VICTOR ORQUIOLA and HONORATA ORQUIOLA,petitioners,vs.HON. COURT OF APPEALS, HON. VIVENCIO S. BACLIG, Presiding Judge, Regional Trial Court, Branch 77, Quezon City, THE SHERIFF OF QUEZON CITY and HIS/HER DEPUTIES and PURA KALAW LEDESMA, substituted by TANDANG SORA DEVELOPMENT CORPORATION,respondents.QUISUMBING,J.:This petition for review seeks the reversal of the decision1of the Court of Appeals dated January 28, 1999 in CA-G.R. SP No. 47422, which dismissed the petition to prohibit Judge Vivencio Baclig of the Regional Trial Court of Quezon City, Branch 77, from issuing a writ of demolition against petitioners, and the sheriff and deputy sheriff of the same court from implementing an alias writ of execution. Also assailed is the resolution2of the Court of Appeals dated December 29, 1999 which denied petitioners motion for reconsideration.The facts are as follows:Pura Kalaw Ledesma was the registered owner of Lot 689, covered by TCT Nos. 111267 and 111266, in Tandang Sora, Quezon City. This parcel of land was adjacent to certain portions of Lot 707 of the Piedad Estates, namely, Lot 707-A and 707-B, registered in the name of Herminigilda Pedro under TCT Nos. 16951 and 16952, respectively. On October 29, 1964, Herminigilda sold Lot 707-A and 707-B to Mariano Lising who then registered both lots and Lot 707-C in the name of M.B. Lising Realty and subdivided them into smaller lots.1wphi1.ntCertain portions of the subdivided lots were sold to third persons including herein petitioners, spouses Victor and Honorata Orquiola, who purchased a portion of Lot 707-A-2, Lot 5, Block 1 of the subdivision plan (LRC), Psd-42965. The parcel is now #33 Doa Regina St., Regina Village, Tandang Sora, Quezon City. The other portions were registered in the name of the heirs of Pedro, heirs of Lising, and other third persons.Sometime in 1969, Pura Kalaw Ledesma filed a complaint, docketed as Civil Case No. Q-12918, with the Regional Trial Court of Quezon City against Herminigilda Pedro and Mariano Lising for allegedly encroaching upon Lot 689. During the pendency of the action, Tandang Sora Development Corporation replaced Pura Kalaw Ledesma as plaintiff by virtue of an assignment of Lot 689 made by Ledesma in favor of said corporation. Trial continued for three decades.On August 21, 1991, the trial court finally adjudged defendants Pedro and Lising jointly and severally liable for encroaching on plaintiffs land and ordered them:(a) to solidarily pay the plaintiff Tandang Sora Dev. Corp. actual damages in the amount of P20,000 with interest from date of filing of the complaint;(b) to remove all construction, including barbed wires and fences, illegally constructed by defendants on plaintiffs property at defendants expense;(c) to replace the removed concrete monuments removed by defendants, at their own expense;(d) to pay attorneys fees in the amount of FIVE THOUSAND PESOS (P5,000.00) with interest computed from the date of filing of the complaint;(e) to relocate the boundaries to conform with the Commissioners Report, particularly, Annexes "A" and "B" thereof, at the expense of the defendants.3As a result, in February 1998, the Deputy Sheriff of Quezon City directed petitioners, through analiaswrit of execution, to remove the house they constructed on the land they were occupying.On April 2, 1998, petitioners received a Special Order dated March 30, 1998, from the trial court stating as follows:Before the Court for resolution is the "Ex-Parte Motion For The Issuance of A Writ of Demolition," filed by plaintiff, through counsel, praying for the issuance of an Order directing the Deputy Sheriff to cause the removal and/or demolition of the structures on the plaintiffs property constructed by defendants and/or the present occupants. The defendants-heirs of Herminigilda Pedro filed their comment on the said Motion.Considering that the decision rendered in the instant case had become final and executory, the Court, in its Order of November 14, 1997, directed the issuance of an alias writ of execution for the enforcement of the said decision. However, despite the service of the said writ to all the defendants and the present occupants of the subject property, they failed to comply therewith, as per the Partial Sheriffs Return, dated February 9, 1998, issued by the Deputy Sheriff of this branch of the Court. Thus, there is now a need to demolish the structures in order to implement the said decision.WHEREFORE, the defendants are hereby directed to remove, at their expense, all constructions, including barbed wires and fences, which defendants constructed on plaintiffs property, within fifteen (15) days from notice of this Order; otherwise, this Court will issue a writ of demolition against them.SO ORDERED.4To prohibit Judge Vivencio Baclig of the Regional Trial Court of Quezon City from issuing a writ of demolition and the Quezon City sheriff from implementing thealiaswrit of execution, petitioners filed with the Court of Appeals a petition for prohibition with prayer for a restraining order and preliminary injunction on April 17, 1998.5Petitioners alleged that they bought the subject parcel of land in good faith and for value, hence, they were parties in interest. Since they were not impleaded in Civil Case No. Q-12918, the writ of demolition issued in connection therewith cannot be enforced against them because to do so would amount to deprivation of property without due process of law.The Court of Appeals dismissed the petition on January 28, 1999. It held that as buyers and successors-in-interest of Mariano Lising, petitioners were considered privies who derived their rights from Lising by virtue of the sale and could be reached by the execution order in Civil Case No. Q-12918. Thus, for lack of merit, the petition was ordered dismissed.6Petitioners motion for reconsideration was denied. Hence, this petition, where petitioners aver that:I.THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE DECISION IN CIVIL CASE NO. Q-12918 CAN ALSO BE ENFORCED AGAINST THE PETITIONERS EVEN IF THEY WERE NOT IMPLEADED AS PARTIES THERETO.II.THE HONORABLE COURT OF APPEALS ERRED IN NOT UPHOLDING PETITIONERS TITLE DESPITE THEIR BEING BUILDER IN GOOD FAITH AND INNOCENT PURCHASER AND FOR VALUE.III.PETITIONERS ARE ENTITLED TO INJUNCTIVE RELIEF CONSIDERING THAT THEY STAND TO SUFFER GRAVE AND IRREPARABLE INJURY IF ALIAS WRIT OF EXECUTION AND THE SPECIAL ORDER ISSUED BY THE COURT A QUO IN CIVIL CASE NO. Q-12918 FOR THE DEMOLITION OF ALL THE STRUCTURES ON THE DISPUTED PROPERTY WERE ENFORCED AGAINST THE PETITIONERS WHO WERE NOT EVEN GIVEN THEIR DAY IN COURT.7For our resolution are the following issues: (1) whether thealiaswrit of execution may be enforced against petitioners; and (2) whether petitioners were innocent purchasers for value and builders in good faith.On the first issue, petitioners claim that thealiaswrit of execution cannot be enforced against them. They argue that the appellate court erred when it relied heavily on our ruling inVda. de Medina vs. Cruz8in holding that petitioners are successors-in-interest of Mariano Lising, and as such, they can be reached by the order of execution in Civil Case No. Q-12918 even though they were not impleaded as parties thereto. Petitioners submit thatMedinais not applicable in this case because the circumstances therein are different from the circumstances in the present case.InMedina, the property in dispute was registered under Land Registration Act No. 496 in 1916 and Original Certificate of Title No. 868 was issued in the name of Philippine Realty Corporation (PRC). In 1949, Benedicta Mangahas and Francisco Ramos occupied and built houses on the lot without the PRCs consent. In 1959, PRC sold the lot to Remedios Magbanua. Mangahas and Ramos opposed and instituted Civil Case No. C-120 to annul the sale and to compel PRC to execute a contract of sale in their favor. The trial court dismissed the complaint and ordered Mangahas and Ramos to vacate the lot and surrender possession thereof to Magbanua. The judgment became final and executory. When Magbanua had paid for the land in full, PRC executed a deed of absolute sale in her favor and a new title was consequently issued in her name. Magbanua then sought the execution of the judgment in Civil Case No. C-120. This was opposed by petitioner Medina who alleged that she owned the houses and lot subject of the dispute. She said that she bought the houses from spouses Ricardo and Eufrocinia de Guzman, while she purchased the lot from the heirs of the late Don Mariano San Pedro y Esteban. The latter held the land by virtue of aTitulo de Composicion Con El Estado Num. 4136, dated April 29, 1894. In opposing the execution, Medina argued that the trial court did not acquire jurisdiction over her, claiming that she was not a party in Civil Case No. C-120, thus, she could not be considered as "a person claiming under" Ramos and Mangahas.WhenMedinareached this Court, we held that the decision in Civil Case No. C-120, which had long become final and executory, could be enforced against petitioner even though she was not a party thereto. We found that the houses on the subject lot were formerly owned by Mangahas and Ramos who sold them to spouses de Guzman, who in turn sold them to Medina. Under the circumstances, petitioner was privy to the two judgment debtors Mangahas and Ramos, and thus Medina could be reached by the order of execution and writ of demolition issued against the two. As to the lot under dispute, we sustained Magbanuas ownership over it, she being the holder of a Torrens title. We declared that a Torrens title is generally conclusive evidence of ownership of the land referred to therein, and a strong presumption exists that a Torrens title was regularly issued and valid. A Torrens title is incontrovertible against anyinformacion possessoria, or other title existing prior to the issuance thereof not annotated on the Torrens title. Moreover, persons dealing with property covered by a Torrens certificate of title are not required to go beyond what appears on its face.Medinamarkedly differs from the present case on major points.First, the petitioner inMedinaacquired the right over the houses and lot subject of the disputeafterthe original action was commenced and became final and executory. In the present case, petitioners acquired the lotbeforethe commencement of Civil Case No. Q-12918.Second, the right over the disputed land of the predecessors-in-interest of the petitioner inMedinawas based on a title of doubtful authenticity, allegedly aTitulo de Composicion Con El Estadoissued by the Spanish Government in favor of one Don Mariano San Pedro y Esteban, while the right over the land of the predecessors-in-interest of herein petitioners is based on a fully recognized Torrens title.Third, petitioners in this case acquired the registered title in their own names, while the petitioner inMedinamerely relied on the title of her predecessor-in-interest and tax declarations to prove her alleged ownership of the land.We must stress that where a case like the present one involves a sale of a parcel of land under the Torrens system, the applicable rule is that a person dealing with the registered property need not go beyond the certificate of title; he can rely solely on the title and he is charged with notice only of such burdens and claims as are annotated on the title.9It is our view here that the petitioners, spouses Victor and Honorata Orquiola, are fully entitled to the legal protection of their lot by the Torrens system, unlike the petitioner in theMedinacase who merely relied on a mereTitulo de Composicion.Coming now to the second issue, were petitioners purchasers in good faith and for value? A buyer in good faith is one who buys the property of another without notice that some other person has a right to or interest in such property. He is a buyer for value if he pays a full and fair price at the time of the purchase or before he has notice of the claim or interest of some other person in the property.10The determination of whether one is a buyer in good faith is a factual issue which generally is outside the province of this Court to determine in a petition for review. An exception is when the Court of Appeals failed to take into account certain relevant facts which, if properly considered, would justify a different conclusion.11The instant case is covered by this exception to the general rule. As found by the Court of Appeals and not refuted by private respondent, petitioners purchased the subject land in 1964 from Mariano Lising.12Civil Case No. Q-12918 was commenced sometime in 1969. The Court of Appeals overlooked the fact that the purchase of the land took place prior to the institution of Civil Case No. Q-12918. In other words, the sale to petitioners was made before Pura Kalaw Ledesma claimed the lot. Petitioners could reasonably rely on Mariano Lisings Certificate of Title which at the time of purchase was still free from any third party claim. Hence, considering the circumstances of this case, we conclude that petitioners acquired the land subject of this dispute in good faith and for value.The final question now is: could we consider petitioners builders in good faith? We note that this is the first time that petitioners have raised this issue. As a general rule, this could not be done. Fair play, justice, and due process dictate that parties should not raise for the first time on appeal issues that they could have raised but never did during trial and even during proceedings before the Court of Appeals.13Nevertheless, we deem it proper that this issue be resolved now, to avoid circuitous litigation and further delay in the disposition of this case. On this score, we find that petitioners are indeed builders in good faith.A builder in good faith is one who builds with the belief that the land he is building on is his, and is ignorant of any defect or flaw in his title.14As earlier discussed, petitioner spouses acquired the land in question without knowledge of any defect in the title of Mariano Lising. Shortly afterwards, they built their conjugal home on said land. It was only in 1998, when the sheriff of Quezon City tried to execute the judgment in Civil Case No. Q-12918, that they had notice of private respondents adverse claim. The institution of Civil Case No. Q-12918 cannot serve as notice of such adverse claim to petitioners since they were not impleaded therein as parties.As builders in good faith and innocent purchasers for value, petitioners have rights over the subject property and hence they are proper parties in interest in any case thereon.15Consequently, private respondents should have impleaded them in Civil Case No. Q-12918. Since they failed to do so, petitioners cannot be reached by the decision in said case. No man shall be affected by any proceeding to which he is a stranger, and strangers to a case are not bound by any judgment rendered by the court. In the same manner, a writ of execution can be issued only against a party and not against one who did not have his day in court. Only real parties in interest in an action are bound by the judgment therein and by writs of execution and demolition issued pursuant thereto.16In our view, the spouses Victor and Honorata Orquiola have valid and meritorious cause to resist the demolition of their house on their own titled lot, which is tantamount to a deprivation of property without due process of law.1wphi1.ntWHEREFORE, the petition isGRANTED. The decision of the Court of Appeals dated January 28, 1999, and its resolution dated December 29, 1999, in CA-G.R. SP No. 47422, areREVERSEDandSET ASIDE. Respondents are hereby enjoined from enforcing the decision in Civil Case No. Q-12918 through a writ of execution and order of demolition issued against petitioners. Costs against private respondent.SO ORDERED.Bellosillo, Mendoza, and Corona, JJ., concur.

PEOPLE OF THE PHILIPPINES,plaintiff-appellee,vs.ROBERT CASTILLO y MONES,accused-appellant.PANGANIBAN,J.:The trial court judge is not an idle arbiter during a trial. He can propound clarificatory questions to witnesses in order to ferret out the truth. The impartiality of a judge cannot be assailed on the mere ground that he asked such questions during the trial.The CaseThis is an appeal from the Decision1dated December 23, 1994 of the Regional Trial Court of Quezon City, Branch 88, in Criminal Case No. Q-93-45235 convicting Robert Castillo y Mones of murder and sentencing him toreclusion perpetua.2On July 23, 1993, an amended Information3was filed by Assistant City Prosecutor Ralph S. Lee, charging appellant with murder allegedly committed as follows:That on or about the 25th day of May, 1993, in Quezon City, Philippines, the above-named accused, with intent to kill[,] qualified by evident premeditation, use of superior strength and treachery did then and there, willfully, unlawfully and feloniously assault, attack and employ personal violence upon the person of one ANTONIO DOMETITA, by then and there stabbing him with a bladed weapon[,] hitting him on his chest thereby inflicting upon him serious and mortal wounds, which were the direct and immediate cause of his untimely death, to the damage and prejudice of the heirs of the said ANTONIO DOMETITA.CONTRARY TO LAW.Upon arraignment, Appellant Castillo, assisted by Counsel Salacnib Baterina, entered a plea of not guilty.4After trial in due course, appellant was convicted. The dispositive portion of the assailed Decision reads:WHEREFORE, premises considered, accused ROBERTO CASTILLO y MONES is found guilty beyond reasonable doubt of the crime of Murder and [is] hereby sentenced to suffer [the] penalty ofreclusion perpetua. He is likewise ordered to pay the heirs of the deceased Antonio Dometita actual damages in the sum of P60,000.00, the sum of P50,000.00 by way of indemnity for the death of the victim and moral damages in the sum of P100,000.00. He is likewise ordered to pay costs.SO ORDERED.5Hence, this appeal.6The FactsEvidence for the ProsecutionThe Appellee's Brief7presents the facts as follows:On May 25, 1993, around one o'clock in the morning, Eulogio Velasco, floor manager of the Cola Pubhouse along EDSA, Project 7, Veteran's Village, Quezon City, was sitting outside the Pubhouse talking with his co-worker, Dorie. Soon, Antonio "Tony" Dometita, one of their customers, came out of the pubhouse. As he passed by, he informed Eulogio that he was going home. When Tony Dometita was about an armslength [sic] from Eulogio, however, appellant Robert Castillo suddenly appeared and, without warning, stabbed Tony with a fan knife on his left chest. As Tony pleaded for help, appellant stabbed him once more, hitting him on the left hand.Responding to Tony's cry for help, Eulogio placed a chair between Tony and appellant to stop appellant from further attacking Tony. He also shouted at Tony to run away. Tony ran towards the other side of EDSA, but appellant pursued him.Eulogio came to know later that Tony had died. His body was found outside the fence of the Iglesia ni Cristo Compound, EDSA, Quezon City.Dr. Bienvenido Munoz, the medico-legal officer who autopsied Tony's cadaver, testified that the proximate cause of Tony's death was the stab wound on his left chest. Tony also suffered several incised wounds and abrasions, indicating that he tried to resist the attack.8Version of the DefenseOn the other hand, the defense viewed the facts in this way:9On May 25, 1993, the late Antonio Dometita was found dead by the police officers at the alley on the right side of the Iglesia ni Cristo Church at EDSA in Bago Bantay.It is the theory of the prosecution that the deceased Antonio Dometita was stabbed by the accused Robert Castillo y Mones as testified to by Leo Velasco. The corroboration of Leo Velasco's testimony is that of Melinda Mercado who (tsn Oct. 11, 1993) stated that Leo Velasco informed her that Dometita was stabbed. Robert Castillo was walking away from the pubhouse with the bladed weapon. Leo Velasco himself detailed the way Castillo stabbed the deceased Antonio Dometita.On the other hand the defense claims that the deceased died in the alley at the right side of the church. That decedent Dometita was attacked by two malefactors as testified to by Edilberto Marcelino, a tricycle driver who saw two people ganging up on a third. The same witness saw the victim falling to the ground. (tsn January 5, 1994, page 8). A report of Edilberto Marcelino to the Barangay Tanod's Office was made in the blotter of the Barangay and the extract (xerox of the page) was marked as Exhibit "2"The Trial Court's RulingThe courta quogave full credence to the testimonies of the two prosecution witnesses, who positively identified the appellant as the killer. It explained:From the testimonies of the witnesses of the prosecution and the defense, it can be gleaned that the accused, to exculpate himself from the liability, clung to the defense of alibi[,] saying that he was not at the place where the incident took place at the time of the killing. This was supported by the testimony of his mother and his neighbor and guide Malikdem. This, however, is contradicted by the testimonies of the two eyewitnesses of the prosecution who positively identified accused as the person who stabbed the victim. While the testimony of Mercado is to the effect that she did not actually see the accused hit the victim, she however, saw him walking away and carrying a bladed weapon at the scene of the crime. Velasco on the other hand, actually saw him lunged [sic] his fan knife at the victim. These were further strengthened by the findings of the medico-legal officer that the weapon used in killing the victim [was] similar to a balisong.10The trial court also found that the killing was qualified by abuse of superior strength, because "the accused used a deadly weapon in surprising the victim who [was] unarmed." Although treachery was present, the trial court held that this was absorbed by abuse of superior strength.The IssuesThe appellant raises the following assignment of errors:11IThat the trial court failed to appreciate the evidence presented by the accused that there was a stabbing/mauling incident at the side street near the Iglesia ni Cristo Church at Edsa-Bago Bantay, Quezon City (at about the time of the alleged stabbing of victime [sic] Antonio Dometita according to the prosecution version), the same evidence for the accused being buttressed and supported by the barangay blotter, marked Exhibit "2."IIThat the trial court failed to appreciate the implications of: the medical finding that the heart and the lungs of the victim were impaled; that according to the testimony of the prosecution witness, PO3 Manolito Estacio, the victim was found at the side street near the Iglesia ni Cristo Church; and that side street distant from the place the witnesses for the prosecution stated the victim was stabbed. These matters create reasonable doubt as to the guilt of the accused and cast distrust on the testimony of the witness Eulogio Velasco who allegedly witnessed the stabbing of the victim.IIIThat the trial court in many instances showed its prejudice against the accused and in several instances asked questions that [were] well within the duty of the prosecution to explore and ask; it never appreciated other matters favorable to the accused, like the frontal infliction of the mortal wound and the presence [of] "defense wounds" which negate treachery and superiority.IVThat the trial judge was bias[ed] against the accused hence the judgment of conviction.In the main, appellant questions the trial judge's (1) assessment of the credibility of the witnesses and their testimonies and (2) alleged partiality in favor of the prosecution as shown by his participation in the examination of witnesses.This Court's RulingThe appeal is bereft of merit.First Issue: Credibility of WitnessesTime and again, this Court has adhered to the rule that the factual findings12of the trial court, as well as its assessment of the credibility of witnesses,13are entitled to great weight and are even conclusive and binding, barring arbitrariness and oversight of some fact or circumstance of weight and substance. The evaluation of the credibility of witnesses is a matter that peculiarly falls within the power of the trial court, as it has the opportunity to watch and observe the demeanor and behavior of the witnesses on the stand.14In this case, appellant failed to provide any substantial argument to warrant a departure from this rule.The testimony of Prosecution Witness Eulogio Velasco that he saw the appellant stab the victim is clear and unequivocal. He was sitting outside the pub house when the victim came out. Dometita, who was then only an arm's length away from him, turned around to say goodbye when, suddenly, the accused came out of nowhere and stabbed the victim. Velasco narrated further that the victim asked him for help, so he responded by placing a chair between the victim and the appellant to block the assault of the accused.15Thereafter, he told Dometita to run away. The accused then chased the victim towards the other side of EDSA.16The relevant portions of Velasco's testimony are reproduced hereunder:Q Immediately thereafter, was there any unusual incident that happened?A When Dorie went inside the pub house, that was the time Tony went out, sir.COURT:Q Who is this Tony?A Antonio DimatitaaliasTony, Your Honor.PROS. LEE:Q When Antonio Dimatita [sic]aliasTony went out, what happened?A Tony asked permission from me that he will go home, sir.Q And what happened thereafter?A When he ha[d] not gone far yet from me, Robert Castillo suddenly attacked him and stabbed him, sir.Q What happened to Antonio Dimatita [sic]aliasTony when he was stabbed by accused Robert Castillo?A He was taken aback. He was not able to cover up himself and he was hit by the stab made by Robert Castillo, sir.Q On what part of the body was he hit?A On the left side of the chest, sir.Q And did you see in what summer [sic] accused Robert Castillo stabbed Antonio Dimatita [sic]?A Like this, sir. (Witness demonstrating with his right arm above his shoulder with downward stabbing position.)Q As you stated, after Tony was hit on the left side of [his] chest, what happened next?A He was stabbed again and was hit on the arm, sir.Q What arm? Left or right?A On the left arm, sir. (Witness is pointing to his left arm in between the 1st and second finger.)Q After he was hit on the left arm, what happened next?A He went near me and asked for help, sir. I placed a bench on the middle to block the way so that Robert Castillo [would] not be able to reach him and I told Tony to run away, sir.Q Did Tony run away thereafter?A Yes, sir.Q How about accused Robert Castillo, what was he doing the[n]?A He chased, sir.Q What happened next?A I heard Tony was already dead, sir.The testimony of Velasco that the accused stabbed the victim on the left side of the chest and then on the left arm was confirmed by the medical findings,17particularly the autopsy report of Dr. Muoz, who testified as follows:18COURTQ Can you tell the Court the relative position of the victim and the assailant when the stab wound was inflicted?TRIAL PROS. RALPH S. LEEBased on the wound, doctor.WITNESSA If the victim and the assailant were in a standing position, the assailant and the victim would be facing each other and the fatal wound was delivered from upward to downward, your honor.Witness Velasco further testified that the accused used a bladed weapon which looked like a fan knife.19This was also supported by Dr. Muoz,viz.:20Q Dr. Muoz, in your learned medical knowledge, what could have caused this stab wound marked as Exhibit "D"?A This was inflicted by a sharp pointed single bladed instrument like kitchen knife or "balisong" or any similar instrument.Melinda Mercado, the other prosecution witness, corroborated the story of Velasco. She testified that when she was inside the pub, she heard Velasco shout that Antonio Dometita was stabbed.21She went out to verify and saw the accused walking away. What she saw was not the stabbing incident itself, but the accused wrapping a bladed weapon in his shirt.22This confirms the assertion of Velasco that the accused was still holding the bladed instrument as he chased the victim.23Clearly, the straightforward, detailed and consistent narrations of the government witnesses show that the trial court did not err in giving credence to the account of the prosecution.Appellant contends that the trial court failed to appreciate the testimony of Defense Witness Edilberto Marcelino who narrated a "stabbing/mauling incident" on a side street that fateful night near the Iglesia ni Cristo Church, where the victim's body was found. Said witness testified that he was driving his tricycle, when he noticed a group ganging up on a man(pinagtutulungan).24He then saw the person fall.25He did not notice if the assailants had weapons, as he was a bit far from them, illumination coming only from the headlight of his tricycle. He stated that the appellant, with whom he was familiar because he often saw him selling cigarettes along EDSA,26was not one of those he saw ganging up on the person who fell to the ground. He described one of the malefactors as long-haired and lanky, and the other one as fair-complexioned with medium build,27descriptions which did not fit the accused. Upon witnessing the incident, Marcelino immediately proceeded to the barangay hall to report the matter.The trial court did not accord weight to said testimony. We sustain this holding. Marcelino admitted that he was about twenty-five meters away from the place of incident28and that said place was not lighted. Furthermore, his tricycle was then moving because he was in a hurry.29Thus, we agree with this statement of the trial court: "[C]onsidering that it was dark and the distance from where the witness saw the incident [was] quite far, it could not have been possible for him to recognize the victim and his attackers."30Appellant also asserts that the trial court failed to appreciate the implications of the medical finding that the heart and lungs of the victim were impaled. He argues that these wounds made it impossible for the victim to traverse the distance from the pub house to the Iglesia ni Cristo Church area, where his body was eventually found. However, the testimony of the medico-legal expert did not rule out this possibility, as gleaned from the following:Q And if the stab wound was fatal, how long could have he [sic] lived after the infliction of the wound?A It would be very very difficult to give the duration of survival because different individual[s] would have different types of survival. Others would [live] for five minutes and others would survive for at least . . . in shorter time.Q But five minutes doctor would be a long time already. It could be the survival time of a person who has a strong constitution. Do you agree with me?A No, sir.In this particular case considering that the involvement here of the heart is the left ventricle which is a very thick portion of the heart, I don't think he would die in less than five minutes because the thick portion of the heart serves as sealer once the instrument is pulled out, the tendency of the thick muscle is to close the injury so there is a much longer time for survival.31(Emphasis supplied.)Second Issue: Partiality of the Trial JudgeAppellant declares that the trial judge was biased against him for propounding questions that were well within the prerogative of the prosecution to explore and ask. More pointedly, appellant alleges that the trial judge took over from the prosecution and asked questions in a leading manner,32interrupted the cross-examination to help the witness give answers favorable to theprosecution,33and asked questions which pertained to matters of opinion and allusions of bad moral character, which would not be objected to by defense counsel, because they have been ventiliated by the judge himself.34To substantiate the alleged bias and prejudice of the judge, appellant in his brief cited several pages from the transcript of stenographic notes.35The allegation of bias and prejudice is not well-taken. It is a judge's prerogative and duty to ask clarificatory questions to ferret out the truth.36On the whole, the Court finds that the questions propounded by the judge were merely clarificatory in nature. Questions which merely clear up dubious points and bring out additional relevant evidence are within judicial prerogative. Moreover, jurisprudence teaches that allegations of bias on the part of the trial court should be received with caution, especially when the queries by the judge did not prejudice the accused. The propriety of a judge's queries is determined not necessarily by their quantity but by their quality and, in any event, by the test of whether the defendant was prejudiced by such questioning. In this case, appellant failed to demonstrate that he was prejudiced by the questions propounded by the trial judge. In fact, even if all such questions and the answers thereto were eliminated, appellant would still be convicted.As correctly observed by the solicitor general, "there was no showing that the judge had an interest, personal or otherwise, in the prosecution of the case at bar. He is therefore presumed to have acted regularly and in the manner [that] preserve[s] the ideal of the 'cold neutrality of an impartial judge' implicit in the guarantee of due process (Mateo, Jr. vs. Villaluz, 50 SCRA 18)."37That the judge believed the evidence of the prosecution more than that of the defense, does not indicate that he was biased. He simply accorded greater credibility to the testimony of the prosecution witnesses than to that of the accused.38AlibiAppellant's defense of alibi and denial is unavailing. For the defense of alibi to prosper, the accused must prove not only that he was at some other place at the time the crime was committed, but that it was likewise physically impossible for him to be at thelocus criminisat the time of the alleged crime.39This the appellant miserably failed to do. Appellant contends that he was then asleep in his house at the time of the incident. This was supported by his mother who stated that he was asleep from 9:00 p.m. to 6:00 a.m. the next day40and by Rosemarie Malikdem who said the she visited the accused on the night of May 24, 1993 to counsel him, which was her task in theSamahang Magkakapit-bahay.41Appellant failed to demonstrate, however, the distance between the crime scene and his house. Indeed, he testified that his house was "near" the crime scene. In any event, this defense cannot overturn the clear and positive testimony of the credible eyewitnesses who located appellant at thelocus criminisand identified him as the assailant.42Aggravating CircumstancesThe Court agrees with the trial court that appellant is guilty of murder for the death of Antonio Dometita. We likewise agree that the prosecution was unable to prove the aggravating circumstance of evident premeditation. For this circumstance to be appreciated, there must be proof, as clear as the evidence of the crime itself, of the following elements: 1) the time when the offender determined to commit the crime, 2) an act manifestly indicating that he clung to his determination, and 3) a sufficient lapse of time between determination and execution to allow himself time to reflect upon the consequences of his act.43These requisites were never established by the prosecution.On the other hand, we disagree with the trial court that the killing was qualified by abuse of superior strength. "To properly appreciate the aggravating circumstance of abuse of superior strength, the prosecution must prove that the assailant purposely used excessive force out of proportion to the means of defense available to the person attacked."44The prosecution did not demonstrate that there was a marked difference in the stature and build of the victim and the appellant which would have precluded an appropriate defense from the victim. Not even the use of a bladed instrument would constitute abuse of superior strength if the victim was adequately prepared to face an attack, or if he was obviously physically superior to the assailant.Nonetheless, we hold that the killing was qualified by treachery. "Treachery is committed when two conditions concur, namely, that the means, methods, and forms of execution employed gave the person attacked no opportunity to defend himself or to retaliate[;] and that such means, methods, and forms of execution were deliberately and consciously adopted by the accused without danger to his person."45These requisites were evidently present in this case when the accused appeared from nowhere and swiftly and unexpectedly stabbed the victim just he was bidding goodbye to his friend, Witness Velasco. Said action rendered it difficult for the victim to defend himself. The presence of "defense wounds" does not negate treachery because, as testified to by Velasco, the first stab, fatal as it was, was inflicted on the chest. The incised wounds in the arms were inflicted when the victim was already rendered defenseless.DamagesThe trial court awarded indemnity and actual and moral damages to the heirs of the victim. We sustained the award of indemnity in the amount of P50,000, but we cannot do the same for the actual and moral damages which must be supported by proof. In this case, the trial court did not state any evidentiary basis for this award. We have examined the records, but we failed to find any, either.WHEREFORE, the appeal is hereby DENIED and the assailed Decision is AFFIRMED,46but the award of actual and moral damage is DELETED for lack of factual basis, Costs against appellant.SO ORDERED.Davide, Jr., Bellosillo, Vitug and Quisumbing, JJ., concur.

CAYETANO A. TEJANO, JR.,petitioner,vs.THE HON. OMBUDSMAN and the HON. SANDIGANBAYAN,respondents.D E C I S I O NCHICO-NAZARIO,J.:This petition forcertiorariunder Rule 65 of the Rules of Court, with application for temporary restraining order, seeks to nullify the Ombudsmans disapproval of the memorandum1dated 03 November 1999 of Special Prosecutor Jesus A. Micael of the Office of the Special Prosecutor recommending the dismissal of Criminal Case No. 21654, as well as the memorandum2dated 09 June 2003 denying petitioners motion for reconsideration.The FactsThe instant petition stemmed from the report of Philippine National Bank (PNB) Resident Auditor Alexander A. Tan, dated 15 October 1992, on his investigation regarding an alleged unfunded withdrawal in the amount of P2.2 million by V&G Better Homes Subdivision (V&G) under Savings Account No. 365-5355-6-4.The report, as summarized by Special Prosecution Officer III Jesus A. Micael, is as follows:3. . . [I]n the morning of 17 July 1992, Emilio P. Montesa (Bank Executive Officer of PNB Cebu) handed a note to Jane Rita Jecong (Cashier) instructing her to include her cash requisition for the day from Central Bank Cebu, the amount of P2.2 M at P1,000.00 denomination; that on 20 July 1992 at about past 10:00 A.M., Juanito Mata (Cashier III), upon the instruction of Cayetano A. Tejano Jr. (Vice President and Branch Manager of PNB Cebu), took the P2.2 M from Ms. Jecong and delivered the same to Mr. Tejano; that at about noontime of same day, Mr. Mara handed to Ms. Jecong a pre-signed withdrawal slip against SA No. 365-535506-4 under the name of V & G Better Homes for the same amount to replace the cash withdrawn and to serve as cash-on-hand at the end of the days transaction; that the withdrawal slip was approved by Mr. Tejano and was postdated 21 July 1992; that as of 20 July 1992 V & G Better Homes SA No. 365-535506-4 has only P33,436.78; that in the afternoon of 20 July 1992 the amount of P2,336,563.32 (consisting of P2,200,000.00 in cash; P100,000.00 in check; and P36,563.22 in withdrawal slip) was received by Teller Mary Ann Aznar as payment for the loan of V & G Better Homes for which PNB Official Receipt No. 952981E was issued; that the transaction was recognized as an increase in PNB Cebu Branchs cash-on-hand and a decrease in the loan account of V & G Better Homes; that the PNB Cebu Credit Committee approved the loan at the rate of 23% lower than the 26% interest rate on its first renewal and 27% on its second renewal; that the loan proceeds was credited to the account of V & G Better Homes on 21 July 1992, the same day that the withdrawal slip of P2.2 M was taken by Mr. Montesa from Ms. Jecong and given to Irene Abellanosa to be taken as her transaction for the day; and that upon the instruction of Montesa, Savings Account No. 365-535506-4 of V & G Better Homes was debited and the withdrawal slip was validated by Teller Abellanosa although no actual cash withdrawal was made.The report of Resident Auditor Alexander A. Tan implicated Vice President Cayetano A. Tejano, Jr., the petitioner herein, Executive Officer Emilio Montesa, and Supervising Branch Teller Jane Rita Jecong, all of the PNB, Cebu City Branch, including Juana dela Cruz and Vicente dela Cruz of V&G, as persons involved in the irregular withdrawal of P2.2 million of PNB funds.In an order dated 22 December 1992, the Office of the Deputy Ombudsman for the Visayas ordered Tejano, Montesa, Jecong, Juana dela Cruz and Vicente dela Cruz to file their respective counter-affidavits.4In a resolution dated 29 March 1993, Graft Investigation Officer Edgardo G. Canton recommended the filing of the proper information for violation of Section 3(e) of Republic Act No. 3019,5as amended, against petitioner Cayetano A. Tejano, Jr., Juana dela Cruz and Vicente dela Cruz of V&G.6The case against Montesa and Jecong was dismissed for lack of evidence. The resolution was approved by Deputy Ombudsman for Visayas Arturo C. Mojica and then Ombudsman Conrado M. Vasquez.The resolution was thereafter referred for review to Special Prosecutor III Orlando I. Ines of the Office of the Special Prosecutor.In a Memorandum7dated 25 October 1994, Ines affirmed the resolution of Graft Investigation Officer Edgardo G. Canton.On 28 October 1994, Deputy Special Prosecutor Jose De G. Ferrer recommended the approval of the memorandum of Special Prosecution Officer Ines.On 08 November 1994, Aniano A. Desierto, then the Special Prosecutor, concurred in the approval of Ferrer.8Ombudsman Conrado M. Vasquez concurred thereto on 11 November 1994.Subsequently, on 24 November 1994, an Information for violation of Section 3(e) of Rep. Act No. 3019, as amended, was filed before the Sandiganbayan, and docketed as Criminal Case No. 21654.On 08 December 1994, petitioner filed with the Sandiganbayan an Urgent Motion for a Period of Time to File Motion for Reinvestigation.In an order dated912 December 1994, the Sandiganbayan granted the motion for reinvestigation.On 22 December 1994, petitioner filed his motion for reinvestigation in the Office of the Special Prosecutor.On 20 April 1995, the Sandiganbayan ordered the Office of the Special Prosecutor to conduct the reinvestigation.10The reinvestigation was assigned to Special Prosecution Officer III Jesus Micael.Convinced that no probable cause existed to indict petitioner Tejano, and spouses Juana and Vicente dela Cruz, Special Prosecutor Micael, in a memorandum11dated 03 November 1999, recommended the dismissal of the case. The recommendation was approved by Deputy Special Prosecutor Robert E. Kallos and concurred in by Special Prosecutor Leonardo P. Tamayo.On 10 December 1999, Ombudsman Aniano A. Desierto, who earlier participated in the initial preliminary investigation as Special Prosecutor, disapproved the recommendation for the dismissal of the case with the marginal note "assign the case to another prosecutor to prosecute the case aggressively."On 02 February 2000, Special Prosecutor Micael filed a Manifestation, to which was attached a copy of his memorandum, informing the Sandiganbayan of the disapproval by Ombudsman Desierto of his recommendation to dismiss the case.On 10 February 2000, petitioner filed a Motion for Reconsideration of the disapproval by Ombudsman Desierto of the recommendation of Micael.Apparently, petitioners motion for reconsideration was not resolved on the merits because on 27 June 2000, Special Prosecution Officer III Joselito R. Ferrer filed a Motion to Set the Case for Arraignment alleging therein that the prosecution did not give due course to the motion for reconsideration on the ground that it was the second motion which is prohibited under the Ombudsman Act of 1989. He added that the results of the reinvestigation were already submitted to the respondent court before receiving the motion for reconsideration.12Petitioner manifested before the Sandiganbayan the Office of the Special Prosecutors failure to resolve his motion for reconsideration. Thus, in a resolution13dated 24 March 2003, the respondent court directed the Office of the Ombudsman to resolve the said motion.In a memorandum14dated 09 June 2003, Special Prosecutor Joselito R. Ferrer recommended the denial of the motion for reconsideration filed by petitioner. Deputy Special Prosecutor Robert E. Kallos changed his previous position and recommended that the memorandum for the dismissal of the motion for reconsideration be approved, with Special Prosecutor Dennis M. Villa-Ignacio concurring in the denial.On 14 July 2003, Ombudsman Simeon V. Marcelo, who succeeded Ombudsman Desierto when he retired, approved Joselito Ferrers memorandum recommending the denial of the motion for reconsideration.Petitioner thus filed the instant petition with prayer for the issuance of a temporary restraining order to enjoin the Sandiganbayan from taking further action in Criminal Case No. 21654.On 25 August 2003, the First Division of this Court issued the temporary restraining order prayed for.On 28 July 2004, the instant petition was transferred to the Second Division of this Court.IssuesPetitioner raises the following issues:IWHETHER OR NOT RESPONDENT OFFICE OF THE OMBUDSMAN COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT DISAPPROVED THE EARLIER RECOMMENDATION FOR THE DISMISSAL OF THE CASE AGAINST ALL THE ACCUSED WITHOUT ANY COGENT OR VERIFIABLE REASON AMOUNTING TO LACK OF JURISDICTION WHEN THEY:1. THE OFFICE OF THE OMBUDSMAN ABUSED ITS DISCRETION IN THE DISAPPROVAL OF THE RESOLUTION DATED NOVEMBER 3, 1999 AGAINST ALL ACCUSED FOR LACK OF PROBABLE CAUSE AS MANDATED UNDER SECTION 13 R.A. 6770 IN RELATION TO SECTION 3, RULE 112 OF THE RULES ON CRIMINAL PROCEDURE.2. THE OFFICE OF SPECIAL PROCECUTOR DID NOT DETERMINE THE EXISTENCE OF PROBABLE CAUSE IN A RESOLUTION DENYING PETITIONERS MOTION FOR RECONSIDERATION FOR APPROVAL BY THE NEW OMBUDSMAN.IIWHETHER OR NOT THE CASE FILED AGAINST THE ACCUSED IS A CLEAR CASE OF PERSECUTION AND NOT PROSECUTION CONTEMPLATED UNDER R.A. 3019, AS AMENDED, OTHERWISE KNOWN AS THE ANTI-GRAFT AND CORRUPT PRACTICES ACT, REPUBLIC ACT NO. 1374 AND CHAPTER II, SECTION 2, TITLE VII, BOOK II OF THE REVISED PENAL CODE.IIIWHETHER OR NOT THE HONORABLE OMBUDSMAN HAS JURISDICTION OVER THE CASE.Ruling of the CourtQuite apart from the above, we find a focal issue apparently glossed over by the parties - whether or not Ombudsman Desierto committed grave abuse of discretion in disapproving the 03 November 1999 memorandum of Special Prosecutor Jesus Micael recommending the dismissal of Criminal Case No. 21654 against petitioner Tejano, and spouses Juana and Vicente dela Cruz of V&G for violation of Section 3(e) of Rep. Act No. 3019, where he had earlier participated in the preliminary investigation of the said criminal case recommending the filing of the information.This Court has been consistent in holding that it will not interfere with the Ombudsmans exercise of his constitutionally mandated investigatory and prosecutory powers, and respect the initiative and independence inherent in the Ombudsman who "beholden to no one, acts as the champion of the people and the preserver of the integrity of public service."15Such discretionary power of the Ombudsman is beyond the domain of this Court to review, save in cases where there is clear showing of grave abuse of discretion amounting to lack or excess of jurisdiction of the latter.Grave abuse of discretion is such capricious and whimsical exercise of judgment on the part of the public officer concerned which is equivalent to an excess or lack of jurisdiction. The abuse of discretion must be so patent and gross as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law as where the power is exercised in an arbitrary and despotic manner by reason of passion or hostility.16Ombudsman Desierto, in this case, committed grave abuse of discretion. Petitioner attributes partiality on the part of Ombudsman Desierto for having participated in the reinvestigation of the instant case despite the fact that he earlier participated in the initial preliminary investigation of the same when he was a Special Prosecutor by concurring in the recommendation for the filing of the information before the Sandiganbayan.We agree with the petitioner. Steadfastly, we have ruled that the officer who reviews a case on appeal should not be the same person whose decision is under review.17InZambales Chromite Mining Company v. Court of Appeals,18the decision of the Secretary of Agriculture and Natural Resources was set aside by this Court after it had been established that the case concerned an appeal of the Secretarys own previous decision, which he handed down while he was yet the incumbent Director of Mines. We have equally declared void a decision rendered by the Second Division of the National Labor Relations Commission, because one of its members, Commissioner Raul Aquino, participated in the review of the case which he had earlier decided on as a former labor arbiter.19Likewise, this Court struck down a decision of Presidential Executive Assistance Jacobo Clave over a resolution of the Civil Service Commission, in which he, then concurrently its Chairman, had earlier concurred.20Having participated in the initial preliminary investigation of the instant case and having recommended the filing of an appropriate information, it behooved Ombudsman Desierto to recuse himself from participating in the review of the same during the reinvestigation. He should have delegated the review to his Deputies pursuant to Section 15 of Rep. Act No. 6770, which provides:Sec. 15. Powers, Functions and Duties. The Office of the Ombudsman shall have the following powers, functions and duties:. . .(10) Delegate to the Deputies, or its investigators or representatives such authority or duty as shall ensure the effective exercise or performance of the powers, functions and duties herein or hereinafter provided; . . .In earlier recommending the filing of information, then Special Prosecutor Desierto was already convinced, from that moment, that probable cause exists to indict the accused. It becomes a farfetched possibility that in a subsequent review of the same, Ombudsman Desierto would make a turnabout and take a position contradictory to his earlier finding.Due process dictates that one called upon to resolve a dispute may not review his decision on appeal.21We take our bearings fromZambales Chromite Mining Co. v. Court of Appeals22which succinctly explained that:In order that the review of the decision of a subordinate officer might not turn out to be farce, the reviewing officer must perforce be other than the officer whose decision is under review; otherwise, there could be no different view or there would be no real review of the case. The decision of the reviewing officer would be a biased view; inevitably, it would be the same view since being human, he would not admit that he was mistaken in his first view of the case.Cojuangco, Jr. v. Presidential Commission on Good Government23concedes the applicability of the prohibition on the reviewing officer to handle a case he earlier decided, thus:Where the circumstances do not inspire confidence in the objectivity and impartiality of the judge, such judge should inhibit voluntarily or if he refuses, he should be prohibited from handling the case. A judge must not only be impartial but must also appear impartial as an assurance to the parties that his decision will be just. His actuation must inspire that belief. This is an instance when appearance is as important as reality.The same rule of thumb should apply to an investigating officer conducting a preliminary investigation. This is the reason why under Section 1679 of the former Revised Administrative Code, the Secretary of Justice, who has supervision over the prosecution arm of the government, is given ample power to designate another prosecutor to handle the investigation and prosecution of a case when the prosecutor handling the same is otherwise disqualified by personal interest, or is unable or fails to perform his duty. (Underlining supplied)The fact that the motion for reconsideration of Ombudsman Desiertos disapproval of the 03 November 1999 memorandum of Special Prosecutor Jesus Micael recommending the dismissal of Criminal Case No. 21654 was denied by another reviewing officer, Ombudsman Marcelo, does not cure the infirmity of Ombudsman Desiertos actuation. As stressed inSingson v. NLRC:24. . . The infirmity of the resolution was not cured by the fact that the motion for reconsideration of the petitioner was denied by two commissioners and without the participation of Commissioner Aquino. The right of petitioner to an impartial review of his appeal starts from the time he filed his appeal. He is not only entitled to an impartial tribunal in the resolution of his motion for reconsideration. Moreover, his right is to an impartial review of three commissioners. The denial of petitioners right to an impartial review of his appeal is not an innocuous error.It negated his right to due process. (Underlining supplied)With the foregoing conclusion, we deem it unnecessary to discuss the other issues raised by petitioner.WHEREFORE, the Ombudsmans disapproval of the memorandum dated 03 November 1999, where Prosecutor Jesus A. Micael of the Office of the Special Prosecutor recommended the dismissal of Criminal Case No. 21654, as well as the memorandum dated 09 June 2003, which denied petitioners motion for reconsideration, are SET ASIDE. The case is remanded to the Office of the Ombudsman for further proceedings. No costs.SO ORDERED.Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

JANE CARAS y SOLITARIO,petitioner,vs.HON. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES,respondents.QUISUMBING, J.:This is an appeal by certiorari from the decision of the Court of Appeals1which affirmed the decision of the Regional Trial Court of Quezon City, Branch 92, finding petitioner Jane Caras y Solitario guilty of 15 counts of Batas Pambansa Blg. 22 (Bouncing Checks Law) violations.The facts of the case as found by the Court of Appeals are as follows:JANE S. CARAS has appealed from the judgment of conviction in fifteen (15) related cases of Violation of the Bouncing Checks Law. The first Information (docketed as Criminal Case No. Q-93-44420) against her reads as follows:That on or about the 5th day of January 1992 in Quezon City, Philippines, the said accused did then and there wilfully, unlawfully and feloniously make or draw and issue to Chu Yang T. Atienza to apply on account or for value PCI Bank, Commonwealth Ave. Branch Check No. 017744 dated March 18, 1992 payable to the order of CASH in the amount of P14,125.00 Philippine Currency, said accused well knowing that at the time of issue she did not have sufficient funds in or credit with the drawee bank for payment of such check in full upon its presentment which check when presented for payment was subsequently dishonored by the drawee bank for Account Closed and despite receipt of notice of such dishonor, said accused failed to pay said Chu Yang T. Atienza the amount of said check or to make arrangement for full payment of the same within five (5) banking days after receiving said notice.In Criminal Case Nos. Q-93-44421 to Q-93-44434, the informations were similarly worded as above, except for the respective amounts involved, dates, numbers of checks and dates of commission.When arraigned on August 16, 1993, accused Caras pleaded "not guilty". Thereafter, trial proceeded.The evidence for the prosecution tends to show that on or about February 18, 1992, up to May 31, 1992 at Quezon City, accused Jane Caras obtained from complainant Chu Yang T. Atienza on installment various gift checks and purchase orders from Uniwide Sales and in payment thereof, the accused issued to the complainant the following checks drawn against Philippine Commercial Bank:Check No.DateAmount

0177443-18-92P 14,125.00

0177433-03-92P 14,625.00

0176273-03-92P 14,125.00

0177454-03-92P 14,125.00

0176644-18-92P 23,500.00

0177464-18-92P 14,125.00

0177893-18-92P 14,125.00

0177904-03-92P 14,125.00

0176634-02-92P 23,500.00

0176623-18-92P 24,440.00

0177683-18-92P 7,062.50

0177883-03-92P 14,125.00

0176655-02-92P 23,500.00

0177673-03-92P 7,062.50

0177693-31-92P540,318.35

When the checks were presented for deposit or encashment, they were all dishonored for the reason "Account Closed". Despite repeated verbal and written demands made on her to replace the dishonored checks with cash, she failed and refused to do so.The accused admitted that she issued the fifteen (15) checks. She claimed, however, that they were given to Marivic Nakpil,2alleged sister of the complainant, as "guarantee deposit," that is, for every gift check and purchase order given to the accused, she issued personal checks to guarantee its payment. The checks are not to be encashed nor deposited with any bank. With regard to Check No. 017769 in the amount of P540,316.35 (Exh. "O"), accused claimed that she entrusted the said check to Marivic Nakpil in blank, with her signature but without any amount or numerical figures on the face of the check.On May 13, 1994, the Court a quo rendered its judgment with the following disposition:WHEREFORE, Judgment is hereby rendered as follows:1.In Crim. Case No. Q-93-44420 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs;2.In Crim. Case No. Q-93-44421 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambans Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and indemnify the offended party in the amount of P14,625.00 and to pay the costs;3.In Crim. Case No. Q-93-44422 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs;4.In Crim. Case No. Q-93-44423 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs;5.In Crim. Case No. Q-93-44424 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of six (6) months and to indemnify the offended party in the amount of P23,500.00 and to pay the costs;6.In Crim. Case No. Q-93-44425 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs;7.In Crim. Case No. Q-93-44426 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs;8.In Crim. Case No. Q-93-44427 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs;9.In Crim. Case No. Q-93-44428 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of six (6) months and to indemnify the offended party in the amount of P23,500.00 and to pay the costs;10.In Crim. Case No. Q-93-44429 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of six (6) months and to indemnify the offended party in the amount of P24,440.00 and to pay the costs;11.In Crim. Case No. Q-93-44430 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of two (2) months and to indemnify the offended party in the amount of P7,062.50 and to pay the costs;12.In Crim. Case No. Q-93-44431 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of four (4) months and to indemnify the offended party in the amount of P14,125.00 and to pay the costs;13.In Crim. Case No. Q-93-44432 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of six (6) months and to indemnify the offended party in the amount of P23,500.00 and to pay the costs;14.In Crim. Case No. Q-93-44433 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of two (2) months and to indemnify the offended party in the amount of P7,062.50 and to pay the costs;15.In Crim. Case No. Q-93-44434 the Court finds accused Jane Caras GUILTY beyond reasonable doubt for Violation of Batas Pambansa Blg. 22 and is hereby sentenced to suffer an imprisonment of eight (8) months and to indemnify the offended party in the amount of P540,318.35 and to pay the costs.SO ORDERED.3On June 13, 1994, petitioner filed a Motion for Reconsideration which was denied by the trial court in an Order dated September 22, 1994. Petitioner then filed an appeal with the Court of Appeals which rendered judgment as follows:WHEREFORE, the appealed decision is hereby AFFIRMED in toto. Costs against appellant.SO ORDERED.4On April 11, 1997, petitioner filed a Motion for Reconsideration which was denied by the Court of Appeals in a Resolution dated July 15, 1997.Hence, this petition, in which petitioner alleges that the Court of Appeals erred:I - IN NOT RESOLVING THE ISSUES BROUGHT OUT IN THE MOTION FOR RECONSIDERATION;II - IN COMPLETELY IGNORING THE PURPOSE OF THE ISSUANCE OF THE CHECKS;III - IN COMPLETELY IGNORING THE LACK OF PERSONALITY OF THE PRIVATE COMPLAINANT TO INITIATE AND PROSECUTE THESE CASES;IV - IN NOT ACQUITTING THE ACCUSED FOR LACK OF CONSIDERATION (AS TO PCIB CHECK NO 017769 FOR P540,318.35) AND FOR LACK OF KNOWLEDGE OF THE INSUFFICIENCY OF HER FUNDS;V - IN COMPLETELY IGNORING THAT THE COURT A QUO HAD NO TERRITORIAL JURISDICTION OVER THE OFFENSE.5Petitioner admits having issued the checks subject of this case, save for one, but insists that she issued them merely to guarantee payment of her obligation to a certain Marivic Nakpil; they were not supposed to have been deposited in a bank. Petitioner also denies having transacted with private complainant Chu Yang T. Atienza, and asserts that the latter did not have personality to prosecute this case.Petitioner argues that one of the checks, PCIB check no. 017769, was issued in blank. She claims that this check was issued without consideration and that the element of the crime that the check must be issued for value is lacking as regards this particular check. Also in relation to her fourth assignment of error, petitioner asserts that she was not properly notified of the dishonor of her checks. She maintains that the prosecution failed to show that she received the notices of dishonor purportedly sent to her. She points out that no return card nor acknowledgment receipt for the first demand letter was presented in evidence. While there was a return card attached to the second demand letter, this was not marked nor offered in evidence, and hence must be ignored.6Petitioner also assails the jurisdiction of the Quezon City RTC over the case, maintaining that there is no evidence showing that the checks were issued and delivered in Quezon City. Neither is there evidence as to where the private complainant received the checks, and whether or not she received them from the accused herself.For its part, the Office of the Solicitor General argues that B.P. 22 does not make any distinction regarding the purpose for which the checks were issued. Thus, it is of no moment even if it were true that, as claimed by accused, the checks she issued were meant only to guarantee payment of her obligation. Criminal liability attaches whether the checks were issued in payment of an obligation or to guarantee payment of that obligation.7There is violation of B.P. 22 when a worthless check is issued and is subsequently dishonored by the drawee bank. The OSG also points out that accused did not deny having issued the subject checks.After a careful consideration of the records and the submissions of the parties, we find that the resolution of this petition hinges on the issue of whether the prosecution evidence suffices to convict the accused, herein petitioner Jane Caras. The elements of the offense under Section 1 of B.P. Blg. 22 are: (1) drawing and issuance of any check to apply on account or for value; (2) knowledge by the maker, drawer, or issuer that at the time of issue he did not have sufficient funds in or credit with the drawee bank for the payment of such check in full upon presentment; and (3) said check is subsequently dishonored by the drawee bank for insufficiency of funds or credit, or would have been dishonored for the same reason had not the drawer, without any valid reason, ordered the bank to stop payment.8What the law punishes is the issuance of a bouncing check and not the purpose for which the check was issued, nor the terms and conditions of its issuance. There are matters we need to pursue, because, as said inLlamado v. Court of Appeals,9to determine the reasons for which checks are issued, or the terms and conditions for their issuance, will greatly erode the faith the public reposes in the stability and commercial value of checks as currency substitutes, and bring about havoc in trade and in banking communities.Thus, petitioners contention that she issued the checks subject of this case merely to guarantee payment of her obligation is hardly a defense. The mere act of issuing a worthless check ismalum prohibitumand is punishable under B.P. 22, provided the other elements of the offense are properly proved.In particular, we note that the law provides for aprima facierule of evidence. Knowledge of insufficiency of funds in or credit with the bank is presumed from the act of making, drawing, and issuing a check payment of which is refused by the drawee bank for insufficiency of funds when presented within 90 days from the date of issue. However, this presumption may be rebutted by the accused-petitioner. Such presumption does not hold when the maker or drawer pays or makes arrangements for the payment of the checkwithin five banking days after receiving noticethat such check had been dishonored.10Thus, it is essential for the maker or drawer to be notified of the dishonor of her check, so she could pay the value thereof or make arrangements for its payment within the period prescribed by law.Petitioner denies having received any notice that the checks she issued had been dishonored by the drawee bank. After carefully going over the records of this case, we find that indeed no clear evidence is shown on whether petitioner was informed that her checks had been dishonored.The notice of dishonor, as held inLao v. Court of Appeals,11may be sent by the offended party or the drawee bank. Complainant testified that she hired lawyers to prepare and send the demand letters.12The prosecution presented and marked in evidence two letters demanding payment which were purportedly sent to petitioner. However, the prosecution presented no evidence that would establish petitioners actual receipt of any demand letter which could have served as notice to petitioner. None of the letters contained an indication that they were actually received by petitioner. No acknowledgement receipt nor return card for the first and second demand letters were offered in evidence. Such omission and neglect on the part of the prosecution is fatal to its cause.There is testimony on record that private complainant asked petitioner to pay the value of the checks. However, there is no mention of when the demand to pay was made, whether before or after the checks were dishonored by the drawee bank.13It is possible that payment was requested before the checks were deposited, since, as testified to by petitioner, the usual arrangement was that she issues checks and then she replaces them with cash. The checks were not deposited but were, instead, returned to her.14However, according to the prosecution, petitioner started having problems with her cash flow resulting to her inability to replace the checks she issued with cash. But such problems leading to illiquidity of petitioner are not material elements of the crime. What is pertinent here is prior notice to the drawer that her checks have been dishonored, so that within five banking days from receipt of such notice she could pay the check fully or make arrangements for such payment.Even the testimony of Manuel Panuelos, branch manager of PCI Bank where petitioner maintained her checking account, indicates that the bank also failed to send notice to petitioner for her to pay the value of the checks or make arrangements for their payment within five days from the dishonor of the said checks. Note his testimony on cross-examination:Q: Did you give the accused notice within five (5) banking days within which to make arrangement with the bank within ninety (90) days regarding the bounced checks?Atty. Palaa:Your Honor, that is already answered by the witness.Atty. Dela Torre:No, that is not the answer, what I want is that.....Court:ReformAtty. Dela Torre:Is it not your procedure that when a check bounced, you give notice to the ....A: It is not our procedure.Q: It is not your procedure?A: No. In fact we do it verbally....Q: Is it not standard operating procedure in your bank to give customers notice within five (5) banking days to make arrangement with the bank within ninety (90) days regarding the bounced check?A: No, that is not our procedure.Q: You do not follow that procedure?A: We do not. That is not our standard procedure.15Petitioner on the witness stand denied receiving any notice from the bank.Q: Madam Witness, all these checks were deposited with the bank in one day. Will you please tell this Honorable Court when the first check bounced by the reason of DAIF, were you notified by your depositary bank which is PCIB within five (5) banking days to make arrangement within...days regarding that bouncing checks?A: No, sir, I did not receive any notice.16The absence of proof that petitioner received any notice informing her of the fact that her checks were dishonored and giving her five banking days within which to make arrangements for payment of the said checks prevents the application of the disputable presumption that she had knowledge of the insufficiency of her funds at the time she issued the checks. Absent such presumption, the burden shifts to the prosecution to prove that petitioner had knowledge of the insufficiency of her funds when she issued the said checks, otherwise, she cannot be held liable under the law.17Even more crucial, the absence of any notice of dishonor personally sent to and received by the accused is a violation of the petitioners right to due process. This is in effect our ruling inLao vs. Court of Appeals,18where we held:It has been observed that the State, under this statute, actually offers the violator "a compromise by allowing him to perform some act which operates to preempt the criminal action, and if he opts to perform it the action is abated". This was also compared "to certain laws"(citing E.O. 107, 83 O.G. No. 7, p. 576 (February 16, 1987), and E.O. 122, 89 O.G. No. 44, p. 6349 (November 1, 1993) allowing illegal possessors of firearms a certain period of time to surrender the illegally possessed firearms to the Government, without incurring any criminal liability" (citing Nitafan, David G., Notes and Comments on the Bouncing Checks Law (BP Blg. 22), pp. 121-122). In this light, the full payment of the amount appearing in the check within five banking days from notice of dishonor is a "complete defense" (citingNavarro vs. Court of Appeals, 234 SCRA 639).The absence of a notice of dishonor necessarily deprives an accused an opportunity to preclude a criminal prosecution. Accordingly, procedural due process clearly enjoins that a notice of dishonor be actually served on petitioner. Petitioner has a right to demand - and the basic postulates of fairness require - that the notice of dishonor be actually sent to and received by her to afford her the opportunity to avert prosecution under B.P. Blg. 22. (Underscoring and emphasis supplied.)Absent a clear showing that petitioner actually knew of the dishonor of her checks and was given the opportunity to make arrangements for payment as provided for under the law, we cannot with moral certainty convict her of violation of B.P. Blg. 22. The failure of the prosecution to prove that petitioner was given the requisite notice of dishonor is a clear ground for her acquittal.19Discussion of the other assigned errors need no longer detain us.However, it should be stressed that this decision in no way prejudices the civil obligations, if any, that she might have incurred by reason of her transactions with private complainant. For we note that petitioner does not deny having issued the subject checks.20And while no criminal liability could be imposed in this case for lack of sufficient proof of the offense charged, a fair distinction should be made as to civil aspects of the transaction between the parties.WHEREFORE, the assailed decision of the Court of Appeals affirming that of the Regional Trial Court, is REVERSED and SET ASIDE. Petitioner Jane Caras is ACQUITTED on the ground that her guilt has not been established beyond reasonable doubt. This decision is without prejudice to the filing of an appropriate civil case, if warranted, to determine the civil aspects of petitioners transactions.No pronouncement as to costs.SO ORDERED.Bellosillo, (Chairman), Mendoza, Buena, and De Leon, Jr., JJ.,concur.

PANFILO V. VILLARUEL, JR.,petitioner, vs. REYNALDO D. FERNANDO, MODESTO ABARCA, JR. and MARILOU M. CLEOFAS,respondents.D E C I S I O NCARPIO,J.:The CaseThis petition for review oncertiorari[1]seeks to reverse the Decision[2]of the Court of Appeals in CA-G.R. SP No. 48233[3]dated 30 September 1998 denying due course to the petition forcertiorari[4]filed by Panfilo V. Villaruel, Jr. and the Resolution dated 3 December 1998 denying the motion for reconsideration.The FactsPetitioner Panfilo V. Villaruel, Jr. (petitioner) is the former Assistant Secretary of the Air Transportation Office (ATO), Department of Transportation and Communication (DOTC).Respondents Reynaldo D. Fernando, Modesto E. Abarca, Jr. (Abarca), and Marilou M. Cleofas are the Chief, Chief Administrative Assistant, and Administrative Assistant, respectively, of the Civil Aviation Training Center (CATC). The CATC is an adjunct agency of the ATO tasked to train air traffic controllers, airway communicators and related civil aviation personnel for the local aviation industry as well as for the Southeast Asian and Pacific region.Petitioner issued a memorandum dated 27 April 1995 addressed to the respondents, detailing them to the Office of DOTC Undersecretary Primitivo C. Cal effective 2 May 1995.On 29 April 1995, respondents wrote to DOTC Secretary Jesus B. Garcia and Undersecretary Josefina T. Lichauco through petitioner requesting for reconsideration of the detail order.On 7 May 1995, in compliance with the detail order, respondents reported to the Office of Undersecretary Cal at DOTC.Without acting on respondents request for reconsideration, petitioner issued a memorandum on 19 July 1995 addressed to Abarca placing him under preventive suspension for 90 days without pay pending investigation for alleged grave misconduct.On 10 August 1995, respondents requested Secretary Garcia to lift the detail order and to order their return to their mother unit since more than 90 days had already lapsed. Respondents also sought the intervention of the Ombudsman in their case.As a result, the Ombudsman inquired from Secretary Garcia the action taken on respondents request for reconsideration of the detail order.On 22 November 1995, Secretary Garcia replied to the Ombudsman that he had issued a memorandum dated 9 November 1995 directing petitioner to recall respondents to their mother unit.Secretary Garcia declared that the law does not sanction the continuous detail of respondents.Despite repeated demands by respondents, petitioner failed and refused to reinstate respondents to their mother unit.On 24 January 1996, respondents filed a Petition for Mandamus and Damages with Prayer for a Preliminary Mandatory Injunction against petitioner with the Regional Trial Court of Pasay City docketed as Civil Case No. 96-0139.Respondents prayed for the following:P R A Y E RWHEREFORE, premises considered, petitioners herein respectfully pray of this Honorable Court that:1.Pending the determination of the merits of this petition, a writ of preliminary mandatory injunction be issuedex-partedirecting respondent Panfilo V. Villaruel, Jr., to recall the petitioners herein within twenty four (24) hours from receipt hereof to their mother unit, the Civil Aviation Training Center, Air Transportation Office, DOTC, and to forthwith allow them to assume, perform and discharge the functions, duties and responsibilities inherent, appurtenant and incident to their respective offices.2.After hearing on the merits, judgment be rendered confirming the writ of preliminary mandatory injunction earlier issued by this Honorable Court and declaring the same permanent, and ordering the respondent Panfilo Villaruel, Jr., to pay petitioners herein the following damages, to wit:a)to pay petitioner Reynaldo D. Fernando the amount ofP50,000 as actual and compensatory damages;b)to pay petitioners herein moral, exemplary and temperate damages, in such amounts as may hereafter be proven in the course of trial, which petitioners herein are leaving to the sound discretion of this Honorable Court to determine and adjudge;c)to pay petitioners herein attorneys fees in the amount ofP100,000;d)to pay petitioners herein the costs of suit.Petitioners herein pray for such other and further relief as may be just and equitable in the premises.[5]On 23 February 1996, the trial court granted respondents prayer for a preliminary mandatory injunction.Meanwhile, Judge Aurora Navarette-Recia of the trial court was appointed Chairman of the Commission on Human Rights.Consequently, the case was re-raffled and assigned to Branch 231 of the Regional Trial Court, Pasay City.[6]On 12 April 1996, the trial court issued an order modifying the 23 February 1996 order of Judge Recia. The trial court issued a writ of preliminary mandatory injunction ordering petitioner to comply with the 9 November 1995 order of Secretary Garcia directing petitioner to recall respondents to their mother unit until further orders by the trial court.For petitioners continued failure to comply with the writ of preliminary injunction, respondents moved to cite petitioner in contempt.Respondents also moved to declare petitioner in default for not filing an answer within the period prescribed in the trial courts order of 26 January 1996.On 28 May 1996, the trial court granted the motion and declared petitioner guilty of indirect contempt.The trial court issued a bench warrant against petitioner.Petitioner, through the Office of the Solicitor General (OSG), filed a special civil action for certiorari with the Court of Appeals[7]assailing the trial courts order finding petitioner guilty of indirect contempt.The case was docketed as CA-G.R. SP No. 41263.Meanwhile, the trial court declared petitioner in default for his failure to file an answer to the petition for mandamus and damages.Accordingly, respondents adduced their evidenceex-partebefore the Clerk of Court.On 11 July 1996, the trial court rendered a Decision the dispositive portion of which reads:Wherefore, considering the foregoing premises, judgment is hereby rendered in favor of the petitioners and against the respondent declaring mandamus permanent and thereby ordering respondent Panfilo V. Villaruel, Jr., to pay the following:(1)One hundred thousand pesos (P100,000.00) each as moral damages;(2)Twenty five thousand pesos (P25,000.00) each as exemplary damages;(3)Twenty five thousand pesos (P25,000.00) each as temperate damages, and;(4)Fifty thousand pesos (P50,000.00) as attorneys fees.SO ORDERED.[8]Aggrieved, petitioner, represented by the OSG, appealed to the Court of Appeals.The appeal was docketed as CA-G.R. SP No. 42447.[9]With the filing of the appeal, the Court of Appeals granted respondents motion for the dismissal of the petition for certiorari in CA-G.R. SP No. 41263 for being moot and academic.The Court of Appeals granted the OSG a non-extendible extension until 13 December 1996 within which to file petitioners memorandum.However, the OSG failed to file the memorandum.Subsequently, Solicitor Restituto Tuando, Jr. who was handling the case was appointed Regional Trial Court judge of Dumaguete City.The case was re-assigned to Assistant Solicitor Luciano Joson, Jr.On 13 March 1997, the Court of Appeals issued a Resolution dismissing petitioners appeal for failure to file the required memorandum. The OSG, through Assistant Solicitor Luciano Joson, Jr., filed a Motion for Reconsideration, but the Court of Appeals denied the same.The Resolution became final and executory on 14 June 1997.Consequently, the respondents filed a Motion for Execution with the trial court.Although served a copy of the motion for execution, the OSG did not file any opposition.Acting on the motion for execution, the trial court issued a Writ of Execution on 22 September 1997.On 3 February 1998, the Sheriff issued a Notice of Sheriffs Sale setting on 23 February 1998 the sale of petitioners real property covered by Transfer Certificate of Title No. 83030.On 17 February 1998, petitioner, through his new counsel,[10]filed a Motion to Quash the Writ of Execution and to Suspend Sheriffs Sale.In his motion, petitioner alleged that the trial courts decision never became final and executory as the trial court deprived him of his right to due process.Petitioner claimed that the OSG failed to file petitioners memorandum in CA-G.R. SP No. 42447 resulting in the dismissal of his appeal.Furthermore, petitioner alleged that the OSG failed to inform him of the dismissal of his appeal and of the trial courts order granting respondents motion for execution. Petitioner further asserted that the Resolution of the Ombudsman in OMB-ADM 0-96-0090[11]superseded the decision of the trial court. The Ombudsmans Resolution approved the following recommendation of the reviewing Assistant Ombudsman:PREMISES CONSIDERED, respondent MODESTO ABARCA, JR., is hereby found GUILTY of violation of Section 7(d) of Republic Act 6713, for which the penalty of Suspension Without Pay for Six (6) Months is hereby recommended pursuant to Section 10(b), Rule III of Administrative Order No. 07, in relation to Section 25(2) of Republic Act No. 6770.It is also respectfully recommended that the charge against respondents REYNALDO FERNANDO and MARY LOU CLEOFAS be DISMISSED.[12]On 23 February 1998, the trial court issued an Order quashing the Writ of Execution because the Sheriff failed to follow Section 9, Rule 39 of the Rules of Court.The trial court, however, issued an Alias Writ of Execution.Petitioner filed a Motion for Reconsideration but the trial court denied the same on 28 April 1998.Dissatisfied with the trial courts orders, petitioner filed a special civil action forcertiorariwith the Court of Appeals docketed as CA-G.R. SP No. 48233 assailing the execution of the trial courts decision of 11 July 1996. The Court of Appeals denied due course to the petition forcertiorariand dismissed the same in the Decision dated 30 September 1998. Petitioner moved for reconsideration but the appellate court denied the motion in a Resolution of 3 December 1998.Hence, the instant petition.The Ruling of the Court of AppealsPetitioner raised before the Court of Appeals the following issues:1.THE TRIAL COURTS DECISION DATED JULY 11, 1996 IS VOID FOR LACK OF DUE PROCESS AND COULD NOT HAVE BECOME FINAL AND EXECUTORY.2.SUPERVENING FACTS AND CIRCUMSTANCES HAVE TRANSPIRED WHICH RENDERED EXECUTION OF THE JUDGMENT UNJUST AND INEQUITABLE.[13]On the first issue, the Court of Appeals ruled that the negligence of the OSG could not relieve petitioner of the effects of such negligence and prevent the decision of the trial court from becoming final and executory.In short, the OSGs negligence binds petitioner.The Court of Appeals admonished petitioner for his failure to ascertain periodically from the OSG or from the Court of Appeals the status of his appeal.The appellate court citedReyes v. Court of Appeals,[14]which held that it is the duty of a party litigant to make inquiries to his counsel on matters concerning his case. A party litigant bears the responsibility of contacting his lawyer periodically to apprise himself of the progress of the case.A lawyers negligence binds a party litigant who must suffer the consequences of such negligence.The Court of Appeals further held that there was no proof that the OSG failed to inform petitioner of the dismissal of his appeal.On the second issue, the Court of Appeals concurred with the trial courts ruling that the nature of the case before the Ombudsman is different from the case before the trial court.The former deals with a violation of Republic Act No. 6713 (RA 6713)[15]punished with suspension from office while the latter deals with anultra viresact punished with damages.The appellate court ruled that the findings of the Ombudsman had nothing to do with the findings of the trial court, as the two forums are separate and distinct from each other.Moreover, the Court of Appeals opined that petitioner failed to prove that the trial court committed grave abuse of discretion to warrant the writ of certiorari.The appellate court ruled that the trial court acted in accord with law and prevailing jurisprudence in issuing the questioned orders.The IssuesPetitioner presents the following issues for resolution of this Court:[16]1.Whether the award of moral, exemplary and temperate damages to respondents has legal basis.2.Whether the trial court correctly ruled that the negligence of the OSG could not relieve petitioner of the effects of such negligence and prevent the decision of the trial court from becoming final and executory.3.Whether petitioner was denied of his right to due process when the appellate court dismissed his appeal for failure of the OSG to file the memorandum.4.Whether the resolution of the Ombudsman finding Modesto Abarca, Jr. guilty of violating Section 7 of RA 6713 rendered the execution of the trial courts decision unjust and inequitable.The main issue to resolve is whether the Court of Appeals erred in dismissing the petition forcertiorariassailing the trial courts orders dated 23 February 1998 and 28 April 1998.Resolving this issue necessarily determines the validity of the questioned orders.This in turn resolves the questions of whether the trial court denied petitioner of his right to due process and whether the Ombudsmans resolution rendered the execution of the trial courts decision unjust and inequitable.We can no longer resolve the issue regarding the validity and reasonableness of the award of damages for three reasons.First, the decision of the trial court dated 11 July 1996 is already final and executory. Second, the petition forcertiorarifiled by petitioner was simply a direct consequence of the trial courts issuance of the writ of execution and notice of sheriffs sale. In other words, petitioner merely questioned theexecutionof the trial courts decision in his petition forcertiorari. Third, petitioner did not raise the issue of the validity and reasonableness of the award of damages before the Court of Appeals.[17]The C