STATE v.

BALL
NO. 47575.
339 S.W.2d 783 (1960)
STATE of Missouri, Respondent, v. William Arthur BALL, Appellant.
Supreme Court of Missouri, En Banc.
November 14, 1960.

BARRETT, Commissioner.
A jury has found William Arthur Ball guilty of robbery in the first degree; the jury also found prior felony convictions and, therefore,
a mandatory sentence of life imprisonment was imposed. V.A.M.S. 560.120, 560.135, 556.280.

The facts, briefly, as the jury could find them were that about 2:30 in the afternoon of October 15, 1958, two colored men, one of them
tall and the other short, entered the Krekeler Jewelry Store at 1651 South 39th Street. The taller man spent ten or fifteen minutes
selecting and buying a cigarette lighter, he also talked about buying and looked at watches and rings. As the taller man looked at
jewelry and made his purchase the shorter man looked in the cases and moved about in the store. Later in the day, about 5:50, as John
Krekeler was placing rings and watches in the safe preparatory to closing the store two men entered, one of them tall and the ot her
short, and Krekeler immediately recognized them as the two men who had been in the store at 2:30, especially the taller man. He
recognized the taller man's narrow-brimmed, tall hat, brown jacket, gray stirt and particularly a scar on his face. The shorter man
started to walk behind the counter and as Krekeler intercepted him he "drew a long barreled blue .38 and stuck it in my face." Both
men followed Krekeler, the shorter man with the gun in "his back," directing him to the watch repair department and finally into the
rest room in the rear of the store. He was told not to turn around and stood facing the wall. He could hear jewelry being dumped into a
bag and the "jingle" of the cash register. The two men left Krekeler in the rest room and after hearing the door slam he called the
police. The two men had taken watches and rings of the stipulated value of $4,455.21 and $140 in cash from the register. Krekeler
identified the appellant from pictures, and three weeks later, after his capture, in a hospital and upon the trial positively identified him
as the taller of the two holdup men.

In his motion for a new trial one of the claims is that there was no direct evidence of an injury or any evidence to show that Krekeler
was put "in fear of some immediate injury to his person," one of the essential elements of robbery in the first degree. V.A.M.S.
560.120. Krekeler did not affirmatively testify that he was in fear but he could well apprehend injury if he did not comply with their
requests and in the circumstances the jury could reasonably find "the fear" contemplated in the statute. 77 C.J.S. Robbery 16, p. 459;
State v. Thompson, Mo., 299 S.W.2d 468, 474. The element of fear being a reasonable inference from the evidence, the facts and
circumstances support and warrant the finding of robbery in the first degree. State v. Eckenfels, Mo., 316 S.W.2d 532.

Another of the appellant's sufficiently preserved claims in his motion for a new trial (V.A.M.S. 547.030; Supreme Court Rule 27.20,
V.A.M.R.) has to do with his arrest and the testimony of the two arresting officers. On November 4, 1958, about three weeks after the
robbery, police officers in a squad car saw Ball walking on Easton Avenue. The officers stopped him, told him that they were officers
and that he was under arrest. As officer Powell faced and searched Ball officer Ballard "holstered" his gun and attempted "to cuff"
him. Ball shoved Powell over and ran down Easton Avenue, the officers ran after him, Powell being closest. Powell yelled, "Halt Ball,
you're under arrest," and fired one shot high in the air but Ball continued running and Powell fired four more shots, two at his legs, one
at his buttocks, and he finally fell from a bullet in his back. It is claimed that this evidence was not material or relevant, that it was too
remote from the date of the robbery to indicate a consciousness of guilt and since it was of course prejudicial that he is entitled to a
new trial. But unexplained flight and resisting arrest even thirty days after the supposed commission of a crime is a relevant
circumstance (State v. Duncan, 336 Mo. 600, 611, 80 S.W.2d 147, 153), the remoteness of the flight goes to the weight of the
evidence rather than to its admissibility. 20 Am.Jur., Sec. 293, p. 274.

When Ball was finally subdued and arrested the officers took from his person and impounded a brown felt hat, "a brownish"
windbreaker type jacket, trousers, gray shirt and shoesthese were exhibits one and two, Ball admitted that they belonged to him
although his evidence tended to show that he had purchased the jacket after October 15. In identifying Ball, in addition to the scar on
his face, Krekeler was impressed with and remembered the brown ensemble, particularly the "tall brown hat." These items were of
course relevant and admissible in evidence and there is no objection to them. State v. Johnson, Mo., 286 S.W.2d 787, 792. The
appellant objects, however, in his motion for a new trial that a police officer was permitted to testify that $258.02 in currency and two
pennies were taken from his person. It is said that the introduction of these exhibits was "immaterial and irrelevant, neither tended to
prove nor disprove any of the issues involved in this case; that said money as seized at the time of the arrest was neither identified by
Mr. Krekeler nor by any other person as the money which was allegedly stolen from the A. L. Krekeler & Sons Jewelry Company on
the 15th day of October, 1958; that said evidence was considered by this jury to the prejudice of this defendant convincingly."

The circumstances in which this evidence was introduced were these: After the clothes were identified and introduced as exhibits one
and two the prosecuting attorney inquired of officer Powell, "Did you also seize his personal effects?" Defense counsel immediately
objected to any testimony relating to personal effects found on the defendant "at the time." The court overruled the objection and
state's counsel inquired, "Well Officer, what personal effects were seized?" Defense counsel, evidently knowing and anticipating,
objected "to any testimony relevant (sic) to any personal effects seized upon this Defendant at the time he was arrested by reason of
the fact it is immaterial and irrelevant and tends to neither prove nor disprove any facts involved and ask that the jury be discharged
and a mistrial be declared." The court overruled the objection and the officer said, "Ball's personal effects consisted of two hundred
and fifty eight dollars and two cents in cash, with the denominations of the bill(s), two one hundred dollar bills, a twentytwo
twenties, a ten, a five, three ones and two pennies. He had a ladies ring and a man's wristwatch. He had a crusifixion along with a
small pen knife and a black leather wallet. Maybe one or two other personal articles." All of these items were then marked as exhibits,
from three to nine, offered in evidence and described by the officer, exhibit three being the bills and pennies comprising the $258.02.
According to the officer Mr. Krekeler was unable to identify any of these articles or the money as having come from the jewelry store
robbery and there is no objection in the motion to any of the items other than the money and some of them were obviously not
prejudicial, for example the keys, a small penknife and wallet.

Unlike the roll of dimes in State v. Hampton, Mo., 275 S.W.2d 356, the testimony as to the $258.02 was not offered in proof of the
substantive fact of the crime. In that case the five-dollar roll of dimes wrapped in a roll of green paper was found on the defendant the
same day of the burglary and while the fact was a circumstance admissible in evidence it was held to not constitute substantive
evidence inconsistent with the hypothesis of the defendant's innocence of burglary. In State v. Gerberding, Mo., 272 S.W.2d 230, there
was no timely or proper objection to the proof but $4,000 was taken in a robbery and the appellant had $920 in currency in his topcoat
pocket when captured the day of the robbery. The proof of the money here was evidently on the theory that Ball did not have or was
not likely to have such a sum of money on his person prior to the commission of the offense. 1 Wharton, Criminal Evidence, Sec. 204,
p. 410. As to this the facts were that he had been out of the penitentiary about eight months and the inference the state would draw is
that he had no visible means of support and no employment and could not possibly have $258.02 except from robberies. Of course,
there was no such proof and Ball claimed that he had worked intermittently for a custodian or janitor of an apartment house and that
he had won the $258.02 in a series of crap games at a named place. Not only was Krekeler unable to identify the money or any of the
items on Ball's person as having come from the jewelry store so that in fact they were not admissible in evidence (annotation 3 A.L.R.
1213), the charge here was that Ball and his accomplice took jewelry of the value of $4,455.21 and $140 in cash from the cash
register. There was no proof as to the denomination of the money in the cash register, it was simply a total of $140. Here nineteen days
had elapsed, there was no proof that Ball had suddenly come into possession of the $258.02 (annotation 123 A.L.R. 119) and in all
these circumstances "The mere possession of a quantity of money is in itself no indication that the possessor was the taker of money
charged as taken, because in general all money of the same denomination and material is alike, and the hypothesis that the money
found is the same as the money taken is too forced and extraordinary to be receivable." 1 Wigmore, Evidence, Sec. 154, p. 601. In the
absence of proof or of a fair inference from the record that the money in Ball's possession at the time of his arrest came from or had
some connection with the robbery and in the absence of a plain showing of his impecuniousness before the robbery and his sudden
affluence (State v. Garrett, 285 Mo. 279, 226 S.W. 4), the evidence was not in fact relevant and in the circumstances was obviously
prejudicial for if it did not tend to prove the offense for which the appellant was on trial the jury may have inferred that he was guilty
of another robbery. State v. Bray, Mo. App., 278 S.W.2d 49; People v. Orloff, 65 Cal.App.2d 614, 620-621, 151 P.2d 288; annotation
123 A.L.R. loc. cit. 132-134 and compare the facts and circumstances in State v. Garrett, supra. The admission of the evidence in the
circumstances of this record infringed the right to a fair trial and for that reason the judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion by BARRETT, C., is adopted as the opinion of the Court en banc.
WESTHUES, EAGER, STORCKMAN and HOLLINGSWORTH, JJ., concur.
HYDE, C. J., and LEEDY and DALTON, JJ., dissent.

[A.M. No. MTJ-96-1110. June 25, 2001]
CONG. MANUEL N. MAMBA, M.D. ATTY, FRANCISCO N. MAMBA, JR., HON. GUILLERMO SUMIGAD, HON.
CALIXTO GENOVEZA, HON. MARTIN SORIANO, HON. LOURDES FAUSTO, HON. LORENZO FERMIN, HON.
ADORACION RAQUINIO, HON. LEONIDES FAUSTO, HON. DIOGENES BALIGOD, HON. LORETO MABBORANG,
HON. PETER SY, HON. NICCOLO MAMBA, LORETO MAMBA, JUAN TAGUBA, DOMINGO CAMARAT, SEVERINO
BUCAYU, CASIANO CHAVENTE, ILLUMINADO BALIGOD, FELICIANO SERRANO, TEOFILO URMA, REMIGIO
DE LA CRUZ, ABELARDO BAUIT, MARIANO MIRANDA, JR., ROMULO SERAFICA, CARLOS MANANGUIT,
ERNESTO FERMIN, ROGELIO FERNANDEZ, ERNESTO CENABRE, TRINIDAD BALUNSAT, MIGUEL PASON, GIL
BALORAN, DOMINGO CALLUENG, BERNARDO BENITO, JUAN TURINGAN, MARCELINO CORPUZ, IGNACIO
PASCUA, JR., LEONIDES FAUSTO, TEODORICO PASTOR, DOMINADOR CORSINO, GENEROSO AGLAUA,
ZACARIAS MAGGAY, SIMEON BENZON, PATRICIO TAGUIAM, LUCAS TAGUINOD, MA. GLORIA G. BALIGOD,
LAURO N. FAUSTO, EDGAR AGGABAO, RODOLFO CARDENAS, TERESITA ESPINOSA, PACIFICO C. BINULUAN,
ROGELIO SORIANO, ARTURO MAMBA, DR. EXSUPERIOR YUAGA, VIVIAN DE GUZMAN, EX-CONG. FRANCISCO
K. MAMBA, CRISTINA MAMBA, EDWIN LIU, PABLO DANGA, ALICE LOA, VICENTE TOLENTINO, NUMERIANO
MACAPULAY, ROLLY SEDANO, complainants, vs. JUDGE DOMINADOR L. GARCIA, MTC, TUAO, CAGAYAN,
respondent.

This is a resolution, which is more accurately a manifesto or a petition of concerned citizens of Tuao, Cagayan, denouncing certain
acts of Judge Dominador L. Garcia, Municipal Trial Court, Tuao, Cagayan, in connection with his handling of Criminal Case No. 399,
entitled People vs. Renato Bulatao. The complainants are then Representative of the Third District of Cagayan, the mayor and vice
mayor, ten (10) members of the Sangguniang Bayan, thirty-two (32) barrio captains, ten (10) LGU department heads of Tuao,
Cagayan, and eight (8) heads of non-governmental organizations or NGOs in the municipality of Tuao.

The resolution, dated November 4, 1996, was presented to this Court. It was adopted at an assembly led by Rep. Manuel N. Mamba
which picketed the municipal trial court on that day.[1] The "resolution" was treated as an administrative complaint and respondent
Judge Dominador L. Garcia was required to answer. The matter was referred to Executive Judge Orlando D. Beltran, Jr. of the
Regional Trial Court of Tuao, Cagayan, for investigation, report, and recommendation.[2]

Thereafter, an investigation was held during which the affidavits and sworn statements of NBI Special Investigator Ablezer Rivera,
the joint affidavit of NBI agents, Raul A. Ancheta and Paul D. Rivera, the sworn statement of the accused in Criminal Case No. 699,
Renato Bulatao, and the testimonies of Abner P. Cardenas, clerk of court, MTC, Tuao, Cagayan and Tomas Latauan, Jr., interpreter of
the same court, were presented. The gist of the evidence for the complainants is as follows:

On August 23, 1996, a complaint for violation of Presidential Decree No.1866 (illegal possession of firearms) was filed against a
certain Renato Bulatao by the Cagayan Provincial Police Command before the sala of respondent Judge Dominador L. Garcia of the
Municipal Trial Court, Tuao, Cagayan.[3] Respondent set the preliminary investigation on September 4, 1996, but the same was
subsequently postponed and reset to October 23, 1996 as respondent was not present, although the complaining officer, P/Sr. Inspector
Danny F. Salvador, appeared in court. On October 23, 1996, the preliminary investigation was again reset to October 30, 1996. On
October 29, 1996, the accused, Renato Bulatao, complained to the NBI that at the scheduled preliminary investigation on September 4,
1996, P/Sr. Inspector Salvador demanded P30,000.00 from him in consideration of the withdrawal of the criminal case against
him. According to Bulatao, the demand was reiterated by Salvador and respondent judge on October 23, 1996. As Bulatao told them
that he could not afford it, the amount was reduced to P6,000.00.

Based on Bulataos report, the NBI set out to entrap Salvador and respondent judge. The NBI gave Bulatao 12 pieces of P500.00
marked bills amounting to P6,000.00, which the latter would give to Salvador and respondent the next day.[4]
Accordingly, at about 7 o'clock in the morning of the following day, October 30, Bulatao met the NBI operatives in the house of
Francisco Mamba, Sr., former representative of the 3rd District of Cagayan, where the entrapment was planned. Bulatao was given a
tape recorder to record his conversation with whoever will receive the money. At 9 a.m., Bulatao went to the Municipal Trial Court
and waited for his case to be called. At 10:30 a.m., respondent went out of his chambers and talked to SPO2 Jonathan Santos and
SPO4 Carlos Poli, representatives of P/Sr. Inspector Salvador in the preliminary investigation. Respondent then called Bulatao and
led him and the two police officers to the office of the MTC court personnel. Inside, respondent asked Bulatao if he had the money
with him. When he answered in the affirmative, respondent took them to his chambers and left them there as he proceeded to his
sala. After handing the money to the police officers, Bulatao went out of respondent's chambers. Upon his signal, the NBI operatives
waiting outside respondent's court then rushed to the judge's chambers and arrested the two police officers after recovering 11 pieces
of P500.00 marked bills in their possession.[5]

After the matter was referred by this Court to Executive Judge Orlando Beltran for investigation, the latter scheduled several hearings
for the reception of evidence for the respondent. The records show that hearings were set on different dates (December 10, 1997,
January 30, 1998, February 10, 1998, March 3, 1998, March 10, 1998, September 10, 1998, October 9, 1998, November 11, 1998,
January 5, 1999, February 9, 1999, March 4, 1999, and April 5, 1999), but respondent did not appear despite due notice. Accordingly,
he was deemed to have waived the right to present evidence and the case was submitted for decision. Hence only his counter-affidavit
was considered, in which respondent claimed that it was Bulatao who asked permission to talk to the two police officers. He denied
that he took the three to his chambers.[6]

On the basis of these facts, the Investigating Judge made the following recommendation:

"The foregoing facts indisputably show that the respondent Judge allowed the use of his chambers by the two (2) police officers SPOII
Jonathan Santos and SPOIV Carlos Poli and Renato Bulatao, the accused in the criminal case for illegal possession of firearms, so that
they could talk about the "settlement" of Bulatao's case which was then pending preliminary investigation by the respondent
Judge. Although the two (2) witnesses, Abner Cardenas and Tomas Latauan, Jr., claimed that they did not hear the subject of the
conversation between Bulatao, on one hand, and the two (2) policemen and the respondent Judge Dominador L. Garcia, on the other,
before the three first-named persons went inside the chambers of the respondent Judge, it is not difficult to conclude that they must
have talked about the criminal case of Bulatao and its "settlement." For if the subject-matter of their conversation were other than said
"settlement" there appears no reason or purpose to allow the policemen and the accused to go inside the judge's chambers and there to
continue their conversation. Simply stated, the respondent judge allowed the two (2) policemen and the accused Renato Bulatao to
use his chambers so that they could consummate the arrangements for the dismissal of the case, particularly the payment of the sum of
money being demanded as consideration for such dismissal.

"In this connection, the undersigned Investigating Judge cannot help but refer to the taped conversation between the two (2) policemen
and Renato Bulatao inside the chamber of the respondent Judge. A portion of the translated dialogue between Poli and Bulatao, which
was in Ilocano, tends to show that the P6,000.00 pay-off handed by Bulatao to the policemen was not intended for the respondent
Judge but solely for the policemen and their superior, P/Sr. Inspector Salvador. However, it is not easy to disregard the implication
obvious from the said conversation that the respondent Judge was privy to the entire transaction. SPOIV Poli pointedly told Bulatao
"to take care of the Judge" which implies that the Judge knew of the pay-off being made and was willing to abide by the "deal"
provided he would be "taken care of" by Bulatao.

"Such acts of the respondent Judge are improper, to say the least. He, therefore, violated the duty of every Judge to uphold the
integrity of the judiciary and to avoid impropriety and the appearance of impropriety in all activities. (Mortel vs. Leido, Jr. 44 SCAD
567). It cannot be over-emphasized that a judge's official conduct should be free from the appearance of impropriety, and his personal
behavior, not only upon the bench and in the performance of official duties but also in his every day life, should be beyond
reproach. (Marcos, Sr. vs. Arcangel, 72 SCAD 1). Canon 2 of the Code of Judicial Conduct enjoins judges to avoid not just
impropriety in their conduct but even the mere appearance of impropriety. This is true not only in the performance of their official
duties but in all their activities, including their private life. They must conduct themselves in such a manner that they give no ground
for reproach. (Pedro San Juan vs. Judge Lore V. Bagalsera, RTC, BR. 23, Naga City, A. M. No. RTJ-97-1395, December 22,
1997). In this case, the acts of the respondent judge were clearly improper as he facilitated, if not participated in, the obviously
unauthorized/illegal transaction between the two (2) police officers and the accused Renato Bulatao for the settlement/dismissal of the
latter's criminal case, in consideration of a sum of money, particularly since the offense charged against Bulatao is a grievous one and
that it is one which is not allowed by law to be compromised.

"In view of all the foregoing, the undersigned Investigating Judge respectfully recommends that the respondent Judge Dominador L.
Garcia be found guilty of improper conduct and be punished accordingly.[7]"
The Investigating Judge's reliance on the tape-recorded conversation between Bulatao and the two police officers is erroneous. The
recording of private conversations without the consent of the parties contravenes the provisions of Rep. Act. No. 4200, otherwise
known as the Anti-Wire Tapping Law, and renders the same inadmissible in evidence in any proceeding.[8] The law covers even those
recorded by persons privy to the private communications, as in this case.[9] Thus, the contents of the tape recorder cannot be relied
upon to determine the culpability of respondent judge.
In all other respects, however, the findings of the Investigating Judge are in accordance with the evidence. We hold, however, that
respondent judge is guilty not just of improper conduct but of serious misconduct. Serious misconduct is such conduct which affects a
public officer's performance of his duties as such officer and not only that which affects his character as a private individual. For
serious misconduct to warrant a dismissal from the service, there must be reliable evidence showing that the judicial acts complained
of were corrupt or inspired by an intention to violate the law. It must (1) be serious, important, weighty, momentary, and not trifling;
(2) imply wrongful intention and not mere error of judgment; and (3) have a direct relation to and be connected with the performance
of his official duties.[10]

In the case at bar, it is clear that the crime of bribery was committed. Although the evidence may not be sufficient to support a
conviction in a criminal case, it is adequate for the purpose of these proceedings. The standards of integrity required of members of
the Bench are not satisfied by conduct which merely allows one to escape the penalties of the criminal law.[11] In an administrative
proceeding, such as this case, only substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as
adequate to support a conclusion, is required.[12]

To constitute bribery, the following must be shown: (1) the offender is a public officer within the scope of Art. 203; (2) the offender
accepts an offer or a promise or receives a gift or present by himself or through another; (3) such offer or promise is accepted, or gift
received by the public officer, (a) with a view to committing some crime; (b) in consideration of the execution of an act which does
not constitute a crime, but which is unjust; or (c) to refrain from doing something which it is his official duty to do; and (4) the act
which he agrees to perform is connected with the performance of his official duties.[13] From the records, it is evident that P/Sr.
Inspector Salvador, a public officer, solicited money from Bulatao in consideration of the withdrawal of the case against the
latter. The former categorically told the latter that he would withdraw the criminal case against Bulatao if Bulatao gives him
P30,000.00, which was later lowered to P6,000.00. The fact that two of his men came for the preliminary investigation and, without
hesitation, followed respondent judge to his chambers after hearing that Bulatao had the money, bears out Bulatao's
allegations. Although these circumstances do not show conclusively that respondent judge was privy to the crime of bribery, there is
substantial evidence showing that he was at least an accomplice to the crime who cooperated in the execution of the offense by
previous or simultaneous acts.[14] The following circumstances, as corroborated by the report of the NBI and the testimonies of two
employees of the MTC, who were disinterested witnesses, show that respondent judge knowingly and voluntarily cooperated with
P/Sr. Inspector Salvador in consummating the crime:

(1) On the day of the entrapment, respondent judge asked Bulatao if he had the money, and when he received an affirmative answer,
he took Bulatao and the two police officers to his chambers, told the police officers to receive whatever Bulatao would give them,[15]
and then left; and

(2) When Bulatao left respondent's chambers and gave the signal to the NBI operatives waiting outside, the marked bills were found
by the agents in the possession of SPO2 Jonathan Santos, as the latter was leaving the chambers of respondent judge with SPO4
Carlos Poli. As the Investigating Judge observed, respondent willingly allowed his chambers to be used for the consummation of the
illegal transaction. The actions of respondent implies a wrongful intention to commit an unlawful act while in the performance of his
official duties.

Canon 2 of the Code of Judicial Conduct enjoins judges to avoid not only impropriety but even the appearance of impropriety in all
their conduct. This includes not taking an undue interest in the settlement of criminal cases pending before them as this may
compromise the integrity and impartiality of their office.[16] As the visible representation of the law and of justice, their conduct must
be above reproach and suspicion.[17] By acting as an accomplice to P/Sr. Inspector Salvador, respondent judge violated not only the
law but also the Code of Judicial Conduct.

Nor does the fact that respondent committed misconduct during a preliminary investigation, which is non-judicial in character, exempt
him from the disciplinary power of this Court as the conduct of a preliminary investigation is only an addition to his judicial
functions.[18]

In Cabrera vs. Pajares,[19] where the payment of the money to respondent judge in his chambers was witnessed by an NBI agent, this
Court ordered his dismissal from the service. Likewise, in Court Administrator vs. Hermoso,[20] where the judge received money
from a party to a case pending before his sala and was entrapped by an NBI agent, this Court ordered his dismissal. In addition, the
erring judge is liable to the forfeiture of his leave credits and retirement benefits and his dismissal shall be with prejudice to
reemployment in any branch of the government or any of its agencies or instrumentalities, including government-owned and
controlled corporations, as provided by Section 9, Rule 14 of the Omnibus Rules Implementing Book V of Executive Order No. 292
(Administrative Code of 1987) and our current rulings.[21]

Respondent judge was previously convicted in two administrative cases filed before this Court. In A.M. No. MTJ-91-616, entitled
"Clodualdo Escobar vs. Garcia," the Court, in a resolution dated September l, 1992, found respondent guilty of palpable ignorance of
Rule 114, section 8 resulting in the denial of due process to the prosecution in a criminal case. Respondent was fined an amount
equivalent to 15 days salary with warning that a repetition of the same would be dealt with more severely. In another case, A.M. No.
MTJ-95-1049, entitled Eloisa Bernardo v. Garcia, the Court, in a resolution dated June 28, 1995, found respondent guilty of
deliberately delaying his decision in a civil case and falsifying certificates of service. He was reprimanded and ordered to pay a fine
of P5,000.00 with warning that a repetition of the same or similar acts will be dealt with more severely.

WHEREFORE, the Court finds respondent Judge Dominador L. Garcia guilty of serious misconduct and accordingly orders his
DISMISSAL from the service and the forfeiture of his leave credits and retirement benefits, with prejudice to reemployment in any
branch of the government or any of its agencies or instrumentalities, including government-owned and controlled corporations.

SO ORDERED.
G.R. No. 135882 June 27, 2001
LOURDES T. MARQUEZ, in her capacity as Branch Manager, UNION BANK OF THE PHILIPPINES, petitioner,
vs. HONORABLE ANIANO A. DESIERTO, in his capacity as OMBUDSMAN, ANGEL C. MAYOR-ALGO, JR., MARY
ANN CORPUZ-MANALAC AND JOSE T. DE JESUS, JR., in their capacity as Chairman and Members of the Panel, respectively,
respondents.

In the petition at bar, petitioner seeks to --
a. Annul and set aside, for having been issued without or in excess of jurisdiction or with grave abuse of discretion amounting to lack
of jurisdiction, respondents' order dated September 7, 1998 in OMB-0-97-0411, In Re: Motion to Cite Lourdes T. Marquez for indirect
contempt, received by counsel of September 9,1998, and their order dated October 14,1998, denying Marquez's motion for
reconsideration dated September 10, 1998, received by counsel on October 20, 1998.
b. Prohibit respondents from implementing their order dated October 14, 1998, in proceeding with the hearing of the motion to cite
Marquez for indirect contempt, through the issuance by this Court of a temporary restraining order and/or preliminary injunction.
1


The antecedent facts are as follows:
Sometime in May 1998, petitioner Marquez received an Order from the Ombudsman Aniano A. Desierto dated April 29, 1998, to
produce several bank documents for purposes of inspection in camera relative to various accounts maintained at Union Bank of the
Philippines, Julia Vargas Branch, where petitioner is the branch manager. The accounts to be inspected are Account Nos. 011-37270,
240-020718, 245-30317-3 and 245-30318-1, involved in a case pending with the Ombudsman entitled, Fact-Finding and Intelligence
Bureau (FFIB) v. Amado Lagdameo, et al. The order further states:
"It is worth mentioning that the power of the Ombudsman to investigate and to require the production and inspection of records and
documents is sanctioned by the 1987 Philippine Constitution, Republic Act No. 6770, otherwise known as Ombudsman Act of 1989
and under existing jurisprudence on the matter. It must be noted that R.A. 6770 especially Section 15 thereof provides, among others,
the following powers, functions and duties of the Ombudsman, to wit:

(8) Administer oaths, issue subpoena duces tecum and take testimony in any investigation or inquiry, including the power
to examine and have access to banks accounts and records;
(9) Punish for contempt in accordance with the Rules of Court and under the same procedure and with the same penalties
provided therein.

Clearly, the specific provision of R.A. 6770, a later legislation, modifies the law on the Secrecy of Bank Deposits (R.A.1405) and
places the office of the Ombudsman in the same footing as the courts of law in this regard."
2


The basis of the Ombudsman in ordering an in camera inspection of the accounts is a trail managers checks purchased by one George
Trivinio, a respondent in OMB-097-0411, pending with the office of the Ombudsman.

It would appear that Mr. George Trivinio, purchased fifty one (51) Managers Checks (MCs) for a total amount of P272.1 Million at
Traders Royal Bank, United Nations Avenue branch, on May 2 and 3, 1995. Out of the 51 MCs, eleven (11) MCs in the amount of
P70.6 million, were deposited and credited to an account maintained at the Union Bank, Julia Vargas Branch.
3


On May 26, 1998, the FFIB panel met in conference with petitioner Lourdes T. Marquez and Atty. Fe B. Macalino at the bank's main
office, Ayala Avenue, Makati City. The meeting was for the purpose of allowing petitioner and Atty. Macalino to view the checks
furnished by Traders Royal Bank. After convincing themselves of the veracity of the checks, Atty. Macalino advised Ms. Marquez to
comply with the order of the Ombudsman. Petitioner agreed to an in camera inspection set on June 3, 1998.
4


However, on June 4,1998, petitioner wrote the Ombudsman explaining to him that the accounts in question cannot readily be
identified and asked for time to respond to the order. The reason forwarded by the petitioner was that "despite diligent efforts and from
the accounts numbers presented, we can not identify these accounts since the checks are issued in cash or bearer. We surmised that
these accounts have long been dormant, hence are not covered by the new account number generated by the Union Bank system. We
therefore have to verify from the Interbank records archives for the whereabouts of these accounts.
5


The Ombudsman, responding to the request of the petitioner for time to comply with the order, stated: "firstly, it must be emphasized
that Union Bank, Julia Vargas Branch was depositary bank of the subject Traders Royal Bank Manager's Check (MCs), as shown at its
dorsal portion and as cleared by the Philippines Clearing House, not the International Corporate Bank.

Notwithstanding the facts that the checks were payable to cash or bearer, nonetheless, the name of the depositor(s) could easily be
identified since the account numbers x x x where said checks were deposited are identified in the order.

Even assuming that the accounts xxx were already classified as "dormant accounts," the bank is still required to preserve the records
pertaining to the accounts within a certain period of time as required by existing banking rules and regulations.

And finally, the in camera inspection was already extended twice from May 13, 1998 to June 3,1998 thereby giving the bank enough
time within which to sufficiently comply with the order."
6


Thus, on June 16, 1998, the Ombudsman issued an order directing petitioner to produce the bank documents relative to accounts in
issue. The order states:

Viewed from the foregoing, your persistent refusal to comply with Ombudsman's order in unjustified, and is merely
intended to delay the investigation of the case. Your act constitutes disobedience of or resistance to a lawful order issued
by this office and is punishable as Indirect Contempt under Section 3(b) of R.A. 6770. The same may also constitute
obstruction in the lawful exercise of the functions of the Ombudsman which is punishable under Section 36 of R.A. 6770.
7


On July 10,1998, petitioner together with Union Bank of the Philippines, filed a petition for declaratory relief, prohibition and
injunctions
8
with the Regional Trial Court, Makati City, against the Ombudsman.

The petition was intended to clear the rights and duties of petitioner. Thus, petitioner sought a declaration of her rights from the court
due to the clear conflict between RA No.6770, Section 15 and R.A. No. 1405, Sections 2 and 3.

Petitioner prayed for a temporary restraining order (TRO) because the Ombudsman and the other persons acting under his authority
were continuously harassing her to produce the bank documents relatives to the accounts in question. Moreover, on June 16, 1998, the
Ombudsman issued another order stating that unless petitioner appeared before the FFIB with the documents requested, petitioner
manager would be charged with indirect contempt and obstruction of justice.

In the meantime,
9
on July 14, 1998, the lower court denied petitioner's prayer for a temporary restraining order and stated us:

"After hearing the arguments of the parties, the court finds the application for a Temporary Restraining Order to be without
merit.

"Since the application prays for restraint of the respondent, in the exercise of his contempt powers under Section 15(9) in
relation to paragraph (8) of RA. 6770, known as " The Ombudsman Act of 1989", there is no great or irreparable injury
from which petitioners may suffer, if respondent is not so restrained. Respondent should he decide to exercise his contempt
powers would still have to apply with the court. x x x Anyone who, without lawful excuse x x x refuses to produce
documents for inspection, when thereunto lawfully required shall be subject to discipline as in case of contempt of Court
and upon application of the individual or body exercising the power in question shall be dealt with by the Judge of the First
Instance (now RTC) having jurisdiction of the case in a manner provided by the law (section 580 of the Revised
Administrative Code). Under the present Constitution only judges may issue warrants, hence, respondent should apply with
the Court for the issuance of the warrant needed for the enforcement of his contempt orders. It is in these proceedings
where petitioner may question the propriety of respondent's exercise of his contempt powers. Petitioners are not therefore
left without any adequate remedy.

"The questioned orders were issued with the investigation of the case of Fact-Finding and Intelligence Bureau vs. Amado
Lagdameo, et. al., OMB-0-97-0411, for violation of RA. 3019. Since petitioner failed to show prima facie evidence that the
subject matter of the investigation is outside the jurisdiction of the Office of the Ombudsman, no writ of injunction may be
issued by this Court to delay this investigation pursuant to section 14 of Ombudsman Act of 1989."
10


On July 20,1998, petitioner filed a motion for reconsideration based on the following grounds:
a. Petitioners' application for filed Temporary Restraining Order is not only to restrain the Ombudsman from exercising his contempt
powers, but to stop him from implementing his Orders dated April 29, 1998 and June 16, 1998: and
b. The subject matter of the investigation being conducted by the Ombudsman at petitioners' premises is outside his jurisdiction.
11


On July 23, 1998, the Ombudsman filed a motion to dismiss the petition for declaratory relief
12
on the ground that the Regional Trial
Court has no jurisdiction to hear a petition for relief from the findings and orders of the Ombudsman, citing R.A. No. 6770, Sections
14 and 27. On August 7, 1998, the Ombudsman filed an opposition to petitioner's motion for reconsideration dated July 20, 1998.
13


On August 19,1998, the lower court denied petitioner's motion for reconsideration,
14
and also the Ombudsman's motion to dismiss.
15


On August 21, 1998, petitioner received a copy of the motion to cite her for contempt, filed with the Office of the Ombudsman by
Agapito B. Rosales, Director, Fact Finding and Intelligence Bureau (FFIB).
16


On August 31, 1998, petitioner filed with the Ombudsman an opposition to the motion to cite her in contempt on the ground that the
filing thereof was premature due to the petition pending in the lower court.
17
Petitioner likewise reiterated that she had no intention to
disobey the orders of the Ombudsman. However, she wanted to be clarified as to how she would comply with the orders without her
breaking any law, particularly RA. No. 1405.
18


Respondent Ombudsman panel set the incident for hearing on September 7, 1998.
19
After hearing, the panel issued an order dated
September 7, 1998, ordering petitioner and counsel to appear for a continuation of the hearing of the contempt charges against her.
20


On September 10, 1998, petitioner filed with the Ombudsman a motion for reconsideration of the above order.
21
Her motion was
premised on the fact that there was a pending case with the Regional Trial Court, Makati City,
22
which would determine whether
obeying the orders of the Ombudsman to produce bank documents would not violate any law.

The FFIB opposed the motion,
23
and on October 14, 1998, the Ombudsman denied the motion by order the dispositive portion of
which reads:
"Wherefore, respondent Lourdes T. Marquez's motion for reconsideration is hereby DENIED, for lack of merit. Let the
hearing of the motion of the Fact Finding Intelligence Bureau (FFIB) to cite her for indirect contempt to be intransferrably
set to 29 October 1998 at 2:00 o'clock p.m. at which date and time she should appear personally to submit her additional
evidence. Failure to do so shall be deemed a waiver thereof."
24


Hence, the present petition.
25

The issue is whether petitioner may be cited for indirect contempt for her failure to produce the documents requested by the
Ombudsman. And whether the order of the Ombudsman to have an in camera inspection of the questioned account is allowed as an
exception to the law on secrecy of bank deposits (R.A. No.1405).

An examination of the secrecy of bank deposits law (R.A. No.1405) would reveal the following exceptions:
1. Where the depositor consents in writing;
2. Impeachment case;
3. By court order in bribery or dereliction of duty cases against public officials;
4. Deposit is subject of litigation;
5. Sec. 8, R.A. No.3019, in cases of unexplained wealth as held in the case of PNB vs. Gancayco.
26


The order of the Ombudsman to produce for in camera inspection the subject accounts with the Union Bank of the Philippines, Julia
Vargas Branch, is based on a pending investigation at the Office of the Ombudsman against Amado Lagdameo, et. al. for violation of
R.A. No. 3019, Sec. 3 (e) and (g) relative to the Joint Venture Agreement between the Public Estates Authority and AMARI.
We rule that before an in camera inspection may be allowed, there must be a pending case before a court of competent jurisdiction.
Further, the account must be clearly identified, the inspection limited to the subject matter of the pending case before the court of
competent jurisdiction. The bank personnel and the account holder must be notified to be present during the inspection, and such
inspection may cover only the account identified in the pending case.

In Union Bank of the Philippines v. Court of Appeals, we held that "Section 2 of the Law on Secrecy of Bank Deposits, as amended,
declares bank deposits to be "absolutely confidential" except:
(1) In an examination made in the course of a special or general examination of a bank that is specifically authorized by the Monetary
Board after being satisfied that there is reasonable ground to believe that a bank fraud or serious irregularity has been or is being
committed and that it is necessary to look into the deposit to establish such fraud or irregularity,
(2) In an examination made by an independent auditor hired by the bank to conduct its regular audit provided that the examination is
for audit purposes only and the results thereof shall be for the exclusive use of the bank,
(3) Upon written permission of the depositor,
(4) In cases of impeachment,
(5) Upon order of a competent court in cases of bribery or dereliction of duty of public officials, or
(6) In cases where the money deposited or invested is the subject matter of the litigation".
27


In the case at bar, there is yet no pending litigation before any court of competent authority. What is existing is an investigation by the
Office of the Ombudsman. In short, what the office of the ombudsman would wish to do is to fish for additional evidence to formally
charge Amado Lagdameo, et. al., with the Sandiganbayan. Clearly, there was no pending case in court, which would warrant the
opening of the bank account for inspection.

Zone of privacy are recognized and protected in our laws. The Civil Code provides that" [e]very person shall respect the dignity,
personality, privacy and peace of mind of his neighbors and other persons" and punishes as actionable torts several acts for meddling
and prying into the privacy of another. It also holds public officer or employee or any private individual liable for damages for any
violation of the rights and liberties of another person, and recognizes the privacy of letters and other private communications. The
Revised Penal Code makes a crime of the violation of secrets by an officer, revelation of trade and industrial secrets, and trespass to
dwelling. Invasion of privacy is an offense in special laws like the Anti-Wiretapping Law, the Secrecy of Bank Deposits Act, and the
Intellectual Property Code.
28


IN VIEW WHEREOF, we GRANT the petition. We order the Ombudsman to cease and desist from requiring Union Bank Manager
Lourdes T. Marquez, or anyone in her place to comply with the order dated October 14,1998, and similar orders. No costs.

SO ORDERED.

JOSEPH VICTOR G. EJERCITO v. SANDIGANBAYAN
G.R. Nos. 157294-95, 30 November 2006, Carpio Morales, J. (En Banc)

Plunder being thus analogous to bribery, the exception to RA 1405, otherwise known as the Bank Secrecy Law, applicable in cases of
bribery must also apply to cases of plunder. The fruit of the poisonous tree principle, which states that once the primary source (the
tree) is shown to have been unlawfully obtained, any secondary or derivative evidence (the fruit) derived from it is also
inadmissible, does not apply in cases of unlawful examination of bank accounts. RA 1405 does not provide for the application of this
rule. At all events, the Ombudsman is not barred from requiring the production of documents based solely on information obtained by
it from sources independent of its previous inquiry.

Joseph Victor G. Ejercito is the owner of Trust Account No. 858 which was originally opened at Urban Bank but which is now
maintained at Export and Industry Bank, which is the purchaser and owner now of the former Urban Bank and Urbancorp Investment,
Inc. He is also the owner of Savings Account No. 0116-17345-9 which was originally opened at Urban Bank but which is now
maintained at Export and Industry Bank, the purchaser and owner of the former Urban Bank and Urbancorp Investment, Inc.

In Criminal Case No. 26558, People v. Estrada, et al., for plunder, defined and penalized under Republic Act No. 7080 (R.A. 7080),
AN ACT DEFINING AND PENALIZING THE CRIME OF PLUNDER, the Special Prosecution Panel filed before the
Sandiganbayan a Request for Issuance of Subpoena Duces Tecum for the issuance of a subpoena directing the President of Export and
Industry Bank (EIB, formerly Urban Bank) or his/her authorized representative to produce the following documents during the
hearings scheduled:

I. For Trust Account No. 858;
1. Account Opening Documents;
2. Trading Order No. 020385 dated January 29, 1999;
3. Confirmation Advice TA 858;
4. Original/Microfilm copies, including the dorsal side, of the following:
a. Bank of Commerce MC # 0256254 in the amount of P2,000,000.00;
b. Urban bank Corp. MC # 34181 dated November 8, 1999 in the amount of P10,875,749.43;
c. Urban Bank MC # 34182 dated November 8, 1999 in the amount of P42,716,554.22;
d. Urban Bank Corp. MC # 37661 dated November 23, 1999 in the amount of P54,161,496.52;
5. Trust Agreement dated January 1999:
Trustee: Joseph Victor C. Ejercito
Nominee: URBAN BANK-TRUST DEPARTMENT
Special Private Account No. (SPAN) 858; and
6. Ledger of the SPAN # 858.

II. For Savings Account No. 0116-17345-9
SPAN No. 858
1. Signature Cards; and
2. Statement of Account/Ledger

III. Urban Bank Managers Check and their corresponding Urban Bank Managers Check
Application Forms, as follows:
1. MC # 039975 dated January 18, 2000 in the amount of P70,000,000.00;
2. MC # 039976 dated January 18, 2000 in the amount of P2,000,000.00;
3. MC # 039977 dated January 18, 2000 in the amount of P2,000,000.00;
4. MC # 039978 dated January 18, 2000 in the amount of P1,000,000.00;

The Special Prosecution Panel also filed a Request for Issuance of Subpoena Duces Tecum/Ad Testificandum directed to the
authorized representative of Equitable-PCI Bank to produce statements of account pertaining to certain accounts in the name of Jose
Velarde and to testify thereon. The Sandiganbayan granted both requests by Resolution and subpoenas were accordingly issued.

The Special Prosecution Panel filed still another Request for Issuance of Subpoena Duces Tecum/Ad Testificandum for the President
of EIB or his/her authorized representative to produce the same documents subject of the first Subpoena Duces Tecum and to testify
thereon on the hearings scheduled and subsequent dates until completion of the testimony. The request was likewise granted by the
Sandiganbayan. A Subpoena Duces Tecum/Ad Testificandum was accordingly issued.

Ejercito filed various motions to quash the various Subpoenas Duces Tecum/Ad Testificandum previously issued. In his Motion to
Quash, he claimed that his bank accounts are covered by R.A. No. 1405 (The Secrecy of Bank Deposits Law) and do not fall under
any of the exceptions stated therein. He further claimed that the specific identification of documents in the questioned subpoenas,
including details on dates and amounts, could only have been made possible by an earlier illegal disclosure thereof by the EIB and the
Philippine Deposit Insurance Corporation (PDIC) in its capacity as receiver of the then Urban Bank. The disclosure being illegal, he
concluded, the prosecution in the case may not be allowed to make use of the information.

Before the motion was resolved by the Sandiganbayan, the prosecution filed another Request for the Issuance of Subpoena Duces
Tecum/Ad Testificandum, again to direct the President of the EIB to produce, on the hearings scheduled, additional documents for
Savings Account No. 1701-00646-1. The prosecution also filed a Request for the Issuance of Subpoena Duces Tecum/Ad
Testificandum, directed to Aurora C. Baldoz, Vice President-CR-II of the PDIC for her to produce the following documents on the
scheduled hearings:
1. Letter of authority dated November 23, 1999 re: SPAN [Special Private Account
Number] 858;
2. Letter of authority dated January 29, 2000 re: SPAN 858;
3. Letter of authority dated April 24, 2000 re: SPAN 858;
4. Urban Bank check no. 052092 dated April 24, 2000 for the amount of P36, 572, 315.43;
5. Urban Bank check no. 052093 dated April 24, 2000 for the amount of P107,191,780.85;
and
6. Signature Card Savings Account No. 0116-17345-9.

The subpoenae prayed for in both requests were issued by the Sandiganbayan. Consequently, Ejercito filed an Urgent Motion to
Quash Subpoenae Duces Tecum/Ad Testificandum praying that the subpoena directed to Aurora Baldoz be quashed for the same
reasons which he cited in the motion to quash he had earlier filed, which the Sandiganbayan, in a Resolution, denied. Ejercito filed the
present petition for certiorari under Rule 65 assailing the Sandiganbayan Resolutions denying his Motions to Quash Subpoenas Duces
Tecum/Ad Testificandum, and Resolution denying his Motion for Reconsideration of the first two resolutions.

People posits that Trust Account No. 858 may be inquired into, not merely because it falls under the exceptions to the coverage of
R.A. 1405, but because it is not even contemplated therein. To People, the law applies only to deposits which strictly means the
money delivered to the bank by which a creditor-debtor relationship is created between the depositor and the bank.

ISSUES:
1.)Whether or not the Trust Account No. 858 is covered by the term deposit as used in R.A. 1405;
2.) Whether or not the Trust Account No. 858 and Savings Account No. 0116-17345-9 are excepted from the protection of R.A. 1405;
3.) Whether or not the extremely-detailed information contained in the Special Prosecution Panels requests for subpoena was
obtained through a prior illegal disclosure of Ejercitos bank accounts; and

4.) Whether or not the fruit of the poisonous tree doctrine or the exclusionary rule, which states that once the primary source (the
tree) is shown to have been unlawfully obtained, any secondary or derivative evidence (the fruit) derived from it is also
inadmissible, applicable in cases of unlawful examination of bank accounts

HELD:
The petition is DISMISSED.

The Sandiganbayan did not commit grave abuse of discretion in issuing the challenged subpoenae for documents pertaining to
Ejercitos Trust Account No. 858 and Savings Account No. 0116-17345-9 for the following reasons:

1. Plunder is excepted from the protection of RA 1405 otherwise known as The Secrecy of Bank Deposits Law.

R.A. 1405 is broad enough to cover Trust Account No. 858. However, the protection afforded by the law is not absolute. There being
recognized exceptions thereto, as above-quoted Section 2 provides. In the present case, two exceptions apply, to wit:
(1) The examination of bank accounts is upon order of a competent court in cases of bribery or dereliction of duty of public officials,
and
(2) The money deposited or invested is the subject matter of the litigation.

Ejercito contends that since plunder is neither bribery nor dereliction of duty, his accounts are not excepted from the protection of
R.A. 1405. Philippine National Bank v. Gancayco holds otherwise:

Cases of unexplained wealth are similar to cases of bribery or dereliction of duty and no reason is seen why these two classes of cases
cannot be excepted from the rule making bank deposits confidential. The policy as to one cannot be different from the policy as to the
other. This policy expresses the notion that a public office is a public trust and any person who enters upon its discharge does so with
the full knowledge that his life, so far as relevant to his duty, is open to public scrutiny.

Undoubtedly, cases for plunder involve unexplained wealth. The crime of bribery and the overt acts constitutive of plunder are crimes
committed by public officers, and in either case the noble idea that a public office is a public trust and any person who enters upon its
discharge does so with the full knowledge that his life, so far as relevant to his duty, is open to public scrutiny applies with equal
force.

Also, the plunder case now pending with the Sandiganbayan necessarily involves an inquiry into the whereabouts of the amount
purportedly acquired illegally by former President Joseph Estrada. The meaning of the phrase subject matter of the litigation as used
in R.A. 1405 is explained in Union Bank of the Philippines v. Court of Appeals, thus:

In Mellon Bank, N.A. v. Magsino, where the petitioner bank inadvertently caused the transfer of the amount of US$1,000,000.00
instead of only US$1,000.00, the Court sanctioned the examination of the bank accounts where part of the money was subsequently
caused to be deposited:

x x x Section 2 of [Republic Act No. 1405] allows the disclosure of bank deposits in cases where the money deposited is
the subject matter of the litigation. Inasmuch as Civil Case No. 26899 is aimed at recovering the amount converted by the
Javiers for their own benefit, necessarily, an inquiry into the whereabouts of the illegally acquired amount extends to
whatever is concealed by being held or recorded in the name of persons other than the one responsible for the illegal
acquisition.

Clearly, Mellon Bank involved a case where the money deposited was the subject matter of the litigation since the money
deposited was the very thing in dispute. x x x

In light then of the Courts pronouncement in Union Bank, the subject matter of the litigation cannot be limited to bank accounts
under the name of President Estrada alone, but must include those accounts to which the money purportedly acquired illegally or a
portion thereof was alleged to have been transferred. Trust Account No. 858 and Savings Account No. 0116-17345-9 in the name of
Ejercito fall under this description and must thus be part of the subject matter of the litigation.

Hence, these accounts are no longer protected by the Secrecy of Bank Deposits Law, there being two exceptions to the said law
applicable in this case, namely: (1)the examination of bank accounts is upon order of a competent court in cases of bribery or
dereliction of duty of public officials, and (2)the money deposited or invested is the subject matter of the litigation. Exception (1)
applies since the plunder case pending against former President Estrada is analogous to bribery or dereliction of duty, while exception
(2) applies because the money deposited in Ejercitos bank accounts is said to form part of the subject matter of the same plunder case.

2. The fruit of the poisonous tree doctrine or the exclusionary rule is inapplicable in cases of unlawful examination of bank
accounts.

Ejercitos attempt to make the exclusionary rule applicable to the instant case fails. R.A. 1405, it bears noting, nowhere provides that
an unlawful examination of bank accounts shall render the evidence obtained therefrom inadmissible in evidence. Section 5 of R.A.
1405 only states that

[a]ny violation of this law will subject the offender upon conviction, to an imprisonment of not more than five years or a fine of not
more than twenty thousand pesos or both, in the discretion of the court.

Even assuming arguendo, however, that the exclusionary rule applies in principle to cases involving R.A. 1405, the Court finds no
reason to apply the same in this particular case. The fruit of the poisonous tree doctrine presupposes a violation of law. If there was
no violation of R.A. 1405 in the instant case, then there would be no poisonous tree to begin with, and, thus, no reason to apply the
doctrine.

Hence, the fruit of the poisonous tree principle, which states that once the primary source (the tree) is shown to have been
unlawfully obtained, any secondary or derivative evidence (the fruit) derived from it is also inadmissible, does not apply in this
case. In the first place, R.A. 1405 does not provide for the application of this rule. Moreover, there is no basis for applying the same in
this case since the primary source for the detailed information regarding Joseph Victor G. Ejercitos bank accounts the investigation
previously conducted by the Ombudsman was lawful.

3. The extremely-detailed information was obtained by the Ombudsman from sources independent of its previous inquiry.

In a further attempt to show that the subpoenas issued by the Sandiganbayan are invalid and may not be enforced, Ejercito contends
that the information found therein, given their extremely detailed character, could only have been obtained by the Special
Prosecution Panel through an illegal disclosure by the bank officials concerned. He thus claims that, following the fruit of the
poisonous tree doctrine, the subpoenas must be quashed.

He further contends that even if, as claimed by People, the extremely-detailed information was obtained by the Ombudsman from
the bank officials concerned during a previous investigation of the charges against President Estrada, such inquiry into his bank
accounts would itself be illegal.

How the Ombudsman conducted his inquiry into the bank accounts of Ejercito is recounted by the People of the Philippines. At all
events, even if the challenged subpoenas are quashed, the Ombudsman is not barred from requiring the production of the same
documents based solely on information obtained by it from sources independent of its previous inquiry. The Ombudsman may conduct
on its own the same inquiry into the subject bank accounts that it earlier conducted last February-March 2001, there being a plunder
case already pending against former President Estrada.

To quash the challenged subpoenas would, therefore, be pointless since the Ombudsman may obtain the same documents by another
route. Upholding the subpoenas avoids an unnecessary delay in the administration of justice.

MANUFACTURERS HANOVER TRUST CO. v. GUERRERO
G.R. No. 136804 February 19, 2003

FACTS
The petition alleged the following:
On May 17, 1994, respondent Rafael Ma Guerrero fled before the Regional Trial Court of Mania against Manufacturers Hanover
Trust Co. and/or Chemical Bank.

Guerrero sought payment of damages allegedly for (1) illegally withheld taxed charged against interests on his checking account with
the Bank, (2) a returned check worth $18,000.00 due to signature verification problems; and (3) unauthorized conversion of his
account.

The bank filed its Answer alleging that Guerreros account is governed by New York law which does not permit any Guerreros
claims except actual damages.

Seeking the dismissal of Guerreros claims, the Bank filed a Motion for Partial Summary Judgment, supported by an affidavit of New
York attorney Alyssa Walden.

The RTC denied the Banks Motion for Partial Summary Judgment. The Court of Appeals also dismissed the petition for certiorari
and prohibition assailing the RTC Orders.

ISSUE
Whether the Walden affidavit does serve as proof of the New York law and jurisprudence

HELD
The Walden affidavit stated conclusions from the affiants personal interpretation and opinion of the facts of the case vis--vis, the
alleged laws and jurisprudence without citing any laws in particular. While the attached copies of some US court decisions do not
comply with Section 24 of Rule 132 on proof of official records or decisions of foreign courts. Thus, the Walden affidavit did not
prove the current state of New York law and jurisprudence.

Hence, the petition is denied for lack of merit and Court of Appeals decision is affirmed.

PEOPLE OF THE PHILIPPINES v. RONNIE RULLEPA y GUINTO
398 SCRA 567, 5 March 2003, EN BANC

Ronnie Rullepa y Guinto (Rullepa), a houseboy, was charged with Rape before the Regional Trial Court (RTC) of Quezon City for
allegedly having carnal knowledge with AAA, three (3) years of age, a minor and against her will and without her consent. AAA
described her abuse under the hands of Rullepa in a plain and matter-of-fact manner in her testimony. The victim and her mother
testified that she was only three years old at the time of the rape. However, the prosecution did not offer the victims certificate of live
birth or similar authentic documents in evidence.

Finding for the prosecution, the RTC rendered judgment, finding Rullepa guilty beyond reasonable doubt of rape and accordingly
sentenced him to death. The case was placed for automatic review of the Supreme Court.

ISSUE:
Whether or not the trial court erred in imposing the supreme penalty of death upon Rullepa.

HELD:
A persons appearance, where relevant, is admissible as object evidence, the same being addressed to the senses of the court. As to the
weight to accord such appearance, especially in rape cases, the Court in People v. Pruna laid down the guideline.

Under the guideline, the testimony of a relative with respect to the age of the victim is sufficient to constitute proof beyond reasonable
doubt in cases (a) and (b) above. In such cases, the disparity between the allegation and the proof of age is so great that the court can
easily determine from the appearance of the victim the veracity of the testimony. The appearance corroborates the relatives testimony.

As the alleged age approaches the age sought to be proved, the persons appearance, as object evidence of her age, loses probative
value. Doubt as to her true age becomes greater and, following United States v. Agadas, such doubt must be resolved in favor of the
accused. Because of the vast disparity between the alleged age (three years old) and the age sought to be proved (below twelve
years), the trial court would have had no difficulty ascertaining the victims age from her appearance. No reasonable doubt, therefore,
exists that the second element of statutory rape is present.

Whether the victim was below seven years old, however, is another matter. Here, reasonable doubt exists. A mature three and a half-
year old can easily be mistaken for an underdeveloped seven-year old. The appearance of the victim, as object evidence, cannot be
accorded much weight and the testimony of the mother is, by itself, insufficient.

As it has not been established with moral certainty that AAA was below seven years old at the time of the commission of the
offense, Rullepa cannot be sentenced to suffer the death penalty. Only the penalty of reclusion perpetua can be imposed upon him.

BPI Family Savings Bank v. CA, et al.
GR No. 122480; April 12, 2000

Facts: Petitioner BPI Family Savings Bank had an excess withholding taxes for the year 1989 amounting to P112,491.90. It indicated
in its 1989 Income Tax Return that it would apply the said amount as a tax credit for the succeeding taxable year, 1990. However
because of business losses, petitioner informed the Bureau of Internal Revenue (BIR) that it would claim the amount as a tax refund,
instead of applying it as a tax credit. When no action from the BIR was forthcoming, petitioner filed its claim with the Court of Tax
Appeals.

The CTA and the CA, however, denied the claim for tax refund. Since petitioner declared in its 1989 Income Tax Return that it would
apply the excess withholding tax as a tax credit for the following year, the Tax Court held that petitioner was presumed to have done
so. The CTA and the CA ruled that petitioner failed to overcome this presumption because it did not present its 1990 Return, which
would have shown that the amount in dispute was not applied as a tax credit. Hence, the CA concluded that petitioner was not entitled
to a tax refund.

Issue: Whether or not petitioner is entitled to the refund of P112,491.90, representing excess creditable withholding tax paid for the
taxable year 1989.

Held: It is undisputed that petitioner had excess withholding taxes for the year 1989 and was thus entitled to a refund amounting to
P112,491. Pursuant to Section 69 of the 1986 Tax Code which states that a corporation entitled to a refund may opt either (1) to obtain
such refund or (2) to credit said amount for the succeeding taxable year.

Petitioner presented evidence to prove its claim that it did not apply the amount as a tax credit.

A copy of the Final Adjustment Return for 1990 was attached to petitioner's Motion for Reconsideration filed before the CTA. A final
adjustment return shows whether a corporation incurred a loss or gained a profit during the taxable year. In this case, that Return
clearly showed that petitioner incurred P52,480,173 as net loss in 1990. Clearly, it could not have applied the amount in dispute as a
tax credit.

The BIR did not controvert the veracity of the said return. It did not even file an opposition to petitioner's Motion and the 1990 Final
Adjustment Return attached thereto.

Petitioner also calls the attention of this Court, as it had done before the CTA, to a Decision rendered by the Tax Court in CTA Case
No. 4897, involving its claim for refund for the year 1990. In that case, the Tax Court held that "petitioner suffered a net loss for the
taxable year 1990 . . . ." Respondent, however, urges this Court not to take judicial notice of the said case.

As a rule, "courts are not authorized to take judicial notice of the contents of the records of other cases, even when such cases have
been tried or are pending in the same court, and notwithstanding the fact that both cases may have been heard or are actually pending
before the same judge."[20]

Be that as it may, Section 2, Rule 129 provides that courts may take judicial notice of matters ought to be known to judges because of
their judicial functions. In this case, the Court notes that a copy of the Decision in CTA Case No. 4897 was attached to the Petition for
Review filed before this Court. Significantly, respondents do not claim at all that the said Decision was fraudulent or nonexistent.
Indeed, they do not even dispute the contents of the said Decision, claiming merely that the Court cannot take judicial notice thereof.

Respondents' reasoning underscores the weakness of their case. For if they had really believed that petitioner is not entitled to a tax
refund, they could have easily proved that it did not suffer any loss in 1990. Indeed, it is noteworthy that respondents opted not to
assail the fact appearing therein that petitioner suffered a net loss in 1990 in the same way that it refused to controvert the same
fact established by petitioner's other documentary exhibits

Technicalities and legalisms, however exalted, should not be misused by the government to keep money not belonging to it and
thereby enrich itself at the expense of its law-abiding citizens. If the State expects its taxpayers to observe fairness and honesty in
paying their taxes, so must it apply the same standard against itself in refunding excess payments of such taxes. Indeed, the State must
lead by its own example of honor, dignity and uprightness.

[G.R. No. 143276. July 20, 2004]
LANDBANK OF THE PHILIPPINES, petitioner, vs. SPOUSES VICENTE BANAL and LEONIDAS ARENAS-BANAL,
respondents.

FACTS: Spouses Vicente and Leonidas Banal, respondents, are the registered owners of agricultural land situated in San Felipe,
Basud, Camarines Norte. A portion of the land was compulsorily acquired by the Department of Agrarian Reform (DAR) pursuant to
Republic Act (R.A.) No. 6657,[1] as amended, otherwise known as the Comprehensive Agrarian Reform Law of 1988.
Respondents rejected the valuation of petitioner hence a summary administrative proceeding was conducted before the Provincial
Agrarian Reform Adjudicator (PARAD) to determine the valuation of the land. Eventually, the PARAD rendered its Decision
affirming the Landbanks valuation.

Dissatisfied with the Decision of the PARAD, respondents filed with the RTC a petition for determination of just compensation.
In determining the valuation of the land, the trial court based the same on the facts established in another case pending before it.

ISSUE: W/N the trial court erred in taking judicial notice of the average production figures in another case pending before it and
applying the same to the present case without conducting a hearing and without the knowledge or consent of the parties

HELD: Well-settled is the rule that courts are not authorized to take judicial notice of the contents of the records of other cases even
when said cases have been tried or are pending in the same court or before the same judge. They may only do so in the absence of
objection and with the knowledge of the opposing party, which are not obtaining here.

Furthermore, as earlier stated, the Rules of Court shall apply to all proceedings before the Special Agrarian Courts. In this regard,
Section 3, Rule 129 of the Revised Rules on Evidence is explicit on the necessity of a hearing before a court takes judicial notice of a
certain matter, thus:

SEC. 3. Judicial notice, when hearing necessary. During the trial, the court, on its own initiative, or on request of a
party, may announce its intention to take judicial notice of any matter and allow the parties to be heard thereon.

After the trial, and before judgment or on appeal, the proper court, on its own initiative or on request of a party, may take
judicial notice of any matter and allow the parties to be heard thereon if such matter is decisive of a material issue in the
case. (emphasis added)

The RTC failed to observe the above provisions. The RTC, in concluding that the valuation of respondents property is P703,137.00,
merely took judicial notice of the average production figures in the Rodriguez case pending before it and applied the same to this
case without conducting a hearing and worse, without the knowledge or consent of the parties.

ESTRELLA PIGAO, et. al. vs.SAMUEL RABANILLO
G.R. No. 150712 May 2, 2006

FACTS: In 1947, the late Eusebio Pigao and his family, settled on a government lot owned by the Peoples Homesite and Housing
Corporation (PHHC). A contract to sell was entered into by Eusebio and PHHC. In 1959, Eusebio executed a deed of assignment of
rights over one-half of the property in favor of respondent who proceeded to occupy the front half portion. In 1970, Eusebio executed
a deed of mortgage over the same half-portion of the property in favor of respondent. In 1973, title was issued in Eusebios name over
the entire property. In 1978, respondent executed an affidavit of adverse claim over the front half portion of the lot registered in
Eusebios name. This affidavit was duly annotated on said title. On June 17, 1979, Eusebio died.and was survived by his children,
herein petitioners.

In 1988, after the Office of the Register of Deeds of Quezon City was gutted by fire, petitioners were issued a reconstituted title in the
name of Eusebio which no longer carried the annotation of the adverse claim of respondent. In 1992, the subject lot was included in
the extrajudicial settlement of Eusebios estate and a new title was issued for the entire lot in the name of petitioners. Respondent
continued to occupy the front half portion through his tenant, Gil Ymata. On January 29, 1996, petitioners filed a case in the RTC of
Quezon City against respondent and Ymata wherein they sought to quiet their title over the entire lot and to recover possession of the
front half portion. They averred that Eusebios deed of assignment and deed of mortgage were clouds on their title which should be
nullified. The RTC ruled in favor of petitioners: CA reversed the RTC decision in favor of respondent.

Petitioners contend that when the final deed of sale was issued by PHHC in favor of Eusebio in 1973, this deed contained a prohibition
against the alienation of the lot that the applicant agree (d) not to sell, assign, encumber, mortgage, lease, sublet or in any other
manner affect his right under this contract, at any time, in any manner whatsoever, in whole or in part, without first obtaining the
written consent of the Corporation." To support their claim, they request this Court to take judicial notice of the fact that the pro-
forma conditional contracts-to- sell between PHHC and applicants. Petitioners failed to present during the trial the conditional contract
to sell between Eusebio and PHHC which they claimed that they did not have a copy thereof.

What they submitted to this Court was a
copy of a conditional contract to sell between a certain Armando Bernabe and the PHHC pertaining to a lot located at 94 K-5th St.,
Kamuning, Quezon City to prove the existence of the aforementioned condition.

Respondent objects to this attempt of petitioners to seek admission of evidence which was presented neither during trial nor on appeal.


ISSUES: WON the said conditional contract to sell between Armando Bernabe and PHHC may be given judicial notice

HELD: NO. We cannot take cognizance of this document the conditional contract to sell between Bernabe and the PHHC alleged to
be the pro-forma contract used by PHHC with its applicants - which petitioners are presenting for the first time. This document is not
among the matters the law mandatorily requires us to take judicial notice of. Neither can we consider it of public knowledge nor
capable of unquestionable demonstration nor ought to be known to judges because of their judicial functions.

We have held that:

Matters of judicial notice have three material requisites: (1) the matter must be one of common and general knowledge; (2) it must
be well and authoritatively settled and not doubtful or uncertain; and (3) it must be known to be within the limits of jurisdiction of the
court. The power of taking judicial notice is to be exercised by courts with caution. Care must be taken that the requisite notoriety
exists and every reasonable doubt on the subject should be promptly resolved in the negative. (emphasis supplied)

Consequently, for this document to be properly considered by us, it should have been presented during trial and formally offered as
evidence. Otherwise, we would be denying due process of law to respondent.

A document, or any article for that matter, is not evidence when it is simply marked for identification; it must be formally offered, and
the opposing counsel given an opportunity to object to it or cross-examine the witness called upon to prove or identify it. A formal
offer is necessary since judges are required to base their findings of fact and judgment only and strictly upon the evidence
offered by the parties at the trial. To allow a party to attach any document to his pleading and then expect the court to consider it as
evidence may draw unwarranted consequences. The opposing party will be deprived of his chance to examine the document and
object to its admissibility. The appellate court will have difficulty reviewing documents not previously scrutinized by the court below.
The pertinent provisions of the Revised Rules of Court on the inclusion on appeal of documentary evidence or exhibits in the records
cannot be stretched as to include such pleadings or documents not offered at the hearing of the case.

Besides, this document does not even pertain to the lot and parties involved here. Accordingly, it is neither relevant nor material
evidence. But even assuming that it were, then it would substantially affect the outcome of the case so respondent should have been
given the chance to scrutinize the document and object to it during the trial of the case. It is too late to present it now when nothing
prevented petitioners from introducing it before.

DEED OF ASSIGNMENT: NULL AND VOID for being contrary to public policy. Under PHHC rules, preference for the purchase
of residential lots from the PHHC was accorded to bona fide occupants of such lots.

Eusebio, as a bona fide occupant of the subject lot, had a vested right to buy the property. This did not, however, give him the
unbridled freedom to transfer his right to a third party, specially one who was unqualified to avail of it. Undoubtedly, the PHHC was
clothed with authority to determine if a person was qualified to purchase a residential lot from it. The right to purchase was a personal
right that the qualified applicant, as determined by PHHC, must personally exercise. As a personal right, it could not be transferred to
just another person.

Any transfer of rights, to be valid, must be in line with the policy of PHHC which was to provide "decent housing for those who may
be found unable otherwise to provide themselves therewith." Thus, any transfer of an applicants right to buy a lot was invalid if done
without the consent of PHHC. The same policy was enunciated by the terms of the deed of sale.
25
There is no showing that the
PHHCs approval for the assignment of half of the lot to respondent was ever obtained. Stated otherwise, there is no proof that
respondent would have been allowed to avail of the preferential rights exclusively granted to bona fide occupants of PHHC-owned
lots like Eusebio. Thus, the assignment of rights by Eusebio to respondent, who was not a bona fide occupant of the lot, frustrated the
public policy of the government. It should therefore be struck down as null and void.

G.R. NO. 152375, DECEMBER 13, 2011.
REPUBLIC OF THE PHILIPPINES, PETITIONER, VS. SANDIGANBAYAN (FOURTH DIVISION), JOSE L. AFRICA
(SUBSTITUTED BY HIS HEIRS), MANUEL H. NIETO, JR., FERDINAND E. MARCOS (SUBSTITUTED BY HIS HEIRS),
IMELDA R. MARCOS, FERDINAND R. MARCOS, JR., JUAN PONCE ENRILE, AND POTENCIANO ILUSORIO
(SUBSTITUTED BY HIS HEIRS), RESPONDENTS.

FACTS:
A case was filed against the respondents for before the Sandiganbayan (SB) for reconveyance, reversion, accounting, restitution, and
damages in relation to the allegation that respondents illegally manipulated the purchase of the major shareholdings of Cable and
Wireless Limited in Eastern Telecommunications Philippines, Inc. (ETPI). This case docketed as Civil Case No. 0009 spawned
numerous incidental cases, among them, Civil Case No. 0130, a petition instituted by Victor Africa (Son of the late Jose Africa) which
sought to nullify the orders of the PCGG directing him to account for the alleged sequestered shares in ETPI and to cease and desist
from exercising voting rights. The present respondents were not made parties either in Civil Case No. 0130. In the former case, Victor
Africa (Africa) was not impleaded in and so is plainly not a party thereto.

In the proceedings for Civil Case No. 0130, testimony of Mr. Maurice V. Bane (former director and treasurer-in-trust of ETPI) was
taken by way of deposition upon oral examination (Bane deposition) before Consul General Ernesto Castro of the Philippine Embassy
in London, England. The purpose was for Bane to identify and testify on the facts set forth in his affidavit so as to prove the ownership
issue in favor of the petitioner and/or establish the prima facie factual foundation for sequestration of ETPIs Class A stock.

As to Civil Case No. 009, the petitioner filed a motion (1
st
Motion) to adopt the testimonies of the witnesses in Civil Case No. 0130,
including the deposition of Mr. Maurice Bane which was denied by SB in its April 1998 Resolution because he was not available for
cross-examination. The petitioners did not in any way question the 1998 resolution, and instead made its Formal Offer of Evidence on
December 14, 1999. Significantly, the Bane deposition was not included as part of its offered exhibits. In rectifying this, they filed a
second motion with prayer for re-opening of the case for the purpose of introducing additional evidence and requested the court to
take judicial notice of the facts established by the Bane deposition. This was however denied by the SB in its November 6, 2000
resolution (2000 resolution). A third motion was filed by the petitioners on November 16, 2001 seeking once more to admit the Bane
deposition which the SB denied for the reason that the 1998 resolution has become final in view of the petitioners failure to file a
motion for reconsideration or appeal within the 15-day reglementary period.

ISSUE/S:
1. Whether the SB committed grave abuse of discretion in holding that the 1998 resolution has already attained finality and in
refusing to re-open the case.
2. Whether the Bane deposition is admissible under the rules of court and under the principle of judicial notice.

RULING:
1. The court ruled that the SBs ruling on the finality of its 1998 resolution was legally erroneous but did not constitute grave abuse
of discretion due to the absence of a clear showing that its action was a capricious and whimsical exercise of judgment affecting its
exercise of jurisdiction. The SBs ruling, although an erroneous legal conclusion was only an error of judgment, or, at best, an abuse
of discretion but not a grave one.

The 1998 resolution is an interlocutory decision, thus petition for certiorari is still premature since the rules of court provides that
certiorari should be availed in a situation where neither an appeal nor any plain, speedy and adequate remedy in the ordinary course of
law is available to the aggrieved party except if such remedy is inadequate or insufficient in relieving the aggrieved party of the
injurious effects of the order complained of. At the time of the 1
st
motion, the presentation of evidence has not yet concluded. The
remedy after the denial of the 1
st
motion should have been for the petitioner to move for a reconsideration to assert and even clarify its
position on the admission of the Bane deposition. But upon denial of the 2nd motion, petitioners should have already questioned it by
way of certiorari since it effectively foreclosed all avenues available to it for the consideration of the Bane deposition. Instead of doing
so, however, the petitioner allowed the 60-day reglementary period, under Section 4, Rule 65 of the Rules of Court, to lapse, and
proceeded to file its 3rd motion.

However, the court ruled that the Sandiganbayan gravely abused its discretion in ultimately refusing to reopen the case for the
purpose of introducing and admitting in evidence the Bane deposition. The Rules of Court does not prohibit a party from
requesting the court to allow it to present additional evidence even after it has rested its case provided that the evidence is rebuttal in
character, whose necessity, for instance, arose from the shifting of the burden of evidence from one party to the other; or where the
evidence sought to be presented is in the nature of newly discovered evidence. At the time the petitioner moved to re-open its case, the
respondents had not yet even presented their evidence in chief. The respondents, therefore, would not have been prejudiced by
allowing the petitioners introduction of the Bane deposition, which was concededly omitted through oversight.

2. Despite the cases being closely related, admissibility of the Bane deposition still needs to comply with the rules of court on the
admissibility of testimonies or deposition taken in a different proceeding. Depositions are not meant as substitute for the actual
testimony in open court of a party or witness. Generally, the deponent must be presented for oral examination in open court at the trial
or hearing otherwise, the adverse party may oppose it as mere hearsay. Cross-examination will test the truthfulness of the statements
of the witness; it is an essential safeguard of the accuracy and completeness of a testimony. Depositions from the former trial may be
introduced as evidence provided that the parties to the first proceeding must be the same as the parties to the later proceeding. In the
present case, the petitioner failed to establish the identity of interest or privity between the opponents of the two cases. While Victor
Africa is the son of the late respondent Jose Africa, the deposition is admissible only against him as an ETPI stockholder who filed
Civil Case No. 0130.

Further, the rule of judicial notice is not applicable in this case as it would create confusion between the two cases. It is the duty of
the petitioner, as a party-litigant, to properly lay before the court the evidence it relies upon in support of the relief it seeks, instead of
imposing that same duty on the court.

The petition was DISMISSED for lack of merit.



G.R. No. 119053 January 23, 1997
FLORENTINO ATILLO III, petitioner, vs. COURT OF APPEALS, AMANCOR, INC. and MICHELL LHUILLIER,
respondents.

This is a petition for review on certiorari of the decision of the respondent Court of Appeals in CA-G.R. No. 3677 promulgated on
August 4, 1994 affirming in toto the decision of Branch 7 of the Regional Trial Court of Cebu City in Civil Case No. CEB-9801
entitled "Florentino L. Atillo III versus Amancor, Inc. and Michell Lhuillier".

The material antecedents are as follows:

On August 15, 1985, respondent Amancor, Inc. (hereinafter referred to as AMANCOR for brevity), a corporation then owned and
controlled by petitioner Florentino L. Atillo III , contracted a loan in the amount of P1,000,000.00 with Metropolitan Bank and Trust
Company, secured by real estate properties owned by the petitioner.
1
Before the said loan could be paid, petitioner entered into a
Memorandum of Agreement dated June 14, 1988 (Annex "A" of the Complaint) with respondent Michell Lhuillier (hereinafter
referred to as LHUILLIER for brevity) whereby the latter bought shares of stock in AMANCOR. As a consequence of the foregoing
transaction, petitioner and LHUILLIER each became owner of 47% of the outstanding shares of stock of AMANCOR while the
officers of the corporation owned the remaining 6%.
2


In view of the urgent and immediate need for fresh capital to support the business operations of AMANCOR, petitioner and
LHUILLLER executed another Memorandum of Agreement on February 13, 1989 (Annex "B" of the Complaint) by virtue of which
LHUILLIER undertook to invest additional capital in AMANCOR.
3
As an addendum to the foregoing, a Supplemental Memorandum
of Agreement was entered into by the petitioner and LHUILLIER on March 11, 1989.
4
Relevant to the case at bar is a stipulation in
the said Supplemental Memorandum of Agreement which provides as follows:
4. F.L. Atillo III may dispose off (sic) his properties at P. del Rosario St., Cebu City which may involve pre-payment of
AMANCOR'S mortgage loan to the bank estimated at P300,000.00 and while AMANCOR may not yet be in the position
to re-pay said amount to him, it shall pay the interests to him equivalent to prevailing bank rate.
5


Pursuant to this stipulation, petitioner assumed AMANCOR's outstanding loan balance of P300,000.00 with Metropolitan Bank and
Trust Company. After offsetting the amount of P300,000.00 with some of the accounts that petitioner had with AMANCOR, the
amount which remained due to the petitioner was P199,888.89. Because of the failure of AMANCOR to satisfy its obligation to repay
petitioner, the latter filed a complaint for collection of a sum of money docketed as Civil Case No. Ceb-9801 against AMANCOR and
LHUILLLER before Branch 7 of the Regional Trial Court of Cebu City.

At the pre-trial conference, petitioner, AMANCOR and LHUILLIER, assisted by their respective counsels, stipulated on the
following:

1. That the parties admit the due execution and genuineness of the Memorandum of Agreement dated 14 June 1988 (Annex A), the
Memorandum of Agreement dated 13 February 1989 (Annex B and Supplemental Agreement dated 11 March 1989 (Annex C);
2. That the defendants admit that the claim of the plaintiff amounted to P199,888.89 as of October 1, 1990;
6

and submitted the following issues to be resolved by the trial court:
a. From the aforesaid Annexes A, B and C, is Michell J. Lhuillier personally liable to the plaintiff?
b. What rate of interests shall the defendant corporation and Michell J. Lhuillier, if the latter is liable, pay the plaintiff?
7

(Emphasis supplied.)

On the basis of the stipulation of facts and the written arguments of the parties, the trial court rendered a decision in favor of the
petitioner, ordering AMANCOR to pay petitioner the amount of P199,888.89 with interest equivalent to the bank rate prevailing as of
March 11, 1989. LHUILLIER was, however, absolved of any personal liability therefor.
8


It is from the trial court's conclusion of non-liability that petitioner appealed to respondent court, arguing therein that as LHULLLIER
signed the Memorandum of Agreement without the official participation nor ratification of AMANCOR, LHUILLIER should have
been declared jointly and severally liable with AMANCOR.
9


The respondent court found petitioner's contention bereft of merit and held in part that:
Contrary to plaintiffs-appellants (sic) allegation, the indebtedness of P199,888.89 was incurred by defendant AMANCOR,
INC., alone. A thorough study of the records shows that plaintiff's cause of action for collection of a sum of money arose
from "his payment of the defendant corporation's outstanding loan balance of P300,000.00 with Metropolitan Bank & Trust
Company" . . . Considering the allegations in the complaint and those contained in the Memorandum of Agreement, the
respondent court properly ruled that the liability was incurred by defendant AMANCOR, INC., singly. We grant that if
plaintiff really believes that the indebtedness was incurred by defendant Lhuillier in his personal capacity, he should not
have offsetted (sic) some of his accounts with the defendant corporation, . . . As it is, plaintiff could have ofted (sic) to sue
defendant Lhuillier in his personal capacity the whole amount of indebtedness and not implead the defendant corporation
as co-defendant.
xxx xxx xxx
. . . [T]he indebtedness was incurred by the defendant corporation as a legal entity to pay the mortgage loan. Defendant
Lhuillier acted only as an officer/agent of the corporation by signing the said Memorandum of Agreement.
10

Aggrieved by the decision of respondent court, petitioner brought this instant petition submitting the following issue for the
resolution of this Court:
When a party, by his judicial admissions, has affirmed that he has personal liability in a certain transaction, may a court
rule against such an admission despite clear indications that it was not affected by mistakes palpable or otherwise?
11

Petitioner claims that LHUILLIER made a judicial admission of his personal liability in his Answer wherein he stated that:
3.11. In all the subject dealings, it was between plaintiff and Lhuillier personally without the official participation of
Amancor, Inc.
xxx xxx xxx
3.14. Since the board of Amancor, Inc. did not formally ratify nor acceded (sic) to the personal agreement between
plaintiff and Lhuillier through no fault of the latter, the corporation is not bound and the actionable documents are, at most,
unenforceable insofar as the subject claim of plaintiff is concerned.
12

And on the basis of such admission, petitioner contends that the decision of the respondent court absolving LHUILLIER of
personal liability is manifest error for being contrary to law, particularly Section 4 of Rule 129 of the Rules of Court which
provides that:
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 contradicted only by showing that it was made through palpable mistake or that no such admission
was made.
Petitioner would want to further strengthen his contention by adverting to the consistent pronouncement of this Court that:
". . . an admission made in the pleadings cannot be controverted by the party making such admission and are conclusive as
to him, and that all proofs submitted by him contrary thereto or inconsistent therewith, should be ignored, whether
objection is interposed by the party or not . . .
13


We find petitioner's contention to be without merit and the reliance on the general rule regarding judicial admissions enunciated by the
abovementioned provision of law and jurisprudence misplaced.

As provided for in Section 4 of Rule 129 of the Rules of Court, the general rule that a judicial admission is conclusive upon the party
making it and does not require proof admits of two exceptions: 1) when it is shown that the admission was made through palpable
mistake, and 2) when it is shown that no such admission was in fact made.
14
The latter exception allows one to contradict an
admission by denying that he made such an admission.

For instance, if a party invokes an "admission" by an adverse party, but cites the admission "out of context", then the one making the
admission may show that he made no "such" admission, or that his admission was taken out of context.
This may be interpreted as to mean "not in the sense in which the admission is made to appear." That is the reason for the
modifier "such".
15
[Emphasis supplied.]

Here, petitioner appears to have taken the admissions made by LHUILLIER in paragraph 3.11 of his Answer "out of context".
Petitioner is seemingly misleading this Court by isolating paragraph 3.11 of the said Answer from the preceding paragraphs. A careful
scrutiny of the Answer in its entirety will show that paragraph 3.11 is part of the affirmative allegations recounting how LHUILLIER
was persuaded to invest in AMANCOR which was previously owned and managed by petitioner.
16
Paragraph 3.11 has reference to
the fact that in all investments made with AMANCOR through stock purchases, only petitioner and LHUILLIER dealt with each
other.
17
It is more than obvious that paragraph 3.11 has nothing to do with the obligation of AMANCOR to petitioner which is the
subject of the present case. Contrary to petitioner's allegations, LHUILLIER had categorically denied personal liability for
AMANCOR's corporate debts, and in the succeeding paragraphs of the said Answer asserted the following:

3.12. As evident in the wordings of par. 12 of the Actionable Memorandum of Agreement dated 13 February 1989 (Annex
B) and par. 4 of the actionable Supplemental Memorandum of Agreement dated 11 March 1989 (Annex C), Lhuillier did
not engage to personally pay the corporate loans secured by plaintiff's property as to release the property to plaintiff. On
the contrary, as explicitly stated in the aforesaid par. 4 of Annex C, ". . . while Amancor may not yet be in the position to
repay said amount to him, IT shall pay the interests to him equivalent to prevailing bank rate."
3.13. At most, therefore, Lhuillier . . . only agreed, for the corporation to repay plaintiff the amount of the pre-terminated
corporate loans with the bank and, pending improvement of Amancor's finances, for said corporation to pay interest at
prevailing bank rate. . . .
18
(Emphasis supplied.)

Furthermore, petitioner was well aware that LHUILLIER had never admitted personal liability for the said obligation. In fact, in
delineating the issues to be resolved by the trial court, both parties submitted for the determination of the court, the question of
whether or not LHUILLIER is personally liable for the obligation of AMANCOR to petitioner.
19
Moreover, as correctly observed by
respondent court, if petitioner really believed that the liability was incurred by LHULLLIER in his personal capacity, then he should
not have offset his accounts with those of AMANCOR's. The foregoing act of petitioner is a clear indication that he recognized
AMANCOR and not LHUILLIER as the obligor.

Granting arguendo that LHUILLIER had in fact made the alleged admission of personal liability in his Answer, We hold that such
admission is not conclusive upon him. Applicable by analogy is our ruling in the case of Gardner vs. Court of Appeals which allowed
a party's testimony in open court to override admissions he made in his answer. Thus:

The fact, however, that the allegations made by Ariosto Santos in his pleadings and in his declarations in open court
differed will not militate against the findings herein made nor support the reversal by respondent court. As a general rule,
facts alleged in a party's pleading are deemed admissions of that party and are binding upon it, but this is not an absolute
and inflexible rule. An answer is a mere statement of fact which the party filing it expects to prove, but it is not evidence.
As ARIOSTO SANTOS himself, in open court, had repudiated the defenses he had raised in his ANSWER and against his
own interest, his testimony is deserving of weight and credence. Both the Trial Court and the Appellate Court believed in
his credibility and we find no reason to overturn their factual findings thereon.
20
(Emphasis supplied.)

Prescinding from the foregoing, it is clear that in spite of the presence of judicial admissions in a party's pleading, the trial court is still
given leeway to consider other evidence presented. This rule should apply with more reason when the parties had agreed to submit an
issue for resolution of the trial court on the basis of the evidence presented. As distinctly stated in the stipulation of facts entered into
during the pre-trial conference, the parties agreed that the determination of LHUILLIER's liability shall be based on the Memoranda of
Agreement designated as ANNEXES "A", "B" and "C" of the Complaint. Thus, the trial court correctly relied on the provisions
contained in the said Memoranda of Agreement when it absolved LHUILLIER of personal liability for the obligation of AMANCOR
to petitioner.

Furthermore, on the basis of the same evidence abovementioned, respondent court did not err when it refused to pierce the veil of
corporate fiction, thereby absolving LHUILLIER of liability for corporate obligations and deciding the question in this wise:

The separate personality of the corporation may be disregarded, or the veil of corporation fiction may be pierced and the
individual shareholder may be personally liable (sic) to the obligations of the corporation only when the corporation is used
as "a cloak or cover for fraud or illegality, or to work an injustice, or where necessary to achieve equity or when necessary
for the protection of the creditors. This situation does not obtain in this case. In the case at bar, plaintiff-appellant failed to
show that defendant Lhuillier acted otherwise than what is required of him as an agent of a corporation. It does not appear
either that defendant-appellee Michel (sic) Lhuillier is jointly and severally liable with AMANCOR, INC., absent an
express stipulation to that effect and sans clear and convincing evidence as to his personal liability."
21


The foregoing pronouncement is based on factual findings of the lower court which were upheld by the respondent court, and which
are thus, conclusive upon us pursuant to the well-established rule that factual findings of the Court of Appeals, supported by
substantial evidence on the record, are final and conclusive and may not be reviewed on appeal.
22


ACCORDINGLY, finding no reversible error, the decision appealed from is hereby AFFIRMED and this petition is DENIED.

SO ORDERED.

Herrera-Felix vs. CA
G.R. no. 143736 August 11, 2004

FACTS:
St. Joseph Resource Development ,Inc. filed a complaint for sum of money against the spouses Restituto and Ofelia Felix
with regard to their outstanding obligation amounting to P 1,132,065.50. The trial court granted the respondents prayer for a writ of
preliminary attachment and on March 26, 1993, a copy of the writ of preliminary attachment, summons and complaint were served at
their residence through her sister Ma. Luisa Herrera. According to the sheriffs return, Ofelia Herrera-Felix was out of the country.

The Felix spouses, through their lawyer filed a motion praying for an extension of time to file an answer which was granted
by the court. However, the Felix spouses failed to file their answer thus the spouses were declared in default to which the resolution
was received by the counsel of Felix spouses through registered mail. Thereafter, some personal properties of the spouses were levied
and sold at a public auction on August 14, 1995. On September 13, 1996, the petitioner spouses filed a petition with the CA alleging
that the complaint and summons were handed over to her sister, Ma. Luisa Herrera, who was merely a visitor in her house and as such
was not a valid substituted service under the Rules of Court.

ISSUE: Whether or not there was a valid substituted service.

HELD:
The court acquires jurisdiction over the person of the defendant by service of the complaint and summons on him, either by
personal service or by substituted service or by extra-territorial service thereof or by his voluntary personal appearance before the
court or through counsel. In this case, the petitioner appeared before the court, through counsel, and filed a motion for ext ension of
time to file her answer to the complaint which the trial court granted. She even admitted in the said motion that she was served with a
copy of the complaint which the trial court granted. She even admitted in the said motion that she was served with a copy of the
complaint as well as the summons. The admissions made in a motion are judicial admissions which are binding on the party who made
them. Such party is precluded from denying the same unless there is proof of palpable mistake or that no such admission was made.

A voluntary appearance is a waiver of the necessity of a formal notice. An appearance in whatever form, without explicitly
objecting to the jurisdiction of the court over the person, is a submission to the jurisdiction of the court over the person.