Supreme Court of the Philippines

549 Phil. 207

THIRD DIVISION
G.R. NO. 170491, April 03, 2007
NATIONAL POWER CORPORATION, PETITIONER, VS. HON.
RAMON G. CODILLA, JR., PRESIDING JUDGE, RTC OF CEBU,
BR. 19, BANGPAI SHIPPING COMPANY, AND WALLEM
SHIPPING, INCORPORATED, RESPONDENTS.

DECISION

CHICO-NAZARIO, J.:

Before Us is a Petition for Review on Certiorari under Rule

45 of the Rules of Civil Procedure, assailing the Decision [1] of
the Court of Appeals in CA-G.R. CEB-SP No. 00848, dated 9
November 2005, which dismissed the Petition for Certiorari
filed by the National Power Corporation seeking to set aside
the Order[2] issued by the Regional Trial Court (RTC) of
Cebu, Branch 19 dated 16 November 2004, denying
admission and excluding from the records plaintiff's (herein
petitioner) Exhibits "A", "C", "D", "E", "H" and its sub-
markings, "I", "J", and its sub-markings, "K", "L", "M" and its
sub-markings, "N" and its sub-markings, "O", "P" and its sub-
markings, "Q" and its sub-markings, "R" and "S" and its sub-
markings.

On 20 April 1996, M/V Dibena Win, a vessel of foreign

registry owned and operated by private respondent Bangpai
Shipping, Co., allegedly bumped and damaged petitioner's
Power Barge 209 which was then moored at the Cebu
International Port. Thus, on 26 April 1996, petitioner filed
before the Cebu RTC a complaint for damages against
private respondent Bangpai Shipping Co., for the alleged
damages caused on petitioner's power barges.

Thereafter, petitioner filed an Amended Complaint dated 8

July 1996 impleading herein private respondent Wallem
Shipping, Inc., as additional defendant, contending that the
latter is a ship agent of Bangpai Shipping Co. On 18
September 1996, Wallem Shipping, Inc. filed a Motion to
Dismiss which was subsequently denied by public
respondent Judge in an Order dated 20 October 1998.
Bangpai Shipping Co. likewise filed a Motion to Dismiss
which was also denied by public respondent Judge in an
Order issued on 24 January 2003.

Petitioner, after adducing evidence during the trial of the

case, filed a formal offer of evidence before the lower court
on 2 February 2004 consisting of Exhibits "A" to "V" together
with the sub-marked portions thereof. Consequently, private
respondents Bangpai Shipping Co. and Wallem Shipping,
Inc. filed their respective objections to petitioner's formal
offer of evidence.

On 16 November 2004, public respondent judge issued the

assailed order denying the admission and excluding from the
records petitioner's Exhibits "A", "C", "D", "E", "H" and its
sub-markings, "I", "J" and its sub-markings, "K", "L", "M" and
its sub-markings, "N" and its sub-markings, "O", "P" and its
sub-markings, "Q" and its sub-markings, "R" and "S" and its
sub-markings. According to the court a quo:
The Court finds merit in the objections raised and the motion
to strike out filed respectively by the defendants. The record
shows that the plaintiff has been given every opportunity to
present the originals of the Xerox or photocopies of the
documents it offered. It never produced the originals. The
plaintiff attempted to justify the admission of the
photocopies by contending that "the photocopies offered are
equivalent to the original of the document" on the basis of
the Electronic Evidence (Comment to Defendant Wallem
Philippines" Objections and Motion to Strike). But as rightly
pointed out in defendant Wallem's Reply to the Comment of
Plaintiff, the Xerox copies do not constitute the electronic
evidence defined in Section 1 of Rule 2 of the Rules on
Electronic Evidence as follows:
"(h) "Electronic document" refers to information or the
representation of information, data, figures, symbols or
other models of written expression, described or however
represented, by which a right is established or an obligation
extinguished, or by which a fact may be proved and affirmed,
which is received, recorded, transmitted, stored, processed,
retrieved or produced electronically. It includes digitally
signed documents and any printout, readable by sight or
other means which accurately reflects the electronic data
message or electronic document. For the purpose of these
Rules, the term "electronic document" may be used
interchangeably with "electronic data message".
The information in those Xerox or photocopies was not
received, recorded, retrieved or produced electronically.
Moreover, such electronic evidence must be authenticated
(Sections 1 and 2, Rule 5, Rules on Electronic Evidence),
which the plaintiff failed to do. Finally, the required Affidavit
to prove the admissibility and evidentiary weight of the
alleged electronic evidence (Sec. 1, Rule 9, Ibid) was not
executed, much less presented in evidence.

The Xerox or photocopies offered should, therefore, be

stricken off the record. Aside from their being not properly
identified by any competent witness, the loss of the
principals thereof was not established by any competent
proof.

xxxx
WHEREFORE, plaintiff's Exhibits "A", "C", "D", "E", "H" and
its sub-markings, "I", "J", and its sub-markings, "K", "L", "M"
and its sub-markings, "N" and its sub-markings, "O", "P" and
its sub-markings, "Q" and its sub-markings, and "R" are
hereby DENIED admission and excluded from the records.
However, these excluded evidence should be attached to the
records of this case to enable the appellate court to pass
upon them should an appeal be taken from the decision on
the merits to be rendered upon the termination of the trial of
this case.

Exhibits "S" and its sub-markings are also DENIED

admission for lack of proper identification since the witness
who brought these pictures expressly admitted that he was
not present when the photos were taken and had not
knowledge when the same where taken.[3]
Upon denial of petitioner's Motion for Reconsideration in an
Order dated 20 April 2005, petitioner filed a Petition for
Certiorari under Rule 65 of the Rules of Civil Procedure
before the Court of Appeals maintaining that public
respondent Judge acted with grave abuse of discretion
amounting to lack or excess of jurisdiction in denying the
admission of its Exhibits "A", "C", "D", "E", "H" and its sub-
markings, "I", "J" and its sub-markings, "K", "L", "M" and its
sub-markings, "N" and its sub-markings, "O", "P" and its sub-
markings, "Q" and its sub-markings, "R", and "S" and its sub-
markings.

On 9 November 2005, the appellate court issued a Decision

dismissing petitioner's petition for certiorari, the pertinent
portions of which elucidate:
After a judicious scrutiny of the record of the case on hand,
together with the rules and jurisprudence which are
applicable in the premises, we have come up with a finding
that the petition for certiorari filed in this case is not
meritorious.
It appears that there is no sufficient showing by the
petitioner that the respondent judge acted with grave abuse
of discretion in issuing the assailed orders in Civil Case No.
CEB-18662. As what our jurisprudence tells us, grave abuse
of discretion is meant such capricious and whimsical
exercise of judgment as would be equivalent to lack of
jurisdiction x x x.

In the case at bench, what has been shown to the contrary

by the totality of the record on hand is that the respondent
judge acted correctly and within the pale of his sound
discretion in issuing the assailed order, dated November 16,
2004, in Civil Case No. CEB-18662.

Indeed, it appears that the pieces of petitioner's

documentary evidence which were denied admission by the
respondent judge were not properly identified by any
competent witness. As pointed out by the respondent
Bangpai Shipping Company in its comment on the petition
filed in this case which reproduces some excerpts of the
testimonies in the court a quo of Atty. Marianito De Los
Santos, Engr. Nestor Enriquez, Jr. and Mr. Rodulfo I.
Pagaling, the said witnesses did not have personal
knowledge of and participation in the preparation and
making of the pieces of documentary evidence denied
admission by respondent judge x x x. In other words, there
was lack of proper identification of said pieces of
documentary evidence. x x x.

Then another ground for denying admission of petitioner's

Exhibits A, C, D, E, H, I, J, K, L, M, N, O, P, Q, R, and S by
the respondent judge is that said pieces of documentary
evidence were merely photocopies of purported documents
or papers. There is no gainsaying the fact that the
respondent judge acted within the pale of his discretion
when he denied admission of said documentary evidence.
Section 3 of Rule 130 of the Rules of Court of the Philippines
is very explicit in providing that, when the subject of inquiry
are the contents of documents, no evidence shall be
admissible other than the original documents themselves,
except in certain cases specifically so enumerated therein,
and the petitioner has not shown that the non-presentation
or non-production of its original documentary pieces of
evidence falls under such exceptions. As aptly pointed out by
the respondent judge in the order issued by him on
November 16, 2004:
"x x x The record shows that the plaintiff (petitioner herein)
has been given every opportunity to present the originals of
the Xerox or photocopies of the documents it offered. It
never produced said originals."
So, the petitioner has only itself to blame for the respondent
judge's denial of admission of its aforementioned
documentary evidence.

Of course, the petitioner tries to contend that the

photocopies of documents offered by it are equivalent to the
original documents that it sought to offer in evidence, based
on the Rules on Electronic Evidence which were in force and
effect since August 1, 2001. However, such a contention is
devoid of merit. The pieces of documentary evidence offered
by the petitioner in Civil Case CEB-18662 which were denied
admission by the respondent judge do not actually constitute
as electronic evidence as defined in the Rules on Electronic
Evidence. The informations therein were not received,
retrieved or produced electronically. The petitioner has not
adequately established that its documentary evidence were
electronic evidence. it has not properly authenticated such
evidence as electronic documents, assuming arguendo that
they are. Lastly, the petitioner has not properly established
by affidavit pursuant to Rule 9 of the Rules on Electronic
Evidence the admissibility and evidentiary weight of said
documentary evidence.
Thus, by any legal yardstick, it is manifest that the
respondent judge did not commit grave abuse of discretion
in denying admission of the aforementioned documentary
evidence of petitioner.

But even if it be granted just for the sake of argument that

the respondent judge committed an error in denying the
aforementioned documentary evidence of the petitioner, still
the petition for certiorari filed in this case must fail. Such
error would at most be only an error of law and not an error
of jurisdiction. In Lee vs. People, 393 SCRA 397, the
Supreme Court of the Philippines said that certiorari will not
lie in case of an error of law. x x x.

WHEREFORE, in view of the foregoing premises, judgment

is hereby rendered by us DISMISSING the petition filed in
this case and AFFIRMING the assailed orders issued by
respondent judge in Civil Case No. CEB-18662. [4]
Aggrieved by the aforequoted decision, petitioner filed the
instant petition.

The focal point of this entire controversy is petitioner's

obstinate contention that the photocopies it offered as
formal evidence before the trial court are the functional
equivalent of their original based on its inimitable
interpretation of the Rules on Electronic Evidence.

Petitioner insists that, contrary to the rulings of both the

trial court and the appellate court, the photocopies it
presented as documentary evidence actually constitute
electronic evidence based on its own premise that an
"electronic document" as defined under Section 1(h), Rule 2
of the Rules on Electronic Evidence is not limited to
information that is received, recorded, retrieved or produced
electronically. Rather, petitioner maintains that an
"electronic document" can also refer to other modes of
written expression that is produced electronically, such as
photocopies, as included in the section's catch-all proviso:
"any print-out or output, readable by sight or other means".

We do not agree.

In order to shed light to the issue of whether or not the

photocopies are indeed electronic documents as
contemplated in Republic Act No. 8792 or the Implementing
Rules and Regulations of the Electronic Commerce Act, as
well as the Rules on Electronic Evidence, we shall
enumerate the following documents offered as evidence by
the petitioner, to wit:

1. Exhibit "A" is a photocopy of a letter manually

signed by a certain Jose C. Troyo, with
"RECEIVED" stamped thereon, together with a
handwritten date;

2. Exhibit "C" is a photocopy of a list of estimated

cost of damages of petitioner's power barges 207
and 209 prepared by Hopewell Mobile Power
Systems Corporation and manually signed by
Messrs. Rex Malaluan and Virgilio Asprer;

3. Exhibit "D" is a photocopy of a letter manually

signed by a certain Nestor G. Enriquez, Jr., with
"RECEIVED" stamped thereon, together with a
handwritten notation of the date it was received;

4. Exhibit "E" is a photocopy of a Standard Marine

Protest Form which was filled up and accomplished
by Rex Joel C. Malaluan in his own handwriting
and signed by him. Portions of the Jurat were
handwritten, and manually signed by the Notary
Public;
5. Exhibit "H" is a photocopy of a letter manually
signed by Mr. Nestor G. Enriquez, Jr. with
"RECEIVED" stamped thereon, together with a
handwritten notation of the date it was received;

6. Exhibit "I" is a photocopy of a computation of the

estimated energy loss allegedly suffered by
petitioner which was manually signed by Mr.
Nestor G. Enriquez, Jr.;

7. Exhibit "J" is a photocopy of a letter containing the

breakdown of the cost estimate, manually signed
by Mr. Nestor G. Enriquez, Jr., with "RECEIVED"
stamped thereon, together with a handwritten
notation of the date it was received, and other
handwritten notations;

8. Exhibit "K" is a photocopy of the Subpoena Duces

Tecum Ad Testificandum written using a manual
typewriter, signed manually by Atty. Ofelia Polo-De
Los Reyes, with a handwritten notation when it
was received by the party;

9. Exhibit "L" is a photocopy of a portion of the

electricity supply and operation and maintenance
agreement between petitioner and Hopewell,
containing handwritten notations and every page
containing three unidentified manually placed
signatures;

10. Exhibit "M" is a photocopy of the Notice of

Termination with attachments addressed to Rex
Joel C. Malaluan, manually signed by Jaime S.
Patinio, with a handwritten notation of the date it
was received. The sub-markings also contain
manual signatures and/or handwritten notations;
 11. Exhibit "N" is a photocopy of a letter of
termination with attachments addressed to VIrgilio
Asprer and manually signed by Jaime S. Patino.
The sub-markings contain manual signatures
and/or handwritten notations;

12. Exhibit "O" is the same photocopied document

marked as Annex C;

13. Exhibit "P" is a photocopy of an incident report

manually signed by Messrs. Malaluan and Bautista
and by the Notary Public, with other handwritten
notations;

14. Exhibit "Q" is a photocopy of a letter manually

signed by Virgilio Asprer and by a Notary Public,
together with other handwritten notations.

On the other hand, an "electronic document" refers to

information or the representation of information, data,
figures, symbols or other models of written expression,
described or however represented, by which a right is
established or an obligation extinguished, or by which a fact
may be proved and affirmed, which is received, recorded,
transmitted, stored, processed, retrieved or produced
electronically.[5] It includes digitally signed documents and
any printout, readable by sight or other means which
accurately reflects the electronic data message or electronic
document.[6]

The rules use the word "information" to define an electronic

document received, recorded, transmitted, stored,
processed, retrieved or produced electronically. This would
suggest that an electronic document is relevant only in
terms of the information contained therein, similar to any
other document which is presented in evidence as proof of
its contents.[7] However, what differentiates an electronic
document from a paper-based document is the manner by
which the information is processed; clearly, the information
contained in an electronic document is received, recorded,
transmitted, stored, processed, retrieved or produced
electronically.

A perusal of the information contained in the photocopies

submitted by petitioner will reveal that not all of the
contents therein, such as the signatures of the persons who
purportedly signed the documents, may be recorded or
produced electronically. By no stretch of the imagination can
a person's signature affixed manually be considered as
information electronically received, recorded, transmitted,
stored, processed, retrieved or produced. Hence, the
argument of petitioner that since these paper printouts were
produced through an electronic process, then these
photocopies are electronic documents as defined in the
Rules on Electronic Evidence is obviously an erroneous, if
not preposterous, interpretation of the law. Having thus
declared that the offered photocopies are not tantamount to
electronic documents, it is consequential that the same may
not be considered as the functional equivalent of their
original as decreed in the law.

Furthermore, no error can be ascribed to the court a quo in

denying admission and excluding from the records
petitioner's Exhibits "A", "C", "D", "E", "H" and its sub-
markings, "I", "J" and its sub-markings, "K", "L", "M" and its
sub-markings, "N" and its sub-markings, "O", "P" and its sub-
markings, "Q" and its sub-markings, and "R". The trial court
was correct in rejecting these photocopies as they violate
the best evidence rule and are therefore of no probative
value being incompetent pieces of evidence. Before the
onset of liberal rules of discovery, and modern technique of
electronic copying, the best evidence rule was designed to
guard against incomplete or fraudulent proof and the
introduction of altered copies and the withholding of the
originals.[8] But the modern justification for the rule has
expanded from the prevention of fraud to a recognition that
writings occupy a central position in the law. [9] The
importance of the precise terms of writings in the world of
legal relations, the fallibility of the human memory as
reliable evidence of the terms, and the hazards of inaccurate
or incomplete duplicate are the concerns addressed by the
best evidence rule.[10]

Moreover, as mandated under Section 2, Rule 130 of the

Rules of Court:
"SECTION 2. Original writing must be produced; exceptions.
— There can be no evidence of a writing the contents of
which is the subject of inquiry, other than the original
writing itself, except in the following cases:

(a) When the original has been lost, destroyed, or cannot be

produced in court;
(b) When the original is in the possession of the party
against whom the evidence is offered, and the latter fails to
produce it after reasonable notice;
(c) When the original is a record or other document in the
custody of a public officer;
(d) When the original has been recorded in an existing
record a certified copy of which is made evidence by law;
(e) When the original consists of numerous accounts or other
documents which cannot be examined in court without great
loss of time and the fact sought to be established from them
is only the general result of the whole."
When the original document has been lost or destroyed, or
cannot be produced in court, the offeror, upon proof of its
execution or existence and the cause of its unavailability
without bad faith on his part, may prove its contents by a
copy, or by a recital of its contents in some authentic
document, or by the testimony of witnesses in the order
stated.[11] The offeror of secondary evidence is burdened to
prove the predicates thereof: (a) the loss or destruction of
the original without bad faith on the part of the
proponent/offeror which can be shown by circumstantial
evidence of routine practices of destruction of documents; [12]
(b) the proponent must prove by a fair preponderance of
evidence as to raise a reasonable inference of the loss or
destruction of the original copy; and (c) it must be shown
that a diligent and bona fide but unsuccessful search has
been made for the document in the proper place or places. [13]
However, in the case at bar, though petitioner insisted in
offering the photocopies as documentary evidence, it failed
to establish that such offer was made in accordance with the
exceptions as enumerated under the abovequoted rule.
Accordingly, we find no error in the Order of the court a quo
denying admissibility of the photocopies offered by
petitioner as documentary evidence.

Finally, it perplexes this Court why petitioner continued to

obdurately disregard the opportunities given by the trial
court for it to present the originals of the photocopies it
presented yet comes before us now praying that it be
allowed to present the originals of the exhibits that were
denied admission or in case the same are lost, to lay the
predicate for the admission of secondary evidence. Had
petitioner presented the originals of the documents to the
court instead of the photocopies it obstinately offered as
evidence, or at the very least laid the predicate for the
admission of said photocopies, this controversy would not
have unnecessarily been brought before the appellate court
and finally to this Court for adjudication. Had it not been for
petitioner's intransigence, the merits of petitioner's
complaint for damages would have been decided upon by the
trial court long ago. As aptly articulated by the Court of
Appeals, petitioner has only itself to blame for the
respondent judge's denial of admission of its aforementioned
documentary evidence and consequently, the denial of its
prayer to be given another opportunity to present the
originals of the documents that were denied admission nor
to lay the predicate for the admission of secondary evidence
in case the same has been lost.

WHEREFORE, premises considered, the instant petition is

hereby DENIED. The Decision of the Court of Appeals in CA-
G.R. CEB-SP No. 00848, dated 9 November 2005 is hereby
AFFIRMED. Costs against petitioner.

SO ORDERED.

Ynares-Santiago, (Chairperson), Austria-Martinez, and

Callejo, Sr., JJ., concur.
Nachura, J., no part.

Penned by Associate Justice Isaias P. Dicdican with

[1]

Associate Justices Ramon M. Bato, Jr. and Apolinario D.

Bruselas, Jr., concurring; rollo, pp. 40-49.

Civil Case No. CEB-18662, penned by Judge Ramon. G.

[2]

Codilla, Jr.; id. at 153-160.

[3]
RTC Order, pp. 5-6; id. at 54-55.
[4]
CA Decision, pp. 6-9; id. at 45-48.

RULES ON ELECTRONIC EVIDENCE, Rule 2, Sec. 1, par.

[5]

(h).
[6]
Id.
[7]
REVISED RULES ON EVIDENCE, Rule 130, Sec. 2.

Lee v. People of the Philippines, G.R. No. 159288, 19

[8]

October 2004, 440 SCRA 662, 683.

[9]
Id.

Id. citing Seller v. Lucas Films Ltd., 808 F. 2d 1316

[10]

(1989).
[11]
Id. citing RULES OF COURT, Rule 130, Sec. 5.

Id. citing United States v. Balzano, 687 Fed. 6; Wright v.

[12]

Farmers Co-op, 681 F. 2d. 549.

[13]
Id. citing 32 Corpus Juris Secundum, id. at 773.

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