CIRCUMSTANTIAL EVIDENCE

Circumstantial evidence is that evidence which proves a fact or series of facts from which the facts in issue may be established by inference.  According to Rule 133, Section 4 of the Rules, circumstantial evidence is sufficient for conviction if: (1) there is more than one circumstance; (2) the inference is based on proven facts; and (3) the combination of all circumstances produces a conviction beyond reasonable doubt of the guilt of the accused. (PEOPLE vs. BASCUGIN, G.R. No. 184704, June 30, 2009, Third Division, Velasco, Jr., J.).

Direct evidence of the crime is not the only matrix wherefrom a trial court may draw its conclusion and finding of guilt. The rules of evidence allow a trial court to rely on circumstantial evidence to support its conclusion of guilt. Circumstantial evidence is that evidence which proves a fact or series of facts from which the facts in issue may be established by inference. At times, resort to circumstantial evidence is imperative since to insist on direct testimony would, in many cases, result in setting felons free and deny proper protection to the community.   Section 4, Rule 133 of the Rules of Court, provides that circumstantial evidence is sufficient for conviction if the following requisites are complied with:

(1)   There is more than one circumstance;

(2)   The facts from which the inferences are derived are proven; and

(3)   The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. 

All the circumstances must be consistent with one another, consistent with the hypothesis that the accused is guilty, and at the same time inconsistent with the hypothesis that he is innocent. Thus, conviction based on circumstantial evidence can be upheld, provided that the circumstances proven constitute an unbroken chain which leads to one fair and reasonable conclusion that points to the accused, to the exclusion of all others, as the guilty person.

To assay its probative value, circumstantial evidence must be tested against Four (4) necessary guidelines:

x x x x (a) It should be acted upon with caution; (b) All the essential facts must be consistent with the hypothesis of guilt; (c) The facts must exclude every other theory but that of guilt of the accused; and (d) The facts must establish with certainty the guilt of the accused as to convince beyond reasonable doubt that he was the perpetrator of the offense. The peculiarity of circumstantial evidence is that the series of events pointing to the commission of a felony is appreciated not singly but collectively. The guilt of the accused cannot be deduced from scrutinizing just one (1) particular piece of evidence. It is more like a puzzle which when put together reveals a convincing picture pointing to the conclusion that the accused is the author of the crime (PEOPLE vs. RUBIO, G.R. No. 179748, October 2, 2009, Second Division, Carpio Morales, J.).

            In Nover Salvador vs. People of the Philippines, the Supreme Court declared that the individual pieces of evidence may not be sufficient to point to the accused as the author of the crime. However, when taken together, they are more than enough to establish beyond reasonable doubt that the accused has committed the crime of homicide. Thus:

 According to the Supreme Court, prior to the fateful night when Arlenes lifeless body was discovered, several witnesses saw petitioner in possession of a balisong. The NBI autopsy report, in turn, stated that the wounds sustained by Arlene were inflicted with the use of a weapon only one side of which was sharp (such as a balisong). After the discovery of the crime, the balisong was nowhere to be found. Hence, the trial court was correct in its conclusion that the balisong previously seen in petitioners possession was the very weapon used in stabbing the victim. While petitioner admitted owning a different kind of weapon, he failed to produce it in court. As such, it remained a self-serving allegation that cannot be considered to exonerate him from liability.

As to petitioners shirt and briefs, as correctly held by the trial court (and as affirmed by the appellate court), they were found to be stained with type O blood (the victims blood type). Instead of questioning the absence of proof that he was not of the same blood type as the victim, petitioner should have presented evidence that he indeed has type O blood. The fact remains that petitioner offered no explanation why his shirt and briefs contained bloodstains. It is, therefore, correct to conclude that they were stained with the victims blood.

Moreover, the absence of scratches and bruises on petitioner’s body parts does not negate the trial courts conclusion that the victim had the chance to struggle with the petitioner. This is so because, at the time the petitioner attacked the victim between 1:00 and 4:00 in the morning, she was most likely asleep and was only awakened by the petitioner; she was, therefore, not in a position to offer strong resistance. This explains why such struggle produced no bruises and scratches.

The presence of petitioner’s wife inside the house at that time does not likewise negate the commission of the crime. Considering that his wife was a nursing mother who definitely had sleepless nights, she could not be expected to be conscious of everything that happened outside her room.

More importantly, intent to kill was duly established by the witnesses when they testified relative to the peeping incident. Although there was no evidence or allegation of sexual advances, such incident manifested petitioner’s evil motive. It is a rule in criminal law that motive, being a state of mind, is established by the testimony of witnesses on the acts or statements of the accused before or immediately after the commission of the offense, deeds or words that may express it or from which his motive or reason for committing it may be inferred. Motive and intent may be considered one and the same, in some instances, as in the present case.

Lastly, the DNA analysis made by the NBI expert placed the petitioner at the scene of the crime. Such evidence was considered, together with the other circumstances discussed earlier.

Undoubtedly, the individual pieces of evidence may not be sufficient to point to the accused as the author of the crime. However, when taken together, they are more than enough to establish beyond reasonable doubt that petitioner committed the crime of homicide. We would like to emphasize at this point that the peculiarity of circumstantial evidence is that the guilt of the accused cannot be deduced from scrutinizing just one particular piece of evidence. It is more like a puzzle which, when put together, reveals a remarkable picture pointing towards the conclusion that the accused is the author of the crime (NOVER BRYAN SALVADOR y DE LEON. vs. PEOPLE OF THE PHILIPPINES, G.R. No. 164266, July 23, 2008, Third Division, Nachura, J.).

SPECIAL CIVIL ACTION: MANDAMUS A “PREROGATIVE WRIT”

Mandamus is a command issuing from a court of law of competent jurisdiction, in the name of the state or the sovereign, directed to some inferior court, tribunal, or board, or to some corporation or person requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed or from operation of law.

This definition recognizes the public character of the remedy, and clearly excludes the idea that it may be resorted to for the purpose of enforcing the performance of duties in which the public has no interest. The writ is a proper recourse for citizens who seek to enforce a public right and to compel the performance of a public duty, most especially when the public right involved is mandated by the Constitution.

A writ of mandamus is employed to compel the performance, when refused, of a ministerial duty which, as opposed to a discretionary one, is that which an officer or tribunal performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to or the exercise of his or its own judgment upon the propriety or impropriety of the act done (NATIONAL HOME MORTGAGE FINANCE CORP. vs. ABAYARI, G.R. No. 166508, October 2, 2009, Third Division, Peralta, J.).

             The first paragraph of Section 3 of Rule 65 of the Rules of Court pertinently provides:

“SEC. 3. Petition for mandamus.—When any tribunal, corporation, board, officer or person unlawfully neglects the performance of an act which the law specifically enjoins as a duty resulting from an office, trust, or station, or unlawfully excludes another from the use and enjoyment of a right or office to which such other is entitled, and there is no other plain, speedy and adequate remedy in the ordinary course of law, the person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered commanding the respondent, immediately or at some other time to be specified by the court, to do the act required to be done to protect the rights of the petitioner, and to pay the damages sustained by the petitioner by reason of the wrongful acts of the respondent” (emphasis supplied).

As the above-quoted provision instructs, mandamus will lie if the tribunal, corporation, board, officer, or person unlawfully neglects the performance of an act which the law enjoins as a duty resulting from an office, trust or station.

The writ of mandamus, however, will not issue to compel an official to do anything which is not his duty to do or which it is his duty not to do, or to give to the applicant anything to which he is not entitled by law. Nor will mandamus issue to enforce a right which is in substantial dispute or as to which a substantial doubt exists, although objection raising a mere technical question will be disregarded if the right is clear and the case is meritorious.

Stated differently, as a rule, mandamus will not lie in the absence of any of the following grounds: [a] that the court, officer, board, or person against whom the action is taken unlawfully neglected the performance of an act which the law specifically enjoins as a duty resulting from office, trust, or station; or [b] that such court, officer, board, or person has unlawfully excluded petitioner/relator from the use and enjoyment of a right or office to which he is entitled. On the part of the relator, it is essential to the issuance of a writ of mandamus that he should have a clear legal right to the thing demanded and it must be the imperative duty of respondent to perform the act required.

Relative thereto, it is recognized further in this jurisdiction that mandamus cannot be used to enforce contractual obligations. Generally, mandamus will not lie to enforce purely private contract rights, and will not lie against an individual unless some obligation in the nature of a public or quasi-public duty is imposed. The writ is not appropriate to enforce a private right against an individual. The writ of mandamus lies to enforce the execution of an act, when, otherwise, justice would be obstructed; and, regularly, issues only in cases relating to the public and to the government; hence, it is called a prerogative writ. To preserve its prerogative character, mandamus is not used for the redress of private wrongs, but only in matters relating to the public (UY LIAO ENG vs. NIXON LEE, G.R. No. 176831, January 15, 2010, Third Division, Nachura, J.).

Moreover, a favorable judgment rendered in a special civil action for mandamus is in the nature of a special judgment.  As such, it requires the performance of any other act than the payment of money or the sale or delivery of real or personal property the execution of which is governed by Section 11, Rule 39 of the Rules of Court which states:

“SECTION 11. Execution of Special Judgment.—When the judgment requires the performance of any act other than those mentioned in the two preceding sections, a certified copy of the judgment shall be attached to the writ of execution and shall be served by the officer upon the party against whom the same is rendered, or upon any other person required thereby, or by law, to obey the same, and such party or person may be punished for contempt if he disobeys such judgment.” (NATIONAL HOME MORTGAGE FINANCE CORP. vs. ABAYARI, G.R. No. 166508, October 2, 2009, Third Division, Peralta, J.).

            Be that as it may, it has to be emphasized that in the issuance of the writ of mandamus, there should be no plain, speedy and adequate remedy in the ordinary course of law other than the remedy of mandamus being invoked. In other words, mandamus can be issued only in cases where the usual modes of procedure and forms of remedy are powerless to afford relief.   classified as a legal remedy, mandamus is equitable in its nature and its issuance is generally controlled by equitable principles. Indeed, the grant of the writ of mandamus lies in the sound discretion of the court (UY LIAO ENG vs. NIXON LEE, G.R. No. 176831, January 15, 2010, Third Division, Nachura, J.).

PROVISIONAL REMEDIES: PRELIMINARY INJUNCTION

Injunction is a judicial writ, process or proceeding whereby a party is directed either to do a particular act, in which case it is called a mandatory injunction or to refrain from doing a particular act, in which case it is called a prohibitory injunction.

As a main action, injunction seeks to permanently enjoin the defendant through a final injunction issued by the court and contained in the judgment. Section 9, Rule 58 of the 1997 Rules of Civil Procedure, as amended, provides:

“SEC. 9. When final injunction granted. – If after the trial of the action it appears that the applicant is entitled to have the act or acts complained of permanently enjoined, the court shall grant a final injunction perpetually restraining the party or person enjoined from the commission or continuance of the act or acts or confirming the preliminary mandatory injunction” (emphasis supplied).

Two (2) requisites must concur for injunction to issue: (1) there must be a right to be protected and (2) the acts against which the injunction is to be directed are violative of said right. Particularly, in actions involving realty, preliminary injunction will lie only after the plaintiff has fully established his title or right thereto by a proper action for the purpose. To authorize a temporary injunction, the complainant must make out at least a prima facie showing of a right to the final relief.  Preliminary injunction will not issue to protect a right not in esse.  These principles are equally relevant to actions seeking permanent injunction (PHIL. ECONOMIC ZONE AUTHORITY, et al. vs. JOSEPH JUDE CARATES, Et al. G.R. No. 181274, June 23, 2010, Third Division, Villarama, Jr. J.).

An injunctive relief is not intended to determine a controverted right, but is calculated to prevent a further perpetration of wrong or the doing of any act whereby the right in controversy may be materially injured or endangered, until a full and deliberate investigation of the case is afforded to the party (GARCIA, JR. vs. COURT OF APPEALS, G.R. No. 185132, April 24, 2009, Third Division, Nachura, J.).

           

             Parenthetically, before a court grants injunctive relief, the following must be demonstrated: that complainant is entitled to the relief sought, the actual or threatened violation of complainant’s rights, the probability of irreparable injury, and the inadequacy of pecuniary compensation as relief (Golding v. Balatbat, 36 Phil. 941 [1917]).  Otherwise, there is no basis for the issuance of a writ of injunction.

In this connection, it is worthy to note that the applicant must show that it is entitled to the relief sought, and that acts are being undertaken in violation of the applicant’s rights. A preliminary injunction may be granted only where the plaintiff appears to be clearly entitled to the relief sought and has substantial interest in the right sought to be defended. While the existence of the right need not be conclusively established, it must be clear. The standard is even higher in the case of a preliminary mandatory injunction, which should only be granted –

x x x in cases of extreme urgency; where the right is very clear; where considerations of relative inconvenience bear strongly in complainant's favor; where there is a willful and unlawful invasion of plaintiff's right against his protest and remonstrance, the injury being a continuing one; and where the effect of the mandatory injunction is rather to reestablish and maintain a preexisting continuing relation between the parties, recently and arbitrarily interrupted by the defendant, than to establish a new relation x x x.

In Power Sites and Signs, Inc. vs. United Neon, the Supreme Court stated that there is no "irreparable injury" as understood in law.  Rather, the damages alleged by the petitioner, namely, "immense loss in profit and possible damage claims from clients" and the cost of the billboard which is "a considerable amount of money" is easily quantifiable, and certainly does not fall within the concept of irreparable damage or injury as described in Social Security Commission v. Bayona, 115 Phil. 105, 110 (1962):

“Damages are irreparable within the meaning of the rule relative to the issuance of injunction where there is no standard by which their amount can be measured with reasonable accuracy."

An irreparable injury which a court of equity will enjoin includes that degree of wrong of a repeated and continuing kind which produce hurt, inconvenience, or damage that can be estimated only by conjecture, and not by any accurate standard of measurement". An irreparable injury to authorize an injunction consists of a serious charge of, or is destructive to, the property it affects, either physically or in the character in which it has been held and enjoined, or when the property has some peculiar quality or use, so that its pecuniary value will not fairly recompense the owner of the loss thereof. (Emphasis supplied)

 Evidently, a writ of preliminary injunction should be issued only to prevent grave and irreparable injury, that is, injury that is actual, substantial, and demonstrable. Since any damage petitioner may suffer is easily subject to mathematical computation and, if proven, is fully compensable by damages, a preliminary injunction is not warranted. As previously held in Golding v. Balatbat, 36 Phil. 941 (1917), the writ of injunction ––should never issue when an action for damages would adequately compensate the injuries caused. The very foundation of the jurisdiction to issue the writ rests in the probability of irreparable injury, the inadequacy of pecuniary compensation, and the prevention of the multiplicity of suits, and where facts are not shown to bring the case within these conditions, the relief of injunction should be refused (POWER SITES AND SIGNS, INC. vs. UNITED NEON, G.R. No. 163406, November 24, 2009, Second Division, Del Castillo, J.).

CRIMINAL PROCEDURE: PLAIN VIEW DOCTRINE

Under the plain view doctrine, objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be presented as evidence.  

The plain view doctrine applies when the following requisites concur: (1) the law enforcement officer in search of the evidence has a prior justification for an intrusion or is in a position from which he can view a particular area; (2) the discovery of the evidence in plain view is inadvertent; and (3) it is immediately apparent to the officer that the item he observes may be evidence of a crime, contraband or otherwise subject to seizure. 

In Abelita III vs. Doria, the Supreme Court stated that the police officers were justified in seizing the firearms because the police authorities were in the area because that was where they caught up with petitioner after the chase. They saw the firearms inside the vehicle when petitioner opened the door. Since a shooting incident just took place and it was reported that petitioner was involved in the incident, it was apparent to the police officers that the firearms may be evidence of a crime. Hence, they were justified in seizing the firearms (ABELITA III vs. DORIA, G.R. No. 170672, August 14, 2009, First Division, Carpio, J.).

Relative thereto, it bears emphasis that the "plain view doctrine" may not be used to launch unbridled searches and indiscriminate seizures or to extend a general exploratory search made solely to find evidence of defendant’s guilt. The doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. (VALEROSO vs. COURT OF APPEALS, G.R. No. 164815, September 3, 2009, Third Divisio, Nachura, J.).

As the Supreme Court enunciated in People v. Cubcubin, Jr. (413 Phil 249 (2001), and  and People v. Leangsiri, 322 Phil. 226 (1996):

“What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which[,] he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification – whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused – and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges”(People v. Cubcubin, Jr. (413 Phil 249 (2001), and  and People v. Leangsiri, 322 Phil. 226 (1996) cited in VALEROSO vs. COURT OF APPEALS, G.R. No. 164815, September 3, 2009, Third Division, Nachura, J.).

CRIMINAL PROCEDURE: SEARCH INCIDENTAL TO A LAWFUL ARREST

Searches and seizures incident to lawful arrests are governed by Section 13, Rule 126 of the Rules of Court. Thus:

“SEC. 13. Search incident to lawful arrest. – A person lawfully arrested may be searched for dangerous weapons or anything which may have been used or constitute proof in the commission of an offense without a search warrant.”

In People v. Leangsiri, 322 Phil. 226 (1996), People v. Cubcubin, Jr. (413 Phil 249 (2001), and People v. Estella, the Supreme Court had the occasion to lay down the parameters of a valid warrantless search and seizure as an incident to a lawful arrest.

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapon that the latter might use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.

Moreover, in lawful arrests, it becomes both the duty and the right of the apprehending officers to conduct a warrantless search not only on the person of the suspect, but also in the permissible area within the latter’s reach. Otherwise stated, a valid arrest allows the seizure of evidence or dangerous weapons either on the person of the one arrested or within the area of his immediate control. The phrase "within the area of his immediate control" means the area from within which he might gain possession of a weapon or destructible evidence. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. xxxxxxx

In the case of Valeroso vs. Court of Appeals, Valeroso was arrested by virtue of a warrant of arrest allegedly for kidnapping with ransom. At that time, Valeroso was sleeping inside the boarding house of his children. He was awakened by the arresting officers who were heavily armed. They pulled him out of the room, placed him beside the faucet outside the room, tied his hands, and then put him under the care of Disuanco. The other police officers remained inside the room and ransacked the locked cabinet where they found the subject firearm and ammunition. With such discovery, Valeroso was charged with illegal possession of firearm and ammunition.

From the foregoing narration of facts, we can readily conclude that the arresting officers served the warrant of arrest without any resistance from Valeroso. They placed him immediately under their control by pulling him out of the bed, and bringing him out of the room with his hands tied. To be sure, the cabinet which, according to Valeroso, was locked, could no longer be considered as an "area within his immediate control" because there was no way for him to take any weapon or to destroy any evidence that could be used against him.

The arresting officers would have been justified in searching the person of Valeroso, as well as the tables or drawers in front of him, for any concealed weapon that might be used against the former. But under the circumstances obtaining, there was no comparable justification to search through all the desk drawers and cabinets or the other closed or concealed areas in that room itself.

It is worthy to note that the purpose of the exception (warrantless search as an incident to a lawful arrest) is to protect the arresting officer from being harmed by the person arrested, who might be armed with a concealed weapon, and to prevent the latter from destroying evidence within reach. The exception, therefore, should not be strained beyond what is needed to serve its purpose.

Evidently, since the search was made in the locked cabinet which cannot be said to have been within Valeroso’s immediate control, the search exceeded the bounds of what may be considered as an incident to a lawful arrest. 

Ergo, the search made was illegal, a violation of Valeroso’s right against unreasonable search and seizure. Consequently, the evidence obtained in violation of said right is inadmissible in evidence against him. 

Moreover, the Supreme Court succinctly stated that because a warrantless search is in derogation of a constitutional right, peace officers who conduct it cannot invoke regularity in the performance of official functions (VALEROSO vs. COURT OF APPEALS, G.R. No. 164815, September 3, 2009, Third Division, Nachura, J.).

CRIMINAL PROCEDURE: THE RIGHT AGAINST UNREASONABLE SEARCHES AND SEIZURES

              The right against unreasonable searches and seizures is secured by Section 2, Article III of the Constitution which states:

“SEC. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized” (emphasis supplied).

From this constitutional provision, it can readily be gleaned that, as a general rule, the procurement of a warrant is required before a law enforcer can validly search or seize the person, house, papers, or effects of any individual.

To underscore the significance the law attaches to the fundamental right of an individual against unreasonable searches and seizures, the Constitution succinctly declares in Article III, Section 3(2) that "any evidence obtained in violation of this or the preceding section shall be inadmissible in evidence for any purpose in any proceeding."

The above proscription is not, however, absolute. The following are the well-recognized instances where searches and seizures are allowed even without a valid warrant:

1.    Warrantless search incidental to a lawful arrest:

2. [Seizure] of evidence in "plain view." The elements are: a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties; b) the evidence was inadvertently discovered by the police who have the right to be where they are; c) the evidence must be immediately apparent; and d) "plain view" justified mere seizure of evidence without further search;

3. Search of a moving vehicle. Highly regulated by the government, the vehicle’s inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity;

4. Consented warrantless search;

5. Customs search;

6. Stop and Frisk;

7. Exigent and emergency circumstances.

8. Search of vessels and aircraft; [and]

9. Inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations.

In the exceptional instances where a warrant is not necessary to effect a valid search or seizure, what constitutes a reasonable or unreasonable search or seizure is purely a judicial question, determinable from the uniqueness of the circumstances involved, including the purpose of the search or seizure, the presence or absence of probable cause, the manner in which the search and seizure was made, the place or thing searched, and the character of the articles procured. (VALEROSO vs. COURT OF APPEALS, G.R. No. 164815, September 3, 2009, Third Division, Nachura, J.).

APPEALS: CAN THE FRESH PERIOD RULE (NEYPES DOCTRINE) BE GIVEN RETROACTIVE EFFECT? OTHERWISE STATED, DOES IT APPLY TO ALL CASES PENDING AT THE TIME OF ITS PASSAGE?

 yES. The retroactivity of the Neypes rule in cases where the period for appeal had lapsed prior to the date of promulgation of Neypes on September 14, 2005, was clearly explained by the Court in Fil-Estate Properties, Inc. v. Homena-Valencia, G.R. No. 173942, June 25, 2008, stating thus:

“The determinative issue is whether the fresh period rule announced in Neypes could retroactively apply in cases where the period for appeal had lapsed prior to 14 September 2005 when Neypes was promulgated. That question may be answered with the guidance of the general rule that procedural laws may be given retroactive effect to actions pending and undetermined at the time of their passage, there being no vested rights in the rules of procedure” (emphasis supplied). 

Amendments to procedural rules are procedural or remedial in character as they do not create new or remove vested rights, but only operate in furtherance of the remedy or confirmation of rights already existing. 

In Sumiran vs. Damaso, the Supreme Court stated that since this case was already pending in this Court at the time of promulgation of Neypes, then, ineluctably, the Court must also apply the ruling to the present case. Ergo, petitioner is entitled to a fresh period of 15 days − counted from May 19, 2003, the date of petitioners receipt of the Order denying his motion for reconsideration of the RTC Decision − within which to file his notice of appeal. Therefore, when he filed said notice on May 29, 2003, or only ten (10) days after receipt of the Order denying his motion for reconsideration, his period to appeal had not yet lapsed (SUMIRAN vs. DAMASO, G.R. No. 162518, August, 19, 2009, Third Division, Peralta, J.).

APPEAL: APPLICATION OF THE FRESH PERIOD RULE (NEYPES DOCTRINE)

As early as 2005, the Supreme Court categorically declared in Neypes v. Court of Appeals, G.R. No. 141524, September 14, 2005, 469 SCRA 633 that by virtue of its power to amend, repeal and create new procedural rules in all courts, the High Court is allowing a fresh period of 15 days within which to file a notice of appeal in the RTC, counted from receipt of the order dismissing or denying a motion for new trial or motion for reconsideration. This would standardize the appeal periods provided in the Rules and do away with the confusion as to when the 15-day appeal period should be counted. Thus, the Court stated:

“To standardize the appeal periods provided in the Rules and to afford litigants fair opportunity to appeal their cases, the Court deems it practical to allow a fresh period of 15 days within which to file the notice of appeal in the Regional Trial Court, counted from receipt of the order dismissing a motion for a new trial or motion for reconsideration. xxxx

Henceforth, this "fresh period rule" shall also apply to Rule 40 governing appeals from the Municipal Trial Courts to the Regional Trial Courts; Rule 42 on petitions for review from the Regional Trial Courts to the Court of Appeals; Rule 43 on appeals from quasi-judicial agencies to the Court of Appeals and Rule 45 governing appeals by certiorari to the Supreme Court.

The new rule aims to regiment or make the appeal period uniform, to be counted from receipt of the order denying the motion for new trial, motion for reconsideration (whether full or partial) or any final order or resolution.

x x x x  To recapitulate, a party-litigant may either file his notice of appeal within 15 days from receipt of the Regional Trial Courts decision or file it within 15 days from receipt of the order (the final order) denying his motion for new trial or motion for reconsideration. Obviously, the new 15-day period may be availed of only if either motion is filed; otherwise, the decision becomes final and executory after the lapse of the original appeal period provided in Rule 41, Section 3.”   

With the advent of the "fresh period rule," parties who availed themselves of the remedy of motion for reconsideration are now allowed to file a notice of appeal within fifteen days from the denial of that motion.

The fresh period rule is not inconsistent with Rule 41, Section 3 of the Revised Rules of Court which states that the appeal shall be taken within fifteen (15) days from notice of judgment or final order appealed from. The use of the disjunctive word or signifies disassociation and independence of one thing from another.  It should, as a rule, be construed in the sense which it ordinarily implies. Hence, the use of or in the above provision supposes that the notice of appeal may be filed within 15 days from the notice of judgment or within 15 days from notice of the final order.

x x x x

The fresh period rule finally eradicates the confusion as to when the 15-day appeal period should be counted from receipt of notice of judgment or from receipt of notice of final order appealed from.

 Taking bearings from Neypes, in Sumaway v. Urban Bank, Inc., the Supreme Court set aside the denial of a notice of appeal which was purportedly filed five days late. With the fresh period rule, the 15-day period within which to file the notice of appeal was counted from notice of the denial of the therein petitioners motion for reconsideration.

This was followed in Elbia v. Ceniza, wherein the Supreme Court applied the principle granting a fresh period of 15 days within which to file the notice of appeal, counted from receipt of the order dismissing a motion for new trial or motion for reconsideration or any final order or resolution.

Thereafter, in First Aqua Sugar Traders, Inc. v. Bank of the Philippine Islands, it held that a party-litigant may now file his notice of appeal either within fifteen days from receipt of the original decision or within fifteen days from the receipt of the order denying the motion for reconsideration.  

In De los Santos v. Vda. de Mangubat, the Supreme Court also applied the same principle of fresh period rule, expostulating that procedural law refers to the adjective law which prescribes rules and forms of procedure in order that courts may be able to administer justice. Procedural laws do not come within the legal conception of a retroactive law, or the general rule against the retroactive operation of statutes. The "fresh period rule" is irrefragably procedural, prescribing the manner in which the appropriate period for appeal is to be computed or determined and, therefore, can be made applicable to actions pending upon its effectivity, without danger of violating anyone else rights. (SUMIRAN vs. DAMASO, G.R. No. 162518, August, 19, 2009, Third Division, Peralta, J.).

EVIDENCE: RETRACTION OF TESTIMONY BY A WITNESS

Courts do not generally look with favor on any retraction or recanted testimony, for it could have been secured by considerations other than to tell the truth and would make solemn trials a mockery and place the investigation of the truth at the mercy of unscrupulous witnesses. A recantation does not necessarily cancel an earlier declaration, but like any other testimony the same is subject to the test of credibility and should be received with caution (Francisco v. National Labor Relations Commission, G.R. No. 170087, August 31, 2006, 500 SCRA 690, 701-702). 

x x x  The mere fact that a witness says that what he had declared is false and what he now says is true, is not sufficient ground for concluding that the previous testimony is false. No such reasoning has ever crystallized into a rule of credulity. The rule is that a witness may be impeached by a previous contradictory statement (Section 13, Rule 132, Rules of Court): not that a previous testimony is presumed to be false merely because a witness now says that the same is false (People v. Mindac, G.R. No. 83030, December 14, 1992, 216 SCRA 558, 572) (KAUNLARAN LENDING INVESTORS, INC. and LELIA CHUASY vs. LORETA UY, GR. No. 154974, February 4, 2008, 2nd Division, Carpio Morales, J.).

CIVIL PROCEDURE: NOTICE OF LIS PENDENS

 A notice of lis pendens is an announcement to the whole world that a particular real property is in litigation, serving as a warning that one who acquires interest over said property does so at his own risk, or that he gambles on the result of the litigation over the said property. The filing of a notice of lis pendens charges all strangers with notice of the particular litigation referred to therein and, therefore, any right they may thereafter acquire over the property is subject to the eventuality of the suit. Such announcement is founded upon public policy and necessity, the purpose of which is to keep the properties in litigation within the power of the court until the litigation is terminated and to prevent the defeat of the judgment or decree by subsequent alienation.

As a general rule, the only instances in which a notice of lis pendens may be availed of are as follows: (a) an action to recover possession of real estate; (b) an action for partition; and (c) any other court proceedings that directly affect the title to the land or the building thereon or the use or the occupation thereof. Additionally, this Court has held that resorting to lis pendens is not necessarily confined to cases that involve title to or possession of real property. This annotation also applies to suits seeking to establish a right to, or an equitable estate or interest in, a specific real property; or to enforce a lien, a charge or an encumbrance against it (LU vs. LU YM, Sr. G.R. No. 153690, August 4, 2009, Special 3rd Division, Nachura, J.).

GENERAL PRINCIPLE: NOTICE TO THE COUNSEL OF RECORD MEANS NOTICE TO THE CLIENT. HOWEVER, THE OMISSION OR NEGLIGENCE OF SAID COUNSEL BINDS THE CLIENT.

As a general rule, when a party is represented by a counsel, service of orders and notices must be made upon said counsel of record and notice to the client and to any other lawyer, not the counsel of record, is not notice in law.

The exception to this rule is when service upon the party himself has been ordered by the court. In case therefore the service was already made on the counsel of record at his given address, notice to client himself is no longer necessary (SPOUSES DOMINGO M. BELEN, ET. AL., vs. HON. PABLO R. CHAVEZ, et al. G.R. No. 175334, March 26, 2008, Second Division, Tinga, J.).

          In other words, when a party is represented by a counsel, notices of all kinds, including motions, pleadings and orders, must be served on the counsel of record himself, and notice to the said counsel is binding on the client.

Be that as it may, the omission or negligence of counsel binds the client.  Thus, the neglect or failure of counsel to inform the client of an adverse judgment resulting in the loss of his right to appeal is not a ground for setting aside a judgment, valid and regular on its face. 

This is more true if the client did not make a periodic check on the progress of her case. Otherwise, there would be no end to a suit, so long as a new counsel could be employed who would allege and show that the prior counsel had not been sufficiently diligent, experienced, or learned.

This was precisely the tenor of the pronouncement of the Supreme Court in Mapagay vs. People, where it was observed that there was no showing that petitioner had constantly followed up her case with the counsel of record.  Petitioner did not even bother to call or personally go to the court to verify the progress of her case. Undeniably, petitioner did not exercise diligence in pursuing her case (MAPAGAY vs. PEOPLE, G.R. No. 178984, August 19, 2009, Chico-Nazario, J.).

This doctrine is of course without prejudice to the exceptions laid down in the several pronouncements of the Supreme Court. 

In Salonga vs. Court of Appeals, 269 SCRA 534 and San Miguel Corporation vs. Laguesma, 236 SCRA 595, the High court emphasized that where the negligence of a counsel amounts to a deprivation of due process for the client or results to serious injustice, the said negligence of counsel does not bind the client.

CIVIL PROCEDURE: IF THE PROPERTY IS UNDER THE STATE OF CO-OWNERSHIP, CAN A SUIT FOR EJECTMENT BE BROUGHT WITHOUT IMPLEADING THE OTHER CO-OWNERS? MOREOVER, IN THE SAME SUIT, ARE THE CO-OWNERS CONSIDERED INDISPENSABLE PARTIES?

          When the controversy involves a property held in common, Article 487 of the New Civil Code explicitly provides that "any one of the co-owners may bring an action in ejectment." 

The Supreme Court however clarified in Vencilao v. Camarenta that the term "action in ejectment" includes a suit for forcible entry (detentacion) or unlawful detainer (desahucio).  In Sering v. Plazo and Estreller v. Ysmael, it also noted that the term "action in ejectment" includes", an accion publiciana (recovery of possession) or accion reinvidicatoria (recovery of ownership)." And, in Plasabas v. Court of Appeals G.R. No. 166519, March 31, 2009, it empathically stated that Article 487 of the Civil Code covers all kinds of actions for the recovery of possession, including an accion publiciana and a reivindicatory action. 

Thus, a co-owner may file suit without necessarily joining all the other co-owners as co-plaintiffs because the suit is deemed to be instituted for the benefit of all. Any judgment of the court in favor of the plaintiff will benefit the other co-owners, but if the judgment is adverse, the same cannot prejudice the rights of the unimpleaded co-owners.   

Put differently, the Supreme Court in several occasion, has upheld the right of a co-owner to file a suit without impleading other co-owners, pursuant to Article 487 of the Civil Code.

Be that as it may, in order to clarify this issue, the Supreme Court in MARMO vs. ANACAY, G.R. No. 182585, November 27, 2009, invariably stated:

“We made this ruling in Vencilao, where the amended complaint for "forcible entry and detainer" specified that the plaintiff is one of the heirs who co-owns the disputed properties. In Sering, and Resuena v. Court of Appeals, the co-owners who filed the ejectment case did not represent themselves as the exclusive owners of the property. In Celino v. Heirs of Alejo and Teresa Santiago, the complaint for quieting of title was brought in behalf of the co-owners precisely to recover lots owned in common. In Plasabas, the plaintiffs alleged in their complaint for recovery of title to property (accion reivindicatoria) that they are the sole owners of the property in litigation, but acknowledged during the trial that the property is co-owned with other parties, and the plaintiffs have been authorized by the co-owners to pursue the case on the latter’s behalf” (emphasis supplied).

Proceeding from such premise, the Supreme Court clarified that the foregoing cases should be distinguished from Baloloy v. Hular 481 Phil. 398 (2004) and Adlawan v. Adlawan G.R. No. 161916, January 20, 2006, 479 SCRA 275, where the actions for quieting of title and unlawful detainer, respectively, were brought for the benefit of the plaintiff alone who claimed to be the sole owner.  The High Court held that the action will not prosper unless the plaintiff impleaded the other co-owners who are indispensable parties. Thus, in these cases, the absence of an indispensable party rendered all subsequent actions of the court null and void for want of authority to act, not only as to the absent parties but even as to those present.

However, in order to put things in its proper perspective, the Supreme Court stated that we have to read the aforementioned cases to collectively mean that where the suit is brought by a co-owner, without repudiating the co-ownership, then the suit is presumed to be filed for the benefit of the other co-owners and may proceed without impleading the other co-owners. 

On the other hand, where the co-owner repudiates the co-ownership by claiming sole ownership of the property or where the suit is brought against a co-owner, his co-owners are indispensable parties and must be impleaded as party-defendants, as the suit affects the rights and interests of these other co-owners.

Otherwise stated, if the co-owner of a property who brought the action does not repudiate the co-ownership, then the other co-owner are not considered as indispensable parties to the resolution of the case.

As the Supreme Court aptly pointed out in Carandang v. Heirs of De Guzman, G.R. No. 160347, November 29, 2006, 508 SCRA 469, 487-488, in cases like this, the co-owners are not even necessary parties, for a complete relief can be accorded in the suit even without their participation, since the suit is presumed to be filed for the benefit of all. (MARMO vs. ANACAY, G.R. No. 182585, November 27, 2009, Second Division, Brion, J.).