FOR PRESUMPTION Cases:

G.R. No. 187401, September 17, 2014

MA. ROSARIO P. CAMPOS, Petitioner, v. PEOPLE OF THE PHILIPPINES AND FIRST WOMENS
CREDIT CORPORATION, Respondents.
This resolves the petition for review on certiorari filed by petitioner Ma. Rosario P. Campos (Campos) to assail the
Decision1 dated July 21, 2008 and Resolution2 dated February 16, 2009 of the Court of Appeals (CA) in CA-G.R.
CR No. 31468, which affirmed the conviction of Campos for fourteen (14) counts of violation of Batas Pambansa
Bilang 22 (B.P. 22), otherwise known as The Bouncing Checks Law.

On March 17, 1995, Campos obtained a loan, payable on installments, from respondent First Womens Credit
Corporation (FWCC) in the amount of P50,000.00. She issued several postdated checks in favor of FWCC to cover
the agreed installment payments.3 Fourteen of these checks drawn against her Current Account No. 6005-05449-92
with BPI Family Bank-Head Office, however, were dishonored when presented for payment,
particularly:chanRoblesvirtualLawlibrary
Check No. Date Amount
138609 August 15, 1995 P3,333.33
138610 August 30, 1995 P3,333.33
138611 September 15, 1995 P3,333.33
138612 September 30, 1995 P3,333.33
138613 October 15, 1995 P3,333.33
138614 October 30, 1995 P3,333.33
138615 November 15, 1995 P3,333.33
138616 November 30, 1995 P3,333.33
138617 December 15, 1995 P3,333.33
138618 December 31, 1995 P3,333.33
138619 January 15, 1996 P3,333.33
138620 January 31, 1996 P3,333.33
138621 February 15, 1996 P3,333.33
138622 February 28, 1996 P46,666.62

The checks were declared by the drawee bank to be drawn against a closed account. 4cralawlawlibrary

After Campos failed to satisfy her outstanding obligation with FWCC despite demand, she was charged before the
Metropolitan Trial Court (MeTC) of Pasay City, Branch 48, with violations of B.P. 22. Campos was tried in
absentia, as she failed to attend court proceedings after being arraigned. 5cralawlawlibrary

On December 7, 1999, the MeTC rendered its decision with dispositive portion that
reads:chanRoblesvirtualLawlibrary
WHEREFORE, all the foregoing considered, the accused is hereby CONVICTED of fourteen (14) counts of
violations of BATAS PAMBANSA BLG. 22. She is hereby sentenced to suffer the penalty of six (6) months
imprisonment for each violation and to indemnify the complainant the sum of P46,666.62 representing the total
value of the checks, plus legal interest from date of default until full payment.

With costs.SO ORDERED.6chanrobleslaw

Feeling aggrieved, Campos appealed to the Regional Trial Court (RTC). On July 30, 2007, the RTC of Pasay City,
Branch 108 rendered its decision upholding Campos conviction. A motion for reconsideration filed by Campos was
denied for lack of merit.7cralawlawlibrary

Unyielding, Campos appealed the RTC decision to the CA, which rendered on July 21, 2008 its decision 8affirming
the ruling of the RTC. Campos moved to reconsider, but her motion was denied via a Resolution9dated February 16,
2009. Hence, this petition for review on certiorari which cites the following issues:chanRoblesvirtualLawlibrary
1. WHETHER OR NOT A DEMAND LETTER THAT WAS SENT THROUGH REGISTERED MAIL IS
SUFFICIENT TO SATISFY THE REQUIREMENTS OF [B.P. 22] AS TO KNOWLEDGE OF THE FACT OF THE
DISHONOR OF THE SUBJECT CHECKS.

2. WHETHER OR NOT [CAMPOS] WANT OF INFORMATION OF THE FACT OF THE CHECKS

DISHONOR AND HER SUBSEQUENT ARRANGEMENTS FOR THEIR PAYMENT [ARE] TANTAMOUNT TO
GOOD FAITH SO AS TO PERSUADE THIS HONORABLE SUPREME COURT TO EXERCISE ITS EQUITY
POWERS AND TO LEND SUCCOR TO [CAMPOS] CASE.10chanrobleslaw

Campos argues that the crimes element requiring her knowledge at the time of the checks issuance that she did not
have sufficient funds with the drawee bank for the payment of the check in full upon presentment was not
established by the prosecution. She denies having received a notice of dishonor from FWCC. Insisting on an
acquittal, Campos discredits the MeTCs reliance on a supposed notice of dishonor that was sent to her by FWCC
through registered mail. She also invokes good faith as she allegedly made arrangements with FWCC for the
payment of her obligation after the subject checks were dishonored.

The petition lacks merit.

To be liable for violation of B.P. 22, the following essential elements must be present: (1) the making, drawing, and
issuance of any check to apply for account or for value; (2) the knowledge of the maker, drawer, or issuer that at the
time of issue he does not have sufficient funds in or credit with the drawee bank for the payment of the check in full
upon its presentment; and (3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or
credit or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop
payment.11cralawlawlibrary

The presence of the first and third elements is undisputed. An issue being advanced by Campos through the present
petition concerns her alleged failure to receive a written demand letter from FWCC, the entity in whose favor the
dishonored checks were issued. In a line of cases, the Court has emphasized the importance of proof of receipt of
such notice of dishonor,12 although not as an element of the offense, but as a means to establish that the issuer of a
check was aware of insufficiency of funds when he issued the check and the bank dishonored it, in relation to the
second element of the offense and Section 2 of B.P. 22. Considering that the second element involves a state of mind
which is difficult to establish, Section 2 of B.P. 22 creates a presumption of knowledge of insufficiency of funds, 13 as
it reads:chanRoblesvirtualLawlibrary
Sec. 2. Evidence of knowledge of insufficient funds. The making, drawing, and issuance of a check payment of
which is refused by the drawee because of insufficient funds in or credit with such bank, when presented within
ninety days from the date of the check, shall be prima facie evidence of knowledge of such insufficiency of funds or
credit unless such maker or drawer pays the holder thereof the amount due thereon, or makes arrangements for
payment in full by the drawee of such check within five (5) banking days after receiving notice that such check has
not been paid by the drawee.

In the instant case, both the RTC and the CA affirmed the MeTCs finding that the required notice of dishonor from
FWCC was received by Campos. Campos, nonetheless, still maintains that her personal receipt of the notice was not
sufficiently established, considering that only a written copy of the letter and the registry return receipt covering it
were presented by the prosecution.

The Court has in truth repeatedly held that the mere presentation of registry return receipts that cover registered mail
was not sufficient to establish that written notices of dishonor had been sent to or served on issuers of checks. The
authentication by affidavit of the mailers was necessary in order for service by registered mail to be regarded as
clear proof of the giving of notices of dishonor and to predicate the existence of the second element of the
offense.14cralawlawlibrary

In still finding no merit in the present petition, the Court, however, considers Campos defense that she exerted
efforts to reach an amicable settlement with her creditor after the checks which she issued were dishonored by the
drawee bank, BPI Family Bank. Campos categorically declared in her petition that, [she] has in her favor evidence
to show that she was in good faith and indeed made arrangements for the payment of her obligations
subsequently after the dishonor of the checks.15 Clearly, this statement was a confirmation that she actually
received the required notice of dishonor from FWCC. The evidence referred to in her statement were receipts 16 dated
January 13, 1996, February 29, 1996, April 22, 1998 and May 26, 1998 issued by FWCC to Campos for payments in
various amounts ranging from P2,500.00 to P15,700.00. Campos would not have entered into the alleged
arrangements beginning January 1996 until May 1998 if she had not received a notice of dishonor from her creditor,
and had no knowledge of the insufficiency of her funds with the bank and the dishonor of her checks.

Campos could have avoided prosecution by paying the amounts due on the checks or making arrangements for
payment in full within five (5) days after receiving notice. Unfortunately for Campos, these circumstances were not
established in the instant case. She failed to sufficiently disclose the terms of her alleged arrangement with FWCC,
and to establish that the same had been fully complied with so as to completely satisfy the amounts covered by the
subject checks. Moreover, documents to prove such fact should have been presented before the MeTC during the
trial, yet Campos opted to be tried in absentia, and thus waived her right to present evidence. While Campos blamed
her former counsel for alleged negligence that led to her failure to be present during the trial,17 it is settled that the
negligence of counsel binds his or her client. Given the circumstances, the Court finds no cogent reason to reverse
the ruling of the CA which affirmed the conviction of Campos.

WHEREFORE, the petition is DENIED. The Decision dated July 21, 2008 and Resolution dated February 16,
2009 of the Court of Appeals in CA-G.R. CR No. 31468 are AFFIRMED.

G.R. No. 152392. May 26, 2005

EXPERTRAVEL & TOURS, INC., petitioner, vs. COURT OF APPEALS and KOREAN
AIRLINES, respondents.

Before us is a petition for review on certiorari of the Decision[1] of the Court of Appeals (CA) in CA-G.R. SP
No. 61000 dismissing the petition for certiorari and mandamusfiled by Expertravel and Tours, Inc. (ETI).

Korean Airlines (KAL) is a corporation established and registered in the Republic of South Korea and licensed to do
business in the Philippines. Its general manager in the Philippines is Suk Kyoo Kim, while its appointed counsel was
Atty. Mario Aguinaldo and his law firm.
On September 6, 1999, KAL, through Atty. Aguinaldo, filed a Complaint [2] against ETI with the Regional Trial
Court (RTC) of Manila, for the collection of the principal amount of P260,150.00, plus attorneys fees and exemplary
damages. The verification and certification against forum shopping was signed by Atty. Aguinaldo, who indicated
therein that he was the resident agent and legal counsel of KAL and had caused the preparation of the complaint.
 ETI filed a motion to dismiss the complaint on the ground that Atty. Aguinaldo was not authorized to execute
the verification and certificate of non-forum shopping as required by Section 5, Rule 7 of the Rules of Court. KAL
opposed the motion, contending that Atty. Aguinaldo was its resident agent and was registered as such with the
Securities and Exchange Commission (SEC) as required by the Corporation Code of the Philippines. It was further
alleged that Atty. Aguinaldo was also the corporate secretary of KAL. Appended to the said opposition was the
identification card of Atty. Aguinaldo, showing that he was the lawyer of KAL.
During the hearing of January 28, 2000, Atty. Aguinaldo claimed that he had been authorized to file the
complaint through a resolution of the KAL Board of Directors approved during a special meeting held on June 25,
1999. Upon his motion, KAL was given a period of 10 days within which to submit a copy of the said resolution.
The trial court granted the motion. Atty. Aguinaldo subsequently filed other similar motions, which the trial court
granted.
Finally, KAL submitted on March 6, 2000 an Affidavit [3] of even date, executed by its general manager Suk
Kyoo Kim, alleging that the board of directors conducted a special teleconference on June 25, 1999, which he and
Atty. Aguinaldo attended. It was also averred that in that same teleconference, the board of directors approved a
resolution authorizing Atty. Aguinaldo to execute the certificate of non-forum shopping and to file the complaint.
Suk Kyoo Kim also alleged, however, that the corporation had no written copy of the aforesaid resolution.
On April 12, 2000, the trial court issued an Order [4] denying the motion to dismiss, giving credence to the
claims of Atty. Aguinaldo and Suk Kyoo Kim that the KAL Board of Directors indeed conducted a teleconference
on June 25, 1999, during which it approved a resolution as quoted in the submitted affidavit.
ETI filed a motion for the reconsideration of the Order, contending that it was inappropriate for the court to
take judicial notice of the said teleconference without any prior hearing. The trial court denied the motion in its
Order[5] dated August 8, 2000.
ETI then filed a petition for certiorari and mandamus, assailing the orders of the RTC. In its comment on the
petition, KAL appended a certificate signed by Atty. Aguinaldo dated January 10, 2000, worded as follows:
SECRETARYS/RESIDENT AGENTS CERTIFICATE
KNOW ALL MEN BY THESE PRESENTS:
I, Mario A. Aguinaldo, of legal age, Filipino, and duly elected and appointed Corporate Secretary and Resident
Agent of KOREAN AIRLINES, a foreign corporation duly organized and existing under and by virtue of the laws of
the Republic of Korea and also duly registered and authorized to do business in the Philippines, with office address
at Ground Floor, LPL Plaza Building, 124 Alfaro St., Salcedo Village, Makati City, HEREBY CERTIFY that during
a special meeting of the Board of Directors of the Corporation held on June 25, 1999 at which a quorum was
present, the said Board unanimously passed, voted upon and approved the following resolution which is now in full
force and effect, to wit:
RESOLVED, that Mario A. Aguinaldo and his law firm M.A. Aguinaldo & Associates or any of its lawyers are
hereby appointed and authorized to take with whatever legal action necessary to effect the collection of the unpaid
account of Expert Travel & Tours. They are hereby specifically authorized to prosecute, litigate, defend, sign and
execute any document or paper necessary to the filing and prosecution of said claim in Court, attend the Pre-Trial
Proceedings and enter into a compromise agreement relative to the above-mentioned claim.
IN WITNESS WHEREOF, I have hereunto affixed my signature this 10th day of January, 1999, in the City of
Manila, Philippines.
(Sgd.)
MARIO A. AGUINALDO
Resident Agent
SUBSCRIBED AND SWORN to before me this 10th day of January, 1999, Atty. Mario A. Aguinaldo exhibiting to
me his Community Tax Certificate No. 14914545, issued on January 7, 2000 at Manila, Philippines.
(Sgd.)
Doc. No. 119; ATTY. HENRY D. ADASA
Page No. 25; Notary Public
Book No. XXIV Until December 31, 2000
Series of 2000. PTR #889583/MLA 1/3/2000[6]
On December 18, 2001, the CA rendered judgment dismissing the petition, ruling that the verification and
certificate of non-forum shopping executed by Atty. Aguinaldo was sufficient compliance with the Rules of Court.
According to the appellate court, Atty. Aguinaldo had been duly authorized by the board resolution approved on
June 25, 1999, and was the resident agent of KAL. As such, the RTC could not be faulted for taking judicial notice
of the said teleconference of the KAL Board of Directors.
ETI filed a motion for reconsideration of the said decision, which the CA denied. Thus, ETI, now the
petitioner, comes to the Court by way of petition for review on certiorari and raises the following issue:

DID PUBLIC RESPONDENT COURT OF APPEALS DEPART FROM THE ACCEPTED AND USUAL COURSE
OF JUDICIAL PROCEEDINGS WHEN IT RENDERED ITS QUESTIONED DECISION AND WHEN IT
ISSUED ITS QUESTIONED RESOLUTION, ANNEXES A AND B OF THE INSTANT PETITION?[7]

The petitioner asserts that compliance with Section 5, Rule 7, of the Rules of Court can be determined only
from the contents of the complaint and not by documents or pleadings outside thereof. Hence, the trial court
committed grave abuse of discretion amounting to excess of jurisdiction, and the CA erred in considering the
affidavit of the respondents general manager, as well as the Secretarys/Resident Agents Certification and the
resolution of the board of directors contained therein, as proof of compliance with the requirements of Section 5,
Rule 7 of the Rules of Court. The petitioner also maintains that the RTC cannot take judicial notice of the said
teleconference without prior hearing, nor any motion therefor. The petitioner reiterates its submission that the
teleconference and the resolution adverted to by the respondent was a mere fabrication.
The respondent, for its part, avers that the issue of whether modern technology is used in the field of business
is a factual issue; hence, cannot be raised in a petition for review on certiorari under Rule 45 of the Rules of Court.
On the merits of the petition, it insists that Atty. Aguinaldo, as the resident agent and corporate secretary, is
authorized to sign and execute the certificate of non-forum shopping required by Section 5, Rule 7 of the Rules of
Court, on top of the board resolution approved during the teleconference of June 25, 1999. The respondent insists
that technological advances in this time and age are as commonplace as daybreak. Hence, the courts may take
judicial notice that the Philippine Long Distance Telephone Company, Inc. had provided a record of corporate
conferences and meetings through FiberNet using fiber-optic transmission technology, and that such technology
facilitates voice and image transmission with ease; this makes constant communication between a foreign-based
office and its Philippine-based branches faster and easier, allowing for cost-cutting in terms of travel concerns. It
points out that even the E-Commerce Law has recognized this modern technology. The respondent posits that the
courts are aware of this development in technology; hence, may take judicial notice thereof without need of
hearings. Even if such hearing is required, the requirement is nevertheless satisfied if a party is allowed to file
pleadings by way of comment or opposition thereto.
In its reply, the petitioner pointed out that there are no rulings on the matter of teleconferencing as a means of
conducting meetings of board of directors for purposes of passing a resolution; until and after teleconferencing is
recognized as a legitimate means of gathering a quorum of board of directors, such cannot be taken judicial notice of
by the court. It asserts that safeguards must first be set up to prevent any mischief on the public or to protect the
general public from any possible fraud. It further proposes possible amendments to the Corporation Code to give
recognition to such manner of board meetings to transact business for the corporation, or other related corporate
matters; until then, the petitioner asserts, teleconferencing cannot be the subject of judicial notice.
The petitioner further avers that the supposed holding of a special meeting on June 25, 1999 through
teleconferencing where Atty. Aguinaldo was supposedly given such an authority is a farce, considering that there
was no mention of where it was held, whether in this country or elsewhere. It insists that the Corporation Code
requires board resolutions of corporations to be submitted to the SEC. Even assuming that there was such a
teleconference, it would be against the provisions of the Corporation Code not to have any record thereof.
The petitioner insists that the teleconference and resolution adverted to by the respondent in its pleadings were
mere fabrications foisted by the
respondent and its counsel on the RTC, the CA and this Court.
The petition is meritorious.
Section 5, Rule 7 of the Rules of Court provides:

SEC. 5. Certification against forum shopping. The plaintiff or principal party shall certify under oath in the
complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and
simultaneously filed therewith: (a) that he has not theretofore commenced any action or filed any claim involving
the same issues in any court, tribunal or quasi-judicial agency and, to the best of his knowledge, no such other action
or claim is pending therein; (b) if there is such other pending action or claim, a complete statement of the present
status thereof; and (c) if he should thereafter learn that the same or similar action or claim has been filed or is
pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint or
initiatory pleading has been filed.

Failure to comply with the foregoing requirements shall not be curable by mere amendment of the complaint or
other initiatory pleading but shall be cause for the dismissal of the case without prejudice, unless otherwise
provided, upon motion and after hearing. The submission of a false certification or non-compliance with any of the
undertakings therein shall constitute indirect contempt of court, without prejudice to the corresponding
administrative and criminal actions. If the acts of the party or his counsel clearly constitute willful and deliberate
forum shopping, the same shall be ground for summary dismissal with prejudice and shall constitute direct
contempt, as well as a cause for administrative sanctions.

It is settled that the requirement to file a certificate of non-forum shopping is mandatory [8] and that the failure
to comply with this requirement cannot be excused. The certification is a peculiar and personal responsibility of the
party, an assurance given to the court or other tribunal that there are no other pending cases involving basically the
same parties, issues and causes of action. Hence, the certification must be accomplished by the party himself
because he has actual knowledge of whether or not he has initiated similar actions or proceedings in different courts
or tribunals. Even his counsel may be unaware of such facts. [9] Hence, the requisite certification executed by the
plaintiffs counsel will not suffice. [10]
In a case where the plaintiff is a private corporation, the certification may be signed, for and on behalf of the
said corporation, by a specifically authorized person, including its retained counsel, who has personal knowledge of
the facts required to be established by the documents. The reason was explained by the Court in National Steel
Corporation v. Court of Appeals,[11] as follows:

Unlike natural persons, corporations may perform physical actions only through properly delegated individuals;
namely, its officers and/or agents.

The corporation, such as the petitioner, has no powers except those expressly conferred on it by the Corporation
Code and those that are implied by or are incidental to its existence. In turn, a corporation exercises said powers
through its board of directors and/or its duly-authorized officers and agents. Physical acts, like the signing of
documents, can be performed only by natural persons duly-authorized for the purpose by corporate by-laws or by
specific act of the board of directors. All acts within the powers of a corporation may be performed by agents of its
selection; and except so far as limitations or restrictions which may be imposed by special charter, by-law, or
statutory provisions, the same general principles of law which govern the relation of agency for a natural person
govern the officer or agent of a corporation, of whatever status or rank, in respect to his power to act for the
corporation; and agents once appointed, or members acting in their stead, are subject to the same rules, liabilities and
incapacities as are agents of individuals and private persons.

For who else knows of the circumstances required in the Certificate but its own retained counsel. Its regular officers,
like its board chairman and president, may not even know the details required therein.

Indeed, the certificate of non-forum shopping may be incorporated in the complaint or appended thereto as an
integral part of the complaint. The rule is that compliance with the rule after the filing of the complaint, or the
dismissal of a complaint based on its non-compliance with the rule, is impermissible. However, in exceptional
circumstances, the court may allow subsequent compliance with the rule. [12] If the authority of a partys counsel to
execute a certificate of non-forum shopping is disputed by the adverse party, the former is required to show proof of
such authority or representation.
In this case, the petitioner, as the defendant in the RTC, assailed the authority of Atty. Aguinaldo to execute the
requisite verification and certificate of non-forum shopping as the resident agent and counsel of the respondent. It
was, thus, incumbent upon the respondent, as the plaintiff, to allege and establish that Atty. Aguinaldo had such
authority to execute the requisite verification and certification for and in its behalf. The respondent, however, failed
to do so.
The verification and certificate of non-forum shopping which was incorporated in the complaint and signed by
Atty. Aguinaldo reads:

I, Mario A. Aguinaldo of legal age, Filipino, with office address at Suite 210 Gedisco Centre, 1564 A. Mabini cor. P.
Gil Sts., Ermita, Manila, after having sworn to in accordance with law hereby deposes and say: THAT -

1. I am the Resident Agent and Legal Counsel of the plaintiff in the above entitled case and have caused the
preparation of the above complaint;

2. I have read the complaint and that all the allegations contained therein are true and correct based on the records on
files;

3. I hereby further certify that I have not commenced any other action or proceeding involving the same issues in the
Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency. If I
subsequently learned that a similar action or proceeding has been filed or is pending before the Supreme Court, the
Court of Appeals, or different divisions thereof, or any tribunal or agency, I will notify the court, tribunal or agency
within five (5) days from such notice/knowledge.

Series of 1999. PTR No. 320501 Mla. 1/4/99[13]

(Sgd.)
MARIO A. AGUINALDO
Affiant
CITY OF MANILA
SUBSCRIBED AND SWORN TO before me this 30th day of August, 1999, affiant exhibiting to me his Community
Tax Certificate No. 00671047 issued on January 7, 1999 at Manila, Philippines.
(Sgd.)
Doc. No. 1005; ATTY. HENRY D. ADASA
Page No. 198; Notary Public
Book No. XXI Until December 31, 2000

As gleaned from the aforequoted certification, there was no allegation that Atty. Aguinaldo had been authorized
to execute the certificate of non-forum shopping by the respondents Board of Directors; moreover, no such board
resolution was appended thereto or incorporated therein.
While Atty. Aguinaldo is the resident agent of the respondent in the Philippines, this does not mean that he is
authorized to execute the requisite certification against forum shopping. Under Section 127, in relation to Section
128 of the Corporation Code, the authority of the resident agent of a foreign corporation with license to do business
in the Philippines is to receive, for and in behalf of the foreign corporation, services and other legal processes in all
actions and other legal proceedings against such corporation, thus:

SEC. 127. Who may be a resident agent. A resident agent may either be an individual residing in the Philippines or a
domestic corporation lawfully transacting business in the Philippines: Provided, That in the case of an individual, he
must be of good moral character and of sound financial standing.

SEC. 128. Resident agent; service of process. The Securities and Exchange Commission shall require as a condition
precedent to the issuance of the license to transact business in the Philippines by any foreign corporation that such
corporation file with the Securities and Exchange Commission a written power of attorney designating some persons
who must be a resident of the Philippines, on whom any summons and other legal processes may be served in all
actions or other legal proceedings against such corporation, and consenting that service upon such resident agent
shall be admitted and held as valid as if served upon the duly-authorized officers of the foreign corporation as its
home office.[14]

Under the law, Atty. Aguinaldo was not specifically authorized to execute a certificate of non-forum shopping
as required by Section 5, Rule 7 of the Rules of Court. This is because while a resident agent may be aware of
actions filed against his principal (a foreign corporation doing business in the Philippines), such resident may not be
aware of actions initiated by its principal, whether in the Philippines against a domestic corporation or private
individual, or in the country where such corporation was organized and registered, against a Philippine registered
corporation or a Filipino citizen.
The respondent knew that its counsel, Atty. Aguinaldo, as its resident agent, was not specifically authorized to
execute the said certification. It attempted to show its compliance with the rule subsequent to the filing of its
complaint by submitting, on March 6, 2000, a resolution purporting to have been approved by its Board of Directors
during a teleconference held on June 25, 1999, allegedly with Atty. Aguinaldo and Suk Kyoo Kim in attendance.
However, such attempt of the respondent casts veritable doubt not only on its claim that such a teleconference was
held, but also on the approval by the Board of Directors of the resolution authorizing Atty. Aguinaldo to execute the
certificate of non-forum shopping.
In its April 12, 2000 Order, the RTC took judicial notice that because of the onset of modern technology,
persons in one location may confer with other persons in other places, and, based on the said premise, concluded
that Suk Kyoo Kim and Atty. Aguinaldo had a teleconference with the respondents Board of Directors in South
Korea on June 25, 1999. The CA, likewise, gave credence to the respondents claim that such a teleconference took
place, as contained in the affidavit of Suk Kyoo Kim, as well as Atty. Aguinaldos certification.
Generally speaking, matters of judicial notice have three material requisites: (1) the matter must be one of
common and general knowledge; (2) it must be well and authoritatively settled and not doubtful or uncertain; and
(3) it must be known to be within the limits of the jurisdiction of the court. The principal guide in determining what
facts may be assumed to be judicially known is that of notoriety. Hence, it can be said that judicial notice is limited
to facts evidenced by public records and facts of general notoriety. [15] Moreover, a judicially noticed fact must be one
not subject to a reasonable dispute in that it is either: (1) generally known within the territorial jurisdiction of the
trial court; or (2) capable of accurate and ready determination by resorting to sources whose accuracy cannot
reasonably be questionable.[16]
Things of common knowledge, of which courts take judicial matters coming to the knowledge of men
generally in the course of the ordinary experiences of life, or they may be matters which are generally accepted by
mankind as true and are capable of ready and unquestioned demonstration. Thus, facts which are universally known,
and which may be found in encyclopedias, dictionaries or other publications, are judicially noticed, provided, they
are of such universal notoriety and so generally understood that they may be regarded as forming part of the
common knowledge of every person. As the common knowledge of man ranges far and wide, a wide variety of
particular facts have been judicially noticed as being matters of common knowledge. But a court cannot take
judicial notice of any fact which, in part, is dependent on the existence or non-existence of a fact of which the court
has no constructive knowledge.[17]
In this age of modern technology, the courts may take judicial notice that business transactions may be made
by individuals through teleconferencing. Teleconferencing is interactive group communication (three or more people
in two or more locations) through an electronic medium. In general terms, teleconferencing can bring people
together under one roof even though they are separated by hundreds of miles. [18] This type of group communication
may be used in a number of ways, and have three basic types: (1) video conferencing - television-like
communication augmented with sound; (2) computer conferencing - printed communication through keyboard
terminals, and (3) audio-conferencing-verbal communication via the telephone with optional capacity for telewriting
or telecopying.[19]
A teleconference represents a unique alternative to face-to-face (FTF) meetings. It was first introduced in the
1960s with American Telephone and Telegraphs Picturephone. At that time, however, no demand existed for the new
technology. Travel costs were reasonable and consumers were unwilling to pay the monthly service charge for using
the picturephone, which was regarded as more of a novelty than as an actual means for everyday communication.
[20]
In time, people found it advantageous to hold teleconferencing in the course of business and corporate
governance, because of the money saved, among other advantages include:
1. People (including outside guest speakers) who wouldnt normally attend a distant FTF meeting can participate.
2. Follow-up to earlier meetings can be done with relative ease and little expense.
3. Socializing is minimal compared to an FTF meeting; therefore, meetings are shorter and more oriented to the
primary purpose of the meeting.
4. Some routine meetings are more effective since one can audio-conference from any location equipped with a
telephone.
5. Communication between the home office and field staffs is maximized.
6. Severe climate and/or unreliable transportation may necessitate teleconferencing.
7. Participants are generally better prepared than for FTF meetings.
8. It is particularly satisfactory for simple problem-solving, information exchange, and procedural tasks.
9. Group members participate more equally in well-moderated teleconferences than an FTF meeting. [21]
On the other hand, other private corporations opt not to hold teleconferences because of the following
disadvantages:
1. Technical failures with equipment, including connections that arent made.
2. Unsatisfactory for complex interpersonal communication, such as negotiation or bargaining.
3. Impersonal, less easy to create an atmosphere of group rapport.
4. Lack of participant familiarity with the equipment, the medium itself, and meeting skills.
5. Acoustical problems within the teleconferencing rooms.
6. Difficulty in determining participant speaking order; frequently one person monopolizes the meeting.
7. Greater participant preparation time needed.
8. Informal, one-to-one, social interaction not possible.[22]
Indeed, teleconferencing can only facilitate the linking of people; it does not alter the complexity of group
communication. Although it may be easier to communicate via teleconferencing, it may also be easier to
miscommunicate. Teleconferencing cannot satisfy the individual needs of every type of meeting.[23]
In the Philippines, teleconferencing and videoconferencing of members of board of directors of private
corporations is a reality, in light of Republic Act No. 8792. The Securities and Exchange Commission issued SEC
Memorandum Circular No. 15, on November 30, 2001, providing the guidelines to be complied with related to such
conferences.[24] Thus, the Court agrees with the RTC that persons in the Philippines may have a teleconference with
a group of persons in South Korea relating to business transactions or corporate governance.
Even given the possibility that Atty. Aguinaldo and Suk Kyoo Kim participated in a teleconference along with
the respondents Board of Directors, the Court is not convinced that one was conducted; even if there had been one,
the Court is not inclined to believe that a board resolution was duly passed specifically authorizing Atty. Aguinaldo
to file the complaint and execute the required certification against forum shopping.
The records show that the petitioner filed a motion to dismiss the complaint on the ground that the respondent
failed to comply with Section 5, Rule 7 of the Rules of Court. The respondent opposed the motion on December 1,
1999, on its contention that Atty. Aguinaldo, its resident agent, was duly authorized to sue in its behalf. The
respondent, however, failed to establish its claim that Atty. Aguinaldo was its resident agent in the Philippines. Even
the identification card[25] of Atty. Aguinaldo which the respondent appended to its pleading merely showed that he is
the company lawyer of the respondents Manila Regional Office.
The respondent, through Atty. Aguinaldo, announced the holding of the teleconference only during the hearing
of January 28, 2000; Atty. Aguinaldo then prayed for ten days, or until February 8, 2000, within which to submit the
board resolution purportedly authorizing him to file the complaint and execute the required certification against
forum shopping. The court granted the motion.[26] The respondent, however, failed to comply, and instead prayed for
15 more days to submit the said resolution, contending that it was with its main office in Korea. The court granted
the motion per its Order[27] dated February 11, 2000. The respondent again prayed for an extension within which to
submit the said resolution, until March 6, 2000.[28] It was on the said date that the respondent submitted an affidavit
of its general manager Suk Kyoo Kim, stating, inter alia, that he and Atty. Aguinaldo attended the said
teleconference on June 25, 1999, where the Board of Directors supposedly approved the following resolution:

RESOLVED, that Mario A. Aguinaldo and his law firm M.A. Aguinaldo & Associates or any of its lawyers are
hereby appointed and authorized to take with whatever legal action necessary to effect the collection of the unpaid
account of Expert Travel & Tours. They are hereby specifically authorized to prosecute, litigate, defend, sign and
execute any document or paper necessary to the filing and prosecution of said claim in Court, attend the Pre-trial
Proceedings and enter into a compromise agreement relative to the above-mentioned claim.[29]

But then, in the same affidavit, Suk Kyoo Kim declared that the respondent do[es] not keep a written copy of
the aforesaid Resolution because no records of board resolutions approved during teleconferences were kept. This
belied the respondents earlier allegation in its February 10, 2000 motion for extension of time to submit the
questioned resolution that it was in the custody of its main office in Korea. The respondent gave the trial court the
impression that it needed time to secure a copy of the resolution kept in Korea, only to allege later ( via the affidavit
of Suk Kyoo Kim) that it had no such written copy. Moreover, Suk Kyoo Kim stated in his affidavit that the
resolution was embodied in the Secretarys/Resident Agents Certificate signed by Atty. Aguinaldo. However, no such
resolution was appended to the said certificate.
The respondents allegation that its board of directors conducted a teleconference on June 25, 1999 and
approved the said resolution (with Atty. Aguinaldo in attendance) is incredible, given the additional fact that no such
allegation was made in the complaint. If the resolution had indeed been approved on June 25, 1999, long before the
complaint was filed, the respondent should have incorporated it in its complaint, or at least appended a copy thereof.
The respondent failed to do so. It was only on January 28, 2000 that the respondent claimed, for the first time, that
there was such a meeting of the Board of Directors held on June 25, 1999; it even represented to the Court that a
copy of its resolution was with its main office in Korea, only to allege later that no written copy existed. It was only
on March 6, 2000 that the respondent alleged, for the first time, that the meeting of the Board of Directors where the
resolution was approved was held via teleconference.
Worse still, it appears that as early as January 10, 1999, Atty. Aguinaldo had signed a Secretarys/Resident
Agents Certificate alleging that the board of directors held a teleconference on June 25, 1999. No such certificate
was appended to the complaint, which was filed on September 6, 1999. More importantly, the respondent did not
explain why the said certificate was signed by Atty. Aguinaldo as early as January 9, 1999, and yet was notarized
one year later (on January 10, 2000); it also did not explain its failure to append the said certificate to the complaint,
as well as to its Compliance dated March 6, 2000. It was only on January 26, 2001 when the respondent filed its
comment in the CA that it submitted the Secretarys/Resident Agents Certificate [30] dated January 10, 2000.
The Court is, thus, more inclined to believe that the alleged teleconference on June 25, 1999 never took place,
and that the resolution allegedly approved by the respondents Board of Directors during the said teleconference was
a mere concoction purposefully foisted on the RTC, the CA and this Court, to avert the dismissal of its complaint
against the petitioner.
IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The Decision of the Court of Appeals
in CA-G.R. SP No. 61000 is REVERSED and SET ASIDE. The Regional Trial Court of Manila is hereby
ORDERED to dismiss, without prejudice, the complaint of the respondent.
 SO ORDERED.

G.R. No. 160889

DR. MILAGROS L. CANTRE vs DR. MILAGROS L. CANTRE
April 27, 2007

For review on certiorari are the Decision[1] dated October 3, 2002 and Resolution[2] dated November 19,
2003 of the Court of Appeals in CA-G.R. CV No. 58184, which affirmed with modification the Decision [3] dated
March 3, 1997 of the Regional Trial Court of Quezon City, Branch 98, in Civil Case No. Q-93-16562.

The facts, culled from the records, are as follows:

Petitioner Dr. Milagros L. Cantre is a specialist in Obstetrics and Gynecology at the Dr. Jesus Delgado
Memorial Hospital. She was the attending physician of respondent Nora S. Go, who was admitted at the said
hospital on April 19, 1992.
At 1:30 a.m. of April 20, 1992, Nora gave birth to her fourth child, a baby boy. However, at around 3:30
a.m., Nora suffered profuse bleeding inside her womb due to some parts of the placenta which were not completely
expelled from her womb after delivery. Consequently, Nora suffered hypovolemic shock, resulting in a drop in her
blood pressure to 40 over 0. Petitioner and the assisting resident physician performed various medical procedures to
stop the bleeding and to restore Noras blood pressure. Her blood pressure was frequently monitored with the use of a
sphygmomanometer. While petitioner was massaging Noras uterus for it to contract and stop bleeding, she ordered a
droplight to warm Nora and her baby.[4] Nora remained unconscious until she recovered.

While in the recovery room, her husband, respondent John David Z. Go noticed a fresh gaping wound two
and a half (2 ) by three and a half (3 ) inches in the inner portion of her left arm, close to the armpit. [5] He asked the
nurses what caused the injury. He was informed it was a burn. Forthwith, on April 22, 1992, John David filed a
request for investigation.[6] In response, Dr. Rainerio S. Abad, the medical director of the hospital, called petitioner
and the assisting resident physician to explain what happened. Petitioner said the blood pressure cuff caused the
injury.

On May 7, 1992, John David brought Nora to the National Bureau of Investigation for a physical
examination, which was conducted by medico-legal officer Dr. Floresto Arizala, Jr.[7] The medico-legal officer later
testified that Noras injury appeared to be a burn and that a droplight when placed near the skin for about 10 minutes
could cause such burn.[8] He dismissed the likelihood that the wound was caused by a blood pressure cuff as the scar
was not around the arm, but just on one side of the arm.[9]
On May 22, 1992, Noras injury was referred to a plastic surgeon at the Dr. Jesus Delgado Memorial
Hospital for skin grafting.[10] Her wound was covered with skin sourced from her abdomen, which consequently bore
a scar as well. About a year after, on April 30, 1993, scar revision had to be performed at the same hospital. [11] The
surgical operation left a healed linear scar in Noras left arm about three inches in length, the thickest portion rising
about one-fourth (1/4) of an inch from the surface of the skin. The costs of the skin grafting and the scar revision
were shouldered by the hospital.[12]

Unfortunately, Noras arm would never be the same. Aside from the unsightly mark, the pain in her left arm
remains. When sleeping, she has to cradle her wounded arm. Her movements now are also restricted. Her children
cannot play with the left side of her body as they might accidentally bump the injured arm, which aches at the
slightest touch.

Thus, on June 21, 1993, respondent spouses filed a complaint [13] for damages against petitioner, Dr. Abad,
and the hospital. Finding in favor of respondent spouses, the trial court decreed:

In view of the foregoing consideration, judgment is hereby rendered in favor of the

plaintiffs and against the defendants, directing the latters, (sic) jointly and severally
(a) to pay the sum of Five Hundred Thousand Pesos (P500,000.00) in moral
damages;
(b) to pay the sum of One Hundred Fifty Thousand Pesos (P150,000.00) exemplary
damages;
(c) to pay the sum of Eighty Thousand Pesos (P80,000.00) nominal damages;
(d) to pay Fifty Thousand Pesos (P50,000.00) for and as attorneys fees; and
(e) to pay Six Thousand Pesos (P6,000.00) litigation expenses.
SO ORDERED.[14]
Petitioner, Dr. Abad, and the hospital all appealed to the Court of Appeals, which affirmed with
modification the trial court decision, thus:

WHEREFORE, in view of all the foregoing, and finding no reversible error in the
appealed Decision dated March 3, 1997 of Branch 98 of the Regional Trial Court of Quezon City
in Civil Case No. Q-93-16562, the same is hereby AFFIRMED, with the following
MODIFICATIONS:
1. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay plaintiffs-
appellees John David Go and Nora S. Go the sum of P200,000.00 as moral
damages;
 2. Deleting the award [of] exemplary damages, attorneys fees and expenses of
litigation;
3. Dismissing the complaint with respect to defendants-appellants
Dr. Rainerio S. Abad and Delgado Clinic, Inc.;
4. Dismissing the counterclaims of defendants-appellants for lack of merit; and
5. Ordering defendant-appellant Dra. Milagros [L.] Cantre only to pay the costs.
SO ORDERED.[15]

Petitioners motion for reconsideration was denied by the Court of Appeals. Hence, the instant petition
assigning the following as errors and issues:
I.
WHETHER OR NOT, THE LOWER COURT, AND THE COURT OF APPEALS COMMITTED
GRAVE ABUSE OF THEIR DISCRETION WHEN, NOTWITHSTANDING THAT BOTH
PARTIES HAVE RESTED THEIR RESPECTIVE CASES, THE LOWER COURT ADMITTED
THE ADDITIONAL EXHIBITS FURTHER OFFERED BY RESPONDENTS NOT TESTIFIED
TO BY ANY WITNESS AND THIS DECISION OF THE LOWER COURT WAS UPHELD BY
THE COURT OF APPEALS LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION;
II.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS
DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE PRESENTED
BY THE PETITIONER, IT RULED THAT THE PETITIONER HAS NOT AMPLY SHOWED
THAT THE DROPLIGHT DID NOT TOUCH THE BODY OF MRS. NORA GO, AND THIS
DECISION OF THE LOWER COURT WAS UPHELD BY THE COURT OF APPEALS
LIKEWISE COMMITTING GRAVE ABUSE OF DISCRETION;
III.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF ITS
DISCRETION WHEN, CONTRARY TO PREPONDERANCE OF EVIDENCE PRESENTED
BY THE PETITIONER, IT RULED THAT PETITIONER DRA. CANTRE WAS NOT ABLE TO
AMPLY EXPLAIN HOW THE INJURY (BLISTERS) IN THE LEFT INNER ARM OF
RESPONDENT MRS. GO CAME ABOUT;
IV.
WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF ITS
DISCRETION WHEN IT MADE A RULING ON THE RESPONDENTS INJURY QUOTING
THE TESTIMONY OF SOMEONE WHO WAS NOT PRESENT AND HAS NOT SEEN THE
ORIGINAL, FRESH INJURY OF RESPONDENT MRS. NORA GO;
V.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ABUSING ITS DISCRETION
RULED THAT PETITIONER DRA. CANTRE SHOULD HAVE INTENDED TO INFLICT THE
INJURY TO SAVE THE LIFE OF RESPONDENT MRS. GO;
VI.
WHETHER OR NOT THE LOWER COURT AND THE COURT [OF] APPEALS COMMITTED
GRAVE ABUSE OF DISCRETION WHEN, CONTRARY TO THE DETAILED PROCEDURES
DONE BY PETITIONER, BOTH RULED THAT THE RESPONDENT WAS LEFT TO THE
CARE OF THE NURSING STAFF;
VII.
WHETHER OR NOT THE LOWER COURT COMMITTED GRAVE ABUSE OF DISCRETION
WHEN, CONTRARY TO THE MEDICAL PURPOSES OF COSMETIC SURGERY, IT RULED
THAT THE COSMETIC SURGERY MADE THE SCARS EVEN MORE UGLY AND
DECLARED THE COSMETIC SURGERY A FAILURE;
VIII.
WHETHER OR NOT THE LOWER COURT GRAVELY ABUSE OF (SIC) DISCRETION
WHEN, CONTRARY TO RESPONDENTS CONTRARY TESTIMONIES AND THE ABSENCE
OF ANY TESTIMONY, IT RULED THAT THEY ARE ENTITLED TO DAMAGES AND
WHICH WAS UPHELD, ALTHOUGH MODIFIED, BY THE COURT OF APPEALS LIKEWISE
ABUSING ITS DISCRETION.[16]

Petitioner contends that additional documentary exhibits not testified to by any witness are inadmissible in
evidence because they deprived her of her constitutional right to confront the witnesses against her. Petitioner insists
the droplight could not have touched Noras body. She maintains the injury was due to the constant taking of Noras
blood pressure. Petitioner also insinuates the Court of Appeals was misled by the testimony of the medico-legal
officer who never saw the original injury before plastic surgery was performed. Finally, petitioner stresses that
plastic surgery was not intended to restore respondents injury to its original state but rather to prevent further
complication.

Respondents, however, counter that the genuineness and due execution of the additional documentary
exhibits were duly admitted by petitioners counsel. Respondents point out that petitioners blood pressure cuff theory
is highly improbable, being unprecedented in medical history and that the injury was definitely caused by the
droplight. At any rate, they argue, even if the injury was brought about by the blood pressure cuff, petitioner was still
negligent in her duties as Noras attending physician.

Simply put, the threshold issues for resolution are: (1) Are the questioned additional exhibits admissible in
evidence? (2) Is petitioner liable for the injury suffered by respondent Nora Go? Thereafter, the inquiry is whether
the appellate court committed grave abuse of discretion in its assailed issuances.
 As to the first issue, we agree with the Court of Appeals that said exhibits are admissible in evidence. We
note that the questioned exhibits consist mostly of Noras medical records, which were produced by the hospital
during trial pursuant to a subpoena duces tecum. Petitioners counsel admitted the existence of the same when they
were formally offered for admission by the trial court. In any case, given the particular circumstances of this case, a
ruling on the negligence of petitioner may be made based on the res ipsa loquitur doctrine even in the absence of
such additional exhibits.

Petitioners contention that the medico-legal officer who conducted Noras physical examination never saw
her original injury before plastic surgery was performed is without basis and contradicted by the records. Records
show that the medico-legal officer conducted the physical examination on May 7, 1992, while the skin grafting and
the scar revision were performed on Nora on May 22, 1992 and April 30, 1993, respectively.

Coming now to the substantive matter, is petitioner liable for the injury suffered by respondent Nora Go?

The Hippocratic Oath mandates physicians to give primordial consideration to the well-being of their
patients. If a doctor fails to live up to this precept, he is accountable for his acts. This notwithstanding, courts face a
unique restraint in adjudicating medical negligence cases because physicians are not guarantors of care and, they
never set out to intentionally cause injury to their patients. However, intent is immaterial in negligence cases
because where negligence exists and is proven, it automatically gives the injured a right to reparation for the damage
caused.[17]

In cases involving medical negligence, the doctrine of res ipsa loquitur allows the mere existence of an
injury to justify a presumption of negligence on the part of the person who controls the instrument causing the
injury, provided that the following requisites concur:

1. The accident is of a kind which ordinarily does not occur in the absence of someones negligence;
2. It is caused by an instrumentality within the exclusive control of the defendant or defendants; and
3. The possibility of contributing conduct which would make the plaintiff responsible is eliminated. [18]

As to the first requirement, the gaping wound on Noras arm is certainly not an ordinary occurrence in the
act of delivering a baby, far removed as the arm is from the organs involved in the process of giving birth. Such
injury could not have happened unless negligence had set in somewhere.

Second, whether the injury was caused by the droplight or by the blood pressure cuff is of no moment. Both
instruments are deemed within the exclusive control of the physician in charge under the captain of the ship
doctrine. This doctrine holds the surgeon in charge of an operation liable for the negligence of his assistants during
the time when those assistants are under the surgeons control. [19] In this particular case, it can be logically inferred
that petitioner, the senior consultant in charge during the delivery of Noras baby, exercised control over the
assistants assigned to both the use of the droplight and the taking of Noras blood pressure. Hence, the use of the
droplight and the blood pressure cuff is also within petitioners exclusive control.

Third, the gaping wound on Noras left arm, by its very nature and considering her condition, could only be
caused by something external to her and outside her control as she was unconscious while in hypovolemic shock.
Hence, Nora could not, by any stretch of the imagination, have contributed to her own injury.

Petitioners defense that Noras wound was caused not by the droplight but by the constant taking of her
blood pressure, even if the latter was necessary given her condition, does not absolve her from liability. As testified
to by the medico-legal officer, Dr. Arizala, Jr., the medical practice is to deflate the blood pressure cuff immediately
after each use. Otherwise, the inflated band can cause injury to the patient similar to what could have happened in
this case. Thus, if Noras wound was caused by the blood pressure cuff, then the taking of Noras blood pressure must
have been done so negligently as to have inflicted a gaping wound on her arm, [20] for which petitioner cannot escape
liability under the captain of the ship doctrine.

Further, petitioners argument that the failed plastic surgery was not intended as a cosmetic procedure, but
rather as a measure to prevent complication does not help her case. It does not negate negligence on her part.

Based on the foregoing, the presumption that petitioner was negligent in the exercise of her profession
stands unrebutted. In this connection, the Civil Code provides:

ART. 2176. Whoever by act or omission causes damage to another, there being fault or
negligence, is obliged to pay for the damage done.
ART. 2217. Moral damages include physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar
injury. Though incapable of pecuniary computation, moral damages may be recovered if they are
the proximate result of the defendants wrongful act or omission.

Clearly, under the law, petitioner is obliged to pay Nora for moral damages suffered by the latter as a
proximate result of petitioners negligence.

We note, however, that petitioner has served well as Noras obstetrician for her past three successful
deliveries. This is the first time petitioner is being held liable for damages due to negligence in the practice of her
profession. The fact that petitioner promptly took care of Noras wound before infection and other complications set
in is also indicative of petitioners good intentions. We also take note of the fact that Nora was suffering from a
critical condition when the injury happened, such that saving her life became petitioners elemental concern.
Nonetheless, it should be stressed that all these could not justify negligence on the part of petitioner.
Hence, considering the specific circumstances in the instant case, we find no grave abuse of discretion in
the assailed decision and resolution of the Court of Appeals. Further, we rule that the Court of Appeals award of Two
Hundred Thousand Pesos (P200,000) as moral damages in favor of respondents and against petitioner is just and
equitable.[21]
WHEREFORE, the petition is DENIED. The Decision dated October 3, 2002 and Resolution
dated November 19, 2003 of the Court of Appeals in CA-G.R. CV No. 58184 are AFFIRMED.

G.R. No. 192123 March 10, 2014

DR. FERNANDO P. SOLIDUM, vs. PEOPLE OF THE PHILIPPINES,

This appeal is taken by a physician-anesthesiologist who has been pronounced guilty of reckless imprudence
resulting in serious physical injuries by the Regional Trial Court (RTC) and the Court of Appeals (CA). He had been
part of the team of anesthesiologists during the surgical pull-through operation conducted on a three-year old patient
born with an imperforate anus.1

The antecedents are as follows:

Gerald Albert Gercayo (Gerald) was born on June 2, 1992 2 with an imperforate anus. Two days after his birth,
Gerald underwent colostomy, a surgical procedure to bring one end of the large intestine out through the abdominal
wall,3 enabling him to excrete through a colostomy bag attached to the side of his body. 4

On May 17, 1995, Gerald, then three years old, was admitted at the Ospital ng Maynila for a pull-through
operation.5 Dr. Leandro Resurreccion headed the surgical team, and was assisted by Dr. Joselito Luceo, Dr.
Donatella Valea and Dr. Joseph Tibio. The anesthesiologists included Dr. Marichu Abella, Dr. Arnel Razon and
petitioner Dr. Fernando Solidum (Dr. Solidum).6 During the operation, Gerald experienced bradycardia, 7 and went
into a coma.8 His coma lasted for two weeks, 9 but he regained consciousness only after a month. 10 He could no
longer see, hear or move.11

Agitated by her sons helpless and unexpected condition, Ma. Luz Gercayo (Luz) lodged a complaint for reckless
imprudence resulting in serious physical injuries with the City Prosecutors Office of Manila against the attending
physicians.12

Upon a finding of probable cause, the City Prosecutors Office filed an information solely against Dr.
Solidum,13alleging:

That on or about May 17, 1995, in the City of Manila, Philippines, the said accused, being then an anesthesiologist
at the Ospital ng Maynila, Malate, this City, and as such was tasked to administer the anesthesia on three-year old
baby boy GERALD ALBERT GERCAYO, represented by his mother, MA. LUZ GERCAYO, the former having
been born with an imperforate anus [no anal opening] and was to undergo an operation for anal opening [pull
through operation], did then and there willfully, unlawfully and feloniously fail and neglect to use the care and
diligence as the best of his judgment would dictate under said circumstance, by failing to monitor and regulate
properly the levels of anesthesia administered to said GERALD ALBERT GERCAYO and using 100% halothane
and other anesthetic medications, causing as a consequence of his said carelessness and negligence, said GERALD
ALBERT GERCAYO suffered a cardiac arrest and consequently a defect called hypoxic encephalopathy meaning
insufficient oxygen supply in the brain, thereby rendering said GERALD ALBERT GERCAYO incapable of moving
his body, seeing, speaking or hearing, to his damage and prejudice.Contrary to law. 14

The case was initially filed in the Metropolitan Trial Court of Manila, but was transferred to the RTC pursuant to
Section 5 of Republic Act No. 8369 (The Family Courts Act of 1997), 15 where it was docketed as Criminal Case No.
01-190889.

Judgment of the RTC

On July 19, 2004, the RTC rendered its judgment finding Dr. Solidum guilty beyond reasonable doubt of reckless
imprudence resulting to serious physical injuries,16 decreeing:

WHEREFORE, premises considered, the Court finds accused DR. FERNANDO P. SOLIDUM GUILTY beyond
reasonable doubt as principal of the crime charged and is hereby sentenced to suffer the indeterminate penalty of
TWO (2) MONTHS and ONE (1) DAY of arresto mayor as minimum to ONE (1) YEAR, ONE (1) MONTH and
TEN (10) DAYS of prision correccional as maximum and to indemnify, jointly and severally with the Ospital ng
Maynila, Dr. Anita So and Dr. Marichu Abella, private complainant Luz Gercayo, the amount of P500,000.00 as
moral damages and P100,000.00 as exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby CANCELLED. SO ORDERED.17

Upon motion of Dr. Anita So and Dr. Marichu Abella to reconsider their solidary liability, 18 the RTC excluded them
from solidary liability as to the damages, modifying its decision as follows:
WHEREFORE, premises considered, the Court finds accused Dr. Fernando Solidum, guilty beyond reasonable
doubt as principal of the crime charged and is hereby sentenced to suffer the indeterminate penalty of two (2)
months and one (1) day of arresto mayor as minimum to one (1) year, one (1) month and ten (10) days of prision
correccional as maximum and to indemnify jointly and severally with Ospital ng Maynila, private complainant Luz
Gercayo the amount of P500,000.00 as moral damages and P100,000 as exemplary damages and to pay the costs.

Accordingly, the bond posted by the accused for his provisional liberty is hereby cancelled. 19

Decision of the CA

On January 20, 2010, the CA affirmed the conviction of Dr. Solidum,20 pertinently stating and ruling:
The case appears to be a textbook example of res ipsa loquitur.
xxxx
x x x [P]rior to the operation, the child was evaluated and found fit to undergo a major operation. As noted by the
OSG, the accused himself testified that pre-operation tests were conducted to ensure that the child could withstand
the surgery. Except for his imperforate anus, the child was healthy. The tests and other procedures failed to reveal
that he was suffering from any known ailment or disability that could turn into a significant risk. There was not a
hint that the nature of the operation itself was a causative factor in the events that finally led to hypoxia.

In short, the lower court has been left with no reasonable hypothesis except to attribute the accident to a failure in
the proper administration of anesthesia, the gravamen of the charge in this case. The High Court elucidates in Ramos
vs. Court of Appeals 321 SCRA 584

In cases where the res ipsa loquitur is applicable, the court is permitted to find a physician negligent upon proper
proof of injury to the patient, without the aid of expert testimony, where the court from its fund of common
knowledge can determine the proper standard of care.

Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due
care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res
ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and
why it occurred. When the doctrine is appropriate, all that the patient must do is prove a nexus between the
particular act or omission complained of and the injury sustained while under the custody and management of the
defendant without need to produce expert medical testimony to establish the standard of care. Resort to res ipsa
loquitur is allowed because there is no other way, under usual and ordinary conditions, by which the patient can
obtain redress for injury suffered by him.

The lower court has found that such a nexus exists between the act complained of and the injury sustained, and in
line with the hornbook rules on evidence, we will afford the factual findings of a trial court the respect they deserve
in the absence of a showing of arbitrariness or disregard of material facts that might affect the disposition of the
case. People v. Paraiso 349 SCRA 335.

The res ipsa loquitur test has been known to be applied in criminal cases. Although it creates a presumption of
negligence, it need not offend due process, as long as the accused is afforded the opportunity to go forward with his
own evidence and prove that he has no criminal intent. It is in this light not inconsistent with the constitutional
presumption of innocence of an accused.

IN VIEW OF THE FOREGOING, the modified decision of the lower court is affirmed. SO ORDERED. 21Dr.
Solidum filed a motion for reconsideration, but the CA denied his motion on May 7, 2010.22 Hence, this appeal.

Issues

Dr. Solidum avers that:

I.
THE HONORABLE COURT OF APPEALS ERRED IN AFFIRMING THE DECISION OF THE LOWER
COURT IN UPHOLDING THE PETITIONERS CONVICTION FOR THE CRIME CHARGED BASED
ON THE TRIAL COURTS OPINION, AND NOT ON THE BASIS OF THE FACTS ESTABLISHED
DURING THE TRIAL. ALSO, THERE IS A CLEAR MISAPPREHENSION OF FACTS WHICH IF
CORRECTED, WILL RESULT TO THE ACQUITTAL OF THE PETITIONER. FURTHER, THE
HONORABLE COURT ERRED IN AFFIRMING THE SAID DECISION OF THE LOWER COURT, AS
THIS BREACHES THE CRIMINAL LAW PRINCIPLE THAT THE PROSECUTION MUST PROVE
THE ALLEGATIONS OF THE INFORMATION BEYOND REASONABLE DOUBT, AND NOT ON
THE BASIS OF ITS PRESUMPTIVE CONCLUSION.
II.
THE HONORABLE COURT OF APPEALS ERRED IN APPLYING THE PRINCIPLE OF RES IPSA
LOQUITOR (sic) WHEN THE DEFENSE WAS ABLE TO PROVE THAT THERE IS NO NEGLIGENCE
ON THE PART OF THE PETITIONER, AND NO OVERDOSING IN THE APPLICATION OF THE
ANESTHETIC AGENT BECAUSE THERE WAS NO 100% HALOTHANE ADMINISTERED TO THE
CHILD, BUT ONLY ONE (1%) PERCENT AND THE APPLICATION THEREOF, WAS REGULATED
BY AN ANESTHESIA MACHINE. THUS, THE APPLICATION OF THE PRINCIPLE OF RES IPSA
LOQUITOR (sic) CONTRADICTED THE ESTABLISHED FACTS AND THE LAW APPLICABLE IN
THE CASE.
III.
 THE AWARD OF MORAL DAMAGES AND EXEMPLARY DAMAGES IS NOT JUSTIFIED THERE
BEING NO NEGLIGENCE ON THE PART OF THE PETITIONER. ASSUMING THAT THE CHILD IS
ENTITLED TO FINANCIAL CONSIDERATION, IT SHOULD BE ONLY AS A FINANCIAL
ASSISTANCE, BECAUSE THERE WAS NO NEGLIGENCE, AND NO OVERDOSING OF
ANESTHETIC AGENT AND AS SUCH, THE AWARD IS SO EXCESSIVE, AND NO FACTUAL AND
LEGAL BASIS.23
To simplify, the following are the issues for resolution, namely: (a) whether or not the doctrine of res ipsa loquitur
was applicable herein; and (b) whether or not Dr. Solidum was liable for criminal negligence.
Ruling
The appeal is meritorious.
Applicability of the Doctrine of Res Ipsa Loquitur
Res ipsa loquitur is literally translated as "the thing or the transaction speaks for itself." The doctrine res ipsa
loquitur means that "where the thing which causes injury is shown to be under the management of the defendant,
and the accident is such as in the ordinary course of things does not happen if those who have the management use
proper care, it affords reasonable evidence, in the absence of an explanation by the defendant, that the accident arose
from want of care."24 It is simply "a recognition of the postulate that, as a matter of common knowledge and
experience, the very nature of certain types of occurrences may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury in the absence of some explanation by the defendant who
is charged with negligence. It is grounded in the superior logic of ordinary human experience and on the basis of
such experience or common knowledge, negligence may be deduced from the mere occurrence of the accident itself.

Hence, res ipsa loquitur is applied in conjunction with the doctrine of common knowledge."25

Jarcia, Jr. v. People26 has underscored that the doctrine is not a rule of substantive law, but merely a mode of proof or
a mere procedural convenience. The doctrine, when applicable to the facts and circumstances of a given case, is not
meant to and does not dispense with the requirement of proof of culpable negligence against the party charged. It
merely determines and regulates what shall be prima facie evidence thereof, and helps the plaintiff in proving a
breach of the duty. The doctrine can be invoked when and only when, under the circumstances involved, direct
evidence is absent and not readily available.27

The applicability of the doctrine of res ipsa loquitur in medical negligence cases was significantly and exhaustively
explained in Ramos v. Court of Appeals,28 where the Court said

Medical malpractice cases do not escape the application of this doctrine. Thus, res ipsa loquitur has been applied
when the circumstances attendant upon the harm are themselves of such a character as to justify an inference of
negligence as the cause of that harm. The application of res ipsa loquitur in medical negligence cases presents a
question of law since it is a judicial function to determine whether a certain set of circumstances does, as a matter of
law, permit a given inference.

Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a
negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitur is
availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the
proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such
matters clearly within the domain of medical science, and not to matters that are within the common knowledge of
mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of
skill and experience are competent to testify as to whether a patient has been treated or operated upon with a
reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons,
external appearances, and manifest conditions which are observable by any one may be given by non-expert
witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a physician
negligent upon proper proof of injury to the patient, without the aid of expert testimony, where the court from its
fund of common knowledge can determine the proper standard of care. Where common knowledge and experience
teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of
negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence,
which is ordinarily required to show not only what occurred but how and why it occurred. When the doctrine is
appropriate, all that the patient must do is prove a nexus between the particular act or omission complained of and
the injury sustained while under the custody and management of the defendant without need to produce expert
medical testimony to establish the standard of care. Resort to res ipsa loquitur is allowed because there is no other
way, under usual and ordinary conditions, by which the patient can obtain redress for injury suffered by him.

Thus, courts of other jurisdictions have applied the doctrine in the following situations: leaving of a foreign object in
the body of the patient after an operation, injuries sustained on a healthy part of the body which was not under, or in
the area, of treatment, removal of the wrong part of the body when another part was intended, knocking out a tooth
while a patients jaw was under anesthetic for the removal of his tonsils, and loss of an eye while the patient plaintiff
was under the influence of anesthetic, during or following an operation for appendicitis, among others.

Nevertheless, despite the fact that the scope of res ipsa loquitur has been measurably enlarged, it does not
automatically apply to all cases of medical negligence as to mechanically shift the burden of proof to the defendant
to show that he is not guilty of the ascribed negligence. Res ipsa loquitur is not a rigid or ordinary doctrine to be
perfunctorily used but a rule to be cautiously applied, depending upon the circumstances of each case. It is generally
restricted to situations in malpractice cases where a layman is able to say, as a matter of common knowledge and
observation, that the consequences of professional care were not as such as would ordinarily have followed if due
care had been exercised. A distinction must be made between the failure to secure results, and the occurrence of
something more unusual and not ordinarily found if the service or treatment rendered followed the usual procedure
of those skilled in that particular practice. It must be conceded that the doctrine of res ipsa loquitur can have no
application in a suit against a physician or surgeon which involves the merits of a diagnosis or of a scientific
treatment. The physician or surgeon is not required at his peril to explain why any particular diagnosis was not
correct, or why any particular scientific treatment did not produce the desired result. Thus, res ipsa loquitur is not
available in a malpractice suit if the only showing is that the desired result of an operation or treatment was not
accomplished. The real question, therefore, is whether or not in the process of the operation any extraordinary
incident or unusual event outside of the routine performance occurred which is beyond the regular scope of
customary professional activity in such operations, which, if unexplained would themselves reasonably speak to the
average man as the negligent cause or causes of the untoward consequence. If there was such extraneous
intervention, the doctrine of res ipsa loquitur may be utilized and the defendant is called upon to explain the matter,
by evidence of exculpation, if he could.

In order to allow resort to the doctrine, therefore, the following essential requisites must first be satisfied, to wit: (1)
the accident was of a kind that does not ordinarily occur unless someone is negligent; (2) the instrumentality or
agency that caused the injury was under the exclusive control of the person charged; and (3) the injury suffered must
not have been due to any voluntary action or contribution of the person injured.29

The Court considers the application here of the doctrine of res ipsa loquitur inappropriate. Although it should be
conceded without difficulty that the second and third elements were present, considering that the anesthetic agent
and the instruments were exclusively within the control of Dr. Solidum, and that the patient, being then unconscious
during the operation, could not have been guilty of contributory negligence, the first element was undeniably
wanting. Luz delivered Gerald to the care, custody and control of his physicians for a pull-through operation. Except
for the imperforate anus, Gerald was then of sound body and mind at the time of his submission to the physicians.
Yet, he experienced bradycardia during the operation, causing loss of his senses and rendering him immobile.
Hypoxia, or the insufficiency of oxygen supply to the brain that caused the slowing of the heart rate, scientifically
termed as bradycardia, would not ordinarily occur in the process of a pull-through operation, or during the
administration of anesthesia to the patient, but such fact alone did not prove that the negligence of any of his
attending physicians, including the anesthesiologists, had caused the injury. In fact, the anesthesiologists attending to
him had sensed in the course of the operation that the lack of oxygen could have been triggered by the vago-vagal
reflex, prompting them to administer atropine to the patient. 30

This conclusion is not unprecedented. It was similarly reached in Swanson v. Brigham, 31 relevant portions of the
decision therein being as follows:

On January 7, 1973, Dr. Brigham admitted 15-year-old Randall Swanson to a hospital for the treatment of infectious
mononucleosis. The patient's symptoms had included a swollen throat and some breathing difficulty. Early in the
morning of January 9 the patient was restless, and at 1:30 a.m. Dr. Brigham examined the patient. His inspection of
the patient's air passage revealed that it was in satisfactory condition. At 4:15 a.m. Dr. Brigham received a telephone
call from the hospital, advising him that the patient was having respiratory difficulty. The doctor ordered that oxygen
be administered and he prepared to leave for the hospital. Ten minutes later, 4:25 a.m., the hospital called a second
time to advise the doctor that the patient was not responding. The doctor ordered that a medicine be administered,
and he departed for the hospital. When he arrived, the physician who had been on call at the hospital had begun
attempts to revive the patient. Dr. Brigham joined him in the effort, but the patient died.

The doctor who performed the autopsy concluded that the patient died between 4:25 a.m. and 4:30 a.m. of asphyxia,
as a result of a sudden, acute closing of the air passage. He also found that the air passage had been adequate to
maintain life up to 2 or 3 minutes prior to death. He did not know what caused the air passage to suddenly close.
xxxx
It is a rare occurrence when someone admitted to a hospital for the treatment of infectious mononucleosis dies of
asphyxiation. But that is not sufficient to invoke res ipsa loquitur. The fact that the injury rarely occurs does not in
itself prove that the injury was probably caused by someone's negligence. Mason v. Ellsworth, 3 Wn. App. 298, 474
P.2d 909 (1970). Nor is a bad result by itself enough to warrant the application of the doctrine. Nelson v. Murphy, 42
Wn.2d 737, 258 P.2d 472 (1953). See 2 S. Speiser, The Negligence Case Res Ipsa Loquitur 24:10 (1972). The
evidence presented is insufficient to establish the first element necessary for application of res ipsa loquitur doctrine.
The acute closing of the patients air passage and his resultant asphyxiation took place over a very short period of
time. Under these circumstances it would not be reasonable to infer that the physician was negligent. There was no
palpably negligent act. The common experience of mankind does not suggest that death would not be expected
without negligence. And there is no expert medical testimony to create an inference that negligence caused the
injury.

Negligence of Dr. Solidum

In view of the inapplicability of the doctrine of res ipsa loquitur, the Court next determines whether the CA correctly
affirmed the conviction of Dr. Solidum for criminal negligence.

Negligence is defined as the failure to observe for the protection of the interests of another person that degree of
care, precaution, and vigilance that the circumstances justly demand, whereby such other person suffers
injury.32Reckless imprudence, on the other hand, consists of voluntarily doing or failing to do, without malice, an act
from which material damage results by reason of an inexcusable lack of precaution on the part of the person
performing or failing to perform such act.33
Dr. Solidums conviction by the RTC was primarily based on his failure to monitor and properly regulate the level of
anesthetic agent administered on Gerald by overdosing at 100% halothane. In affirming the conviction, the CA
observed:

On the witness stand, Dr. Vertido made a significant turnaround. He affirmed the findings and conclusions in his
report except for an observation which, to all intents and purposes, has become the storm center of this dispute. He
wanted to correct one piece of information regarding the dosage of the anesthetic agent administered to the child. He
declared that he made a mistake in reporting a 100% halothane and said that based on the records it should have
been 100% oxygen.

The records he was relying on, as he explains, are the following:

(a) the anesthesia record A portion of the chart in the record was marked as Exhibit 1-A and 1-B to
indicate the administration at intervals of the anesthetic agent.

(b) the clinical abstract A portion of this record that reads as follows was marked Exhibit 3A. 3B
Approximately 1 hour and 45 minutes through the operation, patient was noted to have bradycardia (CR =
70) and ATSO4 0.2 mg was immediately administered. However, the bradycardia persisted, the inhalational
agent was shut off, and the patient was ventilated with 100% oxygen and another dose of ATSO4 0.2 mg
was given. However, the patient did not respond until no cardiac rate can be auscultated and the surgeons
were immediately told to stop the operation. The patient was put on a supine position and CPR was
initiated. Patient was given 1 amp of epinephrine initially while continuously doing cardiac massage still
with no cardiac rate appreciated; another ampule of epinephrine was given and after 45 secs, patients vital
signs returned to normal. The entire resuscitation lasted approximately 3-5 mins. The surgeons were then
told to proceed to the closure and the childs vital signs throughout and until the end of surgery were: BP =
110/70; CR = 116/min and RR = 20-22 cycles/min (on assisted ventilation).

Dr. Vertido points to the crucial passage in the clinical abstract that the patient was ventilated with 100% oxygen and
another dose of ATSO4 when the bradycardia persisted, but for one reason or another, he read it as 100% halothane.
He was asked to read the anesthesia record on the percentage of the dosage indicated, but he could only sheepishly
note I cant understand the number. There are no clues in the clinical abstract on the quantity of the anesthetic agent
used. It only contains the information that the anesthetic plan was to put the patient under general anesthesia using a
nonrebreathing system with halothane as the sole anesthetic agent and that 1 hour and 45 minutes after the operation
began, bradycardia occurred after which the inhalational agent was shut off and the patient administered with 100%
oxygen. It would be apparent that the 100% oxygen that Dr. Vertido said should be read in lieu of 100% halothane
was the pure oxygen introduced after something went amiss in the operation and the halothane itself was reduced or
shut off.

The key question remains what was the quantity of halothane used before bradycardia set in?

The implication of Dr. Vertidos admission is that there was no overdose of the anesthetic agent, and the accused Dr.
Solidum stakes his liberty and reputation on this conclusion. He made the assurance that he gave his patient the
utmost medical care, never leaving the operating room except for a few minutes to answer the call of nature but
leaving behind the other members of his team Drs. Abella and Razon to monitor the operation. He insisted that he
administered only a point 1% not 100% halothane, receiving corroboration from Dr. Abella whose initial MA in the
record should be enough to show that she assisted in the operation and was therefore conversant of the things that
happened. She revealed that they were using a machine that closely monitored the concentration of the agent during
the operation.

But most compelling is Dr. Solidums interpretation of the anesthesia record itself, as he takes the bull by the horns,
so to speak. In his affidavit, he says, reading from the record, that the quantity of halothane used in the operation is
one percent (1%) delivered at time intervals of 15 minutes. He studiedly mentions the concentration of halothane
as reflected in the anesthesia record (Annex D of the complaint-affidavit) is only one percent (1%) The numbers
indicated in 15 minute increments for halothane is an indication that only 1% halothane is being delivered to the
patient Gerard Gercayo for his entire operation; The amount of halothane delivered in this case which is only one
percent cannot be summated because halothane is constantly being rapidly eliminated by the body during the entire
operation.

xxxx

In finding the accused guilty, despite these explanations, the RTC argued that the volte-face of Dr. Vertido on the
question of the dosage of the anesthetic used on the child would not really validate the non-guilt of the
anesthesiologist. Led to agree that the halothane used was not 100% as initially believed, he was nonetheless
unaware of the implications of the change in his testimony. The court observed that Dr. Vertido had described the
condition of the child as hypoxia which is deprivation of oxygen, a diagnosis supported by the results of the CT
Scan. All the symptoms attributed to a failing central nervous system such as stupor, loss of consciousness, decrease
in heart rate, loss of usual acuity and abnormal motor function, are manifestations of this condition or syndrome. But
why would there be deprivation of oxygen if 100% oxygen to 1% halothane was used? Ultimately, to the court,
whether oxygen or halothane was the object of mistake, the detrimental effects of the operation are incontestable,
and they can only be led to one conclusion if the application of anesthesia was really closely monitored, the event
could not have happened.34
The Prosecution did not prove the elements of reckless imprudence beyond reasonable doubt because the
circumstances cited by the CA were insufficient to establish that Dr. Solidum had been guilty of inexcusable lack of
precaution in monitoring the administration of the anesthetic agent to Gerald. The Court aptly explained in Cruz v.
Court of Appeals35 that:

Whether or not a physician has committed an "inexcusable lack of precaution" in the treatment of his patient is to be
determined according to the standard of care observed by other members of the profession in good standing under
similar circumstances bearing in mind the advanced state of the profession at the time of treatment or the present
state of medical science. In the recent case of Leonila Garcia-Rueda v. Wilfred L. Pacasio, et. al., this Court stated
that in accepting a case, a doctor in effect represents that, having the needed training and skill possessed by
physicians and surgeons practicing in the same field, he will employ such training, care and skill in the treatment of
his patients. He therefore has a duty to use at least the same level of care that any other reasonably competent doctor
would use to treat a condition under the same circumstances. It is in this aspect of medical malpractice that expert
testimony is essential to establish not only the standard of care of the profession but also that the physician's conduct
in the treatment and care falls below such standard. Further, inasmuch as the causes of the injuries involved in
malpractice actions are determinable only in the light of scientific knowledge, it has been recognized that expert
testimony is usually necessary to support the conclusion as to causation.
xxxx
In litigations involving medical negligence, the plaintiff has the burden of establishing appellant's negligence and for
a reasonable conclusion of negligence, there must be proof of breach of duty on the part of the surgeon as well as a
causal connection of such breach and the resulting death of his patient. In Chan Lugay v. St Luke's Hospital, Inc.,
where the attending physician was absolved of liability for the death of the complainants wife and newborn baby,
this Court held that:

"In order that there may be a recovery for an injury, however, it must be shown that the injury for which recovery is
sought must be the legitimate consequence of the wrong done; the connection between the negligence and the injury
must be a direct and natural sequence of events, unbroken by intervening efficient causes. In other words, the
negligence must be the proximate cause of the injury. For, negligence, no matter in what it consists, cannot create a
right of action unless it is the proximate cause of the injury complained of. And the proximate cause of an injury is
that cause, which, in natural and continuous sequence, unbroken by any efficient intervening cause, produces the
injury, and without which the result would not have occurred."

An action upon medical negligence whether criminal, civil or administrative calls for the plaintiff to prove by
competent evidence each of the following four elements, namely: (a) the duty owed by the physician to the patient,
as created by the physician-patient relationship, to act in accordance with the specific norms or standards established
by his profession; (b) the breach of the duty by the physicians failing to act in accordance with the applicable
standard of care; (3) the causation, i.e., there must be a reasonably close and causal connection between the
negligent act or omission and the resulting injury; and (4) the damages suffered by the patient.36

In the medical profession, specific norms or standards to protect the patient against unreasonable risk, commonly
referred to as standards of care, set the duty of the physician to act in respect of the patient. Unfortunately, no clear
definition of the duty of a particular physician in a particular case exists. Because most medical malpractice cases
are highly technical, witnesses with special medical qualifications must provide guidance by giving the knowledge
necessary to render a fair and just verdict. As a result, the standard of medical care of a prudent physician must be
determined from expert testimony in most cases; and in the case of a specialist (like an anesthesiologist), the
standard of care by which the specialist is judged is the care and skill commonly possessed and exercised by similar
specialists under similar circumstances. The specialty standard of care may be higher than that required of the
general practitioner.37

The standard of care is an objective standard by which the conduct of a physician sued for negligence or malpractice
may be measured, and it does not depend, therefore, on any individual physicians own knowledge either. In
attempting to fix a standard by which a court may determine whether the physician has properly performed the
requisite duty toward the patient, expert medical testimony from both plaintiff and defense experts is required. The
judge, as the trier of fact, ultimately determines the standard of care, after listening to the testimony of all medical
experts.38

Here, the Prosecution presented no witnesses with special medical qualifications in anesthesia to provide guidance
to the trial court on what standard of care was applicable. It would consequently be truly difficult, if not impossible,
to determine whether the first three elements of a negligence and malpractice action were attendant.

Although the Prosecution presented Dr. Benigno Sulit, Jr., an anesthesiologist himself who served as the Chairman
of the Committee on Ethics and Malpractice of the Philippine Society of Anesthesiologists that investigated the
complaint against Dr. Solidum, his testimony mainly focused on how his Committee had conducted the
investigation.39 Even then, the report of his Committee was favorable to Dr. Solidum,40 to wit:

Presented for review by this committee is the case of a 3 year old male who underwent a pull-thru operation and was
administered general anesthesia by a team of anesthesia residents. The patient, at the time when the surgeons was
manipulating the recto-sigmoid and pulling it down in preparation for the anastomosis, had bradycardia. The
anesthesiologists, sensing that the cause thereof was the triggering of the vago-vagal reflex, administered atropine to
block it but despite the administration of the drug in two doses, cardiac arrest ensued. As the records show, prompt
resuscitative measures were administered and spontaneous cardiac function re-established in less than five (5)
minutes and that oxygen was continuously being administered throughout, unfortunately, as later become manifest,
patient suffered permanent irreversible brain damage.
In view of the actuations of the anaesthesiologists and the administration of anaesthesia, the committee find that the
same were all in accordance with the universally accepted standards of medical care and there is no evidence of any
fault or negligence on the part of the anaesthesiologists.

Dr. Antonio Vertido, a Senior Medico-Legal Officer of the National Bureau of Investigation, was also presented as a
Prosecution witness, but his testimony concentrated on the results of the physical examination he had conducted on
Gerald, as borne out by the following portions of his direct examination, to wit:

FISCAL CABARON Doctor, what do you mean by General Anesthetic Agent?

WITNESS General Anesthetic Agent is a substance used in the conduction of Anesthesia and in this case, halothane
was used as a sole anesthetic agent.

xxxx

Q Now under paragraph two of page 1 of your report you mentioned that after one hour and 45 minutes after the
operation, the patient experienced a bradycardia or slowing of heart rate, now as a doctor, would you be able to tell
this Honorable Court as to what cause of the slowing of heart rate as to Gerald Gercayo?

WITNESS Well honestly sir, I cannot give you the reason why there was a bradycardia of time because is some
reason one way or another that might caused bradycardia.
FISCAL CABARON What could be the possible reason?
A Well bradycardia can be caused by anesthetic agent itself and that is a possibility, were talking about possibility
here.
Q What other possibility do you have in mind, doctor?
A Well, because it was an operation, anything can happen within that situation.
FISCAL CABARON Now, this representation would like to ask you about the slowing of heart rate, now what is the
immediate cause of the slowing of the heart rate of a person?
WITNESS Well, one of the more practical reason why there is slowing of the heart rate is when you do a vagal
reflex in the neck wherein the vagal receptors are located at the lateral part of the neck, when you press that, you
produce the slowing of the heart rate that produce bradycardia.
Q I am pro[p]ounding to you another question doctor, what about the deficiency in the supply of oxygen by the
patient, would that also cause the slowing of the heart rate?
A Well that is a possibility sir, I mean not as slowing of the heart rate, if there is a hypoxia or there is a low oxygen
level in the blood, the normal thing for the heart is to pump or to do not a bradycardia but a to counter act the
Hypoxia that is being experienced by the patient
(sic).
xxxx
Q Now, you made mention also doctor that the use of general anesthesia using 100% halothane and other anesthetic
medications probably were contributory to the production of hypoxia.
A Yes, sir in general sir.41
On cross-examination, Dr. Vertido expounded more specifically on his interpretation of the anesthesia record and the
factors that could have caused Gerald to experience bradycardia, viz:
ATTY. COMIA I noticed in, may I see your report Doctor, page 3, will you kindly read to this Honorable court your
last paragraph and if you will affirm that as if it is correct?
A "The use of General Anesthesia, that is using 100% Halothane probably will be contributory to the production of
Hypoxia and - - - -"
ATTY COMIA And do you affirm the figure you mentioned in this Court Doctor?
WITNESS Based on the records, I know the - - -
Q 100%?
A 100% based on the records.
Q I will show you doctor a clinical record. I am a lawyer I am not a doctor but will you kindly look at this and tell
me where is 100%, the word "one hundred" or 1-0-0, will you kindly look at this Doctor, this Xerox copy if you can
show to this Honorable Court and even to this representation the word "one hundred" or 1-0-0 and then call me.
xxxx
ATTY. COMIA Doctor tell this Honorable Court where is that 100, 1-0-0 and if there is, you just call me and even
the attention of the Presiding Judge of this Court. Okay, you read one by one.
WITNESS Well, are you only asking 100%, sir?
ATTY. COMIA Im asking you, just answer my question, did you see there 100% and 100 figures, tell me, yes or
no?
WITNESS Im trying to look at the 100%, there is no 100% there sir.
ATTY. COMIA Okay, that was good, so you Honor please, may we request also temporarily, because this is just a
xerox copy presented by the fiscal, that the percentage here that the Halothane administered by Dr. Solidum to the
patient is 1% only so may we request that this portion, temporarily your Honor, we are marking this anesthesia
record as our Exhibit 1 and then this 1% Halothane also be bracketed and the same be marked as our Exhibit "1-A".
xxxx
ATTY. COMIA Doctor, my attention was called also when you said that there are so many factors that contributed to
Hypoxia is that correct?
WITNESS Yes, sir.
Q I remember doctor, according to you there are so many factors that contributed to what you call hypoxia and
according to you, when this Gerald suffered hypoxia, there are other factors that might lead to this Hypoxia at the
time of this operation is that correct?
WITNESS The possibility is there, sir.
Q And according to you, it might also be the result of such other, some or it might be due to operations being
conducted by the doctor at the time when the operation is being done might also contribute to that hypoxia is that
correct?
A That is a possibility also.
xxxx
ATTY. COMIA How will you classify now the operation conducted to this Gerald, Doctor?
WITNESS Well, that is a major operation sir.
Q In other words, when you say major operation conducted to this Gerald, there is a possibility that this Gerald
might [be] exposed to some risk is that correct?
A That is a possibility sir.
Q And which according to you that Gerald suffered hypoxia is that correct?
A Yes, sir.
Q And that is one of the risk of that major operation is that correct?
A That is the risk sir.42

At the continuation of his cross-examination, Dr. Vertido maintained that Geralds operation for his imperforate
anus, considered a major operation, had exposed him to the risk of suffering the same condition. 43 He then corrected
his earlier finding that 100% halothane had been administered on Gerald by saying that it should be 100% oxygen. 44

Dr. Solidum was criminally charged for "failing to monitor and regulate properly the levels of anesthesia
administered to said Gerald Albert Gercayo and using 100% halothane and other anesthetic medications." 45However,
the foregoing circumstances, taken together, did not prove beyond reasonable doubt that Dr. Solidum had been
recklessly imprudent in administering the anesthetic agent to Gerald. Indeed, Dr. Vertidos findings did not preclude
the probability that other factors related to Geralds major operation, which could or could not necessarily be
attributed to the administration of the anesthesia, had caused the hypoxia and had then led Gerald to experience
bradycardia. Dr. Vertido revealingly concluded in his report, instead, that "although the anesthesiologist followed the
normal routine and precautionary procedures, still hypoxia and its corresponding side effects did occur." 46

The existence of the probability about other factors causing the hypoxia has engendered in the mind of the Court a
reasonable doubt as to Dr. Solidums guilt, and moves us to acquit him of the crime of reckless imprudence resulting
to serious physical injuries. "A reasonable doubt of guilt," according to United States v. Youthsey: 47

x x x is a doubt growing reasonably out of evidence or the lack of it. It is not a captious doubt; not a doubt
engendered merely by sympathy for the unfortunate position of the defendant, or a dislike to accept the
responsibility of convicting a fellow man. If, having weighed the evidence on both sides, you reach the conclusion
that the defendant is guilty, to that degree of certainty as would lead you to act on the faith of it in the most
important and crucial affairs of your life, you may properly convict him. Proof beyond reasonable doubt is not proof
to a mathematical demonstration. It is not proof beyond the possibility of mistake.

We have to clarify that the acquittal of Dr. Solidum would not immediately exempt him from civil
liability.1wphi1 But we cannot now find and declare him civilly liable because the circumstances that have been
established here do not present the factual and legal bases for validly doing so. His acquittal did not derive only from
reasonable doubt. There was really no firm and competent showing how the injury to Gerard had been caused. That
meant that the manner of administration of the anesthesia by Dr. Solidum was not necessarily the cause of the
hypoxia that caused the bradycardia experienced by Gerard. Consequently, to adjudge Dr. Solidum civilly liable
would be to speculate on the cause of the hypoxia. We are not allowed to do so, for civil liability must not rest on
speculation but on competent evidence.

Liability of Ospital ng Maynila

Although the result now reached has resolved the issue of civil liability, we have to address the unusual decree of the
RTC, as affirmed by the CA, of expressly holding Ospital ng Maynila civilly liable jointly and severally with Dr.
Solidum. The decree was flawed in logic and in law.

In criminal prosecutions, the civil action for the recovery of civil liability that is deemed instituted with the criminal
action refers only to that arising from the offense charged. 48 It is puzzling, therefore, how the RTC and the CA could
have adjudged Ospital ng Maynila jointly and severally liable with Dr. Solidum for the damages despite the obvious
fact that Ospital ng Maynila, being an artificial entity, had not been charged along with Dr. Solidum. The lower
courts thereby acted capriciously and whimsically, which rendered their judgment against Ospital ng Maynila void
as the product of grave abuse of discretion amounting to lack of jurisdiction.

Not surprisingly, the flawed decree raises other material concerns that the RTC and the CA overlooked. We deem it
important, then, to express the following observations for the instruction of the Bench and Bar.

For one, Ospital ng Maynila was not at all a party in the proceedings. Hence, its fundamental right to be heard was
not respected from the outset. The R TC and the CA should have been alert to this fundamental defect. Verily, no
person can be prejudiced by a ruling rendered in an action or proceeding in which he was not made a party. Such a
rule would enforce the constitutional guarantee of due process of law.

Moreover, Ospital ng Maynila could be held civilly liable only when subsidiary liability would be properly
enforceable pursuant to Article 103 of the Revised Penal Code. But the subsidiary liability seems far-fetched here.
The conditions for subsidiary liability to attach to Ospital ng Maynila should first be complied with. Firstly, pursuant
to Article 103 of the Revised Penal Code, Ospital ng Maynila must be shown to be a corporation "engaged in any
kind of industry." The term industry means any department or branch of art, occupation or business, especially one
that employs labor and capital, and is engaged in industry. 49 However, Ospital ng Maynila, being a public hospital,
was not engaged in industry conducted for profit but purely in charitable and humanitarian work. 50 Secondly,
assuming that Ospital ng Maynila was engaged in industry for profit, Dr. Solidum must be shown to be an employee
of Ospital ng Maynila acting in the discharge of his duties during the operation on Gerald. Yet, he definitely was not
such employee but a consultant of the hospital. And, thirdly, assuming that civil liability was adjudged against Dr.
Solidum as an employee (which did not happen here), the execution against him was unsatisfied due to his being
insolvent.

WHEREFORE, the Court GRANTS the petition for review on certiorari; REVERSES AND SETS ASIDE the
decision promulgated on January 20, 2010; ACQUITS Dr. Fernando P. Solidum of the crime of reckless imprudence
resulting to serious physical injuries; and MAKES no pronouncement on costs of suit.

A.C. No. 2756. November 12, 1987

PRUDENTIAL BANK, Complainant, v. JUDGE JOSE P. CASTRO and ATTY. BENJAMIN M.

GRECIA, Respondents.

1. LEGAL ETHICS; DISBARMENT PROCEEDINGS; "UNHOLY ALLIANCE" BETWEEN THE PRESIDING

JUDGE OF A TRIAL COURT AND LAWYER, ESTABLISHED. Respondents actuations reveal an "unholy
alliance" between them and a clear indication of partiality for the party represented by the other to the detriment of
the objective dispensation of justice. Writs of Attachment and Execution were issued and implemented with
lightning speed; the case itself was railroaded to a swift conclusion through a summary judgment: astronomical
sums were awarded as damages and attorneys fees; and topping it all, the right to appeal was foreclosed by clever
maneuvers.

2. ID.; ID.; ID.; MODUS OPERANDI IN OTHER CASES, TAKEN JUDICIAL NOTICE OF. The Court also
takes judicial notice of a strikingly similar modus operandi followed in "Manchester Development Corporation, Et
Al., v. Court of Appeals, Cityland Development Corporation, et als., (G.R. No. 75919, May 7, 1987; Civil Case No.
Q-43867, RTC Quezon City), where the original complaint was filed by the same Atty. Mario E. Valderrama and
was originally pending before Respondent Judges Sala. Thus the staggering sum claimed in the Complaint of
about P78M but the clear attempt to limit the filing fees to P410.00 by the simple expedient of limiting the prayer to
such sums of money as "may be duly proved during the trial;" the fraud alleged in the complaint; the issuance of a
writ of attachment by Respondent Judge the day after the filing of the Complaint after the approval of a P10M bond
issued by Stronghold Insurance Co., a company blacklisted in Quezon City; the immediate implementation of the
attachment the day after its issuance with the garnishment of the operating funds of Cityland, and the denial by
Respondent Judge of the Motion to Strike Out Complaint filed by Cityland for the reasons that the insufficiency of
the filing fee is not a ground for dismissal citing Magaspi v. Ramolete (115 SCRA 193) and that the action was one
for specific performance. If respondent Judge was unable to see the case to completion, and perhaps resolve it in the
same manner as he did the Macro Case, it was only by reason of the re-raffle ordered by this Court of that case, with
22 others, to all the Regional Trial Court Judges of Quezon City, "with the exception of Respondent Judge," in this
Courts Resolution of June 18, 1985 in Adm. Matter No. 85-6-7899-RTC.

3. ID.; ID.; ADMINISTRATIVE LIABILITY; PRINCIPLE OF RES IPSA LOQUITOR, APPLIED. The modus
operandi in the foregoing cases, taken cognizance of by this Court either judicially or administratively, reveal the
hidden maneuvers of a nefarious network, with respondents as the prime movers. Those cases sufficiently provide
the basis for the determination of respondents administrative liability without need for further inquiry into the
matter under the principle of res ipsa loquitur. (People v. Hon. Manuel Valenzuela, G.R. Nos. L-63950-60, April 19,
1985, 135 SCRA 712; Resolution, In The Matter Of Proceedings For Disciplinary Action Against Atty. Wenceslao
Laureta, etc., in G.R. No. 68635, entitled "Eva Maravilla-Ilustre v. Hon. Intermediate Appellate Court, Et Al.," May
14, 1987).

4. ID.; ID.; IMPOSITION OF DISCIPLINARY SANCTIONS, WARRANTED. The imposition of disciplinary

sanctions against respondents is warranted as we were already constrained to do in respect of Respondent Judge.
Their questionable operations have blotted the image of both Bench and Bar and have been inimical to public
interest and welfare. Their unethical misdeeds call for the supreme sanction. Indeed, those actuations would have
passed unnoticed but for this Administrative Complaint filed by a highly respected member of the business
community, and the disclosure by concerned colleagues in the profession appalled by respondents anomalous
actuations in a string of cases. Respondent Grecia has been proven to be lacking in fidelity to his oath of office
essential to his continuance as an attorney-at-law.

On April 11, 1985, the late Pio Pedrosa, former President of complainant Prudential Bank, filed this Administrative
Complaint praying that Judge Jose P. Castro, former Presiding Judge of the Regional Trial Court in Quezon City,
Branch LXXXV, be disciplinarily dealt with and that Disbarment proceedings be instituted against respondent Atty.
Benjamin M. Grecia.

This Decision deals only with the Disbarment Case against Respondent Grecia, the Complaint as against respondent
Judge Castro having been decided by this Court en banc on June 5, 1986.

The Complaint alleges, among others:jgc:chanrobles.com.ph

"x x x

"3. In 1976, 1979 and 1983, Macro Textile Mills Corporation (MACRO for short) applied for and was granted credit
facilities by the bank secured by real estate mortgages.

"4. MACRO having repeatedly defaulted on its obligations, the bank finally applied for extrajudicial foreclosure of
its mortgages over TCT No. 261842. The sale was conducted, consummated and registered in the day book of the
register of deeds and annotated on the title itself.

"5. On August 2, 1984, MACRO through Atty. Mario E. Valderrama filed a complaint for annulment of mortgage
and to enjoin foreclosure.

"6. On August 6, 1984, MACRO through new counsel here respondent Benjamin M. Grecia filed an amended
complaint alleging and claiming P50,000,000.00 actual and compensatory damages and P20,000,000.00 as value of
the mortgaged property.

"7. On the same day, August 6, 1984, respondent Judge Jose P. Castro issued an order restraining the register of
deeds of Quezon City from acting on, and completing by affixing his signature on, the assailed registration of the
sale at public auction of the mortgage property described under TCT No. 261842 subject of this action" . . . .

"8. On the same day, August 6, 1984, respondent Judge Jose P. Castro also issued an order of attachment of the
properties of the bank "to the value of the said demands of costs of suit.." . . .

"The writ of attachment having been attempted to be executed against the bank, the bank posted on August 16, 1984
a P10 million bond to discharge it and filed a motion to discharge attachment without prejudice. Respondent judge
never acted on said bond or motion.

"9. On August 10, 1984, the day scheduled for the hearing of respondent MACROs application for preliminary
injunction, the bank filed a motion to discharge restraining order and opposition to application for preliminary
injunction and attachment. Respondent judge never resolved the motion nor approved the bond.

"10. For the filing of the complaint, the clerk of court collected only the amount of P210.00 evidenced by Official
Receipt Nos. 6328484 and 6328645 both dated August 2, 1984. . . ."cralaw virtua1aw library

"Since the original complaint interposed a P50 million claim for damages and sought the annulment of mortgage
over a property worth several millions although its value was not stated and since the amended complaint increased
the claim for damages to P70 million and also sought the annulment of mortgage over a property now stated to be
worth P20 million, the bank filed a motion on August 15, 1984 to collect the proper filing fees which at least should
have been P139,900.00. Despite motions to resolve dated August 17, September 3 and October 26, 1984, respondent
Judge Jose P. Castro took no action whatsoever.

"11. Respondent Judge Jose P. Castro rendered on November 16, 1984 (notice received November 26, 1984)
summary judgment annulling the banks mortgage and ordering the bank to pay P30 million as actual damages and
P3 million as exemplary damages plus 20% attorneys fees for respondent Atty. Benjamin M. Grecia - despite
opposition. . . ."cralaw virtua1aw library

"x x x

"12. On February 7, 1985, respondent Judge Jose P. Castro issued an order denying the banks 19-page (excluding
affidavits) motion for reconsideration as pro-forma and on February 13, 1985 an order granting MARCOs motion
for execution of his summary judgment as final and executory on the ground that the allegedly pro forma motion for
reconsideration did not toll the running of the period of appeal.

"x x x

"(b) He issued that writ of execution notwithstanding the timely filing by petitioner of a notice of appeal.

"The banks counsel having received notice of the order denying their motion for reconsideration on February 13,
1985, on that same day of their receipt of said notice, the bank filed their notice of appeal to the Intermediate
Appellate Court though it still had four (4) days left of its 15-day period of appeal.

"(c) Worse, the execution of said writ of execution was attempted on a Friday, at 3:55 P.M., with a demand for the
moneys of the banks tellers rather than for other assets.

"At 3:55 P.M., Friday, February 15, 1985, the sheriff accompanied by MACROs Atty. Benjamin Grecia (respondent
here) and several other deputy sheriffs and men swooped down on the banks branches and principal office to
enforce the writ of execution dated February 14, 1985. They demanded delivery to them of all available cash money
but, it having been closing house, the tellers had already brought their cash to the vaults which were then closed.
They thereupon took the boxes and coin counters, adding machines, typewriters, etc. and set them near the doors of
the bank. At past midnight, they left with notice that they would resume execution on Monday morning at the
principal office of the bank and its branches.

"With those boxes, coin counters, adding machines, typewriters, etc. sequestered, the bank and its branches would
not be able to service depositors and clients next Monday - and feared that if it could not service its depositors and
clients a run might occur.

"Fortunately, the Supreme Court in G.R. No. 69907 intervened that early Monday morning with a restraining order.

"x x x

"16. Attached hereto as Annex "N" hereof is a list of other cases involving other parties which show a joint venture
between respondent Judge Jose P. Castro and respondent Atty. Benjamin M. Grecia.

"WHEREFORE, it is respectfully prayed that the Supreme Court order the investigation of respondents Judge Jose
P. Castro and Atty. Benjamin M. Grecia." 1

Answering the charge for disbarment, Respondent Grecia avers, inter alia: (1) that the facts and proceedings alleged
in the complaint do not constitute any of the recognized grounds for disbarment besides the fact that they are the
very subject-matter of the appeal taken to the Court of Appeals in AC-G.R. CV No. 05611 still pending thereat, so
that the complaint is improper and premature; (2) that the charge is purely and plainly an unfounded grievance of a
party which lost its case in the Trial Court against the lawyer of the party which prevailed in that case and is
intended merely to harass, embarrass and degrade him and to deprive him of his livelihood; (3) that the collection of
the docket fee is an act within the province of the clerk of court which cannot be imputed to respondent nor serve as
a ground for his disbarment; (4) that the "list of other cases involving other parties . . . show a joint venture
between respondents is an empty and a gratuitous conclusion, an unjust, improper and insupportable accusation,
which renders the complaint insufficient and, consequently dismissible," nine (9) out of the fourteen (14) cases in
the list being cases of other lawyers, and that the proper parties to make the charge of a "joint venture" being the
parties in the "other cases;" and (5) that in almost thirty (30) years of law practice, respondent has not once betrayed
his oath of office but has observed "photographic fidelity to the Canons of Legal Ethics."cralaw virtua1aw library

On May 8, 1986, Respondent Grecia filed a Motion to Dismiss Disbarment Complaint and for Early Resolution of
the Case on the ground that the Decision of the Court of Appeals promulgated on April 23, 1986 in AC-G.R. No.
05611 (Case No. Q-42349 of the RTC of Quezon City) entitled "Macro Textiles Mills Corp., Plaintiff-Appellee v.
Prudential Bank & Trust Co., Et Al., Defendants-Appellants" "conclusively sustained and upheld the facts involved
and proceedings taken in Case No. Q-42349; overruled the arguments advanced by the complainant bank against
said facts and proceedings, and with the exception of a modification of the sums of damages and attorneys fees
awarded to Macro, affirmed the decision of the trial court."cralaw virtua1aw library

On June 5, 1986, the Court en banc rendered a Per Curiam Decision as against respondent Judge Jose P. Castro,
which is quoted in full below in order to furnish the proper backdrop to the Disbarment Case against Respondent
Grecia.

"Prudential Bank (Complainant Bank) instituted this administrative case on April 11, 1985, praying this Court to
investigate Respondent Judge Jose P. Castro, presiding over Regional Trial Court, National Capital Judicial Region,
Branch LXXXV, Quezon City, (Respondent Judge), and Atty. Benjamin M. Grecia (Respondent Grecia), in
connection with their actuations in a civil case (the RTC CASE), tried and decided by Respondent Judge and where
plaintiff was represented by Respondent Grecia.

"The RTC CASE was entitled Macro Textile Mills Corporation, Plaintiff, v. Prudential Bank & Trust Co., AKA The
Prudential Bank and Benjamin Baens del Rosario, Notary Public for Quezon City, Defendants. Plaintiff in the RTC
CASE shall hereinafter be referred to simply as MACRO. It was the registered owner of a 19,493 sq. m. lot in
Quezon City, covered by TCT No. 261842 (the MACRO PROPERTY), alleged to have a value of about P20
million.

"What has been prayed for by Complainant Bank is the exercise by this Court of its power to discipline Respondent
Judge, and the initiation of proceedings for the disbarment or suspension of Respondent Grecia.

"Based on documents submitted to this Court, the relevant facts upon which this Resolution is based may be stated
as follows:jgc:chanrobles.com.ph

"1. The President and General Manager of MACRO is named Go Cun Uy. He is also a partner of, or a signatory for,
a partnership named Galaxy Tricot Manufacturing Co. (GALAXY, for short).

"2. As of January 24, 1983, MACRO and GALAXY, together, were indebted to Complainant Bank in the principal
sum of P9,510,000.00.

"3. On the said date of January 24, 1983, MACRO, through Go Cun Uy, executed a mortgage over the MACRO
PROPERTY ("notarized" on January 26, 1983) in favor of Complainant Bank to guarantee the then, as well as
future, obligations of MACRO and/or GALAXY in favor of the mortgage.

"4. More than a year after, or on April 11, 1984, Complainant Bank sent a letter of demand to MACRO/GALAXY
demanding payment of their pending obligations in the total sum of P11,629,503.92, exclusive of interest.

"5. On July 12, 1984, Benjamin Baens del Rosario, as a Notary Public for Quezon City, issued a "Notice of Sale By
Notary," scheduled for August 6, 1984, for the extra-judicial foreclosure sale of the MACRO PROPERTY.

"6. On August 2, 1984, MACRO filed the complaint in the RTC CASE through Atty. Mario E. Valderama, alleging
principally that Go Cun Uy had no authority to mortgage the MACRO PROPERTY and that his execution of the
mortgage was due to fraudulent manipulations of Complainant Bank. The Complaint further stated that MACRO
was entitled "to actual damages amounting to at least P50,000,000.00 as well as to compensatory damages."
Preliminary attachment was prayed for on so much of the properties of defendant Bank and defendant Notary as
may be sufficient to satisfy any judgment that may be rendered against them.

"7. Four days thereafter, or on August 6, 1984, the Complaint was amended over the signature of Respondent
Grecia. The amendments are of no substantial relevance to this Resolution. The same prayer for preliminary
attachment was reiterated.

"8. On the same date of August 6, 1984, Respondent Judge, stating that the sale had not taken place on that date,
issued an Order temporarily restraining the Register of Deeds of Quezon City from registering any Deed of Sale of
the MACRO PROPERTY.

"9. Respondent Judge then resolved the RTC Case through a summary judgment rendered on November 16, 1984. In
the Decision, the mortgage of the MACRO PROPERTY was declared null and void, and Complainant Bank and
Notary Public del Rosario were ordered to pay MACRO more than P33 million in damages plus 20% attorneys
fees.

"10. Further, paragraph 2 of the dispositive part of the Decision provided as follows:jgc:chanrobles.com.ph

"2. The Register of Deeds of Quezon City to cancel immediately the registration and annotation of the Deed of Real
Estate Mortgage dated January 26, 1983, as well as its foreclosure, notice of sale and certificate of sale on the
Original Transfer Certificate of Title No. 261842;

"The foregoing paragraph 2 is of primary relevance to this Resolution. What will be noted therein is that the owners
duplicate of TCT No. 261842, still in the possession of Complainant Bank, was not declared cancelled. The
continued existences of that owners duplicate could prevent the registration of a sale of the MACRO PROPERTY
without it being surrendered to the Register of Deeds as the law requires the production of the owners duplicate
certificate whenever any voluntary instrument is presented for registration (Sec. 53, P.D. No. 1529, the Property
Registration Decree).

"11. On December 7, 1984, Complainant Bank filed a Motion for Reconsideration of the summary judgment.

"12. Without ruling on Complainant Banks Motion for Reconsideration, Respondent Judge, in an Order dated
January 7, 1985, amended paragraph 2 of his Decision, by directing the Register of Deeds of Quezon City

". . . to cancel immediately the registration of the Deed of real estate mortgage dated January 24, 1983 on the back
of TCT No. 261842 pursuant to the aforesaid decision, and to issue in favor of the plaintiff another owners copy of
said transfer certificate of title after said cancellation, in lieu of the copy in the possession of the defendant-bank
which is hereby deemed cancelled.

"The amendment of paragraph 2 ordered the cancellation of the owners duplicate of TCT No. 261842, in the
possession of Complainant Bank, and the issuance of a new owners duplicate of said TCT to MACRO. Thus,
MACRO was placed in a position to dispose of the MACRO PROPERTY.

"13. (a) Seven days thereafter, or on January 14, 1985, MACRO sold the MACRO PROPERTY to Falconi
Marketing and Manufacturing, Inc. (FALCONI, for short) for P6 million.

(b) On January 15, 1985, TCT No. 261842 was cancelled and TCT No. 326740 was issued in the name of
FALCONI.

14. On February 7, 1985, Respondent Judge denied Complainant Banks Motion for Reconsideration not only for
being pro forma but also for lack of merit. Upon receipt of the corresponding Order on February 13, 1985,
Complainant Bank filed a notice of appeal to the Intermediate Appellate Court.

"15. Consequent to the denial of the Motion for Reconsideration filed by Complainant Bank, Respondent Judge, in
his Order of February 13, 1985 considered his Decision in the RTC CASE to be final and ordered the issuance of a
Writ of Execution, which also constituted a denial of Complainant Banks appeal.

"16. (a) On February 18, 1985, Complainant Bank came to this Court on Mandamus/Certiorari (G.R. No. 69907),
asking that Respondent Judge be ordered to allow its appeal from the Decision rendered in the RTC CASE to the
Intermediate Appellate Court and to annul the Order and Writ of Execution he had previously issued.

(b) Probably because of the Order of this Court restraining execution of the Decision in the RTC CASE, Respondent
Judge, on March 13, 1985, gave course to the appeal of Complainant Bank to the Intermediate Appellate Court.

"(17) (a) On April 1, 1985, Complainant Bank caused a Notice of Lis Pendens to be annotated on FALCONIs title.

(b) In G.R. No. 69907, this Court, on May 31, 1985, set aside the Resolution of January 7, 1985 of Respondent
Judge.

(c) On June 26, 1985, the Acting Register of Deeds of Quezon City denied the request of Complainant Bank,
invoking this Courts resolution in G.R. No. 69907, for the cancellation of TCT No. 326740 in the name of
FALCONI.
(d) Sometime in June, 1985, FALCONI instituted a Complaint against Complainant Bank and the Register of Deeds
of Quezon City for the cancellation of the Notice of Lis Pendens on its TCT No. 326740, which case is pending
before the Regional Trial Court of Quezon City, Branch LXXXVI.

(e) On September 23, 1985, this Court in G.R. No. 69907, ordered the Register of Deeds (i) to cancel the new
owners DUPLICATE OF TCT No. 261842; (ii) to restore the old TCT No. 261842, with the annotated mortgage
lien in favor of Complainant Bank; and (iii) to cancel TCT No. 326740 in the name of FALCONI.

"Nothing in this Resolution should be construed as a determination of a factual issue in the controversy between
Complainant Bank and MACRO in the RTC CASE, which is now pending before the Intermediate Appellate Court.
This Resolution deals only with the steps taken by Respondent Judge in regards to the RTC CASE when he was still
acting on it. Considered in the light of the facts related above, we find he had committed serious and grave
misfeasance in connection with his actuations in the said RTC CASE in that:chanrob1es virtual 1aw library

(a) In both original and amended Complaints in the RTC CASE, it was apparent that MACRO was suing for an
amount of at least P50 million. On the very date of August 6, 1984 when the Amended Complaint was filed, which
was only four days after the original Complaint was instituted, Respondent Judge was already aware, per his Order
of attachment, that MACRO "in its verified complaint and affidavit," was asking defendants "to pay the sum of
P50,000,000.00 as actual and compensatory damages which plaintiff seeks to recover from defendant in this
case."cralaw virtua1aw library

"In the original and amended Complaints, the prayers did not ask for damages specifically in the sum of more than
P50 million, clearly in order to avoid payment of filing fees of more than P100,000.00. The filing fee actually paid
was only P210.00.

"Ordinarily, a Trial Judge may be excused from immediately noting a mistake made by the Clerk of Court in
assessing filing fees. However, considering Respondent Judges realization of the mistake, on August 6, 1984, the
date he issued his Order for preliminary attachment, and his actuations thereafter in the RTC CASE, his failure to
require payment of the correct amount of filing fees indicated his partiality towards, not to say confabulation with,
MACRO and/or its lawyers.

(b) The summary judgment was ill-conceived. For one thing, the Amended Complaint had charged Complainant
Bank with fraud and deceit. Under the law, good faith is to be presumed, and the fraud and deceit imputed to
Complainant Bank cannot be other than a question of fact, which should have been resolved after due reception of
evidence pro and contra. There was nothing in the Answer, and in its pleadings in connection with MACROs
Motion for summary judgment which could indubitably be deemed an admission, or proof, of Complainant Banks
alleged fraud and deceit. Respondent Judges statements to the contrary are bereft of veracity.

"Worse errors have been committed by Trial Judges but, in the RTC CASE, the erroneous promulgation of the
summary judgment indicates, in the light of the entire scenario, that the error was deliberate in order to favor
plaintiff, or that it was in actual confabulation with plaintiff and its lawyers.

(c) The issuance of the summary judgment was bad enough. The grant therein of damages in the amount of more
than P33 million, plus 20% attorneys fees, when the property involved in the litigation was alleged in the amended
complaint (Annex "F") as P20 million (sold to FALCONI for P6 million) immediately raises the thought that
Respondent Judge had really taken a stand of partiality in favor of MACRO and its lawyers.

(d) The Order of January 7, 1985 of Respondent Judge also shows his partiality to, or his confabulation with
MACRO and the latters lawyers.

"The summary judgment was rendered on November 16, 1984, and notice thereof was served on Complainant Bank
on November 26, 1984. The latter filed a Motion for Reconsideration on December 6, 1984. If, as Respondent Judge
has ruled, the Motion for Reconsideration was pro forma, the summary judgment became final on December 11,
1984. Respondent Judge, therefore, would no longer have authority to amend his Decision on January 7, 1985.
When the Motion for Reconsideration was denied on February 7, 1985, Respondent Judge should also have set aside
his Order of January 7, 1985 amending the summary judgment. It can now become clear that deferment of action on
Complainant Banks Motion for Reconsideration was precisely for the purpose of allowing amendment of the
Decision on January 7, 1986.

"The Order of January 7, 1985 was set aside in G.R. No. 69907. It is now for us to state herein that Respondent
Judge, in issuing such Order, clearly intended to favor MACRO by allowing it to sell, as it did sell, the MACRO
property to FALCONI on January 14, 1985.

(e) Respondent Judge, in his Order of March 13, 1985, gave course to the appeal of Complainant Bank although he
had already ruled that the latter had lost the right of appeal. That Order of March 13, 1985 was issued after
Complainant Bank had instituted G.R. No. 69907 on February 19, 1985, asking that Respondent Judge be ordered to
allow its appeal from the summary judgment. The Order of March 13, 1985 was clearly intended to render G.R. No.
69907 moot and academic. Said Order was disrespectful of this Court. If at all, Respondent Judge should have come
to this Court in said G.R. No. 69907, to ask for leave to allow the appeal of Complainant Bank with admission that
he had realized that his previous denial of the appeal was erroneous. And it may be recalled that, in De Leon v.
Castro, 104 SCRA 241 (1981), this Court had occasion to state that Respondent Judges submission of false
certificate of service under Section 5 of the Judiciary Law is not excusable.
"WHEREFORE, the Court RESOLVES:jgc:chanrobles.com.ph

"1. Respondent Judge is hereby ordered dismissed from the service, with forfeiture of all retirement benefits and pay
and which prejudice to reinstatement in any branch of the government or any of its agencies or instrumentalities.
This decision is immediately executory.

"2. The Complaint for disbarment and suspension of respondent Atty. Benjamin M. Grecia is hereby referred to the
Solicitor General for investigation, report and recommendation. Let the relevant pleadings in this case in regards to
Respondent GRECIA, and relevant pleadings as well as the Decision in G.R. No. 69907 be furnished the Solicitor
General for the purpose. "SO ORDERED." 2

Pursuant to paragraph 2 of the dispositive portion of the Decision above-quoted, the Disbarment Case was referred
to the Solicitor General for investigation, report and recommendation.

On March 4, 1987, this Court received the Solicitor Generals Report recommending:jgc:chanrobles.com.ph

"WHEREFORE, for lack of evidence, it is respectfully recommended that the disbarment case against respondent be
dismissed."cralaw virtua1aw library

The recommendation of dismissal was predicated on the principal findings 1) that complainant failed to prove with
preponderant evidence that Respondent Grecia and Judge Castro had an existing "unholy alliance or joint venture"
in disposing of the Macro Case in favor of MACRO; 2) that based on the pleadings submitted by complainant "it
cannot be definitely established that any deliberate misrepresentation was committed much less who, specifically,
had perpetrated it" since "the motion for summary judgment and the amended complaint involved were filed by two
collaborating lawyers, namely, respondent and Atty. Mario Valderrama," who however, has not been charged "for
unknown reasons;" and (3) "on the matter of the non-payment of the correct amount of filing fees, no evidence was
presented by complainant to prove that respondent was responsible for such omission or for that matter that he did
not encourage and compel his client to pay the right amount."cralaw virtua1aw library

The Court resolves differently, however (Sec. 4, Rule 139). As pointed out in the Per Curiam Decision of this Court
against respondent Judge, partiality and confabulation are clearly discernible from the actuations of respondents in
the Macro Case.chanrobles law library : red

In the original Complaint filed on August 2, 1984 by Atty. Valderrama and in the Amended Complaint filed on
August 6, 1984 over the signature of Respondent Grecia in the Macro Case, the prayers were silent as to the amount
of damages being demanded, clearly in order to avoid payment of filing fees of approximately P139,000.00. The
filing fee actually paid was only in the amount of P210.00. Complainant Bank filed a Motion for the collection of
the proper filing fees but Respondent Judge denied the same only on November 19, 1984 after the summary
judgment had been rendered on November 16, 1984 and despite the three Motions to Resolve filed by Complainant
Bank on August 17, October 26, and September 3, all in 1984. 3 The reason for the denial was that the certification
of the Clerk of Court as to the correct amount of the docket fee to be paid by plaintiff was not submitted and for
"lack of merit and for being moot and academic." 4

Respondent Grecia filed the Amended Complaint on August 6, 1984, and on the same day Respondent Judge issued
an Order of Attachment. A P10M bond had to be posted by Complainant Bank to discharge it accompanied by a
Motion to Discharge Attachment, which Respondent Judge, resolved on August 21, 1984.

The summary judgment was rendered by Respondent Judge on November 16, 1984 despite the allegation of fraud
and deceit in the Complaint, thereby resulting in the avoidance of trial and the presentation of witnesses, and the
Bank was ordered to pay P30M as actual damages, P3M as exemplary damages plus 20% attorneys fees when the
property involved in the litigation was alleged in the Amended Complaint as P20M (and was sold to Falconi for
P6M).

Complainant Bank filed a Motion for Reconsideration of the Decision on December 7, 1984 but Respondent Judge
did not rule on it and instead amended that judgment on January 7, 1985 by directing the Register of Deeds of
Quezon City to issue another owners copy of the transfer certificate of title in MACROs favor in lieu of the
owners copy in the possession of Complainant Bank, which was deemed cancelled. Thereby MACRO was placed
in a position to dispose of the mortgaged property, which it sold on January 14, 1985 to Falconi Marketing and
Manufacturing, Inc., for P6M.

Respondent Judge denied the Motion for Reconsideration only on February 7, 1985 for being pro forma.
Complainant Bank filed a Notice of Appeal on February 13, 1985. On the same day, February 13, 1985, Respondent
Judge considered the Summary Judgment final and ordered the issuance of a Writ of Execution notwithstanding the
timely notice of appeal filed by Complainant Bank.

Execution was implemented two (2) days thereafter, or on February 15, 1985 at 3:55 P.M., with Respondent Grecia
included in the group, which went to the Bank premises to enforce execution, leaving said place" at past midnight.

With the issuance of the Writ of Execution, which also constituted the denial of the appeal, Respondent Judge had
foreclosed Complainant Banks right to appeal had it not been for the Decision of this Court in G.R. No. 69907
promulgated on May 31, 1985 entitled "Prudential Bank, Et. Al. v. Hon. Jose P. Castro, Macro Textile Mills
Corporation, Et Al.," ordering Respondent Judge to give due course to the appeal.

Respondents foregoing actuations reveal an "unholy alliance" between them and a clear indication of partiality for
the party represented by the other to the detriment of the objective dispensation of justice. Writs of Attachment and
Execution were issued and implemented with lightning speed; the case itself was railroaded to a swift conclusion
through a summary judgment: astronomical sums were awarded as damages and attorneys fees; and topping it all,
the right to appeal was foreclosed by clever maneuvers.chanrobles virtualawlibrary
chanrobles.com:chanrobles.com.ph

The Court also takes judicial notice of a strikingly similar modus operandi followed in "Manchester Development
Corporation, Et Al., v. Court of Appeals, Cityland Development Corporation, et als., (G.R. No. 75919, May 7, 1987;
Civil Case No. Q-43867, RTC Quezon City), where the original complaint was filed by the same Atty. Mario E.
Valderrama and was originally pending before Respondent Judges Sala. Thus - the staggering sum claimed in the
Complaint of about P78M but the clear attempt to limit the filing fees to P410.00 by the simple expedient of limiting
the prayer to such sums of money as "may be duly proved during the trial;" the fraud alleged in the complaint; the
issuance of a writ of attachment by Respondent Judge the day after the filing of the Complaint after the approval of a
P10M bond issued by Stronghold Insurance Co., a company blacklisted in Quezon City; the immediate
implementation of the attachment the day after its issuance with the garnishment of the operating funds of Cityland,
and the denial by Respondent Judge of the Motion to Strike Out Complaint filed by Cityland for the reasons that the
insufficiency of the filing fee is not a ground for dismissal citing Magaspi v. Ramolete (115 SCRA 193) and that the
action was one for specific performance. If respondent Judge was unable to see the case to completion, and perhaps
resolve it in the same manner as he did the Macro Case, it was only by reason of the re-raffle ordered by this Court
of that case, with 22 others, to all the Regional Trial Court Judges of Quezon City, "with the exception of
Respondent Judge," in this Courts Resolution of June 18, 1985 in Adm. Matter No. 85-6-7899-RTC.

While it was Atty. Valderrama, who was counsel of record in the Manchester case, considering the striking similarity
in the pattern of the cases he and Respondent Grecia handled, signing either singly or as co-counsel (as in the
Amended Complaint, 5 and in the Opposition to Defendants Motion for Reconsideration in the Macro Case), 6 a
close collaboration between them is evident. In actual fact, a joint venture did exist between Macro and Manchester
known as the Macro-Manchester Realty Corporation. 7

The Court takes further judicial notice of other cases where a similar modus operandi, particularly in respect of
astronomical sums claimed but minimal docket fees paid, is apparent, with one of the parties represented by either
Respondent Grecia or Atty. Valderrama, and the common denominator being that the cases pended before
Respondent Judge. A summary of those cases was made in a Report, dated October 2, 1985, to the Acting Court
Administrator Arturo Buena submitted by then Executive Judge Ernani Cruz Pao in Case No. AM 85-10-8752-RTC
as a consequence of a letter-complaint of Atty. Antonio Bautista in connection with the Manchester case.

Thus, in Civil Case No. Q-35093, RTC, Quezon City, entitled "Ocean Park Development Corporation v. Kumho
Construction & Engineering, Inc.," which was also pending before Respondent Judge, with counsel for plaintiff
therein being Respondent Grecia, for "Trespass or Destruction, Illegal Occupation of Real Property with Damages
and Writ of Attachment and Injunction," the body of the complaint alleged that defendant therein had inflicted
damages on the plaintiff in the total sum of approximately P13M, but the prayer merely asked for payment of" such
sums as may be proved during the trial." The filing fee paid was P200.00.chanrobles law library

In Civil Case No. Q-41177, RTC, Quezon City, entitled "Manuel Chua Uy Po Tiong v. Sun Insurance Office Ltd."
(incidentally, the President of Manchester is the same Manuel Chua Uy Po Tiong) for "Sum of Money, Damages
with Writ of Preliminary Attachment" for alleged fraudulent cancellation of an insurance policy issued by defendant
therein, the body of the complaint mentioned the damages suffered by plaintiff in the amount of around P30M, but
again the prayer asked for the payment of "such amounts as may be proved during the trial" and the filing fee paid
was P200.00. The original complaint was filed by Atty. Valderrama while Respondent Grecia filed the Amended
Complaint therein. The case was before Respondent Judges Sala.

In Civil Case No. Q-41229, RTC, Quezon City, entitled "Kumho Construction & Engineering, Inc. v. Atty. Vicente
E. del Rosario" the body of the complaint claimed damages in the sum of P3M but, true to form, the prayer asked for
"such sums as may be proved during the trial" and the filing fee paid was P200.00. Counsel for Kumho was Atty.
Mario E. Valderrama; the Court before which the case was pending was that of Respondent Judge, who, by the way,
also rendered a summary judgment therein.

The modus operandi in the foregoing cases, taken cognizance of by this Court either judicially or administratively,
reveal the hidden maneuvers of a nefarious network, with respondents as the prime movers. Those cases sufficiently
provide the basis for the determination of respondents administrative liability without need for further inquiry into
the matter under the principle of res ipsa loquitur. (People v. Hon. Manuel Valenzuela, G.R. Nos. L-63950-60, April
19, 1985, 135 SCRA 712; Resolution, In The Matter Of Proceedings For Disciplinary Action Against Atty.
Wenceslao Laureta, etc., in G.R. No. 68635, entitled "Eva Maravilla-Ilustre v. Hon. Intermediate Appellate Court, Et
Al.," May 14, 1987). The imposition of disciplinary sanctions against respondents is warranted as we were already
constrained to do in respect of Respondent Judge. Their questionable operations have blotted the image of both
Bench and Bar and have been inimical to public interest and welfare. Their unethical misdeeds call for the supreme
sanction. Indeed, those actuations would have passed unnoticed but for this Administrative Complaint filed by a
highly respected member of the business community, and the disclosure by concerned colleagues in the profession
appalled by respondents anomalous actuations in a string of cases.

Respondent Grecia has been proven to be lacking in fidelity to his oath of office essential to his continuance as an
attorney-at-law.

The affirmance on April 23, 1986 by the Court of Appeals in AC-G.R. CV No. 05611 ** of the Summary Judgment
rendered by Respondent Judge in the Macro Case, for which reason, Respondent Grecia had moved to dismiss this
case against him on May 8, 1986 is not a ground for the dismissal of this Disbarment Case, the said Decision not
having attained finality besides the fact that the issue herein is the fitness of Respondent Grecia to continue in the
practice of law.

WHEREFORE, respondent Benjamin M. Grecia is hereby DISBARRED for having proven himself unfit to continue
in the pursuit of the profession.

SO ORDERED.

A.C. No. 2756. June 27, 1988

PRUDENTIAL BANK, Complainant, v. JUDGE JOSE P. CASTRO and ATTY. BENJAMIN M.

GRECIA, Respondents.

Acting on the letter-appeal, dated June 6, 1988, filed on behalf of respondent Judge by his children, seeking
clarification of the stage, the Court RESOLVED, out of humanitarian considerations, and following the precedent in
Cathay Pacific Decision of June 5, 1986, on whether or not the Order of this Court forfeiting all of said Judges
retirement benefits and pay "exclude the monetary value of his accumulated leave credits which he earned during his
thirty six (36) years of service in the government, the last eleven (11) years of which were spent in the Judiciary,"
and praying that the same be so excluded considering their need for funds for the continuing medication of
respondent Judge, now afflicted with liver cancer on its terminal Airways, Ltd. v. Hon. Romillo, Jr., 143 SCRA 396
[1986]), to AMEND the first paragraph of the dispositive portion of its Decision of June 5, 1986, to read as
follows:jgc:chanrobles.com.ph
"WHEREFORE, the Court RESOLVES:jgc:chanrobles.com.ph

"1. Respondent Judge is hereby ordered dismissed from the service, with forfeiture of all retirement benefits and pay
and with prejudice to reinstatement in any branch of the government or any of its agencies or instrumentalities. He
may, however, enjoy all vacation and sick leave benefits that he has earned during the period of his government
service. This decision is immediately executory." (Revision italicized)chanrobles virtual lawlibrary

A.C. No. 2655. July 9, 1987

In re: Complaint against ATTY. PATRICIO A. ASOY, LEONARD W. RICHARDS, Complainant, v. ATTY.
PATRICIO A. ASOY, Respondent.

1. LEGAL ETHICS; ATTORNEYS; ADMINISTRATIVE COMPLAINT FOR PROFESSIONAL MISCONDUCT;

PRINCIPLE OF RES IPSA LOQUITOR APPLIED IN CASE AT BAR. In a Complaint formalized by the Bar
Confident on April 29, 1986, pursuant to the Resolution of this Court, dated February 10, 1986, Respondent Atty.
Patricio A. Asoy as retained counsel of Complainant, Leonard W. Richards, an Australian, was charged with
Malpractice for non-attendance at Court hearings, negligence and lack of zeal in prosecuting a civil case for
damages, resulting in its dismissal for lack of interest and/or failure to prosecute. The facts, as disclosed, require no
further evidentiary hearing, and speak for themselves. Res ipsa loquitur. The Orders of the Trial Court dismissing
Civil Case No. 181-P are of record and Respondents excuse that he can no longer recall them is feeble.

2. CONSTITUTIONAL LAW; DUE PROCESS; REQUIREMENT GIVEN SATISFIED BY RESPONDENT;

OPPORTUNITY TO BE HEARD. Respondents side has been fully heard in the pleadings he has filed before
this Court. A trial-type hearing is not de riqueur. The requirement of due process has been duly satisfied. What due
process abhors is absolute lack of opportunity to be heard.

3. LEGAL ETHICS; ATTORNEYS; ADMINISTRATIVE COMPLAINT FOR PROFESSIONAL MISCONDUCT;

LACK OF VERIFICATION, NOT FATAL. Contrary to Respondents claim, the lack of verification in the
Complaint formulated by the Bar Confidant, as required by Sec. 1, Rule 139 of the Rules of Court, is not a fatal
defect since the original letter-complaint, which was forwarded to this Court by the Chief Legal Officer, Ministry of
Tourism, had been sworn and subscribed to by Complainant before the Bar Confidant.

4. ID.; ID.; ABANDONEMENT OF CLIENTS CASE CONSTITUTES GRAVE PROFESSIONAL

MISCONDUCT; PENALTY. Respondent is guilty of grave professional misconduct. He received from
Complainant, his client, compensation to handle his case in the Trial Court, but the same was dismissed for lack of
interest and failure to prosecute. He had abandoned his client in violation of his contract ignoring the most
elementary principles of professional ethics. 8 That Respondent had ignored the processes of this Court and it was
only after he was suspended from the practice of law that he surfaced, is highly indicative of his disregard of an
attorneys duties to the Court. All the facts and circumstances taken into consideration, Respondent has proven
himself unworthy of the trust reposed in him by law as an officer of the Court. "Consistent with the policy to
maintain the high traditions and standards of the legal profession, insure the observance of legal ethics, protect the
interests of clients and help keep their faith in attorneys-at-law, the Supreme Court is constrained to disbar a member
of the bar who violates his lawyers oath for failure to properly attend to a clients case not only once, but on two
occasions, with results highly prejudicial to the interest of the latter." Accordingly, for malpractice and violation of
his oath as a lawyer respondent Atty. Patricio A. Asoy is hereby ordered disbarred.

5. CIVIL LAW; DAMAGES; A CLIENT MAY RECOVER DAMAGES FROM ATTORNEYS NEGLIGENCE;
CASE AT BAR. Furthermore, since Complainants rights as Respondents client have been prejudiced by the
latters failure to take the steps necessary for the prosecution of the case Complainant may recover as a result of
such gross negligence and grave professional misconduct. Respondent is ordered to reimburse complainant, Leonard
W. Richards, in the sum of P16,300.00 (P15,000.00 + P1,300.00). the only sums substantiated by the evidence on
record, within thirty (30) days from notice.

R ES OLUTION
In a Complaint formalized by the Bar Confident on April 29, 1986, pursuant to the Resolution of this Court,
dated February 10, 1986, Respondent Atty. Patricio A. Asoy as retained counsel of Complainant, Leonard W.
Richards, an Australian, was charged with Malpractice for non-attendance at Court hearings, negligence and lack of
zeal in prosecuting a civil case for damages, resulting in its dismissal for lack of interest and/or failure to prosecute.

Prior to the aforesaid formal Complaint, Leonard W. Richards had filed a letter-complaint on June 29, 1984
with the Chief Legal Officer, Tourist Division, Department of Tourism followed up with another letter dated July 13,
1984 to the Chief Justice denouncing Respondents actuations.

Required to comment in a Resolution, dated August 8, 1984, Respondent failed to do so despite service of
the Resolution together with a copy of the letter-complaint. The Court (First Division) required Respondent to show
cause why he should not be disciplinary dealt with or held in contempt for such failure, but all efforts to serve copy
of the show-cause Resolution on Respondent at his six (6) available addresses as well as through the national and the
Tacloban Chapters of the Integrated Bar of the Philippines proved futile. Since, unquestionably, respondent had gone
into hiding and was evading service of pleadings/orders/processes of this Court, we suspended him from the practice
of law in a Resolution dated November 11, 1985. Copies of the Resolution were circularized to all Courts
nationwide with the directive that should Respondent appear before any lower Court, the latter shall serve upon him
a copy of the show-cause Resolution and require him to appear within five (5) days thereafter before the Deputy
Clerk of Court and Bar Confidant.

Flushed out, on December 2, 1985, Respondent filed a Manifestation/Motion for Reconsideration

"submitting himself voluntarily to the jurisdiction of the Court," denying any violation of his oath as an attorney,
which would warrant his suspension, and praying that in the interest of due process and on broader grounds of
substantial justice, the order of suspension be lifted and that he be excused from appearing before the Bar Confidant
by reason of distance and financial constraints. Respondent gave his address as "Room 302 Abalos Bldg., Aguinaldo
St., Iligan City."cralaw virtua1aw library

In a resolution dated February 10, 1986, the Court denied the lifting of the order of suspension but excused
Respondent from appearing before the Deputy Clerk of Court and Bar Confidant. In the same Resolution, and as
stated initially, the Bar Confidant was directed to formulate the administrative complaint and respondent to answer
the same within five (5) days from receipt of notice.chanrobles law library

The background facts disclose that on April 23, 1982, Complainant retained Respondent as counsel in CC
No. 0181-P before the Regional Trial Court, Branch CX, Pasay City, entitled "Spouses Anita M. Richards & Leonard
Richards v. Danilo A. Felindario, Et. Al." It was a suit for damages allegedly due to faulty workmanship and non-
compliance with specifications in the construction of the RICHARDS house and swimming pool at Johann Menzi
St., Phase III, BF Homes, Paraaque, Metro Manila.

Among the terms and conditions in their contract for legal services were the payment by Complainant to
Respondent of an acceptance fee of Fifteen Thousand Pesos (P15,000.00) payable upon the signing of the
agreement, and a fee of P300.00 for each Court appearance. The acceptance fee was fully paid by Complainant on
April 30, 1982, the initial payment having been made on April 26, 1982. 1 On October 21, 1982, 2 Complainant and
his family left permanently for Australia after selling their house to a third party.

On June 20, 1983, Civil Case No. 0181-P was dismissed by the Trial Court without prejudice "for lack of
interest on the part of plaintiffs as shown by the absence of their counsel despite due notice." 3

On August 15, 1983, the case was reinstated after the reconsideration sought by Respondent on July 13,
1983 was granted by the Trial Court. According to Complainant, reconsideration must have been sought by
Respondent only because in Complainants letter, dated June 7, 1983, he had already sought the assistance of Major
Fred de Vera of the Bureau of Tourism Services regarding his complaint against Respondent.

In an Order dated October 20, 1983, the Trial Court again dismissed the case for "lack of interest and/or
failure to prosecute," "it appearing that plaintiffs counsel was duly notified as indicated by his signature appearing
on the record, it appearing further that notwithstanding said notice, said counsel for the plaintiffs is not in Court
today." The Trial Court further observed that "this is the second time that this case was dismissed for failure of
plaintiffs counsel to appear despite notice." 4

In his Answer, Respondent states that he was delayed in filing the same as he had to temporarily reside and
hold office at Tubod, Lanao del Norte, by reason of his temporary appointment as Provincial Administrator of Lanao
del Norte effective March 11, 1986; that his inability to prosecute the case was because Complainant left for
Australia without furnishing Respondent his address and that he was unable to shoulder the burden of paying the
fees required for the services of expert witnesses besides the fact that his daughter was stricken with cerebral palsy;
that he had no intention to delay Complainant for money, that the Administrative Complaint does not comply with
the requirements of Section 1, Rule 139 of the Rules of Court; and that he was deprived of due process of law
inasmuch as Section 30, Rule 138 of the Rules of Court requires that an attorney be heard before he is removed or
suspended. Respondent then prayed that, pending investigation, his suspension be lifted and that after due hearing
the Complaint be dismissed and Complainant held liable for payment of all damages suffered by Respondent during
the investigation of this case.
 In his letter-reply, dated February 13, 1987, addressed to the First Division Clerk of Court, Complainant
stated that he had paid P15,000.00 to Respondent 5 to handle the case for him conditioned upon Respondents
prosecuting the case to completion, attending all scheduled hearings and keeping Complainant posted on the
progress of the case; that at the time he engaged Respondents services, the latter was the Manager of Personnel and
Legal Affairs of Asia International Builders Corporation in Makati, which had connections with an Australian
counterpart in Melbourne; that he had paid Civil Engineer Mendoza P5,000.00 for the inspection of the house and
that the latter was to be the only expert witness so that Respondents excuse that he (Respondent) had no funds with
which to pay for expert witnesses is "entirely untrue" ; that he paid an additional P1,300.00 to Respondent for other
expenses like filing fee and other miscellaneous items 6 and that his total expenses relevant to the case aggregate
P34,300.00; that he had informed Respondent of his address in Australia in letters dated November 26, 1982,
February 1, 1983 and June 5, 1983; that Respondent has the financial means to reimburse Complainant considering
his present and former position; and that he is prepared to withdraw his complaint if reimbursed by Respondent in
the amount of P34,300.00.chanrobles law library : red

The facts, as disclosed, require no further evidentiary hearing, and speak for themselves. Res ipsa loquitur.
The Orders of the Trial Court dismissing Civil Case No. 181-P are of record and Respondents excuse that he can no
longer recall them is feeble. Respondents side has been fully heard in the pleadings he has filed before this Court. A
trial-type hearing is not de riqueur. The requirement of due process has been duly satisfied. What due process abhors
is absolute lack of opportunity to be heard. 7

Contrary to Respondents claim, the lack of verification in the Complaint formulated by the Bar Confidant,
as required by Sec. 1, Rule 139 of the Rules of Court, is not a fatal defect since the original letter-complaint, which
was forwarded to this Court by the Chief Legal Officer, Ministry of Tourism, had been sworn and subscribed to by
Complainant before the Bar Confidant.

Respondent is guilty of grave professional misconduct. He received from Complainant, his client,
compensation to handle his case in the Trial Court, but the same was dismissed for lack of interest and failure to
prosecute. He had abandoned his client in violation of his contract ignoring the most elementary principles of
professional ethics. 8 That Respondent had ignored the processes of this Court and it was only after he was
suspended from the practice of law that he surfaced, is highly indicative of his disregard of an attorneys duties to
the Court. All the facts and circumstances taken into consideration, Respondent has proven himself unworthy of the
trust reposed in him by law as an officer of the Court.

"Consistent with the policy to maintain the high traditions and standards of the legal profession, insure the
observance of legal ethics, protect the interests of clients and help keep their faith in attorneys-at-law, the Supreme
Court is constrained to disbar a member of the bar who violates his lawyers oath for failure to properly attend to a
clients case not only once, but on two occasions, with results highly prejudicial to the interest of the latter." 9

Furthermore, since Complainants rights as Respondents client have been prejudiced by the latters failure
to take the steps necessary for the prosecution of the case Complainant may recover as a result of such gross
negligence and grave professional misconduct. 10

"If a judgment is obtained against a party upon a complaint which is radically defective, and he desires to
appeal, and procures bondsmen, but his attorney neglects to do so until the time for appeal expires, the attorney is
guilty of gross negligence, and is liable for the loss sustained by the client." 11

ACCORDINGLY, for malpractice and violation of his oath as a lawyer, 1) respondent Atty. Patricio A.
Asoy is hereby ordered DISBARRED; and 2) he is hereby ordered to reimburse complainant, Leonard W. Richards,
in the sum of P16,300.00 (P15,000.00 + P1,300.00), the only sums substantiated by the evidence on record, 12
within thirty (30) days from notice hereof.

Copies of this Resolution shall be circulated to all Courts of the country and spread on the personal record
of respondent Atty. Patricio A. Asoy.

Copy of this Resolution shall likewise be furnished Complainant Leonard W. Richards, via airmail, at his
address of record, 4/169 Avoca Street, Randwick NSW 2031, Australia, with copy furnished the Department of
Foreign Affairs for onward transmittal to the Philippine Consulate General, Sydney, Australia.

G.R. No. 187926

DR. EMMANUEL JARCIA, JR. and DR. MARILOU BASTAN VS .PEOPLE OF THE PHILIPPINES,

Even early on, patients have consigned their lives to the skill of their doctors. Time and again, it can be said that the
most important goal of the medical profession is the preservation of life and health of the people. Corollarily, when
a physician departs from his sacred duty and endangers instead the life of his patient, he must be made liable for the
resulting injury. This Court, as this case would show, cannot and will not let the act go unpunished. [1]
This is a petition for review under Rule 45 of the Rules of Court challenging the August 29, 2008
Decision[2] of the Court of Appeals (CA), and its May 19, 2009 Resolution[3] in CA-G.R. CR No. 29559, dismissing
the appeal and affirming in toto the June 14, 2005 Decision [4] of the Regional Trial Court, Branch 43, Manila (RTC),
finding the accused guilty beyond reasonable doubt of simple imprudence resulting to serious physical injuries.
THE FACTS

Belinda Santiago (Mrs. Santiago) lodged a complaint with the National Bureau of Investigation (NBI) against the
petitioners, Dr. Emmanuel Jarcia, Jr. (Dr. Jarcia) and Dr. Marilou Bastan (Dr. Bastan), for their alleged neglect of
professional duty which caused her son, Roy Alfonso Santiago (Roy Jr.), to suffer serious physical injuries. Upon
investigation, the NBI found that Roy Jr. was hit by a taxicab; that he was rushed to the Manila Doctors Hospital for
an emergency medical treatment; that an X-ray of the victims ankle was ordered; that the X-ray result showed no
fracture as read by Dr. Jarcia; that Dr. Bastan entered the emergency room (ER) and, after conducting her own
examination of the victim, informed Mrs. Santiago that since it was only the ankle that was hit, there was no need to
examine the upper leg; that eleven (11) days later, Roy Jr. developed fever, swelling of the right leg and
misalignment of the right foot; that Mrs. Santiago brought him back to the hospital; and that the X-ray revealed a
right mid-tibial fracture and a linear hairline fracture in the shaft of the bone.

The NBI indorsed the matter to the Office of the City Prosecutor of Manila for preliminary
investigation. Probable cause was found and a criminal case for reckless imprudence resulting to serious physical
injuries, was filed against Dr. Jarcia, Dr. Bastan and Dr. Pamittan, [5] before the RTC, docketed as Criminal Case No.
01-196646.

On June 14, 2005, the RTC found the petitioners guilty beyond reasonable doubt of the crime
of Simple Imprudence Resulting to Serious Physical Injuries. The decretal portion of the RTC decision reads:

WHEREFORE, premises considered, the Court finds accused DR. EMMANUEL

JARCIA, JR. and DR. MARILOU BASTAN GUILTY beyond reasonable doubt of the crime of
SIMPLE IMPRUDENCE RESULTING TO SERIOUS PHYSICAL INJURIES and are hereby
sentenced to suffer the penalty of ONE (1) MONTH and ONE (1) DAY to TWO (2)
MONTHS and to indemnify MRS. BELINDA SANTIAGO the amount of 3,850.00 representing
medical expenses without subsidiary imprisonment in case of insolvency and to pay the costs.

It appearing that Dr. Pamittan has not been apprehended nor voluntarily surrendered
despite warrant issued for her arrest, let warrant be issued for her arrest and the case against her be
ARCHIVED, to be reinstated upon her apprehension. SO ORDERED.[6]

The RTC explained:

After a thorough and in depth evaluation of the evidence adduced by the prosecution and the defense,
this court finds that the evidence of the prosecution is the more credible, concrete and sufficient to create that
moral certainty in the mind of the Court that accused herein [are] criminally responsible. The Court believes
that accused are negligent when both failed to exercise the necessary and reasonable prudence in ascertaining
the extent of injury of Alfonso Santiago, Jr.

However, the negligence exhibited by the two doctors does not approximate negligence of a
reckless nature but merely amounts to simple imprudence. Simple imprudence consists in the lack
of precaution displayed in those cases in which the damage impending to be caused is not the
immediate nor the danger clearly manifest. The elements of simple imprudence are as follows.

1. that there is lack of precaution on the part of the offender; and

2. that the damage impending to be caused is not immediate of the danger is

not clearly manifest.

Considering all the evidence on record, The Court finds the accused guilty for simple
imprudence resulting to physical injuries. Under Article 365 of the Revised Penal Code, the
penalty provided for is arresto mayor in its minimum period.[7]

Dissatisfied, the petitioners appealed to the CA.

As earlier stated, the CA affirmed the RTC decision in toto. The August 29, 2008 Decision of the CA
pertinently reads:

This Court holds concurrently and finds the foregoing circumstances sufficient to sustain
a judgment of conviction against the accused-appellants for the crime of simple imprudence
resulting in serious physical injuries. The elements of imprudence are: (1) that the offender does or
fails to do an act; (2) that the doing or the failure to do that act is voluntary; (3) that it be without
malice; (4) that material damage results from the imprudence; and (5) that there is inexcusable
lack of precaution on the part of the offender, taking into consideration his employment or
occupation, degree of intelligence, physical condition, and other circumstances regarding persons,
time and place.

Whether or not Dr. Jarcia and Dr. Bastan had committed an inexcusable lack of precaution in the
treatment of their patient is to be determined according to the standard of care observed by other
members of the profession in good standing under similar circumstances, bearing in mind the
advanced state of the profession at the time of treatment or the present state of medical science. In
the case of Leonila Garcia-Rueda v. Pascasio, the Supreme Court stated that, in accepting a case, a
doctor in effect represents that, having the needed training and skill possessed by physicians and
surgeons practicing in the same field, he will employ such training, care and skill in the treatment
of his patients. He therefore has a duty to use at least the same level of care that any other
reasonably competent doctor would use to treat a condition under the same circumstances.

In litigations involving medical negligence, the plaintiff has the burden of establishing accused-
appellants negligence, and for a reasonable conclusion of negligence, there must be proof of
breach of duty on the part of the physician as well as a causal connection of such breach and the
resulting injury of his patient.The connection between the negligence and the injury must be a
direct and natural sequence of events, unbroken by intervening efficient causes. In other words,
the negligence must be the proximate cause of the injury. Negligence, no matter in what it
consists, cannot create a right of action unless it is the proximate cause of the injury complained
of. The proximate cause of an injury is that cause which, in natural and continuous sequence,
unbroken by any efficient intervening cause, produces the injury and without which the result
would not have occurred.

In the case at bench, the accused-appellants questioned the imputation against them and argued
that there is no causal connection between their failure to diagnose the fracture and the injury
sustained by Roy.

We are not convinced.

The prosecution is however after the cause which prolonged the pain and suffering of Roy and not
on the failure of the accused-appellants to correctly diagnose the extent of the injury sustained
by Roy.

For a more logical presentation of the discussion, we shall first consider the applicability of the
doctrine of res ipsa loquitur to the instant case. Res ipsa loquitur is a Latin phrase which literally
means the thing or the transaction speaks for itself. The doctrine of res ipsa loquitur is simply a
recognition of the postulate that, as a matter of common knowledge and experience, the very
nature of certain types of occurrences may justify an inference of negligence on the part of the
person who controls the instrumentality causing the injury in the absence of some explanation by
the accused-appellant who is charged with negligence. It is grounded in the superior logic of
ordinary human experience and, on the basis of such experience or common knowledge,
negligence may be deduced from the mere occurrence of the accident itself. Hence, res ipsa
loquitur is applied in conjunction with the doctrine of common knowledge.

The specific acts of negligence was narrated by Mrs. Santiago who accompanied her son during
the latters ordeal at the hospital. She testified as follows:

Fiscal Formoso:

Q: Now, he is an intern did you not consult the doctors, Dr. Jarcia or Dra.
Pamittan to confirm whether you should go home or not?
A: Dra. Pamittan was inside the cubicle of the nurses and I asked her, you let us
go home and you dont even clean the wounds of my son.

Q: And what did she [tell] you?

A: They told me they will call a resident doctor, sir.

xxxxxxxxx

Q: Was there a resident doctor [who] came?

A: Yes, Sir. Dra. Bastan arrived.
Q: Did you tell her what you want on you to be done?
A: Yes, sir.

Q: What did you [tell] her?

 A: I told her, sir, while she was cleaning the wounds of my son, are you not
going to x-ray up to the knee because my son was complaining pain
from his ankle up to the middle part of the right leg.

Q: And what did she tell you?

A: According to Dra. Bastan, there is no need to x-ray because it was the ankle
part that was run over.

Q: What did you do or tell her?

A: I told her, sir, why is it that they did not examine[x] the whole leg. They just
lifted the pants of my son.

Q: So you mean to say there was no treatment made at all?

A: None, sir.

xxxxxxxxx

A: I just listened to them, sir. And I just asked if I will still return my son.

xxxxxxxxx

Q: And you were present when they were called?

A: Yes, sir.

Q: And what was discussed then by Sis. Retoria?

A: When they were there they admitted that they have mistakes, sir.
Still, before resort to the doctrine may be allowed, the following requisites must be satisfactorily shown:

1. The accident is of a kind which ordinarily does not occur in the absence of
someones negligence;

2. It is caused by an instrumentality within the exclusive control of the

defendant or defendants; and

3. The possibility of contributing conduct which would make the plaintiff

responsible is eliminated.
In the above requisites, the fundamental element is the control of the instrumentality which
caused the damage. Such element of control must be shown to be within the dominion of the
accused-appellants. In order to have the benefit of the rule, a plaintiff, in addition to proving injury
or damage, must show a situation where it is applicable and must establish that the essential
elements of the doctrine were present in a particular incident. The early treatment of the leg
of Roywould have lessen his suffering if not entirely relieve him from the fracture. A boy of tender
age whose leg was hit by a vehicle would engender a well-founded belief that his condition may
worsen without proper medical attention. As junior residents who only practice general surgery
and without specialization with the case consulted before them, they should have referred the
matter to a specialist. This omission alone constitutes simple imprudence on their part. When Mrs.
Santiago insisted on having another x-ray of her child on the upper part of his leg, they refused to
do so. The mother would not have asked them if they had no exclusive control or prerogative to
request an x-ray test. Such is a fact because a radiologist would only conduct the x-ray test upon
request of a physician.

The testimony of Mrs. Santiago was corroborated by a bone specialist Dr. Tacata. He further
testified based on his personal knowledge, and not as an expert, as he examined himself the child
Roy. He testified as follows:

Fiscal Macapagal:

Q: And was that the correct respon[se] to the medical problem that was
presented to Dr. Jarcia and Dra. Bastan?
A: I would say at that stage, yes. Because they have presented the patient and
the history. At sabi nila, nadaanan lang po ito. And then, considering
their year of residency they are still junior residents, and they are not
also orthopedic residents but general surgery residents, its entirely
different thing. Because if you are an orthopedic resident, I am not
trying to saybut if I were an orthopedic resident, there would be more
precise and accurate decision compare to a general surgery resident in
so far as involved.

Q: You mean to say there is no supervisor attending the emergency room?

 A: At the emergency room, at the Manila Doctors Hospital, the supervisor there
is a consultant that usually comes from a family medicine. They see
where a certain patient have to go and then if they cannot manage it,
they refer it to the consultant on duty. Now at that time, I dont [know]
why they dont.Because at that time, I think, it is the decision. Since the
x-rays.

Ordinarily, only physicians and surgeons of skill and experience are competent to testify
as to whether a patient has been treated or operated upon with a reasonable degree of skill and
care. However, testimony as to the statements and acts of physicians, external appearances, and
manifest conditions which are observable by any one may be given by non-expert
witnesses. Hence, in cases where the res ipsa loquitur is applicable, the court is permitted to find a
physician negligent upon proper proof of injury to the patient, without the aid of expert testimony,
where the court from its fund of common knowledge can determine the proper standard of care.
Where common knowledge and experience teach that a resulting injury would not have occurred
to the patient if due care had been exercised, an inference of negligence may be drawn giving rise
to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily
required to show not only what occurred but how and why it occurred. In the case at bench, we
give credence to the testimony of Mrs. Santiago by applying the doctrine of res ipsa loquitur.
Res ipsa loquitur is not a rigid or ordinary doctrine to be perfunctorily used but a rule to be
cautiously applied, depending upon the circumstances of each case. It is generally restricted to
situations in malpractice cases where a layman is able to say, as a matter of common knowledge
and observation, that the consequences of professional care were not as such as would ordinarily
have followed if due care had been exercised. A distinction must be made between the failure to
secure results and the occurrence of something more unusual and not ordinarily found if the
service or treatment rendered followed the usual procedure of those skilled in that particular
practice. The latter circumstance is the primordial issue that confronted this Court and we find
application of the doctrine of res ipsa loquitur to be in order.

WHEREFORE, in view of the foregoing, the appeal in this case is hereby DISMISSED and the
assailed decision of the trial court finding accused-appellants guilty beyond reasonable doubt of
simple imprudence resulting in serious physical injuries is hereby AFFIRMED in toto. SO
ORDERED.[8]

The petitioners filed a motion for reconsideration, but it was denied by the CA in its May 19, 2009 Resolution.
Hence, this petition.

The petitioners pray for the reversal of the decision of both the RTC and the CA anchored on the

following
GROUNDS-

1. IN AFFIRMING ACCUSED-PETITIONERS CONVICTION, THE COURT OF

APPEALS ERRED IN NOT HOLDING THAT THE ACTUAL, DIRECT, IMMEDIATE,
AND PROXIMATE CAUSE OF THE PHYSICAL INJURY OF THE PATIENT
(FRACTURE OF THE LEG BONE OR TIBIA), WHICH REQUIRED MEDICAL
ATTENDANCE FOR MORE THAN THIRTY (30) DAYS AND INCAPACITATED HIM
FROM PERFORMING HIS CUSTOMARY DUTY DURING THE SAME PERIOD OF
TIME, WAS THE VEHICULAR ACCIDENT WHERE THE PATIENTS RIGHT LEG WAS
HIT BY A TAXI, NOT THE FAILURE OF THE ACCUSED-PETITIONERS TO SUBJECT
THE PATIENTS WHOLE LEG TO AN X-RAY EXAMINATION.

2. THE COURT OF APPEALS ERRED IN DISREGARDING ESTABLISHED

FACTS CLEARLY NEGATING PETITIONERS ALLEGED NEGLIGENCE OR
IMPRUDENCE. SIGNIFICANTLY, THE COURT OF APPEALS UNJUSTIFIABLY
DISREGARDED THE OPINION OF THE PROSECUTIONS EXPERT WITNESS, DR.
CIRILO TACATA, THAT PETITIONERS WERE NOT GUILTY OF NEGLIGENCE OR
IMPRUDENCE COMPLAINED OF.

3. THE COURT OF APPEALS ERRED IN HOLDING THAT THE FAILURE OF

PETITIONERS TO SUBJECT THE PATIENTS WHOLE LEG TO AN X-RAY
EXAMINATION PROLONGED THE PAIN AND SUFFERING OF THE PATIENT, SUCH
CONCLUSION BEING UNSUPPORTED BY, AND EVEN CONTRARY TO, THE
EVIDENCE ON RECORD.
 4. ASSUMING ARGUENDO THAT THE PATIENT EXPERIENCED
PROLONGED PAIN AND SUFFERING, THE COURT OF APPEALS ERRED IN NOT
HOLDING THAT THE ALLEGED PAIN AND SUFFERING WERE DUE TO THE
UNJUSTIFIED FAILURE OF THE PATIENTS MOTHER, A NURSE HERSELF, TO
IMMEDIATELY BRING THE PATIENT BACK TO THE HOSPITAL, AS ADVISED BY
THE PETITIONERS, AFTER HE COMPLAINED OF SEVERE PAIN IN HIS RIGHT
LEG WHEN HE REACHED HOME AFTER HE WAS SEEN BY PETITIONERS AT THE
HOSPITAL. THUS, THE PATIENTS ALLEGED INJURY (PROLONGED PAIN AND
SUFFERING) WAS DUE TO HIS OWN MOTHERS ACT OR OMISSION.

5. THE COURT OF APPEALS ERRED IN NOT HOLDING THAT NO

PHYSICIAN-PATIENT RELATIONSHIP EXISTED BETWEEN PETITIONERS AND
PATIENT ALFONSO SANTIAGO, JR., PETITIONERS NOT BEING THE LATTERS
ATTENDING PHYSICIAN AS THEY WERE MERELY REQUESTED BY THE
EMERGENCY ROOM (ER) NURSE TO SEE THE PATIENT WHILE THEY WERE
PASSING BY THE ER FOR THEIR LUNCH.

6. THE COURT OF APPEALS GRAVELY ERRED IN NOT ACQUITTING

ACCUSED-PETITIONERS OF THE CRIME CHARGED.[9]

The foregoing can be synthesized into two basic issues: [1] whether or not the doctrine of res ipsa

loquitur is applicable in this case; and [2] whether or not the petitioners are liable for criminal negligence.

THE COURTS RULING

The CA is correct in finding that there was negligence on the part of the petitioners. After a perusal of the
records, however, the Court is not convinced that the petitioners are guilty of criminal negligence complained of.
The Court is also of the view that the CA erred in applying the doctrine of res ipsa loquitur in this particular case.

As to the Application of The Doctrine of Res Ipsa Loquitur

This doctrine of res ipsa loquitur means "Where the thing which causes injury is shown to be under the
management of the defendant, and the accident is such as in the ordinary course of things does not happen if those
who have the management use proper care, it affords reasonable evidence, in the absence of an explanation by the
defendant, that the accident arose from want of care." The Black's Law Dictionary defines the said doctrine. Thus:

The thing speaks for itself. Rebuttable presumption or inference that defendant was
negligent, which arises upon proof that the instrumentality causing injury was in defendant's
exclusive control, and that the accident was one which ordinarily does not happen in absence of
negligence. Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer
may be inferred from the mere fact that the accident happened provided the character of the
accident and circumstances attending it lead reasonably to belief that in the absence of negligence
it would not have occurred and that thing which caused injury is shown to have been under the
management and control of the alleged wrongdoer. Under this doctrine, the happening of an injury
permits an inference of negligence where plaintiff produces substantial evidence that the injury
was caused by an agency or instrumentality under the exclusive control and management of
defendant, and that the occurrence was such that in the ordinary course of things would not happen
if reasonable care had been used.[10]

The doctrine of res ipsa loquitur as a rule of evidence is unusual to the law of negligence which recognizes
that prima facie negligence may be established without direct proof and furnishes a substitute for specific proof of
negligence. The doctrine, however, is not a rule of substantive law, but merely a mode of proof or a mere procedural
convenience. The rule, when applicable to the facts and circumstances of a given case, is not meant to and does not
dispense with the requirement of proof of culpable negligence on the party charged. It merely determines and
regulates what shall be prima facie evidence thereof and helps the plaintiff in proving a breach of the duty. The
doctrine can be invoked when and only when, under the circumstances involved, direct evidence is absent and not
readily available.[11]

The requisites for the application of the doctrine of res ipsa loquitur are: (1) the accident was of a kind which
does not ordinarily occur unless someone is negligent; (2) the instrumentality or agency which caused the injury was
under the exclusive control of the person in charge; and (3) the injury suffered must not have been due to any
voluntary action or contribution of the person injured.[12]

In this case, the circumstances that caused patient Roy Jr.s injury and the series of tests that were supposed
to be undergone by him to determine the extent of the injury suffered were not under the exclusive control of Drs.
Jarcia and Bastan. It was established that they are mere residents of the Manila Doctors Hospital at that time who
attended to the victim at the emergency room. [13] While it may be true that the circumstances pointed out by the
courts below seem doubtless to constitute reckless imprudence on the part of the petitioners, this conclusion is still
best achieved, not through the scholarly assumptions of a layman like the patients mother, but by the unquestionable
knowledge of expert witness/es. As to whether the petitioners have exercised the requisite degree of skill and care in
treating patient Roy, Jr. is generally a matter of expert opinion.

As to Dr. Jarcia and Dr. Bastans negligence

The totality of the evidence on record clearly points to the negligence of the petitioners. At the risk of being
repetitious, the Court, however, is not satisfied that Dr. Jarcia and Dr. Bastan are criminally negligent in this case.

Negligence is defined as the failure to observe for the protection of the interests of another person that
degree of care, precaution, and vigilance which the circumstances justly demand, whereby such other person suffers
injury.[14]

Reckless imprudence consists of voluntarily doing or failing to do, without malice, an act from which
material damage results by reason of an inexcusable lack of precaution on the part of the person performing or
failing to perform such act.[15]
The elements of simple negligence are: (1) that there is lack of precaution on the part of the offender, and
(2) that the damage impending to be caused is not immediate or the danger is not clearly manifest. [16]

In this case, the Court is not convinced with moral certainty that the petitioners are guilty of reckless
imprudence or simple negligence. The elements thereof were not proved by the prosecution beyond reasonable
doubt.

The testimony of Dr. Cirilo R. Tacata (Dr. Tacata), a specialist in pediatric orthopedic, although pointing to
some medical procedures that could have been done by Dr. Jarcia and Dr. Bastan, as physicians on duty, was not
clear as to whether the injuries suffered by patient Roy Jr. were indeed aggravated by the petitioners judgment call
and their diagnosis or appreciation of the condition of the victim at the time they assessed him. Thus:

Q: Will you please tell us, for the record, doctor, what is your specialization?
A: At present I am the chairman department of orthopedic in UP-PGH and I had special training in
pediatric orthopedic for two (2) years.

Q: In June 1998, doctor, what was your position and what was your specialization at that time?
A: Since 1980, I have been specialist in pediatric orthopedic.

Q: When Alfonso Santiago, Jr. was brought to you by his mother, what did you do by way of
physicians as first step?
A: As usual, I examined the patient physically and, at that time as I have said, the patient could not
walk so I [began] to suspect that probably he sustained a fracture as a result of a vehicular
accident. So I examined the patient at that time, the involved leg, I dont know if that is left
or right, the involved leg then was swollen and the patient could not walk, so I requested for
the x-ray of [the] lower leg.

Q: What part of the leg, doctor, did you request to be examined?

A: If we refer for an x-ray, usually, we suspect a fracture whether in approximal, middle or
lebistal tinial, we usually x-ray the entire extremity.

Q: And what was the result?

A: Well, I can say that it was a spiral fracture of the mid-tibial, it is the bigger bone of the leg.

Q: And when you say spiral, doctor, how long was this fracture?
A: When we say spiral, it is a sort of letter S, the length was about six (6) to eight (8) centimeters.

Q: Mid-tibial, will you please point to us, doctor, where the tibial is?
(Witness pointing to his lower leg)
A: The tibial is here, there are two bones here, the bigger one is the tibial and the smaller one is
the fibula. The bigger one is the one that get fractured.

Q: And in the course of your examination of Alfonso Santiago, Jr. did you ask for the history of
such injury?
 A: Yes, actually, that was a routine part of our examination that once a patient comes in, before we
actually examine the patient, we request for a detailed history. If it is an accident, then, we
request for the exact mechanism of injuries.

Q: And as far as you can recall, Doctor, what was the history of that injury that was told to you?
A: The patient was sideswiped, I dont know if it is a car, but it is a vehicular accident.

Q: Who did you interview?

A: The mother.

Q: How about the child himself, Alfonso Santiago, Jr.?

A: Normally, we do not interview the child because, usually, at his age, the answers are not
accurate. So, it was the mother that I interviewed.

Q: And were you informed also of his early medication that was administered on Alfonso
Santiago, Jr.?
A: No, not actually medication. I was informed that this patient was seen initially at the emergency
room by the two (2) physicians that you just mentioned, Dr. Jarcia and Dra. Bastan, that
time who happened to be my residents who were [on] duty at the emergency room.

xxxx

A: At the emergency room, at the Manila Doctors Hospital, the supervisor there is a consultant
that usually comes from a family medicine. They see where a certain patient have to go and
then if they cannot manage it, they refer it to the consultant on duty. Now at that time, I
dont why they dont Because at that time, I think, it is the decision. Since the x-rays

xxx

Q: You also said, Doctor, that Dr. Jarcia and Dra. Bastan are not even an orthopedic specialist.
A: They are general surgeon residents. You have to man[x] the emergency room, including
neurology, orthopedic, general surgery, they see everything at the emergency room.

xxxx

Q: But if initially, Alfonso Santiago, Jr. and his case was presented to you at the emergency
room, you would have subjected the entire foot to x-ray even if the history that was
given to Dr. Jarcia and Dra. Bastan is the same?
A: I could not directly say yes, because it would still depend on my examination, we cannot
subject the whole body for x-ray if we think that the damaged was only the leg.

Q: Not the entire body but the entire leg?

A: I think, if my examination requires it, I would.

Q: So, you would conduct first an examination?

A: Yes, sir.

Q: And do you think that with that examination that you would have conducted you would
discover the necessity subjecting the entire foot for x-ray?
A: It is also possible but according to them, the foot and the ankle were swollen and not the
leg, which sometimes normally happens that the actual fractured bone do not get
swollen.

xxxx

Q: Doctor, if you know that the patient sustained a fracture on the ankle and on the foot and
the history that was told to you is the region that was hit is the region of the foot, will
the doctor subject the entire leg for x-ray?
A: I am an orthopedic surgeon, you have to subject an x-ray of the leg. Because you have to
consider the kind of fracture that the patient sustained would you say the exact
mechanism of injury. For example spiral, paikot yung bale nya, so it was possible that
the leg was run over, the patient fell, and it got twisted. Thats why the leg seems to be
fractured.[17] [Emphases supplied]

It can be gleaned from the testimony of Dr. Tacata that a thorough examination was not performed on Roy
Jr. As residents on duty at the emergency room, Dr. Jarcia and Dr. Bastan were expected to know the medical
protocol in treating leg fractures and in attending to victims of car accidents. There was, however, no precise
evidence and scientific explanation pointing to the fact that the delay in the application of the cast to the patients
fractured leg because of failure to immediately diagnose the specific injury of the patient, prolonged the pain of the
child or aggravated his condition or even caused further complications. Any person may opine that had patient Roy
Jr. been treated properly and given the extensive X-ray examination, the extent and severity of the injury, spiral
fracture of the mid-tibial part or the bigger bone of the leg, could have been detected early on and the prolonged pain
and suffering of Roy Jr. could have been prevented. But still, that opinion, even how logical it may seem would not,
and could not, be enough basis to hold one criminally liable; thus, a reasonable doubt as to the petitioners guilt.
 Although the Court sympathizes with the plight of the mother and the child in this case, the Court is bound by
the dictates of justice which hold inviolable the right of the accused to be presumed innocent until proven guilty
beyond reasonable doubt. The Court, nevertheless, finds the petitioners civilly liable for their failure to sufficiently
attend to Roy Jr.s medical needs when the latter was rushed to the ER, for while a criminal conviction requires proof
beyond reasonable doubt, only a preponderance of evidence is required to establish civil liability. Taken into account
also was the fact that there was no bad faith on their part.

Dr. Jarcia and Dr. Bastan cannot pass on the liability to the taxi driver who hit the victim. It may be true
that the actual, direct, immediate, and proximate cause of the injury (fracture of the leg bone or tibia) of Roy Jr. was
the vehicular accident when he was hit by a taxi. The petitioners, however, cannot simply invoke such fact alone to
excuse themselves from any liability. If this would be so, doctors would have a ready defense should they fail to do
their job in attending to victims of hit-and-run, maltreatment, and other crimes of violence in which the actual,
direct, immediate, and proximate cause of the injury is indubitably the act of the perpetrator/s.
In failing to perform an extensive medical examination to determine the extent of Roy Jr.s injuries, Dr.
Jarcia and Dr. Bastan were remiss of their duties as members of the medical profession. Assuming for the sake of
argument that they did not have the capacity to make such thorough evaluation at that stage, they should have
referred the patient to another doctor with sufficient training and experience instead of assuring him and his mother
that everything was all right.
This Court cannot also stamp its imprimatur on the petitioners contention that no physician-patient
relationship existed between them and patient Roy Jr., since they were not his attending physicians at that time. They
claim that they were merely requested by the ER nurse to see the patient while they were passing by the ER for their
lunch. Firstly, this issue was never raised during the trial at the RTC or even before the CA. The petitioners,
therefore, raise the want of doctor-patient relationship for the first time on appeal with this Court. It has been settled
that issues raised for the first time on appeal cannot be considered because a party is not permitted to change his
theory on appeal. To allow him to do so is unfair to the other party and offensive to the rules of fair play, justice and
due process.[18] Stated differently, basic considerations of due process dictate that theories, issues and arguments not
brought to the attention of the trial court need not be, and ordinarily will not be, considered by a reviewing court. [19]

Assuming again for the sake of argument that the petitioners may still raise this issue of no physicianpatient
relationship, the Court finds and so holds that there was a physicianpatient relationship in this case.
In the case of Lucas v. Tuao,[20] the Court wrote that [w]hen a patient engages the services of a physician, a
physician-patient relationship is generated. And in accepting a case, the physician, for all intents and purposes,
represents that he has the needed training and skill possessed by physicians and surgeons practicing in the same
field; and that he will employ such training, care, and skill in the treatment of the patient. Thus, in treating his
patient, a physician is under a duty to exercise that degree of care, skill and diligence which physicians in the same
general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases. Stated
otherwise, the physician has the obligation to use at least the same level of care that any other reasonably competent
physician would use to treat the condition under similar circumstances.

Indubitably, a physician-patient relationship exists between the petitioners and patient Roy Jr. Notably, the
latter and his mother went to the ER for an immediate medical attention. The petitioners allegedly passed by and
were requested to attend to the victim (contrary to the testimony of Dr. Tacata that they were, at that time, residents
on duty at the ER).[21] They obliged and examined the victim, and later assured the mother that everything was fine
and that they could go home. Clearly, a physician-patient relationship was established between the petitioners and
the patient Roy Jr.

To repeat for clarity and emphasis, if these doctors knew from the start that they were not in the position to
attend to Roy Jr., a vehicular accident victim, with the degree of diligence and commitment expected of every doctor
in a case like this, they should have not made a baseless assurance that everything was all right. By doing so, they
deprived Roy Jr. of adequate medical attention that placed him in a more dangerous situation than he was already in.
What petitioners should have done, and could have done, was to refer Roy Jr. to another doctor who could
competently and thoroughly examine his injuries.

All told, the petitioners were, indeed, negligent but only civilly, and not criminally, liable as the facts show.

Article II, Section 1 of the Code of Medical Ethics of the Medical Profession in the Philippines states:

A physician should attend to his patients faithfully and conscientiously. He should secure for them all
possible benefits that may depend upon his professional skill and care. As the sole tribunal to adjudge the physicians
failure to fulfill his obligation to his patients is, in most cases, his own conscience, violation of this rule on his part is
discreditable and inexcusable.[22]

Established medical procedures and practices, though in constant instability, are devised for the
purpose of preventing complications. In this case, the petitioners failed to observe the most prudent medical
procedure under the circumstances to prevent the complications suffered by a child of tender age.
As to the Award of Damages

While no criminal negligence was found in the petitioners failure to administer the necessary medical
attention to Roy Jr., the Court holds them civilly liable for the resulting damages to their patient. While it was the
taxi driver who ran over the foot or leg of Roy Jr., their negligence was doubtless contributory.
 It appears undisputed that the amount of 3,850.00, as expenses incurred by patient Roy Jr., was
adequately supported by receipts. The Court, therefore, finds the petitioners liable to pay this amount by way of
actual damages.

The Court is aware that no amount of compassion can suffice to ease the sorrow felt by the family of the child
at that time. Certainly, the award of moral and exemplary damages in favor of Roy Jr. in the amount of 100,000.00
and 50,000.00, respectively, is proper in this case.

It is settled that moral damages are not punitive in nature, but are designed to compensate and alleviate in some
way the physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral
shock, social humiliation, and similar injury unjustly inflicted on a person. Intended for the restoration of the
psychological or emotional status quo ante, the award of moral damages is designed to compensate emotional injury
suffered, not to impose a penalty on the wrongdoer.[23]

The Court, likewise, finds the petitioners also liable for exemplary damages in the said amount. Article
2229 of the Civil Code provides that exemplary damages may be imposed by way of example or correction for the
public good.

WHEREFORE, the petition is PARTLY GRANTED. The Decision of the Court of Appeals dated August
29, 2008 is REVERSED and SET ASIDE. A new judgment is entered ACQUITTING Dr. Emmanuel Jarcia, Jr.
and Dr. Marilou Bastan of the crime of reckless imprudence resulting to serious physical injuries but declaring them
civilly liable in the amounts of:

(1) 3,850.00 as actual damages;

(2) 100,000.00 as moral damages;
(3) 50,000.00 as exemplary damages; and
(4) Costs of the suit.

with interest at the rate of 6% per annum from the date of the filing of the Information. The rate shall be 12%
interest per annum from the finality of judgment until fully paid.

G.R. Nos. 212140-41

January 21, 2015

SENATOR JINGGOY EJERCITO ESTRADA, vs. OFFICE OF THE OMBUDSMAN, FIELD

INVESTIGATION OFFICE, Office of the Ombudsman, NATIONAL BUREAU OF INVESTIGATION and
ATTY. LEVITO D. BALIGOD,

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the
witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the
complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses,
to be afforded an opportunity to be present but without the right to examine or crossexamine.

- Paderanga v. Drilon1

This case is a Petition for Certiorari2 with prayer for (1) the issuance of a temporary restraining order and/or Writ of
Preliminary Injunction enjoining respondents Office of the Ombudsman (Ombudsman), Field Investigation Office
(FIO) of the Ombudsman, National Bureau of Investigation (NBI), and Atty. Levito D. Baligod (Atty. Baligod)
(collectively, respondents), from conducting further proceedings in OMB-CC-13-03013 and OMB-C-C-13-0397
until the present Petition has been resolved with finality; and (2) this Courts declaration that petitioner Senator
Jinggoy Ejercito Estrada (Sen. Estrada)was denied due process of law, and that the Order of the Ombudsman dated
27 March 2014 and the proceedings in OMB-C-C-13-03013 and OMB-C-C-13-0397 subsequent to and affected by
the issuance of the challenged 27 March 2014 Order are void.

OMB-C-C-13-0313,3 entitled National Bureau of Investigation and Atty. Levito D. Baligod v. Jose "Jinggoy" P.
Ejercito Estrada, et al.,refers to the complaint for Plunder as defined under Republic Act (RA) No. 7080, while
OMB-C-C-13-0397,4 entitled Field Investigation Office, Office of the Ombudsman v. Jose "Jinggoy" P. Ejercito-
Estrada, et al., refers to the complaint for Plunder as defined underRA No. 7080 and for violation of Section 3(e) of
RA No. 3019 (Anti-Graft and Corrupt Practices Act).
The Facts
On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-C-C-13-0313,
filed by the NBI and Atty. Baligod, which prayed, among others, that criminal proceedings for Plunder as defined in
RA No. 7080 be conducted against Sen. Estrada. Sen. Estrada filed his counter-affidavit inOMB-C-C-13-0313 on 9
January 2014.

On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of the complaint in OMB-C-C-13-0397,
filed by the FIO of the Ombudsman, which prayed, among others, that criminal proceedings for Plunder, as defined
in RA No. 7080, and for violation of Section 3(e) of RA No. 3019, be conducted against Sen. Estrada. Sen. Estrada
filed his counter affidavit in OMB-C-C-13-0397 on 16 January 2014.
Eighteen of Sen. Estradas co-respondents in the two complaints filed their counter-affidavits between 9 December
2013 and 14 March 2014.5

On 20 March 2014, Sen. Estrada filed his Request to be Furnished with Copies of Counter-Affidavits of the Other
Respondents, Affidavits of New Witnesses and Other Filings (Request) in OMB-C-C-13-0313. In his Request, Sen.
Estrada asked for copies of the following documents:
(a) Affidavit of [co-respondent] Ruby Tuason (Tuason);
(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);
(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);
(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos (Relampagos);
(e) Consolidated Reply of complainant NBI, if one had been filed; and

(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other respondents and/or additional

witnesses for the Complainants.6

Sen. Estradas request was made "[p]ursuant to the right of a respondent to examine the evidence submitted by the
complainant which he may not have been furnished (Section 3[b], Rule 112 of the Rules of Court) and to have
access to the evidence on record (Section 4[c], Rule II of the Rules of Procedure of the Office of the
Ombudsman)."7

On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C-13-0313. The pertinent portions of the
assailed Order read:

This Office finds however finds [sic] that the foregoing provisions [pertaining to Section 3[b], Rule 112 of the Rules
of Court and Section 4[c], Rule II of the Rules of Procedure of the Office of the Ombudsman] do not entitle
respondent [Sen. Estrada]to be furnished all the filings of the respondents.

Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:

(a) The complaintshall state the address of the respondent and shall be accompanied by the affidavits of the
complainant and his witnesses, as well as other supporting documents to establish probable cause

xxx xxx xxx

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and
documents, the respondent shall submit his counter affidavit and that of his witnesses and other supporting
documents relied upon for his defense. The counter affidavits shall be subscribed and sworn to and certified
as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant.

Further to quote the rule in furnishing copies of affidavits to parties under the Rules of Procedure of the Office of the
Ombudsman [Section 4 of Rule II of Administrative Order No. 07 issued on April 10, 1990]:

a) If the complaint is not under oath or is based only on official reports, the investigating officer shall
require the complainant or supporting witnesses to execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a
copy of the affidavits and other supporting documents, directing the respondents to submit, within ten (10)
days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on
the complainant. The complainant may file reply affidavits within ten (10) days after service of the counter-
affidavits.

It can be gleaned from these aforecited provisions that this Office is required to furnish [Sen. Estrada] a copy of the
Complaint and its supporting affidavits and documents; and this Office complied with this requirement when it
furnished [Sen. Estrada] with the foregoing documents attached to the Orders to File Counter-Affidavit dated 19
November 2013 and 25 November 2013.

It is to be noted that there is noprovision under this Offices Rules of Procedure which entitles respondent to be
furnished all the filings by the other parties, e.g. the respondents. Ruby Tuason, Dennis Cunanan, Gondelina G.
Amata and Mario L. Relampagos themselves are all respondents in these cases. Under the Rules of Court as well as
the Rules of Procedure of the Office of the Ombudsman, the respondents are only required to furnish their counter-
affidavits and controverting evidence to the complainant, and not to the other respondents.

To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the preliminary investigation depend on the
rights granted to him by law and these cannot be based on whatever rights he believes [that] he is entitled to or those
that may be derived from the phrase "due process of law." Thus, this Office cannot grant his motion to be furnished
with copies of all the filings by the other parties. Nevertheless, he should be furnished a copy of the Reply of
complainant NBI as he is entitled thereto under the rules; however, as of this date, no Reply has been filed by
complainant NBI.
WHEREFORE, respondent [Sen.] Estradas Request to be Furnished with Copies of Counter-Affidavits of the Other
Respondents, Affidavits of New Witnesses and Other Filingsis DENIED. He is nevertheless entitled to be furnished
a copy of the Reply if complainant opts to file such pleading.8 (Emphases in the original)

On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMB-C-C-13-0397 a Joint Resolution 9which
found probable cause to indict Sen. Estrada and his co-respondents with one count of plunder and 11 counts of
violation of Section 3(e) of RA No. 3019. Sen. Estrada filed a Motion for Reconsideration (of the Joint Resolution
dated 28 March 2014) dated 7 April 2014. Sen. Estrada prayed for the issuance of a new resolution dismissing the
charges against him. Without filing a Motion for Reconsideration of the Ombudsmans 27 March 2014 Order
denying his Request, Sen. Estrada filed the present Petition for Certiorari under Rule 65 and sought to annul and set
aside the 27 March 2014 Order.

THE ARGUMENTS

Sen. Estrada raised the following grounds in his Petition:

THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED ORDER DATED 27 MARCH 2014,
ACTED WITHOUT OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND VIOLATED SEN. ESTRADA'S
CONSTITUTIONAL RIGHT TO DUE PROCESS OF LAW.10 Sen. Estrada also claimed that under the
circumstances, he has "no appeal or any other plain, speedy, and adequate remedy in the ordinary course of law,
except through this Petition."11 Sen. Estrada applied for the issuance of a temporary restraining order and/or writ of
preliminary injunction to restrain public respondents from conducting further proceedings in OMB-C-C-13-0313
and OMB-C-C-13-0397. Finally, Sen. Estrada asked for a judgment declaring that (a) he has been denied due
process of law, and as a consequence thereof, (b) the Order dated 27 March 2014, as well as the proceedings in
OMB-C-C-13-0313 and OMB-C-C-13-0397 subsequent to and affected bythe issuance of the 27 March 2014 Order,
are void.12

On the same date, 7 May 2014, the Ombudsman issued in OMBC-C-13-0313 and OMB-C-C-13-0397 a Joint Order
furnishing Sen. Estrada with the counter-affidavits of Tuason, Cunanan, Amata, Relampagos, Francisco Figura,
Gregoria Buenaventura, and Alexis Sevidal, and directing him to comment thereon within a non-extendible period of
five days fromreceipt of the order.

On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to suspend proceedings in OMB-C-C-13-0313
and OMB-C-C-13-0397 because the denial of his Request to be furnished copies of counter-affidavits of his co-
respondents deprived him of his right to procedural due process, and he has filed the present Petition before
thisCourt. The Ombudsman denied Sen. Estradas motion to suspend in an Order dated 15 May 2014. Sen. Estrada
filed a motion for reconsideration of the Order dated 15 May 2014 but his motion was denied in an Order dated 3
June 2014.

As of 2 June 2014,the date of filing of the Ombudsmans Comment to the present Petition, Sen. Estrada had not filed
a comment on the counter-affidavits furnished to him. On 4 June 2014, the Ombudsman issued a Joint Order in
OMB-C-C-13-0313 and OMB-C-C-13-0397 denying, among other motions filed by the other respondents, Sen.
Estradas motion for reconsideration dated 7 April 2014. The pertinent portion of the 4 June 2014 Joint Order stated:

While it is true that Senator Estradas request for copies of Tuason, Cunanan, Amata, Relampagos, Figura,
Buenaventura and Sevidals affidavits was denied by Order dated 27 March 2014 and before the promulgation of the
assailed Joint Resolution, this Office thereafter reevaluated the request and granted it byOrder dated 7 May 2014
granting his request. Copies of the requested counter-affidavits were appended to the copy of the Order dated 7 May
2014 transmitted to Senator Estrada through counsel.

This Office, in fact, held in abeyance the disposition of the motions for reconsideration in this proceeding in light of
its grant to Senator Estrada a period of five days from receipt of the 7 May 2014 Order to formally respond to the
above-named co-respondents claims.

In view of the foregoing, this Office fails to see how Senator Estrada was deprived of his right to procedural due
process.13 (Emphasis supplied)

On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public respondents), through the Officeof the
Solicitor General, filed their Comment to the present Petition. The public respondents argued that:

I. PETITIONER [SEN. ESTRADA] WAS NOTDENIED DUE PROCESS OF LAW.

II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.
A. LITIS PENDENTIA EXISTS IN THIS CASE.
B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE REMEDY IN THE ORDINARY
COURSE OF LAW.
III. PETITIONER IS NOTENTITLED TO A WRIT OF PRELIMINARY INJUNCTION AND/OR
TEMPORARY RESTRAINING ORDER.14

On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty. Baligod stated that Sen. Estradas
resort to a Petition for Certiorari under Rule 65 is improper. Sen. Estrada should have either filed a motion for
reconsideration of the 27 March 2014 Order or incorporated the alleged irregularity in his motion for reconsideration
of the 28 March 2014 Joint Resolution. There was also no violation of Sen. Estradas right to due process because
there is no rule which mandates that a respondent such as Sen. Estrada be furnished with copies of the submissions
of his corespondents.

On 16 June 2014, Sen. Estrada filed his Reply to the public respondents Comment. Sen. Estrada insisted that he was
denied due process. Although Sen. Estrada received copies of the counter-affidavits of Cunanan, Amata,
Relampagos, Buenaventura, Figura, Sevidal, as well as one of Tuasons counter-affidavits, heclaimed that he was not
given the following documents:

a) One other Counter-Affidavit of Ruby Tuason dated 21 February 2014;

b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;
c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;
d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February 2014;
e) Counter-Affidavit of VictorRoman Cojamco Cacal dated 11 December 2013 (to the FIO Complaint);
f) Counter-Affidavit of VictorRoman Cojamco Cacal dated 22 January 2014 (to the NBI Complaint);
g) Two (2) counter-affidavits of Ma. Julie A. VillaralvoJohnson both dated 14 March 2014;
h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March 2014;
i) Counter-affidavit of Maria Ninez P. Guaizo dated 28 January 2014;
j) Two (2) counter-affidavits of Marivic V. Jover both dated 09 December 2013; and
k) Counter-affidavit of Francisco B. Figura dated 08 January 2014. Sen. Estrada argues that the Petition
isnot rendered moot by the subsequent issuance of the 7 May 2014 Joint Order because there is a recurring
violation of his right to due process. Sen. Estrada also insists that there is no forum shopping as the present
Petition arose from an incident in the main proceeding, and that he has no other plain, speedy, and adequate
remedy in the ordinary course of law. Finally, Sen. Estrada reiterates his application for the issuance of a
temporary restraining order and/or writ of preliminary injunction to restrain public respondents from
conducting further proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397.

This Courts Ruling

Considering the facts narrated above, the Ombudsmans denial in its 27 March 2014 Order of Sen. Estradas Request
did not constitute grave abuse of discretion. Indeed, the denial did not violate Sen. Estradas constitutional right to
due process.

First. There is no law or rule which requires the Ombudsman to furnish a respondent with copies of the counter-
affidavits of his co-respondents.

We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of Criminal Procedure, as well as Rule II of
Administrative Order No. 7, Rules of Procedure of the Office of the Ombudsman, for ready reference.

From the Revised Rules of Criminal Procedure, Rule 112: Preliminary Investigation

Section 3. Procedure. The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the
complainant and his witnesses, as well as other supporting documents to establish probable cause. They
shall be in such number of copies as there are respondents, plus two (2) copies for the official file. The
affidavits shall be subscribed and sworn to before any prosecutor or government official authorized to
administer oath, or, in their absence or unavailability, before a notary public, each of who must certify
thathe personally examined the affiants and that he is satisfied that they voluntarily executed and
understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he
finds no ground to continue with the investigation, or issue a subpoena to the respondent attaching to it a
copy of the complaint and its supporting affidavits and documents. The respondent shall have the right to
examine the evidence submitted by the complainant which he may not have been furnished and to copy
them at his expense. If the evidence is voluminous, the complainant may be required to specify those which
he intends to present against the respondent, and these shall be made available for examination or copying
by the respondent at his expense.
Objects as evidence need not be furnished a party but shall be made available for examination, copying, or
photographing at the expense of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and
documents, the respondent shall submit his counter-affidavit and that of his witnesses and other supporting
documents relied upon for his defense. The counter-affidavits shall be subscribed and sworn to and certified
as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant. The
respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the
ten (10) day period, the investigating officer shall resolve the complaint based on the evidence presented by
the complainant.
(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party ora
witness. The parties can be present at the hearing but without the right to examine or cross-examine. They
may, however, submit to the investigating officer questions which may be asked to the party or witness
concerned.
 The hearing shall be held within ten (10) days from submission of the counter-affidavits and other
documents or from the expiration of the period for their submission. It shall be terminated within five (5)
days.
(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there
is sufficient ground to hold the respondent for trial. Section 4. Resolution of investigating prosecutor and its
review. If the investigating prosecutor finds cause to hold the respondent for trial, he shall prepare the
resolution and information. He shall certify under oath in the information that he, or as shown by the
record, an authorized officer, has personally examined the complainant and his witnesses; that there is
reasonable ground to believe that a crime has been committed and that the accused is probably guilty
thereof; that the accused was informed of the complaint and of the evidence submitted against him; and that
he was given an opportunity to submit controverting evidence. Otherwise, he shall recommend the
dismissal of the complaint.

Within five (5) days from his resolution, he shall forward the record of the case to the provincial or city
prosecutor or chief state prosecutor, or to the Ombudsman orhis 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.

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.

Where the investigating prosecutor recommends the dismissal of the complaint but his recommendation is
disapproved by the provincial or city prosecutor or chief state prosecutor or the Ombudsman or his deputy on the
ground that a probable cause exists, the latter may, by himself, file the information against the respondent, or direct
any other assistant prosecutor or state prosecutor to do so without conducting another preliminary investigation.

If upon petition by a proper party under such rules as the Department of Justice may prescribe or motu proprio, the
Secretary of Justice reverses or modifies the resolution of the provincial or city prosecutor or chief state prosecutor,
he shall direct the prosecutor concerned either to file the corresponding information without conducting another
preliminary investigation, or to dismiss or move for dismissal of the complaint or information with notice to the
parties. The same rule shall apply in preliminary investigations conducted by the officers of the Office of the
Ombudsman. From the Rules of Procedure of the Office of the Ombudsman, Administrative Order No. 7, Rule II:
Procedure in Criminal Cases

Section 1. Grounds. A criminal complaint may be brought for an offense in violation of R.A. 3019,as amended,
R.A. 1379, as amended, R.A. 6713, Title VII, Chapter II, Section 2 of the Revised Penal Code, and for such other
offenses committed by public officers and employees in relation to office.

Sec. 2. Evaluation. Upon evaluating the complaint, the investigating officer shall recommend whether it may be:
a) dismissed outright for want of palpable merit;
b) referred to respondent for comment;
c) indorsed to the proper government office or agency which has jurisdiction over the case;
d) forwarded to the appropriate office or official for fact-finding investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.
Sec. 3. Preliminary investigation; who may conduct. Preliminary investigation may be conducted by any of the
following:
1) Ombudsman Investigators;
2) Special Prosecuting Officers;
3) Deputized Prosecutors;
4) Investigating Officials authorized by law to conduct preliminary investigations; or
5) Lawyers in the government service, so designated by the Ombudsman.

Sec. 4. Procedure. The preliminary investigation of cases falling under the jurisdiction of the Sandiganbayan and
Regional Trial Courts shall be conducted in the manner prescribed in Section 3, Rule 112 of the Rules of Court,
subject to the following provisions:

a) If the complaint is not under oath or is based only on official reports, the investigating officer shall
require the complainant or supporting witnesses to execute affidavits to substantiate the complaints.

b) After such affidavits have been secured, the investigating officer shall issue an order, attaching thereto a
copy of the affidavits and other supporting documents, directing the respondent to submit, within ten (10)
days from receipt thereof, his counter-affidavits and controverting evidence with proof of service thereof on
thecomplainant. The complainant may file reply affidavits within ten (10) days after service of the counter-
affidavits.

c) If the respondent does not file a counter-affidavit, the investigating officer may consider the comment
filed by him, if any, as his answer to the complaint. In any event, the respondent shall have access to the
evidence on record.

d) No motion to dismiss shall be allowed except for lack of jurisdiction. Neither may a motion for a bill of
particulars be entertained. If respondent desires any matter in the complainants affidavit to be clarified, the
 particularization thereof may be done at the time of clarificatory questioning in the manner provided in
paragraph (f) of this section.

e) If the respondent cannot be served with the order mentioned in paragraph 6 hereof, or having been
served, does not comply therewith, the complaint shall be deemed submitted for resolution on the basis of
the evidence on record.

f) If, after the filing of the requisite affidavits and their supporting evidences, there are facts material to the
case which the investigating officer may need to be clarified on, he may conduct a clarificatory hearing
during which the parties shall be afforded the opportunity to be present but without the right to examine or
cross-examine the witness being questioned. Where the appearance of the parties or witnesses is
impracticable, the clarificatory questioning may be conducted in writing, whereby the questions desired to
be asked by the investigating officer or a party shall be reduced into writing and served on the witness
concerned who shall be required to answer the same in writing and under oath.

g) Upon the termination of the preliminary investigation, the investigating officer shall forward the records
of the case together with his resolution to the designated authorities for their appropriate action thereon.

No information may be filed and no complaint may be dismissed without the written authority or approval of the
Ombudsman in cases falling within the jurisdiction of the Sandiganbayan, or of the proper Deputy Ombudsman in
all other cases.
xxxx
Sec. 6. Notice to parties. The parties shall be served with a copy of the resolution as finally approved by the
Ombudsman or by the proper Deputy Ombudsman.

Sec. 7. Motion for reconsideration. a) Only one (1) motion for reconsideration or reinvestigation of anapproved
order or resolution shall be allowed, the same to be filed within fifteen (15) days from notice thereof with the Office
of the Ombudsman, or the proper deputy ombudsman as the case may be.

xxxx

b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the corresponding Information
in court on the basis of the finding of probable cause in the resolution subject of the motion. (Emphasis supplied)

Sen. Estrada claims that the denial of his Request for the counter affidavits of his co-respondents violates his
constitutional right to due process. Sen. Estrada, however, fails to specify a law or rule which states that it is a
compulsory requirement of due process in a preliminary investigation that the Ombudsman furnish a respondent
with the counter-affidavits of his co-respondents. Neither Section 3(b), Rule 112 of the Revised Rules of Criminal
Procedure nor Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman supports Sen.
Estradas claim. What the Rules of Procedure of the Office of the Ombudsman require is for the Ombudsman to
furnish the respondent with a copy of the complaint and the supporting affidavits and documents at the time the
order to submit the counter-affidavit is issued to the respondent. This is clear from Section 4(b), Rule II of the Rules
of Procedure of the Office of the Ombudsman when it states, "[a]fter such affidavits [of the complainant and his
witnesses] have been secured, the investigating officer shall issue an order, attaching thereto a copy of the affidavits
and other supporting documents, directing the respondent to submit, within ten (10) days from receipt thereof, his
counter-affidavits x x x." At this point, there is still no counter-affidavit submitted by any respondent. Clearly, what
Section 4(b) refers to are affidavits of the complainant and his witnesses, not the affidavits of the co-respondents.
Obviously, the counter-affidavits of the co-respondents are not part of the supporting affidavits of the complainant.
No grave abuse of discretion can thus be attributed to the Ombudsman for the issuance of the 27 March 2014 Order
which denied Sen. Estradas Request.

Although Section 4(c), Rule II of the Rules of Procedure of the Office of the Ombudsman provides that a respondent
"shall have access to the evidence on record," this provision should be construed in relation to Section 4(a) and (b)
of the same Rule, as well as to the Rules of Criminal Procedure. First, Section 4(a) states that "theinvestigating
officer shall require the complainant or supporting witnesses to execute affidavits to substantiate the complaint." The
"supporting witnesses" are the witnesses of the complainant, and do not refer to the co-respondents.

Second, Section 4(b) states that "the investigating officer shall issue an order attaching thereto a copy of the
affidavits and all other supporting documents, directing the respondent" tosubmit his counter-affidavit. The
affidavits referred to in Section 4(b) are the affidavits mentioned in Section

4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits of the complainant and his supporting
witnesses. The provision in the immediately succeeding Section 4(c) of the same Rule II that a respondent shall have
"access to the evidence on record" does not stand alone, but should be read in relation to the provisions of Section
4(a and b) of the same Rule II requiring the investigating officer to furnish the respondent with the "affidavits and
other supporting documents" submitted by "the complainant or supporting witnesses." Thus, a respondents "access
to evidence on record" in Section 4(c), Rule II of the Ombudsmans Rules of Procedure refers to the affidavits and
supporting documents of "the complainant or supporting witnesses" in Section 4(a) of the same Rule II.

Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure provides that "[t]he respondent shall have
the right to examine the evidence submitted by the complainant which he may not have been furnished and to copy
them at his expense." A respondents right to examine refers only to "the evidence submitted by the complainant."
Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or under Rule II of the Ombudsmans
Rules of Procedure, there is no requirement whatsoever that the affidavits executed by the corespondents should be
furnished to a respondent. Justice Velascos dissent relies on the ruling in Office of the Ombudsman v. Reyes (Reyes
case),15 an administrative case, in which a different set of rules of procedure and standards apply. Sen. Estradas
Petition, in contrast, involves the preliminary investigation stage in a criminal case. Rule III on the Procedure in
Administrative Cases of the Rules of Procedure of the Office of the Ombudsman applies in the Reyes case, while
Rule II on the Procedure in Criminal Cases of the Rules of Procedure of the Office of the Ombudsman applies in
Sen. Estradas Petition. In both cases, the Rules of Court apply in a suppletory character or by analogy. 16

In the Reyescase, the complainant Acero executed an affidavit against Reyes and Pealoza, who were both
employees of the Land Transportation Office. Pealoza submitted his counter-affidavit, as well as those of his two
witnesses. Reyes adopted his counter-affidavit in another case before the Ombudsman as it involved the same parties
and the same incident. None of the parties appeared during the preliminary conference. Pealoza waived his right to
a formal investigation and was willing to submit the case for resolution based on the evidence on record. Pealoza
also submitted a counter-affidavit of his third witness. The Ombudsman found Reyes guilty of grave misconduct and
dismissed him from the service. On the other hand, Pealoza was found guilty of simple misconduct and penalized
with suspension from office without pay for six months. This Court agreed with the Court of Appeals finding that
Reyes right to due process was indeed violated. This Court remanded the records of the case to the Ombudsman, for
two reasons: (1) Reyes should not have been meted the penalty of dismissal from the service when the evidence was
not substantial, and (2) there was disregard of Reyes right to due process because he was not furnished a copy of the
counter-affidavits of Pealoza and of Pealozas three witnesses. In the Reyes case, failure to furnish a copy of the
counter-affidavits happened in the administrative proceedings on the merits, which resulted in Reyes dismissal from
the service. In Sen. Estradas Petition, the denial of his Request happened during the preliminary investigation where
the only issue is the existence of probable cause for the purpose of determining whether an information should be
filed, and does not prevent Sen. Estrada from requesting a copy of the counter-affidavits of his co-respondents
during the pre-trial or even during the trial.

We should remember to consider the differences in adjudicating cases, particularly an administrative case and a
criminal case:

Any lawyer worth his salt knows that quanta of proof and adjective rules vary depending on whether the cases to
which they are meant to apply are criminal, civil or administrative in character. In criminal actions, proof beyond
reasonable doubt is required for conviction;in civil actions and proceedings, preponderance of evidence, as support
for a judgment; and in administrative cases, substantial evidence, as basis for adjudication. In criminal and civil
actions, application of the Rules of Court is called for, with more or less strictness. In administrative proceedings,
however, the technical rules of pleadingand procedure, and of evidence, are not strictly adhered to; they generally
apply only suppletorily; indeed, in agrarian disputes application of the Rules of Court is actually prohibited. 17

It should be underscored that the conduct of a preliminary investigation is only for the determination of probable
cause, and "probable cause merely implies probability of guilt and should be determined in a summary manner. A
preliminary investigation is not a part of the trial and it is only in a trial where an accused can demand the full
exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence." 18Thus,
the rights of a respondent in a preliminary investigation are limited to those granted by procedural law.

A preliminary investigation is defined as an inquiry or proceeding for the purpose of determining whether there is
sufficient ground to engender a well founded belief that a crime cognizable by the Regional Trial Court has been
committed and that the respondent is probably guilty thereof, and should be held for trial. The quantum of evidence
now required in preliminary investigation is such evidence sufficient to "engender a well founded belief" as tothe
fact of the commission of a crime and the respondent's probable guilt thereof. 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. We are in accord with the state prosecutors findings in the case at bar that there exists prima facie evidence
of petitioners involvement in the commission of the crime, it being sufficiently supported by the evidence presented
and the facts obtaining therein.

Likewise devoid of cogency is petitioners argument that the testimonies of Galarion and Hanopol are inadmissible
as to him since he was not granted the opportunity of cross-examination.

It is a fundamental principle that the accused in a preliminary investigation has no right to cross-examine the
witnesses which the complainant may present. Section 3, Rule 112 of the Rules of Court expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to examine all other evidence submitted by the
complainant and, where the fiscal sets a hearing to propound clarificatory questions to the parties or their witnesses,
to be afforded an opportunity to be present but without the right to examine or cross-examine. Thus, even if
petitioner was not given the opportunity to cross-examine Galarion and Hanopol atthe time they were presented to
testify during the separate trial of the case against Galarion and Roxas, he cannot assert any legal right to cross-
examine them at the preliminary investigation precisely because such right was never available to him. The
admissibility or inadmissibility of said testimonies should be ventilated before the trial court during the trial proper
and not in the preliminary investigation.

Furthermore, the technical rules on evidence are not binding on the fiscal who has jurisdiction and control over the
conduct of a preliminary investigation. If by its very nature a preliminary investigation could be waived by the
accused, we find no compelling justification for a strict application of the evidentiary rules. In addition, considering
that under Section 8, Rule 112 of the Rules of Court, the record of the preliminary investigation does not form part
of the record of the case in the Regional Trial Court, then the testimonies of Galarion and Hanopol may not be
admitted by the trial court if not presented in evidence by the prosecuting fiscal. And, even if the prosecution does
present such testimonies, petitioner can always object thereto and the trial court can rule on the admissibility thereof;
or the petitioner can, during the trial, petition said court to compel the presentation of Galarion and Hanopol for
purposes of cross-examination.19 (Emphasis supplied)

Furthermore, in citing the Reyes case, Justice Velascos dissent overlooked a vital portion of the Court of Appeals
reasoning. This Court quoted from the Court of Appeals decision: "x x x [A]dmissions made by Pealoza in his
sworn statement are binding only on him. Res inter alios act a alteri nocere non debet. The rights of a party cannot
be prejudiced by an act, declaration or omission of another." In OMB-C-C-13-0313 and OMB-C-C-13-0397, the
admissions of Sen. Estradas co-respondents can in no way prejudice Sen. Estrada. Even granting Justice Velascos
argument that the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-C-C-13-0397 20mentioned the
testimonies of Sen. Estradas corespondents like Tuason and Cunanan, their testimonies were merely corroborative
of the testimonies of complainants witnesses Benhur Luy, Marina Sula, and Merlina Suas and were not mentioned
in isolation from the testimonies of complainants witnesses.

Moreover, the sufficiency of the evidence put forward by the Ombudsman against Sen. Estrada to establish its
finding of probable cause in the 28 March 2014 Joint Resolution in OMB-C-C-13-0313 and OMB-CC-13-0397 was
judicially confirmed by the Sandiganbayan, when it examined the evidence, found probable cause, and issued a
warrant of arrest against Sen. Estrada on 23 June 2014.

We likewise take exception to Justice Brions assertion that "the due process standards that at the very least should
be considered in the conduct of a preliminary investigation are those that this Court first articulated in Ang Tibay v.
Court of Industrial Relations [Ang Tibay]." 21 Simply put, the Ang Tibay guidelines for administrative cases do not
apply to preliminary investigations in criminal cases. An application of the Ang Tibay guidelines to preliminary
investigations will have absurd and disastrous consequences.

Ang Tibay enumerated the constitutional requirements of due process, which Ang Tibay described as the
"fundamental and essential requirements of due process in trials and investigations of an administrative
character."22 These requirements are "fundamental and essential" because without these, there isno due process as
mandated by the Constitution. These "fundamental and essential requirements" cannot be taken away by legislation
because theyare part of constitutional due process. These "fundamental and essential requirements" are:
(1) The first of these rights is the right to a hearing, which includes the right of the party interested or
affected to present his own case and submit evidence in support thereof. x x x.
(2) Not only must the party be given an opportunity to present his case and adduce evidence tending to
establish the rights which he asserts but the tribunal must consider the evidence presented. x x x.
(3) "While the duty to deliberatedoes not impose the obligation to decide right, it does imply a necessity
which cannot be disregarded, namely, that of having something to support its decision. A decision with
absolutely nothing to support it is a nullity, x x x."
(4) Not only must there be some evidence to support a finding or conclusion, but the evidence must be
"substantial." "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." x x x.
(5) The decision must be rendered on the evidence presented at the hearing, or at least contained in the
record and disclosed to the parties affected. x x x.
(6) The Court of Industrial Relations or any of its judges, therefore, must act on its or his own independent
consideration of the law and facts of the controversy, and not simply accept the views of a subordinate in
arriving at a decision. x x x.
(7) The Court of Industrial Relations should, in all controversial questions, render its decision in sucha
manner that the parties to the proceeding can know the various issues involved, and the reasons for the
decisions rendered. The performance of this duty is inseparable from the authority conferred upon it.23
The guidelines set forth in Ang Tibay are further clarified in GSIS v. CA 24 (GSIS): "what Ang Tibay failed to
explicitly state was, prescinding from the general principles governing due process, the requirement of an impartial
tribunalwhich, needless to say, dictates that one called upon to resolve a dispute may not sit as judge and jury
simultaneously, neither may he review his decision on appeal." 25 The GSIS clarification affirms the non applicability
of the Ang Tibay guidelines to preliminary investigations in criminal cases: The investigating officer, which is the
role that the Office of the Ombudsman plays in the investigation and prosecution of government personnel, will
never be the impartial tribunal required in Ang Tibay, as amplified in GSIS. The purpose of the Office of the
Ombudsman in conducting a preliminary investigation, after conducting its own factfinding investigation, is to
determine probable cause for filing an information, and not to make a final adjudication of the rights and obligations
of the parties under the law, which is the purpose of the guidelines in Ang Tibay. The investigating officer
investigates, determines probable cause, and prosecutes the criminal case after filing the corresponding information.

The purpose in determining probable cause is to make sure that the courts are not clogged with weak cases that will
only be dismissed, as well as to spare a person from the travails of a needless prosecution. 26 The Ombudsman and
the prosecution service under the control and supervision of the Secretary of the Department of Justice are inherently
the fact-finder, investigator, hearing officer, judge and jury of the respondent in preliminary investigations.
Obviously, this procedure cannot comply with Ang Tibay, as amplified in GSIS. However, there is nothing
unconstitutional with this procedure because this is merely an Executive function, a part of the law enforcement
process leading to trial in court where the requirements mandated in Ang Tibay, as amplified in GSIS, will apply.
This has been the procedure under the 1935, 1973 and 1987 Constitutions. To now rule that Ang Tibay, as amplified
in GSIS, should apply to preliminary investigations will mean that all past and present preliminary investigations are
in gross violation of constitutional due process.
Moreover, a person under preliminary investigation, as Sen. Estrada is in the present case when he filed his Request,
is not yet an accused person, and hence cannot demand the full exercise of the rights of an accused person:

A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been
committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence
of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing
absolute certainty of guilt. As well put in Brinegar v. United States, while probable cause demands more than "bare
suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely
binds over the suspect to stand trial. It is not a pronouncement of guilt.

Considering the low quantum and quality of evidence needed to support a finding of probable cause, wealso hold
that the DOJ Panel did not gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory
questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the
investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need
not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be
determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an
accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to
establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced
to establish probable cause and clarificatory hearing was unnecessary. 27

Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v. Hernandez, 28 that the "rights
conferred upon accused persons to participate in preliminary investigations concerning themselves depend upon the
provisions of law by which such rights are specifically secured, rather than upon the phrase due process of law."
This reiterates Justice Jose P. Laurels oft-quoted pronouncement in Hashim v. Boncan 29 that "the right to a
preliminary investigation is statutory, not constitutional." In short, the rights of a respondent ina preliminary
investigation are merely statutory rights, not constitutional due process rights. An investigation to determine
probable cause for the filing of an information does not initiate a criminal action so as to trigger into operation
Section 14(2), Article III of the Constitution. 30 It is the filing of a complaint or information in court that initiates a
criminal action.31

The rights to due process in administrative cases as prescribed in Ang Tibay,as amplified in GSIS, are granted by the
Constitution; hence, these rights cannot be taken away by merelegislation. On the other hand, as repeatedly
reiterated by this Court, the right to a preliminary investigation is merely a statutory right, 32 not part of the
"fundamental and essential requirements" of due process as prescribed in Ang Tibay and amplified in GSIS. Thus, a
preliminary investigation can be taken away by legislation. The constitutional right of an accused to confront the
witnesses against him does not apply in preliminary investigations; nor will the absence of a preliminary
investigation be an infringement of his right to confront the witnesses against him. 33 A preliminary investigation may
be done away with entirely without infringing the constitutional right of an accused under the due process clause to a
fair trial.34

The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is greater than the evidenceneeded in a
preliminary investigation to establish probable cause, or to establish the existence of a prima facie case that would
warrant the prosecution of a case. Ang Tibay refers to "substantial evidence," while the establishment of probable
cause needs "only more than bare suspicion, or less than evidence which would justify . . . conviction." In the
United States, from where we borrowed the concept of probable cause, 35 the prevailing definition of probable cause
is this:

In dealing with probable cause, however, as the very name implies, we deal with probabilities.These are not
technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men,
not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.

"The substance of all the definitions" of probable cause "is a reasonable ground for belief of guilt." McCarthy v. De
Armit, 99 Pa. St. 63, 69, quoted with approval in the Carroll opinion. 267 U. S. at 161. And this "means less than
evidence which would justify condemnation" or conviction, as Marshall, C. J., said for the Court more than a
century ago in Locke v. United States, 7 Cranch 339, 348. Since Marshalls time, at any rate, it has come to mean
more than bare suspicion: Probable cause exists where "the facts and circumstances within their [the officers]
knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a
man of reasonable caution in the belief that" an offense has been or is being committed. Carroll v. United States, 267
U. S. 132, 162.

These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy
and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the communitys
protection. Because many situations which confront officers in the course of executing their duties are more or less
ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable
men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical,
non technical conception affording the best compromise that has been found for accommodating these often
opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-
abiding citizens at the mercy of the officers whim or caprice. 36

In the Philippines, there are four instances in the Revised Rules of Criminal Procedure where probable cause is
needed to be established:
 (1) In Sections 1 and 3 of Rule 112: By the investigating officer, 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, and should be held for trial. A preliminary investigation is required before the filing of a
complaint or information for an offense where the penalty prescribed by law is at least four years, two
months and one day without regard to the fine;

(2) In Sections 6 and 9 of Rule 112: By the judge, to determine whether a warrant of arrest or a
commitment order, if the accused has already been arrested, shall be issued and that there is a necessity of
placing the respondent under immediate custody in order not to frustrate the ends of justice;

(3) In Section 5(b) of Rule 113: By a peace officer or a private person making a warrantless arrest when an
offense has just been committed, and he has probable cause to believe based on personal knowledge of
facts or circumstances that the person to be arrested has committed it; and

(4) In Section 4 of Rule 126: By the judge, to determine whether a search warrant shall be issued, and only
upon probable cause in connection with one specific offense to be determined personally by the judge after
examination under oath or affirmation of the complainant and the witnesses he may produce, and
particularly describing the place to be searched and the things to be seized which may be anywhere in the
Philippines.

In all these instances, the evidence necessary to establish probable cause is based only on the likelihood, or
probability, of guilt. Justice Brion, in the recent case of Unilever Philippines, Inc. v. Tan 37 (Unilever), stated:

The determination of probable cause needs only to rest on evidence showing that more likely than not, a crime has
been committed and there is enough reason to believe that it was committed by the accused. It need not be based on
clear and convincing evidence of guilt, neither on evidence establishing absolute certainty of guilt. What is merely
required is "probability of guilt." Its determination, too, does not call for the application of rules or standards of
proof that a judgment of conviction requires after trial on the merits. Thus, in concluding that there is probable
cause, it suffices that it is believed that the act or omission complained of constitutes the very offense charged.

It is also important to stress that the determination of probable cause does not depend on the validity or merits of a
partys accusation or defense or on the admissibility or veracity of testimonies presented. As previously discussed,
these matters are better ventilated during the trial proper of the case. As held in Metropolitan Bank & Trust
Company v. Gonzales:

Probable cause has been defined as 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 was guilty of
the crime for which he was prosecuted. x x x. The term does not mean "actual or positive cause" nor does it import
absolute certainty. It is merely based on opinion and reasonable belief. Thus, a finding of probable cause does not
require an inquiry into whether there is sufficient evidence to procure a conviction. It is enough that it is believed
that the act or omission complained of constitutes the offense charged. Precisely, there is a trial for the reception of
evidence of the prosecution in support of the charge. (Bold facing and italicization supplied)

Justice Brions pronouncement in Unilever that "the determination of probable cause does not depend on the validity
or merits of a partys accusation or defense or on the admissibility or veracity of testimonies presented" correctly
recognizes the doctrine in the United States that the determination of probable cause can rest partially, or even
entirely, on hearsay evidence, as long as the person making the hearsay statement is credible. In United States v.
Ventresca,38 the United States Supreme Court held:

While a warrant may issue only upon a finding of "probable cause," this Court has long held that "the term probable
cause . . . means less than evidence which would justify condemnation," Locke v. United States, 7 Cranch 339, 11
U.S. 348, and that a finding of "probable cause" may rest upon evidence which is not legally competent in a criminal
trial. Draper v. United States, 358 U.S. 307, 358 U.S. 311. As the Court stated in Brinegar v. United States, 338 U.S.
160, 173, "There is a large difference between the two things tobe proved (guilt and probable cause), as well as
between the tribunals which determine them, and therefore a like difference in the quanta and modes of proof
required to establish them." Thus, hearsay may be the basis for issuance of the warrant "so long as there . . . [is] a
substantial basis for crediting the hearsay." Jones v. United States, supra, at 362 U.S. 272. And, in Aguilar, we
recognized that "an affidavit may be based on hearsay information and need not reflect the direct personal
observations of the affiant," so long as the magistrate is "informed of some of the underlying circumstances"
supporting the affiants conclusions and his belief that any informant involved "whose identity need not be disclosed
. . ." was "credible" or his information "reliable." Aguilar v. Texas, supra, at 378 U.S. 114. (Emphasis supplied)

Thus, probable cause can be established with hearsay evidence, as long as there is substantial basis for crediting the
hearsay. Hearsay evidence is admissible in determining probable cause in a preliminary investigation because such
investigation is merely preliminary, and does not finally adjudicate rights and obligations of parties. However, in
administrative cases, where rights and obligations are finally adjudicated, what is required is "substantial evidence"
which cannot rest entirely or even partially on hearsay evidence. Substantial basis is not the same as substantial
evidence because substantial evidence excludes hearsay evidence while substantial basis can include hearsay
evidence. To require the application of Ang Tibay, as amplified in GSIS, in preliminary investigations will change
the quantum of evidence required in determining probable cause from evidence of likelihood or probability of guilt
to substantial evidence of guilt.
It is, moreover, necessary to distinguish between the constitutionally guaranteed rights of an accused and the right to
a preliminary investigation. To treat them the same will lead toabsurd and disastrous consequences.

All pending criminal cases in all courts throughout the country will have to be remanded to the preliminary
investigation level because none of these will satisfy Ang Tibay, as amplified in GSIS. Preliminary investigations are
conducted by prosecutors, who are the same officials who will determine probable cause and prosecute the cases in
court. The prosecutor is hardly the impartial tribunal contemplated in Ang Tibay, as amplified in GSIS. A
reinvestigation by an investigating officer outside of the prosecution service will be necessary if Ang Tibay, as
amplified in GSIS, were to be applied. This will require a new legislation. In the meantime, all pending criminal
cases in all courts will have to be remanded for reinvestigation, to proceed only when a new law is in place. To
require Ang Tibay, as amplified in GSIS, to apply to preliminary investigation will necessarily change the concept of
preliminary investigation as we know it now. Applying the constitutional due process in Ang Tibay, as amplified in
GSIS, to preliminary investigation will necessarily require the application of the rights of an accused in Section
14(2), Article III of the 1987 Constitution. This means that the respondent can demand an actual hearing and the
right to cross-examine the witnesses against him, rights which are not afforded at present toa respondent in a
preliminary investigation.

The application of Ang Tibay, as amplified in GSIS, is not limited to those with pending preliminary investigations
but even to those convicted by final judgment and already serving their sentences. The rule is well-settled that a
judicial decision applies retroactively if it has a beneficial effect on a person convicted by final judgment even if he
is already serving his sentence, provided that he is not a habitual criminal. 39 This Court retains its control over a case
"until the full satisfaction of the final judgment conformably with established legal processes." 40 Applying Ang
Tibay, as amplified in GSIS, to preliminary investigations will result in thousands of prisoners, convicted by final
judgment, being set free from prison.

Second. Sen. Estradas present Petition for Certiorari is premature.

Justice Velascos dissent prefers thatSen. Estrada not "be subjected to the rigors of a criminal prosecution incourt"
because there is "a pending question regarding the Ombudsmans grave abuse of its discretion preceding the finding
of a probable cause to indict him." Restated bluntly, Justice Velascos dissent would like this Court to conclude that
the mere filing of the present Petition for Certiorari questioning the Ombudsmans denial of Sen. Estradas Request
should have, by itself, voided all proceedings related to the present case.

Although it is true that, in its 27 March 2014 Order, the Ombudsman denied Sen. Estradas Request, the
Ombudsman subsequently reconsidered its Order. On 7 May 2014, the same date that Sen. Estrada filed the present
Petition, the Ombudsman issued a Joint Order in OMB-C-C-13-0313 and OMB-C-C-13-0397 that furnishedSen.
Estrada with the counter-affidavits of Ruby Tuason, Dennis Cunanan, Gondelina Amata, Mario Relampagos,
Francisco Figura, Gregoria Buenaventura, and AlexisSevidal, and directed him to comment within a non-extendible
period of five days from receipt of said Order. Sen. Estrada did not file any comment, as noted in the 4 June 2014
Joint Order of the Ombudsman.

On 4 June 2014, the Ombudsman issued another Joint Order and denied Sen. Estradas Motion for Reconsideration
ofits 28 March 2014 Joint Resolution which found probable cause toindict Sen. Estrada and his corespondents with
one count of plunder and 11 counts of violation of Section 3(e), Republic Act No. 3019. In this 4 June 2014 Joint
Order, the Ombudsman stated that "[t]his Office, in fact, held in abeyance the disposition of motions for
reconsideration in this proceeding in light of its grant to Senator Estrada a period of five days from receipt of the 7
May 2014 Order to formally respond to the above-named respondents claims."

We underscore Sen. Estradas procedural omission. Sen. Estrada did not file any pleading, much less a motion for
reconsideration, to the 27 March 2014 Order inOMB-C-C-13-0313. Sen. Estrada immediately proceeded to file this
Petition for Certiorari before this Court. Sen. Estradas resort to a petitionfor certiorari before this Court stands in
stark contrast to his filing of his 7 April 2014 Motion for Reconsideration of the 28 March 2014 Joint Resolution
finding probable cause. The present Petition for Certiorari is premature.

A motion for reconsideration allows the public respondent an opportunity to correct its factual and legal errors. Sen.
Estrada, however, failed to present a compelling reason that the present Petition falls under the exceptions 41 to the
general rule that the filing of a motion for reconsideration is required prior to the filing of a petition for certiorari.
This Court has reiterated in numerous decisions that a motion for reconsideration is mandatory before the filing of a
petition for certiorari.42

Justice Velascos dissent faults the majority for their refusal to apply the Reyes case to the present Petition. Justice
Velascos dissent insists that "this Court cannot neglect to emphasize that, despite the variance in the quanta of
evidence required, a uniform observance of the singular concept of due process is indispensable in all proceedings."

As we try to follow Justice Velascos insistence, we direct Justice Velasco and those who join him in his dissent to
this Courts ruling in Ruivivar v. Office of the Ombudsman (Ruivivar),43 wherein we stated that "[t]he law can no
longer help one who had been given ample opportunity to be heard but who did not take full advantage of the
proffered chance."

The Ruivivar case, like the Reyes 44 case, was also an administrative case before the Ombudsman. The Ombudsman
found petitioner Rachel Beatriz Ruivivar administratively liable for discourtesy in the course of her official
functions and imposed on her the penalty of reprimand. Petitioner filed a motion for reconsideration of the decision
on the ground that she was not furnished copies of the affidavits of the private respondents witnesses. The
Ombudsman subsequently ordered that petitioner be furnished with copies of the counter-affidavits of private
respondents witnesses, and that petitioner should "file, within ten (10) days from receipt of this Order, such
pleading which she may deem fit under the circumstances." Petitioner received copies of the affidavits, and simply
filed a manifestation where she maintained that her receipt of the affidavits did not alter the deprivation of her right
to due process or cure the irregularity in the Ombudsmans decision to penalize her.

In Ruivivar, petitioner received the affidavits of the private respondents witnesses afterthe Ombudsman rendered a
decision against her. We disposed of petitioners deprivation of due process claim in this manner:

The CA Decision dismissed the petition for certiorari on the ground that the petitioner failed to exhaust all the
administrative remedies available to her before the Ombudsman. This ruling is legallycorrect as exhaustion of
administrative remedies is a requisite for the filing of a petition for certiorari. Other than this legal significance,
however, the ruling necessarily carries the direct and immediate implication that the petitioner has been granted the
opportunity to be heard and has refused to avail of this opportunity; hence, she cannot claim denial of due process.
In the words of the CA ruling itself: "Petitioner was given the opportunity by public respondent to rebut the
affidavits submitted by private respondent. . . and had a speedy and adequate administrative remedy but she failed to
avail thereof for reasons only known to her."

For a fuller appreciation of our above conclusion, we clarify that although they are separate and distinct concepts,
exhaustion of administrative remedies and due process embody linked and related principles. The "exhaustion"
principle applies when the ruling court or tribunal is not given the opportunity tore-examine its findings and
conclusions because of an available opportunity that a party seeking recourse against the court or the tribunals
ruling omitted to take. Under the concept of "due process," on the other hand, a violation occurs when a court or
tribunal rules against a party without giving him orher the opportunity to be heard. Thus, the exhaustion principle is
based on the perspective of the ruling court or tribunal, while due process is considered from the point of view of the
litigating party against whom a ruling was made. The commonality they share is in the same"opportunity" that
underlies both. In the context of the present case, the available opportunity to consider and appreciate the
petitioners counter-statement offacts was denied the Ombudsman; hence, the petitioner is barred from seeking
recourse at the CA because the ground she would invoke was not considered at all at the Ombudsman level. At the
same time, the petitioner who had the same opportunity to rebut the belatedly-furnished affidavits of the private
respondents witnesses was not denied and cannot now claim denial of due process because she did not take
advantage of the opportunity opened to her at the Ombudsman level.

The records show that the petitioner duly filed a motion for reconsideration on due process grounds (i.e., for the
private respondents failure to furnish her copies of the affidavits of witnesses) and on questions relating to the
appreciation of the evidence on record. The Ombudsman acted on this motion by issuing its Order of January 17,
2003 belatedly furnishing her with copies of the private respondents witnesses, together with the "directive to file,
within ten (10) days from receipt of this Order, such pleading which she may deem fit under the circumstances."

Given this opportunity to act on the belatedly-furnished affidavits, the petitioner simply chose to file a
"Manifestation" where she took the position that "The order of the Ombudsman dated 17 January 2003 supplying
her with the affidavits of the complainant does not cure the 04 November 2002 order," and on this basis prayed that
the Ombudsmans decision "be reconsidered and the complaint dismissed for lack of merit."

For her part, the private respondent filed a Comment/Opposition to Motion for Reconsideration dated 27 January
2003 and prayed for the denial of the petitioners motion.

In the February 12, 2003 Order, the Ombudsman denied the petitioners motion for reconsideration after finding no
basis to alter or modify its ruling. Significantly, the Ombudsman fully discussed in this Order the due process
significance of the petitioners failure to adequately respond to the belatedly-furnished affidavits. The Ombudsman
said:

"Undoubtedly, the respondent herein has been furnished by this Office with copies of the affidavits, which she
claims she has not received. Furthermore, the respondent has been given the opportunity to present her side relative
thereto, however, she chose not to submit countervailing evidence orargument. The respondent, therefore (sic),
cannot claim denial of due process for purposes of assailing the Decision issued in the present case. On this score,
the Supreme Court held in the case of People v. Acot, 232 SCRA 406, that "a party cannot feign denial of due
process where he had the opportunity to present his side". This becomes all the more important since, as correctly
pointed out by the complainant, the decision issued in the present case is deemed final and unappealable pursuant to
Section 27 of Republic Act 6770, and Section 7, Rule III of Administrative Order No. 07. Despite the clear
provisions of the law and the rules, the respondent herein was given the opportunity not normally accorded, to
present her side, but she opted not to do so which is evidently fatal to her cause." [emphasis supplied].

Under these circumstances, we cannot help but recognize that the petitioners cause is a lost one, not only
for her failure to exhaust her available administrative remedy, but also on due process grounds. The law can no
longer help one who had been given ample opportunity to be heard but who did not take full advantage of the
proffered chance.45

Ruivivar applies with even greater force to the present Petition because here the affidavits of Sen. Estradas
co-respondents were furnished to him beforethe Ombudsman rendered her 4 June 2014 Joint Order. In Ruivivar, the
affidavits were furnished after the Ombudsman issued a decision.
 Justice Velascos dissent cites the cases of Tatad v. Sandiganbayan 46 (Tatad) and Duterte v.
Sandiganbayan47(Duterte) in an attempt to prop up its stand. A careful reading of these cases, however, would show
that they do not stand on all fours with the present case. In Tatad, this Court ruled that "the inordinate delay in
terminating the preliminary investigation and filing the information [by the Tanodbayan] in the present case is
violative of the constitutionally guaranteed right of the petitioner to due process and to a speedy disposition of the
cases against him."48 The Tanod bayan took almost three years to terminate the preliminary investigation, despite
Presidential Decree No. 911s prescription of a ten-day period for the prosecutor to resolve a case under preliminary
investigation. We ruled similarly in Duterte, where the petitioners were merely asked to comment and were not
asked to file counter-affidavits as isthe proper procedure in a preliminary investigation. Moreover, in Duterte, the
Ombudsman took four years to terminate its preliminary investigation.

As we follow the reasoning in Justice Velascos dissent, it becomes more apparent that Sen. Estradas
present Petition for Certiorari is premature for lack of filing of a motion for reconsideration before the Ombudsman.
When the Ombudsman gave Sen. Estrada copies of the counter-affidavits and even waited for the lapse of the given
period for the filing of his comment, Sen. Estrada failed to avail of the opportunity to be heard due to his own fault.
Thus, Sen. Estradas failure cannot in any way be construed as violation of due process by the Ombudsman, much
less of grave abuse of discretion. Sen. Estrada has not filed any comment, and still chooses not to.

Third. Sen. Estradas present Petition for Certiorari constitutes forum shopping and should be summarily dismissed.

In his verification and certification of non-forum shopping in the present petition filed on 7 May 2014, Sen. Estrada
stated:

3.1 I, however, disclose that I have filed a Motion for Reconsideration dated 07 April 2014 in OMB-C-C-13-0313
and OMB-CC-13-0397, raising as sole issuethe finding of probable cause in the Joint Resolution dated 28 March
2014.

Such Motion for Reconsideration has yet to be resolved by the Office of the Ombudsman.49 (Emphasis supplied)

Sen. Estradas Motion for Reconsideration of the 28 March 2014 Joint Resolution prayed that the Ombudsman
reconsider and issue a new resolution dismissing the charges against him. However, in this Motion for
Reconsideration, Sen. Estrada assailed the Ombudsmans 27 March 2014 Joint Order denying his Request, and that
such denial is a violation of his right to due process.

8. It is respectfully submitted that the Ombudsman violated the foregoing rule [Rule 112, Section 4 of the Rules of
Court] and principles. A reading of the Joint Resolution will reveal that various pieces of evidence which Senator
Estrada was not furnished with hence, depriving him of the opportunity to controvert the same were heavily
considered by the Ombudsman in finding probable cause to charge him with Plunder and with violations of Section
3(e) of R.A. No. 3019.

xxxx

11. Notably, under dated 20 March 2014, Senator Estrada filed a "Request to be Furnished with Copies of Counter-
Affidavits of the Other Respondents, Affidavits of New Witnesses and Other Filings," pursuant to the right of a
respondent "to examine the evidence submitted by the complainant which he may not have been furnished" (Section
3[b], Rule 112 of the Rules of Court), and to "have access to the evidence on record" (Section 4[c], Rule II of the
Rules of Procedure of the Office of the Ombudsman).

However, notwithstanding the gravity of the offenses leveled against Senator Estrada and the laws vigilance in
protecting the rights of an accused, the Special Panel of Investigators, in an Order dated 27 March 2014,
unceremoniously denied the request on the ground that "there is no provision under this Offices Rules of Procedure
which entitles respondent to be furnished all the filings by the other parties x x x x." (Order dated 27 March 2013, p.
3)

As such, Senator Estrada was not properly apprised of the evidence offered against him, which were eventually
made the bases of the Ombudsmans finding of probable cause.50

The Ombudsman denied Sen. Estradas Motion for Reconsideration in its 4 June 2014 Joint Order. Clearly, Sen.
Estrada expressly raised in his Motion for Reconsideration with the Ombudsman the violation of his right to due
process, the same issue he is raising in this petition. In the verification and certification of non-forum shopping
attached to his petition docketed as G.R. Nos. 212761-62 filed on 23 June 2014, Sen. Estrada disclosed the pendency
of the present petition, as well as those before the Sandiganbayan for the determination of the existence of probable
cause. In his petition in G.R. Nos. 212761-62, Sen. Estrada again mentioned the Ombudsmans 27 March 2014 Joint
Order denying his Request.

17. Sen. Estrada was shocked not only at the Office of the Ombudsmans finding of probable cause, which he
maintains is without legal or factual basis, but also thatsuch finding of probable cause was premised on evidence not
disclosed tohim, including those subject of his Request to be Furnished with Copiesof Counter-Affidavits of the
Other Respondents, Affidavits of New Witnesses and Other Filings dated 20 March 2014.

In particular, the Office of the Ombudsman used as basis for the Joint Resolution the following documents
 i. Alexis G. Sevidals Counter-Affidavits dated 15 January and 24 February 2014;
ii. Dennis L. Cunanans Counter-Affidavits both dated 20 February 2014;
iii. Francisco B. Figuras Counter-Affidavit dated 08 January 2014;
iv. Ruby Tuasons Counter-Affidavits both dated 21 February 2014;
v. Gregoria G. Buenaventuras Counter-Affidavit dated 06 March 2014; and

vi. Philippine Daily Inquirer Online Edition news article entitled "Benhur Luy upstages Napoles in Senate
Hearing" by Norman Bordadora and TJ Borgonio, published on 06 March 2014, none of which were ever
furnished Sen. Estrada prior to the issuance of the challenged Joint Resolution, despite written request.

xxxx

II
THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED JOINT RESOLUTION DATED 28
MARCH 2014 AND CHALLENGED JOINT ORDER DATED 04 JUNE 2014, NOT ONLY ACTED WITHOUT
OR IN EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION, BUT ALSO VIOLATED SEN. ESTRADAS CONSTITUTIONAL
RIGHT TO DUE PROCESS OF LAW AND TO EQUAL PROTECTION OF THE LAWS.
xxxx
2.17 x x x x

Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman even arbitrarily limited the filing of
Sen. Estradas comment to the voluminous documents comprisingthe documents it furnished Sen. Estrada to a "non-
extendible" period offive (5) days, making it virtually impossible for Sen. Estrada to adequately study the charges
leveled against him and intelligently respond to them. The Joint Order also failed to disclose the existence of other
counter-affidavits and failed to furnish Sen. Estrada copies of such counter-affidavits. 51

Sen. Estrada has not been candid with this Court. His claim that the finding of probable cause was the "sole issue"
he raised before the Ombudsman in his Motion for Reconsideration dated 7 April 2014 is obviously false.

Moreover, even though Sen. Estrada acknowledged his receipt of the Ombudsmans 4 June 2014 Joint Order which
denied his motion for reconsideration of the 28 March 2014 Joint Resolution, Sen. Estrada did not mention that the 4
June 2014 Joint Order stated that the Ombudsman "held in abeyance the disposition of the motions for
reconsideration in this proceeding in light of its grant to [Sen. Estrada] a period of five days from receipt of the 7
May 2014 [Joint] Order to formally respond to the abovenamed co-respondents claims."

Sen. Estrada claims that his rights were violated but he flouts the rules himself.

The rule against forum shopping is not limited tothe fulfillment of the requisites of litis pendentia. 52 To determine
whether a party violated the rule against forum shopping, the most important factor to ask is whether the elements of
litis pendentia are present, or whether a final judgment in one case will amount to res judicatain
another.53Undergirding the principle of litis pendentia is the theory that a party isnot allowed to vex another more
than once regarding the same subject matter and for the same cause of action. This theory is founded on the public
policy that the same matter should not be the subject of controversy in court more than once in order that possible
conflicting judgments may be avoided, for the sake of the stability in the rights and status of persons. 54

x x x [D]espite the fact that what the petitioners filed wasa petition for certiorari, a recourse that in the usual
course and because of its nature and purpose is not covered by the rule on forum shopping. The exception from the
forum shopping rule, however, is true only where a petition for certiorari is properly or regularly invoked in the
usual course; the exception does not apply when the relief sought, through a petition for certiorari, is still pending
with or has as yet to be decided by the respondent court, tribunal or body exercising judicial or quasi-judicial body,
e.g., a motion for reconsideration of the order assailed via a petition for certiorari under Rule 65, as in the present
case. This conclusion is supported and strengthened by Section 1, Rule 65 of the Revised Rules of Court which
provides that the availability of a remedy in the ordinary course of law precludes the filing of a petition for
certiorari; under this rule, the petitions dismissal is the necessary consequence if recourse to Rule 65 is prematurely
taken.

To be sure, the simultaneous remedies the petitioners sought could result in possible conflicting rulings, or
at the very least, to complicated situations, between the RTC and the Court of Appeals. An extreme possible result is
for the appellate court to confirm that the RTC decision is meritorious, yet the RTC may at the same time reconsider
its ruling and recall its order of dismissal. In this eventuality, the result is the affirmation of the decision that the
court a quo has backtracked on. Other permutations depending on the rulings of the two courts and the timing of
these rulings are possible. In every case, our justice system suffers as this kind of sharp practice opens the system to
the possibility of manipulation; to uncertainties when conflict of rulings arise; and at least to vexation for
complications other than conflict of rulings. Thus, it matters not that ultimately the Court of Appeals may
completely agree with the RTC; what the rule on forum shopping addresses are the possibility and the actuality of its
harmful effects on our judicial system.55

Sen. Estrada resorted to simultaneous remedies by filing this Petition alleging violation of due process by
the Ombudsman even as his Motion for Reconsideration raising the very same issue remained pending with the
Ombudsman. This is plain and simple forum shopping, warranting outright dismissal of this Petition.
 SUMMARY

The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its supporting affidavits and
documents, fully complied with Sections 3 and 4 of Rule 112 of the Revised Rules of Criminal Procedure, and
Section 4, Rule II of the Rules of Procedure of the Office of the Ombudsman, Administrative Order No. 7. Both the
Revised Rules of Criminal Procedure and the Rules of Procedure of the Office of the Ombudsman require the
investigating officer to furnish the respondent with copies of the affidavits of the complainant and affidavits of his
supporting witnesses. Neither of these Rules require the investigating officer to furnish the respondent with copies of
the affidavits of his co-respondents. The right of the respondent is only "to examine the evidence submitted by the
complainant," as expressly stated in Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure. This Court
has unequivocally ruled in Paderanga that "Section 3, Rule 112 of the Revised Rules of Criminal Procedure
expressly provides that the respondent shall only have the right to submit a counter-affidavit, to examine all other
evidence submitted by the complainant and, where the fiscal sets a hearing to propound clarificatory questions to the
parties or their witnesses, to be afforded an opportunity to be present but without the right to examine or cross-
examine." Moreover, Section 4 (a, b and c) of Rule II of the Ombudsmans Rule of Procedure, read together, only
require the investigating officer to furnish the respondent with copies of the affidavits of the complainant and his
supporting witnesses.1wphi1 There is no law or rule requiring the investigating officer to furnish the respondent
with copies of the affidavits of his co-respondents.

In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and even furnished Sen. Estrada
with copies of the counter-affidavits of his co-respondents whom he specifically named, as well as the
counteraffidavits of some of other co-respondents. In the 4 June 2014 Joint Order, the Ombudsman even held in
abeyancethe disposition of the motions for reconsideration because the Ombudsman granted Sen. Estrada five days
from receipt of the 7 May 2014 Joint Order to formally respond to the claims made by his co-respondents. The
Ombudsman faithfully complied with the existing Rules on preliminary investigation and even accommodated Sen.
Estrada beyond what the Rules required. Thus, the Ombudsman could not be faulted with grave abuse of discretion.
Since this is a Petition for Certiorari under Rule 65, the Petition fails in the absence of grave abuse of discretion on
the part of the Ombudsman.

The constitutional due process requirements mandated in Ang Tibay, as amplified in GSIS, are not
applicable to preliminary investigations which are creations of statutory law giving rise to mere statutory rights. A
law can abolish preliminary investigations without running afoul with the constitutional requirements of dueprocess
as prescribed in Ang Tibay, as amplified in GSIS. The present procedures for preliminary investigations do not
comply, and were never intended to comply, with Ang Tibay, as amplified in GSIS. Preliminary investigations do not
adjudicate with finality rights and obligations of parties, while administrative investigations governed by Ang Tibay,
as amplified in GSIS, so adjudicate. Ang Tibay,as amplified in GSIS, requires substantial evidencefor a decision
against the respondent in the administrative case.In preliminary investigations, only likelihood or probability of
guiltis required. To apply Ang Tibay,as amplified in GSIS,to preliminary investigations will change the quantum of
evidence required to establish probable cause. The respondent in an administrative case governed by Ang Tibay,as
amplified in GSIS,has the right to an actual hearing and to cross-examine the witnesses against him. In preliminary
investigations, the respondent has no such rights.

Also, in an administrative case governed by Ang Tibay, as amplified in GSIS, the hearing officer must be
impartial and cannot be the fact-finder, investigator, and hearing officer atthe same time. In preliminary
investigations, the same public officer may be the investigator and hearing officer at the same time, or the fact-
finder, investigator and hearing officer may be under the control and supervisionof the same public officer, like the
Ombudsman or Secretary of Justice. This explains why Ang Tibay, as amplified in GSIS, does not apply to
preliminary investigations. To now declare that the guidelines in Ang Tibay, as amplified in GSIS, are fundamental
and essential requirements in preliminary investigations will render all past and present preliminary investigations
invalid for violation of constitutional due process. This will mean remanding for reinvestigation all criminal cases
now pending in all courts throughout the country. No preliminary investigation can proceeduntil a new law
designates a public officer, outside of the prosecution service, to determine probable cause. Moreover, those serving
sentences by final judgment would have to be released from prison because their conviction violated constitutional
due process. Sen. Estrada did not file a Motion for Reconsideration of the 27 March 2014 Order in OMB-C-C-13-
0313 denying his Request, which is the subject of the present Petition. He should have filed a Motion for R
econsideration, in the same manner that he filed a Motion for Reconsideration of the 15 May 2014 Order denying
his motion to suspend proceedings. The unquestioned rule in this jurisdiction is that certiorari will lie only if there is
no appeal or any other plain, speedy and adequate remedy in the ordinary course of law against the acts of the public
respondent.56 The plain, speedy and adequate remedy expressly provided by law is a Motion for Reconsideration of
the 27 March 2014 Order of the Ombudsman. Sen. Estrada's failure to file a Motion for Reconsideration renders this
Petition premature.

Sen. Estrada also raised in this Petition the same issue he raised in his Motion for Reconsideration of the 28
March 2014 Joint Resolution of the Ombudsman finding probable cause. While his Motion for Reconsideration of
the 28 March 2014 Joint Resolution was pending, Sen. Estrada did not wait for the resolution of the Ombudsman
and instead proceeded to file the present Petition for Certiorari. The Ombudsman issued a Joint Order on 4 June
2014 and specifically addressed the issue that Sen. Estrada is raising in this Petition. Thus, Sen. Estrada's present
Petition for Certiorari is not only premature, it also constitutes forum shopping. WHEREFORE, we DISMISS the
Petition for Certiorari in G.R. Nos. 212140-41.