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336 Phil. 177


[ G.R. No. 84449, March 04, 1997 ]




On September 12, 1986, accused-appellants Angelito (Manolito) Javier, Redencio (Esteban) Javier, and Domingo Javier, along with their father Benedicto Javier and their brother-in-law Edwin de Peralta, were charged with the murder of one Elmer Publico before the RTC of Aparri, Cagayan, in an information[1] which reads:

“That on or about August 3, 1986, in the municipality of Buguey, province of Cagayan, and within the jurisdiction of this Honorable Court, the said accused Benedicto (Benito) Javier, Angelito (Manolito) Javier, Redencio (Esteban) Javier, Domingo Javier, and Edwin de Peralta, armed with pieces of wood, stakes (darecdec) and paddle (lapag), conspiring together and helping one another, with intent to kill, with evident premeditation [sic] and with treachery and with abuse of superior strength [sic], did then and there wilfully, unlawfully and feloniously assault, attack, club and maul one Elmer Publico, inflicting upon him several wounds on the different parts of his body which caused his death.

Contrary to law.”
Benedicto Javier, along with herein accused-appellants Angelito, Redencio, and Domingo Javier, were arrested on August 12, 1986. Edwin de Peralta was not apprehended and until now has remained at large. On October 24, 1986, when the case was calendared for arraignment before Judge Concepcion A. Salud, Benedicto Javier pleaded guilty, but to the lesser crime of homicide. He invoked the mitigating circumstances of voluntary surrender and incomplete self-defense. The accused-appellants, through counsel, opted to defer their arraignment.

The prosecution consented to Benedicto’s plea of guilty to a lesser offense of homicide and expressed no objection to the mitigating circumstances asserted. Thus, Benedicto Javier was accordingly sentenced to suffer the penalty of imprisonment of four (4) months and one (1) day of arresto mayor, as minimum, to four (4) years, two (2) months and one (1) day of prision correccional, as maximum, and to indemnify the heirs of the victim in the sum of P30,000.00.[2]

During the arraignment of Benedicto Javier, accused-appellants’ counsel filed a motion for the re-investigation of the case, alleging that since Benedicto Javier was the sole perpetrator of the crime which led to the death of Elmer Publico, the case against appellants should be dismissed.[3]While the motion for re-investigation was granted by the trial court on December 11, 1986, the prosecution held that a prima facie case for murder against the accused-appellants existed, uncontroverted by the mere affidavit submitted by one of the witnesses for the defense alleging their non-participation in the crime of murder.[4] Upon their arraignment on April 27, 1987, the accused-appellants Redencio Javier, Domingo Javier, and Angelito Javier, pleaded not guilty to the crime charged in the information. Trial ensued, thereafter, this time presided over by Judge Ricardo A. Baculi.

The facts as borne out by the evidence appear to be that the victim, Elmer Publico, was walking with his mother, Candida, on the National Road at Minanga Este, Buguey, Cagayan. They were on their way to the house of Elmer’s brother, Juanito. They were having an argument about money as they passed by the house of Benedicto Javier, where the latter, a Barangay Councilman, was in the midst of a drinking spree with his three sons (herein accused-appellants) and his son-in-law Edwin de Peralta. Candida Publico saw and recognized them, they being her barriomates. Without any warning or provocation whatsoever, Benedicto and Angelito Javier, armed with a boat paddle and a stake taken from the fence surrounding Benedicto’s house, approached them and began to club Elmer viciously, hitting Elmer on the head and the upper part of the body. Elmer fell to the ground. At this juncture, Domingo Javier, Redencio Javier and Edwin de Peralta joined Benedicto and Angelito, and clubbed Elmer with wooden stakes. They continued clubbing him even though he was already prostrate on the ground. Candida, taken aback, could only scream and cower in fear, unable to help. Her screams were heard by her son Juanito Publico and companion Eleazar Pintazon, who were at that time inside Juanito’s house, located about 25 meters away from the scene of the crime. Juanito and Eleazar rushed towards the place where they heard Candida’s screams. Juanito Publico, at the scene of the crime, saw Elmer being clubbed. He then shouted at the attackers: “Why is it that you are killing my brother?” Only then did all the assailants leave.

Elmer, still alive, was carried to Juanito’s house, where he was able to regain consciousness. Candida then went to report the attack to Barangay Captain Remedios Taloza. No tricycle was available to bring Elmer to the Centro of Buguey for medical treatment. Only in the morning of the day following was Elmer brought to the clinic of Dr. Fortunato Tacuboy, Jr., the Municipal Health Officer of Buguey. Elmer was confined therein for a day. On August 5, 1986, Elmer Publico died. That same day, Dr. Fortunato Tacuboy, Jr. conducted a post-mortem examination and his findings were:

1. Abrasion with contusion just inferior portion of left nasal opening;

2. Hematoma with contusion, post-auricular right side;

3. Incised wound, 1/2 inch long, superficial located at the distal 3rd of the left arm;

4. Contusion with abrasion, superior portion of the left scapula;

5. Elongated shape contusion, 2/3 inch wide by 10 inches long, located at the inferior portion of the thorax, back portion of the body;

6. Contusion with 1/2 inch lacerated wound, inner portion of the lower lip of the mouth, right side, with the loosening of the root of the lower teeth, the 4th and 5th teeth, right side;

7. Contusion frontal head, left side, one inch diameter;

8. Contusion two inches diameter, at mid-portion of the occipital region of the head;

9. Contusion 1-1/4 inches diameter, lower portion of the right side of the occipital region of the head;

10. Contusion with superficial lacerated wound, 1/3 inch long, located at the inner portion of the lower lip of the mouth left side, with loosening of the root of the 5th and 6th teeth, lower portion left;

11. Contusion, hematoma, with lacrimation of the right eye;

12. Contusion, 1-1/3 inches diameter located at the apex of the head.

CAUSE OF DEATH -- Cerebral concussion secondary or due to sudden strong blow at the head as evidence of multiple contusions of the head, thus jarring or shaking the brain.”[5]
Testifying for the prosecution, Dr. Fortunato Tacuboy, Jr. stated with certainty that the number of injuries sustained by the victim indicates that they were inflicted by more than one, “probably two or more”, persons. He also testified that said injuries were caused by a hard, blunt instrument.[6] Extended cross-examination by the defense availed the defense nothing.

Candida Publico after positively identifying the accused-appellants, declared that appellants took part in the clubbing of her son Elmer Publico. No altercation ensued between Elmer and the accused-appellants prior to the attack. The accused-appellants smelled of liquor when they attacked her son.[7]

Juanito Publico, Elmer’s brother, testified that he recognized the accused-appellants and saw them mauling his brother even as he was running towards them. They left as he came near. He had known all of the accused since birth. They grew up together in the same neighborhood. His brother was not armed with any weapon the night of the incident.[8]

Eleazar Pintazon, another prosecution witness, also positively identified the accused-appellants as the ones who mauled and clubbed Elmer Publico in the night of August 3, 1986. He was with Juanito Publico when he heard Candida Publico screaming: “Help me because they are killing Akong (Elmer Publico)!”. He and Juanito Publico ran together towards the place where they heard the screams. Pintazon, however, did not come nearer than 20 meters; nor did he shout for help, as he was afraid.[9] He corroborated Juanito Publico’s testimony that the accused-appellants left the scene of the crime when they came running.[10]

Carmen Publico, Elmer’s wife, saw her husband’s injuries before he died. Elmer Publico suffered swollen lips, bleeding gums, a swollen left cheek, and contusions at his nape, neck, left elbow and at the back of his left shoulder. The expenses incurred for the medical treatment of the deceased amounted to P1,600.00; expenses for the wake amounted to P2,500.00; and P1,850 was spent for other expenses.[11]

When called to the witness stand by the defense, Benedicto Javier denied that his sons and son-in-law were with him when Elmer Publico was clubbed. He insists that he alone inflicted the injuries that caused the victim’s death. He claims that Elmer Publico was drunk and provoking trouble by challenging everybody to come out and fight him. He being a barangay councilman, he tried to pacify the victim, telling him to go home. Apparently the victim resented his admonition. Because of such resentment, the victim unsheathed the knife he was carrying and tried to stab him with it. He alone clubbed Elmer Publico in self-defense. There was no intent to kill on his part, although he may have used excessive force due to obfuscation. At the time he clubbed Elmer, defense witness Elizabeth Villalon, who testified that Elmer Publico was alone at the time of the incident, was only six meters away from him. On cross-examination, he declared that, when Elmer fell to the ground, he was unable to recover the victim’s knife because Edwin de Peralta pulled him and took him away. He stated that he knows of no reason why Candida Publico testified against his sons.[12]

Redencio Javier denied having clubbed Elmer Publico and interposed the alibi that at around six in the evening of August 3, 1986, he went alone fishing in the sea until five in the morning of August 4, 1986. He denied knowing the whereabouts of his father, his brothers and his brother-in-law. He admitted that he did not bring any food with him while fishing because the area where he fished was very near his house. The only person who corroborated his alibi was his wife. He also admitted that his house was only fifteen meters away from his father’s house. He was unable to give any reason why Candida Publico, Juanito Publico, and Eleazar Pintazon would testify against him and his brothers.[13]

Domingo Javier also submitted the alibi that he was inside his house sick with influenza at the time the incident took place, and that he did not know the whereabouts then of his father, brothers, and brother-in-law. He denied clubbing Elmer Publico and corroborated Juanito Publico’s testimony that they, including the victim, were all barriomates who grew up together. He also stated that he knows of no reason why Eleazar Pintazon testified against him, as the latter is his friend and they never had any quarrel between themselves.[14]

Angelito Javier likewise denied having clubbed Elmer Publico, claiming that he was at home with his two year old daughter the whole time. He, however, admitted that his house is only thirty (30) meters away from his father’s. He likewise could not give any reason why the prosecution witnesses would accuse him and his brothers of being liable for the death of the victim.[15]

On June 10, 1988, the trial court found the accused-appellants guilty beyond reasonable doubt of the crime of murder and held that there was a conspiracy among accused-appellants to commit the same. The dispositive portion of the judgment reads:[16]

“WHEREFORE, the Court finds the accused Angelito (Manolito) Javier, Redencio (Esteban) Javier and Domingo Javier guilty beyond reasonable doubt as principals by direct participation of the crime of Murder qualified by treachery, defined and penalized by Art. 248 of the Revised Penal Code and are each sentenced to suffer the penalty of reclusion perpetua, with all the accessories provided for by law, to pay, jointly and severally to the heirs of Elmer Publico, a) the sum of P30,000.00 as indemnity; b) the sum of P5,950.00 as funeral and other incidental expenses; and c) to pay proportionately the costs.

As the accused Edwin de Peralta is still at-large, the case against him is hereby archived without prejudice to its reinstatement when warranted.

Accused Angelito Javier, Redencio Javier and Domingo Javier being under preventive suspension shall be credited full time in the service of their sentence, if they agreed [sic] in writing to the disciplinary rules imposed upon convicted prisoners, or to four-fifths if otherwise.

Aggrieved by the decision of the court a quo, accused-appellants filed the herein appeal, with the following assignment of errors:




We are not persuaded by the arguments of the accused-appellants.

The accused-appellants contend that it was error for the trial court to have rejected the testimony of Benedicto Javier, who claimed that he was the lone culprit, considering that the said testimony had already been admitted and accepted upon his conviction. This contention is bereft of merit. It must be noted that it was the accused-appellants themselves who sought the re-investigation of the case. Upon re-investigation the prosecution prima facie made the finding against the accused-appellants for the crime of murder. As such, the court a quo could not be bound by the admissions of Benedicto Javier regarding his sole authorship of the crime.

Verily, the finding of a prima facie case in the reinvestigation demonstrates that the Prosecuting Fiscal was not convinced of the accused-appellants’ disavowal of any involvement. The outcome of the trial showed that the trial court was unconvinced as well. Benedicto’s testimony was open to refutation by the prosecution. As aptly stated by the Office of Solicitor General in its brief:
“The fact that Benedicto pleaded guilty does not necessarily mean that his narration of the incident on the witness stand is the truth and therefore entitled to full credence. His testimony would therefore still be open to the test of credibility, just like any other witness.”[17]
In denying their culpability, all of the accused-appellants rely on alibi as their defense. Redencio claims he was out fishing; Domingo contends he was at home sick of influenza; and Angelito insists that he was at home with his two-year-old daughter the whole time. These defenses are flimsy, to say the least, considering that: (a) Redencio admitted that his fishing boat was located only two minutes away from the shoreline, the distance between the shoreline and Benedicto’s house being only 30 meters; (b) Benedicto’s house, where Domingo was resting due to his sickness, was only four meters away from the scene of the attack; moreover, as noted by the court a quo, influenza is a sickness not sufficiently debilitating to such an extent as would have prevented him from participating in the attack;[18] and (c) Angelito’s house is located only 30 meters away from Benedicto’s.

Time and again this Court has held that for alibi to prosper it is not enough to prove that appellants were somewhere else when the offense was committed, but it must likewise be demonstrated that they were so far away that they could not have been physically present at the place of the crime or its immediate vicinity at the time of its commission.[19] Their alleged whereabouts at the time of the incident were not sufficiently shown to be of such distance as to foreclose any possibility for the appellants to be at the crime scene.

Apart from the defense of alibi, the accused-appellants also argue that Candida Publico’s testimony should not be given credence, as she was nowhere near the scene of the attack until Elmer was being helped to his feet by his brother Juanito.[20] Elizabeth Villalon, a witness for the defense, contends that Candida Publico was not with Elmer Publico the night he was clubbed. This contention is belied by Benedicto Javier’s own testimony admitting Candida’s presence during direct examination taken before the sala of Judge Concepcion A. Salud:

Q:    Do you remember if [Elmer Publico] has a companion?
A:    Yes sir.”[21]

Candida Publico’s presence during the time of the clubbing was further confirmed during Benedicto’s re-direct examination before the same judge, where, seeking to bolster his claim that the deceased attacked him first, he claimed that Candida Publico allegedly took Elmer’s knife:

Q: You said in the direct examination that this Elmer Publico had a companion when he was already fell down [sic], what did the companion do?
A:     She was the one who got [the knife], sir.

Q:     Who is that person?
A:     His mother, sir.”[22]

During his sons’ trial, however, he testified that the said knife allegedly used by the deceased Elmer Publico remained with the deceased after the latter was clubbed:

Q: After you clubbed him where was the knife of Elmer Publico?
A:     It was with [sic] his hands, sir.[23]

The contradiction between these testimonies shows that Benedicto Javier earnestly sought to exculpate his sons by claiming to be the lone perpetrator of the crime. As noted by the lower court:
“The narration of Benedicto is vague. The manner of how Elmer wanted to stab him and charged [sic] at him is not clear. It does not describe in precise terms the actual and imminent danger or peril to his life. Imminent danger to his life is not sufficiently shown by Elmer’s wanting to stab him - a mere conclusion. If he indeed back stepped [sic], there could have been no necessity to resort [sic] to picking up a piece of wood to club or maul Elmer with it by inflicting twelve injuries on him. If true, perhaps one or two blows would have been enough to disarm him. The elements of self-defense is [sic] not clearly, sufficiently and convincingly proven. At least the court perceives it merely as an intimidating attitude. At the worst, a figment of imagination which could easily be manufactured, a futile attempt to exculpate his sons from criminal liability.”[24] (emphasis ours)
We find the story as concocted by the accused-appellants, that only Benedicto committed the crime to be too improbable. It is contradicted on material points. In order to discredit Candida Publico’s testimony, the accused-appellants would have us believe that Elmer Publico was alone when the incident took place. Yet Benedicto Javier positively admitted that the victim was with a companion whom he later identified to be Candida Publico.

The trial court committed no error in lending credence to the version of the prosecution as to what had actually transpired that night of August 3, 1986. The court a quo’s finding that the herein accused-appellants also participated in the assault on Elmer Publico is supported by evidence. The testimony of Candida Publico is straightforward and unwavering. It remained unshaken on cross-examination. The fact that she is the mother of the victim is of no moment. As aptly noted by the Solicitor General, the fact that she is the mother of the victim does not disqualify her as biased and interested.[25] On the contrary, it only serves to strengthen her credibility, for it would be foolhardy of her who is interested in seeking redress for her son’s death to accuse somebody other than the real culprits.[26]

The accused-appellants were positively identified by the prosecution witnesses. It has not been shown that the accusation made by the victim’s mother, nor the positive identification made by Juanito Publico and Eleazar Pintazon, were motivated by any ill-will towards any of the accused. Being barriomates who practically grew up together, it is inconceivable that Candida Publico, Juanito Publico, and Eleazar Pintazon would fabricate such a falsehood for no reason at all. In the absence of ill-will, it is hardly credible that a witness would prevaricate and cause damnation to one who brought no harm or injury.[27] Positive identification where categorical and consistent and without any showing of ill motive on the part of the eyewitness testifying on the matter prevails over alibi and denial which, if not substantiated by clear and convincing evidence, are negative and self-serving evidence undeserving of weight in law.[28] In addition, Dr. Tacuboy’s finding that two or more people inflicted the injuries on the deceased is unchallenged. Measured against the feeble defenses raised by the accused-appellants, the testimonies of the prosecution witnesses must be accorded greater weight.

There is evidence, shown by the post-mortem examination of the victim’s body, as well as by the testimony of Dr. Tacuboy who conducted such examination, that the injuries inflicted on the victim could not have been made by only one person. Moreover, Juanito Publico testified that the deceased, who at the time of his death was a robust nineteen-year-old, was not only taller, but much bigger in physique than Benedicto Javier, who was already 54 years of age at the time of the incident.[29] It is incredible that Benedicto remained unscathed during their alleged altercation, given his claim that the deceased was armed with a knife and obviously spoiling for a fight. There was no showing that Benedicto sustained any injury, not even a scratch, from his encounter with Elmer Publico. This is surprising, since the picture he paints of the victim is that of an unreasonably aggressive young man, armed and ready to pick a fight with the entire barrio. The very fact that he emerged uninjured from his encounter with such a dangerous individual, much stronger than he and armed besides, belies his claim that he alone clubbed the deceased in self-defense. This, taken in conjuction with Dr. Tacuboy’s testimony, lends support to the contention of the prosecution witnesses that his sons and son-in-law also took part in the assault.

The accused-appellants contend that there was no treachery since Elmer Publico would have been able to see the approach of his would-be attackers. We do not agree. It has been held that while a victim may have been warned of a possible danger to his person, in treachery, what is decisive is that the attack was executed in such a manner as to make it impossible for the victim to retaliate.[30] The qualifying circumstance of treachery is present as indicated in the manner by which the accused-appellants ganged up on the victim. As we have held in the case of People vs. Gregorio:[31]
“The mode of attack adopted by the accused qualifies the killing to murder where the same rendered the victims who were unarmed at that time, defenseless and helpless, without any opportunity to defend themselves from their assailants’ unreasonable and unexpected assault.”
In the case at bench, Elmer Publico did not have any chance of defending himself from the accused-appellants’ concerted assault, even if he could have seen the impending attack. Indeed, what chance does one man, unarmed and with only an elderly woman for a companion, have against five others armed with deadly weapons? The fact that most, if not all, of the deceased’s injuries were sustained in his head and upper body indicates that his attackers gave him no chance to defend himself. Their only thought was to hit, and hit where it could inflict the most damage. That the victim was unarmed and defenseless when he was clubbed is bolstered by the fact that no knife was ever presented by the defense as evidence that the deceased provoked Benedicto Javier into defending himself. We thus give greater weight to Juanito Publico’s claim that his brother was unarmed when attacked, as well as to Eleazar Pintazon’s refutation of Benedicto Javier’s claim that the victim was drunk.

We are also in agreement with the finding that there was conspiracy between the accused-appellants, as alleged in the information. As enunciated by the trial court:
“Conspiracy as alleged in the information is convincingly established. Benedicto and Angelito clubbed Elmer simultaneously or almost at the same time, while moments later Domingo, Redencio and Edwin joined the attacked [sic] upon Elmer hitting the head, shoulder and other parts of the latter’s body inflicting twelve injuries, six of which were fatal, any of which caused the death of the victim as testified to by Dr. Tacuboy. These acts of all the five accused indicate concerted action, unity of purpose, and intent to kill Elmer.”[32]
Indeed, there is a showing that the accused-appellants were of one mind, not only in attacking Elmer Publico, but in the manner by which the attack was to be made. The proof of conspiracy is perhaps most frequently made by evidence of a chain of circumstances.[33] In the case at bench, the perpetrators assaulted the victim almost simultaneously. Their choice of weapons, such as the wooden stakes and the boat paddle, showed that they were of one mind in their chosen method of inflicting injury -- that of clubbing the deceased. That the blows were limited to the head and upper body show that there was a method, a common design and purpose, to their attack. Where the acts of the accused collectively and individually demonstrate the existence of a common design towards the accomplishment of the same unlawful purpose, conspiracy is evident. Thus, the perpetrators should be liable as principals.[34]

With regard to the amount of damages, we hold that the amount of P30,000.00 awarded by the trial court to the heirs of the victims should be increased to P50,000.00, in line with present jurisprudence.[35]

WHEREFORE, the judgment appealed from is AFFIRMED, with the modification that the indemnity awarded to the heirs of the victim be increased to P50,000.00.

Padilla, (Chairman), Bellosilo, Vitug, and Kapunan, JJ.,concur.

[1] Rollo, p. 1.

[2]Decision penned by Judge Concepcion A. Salud dated October 24, 1986, pp. 3-4, Rollo, pp. 39-40.

[3]Rollo, p. 50.

[4] Resolution by the Assistant Provincial Fiscal dated February 10, 1987, pp. 2 - 3, Rollo, pp. 52 - 53.

[5]Original record, p. 3.

[6] Testimony taken on February 4, 1988, TSN p. 9, Rollo, p. 91.

[7] Testimony taken on July 29, 1987, TSN p. 14 and 20, Rollo, p. 43 and 49.

[8] Testimony taken on July 29, 1987, TSN pp. 32 - 34, Rollo, pp. 61 - 63.

[9] Testimony taken on February 4, 1988, TSN pp. 36 - 37, Rollo pp. 118 - 119.

[10] Ibid, TSN p. 42, Rollo, p. 124.

[11] Testimony taken on September 1, 1987, TSN pp. 7 - 9, Rollo, pp. 70 - 72.

[12] Testimony taken on February 9, 1988, TSN pp.17 - 20, Rollo, pp. 147 - 150.

[13] Testimony taken on March 10, 1988, TSN pp. 3 - 10, Rollo, pp. 158 - 165.

[14] Testimony taken on March 28, 1988, TSN pp. 3 - 8, Rollo, pp.174 - 179.

[15] Testimony of Angelito Javier taken on March 28, 1988, TSN pp.16-19, Rollo, pp. 187 - 190.

[16] Decision in Criminal Case No. X-86-161, penned by Judge Ricardo A. Baculi, dated June 10, 1988, pp. 27 - 28, Rollo, pp. 61 - 62.

[17]Brief filed by the Office of the Solicitor General dated December 9, 1991, p. 14.

[18] Decision in Criminal Case No. X-86-161, penned by Judge Ricardo A. Baculi, dated June 10, 1988, p.23, Rollo, p. 57.

[19] People vs. Rivera, 242 SCRA 26 (1995); People vs. Pija, 245 SCRA 80 (1995); People vs. Escoto, 244 SCRA 87 (1995); People vs. Lazaro, 249 SCRA 234 (1995); People vs. Lapuz, 250 SCRA 250 (1995).

[20] Brief for Accused-Appellants filed on August 9, 1991, Rollo, p. 102.

[21] Testimony taken on October 14, 1986, TSN p. 5, Rollo, p. 8.

[22] Re-direct testimony taken on October 14, 1986, TSN p. 18, Rollo, p. 21.

[23] Re-direct testimony taken on February 9, 1988, in Branch 10 of RTC Aparri before Judge Ricardo A. Baculi, TSN p. 24, p. 154.

[24] Decision penned by Judge Ricardo A. Baculi, p. 22, Rollo, p. 56.

[25] Brief filed by the Office of the Solicitor General, p. 10, citing the case of People vs. Javier, 182 SCRA 830.

[26] Id., citing People vs. Almario, 171 SCRA 291.

[27] People vs. Jose, 250 SCRA 319 (1995).

[28] People vs. Amania, 248 SCRA 486 (1995).

[29] Cross-examination of Juanito Publico taken on July 29, 1987, TSN p. 29, Rollo, p. 58.

[30] People vs. Panganiban, 241 SCRA 91 (1995).

[31] 255 SCRA 380 (1996).

[32] Decision penned by Judge Ricardo A. Baculi, Rollo, p. 60 - 61.

[33] People vs. Miranday, 242 SCRA 620 (1995).

[34] People vs. Gregorio, 255 SCRA 380 (1996).

[35] People vs. Dasig, 221 SCRA 549 (1993)

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