Archive for March, 2012


CASE 2012-0038: PEOPLE OF THE PHILIPPINES VS. FRANCISCA TALARO,* GREGORIO TALARO,** NORBERTO (JUN) ADVIENTO, RENATO RAMOS, RODOLFO DUZON,*** RAYMUNDO ZAMORA** and LOLITO AQUINO (G.R. No. 175781, March 20, 2012, PERALTA, J.) SUBJECT/S: MURDER (BRIEF TITLE:  PEOPLE VS. TALARO)

 

 

=====================

 

DISPOSITIVE:

 

 

          WHEREFORE, the Decision of the Court of Appeals dated December 15, 2005 in CA-G.R. CR-H.C. No. 00071 is hereby AFFIRMED with the MODIFICATION that the penalty of death imposed on accused-appellants is REDUCED to reclusion perpetua without possibility of parole in accordance with R.A. No. 9346; and INCREASING the award of moral damages from P50,000.00 to P75,000.00, and the award of exemplary damages from P25,000.00 to P30,000.00.  The rest of the award of the Court of Appeals is hereby maintained.

 

SO ORDERED.

 

 

=====================

 

 

 

 

 

 

Republic of thePhilippines

Supreme Court

Manila

                                                                                                                                                                                                                                                                                                                                                                                       

 

                                                                                                EN BANC

 

PEOPLE OF THE PHILIPPINES,

                              Plaintiff-Appellee,

 

 

 

 

                        – versus

 

 

 

 

FRANCISCA TALARO,* GREGORIO TALARO,** NORBERTO (JUN) ADVIENTO, RENATO RAMOS, RODOLFO DUZON,*** RAYMUNDO ZAMORA** and LOLITO AQUINO,

                               Accused.

 

NORBERTO (JUN) ADVIENTO, RENATO RAMOS and LOLITO AQUINO,

                               Accused-Appellants.

G.R. No. 175781

 

Present:

 

     corona, C.J.,

     CARPIO,

     VELASCO, JR.,

     LEONARDO-DE CASTRO,

     BRION,

     PERALTA,

     BERSAMIN,

      DEL CASTILLO,****

     ABAD,

     VILLARAMA, JR.,

     PEREZ,

     MENDOZA,

     SERENO,

     REYES, and

     PERLAS-BERNABE, JJ.

 

Promulgated:

        March 20, 2012

 

x—————————————————————————————–x

 

DECISION

 

 

PERALTA, J.:

 

 

          This is an automatic review of the Decision[1][1] of the Court of Appeals (CA) promulgated on December, 15, 2005, in accordance with Section 2 of Rule 125, in relation to Section 3 of Rule 56, of the Rules of Court.  The CA affirmed with modification the judgment rendered by the Regional Trial Court (RTC), Branch 38 of Lingayen, Pangasinan, thereby finding accused-appellants Norberto (Jun) Adviento, Renato Ramos and Lolito Aquino, guilty beyond reasonable doubt of the crime of Murder and sentencing them to death, but acquitting accused Rodolfo Duzon.

 

          Accused-appellants were charged before the RTC of Urdaneta, Pangasinan, with the crime of murder under an Information reading as follows:

 

            That on or about the 26th day of April 1994, in the Poblacion of the Municipality of Laoac, Province of Pangasinan, and within the jurisdiction of this Honorable Court, the said accused, conspiring, confederating with each other, with intent to kill, and with treachery, and evident premeditation, in consideration of a price, and by means of motor vehicle, did then and there, willfully, unlawfully and feloniously attack and shoot one MELVIN ALIPIO, with a handgun hitting the latter in the different parts of his body and the wounds being mortal caused directly the death of said MELVIN ALIPIO, to the damage and prejudice of his heirs.

 

CONTRARY to Article 248, Revised Penal Code.[2][2]

 

          The testimonies of prosecution witnesses showed the sequence of events shortly before and after the killing of victim Melvin Alipio to be as follows.

 

          Raymundo Zamora is the nephew of Gregorio Talaro, the husband of Francisca Talaro.  In the morning of April 24, 1994, when Zamora went home for breakfast after driving his tricycle, he found Francisca Talaro, Lolito Aquino, Renato “Atong” Ramos, and Norberto “Jun” Adviento conversing among themselves under a santol tree in front of his (Zamora’s) house.  He went near the group to find out what they were talking about and he learned that his aunt, Francisca Talaro, was transacting with the other three accused-appellants for the killing of Atty. Melvin Alipio.  He was merely a meter away from the group so he heard the group’s conversation.  He learned that Francisca Talaro would give the three accused-appellants an advance payment of P30,000.00 and then another P30,000.00 after Atty. Melvin Alipio is killed, with said last payment to be delivered in Barangay (Brgy.) Bactad.  The three accused-appellants then nodded their heads in agreement.  After learning of the group’s plan, Zamora got scared and stayed away from the group, but three days after that meeting in front of his house, he was asked by Francisca Talaro to drive her and her husband Gregorio to Brgy. Bactad.  The Talaro spouses alighted at a place in Brgy. Bactad, while Zamora stayed in his tricycle and merely waited for them.  He assumed that the couple delivered the payment of P30,000.00 to someone in Brgy. Bactad.[3][3]

 

          Accused-appellant Lolito Aquino, when questioned during preliminary investigation, admitted that he and co-accused Renato Ramos conducted a surveillance on Atty. Alipio in the afternoon of April 25, 1994.[4][4]

 

          Around 6 o’clock in the morning of April 26, 1994, tricycle driver Rodolfo Duzon was at the parking area in the poblacion of Urdaneta waiting for passengers, when accused-appellant Renato Ramos approached him.  Accused-appellant Ramos offered to pay Rodolfo Duzon P200.00 for the latter to drive Ramos’ motorcycle to Laoac, Pangasinan to take some onions and turnips there.  Duzon agreed, so after bringing his own tricycle home to his house in Bactad, Urdaneta, he then drove Ramos’ motorcycle to the poblacion of Urdaneta.  At the poblacion, Ramos bought a basket where he placed the onions and turnips.  Ramos then told Duzon to drive the motorcycle to Laoac, but they first passed by Garcia Street in Urdaneta.  At a house along Garcia Street, Ramos alighted and talked to someone whom Rodolfo Duzon later came to know as accused-appellant Lolito Aquino.  Ramos then told Duzon that after coming from Laoac, Duzon should leave the motorcycle at that house on Garcia Street with Lolito Aquino.  Ramos and Duzon then proceeded to Laoac, stopping at a gas station where they fueled up.  Ramos alighted from the motorcycle at the gas station and, taking along the basket of onions and turnips, walked towards Guardian Angel Hospital (the clinic owned by the Alipios).  Five minutes after Ramos alighted, Duzon heard three gunshots coming from the west, and moments later, he saw Ramos, who was coming toward him, being chased by another man.  When Ramos got to the motorcycle, he ordered Duzon to immediately drive away, and poked a gun at Duzon’s back.   Ramos then instructed Duzon as to the route they should take until they reached Urdaneta where Ramos alighted, leaving Duzon with instructions to bring the motorcycle to Garcia Street, leave it with Lolito Aquino, then meet him (Ramos) again at the poblacion where he (Duzon) will be paid P200.00 for his services.  Duzon did as he was told, but when he met with Ramos at the poblacion and asked for the P200.00, Ramos got mad and shouted invectives at him.  A few days later, he again ran into Ramos who warned him to keep his silence, threatening to kill him (Duzon) too if he tells anyone about the killing.  Accused-appellant Norberto (Jun) Adviento also threatened him not to reveal to anyone whatever he knows about the crime.  That was why Duzon decided to keep quiet.  Later, however, he revealed the matter to his brother, Victoriano Duzon, who accompanied him to the Criminal Investigation Services (CIS) Office in Urdaneta so he could give his statement.  He executed affidavits, assisted by a lawyer from the Public Attorney’s Office (PAO), attesting to what he knew about the crime, in his desire to be a state witness.[5][5]

 

          Witness Rene Balanga, who was the helper of the spouses Atty. Melvin and Dr. Lina Alipio, was cleaning the windows at the clinic of Dr. Alipio around 8 o’clock in the morning of April 26, 1994.  He heard three gunshots coming from the garage of the clinic, which was around ten meters away from where he was.  Immediately after the gunshots, he saw a man quickly walking out from the garage, going towards the main gate, but he was not able to clearly see the face of the man.  He merely observed that the man was around 5’4” to 5’5” in height, medium-built, wearing a blue jacket and faded maong (denim) pants.  He ran towards the garage and there, he saw Atty. Melvin Alipio lying dead.  He then chased after the man so he could identify him better but he did not succeed in doing so because the driver of the motorcycle that the gunman was boarding was already drawing something out from the rear portion of the motorcycle.  After the assailant sped off, Balanga went to the police station in Laoac to report the crime and give his statement before the CIS.  Sometime later, at the CIS Office, he identified Rodolfo Duzon as the driver of the motorcycle used by the gunman to get away.[6][6]

 

          Another eyewitness, Eusebio Hidalgo, whose son was confined at the clinic, was sitting at a bench in the garage of the clinic on the morning of April 26, 1994.  Two other women who were looking for Atty. Alipio also sat at the bench with him after he told them that Atty. Alipio was still having his breakfast.  After a few minutes, a man arrived looking for Dr. Alipio, and also sat at the bench.  Thereafter, Atty. Alipio came out to the garage and talked to the two women.  When Atty. Alipio finished talking to them, the man sitting with them on the bench suddenly stood up and shot Atty. Alipio three times.  Atty. Alipio was merely one meter away from the assailant when the latter shot him.  After the shooting, the assailant walked away.  Hidalgothen saw the helper at the clinic, Reny Balanga, run after the assailant, but the latter had whistled to his companion who was waiting on his motorcycle and the two were able to speed away aboard said vehicle.  Hidalgoidentified the assailant from a picture[7][7] shown to him.[8][8]  The picture was that of Renato Ramos.[9][9]

 

          A few weeks after Atty. Melvin Alipio had been killed, Zamorawas in the parking lot in Sta. Maria Norte in Binalonan, when  accused-appellant Aquino approached him and told him to remind Francisca Talaro that she still has to pay him (Aquino) P10,000.00.  Zamora then immediately told his uncle Gregorio Talaro about Aquino’s message and the very next day, Gregorio went to Zamora’s house with the P10,000.00.  Gregorio could no longer wait for Aquino so he just left the money with Zamora, instructing him to hand it over to Aquino when the latter arrives.  Later that day, Zamora saw Aquino so he told him (Aquino) to just get the money from his house.  About three weeks later, Aquino again went to Zamora’s house, this time saying he needs another P5,000.00 just in case he needs to escape.  Zamora then contacted Francisca Talaro and conveyed Aquino’s message to her.  The following day, Gregorio again went to Zamora’s house and left the P3,000.00 for Aquino. That afternoon, Zamora again told Aquino to just pick up the money from his house.  Zamora observed that Aquino seemed happy enough with the P3,000.00 he received.[10][10]

 

          Zamorasaid that he thinks the Talaros had Atty. Alipio killed because the latter was not able to comply with his contractual obligations to the Talaros to complete the construction of a building.  Dr. Lina Alipio, the wife of the victim Atty. Melvin Alipio, confirmed that indeed, the victim entered into an agreement with Rodolfo Talaro, the Talaro spouses’ son, for the construction of a building, but the construction was not finished within the agreed one-year period because of the sudden rise of prices for materials.  Atty. Alipio asked Rodolfo for additional payment so he could finish construction, but the latter refused to pay more.  Dr. Alipio stated that eventually, Atty. Alipio and Rodolfo agreed that Atty. Alipio would return all the money he received from Rodolfo and the whole property would, in turn, be turned over to Atty. Alipio.  Atty. Alipio was unable to return the money despite several demands made by Rodolfo, and Dr. Alipio believes this is the reason why the Talaros had her husband killed.  Dr. Alipio further testified on matters regarding expenses for the wake and burial, and the earnings of her husband.[11][11]

 

          Dr. Arnulfo Bacarro conducted the autopsy on the victim and stated that three slugs were taken from the body of the victim, and the cause of death was internal hemorrhage.[12][12]  Police officers testified on how they conducted the investigation, stating that accused-appellant Aquino and Zamora’s statements were taken in the presence of their respective lawyers.  They maintain that no bodily harm was inflicted on the accused-appellants while they were being investigated.[13][13]

 

          On the other hand, accused-appellant Lolito Aquino stated that he was taken by CIS men without a warrant of arrest; that he was mauled by police authorities while under detention, but could not undergo a medical check-up due to fear from threats that he would be killed by police authorities if he did so; that he was assisted by a PAO lawyer when he made his confession, but he did not read the contents of the document, Sgt. Tomelden just ordered him to sign the same;  that the PAO lawyer is not his own choice; that he does not know Rodolfo Duzon and Raymundo Zamora; and that he was not present at the meeting held in Raymundo Zamora’s yard.  He admitted, however, that the motorcycle used by the gunman belongs to him; and that he first agreed to be a state witness because he was promised to be paid P20,000.00 and that he would be placed in the witness protection program.[14][14]

 

          Accused-appellant Norberto (Jun) Adviento’s defense is denial and alibi.  He claimed that he was not present during the April 24, 1994 meeting held to plan the killing of Atty. Alipio, because on said date and time, he was in the house of Congressman Amadito Perez, for whom he works as driver-messenger, and that morning, he also drove the Congressman’s family to church to hear mass.  On April 26, 1994, he also reported for work at the house of the Congressman from 8 o’clock in the morning until 5 o’clock in the afternoon.  He likewise denied personally knowing any of his co-accused except for Duzon whose face is familiar to him.[15][15]

 

          After trial, the RTC rendered judgment as follows:

 

            Wherefore, in the light of all the considerations discussed above, this court hereby finds and holds the accused Francisca Talaro, Norberto (Jun) Adviento, Renato Ramos, Rodolfo Duzon and Lolito Aquino, guilty beyond reasonable doubt of the crime of Murder defined and penalized under the provisions of Article 248 of the Revised Penal Code as amended by Republic Act No. 7659 and conformable thereto, pursuant to law, hereby imposes on each of the accused the death penalty and to pay proportionately the costs of the proceedings.

 

            The court further orders the accused to indemnify, jointly and severally, the heirs of the deceased the sum of P83,000.00 as actual damages; P100,000.00 as moral damages; P50,000.00 as death indemnity; P10,000.00 as [attorney’s fees] paid to their private prosecutor and P2,400,000.00 as loss in the earning capacity of the deceased without subsidiary imprisonment in case of insolvency.

 

            Taking into consideration that accused Francisca Talaro is already 75 years old, the death penalty meted upon her shall be commuted to reclusion perpetua with the accessory penalties provided in Article 40 of the Revised Penal Code.

 

            And considering that the evidence adduced by the prosecution against the accused Gregorio Talaro is not sufficient to sustain his conviction of the offense filed against him, the court hereby declares accused Gregorio Talaro not guilty.  The court likewise declares Raymundo Zamora acquitted of the offense filed against him.

 

            Let an order of arrest be issued against accused Renato Ramos who escaped from jail during the pendency of this case, to be served by the NBI, CIC and PNP of Urdaneta, Pangasinan.

 

            SO ORDERED.[16][16]

 

 

          The case was then brought to this Court for automatic review in view of the penalty of death imposed on accused-appellants. However, in accordance with the ruling in People v. Mateo,[17][17] and the amendments made to Sections 3 and 10 of Rule 122, Section 13 of Rule 124, and Section 3 of  Rule 125 of the Revised Rules on Criminal Procedure, the Court transferred this case to the CA for intermediate review.

 

          On December 15, 2005, the CA rendered its Decision, the dispositive portion of which reads as follows:

 

            WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court, Branch 38 of Lingayen, Pangasinan in Criminal Case No. U-8239, is hereby AFFIRMED with the MODIFICATION that accused-appellant Rodolfo Duzon is ACQUITTED  on reasonable doubt and his release is hereby ordered unless he is being held for some other legal cause.

            Further, in lieu of the awards made by the trial court in favor of the heirs of deceased Atty. Melvin Alipio, accused-appellants are ordered to pay, jointly and severally, the heirs of the victim the following amounts:  (1) P25,000.00 as temperate damages; (2) P75,000.00 as civil indemnity; (3) P50,000.00 as moral damages; and (4) P25,000.00 as exemplary damages;

 

            SO ORDERED.[18][18]

 

 

          The case is now before this Court on automatic review.  The prosecution opted not to file a supplemental brief with this Court.  Accused-appellants Lolito Aquino and Renato Ramos jointly filed their supplemental brief where it is argued that the two should be acquitted because (1) the prosecution evidence is insufficient to prove that Lolito Aquino was part of the conspiracy to kill Atty. Melvin Alipio; and (2) the identity of Renato Ramos was never established.  Accused-appellant Noberto (Jun) Adviento argued in his Appellant’s Brief filed with the CA, that the prosecution’s evidence is insufficient to establish conspiracy, and there are no aggravating circumstances to justify the imposition of the death penalty.

 

 

          The Court agrees with the CA’s conclusion that the evidence on record proves beyond reasonable doubt that accused-appellants Lolito Aquino, Renato Ramos, and Norberto (Jun) Adviento, together with Francisca Talaro, conspired to kill Atty. Melvin Alipio.

          Murder under Article 248 of the Revised Penal Code is defined as the unlawful killing of a person, which is not parricide or infanticide, attended by circumstances such as treachery or evident premeditation.  The presence of any one of the circumstances enumerated in Article 248 of the Code is sufficient to qualify a killing as murder.[19][19]

 

          In People v. Sanchez,[20][20] the Court held that “[t]he essence of treachery is the sudden attack by an aggressor without the slightest provocation on the part of the victim, depriving the latter of any real chance to defend himself, thereby ensuring the commission of the crime without risk to the aggressor.”  There can be no cavil that the evidence on record shows treachery in the killing of Atty. Alipio, thus qualifying the crime as murder.  The assailant, identified as accused-appellant Renato Ramos, just suddenly fired upon Atty. Alipio at a very close distance, without any provocation from said unarmed victim, who was then just conversing with some other people.

 

          There is also evident premeditation because the evidence shows that a couple of days before the actual shooting of Atty. Alipio, Raymundo Zamora already saw and heard accused-appellants Norberto (Jun) Adviento, Renato Ramos, and Lolito Aquino, talking to Francisca Talaro and coming to an agreement to kill Atty. Alipio.

 

          Pitted against the prosecution evidence, accused-appellants’ only defense is that the evidence is insufficient to prove they are part of the
conspiracy to commit the murder.  Said defense is sorely wanting when pitted against the prosecution evidence.

 

          In People v. Bautista,[21][21] the Court reiterated the hornbook principle of conspiracy, to wit:

 

            Conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.  Where all the accused acted in concert at the time of the commission of the offense, and it is shown by such acts that they had the same purpose or common design and were united in its execution, conspiracy is sufficiently established.  It must be shown that all participants performed specific acts which such closeness and coordination as to indicate a common purpose or design to commit the felony.

 

            x x x x

 

            Each conspirator is responsible for everything done by his confederates which follows incidentally in the execution of a common design as one of its probable and natural consequences even though it was not intended as part of the original design. x x x[22][22] (Emphasis supplied)

          In this case, the existence of a conspiracy has been established by the testimony of Raymundo Zamora, positively identifying all three accused-appellants as the ones he saw and heard transacting with Francisca Talaro on April 24, 1994 to kill Atty. Melvin Alipio for the price of P60,000.00, and pointing to Lolito Aquino as the one who demanded and received part of the payment after Atty. Alipio had been killed.  The credibility of Raymundo Zamora’s testimony is further bolstered by Lolito Aquino’s admission[23][23] that he and Renato Ramos even conducted surveillance on the victim a day before Renato Ramos carried out the shooting, and that the motorcycle used as a getaway vehicle belonged to him.  Rodolfo Duzon also pointed to Renato Ramos as the gunman; he also pointed to Renato Ramos and Norberto (Jun) Adviento as the ones who threatened to kill him if he talks to anyone about the shooting.  All the proven circumstances point to the conclusion that accused-appellants acted in concert to assure the success of the execution of the crime; hence, the existence of a conspiracy is firmly established.

 

          Lolito Aquino’s admission, and accused-appellants’ positive identification of Raymundo Zamora and Rodolfo Duzon cannot be belied by accused-appellants’ mere denial.   It is established jurisprudence that denial and alibi cannot prevail over the witness’ positive identification of the accused-appellants.[24][24]   Moreover, accused-appellants could not give any plausible reason why Raymundo Zamora would testify falsely against them.  In People v. Molina,[25][25] the Court expounded, thus:

 

                        In light of the positive identification of appellant by the prosecution witnesses and since no ill motive on their part or on that of their families was shown that could have made either of them institute the case against the appellant and falsely implicate him in a serious crime he did not commit, appellant’s defense of alibi must necessarily fail.  It is settled in this jurisdiction that the defense of alibi, being inherently weak, cannot prevail over the clear and positive identification of the accused as the perpetrator of the crime. x x x[26][26]  (Emphasis supplied)

 

            Accused-appellant Lolito Aquino claimed he merely admitted his participation in the crime out of fear of the police authorities who allegedly manhandled him, however, the trial court did not find his story convincing.  The trial court’s evaluation of the credibility of witnesses and their testimonies is conclusive on this Court as it is the trial court which had the opportunity to closely observe the demeanor of witnesses.[27][27]   The Court again explained the rationale for this principle in Molina,[28][28] to wit:

 

            As oft repeated by this Court, the trial court’s evaluation of the credibility of witnesses is viewed as correct and entitled to the highest respect because it is more competent to so conclude, having had the opportunity to observe the witnesses’ demeanor and deportment on the stand, and the manner in which they gave their testimonies. The trial judge therefore can better determine if such witnesses were telling the truth, being in the ideal position to weigh conflicting testimonies. Further, factual findings of the trial court as regards its assessment of the witnesses’ credibility are entitled to great weight and respect by this Court, particularly when the Court of Appeals affirms the said findings, and will not be disturbed absent any showing that the trial court overlooked certain facts and circumstances which could substantially affect the outcome of the case.[29][29]

 

The Court cannot find anything on record to justify deviation from said rule.

 

          Accused-appellant Renato Ramos insisted that he was not properly identified in open court, and considering that there are so many persons named “Renato Ramos,” then there can be some confusion regarding his identity.  There is no truth to this claim.  Ramos was properly identified in open court by Raymundo Zamora, as one of the men he saw and heard transacting with Francisca Talaro for the killing of Atty. Alipio.[30][30]  Hence, there can be no doubt as to which Renato Ramos is being convicted for the murder of Atty. Alipio.

 

          Another strong indication of Lolito Aquino’s and Renato Ramos’ guilt is the fact that they escaped from detention while the case was pending with the trial court.  Renato Ramos escaped from prison on December 20, 1994,[31][31]  while Lolito Aquino escaped on May 5, 1996.[32][32] It has been repeatedly held that flight betrays a desire to evade responsibility and is, therefore, a strong indication of guilt.[33][33]  Thus, this Court finds no reason to overturn their conviction.

 

          Nevertheless, this Court must modify the penalty imposed on accused-appellants Norberto (Jun) Adviento, Lolito Aquino, and Renato Ramos.   In People v. Tinsay,[34][34] the Court explained that:

          On June 30, 2006, Republic Act No. 9346 (R.A. 9346), entitled An Act Prohibiting the Imposition of Death Penalty in the Philippines, took effect. Pertinent provisions thereof provide as follows:

 

            Section 1.  The imposition of the penalty of death is hereby prohibited.  Accordingly, Republic Act No. Eight Thousand One Hundred Seventy-Seven (R.A. No. 8177), otherwise known as the Act Designating Death by Lethal Injection is hereby repealed.  Republic Act No. Seven Thousand Six Hundred Fifty-Nine (R.A. No. 7659) otherwise known as the Death Penalty Law and all other laws, executive orders and decrees insofar as they impose the death penalty are hereby repealed or amended accordingly.

 

            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

 

            x x x x

 

            SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103, otherwise known as the Indeterminate Sentence Law, as amended.

 

It has also been held in People vs. Quiachon that R.A. No. 9346 has retroactive effect, to wit:

 

            The aforequoted provision of R.A. No. 9346 is applicable in this case pursuant to the principle in criminal law, favorabilia sunt amplianda adiosa restrigenda.  Penal laws which are favorable to accused are given retroactive effect.  This principle is embodied under Article 22 of the Revised Penal Code, which provides as follows:

 

            Retroactive effect of penal laws. – Penal laws shall have a retroactive effect insofar as they favor the persons guilty of a felony, who is not a habitual criminal, as this term is defined in Rule 5 of Article 62 of this Code, although at the time of the publication of such laws, a final sentence has been pronounced and the convict is serving the same.

 

            However, appellant is not eligible for parole because Section 3 of R.A. No. 9346 provides that “persons convicted of offenses pushed with reclusion perpetua, or whose sentences will be reduced to reclusion perpetua by reason of the law, shall not be eligible for parole.”

 

 

            Hence, in accordance with the foregoing, appellant should only be sentenced to suffer reclusion perpetua without eligibility for parole.[35][35]

 

           

          The awards for damages also need to be modified.  In People v. Alberto Anticamara y Cabillo, et al.,[36][36] the Court held that in accordance with prevailing jurisprudence on heinous crimes where the imposable penalty is death but reduced to reclusion perpetua pursuant to R.A. No. 9346, the award of moral damages should be increased from P50,000.00 to P75,000.00, while the award for exemplary damages, in view of the presence of aggravating circumstances, should be P30,000.00.

 

          WHEREFORE, the Decision of the Court of Appeals dated December 15, 2005 in CA-G.R. CR-H.C. No. 00071 is hereby AFFIRMED with the MODIFICATION that the penalty of death imposed on accused-appellants is REDUCED to reclusion perpetua without possibility of parole in accordance with R.A. No. 9346; and INCREASING the award of moral damages from P50,000.00 to P75,000.00, and the award of exemplary damages from P25,000.00 to P30,000.00.  The rest of the award of the Court of Appeals is hereby maintained.

 

SO ORDERED.

 

 

 

DIOSDADO M. PERALTA

                                                                   Associate Justice

 

 

WE CONCUR:

 

 

 

RENATO C. CORONA

         Chief Justice

 

 

 

 

 

                                                                                           

          ANTONIO T. CARPIO                         PRESBITERO J. VELASCO, JR.

                 Associate Justice                                     Associate Justice

 

 

          TERESITA J. LEONARDO-DE CASTRO           ARTURO D. BRION

                            Associate Justice                                       Associate Justice

 

 

 

                                                                                                  On Leave

                    LUCAS P. BERSAMIN                            MARIANO C. DEL CASTILLO

                            Associate Justice                                       Associate Justice

 

 

 

 

                   ROBERTO A. ABAD                       MARTIN S. VILLARAMA, JR.

                         Associate Justice                                          Associate Justice

  

 

 

 

              JOSE PORTUGAL PEREZ                    JOSE CATRAL MENDOZA

                         Associate Justice                                        Associate Justice

 

 

 

MARIA LOURDES P. A. SERENO             BIENVENIDO L. REYES

                        Associate Justice                                      Associate Justice

 

 

 

 

ESTELA M. PERLAS-BERNABE

Associate Justice

 

 

 

 

 

 

CERTIFICATION

 

 

          Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.

 

 

 

 

 

                                                                   RENATO C. CORONA

                                                                             Chief Justice

 


 


*               In a Resolution dated July 10, 2001, the Court GRANTED accused-appellant Francisca Talaro’s Motion for Withdrawal of Appeal, so she can avail of executive clemency.  See CA rollo, p. 252.

**             Acquitted by the Regional Trial Court.

***            Acquitted by the Court of Appeals.

*               In a Resolution dated July 10, 2001, the Court GRANTED accused-appellant Francisca Talaro’s Motion for Withdrawal of Appeal, so she can avail of executive clemency.  See CA rollo, p. 252.

**             Acquitted by the Regional Trial Court.

***            Acquitted by the Court of Appeals.

****           On leave.

[1][1]           Penned by Associate Justice Rodrigo V. Cosico, with  Associate Justices Regalado E. Maambong and Lucenito N. Tagle, concurring; rollo, pp. 3-24.

[2][2]           Records, p. 4.

[3][3]           TSN, December 8, 1994.

[4][4]           Exhibit “K,” TSN taken on August 12, 1994, during the Preliminary Investigation, records, pp. 252-253.

[5][5]           TSN, March 20, 1995.

[6][6]           TSN, March 15, 1995.

[7][7]           Exhibit “M,” records, p. 254.

[8][8]           TSN, March 15, 1995.

[9][9]           See Prosecution’s Formal Offer of Evidence, records, p. 237.

[10][10]         TSN, December 8, 1994.

[11][11]         TSN,  April 3, 1995.

[12][12]         TSN, January 17, 1995.

[13][13]         TSN, April 18, 1995.

[14][14]         TSN, August 16, 1995.

[15][15]         TSN, November 8, 1995.

[16][16]         Records, p. 445.

[17][17]         G.R. Nos. 147678-87, July 7, 2004, 433 SCRA 640.

[18][18]         Rollo, p. 23.

[19][19]         People v. Sanchez, G.R. No. 188610, June 29, 2010, 622 SCRA 548, 559.

[20][20]         Id. at 560.

[21][21]         G.R. No. 188601, June 29, 2010, 622 SCRA 524.

[22][22]         Id. at 540-542.

[23][23]         Exhibit “K,” records, pp. 252-253.

[24][24]         Lumanog v. People, G.R. Nos. 182555, 185123 & 187745, September 7, 2010, 630 SCRA 42, 130.

[25][25]         G.R. No. 184173, March 13, 2009, 581 SCRA 519.

[26][26]         Id. at 538.

[27][27]         People v. Flores, G.R. No. 188315, August 25, 2010, 629 SCRA 478, 488.

[28][28]                         Supra note 25.

[29][29]         Id. at 535-536.

[30][30]         TSN, December 8, 1994, p. 7.

[31][31]         See Letter of Provincial Warden Pedro M. Belen dated May 22, 1996, records, p. 417

[32][32]         Id. at 415.

[33][33]         People v. Cenahonon, G.R. No. 169962, July 12, 2007, 527 SCRA 542, 558; People v. Lara, G.R. No. 171449, October 23, 2006, 505 SCRA 137, 152.

[34][34]         G.R. No. 167383, September 23, 2008, 566 SCRA 170.

[35][35]         Id. at 183-184. (Emphasis supplied; citations omitted)

[36][36]         G.R. No. 178771, June 8, 2011.

CASE 2012-0036: SPO2 LOLITO T. NACNAC VS. PEOPLE OF THE PHILIPPINES (G.R. NO. 191913, MARCH 21, 2012, VELASCO, JR., J.) SUBJECT/S: MOTION FOR RECON GRANTED BY SC; ELEMENTS OF SELF DEFENSE; (BRIEF TITLE: NACNAC VS. PEOPLE)

 

========================

 

DISPOSITIVE:

 

       

        WHEREFORE, petitioner’s Motion for Reconsideration is GRANTED. The CA Decision dated July 20, 2009 in CA-G.R. CR-H.C. No. 30907 is REVERSED and SET ASIDE.  Petitioner SPO2 Lolito T. Nacnac is ACQUITTED of homicide on reasonable doubt.

 

The Director of the Bureau of Prisons is ordered to immediately RELEASE petitioner from custody, unless he is being held for some other lawful cause, and to INFORM this Court within five (5) days from receipt of this Decision of the date petitioner was actually released from confinement.

 

         SO ORDERED.

 

 

=========================

 

 

SUBJECT/DOCTRINE/DIGEST:

 

 

WHAT ARE THE ELEMENTS OF SELF DEFENSE?

 

 

A)   UNLAWFUL AGGRESSION;

 

 

B)   REASONABLE NECESSITY OF THE MEANS EMPLOYED TO PREVENT OR REPEL IT;

 

 

C)   LACK OF SUFFICIENT PROVOCATION ON THE PART OF THE PERSON DEFENDING HIMSELF.

 

 

        The Revised Penal Code provides the requisites for a valid self-defense claim:

 

ART. 11. Justifying circumstances.––The following do not incur any criminal liability:

 

1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:

 

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself.

 

XXXXXXXXXXXXXXXXXX

 

 

WHEN IS THERE UNLAWFUL AGGRESSION?

 

 

IT WOULD “PRESUPPOSE AN ACTUAL, SUDDEN AND UNEXPECTED ATTACK OR IMMINENT DANGER ON THE LIFE AND LIMB OF A PERSON––NOT A MERE THREATENING OR INTIMIDATING ATTITUDE––BUT MOST IMPORTANTLY, AT THE TIME THE DEFENSIVE ACTION WAS TAKEN AGAINST THE AGGRESSOR. X X X THERE IS AGGRESSION IN CONTEMPLATION OF THE LAW ONLY WHEN THE ONE ATTACKED FACES REAL AND IMMEDIATE THREAT TO ONE’S LIFE. THE PERIL SOUGHT TO BE AVOIDED MUST BE IMMINENT AND ACTUAL, NOT JUST SPECULATIVE.”[1][11]

 

 

 

        Unlawful aggression is an indispensable element of self-defense. We explained, “Without unlawful aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot and will not be appreciated, even if the other elements are present.”[2][10] It would “presuppose an actual, sudden and unexpected attack or imminent danger on the life and limb of a person––not a mere threatening or intimidating attitude––but most importantly, at the time the defensive action was taken against the aggressor. x x x There is aggression in contemplation of the law only when the one attacked faces real and immediate threat to one’s life. The peril sought to be avoided must be imminent and actual, not just speculative.”[3][11]

 

        As We held:

 

Even the cocking of a rifle without aiming the firearm at any particular target is not sufficient to conclude that one’s life was in imminent danger. Hence, a threat, even if made with a weapon, or the belief that a person was about to be attacked, is not sufficient. It is necessary that the intent be ostensibly revealed by an act of aggression or by some external acts showing the commencement of actual and material unlawful aggression.[4][12]

XXXXXXXXXXXXXXXXXXXX

 

 

ACCORDING TO THE TRIAL COURT THE VICTIM ONLY DREW HIS GUN. THERE IS NO EVIDENCE THAT HE POINTED IT TO PETITIONER. THUS THERE WAS NO UNLAWFUL AGGRESSION. CA POINTED OUT THAT THE LIKELIHOOD THAT THE VICTIM WILL COMMIT UNLAWFUL AGGRESSION WAS VERY SLIM BECAUSE HE WAS VERY DRUNK. ARE THE TRIAL COURT AND CA CORRECT?

 

 

NO. THE FOLLOWING CIRCUMSTANCES NEGATE CONVICTION:

 

 

(1)            THE DRUNKEN STATE OF THE VICTIM;

 

 

(2)            THE VICTIM WAS ALSO A POLICE OFFICER WHO WAS PROFESSIONALLY TRAINED AT SHOOTING;

 

 

(3)            THE WARNING SHOT FIRED BY PETITIONER WAS IGNORED BY THE VICTIM;

 

 

(4)            A LAWFUL ORDER BY PETITIONER WAS IGNORED BY THE VICTIM; AND

 

 

(5)            THE VICTIM WAS KNOWN FOR HIS COMBATIVE AND DRUNKEN BEHAVIOR.

 

 

        According to the trial court, petitioner’s claim that the victim pointed his gun at petitioner was a mere afterthought. It ruled that petitioner’s sworn statement and direct testimony as well as the testimonies of SPO1 Eduardo Basilio and SPO2 Roosevelt Ballesteros only established that the victim drew his gun. The trial court went on to differentiate the act of drawing a gun and pointing it at a target. It held that the mere act of drawing a gun cannot be considered unlawful aggression. In denying petitioner’s motion for reconsideration, the CA affirmed the trial court’s findings and further held that petitioner had fuller control of his physical and mental faculties in view of the victim’s drunken state. It concluded that the likelihood of the victim committing unlawful aggression in “his inebriated state” was “very slim.”[5][14] 

 

        We disagree. The characterization as a mere afterthought of petitioner’s testimony on the presence of unlawful aggression is not supported by the records.

 

         The following circumstances negate a conviction for the killing of the victim:

(6)            The drunken state of the victim;

(7)            The victim was also a police officer who was professionally trained at shooting;

(8)            The warning shot fired by petitioner was ignored by the victim;

(9)            A lawful order by petitioner was ignored by the victim; and

(10)      The victim was known for his combative and drunken behavior.

 

        As testified by the victim’s companion, SPO1 Basilio, petitioner ordered him and the victim not to leave because they were on duty. SPO1 Basilio also confirmed that the victim was inebriated and had uttered invectives in response to petitioner’s lawful order.[6][15]

 

        Ordinarily, as pointed out by the lower court, there is a difference between the act of drawing one’s gun and the act of pointing one’s gun at a target. The former cannot be said to be unlawful aggression on the part of the victim. In People v. Borreros,[7][16] We ruled that “for unlawful aggression to be attendant, there must be a real danger to life or personal safety. Unlawful aggression requires an actual, sudden and unexpected attack, or imminent danger thereof, and not merely a threatening or intimidating attitude x x x. Here, the act of the [deceased] of allegedly drawing a gun from his waist cannot be categorized as unlawful aggression. Such act did not put in real peril the life or personal safety of appellant.”

 

        The facts surrounding the instant case must, however, be differentiated from current jurisprudence on unlawful aggression. The victim here was a trained police officer. He was inebriated and had disobeyed a lawful order in order to settle a score with someone using a police vehicle. A warning shot fired by a fellow police officer, his superior, was left unheeded as he reached for his own firearm and pointed it at petitioner. Petitioner was, therefore, justified in defending himself from an inebriated and disobedient colleague.  Even if We were to disbelieve the claim that the victim pointed his firearm at petitioner, there would still be a finding of unlawful aggression on the part of the victim. We quote with approval the OSG’s argument[8][17] on this point:

        A police officer is trained to shoot quickly and accurately. A police officer cannot earn his badge unless he can prove to his trainors that he can shoot out of the holster quickly and accurately x x x. Given this factual backdrop, there is reasonable basis to presume that the appellant indeed felt his life was actually threatened. Facing an armed police officer like himself, who at that time, was standing a mere five meters from the appellant, the [latter] knew that he has to be quick on the draw. It is worth emphasizing that the victim, being a policeman himself, is presumed to be quick in firing.

 

          Hence, it now becomes reasonably certain that in this specific case, it would have been fatal for the appellant to have waited for SPO1 Espejo to point his gun before the appellant fires back.

 

XXXXXXXXXXXXXXXXXXX

 

 

WAS THERE REASONABLE MEANS EMPLOYED?

 

 

YES. THERE WAS A LONE GUNSHOT WOUND.

 

 

        To successfully invoke self-defense, another requisite is that the means employed by the accused must be reasonably commensurate to the nature and the extent of the attack sought to be averted.[9][18]

 

        Supporting petitioner’s claim of self-defense is the lone gunshot wound suffered by the victim. The nature and number of wounds inflicted by the accused are constantly and unremittingly considered as important indicia.[10][19]  In People v. Catbagan,[11][20] We aptly held:

 

 

The means employed by the person invoking self-defense is reasonable if equivalent to the means of attack used by the original aggressor.Whether or not the means of self-defense is reasonable depends upon the nature or quality of the weapon, the physical condition, the character, the size and other circumstances of the aggressor; as well as those of the person who invokes self-defense; and also the place and the occasion of the assault.

 

 

        In the instant case, the lone wound inflicted on the victim supports the argument that petitioner feared for his life and only shot the victim to defend himself. The lone gunshot was a reasonable means chosen by petitioner in defending himself in view of the proximity of the armed victim, his drunken state, disobedience of an unlawful order, and failure to stand down despite a warning shot.

 

XXXXXXXXXXXXXXX

 

 

WAS THERE SUFFICIENT PROVOCATION ON THE PART OF PETITIONER?

 

 

NONE. PETITIONER MAY HAVE BARKED AT VICTIM BUT HE WAS GIVING A LAWFUL ORDER. PETITIONER FIRED HIS GUN BUT IT WAS A WARNING SHOT.

 

 

       

The last requisite for self-defense to be appreciated is lack of sufficient provocation on the part of the person defending himself or herself. As gleaned from the findings of the trial court, petitioner gave the victim a lawful order and fired a warning shot before shooting the armed and drunk victim. Absent from the shooting incident was any evidence on petitioner sufficiently provoking the victim prior to the shooting.

 

        All told, We are convinced that petitioner was only defending himself on the night he shot his fellow police officer.  The rule is that factual findings of the trial court and its evaluation of the credibility of witnesses and their testimonies are entitled to great respect and will not be disturbed on appeal.[12][21] This rule is binding except where the trial court has overlooked, misapprehended, or misapplied any fact or circumstance of weight and substance.[13][22] As earlier pointed out, the trial court did not consider certain facts and circumstances that materially affect the outcome of the instant case.  We must, therefore, acquit petitioner.

 

        Given the peculiar circumstances of this case, We find that the prosecution was unable to establish beyond reasonable doubt the guilt of petitioner. Even the OSG shares this view in its Comment appealing for his acquittal.

 

 

===========================

 

Republic of thePhilippines

SUPREME COURT

Manila

 

THIRD DIVISION

 

 

SPO2 LOLITO T. NACNAC,

                           Petitioner,

 

 

 

                   – versus –

 

 

 

PEOPLE OF THE PHILIPPINES,

                           Respondent.

 

 

  G.R. No. 191913

 

Present:

 

VELASCO, JR., J., Chairperson,

PERALTA,

ABAD,

MENDOZA, and

PERLAS-BERNABE, JJ.

 

Promulgated:

March 21, 2012

x—————————————————————————————–x

 

DECISION

 

VELASCO, JR., J.:

 

 

Every circumstance favoring the accused’s innocence must be duly taken into account. The proof against the accused must survive the test of reason. Strongest suspicion must not be permitted to sway judgment. The conscience must be satisfied that on the accused could be laid the responsibility for the offense charged. If the prosecution fails to discharge the burden, then it is not only the accused’s right to be freed; it is, even more, the court’s constitutional duty to acquit him.[14][1]

 

        This treats of the Motion for Reconsideration of Our Resolution dated August 25, 2010, affirming the July 20, 2009 Decision[15][2] of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 30907 entitled People of the Philippines v. SPO2 Lolito T. Nacnac. The CA affirmed the May 23, 2007 Judgment[16][3] in Criminal Case No. 10750-14 of the Regional Trial Court (RTC), Branch 14 in Laoag City, which convicted petitioner of homicide.

The Facts

 

An Information charged the accused as follows:

 

 

        That on or about February 20, 2003, in Dingras, Ilocos Norte, and within the jurisdiction of this Honorable Court, accused SPO2 Lolito I. Nacnac, a public officer, being then a member of the Philippine National Police, assigned with the Dingras Police Station, Dingras, Ilocos Norte, did then and there willfully, unlawfully and feloniously, with intent to kill, shoot one SPO1 Doddie Espejo with a gun resulting into the latter’s death.[17][4]

 

 

A reverse trial ensued upon the claim of self-defense by the accused. As summarized by CA,[18][5] the shooting incident happened as follows:

 

        The victim, SPO1 Doddie Espejo[,] had a history of violent aggression and drunkenness. He once attacked a former superior, P/Insp. Laurel Gayya, for no apparent reason. On the day of his death, he visited a cock house for merriment. He was shot by accused-appellant [petitioner] on February 20, 2003 at around 10:00 p.m. at the Dingras Police Station, Dingras, Ilocos Norte.

 

          On that fateful night of February 20, 2003, accused-appellant, the victim and a number of other police officers were on duty. Their shift started at 8:00 in the morning of the same day, to end at 8:00 the next morning. Accused-appellant, being the highest ranking officer during the shift, was designated the officer-of-the-day. Shortly before 10:00 in the evening, the victim, together with then SPO1 Eduardo Basilio, took the patrol tricycle from the station grounds. When accused-appellant saw this, he stopped the victim and his colleague from using the tricycle. The victim told accused-appellant that he (the victim) needed it to go toLaoagCityto settle a previous disagreement with a security of a local bar.

 

          Accused-appellant still refused. He told the victim that he is needed at the station and, at any rate, he should stay at the station because he was drunk. This was not received well by the victim. He told accused-appellant in Ilocano: “Iyot ni inam kapi” (Coitus of your mother, cousin!). The victim alighted from the tricycle. SPO1 Eduardo Basilio did the same, went inside the office, and left the accused-appellant and the victim alone. The victim took a few steps and drew his .45 caliber gun which was tucked in a holster on the right side of his chest. Accused-appellant then fired his M-16 armalite upward as a warning shot. Undaunted, the victim still drew his gun. Accused-appellant then shot the victim on the head, which caused the latter’s instantaneous death. Accused-appellant later surrendered to the station’s Chief of Police.

 

 

 

The RTC Ruling

 

        The RTC found the accused guilty of the crime charged. The RTC held that the claim of self-defense by the accused was unavailing due to the absence of unlawful aggression on the part of the victim. The dispositive portion of the RTC Judgment reads:

 

 

WHEREFORE, the accused SPO2 Lolito Nacnac is found GUILTY beyond reasonable doubt of the crime of homicide. Taking into account the mitigating circumstance of voluntary surrender, the Court hereby sentences him to an indeterminate penalty ranging from EIGHT YEARS of prision mayor as minimum to FOURTEEN YEARS of reclusion temporal as maximum. He is also ordered to pay the heirs of the deceased (1) P50,000.00 as indemnity for his death, (2) P100,000.00 as actual damages, (3) P50,000.00 as moral damages, and (4) P20,000.00 as attorney’s fees. Costs against the accused.[19][6]

 

 

The CA Ruling

 

        On appeal, the CA affirmed the findings of the RTC.  It held that the essential and primary element of unlawful aggression was lacking. It gave credence to the finding of the trial court that no one else saw the victim drawing his weapon and pointing it at accused Senior Police Officer 2 (SPO2) Lolito T. Nacnac.  The fallo of the CA Decision reads:

 

          WHEREFORE, the instant appeal is DISMISSED for lack of merit and the challenged Judgment dated May 23, 2007 in Criminal Case No. 10750-14 is AFFIRMED IN TOTO.[20][7]

 

 

        On August 25, 2010, this Court issued a Resolution, denying Nacnac’s petition for review for failure to sufficiently show that the CA committed any reversible error in the challenged decision and resolution as to warrant the exercise of this Court’s appellate jurisdiction.

 

        On October 11, 2010, petitioner filed a Motion for Reconsideration of this Court’s Resolution dated August 25, 2010.  On March 21, 2012, this Court granted the Motion and reinstated the petition. Petitioner raises the following issues:

 

1. [Whether the CA erroneously held that] the victim’s drawing of his handgun or pointing it at the petitioner is not sufficient to constitute unlawful aggression based on existing jurisprudence.

 

2. [Whether the CA incorrectly appreciated the photo] showing the victim holding his handgun in a peculiar manner despite the fact that no expert witness was presented to testify thereto x x x.

 

3. [Whether petitioner] has met the second and third requisites of self-defense x x x.[21][8]

 

        Petitioner argues that he did not receive a just and fair judgment based on the following: (1) the trial court did not resort to expert testimony and wrongly interpreted a photograph; (2) the trial court ignored the evidence proving unlawful aggression by the victim; (3) the trial court ignored the two gun reports and two empty shells found at the crime scene which support the claim that petitioner fired a warning shot; and (4) the trial court failed to appreciate petitioner’s act of self-defense.  Petitioner also claims that the CA gravely erred in not giving proper weight and due consideration to the Comment of the Office of the Solicitor General (OSG).

 

        In its Comment[22][9] dated April 27, 2011, the OSG avers that petitioner is entitled to an acquittal, or at the very least, not one but two mitigating circumstances.

 

Our Ruling

 

        We revisit Our ruling in the instant case.

 

        The Revised Penal Code provides the requisites for a valid self-defense claim:

 

ART. 11. Justifying circumstances.––The following do not incur any criminal liability:

 

1. Anyone who acts in defense of his person or rights, provided that the following circumstances concur:

 

First. Unlawful aggression;

Second. Reasonable necessity of the means employed to prevent or repel it;

Third. Lack of sufficient provocation on the part of the person defending himself.

 

 

Unlawful Aggression

 

        Unlawful aggression is an indispensable element of self-defense. We explained, “Without unlawful aggression, self-defense will not have a leg to stand on and this justifying circumstance cannot and will not be appreciated, even if the other elements are present.”[23][10] It would “presuppose an actual, sudden and unexpected attack or imminent danger on the life and limb of a person––not a mere threatening or intimidating attitude––but most importantly, at the time the defensive action was taken against the aggressor. x x x There is aggression in contemplation of the law only when the one attacked faces real and immediate threat to one’s life. The peril sought to be avoided must be imminent and actual, not just speculative.”[24][11]

 

        As We held:

 

Even the cocking of a rifle without aiming the firearm at any particular target is not sufficient to conclude that one’s life was in imminent danger. Hence, a threat, even if made with a weapon, or the belief that a person was about to be attacked, is not sufficient. It is necessary that the intent be ostensibly revealed by an act of aggression or by some external acts showing the commencement of actual and material unlawful aggression.[25][12]

 

        The following exchange showing actual and material unlawful aggression transpired during the examination of petitioner:[26][13]

 

Atty. Lazo:  At any rate, when you again prevented them from getting the tricycle telling them again that they should not get the tricycle, what happened next?

 

Accused: When police officer Basilio alighted from the tricycle SPO1 Espejo also alighted sir.

 

Q       What did Doddie Espejo do when he alighted from the tricycle?

 

A       I saw him hold his firearm tucked on his right waist. (witness demonstrating by placing his right hand at his right sideways). And he was left handed, sir.

 

Q       And what happened next?

 

A       When I saw him holding his firearm that was the time I fired a warning shot, sir.

 

Q       And when you fired [a] warning shot, what happened next?

 

A       He drew his firearm, sir.

 

Q       When he drew his firearm, what did you do?

 

A       When he drew his firearm I shot him [on] his head once, sir.

 

x x x x

Atty. Cajigal:

 

Q       By the way, what kind of firearm did the victim draw from his waist?

A       Cal. 45, sir.

Q       What firearm did you use in defending yourself?

 

A       M-16 armalite, sir.

 

x x x x

 

Q       Alright, you mean to tell the Honorable Court then that at the time that you pointed or squeezed the trigger of your gun the cal. 45 was already pointed at you?

A       Yes, sir.

 

Q       Did you ever observe if he squeezed the trigger but the gun [was] already pointed at you?

 

A       He just pointed his firearm at me, sir.

 

Q       Who first pointed his firearm, the victim pointed his firearm at you before you pointed your firearm at him?

 

A       The victim, sir.

 

Q       In short, it was the victim whose gun was first pointed at you?

A       Yes, sir.

 

Q       And that was the time when you raised your armalite and also pointed the same at him is that right?

 

A       Yes, that was the time that I shot him, sir. (Emphasis supplied.)

 

 

        According to the trial court, petitioner’s claim that the victim pointed his gun at petitioner was a mere afterthought. It ruled that petitioner’s sworn statement and direct testimony as well as the testimonies of SPO1 Eduardo Basilio and SPO2 Roosevelt Ballesteros only established that the victim drew his gun. The trial court went on to differentiate the act of drawing a gun and pointing it at a target. It held that the mere act of drawing a gun cannot be considered unlawful aggression. In denying petitioner’s motion for reconsideration, the CA affirmed the trial court’s findings and further held that petitioner had fuller control of his physical and mental faculties in view of the victim’s drunken state. It concluded that the likelihood of the victim committing unlawful aggression in “his inebriated state” was “very slim.”[27][14] 

 

        We disagree. The characterization as a mere afterthought of petitioner’s testimony on the presence of unlawful aggression is not supported by the records.

 

         The following circumstances negate a conviction for the killing of the victim:

(11)      The drunken state of the victim;

(12)      The victim was also a police officer who was professionally trained at shooting;

(13)      The warning shot fired by petitioner was ignored by the victim;

(14)      A lawful order by petitioner was ignored by the victim; and

(15)      The victim was known for his combative and drunken behavior.

 

        As testified by the victim’s companion, SPO1 Basilio, petitioner ordered him and the victim not to leave because they were on duty. SPO1 Basilio also confirmed that the victim was inebriated and had uttered invectives in response to petitioner’s lawful order.[28][15]

 

        Ordinarily, as pointed out by the lower court, there is a difference between the act of drawing one’s gun and the act of pointing one’s gun at a target. The former cannot be said to be unlawful aggression on the part of the victim. In People v. Borreros,[29][16] We ruled that “for unlawful aggression to be attendant, there must be a real danger to life or personal safety. Unlawful aggression requires an actual, sudden and unexpected attack, or imminent danger thereof, and not merely a threatening or intimidating attitude x x x. Here, the act of the [deceased] of allegedly drawing a gun from his waist cannot be categorized as unlawful aggression. Such act did not put in real peril the life or personal safety of appellant.”

 

        The facts surrounding the instant case must, however, be differentiated from current jurisprudence on unlawful aggression. The victim here was a trained police officer. He was inebriated and had disobeyed a lawful order in order to settle a score with someone using a police vehicle. A warning shot fired by a fellow police officer, his superior, was left unheeded as he reached for his own firearm and pointed it at petitioner. Petitioner was, therefore, justified in defending himself from an inebriated and disobedient colleague.  Even if We were to disbelieve the claim that the victim pointed his firearm at petitioner, there would still be a finding of unlawful aggression on the part of the victim. We quote with approval the OSG’s argument[30][17] on this point:

        A police officer is trained to shoot quickly and accurately. A police officer cannot earn his badge unless he can prove to his trainors that he can shoot out of the holster quickly and accurately x x x. Given this factual backdrop, there is reasonable basis to presume that the appellant indeed felt his life was actually threatened. Facing an armed police officer like himself, who at that time, was standing a mere five meters from the appellant, the [latter] knew that he has to be quick on the draw. It is worth emphasizing that the victim, being a policeman himself, is presumed to be quick in firing.

 

          Hence, it now becomes reasonably certain that in this specific case, it would have been fatal for the appellant to have waited for SPO1 Espejo to point his gun before the appellant fires back.

 

 

 

Reasonable Means Employed

 

        To successfully invoke self-defense, another requisite is that the means employed by the accused must be reasonably commensurate to the nature and the extent of the attack sought to be averted.[31][18]

 

        Supporting petitioner’s claim of self-defense is the lone gunshot wound suffered by the victim. The nature and number of wounds inflicted by the accused are constantly and unremittingly considered as important indicia.[32][19]  In People v. Catbagan,[33][20] We aptly held:

 

 

The means employed by the person invoking self-defense is reasonable if equivalent to the means of attack used by the original aggressor.Whether or not the means of self-defense is reasonable depends upon the nature or quality of the weapon, the physical condition, the character, the size and other circumstances of the aggressor; as well as those of the person who invokes self-defense; and also the place and the occasion of the assault.

 

 

        In the instant case, the lone wound inflicted on the victim supports the argument that petitioner feared for his life and only shot the victim to defend himself. The lone gunshot was a reasonable means chosen by petitioner in defending himself in view of the proximity of the armed victim, his drunken state, disobedience of an unlawful order, and failure to stand down despite a warning shot.

 

 

 

Lack of Sufficient Provocation

The last requisite for self-defense to be appreciated is lack of sufficient provocation on the part of the person defending himself or herself. As gleaned from the findings of the trial court, petitioner gave the victim a lawful order and fired a warning shot before shooting the armed and drunk victim. Absent from the shooting incident was any evidence on petitioner sufficiently provoking the victim prior to the shooting.

 

        All told, We are convinced that petitioner was only defending himself on the night he shot his fellow police officer.  The rule is that factual findings of the trial court and its evaluation of the credibility of witnesses and their testimonies are entitled to great respect and will not be disturbed on appeal.[34][21] This rule is binding except where the trial court has overlooked, misapprehended, or misapplied any fact or circumstance of weight and substance.[35][22] As earlier pointed out, the trial court did not consider certain facts and circumstances that materially affect the outcome of the instant case.  We must, therefore, acquit petitioner.

 

        Given the peculiar circumstances of this case, We find that the prosecution was unable to establish beyond reasonable doubt the guilt of petitioner. Even the OSG shares this view in its Comment appealing for his acquittal.

 

        WHEREFORE, petitioner’s Motion for Reconsideration is GRANTED. The CA Decision dated July 20, 2009 in CA-G.R. CR-H.C. No. 30907 is REVERSED and SET ASIDE.  Petitioner SPO2 Lolito T. Nacnac is ACQUITTED of homicide on reasonable doubt.

 

 

 

The Director of the Bureau of Prisons is ordered to immediately RELEASE petitioner from custody, unless he is being held for some other lawful cause, and to INFORM this Court within five (5) days from receipt of this Decision of the date petitioner was actually released from confinement.

 

         SO ORDERED.

 

 

 

PRESBITERO J. VELASCO, JR.

                                                             Associate Justice

 

 

WE CONCUR:

 

 

 

DIOSDADO M. PERALTA

Associate Justice

 

 

 

 

ROBERTO A. ABAD                                JOSE CATRAL MENDOZA

     Associate Justice                                                  Associate Justice

 

 

 

 

ESTELA M. PERLAS-BERNABE

Associate Justice

 

 

 

A T T E S T A T I O N

 

 

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

 

 

 

PRESBITERO J. VELASCO, JR.

       Associate Justice

          Chairperson

 

 

C E R T I F I C A T I O N

 

 

               Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

 

 

 

 

                                                                   RENATO C. CORONA

                                                                            Chief Justice

 


 


                [1][11] People v. Dagani, G.R. No. 153875, August 16, 2006, 499 SCRA 64, 74.

                [2][10] Palaganas v. People, G.R. No. 165483, September 12, 2006, 501 SCRA 533, 552.

                [3][11] People v. Dagani, G.R. No. 153875, August 16, 2006, 499 SCRA 64, 74.

                [4][12] People v. Rubiso, G.R. No. 128871, March 18, 2003, 399 SCRA 267, 273-274.

                [5][14]Id.at 63.

                [6][15]Id.at 132.

                [7][16] G.R. No. 125185, May 5, 1999, 306 SCRA 680, 690.

                [8][17] Rollo, p. 262.

                [9][18] People v. Escarlos, G.R. No. 148912, September 10, 2003, 410 SCRA 463, 479.

                [10][19] People v. Rabanal, G.R. No. 146687, August 22, 2002, 387 SCRA 685, 695.

                [11][20] G.R. Nos. 149430-32, February 23, 2004, 423 SCRA 535, 557-558.

                [12][21] People v. Jubail, G.R. No. 143718, May 19, 2004, 428 SCRA 478, 495.

                [13][22] People v. Lotoc, G.R. No. 132166, May 19, 1999, 307 SCRA 471, 480.

                [14][1] People v. Muleta, G.R. No. 130189, June 25, 1999, 309 SCRA 148, 175-176; citing People v. Mejia, G.R. Nos. 118940-41, July 7, 1997, 275 SCRA 127, 155. (Emphasis supplied.)

                [15][2] Penned by Associate Justice Ramon M. Bato, Jr. and concurred in by Presiding Justice Conrado M. Vasquez, Jr. and Associate Justice Arturo G. Tayag.

                [16][3] Penned by Presiding Judge Francisco R.D. Quilala.

[17][4] Rollo, p. 45.

                [18][5]Id.at 47.

[19][6]Id. at 192.

[20][7]Id. at 58.

[21][8]Id. at 20-21.

                [22][9] Id. at 322-332.

                [23][10] Palaganas v. People, G.R. No. 165483, September 12, 2006, 501 SCRA 533, 552.

                [24][11] People v. Dagani, G.R. No. 153875, August 16, 2006, 499 SCRA 64, 74.

                [25][12] People v. Rubiso, G.R. No. 128871, March 18, 2003, 399 SCRA 267, 273-274.

                [26][13] Rollo, pp. 143-145, 150.

                [27][14]Id.at 63.

                [28][15]Id.at 132.

                [29][16] G.R. No. 125185, May 5, 1999, 306 SCRA 680, 690.

                [30][17] Rollo, p. 262.

                [31][18] People v. Escarlos, G.R. No. 148912, September 10, 2003, 410 SCRA 463, 479.

                [32][19] People v. Rabanal, G.R. No. 146687, August 22, 2002, 387 SCRA 685, 695.

                [33][20] G.R. Nos. 149430-32, February 23, 2004, 423 SCRA 535, 557-558.

                [34][21] People v. Jubail, G.R. No. 143718, May 19, 2004, 428 SCRA 478, 495.

                [35][22] People v. Lotoc, G.R. No. 132166, May 19, 1999, 307 SCRA 471, 480.

CASE 2012-0035: AUSTRALIAN PROFESSIONAL REALTY, INC., JESUS GARCIA, and LYDIA MARCIANO VS. MUNICIPALITY OF PADRE GARCIA BATANGAS PROVINCE (G. R. No. 183367, March 14, 2012, SERENO, J.) SUBJECT/S: INJUNCTIVE RELIEFS; CLEAR LEGAL RIGHT; APPEAL UNDER RULE 45 VIS A VIS CERTIORARI UNDER RULE 65; GRAVE ABUSE OF DISCRETION; IRREPARABLE INJURY. (BRIEF TITLE: AUSTRALIAN PROFESSIONAL REALTY VS. MUN. OF PADRE GARCIA)

 

=================

 

DISPOSITIVE:

 

 

        WHEREFORE, the Petition is DENIED. The Court of Appeals Resolutions dated 26 March 2008 and 16 June 2008 in CA-G.R. SP No. 102540 are AFFIRMED. The Court of Appeals is directed to proceed with dispatch to dispose of the case before it.

 

 

SO ORDERED.

 

=================

 

 

SUBJECTS/DOCTRINES/DIGEST

 

 

WHAT IS AN INTERLOCUTORY ORDER?

 

 

AN INTERLOCUTORY ORDER IS ONE THAT DOES NOT DISPOSE OF THE CASE COMPLETELY BUT LEAVES SOMETHING TO BE DECIDED UPON.[1][8]

 

 

 

XXXXXXXXXXXXXXXXXX

 

 

CAN AN INTERLOCUTORY ORDER BE APPEALED? IF NOT, WHAT IS THE REMEDY?

 

 

NO. THE PROPER REMEDY IS TO FILE A PETITION FOR CERTIORARI AND/OR PROHIBITION UNDER RULE 65.[2][10]

 

 

XXXXXXXXXXXXXXXXXXXX

 

 

SUPPOSE  A PARTY ERRONEOUSLY APPEALED AN INTERTOCUTORY ORDER UNDER RULE 45? CAN THE SUPREME COURT CONSIDER THE APPEAL AS HAVING BEEN FILED UNDER RULE 65 (AS PETITION FOR CERTIORARI)?

 

 

YES. WHILE THE COURT MAY DISMISS A PETITION OUTRIGHT FOR BEING AN IMPROPER REMEDY, IT MAY IN CERTAIN INSTANCES PROCEED TO REVIEW THE SUBSTANCE OF THE PETITION UNDER RULE 65.[3][11]

       

 

        Under Section 1 (c) of Rule 41 of the Rules of Court, no appeal may be taken from an interlocutory order. An interlocutory order is one that does not dispose of the case completely but leaves something to be decided upon.[4][8] An order granting or denying an application for preliminary injunction is interlocutory in nature and, hence, not appealable.[5][9] Instead, the proper remedy is to file a Petition for Certiorari and/or Prohibition under Rule 65.[6][10]

        While the Court may dismiss a petition outright for being an improper remedy, it may in certain instances proceed to review the substance of the petition.[7][11] Thus, this Court will treat this Petition as if it were filed under Rule 65.

 

 

XXXXXXXXXXXXXX

 

 

WHAT IS THE NATURE OF PRELIM INJUNCTION AND A TRO?

 

 

THEY ARE INJUNCTIVE RELIEFS AND PRESERVATIVE REMEDIES FOR THE PROTECTION OF SUBSTANTIAL RIGHTS AND INTERESTS.

 

 

XXXXXXXXXXXXXXXXX

 

 

WHEN MAY THESE INJUNCTIVE RELIEFS  BE GRANTED?

 

 

UPON FILING OF A VERIFIED PETITION SHOWING FACTS ENTITLING THE APPLICANT TO THE RELIEF DEMANDED.

 

 

The writ of preliminary injunction and a TRO are injunctive reliefs and preservative remedies for the protection of substantive rights and interests.[8][12] An application for the issuance of a writ of preliminary injunction and/or TRO may be granted upon the filing of a verified application showing facts entitling the applicant to the relief demanded.

 

 

XXXXXXXXXXXXXX

 

 

 

 

WHAT IS ESSENTIAL TO THE GRANTING OF AN INJUNCTIVE RELIEF?

 

 

THE EXISTENCE OF AN URGENT NECESSITY FOR THE WRIT IN ORDER TO PREVENT SERIOUS DAMAGE.

IN THE CASE OF A TRO, IT IS ONLY ISSUED IF THE MATTER IS OF SUCH EXTREME URGENCY THAT GRAVE INJUSTICE AND IRREPARABLE INJURY WOULD ARISE UNLESS IT IS ISSUED IMMEDIATELY.[9][13]

 

 

Essential to granting the injunctive relief is the existence of an urgent necessity for the writ in order to prevent serious damage. A TRO issues only if the matter is of such extreme urgency that grave injustice and irreparable injury would arise unless it is issued immediately.[10][13] Under Section 5, Rule 58 of the Rule of Court,[11][14] a TRO may be issued only if it appears from the facts shown by affidavits or by the verified application that great or irreparable injury would be inflicted on the applicant before the writ of preliminary injunction could be heard.

 

 

XXXXXXXXXXXXX

 

 

TO BE ENTITLED TO INJUNCTIVE WRIT, WHAT MUST PETITIONERS SHOW?

 

THAT THAT (1) THERE EXISTS A CLEAR AND UNMISTAKABLE RIGHT TO BE PROTECTED; (2) THIS RIGHT IS DIRECTLY THREATENED BY AN ACT SOUGHT TO BE ENJOINED; (3) THE INVASION OF THE RIGHT IS MATERIAL AND SUBSTANTIAL; AND (4) THERE IS AN URGENT AND PARAMOUNT NECESSITY FOR THE WRIT TO PREVENT SERIOUS AND IRREPARABLE DAMAGE.[12][15]

 

 

Thus, to be entitled to the injunctive writ, petitioners must show that (1) there exists a clear and unmistakable right to be protected; (2) this right is directly threatened by an act sought to be enjoined; (3) the invasion of the right is material and substantial; and (4) there is an urgent and paramount necessity for the writ to prevent serious and irreparable damage.[13][15]

 

 

XXXXXXXXXXXXXXXX

 

 

CAN THIS EXERCISE OF JUDICIAL DISCRETION IN INJUNCTIVE MATTERS BE ENTERFERRED WITH?

 

 

NO, EXCEPT WHEN THERE IS GRAVE ABUSE OF DISCRETION.[14][17]

 

 

The grant or denial of a writ of preliminary injunction in a pending case rests on the sound discretion of the court taking cognizance of the case, since the assessment and evaluation of evidence towards that end involves findings of fact left to the said court for its conclusive determination.[15][16] Hence, the exercise of judicial discretion by a court in injunctive matters must not be interfered with, except when there is grave abuse of discretion.[16][17]

 

XXXXXXXXXXXXXX

 

 

 

WHEN IS THERE SUCH GRAVE ABUSE OF DISCRETION IN THE ISSUANCE OF WRITS OF PRELIMINARY INJUNCTION?

 

 

 

WHERE THERE IS A CAPRICIOUS AND WHIMSICAL EXERCISE OF JUDGMENT. OR  THE EXERCISE OF POWER IN AN ARBITRARY OR DESPOTIC MANNER BY REASON OF PASSION, PREJUDICE OR PERSONAL AVERSION AMOUNTING TO AN EVASION OF POSITIVE DUTY OR TO A VIRTUAL REFUSAL TO PERFORM THE DUTY ENJOINED OR TO ACT AT ALL IN CONTEMPLATION OF LAW.[17][18]

 

 

Grave abuse of discretion in the issuance of writs of preliminary injunction implies a capricious and whimsical exercise of judgment equivalent to lack of jurisdiction; or the exercise of power in an arbitrary or despotic manner by reason of passion, prejudice or personal aversion amounting to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.[18][18] The burden is thus on petitioner to show in his application that there is meritorious ground for the issuance of a TRO in his favor.[19][19]

 

 

XXXXXXXXXX

 

 

WHAT IS A CLEAR LEGAL RIGHT?

 

 

 

 

 

A CLEAR LEGAL RIGHT MEANS ONE CLEARLY FOUNDED IN OR GRANTED BY LAW OR IS ENFORCEABLE AS A MATTER OF LAW.[20][20]

 

 

XXXXXXXXXXXXX

 

 

SUPPOSE THERE IS NO CLEAR LEGAL RIGHT, CAN COURT ISSUE TRO?

 

 

NO. IF IT ISSUES TRO THEN SUCH CONSTITUTES GRAVE ABUSE OF DISCRETION.

 

 

XXXXXXXXXXXX

 

 

HOW ABOUT IF THERE IS STRONG POSSIBILITY OF DAMAGE?

 

 

TRO CANNOT BE ISSUED. THERE MUST BE PROOF OF AN ACTUAL EXISTING RIGHT.

 

 

A clear legal right means one clearly founded in or granted by law or is enforceable as a matter of law.[21][20] In the absence of a clear legal right, the issuance of the writ constitutes grave abuse of discretion.[22][21] The possibility of irreparable damage without proof of an actual existing right is not a ground for injunction.[23][22]

 

A perusal of the Motion for Injunction and its accompanying Affidavit filed before the CA shows that petitioners rely on their alleged right to the full and faithful execution of the MOA. However, while the enforcement of the Writ of Execution, which would nullify the implementation of the MOA, is manifestly prejudicial to petitioners’ interests, they have failed to establish in their Petition that they possess a clear legal right that merits the issuance of a writ of preliminary injunction. Their rights under the MOA have already been declared inferior or inexistent in relation to respondent in the RTC case, under a judgment that has become final and executory.[24][23] At the very least, their rights under the MOA are precisely disputed by respondent. Hence, there can be no “clear and unmistakable” right in favor of petitioners to warrant the issuance of a writ of injunction. Where the complainant’s right or title is doubtful or disputed, injunction is not proper.[25][24]

 

XXXXXXXXXXXXXXXXXX

 

 

CAN ONE GETS TRO TO STOP ENFORCEMENT OF JUDGMENT?

 

 

THE GENERAL RULE IS NO. BUT THERE ARE EXCEPTIONS: (1) WHEN FACTS AND CIRCUMSTANCES LATER TRANSPIRE THAT WOULD RENDER EXECUTION INEQUITABLE OR UNJUST; OR (2) WHEN THERE IS A CHANGE IN THE SITUATION OF THE PARTIES THAT MAY WARRANT AN INJUNCTIVE RELIEF.[26][26]

 

 

The general rule is that after a judgment has gained finality, it becomes the ministerial duty of the court to order its execution. No court should interfere, by injunction or otherwise, to restrain such execution.[27][25] The rule, however, admits of exceptions, such as the following: (1) when facts and circumstances later transpire that would render execution inequitable or unjust; or (2) when there is a change in the situation of the parties that may warrant an injunctive relief.[28][26] In this case, after the finality of the RTC Decision, there were no supervening events or changes in the situation of the parties that would entail the injunction of the Writ of Execution.

 

 

XXXXXXXXXXXXXXXX

 

 

 

WHEN IS DAMAGES IRREPARABLE?

 

 

WHEN THERE IS NO STANDARD BY WHICH THEIR AMOUNT CAN BE MEASURED WITH REASONABLE ACCURACY.[29][27] 

 

 

XXXXXXXXXXXXXXXX

 

 

PETITIONER ALLEGED THAT THE LOSS CONSISTS OF P30 MILLION IN INVESTMENTS, P100K MONTHLY REVENUE AND LOSS OF EMPLOYMENT AND POTENTIAL SUITS? DO THESE CONSTITUTE IRREPARABLE DAMAGE?

 

 

NO. THE ALLEGED LOSSES OF INVESTMENTS AND REVENUES  ARE SUBJECT TO MATHEMATICAL COMPUTATION. THE LOSS OF EMPLOYMENT AND POTENTIAL SUITS ARE SPECULATIVE. TRO CANNOT BE BASED ON SPECULATION.

 

 

 

 

Damages are irreparable where there is no standard by which their amount can be measured with reasonable accuracy.[30][27] In this case, petitioners have alleged that the loss of the public market entails costs of about ₱30,000,000 in investments, ₱100,000 monthly revenue in rentals, and amounts as yet unquantified – but not unquantifiable – in terms of the alleged loss of jobs of APRI’s employees and potential suits that may be filed by the leaseholders of the public market for breach of contract. Clearly, the injuries alleged by petitioners are capable of pecuniary estimation. Any loss petitioners may suffer is easily subject to mathematical computation and, if proven, is fully compensable by damages. Thus, a preliminary injunction is not warranted.[31][28] With respect to the allegations of loss of employment and potential suits, these are speculative at best, with no proof adduced to substantiate them.

 

        The foregoing considered, the CA did not commit grave abuse of discretion in denying the Motion for Injunction. In any case, petitioners may still seek recourse in their pending Petition before the Court of Appeals.

 

XXXXXXXXXXXXXXXXXXXXX

 

 

Republic of the Philippines
Supreme Court
Manila

 

SECOND DIVISION

 

 

AUSTRALIAN PROFESSIONAL REALTY, INC., JESUS GARCIA, and LYDIA MARCIANO,

                          Petitioners,

 

 

 

               – versus –

 

 

 

MUNICIPALITY OF PADRE GARCIA BATANGAS PROVINCE,

                          Respondent.           

 

G. R. No. 183367

 

 

Present:

 

CARPIO, J., Chairperson,

  BRION,

PEREZ,

SERENO, and

REYES, JJ.

 

 

Promulgated:

 

March 14, 2012

x – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – x

 

D E C I S I O N

 

SERENO, J.:

 

          This is a Petition for Review on Certiorari under Rule 45 of the Rules of  Court, seeking to annul the Court of Appeals (CA) Resolutions in CA-G.R. SP No. 102540 dated 26 March 2008[32][1] and 16 June 2008, which denied petitioners’ Motion for the issuance of a status quo order and Motion for issuance of a temporary restraining order (TRO) and/or writ of preliminary injunction.

 

Statement of the Facts and the Case

          In 1993, fire razed to the ground the old public market of respondentMunicipalityofPadre Garcia, Batangas. The municipal government, through its then Municipal Mayor Eugenio Gutierrez, invited petitioner Australian Professional Realty, Inc. (APRI) to rebuild the public market and construct a shopping center.

On 19 January 1995, a Memorandum of Agreement (MOA)[33][2] was executed between petitioner APRI and respondent, represented by Mayor Gutierrez and the members of the Sangguniang Bayan. Under the MOA, APRI undertook to construct a shopping complex in the 5,000-square-meter area. In return, APRI acquired the exclusive right to operate, manage, and lease stall spaces for a period of 25 years.

In May 1995, Victor Reyes was elected as municipal mayor of respondent. On 6 February 2003, respondent, through Mayor Reyes, initiated a Complaint for Declaration of Nullity of Memorandum of Agreement with Damages before the Regional Trial Court (RTC) of Rosario, Batangas, Fourth Judicial Region, Branch 87. The Complaint was docketed as Civil Case No. 03-004.

On 12 February 2003, the RTC issued summons to petitioners, requiring them to file their Answer to the Complaint. However, the summons was returned unserved, as petitioners were no longer holding office in the given address.

On 2 April 2003, a Motion for Leave of Court to Effect Service by Publication was filed by respondent before the RTC and subsequently granted by the trial court.

On 24 November 2003, the RTC issued an Order declaring petitioners in default and allowing respondent to present evidence ex parte.

On 6 October 2004, a Decision was rendered by the RTC, which, after narrating the testimonial evidence for respondent, stated:

After the completion of the testimony of Victor M. Reyes, counsel for the petitioner manifested that he will file the formal offer of evidence in writing.

On July 19, 2004, counsel for the petitioner filed before this Court his Formal Offer of Documentary Exhibits consisting of Exhibits “A” to “H”, inclusive of submarkings.

On August 18, 2004 an order was issued by the Court admitting all the exhibits formally offered by the petitioner thru counsel and this case was ordered submitted for resolution of the Court.

There is no opposition in the instant petition.

WHEREFORE, in view thereof, and finding the petition to be sufficient in form and substance, it being supported by sufficient evidence, judgement (sic) is hereby rendered in favor of the plaintiff as against the respondents as follows: 

(a)                The Memorandum of Agreement is hereby declared null and void for being contrary to law and public policy, particularly R.A. 6957 and R.A. 7718;

(b)               The respondents are hereby ordered to pay the amount of FIVE MILLION PESOS (₱5,000,000.00) in favor of the plaintiff for damages caused to the latter;

(c)                The structures found within the unfinishedPADREGARCIASHOPPING CENTERare hereby declared forfeited in favor of theMunicipalityofPadre Garcia.

SO ORDERED.[34][3]

 

There having been no timely appeal made, respondent filed a Motion for Execution of Judgment, which was granted by the RTC. A Writ of Execution was thus issued on 15 July 2005. 

After learning of the adverse judgment, petitioners filed a Petition for Relief from Judgment dated 18 July 2005. This Petition was denied by the RTC in an Order dated 15 June 2006. In another Order dated 14 February 2008, the trial court denied the Motion for Reconsideration.

Petitioners later filed before the CA a Petition for Certiorari and Prohibition dated 28 February 2008, docketed as CA-G.R. SP No. 102540. On 7 March 2008, petitioners filed before the CA a Motion for the Issuance of Status Quo Order and Motion for Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction.[35][4] The motion prayed for an order to restrain the RTC from “further proceeding and issuing any further Order, Resolution, Writ of Execution, and any other court processes”[36][5] in the case before it.

On 26 March 2008, the CA issued a Resolution denying the said motion, stating thus:

After a careful evaluation of petitioners’ Motion for Issuance of Status Quo Order and Motion for Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction, We find that the matter is not of extreme urgency and that there is no clear and irreparable injury that would be suffered by the petitioners if the prayer for the issuance of a Status Quo Order, Temporary Restraining Order (TRO) and/or Writ of Preliminary Injunction is not granted. In Ong Ching Kian Chuan v. Court of Appeals, it was held that, to be entitled to injunctive relief, the petitioner must show, inter alia, the existence of a clear and unmistakable right and an urgent and paramount necessity for the writ to prevent serious damage.

WHEREFORE, petitioners’ prayer for the issuance of a Status Quo Order, Temporary Restraining Order and/or Writ of Preliminary Injunction is hereby DENIED for lack of merit.[37][6]

On 17 June 2008, the CA denied the Motion for Reconsideration of the 26 March 2008 Resolution, stating that the mere preservation of the status quo is not sufficient to justify the issuance of an injunction.

On 8 July 2008, petitioners filed the instant Petition for Review on Certiorari dated 6 July 2008. 

          Petitioners claim that the amount of APRI’s investment in thePadreGarciaShopping Centeris estimated at ₱30,000,000, the entirety of which the RTC declared forfeited to respondent without just compensation. At the time of the filing of the Petition, APRI had 47 existing tenants and lessees and was deriving an average monthly rental income of ₱100,000. The Decision of the RTC was allegedly arrived at without first obtaining jurisdiction over the persons of petitioners. The execution of the allegedly void judgment of the RTC during the pendency of the Petition before the CA would probably work injustice to the applicant, as the execution would result in an arbitrary declaration of nullity of the MOA without due process of law.

          Petitioners further allege that respondent did not exercise reasonable diligence in inquiring into the former’s address in the case before the RTC. The Process Server Return, with respect to the unserved summons, did not indicate the impossibility of a service of summons within a reasonable time, the efforts exerted to locate APRI, or any inquiry as to the whereabouts of the said petitioner. 

          On 6 August 2008, this Court required respondent to file its Comment. On 13 February 2009, the Comment was filed, alleging among others that despite the RTC’s issuance of a Writ of Execution, respondent did not move to implement the said writ out of administrative comity and fair play. Even if the writ were implemented, petitioners failed to state in categorical terms the serious injury they would sustain.

          Respondent further argues that it is now in possession of the contracts that the lessees of the PadreGarciaShopping Centerexecuted with APRI. Thus, there are “actions [that militate] against the preservation of the present state of things,”[38][7] as sought to be achieved with the issuance of a status quo order.

          On 2 June 2009, petitioners filed their Reply to respondent’s Comment.

          On 3 March 2010, this Court issued a Resolution requiring the parties to inform the Court of the present status of CA-G.R. SP No. 102540. On 15 April 2010, respondent manifested that after the parties filed their respective Memoranda, the CA considered the case submitted for decision. On 12 May 2010, petitioners filed their Compliance, stating that the appellate court, per its Resolution dated 7 August 2008, held in abeyance the resolution of CA-G.R. SP No. 102540, pending resolution of the instant Petition.

The Court’s Ruling

          The Petition is denied for failure to show any grave abuse of discretion on the part of the CA.

Procedural Issue: Propriety of a Petition for Review under Rule 45

          Before proceeding to the substantive issues raised, we note that petitioners resorted to an improper remedy before this Court. They filed a Petition for Review on Certiorari under Rule 45 of the Rules of Court to question the denial of their Motion for the issuance of an injunctive relief.

          Under Section 1 (c) of Rule 41 of the Rules of Court, no appeal may be taken from an interlocutory order. An interlocutory order is one that does not dispose of the case completely but leaves something to be decided upon.[39][8] An order granting or denying an application for preliminary injunction is interlocutory in nature and, hence, not appealable.[40][9] Instead, the proper remedy is to file a Petition for Certiorari and/or Prohibition under Rule 65.[41][10]

          While the Court may dismiss a petition outright for being an improper remedy, it may in certain instances proceed to review the substance of the petition.[42][11] Thus, this Court will treat this Petition as if it were filed under Rule 65.

Substantive Issue: Grave abuse of discretion on the part of the CA

          The issue that must be resolved by this Court is whether the CA committed grave abuse of discretion in denying petitioners’ Motion for the Issuance of Status Quo Order and Motion for Issuance of Temporary Restraining Order and/or Writ of Preliminary Injunction (Motion for Injunction).

A writ of preliminary injunction and a TRO are injunctive reliefs and preservative remedies for the protection of substantive rights and interests.[43][12] An application for the issuance of a writ of preliminary injunction and/or TRO may be granted upon the filing of a verified application showing facts entitling the applicant to the relief demanded.

Essential to granting the injunctive relief is the existence of an urgent necessity for the writ in order to prevent serious damage. A TRO issues only if the matter is of such extreme urgency that grave injustice and irreparable injury would arise unless it is issued immediately.[44][13] Under Section 5, Rule 58 of the Rule of Court,[45][14] a TRO may be issued only if it appears from the facts shown by affidavits or by the verified application that great or irreparable injury would be inflicted on the applicant before the writ of preliminary injunction could be heard.

Thus, to be entitled to the injunctive writ, petitioners must show that (1) there exists a clear and unmistakable right to be protected; (2) this right is directly threatened by an act sought to be enjoined; (3) the invasion of the right is material and substantial; and (4) there is an urgent and paramount necessity for the writ to prevent serious and irreparable damage.[46][15]

The grant or denial of a writ of preliminary injunction in a pending case rests on the sound discretion of the court taking cognizance of the case, since the assessment and evaluation of evidence towards that end involves findings of fact left to the said court for its conclusive determination.[47][16] Hence, the exercise of judicial discretion by a court in injunctive matters must not be interfered with, except when there is grave abuse of discretion.[48][17]

Grave abuse of discretion in the issuance of writs of preliminary injunction implies a capricious and whimsical exercise of judgment equivalent to lack of jurisdiction; or the exercise of power in an arbitrary or despotic manner by reason of passion, prejudice or personal aversion amounting to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.[49][18] The burden is thus on petitioner to show in his application that there is meritorious ground for the issuance of a TRO in his favor.[50][19]

In this case, no grave abuse of discretion can be imputed to the CA. It did not exercise judgment in a capricious and whimsical manner or exercise power in an arbitrary or despotic manner.

 

 

No clear legal right

A clear legal right means one clearly founded in or granted by law or is enforceable as a matter of law.[51][20] In the absence of a clear legal right, the issuance of the writ constitutes grave abuse of discretion.[52][21] The possibility of irreparable damage without proof of an actual existing right is not a ground for injunction.[53][22]

A perusal of the Motion for Injunction and its accompanying Affidavit filed before the CA shows that petitioners rely on their alleged right to the full and faithful execution of the MOA. However, while the enforcement of the Writ of Execution, which would nullify the implementation of the MOA, is manifestly prejudicial to petitioners’ interests, they have failed to establish in their Petition that they possess a clear legal right that merits the issuance of a writ of preliminary injunction. Their rights under the MOA have already been declared inferior or inexistent in relation to respondent in the RTC case, under a judgment that has become final and executory.[54][23] At the very least, their rights under the MOA are precisely disputed by respondent. Hence, there can be no “clear and unmistakable” right in favor of petitioners to warrant the issuance of a writ of injunction. Where the complainant’s right or title is doubtful or disputed, injunction is not proper.[55][24]

The general rule is that after a judgment has gained finality, it becomes the ministerial duty of the court to order its execution. No court should interfere, by injunction or otherwise, to restrain such execution.[56][25] The rule, however, admits of exceptions, such as the following: (1) when facts and circumstances later transpire that would render execution inequitable or unjust; or (2) when there is a change in the situation of the parties that may warrant an injunctive relief.[57][26] In this case, after the finality of the RTC Decision, there were no supervening events or changes in the situation of the parties that would entail the injunction of the Writ of Execution.

No irreparable injury

Damages are irreparable where there is no standard by which their amount can be measured with reasonable accuracy.[58][27] In this case, petitioners have alleged that the loss of the public market entails costs of about ₱30,000,000 in investments, ₱100,000 monthly revenue in rentals, and amounts as yet unquantified – but not unquantifiable – in terms of the alleged loss of jobs of APRI’s employees and potential suits that may be filed by the leaseholders of the public market for breach of contract. Clearly, the injuries alleged by petitioners are capable of pecuniary estimation. Any loss petitioners may suffer is easily subject to mathematical computation and, if proven, is fully compensable by damages. Thus, a preliminary injunction is not warranted.[59][28] With respect to the allegations of loss of employment and potential suits, these are speculative at best, with no proof adduced to substantiate them.

The foregoing considered, the CA did not commit grave abuse of discretion in denying the Motion for Injunction. In any case, petitioners may still seek recourse in their pending Petition before the Court of Appeals.

          WHEREFORE, the Petition is DENIED. The Court of Appeals Resolutions dated 26 March 2008 and 16 June 2008 in CA-G.R. SP No. 102540 are AFFIRMED. The Court of Appeals is directed to proceed with dispatch to dispose of the case before it.

 

 

SO ORDERED.

 

 

MARIA LOURDES P. A. SERENO

Associate Justice

 

WE CONCUR:

 

 

 

ANTONIO T. CARPIO

Associate Justice

Chairperson

 

 

 

    ARTURO D. BRION                                   JOSE PORTUGAL PEREZ                    

         Associate Justice                                                   Associate Justice

 

 

 

BIENVENIDO L. REYES

Associate Justice

 

 

 

 

A T T E S T A T I O N

 

          I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

 

 

                                                              ANTONIO T. CARPIO

                                                                   Associate Justice

                                                          Chairperson, Second Division

 

 

C E R T I F I C A T I O N

 

          Pursuant to Section 13, Article VIII of the Constitution and the Division Chairperson’s Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

 

 

RENATO C. CORONA

                                                                            Chief Justice

 

 

 


 

 


[1][8] Denso (Phils.) Inc. v. Intermediate Appellate Court, 232 Phil. 256 (1987).

[2][10]Id.  

[3][11] Ortega v. Social Security Commission, G.R. No. 176150, 25 June 2008, 555 SCRA 353.

[4][8] Denso (Phils.) Inc. v. Intermediate Appellate Court, 232 Phil. 256 (1987).

[5][9] City of Naga v. Asuncion, G.R. No. 174042, 9 July 2008, 557 SCRA 528; Tambaoan v. Court of Appeals, 417 Phil. 683 (2001).

[6][10]Id.  

[7][11] Ortega v. Social Security Commission, G.R. No. 176150, 25 June 2008, 555 SCRA 353.

[8][12] Brizuela v. Dingle, G.R. No. 175371, 30 April 2008, 553 SCRA 662, citing Philippine National Bank v. Court of Appeals, 353 Phil. 473, 479 (1998).

[9][13] Id., citing Abundo v. Manio, Jr., 370 Phil. 850, 869 (1999).

[10][13] Id., citing Abundo v. Manio, Jr., 370 Phil. 850, 869 (1999).

[11][14] Section 5 provides:

Sec. 5. Preliminary injunction not granted without notice; exception. — No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided x x x

[12][15] Medina v. City Sheriff of Manila, 342 Phil. 90 (1997).

[13][15] Medina v. City Sheriff of Manila, 342 Phil. 90 (1997).

[14][17]Id.

[15][16] Barbieto v. Court of Appeals, G.R. No. 184645, 30 October 2009, 604 SCRA 825.

[16][17]Id.

[17][18] Overseas Workers Welfare Administration v. Chavez, G.R. No. 169802, 8 June 2007, 524 SCRA 451.

[18][18] Overseas Workers Welfare Administration v. Chavez, G.R. No. 169802, 8 June 2007, 524 SCRA 451.

[19][19] Brizuela v. Dingle, supra note 11.

[20][20] Soriano v. People, G.R. No. 162336, 1 February 2010, 611 SCRA 191.

[21][20] Soriano v. People, G.R. No. 162336, 1 February 2010, 611 SCRA 191.

[22][21]Id.

[23][22]Id.

[24][23] See Medina v. City Sheriff, Manila, supra note 15.

[25][24] Ocampo v. Sison vda. de Fernandez, G.R. No. 164529, 19 June 2007, 525 SCRA 79.

[26][26]Id.

[27][25] Bachrach Corporation v. Court of Appeals, 357 Phil. 483 (1998).

[28][26]Id.

[29][27] Social Security Commission v. Bayona, 115 Phil. 105 (1962).

[30][27] Social Security Commission v. Bayona, 115 Phil. 105 (1962).

[31][28] Power Sites and Signs, Inc. v. United Neon, G.R. No. 163406, 24 November 2009, 605 SCRA 196. 

[32][1] Penned by Associate Justice Sesinando E. Villon and concurred in by Associate Justices Remedios A. Salazar-Fernando and Rosalinda Asuncion-Vicente.

[33][2] Rollo, pp. 61-65.

[34][3] Rollo, pp. 58-59.

[35][4] Rollo, pp. 15-24.

[36][5]Id. at 15.

[37][6] Rollo, p. 26.

[38][7]  Id. at 144.

[39][8] Denso (Phils.) Inc. v. Intermediate Appellate Court, 232 Phil. 256 (1987).

[40][9] City of Naga v. Asuncion, G.R. No. 174042, 9 July 2008, 557 SCRA 528; Tambaoan v. Court of Appeals, 417 Phil. 683 (2001).

[41][10]Id.  

[42][11] Ortega v. Social Security Commission, G.R. No. 176150, 25 June 2008, 555 SCRA 353.

[43][12] Brizuela v. Dingle, G.R. No. 175371, 30 April 2008, 553 SCRA 662, citing Philippine National Bank v. Court of Appeals, 353 Phil. 473, 479 (1998).

[44][13] Id., citing Abundo v. Manio, Jr., 370 Phil. 850, 869 (1999).

[45][14] Section 5 provides:

Sec. 5. Preliminary injunction not granted without notice; exception. — No preliminary injunction shall be granted without hearing and prior notice to the party or person sought to be enjoined. If it shall appear from facts shown by affidavits or by the verified application that great or irreparable injury would result to the applicant before the matter can be heard on notice, the court to which the application for preliminary injunction was made, may issue ex parte a temporary restraining order to be effective only for a period of twenty (20) days from service on the party or person sought to be enjoined, except as herein provided x x x

[46][15] Medina v. City Sheriff of Manila, 342 Phil. 90 (1997).

[47][16] Barbieto v. Court of Appeals, G.R. No. 184645, 30 October 2009, 604 SCRA 825.

[48][17]Id.

[49][18] Overseas Workers Welfare Administration v. Chavez, G.R. No. 169802, 8 June 2007, 524 SCRA 451.

[50][19] Brizuela v. Dingle, supra note 11.

[51][20] Soriano v. People, G.R. No. 162336, 1 February 2010, 611 SCRA 191.

[52][21]Id.

[53][22]Id.

[54][23] See Medina v. City Sheriff, Manila, supra note 15.

[55][24] Ocampo v. Sison vda. de Fernandez, G.R. No. 164529, 19 June 2007, 525 SCRA 79.

[56][25] Bachrach Corporation v. Court of Appeals, 357 Phil. 483 (1998).

[57][26]Id.

[58][27] Social Security Commission v. Bayona, 115 Phil. 105 (1962).

[59][28] Power Sites and Signs, Inc. v. United Neon, G.R. No. 163406, 24 November 2009, 605 SCRA 196.