To : RIL

From : AFP
Re : Legal Memo on Forum Shopping in rel. to the Degamo Case
Date : 10 January 2018

I. Proof of Law

There are two definitions of forum shopping. First, it is an act of a party against whom an adverse
judgment or order has been rendered in one forum, of seeking and possibly getting a favourable opinion
in another forum, other than by appeal or special civil action for certiorari.1 Second, forum shopping may
also be the institution of two or more actions or proceedings grounded on the same cause on the
supposition that either court would make a favourable disposition.2 Thus, forum shopping exists when
there is res judicata, and when there is litis pendentia. Either way, when wilfully and deliberately violated,
forum shopping constitutes direct contempt.

The elements of forum shopping are:

(a) identity of parties, or at least such parties as representing the same interests in both actions;3
(b) identity of rights asserted and reliefs prayed for, the relief being founded on the same facts,4
(c) the identity of the two preceding particulars, such that any judgment rendered in the other
action will, regardless of which party is successful, amount to res judicata in the action under
consideration,5

With respect to identity of parties, jurisprudence says "[t]here is identity of parties where the
parties in both actions are the same, or there is privity between them, or they are successors-in-interest
by title subsequent to the commencement of the action, litigating for the same thing and under the same
title and in the same capacity. Absolute identity of parties is not required, shared identity of interest
is sufficient to invoke the coverage of this principle. Thus, it is enough that there is a community of
interest between a party in the first case and a party in the second case even if the latter was not
impleaded in the first case.6"

Jurisprudence7 discusses the second and third requisites at the same time, because together, they
form the cause of action.

[h]ornbook is the rule that identity of causes of action does not mean absolute identity; otherwise,
a party could easily escape the operation of res judicata by changing the form of the action or the
relief sought. The test to determine whether the causes of action are identical is to ascertain

1 Orpanio v. Sps. Tomas, G.R. No. 178611, January 14, 2013, citing Sameer Overseas Placement Agency, Inc. v. Santos
2 Id.
3 Fontana Dev’t. Corp. v. Sascha Vukasinovic, infra.
4 Id.
5 Fontana Dev’t. Corp. v. Sascha Vukasinovic, G.R. No. 222424, September 21, 2016
6 Gracepark Int’l Corp. v. Eastwest Banking Corp., G.R. No. 210606, July 27, 2016 citing Degayo v. Magbanua-

Dinglasan, infra, emphasis and underscoring supplied.

7 Gracepark Int’l Corp. v. Eastwest Banking Corp., supra
 whether the same evidence will sustain both actions, or whether there is an identity in the facts
essential to the maintenance of the two actions. If the same facts or evidence would sustain both,
the two actions are considered the same, and a judgment in the first case is a bar to the subsequent
action.

A test to ascertain whether two suits relate to a single or common cause of action is: (i. ) if the same
evidence would support and sustain both the first and second causes of action; and (ii.) if the defences in
one case may be used to substantiate the complaint in the other. One may also consider if the cause of
action in the second case existed at the time of the filing of the first complaint.

Forum shopping is expressly prohibited because it trifles with and abuses court processes,
degrades the administration of justice, and congests court dockets. A wilful and deliberate violation of
the rule against forum shopping is a ground for summary dismissal of the case, and may also constitute
direct contempt.8

II. Application of the law to the facts

Forum shopping exists in the case9 against our client, Governor Degamo, because all three
elements are fulfilled.

First, there is identity of parties. The Gaudan Case filed on 29 October 2013 by private
complainant June Vincent Gaudan, is against Governor Degamo, in conspiracy with Provincial Treasurer
Danilo Mendez and Provincial Accountant Teodorico Reyes. The Koppin Case, which was filed after by
Negros Occidental 1st District Board Member Jessica Jane Villanueva-Koppin, also against the same
defendants. While the complainants are different persons, they are nevertheless identical, by reason of
their “shared identity of interest” and “community of interest” with that of the real-party-in-interest in
criminal cases, the State.

It is well-established in this jurisdiction that the People is the real party-in-interest in a criminal
case, which means allowing a private complainant to pursue a criminal action on his own is a rare
exception. Mr. Gaudan and Mrs. Koppin are interested in prosecuting said cases for the benefit of the
State, not directly for their own personal benefit, but that of the State’s, when they filed said violations
of the penal laws. More so, because the penal laws are particular to defendants as public officials, and
protects primarily the State’s interest. After their private complaints, it is the State who will, and who
is, currently, prosecuting against Governor Degamo. With these said, there is thus, identity of parties.

Second, there is identity of rights asserted and reliefs prayed for, because the relief being founded
on the same facts. With respect to rights asserted, the Gaudan case invokes these laws (i. ) “corrupt
practice under SECTION 3 (e) of REPUBLIC ACT No. 3019, otherwise known as the Anti-Graft and
Corrupt Practices Act, as amended10” and (ii.) “MALVERSATION OF PUBLIC FUNDS THROUGH
FALSIFICATION OF OFFICIAL/PUBIC DOCUMENTS, defines and penalized under Article 217,

8 Orpanio v. Sps. Tomas, supra.

9 SB-17-CRM-2423
10 Information for Crim. Case No. SB16 CRM 0467.
in relation to Articles 171 and 48 of the Revised Penal Code, as amended 11” Likewise, the Koppin case
invokes “Malversation of Public Funds, for unlawful disbursement of calamity fund entrusted to their
Province in the amount of P143,268,441.5912” and “Violation of Section 3 (e) of Republic Act (RA) No.
3019 (Anti-Graft and Corrupt Practices Act)13” and “Article 171 of the Revised Penal Code (RPC)”. They
are the same laws, and provide for the same punishments.

Even the facts of the two cases are the same. Gaudan premises provide that there is

disburse[ment] [of] the total amount of ONE HUNDRED FORTY-THREE MILLION TWO
HUNDRED SIXTY-EIGHT THOUSAND FOUR HUNDRER FORTY-ONE PESOS AND
pFIFTY-NINE CENTAVOS (PhP143,468,441.59) from the FOUR HUNDRED EIGHTY
MILLION SEVEN HUNDRED SEVENTY-FIVE THOUSAND PESOS (PhP480,775,000.00)
FY 2012 Calamity Fund released to Province of Negros Oriental, covered by the Special
Allotment Release Order (SARO) No. ROVII-12-0009202, when in truth and in fact, there
were no funds for the disbursements because the said SARO had been earlier withdrawn by the
Department of Budget and Management (DBM) on 29 June 2012, thereby causing undue injury
to the Government in the amount of ONE HUNDRED FORTY-THREE MILLION TWO
HUNDRED SIXTY-EIGHT THOUSAND FOUR HUNDRER FORTY-ONE PESOS AND
FIFTY-NINE CENTAVOS (PhP143,468,441.59).14

Moreover, the rest of the Informations15 filed for Malversation of Public Funds through Falsification of
Official / Public Documents likewise proceed from the same set of facts: that, public funds were
permitted to be taken from the “FY 2012 Calamity Fund of the Province of Negros Oriental, covered by
the Special Allotment Release Order (SARO) No. ROVII-12-0009202,” “when in truth and in fact, there
were no funds for the disbursements because the said SARO had been earlier withdrawn by the
Department of Budget and Management (DBM) on 29 June 2012, thereby causing the appropriation and
disbursement of” funds to 11 private contractors. The sum of these amounts amount to ONE HUNDRED
FORTY-THREE MILLION TWO HUNDRED SIXTY-EIGHT THOUSAND FOUR HUNDRER
FORTY-ONE PESOS AND FIFTY-NINE CENTAVOS (PhP143,468,441.59).

Meanwhile, the Koppin premises are:

b. Based on the above-mentioned SARO [No. ROVII-12-0009202] xx xx the

amount of P480,775,000.00 representing 50% of the total amount of the calamity fund
was deposited in the account of the Province of Negros Oriental xx xx

c. that the DBM had withdrawn said SARO xx xx

xx xx xx xx

11 Information for Crim. Case Nos. SB16 CRM 0468 to 0478.

12 Affidavit-Complaint of the Field Investigation Office, Office of the Ombudsman for the Visayas, Cebu
City, executed on 03 July 2014, p. 2
13 Resolution by the Office of the Ombudsman for OMB-V-C-14-0641, FIO v. Degamo, et al. promulgated on

19 June 2015. No Information was provided.

14 Information for Crim. Case No. SB16 CRM 0467.
15 Information for Crim. Case Nos. SB16 CRM 0468 to 0478.
 g. State Auditor’s Sylvia M. Almazan’s 1st Indorsement dated November 21, 2012 xx
xx states that as to the total eleven (11) contracts involving over P961 Million
Calamity Fund, disbursements amounting to P143,468,441.59 has been released as advanced
payment to the contractors.16

Note that what was cited are not mere on all-fours’ matching of facts and law, but is plainly an
illustration of the identity of causes of action. As defined in Section 2, Rule 2 of the Rules of Court, a
cause of action is the act or omission by which a party violates the right of another. Its essential elements
are as follows:

First, a right in favour of the plaintiff by whatever means and under whatever law it arises or is
created. Here, the laws as shown are the same: thre right exists in favour of the State, herein real-party-
in interest or loosely ‘plaintiff’.

Second, an obligation on the part of the named defendant to respect or not to violate such right.
Here, the obligation of the defendants are the same.

Third, an act or omission on the part of such defendant in violation of the right of the plaintiff or
constituting a breach of the obligation of the defendant to the State for which the latter may maintain an
action for recovery of damages or other appropriate relief. Both complaints refer to the same set of facts,
which alleges violation of the same laws; necessarily, any judgment rendered in the either Gaudan or
Koppin will, regardless of which party is successful, amount to res judicata to the other.

In view of the foregoing, there is forum shopping. Res ipsa loquitur.

END

16 Affidavit-Complaint of the Field Investigation Office, supra.