G.R. No.

141297 October 8, 2001

DOMINGO R. MANALO, petitioner,

vs.
COURT OF APPEALS (Special Twelfth Division) and PAIC SAVINGS AND MORTGAGE
BANK, respondents.

PUNO, J.:

This petition for certiorari seeks the review of the Decision of the Court of Appeals in C.A.-G.R. SP. No. 50341
promulgated December 23, 1999, which affirmed an Order issued by the Regional Trial Court, Branch 112,
Pasay City, in Civil Case No. 9011 dated December 9, 1998.

On July 19, 1983, S. Villanueva Enterprises, represented by its president, Therese Villanueva Vargas, obtained
a loan of three million pesos (P3,000,000.00) and one million pesos (P1,000,000.00) from the respondent PAIC
Savings and Mortgage Bank and the Philippine American Investments Corporation (PAIC), respectively. To
secure payment of both debts, Vargas executed in favor of the respondent and PAIC a Joint First
Mortgage1 over two parcels of land registered under her name. One of the lots, located in Pasay City with an
area of nine hundred nineteen square meters (919 sq. m.) and covered by TCT No. 6076, is the subject of the
present case. Section 2 of the mortgage contract states that "the properties mortgaged therein shall include all
buildings and improvements existing on the mortgaged property at the time of the execution of the mortgage
contract and thereafter."2

S. Villanueva Enterprises defaulted in paying the amortizations due. Despite repeated demands from the
respondent, it failed to settle its loan obligation. Accordingly, respondent instituted extrajudicial foreclosure
proceedings over the mortgaged lots. On August 22, 1984, the Pasay City property was sold at a public auction
to the respondent itself, after tendering the highest bid. The respondent then caused the annotation of the
corresponding Sheriff's Certificate of Sale3 on the title of the land on December 4, 1984. After the lapse of one
year, or the statutory period extended by law to a mortgagor to exercise his/her right of redemption, title was
consolidated in respondent's name for failure of Vargas to redeem.

On October 29, 1986, the Central Bank of the Philippines filed a Petition 4 for assistance in the liquidation of the
respondent with the Regional Trial Court. The petition was given due course in an Order 5 dated May 19, 1987.

It appears that from the years 1986 to 1991, Vargas negotiated with the respondent (through its then liquidator,
the Central Bank) for the repurchase of the foreclosed property. The negotiations, however, fizzled out as
Vargas cannot afford the repurchase price fixed by the respondent based on the appraised value of the land at
that time. On October 4, 1991, Vargas filed a case for annulment of mortgage and extrajudicial foreclosure sale
before Branch 116 of the Pasay City Regional Trial Court. On July 22, 1993, the court rendered a
decision6 dismissing the complaint and upholding the validity of the mortgage and foreclosure sale. On appeal,
the appellate court upheld the assailed judgment and declared the said mortgage and foreclosure proceedings
to be in accord with law.7 This decision of the Court of Appeals subsequently became final and executory when
we summarily dismissed Vargas' Petition for Review on Certiorari for having been filed beyond the
reglementary period.8

In the meantime, on June 22, 1992, respondent petitioned the Regional Trial Court, Branch 112, of Pasay City,
herein court a quo, for the issuance of a writ of possession for the subject property in Civil Case No. 9011. This
is in view of the consolidation of its ownership over the same as mentioned earlier. Vargas and S. Villanueva
Enterprises, Inc. filed their opposition thereto. After which, trial ensued.
During the pendency of Civil Case No. 9011 (for the issuance of a writ of possession), Vargas, on December
23, 1992, executed a Deed of Absolute Sale9 selling, transferring, and conveying ownership of the disputed lot
in favor of a certain Armando Angsico. Notwithstanding this sale, Vargas, still representing herself to be the
lawful owner of the property, leased the same to petitioner Domingo R. Manalo on August 25, 1994. Pertinent
provisions of the lease agreement10 state:

"3. (a) The lease is for a period of ten year lease (sic), involving 450 square meters, a portion of the
above 919 square meter property.

x x x (d) The LESSEE has to introduce into the said 450 square meter premises improvements thereon
(sic) consisting of one story building to house a Karaoke Music Restaurant Business, which
improvements constructed thereof (sic), upon the termination of the lease contract, by said LESSEE
be surrendered in favor of the LESSOR (sic).''11

Later, on June 29, 1997, Armando Angsico, as buyer of the property, assigned his rights therein to petitioner. 12

On April 21, 1998, the court a quo granted the petition for the issuance of the Writ of Possession. 13 The writ was
subsequently issued on April 24, 1998, the pertinent portion of which reads: 14

"NOW THEREFORE you are hereby commanded that you cause oppositors THERESE VILLANUEVA
VARGAS and S. VILLANUEVA ENTERPRISES, INC. and any and all persons claiming rights or title
under them, to forthwith vacate and surrender the possession of subject premises in question known
as that parcel of land and improvements covered by TCT No. 6076 of the Registry of Deeds of Pasay
City; you are hereby further ordered to take possession and deliver to the petitioner PAIC SAVINGS
AND MORTGAGE BANK the subject parcel of land and improvements."

Shortly, on May 8, 1998, S. Villanueva Enterprises and Vargas moved for its quashal. 15 Thereafter on June 25,
1998, petitioner, on the strength of the lease contract and Deed of Assignment made in his favor, submitted a
Permission to File an Ex-parte Motion to Intervene.16 It bears mentioning, however, that before petitioner sought
intervention in the present case, he had separately instituted a Complaint for Mandamus, docketed as Civil
Case No. 98-0868 before another branch17 of the Pasay City RTC to compel PAIC Bank to allow him to
repurchase the subject property.

On October 7, 1998, the court a quo denied the Motion to Quash and Motion to Intervene filed respectively by
Vargas and petitioner.18 A Motion for Reconsideration and a Supplemental Motion for Reconsideration were
filed by the petitioner which, however, were similarly denied on December 9, 1998.

Petitioner then sought relief with the Court of Appeals, filing therein a Petition for Certiorari. While this was
awaiting resolution, he entered into another lease agreement, 19 this time with the respondent, represented by its
liquidator, over the same 450 sq. m. portion of the lot. The contract fixed a period of one month beginning
January 28, 1999, renewable for another month at the exclusive option of the lessor, respondent PAIC Bank.

On December 23, 1999, the appellate court rendered the impugned Decision, dismissing the petition, thus:

"All told, WE find the Order, subject of the instant Petition for Certiorari and Prohibition, to be not
without rational bases and we observe that the court a quo, in issuing its questioned Order, committed
no grave abuse of discretion amounting to lack of jurisdiction.

WHEREFORE, the Petition for Certiorari and Prohibition is hereby DISMISSED and the assailed
December 9, 1998 Order is AFFIRMED in all respects.
 SO ORDERED."20

Hence, this appeal, where petitioner raises and argues the following legal issues:

"I. Whether or not public respondent acted without or in excess of its jurisdiction and/or was patently in
error when it affirmed the denial of petitioner's motion for intervention, despite the fact that he has a
legal interest, being a lessee and an assignee of the property subject matter of this case.

II. Whether or not the public respondent committed grave abuse of discretion when it held that what
are required to be instituted before the liquidation court are those claims against the insolvent banks
only considering that the private respondent bank is legally dead due to insolvency and considering
further that there is already a liquidation court (Regional Trial Court of Makati, Branch 57, docketed as
Spec. Pro. No. M-1280) which is exclusively vested with jurisdiction to hear all matters and incidents
on liquidation pursuant to Section 29, Republic Act No. 265, otherwise known as The Central Bank Act,
as amended.

III. Whether or not the public respondent committed grave abuse of discretion and/or was patently in
error in affirming the ruling of the trial court, totally disregarding the arguments raised in petitioner's
supplemental motion for reconsideration only through a minute order and without taking into
consideration the fact that there is a pending action in another court (RTC, Pasay City, Branch 231 )
which presents a prejudicial question to the case at bar.

IV. Whether or not the petitioner is estopped from questioning private respondent's ownership when it
entered into a contract of lease involving the property in question." 21

We will first resolve the jurisdictional and procedural questions raised by the petitioner.

I.

Petitioner postulates that the lower court should have dismissed respondent's "Ex-Parte Petition for Issuance of
Writ of Possession" in Civil Case No. P-9011 for want of jurisdiction over the subject matter of the claim. The
power to hear the same, he insists, exclusively vests with the Liquidation Court pursuant to Section 29 of
Republic Act No. 265, otherwise known as The Central Bank Act.22 He then cites our decision in Valenzuela v.
Court of Appeals,23where we held that "if there is a judicial liquidation of an insolvent bank, all claims against
the bank should be filed in the liquidation proceeding." For going to another court, the respondent, he accuses,
is guilty of forum shopping.

These contentions can not pass judicial muster. The pertinent portion of Section 29 states:

"x x x The liquidator designated as hereunder provided shall, by the Solicitor General, file a petition in
the Regional Trial Court reciting the proceedings which have been taken and praying the assistance of
the court in the liquidation of such institution. The court shall have jurisdiction in the same proceedings
to assist in the adjudication of disputed claims against the bank or non-bank financial intermediary
performing quasi-banking functions and the enforcement of individual liabilities of the stockholders and
do all that is necessary to preserve the assets of such institution and to implement the liquidation plan
approved by the Monetary Board, x x x"24 (emphasis supplied.)

Petitioner apparently failed to appreciate the correct meaning and import of the above-quoted law. The legal
provision only finds operation in cases where there are claims against an insolvent bank. In fine, the exclusive
jurisdiction of the liquidation court pertains only to the adjudication of claims against the bank. It does not cover
the reverse situation where it is the bank which files a claim against another person or legal entity.

This interpretation of Section 29 becomes more obvious in the light of its intent. The requirement that all claims
against the bank be pursued in the liquidation proceedings filed by the Central Bank is intended to prevent
multiplicity of actions against the insolvent bank and designed to establish due process and orderliness in the
liquidation of the bank, to obviate the proliferation of litigations and to avoid injustice and arbitrariness. 25 The
lawmaking body contemplated that for convenience, only one court, if possible, should pass upon the claims
against the insolvent bank and that the liquidation court should assist the Superintendents of Banks and
regulate his operations.26

It then ought to follow that petitioner's reliance on Section 29 and the Valenzuela case is misplaced. The
Petition for the Issuance of a Writ of Possession in Civil Case No. 9011 is not in the nature of a disputed claim
against the bank. On the contrary, it is an action instituted by the respondent bank itself for the preservation of
its asset and protection of its property. It was filed upon the instance of the respondent's liquidator in order to
take possession of a tract of land over which it has ownership claims.

To be sure, the liquidator took the proper course of action when it applied for a writ in the Pasay City RTC. Act
3135,27 entitled An Act to Regulate the Sale of Property Under Special Powers Inserted In or Annexed To Real
Estate Mortgages, mandates that jurisdiction over a Petition for Writ of Possession lies with the court of the
province, city, or municipality where the property subject thereof is situated. This is sanctioned by Section 7 of
the said Act, thus:

"SECTION 7. In any sale made under the provisions of this Act, the purchaser may petition the Court
of First Instance of the province or place where the property or any part thereof is situated, to give him
possession thereof during the redemption period, furnishing bond in an amount equivalent to the use
of the property for a period of twelve months, to indemnify the debtor in case it be shown that the sale
was made without violating the mortgage or without complying with the requirements of this Act x x
x"28 (emphasis supplied)

Since the land subject of this controversy is located in Pasay City, then the city's RTC should rightly take
cognizance of the case, to the exclusion of other courts.

Anent petitioner's auxiliary contention that respondent should be held guilty of forum shopping for not filing the
case in the liquidation court, suffice it to state here that the doctrine only ponders situations where two (or
more) cases are pending before different tribunals.29 Well to point, we have laid down the yardstick to determine
whether a party violated the rule against forum shopping as where the elements of litis pendentia are present or
where a final judgment in one case will amount to res judicata in the other.30 Inasmuch as the case at bar is the
only one filed by the respondent for the issuance of a writ of possession over the subject property, there is no
occasion for the doctrine to apply.

Petitioner next casts doubt on the capacity of the respondent to continue litigating the petition for the issuance
of the writ. He asserts that, being under liquidation, respondent bank is already a "dead" corporation that
cannot maintain the suit in the RTC. Hence, no writ may be issued in its favor.

The argument is devoid of merit. A bank which had been ordered closed by the monetary board retains its
juridical personality which can sue and be sued through its liquidator. The only limitation being that the
prosecution or defense of the action must be done through the liquidator.31 Otherwise, no suit for or against an
insolvent entity would prosper. In such situation, banks in liquidation would lose what justly belongs to them
through a mere technicality.32
 That the law allows a bank under liquidation to participate in an action can be clearly inferred from the
third paragraph of the same Section 29 of The Central Bank Act earlier quoted, which authorizes or
empowers a liquidator to institute actions, thus: "x x x and he (liquidator) may in the name of the bank
or non-bank financial intermediary performing quasi-banking functions and with the assistance of
counsel as he may retain, institute such actions as may be necessary in the appropriate court to
collect and recover accounts and assets of such institution or defend any action filed against the
institution."33 (emphasis supplied.)

It is therefore beyond dispute that respondent was legally capacitated to petition the court a quo for the
issuance of the writ.

II.

Petitioner likewise proffers one other procedural obstacle, which is the pendency of Civil Case No. 98-0868 in
Branch 231 of Pasay City RTC. The said action is the complaint he filed against the respondent for the latter to
receive and accept the redemption price of eighteen million pesos for the subject property. He argues that the
primary issue therein constitutes a prejudicial question in relation to the present case in that if the Court therein
will grant petitioner's prayer, then this will necessarily negate the possessory writ issued by the court a quo.

Again, we are not persuaded. A prejudicial question is one which arises in a case the resolution of which is a
logical antecedent of the issue involved therein, and the cognizance of which pertains to another tribunal. 34 It
generally comes into play in a situation where a civil action and a criminal action are both pending and there
exists in the former an issue which must be preemptively resolved before the criminal action may proceed,
because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the
guilt or innocence of the accused in the criminal case. The rationale behind the principle of prejudicial question
is to avoid two conflicting decisions.35

Here, aside from the fact that Civil Case No. 98-0868 and the present one are both civil in nature and therefore
no prejudicial question can arise from the existence of the two actions, 36 it is apparent that the former action
was instituted merely to frustrate the Court's ruling in the case at bar granting the respondent the right to
possess the subject property. It is but a canny and preemptive maneuver on the part of the petitioner to delay, if
not prevent, the execution of a judgment adverse to his interests. It bears stressing that the complaint for
mandamus was filed only on May 7, 1998, sixteen days after the lower court granted respondent's petition and
thirteen days after it issued the writ. It cannot then possibly prejudice a decided case.

At any rate, it taxes our imagination why the questions raised in Case No. 98-0868 must be considered
determinative of Case No. 9011. The basic issue in the former is whether the respondent, as the purchaser in
the extra-judicial foreclosure proceedings, may be compelled to have the property repurchased or resold to a
mortgagor's successor-in-interest (petitioner): while that in the latter is merely whether the respondent, as the
purchaser in the extrajudicial foreclosure proceedings, is entitled to a writ of possession after the statutory
period for redemption has expired. The two cases, assuming both are pending, can proceed separately and
take their own direction independent of each other.

III.

Having disposed of the jurisdictional and procedural issues, we now come to the merits of the case. Petitioner
seeks intervention in this case by virtue of the lease agreement and the deed of assignment executed in his
favor by the mortgagor (Vargas) and an alleged buyer (Angsico) of the land, respectively. He posits that as a
lessee and assignee in possession of the foreclosed real estate, he automatically acquires interest over the
subject matter of the litigation. This interest is coupled with the fact that he introduced improvements thereon,
consisting of a one-storey building which houses a karaoke-music restaurant, allegedly to the tune of fifteen
million pesos (P15,000,000.00). Enforcing the writ, he adds, without hearing his side would be an injustice to
him.

Intervention is a remedy by which a third party, not originally impleaded in the proceeding, becomes a litigant
therein to enable him to protect or preserve a right or interest which may be affected by such proceeding. 37 The
pertinent provision is stated in Section 1, Rule 19 of the 1997 Rules of Civil Procedure, thus:

"SECTION 1. Who may intervene. A person who has a legal interest in the matter in litigation, or in
the success of either of the parties, or an interest against both, or is so situated as to be adversely
affected by a distribution or other disposition of property in the custody of the court or of an officer
thereof may, with leave of court, be allowed to intervene in the action. The court shall consider whether
or not the intervention will unduly delay or prejudice the adjudication of the rights of the original parties,
and whether or not the intervenor's rights may be fully protected in a separate proceeding." 38

Intervention is not a matter of right but may be permitted by the courts only when the statutory conditions for
the right to intervene is shown.39 Thus, the allowance or disallowance of a motion to intervene is addressed to
the sound discretion of the court.40 In determining the propriety of letting a party intervene in a case, the tribunal
should not limit itself to inquiring whether "a person (1) has a legal interest in the matter in litigation; (2) or in the
success of either of the parties; (3) or an interest against both; (4) or when is so situated as to be adversely
affected by a distribution or other disposition of property in the custody of the court or of an officer
thereof."41 Just as important, as we have stated in Big Country Ranch Corporation v. Court of Appeals,42 is the
function to consider whether or not the intervention will unduly delay or prejudice the adjudication of the rights
of the original parties, and whether or not the intervenor's rights may be fully protected in a separate
proceeding.

The period within which a person may intervene is also restricted. Section 2, Rule 19 of the 1997 Rules of Civil
Procedure requires:

"SECTION 2. Time to intervene. The motion to intervene may be filed at any time before the
rendition of judgment by the trial court, x x x"

After the lapse of this period, it will not be warranted anymore. This is because, basically, intervention is not an
independent action but is ancillary and supplemental to an existing litigation. 43

Taking into account these fundamental precepts, we rule that the petitioner may not properly intervene in the
case at bar. His insistence to participate in the proceeding is an unfortunate case of too little, too late.

In the first place, petitioner's Ex-parte Permission to File a Motion to Intervene was submitted to the RTC only
on June 25, 1998. At that stage, the lower court had already granted respondent's petition for the writ in an
Order dated April 21, 1998. It had issued the Writ of Possession on April 24, 1998. Petitioner's motion then was
clearly out of time, having been filed only at the execution stage. For that reason alone, it must meet the
consequence of denial. While it is true that on May 8, 1998, Vargas and S. Villanueva Enterprises moved to
quash the writ, that did not in any way affect the nature of the RTC's Order as an adjudication on the merits.
The issuance of the Order is in essence a rendition of judgment within the purview of Section 2, Rule 19.

Allowing petitioner to intervene, furthermore, will serve no other purpose but to unduly delay the execution of
the writ, to the prejudice of the respondent. This cannot be countenanced considering that after the
consolidation of title in the buyer's name, for failure of the mortgagor to redeem, the writ of possession
becomes a matter of right.44 Its issuance to a purchaser in an extrajudicial foreclosure is merely a ministerial
function.45 As such, the court neither exercises its official discretion nor judgment. 46 If only to stress the writ's
ministerial character, we have, in previous cases, disallowed injunction to prohibit its issuance, 47 just as we
have held that issuance of the same may not be stayed by a pending action for annulment of mortgage or the
foreclosure itself.48

Even if he anchors his intervention on the purported interest he has over the land and the improvements
thereon, petitioner, still, should not be allowed to do so. He admits that he is a mere lessee and assignee.
Whatever possessory rights he holds only emanate from that of Vargas, from whom he leased the lot, and from
whom his assignor/predecessor-in-interest bought it. Therein lies the precariousness of his title. Petitioner
cannot validly predicate his supposed interest over the property in litigation on that of Vargas, for the simple
reason that as early as December 4, 1985, the latter has already been stripped of all her rights over the land
when she, as mortgagor, failed to redeem it. A mortgagor has only one year within which to redeem her
foreclosed real estate.49 After that period, she loses all her interests over it. This is in consonance with Section
78 of the General Banking Act, 50 viz.:

"x x x In the event of foreclosure, whether judicially or extrajudicially, of any mortgage on real estate
which is security for any loan granted before the passage of this Act or the provisions of this Act, the
mortgagor or debtor whose real property has been sold at public auction, judicially or extrajudicially, for
the full or partial payment of an obligation to any bank, banking or credit institution, within the purview
of this Act shall have the right, within one year after the sale of the real estate mortgage as a result of
the foreclosure of the respective mortgage, to redeem the property by paying the amount fixed by the
court in the order or execution x x x"51(emphasis supplied.)

Being herself bereft of valid title and rights, Vargas can not legitimately convey any to some other person. She
could not have lawfully sold the land to Angsico nor leased it to petitioner for her own account. It is axiomatic
that one can not transmit what one does not have. 52 It ought to follow that petitioner could not have acquired
any right or interest from Vargas.

Withal, all is not lost for the petitioner. He can still fully protect his rights in Civil Case No. 98-0868 or the
complaint for mandamus he filed before Branch 231 of the Pasay City RTC. There, he can ventilate his side to
a fuller extent as that would be the more appropriate venue for elucidating whatever legal basis he alleges in
compelling the respondent to sell to him the currently disputed land.

IV.

This brings us to petitioner's final point. He briefly asserts that his act of entering into a lease contract with the
respondent should not affect his right to redeem the subject property.

The possible legal implication of the lease on the petitioner's act of trying to redeem the disputed lot is a
question which, in our opinion, can best be resolved in the mandamus complaint. Whether the agreement must
be construed as a waiver on his part of exercising his purported right of redemption is an issue best left for the
court therein to decide. Whether by acknowledging the legality of the respondent's claim and title over the land
at the time of the execution of the contract, he likewise perpetually barred himself from redeeming the same is
a matter which can be addressed most aptly in that pending action. Hence, there is presently no need for us to
squarely rule on this ultimate point.

IN VIEW WHEREOF, finding no cogent reason to disturb the assailed Decision, the instant petition is hereby
DENIED.

SO ORDERED.
ARTHUR TE, petitioner, vs. COURT OF APPEALS, and LILIANA
CHOA, respondents.

DECISION

KAPUNAN, J.:

Before us is a petition for review on certiorari which seeks to reverse the Decision of
the Court of Appeals Tenth Division, dated 31 August 1994 in CA-G.R. SP No.
23971 and CA-G.R. SP No. 26178 and the Resolution dated October 18, 1996
[1] [2]

denying petitioners motion for reconsideration.

The facts of the case are as follows:

Petitioner Arthur Te and private respondent Liliana Choa were married in civil rites
on September 14, 1988. They did not live together after the marriage although they
would meet each other regularly. Not long after private respondent gave birth to a girl on
April 21, 1989, petitioner stopped visiting her.
[3]

On May 20, 1990, while his marriage with private respondent was subsisting,
petitioner contracted a second marriage with a certain Julieta Santella (Santella). [4]

On the basis of a complaint-affidavit filed by private respondent sometime in June

1990, when she learned about petitioners marriage to Santella, an information charging
petitioner with bigamy was filed with the Regional Trial Court (RTC) of Quezon City on
August 9, 1990. This case was docketed as Criminal Case No. Q-90-14409.
[5] [6]

Meanwhile, on July 20, 1990, petitioner filed in the RTC of Quezon City an action for
the annulment of his marriage to private respondent on the ground that he was forced to
marry her.He alleged that private respondent concealed her pregnancy by another man
at the time of their marriage and that she was psychologically incapacitated to perform
her essential marital obligations.
[7]

On November 8, 1990, private respondent also filed with the Professional

Regulation Commission (PRC) an administrative case against petitioner and Santella
for the revocation of their respective engineering licenses on the ground that they
committed acts of immorality by living together and subsequently marrying each other
despite their knowledge that at the time of their marriage, petitioner was already married
to private respondent. With respect to petitioner, private respondent added that he
committed an act of falsification by stating in his marriage contract with Santella that he
was still single.
[8]

After the prosecution rested its case in the criminal case for bigamy, petitioner
filed a demurrer to evidence with leave of court and motion to inhibit the trial court judge
for showing antagonism and animosity towards petitioners counsel during the hearings
of said case.

The trial court denied petitioners demurrer to evidence in an Order dated November
28, 1990 which stated that the same could not be granted because the prosecution had
sufficiently established a prima facie case against the accused. The RTC also denied
[9]

petitioners motion to inhibit for lack of legal basis.

[10]

Petitioner then filed with the Court of Appeals a petition for certiorari, alleging grave
abuse of discretion on the part of the trial court judge, Judge Cezar C. Peralejo, for (1)
exhibiting antagonism and animosity towards petitioners counsel; (2) violating the
requirements of due process by denying petitioners [motion for reconsideration and]
demurrer to evidence even before the filing of the same; (3) disregarding and failing to
comply with the appropriate guidelines for judges promulgated by the Supreme Court;
and (4) ruling that in a criminal case only prima facie evidence is sufficient for conviction
of an accused. This case was docketed as CA-G.R. SP No. 23971. [11]

Petitioner also filed with the Board of Civil Engineering of the PRC (PRC Board),
where the administrative case for the revocation of his engineering license was pending,
a motion to suspend the proceedings therein in view of the pendency of the civil case
for annulment of his marriage to private respondent and criminal case for bigamy in
Branches 106 and 98, respectively of the RTC of Quezon City. When the Board denied
[12]

the said motion in its Order dated July 16, 1991, petitioner filed with the Court of
[13]

Appeals another petition for certiorari, contending that the Board gravely abused its
discretion in: (1) failing to hold that the resolution of the annulment case is prejudicial to
the outcome of the administrative case pending before it; (2) not holding that the
continuation of proceedings in the administrative case could render nugatory petitioners
right against self-incrimination in this criminal case for bigamy against him; and (3)
making an overly-sweeping interpretation that Section 32 of the Rules and Regulations
Governing the Regulation and Practice of Professionals does not allow the suspension
of the administrative proceeding before the PRC Board despite the pendency of criminal
and/or administrative proceedings against the same respondent involving the same set
of facts in other courts or tribunals. This petition was docketed as CA-G.R. SP No.
26178. [14]
 The two petitions for certiorari were consolidated since they arose from the same
set of facts.

On 31 August 1994, the Court of Appeals, Tenth Division, rendered the assailed
decision in the consolidated petitions. The appellate court upheld the RTCs denial of the
motion to inhibit due to petitioners failure to show any concrete evidence that the trial
court judge exhibited partiality and had prejudged the case. It also ruled that the denial
of petitioners motion to suspend the proceedings on the ground of prejudicial question
was in accord with law. The Court of Appeals likewise affirmed the RTCs denial of the
[15]

demurrer to evidence filed by petitioner for his failure to set forth persuasive grounds to
support the same, considering that the prosecution was able to adduce evidence
showing the existence of the elements of bigamy. [16]

Neither did the appellate court find grave abuse of discretion on the part of the
Boards Order denying petitioners motion to suspend proceedings in the administrative
case on the ground of prejudicial question. Respondent court held that no prejudicial
question existed since the action sought to be suspended is administrative in nature,
and the other action involved is a civil case.[17]

Petitioner thereafter filed a motion for reconsideration of the decision of the Court of
Appeals but the same was denied. [18]

Hence, petitioner filed the instant petition raising the following issues:

PUBLIC RESPONDENT COMMITTED A SERIOUS ERROR IN REFUSING

TO SUSPEND THE LEGAL [CRIMINAL AND ADMINISTRATIVE]
PROCEEDINGS DESPITE THE PENDENCY OF THE CIVIL CASE FOR
DECLARATION OF NULLITY OF MARRIAGE.

II

PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION AND

COMMITTED AN ERROR OF LAW IN NOT HOLDING THAT THE
DEMURRER TO EVIDENCE SHOULD HAVE BEEN GIVEN DUE COURSE.

III
PUBLIC RESPONDENT COMMITTED A SERIOUS LEGAL ERROR IN NOT
HOLDING THAT THE TRIAL JUDGE A QUO SHOULD HAVE INHIBITED
HIMSELF. [19]

The petition has no merit.

While the termination of Civil Case No. Q-90-6205 for annulment of petitioners
marriage to private respondent has rendered the issue of the propriety of suspending
both the criminal case for bigamy before the RTC of Quezon City, Branch 98 and the
administrative case for revocation of petitioners engineering license before the PRC
Board moot and academic, the Court shall discuss the issue of prejudicial question to
emphasize the guarding and controlling precepts and rules. [20]

A prejudicial question has been defined as one based on a fact distinct and
separate from the crime but so intimately connected with it that it determines the guilt or
innocence of the accused, and for it to suspend the criminal action, it must appear not
only that said case involves facts intimately related to those upon which the criminal
prosecution would be based but also that in the resolution of the issue or issues raised
in the civil case, the guilt or innocence of the accused would necessarily be determined.
The rationale behind the principle of suspending a criminal case in view of a
[21]

prejudicial question is to avoid two conflicting decisions.

[22]

The Court of Appeals did not err when it ruled that the pendency of the civil case for
annulment of marriage filed by petitioner against private respondent did not pose a
prejudicial question which would necessitate that the criminal case for bigamy be
suspended until said civil case is terminated.

The outcome of the civil case for annulment of petitioners marriage to private
respondent had no bearing upon the determination of petitioners innocence or guilt in
the criminal case for bigamy, because all that is required for the charge of bigamy to
prosper is that the first marriage be subsisting at the time the second marriage is
contracted. Petitioners argument that the nullity of his marriage to private respondent
[23]

had to be resolved first in the civil case before the criminal proceedings could continue,
because a declaration that their marriage was void ab initio would necessarily absolve
him from criminal liability, is untenable. The ruling in People vs. Mendoza and People
[24]

vs. Aragon cited by petitioner that no judicial decree is necessary to establish the
[25]

invalidity of a marriage which is void ab initio has been overturned. The prevailing rule is
found in Article 40 of the Family Code, which was already in effect at the time of
petitioners marriage to private respondent in September 1988. Said article states that
the absolute nullity of a previous marriage may not be invoked for purposes of
remarriage unless there is a final judgment declaring such previous marriage
void. Thus, under the law, a marriage, even one which is void or voidable, shall be
deemed valid until declared otherwise in a judicial proceeding. In Landicho vs. Relova,
[26]

we held that:
[27]

Parties to a marriage should not be permitted to judge for themselves its

nullity, for this must be submitted to the judgment of competent courts and
only when the nullity of a marriage is so declared can it be held as void, and
so long as there is no such declaration the presumption of marriage exists. [28]

It is clear from the foregoing that the pendency of the civil case for annulment of
petitioners marriage to private respondent did not give rise to a prejudicial question
which warranted the suspension of the proceedings in the criminal case for bigamy
since at the time of the alleged commission of the crime, their marriage was, under the
law, still valid and subsisting.

Neither did the filing of said civil case for annulment necessitate the suspension of
the administrative proceedings before the PRC Board. As discussed above, the concept
of prejudicial question involves a civil and a criminal case. We have previously ruled that
there is no prejudicial question where one case is administrative and the other is civil.[29]

Furthermore, Section 32 of the Rules and Regulations Governing the Regulation

and Practice of Professionals of the PRC Board expressly provides that the
administrative proceedings before it shall not be suspended notwithstanding the
existence of a criminal and/or civil case against the respondent involving the same facts
as the administrative case:

The filing or pendency of a criminal and/or civil cases in the courts or an

administrative case in another judicial body against an examinee or registered
professional involving the same facts as in the administrative case filed or to
be filed before the Board shall neither suspend nor bar the proceeding of the
latter case. The Board shall proceed independently with the investigation of
the case and shall render therein its decision without awaiting for the final
decision of the courts or quasi-judicial body.

It must also be noted that the allegations in the administrative complaint before the
PRC Board are not confined to the issue of the alleged bigamous marriage contracted
by petitioner and Santella. Petitioner is also charged with immoral conduct for continued
failure to perform his obligations as husband to private respondent and as father to their
child, and for cohabiting with Santella without the benefit of marriage. The existence of
[30]

these other charges justified the continuation of the proceedings before the PRC Board.
 Petitioner also contends that the Court of Appeals erred in upholding the trial courts
denial of his demurrer to evidence in the criminal case for bigamy, arguing that the
prosecution failed to establish the existence of both the first and second marriages
beyond reasonable doubt. Petitioner claims that the original copy of marriage contract
between him and private respondent was not presented, the signatures therein were not
properly identified and there was no showing that the requisites of a valid marriage were
complied with. He alleges further that the original copy of the marriage contract between
him and Santella was not presented, that no proof that he signed said contract was
adduced, and that there was no witness presented to show that a second marriage
ceremony participated in by him ever took place. [31]

We are not persuaded. The grant or denial of a demurrer to evidence is left to the
sound discretion of the trial court, and its ruling on the matter shall not be disturbed in
the absence of a grave abuse of such discretion. In this case, the Court of Appeals did
[32]

not find any grave abuse of discretion on the part of the trial court, which based its
denial of the demurrer on two grounds: first, the prosecution established a prima
facie case for bigamy against the petitioner; and second, petitioners allegations in the
demurrer were insufficient to justify the grant of the same. It has been held that the
appellate court will not review in a special civil action for certiorari the prosecutions
evidence and decide in advance that such evidence has or has not yet established the
guilt of the accused beyond reasonable doubt. In view of the trial courts finding that
[33]

a prima facie case against petitioner exists, his proper recourse is to adduce evidence
in his defense. [34]

The Court also finds it necessary to correct petitioners misimpression that by

denying his demurrer to evidence in view of the existence of a prima facie case against
him, the trial court was already making a pronouncement that he is liable for the offense
charged. As correctly held by the Court of Appeals, the order of the RTC denying the
demurrer was not an adjudication on the merits but merely an evaluation of the
sufficiency of the prosecutions evidence to determine whether or not a full-blown trial
would be necessary to resolve the case. The RTCs observation that there was a prima
[35]

facie case against petitioner only meant that the prosecution had presented sufficient
evidence to sustain its proposition that petitioner had committed the offense of bigamy,
and unless petitioner presents evidence to rebut the same, such would be the
conclusion. Said declaration by the RTC should not be construed as a pronouncement
[36]

of petitioners guilt. It was precisely because of such finding that the trial court denied the
demurrer, in order that petitioner may present evidence in his defense and allow said
court to resolve the case based on the evidence adduced by both parties.

Lastly, petitioner contends that his motion to inhibit Judge Peralejo in Criminal Case
No. Q-90-14409 should have been granted since said judge exhibited partiality and bias
against him in several instances. First, when petitioner manifested that he would file a
motion for reconsideration of the denial of his motion to suspend the proceedings in said
case, the judge said such motion was dilatory and would be denied even though the
motion for reconsideration had not yet been filed. Second, when petitioners counsel
manifested that he had just recovered from an accident and was not physically fit for
trial, the judge commented that counsel was merely trying to delay the case and
required said counsel to produce a medical certificate to support his statement. Third,
when petitioner manifested that he was going to file a demurrer to evidence, the judge
characterized the same as dilatory and declared that he would deny the
same.According to petitioner, the judges hostile attitude towards petitioners counsel as
shown in the foregoing instances justified the grant of his motion to inhibit.

We agree with the appellate court that the grounds raised by petitioner against
Judge Peralejo did not conclusively show that the latter was biased and had prejudged
the case. In People of the Philippines vs. Court of Appeals, this Court held that while
[37] [38]

bias and prejudice have been recognized as valid reasons for the voluntary inhibition of
a judge under Section 1, Rule 137, the rudimentary rule is that the mere suspicion that a
judge is partial is not enough. There should be clear and convincing evidence to prove
the charge of bias and partiality.
[39]

Furthermore, since the grounds raised by petitioner in his motion to inhibit are not
among those expressly mentioned in Section 1, Rule 137 of the Revised Rules of Court,
the decision to inhibit himself lay within the sound discretion of Judge Peralejo. Said
provision of law states:

Section 1. Disqualification of judges. No judge or judicial officer shall sit in any

case in which he, or his wife or child, is pecuniarily interested as heir, legatee,
creditor or otherwise, or in which he is related to either party within the sixth
degree of consanguinity or affinity, or to counsel within the fourth degree,
computed according to the rules of the civil law, or in which he has been
executor, administrator, guardian, trustee or counsel, or in which he has
presided in any inferior court when his ruling or decision is the subject of
review, without the written consent of all parties in interest, signed by them
and entered upon the record.

A judge may, in the exercise of his sound discretion, disqualify himself from
sitting in the case, for just and valid reasons other than those mentioned
above.
 Thus, it was not mandatory that the judge inhibit himself from hearing and deciding
the case.

This Court does not find any abuse of discretion by respondent judge in denying
petitioners motion to inhibit. The test for determining the propriety of the denial of said
motion is whether petitioner was deprived a fair and impartial trial. The instances when
[40]

Judge Peralejo allegedly exhibited antagonism and partiality against petitioner and/or
his counsel did not deprive him of a fair and impartial trial. As discussed earlier, the
denial by the judge of petitioners motion to suspend the criminal proceeding and the
demurrer to evidence are in accord with law and jurisprudence. Neither was there
anything unreasonable in the requirement that petitioners counsel submit a medical
certificate to support his claim that he suffered an accident which rendered him
unprepared for trial. Such requirement was evidently imposed upon petitioners counsel
to ensure that the resolution of the case was not hampered by unnecessary and
unjustified delays, in keeping with the judges duty to disposing of the courts business
promptly.[41]

WHEREFORE, the petition is hereby DENIED for lack of merit.

SO ORDERED.

IMELDA MARBELLA-BOBIS, petitioner, vs. ISAGANI D.

BOBIS, respondent.

DECISION

YNARES-SANTIAGO, J.:

On October 21, 1985, respondent contracted a first marriage with one Maria
Dulce B. Javier. Without said marriage having been annulled, nullified or
terminated, the same respondent contracted a second marriage with petitioner
Imelda Marbella-Bobis on January 25, 1996 and allegedly a third marriage
with a certain Julia Sally Hernandez. Based on petitioners complaint-affidavit,
an information for bigamy was filed against respondent on February 25, 1998,
which was docketed as Criminal Case No. Q98-75611 of the Regional Trial
Court, Branch 226, Quezon City. Sometime thereafter, respondent initiated a
civil action for the judicial declaration of absolute nullity of his first marriage on
the ground that it was celebrated without a marriage license. Respondent then
filed a motion to suspend the proceedings in the criminal case for bigamy
invoking the pending civil case for nullity of the first marriage as a prejudicial
question to the criminal case. The trial judge granted the motion to suspend
the criminal case in an Order dated December 29, 1998. Petitioner filed a [1]

motion for reconsideration, but the same was denied.

Hence, this petition for review on certiorari. Petitioner argues that respondent
should have first obtained a judicial declaration of nullity of his first marriage
before entering into the second marriage, inasmuch as the alleged prejudicial
question justifying suspension of the bigamy case is no longer a legal truism
pursuant to Article 40 of the Family Code. [2]

The issue to be resolved in this petition is whether the subsequent filing of a

civil action for declaration of nullity of a previous marriage constitutes a
prejudicial question to a criminal case for bigamy.

A prejudicial question is one which arises in a case the resolution of which is a

logical antecedent of the issue involved therein. It is a question based on a
[3]

fact distinct and separate from the crime but so intimately connected with it
that it determines the guilt or innocence of the accused. It must appear not
[4]

only that the civil case involves facts upon which the criminal action is based,
but also that the resolution of the issues raised in the civil action would
necessarily be determinative of the criminal case. Consequently, the defense
[5]

must involve an issue similar or intimately related to the same issue raised in
the criminal action and its resolution determinative of whether or not the latter
action may proceed. Its two essential elements are:
[6] [7]

(a) the civil action involves an issue similar or intimately related to

the issue raised in the criminal action; and

(b) the resolution of such issue determines whether or not the

criminal action may proceed.

A prejudicial question does not conclusively resolve the guilt or innocence of

the accused but simply tests the sufficiency of the allegations in the
information in order to sustain the further prosecution of the criminal case. A
party who raises a prejudicial question is deemed to have hypothetically
admitted that all the essential elements of a crime have been adequately
alleged in the information, considering that the prosecution has not yet
presented a single evidence on the indictment or may not yet have rested its
case. A challenge of the allegations in the information on the ground of
prejudicial question is in effect a question on the merits of the criminal charge
through a non-criminal suit.

Article 40 of the Family Code, which was effective at the time of celebration of
the second marriage, requires a prior judicial declaration of nullity of a
previous marriage before a party may remarry. The clear implication of this is
that it is not for the parties, particularly the accused, to determine the validity
or invalidity of the marriage. Whether or not the first marriage was void for
[8]

lack of a license is a matter of defense because there is still no judicial

declaration of its nullity at the time the second marriage was contracted. It
should be remembered that bigamy can successfully be prosecuted provided
all its elements concur two of which are a previous marriage and a
subsequent marriage which would have been valid had it not been for the
existence at the material time of the first marriage. [9]

In the case at bar, respondents clear intent is to obtain a judicial declaration of

nullity of his first marriage and thereafter to invoke that very same judgment to
prevent his prosecution for bigamy. He cannot have his cake and eat it too.
Otherwise, all that an adventurous bigamist has to do is to disregard Article 40
of the Family Code, contract a subsequent marriage and escape a bigamy
charge by simply claiming that the first marriage is void and that the
subsequent marriage is equally void for lack of a prior judicial declaration of
nullity of the first. A party may even enter into a marriage aware of the
absence of a requisite - usually the marriage license - and thereafter contract
a subsequent marriage without obtaining a declaration of nullity of the first on
the assumption that the first marriage is void. Such scenario would render
nugatory the provisions on bigamy. As succinctly held in Landicho v. Relova: [10]

(P)arties to a marriage should not be permitted to judge for

themselves its nullity, only competent courts having such
authority. Prior to such declaration of nullity, the validity of the first
 marriage is beyond question. A party who contracts a second
marriage then assumes the risk of being prosecuted for bigamy.

Respondent alleges that the first marriage in the case before us was void for
lack of a marriage license. Petitioner, on the other hand, argues that her
marriage to respondent was exempt from the requirement of a marriage
license. More specifically, petitioner claims that prior to their marriage, they
had already attained the age of majority and had been living together as
husband and wife for at least five years. The issue in this case is limited to
[11]

the existence of a prejudicial question, and we are not called upon to resolve
the validity of the first marriage. Be that as it may, suffice it to state that the
Civil Code, under which the first marriage was celebrated, provides that "every
intendment of law or fact leans toward the validity of marriage, the
indissolubility of the marriage bonds." Hence, parties should not be permitted
[12]

to judge for themselves the nullity of their marriage, for the same must be
submitted to the determination of competent courts. Only when the nullity of
the marriage is so declared can it be held as void, and so long as there is no
such declaration the presumption is that the marriage exists. No matter how
[13]

obvious, manifest or patent the absence of an element is, the intervention of

the courts must always be resorted to. That is why Article 40 of the Family
Code requires a "final judgment," which only the courts can render. Thus, as
ruled in Landicho v. Relova, he who contracts a second marriage before the
[14]

judicial declaration of nullity of the first marriage assumes the risk of being
prosecuted for bigamy, and in such a case the criminal case may not be
suspended on the ground of the pendency of a civil case for declaration of
nullity. In a recent case for concubinage, we held that the pendency of a civil
case for declaration of nullity of marriage is not a prejudicial question. This
[15]

ruling applies here by analogy since both crimes presuppose the subsistence
of a marriage.

Ignorance of the existence of Article 40 of the Family Code cannot even be

successfully invoked as an excuse. The contracting of a marriage knowing
[16]

that the requirements of the law have not been complied with or that the
marriage is in disregard of a legal impediment is an act penalized by the
Revised Penal Code. The legality of a marriage is a matter of law and every
[17]

person is presumed to know the law. As respondent did not obtain the judicial
declaration of nullity when he entered into the second marriage, why should
he be allowed to belatedly obtain that judicial declaration in order to delay his
criminal prosecution and subsequently defeat it by his own disobedience of
the law? If he wants to raise the nullity of the previous marriage, he can do it
as a matter of defense when he presents his evidence during the trial proper
in the criminal case.

The burden of proof to show the dissolution of the first marriage before the
second marriage was contracted rests upon the defense, but that is a matter
[18]

that can be raised in the trial of the bigamy case. In the meantime, it should be
stressed that not every defense raised in the civil action may be used as a
prejudicial question to obtain the suspension of the criminal action. The lower
court, therefore, erred in suspending the criminal case for bigamy. Moreover,
when respondent was indicted for bigamy, the fact that he entered into two
marriage ceremonies appeared indubitable. It was only after he was sued by
petitioner for bigamy that he thought of seeking a judicial declaration of nullity
of his first marriage. The obvious intent, therefore, is that respondent merely
resorted to the civil action as a potential prejudicial question for the purpose of
frustrating or delaying his criminal prosecution. As has been discussed above,
this cannot be done.

In the light of Article 40 of the Family Code, respondent, without first having
obtained the judicial declaration of nullity of the first marriage, can not be said
to have validly entered into the second marriage. Per current jurisprudence, a
marriage though void still needs a judicial declaration of such fact before any
party can marry again; otherwise the second marriage will also be void. The [19]

reason is that, without a judicial declaration of its nullity, the first marriage is
presumed to be subsisting. In the case at bar, respondent was for all legal
intents and purposes regarded as a married man at the time he contracted his
second marriage with petitioner. Against this legal backdrop, any decision in
[20]

the civil action for nullity would not erase the fact that respondent entered into
a second marriage during the subsistence of a first marriage. Thus, a decision
in the civil case is not essential to the determination of the criminal charge. It
is, therefore, not a prejudicial question. As stated above, respondent cannot
be permitted to use his own malfeasance to defeat the criminal action against
him.[21]
WHEREFORE, the petition is GRANTED. The order dated December 29,
1998 of the Regional Trial Court, Branch 226 of Quezon City is
REVERSED and SET ASIDE and the trial court is ordered to
IMMEDIATELY proceed with Criminal Case No. Q98-75611.

SO ORDERED.

FIRST PRODUCERS HOLDINGS CORPORATION, petitioner,

vs. LUIS CO, respondent.

DECISION

PANGANIBAN, J.:

A criminal proceeding, as a rule, may be suspended upon a showing

that a prejudicial question determinative of the guilt or innocence of the
accused is the very issue to be decided in a civil case pending in
another tribunal. However, such suspension cannot be allowed if it is
apparent that the civil action was filed as an afterthought for the purpose
of delaying the ongoing criminal action. This exception applies
especially in cases in which the trial court trying the criminal action has
authority to decide such issue, and the civil action was instituted merely
to delay the criminal proceeding and thereby multiply suits and vex the
court system with unnecessary cases. Procedural rules should be
construed to promote substantial justice, not to frustrate or delay its
delivery.

Statement of the Case

Before this Court is a Petition for Review on Certiorari under Rule 45 of

[1]

the Rules of Court, seeking a reversal of the May 10, 1999 Decision of[2]

the Court of Appeals (CA) in CA-GR SP No. 49701. The dispositive

[3]

portion of the assailed Decision reads as follows:

"WHEREFORE, premises considered, the Orders dated February

27, 1998 and October 9, 1998 are hereby ANNULLED and SET
 ASIDE, and respondent judge is hereby DIRECTED TO
SUSPEND the proceedings in Criminal Case No. 97-734 to await
the outcome of Civil Case No. 97-2663." [4]

The February 27, 1998 Order of the Regional Trial Court (RTC) which
[5]

was set aside by the CA disposed as follows:

"The MOTION TO SUSPEND on grounds of prejudicial question

and to reset arraignment is hereby DENIED for lack of merit."[6]

The Facts

The undisputed facts are summarized by the Court of Appeals as

follows:

"On March 13, 1997, x x x Armand M. Luna filed a criminal

complaint for estafa and perjury against [herein respondent] Luis
L. Co in the Office of the City Prosecutor of Manila, docketed as
I.S. No. 97-10892. Pertinent portion of the complaint is hereby
quoted as follows:

2.....On November 25, 1997, in the regular meeting of the

Board of Directors of the Producers Bank of the Philippines
held at Manhattan Bldg. Nueva Street, Manila, a resolution
was adopted authorizing the corporation to purchase three
(3) proprietary shares of Manila Polo Club to be placed in
the names of Messrs. Co Bun Chun, Henry Co and Luis Co
to be held by them on behalf of the corporation which is
evidenced by the attached ANNEX 'C':

3. In accordance with said resolution, the corporation

purchased said proprietary shares in the name of the
nominees, one of which was placed in the name of Mr. Luis
L. Co as evidenced by Proprietary Membership Certificate
No. 203 dated July 2, 1979, hereto attached as ANNEX D;

4. On March 17, 1994, after the separation from the service

of Mr. Luis L. Co, Ms. Amelita F. Bautista demanded from
him the transfer of the subject certificate in the name of the
corporation as evidenced by a letter dated March 16, 1994
attached hereto as ANNEX 'E';

5. Despite his duty to assign the certificate back to the

corporation and the subject demand, Mr. LUIS L. CO, on
April 26, 1994, instead registered the loss of the said
proprietary share with Manila Polo Club Inc. by executing a
false Affidavit of Loss and subsequently, he was able to
secure a replacement certificate No. 4454 in his name after
allegedly complying with the legal requirements for the
replacement of lost certificates. This is evidenced by the
letter dated September 5, 1996 signed by Ramon B.
Salazar, General Manager of Manila Polo Club, Inc., hereto
attached as ANNEX 'F';

6. In so doing, Mr. Luis L. Co misrepresented himself to be

the legitimate owner of subject share and by executing a
false affidavit, he made it appear that Certificate No. 203
was lost despite the fact that said certificate is existing and
remains in possession of the corporation;

7. That on February 06, 1997, another demand was made

upon Mr. Luis L. Co to deliver to us the newly issued Manila
Polo Club Certificate No. 4454 and to execute a Deed of
Assignment in favor of a new nominee. Said demand is
evidenced by the attached letter dated February 6, 1997
signed by Atty. Pedro M. Malabanan, ANNEX 'G' hereof;

8. That the value of said certificate is FIVE MILLION SIX

HUNDRED FIFTY THOUSAND PESOS (P5,650,000.00) as
of April 1996 as evidenced by a certification dated Oct. 03,
1996 hereto attached as ANNEX 'H';

9. Despite subject demand, Mr. Luis L. Co failed and [has]

continuously fail[ed] to deliver the subject certificate to the
corporation and to execute a Deed of Assignment in favor of
 the nominee of the corporation to the damage and prejudice
of the latter;

10. That said act of Mr. Luis Co constitutes misappropriation

or conversion of something given to him in trust to the
prejudice of the bank;

"After the filing of [Cos] counter affidavit and after consideration of

necessary pleadings appended thereto, [the] City Prosecutor
recommended the filing of estafa and perjury against [him]. Thus,
the Office of the City Prosecutor filed [an] information for estafa
against [him] in the Regional Trial Court of Makati docketed as
Criminal Case No. 97-734 and another information for perjury was
filed in the Metropolitan Trial Court of Makati.

"Unsatisfied, [Co] appealed the resolution of the City Prosecutor

to the Department of Justice but was dismissed by the latter in
a[n] order dated October 2, 1997.

"On November 16, 1997, during the pendency of the criminal

case, [Co] filed an action for damages against Armand Luna and
First Producers Holdings (complainant in the criminal case filed)
with the Regional Trial Court of Makati, and was docketed as Civil
Case No. 97-2663. In the said complaint, [he] claimed ownership
over questioned Manila Polo Club Proprietary Share No. 203.

"On December 10, 1997, [Co] filed a motion for suspension of the
case and his arraignment thereon but was denied by [the trial
court] in an order dated February 27, 1998." [7]

Ruling of the Court of Appeals

The Court of Appeals explained that "a prejudicial question is a question

which arise[s] in a case, the resolution of which is a logical antecedent
of the issue involved in said case, and the cognizance of which pertains
to another tribunal." And based on the above definition, it ruled that the
[8]

requisites for the existence of a prejudicial question were present in the

case at bar. Should the ownership of the share in question be decided in
favor of Luis Co, there would be no basis for the charge of estafa
against him. The CA added that respondents belated filing of the civil
case did not detract from the correctness of his cause, since a motion
for suspension of a criminal action based on the pendency of a
prejudicial action may be filed at any time before the prosecution rests.

Hence, this Petition. [9]

Issues

Petitioner attributes to the CA the following errors:

"A.....The Court of Appeals committed grave and reversible error

in finding that a prejudicial question exists with respondents filing
of Civil Case No. 97-2663.

B.....The Court of Appeals committed grave and reversible error in

directing the suspension of Criminal Case No. 97-734 pending
resolution of Civil Case No. 97-2663." [10]

In the main, the Court will resolve the propriety of the suspension of the
criminal proceedings based on the alleged prejudicial question.

The Courts Ruling

The Petition is meritorious.

Main Issue: Existence of a Prejudicial Question

Echoing the appellate courts position, respondent maintains that the

issue of ownership of the Manila Polo Club share, which was raised in
the civil action, constitutes a prejudicial question warranting the
suspension of the criminal case for estafa. He argues that his guilt or
innocence may be determined only after the issue of ownership has
been resolved. He further contends that the prejudicial question was
seasonably raised because the Rules provide that it may be made "at
any time before the prosecution rests."
 Prejudicial questions are regulated by Rule 111 of the Rules of Court, as
follows:

"SEC. 5. Elements of prejudicial question. -- The two (2) essential

elements of a prejudicial question are: (a) the civil action involves
an issue similar or intimately related to the issue raised in the
criminal action; and (b) the resolution of such issue determines
whether or not the criminal action may proceed."

"SEC. 6. Suspension by reason of prejudicial question. -- A

petition for suspension of the criminal action based upon the
pendency of a prejudicial question in a civil action may be filed in
the office of the fiscal or the court conducting the preliminary
investigation. When the criminal action has been filed in court for
trial, the petition to suspend shall be filed in the same criminal
action at any time before the prosecution rests."

True, the Motion to Suspend the criminal case on the ground that a
prejudicial question existed was raised "before the prosecution
rest[ed]." However, the peculiar circumstances of this case clearly
[11]

show that it was merely a ploy to delay the resolution of the criminal
case and vex the already overloaded court system with an unnecessary
case.

Civil Case Clearly Dilatory

The criminal action for estafa had been lodged with the Office of the City
Prosecutor on March 13, 1997. Yet, respondent filed the civil case only
eight months later, on November 18, 1997. Indeed, as early as 1994, a
written demand had already been served on him to return the said
share. He did not contest petitioners claim; in fact, he filed the present
[12]

civil action several months after the institution of the criminal charge.
Verily, it is apparent that the civil action was instituted only as an
afterthought to delay the proceedings in the criminal case.

The dilatory character of the strategy of respondent is apparent from the

fact that he could have raised the issue of ownership in the criminal
case. He himself admits that the issue of ownership may be raised in
the estafa case.

Yet, he resorts to subterfuge, arguing:

"x x x. The resolution of the issue of ownership in Criminal Case

No. 97-734 would only be for the purpose of determining the guilt
or innocence of the respondent. The said issue may not be
resolved with finality in the same criminal proceedings, since the
court a quo would be bound by what appears on the face of the
Manila Polo Club Proprietary Membership Certificate No. 203.
Considering that the subject Membership Certificate clearly shows
that the same is registered in the name of the respondent, the
same is conclusive evidence of his ownership." [13]

This argument is bereft of merit. We find no sufficient reason why the

trial court hearing the criminal case cannot resolve the question of
ownership. Significantly, the civil action for recovery of civil liability is
impliedly instituted with the filing of the criminal action. Hence,
[14]

respondent may invoke all defenses pertaining to his civil liability in the
criminal action. In fact, there is no law or rule prohibiting him from airing
exhaustively the question of ownership. After all, the trial court has
jurisdiction to hear the said defense. The rules of evidence and
procedure for the recovery of civil liabilities are the same in both criminal
and civil cases. [15]

Equally unmeritorious is respondents theory that the trial court trying the
criminal case would be bound by the Membership Certificate, which was
registered in his name and would thus be "conclusive evidence of his
ownership." [16]

If the trial court would indeed consider the Certificate as conclusive

proof of his ownership, then such ruling would in fact be favorable to
him and give him no reason to file the civil suit. It would be up to
petitioner, then, to disprove during the criminal proceedings his alleged
ownership.
Ownership Is Not Necessarily An Element of Estafa

In any event, the issue of ownership is not a necessary element of

estafa, as held by the Court in Hernandez v. Court of Appeals, which we
quote:

"Ownership is not a necessary element of the crime of estafa x x

x. In estafa, the person prejudiced or the immediate victim of the
fraud need not be the owner of the goods. Thus, Article 315 of the
Revised Penal Code provides that Any person who shall
defraud another (it does not say owner) by any means mentioned
is that the loss should have fallen on someone other than the
perpetrators of the crime. x x x" [17]

Furthermore, to allow respondents stance is to open the floodgates, as

it were, to similar dilatory tactics. In this light, we reiterate hereunder our
earlier pronouncement:

"Were we to sanction the theory advanced by the respondents x x

x, there would hardly be a case for estafa that could be
prosecuted speedily, it being the easiest thing for the accused to
block the proceedings by the simple expedient of filing an
independent civil action against the complainant, raising therein
the issue that he had not received from the latter the amount
alleged to have been misappropriated. A claim to this effect is
properly a matter of defense to be interposed by the party
charged in the criminal proceedings." [18]

The foregoing principle applies with equal force in this case. Indeed, the
rules of procedure, including the rule on prejudicial questions, were
conceived to afford parties an expeditious and just disposition of cases.
This Court will not countenance their misuse and abuse to frustrate or
delay the delivery of justice. In this light, the civil action may in fact give
[19]

rise to the evils of forum shopping.

WHEREFORE, the Petition is hereby GRANTED and the assailed

Decision of the Court of Appeals REVERSED and SET ASIDE. The
 Regional Trial Court is ordered to proceed with the trial of Criminal Case
No. 97-734 with all deliberate dispatch. No costs.

SO ORDERED.

PHILIPPINE RABBIT BUS LINES, INC., petitioner, vs. PEOPLE OF

THE PHILIPPINES, respondent.

DECISION

PANGANIBAN, J.:

When the accused-employee absconds or jumps bail, the judgment meted

out becomes final and executory. The employer cannot defeat the finality of
the judgment by filing a notice of appeal on its own behalf in the guise of
asking for a review of its subsidiary civil liability. Both the primary civil liability
of the accused-employee and the subsidiary civil liability of the employer are
carried in one single decision that has become final and executory.

The Case

Before this Court is a Petition for Review under Rule 45 of the Rules of
[1]

Court, assailing the March 29, 2000 and the March 27, 2001 Resolutions of
[2] [3]

the Court of Appeals (CA) in CA-GR CV No. 59390. Petitioners appeal from
the judgment of the Regional Trial Court (RTC) of San Fernando, La Union in
Criminal Case No. 2535 was dismissed in the first Resolution as follows:

WHEREFORE, for all the foregoing, the motion to dismiss is GRANTED and the
appeal is ordered DISMISSED. [4]

The second Resolution denied petitioners Motion for Reconsideration. [5]

The Facts

The facts of the case are summarized by the CA in this wise:

On July 27, 1994, accused [Napoleon Roman y Macadangdang] was found guilty and
convicted of the crime of reckless imprudence resulting to triple homicide, multiple
physical injuries and damage to property and was sentenced to suffer the penalty of
four (4) years, nine (9) months and eleven (11) days to six (6) years, and to pay
damages as follows:

a. to pay the heirs of JUSTINO TORRES the sum of P50,000.00 as indemnity

for his death, plus the sum of P25,383.00, for funeral expenses, his
unearned income for one year at P2,500.00 a month, P50,000.00 as
indemnity for the support of Renato Torres, and the further sum
of P300,000.00 as moral damages;

b. to the heirs of ESTRELLA VELERO, the sum of P50,000.00 as indemnity

for her death, the sum of P237,323.75 for funeral expenses, her unearned
income for three years at P45,000.00 per annum, and the further sum
of P1,000,000.00 as moral damages and P200,000.00 as attorneys fees[;]

c. to the heirs of LORNA ANCHETA, the sum of P50,000.00 as indemnity for

her death, the sum of P22,838.00 as funeral expenses, the sum
of P20,544.94 as medical expenses and her loss of income for 30 years
at P1,000.00 per month, and the further sum of P100,000.00 for moral
damages;

d. to MAUREEN BRENNAN, the sum of P229,654.00 as hospital expenses,

doctors fees of P170,000.00 for the orthopedic surgeon, P22,500.00 for
the [n]eurologist, an additional indemnity [of] at least P150,000.00 to
cover future correction of deformity of her limbs, and moral damages in
the amount of P1,000,000.00;

e. to ROSIE BALAJO, the sum of P3,561.46 as medical expenses, P2,000.00

as loss of income, and P25,000.00 as moral damages;

f. to TERESITA TAMONDONG, the sum of P19,800.47 as medical

expenses, P800.00 for loss of income, and P25,000.00 as moral
damages;
 g. to JULIANA TABTAB, the amount of P580.81 as medical
expenses, P4,600.00 as actual damages and her loss earnings
of P1,400.00 as well as moral damages in the amount of P10,000.00;

h. to MIGUEL ARQUITOLA, the sum of P12,473.82 as hospital

expenses, P14,530.00 as doctors fees, P1,000.00 for medicines
and P50,000.00 as moral damages;

i. to CLARITA CABANBAN, the sum of P155.00 for medical

expenses, P87.00 for medicines, P1,710.00 as actual damages
and P5,000.00 as moral damages;

j. to MARIANO CABANBAN, the sum of P1,395.00 for hospital

bills, P500.00 for medicine, P2,100.00 as actual damages, P1,200.00 for
loss of income and P5,000.00 as moral damages;

k. to La Union Electric Company as the registered owner of the Toyota Hi-Ace

Van, the amount of P250,000.00 as actual damages for the cost of the
totally wrecked vehicle; to the owner of the jeepney, the amount
of P22,698.38 as actual damages;

The court further ruled that [petitioner], in the event of the insolvency of accused,
shall be liable for the civil liabilities of the accused. Evidently, the judgment against
accused had become final and executory.

Admittedly, accused had jumped bail and remained at-large. It is worth mention[ing]
that Section 8, Rule 124 of the Rules of Court authorizes the dismissal of appeal when
appellant jumps bail. Counsel for accused, also admittedly hired and provided by
[petitioner], filed a notice of appeal which was denied by the trial court. We affirmed
the denial of the notice of appeal filed in behalf of accused.

Simultaneously, on August 6, 1994, [petitioner] filed its notice of appeal from the
judgment of the trial court. On April 29, 1997, the trial court gave due course to
[petitioners] notice of appeal. On December 8, 1998, [petitioner] filed its
brief. On December 9, 1998, the Office of the Solicitor General received [a] copy of
[petitioners] brief. On January 8, 1999, the OSG moved to be excused from filing
[respondents] brief on the ground that the OSGs authority to represent People is
confined to criminal cases on appeal. The motion was however denied per Our
resolution of May 31, 1999. On March 2, 1999, [respondent]/private prosecutor filed
the instant motion to dismiss. (Citations omitted)
[6]

Ruling of the Court of Appeals

The CA ruled that the institution of a criminal case implied the institution
also of the civil action arising from the offense. Thus, once determined in the
criminal case against the accused-employee, the employers subsidiary civil
liability as set forth in Article 103 of the Revised Penal Code becomes
conclusive and enforceable.

The appellate court further held that to allow an employer to dispute

independently the civil liability fixed in the criminal case against the accused-
employee would be to amend, nullify or defeat a final judgment. Since the
notice of appeal filed by the accused had already been dismissed by the CA,
then the judgment of conviction and the award of civil liability became final
and executory. Included in the civil liability of the accused was the employers
subsidiary liability.

Hence, this Petition. [7]

The Issues

Petitioner states the issues of this case as follows:

A. Whether or not an employer, who dutifully participated in the defense of its

accused-employee, may appeal the judgment of conviction independently of the
accused.

B. Whether or not the doctrines of Alvarez v. Court of Appeals (158 SCRA 57)
and Yusay v. Adil (164 SCRA 494) apply to the instant case. [8]

There is really only one issue. Item B above is merely an adjunct to Item
A.

The Courts Ruling

The Petition has no merit.

 Main Issue:

Propriety of Appeal by the Employer

Pointing out that it had seasonably filed a notice of appeal from the RTC
Decision, petitioner contends that the judgment of conviction against the
accused-employee has not attained finality. The former insists that its appeal
stayed the finality, notwithstanding the fact that the latter had jumped bail. In
effect, petitioner argues that its appeal takes the place of that of the accused-
employee.

We are not persuaded.

Appeals in Criminal Cases

Section 1 of Rule 122 of the 2000 Revised Rules of Criminal Procedure

states thus:

Any party may appeal from a judgment or final order, unless the accused will be
placed in double jeopardy.

Clearly, both the accused and the prosecution may appeal a criminal case,
but the government may do so only if the accused would not thereby be
placed in double jeopardy. Furthermore, the prosecution cannot appeal on the
[9]

ground that the accused should have been given a more severe penalty. On [10]

the other hand, the offended parties may also appeal the judgment with
respect to their right to civil liability. If the accused has the right to appeal the
judgment of conviction, the offended parties should have the same right to
appeal as much of the judgment as is prejudicial to them. [11]

Appeal by the Accused

Who Jumps Bail

Well-established in our jurisdiction is the principle that the appellate court

may, upon motion or motu proprio, dismiss an appeal during its pendency if
the accused jumps bail. The second paragraph of Section 8 of Rule 124 of the
2000 Revised Rules of Criminal Procedure provides:
The Court of Appeals may also, upon motion of the appellee or motu proprio, dismiss
the appeal if the appellant escapes from prison or confinement, jumps bail or flees to a
foreign country during the pendency of the appeal. [12]

This rule is based on the rationale that appellants lose their standing in
court when they abscond. Unless they surrender or submit to the courts
jurisdiction, they are deemed to have waived their right to seek judicial relief. [13]

Moreover, this doctrine applies not only to the accused who jumps bail
during the appeal, but also to one who does so during the trial. Justice Florenz
D. Regalado succinctly explains the principle in this wise:

x x x. When, as in this case, the accused escaped after his arraignment and during the
trial, but the trial in absentia proceeded resulting in the promulgation of a judgment
against him and his counsel appealed, since he nonetheless remained at large his
appeal must be dismissed by analogy with the aforesaid provision of this Rule [Rule
124, 8 of the Rules on Criminal Procedure]. x x x [14]

The accused cannot be accorded the right to appeal unless they

voluntarily submit to the jurisdiction of the court or are otherwise arrested
within 15 days from notice of the judgment against them. While at large, they
[15]

cannot seek relief from the court, as they are deemed to have waived the
appeal. [16]

Finality of a Decision

in a Criminal Case

As to when a judgment of conviction attains finality is explained in Section

7 of Rule 120 of the 2000 Rules of Criminal Procedure, which we quote:

A judgment of conviction may, upon motion of the accused, be modified or set aside
before it becomes final or before appeal is perfected. Except where the death penalty
is imposed, a judgment becomes final after the lapse of the period for perfecting an
appeal, or when the sentence has been partially or totally satisfied or served, or when
the accused has waived in writing his right to appeal, or has applied for probation.
 In the case before us, the accused-employee has escaped and refused to
surrender to the proper authorities; thus, he is deemed to have abandoned his
appeal. Consequently, the judgment against him has become final and
executory. [17]

Liability of an Employer

in a Finding of Guilt

Article 102 of the Revised Penal Code states the subsidiary civil liabilities
of innkeepers, as follows:

In default of the persons criminally liable, innkeepers, tavernkeepers, and any other
persons or corporations shall be civilly liable for crimes committed in their
establishments, in all cases where a violation of municipal ordinances or some general
or special police regulation shall have been committed by them or their employees.

Innkeepers are also subsidiary liable for restitution of goods taken by robbery or theft
within their houses from guests lodging therein, or for payment of the value thereof,
provided that such guests shall have notified in advance the innkeeper himself, or the
person representing him, of the deposit of such goods within the inn; and shall
furthermore have followed the directions which such innkeeper or his representative
may have given them with respect to the care and vigilance over such goods. No
liability shall attach in case of robbery with violence against or intimidation of
persons unless committed by the innkeepers employees.

Moreover, the foregoing subsidiary liability applies to employers, according

to Article 103 which reads:

The subsidiary liability established in the next preceding article shall also apply to
employers, teachers, persons, and corporations engaged in any kind of industry for
felonies committed by their servants, pupils, workmen, apprentices, or employees in
the discharge of their duties.

Having laid all these basic rules and principles, we now address the main
issue raised by petitioner.

Civil Liability Deemed Instituted

in the Criminal Prosecution

At the outset, we must explain that the 2000 Rules of Criminal Procedure
has clarified what civil actions are deemed instituted in a criminal prosecution.

Section 1 of Rule 111 of the current Rules of Criminal Procedure provides:

When a criminal action is instituted, the civil action for the recovery of civil liability
arising from the offense charged shall be deemed instituted with the criminal action
unless the offended party waives the civil action, reserves the right to institute it
separately or institutes the civil action prior to the criminal action.

xxxxxxxxx

Only the civil liability of the accused arising from the crime charged is
deemed impliedly instituted in a criminal action, that is, unless the offended
party waives the civil action, reserves the right to institute it separately, or
institutes it prior to the criminal action. Hence, the subsidiary civil liability of
[18]

the employer under Article 103 of the Revised Penal Code may be enforced
by execution on the basis of the judgment of conviction meted out to the
employee. [19]

It is clear that the 2000 Rules deleted the requirement of reserving

independent civil actions and allowed these to proceed separately from
criminal actions. Thus, the civil actions referred to in Articles 32, 33, 34 and
[20] [21] [22]

2176 of the Civil Code shall remain separate, distinct and independent of any
[23]

criminal prosecution based on the same act. Here are some direct
consequences of such revision and omission:

1. The right to bring the foregoing actions based on the Civil Code need
not be reserved in the criminal prosecution, since they are not deemed
included therein.

2. The institution or the waiver of the right to file a separate civil action
arising from the crime charged does not extinguish the right to bring such
action.
 3. The only limitation is that the offended party cannot recover more than
once for the same act or omission. [24]

What is deemed instituted in every criminal prosecution is the civil liability

arising from the crime or delict per se (civil liability ex delicto), but not those
liabilities arising from quasi-delicts, contracts or quasi-contracts. In fact, even
if a civil action is filed separately, the ex delicto civil liability in the criminal
prosecution remains, and the offended party may -- subject to the control of
the prosecutor -- still intervene in the criminal action, in order to protect the
remaining civil interest therein.[25]

This discussion is completely in accord with the Revised Penal Code,

which states that [e]very person criminally liable for a felony is also civilly
liable.
[26]

Petitioner argues that, as an employer, it is considered a party to the

criminal case and is conclusively bound by the outcome
thereof. Consequently, petitioner must be accorded the right to pursue the
case to its logical conclusion -- including the appeal.

The argument has no merit. Undisputedly, petitioner is not a direct party to

the criminal case, which was filed solely against Napoleon M. Roman, its
employee.

In its Memorandum, petitioner cited a comprehensive list of cases dealing

with the subsidiary liability of employers. Thereafter, it noted that none can be
applied to it, because in all th[o]se cases, the accuseds employer did not
interpose an appeal. Indeed, petitioner cannot cite any single case in which
[27]

the employer appealed, precisely because an appeal in such circumstances is

not possible.

The cases dealing with the subsidiary liability of employers uniformly

declare that, strictly speaking, they are not parties to the criminal cases
instituted against their employees. Although in substance and in effect, they
[28]

have an interest therein, this fact should be viewed in the light of their
subsidiary liability. While they may assist their employees to the extent of
supplying the latters lawyers, as in the present case, the former cannot act
independently on their own behalf, but can only defend the accused.

Waiver of Constitutional Safeguard

Against Double Jeopardy

Petitioners appeal obviously aims to have the accused-employee absolved

of his criminal responsibility and the judgment reviewed as a whole. These
intentions are apparent from its Appellants Brief filed with the CA and from its
[29]

Petition before us, both of which claim that the trial courts finding of guilt is
[30]

not supported by competent evidence. [31]

An appeal from the sentence of the trial court implies a waiver of the
constitutional safeguard against double jeopardy and throws the whole case
open to a review by the appellate court. The latter is then called upon to
render judgment as law and justice dictate, whether favorable or unfavorable
to the appellant. This is the risk involved when the accused decides to
[32]

appeal a sentence of conviction. Indeed, appellate courts have the power to

[33]

reverse, affirm or modify the judgment of the lower court and to increase or
reduce the penalty it imposed. [34]

If the present appeal is given course, the whole case against the accused-
employee becomes open to review. It thus follows that a penalty higher than
that which has already been imposed by the trial court may be meted out to
him. Petitioners appeal would thus violate his right against double jeopardy,
since the judgment against him could become subject to modification without
his consent.

We are not in a position to second-guess the reason why the accused

effectively waived his right to appeal by jumping bail. It is clear, though, that
petitioner may not appeal without violating his right against double jeopardy.

Effect of Absconding

on the Appeal Process

 Moreover, within the meaning of the principles governing the prevailing
criminal procedure, the accused impliedly withdrew his appeal by jumping bail
and thereby made the judgment of the court below final. Having been a[35]

fugitive from justice for a long period of time, he is deemed to have waived his
right to appeal. Thus, his conviction is now final and executory. The Court
in People v. Ang Gioc ruled:
[36]

There are certain fundamental rights which cannot be waived even by the accused
himself, but the right of appeal is not one of them. This right is granted solely for the
benefit of the accused. He may avail of it or not, as he pleases. He may waive it either
expressly or by implication. When the accused flees after the case has been submitted
to the court for decision, he will be deemed to have waived his right to appeal from
the judgment rendered against him. x x x. [37]

By fleeing, the herein accused exhibited contempt of the authority of the

court and placed himself in a position to speculate on his chances for a
reversal. In the process, he kept himself out of the reach of justice, but hoped
to render the judgment nugatory at his option. Such conduct is intolerable
[38]

and does not invite leniency on the part of the appellate court. [39]

Consequently, the judgment against an appellant who escapes and who

refuses to surrender to the proper authorities becomes final and executory. [40]

Thus far, we have clarified that petitioner has no right to appeal the
criminal case against the accused-employee; that by jumping bail, he has
waived his right to appeal; and that the judgment in the criminal case against
him is now final.

Subsidiary Liability

Upon Finality of Judgment

As a matter of law, the subsidiary liability of petitioner now

accrues. Petitioner argues that the rulings of this Court in Miranda v. Malate
Garage & Taxicab, Inc., Alvarez v. CA and Yusay v. Adil do not apply to
[41] [42] [43]

the present case, because it has followed the Courts directive to the
employers in these cases to take part in the criminal cases against their
employees. By participating in the defense of its employee, herein petitioner
tries to shield itself from the undisputed rulings laid down in these leading
cases.

Such posturing is untenable. In dissecting these cases on subsidiary

liability, petitioner lost track of the most basic tenet they have laid down -- that
an employers liability in a finding of guilt against its accused-employee is
subsidiary.

Under Article 103 of the Revised Penal Code, employers are subsidiarily
liable for the adjudicated civil liabilities of their employees in the event of the
latters insolvency. The provisions of the Revised Penal Code on subsidiary
[44]

liability -- Articles 102 and 103 -- are deemed written into the judgments in the
cases to which they are applicable. Thus, in the dispositive portion of its
[45]

decision, the trial court need not expressly pronounce the subsidiary liability of
the employer.

In the absence of any collusion between the accused-employee and the

offended party, the judgment of conviction should bind the person who is
subsidiarily liable. In effect and implication, the stigma of a criminal
[46]

conviction surpasses mere civil liability. [47]

To allow employers to dispute the civil liability fixed in a criminal case

would enable them to amend, nullify or defeat a final judgment rendered by a
competent court. By the same token, to allow them to appeal the final
[48]

criminal conviction of their employees without the latters consent would also
result in improperly amending, nullifying or defeating the judgment.

The decision convicting an employee in a criminal case is binding and

conclusive upon the employer not only with regard to the formers civil liability,
but also with regard to its amount. The liability of an employer cannot be
separated from that of the employee. [49]

Before the employers subsidiary liability is exacted, however, there must

be adequate evidence establishing that (1) they are indeed the employers of
the convicted employees; (2) that the former are engaged in some kind of
industry; (3) that the crime was committed by the employees in the discharge
of their duties; and (4) that the execution against the latter has not been
satisfied due to insolvency. [50]

The resolution of these issues need not be done in a separate civil

action. But the determination must be based on the evidence that the
offended party and the employer may fully and freely present. Such
determination may be done in the same criminal action in which the
employees liability, criminal and civil, has been pronounced; and in a hearing
[51]

set for that precise purpose, with due notice to the employer, as part of the
proceedings for the execution of the judgment.

Just because the present petitioner participated in the defense of its

accused-employee does not mean that its liability has transformed its nature;
its liability remains subsidiary. Neither will its participation erase its subsidiary
liability. The fact remains that since the accused-employees conviction has
attained finality, then the subsidiary liability of the employer ipso
facto attaches.

According to the argument of petitioner, fairness dictates that while the

finality of conviction could be the proper sanction to be imposed upon the
accused for jumping bail, the same sanction should not affect it. In effect,
petitioner-employer splits this case into two: first, for itself; and second, for its
accused-employee.

The untenability of this argument is clearly evident. There is only one

criminal case against the accused-employee. A finding of guilt has both
criminal and civil aspects. It is the height of absurdity for this single case to be
final as to the accused who jumped bail, but not as to an entity whose liability
is dependent upon the conviction of the former.

The subsidiary liability of petitioner is incidental to and dependent on the

pecuniary civil liability of the accused-employee. Since the civil liability of the
latter has become final and enforceable by reason of his flight, then the
formers subsidiary civil liability has also become immediately
enforceable. Respondent is correct in arguing that the concept of subsidiary
liability is highly contingent on the imposition of the primary civil liability.
No Deprivation

of Due Process

As to the argument that petitioner was deprived of due process, we

reiterate that what is sought to be enforced is the subsidiary civil liability
incident to and dependent upon the employees criminal negligence. In other
words, the employer becomes ipso facto subsidiarily liable upon the conviction
of the employee and upon proof of the latters insolvency, in the same way that
acquittal wipes out not only his primary civil liability, but also his employers
subsidiary liability for his criminal negligence. [52]

It should be stressed that the right to appeal is neither a natural right nor a
part of due process. It is merely a procedural remedy of statutory origin, a
[53]

remedy that may be exercised only in the manner prescribed by the provisions
of law authorizing such exercise. Hence, the legal requirements must be
[54]

strictly complied with.[55]

It would be incorrect to consider the requirements of the rules on appeal

as merely harmless and trivial technicalities that can be discarded. Indeed,
[56]

deviations from the rules cannot be tolerated. In these times when court
[57]

dockets are clogged with numerous litigations, such rules have to be followed
by parties with greater fidelity, so as to facilitate the orderly disposition of
those cases. [58]

After a judgment has become final, vested rights are acquired by the
winning party. If the proper losing party has the right to file an appeal within
the prescribed period, then the former has the correlative right to enjoy the
finality of the resolution of the case.
[59]

In fact, petitioner admits that by helping the accused-employee, it

participated in the proceedings before the RTC; thus, it cannot be said that the
employer was deprived of due process.It might have lost its right to appeal,
but it was not denied its day in court. In fact, it can be said that by jumping
[60]

bail, the accused-employee, not the court, deprived petitioner of the right to
appeal.
 All told, what is left to be done is to execute the RTC Decision against the
accused. It should be clear that only after proof of his insolvency may the
subsidiary liability of petitioner be enforced. It has been sufficiently proven that
there exists an employer-employee relationship; that the employer is engaged
in some kind of industry; and that the employee has been adjudged guilty of
the wrongful act and found to have committed the offense in the discharge of
his duties. The proof is clear from the admissions of petitioner that [o]n 26
August 1990, while on its regular trip from Laoag to Manila, a passenger bus
owned by petitioner, being then operated by petitioners driver, Napoleon
Roman, figured in an accident in San Juan, La Union x x x. Neither does
[61]

petitioner dispute that there was already a finding of guilt against the accused
while he was in the discharge of his duties.

WHEREFORE, the Petition is hereby DENIED, and the assailed

Resolutions AFFIRMED. Costs against petitioner.

SO ORDERED.

Davide, Jr., C.J., (Chairman), Ynares-Santiago, Carpio, and Azcuna,

JJ., concur.

PEOPLE OF THE PHILIPPINES, petitioner, vs. DAVID S. ODILAO,

JR., respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari filed by the People of the

Philippines assailing the Decision of the Court of Appeals dated September
[1]

27, 2002 in CA-G.R. SP No. 71198 which directed Judge Caminade of the
Regional Trial Court (RTC) of Cebu City (Branch 6), to defer the proceedings
in Criminal Case No. CBU-55283 until the petition for review of the
reinvestigation report of the Office of the City Prosecutor is resolved by the
Department of Justice (DOJ).
 The antecedent facts are as follows.

Herein respondent David S. Odilao, Jr. together with Enrique Samonte and
Mario Yares, was charged with Estafa in an Information filed by the Asst. City
[2]

Prosecutor Feliciano with the RTC of Cebu City, to wit:

The undersigned Prosecutor I of Cebu City, accuses David Odilao, Jr., Enrique
Samonte and Mario Yares of the crime of ESTAFA, committed as follows:

That sometime during the latter part of 1997, and for sometime prior or subsequent
thereto, in the City of Cebu, Philippines, and within the jurisdiction of this Honorable
Court, the said accused, conniving, confederating and mutually helping with one
another, having received in trust from Trans Eagle Corporation a luxury car known as
Jeep Cherokee Sport 4wd valued at P1,199,520.00 with the agreement that they would
sign the document of sale if they are interested to buy the same and with the
obligation to return the said car to Trans Eagle Corporation if they are not interested,
the said accused, once in possession of the said luxury car, far from complying with
their obligation, with deliberate intent, with intent to gain, with unfaithfulness and
grave abuse of confidence, did then and there misappropriate, misapply and convert
into their own personal use and benefit the same or the amount of P1,199,520.00
which is the equivalent value thereof, and inspite of repeated demands made upon
them to let them comply with their obligation to return the luxury car, they have failed
and refused and instead denied to have received the luxury car known as Jeep
Cherokee Sport 4WD and up to the present time still fail and refuse to do so, to the
damage and prejudice of Trans Eagle Corporation in the amount aforestated.

CONTRARY TO LAW.

A warrant of arrest against respondent was then issued by the Executive

Judge. Upon motion of respondent, the Executive Judge issued an
Order dated September 28, 2000directing the Office of the City Prosecutor to
[3]

conduct reinvestigation of the case with a caveat that the reinvestigation will
be terminated within ten days from receipt of the order and thereafter, submit
appropriate recommendation to it. In the meantime the Executive Judge
countermanded the service of the warrant of arrest.
 Based on his reinvestigation report dated October 17, 2000 which found
[4]

no probable cause, Asst. City Prosecutor Capacio filed with the trial court a
Motion to Dismiss dated October 20, 2000. On October 27, 2000, private
[5]

complainant Carmen G. Bugash filed an urgent motion to disregard the

reinvestigation report. On November 3, 2000, private complainant filed with
[6]

the DOJ a petition for review seeking the reversal of the Reinvestigation
[7]

Report. In an Order dated October 30, 2000, the trial court deferred the
arraignment until the petition for review would have been finally resolved by
the Department of Justice. On February 20, 2001, the trial court issued
[8]

another order holding in abeyance the resolution of the motion to dismiss until
the DOJ shall have resolved the petition for review.[9]

More than one year later, private complainant filed with the trial court
on March 14, 2002, a Motion to Suspend Resolution of the Motion to Dismiss.
Thereafter, the trial court, acting on the prosecutions motion to dismiss filed
[10]

on October 20, 2000 and private complainants motion to disregard the

reinvestigation report, issued an Order dated May 21, 2002, (1) denying the
[11]

motion to dismiss; and (2) declaring the motion to disregard the

reinvestigation report to be moot and academic, rationalizing that [t]he
Revised Rules of Criminal Procedure which was approved on December 1,
2000 vests now authority to the trial court to rule on the presence or absence
of probable cause. If the Court finds probable cause it will issue forthwith a
warrant of arrest otherwise it will dismiss the case. Respondent filed a motion
for reconsideration which was denied in the Order dated June 13, 2002 of
[12] [13]

the RTC which likewise directed the implementation of the existing warrant of
arrest against him.

Respondent went up to the Court of Appeals by filing a petition

for certiorari and prohibition, docketed as CA-G.R. SP No. 91198, against the
[14]

People of the Philippines, Presiding Judge Caminade and private complainant

Carmen Bugash. On September 27, 2002, the Court of Appeals rendered a
Decision granting the petition and directing the trial court to defer the
[15]

proceedings until the petition for review before the DOJ has been resolved.

Hence, the People of the Philippines filed the instant petition for review
on certiorari seeking the reversal of the Court of Appeals decision. Petitioner,
represented by the Office of the Solicitor General (OSG), claims:
 I

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT

FINDING THAT THE TRIAL COURT WAS JUSTIFIED IN RESOLVING THE
MOTION TO DISMISS FILED BY THE OFFICE OF THE CITY PROSECUTOR
DESPITE THE PENDENCY OF A PETITION FOR REVIEW BEFORE THE
DEPARTMENT OF JUSTICE.

II

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN NOT

FINDING THAT THE TRIAL COURT WAS JUSTIFIED IN DIRECTING THE
IMPLEMENTATION OF THE WARRANT OF ARREST AFTER FINDING
PROBABLE CAUSE.

III

THE COURT OF APPEALS COMMITTED REVERSIBLE ERROR IN GRANTING

THE INJUNCTION SOUGHT BY THE RESPONDENT WHICH ENJOINED THE
TRIAL COURT FROM IMPLEMENTING THE WARRANT OF ARREST AND
FROM FURTHER CONDUCTING PROCEEDINGS IN THE CASE UNTIL THE
PETITION FOR REVIEW OF THE REINVESTIGATION REPORT OF THE CITY
PROSECUTOR IS RESOLVED BY THE DEPARTMENT OF JUSTICE.

On December 11, 2002, we issued a Resolution requiring respondent to

[16]

file his comment on the petition. In compliance therewith respondent filed his
Comment/Opposition to Petitioners Application for Temporary Restraining
Order and/or Writ of Preliminary Injunction, which we duly
[17]

noted. Respondent alleges:

a. The Petition for Review on Certiorari filed by the Office of the Solicitor General, and
wherein the Application for Temporary Restraining Order and/or Writ of Preliminary
Injunction is incorporated, is fatally defective, hence both Petition and Application
should be dismissed and denied, respectively; and

b. Petitioner-applicant failed to adequately and sufficiently show that it is entitled to the

issuance of the temporary restraining order and/or writ of preliminary injunction,
while on the other hand, it is undeniable that the issuance of the temporary
restraining order and/or writ of preliminary injunction would undeniably cause
irreparable damage to the person and rights of herein respondent.
 Unknown to us, however, while herein petition was pending our resolution,
private complainant Bugash filed a motion for reconsideration before the Court
of Appeals, seeking reversal of its Decision dated September 27, 2002. The
Court of Appeals granted private complainants motion for reconsideration per
its Resolution dated June 12, 2003, thereby reversing its own Decision
dated September 27, 2002. In said Resolution, the Court of Appeals ruled that
the trial courts Orders dated May 21, 2002 and June 13, 2002, denying the
prosecutions motion to dismiss together with the implementation of the
warrant of arrest against herein respondent is valid, pursuant to Section 11,
Rule 116 of the Revised Rules of Criminal Procedure which provides that the
suspension of arraignment shall not be more than sixty days from the filing of
the petition for review of the resolution of the prosecutor.

It should be emphasized that the Resolution of June 12, 2003 was issued
by the Court of Appeals despite the pendency of the petition for review on
certiorari before us. We were only apprised of such development when
respondent furnished us with a copy of his Very Urgent Motion for
Reconsideration filed with the Court of Appeals, where he sought
[18]

reconsideration of its Resolution dated June 12, 2003. The records do not
show whether the Court of Appeals had resolved said motion.

Respondent likewise filed with us an Urgent Manifestation dated June 16,

[19]

2003, informing us that the DOJ, acting on private complainant Carmen

Bugashs petition for review, has issued a Resolution dated May 27, 2003,
[20]

denying the petition for review; in effect, sustaining the filing of the motion to
dismiss by the Assistant City Prosecutor.

Meanwhile, on October 6, 2003, we received petitioners Consolidated

Reply and Comment, praying that the Resolution of the Court of Appeals
[21]

dated June 12, 2003, finding the trial courts Orders to be valid, be affirmed
and that a temporary restraining order and/or preliminary injunction be issued
to restrain respondent and any person acting in his behalf from implementing
the Court of Appeals decision dated September 27, 2002 which directed the
trial court to defer the proceedings before it until the DOJ shall have resolved
the petition for review filed before the DOJ.
 The main issue brought before us is whether or not the trial court was
correct in denying the prosecutions motion to dismiss the estafa case and
ordering the implementation of the warrant of arrest against herein
respondent.

The petition is impressed with merit.

First, let us dispose of respondents argument that the petition should be

dismissed for failure to comply with the requirements of a proper verification
and proof of service; and that the petition was prematurely filed because it
was filed even before we issued a resolution granting the motion for extension
of time to file the petition.

With regard to the verification, we are convinced that the

verification/certification appearing in the petition for review, although referring
to a motion for extension to file is a valid verification/certification of the petition
for review. The phrase motion for extension to file was merely a typographical
error committed through sheer inadvertence.

As to the requirement of attaching an affidavit of service to the petition, a

perusal of the rollo of this case will readily show that such an affidavit of
service had been attached to the petition. [22]

Moreover, the OSG may not be faulted in filing the petition for review
before its receipt of our Resolution dated November 25, 2002 granting the
motion for extension of time. Had petitioner waited to receive a resolution
granting its motion for extension before filing the petition, the extended period
for filing would have, by then, expired. Thus, there was nothing irregular with
the procedure taken by petitioner, rather, such was the most prudent thing for
it to have done.

We now come to the crux of the petition.

Section 6 (a), Rule 112 of the Revised Rules of Criminal Procedure, which
took effect on December 1, 2000, provides thus:

SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten
(10) days from the filing of the complaint or information, the judge shall personally
evaluate the resolution of the prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on record clearly fails to establish
probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a
commitment order if the accused has already been arrested pursuant to a warrant
issued by the judge who conducted the preliminary investigation or when the
complaint or information was filed pursuant to section 7 of this Rule. In case of doubt
on the existence of probable cause, the judge may order the prosecutor to present
additional evidence within five (5) days from notice and the issue must be resolved by
the court within thirty (30) days from the filing of the complaint or information.

...

Pursuant to the aforequoted rule, the judge of the trial court is mandated to
personally evaluate the resolution of the prosecutor and its supporting
evidence to determine whether probable cause exists and pursuant to its own
findings, either dismiss the case immediately if no probable cause exists, or to
issue the warrant of arrest in the absence of probable cause.

Even before the effectivity of the aforequoted rule, the Court enunciated
the following ruling in Crespo vs. Mogul, to wit:
[23]

The preliminary investigation conducted by the fiscal for the purpose of determining
whether a prima facie case exists warranting the prosecution of the accused is
terminated upon the filing of the information in the proper court. In turn, as above
stated, the filing of said information sets in motion the criminal action against the
accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the
case, at such stage, the permission of the Court must be secured. After such
reinvestigation the finding and recommendations of the fiscal should be submitted to
the Court for appropriate action. While it is true that the fiscal has the quasi judicial
discretion to determine whether or not a criminal case should be filed in court or not,
once the case had already been brought to Court whatever disposition the fiscal may
feel should be proper in the case thereafter should be addressed for the consideration
of the Court. The only qualification is that the action of the Court must not impair the
substantial rights of the accused or the right of the People to due process of law.

Whether the accused had been arraigned or not and whether it was due to a
reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion
to dismiss was submitted to the Court, the Court in the exercise of its discretion may
grant the motion or deny it and require that the trial on the merits proceed for the
proper determination of the case.

However, one may ask, if the trial court refuses to grant the motion to dismiss filed by
the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in
the prosecution? . . .

The answer is simple. The role of the fiscal or prosecutor as We all know is to see that
justice is done and not necessarily to secure the conviction of the person accused
before the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the
fiscal to proceed with the presentation of evidence of the prosecution to the Court to
enable the Court to arrive at its own independent judgment as to whether the accused
should be convicted or acquitted. . . .

The rule therefore in this jurisdiction is that once a complaint or information is filed in
Court any disposition of the case as its dismissal or the conviction or acquittal of the
accused rests in the sound discretion of the Court. Although the fiscal retains the
direction and control of the prosecution of criminal cases even while the case is
already in Court he cannot impose his opinion on the trial court. The Court is the best
and sole judge on what to do with the case before it. The determination of the case is
within its exclusive jurisdiction and competence. A motion to dismiss the case filed by
the fiscal should be addressed to the Court who has the option to grant or deny the
same. It does not matter if this is done before or after the arraignment of the accused
or that the motion was filed after a reinvestigation or upon instructions of the
Secretary of Justice who reviewed the records of the investigation.

Thus, in Perez vs. Hagonoy Rural Bank, Inc., the Court held that the trial
[24]

court judges reliance on the prosecutors averment that the Secretary of

Justice had recommended the dismissal of the case against the petitioner
was, to say the least, an abdication of the trial courts duty and jurisdiction to
determine a prima facie case, in blatant violation of this Courts
pronouncement in Crespo vs. Mogul . . . This was reiterated in Solar Team
Entertainment, Inc. vs. Hon. Rolando How, where the Court held thus:
[25]

It bears stressing that the court is however not bound to adopt the resolution of the
Secretary of Justice since the court is mandated to independently evaluate or assess
the merits of the case, and may either agree or disagree with the recommendation of
the Secretary of Justice. Reliance alone on the resolution of the Secretary of Justice
would be an abdication of the trial courts duty and jurisdiction to determine prima
facie case.

Evidently, when the trial court issued the Orders dated May 21,
2002 and June 13, 2002, respectively, the trial court judge was merely
performing his mandated duty to personally determine the existence of
probable cause and thus arrive at a resolution of the motion to
dismiss. Having found probable cause, the trial court acted well within its
authority in denying said motion to dismiss and, since in the present case, a
warrant of arrest had already been issued and only the service thereof had
been countermanded, the trial court judge was also correct in ordering the
implementation of the previously issued warrant of arrest.

Verily, the proceedings in the criminal case pending in the trial court had
been held in abeyance long enough. Under Section 11, Rule 116 of the
Revised Rules of Criminal Procedure, the suspension of arraignment of an
accused in cases where a petition for review of the resolution of the
prosecutor is pending at either the Department of Justice or the Office of the
President shall not exceed sixty days counted from the filing of the petition
with the reviewing office. Although in this case, at the time that the trial court
deferred the arraignment in its Order dated October 30, 2000, the Revised
Rules of Criminal Procedure had not yet taken effect and there was as yet no
prescribed period of time for the suspension of arraignment, we believe that
the period of one and a half years from October 30, 2000 to June 13, 2002,
when the trial court ordered the implementation of the warrant of arrest, was
more than ample time to give private complainant the opportunity to obtain
a resolution of her petition for review from the DOJ. Indeed, with more than
three years having elapsed, it is now high time for the continuation of the trial
on the merits in the criminal case below as the sixty-day period counted from
the filing of the petition for review with the DOJ, provided for in Section 11,
Rule 116 of the Revised Rules of Criminal Procedure now applicable to the
case at bar, had long lapsed.

Although it is clear that the Court of Appeals earlier erred in granting the
petition for certiorari and prohibition filed before it by herein respondent, the
Court of Appeals remedied such error by reversing its Decision dated
September 27, 2002 in its Resolution dated June 12, 2003, and sustained the
trial courts Orders dated May 21, 2002 and June 13, 2002 denying the
prosecutions motion to dismiss.

However, it cannot be avoided that we remind the Court of Appeals of the

provisions of Section 15, Rule VI of the 2002 Internal Rules of the Court of
Appeals (effective August 22, 2002), which explicitly provides thus:

SEC. 15. Effect of Filing an Appeal in the Supreme Court. - No motion for
reconsideration or rehearing shall be acted upon if the movant has previously filed in
the Supreme Court a petition for review on certiorari or a motion for extension of time
to file such petition. If such petition or motion is subsequently filed, the motion for
reconsideration pending in this Court shall be deemed abandoned.

We are, therefore, quite perplexed why the Court of Appeals did not act in
accord with the aforequoted Rule and instead resolved the motion for
reconsideration of its Decision dated September 27, 2002, filed by private
complainant, despite service on it of a copy of the Motion For Extension To
File Petition For Review dated October 15, 2002, filed by the OSG.

At the very least, prudence dictates that the Court of Appeals should have
first required private complainant to secure the conformity of the OSG; or
required the latter to comment on the motion for reconsideration of the private
complainant. The positions taken by the Office of the Solicitor General and
private complainant Bugash are practically identical.

In any event, the Court of Appeals ought not to have acted on the said
motion for reconsideration of private complainant Bugash. It should have
considered said motion which, in the first place, was without the conformity of
the OSG, the representative of petitioner People of the Philippines, as having
been abandoned by the filing of herein petition by the OSG, pursuant to the
aforequoted Section 15, Rule VI of the 2002 Internal Rules of the Court of
Appeals.

Nevertheless, in the interest of speedy and orderly administration of

justice, we deem it expedient to uphold in the present petition, the Orders
dated May 21, 2002 and June 13, 2002, of the RTC denying the motion to
dismiss of the assistant city prosecutor and directing the implementation of the
warrant of arrest against respondent, for being in accordance with our rulings
in Crespo vs. Mogul, Perez vs. Hagonoy Rural Bank, Inc. and Solar Team
Entertainment, Inc. vs. Hon. Rolando How, as we have discussed in the early
part of our decision.

WHEREFORE, the petition is GRANTED. The Court of Appeals Decision

dated September 27, 2002 is REVERSED and SET ASIDE. Its Resolution
dated June 12, 2003 correcting its own error is AFFIRMED with ADMONITION
that the Court of Appeals should act with more circumspection and comply
with its 2002 Internal Rules.

The Orders dated May 21, 2002 and June 23, 2002 of
the Regional Trial Court of Cebu City (Branch 6) are AFFIRMED and the said
Regional Trial Court is directed to proceed, with immediate dispatch, with the
arraignment of herein respondent and trial on the merits of Criminal Case No.
CBU-55283.

SO ORDERED.

ROBERTO S. BENEDICTO and HECTOR T. RIVERA, petitioners,

vs. THE COURT OF APPEALS, HON. GUILLERMO L. LOJA, SR.,
PRESIDING JUDGE, REGIONAL TRIAL COURT OF MANILA,
BRANCH 26, and PEOPLE OF THE PHILIPPINES, respondents.

DECISION

QUISUMBING, J.:

Assailed in this petition is the consolidated decision rendered on May 23, 1996, by the Court
of Appeals in CA-G.R. SP No. 35928 and CA-G.R. SP No. 35719. CA-G.R. SP No. 35928 had
affirmed the order dated September 6, 1994, of the Regional Trial Court, Manila, Branch 26,
insofar as it denied petitioners respective Motions to Quash the Informations in twenty-five (25)
criminal cases for violation of Central Bank Circular No. 960. Therein included were
informations involving: (a) consolidated Criminal Cases Nos. 91-101879 to 91-101883 filed
against Mrs. Imelda R. Marcos, Roberto S. Benedicto, and Hector T. Rivera; (b) consolidated
Criminal Cases Nos. 91-101884 to 91-101892 filed against Mrs. Marcos and Benedicto; and (c)
Criminal Cases Nos. 92-101959 to 92-101969 also against Mrs. Marcos and Benedicto. Note,
however, that the Court of Appeals already dismissed Criminal Case No. 91-101884.

The factual antecedents of the instant petition are as follows:

On December 27, 1991, Mrs. Imelda Marcos and Messrs. Benedicto and Rivera were
indicted for violation of Section 10 of Circular No. 960 [1] in relation to Section 34[2] of the Central
Bank Act (Republic Act No. 265, as amended) in five Informations filed with the Regional Trial
Court of Manila. Docketed as Criminal Cases Nos. 91-101879 to 91-101883, the charge sheets
alleged that the trio failed to submit reports of their foreign exchange earnings from abroad
and/or failed to register with the Foreign Exchange Department of the Central Bank within the
period mandated by Circular No. 960. Said Circular prohibited natural and juridical persons from
maintaining foreign exchange accounts abroad without prior authorization from the Central
Bank.[3] It also required all residents of the Philippines who habitually earned or received foreign
currencies from invisibles, either locally or abroad, to report such earnings or receipts to the
Central Bank. Violations of the Circular were punishable as a criminal offense under Section 34
of the Central Bank Act.

That same day, nine additional Informations charging Mrs. Marcos and Benedicto with the
same offense, but involving different accounts, were filed with the Manila RTC, which docketed
these as Criminal Cases Nos. 91-101884 to 91-101892. The accusatory portion of the charge
sheet in Criminal Case No. 91-101888 reads:

That from September 1, 1983 up to 1987, both dates inclusive, and for sometime
thereafter, both accused, conspiring and confederating with each other and with the
late President Ferdinand E. Marcos, all residents of Manila, Philippines, and within
the jurisdiction of this Honorable Court, did then and there wilfully, unlawfully and
feloniously fail to submit reports in the prescribed form and/or register with the
Foreign Exchange Department of the Central Bank within 90 days from October 21,
1983 as required of them being residents habitually/customarily earning, acquiring or
receiving foreign exchange from whatever source or from invisibles locally or from
abroad, despite the fact they actually earned interests regularly every six (6 ) months
for the first two years and then quarterly thereafter for their investment of $50-million,
later reduced to $25-million in December 1985, in Philippine-issued dollar
denominated treasury notes with floating rates and in bearer form, in the name of
Bank Hofmann, AG, Zurich, Switzerland, for the benefit of Avertina Foundation, their
front organization established for economic advancement purposes with secret foreign
exchange account Category (Rubric) C.A.R. No. 211 925-02 in Swiss Credit Bank
(also known as SKA) in Zurich, Switzerland, which earned, acquired or received for
the accused Imelda Romualdez Marcos and her late husband an interest of $2,267,892
as of December 16, 1985 which was remitted to Bank Hofmann, AG, through
Citibank, New York, United States of America, for the credit of said Avertina account
on December 19, 1985, aside from the redemption of $25 million (one-half of the
original $50-M) as of December 16, 1985 and outwardly remitted from the
Philippines in the amounts of $7,495,297.49 and $17,489,062.50 on December 18,
1985 for further investment outside the Philippines without first complying with the
Central Bank reporting/registering requirements.

CONTRARY TO LAW.[4]

The other charge sheets were similarly worded except the days of the commission of the
offenses, the name(s) of the alleged dummy or dummies, the amounts in the foreign exchange
accounts maintained, and the names of the foreign banks where such accounts were held by the
accused.

On January 3, 1992, eleven more Informations accusing Mrs. Marcos and Benedicto of the
same offense, again in relation to different accounts, were filed with the same court, docketed as
Criminal Cases Nos. 92-101959 to 92-101969. The Informations were similarly worded as the
earlier indictments, save for the details as to the dates of the violations of Circular No. 960, the
identities of the dummies used, the balances and sources of the earnings, and the names of the
foreign banks where these accounts were maintained.

All of the aforementioned criminal cases were consolidated before Branch 26 of the said
trial court.

On the same day that Criminal Cases Nos. 92-101959 to 92-101969 were filed, the Central
Bank issued Circular No. 1318[5] which revised the rules governing non-trade foreign exchange
transactions. It took effect on January 20, 1992.

On August 24, 1992, the Central Bank, pursuant to the governments policy of further
liberalizing foreign exchange transactions, came out with Circular No. 1353, [6] which amended
Circular No. 1318. Circular No. 1353 deleted the requirement of prior Central Bank approval for
foreign exchange-funded expenditures obtained from the banking system.
 Both of the aforementioned circulars, however, contained a saving clause, excepting from
their coverage pending criminal actions involving violations of Circular No. 960 and, in the case
of Circular No. 1353, violations of both Circular No. 960 and Circular No. 1318.

On September 19, 1993, the government allowed petitioners Benedicto and Rivera to return
to the Philippines, on condition that they face the various criminal charges instituted against
them, including the dollar-salting cases. Petitioners posted bail in the latter cases.

On February 28, 1994, petitioners Benedicto and Rivera were arraigned. Both pleaded not
guilty to the charges of violating Central Bank Circular No. 960. Mrs. Marcos had earlier entered
a similar plea during her arraignment for the same offense on February 12, 1992.

On August 11, 1994, petitioners moved to quash all the Informations filed against them in
Criminal Cases Nos. 91-101879 to 91-101883; 91-101884 to 91-101892, and 91-101959 to 91-
101969. Their motion was grounded on lack of jurisdiction, forum shopping, extinction of
criminal liability with the repeal of Circular No. 960, prescription, exemption from the Central
Banks reporting requirement, and the grant of absolute immunity as a result of a compromise
agreement entered into with the government.

On September 6, 1994, the trial court denied petitioners motion. A similar motion filed on
May 23, 1994 by Mrs. Marcos seeking to dismiss the dollar-salting cases against her due to the
repeal of Circular No. 960 had earlier been denied by the trial court in its order dated June 9,
1994. Petitioners then filed a motion for reconsideration, but the trial court likewise denied this
motion on October 18, 1994.

On November 21, 1994, petitioners moved for leave to file a second motion for
reconsideration. The trial court, in its order of November 23, 1994, denied petitioners motion and
set the consolidated cases for trial on January 5, 1995.

Two separate petitions for certiorari and prohibition, with similar prayers for temporary
restraining orders and/or writs of preliminary injunction, docketed as CA-G.R. SP No. 35719 and
CA-G.R. SP No. 35928, were respectively filed by Mrs. Marcos and petitioners with the Court of
Appeals. Finding that both cases involved violations of Central Bank Circular No. 960, the
appellate court consolidated the two cases.

On May 23, 1996, the Court of Appeals disposed of the consolidated cases as follows:

WHEREFORE, finding no grave abuse of discretion on the part of respondent Judge

in denying petitioners respective Motions to Quash, except that with respect to
Criminal Case No. 91-101884, the instant petitions are hereby DISMISSED for lack
of merit. The assailed September 6, 1994 Order, in so far as it denied the Motion to
Quash Criminal Case No. 91-101884 is hereby nullified and set aside, and said case is
hereby dismissed. Costs against petitioners.

SO ORDERED.[7]

Dissatisfied with the said decision of the court a quo, except with respect to the portion
ordering the dismissal of Criminal Case No. 91-101884, petitioners filed the instant petition,
attributing the following errors to the appellate court:

THAT THE COURT ERRED IN NOT FINDING THAT THE

INFORMATIONS/CASES FILED AGAINST PETITIONERS-APPELLANTS ARE
QUASHABLE BASED ON THE FOLLOWING GROUNDS:

(A) LACK OF JURISDICTION/FORUM SHOPPING/NO VALID PRELIMINARY

INVESTIGATION

(B) EXTINCTION OF CRIMINAL LIABILITY

1) REPEAL OF CB CIRCULAR NO. 960 BY CB CIRCULAR NO.

1353;

2) REPEAL OF R.A. 265 BY R.A. 7653[8]

(C) PRESCRIPTION

(D) EXEMPTION FROM CB REPORTING REQUIREMENT

(E) GRANT OF ABSOLUTE IMMUNITY.[9]

Simply stated, the issues for our resolution are:

(1) Did the Court of Appeals err in denying the Motion to Quash for lack of
jurisdiction on the part of the trial court, forum shopping by the prosecution,
and absence of a valid preliminary investigation?

(2) Did the repeal of Central Bank Circular No. 960 and Republic Act No. 265 by
Circular No. 1353 and Republic Act No. 7653 respectively, extinguish the
criminal liability of petitioners?
(3) Had the criminal cases in violation of Circular No. 960 already prescribed?

(4) Were petitioners exempted from the application and coverage of Circular No. 960?

(5) Were petitioners' alleged violations of Circular No. 960 covered by the
absolute immunity granted in the Compromise Agreement of November 3,
1990?

On the first issue, petitioners assail the jurisdiction of the Regional Trial Court. They aver
that the dollar-salting charges filed against them were violations of the Anti-Graft Law or
Republic Act No. 3019, and the Sandiganbayan has original and exclusive jurisdiction over their
cases.

Settled is the rule that the jurisdiction of a court to try a criminal case is determined by the
law in force at the time the action is instituted. [10] The 25 cases were filed in 1991-92. The
applicable law on jurisdiction then was Presidential Decree 1606. [11] Under P.D. No. 1606,
offenses punishable by imprisonment of not more than six years fall within the jurisdiction of the
regular trial courts, not the Sandiganbayan.[12]

In the instant case, all the Informations are for violations of Circular No. 960 in relation to
Section 34 of the Central Bank Act and not, as petitioners insist, for transgressions of Republic
Act No. 3019. Pursuant to Section 34 of Republic Act No. 265, violations of Circular No. 960 are
punishable by imprisonment of not more than five years and a fine of not more
than P20,000.00. Since under P.D. No. 1606 the Sandiganbayan has no jurisdiction to try
criminal cases where the imposable penalty is less than six years of imprisonment, the cases
against petitioners for violations of Circular No. 960 are, therefore, cognizable by the trial court.
No error may thus be charged to the Court of Appeals when it held that the RTC of Manila had
jurisdiction to hear and try the dollar-salting cases.

Still on the first issue, petitioners next contend that the filing of the cases for violations of
Circular No. 960 before the RTC of Manila constitutes forum shopping. Petitioners argue that the
prosecution, in an attempt to seek a favorable verdict from more than one tribunal, filed separate
cases involving virtually the same offenses before the regular trial courts and the Sandiganbayan.
They fault the prosecution with splitting the cases. Petitioners maintain that while the RTC cases
refer only to the failure to report interest earnings on Treasury Notes, the Sandiganbayan cases
seek to penalize the act of receiving the same interest earnings on Treasury Notes in violation of
the Anti-Graft Laws provisions on prohibited transactions. Petitioners aver that the violation of
Circular No. 960 is but an element of the offense of prohibited transactions punished under
Republic Act No. 3019 and should, thus, be deemed absorbed by the prohibited transactions
cases pending before the Sandiganbayan.
 For a charge of forum shopping to prosper, there must exist between an action pending in
one court and another action before another court: (a) identity of parties, or at least such parties
as represent the same interests in both actions; (b) identity of rights asserted and relief prayed for,
the relief being founded on the same facts; and (c) the identity of the two preceding particulars is
such that any judgment rendered in the other action will, regardless of which party is successful,
amount to res judicata in the action under consideration.[13] Here, we find that the single act of
receiving unreported interest earnings on Treasury Notes held abroad constitutes an offense
against two or more distinct and unrelated laws, Circular No. 960 and R.A. 3019. Said laws
define distinct offenses, penalize different acts, and can be applied independently. [14] Hence, no
fault lies at the prosecutions door for having instituted separate cases before separate tribunals
involving the same subject matter.

With respect to the RTC cases, the receipt of the interest earnings violate Circular No. 960 in
relation to Republic Act No. 265 because the same was unreported to the Central Bank. The act
to be penalized here is the failure to report the interest earnings from the foreign exchange
accounts to the proper authority. As to the anti-graft cases before the Sandiganbayan involving
the same interest earnings from the same foreign exchange accounts, the receipt of the interest
earnings transgresses Republic Act No. 3019 because the act of receiving such interest is a
prohibited transaction prejudicial to the government. What the State seeks to punish in these anti-
graft cases is the prohibited receipt of the interest earnings. In sum, there is no identity of
offenses charged, and prosecution under one law is not an obstacle to a prosecution under the
other law. There is no forum shopping.

Finally, on the first issue, petitioners contend that the preliminary investigation by the
Department of Justice was invalid and in violation of their rights to due process. Petitioners
argue that governments ban on their travel effectively prevented them from returning home and
personally appearing at the preliminary investigation. Benedicto and Rivera further point out that
the joint preliminary investigation by the Department of Justice, resulted to the charges in one set
of cases before the Sandiganbayan for violations of Republic Act No. 3019 and another set
before the RTC for violation of Circular No. 960.

Preliminary investigation is not part of the due process guaranteed by the Constitution. [15] It
is an inquiry to determine whether there is sufficient ground to engender a well-founded belief
that a crime has been committed and the respondent is probably guilty thereof. [16] Instead, the
right to a preliminary investigation is personal. It is afforded to the accused by statute, and can be
waived, either expressly or by implication.[17] The waiver extends to any irregularity in the
preliminary investigation, where one was conducted.

The petition in the present case contains the following admissions:

1. Allowed to return to the Philippines on September 19, 1993on the condition that he
face the criminal charges pending in courts, petitioner-appellant Benedicto, joined by
his co-petitioner Rivera, lost no time in attending to the pending criminal charges by
posting bail in the above-mentioned cases.

2. Not having been afforded a real opportunity of attending the preliminary

investigation because of their forced absence from the Philippines then, petitioners-
appellants invoked their right to due process thru motions for preliminary
investigationUpon denial of their demands for preliminary investigation, the
petitioners intended to elevate the matter to the Honorable Court of Appeals and
actually caused the filing of a petition for certiorari/prohibition sometime before their
arraignment but immediately caused the withdrawal thereofin view of the
prosecutions willingness to go to pre-trial wherein petitioners would be allowed
access to the records of preliminary investigation which they could use for purposes
of filing a motion to quash if warranted.

3. Thus, instead of remanding the Informations to the Department of

Justicerespondent Judge set the case for pre-trial in order to afford all the accused
access to the records of the prosecution

xxx

5. On the basis of disclosures at the pre-trial, the petitioners-appellants Benedicto and Rivera
moved for the quashing of the informations/cases[18]

The foregoing admissions lead us to conclude that petitioners have expressly waived their
right to question any supposed irregularity in the preliminary investigation or to ask for a new
preliminary investigation. Petitioners, in the above excerpts from this petition, admit posting bail
immediately following their return to the country, entered their respective pleas to the charges,
and filed various motions and pleadings. By so doing, without simultaneously demanding a
proper preliminary investigation, they have waived any and all irregularities in the conduct of a
preliminary investigation.[19] The trial court did not err in denying the motion to quash the
informations on the ground of want of or improperly conducted preliminary investigation. The
absence of a preliminary investigation is not a ground to quash the information.[20]

On the second issue, petitioners contend that they are being prosecuted for acts punishable
under laws that have already been repealed. They point to the express repeal of Central Bank
Circular No. 960 by Circular Nos. 1318 and 1353 as well as the express repeal of Republic Act
No. 265 by Republic Act No. 7653. Petitioners, relying on Article 22 of the Revised Penal Code,
 contend that repeal has the effect of extinguishing the right to prosecute or punish the offense
[21]

committed under the old laws.[22]

As a rule, an absolute repeal of a penal law has the effect of depriving a court of its authority
to punish a person charged with violation of the old law prior to its repeal. [23] This is because an
unqualified repeal of a penal law constitutes a legislative act of rendering legal what had been
previously declared as illegal, such that the offense no longer exists and it is as if the person who
committed it never did so. There are, however, exceptions to the rule. One is the inclusion of a
saving clause in the repealing statute that provides that the repeal shall have no effect on pending
actions.[24] Another exception is where the repealing act reenacts the former statute and punishes
the act previously penalized under the old law. In such instance, the act committed before the
reenactment continues to be an offense in the statute books and pending cases are not affected,
regardless of whether the new penalty to be imposed is more favorable to the accused.[25]

In the instant case, it must be noted that despite the repeal of Circular No. 960, Circular No.
1353 retained the same reportorial requirement for residents receiving earnings or profits from
non-trade foreign exchange transactions.[26] Second, even the most cursory glance at the repealing
circulars, Circular Nos. 1318 and 1353 shows that both contain a saving clause, expressly
providing that the repeal of Circular No. 960 shall have no effect on pending actions for violation
of the latter Circular.[27] A saving clause operates to except from the effect of the repealing law
what would otherwise be lost under the new law.[28] In the present case, the respective saving
clauses of Circular Nos. 1318 and 1353 clearly manifest the intent to reserve the right of the
State to prosecute and punish offenses for violations of the repealed Circular No. 960, where the
cases are either pending or under investigation.

Petitioners, however, insist that the repeal of Republic Act No. 265, particularly Section 34,
by Republic Act No. 7653, removed the applicability of any penal sanction for violations of
[29]

any non-trade foreign exchange transactions previously penalized by Circular No.

960. Petitioners posit that a comparison of the two provisions shows that Section 36 [30] of
Republic Act No. 7653 neither retained nor reinstated Section 34 of Republic Act No. 265. Since,
in creating the Bangko Sentral ng Pilipinas, Congress did not include in its charter a clause
providing for the application of Section 34 of Republic Act No. 265 to pending cases, petitioners
pending dollar-salting cases are now bereft of statutory penalty, the saving clause in Circular No.
1353 notwithstanding. In other words, absent a provision in Republic Act No. 7653 expressly
reviving the applicability of any penal sanction for the repealed mandatory foreign exchange
reporting regulations formerly required under Circular No. 960, violations of aforesaid repealed
Circular can no longer be prosecuted criminally.

A comparison of the old Central Bank Act and the new Bangko Sentrals charter repealing
the former show that in consonance with the general objective of the old law and the new law to
maintain internal and external monetary stability in the Philippines and preserve the international
value of the peso,[31] both the repealed law and the repealing statute contain a penal clause which
sought to penalize in general, violations of the law as well as orders, instructions, rules, or
regulations issued by the Monetary Board. In the case of the Bangko Sentral, the scope of the
penal clause was expanded to include violations of other pertinent banking laws enforced or
implemented by the Bangko Sentral. In the instant case, the acts of petitioners sought to be
penalized are violations of rules and regulations issued by the Monetary Board. These acts are
proscribed and penalized in the penal clause of the repealed law and this proviso for proscription
and penalty was reenacted in the repealing law. We find, therefore, that while Section 34 of
Republic Act No. 265 was repealed, it was nonetheless, simultaneously reenacted in Section 36
of Republic Act No. 7653. Where a clause or provision or a statute for that matter is
simultaneously repealed and reenacted, there is no effect, upon the rights and liabilities which
have accrued under the original statute, since the reenactment, in effect neutralizes the repeal and
continues the law in force without interruption. [32] The rule applies to penal laws and statutes with
penal provisions. Thus, the repeal of a penal law or provision, under which a person is charged
with violation thereof and its simultaneous reenactment penalizing the same act done by him
under the old law, will neither preclude the accuseds prosecution nor deprive the court of its
jurisdiction to hear and try his case.[33] As pointed out earlier, the act penalized before the
reenactment continues to remain an offense and pending cases are unaffected. Therefore, the
repeal of Republic Act No. 265 by Republic Act No. 7653 did not extinguish the criminal
liability of petitioners for transgressions of Circular No. 960 and cannot, under the circumstances
of this case, be made a basis for quashing the indictments against petitioners.

Petitioners, however, point out that Section 36 of Republic Act No. 7653, in reenacting
Section 34 of the old Central Act, increased the penalty for violations of rules and regulations
issued by the Monetary Board. They claim that such increase in the penalty would give Republic
Act No. 7653 an ex post facto application, violating the Bill of Rights.[34]

Is Section 36 of Republic Act No. 7653 an ex post facto legislation?

An ex post facto law is one which: (1) makes criminal an act done before the passage of the
law and which was innocent when done, and punishes such an act; (2) aggravates a crime, or
makes it greater than it was when committed; (3) changes the punishment and inflicts a greater
punishment than the law annexed to the crime when committed; (4) alters the legal rules of
evidence, and authorizes conviction upon less or different testimony than the law required at the
time of the commission of the offense; (5) assuming to regulate civil rights, and remedies only, in
effect imposes penalty or deprivation of a right for something which when done was lawful; and
(6) deprives a person accused of a crime of some lawful protection to which he has become
entitled such as the protection of a former conviction or acquittal, or a proclamation of amnesty.
[35]
 The test whether a penal law runs afoul of the ex post facto clause of the Constitution is:
Does the law sought to be applied retroactively take from an accused any right that was regarded
at the time of the adoption of the constitution as vital for the protection of life and liberty and
which he enjoyed at the time of the commission of the offense charged against him?[36]

The crucial words in the test are vital for the protection of life and liberty. [37] We find,
however, the test inapplicable to the penal clause of Republic Act No. 7653. Penal laws and laws
which, while not penal in nature, nonetheless have provisions defining offenses and prescribing
penalties for their violation operate prospectively.[38] Penal laws cannot be given retroactive
effect, except when they are favorable to the accused.[39] Nowhere in Republic Act No. 7653, and
in particular Section 36, is there any indication that the increased penalties provided therein were
intended to operate retroactively. There is, therefore, no ex post facto law in this case.

On the third issue, petitioners ask us to note that the dollar interest earnings subject of the
criminal cases instituted against them were remitted to foreign banks on various dates between
1983 to 1987. They maintain that given the considerable lapse of time from the dates of the
commission of the offenses to the institution of the criminal actions in 1991 and 1992, the States
right to prosecute them for said offenses has already prescribed. Petitioners assert that the Court
of Appeals erred in computing the prescriptive period from February 1986. Petitioners theorize
that since the remittances were made through the Central Bank as a regulatory authority, the
dates of the alleged violations are known, and prescription should thus be counted from these
dates.

In ruling that the dollar-salting cases against petitioners have not yet prescribed, the court a
quo quoted with approval the trial courts finding that:

[T]he alleged violations of law were discovered only after the EDSA Revolution in
1986 when the dictatorship was toppled down. The date of the discovery of the
offense, therefore, should be the basis in computing the prescriptive period. Since
(the) offenses charged are punishable by imprisonment of not more than five (5) years,
they prescribe in eight (8) years. Thus, only a little more than four (4) years had
elapsed from the date of discovery in 1986 when the cases were filed in 1991 .[40]

The offenses for which petitioners are charged are penalized by Section 34 of Republic Act
No. 265 by a fine of not more than Twenty Thousand Pesos (P20,000.00) and by imprisonment
of not more than five years. Pursuant to Act No. 3326, which mandates the periods of
prescription for violations of special laws, the prescriptive period for violations of Circular No.
960 is eight (8) years.[41] The period shall commence to run from the day of the commission of the
violation of the law, and if the same be not known at the time, from the discovery thereof and
institution of judicial proceedings for its investigation and punishment.[42] In the instant case, the
indictments against petitioners charged them with having conspired with the late President
Ferdinand E. Marcos in transgressing Circular No. 960.Petitioners contention that the dates of
the commission of the alleged violations were known and prescription should be counted from
these dates must be viewed in the context of the political realities then prevailing. Petitioners, as
close associates of Mrs. Marcos, were not only protected from investigation by their influence
and connections, but also by the power and authority of a Chief Executive exercising strong-arm
rule. This Court has taken judicial notice of the fact that Mr. Marcos, his family, relations, and
close associates resorted to all sorts of clever schemes and manipulations to disguise and hide
their illicit acquisitions.[43] In the instant case, prescription cannot, therefore, be made to run from
the dates of the commission of the offenses charged, for the obvious reason that the commission
of those offenses were not known as of those dates. It was only after the EDSA Revolution of
February, 1986, that the recovery of ill-gotten wealth became a highly prioritized state policy,
[44]
pursuant to the explicit command of the Provisional Constitution.[45] To ascertain the relevant
facts to recover ill-gotten properties amassed by the leaders and supporters of the (Marcos)
regime[46] various government agencies were tasked by the Aquino administration to investigate,
and as the evidence on hand may reveal, file and prosecute the proper cases. Applying the
presumption that official duty has been regularly performed, [47] we are more inclined to believe
that the violations for which petitioners are charged were discovered only during the post-
February 1986 investigations and the tolling of the prescriptive period should be counted from
the dates of discovery of their commission. The criminal actions against petitioners, which gave
rise to the instant case, were filed in 1991 and 1992, or well within the eight-year prescriptive
period counted from February 1986.

The fourth issue involves petitioners claim that they incurred no criminal liability for
violations of Circular No. 960 since they were exempted from its coverage.

Petitioners postulate that since the purchases of treasury notes were done through the Central
Banks Securities Servicing Department and payments of the interest were coursed through its
Securities Servicing Department/Foreign Exchange Department, their filing of reports would be
surplusage, since the requisite information were already with the Central Bank. Furthermore,
they contend that the foreign currency investment accounts in the Swiss banks were subject to
absolute confidentiality as provided for by Republic Act No. 6426,[48] as amended by Presidential
Decree Nos. 1035, 1246, and 1453, and fell outside the ambit of the reporting requirements
imposed by Circular No. 960. Petitioners further rely on the exemption from reporting provided
for in Section 10(q), [49] Circular No. 960, and the confidentiality granted to Swiss bank accounts
by the laws of Switzerland.

Petitioners correctly point out that Section 10(q) of Circular No. 960 exempts from the
reporting requirement foreign currency eligible for deposit under the Philippine Foreign
Exchange Currency Deposit System, pursuant to Republic Act No. 6426, as amended. But, in
order to avail of the aforesaid exemption, petitioners must show that they fall within its
scope. Petitioners must satisfy the requirements for eligibility imposed by Section 2, Republic
Act No. 6426.[50] Not only do we find the record bare of any proof to support petitioners claim of
falling within the coverage of Republic Act No. 6426, we likewise find from a reading of Section
2 of the Foreign Currency Deposit Act that said law is inapplicable to the foreign currency
accounts in question. Section 2, Republic Act No. 6426 speaks of deposit with such Philippine
banks in good standing, as maybe designated by the Central Bank for the purpose. [51] The
criminal cases filed against petitioners for violation of Circular No. 960 involve foreign currency
accounts maintained in foreign banks, not Philippine banks. By invoking the confidentiality
guarantees provided for by Swiss banking laws, petitioners admit such reports made. The rule is
that exceptions are strictly construed and apply only so far as their language fairly warrants, with
all doubts being resolved in favor of the general proviso rather than the exception.[52] Hence,
petitioners may not claim exemption under Section 10(q).

With respect to the banking laws of Switzerland cited by petitioners, the rule is that
Philippine courts cannot take judicial notice of foreign laws. [53] Laws of foreign jurisdictions must
be alleged and proved.[54] Petitioners failed to prove the Swiss law relied upon, either by: (1) an
official publication thereof; or (2) a copy attested by the officer having the legal custody of the
record, or by his deputy, and accompanied by a certification from the secretary of the Philippine
embassy or legation in such country or by the Philippine consul general, consul, vice-consul, or
consular agent stationed in such country, or by any other authorized officer in the Philippine
foreign service assigned to said country that such officer has custody.[55] Absent such evidence,
this Court cannot take judicial cognizance of the foreign law invoked by Benedicto and Rivera.

Anent the fifth issue, petitioners insist that the government granted them absolute immunity
under the Compromise Agreement they entered into with the government on November 3,
1990. Petitioners cite our decision in Republic v. Sandiganbayan, 226 SCRA 314
(1993), upholding the validity of the said Agreement and directing the various government
agencies to be consistent with it. Benedicto and Rivera now insist that the absolute immunity
from criminal investigation or prosecution granted to petitioner Benedicto, his family, as well as
to officers and employees of firms owned or controlled by Benedicto under the aforesaid
Agreement covers the suits filed for violations of Circular No. 960, which gave rise to the
present case.

The pertinent provisions of the Compromise Agreement read:

WHEREAS, this Compromise Agreement covers the remaining claims and the cases
of the Philippine Government against Roberto S. Benedicto including his associates
and nominees, namely, Julita C. Benedicto, Hector T. Rivera, x x x
WHEREAS, specifically these claims are the subject matter of the following
cases (stress supplied):

1. Sandiganbayan Civil Case No. 9

2. Sandiganbayan Civil Case No. 24

3. Sandiganbayan Civil Case No. 34

4. Tanodbayan (Phil-Asia)

5. PCGG I.S. No. 1

xxx

WHEREAS, following the termination of the United States and Swiss cases, and also
without admitting the merits of their respective claims and counterclaims presently
involved in uncertain, protracted and expensive litigation, the Republic of the
Philippines, solely motivated by the desire for the immediate accomplishment of its
recovery mission and Mr. Benedicto being interested to lead a peaceful and normal
pursuit of his endeavors, the parties have decided to withdraw and/or dismiss their
mutual claims and counterclaims under the cases pending in the Philippines, earlier
referred to (underscoring supplied);

xxx

II. Lifting of Sequestrations, Extension of Absolute Immunity and Recognition of the

Freedom to Travel

a) The Government hereby lifts the sequestrations over the assets listed in Annex C
hereof, the same being within the capacity of Mr. Benedicto to acquire from the
exercise of his profession and conduct of business, as well as all the haciendas listed
in his name in Negros Occidental, all of which were inherited by him or acquired with
income from his inheritanceand all the other sequestered assets that belong to
Benedicto and his corporation/nominees which are not listed in Annex A as ceded or
to be ceded to the Government.
Provided, however, (that) any asset(s) not otherwise settled or covered by this
Compromise Agreement, hereinafter found and clearly established with finality by
proper competent court as being held by Mr. Roberto S. Benedicto in trust for the
family of the late Ferdinand E. Marcos, shall be returned or surrendered to the
Government for appropriate custody and disposition.

b) The Government hereby extends absolute immunity, as authorized under the

pertinent provisions of Executive Orders Nos. 1, 2, 14 and 14-A, to Benedicto, the
members of his family, officers and employees of his corporations above mentioned,
who are included in past, present and future cases and investigations of the Philippine
Government, such that there shall be no criminal investigation or prosecution against
said persons for acts (or) omissions committed prior to February 25, 1986, that may be
alleged to have violated any laws, including but not limited to Republic Act No. 3019,
in relation to the acquisition of any asset treated, mentioned or included in this
Agreement.

x x x[56]

In construing contracts, it is important to ascertain the intent of the parties by looking at the
words employed to project their intention. In the instant case, the parties clearly listed and
limited the applicability of the Compromise Agreement to the cases listed or identified therein.
We have ruled in another case involving the same Compromise Agreement that:

[T]he subject matters of the disputed compromise agreement are Sandiganbayan Civil
Case No. 0009, Civil Case No. 00234, Civil Case No. 0034, the Phil-Asia case before
the Tanodbayan and PCGG I.S. No. 1. The cases arose from complaints for
reconveyance, reversion, accounting, restitution, and damages against former
President Ferdinand E. Marcos, members of his family, and alleged cronies, one of
whom was respondent Roberto S. Benedicto.[57]

Nowhere is there a mention of the criminal cases filed against petitioners for violations of
Circular No. 960. Conformably with Article 1370 of the Civil Code, [58] the Agreement relied upon
by petitioners should include only cases specifically mentioned therein. Applying the parol
evidence rule,[59] where the parties have reduced their agreement into writing, the contents of the
writing constitute the sole repository of the terms of the agreement between the parties.
[60]
Whatever is not found in the text of the Agreement should thus be construed as waived and
abandoned.[61] Scrutiny of the Compromise Agreement will reveal that it does not include all
cases filed by the government against Benedicto, his family, and associates.
 Additionally, the immunity covers only criminal investigation or prosecution against said
persons for acts (or) omissions committed prior to February 25, 1986 that may be alleged to have
violated any penal laws, including but not limited to Republic Act No. 3019, in relation to the
acquisition of any asset treated, mentioned, or included in this Agreement. [62] It is only when the
criminal investigation or case involves the acquisition of any ill-gotten wealth treated,
mentioned, or included in this Agreement [63] that petitioners may invoke immunity. The record is
bereft of any showing that the interest earnings from foreign exchange deposits in banks abroad,
which is the subject matter of the present case, are treated, mentioned, or included in the
Compromise Agreement. The phraseology of the grant of absolute immunity in the Agreement
precludes us from applying the same to the criminal charges faced by petitioners for violations of
Circular No. 960. A contract cannot be construed to include matters distinct from those with
respect to which the parties intended to contract.[64]

In sum, we find that no reversible error of law may be attributed to the Court of Appeals in
upholding the orders of the trial court denying petitioners Motion to Quash the Informations in
Criminal Case Nos. 91-101879 to 91-101883, 91-101884 to 91-101892, and 92-101959 to 92-
101969. In our view, none of the grounds provided for in the Rules of Court [65] upon which
petitioners rely, finds application in this case.

One final matter. During the pendency of this petition, counsel for petitioner Roberto S.
Benedicto gave formal notice to the Court that said petitioner died on May 15, 2000. The death
of an accused prior to final judgment terminates his criminal liability as well as the civil liability
based solely thereon.[66]

WHEREFORE, the instant petition is DISMISSED. The assailed consolidated Decision of

the Court of Appeals dated May 23, 1996, in CA-G.R. SP No. 35928 and CA-G.R. SP No.
35719, is AFFIRMED WITH MODIFICATION that the charges against deceased petitioner,
Roberto S. Benedicto, particularly in Criminal Cases Nos. 91-101879 to 91-101883, 91-101884
to 101892, and 92-101959 to 92-101969, pending before the Regional Trial Court of Manila,
Branch 26, are ordered dropped and that any criminal as well as civil liability ex delicto that
might be attributable to him in the aforesaid cases are declared extinguished by reason of his
death on May 15, 2000. No pronouncement as to costs.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LOPE

LIWANAG y BUENAVENTURA, SANDY SIMBULAN y GARCIA and
RAMIL VENDIBIL y CASTRO, accused.
LOPE LIWANAG y BUENAVENTURA, accused-appellant.

DECISION
YNARES-SANTIAGO, J.:

Accused-appellant Lope Liwanag y Buenaventura, and his co-accused Randy Simbulan and
Ramil Vendibil, were charged with the crime of highway robbery with multiple rape in an
Information[1]which reads, thus:

That on or about the 27th day of April, 1992, in the Municipality of Paraaque, Metro
Manila, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, armed with an icepick, conspiring and confederating together and
mutually helping and aiding one another, with intent to gain and by means of force,
violence and intimidation, did then and there willfully, unlawfully and feloniously,
take, rob and divest from the complainant, Corazon Hernandez y Delfin the amount of
P60.00; That on the occasion thereof, the above-named accused, conspiring and
confederating together and each of them mutually helping and aiding one another and
by means of force and intimidation, did, then and there willfully, unlawfully and
feloniously one at a time have carnal knowledge of the said complainant, inside the
Levitown Subdivision, Paraaque, Metro Manila, against her will and consent;

That accused Randy Simbulan y Garcia, who is allegedly 14 years old, has acted with
discernment in the commission of the offense; and

That the aggravating circumstance of that means employed or circumstance brought

about which add ignominy to the natural effect of the act where one of the accused, by
means of force and intimidation, caused the victim to suck his penis made the effect of
the crime more humiliating to the victim, attended the commission of the offense.

CONTRARY TO LAW.

During the arraignment, all of them pleaded not guilty to the charge. Accused Randy
Simbulan and Ramil Vendibil were earlier released on recognizance, and were later ordered
rearrested for their failure to appear at the scheduled hearings. However, the warrants for their
arrest were not implemented. Trial on the merits, thus, ensued only against accused-appellant
Lope Liwanag y Buenaventura.
Complainant Corazon Hernandez was on her way home to Paraaque at around 1:00 oclock
in the early morning of April 27, 1992. Upon reaching the tricycle terminal at Doa Soledad St.,
Better Living Subdivision, Paraaque, Metro Manila, she was offered by tricycle driver Ramil
Vendibil a special trip, which means that she would be brought right in front of her house. She
agreed and boarded the tricycle.While they were about to leave, Randy Simbulan and Lope
Liwanag also rode the tricycle behind the driver. When they reached India Street, Lope Liwanag
entered the sidecar and sat beside complainant. He immediately grabbed complainants shoulder,
pointed an instrument at the side of her neck, and declared a hold-up. Surprised and fearing for
her life, complainant told accused-appellant that she only had sixty pesos (P60.00) in her
bag. Accused-appellant Lope Liwanag instructed Randy Simbulan to get her bag.
While the tricycle was traversing the road leading to the municipal building of Paraaque,
accused-appellant informed complainant that since they could not get anything from her anyway,
she might as well submit herself to them. Then, accused-appellant began kissing complainant
and touching her private parts. Randy Simbulan, meanwhile, inserted his finger into
complainants vagina.
As they were entering Levitown Subdivision, accused-appellant ordered complainant to act
naturally while they passed the guardhouse. Once they got through, accused-appellant asked her
to give in to his desire, and then, he again began touching her private parts. Complainant
answered that she would rather be killed than accede to his desire. This prompted accused-
appellant to hit her with an icepick on the abdomen.
Upon reaching a vacant lot, accused-appellant ordered Vendibil to stop the tricycle. He then
tried to strangle complainant, causing her to fall down from her seat and lose
consciousness. When she regained consciousness, she was forced to board the tricycle. Again,
they rode around the village. Accused-appellant tried to strangle her with a bandana and ordered
her to remove her underwear. When she refused, accused-appellant himself removed her
underwear, opened his pant zipper and forced her to sit on his lap. Complainant struggled, so
accused-appellant ordered the tricycle to stop and dragged complainant out. Accused-appellant
then brought complainant to a grassy vacant lot and forced himself on her. After satisfying his
lust, they again boarded the tricycle and accused-appellant informed complainant that his
companions would follow. Complainants pleas were in vain. After a few minutes of driving
around, they came upon another vacant lot where accused-appellant and Vendibil dragged
complainant. There, Vendibil forced complainant to put his penis into her mouth. Unsatisfied,
Vendibil forced her to lie down and succeeded in having sexual intercourse with her while
accused-appellant and Simbulan watched. Thereafter, Simbulan took his turn. After he satisfied
his lust, they talked of killing complainant.
Complainant pleaded for her life and, in desperation, she offered them money in exchange
for her life. Accused-appellant asked her if she can produce P10,000.00, but she said she could
not. Accused-appellant lowered his demand to P5,000.00. They negotiated until they finally
agreed on the sum of P2,000.00. Accused-appellant instructed complainant to deliver the money
at Guadalupe, Makati. She was to place the amount inside a bag together with a sandwich she
was to buy at Burger Machine. They agreed to meet at 11:30 that same morning. When they
finally let go of her, complainant proceeded to a church. At daybreak, she went home and told
her mother the whole incident. Together, they proceeded to the Fort Bonifacio police station and
reported the matter. The police, in turn, devised an entrapment operation.
At the appointed hour, complainant went to Guadalupe, Makati, bringing with her an
envelope containing pieces of plain paper. Accused-appellant arrived after 45
minutes. Complainant handed the envelope to him, then she ran away. Accused-appellant also
ran and boarded a bus, but he was collared and arrested by the police.
Dr. Louella Nario, Medico Legal Officer of the National Bureau of Investigation conducted
an examination on the complainant and issued a medical certificate[2] with the following findings:
Extragenital Physical Injuries:

Abrasions, linear, leg, right, upper third, anterior aspect, 4.8 cms., in length and left,
lower third, anterior aspect, 4.7 cm. in length.

Contused abrasion, epigastric region, 2.4 x 0.3 cm.

Contusions, reddish, mandibular region, right side, 1.8 x 1.5 cm. and left side, 2.0 x
1.0 cms.; neck, lateral aspect, right side, 5.5 x 0.5 cms., and 9.8 x 0.5 cms. and 2.5 x
0.5 cms. deltoid region, left side, 2.4 x 1.3 cms. purplish, deltoid region, left side, 4.2
x 2.5 cms.

Genital Examination:

Pubic hair, fully grown, abundant. Labia majora and minora, gaping. Fourchette,
lax. Vestibular mucosa, congested, with fresh superficial abrasion at the fossa
navicularis. Hymen, thick, short, intact.Hymenal orifice, annular, admits a tube, 2.0
cms., in diameter with moderate resistance. Vagina walls, tight. Rugosities, prominent.

Conclusion:

1. The above-described extragenital physical injuries noted on the body of the subject
at the time of examination.

2. Genital injury present.

Accused-appellant denied the accusation against him. He claimed that at around 12:00
oclock midnight of April 27, 1992, he was at his house at Texas Street, Better Living
Subdivision, Paraaque, Metro Manila. His uncle, Emilio Changco, dropped by and, together with
Ponciano Buenaventura and Hermenegildo Liwanag, they had a drinking session up to 3:00
oclock in the morning. At around 4:00 oclock in the morning, Changco left and accused-
appellant went to sleep. He woke up at 7:30 in the morning to prepare for his trip to San Miguel,
Bulacan to see his grandfather.
He alleged that while waiting for a ride in front of Jollibee at Guadalupe, Makati, he was
arrested by policemen in civilian clothes for being a rebel soldier, based on a mark on his right
fist indicating his membership in the Guardians Luzon, an association of soldiers. He was
brought to Fort Bonifacio where he allegedly met for the first time Randy Simbulan and Ramil
Vendibil. He claimed that the three of them were beaten and subjected to electric shocks. He also
claimed that policemen forced his co-accused to point to him.
On April 17, 1995, a decision[3] was rendered by the Regional Trial Court of Makati, Branch
138, the dispositive portion of which reads:
WHEREFORE, the Court finds accused Lope Liwanag y Buenaventura GUILTY
beyond reasonable doubt of having violated Presidential Decree No. 532, known as
the Anti-Piracy and Anti-Highway Robbery Law of 1974. Considering that on the
occasion of the highway robbery, rape was committed, a situation which calls for the
imposition of death penalty under Presidential Decree No. 532 but which penalty was
still proscribed at the time of the commission of the offense alleged in the
Information, said accused is hereby sentenced to suffer the penalty of reclusion
perpetua, the penalty next lower in degree (People v. Miranda, 235 SCRA 202). He is
further ordered to indemnify the complainant Corazon Hernandez of the amount of
One Million Pesos (P1,000,000.00) representing moral damages; P20,000.00 as
litigation expenses and attorneys fees and to return the P60.00 taken from her. Filing
fees due on the award shall be a lien on the amount which may be recovered by the
complainant from the accused.

As to the two other co-accused, Randy Simbulan and Ramil Vendibil, trial of the case
shall therefore continue.

Aggrieved by the trial courts decision, accused-appellant interposed the instant appeal
assigning as errors the following:

1. The trial court erred in convicting accused-appellant notwithstanding the fact that
he was deprived of his constitutional right to effective and competent counsel, and,
consequently, other constitutional rights afforded an accused;

2. The trial court erred in convicting accused-appellant notwithstanding that there was
no sufficient evidence positively identifying him as the perpetrator of the crime
charged;

3. The trial court erred in convicting accused-appellant in spite of the inconsistencies

that tainted the evidence for the prosecution;

4. The trial court erred in convicting accused-appellant in spite of the improbability of

the manner by which the crime was allegedly committed;

5. The trial court erred in convicting accused-appellant inspite of complainants failure

to offer any resistance prior to and even during her alleged rape; and

6. The trial court erred in disregarding the defense of accused-appellant as a mere

alibi.

Accused-appellant submits that he was deprived of his constitutional right to counsel under
Article III, Section 14, (2) of the 1987 Constitution which provides, thus:
In all criminal prosecutions, the accused shall be presumed innocent until the contrary
is proved, and shall enjoy the right to be heard by himself and counsel, x x x. (Italics
supplied)

As a consequence, accused-appellant claims that from the time he was arrested up to the
time of his conviction, he was deprived of his other constitutional rights, particularly his right to
be secure in his person against unreasonable searches and seizures, [4] his right to preliminary
investigation,[5] and his right to bail.[6]
In addition, accused-appellant claims that the assistance extended to him by his former
counsel was ineffective to the extent that private complainant, as well as prosecution witnesses
SPO1 Armando P. Sevilla and Editha Hernandez, were hardly cross-examined, while Dra.
Louella Nario was not cross-examined at all.
In any case, accused-appellant claims that he could not have committed the crime being
imputed to him as he was engaged in a drinking session at the very moment when the alleged
crime was committed.
Accused-appellant maintains that the trial court erred in convicting him because: 1) the
prosecution failed to provide sufficient evidence positively identifying him as the perpetrator of
the crime; 2) inconsistencies tainted the prosecution evidence; 3) the manner by which the crime
was committed was improbable; and, 4) complainant failed to offer any resistance prior to and
even during her alleged rape.
This appeal revolves primarily on the issue of whether accused-appellant was denied his
constitutionally guaranteed right to be heard by himself and counsel. He argues that his right to
be heard through his counsel means that he should be effectively assisted by counsel throughout
the proceedings, from the time he was arrested up to the time judgment is rendered.
The records show that at the start of the proceedings before the trial court, accused-appellant
was represented by counsel de officio, Atty. William T. Uy of the Public Attorneys Office. In the
middle of the trial, accused-appellant retained the services of counsel de parte Atty. Bienvenido
R. Brioso, replacing Atty. Uy. After the trial court rendered the judgment of conviction, Atty.
Brioso filed the Notice of Appeal on behalf of accused-appellant. Atty. Brioso, however, failed to
file the appellants brief because of the refusal of accused-appellants mother to transmit the entire
records of the case to him. Thus, accused-appellant was required to manifest whether he still
desired to be represented by Atty. Brioso in this appeal. Upon accused-appellants failure to reply,
Atty. Francis Ed. Lim was appointed counsel de officio.
There is no dispute that accused-appellant was provided with a counsel de officio who
assisted him during the arraignment and conducted the cross examination of all prosecution
witnesses as well as his direct examination. Thereafter, from the time he was cross-examined up
to the presentation of other defense witnesses, he was assisted by a counsel of his choice.
Accused-appellants citation of People v. Holgado[7] and Powell v. Alabama,[8] insofar as the
right to be heard by counsel is concerned, is misleading. Both cases only defined the right to be
heard by counsel as the right to be assisted by counsel. It cannot be inferred from these cases that
the right to be heard by counsel presupposes the right to an intelligent counsel. The requirement
is not for counsel to be intelligent, but to be effective.
 Jurisprudence defined the meaning of effective counsel only in the light of Article III,
Section 12 (1) of the Constitution, which refers to the right of persons under custodial
investigation. In People v. Lucero,[9] the rationale for this constitutional right was elucidated by
this Court, to wit:

The 1987 Constitution requires that a person under investigation for the commission
of a crime should be provided with counsel. We have constitutionalized the right to
counsel because of our hostility against the use of duress and other undue influence in
extracting confessions from a suspect. Force and fraud tarnish confessions and render
them inadmissible. In providing for said right, this Court has held in the same case
that when the Constitution requires the right to counsel, it did not mean any kind of
counsel but effective and vigilant counsel. The requirements of effectiveness and
vigilance of counsel during that stage before arraignment were for the purposes of
guarding against the use of duress and other undue influence in extracting
confessions which may taint them and render them inadmissible. (Italics supplied)

On the other hand, Article III, Section 14 (2) of the 1987 Constitution requires that the
accused shall enjoy the right to be heard by himself and counsel. The reason for the latter
provision was explained in People v. Holgado, thus:

One of the great principles of justice guaranteed by our Constitution is that no person
shall be held to answer for a criminal offense without due process of law, and that all
accused shall enjoy the right to be heard by himself and counsel. In criminal cases
there can be no fair hearing unless the accused be given an opportunity to be heard by
counsel. The right to be heard would be of little avail if it does not include the right to
be heard by counsel. Even the most intelligent or educated may have no skill in the
science of the law, particularly in the rules of procedure, and, without counsel, he may
be convicted not because he is guilty but because he does not know how to establish
his innocence. And this can happen more easily to persons who are ignorant or
uneducated. It is for this reason that the right to be assisted by counsel is deemed so
important that it has become a constitutional right and it is so implemented that under
our rules of procedure it is not enough for the Court to apprise an accused of his right
to have an attorney, it is not enough to ask him whether he desires the aid of an
attorney, but it is essential that the court should assign one de oficio for him if he so
desires and he is poor or grant him a reasonable time to procure an attorney of his
own.[10] (Italics supplied)

In essence, the right to be heard by counsel simply refers to the right to be assisted by
counsel for the purpose of ensuring that an accused is not denied the collateral right to due
process, a fundamental right which cannot be waived by an accused. The underlying basis for
due process is the concept of fairness, without which there can be no justice. In other words,
there can be no due process accorded an accused if he is not given the right to be heard through
counsel or assisted by counsel. It follows that in order to be heard, and therefore be accorded due
process, the assistance given by counsel must be effective as implied in the rationale of Article
III, Section 14 (2). In this sense, this Court subscribes to American jurisprudence when it held
that [t]he right of an accused to counsel is beyond question a fundamental right. Without counsel,
the right to a fair trial itself would be of little consequence, for it is through counsel that the
accused secures his other rights. In other words, the right to counsel is the right to effective
assistance of counsel.[11]
In the light of the above ratiocination, accused-appellant contends that the right to be heard
by counsel is the right to effective assistance of counsel. Citing Strickland v. Washington,
[12]
accused-appellant contends that the assistance rendered by counsel is ineffective or is
defective if the following elements are present: (1) that counsels performance was deficient,
which requires a showing that counsel was not functioning as the counsel guaranteed the
defendant by the Sixth Amendment; and (2) that the deficient performance prejudiced the
defense, which requires a showing that counsels errors were so serious as to deprive the
defendant of a fair trial, a trial which result is reliable. Accused-appellant claims that the
assistance afforded him by his counsel during the course of the trial was ineffective since the
counsel de officio failed to safeguard his rights necessary for the reversal of his conviction.
One of the rights which accused-appellant contends his counsel de officio failed to safeguard
was his right to be secure in his person against unreasonable searches and seizures as enshrined
in the Bill of Rights. He claims that his right was violated when he was arrested without a
warrant which his counsel should have contested.
Accused-appellants argument is not well-taken. As reiterated in People v. Costelo:[13]

[A]ppellants failure to quash the information, his participation in the trial and
presenting evidence in his behalf, placed him in estoppel to make such challenge. He
has patently waived any objection or irregularities and is deemed as having submitted
himself to the jurisdiction of the court. It should be noted that the legality of arrest
affects only the jurisdiction of the court over the person of the accused.Consequently,
if objection on such ground is waived, the illegality of the arrest is not sufficient
reason for setting aside an otherwise valid judgment rendered after the trial, free from
error. The technicality cannot render the subsequent proceedings void and deprive the
State of its right to convict the guilty when the facts on the record point to the
culpability of the accused. (Italics supplied)

Any objection involving a warrant of arrest must be made before he enters his plea,
otherwise the objection is deemed waived.[14]
Accused-appellant, likewise, claims that he was deprived of his right to a preliminary
investigation. Had his counsel de oficio been effective, he should have filed the proper motion on
his behalf.
There is no merit in this contention.
Considering that accused-appellant submitted himself to the jurisdiction of the trial court, he
is deemed to have waived his right to preliminary investigation.
As aptly stated in People v. Buluran:[15]
The failure to accord appellants their right to preliminary investigation did not impair
the validity of the information nor affect the jurisdiction of the trial court. While the
right to preliminary investigation is a substantive right and not a mere formal or
technical right of the accused, nevertheless, the right to preliminary investigation is
deemed waived when the accused fails to invoke it before or at the time of entering a
plea at arraignment. It appearing that appellants only raised the issue of lack of
preliminary investigation during appeal, their right to a preliminary investigation was
deemed waived when they entered their respective pleas of not guilty.[16]

Accused-appellant next contends that he was deprived of his right to bail. He contends that
had his counsel de officio been effective, he would have filed the proper motion.
The contention is without any merit. As ruled by this Court in People v. Manes:[17]

The issue of bail has been rendered academic by the conviction of the accused. When
an accused is charged with a capital offense, or an offense punishable by reclusion
perpetua, or life imprisonment or death, and evidence of guilt is strong, bail must be
denied, as it is neither a matter of right nor of discretion.

In the case of Strickland,[18] the United States Supreme Court:

Judicial scrutiny of counsels performance must be highly deferential. It is all too

tempting for a defendant to secondguess counsels assistance after conviction or
adverse sentence, and it is all too easy for a court, examining counsels defense after it
has proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable. A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the circumstances
of counsels challenged conduct, and to evaluate the conduct from counsels perspective
at the time. Because of the difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsels conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered
sound trial strategy. There are countless ways to provide effective assistance in any
given case. Even the best criminal defense attorneys would not defend a particular
client in the same way.

In showing the ineffectiveness of the assistance rendered by counsel de officio, accused-

appellant points out the following:

The private complainant, whose testimony was the principal basis of the conviction,
was hardly cross-examined. The same is true with prosecution witnesses SPO1
Armando P. Sevilla and Editha Hernandez.In fact, prosecution witness Dra. Louella
Nario was not cross-examined at all.
As a result of the insufficient cross-examination of the witnesses for the prosecution,
particularly the private complainant, the defense of the accused-appellant failed to
bring to the attention of the trial court several matters which amplify the
improbability, if not impossibility, in the complainants testimony on how the crime
was allegedly committed. Thus, the defense was not able to highlight several crucial
points, among which are: (1) the impossibility that the alleged crime, particularly the
rape, was committed in a populated area - an inhabited and well-developed
subdivision in Paraaque, with a 24-hour store (Burger Machine) at that - without being
noticed; (2) the fact that, assuming that accused-appellant had carnal knowledge of the
complainant, the latter did not offer any form of resistance; and (3) the impossibility
that after the crime charged was allegedly committed, accused-appellant and his co-
accused gentlemanly accompanied complainant to a place of her choice (the church).

Moreover, several questions remained unanswered. For example (1) What time did the
complainant report the incident to the police?; (2) How long did the police plan the
alleged entrapment?; (3) Were there other officers involved in the entrapment?; and
(4) Why was the money and other materials used for entrapment not presented in
evidence?

Furthermore, there were also no attempts to impeach the testimony of the private
complainant on the scene of the crime through the use of contradictory evidence as
provided in the Rules. For instance, accused-appellants counsel could have presented
a resident of the subdivision where the crime was allegedly committed to describe the
area. Such witness can establish: (1) whether or not the area where the crime was
allegedly committed was indeed too dark for anyone to notice the commission of the
alleged crime; (2) whether or not the houses in the subdivision are indeed too far apart
that occurrences outside one house would not be discernible from within; and (3)
whether or not the location of the houses in the subdivision is such that it would
indeed be useless for a woman, faced with the threat of rape to even attempt to ask for
help.

We are not convinced. The assistance extended by Attorney Uy of the Public Attorneys
Office was sufficiently effective. As noted by the Office of the Solicitor General, to wit:

The pertinent transcripts of stenographic notes would show that appellants counsel de
oficio, Atty. William Uy, cross-examined the private complainant extensively as well
as two other prosecution witnesses (SPO1 Sevilla and Edith Hernandez). That said
counsel opted not to cross-examine the prosecution expert witness, Dr. Louella Nario,
is of no moment because said witness merely explained in court her findings and
conclusions that she had arrived at after conducting the medical examination on the
private complainant [Exhibit C] (TSN, March 30, 1993, pp. 10-12). In fact, at one
point, Atty. Uy raised an objection to the private prosecutors question on how private
complainants genital injuries were sustained for being incompetent to answer, which
objection was impliedly sustained by the trial judge (Ibid., p. 13).

In assessing the effectiveness of counsels assistance, the Strickland standard invoked by

accused-appellant is too stringent for application in Philippine judicial setting. Strickland only
seeks to ensure that the adversarial testing process is present in a case by requiring that the
assistance rendered by counsel be effective. The presence of an adversarial testing process, in
other words, ensures that the trial is fair by according the accused due process through the
effective assistance of counsel.
While fairness is likewise the object of Article III, Section 14 (2) of the Philippine
Constitution, the assistance afforded by counsel to an accused in light of the Philippine
constitutional requirement need only be in accordance with the pertinent provisions of the Rules
of Court, the Code of Professional Responsibility and the Canons of Professional Ethics. In
Philippine judicial setting, a counsel assisting an accused is presumed to be providing all the
necessary legal defense which are reasonable under the circumstances in accordance with said
norms.
In this regard, a counsel assisting an accused is guided by the following provisions of
Section 20 of Rule 138 of the Rules of Court:

Sec. 20. Duties of attorneys. -- It is the duty of an attorney:

xxxxxxxxx

(c) To counsel or maintain such actions or proceedings only as appear to him to be

just, and such defenses only as he believes to be honestly debatable under the law;

(d) To employ, for the purpose of maintaining the causes confided to him, such means
only as are consistent with truth and honor, and never seek to mislead the judge or any
judicial officer by an artifice or false statement of fact or law;

xxxxxxxxx

(h) Never to reject, for any consideration personal to himself, the cause of the
defenseless or oppressed;

(i) In the defense of a person accused of crime, by all fair and honorable means,
regardless of his personal opinion as to the guilt of the accused, to present every
defense that the law permits, to the end that no person may be deprived of life or
liberty, but by due process of law. (Italics supplied)

The following canons of the Code of Professional Responsibility, likewise, provide:

Canon 2 -- A lawyer shall make his legal services available in an efficient and
convenient manner compatible with the independence, integrity and effectiveness of
the profession.

xxxxxxxxx

Canon 12 -- A lawyer shall exert every effort and consider it his duty to assist in the
speedy and efficient administration of justice.

xxxxxxxxx

Canon 17 -- A lawyer owes fidelity to the cause of his client and he shall be mindful
of the trust and confidence reposed in him.

Canon 18 -- A lawyer shall serve his client with competence and diligence.

xxxxxxxxx

Canon 19 -- A lawyer shall represent his client with zeal within the bounds of the law.

Lastly, the Canons of Professional Ethics provide:

4. A lawyer assigned as counsel for an indigent prisoner ought not to ask to be

excused for any trivial reason and should always exert his best efforts in his behalf.

5. It is the right of the lawyer to undertake the defense of a person accused of crime,
regardless of his personal opinion as to the guilt of the accused; otherwise, innocent
persons, victims only of suspicious circumstances, might be denied proper
defense. Having undertaken such defense, the lawyer is bound, by all fair and
honorable means, to present every defense that the law of the land permits, to the end
that no person may be deprived of life or liberty but by due process of law.

15. x x x x x x x x x

The lawyer owes entire devotion to the interest of the client, warm zeal in the
maintenance and defense of his rights and the exertion of his utmost learning and
ability, to the end that nothing be taken or be withheld from him, save by the rules of
law, legally applied. No fear of judicial disfavor or public unpopularity should restrain
him from the full discharge of his duty. In the judicial forum the client is entitled to
the benefit of any and every remedy and defense that is authorized by the law of the
land, and he may expect his lawyer to assert every such remedy or defense. But it is
steadfastly to be borne in mind that the great trust of the lawyer is to be performed
within and not without the bounds of the law. The office of attorney does not permit,
much less does it demand of him for any client, violation of law or any manner of
fraud or chicanery. He must obey his own conscience and not that of his client.

The above-cited norms are more than adequate to guide a counsels conduct in the
performance of his duty to assist a client in an effective manner as required by Article III,
Section 14 (2). Said constitutional provision is patterned after the Sixth Amendment of the
American Constitution. As in Article III, Section 14 (2), the Sixth Amendment refers simply to
counsel, not specifying particular requirements of effective assistance. It relies instead on the
legal professions maintenance of standards sufficient to justify the laws presumption that counsel
will fulfill the role in the adversary process that the Amendment envisions. The proper measure
of attorney performance remains simply reasonableness under prevailing professional norms.[19]
Coupled with the presumption that counsels performance was reasonable under the
circumstances, as long as the trial was fair in that the accused was accorded due process by
means of an effective assistance of counsel, then the constitutional requirement that an accused
shall have the right to be heard by himself and counsel is satisfied. The only instance when the
quality of counsels assistance can be questioned is when an accused is deprived of his right to
due process. Otherwise, there is the danger that questioning counsels acts or omissions in the
conduct of his duties as counsel for an accused may breed more unwanted consequences than
merely upholding an accuseds constitutional right or raising the standard of the legal profession.
In the case at bar, accused-appellants right to due process has been observed and the trial
was conducted in a fair manner. Corollarily, this Court sees no reason to doubt or overcome the
presumption that counsel de officio reasonably assisted accused-appellant in accordance with the
prevailing norms of professional conduct and his sworn duties as an officer of the court.
Based on the findings of the trial court, accused-appellant was not at all prejudiced by the
alleged ineffectiveness of his counsel. The alleged failures by his counsel to safeguard his rights
from the time he was arrested up to the time he was sentenced and the alleged inadequacies in
the direct and cross-examinations of prosecution witnesses were ultimately inconsequential to
the eventual outcome of the case. If at all, the outcome was the result of the strength of the
prosecution evidence rather than the failures and inadequacies in the conduct of the defense as
shown by the following:
First, counsels decision to adopt the defense of denial and alibi as part of the trial strategy
merely highlighted the strength of the prosecution evidence. While its adoption may have been
dictated by the factual circumstances of the case as perceived by accused-appellant, however,
denial is an inherently weak defense vis--vis the positive and categorical assertion of prosecution
witnesses. In fact, the trial court found accused-appellants denial to be self-serving.
Like denial, accused-appellants alibi was not looked upon with favor by the trial court. Not
only is it one of the weakest defenses due to its being capable of easy fabrication, it also cannot
prevail over witnesses positive identification of accused-appellant as the perpetrator of the
crime. In any event, for the defense of alibi to prosper, it is not enough that the accused can prove
his being at another place at the time of its commission, it is likewise essential that he can show
physical impossibility for him to be at the locus delicti.[20] The trial court found accused-
appellants and his witnesses testimonies on the formers alibi unconvincing.
 In the instant case, accused-appellant claims that he was engaged in a drinking session with
some persons at their house in Texas Street, Better Living Subdivision at about the time when the
crime was committed until 3:00 oclock in the morning. However, Better Living Subdivision is
adjacent to Levitown Subdivision, where the rape was committed. In fact, it was in Better Living
Subdivision where complainant was robbed and sexually molested prior to being raped at
Levitown Subdivision.
Second, accused-appellant also points to alleged discrepancies between some of
complainants accounts in her sworn statement and some of her declarations in her direct
testimony regarding the position of accused relative to that of complainant, the kind of
instrument used to threaten complainant and the person who got complainants money. The
apparent discrepancies, however, only refer to immaterial or irrelevant details. Complainant was
consistent in her narration in her sworn statement as well as during her direct examination and
even in the cross-examination regarding the roles played by the three accused in the commission
of the crime.
A Sinumpaang Salaysay or a sworn statement is merely a short narrative subscribed to by
the complainant in question and answer form. Thus, it is only to be expected that it is not as
exhaustive as ones testimony in open court. The contradictions, if any, may be explained by the
fact that an affidavit can not possibly disclose the details in their entirety, and may inaccurately
describe, without deponent detecting it, some of the occurrences narrated. Being taken ex-parte,
an affidavit is almost always incomplete and often inaccurate, sometimes from partial
suggestions, and sometimes from the want of suggestions and inquiries. It has thus been held that
affidavits are generally subordinated in importance to open court declarations because the former
are often executed when an affiants mental faculties are not in such a state as to afford her a fair
opportunity of narrating in full the incident which has transpired. Further, affidavits are not
complete reproductions of what the declarant has in mind because they are generally prepared by
the administering officer and the affiant simply signs them after the same have been read to her.
[21]

In People v. Mangat,[22] this Court has reiterated the doctrine that discrepancies between
sworn statements and testimonies made at the witness stand do not necessarily discredit the
witness. Sworn statements/affidavits are generally subordinated in importance to open court
declarations because the former are often executed when an affiants mental faculties are not in
such a state as to afford him a fair opportunity of narrating in full the incident which has
transpired. Testimonies given during trials are much more exact and elaborate. Thus testimonial
evidence carries more weight than statements/affidavits.
Third, accused-appellant alleges that complainant failed to offer any resistance prior to or
even during her alleged rape thereby concluding that it could have been consensual. She did not
ask for help when the alleged rape took place in a populated area. She likewise did not try to
escape when she had the opportunity to do so.
This Court finds the above argument specious and unmeritorious. It should be noted that
accused-appellant was brandishing an icepick which clearly showed his readiness to use the
same by hitting complainant with it. Besides, she testified that she was already weak and tired to
be able to do anything against three malefactors who were stronger than her. It would have been
foolhardy for complainant to resist the accused considering her weakened condition. The
workings of a human mind placed under emotional stress are unpredictable and people react
differently - some may shout, some may faint, and some may be shocked into insensibility while
others may openly welcome the intrusion. In any case, the law does not impose upon a rape
victim the burden of proving resistance. Physical resistance need not be established in rape when
intimidation is exercised upon the victim and she submits herself against her will to the rapists
lust because of fear for life and personal safety.[23]
Lastly, complainant positively pointed at accused-appellant as one of the perpetrators of the
crime. Accused-appellant could not show any reason why complainant would point him as one
of the perpetrators of the crime. It is settled that where there is no evidence to show any dubious
reason or improper motive why a prosecution witness would testify falsely against an accused or
falsely implicate him in a crime, the testimony is worthy of full faith and credit.[24]
The trial court ordered accused-appellant to pay complainant moral damages in the amount
of P1,000,000.00. This award must be reduced to P50,000.00. The purpose of this award is not to
enrich the victim but to compensate her for injuries to her feelings. Moreover, moral damages for
rape is fixed at P50,000.00.[25]
WHEREFORE, in view of the foregoing, the decision of the Regional Trial Court of
Makati, Branch 138, finding accused-appellant Lope Liwanag guilty of violating P.D. No. 532
and sentencing him to suffer the penalty of reclusion perpetua, to indemnify complainant
Corazon Hernandez P20,000.00 as litigation expenses and attorneys fees and to return the P60.00
is AFFIRMED with the MODIFICATION that the amount of moral damages is reduced to
P50,000.00. Costs against accused-appellant.
SO ORDERED.

PUBLIC UTILITIES DEPARTMENT, OLONGAPO CITY, petitioner,

vs. HON. TEOFISTO T. GUINGONA, JR., Secretary of the Department
of Justice, and CONRADO L. TIU, respondents.

DECISION

BUENA, J.:

This is a petition for review of the Decision of the Court of Appeals promulgated on August
[1]

22, 1997 in CA-G.R. SP No. 39689, which affirmed the Resolution dated November 6, 1995 of
respondent Secretary of Justice Teofisto Guingona which directed the Acting City Prosecutor of
Olongapo City to move for the withdrawal of the informations against the respondent for theft of
electricity in relation to P.D. 401, if the same were already filed in court, xxx.

The antecedent facts of the case are undisputed:

 Private respondent Conrado L. Tiu is the owner and manager of Contis Plaza, a supermarket
located at Rizal Avenue corner 21 Street, Olongapo City, and another establishment located at
st

No. 46 Fendler Street, East Tapinac, Olongapo City. The electric power consumption of private
respondent is supplied by petitioner Public Utilities Department.

Petitioner claimed that pursuant to its Power Loss Reduction Program, implemented with the
assistance of Meralco, a digital recording ammeter, or load logger, was installed on November
25, 1992 at the primary line of Contis Plaza to monitor its actual power utilization. It was later
discovered that the KWH electric meter of Contis Plaza failed to register the actual amount of its
power consumption. The power loss to petitioner was computed at 86.08%. For the purpose of
pinpointing the source of the power loss, private respondent was informed by petitioner that the
KWH electric meter, current transformers and metering facilities of Contis Plaza would be
inspected.

The inspection was done on March 3, 1993 in the presence of private respondent Tius
operations manager and lawyer. Meralco meter test crew checked the two (2) current
transformers installed outside of Contis Plaza using state-of-the-art phase angle test
apparatus. The test showed that the polarity markings on the terminals of one of the two (2)
current transformers were reversed or interchanged. This would counter-act the current of the
other transformer. Consequently, the effective registration of the KWH electric meter of Contis
Plaza was only 10.71% with the corresponding power loss to the herein petitioner of
89.29%. When corrections were made, the KWH electric meter reflected the correct amount of
electric consumption at Contis Plaza. The unregistered consumption at Contis Plaza for the
billing period from November 8, 1988 until February, 1993, was pegged and valued in the
amount of P9,364,267.00. Despite repeated demands to pay the said amount, respondent Tiu
failed and refused to pay the same.

On March 17, 1993, the KWH electric meter installed at respondent Tius building located at
No. 46 Fendler Street, East Tapinac, Olongapo City, was found to register 0-0
consumption. After a thorough inspection, it was discovered that the potential link of the KWH
meter installed at the second floor of the said building was disengaged. The KWH meter thus did
not register any consumption.

Subsequently, petitioner filed a complaint for violation of City Ordinance No. 23, Series of
1989, and of Presidential Decree No. 401 for theft of electricity against private respondent.

After preliminary investigation, the office of the State Prosecutor dismissed the complaint.

On appeal, then Acting Secretary of the Department of Justice Demetrio Demetria concurred
with the office of the State Prosecutors findings that the violation of City Ordinance No. 23 had
prescribed but found sufficient evidence to hold private respondent liable for theft of electricity.
 Upon private respondents filing of a motion for reconsideration, respondent Secretary of
[2]

Justice reversed the said ruling and directed the withdrawal of the information against private
[3]

respondent for theft of electricity. This prompted petitioner to file a petition for certiorari with
the Court of Appeals.

On August 22, 1997, the Court of Appeals promulgated its decision dismissing the petition
for lack of merit. Hence, the present petition.

The only issue in this case is whether or not the Court of Appeals erred in ruling that the
respondent Secretary of Justice did not commit grave abuse of discretion in issuing the
Resolution of November 6, 1995.

Petitioner alleges that the Court of Appeals committed grave and serious reversible error in
dismissing the petition for certiorari since the petitioner has established a prima facie case to
prosecute private respondent for two (2) counts of theft of electricity.

Petitioner argues that the purpose of a preliminary investigation is not to determine whether
the accused is guilty beyond reasonable doubt of the crime charged, but merely whether there
existed a probable cause for his prosecution, i.e., whether there is sufficient ground to engender a
well-founded belief that a crime has been committed; that the respondent is probably guilty
thereof and should be held for trial. Petitioner submits that it is sufficient to adduce evidence
which inclines the mind to believe, without necessarily leaving room for doubt, that the accused
is guilty of a crime and should be held for trial.

In support of its petition, petitioner cites then Acting Secretary of Justice Demetrio G.
Demetrias resolution, to wit:

Assuming there is no direct proof that respondent caused the tampering of the electric
meters either by disengaging the polarity thereof or causing the unauthorized
electrical connections, there is ample circumstantial evidence to prove his
culpability. Thus, circumstantial evidence is sufficient for conviction if: (a) there is
more than one circumstance; (b) the facts from which the inference are derived are
proven; and (c) the combination of all the circumstances is such as to produce a
conviction beyond a reasonable doubt. (Section 5, Rule 133, Revised Rules of Court).

The following circumstances have been shown, to wit:

In I.S. No. 339

1. That respondent provided the required electric meters and current transformers
(CTs) installed at his business premises;

2. That complainants installation crew simply followed the standard metering

principle in connecting the current transformers to the KWH meter as respondents
technicians prepared all electrical connections;

3. That it was discovered by the MERALCO meter test crew that the two CTs had
their polarity markings tampered, resulting in that the tampered marking of the
polarity of the CTs led to a wrong connection of the KWH meter which, consequently,
registered a 10.71% electric consumption only, with a power loss of 89.29% to
complainant;

4. That after the wiring connection was reversed, the rotation pace of the meter
increased to almost 675%;

In I.S. No. 506, aside from the first and second circumstances above-mentioned,
additional circumstances were also noted, thus:

1. That when inspected by complainants team, meter No. 26439328 reflected zero
consumption;

2. That the potential link in the said electric meter at the second floor was disengaged
resulting in the meter not registering any electric consumption;

3. That respondent transferred the load of his appliances and equipment from the first
floor of the building to the second floor where the tampered meter is located;

4. That when complainants team disconnected the loadside of the meter, a spark was
produced, indicating that there were loads attached to the tampered meter;

5. That an inventory of the electrical connections to the tampered meter revealed that
respondent installed electrical connections without the consent of complainant, the
electrical consumption of the connections thereby not being reflected in the tampered
meter.

The above-enumerated unbroken chain of events leads to the unmistakable conclusion

that respondent, to the exclusion of others, was the author of the crime.[4]
 Petitioner further argues that it is not necessary to prove directly that respondent Tiu did the
tampering himself for a contrary rule would make the prosecution of power theft and pilferage
next to impossible.

After a careful examination of the assailed decision and resolutions, and the pleadings filed
by both parties, the Court finds the instant petition to be without merit.

The holding of a preliminary investigation is a function of the Executive Department and not
of the Judiciary. The primary objective of a preliminary investigation is to free a respondent
[5]

from the inconvenience, expense, ignominy and stress of defending himself/herself in the course
of a formal trial, until the reasonable probability of his or her guilt has been passed upon in a
more or less summary proceeding by a competent officer designated by law for that
purpose. Secondly, such summary proceeding also protects the state from the burden of
unnecessary expense and effort in prosecuting alleged offenses and in holding trials arising from
false, frivolous or groundless charges. The decision whether or not to dismiss the complaint
[6]

against private respondent is necessarily dependent on the sound discretion of the prosecuting
fiscal and, ultimately, that of the Secretary of Justice.
[7]

Decisions or resolutions of prosecutors are subject to appeal to the Secretary of Justice who,
under the Revised Administrative Code, exercises the power of direct control and supervision
over said prosecutors; and who may thus affirm, nullify, reverse or modify their rulings. [8]

When the respondent Secretary of Justice, in his Resolution of November 6, 1995, reversed
the findings of Acting Secretary of Justice Demetria, in the Resolution dated May 18, 1995, it
was done in the exercise of his power of review, which rests upon his sound discretion.

The Resolution of the Secretary of Justice may be reviewed by the court. However, the court
is without power to directly decide matters over which full discretionary authority has been
delegated to the legislative or executive branch of the government. It is not empowered to
substitute its judgment for that of the Congress or of the President when they did not act in grave
abuse of discretion.

Thus, although it is entirely possible that the investigating fiscal may erroneously exercise
the discretion lodged in him by law, this does not render his act amenable to correction and
annulment by the extraordinary remedy of certiorari, absent any showing of grave abuse of
discretion amounting to excess of jurisdiction.[9]

This Court finds that the Court of Appeals did not err in ruling that the respondent Secretary
of Justice did not act in grave abuse of discretion in directing the Acting City prosecutor of
Olongapo City to move for the withdrawal of the informations against the private respondent for
theft of electricity.
 Findings of the Secretary of Justice are not subject to review unless shown to have been
made with grave abuse. [10]

In its Resolution, respondent Secretary of Justice made the following ratiocination:

We could not lend credence to the claim of the complainant that respondent stole
electricity in view of the findings of the Meralco meter test crew that the polarity
markings of the terminals of one of the current transformers were reversed or
interchanged. The assumption derived from this finding is hardly persuasive. Even
after the correction of the perceived defect in the current transformers, there was no
material and substantial increase in the KWH consumption of the respondent.

xxx the respondent cannot be faulted for the reversed or interchanged polarity
markings. The current transformers, prior to their installation, were duly verified,
tested and examined by authorized personnel of the complainant. They were installed
after they were verified to be fit for service and were approved for connection on 4
October 1988 by the complainant. The respondent, therefore, could not have caused
the reversal or the interchange of the markings. In fact, the witness for the
complainant, Mr. Jose Ricky V. Tan, even stated that since the current transformer
were old, he could not determine if the polarity markings were changed or not.

xxx Thus, we affirmed your findings that:

x x x. As correctly pointed out by respondent, it is not possible for him to disconnect

the potential link after its installation because there would be some initial reading that
will be registered. Since the reading is 0-0 from the time of its installation up to the
time it was discovered on March 17, 1993, the only logical explanation for the 0-0
reading is that the potential link was never engaged/connected when the new meter
was installed. This is buttressed by the fact that when the subject electric meter was
inspected on March 17, 1993, the seal was still intact and there is no evidence of
tampering. Whoever initially installed said electric meter failed to connect the
potential link before covering or sealing the meter. Certainly, we cannot blame
respondent for the inefficiency or incompetence of others. The fact that it was
respondent who informed the PUD (complainant) that one of his electric meters has a
0-0 reading after receiving his monthly billing negates bad faith or deliberate intent on
the part of the respondent to violate P.D. 401. [11]
 Comparing the alleged circumstantial evidence enumerated by the petitioner and the
ratiocination made by the respondent Secretary of Justice, the Court finds that no sufficient
evidence of guilt and no prima facie case has been presented by petitioner to compel the fiscal to
prosecute the case of theft of electricity against private respondent.

In Quiso vs. Sandiganbayan, this Court pointed out that:

[12]

x x x[A] fiscal by the nature of his office, is under no compulsion to file a particular
criminal information where he is not convinced that he has evidence to support the
allegations thereof. Although this power and prerogative xxx is not absolute and
subject to judicial review, it would be embarrassing for the prosecuting attorney to be
compelled to prosecute a case when he is in no position to do so, because in his
opinion he does not have the necessary evidence to secure a conviction, or he is not
convinced of the merits of the case."

We reiterate the ruling of this Court in Quiso vs. Sandiganbayan and in Jacob vs. Puno,
[13]

that certiorari will not lie to compel the respondent Secretary of Justice to file a case if he
[14]

thinks the evidence does not warrant it. Otherwise, he will be committing a dereliction of duty.

WHEREFORE, there being no showing of grave abuse of discretion on the part of public
respondent which would warrant the overturning of its decision, the instant petition is
DISMISSED and the assailed Decision of the Court of Appeals is hereby AFFIRMED.

SO ORDERED.

ODIN SECURITY AGENCY, INC., represented by its President/General

Manager, Col. Arturo C. Ferrer (Ret.), petitioner,
vs. SANDIGANBAYAN (Second Division), Special Prosecution Officer
RODRIGO V. COQUIA, ANICETO M. SOBREPENA, MANUEL
GAITE, DALISAY NAZARENO, GUILLERMA REYES and
DEMETRIO IGNACIO, respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

Assailed in this instant petition for certiorari is the Resolution of the Sandiganbayan,
Second Division, dated December 15, 1997 dismissing the Information in Criminal Case No.
23325 (for violation of Sec. 3 (e) of R. A. 3019 [1]) against private respondents and the Resolution
dated August 25, 1998 denying petitioners motion for reconsideration.
 The facts are:

On April 26, 1991, the Presidential Management Staff (PMS) of the Office of the President
conducted a public bidding for security services required for its various offices. Fifteen (15)
security agencies participated in the bidding, including petitioner Odin Security Agency
(Odin). Odin and Masada Security Agency (Masada) submitted the lowest bid proposals. They
were evaluated by the Bids and Awards Committee (BAC) of the PMS, composed of private
respondents Manuel B. Gaite, as Chairman, Dalisay Nazareno, Guillerma Reyes and Demetrio
Ignacio, as members. In determining the most advantageous bid, the BAC was guided by the
following criteria:

a. Bid price- 25%

b. Financial status- 20%

c. Years of Service- 10%

d. Communication and transactions- 10%

e. Area of operations- 10%

f. Mobilization- 10%

g. Other government clientele- 10%

h. Availability of training centers- 5%

After evaluation, the BAC concluded that Nationwide Security and Allied Services, Inc.
(Nationwide) ranked first, while Odin and Masada tied at second place.

The BAC referred the three (3) agencies (Nationwide, Odin and Masada) to the Presidential
Security Group (PSG) for clearance. Forthwith, the PSG recommended Nationwide as the most
suitable agency to provide security services.

Before the Notice of Award could be sent to Nationwide, Odin, represented by its president
and general manager, Col. Arturo Ferrer (ret.), filed with the PMS a protest alleging that
Nationwide made a misrepresentation in its financial statement, reflecting therein an authorized
paid up capital of P 2,400,000.00 although its authorization with the Securities and Exchange
Commission (SEC) at that time was only P 1,000,000.00. Hence, Nationwide should be
disqualified in the bidding.
 Despite Odins protest, the BAC recommended the award of the security service contract to
Nationwide, stating that there was no substantial misrepresentation on its part; and there is
nothing illegal in declaring an increased paid-up capital pending its approval by the
SEC. Accordingly, private respondent Aniceto Sobrepena, then head of the PMS, approved the
BACs recommendation, resulting in the award of the contract to Nationwide effective January 1,
1992.

On February 19, 1992, Odin filed another protest, alleging for the first time that Nationwide
also falsified other entries in its financial statement (with counterfeit BIR stamps) submitted to
the PMS.

Respondent Sobrepena referred the matter to the PMS Legal Office. After a thorough
investigation, the PMS found that Nationwide committed substantial
misrepresentation. Consequently, its services were terminated effective June 7, 1992.

To replace Nationwide, the PMS awarded the security service contract to Ardee Security
Agency, Inc. (Ardee). Again petitioner lodged a protest but was dismissed by respondent
Sobrepena on the ground that PMS has no obligation to award the contract to the next ranking
bidder.

On June 26, 1992, Odin, through Col. Ferrer, filed with the Office of the Ombudsman a
complaint-affidavit for violation of Section 3(e) of Republic Act No. 3019, otherwise known as
the Anti-Graft and Corrupt Practices Act, against the private respondents, namely:

1. Aniceto M. Sobrepea, head of PMS;

2. Manuel B. Gaite, Chairman, PMS Bids and Awards Committee;

3. Dalisay Nazareno, member, PMS Bids and Awards Committee;

4. Guillerma Reyes, member, PMS, Bids and Awards Committee;

5. Demetrio L. Ignacio, Jr., member, PMS Bids and Awards Committee and others.

After conducting the preliminary investigation, the Ombudsman filed with the
Sandiganbayan an information for violation of Sec. 3 (e) of R. A. 3019, docketed as Criminal
Case No. 23325, against private respondents.

Meanwhile, acting on private respondents motion, the Sandiganbayan, in its order dated
May 15, 1996, directed the prosecution to reinvestigate the case. On February 7, 1997, the
Ombudsman issued a resolution recommending the dismissal of the Information in Criminal
Case No. 23325 for lack of probable cause. This resolution was eventually submitted to the
Sandiganbayan.

Forthwith, the Sandiganbayan, in its order dated February 24, 1997, required private
respondents to comment on the Ombudsmans resolution.

On December 15, 1997, the Sandiganbayan promulgated the assailed Resolution dismissing
Criminal Case No. 23325 for lack of probable cause.

Petitioner filed a motion for reconsideration, but was denied.

Hence, the present petition alleging that in dismissing Criminal Case No. 23325, the
Sandiganbayan acted with grave abuse of discretion.

In its comment, the People, represented by the Office of the Ombudsman, pursuant to P.D.
No. 1606, as amended by R.A. No. 7975, asserts that respondent Sandiganbayans reliance on the
Ombudmans finding of lack of probable cause is in order.

The crucial issue for our resolution is whether there was probable cause to indict respondent
PMS officials for violation of Section 3 (e) of Republic Act 3019, which reads:

Sec. 3. Corrupt practices of public officers.- In addition to acts or omissions of

public officers already penalized by existing law, the following shall constitute
corrupt practices of any public officer and are hereby declared to be unlawful:

xxx

(e) Causing any undue injury to any party, including the Government, or giving
any private party any unwarranted benefits, advantage or preference in the
discharge of his official administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence. This provision shall
apply to officers and employees of offices or government corporations charged
with the grant of licenses or permits or other concessions.

x x x.

Probable cause is the existence of such facts and circumstances as would excite the belief,
in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person
charged is guilty of the crime for which he was prosecuted.[2] Corollarily, the determination of the
existence or absence of probable cause lies within the sound discretion of the Office of the
Ombudsman.[3]

Time and again, this Court has held that once a case has been filed with the court, it is that
court, no longer the prosecution, which has full control of the case, so much so that the
information may not be dismissed without its approval. [4] Significantly, once a motion to dismiss
or withdraw the information is filed, the court may grant or deny it, in the faithful exercise of
judicial discretion.[5] In doing so the trial judge must himself be convinced that there was indeed
no sufficient evidence against the accused, and this conclusion can be arrived at only after an
assessment of the evidence in the possession of the prosecution. What was imperatively required
was the trial judges own assessment of such evidence, it not being sufficient for the valid and
proper exercise of judicial discretion merely to accept the prosecutions word for its supposed
insufficiency.[6]

Here, respondent Sandiganbayan, in dismissing Criminal Case No. 23325 relied on the
Ombudsmans findings that:

1. While Nationwide was not the lowest bidder, however, the bid price was not the sole factor
considered by private respondents in determining the most advantageous bid. The bid price
constitutes only 25% of the total factors. After evaluation, Nationwide, came out with the
highest ranking;

2. Private respondents did not give unwarranted benefit or advantage to Nationwide because its
alleged misrepresentation on its paid-up capital stock was actually investigated and
deliberated upon. Private respondents finding is that such misrepresentation is not material,
hence, could not disqualify Nationwide.

3. In view of the additional alleged misrepresentations committed by Nationwide (after

petitioners first protest), the PMS terminated its services.

In addition to the above findings, respondent Sandiganbayan found that there is no iota of
proof showing that private respondents conspired with Nationwide in the commission of the
alleged misrepresentation to facilitate the award of the bid to the latter to the prejudice of other
bidders, thus:

We are constrained to dismiss the instant case. In addition to the reasons advanced by
the Office of the Ombudsman as afore-cited, WE took note that if in fact, there were
misrepresentations made by NSAS in its financial statements, there is no iota of proof
showing that herein accused-movants conspired with NSAS in the commission of the
said misrepresentations to facilitate the award of the bid to the latter to the prejudice
of the other bidders. What herein accused-movants simply did was to evaluate the
competency of NSAS relying on the documents submitted to them, and if ever there
were irregularities in these documents, it is not fair to attribute the same to herein
accused-movants just because they approved the bid in favor of NSAS. The grant of
the bid to NSAS by accused-movants should be separated from the misrepresentations
made by the latter on their financial statements. There is no proof of felonious linkage
so as to warrant the instant indictment.[7]

In thus concluding, it can readily be discerned that respondent Sandiganbayan properly

exercised its judicial prerogative since it did not merely rely on the Ombudsmans
recommendation but likewise reviewed the evidence submitted to it.

The established rule is that a preliminary investigation is not the occasion for the full and
exhaustive display of the parties evidence; it is for the presentation of such evidence only as may
engender a well-grounded belief that an offense has been committed and that the accused is
probably guilty thereof.[8]

Hence, petitioners arguments that private respondents conspired with Nationwide and
granted it undue favor, disregarding the fact that petitioner is the lowest bidder, are
misplaced. They are all matters of defense.

In the case at bar, the Ombudsman was convinced there was no probable cause. His findings,
being in order, were adopted by respondent Sandiganbayan which concluded that there is no iota
of proof showing that private respondents conspired with Nationwide to enable the latter to get
the award.

The findings of the Ombudsman and those of respondent Sandiganbayan are essentially
factual in nature. Accordingly, in assailing the findings of respondent court and contending that it
committed grave abuse of discretion, petitioner is actually raising questions of fact.

This Court is not a trier of facts. At this point it bears stressing that in the extraordinary writ
of certiorari, neither questions of fact nor even of law are entertained, but only questions of lack
or excess of jurisdiction or grave abuse of discretion.[9]

We thus rule that in dismissing Criminal Case No. 23325 for lack of probable cause, no taint
of grave abuse of discretion can be attributed to respondent Sandiganbayan.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.
 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROMMEL
DEANG, MELVIN ESPIRITU, and NICSON (or NIXON)
CATLI, accused-appellant.

DECISION

PER CURIAM:

Everything that happens in this world happens at the time God chooses. He
sets the time for birth and the time for death, . . . (Ecclesiastes 3:1-8).

Though God has certainly set the time of Arthur Tanhueco's birth, the three men
accused in this case unblinkingly usurped God's power to set the time of his death. In
one virtual motion, they deprived him of his liberty; and demanded a considerable sum
from his loved ones for his freedom, and yet, took his life despite achieving their
purpose. For their acts, they shall have to answer to God and to society.

On 31 January 1997, the Regional Trial Court of Angeles City, Branch 59, rendered
a decision[1] in Criminal Case No. 95-320, finding accused Rommel Deang, Melvin
Espiritu, and Nicson (or Nixon) Catli (hereafter DEANG, ESPIRITU, and CATLI) guilty
beyond reasonable doubt of the crime of kidnapping for ransom with homicide, and
sentencing each of them to suffer the penalty of death. The case is now before this
Court on automatic review, pursuant to Article 47 of the Revised Penal Code, as
amended by Section 22 of Republic Act No. 7659.[2]

The following facts were established by the evidence for the prosecution:

In the morning of 5 July 1995, Arthur Jay-Jay Tanhueco (hereafter JAY-JAY), a

second-year high school student of the Chevalier School in Angeles city, was walking on
campus when he was summoned by a man. The latter talked to JAY-JAY for a short
while then suddenly dragged him inside a white Nissan Sentra aided by the driver. Two
students, Arnel Mariano and Juliet Somera, who were defense witnesses called to
testify for DEANG, saw the abduction and identified the man who forced JAY-JAY into
the car as ESPIRITU.[3]

The car sped away, narrowly missing pedestrian Ranulfo Quizon, but not before the
latter had a good look at the driver, whom he cursed in the Pampanga
dialect: Putanayda mo, kalakalale ka!" He later identified the driver of the car as
DEANG.[4]

JAY-JAY was held against his will as his captors negotiated with his parents, Arturo
Tanhueco, Sr. and Shirley Tanhueco (hereafter, Arturo and Shirley), for the payment of
a P3-Million ransom, which was reduced to P1.48 million.[5] The pay-off set on the
evening of 12 July 1995 at the Game City Amusement Center in Balibago, Angeles City,
did not, however, push through. Instead, Shirley was approached by a man in a polka
dot shirt, who was earlier seen talking to a certain Miller.[6]

The next day, 13 July, a man who went by the name of "Bian" (ESPIRITU's alias)
rang the Tanhuecos and told Shirley to bring the ransom money by herself to
Carmenville Subdivision that evening. Once there, two men approached her. One of
them, whom she identified as ESPIRITU, quickly occupied the driver's seat, while the
other, whom she identified as CATLI, sat behind them and examined the plastic bag
containing the money. Shirley was made to sit beside ESPIRITU, and then
blindfolded. After driving for about an hour, Shirley sensed a car passing by and
stopping a short distance away. She was instructed to wait for her son, then she heard
ESPIRITU and CATLI board the other car. For about an hour, Shirley sat waiting in the
car, until an old man removed her blindfold. Her son JAY-JAY, however, was nowhere in
sight.[7]

On 27 July 1995, after appropriate proceedings, Angeles City 2nd Asst. City
Prosecutor Vicente J. Pornillos filed with the Regional Trial Court of Angeles City an
information for KIDNAPPING against Miller Capil and five (5) "Does" who remained at
large as of that time. The case was docketed as Criminal Case No. 95-320. [8]

In the course of the investigation of JAY-JAY's kidnapping, his father Arturo

observed that the telephone calls made were traced to a house numbered 74-9 along
Calachuchi St., Timog Park, Angeles City. Thus, on 20 July 1995, he visited said
address, where he saw his nephew DEANG talking with a young man, later identified as
ESPIRITU, in front of the house owned by a certain Reynaldo Cunanan. [9]

Once DEANG was in police custody, the police recovered, P100,000 from him. He
then implicated in his sworn statement ESPIRITU, CATLI, and Benito Catli (hereafter
Benito) in the kidnapping for ransom of JAY-JAY.[10] Accordingly, on 25 August 1995, the
information was amended to specifically identify the "Does." Pursuant to the Amended
Information,[11] ESPIRITU, CATLI, and Benito were charged as Miller's co-accused in the
KIDNAPPING of JAY-JAY.
 In the meantime, on 17 July 1995, the dead body of an unidentified boy was found
in Sitio Kaynalawit, Barangay Dayap, Laurel, Batangas, along the Tagaytay ridge below
a ravine 15 to 30 meters from the road. The post-mortem examination of the cadaver
revealed the cause of death as follows:

VICTIM DATA: An unidentified male dead person, around 14 to 15 years old,

wearing Giordano white shirt black pants, Gamosa shoes.

PLACE OF INCIDENCE: Sitio Kaynalawit, Barangay bayap, Itaas, Laurel,

Batangas

NATURE OF INCIDENCE: Mauling

PLACE DATE AND TIME OF AUTOPSY: Police Station, Laurel, Batangas at

about 9:50 p.m., July 17, 1995

GENERAL FINDINGS

1. Skull Fracture over left temporo parietal area.

2. Multiple lacerated wds: 1-1 /2 inches (L) temporo parietal area.

3. Hematoma 2 inches over (R) eye.

CAUSE OF DEATH

Cerebral Hemorrhages.[12]

When the body was identified to be that of JAY-JAY, and such fact was linked to the
kidnapping, the information was amended on 31 August 1995 to charge the accused not
for mere kidnapping, but for KIDNAPPING FOR RANSOM WITH HOMICIDE. This time,
DEANG was included in the indictment.[13]

Thereafter, 2nd Asst. City Prosecutor Pornillos moved that accused Miller Capil be
dropped as co-accused after determining that he was erroneously charged on account
of mistaken identity and DEANG did not mention in his sworn statement Capil's name.
[14]
Defense witness Arnel Mariano clarified the mistake when he testified on 17 May
1996 regarding the physical similarity of Miller and ESPIRITU. Thus, on 1 September
1995, the Information was again accordingly amended, and as so amended, it reads:
The undersigned Second Assistant City Prosecutor accuses ROMMEL
DEANG Y TANHUECO, MELVIN ESPIRITU, NIXON CATLI, BENITO CATLI,
of the crime of KIDNAPPING FOR RANSOM WITH HOMICIDE committed as
follows:

That on or about the 5th day of July, 1995, in the City of Angeles, Philippines,
and within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together and mutually aiding and abetting one
another, did then and there willfully, unlawfully and feloniously, and for the
purpose of extorting money from the parents of ARTHUR TANHUECO, a
minor, who was kidnap, carry away in an automobile, detain and later taking
him into undisclosed place, thereby depriving him of his liberty; and accused
herein despite having attained their purpose of demanding and receiving
money as ransom for the release of said minor, the accused failed to release
him to his parents, and instead the said accused with abuse of superior
strength, evident premeditation and treachery killed said ARTHUR
TANHUECO as a consequence.[15]

The trial court granted the motion to drop Capil as co-accused. The remaining
accused, DEANG, ESPIRITU, CATLI, and Benito Catli, each entered a plea of not guilty
on 29 September 1995, the scheduled arraignment and pre-trial. [16]

On 19 October 1995, counsel for accused CATLI filed an omnibus motion to

suspend proceedings, to quash warrant of arrest, to hold preliminary
investigation/examination, and to immediately release accused CATLI. [17] The motion
was opposed by the prosecution and was denied by the court in its order of 7 November
1995.[18]

During the trial, a motion to discharge Benito to become a state witness was filed,
which was opposed by DEANG, ESPIRITU, and CATLI. [20] The trial court, however,
[19]

granted the motion in an order dated 29 February 1996. [21] It reasoned thus:

. . . First, there is absolute necessity for the testimony of Benito Catli, for
despite the presentation of witnesses by the prosecution, none of them
testified on the exact manner the crime was committed. The question as to
who masterminded the commission of the offense, the manner it was
committed and the actual participation of the four accused. The existence
of the alleged conspiracy can be gleaned from the sworn statement of
 Benito Catli. Second, the crime charged against the four accused is
kidnapping for ransom with homicide. The testimony of the witnesses for
the prosecution was limited to the fact of kidnapping and the fact of the
victim's death. The circumstances leading to the death of the victim and
the manner he was killed was not yet established. Without accused Benito
Catli's testimony, no other direct evidence is available for the prosecution
to prove the elements of the crime charged against the four
accused. Third, his testimony was and could be corroborated by the
prosecution's witnesses .... Fourth, he does not appear to be the most
guilty. In his sworn statement, he was merely asked by the three other
accused to join them in their already perceived plan of kidnapping a
certain person .... Fifth, there is no evidence that he has at any time been
convicted of any offense involving moral turpitude.

DEANG, ESPIRITU, and CATLI had a common defense: denial and alibi. DEANG
claimed that on the date in question, he was watching television at his house on Jesus
St., Angeles City. For his part, ESPIRITU maintained that he accompanied his niece,
Carmella Arcilla, to a Protestant school at Henson St., also in Angeles City. [22] Finally,
CATLI, a cousin of state witness Benito, said that between 5 and 17 July 1995, he never
left their family store located at the Panlilio Apartments, Jesus St., Angeles City.[23]

After trial on the merits, the court found the evidence of the prosecution to be more
credible, disregarded the defense of alibi set up by DEANG, ESPIRITU, and CATLI, and
decreed as follows:

WHEREFORE, premises considered, accused Rommel Deang, Melvin

Espiritu and Nicson Catli are held civilly liable to pay jointly and severally the
heirs of the victim Arthur "Jay-jay" Tanhueco, Jr:

1. the sum of P1,480,000.00 actually given as ransom money minus P100,000.00;

2. P30,000.00 for the wake and funeral expenses;

3. P10,000.00 for expenses in transporting the cadaver of the victim from Laurel,
Batangas to Angeles City;

4. the sum of P3,000,000.00 pesos for and as moral damages; and

5. the sum of P50,000.00 as attorney's fees.

Finding all the accused GUILTY beyond reasonable doubt of the crime of
Kidnapping For Ransom With Homicide, accused Rommel Deang, Melvin
Espiritu and Nicson Catli are all sentenced to suffer the supreme penalty of
DEATH.[24]

The capital punishment having been imposed by the trial court, the assailed
judgment is now with this Court on automatic review.

DEANG insists that the trial court erred in (a) convicting him on the basis of
inadequate and insufficient evidence; (b) basing his conviction on his alleged
extrajudicial confession which is inadmissible in evidence; (c) convicting him on the
basis of illegally obtained evidence; (d) not upholding his constitutional right to counsel
during his custodial investigation; and (e) not considering that he was illegally arrested
and detained.

ESPIRITU, aside from asserting the lack of evidence to convict the three of them,
assigns as error the failure of the trial court to appreciate his alibi.

CATLI avers that the trial court erred in: (a) proceeding with his arraignment without
a preliminary investigation; (b) admitting in evidence, giving weight and credence to,
and relying chiefly on the alleged extrajudicial confession of accused DEANG in
convicting them; (c) granting the discharge of Benito Catli when he was the most guilty
of the four accused and by giving weight to his testimony; (d) ignoring his defense of
alibi; and (e) convicting him despite a clear lack of motive.

After a meticulous review of the voluminous records and the evidence adduced by
the parties, this Court agrees with the findings of the trial court and, consequently,
affirms the conviction of accused-appellants DEANG, ESPIRITU and CATLI.

Shirley's narration of the events that followed the abduction of her son JAY-JAY is
convincingly clear. Her testimony proved beyond any doubt that JAY-JAY was
kidnapped, that she complied with the ransom demands of the malefactors, and that
she had sufficient knowledge of their identities because she personally dealt with
them. Her testimony may have had minor inconsistencies, but these did not affect her
credibility. It is settled that inconsistencies on minor and trivial matters only serve, to
strengthen rather than weaken the credibility of a witness because they erase any
suspicion of rehearsed testimony.[25]

JAY-JAY's father Arturo also had a hand in piecing together the evidence against
accused-appellants. He went to the place from where the telephone calls made by the
kidnappers were traced and found his nephew, DEANG, conversing in front of the
house with a man who was later identified as ESPIRITU. This eventually paved the way
to the questioning of DEANG, who owned up the crime and supplied the information
that, in turn, led the police to CATLI, ESPIRITU and Benito.

State witness Benito Catli's testimony is crucial to the determination of the guilt or
innocence of accused-appellants. He maintained that it was DEANG, ESPIRITU, and
CATLI who conceptualized, planned and executed the abduction. Thereafter, the three
mapped out how to get the ransom from JAY-JAY's parents. Benito also declared that
the boy was held against his will.[26] As correctly observed by the trial court:

The victim was brought to the ancestral home of Nicson Catli's family at San Juan, San
Luis, Pampanga. Nicson Catli was the one who guarded the victim, while Melvin Espiritu
negotiated for the ransom money and Rommel Deang was the one who monitored the
movement of the Tanhueco family. Benito Catli also testified that Nicson Catli and
Melvin Espiritu were the ones who met Shirley Tanhueco at Carmenville and that it was
Nicson Catli who was carrying the ransom money when he transferred from the car of
Mrs. Tanhueco to the car being driven by Benito Catli. The three of them, Melvin, Nicson
and Benito thereafter brought the victim to Manila at the Longwood Hotel and the three
of them also counted the ransom money. When Benito and Melvin returned to Angeles
City in the early morning of July 13, 1995, Nicson Catli was left in Manila to guard Jay-
Jay, Tanhueco. Then on July 17 or 18, 1995, it was Nicson Catli who gave Benito Catli
the amount of P50,000.00 and told him that Turo or Jay-Jay Tanhueco was already
dead. Nicson even told Benito that Nicson, Rommel and Melvin went to Tagaytay. From
there, Rommel shot Jay Jay Tanhueco with a paltik revolver and thereafter Rommel and
Melvin threw Turo down the cliff.[27]

Recovered from the possession of DEANG were peso bills in the amount
of P100,000,[28] which was part of the ransom money.

The Nissan Sentra car that was used in the forcible taking of JAY-JAY at the
Chevalier School campus on 5 July 1995 was properly identified by witnesses and was
traced to Bali Cars, which rented it out to ESPIRITU on several occasions in July 1995,
coinciding with the dates pertinent to the kidnapping of JAY-JAY, the delivery of the
ransom money, and the taking of JAY-JAY to Longwood Hotel in Manila. [29] The trial court
found ESPIRITU's testimony on the circumstances surrounding said transactions
incredible and declared thus:

The explanations made by Melvin Espiritu on why he rented a car on July 5,

1995 is unmeritorious. He alleged that he rented the car at 6:00 a.m. in favor
of Benito Catli per the latter's request. Benito Catli's house is nearer and more
accessible to Bali Cars. Benito Catli allegedly went to San Luis the night
before and told him to leave the car to Catli's sister. Likewise, his explanation,
on why he rented a car on July 14, 1995 does not deserve consideration. It is
improbable for her mother not to call them considering that she will not be
going home on July 14, 1995 and the succeeding days thereafter. Melvin
rented a car on July 14, 1995 allegedly to fetch his mother at the airport and
who did not arrive on the said date. He went on again on July 15 and 16, 1995
using the rented car hoping that his mother would come. They did not call
their mother in Hong Kong although they can call her up when there is an
emergency. This Court believes that such narration was used by the defense
only to justify his renting a car on July 14, 1995. The car he rented on July 14,
1995 was returned only on August 4, 1995 and he paid P26,400.00 for it.[30]

All the foregoing, especially the pivotal testimony of state witness Benito Catli,
established beyond any shadow of a doubt that DEANG, ESPIRITU, and CATLI
committed, and are guilty of, the crime for which they were charged, namely, kidnapping
for ransom with homicide.

There is no merit to DEANG's claim that his extrajudicial confession is inadmissible

for having been obtained in violation of his constitutional rights under custodial
investigation.

Paragraph 1, Section 12, Article III of the Constitution provides that:

Any person under investigation for the commission of an offense shall have
the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If a person cannot afford
the services of counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.

And Section 2(a) of R.A. No. 7438 states that:

Any extrajudicial confession made by a person arrested, detained or under

custodial investigation shall be in writing and signed by such person in the
presence of his counsel or in the latter's absence, upon a valid waiver, and in
the presence of any of his parents, older brothers and sisters, his spouse, the
municipal mayor, the municipal judge, district school supervisor, or priest or
minister of the gospel as chosen by him; otherwise, such extrajudicial
confession shall be inadmissible as evidence in any proceeding.[31]
 DEANG asserts that he was not advised of his constitutional rights and that his
confession was dictated by PO3 Primo Jamisolamin. He adds that the lawyer who
assisted him, Atty. Mariano Y. Navarro, was not his counsel of choice and that the latter
did not ascertain whether his confession was freely given. Moreover, he claims, Atty.
Navarro did not see him write and sign the purported confession. DEANG further states
that he was never asked any question at that time relating to the incident under
investigation.

PO3 Jamisolamin, however, testified that DEANG was informed of his constitutional
rights and, when asked if he understood them, DEANG replied in the affirmative. When
apprised of his right to counsel, DEANG also said that he had a lawyer, Atty. Mariano
Navarro. Jamisolamin further testified that Atty. Navarro was right in front of DEANG
when the latter was giving his confession.[32] DEANGs confession was in written form,
signed by him, as well as by Atty. Navarro.[33]

SPO2 Mario Nulud, who was present at the time DEANG was giving his confession,
corroborated PO3 Jamisolamin's testimony that DEANG was read his constitutional
rights; and that the latter's lawyer, Atty. Navarro, was present during the investigation.

Moreover, a perusal of the extrajudicial confession of DEANG explicitly shows that

he was, indeed, informed of his constitutional custodial rights and that he was
represented by a counsel of his choice, Atty. Navarro, at the time said confession was
being executed, notwithstanding his disavowal of said counsel's services on
appeal. The pertinent portion of the extrajudicial confession reads:

PASUBALI: Ginoong, Rommel Deang, ipinagbibigay alam ko sa iyo na ikaw ngayon ay

sumasailalim ng isang pagsisiyasat at inuusig tungkol sa isang kasalanan na kung saan
ikaw ay nasasangkot sa isang krimen (kidnapping). Bago ang lahat, pinaalala ko sa iyo
na sa ilalim ng ating Saligang Batas ikay ay may may sariling karapatan at ito ay ang
sumusunod:

a. Karapatan mo ang magsawalang kibo sa anumang itatanong sa iyo.

b. Karapatan mong magkaroon ng patnubay ng isang manananggol, ikaw ay bibigyan ng

ating gobierno na walang bayad o sa sarili mong pili o kagustuhan. Ito ba ay
nauunawaan mo?

SAGOT: OPO (initialed)

TANONG: Pagkatapos na maipabatid sa iyo ang inyong karapatan sa ilalim ng ating saligang
batas na magsawalang kibo, nais mo bang ipagpatuloy ang imbestigasyong ito?

SAGOT: OPO (initialed)

 TANONG: Kailangan mo ba ng isang manananggol?

SAGOT: Opo, Si Atty. Mariano Y. Navarro po (initialed).

TANONG: Pinapaalala ka rin sa iyo na anumang salaysay ang ibibigay mo sa

imbestigasyong ito ay maaring gamitin laban sa iyo. Ito ba ay nauunawaan mo?

SAGOT: OPO (initialed)

TANONG: Handa ka na bang magbigay ng isang kusang loob na salaysay?

SAGOT: Opo, sir.[34]

In light of the positive assertions of PO3 Jamisolamin and SPO2 Nulud, police
officers who have not been shown to harbor any ill-motive in testifying against DEANG,
and are even presumed to have acted regularly, the self-serving and uncorroborated
claims of the latter must fail. The Court finds no constitutional and legal infirmity in the
signed extrajudicial confession of DEANG and affirms its admissibility in evidence.

Neither is there merit in DEANG'S claim that his arrest and the search of his house
were conducted in violation of his constitutional right against warrantless arrests and
searches. As he did not question the legality of his arrest before he was arraigned, he is
deemed to have waived such defense. In any case, no proof of the purported illegal
arrest was ever presented by the defense. What is clear from the record is that, when
invited by the police, he willingly submitted himself to investigation.

With regard to the alleged illegal search and seizure, SPO2 Mario Nulud testified
that DEANG conceded to accompany the police to his house in order to surrender his
share of the ransom money. He brought them to his room upstairs. There DEANG
showed and gave to the police officer P100,000 in P500-peso bills, some of which were
marked.[35] It must be reiterated at this point that a consented warrantless search is one
of the exceptions to the proscription under Section 2, Article III, of the Constitution.
[36]
The consent of the owner of the house to the search effectively removed any badge
of illegality.

Neither is the Court impressed with DEANG's assertion that the students who
witnessed the kidnapping of JAY-JAY pointed to Miller Capil as the one who forced JAY-
JAY into the car.Arnel Mariano and Juliet Somera actually identified ESPIRITU as the
culprit. A closer scrutiny of the testimonies of the witnesses reveals that Miller and
ESPIRITU bear physical resemblance. On the other hand, DEANG was positively
identified by Ranulfo Quizon, who remembered him as the driver of the white Nissan
Sentra used in abducting JAY-JAY.[37]Moreover, he was tagged by Benito Catli as one of
the co-conspirators in the commission of the crime charged.

CATLI, for his part, contends that there was a violation of his right to a preliminary
investigation. He filed a separate action before the Court of Appeals, docketed therein
as CA-G.R. SP No. 39287, raising this issue. In its decision promulgated on 15 March
1996, the Court of Appeals dismissed the petition on this ground: [38]

[T]he records show that only accused Benito Catli filed a Motion for
Reinvestigation. The three (3) other accused did not invoke their right to a
preliminary investigation. So much so that after entering into arraignment on
September 30, 1995, this right was deemed waived. At any rate, it is settled
that the absence of preliminary investigation does not impair the validity of the
information or otherwise render the same defective and neither does it affect
the jurisdiction of the court over the case or constitute a ground for quashing
the information.[39]

Preliminary investigation is generally inquisitorial, and it is often the only means of

discovering those who may be reasonably charged with a crime to enable the
prosecutor to prepare his complaint or information. It is not a trial of the case on the
merits and serves no purpose except to determine if a crime has been committed and
whether there is probable cause to believe that the accused is guilty thereof. It does not
place in jeopardy the person against whom it is taken. [40] It has been consistently held
that the absence of a preliminary investigation does not impair the validity of the criminal
information or render it defective. [41] In this case, CATLI is deemed to have waived his
right to preliminary investigation when he entered his plea during arraignment. [42]

CATLI also repeats his objection to the utilization of Benito Catli as state
witness. This issue is well within the discretion of the trial
judge. Assuming arguendo that the trial court did err, this Court has held several times
in the past that any witting or unwitting error of the prosecution in asking for the
discharge of an accused, and of the trial court in granting the petition for discharge,
would not deprive the discharged accused of the acquittal specified in Section 10 of
Rule 119 and of the constitutional guarantee against double jeopardy, as long as no
question of jurisdiction is involved. It is also relevant to note that the improper or
mistaken discharge of an accused would not affect his competence as a witness or
render inadmissible his testimony.[43]

CATLI'S argument that he had no motive to kidnap anybody because his family was
well-off is irrelevant. In the fist place, the rich and the poor can and do commit
crimes. Possession of wealth does not make one a saint, and poverty alone does not
make one a criminal. In the second place, proof of motive, in general, is not necessary
to pin a crime on the accused if the commission of the crime has been proven and the
evidence of identification is convincing.[44] In the present case, CATLI was identified by
Benito Catli, his cousin, as one of the co-conspirators in the planning and execution of
the kidnapping for ransom and the killing of JAY-JAY.

The common defense of DEANG, ESPIRITU, and CATLI is alibi. DEANG said he
was in his house in Jesus St., Pulong Bulo, Angeles City when the kidnapping was
executed on 5 July 1995. He was, however, positively identified by Quizon, who was
almost hit by the white Nissan Sentra immediately after JAY-JAY was kidnapped.

ESPIRITU, on the other hand, claims that Benito Catli asked him to rent a car on 5
July 1995. He thus rented a car at Bali Cars at approximately half past six in the
morning, after which he deposited the car at the residence of Benito Catli. He got back
home in Timog Park, Angeles City, at around 7:00 a.m. then brought his niece to school
at around 7:30. He left the school at around 8:00 o'clock and reached home some thirty
minutes later, where he stayed the rest of the day.

CATLI maintains he was tending his sister's store at Jesus St., Angeles City, the
entire two months of July and August, including the 5th of July.

Alibi is the weakest of all defenses for it is easy to fabricate and difficult to
disprove. For this reason, it cannot prevail over the positive identification of the accused
by witnesses.[45] For alibi to prosper, the requirements of time and place must be strictly
met. It is not enough to prove that the accused was somewhere else when the crime
was committed. He must demonstrate that it was physically impossible for him to have
been at the scene of the crime at the time of its commission. [46]

Chevalier School, where the kidnapping occurred, is in Pampanga. The residences

of DEANG and ESPIRITU, and the store of CATLI's sister, are all located in Angeles
City, Pampanga. Each of them miserably failed to show that it was physically impossible
for them to be at the Chevalier School at the time JAY-JAY was kidnapped.

In light of the overwhelming evidence for the prosecution, establishing their

authorship of and culpability for the crime charged, the alibis of DEANG, ESPIRITU, and
CATLI were rightfully disregarded by the trial court as obvious fabrications.

Article 267 of the Revised Penal Code, as amended by Section 8 of Republic Act
No. 7659, provides that:
Any private individual who shall kidnap or detain another, or in any other
manner deprive him of his liberty, shall suffer the penalty of reclusion
perpetua to death:

1) if the kidnapping or detention shall have lasted more than three days

2) xxx

3) xxx

4) if the person kidnapped or detained shall be a minor, except when the accused is
any of the parents, female or a public officer.

The penalty shall be death where the kidnapping or detention was committed
for the purpose of extorting ransom from the victim or any other person, even
if none of the circumstances above-mentioned were present in the
commission of the offense.

When the victim is killed or dies as a consequence of the detention or is

raped, or is subjected to torture or dehumanizing acts, the maximum penalty
shall be imposed. (Emphasis supplied)

The presence of any of these two circumstances - the ransom demand or the death
of the victim - already calls for the imposition for the death penalty. Here, they are both
present. The guilt of DEANG, ESPIRITU, and CATLI for the kidnapping for ransom and
death of JAY-JAY having been established beyond reasonable doubt, the Court has no
other recourse but to agree with the penalty imposed by the trial court.

Four Justices of the Court have continued to maintain their view that Republic Act
No. 7659 is unconstitutional insofar as it prescribes the death penalty. Nevertheless,
they submit to the ruling of the majority to the effect that this law is constitutional and
that the death penalty can be lawfully imposed in the case at bar.

In the matter of damages, the Court notes that the trial court awarded actual
damages in the amount of P30,000 for wake and funeral expenses, and P10,000 as
expenses for transporting the victim's body from Batangas to Pampanga. These must
be deleted for lack of supporting evidence. The amount of the ransom money,
less P100,000, must, however, be returned to the Tanhuecos.

The award of moral damages in the amount of P3 million must be reduced

to P500,000.
 The law also allows exemplary damages in criminal cases as part of the civil liability
of the malefactors when the crime is attended by one or more aggravating
circumstances.[47] As discussed above, this requisite has already been met. Exemplary
damages are, however, imposed "not to enrich one party or impoverish another but to
serve as a deterrent against or as a negative incentive to curb socially deleterious
actions."[48] In the case at bar, exemplary damages in the amount of P100,000 are
awarded to the private complainants, by way of example or correction, in addition to the
other damages herein awarded.[49]

Finally, the Court observes that no civil indemnity for the death of the victim was
decreed. In line with prevailing jurisprudence, [50] the amount of P50,000 is hereby also
awarded.

WHEREFORE, the decision of the Regional Trial Court, Branch 59, Angeles City, in
Criminal Case No. 95-320, sentencing accused-appellants ROMMEL DEANG, MELVIN
ESPIRITU, and NICSON CATLI to suffer the penalty of death, is hereby AFFIRMED,
with the following modifications as to damages:

(1) the award of actual damages in the amount of P30,000 for funeral and wake
expenses, and P10,000 for transporting the victim's body from Batangas to
Pampanga, are hereby set aside;

(2) the award of P3 million in moral damages is reduced to P500,000; and

(3) the amounts of P50,000 as indemnity for the death of Arthur Tanhueco,
and P100,000 as exemplary damages, are hereby also awarded.

The awards of restitution of the ransom money in the amount of P1,480,000, less
the P100,000 which was recovered, and attorney's fees in the amount of P50,000,
stand.

The aforesaid awards shall be paid to the heirs of Arthur Tanhueco and accused-
appellants are solidarity liable for the payment thereof.

In accordance with Article 83 of the Revised Penal Code, as amended by Section

25 of Republic Act No. 7659, upon finality of this decision, let the records of this case be
forwarded to the Office of the President for possible exercise of pardoning power.

Costs de officio.

SO ORDERED.
JOEY POTOT y SURIO, petitioner, vs. PEOPLE OF THE PHILIPPINES
and LOLITO DAPULAG, respondents.

DECISION

SANDOVAL-GUTIERREZ, J.:

After the accused has filed with the trial court a manifestation that he is not
appealing its Decision convicting him of homicide and that he is ready to serve his
sentence, can the same court, upon motion by the private complainant with the
conformity of the public prosecutor, set aside the said judgment and remand the
records of the case to the Office of the Provincial Prosecutor for re-evaluation of the
evidence and the filing of the corresponding charge? This is the issue raised in the
instant petition for review on certiorari.

Joey S. Potot, petitioner, was charged with homicide in Criminal Case No. 2739
before the Regional Trial Court (RTC), Branch 19, Catarman, Northern Samar. The
information against him, filed on December 12, 1999, alleges:

That on or about the 2nd day of November, 1999, at about 3:00 oclock in the early
morning in the public cemetery of the Municipality of Mondragon, Province of
Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, armed with a knife locally called dipang, with deliberate intent
to kill and without justifiable cause, did then and there wifully, unlawfully and
feloniously attack, assault and stab RODOLFO DAPULAG @ PILI with the use of
said weapon which the accused had provided himself for the purpose, thereby
inflicting upon said Rodolfo Dapulag @ Pili a mortal wound which caused the death
of said victim.

CONTRARY TO LAW. [1]

Upon arraignment on February 1, 2000, wherein the information was read to him
in his own dialect, petitioner, assisted by counsel, pleaded guilty to the charge.
[2]
Forthwith, he invoked not only the mitigating circumstance of plea of guilty, but
also the circumstance of voluntary surrender since, as shown in the records, he
surrendered voluntarily to the Philippine National Police (PNP) Headquarters
immediately after the commission of the crime. The public prosecutor did not raise
any objection. Instead, he manifested that there is no aggravating circumstance which
attended the commission of the crime.

Thereupon, the trial court, after being satisfied that petitioner understood the
meaning and consequences of his plea of guilty, rendered and promulgated its
Decision[3] in open court convicting him of homicide, with the mitigating
circumstances of plea of guilty and voluntary surrender appreciated in his favor. The
dispositive portion of the Decision reads:

WHEREFORE, the Court accepts the plea of guilty of Joey Potot y Sorio, and finds
him guilty beyond reasonable doubt of the crime of homicide, and appreciating in his
favor the mitigating circumstances of plea of guilty and voluntary surrender, with no
aggravating circumstance in attendance, and applying the Indeterminate Sentence
Law, sentences him to suffer an imprisonment ranging from two (2) years four (4)
months and one (1) day of prision correccional, as minimum, to eight (8) years and
one (1) day of prision mayor, as maximum; to indemnify the heirs of Rodolfo
Dapulag y Conge, also known as Pili, in the amount of P50,000.00; and to pay the
costs.

The period during which the accused has undergone preventive imprisonment shall be
deducted in full from the foregoing sentences involving deprivation of liberty should
the records reveal that he expressly agreed in writing to abide by the same rules and
regulations governing convicted prisoner during his entire detention period and if the
records show that he is entitled to the privilege under the law.

SO ORDERED.[4]

On February 3, 2000, petitioner, through counsel, filed a manifestation with

motion[5] informing the trial court that he is not appealing from the Decision and
praying that a commitment order be issued so he could immediately serve his
sentence. Attached to the motion is petitioner's letter to the court stating that he does
not intend to appeal from its Decision.[6]

However, on February 11, 2000, the private complainant, Rosalie Dapulag (wife
of the victim), filed through counsel, a motion for reconsideration/retrial [7] praying that
the Decision be set aside and that the case be heard again because there were
irregularities committed before and during the trial which caused miscarriage of
justice. The motion, which bears the conformity of the public prosecutor, alleges,
among others, that:

The true facts surrounding the commission of the crime as revealed by the
eyewitnesses, EDUARDO BOYSON and JIMUEL MARQUITA, on December 8,
1999 is that RODOLFO DAPULAG, private offended partys deceased husband, was
killed on that fateful morning by accused JOEY POTOT with the aid of DOMING
JARILLA and MARLITO NAZAM who respectively held the right and left arm of
Rodolfo Dapulag to ensure the commission of the crime by accused Joey Potot.

This information was deliberately withheld by the said eyewitnesses, especially

EDUARDO BOYSON, during the investigation conducted by the police and the
preliminary investigations conducted by the presiding judge of MCTC of
Mondragon-San Roque and the Office of the Provincial Prosecutor upon the
solicitations of Mayor Elito Dapulag, who in good faith believed that the inclusion of
Doming Jarilla and Marlito Nazam would make the prosecution of the case more
difficult. The eyewitnesses, who are likewise in the belief that indeed the inclusion
of the above-named persons would complicate the case, withheld the said
information until witness Jimuel Marquita revealed the same to the private offended
party on December 8, 1999.

xxxxxxxxx

The private offended party (not in her capacity as such, but as a citizen) has the right
to demand from the State the punishment of heinous crimes in accordance with
law. And such right is now in jeopardy of being lost for some causes not attributable
to her.

xxxxxxxxx

Hereto attached and made integral parts hereof are the affidavits of eyewitnesses
JIMUEL MARQUITA and EDUARDO BOYSON. (Emphasis supplied)

Petitioner opposed[8] the motion, asserting that there was no irregularity in the
preliminary investigation of the case and in the proceedings before the trial court; and
that the decision can no longer be modified or set aside because it became final when
he formally waived his right to appeal.
 The trial court, in its order dated May 3, 2000, [9] granted private complainant's
motion and set aside its February 1, 2000 Decision as proceeding from a rigged,
hence, sham hearing. It likewise ordered that the records of the case be remanded to
the Office of the Provincial Prosecutor for re-evaluation of the evidence and to file the
corresponding charge, thus:

From the records are gathered that the case, as originally referred to the Municipal
Circuit Trial Court, was for murder. In the conduct of the preliminary investigation,
said court determined that a prima faciecase exists and recommended the accused be
held for trial on the charge. In his resolution reviewing the records of the
preliminary investigation conducted by the municipal court, the prosecutor
entirely missed discussion of the participation of two others allegedly in
conspiracy with the accused. The exclusion of the two others identified as
Doming Jarilla and Marlito Nazam was orchestrated by the Municipal Mayor
who, in good faith, prevailed upon the witnesses not to implicate them. To these
foregoing, the Provincial Prosecutor is in conformity.

Accordingly, the Branch Clerk of Court shall remand the records hereof to the Office
of the Provincial Prosecutor for re-evaluation of the evidence and to file the
corresponding charge supported by the same.The motion or manifestation requesting
for the issuance of a commitment order filed by the defense is DENIED.

SO ORDERED.

Petitioner filed a motion for reconsideration [10] contending that the trial court has
no jurisdiction to issue the February 1, 2000 order as the Decision had become final,
and that the said order would place the accused in double jeopardy. In the order of
May 26, 2000,[11] the trial court denied the motion for reconsideration for the reason
that the State is not bound by the error or negligence of its prosecuting officers, hence,
jeopardy does not attach.

Petitioner now assails the orders of May 3 and 26, 2000.

The Solicitor General agrees with the petitioner that the challenged orders should
be set aside and that the February 1, 2000 Decision should be reinstated. [12]

We find the petition meritorious.

 Section 7, Rule 120 of the Revised Rules on Criminal Procedure, as amended,
provides:

SEC. 7. Modification of judgment. A judgment of conviction may, upon motion of

the accused, be modified or set aside before it becomes final or before appeal is
perfected. Except where the death penalty is imposed, a judgment becomes
final after the lapse of the period for perfecting an appeal, or when the sentence has
been partially or totally satisfied or served, or when the accused has waived in
writing his right to appeal, or has applied for probation. (7a) (Emphasis ours)

It is thus clear that only the accused may ask for a modification or setting aside of
a judgment of conviction. And this he must do before the said judgment becomes
final or before he perfects his appeal.Such judgment becomes final in any of the
following ways: (a) when no appeal is seasonably filed by the accused, except in case
of automatic review of the decision imposing the capital penalty; [13] (b) when he has
partially or totally served his sentence; (c) when he expressly waives his right to
appeal the judgment, except when the death penalty is imposed; or (d) when he
applies for probation. When one of these circumstances is present, the trial court
which rendered the judgment of conviction loses jurisdiction to alter, modify or
revoke it.[14]

It is an undisputed fact that on February 3, 2000, or three days after the

promulgation of the judgment of conviction, petitioner filed a manifestation expressly
waiving his right to appeal therefrom. His intention not to appeal is further indicated
by his prayer in the same manifestation for the immediate issuance of a commitment
order so he could serve his sentence. Such waiver has the effect of causing the
judgment to become final and unalterable. [15] Thus, it was beyond the authority of the
trial court to issue the order of May 3, 2000 setting aside its February 3, 2000
Decision which had attained finality.

In Calalang vs. Register of Deeds of Quezon City [16] and in a long line of cases, this
Court (En Banc) held that a judgment which has acquired the status of finality
becomes immutable. Any error, assuming one was committed in the judgment, will
not justify its amendment except only to correct clerical errors or mistakes.
 It is likewise procedurally impermissible for the trial court to grant private
complainant's motion for reconsideration of its Decision. Section 1, Rule 121 of the
same Rules provides:

SECTION 1. New trial or reconsideration. - At any time before a judgment

of conviction becomes final, the court may, on motion of the accused or at its own
instance but with the consent of the accused, grant a new trial or reconsideration.
(1a) (Emphasis ours)

Since the motion for reconsideration of the judgment of conviction was not initiated
by the accused (petitioner) or at the instance of the trial court with his consent, the
same should have been denied outright as being violative of the above provision.

At any rate, the records do not show any irregularity in the preliminary
investigation of the case before the Provincial Prosecutors Office. The motion for
reconsideration filed by the private complainant questions the (1) alleged failure of the
Provincial Prosecutor to appreciate the sworn statements of two prosecution witnesses
implicating two other individuals in the commission of the crime; and the (2)
downgrading by the Provincial Prosecutor of the initial charge of murder to
homicide. But the motion for reconsideration itself reveals that the supposed vital
information from two witnesses implicating two other persons in the crime was
deliberately withheld by the said witnesses during the police investigation and the
preliminary investigation conducted by the MCTC Judge and the Office of the
Provincial Prosecutor. Hence, the Provincial Prosecutor who reviewed the records
could not have possibly appreciated the alleged vital facts. Besides, the complainant
did not appeal from the Provincial Prosecutors finding of probable cause for the crime
of homicide against petitioner. It bears stressing at this point that the public prosecutor
has the quasi-judicial prerogative to determine what crime should be filed in court and
who should be charged therefor. He always assumes and retains full discretion and
control of the prosecution of all criminal actions. [17] As held by this Court in People vs.
Vergara:[18]

Section 5 of Rule 110 of the New Rules of Criminal Procedure expressly provides
that [a]ll criminal actions commenced by a complaint or information shall be
prosecuted under the direction and control of the fiscal. It must be remembered
that as public prosecutor he is the representative not of the ordinary party to a
controversy, but of a sovereignty whose obligation to govern impartially is as
compelling as its obligation to govern all; and whose interest, therefore, in a criminal
prosecution is not that it shall win a case, but that justice shall be done. As such, he is
in a peculiar and very definite sense the servant of the law, the twofold aim of which
is that guilt shall not escape or innocence suffer. Hence, the fiscal or public
prosecutor always assumes and retains full direction and control of the
prosecution of the case. The institution of a criminal action depends upon his
sound discretion. He has the quasi-judicial discretion to determine whether or
not a criminal case should be filed in court; whether a prima facie case exists to
sustain the filing of an Information; whether to include in the charge those who
appear to be responsible for the crime; whether to present such evidence which he
may consider necessary. (Emphasis ours)

Finally, we agree with the petitioner that the assailed orders would violate his
constitutional right against double jeopardy.[19] Such right prohibits any subsequent
prosecution of any person for a crime of which he has previously been acquitted or
convicted. The objective is to set the effects of the first prosecution forever at rest,
assuring the accused that he shall not thereafter be subjected to the peril and anxiety
of a second charge against him for the same offense. [20]

To invoke the defense of double jeopardy, the following requisites must be

present: (1) a valid complaint or information; (2) the court has jurisdiction to try the
case; (3) the accused has pleaded to the charge; and (4) he has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without his
express consent.[21]

These requisites have been established. Records show that petitioner was charged
with homicide in Criminal Case No. 2739 under a valid information before the trial
court which has jurisdiction over it.He was arraigned and pleaded guilty to the
charge. On the basis of his plea, petitioner was convicted and meted the corresponding
penalty. As petitioner has been placed in jeopardy for the crime of homicide, he
cannot be prosecuted anew for the same offense, or any offense which necessarily
includes or is necessarily included in the first offense charged. [22]

WHEREFORE, the instant petition is hereby GRANTED. The assailed orders

dated May 3, 2000 and May 26, 2000 issued in Criminal Case No. 2739 by the trial
court are SET ASIDE. Its Decision dated February 1, 2000 is REINSTATED.
 SO ORDERED.

SUSAN MENDOZA-ARCE, petitioner, vs. HONORABLE OFFICE OF

THE OMBUDSMAN (VISAYAS), PRIMO C. MIRO, DEPUTY
OMBUDSMAN, REGIONAL TRIAL COURT ROXAS CITY,
EXECUTIVE JUDGE, HONORABLE SALVADOR GUBATON,
OFFICE OF THE CITY FISCAL, HONORABLE JULIUS ABELA,
SANTIAGO B. VILLARUZ, respondents.

DECISION

MENDOZA, J.:

This is a petition for certiorari to annul the resolution, dated April 20, 2001, of the
Office of the Ombudsman (Visayas), finding a prima facie case for violation of 3(e) of
R.A. No. 3019 (Anti-Graft and Corrupt Practices Act) and Art. 171 of the Revised
Penal Code against petitioner Susan Mendoza-Arce, and the order, dated June 29,
2001, denying her motion for reconsideration.

The facts are as follows:

Respondent Santiago B. Villaruz is one of the oppositors in Special Proceeding

Case No. V-6433, entitled In the Matter of the Petition to Approve the Will of
Remedios Bermejo-Villaruz, deceased, v. Nicolas P. Villaruz.[1] The case, originally
assigned to the Regional Trial Court (RTC), Branch 15, Roxas City, of which Judge
Roger B. Patricio was presiding judge, was later re-assigned to Branch 19 of the same
court, presided over by Judge (now Justice of the Court of Appeals) Sergio Pestao. [2]

Respondent Santiago B. Villaruz was originally the administrator of the estate of

his mother Remedios Bermejo Villaruz. However, in an order issued by the trial court
on June 10, 1998, he was removed as such for patent neglect of his legal duties and
failure to comply with the court orders. In his place, respondents eldest brother,
Nicolas B. Villaruz, Jr., was appointed regular administrator, upon filing and approval
by this Court of an Administrators Bond in the amount of fifty thousand pesos
(P50,000.00).[3]
 In a motion, dated July 1, 1998, Nicolas filed a motion for the approval of his
bond, furnished by the Philippine Surety & Insurance, Inc., in the amount
of P50,000.00. Santiago and his brother Jose Ma. Villaruz opposed Nicolas motion
and prayed that Jose Maria be instead appointed regular administrator.[4] Attached to
their opposition was a certification, dated August 31, 1988, executed by their mother
Remedios before she passed away, authorizing Santiago to take possession of and/or
to manage her nipa lands, which were then in his care, for a period of 20 years or
during her lifetime, whichever was longer. Remedios Bermejo-Villaruz also gave
Santiago the option of leasing the properties for P120,000.00 a year plus land taxes.
[5]
The oppositors likewise submitted an agreement, dated February 6, 1993, executed
by the three children of Remedios Bermejo-Villaruz, in which they agreed to honor
the lease until August 23, 2008.[6]

In an order, dated September 22, 1998, Judge Patricio denied the oppositors
opposition, while recognizing the validity of the certification executed by Remedios
Bermejo-Villaruz and the agreement of the heirs, and stated that the administration of
the new administrator was subject to them. No mention of the agreement was,
however, made in the dispositive portion of the order, which simply read:

WHEREFORE, premises considered, for lack of merit, oppositors Opposition and

Motion dated July 15, 1998 is denied, while action on petitioners Motion to Approve
Administrators Bond dated July 1, 1998 is held in abeyance until after petitioner
submits to this Court, within ten (10) days from receipt of this order, an updated
certification from the Supreme Court to the effect that the Philippine Phoenix Surety
& Insurance, Inc. has no pending obligation and/ or liability to the government insofar
as confiscated bonds in civil and criminal cases are concerned. [7]

On October 12, 1998, Judge Sergio Pestao, to whom the case was in the meantime
reassigned, approved the administrators bond of respondent Nicolas B. Villaruz, Jr. in
an order which stated:

It appearing from the Certification issued by the Supreme Court that Philippine
Phoenix Surety and Insurance, Inc. has no pending obligation and/ or liabilities to the
government insofar as confiscated bonds in civil and criminal cases are concerned, the
Administrators bond filed by petitioner Nicolas B. Villaruz, is approved.
Send copy of this Order to petitioner through his counsel, to the Clerk of Court of this
court, and to the oppositors through their counsel. [8]

After receiving a copy of Judge Pestaos order, respondent Susan Mendoza-Arce,

Clerk of Court VI of the Regional Trial Court of Roxas City, prepared a Letter of
Administration (LOA) which read:

KNOW ALL MEN BY THESE PRESENTS:

That by order of this Court dated October 12, 1998, issued by Honorable Sergio
Pestao, Judge of the Regional Trial Court, Branch 19, Roxas City, Nicolas B. Villaruz,
Jr. has been appointed Administrator of the estate of Remedios Bermejo-Villaruz,
deceased, with full authority to take possession of all property/ies of said deceased in
any province or provinces in which it may be situated and to perform all other acts
necessary for the preservation of said property, he having filed a bond satisfactory to
the Court. Said Administrator shall within three months from the date of this
appointment return to the Court a true inventory and appraisal of the real and personal
estate of the deceased which have come into his possession or knowledge and shall
render a true and just account of his administration to the Court within one year and at
any other time when required by the Court.

IN WITNESS WHEREOF, I sign and seal these presents in Roxas City, Philippines,
this 16th day of October 1998.

(sgd.) Susan Mendoza-Arce

(t)SUSAN MENDOZA-ARCE

The LOA was based on the form prescribed in the Manual for Clerks of Court.
Accordingly, on December 7, 1998, administrator Nicolas B. Villaruz, Jr.,
[9]

accompanied by three armed security guards and respondents Deputy Sheriff Charles
Aguiling, took possession of the entire estate of the decedent, including the nipa lands
which had been leased to respondent Santiago B. Villaruz. [10]

This gave rise to the present action. In a letter-complaint to the Ombudsman,

dated March 25, 1999, respondent Santiago B. Villaruz alleged that petitioner
committed two crimes in issuing the LOA, to wit:
 1. Falsification by a public officer under Article 171, par. 3 of the Revised Penal
Code, by attributing to persons who have participated in an act or proceeding
statements other than those in fact made by them.

2. Corrupt practice in violation of 3(e) of the Anti-Graft and Corrupt Practices Act
(R.A. No. 3019) by causing any undue injury to any party, including the Government,
or giving any private party any unwarranted benefit, advantage or preference in the
discharge of his official administrative or judicial functions through manifest
partiality, evident bad faith or gross inexcusable negligence. [11]

Attached to his letter-complaint to the Ombudsman were affidavits executed by

respondent Santiago B. Villaruz and his employees, namely, Teresita B. Bechayda,
Ramon Benliro, Jr., Garry B. Bonales, Romeo S. Bolante, and Sulpico B. Blanco. [12] In
his affidavit, respondent accused petitioner of acting with manifest partiality, evident
bad faith and gross inexcusable negligence by falsely attributing to Judge Pestao the
appointment of Nicolas B. Villaruz as new administrator and investing him with full
authority to take possession of all property/ies of the decedent, because the fact was
that it was Judge Patricio who had appointed Nicolas administrator of the estate
subject to the terms and conditions of the lease agreement in favor of respondent
Santiago B. Villaruz. Respondent claimed that he had been deprived of income in the
amount of P33,000.00 every week, as well as of the bancas and boats used in his
business, as a result of the issuance of the order in question. [13]

In her report, dated May 13, 1999, Graft Investigation Officer Estrela Alma A.
Singco stated that the allegations in the complaint warrant further investigation and
recommended that petitioner be ordered to file her counter-affidavit. [14]

In her counter-affidavit, dated June 23, 1999, petitioner admitted issuing the LOA
in favor of Nicolas B. Villaruz, Jr. She claimed, however, that she acted in compliance
with the order of Presiding Judge Sergio Pestao and that, in preparing the LOA, she
merely adopted the legal form prescribed in the Manual for Clerks of Court, which
had been approved by this Court. She said she issued the LOA in line [with] my
official functions which [are] ministerial in nature and devoid of any bad faith and
with manifest partiality.[15]

In a reply-affidavit, dated June 29, 1999, respondent Santiago B. Villaruz

reiterated the arguments raised in his letter-complaint and asserted that legal forms are
mere guidelines in the preparation of legal documents and that respondent usurped the
functions of the branch clerk of court when she issued the LOA. [16]

In a resolution, dated April 20, 2001, Ricardo A. Rebollido, Graft Investigation

Officer II, found probable cause against petitioner. Based on the affidavits and
counter-affidavits submitted by the parties, he found petitioner guilty of the charge by
making it appear that it was Judge Pestao, instead of Judge Patricio, who had
appointed Nicolas B. Villaruz as administrator, without regard to the lease agreement
in favor of respondent Santiago B. Villaruz. The Graft Investigation Officer found that
although petitioners duties were ministerial, she should have read the order
recognizing the lease. The resolution concluded,

All things considered, respondent [now petitioner Susan Mendoza-Arce] in the

discharge of her official administrative or judicial functions, through manifest
partiality, evident bad faith, or gross inexcusable negligence caused undue injury to
complainant and gave unwarranted benefit, advantage or preference to Administrator
Nicolas B. Villaruz, Jr. who has been the one reaping the fruits and products of the
said 120 hectares of nipa lands the fruits and products of which lawfully and rightfully
belong to complainant as lessee.

WHEREFORE, premises considered, this Office finds a prima facie case against
respondent ATTY. SUSAN MENDOZA-ARCE for violation of Section 3(e) of
Republic Act 3019 otherwise known as the Anti-Graft & Corrupt Practices Act,
and for the crime of Falsification of Official Document under paragraph 3, Article
171 of the Revised Penal Code. Let the corresponding Informations be filed before
the proper court.[17]

Petitioner moved for a reconsideration, maintaining that her official duties as a

clerk of court were ministerial in nature and that she merely tried to comply with the
dispositive portion of orders and decisions of the trial court. She pointed out that
neither the order, dated June 10, 1998, nor the order, dated September 22, 1998, issued
by Judge Patricio mentioned the lease of nipa lands and that it was only in the text of
the order, dated September 22, 1998, that said lease was referred to. In discharging her
official duties, she argued, she could not be guilty of manifest partiality, evident bad
faith, or gross inexcusable negligence, as asserted by complainant. [18]
 In an order, dated June 29, 2001, the Graft Investigation Officer found no new
matters or issues raised therein which would justify the reversal or modification of our
earlier findings, and held that in any event the grounds relied by respondent are
evidentiary matters which could well be ventilated before the court of justice. Hence,
this petition.

We first dispose of a procedural issue raised by respondent Santiago B. Villaruz.

In his Comment, dated October 12, 2001, respondent invokes Rule 65, 4 of the 1997
Rules of Civil Procedure and contends that the petition for certiorari in this case
should have been filed in the Court of Appeals. This provision states in pertinent
parts:

SEC. 4. When and where petition filed.- The petition shall be filed not later than sixty
(60) days from notice of the judgment, order or resolution. In case a motion for
reconsideration or new trial is timely filed, whether such motion is required or not, the
sixty (60) day period shall be counted from notice of the denial of said motion.

The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions
of a lower court or of a corporation, board, officer or person, in the Regional Trial
Court exercising jurisdiction over the territorial area as defined by the Supreme
Court. It may also be filed in the Court of Appeals whether or not the same is in aid of
its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency,
unless otherwise provided by law or these rules, the petition shall be filed in and
cognizable only by the Court of Appeals.

No extension of time to file the petition shall be granted except for compelling reason
and in no case exceeding fifteen (15) days.

The contention has no merit. In Tirol, Jr. v. del Rosario,[19] we held that although as
a consequence of the decision in Fabian v. Desierto[20] appeals from the orders,
directives, or decisions of the Ombudsman in administrative cases are now cognizable
by the Court of Appeals, nevertheless in cases in which it is alleged that the
Ombudsman has acted with grave abuse of discretion amounting to lack or excess of
jurisdiction, a special civil action of certiorari under Rule 65 may be filed in this Court
to set aside the Ombudsmans order or resolution. In Kuizon v. Desierto,[21] we again
held that this Court has jurisdiction over petitions for certiorari questioning
resolutions or orders of the Office of the Ombudsman in criminal cases.
 Coming now to the merits, we find the petition meritorious.

To begin with, in Posadas v. Ombudsman,[22] we held: The rule, of course, is that a

criminal prosecution cannot be enjoined. But as has been held, infinitely more
important than conventional adherence to general rules of criminal procedure is
respect for the citizens right to be free not only from arbitrary arrest and punishment
but also from unwarranted and vexatious prosecution. In that case, the Ombudsman
ordered the prosecution of certain officials of the University of the Philippines
in Diliman, Quezon City for preventing the National Bureau of Investigation from
arresting without warrants student-suspects in the killing of a fraternity member. The
question was whether there was probable cause for violation of P.D. No. 1829, which
makes it unlawful for anyone to obstruct the apprehension and prosecution of criminal
offenders. The Court found none and enjoined the Ombudsman and his agents from
prosecuting the U.P. officials. The attempted arrest was declared illegal and petitioners
to be simply protecting the rights of the students.

Indeed, while this Courts policy is one of non-interference in the conduct of

preliminary investigations, leaving the investigating officers with a latitude of
discretion in the determination of probable cause, [23] nonetheless exceptions to the
general rule have been recognized, to wit:

1. When necessary to afford adequate protection to the constitutional rights of the accused;

2. When necessary for the orderly administration of justice or to avoid oppression or

multiplicity of actions;

3. When there is a prejudicial question which is sub judice;

4. When the acts of the officer are without or in excess of authority;

5. Where the prosecution is under an invalid law, ordinance or regulation;

6. When double jeopardy is clearly apparent;

7. Where the court has no jurisdiction over the offense;

8. Where it is a case of persecution rather than prosecution;

9. Where the charges are manifestly false and motivated by the lust for vengeance;
 10. When there is clearly no prima facie case against the accused and a motion to quash on that
ground has been denied.[24]

In this case, we hold that the Office of the Ombudsman (Visayas) acted without or
in excess of its authority when it ordered the filing of informations against petitioner
for violation of R.A. No. 3019, 3(e) and the Revised Penal Code, Art. 171, par. 3,
despite the absence of probable cause, defined as such ground as engenders a well-
founded belief that a crime has been committed and the respondent is probably guilty
thereof, warranting the filing of the case in court. [25]

First. Petitioner Arce allegedly violated 3 (e) of Republic Act No. 3019 by
including the phrase with full authority to take possession of all property/ies of said
deceased in any province or provinces in which it may be situated . . . in the LOA she
prepared in Special Proceeding Case No. V-6433. This provision states:

SEC. 3. Corrupt Practices of Public Officers. In addition to acts or omissions of

public officers already penalized by existing law, the following shall constitute corrupt
practices of any public officer and are hereby declared to be unlawful: ....

(e) Causing any undue injury to any party, including the Government, or giving any
private party any unwarranted benefits, advantage or preference in the discharge of his
official, administrative or judicial functions through manifest partiality, evident bad
faith or gross inexcusable negligence. This provision shall apply to officers and
employees of offices or government corporations charged with the grant of licenses or
permits or other concessions.

The elements of the offense are:

1. That the accused are public officers or private persons charged in conspiracy
with them;

2. That said public officers committed the prohibited acts during the performance
of their official duties or in relation to their public positions;

3. That they caused undue injury to any party, whether the Government or a
private party;
 4. That such injury is caused by giving unwarranted benefits, advantage or
preference to such parties; and

5. That the public officers have acted with manifest partiality, evident bad faith or
gross inexcusable negligence.[26]

These elements must all be proven. [27] In this case, there is no basis for the finding
that in issuing the LOA in question petitioner acted with partiality, or bias which
excites a disposition to see and report matters as they are wished for rather than as
they are, with bad faith, which connotes not only bad judgment or negligence but also
a dishonest purpose or conscious wrongdoing, a breach of duty amounting tofraud,
nor with gross negligence, which is negligence characterized by the want of even
slight care, acting or omitting to act in a situation where there is a duty to act, not
inadvertently but willfully and intentionally, with a conscious indifference to
consequences as far as other persons are concerned. [28]

The Manual for Clerks of Court describes the clerk of court as an officer of the
Court, a public officer, and an officer of the law, [although] the position is not that of a
judicial officer, nor is it synonymous with the Court. . . . The office is essentially a
ministerial one.[29] Petitioner performed a ministerial duty in preparing the letter of
administration based on the dispositive portions of the orders dated September 22,
1998 and October 12, 1998. She merely copied substantially the form for letters of
administration prescribed in the Manual for Clerks of Courts. The LOA may not be
accurate for lack of reference to the lease agreement in favor of respondent Santiago
B. Villaruz, but it cannot be said with certainty that she acted either with gross
negligence or from some corrupt motive. The fact is that, instead of employing her
own words, she used phrases in the Manual prescribed by this Court.

Second. The Office of the Ombudsman (Visayas) found a prima facie case for
falsification under Article 171, par. 3 of the Revised Penal Code against petitioner
because she stated in the letter of administration that Nicolas B. Villaruz, Jr. had been
appointed administrator by Judge Sergio Pestao when what the latter did was to
approve the administrators bond.

We disagree with the Ombudsmans findings. Art. 171, par. 3 of the Revised Penal
Code provides:
Falsification by public officer, employee, or notary or ecclesiastical minister. The
penalty of prision mayor and a fine not to exceed 5,000 pesos shall be imposed upon
any public officer, employee, or notary who, taking advantage of his official position,
shall falsify a document by committing any of the following acts:

....

3. Attributing to persons who have participated in an act or proceeding statements

other than those in fact made by them.

Criminal intent must be shown in felonies committed by means of dolo, such as

falsification.[30] In this case, there is no reasonable ground to believe that the requisite
criminal intent or mens rea was present. Petitioner prepared the letter of
administration on the basis of the order of Judge Pestao, dated October 12,
1998, approving the administrators bond filed by Nicolas B. Villaruz, Jr. By the
approval of his bond, Nicolas B. Villaruz, Jr. qualified as administrator so that in a
sense, therefore, the statement in the letter of administration [t]hat by order of this
Court dated October 12, 1998, issued by Honorable Sergio Pestao, Judge of the
Regional Trial Court, Branch 19, Roxas City, Nicolas B. Villaruz, Jr. has been
appointed Administrator of the estate of Remedios Bermejo-Villaruz, deceased is
correct. There was nothing willful or felonious in petitioners act warranting her
prosecution for falsification.

WHEREFORE, the petition is GRANTED and the resolution dated April 20,
2001, of the Graft Investigation Officer, as approved by the Office of the
Ombudsman, and his order, dated June 29, 2001, are hereby SET ASIDE and the
complaint of respondent Santiago B. Villaruz against petitioner Susan Mendoza-Arce
for violation of R.A. No. 3019, 3(e) and for falsification committed by a public officer
under Art. 171 of the Revised Penal Code is DISMISSED.

SO ORDERED.

PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. ZEIDA

AURORA B. GARFIN, In her capacity as Presiding Judge of RTC,
 Branch 19, of the City of Naga and SERAFIN
SABALLEGUE, respondents.

DECISION

PUNO, J:

For determination in this petition is a question in procedural law - - -

whether an information filed by a state prosecutor without the prior written
authority or approval of the city or provincial prosecutor or chief state
prosecutor should be dismissed after the accused has entered his plea under
the information.

Petitioner comes before us with a petition

for certiorari and mandamus under Rule 65 of the Revised Rules of Court,
seeking to declare as null and void the Orders issued by the Regional Trial
Court of Naga City, Branch 19 dated February 26, 2002 and April 3, [1]

2002 which dismissed for lack of jurisdiction the case of People vs. Serafin
[2]

Saballegue, Criminal Case No. RTC 2001-0597, and denied petitioners

motion for reconsideration.

The antecedent facts are undisputed.

On June 22, 2001, private respondent was charged with violation of

Section 22(a) in relation to Sections 19(b) and 28(e) of Republic Act No. 8282,
otherwise known as the Social Security Act, in an information which reads:

The undersigned State Prosecutor of the Office of the Regional State Prosecutor,
Legazpi City, accuses SERAFIN SABALLEGUE, as proprietor of Saballegue
Printing Press with business address at 16 San Mateo St., Peafrancia Ave., Naga City
for Violation of Section 22(a) in relation to Sections 19(b) and 28(e) of R.A. 8282
otherwise known as the Social Security Act of 1997, committed as follows:

That on or about February 1990 and up to the present, in the City of Naga,
Philippines, within the functional jurisdiction of SSS Naga Branch and the territorial
jurisdiction of this Honorable Court, the above named accused, while being the
proprietor of Saballegue Printing Press, did then and there willfully, unlawfully, and
criminally refuse and fail and continuously refuse and fail to remit the premiums due
for his employee to the SSS in the amount of SIX THOUSAND FIVE HUNDRED
THIRTY-THREE PESOS (P6,533.00), Philippine Currency, representing SSS and EC
premiums for the period from January 1990 to December 1999 (n.i.), and the 3%
penalty per month for late remittance in the amount of ELEVEN THOUSAND ONE
HUNDRED FORTY-THREE PESOS and 28/100 (P11,143.28) computed as of 15
March 2000, despite lawful demands by letter in violation of the above-cited
provisions of the law, to the damage and prejudice of the SSS and the public in
general.

CONTRARY TO LAW.

Legazpi City for Naga City. 22 June 2001.

(sgd.) ROMULO SJ. TOLENTINO

State Prosecutor

Special Prosecutor on SSS Cases

in Region V [3]

The information contains a certification signed by State Prosecutor

Romulo SJ. Tolentino which states:

I hereby certify that the required investigation in this case has been conducted by the
undersigned Special Prosecutor in accordance with law and under oath as officer of
the court, that there is reasonable ground to believe that the offense has been
committed, that the accused is probably guilty thereof and that the filing of the
information is with the prior authority and approval of the Regional State Prosecutor. [4]

The case was raffled to Branch 19 of the Regional Trial Court of Naga City
presided by respondent judge Hon. Zeida Aurora B. Garfin. On September 24,
2001, accused Serafin Saballegue pleaded not guilty to the charge and the
case was set for pre-trial. Three days thereafter, the accused filed a motion to
[5]

dismiss on the ground that the information was filed without the prior written
[6]

authority or approval of the city prosecutor as required under Section 4, Rule

112 of the Revised Rules of Court. [7]
 The People, through State Prosecutor Tolentino, filed an opposition,
against which the accused filed a rejoinder. The People filed a reply to the
[8] [9]

rejoinder on December 21, 2001. A rejoinder to the reply was filed by the
[10] [11]

accused on January 21, 2002.

After considering the arguments raised, the trial court granted the motion
to dismiss in its first questioned Order dated February 26, 2002, to wit:

After considering the respective arguments raised by the parties, the Court believes
and so resolves that the Information has not been filed in accordance with Section 4,
par. 3 of Rule 112 of the 2000 Rules on Criminal Procedure, thus:

Rule 112, Section 4 x x x x x x

No complaint or information may be filed or dismissed by an investigating prosecutor

without the prior written authority or approval of the provincial or city prosecutor or
chief state prosecutor or the Ombudsman or his deputy.

Expresio unius est exclusio alterius.

The Information will readily show that it has not complied with this rule as it has not
been approved by the City Prosecutor.

This Court holds that the defendants plea to the Information is not a waiver to file a
motion to dismiss or to quash on the ground of lack of jurisdiction. By express
provision of the rules and by a long line of decisions, questions of want of jurisdiction
may be raised at any stage of the proceedings (People vs. Eduarte, 182 SCRA 750).

The Supreme Court in Villa vs. Ibaez (88 Phil 402) dwelt on lack of authority of the
officer who filed the information and on jurisdiction at the same time, pertinent
portions run as follows:

The defendant had pleaded to the information before he filed a motion to quash, and it
is contended that by his plea he waived all objections to the information. The
contention is correct as far as formal objections to the pleadings are concerned. But by
clear implication, if not by express provision of section 10 of Rule 113 of the Rules of
Court, and by a long line of uniform decisions, questions of want of jurisdiction may
be raised at any stage of the proceedings. Now, the objection to the respondents
actuations goes to the very foundations of jurisdiction. It is a valid information signed
by a competent officer which, among other requisites, confers jurisdiction on the court
over the person of the accused and the subject matter of the accusation. In consonance
with this view, an infirmity of the nature noted in the information cannot be cured by
silence, acquiescence, or even by express consent.

Prosecutor Tolentino also contends that having been duly designated to assist the City
Prosecutor in the investigation and prosecution of all SSS cases by the Regional State
prosecutor as alter ego of the Secretary of Justice in Region V, then that authority may
be given to other than the City Prosecutor. The Court finds this contention to be
devoid of merit. The Regional State Prosecutor is not the alter ego of the Secretary of
Justice but a mere subordinate official and if ever the former files cases, it is by virtue
of a delegated authority by the Secretary of Justice. Potestas delegada non potesta
delegare (sic) what has been delegated cannot be redelegated.

In his opposition, the state prosecutor also attached a memorandum dated June 22,
2001 by Regional State Prosecutor Santiago M. Turingan addressed to Provincial
Prosecutor and City Prosecutors of Region V directing them to inhibit and to append
the following NOTATION after the certification in the Information for filing.

NOTATION: The herein City/Provincial Prosecutor is inhibiting from this case and
the Special Prosecution Team on SSS Cases in Region V is authorized to dispose of
the case without my approval in view of the request for inhibition of the SSS Regional
Manager as granted by the Regional State Prosecutor.

A perusal of the Information, however, would readily show that nowhere in the
Information has the City Prosecutor of Naga City appended the above-quoted
notation/inhibition. At most, the authority of the special prosecutor is only for the
conduct of preliminary investigations and the prosecution of cases after they are filed.
The Court, however, believes that the filing of this Information must be in conformity
with the Rules on Criminal Procedure, particularly Section 4 of Rule 112.

WHEREFORE, premises considered and for lack of jurisdiction, the Court hereby
resolves to DISMISS this case without pronouncement as to cost.

SO ORDERED. [12]
 A motion for reconsideration was filed by the People contending that as a
special prosecutor designated by the regional state prosecutor to handle SSS
cases within Region V, State Prosecutor Tolentino is authorized to file the
information involving violations of the SSS law without need of prior approval
from the city prosecutor. Letters of commendation from Chief State
[13]

Prosecutor Jovencito Zuo and Secretary Hernando Perez were offered as

[14] [15]

proof to show that State Prosecutor Tolentinos authority to file the information
was recognized. In response, the defense pointed out in its opposition that the
motion for reconsideration lacked a notice of hearing, hence it is pro forma or
a mere scrap of paper. [16]

On April 3, 2002, respondent judge issued the second questioned Order

which reads:

Acting upon the Motion for Reconsideration filed by State Prosecutor Romulo SJ.
Tolentino, Special Prosecutor on SSS cases in Region V, and it appearing that the
same has failed to comply with the requirement of notice prescribed in Sections 4 and
5, Rule 15 of the Rules of Court, the same is hereby DENIED for being a mere scrap
of paper.

SO ORDERED. [17]

Hence, this petition by the People through Regional State Prosecutor

Santiago Turingan and State Prosecutor Romulo SJ. Tolentino. Petitioner
attributes grave abuse of discretion amounting to lack or excess of jurisdiction
on the part of respondent judge, viz: [18]

1. RESPONDENT JUDGE DISMISSED THE INFORMATION WITHOUT THE

REQUIRED SUPPORTING FACTUAL AND LEGAL BASES;

2. RESPONDENT JUDGE DELIBERATELY AND CAPRICIOUSLY IGNORED THE

PRESUMPTION OF REGULARITY IN FAVOR OF THE PROSECUTION WITHOUT
THE REQUIRED SUFFICIENCY OF REBUTTAL EVIDENCE. THE WORD MAY IN
SEC. 4, RULE 112 OF THE RULES OF COURT IS NOT MANDATORY;

3. RESPONDENT JUDGE COMMITTED GRAVE ERROR IN DELIBERATELY

IGNORING THE JUDICIALLY KNOWN INHIBITION OF THE CITY PROSECUTOR
AND THE SETTLED JURISPRUDENCE ON THE MATTER;
 4. RESPONDENT JUDGE GRAVELY ABUSED HER DISCRETION IN INTERFERING
WITH THE PURELY EXECUTIVE FUNCTION OF FILING AN INFORMATION BY
RULING ON THE AUTHORITY OF THE FILING OFFICER TO FILE THE
INFORMATION.

The Office of the Solicitor General (OSG) filed its comment in compliance
[19]

with this Courts Resolution dated September 23, 2002. It opines that the
[20]

dismissal of the information is mandated under Section 4, Rule 112 of the

Rules of Criminal Procedure.

Private respondent contends that: 1) the instant petition was filed out of
[21]

time; 2) the special State Prosecutor is only authorized to conduct preliminary

investigation and prosecution of SSS cases and not to sign the information;
and 3) the City Prosecutor did not expressly inhibit himself from handling SSS
cases nor signing the information.

We shall first resolve the procedural issues. Respondent contends that the
motion for reconsideration filed on April 1, 2002 is late because it was filed
eighteen days after March 14, 2002, the date when petitioner received the first
questioned order. Respondent has overlooked that the 15th day after March 14
is a Good Friday. Hence, petitioners last day to file the motion for
reconsideration was on the next working day after Good Friday, April 1. [22]

Next, respondent argues that having been considered as a mere scrap of

paper, the motion for reconsideration of the petitioner did not toll the running
of the reglementary period. Respondent, however, erroneously assumes that
the present case is an appeal by certiorari under Rule 45. As stated at the
outset, this is an original petition for certiorari and mandamus under Rule 65.

Sec. 2, Rule 37 of the Rules of Court is clear. It provides that (a) pro forma
motion for new trial or reconsideration shall not toll the reglementary
period of appeal. (emphases supplied) Hence, the same provision has no
application in the case at bar.

The reckoning date is the receipt of the second questioned Order and not
the receipt of the first. Section 4, Rule 65, as amended by En Banc Resolution
A.M. No. 00-2-03-SC, September 1, 2000, provides, viz:
Sec. 4. When and where petition filed.-- The petition may be filed not later than sixty
(60) days from notice of the judgment, order or resolution. In case a motion for
reconsideration or new trial is timely filed, whether such motion is required or not, the
sixty (60)- day period shall be counted from notice of the denial of said motion.

xxxxxxxxx

As shown by the records, petitioner received the first questioned order

dated February 26, 2002 on March 14, 2002. A motion for reconsideration
[23]

was timely filed on April 1, 2002 which was dismissed for lack of notice of
[24]

hearing in an Order dated April 3, 2002. This second questioned order was
[25]

received by petitioner on April 11, 2002. A motion for extension of time to file
[26]

a petition for review on certiorari was filed on April 18, 2002. A motion for
[27]

leave to file and admit the instant petition for certiorari and mandamus was
filed on May 29, 2002. Having been filed within the reglementary period,
[28]

petitioners motion for leave to file the instant petition was granted in this
Courts Resolution dated July 15, 2002. [29]

We now come to the other issue: whether the prior written authority and
approval of the city or provincial prosecutor or chief state prosecutor is
necessary in filing the information at bar.

Petitioner takes the unbending view that the approval of the city or
provincial prosecutor is no longer required. It is contended that the Regional
State Prosecutor has already directed the city or provincial prosecutor to
inhibit from handling SSS cases. Petitioner cites the letter of Regional State
[30]

Prosecutor Santiago M. Turingan to SSS Regional Director in Naga City dated

June 6, 1997 and copies of Regional Orders No. 97-024-A and 2001-
[31] [32]

033 dated July 14, 1997 and September 28, 2001, respectively, showing the
[33]

designation of State Prosecutor Tolentino as special prosecutor for SSS cases

in Region V. Petitioner relies on Galvez, et al. v. Court of Appeals, et al.
and Sanchez v. Demetriou, et al. to prop up its contention that given the
[34] [35]

designation of State Prosecutor Tolentino, the city prosecutor need not

participate in the filing and prosecution of the information in the case at bar.

We disagree. Under Presidential Decree No. 1275, the powers of a

Regional State Prosecutor are as follows:
Sec. 8. The Regional State Prosecution Office: Functions of Regional State
Prosecutor. - The Regional State Prosecutor shall, under the control of the Secretary
of Justice, have the following functions:

a) Implement policies, plans, programs, memoranda, orders, circulars and rules and
regulations of the Department of Justice relative to the investigation and prosecution
of criminal cases in his region.

b) Exercise immediate administrative supervision over all provincial and city

fiscals and other prosecuting officers of provinces and cities comprised within his
region.

c) Prosecute any case arising within the region.

d) With respect to his regional office and the offices of the provincial and city fiscals
within his region, he shall:

1) Appoint such member of subordinate officers and employees as may be necessary;

and approve transfers of subordinate personnel within the jurisdiction of the regional
office.

2) Investigate administrative complaints against fiscals and other prosecuting officers

within his region and submit his recommendation thereon to the Secretary of Justice
who shall, after review thereof, submit the appropriate recommendation to the Office
of the President: Provided, that where the Secretary of Justice finds insufficient
grounds for the filing of charges, he may render a decision of dismissal thereof.

3) Investigate administrative complaints against subordinate personnel of the region

and submit his recommendations thereon to the Secretary of Justice who shall have
the authority to render decision thereon. (emphases supplied)

The power of administrative supervision is limited to the authority of the

department or its equivalent to generally oversee the operations of such
agencies and to insure that they are managed effectively, efficiently and
economically but without interference with day-to-day activities; or require the
submission of reports and cause the conduct of management audit,
performance evaluation and inspection to determine compliance with policies,
standards and guidelines of the department; to take such action as may be
necessary for the proper performance of official functions, including
rectification of violations, abuses and other forms of maladministration; and to
review and pass upon budget proposals of such agencies but may not
increase or add to them. This is distinguished from the power of supervision
[36]

and control which includes the authority to act directly whenever a specific
function is entrusted by law or regulation to a subordinate; direct the
performance of duty; restrain the commission of acts; review, approve,
reverse or modify acts and decisions of subordinate officials or units;
determine priorities in the execution of plans and programs; and prescribe
standards, guidelines, plans and programs. [37]

The Regional State Prosecutor is clearly vested only with the power of
administrative supervision. As administrative supervisor, he has no power to
direct the city and provincial prosecutors to inhibit from handling certain cases.
At most, he can request for their inhibition. Hence, the said directive of the
regional state prosecutor to the city and provincial prosecutors is questionable
to say the least.

Petitioner cannot lean on the cases of Galvez and Sanchez. In those

cases, the special prosecutors were acting under the directive of the
Secretary of Justice. They were appointed in accordance with law. Nowhere in
P.D. No. 1275 is the regional state prosecutor granted the power to appoint a
special prosecutor armed with the authority to file an information without the
prior written authority or approval of the city or provincial prosecutor or chief
state prosecutor. P.D. No. 1275 provides the manner by which special
prosecutors are appointed, to wit:

Sec. 15. Special Counsels. - Whenever the exigencies of the service require the
creation of positions of additional counsel to assist provincial and city fiscals in
the discharge of their duties, positions of Special Counsels may be created by any
province or city, subject to the approval of the Secretary of Justice, and with
salaries chargeable against provincial or city funds. The Secretary of Justice shall
appoint said Special Counsels, upon recommendation of the provincial or city
fiscal and regional state prosecutors concerned, either on permanent or
temporary basis.
Special Counsel shall be appointed from members of the bar and shall be allowed not
more than the salary rate provided in this Decree for the lowest rank or grade of
assistant fiscal in the province or city where assigned. (emphases supplied)

Under Department Order No. 318, Defining the authority, duties and
[38]

responsibilities of regional state prosecutors, then Acting Secretary of Justice

Silvestre H. Bello III ordered the appointed regional state prosecutors (which
included Regional State Prosecutor Turingan for Region V) to, among others,
(i)nvestigate and/or prosecute, upon the directive of the Secretary of
Justice, specific criminal cases filed within the region. (emphasis supplied)

In the case at bar, there is no pretense that a directive was issued by the
Secretary of Justice to Regional State Prosecutor Turingan to investigate
and/or prosecute SSS cases filed within his territorial jurisdiction. A bare
reading of the alleged letter of commendation by then Secretary Hernando
Perez would show that it does not amount to a directive or even a recognition
of this authority. In fact, while the letter of Secretary Perez commends the
efforts of Regional State Prosecutor Turingan in successfully prosecuting SSS
cases, it also negates his authority to prosecute them. Secretary Perez called
the Regional State Prosecutors attention to DOJ Circular No. 27, series of
2001, which states that all important cases of the SSS should be referred to
the Office of the Government Corporate Counsel. Thus, Regional State
[39]

Prosecutor Turingan cannot be considered a special prosecutor within the

meaning of the law.

Petitioner argues that the word may is permissive. Hence, there are cases
when prior written approval is not required, and this is one such instance. This
is too simplistic an interpretation. Whether the word may is mandatory or
directory depends on the context of its use. We agree with the OSG that the
use of the permissive word may should be read together with the other
provisions in the same section of the Rule. The paragraph immediately
preceding the quoted provision shows that the word may is mandatory. It
states:

Sec. 4, Rule 112. x x x

Within five (5) days from his resolution, he (investigating prosecutor) shall forward
the record of the case to the provincial or city prosecutor or chief state prosecutor, or
to the Ombudsman or his deputy in cases of offenses cognizable by the
Sandiganbayan in the exercise of its original jurisdiction. They shall act on the
resolution within ten (10) days from their receipt thereof and shall immediately inform
the parties of such action. (emphasis supplied)

Having settled that the prior authority and approval of the city, provincial or
chief state prosecutor should have been obtained, we shall now resolve the
more important issue: whether the lack of prior written approval of the city,
provincial or chief state prosecutor in the filing of an information is a defect in
the information that is waived if not raised as an objection before arraignment.

We hold that it is not.

The provisions in the 2000 Revised Rules of Criminal Procedure that

demand illumination are Sections 3 and 9 of Rule 117 in relation to paragraph
3, Section 4 of Rule 112, to wit:

Rule 117, Section 3. Grounds.The accused may move to quash the complaint or
information on any of the following grounds:

(a) That the facts charged do not constitute an offense;

(b) That the court trying the case has no jurisdiction over the offense charged;

(c) That the court trying the case has no jurisdiction over the person of the accused;

(d) That the officer who filed the information had no authority to do so;

(e) That it does not conform substantially to the prescribed form;

(f) That more than one offense is charged except when a single punishment for
various offenses is prescribed by law;

(g) That the criminal action or liability has been extinguished;

(h) That it contains averments which, if true, would constitute a legal excuse or
justification; and
(i) That the accused has been previously convicted or acquitted of the offense charged,
or the case against him was dismissed or otherwise terminated without his express
consent.

xxx xxx xxx

Section 9. Failure to move to quash or to allege any ground therefor.The failure of the
accused to assert any ground of a motion to quash before he pleads to the complaint or
information, either because he did not file a motion to quash or failed to allege the
same in said motion, shall be deemed a waiver of any objections except those based
on the grounds provided for in paragraphs (a), (b), (g), and (i) of section 3 of this
Rule. (emphasis supplied)

Rule 112, Section 4, paragraph 3 provides, viz:

No complaint or information may be filed or dismissed by an investigating prosecutor

without the prior written authority or approval of the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy. (emphasis
supplied)

Private respondent and the OSG take the position that the lack of prior
authority or approval by the city or provincial prosecutor or chief state
prosecutor is an infirmity in the information that prevented the court from
acquiring jurisdiction over the case. Since lack of jurisdiction is a defect that
may be raised as an objection anytime even after arraignment, the respondent
judge did not err in granting the motion to dismiss based on this ground. As
basis, they cite the case of Villa v. Ibaez, et al. where we held, viz:
[40]

The defendant had pleaded to an information before he filed a motion to quash, and it
is contended that by his plea he waived all objections to the informations. The
contention is correct as far as formal objections to the pleadings are concerned. But by
clear implication, if not by express provision of section 10 of Rule 113 of the Rules of
Court (now Section 9 of Rule 117), and by a long line of uniform decisions, questions
of want of jurisdiction may be raised at any stage of the proceeding. Now, the
objection to the respondents actuations goes to the very foundation of the
jurisdiction. It is a valid information signed by a competent officer which, among
other requisites, confers jurisdiction on the court over the person of the accused
and the subject matter of the accusation. In consonance with this view, an
infirmity in the information cannot be cured by silence, acquiescence, or even by
express consent. (emphasis supplied)
[41]

The case of Villa is authority for the principle that lack of authority on the
part of the filing officer prevents the court from acquiring jurisdiction over the
case. Jurisdiction over the subject matter is conferred by law while jurisdiction
over the case is invested by the act of plaintiff and attaches upon the filing of
the complaint or information. Hence, while a court may have jurisdiction over
[42]

the subject matter, like a violation of the SSS Law, it does not acquire
jurisdiction over the case itself until its jurisdiction is invoked with the filing of
the information.

In the United States, an information has been held as a jurisdictional

requirement upon which a defendant stands trial. Thus, it has been ruled that
in the absence of probable cause, the court lacks jurisdiction to try the criminal
offense. In our jurisdiction, we have similarly held that:
[43]

While the choice of the court where to bring an action, where there are two or more
courts having concurrent jurisdiction thereon, is a matter of procedure and not
jurisdiction, as suggested by appellant, the moment such choice has been exercised,
the matter becomes jurisdictional. Such choice is deemed made when the proper
complaint or information is filed with the court having jurisdiction over the
crime, and said court acquires jurisdiction over the person of the defendant,
from which time the right and power of the court to try the accused
attaches. (citations omitted) It is not for the defendant to exercise that choice,
which is lodged upon those who may validly file or subscribe to the complaint or
information under sections 2 and 3 of Rule 106 of the Rules of Court. (emphasis
[44]

supplied)

A closer look at Villa would be useful in resolving the issue at hand. In that
case, Atty. Abelardo Subido, Chief of the Division of Investigation in the Office
of the Mayor of Manila, was appointed by the Secretary of Justice as special
counsel to assist the City Fiscal of Manila in the cases involving city
government officials or employees. Pursuant to his appointment, Atty. Subido
filed an information against Pedro Villa for falsification of a payroll. Atty.
Subidos authority to file the information was challenged on the ground that he
was disqualified for appointment under Section 1686 of the Revised
Administrative Code, as amended by Section 4 of Commonwealth Act No.
144, to wit:

SEC. 1686. Additional counsel to assist fiscal. The Secretary of Justice may appoint
any lawyer, being either a subordinate from his office or a competent person not in the
public service, temporarily to assist a fiscal or prosecuting attorney in the discharge of
his duties, and with the same authority therein as might be exercised by the Attorney
General or Solicitor General. [45]

We held, viz:

Appointments by the Secretary of Justice in virtue of the foregoing provisions of the

Revised Administrative Code, as amended, were upheld in Lo Cham vs. Ocampo et
al., 44 Official Gazette, 458, and Go Cam et al., vs. Gatmaitan et al., (47 Official
Gazette, 5092). But in those cases, the appointees were officials or employees in one
or another of the bureaus or offices under the Department of Justice, and were rightly
considered subordinates in the office of the Secretary of Justice within the meaning of
section 1686, ante.

The case at bar does not come within the rationale of the above decisions. Attorney
Subido is a regular officer or employee in the Department of Interior, more
particularly in the City Mayors office. For this reason, he belongs to the class of
persons disqualified for appointment to the post of special counsel.

That to be eligible as special counsel to aid a fiscal the appointee must be either an
employee or officer in the Department of Justice is so manifest from a bare reading of
section 1686 of the Revised Administrative Code as to preclude construction. And the
limitation of the range of choice in the appointment or designation is not without
reason.

The obvious reason is to have appointed only lawyers over whom the Secretary of
Justice can exercise exclusive and absolute power of supervision. An appointee from a
branch of the government outside the Department of Justice would owe obedience to,
and be subject to orders by, mutually independent superiors having, possibly,
antagonistic interests. Referring particularly to the case at hand for illustration,
Attorney Subido could be recalled or his time and attention be required elsewhere by
the Secretary of Interior or the City Mayor while he was discharging his duties as
public prosecutor, and the Secretary of Justice would be helpless to stop such recall or
interference. An eventuality or state of affairs so undesirable, not to say detrimental to
the public service and specially the administration of justice, the Legislature wisely
intended to avoid.

The application of the 1951 Villa ruling is not confined to instances where
the person who filed the information is disqualified from being a special
prosecutor under Section 1686 of the Revised Administrative Code, as
amended, but has been extended to various cases where the information was
filed by an unauthorized officer as in the case at bar. In Cruz, Jr. v.
Sandiganbayan, et al., the Court held that it is a fundamental principle that
[46]

when on its face the information is null and void for lack of authority to file the
same, it cannot be cured nor resurrected by amendment. In that case, the
Presidential Commission on Good Government (PCGG) conducted an
investigation and filed an information with the Sandiganbayan against
petitioner Roman Cruz, Jr. charging him with graft and corruption. The
petitioner sought to quash the information on the ground that the crime
charged did not constitute a Marcos crony related crime over which the PCGG
had authority to investigate and file an information. The Court found that the
crime alleged in the information was not among those which PCGG was
authorized to investigate under Executive Orders No. 1 and 14 of then
President Corazon Aquino and ruled that the information was null and void. Of
similar import is Romualdez v. Sandiganbayan, et al. where we ruled that
[47]

the information having been filed by an unauthorized party (the PCGG), the
information was fatally flawed. We noted that this defect is not a mere
remediable defect of form, but a defect that could not be cured.

In Cudia v. Court of Appeals, et al., we also reiterated the Villa

[48]

ruling. The accused in that case was apprehended in Mabalacat, Pampanga

for illegal possession of firearms and was brought to Angeles City where the
headquarters of the arresting officers was located. The City Prosecutor of
Angeles City filed an information in the Regional Trial Court of Angeles City.
We invalidated the information filed by the City Prosecutor because he had no
territorial jurisdiction, as the offense was committed in Mabalacat, Pampanga
and his territorial jurisdiction was only in Angeles City. We held that an
information, when required by law to be filed by a public prosecuting officer,
cannot be filed by another. Otherwise, the court does not acquire jurisdiction.
[49]

It is a valid information signed by a competent officer which, among other

[50]

requisites, confers jurisdiction on the court over the person of the accused and
the subject matter thereof. The accuseds plea to an information may be a
waiver of all formal objections to the said information but not when there is
want of jurisdiction. Questions relating to lack of jurisdiction may be raised at
any stage of the proceeding. An infirmity in the information, such as lack of
authority of the officer signing it, cannot be cured by silence, acquiescence, or
even by express consent. [51]

Despite modifications of the provisions on unauthorized filing of

information contained in the 1940 Rules of Criminal Procedure under
which Villa was decided, the 1951 Villa ruling continues to be the prevailing
case law on the matter. [52]

The 1940 Rules of Court provided in Rule 113, Section 10 that, if the
defendant fails to move to quash the complaint or information before he
pleads thereto, he shall be taken to have waived all objections which are
grounds for a motion to quash except (1) when the complaint or information
does not charge an offense or (2) the court is without jurisdiction of the
same. (emphasis ours) Among the enumerated grounds for a motion to quash
under Section 2 of the same Rule was (t)hat the fiscal has no authority to file
the information. With only the above two exceptions provided by the 1940
Rules, the Court nevertheless made the Villa ruling that if the filing officer
lacks authority to file the information, jurisdiction is not conferred on the court
and this infirmity cannot be cured by silence or waiver, acquiescence, or even
by express consent.

The 1940 Rules of Court was amended in 1964. With only minimal
changes introduced, the 1964 Rules of Court contained provisions on
unauthorized filing of information similar to the above provisions of the 1940
Rules. [53]

Then came the 1985 Rules of Criminal Procedure. Lack of authority of the
officer who filed the information was also a ground for a motion to quash
under these rules. The 1985 Rules also provided for waiver of the grounds for
a motion to quash under Rule 117, Section 8, but enumerated the following
exceptions to the waiver: (a) the facts charged do not constitute an offense;
(b) the court trying the case has no jurisdiction over the offense charged or the
person of the accused; (c) the criminal action or liability has been
extinguished; and (d) the accused has been previously convicted or in
jeopardy of being convicted, or acquitted of the offense charged. Apparently,
the want of jurisdiction under the 1985 Rules refers to jurisdiction over the
offense and the person, and not over the case as in Villa where the court did
not acquire jurisdiction over the case for lack of authority of the officer who
filed the information. Still, despite the enumeration, the Court continued to
apply the Villa ruling as shown in the afore-cited Cruz and Cudia cases.

The 1985 Rules was amended in 2000. The 2000 Revised Rules of
Criminal Procedure also provide for lack of authority of the filing officer as
among the grounds for a motion to quash and the waiver of these grounds.
Similar to the 1985 Rules, the Revised Rules enumerate the exceptions from
the waiver, namely: (a) that the facts charged do not constitute an offense; (b)
that the court trying the case has no jurisdiction over the offense charged; (c)
that the criminal action or liability has been extinguished; and (d) that the
accused has been previously convicted or acquitted of the offense charged, or
the case against him was dismissed or otherwise terminated without his
express consent. Under the regime of the 2000 Revised Rules, we reiterated
the Villa ruling in the above-cited Romualdez case. With the enumeration of
the four exceptions, which was almost a replica of the enumeration in the
1985 Rules, the 2000 Rules did not intend to abandon Villa. The Villa
ruling subsisted alongside the enumerated exceptions under the 1985 Rules,
and it remains to do so under the enumerated exceptions under the 2000
Rules. Neither the Rationale of the 2000 Revised Rules of Criminal Procedure
nor the Minutes of the Meeting of the Committee on the Revision of the Rules
of Court evinces any intent to abandon the doctrine enunciated in Villa.

In sum, we hold that, in the absence of a directive from the Secretary of

Justice designating State Prosecutor Tolentino as Special Prosecutor for SSS
cases or a prior written approval of the information by the provincial or city
prosecutor, the information in Criminal Case No. RTC 2001-0597 was filed by
an officer without authority to file the same. As this infirmity in the information
constitutes a jurisdictional defect that cannot be cured, the respondent judge
did not err in dismissing the case for lack of jurisdiction.

WHEREFORE, premises considered, the petition is DENIED. The

respondent courts orders dated February 26, 2002 and April 3, 2002 are
AFFIRMED. Criminal Case No. RTC 2001-0597 is DISMISSED without
prejudice to the filing of a new information by an authorized officer.

SO ORDERED.

RODNEY HEGERTY, petitioner, vs. THE HON. COURT OF

APPEALS and ALLAN NASH, respondents.

DECISION

YNARES-SANTIAGO, J.:

This petition seeks to annul and set aside the decision of the Court of
Appeals in CA-G.R. SP No. 66680 which reversed the resolution of the
[1] [2]

Office of the City Prosecutor of Manila dismissing the complaint for estafa filed
against petitioner Rodney Hegerty, as well as the resolution of the Secretary
of Justice dismissing respondent Allan Nashs appeal and denying his motion
for reconsideration for having been filed out of time.

Respondent Allan Nash alleged that petitioner Rodney Hegerty, together

with the deceased Don Judevine and James Studenski, invited him to invest
in a foreign exchange scheme with a guaranteed return of 10.45% per annum
on the money invested. From July 1992 to November 28, 1997, Nash invested
a total of US$236,353.34.

Sometime in December 1997, Hegerty informed Nash that all his

investments had been lost after he lent a portion of the investment to
Swagman Hotels and Travel, Inc., of which he was a stockholder. Initially,
Hegerty offered to return to Nash half of his total investment, but later on
withdrew the offer.
 After his demands were ignored, Nash filed a complaint-affidavit against
Hegerty before the City Prosecutor of Manila for estafa under Article 315 (1)
(b) of the Revised Penal Code.

For his part, Hegerty denied making any invitation to Nash to invest his
money in any foreign exchange scheme. Neither did he divert any portion of
such investment to the Swagman Group of Companies. He, however,
admitted his acquaintance with Judevine and Studenski but denied that they
were his business partners. He likewise disclaimed any knowledge of or
participation in any of the receipts and cash vouchers presented by Nash
supposedly as proofs of his investments.

The City Prosecutor dismissed the complaint for estafa against Hegerty for
insufficiency of evidence. Upon receipt of a copy of the said resolution on
June 16, 1999, counsel of Nash filed a motion for reconsideration. On May 8,
2000, Nash himself received a copy of the resolution denying the motion for
reconsideration.

On May 19, 2000, Nash filed an appeal with the Department of Justice
(DOJ), however, the same was dismissed for having been filed out of
[3]

time. He filed a motion for reconsideration, which was denied again for having
been filed beyond the reglementary period of ten (10) days.

Undaunted, Nash filed with the Court of Appeals a petition

for certiorari and mandamus under Rule 65 of the 1997 Rules of Civil
Procedure, contending that the DOJ acted in grave abuse of discretion
amounting to lack of or in excess of jurisdiction when it dismissed his appeal
and denied his motion for reconsideration.

On June 28, 2002, the Court of Appeals rendered the assailed decision,
the dispositive portion of which reads:

WHEREFORE, premises considered, the PETITION is GRANTED. The undated

resolution and 22 August 2001 resolution are REVERSED and SET ASIDE. The
public respondent is directed to prosecute respondent Hegerty for the crime of estafa
under Article 315 (1) (b) of the Revised Penal Code.
SO ORDERED. [4]

Hegerty is now before us on this petition for review, raising the following
issues:

I. DOES THE RESPONDENT COURT OF APPEALS HAVE JURISDICTION OVER A

CASE WHICH STARTED AT THE OFFICE OF THE PROSECUTOR OF MANILA
THEN APPEALED TO THE DEPARTMENT OF JUSTICE BUT WHICH APPEAL
WAS FILED WAY OUT OF TIME?

II. MAY THE RESPONDENT COURT OF APPEALS ACTING WITHOUT

JURISDICTION ORDER THE PROSECUTION OF A CRIMINAL CASE?[5]

Hegerty contends that since Nashs appeal with the DOJ and his motion for
reconsideration were both filed out of time, the prosecutors resolution had
become final and executory.Consequently, the DOJ and the Court of Appeals
never acquired jurisdiction over the case. Corollarily, the Court of Appeals
does not have the authority to order the filing of a case in the absence of
grave abuse of discretion on the part of the prosecutor.

We agree. The rule is settled that our duty in an appropriate case is

confined to determining whether the executive or judicial determination, as the
case may be, of probable cause was done without or in excess of jurisdiction
or with grave abuse of discretion. Thus, although it is entirely possible that the
investigating fiscal may erroneously exercise the discretion lodged in him by
law, this does not render his act amenable to correction and annulment by the
extraordinary remedy of certiorari, absent any showing of grave abuse of
discretion amounting to excess of jurisdiction. [6]

The pivotal question, therefore, in this case is: whether the City Prosecutor
acted with grave abuse of discretion in dismissing the criminal complaint for
estafa against Hegerty.

In D.M. Consunji, Inc. v. Esguerra, we defined grave abuse of discretion

[7]

in this wise:

By grave abuse of discretion is meant, such capricious and whimsical exercise of

judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be
grave as where the power is exercised in an arbitrary or despotic manner by reason of
passion or personal hostility and must be so patent and gross as to amount to an
evasion of positive duty or to a virtual refusal to perform the duty enjoined by or to
act at all in contemplation of law.

The City Prosecutor had the duty to determine whether there was a prima
facie case for estafa based on sufficient evidence that would warrant the filing
of an information. The elements of estafa through misappropriation as defined
and penalized under Article 315 (1) (b) are:

(1) That money, goods, or other personal property be received by the offender in trust
or on commission, or for administration, or under any other obligation involving the
duty to make delivery of, or to return, the same;

(2) That there be misappropriation or conversion of such money or property by the

offender, or denial on his part of such receipt;

(3) That such misappropriation or conversion or denial is to the prejudice of another;

and

(4) That there is a demand made by the offended party to the offender. [8]

The City Prosecutor dismissed the complaint for estafa based on the
following findings:

Recouping everything that has been maintained and asserted by the parties, there is
really reason to believe that the complainant had in fact made some investments with
the late DON JUDEVINE who acknowledged receipts thereof and bound himself
thereby alone. There is, however, an utter and absolute absence of a showing that the
respondent partook of the said investments nor had any business dealing with either
the late DON JUDEVINE or the complainant. Complainant also tried in vain to show
some form of a partnership between the respondent and the two deceased individuals
but the former failed to adduce any tangible evidence to support the same except his
general declarations which remain bare as they were. [9]

A public prosecutor, by the nature of his office, is under no compulsion to

file a criminal information where no clear legal justification has been shown,
and no sufficient evidence of guilt nor prima facie case has been presented by
the petitioner.[10]
 We need only to stress that the determination of probable cause during a
preliminary investigation or reinvestigation is recognized as an executive
function exclusively of the prosecutor.An investigating prosecutor is under no
obligation to file a criminal action where he is not convinced that he has the
quantum of evidence at hand to support the averments. Prosecuting officers
have equally the duty not to prosecute when after investigation or
reinvestigation they are convinced that the evidence adduced was not
sufficient to establish a prima facie case.Thus, the determination of the
persons to be prosecuted rests primarily with the prosecutor who is vested
with discretion in the discharge of this function. [11]

In Quiso v. Sandiganbayan, we pointed out that:

[12]

x x x [A] fiscal by the nature of his office, is under no compulsion to file a particular
criminal information where he is not convinced that he has evidence to support the
allegations thereof. Although this power and prerogative x x x is not absolute and
subject to judicial review, it would be embarrassing for the prosecuting attorney to be
compelled to prosecute a case when he is in no position to do so, because in his
opinion he does not have the necessary evidence to secure a conviction, or he is not
convinced of the merits of the case.

The remedy of mandamus does not lie to compel the City Prosecutor to
file an Information against petitioner. There being no showing of grave abuse
of discretion which will warrant the reversal of the dismissal of the complaint
against petitioner, there is also no ground to issue a writ of mandamus. In the [13]

case at bar, we find no evidence to prove that the City Prosecutor abused,
much less gravely abused, his discretion when he dismissed the complaint for
estafa filed against Hegerty.

Moreover, the appeal filed by respondent with the Department of Justice

was out of time. Section 2 of DOJ Order No. 223 dated June 30, 1993, which
was then in force, provides:

When to appeal. The appeal must be filed within a period of fifteen (15) days from
receipt of the questioned resolution by the party or his counsel. The period shall be
interrupted only by the filing of a motion for reconsideration within ten (10) days
from receipt of the resolution and shall continue to run from the time the resolution
denying the motion shall have been received by the movant or his counsel.

In the case at bar, respondents counsel received a copy of the resolution

of the City Prosecutor dismissing the complaint on June 16, 1999. The tenth
day, June 26, fell on a Saturday; thus, the motion for reconsideration was filed
on Monday, June 28, 1999. On May 8, 2000, respondent received the
resolution denying his motion for reconsideration. He filed an appeal with the
Department of Justice on May 19, 2000.

Under the above-quoted rule, respondents fifteen-day period to appeal

was interrupted by the filing of the motion for reconsideration on the tenth
day. The said period continued to run again when he received the resolution
denying his motion for reconsideration, but only for the remaining period of
five days. Therefore, respondent only had until May 15, 2000 May 13, 2000
was a Saturday within which to appeal. His appeal filed on May 19, 2000 was
clearly out of time.

Respondent Nash, however, argues that the service to him of the

resolution of the City Prosecutor denying his motion for reconsideration was
invalid inasmuch as he was represented by counsel. There is no generally
accepted practice in the service of orders, resolutions, and processes, which
allows service upon either the litigant or his lawyer. While as a rule, notice or
service made upon a party who is represented by counsel is a nullity, this
admits of exceptions, as when the court or tribunal orders service upon the
party or when the technical defect is waived. [14]

The above-quoted DOJ Rule expressly provides that service of resolutions

may be made to the party or his counsel. In this connection, we had occasion
to rule:
[15]

A plain reading of Section 2 of DOJ Order No. 223 clearly shows that in preliminary
investigations, service can be made upon the party himself or through his counsel. It
must be assumed that when the Justice Department crafted the said section, it was
done with knowledge of the pertinent rule in the Rules of Court and of jurisprudence
interpreting it. The DOJ could have just adopted the rule on service provided for in the
Rules of Court, but did not. Instead, it opted to word Section 2 of DOJ Order No. 223
in such a way as to leave no doubt that in preliminary investigations, service of
resolutions of public prosecutors could be made upon either the party or his counsel.

WHEREFORE, in view of the foregoing, the petition is GRANTED. The

decision of the Court of Appeals in CA G.R. SP No. 66680 is REVERSED and
SET ASIDE. The Resolution of the City Prosecutor of Manila, which dismissed
the complaint against petitioner for estafa, and the Resolution of the
Department of Justice which denied respondents appeal, are
REINSTATED. No costs.

SO ORDERED.