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535 Phil. 345


[ G.R. NO. 153144, October 16, 2006 ]




Before Us is a Petition for Certiorari under Rule 65 of the Rules of Civil Procedure, assailing the Decision[1] of the Court of Appeals which reversed the Decision[2] of the National Labor Relations Commission (NLRC), affirming the Decision[3] of Labor Arbiter Ray Alan T. Drilon, Regional Arbitration Branch No. VI, Bacolod City, which dismissed private respondent's complaint for illegal dismissal and money claims, and held that private respondent was validly terminated, as well as the Resolution dated 19 March 2002 denying petitioner's Motion for Reconsideration and modifying its Decision to include an award for attorney's fees.

Petitioner VMC Rural Electric Service Cooperative, Inc. (VRESCO) is an electric cooperative supplying and selling electricity within the northern part of Negros Occidental, particularly the contiguous cities of Victorias, Cadiz, Escalante, San Carlos, and the municipalities of E.B. Magalona, Manapla, Toboso, and Calatrava.  In May 1986, VRESCO hired private respondent Joel A. Gustillo as driver-lineman.

Private respondent himself is an electric consumer serviced by petitioner VRESCO.  On 21 February 1995, while private respondent was on official vacation leave, the electric line carrying electricity to his house was allegedly disconnected by Julio Prino, an employee of VRESCO, for non-payment of electric bills.  At the time of the alleged disconnection, respondent and his wife were not at their residence and only private respondent's father-in-law was at the house.  According to Julio Prino, he went to the house of private respondent upon instruction of the Head of Collection (of VRESCO) to demand payment for the unpaid electric bills, with further instruction to cause the disconnection should the consumer fail to pay upon demand.[4]

On 2 March 1995, the inspection team of VRESCO surveying the Manapla area found that there was electricity in the house of private respondent despite the supposed disconnection.  This prompted the inspection team to conduct an ocular inspection on the line.  It was purportedly discovered that the electrical line was reconnected without official permission from VRESCO.  According to the inspection team, the tape covering the spliced ends of the wire leading to private respondent's house were scrapped off and the spliced ends were intentionally bent like a hook and made to touch or connect to the secondary line.  This supposed illegal connection caused electrical current to flow directly from the secondary lines to private respondent's house without passing the meter where the alleged disconnection was effected.  After taking pictures of the purported illegal connection and making an inspection report, the inspection team proceeded to inform private respondent's wife of the illegal connection.  Private respondent's wife denied any knowledge of said illegal connection; nonetheless, the inspection team gave her a copy of their inspection report.

After the submission of the inspection team of its official report to management, private respondent was sent a memorandum directing him to explain in writing why he should not be dismissed from employment.  Subsequently, an Investigating Committee was formed to conduct a formal investigation on the matter.  After the proceedings before the Investigating Committee, private respondent was served a written notice of termination on 28 August 1995.  In connection with the discovery of the alleged illegal connection, private respondent was charged by the Provincial Prosecutor for pilferage and theft of electricity under Republic Act No. 7832 (Anti-electricity and Electric Power Transmission Lines/Materials Pilferage Act of 1994) before the Regional Trial Court of Silay City.

Aggrieved by his dismissal from employment, private respondent filed a complaint for illegal dismissal with claim for moral and exemplary damages before the Regional Arbitration Branch No. VI, National Labor Relations Commission, Bacolod City.  After submission of the parties' respective position papers, a Decision dated 12 January 1998 was rendered by Labor Arbiter Ray Alan T. Drilon dismissing the complaint for lack of merit, to wit:
We are firmly convinced that complainant has committed serious misconduct, if not, fraud and willful breach of trust, to justify his termination.  And there is substantial and reasonable basis to support the conclusion that complainant was responsible for the illegal tapping and reconnection of his electrical connection which was officially disconnected for his failure to pay electrical bills.  As correctly observed by the respondent, complainant was the only one who stand to benefit from the illegal connection; he has the technical and practical knowledge about electrical works in view of his job; he was potentially capable of making out the electrical connection; actual inspection reveals that the illegal connection was made and deliberately done thru the agency of human will because of the following observable facts: first, the wire from the meter going to the house of the complainant was dead because it was already officially disconnected for non-payment of bills; second, the connecting sides of both wires were spliced together and connected by electrical tapes; third, the spliced ends were so positioned below and away from the live secondary wire; fourth, when found by the inspection team, the spliced ends were already bent and forward into hooks and the electrical tape already scraped off at the lower portion of the hook to make it bare and the wire was raised to come into contact with the secondary live wire.  This could not have happened without somebody making and shaping the hook, scraping the electrical tape and making the connection by hooking up the wire.

Despite his strong denial, the Assistant Provincial Prosecutor in his resolution was convinced that there is prima facie evidence to warrant the prosecution of the complainant for violation of RA 7832, the law on Pilferage of Electricity and Theft of Electricity power.

The absence of any direct testimony or eyewitness account pointing to the complainant as the one responsible for the illegal connection is not a strong argument to exculpate him viewed in the light of the strong and positive circumstantial evidence which point to the complainant as the only person who has the motive to commit the act.

In our jurisdiction, proof beyond reasonable doubt is not required.  All that is needed is sufficient basis to support the conclusion of loss of trust and confidence.

It has been repeatedly held that an employer could not be legally compelled to continue with the employment of a person who admittedly is guilty of breach of trust towards his employer and whose continuance in the service of the latter is patently inimical to its interests.  It has also been held that theft by the employee of the very same property which the employee was entrusted to service is a valid ground for the dismissal of said employee, as he committed the very act which he was supposed to work or guard against.

Complainant's position as line-man should have made him all the more aware that the theft of electric power and pilferage of electricity through illegal tapping is a serious offense which is penalized by law.  He should have all the more realized, and definitely he does, that as an employee of the electric cooperative, he was expected to watch and be vigilant against theft of electricity and yet it appears that he was the first to commit the very same act, which he was supposed to look out for.

There is therefore ample basis to justify the termination of complainant's employment and his weak denials cannot overcome the evidence presented against him.

It is sufficient if the employer has reasonable grounds to believe, if not entertain the moral conviction, that the employee concerned is responsible for the misconduct and that the nature of his participation therein rendered him absolutely unworthy of the trust and confidence demanded by his position.

WHEREFORE, in view of all the foregoing, judgment is hereby rendered dismissing the complaint for lack of merit.[5]
Private respondent appealed the above-quoted Decision before the Fourth Division of the NLRC, Cebu City, which affirmed the findings of the Labor Arbiter in a Decision dated 22 December 1999.  The NLRC dismissed the appeal for lack of merit maintaining that VRESCO was able to carry out its burden of proof that just cause existed for the termination of private respondent.  According to the NLRC, there is probable cause that private respondent was guilty of misconduct after it was found that electricity was still flowing into private respondent's house despite the disconnection on 21 February 1995.  The NLRC further explained that in the light of the evidence presented by VRESCO and the fact that an Information for violation of Section 2 of Republic Act No. 7832 was filed against private respondent, puts into naught his denial of any knowledge as to who installed the electric supply to his house.  Furthermore, such bare denial is insufficient to overcome VRESCO's substantial evidence to sustain the validity of private respondent's dismissal.

Thereafter, private respondent elevated the case to the Court of Appeals via a Petition for Certiorari under Rule 65 of the Rules of Court.  On 25 September 2001, the assailed Decision was rendered by the appellate court setting aside the Decision of the Labor Arbiter and ordering the reinstatement of private respondent to his original position with payment of backwages.  According to the Court of Appeals:
Public respondent's basis in affirming the decision of the Labor Arbiter is based on the following evidence, to wit: petitioner Gustilo's skill and position as a lineman made him a suspect that he could have climbed and illegally tapped the wire indirectly to his house since he incurred a two-month arrears from his payment of electric bills with private respondent cooperative, and that only petitioner Gustilo and his family benefited from said act.

We are not convinced.

This Court is mindful of the fact that in administrative proceedings like illegal dismissal cases, the guilt of a party need not be shown by proof beyond reasonable doubt.  What is required is mere substantial evidence.  In this connection, the ruling in Ang Tibay v. CIR becomes relevant anew, to wit:
"Substantial evidence is more than a mere scintilla.  It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
What remains uncontroverted is that when petitioner Gustilo and his wife arrived at 7:00 p.m. on February 21, 1995, electricity had been restored inside his house.  It is noteworthy that petitioner Gustilo, despite being an employee of public respondent cooperative, was not notified of the disconnection.  Petitioner was not aware nor did he have an idea, that earlier that day the electric power was cut-off and immediately reconnected when his brother-in-law Bienvenido Clamiano promptly paid, that same afternoon his arrears to Julio Prino, private respondent cooperative's representative.  Therefore, petitioner Gustilo was not in the premises of his residence when power was restored.  Petitioner Gustilo could not have physically performed the illegal connection alleged by the private respondent cooperative.  In addition, on the very same day that the disconnection was effected by Prino, the latter received payment for the arrears amounting to a measly Eight Hundred Five Pesos and Sixty-two centavos (P805.62) and then restored back the power.  This act obliterates the defense of the private respondent cooperative that it was petitioner Gustilo who climbed the electric post and illegally connected the electric line.  Petitioner Gustilo had no reason to illegally reconnect the electric line since he did not even know that it was disconnected earlier.

Corrolarily, We find that there was no just cause to terminate the employment of petitioner Gustilo. x x x

x x x x

Private respondent cooperative acted on mere conjuncture and speculation just because petitioner Gustilo is a lineman and he has the skill to do the act charged.  But no evidence or witness could prove the same.

Consequently, there being no just cause for petitioner Gustilo's removal from service, he is entitled to reinstatement with backwages.[6]
With the reversal of the NLRC and Labor Arbiter's Decisions, VRESCO filed a Motion for Reconsideration before the appellate court, which was subsequently denied in a Resolution dated 19 March 2002.  Hence, the instant Petition for Certiorari questioning the Court of Appeals' Decision and Resolution on the ground of grave abuse of discretion.

In a Resolution dated 17 July 2002, the Court dismissed the instant petition for being a wrong mode of appeal, the proper being a Petition for Review on Certiorari under Rule 45 of the Rules of Court.  Petitioner VRESCO sought the reconsideration of said Resolution contending that what are raised in the present petition are not questions of law but the grave abuse of discretion amounting to want or excess of jurisdiction committed by the Court of Appeals.  VRESCO maintains that the Court of Appeals should not have reviewed the findings of facts of both the Labor Arbiter and the NLRC since the ambit of a petition for certiorari under Rule 65 is confined to issues involving the administrative bodies' grave abuse of discretion.  Thus, VRESCO contends that the appellate court committed grave abuse of discretion through its unwarranted re-examination and correction of the evidence presented before the labor Arbiter and the NLRC.  On 26 March 2003, the Court granted petitioner VRESCO's Motion for Reconsideration and reinstated the instant petition.

For his part, private respondent expounded in his Memorandum that:
Rule 45 of the Rules of Court, as a mode of appeal, cannot be substituted with Rule 65.

It is the humble submission of private respondent that whether petitioner is raising a question of fact or law, or mixed questions of fact and law, the mode of appeal from the Decision of the Court of Appeals would still be Rule 45, and not Rule 65.

Even assuming arguendo that petitioner erroneously captioned its pleading under Rule 65 instead of Rule 45, still the present petition is dismissible outright for being filed beyond the 15-day period to file an appeal.

x x x x

Moreover, private respondent Gustilo reiterates his posture that he was illegally dismissed on the following grounds:

FIRST. The alleged infraction committed by private respondent is COMPLETELY UNFOUNDED, BASELESS, and MALICIOUS.  As can be borne out from the records of the case, petitioner VRESCO's finding on alleged illegal tapping was based on mere speculation and misplaced assumption.

The members of petitioner VRESCO's raiding team were all co-employees of private respondent Gustilo.  It is quite strange why his own co-employees would "disconnect" his household electrical line for mere non-payment of two (2) monthly bills when they knew for a fact that what they were disconnecting was a fellow employee and personally known to them, not to mention the fact that private respondent was a salaried employee who could easily pay the two maturing bills of P276.31 and P529.31;

x x x x

If petitioner VRESCO could extend accommodation to other defaulting customers (who defaulted payments for several months), there is no plausible reason why a fellow employee could not be extended a more liberal privilege, especially so when at the time of the alleged disconnection no member of the family was present inside the house.

Assuming arguendo his electrical line leading to his house was disconnected by the VRESCO raiding team, still the two bills were immediately paid right then and there by private respondent's brother-in-law, Bienvenido Clamiano, who was then present in the area as the latter's house was a stone's throw away from Gustilo's house.  With the payment, there was nothing suspicious that would arouse their perception that there was disconnection, because the house was lighted when they arrived home.

x x x x

FOURTH.  Just a few meters from the said electrical post are houses of residents who could have easily witnessed private respondent Gustilo climbing the post and making the alleged wire tapping.

Annexes "F", "G", "H", and "I", (pictures) of the Motion for Reconsideration (Annex "D" of the petition) dated February 9, 2000 would also show the height of said electrical post which are clear evidence that it is not easy to just climb the post without the use of "climber" used by a lineman.  As reiterated, private respondent had not been issued by petitioner any climber or that he was in possession of a climber before, during, and after the alleged date of illegal wire tapping.

x x x x

SIXTH. Petitioner VRESCO's raiding team who were also co-employees of private respondent Gustilo did not bother to ask the wife of the herein private respondent or any of the neighbor or barangay official or any other impartial person to witness the climbing by Mr. Ferdinand Sofio of said electrical post where the alleged wire tapping occurred.  Neither was she or her neighbor or barangay official or any other impartial person asked to witness the taking of pictures of the alleged wiretapping.

SEVENTH.  Even the NEGATIVES AND PICTURES of said wiretapping which are vital evidence to the pending criminal case are allegedly lost by the custodian of petitioner VRESCO.  The said negatives and original pictures could have been made as vital evidence on how the alleged wiretapping was done or could have been done by private respondent and his wife.  As to why these are lost is highly suspicious.  This would safely lead us to the conclusion that petitioner VRESCO itself is guilty of suppressing its own evidence.

x x x x

Also, about a few minutes after the alleged disconnection, Bienvenido Clamiano, the brother of Susan Gustilo (private respondent's wife), minutes or immediately after the alleged disconnection, paid the disconnecting personnel before the latter had left the area.  So that when private respondent and his wife arrived home late at night, they were of the impression that they were not disconnected because their lights were on.

This belief is reinforced by the fact of payment immediately after said disconnection or before the "disconnector" left the place, meaning that the payment was not paid at petitioner cooperative but right then and there at the area of private respondent Gustilo.

As proof of said immediate payment by Mr. Bienvenido Clamiano, attached to the Motion for reconsideration (Annex "D" of the petition) are two (2) receipts which are marked as Annexes "A" and "B".  The two receipts were in full payment of the two past due bills.  The original receipts are presently marked as exhibits in the criminal case pending before the Regional Trial Court in Silay City, Negros Occidental.

x x x x

TENTH.  Private respondent was not accorded due process when he was dismissed.  He was dismissed on bare and malicious allegations that he wiretapped his household electrical consumption.[7]
The pivotal issue then, to be resolved in the instant case, is whether or not the Court of Appeals committed grave abuse of discretion in reviewing the findings of fact of the Labor Arbiter as affirmed by the NLRC.

First and foremost, the power of the Court of Appeals to review NLRC decisions via a Rule 65 Petition for Certiorari has been settled as early as in Our Decision in the case of St. Martin Funeral Home v. National Labor Relations Commission.[8]  In said case, this Court held that the proper vehicle for such review was a Special Civil Action for Certiorari under Rule 65 of the Rules of Court, and that this action should be filed in the Court of Appeals in strict observance of the doctrine of the hierarchy of courts.[9]  Moreover, it is already settled that under Section 9 of Batas Pambansa Blg. 129, as amended by Republic Act No. 7902[10] (An Act Expanding the Jurisdiction of the Court of Appeals, amending for the purpose of Section Nine of Batas Pambansa Blg. 129 as amended, known as the Judiciary Reorganization Act of 1980), the Court of Appeals - pursuant to the exercise of its original jurisdiction over Petitions for Certiorari - is specifically given the power to pass upon the evidence, if and when necessary, to resolve factual issues.[11]  As clearly stated in Section 9 of Batas Pambansa Blg. 129, as amended by Republic Act 7902:
The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings. x x x.
We now come to a determination of whether or not the Court of Appeals gravely abused its discretion in arriving at its conclusion that there was no just cause to terminate the employment of private respondent Gustilo.

In a Petition for Certiorari, it is the burden of petitioner to show grave, not just ordinary, abuse of discretion.  Grave abuse of discretion exists where an act of a court or tribunal is performed with a capricious or whimsical exercise of judgment equivalent to lack of jurisdiction,[12] or where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility which must be so patent and gross as to amount to an invasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law - mere abuse of discretion is not enough.[13]  Mere errors of fact or law committed by the lower court are not correctable via a Rule 65 Petition for Certiorari.[14]

In the case at bar, petitioner VRESCO failed to prove that the Court of Appeals acted with grave abuse of discretion in reversing the Decisions of both the NLRC and the Labor Arbiter.  Contrary to the claim of VRESCO, it is not tantamount to grave abuse of discretion amounting to want or excess of jurisdiction for the Court of Appeals to review the facts of the case, and thereafter, upon its own judgment, reverse the findings of the Labor Arbiter and the NLRC.  The appellate court drew the conclusion that there is no just cause for respondent Gustilo's removal from service upon its own appreciation of the arguments and pieces of evidence contained in the respective position papers and appeal memoranda presented by the parties to this case.  Based on the Court of Appeals' own discernment of the facts of the case, VRESCO, in dismissing private respondent, acted on mere conjuncture and speculation just because private respondent has the skill to do the act charged even if there was no evidence or witness to prove the same.

The impropriety of this conclusion, as perceived by petitioner, cannot be the subject of a petition for certiorari.  If ever there was indeed an error committed by the appellate court in its appreciation of the facts and the subsequent conclusions it had reached, such would be, at the least, an error of fact which is not equivalent to grave abuse of discretion.  The special civil action for certiorari is a remedy designed for the correction of errors of jurisdiction and not errors of judgment.[15]  The raison d'etre for the rule is when a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error is committed.[16]  If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment.[17]  Hence, where the issue or question involved affects the wisdom or legal soundness of the decision - not the jurisdiction of the court to render the decision - the same is beyond the province of a special civil action for certiorari.[18]

Moreover, we perceive a patent error in the mode of appeal elected by petitioner for the purpose of assailing the Decision of the Court of Appeals.  One of the requisites of certiorari is that there be no available appeal or any plain, speedy and adequate remedy.[19]  Where an appeal is available, certiorari will not prosper, even if the ground therefore is grave abuse of discretion.[20]  In the case at bar, the proper remedy of petitioner VRESCO to dispute the Decision of the appellate court is to file a petition for review on certiorari under Rule 45 of the Rules of Court, which should be instituted within 15 days from receipt of the assailed decision or resolution.[21]  In a long line of cases, the Court has consistently emphasized that after the lapse of the 15-day period to file a petition for Review on Certiorari, the special civil action of certiorari under Rule 65 is not, and cannot be, a substitute for a lost remedy of appeal.[22]  In the case at bar, the petition was filed 45 days after receipt of the Resolution of the Court of Appeals denying its Motion for Reconsideration, evidently beyond the 15-day period for filing a petition for review on certiorari, hence the period to appeal was lost.  Therefore, the instant petition cannot prevail since a petition for certiorari cannot substitute for a lost appeal, specially if one's error in one's choice of remedy occasioned such loss or lapse.[23]

While there have been instances when the Court has relaxed the rule that a special civil action under Rule 65 of the Rules of Court will not be a substitute or cure for the failure to file a timely petition for review on certiorari under Rule 45, such as where the application of this rule will result in a manifest failure or miscarriage of justice,[24] this exception to the general rule is not proper in the instant case.  Petitioner, in the case at bar, failed to establish any ground to justify its entitlement to a more lenient application of the rules of procedure when such failure was due to its own neglect or error in the choice of remedies.

WHEREFORE, premises considered, the instant petition is hereby DISMISSED.  The Decision of the Court of Appeals in CA-G.R. SP No. 60342, dated 25 September 2001 and its Resolution dated 19 March 2002 are hereby AFFIRMED.  Costs against petitioner.


Panganiban, C.J., (Chairperson), Ynares-Santiago, Austria-Martinez, and Callejo, Sr., JJ., concur.

[1] CA-G.R. SP No. 60342, dated 25 September 2001, penned by Associate Justice Remedios A. Salazar-Fernando with Associate Justices Romeo A. Brawner and Mariano C. del Castillo, concurring. Rollo, pp. 29-41.

[2] NLRC Case No. V-000227-99, dated 22 December 1999. Rollo, pp. 104-110.

[3] RAB Case No. 06-08-10365-96, dated 12 January 1998. Rollo, pp. 85-91.

[4] RAB Decision, p. 2; rollo, p. 86.

[5] RAB Decision, pp. 4-7; rollo, pp. 88-91.

[6] CA Decision, pp. 5-7; rollo, pp. 33-35.

[7] Private Respondent's Memorandum, pp. 5-10; rollo, 234-239.

[8] 356 Phil. 811 (1998).

[9] Tanjuan v. Philippine Postal Savings Bank, Inc., 457 Phil. 993, 1006 (2003).

[10] Section 1. Section 9 of Batas Pambansa Blg. 129, as amended, known as the Judiciary Reorganization Act of 1980, is hereby further amended to read as follows:
"Sec. 9. Jurisdiction. - The Court of Appeals shall exercise:

"(1) Original jurisdiction to issue writs of mandamus, prohibition, certiorari, habeas corpus, and quo warranto, and auxiliary writs or processes, whether or not in aid of its appellate jurisdiction;

"(2) Exclusive original jurisdiction over actions for annulment of judgments of Regional Trial Courts; and

"(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders or awards of Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions, including the Securities and Exchange Commission, the Social Security Commission, the Employees Compensation Commission and the Civil Service Commission, except those falling within the appellate jurisdiction of the Supreme Court in accordance with the Constitution, the Labor Code of the Philippines under Presidential Decree No. 442, as amended, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of the fourth paragraph of Section 17 of the Judiciary Act of 1948.

"The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and perform any and all acts necessary to resolve factual issues raised in cases falling within its original and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings. Trials or hearings in the Court of Appeals must be continuous and must be completed within three (3) months, unless extended by the Chief Justice."
[11] R & E Transport, Inc. v. Latag, G.R. No. 155214, 13 February 2004, 422 SCRA 698, 704.

[12] China Banking Corporation v. Mondragon International Philippines, Inc., G.R. No. 164798, 17 November 2005, 475 SCRA 332, 337.

[13] Bedruz v. Sandiganbayan, G.R. No. 161640, 9 December 2005, 477 SCRA 286, 294; citing Santos v. Commission on Elections, 447 Phil. 760, 772 (2003).

[14] Supra note 9, citing Elks Club v. Rovira, 80 Phil. 272, 275 (1948).

[15] Land Bank of the Philippines v. Court of Appeals, 456 Phil. 755, 787 (2003).

[16] Id.

[17] Id.

[18] Id.

[19] David v. Cordova, G.R. No. 152992, 28 July 2005, 464 SCRA 384, 394.

[20] Id. at 395.

[21] Alba v. Court of Appeals, G.R. No. 164041, 29 July 2005, 465 SCRA 495, 511.

[22] New Ever Marketing, Inc. v. Court of Appeals, G.R. No. 140555, 14 July 2005, 463 SCRA 284, 293-294; citing Land Bank of the Philippines v. Court of Appeals, 456 Phil. 755, 787 (2003); and Fajardo v. Bautista, G.R. Nos. 102193-97, 10 May 1994, 232 SCRA 291, 298.

[23] Supra note 19.

[24] Escudero v. Dulay, G.R. No. L-60578, 23 February 1988, 158 SCRA 69, 77.

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