FIRST DIVISIONG.R. No. 120961 October 17, 1996DISTILLERIA WASHINGTON, INC. or WASHINGTON DISTILLERY, INC., vs.THE HONORABLE COURT OF APPEALS and LA TONDEA DISTILLERS, INC., VITUG, J:La Tondea Distillers, Inc. ("LTDI") instituted on 02 November 1987 with the trial court for manual delivery with damages against Distilleria Washington ("Washington"). LTDI, under a claim of ownership, sought to seize from Distilleria Washington 18,157 empty "350 c.c. white flint bottles" bearing the blown-in marks of "La Tondea Inc." and "Ginebra San Miguel." The court issued an order of replevin for the seizure of the empty gin bottles from Washington. These bottles, it was averred, were being used by Washington for its own "Gin Seven" products without the consent of LTDI.LTDI asserted that, being the owner and registrant of the bottles, it was entitled to the protection so extended by Republic Act ("R.A.") No. 623, as amended, notwithstanding its sale of the Ginebra San Miguel gin product contained in said bottles.Washington countered that R.A. No. 623 should not apply to gin, an alcoholic beverage which is unlike that of "soda water, mineral or aerated water, ciders, milks, cream, or other lawful beverages" mentioned in the law, and that, in any case, ownership of the bottles should be held as transferred to the buyers upon the sale of the gin and containers at a single price.After hearing the parties, the trial court ruled against LTDI, dismissing its complaint and ordering it to return to Washington the empty bottles seized by virtue of the writ for the Seizure of Personal Property issued by this Court and in the event of failure to return said empty bottles, to indemnify defendant in the amount of P18,157 representing the value of the bottles.LTDI appealed the decision to the Court of Appeals. The appellate court reversed the court a quo and ruled against Washington that LTDI, being the owner, is authorized to retain in its possession the 18,157 bottles registered in its name delivered to it by the sheriff following their seizure from the appellee pursuant to the writ of replevin issued by the trial court on

Washington is now before this Court assailing the reversal of the trial court's decision. Washington points out that it is the lawful owner of the empty bottles involved in the petition and that liquor products are not covered by RA No. 623.

WON the petitioner has the right to possess the bottles containing the Gin sold by the LTDI.

No. Notwithstanding the fact that the ownership of LTDI pertains only to its trademark, R.A. No. 623 extends trademark protection in the use of containers duly registered with the Philippine Patent Office. LTDI does not own the empty bottles, but only the trademark over it, because the sale of the bottles to the petitioner transferred the ownership of the same to the latter. However, because of RA 623, the mere use of registered bottles or containers without the written consent of the manufacturer is prohibited.R.A. No. 623 extends trademark protection in the use of containers duly registered with the Philippine Patent Office. The pertinent provisions of R.A. 623, as amended, so reads:Sec. 1. Persons engaged or licensed to engage in the manufacture, bottling, or selling of soda water, mineral or aerated waters, cider, milk, cream or other lawful beverages in bottles, boxes, casks, kegs, or barrels, and other similar containers, or in the manufacture, compressing or selling of gases such as oxygen, acetylene, nitrogen, carbon dioxide, ammonia, hydrogen, chloride, helium, sulphur dioxide, butane, propane, freon, methyl chloride or similar gases contained in steel cylinders, tanks, flasks, accumulators or similar containers, with their names or the names of their principals or products, or other marks of ownership stamped or marked thereon, may register with the Philippine Patent Office a description of the names or marks, and the purpose for which the containers so marked are used by them, under the same conditions, rules, and regulations, made applicable by law or regulation to the issuance of trademarks.Sec. 2. It shall be unlawful for any person, without the written consent of the manufacturer, bottler, or seller, who has successfully registered the marks of ownership in accordance with the provisions of the next preceding section, to fill such bottles, boxes, kegs, barrels, steel cylinders, tanks, flasks, accumulators, or other similar containers so marked or stamped, for the purpose of sale, or to sell, dispose of, buy or traffic in, or wantonly destroy the same, whether filled or not to use the same for drinking vessels or glasses or drain pipes, foundation pipes, for any other purpose than that registered by the manufacturer, bottler or seller. Any violation of this section shall be punished by a fine of not more than one thousand pesos or imprisonment of not more than one year or both.Sec. 3. The use by any person other than the registered manufacturer, bottler or seller, without written permission of the latter of any such bottle, cask, barrel, keg, box, steel cylinders, tanks, flask, accumulators, or other similar containers, or the possession thereof without written permission of the manufacturer, by any junk dealer or dealer in casks, barrels, kegs, boxes, steel cylinders, tanks, flasks, accumulators or other similar containers, the same being duly marked or stamped and registered as herein provided, shall give rise to a prima facie presumption that such use or possession is unlawful.As the outset, the Court must state that it sees no cogent reason for either departing from or changing the basic rule it laid down in Cagayan Valley Enterprises, Inc., vs. Court of Appeals. The Court has there held:The above-quoted provisions grant protection to a qualified manufacturer who successfully registered with the Philippine Patent Office its duly stamped or marked bottles, boxes, casks and other similar containers. The mere use of registered bottles or containers without the written consent of the manufacturer is prohibited, the only exceptions being when they are used as containers for "sisi," "bagoong," "patis" and similar native products.It is an admitted fact that herein petitioner Cagayan buys from junk dealers and retailers bottles which bear the marks or names "La Tondea, Inc." and "Ginebra San Miguel" and uses them as containers for its own liquor products. The contention of Cagayan that the aforementioned bottles without the words "properly of" indicated thereon are not the registered bottles of LTI, since they do not conform with the statement or description in the supporting affidavits attached to the original registration certificate and renewal, is untenable.Republic Act No. 623 which governs the registration of marked bottles and containers merely requires that the bottles, in order to be eligible for registration, must be stamped or marked with the names of the manufacturers or the names of their principals or products, or other marks of ownership. No drawings or labels are required but, instead, two photographs of the container, duly signed by the applicant, showing clearly and legibly the names and other marks of ownership sought to be registered and a bottle showing the name or other mark of ownership, irremovably stamped or marked, shall be submitted.xxx xxx xxxThe claim of petitioner that hard liquor is not included under the term "other lawful beverages" as provided in Section 1 of Republic Act No. 623, as amended by Republic Act No. 5700, is without merit. The title of the law itself, which reads "An Act to Regulate the Use of Duly Stamped or Marked Bottles, Boxes, Casks, Kegs, Barrels and Other Similar Containers" clearly shows the legislative intent to give protection to all marked bottles and containers of all lawful beverages regardless of the nature of their contents. The words "other lawful beverages" is used in its general sense, referring to all beverages not prohibited by law. Beverage is defined as a liquor or liquid for drinking. Hard liquor, although regulated, is not prohibited by law, hence it is within the purview and coverage of Republic Act No. 623, as amended. Given the nature of the action in Cagayan, as well as its factual milieu, the Court indeed hardly has had a choice but to sustain the registrant's right to the injunctive writ against the unauthorized use of its containers. The case before us, however, goes beyond just seeking to have such use stopped but it so takes on even the ownership issue as well. Parenthetically, petitioner is not here being charged with a violation of Section 2 of R.A. No. 623 or of the Trademark Law. The instant suit is one for replevin (manual delivery) where the claimant must be able to show convincingly that he is either the owner or clearly entitled to the possession of the object sought to be recovered. Replevin is a possessory action the gist of which focuses on the right of possession that, in turn, is dependent on a legal basis that, not infrequently, looks to the ownership of the object sought to be replevied.It is to be pointed out that a trademark refers to a word, name, symbol, emblem, sign or device or any combination thereof adopted and used by a merchant to identify, and distinguish from others, his goods of commerce. It is basically an intellectual creation that is susceptible to ownership and, consistently therewith, gives rise to its own elements of jus posidendi, jus utendi, jus fruendi, jus disponendi, and jus abutendi, along with the applicable jus lex, comprising that ownership. The incorporeal right, however, is distinct from the property in the material object subject to it. Ownership in one does not necessarily vest ownership in the other. Thus, the transfer or assignment of the intellectual property will not necessarily constitute a conveyance of the thing it covers, nor would a conveyance of the latter imply the transfer or assignment of the intellectual right.R.A. No. 623 evidently does not disallow the sale or transfer of ownership of the marked bottles or containers. In fact, the contrary is implicit in the law; Sec. 5. No action shall be brought under this Act against any person to whom the registered manufacturer, bottler or seller, has transferred by way of sale, any of the containers herein referred to, but the sale of the beverage contained in the said containers shall not include the sale of the containers unless specifically so provided.Scarcely disputed are certain and specific industry practices in the sale of gin: The manufacturer sells the product in marked containers, through dealers, to the public in supermarkets, grocery shops, retail stores and other sales outlets. The buyer takes the item; he is neither required to return the bottle nor required to make a deposit to assure its return to the seller. He could return the bottle and get a refund. A number of bottles at times find their way to commercial users. It cannot be gainsaid that ownership of the containers does pass on to the consumer albeit subject to the statutory limitation on the use of the registered containers and to the trademark right of the registrant. The statement in Section 5 of R.A. 623 to the effect that the "sale of beverage contained in the said containers shall not include the sale of the containers unless specifically so provided" is not a rule of proscription. It is a rule of construction that, in keeping with the spirit and intent of the law, establishes at best a presumption (of non-conveyance of the container) and which by no means can be taken to be either interdictive or conclusive in character. Upon the other hand, LTDI's sales invoice, stipulating that the "sale does not include the bottles with the blown-in marks of ownership of La Tondea Distillers," cannot affect those who are not privies thereto.While it may be unwarranted then for LTDI to simply seize the empty containers, this Court finds it to be legally absurd, however, to still allow petitioner to recover the possession thereof. The fact of the matter is that R.A. 623, as amended, in affording trademark protection to the registrant, has additionally expressed a prima facie presumption of illegal use by a possessor whenever such use or possession is without the written permission of the registered manufacturer, a provision that is neither arbitrary nor without appropriate rationale. Indeed, the appellate court itself has made a finding of such unauthorized use by petitioner. The Court sees no other logical purpose for petitioner's insistence to keep the bottles, except for such continued use. The practical and feasible alternative is to merely require the payment of just compensation to petitioner for the bottles seized from it by LTDI. Conventional wisdom, along with equity and justice to both parties, dictates it.SC ordered LTDI to pay petitioner just compensation for the seized bottles.

FIRST DIVISIONG.R. No. 120961 October 2, 1997DISTILLERIA WASHINGTON, INC. OR WASHINGTON DISTILLERY, INC.,vs.LA TONDEA DISTILLERS, INC. and THE HONORABLE COURT OF APPEALSKAPUNAN, J.:On October 17, 1996, this Court rendered a decision in the above-entitled case ordering LTDI to pay petitioner just compensation for the seized bottles. Instead however, of remanding the case to the Court of appeals to receive evidence on, and thereafter resolve, the assessment thereof, this Court accepts and accordingly adopts the quantification of P18,157.00 made by the trial court. With the denial of the motion for reconsideration, petitioner sought a second reconsideration with leave of court of our decision raising new issues, to wit:1.01.d. The Supreme Court, in its Decision of October 17, 1996, modified the decision of the Court of Appeals. It held that ownership of the bottles had passed to the consumer, ultimately, to Washington Distillery, Inc.; nonetheless, while ruling that the ownership over the bottles had passed to Washington Distillery, Inc., it held that Washington Distillery, Inc. may not use the bottles because of the "trademark protection to the registrant" (La Tondea Distillers, Inc.). Instead of directing the return of the bottles to Washington Distillery, Inc., the Court ordered La Tondea Distillers, Inc. to pay Washington Distillery, Inc. the amount of P18,157.00.2.00. The decision of the Supreme Court itself therefore raises new issues. As owner of the bottles, should not Washington Distillery, Inc. be given possession of the bottles? Would its use of the bottles violate the "trademark protection of the registrant," La Tondea Distillers, Inc. afforded by RA 623?To recall, LTDI filed before the RTC for the recovery, under its claim of ownership, of possession or replevin against Washington Distillery of 18,157 empty "350 c.c. white flint bottles" bearing the blown-in marks of "La Tondea Inc." and "Ginebra San Miguel," averring that Distilleria Washington was using the bottles for its own "Gin Seven" products without the consent of LTDI in violation of Republic Act 623.The trial court in its decision dismissed the complaint, upholding Distilleria Washington that a purchaser of liquor pays only a single price for the liquor and the bottle and is not required to return the bottle at any time.The Court of Appeals reversed the trial court's decision, ruling that under Republic Act 623, the use of marked bottles by any person other than the manufacturer, bottler or seller, without the latter's written consent, is unlawful. It emphasized that the marks of La Tondea's ownership stamped or blown-in to the bottles are sufficient notice to the public that the bottles are La Tondea's property; hence, Distilleria Washington cannot be considered a purchaser in good faith.In seeking reconsideration of the decision of this Court, petitioner advances, among others, the following arguments:(2) Since the right of ownership over the bottles gives rise, according to the Court's own language, to its own elements of jus posidendi, jus utendi, jus fruendi, jus disponendi, and jus abutendi, along with the applicable jus lex, to allow La Tondea to keep the bottles is to deny Distilleria Washington, the very attributes or elements of its ownership.(5) It is absurd to hold the buyer such as Distilleria Washington, liable for the possession and use of its own bottles without the written consent of La Tondea who is no longer the owner thereof and for which it has received payment in full.(6) To hold the buyer liable under Sections 2 and 3 would grant La Tondea the extraordinary right not only of possession and use of the bottles which it has sold and no longer owns, but also to sell said bottles ad infinitum, thus enriching itself unjustly.(7) It is manifestly unjust and unconscionable that millions of buyers of Ginebra San Miguel, who pay not only for the gin but also for the bottles containing it should run the risk of criminal prosecution by the mere fact of possession of the empty bottles after consuming the liquor.Distilleria Washington's motion raises the novel issue that if the petitioner became the owner over the bottles seized from it by replevin, then it has the right to their possession and use as attributes of ownership, unless their use violates the trademark or incorporeal rights accorded private respondent by R.A. 623 which has not really been established in this case.

WON the ownership over the bottles was transferred to Distilleria Washington.

Yes. The SC acknowledged that there was a valid transfer of the bottles to Distilleria Washington, except that its possession of the bottles without the written consent of La Tondea gives rise to a prima facie presumption of illegal use under R.A. 623.Since replevin as a possessory action is dependent upon ownership, it is relevant to ask: Did La Tondea Distillers, Inc. transfer ownership of its marked bottles or containers when it sold its products in the market? Were the marked bottles or containers part of the products sold to the public?The SC categorically answered the question in the affirmative.In plain terms, therefore, La Tondea not only sold its gin products but also the marked bottles or containers, as well. And when these products were transferred by way of sale, then ownership over the bottles and all its attributes (jus utendi, jus abutendi, just fruendi, jus disponendi) passed to the buyer. It necessarily follows that the transferee has the right to possession of the bottles unless he uses them in violation of the original owner's registered or incorporeal rights. .After practically saying that La Tondea has surrendered ownership and consequently, possession of the marked bottles or container, it is incongruous and, certainly, it does not seem fair and just to still allow La Tondea, citing the prima facie presumption of illegal use under Sec. 3 of R.A. 623., to retain possession of the seized bottles by simply requiring payment of just compensation to petitioner.The pertinent provisions of R.A. 623 are as follows:Sec. 2. It shall be unlawful for any person, without the written consent of the manufacturer, bottler, or seller (emphasis supplied) who has successfully registered the marks of ownership in accordance with the provisions of the next preceding section, to fill such bottles, boxes, kegs, barrels, steel cylinders, tanks, flasks, accumulators, or other similar containers so marked or stamped, for the purpose of sale, or to sell, dispose of, buy or traffic in, or wantonly destroy the same, whether filled or not to use the same for drinking vessels or glasses or drain pipes, foundation pipers, for any other purpose than that registered by the manufacturer, bottler or seller. Any violation of this section shall be punished by a fine of not more than one thousand pesos or imprisonment of not more than one year or both.Sec. 3. The use by any person other than the registered manufacturer, bottler or seller, without written permission of the latter (emphasis supplied) of any such bottle, cask, barrel, keg, box, steel cylinders, tanks, flask, accumulators, or other similar containers, or the possession thereof without written permission of the manufacturer, by any junk dealer or dealer in casks, barrels, keg, boxes, steel cylinders, tanks, flask, accumulators or other similar containers, the same being duly marked or stamped and registered as herein provided, shall give rise to a prima facie presumption that such use or possession is unlawful.xxx xxx xxxSec. 5. No action shall be brought under this Act (emphasis supplied) against any person to whom the registered manufacturer, bottler or seller, has transferred by way of sale, (emphasis supplied) any of the containers herein referred to, but the sale of the beverage contained in the said containers shall not include the sale of the containers unless specifically so provided.In resolving that petitioner is the owner of the bottles, this Court applied Section 5 of R.A. 623; and in withholding possession of the bottles from the petitioner and in concluding that use or possession thereof without the written permission of the registered owner would constitute prima facie presumption of illegal use, this Court invoked Sections 2 and 3 of the same law.A careful reading of Sections 2, 3 and 5 of R.A. 623 would lead to the conclusion that they contemplate situations separate and distinct from each other. Section 2 prohibits any person from using, selling or otherwise disposing of registered containers without the written consent of the registrant. Such rights belong exclusively to the registrant. Under Section 3, mere possession of such registered containers without the written consent of the registrant is prima facie presumed unlawful.It appears and this is the critical point that Sections 2 and 3 apply only when the "filling" up of the bottle or the "use" of the bottle is "without the written permission" of the "registered manufacturer, bottler, or seller," who has registered the marks of "ownership" of the bottles. It is thus implicit that Sections 2 and 3 apply only when the "registered manufacturer, bottler, or seller" retain ownership of the bottles.Upon the other hand, when the bottles have been "transferred by way of sale," Section 5 applies, thereby precluding the institution of any action "under this Act," meaning to say, any action under Sections 2 and 3.The general rule on ownership, therefore, must apply and petitioner be allowed to enjoy all the rights of an owner in regard the bottles in question, to wit: the jus utendi or the right to receive from the thing what it produces; the jus abutendi or the right to consume the thing by its use; the jus disponendi or the power of the owner to alienate, encumber, transform and even destroy the thing owned; and the jus vindicandi or the right to exclude from the possession of the thing owned any other person to whom the owner has not transmitted such thing. What is proscribed is the use of the bottles in infringement of another's trademark or incorporeal rights.Since the Court has found that the bottles have been transferred by way of sale, then La Tondea has relinquished all its proprietary rights over the bottles in favor of Distilleria Washington who has obtained them in due course. Now as owner, it can exercise all attributes of ownership over the bottles. This is the import of the decision that La Tondea had transferred ownership over its marked bottles or containers when it sold its gin products to the public. While others may argue that Section 5 is applicable only to the immediate transferee of the marked bottles or container, this matter is best discussed where the applicability of Sec. 5, R.A. 623 is squarely raised. It must be recalled, however, that this is a case of replevin, not a violation of the "trademark protection of the registrant" under R.A. 623 or of the Trademark Law.A query may be posed: Would use of the bottles constitute a violation of the incorporeal rights of La Tondea Distillers, Inc. over its "marks of ownership" embossed on the bottles? While apparently relevant, it would be improper and premature for this Court to rule on the point because:First, violation of the "marks of ownership" of La Tondea Distillers, Inc. on the bottler has not been put in issue, the parties did not have the opportunity to ventilate their respective positions on the matter. Thus, a ruling would be violative of due process.Second, the question calls for a factual investigation which this Court has generally not taken upon itself to undertake because it is not a trier of facts; andThird, disregarding the above, the facts before this Court do not provide a sufficient basis for a fair and intelligent resolution of the question.Moreover, our decision added that "the Court sees no other insistence to keep the bottles, except for such continued use." This, to our mind, is rather speculative at this point; something which was never touched upon in the proceedings below.We cannot also be oblivious of the fact that if La Tondea's thesis that every possession of the bottles without the requisite written consent is illegal, thousands upon thousands of buyers of Ginebra San Miguel would be exposed to criminal prosecution by the mere fact of possession of the empty bottles after consuming the content.One last point. It may not be amiss to state that La Tondea is a big and established distillery which already has captured a big share of the gin market, estimated to be 90%. Distilleria Washington, on the other hand, together with other small distillers-around 40 in number-concedes that it cannot fight this giant but only asks a share of the market. It cannot afford to manufacture its own bottles and just have to rely on recycled bottles to sell its products. To disallow the use of these recycled products would necessarily deprive it a share of the market which La Tondea seeks to monopolize.We recognize the role of large industry in the growth of our nascent economy. However, small industries likewise play a vital role in economic growth, playing a significant part in the success of such tiger economies as Korea, Taiwan and Thailand. Industries big and small, should adopt symbiotic relationship, not the animosity of Goliath and David. Our holding today merely recognizes that in the country's march toward economic development and independence, it is essential that a balance protecting small industries and large scale businesses be maintained.IN VIEW OF THE FOREGOING, the Court RESOLVED to RECONSIDER its Decision promulgated on October 17, 1996 and render another judgment REVERSING in toto the Decision of the Court of Appeals promulgated on January 11, 1995 and its Resolution of June 23, 1995. The decision of the Regional Trial Court of December 3, 1991 is REINSTATED.

THIRD DIVISIONG.R. No. 146815 April 9, 2003HEIRS OF PEDRO LAURORA and LEONORA LAURORA, petitioners, vs.STERLING TECHNOPARK III and S.P. PROPERTIES, INC., respondents. PANGANIBAN, J.:The Facts"In a Complaint for Forcible Entry with Damages filed before the Fifth Municipal Circuit Trial Court of Carmona and Gen. Mariano Alvarez, plaintiffs, Pedro Laurora and Leonora Laurora [herein petitioners] alleged that they [were] the owners of Lot 1315-G, SWD-40763 of the Yaptinchay Estate located in Carmona, Cavite. Pedro Laurora planted trees and has possessed the land up to the present. On 15 September 1997, [respondents] Sterling Technopark III and S.P. Properties, Inc. through their Engr. Bernie Gatchalian bulldozed and uprooted the trees and plants, and with the use of armed men and by means of threats and intimidation, succeeded in forcibly ejecting [petitioners]. As a result of their dispossession, [petitioners] suffered actual damages in the amount of P3,000,000 and P10,000 as attorneys fees."In their [A]nswer, [respondents] averred that [petitioners were] not the owners of the land because they disposed of it sometime in 1976 as shown by legal documents. On 02 April 1969, the Land Authority issued an order of award in favor of [petitioners], approving the application of Pedro Laurora to buy the subject Lot 1315-G from the government. On 01 March 1974, [petitioners] requested the Department of Agrarian Reform for the transfer of the lot to Juan Manaig. Favorably acted upon, the DAR issued a permit to transfer. On 03 July 1975, Juan Manaig, as transferee and buyer, paid the required amount of P10,643.65 under Official Receipt No. 8304707 to the government as full payment for the transfer of said lot to him. On 26 March 1976, the [petitioners] as sellers executed a Kasulatan ng Paglilipatan ng Lupa transferring the land to Juan Manaig as buyer. On 11 June 1976, the [petitioners] again executed a Deed of Sale wherein they sold Lot 1315-G including all improvements therein, in favor of Juan Manaig. The Deed of Absolute Sale was approved by the Department of Agrarian Reform on 14 June 1976 in DAR Approval of Transfer of Rights signed by DAR Regional Director, Benjamin R. Estrellado. After the approval of the sale from the [petitioners] to Juan Manaig, the latter paid its real estate taxes. The tax declarations of the land in the name of its previous owners, Yaptinchays, were cancelled and transferred in the name of [petitioner] Pedro Laurora as owner-transferee. Thereupon, the heirs of the late JUAN MANAIG sold the land to Golden Mile Resources Development Corporation which likewise sold it to [respondent] S. P. Properties, Inc.After summary proceedings in the MCTC, x x x, a judgment was rendered dismissing the complaint. The case was elevated to the Regional Trial Court. In due course, the said court rendered a decision reversing the MCTC judgment. x x x" The CA reversed the Regional Trial Court (RTC) and reinstated the Order of dismissal issued by the Municipal Circuit Trial Court (MCTC). It held that there was no evidence to support the claim of petitioners to the prior physical possession of the property. The evidence allegedly showed that they had already sold the land with the approval of the Department of Agrarian Reform (DAR). Accordingly, their subsequent entry into and possession of the land constituted plain usurpation, which could not be the source of any right to occupy it. Being planters in bad faith, they had no right to be reimbursed for improvements on the land, in accordance with Article 449 of the New Civil Code. Hence, this Petition.The IssueWON the respondents have a valid and legal right to forcibly eject petitioners from the premises despite their resistance and objection, through armed men and by bulldozing, cutting, and destroying trees and plants planted by petitioners, without court order, to the damage and prejudice of the latter.The Courts RulingNo. The owners of a property have no authority to use force and violence to eject alleged usurpers who were in prior physical possession of it. They must file the appropriate action in court and should not take the law into their own hands.The only issue in forcible entry cases is the physical or material possession of real property -- possession de facto, not possession de jure. Only prior physical possession, not title, is the issue. If ownership is raised in the pleadings, the court may pass upon such question, but only to determine the question of possession. The ownership claim of respondents upon the land is based on the evidence they presented. Their evidence, however, did not squarely address the issue of prior possession. Even if they succeed in proving that they are the owners of the land, the fact remains that they have not alleged or proved that they physically possess it by virtue of such ownership. On the other hand, petitioners prior possession of the land was not disputed by the CA, which merely described it as usurpation.We stress that the issue of ownership in ejectment cases is to be resolved only when it is intimately intertwined with the issue of possession, to such an extent that the question of who had prior possession cannot be determined without ruling on the question of who the owner of the land is. Since respondents claim of ownership is not being made in order to prove prior possession, the ejectment court cannot intrude or dwell upon the issue of ownership.Notwithstanding the actual condition of the title to the property, a person in possession cannot be ejected by force, violence or terror -- not even by the owners. If such illegal manner of ejectment is employed, as it was in the present case, the party who proves prior possession -- in this case, petitioners -- can recover possession even from the owners themselves. Granting arguendo that petitioners illegally entered into and occupied the property in question, respondents had no right to take the law into their own hands and summarily or forcibly eject the occupants therefrom.Verily, even if petitioners were mere usurpers of the land owned by respondents, still they are entitled to remain on it until they are lawfully ejected therefrom. Under appropriate circumstances, respondents may file, other than an ejectment suit, an accion publiciana -- a plenary action intended to recover the better right to possess; or an accion reivindicatoria -- an action to recover ownership of real property.The availment of the aforementioned remedies is the legal alternative to prevent breaches of peace and criminal disorder resulting from the use of force by claimants out to gain possession. The rule of law does not allow the mighty and the privileged to take the law into their own hands to enforce their alleged rights. They should go to court and seek judicial vindication.WHEREFORE, the Petition is GRANTED and the assailed Decision REVERSED and SET ASIDE. FIRST DIVISIONG.R. No. 121939 October 4, 1999SPOUSES ROMAN & AMELITA T. CRUZ and SPOUSES SEVERINO & PRIMITIAVA T. BAUTISTA, petitioners,vs.SPOUSES ALFREDO & MELBA TORRES and THE HONORABLE COURT OF APPEALS, respondents.PARDO, J.:Plaintiff Alfredo Torres is the elder brother of defendants Amelia Torres Cruz and Primitiva Torres Bautista. Their parents are the late Simplicio and Gregoria Castaeda Torres. In 1946, while in his youthful years, Alfredo worked as a mechanic for a US Army ambulance unit stationed at Manila. From his earnings, he purchased by installments from Ortigas Madrigal Co., Inc. a parcel of land in Mandaluyong City. When his American employer left, he was employed as a municipal electrician in Mandaluyong. In 1956, he was issued the land title (T.C.T. No. 42806).Meanwhile, the Torres family were being evicted from their residence. Alfredo allowed them to construct their dwelling on the lot. Eventually, Alfredo's sisters married and left the house, except his sisters Amelia and Primitiva and their spouses.On February 2, 1958, Alfredo and co-plaintiff Melba Baldeo were married. They lived with his parents and defendants-sisters but left after a year because the house was overcrowded and they wanted privacy.Subsequently, Alfredo mortgaged the lot to finance his wife's medical board examinations and internship but redeemed it a year later.In 1962, Alfredo verbally asked his sisters Amelia and Primitiva to vacate the premises because he needed the lot to construct a medical clinic for his wife. Amelia and Primitiva requested an extension and Alfredo agreed.After the death of his father Simplicio in 1970, Alfredo again demanded from his sisters to vacate the place but the latter stubbornly refused and even claimed that their father is the real owner of the lot.Despite the refusal of Amelia and Primitiva to vacate the premises, Alfredo continued paying the realty taxes on the lot. However, after 1982, he stopped paying the taxes for he realized that only his sisters are benefiting from the lot.On September 2, 1987, Alfredo and Melba through counsel, sent Amelia and Primitiva a final letter of demand for them to vacate the lot.The case was referred to the barangay which issued a certificate to file action when the parties failed to settle amicably. Thus, the instant complaint was filed on October 7, 1987 which was ruled in favor of plaintiffs Alfredo and Melba Torres and against defendants spouses Roman and Amelia Cruz and spouses Severino and Primitiva Bautista, ordering the latter and all other persons claiming rights over them to surrender the lot described in TCT No. 42806 to plaintiffs, and remove at their expense the house they are now occupying as well as additional constructions thereon.After due proceeding, the Court of Appeals rendered decision affirming the appealed decision.The case before the Court is an appeal via certiorari from the decision of the Court of Appeals affirming that of the Regional Trial Court ordering petitioners to surrender to respondents the lot described in TCT No. 42806 and remove petitioners' house and other improvements thereon.Petitioners contending that the action is one for unlawful detainer within the jurisdiction of a municipal trial court.

WON the MTC has jurisdiction over accion publiciana cases.

No. The jurisdiction over accion publiciana cases lies within the competence of RTCs.The present action, although termed as one for "reconveyance of real property" is actually one for recovery of the right to posses or accion publiciana. This is an action for recovery of the right to posses and is a plenary action in an ordinary civil proceeding in a regional trial court to determine the better right of possession of realty independently of the title. Accion publiciana or plenaria de posesion is also used to refer to an ejectment suit filed after the expiration of one year from the accrual of the cause of action or from the unlawful withholding of possession of the realty. In such case, the regional trial court has jurisdiction. Here, the parties admit that the subject real property is registered in the name of respondent Alfredo Torres. In the regional trial court what respondent sought was to recover possession of the subject real property alleging that he owned the lot on which he had allowed his father (now deceased) and sisters, petitioners herein, to erect their houses. Since the complaint alleged that respondent Alfredo Torres was the owner of the subject lot and that he merely allowed his father Simplicio Torres and his sisters Amelia and Primitiva to construct their houses thereon, and that since 1972 respondent pleaded to petitioners to remove their houses and such additional constructions thereon as respondent needed the lot for his own use, the action is plainly one for recovery of possession of real property, or accion publiciana, filed on October 7, 1987, more than one year after dispossession or when possession became unlawful, which is within the jurisdiction of a regional trial court. The jurisdiction of the court is determined by the allegations of the complaint, not by the answer nor by the evidence adduced at the trial. Thus, the jurisdiction of the lower court is not affected by the fact that petitioners asserted in their answer to the complaint that the subject lot was truly owned by the estate of their father, or that the last written demand to vacate was given on September 2, 1987, just more than a month prior to the filing of the action. Since initial demand to vacate was made in 1972, petitioners' occupancy became unlawful. Subsequent demands were merely in the nature of reminders or reiterations of the original demand, the one-year period to commence suit is counted from the first demand. When the dispossession lasted beyond one year, the proper action is accion publiciana for recovery of possession of the subject property filed in the regional trial court.IN VIEW WHEREOF, the Court DENIES the petition for review on certiorari and AFFIRMS the decision of the Court of Appeals.

SECOND DIVISIONG.R. No. 158554 May 26, 2005SPS. RONALD HUTCHISON and VALENTINE NAVALLE-HUTCHISON, vs.ENRIQUE M. BUSCAS, respondent.PUNO, J.:The case at bar concerns a boundary dispute of a land in San Juan, Lubao, Pampanga. Petitioner spouses RONALD and VALENTINE HUTCHISON seek the reversal of the Decision of the Court of Appeals in CA-G.R. CV No. 66077, dated February 19, 2003, holding that respondent ENRIQUE M. BUSCAS is entitled to the possession of the disputed area.The spouses purchased from V.A. Development Enterprises, Inc. Lot No. 7216 in San Juan, Lubao, Pampanga. They occupied the land after a title was issued in their names.One Juanita Arrastia, the owner of a lot adjacent to that of petitioner spouses, sold a portion of her land, designated as Lot No. 7047-A, to respondent. The transaction was evidenced by a Quitclaim Deed in favor of respondent. Respondent occupied a portion of his land. However, he failed to register the portion of the lot in his name and title to the property remained in Arrastias name.On January 10, 1995, respondent commissioned geodetic engineer Narciso Manansala to survey his property. Manansala prepared a sketch/subdivision plan of respondents lot. His survey revealed that 6,471 sq. m. thereof was occupied by petitioner spouses.Respondent sent a demand letter to petitioner spouses to vacate the encroached area. Petitioner spouses refused and insisted that it was part of their land. Thus, respondent filed a complaint for unlawful detainer against petitioner spouses before the Municipal Trial Court (MTC) of Lubao, Pampanga. After trial, the MTC ruled in favor of respondent. However, on appeal, the RTC dismissed the case. It ruled that MTC had no jurisdiction over the subject matter as it is a boundary dispute and the proper action should have been an accion reinvindicatoria before the RTC.Consequently, respondent filed a case for accion reinvindicatoria against petitioner spouses with the RTC of Guagua, Pampanga. At the trial, respondent adduced in evidence the Quitclaim Deed to prove his title over the disputed area. He likewise testified on the survey conducted by Manansala. Another geodetic engineer, Angelito H. Nicdao, testified that in the unlawful detainer case earlier filed by the respondent, he was directed by the MTC judge hearing the case to conduct a verification survey of the parties lots. In compliance with the order, he surveyed the two (2) lots using the title of petitioner spouses and the records of the Bureau of Lands. His survey revealed that petitioner spouses encroached on 6,471 sq. m. of the adjacent land claimed by respondent. Respondent offered in evidence the verification plan and report of Nicdao relative to his survey.On the part of petitioner spouses, petitioner Valentine Hutchison testified that she purchased Lot No. 7216 in Lubao, Pampanga, covering an area of 76,207 sq. m., and title thereto was duly issued in her name and that of her spouse.After trial, the RTC dismissed the complaint for lack of merit. It ruled that respondents Quitclaim Deed was not sufficient proof of ownership; that respondent failed to clearly identify the property claimed as it was only marked with an "X" sign, and; that petitioner spouses, as registered owners, are entitled to possession of the disputed lot.Court of Appeals reversed the decision of the trial court. It ruled that respondent is entitled to possession of the disputed area as he was able to prove his claim of ownership and the identity of the subject land.Hence, this appeal where petitioner spouses assign the following errors:ITHE COURT OF APPEALS ERRED IN ITS CONCLUSION THAT THE RESPONDENT SUFFICIENTLY IDENTIFIED THE PROPERTY HE SEEKS TO RECOVER.IITHE COURT OF APPEALS ERRED IN ITS LEGAL CONCLUSION OF LAW THAT THE TITLE OF THE RESPONDENT TO THE SUBJECT PROPERTY IS THE QUITCLAIM DEED OVER A PORTION OF LAND.IIITHE COURT OF APPEALS ERRED IN ITS LEGAL CONCLUSION THAT THE RESPONDENT STRENGTHENED HIS "TITLE" BY THE SURVEY HE CAUSED TO BE PREPARED.IVTHE COURT OF APPEALS ERRED IN ITS CONCLUSION OF LAW THAT THE RESPONDENT PROVED BY A PREPONDERANCE OF EVIDENCE THAT HIS PROPERTY WAS ENCROACHED UPON BY THE PETITIONERS.VTHE COURT OF APPEALS ERRED IN ITS CONCLUSION OF LAW THAT THE RESPONDENT "IS DECLARED OWNER OF THE 6,471 SQUARE-METERS DISPUTED LOT, AND THE PETITIONERS ARE THUS ORDERED TO VACATE THE SAME."Petitioner spouses assert that respondent failed to identify the portion of land he was claiming and prove his ownership thereof. They allege that: (a) respondents identification of his 7,581 sq. m. property with a mere "X" mark on the Annex "A" of the Quirclaim Deed is insufficient as the attached Annex "A" was not presented at the trial, and; (b) the surveys conducted by the geodetic engineers cannot be used to identify respondents lot as they were based on the records of the Bureau of Lands and not on the document of title of respondent.

WON the respondent has the requirement to successfully maintain his action to recover the ownership of a real property..

No. The respondent failed to prove his allegations regarding his ownership over the lot in dispute. In civil cases, the law requires that the party who alleges a fact and substantially asserts the affirmative of the issue has the burden of proving it. Article 434 of the New Civil Code provides that to successfully maintain an action to recover the ownership of a real property, the person who claims a better right to it must prove two (2) things: first, the identity of the land claimed, and; second, his title thereto. In the case at bar, we find that respondent failed to establish these two (2) legal requirements.The first requisite: the identity of the land. In an accion reinvindicatoria, the person who claims that he has a better right to the property must first fix the identity of the land he is claiming by describing the location, area and boundaries thereof. Anent the second requisite, i.e., the claimants title over the disputed area, the rule is that a party can claim a right of ownership only over the parcel of land that was the object of the deed. Respondent sought to prove these legal requisites by anchoring his claim on the Quitclaim Deed over a portion of land which was executed by Arrastia in his favor. However, a cursory reading of the Quitclaim Deed shows that the subject land was described, thus:x x x a portion of that property situated at San Juan, Lubao, Pampanga which portion subject of this sale consists of 7,581 square meters more or less, as indicated particularly in the herein attached plan marked as Annex "A" and made an integral part hereof, and the subject property with an "X" sign.Thus, the Quitclaim Deed specified only the extent of the area sold, i.e., 7,581 sq. m. of Arrastias land. Annex "A" of the Deed, where the entire lot of Arrastia was particularly described and where the specific portion of the property sold to respondent was marked, was not presented by respondent at the trial. As the Deed itself failed to mention the metes and bounds of the land subject of the sale, it cannot be successfully used by respondent to identify the area he was claiming and prove his ownership thereof. Indeed, the presentation of the Annex "A" is essential as what defines a piece of land is not the size mentioned in the instrument but the boundaries thereof which enclose the land and indicate its exact limits. Neither can the surveys of the lots of petitioner spouses and respondent prove the identity of the contested area and respondents ownership thereof. The records show that when geodetic engineers Manansala and Nicdao surveyed the lands, they merely relied on the self-serving statement of respondent that he owns the portion of the lot adjacent to petitioner spouses. They were not shown the Deed of Quitclaim and its Annex "A" or any other document of title which described the specific portion of the land allegedly conveyed to respondent. Thus, the surveys cannot be given evidentiary weight to prove the identity of the land sold to respondent and his ownership thereof.Moreover, the rules on evidence provide that where the contents of the document are the facts in issue, the best evidence is the instrument itself. In the case at bar, the identity of the land claimed and respondents ownership thereof are the very facts in issue. The best evidence to prove these facts is the Quitclaim Deed and its Annex "A" where respondent derives his title and where the land from which he purchased a part was described with particularity, indicating the metes and bounds thereof. Respondents failure to adduce in evidence Annex "A" of the Quitclaim Deed or produce secondary evidence, after proof of its loss, destruction or unavailability, is fatal to his cause.Finally, it bears stress that in an action to recover real property, the settled rule is that the plaintiff must rely on the strength of his title, not on the weakness of the defendants title. This requirement is based on two (2) reasons: first, it is possible that neither the plaintiff nor the defendant is the true owner of the property in dispute, and second, the burden of proof lies on the party who substantially asserts the affirmative of an issue for he who relies upon the existence of a fact should be called upon to prove that fact. In the case at bar, as respondent failed to prove his title to and identity of the contested land, there exists no legal ground upon which to turn over the possession of the disputed area to him.IN VIEW WHEREOF, the petition is GRANTED. The Decision of the Court of Appeals is hereby reversed and set aside. The Decision of the Regional Trial Court of Guagua, Pampanga, dismissing the complaint for accion reinvindicatoria is reinstated.

THIRD DIVISIONG.R. No. 76217 September 14, 1989GERMAN MANAGEMENT & SERVICES, INC., petitioner, vs.HON. COURT OF APPEALS and ERNESTO VILLEZA, respondents.FERNAN, C.J.:Spouses Cynthia Cuyegkeng Jose and Manuel Rene Jose, residents of Pennsylvania, Philadelphia, USA are the owners of a parcel of land situated in Sitio Inarawan, San Isidro, Antipolo, Rizal, covered by TCT No. 50023 of the Register of Deeds of the province of Rizal issued on September 11, 1980 which canceled TCT No. 56762/ T-560. The land was originally registered on August 5, 1948 in the Office of the Register of Deeds of Rizal as OCT No. 19, pursuant to a Homestead Patent granted by the President of the Philippines on July 27, 1948, under Act No. 141. On February 26, 1982, the spouses Jose executed a special power of attorney authorizing petitioner German Management Services to develop their property covered by TCT No. 50023 into a residential subdivision. Consequently, petitioner on February 9, 1983 obtained Development Permit No. 00424 from the Human Settlements Regulatory Commission for said development. Finding that part of the property was occupied by private respondents and twenty other persons, petitioner advised the occupants to vacate the premises but the latter refused. Nevertheless, petitioner proceeded with the development of the subject property which included the portions occupied and cultivated by private respondents. Private respondents filed an action for forcible entry against petitioner before the Municipal Trial Court of Antipolo, Rizal, alleging that they are mountainside farmers of Sitio Inarawan, San Isidro, Antipolo, Rizal and members of the Concerned Citizens of Farmer's Association; that they have occupied and tilled their farmholdings some twelve to fifteen years prior to the promulgation of P.D. No. 27; that during the first week of August 1983, petitioner, under a permit from the Office of the Provincial Governor of Rizal, was allowed to improve the Barangay Road at Sitio Inarawan, San Isidro, Antipolo, Rizal at its expense, subject to the condition that it shall secure the needed right of way from the owners of the lot to be affected; that on August 15, 1983 and thereafter, petitioner deprived private respondents of their property without due process of law by: (1) forcibly removing and destroying the barbed wire fence enclosing their farmholdings without notice; (2) bulldozing the rice, corn fruit bearing trees and other crops of private respondents by means of force, violence and intimidation, in violation of P.D. 1038 and (3) trespassing, coercing and threatening to harass, remove and eject private respondents from their respective farmholdings in violation of P.D. Nos. 316, 583, 815, and 1028. On January 7,1985, the Municipal Trial Court dismissed private respondents' complaint for forcible entry. On appeal, the Regional Trial Court of Antipolo, Rizal, Branch LXXI sustained the dismissal by the Municipal Trial Court.Private respondents then filed a petition for review with the Court of Appeals. On July 24, 1986, said court gave due course to their petition and reversed the decisions of the Municipal Trial Court and the Regional Trial Court. The Appellate Court held that since private respondents were in actual possession of the property at the time they were forcibly ejected by petitioner, private respondents have a right to commence an action for forcible entry regardless of the legality or illegality of possession. Petitioner moved to reconsider but the same was denied by the Appellate Court in its resolution dated September 26, 1986. Hence, this recourse.

WON the Court of Appeals denied due process to petitioner when it reversed the decision of the court a quo without giving petitioner the opportunity to file its answer WON private respondents are entitled to file a forcible entry case against petitioner.

No. The Court of Appeals need not require petitioner to file an answer for due process to exist. The comment filed by petitioner on February 26, 1986 has sufficiently addressed the issues presented in the petition for review filed by private respondents before the Court of Appeals. Having heard both parties, the Appellate Court need not await or require any other additional pleading. Moreover, the fact that petitioner was heard by the Court of Appeals on its motion for reconsideration negates any violation of due process. Notwithstanding petitioner's claim that it was duly authorized by the owners to develop the subject property, private respondents, as actual possessors, can commence a forcible entry case against petitioner because ownership is not in issue. Forcible entry is merely a quieting process and never determines the actual title to an estate. Title is not involved. In the case at bar, it is undisputed that at the time petitioner entered the property, private respondents were already in possession thereof. There is no evidence that the spouses Jose were ever in possession of the subject property. On the contrary, private respondents' peaceable possession was manifested by the fact that they even planted rice, corn and fruit bearing trees twelve to fifteen years prior to petitioner's act of destroying their crops. Although admittedly petitioner may validly claim ownership based on the muniments of title it presented, such evidence does not responsively address the issue of prior actual possession raised in a forcible entry case. It must be stated that regardless of the actual condition of the title to the property, the party in peaceable quiet possession shall not be turned out by a strong hand, violence or terror. Thus, a party who can prove prior possession can recover such possession even against the owner himself. Whatever may be the character of his prior possession, if he has in his favor priority in time, he has the security that entitles him to remain on the property until he is lawfully ejected by a person having a better right by accion publiciana or accion reivindicatoria. Both the Municipal Trial Court and the Regional Trial Court have rationalized petitioner's drastic action of bulldozing and destroying the crops of private respondents on the basis of the doctrine of self-help enunciated in Article 429 of the New Civil Code. Such justification is unavailing because the doctrine of self-help can only be exercised at the time of actual or threatened dispossession which is absent in the case at bar. When possession has already been lost, the owner must resort to judicial process for the recovery of property. This is clear from Article 536 of the Civil Code which states, "(I)n no case may possession be acquired through force or intimidation as long as there is a possessor who objects thereto. He who believes that he has an action or right to deprive another of the holding of a thing, must invoke the aid of the competent court, if the holder should refuse to deliver the thing."WHEREFORE, the Court resolved to DENY the instant petition. The decision of the Court of Appeals dated July 24,1986 is hereby AFFIRMED

SECOND DIVISION[G.R. No. 124058. December 10, 2003]PEOPLE OF THE PHILIPPINES, appellee, vs. JESUS G. RETUBADO alias JESSIE, appellant.D E C I S I O NCALLEJO, SR., J.:This is an appeal from the Decision[footnoteRef:2][1] of the Regional Trial Court, Toledo City, Branch 29, in Criminal Case No. TCS-2153 convicting the appellant Jesus G. Retubado of murder, sentencing him to reclusion perpetua, and directing him to indemnify the heirs of the victim Emmanuel Caon the sum of P50,000.00. [2: ]

The appellant was indicted for murder in an Information, the accusatory portion of which reads:That on the 5th day of November, 1993 at 9:30 oclock in the evening, more or less, at Barangay I Poblacion, Municipality of Tuburan, Province of Cebu, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with deliberate intent to kill, by means of treachery, evident premeditation and taking advantage of superior strength, did then and there willfully, unlawfully and feloniously attack, assault and shoot Emmanuel Caon with the use of unlicensed revolver of unknown caliber, thereby hitting the latter on his forehead, resulting to the instantaneous death of the said victim.CONTRARY TO LAW.[footnoteRef:3][2] [3: ]

Shortly before November 5, 1993, someone played a joke on Edwin Retubado, the appellants younger brother who was mentally ill. Someone inserted a lighted firecracker in a cigarette pack and gave it to Edwin. He brought the cigarette home and placed it on the dining table as he was having dinner with his father. Momentarily, the firecracker exploded. The suspect was Emmanuel Caon, Jr., The Caons and the appellant were neighbors. The matter was brought to the attention of the barangay captain who conducted an investigation. It turned out that Emmanuel Caon, Jr. was not the culprit. The barangay captain considered the matter closed. The appellant, however, was bent on confronting Emmanuel Caon, Jr.On November 5, 1993, at about 9:00 p.m., 50-year-old Emmanuel Caon, Sr., a pedicab driver called it a day and decided to go home after a days work. He drove his pedicab and stopped at the junction of Rizal and Gallardo Streets, at the poblacion of Tuburan. The appellant, who was conversing with Marcial Lucio saw him. Noy, why is [it] your son did something to my brother? Emmanuel ignored the appellant. The appellant was incensed and ran after Emmanuel. He overtook Emmanuel, grabbed and pushed the pedicab which nearly fell into a canal. Emmanuel again ignored the appellant and pedaled on until he reached his house. His wife, Norberta Caon was in the balcony of their house, above the porch waiting for him to arrive. Emmanuel, Jr., meanwhile, was already asleep. Undeterred, the appellant continued following Emmanuel.Shortly after Emmanuel had entered his house, the appellant arrived and tarried at the porch. Emmanuel suddenly opened the door and demanded to know why he was being followed. The appellant told Emmanuel that he just wanted to talk to Emmanuel, Jr., but Emmanuel told the appellant that his son was already asleep. Norberta went down from the balcony and placed her hand on her husbands shoulder to pacify him.The appellant forthwith pulled out a handgun from under his T-shirt and shot Emmanuel on the forehead. The latter fell to the floor as the appellant walked away from the scene. Norberta shouted for help. The neighbors, her daughter, and her son-in-law arrived. They brought Emmanuel to the Tuburan District Hospital, but the victim died shortly thereafter. Dr. Ivar G. Arellano, the Municipal Health Officer, performed an autopsy on the cadaver of Emmanuel and prepared a report thereon with the following findings:Examination in Detail:On detailed examination, a gunshot wound was found at the left side of the forehead, measuring 1 cm. in diameter. At the skin surrounding this wound was found powder burns which measured 3 cms. in diameter as the skin had been blackened and burned by powder of the bullet. The underlying frontal bone was fractured and depressed. The underlying meninges of the brain as well as the frontal area of the brain was traumatized and injured. Blood and cerebrospinal fluid were leaking from this wound. The edges of this bullet wound was inverted thus this was the gunshot entry wound. The wound was found to be circular in shape. The exit wound was found at the left parietal bone measuring 1.2 cm. in size or diameter for this wound communicated with the entry wound of the left side of the forehead. The connection from the wound of entry to the exit wound measured 8 cms. The parietal bone was fractured and was depressed and the parietal part of the brain and meninges was traumatized. Blood and cerebrospinal fluid as well as brain tissues leaked out from this wound.Possible cause of death:1.Gunshot wound at the head (left side) with injury to brain and meninges2.Hypovolemic shock secondary to loss of blood (Severe loss of blood)(Sgd.) Ivar G. ArellanoMUN. Health Officer[footnoteRef:4][3] [4: ]

Dr. Charity Patalinghug and the victims daughter Loreta C. Claro signed Emmanuels Certificate of Death.[footnoteRef:5][4] The appellant surrendered to the police authorities but failed to surrender the firearm he used to kill the victim. Forensic Officer Myrna P. Areola of the PNP Regional Office subjected the appellant to paraffin tests. The Chemical Analysis of the paraffin casts gave the following results: [5: ]

FINDINGS:...1.POSITIVE for the presence of gunpowder residue on his left hand cast.2.NEGATIVE for the presence of gunpowder residue on his right hand cast.[footnoteRef:6][5] [6: ]

Norberta also testified on the expenses incurred by her family due to her husbands death. No documentary evidence was, however, offered to support the same. She declared that she felt sad and lonely as a result of her husband's death.The Case for the AppellantThe appellant admitted shooting the victim but claimed that he was merely performing a lawful act with due care; hence, cannot be held criminally liable for the victims death. He testified that when he insisted that Emmanuel wake up his son, Emmanuel went to his room and emerged therefrom holding a handgun with his right hand. Emmanuels trigger finger was outside the trigger guard, and he held the firearm with the muzzle facing downward. Fearing that he would be shot, the appellant took hold of Emmanuels right hand with his left, and pulled the gun towards Emmanuels stomach. The appellant grabbed Emmanuels free hand with his right hand, and the old man almost fell on his knees to the ground. Emmanuel still resisted. The appellant pulled the gun to the level of Emmanuels forehead, and the gun suddenly went off. The bullet hit Emmanuels forehead. Norberta fled from the house. For his part, the appellant rushed to his house to change clothes. He placed the gun on the dining table before entering his bedroom. When he went back to the dining room to get the gun, his younger sister, Enrica told him that their brother Edwin had taken the gun. He found Edwin outside their house near the church, and the latter told the appellant that he threw the gun into the sea. When the appellant asked his brother to show him where he threw the gun, Edwin refused to do so.Marcial Lucio corroborated the appellants testimony. He testified that he was talking with the appellant at around 9:00 p.m. at the junction of Rizal and Gallardo streets when the victim Emmanuel passed by in his pedicab. When the appellant called the victim, the latter ignored the call, prompting the appellant to chase the victim, and eventually push the pedicab into a canal.The appellants father, Iigo Retubado, testified that on the evening of November 5, 1993, he was in their house with Edwin, his son who was mentally-ill. It was already late when the appellant arrived. The appellant was disheveled, and laid down the gun he was carrying on the table. The appellant told his father that he would surrender to the police because he had shot somebody.[footnoteRef:7][6] The appellant thereafter went to his room to change clothes while Iigo went to the comfort room to answer the call of nature. When he was done, he saw the appellant frantically looking for the gun. As Edwin was also nowhere to be found, Iigo concluded that Edwin might have taken the gun with him. He also testified on Edwins mental imbalance and on the latters confinement at the Psychiatric Department of the Don Vicente Sotto Memorial Medical Center in Cebu City sometime in 1991.[footnoteRef:8][7] [7: ] [8: ]

On November 6, 1993, the appellant surrendered to the police authorities. Although he was required by the municipal trial court to file his counter-affidavit, the appellant refused to do so.After due proceedings, the trial court rendered judgment in Criminal Case No. TCS-2153, convicting the appellant of murder, and sentencing him to reclusion perpetua. The decretal portion of the decision reads:WHEREFORE, in view of the foregoing, this Court finds accused GUILTY beyond reasonable doubt of the crime of Murder under Art. 248 R.P.C. and sentences the accused to the penalty of Reclusion Perpetua and to indemnify the heirs of the deceased the sum of P50,000.00.However, accused is given full credit of his preventive imprisonment.SO ORDERED.[footnoteRef:9][8] [9: ]

On appeal, the appellant assails the decision of the trial court contending that:IFirst Assignment of ErrorTHE LOWER COURT ERRED IN NOT FINDING THE DEATH OF THE DECEASED AS CAUSED BY MERE ACCIDENT WITHOUT FAULT OR INTENTION OF CAUSING IT WHILE THE ACCUSED WAS PERFORMING A LAWFUL ACT WITH DUE CARE OR, IN THE ALTERNATIVE, IT ERRED IN NOT CONVICTING HIM JUST MERELY OF HOMICIDE INSTEAD OF MURDER.IISecond Assignment of ErrorTHE LOWER COURT ERRED IN DISREGARDING THE VERY RELEVANT AND MATERIAL CONTENTS OF EXHIBIT B OF THE PROSECUTION --- CHEMISTRY REPORT, PARAFFIN TEST -- WHICH ARE FAVORABLE TO THE ACCUSED.IIIThird Assignment of ErrorTHE LOWER COURT ERRED IN CONCLUDING THAT THE TESTIMONY OF THE SOLE WITNESS OF THE PROSECUTION IS SATISFACTORY AND SUFFICIENT TO CONVICT THE ACCUSED OF MURDER.IVFourth Assignment of ErrorTHE LOWER COURT ERRED IN FAILING TO CONSIDER THAT THE ACCUSED HAS EXPLAINED WHY HE FAILED TO SURRENDER THE GUN WHICH HE GOT FROM THE DECEASED.[footnoteRef:10][9] [10: ]

The appellant asserts that he was merely performing a lawful act of defending himself when he grabbed the victims hand which held the gun. The gun accidentally fired and the bullet hit the victims forehead. The accident was not the appellants fault. The appellant asserts that when he wrestled with the victim for the possession of the gun, he was merely defending himself. He contends that he had no intention of killing the victim, as he merely wanted to talk to his son. If he had wanted to kill the victim, he could have easily done so when he met the latter for the first time that fateful night of November 5, 1993. Moreover, the appellant submits, he did not commit any felony; hence, under paragraph 4 of Article 12 of the Revised Penal Code, he is not criminally liable for the death of the victim.[footnoteRef:11][10] In the alternative, the appellant asserts that he should be convicted only of the crime of homicide under Article 249 of the Revised Penal Code, since the qualifying circumstance of treachery is wanting. He and the victim had a heated exchange of words before they grappled for the possession of the gun. Such heated discussion had already forewarned the victim and placed him on guard; thus, treachery cannot be legally considered. [11: ]

The contention of the appellant has no merit. Article 11, paragraph 4 of the Revised Penal Code reads:ART. 11. Justifying circumstances. ...4) Any person who, in order to avoid an evil or injury, does an act which causes damage to another provided that the following requisites are present:First. That the evil sought to be avoided actually exists;Second. That the injury feared be greater than that done to avoid it;Third. That there be no other practical and less harmful means of preventing it.The provision was taken from Article 8, paragraph 7 of the Spanish Penal Code, which reads:ARTICULO 8.7. El que para evitar un mal ejecuta un hecho que produzca da en la propiedad ajena, siempre que concurran las circumstancias siguientes:Primera. Realidad del mal que se trata de evitar.Segunda. Quesea mayor que el causado para evitarlo.Tercera. Que no haya otro medio practicable y menos perjudicial para impedirlo.Article 11, paragraph 4 of the Revised Penal Code is not an accurate translation of the Spanish Penal Code. The phrase an injury does not appear in the first paragraph in the Spanish Penal Code. Neither does the word injury appear in the second subparagraph of the Spanish Penal Code.The justification is what is referred to in the Spanish Penal Code as el estado de necessidad:Es una situacion de peligro, actual o immediato para bienes, juridicamente protegides que solo puede ser evitada mediante, la lesion de bienes, tambien juridicamento protegidos, pertenecientes a otra personas.[footnoteRef:12][11] [12: ]

The phrase state of necessity is of German origin. Countries which have embraced the classical theory of criminal law, like Italy, do not use the phrase. The justification refers to a situation of grave peril (un mal), actual or imminent (actual o imminente). The word propiedad covers diverse juridical rights (bienes juridicos) such as right to life, honor, the integrity of ones body, and property (la vida, la integridad corporal, el pudor, el honor, bienes patrimoniales) belonging to another.[footnoteRef:13][12] [13: ]

It is indispensable that the state of necessity must not be brought about by the intentional provocation of the party invoking the same.[footnoteRef:14][13] [14: ]

A number of legal scholars in Europe are of the view that the act of the accused in a state of necessity is justifying circumstance; hence, lawful. Under Article 12, paragraph 4 of the Revised Penal Code, a state of necessity is a justifying circumstance. The accused does not commit a crime in legal contemplation; hence, is not criminally and civilly liable. Civil liability is borne by the person/persons benefited by the act of the accused. Crimes cannot exist unless the will concurs with the act, and when, says Blackstone, a man intending to do a lawful act, does that which is unlawful, the deed and the will act separately and there is no conjunction between them which is necessary to constitute a crime.[footnoteRef:15][14] Others are of the view that such act is a cause for exclusion from being meted a penalty; still others view such act as a case of excluding the accused from culpability. [15: ]

According to Groizard, rights may be prejudiced by three general classes of acts, namely, (a) malicious and intentional acts; (b) negligent or reckless acts; (c) acts which are neither malicious, imprudent nor negligent but nevertheless cause damages.Nuestra propiedad puede ser perjudicada, puede sufrir detrimentos por tres clases de hechos. Por actos maliciosos, intencionales, encaminados directamente a causarnos dao; por actos que, sin llevar ese malicioso fin y por falta de prudencia, por culpa o temeridad del que los ejecuta, den ese mismo resultado, y por actos que, sin concurrir en su ejecucion un proposito doloso, ni culpa, ni negligencia sin embargo produzcan menocabo en nuestros bienes.[footnoteRef:16][15] [16: ]

The defense of a state of necessity is a justifying circumstance under Article 12, paragraph 4 of the Revised Penal Code. It is an affirmative defense that must be proved by the accused with clear and convincing evidence. By admitting causing the injuries and killing the victim, the accused must rely on the strength of his own evidence and not on the weakness of the evidence of the prosecution because if such evidence is weak but the accused fails to prove his defense, the evidence of the prosecution can no longer be disbelieved. Whether the accused acted under a state of necessity is a question of fact, which is addressed to the sound discretion of the trial court. The legal aphorism is that the findings of facts by the trial court, its calibration of the testimony of the witnesses of the parties and of the probative weight thereof as well as its conclusions based on its own findings are accorded by the appellate court high respect, if not conclusive effect, unless the trial court ignored, misconstrued or misapplied cogent facts and circumstances of substance which, if considered, will change the outcome of the case. We have meticulously reviewed the records and find no basis to deviate from the findings of the trial court that the appellant was the provocateur, the unlawful aggressor and the author of a deliberate and malicious act of shooting the victim at close range on the forehead.First: When Norberta heard her husband and the appellant arguing with each other in the porch of their house, she went down from the balcony towards her husband and placed her hand on the latters shoulders. She was shocked when the appellant pulled out his handgun and deliberately shot the victim on the forehead, thus:QNow, you said that when your husband was about to go out again in order to see his trisicad and as he opened the door he saw Jesus Retubado near the door. What happened after that?AHe asked Jesus Retubado why Jesus Retubado chased him when he was driving his trisicad.QNow, as your husband was asking this question to the accused Jesus Retubado what was the distance to your husband at the time?AJust very near to him.QAnd you to the accused at that very moment what was more or less your distance?AAbout an armslength.QWhen your husband asked Jesus Retubado why the latter chased him while your husband was driving his trisicad what was the answer of Jesus Retubado, if any?AMy husband asked the accused Jesus Retubado what is his grudge to him and Jesus Retubado answered that it is not you who has a grudge to me but it is your son.QWhen Jesus Retubado uttered that statement what transpired after that?AHe immediately pointed his firearm that he was bringing (sic) to my husband Emmanuel Caon.QBy the way considering that you were just near to both your husband and the accused where did that firearm that you said was pointed by the accused to your husband come (sic) from?AWhile the accused was standing in front of our door his hands were placed inside his T-shirt covered by his T-shirt.Atty. Pepito:We move to strike out the answer. It is not responsive, Your Honor. The question was, where did it come from?COURT:Let the answer stay in the record but let the witness answer again.AFrom the hands of accused Jessie.Fiscal Pansoy:QNow, just a while ago you were making a motion using your hand placed inside your T-shirt. Now, when you saw the firearm for the first time where did you saw (sic) the firearm for the first time where did the firearm come from as you saw it from the hands of the accused?Atty. Pepito:Already answered. It came from the hands of the accused.Fiscal Pansoy:I will reform.QBefore you saw the firearm in the hands of the accused where did the firearm come from?Atty. Pepito:She is incompetent. We object.COURT:Reform the question.Fiscal Pansoy:QNow, Mrs. Witness, before this question was asked to you as to where the firearm came from you were making a motion by placing your hands inside your shirt when you were only asked as to where the firearm came from?AThat was what the position of the accused when he was standing in front of our door and I do not know what was inside his T-shirt. I only know that he was carrying a firearm when it fired.QNow, when the accused pointed the firearm to your husband and fired the same more or less what was the distance between the accused and your husband at the very precise time when the firing was made?AIt was just very near because his hand did not bend. (Witness demonstrating by pointing to her forehead).QNow, more or less, describe to the Court the approximate distance between the firearm that was pointed to your husband and the forehead of your husband at the time when the firing was done?AIt touched the forehead of my husband.QThat was the very time that you heard the gunburst?AYes.QWhen the accused fired the firearm that was carried by him, what happened to your husband?AMy husband fell down backward to the ground inside the house.QBy the way, what was the flooring of your house where your husband fell backward to the ground?ACemented.QBy the way considering that you were just very near to where the incident occurred can you describe the length of the firearm that was used by the accused in firing your husband?AIt was a short firearm about 6 inches.QNow, as your husband fell down to the floor where did the accused proceed and what did the accused do?AHe was just casually walking away as if nothing had happened.QNow, what did you do to your husband, if any, after he fell down to the floor?AI have done nothing because I was somewhat shocked. I could not move because I was shocked.[footnoteRef:17][16] [17: ]

Second: After shooting the victim, the appellant fled from the situs criminis. He surrendered to the police authorities only on November 6, 1993, but failed to surrender the gun he used to kill the victim. The appellants claim that he placed the gun on the dining table before entering his bedroom to change his clothes is incredible. There is no evidence that the appellant informed the police authorities that he killed the victim in a state of necessity and that his brother, Edwin, threw the gun into the sea. The appellant never presented the police officer to whom he confessed that he killed the victim in a state of necessity.Third: The appellant had the motive to shoot and kill the victim. The victim ignored the appellant as the latter talked to him at the junction of Rizal and Gallardo streets, in the poblacion of Tuburan. The appellant was incensed at the effrontery of the victim, a mere pedicab driver. The appellant followed the victim to his house where the appellant again confronted him. The appellant insisted on talking with the victims son but the victim refused to wake up the latter. The appellant, exasperated at the victims intransigence, pulled out a gun from under his shirt and shot the victim on the forehead. It was impossible for the victim to survive. With the appellants admission that he shot the victim, the matter on whether he used his right or left hand to shoot the latter is inconsequential.We agree with the contention of the Solicitor General that there is no treachery in the present case to qualify the crime to murder. To appreciate treachery, two (2) conditions must be present, namely, (a) the employment of the means of execution that give the person attacked no opportunity to defend himself or to retaliate, and (b) the means of execution were deliberately or consciously adopted.[footnoteRef:18][17] The prosecution failed to adduce an iota of evidence to support the confluence of the abovementioned conditions. Thus, the appellant is guilty only of homicide under Article 249 of the Revised Penal Code. Although the Information alleges that the appellant used an unlicensed firearm to shoot the victim, the prosecution failed to prove that the appellant had no license to possess the same. Hence, the aggravating circumstance of the use of an unlicensed firearm to commit homicide should not be appreciated against the appellant. [18: ]

The appellant is entitled to the mitigating circumstance of voluntary surrender. He turned himself in to the police authorities prior to the issuance of any warrant for his arrest.The trial court awarded P50,000.00 as civil indemnity[footnoteRef:19][18] to the heirs of the deceased. In addition, the heirs are entitled to moral damages in the amount of P50,000.00[footnoteRef:20][19] and the temperate damages in the amount of P25,000.00 since no sufficient proof of actual damages was offered.[footnoteRef:21][20] [19: ] [20: ] [21: ]

WHEREFORE, the appealed judgment is AFFIRMED with MODIFICATION. The appellant Jesus G. Retubado alias Jessie is found GUILTY beyond reasonable doubt of homicide defined in and penalized by Article 249 of the Revised Penal Code and is hereby sentenced to suffer an indeterminate sentence of ten (10) years of prision mayor, in its medium period, as minimum, to fifteen (15) years of reclusion temporal, in its medium period, as maximum, and to pay the heirs of the victim, Emmanuel Caon, P50,000.00 as civil indemnity; P50,000.00 as moral damages; and P25,000.00 as temperate damages.SO ORDERED.