evidence2008.7thset

8/14/2019 evidence2008.7thset

1/14

FIRST DIVISION

[G.R. No. 142924. December 5, 2001]

TEODORO B. VESAGAS, and WILFRED D. ASIS, petitioners, vs. The

Honorable COURT OF APPEALS and DELFINO RANIEL and HELENDA

RANIEL, respondents.

D E C I S I O N

PUNO,J.:

Before us is the instant Petition for Review on Certiorari assailing theDecision, dated July 30, 1999, of the Court of Appeals in CA-G.R. SP No.

51189, as well as its Resolution, dated March 16, 2000, which deniedpetitioners Motion for Reconsideration.

The respondent spouses Delfino and Helenda Raniel are members in good

standing of the Luz Village Tennis Club, Inc. (club). They alleged that petitioner Teodoro B. Vesagas, who claims to be the clubs duly elected

president, in conspiracy with petitioner Wilfred D. Asis, who, in turn, claimsto be its duly elected vice-president and legal counsel, summarily stripped

them of their lawful membership, without due process of law. Thereafter,respondent spouses filed a Complaint with the Securities and Exchange

Commission (SEC) on March 26, 1997 against the petitioners. It wasdocketed as SEC Case No. 03-97-5598. In this case, respondents asked the

Commission to declare as illegal their expulsion from the club as it wasallegedly done in utter disregard of the provisions of its by-laws as well as the

requirements of due process. They likewise sought the annulment of theamendments to the by-laws made on December 8, 1996, changing the annual

meeting of the club from the last Sunday of January to November andincreasing the number of trustees from nine to fifteen. Finally, they prayed for

the issuance of a Temporary Restraining Order and Writ of Preliminary

Injunction. The application for TRO was denied by SEC Hearing Officer

Soller in an Order dated April 29, 1997.

Before the hearing officer could start proceeding with the case, however, petitioners filed a motion to dismiss on the ground that the SEC lacks

jurisdiction over the subject matter of the case. The motion was denied on

August 5, 1997. Their subsequent move to have the ruling reconsidered waslikewise denied. Unperturbed, they filed a petition for certiorari with the SECEn Banc seeking a review of the hearing officers orders. The petition was

again denied for lack of merit, and so was the motion for its reconsideration inseparate orders, dated July 14, 1998 and November 17, 1998, respectively.

Dissatisfied with the verdict, petitioners promptly sought relief with the Courtof Appeals contesting the ruling of the Commission en banc. The appellate

court, however, dismissed the petition for lack of merit in a Decisionpromulgated on July 30, 1999. Then, in a resolution rendered on March 16,

2000, it similarly denied their motion for reconsideration.

Hence, the present course of action where the petitioners raise the following

grounds:

C.1. The respondent Court of Appeals committed a reversible error when itdetermined that the SEC has jurisdiction in 03-97-5598.

C.2. The respondent Court of Appeals committed a reversible error when it

merely upheld the theoretical power of the SEC Hearing Officer to issue asubpoena and to cite a person in contempt (actually a non-issue of the

petition) while it shunted away the issue of whether that hearing officer mayhold a person in contempt for not obeying a subpoena where his residence is

beyond fifty (50) kilometers from the place of hearing and no transportationexpense was tendered to him.

In support of their first assignment of error, petitioners contend that since its

inception in the 1970s, the club in practice has not been a corporation. They


2/14

add that it was only the respondent spouses, motivated by their own personal

agenda to make money from the club, who surreptitiously caused itsregistration with the SEC. They then assert that, at any rate, the club has

already ceased to be a corporate body. Therefore, no intra-corporate relationscan arise as between the respondent spouses and the club or any of its

members. Stretching their argument further, petitioners insist that since the

club, by their reckoning is not a corporation, the SEC does not have the poweror authority to inquire into the validity of the expulsion of the respondentspouses. Consequently, it is not the correct forum to review the challenged

act. In conclusion, petitioners put respondent spouses to task for their failureto implead the club as a necessary or indispensable party to the case.

These arguments cannot pass judicial muster.

Petitioners attempt to impress upon this court that the club has never been a

corporation is devoid of merit. It must fail in the face of the Commissionsexplicit finding that the club was duly registered and a certificate of

incorporation was issued in its favor, thus:

We agree with the hearing officer that the grounds raised by petitioner intheir motion to dismiss are factual issues, the veracity of which can only beascertained in a full blown hearing. Records show that the association is

duly registered with the association and a certificate of incorporation was

issued. Clearly, the Commission has jurisdiction over the said

association. As to petitioners allegation that the registration of the club wasdone without the knowledge of the members, this is a circumstance which was

not duly proven by the petitioner (sic) in his (sic) motion to dismiss.

It ought to be remembered that the question of whether the club was indeedregistered and issued a certification or not is one which necessitates a factual

inquiry. On this score, the finding of the Commission, as the administrativeagency tasked with among others the function of registering and administering

corporations, is given great weight and accorded high respect. We therefore

have no reason to disturb this factual finding relating to the clubs registration

and incorporation.

Moreover, by their own admission contained in the various pleadings whichthey have filed in the different stages of this case, petitioners themselves have

considered the club as a corporation. This admission, under the rules of

evidence, binds them and may be taken or used against them. Since theadmission was made in the course of the proceedings in the same case, it doesnot require proof, and actually may be contradicted only by showing that it

was made through palpable mistake or that no such admission was made.Noteworthy is the Minute of the First Board Meeting held on January 5,

1997, which contained the following pertinent portions:

11. Unanimously approved by the Board a Resolution to Dissolve thecorporate structure of LVTC which is filed with the SEC. Such resolution

will be formulated by Atty. Fred Asis to be ready on or before the third weekof January 1997. Meanwhile, the operational structure of the LVTC will

henceforth be reverted to its former status as an ordinary club/Association.

Similarly, petitioners Motion to Dismiss alleged:

1. This Commission has no jurisdiction over the Luz Village Tennis Club not

only because it was not impleaded but because since 5 January 1997, it hadalready rid itself, as it had to in order to maintain respect and decency

among its members, of the unfortunate experience of being a corporate

body. Thus at the time of the filing of the complaint, the club had already

dissolved its corporate existence and has functioned as a mere association ofrespectable and respecting individual members who have associated

themselves since the 1970s x x x

The necessary implication of all these is that petitioners recognized andacknowledged the corporate personality of the club. Otherwise, there is no

cogency in spearheading the move for its dissolution. Petitioners were


3/14

therefore well aware of the incorporation of the club and even agreed to get

elected and serve as its responsible officers before they reconsidereddissolving its corporate form.

This brings us to petitioners next point. They claim in gratia argumenti that

while the club may have been considered a corporation during a brief spell,

still, at the time of the institution of this case with the SEC, the club wasalready dissolved by virtue of a Board resolution.

Again, the argument will not carry the day for the petitioner. The CorporationCode establishes the procedure and other formal requirements a corporation

needs to follow in case it elects to dissolve and terminate its structurevoluntarily and where no rights of creditors may possibly be prejudiced, thus:

Sec. 118. Voluntary dissolution where no creditors are affected.- If

dissolution of a corporation does not prejudice the rights of any creditorhaving a claim against it, the dissolution may be effected by majority vote of

the board of directors or trustees and by a resolution duly adopted by the

affirmative vote of the stockholders owning at least two-thirds (2/3) of theoutstanding capital stock or at least two-thirds (2/3) of the members at ameeting to be held upon call of the directors or trustees after publication of thenotice of time, place and object of the meeting for three (3) consecutive weeks

in a newspaper published in the place where the principal office of saidcorporation is located; and if no newspaper is published in such place, then in

a newspaper of general circulation in the Philippines, after sending such noticeto each stockholder or member either by registered mail or by personal

delivery at least 30 days prior to said meeting. A copy of the resolutionauthorizing the dissolution shall be certified by a majority of the board of

directors or trustees and countersigned by the secretary of the corporation.The Securities and Exchange Commission shall thereupon issue the certificate

of dissolution.

We note that to substantiate their claim of dissolution, petitioners submitted

only two relevant documents: the Minutes of the First Board Meeting held onJanuary 5, 1997, and the board resolution issued on April 14, 1997 which

declared to continue to consider the club as a non-registered or a non-corporate entity and just a social association of respectable and respecting

individual members who have associated themselves, since the 1970s, for the

purpose of playing the sports of tennis x x x. Obviously, these twodocuments will not suffice. The requirements mandated by the CorporationCode should have been strictly complied with by the members of the club.

The records reveal that no proof was offered by the petitioners with regard tothe notice and publication requirements. Similarly wanting is the proof of the

board members certification. Lastly, and most important of all, the SECOrder of Dissolution was never submitted as evidence.

We now resolve whether the dispute between the respondents and petitioners

is a corporate matter within the exclusive competence of the SEC to decide. Inorder that the commission can take cognizance of a case, the controversy must

pertain to any of the following relationships: a) between the corporation,

partnership or association and the public; b) between the corporation,partnership or association and its stockholders, partners, members, or officers;c) between the corporation, partnership, or association and the state as far as

its franchise, permit or license to operate is concerned; and d) among thestockholders, partners or associates themselves. The fact that the parties

involved in the controversy are all stockholders or that the parties involved arethe stockholders and the corporation, does not necessarily place the dispute

within the loop of jurisdiction of the SEC. Jurisdiction should be determinedby considering not only the status or relationship of the parties but also the

nature of the question that is the subject of their controversy.

We rule that the present dispute is intra-corporate in character. In the first

place, the parties here involved are officers and members of the club.Respondents claim to be members of good standing of the club until they were

purportedly stripped of their membership in illegal fashion. Petitioners, on the


4/14

other hand, are its President and Vice-President, respectively. More

significantly, the present conflict relates to, and in fact arose from, thisrelation between the parties. The subject of the complaint, namely, the legality

of the expulsion from membership of the respondents and the validity of theamendments in the clubs by-laws are, furthermore, within the Commissions

jurisdiction.

Well to underscore is the date when the original complaint was filed at theSEC, which was March 26, 1997. On that date, the SEC still exercised quasi-

judicial functions over this type of suits. It is axiomatic that jurisdiction isconferred by the Constitution and by the laws in force at the time of the

commencement of the action. In particular, the Commission was thereuponempowered, under Sec. 5 of P.D. 902-A, to hear and decide cases involving

intra-corporate disputes, thus:

SEC. 5. In addition to the regulatory and adjudicative functions of theSecurities and Exchange Commission over corporations, partnerships and

other forms of association registered with it as expressly granted under

existing laws and decrees, it shall have original and exclusive jurisdictionto hear and decide cases involving:

x x x

b) Controversies arising out of intra-corporate or partnership relations,

between and among stockholders, members or associates; between any or allof them and the corporation, partnership or association of which they are the

stockholders, members or associates, respectively; and between suchcorporation, partnership or association and the state insofar as it concerns their

individual franchise or right to exist as such entity;

x x x.

The enactment of R.A. 8799, otherwise known as the Securities Regulation

Code, however, transferred the jurisdiction to resolve intra-corporatecontroversies to courts of general jurisdiction or the appropriate Regional Trial

Courts, thus:

5.2. The Commissions jurisdiction over all cases enumerated under

Section 5 of Presidential Decree No. 902-A is hereby transferred to theCourts of general jurisdiction or the appropriate Regional Trial Court:

Provided, that the Supreme Court in the exercise of its authority may

designate the Regional trial Court branches that shall exercise jurisdictionover these cases. The Commission shall retain jurisdiction over pending cases

involving intra-corporate disputes submitted for final resolution which should be resolved within one (1) year from the enactment of this Code. The

Commission shall retain jurisdiction over pending suspension ofpayments/rehabilitation cases filed as of 30 June 2000 until finally disposed.

On August 22, 2000, we issued a resolution, in A.M. No. 00-8-10-SC, wherein

we DIRECT(ed) the Court Administrator and the Securities and Exchange

Commission to cause the actual transfer of the records of such cases and allother SEC cases affected by R.A. No. 8799 to the appropriate Regional TrialCourts x x x. We also issued another resolution designating certain branches

of the Regional Trial Court to try and decide cases formerly cognizable by theSEC. Consequently, the case at bar should now be referred to the appropriate

Regional Trial Court.

Before we finally write finis to the instant petition, however, we will dispose

of the two other issues raised by the petitioners.

First is the alleged failure of the respondents to implead the club as anecessary or indispensable party. Petitioners contend that the original

complaint should be dismissed for not including the club as one of therespondents therein. Dismissal is not the remedy for non-joinder of parties.


5/14

Under the Rules, the remedy is to implead the non-party, claimed to be

necessary or indispensable, in the action, thus:

SEC. 11. Misjoinder and non-joinder of parties. Neither misjoinder nornon-joinder of parties is a ground for dismissal of an action. Parties may be

dropped or added by order of the court on motion of any party or on its own

initiative at any stage of the action and on such terms as are just. Any claimagainst a misjoined party may be severed and proceeded with separately.

The other issue is with regard to the alleged oppressive subpoenas and ordersissued by Hearing Officer Soller, purportedly without or in excess of

authority. In light of PD 902-As repeal, the need to rule on the question of theextent of the contempt powers of an SEC hearing officer relative to his

authority to issue subpoenas and orders to parties involved in intra-corporatecases, or potential witnesses therein has been rendered academic. The

enactment of RA 8799 mooted this issue as SEC hearing officers, now bereftof any power to resolve disputes, are likewise stripped of their power to issue

subpoenas and contempt orders incidental to the exercise of their quasi-

judicial powers.

At any rate, it taxes our credulity why the petitioners insist in raising this issuein the case at bar. The so-called oppressive subpoenas and orders were not

directed to them. They were issued to the clubs secretary, Purita Escobar,directing her to appear before the Commission and bring certain documents of

the club, that were supposedly under her possession or control. It is obviousthat the petitioners are not the proper parties to assail the oppressiveness of the

subpoenas or the orders, and impugn their validity. Elementary is theprinciple that only those who expect to be adversely affected by an order can

complain against it. It is their addressee, Purita Escobar, who can assail theiralleged oppressiveness. Petitioners protestation has therefore no legal leg to

stand on.

IN VIEW WHEREOF, finding no cogent reason to disturb the assailed

Decision, the petition is DENIED. In conformity with R.A. 8799, SEC CaseNo. 03-97-5598, entitled Delfino Raniel and Helenda Raniel v. Teodoro B.

Vesagas and Wilfred D. Asis is referred to the Regional Trial Court of theNinth Judicial Region, Branch 33 located in Agusan del Norte (Butuan City),

one of the designated special commercial courts pursuant to A.M. No. 00-11-

03-SC.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Kapunan, Pardo, and Ynares-Santiago, JJ.,

concur.

Entitled Delfino Raniel and Helenda Raniel v. Teodoro B. Vesagas andWilfred D. Asis.

Petition for Review on Certiorari, p. 10;Rollo, p. 25.

Ibid., p. 18;Ibid., p. 33.

Order, Annex D, Petition for Review, CA-G.R. No. 51189, p. 3; C.A.Rollo, p.30.

SEC. 26.Admissions of a party. The act, declaration or omission of a party

as to relevant fact may be given in evidence against him. (Section 26, Rule130, Rules of Court.)

SEC. 4. Judicial admissions. An admission, verbal or written, made by a

party in the course of the proceedings in the same case, does not requireproof. The admission may be contradicted only by showing that it was made

through palpable mistake or that no such admission was made. (Section 4,Rule 129, Rules of Court.)


6/14

Attached as an annex of the herein petition and as annex of their petition filed

with Court of Appeals.

Minutes of the First Board Meeting, Annex 1, Petition, p. 1;Rollo, p. 71.

Attached as Annex G of their petition with the Court of Appeals.

Motion to Dismiss, Annex G, Petition, p. 1;Rollo, p. 63.

Section 118, Batas Pambansa Blg. 68, Corporation Code of the Philippines.

Resolution, Annex 2, Petition, p. 74.

Bernardo, Sr., v. Court of Appeals, 263 SCRA 660 (1996).

Mainland Construction Co., Inc. v. Movilla, 250 SCRA 290 (1995).

Viray v. Court of Appeals, 191 SCRA 308 (1990).

Orosa v. Court of Appeals, 193 SCRA 391 (1991).

Section 5, P.D. No. 902-A.

Section 5.2, R.A. 8799, Securities Regulation Code.

A.M. No. 00-8-10-SC. -- In Re: Transfer of Cases from the Securities and

Exchange Commission to the Regular Courts Pursuant to R.A. No. 8799,August 22, 2000.

A.M. No. 00-11-03-SC. -- Resolution Designating Certain Branches of

Regional Trial Courts to Try and Decide Cases Formerly Cognizable by theSecurities and Exchange Commission.

Section 11, Rule 3, 1997 Rules of Civil Procedure.

With Judge Victor A. Tomaneng, presiding.


7/14

THIRD DIVISION

[G.R. No. 139282. September 4, 2000]

ROMEO DIEGO y DE JOYA, petitioner, vs. The SANDIGANBAYAN andPEOPLE OF THE PHILIPPINES, respondents.

D E C I S I O N

GONZAGA-REYES, J.:

Romeo Diego Y De Joya, herein petitioner, was convicted as principal in thecrime of Malversation of Public Property by the Sandiganbayan in its

Decision dated February 22, 1999 in Criminal Case No. 21655. On July 7,1999, the Sandiganbayan issued a Resolution denying petitioners Motion for

Reconsideration of the said decision. Hence, this appeal by certiorari of the

decision and resolution of the Sandiganbayan.

The criminal case against petitioner stems from these undisputed facts as

summarized by the Sandiganbayan, to wit:

Accused Romeo Diego started his career in the Philippine NationalPolice as an Auto Mechanic way back in 1950. Through the years, he rose

to the rank of Police Superintendent (equivalent rank of Lt. Colonel). Atthe time of the loss of the shabu, the accused was the Evidence

Custodian of the National Capital Region, Criminal Investigation ServiceCommand at Camp Crame, Quezon City. On November 27, 1992, he

received for safekeeping forty (40) self-sealed transparent plastic bags of

methamphetamine hydrochloride or shabu with an estimated streetvalue of Five Million Pesos (P5,000,000.00). As custodian of the saidshabu, he received a total of three (3) subpoenas from Branch 111,

Regional Trial Court, Pasay City, to bring the said shabu as evidence in

Criminal Case No. 92-2097, entitled People vs. Ong Foo de la Cruz. Thefirst two subpoenas were for the hearings held on January 27, 1993 and

January 29, 1993 during which police escorts accompanied the accused tohelp secure the subject evidence. On these two occasions, he was

accompanied by three police officers, namely: Crime Investigator II

Zosimo Escobar, SPO3 Oscar Bacani and SPO3 Isalvanor Casissid. Thus,the shabu was twice brought to the court but was not presented inevidence since the hearings were postponed. In both instances, the

accused also asked Presiding Judge Sayo whether he could turn over theevidence to the custody of the court. The latter, however, refused to

accept the shabu for the reason that the court did not have a vault tosecure the same. In going to the Regional Trial Court at Pasay City, the

accused and his companions would leave Camp Crame at about 7:30 a.m.and they would take EDSA to F.B. Harrison, which would lead them to

the courthouse.

By virtue of the third subpoena, the accused again left his office to go to

the RTC at Pasay City with the five-and-a-half kilos (5.5 kgs.) of shabuon February 9, 1993, again leaving at around 7:30 a.m. As usual, he tookEDSA to F.B. Harrison towards the Pasay City courthouse. Unlike the

two previous trips to the said courthouse, however, the accused travelledalone on that fateful day of February 9, 1993. In addition, unlike the two

other previous trips, which were uneventful, accused was waylaid byholduppers along F.B. Harrison, about fifty (50) meters from the

courthouse. The holduppers blocked the path of accuseds Beetle and twoholduppers alighted from their vehicle, a dark blue box type Lancer with

plate number PGM or PGN 44? One of the holduppers, armed with a .45caliber pistol, approached from the passenger side of the accuseds

vehicle and told the accused, Huwag kang papalag. Madidisgrasya ka

lang. The holdupper then asked for accuseds ignition keys andeyeglasses, opened the passenger door of the vehicle, grabbed the bagcontaining the shabu placed at the vehicles front passenger floor. The


8/14

holduppers immediately left the scene of the crime and accused reported

the incident to Judge Sayo of Branch 111 of the Regional Trial Court andto his office at the CIS, to Major Gil Meneses, in particular. The accused

then testified in court before Judge Sayo regarding the loss of the shabuand immediately reported the robbery to the Pasay City where he gave his

statement (Exhibit 1) regarding the incident on F.B. Harrison St. (sic)

Petitioner was charged with Malversation of Public Property in an Informationthat reads:

That on or about February 9, 1993, along F.B. Harrison St., Pasay City,

Philippines, and within the jurisdiction of this Honorable Court, theabove-named accused, a public officer being then the Evidence Custodian

of the National Capital Regional Office - PNPCIBC, and as such, byreason of his office and duties is responsible and accountable for public

funds or properties entrusted or received by him, by means of grossnegligence, did then and there wilfully (sic), unlawfully, and feloniously

fail to take the necessary precautions to adequately secure and safeguard

the safe delivery of one (1) small carton containing forty (40) self-sealedtransparent plastic bags of shabu with total gross weight of 5,900grams, valued at FIVE MILLION (P5,000,000.00) PESOS, Philippine

currency, to the Court, resulting to the loss of the said shabu, to thedamage and prejudice of the Government in the aforesaid amount.

On February 1, 1995, before the commencement of the trial, the prosecutionand the defense entered into a Stipulation of Facts, agreeing to the following:

1. That at all times relevant to this case, accused Romeo de Joya Diego was

then evidence custodian of the National Capital Region (NCR), CriminalInvestigation Service Command (CISC), Philippine National Police (PNP),

Camp Crame, Quezon City.

2. That on November 27, 1992, accused Romeo de Joya Diego received for

safekeeping one (1) small cartoon (sic) containing forty (40) self-sealed plastic bags of SHABU with a street value of Five Million Pesos

(5,000,000.00) (sic).

3. That on February 9, 1993 he (accused Romeo de Joya Diego) was

subpoenaed to appear and bring the subject SHABU to Branch 111, RegionalTrial Court, Pasay City.

4. That at about 7:20 A.M. February 9, 1993, before he left for the Court hesought the assistance of SPO 3 Isalvanor Casidsid to escort him. However, the

latter was not available because he had also been subpoenaed to appear beforeRegional Trial Court (sic) Mariano Umali of Pasig.

5. That accused failed to deliver the subject SHABU before the Court on

said date (February 9, 1993) neither was it (the subject SHABU) returned tothe evidence room of the NCR, CISC, PAP, Camp Crame, Quezon City.

6. That accused testified on said date (February 9, 1993) before the RTC,Branch 111, Pasay City, Re lost (sic) of subject SHABU.

Trial then ensued. On March 6, 1995, the prosecution manifested that it was

not presenting any testimonial evidence and rested its case upon orallyoffering its exhibits. After the prosecution had rested its case, the prosecution

and defense again agreed to a stipulation of facts, thus:

1. That the accused Romeo Diego gave his statement marked as Exhibit 1before SPO2 Rodolfo O. Diza on February 9, 1993, which consists of three (3)

pages, 1-A being the date of the statement and the signature being Exhibit 1-B;

2. That a Certification was issued by RTC Presiding Judge Sofronio G. Sayo

on January 27, 1995 in Criminal Case No. 92-2097 entitled People of the


9/14

Philippine versus Eng. Foo de la Cruz, it being understood that the

prosecution does not admit the truth of the contents of the certification;

3. The due genuineness and due execution of Exhibit 3, together withsubmarkings, which is the transcript of stenographic notes taken in Criminal

Case No. 92-2097, entitled People of the Philippines versus Eng. Foo de la

Cruz, consisting of forty-two pages.

After the defense had presented its witnesses and exhibits, the Sandiganbayan

rendered its judgment of conviction, the dispositive portion of which reads:

WHEREFORE, the Court hereby renders judgment finding accusedSuperintendent Romeo Diego y De Joya GUILTY beyond reasonable doubt as

principal in the crime of Malversation of Public Property, as defined andpenalized under paragraph 4 of Article 217 of the Revised Penal Code; and

considering the mitigating circumstance of voluntary surrender, herebysentences the accused to suffer an indeterminate penalty of imprisonment

ranging from TEN (10) YEARS and ONE (1) DAY of prision mayor, as

minimum, to SEVENTEEN (17) YEARS, FOUR (4) MONTHS and ONE (1)DAY of reclusion temporal, as maximum; to pay a fine of FIVE MILLIONPESOS (P5,000,000.00); to suffer the penalty of perpetual specialdisqualification from holding any public office; and, to pay the costs.

Petitioner now assails the judgment in this appeal, relying on the following

grounds:

First - WHETHER OR NOT THE EVIDENCE ADDUCED BY THEPROSECUTION IN THE PRACTICALLY REVERSE PROCEDURE OF

PRESENTATION ADOPTED BY IT IS SUFFICIENT TO PROVE THEESSENTIAL ELEMENTS OF THE CRIME CHARGED IN THE

INFORMATION;

Second - WHETHER OR NOT, ASSUMING THAT THE BURDEN OF

EVIDENCE WAS PROPERLY SHIFTED TO PETITIONER, THEEXPLANATION HE RELIED UPON FOR THE LOSS OF THE SUBJECT

SHABU IS SUFFICIENT TO EXONERATE HIM FROM LIABILITYFOR THE OFFENSE CHARGED;

Third - WHETHER OR NOT, ASSUMING WITHOUT ADMITTING, THATPETITIONER IS GUILTY AS CHARGED, THE SUPPOSED ESTIMATEDSTREET VALUE OF THE SUBJECT SHABU IS A PROPER BASIS

FOR THE ASSESSMENT OF THE PENALTY IMPOSABLE IN THEPREMISES; and

Fourth - WHETHER OR NOT THE GUILT OF PETITIONER OF (sic) THE

OFFENSE CHARGED HAS BEEN PROVED BY EVIDENCE BEYONDREASONABLE DOUBT.

The petition has no merit.

Petitioner contends that there was a virtual reversal of the normal order ofpresentation of evidence during the trial when the Sandiganbayan required

him, as accused, to put up his defense when the prosecution rested its caserelying only on its exhibits and the stipulation of facts. However, the records

of this case and the petition itself reveal that the trial in the Sandiganbayanproceeded in the order prescribed by Rule 119, Section 3 of the Rules of

Court. The prosecutions reliance on the stipulation of facts and its exhibits,without offering any testimonial evidence, is an exercise of its prosecutorial

prerogative. If petitioner truly believed that the evidence of the prosecutionwas inherently weak such that it failed to establish his culpability for the

crime charged, then he should have filed a Demurrer to Evidence to dismissthe case. However, instead of taking this course of action, petitioner entered

into another stipulation of facts and presented his evidence. Petitioner cannotnow belatedly claim that the Sandiganbayan supposedly caused the onus


10/14

probandi to shift to him, the accused in a criminal case, when petitioner

himself acquiesced to the regular order of the proceedings.

Petitioner bewails the prosecutions reliance on the stipulation of facts. Itbears stress that the stipulation of facts is a judicial admission and in the

absence of a showing that (1) the admission was made through palpable

mistake, or that (2) no such admission was made, the admissions bind thedeclarant.

In this case, petitioner duly admitted in the stipulation of facts, entered intoduring the pre-trial, that the subject shabu worth five million pesos

(P5,000,000.00) was in his custody for safekeeping; that petitioner wassubpoenaed to bring the shabu to Branch 111, Regional Trial Court, Pasay

City Court; that petitioner failed to deliver the shabu before said court and thatneither was it returned to the evidence room. The mere fact that petitioner

failed to account for the shabu under his custody raises the rebuttablepresumption that he malversed the subject shabu. Article 217 of the Revised

Penal Code states that:

Art. 217. Malversation of public funds or property--Presumption of

malversation. -- Any public officer who, by reason of the duties of his office,is accountable for public funds or property, shall appropriate the same, or shall

take or misappropriate or shall consent, or through abandonment ornegligence, shall permit any other person to take such public funds or

property, wholly or partially, or shall otherwise be guilty of themisappropriation or malversation of such funds or property, shall suffer:

1. The penalty ofprision correccional in its medium and maximum periods, if

the amount involved in the misappropriation or malversation does not exceed200 pesos.

2. The penalty of prision mayor in its minimum and medium periods, if the

amount involved is more than 200 pesos but does not exceed 6,000 pesos.

3. The penalty of prision mayor in its maximum period to reclusion temporal

in its minimum period, if the amount involved is more than 6,000 pesos but isless than 12,000 pesos.

4. The penalty of reclusion temporal in its medium and maximum periods, if

the amount involved is more than 12,000 pesos but is less than 22,000 pesos.

If the amount exceeds the latter, the penalty shall be reclusion temporal in itsmaximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty ofperpetual special disqualification and a fine equal to the amount of the funds

malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds orproperty with which his chargeable, upon demand by any duly authorized

officer, shall be prima facie evidence that he has put such missing funds orproperty to personal uses. (As amended by Rep. Act No. 1060).

The fundamental issue thus to be considered is whether or not petitioner wasable to successfully overturn the foregoing presumption. We hold that based

on the testimony of petitioner and the judicial admissions embodied in thestipulation of facts, the presumption stands unrebutted.

All of the four elements of malversation are present in the case at bar, and

these elements are:

1. That the offender is a public officer;

2. That he has the custody or control of funds or property by reason of theduties of his office;

3. That the funds or property are public funds or property for which he is

accountable; and


11/14

4. That he appropriated, took, misappropriated or consented or throughabandonment or negligence, permitted another person to take them.(Emphasis ours)

Petitioner is a public officer who had custody of the shabu by reason of his

official duties as Evidence Custodian of the National Capital Regional Office

of the Philippine National Police - Criminal Investigation Service Command(NCRO, PNP-CISC). The shabu was public property for which petitioner wasaccountable. While the evidence on record fail to show that petitioner

misappropriated said public property for his personal aggrandizement, theevidence points to the conclusion that the loss of the shabu to armed men was

through petitioners negligence.

Malversation is committed either intentionally or by negligence. TheSandiganbayan in this case ruled that the loss of the shabu was due to

petitioners gross negligence, a factual finding that is as a rule conclusiveupon this Court. In cases involving public officials, there is gross negligence

when a breach of duty is flagrant and palpable. What makes petitioners gross

negligence more pronounced is the fact that he was fully aware of the need totransport the shabu with police escorts but despite the knowledge of the perilinvolved in the transportation of illegal drugs, petitioner took it upon himself

to deliver the subject shabu without police escort, despite the fact that theshabu involved is valued at five million pesos (P5,000,000.00), weighing 5.5

kilograms and packed in 40 sealed transparent plastic bags. The sheer nature,value, and amount of the contraband should have alerted petitioner, an

experienced evidence custodian, to the risk that organized criminals mightattempt to forcibly take away the shabu. Petitioners diligence unmistakablyfell short of that required by the circumstances.

We cite with approval the following findings of the Sandiganbayan:

Indeed, the accused had miserably failed to exercise the necessary

precautions to secure the safekeeping of the shabu under his care. There is

no doubt that the accused was aware of the dangers posed in transporting such

a large amount of shabu subject of the instant case. As a matter of fact, hedeemed it indispensable to secure, as he did, the assistance of three police

officers in the previous instances as escorts in transporting the shabu to andfrom the courthouse in Pasay City. His knowledge of such dangers was further

revealed in his very own testimony before the court, thus:

J. Lagman:

Q: When you found that there was nobody to escort you, why did you nottake steps to inform the Court that you could not come considering the

volume of the shabu that you will bring to the Court and considering theenormity of the case that you are supposed to attend?

A: My eagerness was to bring the evidence to the Court and turn it over to

them because that is dangerous.

Q: It was very dangerous for you to carry the shabu alone from your office

to the Court as you said now, is that correct? In spite of that, you took itupon yourself to bring the shabu alone considering the danger that you said

was lurking outside?

A: Yes, sir.

Undoubtedly, the danger posed of transporting the shabu was so real andapparent that the accused had previously tried to turn over the same to the

custody of the Regional Trial Court in Pasay City in order that he be relievedof the burden of securing the same. His knowledge of such danger,

notwithstanding, the accused proceeded to Pasay City without theindispensable police escorts necessary to secure the shabu. He failed to take

the necessary steps to procure police escorts when SPO3 Isalvanor Casidsidwas unavailable. The fact that he failed to organize the requisite police escorts

on the day or days prior to the court date when he could have done so is


12/14

already an indication of the accuseds laxity in the performance of his duties.

Such laxity became even worse when he decided to proceed to Pasay City,bringing along with him the shabu, without police escorts. The alleged fact

that he waited for thirty (30) minutes to look for an alternate escort, withouttaking any further action, is insufficient to absolve accused from liability.

Neither is the accuseds fear of being cited for contempt sufficient justificationfor his irresponsible actions. He certainly could explain to the judges

satisfaction his failure to appear in court as required.

In the case at bench, the accused could have pursued other options to ensurethe security of the shabu. The accused would have waited until alternative

escorts arrived at the office. A simple telephone call to the office of JudgeSayo informing the latter that the accused would be late would have sufficed.

Under the circumstances, the judge would have understood the accusedspredicament and could have called the case at a later hour. Another option is

not to have gone to the court if no escorts could be procured. Again, atelephone call to the office of the judge would again have probably sufficed to

allay his fears of being cited for contempt. Simply put, the accused failed to

take all possible actions to ensure the security of the shabu; he left too manystones unturned, so to speak.

Furthermore, the court notes that the accused carried only a gun of a merecaliber .22. Indeed, if he were to truly secure his valuable cargo, as was his

bounden duty, he should have carried a more powerful firearm and maybemore than one such firearm, the need therefor having become more

compelling considering that he was to travel alone. It is a matter of commonexperience that holduppers normally carry high powered firearms.

In a last ditch effort to skirt the issue of gross negligence imputed against petitioner, petitioner claims that the robbery was a fortuitous event. This

argument must likewise fail since the loss of the shabu to armed men is by nomeans a fortuitous event. A fortuitous event is defined as an occurrence which

could not be foreseen or which though foreseen, is inevitable. Again, the very

nature of the object under the custody of petitioner and its street value posed

risks. One of these risks is that the shabu could be taken forcibly by armedmen, a risk that petitioner was in fact preparing against. The possibility of

losing the shabu to armed men was evidently a foreseeable event.

By all accounts, petitioner had previously undertaken certain measures to

safeguard the transportation of the shabu. In fact, during his first trip to thecourt he was accompanied by police escorts; he suggested that the shabu bedeposited with the court, which the court denied due to the absence of a vault;

petitioner tried to look for a police escort on the day he was rescheduled todeliver the shabu in court, but allegedly to no avail; and he decided to

transport the shabu alone and incognito. Petitioners actions underscore thefact that he was fully aware of the inherent danger in transporting the shabu, a

fact that defeats his claim that the loss of the shabu to armed robbers was afortuitous event.

Concededly, the presence of police escorts would not have necessarily

deterred the robbers from taking the shabu, but in such a case, petitioner

would have shown due diligence that would controvert his own liability. True,petitioner is not expected to match a holdupper gun for gun. However, what issimply expected of him is to exhibit a standard of diligence commensurate

with the circumstances of time, person and place.

The scale of the damage sustained by the government because of the loss of

the shabu cannot be overemphasized. The estimated street value of the shabuis five million pesos (P5,000,000.00) and the circulation of this illegal

substance in the market is a major setback in the effort of government to curbdrug addiction. We are thus in complete agreement with the Sandiganbayan

that the unnecessary risks taken by petitioner in transporting the subject shabu,leading to the eventual loss of this prohibited substance, cannot be

countenanced.


13/14

Lastly, petitioner contends that the illegal nature of the shabu prevents the

courts from basing the penalty on its value. We hold that the Sandiganbayandid not commit a grievous error when it imposed the penalty based on the

value of the shabu. In malversation, the penalty for the offense is dependenton the value of the public funds, money or property malversed. Generally,

when the value is disputed, the court is proscribed from taking judicial noticeof the value and must receive evidence of the disputed facts with notice to the

parties. However, in the case at bar, the value of the shabu is not in dispute.Petitioner subscribed to the stipulation of facts that the street value of the

shabu is five million pesos (P5,000,000.00). As stated earlier, statementsembodied in the stipulation of facts are judicial admissions and are thereby

binding on the declarant. There is no indication that the admission as to thevalue of the shabu was made through palpable mistake and petitioner does not

deny having made such an admission. Thus, the stipulated value of the shabuis not an improper basis for the imposition of the penalty.

WHEREFORE, we AFFIRM the appealed decision of the Sandiganbayan

convicting the accused Romeo Diego Y de Joya of Malversation of Public

Property and imposing upon him the indeterminate penalty of imprisonmentranging from ten (10) years and one (1) day ofprision mayor, as minimum, toseventeen (17) years, four (4) months and one (1) day ofreclusion temporal,

as maximum in view of the mitigating circumstance of voluntary surrender; topay a fine of five million pesos (P5,000,000.00); and to suffer the penalty of

perpetual special disqualification from holding any public office.

Costs against petitioner.

SO ORDERED.

Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

Per Associate Justice Narciso S. Nario, Sr. and concurred in by Associate Justices Sabino R.

de Leon and Rodolfo G. Palattao, Fourth Division, Sandiganbayan.

Rollo, pp. 44-46.

Records, p. 313.

Ibid., p. 56.

Ibid., p. 71.

Ibid., pp. 222-223.

Rollo, p. 17.

Sec. 3. Order of trial.-The trial shall proceed in the following order:

(a) The prosecution shall present evidence to prove the charge and, in the

proper case, the civil liability.

(b) The accused may present evidence to prove his defense, and damages, ifany, arising from the issuance of any provisional remedy in the case.

(c) The parties may then respectively present rebutting evidence only, unless

the court, in furtherance of justice, permits them to present additionalevidence bearing upon the main issue.

(d) Upon admission of the evidence, the case shall be deemed submitted for

decision unless the court directs the parties to argue orally or to submitmemoranda.

(e) However, when the accused admits the act or omission charged in the complaint or

information but interposes a lawful defense, the order of trial may be modified accordingly.

Section 4 of Rule 129 of the Rules of Court states:

SEC. 4. Judicial Admissions. ---An admission, verbal or written, made by a party in the

course of the proceedings in the same case, does not require proof. The admission may be


14/14

contradicted only by showing that it was made through palpable mistake or that no such

admission was made.

Atlas Consolidated Mining and Development Corporation vs. Commissioner of InternalRevenue, G.R. No. 134467, November 17, 1999.

Records, pp. 56-57.

Salamera vs. Sandiganbayan, 217 SCRA 303 (1999), p. 227.

Cabello vs. Sandiganbayan, 197 SCRA 94 (1991), p. 103.

Diaz vs. Sandiganbayan, 302 SCRA 118 (1999), p. 137.

Quibal vs. Sandiganbayan, 244 SCRA 224 (1995), p. 232.

Rollo, pp. 52-55.

Article 1174, Civil Code.

Article 217, Revised Penal Code.

Salamera, supra note12, p. 229.

Art. 217. Malversation of public funds or property-- Presumption of malversation. Anypublic officer who, by reason of the duties of his office, is accountable for public funds or

property, shall appropriate the same, or shall take or misappropriate or shall consent, or

through abandonment or negligence, shall permit any other person to take such public funds

or property, wholly or partially, or shall otherwise be guilty of the misappropriation or

malversation of such funds or property, shall suffer:

1. The penalty ofprision correccional in its medium and maximum periods, if

the amount involved in the misappropriation or malversation does not exceed

200 pesos.

2. The penalty ofprision mayorin its minimum and medium periods, if the

amount involved is more than 200 pesos but does not exceed 6,000 pesos.

3. The penalty ofprision mayorin its maximum period to reclusion temporal

in its minimum period, if the amount involved is more than 6,000 pesos but is

less than 12,000 pesos.

4. The penalty ofreclusion temporalin its medium and maximum periods, ifthe amount involved is more than 12,000 pesos but is less than 22,000 pesos.If the amount exceeds the latter, the penalty shall be reclusion temporal in its

maximum period to reclusion perpetua.

In all cases, persons guilty of malversation shall also suffer the penalty ofperpetual special disqualification and a fine equal to the amount of the funds

malversed or equal to the total value of the property embezzled.

The failure of a public officer to have duly forthcoming any public funds orproperty with which his chargeable, upon demand by any duly authorized

officer, shall be prima facie evidence that he has put such missing funds orproperty to personal uses. (As amended by Rep. Act No. 1060). (Emphasis

ours)

evidence2008.7thset

Documents