DERIVATIVE SUITS, INDIVIDUAL AND REPRESENTATIVE OR CLASS SUITS

Suits by stockholders or members of a corporation based on wrongful or fraudulent acts of directors or other persons may be classified into individual suits, class suits, and derivative suits. Where a stockholder or member is denied the right of inspection, his suit would be individual because the wrong is done to him personally and not to the other stockholders or the corporation. Where the wrong is done to a group of stockholders, as where preferred stockholders’ rights are violated, a class or representative suit will be proper for the protection of all stockholders belonging to the same group. But where the acts complained of constitute a wrong to the corporation itself, the cause of action belongs to the corporation and not to the individual stockholder or member. Although in most every case of wrong to the corporation, each stockholder is necessarily affected because the value of his interest therein would be impaired, this fact of itself is not sufficient to give him an individual cause of action since the corporation is a person distinct and separate from him, and can and should itself sue the wrongdoer. Otherwise, not only would the theory of separate entity be violated, but there would be multiplicity of suits as well as a violation of the priority rights of creditors. Furthermore, there is the difficulty of determining the amount of damages that should be paid to each individual stockholder.

          However, in cases of mismanagement where the wrongful acts are committed by the directors or trustees themselves, a stockholder or member may find that he has no redress because the former are vested by law with the right to decide whether or not the corporation should sue, and they will never be willing to sue themselves. The corporation would thus be helpless to seek remedy. Because of the frequent occurrence of such a situation, the common law gradually recognized the right of a stockholder to sue on behalf of a corporation in what eventually became known as a "derivative suit." It has been proven to be an effective remedy of the minority against the abuses of management. Thus, an individual stockholder is permitted to institute a derivative suit on behalf of the corporation wherein he holds stock in order to protect or vindicate corporate rights, whenever officials of the corporation refuse to sue or are the ones to be sued or hold the control of the corporation. In such actions, the suing stockholder is regarded as the nominal party, with the corporation as the party in interest. (Jose Campos, Jr. and Maria Clara L. Campos, The Corporation Code: Comments, Notes and Selected Cases (1990 ed.), Vol. I, pp. 819-820).

The afore-quoted exposition is relevant in the case of Santiago Cua, Jr. et. al. vs. Miguel Ocampo Tan, et. al. considering that the claim therein of respondents Miguel, et al., that its Complaint in Civil Case No. 07-610 is not just a derivative suit, but also an intracorporate action arising from devices or schemes employed by the PRCI Board of Directors amounting to fraud or misrepresentation.

The Supreme Court declared that a thorough study of the said Complaint, however, reveals that the distinction is deceptive. The supposed devices and schemes employed by the PRCI Board of Directors amounting to fraud or misrepresentation are the very same bases for the derivative suit. They are the very same acts of the PRCI Board of Directors that have supposedly caused injury to the corporation. From the very beginning of their Complaint, respondents have alleged that they are filing the same "as shareholders, for and in behalf of the Corporation, in order to redress the wrongs committed against the Corporation and to protect or vindicate corporate rights, and to prevent wastage and dissipation of corporate funds and assets and the further commission of illegal acts by the Board of Directors." Although respondents Miguel, et al., also aver that they are seeking "redress for the injuries of the minority stockholders against the wrongdoings of the majority," the rest of the Complaint does not bear this out, and is utterly lacking any allegation of injury personal to them or a certain class of stockholders to which they belong.

Indeed, the Court notes American jurisprudence to the effect that a derivative suit, on one hand, and individual and class suits, on the other, are mutually exclusive, viz:

As the Supreme Court has explained: "A shareholder's derivative suit seeks to recover for the benefit of the corporation and its whole body of shareholders when injury is caused to the corporation that may not otherwise be redressed because of failure of the corporation to act. Thus, ‘the action is derivative, i.e., in the corporate right, if the gravamen of the complaint is injury to the corporation, or to the whole body of its stock and property without any severance or distribution among individual holders, or it seeks to recover assets for the corporation or to prevent the dissipation of its assets.’ [Citations.]" (Jones, supra, 1 Cal.3d 93, 106, 81 Cal.Rptr. 592, 460 P.2d 464.) In contrast, "a direct action [is one] filed by the shareholder individually (or on behalf of a class of shareholders to which he or she belongs) for injury to his or her interest as a shareholder. ... [¶] ... [T]he two actions are mutually exclusive: i.e., the right of action and recovery belongs to either the shareholders (direct action) *651 or the corporation (derivative action)." (Friedman, Cal. Practice Guide: Corporations, supra, ¶ 6:598, p. 6-127.)

Thus, in Nelson v. Anderson (1999) 72 Cal.App.4th 111, 84 Cal.Rptr.2d 753, the **289 minority shareholder alleged that the other shareholder of the corporation negligently managed the business, resulting in its total failure. (Id. at p. 125, 84 Cal.Rptr.2d 753) The appellate court concluded that the plaintiff could not maintain the suit as a direct action: "Because the gravamen of the complaint is injury to the whole body of its stockholders, it was for the corporation to institute and maintain a remedial action. [Citation.] A derivative action would have been appropriate if its responsible officials had refused or failed to act." (Id. at pp. 125-126, 84 Cal.Rptr.2d 753) The court went on to note that the damages shown at trial were the loss of corporate profits. (Id. at p. 126, 84 Cal.Rptr.2d 753) Since "[s]hareholders own neither the property nor the earnings of the corporation," any damages that the plaintiff alleged that resulted from such loss of corporate profits "were incidental to the injury to the corporation."

Based on allegations in the Complaint of Miguel, et al., in Civil Case No. 07-610, the Court determines that there is only a derivative suit, based on the devices and schemes employed by the PRCI Board of Directors that amounts to mismanagement, misrepresentation, fraud, and bad faith. (SANTIAGO CUA, JR., et. al. vs. MIGUEL OCAMPO TAN et. al., G.R. No. 181455-56, December 4, 2009, CHICO-NAZARIO, J.).

ELECTRONIC EVIDENCE RULE: THE RULES ON ELECTRONIC EVIDENCE APPLIES ONLY TO CIVIL ACTIONS, QUASI-JUDICIAL PROCEEDINGS, AND ADMINISTRATIVE PROCEEDINGS. IT DOES NOT APPLY TO CRIMINAL CASES. (RUSTAN ANG Y PASCUA VS. COURT OF APPEALS AND IRISH SAGUD)

In a charge for the crime of violence against women (RA 9262 VAWC) by Irish against her former boyfriend Rustan, is the act of the latter in sending a picture of a naked woman, not her, but with her face on it through text message covered by the Electronic Evidence Rule?

Rustan claims that the obscene picture sent to Irish through a text message constitutes an electronic document. Thus, it should be authenticated by means of an electronic signature, as provided under Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC). Thus:

RULE 5 

AUTHENTICATION OF ELECTRONIC DOCUMENTS 

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

           

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

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

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

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

            SEC. 3. Proof of electronically notarized document. - A document electronically notarized in accordance with the rules promulgated by the Supreme Court shall be considered as a public document and proved as a notarial document under the Rules of Court (emphasis supplied). 

But, firstly, Rustan is raising this objection to the admissibility of the obscene picture, Exhibit A, for the first time before this Court. The objection is too late since he should have objected to the admission of the picture on such ground at the time it was offered in evidence. He should be deemed to have already waived such ground for objection (People v. Mendoza, G.R. No. 180501, December 24, 2008, 575 SCRA 616, 625-626.).

Besides, the rules he cites do not apply to the present criminal action. The Rules on Electronic Evidence applies only to civil actions, quasi-judicial proceedings, and administrative proceedings. (A.M. No. 01-7-01-SC, Rule 1, Section 2). Be that as it may, in conclusion, the Supreme Court found that the prosecution has proved each and every element of the crime charged beyond reasonable doubt (RUSTAN ANG y PASCUA vs. THE HONORABLE COURT OF APPEALS and IRISH SAGUD, G.R. No. 182835, April 20, 2010, ABAD, J.).

RES GESTAE PRINCIPLE, AN EXCEPTION TO THE HEARSAY RULE

Res gestae refers to statements made by the participants or the victims of, or the spectators to, a crime immediately before, during, or after its commission. These statements are a spontaneous reaction or utterance inspired by the excitement of the occasion, without any opportunity for the declarant to fabricate a false statement. 

An important consideration is whether there intervened, between the occurrence and the statement, any circumstance calculated to divert the mind and thus restore the mental balance of the declarant; and afford an opportunity for deliberation .

For spontaneous statements to be admitted in evidence, the following must concur: 1) the principal act, the res gestae, is a startling occurrence; 2) the statements were made before the declarant had time to contrive or devise; and 3) the statements concerned the occurrence in question and its immediately attending circumstances (Marturillas v. People, G.R. No. 163217, April 18, 2006, 487 SCRA 273, 308-309).

In People vs. Fallones, the Supreme Court held that the principle of res gestae applies. Thus:

Fallones’ act of forcing himself into Alice is a startling event. And Amalia happened to be just outside his house when she heard Alice cry out “tama na, tama na!”  When Fallones opened the door upon Amalia’s incessant knocking, Alice came out from behind him, uttering “Amalia, may napkin na binigay si Romy o.”  The admissibility of Alice’s spontaneous statements rests on the valid assumption that they were spoken under circumstances where there had been no chance to contrive.[Id.]  It is difficult to lie in an excited state and the impulsiveness of the expression is a guaranty of trustworthiness (Capila v. People, G.R. No. 146161, July 17, 2006, 495 SCRA 276, 281-282  x x x x

For his defense, Fallones claimed that the members of Alice’s family pressured her into pointing to him as her abuser.  But he has been unable to establish any possible ill-motive that could prompt Alice’s family into charging him falsely.  Indeed, Fallones admitted at the trial that there had been no animosity between Alice’s family and him.  

      Fallones argues that Alice’s actuations after the incident negate rape, invoking the Court’s ruling in People v. Dela Cruz, 388 Phil. 678 (2000).  But the circumstances of the latter case are far too different from those existing in the present case.  In Dela Cruz, although the victim was seven years old when the supposed rape took place, she was not mentally retarded.  Further, she was already 19 years old when she reported the incident 12 years after it happened.  Besides, the medical findings revealed that her hymen remained intact. Thus, the Court did not believe that she had been raped when she was seven.

In sum, the testimony of the witnesses, the physical evidence, the medico-legal finding, and the psychologist’s report all establish that Fallones raped Alice. The defense offered no witness or evidence of Fallones’ innocence other than his bare denial. Again, the Court will not disturb the RTC’s findings and conclusion being the first-hand observer of the witnesses’ attitude and behavior during trial. The defense counsel was unsuccessful in impeaching Amalia during cross-examination. In fine, the guilt of the accused has been proved beyond reasonable doubt.Alice is dead but, as Shakespeare wrote in his Sonnets—The Winter’s Tale, "the silence often of pure innocence persuades when speaking fails" (Bartlett’s Familiar Quotations" by John Bartlett, p. 222, par. 22). (PEOPLE OF THE PHILIPPINES vs. ROMY FALLONES y LABANA, G.R. No. 190341, March 16, 2011, ABAD, J.).

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JAYSON IVLER CASE: PRIOR CONVICTION OR ACQUITTAL FOR RECKLESS IMPRUDENCE BARS SUBSEQUENT PROSECUTION FOR THE SAME QUASI-OFFENSE

In Jayson Ivler Y Aguilar vs. Hon. Maria Rowena Modesto-San Pedro, the Supreme Court sufficiently explained that the doctrine that reckless imprudence under Article 365 is a single quasi-offense by itself and not merely a means to commit other crimes such that conviction or acquittal of such quasi-offense bars subsequent prosecution for the same quasi-offense, regardless of its various resulting acts, undergirded this Court’s unbroken chain of jurisprudence on double jeopardy as applied to Article 365 starting with People v. Diaz, [94 Phil. 715 (1954)] decided in 1954.

There, a full Court, speaking through Mr. Justice Montemayor, ordered the dismissal of a case for "damage to property thru reckless imprudence" because a prior case against the same accused for "reckless driving," arising from the same act upon which the first prosecution was based, had been dismissed earlier. Since then, whenever the same legal question was brought before the Court, that is, whether prior conviction or acquittal of reckless imprudence bars subsequent prosecution for the same quasi-offense, regardless of the consequences alleged for both charges, the Court unfailingly and consistently answered in the affirmative in People v. Belga [100 Phil. 996 (1957) (barring subsequent prosecutions for physical injuries thru reckless imprudence and damage to property thru reckless imprudence following an acquittal for "reckless imprudence with physical injury")] (promulgated in 1957 by the Court en banc, per Reyes, J.), Yap v. Lutero [105 Phil. 1307 (1959) (Unrep.) (barring subsequent prosecution for "serious physical injuries" following an acquittal for "reckless driving")] (promulgated in 1959, unreported, per Concepcion, J.), People v. Narvas [107 Phil. 737 (1960) (barring subsequent prosecution for "damage to property thru reckless imprudence" following a conviction for "multiple slight and serious physical injuries thru reckless imprudence.")] (promulgated in 1960 by the Court en banc, per Bengzon J.), People v. Silva [No. L-15974, 30 January 1962, 4 SCRA 95 (barring subsequent prosecution for "homicide thru reckless imprudence" following an acquittal for "slight physical injuries thru reckless imprudence").] (promulgated in 1962 by the Court en banc, per Paredes, J.), People v. Macabuhay [123 Phil. 48 (1966) (barring subsequent prosecution for "damage to property thru reckless imprudence" following an acquittal for two counts of "slight physical injuries thru reckless imprudence.")] (promulgated in 1966 by the Court en banc, per Makalintal, J.), People v. Buan [131 Phil. 498 (1968) (barring subsequent prosecution for "serious physical injuries and damage to property thru reckless imprudence" following an acquittal for "slight physical injuries thru reckless imprudence").] (promulgated in 1968 by the Court en banc, per Reyes, J.B.L., acting C. J.), Buerano v. Court of Appeals [200 Phil. 486 (1982) (reversing a subsequent conviction for "damage to property thru reckless imprudence" following a conviction for "slight and serious physical injuries thru reckless imprudence").] (promulgated in 1982 by the Court en banc, per Relova, J.), and People v. City Court of Manila [206 Phil. 555 (1983) (barring subsequent prosecution for "homicide thru reckless imprudence" following a conviction for "serious physical injuries thru reckless imprudence").] (promulgated in 1983 by the First Division, per Relova, J.). These cases uniformly barred the second prosecutions as constitutionally impermissible under the Double Jeopardy Clause.

The reason for this consistent stance of extending the constitutional protection under the Double Jeopardy Clause to quasi-offenses was best articulated by Mr. Justice J.B.L. Reyes in Buan, where, in barring a subsequent prosecution for "serious physical injuries and damage to property thru reckless imprudence" because of the accused’s prior acquittal of "slight physical injuries thru reckless imprudence," with both charges grounded on the same act, the Court explained: [131 Phil. 498, 500 (1968).]

Reason and precedent both coincide in that once convicted or acquitted of a specific act of reckless imprudence, the accused may not be prosecuted again for that same act. For the essence of the quasi offense of criminal negligence under article 365 of the Revised Penal Code lies in the execution of an imprudent or negligent act that, if intentionally done, would be punishable as a felony. The law penalizes thus the negligent or careless act, not the result thereof. The gravity of the consequence is only taken into account to determine the penalty, it does not qualify the substance of the offense. And, as the careless act is single, whether the injurious result should affect one person or several persons, the offense (criminal negligence) remains one and the same, and can not be split into different crimes and prosecutions. x x x (Emphasis supplied) x x x x x

Evidently, the Diaz line of jurisprudence on double jeopardy merely extended to its logical conclusion the reasoning of Quizon.      x x x x Hence, the Supreme Court found merit in petitioner’s submission that the lower courts erred in refusing to extend in his favor the mantle of protection afforded by the Double Jeopardy Clause.

A more fitting jurisprudence could not be tailored to petitioner’s case than People v. Silva, No. L-15974, 30 January 1962, 4 SCRA 95, a Diaz progeny. There, the accused, who was also involved in a vehicular collision, was charged in two separate Informations with "Slight Physical Injuries thru Reckless Imprudence" and "Homicide with Serious Physical Injuries thru Reckless Imprudence." Following his acquittal of the former, the accused sought the quashal of the latter, invoking the Double Jeopardy Clause. The trial court initially denied relief, but, on reconsideration, found merit in the accused’s claim and dismissed the second case.  x x x x

Ergo, the Supreme Court granted the petition and DISMISSED the Information in Criminal Case No. 82366 against petitioner Jason Ivler y Aguilar pending with the Metropolitan Trial Court of Pasig City, Branch 71 on the ground of double jeopardy (JASON IVLER y AGUILAR vs. HON. MARIA ROWENA MODESTO-SAN PEDRO, G.R. No. 172716, November 17, 2010, CARPIO, J.). 

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THE COURT OF APPEALS CORRECTLY DISMISSED THE SPECIAL CIVIL ACTION FOR CERTIORARI, WHICH QUESTIONED THE RTC’S GRANT OF BAIL TO RESPONDENT, FOR HAVING BEEN FILED IN THE NAME OF THE OFFENDED PARTIES AND WITHOUT THE OSG’S INTERVENTION.

The grant of bail or its denial has no impact on the civil liability of the accused that depends on conviction by final judgment.  Ergo, the Court of Appeals correctly dismissed the special civil action for certiorari, which questioned the RTC’s grant of bail to respondent, for having been filed in the name of the offended parties and without the OSG’s intervention.

the question of granting bail to the accused is but an aspect of the criminal action, preventing him from eluding punishment in the event of conviction. The grant of bail or its denial has no impact on the civil liability of the accused that depends on conviction by final judgment.

While in Narciso v. Sta. Romana-Cruz, 385 Phil. 208 (2000), the Supreme Court allowed the offended party to challenge before it the trial court's order granting bail. Nonetheless, in that case, the trial court gravely abused its discretion amounting to lack of jurisdiction in granting bail without conducting any hearing at all.  Thus, to disallow the appeal on the basis of lack of intervention of the OSG would "leave the private complainant without any recourse to rectify the public injustice." (People v. Calo, G.R. No. 88531, June 18, 1990, 186 SCRA 620, 624).

On the contrary, the Supreme Court in Burgos vs. Court of Appeals, emphatically stated that since respondent Co has already been arraigned, the trial and judgment, with award for civil liability when warranted, could proceed even in his absence.

This is true because the trial court took time to hear the parade of witnesses that the prosecution presented before reaching the conclusion that the evidence of guilt of respondent Co was not strong.  Ergo, the CA correctly dismissed the special civil action of certiorari, which questioned the RTC’s grant of bail to respondent Co, for having been filed in the name of the offended parties and without the OSG’s intervention (BURGOS vs. CA, G.R. No. 169711, February 08, 2010, ABAD, J.).

EXECUTION AS A MATTER OF RIGHT AND DISCRETION

Normally, execution will issue as a matter of right only (a) when the judgment has become final and executory; (b) when the judgment debtor has renounced or waived his right of appeal; (c) when the period for appeal has lapsed without an appeal having been filed; or (d) when, having been filed, the appeal has been resolved and the records of the case have been returned to the court of origin.

RELATIVE THERETO, Execution pending appeal is the exception to the general rule.  

As such exception, the court’s discretion in allowing it must be strictly construed and firmly grounded on the existence of good reasons. "Good reasons," it has been held, consist of compelling circumstances that justify immediate execution lest the judgment becomes illusory. The circumstances must be superior, outweighing the injury or damages that might result should the losing party secure a reversal of the judgment. Lesser reasons would make of execution pending appeal, instead of an instrument of solicitude and justice, a tool of oppression and inequity” (ROSARIO T. FLORENDO vs. PARAMOUNT INSURANCE CORP., G.R. No. 167976, January 20, 2010, ABAD, J.).

ONLY THE STATE, THROUGH ITS APPELLATE COUNSEL, THE OFFICE OF THE SOLICITOR GENERAL (OSG),WHO HAS THE SOLE RIGHT AND AUTHORITY TO INSTITUTE PROCEEDINGS BEFORE THE COURT OF APPEALS OR THE SUPREME COURT.

The purpose of a criminal action, in its purest sense, is to determine the penal liability of the accused for having outraged the state with his crime and, if he be found guilty, to punish him for it. In this sense, the parties to the action are the People of the Philippines and the accused. (Hun Hyung Park v. Eung Won Choi, supra note 16, at 514).  The offended party is regarded merely as a witness for the state.

Also in this wise, only the state, through its appellate counsel, the OSG, (ADMINISTRATIVE CODE OF 1987, Book IV, Title III, Chapter 12, Section 35 (1); Macasaet v. People, 492 Phil. 355, 375 (2005); Cariño v. De Castro, G.R. No. 176084, April 30, 2008, 553 SCRA 688, 696; People v. Puig, G.R. Nos. 173654-765, August 28, 2008, 563 SCRA 564, 575) who has the sole right and authority to institute proceedings before the CA or the Supreme Court. (Cariño v. De Castro, supra note 24).

As a general rule, the mandate or authority to represent the state lies only in the OSG. Thus:

It is patent that the intent of the lawmaker was to give the designated official, the Solicitor General, in this case, the unequivocal mandate to appear for the government in legal proceedings. Spread out in the laws creating the office is the discernible intent which may be gathered from the term "shall" x x x  

The Court is firmly convinced that considering the spirit and the letter of the law, there can be no other logical interpretation of Sec. 35 of the Administrative Code than that it is, indeed, mandatory upon the OSG to "represent the Government of the Philippines, its agencies and instrumentalities and its officials and agents in any litigation, proceeding, investigation or matter requiring the services of a lawyer. (Gonzales v. Chavez, G.R. No. 97351, February 4, 1992, 205 SCRA 816, 832; Cooperative Development Authority v. Dolefil Agrarian Reform Beneficiaries Cooperative, Inc., supra note 12, at 307).

For the above reason, actions essentially involving the interest of the state, if not initiated by the Solicitor General, are, as a rule, (Perez v. Hagonoy Rural Bank, Inc., supra note 20, at 334) summarily dismissed (Cooperative Development Authority v. Dolefil Agrarian Reform Beneficiaries Cooperative, Inc., supra note 12, at 306). (BURGOS vs. CA, G.R. No. 169711, February 08, 2010, ABAD, J.).

WHEN THE TRIAL COURT ACQUITS THE ACCUSED OR DISMISSES THE CASE ON THE GROUND OF LACK OF EVIDENCE TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT, THE CIVIL ACTION IS NOT AUTOMATICALLY EXTINGUISHED.

Generally, a criminal case has two aspects, the civil and the criminal. The civil aspect is borne of the principle that every person criminally liable is also civilly liable (REVISED PENAL CODE, Article 100).  The civil action, in which the offended party is the plaintiff and the accused is the defendant, (Hun Hyung Park v. Eung Won Choi, G.R. No. 165496, February 12, 2007, 515 SCRA 502, 512-513) is deemed instituted with the criminal action unless the offended party waives the civil action or reserves the right to institute it separately or institutes the civil action prior to the criminal action. (RULES OF COURT, Rule 111, Sec. 1(a)).

The law allows the merger of the criminal and the civil actions to avoid multiplicity of suits. (Salazar v. People, 458 Phil. 504, 514 (2003); Hun Hyung Park v. Eung Won Choi, supra note 16, at 511). Thus, when the state succeeds in prosecuting the offense, the offended party benefits from such result and is able to collect the damages awarded to him.

however, when the trial court acquits the accused or dismisses the case on the ground of lack of evidence to prove the guilt of the accused beyond reasonable doubt, the civil action is not automatically extinguished.

In other words, when the trial court acquits the accused (People v. Santiago, G.R. No. 80778, June 20, 1989, 174 SCRA 143, 151; Metropolitan Bank and Trust Company v. Veridiano II, 412 Phil. 795 (2001) or dismisses the case (Perez v. Hagonoy Rural Bank, Inc., 384 Phil. 322 (2000) on the ground of lack of evidence to prove the guilt of the accused beyond reasonable doubt, the civil action is not automatically extinguished since liability under such an action can be determined based on mere preponderance of evidence. The offended party may peel off from the terminated criminal action and appeal from the implied dismissal of his claim for civil liability. (Metropolitan Bank and Trust Company v. Veridiano II). (BURGOS vs. CA, G.R. No. 169711, February 08, 2010, ABAD, J.).

RELEVANT DOCTRINES ON THE VIZCONDE MASSACRE CASE: ANTONIO LEJANO, HUBERT WEBB, ET. AL., VS. PEOPLE

1.         there is no right for acquittal Due to Loss of DNA Evidence

Webb claims, citing Brady v. Maryland, 373 U.S. 83 (1963) that he is entitled to outright acquittal on the ground of violation of his right to due process given the State’s failure to produce on order of the Court either by negligence or willful suppression the semen specimen taken from Carmela. The medical evidence clearly established that Carmela was raped and, consistent with this, semen specimen was found in her. It is true that Alfaro identified Webb in her testimony as Carmela’s rapist and killer but serious questions had been raised about her credibility. At the very least, there exists a possibility that Alfaro had lied. On the other hand, the semen specimen taken from Carmela cannot possibly lie. It cannot be coached or allured by a promise of reward or financial support. No two persons have the same DNA fingerprint, with the exception of identical twins. (People v. Yatar, G.R. No. 150224, May 19, 2004, 425 SCRA 504, 514).  If, on examination, the DNA of the subject specimen does not belong to Webb, then he did not rape Carmela. It is that simple. Thus, the Court would have been able to determine that Alfaro committed perjury in saying that he did.

The Supreme Court ruled that Webb is not entitled to acquittal for the failure of the State to produce the semen specimen at this late stage. For one thing, the ruling in Brady v. Maryland, that he cites has long be overtaken by the decision in Arizona v. Youngblood, 488 U.S. 41 (1988) where the U.S. Supreme Court held that due process does not require the State to preserve the semen specimen although it might be useful to the accused unless the latter is able to show bad faith on the part of the prosecution or the police. Here, the State presented a medical expert who testified on the existence of the specimen and Webb in fact sought to have the same subjected to DNA test.  For, another, when Webb raised the DNA issue, the rule governing DNA evidence did not yet exist, the country did not yet have the technology for conducting the test, and no Philippine precedent had as yet recognized its admissibility as evidence. Consequently, the idea of keeping the specimen secure even after the trial court rejected the motion for DNA testing did not come up. Indeed, neither Webb nor his co-accused brought up the matter of preserving the specimen in the meantime.

Parenthetically, after the trial court denied Webb’s application for DNA testing, he allowed the proceeding to move on when he had on at least two occasions gone up to the Court of Appeals or the Supreme Court to challenge alleged arbitrary actions taken against him and the other accused (Webb v. De Leon, G.R. No. 121234, August 23, 1995, 247 SCRA 652; Webb v. People, G.R. No. 127262, July 24, 1997, 276 SCRA 243). They raised the DNA issue before the Court of Appeals but merely as an error committed by the trial court in rendering its decision in the case. None of the accused filed a motion with the appeals court to have the DNA test done pending adjudication of their appeal. This, even when the Supreme Court had in the meantime passed the rules allowing such test. Considering the accused’s lack of interest in having such test done, the State cannot be deemed put on reasonable notice that it would be required to produce the semen specimen at some future time. 

2.         Alibi vs. Positive Identification

Alibi cannot stand against positive identification. But not all denials and alibis should be regarded as fabricated. For how else can the truth that the accused is really innocent have any chance of prevailing over such a stone-cast tenet? There is only one way. A judge must keep an open mind. He must guard against slipping into hasty conclusion, often arising from a desire to quickly finish the job of deciding a case. A positive declaration from a witness that he saw the accused commit the crime should not automatically cancel out the accused’s claim that he did not do it. A lying witness can make as positive an identification as a truthful witness can. The lying witness can also say as forthrightly and unequivocally, "He did it!" without blinking an eye.

Rather, to be acceptable, the positive identification must meet at least two criteria:

First, the positive identification of the offender must come from a credible witness. She is credible who can be trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her, its weight in gold.

And second, the witness’ story of what she personally saw must be believable, not inherently contrived. A witness who testifies about something she never saw runs into inconsistencies and makes bewildering claims. 

Here, as already fully discussed above, Alfaro and her testimony fail to meet the above criteria. She did not show up at the NBI as a spontaneous witness bothered by her conscience. She had been hanging around that agency for sometime as a stool pigeon, one paid for mixing up with criminals and squealing on them. Police assets are often criminals themselves. She was the prosecution’s worst possible choice for a witness. Indeed, her superior testified that she volunteered to play the role of a witness in the Vizconde killings when she could not produce a man she promised to the NBI. And, although her testimony included details, Alfaro had prior access to the details that the investigators knew of the case. She took advantage of her familiarity with these details to include in her testimony the clearly incompatible act of Webb hurling a stone at the front door glass frames even when they were trying to slip away quietly—just so she can accommodate this crime scene feature. She also had Ventura rummaging a bag on the dining table for a front door key that nobody needed just to explain the physical evidence of that bag and its scattered contents. And she had Ventura climbing the car’s hood, risking being seen in such an awkward position, when they did not need to darken the garage to force open the front door—just so to explain the darkened light and foot prints on the car hood.

Further, her testimony was inherently incredible. Her story that Gatchalian, Fernandez, Estrada, Rodriguez, and Filart agreed to take their turns raping Carmela is incongruent with their indifference, exemplified by remaining outside the house, milling under a street light, visible to neighbors and passersby, and showing no interest in the developments inside the house, like if it was their turn to rape Carmela. Alfaro’s story that she agreed to serve as Webb’s messenger to Carmela, using up her gas, and staying with him till the bizarre end when they were practically strangers, also taxes incredulity. To provide basis for Webb’s outrage, Alfaro said that she followed Carmela to the main road to watch her let off a lover on Aguirre Avenue. And, inexplicably, although Alfaro had only played the role of messenger, she claimed leading Webb, Lejano, and Ventura into the house to gang-rape Carmella, as if Alfaro was establishing a reason for later on testifying on personal knowledge. Her swing from an emotion of fear when a woman woke up to their presence in the house and of absolute courage when she nonetheless returned to become the lone witness to a grim scene is also quite inexplicable. Ultimately, Alfaro’s quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot be the positive identification that jurisprudence acknowledges as sufficient to jettison a denial and an alibi. 

 3.        A documented alibi 

To establish alibi, the accused must prove by positive, clear, and satisfactory evidence (People v. Hillado, 367 Phil. 29 (1999) that (a) he was present at another place at the time of the perpetration of the crime, and (b) that it was physically impossible for him to be at the scene of the crime (People v. Saban, G.R. No. 110559, November 24, 1999, 319 SCRA 36, 46).

The courts below held that, despite his evidence, Webb was actually in Parañaque when the Vizconde killings took place; he was not in the U.S. from March 9, 1991 to October 27, 1992; and if he did leave on March 9, 1991, he actually returned before June 29, 1991, committed the crime, erased the fact of his return to the Philippines from the records of the U.S. and Philippine Immigrations, smuggled himself out of the Philippines and into the U.S., and returned the normal way on October 27, 1992. But this ruling practically makes the death of Webb and his passage into the next life the only acceptable alibi in the Philippines. Courts must abandon this unjust and inhuman paradigm. If one is cynical about the Philippine system, he could probably claim that Webb, with his father’s connections, can arrange for the local immigration to put a March 9, 1991 departure stamp on his passport and an October 27, 1992 arrival stamp on the same. But this is pure speculation since there had been no indication that such arrangement was made. Besides, how could Webb fix a foreign airlines’ passenger manifest, officially filed in the Philippines and at the airport in the U.S. that had his name on them? How could Webb fix with the U.S. Immigration’s record system those two dates in its record of his travels as well as the dates when he supposedly departed in secret from the U.S. to commit the crime in the Philippines and then return there? No one has come up with a logical and plausible answer to these questions.

The Court of Appeals rejected the evidence of Webb’s passport since he did not leave the original to be attached to the record. But, while the best evidence of a document is the original, this means that the same is exhibited in court for the adverse party to examine and for the judge to see. As Court of Appeals Justice Tagle said in his dissent, the practice when a party does not want to leave an important document with the trial court is to have a photocopy of it marked as exhibit and stipulated among the parties as a faithful reproduction of the original. Stipulations in the course of trial are binding on the parties and on the court. The U.S. Immigration certification and the computer print-out of Webb’s arrival in and departure from that country were authenticated by no less than the Office of the U.S. Attorney General and the State Department. Still the Court of Appeals refused to accept these documents for the reason that Webb failed to present in court the immigration official who prepared the same. But this was unnecessary. Webb’s passport is a document issued by the Philippine government, which under international practice, is the official record of travels of the citizen to whom it is issued. The entries in that passport are presumed true. (Section 44, Rule 130, Rules of Court).

The U.S. Immigration certification and computer print-out, the official certifications of which have been authenticated by the Philippine Department of Foreign Affairs, merely validated the arrival and departure stamps of the U.S. Immigration office on Webb’s passport. They have the same evidentiary value. The officers who issued these certifications need not be presented in court to testify on them. Their trustworthiness arises from the sense of official duty and the penalty attached to a breached duty, in the routine and disinterested origin of such statement and in the publicity of the record (Antilon v. Barcelona, 37 Phil. 148 (1917).

The Court of Appeals of course makes capital of the fact that an earlier certification from the U.S. Immigration office said that it had no record of Webb entering the U.S. But that erroneous first certification was amply explained by the U.S. Government and Court of Appeals Justice Tagle stated it in his dissenting opinion, thus:

While it is true that an earlier Certification was issued by the U.S. INS on August 16, 1995 finding "no evidence of lawful admission of Webb," this was already clarified and deemed erroneous by no less than the US INS Officials. As explained by witness Leo Herrera-Lim, Consul and Second Secretary of the Philippine Embassy in Washington D.C., said Certification did not pass through proper diplomatic channels and was obtained in violation of the rules on protocol and standard procedure governing such request.

The initial request was merely initiated by BID Commissioner Verceles who directly communicated with the Philippine Consulate in San Francisco, USA, bypassing the Secretary of Foreign Affairs which is the proper protocol procedure. Mr. Steven Bucher, the acting Chief of the Records Services Board of US-INS Washington D.C. in his letter addressed to Philip Antweiler, Philippine Desk Officer, State Department, declared the earlier Certification as incorrect and erroneous as it was "not exhaustive and did not reflect all available information." Also, Richard L. Huff, Co-Director of the Office of Information and privacy, US Department of Justice, in response to the appeal raised by Consul General Teresita V. Marzan, explained that "the INS normally does not maintain records on individuals who are entering the country as visitors rather than as immigrants: and that a notation concerning the entry of a visitor may be made at the Nonimmigrant Information system. Since appellant Webb entered the U.S. on a mere tourist visa, obviously, the initial search could not have produced the desired result inasmuch as the data base that was looked into contained entries of the names of IMMIGRANTS and not that of NON-IMMIGRANT visitors of the U.S. The trial court and the Court of Appeals expressed marked cynicism over the accuracy of travel documents like the passport as well as the domestic and foreign records of departures and arrivals from airports. They claim that it would not have been impossible for Webb to secretly return to the Philippines after he supposedly left it on March 9, 1991, commit the crime, go back to the U.S., and openly return to the Philippines again on October 26, 1992. Travel between the U.S. and the Philippines, said the lower courts took only about twelve to fourteen hours.

If the Court were to subscribe to this extremely skeptical view, it might as well tear the rules of evidence out of the law books and regard suspicions, surmises, or speculations as reasons for impeaching evidence. It is not that official records, which carry the presumption of truth of what they state, are immune to attack. They are not. That presumption can be overcome by evidence. Here, however, the prosecution did not bother to present evidence to impeach the entries in Webb’s passport and the certifications of the Philippine and U.S.’ immigration services regarding his travel to the U.S. and back. The prosecution’s rebuttal evidence is the fear of the unknown that it planted in the lower court’s minds. 

4.         Effect of Webb’s alibi to others 


 Webb’s documented alibi altogether impeaches Alfaro's testimony, not only with respect to him, but also with respect to Lejano, Estrada, Fernandez, Gatchalian, Rodriguez, and Biong. For, if the Court accepts the proposition that Webb was in the U.S. when the crime took place, Alfaro’s testimony will not hold together. Webb’s participation is the anchor of Alfaro’s story. Without it, the evidence against the others must necessarily fall.  

CONCLUSION

In our criminal justice system, what is important is, not whether the court entertains doubts about the innocence of the accused since an open mind is willing to explore all possibilities, but whether it entertains a reasonable, lingering doubt as to his guilt. For, it would be a serious mistake to send an innocent man to jail where such kind of doubt hangs on to one’s inner being, like a piece of meat lodged immovable between teeth. Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset who proposed to her handlers that she take the role of the witness to the Vizconde massacre that she could not produce? WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated December 15, 2005 and Resolution dated January 26, 2007 of the Court of Appeals in CA-G.R. CR-H.C. 00336 and ACQUITS accused-appellants Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they were charged for failure of the prosecution to prove their guilt beyond reasonable doubt. They are ordered immediately RELEASED from detention unless they are confined for another lawful cause. (ANTONIO LEJANO vs. PEOPLE OF THE PHILIPPINES, G.R. No. 176389, December 14, 2010, ABAD, J.).

A MOTION FOR RECONSIDERATION OF A CHALLENGED ORDER IS A PREREQUISITE TO THE FILING OF A SPECIAL CIVIL ACTION FOR CERTIORARI. ONE OF THE EXCEPTIONS TO SUCH REQUIREMENT IS WHERE THE MATTER INVOLVED IS URGENT.

The general rule is of course that a motion for reconsideration of the challenged order is a prerequisite to the filing of a special civil action of certiorari in a higher court to annul such order. This gives the lower court a chance to correct the errors imputed to it.

But one of the exceptions to such requirement is where the matter involved is urgent.

In Rosario Florendo vs. Paramount Insurance Corporation, the Supreme Court sustained the act of the Court of Appeals in correctly dispensing with the above-mentioned requirement since the RTC had already issued a writ of execution and so its enforcement was imminent.

Moreover, the High Court observed that the issue of the validity of the execution pending appeal was a pure question of law conformably to its ruling in Geologistics, Inc. v. Gateway Electronic Corp., G.R. Nos. 174256-57, March 25, 2009.  Necessarily therefore, a motion for reconsideration is not anymore a condition sine qua non for the filing of a Petition for Certiorari. (ROSARIO FLORENDO vs. PARAMOUNT INSURANCE CORPoration, G.R. No. 167976, January 20, 2010, ABAD, J.). 

Priceless messages received relative to the 2011 Remedial Law BAR Examination

- THANK YOU SO MUCH SIR KIT. U BUILT MY CONFIDENCE! REMEDIAL LAW WILL MAKE ME A LAWYER! MAY HEAVENLY FATHER bless you more. Thank you for being a Great mentor. 

- BANTOLO-CASTILLON Fanny, Sir. Pinanghahawakan ko tong subject mo. - 

- LEX Cagayan De Oro. Im Sorry but U exceeded my expectation. Not all Reviewers are Teachers, but U are!


- happy birthday po!!! And thank po sa lecture sa NEU last week sobrang nakatulong po sa bar...


- atty maraming salamat sa notes nyo  salamat godbless u - Marcian Francisco Banares Donato III


-  Mlqu law sir maraming salamat sir


-  Atty., sir, maraming maraming salamat po sa inyo...may God bless you more!- Lex Cotabato City 


-  Better than a thousand days of diligent study is one day with a great teacher. Much Obliged!! - mox layugmox@yahoo.com 


-  Thank you sir for all your notes during the review on remedial. It was very useful. - Ms. Cyril Barrameda 

UNIVERSITY OF MANILA PRE-WEEK BAR REVIEW SCHEDULE

JUSTICE ROBERTO ABAD: THE COURT’S DISCRETION IN ALLOWING EXECUTION PENDING APPEAL MUST BE STRICTLY CONSTRUED AND FIRMLY GROUNDED ON THE EXISTENCE OF GOOD REASONS.

Normally, execution will issue as a matter of right only (a) when the judgment has become final and executory; (b) when the judgment debtor has renounced or waived his right of appeal; (c) when the period for appeal has lapsed without an appeal having been filed; or (d) when, having been filed, the appeal has been resolved and the records of the case have been returned to the court of origin. x x x

Execution pending appeal is the exception to the general rule.  As such exception, the court’s discretion in allowing it must be strictly construed and firmly grounded on the existence of good reasons. "Good reasons," it has been held, consist of compelling circumstances that justify immediate execution lest the judgment becomes illusory. The circumstances must be superior, outweighing the injury or damages that might result should the losing party secure a reversal of the judgment. Lesser reasons would make of execution pending appeal, instead of an instrument of solicitude and justice, a tool of oppression and inequity (ROSARIO T. FLORENDO vs. PARAMOUNT INSURANCE CORP., G.R. No. 167976, January 20, 2010, ABAD, J.). 

JUSTICE ROBERTO ABAD: EFFECT OF STRIKING THE TESTIMONY OF A LONE WITNESS

when the plaintiff’s lone witness died due to illness before the adverse witness could cross-examine him, the striking out of the former’s testimony altogether wiped out the required authentication for those exhibits: Since the Estate presented its documentary exhibits and had the same authenticated through Myron’s testimony, it stands to reason that the striking out of the latter’s testimony altogether wiped out the required authentication for those exhibits. They become inadmissible unless the RTC, in its discretion, reopens the trial upon a valid ground and permits the Estate to rectify its mistakes” (SPOUSES DELA CRUZ vs. PAPA IV, G.R. No. 185899, December 8, 2010, ABAD, J.). 

JUSTICE ROBERTO ABAD: THE PRESENCE OF THE ACCUSED IS NOT REQUIRED FOR THE VALIDITY OF THE PRELIMINARY INVESTIGATION.

In Alfredo Romualdez vs. Sandiganbayan, the Supreme Court held that there is no reason which exists for suspending or interrupting the conduct of the forfeiture proceedings before the Sandiganbayan.  It stated that it cannot subscribe to the Romualdezes’ claim that they are entitled to a new preliminary investigation since they had no opportunity to take part in the one held in 1991, in OMB-0-91-0820. The High Court aptly pointed out that:

Respondents admit that the subpoena for that investigation had been sent to their last known residence at the time it was conducted. The Republic also categorically insists that the appropriate subpoena had been served on the Romualdezes. Accordingly, the Ombudsman could not be faulted for proceeding with the investigation of the Romualdezes’ cases when they did not show up despite notice being sent to them at their last known residence.

The New Rules on Criminal Procedure "does not require as a condition sine qua non to the validity of the proceedings [in the preliminary investigation] the presence of the accused for as long as efforts to reach him were made, and an opportunity to controvert the evidence of the complainant is accorded him.

The obvious purpose of the rule is to block attempts of unscrupulous respondents to thwart the prosecution of offenses by hiding themselves or by employing dilatory tactics" (Mercado v. Court of Appeals, 315 Phil. 657, 662 (1995). In sum, there is no reason for suspending or interrupting the conduct of the forfeiture proceedings before the Sandiganbayan. (ALFREDO T. ROMUALDEZ vs. Sandiganbayan, G.R. No. 16160, July 13, 2010, ABAD, J.).