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FIRST DIVISION

G.R. No. 112550 - February 5, 2001

DICK L. GO, Petitioner, v. COURT OF APPEALS and SECURITY BANK & TRUST COMPANY, respondents.

YNARES-SANTIAGO, J.:

This is a petition for review of the decision1 of the Court of Appeals in CA: G.R. CY No. 15268, which reversed and set aside the decision2 of the Regional Trial Court, Branch 88 of Quezon City in Civil Case No. Q-35744.

The following facts were found by the trial court:

National Steel Corporation (NSC) purchased two Philippine National Bank (PNB) Manager's Checks to wit: Check No. J-81-006142, dated May 11, 1982 in the sum of P911,981.00 (hereinafter, the "first check"); and Check No. J-81-00698, dated May 14, 1982 in the sum of P1,511,293.00 (hereinafter, the "second check"), as payment for customs duties and taxes due on NSC's importation of steel plates. Both checks bore the notation: "For Payee's Account", and were made payable to the Collector of Customs. One Edmund Ulibarri, an NSC official, delivered the checks to LMC Brokerage Firm. Consequently, the steel plates were released from the Bureau of Customs and the official receipts, supposedly indicating payment, were delivered to NSC.

On May 31, 1982, the first check was deposited with private respondent Security Bank and Trust Company (SBTC), Caloocan City Branch, and credited on June 1, 1982 in Current Account No. 2110-0282-47, maintained by a certain Robert Santos with SBTC, Congressional Branch, Quezon City, which was opened only the day before, on May 31, 1982.

On June 21, 1982, another account in the name of Roberto Santos (C/A No. 3310-0031-03) was opened in SBTC's Caloocan City Branch. On the same day, the second check was deposited in C/A No.2110-0282-47 in the Congressional Branch, but credited to the newly opened C/A No. 3310-0031-03. The Congressional Branch accepted the check and sent it for clearing, and forwarded the deposit slip and the receipt for transfer of the account to the Caloocan City Branch. Thereafter, withdrawals of funds for the two Robert Santos accounts were made.

The NSC learned that the official receipts issued to it for payment of customs duties and taxes were fake, and was required to pay the customs duties a second time. Meanwhile, SBTC, after discovering the anomaly, paid PNB the sum of P2,352,966.00 as reimbursement for the proceeds of the two checks which PNB had to refund to NSC.

SBTC caused the conduct of an internal investigation, which revealed the participation of petitioner Dick Go, Assistant Manager-in-charge of SBTC Congressional Branch Accounting Department, together with his co-accused Eduardo L. Lauchengco and Generoso B. Fermin, in the opening of the Robert Santos accounts, the deposit in said accounts of the subject two checks although payable to the Collector of Customs, and the siphoning of the proceeds of the checks.

Thereafter, two (2) criminal informations for estafa through falsification of commercial documents were filed against petitioner, Eduardo L. Lauchengco and Generoso B. Fermin. At the same time, a complaint for sum of money was filed against petitioner together with Spouses Herminio and Clara Lauchengco, Luisito Honorio, Danilo Fiesta, B.S. Santos and Eugene Gan, docketed as Civil Case No. Q-35744. The two criminal cases were tried jointly with the civil case.

The lower court rendered judgment acquitting petitioner Dick Go and his co-accused of the crime of estafa for failure of the prosecution to prove their guilt beyond reasonable doubt. The court likewise dismissed SBTC's complaint for recovery of sum of money against petitioner and his co-defendants, as well as petitioner's counterclaim.

On appeal, the Court of Appeals reversed and set aside the decision of the trial court, disposing thus:

WHEREFORE, premises considered, the decision appealed from dismissing plaintiff-appellant's complaint in Civil Case No. Q-35744, and ordering plaintiff-appellant to return and/or release to defendant-appellant Dick Go all funds in its control under the account of said Dick Go, including accrued earnings, if any, and lifting and setting aside all attachments and/or garnishments issued by reason of the case is REVERSED and SET ASIDE and a new one entered ordering defendant-appellant Dick Go and defendant Eduardo Lauchengco to pay, jointly and severally, to plaintiff-appellant the amount of P1,307,811.62, with interest at the legal rate from September 7, 1982 until fully paid. In all other respects, the decision appealed from is affirmed. With costs against defendant-appellant.

In reversing and setting aside the decision of the lower court, the Court of Appeals affirmed the lower court's factual findings but made "corrections and deletions" therein, thus:

The two PNB checks were traced to have been deposited in the accounts of one Robert Santos at the SBTC Congressional Branch in Quezon City and in the SBTC Caloocan City Branch. The Congressional Branch Account (CA-2110-0282-47) was opened on May 31, 1982 (not on May 3, 1982), admittedly with the participation of Dick Go who, however, insisted that he met a real live person who was a walk-in-client, contrary to the prosecution's claim that the name Robert Santos and Dick Go are one and the same person. At the time the Congressional Branch account was opened, Dick Go was Assistant Manager-in-charge of Accounting Department, Nora Isidro was Branch Manager, and Dolores Satuito was Assistant Manager-in-charge of Cash Department which also superintended the New Accounts Department.

On June 21, 1982 (not sometime before June 18, 1982), Current Account No. CA-3310-0031-03 (not No. CA-33100031) in the name of Robert Santos was also opened at the SBTC Caloocan City Branch where accused Eduardo Lauchengco was then employed as bookkeeper. The account was opened with the intervention of Eduardo Lauchengco who reserved and opened the account without accomplishing the necessary papers, and received the corresponding checkbook which he then delivered to defendant-appellee Dick Go (TSN, November 16, 1984, pp. 10-17, (not that it is not clear under what circumstances the Caloocan City Branch account was opened) xxx.

Earlier, on June 3, 1982, a bank account in the name of Fernando Cruz was opened with the Philippine Bank of Communication (PBC for short) by accused Generoso Fermin who at that time was a bank officer at the PBC. Fermin admitted opening the fictitious account and making withdrawals therein but claimed that this was to accommodate Dick Go who was a former officemate -- Dick Go having previously worked with PBC. Eventually, the total sum of P902,500.00 was withdrawn from the Congressional Branch Account and P536,722.00 from the Caloocan City Branch Account. Some of the funds were later traced to have been deposited in the Fernando Cruz Account, in the account of Eduardo Lauchengco's mother, and others in the name of the other defendants in the civil action who were not charged in the criminal cases. (Decision, pp. 4-5, Rollo, pp. 76-77).3

In addition to the above corrections and deletions in the lower court's factual findings, the Court of Appeals found the following "additional facts to complete the story":

The first check, Exhibit H, was deposited on May 31, 1982 with plaintiff-appellant's Caloocan Branch, with the intervention of defendant-appellee Eduardo Lauchengco, and credited on June 1, 1982 to the Robert Santos account (No. 2110-0282-47) in the SBTC's Congressional Branch (TSN, November 16, 1994, p. 5-8) which was opened just a day before. On June 21, 1982 (the same day the Caloocan account of Robert Santos was opened), the second check, Manager's Check No. J81-006142, Exhibit A, for P1,511,293.00, was deposited in Robert Santos' account (CA #2110-0282-47) in SBTC's Congressional branch and credited to the newly opened Robert Santos' account (CA #3310-0031-03) in the Caloocan City Branch. Thus, SBTC's Congressional Branch accepted the check and sent it for clearing, and transmitted merely the deposit slip for the check, as well as the receipt of transfer of the account, to the Caloocan City Branch (TSN, March 21,1984, p. 9).

From June 3, 1982 up to June 24, 1982, withdrawals from the two accounts of Robert Santos through clearing, as well as encashments over the counter, and deposits to various account, including those to Fernando Cruz' account with the PBCom, were made as follows: (Listing of checks omitted)4

In this petition for review, petitioner submits the following errors allegedly committed by the Court of Appeals:

I

The Court of Appeals gravely abused its discretion when it disregarded the findings of fact of the trial court and, thereafter, reversed and set aside the decision of the trial court, on the basis of mere conclusions without support in, nor citation of, specific evidence, or that its findings arid decision are premised on the absence of evidence and are contradicted by the evidence on record, or that it overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different result;

II

The Court of Appeals committed an error of law in allowing the respondent bank to recover from petitioner the amounts it paid to the Philippine National Bank (PNB) representing the proceeds of the two (2) PNB manager's checks placed in the Robert Santos account.5

Petitioner contends that the Court of Appeals made additional findings not supported by the evidence on record and that it abused its discretion in disregarding the factual findings of the lower court, He argues that the Court of Appeals' reversal of the decision of the lower court was based on unsupported conclusions and despite the absence of contrary evidence; and that it misappreciated the facts, thereby necessitating a review of factual matters by this Court.

In Reyes v. Court of Appeals,6 this Court held that factual findings of the trial court, when adopted and confirmed by the Court of Appeals, are final and conclusive and may not be reviewed on appeal; except: (1) when the inference made is manifestly mistaken, absurd or impossible; (2) when there is a grave abuse of discretion; (3) when the finding is grounded entirely on speculations, surmises or conjectures; (4) when the judgment of the Court of Appeals is based on misapprehension of facts; (5) when the findings of fact are conflicting; (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 appellant and appellee; (7) when the findings of the Court of Appeals are contrary to those of the trial court; (8) when the findings of fact are conclusions without citation of specific evidence on which they are based; (9) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties and which, if properly considered, would justify a different conclusion; and (10) when the findings of fact of the Court of Appeals are premised on the absence of evidence and are contradicted by the evidence on record.

While the Court of Appeals characterized the lower court's factual findings as "accurate" and observed that the antecedent facts as found by the lower court were "not disputed" by the parties, it reached a different conclusion as regards petitioner's civil liability. The issue, therefore, is whether, on the basis of the same factual findings, petitioner can be held civilly liable. Stated differently, the issue is whether from the evidence adduced before the lower court, there is sufficient proof as to the indispensable participation of petitioner in the opening of the accounts in the name of one allegedly inexistent and fictitious Robert Santos, the depositing of the PNB checks in said accounts, and the siphoning of the proceeds of said checks as charged in private respondent's complaint.

In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. "Preponderance of evidence" is the weight, credit, and value of the aggregate evidence on either side and is usually considered to be synonymous with the term "greater weight of the evidence" or "greater weight of the credible evidence." Preponderance of evidence is a phrase which, in the last analysis, means probability of the truth. It is evidence which is more convincing to the court as worthy of belief than that which is offered in opposition thereto.7 Rule 133, Section 1 of the Rules of Court provides the guidelines in determining preponderance of evidence, thus:

In civil cases, the party having the burden of proof must establish his case by a preponderance of evidence. In determining where the preponderance or superior weight of evidence on the issues involved lies the court may consider all the facts and circumstances of the case, the witnesses' manner of testifying, their intelligence, their means and opportunity of knowing the facts to which they are testifying, the nature of the facts to which they testify, the probability or improbability of their testimony, their interest or want of interest, and also their personal credibility so far as the same legitimately appear upon the trial. The court may also consider the number of witnesses, though the preponderance is not necessarily with the greater number.

In the case at bar, the judge who heard and saw the witnesses testify was not the same judge who penned the decision. As such, this Court is deprived of some important details necessary to determine the weight of evidence for either party. Be that as it may, this Court shall endeavour to weigh the evidence based on other factors 'available to this Court as can be gleaned principally from the recorded testimonies and the cold, hard transcripts of this case.

SBTC alleged that: 1) petitioner took advantage of his position as Assistant Branch Manager in facilitating the opening of Current Account No. 2110-0282-47 with the SBTC Congressional Branch in the name of one Robert Santos with full knowledge that he was inexistent; 2) petitioner took advantage of his position in processing the deposit .in the Robert Santos account of a crossed PNB--Manager's Check No.1-81-00698 in the amount of P911,981.00 with the notation "For Payee's Account Only", and made payable to the Collector of Customs; 3) petitioner took advantage of his position in causing the deposit in the Robert Santos account of a crossed PNB Manager's Check No. 1-81-006142, with the notation ."For Payee's Account Only", in the amount of P1,511,293.00, payable to the Collector of Customs; and 4) petitioner appropriated the proceeds of said checks despite knowledge that said checks were payable to the Collector of Customs, hence, were government funds which cannot be accepted by SBTC for deposit pursuant to a Central Bank prohibition.

In holding petitioner civilly liable, the Court of Appeals found the following facts: (a) petitioner initiated the opening of the Robert Santos account; and (b) Robert Santos is a fictitious or inexistent person, implying "that petitioner and Robert Santos are one and the same person. The Court of Appeals based its finding on the testimony of petitioner himself on cross-examination, stating that he did not bother to find out if Robert Santos actually exists, and that he failed to get in touch with Robert Santos at his given address despite attempts to do so.8 It also relied on the testimony of Teresita Hulinganga, the New Accounts clerk who assisted in the opening the subject account, to the effect that she never saw Robert Santos in person. Sergio Matutina corroborated Hulinganga's testimony by saying that he tried to verify the existence of Robert Santos by going to the given address only to be informed that there was no Robert Santos residing therein.9

Plainly, the above ratiocination is non sequitur. One cannot logically infer from petitioner's failure to get in touch with Robert Santos that the latter is a fictitious or inexistent person. Teresita Hulinganga's and Sergio Matutina's testimonies that they have never seen nor talked to Robert Santos or possess any knowledge about his existence do not prove that he does not exist. Their testimonies only tend to prove that they have neither seen nor talked to nor knew of the existence of Robert Santos and nothing else. From these, the most that can be inferred is that they have not met Robert Santos. On the other hand, it appears from SBTC's investigation report that Robert Santos exists. As testified to by Ester Mendoza, Manager of SBTC's Auditing Department:

"COURT:

Q: - And according to the records, who approves the opening of the account?

A: - Usually the officer who interview the walk-in client.

Q: - Per the documents who approve the opening of the account?

A: - Your Honor, again it is not indicated in the records who approves the opening of the account.

Q: - Records don't show.

A: - Yes, your Honor.

Q: - But . . . on the day of the opening of the account, who was the highest officer of the branch in the office?

WITNESS:

At the time of the opening your Honor?

COURT:

Yes.

WITNESS:

I don't exactly recall now if the Branch Manager Nora Isidro was present in the opening, but I can recall that Mr. Dick Go admitted to me that he talked to this Robert Santos.

COURT:

Does that appear in your report that he admitted to you?

WITNESS:

Can I look into my report, your Honor?

COURT:

Yes, please.

WITNESS:

(Witness examining her report)

A: - Yes, your Honor.

COURT:

Q: - What did you say there?

A: - That Mr. Robert Santos was indorsed to the New Accounts clerk.

xxx - xxx - xxx

Although the lower court did not directly state that Robert Santos exists, neither did it state that he does not exist. Instead, it found that:

Similarly, the testimony of Teresita Zosimo Hulinganga, whose, bare verbal statements and claims that it was Dick Go who opened or caused to be opened the Robert Santos account with SBTC Congressional Branch, is belied by the documents she identified in the course of her testimony which, in addition to her admission that she was the one who had custody of and who issues to bank clients the signature cards, application forms and control cards necessary for the opening of new accounts of bank depositors, clearly show on their faces that: (1) she was the one who filled up the account number found on the signature card (Exh. "M") before the same was forwarded to Dick Go for approval; (2) she was the one who affixed the control number on the application form; (3) she was the one who filled up the index or control card and her signature appears below the printed words in said card which reads: "Sold by", "Check Serial Number" and "Manner of Payment" (Exh. "N"); (4) she was the one who issued the bank checkbook to Robert Santos (Exh. "N"); and (5) she was the one who prepared and filled up the deposit slip for the initial cash deposit of P500.00 on the Robert Santos account (Exh. "O").10

In finding that petitioner caused the opening of Current Account No. 2110-0282-47 in the. name of Robert Santos, the Court of Appeals likewise relied on the testimony of Teresita Hulinganga and commented on the lower court's finding, thus:

The involvement of Dick Go in the Robert Santos account could be traced from the time it was opened. Teresita Hulinganga, the new accounts clerk who assisted defendant-appellant in opening the account, and who we do not find to be actuated by any motive to testify against her superior, save to relate the incidents as she knew them, testified that it was her superior, Dick Go, who secured the application form and signature card a day or two before the account was opened (TSN, February 8, 1984, pp. 10, 29), returned them already filled up (Id., pp. 29-30), gave the initial deposit and obtained the checkbook from her. She disclaimed ever seeing Robert Santos (TSN, December 16, 1983, pp. 9-15). The trial court expressed misgivings about her testimony since she filled in most of the entries in the application documents (Rollo, p. 79; Decision, p. 7) But the entries she made like the account and control numbers, who "sold" the checkbook, the manner of payment, and the like, are normally the entries a new accounts clerk would fill in for new accounts, as in the account then being opened by Dick Go for a certain Robert Santos. In fact, filling up the deposit slip for initial deposits, according to defendant-appellant himself, is usually the new accounts clerk's job (TSN, November 27, 1985, p. 15). If Teresita Hulinganga still performed her tasks without having seen the applicant, this could be attributed to the fact that Dick Go followed up on the application and as a superior officer, exercised professional ascendancy over this clerk who had the right to assume defendant-appellant Dick Go knew what he was doing.11

We do not agree with the above findings of the Court of Appeals. As correctly observed by the trial court, the alleged non-existence of Robert Santos and the participation of petitioner in the opening of the Robert Santos account were based on the "bare verbal statements" of Hulinganga and Matutina. On the other hand, petitioner's oral testimony, that he met Robert Santos in person and that it was Hulinganga who opened the Robert Santos account, is corroborated by documentary evidence which were identified and admitted by Hulinganga herself. In the weighing of evidence, documentary evidence prevails over testimonial evidence.12

As to SBTC's allegation that petitioner caused to be deposited the PNB Manager's Check in the Robert Santos account, the Court of Appeals found that:

Defendant-appellant Dick Go's involvement in the Robert Santos account was highly unusual and unexplainable. It was defendant-appellant Dick Go who supposedly interviewed the alleged Robert Santos when he opened the account and affixed his signature as approving officer in the signature card (Exh. M-1). Again, by his own admission, he had opportunities to refer to the account whenever there are deposits and encashments in relation to it (TSN, January 29, 1986, p. 11). When the second check, Manager's Check No. J81-006142 (Exh. A) for P1,511,293 was deposited in the Robert Santos account in SBTC's Congressional Branch, defendant-appellant Dick Go was the one who approved the clearing statement (Exh. U-1-a). Defendant-appellant Dick Go was the one who conveniently received the telephone call from the supposed Robert Santos who allegedly expressed his desire to transfer his account. (CA No. 2110-0282-47) from the Congressional Branch to the Caloocan City Branch (TSN, November 27, 1985, p. 22). He also facilitated the transfer by calling SBTC's Caloocan City Branch for the transfer (Id., pp. 22-23), caused the preparation of the receipt of transfer (RT) and signed the same (Exh. V). Underscoring all these, defendant-appellant is the sole person who claims that there is such a person as Robert Santos when all convincing and established evidence point to the contrary. Under the circumstances, defendant-appellant Dick Go's disclaimer of his participation in the irregularity involving the two diverted checks is stripped of all credence.13

While admitting his participation in the opening of the Robert Santos account, petitioner nonetheless insists that his acts were limited to: 1) interviewing Robert Santos prior to his opening of a current account; and 2) approving the 'signature card and the application form. His role in the opening of the Robert Santos account were in line with his duties as assistant manager of the accounting department.14 In tact, prosecution witness Hulinganga acknowledged that petitioner had to sign the signature card as approving officer of the branch.15 The participation of petitioner in the processing of Robert Santos account were never questioned by the prosecution as irregular. Hence, the Court of Appeals cannot insinuate that petitioner's acts were "highly unusual and unexplainable". In fact, even the finding of the Court of Appeals that petitioner conveniently received the telephone call from Robert Santos for the transfer of his account from the Congressional Branch is not extraordinarily unusual and unexplainable.

On the other hand, as found by the trial court, "while it may be true that there was irregularity in the acceptance and deposit of the PNB Manager's checks into the account of Robert Santos because they were payable to the Collector of Customs, the fault therefor is traceable to the concerned tellers of the bank who admittedly, negligently, improperly, and in violation of their duties, accepted, the said checks into the account of Robert Santos."15a It is, therefore, the concerned tellers who acted unusually and unexplainably.

Oral testimonies based on documentary evidence validates the trial court's finding that the bank employees involved in the opening of the Robert Santos account were negligent. Prosecution witness Ester Mendoza testified thus:

COURT:

Q: - Let me see. In Congressional Branch, who is in custody of these specimen cards? Who keeps them and to whom are these turned over?

A: - At the end of the day, your honor, these are turned over to the officers for authentication approval and then x x x they are included in the outstanding files and kept in the vault ovenight.

COURT:

Q: - Who is in charge of these files? Who was the person in the bank in charge of these files?

WITNESS:

A: - It is the cashier, your Honor.

COURT:

Q: - Who is the cashier at that time?

A: - At that time, I think, it was Mrs. Satuito, you Honor .

COURT:

All right, continue.

ATTY. RACHO:

(cont. of the cross-exam.)

Q: - Mrs. Mendoza, in your observation found in the last two pages of your audit report, in the observation under item 1.6 last page, it is stated there that the officer-in-charge of New, Accounts, Congressional Branch has not closely monitored review of these accounts; this officer-in-charge of New Accounts is Mrs. Dolores Satuito. Is it not?

WITNESS:

A: - Yes, sir.

xxx - xxx - xxx

COURT:

Q: - In other words, why did you not say in your report that Mr. Dick Go facilitated the withdrawal?

WITNESS:

A: - Because usually in our audit report, your Honor, we don't give conclusions but our actual findings.

COURT:

Q: - You mentioned that Mrs. Satuito did not closely monitor this account. She was negligent.

A: - In a way your Honor, Yes.16

As observed by the trial court:

Significantly, the cashier, Dolores Satuito, who is in-charge of New Accounts was neither investigated, punished or called to the witness stand. The impression gathered by the Court is that a big cover-up was initiated to spare many people in the SBTC, the PNB, the Bureau of Customs, and; perhaps, even some people at the NSC, by the prosecution of minor employees of the bank. If an alert Bureau of Customs personnel had not discovered the non-payment of taxes, the whole scam would not have surfaced. But, having discovered the nefarious act, it is strange that none of the banks (PNB and SBTC) sought an investigation on how the two checks originally delivered by Edmund Ulibarri of NSC to a certain Claro Cases of the LMC Brokerage firm ended up with the Security Bank. No attempt was made to ask the National Bureau of Investigation to conduct an investigation of the Bureau of Customs Personnel on how the steel plates were released. In fact, as earlier mentioned, the original receipts used in the release of the imported goods were never produced in evidence.17

As to SBTC's allegation that petitioner siphoned and appropriated the proceeds of said checks, the Court of Appeals found that it was Dick Go who received the checkbook of Robert Santos. In view of said finding, the Court of Appeals modified the lower court's finding that it is not clear under what circumstances the Caloocan City Branch account was opened and the proceeds of said account appropriated.

Petitioner disputes the findings made by the Court of Appeals that the checkbook of the Robert Santos account opened at SBTC Caloocan City was delivered by Eduardo Lauchenco "to defendant-appellee Dick Go". According to petitioner, "the basis of said finding is a hearsay testimony because the witness merely testified on the basis of what was related to her by the person who allegedly gave the checkbook, but the person who allegedly gave the checkbook himself did not testify to said effect at all." He added that "aside from the aforesaid 'corrected' finding, petitioner is not adversely affected at all by the rest of the 'corrected' findings."

Petitioner's contention is meritorious. The term "hearsay" as used in the rules of evidence signifies all evidence which is not founded upon the personal knowledge of the witness from whom it is elicited and which consequently does not depend for its credibility and weight upon the confidence which the court may have in him. Briefly, hearsay evidence is information relayed from another person to the witness before it reaches the court.18

From the testimony of prosecution witnesses Lourdes Gabriel and Ester Mendoza, it appears that both of them do not have first-hand knowledge that the checkbook was indeed delivered by Eduardo Lauchengco to Dick Go, and that it was received by Dick Go himself. Lourdes Gabriel testified only as to what Eduardo Lauchengco told her, that is, that Dick Go would be the one to sign the checkbook.19 As to Ester Mendoza, she testified that Eduardo Lauchengco told her that he left the checkbook on top of Dick Go's table.20 Hence, their testimonies on that point were clearly hearsay.

WHEREFORE, the petition for review is GRANTED. The decision of the Court of Appeals in CA-G.R. CY No. 15268 is REVERSED and SET ASIDE, and the judgment of the Regional Trial Court of Quezon City, Branch 88, in Civil Case No. Q-35744, dismissing the civil action filed by respondent SBTC against petitioner Dick Go and his co-defendants as well as the counterclaim, and ordering SBTC to return and/or release to petitioner Dick Go all funds in its control under the account of said Dick Go including accrued earnings, and lifting and setting aside all attachments and/or garnishments issued by reason of the said action against petitioner Dick Go, is REINSTATED.

SO ORDERED.

Davide, Jr., Puno, Kapunan, and Pardo, JJ., concur.



Endnotes:

* On official leave.

** Acting Working Chairman.

1 Penned by Associate Justice Eduardo G. Montenegro and concurred in by Associate Justices Justo P. Torres Jr. and Pacita Canizares-Nye.

2 Penned by Judge Tirso D' C. Velasco.

3 Rollo, pp. 102-103.

4 Rollo, pp. 103-104.

5 Rollo. p. 36.

6 258 SCRA 651, [1996].

7 20 Am. Jur. 1100-1101 as cited in VII Francisco, The Revised Rules of Court, Part II, 1997 ed.

8 TSN, January 29, 1986, p. 12.

9 TSN, March 15, 1985, pp. 6-7.

10 Rollo, p. 62.

11 Rollo, pp. 111-112.

12 GSIS v. CA, 222 SCRA 685, 696 (1993).

13 Rollo, pp. 114-115.

14 TSN, November 27, 1985, pp. 5-16.

15 TSN, December 16, 1983, p. 14.

15a Rollo, pp. 62-63.

16 TSN, April 23, 1984, pp. 19-24.

17 Rollo, p. 61.

18 Francisco, Basic Evidence, Second Edition, 1999, p. 211.

19 TSN, November 16, 1984, p. 15.

20 TSN, April 23, 1984, p. 17.




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