Tech & the Law (Cases)

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TABINAS (2012-0085) Technology & The Law Cases //

EN BANC [A.M. No. CA-05-18-P. April 12, 2005]

ZALDY NUEZ, COMPLA INANT VS. ELVIRA CRUZ- APAO, RESPONDENT

PER CURIAM:

What brings our judicial system into disrepute are often the actuations of afew erring court personnel peddling influence to party-litigants, creating theimpression that decisions can be bought and sold, ultimately resulting in

the disillusionment of the public. This Court has never wavered in itsvigilance in eradicating the so-called “bad eggs” in the judiciary. Andwhenever warranted by the gravity of the offense, the supreme penalty ofdismissal in an administrative case is meted to erring personnel.

The above pronouncement of this Court in the case of Mendoza vs.Tiongson is applicable to the case at bar.

This is an ADMINISTRATIVE CASE FOR DISHONESTY ANDGRAVE MISCONDUCT AGAINST ELVIRA CRUZ-APAO(RESPONDENT), EXECUTIVE ASSISTANT II OF THE ACTING

DIVISION CLERK OF COURT OF THE FIFTEENTH (15TH

)DIVISION, COURT OF APPEALS (CA).

The complaint arose out of respondent’s solicitation of One MillionPesos (P1,000,000.00) from Zaldy Nuez (Complainant) in exchangefor a speedy and favorable decision of the latter’s pending case inthe CA, more particularly, CA-G.R. SP No. 73460 entitled “PAGCORvs. Zaldy Nuez.” Complainant initially lodged a complaint with the Action Center of the Television program Imbestigador of GMANetwork, the crew of which had accompanied him to thePresidential Anti-Organized Crime Commission –Special ProjectsGroup (PAOCC-SPG) in Malacañang where he filed a complaint forextortion against respondent. This led to the conduct of anentrapment operation by elements of the Presidential Anti-Organized Crime Task Force (PAOCTF) on 28 September 2004 at

the Jollibee Restaurant, 2nd Floor, Times Plaza Bldg., corner Taftand United Nations Avenue, Manila, the place where the supposedhand-over of the money was going to take place.

Respondent’s apprehension by agents of the PAOCTF in the courseof the entrapment operation prompted then CA Presiding Justice(PJ) Cancio C. Garcia (now Supreme Court Justice) to issue OfficeOrder No. 297-04-CG[9] (Order) which created an ad-hocinvestigating committee (Committee). The Committee wasspecifically tasked among others to conduct a thorough andexhaustive investigation of respondent’s case and to recommendthe proper administrative sanctions against her as the evidence

may warrant.

In accordance with the mandate of the Order, the Committeeconducted an investigation of the case and issued a Resolution dated 18October 2004 where it concluded that a prima facie case of Dishonesty andSerious Misconduct against respondent existed. The Committee thusrecommended respondent’s preventive suspension for ninety (90)days pending formal investigation of the charges against her . On 28January 2005, the Committee submitted a Report to the new CA PresidingJustice Romeo A. Brawner with its recommendation that respondent bedismissed from service.

Based on the hearings conducted and the evidence received by theCommittee, the antecedent facts are as follows:

Complainant’s case referred to above had been pending with the CAfor more than two years. Complainant filed an illegal dismissal case againstPAGCOR before the Civil Service Commission (CSC). The CSC orderedcomplainant’s reinstatement but a writ of preliminary injunction and atemporary restraining order was issued by the CA in favor ofPAGCOR, thus complainant was not reinstated to his former jobpending adjudication of the case. Desiring an expeditious decision of hiscase, complainant sought the assistance of respondent sometime in July

2004 after learning of the latter’s employment with the CA from her sister,Magdalena David. During their first telephone conversation and thereafterthrough a series of messages they exchanged via SMS, complainantinformed respondent of the particulars of his pending case. Allegedly,complainant thought that respondent would be able to advise him on howto achieve an early resolution of his case.

However, a week after their first telephone conversation, respondent

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allegedly told complainant that a favorable and speedy decision of his casewas attainable but the person who was to draft the decision was in returnasking for One Million Pesos (P1,000,000.00).

Complainant expostulated that he did not have that kind of moneysince he had been jobless for a long t ime, to which respondent replied, “Eh,ganoon talaga ang lakaran dito, eh. Kung wala kang pera, pasensiya na.” Complainant then tried to ask for a reduction of the amount but respondent

held firm asserting that the price had been set, not by her but by the personwho was going to make the decision. Respondent even admonishedcomplainant with the words “Wala tayo sa palengke iho!” when the latterbargained for a lower amount.

Complainant then asked for time to determine whether or not to paythe money in exchange for the decision. Instead, in August of 2004, hesought the assistance of Imbestigador. The crew of the TV programaccompanied him to PAOCCF-SPG where he lodged a complaint againstrespondent for extortion. Thereafter, he communicated with respondentagain to verify if the latter was still asking for the money and to set up ameeting with her. Upon learning that respondent’s offer of a favorable

decision in exchange for One Million Pesos (P1,000,000.00) was stillstanding, the plan for the entrapment operation was formulatedby Imbestigador in cooperation with the PAOCC.

On 24 September 2004, complainant and respondent met for the first

time in person at the 2nd Floor of Jollibee, Times Plaza Bldg., the placewhere the entrapment operation was later conducted. Patricia Siringan(Siringan), a researcher of Imbestigador, accompanied complainant andposed as his sister-in-law. During the meeting, complainant clarified fromrespondent that if he gave the amount of One Million Pesos(P1,000,000.00), he would get a favorable decision. This was confirmed by

the latter together with the assurance that it would take about a month forthe decision to come out. Respondent also explained that the amount ofOne Million Pesos (P1,000,000.00) guaranteed a favorable decision only inthe CA but did not extend to the Supreme Court should the case beappealed later.

When respondent was asked where the money will go, she claimed

that it will go to a male researcher whose name she refused to divulge. The

researcher was allegedly a lawyer in the CA Fifth (5th) Division wherecomplainant case was pending. She also claimed that she will not get anypart of the money unless the researcher decides to give her some.

Complainant tried once again to bargain for a lower amount during themeeting but respondent asserted that the amount was fixed. She evenexplained that this was their second transaction and the reason why the

amount was closed at One Million Pesos (P1,000,000.00) was because ona previous occasion, only Eight Hundred Thousand Pesos (P800,000.00)was paid by the client despite the fact that the amount had been pegged atOne Million Three Hundred Thousand Pesos (P1,300,000.00).Complainant then proposed that he pay a down payment of SevenHundred Thousand Pesos (P700,000.00) while the balance of ThreeHundred Thousand Pesos (P300,000.00) will be paid once the decisionhad been released. However, respondent refused to entertain the offer, sheand the researcher having learned their lesson from their previousexperience for as then, the client no longer paid the balance of FiveHundred Thousand Pesos (P500,000.00) after the decision had come out.

Complainant brought along copies of the documents pertinent to hiscase during the first meeting. After reading through them, respondentallegedly uttered, “Ah, panalo ka.” The parties set the next meeting date atlunchtime on 28 September 2004 and it was understood that the moneywould be handed over by complainant to respondent then.

On the pre-arranged meeting date, five (5) PAOCTF agents, namely:Capt. Reynaldo Maclang (Maclang) as team leader, SPO1 Renato Banay(Banay), PO1 Bernard Villena (Villena), PO1 Danny Feliciano, and PO2Edgar delos Reyes arrived at around 11:30 in the morning at Jollibee. Nuezand Siringan arrived at past noon and seated themselves at the table

beside the one occupied by the two (2) agents, Banay and Villena.Complainant had with him an unsealed long brown envelope containing ten(10) bundles of marked money and paper money which was to be given torespondent. The envelope did not actually contain the One Million Pesos(P1,000,000.00) demanded by respondent, but instead contained papermoney in denominations of One Hundred Pesos (P100.00), Five HundredPesos (P500.00) and One Thousand Pesos (P1,000.00), as well as




newspaper cut-outs. There were also ten (10) authentic One Hundred Peso(P100.00) bills which had been previously dusted with ultra-violet powderby the PAOCTF. The three other PAOCTF agents were seated a few tablesaway and there were also three (3) crew members from Imbestigador atanother table operating a mini DV camera that was secretly recording thewhole transaction.

Respondent arrived at around 1:00 p.m. She appeared very nervous

and suspicious during the meeting. Ironically, she repeatedly said thatcomplainant might entrap her, precisely like those that were shownon Imbestigador. She thus refused to receive the money then and there.What she proposed was for complainant and Siringan to travel with her in ataxi and drop her off at the CA where she would receive the money.

More irony ensued. Respondent actually said that she felt there werepolicemen around and she was afraid that once she took hold of theenvelope complainant proffered, she would suddenly be arrested andhandcuffed. At one point, she even said, “Ayan o, tapos na silang kumain,bakit hindi pa sila umaalis?,” referring to Banay and Villena at the nexttable. To allay respondent’s suspicion, the two agents stood up after a few

minutes and went near the staircase where they could still see what wasgoing on.

Complainant, respondent and Siringan negotiated for almost one hour.Complainant and Siringan bargained for a lower price but respondentrefused to accede. When respondent finally touched the unsealedenvelope to look at the money inside, the PAOCTF agents converged onher and invited her to the Western Police District (WPD) Headquarters atUnited Nations Avenue for questioning. Respondent became hysterical asa commotion ensued inside the restaurant.

On the way to the WPD on board the PAOCTF vehicle, Banay askedrespondent why she went to the restaurant. The latter replied that she wentthere to get the One Million Pesos (P1,000,000.00).

Respondent was brought to the PNP Crime Laboratory at the WPDwhere she was tested and found positive for ultra-violet powder that waspreviously dusted on the money. She was later detained at the WPD

Headquarters.

At seven o’clock in the evening of 28 September 2004, respondentcalled Atty. Lilia Mercedes Encarnacion Gepty (Atty. Gepty), her immediatesuperior in the CA at the latter’s house. She tearfully confessed to Atty.Gepty that “she asked for money for a case and was entrapped by policeofficers and the media.” Enraged at the news, Atty. Gepty asked why shehad done such a thing to which respondent replied, “Wala lang ma’am,

sinubukan ko lang baka makalusot.” Respondent claimed that she wasashamed of what she did and repented the same. She also asked for Atty.Gepty’s forgiveness and help. The latter instead reminded respondent ofthe instances when she and her co-employees at the CA were exhortedduring office meetings never to commit such offenses.

Atty. Gepty rendered a verbal report of her conversation with theirdivision’s chairman, Justice Martin S. Villarama. She reduced the reportinto writing and submitted the same to then PJ Cancio Garcia on 29September 2004. She also later testified as to the contents of her report tothe Committee.

During the hearing of this case, respondent maintained that whathappened was a case of instigation and not an entrapment. She assertedthat the offer of money in exchange for a favorable decision came not fromher but from complainant. To support her contention, she presentedwitnesses who testified that it was complainant who allegedly offeredmoney to anyone who could help him with his pending case. She likewiseclaimed that she never touched the money on 28 September 2004, rather itwas Capt. Maclang who forcibly held her hands and pressed it to theenvelope containing the money. She thus asked that the administrativecase against her be dismissed.

This Court is not persuaded by respondent’s version. Based on theevidence on record, what happened was a clear case of entrapment, andnot instigation as respondent would like to claim.

In ENTRAPMENT, ways and means are resorted to for the purpose ofensnaring and capturing the law-breakers in the execution of their criminalplan. On the other hand, in instigation, the instigator practically induces the




would-be defendant into the commission of the offense, and he himselfbecomes a co-principal.

In this case, complainant and the law enforcers resorted to entrapmentprecisely because respondent demanded the amount of One Million Pesos(P1,000,000.00) from complainant in exchange for a favorable decision ofthe latter’s pending case. Complainant’s narration of the incidents whichled to the entrapment operation are more in accord with the circumstances

that actually transpired and are more credible than respondent’s version.

Complainant was able to prove by his testimony in conjunction with thetext messages from respondent duly presented before the Committee thatthe latter asked for One Million Pesos (P1,000,000.00) in exchange for afavorable decision of the former’s pending case with the CA. The textmessages were properly admitted by the Committee since the same arenow covered by Section 1(k), Rule 2 of the Rules on Electronic Evidencewhich provides:

“Ephemeral electronic communication” refers to telephoneconversations, text messages . . . and other electronic forms of

communication the evidence of which is not recorded or retained.”

Under Section 2, Rule 11 of the Rules on Electronic Evidence ,“Ephemeral electronic communications shall be proven by the testimony ofa person who was a party to the same or who has personal knowledgethereof . . . .” In this case, complainant who was the recipie nt of saidmessages and therefore had personal knowledge thereof testified on theircontents and import. Respondent herself admitted that the cellphonenumber reflected in complainant’s cellphone from which the messagesoriginated was hers. Moreover, any doubt respondent may have had as tothe admissibility of the text messages had been laid to rest when she andher counsel signed and attested to the veracity of the text messages

between her and complainant. It is also well to remember that inadministrative cases, technical rules of procedure and evidence are notstrictly applied.[68] We have no doubt as to the probative value of the textmessages as evidence in determining the guilt or lack thereof ofrespondent in this case.

Complainant’s testimony as to the discussion between him and

respondent on the latter’s demand for One Million Pesos (P1,000,000.00)was corroborated by the testimony of a disinterested witness, Siringan, thereporter of Imbestigador who was present when the parties met in person.Siringan was privy to the parties’ actual conversation since sheaccompanied complainant on both meetings held on 24 and 28 ofSeptember 2004 at Jollibee.

Respondent’s evidence was comprised by the testimony of her

daughter and sister as well as an acquaintance who merely testified onhow respondent and complainant first met. Respondent’s own testimonyconsisted of bare denials and self-serving claims that she did notremember either the statements she herself made or the contents of themessages she sent. Respondent had a very selective memory madeapparent when clarificatory questions were propounded by the Committee.

When she was asked if she had sent the text messages contained incomplainant’s cellphone and which reflected her cellphone number,respondent admitted those that were not incriminating but claimed she didnot remember those that clearly showed she was transacting withcomplainant. Thus, during the 17 November 2004 hearing, where

respondent was questioned by Justice Salazar-Fernando, the followingtranspired:

Q: After reading those text messages, do you remember having madethose text messages?

(Respondent)

A: Only some of these, your honors.

Justice Salazar-Fernando: Which one?

A: Sabi ko po magpunta na lang sila sa office. Yung nasa bandangunahan po, your Honors.

Q: What else?

A: Tapos yung sabi ko pong pagpunta niya magdala siya ng I.D. orisama niya sa kanya si Len David.

Q: Okay, You remember having texted Zaldy Nuez on September 23,2004 at 1309 which was around 1:09 in the afternoon and you said “di mepwede punta na lang kayo dito sa office Thursday 4:45 p.m. Room 107






Centennial Building.

A: Yes, your Honors.

Q: And on September 23, 2004 at 1731 which was around5:31 in the afternoon you again texted Zaldy Nuez and yousaid “Sige bukas nang tanghali sa Times Plaza, Taft Avenue, corner U.N. Avenue. Magdala ka ng I.D. paramakilala kita o isama mo si Len David.

A: Opo, your Honors.

Q: How about on September 23 at 5:05 in the afternoon whenyou said “Di pwede kelan mo gusto f ixed price na iyon.”

A: I don’t remember that, your Honors.

Q: Again on September 23 at 5:14 p.m. you said “Alam mo diko iyon price and nagbigay noon yung gagawa. Wala akodoon.” You don’t also remember this?

A: Yes, your Honors.

Q: September 27 at 1:42 p.m. “Oo naman ayusin nyo yung

hindi halatang pera”. You also don’t remember that? A: Yes Your Honors.

Q: September 27 at 1:30 in the afternoon, “Di na pwede sabisa akin. Pinakaiusapan ko na nga ulit iyon.” You don’tremember that?

A: No, your Honors.

Respondent would like this Court to believe that she never had anyintention of committing a crime, that the offer of a million pesos for afavorable decision came from complainant and that it was complainant andthe law enforcers who instigated the whole incident.

Respondent thus stated that she met with complainant only to tell thelatter to stop calling and texting her, not to get the One Million Pesos(P1,000,000.00) as pre-arranged.

This claim of respondent is preposterous to say the least. Had the offerof a million pesos really come from complainant and had she really

intended to stop the latter from corrupting her, she could have simplyrefused to answer the latter’s messages and calls. This she did not do.She answered those calls and messages though she later claimed she didnot remember having sent the same messages to complainant. She couldalso have reported the matter to the CA Presiding Justice, an action whichrespondent admitted during the hearing was the proper thing to do underthe circumstances. But this course of action she did not resort to either,allegedly because she never expected things to end this way.

While claiming that she was not interested in complainant’s offer of amillion pesos, she met with him not only once but twice, ostensibly, to tellthe latter to stop pestering her. If respondent felt that telling complainant tostop pestering her would be more effective if she did it in person, the samewould have been accomplished with a single meeting. There was noreason for her to meet with complainant again on 28 September 2004unless there was really an understanding between them that the OneMillion Pesos (P1,000,000.00) will be handed over to her then.Respondent even claimed that she became afraid of complainant when shelearned that the latter had been dismissed by PAGCOR for using illegaldrugs. This notwithstanding, she still met with him on 28 September 2004.

Anent complainant’s narration of respondent’s refusal to reduce theamount of One Million Pesos (P1,000.000.00) based on the lesson learnedfrom a previous transaction, while admitting that she actually said thesame, respondent wants this Court to believe that she said it merely tohave something to talk about. If indeed, respondent had no intention ofcommitting any wrongdoing, it escapes the Court why she had to make upstories merely to test if complainant could make good on his alleged boastthat he could come up with a million pesos. It is not in accord with ordinaryhuman experience for an honest government employee to make up storiesthat would make party-litigants believe that court decisions may be bought

and sold. Time and again this Court has declared, thus:“Everyone in the judiciary bears a heavy burden of responsibility for theproper discharge of his duty and it behooves everyone to steer clear of anysituations in which the slightest suspicion might be cast on his conduct. Anymisbehavior on his part, whether true or only perceived, is likely to reflectadversely on the administration of justice.”




Respondent having worked for the government for twenty four (24)years, nineteen (19) of which have been in the CA, should have knownvery well that court employees are held to the strictest standards ofhonesty and integrity. Their conduct should at all times be abovesuspicion. As held by this Court in a number of cases, “The conduct orbehavior of all officials of an agency involved in the administration of justice, from the Presiding Judge to the most junior clerk, should becircumscribed with the heavy burden of responsibility.” Their conduct must,

at all times be characterized by among others, strict propriety and decorumin order to earn and maintain the respect of the public for the judiciary.

Respondent’s actuations from the time she started communicating withcomplainant in July 2004 until the entrapment operation on 28 September2004 show a lack of the moral fiber demanded from court employees.Respondent’s avowals of innocence notwithstanding, the evidence clearlyshow that she solicited the amount of One Million Pesos (P1,000,000.00)from complainant in exchange for a favorable decision. The testimony of

Atty. Gepty, the recipient of respondent’s confession immediately after theentrapment operation, unmistakably supports the finding that respondentdid voluntarily engage herself in the activity she is being accused of.

Respondent’s solicitation of money from complainant in exchange for afavorable decision violates Canon I of the Code of Conduct for CourtPersonnel which took effect on 1 June 2004 pursuant to A.M. No. 03-06-13-SC. Sections 1 and 2, Canon I of the Code of Conduct for CourtPersonnel expressly provide:

“SECTION 1. Court personnel shall not use their official position tosecure unwarranted benefits, privileges or exemption for themselvesor for others.”

“SECTION 2. Court personnel shall not solicit or accept any gift, favor

or benefit based on any explicit or implicit understanding that suchgift, favor or benefit shall influence their officialactions.” (Underscoring supplied)

It is noteworthy that the penultimate paragraph of the Code of Conductfor Court Personnel specifically provides:

INCORPORATION OF OTHER RULES

“SECTION 1. All provisions of the law, Civil Service rules, and issuances ofthe Supreme Court governing the conduct of public officers and employeesapplicable to the judiciary are deemed incorporated into this Code.”

By soliciting the amount of One Million Pesos (P1,000,000.00) fromcomplainant, respondent committed an act of impropriety whichimmeasurably affects the honor and dignity of the judiciary and the people’sconfidence in it.

In the recent case of Aspiras vs. Abalos, complainant chargedrespondent, an employee of the Records Section, Office of the Court Administrator (OCA), Supreme Court for allegedly deceiving him into givingher money in the total amount of Fifty Two Thousand Pesos (P52,000.00)in exchange for his acquittal in a murder case on appeal before theSupreme Court. It turned out that respondent’s representation was falsebecause complainant was subsequently convicted of murder andsentenced to suffer the penalty of reclusion perpetua by the SupremeCourt.

The Supreme Court en banc found Esmeralda Abalos guilty of serious

misconduct and ordered her dismissal from the service. This Court aptlyheld thus:

“In Mirano vs. Saavedra,[80] this Court emphatically declared that a publicservant must exhibit at all times the highest sense of honesty and integrity.The administration of justice is a sacred task, and by the very nature oftheir duties and responsibilities, all those involved in it must faithfullyadhere to, hold inviolate, and invigorate the principle that public office is apublic trust, solemnly enshrined in the Constitution.”[81]

Likewise, in the grave misconduct case against Datu Alykhan T. Amilbangsa of the Shari’a Circuit Court, Bengo, Tawi-Tawi,[82] this Court

stated:

“No position demands greater moral righteousness and uprightness fromthe occupant than the judicial office. Those connected with thedispensation of justice bear a heavy burden of responsibility. Courtemployees in particular, must be individuals of competence, honesty andprobity charged as they are with safeguarding the integrity of the court . . . .The High Court has consistently held that persons involved in the

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administration of justice ought to live up to the strictest standards ofhonesty and integrity in the public service. He should refrain from financialdealings which would interfere with the efficient performance of hisduties.[83] The conduct required of court personnel must always be beyondreproach.”[84]

The following pronouncement of this Court in the case of Yrastorza, Sr.vs. Latiza, Court Aide, RTC Branch 14 Cebu City[85] is also worth

remembering:“Court employees bear the burden of observing exacting standards ofethics and morality. This is the price one pays for the honor of working inthe judiciary. Those who are part of the machinery dispensing justice fromthe lowliest clerk to the presiding judge must conduct themselves withutmost decorum and propriety to maintain the public’s faith and respect forthe judiciary. Improper behavior exhibits not only a paucity ofprofessionalism at the workplace but also a great disrespect to the courtitself. Such demeanor is a failure of circumspection demanded of everypublic official and employee.”[86]

In view of the facts narrated above and taking into account theapplicable laws and jurisprudence, the Committee intheir Repor t[87] recommended that respondent be dismissed fromgovernment service for GRAVE MISCONDUCT and violation of Sections 1and 2, Canon 1 of the Code of Conduct for Court Personnel.[88]

Finding the Committee’s recommendation to be supported by morethan substantial evidence and in accord with the applicable laws and jurisprudence, the recommendation is well taken.

WHEREFORE, premises considered, respondent Elvira Cruz-Apao isfound GUILTY of GRAVE MISCONDUCT and violation of SECTIONS 1 and

2 of the CODE OF CONDUCT FOR COURT PERSONNEL and isaccordingly DISMISSED from government service, with prejudice to re-employment in any branch, instrumentality or agency of the government,including government-owned and controlled corporations. Her retirementand all benefits except accrued leave credits are hereby FORFEITED.

SO ORDERED.

SECOND DIVISION

RUSTAN ANG y PASCUA, G.R. No. 182835 Petitioner,

Present:

CARPIO, J., Chairperson,- versus - VELASCO, JR.,*

BRION, ABAD, andPEREZ, JJ.

THE HONORABLE COURT OFAPPEALS and IRISH SAGUD, Promulgated:

Respondents. April 20, 2010

x --------------------------------------------------------------------------------------- xDECISION

ABAD, J.:

This case concerns a claim of commission of the crime of violence againstwomen when a former boyfriend sent to the girl the picture of a naked

woman, not her, but with her face on it.

The Indictment

The public prosecutor charged petitioner-accused Rustan Ang(Rustan) before the Regional Trial Court (RTC) of Baler, Aurora, ofviolation of the Anti-Violence Against Women and Their Children Actor Republic Act (R.A.) 9262 in an information that reads:

That on or about June 5, 2005, in the Municipality ofMaria Aurora, Province of Aurora, Philippines and withinthe jurisdiction of this Honorable Court, the saidaccused willfully, unlawfully and feloniously, in apurposeful and reckless conduct, sent through theShort Messaging Service (SMS) using his mobile phone,a pornographic picture to one Irish Sagud, who was his




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former girlfriend, whereby the face of the latter wasattached to a completely naked body of another womanmaking it to appear that it was said Irish Sagud who isdepicted in the said obscene and pornographic picturethereby causing substantial emotional anguish,psychological distress and humiliation to the said IrishSagud.

The Facts and the Case

The evidence for the prosecution shows that complainant IrishSagud (Irish) and accused Rustan were classmates. Rustan courted Irish

and they became “on-and-off” sweethearts towards the end of 2004. When

Irish learned afterwards that Rustan had taken a live-in partner (now his

wife), whom he had gotten pregnant, Irish broke up with him.

Before Rustan got married, however, he got in touch with Irish and

tried to convince her to elope with him, saying that he did not love the

woman he was about to marry. Irish rejected the proposal and told Rustan

to take on his responsibility to the other woman and their child. Irish

changed her cellphone number but Rustan somehow managed to get holdof it and sent her text messages. Rustan used two cellphone numbers for

sending his messages, namely, 0920-4769301 and 0921-8084768. Irish

replied to his text messages but it was to ask him to leave her alone.

In the early morning of , Irish received through multimedia message

service (MMS) a picture of a naked woman with spread legs and with

Irish’s face superimposed on the figure (Exhibit A). The sender’s cellphone

number, stated in the message, was 0921-8084768, one of the numbers

that Rustan used. Irish surmised that he copied the picture of her face

from a shot he took when they were in in 2003 (Exhibit B).

After she got the obscene picture, Irish got other text messages

from Rustan. He boasted that it would be easy for him to create similarly

scandalous pictures of her. And he threatened to spread the picture he

sent through the internet. One of the messages he sent to Irish, written in

text messaging shorthand, read: “Madali lang ikalat yun, my chatrum ang

tarlac rayt pwede ring send sa lahat ng chatter.”

Irish sought the help of the vice mayor of Maria Aurora who referred her to

the police. Under police supervision, Irish contacted Rustan through the

cellphone numbers he used in sending the picture and his text

messages. Irish asked Rustan to meet her at the Lorentess Resort in Brgy.

Ramada, Maria Aurora, and he did. He came in a motorcycle. After

parking it, he walked towards Irish but the waiting police officersintercepted and arrested him. They searched him and seized his Sony

Ericsson P900 cellphone and several SIM cards. While Rustan was being

questioned at the police station, he shouted at Irish: “Malandi ka kasi!”

Joseph Gonzales, an instructor at the Aurora State College of Technology,

testified as an expert in information technology and computer graphics. He

said that it was very much possible for one to lift the face of a woman from

a picture and superimpose it on the body of another woman in another

picture. Pictures can be manipulated and enhanced by computer to make

it appear that the face and the body belonged to just one person.

Gonzales testified that the picture in question (Exhibit A) had two

distinct irregularities: the face was not proportionate to the body and the

face had a lighter color. In his opinion, the picture was fake and the face

on it had been copied from the picture of Irish in Exhibit B. Finally,

Gonzales explained how this could be done, transferring a picture from a

computer to a cellphone like the Sony Ericsson P900 seized from Rustan.

For his part, Rustan admitted having courted Irish. He began visiting her in

Tarlac in October 2003 and their relation lasted until December of that

year. He claimed that after their relation ended, Irish wanted

reconciliation. They met in December 2004 but, after he told her that his

girlfriend at that time (later his wife) was already pregnant, Irish walked out

on him.

Sometime later, Rustan got a text message from Irish, asking him to

meet her at Lorentess Resort as she needed his help in selling her

cellphone. When he arrived at the place, two police officers approached

him, seized his cellphone and the contents of his pockets, and brought him




to the police station.

Rustan further claims that he also went to Lorentess because Irish

asked him to help her identify a prankster who was sending her malicious

text messages. Rustan got the sender’s number and, pretending to be

Irish, contacted the person. Rustan claims that he got back obscene

messages from the prankster, which he forwarded to Irish from his

cellphone. This explained, he said, why the obscene messages appeared

to have originated from his cellphone number. Rustan claims that it wasIrish herself who sent the obscene picture (Exhibit A) to him. He presented

six pictures of a woman whom he identified as Irish (Exhibits 2 to 7).

Michelle Ang (Michelle), Rustan’s wife, testified that she was sure Irish sent

the six pictures. Michelle claims that she received the pictures and hid the

memory card (Exhibit 8) that contained them because she was jealous and

angry. She did not want to see anything of Irish. But, while the woman in

the pictures posed in sexy clothing, in none did she appear naked as in

Exhibit A. Further, the face of the woman in Exhibits 2, 4, 5 and 6 could not

be seen. Irish denied that she was the woman in those four pictures. As

for Exhibits 3 and 7, the woman in the picture was fully dressed.

After trial, the RTC found Irish’s testimony completely credible,

given in an honest and spontaneous manner. The RTC observed that she

wept while recounting her experience, prompting the court to comment:

“Her tears were tangible expression of pain and anguish for the acts of

violence she suffered in the hands of her former sweetheart. The crying of

the victim during her testimony is evidence of the credibility of her charges

with the verity borne out of human nature and experience.” Thus, in its

Decision dated , the RTC found Rustan guilty of the violation of Section

5(h) of R.A. 9262.

On Rustan’s appeal to the Court of Appeals (CA),[7] the latter

rendered a decision dated , affirming the RTC decision. The CA denied

Rustan’s motion for reconsideration in a resolution dated . Thus, Rustan

filed the present for review on certiorari.

The Issues Presented

The principal issue in this case is whether or not accused Rustan sent Irish

by cellphone message the picture with her face pasted on the body of a

nude woman, inflicting anguish, psychological distress, and humiliation on

her in violation of Section 5(h) of R.A. 9262.

The subordinate issues are:

1. Whether or not a “dating relationship” existed between Rustan and

Irish as this term is defined in R.A. 9262;

2. Whether or not a single act of harassment, like the sending of thenude picture in this case, already constitutes a violation of Section 5(h) of

R.A. 9262;

3. Whether or not the evidence used to convict Rustan was obtained

from him in violation of his constitutional rights; and

4. Whether or not the RTC properly admitted in evidence the obscene

picture presented in the case.

The Court’s Rulings

Section 3(a) of R.A. 9262 provides that violence against women includes

an act or acts of a person against a woman with whom he has or had a

sexual or dating relationship. Thus:

SEC. 3. Definition of Terms. – As used in this Act,

(a) “Violence against women and their children”

refers to any act or a series of acts committed by any

person against a woman who is his wife, former wife, or

against a woman with whom the person has or had a

sexual or dating relationship, or with whom he has a

common child, or against her child whether legitimate

or illegitimate, within or without the family abode, which

result in or is likely to result in physical, sexual,

psychological harm or suffering, or economic abuse

including threats of such acts, battery, assault,

coercion, harassment or arbitrary deprivation of liberty.

x x x x

Section 5 identifies the act or acts that constitute violence against women







and these include any form of harassment that causes substantial

emotional or psychological distress to a woman. Thus:

SEC. 5. Acts of Violence Against Women and Their

Children. – The crime of violence against women and

their children is committed through any of the following

acts:

x x x xh. Engaging in purposeful, knowing, or reckless

conduct, personally or through another, that alarms or

causes substantial emotional or psychological distress

to the woman or her child. This shall include, but not be

limited to, the following acts:

x x x x

5. Engaging in any form of harassment or violence;

The above provisions, taken together, indicate that the ELEMENTS OF

THE CRIME OF VIOLENCE AGAINST WOMEN THROUGH

HARASSMENT ARE:

1. The offender has or had a sexual or dating

relationship with the offended woman;

2. The offender, by himself or through another,

commits an act or series of acts of harassment against the

woman; and

3. The harassment alarms or causes substantial

emotional or psychological distress to her.

One. The parties to this case agree that the prosecution needed to prove

that accused Rustan had a “dating relationship” with Irish. Section 3(e)

provides that a “dating relationship” includes a situation where the parties

are romantically involved over time and on a continuing basis during the

course of the relationship. Thus:

(e) “Dating relationship” refers to a situation

wherein the parties live as husband and wife without the

benefit of marriage or are romantically involved over

time and on a continuing basis during the course of the

relationship. A casual acquaintance or ordinary

socialization between two individuals in a business or

social context is not a dating relationship. (Underscoring

supplied.)

Here, Rustan claims that, being “romantically involved,” implies that the

offender and the offended woman have or had sexual relations. According

to him, “romance” implies a sexual act. He cites Webster’s Comprehensive

Dictionary Encyclopedia Edition which provides a colloquial or informalmeaning to the word “romance” used as a verb, i.e., “to make love; to make

love to” as in “He romanced her.”

But it seems clear that the law did not use in its provisions the

colloquial verb “romance” that implies a sexual act. It did not say that the

offender must have “romanced” the offended woman. Rather, it used the

noun “romance” to describe a couple’s relationship, i.e., “a love affair.”[9]

R.A. 9262 provides in Section 3 that “violence against women x x x refers

to any act or a series of acts committed by any person against a woman x x

x with whom the person has or had

a sexual or dating relationship.” Clearly, the law itself distinguishes a

sexual relationship from a dating relationship. Indeed, Section 3(e) above

defines “dating relationship” while Section 3(f) defines “sexual

relations.” The latter “refers to a single sexual act which may or may not

result in the bearing of a common child.” The dating relationship that the

law contemplates can, therefore, exist even without a sexual intercourse

taking place between those involved.

Rustan also claims that since the relationship between Irish and him was of

the “on-and-off” variety (away-bati), their romance cannot be regarded as

having developed “over time and on a continuing basis.” But the two of

them were romantically involved, as Rustan himself admits, from October

to December of 2003. That would be time enough for nurturing a

relationship of mutual trust and love.

An “away-bati” or a fight-and-kiss thing between two lovers is a common

occurrence. Their taking place does not mean that the romantic relation

between the two should be deemed broken up during periods of

misunderstanding. Explaining what “away-bati” meant, Irish explained that







at times, when she could not reply to Rustan’s messages, he would get

angry at her. That was all. Indeed, she characterized their three-month

romantic relation as continuous.

Two. Rustan argues that the one act of sending an offensive picture

should not be considered a form of harassment. He claims that such would

unduly ruin him personally and set a very dangerous precedent. But

Section 3(a) of R.A. 9262 punishes “any act or series of acts” thatconstitutes violence against women. This means that a single act of

harassment, which translates into violence, would be enough. The object of

the law is to protect women and children. Punishing only violence that is

repeatedly committed would license isolated ones.

Rustan alleges that today’s women, like Irish, are so used to obscene

communications that her getting one could not possibly have produced

alarm in her or caused her substantial emotional or psychological

distress. He claims having previously exchanged obscene pictures with

Irish such that she was already desensitized by them.

But, firstly, the RTC which saw and heard Rustan and his wife give their

testimonies was not impressed with their claim that it was Irish who sent

the obscene pictures of herself (Exhibits 2-7). It is doubtful if the woman in

the picture was Irish since her face did not clearly show on them.

Michelle, Rustan’s wife, claimed that she deleted several other pictures that

Irish sent, except Exhibits 2 to 7. But her testimony did not make

sense. She said that she did not know that Exhibits 2 to 7 had remained

saved after she deleted the pictures. Later, however, she said that she did

not have time to delete them.

And, if she thought that she had deleted all

the pictures from the memory card, then she had no reason at all to keep

and hide such memory card. There would have been nothing to

hide. Finally, if she knew that some pictures remained in the card, there

was no reason for her to keep it for several years, given that as she said

she was too jealous to want to see anything connected to Irish. Thus, the

RTC was correct in not giving credence to her testimony.

Secondly, the Court cannot measure the trauma that Irish experienced

based on Rustan’s low regard for the alleged moral sensibilities of today’s

youth. What is obscene and injurious to an offended woman can of course

only be determined based on the circumstances of each case. Here, the

naked woman on the picture, her legs spread open and bearing Irish’s

head and face, was clearly an obscene picture and, to Irish a revolting and

offensive one. Surely, any woman like Irish, who is not in the pornography

trade, would be scandalized and pained if she sees herself in such a

picture. What makes it further terrifying is that, as Irish testified, Rustan

sent the picture with a threat to post it in the internet for all to see. Thatmust have given her a nightmare.

Three. Rustan argues that, since he was arrested and certain items were

seized from him without any warrant, the evidence presented against him

should be deemed inadmissible. But the fact is that the prosecution did not

present in evidence either the cellphone or the SIM cards that the police

officers seized from him at the time of his arrest. The prosecution did not

need such items to prove its case. Exhibit C for the prosecution was but a

photograph depicting the Sony Ericsson P900 cellphone that was used,

which cellphone Rustan admitted owning during the pre-trial conference.

Actually, though, the bulk of the evidence against him consisted in Irish’s

testimony that she received the obscene picture and malicious text

messages that the sender’s cellphone numbers belonged to Rustan with

whom she had been previously in communication. Indeed, to prove that the

cellphone numbers belonged to Rustan, Irish and the police used such

numbers to summon him to come to Lorentess Resort and he did.

Consequently, the prosecution did not have to present the confiscated

cellphone and SIM cards to prove that Rustan sent those messages.

Moreover, Rustan admitted having sent the malicious text messages to

Irish. His defense was that he himself received those messages from an

unidentified person who was harassing Irish and he merely forwarded the

same to her, using his cellphone. But Rustan never presented the

cellphone number of the unidentified person who sent the messages to him

to authenticate the same. The RTC did not give credence to such version

and neither will this Court. Besides, it was most unlikely for Irish to pin the

things on Rustan if he had merely tried to help her identify the sender.




Four . Rustan claims that the obscene picture sent to Irish through a text

message constitutes an electronic document. Thus, it should be

authenticated by means of an electronic signature, as provided under

Section 1, Rule 5 of the Rules on Electronic Evidence (A.M. 01-7-01-SC).

But, firstly, Rustan is raising this objection to the admissibility of the

obscene picture, Exhibit A, for the first time before this Court. The objection

is too late since he should have objected to the admission of the picture on

such ground at the time it was offered in evidence. He should be deemedto have already waived such ground for objection.

Besides, the rules he cites do not apply to the present criminal action. The

Rules on Electronic Evidence applies only to civil actions, quasi-judicial

proceedings, and administrative proceedings.

In conclusion, this Court finds that the prosecution has proved each and

every element of the crime charged beyond reasonable doubt.

WHEREFORE, the Court DENIES the petition and AFFIRMS the decision

of the Court of Appeals in CA-G.R. CR 30567 dated and its resolution

dated .

SO ORDERED.

THIRD DIVISION

G.R. No. 170633 - October 17, 2007

MCC INDUSTRIAL SALES CORPORATION, petitioner, vs. SSANGYONGCORPORATION, respondents.

NACHURA, J.: Before the Court is a petition for review on certiorari of the Decision of theCourt of Appeals in CA-G.R. CV No. 82983 and its Resolution denying themotion for reconsideration thereof.

Petit ioner MCC Industrial Sales (MCC), a domestic corporation withoffice at Binondo, Manila, is engaged in the business of importing andwholesaling stainless steel products. One of its suppliers is the Ssangyong

Corporat ion (Ssangyong), an international trading company5 with headoffice in Seoul, South Korea and regional headquarters in Makati City,Philippines.6 The two corporations conducted business through telephonecalls and facsimile or telecopy transmissions.7 Ssangyong would sendthe pro forma invoices containing the details of the steel product order toMCC; if the latter conforms thereto, its representative affixes his signatureon the faxed copy and sends it back to Ssangyong, again by fax.8

On April 13, 2000, Ssangyong Manila Office sent, by fax, a

letter9 addressed to Gregory Chan, MCC Manager [also the President10 ofSanyo Seiki Stainless Steel Corporation], to confirm MCC's and SanyoSeiki's order of 220 metric tons (MT) of hot rolled stainless steel under apreferential rate of US$1,860.00 per MT. Chan, on behalf of thecorporations, assented and affixed his signature on the conforme portion ofthe letter .11

On April 17, 2000, Ssangyong forwarded to MCC Pro Forma InvoiceNo. ST2-POSTSO40112 containing the terms and conditions of thetransaction. MCC sent back by fax to Ssangyong the invoice bearing theconformity signatur e13 of Chan. As stated in the pro forma invoice,payment for the ordered steel products would be made through an

irrevocable letter of credit (L/C) at sight in favor of Ssangyong.14 Followingtheir usual practice, delivery of the goods was to be made after the L/C hadbeen opened.

In the meantime, because of its confirmed transaction with MCC,Ssangyong placed the order with its steel manufacturer, Pohang Iron andSteel Corporation (POSCO), in South Korea15 and paid the same in full.

Because MCC could open only a partial letter of credit, the order for 220MTof steel was split into two,16 one for 110MT covered by Pro Forma InvoiceNo. ST2-POSTS0401-117 and another for 110MT covered by ST2-POSTS0401-2,18 both dated April 17, 2000.

On June 20, 2000, Ssangyong, through its Manila Office, informed SanyoSeiki and Chan, by way of a fax transmittal, that it was ready to ship193.597MT of stainless steel from Korea to the Philippines. It requestedthat the opening of the L/C be facilitated.19 Chan affixed his signature onthe fax transmittal and returned the same, by fax, to Ssangyong.20

Two days later, on June 22, 2000, Ssangyong Manila Office informedSanyo Seiki, thru Chan, that it was able to secure a US$30/MT

http://www.lawphil.net/judjuris/juri2007/oct2007/gr_170633_2007.html#fnt5




































price adjustment on the contracted price of US$1,860.00/MT for the 200MTstainless steel, and that the goods were to be shipped in two tranches, thefirst 100MT on that day and the second 100MT not later than June 27,2000. Ssangyong reiterated its request for the facilitation of the L/C'sopening.21

Ssangyong later, through its Manila Office, sent a letter, on June 26, 2000,to the Treasury Group of Sanyo Seiki that it was looking forward toreceiving the L/C details and a cable copy thereof that day.22 Ssangyong

sent a separate letter of the same date to Sanyo Seiki requesting for theopening of the L/C covering payment of the first 100MT not later than June28, 2000.23 Similar letters were transmitted by Ssangyong Manila Officeon June 27, 2000.24 On June 28, 2000, Ssangyong sent another facsimileletter to MCC stating that its principal in Korea was already in a difficultsituation25 because of the failure of Sanyo Seiki and MCC to open theL/C's.

The following day, June 29, 2000, Ssangyong received, by fax, a lettersigned by Chan, requesting an extension of time to open the L/C becauseMCC's credit line with the bank had been fully availed of in connection withanother transaction, and MCC was waiting for an additional credit

line.26 On the same date, Ssangyong replied, requesting that it beinformed of the date when the L/C would be opened, preferably at theearliest possible time, since its Steel Team 2 in Korea was having problemsand Ssangyong was incurring warehousing costs.27 To maintain their goodbusiness relationship and to support MCC in its financial predicament,Ssangyong offered to negotiate with its steel manufacturer, POSCO,another US$20/MT discount on the price of the stainless steel ordered.This was intimated in Ssangyong's June 30, 2000 letter to MCC.28On July6, 2000, another follow-up letter29 for the opening of the L/C was sent bySsangyong to MCC.

However, despite Ssangyong's letters, MCC failed to open a letter of

credit.30 Consequently, on August 15, 2000, Ssangyong, through counsel,wrote Sanyo Seiki that if the L/C's were not opened, Ssangyong would becompelled to cancel the contract and hold MCC liable for damages forbreach thereof amounting to US$96,132.18, inclusive of warehouseexpenses, related interests and charges.31

Later, Pro Forma Invoice Nos. ST2-POSTS080-132 and ST2-POSTS080-233 dated August 16, 2000 were issued by Ssangyong and sent via fax to

MCC. The invoices slightly varied the terms of the earlier pro formainvoices(ST2-POSTSO401, ST2-POSTS0401-1 and ST2-POSTS0401-2), in thatthe quantity was now officially100MT per invoice and the price wasreduced to US$1,700.00 per MT. As can be gleaned from the photocopiesof the said August 16, 2000 invoices submitted to the court, they both bearthe conformity signature of MCC Manager Chan.

On August 17, 2000, MCC finally opened an L/C with PCIBank forUS$170,000.00 covering payment for 100MT of stainless steel coil

under Pro Forma Invoice No. ST2-POSTS080-2.34 The goods covered bythe said invoice were then shipped to and received by MCC.35

MCC then faxed to Ssangyong a letter dated August 22, 2000 signed byChan, requesting for a price adjustment of the order stated in ProForma Invoice No. ST2-POSTS080-1, considering that the prevailing priceof steel at that time was US$1,500.00/MT, and that MCC lost a lot of moneydue to a recent strike.36

Ssangyong rejected the request, and, on August 23, 2000, sent a demandletter37 to Chan for the opening of the second and last L/C ofUS$170,000.00 with a warning that, if the said L/C was not opened byMCC on August 26, 2000, Ssangyong would be constrained to cancel the

contract and hold MCC liable for US$64,066.99 (representing costdifference, warehousing expenses, interests and charges as of August 15,2000) and other damages for breach. Chan failed to reply.

Exasperated, Ssangyong through counsel wrote a letter to MCC, onSeptember 11, 2000, canceling the sales contract under ST2-POSTS0401-1 /ST2-POSTS0401-2, and demanding payment of US$97,317.37representing losses, warehousing expenses, interests and charges.38

Ssangyong then filed, on November 16, 2001, a civil action for damagesdue to breach of contract against defendants MCC, Sanyo Seiki andGregory Chan before the Regional Trial Court of Makati City. In itscomplaint,39 Ssangyong alleged that defendants breached their contractwhen they refused to open the L/C in the amount of US$170,000.00 for theremaining 100MT of steel under Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2.

After Ssangyong rested its case, defendants filed a Demurrer toEvidence40 alleging that Ssangyong failed to present the original copies ofthe pro forma invoices on which the civil action was based. In an Order












































dated April 24, 2003, the court denied the demurrer, ruling that thedocumentary evidence presented had already been admitted in theDecember 16, 2002 Order41 and their admissibility finds support inRepublic Act (R.A.) No. 8792, otherwise known as the ElectronicCommerce Act of 2000. Considering that both testimonial and documentaryevidence tended to substantiate the material allegations in the complaint,Ssangyong's evidence sufficed for purposes of a prima facie case.42

After trial on the merits, the RTC rendered its Decision43 on March 24,

2004, in favor of Ssangyong. The trial court ruled that when plaintiff agreedto sell and defendants agreed to buy the 220MT of steel products for theprice of US$1,860 per MT, the contract was perfected. The subjecttransaction was evidenced by Pro FormaInvoice Nos. ST2-POSTS0401-1and ST2-POSTS0401-2 , which were later amended only in terms ofreduction of volume as well as the price per MT, following ProForma Invoice Nos. ST2-POSTS080-1 and ST2-POSTS080-2. The RTC,however, excluded Sanyo Seiki from liability for lack of competentevidence. The falloof the decision reads:

WHEREFORE, premises considered, Judgment is hereby renderedordering defendants MCC Industrial Sales Corporation and Gregory

Chan, to pay plaintiff, jointly and severally the following:1) Actual damages of US$93,493.87 representing the outstandingprincipal claim plus interest at the rate of 6% per annum from March30, 2001.

2) Attorney's fees in the sum of P50,000.00 plus P2,000.00 percounsel's appearance in court, the same being deemed just andequitable considering that by reason of defendants' breach of theirobligation under the subject contract, plaintiff was constrained tolitigate to enforce its rights and recover for the damages itsustained, and therefore had to engage the services of a lawyer.

3) Costs of suit.

No award of exemplary damages for lack of sufficient basis.

SO ORDERED.44

On April 22, 2004, MCC and Chan, through their counsel of record, Atty.Eladio B. Samson, filed their Notice of Appeal.45 On June 8, 2004, the lawoffice of Castillo Zamora & Poblador entered its appearance as their

collaborating counsel.

In their Appeal Brief filed on March 9, 2005,46 MCC and Chan raisedbefore the CA the following errors of the RTC:

I. THE HONORABLE COURT A QUO PLAINLY ERRED INFINDING THAT APPELLANTS VIOLATED THEIR CONTRACTWITH APPELLEE

A. THE HONORABLE COURT A QUO PLAINLY ERRED IN

FINDING THAT APPELLANTS AGREED TO PURCHASE200 METRIC TONS OF STEEL PRODUCTS FROM APPELLEE, INSTEAD OF ONLY 100 METRIC TONS.

1. THE HONORABLE COURT A QUO PLAINLYERRED IN ADMITTING IN EVIDENCE THEPROFORMA INVOICES WITH REFERENCE NOS. ST2-POSTS0401-1 AND ST2-POSTS0401-2.

II. THE HONORABLE COURT A QUO PLAINLY ERRED IN AWARDING ACTUAL DAMAGES TO APPELLEE.

III. THE HONORABLE COURT A QUO PLAINLY ERRED IN

AWARDING ATTORNEY'S FEES TO APPELLEE.IV. THE HONORABLE COURT A QUO PLAINLY ERRED INFINDING APPELLANT GREGORY CHAN JOINTLY ANDSEVERALLY LIABLE WITH APPELLANT MCC.47

On August 31, 2005, the CA rendered its Decision48 affirming the ruling ofthe trial court, but absolving Chan of any liability. The appellate court ruled,among others, that Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E", "E-1" and "F") were admissible in evidence,although they were mere facsimile printouts of MCC's steel orders.49 Thedispositive portion of the appellate court's decision reads:

WHEREFORE, premises considered, the Court holds:

(1) The award of actual damages, with interest, attorney's fees andcosts ordered by the lower court is hereby AFFIRMED.

(2) Appellant Gregory Chan is hereby ABSOLVED from any liability.

SO ORDERED.50

A copy of the said Decision was received by MCC's and Chan's principal
























counsel, Atty. Eladio B. Samson, on September 14, 2005.51 Theircollaborating counsel, Castillo Zamora & Poblador ,52 likewise, received acopy of the CA decision on September 19, 2005.53

On October 4, 2005, Castillo Zamora & Poblador, on behalf of MCC, filed amotion for reconsideration of the said decision.54 Ssangyong opposed themotion contending that the decision of the CA had become final andexecutory on account of the failure of MCC to file the said motion within thereglementary period. The appellate court resolved, on November 22, 2005,

to deny the motion on its merits,55 without, however, ruling on theprocedural issue raised.

Aggrieved, MCC filed a petition for review on certiorar i56 before this Court,imputing the following errors to the Court of Appeals:

THE COURT OF APPEALS DECIDED A LEGAL QUESTION NOTIN ACCORDANCE WITH JURISPRUDENCE AND SANCTIONED ADEPARTURE FROM THE USUAL AND ACCEPTED COURSE OFJUDICIAL PROCEEDINGS BY REVERSING THE COURT AQUO'S DISMISSAL OF THE COMPLAINT IN CIVIL CASE NO. 02-124 CONSIDERING THAT:

I. THE COURT OF APPEALS ERRED IN SUSTAINING THE ADMISSIBILITY IN EVIDENCE OF THE PRO-FORMAINVOICES WITH REFERENCE NOS. ST2-POSTSO401-1 AND ST2-POSTSO401-2, DESPITE THE FACT THAT THESAME WERE MERE PHOTOCOPIES OF FACSIMILEPRINTOUTS.

II. THE COURT OF APPEALS FAILED TO APPRECIATETHE OBVIOUS FACT THAT, EVEN ASSUMINGPETITIONER BREACHED THE SUPPOSED CONTRACT,THE FACT IS THAT PETITIONER FAILED TO PROVETHAT IT SUFFERED ANY DAMAGES AND THE AMOUNTTHEREOF.

III. THE AWARD OF ACTUAL DAMAGES IN THE AMOUNTOF US$93,493.87 IS SIMPLY UNCONSCIONABLE ANDSHOULD HAVE BEEN AT LEAST REDUCED, IF NOTDELETED BY THE COURT OF APPEALS.57

In its Comment, Ssangyong sought the dismissal of the petition, raising thefollowing arguments: that the CA decision dated 15 August 2005 is already

final and executory, because MCC's motion for reconsideration was filedbeyond the reglementary period of 15 days from receipt of a copy thereof,and that, in any case, it was apro forma motion; that MCC breached thecontract for the purchase of the steel products when it failed to open therequired letter of credit; that the printout copies and/or photocopies offacsimile or telecopy transmissions were properly admitted by the trial courtbecause they are considered original documents under R.A. No. 8792; andthat MCC is liable for actual damages and attorney's fees because of itsbreach, thus, compelling Ssangyong to litigate.

The principal issues that this Court is called upon to resolve are thefollowing:

I – Whether the CA decision dated 15 August 2005 is already final andexecutory;

II – Whether the print-out and/or photocopies of facsimile transmissions areelectronic evidence and admissible as such;

III – Whether there was a perfected contract of sale between MCC andSsangyong, and, if in the affirmative, whether MCC breached the saidcontract; and

IV – Whether the award of actual damages and attorney's fees in favor ofSsangyong is proper and justified.

- I -

It cannot be gainsaid that in Albano v. Court of Appeals,58 we held thatreceipt of a copy of the decision by one of several counsels on record isnotice to all, and the period to appeal commences on such date even if theother counsel has not yet received a copy of the decision. In this case,when Atty. Samson received a copy of the CA decision on September 14,2005, MCC had only fifteen (15) days within which to file a motion forreconsideration conformably with Section 1, Rule 52 of the Rules of Court,or to file a petition for review on certiorari in accordance with Section 2,Rule 45. The period should not be reckoned from September 29, 2005(when Castillo Zamora & Poblador received their copy of the decision)because notice to Atty. Samson is deemed notice to collaborating counsel.

We note, however, from the records of the CA, that it was Castillo Zamora& Poblador, not Atty. Samson, which filed both MCC's and Chan's Brief andReply Brief. Apparently, the arrangement between the two counsels was for




















the collaborating, not the principal, counsel to file the appeal brief andsubsequent pleadings in the CA. This explains why it was Castillo Zamora& Poblador which filed the motion for the reconsideration of the CAdecision, and they did so on October 5, 2005, well within the 15-day periodfrom September 29, 2005, when they received their copy of the CAdecision. This could also be the reason why the CA did not find itnecessary to resolve the question of the timeliness of petitioner's motion forreconsideration, even as the CA denied the same.

Independent of this consideration though, this Court assiduously reviewedthe records and found that strong concerns of substantial justice warrantthe relaxation of this rule.

In Philippine Ports Authority v. Sargasso Construction and DevelopmentCorporation,59 we ruled that:

In Orata v. Intermediate Appellate Court, we held that where strongconsiderations of substantive justice are manifest in the petition, thisCourt may relax the strict application of the rules of procedure in theexercise of its legal jurisdiction. In addition to the basic merits of themain case, such a petition usually embodies justifying circumstancewhich warrants our heeding to the petitioner's cry for justice in spite

of the earlier negligence of counsel. As we held in Obut v. Court of Appeals:

[W]e cannot look with favor on a course of action whichwould place the administration of justice in a straight jacketfor then the result would be a poor kind of justice if therewould be justice at all. Verily, judicial orders, such as the onesubject of this petition, are issued to be obeyed, nonethelessa non-compliance is to be dealt with as the circumstancesattending the case may warrant. What should guide judicialaction is the principle that a party-litigant is to be given thefullest opportunity to establish the merits of his complaint or

defense rather than for him to lose life, liberty, honor orproperty on technicalities.

The rules of procedure are used only to secure and not override orfrustrate justice. A six-day delay in the perfection of the appeal, as inthis case, does not warrant the outright dismissal of the appeal.InDevelopment Bank of the Philippines vs. Court of Appeals, wegave due course to the petitioner's appeal despite the late filing of

its brief in the appellate court because such appeal involved publicinterest. We stated in the said case that the Court may exempt aparticular case from a strict application of the rules of procedurewhere the appellant failed to perfect its appeal within thereglementary period, resulting in the appellate court's failure toobtain jurisdiction over the case. In Republic vs. Imperial, Jr., wealso held that there is more leeway to exempt a case from thestrictness of procedural rules when the appellate court has alreadyobtained jurisdiction over the appealed case. We emphasize that:

[T]he rules of procedure are mere tools intended to facilitatethe attainment of justice, rather than frustrate it. A strict andrigid application of the rules must always be eschewed whenit would subvert the rule's primary objective of enhancing fairtrials and expediting justice. Technicalities should never beused to defeat the substantive rights of the other party. Everyparty-litigant must be afforded the amplest opportunity forthe proper and just determination of his cause, free from theconstraints of technicalities.60

Moreover, it should be remembered that the Rules were promulgated to set

guidelines in the orderly administration of justice, not to shackle the handthat dispenses it. Otherwise, the courts would be consigned to being mereslaves to technical rules, deprived of their judicial discretion. Technicalitiesmust take a backseat to substantive rights. After all, it is circumspectleniency in this respect that will give the parties the fullest opportunity toventilate the merits of their respective causes, rather than have them loselife, liberty, honor or property on sheer technicalities.61

The other technical issue posed by respondent is the alleged proforma nature of MCC's motion for reconsideration, ostensibly because itmerely restated the arguments previously raised and passed upon by theCA.

In this connection, suffice it to say that the mere restatement of argumentsin a motion for reconsideration does not per se result in a pro forma motion.In Security Bank and Trust Company, Inc. v. Cuenca,62 we held that amotion for reconsideration may not be necessarily pro forma even if itreiterates the arguments earlier passed upon and rejected by the appellatecourt. A movant may raise the same arguments precisely to convince thecourt that its ruling was erroneous. Furthermore, the pro forma rule will not












apply if the arguments were not sufficiently passed upon and answered inthe decision sought to be reconsidered.

- II -

The second issue poses a novel question that the Court welcomes. Itprovides the occasion for this Court to pronounce a definitive interpretationof the equally innovative provisions of the Electronic Commerce Act of2000 (R.A. No. 8792) vis-à-vis the Rules on Electronic Evidence.

Although the parties did not raise the question whether the originalfacsimile transmissions are "electronic data messages" or "electronicdocuments" within the context of the Electronic Commerce Act (thepetitioner merely assails as inadmissible evidence the photocopies of thesaid facsimile transmissions), we deem it appropriate to determine firstwhether the said fax transmissions are indeed within the coverage of R.A.No. 8792 before ruling on whether the photocopies thereof are covered bythe law. In any case, this Court has ample authority to go beyond thepleadings when, in the interest of justice or for the promotion of publicpolicy, there is a need to make its own findings in order to support itsconclusions.63

Petitioner contends that the photocopies of the pro forma invoicespresented by respondent Ssangyong to prove the perfection of theirsupposed contract of sale are inadmissible in evidence and do not fallwithin the ambit of R.A. No. 8792, because the law merely admits as thebest evidence the original fax transmittal. On the other hand, respondentposits that, from a reading of the law and the Rules on Electronic Evidence,the original facsimile transmittal of the pro forma invoice is admissible inevidence since it is an electronic document and, therefore, the bestevidence under the law and the Rules. Respondent further claims that thephotocopies of these fax transmittals (specifically ST2-POSTS0401-1 and ST2-POSTS0401-2) are admissible under the Rules on Evidencebecause the respondent sufficiently explained the non-production of the

original fax transmittals.In resolving this issue, the appellate court ruled as follows:

Admissibility of Pro FormaInvoices; Breach of Contractby Appellants

Turning first to the appellants' argument against the admissibility of

the Pro Forma Invoices with Reference Nos. ST2-POSTS0401-1and ST2-POSTS0401-2 (Exhibits "E", "E-1" and "F", pp. 215-218,Records), appellants argue that the said documents areinadmissible (sic) being violative of the best evidence rule.

The argument is untenable.

The copies of the said pro-forma invoices submitted by the appelleeare admissible in evidence, although they are mere electronicfacsimile printouts of appellant's orders. Such facsimile printouts areconsidered Electronic Documents under the New Rules onElectronic Evidence, which came into effect on August 1, 2001.(Rule 2, Section 1 [h], A.M. No. 01-7-01-SC).

"(h) 'Electronic document' refers to information or therepresentation of information, data, figures, symbols or othermodes of written expression, described or howeverrepresented, by which a right is established or an obligationextinguished, or by which a fact may be proved andaffirmed, which is received, recorded, transmitted, stored,processed, retrieved or produced electronically. It includesdigitally signed documents and any printout or output,

readable by sight or other means, which accurately reflectsthe electronic data message or electronic document. Forpurposes of these Rules, the term 'electronic document' maybe used interchangeably with 'electronic data message'.

An electronic document shall be regarded as the equivalent of anoriginal document under the Best Evidence Rule, as long as it is aprintout or output readable by sight or other means, showing toreflect the data accurately. (Rule 4, Section 1, A.M. No. 01-7-01-SC)

The ruling of the Appellate Court is incorrect. R.A. No. 8792 ,64 otherwiseknown as the Electronic Commerce Act of 2000, considers an electronicdata message or an electronic document as the functional equivalent of awritten document for evidentiary purposes.65 The Rules on ElectronicEvidence66 regards an electronic document as admissible in evidence if itcomplies with the rules on admissibility prescribed by the Rules of Courtand related laws, and is authenticated in the manner prescribed by the saidRules.67 An electronic document is also the equivalent of an originaldocument under the Best Evidence Rule, if it is a printout or outputreadable by sight or other means, shown to reflect the data accurately.68
















Thus, to be admissible in evidence as an electronic data message or to beconsidered as the functional equivalent of an original document under theBest Evidence Rule, the writing must foremost be an "electronic datamessage" or an "electronic document."

The Electronic Commerce Act of 2000 defines electronic data messageand electronic document as follows:

Sec. 5. Definition of Terms. For the purposes of this Act, thefollowing terms are defined, as follows:

xxx

c. "Electronic Data Message" refers to information generated, sent,received or stored by electronic, optical or similar means.

xxx

f. "Electronic Document" refers to information or the representationof information, data, figures, symbols or other modes of writtenexpression, described or however represented, by which a right isestablished or an obligation extinguished, or by which a fact may beproved and affirmed, which is received, recorded, transmitted,

stored, processed, retrieved or produced electronically.The Implementing Rules and Regulations (IRR) of R.A. No. 8792,69 whichwas signed on July 13, 2000 by the then Secretaries of the Department ofTrade and Industry, the Department of Budget and Management, and thenGovernor of the Bangko Sentral ng Pilipinas, defines the terms as:

Sec. 6. Definition of Terms. For the purposes of this Act and theseRules, the following terms are defined, as follows:

xxx

(e) "Electronic Data Message" refers to information generated, sent,received or stored by electronic, optical or similar means, but not

limited to, electronic data interchange (EDI), electronic mail,telegram, telex or telecopy. Throughout these Rules, the term"electronic data message" shall be equivalent to and be usedinterchangeably with "electronic document."

x x x x

(h) "Electronic Document" refers to information or the representation

of information, data, figures, symbols or other modes of writtenexpression, described or however represented, by which a right isestablished or an obligation extinguished, or by which a fact may beproved and affirmed, which is received, recorded, transmitted,stored, processed, retrieved or produced electronically. Throughoutthese Rules, the term "electronic document" shall be equivalent toand be used interchangeably with "electronic data message."

The phrase "but not limited to, electronic data interchange (EDI), electronic

mail, telegram, telex or telecopy" in the IRR's definition of "electronic datamessage" is copied from the Model Law on Electronic Commerce adoptedby the United Nations Commission on International Trade Law(UNCITRAL),70 from which majority of the provisions of R.A. No. 8792were taken.71 While Congress deleted this phrase in the ElectronicCommerce Act of 2000, the drafters of the IRR reinstated it. The deletionby Congress of the said phrase is significant and pivotal, as discussedhereunder.

The clause on the interchangeability of the terms "electronic datamessage" and "electronic document" was the result of the Senate of thePhilippines' adoption, in Senate Bill 1902, of the phrase "electronic data

message" and the House of Representative's employment, in House Bill9971, of the term "electronic document."72 In order to expedite thereconciliation of the two versions, the technical working group of theBicameral Conference Committee adopted both terms and intended themto be the equivalent of each one.73 Be that as it may, there is a slightdifference between the two terms. While "data message" has referenceto information electronically sent, stored or transmitted, it does notnecessarily mean that it will give rise to a right or extinguish anobligation,74 unlike an electronic document. Evident from the law, however,is the legislative intent to give the two terms the same construction.

The Rules on Electronic Evidence promulgated by this Court defines thesaid terms in the following manner:

SECTION 1. Definition of Terms. – For purposes of these Rules, thefollowing terms are defined, as follows:

x x x x

(g) "Electronic data message" refers to information generated, sent,received or stored by electronic, optical or similar means.
















(h) "Electronic document" refers to information or the representationof information, data, figures, symbols or other modes of writtenexpression, described or however represented, by which a right isestablished or an obligation extinguished, or by which a fact may beproved and affirmed, which is received, recorded, transmitted,stored, processed, retrieved or produced electronically. It includesdigitally signed documents and print-out or output, readable by sightor other means, which accurately reflects the electronic datamessage or electronic document. For purposes of these Rules, theterm "electronic document" may be used interchangeably with"electronic data message."

Given these definitions, we go back to the original question: Is an originalprintout of a facsimile transmissionan electronic data message or electronicdocument?

The definitions under the Electronic Commerce Act of 2000, its IRR and theRules on Electronic Evidence, at f irst glance, convey the impressionthat facsimile transmissions are electronic data messages or electronicdocuments because they are sent by electronic means. The expandeddefinition of an "electronic data message" under the IRR, consistent with

the UNCITRAL Model Law, further supports this theory considering that theenumeration "xxx [is] not limited to, electronic data interchange (EDI),electronic mail, telegram, telex or telecopy." And to telecopy is to send adocument from one place to another via a fax machine.75

As further guide for the Court in its task of statutory construction, Section37 of the Electronic Commerce Act of 2000 provides that

Unless otherwise expressly provided for, the interpretation of this Act shall give due regard to its international origin and the need topromote uniformity in its application and the observance of goodfaith in international trade relations. The generally acceptedprinciples of international law and convention on electronic

commerce shall likewise be considered.Obviously, the "international origin" mentioned in this section can only referto the UNCITRAL Model Law, and the UNCITRAL's definition of "datamessage":

"Data message" means information generated, sent, received orstored by electronic, optical or similar means including, but not

limited to, electronic data interchange (EDI), electronic mail,telegram, telex or telecopy.76

is substantially the same as the IRR's characterization of an "electronicdata message."

However, Congress deleted the phrase, "but not limited to, electronic datainterchange (EDI), electronic mail, telegram, telex or telecopy," andreplaced the term "data message" (as found in the UNCITRAL Model Law )with "electronic data message." This legislative divergence from what isassumed as the term's "international origin" has bred uncertainty and nowimpels the Court to make an inquiry into the true intent of the framers of thelaw. Indeed, in the construction or interpretation of a legislative measure,the primary rule is to search for and determine the intent and spirit of thelaw.77 A construction should be rejected that gives to the language used ina statute a meaning that does not accomplish the purpose for which thestatute was enacted, and that tends to defeat the ends which are sought tobe attained by the enactment.78

Interestingly, when Senator Ramon B. Magsaysay, Jr., the principal authorof Senate Bill 1902 (the predecessor of R.A. No. 8792), sponsored the billon second reading, he proposed to adopt the term "data message" as

formulated and defined in the UNCITRAL Model Law.79 During the periodof amendments, however, the term evolved into "electronic data message,"and the phrase "but not limited to, electronic data interchange (EDI),electronic mail, telegram, telex or telecopy" in the UNCITRAL Model Lawwas deleted. Furthermore, the term "electronic data message," thoughmaintaining its description under the UNCITRAL Model Law, except for theaforesaid deleted phrase, conveyed a different meaning, as revealed in thefollowing proceedings:

x x x x

Senator Santiago. Yes, Mr. President. I will furnish a copy togetherwith the explanation of this proposed amendment.

And then finally, before I leave the Floor, may I please be allowed togo back to Section 5; the Definition of Terms. In light of theacceptance by the good Senator of my proposed amendments, itwill then become necessary to add certain terms in our list of termsto be defined. I would like to add a definition on what is "data," whatis "electronic record" and what is an "electronic record system."














If the gentleman will give me permission, I will proceed with theproposed amendment on Definition of Terms, Section 5.

Senator Magsaysay. Please go ahead, Senator Santiago.

Senator Santiago. We are in Part 1, short title on the Declaration ofPolicy, Section 5, Definition of Terms.

At the appropriate places in the listing of these terms that have tobe defined since these are arranged alphabetically, Mr. President, I

would like to insert the term DATA and its definition. So, theamendment will read: "DATA" MEANS REPRESENTATION, IN ANYFORM, OF INFORMATION OR CONCEPTS.

The explanation is this: This definition of "data" or "data" as it is nowfashionably pronounced in America - - the definition of "data"ensures that our bill applies to any form of information in anelectronic record, whether these are figures, facts or ideas.

So again, the proposed amendment is this: "DATA" MEANSREPRESENTATIONS, IN ANY FORM, OF INFORMATION ORCONCEPTS.

Senator Magsaysay. May I know how will this affect the definition of"Data Message" which encompasses electronic records, electronicwritings and electronic documents?

Senator Santiago. These are completely congruent with each other.These are compatible. When we define "data," we are simplyreinforcing the definition of what is a data message.

Senator Magsaysay. It is accepted, Mr. President.

Senator Santiago. Thank you. The next term is "ELECTRONICRECORD." The proposed amendment is as follows:

"ELECTRONIC RECORD" MEANS DATA THAT IS RECORDED OR

STORED ON ANY MEDIUM IN OR BY A COMPUTER SYSTEMOR OTHER SIMILAR DEVICE, THAT CAN BE READ ORPERCEIVED BY A PERSON OR A COMPUTER SYSTEM OROTHER SIMILAR DEVICE. IT INCLUDES A DISPLAY, PRINTOUTOR OTHER OUTPUT OF THAT DATA.

The explanation for this term and its definition is as follows: Theterm "ELECTRONIC RECORD" fixes the scope of our bill. The

record is the data. The record may be on any medium. It iselectronic because it is recorded or stored in or by a computersystem or a similar device.

The amendment is intended to apply, for example, to data onmagnetic strips on cards or in Smart cards.As drafted, it would notapply to telexes or faxes, except computer-generated faxes,unlike the United Nations model law on electronic commerce . Itwould also not apply to regular digital telephone conversations

since the information is not recorded. It would apply to voice mailsince the information has been recorded in or by a device similar toa computer. Likewise, video records are not covered. Though whenthe video is transferred to a website, it would be covered because ofthe involvement of the computer. Music recorded by a computersystem on a compact disc would be covered.

In short, not all data recorded or stored in digital form is covered. Acomputer or a similar device has to be involved in its creation orstorage. The term "similar device" does not extend to all devicesthat create or store data in digital form. Although things that are notrecorded or preserved by or in a computer system are omitted from

this bill, these may well be admissible under other rules of law. Thisprovision focuses on replacing the search for originality proving thereliability of systems instead of that of individual records and usingstandards to show systems reliability.

Paper records that are produced directly by a computer systemsuch as printouts are themselves electronic records being just themeans of intelligible display of the contents of the record.Photocopies of the printout would be paper record subject to theusual rules about copies, but the original printout would be subjectto the rules of admissibility of this bill.

However, printouts that are used only as paper records and whose

computer origin is never again called on are treated as paperrecords. In that case, the reliability of the computer system thatproduces the record is irrelevant to its reliability.

Senator Magsaysay. Mr. President, if my memory does not fail me,earlier, the lady Senator accepted that we use the term "DataMessage" rather than "ELECTRONIC RECORD" in being consistentwith the UNCITRAL term of "Data Message." So with the new




amendment of defining "ELECTRONIC RECORD," will this affecther accepting of the use of "Data Message" instead of"ELECTRONIC RECORD"?

Senator Santiago. No, it will not. Thank you for reminding me. Theterm I would like to insert is ELECTRONIC DATA MESSAGE in lieuof "ELECTRONIC RECORD."

Senator Magsaysay. Then we are, in effect, amending the term ofthe definition of "Data Message" on page 2A, line 31, to whichwe have no objection.

Senator Santiago. Thank you, Mr. President.

x x x x

Senator Santiago. Mr. President, I have proposed all theamendments that I desire to, including the amendment on the effectof error or change. I will provide the language of the amendmenttogether with the explanation supporting that amendment to thedistinguished sponsor and then he can feel free to take it up in anysession without any further intervention.

Senator Magsaysay. Before we end, Mr. President, I understandfrom the proponent of these amendments that these are based onthe Canadian E-commerce Law of 1998. Is that not right?

Senator Santiago. That is correct.80

Thus, when the Senate consequently voted to adopt the term "electronicdata message," it was consonant with the explanation of Senator MiriamDefensor-Santiago that it would not apply "to telexes or faxes, exceptcomputer-generated faxes, unlike the United Nations model law onelectronic commerce." In explaining the term "electronic record" patternedafter the E-Commerce Law of Canada, Senator Defensor-Santiago had inmind the term "electronic data message." This term then, while maintaining

part of the UNCITRAL Model Law's terminology of "data message," hasassumed a different context, this time, consonant with the term "electronicrecord" in the law of Canada. It accounts for the addition of the word"electronic" and the deletion of the phrase "but not limited to, electronicdata interchange (EDI), electronic mail, telegram, telex or telecopy."Noteworthy is that the Uniform Law Conference of Canada, explains theterm "electronic record," as drafted in the Uniform Electronic Evidence Act,

in a manner strikingly similar to Sen. Santiago's explanation during theSenate deliberations:

"Electronic record" fixes the scope of the Act. The record is the data.The record may be any medium. It is "electronic" because it isrecorded or stored in or by a computer system or similar device.The Act is intended to apply, for example, to data on magnetic stripson cards, or in smart cards. As drafted, it would not apply to telexesor faxes (except computer-generated faxes), unlike the United

Nations Model Law on Electronic Commerce. It would also notapply to regular digital telephone conversations, since theinformation is not recorded. It would apply to voice mail, since theinformation has been recorded in or by a device similar to acomputer. Likewise video records are not covered, though when thevideo is transferred to a Web site it would be, because of theinvolvement of the computer. Music recorded by a computer systemon a compact disk would be covered.

In short, not all data recorded or stored in "digital" form is covered. Acomputer or similar device has to be involved in its creation orstorage. The term "similar device" does not extend to all devices

that create or store data in digital form. Although things that are notrecorded or preserved by or in a computer system are omitted fromthis Act, they may well be admissible under other rules of law. This Act focuses on replacing the search for originality, proving thereliability of systems instead of that of individual records, and usingstandards to show systems reliability.

Paper records that are produced directly by a computer system,such as printouts, are themselves electronic records, being just themeans of intelligible display of the contents of the record.Photocopies of the printout would be paper records subject to theusual rules about copies, but the "original" printout would be subjectto the rules of admissibility of this Act.

However, printouts that are used only as paper records, and whosecomputer origin is never again called on, are treated as paperrecords. See subsection 4(2). In this case the reliability of thecomputer system that produced the record is relevant to itsreliability.81

There is no question then that when Congress formulated the term








"electronic data message," it intended the same meaning as the term"electronic record" in the Canada law. This construction of the term"electronic data message," which excludes telexes or faxes, exceptcomputer-generated faxes, is in harmony with the Electronic CommerceLaw's focus on "paperless" communications and the "functional equivalentapproach"82that it espouses. In fact, the deliberations of the Legislatureare replete with discussions on paperless and digital transactions.

Facsimile transmissions are not, in this sense, "paperless," but verily are

paper-based. A facsimile machine, which was first patented in 1843 by AlexanderBain,83 is a device that can send or receive pictures and text over atelephone line. It works by digitizing an image—dividing it into a grid ofdots. Each dot is either on or off, depending on whether it is black or white.Electronically, each dot is represented by a bit that has a value of either 0(off) or 1 (on). In this way, the fax machine translates a picture into a seriesof zeros and ones (called a bit map) that can be transmitted like normalcomputer data. On the receiving side, a fax machine reads the incomingdata, translates the zeros and ones back into dots, and reprints thepicture.84 A fax machine is essentially an image scanner, a modem and a

computer printer combined into a highly specialized package. The scannerconverts the content of a physical document into a digital image, themodem sends the image data over a phone line, and the printer at theother end makes a duplicate of the original document.85 Thus, in Garvidav. Sales, Jr.,86 where we explained the unacceptability of filing pleadingsthrough fax machines, we ruled that:

A facsimile or fax transmission is a process involving thetransmission and reproduction of printed and graphic matter byscanning an original copy, one elemental area at a time, andrepresenting the shade or tone of each area by a specified amountof electric current. The current is transmitted as a signal overregular telephone lines or via microwave relay and is used by thereceiver to reproduce an image of the elemental area in the properposition and the correct shade. The receiver is equipped with astylus or other device that produces a printed record on paperreferred to as a facsimile.

x x x A facsimile is not a genuine and authentic pleading. It is, atbest, an exact copy preserving all the marks of an original. Without

the original, there is no way of determining on its face whether thefacsimile pleading is genuine and authentic and was originallysigned by the party and his counsel. It may, in fact, be a shampleading.87

Accordingly, in an ordinary facsimile transmission, there exists anoriginal paper-based information or data that is scanned, sent through aphone line, and re-printed at the receiving end. Be it noted that in enactingthe Electronic Commerce Act of 2000, Congress intended virtual or

paperless writings to be the functionalequivalent and to have thesame legal function as paper-based documents.88 Further, in a virtual orpaperless environment, technically, there is no original copy to speak of, asall direct printouts of the virtual reality are the same, in all respects, and areconsidered as originals.89 Ineluctably, the law's definition of "electronicdata message," which, as aforesaid, is interchangeable with "electronicdocument," could not have includedfacsimile transmissions, which havean original paper-based copy as sent and a paper-based facsimile copy asreceived. These two copies are distinct from each other, and have differentlegal effects. While Congress anticipated future developments incommunications and computer technology90 when it drafted the law, itexcluded the early forms of technology, like telegraph, telex and telecopy

(except computer-generated faxes, which is a newer development ascompared to the ordinary fax machine to fax machine transmission), whenit defined the term "electronic data message."

Clearly then, the IRR went beyond the parameters of the law when itadopted verbatim the UNCITRAL Model Law's definition of "datamessage," without considering the intention of Congress when the latterdeleted the phrase "but not limited to, electronic data interchange (EDI),electronic mail, telegram, telex or telecopy." The inclusion of this phrase inthe IRR offends a basic tenet in the exercise of the rule-making power ofadministrative agencies. After all, the power of administrative officials topromulgate rules in the implementation of a statute is necessarily limited to

what is found in the legislative enactment itself. The implementing rulesand regulations of a law cannot extend the law or expand its coverage, asthe power to amend or repeal a statute is vested in theLegislature.91 Thus, if a discrepancy occurs between the basic law and animplementing rule or regulation, it is the former that prevails, because thelaw cannot be broadened by a mere administrative issuance—anadministrative agency certainly cannot amend an act of Congress.92 Had


























the Legislature really wanted ordinary fax transmissions to be covered bythe mantle of the Electronic Commerce Act of 2000, it could have easilylifted without a bit of tatter the entire wordings of the UNCITRAL ModelLaw.

Incidentally, the National Statistical Coordination Board Task Force on theMeasurement of E-Commerce,93 on November 22, 2006, recommended aworking definition of "electronic commerce," as "[a]ny commercialtransaction conducted through electronic, optical and similar medium,

mode, instrumentality and technology. The transaction includes the sale orpurchase of goods and services, between individuals, households,businesses and governments conducted over computer-mediated networksthrough the Internet, mobile phones, electronic data interchange (EDI) andother channels through open and closed networks." The Task Force'sproposed definition is similar to the Organization of Economic Cooperationand Development's (OECD's) broad definition as it covers transactionsmade over any network, and, in addition, it adopted the following provisionsof the OECD definition: (1) for transactions, it covers sale or purchase ofgoods and services; (2) for channel/network, it considers any computer-mediated network and NOT limited to Internet alone; (3) it excludestransactions received/placed using fax, telephone or non-interactive mail;

(4) it considers payments done online or offline; and (5) it considersdelivery made online (like downloading of purchased books, music orsoftware programs) or offline (deliveries of goods).94

We, therefore, conclude that the terms "electronic data message" and"electronic document," as defined under the Electronic Commerce Act of2000, do not include a facsimile transmission. Accordingly, a facsimiletransmission cannot be considered as electronic evidence. It is not thefunctional equivalent of an original under the Best Evidence Rule and is notadmissible as electronic evidence.

Since a facsimile transmission is not an "electronic data message" or an"electronic document," and cannot be considered as electronic evidence bythe Court, with greater reason is a photocopy of such a fax transmissionnot electronic evidence. In the present case, therefore, Pro Forma InvoiceNos. ST2-POSTS0401-1 and ST2-POSTS0401-2 (Exhibits "E" and "F"),which are mere photocopies of the original fax transmittals, are notelectronic evidence, contrary to the position of both the trial and theappellate courts.

- III -

Nevertheless, despite the pro forma invoices not being electronic evidence,this Court finds that respondent has proven by preponderance of evidencethe existence of a perfected contract of sale.

In an action for damages due to a breach of a contract, it is essential thatthe claimant proves (1) the existence of a perfected contract, (2) the breachthereof by the other contracting party and (3) the damages which he/shesustained due to such breach. Actori incumbit onus probandi. The burdenof proof rests on the party who advances a proposition affirmatively.95 Inother words, a plaintiff in a civil action must establish his case by apreponderance of evidence, that is, evidence that has greater weight, or ismore convincing than that which is offered in opposition to it.96

In general, contracts are perfected by mere consent,97 which is manifestedby the meeting of the offer and the acceptance upon the thing and thecause which are to constitute the contract. The offer must be certain andthe acceptance absolute.98 They are, moreover, obligatory in whateverform they may have been entered into, provided all the essential requisitesfor their validity are present.99 Sale, being a consensual contract, followsthe general rule that it is perfected at the moment there is a meeting of the

minds upon the thing which is the object of the contract and upon the price.From that moment, the parties may reciprocally demand performance,subject to the provisions of the law governing the form of contracts.100

The essential elements of a contract of sale are (1) consent or meeting ofthe minds, that is, to transfer ownership in exchange for the price, (2)object certain which is the subject matter of the contract, and (3) cause ofthe obligation which is established.101

In this case, to establish the existence of a perfected contract of salebetween the parties, respondent Ssangyong formally offered in evidencethe testimonies of its witnesses and the following exhibits:

Exhibit Description Purpose

E Pro forma Invoice dated 17 April 2000 with ContractNo.ST2-POSTS0401-

To show that defendantswith plaintiff for the deliver of stainless steel from Koby way of an irrevocable lein favor of plaintiff, a






















1, photocopy conditions.

E-1 Pro forma Invoice dated 17 April 2000 with ContractNo.ST2-POSTS0401, contained infacsimile/thermal paper faxedby defendants to plaintiff

showing the printedtransmission details on theupper portion of said paper ascoming from defendant MCCon 26 Apr 00 08:41AM

To show that defendants sent theirconfirmation of the (i) delivery to it ofthe specified stainless steel products,(ii) defendants' payment thereof byway of an irrevocable letter of credit infavor of plaintiff, among other

conditions.

E-2 Conforme signature of Mr.Gregory Chan, contained infacsimile/thermal paper faxedby defendants to plaintiffshowing the printedtransmission details on theupper portion of said paper ascoming from defendant MCCon 26 Apr 00 08:41AM

To show that defendants sent theirconfirmation of the (i) delivery to it ofthe total of 220MT specified stainlesssteel products, (ii) defendants'payment thereof by way of anirrevocable letter of credit in favor ofplaintiff, among other conditions.

F Pro forma Invoice dated 17 April 2000 with ContractNo.ST2-POSTSO401-2,photocopy

To show that defendants contractedwith plaintiff for delivery of another 110MT of stainless steel from Koreapayable by way of an irrevocable letterof credit in favor of plaintiff, amongother conditions.

G Letter to defendant SANYOSEIKE dated 20 June2000,contained infacsimile/thermal paper

To prove that defendants wereinformed of the date of L/C openingand defendant's conforme/approvalthereof.

G-1 Signature of defendantGregory Chan, contained infacsimile/thermal paper.

H Letter to defendants dated 22June 2000, original

To prove that defendinformed of the succeadjustments secured byfavor of former and were

the schedules of its L/C op

I Letter to defendants dated 26June 2000, original

To prove that plaintiffrequested defendants foropening of the Lettersdefendants' failure andcomply with their obligatioproblems of plaintiff is ireason of defendants'refusal to open the L/Cs.

J Letter to defendants dated 26June 2000, original

K Letter to defendants dated 27June 2000, original

L Facsimile message todefendants dated 28 June2000, photocopy

M Letter from defendants dated29 June 2000, contained infacsimile/thermal paper faxedby defendants to plaintiffshowing the printedtransmission details on theupper portion of said paper as

coming from defendant MCCon 29 June 00 11:12 AM

To prove that defendants aliabilities to plaintiff,requested for "more extenfor the opening of the Lettand begging forunderstanding and conside

M-1 Signature of defendantGregory Chan, contained infacsimile/thermal paper faxed




by defendants to plaintiffshowing the printedtransmission details on theupper portion of said paper ascoming from defendant MCCon June 00 11:12 AM

N Letter to defendants dated 29

June 2000, original

O Letter to defendants dated 30June 2000, photocopy

To prove that plaintiff reiterated itsrequest for defendants to L/C openingafter the latter's request for extensionof time was granted, defendants'failure and refusal to comply therewithextension of time notwithstanding.

P Letter to defendants dated 06July 2000, original

Q Demand letter to defendantsdated 15 Aug 2000, original

To prove that plaintiff was constrainedto engaged services of a lawyer forcollection efforts.

R Demand letter to defendantsdated 23 Aug 2000, original

To prove that defendants opened thefirst L/C in favor of plaintiff, requestedfor further postponement of the finalL/C and for minimal amounts, wereurged to open the final L/C on time,and were informed that failure to

comply will cancel the contract.

S Demand letter to defendantsdated 11 Sept 2000, original

To show defendants' refusal andfailure to open the final L/C on time,the cancellation of the contract as aconsequence thereof, and finaldemand upon defendants to remit its

obligations.

W Letter from plaintiffSSANGYONG to defendantSANYO SEIKI dated 13 April2000, with fax back fromdefendants SANYOSEIKI/MCC to plaintiff

SSANGYONG, contained infacsimile/thermal paper withback-up photocopy

To prove that there wassale and purchasebetween the parties fortons of steel products atUS$1,860/ton.

W-1 Conforme signature ofdefendant Gregory Chan,contained in facsimile/thermalpaper with back-up photocopy

To prove that defendathrough Gregory Chan, agsale and purchase of 220of steel products at thUS$1,860/ton.

W-2 Name of sender MCC

Industrial Sales Corporation

To prove that defendant

conformity to the sale anagreement by facsimile tra

X Pro forma Invoice dated 16 August 2000, photocopy

To prove that defendant Mto adjust and split thepurchase order into 2 s100 metric tons eacdiscounted price of US$1,7

X-1 Notation "1/2", photocopy To prove that the presenInvoice was the first of 2

invoices.

X-2 Ref. No. ST2-POSTS080-1,photocopy

To prove that theformaInvoice was the fir formainvoices.




X-3 Conforme signature ofdefendant GregoryChan,photocopy

To prove that defendant MCC, actingthrough Gregory Chan, agreed to thesale and purchase of the balance of100 metric tons at the discountedprice of US$1,700/ton, apart from theother order and shipment of 100metric tons which was delivered byplaintiff SSANGYONG and paid for bydefendant MCC.

DD Letter from defendant MCC toplaintiff SSANGYONG dated22 August 2000, contained infacsimile/thermal paper withback-up photocopy

To prove that there was a perfectedsale and purchase agreementbetween plaintiff SSANGYONG anddefendant MCC for the balance of 100metric tons, apart from the other orderand shipment of 100 metric tons whichwas delivered by plaintiffSSANGYONG and paid for bydefendant MCC.

DD-1 Ref. No. ST2-POSTS080-1,contained infacsimile/thermal paper withback-up photocopy

To prove that there was a perfectedsale and purchase agreementbetween plaintiff SSANGYONG anddefendant MCC for the balance of 100metric tons, apart from the other orderand shipment of 100 metric tons whichwas delivered by plaintiffSSANGYONG and paid for bydefendant MCC.

DD-2 Signature of defendant

Gregory Chan, contained infacsimile/thermal paper withback-up photocopy

To prove that defendant MCC, acting

through Gregory Chan, agreed to thesale and purchase of the balance of100 metric tons, apart from the otherorder and shipment of 100 metric tonswhich was delivered by plaintiffSsangyong and paid for by defendant

MCC.102

Significantly, among these documentary evidence presented byrespondent, MCC, in its petition before this Court, assails the admissibilityonly of Pro Forma Invoice Nos. ST2-POSTS0401-1 and ST2-POSTS0401-2(Exhibits "E" and "F"). After sifting through the records, the Court foundthat these invoices are mere photocopies of their original fax transmittals.Ssangyong avers that these documents were prepared after MCC asked

for the splitting of the original order into two, so that the latter can apply foran L/C with greater facility. It, however, failed to explain why the originals ofthese documents were not presented.

To determine whether these documents are admissible in evidence, weapply the ordinary Rules on Evidence, for as discussed above we cannotapply the Electronic Commerce Act of 2000 and the Rules on ElectronicEvidence.

Because these documents are mere photocopies, they are simplysecondary evidence, admissible only upon compliance with Rule 130,Section 5, which states, "[w]hen the original document has been lost ordestroyed, or cannot be produced in court, the offeror, upon proof of its

execution or existence and the cause of its unavailability without bad faithon his part, may prove its contents by a copy, or by a recital of its contentsin some authentic document, or by the testimony of witnesses in the orderstated." Furthermore, the offeror of secondary evidence must prove thepredicates thereof, namely: (a) the loss or destruction of the original withoutbad faith on the part of the proponent/offeror which can be shown bycircumstantial evidence of routine practices of destruction of documents;(b) the proponent must prove by a fair preponderance of evidence as toraise a reasonable inference of the loss or destruction of the original copy;and (c) it must be shown that a diligent and bona fide but unsuccessfulsearch has been made for the document in the proper place or places. Ithas been held that where the missing document is the foundation of the

action, more strictness in proof is required than where the document is onlycollaterally involved.103

Given these norms, we find that respondent failed to prove the existence ofthe original fax transmissions of Exhibits E and F, and likewise did notsufficiently prove the loss or destruction of the originals. Thus, Exhibits Eand F cannot be admitted in evidence and accorded probative weight.








It is observed, however, that respondent Ssangyong did not rely merely onExhibits E and F to prove the perfected contract. It also introduced inevidence a variety of other documents, as enumerated above, togetherwith the testimonies of its witnesses. Notable among them are ProForma Invoice Nos. ST2-POSTS080-1 andST2-POSTS080-2 which wereissued by Ssangyong and sent via fax to MCC. As already mentioned,these invoices slightly varied the terms of the earlier invoices such that thequantity was now officially 100MT per invoice and the price reducedto US$1,700.00 per MT. The copies of the said August 16, 2000 invoices

submitted to the court bear the conformity signature of MCC ManagerChan.

Pro Forma Invoice No. ST2-POSTS080-1 (Exhibit "X"), however, is a merephotocopy of its original. But then again, petitioner MCC does not assail theadmissibility of this document in the instant petition. Verily, evidence notobjected to is deemed admitted and may be validly considered by the courtin arriving at its judgment.104Issues not raised on appeal are deemedabandoned.

As to Pro Forma Invoice No. ST2-POSTS080-2 (Exhibits "1-A" and "2-C"),which was certified by PCIBank as a true copy of its original,105 it was, in

fact, petitioner MCC which introduced this document in evidence. PetitionerMCC paid for the order stated in this invoice. Its admissibility, therefore, isnot open to question.

These invoices (ST2-POSTS0401, ST2-POSTS080-1 and ST2-POSTS080-2), along with the other unchallenged documentary evidence ofrespondent Ssangyong, preponderate in favor of the claim that a contractof sale was perfected by the parties.

This Court also finds merit in the following observations of the trial court:

Defendants presented Letter of Credit (Exhibits "1", "1-A" to "1-R")referring to Pro Forma Invoice for Contract No. ST2POSTS080-2, inthe amount of US$170,000.00, and which bears the signature ofGregory Chan, General Manager of MCC. Plaintiff, on the otherhand, presented Pro Forma Invoice referring to Contract No. ST2-POSTS080-1, in the amount of US$170,000.00, which likewisebears the signature of Gregory Chan, MCC. Plaintiff accounted forthe notation "1/2" on the right upper portion of the Invoice, that is,that it was the f irst of two (2) pro forma invoices covering the subjectcontract between plaintiff and the defendants. Defendants, on the

other hand, failed to account for the notation "2/2" in its Pro FormaInvoice (Exhibit "1-A"). Observably further, both Pro Forma Invoicesbear the same date and details, which logically mean that they bothapply to one and the same transaction.106

Indeed, why would petitioner open an L/C for the second half of thetransaction if there was no first half to speak of?

The logical chain of events, as gleaned from the evidence of both parties,started with the petitioner and the respondent agreeing on the sale and

purchase of 220MT of stainless steel at US$1,860.00 per MT. This initialcontract was perfected. Later, as petitioner asked for several extensions topay, adjustments in the delivery dates, and discounts in the price asoriginally agreed, the parties slightly varied the terms of their contract,without necessarily novating it, to the effect that the original order wasreduced to 200MT, split into two deliveries, and the price discounted toUS$1,700 per MT. Petitioner, however, paid only half of its obligation andfailed to open an L/C for the other 100MT. Notably, the conduct of bothparties sufficiently established the existence of a contract of sale, even ifthe writings of the parties, because of their contested admissibility, werenot as explicit in establishing a contract.107 Appropriate conduct by the

parties may be sufficient to establish an agreement, and while there maybe instances where the exchange of correspondence does not disclose theexact point at which the deal was closed, the actions of the parties mayindicate that a binding obligation has been undertaken.108

With our finding that there is a valid contract, it is crystal-clear that whenpetitioner did not open the L/C for the first half of the transaction (100MT),despite numerous demands from respondent Ssangyong, petitionerbreached its contractual obligation. It is a well-entrenched rule that thefailure of a buyer to furnish an agreed letter of credit is a breach of thecontract between buyer and seller. Indeed, where the buyer fails to open aletter of credit as stipulated, the seller or exporter is entitled to claimdamages for such breach. Damages for failure to open a commercial creditmay, in appropriate cases, include the loss of profit which the seller wouldreasonably have made had the transaction been carried out.109

- IV -

This Court, however, finds that the award of actual damages is not inaccord with the evidence on record. It is axiomatic that actual orcompensatory damages cannot be presumed, but must be proven with a
















reasonable degree of certainty.110 In Villafuerte v. Court of Appeals,111 weexplained that:

Actual or compensatory damages are those awarded in order tocompensate a party for an injury or loss he suffered. They arise outof a sense of natural justice and are aimed at repairing the wrongdone. Except as provided by law or by stipulation, a party is entitledto an adequate compensation only for such pecuniary loss as hehas duly proven. It is hornbook doctrine that to be able to recover

actual damages, the claimant bears the onus of presenting beforethe court actual proof of the damages alleged to have beensuffered, thus:

A party is entitled to an adequate compensation for suchpecuniary loss actually suffered by him as he has dulyproved. Such damages, to be recoverable, must not only becapable of proof, but must actually be proved with areasonable degree of certainty. We have emphasized thatthese damages cannot be presumed and courts, in makingan award must point out specific facts which could afford abasis for measuring whatever compensatory or actual

damages are borne.112In the instant case, the trial court awarded to respondent SsangyongUS$93,493.87 as actual damages. On appeal, the same was affirmed bythe appellate court. Noticeably, however, the trial and the appellate courts,in making the said award, relied on the following documents submitted inevidence by the respondent: (1) Exhibit "U," the Statement of Accountdated March 30, 2001; (2) Exhibit "U-1," the details of the said Statement of Account); (3) Exhibit "V," the contract of the alleged resale of the goods toa Korean corporation; and (4) Exhibit "V-1," the authentication of the resalecontract from the Korean Embassy and certification from the PhilippineConsular Office.

The statement of account and the details of the losses sustained byrespondent due to the said breach are, at best, self-serving. It wasrespondent Ssangyong itself which prepared the said documents. Theitems therein are not even substantiated by official receipts. In the absenceof corroborative evidence, the said statement of account is not sufficientbasis to award actual damages. The court cannot simply rely onspeculation, conjecture or guesswork as to the fact and amount of

damages, but must depend on competent proof that the claimant hadsuffered, and on evidence of, the actual amount thereof .113

Furthermore, the sales contract and its authentication certificates, Exhibits"V" and "V-1," allegedly evidencing the resale at a loss of the stainlesssteel subject of the parties' breached contract, fail to convince this Court ofthe veracity of its contents. The steel items indicated in the salescontract114 with a Korean corporation are different in all respects from theitems ordered by petitioner MCC, even in size and quantity. We observed

the following discrepancies:List of commodities as stated in Exhibit "V":

COMMODITY: Stainless Steel HR Sheet in Coil, Slit EdgeSPEC: SUS304 NO. 1

SIZE/Q'TY:

2.8MM X 1,219MM X C 8.193MT

3.0MM X 1,219MM X C 7.736MT

3.0MM X 1,219MM X C 7.885MT

3.0MM X 1,219MM X C 8.629MT

4.0MM X 1,219MM X C 7.307MT

4.0MM X 1,219MM X C 7.247MT

4.5MM X 1,219MM X C 8.450MT

4.5MM X 1,219MM X C 8.870MT

5.0MM X 1,219MM X C 8.391MT














6.0MM X 1,219MM X C 6.589MT

6.0MM X 1,219MM X C 7.878MT

6.0MM X 1,219MM X C 8.397MT

TOTAL: 95.562MT115

List of commodities as stated in Exhibit "X" (the invoice that was notpaid):

DESCRIPTION: Hot Rolled Stainless Steel Coil SUS 304

SIZE AND QUANTITY:

2.6 MM X 4' X C 10.0MT

3.0 MM X 4' X C 25.0MT

4.0 MM X 4' X C 15.0MT

4.5 MM X 4' X C 15.0MT

5.0 MM X 4' X C 10.0MT

6.0 MM X 4' X C 25.0MT

TOTAL: 100MT116

From the foregoing, we find merit in the contention of MCC that Ssangyongdid not adequately prove that the items resold at a loss were the sameitems ordered by the petitioner. Therefore, as the claim for actual damageswas not proven, the Court cannot sanction the award.

Nonetheless, the Court finds that petitioner knowingly breached its

contractual obligation and obstinately refused to pay despite repeateddemands from respondent. Petitioner even asked for several extensions oftime for it to make good its obligation. But in spite of respondent'scontinuous accommodation, petitioner completely reneged on itscontractual duty. For such inattention and insensitivity, MCC must be heldliable for nominal damages. "Nominal damages are 'recoverable where alegal right is technically violated and must be vindicated against aninvasion that has produced no actual present loss of any kind or wherethere has been a breach of contract and no substantial injury or actual

damages whatsoever have been or can be shown.'"117 Accordingly, theCourt awards nominal damages of P200,000.00 to respondent Ssangyong.

As to the award of attorney's fees, it is well settled that no premium shouldbe placed on the right to litigate and not every winning party is entitled toan automatic grant of attorney's fees. The party must show that he fallsunder one of the instances enumerated in Article 2208 of the CivilCode.118 In the instant case, however, the Court finds the award ofattorney's fees proper, considering that petitioner MCC's unjustified refusalto pay has compelled respondent Ssangyong to litigate and to incurexpenses to protect its rights.

WHEREFORE, PREMISES CONSIDERED, the appeal is PARTIALLYGRANTED. The Decision of the Court of Appeals in CA-G.R. CV No. 82983is MODIFIED in that the award of actual damages is DELETED. However,petitioner is ORDERED to pay respondent NOMINAL DAMAGES in theamount of P200,000.00, and theATTORNEY'S FEES as awarded by thetrial court.

SO ORDERED.

Ynares-Santiago, Chairperson, Austria-Martinez, Chico-Nazario, Reyes,JJ., concur.









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