows:Under a Real Estate Mortgage dated August 15, 1994

2

and Amendments of Real Estate Mortgage dated April 4,1995

3 and December 4, 1995,

4 spouses Vicente Yu and

Demetria Lee-Yu (petitioners) and spouses Ramon T. Yu







and Virginia A. Tiu, or Yu Tian Hock aka Victorino/VicenteYu, mortgaged their title, interest, and participation overseveral parcels of land located in Dagupan City and QuezonCity, in favor of the

_______________

1 Penned by Associate Justice Andres B. Reyes, Jr. and concurred in

by Associate Justices Cancio C. Garcia (now Associate Justice of this

Court) and Romeo A. Brawner (now retired).2 Records, pp. 7-8.3 Id., at pp. 11-13.4 Id., at pp. 20-23.

61

VOL. 485, MARCH 17, 2006 61


Philippine Commercial International Bank (respondent) assecurity for the payment of a loan in the amount ofP9,000,000.00.

5

As the petitioners failed to pay the loan, the interest,and the penalties due thereon, respondent filed on July 21,1998 with the Office of the Clerk of Court and Ex Officio

Sheriff of the Regional Trial Court of Dagupan City aPetition for Extrajudicial Foreclosure of Real EstateMortgage on the Dagupan City properties.

6 On August 3,

1998, the City Sheriff issued a Notice of Extrajudicial Salescheduling the auction sale on September 10, 1998 at 10:00oÊclock in the morning or soon thereafter in front of theJustice Hall, Bonuan, Tondaligan, Dagupan City.

7

At the auction sale on September 10, 1998, respondentemerged as the highest bidder.

8 On September 14, 1998, a

Certificate of Sale was issued in favor of respondent.9 On

October 1, 1998, the sale was registered with the Registryof Deeds of Dagupan City.

About two months before the expiration of theredemption period, or on August 20, 1999, respondent filedan Ex Parte Petition for Writ of Possession before theRegional Trial Court of Dagupan City, docketed as SpecialProceeding No. 99-00988-D and raffled to Branch 43 (RTC








Branch 43).10

Hearing was conducted on September 14,1999 and respondent presented its evidence ex parte.

11 The

testimony of Rodante Manuel was admitted ex parte andthereafter the petition was deemed submitted forresolution.

_______________

5 Id., at p. 19.6 Id., at p. 52.7 Id.8 Id., at p. 64.9 Id., at pp. 58-64.10 Id., at p. 1.11 Id., at p. 74.

62



On September 30, 1999, petitioners filed a Motion toDismiss and to Strike Out Testimony of Rodante Manuelstating that the Certificate of Sale dated September 14,1998 is void because respondent violated Article 2089 of theCivil Code on the indivisibility of the mortgaged byconducting two separate foreclosure proceedings on themortgage properties in Dagupan City and Quezon City andindicating in the two notices of extrajudicial sale thatpetitionersÊ obligation is P10,437,015.20

12 as of March 31,

1998, when petitioners are not indebted for the totalamount of P20,874,031.56.

13

In the meantime, petitioners filed a complaint forAnnulment of Certificate of Sale before the Regional TrialCourt of Dagupan City, docketed as Civil Case No. 99-03169-D and raffled to Branch 44 (RTC Branch 44).

On February 14, 2000, RTC Branch 43 deniedpetitionersÊ Motion to Dismiss and to Strike Out Testimonyof Rodante Manuel, ruling that the filing of a motion todismiss is not allowed in petitions for issuance of writ ofpossession under Section 7 of Act No. 3135.

14

On February 24, 2000, petitioners filed a Motion for








Reconsideration, further arguing that the pendency of CivilCase No. 99-03169-D in RTC Branch 44 is a prejudicialissue to Spec. Proc. No. 99-00988-D in RTC Branch 43, theresolution of which is determinative on the propriety of theissuance of a writ of possession.

15

On May 8, 2000, RTC Branch 43 denied petitionersÊMotion for Reconsideration, holding that the principle ofprejudicial question is not applicable because the casepending before RTC Branch 44 is also a civil case and not acriminal case.

16

_______________

12 Should be P10,437,015.29 per Notice of Extrajudicial Sale, Records,

p. 52.13 Id., at p. 135.14 Id., at p. 188.15 Id., at p. 195.16 Id., at p. 327.

63

VOL. 485, MARCH 17, 2006 63


On June 1, 2000, petitioners filed a Petition for Certiorari

with the CA.17

On November 14, 2000, the CA dismissedpetitionersÊ Petition for Certiorari on the grounds thatpetitioners violated Section 8 of Act No. 3135 anddisregarded the rule against multiplicity of suits in filingCivil Case No. 99-03169-D in RTC Branch 44 despite fullknowledge of the pendency of Spec. Proc. No. 99-00988-D inRTC Branch 43; that since the one-year period ofredemption has already lapsed, the issuance of a writ ofpossession in favor of respondent becomes a ministerialduty of the trial court; that the issues in Civil Case No. 99-03169-D are not prejudicial questions to Spec. Proc. No. 99-00988-D because: (a) the special proceeding is already fait

accompli, (b) Civil Case No. 99-03169-D is deemed not filedfor being contrary to Section 8 of Act No. 3135, (c) the filingof Civil Case No. 99-03169-D is an afterthought anddilatory in nature, and (d) legally speaking what seems to






A.

B.

exist is litis pendentia and not prejudicial question.18

Petitioners filed a Motion for Reconsideration19

but itwas denied by the CA on April 26, 2001.

20

Hence, the present Petition for Review on Certiorari.Petitioners pose two issues for resolution, to wit:

Whether or not a real estate mortgage over severalproperties located in different locality [sic] can beseparately foreclosed in different places.

Whether or not the pendency of a prejudicial issuerenders the issues in Special Proceedings No. 99-00988-D as [sic] moot and academic.

21

Anent the first issue, petitioners contend that since a realestate mortgage is indivisible, the mortgaged properties in

_______________

17 CA Rollo, p. 1.18Id., at p. 130.19Id., at pp. 134-137.20Id., at p. 158.21 Petition, Rollo, p. 15; and Memorandum, Rollo, pp. 143-144.

64



Dagupan City and Quezon City cannot be separatelyforeclosed. Petitioners further point out that two notices ofextra-judicial sale indicated that petitionersÊ obligation isP10,437,015.20

22 each as of March 31, 1998 or a total of

P20,874,030.40,23

yet their own computation yields onlyP9,957,508.90 as of February 27, 1998.

As to the second issue, petitioners posit that thependency of Civil Case No. 99-03169-D is a prejudicialissue, the resolution of which will render the issues in Spec.Proc. No. 99-00988-D moot and academic. Petitionersfurther aver that they did not violate Section 8 of Act No.3135 in filing a separate case to annul the certificate of salesince the use of the word „may‰ in said provision indicates









that they have the option to seek relief of filing a petition toannul the certificate of sale in the proceeding involving theapplication for a writ of possession or in a separateproceeding.

Respondent contends24

that, with respect to the firstissue, the filing of two separate foreclosure proceedings didnot violate Article 2089 of the Civil Code on theindivisibility of a real estate mortgage since Section 2 ofAct No. 3135 expressly provides that extrajudicialforeclosure may only be made in the province ormunicipality where the property is situated. Respondentfurther submits that the filing of separate applications forextrajudicial foreclosure of mortgage involving severalproperties in different locations is allowed by A.M. No. 99-10-05-0, the Procedure on Extrajudicial Foreclosure ofMortgage, as further amended on August 7, 2001.

As to the second issue, respondent maintains that thereis no prejudicial question between Civil Case No. 99-03169-D and Spec. Proc. No. 99-00988-D since the pendency of acivil action questioning the validity of the mortgage and theextra-judicial foreclosure thereof does not bar the issuanceof a writ

_______________

22Id., at p. 143.23Id.24 Comment, Rollo, p. 114; and Memorandum, Rollo, p. 152.

65

VOL. 485, MARCH 17, 2006 65


of possession. Respondent also insists that petitionersshould have filed their Petition to Annul the Certificate ofSale in the same case where possession is being sought,that is, in Spec. Proc. No. 99-00988-D, and not in aseparate proceeding (Civil Case No. 99-01369-D) becausethe venue of the action to question the validity of theforeclosure is not discretionary since the use of the word„may‰ in Section 8 of Act No. 3135 refers to the filing of the




petition or action itself and not to the venue. Respondentfurther argues that even if petitioners filed the Petition toAnnul the Certificate of Sale in Spec. Proc. No. 99-00988-D,the writ of possession must still be issued because issuanceof the writ in favor of the purchaser is a ministerial act ofthe trial court and the one-year period of redemption hasalready lapsed.

Anent the first issue, the Court finds that petitionershave a mistaken notion that the indivisibility of a realestate mortgage relates to the venue of extra-judicialforeclosure proceedings. The rule on indivisibility of a realestate mortgage is provided for in Article 2089 of the CivilCode, which provides:

„Art. 2089. A pledge or mortgage is indivisible, even though the debtmay be divided among the successors in interest of the debtor or ofthe creditor.

Therefore, the debtorÊs heir who has paid a part of the debtcannot ask for the proportionate extinguishment of the pledge ormortgage as the debt is not completely satisfied.

Neither can the creditorÊs heir who received his share of the debtreturn the pledge or cancel the mortgage, to the prejudice of theother heirs who have not been paid.

From these provisions is excepted the case in which, there beingseveral things given in mortgage or pledge, each one of themguarantees only a determinate portion of the credit.

The debtor, in this case, shall have a right to the extinguishmentof the pledge or mortgage as the portion of the debt for which eachthing is specially answerable is satisfied.‰

66



This rule presupposes several heirs of the debtor orcreditor

25 and therefore not applicable to the present case.

Furthermore, what the law proscribes is the foreclosure ofonly a portion of the property or a number of the severalproperties mortgaged corresponding to the unpaid portionof the debt where, before foreclosure proceedings, partialpayment was made by the debtor on his total outstanding




loan or obligation. This also means that the debtor cannotask for the release of any portion of the mortgaged propertyor of one or some of the several lots mortgaged unless anduntil the loan thus secured has been fully paid,notwithstanding the fact that there has been partialfulfillment of the obligation. Hence, it is provided that thedebtor who has paid a part of the debt cannot ask for theproportionate extinguishment of the mortgage as long asthe debt is not completely satisfied.

26 In essence,

indivisibility means that the mortgage obligation cannot bedivided among the different lots,

27 that is, each and every

parcel under mortgage answers for the totality of thedebt.

28

On the other hand, the venue of the extra-judicialforeclosure proceedings is the place where each of themortgaged property is located, as prescribed by Section 2 ofAct No. 3135,

29 to wit:

_______________

25 Rose Packing Co., Inc. v. Court of Appeals, G.R. No. L-33084,

November 14, 1988, 167 SCRA 309, 322; Central Bank of the Philippines

v. Court of Appeals, G.R. No. L-45710, October 3, 1985, 139 SCRA 46, 57.26 Philippine National Bank v. De los Reyes, G.R. Nos. 46898-99,

November 28, 1989, 179 SCRA 619, 626; Philippine National Bank v.

Amores, G.R. No. L-54551, November 9, 1987, 155 SCRA 445, 451;

Gonzales v. Government Service Insurance System, 194 Phil. 465, 475;

107 SCRA 492, 502 (1981).27Aquino v. Macondray & Co. Inc., 97 Phil. 731, 741 (1955).28 Philippine National Bank v. Mallorca, 128 Phil. 747, 752; 21 SCRA

694, 698 (1967); Goquiolay v. Sycip, 108 Phil. 947, 974 (1960).29 Entitled „An Act To Regulate the Sale of Property under Special

Powers Inserted in or Annexed to Real Estate Mortgages,‰ approved on

March 6, 1924.

67

VOL. 485, MARCH 17, 2006 67


„SECTION 2. Said sale cannot be made legally outside of theprovince in which the property sold is situated; and in case the







place within said province in which the sale is to be made is subjectto stipulation, such sale shall be made in said place or in themunicipal building of the municipality in which the property or partthereof is situated.‰

A.M. No. 99-10-05-0,30

the Procedure on ExtrajudicialForeclosure of Mortgage, lays down the guidelines for extra-judicialforeclosure proceedings on mortgaged properties located in differentprovinces. It provides that the venue of the extrajudicial foreclosureproceedings is the place where each of the mortgaged property islocated. Relevant portion thereof provides:

„Where the application concerns the extrajudicial foreclosure ofmortgages of real estates and/or chattels in different locationscovering one indebtedness, only one filing fee corresponding to suchindebtedness shall be collected. The collecting Clerk of Court shall,apart from the official receipt of the fees, issue a certificate ofpayment indicating the amount of indebtedness, the filing feescollected, the mortgages sought to be foreclosed, the real estatesand/or chattels mortgaged and their respective locations, whichcertificate shall serve the purpose of having the applicationdocketed with the Clerks of Court of the places where theother properties are located and of allowing theextrajudicial foreclosures to proceed thereat.‰ (Emphasissupplied)

The indivisibility of the real estate mortgage is not violatedby conducting two separate foreclosure proceedings onmortgaged properties located in different provinces as longas each parcel of land is answerable for the entire debt.PetitionersÊ assumption that their total obligation isP20,874,030.40 because the two notices of extrajudicial saleindicated that petitionersÊ obligation is P10,437,015.20

31

each, is therefore

_______________

30 Dated December 14, 1999 and further amended by the Resolutions

of January 30, 2001 and August 7, 2001.31 Supra, note 12.

68







flawed. Considering the indivisibility of a real estatemortgage, the mortgaged properties in Dagupan City andQuezon City are made to answer for the entire debt ofP10,437,015.29.

32

As to the second issue, that is, whether a civil case forannulment of a certificate of sale is a prejudicial questionto a petition for issuance of a writ of possession, this issueis far from novel and, in fact, not without precedence. InPahang v. Vestil,

33 the Court said:

„A prejudicial question is one that arises in a case the resolution ofwhich is a logical antecedent of the issue involved therein, and thecognizance of which pertains to another tribunal. It generally comesinto play in a situation where a civil action and a criminal actionare both pending and there exists in the former an issue that mustbe preemptively resolved before the criminal action may proceed,because howsoever the issue raised in the civil action is resolvedwould be determinative juris et de jure of the guilt or innocence ofthe accused in the criminal case. The rationale behind the principleof prejudicial question is to avoid two conflicting decisions.

In the present case, the complaint of the petitioners forAnnulment of Extrajudicial Sale is a civil action and therespondentÊs petition for the issuance of a writ of possession of LotNo. 3-A, Block 1, Psd-07-021410, TCT No. 44668 is but an incidentin the land registration case and, therefore, no prejudicial questioncan arise from the existence of the two actions. A similar issue wasraised in Manalo v. Court of Appeals, where we held that:

At any rate, it taxes our imagination why the questions raised in Case

No. 98-0868 must be considered determinative of Case No. 9011. The

basic issue in the former is whether the respondent, as the purchaser in

the extrajudicial foreclosure proceedings, may be compelled to have the

property repurchased or resold to a mortgagorÊs successor-in-interest

(petitioner); while that in the latter is merely whether the respondent, as

the purchaser in the extrajudicial foreclosure proceedings, is entitled to a

writ of possession after the statutory pe-

_______________

32 Id.

33 G.R. No. 148595, July 12, 2004, 434 SCRA 139.





69

VOL. 485, MARCH 17, 2006 69


riod for redemption has expired. The two cases, assuming both are

pending, can proceed separately and take their own direction

independent of each other.‰34

In the present case, Civil Case No. 99-01369-D and Spec.Proc. No. 99-00988-D are both civil in nature. The issue inCivil Case No. 99-01369-D is whether the extrajudicialforeclosure of the real estate mortgage executed by thepetitioners in favor of the respondent and the sale of theirproperties at public auction are null and void, whereas, theissue in Spec. Proc. No. 99-00988-D is whether therespondent is entitled to a writ of possession of theforeclosed properties. Clearly, no prejudicial question canarise from the existence of the two actions. The two casescan proceed separately and take their own directionindependently of each other.

Nevertheless, there is a need to correct the CAÊs viewthat petitioners violated Section 8 of Act No. 3135 anddisregarded the proscription on multiplicity of suits byinstituting a separate civil suit for annulment of thecertificate of sale while there is a pending petition forissuance of the writ of possession in a special proceeding.

Section 8 of Act No. 3135 provides:

„Sec. 8. Setting aside of sale and writ of possession.·The debtormay, in the proceedings in which possession was requested,but not later than thirty days after the purchaser was givenpossession, petition that the sale be set aside and the writ ofpossession cancelled, specifying the damages suffered by him,because the mortgage was not violated or the sale was not made inaccordance with the provisions hereof, and the court shall takecognizance of this petition in accordance with the summaryprocedure provided for in section one hundred and twelve of ActNumbered Four hundred and ninety-six; and if it finds thecomplaint of the debtor justified, it shall dispose in his favor of allor part of the




_______________

34 Id., at pp. 145-146, citing Yulienco v. Court of Appeals, 441 Phil. 397, 405-

407; 393 SCRA 143, 151-152 (2002) and Manalo v. Court of Appeals, 419 Phil.

215, 232; 366 SCRA 752, 766 (2001).

70



bond furnished by the person who obtained possession. Either of theparties may appeal from the order of the judge in accordance withsection fourteen of Act Numbered Four hundred and ninety-six; butthe order of possession shall continue in effect during the pendencyof the appeal.‰ (Emphasis supplied)

Under the provision above cited, the mortgagor may file apetition to set aside the sale and for the cancellation of awrit of possession with the trial court which issued the writof possession within 30 days after the purchaser mortgageewas given possession. It provides the plain, speedy, andadequate remedy in opposing the issuance of a writ ofpossession.

35 Thus, this provision presupposes that the trial

court already issued a writ of possession. In Sps. Ong v.

Court of Appeals,36

the Court elucidated:

„The law is clear that the purchaser must first be placed inpossession of the mortgaged property pending proceedings assailingthe issuance of the writ of possession. If the trial court later findsmerit in the petition to set aside the writ of possession, it shalldispose in favor of the mortgagor the bond furnished by thepurchaser. Thereafter, either party may appeal from the order of thejudge in accordance with Section 14 of Act 496, which provides that„every order, decision, and decree of the Court of Land Registrationmay be reviewed . . . in the same manner as an order, decision,decree or judgment of a Court of First Instance (RTC) might bereviewed.‰ The rationale for the mandate is to allow the purchaserto have possession of the foreclosed property without delay, suchpossession being founded on his right of ownership.‰

37

Accordingly, Section 8 of Act No. 3135 is not applicable tothe present case since at the time of the filing of the






separate

_______________

35 Samson v. Rivera, G.R. No. 154355, May 20, 2004, 428 SCRA 759,

770; Marcelo Steel Corporation v. Court of Appeals, 153 Phil. 362, 373; 54

SCRA 89, 100 (1973).36 388 Phil. 857; 333 SCRA 189 (2000).37 Id., at p. 865; p. 197. Reiterated in Philippine National Bank v.

Sanao Marketing Corporation, G.R. No. 153951, July 29, 2005, 465 SCRA

287, 303.

71

VOL. 485, MARCH 17, 2006 71


civil suit for annulment of the certificate of sale in RTCBranch 44, no writ of possession was yet issued by RTCBranch 43.

Similarly, the Court rejects the CAÊs application of theprinciple of litis pendentia to Civil Case No. 99-03169-D inrelation to Spec. Proc. No. 99-00988-D. Litis pendentia

refers to that situation wherein another action is pendingbetween the same parties for the same cause of actions andthat the second action becomes unnecessary and vexatious.For litis pendentia to be invoked, the concurrence of thefollowing requisites is necessary: (a) identity of parties orat least such as represent the same interest in both actions;(b) identity of rights asserted and reliefs prayed for, thereliefs being founded on the same facts; and, (c) the identityin the two cases should be such that the judgment that maybe rendered in one would, regardless of which party issuccessful, amount to res judicata in the other.

38

Applying the foregoing criteria in the instant case, litispendentia does not obtain in this case because of theabsence of the second and third requisites. The issuance ofthe writ of possession being a ministerial function, andsummary in nature, it cannot be said to be a judgment onthe merits, but simply an incident in the transfer of title.Hence, a separate case for annulment of mortgage andforeclosure sale cannot be barred by litis pendentia or res




judicata.39

Thus, insofar as Spec. Proc. No. 99-00988-D andCivil Case No. 99-03169-D pending before differentbranches of RTC Dagupan City are concerned, there is nolitis pendentia.

_______________

38 Agilent Technologies Singapore (Pte.) Ltd. v. Integrated Silicon

Technology Philippines Corporation, G.R. No. 154618, April 14, 2004, 427

SCRA 593, 601; Intramuros Administration v. Contacto, 450 Phil. 704,

713; 402 SCRA 581, 586 (2003).39 Arquiza v. Court of Appeals, G.R. No. 160479, June 8, 2005, 459

SCRA 753, 765; Sps. Ong v. Court of Appeals, supra, note 36 at pp. 867-

868; p. 199.

72



To sum up, the Court holds that the rule on indivisibility ofthe real estate mortgage cannot be equated with the venueof foreclosure proceedings on mortgaged properties locatedin different provinces since these are two unrelatedconcepts. Also, no prejudicial question can arise from theexistence of a civil case for annulment of a certificate ofsale and a petition for the issuance of a writ of possessionin a special proceeding since the two cases are both civil innature which can proceed separately and take their owndirection independently of each other.

Furthermore, since the one-year period to redeem theforeclosed properties lapsed on October 1, 1999, title to theforeclosed properties had already been consolidated underthe name of the respondent. As the owner of the properties,respondent is entitled to its possession as a matter ofright.

40 The issuance of a writ of possession over the

properties by the trial court is merely a ministerialfunction. As such, the trial court neither exercises itsofficial discretion nor judgment.

41 Any question regarding

the validity of the mortgage or its foreclosure cannot be alegal ground for refusing the issuance of a writ ofpossession.

42 Regardless of the pending suit for annulment







of the certificate of sale, respondent is entitled to a writ ofpossession, without prejudice of course to the eventualoutcome of said case.

43

WHEREFORE, the petition is DENIED.

_______________

40 De Vera v. Agloro, G.R. No. 155673, January 14, 2005, 448 SCRA

203, 214; Chailease Finance Corporation v. Ma, G.R. No. 151941, August

15, 2003, 409 SCRA 250, 253.41 Philippine National Bank v. Sanao Marketing Corporation, supra,

note 37 at p. 303.42 Idolor v. Court of Appeals, G.R. No. 161028, January 31, 2005, 450

SCRA 396, 403; Sps. Ong v. Court of Appeals, supra, note 36 at p. 866; p.

198.43 Idolor v. Court of Appeals, supra, note 42 at p. 403; Sps. Ong v.

Court of Appeals, supra, note 36 at pp. 866-867; p. 198.

73

VOL. 485, MARCH 17, 2006 73


SO ORDERED.

Panganiban (C.J., Chairperson), Ynares-Santiago,

Callejo, Sr. and Chico-Nazario, JJ., concur.

Petition denied.

Notes.·The requisites for litis pendentia to be a groundfor the dismissal of an action are: (a) identity of parties orat least such as to represent the same interest in bothactions, (b) identity of rights asserted and relief prayed for,the relief being founded on the same acts; and (c) theidentity in the two cases should be such that the judgmentwhich may be rendered in one would, regardless of whichparty is successful, amount to res judicata in the other.(Cebu International Finance Corporation vs. Court of

Appeals, 316 SCRA 488 [1999])In cases of extrajudicial foreclosure sales of real estate

mortgage, the issuance of a writ of possession is governed




by Section 7 of Act No. 3135. (Chailease Finance

Corporation vs. Ma, 409 SCRA 250 [2003])Only substantial identity is necessary to warrant the

application of res judicata·the addition or elimination ofsome parties does not alter the situation. (Dela Rama vs.

Mendiola, 401 SCRA 704 [2004])

··o0o··

74


Espino vs. Legarda



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VOL. 336, JULY 31, 2000 747

Marbella-Bobis vs. Bobis

G.R. No. 138509. July 31, 2000.*

IMELDA MARBELLA-BOBIS, petitioner, vs. ISAGANI D.BOBIS, respondent.

Criminal Procedure; Prejudicial Questions; Elements; Wordsand Phrases; A prejudicial question is one which arises in a case theresolution of which is a logical antecedent of the issue involvedtherein.·A prejudicial question is one which arises in a case theresolution of which is a logical antecedent of the issue involvedtherein. It is a question based on a fact distinct and separate fromthe crime but so intimately connected with it that it determines theguilt or innocence of the accused. It must appear not only that thecivil case involves facts upon which the criminal action is based, butalso that the resolution of the issues raised in the civil action wouldnecessarily be determinative of the criminal case. Consequently, thedefense must involve an issue similar or intimately related to thesame issue raised in the criminal action and its resolutiondeterminative of whether or not the latter action may proceed. Itstwo essential elements are: (a) the civil action involves an issuesimilar or intimately related to the issue raised in the criminalaction; and (b) the resolution of such issue determines whether ornot the criminal action may proceed.

Same; Same; Pleadings and Practice; A party who raises aprejudicial question is deemed to have hypothetically admitted thatall the essential elements of a crime have been adequately alleged inthe information, considering that the prosecution has not yetpresented a single evidence on the indictment or may not yet haverested its case.·A prejudicial question does not conclusively resolvethe guilt or innocence of the accused but simply tests the sufficiencyof the allegations in the information in order to sustain the further

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prosecution of the criminal case. A party who raises a prejudicialquestion is deemed to have hypothetically admitted that all theessential elements of a crime have been adequately alleged in theinformation, considering that the prosecution has not yet presenteda single evidence on the indictment or may not yet have rested itscase. A challenge of the allegations in the information on the groundof prejudicial question is in effect a question on the merits of thecriminal charge through a non-criminal suit.

Same; Same; Bigamy; Family Code; Article 40 of the FamilyCode requires a prior judicial declaration of nullity of a previousmarriage before a party may remarry.·Article 40 of the FamilyCode, which was effective at

_______________

* FIRST DIVISION.

748



the time of celebration of the second marriage, requires a priorjudicial declaration of nullity of a previous marriage before a partymay remarry. The clear implication of this is that it is not for theparties, particularly the accused, to determine the validity orinvalidity of the marriage. Whether or not the first marriage wasvoid for lack of a license is a matter of defense because there is stillno judicial declaration of its nullity at the time the second marriagewas contracted. It should be remembered that bigamy cansuccessfully be prosecuted provided all its elements concur·two ofwhich are a previous marriage and a subsequent marriage whichwould have been valid had it not been for the existence at thematerial time of the first marriage.

Same; Same; Same; Parties to a marriage should not bepermitted to judge for themselves its nullity, only competent courtshaving such authority.·RespondentÊs clear intent is to obtain ajudicial declaration of nullity of his first marriage and thereafter to



invoke that very same judgment to prevent his prosecution forbigamy. He cannot have his cake and eat it too. Otherwise, all thatan adventurous bigamist has to do is to disregard Article 40 of theFamily Code, contract a subsequent marriage and escape a bigamycharge by simply claiming that the first marriage is void and thatthe subsequent marriage is equally void for lack of a prior judicialdeclaration of nullity of the first. A party may even enter into amarriage aware of the absence of a requisite·usually the marriagelicense·and thereafter contract a subsequent marriage withoutobtaining a declaration of nullity of the first on the assumption thatthe first marriage is void. Such scenario would render nugatory theprovisions on bigamy. As succinctly held in Landicho v. Relova:(P)arties to a marriage should not be permitted to judge forthemselves its nullity, only competent courts having such authority.Prior to such declaration of nullity, the validity of the first marriageis beyond question. A party who contracts a second marriage thenassumes the risk of being prosecuted for bigamy.

Same; Same; Same; Elements.·People v. Dumpo, 62 Phil. 246(1935). The elements of bigamy are: (1) the offender has been legallymarried; (2) that the first marriage has not been legally dissolved,or in case his or her spouse is absent, the absent spouse has notbeen judicially declared presumptively dead; (3) that he contracts asubsequent marriage; (4) the subsequent marriage would have beenvalid had it not been for the existence of the first. The exception toprosecution for bigamy are those covered by Article 41 of the FamilyCode and by PD 1083 otherwise known as the Code of MuslimPersonal Laws of the Philippines, which provides that penal lawsrelative to the crime of bigamy „shall not apply to a person marriedx x x under Muslim Law‰ where the requirements set therein are

749

VOL. 336, JULY 31, 2000 749


met. See also Sulu Islamic Association v. Malik, 226 SCRA 193(1993); Merced v. Diez, 109 Phil. 155 (1960).

Same; Same; Same; Concubinage; The pendency of a civil casefor declaration of nullity of marriage is not a prejudicial question in



a prosecution for concubinage or bigamy.·Parties should not bepermitted to judge for themselves the nullity of their marriage, forthe same must be submitted to the determination of competentcourts. Only when the nullity of the marriage is so declared can itbe held as void, and so long as there is no such declaration thepresumption is that the marriage exists. No matter how obvious,manifest or patent the absence of an element is, the intervention ofthe courts must always be resorted to. That is why Article 40 of theFamily Code requires a „final judgment,‰ which only the courts canrender. Thus, as ruled in Landicho v. Relova, he who contracts asecond marriage before the judicial declaration of nullity of the firstmarriage assumes the risk of being prosecuted for bigamy, and insuch a case the criminal case may not be suspended on the groundof the pendency of a civil case for declaration of nullity. In a recentcase for concubinage, we held that the pendency of a civil case fordeclaration of nullity of marriage is not a prejudicial question. Thisruling applies here by analogy since both crimes presuppose thesubsistence of a marriage.

Same; Same; Same; Ignorance of Law; The legality of amarriage is a matter of law and every person is presumed to knowthe law.·Ignorance of the existence of Article 40 of the FamilyCode cannot even be successfully invoked as an excuse. Thecontracting of a marriage knowing that the requirements of the lawhave not been complied with or that the marriage is in disregard ofa legal impediment is an act penalized by the Revised Penal Code.The legality of a marriage is a matter of law and every person ispresumed to know the law. As respondent did not obtain the judicialdeclaration of nullity when he entered into the second marriage,why should he be allowed to belatedly obtain that judicialdeclaration in order to delay his criminal prosecution andsubsequently defeat it by his own disobedience of the law? If hewants to raise the nullity of the previous marriage, he can do it as amatter of defense when he presents his evidence during the trialproper in the criminal case.

Same; Same; Same; A marriage though void still needs ajudicial declaration of such fact before any party can marry again,otherwise the second marriage will also be void.·In the light ofArticle 40 of the Family Code, respondent, without first havingobtained the judicial declaration of nullity of the first marriage, cannot be said to have validly entered into the second marriage. Percurrent jurisprudence, a marriage though void



750



still needs a judicial declaration of such fact before any party canmarry again; otherwise the second marriage will also be void. Thereason is that, without a judicial declaration of its nullity, the firstmarriage is presumed to be subsisting. In the case at bar,respondent was for all legal intents and purposes regarded as amarried man at the time he contracted his second marriage withpetitioner. Against this legal backdrop, any decision in the civilaction for nullity would not erase the fact that respondent enteredinto a second marriage during the subsistence of a first marriage.Thus, a decision in the civil case is not essential to thedetermination of the criminal charge. It is, therefore, not aprejudicial question. As stated above, respondent cannot bepermitted to use his own malfeasance to defeat the criminal actionagainst him.

PETITION for review on certiorari of a decision of theRegional Trial Court of Quezon City, Br. 226.

The facts are stated in the opinion of the Court. Francisco L. Daria for petitioner. Josieline A. Tia for private respondent.

YNARES-SANTIAGO, J.:

On October 21, 1985, respondent contracted a firstmarriage with one Maria Dulce B. Javier. Without saidmarriage having been annulled, nullified or terminated,the same respondent contracted a second marriage withpetitioner Imelda Marbella-Bobis on January 25, 1996 andallegedly a third marriage with a certain Julia SallyHernandez. Based on petitionerÊs complaint-affidavit, aninformation for bigamy was filed against respondent onFebruary 25, 1998, which was docketed as Criminal CaseNo. Q98-75611 of the Regional Trial Court, Branch 226,Quezon City. Sometime thereafter, respondent initiated a



civil action for the judicial declaration of absolute nullity ofhis first marriage on the ground that it was celebratedwithout a marriage license. Respondent then filed a motionto suspend the proceedings in the criminal case for bigamyinvoking the pending civil case for nullity of the firstmarriage as a prejudicial question to the criminal ease. Thetrial judge granted the motion to suspend the criminal casein an Order dated Decem-

751

VOL. 336, JULY 31, 2000 751


ber 29, 1998.1 Petitioner filed a motion for reconsideration,

but the same was denied.Hence, this petition for review on certiorari. Petitioner

argues that respondent should have first obtained ajudicial declaration of nullity of his first marriage beforeentering into the second marriage, inasmuch as the allegedprejudicial question justifying suspension of the bigamycase is no longer a legal truism pursuant to Article 40 ofthe Family Code.

2

The issue to be resolved in this petition is whether thesubsequent filing of a civil action for declaration of nullityof a previous marriage constitutes a prejudicial question toa criminal case for bigamy.

A prejudicial question is one which arises in a case theresolution of which is a logical antecedent of the issueinvolved therein.

3 It is a question based on a fact distinct

and separate from the crime but so intimately connectedwith it that it determines the guilt or innocence of theaccused.

4 It must appear not only that the civil case

involves facts upon which the criminal action is based, butalso that the resolution of the issues raised in the civilaction would necessarily be determinative of the criminalcase.

5 Consequently, the defense must involve an issue

similar or intimately related to the same issue raised in thecriminal action and its resolution de-

_______________








(a)

(b)

1 Rollo, pp. 29-30.2 Petition, p. 6; Rollo, p. 23.3 Fortich-Celdran v. Celdran, 19 SCRA 502 (1967); Zapanta v.

Montessa, 114 Phil. 428 (1962); Merced v. Diez, 109 Phil. 155 (1960); See

also People v. Aragon, 94 Phil. 357 (1954) cited in Dichaves v. Judge

Apalit, AM-MTJ-00-1274, June 8, 2000, 333 SCRA 54.4 Yap v. Paras, 205 SCRA 625 (1992); Donato v. Luna, 160 SCRA 441

(1998); Quiambao v. Osorio, 158 SCRA 674 (1988); Mendiola v.

Macadaeg, 1 SCRA 593 (1961); Aleria v. Mendoza, 83 Phil. 427 (1949);

Berbari v. Concepcion, 40 Phil. 837 (1920).5 Ras v. Rasul, 100 SCRA 125 (1980); Benitez v. Concepcion, Jr.,2

SCRA 178 (1961) citing De Leon v. Mabanag, 70 Phil. 202 (1940).

752



terminative of whether or not the latter action mayproceed.

6 Its two essential elements are:

7

the civil action involves an issue similar orintimately related to the issue raised in thecriminal action; and

the resolution of such issue determines whether ornot the criminal action may proceed.

A prejudicial question does not conclusively resolve theguilt or innocence of the accused but simply tests thesufficiency of the allegations in the information in order tosustain the further prosecution of the criminal case. Aparty who raises a prejudicial question is deemed to havehypothetically admitted that all the essential elements of acrime have been adequately alleged in the information,considering that the prosecution has not yet presented asingle evidence on the indictment or may not yet haverested its case. A challenge of the allegations in theinformation on the ground of prejudicial question is ineffect a question on the merits of the criminal chargethrough a non-criminal suit.

Article 40 of the Family Code, which was effective at thetime of celebration of the second marriage, requires a prior





judicial declaration of nullity of a previous marriage beforea party may remarry. The clear implication of this is that itis not for the parties, particularly the accused, to determinethe validity or invalidity of the marriage.

8 Whether or not

the first marriage was void for lack of a license is a matterof defense because there is still no judicial declaration of itsnullity at the time the second marriage was contracted. Itshould be remembered that bigamy can successfully beprosecuted provided all its elements concur·two of whichare a

_______________

6 Yap v. Paras, 205 SCRA 625 (1992).7 Rules of Court, Rule 111, Sec. 5. Elements of prejudicial question.·

The two (2) essential elements of a prejudicial question are: (a) the civil

action involves an issue similar or intimately related to the issue raised

in the criminal action; and (b) the resolution of such issue determines

whether or not the criminal action may proceed. (See also Prado v.

People, 218 Phil. 571).8 Niñal v. Badayog, G.R. No. 133778, March 14, 2000, 328 SCRA 122.

753

VOL. 336, JULY 31, 2000 753


previous marriage and a subsequent marriage which wouldhave been valid had it not been for the existence at thematerial time of the first marriage.

9

In the case at bar, respondent's clear intent is to obtain ajudicial declaration of nullity of his first marriage andthereafter to invoke that very same judgment to preventhis prosecution for bigamy. He cannot have his cake andeat it too. Otherwise, all that an adventurous bigamist hasto do is to disregard Article 40 of the Family Code, contracta subsequent marriage and escape a bigamy charge bysimply claiming that the first marriage is void and that thesubsequent marriage is equally void for lack of a priorjudicial declaration of nullity of the first. A party may evenenter into a marriage aware of the absence of a requisite·usually the marriage license·and thereafter contract a





subsequent marriage without obtaining a declaration ofnullity of the first on the assumption that the firstmarriage is void. Such scenario would render nugatory theprovisions on bigamy. As succinctly held in Landicho v.Relova:

10

(P)arties to a marriage should not be permitted to judge forthemselves its nullity, only competent courts having such authority.Prior to such declaration of nullity, the validity of the first marriageis beyond question. A party who contracts a second marriage thenassumes the risk of being prosecuted for bigamy.

_______________

9 People v. Dumpo, 62 Phil. 246 (1935). The elements of bigamy are: (1)

the offender has been legally married; (2) that the first marriage has not

been legally dissolved, or in case his or her spouse is absent, the absent

spouse has not been judicially declared presumptively dead; (3) that he

contracts a subsequent marriage; (4) the subsequent marriage would

have been valid had it not been for the existence of the first. The

exception to prosecution for bigamy are those covered by Article 41 of the

Family Code and by P.D. 1083 otherwise known as the Code of Muslim

Personal Laws of the Philippines, which provides that penal laws

relative to the crime of bigamy „shall not apply to a person married x x x

under Muslim Law‰ where the requirements set therein are met. See

also Sulu Islamic Association v. Malik, 226 SCRA 193 (1993); Merced v.

Diez, 109 Phil. 155 (1960).10 22 SCRA 731, 735 (1968).

754



Respondent alleges that the first marriage in the casebefore us was void for lack of a marriage license. Petitioner,on the other hand, argues that her marriage to respondentwas exempt from the requirement of a marriage license.More specifically, petitioner claims that prior to theirmarriage, they had already attained the age of majorityand had been living together as husband and wife for atleast five years.

11 The issue in this case is limited to the





existence of a prejudicial question, and we are not calledupon to resolve the validity of the first marriage. Be that asit may, suffice it to state that the Civil Code, under whichthe first marriage was celebrated, provides that „everyintendment of law or fact leans toward the validity ofmarriage, the indissolubility of the marriage bonds.‰

12

Hence, parties should not be permitted to judge forthemselves the nullity of their marriage, for the same mustbe submitted to the determination of competent courts.Only when the nullity of the marriage is so declared can itbe held as void, and so long as there is no such declarationthe presumption is that the marriage exists.

13 No matter

how obvious, manifest or patent the absence of an elementis, the intervention of the courts must always be resortedto. That is why Article 40 of the Family Code requires a„final judgment,‰ which only the courts can render. Thus,as ruled in Landicho v. Relova,

14 he who contracts a second

marriage before the judicial declaration of nullity of thefirst marriage assumes the risk of being prosecuted forbigamy, and in such a case the criminal case may not besuspended on the ground of the pendency of a civil case fordeclaration of nullity. In a recent case for concubinage, weheld that the pendency of a civil case for declaration ofnullity of marriage is not a prejudicial question.

15 This

ruling applies here by analogy since both crimespresuppose the subsistence of a marriage.

_______________

11 Civil Code, Article 76.12 Civil Code, Article 220.13 Landicho v. Relova, supra.14 Supra.15 Beltran v. People of the Philippines, G.R. No. 137567, June 20, 2000,

334 SCRA 106.

755

VOL. 336, JULY 31, 2000 755


Ignorance of the existence of Article 40 of the Family Code







cannot even be successfully invoked as an excuse.16

Thecontracting of a marriage knowing that the requirements ofthe law have not been complied with or that the marriageis in disregard of a legal impediment is an act penalized bythe Revised Penal Code.

17 The legality of a marriage is a

matter of law and every person is presumed to know thelaw. As respondent did not obtain the judicial declaration ofnullity when he entered into the second marriage, whyshould he be allowed to belatedly obtain that judicialdeclaration in order to delay his criminal prosecution andsubsequently defeat it by his own disobedience of the law?If he wants to raise the nullity of the previous marriage, hecan do it as a matter of defense when he presents hisevidence during the trial proper in the criminal case.

The burden of proof to show the dissolution of the firstmarriage before the second marriage was contracted restsupon the defense,

18 but that is a matter that can be raised

in the trial of the bigamy case. In the meantime, it shouldbe stressed that not every defense raised in the civil actionmay be used as a prejudicial question to obtain thesuspension of the criminal action. The lower court,therefore, erred in suspending the criminal case for bigamy.Moreover, when respondent was indicted for bigamy, thefact that he entered into two marriage ceremoniesappeared indubitable. It was only after he was sued bypetitioner for bigamy that he thought of seeking a judicialdeclaration of nullity of his first marriage. The obviousintent, therefore, is that respondent merely resorted to thecivil action as a potential prejudicial question for thepurpose of frustrating or delaying his criminal prosecution.As has been discussed above, this cannot be done.

In the light of Article 40 of the Family Code, respondent,without first having obtained the judicial declaration ofnullity of the first marriage, can not be said to have validlyentered into the second marriage. Per currentjurisprudence, a marriage though void still needs a judicialdeclaration of such fact before any party can marry

_______________

16 Civil Code, Article 3.17 Revised Penal Code, Article 350.






18 People v. Dungao, 56 Phil. 805 (1931).

756



again; otherwise the second marriage will also be void.19

The reason is that, without a judicial declaration of itsnullity, the first marriage is presumed to be subsisting. Inthe case at bar, respondent was for all legal intents andpurposes regarded as a married man at the time hecontracted his second marriage with petitioner.

20 Against

this legal backdrop, any decision in the civil action fornullity would not erase the fact that respondent enteredinto a second marriage during the subsistence of a firstmarriage. Thus, a decision in the civil case is not essentialto the determination of the criminal charge. It is, therefore,not a prejudicial question. As stated above, respondentcannot be permitted to use his own malfeasance to defeatthe criminal action against him.

21

WHEREFORE, the petition is GRANTED. The orderdated December 29, 1998 of the Regional Trial Court,Branch 226 of Quezon City is REVERSED and SET ASIDEand the trial court is ordered to IMMEDIATELY proceedwith Criminal Case No. Q98-75611.

SO ORDERED.

Davide, Jr. (C.J., Chairman), Puno, Kapunan andPardo, JJ., concur.

Petition granted, order reversed and set aside.

Note.·American jurisprudence, on cases involvingstatutes in that jurisdiction which are in pari materia withours, yields the rule that after a divorce has been decreed,the innocent spouse no longer has the right to instituteproceedings against the offenders where the statuteprovides that the innocent spouse shall have the exclusiveright to institute a prosecution for adultery. (Pilapil vs.Ibay-Somera, 174 SCRA 653 [1989])






_______________

19 Apiag v. Judge Cantero, 268 SCRA 47, 61 (1997).20 Wiegel v. Hon. Sempio-Dy, 143 SCRA 499, 501 (1986).21 People v. Aragon, 94 Phil. 357, 360 (1954).



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G.R. No. 84516. December 5, 1989.*

DIONISIO CARPIO, petitioner, vs. HON. SERGIODOROJA, (Presiding Judge, MTC, Branch IV, ZamboangaCity) and EDWIN RAMIREZ Y WEE, respondents.

Criminal Law; EmployerÊs subsidiary liability under Art 100 ofthe Revised Penal Code; Case at bar.·The law involved in theinstant case is Article 103 in relation to Article 100, both of theRevised Penal Code, which reads thus: „Art. 103. Subsidiary civilliability of other persons. The subsidiary liability established in thenext preceding article shall apply to employers, teachers, persons,and corporations engaged in any kind of industry for feloniescommitted by their servants, pupils, workmen, apprentices, oremployees in the discharge of their duties.‰ Respondent contendsthat the case of Pajarito v. Señeris cannot be applied to the presentcase, the former being an action involving culpa-contractual, whilethe latter being one of culpa-aquiliana. Such a declaration iserroneous. The subsidiary liability in Art. 103 should bedistinguished from the primary liability of employers, which isquasi-delictual in character as provided in Art. 2180 of the NewCivil Code. Under Art. 103, the liability emanated from a delict. Onthe other hand, the liability under Art. 2180 is founded on culpaaquiliana. The present case is neither an action for culpa-contractual nor for culpa-aquiliana. This is basically an action toenforce the civil liability arising from crime under Art. 100 of the

* SECOND DIVISION.

2

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Carpio vs. Doroja

Revised Penal Code. In no case can this be regarded as a civil actionfor the primary liability of the employer under Art. 2180 of the NewCivil Code, i.e., action for culpa aquiliana.

Same; Same; Requisites that must concur in order that anemployer may be subsidiarily liable for the employeeÊs civil liabilityin the criminal action; Case at bar.·In order that an employer maybe held subsidiarily liable for the employeeÊs civil liability in thecriminal action, it should be shown (1) that the employer, etc. isengaged in any kind of industry, (2) that the employee committedthe offense in the discharge of his duties and (3) that he is insolvent(Basa Marketing Corp. v. Bolinao, 117 SCRA 156). The subsidiaryliability of the employer, however, arises only after conviction of theemployee in the criminal action. All these requisites present, theemployer becomes ipso facto subsidiarily liable upon the employeeÊsconviction and upon proof of the latterÊs insolvency. Needless to say,the case at bar satisfies all these requirements.

Same; Same; Same; Execution; EmployerÊs subsidiary liabilitymay be determined and enforced in the criminal case as part of theexecution proceedings against the employee.·Furthermore, we arenot convinced that the owner-operator has been deprived of his dayin court, because the case before us is not one wherein the operatoris sued for a primary liability under the Civil Code but one in whichthe subsidiary civil liability incident to and dependent upon hisemployeeÊs criminal negligence is sought to be enforced. Consideringthe subsidiary liability imposed upon the employer by law, he is insubstance and in effect a party to the criminal case. Ergo, theemployerÊs subsidiary liability may be determined and enforced inthe criminal case as part of the execution proceedings against theemployee. This Court held in the earlier case of Pajarito v. Señeris,supra, that „The proceeding for the enforcement of the subsidiarycivil liability may be considered as part of the proceeding for theexecution of the judgment. A case in which an execution has beenissued is regarded as still pending so that all proceedings on theexecution are proceedings in the suit. There is no question that thecourt which rendered the judgment has a general supervisorycontrol over its process of execution, and this power carries with itthe right to determine every question of fact and law which may beinvolved in the execution.‰



Same; Same; Same; Same; Judgment; A judgment of convictionsentencing a defendant employer to pay an indemnity in the absenceof collusion, is conclusive upon the employer in an action forenforcement of the latterÊs subsidiary liability.·The argument thatthe owner-

3

VOL. 180, DECEMBER 5, 1989 3

Carpio vs. Doroja

operator cannot be held subsidiarily liable because the matter ofsubsidiary liability was not raised on appeal and in like manner, theappellate courtÊs decision made no mention of such subsidiaryliability is of no moment. As already discussed, the filing of aseparate complaint against the operator for recovery of subsidiaryliability is not necessary since his liability is clear from the decisionagainst the accused. Such being the case, it is not indispensable forthe question of subsidiary liability to be passed upon by theappellate court. Such subsidiary liability is already implied fromthe appellate courtÊs decision. In the recent case of Vda. de Paman v.Señeris, 115 SCRA 709, this Court reiterated the followingpronouncement: „A judgment of conviction sentencing a defendantemployer to pay an indemnity in the absence of any collusionbetween the defendant and the offended party, is conclusive uponthe employer in an action for the enforcement of the latterÊssubsidiary liability not only with regard to the civil liability, butalso with regard to its amount.‰ This being the case, this Courtstated in Rotea v. Halili, 109 Phil. 495, that the court has no otherfunction than to render decision based upon the indemnity awardedin the criminal case and has no power to amend or modify it even ifin its opinion an error has been committed in the decision. Aseparate and independent action is, therefore, unnecessary andwould only unduly prolong the agony of the heirs of the victim.‰

Same; Same; Same; Same; Same; Incumbent upon the court togrant a motion for subsidiary writ of execution after hearing theemployer, and upon conviction of the employee and after execution isreturned unsatisfied due to employeeÊs insolvency.·Finally, theposition taken by the respondent appellate court that to grant the



motion for subsidiary writ of execution would in effect be to amendits decision which has already become final and executory cannot besustained. Compelling the owner-operator to pay on the basis of hissubsidiary liability does not constitute an amendment of thejudgment because in an action under Art. 103 of the Revised PenalCode, once all the requisites as earlier discussed are met, theemployer becomes ipso facto subsidiarily liable, without need of aseparate action. Such being the case, the subsidiary liability can beenforced in the same case where the award was given, and this doesnot constitute an act of amending the decision. It becomesincumbent upon the court to grant a motion for subsidiary writ ofexecution (but only after the employer has been heard), uponconviction of the employee and after execution is returnedunsatisfied due to the employeeÊs insolvency.

PETITION for certiorari to review the decision of theMunicipal Trial Court of Zamboanga City, Br. 4. Doroja, J.

4


Carpio vs. Doroja


PARAS, J.:

Before Us is a petition to review by certiorari the decisionof the Municipal Trial Court of Zamboanga City, Branch IV,which denied petitionerÊs motion for subsidiary writ ofexecution against the owner-operator of the vehicle whichfigured in the accident.

The facts of the case are undisputed.Sometime on October 23, 1985, accused-respondent

Edwin Ramirez, while driving a passenger Fuso Jitneyowned and operated by Eduardo Toribio, bumped DionisioCarpio, a pedestrian crossing the street, as a consequenceof which the latter suffered from a fractured left clavicle asreflected in the medicolegal certificate and sustainedinjuries which required medical attention for a period of (3)three months.

An information for Reckless Imprudence Resulting to



Serious Physical Injuries was filed against Edwin Ramirezwith the Municipal Trial Court of Zamboanga City, BranchIV. On January 14, 1987, the accused voluntarily pleadedguilty to a lesser offense and was accordingly convicted forReckless Imprudence Resulting to Less Serious PhysicalInjuries under an amended information punishable underArticle 365 of the Revised Penal Code. The dispositiveportion of the decision handed down on May 27, 1987 readsas follows:

„WHEREFORE, finding the accused EDWIN RAMIREZ y WEEguilty as a principal beyond reasonable doubt of the AmendedInformation to which he voluntarily pleaded guilty and appreciatingthis mitigating circumstance in his favor, hereby sentences him tosuffer the penalty of One (1) month and One (1) day to Two (2)months of Arresto Mayor in its minimum period. The accused islikewise ordered to indemnify the complainant Dionisio A. Carpiothe amount of P45.00 representing the value of the 1/2 can oftomatoes lost; the amount of P200.00 which complainant paid to theZamboanga General Hospital, to pay complainant the amount ofP1,500.00 as attorneyÊs fees and to pay the cost of this suit.

„SO ORDERED.‰ (p. 7, Rollo)

Thereafter, the accused filed an application for probation.

5

VOL. 180, DECEMBER 5, 1989 5

Carpio vs. Doroja

At the early stage of the trial, the private prosecutormanifested his desire to present evidence to establish thecivil liability of either the accused driver or the owner-operator of the vehicle. AccusedÊs counsel moved that thecourt summon the owner of the vehicle to afford the latter aday in court, on the ground that the accused is not onlyindigent but also jobless and thus cannot answer any civilliability that may be imposed upon him by the court. Theprivate prosecutor, however, did not move for theappearance of Eduardo Toribio.

The civil aspect of the above-quoted decision wasappealed by the private prosecutor to the Regional Trial



Court Branch XVI, appellant praying for moral damages inthe amount of P10,000.00, compensatory damages atP6,186.40, and attorneyÊs fees of P5,000.00. The appellatecourt, on January 20, 1988, modified the trial courtÊsdecision, granting the appellant moral damages in theamount of Five Thousand Pesos (P5,000.00), whileaffirming all other civil liabilities.

Thereafter, a writ of execution dated March 10,1988 wasduly served upon the accused but was, however, returnedunsatisfied due to the insolvency of the accused as shownby the sheriffs return. Thus, complainant moved for asubsidiary writ of execution against the subsidiary liabilityof the owner-operator of the vehicle. The same was deniedby the trial court on two grounds, namely, the decision ofthe appellate court made no mention of the subsidiaryliability of Eduardo Toribio, and the nature of the accidentfalls under „culpa-aquiliana‰ and not „culpa-contractual.‰ Amotion for reconsideration of the said order was disallowedfor the reason that complainant having failed to raise thematter of subsidiary liability with the appellate court, saidcourt rendered its decision which has become final andexecutory and the trial court has no power to alter ormodify such decision.

Hence, the instant petition.Petitioner relies heavily on the case of Pajarito v.

Señeris, 87 SCRA 275, which enunciates that „thesubsidiary liability of the owner-operator is fixed by thejudgment, because if a case were to be filed against saidoperator, the court called upon to act thereto has no otherfunction than to render a decision based on the indemnityaward in the criminal case without power to amend ormodify it even if in his opinion an error has been

6


Carpio vs. Doroja

committed in the decision.‰ Petitioner maintains that thetenor of the aforesaid decision implies that the subsidiaryliability of the owner-operator may be enforced in the sameproceeding and a separate action is no longer necessary in



order to avoid undue delay, notwithstanding the fact thatsaid employer was not made a party in the criminal action.

It is the theory of respondent that the owner-operatorcannot be validly held subsidiarily liable for the followingreasons, namely: (a) the matter of subsidiary liability wasnot raised on appeal; (b) contrary to the case of Pajarito v.Señeris, the injuries sustained by the complainant did notarise from the so-called „culpa-contractual‰ but from„culpa-aquiliana‰; (c) the judgments of appellate courtsmay not be altered, modified, or changed by the court oforigin; and (d) said owner was never made a party to thecriminal proceedings.

Thus, the underlying issue raised in this case is;whether or not the subsidiary liability of the owner-operator may be enforced in the same criminal proceedingagainst the driver where the award was given, or in aseparate civil action.

The law involved in the instant case is Article 103 inrelation to Article 100, both of the Revised Penal Code,which reads thus:

„Art. 103. Subsidiary civil liability of other persons. The subsidiaryliability established in the next preceding article shall apply toemployers, teachers, persons, and corporations engaged in any kindof industry for felonies committed by their servants, pupils,workmen, apprentices, or employees in the discharge of theirduties.‰

Respondent contends that the case of Pajarito v. Señeriscannot be applied to the present case, the former being anaction involving culpa-contractual, while the latter beingone of culpa-aquiliana. Such a declaration is erroneous.The subsidiary liability in Art. 103 should be distinguishedfrom the primary liability of employers, which is quasi-delictual in character as provided in Art. 2180 of the NewCivil Code. Under Art. 103, the liability emanated from adelict. On the other hand, the liability under Art. 2180 isfounded on culpa aquiliana. The present case is neither anaction for culpa-contractual nor for culpa-aquiliana. This isbasically an action to enforce the civil liability arising fromcrime under Art. 100 of the Revised Penal Code. In

7



VOL. 180, DECEMBER 5, 1989 7

Carpio vs. Doroja

no case can this be regarded as a civil action for theprimary liability of the employer under Art. 2180 of theNew Civil Code, i.e., action for culpa aquiliana.

In order that an employer may be held subsidiarilyliable for the employeeÊs civil liability in the criminalaction, it should be shown (1) that the employer, etc. isengaged in any kind of industry, (2) that the employeecommitted the offense in the discharge of his duties and (3)that he is insolvent (Basa Marketing Corp. v. Bolinao, 117SCRA 156). The subsidiary liability of the employer,however, arises only after conviction of the employee in thecriminal action. All these requisites present, the employerbecomes ipso facto subsidiarily liable upon the employeeÊsconviction and upon proof of the latterÊs insolvency.Needless to say, the case at bar satisfies all theserequirements.

Furthermore, we are not convinced that the owner-operator has been deprived of his day in court, because thecase before us is not one wherein the operator is sued for aprimary liability under the Civil Code but one in which thesubsidiary civil liability incident to and dependent upon hisemployeeÊs criminal negligence is sought to be enforced.Considering the subsidiary liability imposed upon theemployer by law, he is in substance and in effect a party tothe criminal case. Ergo, the employerÊs subsidiary liabilitymay be determined and enforced in the criminal case aspart of the execution proceedings against the employee.This Court held in the earlier case of Pajarito v. Seneris,supra, that „The proceeding for the enforcement of thesubsidiary civil liability may be considered as part of theproceeding for the execution of the judgment. A case inwhich an execution has been issued is regarded as stillpending so that all proceedings on the execution areproceedings in the suit. There is no question that the courtwhich rendered the judgment has a general supervisorycontrol over its process of execution, and this power carrieswith it the right to determine every question of fact andlaw which may be involved in the execution.‰

The argument that the owner-operator cannot be held



subsidiarily liable because the matter of subsidiary liabilitywas not raised on appeal and in like manner, the appellatecourtÊs decision made no mention of such subsidiaryliability is of no moment. As already discussed, the filing ofa separate complaint against the operator for recovery ofsubsidiary liability is

8


Carpio vs. Doroja

not necessary since his liability is clear from the decisionagainst the accused. Such being the case, it is notindispensable for the question of subsidiary liability to bepassed upon by the appellate court. Such subsidiaryliability is already implied from the appellate courtÊsdecision. In the recent case of Vda. de Paman v. Señeris,115 SCRA 709, this Court reiterated the followingpronouncement: „A judgment of conviction sentencing adefendant employer to pay an indemnity in the absence ofany collusion between the defendant and the offendedparty, is conclusive upon the employer in an action for theenforcement of the latterÊs subsidiary liability not only withregard to the civil liability, but also with regard to itsamount.‰ This being the case, this Court stated in Rotea v.Halili, 109 Phil. 495, that the court has no other functionthan to render decision based upon the indemnity awardedin the criminal case and has no power to amend or modifyit even if in its opinion an error has been committed in thedecision. A separate and independent action is, therefore,unnecessary and would only unduly prolong the agony ofthe heirs of the victim.‰

Finally, the position taken by the respondent appellatecourt that to grant the motion for subsidiary writ ofexecution would in effect be to amend its decision whichhas already become final and executory cannot besustained. Compelling the owner-operator to pay on thebasis of his subsidiary liability does not constitute anamendment of the judgment because in an action underArt. 103 of the Revised Penal Code, once all the requisitesas earlier discussed are met, the employer becomes ipso



facto subsidiarily liable, without need of a separate action.Such being the case, the subsidiary liability can be enforcedin the same case where the award was given, and this doesnot constitute an act of amending the decision. It becomesincumbent upon the court to grant a motion for subsidiarywrit of execution (but only after the employer has beenheard), upon conviction of the employee and after executionis returned unsatisfied due to the employeeÊs insolvency.

WHEREFORE, the order of respondent courtdisallowing the motion for subsidiary writ of execution ishereby SET ASIDE. The Court a quo is directed to hearand decide in the same proceeding the subsidiary liabilityof the alleged owner-operator of the passenger jitney. Costsagainst private respondent.

9

VOL. 180, DECEMBER 6, 1989 9

Perez vs. Sandiganbayan

SO ORDERED.

Padilla, Sarmiento and Regalado, JJ., concur. Melencio-Herrera, J., On leave.

Order set aside.

Note.·A prevailing party is entitled as a matter ofright to a writ of execution, and its issuance is a ministerialduty compellable by mandamus. (Abbott vs. NLRC, 145SCRA 206.)

··o0o··



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Bantoto vs. Bobis

No. L-18966. November 22, 1966.

VICENTE BANTOTO, ET AL., plaintiffs-appellees, vs.

SALVADOR BOBIS, ET AL., defendants. CRISPINVALLEJO, defendant-appellant.

Civil liability; Employer's subsidiary civil liability for crimes

committed by his servants or employees is not predicated upon the

latter's insolvency; When insolvency is required.· The master'sliability, under the Revised Penal Code, for the crimes committed byhis servants and employees in the discharge of their duties, is notpredicated upon the insolvency of the latter. Such insolvency isrequired only when the liability of the master is being madeeffective by execution levy, but not for the rendition of judgmentagainst the master. The subsidiary character of the employer'sresponsibility merely imports that the latter's property is not to beseized without first exhausting that of the servant. And by analogyto a regular guarantor, the master may not demand priorexhaustion of the servant's properties if he can not "point out to thecreditor available property of the debtor within Philippine territory,sufficient to cover the amount of the debt" (Cf. Civil Code, Article1060). This rule is logical, for as between the offended party (ascreditor) and the culprit's master or employer, it is the latter who isin a better position to determine the resources and solvency of theservant or employee. Consequently, in a complaint against theemployer to enforce his subsidiary civil liability, it is not necessaryto allege that the employee is insolvent.

Same; Conclusiveness of judgment sentencing servant or

employee to pay indemnity; Admissibility of writ of execution and

sheriff's return.·The writ of execution and the sheriff's return inthe criminal case against the employee are material and admissible



when the issuance of a writ of execution of the appealed judgment isdemanded. It is well to note that the Supreme Court has ruled that,in the absence of collusion, the judgment convicting and sentencingthe servant to pay indemnity is conclusive in an action to enforcethe subsidiary liability of the master or employer (Martinez vs,

Barredo, 81 Phil. 1).

691

VOL. 18, NOVEMBER 22, 1966 691

Bantoto vs. Bobis

Same; When award of exemplary damages is improper.· Wherethe case was predicated upon the sentence of conviction in thecriminal case against the driver, the award of exemplary damageswould be improper if no such damages were imposed on the driver.The master, as a person subsidiarily liable, can not incur greatercivil liability than his convicted employee, any more than aguarantor can be held responsible for more than the principaldebtor (Cf. New Civil Code, Article 2064).

Same; Attorney's fees; When award of attorney's fees is proper.

·Attorney's fees were properly adjudged against the employer inthe action for the enforcement of his subsidiary civil liability. Theaward could be doubled if the trial court's award contemplated onlythe lawyer's services in the trial court.

Same; Award in separate civil action is allowed.·Article 2208,paragraph 8, of the Civil Code authorizes the award of counsel fees"in a separate civil action to recover the civil liability arising from acrime".

APPEAL from a decision of the Court of First Instance ofOccidental Negros.

The facts are stated in the, opinion of the Court. Arturo M. Glaraga for plaintiffs-appellees. Casiano P. Laquihon "for defendant-appellant.

REYES, J.B.L., J.:

Crispin Vallejo appeals from a decision rendered in CivilCase No. 5422 of the Court of First Instance of OccidentalNegros, sentencing him to pay to Vicente Bantoto and



Florita Lanceta, parents of the late Damiana Bantoto, civilindemnity in the sum of P3,000.00, plus P1,000.00exemplary damages and the further sum of P500.00attorneys' fees, without pronouncement as to costs.

The basic facts are not controverted. Appellant CrispinVallejo was the registered owner of a "jeepney" named"Jovil 11", with plate TPU-20948, that was operated by himin Bacolod City through driver Salvador Bobis. On 24October 1948, through the driver's negligence, the"jeepney" struck a 3-year old girl, Damiana Bantoto, adaughter of appellees, inflicting serious injuries that led toher death a few days later. The City Fiscal of Bacolod filedan information charging Bobis with homicide throughreckless imprudence, to which Bobis pleaded guilty. Hewas, accordingly, sentenced to :& months and :& day of

692


Bantoto vs. Bobis

arresto mayor and to indemnify the deceased girl's heirs(appellees herein) in the sum of P3,000.00.

By amended complaint of 8, October 1959, appelleesVicente Bantoto and Florita Lanceta, for themselves andtheir other children, instituted the present action againstSalvador Bobis, Juan Maceda (later absolved) and CrispinVallejo in the court of first instance, pleading the foregoingfacts and seeking to have the three defendants declaredsolidarily responsible for damages, consisting of the civilindemnity required of the driver Bobis in the judgment ofconviction, plus moral and exemplary damages andattorneys' fees and costs,

Vallejo moved to dismiss on the ground of failure to statea cause of action against him, for the reason that theamended complaint did not aver that the driver, Bobis, wasinsolvent. The court overruled the motion to dismiss, andon 20 February 1960 Vallejo answered the complaint,setting up denials and affirmative defenses, specificallyaverring that the brothers and sisters of the deceased werenot real parties in interest; that the complaint stated nocause of action against Vallejo; that his liability was only



subsidiary; that the action was barred by; prior judgment;and that the liability had been satisfied. Bobis wasdeclared in default,

At the trial, the court of origin (overruling Vallejo'sobjections) admitted as Exhibit "A" for plaintiffs the writ ofexecution against the driver, Salvador Bobis, issued in thecriminal case, and as Exhibit "B" the sheriff's return nulla

bona. Vallejo presented no evidence. Wherefore, the courtabsolved defendant Maceda and rendered judgment againstCrispin Vallejo in the terms described at the start of thisopinion.

Vallejo appealed directly to this Supreme Court,assigning three errors:

"I · The trial Court erred in not dismissing thecomplaint for lack of a cause of action.

II · The trial Court erred in admitting as evidenceExhibits "A" and "B" of the appellees,

III · The trial Court erred in condemning thedefendants-ppellant to pay to the appellees the sumof P3,000.00 as indemnity, F. 1,000.00 as moraldamages, P1,000.00 as exemplary damages, andP500.00 as attorney's fee."

693

VOL. 18, NOVEMBER 22, 1966 693

Bantoto vs, Bobis

The first alleged error, predicated upon the lack ofallegation in the complaint that driver Bobis was insolvent,is without merit. The master's liability, under the RevisedPenal Code, for the crimes committed by his servants andemployees in the discharge of their duties, is not predicatedupon the insolvency of the latter. Article 103 of the PenalCode prescribes that:

"ART. 103. Subsidiary civil liability of other persons.·Thesubsidiary liability established in the next preceding article shallalso apply to employees, teachers, persons, and corporationsengaged in any kind of industry for felonies committed by their



servants, pupils, workmen, apprentices, or employees in thedischarge of their duties."

The insolvency of the servant or employee is nowherementioned in said article as a condition precedent. In truth,such insolvency is required only when the liability of themaster is being made effective by execution levy, but not forthe rendition of judgment against the master. Thesubsidiary character of the employer's responsibilitymerely imports that the latter's property is not be seizedwithout first exhausting that of the servant. And byanalogy to a regular guarantor (who is the prototype. ofpersons subsidiarily responsible), the master may notdemand prior exhaustion of the servant's (principalobligor's) properties if he can not "point out to the creditoravailable "property of the debtor within Philippineterritory, sufficient to cover the amount of the debt" (Cf.

Civil Code, Article 1060). This rule is' logical, for asbetween the offended party (as creditor) and the culprit'smaster or employer, it is the latter who is in a betterposition to determine the resources and solvency of theservant or employee.

Appellant invokes the following passage in our decisionin Marquez vs. Castillo, 68 Phil. 571:

"The subsidiary liability of the master, according to the provisions ofArticle 103 of the Revised Penal Code, arises and takes place onlywhen the servant, subordinate, or employee commits a punishablecriminal act while in the actual performance of his ordinary dutiesand service, and he is insolvent thereby rendering him incapable of

satisfying by himself his own civil liability"

The underlined passage is, however, mere obiter because

694


Bantoto vs. Bobis

the part immediately preceding the quotation shows thatthe ratio decidendi of the case was that the accidentinvolved, unlike in the case at bar, did not occur in the



performance of the driver's assigned duties.

"It should be noted that in said stipulation, there is a provisionappearing in paragraph 3, thereof, which reads as follows:

'That the defendant Bernardo Castillo was not riding in the carat the time of the accident, and he did not know that his car wastaken by -the chauffeur Mariano Capulong.'

"This fact decides the question because it clearly shows that theaccident did not occur in the course of the performance of the dutiesor service for which said chauffeur Mariano Capulong had beenhired. The defendant did not hire him to do as he pleased, using thedefendant's car as if it were his own. His duties and service wereconfined to driving his master's car as the latter ordered him, andthe accident did not take place under said circumstances."

As to the second error assigned, the same is, non-prejudicial, if at all committed, Supposing, in gratia,

argumenti, that Exhibits ."A" and "B", the execution andthe sheriff's return, in the criminal case were notadmissible at the trial of the case against the master, theywould certainly be material and admissible when issuanceof a writ of execution of the appealed judgment isdemanded. It is well to move here that this, Court hasruled that in the absence of collusion the judgmentconvicting and sentencing the servant to pay indemnity isconclusive in an action to enforce the subsidiary liability ofthe master or employer (Martinez vs. Barredo, 81 Phil. 1).Anyway, since Bobis, the driver, was also a defendant, thewrit of execution issued in the criminal case to enforce thecivil indemnity, and its return without satisfaction, are notirrelevant evidence in the action against him and hisemployer.

Anent the third error, we agree with appellant, that, asthe case was predicated upon the sentence of conviction inthe criminal case, the award of exemplary damages wasimproper. No such damages were imposed on the driver,and the master, as person subsidiarily liable, can not incurgreater civil liability than his convicted employee, anymore than a guarantor can be held responsible for morethan the principal debtor (Cf. Civil Code, Article 2064).

695



VOL. 18, NOVEMBER 22, 1966 695

Bantoto vs. Bobis

But we do not agree that the award of attorney's feesshould be disallowed. Appellant had reason to know thathis driver could not pay the P3,000.00 indemnity imposedin the criminal case, because if he could, or if he had moneyor leviable property worth that much, Bobis would beoperating his own jeepney instead of another's. In fact,Article 2208, paragraph 9, authorizes the award ofcounsel's fees "in a separate civil action to recover the civilliability arising from a crime."

As in awarding only P500.00 attorney's fees the courtbelow could envisage only the services of counsel up to thedate of its judgment, and it could not know then that thedecision would be appealed, we are of the opinion thatcounsel fees should now be at least doubled.

For the foregoing reasons, the decision under appeal ismodified by eliminating the award of P1,000.00 exemplarydamages and doubling the award for counsel fees, with theresult that appellant shall pay the indemnity of P3,000.00,with interest at 6% from the filing of the complaint, plus ?1,000.00 attorney's fees,. In all other respects, said decisionis affirmed. No costs.

Concepcion, C.J., Barrera, Dizon, Regala,

Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro,

JJ., concur.

Decision modified.

A N N O T A T I O N

Employer's subsidiary civil liability.·The employee'sinsolvency may be shown by the circumstance that the writof execution issued against him was returned unsatisfied(Manalo vs. Robles Transportation Co., Inc., 99 Phil. 729;Quiambao vs. Mora, L-12690, May 25, 1960) or by thecertificate of the Director of Prisons that the employee isserving, or has served, subsidiary imprisonment by reasonof insolvency and by the certificate of the Sheriff that theemployee has not satisfied his pecuniary liability and that



no properties were "f ound registered in his name(Nagrampa vs. Mulvaney, McMillan & Co., Inc., 97 Phil.724; Martinez vs. Barredo, 81 Phil. 1).

The subsidiary civil liability of the employer is coexten-

696


Tse Viw vs. Republic

sive with that of the judgment rendered against theemployee in the criminal case (Gonzales vs. Halili, 104Phil. 1059). If the employer's liability cannot bediminished, neither can it be increased (Arambulo vs.

Manila Electric Company, 55 Phil. 75).The rule in Bantoto vs. Bobis, supra (the case under

annotation), that the employer's subsidiary civil liabilitydoes not include exemplary damages was announced inRotea vs. Halili, 60 O.G. 7549, where it was held:

"The rule is that exemplary damages are imposed primarily uponthe wrongdoer as a deterrent in the commission of similar acts inthe future. Such punitive damages cannot be applied to his masteror employer except only to the extent of his participation or ratiffication of the act because they are penal in character. Moreover, inthis jurisdiction, exemplary damages may only be imposed whenthe crime is committed with one or more aggravating circumstances(Art. 2230, New Civil Code),

"According to the rule adopted by many courts, a principal ormaster can be liable 'for exemplary damages or punitive damagesbased upon the wrongful act of his agent or servant only where heparticipated in the doing of such wrongful act or has previouslyauthorized or subsequently ratified it with full knowledge of thefacts. Reasons given for this rule are that, since such damages arepenal in character, the motive authorizing their infliction will not beimputed by presumption to the principal when the act is committedby an agent or servant, and that since they are awarded, not by way01 compensation, but as a punishment to the offender and as awarning to others, they can only be awarded against one who hasparticipated in the offense, and the principal therefore cannot beheld liable for them merely by reason of wanton, oppressive, ormalicious intent on the part of the agent." (15 Am. Jur. 730).



As to attorney's fees see annotation under Firestone Tire &

Rubber Company of the Philippines vs. Ines Chaves :& Co.,

Ltd., L- 17106, Oct. 19, 1966, ante.

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VOL. 255, MARCH 29, 1996 397

Yonaha vs. Court of Appeals

G.R. No. 112346. March 29, 1996.*

EVELYN YONAHA, petitioner, vs. HON. COURT OFAPPEALS and HEIRS OF HECTOR CAÑETE,respondents.

Criminal Law; Damages; Civil Liability; Employer-EmployeeRelationship; Due Process; While the Supreme Court has sanctionedthe enforcement of the employerÊs subsidiary liability in the samecriminal proceedings in which the employee is adjudged guilty,execution against the employer must not issue as just a matter ofcourse·it behooves the court, as a measure of due process to theemployer, to determine and resolve a priori, in a hearing set for thepurpose, the legal applicability and propriety of the employerÊsliability.·The statutory basis for an employerÊs subsidiary liabilityis found in Article 103 of the Revised Penal Code. This Court hassince sanctioned the enforcement of this subsidiary liability in thesame criminal proceedings in which the employee is adjudgedguilty, on the thesis that it really is a part of, and merely anincident in, the execution process of the judgment. But, executionagainst the employer must not issue as just a matter of course, andit behooves the court, as a measure of due process to the employer,to determine and resolve a priori, in a hearing set for the purpose,the legal applicability and propriety of the employerÊs liability. Therequirement is mandatory even when it appears prima facie thatexecution against the convicted employee cannot be satisfied. Thecourt must convince itself that the convicted employee is in truth inthe employ of the employer; that the latter is engaged in anindustry of some kind; that the employee has committed the crimeto which civil liability attaches while in the performance of hisduties as such; and that execution against the employee isunsuccessful by reason of insolvency.

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Same; Same; Same; Same; Same; The employer must be givenhis full day in court.·The assumption that, since petitioner in thiscase did not aver any exculpatory facts in her „motion to stay andrecall,‰ as well as in her motion for reconsideration, which couldsave her from liability, a hearing would be a futile and a sheerrigmarole is unacceptable. The employer must be given his full dayin court.

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* FIRST DIVISION.

398



Same; Same; Same; Same; Same; Requisites for the enforcementof subsidiary liability of an employer under Article 103 of theRevised Penal Code.·To repeat, the subsidiary liability of anemployer under Article 103 of the Revised Penal Code requires: (a)the existence of an employer-employee relationship; (b) that theemployer is engaged in some kind of industry; (c) that the employeeis adjudged guilty of the wrongful act and found to have committedthe offense in the discharge of his duties (not necessarily anyoffense he commits „while‰ in the discharge of such duties); and (d)that said employee is insolvent. The judgment of conviction of theemployee, of course, concludes the employer and the subsidiaryliability may be enforced in the same criminal case, but to afford theemployer due process, the court should hear and decide thatliability on the basis of the conditions required therefor by law.

PETITION for review of a decision of the Court of Appeals.

The facts are stated in the opinion of the Court. Jose Ray T. Bael and Cornelio C. Mercado for

petitioner. Moises A. Casul, Jr. for private respondent.

VITUG, J.:



From the decision of the Court of Appeals dismissing forlack of merit the petition for certiorari, with prayer forpreliminary injunction, filed by Evelyn Yonaha against anorder, dated 29 May 1992, of the Regional Trial Court

1

which had granted private respondentsÊ motion for theissuance of a writ of subsidiary execution, the instantappeal was taken.

In Criminal Case No. 01106-L, Elmer Ouano wascharged with the crime of „Reckless Imprudence ResultingIn Homicide‰ in an information which averred·

„That on April 14, 1990, at or about 11:45 A.M., in Basak, LapulapuCity, Philippines, within the jurisdiction of this Honorable Court,the aforenamed accused, while driving a Toyota Tamaraw sportingPlate No. GCX-237 duly registered in the name of Raul

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1 RTC, 7th Judicial Region, Branch 27, Lapu-Lapu City, Hon. Teodoro K.

Risos, Presiding.

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VOL. 255, MARCH 29, 1996 399


Cabahug and owned by EK SEA Products, did then and thereunlawfully and feloniously maneuver and operate it in a negligentand reckless manner, without taking the necessary precaution toavoid injuries to person and damage to property, as a result thereofthe motor vehicle he was then driving bumped and hit HectorCañete, which caused the latterÊs instantaneous death, due to themultiple severe traumatic injuries at different parts of his body.‰

2

When arraigned, the accused pleaded „guilty‰ and, on 09March 1992, the trial court pronounced its judgment·

„Finding therefore the accused guilty beyond reasonable doubt ofthe offense charged against him and taking into account themitigating circumstances of voluntary surrender and plea of guiltywhich the prosecuting fiscal readily accepted, the Court herebysentences the accused to suffer and undergo an imprisonment of 1year and 1 day to 1 year and 8 months and to pay the heirs of the





victim the sum of P50,000.00 for the death of the victim; P30,000.00for actual damages incurred in connection with the burial and thenightly prayer of the deceased victim and P10,000.00 as attorneyÊsfees.‰

3

On 27 April 1992, a writ of execution was issued for thesatisfaction of the monetary award. In his Return ofService, dated 07 May 1992, the MTCC Deputy City Sheriffstated that he had served the writ on accused Elmer Ouanobut that the latter had manifested his inability to pay themoney obligation.

Forthwith, private respondents presented a „motion forsubsidiary execution‰ with neither a notice of hearing nornotice to petitioner. Acting on the motion, nevertheless, thetrial court issued an order, dated 29 May 1992, directingthe issuance of a writ of subsidiary execution. The sheriffwent to petitionerÊs residence to enforce the writ, and itwas then, allegedly for the first time, that petitioner wasinformed of OuanoÊs conviction. Petitioner filed a motion tostay and to recall the subsidiary writ of executionprincipally anchored on

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2 Rollo, pp. 22-23.3 Rollo, pp. 29-30.

400



the lack of prior notice to her and on the fact that theemployerÊs liability had yet to be established. Privaterespondents opposed the motion.

On 24 August 1992, the trial court denied petitionerÊsmotion. On 23 September 1992, petitionerÊs plea forreconsideration of the denial was likewise rejected.

Petitioner promptly elevated the matter to the Court ofAppeals (CA-GR SP No. 29116) for review. The appellatecourt initially restrained the implementation of theassailed orders and issued a writ of preliminary injunction




upon the filing of a P10,000.00 bond. Ultimately, however,the appellate court, in its decision of 28 September 1993,dismissed the petition for lack of merit and thereby liftedthe writ of preliminary injunction. The Court of Appealsratiocinated:

„We are not unmindful of the ruling in the aforecited case of LuciaPajarito vs. Señeris, supra.·that enforcement of the secondary orsubsidiary liability of employer maybe done by motion in the samecriminal case, a recourse which presupposes a hearing. But evenassuming that issuance of writ of subsidiary execution requiresnotice and hearing, we believe a hearing in the present case wouldbe sheer rigmarole, an unnecessary formality, because, as employer,petitioner became subsidiarily liable upon the conviction of heraccused driver, Elmer Ouano, and proof of the latterÊs insolvency.And if she had any defense to free herself from such subsidiaryliability, she could have ventilated and substantiated the same inconnection with her (petitionerÊs) motion to stay and recall the writof subsidiary execution in question. But from her said motion, it canbe gleaned that except for the protestation of violation of dueprocess, and absence of notice to her of the motion for issuance of awrit of subsidiary execution, petitioner intimated no defense whichcould absolve her of subsidiary liability under the premises. Then,too, after the denial of her motion to stay and recall subject writ,petitioner moved for reconsideration but in her motion forreconsideration, she averred no exculpatory facts which could saveher from subsidiary liability, as employer of the convicted ElmerOuano.‰

4

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4 Rollo, p. 27.

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VOL. 255, MARCH 29, 1996 401


In the instant appeal, petitioner additionally reminds theCourt that OuanoÊs conviction was not the result of afinding of proof beyond reasonable doubt but from hisspontaneous plea of guilt.




We find merit in the petition.The statutory basis for an employerÊs subsidiary liability

is found in Article 103 of the Revised Penal Code.5 This

Court has since sanctioned the enforcement of thissubsidiary liability in the same criminal proceedings inwhich the employee is adjudged guilty,

6 on the thesis that it

really is a part of, and merely an incident in, the executionprocess of the judgment. But, execution against theemployer must not issue as just a matter of course, and itbehooves the court, as a measure of due process to theemployer, to determine and resolve a priori, in a hearingset for the purpose, the legal applicability and propriety ofthe employerÊs liability. The requirement is mandatoryeven when it appears prima facie that execution againstthe convicted employee cannot be satisfied. The court mustconvince itself that the convicted employee is in truth inthe employ of the employer; that the latter is engaged in anindustry of some kind; that the employee has committedthe crime to which civil liability attaches while in theperformance of his duties as such; and that executionagainst the employee is unsuccessful by reason ofinsolvency.

7

The assumption that, since petitioner in this case didnot aver any exculpatory facts in her „motion to stay andrecall,‰ as well as in her motion for reconsideration, whichcould save her from liability, a hearing would be a futileand a sheer rigmarole is unacceptable. The employer mustbe given his

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5 ART. 103. Subsidiary civil liability of other persons.·The subsidiary

liability established in the next preceding article shall also apply to

employers, teachers, persons, and corporations engaged in any kind of

industry for felonies committed by their servants, pupils, workmen,

apprentices, or employees in the discharge of their duties.6 Pajarito vs. Señeris, 87 SCRA 275.7 Ozoa vs. Vda. de Madula, 156 SCRA 779.

402








full day in court.To repeat, the subsidiary liability of an employer under

Article 103 of the Revised Penal Code requires: (a) theexistence of an employer-employee relationship; (b) thatthe employer is engaged in some kind of industry; (c) thatthe employee is adjudged guilty of the wrongful act andfound to have committed the offense in the discharge of hisduties (not necessarily any offense he commits „while‰ inthe discharge of such duties); and (d) that said employee isinsolvent. The judgment of conviction of the employee, ofcourse, concludes the employer

8 and the subsidiary liability

may be enforced in the same criminal case, but to affordthe employer due process, the court should hear and decidethat liability on the basis of the conditions requiredtherefor by law.

9

WHEREFORE, finding the order, dated 29 May 1992, aswell as the order of 24 August 1992 to have beenimprovidently issued, said orders are hereby SET ASIDE.Petitioner shall be given the right to a hearing on themotion for the issuance of a writ of subsidiary executionfiled by private respondents, and the case is REMANDEDto the trial court for further proceedings conformably withour foregoing opinion. No costs.

Padilla (Chairman), Bellosillo, Kapunan andHermosisima, Jr., JJ., concur.

Orders set aside, case remanded to court a quo forfurther proceeding.

Notes.·Where no allegations were made as to whetheror not the company took the steps necessary to determineor ascertain the driving proficiency and history of itsemployee to whom it gave full and unlimited use of acompany car, said company, based on the principle of bonuspater familias, ought to be jointly and severally liable withthe former for the injuries caused to third persons.(Valenzuela vs. Court of

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8 See Ozoa vs. Vda. de Madula, ibid.9 See Vda. De Paman vs. Señeris, 115 SCRA 709.

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VOL. 255, MARCH 29, 1996 403

People vs. Cartuano, Jr.

Appeals, 253 SCRA 303 [1996])The rules on extraordinary responsibility of common

carriers remain basically unchanged even when thecontract is breached by tort although noncontradictoryprinciples on quasi-delict may then be assimilated as alsoforming part of the governing law. (Sabena Belgian WorldAirlines vs. Court of Appeals, 255 SCRA 38 [1996])

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