Agfha, Inc. v. Commissioner of Customs

SECOND DIVISION [C.T.A. CASE NO. 5290. May 17, 2005.] AGFHA, INCORPORATED , petitioner , vs . COMMISSIONER OF CUSTOMS , respondent . RESOLUTION PALANCA-ENRIQUEZ , J p : On October 5, 1995, Agfha, Incorporated (hereafter "petitioner") filed a Petition for Review before this Court appealing the decision dated August 25, 1995, of the Commissioner of Customs (hereafter "respondent") dismissing the appeal and affirming the decision of the Manila International Container Port (hereafter "MICP'") District Collector of Customs dated September 5, 1994. This case was raffled to the Second Division of this Court on November 26, 2004. Due to the retirement of the then Ponente, Associate Judge Ramon O. de Vega, subsequently, this case was raffled to Associate Justice Olga Palanca-Enriquez, as the new ponente. SCHTac On November 4, 1996, this Court rendered judgment in favor of the petitioner, the dispositive portion of which reads as follows: "WHEREFORE, in view of the foregoing premises, the instant Petition for Review is hereby GRANTED. Accordingly, the decision of the respondent in Customs Case No. 94-017, dated August 25, 1995, affirming the decision of the MICP Collector, dated September 5, 1994, which declared the forfeiture of the subject shipments in favor of the government, is hereby REVERSED and SET ASIDE. Respondent is hereby ORDERED to effect the immediate RELEASE of the subject shipment of goods in favor of the petitioner. No costs. SO ORDERED." Upon appeal of the respondent by way of Petition for Review, docketed as CA-G.R. SP No. 42590, the Court of Appeals rendered judgment on May 31, 1999, dismissing the petition for lack of merit, the dispositive portion of which reads as follows: CEcaTH "WHEREFORE, the instant petition is hereby DENIED DUE COURSE and DISMISSED for lack of merit. Accordingly, the Commissioner of Customs is hereby ordered to effect the immediate release of the shipment of the AGFHA, Incorporated described as "2 x 40" Cont. No. NYKU-6772906 and NYKU-6632117 STA 197 Bales of Textile Grey Cloth" placed under Hold Order No. H/C1/01/2293/01 dated 22 January 1993. No costs. SO ORDERED." The case was elevated by the respondent to the Supreme Court, via a Petition for Review on Certiorari , docketed as G.R. No. 139050. On October 2, 2001, the Supreme Court rendered judgment affirming the decision of the Court of Appeals, the dispositive portion of which reads as follows: HATEDC "WHEREFORE, the petition is hereby DENIED and the assailed decision of the Court of Appeals is AFFIRMED. SO ORDERED." On March 18, 2002, the Supreme Court issued an Entry of Judgment. Upon motion of the petitioner, this Court issued a Writ of Execution directing respondent and his authorized representative to effect the immediate release of the subject shipment to the petitioner. The writ, however, was returned unsatisfied. On July 24, 2003, petitioner filed a "Motion for Show Cause Order" praying that respondent be ordered to show cause why he should not be cited for contempt of court for defying the writ of execution. On August 13, 2003, this Court granted petitioner's "Motion for Show Cause Order" and ordered the respondent to show cause, within fifteen (15) days from receipt thereof, why he should not be disciplinarily dealt with for his failure to comply with the Writ of Execution issued by this Court on October 16, 2002. EHITaS On September 1, 2003, respondent filed a Manifestation and Motion stating that despite diligent efforts to obtain the necessary information and considering the length of time that had lapsed since the subject shipment arrived at the Bureau of Customs, the Chief of the Collection and Cargo Disposal Division of the Manila International Container Port was unable to determine the status, whereabouts and disposition of said shipment. On September 5, 2003, petitioner filed a "Reply (To Respondent's Explanation with Motion for Clarification) and Motion to Set Case for Hearing". On September 13, 2003, petitioner filed a "Motion to Cite Respondent in Contempt of Court". On November 17, 2003, this Court denied petitioner's "Motion to Expunge" and "Motion to Cite Respondent in Contempt" for lack of merit. On April 12, 2004, petitioner filed a "Motion to Set Case for Hearing" to determine: HacADE 1.) whether petitioner's shipment was actually lost; 2.) the cause and/or circumstances surrounding the loss; and 3.) the amount respondent should pay or indemnify should the latter's shipment be found to have been actually lost. The motion was set for hearing on July 28, 2004. cSIADa At the scheduled hearing, after the oral arguments, this Court directed the parties to file their respective memoranda to ventilate their respective positions on the issues presented by the petitioner. Both parties have complied. For resolution, therefore, are two issues raised by the petitioner, to wit: (1) Is the respondent liable to indemnify the petitioner for the loss of the seized goods?, and (2) If in the affirmative, how much is respondent's liability? As regards the first issue, the petitioner contends that the respondent has not proved the fact of loss, and is, therefore, presumed to have illegally misappropriated/converted petitioner's shipment. It claims indemnity for its lost shipment a replacement value of PhP52,936,678.78 as of March 30, 2004, applying as basis for computation the conversion rate prevailing at the time of payment at PhP56.234 per US$1.00 multiplied by PhP365,716.24 allegedly the total dutiable value of shipment. It was further multiplied by ten percent (10%) for other charges, or for a total landed cost of PhP22,622,255.89 exclusive of one percent (1%) interest per month, commencing from January 22, 1993 up to March 2004 (Phoenix Assurance Company vs. Macondray and Co., Inc., 64 SCRA 16; and Zagala vs. Jimenez, 152 SCRA 147) . On the other hand, respondent admitted that the shipment of the petitioner was actually lost under his custody. Thus, it is now impossible for the respondent to release the shipment of goods to the petitioner. Respondent invokes the doctrine of state immunity from suit to negate his liability to the petitioner. aHESCT A basic tenet in our rules of procedure is that a judgment which is final and executory cannot be amended or modified anymore. Nothing is more settled in law than that once a judgment attains finality, it thereby becomes immutable and unalterable. It may no longer be modified in any respect, even if the modification is meant to correct what is perceived to be an erroneous conclusion of fact or law, and regardless of whether the modification is attempted to be made by the court rendering it or by the highest court of the land (Gallardo-Corro vs. Gallardo, 350 SCRA 568, 578) . However, this rule is subject to exceptions as stated in the case of David vs. Court of Appeals, 316 SCRA 710 : "One exception is that where facts and/or events transpire after a decision has become executory, which facts and/or events present a supervening cause or reason which renders the final and executory decision no longer enforceable. Under the law, the court may modify or alter a judgment even after the same has become executory whenever circumstances transpire rendering its execution unjust and inequitable, or where certain facts and circumstances justifying or requiring such modification or alteration transpired after the judgment has become final and executory." In the aforecited case, the Supreme Court also held that "where an execution order which has been issued is still pending, all proceedings on the execution are still proceedings in the suit" (Balais vs. Velasco, 252 SCRA 707, 708) . As such, modification of such judgment is allowed (Abalos vs. Philex Mining Corporation, 393 SCRA 139-140) . SCHTac In the case at bench, there is no dispute that after this Court's decision dated November 4, 1996 became final and executory, the subject shipment was unexplainably and admittedly lost while in the custody of the Bureau of Customs (hereafter "BOC"), which is supposed to be its committed custodian. Record shows that in compliance with the directive of the respondent to locate the whereabouts of the subject shipment, the Chief of the Auction and Cargo Disposal Division of the MICP, in his Memorandum dated August 27, 2002 to the Chief, Law Division of the Manila International Container Port, reported as follows: "Query No. 1 Please be informed that despite diligent efforts to obtain the necessary information and because of the length of time that has lapsed since the said importation had arrived, the undersigned were unable to determine the status, whereabouts, and disposition of subject shipment. However, as far as our records are concerned, there was an auction sale held last June 15, 1999, wherein various items located at RSBS were sold under Lot No. 130-99 for the price of Php1,039,300.00 from a floor price of Php393,455.90. Among the items auctioned off under said lot were 30 bales of Grey Cloth, approximately 20,084.78 meters, with an individual floor price of Php100,423.90. The proportionate value of the said cloth in relation to its bid price was Php265,266.22 (xerox copies pertaining to the auction sale are hereto attached). ISTDAH xxx xxx xxx." (Annex "B", respondent's "Explanation (With Motion for Clarification)" dated August 11, 2003. Also, in respondent's "Explanation (With Motion for Clarification)" dated August 11, 2003, it is stated, among others: "xxx xxx xxx Clearly therefore, the fact of loss having been established, the corresponding writ issued can not be effected. To this end, Respondent seeks by way of clarification, guidance from this Honorable Court as to how to execute its payment. TDEASC xxx xxx xxx." (CTA Records, p. 568) . As admitted by counsel for the respondent, the shipment of the petitioner was actually lost while in the custody of the Bureau of Customs. There is no doubt that the officers and employees of the Bureau of Customs were negligent in the performance of their duties. Undoubtedly, this fact constitutes a supervening event, warranting the modification of the decision of this Court since it is now beyond the capability of the Commissioner of Customs to release the subject shipment to petitioner in compliance with the decree in Our decision. We, therefore, modify the decision of this Court dated November 4, 1996, in order to harmonize the disposition with the prevailing circumstances, and order instead, the respondent to pay the petitioner the value of the subject shipment. The execution shall not be directly against the government, but against the items or properties which have been seized or forfeited by the government. That means, the payment shall be taken from the proceeds of the sale or sales of such seized or forfeited articles (Provincial Government of Sorsogon vs. Vda. De Villaroya, 153 SCRA 291) . The doctrine of state immunity cannot be relied upon by the respondent to escape liability. For it is glaringly evident that the goods were lost while in its custody to the great detriment of herein petitioner. In the case of Mison vs. Commission on Audit (187 SCRA 445) , the Supreme Court upheld the decision of the Commissioner who ordered the Bureau of Customs to pay a vessel owner the value of the vessel which had been taken under illegal custody by the Bureau and sank while under its custody. Moreover, no less than the Constitution mandates that all public officers and employees should serve with responsibility, integrity and efficiency. Were it not for the negligence of the Bureau's officers and employees, the goods would still be in its warehouse. As admitted by the officers of BOC, they were not able to find the subject shipment in their warehouse. Worse, they cannot even trace what happened to the subject shipment through papers because there were no transition records involving the same. As it is, the subject shipment mysteriously vanished under the very nose of the responsible government agency, which is supposed to be its committed custodian. Such gross and unacceptable negligence should not and must not be countenanced. HCIaDT Relevantly, in the case of EPG Construction Co. vs. Vigilar (354 SCRA 566) , the Supreme Court disregarded the doctrine of state immunity and held the State liable, thus: "Thus, in Amigable vs. Cuenca , this Court, in effect, shred the protective shroud which shields the State from suit, reiterating our decree in the landmark case of Ministerio vs. CFI of Cebu that 'the doctrine of governmental immunity from suit cannot serve as an instrument for perpetrating an injustice on a citizen.' It is just as important, if not more so, that there be fidelity to legal norms on the part of officialdom if the rule of law were to be maintained. Although the Amigable and Ministerio cases generously tackled the issue of the State's immunity from suit vis a vis the payment of just compensation for expropriated property, this Court nonetheless finds the doctrine enunciated in the aforementioned cases applicable to the instant controversy, considering that the ends of justice would be subverted if we were to uphold, in this particular instance, the State's immunity from suit. To be sure, this Court as the staunch guardian of the citizen's rights and welfare cannot sanction an injustice so patent on its face, and allow itself to be an instrument in the perpetration thereof. Justice and equity sternly demand that the State's cloak of invincibility against suit be shred in this particular instance, and that petitioners-contractors be duly compensated on the basis of quantum meruit for construction done on the public works housing project." SIHCDA Considering that the shipment were admittedly lost while in the custody and possession of the BOC, respondent Commissioner of Customs is liable to compensate petitioner of its lost shipment by paying the subject shipment's value in accordance with Article 2159 of the New Civil Code , to wit: "ART. 2159. Whoever in bad faith accepts an undue payment, shall pay legal interest if a sum of money is involved, or shall be liable for fruits received or which shall have been received if the thing produces fruits. He shall furthermore be answerable for any loss or impairment of the thing from any cause, and for damages to the person who delivered the thing, until it is recovered." Verily, this gave rise to a foreign currency incurred obligation since BOC's obligation to return the value of the subject shipment is payable in foreign currency. DEICHc We shall now determine how much should respondent pay or indemnify petitioner. In its "Memorandum (In Support of Petitioner's Motion for Reconsideration Dated 17 November 2003)" filed with this Court on March 5, 2004, petitioner is claiming indemnity for its lost shipment of bales of textile grey cloth, under Bill of Lading No. HKT-138899, a replacement value of P27,767,160.58, applying as basis for computation the Memorandum dated May 6, 2003 of Deputy Commissioner of Customs, Atty. Gil A. Valera. Said memorandum recommended the payment to petitioner of the value of its lost shipment in the sum of P27,767,160.58. Other than said memorandum, no evidence was presented by the petitioner to support said amount of P27,767,160.58 being claimed. On the other hand, in its "Supplement/Amendment to Memorandum dated March 4, 2004" filed on March 9, 2004 with this Court, petitioner is claiming indemnity for its lost shipment a replacement value of P52,936,078.78 as of March 30, 2004, applying as basis for computation the conversion rate prevailing at the time of payment at P56.234 per US$1.00 (exchange rate as of March 5, 2004) multiplied by P365,716.24, allegedly the total dutiable value of shipment, and further multiplied by ten percent (10%) for other charges, or for a total landed cost of P22,622,255.89 exclusive of one percent (1%) interest per month commencing from January 22, 1993 up to March 2004 [a period of eleven (11) years and two (2) months], invoking the cases of Phoenix Assurance Company vs. Macondray & Co., Inc. (64 SCRA 16) and Zagala vs. Jimenez (152 SCRA 147) . On the other hand, respondent asserts that based on the Memorandum dated August 27, 2002 of Customs Operations Officers (COOs) Reynaldo Y. Luz Roque, Alexander C. Montemayor and Norma B. Gutierrez, the true value of petitioner's subject shipment, with Import Advice Note (IAN) No. 18.012.37679, is US$160,340.08 based on the commercial invoices, packing list, and the Clean Report of Findings (CRF) of the Correspondents of Societe Generale de Surveillance (SGS) S.A. dated December 9, 1992 (Exhibit "E") . In said Memorandum dated August 27, 2002, the said Customs Operations Officers found that the commercial invoice value of subject shipment of US$429,289.09 submitted by Mr. Wilson Kho, President of petitioner, to be spurious and fake. Thus, said Memorandum, in pertinent part, reads: SCDaET "Query No. 2 As per documents submitted by Mr. Wilson Kho of AGFHA, Inc., the commercial invoice value of the shipment indicated thereon is $248,289.09, while as to its declaration in its packing list states that the same comprises of 197 bales of Textile Grey Cloth with a net weight of 241,155.75 meters. As per certified copy of SGS CRF IAN No. 18.012.37679 issued by the Court of Tax Appeals marked as Exhibit E-1 of the record of the case, it appears that the value of the shipment at the time of its importation is US$160,340.08. It appears that the xerox copy of the commercial invoice submitted by Mr. Wilson Kho is spurious and/or fake. Petitioner's claims are without merit for the following reasons: 1) In paragraph 1 (Statement of the Case) of the Petition for Review filed on October 5, 1995, petitioner alleged that the subject shipment has an approved value per Clean Report of Findings (CRF) of US$160,348.08. Thus, paragraph 1 (Statement of the Case) of the petition reads: HCISED "1. The case before the Collector of Customs was a seizure and forfeiture proceedings instituted against the subject shipment with an appraised value per Clear Report of Findings (CRF) at US$160,348.08 . . .;" 2) Petitioner formally offered in evidence Exhibit "C", which is the letter of Mr. Wilson Kho, President of Agfha, Inc., addressed to Atty. Buenaventura Maniego, District Collector of Customs, MICP, North Harbor, Manila, wherein the petitioner has manifested its intention and willingness to pay the corresponding duties and taxes on the subject shipment based on a higher valuation at US$160,348.08 indicated in the Clean Report of Findings (CRF) as recommended by the SGS, as against the lower valuation of US$132,547.65 indicated in the invoice. Said letter, in pertinent part, reads: "ATTY. BUENAVENTURA MANIEGO District Collector of Customs Manila International Container Port North Harbor, Manila Sir: xxx xxx xxx Based on the Clean Report Findings the consignee is really AGFHA, INC. We are willing to pay the corresponding duties and taxes even the value was upgraded from the invoice value of US$132,547.65 to the dutiable value based on CRF at US$160,348.08 with duties and taxes of P1,746,928.00. In addition to the taxes we have been incurring the demurrage and storage charges unnecessarily due to the long delay of the said approval of the amendment. HcTDSA xxx xxx xxx Very truly yours, (SGD.) WILSON KHO WILSON KHO President" (Exhibit "C") 3) As found by the Collector of Customs of the MICP, in his Memorandum dated August 27, 2002, the commercial invoice submitted by petitioner in connection with its request for restitution by substitution indicates a shipment valuation of US$420,209.09. However, the evidence it formally offered which is marked as Exhibit "E", as proof of valuation of the shipment, is only US$160,348.08. 4) From the records, it clearly appears that petitioner is claiming different amounts of the commercial value of its lost shipment, which contradict each other, and without any concrete evidence to support said amounts. 5) Petitioner also claimed the amount of P27,767,160.58 as the value of its lost shipment on the basis of the Memorandum dated May 6, 2003 of Deputy Commissioner of Customs, Atty. Gil A. Valera. Said memorandum recommended the payment to petitioner of the value of its lost shipment in the sum of P27,767,160.58. Petitioner contends that the Bureau of Customs' own inter-office memoranda recommending the P27,767,160.58 indemnity is an admission against the BOC, and hence, an evidence of the highest degree against the BOC. Petitioner, thus, adopted the figures on the recommendation, but changed the dollar to peso conversion rate from P25.451 to US$1.00 used by the Deputy Commissioner to P56.34 per US$1.00. However, other than the said memorandum, no evidence was presented by the petitioner to support said amount of P27,767,160.58. DcaCSE In fact, as the records show, said Memorandum of Deputy Commissioner of Customs, Atty. Gil A. Valera, was disapproved by respondent Commissioner of Customs, as shown in respondent's "Explanation (With Motion for Clarification dated August 11, 2003)". 6) On the other hand, respondent asserts that the true value of petitioner's shipment is US$160,348.08, based on its commercial invoices, packing list and the Clean Report of Findings (CRF) of the Correspondents of Societe Generale de Surveillance (SGS) dated December 9, 1992 (Exhibit "E") , the entity contracted by the Philippine Government to conduct inspection of articles imported into the Philippines prior to shipment, and to report the actual price/home consumption value in accordance with the criteria set forth in paragraph 1 of Section 201 of the Tariff and Customs Code of the Philippines (hereafter "TCCP") . In this regard, Section 201 of the TCCP, as amended by E.O. No. 156 , provides: " Basic Dutiable Value. The dutiable value of an imported article subject to an ad valorem rate of duty shall be based on the cost (fair market value) of same, like or similar articles, as bought and sold or offered for sale freely in the usual wholesale quantities in the ordinary course of trade in the principal markets of the exporting country on the date of exportation to the Philippines (excluding internal excise taxes to be remitted or rebated) or where there is none on such date, then on the cost (fair market value) nearest to the date of exportation, including the value of all containers, coverings and/or packings of any kind and all other expenses, costs and charges incident to placing the article in a condition ready for shipment to the Philippines, and freight as well as insurance premiums covering the transportation of such articles to the port of entry in the Philippines. CDHcaS Where the fair market value or price of the article cannot be ascertained thereat or where there exists a reasonable doubt as to the fairness of such value or price, then the fair market value or price in the principal market in the country of manufacturer or origin, if it is not the country of exportation, or in a third country with the same stage of economic development as the country of exportation shall be used. When the dutiable value of the article cannot be ascertained in accordance with the preceding paragraphs or where there exists a reasonable doubt as to the cost (fair market value) of the imported article declared in the entry, the correct dutiable value of the article shall be ascertained by the Commissioner of Customs from the reports of the Revenue or Commercial Attach (Foreign Trade Promotion Attach), pursuant to Republic Act Numbered Fifty-Four Hundred and Sixty-Six or other Philippine diplomatic officers or Customs Attachs and from such other information that may be available to the Bureau of Customs. Such values shall be published by the Commissioner of Customs from time to time. When the dutiable value cannot be ascertained as provided in the preceding paragraphs, or where there exists a reasonable doubt as to the dutiable value of the imported article declared in the entry, it shall be the domestic wholesale selling price of such or similar article in Manila or other principal markets in the Philippines the date the duty becomes payable on the article under appraisement, on the usual wholesale quantities and in the ordinary course of trade, minus (a) not more than twenty-five (25) per cent thereof for expenses and profits; and ASHEca (b) duties and taxes paid thereon." As Section 201 indicates, the declaration in the invoice is not conclusive on the customs authorities as the latter can resort to other sources if there is reasonable doubt as to the declared value; otherwise, as held in Caltex (Philippines), Inc. vs. Court of Appeals, 292 SCRA 273, 284-285 (1998) , "Our customs laws [would] be at the mercy of importers who may avail of schemes and other arrangements to lower and reduce the face value of the articles covered by such invoices." Under the above facts and circumstances, it can be said, therefore, that valuations made by SGS are fair and reliable, such that the amount adjudged by respondent as the true value of the subject shipment based on the CRF SGS value, amounting to US$160,348.08 is correct (Nestle Philippines vs. Court of Tax Appeals, Commissioner of Customs, Commissioner of Internal Revenue, G.R. No. 151120, March 18, 2002) . A perusal of the CRF SGS shows that the amount of US160,348.08 includes already the following: 1) $155,918.04 Fair market value 2) 2,200.00 Freight 3) 2,230.04 Dutiable Charges Total $160,348.08 (Exhibit "E") ========== As regards the conversion rate to be used, the petitioner has basis in applying the conversion rate at the time of payment. In Zagala vs. Jimenez, 152 SCRA 147 , the Supreme Court held that a judgment awarding an amount in US dollars may be paid with its equivalent amount in local currency based on the conversion rate prevailing at the time of payment. Therefore, respondent is liable to pay petitioner the amount of US$160,348.08 to be converted at the peso-dollar exchange rate prevailing at the time of payment. ESCacI However, there is no factual or legal basis for respondent's claim for taxes and duties in the total amount of P1,748,044.07 that should be deducted from the value of the shipment lost, because the subject shipment was lost while under custodia legis arising from the Commissioner's seizure of the same, and has not been delivered to or withdrawn by petitioner. It would be unfair and unjust to impose taxes and duties upon goods not released and more so, lost by no less than the BOC. Furthermore, considering that the BOC was grossly negligent in handling the subject shipment, the petitioner is entitled to legal interest. Accordingly, the actual damages to be awarded shall be subject to 6% interest per annum. A review of the records reveals that sometime in February 1993, petitioner filed with the Collector of Customs a "Motion for Intervention" praying for the release of the subject shipment to petitioner as the lawful owner and actual consignee of the same, and on March 2, 1993, the District Collector of Customs granted the aforesaid motion. To be sure, said filing constitutes judicial demand for the return of the subject shipment. Hence, the six (6%) percent legal interest should be reckoned from said date, February, 1993. Finally, petitioner is entitled to 12% interest per annum in lieu of the 6% per annum from the time this Resolution becomes final and executory until fully paid. It bears to stress that this Court's Original Decision dated November 4, 1996 merely ordered for the immediate release of the subject shipment of goods in favor of the petitioner. Nowhere in the said Decision did this Court award any sum of money where the twelve (12%) percent legal interest can be based. It is only in this Resolution did We award actual damages covering the value of the subject shipment. Hence, consistent with the Supreme Court's ruling in Eastern Shipping Lines, Inc. vs. C.A., 234 SCRA 97 , when the judgment of the court awarding a sum of money becomes final and executory, petitioner is entitled to 12% interest per annum from such finality until its satisfaction, this interim period being deemed to be equivalent to a forbearance of credit. WHEREFORE , premises considered, the Bureau of Customs is adjudged liable to petitioner AGFHA, INC. for the value of the subject shipment in the amount of ONE HUNDRED SIXTY THOUSAND THREE HUNDRED FORTY EIGHT AND 08/100 US DOLLARS (US$160,348.08). The Bureau of Custom's liability may be paid in Philippine Currency, computed at the exchange rate prevailing at the time of actual payment, with legal interests thereon at the rate of 6% per annum computed from February 1993 up to the finality of this Resolution. In lieu of the 6% interest, the rate of legal interest shall be 12% per annum upon finality of this Resolution until the value of the subject shipment is fully paid. CAaDSI The payment shall be taken from the sale or sales of the goods or properties which were seized or forfeited by the Bureau of Customs in other cases. SO ORDERED. (SGD.) OLGA PALANCA-ENRIQUEZ Associate Justice Erlinda P. Uy, J., concurs. Juanito C. Castaeda, Jr., J., is on leave.