Land Titles and Forgery

The Torrens System

The simplified system of titling lands was introduced by Sir Richard Robert Torrens in South Australia in 1857, known as the Torrens system. The system, also known as “title by registration” replaced the system of “title by deeds” (also known as “deeds system”), an old, expensive and complicated system of tracing deeds.[1] Stated differently, the Torrens system involves registration of title while the deeds system involves registration of instruments. Under the Torrens system, the certificate is guaranteed by the law, and, with certain exceptions, constitutes indefeasible title to the land mentioned therein[2]; unlike the deeds system which proof of ownership to the land is traced through a series of instruments affecting the land (also known as “chain of title”), hence, title to the land is often uncertain and unreliable.

The Torrens system therefore does away the need for a chain of title and instead puts a stop forever to any question of the legality of the title, except claims which were noted on the certificate itself at the time of registration or those that arose subsequent thereto. Once the title is registered, the owners can rest secure on their ownership and possession.[3] This principle of the Torrens system is also known as the curtain principle – one does not need to look behind the certificate of title and that ownership need not be proved by backtracking a series  of documents.

Act No. 496, or the Land Registration Act of 1903 enacted by the Philippine Commission placed all public and private lands in the Philippines under the Torrens system.[4] The principles of the Torrens system are recognized to the fullest extent in our registration law which is now the 1978 Property Registration Decree, which has codified all laws relative to land registration.[5]

However, the system does not furnish a shield for fraud, nor permit one to enrich himself at the expense of others. The indefeasibility of a title does not attach to titles secured by fraud and misrepresentation. While registration operates as a notice of the deed, contract or instrument to others, it does not add to its validity nor converts an invalid instrument into a valid one. The registration under the Torrens system is not an impediment to a declaration by the Courts of its invalidity.[6]

Forgery involving land titles and real properties

The following discussion will tackle on the legal principles governing falsification of land titles, deeds and other instruments affecting transfers of real property and other interests thereto.

1. Forged deed

Generally, a forged or fraudulent deed or any instrument effecting transfer of ownership is a nullity and conveys no title.[7] When the instrument presented to the Registry of Deeds for registration is forged, even if accompanied by the owner’s duplicate certificate of title, the registered owner does not thereby lose his title, and neither does the assignee or the mortgagee, for that matter, acquire any right or title to the property.[8] Accordingly, an innocent purchaser for value protected by law is one who purchases a titled land by virtue of a deed executed by the registered owner himself, not by a forged deed.[9] This principle is expressed under the third paragraph of Section 53 of P.D. 1529, otherwise known as the “Property Registration Decree” which reads:

Section 53. x x x.

x x x. After the entry of the decree of registration on the original petition or application, any subsequent registration procured by the presentation of a forged duplicate certificate of title, or a forged deed or other instrument, shall be null and void.

Hence, a forged deed conveys no title and any transaction that has transpired by virtue of the same document is an absolute nullity. Since no ownership was conveyed, the issued Transfer Certificate of Title by reason of the forged instrument has no basis at all. Consequently, the person who buys the real property in question cannot take refuge in the protection accorded by the Torrens system on titled lands.[10]

Furthermore, while one who buys from the registered owner does not need to look behind the certificate of title, one who buys from one who is not the registered owner is expected to examine not only the certificate of title but all factual circumstances necessary for him to determine if there are any flaws in the title of the transferor, or in his capacity to transfer the land. The Court has consistently applied the stricter rule when it comes to deciding the issue of good faith of one who buys from one who is not the registered owner, but one who exhibits a certificate of title.[11]

2. Innocent purchaser (buyer in good faith)

An innocent purchaser for value is one who buys the property of another without notice that some other person has a right to or interest therein and who then pays a full and fair price for it at the time of the purchase or before receiving a notice of the claim or interest of some other persons in the property. Buyers in good faith buy a property with the belief that the person from whom they receive the thing is the owner who can convey title to the property. Such buyers do not close their eyes to facts that should put a reasonable person on guard and still claim that they are acting in good faith.[12]

In order that the holder of a certificate for value issued by virtue of the registration of a voluntary instrument may be considered a holder in good faith and for value, the instrument registered should not be forged.[13] As mentioned earlier, an innocent purchaser for value is one who buys a titled land by virtue of a deed executed by the registered owner himself and not by a forged deed. It is important to determine whether a purchaser of the land is an innocent purchaser for value since the law protects them. The first sentence of the third paragraph of Section 53 of P.D. 1529 provides:

Section 53. x x x.

In all cases of registration procured by fraud, the owner may pursue all his legal and equitable remedies against the parties to such fraud without prejudice, however, to the rights of any innocent holder for value of a certificate of title. x x x.

(Emphasis supplied)

However, the second sentence of the above-cited provision (earlier quoted provision) operates as a qualification of the first sentence or rather a limitation to the concept of innocent purchaser[14] since it provides that if the subsequent registration was effected by means of forgery, the same shall be null and void. This is the reason why there can be no “buyer in good faith” when the instrument registered is forged. Thus, a purchaser who acquires a real property by virtue of a falsified deed of sale has no right whatsoever as against the true owner of the property even if he is a holder for value of a certificate of title. This usually happens when a person buys a property from a seller pretending to be the registered owner or an agent of the owner acting on the latter’s behalf without corresponding authority.

3. Forged deed conveys no title, exception

In the case of Spouses Peralta v. Heirs of Abalon[15], departing from the rule that a forged or fraudulent deed is a nullity and conveys no title, the Court applied the exception. The case involves a parcel of land registered under the name of Bernardina Abalon and fraudulently transferred to Restituto Rellama and who, in turn, subdivided the subject property and sold it separately to the Spouses Dominador and Ofelia Peralta; and Marissa, Leonil and Arnel, all surnamed Andal. Thereafter, Spouses Peralta and the Andals individually registered the respective portions of the land they had bought under their names. The heirs of Bernardina were claiming back the land, alleging that since it was sold under fraudulent circumstances, no valid title passed to the buyers. On the other hand, the buyers, who were now title holders of the subject parcel of land, averred that they were buyers in good faith and sought the protection accorded to them under the law. The Court in affirming the decision of the Court of Appeals, held that despite the fraud that marred the sale between Bernardina Abalon and Rellama, a fraudulent or forged document of sale may still give rise to a valid title if the certificate of title has already been transferred from the name of the true owner to the name of the forger or to the name indicated by the forger and remained as such, the land is considered to have been subsequently sold to an innocent purchaser, whose title is thus considered valid. The Court also said:

“The established rule is that a forged deed is generally null and cannot convey title, the exception thereto, pursuant to Section 55 of the Land Registration Act, denotes the registration of titles from the forger to the innocent purchaser for value. Thus, the qualifying point here is that there must be a complete chain of registered titles. This means that all the transfers starting from the original rightful owner to the innocent holder for value – and that includes the transfer to the forger – must be duly registered, and the title must be properly issued to the transferee. x x x.”

(Emphasis supplied)

Likewise in an earlier case, the Court ruled in Obsequio v. Court of Appeals[16] that reconveyance of the property in question in favor of the previous owner by reason of an alleged forged deed of sale is not proper. It held that the subsequent buyers of the property are considered “purchasers in good faith” and there is no showing nor even an allegation that they had any participation in the alleged forgery. Neither the buyers can be said negligent since at the time of the sale, the land was already registered in the name of the seller including the tax declaration. There is no annotation, defect or flaw in the title that would have aroused any suspicion as to its authenticity and such being the case, the buyers have the right to rely on what appears on the face of the certificate of title.

The old case of Fule v. De Legare[17] however, holds a similar ruling but with a slightly different factual situation. While it appears that at the time the petitioners bought the property from John Legare the property is not yet registered under the latter’s name, the Court held that this fact alone does not strip the petitioners’ status as innocent purchasers for value. Although the title was still under the name of respondent Emilia De Legare, the transfer certificate was already in the possession of her adopted son, John Legare. The Court anchored its ruling from Section 55 of Act No. 496 (Section 53 of P.D. 1529) which provides that such possession and its subsequent production to the petitioners operated as a “conclusive authority from the registered owner to the Register of Deeds to enter a new certificate.” Although the deed of sale in favor of John Legare was fraudulent, the fact remains that he was able to secure a registered title to the house and lot. It was this title which he subsequently conveyed to the petitioners.

Simply put, while the forger or the person who acquired the property through forgery acquires no right or title over the same, if he has successfully registered the property under his name, his subsequent transfer or encumbrance of the property in favor of an innocent third person who had relied on the correctness of the issued certificate of title grants the latter the right over the property and the court cannot disregard the same. This is a well recognized rule that a forged deed or even a void title may still be a source of a valid title.

However, this doctrine has no application where the owner still holds a valid and existing certificate of title covering the same interest in a realty; i.e., when the original owner retained possession of the title, but through fraud, another person secured a court order for the issuance of a copy thereof. The proper application of the exception is where the forger, thru insidious means, obtains the owner’s duplicate certificate of title, converts it in his name, and subsequently sells or otherwise encumbers it to an innocent holder for value, for in such a case the new certificate is binding upon the owner (Sec.55, Act 496; Sec. 53, P.D. No. 1529). So if the owner holds a valid and existing certificate of title, his would be indefeasible as against the whole world, and not that of the innocent holder’s – prior tempore potior jure (earlier in time, priority in right).[18]

4. Who is NOT an innocent purchaser; Exception to exception

A person dealing with registered land has a right to rely on the Torrens certificate of title itself and to dispense with the need of inquiring further EXCEPT: (1) when the party has actual knowledge of facts and circumstances that would impel a reasonably cautious man to make such inquiry; or (2) when the purchaser has knowledge of a defect or the lack of title in his vendor or of sufficient facts to induce a reasonably prudent man to inquire into the status of the title of the property in litigation. The presence of anything which excites or arouses suspicion should then prompt the vendee to look beyond the certificate and investigate the title of the vendor appearing on the face of said certificate. One who falls within the exception can neither be denominated an innocent purchaser for value nor a purchaser in good faith; and hence does not merit the protection of the law.[19]

A certificate of title issued to an innocent purchaser for value cannot be revoked on the ground that the deed of sale was falsified, if he had no knowledge of the fraud committed.[20] Otherwise, the purchaser cannot be deemed as a purchaser in good faith.

In the Peralta case, while the Court upheld the Andals as buyers in good faith, the other buyers, Spouses Peralta, were not. In upholding also the appellate court’s decision, the Court held that there is a factual finding that in purchasing the subject property, the spouses merely relied on the photocopy of the title provided by Rellama. A mere photocopy of the title should have made Spouses Peralta suspicious that there was some flaw in the title of Rellama, because he was not in possession of the original copy.

Thus, the exception to the general rule that a forged deed conveys no right or title as discussed above have no application when there is a showing that the purchaser (or even a mortgagee) of the property in question has actual knowledge of the fraud or forgery, or was placed under the circumstances that would impel him to make further inquiries about the property and its vendor (or mortgagor) but otherwise failed to do so. A purchaser in bad faith or a negligent purchaser is considered an exception to the exception.

5. Rule on Special Power of Attorney (SPA)

Section 64 of P.D. 1529 provides that any person may, by power of attorney, convey or otherwise deal with registered land and the same shall be registered with the Register of Deeds of the province or city where the land lies; and any instrument revoking the same shall be registered in like manner. In relation to this, Article 1874 of the Civil Code provides that when a sale of piece of land or any interest therein is through an agent, the authority of the latter shall be in writing; otherwise, the sale shall be void.

A special power of attorney is a continuing one and absent a valid revocation duly furnished to a third person, the same continues to have force and effect as against third persons who had no knowledge of such lack of authority.[21]

While the general rule is that every person dealing with registered land may safely rely on the correctness of the certificate of title, a higher degree of prudence is required from one who buys from a person who is not the registered owner, although the land object of the transaction is registered. In such a case, the buyer is expected to examine not only the certificate of title but all factual circumstances necessary for him to determine if there are any flaws in the title of the transferor. The buyer also has the duty to ascertain the identity of the person with whom he is dealing with and the latter’s legal authority to convey the property.[22]

Settled is the rule that every person dealing with an agent or any person other than the registered owner of the property is put upon inquiry and must discover upon his peril the authority of the agent, and this is especially true where the act of the agent is of unusual nature. If a person makes no inquiry, he is chargeable with knowledge of the agent’s authority, and his ignorance of that authority will not be any excuse.[23]

In the issue of whether or not the buyer of the property under a deed of sale executed in the name of the registered owner by a fake agent or attorney-in-fact is deemed a purchaser in good faith, the Court in Solivel v. Francisco[24] laid down the ruling based on two different scenarios.[25] In this case, the lower court upheld that the vendee is an innocent purchaser for value despite the fact that the power-of-attorney is forged. It applied the case of Blondeau v. Nano[26] which sustained foreclosure of a real estate mortgage under a deed which, though allegedly forged, had nonetheless been duly registered because one of the two co-owners had given the alleged forger not only his power-of-attorney but also possession of the title papers. However, the Supreme Court reversed the trial court’s decision applying instead the case of De Lara v. Ayroso[27] where it annulled a mortgage executed by an impostor who had, without authority, gained possession of the certificate of title thru the owner’s daughter and simulated the owner’s name to the deed of mortgage. The Court explained that in Blondeau, the owner’s negligence or acquiescence, if not actual connivance, had made possible the commission of the fraud, while in De Lara, the title was still in the name of the real owner when the land was mortgaged by the impostor. The mortgagee was defrauded not because they relied upon what appeared in a Torrens certificate of title — there was nothing wrong with the certificate — but because they believed the words of the impostor when he told them that he was the person named as owner in the certificate. Simply stated, a person cannot be regarded as a purchaser/mortgagee in good faith if he himself was negligent in the real estate transaction he entered into and failed to exercise the degree of prudence required from one who buys from a person who is not the registered owner.

6. The rule on mortgagees

Section 32 of P.D. 1529 extends the protection given to an innocent purchaser for value to an innocent mortgagee. The term “innocent purchaser for value” also includes an innocent lessee.[28] The said provision provides:

Section 32. x x x. Whenever the phrase “innocent purchaser for value” or an equivalent phrase occurs in this Decree, it shall be deemed to include an innocent lessee, mortgagee, or other encumbrancer for value.

The rule on good faith equally applies to mortgagees and even in lessees and other encumbrancers for value of the real property. So while a purchaser need not look behind the certificate of title and has the right to rely solely on what appears on its face, the same rule applies to lessees and mortgagees.

Thus, despite the fact that the mortgagor is not the owner of the mortgaged property, his title being fraudulent, the mortgage contract and any foreclosure sale arising therefrom are given effect by reason of public policy. This is the doctrine of “the mortgagee in good faith” based on the rule that all persons dealing with property covered by a Torrens Certificate of Title, as buyers or mortgagees, are not required to go beyond what appears on the face of the title. The public interest in upholding the indefeasibility of a certificate of title, as evidence of the lawful ownership of the land or of any encumbrance thereon, protects a buyer or mortgagee who, in good faith, relied upon what appears on the face of the certificate of title.[29]

Where the certificate of title is in the name of the mortgagor when the land is mortgaged, the innocent mortgagee for value has the right to rely on what appears on the certificate of title. In the absence of anything to excite suspicion, said mortgagee is under no obligation to look beyond the certificate and investigate the title of the mortgagor appearing on the face of said certificate. Although Article 2085 of the Civil Code provides that absolute ownership of the mortgaged property by the mortgagor is essential, the subsequent declaration of a title as null and void is not a ground for nullifying the mortgage right of a mortgagee in good faith.[30]

Likewise, the fact that the foreclosure of the mortgage and the subsequent auction sale were effected after the annotation of the adverse claim is of no moment. The foreclosure sale retroacts to the date of registration of the mortgage. The lien of the innocent mortgagee for value must be respected and protected.[31] As to third persons therefore, a prior registration of a lien creates a preference and even a subsequent registration of a much earlier claim will not diminish this preference.[32]

The mortgagees in the case of Llanto v. Alzona[33] entered into a contract of mortgage with the mortgagors pretending to be the owners of the property. In this case, the mortgagees first conducted a credit investigation, inspected the property and met the persons who represented themselves to be the owners of the property before they entered into the transaction. The Court, in upholding the validity of the contract, said that the doctrine of “mortgagee in good faith” is an exception to the rule enunciated under Article 2085 of the Civil Code which provides that one of the essential requisites of the contract of mortgage is that the mortgagor should be the absolute owner of the property to be mortgaged; otherwise, the mortgage is considered null and void.

However, this doctrine presupposes that the mortgagor, who is not the rightful owner of the property, has already succeeded in obtaining Torrens title over the property in his name and that, after obtaining the said title, he succeeds in mortgaging the property to another who relies on what appears on the title.[34] Hence, the doctrine of mortgagee in good faith does not apply to a situation where the title is still in the name of the rightful owner and the mortgagor is a different person pretending to be the owner. In such a case, the mortgagee is not an innocent mortgagee for value and the registered owner will generally not lose his title.[35] In the same vein, the doctrine has no application where the owner could not be charged with negligence in the keeping of its duplicate certificates of title or with any act which could have brought about the issuance of another title relied upon by the purchaser or mortgagee for value, as the innocent registered owner has a better right over the mortgagee in good faith. For the law protects and prefers the lawful holder of registered title over the transferee of a vendor bereft of any transmissible rights.[36] These situations are also the known exceptions to innocent purchasers in good faith as discussed above.

7. Banks as mortgagee

The rule is different however, with respect to banks and other financial institutions. The rule that persons dealing with registered lands can rely solely on the certificate of title does not apply to banks.[37] Banks are enjoined to exercise a higher degree of diligence, care, and prudence in handling real estate transactions, especially those involving registered lands. Thus, a banking institution is expected to exercise due diligence before entering into a mortgage contract.[38]

Unlike private individuals, banks cannot rely merely on the certificate of title offered by the mortgagor in ascertaining the status of mortgaged properties. Since its business is impressed with public interest, the mortgagee-bank is duty-bound to be more cautious even in dealing with registered lands. Thus, before approving a loan application, it is a standard operating practice for these institutions to conduct an ocular inspection of the property offered for mortgage and to verify the genuineness of the title to determine the real owners thereof. The apparent purpose of an ocular inspection is to protect the true owner of the property as well as innocent third parties with a right, interest or claim thereon from a usurper who may have acquired a fraudulent certificate of title thereto.[39] If it did not conduct such examination and investigation, it must be held guilty of gross negligence in granting the loans secured by the real property in question and the bank cannot be considered as a mortgagee in good faith.[40]

The Court in Rural Bank of Compostela v. Court of Appeals[41] has once again stated the rule on mortgagee in good faith with respect to banks, viz:
“Banks, indeed, should exercise more care and prudence in dealing even with registered lands, than private individuals, for their business is one affected with public interest, keeping in trust money belonging to their depositors, which they should guard against loss by not committing any act of negligence which amounts to lack of good faith by which they would be denied the protective mantle of the land registration statute, Act [No.] 496, extended only to purchasers for value and in good faith, as well as to mortgagees of the same character and description.”

Likewise, the due diligence required of banks extends even to persons regularly engaged in the business of lending money secured by real estate mortgages.[42] Same degree of diligence is also required with respect to investment, financing and realty corporations which because of the nature of their business, are expected to exercise a higher standard of diligence in ascertaining the status of the property, not merely relying on what appears on the face of the title.[43]

8. “Double sale” and forgery cannot co-exist

When a real property was sold to two different persons or more at the same time, the ownership of such immovable property is governed by Article 1544 of the Civil Code, otherwise known as the rule on “double sale” (or which is more appropriate as “multiple sale”). Said provision provides:

Art. 1544. If the same thing should have been sold to different vendees, x x x.

Should it be immovable property, the ownership shall belong to the person acquiring it who in good faith first recorded it in the Registry of Property.

Should there be no inscription, the ownership shall pertain to the person who in good faith was first in possession; and, in the absence thereof, to the person who presents the oldest title, provided there is good faith.

One example of a situation where the provision of the law could be properly applied is where the owner sold his property to a person while at the same time, his agent or any person acting on the owner’s behalf sold the same to another, the two sellers as well as the two different buyers being fully unaware of each other’s transaction, and all are acting in good faith. Simply speaking, there are two valid sales and the question of who among the two buyers has the right of ownership arises. In such a case, the law provides that the hierarchy of preference as to whom ownership shall belong is as follows:

1. first registrant in good faith;
2. first possessor in good faith;
3. the person who in good faith presents the oldest title

It is worth noting that in every case, good faith is an indispensable requirement. The law does not apply however, if the property is not registered under the Torrens system. The issue of buyer’s good faith or bad faith is relevant only where the subject of the sale is registered land, and the purchaser is buying the same from the registered owner whose title to the land is clean.[44] Moreover, the registration contemplated under Art. 1544 of the Code refers to registration under P.D. 1529.[45]

Inasmuch as the rule on double sale is premised on the existence of two or more valid sales of the same property, there is no “double sale” to speak of when there is fraud or forgery involved. Hence, Art. 1544 does not apply. In Fudot v. Cattleya Land, Inc.[46], the Court ruled that Art. 1544 is not applicable in the instant case – the second sale in favor of petitioner is without the consent of the other spouse and the latter’s signature in the deed being forged. The Court also cited the case of Remalante v. Tibe[47] where it ruled that the Civil Law provision on double sale is not applicable where there is only one valid sale, the previous sale having been found to be fraudulent. Likewise, in Espiritu and Apostol v. Valerio[48], where the same parcel of land was purportedly sold to two different parties, the Court held that despite the fact that one deed of sale was registered ahead of the other, Art. 1544 of the Civil Code will not apply where said deed is found to be a forgery, the result of this being that the right of the other vendee should prevail.

Remedy of the true owner or the aggrieved party

1. Direct attack on title

It is settled in this jurisdiction that the issue of the validity of title can only be assailed in an action expressly instituted for such purpose. A certificate of title cannot be attacked collaterally. This rule is provided under Section 48 of PD 1529 which states that:[49]

Section 48. Certificate not subject to collateral attack. ― A certificate of title shall not be subject to collateral attack. It cannot be altered, modified, or cancelled except in a direct proceeding in accordance with law.

In Lagrosa v. Court of Appeals[50], it was stated that it is a well-known doctrine that the issue as to whether title was procured by falsification or fraud as advanced by petitioner can only be raised in an action expressly instituted for the purpose. A Torrens title can be attacked only for fraud, within one year after the date of the issuance of the decree of registration. Such attack must be direct, and not by a collateral proceeding. The title represented by the certificate cannot be changed, altered, modified, enlarged, or diminished in a collateral proceeding. In Carvajal v. Court of Appeals[51], it was ruled that an application for registration of an already titled land constitutes a collateral attack on the existing title. The title may be challenged only in a proceeding for that purpose, not in an application for registration of a land already registered in the name of another person. After one year from its registration, the title is incontrovertible and is no longer open to review.[52]

2. Action for reconveyance

After the lapse of one year, a decree of registration is no longer open to review or attack, although its issuance is attended with fraud.[53] This does not mean, however, that the aggrieved party is without remedy at law. If the property has not as yet passed to an innocent purchaser for value, an action for reconveyance is still available. The sole remedy of the land owner whose property has been wrongfully or erroneously registered in another’s name is, after one year from the date of the decree, not to set aside the decree, but, respecting the decree as incontrovertible and no longer open to review, to bring an ordinary action in the ordinary court of justice for reconveyance or, if the property has passed into the hands of an innocent purchaser for value, for damages.[54]

It has been held that an original owner of registered land may seek annulment of the transfer thereof on the ground of fraud and the proper remedy is reconveyance.[55] An action for reconveyance is a legal and equitable remedy that seeks to transfer or reconvey property, wrongfully registered in another person’s name, to its rightful owner. To warrant reconveyance of the land, the plaintiff must allege and prove, among others, ownership of the land in dispute and the defendant’s erroneous, fraudulent or wrongful registration of the property.[56] In the action for reconveyance, the decree of registration is highly respected as incontrovertible; what is sought instead is the transfer of the property wrongfully or erroneously registered in another’s name to its rightful owner or to the one with a better right.[57]

In New Regent Sources, Inc. v. Tanjuatco[58], the Court enumerated the four requisites that must concur for an action for reconveyance to prosper, to wit:

“To warrant a reconveyance of the land, the following requisites must concur: (1) the action must be brought in the name of a person claiming ownership or dominical right over the land registered in the name of the defendant; (2) the registration of the land in the name of the defendant was procured through fraud or other illegal means; (3) the property has not yet passed to an innocent purchaser for value; and (4) the action is filed after the certificate of title had already become final and incontrovertible but within four years from the discovery of the fraud or not later than 10 years in the case of an implied trust. x x x.”

Reconveyance is based on Section 53 of P.D. 1529 which provides that in all cases of registration procured by fraud, the owner may pursue all his legal and equitable remedies against the parties to such fraud without prejudice, however, to the rights of any innocent holder for value of a certificate of title. In civil law, the basis of an action for reconveyance is the trust created by virtue of Art. 1456 of the Civil Code which provides that a person acquiring property through fraud becomes by operation of law a trustee of an implied trust for the benefit of the real owner of the property. The presence of fraud creates an implied trust in favor of the plaintiffs, giving them the right to seek reconveyance of the property from the private respondents. The aggrieved party may file an action for reconveyance based on implied or constructive trust, which prescribes in ten years from the date of the issuance of the Certificate of Title over the property provided that the property has not been acquired by an innocent purchaser for value.[59]

While it is true that an action for reconveyance can prescribe or can be barred by statute of limitations, an action for reconveyance based on a void contract is imprescriptible.[60] Thus, the action based on a fictitious, fraudulent or forged deed may be brought by the aggrieved party at any time.[61]

3. Action for damages

When the property has already passed into the hands of an innocent purchaser for value, an action for reconveyance is no longer appropriate. This is so because as a rule, a purchaser in good faith is an exception to the general rule that a forged deed conveys no title. Nonetheless, the true owner is not without recourse. He can still file an action for damages against the person/s responsible for his loss of right or interest in his property.

A certificate of title issued to an innocent purchaser and for value cannot be revoked on the ground that the deed of sale was falsified, if he had no knowledge of the fraud committed. The recourse of the person prejudiced is to bring an action for damages against those who caused or employed the fraud.[62] The Court cannot disregard the rights of an innocent purchaser for value and order the total cancellation of the certificate for that would impair public confidence in the certificate of title.[63]

An action for damages should be brought within ten years from the date of issuance of the questioned certificate of title pursuant to Article 1144 of the Civil Code.[64]

4. Cancellation of title

An action for cancellation of title is applicable where there are two titles issued to different persons for the same lot. Where the same parcel of land is covered by two titles, necessarily when one of the two titles is held to be superior over the other, the latter should be declared null and void and should be cancelled.[65] In case of forgery, this rule contemplates a situation where the true owner despite retaining possession of his duplicate certificate, through fraud, another person succeeded in selling the property in his favor and another certificate of title was issued as a result thereof.[66]

The general rule is that where two certificates of title are issued to different persons covering the same land in whole or in part, the earlier date must prevail as between the original parties, and in case of successive registration where more than one certificate is issued over the land, the person holding under the prior certificate is entitled to the land as against the person who relies on the second certificate.[67] This principle is based on the maxim prior est in tempore, potior est in jure (first in time, stronger in right) which is being followed in our jurisdiction in land registration matters.[68]

It should be noted also that an action for cancellation of title is not an attack on the title. An action or proceeding is deemed an attack on a title when its objective is to nullify the title, thereby challenging the judgment pursuant to which the title was decreed. The attack is direct when the objective is to annul or set aside such judgment, or enjoin its enforcement. On the other hand, the attack is indirect or collateral when, in an action to obtain a different relief, an attack on the judgment is nevertheless made as an incident thereof.[69]

With respect to the aggrieved party however, the Court ruled in Gatioan v. Gaffud[70] that the purchaser from the owner of the later certificate and his successors, should resort to his vendor for redress, rather than molest the holder of the first certificate and his successors, who should be permitted to rest secure their title.

5. Recovery from the Assurance Fund

The Assurance Fund is intended to relieve innocent persons from the harshness of the doctrine that a certificate of title is conclusive evidence of an indefeasible title to the land.[71]

If the property has already passed into the hands of an innocent purchaser for value, the remedy is to file an action for damages from the person who allegedly registered the property through fraud, or if he had become insolvent or if the action is barred by prescription, to file an action for recovery against the Assurance Fund under Section 95 of P.D. 1529 within a period of six years from the time the right to bring such action accrues.[72]

Section 95 of P.D. 1529 provides:

Section 95. Action for compensation from funds. A person who, without negligence on his part, sustains loss or damage, or is deprived of land or any estate or interest therein in consequence of the bringing of the land under the operation of the Torrens system of arising after original registration of land, through fraud or in consequence of any error, omission, mistake or misdescription in any certificate of title or in any entry or memorandum in the registration book, and who by the provisions of this Decree is barred or otherwise precluded under the provision of any law from bringing an action for the recovery of such land or the estate or interest therein, may bring an action in any court of competent jurisdiction for the recovery of damages to be paid out of the Assurance Fund.

The foregoing provision states all the requisites and conditions necessary before a person may recover from the Assurance Fund. In one case[73], the Court denied the petitioner’s claim against the Assurance Fund. The Court held in this wise:

“Petitioner’s claim against the Assurance Fund must necessarily fail. Its situation does not come within the ambit of the cases protected by the Assurance Fund. It was not deprived of land in consequence of bringing it under the operation of the Torrens system through fraud or in consequence of any error, omission, mistake or misdescription in the certificate of title. It was simply a victim of unscrupulous individuals. More importantly, it is a condition sine qua non that the person who brings the action for damages against the Assurance Fund be the registered owner and, as the holders of transfer certificates of title, that they be innocent purchasers in good faith and for value. And we have already established that petitioner does not qualify as such.”

An action for compensation from the Assurance Fund must be filed against the Register of Deeds of the province or city where the land is situated and the National Treasurer as defendants when “such action is brought to recover for loss or damage or for deprivation of land or any estate or interest therein arising wholly through fraud, negligence, omission, mistake or misfeasance of the court personnel, Register of Deeds, his deputy, or other employees of the registry in the performance of their respective duties.” (Section 96, Presidential Decree No. 1529). If “such action is brought to recover for loss or damage or for deprivation of land or any interest therein arising through fraud, negligence, mistake or misfeasance of persons other than court personnel, the Register of Deeds, his deputy or other employees of the registry,” the action must be brought against the Register of Deeds, the National Treasurer, as well as other persons as co-defendants.[74]

The claim against the Assurance Fund must be brought within a period of six (6) years from the time the right to bring such action first occurred.[75]

6. Criminal case

6.1 Falsification

Forgery is a crime defined and penalized under Chapter I, Title IV, Book II of the Revised Penal Code which is Crimes Against Public Interest. Crimes categorized under this title are those involving fraud, deceit and falsity against the public at large. Falsification is the term applied by the Code for forgery of documents, whether it is a public, private or commercial document, although the Code did not specifically provide the definition of each.

A deed having been acknowledged before a Notary Public is considered a public document and an unnotarized deed is considered a private document.

Article 171 of the Revised Penal Code punishes falsification of documents committed by a public officer taking advantage of his official position while Article 172 of the same Code punishes falsification committed by a private individual and the use of such falsified document to the damage of a third party or with the intent to cause such damage.

Falsification of deeds, power of attorneys or other instruments affecting real properties is punishable under Art. 171 or Art. 172 of the RPC if committed by a public officer or a private individual, respectively. It should be noted however, that with respect to private individuals, based from the reading of the said provisions, ‘damage to third party or intent to cause such damage’ is not an element of the crime of falsification of public or commercial documents, whereas the same is material when it comes to private documents.

Stated differently, falsification in Article 171 by public officers, whether the document is private, public or commercial, and falsification in the first paragraph of Article 172 by private individuals which pertains to public or commercial documents, are committed by the mere performance of any of the acts specified therein (acts of falsification enumerated in Article 171); while falsification in the second paragraph of Article 172 by private individuals which pertains to private documents, is committed by the performance of the acts of falsification enumerated in Article 171 coupled with the damage to the third party or with intent to cause such damage even without actual damage. The element of damage therefore is not necessary when the document involved is a public or commercial document.

The rationale for the distinction is provided by the Court in the case of People v. Pacana[76], citing the December 23, 1885 decision of the Supreme Court of Spain, to wit:

“x x x[I]n the falsification of public or official documents, whether by public officials or by private persons, it is unnecessary that there be present the idea of gain or the intent to injure a third person, for the reason that, in contradiction to private documents, the principal thing punished is the violation of the public faith and the destruction of the truth as therein solemnly proclaimed.”

Aside from actions to redeem the property, the true owner of the property or any person aggrieved by reason of the alleged forgery may pursue a criminal action against the wrongdoer and may file an information for Falsification of Public Document under the RPC.

In Recebido v. People[77], while the petitioner admits that the deed of sale that was in his possession is a forged document, he nonetheless, argues that the fact remains that there is no proof that he authored such falsification or that the forgery was done under his direction. In rejecting this claim and affirming his conviction for Falsification of Public Document, the Court held that the petitioner was in possession of the forged deed of sale which purports to sell the subject land from the private complainant to him and given this factual backdrop, the petitioner is presumed to be the author of the forged deed of sale, despite the absence of any direct evidence of his authorship of the forgery. Since the petitioner is the only person who stood to benefit by the falsification of the document found in his possession, it is presumed that he is the material author of the falsification.

6.2 Estafa through falsification

When the offender commits on a public, official or commercial document any of the acts of falsification enumerated in Article 171 of the RPC as a necessary means to commit another crime like estafa, theft or malversation, the two crimes form a complex crime. Under Article 48 of the Code, there are two classes of a complex crime. A complex crime may refer to a single act which constitutes two or more grave or less grave felonies, or to an offense as a necessary means for committing another.[78]

The falsification of a public, official, or commercial document may be a means of committing estafa, because before the falsified document is actually utilized to defraud another, the crime of falsification has already been consummated, damage or intent to cause damage not being an element of the crime of falsification of public, official or commercial document. In other words, the crime of falsification has already existed. Actually utilizing that falsified public, official or commercial document to defraud another is estafa. But the damage is caused by the commission of estafa, not by the falsification of the document. Therefore, the falsification of the public, official or commercial document is only a necessary means to commit estafa.[79]

In Milla v. People[80], the petitioner was held guilty of estafa through falsification of public documents because he misrepresented himself to have the authority to sell the subject property, and it was precisely this misrepresentation that prompted private respondent MPI to purchase it. Because of its reliance on his authority and on the falsified Deed of Absolute Sale and TCT No. 218777, MPI parted with its money.

To be convicted of the complex crime of estafa through falsification of public document, all the elements of the two crimes of estafa and falsification of public document must exist. To secure a conviction for estafa under Article 315, par. 2(a) (by means of false pretenses or fraudulent acts) of the Revised Penal Code, the following requisites must concur:

1. The accused made false pretenses or fraudulent representations as to his power, influence, qualifications, property, credit, agency, business or imaginary transactions;
2. The false pretenses or fraudulent representations were made prior to or simultaneous with the commission of the fraud;
3. The false pretenses or fraudulent representations constitute the very cause which induced the offended party to part with his money or property;
4. That as a result thereof, the offended party suffered damage.[81]

On the other hand, in order to sustain conviction for the crime of falsification of a public document under Articles 171 and 172 of the RPC, the following requisites must concur:

1. That the offender is a private individual or a public officer or employee who took advantage of his official position;
2. That he committed any of the acts of falsification enumerated in article 171 of the Revised Penal Code;
3. That the falsification was committed in a public or official or commercial document.[82]

Thus, in Ansaldo v. People[83] where the petitioner was charged with estafa through falsification of public document, the Court held that not all the elements of the crime of falsification of a public document are present and consequently, petitioner can only be found guilty of estafa. While it is undisputed that petitioner committed estafa by falsely representing to the land owner that he (petitioner) and his wife had the influence and capability to cause the subdivision of the lot which induced the land owner to part with the owner’s copy of her title, there is no evidence showing that petitioner had any participation in the execution of the mortgage involving the subject title.

In another case, in Gonzaludo v. People[84], the petitioner was acquitted of the complex crime of estafa through falsification of public document but held guilty of the crime of falsification of public document. In this case, petitioner was convicted by the trial court of the said complex crime for allegedly having conspired with Rosemarie Gelogo, who used the fictitious surname “Villaflor” for the purpose of giving her a semblance of authority to sell the house purportedly owned by her paramour, Ulysses Villaflor, who was legally married to private complainant, Anita Villaflor. In exonerating the petitioner of the crime of estafa as one of the component of the complex crime charged, the Court agreed with the contention of the petitioner that the third element of the said offense is absent – that such false pretenses or fraudulent representations constitute the very cause which induced the offended party to part with his money or property. While it may be said that there was fraud or deceit committed by Rosemarie in this case, when she used the surname “Villaflor” to give her semblance of authority to sell the subject 2-storey house, such fraud or deceit was employed upon the Canlas spouses who were the ones who parted with their money when they bought the house. However, the Information charging Rosemarie of estafa in the present case, alleged damage or injury not upon the Canlas spouses, but upon private complainant, Anita Manlangit. Since the deceit or fraud was not the efficient cause and did not induce Anita Manlangit to part with her property in this case, Rosemarie cannot be held liable for estafa. With all the more reason must this be for the petitioner. Nonetheless, he was convicted of falsification of public document because of his conspiracy with Rosemarie in falsifying the deed of sale as sufficiently established by evidence during the trial.

It bears stressing however, that there is no complex crime of estafa through falsification of private document because of their common element of deceit or damage. If the falsification of a private document is committed as a means to commit estafa, the proper crime to be charged is falsification. If the estafa can be committed without the necessity of falsifying a document, the proper crime to be charged is estafa.[85]

6.3 Good faith defense in falsification

Settled is the rule that there is no crime absent criminal intent. In other words, the unlawful act must be coupled with an evil desire for a crime to exist, save of course in cases of criminal negligence where the negligence itself is the crime. Hence, it is settled in our jurisdiction that since falsification of document is not in itself evil by its nature, absence of any malice or criminal intent on the part of the accused might absolve him of criminal liability. Good faith therefore might be a good defense.

In Lecaroz v. Sandiganbayan[86], the Court acquitted the accused father and son, a Mayor and an outgoing chairman of Kabataang Barangay (KB), respectively, of the charge of estafa through falsification. The Sandiganbayan convicted both the accused of the said charge when the Mayor entered the name of his son in the payroll of the municipality during the period when his son is on a hold-over capacity as a KB representative despite a new one has already been elected, the private complainant. Likewise, the son signed the payroll and authorized another to sign all the payrolls for the succeeding pay periods and claim the corresponding salaries in his behalf. Persuaded that both accused acted in good faith and committed a mere error of judgment without evil intent, the Court held:

“On the issue of criminal liability of petitioners, clearly the offenses of which petitioners were convicted, i.e., estafa through falsification of public documents under Art. 171, par. 4, of The Revised Penal Code, are intentional felonies for which liability attaches only when it is shown that the malefactors acted with criminal intent or malice.  If what is proven is mere judgmental error on the part of the person committing the act, no malice or criminal intent can be rightfully imputed to him. x x x. Ordinarily, evil intent must unite with an unlawful act for a crime to exist. Actus non facit reum, nisi mens sit rea. There can be no crime when the criminal mind is wanting. As a general rule, ignorance or mistake as to particular facts, honest and real, will exempt the doer from felonious responsibility. The exception of course is neglect in the discharge of a duty or indifference to consequences, which is equivalent to a criminal intent, for in this instance, the element of malicious intent is supplied by the element of negligence and imprudence. In the instant case, there are clear manifestations of good faith and lack of criminal intent on the part of petitioners.”

However, in Office of the Ombudsman v. Torres[87], where the respondents who were working college students were charged, among others, by Falsification of Official Document by making false entries in their Daily Time Records (DTR), the Court reversed the decision of the Court of Appeals exonerating the respondents based on good faith and affirmed the decision of the Office of the Ombudsman finding the respondents administratively guilty of the said charge.

The Court of Appeals in its decision, held that the false entries the respondents made in their DTRs have been made with no malice or intent as to constitute falsification, as entries in the DTR is only a matter of administrative procedural convenience or as a matter of practice but not for reason of strict legal obligation. Furthermore, they have not caused any damage to the government or third person because under the facts obtaining, respondents may be said to have rendered service in the interest of the public, with proper permission from their superior. The integrity of the daily time record as an official document remains untarnished if the damage sought to be prevented has not been produced.

The Supreme Court on the other hand is not persuaded. In striking the respondents’ claim of good faith, the Court held that falsification of DTRs amounts to dishonesty. The evident purpose of requiring government employees to keep a time record is to show their attendance in office to work and to be paid accordingly. Closely adhering to the policy of no work-no pay, a DTR is primarily, if not solely, intended to prevent damage or loss to the government as would result in instances where it pays an employee for no work done. Explaining “good faith”, the Court stated:

Good faith, here understood, is an intangible and abstract quality with no technical meaning or statutory definition, and it encompasses, among other things, an honest belief, the absence of malice and the absence of design to defraud or to seek an unconscionable advantage. An individual’s personal good faith is a concept of his own mind and, therefore, may not conclusively be determined by his protestations alone. It implies honesty of intention, and freedom from knowledge of circumstances which ought to put the holder upon inquiry. The essence of good faith lies in an honest belief in the validity of one’s right, ignorance of a superior claim, and absence of intention to overreach another.

(Emphasis in the original)

The Court further said that the Court of Appeals gravely erred when it exonerated respondents from administrative guilt. The Lecaroz case adopted by the appellate court in laying the legal basis for its ruling does not apply to the instant case because said cases pertain to criminal liability for Falsification of Public Document under the Revised Penal Code. The element of damage need not be proved to hold respondents administratively liable.

With respect to disputes involving conveyance of real property, the case of Spouses Villamar v. People[88] is one example where the defense of good faith was invoked by the spouses accused, the alleged forgers of the Deed of Sale in question. In this case, a parcel of land was sold by Elena Manantan to her nine children. Six of them later sold their respective shares to one of their brother Simplicio who eventually sold his total share to his daughter, the one of the spouses herein accused. The spouses registered with the Office of the Provincial Assessor of Lingayen, Pangasinan a signed and notarized Deed of Sale. However, it was made to appear in the said deed that all of Elenita’s children sold the property. While the spouses admit that not all of Elenita’s children were vendors in the said document, they insist that they could not be held guilty of falsification but rather the Office of the Provincial Assessor who prepared the document without their knowledge. The trial courts and the Court of Appeals convicted the accused of falsification of public document and disregarded the defense of good faith. It was held that while the fact of forgery came to the knowledge of the accused and it was not disputed, their inaction to inform the private complainant about the inclusion of her name in the said deed negates their claim of innocence. It is well-settled that the person who stood to benefit by the forged document or was in possession of it or makes use of the same is presumed to be the material author of the falsification.[89] Since the Deed of Sale was executed in their favor, clearly, they are the ones who benefited from the falsified document.

It should be noted however, that the Supreme Court affirmed their conviction merely because petition for review on certiorari under Rule 45 of the Rules of Court covers only questions of law. Questions of fact are not reviewable and factual findings of the lower courts are binding on the Court. According to the Court, “whether the spouses accused are innocent of the existence of the falsified document” is a question of fact which is not reviewable. Furthermore, they failed to show that their case falls within the recognized exceptions to the rule.

Similarly, the “good faith” defense was not appreciated in the case of Del Prado v. People[90] which involves a Deed of Succession, the alleged falsified document. By virtue of the said document, an Original Certificate of Title was cancelled and several titles were issued in lieu thereof in favor of the several heirs. However, the heirs who executed and signed the document inserted a clause which states: “…the parties hereto are the only heirs of the decedent…” which in effect, excluded one co-heir, the private complainant. The accused heirs insist that they were innocent of and did not really intend the exclusion of the complainant heir. They also anchored their defense on the several documents they previously executed recognizing the complainant’s heirship. However, the Court rejected the absence of malice on the part of the several accused in this wise:

“There can be no good faith on the part of the petitioners since they knew of the untruthful character of statements contained in their deed of succession.

x x x

The obligation of the petitioners to speak only the truth in their deed of succession is clear, taking into account the very nature of the document falsified. The deed, which was transformed into a public document upon acknowledgement before a notary public, required only truthful statements from the petitioners. It was a legal requirement to effect the cancellation of the original certificate of title and the issuance of new titles by the Register of Deeds. The false statement made in the deed greatly affected the indefeasibility normally accorded to titles over properties brought under the coverage of land registration, to the injury of Corazon who was deprived of her right as a landowner, and the clear prejudice of third persons who would rely on the land titles issued on the basis of the deed.

We cannot subscribe to the petitioners’ claim of good faith because several documents prove that they knew of the untruthful character of their statement in the deed of succession. The petitioners’ alleged good faith is disputed by their prior confirmation and recognition of Corazon’s right as an heir, because despite knowledge of said fact, they included in the deed a statement to the contrary. The wrongful intent to injure Corazon is clear from their execution of the deed, showing a desire to appropriate only unto themselves the subject parcel of land. Corazon was unduly deprived of what was due her not only under the provisions of the law on succession, but also under contracts that she had previously executed with the petitioners.”

(Emphasis supplied)

Likewise, the Court rejected the claim of “good faith” by the petitioner in Lastrilla v. Granda[91]. Petitioner contends that assuming he knew or had a hand in the falsification of the three (3) deeds of absolute sale and used the same to process the issuance of the new TCTs, said act is not a punishable act of falsification as the same was authorized by the heirs of Aurora (the land owner) including respondent. The Court held that such contention was belatedly raised on appeal and as logically pointed out by respondent, he is an heir of Aurora and definitely, he did not authorize petitioner to falsify the subject deeds and use the same to effect the transfer of the TCTs. Furthermore, the finding that there is probable cause to believe that the signatures of both Aurora and Rafael were falsified and the dates of the instruments were antedated lay serious doubt on the claim that the conveyance was indeed authorized by Aurora herself. To further sow doubt on the claim of authority, respondent’s claim that in 1999, his grandmother Aurora was already “too sickly and frail to execute said documents,” finds support in the evidence on record. A househelp in the residence of Aurora attested that in 1999, she was one of those who took care of Aurora who was then very sickly, could hardly recognize faces, remember names and events and very rarely talked and whose condition worsened starting January 1999. Also bolstering respondent’s claim is the noticeable fact that Aurora signed the GPOA dated February 14, 1999 in favor of Silvina by affixing her thumbmark instead of her customary signature.

Proving forgery

Section 1, Rule 131 of the Rules of Court provides that the burden of proof is the duty of a party to prove the truth of his claim or defense, or any fact in issue by the amount of evidence required by law.[92] As a rule, forgery cannot be presumed and must be proved by clear, positive and convincing evidence and the burden of proof lies on the party alleging forgery. The best evidence of a forged signature in the instrument is the instrument itself reflecting the alleged forged signature. The fact of forgery can only be established by comparison between the alleged forged signature and the authentic and genuine signature of the person whose signature is theorized upon to have been forged.[93]

In proving the genuineness of a handwriting, Section 22, Rule 132 of the Rules of Court provides:

Section 22. How genuineness of handwriting proved. – The handwriting of a person may be proved by any witness who believes it to be the handwriting of such person because he has seen the person write, or has seen writing purporting to be his upon which the witness has acted or been charged, or has thus acquired knowledge of the handwriting of such person. Evidence respecting the handwriting may also be given by a comparison, made by the witness or the court, with writings admitted or treated as genuine by the party against whom the evidence is offered, or proved to be genuine to the satisfaction of the judge.

In Jimenez v. Commission on Ecumenical Mission, United Presbyterian Church, USA, the Court identified and explained the factors involved in the examination and comparison of handwritings:

x x x [T]he authenticity of a questioned signature cannot be determined solely upon its general characteristics, similarities or dissimilarities with the genuine signature. Dissimilarities as regards spontaneity, rhythm, pressure of the pen, loops in the strokes, signs of stops, shades, etc., that may be found between the questioned signature and the genuine one are not decisive on the question of the former’s authenticity. The result of examinations of questioned handwriting, even with the benefit of aid of experts and scientific instruments, is, at best, inconclusive. There are other factors that must be taken into consideration. The position of the writer, the condition of the surface on which the paper where the questioned signature is written is placed, his state of mind, feelings and nerves, and the kind of pen and/or paper used, play an important role on the general appearance of the signature. Unless, therefore, there is, in a given case, absolute absence, or manifest dearth, of direct or circumstantial competent evidence on the character of a questioned handwriting, much weight should not be given to characteristic similarities, or dissimilarities, between that questioned handwriting and an authentic one.[94]

In Bucton v. Go[95], despite the testimony of an expert witness from the National Bureau of Investigation who testified that there are significant differences between the signatures on the standard documents from the one found in the SPA, this testimony, however, was disregarded both by the RTC and the Court of Appeals which upheld the validity of the same on the ground that it enjoys the presumption of regularity of a public document. The Court however, is not convinced and held that while it is true that a notarized document carries the evidentiary weight conferred upon it with respect to its due execution, and has in its favor the presumption of regularity, this presumption, however, is not absolute. It may be rebutted by clear and convincing evidence to the contrary. The testimony of the expert witness and the petitioner, had it been properly appreciated, is sufficient to overcome the presumption of regularity attached to public documents and to meet the stringent requirements to prove forgery. In reversing the decision of the Court of Appeals, the Court said:

“In upholding the validity of the SPA, the Court of Appeals brushed aside the foregoing testimonial evidence of the expert witness and made an independent examination of the questioned signatures, and based thereon, ruled that there is no forgery. The appellate court attributed the variations to the passage of time and the person’s increase in age and dismissed the findings of the expert witness because it failed to comply with the rules set forth in jurisprudence that the standard should embrace the time of origin of the document, so that one part comes from the time before the origin and one part from the time after the origin. We are not unmindful of the principle that in order to bring about an accurate comparison and analysis, the standard of comparison must be as close as possible in point of time to the suspected signature. However, when the dissimilarity between the genuine and false specimens of writing is visible to the naked eye and would not ordinarily escape notice or detection from an unpracticed observer, resort to technical rules is no longer necessary and the instrument may be stricken off for being spurious. More so when, as in this case, the forgery was testified to and thus established by evidence other than the writing itself. When so established and is conspicuously evident from its appearance, the opinion of handwriting experts on the forged document is no longer necessary.”

It is also worth stressing that a mere denial of a person whose signature was allegedly forged that he signed the questioned deed of sale will not suffice to overcome the positive value of the subject deed, a notarized document. Mere comparison of the alleged forged signature from the presented samples of genuine signatures to show its variance therefrom cannot be considered as sufficient evidence of forgery. A claim of forgery cannot also be accepted absent comparison of signatures and witness (save for the claimant himself) to testify on the same. Otherwise, the public document must be upheld.[96]

The issue of the genuineness of a signature in a deed is a question of fact

The issue of the genuineness of a deed of sale is essentially a question of fact. It is settled that the Supreme Court is not duty-bound to analyze and weigh again the evidence considered in the proceedings in the lower court. This is especially true where the trial court’s factual findings are adopted and affirmed by the Court of Appeals. Factual findings of the trial court, affirmed by the CA, are final and conclusive and may not be reviewed on appeal. Conclusions and findings of fact of the trial court are entitled to great weight and should not be disturbed on appeal, unless strong and cogent reasons dictate otherwise. This is because the trial court is in a better position to examine the real evidence, as well as to observe the demeanor of the witnesses while testifying in the case. [97]

Thus, in Gepulle-Garbo v. Garabato[98], when the Court was presented with the question of whether the signatures appearing on the deed of sale were forged, it held:

“The issue raised by petitioner is essentially factual in nature, the determination of which is best left to the courts below. Well settled is the rule that the Supreme Court is not a trier of facts. The function of the Court in petitions for review on certiorari is limited to reviewing errors of law that may have been committed by the lower courts. As a matter of sound practice and procedure, the Court defers and accords finality to the factual findings of trial courts, more so, when as here, such findings are undisturbed by the appellate court. Stated otherwise, the Court refrains from further scrutiny of factual findings of trial courts, more so when those findings are affirmed by the CA. To do otherwise would defeat the very essence of Rule 45 and would convert the Court into a trier of facts, which is not meant to be. Certainly the rule admits exceptions. None, however, is applicable to the case at bar. Absent any application of any of the recognized exceptions, this Court is bound by the findings of fact by the lower courts.”

Opinion of the handwriting experts, not binding upon the courts

In the Gepulle-Garbo case, the Court also ruled that courts are not bound by expert testimonies especially that the examination was upon the initiative of the party who had complete control on what documents and specimens to be examined by the National Bureau of Investigation. Such person had the onus of showing that the signatures were forged. The Court said in this wise:

“The opinion of handwriting experts is not necessarily binding upon the court, the expert’s function being to place before the court data upon which the court can form its own opinion. This principle holds true especially when the question involved is mere handwriting similarity or dissimilarity, which can be determined by a visual comparison of specimens of the questioned signatures with those of the currently existing ones. A finding of forgery does not depend entirely on the testimonies of handwriting experts, because the judge must conduct an independent examination of the questioned signature in order to arrive at a reasonable conclusion as to its authenticity.”

Certificate of title vs. unregistered deed of sale

It is a fundamental principle in land registration that the certificate of title serves as evidence of an indefeasible and incontrovertible title to the property in favor of the person whose name appears therein. It is conclusive evidence with respect to the ownership of the land described therein. Moreover, the age-old rule is that the person who has a Torrens title over a land is entitled to possession thereof.[99] Thus, even assuming that the deed of sale is genuine and valid, as against the registered owners and the holder of such but unregistered deed of sale, it is the former who has a better right to possess.[100]

 

Legal standing of informal settlers

It is settled that absence of title over the disputed property will not divest the courts of jurisdiction to resolve the issue of possession and it is not a ground for the courts to withhold relief from the parties in an ejectment case.[101]

Possession in ejectment cases means nothing more than actual physical possession, not legal possession in the sense contemplated in civil law. In a forcible entry case, prior physical possession is the primary consideration. A party who can prove prior possession can recover such possession even against the owner himself. Whatever may be the character of his possession, if he has in his favor prior possession in time, he has the security that entitles him to remain on the property until a person with a better right lawfully ejects him. The party in peaceable, quiet possession shall not be thrown out by a strong hand, violence, or terror.[102]

In Pajuyo v. Court of Appeals[103] where the sole issue is possession, the Court brushed aside the ruling of the Court of Appeals that both parties are in pari delicto or in equal fault being both squatting on the property hence should be left where they are. The Court held that the principle of pari delicto was erroneously applied. The application of this principle is not absolute, as there are exceptions one of which is where its application would violate well-established public policy. Courts must resolve the issue of possession even if the parties to the ejectment suit are squatters. The determination of priority and superiority of possession is a serious and urgent matter that cannot be left to the squatters to decide. To do so would make squatters receive better treatment under the law. The law restrains property owners from taking the law into their own hands. However, the principle of pari delicto as applied by the Court of Appeals would give squatters free rein to dispossess fellow squatters or violently retake possession of properties usurped from them. Courts should not leave squatters to their own devices in cases involving recovery of possession.

In Pitargue v. Sorilla[104], both the plaintiff and the defendant were in effect squatting on government property. Yet, the court upheld its jurisdiction to resolve the issue of possession even if the plaintiff and the defendant in the ejectment case did not have any title over the contested land.

Proposed amendment of Articles 171 and 172 of the Revised Penal Code

As of this writing, pending in the Senate is the Senate Bill No. 2251 introduced on May 28, 2014 by Senator Joseph Ejercito which seeks to amend Arts. 171 and 172 of the RPC with respect to falsification involving land titles entitled:

“AN ACT IMPOSING STIFFER PENALTIES FOR FALSIFICATION OF CERTIFICATES OF LAND TITLE OR ANY APPLICATION, DEED, INSTRUMENT OR SUPPORTING DOCUMENT, REASONABLY CONNECTED WITH AND CALCULATED TO CAUSE THE ISSUANCE OF A CERTIFICATE OF LAND TITLE, CLASSIFYING THE SAME AS A HEINOUS OFFENSE INVOLVING ECONOMIC SABOTAGE IF THE VALUE OR AGGREGATE VALUE OF THE LAND IS AT LEAST TEN MILLION PESOS (P10,000,000.00), AMENDING FOR THE PURPOSE ARTICLES 171 AND 172 OF ACT NO. 3815, AS AMENDED, OTHERWISE KNOWN AS THE REVISED PENAL CODE AND FOR OTHER PURPOSES.”

The proposed legislation was prompted by the increasing incidence of fake titles or issuance of valid titles but as a result of fraudulent transactions which destroy the integrity of the Torrens system. According to the Senator, our present law on land registration which is the Presidential Decree No. 1529 or the Property Registration Decree lacks teeth to accomplish its goals and objectives as it failed to provide penal sanctions in case of violation thereof. Currently, a person responsible for the issuance of a fake or falsified title may only be held criminally liable for perjury under Article 183 of the Revised Penal Code, and/or Falsification of Public Documents under either Article 171 or Article 172 of the same Code. The penalty for perjury is a mere arresto mayor in its maximum period to prision correccional in its minimum period. On the other hand, the maximum penalty imposable for falsification is a mere prision mayor and a fine not to exceed P 5,000.00.[105]

Endnotes

[1] Sir Robert Richard Torrens, Encyclopaedia Britannica, available at

http://www.britannica.com/biography/Robert-Richard-Torrens (last accessed: August 6, 2015)

[2] Justice Oswaldo Agcaoili, Property Registration Decree and Related Laws 8 (2011 edition)

[3] Id. at 9 and 10, citing Legarda v. Saleeby, G.R. No. 8936, October 2, 1915 and SM Prime Holdings, Inc. v. Madayag, G.R. No. 164687, February 12, 2009

[4] Id. at 8

[5] Id. at 9

[6] Id. at 10, citing Rodriguez v. Lim, G.R. No. 135817, November 30, 2006; Manlapat v. Court of Appeals, G.R. No. 125585, June 8, 2005; Baguio v. Republic, G.R. No. 119682, January 21, 1999; Pascua v. Court of Appeals, G.R. No. 140243, December 14, 2000; Fudot v. Cattleya Land, Inc., G.R. No. 171008, September 13, 2007

[7] Id. at 482

[8] Ibid. citing Bernales v. Sambaan, G.R. No. 163271, January 16, 2010

[9] Bernales, supra

[10] Ibid.

[11] Yu v. Pacleb, G.R. No. 172172, February 24, 2009

[12] Peralta v. Heirs of Abalon, G.R. No. 183448, June 30, 2014

[13] Bernales, supra

[14] Agcaoili, supra, at 482

[15] Peralta, supra

[16] G.R. No. 107967, March 1, 1994

[17] G.R. No. L-17951, February 28, 1963

[18] Peralta, supra, citing Torres v. Court of Appeals, 264 Phil. 1062 (1990)

[19] Peralta, supra

[20] Veloso v. Court of Appeals, G.R. No. 102737, August 21, 1996

[21] Agcaoili, supra, at 553

[22] Heirs of Victorino Sarili v. Lagrosa, G.R. No. 193517, January 15, 2014

[23] Heirs of the late Felix Bucton v. Go, G.R. No. 188395, November 20, 2013

[24] G.R. No. 51450, February 10, 1989

[25] Agcaoili, supra, at 489

[26] G.R. No. L-41377, July 26, 1935

[27] G.R. No. L-6122, May 31, 1954

[28] Agcaoili, supra, at 317 and 483, citing Crisostomo v. Court of Appeals, G.R. No. 91383, May 31, 1991 and Unchuan v. Court of Appeals, G.R. No. 78775, May 31, 1988

[29] Spouses Vilbar v. Opinion, G.R. No. 176043, January 15, 2014, citing Cavite Development Bank v. Spouses Lim, 381 Phil. 355 (2000)

[30] Development Bank of the Philippines v. Court of Appeals and Cajes, G.R. No. 129471, April 28, 2000

[31] St. Dominic Corporation v. Intermediate Apellate Court, G.R. No. 70623, June 30, 1987

[32] See Cruz v. Bancom Finance Corporation, G.R. No. 147788, March 19, 2002

[33] G.R. No. 150730, January 31, 2005

[34] Bank of Commerce v. Spouses San Pablo, G.R. No. 167848, April 27, 2007

[35] Ereña v. Qerrer-Kauffman, G.R. No. 165853, June 22, 2006

[36] Spouses Bautista v. Spouses Jalandoni and Manila Credit Corporation, G.R. No. 171464, November 27, 2013

[37] Philippine Trust Company v. Court of Appeals, G.R. No. 150318, November 22, 2010

[38] Arguelles v. Malarayat Rural Bank, Inc., G.R. No. 200468, March 19, 2014

[39] Ibid.

[40] Gatioan v. Gaffud, G.R. No. L-21953, March 28, 1969

[41] G.R. No. 122801, April 8, 1997

[42] Cruz v. Bancom Finance Corporation, G.R. No. 147788, March 19, 2002

[43] Agcaoili, supra, at 474, citing Sunshine Finance and Investment Corporation v. Intermediate Appellate Court, G.R. Nos. 74070-71, October 28, 1991 and Eagle Realty Corporation v. Republic, G.R. No. 151424, July 31, 2009

[44] Spouses Sabitsana v. Muertegui, G.R. No. 181359, August 5, 2013

[45] Fudot v. Cattleya Land, Inc., G.R. No. 171008, September 13, 2007, citing Justice Jose Vitug, Compendium of Civil Law and Jurisprudence 604 (1993)

[46] Fudot, supra

[47] G.R. No. L-59514, February 25, 1988

[48] G.R. No. L-18018, December 26, 1963

[49] Wee v. Mardo, G.R. No. 202414, June 4, 2014

[50] 371 Phil. 238 (1999)

[51] 345 Phil. 592 (1997)

[52] Wee, supra

[53] Section 32, P.D. 1529

[54] Armamento v. Guerrero, G.R. No. L-34228, February 21, 1980

[55] Heirs of Valentin Basbas, et. al. v. Basbas, G.R. No. 188773, September 10, 2014

[56] Chu v. Caparas, G.R. No. 175428, April 15, 2013

[57] Francisco v. Rojas, et. al. G.R. No. 167120, April 23, 2014

[58] G.R. No. 168800, April 16, 2009

[59] Heirs of Maximo Sanjorjo v. Heirs of Manuel Quijano, G.R. No. 140457, January 19, 2005

[60] Article 1410, Civil Code

[61] See Daclag v. Macahilig, G.R. No. 159578, February 18, 2009; Lacsamana v. Court of Appeals, G.R. No. 121658, March 27, 1998; Bernales, supra

[62] Heirs of Julian Tiro v. Philippine Estates Corporation, G.R. No. 170528, August 26, 2008

[63] Duran v. Intermediate Appellate Court, G.R. No. L-64159, September 10, 1985

[64] Agcaoili, supra, at 353, citing Castillo v. Madrigal, G.R. No. 62650, June 27, 1991

[65] Iglesia Ni Cristo v. CFI of Nueva Ecija, G.R. No. L-35273, July 25, 1983

[66] See Torres v. Court of Appeals, G.R. No. L-63046, June 21, 1990

[67] Iglesia Ni Cristo, supra

[68] Garcia v. Court of Appeals, G.R. No. L-48971, January 22, 1980

[69] Oňo v. Lim, G.R. No. 154270, March 9, 2010

[70] Gatioan, supra

[71] Agcaoili, supra, at 364

[72] Heirs of Roxas v. Garcia, G.R. No. 146208, August 12, 2004

[73] Eagle Realty Corporation v. Republic, G.R. No. 151424, July 4, 2008

[74] Reyes v. Solemar Development Corporation, G.R. No. 129247, March 3, 2006

[75] Section 102, P.D. 1529

[76] 47 Phil. 48 (1924)

[77] G.R. No. 141931, December 4, 2000

[78] Tanenggee v. People, G.R. No. 179448, June 26, 2013

[79] Ibid. citing Domingo v. People, G.R. No. 186101, October 12, 2009

[80] G.R. No. 188726, January 25, 2012

[81] Gonzaludo v. People, G.R. No. 150910, February 6, 2006

[82] Luis B. Reyes, The Revised Penal Code Book II, 232 (17^th ed., 2008)

[83] G.R. No. 159381, March 26, 2010

[84] Gonzaludo, supra

[85] Batulanon v. People, G.R. No. 139857, September 15, 2006, (Italics in the original)

[86] G.R. No. 130872, March 25, 1999

[87] G.R. No. 168309, January 29, 2008

[88] G.R. No. 178652, December 8, 2010

[89] Nierva v. People, 503 SCRA 114

[90] G.R. No. 186030, March 21, 2012

[91] G.R. No. 160257, January 31, 2006

[92] Vitarich Corporation v. Locsin, G.R. No. 181560, November 15, 2010

[93] Bucton, supra

[94] Gepulle-Garbo v. Garabato, G.R. No. 200013, January 14, 2015

[95] Bucton, supra

[96] Ladignon v. Court of Appeals, G.R. No. 122973, July 18, 2000

[97] Villaceran v. De Guzman, G.R. No. 169055, February 22, 2012

[98] Gepulle-Garbo, supra

[99] Catindig v. De Meneses, G.R. No. 165851, February 2, 2011

[100] Ibid. citing Pascual v. Coronel, G.R. No. 159292, July 12, 2007

[101] Pajuyo v. Court of Appeals, G.R. No. 146364, June 3, 2004

[102] Rivera-Calingasan v. Rivera, G.R. No. 171555, April 17, 2013

[103] Pajuyo, supra

[104] 92 Phil. 5 (1952)

[105] 16^th Congress Senate Bill No. 2251, Senate Of The Philippines, available at

http://www.senate.gov.ph/lis/bill_res.aspx?congress=16&q=SBN-2251 (last accessed: August 8, 2015)

Significance of “chain of custody” in prosecution for violation of R.A. 9165

This article presents the importance of handling of evidence (also called as the chain of custody) in illegal drug cases which is the illegal drug itself and its impact on the fate of the prosecution’s success. The article gives an overview of the concept of chain of custody, how the Supreme Court decided various cases involving lapses in this procedure as required by law and the author’s corresponding analysis and conclusion thereto.

The drug is the crime itself

In a prosecution for violation of the Dangerous Drugs Act (Republic Act No. 9165), the existence of the dangerous drug is a condition sine qua non for conviction. The dangerous drug is itself the very corpus delicti of the violation of the law. (People v. Guzon, G.R. No. 199901, October 9, 2013; People v. de Guzman, G.R. No. 186498, March 26, 2010) In both cases of illegal sale and illegal possession of dangerous drugs, the chain of custody over the dangerous drug must be shown to establish the corpus delicti. (People v. Perez, G.R. No. 199403, June 13, 2012) Hence, absent the seized illegal drug (or at least absent proper identification of the same during the trial), there is no crime to speak of.

Chain of custody defined

Nowhere in R.A. No. 9165 where the term “chain of custody” is defined. However, Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 2002 which implements the said law provides the meaning of chain of custody, to wit:

“Chain of Custody” means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition;

The importance of establishing the chain of custody over the seized drug is explained in the case of People v. Beran (G.R. No. 203028, January 15, 2014):

“The purpose of the requirement of proof of the chain of custody is to ensure that the integrity and evidentiary value of the seized drug are preserved, as thus dispel unnecessary doubts as to the identity of the evidence. To be admissible, the prosecution must establish by records or testimony the continuous whereabouts of the exhibit, from the time it came into the possession of the police officers, until it was tested in the laboratory to determine its composition, and all the way to the time it was offered in evidence.”

Every link in the chain of custody must not show any possibility of tampering, alteration or substitution. However, it is accepted that a perfect chain is not the standard. Nonetheless, two crucial links must be complied with. First, the seized illegal drug must be marked in the presence of the accused and immediately upon confiscation. This marking must be supported by details on how, when, and where the marking was done, as well as the witnesses to the marking. Second, the turnover of the seized drugs at every stage – from confiscation from the accused, transportation to the police station, conveyance to the chemistry lab, and presentation to the court must be shown and substantiated. (People v. Abdul, infra)

In case of a buy-bust operation, the Court in People v. Salvador (G.R. No. 190621, February 10, 2014) laid down the links that must be established in the chain of custody, to wit: “first, the seizure and marking, if practicable, of the illegal drug recovered from the accused by the apprehending officer; second, the turnover of the illegal drug seized by the apprehending officer to the investigating officer; third, the turnover by the investigating officer of the illegal drug to the forensic chemist for laboratory examination; and, fourth, the turnover and submission of the marked illegal drug seized from the forensic chemist to the court.”

Thus, failure to establish through convincing proof, that the integrity of the seized items has been adequately preserved through an unbroken chain of custody is enough to engender reasonable doubt on the guilt of an accused. (de Guzman, supra) Simply stated, a broken link in this chain warrants the acquittal of the accused no matter how guilty he appears to be.

Exception to the rule

Section 21(a) of the Implementing Rules and Regulations (IRR) of R.A. No. 9165 provides that non-compliance with the procedure shall not render void and invalid the seizure of and custody of the drugs only when: (1) such non-compliance was under justifiable grounds; and (2) the integrity and the evidentiary value of the seized items are properly preserved by the apprehending team. There must be proof that these two (2) requirements were met before any such non-compliance may be said to fall within the scope of the proviso.

Failure to prove entitlement to the application of the proviso, the arresting officers’ non-compliance with the procedure laid down by R.A No. 9156 effectively invalidates their seizure of and custody over the seized drugs. (People v. Dela Cruz, G.R. No. 177222, October 29, 2008)

Duty of the arresting officers

Section 21(1) of R.A. No. 9165 provides the procedure to be followed by the arresting officers for the seizure and custody of the illegal drugs, to wit:

Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. – The PDEA shall take charge and have custody of all dangerous drugs, plant sources of dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and/or surrendered, for proper disposition in the following manner:

(1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof;

The above provision is implemented by Section 21(a), Article II, of the IRR of R.A. No. 9165 which states:

(a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures ; Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items;

It is important that the seized illegal drug be immediately marked since marking is the start of the custodial link. Such marking will be used as a reference of the succeeding handlers of the seized contraband. It will also serve to separate the marked evidence from the corpus of all other similar or related evidence from the time they are seized from the accused until they are disposed of at the end of the criminal proceedings, thus preventing switching, “planting,” or contamination of evidence. (People v. Sabdula, G.R. No. 184758, April 21, 2014)

“Marking” means the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the items seized. (Ibid.)

Neither R.A. No. 9165 nor its implementing rules provide the rule on marking in cases of warrantless seizure. However, the Court in People v. Sanchez (G.R. No. 175832, October 15, 2008) held that consistent with the chain of custody rule, the marking of the illegal drugs seized without warrant must be done immediately upon confiscation and in the presence of the accused to ensure that they are the same items that enter the chain and are eventually the ones offered in evidence.

It should be noted also that while the first sentence of the above-cited provision of the IRR of R.A. No. 9165 provides that the apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same, the second sentence makes a distinction in physical inventory and photograph of evidence between warrantless seizures and seizures by virtue of a warrant.

Thus, in seizures covered by search warrants, the physical inventory and photograph must be conducted in the place where the search warrant was served. On the other hand, in case of warrantless seizures such as a buy-bust operation, the physical inventory and photograph shall be conducted at the nearest police station or office of the apprehending officer/team, whichever is practicable; however, nothing prevents the apprehending officer/team from immediately conducting the physical inventory and photography of the items at the place where they were seized, as it is more in keeping with the law’s intent of preserving their integrity and evidentiary value. (Beran, supra)

Strict application

It was held in a long line of cases that the Court should acquit the accused on reasonable doubt in a drug case if there are any irregularities attending the chain of custody over the seized illegal drugs. This is in harmony with the rule in criminal law that penal laws are strictly construed against the government and liberally in favor of the accused.

In People v. Sabdula (Sabdula, supra), the Court acquitted the accused for lack of conclusive identification of the illegal drugs allegedly seized due to failure of the police to mark, inventory and photograph the same. It held that the failure of the prosecution to establish the chain of custody caused by the procedural lapses committed by the apprehending team makes it uncertain whether the illegal drugs seized from the accused was the same illegal drugs that were brought to the crime laboratory for chemical analysis, and eventually offered in Court as evidence. Thus, there is a reasonable doubt as to the guilt of the accused, as well as to the authenticity of the corpus delicti – the body of the crime.

It also held that while the testimony of the police officers who apprehended the accused is usually accorded full faith and credit because of the presumption that they have performed their duties regularly, such presumption is effectively destroyed by the procedural lapses tainted with irregularities. Also, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent and it cannot by itself constitute proof of guilt beyond reasonable doubt. (Ibid.)

Likewise, in the case of People v. Beran (Beran, supra), the accused was acquitted in view of the absence of inventory and photograph of the seized evidence and the fact that the very identity of the subject drug cannot be established with certainty by the testimony alone of the arresting officer. The rule requires an independent proof of subject drug’s identity such as the immediate marking thereof upon its seizure. The self-serving admission of the police officer that he marked the sachet only at the precinct, but without anyone present, the charge that the subject drug may have been tampered with or substituted is inevitable.

Also in the case of People v. Guzon (Guzon, supra), the accused upon appeal raised the issue, among others, that the asset who acted as the poseur-buyer was not identified and was never presented to the witness stand. The Court held that the absence of the poseur-buyer as a witness is fatal to the prosecution’s case since he is the only person who personally witnessed the transaction during the buy-bust operation. Hence, the accused was acquitted based on reasonable doubt.

In the absence of neither the poseur-buyer’s nor of any eyewitness’ testimony on the transaction, the prosecution’s case fails. While the Court, in several instances, has affirmed an accused’s conviction notwithstanding the non-presentation of the poseur-buyer in the buy-bust operation, such failure is excusable only when the poseur-buyer’s testimony is merely corroborative, there being some other eyewitness who is competent to testify on the sale transaction. (Ibid.)

The case of People v. Salvador (Salvador, supra) however, is different in a sense that the Supreme Court affirmed the conviction of the accused. In his argument for acquittal, the accused-appellant alleges the failure of the buy-bust team to immediately photograph and conduct a physical inventory of the seized items in his presence. The Court in striking down the accused’s contention that the marking of the seized sachets of shabu should have been made in his presence while at the scene of the crime instead of in the police station, held that pursuant to IRR of R.A. 9165, in a buy-bust situation, the marking of the dangerous drug may be done in the presence of the violator in the nearest police station or the nearest office of the apprehending team. This must be distinguished from a search and seizure by virtue of a warrant in which case physical inventory and marking is made at the place where the search warrant is served.

The Court also said that the failure of the prosecution to show that the police officers conducted the required physical inventory and photographed the objects confiscated does not ipso facto result in the unlawful arrest of the accused or render inadmissible in evidence the items seized. This is due to the proviso added in the implementing rules stating that it must still be shown that there exists justifiable grounds and proof that the integrity and evidentiary value of the evidence have not been preserved. What is crucial is that the integrity and evidentiary value of the seized items are preserved for they will be used in the determination of the guilt or innocence of the accused. (Ibid.)

It further provided that the failure of the arresting officer to immediately recall his markings on the specimen and such momentary lapse are not fatal to the prosecution of the case considering the fact that the arresting officer testified only after three years after the arrest of the accused. (Ibid.)

Lastly, the Court is not convinced with the accused’s contention that coordination with the PDEA in a buy-bust operation is an indispensable requirement the absence of which renders the operation fatally flawed. The Court said that while perhaps ideal, it is not an indispensable element of a proper buy-bust operation; it is not invalidated by mere non-coordination with the PDEA. (Ibid.)

Broken chain, when raised for the first time on appeal

In People v. Abdul (G.R. No. 186137, June 26, 2013), accused on his appeal with  the Court of Appeals raised for the first time the question of admissibility of evidence on the ground of a violation of the rule on the chain of custody. The CA rendered a judgment affirming conviction and held, among others, that the accused could not raise on appeal the issue of non-compliance with the chain-of-custody rule if he had failed to do so before the trial court. The Supreme Court however, reversed the decision and acquitted the accused based on reasonable doubt. In resolving this particular issue, the Court said that while points of law, theories, issues, and arguments should be brought to the attention of the trial court as these cannot be raised for the first time on appeal, an exception to this rule arises when there is plain error. An instance of plain error is overlooking, misapprehending, or misapplying facts of weight and substance that, if properly appreciated, would warrant a different conclusion. This case falls under this exception because the CA, in appreciating the facts, erred in affirming the RTC’s ruling that there was compliance with the rule on the chain of custody.

Conclusion

As can be seen from the vast number of illegal drug cases where the accused was acquitted by the Supreme Court due to broken chain of custody, it is evident that the acquittal of the accused based on reasonable doubt is attributed to the procedural lapses committed by the apprehending team. It is ironic therefore that notwithstanding the fierce structure of the substantive law, the culprit could still be freed merely because of the lack of proper training and knowledge of the law enforcers regarding the law they enforce. On the bright side nonetheless, the purpose of the law and jurisprudence on the strict compliance with the procedural requirements is to prevent an innocent be put behind bars by reason of implanting evidence against him or what we call as “frame-up.” Though this defense were already snubbed by the Supreme Court in a number of cases as the accused failed to convince the Court otherwise.

We cannot say which really outweighs the other. Perhaps even a drug kingpin could be set free and continue to ruin the life of our innocent youth on one hand; or an innocent man will be spending the rest of his life in jail on the other hand. Either way, this is still in consonance with the principle of dura lex, sed lex. R.A. 9165 is not perfect, as all laws are. Given these flaws in our criminal justice system, what is ironic is the fact that our careless and negligent law enforcers make the same worse. Our laws which are supposed to be the tool in punishing criminals become the very same tool they used to evade State prosecution.

Effects of Trial In Absentia on the Rights of the Accused

Trial In Absentia

Trial in absentia is a stage in a criminal proceeding where the trial is being held even without the physical presence of the accused. Trial in absentia is allowed in our jurisdiction and is indeed authorized by the Constitution. Section 14 (2), Article III of the 1987 Constitution provides:

“In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy, impartial, and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses and the production of evidence in his behalf. However, after arraignment, trial may proceed notwithstanding the absence of the accused: Provided, that he has been duly notified and his failure to appear is unjustifiable.” (Emphasis supplied)

Thus, before a trial in absentia may be had, the following requisites must be present:

1. that there has been an arraignment;

2. that the accused has been notified; and

3. that his failure to appear is unjustified.

Impact on the Rights of the Accused

It was held in a long line of cases that an accused who failed to participate in the course of his criminal proceedings for an unjustifiable reason loses his constitutional rights i.e. to present evidence on his own behalf, to confront and cross-examine the witnesses. In addition, the right to confrontation, of cross-examination and presentation of evidence may be waived expressly or impliedly by conduct amounting to a renunciation of such right. (People v. Seneris, No. L-48883, August 6, 1980)

Section 1(c), Rule 115 of the Revised Rules on Criminal Procedure provides:

“(c) To be present and defend in person and by counsel at every stage of the proceedings, from arraignment to promulgation of the judgment. The accused may, however, waive his presence at the trial pursuant to the stipulations set forth in his bail, unless his presence is specifically ordered by the court for purposes of identification. The absence of the accused without justifiable cause at the trial of which he had notice shall be considered a waiver of his right to be present thereat. When an accused under custody escapes, he shall be deemed to have waived his right to be present on all subsequent trial dates until custody over him is regained. Upon motion, the accused may be allowed to defend himself in person when it sufficiently appears to the court that he can properly protect his right without the assistance of counsel.” (Emphasis supplied)

In Estrada v. People (G.R. No. 162371, August 25, 2005), the Supreme Court affirmed the conviction of the accused for the crime of estafa based only on prosecution evidence in view of the unexplained failure of the accused to appear at several trial dates.

In this case, the accused argued, among others, that while her non-appearance in the trials may be deemed to have waived her right to be present during the proceedings, such waiver does not include a waiver of her right to present evidence. Her conviction by the trial court is in effect a denial of her constitutional right to be heard and present evidence in her defense.

In denying the petition for certiorari of the petitioner (accused), the Supreme Court held that by the mere fact that she jumped bail and could no longer be found, petitioner is considered to have waived her right to be present at the trial, and she and her counsel were to be deemed to have received notice. As held in the earlier cases, the Court ruled that once an accused escapes from prison or confinement or jumps bail or flees to a foreign country, he loses his standing in court and unless he surrenders or submits to the jurisdiction of the court he is deemed to have waived any right to seek relief from the court.

Moreover, with the factual findings of the Court of Appeals that petitioner and her counsel were duly served with copies of the assailed RTC orders and decision at the addresses they submitted to the trial court, the petitioner was indeed afforded a fair and reasonable opportunity to be heard. They cannot now complain of alleged violation of petitioner’s right to due process when it was by their own fault that they lost the opportunity to present evidence.

In People v. Tabag (G.R. No. 116511, February 12, 1997) the Court ruled that the trial court erred for failing to proceed with the trial of some accused who escaped from preventive detention. Pursuant to the last sentence of paragraph (2), Section 14, Article III of the Constitution, trial against them should continue and upon its termination, judgment should be rendered against them notwithstanding their absence unless, of course, both accused have died and the fact of such death is sufficiently established. The trial court had the duty to rule on the evidence presented by the prosecution against all the accused and to render its judgment accordingly.  It should not wait for the fugitives’ re-appearance or re-arrest.  They were deemed to have waived their right to present evidence on their own behalf and to confront and cross-examine the witnesses who testified against them.

In Gimenez v. Nazareno (G.R. No. L-37933, April 15, 1988), the Court holds that an escapee who has been duly tried in absentia waives his right to present evidence on his own behalf and to confront and cross-examine witnesses who testified against him. By his failure to appear during the trial of which he had notice, he virtually waived these rights. The right of the accused to confrontation and cross-examination of witnesses is a personal right and may be waived. In the same vein, his right to present evidence on his behalf, a right given to him for his own benefit and protection, may be waived by him.

Express Waiver of Rights, Limitation

In the case of Carredo v. People (G.R. No. 77542 March 19, 1990), the issue involved is whether or not an accused who, after arraignment, waives his further appearance during the trial can be ordered arrested by the court for non-appearance upon summons to appear for purposes of identification.

The Court ruled that the provision of the Constitution authorizing the trial in absentia of the accused in case of his non-appearance after arraignment despite due notice simply means that he thereby waives his right to meet the witnesses face to face among others. An express waiver of appearance after arraignment, as in this case, is of the same effect. However, such waiver of appearance and trial in absentia does not mean that the prosecution is thereby deprived of its right to require the presence of the accused for purposes of identification by its witnesses which are vital for the conviction of the accused. Such waiver of a right of the accused does not mean a release of the accused from his obligation under the bond to appear in court whenever so required. The accused may waive his right but not his duty or obligation to the court. (Emphasis supplied)

Thus, while the Court permits the accused to waive his presence at all stages of the proceeding after arraignment, it can still order the appearance of the accused where identification of his person by the prosecution witnesses is necessary.

Judgment In Absentia

Promulgation of judgment in absentia is allowed under the Rules. The fourth and last paragraph of Section 6 of the Revised Rules on Criminal Procedure provides:

“In case the accused fails to appear at the scheduled date of promulgation of judgment despite notice, the promulgation shall be made by recording the judgment in the criminal docket and serving him a copy thereof at his last known address or thru his counsel.

 

If the judgment is for conviction and the failure of the accused to appear was without justifiable cause, he shall lose the remedies available in these rules against the judgment and the court shall order his arrest. Within fifteen (15) days from promulgation of judgment, however, the accused may surrender and file a motion for leave of court to avail of these remedies. He shall state the reasons for his absence at the scheduled promulgation and if he proves that his absence was for a justifiable cause, he shall be allowed to avail of said remedies within fifteen (15) days from notice.”

In Pascua v. Court of Appeals (G.R. No. 140243, December 14, 2000) it was held that such promulgation is valid provided the following essential elements are present: (a) that the judgment be recorded in the criminal docket; and (b) that a copy thereof be served upon the accused or counsel.

Conclusion

Unlike the old rule where the trial in absentia of the fugitive/accused could not be held because he could not be duly notified thereof, the Court now considers the accused as deemed to have waived such notice and with more reason if he escaped from the authorities. To hold otherwise would impede the speedy disposition of justice and would result to a mockery of the criminal justice system by just fleeing from the hands of the law. After a wilful disobedience to the law and the Court, one cannot ask for a relief anchored on his constitutional rights the deprivation of which is caused by his utter disregard of the law himself.

Joint Accounts: Share of a deceased co-depositor, where should it go?

Joint savings accounts in banks may be covered by a survivorship agreement. Under such agreement, the co-depositors agree that upon the death of either of them, the share pertaining to the deceased shall accrue to the surviving co-depositor or he can even withdraw the entire deposit. A conflict however, may arise with respect to this agreement insofar as the portion belonging to the deceased co-depositor is concerned. The common question is whether the heirs of the deceased co-depositor is entitled to this portion as part of the distributable estate of the deceased or could it validly and automatically accrue to the surviving co-depositor without impairing the legitime of the compulsory heirs of the deceased co-depositor.

Share of a deceased co-depositor, which form part of the estate and which do not?

Anent these survivorship agreements in relation to joint savings accounts, the Supreme Court had an occasion to look into its nature in the case of Vitug v. CA (G.R. No. 82027, March 29, 1990). The Court also had the opportunity to inquire on whether the share of the deceased co-depositor shall pertain to the latter’s estate or to the account of his surviving co-depositor as dictated by the terms of survivorship agreement.

In this case, Romarico Vitug, petitioner, insists that the funds in question are his exclusive property having acquired the same through a survivorship agreement executed with his late wife, Dolores Vitug, and the bank on June 19, 1970. The trial courts upheld the validity of this agreement and granted the motion to sell some of the estate of Dolores Vitug, the proceeds of which shall be used to pay the personal funds of Romarico Vitug.

On the other hand, the Court of Appeals, in the petition for certiorari filed by the private respondent, held that the above-quoted survivorship agreement constitutes a conveyance mortis causa which “did not comply with the formalities of a valid will as prescribed by Article 805 of the Civil Code,” and secondly, assuming that it is a mere donation inter vivos, it is a prohibited donation under the provisions of Article 133 of the Civil Code.

In sustaining the validity of “survivorship agreements” and considering them as aleatory contracts, the Supreme Court held that the conveyance in question is not one of mortis causa, which should be embodied in a will. In such disposition, the bequest or device must pertain to the testator. In this case, the money subject of savings account was in the nature of conjugal funds. In the case relied on, Rivera v. People’s Bank and Trust Co. (G.R. No. L-47757, April 7, 1942), the Court has rejected claims that a survivorship agreement purports to deliver one party’s separate properties in favor of the other, but simply, their joint holdings.

The Court neither considered the survivorship agreement a donation inter vivos because it was to take effect after the death of one party. Moreover, it is not a donation between the spouses because it involved no conveyance of a spouse’s own properties to the other.

The Court is also convinced that the agreement involves no modification of the conjugal partnership, as held by the Court of Appeals, by “mere stipulation” and that it is no “cloak” to circumvent the law on conjugal property relations. The spouses are not prohibited by law to invest conjugal property, say, by way of a joint and several bank account, more commonly denominated in banking parlance as an “and/or” account. The joint account subject of this case is not a disposition in favor of the other, which would have arguably been sanctionable as a prohibited donation.

Further, the Supreme Court ruled that insofar as the respondent court ordered their inclusion in the inventory of assets left by Mrs. Vitug, the court was in error. Being the separate property of petitioner, it forms no more part of the estate of the deceased. (Emphasis supplied)

The Supreme Court however, qualified its ruling, to wit:

“But although the survivorship agreement is per se not contrary to law, its operation or effect may be violative of the law. For instance, if it be shown in a given case that such agreement is a mere cloak to hide an inofficious donation, to transfer property in fraud of creditors, or to defeat the legitime of a forced heir, it may be assailed and annulled upon such grounds. No such vice has been imputed and established against the agreement involved in this case.” (Rivera v. People’s Bank and Trust Co. )

It should be noted however, that pursuant to BIR Revenue Ruling No. 010-2003, for taxation purposes, survivorship agreement has an effect of a gift or donation mortis causa made by the deceased co-depositor during his lifetime but effective upon death. From the standpoint of the BIR, it is a transfer in contemplation of death and therefore, subject to estate tax under Section 85 (B) of the National Internal Revenue Code, to wit:

“(B) Transfer in Contemplation of Death – To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after death, or of which he has at any time made a transfer, by trust or otherwise, under which he has retained for his life or for any period which does not in fact end before his death (1) the possession or enjoyment of, or the right to the income from the property, or (2) the right, either alone or in conjunction with any person, to designate the person who shall possess or enjoy the property or the income therefrom; except in case of a bona fide sale for an adequate and full consideration in money or money’s worth.”

It may be inferred therefore that notwithstanding the express declaration of the Supreme Court that the share of the deceased co-depositor automatically transfers to the surviving co-depositor upon the former’s death under the survivorship agreement and thus, forms no more part of the estate of the deceased, such share nonetheless shall be included in computing the value of his gross estate for purposes of estate taxation.

Consistent with this BIR ruling is the case of Polido v. CA (G.R. No. 170632, July 10, 2007) where the surviving spouse, the petitioner, tries to withdraw the joint savings deposit they maintained by her deceased husband but was objected by the private respondent, the one who claims to be their only and adopted child, on the ground that he is entitled thereto as an heir. In favoring the private respondent, the Supreme Court held that the latter has all the rights to prohibit the surviving co-depositor from personally withdrawing the said bank account because it is mandated by law that after the death of the owner of the said account, any withdrawal is prohibited except by order of the Court or upon presentation of an Extrajudicial Settlement executed by the legal heirs and after compliance with all the requirements of the law.  Likewise the bank is prohibited to allow any withdrawal without submitting to it said requirements.

It is quite interesting that the Court further declared that even assuming that the Court will issue an order restraining the alleged heir from claiming the bank account, the surviving co-depositor still cannot withdraw any amount thereof because it is a part of the estate of the deceased co-depositor, and as provided for by laws before the bank allows any withdrawal, the surviving co-depositor has to follow certain procedures required by other laws governing estate settlement and one of which is the settlement of estate taxes. (Emphasis supplied)

However, as can be gleaned from the facts of Polido case, there is no survivorship agreement involved. It bears noting therefore that the distinction between the Vitug and Polido rulings by the Supreme Court lies on the existence of a survivorship agreement covering the joint account in question.

Tax Consequence

A survivorship agreement does not survive the prohibition against withdrawals from the account of the deceased co-depositor without first complying with the requirements in the settlement of estate taxes as laid down in the case of Polido v. CA. The second paragraph of Section 97 of the 1997 Tax Code provides:

“If a bank has knowledge of the death of a person, who maintained a bank deposit account alone, or jointly with another, it shall not allow any withdrawal from the said deposit account, unless the Commissioner has certified that the taxes imposed thereon by this Title have been paid; Provided, however, That the administrator of the estate or any one (1) of the heirs of the decedent may, upon authorization by the Commissioner, withdraw an amount not exceeding Twenty thousand pesos (P20,000) without the said certification. For this purpose, all withdrawal slips shall contain a statement to the effect that all of the joint depositors are still living at the time of withdrawal by any one of the joint depositors and such statement shall be under oath by the said depositors.” (Emphasis supplied)

Hence, the funds in the joint deposit account cannot be withdrawn by the surviving co-depositor/s unless the Commissioner has certified that the taxes imposed thereon by Title III of the 1997 Tax Code have been paid. Provided, however, that the administrator of the estate or any one (1) of the heirs of the deceased co-depositor may, upon the authorization by the Commissioner, withdraw an amount not exceeding Twenty thousand pesos (P20,000.00) without the said certification. (BIR Revenue Ruling No. 010-2003)

Conclusion

By virtue of a survivorship agreement, the share in the bank account of a co-depositor automatically becomes the property of the other co-depositor upon the former’s death without the need of any proceeding i.e. settlement of estate, for in the first place, it does not form part of the estate of the deceased. As any other contract, this is binding between the joint depositors and the validity of which was already upheld by the Supreme Court as well as the BIR.

On the other hand, it is when such agreement is not present where the share of the deceased co-depositor in a joint account shall form part of his gross estate. The joint depositors can also enter into an agreement to such effect. Upon the death of either of them, the respective heirs have the right to claim the bank account, although the determination of the amount of the share corresponding to the deceased co-depositor is a different story. However, this is without prejudice to the right of the surviving co-depositor where he himself is an heir or a creditor of the deceased co-depositor.

In either case, regardless of whether or not there is a survivorship agreement, the share of the deceased co-depositor in a joint savings account is subject to estate tax under Section 84 of the 1997 Tax Code. Withdrawal of the deposit either by the heir or a co-depositor is PROHIBITED unless there is compliance with the requirements set forth by the law.

Lastly, it should be stressed that a survivorship agreement, even though valid and binding, it does not necessarily mean that it is free from any scrutiny by the courts. The upholding of the validity and binding effect of such agreements applies on a case-to-case basis. If after a careful examination of the facts and circumstances surrounding a given case, it was shown that the survivorship agreement was used as a tool to circumvent or violate directly or indirectly any existing laws particularly on succession, or prejudice the rights of a third person, the courts of justice shall always stand in the way to struck down the same.

“UNLI DATA PLAN,” A Deception In Disguise

Data capping, broadband capping, bandwidth capping, all these terms denote only one meaning, limiting your Internet speed. For Internet subscribers like me, capping is not an unfamiliar term. It is the monthly limiting on the amount of data you can use over your Internet connection. When an Internet user hits that limit, different network operators engage in different actions, including slowing down data speeds, charging overage fees, and even disconnecting a subscriber.[1] For a normal Internet surfer, this is no big deal as hitting the limit is less likely to happen; but for a heavy Internet user like the torrent downloaders or those streaming videos, this is such a pain in the ass.

For the subscribers of these “Unli Data Plans” of various Internet Service Providers, what is really annoying is the concept of this capping. As a subscriber, you are paying for your fixed monthly Internet bill despite the limited and inconsistent speed of your Internet connection which is clearly contradicting with the terms of your subscription that says “unlimited.” One simple illustration is this, you dine in a fast-food restaurant with an “unlimited rice” promo, but the serving of rice being offered is actually limited to a maximum of 3 cups so that supplies will last. Otherwise, they will stop you from ordering or they will oblige you to pay the servings of rice exceeding the 3-cup limit. Ridiculous isn’t it; and perhaps to many, it is bulls**t.

Capping the Internet speed is purposely implemented by the service providers so as not to impair the service of others that results from Internet connection of other users at high rate over a long period of time. In other words, data capping is the method by which the service providers deal with what they call as “network congestion.” (Although others suggest that data capping has nothing to do with congestion. See the link below.) This is also known as the Fair Usage Policy.[2] One major reason and justification for this according to Globe[3] is to discourage those abusive Internet users such as, among others, the torrent downloaders that also promotes online piracy. However, Demokrasya.net.ph, a group which drafted the Cybercrime Law alternative called the Magna Carta for Philippine Internet Freedom, explained that data capping tends to injure not only the abusive but as well as the legitimate Internet users with a negative impact on our economy. See the link below for their full discussion.

While the limiting of Internet speed by means of data capping is annoying in itself, another thing that is really bothersome is the way the telecommunication companies are promoting their service. The term “unli” in their “Unli Data Plans” which means unlimited seems to be misleading. Although the terms of usage and the corresponding bandwidth limit on every plan is thoroughly explained to a subscriber as a standard procedure in applying for a plan, the condition of limiting the Internet speed is still inconsistent with the term “unli.” How come that the unlimited Internet connection is being restricted upon reaching a certain volume of data consumed.

This is obviously unfair for those who subscribed for their Unlimited Data Plan in expectation for an unlimited internet speed as the name of the promo suggests. If the concept of data capping by the service providers is downgrading the subscriber’s Internet speed after a certain limit has reached, then why not offer a consumable data plan where the subscriber can actually purchase a consumable data instead of misleading the public by the term “UNLIMITED” when there is actually a limit but charging a fixed and unreasonable fee therefor?

For example in my case, I am currently subscribed to Unli-LTE Plan of one of the big telecommunication network in the country. Based on my personal experience, my LTE or 4G connection consistently drops to a 3G connection which is definitely slower. I’m a heavy downloader so this is really frustrating. Although I understand that the strength of Internet connection relies on the location of the subscriber, what I am trying to point out is that the service I am currently experiencing is apparently contrary to what the network is promoting which I supposed to be an “Unlimited LTE,” the reason why I availed the plan in the first place.

Another thing is the advertisement of certain speed of Internet connection. According to the experience of most Internet users, the speed of their Internet connection is actually half of what is being promised. It seems that these 2mbps up to 48mbps advertisements or whatsoever appear to be but the maximum speed and still depends if you were lucky enough to experience it. Read more about this topic on the link below.

The issue particularly on data capping has already caught the attention of the Department of Justice (DOJ). In a nine-page advisory, the DOJ declared that the imposition of fair usage policy (FUP) of telcos on unlimited Internet service is inconsistent with the provisions of the Consumer Act of the Philippines, particularly on fair packaging[4] as well as misleading trade practice and advertisements.[5] “While there is nothing wrong with advertisements and promotions, what is promised must be delivered,” said Justice Secretary Leila de Lima.[6]

In addition to this, normally in this kind of contract, there is no such thing as pre-termination clause in favor of the aggrieved subscriber where the latter can reasonably pre-terminate or at least downgrade his subscription in case he become dissatisfied with the service of the network provider, but rather he is left only with the option to either continue the plan regardless of the quality of the service or pre-terminate the same with a corresponding fee equivalent to the remaining balance of the contract’s term.

Many suggest that the practice of telecommunication companies of providing a slower Internet connection for a higher subscription fee has something to do with business competition. But whatever might be the true reason behind the slow Internet in the Philippines, why keep luring and deceiving the public by these bogus advertisements? Why not expand the bandwidth instead of capping it to meet the demands? Otherwise, why keep on promising an unlimited Internet service and speed when the fact is that the same cannot be provided due to the alleged problem of network congestion?

The issue has been the subject of numerous complaints by the subscribers for the past few years and I wonder what actions are being taken on the matter by the National Telecommunications Commission and the Department of Justice as of the moment. But while the validity of the Fair Use Policy by telecommunication companies is yet to be determined, we as non-techie consumers have no option but to succumb on their deceitful means of making business.

Endnotes:

[1] Public Knowledge: Data Caps https://www.publicknowledge.org/issues/data-caps

[2] Globe, Smart defend ‘unlimited’ data cap http://www.gmanetwork.com/news/story/350010/scitech/technology/globe-smart-defend-unlimited-data-cap

[3] NTC summons Globe on data caps, eyes new fair use rules http://www.rappler.com/business/industries/215-tech-biz/49979-ntc-globe-internet-data-caps

[4] Republic Act 7394: “Consumer Act of the Philippines”

Article 76. Prohibited Acts on Labeling and Packaging. – It shall be unlawful for any person, either as principal or agent, engaged in the labeling or packaging of any consumer product, to display or distribute or to cause to be displayed or distributed in commerce any consumer product whose package or label does not conform to the provisions of this Chapter.

[5] Ibid.

Article 110. False, Deceptive or Misleading Advertisement. – It shall be unlawful for any person to disseminate or to cause the dissemination of any false, deceptive or misleading advertisement by Philippine mail or in commerce by print, radio, television, outdoor advertisement or other medium for the purpose of inducing or which is likely to induce directly or indirectly the purchase of consumer products or services.

An advertisement shall be false, deceptive or misleading if it is not in conformity with the provisions of this Act or if it is misleading in a material respect. In determining whether any advertisement is false, deceptive or misleading, there shall be taken into account, among other things, not only representations made or any combination thereof, but also the extent to which the advertisement fails to reveal material facts in the light of such representations, or materials with respect to consequences which may result from the use or application of consumer products or services to which the advertisement relates under the conditions prescribed in said advertisement, or under such conditions as are customary or usual.

[6] DOJ warns telcos vs. ‘misleading’ unli-Internet promos http://www.gmanetwork.com/news/story/392276/economy/business/doj-warns-telcos-vs-misleading-unli-internet-promos

External Links:

1. https://www.techdirt.com/articles/20130118/17425221736/cable-industry-finally-admits-that-data-caps-have-nothing-to-do-with-congestion.shtml

2. http://democracy.net.ph/caps-locked/

3. http://www.reddit.com/r/Philippines/comments/2aurzq/how_pldt_deliberately_keeps_local_internet

TO GOD BE THE GLORY!

A Citizens’ Call: Revive Death Penalty!

I do believe that lack of a barbaric nature of our legal system is, in a way, a contributing factor why criminals nowadays fear no law and recognize no authority. With the rise of ruthless killings, assassinations, rampant human and drug trafficking and rape with homicide victims becoming younger and younger and leaving the law enforcers clueless and nowhere to start their investigation, justice is really nowhere to find. But it doesn’t mean descending to the level below civilization in engaging in an all-out war against criminality. What our country needs in this time of inflating crime rate is a concrete, impartial and most importantly, a fierce criminal justice system.

Aside from the fact that our Revised Penal Code badly needs revision and not to mention some of its dead and absurd provisions, another thing that is being viewed as a flaw in our criminal justice system is the absence of harsher penalties which now raises the question of bringing the death penalty back into our legal system.

The imposition of death penalty as a capital punishment is a matter of debate and mixed opinions for Filipinos. Some oppose it on religious and humanitarian grounds on one hand while some see it as a way of deterring crimes on the other hand. There are two major issues surrounding the question of reviving the death penalty in the Philippines. First, is it really a crime deterring measure? Second, is the penalty proper considering the current situation of our legal system?

Anent the first issue, whether a capital punishment has a deterring effect on crime, this is an argument that is yet to be supported by concrete and reliable studies and must be based on facts. As to the second issue, since we are all aware that not every convict is guilty, it is being feared that an innocent accused might be sentenced to death by reason of irregularities and imperfections of our criminal justice system. One crucial instance sought to be prevented by the suspension of death penalty is an innocent man be placed in the death chamber. Once his life is taken, it is the end for him.

Answering these two issues simply on the reverse, assuming death penalty was proven to be a non-deterrent and assuming that there are records showing that there are innocents who were indeed executed, are these arguments sufficient enough to bury into oblivion the capital punishment of death? Is our government incapable of re-imposing death penalty but assuring the public of significant drop in crime rate and justice will be well served both to the guilty and the innocent?

Discrimination against the Poor

The connotation that the death penalty is only meant for the poor criminals hence, a discriminatory penalty, is also a blemish in our criminal justice system. Based on records, majority of the inmates in the death row belong to the lower class who are normally financially incapable of affording a counsel of their own choice and in such a case, the court appoints one. However, most of the time, an inexperienced, incompetent and ineffective counsel represents them that eventually leads to deprivation of a fair trial and due process as a result. In contrast, a wealthy or a high profile accused could actually purchase a favorable decision or even manipulate the entire criminal justice system as he desires to the exhaustion of his resources and connections.

Death of the Death Penalty

When the death penalty was abolished in 2006 by virtue of the Republic Act No. 9346, the penalty of life imprisonment and reclusion perpetua became the capital punishment in lieu thereof.[1] In other words, the provisions of the Revised Penal Code and other laws imposing death penalty as a punishment as well as the law designating lethal injection[2] as the manner by which the convict is to be executed were all amended and repealed accordingly.

The law prohibiting the imposition of death penalty was signed by the then President Gloria Macapagal-Arroyo on June 24, 2006. It is actually the second suspension of the death penalty in the Philippines since the drafting of the 1987 Constitution which limited the application of the death penalty to only a few crimes. The approval of Arroyo of the said law spared the lives of about 1,230 inmates in the death row. However, it is being perceived by her adversaries as a move to gain political support and advocacy from various religious groups especially the Roman Catholic Church who persistently opposes the practice.

The Urge for Revival

Two senators from the minority bloc, Senators Vicente “Tito” Sotto III and Joseph Victor “JV” Ejercito are currently pushing for the death penalty in view of the increasing crime rate which they believe as compelling reason to do so. Senate President Franklin Drilon also urged the Senate to start debates on the matter.

Senator Sotto is also aiming to amend his proposals for the imposition of death penalty exclusively for high-level drug traffickers. “I’m pushing for the death penalty for high-scale drug trafficking so that we’re not treated like a playground. We’re called a playground of drug traffickers. They can’t do it in Singapore or Malaysia or China because they’ll get killed. In the Philippines, they will be jailed in Bilibid with no air-conditioner but there’s a refrigerator, a television and other things,” the Senator said.

Ironically, Senator Sotto who is now seeking to revive the death penalty is also the pro-life senator who opposed the reproductive health bill.

In his opposition, President Benigno Aquino III does not believe that the only way to deter criminals is by reviving the death penalty. He rather emphasized the need of reforms in our criminal justice system.

I wonder if PNoy and those other legislators sharing the same view would still have the same stance if they themselves or their loved ones become a victim of these heinous crimes.

One repercussion I see in the absence of a capital punishment of death is the rise of vigilantes who would rather shed more blood in order to attain justice alongside vengeance. This is actually one of the arguments the pro-death penalty legislators are citing in support of their proposal.

Morality and Religion

Another impediment that is believed to hinder the revival of the death penalty is the question of morality. The position of the Roman Catholic Church as well as of other anti-death penalty groups and organizations is that the capital punishment of death is a violation of human rights and is against the biblical teachings on the sanctity of human life.

The Catholic Bishops’ Conference of the Philippines (CBCP) in a statement said the imperfection of our judicial system could lead to injustice, defining further the restoration of death penalty in the country as the condition where the state assumes the very posture of violence that it condemns.

Speaking of religion, the advocates of death penalty on the other hand, base their argument from the bible itself. Below is one classic example of a related verse:

“Whoever strikes a man so that he dies shall be put to death.” – Exodus 21:12

Thus, it is believed that even the Holy Scripture sanctions death as a capital punishment for crimes. The next verse however, posits the reverse:

“Beloved, never avenge yourselves, but leave it to the wrath of God, for it is written, Vengeance is mine, I will repay, says the Lord.” – Romans 12:19

This contradicting writings of the bible gave rise to the mixed views and interpretation of the opposing groups.

 

It is also not surprising that the head of the Roman Catholic Church, Pope Francis (the incumbent as of the time of this writing) who was even coined as the most liberal pope ever, calls for the abolition of death penalty, upholding the anti-death penalty position of the Catholic Church. He even condemns the imposition of life sentence as a punishment calling it a “hidden death penalty.”

I must agree on his second position. Spending the rest of your life behind bars is a living hell, considering also the physical condition of our prison facilities in the country. Moreover, letting the convict live in torment and degradation for the rest of his entire life is one of the cruelest form of punishment someone could ever suffer.

An Eye for an Eye, a Tooth for a Tooth

The imposition of the State of death penalty is perceived by many as “violence against violence” approach to fight criminality; a retaliation by the State for the violence by means of destruction of life. Others consider the practice as disregarding civilization. The idea behind is that the punishment should equal the wrong done. The only difference is that the violence resorted to by the government is lawful.

This theory I believe will somehow instill a feeling of fear among these hardened criminals. It is therefore quite interesting to know if these cold-blooded murderers, rapists, kidnappers, human traffickers, drug lords, plunderers and greedy government officials could still recognize the fear of death.

Conclusion

Both the opponents and advocates of the death penalty share the same cause, justice. Whether its re-imposition will deter crimes is of no moment as its link to crime rate has not yet been established. Besides, the penalty of life imprisonment was neither proven to be a crime deterrent. Yet, the solution to rising criminality still lies in the effective law implementation and enforcement, regardless of whether or not we have the death penalty.

While the very purpose of our correctional system is to rehabilitate the convict and to prepare him in his return to the community as a law-abiding citizen, let us face the truth that not all criminals are bound to be so. There are criminals who are wicked, hell-bent on bringing chaos and entirely disregard human life and whose continued existence even within the prison cells poses a threat on the life and security of those who choose to live in peace and orderly society. No matter what, it is a primary responsibility of the State to protect its people from this kind of menace. The government must consider this, is this the time for an alternative or additional measure to be adopted on the verge of rising criminality when the existing ones were already proven ineffective?

On the other hand, restoring death penalty would be a futile effort if the poor setup of our criminal justice system remains as it is. Just as the Senator who pushes its revival has said, the reform of justice system can be pushed alongside death penalty.

Finally, let us take into account that these lawless elements are indispensable fragments of a civilized society and so as its extinguishment. There are times where the only way to battle unlawful aggression is by means of another but lawful aggression; and in order to spare the lives of those who rightfully deserve it, another’s must be lawfully spent.

 Endnotes:

[1] Republic Act No. 9346

Section 2. In lieu of the death penalty, the following shall be imposed.

(a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties of the Revised Penal Code; or

(b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the penalties of the Revised Penal Code.

[2] Republic Act No. 8177: Act Designating Death by Lethal Injection

References / External links:

1. http://en.wikipilipinas.org/index.php/Republic_Act_No._9346

2. http://en.m.wikipedia.org/wiki/Capital_punishment_in_the_Philippines

3. http://www.cruxnow.com/life/2014/10/23/pope-francis-blasts-supermax-prisons-as-torture/

4. http://www.huffingtonpost.com/2014/10/23/pope-francis-death-penalty_n_6035646.html

5. http://www.rappler.com/nation/49180-aquino-hesitant-bring-back-death-penalty

6. http://www.mb.com.ph/drilon-start-debates-on-revival-of-death-penalty/

7. http://newsinfo.inquirer.net/657946/death-penalty-let-people-decide-sotto

TO GOD BE THE GLORY!

Extramarital Affairs In The Workplace, A Ground For Termination?

To fall in love with your officemate or co-worker is something beyond question of your employer, your superior, or even your colleagues as it is none of their business. But to have an illicit affair within your workplace, that’s another story. It is really hard to dodge that arrow of that naughty kid. If you got hit by cupid but for the wrong person, in the wrong place and on the wrong time, and you think your “you and me against the world” love story might be a telenovela adaptation in the future honoring otherwise your unfaithfulness to your spouse, then you might want to think again. Is it really worth it risking your personal life, your career, your reputation and most especially, your family?

Having an illicit affair with your co-employee is considered an act of immorality. It is true that this is a matter beyond the control of the company and the theory behind is that the employer should never pry on the private affairs of its employees.

However, in some instances, if the illicit relationship is also one of a superior-subordinate relationship in that workplace, then the management might interfere even in the absence of a company policy regarding the matter due to possible conflict of interest that might arise to the nature of the business of such company or at least to the department or group where they both belong. But up to what extent can the employer validly do so in protecting its own interest and without violating the due process clause of our labor laws? Is such immoral act also a valid ground for termination of the employee?

The Labor Code provides the valid grounds for termination. Article 282[1] provides for the just causes while Article 283[2] for authorized causes. However, in the enumerations provided for by the law, immorality is not one of those. If so, can the employer, if it so desires and to its best interest, validly terminate the services of the employee having an extra-marital affair with his or her co-employee?

While the structure of the Labor Code appears to be generally in favor of labor, this does not mean that the employer is devoid of its own prerogatives one of which is the power to terminate the services of an employee for violation of a company policy which the latter agreed upon during the signing of the employment contract. Typically, if there is “immorality clause” in the employment contract, company policy, rules or regulations or company code of conduct which provides for termination of an employee by reason of immorality, then an employee may be terminated if found guilty for such ground. However, such kind of immorality must be of a gross in character and not merely simple immorality. Furthermore, at this stage where the employee is in the risk of losing his or her job, the employer must observe due process. That is, giving the defendant employee the opportunity to explain his or her side and to defend him or herself. As we all know, adherence to the company policy is not always absolute. A humanitarian consideration from the employer is still possible depending on the circumstances attending the issue. As the Supreme Court once said in a case[3], to constitute immorality, the circumstances of each particular case must be holistically considered and evaluated in the light of prevailing norms of conduct and the applicable law.

In some companies, immorality is a ground for disciplinary action but not necessarily termination. The penalty also varies on a case to case basis depending on the specific immoral act committed as prohibited by the company policy. In addition, there are companies that consider only work-related acts of immorality as a ground for termination or disciplinary action for the reason that such act renders the employee morally unfit to discharge his duties and responsibilities or makes him undeserving to the position he currently holds where a great degree of integrity and ethical values are expected of him.

Thus, an employee, no matter how valuable he or she is to the company, can be terminated by his or her employer for acts of immorality regardless of whether or not the same is work-related insofar as gross violation of the company policy or company’s code of conduct is concerned.

Dismissal of an employee for engaging in an extra-marital affair was held valid by the Supreme Court

In this case[4], the respondent was dismissed from his employment as a bookkeeper of petitioner cooperative for engaging in extra-marital affairs, which is a ground for termination of employment stated in petitioner cooperative’s Personnel Policy. The Supreme Court said that while respondent’s act of engaging in extra-marital affairs may be considered personal to him and does not directly affect the performance of his assigned task as bookkeeper, aside from the fact that the act was specifically provided for by petitioner’s Personnel Policy as one of the grounds for termination of employment, said act raised concerns to petitioner as the Board received numerous complaints and petitions from the cooperative members themselves asking for the removal of respondent because of his immoral conduct.

Other repercussions of the marital infidelity

While acts of immorality regardless of whether work-related or not, are of no concern to some companies, the impact of such immoral act such as public humiliation, shame, criticism or being the subject of office gossip might be considered as a punishment in itself. Nonetheless, if the illicit affair is being tolerated in the workplace, the embarrassment is lessened to some extent, if not totally erased from the prying eyes of their colleagues. Besides, even if they eventually become free from everybody’s castigation, they still remain fugitives of their own conscience.

With respect to penal consequences, this usually comes in when the aggrieved spouse, aside from seeking termination from employment of his or her philandering partner and/or the paramour, also files a criminal case against them for adultery or concubinage.[5] This is also apart from the damages that the offended spouse may claim.[6]

While criminal prosecution for the said crimes may be challenging for the aggrieved spouse who also seeks termination from employment of these cheater employees, he or she is lucky enough if they are convicted for the said crimes for they are as good as terminated because of the imprisonment they will have to serve.

It is to be noted however, that the judgment in a criminal case has no binding or conclusive effect in a labor case.  Conviction of an employee in a criminal case is not indispensable to warrant an employee’s dismissal.[7] Thus, in a situation where there is a criminal case for adultery or concubinage and a complaint for illegal dismissal, the judgment in the criminal case regardless of whether it is acquittal or conviction, cannot be relied upon by the labor arbiter in rendering his decision because he is duty bound to make his own findings of facts after the presentation and due consideration of all the pertinent circumstances and evidence of the case.

Summary

Extra-marital relationship between co-employees is not uncommon. It exists in every workplace and the truth is, even their colleagues or superiors tolerate the same. A company usually does not discourage any romantic relationship between office staff. But neither it tolerates any illicit one as the same is viewed as reflective of the company’s image and reputation especially by the judging public.

Immorality in the workplace is like a leech that devours on the esprit de corps among the employees. Employees who were already consumed by such are no different from company thieves. The latter steal the company resources while the former steal the company morale.

“Marriage should be honored by all, and the marriage bed kept pure, for God will judge the adulterer and all the sexually immoral.”

-Hebrew 13:4

Endnotes:

[1] Article 282. Termination by employer. An employer may terminate an employment for any of the following causes:

Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

Gross and habitual neglect by the employee of his duties;

Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;

Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and

Other causes analogous to the foregoing.

[2] Article 283. Closure of establishment and reduction of personnel. The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year.

[3] Chua-Qua vs. Clave, G.R. No. 49549, August 30, 1990

[4] Alilem Credit Cooperative, Inc. vs. Bandiola, G.R. No. 173489, February 25, 2013

[5] The Revised Penal Code

Article 333. Who are guilty of adultery. – Adultery is committed by any married woman who shall have sexual intercourse with a man not her husband and by the man who has carnal knowledge of her knowing her to be married, even if the marriage be subsequently declared void.

Adultery shall be punished by prision correccional in its medium and maximum periods.

If the person guilty of adultery committed this offense while being abandoned without justification by the offended spouse, the penalty next lower in degree than that provided in the next preceding paragraph shall be imposed.

Article 334. Concubinage. – Any husband who shall keep a mistress in the conjugal dwelling, or shall have sexual intercourse, under scandalous circumstances, with a woman who is not his wife, or shall cohabit with her in any other place, shall be punished by prision correccional in its minimum and medium periods.

The concubine shall suffer the penalty of destierro.

[6] Ibid.

Article 345. Civil liability of persons guilty of crimes against chastity. 

xxx

The adulterer and the concubine in the case provided for in Articles 333 and 334 may also be sentenced, in the same proceeding or in a separate civil proceeding, to indemnify for damages caused to the offended spouse.

Refer also to Reference No. 2 in the legal opinion of Atty. Allen Liberato regarding the liability for damages of the mistress under the Civil Code.

[7] Nicolas vs. NLRC, G.R. No. 113948, July 5, 1996

References:

1.) “Office Romances Are Risky Business” by Areva Martin, Esq.
http://martin-martin.net/resources/office-romances-are-risky-business/

2.) “Can a mistress file a case against the legal wife?” by Atty. Allen Liberato
http://www.herword.com/herrights/main.php?id=can_a_mistress_file_a_case_against_legal_wife

3.) “Employment & Immigration Update” April-June 2013 Volume XI, Issue 2 by SyCip Salazar Hernandez and Gatmaitan

Click to access Employment%20and%20Immigration%20Update%2020132q.pdf

4.) “Free Legal Advice Philippines”
http://www.pinoylawyer.org/t6293-immoral-daw-ground-for-termination

5.) “Labor Relations Law” Vol. 2, 2012 Edition by Dean Salvador Poquiz

TO GOD BE THE GLORY!