SECOND DIVISION

[G.R. No. 154259.  February 28, 2005]

NIKKO HOTEL MANILA GARDEN and RUBY LIM, petitioners, vs. ROBERTO REYES,
a.k.a. “AMAY BISAYA,” respondent.

DECISION

CHICO-NAZARIO, J.:

In this petition for review on certiorari, petitioners Nikko Hotel Manila Garden (Hotel Nikko)[1]
and Ruby Lim assail the Decision[2] of the Court of Appeals dated 26 November 2001 reversing
the Decision[3] of the Regional Trial Court (RTC) of Quezon City, Branch 104, as well as the
Resolution[4] of the Court of Appeals dated 09 July 2002 which denied petitioners’ motion for
reconsideration.

The cause of action before the trial court was one for damages brought under the human relations
provisions of the New Civil Code.  Plaintiff thereat (respondent herein) Roberto Reyes, more
popularly known by the screen name “Amay Bisaya,” alleged that at around 6:00 o’clock in the
evening of 13 October 1994, while he was having coffee at the lobby of Hotel Nikko,[5] he was
spotted by his friend of several years, Dr. Violeta Filart, who then approached him.[6] Mrs. Filart
invited him to join her in a party at the hotel’s penthouse in celebration of the natal day of the
hotel’s manager, Mr. Masakazu Tsuruoka.[7] Mr. Reyes asked if she could vouch for him for
which she replied: “of course.”[8] Mr. Reyes then went up with the party of Dr. Filart carrying the
basket of fruits which was the latter’s present for the celebrant.[9] At the penthouse, they first had
their picture taken with the celebrant after which Mr. Reyes sat with the party of Dr. Filart.[10]
After a couple of hours, when the buffet dinner was ready, Mr. Reyes lined-up at the buffet table
but, to his great shock, shame and embarrassment, he was stopped by petitioner herein, Ruby
Lim, who claimed to speak for Hotel Nikko as Executive Secretary thereof.[11] In a loud voice
and within the presence and hearing of the other guests who were making a queue at the buffet
table, Ruby Lim told him to leave the party (“huwag ka nang kumain, hindi ka imbitado,
bumaba ka na lang”).[12] Mr. Reyes tried to explain that he was invited by Dr. Filart.[13]  Dr.
Filart, who was within hearing distance, however, completely ignored him thus adding to his
shame and humiliation.[14] Not long after, while he was still recovering from the traumatic
experience, a Makati policeman approached and asked him to step out of the hotel.[15] Like a
common criminal, he was escorted out of the party by the policeman.[16] Claiming damages, Mr.
Reyes asked for One Million Pesos actual damages, One Million Pesos moral and/or exemplary
damages and Two Hundred Thousand Pesos attorney’s fees.[17]

Ruby Lim, for her part, admitted having asked Mr. Reyes to leave the party but not under the
ignominious circumstance painted by the latter.  Ms. Lim narrated that she was the Hotel’s
Executive Secretary for the past twenty (20) years.[18] One of her functions included organizing
the birthday party of the hotel’s former General Manager, Mr. Tsuruoka.[19] The year 1994 was
no different.  For Mr. Tsuruoka’s party, Ms. Lim generated an exclusive guest list and extended
invitations accordingly.[20] The guest list was limited to approximately sixty (60) of Mr.
Tsuruoka’s closest friends and some hotel employees and that Mr. Reyes was not one of those
invited.[21] At the party, Ms. Lim first noticed Mr. Reyes at the bar counter ordering a drink.[22]
Mindful of Mr. Tsuruoka’s wishes to keep the party intimate, Ms. Lim approached Mr. Boy
Miller, the “captain waiter,” to inquire as to the presence of Mr. Reyes who was not invited.[23]
Mr. Miller replied that he saw Mr. Reyes with the group of Dr. Filart.[24] As Dr. Filart was
engaged in conversation with another guest and as Ms. Lim did not want to interrupt, she
inquired instead from the sister of Dr. Filart, Ms. Zenaida Fruto, who told her that Dr. Filart did
not invite Mr. Reyes.[25] Ms. Lim then requested Ms. Fruto to tell Mr. Reyes to leave the party as
he was not invited.[26] Mr. Reyes, however, lingered prompting Ms. Lim to inquire from Ms.
Fruto who said that Mr. Reyes did not want to leave.[27] When Ms. Lim turned around, she saw
Mr. Reyes conversing with a Captain Batung whom she later approached.[28] Believing that
Captain Batung and Mr. Reyes knew each other, Ms. Lim requested from him the same favor
from Ms. Fruto, i.e., for Captain Batung to tell Mr. Reyes to leave the party as he was not
invited.[29] Still, Mr. Reyes lingered.  When Ms. Lim spotted Mr. Reyes by the buffet table, she
decided to speak to him herself as there were no other guests in the immediate vicinity.[30]
However, as Mr. Reyes was already helping himself to the food, she decided to wait.[31] When
Mr. Reyes went to a corner and started to eat, Ms. Lim approached him and said: “alam ninyo,
hindo ho kayo dapat nandito. Pero total nakakuha na ho kayo ng pagkain, ubusin na lang ninyo
at pagkatapos kung pwede lang po umalis na kayo.”[32]  She then turned around trusting that Mr.
Reyes would show enough decency to leave, but to her surprise, he began screaming and making
a big scene, and even threatened to dump food on her.[33]

Dr. Violeta Filart, the third defendant in the complaint before the lower court, also gave her
version of the story to the effect that she never invited Mr. Reyes to the party.[34] According to
her, it was Mr. Reyes who volunteered to carry the basket of fruits intended for the celebrant as
he was likewise going to take the elevator, not to the penthouse but to Altitude 49.[35] When they
reached the penthouse, she reminded Mr. Reyes to go down as he was not properly dressed and
was not invited.[36] All the while, she thought that Mr. Reyes already left the place, but she later
saw him at the bar talking to Col. Batung.[37] Then there was a commotion and she saw Mr.
Reyes shouting.[38] She ignored Mr. Reyes.[39] She was embarrassed and did not want the
celebrant to think that she invited him.[40]

After trial on the merits, the court a quo dismissed the complaint,[41] giving more credence to the
testimony of Ms. Lim that she was discreet in asking Mr. Reyes to leave the party.  The trial
court likewise ratiocinated that Mr. Reyes assumed the risk of being thrown out of the party as he
was uninvited:

Plaintiff had no business being at the party because he was not a guest of Mr. Tsuruoka, the
birthday celebrant.  He assumed the risk of being asked to leave for attending a party to which he
was not invited by the host.  Damages are pecuniary consequences which the law imposes for the
breach of some duty or the violation of some right.  Thus, no recovery can be had against
defendants Nikko Hotel and Ruby Lim because he himself was at fault (Garciano v. Court of
Appeals, 212 SCRA 436).  He knew that it was not the party of defendant Violeta Filart even if
she allowed him to join her and took responsibility for his attendance at the party.  His action
against defendants Nikko Hotel and Ruby Lim must therefore fail.[42]
On appeal, the Court of Appeals reversed the ruling of the trial court as it found more
commanding of belief the testimony of Mr. Reyes that Ms. Lim ordered him to leave in a loud
voice within hearing distance of several guests:

In putting appellant in a very embarrassing situation, telling him that he should not finish his
food and to leave the place within the hearing distance of other guests is an act which is contrary
to morals, good customs . . ., for which appellees should compensate the appellant for the
damage suffered by the latter as a consequence therefore (Art. 21, New Civil Code).  The
liability arises from the acts which are in themselves legal or not prohibited, but contrary to
morals or good customs.  Conversely, even in the exercise of a formal right, [one] cannot with
impunity intentionally cause damage to another in a manner contrary to morals or good customs.
[43]

The Court of Appeals likewise ruled that the actuation of Ms. Lim in approaching several people
to inquire into the presence of Mr. Reyes exposed the latter to ridicule and was uncalled for as
she should have approached Dr. Filart first and both of them should have talked to Mr. Reyes in
private:

Said acts of appellee Lim are uncalled for.  What should have been done by appellee Lim was to
approach appellee Mrs. Filart and together they should have told appellant Reyes in private that
the latter should leave the party as the celebrant only wanted close friends around.  It is necessary
that Mrs. Filart be the one to approach appellant because it was she who invited appellant in that
occasion.  Were it not for Mrs. Filart’s invitation, appellant could not have suffered such
humiliation.  For that, appellee Filart is equally liable.

...

The acts of [appellee] Lim are causes of action which are predicated upon mere rudeness or lack
of consideration of one person, which calls not only protection of human dignity but respect of
such dignity.  Under Article 20 of the Civil Code, every person who violates this duty becomes
liable for damages, especially if said acts were attended by malice or bad faith.  Bad faith does
not simply connote bad judgment or simple negligence.  It imports a dishonest purpose or some
moral obliquity and conscious doing of a wrong, a breach of a known duty to some motive or
interest or ill-will that partakes of the nature of fraud (Cojuangco, Jr. v. CA, et al., 309 SCRA
603).[44]

Consequently, the Court of Appeals imposed upon Hotel Nikko, Ruby Lim and Dr. Violeta Filart
the solidary obligation to pay Mr. Reyes (1) exemplary damages in the amount of Two Hundred
Thousand Pesos (P200,000); (2) moral damages in the amount of Two Hundred Thousand Pesos
(P200,000); and (3) attorney’s fees in the amount of Ten Thousand Pesos (P10,000).[45] On
motion for reconsideration, the Court of Appeals affirmed its earlier decision as the argument
raised in the motion had “been amply discussed and passed upon in the decision sought to be
reconsidered.”[46]

Thus, the instant petition for review.  Hotel Nikko and Ruby Lim contend that the Court of
Appeals seriously erred in –
I.

… NOT APPLYING THE DOCTRINE OF VOLENTI NON FIT INJURIA CONSIDERING

THAT BY ITS OWN FINDINGS, AMAY BISAYA WAS A GATE-CRASHER

II.

… HOLDING HOTEL NIKKO AND RUBY LIM JOINTLY AND SEVERALLY LIABLE
WITH DR. FILART FOR DAMAGES SINCE BY ITS OWN RULING, AMAY BISAYA
“COULD NOT HAVE SUFFERED SUCH HUMILIATION,” “WERE IT NOT FOR DR.
FILART’S INVITATION”

III.

… DEPARTING FROM THE FINDINGS OF FACT OF THE TRIAL COURT AS REGARDS

THE CIRCUMSTANCES THAT ALLEGEDLY CAUSED THE HUMILIATION OF AMAY
BISAYA

IV.

… IN CONCLUDING THAT AMAY BISAYA WAS TREATED UNJUSTLY BECAUSE OF

HIS POVERTY, CONSIDERING THAT THIS WAS NEVER AN ISSUE AND NO
EVIDENCE WAS PRESENTED IN THIS REGARD

V.

… IN FAILING TO PASS UPON THE ISSUE ON THE DEFECTS OF THE APPELLANT’S

BRIEF, THEREBY DEPARTING FROM THE ACCEPTED AND USUAL COURSE OF
JUDICIAL PROCEEDINGS

Petitioners Lim and Hotel Nikko contend that pursuant to the doctrine of volenti non fit injuria,
they cannot be made liable for damages as respondent Reyes assumed the risk of being asked to
leave (and being embarrassed and humiliated in the process) as he was a “gate-crasher.”

The doctrine of volenti non fit injuria (“to which a person assents is not esteemed in law as
injury”[47]) refers to self-inflicted injury[48] or to the consent to injury[49] which precludes the
recovery of damages by one who has knowingly and voluntarily exposed himself to danger, even
if he is not negligent in doing so.[50] As formulated by petitioners, however, this doctrine does
not find application to the case at bar because even if respondent Reyes assumed the risk of
being asked to leave the party, petitioners, under Articles 19 and 21 of the New Civil Code, were
still under obligation to treat him fairly in order not to expose him to unnecessary ridicule and
shame.

Thus, the threshold issue is whether or not Ruby Lim acted abusively in asking Roberto Reyes,
a.k.a. “Amay Bisaya,” to leave the party where he was not invited by the celebrant thereof
thereby becoming liable under Articles 19 and 21 of the Civil Code.  Parenthetically, and if Ruby
Lim were so liable, whether or not Hotel Nikko, as her employer, is solidarily liable with her.

As the trial court and the appellate court reached divergent and irreconcilable conclusions
concerning the same facts and evidence of the case, this Court is left without choice but to use its
latent power to review such findings of facts.  Indeed, the general rule is that we are not a trier of
facts as our jurisdiction is limited to reviewing and revising errors of law.[51] One of the
exceptions to this general rule, however, obtains herein as the findings of the Court of Appeals
are contrary to those of the trial court.[52] The lower court ruled that Ms. Lim did not abuse her
right to ask Mr. Reyes to leave the party as she talked to him politely and discreetly.  The
appellate court, on the other hand, held that Ms. Lim is liable for damages as she needlessly
embarrassed Mr. Reyes by telling him not to finish his food and to leave the place within hearing
distance of the other guests.  Both courts, however, were in agreement that it was Dr. Filart’s
invitation that brought Mr. Reyes to the party.

The consequential question then is:  Which version is credible?

From an in depth review of the evidence, we find more credible the lower court’s findings of
fact.

First, let us put things in the proper perspective.

We are dealing with a formal party in a posh, five-star hotel,[53] for-invitation-only, thrown for
the hotel’s former Manager, a Japanese national.  Then came a person who was clearly uninvited
(by the celebrant)[54] and who could not just disappear into the crowd as his face is known by
many, being an actor.  While he was already spotted by the organizer of the party, Ms. Lim, the
very person who generated the guest list, it did not yet appear that the celebrant was aware of his
presence.  Ms. Lim, mindful of the celebrant’s instruction to keep the party intimate, would
naturally want to get rid of the “gate-crasher” in the most hush-hush manner in order not to call
attention to a glitch in an otherwise seamless affair and, in the process, risk the displeasure of the
celebrant, her former boss.  To unnecessarily call attention to the presence of Mr. Reyes would
certainly reflect badly on Ms. Lim’s ability to follow the instructions of the celebrant to invite
only his close friends and some of the hotel’s personnel.  Mr. Reyes, upon whom the burden rests
to prove that indeed Ms. Lim loudly and rudely ordered him to leave, could not offer any
satisfactory explanation why Ms. Lim would do that and risk ruining a formal and intimate
affair.  On the contrary, Mr. Reyes, on cross-examination, had unwittingly sealed his fate by
admitting that when Ms. Lim talked to him, she was very close.  Close enough for him to kiss:

Q:   And, Mr. Reyes, you testified that Miss Lim approached you while you were at the buffet
table?  How close was she when she approached you?

A:    Very close because we nearly kissed each other.

Q:   And yet, she shouted for you to go down? She was that close and she shouted?

A:    Yes. She said, “wag kang kumain, hindi ka imbitado dito, bumaba ka na lang.”
Q:   So, you are testifying that she did this in a loud voice?

...

A:    Yes.  If it is not loud, it will not be heard by many.[55]

In the absence of any proof of motive on the part of Ms. Lim to humiliate Mr. Reyes and expose
him to ridicule and shame, it is highly unlikely that she would shout at him from a very close
distance.  Ms. Lim having been in the hotel business for twenty years wherein being polite and
discreet are virtues to be emulated, the testimony of Mr. Reyes that she acted to the contrary does
not inspire belief and is indeed incredible.  Thus, the lower court was correct in observing that –

Considering the closeness of defendant Lim to plaintiff when the request for the latter to leave
the party was made such that they nearly kissed each other, the request was meant to be heard by
him only and there could have been no intention on her part to cause embarrassment to him.  It
was plaintiff’s reaction to the request that must have made the other guests aware of what
transpired between them. . .

Had plaintiff simply left the party as requested, there was no need for the police to take him out.
[56]

Moreover, another problem with Mr. Reyes’s version of the story is that it is unsupported.  It is a
basic rule in civil cases that he who alleges proves.  Mr. Reyes, however, had not presented any
witness to back his story up.  All his witnesses – Danny Rodinas, Pepito Guerrero and Alexander
Silva - proved only that it was Dr. Filart who invited him to the party.[57]

Ms. Lim, not having abused her right to ask Mr. Reyes to leave the party to which he was not
invited, cannot be made liable to pay for damages under Articles 19 and 21 of the Civil Code. 
Necessarily, neither can her employer, Hotel Nikko, be held liable as its liability springs from
that of its employee.[58]

Article 19, known to contain what is commonly referred to as the principle of abuse of rights,[59]
is not a panacea for all human hurts and social grievances.  Article 19 states:

Art. 19.  Every person must, in the exercise of his rights and in the performance of his duties, act
with justice, give everyone his due, and observe honesty and good faith.

Elsewhere, we explained that when “a right is exercised in a manner which does not conform
with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby
committed for which the wrongdoer must be responsible.”[60] The object of this article, therefore,
is to set certain standards which must be observed not only in the exercise of one’s rights but also
in the performance of one’s duties.[61] These standards are the following: act with justice, give
everyone his due and observe honesty and good faith.[62] Its antithesis, necessarily, is any act
evincing bad faith or intent to injure.  Its elements are the following:  (1) There is a legal right or
duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another.
[63] When Article 19 is violated, an action for damages is proper under Articles 20 or 21 of the
Civil Code.  Article 20 pertains to damages arising from a violation of law[64] which does not
obtain herein as Ms. Lim was perfectly within her right to ask Mr. Reyes to leave.  Article 21, on
the other hand, states:

Art. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to
morals, good customs or public policy shall compensate the latter for the damage.

Article 21[65] refers to acts contra bonus mores and has the following elements: (1) There is an
act which is legal; (2) but which is contrary to morals, good custom, public order, or public
policy; and (3) it is done with intent to injure.[66]

A common theme runs through Articles 19 and 21,[67] and that is, the act complained of must be
intentional.[68]

As applied to herein case and as earlier discussed, Mr. Reyes has not shown that Ms. Lim was
driven by animosity against him.  These two people did not know each other personally before
the evening of 13 October 1994, thus, Mr. Reyes had nothing to offer for an explanation for Ms.
Lim’s alleged abusive conduct except the statement that Ms. Lim, being “single at 44 years old,”
had a “very strong bias and prejudice against (Mr. Reyes) possibly influenced by her associates
in her work at the hotel with foreign businessmen.”[69] The lameness of this argument need not
be belabored.  Suffice it to say that a complaint based on Articles 19 and 21 of the Civil Code
must necessarily fail if it has nothing to recommend it but innuendos and conjectures.

Parenthetically, the manner by which Ms. Lim asked Mr. Reyes to leave was likewise acceptable
and humane under the circumstances.  In this regard, we cannot put our imprimatur on the
appellate court’s declaration that Ms. Lim’s act of personally approaching Mr. Reyes (without
first verifying from Mrs. Filart if indeed she invited Mr. Reyes) gave rise to a cause of action
“predicated upon mere rudeness or lack of consideration of one person, which calls not only
protection of human dignity but respect of such dignity.”[70] Without proof of any ill-motive on
her part, Ms. Lim’s act of by-passing Mrs. Filart cannot amount to abusive conduct especially
because she did inquire from Mrs. Filart’s companion who told her that Mrs. Filart did not invite
Mr. Reyes.[71]  If at all, Ms. Lim is guilty only of bad judgment which, if done with good
intentions, cannot amount to bad faith.

Not being liable for both actual and moral damages, neither can petitioners Lim and Hotel Nikko
be made answerable for exemplary damages[72] especially for the reason stated by the Court of
Appeals.  The Court of Appeals held –

Not a few of the rich people treat the poor with contempt because of the latter’s lowly station in
life.  This has to be limited somewhere.  In a democracy, such a limit must be established.  Social
equality is not sought by the legal provisions under consideration, but due regard for decency and
propriety (Code Commission, pp. 33-34).  And by way of example or correction for public good
and to avert further commission of such acts, exemplary damages should be imposed upon
appellees.[73]

The fundamental fallacy in the above-quoted findings is that it runs counter with the very facts of
the case and the evidence on hand.  It is not disputed that at the time of the incident in question,
Mr. Reyes was “an actor of long standing; a co-host of a radio program over DZRH; a Board
Member of the Music Singer Composer (MUSICO) chaired by popular singer Imelda Papin; a
showbiz Coordinator of Citizen Crime Watch; and 1992 official candidate of the KBL Party for
Governor of Bohol; and an awardee of a number of humanitarian organizations of the
Philippines.”[74] During his direct examination on rebuttal, Mr. Reyes stressed that he had
income[75] and nowhere did he say otherwise.  On the other hand, the records are bereft of any
information as to the social and economic standing of petitioner Ruby Lim.  Consequently, the
conclusion reached by the appellate court cannot withstand scrutiny as it is without basis.

All told, and as far as Ms. Lim and Hotel Nikko are concerned, any damage which Mr. Reyes
might have suffered through Ms. Lim’s exercise of a legitimate right done within the bounds of
propriety and good faith, must be his to bear alone.

WHEREFORE, premises considered, the petition filed by Ruby Lim and Nikko Hotel Manila
Garden is GRANTED.  The Decision of the Court of Appeals dated 26 November 2001 and its
Resolution dated 09 July 2002 are hereby REVERSED and SET ASIDE.  The Decision of the
Regional Trial Court of Quezon City, Branch 104, dated 26 April 1999 is hereby AFFIRMED. 
No costs.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.

[1] Now Dusit Hotel Nikko.

Penned by Associate Justice Eugenio S. Labitoria with Justices Teodoro P. Regino and
[2]
Rebecca de Guia-Salvador concurring (Rollo, pp. 48-57).

[3] Penned by Judge Thelma A. Ponferrada.

Penned by Associate Justice Eugenio S. Labitoria with Justices Teodoro P. Regino and
[4]
Rebecca de Guia-Salvador concurring (Rollo, pp. 59-60).

[5] TSN, 08 March 1995, p. 8.

[6] Id. at 10.

[7] Ibid.

[8] Id. 11.

[9] Id. at 13.

[10] Id. at 13 & 16.

[11] COMPLAINT, RTC Record, p. 2.

[12] Supra, note 5 at 17.

[13] Supra, note 11.

[14] Ibid.

[15] Id. at 2-3.

[16] Id. at 3.

[17] Ibid.

[18] TSN, 27 July 1996, p. 9.

[19] Id. at 10.

[20] Id. at 12-13, 15.

[21] Id. at 15-17, 25.

[22] Id. at 25.

[23] Id. at 27.

[24] Ibid.

[25] Id. at 31-32.

[26] Id. at 33.

[27] Id. at 37.

[28] Id. at 38-39.

[29] Ibid.

[30] Petition, Rollo, p. 18.

[31] Supra, note 29 at 41-42.

[32] Id. at 42-43.

[33] Answer, pp. 32-33, RTC Records; RTC Decision, Rollo p. 62; TSN, 27 July 1995, pp. 43-46.

[34] TSN, 05 November 1997, p. 15.

[35] Violeta Filart’s “ANSWER WITH COMPULSORY COUNTERCLAIM,” RTC Records, p. 21.

[36] Supra, note 34 at 17.

[37] Or “Captain Batung” from the testimony of Ruby Lim; Id. at 18.

[38] Id. at 19.

[39] Ibid.

[40] Ibid.

Dismissed as well were the counterclaims filed by then defendants Nikko Hotel Manila
[41]
Garden, Ruby Lim and Violeta Filart, RTC Records, p. 347.

[42] RTC Records, p. 342.

[43] CA Rollo, p. 205.

[44] Id. at 208-209.

[45] Id. at 238.

[46] CA Rollo, pp. 239-240.

[47] E.L. Pineda, Torts and Damages Annotated, p. 52 (2004 ed).

[48] Garciano v. Court of Appeals, G.R. No. 96126, 10 August 1992, 212 SCRA 436, 440.

cf. Servicewide Specialists, Inc. v. Intermediate Appellate Court, G.R. No. 74553, 08 June
[49]
1989, 174 SCRA 80, 88.

[50] Sangco, Torts and Damages Vol.1 , pp. 83-84.

[51] Floro v. Llenado, G.R. No. 75723, 02 June 1995, 244 SCRA 713, 720.

[52] Ibid.

[53] TSN, 22 May 1999, p. 11.

[54] Admitted by Mr. Reyes, see TSN, 15 March 1995, p. 10.

[55] TSN, 15 March 1995, p. 20.

[56] RTC Records, pp. 340-341.

Danny Rodinas and Pepito Guerrero (TSN, 18 May 1995), Alexander Silva (TSN, 21 June
[57]
1995).

[58] Article 2180, Civil Code.

Globe-Mackay Cable and Radio Corp. v. Court of Appeals, G.R. No. 81262, 25 August 1989,
[59]
176 SCRA 779, 783.

[60]Albenson Enterprises Corp. v. Court of Appeals, G.R. No. 88694, 11 January 1993, 217 SCRA
16, 25.

[61] Supra, note 61 at 783-784.

[62] Ibid.

[63] Supra, note 62.

Art. 20. Every person who, contrary to law, willfully or negligently causes damage to another,
[64]
shall indemnify the latter for the same.  See Globe Mackay, supra, note 61 at 784.

[65] Civil Code.

[66] Supra, note 62 at 25.

[67] Civil Code.

[68] Ibid.

[69] “COMMENT,” Rollo, p. 302; “MEMORANDUM,” Rollo, p. 417.

[70] CA Rollo, p. 209.

In fact, Mrs. Filart herself, in her testimony and in her pleadings, consistently disclaimed
[71]
having invited Mr. Reyes to the party such that when Mr. Reyes was being escorted out of the
penthouse, she lifted nary a finger to his rescue.

[72] Art. 2234, Civil Code.

[73] CA Rollo, pp. 209-210.

[74] Appellant’s Brief, CA Rollo, p. 27; see also TSN, 08 March 1995, pp. 7-8.
[75] TSN, 29 October 1998, p. 11.

THIRD DIVISION
[G.R. No. 142943.  April 3, 2002]

Spouses ANTONIO and LORNA QUISUMBING, petitioners, vs. MANILA ELECTRIC

COMPANY (MERALCO), respondent.

DECISION

PANGANIBAN, J.:

Under the law, the Manila Electric Company (Meralco) may immediately disconnect electric
service on the ground of alleged meter tampering, but only if the discovery of the cause is
personally witnessed and attested to by an officer of the law or by a duly authorized
representative of the Energy Regulatory Board.

The Case

Before us is a Petition for Review under Rule 45 of the Rules of Court, assailing the February 1,
2000 Decision and the April 10, 2000 Resolution of the Court of Appeals (CA) in CA-GR SP
No. 49022.  The decretal portion of the said Decision reads as follows:

“WHEREFORE, the challenged decision in Civil Case No. Q-95-23219 is hereby SET ASIDE
and the complaint against defendant-appellant MERALCO is hereby DISMISSED. Plaintiffs-
appellees are hereby ORDERED to pay defendant-appellant MERALCO the differential billing
of P193,332.00 representing the value of used but unregistered electrical consumption.”

The assailed Resolution denied petitioner’s Motion for Reconsideration.

The Facts

The facts of the case are summarized by the Court of Appeals in this wise:

“Defendant-appellant Manila Electric Company (MERALCO) is a private corporation,

authorized by law to charge all persons, including the government, for the consumption of
electric power at rates duly authorized and approved by the Board of Energy (now the Energy
Regulatory Board).

“Plaintiffs-appellees Spouses Antonio and Lorna Quisumbing are owners of a house and lot
located at No. 94 Greenmeadows Avenue, Quezon City, which they bought on April 7, 1994
from Ms. Carmina Serapio Santos.  They alleged to be business entrepreneurs engaged in the
export of furnitures under the business name ‘Loran Industries’ and recipient of the 1993 Agora
Award and 1994 Golden Shell Award.  Mrs. Quisumbing is a member of the Innerwheel Club
while Mr. Quisumbing is a member of the Rotary Club, Chairman of Cebu Chamber of
Commerce, and Director of Chamber of Furniture.

“On March 3, 1995 at around 9:00 a.m., defendant-appellant’s inspectors headed by Emmanuel
C. Orlino were assigned to conduct a routine-on-the-spot inspection of all single phase meters at
Greenmeadows Avenue.  House no. 94 of Block 8, Lot 19 Greenmeadows Avenue owned by
plaintiffs-appellees was inspected after observing a standard operating procedure of asking
permission from plaintiffs-appellees, through their secretary which was granted.  The secretary
witnessed the inspection.  After the inspection, defendant-appellant’s inspectors discovered that
the terminal seal of the meter was missing; the meter cover seal was deformed; the meter dials of
the meter was mis-aligned and there were scratches on the meter base plate.  Defendant-
appellant’s inspectors relayed the matter to plaintiffs-appellees’ secretary, who in turn relayed
the same to plaintiff-appellee, Lorna Quisumbing, who was outraged of the result of the
inspection and denied liability as to the tampering of the meter.  Plaintiffs-appellees were
advised by defendant-appellant’s inspectors that they had to detach the meter and bring it to their
laboratory for verification/confirmation of their findings.  In the event the meter turned out to be
tampered, defendant-appellant had to temporarily disconnect the electric services of plaintiffs-
appellees.  The laboratory testing conducted on the meter has the following findings to wit:

‘1. Terminal seal was missing.

‘2. Lead cover seals (’90 ERB 1-Meralco 21) were tampered by forcibly pulling out
from the sealing wire.

‘3. The 1000th, 100th and 10th dial pointers of the register were found out of
alignment and with circular scratches at the face of the register which indicates
that the meter had been opened to manipulate the said dial pointers and set
manually to the desired reading.  In addition to this, the meter terminal blades
were found full of scratches.’

“After an hour, defendant-appellant’s head inspector, E. Orlina returned to the residence of

plaintiffs-appellees and informed them that the meter had been tampered and unless they pay the
amount of P178,875.01 representing the differential billing, their electric supply would be
disconnected.  Orlina informed plaintiffs-appellees that they were just following their standard
operating procedure.  Plaintiffs-appellees were further advised that questions relative to the
results of the inspection as well as the disconnection of her electrical services for Violation of
Contract (VOC) may be settled with Mr. M. Manuson of the Special Accounts, Legal Service
Department.  However, on the same day at around 2:00 o’clock in the afternoon defendant-
appellant’s officer through a two-way radio instructed its service inspector headed by Mr. Orlino
to reconnect plaintiffs-appellees’ electric service which the latter faithfully complied.

“On March 6, 1995, plaintiffs-appellees filed a complaint for damages with prayer for the
issuance of a writ of preliminary mandatory injunction, despite the immediate reconnection, to
order defendant-appellant to furnish electricity to the plaintiffs-appellees alleging that defendant-
appellant acted with wanton, capricious, malicious and malevolent manner in disconnecting their
power supply which was done without due process, and without due regard for their rights,
feelings, peace of mind, social and business reputation.

“In its Answer, defendant-appellant admitted disconnecting the electric service at the plaintiffs-
appellees’ house but denied liability citing the ‘Terms and Conditions of Service,’ and Republic
Act No. 7832 otherwise known as ‘Anti-Electricity and Electric Transmission Lines/Materials
Pilferage Act of 1994.’

“After trial on the merits, the lower court rendered judgment, ruling in favor of plaintiffs-
appellees.” (Citations omitted)

Ruling of the Trial Court

The trial court held that Meralco (herein respondent) should have given the Quisumbing spouses
(herein petitioners) ample opportunity to dispute the alleged meter tampering.

It held that respondent had acted summarily and without procedural due process in immediately
disconnecting the electric service of petitioners.  Respondent’s action, ruled the RTC, constituted
a quasi delict.

Ruling of the Court of Appeals

The Court of Appeals overturned the trial court’s ruling and dismissed the Complaint.  It held
that respondent’s representatives had acted in good faith when they disconnected petitioners’
electric service.  Citing testimonial and documentary evidence, it ruled that the disconnection
was made only after observing due process.  Further, it noted that petitioners had not been able to
prove their claim for damages.  The appellate court likewise upheld respondent’s counterclaim
for the billing differential in the amount of P193,332 representing the value of petitioners’ used
but unregistered electrical consumption, which had been established without being controverted.

Hence, this Petition.

The Issues

In their Memorandum, petitioners submit the following issues for our consideration:

“4.1   Whether a prima facie presumption of tampering of electrical meter enumerated under Sec.
4 (a) iv of RA 7832 (Anti-Electricity and Electric Transmission Lines/Materials Pilferage Act of
1994) may be had despite the absence of an ERB representative or an officer of the law?

“4.2   Whether the enumeration of instances to establish a prima facie presumption of tampering
of electrical meter enumerated under Sec. 4 (a) iv of RA 7832 (Anti-Electricity and Electric
Transmission Lines/Materials Pilferage Act of 1994) is exclusive?

“4.3   What constitutes notice prior to disconnection of electricity service? Corollarily, whether
the definition of notice under Meralco v. Court of Appeals (157 SCRA 243) applies to the case at
bar?

“4.4   Whether a prima facie presumption may contradict logic?

“4.5   Whether documentary proof is pre-requisite for award of damages?”

In sum, this Petition raises three (3) main issues which this Court will address: (1) whether
respondent observed the requisites of law when it disconnected the electrical supply of
petitioners, (2) whether such disconnection entitled petitioners to damages, and (3) whether
petitioners are liable for the billing differential computed by respondent.

The Court’s Ruling

The Petition is partly meritorious.

First Issue:
Compliance with Requisites of Law

Petitioners contend that the immediate disconnection of electrical service was not validly
effected because of respondent’s noncompliance with the relevant provisions of RA 7832, the
“Anti-Electricity and Electric Transmission Lines/Materials Pilferage Act of 1994.” They insist
that the immediate disconnection of electrical supply may only be validly effected only when
there is prima facie evidence of its illegal use.  To constitute prima facie evidence, the discovery
of the illegal use must be “personally witnessed and attested to by an officer of the law or a duly
authorized representative of the Energy Regulatory Board (ERB).”

Respondent, on the other hand, points out that the issue raised by petitioners is a question of fact
which this Court cannot pass upon.  It argues further that this issue, which was not raised in the
court below, can no longer be taken up for the first time on appeal.  Assuming arguendo that the
issue was raised below, it also contends that petitioners were not able to specifically prove the
absence of an officer of the law or a duly authorized representative of the ERB when the
discovery was made.

Prima facie Evidence of Illegal Use of Electricity

We agree with petitioners.  Section 4 of RA 7832 states:

(a)            The presence of any of the following circumstances shall constitute prima facie
evidence of illegal use of electricity, as defined in this Act, by the person benefited thereby, and
shall be the basis for: (1) the immediate disconnection by the electric utility to such person after
due notice, x x x

x x x                                                                      x x
x                                                                             x x x

(viii) x x x Provided, however, That the discovery of any of the foregoing circumstances, in
order to constitute prima facie evidence, must be personally witnessed and attested to by an
officer of the law or a duly authorized representative of the Energy Regulatory Board (ERB).”
(Italics supplied)

Under the above provision, the prima facie presumption that will authorize immediate
disconnection will arise only upon the satisfaction of certain requisites.  One of these requisites is
the personal witnessing and attestation by an officer of the law or by an authorized ERB
representative when the discovery was made.

As a rule, this Court reviews only questions of law, not of facts.  However, it may pass upon the
evidence when the factual findings of the trial court are different from those of the Court of
Appeals, as in this case.

A careful review of the evidence on record negates the appellate court’s holding that “the actions
of defendant-appellant’s service inspectors were all in accord with the requirement of the law.”

Respondent’s own witnesses provided the evidence on who were actually present when the
inspection was made.  Emmanuel C. Orlino, the head of the Meralco team, testified:

“Q   When you were conducting this inspection, and you discovered these findings you testified
earlier, who was present?

A     The secretary, sir.”

“ATTY. REYES - Who else were the members of your team that conducted this inspection at
Greenmeadows Avenue on that day, March 3, 1995?

A     The composition of the team, sir?

Q    Yes.

A     Including me, we are about four (4) inspectors, sir.

Q    You were four (4)?

A     Yes, sir.

Q    Who is the head of this team?

A     I was the head of the team, sir.”

Further, Catalino A. Macaraig, the area head of the Orlino team, stated that only Meralco
personnel had been present during the inspection:

“Q   By the way you were not there at Green Meadows on that day, right?

A     Yes, sir.

Q    Only Mr. Orlino and who else were there?

A     Two or three of his men.

Q    All members of the inspection team?

A     Yes, sir.”

These testimonies clearly show that at the time the alleged meter tampering was discovered, only
the Meralco inspection team and petitioners’ secretary were present. Plainly, there was no officer
of the law or ERB representative at that time.  Because of the absence of government
representatives, the prima facie authority to disconnect, granted to Meralco by RA 7832, cannot
apply.

Neither can respondent find solace in the fact that petitioners’ secretary was present at the time
the inspection was made.  The law clearly states that for the prima facie evidence to apply, the
discovery “must be personally witnessed and attested to by an officer of the law or a duly
authorized representative of the Energy Regulatory Board (ERB).” Had the law intended the
presence of the owner or his/her representative to suffice, then it should have said so.  Embedded
in our jurisprudence is the rule that courts may not construe a statute that is free from doubt.
Where the law is clear and unambiguous, it must be taken to mean exactly what it says, and
courts have no choice but to see to it that the mandate is obeyed.

In fact, during the Senate deliberations on RA 7832, Senator John H. Osmeña, its author, stressed
the need for the presence of government officers during inspections of electric meters.  He said:

“Mr. President, if a utility like MERALCO finds certain circumstances or situations which are
listed in Section 2 of this bill to be prima facie evidence, I think they should be prudent enough
to bring in competent authority, either the police or the NBI, to verify or substantiate their
finding.  If they were to summarily proceed to disconnect on the basis of their findings and later
on there would be a court case and the customer or the user would deny the existence of what is
listed in Section 2, then they could be in a lot of trouble.” (Italics supplied)

Neither can we accept respondent’s argument that when the alleged tampered meter was brought
to Meralco’s laboratory for testing, there was already an ERB representative present.

The law says that before immediate disconnection may be allowed, the discovery of the illegal
use of electricity must have been personally witnessed and attested to by an officer of the law or
by an authorized ERB representative.  In this case, the disconnection was effected immediately
after the discovery of the alleged meter tampering, which was witnessed only by Meralco’s
employees.  That the ERB representative was allegedly present when the meter was examined in
the Meralco laboratory will not cure the defect.

It is undisputed that after members of the Meralco team conducted their inspection and found
alleged meter tampering, they immediately disconnected petitioners’ electrical supply.  Again,
this verity is culled from the testimony of Meralco’s Orlina:

“A    When she went inside then she came out together with Mrs. Lourdes Quis[u]mbing at that
time.  We did tell our findings regarding the meter and the consequence with it.  And she was
very angry with me.
Q    When you say consequence of your findings, what exactly did you tell Mrs. Quisumbing?

A     We told her that the service will be temporarily disconnected and that we are referring to
our Legal Department so could know the violation, sir.”

“A    Yes, sir.  At that time, I referred her to Mr. Macaraig, sir.

Q    What is the first name of this supervisor?

A     Mr. Catalino Macara[i]g, sir.

Q    Then after talking to Mr. Catalino Macara[i]g, this is over the telephone, what happened?

A     The supervisor advised her that the service will be temporarily disconnected and she has to
go to our Legal Department where she could settle the VOC, sir.

Q    You are talking of ‘VOC,’ what is this all about Mr. Orlino?

A     ‘VOC’ is violation of contract, sir.”

As to respondent’s argument that the presence of an authorized ERB representative had not been
raised below, it is clear, however, that the issue of due process was brought up by petitioners as a
valid issue in the CA.  The presence of government agents who may authorize immediate
disconnections go into the essence of due process.  Indeed, we cannot allow respondent to act
virtually as prosecutor and judge in imposing the penalty of disconnection due to alleged meter
tampering.  That would not sit well in a democratic country.  After all, Meralco is a monopoly
that derives its power from the government.  Clothing it with unilateral authority to disconnect
would be equivalent to giving it a license to tyrannize its hapless customers.

Besides, even if not specifically raised, this Court has already ruled that “[w]here the issues
already raised also rest on other issues not specifically presented, as long as the latter issues bear
relevance and close relation to the former and as long as they arise from matters on record, the
Court has the authority to include them in its discussion of the controversy as well as to pass
upon them.”

Contractual Right to Disconnect

Electrical Service

Neither may respondent rely on its alleged contractual right to disconnect electrical service based
on Exhibits “10” and “11,” or on Decisions of the Board of Energy (now the Energy Regulatory
Board).  The relevant portion of these documents concerns discontinuance of service.  It
provides:

“The Company reserves the right to discontinue service in case the Customer is in arrears in the
payment of bills or for failure to pay the adjusted bills in those cases where the meter stopped or
failed to register the correct amount of energy consumed, or for failure to comply with any of
these terms and conditions, or in case of or to prevent fraud upon the Company.  Before
disconnection is made in case of or to prevent fraud, the Company may adjust the bill of said
Customer accordingly and if the adjusted bill is not paid, the Company may disconnect the
same.  In case of disconnection, the provisions of Revised Order No. 1 of the former Public
Service Commission (now the Board of Energy) shall be observed.  Any such suspension of
service shall not terminate the contract between the Company and the Customer.”

Petitioners’ situation can fall under disconnection only “in case of or to prevent fraud upon the
Company.” However, this too has requisites before a disconnection may be made.  An adjusted
bill shall be prepared, and only upon failure to pay it may the company discontinue service.  This
is also true in regard to the provisions of Revised Order No. 1 of the former Public Service
Commission, which requires a 48-hour written notice before a disconnection may be justified.  In
the instant case, these requisites were obviously not complied with.

Second Issue
Damages

Having ruled that the immediate disconnection effected by Meralco lacks legal, factual or
contractual basis, we will now pass upon on the right of petitioners to recover damages for the
improper disconnection.

Petitioners are asking for the reinstatement of the RTC Decision, which awarded them actual,
moral and exemplary damages as well as attorney’s fees.  All these were overturned by the CA.

As to actual damages, we agree with the CA that competent proof is necessary before our award
may be made.  The appellate court ruled as follows:

“Considering further, it is a settled rule that in order for damages to be recovered, the best
evidence obtainable by the injured party must be presented.  Actual and compensatory damages
cannot be presumed but must be duly proved and proved with reasonable degree and certainty. 
A court cannot rely on speculation, conjecture or guess work as to the fact and amount of
damages, but must depend upon competent proof that they have been suffered and on evidence
of actual amount thereof.  If the proof is flimsy and unsubstantial, no damages will be awarded.”

Actual damages are compensation for an injury that will put the injured party in the position
where it was before it was injured. They pertain to such injuries or losses that are actually
sustained and susceptible of measurement. Except as provided by law or by stipulation, a party is
entitled to an adequate compensation only for such pecuniary loss as it has duly proven.

Basic is the rule that to recover actual damages, not only must the amount of loss be capable of
proof; it must also be actually proven with a reasonable degree of certainty, premised upon
competent proof or the best evidence obtainable.

Petitioners’ claim for actual damages was premised only upon Lorna Quisumbing’s bare
testimony as follows:
“A    Actually that da[y] I was really scheduled to go to that furniture exhibit.  That furniture
exhibit is only once a year.

Q    What is this furniture exhibit?

A     The SITEM, that is a government agency that takes care of exporters and exclusive
marketing of our products around the world.  We always have that once a year and that’s the
time when all our buyers are here for us to show what we had that was exhibited to go around. 
So, my husband had to [fly] from Cebu to Manila just for this occasion.  So we have an
appointment with our people and our buyers with SITEM and also that evening we will have to
treat them [to] dinner.

Q    Whereat?

A     At our residence, we were supposed to have a dinner at our residence.

Q    What happened to this occasion?

A     So when they disconnected our electric power we had to get in touch with them and change
the venue.

Q    Which venue did you transfer your dinner for your buyers?

A     We brought them in a restaurant in Makati at Season’s Restaurant.  But it was very
embar[r]assing for us because we faxed them ahead of time before they came to Manila.

Q    Now as a result of this change of your schedule because of the disconnection of the electric
power on that day, Friday, what damage did you suffer?

A     I cancelled the catering service and that is so much of a h[a]ssle it was so embarras[s]ing for
us.

Q    Can you tell us how much amount?

A     Approximately P50,000.00.”

No other evidence has been proffered to substantiate her bare statements.  She has not shown
how she arrived at the amount of P50,000; it is, at best, speculative.  Her self-serving testimonial
evidence, if it may be called such, is insufficient to support alleged actual damages.

While respondent does not rebut this testimony on the expenses incurred by the spouses in
moving the dinner out of their residence due to the disconnection, no receipts covering such
expenditures have been adduced in evidence.  Neither is the testimony corroborated.  To
reiterate, actual or compensatory damages cannot be presumed, but must be duly proved with a
reasonable degree of certainty.  It is dependent upon competent proof of damages that petitioners
have suffered and of the actual amount thereof. The award must be based on the evidence
presented, not on the personal knowledge of the court; and certainly not on flimsy, remote,
speculative and unsubstantial proof. Consequently, we uphold the CA ruling denying the grant of
actual damages.

Having said that, we agree with the trial court, however, that petitioners are entitled to moral
damages, albeit in a reduced amount.

The RTC opined as follows:

“This Court agrees with the defendant regarding [its] right by law and equity to protect itself
from any fraud.  However, such right should not be exercised arbitrarily but with great caution
and with due regard to the rights of the consumers.  Meralco having a virtual monopoly of the
supply of electric power should refrain from taking drastic actions against the consumers without
observing due process.  Even assuming that the subject meter has had history of meter
tampering, defendant cannot simply assume that the present occupants are the ones responsible
for such tampering.  Neither does it serve as a license to deprive the plaintiffs of their right to due
process.  Defendant should have given the plaintiffs simple opportunity to dispute the electric
charges brought about by the alleged meter-tampering, which were not included in the bill
rendered them.  Procedural due process requires reasonable notice to pay the bill and reasonable
notice to discontinue supply.  Absent due process the defendant may be held liable for damages. 
While this Court is aware of the practice of unscrupulous individuals of stealing electric curre[n]t
which causes thousands if not millions of pesos in lost revenue to electric companies, this does
not give the defendant the right to trample upon the rights of the consumers by denying them due
process.”

Article 2219 of the Civil Code lists the instances when moral damages may be recovered.  One
such case is when the rights of individuals, including the right against deprivation of property
without due process of law, are violated.

Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched
reputation, wounded feelings, moral shock, social humiliation, and similar injury. Although
incapable of pecuniary computation, such damages may be recovered if they are the proximate
results of the defendant’s wrongful act or omission.

Case law establishes the following requisites for the award of moral damages: (1) there is an
injury -- whether physical, mental or psychological -- clearly sustained by the claimant; (2) there
is a culpable act or omission factually established; (3) the wrongful act or omission of the
defendant is the proximate cause of the injury sustained by the claimant; and (4) the award of
damages is predicated on any of the cases stated in Article 2219 of the Civil Code.

To reiterate, respondent had no legal right to immediately disconnect petitioners’ electrical

supply without observing the requisites of law which, in turn, are akin to due process.  Had
respondent been more circumspect and prudent, petitioners could have been given the
opportunity to controvert the initial finding of alleged meter tampering. Said the RTC:
“More seriously, the action of the defendant in maliciously disconnecting the electric service
constitutes a breach of public policy.  For public utilities, broad as their powers are, have a clear
duty to see to it that they do not violate nor transgress the rights of the consumers.  Any act on
their part that militates against the ordinary norms of justice and fair play is considered an
infraction that gives rise to an action for damages.  Such is the case at bar.”

Indeed, the Supreme Court has ruled in Meralco v. CA that respondent is required to give notice
of disconnection to an alleged delinquent customer.  The Court said:

“x x x One can not deny the vital role which a public utility such as MERALCO, having a
monopoly of the supply of electrical power in Metro Manila and some nearby municipalities,
plays in the life of people living in such areas.  Electricity has become a necessity to most people
in these areas, justifying the exercise by the State of its regulatory power over the business of
supplying electrical service to the public, in which petitioner MERALCO is engaged.  Thus, the
state may regulate, as it has done through Section 97 of the Revised Order No. 1 of the Public
Service Commission, the conditions under which and the manner by which a public utility such
as MERALCO may effect a disconnection of service to a delinquent customer.  Among others, a
prior written notice to the customer is required before disconnection of the service.  Failure to
give such prior notice amounts to a tort.”

Observance of the rights of our people is sacred in our society.  We cannot allow such rights to
be trifled with or trivialized.  Although the Court sympathizes with respondent’s efforts to stamp
out the illegal use of electricity, such action must be done only with strict observance of the
rights of our people.  As has been we succinctly said: “there is a right way to do the right thing at
the right time for the right reason.”

However, the amount of moral damages, which is left largely to the sound discretion of the
courts, should be granted in reasonable amounts, considering the attendant facts and
circumstances. Moral damages, though incapable of pecuniary estimation, are designed to
compensate the claimant for actual injury suffered and not to impose a penalty. Moral damages
are not intended to enrich a plaintiff at the expense of the defendant. They are awarded only to
obtain a means, a diversion or an amusement that will serve to alleviate the moral suffering the
injured party has undergone by reason of the defendant’s culpable action. They must be
proportionate to the suffering inflicted.

It is clear from the records that respondent was able to restore the electrical supply of petitioners
on the same day.  Verily, the inconvenience and anxiety they suffered as a result of the
disconnection was thereafter corrected.  Thus, we reduce the RTC’s grant of moral damages to
the more equitable amount of P100,000.

Exemplary damages, on the other hand, are imposed by way of example or correction for the
public good in addition to moral, temperate, liquidated or compensatory damages. It is not given
to enrich one party and impoverish another, but to serve as a deterrent against or as a negative
incentive to socially deleterious actions. In this case, to serve an example -- that before a
disconnection of electrical supply can be effected by a public utility like Meralco, the requisites
of law must be faithfully complied with -- we award the amount of P50,000 to petitioners.
Finally, with the award of exemplary damages, the award of attorney’s fees is likewise granted.
It is readily apparent that petitioners needed the services of a lawyer to argue their cause, even to
the extent of elevating the matter to this Court; thus, an award of P50,000 is considered
sufficient.

Final Issue:
Billing Differential

Finally, this Court holds that despite the basis for the award of damages -- the lack of due
process in immediately disconnecting petitioners’ electrical supply -- respondent’s counterclaim
for the billing differential is still proper.  We agree with the CA that respondent should be given
what it rightfully deserves.  The evidence it presented, both documentary and testimonial,
sufficiently proved the amount of the differential.

Not only did respondent show how the meter examination had been conducted by its experts, but
it also established the amount of P193,332.96 that petitioners owed respondent.  The procedure
through which this amount was arrived at was testified to by Meralco’s Senior Billing Computer
Enrique Katipunan.  His testimony was corroborated by documentary evidence showing the
account’s billing history and the corresponding computations. Neither do we doubt the
documents of inspections and examinations presented by respondent to prove that, indeed there
had been meter tampering that resulted in unrecorded and unpaid electrical consumption.

The mere presentation by petitioners of a Contract to Sell with Assumption of Mortgage does not
necessarily mean that they are no longer liable for the billing differential.  There was no
sufficient evidence to show that they had not been actually residing in the house before the date
of the said document.  Lorna Quisumbing herself admitted that they did not have any contract for
electrical service in their own name.  Hence, petitioners effectively assumed the bills of the
former occupants of the premises.

Finally, the CA was correct in ruling that the convincing documentary and testimonial evidence
presented by respondent, was not controverted by petitioners.

WHEREFORE, the Petition is hereby PARTLY GRANTED. The assailed CA Decision is

MODIFIED as follows:  petitioners are ORDERED to pay respondent the billing differential of
P193,332.96; while respondent is ordered to pay petitioners P100,000 as moral damages,
P50,000 as exemplary damages, and P50,000 as attorney’s fees.  No pronouncement as to costs.

SO ORDERED.

Melo, (Chairman), Sandoval-Gutierrez, and Carpio, JJ., concur.

Vitug, J., abroad on official business.

Rollo, pp. 17-30; penned by Justice Remedios A. Salazar-Fernando and concurred in by Justices
Ma. Alicia Austria-Martinez (Division chairman) and Oswaldo D. Agcaoili (member).
Rollo, p. 15.

CA Decision, p. 13; rollo, p. 29.

CA Decision, pp. 2-4; rollo, pp. 18-20.

Although this was the amount granted by the CA in its assailed Decision, the amount prayed for
by respondent in its Counterclaim and shown in its documentary and testimonial evidence was
P193,332.96.

The case was deemed submitted for decision on January 26, 2001, upon this Court’s receipt of
the Memorandum for petitioners signed by Atty. Andrew D. Inocencio.  Respondent’s
Memorandum, filed on January 16, 2001, was signed by Atty. Jose Ronald V. Valles.

Rollo, pp. 136-143.

Petitioner’s Memorandum, p. 2; rollo, p. 137.

Section 4, RA 7832, December 8, 1994.

Meralco v. CA, GR No. 108301, July 11, 2001.

CA Decision, p. 8; rollo, p. 24.

TSN, July 10, 1997, pp. 24-25.

Ibid., pp. 47-48.

TSN, August 21, 1997, pp. 46-47.

Section 4 (a) (viii), RA 7832, December 8, 1994.

Ramos v. CA, 108 SCRA 728, October 30, 1981; Banawa v. Mirano, 97 SCRA 517, May 16,
1980; Espiritu v. Cipriano, 55 SCRA 533, February 15, 1974; Republic Flour Mills, Inc. v.
Commissioner of Customs, 39 SCRA 269, May 31, 1971.

Agpalo, Statutory Construction, 1990 ed., p. 45, citing Resins, Inc. v. Auditor General, 25 SCRA
754, October 29, 1968.

Record of the Senate, Vol. IV, No. 61, March 9, 1994, p. 357.

TSN, July 10, 1997, pp. 27-28.

Ibid., pp. 31-32.

Republic v. Cocofed, GR Nos. 147062-64, December 14, 2001, per Panganiban, J. citing
Diamante v. CA, 206 SCRA 52, 64, February 7, 1992, per Davide Jr., J. (now CJ), which in turn
cited Insular Life Assurance Co., Ltd. Employees Association – NATU v. Insular Life Assurance
Co., Ltd., 76 SCRA 50, 61-62, March 10, 1977, per Castro, CJ.

Records, pp. 336-354.

Ibid., pp. 355-369.

Annex “A” of Exhibit “10,” BOE Case No. 85-121, records, p. 353; Exhibit “11,” BPW Case
No. 73-115, p. 361.

CA Decision, p. 11; rollo, p. 27.

Ong v. CA, 301 SCRA 387, January 21, 1999.

Ibid.

Article 2199, Civil Code.

Sabio v. The International Corporate Bank, GR No. 132701, September 4, 2001; Fernandez v.
Fernandez, GR No. 143256, August 20, 2001; Bernardo v. Court of Appeals (Special Sixth
Division), 275 SCRA 413, July 14, 1997.

TSN, November 28, 1996, pp. 15-17.

Magat Jr. v. CA, 337 SCRA 298, August 4, 2000; Integrated Packaging Corp. v. CA, 333 SCRA
170, June 8, 2000.

Bayer Phils., Inc. v. CA, 340 SCRA 437, September 15, 2000.

RTC Decision, p. 3; rollo, p. 33.

Article 2219 (10), Civil Code.

Article 32, Civil Code.

Article 2217, Civil Code.

Ibid.

Citytrust Banking Corporation v. Villanueva, GR No. 141011, July 19, 2001; Expertravel &
Tours, Inc. v. CA, 309 SCRA 141, 145, June 25, 1999.

RTC Decision, p. 5; rollo, p. 35, per Judge Marciano I. Bacalla.

157 SCRA 243, January 22, 1988.

Ibid., pp. 247-248, per Yap, J.

Paper Industries Corp. of the Phils. v. Asuncion, 307 SCRA 253, 275, May 19, 1999, per
Panganiban, J.

Prudenciado v. Alliance Transport System, Inc., 148 SCRA 440, March 16, 1987.

San Andres v. CA, 116 SCRA 81, August 21, 1982.

Radio Communications of the Philippines, Inc. v. Rodriguez, 182 SCRA 899, February 28, 1990.

R & B Surety & Insurance Co., Inc. v. Intermediate Appellate Court, 129 SCRA 736, June 22,
1984.

Ibid.

Article 2229, Civil Code.

Oarde v. CA, 280 SCRA 235, October 8, 1997.

Article 2208 (1), Civil Code.

Lucas v. Royo, 344 SCRA 481, October 30, 2000.

Exhibit “E,” Plaintiffs’ Formal Offer of Evidence; records, pp. 275-278.

TSN, November 28, 1996, pp. 32-33.

 Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION
 

G.R. No. 97336 February 19, 1993

GASHEM SHOOKAT BAKSH, petitioner,

vs.
HON. COURT OF APPEALS and MARILOU T. GONZALES, respondents.

Public Attorney's Office for petitioner.

Corleto R. Castro for private respondent.

DAVIDE, JR., J.:

This is an appeal by certiorari under Rule 45 of the Rules of Court seeking to review
and set aside the Decision 1 of the respondent Court of Appeals in CA-G.R. CV No.
24256 which affirmed in toto the 16 October 1939 Decision of Branch 38 (Lingayen) of
the Regional Trial Court (RTC) of Pangasinan in Civil Case No. 16503. Presented is the
issue of whether or not damages may be recovered for a breach of promise to marry on
the basis of Article 21 of the Civil Code of the Philippines.

The antecedents of this case are not complicated:

On 27 October 1987, private respondent, without the assistance of counsel, filed with
the aforesaid trial court a complaint 2 for damages against the petitioner for the alleged
violation of their agreement to get married. She alleges in said complaint that: she is
twenty-two (22) years old, single, Filipino and a pretty lass of good moral character and
reputation duly respected in her community; petitioner, on the other hand, is an Iranian
citizen residing at the Lozano Apartments, Guilig, Dagupan City, and is an exchange
student taking a medical course at the Lyceum Northwestern Colleges in Dagupan City;
before 20 August 1987, the latter courted and proposed to marry her; she accepted his
love on the condition that they would get married; they therefore agreed to get married
after the end of the school semester, which was in October of that year; petitioner then
visited the private respondent's parents in Bañaga, Bugallon, Pangasinan to secure
their approval to the marriage; sometime in 20 August 1987, the petitioner forced her to
live with him in the Lozano Apartments; she was a virgin before she began living with
him; a week before the filing of the complaint, petitioner's attitude towards her started to
change; he maltreated and threatened to kill her; as a result of such maltreatment, she
sustained injuries; during a confrontation with a representative of the barangay captain
of Guilig a day before the filing of the complaint, petitioner repudiated their marriage
agreement and asked her not to live with him anymore and; the petitioner is already
married to someone living in Bacolod City. Private respondent then prayed for judgment
ordering the petitioner to pay her damages in the amount of not less than P45,000.00,
reimbursement for actual expenses amounting to P600.00, attorney's fees and costs,
and granting her such other relief and remedies as may be just and equitable. The
complaint was docketed as Civil Case No. 16503.

In his Answer with Counterclaim, 3 petitioner admitted only the personal circumstances
of the parties as averred in the complaint and denied the rest of the allegations either for
lack of knowledge or information sufficient to form a belief as to the truth thereof or
because the true facts are those alleged as his Special and Affirmative Defenses. He
thus claimed that he never proposed marriage to or agreed to be married with the
private respondent; he neither sought the consent and approval of her parents nor
forced her to live in his apartment; he did not maltreat her, but only told her to stop
coming to his place because he discovered that she had deceived him by stealing his
money and passport; and finally, no confrontation took place with a representative of the
barangay captain. Insisting, in his Counterclaim, that the complaint is baseless and
unfounded and that as a result thereof, he was unnecessarily dragged into court and
compelled to incur expenses, and has suffered mental anxiety and a besmirched
reputation, he prayed for an award of P5,000.00 for miscellaneous expenses and
P25,000.00 as moral damages.

After conducting a pre-trial on 25 January 1988, the trial court issued a Pre-Trial Order 4
embodying the stipulated facts which the parties had agreed upon, to wit:

1. That the plaintiff is single and resident (sic) of Bañaga, Bugallon, Pangasinan, while
the defendant is single, Iranian citizen and resident (sic) of Lozano Apartment, Guilig,
Dagupan City since September 1, 1987 up to the present;

2. That the defendant is presently studying at Lyceum Northwestern, Dagupan City,

College of Medicine, second year medicine proper;

3. That the plaintiff is (sic) an employee at Mabuhay Luncheonette , Fernandez Avenue,

Dagupan City since July, 1986 up to the present and a (sic) high school graduate;

4. That the parties happened to know each other when the manager of the Mabuhay
Luncheonette, Johhny Rabino introduced the defendant to the plaintiff on August 3, 1986.

After trial on the merits, the lower court, applying Article 21 of the Civil Code, rendered
on 16 October 1989 a decision 5 favoring the private respondent. The petitioner was thus
ordered to pay the latter damages and attorney's fees; the dispositive portion of the
decision reads:

IN THE LIGHT of the foregoing consideration, judgment is hereby rendered in favor of the
plaintiff and against the defendant.
 1. Condemning (sic) the defendant to pay the plaintiff the sum of twenty thousand
(P20,000.00) pesos as moral damages.

2. Condemning further the defendant to play the plaintiff the sum of three thousand
(P3,000.00) pesos as atty's fees and two thousand (P2,000.00) pesos at (sic) litigation
expenses and to pay the costs.

3. All other claims are denied. 6

The decision is anchored on the trial court's findings and conclusions that (a) petitioner
and private respondent were lovers, (b) private respondent is not a woman of loose
morals or questionable virtue who readily submits to sexual advances, (c) petitioner,
through machinations, deceit and false pretenses, promised to marry private
respondent, d) because of his persuasive promise to marry her, she allowed herself to
be deflowered by him, (e) by reason of that deceitful promise, private respondent and
her parents — in accordance with Filipino customs and traditions — made some
preparations for the wedding that was to be held at the end of October 1987 by looking
for pigs and chickens, inviting friends and relatives and contracting sponsors, (f)
petitioner did not fulfill his promise to marry her and (g) such acts of the petitioner, who
is a foreigner and who has abused Philippine hospitality, have offended our sense of
morality, good customs, culture and traditions. The trial court gave full credit to the
private respondent's testimony because, inter alia, she would not have had the temerity
and courage to come to court and expose her honor and reputation to public scrutiny
and ridicule if her claim was false. 7

The above findings and conclusions were culled from the detailed summary of the
evidence for the private respondent in the foregoing decision, digested by the
respondent Court as follows:

According to plaintiff, who claimed that she was a virgin at the time and that she never
had a boyfriend before, defendant started courting her just a few days after they first met.
He later proposed marriage to her several times and she accepted his love as well as his
proposal of marriage on August 20, 1987, on which same day he went with her to her
hometown of Bañaga, Bugallon, Pangasinan, as he wanted to meet her parents and
inform them of their relationship and their intention to get married. The photographs Exhs.
"A" to "E" (and their submarkings) of defendant with members of plaintiff's family or with
plaintiff, were taken that day. Also on that occasion, defendant told plaintiffs parents and
brothers and sisters that he intended to marry her during the semestral break in October,
1987, and because plaintiff's parents thought he was good and trusted him, they agreed
to his proposal for him to marry their daughter, and they likewise allowed him to stay in
their house and sleep with plaintiff during the few days that they were in Bugallon. When
plaintiff and defendant later returned to Dagupan City, they continued to live together in
defendant's apartment. However, in the early days of October, 1987, defendant would tie
plaintiff's hands and feet while he went to school, and he even gave her medicine at 4
o'clock in the morning that made her sleep the whole day and night until the following
day. As a result of this live-in relationship, plaintiff became pregnant, but defendant gave
her some medicine to abort the fetus. Still plaintiff continued to live with defendant and
kept reminding him of his promise to marry her until he told her that he could not do so
because he was already married to a girl in Bacolod City. That was the time plaintiff left
defendant, went home to her parents, and thereafter consulted a lawyer who
accompanied her to the barangay captain in Dagupan City. Plaintiff, her lawyer, her
 godmother, and a barangay tanod sent by the barangay captain went to talk to defendant
to still convince him to marry plaintiff, but defendant insisted that he could not do so
because he was already married to a girl in Bacolod City, although the truth, as stipulated
by the parties at the pre-trial, is that defendant is still single.

Plaintiff's father, a tricycle driver, also claimed that after defendant had informed them of
his desire to marry Marilou, he already looked for sponsors for the wedding, started
preparing for the reception by looking for pigs and chickens, and even already invited
many relatives and friends to the forthcoming wedding. 8

Petitioner appealed the trial court's decision to the respondent Court of Appeals which
docketed the case as CA-G.R. CV No. 24256. In his Brief, 9 he contended that the trial
court erred (a) in not dismissing the case for lack of factual and legal basis and (b) in
ordering him to pay moral damages, attorney's fees, litigation expenses and costs.

On 18 February 1991, respondent Court promulgated the challenged decision 10

affirming in toto the trial court's ruling of 16 October 1989. In sustaining the trial court's
findings of fact, respondent Court made the following analysis:

First of all, plaintiff, then only 21 years old when she met defendant who was already 29
years old at the time, does not appear to be a girl of loose morals. It is uncontradicted
that she was a virgin prior to her unfortunate experience with defendant and never had
boyfriend. She is, as described by the lower court, a barrio lass "not used and
accustomed to trend of modern urban life", and certainly would (sic) not have allowed
"herself to be deflowered by the defendant if there was no persuasive promise made by
the defendant to marry her." In fact, we agree with the lower court that plaintiff and
defendant must have been sweethearts or so the plaintiff must have thought because of
the deception of defendant, for otherwise, she would not have allowed herself to be
photographed with defendant in public in so (sic) loving and tender poses as those
depicted in the pictures Exhs. "D" and "E". We cannot believe, therefore, defendant's
pretense that plaintiff was a nobody to him except a waitress at the restaurant where he
usually ate. Defendant in fact admitted that he went to plaintiff's hometown of Bañaga,
Bugallon, Pangasinan, at least thrice; at (sic) the town fiesta on February 27, 1987 (p. 54,
tsn May 18, 1988), at (sic) a beach party together with the manager and employees of
the Mabuhay Luncheonette on March 3, 1987 (p. 50, tsn id.), and on April 1, 1987 when
he allegedly talked to plaintiff's mother who told him to marry her daughter (pp. 55-56, tsn
id.). Would defendant have left Dagupan City where he was involved in the serious study
of medicine to go to plaintiff's hometown in Bañaga, Bugallon, unless there was (sic)
some kind of special relationship between them? And this special relationship must
indeed have led to defendant's insincere proposal of marriage to plaintiff, communicated
not only to her but also to her parents, and (sic) Marites Rabino, the owner of the
restaurant where plaintiff was working and where defendant first proposed marriage to
her, also knew of this love affair and defendant's proposal of marriage to plaintiff, which
she declared was the reason why plaintiff resigned from her job at the restaurant after
she had accepted defendant's proposal (pp. 6-7, tsn March 7, 1988).

Upon the other hand, appellant does not appear to be a man of good moral character and
must think so low and have so little respect and regard for Filipino women that he openly
admitted that when he studied in Bacolod City for several years where he finished his
B.S. Biology before he came to Dagupan City to study medicine, he had a common-law
wife in Bacolod City. In other words, he also lived with another woman in Bacolod City but
did not marry that woman, just like what he did to plaintiff. It is not surprising, then, that
 he felt so little compunction or remorse in pretending to love and promising to marry
plaintiff, a young, innocent, trustful country girl, in order to satisfy his lust on her. 11

and then concluded:

In sum, we are strongly convinced and so hold that it was defendant-appellant's

fraudulent and deceptive protestations of love for and promise to marry plaintiff that made
her surrender her virtue and womanhood to him and to live with him on the honest and
sincere belief that he would keep said promise, and it was likewise these (sic) fraud and
deception on appellant's part that made plaintiff's parents agree to their daughter's living-
in with him preparatory to their supposed marriage. And as these acts of appellant are
palpably and undoubtedly against morals, good customs, and public policy, and are even
gravely and deeply derogatory and insulting to our women, coming as they do from a
foreigner who has been enjoying the hospitality of our people and taking advantage of the
opportunity to study in one of our institutions of learning, defendant-appellant should
indeed be made, under Art. 21 of the Civil Code of the Philippines, to compensate for the
moral damages and injury that he had caused plaintiff, as the lower court ordered him to
do in its decision in this case. 12

Unfazed by his second defeat, petitioner filed the instant petition on 26 March 1991; he
raises therein the single issue of whether or not Article 21 of the Civil Code applies to
the case at bar. 13

It is petitioner's thesis that said Article 21 is not applicable because he had not
committed any moral wrong or injury or violated any good custom or public policy; he
has not professed love or proposed marriage to the private respondent; and he has
never maltreated her. He criticizes the trial court for liberally invoking Filipino customs,
traditions and culture, and ignoring the fact that since he is a foreigner, he is not
conversant with such Filipino customs, traditions and culture. As an Iranian Moslem, he
is not familiar with Catholic and Christian ways. He stresses that even if he had made a
promise to marry, the subsequent failure to fulfill the same is excusable or tolerable
because of his Moslem upbringing; he then alludes to the Muslim Code which
purportedly allows a Muslim to take four (4) wives and concludes that on the basis
thereof, the trial court erred in ruling that he does not posses good moral character.
Moreover, his controversial "common law life" is now his legal wife as their marriage
had been solemnized in civil ceremonies in the Iranian Embassy. As to his unlawful
cohabitation with the private respondent, petitioner claims that even if responsibility
could be pinned on him for the live-in relationship, the private respondent should also be
faulted for consenting to an illicit arrangement. Finally, petitioner asseverates that even
if it was to be assumed arguendo that he had professed his love to the private
respondent and had also promised to marry her, such acts would not be actionable in
view of the special circumstances of the case. The mere breach of promise is not
actionable. 14

On 26 August 1991, after the private respondent had filed her Comment to the petition
and the petitioner had filed his Reply thereto, this Court gave due course to the petition
and required the parties to submit their respective Memoranda, which they
subsequently complied with.
As may be gleaned from the foregoing summation of the petitioner's arguments in
support of his thesis, it is clear that questions of fact, which boil down to the issue of the
credibility of witnesses, are also raised. It is the rule in this jurisdiction that appellate
courts will not disturb the trial court's findings as to the credibility of witnesses, the latter
court having heard the witnesses and having had the opportunity to observe closely
their deportment and manner of testifying, unless the trial court had plainly overlooked
facts of substance or value which, if considered, might affect the result of the case. 15

Petitioner has miserably failed to convince Us that both the appellate and trial courts
had overlooked any fact of substance or values which could alter the result of the case.

Equally settled is the rule that only questions of law may be raised in a petition for
review on certiorari under Rule 45 of the Rules of Court. It is not the function of this
Court to analyze or weigh all over again the evidence introduced by the parties before
the lower court. There are, however, recognized exceptions to this rule. Thus, in Medina
vs. Asistio, Jr., 16 this Court took the time, again, to enumerate these exceptions:

xxx xxx xxx

(1) When the conclusion is a finding grounded entirely on speculation, surmises or

conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made is
manifestly mistaken, absurb or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3)
Where there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4)
When the judgment is based on a misapprehension of facts (Cruz v. Sosing,
L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v. Villaseca,
L-9590 Ap. 30, 1957; unrep.) (6) When the Court of Appeals, in making its findings, went
beyond the issues of the case and the same is contrary to the admissions of both
appellate and appellee (Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401
[1958]);
(7) The findings of the Court of Appeals are contrary to those of the trial court (Garcia v.
Court of Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593
[1986]); (8) When the findings of fact are conclusions without citation of specific evidence
on which they are based (Ibid.,); (9) When the facts set forth in the petition as well as in
the petitioners main and reply briefs are not disputed by the respondents (Ibid.,); and (10)
The finding of fact of the Court of Appeals is premised on the supposed absence of
evidence and is contradicted by the evidence on record (Salazar v. Gutierrez, 33 SCRA
242 [1970]).

Petitioner has not endeavored to joint out to Us the existence of any of the above
quoted exceptions in this case. Consequently, the factual findings of the trial and
appellate courts must be respected.

And now to the legal issue.

The existing rule is that a breach of promise to marry per se is not an actionable wrong.
17
Congress deliberately eliminated from the draft of the New Civil Code the provisions
that would have made it so. The reason therefor is set forth in the report of the Senate
Committees on the Proposed Civil Code, from which We quote:
 The elimination of this chapter is proposed. That breach of promise to marry is not
actionable has been definitely decided in the case of De Jesus vs. Syquia. 18 The history
of breach of promise suits in the United States and in England has shown that no other
action lends itself more readily to abuse by designing women and unscrupulous men. It is
this experience which has led to the abolition of rights of action in the so-called Heart
Balm suits in many of the American states. . . . 19

This notwithstanding, the said Code contains a provision, Article 21, which is designed
to expand the concept of torts or quasi-delict in this jurisdiction by granting adequate
legal remedy for the untold number of moral wrongs which is impossible for human
foresight to specifically enumerate and punish in the statute books. 20

As the Code Commission itself stated in its Report:

But the Code Commission had gone farther than the sphere of wrongs defined or
determined by positive law. Fully sensible that there are countless gaps in the statutes,
which leave so many victims of moral wrongs helpless, even though they have actually
suffered material and moral injury, the Commission has deemed it necessary, in the
interest of justice, to incorporate in the proposed Civil Code the following rule:

Art. 23. Any person who wilfully causes loss or injury to another in a
manner that is contrary to morals, good customs or public policy shall
compensate the latter for the damage.

An example will illustrate the purview of the foregoing norm: "A" seduces the nineteen-
year old daughter of "X". A promise of marriage either has not been made, or can not be
proved. The girl becomes pregnant. Under the present laws, there is no crime, as the girl
is above nineteen years of age. Neither can any civil action for breach of promise of
marriage be filed. Therefore, though the grievous moral wrong has been committed, and
though the girl and family have suffered incalculable moral damage, she and her parents
cannot bring action for damages. But under the proposed article, she and her parents
would have such a right of action.

Thus at one stroke, the legislator, if the forgoing rule is approved, would vouchsafe
adequate legal remedy for that untold number of moral wrongs which it is impossible for
human foresight to provide for specifically in the statutes. 21

Article 2176 of the Civil Code, which defines a quasi-delict thus:

Whoever by act or omission causes damage to another, there being fault or negligence,
is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing
contractual relation between the parties, is called a quasi-delict and is governed by the
provisions of this Chapter.

is limited to negligent acts or omissions and excludes the notion of willfulness or

intent. Quasi-delict, known in Spanish legal treatises as culpa aquiliana, is a civil
law concept while torts is an Anglo-American or common law concept. Torts is
much broader than culpa aquiliana because it includes not only negligence, but
international criminal acts as well such as assault and battery, false
imprisonment and deceit. In the general scheme of the Philippine legal system
envisioned by the Commission responsible for drafting the New Civil Code,
 intentional and malicious acts, with certain exceptions, are to be governed by the
Revised Penal Code while negligent acts or omissions are to be covered by
Article 2176 of the Civil Code. 22 In between these opposite spectrums are
injurious acts which, in the absence of Article 21, would have been beyond
redress. Thus, Article 21 fills that vacuum. It is even postulated that together with
Articles 19 and 20 of the Civil Code, Article 21 has greatly broadened the scope
of the law on civil wrongs; it has become much more supple and adaptable than
the Anglo-American law on torts. 23

In the light of the above laudable purpose of Article 21, We are of the opinion, and so
hold, that where a man's promise to marry is in fact the proximate cause of the
acceptance of his love by a woman and his representation to fulfill that promise
thereafter becomes the proximate cause of the giving of herself unto him in a sexual
congress, proof that he had, in reality, no intention of marrying her and that the promise
was only a subtle scheme or deceptive device to entice or inveigle her to accept him
and to obtain her consent to the sexual act, could justify the award of damages pursuant
to Article 21 not because of such promise to marry but because of the fraud and deceit
behind it and the willful injury to her honor and reputation which followed thereafter. It is
essential, however, that such injury should have been committed in a manner contrary
to morals, good customs or public policy.

In the instant case, respondent Court found that it was the petitioner's "fraudulent and
deceptive protestations of love for and promise to marry plaintiff that made her
surrender her virtue and womanhood to him and to live with him on the honest and
sincere belief that he would keep said promise, and it was likewise these fraud and
deception on appellant's part that made plaintiff's parents agree to their daughter's
living-in with him preparatory to their supposed marriage." 24 In short, the private
respondent surrendered her virginity, the cherished possession of every single Filipina,
not because of lust but because of moral seduction — the kind illustrated by the Code
Commission in its example earlier adverted to. The petitioner could not be held liable for
criminal seduction punished under either Article 337 or Article 338 of the Revised Penal
Code because the private respondent was above eighteen (18) years of age at the time
of the seduction.

Prior decisions of this Court clearly suggest that Article 21 may be applied in a breach of
promise to marry where the woman is a victim of moral seduction. Thus, in
Hermosisima vs. Court of Appeals, 25 this Court denied recovery of damages to the
woman because:

. . . we find ourselves unable to say that petitioner is morally guilty of seduction, not only
because he is approximately ten (10) years younger than the complainant — who was
around thirty-six (36) years of age, and as highly enlightened as a former high school
teacher and a life insurance agent are supposed to be — when she became intimate with
petitioner, then a mere apprentice pilot, but, also, because the court of first instance
found that, complainant "surrendered herself" to petitioner because, "overwhelmed by her
love" for him, she "wanted to bind" him by having a fruit of their engagement even before
they had the benefit of clergy.
In Tanjanco vs. Court of Appeals, 26 while this Court likewise hinted at possible recovery
if there had been moral seduction, recovery was eventually denied because We were
not convinced that such seduction existed. The following enlightening disquisition and
conclusion were made in the said case:

The Court of Appeals seem to have overlooked that the example set forth in the Code
Commission's memorandum refers to a tort upon a minor who had been seduced. The
essential feature is seduction, that in law is more than mere sexual intercourse, or a
breach of a promise of marriage; it connotes essentially the idea of deceit, enticement,
superior power or abuse of confidence on the part of the seducer to which the woman
has yielded (U.S. vs. Buenaventura, 27 Phil. 121; U.S. vs. Arlante, 9 Phil. 595).

It has been ruled in the Buenaventura case (supra) that —

To constitute seduction there must in all cases be some sufficient

promise or inducement and the woman must yield because of the
promise or other inducement. If she consents merely from carnal lust and
the intercourse is from mutual desire, there is no seduction (43 Cent. Dig.
tit. Seduction, par. 56) She must be induced to depart from the path of
virtue by the use of some species of arts, persuasions and wiles, which
are calculated to have and do have that effect, and which result in her
person to ultimately submitting her person to the sexual embraces of her
seducer (27 Phil. 123).

And in American Jurisprudence we find:

On the other hand, in an action by the woman, the enticement,

persuasion or deception is the essence of the injury; and a mere proof of
intercourse is insufficient to warrant a recovery.

Accordingly it is not seduction where the willingness arises out of sexual

desire of curiosity of the female, and the defendant merely affords her
the needed opportunity for the commission of the act. It has been
emphasized that to allow a recovery in all such cases would tend to the
demoralization of the female sex, and would be a reward for unchastity
by which a class of adventuresses would be swift to profit. (47 Am. Jur.
662)

xxx xxx xxx

Over and above the partisan allegations, the fact stand out that for one whole year, from
1958 to 1959, the plaintiff-appellee, a woman of adult age, maintain intimate sexual
relations with appellant, with repeated acts of intercourse. Such conduct is incompatible
with the idea of seduction. Plainly there is here voluntariness and mutual passion; for had
the appellant been deceived, had she surrendered exclusively because of the deceit,
artful persuasions and wiles of the defendant, she would not have again yielded to his
embraces, much less for one year, without exacting early fulfillment of the alleged
promises of marriage, and would have cut short all sexual relations upon finding that
defendant did not intend to fulfill his defendant did not intend to fulfill his promise. Hence,
we conclude that no case is made under article 21 of the Civil Code, and no other cause
of action being alleged, no error was committed by the Court of First Instance in
dismissing the complaint. 27
In his annotations on the Civil Code, 28 Associate Justice Edgardo L. Paras, who
recently retired from this Court, opined that in a breach of promise to marry where there
had been carnal knowledge, moral damages may be recovered:

. . . if there be criminal or moral seduction, but not if the intercourse was due to mutual
lust. (Hermosisima vs. Court of Appeals,
L-14628, Sept. 30, 1960; Estopa vs. Piansay, Jr., L-14733, Sept. 30, 1960; Batarra vs.
Marcos, 7 Phil. 56 (sic); Beatriz Galang vs. Court of Appeals, et al., L-17248, Jan. 29,
1962). (In other words, if the CAUSE be the promise to marry, and the EFFECT be the
carnal knowledge, there is a chance that there was criminal or moral seduction, hence
recovery of moral damages will prosper. If it be the other way around, there can be no
recovery of moral damages, because here mutual lust has intervened). . . .

together with "ACTUAL damages, should there be any, such as the expenses for
the wedding presentations (See Domalagon v. Bolifer, 33 Phil. 471).

Senator Arturo M. Tolentino 29 is also of the same persuasion:

It is submitted that the rule in Batarra vs. Marcos, 30 still subsists, notwithstanding the
incorporation of the present article 31 in the Code. The example given by the Code
Commission is correct, if there was seduction, not necessarily in the legal sense, but in
the vulgar sense of deception. But when the sexual act is accomplished without any
deceit or qualifying circumstance of abuse of authority or influence, but the woman,
already of age, has knowingly given herself to a man, it cannot be said that there is an
injury which can be the basis for indemnity.

But so long as there is fraud, which is characterized by willfulness (sic), the action lies.
The court, however, must weigh the degree of fraud, if it is sufficient to deceive the
woman under the circumstances, because an act which would deceive a girl sixteen
years of age may not constitute deceit as to an experienced woman thirty years of age.
But so long as there is a wrongful act and a resulting injury, there should be civil liability,
even if the act is not punishable under the criminal law and there should have been an
acquittal or dismissal of the criminal case for that reason.

We are unable to agree with the petitioner's alternative proposition to the effect that
granting, for argument's sake, that he did promise to marry the private respondent, the
latter is nevertheless also at fault. According to him, both parties are in pari delicto;
hence, pursuant to Article 1412(1) of the Civil Code and the doctrine laid down in
Batarra vs. Marcos, 32 the private respondent cannot recover damages from the
petitioner. The latter even goes as far as stating that if the private respondent had
"sustained any injury or damage in their relationship, it is primarily because of her own
doing, 33 for:

. . . She is also interested in the petitioner as the latter will become a doctor sooner or
later. Take notice that she is a plain high school graduate and a mere employee . . .
(Annex "C") or a waitress (TSN, p. 51, January 25, 1988) in a luncheonette and without
doubt, is in need of a man who can give her economic security. Her family is in dire need
of financial assistance. (TSN, pp. 51-53, May 18, 1988). And this predicament prompted
her to accept a proposition that may have been offered by the petitioner. 34
These statements reveal the true character and motive of the petitioner. It is clear that
he harbors a condescending, if not sarcastic, regard for the private respondent on
account of the latter's ignoble birth, inferior educational background, poverty and, as
perceived by him, dishonorable employment. Obviously then, from the very beginning,
he was not at all moved by good faith and an honest motive. Marrying with a woman so
circumstances could not have even remotely occurred to him. Thus, his profession of
love and promise to marry were empty words directly intended to fool, dupe, entice,
beguile and deceive the poor woman into believing that indeed, he loved her and would
want her to be his life's partner. His was nothing but pure lust which he wanted satisfied
by a Filipina who honestly believed that by accepting his proffer of love and proposal of
marriage, she would be able to enjoy a life of ease and security. Petitioner clearly
violated the Filipino's concept of morality and brazenly defied the traditional respect
Filipinos have for their women. It can even be said that the petitioner committed such
deplorable acts in blatant disregard of Article 19 of the Civil Code which directs every
person to act with justice, give everyone his due and observe honesty and good faith in
the exercise of his rights and in the performance of his obligations.

No foreigner must be allowed to make a mockery of our laws, customs and traditions.

The pari delicto rule does not apply in this case for while indeed, the private respondent
may not have been impelled by the purest of intentions, she eventually submitted to the
petitioner in sexual congress not out of lust, but because of moral seduction. In fact, it is
apparent that she had qualms of conscience about the entire episode for as soon as
she found out that the petitioner was not going to marry her after all, she left him. She is
not, therefore, in pari delicto with the petitioner. Pari delicto means "in equal fault; in a
similar offense or crime; equal in guilt or in legal fault." 35 At most, it could be conceded
that she is merely in delicto.

Equity often interferes for the relief of the less guilty of the parties, where his
transgression has been brought about by the imposition of undue influence of the party
on whom the burden of the original wrong principally rests, or where his consent to the
transaction was itself procured by
fraud. 36

In Mangayao vs. Lasud, 37 We declared:

Appellants likewise stress that both parties being at fault, there should be no action by
one against the other (Art. 1412, New Civil Code). This rule, however, has been
interpreted as applicable only where the fault on both sides is, more or less, equivalent. It
does not apply where one party is literate or intelligent and the other one is not. (c.f.
Bough vs. Cantiveros, 40 Phil. 209).

We should stress, however, that while We find for the private respondent, let it not be
said that this Court condones the deplorable behavior of her parents in letting her and
the petitioner stay together in the same room in their house after giving approval to their
marriage. It is the solemn duty of parents to protect the honor of their daughters and
infuse upon them the higher values of morality and dignity.
WHEREFORE, finding no reversible error in the challenged decision, the instant petition
is hereby DENIED, with costs against the petitioner.

SO ORDERED.

Feliciano, Bidin, Romero and Melo, JJ., concur.

Gutierrez, Jr., J., is on leave.

# Footnotes

1 Annex "G" of Petition; Rollo, 53-62. Per Associate Justice Alicia V. Sempio-Diy,
concurred in by Associate Justices Jose C. Campos, Jr. and Jaime M. Lantin.

2 Annex "A" of Petition; Rollo, 20-22.

3 Annex "B" of Petition; Rollo, 23-24.

4 Annex "C", Id.; Id., 25.

5 Annex "D" of Petition; Rollo, 26-33. Per Judge Antonio M. Belen.

6 Id., 33.

7 Rollo, 31-33.

8 Rollo, 54-55.

9 Exhibit "E" of Petition; Rollo, 34-50.

10 Annex "G", Id.; Id.; 53-62.

11 Rollo, 58-59.

12 Rollo, 61.

13 Id., 11.

14 In support thereof, he cites Despi vs. Aliosco, [CA] 64 O.G.; Wassmer vs. Velez, 12
SCRA 648 [1964]; Hermosisima vs. Court of Appeals, 109 Phil. 629 [1960]; and Estopa
vs. Piansay, 109 Phil. 640 [1960].

15 People vs. Garcia, 89 SCRA 440 [1979]; People vs. Bautista, 92 SCRA 465 [1979];
People vs. Abejuela, 92 SCRA 503 [1979]; People vs. Arciaga, 98 SCRA 1 [1980];
People vs. Marzan, 128 SCRA 203 [1984]; People vs. Alcid, 135 SCRA 280 [1985];
People vs. Sanchez, 199 SCRA 414 [1991]; and People vs. Atilano, 204 SCRA 278
[1991].
16 191 SCRA 218 [1990], footnote omitted; see also, Remalante vs. Tibe, 158 SCRA 138
[1988].

17 Hermosisima vs. Court of Appeals, 109 Phil. 629 [1960]; Estopa vs. Piansay, 109 Phil.
640 [1960].

18 58 Phil. 866 [1933].

19 Congressional Record, vol. IV, No. 79, Thursday, 14 May 1949, 2352.

20 Philippine National Bank vs. Court of Appeals, 83 SCRA 237 [1978].

21 Report of the Code Commission, 39-40. This passage is quoted, except for the last
paragraph, in Tanjanco vs. Court of Appeals, 18 SCRA 994, 996-997 [1966]; the Article
23 referred to is now Article 21.

22 Report of the Code Commission, 161-162.

23 TOLENTINO, A.M., Commentaries and Jurisprudence on the Civil Code of the

Philippines, vol. 1, 1985 ed., 72.

24. Rollo, 61.

25. Supra.

26. Supra.

27 At pages 997-999.

28 Civil Code of the Philippines Annotated, vol. I, Eleventh ed., (1984), 91-92.

29 Commentaries and Jurisprudence on the Civil Code of the Philippines, vol. 1, 1985
ed., 76-77, omitting footnotes.

30 7 Phil. 156 [1906].

31 Article 21.

32 Supra.

33 Rollo, 16.

34 Id., 16-17.

35 Black's Law Dictionary, Fifth ed., 1004.

36 37 Am Jur 2d, 401, omitting citations.

37 11 SCRA 158 [1964]; see also, Liguez vs. Court of Appeals 102 Phil. 577 [1975].
Baksh v CA 219 SCRA 115

Facts:

Gashem Shookat Baksh is an Iranian enrolled in a medical school while Marilou

Gonzales works in the cafeteria of said school. According to Marilou, Gashem courted
and proposed to marry her. Because of his persuasive promise to marry her, she
allowed herself to be deflowered by him. No marriage came hence an action for breach
of promise to marry.

Issue:

Is a breach of promise to marry an actionable wrong?

Is Article 21 of the Civil Code applicable in the case?

Held:

[I]The existing rule is that breach of promise to marry per se is not an actionable wrong.
Congress deliberately eliminated from the draft of the New Civil Code the provisions
that would have made it so.

This notwithstanding, the said Code contains a provision, Article 21, which is designed
to expand the concept of torts or quasi-delicts in this jurisdiction by granting adequate
legal remedy for the untold number of moral wrongs which is impossible for human
foresight to specifically enumerate and punish in the statute books.

Where a man's promise to marry is in fact the proximate cause of the acceptance of his
love by a woman and his representation to fulfill that promise thereafter becomes the
proximate cause of the giving of herself unto him in a sexual congress, proof that he
had, in reality, no intention of marrying her and that the promise was only a subtle
scheme or deceptive device to entice or inveigle her to accept his and to obtain her
consent to the sexual act, could justify the award of damages pursuant to Article 21 not
because of such promise to marry but because of the fraud and deceit behind it and the
willful injury to her honor and reputation which followed thereafter. It is essential
however, that such injury should have been committed in a manner contrary to morals,
good customs or public policy.