J.A.B. Bulao & Associates

LEGAL NOTE 0042: HOW TO PROVE ACTUAL DAMAGES.

SOURCE: OCEANEERING CONTRACTORS (PHILS), INC.  VS. NESTOR N. BARRETTO, DOING BUSINESS AS N.N.B. LIGHTERAGE (G.R. NO. 184215, 9 FEBRUARY 2011, PEREZ, J.) SUBJECTS: MARITIME CASE; NEGLIGENCE OF COMMON CARRIER; COMPENSATORY DAMAGES DEPENDS ON PLEADING AND PROOF; ATTORNEYS FEES NOT AUTOMATIC FOR WINNING CASES. (BRIEF TITLE: OCEANEERING CONTRACTORS VS. BARRETO).

HOW DO YOUR PROVE ACTUAL DAMAGES?

BY PLEADING AND PROOF OF ACTUAL DAMAGES SUFFERED.

Conformably with the foregoing provision, the rule is long and well settled that there must be pleading and proof of actual damages suffered for the same to be recovered.^[43]  

WHAT ARE THE ELEMENTS OF THE LOSS YOU HAVE TO PROVE?

 THERE ARE TWO ELEMENTS:

 1.THE AMOUNT OF LOSS MUST BE CAPABLE OF PROOF;

2. IT MUST BE ACTUALLY PROVEN WITH REASONABLE DEGREE OF CERTAINTY BY MEANS OF COMPETENT PROOF OR BEST EVIDENCE AVAILABLE.

 In addition to the fact that the amount of loss must be capable of proof, it must also be actually proven with a reasonable degree of certainty, premised upon competent proof or the best evidence obtainable.^[44]  

WHO HAS THE BURDEN OF PROOF OF DAMAGE SUFFERED?

 THE PARTY CLAIMING THE SAME.

 The burden of proof of the damage suffered is, consequently, imposed on the party claiming the same^[45] who should adduce the best evidence available in support thereof, like sales and delivery receipts, cash and check vouchers and other pieces of documentary evidence of the same nature. 

HOW ABOUT SELF-SERVING STATEMENTS OF ACCOUNT, ARE THESE SUFFICIENT PROOF.

 NO. THERE MUST BE CORROBORATIVE EVIDENCE.

 In the absence of corroborative evidence, it has been held that self-serving statements of account are not sufficient basis for an award of actual damages.^[46] 

IF COURT AWARDS ACTUAL DAMAGES, WHAT MUST IT STATE?

 IT MUST STATE THE FACTUAL BASES BECAUSE ACTUAL DAMAGES CANNOT BE PREDICATED ON FLIMSY, REMOTE, SPECULATIVE AND INSUBSTANTIAL CASE.

Corollary to the principle that a claim for actual damages cannot be predicated on flimsy, remote, speculative, and insubstantial proof,^[47] courts are, likewise, required to state the factual bases of the award.^[48]

APPLIED TO THE CASE ABOVE, HOW DID THE COURT ARRIVED AT THE AWARD FOR ACTUAL DAMAGES?

Applying the just discussed principles to the case at bench, we find that Oceaneering correctly fault the CA for not granting its claim for actual damages or, more specifically, the portions thereof which were duly pleaded and adequately proved before the RTC.  While concededly not included in the demand letters dated 12 March 1998^[49] and 13 July 1998^[50] Oceaneering served Barretto, the former’s counterclaims for the value of its lost cargo in the sum of P4,055,700.00 and salvaging expenses in the sum of P125,000.00 were distinctly pleaded and prayed for in the 26 January 1999 answer it filed a quo.^[51]  Rather than the entireP4,055,700.00 worth of construction materials reflected in the inventory^[52] which Engr. Oracion claims to have prepared on 29 November 1997, based on the delivery and official receipts from Oceaneering’s suppliers,^[53] we are, however, inclined to grant only the following items which were duly proved by the vouchers and receipts on record, viz.:  (a) P1,720,850.00 worth of spiral welded pipes with coal tar epoxy procured on 22 November 1997;^[54] (b) P629,640.00 worth of spiral welded steel pipes procured on 28 October 1997;^[55] (c) P155,500.00 worth of various stainless steel materials procured on 27 November 1997;^[56]  (d)P66,750.00 worth of gaskets and shackles procured on 20 November 1997;^[57] and, (e) P4,880.00 worth of anchor bolt procured on 27 November 1997.^[58]

          The foregoing sums all add up to of P2,577,620.00 from which should be deducted the sum of P351,000.00 representing the value of the nine steel pipes salvaged by Oceaneering, or a total of  P2,226,620.00 in actual damages representing the value of the latter’s lost cargo.  Excluded from the computation are the following items which, on account of the dates of their procurement, could not have possibly been included in the 29 November 1997 inventory prepared by Engr. Oracion, to wit: (a) P1,129,640.00 worth of WO#1995 and PO#OCPI-060-97 procured on 9 December 1997;^[59] and, (b) P128,000.00 worth of bollard procured on 16 December 1997.^[60]  Likewise excluded are the anchor bolt with nut Oceaneering claims to have procured for an unspecified amount on 3 November 1997^[61] and the P109,018.50 worth of Petron oil it procured on 28 November 1997^[62] which does not fit into the categories of lost cargo and/or salvaging expenses for which it interposed counterclaims a quo.  Although included in its demand letters as aforesaid and pleaded in its answer, Oceaneering’s claim for salvaging expenses in the sum of P125,000.00 cannot, likewise, be granted for lack of credible evidence to support the same.

^[1]               CA rollo, CV No. 87168, pp. 165-183.

^[2]               Id. at 183.

^[3]               Exhibit “A,” Records, Civil Case No. 87168, p. 199.

^[4]               Exhibit “C”, id. at 201.

^[5]               Exhibit “2”, id. at 448.

^[6]               Exhibits “E” to “E-2”, id. at 203-205.

^[7]               TSN, 20 April 2001, pp. 5-6.

^[8]               Records, pp. 204-205.

^[9]               TSN, 27 March 2003, pp. 18-24.

^[10]             Id. at 19-20.

^[11]             Exhibit “3,” Records, Civil Case No. 87168, p. 449.

^[12]             Exhibit “F”, id. at 206.

^[13]             Exhibit “21”, id. at 465.

^[14]             Exhibit “23”, id. at 468-469.

^[15]             Exhibit “22”, id. at 466-467.

^[16]             Exhibit “M”, id. at 215.

^[17]             Exhibit “25”, id. at 471.

^[18]             Id. at 1-26.

^[19]             Id. at 51-59.

^[20]             Id. at 104.

^[21]             TSN, 10 December 1999; 12 January, 2001; 4 April 2000; 1 September 2000.

^[22]             TSN, 8 December 2000.

^[23]             TSN, 20 April 2001.

^[24]             TSN, 24 October 2002; 27 March 2003; 8 May 2003.

^[25]             TSN, 15 May 2003.

^[26]             TSN, 3 July 2003.

^[27]             TSN, 14 August 2003.

^[28]             TSN, 28 August 2003.

^[29]             TSN, 4 December 2003.

^[30]             Records, Civil Case No. 87168, pp. 195-217; 434-506; 539-543.

^[31]             Id. at 229; 512; 553; 560-561.

^[32]             Id. at 635-663.

^[33]             Id. at 668-679.

^[34]             Id. at 686-689.

^[35]             CA rollo, CV No.  87168, pp. 40-82.

^[36]             Id. at 165-183.

^[37]             Id. at 185-203.

^[38]             Id. at 227-230.

^[39]             Rollo, p. 18.

^[40]             Empire East Land Holdings, Inc. vs. Capitol Industrial Construction Groups, Inc., 566 SCRA 473, 485.

^[41]             Spouses Ong vs. Court of Appeals, 361 Phil. 338, 353 (1999).

^[42]             Filipinas (Pre-Fab Bldg.) Systems, Inc. vs. MRT Development Corporation, G.R. No. 167829-30, 13 November 2007, 537 SCRA 609, 640, citing Development Bank of the Philippines v. Court of Appeals, G.R. No. 11053, 16 October 1996, 249 SCRA 331.

^[43]             Canada vs. All Commodities Marketing Corporation, G.R. No. 146141, 17 October 2008, 569 SCRA 321, 329.

^[44]             Manila Electric Corporation vs. T.E.A.M. Electronics Corporation, G.R. No. 131723, 13 December 2007, 540 SCRA 62, 79.

^[45]             Luxuria Homes, Inc. vs. Court of Appeals, 361 Phil. 989, 1001-1002, (1999).

^[46]             MCC Industrial Sales Corporation vs. Ssangayong Corporation, G.R. No. 153051, 18 October 2007, 536 SCRA 408, 467-468.

^[47]             Hanjin Heavy Industries and Construction Co., Ltd. v. Dynamic Planners and Construction Corp., G.R. Nos. 169408 & 170144, 30 April 2008, 553 SCRA 541, 567 .

^[48]             Santiago vs. Court of Appeals, G.R. No. 127440, 26 January 2007, 513 SCRA 69, 86.

^[49]             Exhibit “23”, Records, Civil Case No. 87168, pp. 468-469.

^[50]             Exhibit “25”, id. at 471.

^[51]             Id. at 56-57.

^[52]             Exhibit “5”, id. at 451.

^[53]             TSN, 27 March 2003, pp. 7-8.

^[54]             Exhibits “5” and “6”, Records, Civil Case No. 87168, pp. 451-452.

^[55]             Exhibit “10”, id. at 454.

^[56]             Exhibits “11” and “12”, id. at 455-456.

^[57]             Exhibit “15”, id. at 458.

^[58]             Exhibits “16” and “17”, id. at 459.

^[59]             Exhibits “8” and “9”, id. at 453.

^[60]             Exhibits “13” and “14”, id. at 457, Exhibit “27”; id. at 472.

^[61]             Exhibit “28”, id. at 473.

^[62]             Exhibit “29” and submarkings, id. at 474-475.

^[63]             Exhibit “25”, id. at 471.

^[64]             Philippine Airlines vs. Court of Appeals, G.R. No. L-46558, 31 July 1981, 106 SCRA, 391, 412.

^[65]             G.R. No. 97412, 12 July 1994, 234 SCRA 78, 96-97.

^[66]             Scott Consultants & Resource Development Corporation, Inc. vs. CA, 312 Phil. 466, 480 (1995).

^[67]             Philippine National Bank vs. Court of Appeals, 326 Phil. 504, 518-519 (1996).

^[68]             Philippine Phosphate Fertilizer Corporation vs. Kamalig Resources, Inc., G.R. No. 165608, 13 December 2007, 540 SCRA 139, 159.    

^[69]             Frias vs. San Diego-Sison, G.R. No. 155223, 3 April 2007, 520 SCRA 244, 259-260.

^[70]             Felsan Realty & Development Corporation vs. Commonwealth of Australia, G.R. No. 169656, 11 October 2007, 535 SCRA 618, 632.

LEGAL NOTE 0041: WHAT IS LACHES?

SOURCE: INSURANCE OF THE PHILIPPINE ISLANDS CORPORATION VS. SPOUSES VIDAL S. GREGORIO AND JULITA GREGORIO (G.R. NO. 174104, 14 FEBRUARY 2011, PERALTA, J.)

IN 1968  SPOUSES GREGORIO MORTGAGED PARCELS OF LAND TO INSURANCE  PHILIPPINE ISLANDS CORP COVERED BY TAX DECLARATION. IN 1969 THEY WERE FORECLOSED. IN 1996 IPIC FILED DAMAGES AGAINST SPOUSES GROGORIO ON THE GROUND THAT IN 1995 THEY DISCOVERED THAT THE SPOUSES SOLD THE PROPERTIES TO THIRD PARTIES WHO HAVE THESE LANDS TITLED.

ONE DEFENSE OF THE SPOUSES IS THAT IPIC IS GUILTY OF LACHES. IS THIS DEFENSE VALID?

NO. THE SPOUSES ACTED IN BAD FAITH. IF DEFENSE OF LACHES IS ALLOWED, IT WILL RESULT TO INJUSTICE.

SAID THE COURT:

“It is significant to point out at this juncture that the overriding consideration in the instant case is that petitioner was deprived of the subject properties which it should have rightly owned were it not for the fraud committed by respondents. Hence, it would be the height of injustice if respondents would be allowed to go scot-free simply because petitioner relied in good faith on the former’s false representations. Besides, as earlier discussed, even in the exercise of due diligence, petitioner could not have been expected to immediately discover respondents’ fraudulent scheme.”

WHAT IS THE ESSENCE OF LACHES? 

“The essence of laches or “stale demands” is the failure or neglect for an unreasonable and unexplained length of time to do that which, by exercising due diligence, could or should have been done earlier, thus, giving rise to a presumption that the party entitled to assert it either has abandoned or declined to assert it.^9″

IS IT MERELY DUE TO LAPSE OF TIME?

NO. IT IS NOT CONCERNED WITH MERE LAPSE OF TIME.

“It is not concerned with mere lapse of time; the fact of delay, standing alone, being insufficient to constitute laches.^10″

WHAT IS ITS PURPOSE?

NOT TO PENALIZE SLEEPING ON ONE’S RIGHTS BUT TO AVOID RECOGNIZING A RIGHT WHEN TO DO SO WOULD RESULT IN A CLEARLY UNFAIR SITUATION.

“In addition, it is a rule of equity and applied not to penalize neglect or sleeping on one’s rights, but rather to avoid recognizing a right when to do so would result in a clearly unfair situation.¹¹ ”

WHAT CONSTITUTES LACHES OR STALENESS OF DEMAND?

THERE IS NO ABSOLUTE RULE. IT DEPENDS ON EACH CASE.

“There is no absolute rule as to what constitutes laches or staleness of demand; each case is to be determined according to its particular circumstances.¹² Ultimately, the question of laches is addressed to the sound discretion of the court.”

WHAT IS THE BASIS THEN IN DETERMINING WHETHER THERE IS LACHES?

EQUITABLE CONSIDERATIONS.

“. . .   being an equitable doctrine, its application is controlled by equitable considerations.¹³ ”

BUT CAN IT BE USED AS DEFENSE?

YES, BUT IT CANNOT BE USED WHEN TO DO SO IT WOULD RESULT TO INJUSTICE.

“It cannot be used to defeat justice or perpetrate fraud and injustice.¹⁴ It is the better rule that courts, under the principle of equity, will not be guided or bound strictly by the statute of limitations or the doctrine of laches when to be so, a manifest wrong or injustice would result.^15″

1Penned by Associate Justice Renato C. Dacudao, with Associate Justices Hakim S. Abdulwahid and Monina Arevalo-Zenarosa, concurring; rollo, pp. 28-40.2Id. at 42.3Rollo, pp. 187-194.4Id. at 29-30.5Records, pp. 1-12.6Id. at 77-82.7Id. at 553-554.8Philippine Long Distance Telephone Company v. Dulay, 254 Phil. 30, 36 (1989).9Heirs of Emilio Santioque v. Heirs of Emilio Calma, G.R. No. 160832, October 27, 2006, 505 SCRA 665, 684-685.10GF Equity, Inc. v. Valenzona, G.R. No. 156841, June 30, 2005, 462 SCRA 466, 480.11Bicol Agro-Industrial Producers Cooperative, Inc. (BAPCI) v. Obias, G.R. No. 172077, October 9, 2009, 603 SCRA 173, 196; Bogo-Medellin Milling Co., Inc. v. Court of Appeals, 455 Phil. 285, 303 (2003).12Department of Education, Division of Albay v. Oñate, G.R. No. 161758, June 8, 2007, 524 SCRA 200, 216-217.13Placewell International Services Corporation v. Camote, G.R. No. 169973, June 26, 2006, 492 SCRA 761, 769.14LICOMCEN, Inc. v. Foundation Specialists, Inc., G.R. Nos. 167022 and 169678, August 31, 2007, 531 SCRA 705, 725; Amoroso v. Alegre, Jr., G.R. No. 142766, June 15, 2007, 524 SCRA 641, 656; Galicia v. Manliquez Vda. de Mindo, G.R. No. 155785, April 13, 2007, 521 SCRA 85, 96.15Benatiro v. Heirs of Evaristo Cuyos, G.R. No. 161220, July 30, 2008, 560 SCRA 478, 503.

LEGAL NOTE 0040: THE IMPEACHMENT CASE AGAINST MERCEDITAS GUTIERREZ

SOURCE:

Passion For Reason
Gutierrez’s impeachment prospects in Senate

By Raul Pangalangan
Philippine Daily Inquirer
First Posted 01:17:00 03/11/2011

Filed Under: Impeachment, Judiciary (system of justice), Congress, Graft & Corruption, Punishment

THE DEFENDERS of Ombudsman Merceditas Gutierrez have lampooned the charges against her as political rather than legal, and it appears that her critics’ best defense is to say, “So what?” Ironically this was the same answer given by President Gloria Macapagal-Arroyo’s minions when they successfully fought off all impeachment attempts in the past. Treat impeachment merely as a game of numbers. Pay no heed to arguments of principle. Whoever commands more votes, wins.

Now of course the shoe is on the other foot. As Gutierrez’s critics prepare for the trial before the Senate, they shouldn’t cede their moral ascendancy and rely solely on partisan advantage. They should assure the Filipino people that Gutierrez has indeed “betray[ed] public trust,” and that the Articles of Impeachment are actually supported by judicial and non-partisan findings. In Gutierrez’s s case, that’s easily done.

Her defenders, for instance, say that her “unconscionably low conviction rate” is merely incompetence but not “betrayal of public trust.” If she was laggard in responding to corruption complaints, how slow is too slow? Isn’t this test too discretionary, open-ended and subjective?

THE CASE AGAINST HERNANDO PEREZ

Far from it. Take the corruption case against Arroyo’s first secretary of justice, Hernando Perez, who was accused of receiving a $2 million bribe in connection with a $470-million hydroelectric project. President Joseph Estrada had refused to approve that contract, yet Perez signed it barely four days after the Edsa 2 uprising.

The ombudsman sat on the case, ignored the smoking gun evidence given to her on a silver platter by the Swiss government, and when she finally indicted Perez, the charges were thrown out without even a trial on the merits. Why? Because she had dilly-dallied for so long that she violated Perez’s right to a speedy trial! This is a categorical finding that the ombudsman was too slow, and it was made by a court (mind you, consisting of Arroyo-appointed judges) and not by elective politicians. 

THE MULTIBILLION-PESO AUTOMATED ELECTION DEAL

Gutierrez is now also charged for sitting on the flawed multibillion-peso automated election deal. No less than the Supreme Court nullified that contract for its legal shortcuts, and then gave a direct order to the ombudsman to prosecute those who were responsible. Did the ombudsman, armed with a Court order no less, actually file the charges then? No, she did not. In fact, former Sen. Jovito Salonga’s groups, Kilosbayan and Bantay Katarungan (which I chair), had to go back to the Court to ask it to force the ombudsman to do her work. Again, it was the Court that took her to task for foot-dragging. (And when she acted, it was to indict only the small fry and spare the big fish.)

THE PESTANO CASE

The House committee on justice also included the killing of 23-year-old PMA graduate, whistleblower Navy Ensign Philip Andrew Pestaño, who died from gunshot wounds in his quarters inside a Navy boat after he had exposed the use of Navy vessels for transporting drugs and illegally cut lumber. Significantly, the ombudsman ignored the findings of two agencies. The first was the United Nations’ Human Rights Committee, which noted: “While close to 15 years elapsed since the death of the victim, the [parents] are still ignorant of the circumstances surrounding their son’s death, and [Philippine] authorities have yet to initiate an independent investigation. [T]he Ombudsman [has] deemed it necessary to conduct further proceedings …. Since that date, no suspect was prosecuted, or tried, let alone convicted ….” The UN committee also found that, within four months of Pestaño’s death, three of his Navy comrades “all died or disappeared in mysterious circumstances.”

The committee concluded: “The [Philippines is in] breach of its obligation … to properly investigate the death of [Philip], prosecute the perpetrators, and ensure redress.”

Well, Gutierrez finally acted on the Pestaño plea: she dismissed it. To add sting to the injury, she served her dismissal order on Pestaño’s parents the day after they signed the impeachment complaint against her.

Ominously for Gutierrez, the second agency that she ignored was the Philippine Senate, whose legislative inquiry she pooh-poohed as toothless. Until the Senate stepped in, our government investigators in the Philippine National Police and the Department of Justice had declared Pestaño’s death a suicide. Only the Senate held otherwise—and that was the report that the UN committee relied upon. Now it is this “toothless” Senate that will sit in judgment over Gutierrez’s fate, and she will have to explain to them why she belittled their findings.

Irony of ironies, the Senate’s legislative inquiry was at that time sponsored by a diminutive politician with Napoleonic ambitions, then Sen. Gloria Macapagal-Arroyo. Now Arroyo’s allies in the Senate are torn between protecting Arroyo’s ward, the ombudsman, and upholding a Senate report that Arroyo herself had sponsored in an earlier life.

At this stage of the public debate, my concern is actually the “It’s all political” argument. My students may be tired of hearing this, but all these choices indeed are political in the lofty sense that they involve moral judgments about right and wrong, choices we make not by invoking legal technicality but by searching deep within our consciences. Sure they are also political in the shallow sense that they involve power: over votes, over money, over guns. But if we succumb to the pragmatic temptation merely to gather numbers, we dissipate the power of the idea that “public office is a public trust,” and we become no different from an ombudsman who has forgotten her office’s raison d’être.

(Comments to passionforreason@gmail.com)