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2009 CRIMINAL PROCEDURE CASES

Case Title Page

JUMAQUIO vs. VILLAROSA (G.R. No. 165924 - January 19, 2009) 2

MIAQUE vs. PATAG (G.R. Nos. 170609-13 - January 30, 2009) 5

DE VERA vs DE VERA (G.R. No. 172832 - April 7, 2009) 8

POLINTAN vs PEOPLE OF THE PHILIPPINES (G.R. No. 161827 - April 21, 2009) 13

SY TIONG SHIOU vs SY CHIM (G.R. No. 174168 - March 30, 2009) 17

VERGARA, vs THE HON. OMBUDSMAN (G.R. No. 174567 - March 12, 2009) 33

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RESTYJUMAQUIO, vs.HON. JOSELITO C. VILLAROSA, in his capacity as Presiding Judge of San Jose City Regional Trial Court, Branch 39G.R. No. 165924 January 19, 2009

NACHURA, J.:Assailed through a certiorari petition before this Court are the September 7, 2004 1 and the September 28, 20042 and the 3 June 2004 resolution3 Orders of the Regional Trial Court (RTC), Branch 39 of San Jose City in Criminal Case Nos. SJC-78-04 and SJC-79-04. The case originates from an incident that happened on August 2, 2003, when petitioner Resty Jumaquio allegedly threatened and assaulted two young men, then ages 13 and 17. As narrated by the minors, in the morning of the said date, Resty, a neighbor, upon seeing the younger child, belted out his anger and yelled, " Putang ina mong bata ka namumuro ka na sa akin, at susunugin ko ‘yung pamilya mo!" 3 (You, son of a bitch, I’ve had enough of you, I’ll burn your family!). That evening too, while the minors and their mother were traversing the road fronting another neighbor’s house, petitioner, who was then having a drinking session, cursed them. Aghast, the mother cursed him back. Resty thence threw a stone towards the older child, but missed him. When the children’s father went out of their nearby house, Resty picked up another stone to fling towards the father, but the older child rushed to Resty to grab it. At that moment, Resty repeatedly punched the 17-year-old. The younger child came to the rescue, but he too received a blow on his left cheek. The family hurried home when Resty bellowed at his son for the latter to get a gun. Resty then pelted stones at the family’s house, shouting, "Putang ina ninyo, zone leader ako papatayin ko [kayong] lahat!" 4 (You, sons of bitches, I am a zone leader, I will kill you all!).

On account of that altercation, two separate Informations 5 were filed with the RTC of San Jose City, which pertinently read as follows:Criminal Case No. SJC-78-04x x x xThe undersigned Prosecutor II accuses RESTY JUMAQUIO, with the crime of GRAVE THREATS in relation to R.A. No. 7610, committed as follows:That on or about August 2, 2003, in the City of San Jose, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there, willfully, unlawfully and feloniously threaten the minor [name withheld], a 13-year-old boy, with the infliction of a wrong amounting to a crime, that is, by uttering the following words, to wit:

"PUTANG INA MONG BATA KA NAMUMURO KA NA SA AKIN AT SUSUNUGIN KO YONG PAMILYA MO"

to the damage and prejudice of [name withheld].That the above acts of the accused debases, degrades, and demeans the dignity of the complainant and impairs his normal growth and development.

CONTRARY TO LAW. April 29, 2004.x x x xCriminal Case No. SJC-79-04--x x x xThe undersigned Prosecutor II accuses RESTY JUMAQUIO, with the crime of PHYSICAL INJURIES in relation to R.A. No. 7610, committed as follows:That on or about August 2, 2003, in the City of San Jose, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the said accused, did then and there, willfully, unlawfully and feloniously attack, box and hit the minors [names withheld], 13 years old and 17 years old, respectively, thereby causing physical injuries to the latter, which required medical treatment for a period of three to five (3 to 5) days, to their damage and prejudice.That the above acts of the accused debases, degrades, and demeans the dignity of the complainant (sic) and impairs their normal growth and development.CONTRARY TO LAW. April 29, 2004.

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x x x x 6

The trial court consequently issued the warrant of arrest and fixed the bail at P80,000.00 for each case, which, on motion of petitioner, was reduced to P40,000.00 each in surety bond. 7

After posting bail and before the arraignment, petitioner moved for the quashal of the informations for being duplicitous. He argued that, under the informations, he stood charged with several crimes - grave threats and violation of Republic Act (R.A.) No. 7610, and physical injuries and another violation of the aforesaid law; that grave threats in relation to R.A. No. 7610 could not be considered a crime; and that the said separate crimes could not even be complexed, as neither may be considered to fall within the ambit of Section 10, R.A. No. 7610. 8 Following Section 3(e), Rule 117 9 of the Revised Rules on Criminal Procedure, the informations should therefore be quashed. 10

In his opposition to the motion, the City Prosecutor countered that the allegations in the questioned informations, and not the designation of the crimes therein, should prevail. The informations charged separate violations of R.A. No. 7610 - Criminal Case No. SJC-78-04 for the single offense of child abuse committed through the use of threatening words, and Criminal Case No. SJC-79-04 for the separate offense of child abuse through the infliction of physical injuries. 11 The crimes committed by petitioner would be punishable under Section 10(a) of R.A. No. 7610. 12

In the assailed September 7, 2004 Order, 13 the RTC denied the motion. The trial court further denied petitioner’s motion for reconsideration in the likewise assailed September 28, 2004 Order. 14

Discontented, petitioner filed directly before this Court the instant petition for certiorari under Rule 65.We dismiss the petition.Immediately apparent is that the instant petition disregards the hierarchy of courts. While our original jurisdiction to issue extraordinary writs is not exclusive – it is shared with the Court of Appeals (CA) and the RTC – the choice of where to file the petition for certiorari is not left entirely to the party seeking the writ. 15 The principle of hierarchy of courts serves as a general determinant of the appropriate forum for the said petition. A becoming regard for judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first-level courts should be filed with the RTC; and those against the latter, with the CA. 16 A direct recourse to this Court is warranted only where there are special and compelling reasons specifically alleged in the petition to justify such action. 17 As a court of last resort, this Court should not be burdened with the task of dealing with causes in the first instance. 18This is necessary to prevent inordinate demands upon the Court’s time and attention which are better devoted to matters within its exclusive jurisdiction, and to prevent the further over-crowding of the Court’s docket. 19

Here, petitioner directly lodged before us the certiorari petition, when he should have filed it in the CA. Clearly, the same ought to be dismissed.Furthermore, as a rule, when a motion to quash in a criminal case is denied, petitioner’s remedy is not certiorari, but to go to trial without prejudice to reiterating the special defenses invoked in his motion to quash. In the event that an adverse decision is rendered after trial on the merits, an appeal therefrom is the next appropriate legal step. 20

But even if we were to ignore petitioner’s procedural transgressions, the petition must still be dismissed for lack of merit. As correctly argued by the City Prosecutor, the questioned informations separately charge two distinct offenses of child abuse—Criminal Case No. SJC-78-04 for child abuse committed through the use of threatening words, and Criminal Case No. SJC-79-04 for child abuse through the infliction of physical injuries. Thus, contrary to his contention, petitioner is not in jeopardy of being convicted of grave threats and child abuse in the first case, and slight physical injuries and child abuse in the second. Though the crimes were erroneously designated, the averments in the informations clearly make out an offense of child abuse under Section 10(a) of R.A. No. 7610. 21 Under the said law, "child abuse" refers to the maltreatment, whether habitual or not, of the child which includes psychological and physical abuse, cruelty, emotional maltreatment or any act by deeds or words which debases, degrades or demeans the intrinsic worth and dignity of a child as a human being. 22 In the first information, petitioner is charged with child abuse by uttering debasing, demeaning and degrading words to the minor. In the second, he is charged with child abuse by inflicting physical injuries that debase, demean and degrade the dignity of the children as human beings. What controls is not the title of the information or the designation of the offense but the actual facts recited therein. 23 Moreover, an information is not duplicitous if it charges several related acts, all of which constitute a single offense, although the acts may in themselves be distinct offenses. 24 The specific acts are only alleged to complete the narration of facts. 25

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Parenthetically, the Court observes that the information in Criminal Case No. SJC-79-04 alleges that petitioner committed child abuse against two different offended parties. Inasmuch as petitioner does not object to the information on that ground, we refrain from any discussion on the matter.With the foregoing disquisition, and with the view that the petition is limited to the propriety of the trial court’s dismissal of the motion to quash, the Court finds it unnecessary to discuss the other issues raised in the petition.WHEREFORE, premises considered, the instant petition is DISMISSED.SO ORDERED. Ynares-Santiago, J., Austria-Martinez, Chico-Nazario, Nachura, and Leonardo-De Castro, * JJ.,concur

BERNIE G. MIAQUE, vs.HON. VIRGILIO M. PATAG, in his capacity as Presiding Judge of the Regional Trial Court of Iloilo City, Branch 33, VICENTE C. ARAGONA, and PEOPLE OF THE PHILIPPINES

G.R. Nos. 170609-13

January 30, 2009

R E S O L U T I O NCORONA, J.:This is a special civil action for certiorari1 assailing the orders of the Regional Trial Court (RTC) of Iloilo City, Branch 33 dated August 25, 20052 and September 19, 20053 in Criminal Case Nos. 05-61407 to 05-61411 captioned People of the Philippines versus Bernie Miaque, et al.On January 31, 2000, five Informations for libel4 were filed in the RTC of Iloilo City, Branch 26, against petitioner Bernie G. Miaque and three others.5 In an order dated February 17, 2005,6 these Informations were quashed for lack of jurisdiction over the offenses charged. Specifically, said Informations failed to allege either that private respondent (therein private complainant) Vicente Aragona actually held office in Iloilo City at the time of the commission of the offenses or that the alleged libelous remarks were printed or first published in Iloilo City.7 On June 22, 2005, Assistant Provincial Prosecutor Jerry Marañon issued a resolution recommending the filing of Informations for libel against petitioner and his co-accused. Accordingly, five new Informations for libel docketed as Criminal Case Nos. 05-61407 to 05-61411 were filed against petitioner and his co-accused in the RTC of Iloilo City, Branch 33, presided by respondent Judge Virgilio M. Patag.The new Informations were similarly worded as those previously quashed but with these added allegations: (1) Aragona, Regional State Prosecutor VI of the Department of Justice, held office at the Hall of Justice, Iloilo City or (2) the alleged libelous remarks were written, printed and published in Iloilo City (on the pertinent dates thereof). Said Informations were likewise signed and filed by Assistant Provincial Prosecutor Marañon.In view of the filing of the new Informations, petitioner filed his motions (dated August 8, 2005) not to issue warrants of arrest and, if already issued, to recall them and remand the Informations to the Provincial Prosecutor’s Office for preliminary investigation.8 In an order dated August 25, 2005, respondent judge denied petitioner’s motions on the ground that petitioner was beyond the court’s jurisdiction as he was not under the custody of the court.9 Petitioner’s motion for reconsideration was denied in an order dated September 19, 2005. Hence, this petition.Petitioner challenges the August 25, 2005 and September 19, 2005 orders of respondent judge for being contrary to law and for having been issued with grave abuse of discretion. He contends that the Informations were filed without the mandatory preliminary investigation. Moreover, the new Informations were filed by one who had no authority to do so because these were filed by the Iloilo Provincial Prosecutor’s Office and not the Iloilo City Prosecutor’s Office. Jurisdiction over the subject matter supposedly belonged to the latter. Petitioner likewise assails the refusal of respondent judge to recall the warrants of arrest issued against him.

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The Office of the Solicitor General (OSG), representing the People of the Philippines, contends that the quashed Informations were merely amended to include the allegations that Aragona actually held office in Iloilo City at the time of the commission of the offenses or that the libelous remarks were printed and first published in Iloilo City. A new preliminary investigation was therefore unnecessary. On the warrant of arrest, the OSG alleges that the trial court acquired jurisdiction over petitioner in view of the filing of his August 8, 2005 motions. The filing of the motions supposedly was tantamount to voluntarily submitting to the jurisdiction of the court.Generally, a direct resort to us in a petition for certiorari is incorrect for it violates the hierarchy of courts.10

A regard for judicial hierarchy most certainly indicates that petitions for the issuance of extraordinary writs against first level courts should be filed in the RTC and those against the latter should be filed in the Court of Appeals.11 This rule, however, may be relaxed when pure questions of law12 are raised as in this case.We grant the petition. The Informations must be quashed. One of the issues raised in the petition is the authority of the Iloilo Provincial Prosecutor’s Office to file and sign the new Informations against petitioner. The offenses charged in each of the new Informations were alleged to have been committed in Iloilo City but said Informations were filed by the Iloilo Provincial Prosecutor’s Office. Sections 9 and 11 of Presidential Decree No. 127513 provide: SEC. 9. Offices of Provincial Fiscals and City Fiscals’ Staffing. -- There shall be in each province and each subprovince; one provincial fiscal and such number of assistant provincial fiscals as may hereinafter be provided for.There shall be in each city one city fiscals and such number of assistant city fiscals as may hereinafter be provided. xxxSEC. 11. Provincial Fiscals and City Fiscals; Duties and Functions. – The provincial fiscal or the city fiscal shall:

a) xxxb) Investigate and/or cause to be investigated all charges of crimes, misdemeanors and violations of all penal laws and ordinances within their respective jurisdictions and have the necessary information or complaint prepared or made against the persons accused. xxx (emphasis supplied)

It is undisputed that the alleged acts of libel were committed in Iloilo City. Who then had the authority to file and sign the new informations against petitioner and his co-accused? The Charter of the City of Iloilo provides:14

[The City Fiscal, now City Prosecutor] shall also have charge of the prosecution of all crimes, misdemeanors and violations of city ordinances, in the Court of First Instance (now RTC) and in the Municipal Trial Court of the city, and shall discharge all the duties in respect to criminal prosecutions enjoined by law upon provincial fiscals.The city fiscal shall cause to be investigated all charges of crimes, misdemeanors, and violations of ordinances, and have the necessary informations or complaints prepared against the persons accused. xxx15 The authority to sign and file the new Informations is properly lodged with the Iloilo City Prosecutor’s Office. The Iloilo Provincial Prosecutor’s Office was clearly bereft of authority to file the new Informations against petitioner. An Information, when required by law to be filed by a public prosecuting officer, cannot be filed by another.16 The court does not acquire jurisdiction over the case because there is a defect in the Information. We held in People v. Hon. Garfin:17

It is a valid information signed by a competent officer which, among other requisites, confers jurisdiction on the court over the person of the accused and the subject matter thereof. xxx Questions relating to lack of jurisdiction may be raised at any stage of the proceeding. An infirmity in the information, such as lack of authority of the officer signing it, cannot be cured by silence, acquiescence, or even by express consent.The foregoing considered, the Informations corresponding to Criminal Case Nos. 05-61407 to 05-61411 were fatally defective. The common infirmity in the Informations constituted a jurisdictional defect that could not be cured.18 There was no point in proceeding under a defective Information that could never be the basis of a valid conviction.19

WHEREFORE, the petition is hereby GRANTED. The orders of the Regional Trial Court of Iloilo City, Branch 33 dated August 25, 2005 and September 19, 2005 are hereby REVERSED AND SET ASIDE.

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Criminal Case Nos. 05-61407 to 05-61411 are DISMISSED WITHOUT PREJUDICE to the filing of new Informations by an authorized officer. The warrants of arrest issued are likewise QUASHED. SO ORDERED.

ROSARIO T. DE VERA vs GEREN A. DE VERAG.R. No. 172832 April 7, 2009D E C I S I O NNACHURA, J.:Before the Court is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking to reverse the February 28, 2006 Decision1 of the Court of Appeals (CA) and its May 24, 2006 Resolution2 in CA-G.R. SP No. 91916.The facts, as found by the CA, are as follows:

Petitioner Rosario T. de Vera accused her spouse Geren A. de Vera (Geren) and Josephine F. Juliano (Josephine) of Bigamy. They were thus indicted in an Information, the accusatory portion of which reads:

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That on or about the 31st day of July, 2003, in the Municipality of San Juan, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the said accused Geren A. De Vera being previously united in lawful marriage with Rosario Carvajal Tobias-De Vera, and without said marriage having been legally dissolved, did, then and there willfully, unlawfully and feloniously contract a second marriage with accused Josephine Juliano y Francisco, who likewise has previous knowledge that accused Geren A. De Vera’s previous marriage with Rosario T. De Vera is still valid and subsisting, said second marriage having all the essential requisites for its validity.CONTRARY TO LAW.3

Upon arraignment, Geren pleaded "Guilty." However, in a Motion4 dated April 8, 2005, he prayed that he be allowed to withdraw his plea in the meantime in order to prove the mitigating circumstance of voluntary surrender. The motion was opposed5 by petitioner on the ground that not all the elements of the mitigating circumstance of "voluntary surrender" were present. She added that "voluntary surrender" was raised only as an afterthought, as Geren had earlier invoked a "voluntary plea of guilty" without raising the former. Finally, she posited that since the case was ready for promulgation, Geren’s motion should no longer be entertained.In an Order6 dated June 6, 2005, the Regional Trial Court (RTC) granted Geren’s motion and appreciated the mitigating circumstance of voluntary surrender in the determination of the penalty to be imposed. Thus, on even date, the RTC promulgated Geren’s Sentence,7 the dispositive portion of which reads:WHEREFORE, the court finds accused Geren A. de Vera guilty beyond reasonable doubt of the crime of bigamy as charged in the Information and there being two (2) mitigating circumstances (Plea of guilty and voluntary surrender), and no aggravating circumstance and applying the provision of Article 349 in relation to paragraph 5, Article 64, Revised Penal Code, as amended, and the Indeterminate Sentence Law, accused is hereby sentenced to suffer the penalty of 6 MONTHS of ARRESTO MAYOR, as minimum to FOUR (4) YEARS, TWO (2) MONTHS ofPRISION CORRECCIONAL, as maximum.No pronouncement as to cost.SO ORDERED.Unsatisfied, petitioner moved for the partial reconsideration8 of the decision but the same was denied in an Order9dated August 25, 2005.In the meantime, on June 8, 2005, Geren applied for probation10 which was favorably acted upon by the RTC by referring it to the Probation Officer of San Juan, Metro Manila.11

For failure to obtain favorable action from the RTC, petitioner instituted a special civil action for certiorari before the CA. However, she failed to persuade the CA which rendered the assailed decision affirming the RTC Order and Sentence, and the assailed resolution denying her motion for reconsideration. In sustaining the appreciation of the mitigating circumstance of voluntary surrender, the CA maintained that all its requisites were present.Hence, the instant petition based on the following grounds:THE HONORABLE COURT OF APPEALS HAS DECIDED QUESTIONS OF SUBSTANCE IN A WAY NOT PROBABLY IN ACCORD WITH LAW AND WITH APPLICABLE DECISIONS OF THIS HONORABLE COURT WHEN:

A. IT ERRONEOUSLY FAILED TO APPLY THE RULING IN PEOPLE VS. CAGAS REGARDING THE REQUISITES OF VOLUNTARY SURRENDER TO BE APPRECIATED IN THE INSTANT CASE.B. IT INCORRECTLY AFFIRMED THE ORDER AND SENTENCE BOTH DATED JUNE 6, 2005 AND THE ORDER DATED AUGUST 25, 2005 RENDERED BY THE PUBLIC RESPONDENT IN APPRECIATING THE MITIGATING CIRCUMSTANCES OF PLEA OF GUILTY AND VOLUNTARY SURRENDER IN FAVOR OF THE PRIVATE RESPONDENT IN CRIMINAL CASE NO. 130139, AN ACT THAT WARRANTS THIS HONORABLE COURT TO EXERCISE ITS APPELLATE JUDICIAL DISCRETION.12

The petition lacks merit.While we are called upon to resolve the sole issue of whether the CA correctly denied the issuance of the writ of certiorari, we cannot ignore the procedural issues which the trial and appellate courts failed to appreciate.In filing her motion for reconsideration before the RTC and her petition for certiorari before the CA, petitioner sought the modification of the court’s judgment of conviction against Geren, because of the allegedly mistaken application of the mitigating circumstance of "voluntary surrender." The eventual relief

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prayed for is the increase in the penalty imposed on Geren. Is this action of petitioner procedurally tenable?Section 7, Rule 120 of the Revised Rules of Criminal Procedure provides:Sec. 7. Modification of judgment. – A judgment of conviction may, upon motion of the accused, be modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right to appeal, or has applied for probation.Simply stated, in judgments of conviction, errors in the decision cannot be corrected unless the accused consents thereto; or he, himself, moves for reconsideration of, or appeals from, the decision.13

Records show that after the promulgation of the judgment convicting Geren of bigamy, it was petitioner (as private complainant) who moved for the reconsideration14 of the RTC decision. This was timely opposed by Geren, invoking his right against double jeopardy.15 Although the trial court correctly denied the motion for lack of merit, we would like to add that the same should have been likewise denied pursuant to the above-quoted provision of the Rules.As explained in People v. Viernes,16 the rule on the modification of judgments of conviction had undergone significant changes before and after the 1964 and 1985 amendments to the Rules. Prior to the 1964 Rules of Court, we held in various cases17 that the prosecution (or private complainant) cannot move to increase the penalty imposed in a promulgated judgment, for to do so would place the accused in double jeopardy. The 1964 amendment, however, allowed the prosecutor to move for the modification or the setting aside of the judgment before it became final or an appeal was perfected. In 1985, the Rules was amended to include the phrase "upon motion of the accused," effectively resurrecting our earlier ruling prohibiting the prosecution from seeking a modification of a judgment of conviction. Significantly, the present Rules retained the phrase "upon motion of the accused." Obviously, the requisite consent of the accused is intended to protect him from having to defend himself anew from more serious offenses or penalties which the prosecution or the court may have overlooked.18

Equally important is this Court’s pronouncement in People v. Court of Appeals19 on the propriety of a special civil action for certiorari assailing a judgment of conviction. In that case, the trial court convicted the accused of homicide. The accused thereafter appealed his conviction to the CA which affirmed the judgment of the trial court but increased the award of civil indemnity. The Office of the Solicitor General (OSG), on behalf of the prosecution, then filed before this Court a petition for certiorari under Rule 65, alleging grave abuse of discretion. The OSG prayed that the appellate court’s judgment be modified by convicting the accused of homicide without appreciating in his favor any mitigating circumstance. In effect, the OSG wanted a higher penalty to be imposed. The Court declared that the petition constituted a violation of the accused’s right against double jeopardy; hence, dismissible. Certainly, we are not inclined to rule differently.Indeed, a petition for certiorari may be resorted to on jurisdictional grounds. In People v. Veneracion,20 we entertained the petition for certiorari initiated by the prosecution to resolve the issue of whether the RTC gravely abused its discretion in imposing a lower penalty. In that case, the trial judge, fully aware of the appropriate provisions of the law, refused to impose the penalty of death because of his strong personal aversion to the death penalty law, and imposed instead reclusion perpetua. In resolving the case in favor of the prosecution, the Court concluded that the RTC gravely abused its discretion, and remanded the case to the trial court for the imposition of the proper penalty. By so doing, we allowed a modification of the judgment not on motion of the accused but through a petition initiated by the prosecution. But it was an exceptional case. Here and now, we reiterate the rule that review is allowed only in apparently void judgments where there is a patent showing of grave abuse of discretion amounting to lack or excess of jurisdiction. The aggrieved parties, in such cases, must clearly show that the public respondent acted without jurisdiction or with grave abuse of discretion amounting to lack of jurisdiction.21

Grave abuse of discretion defies exact definition, but it generally refers to "capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction." The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility.22 Obviously, no grave abuse of discretion may be attributed to a court simply because of its alleged misappreciation of the mitigating circumstance of voluntary surrender. Consequently, the trial court’s action cannot come within the ambit of the writ’s limiting

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requirement of excess or lack of jurisdiction. Thus, the trial court’s action becomes an improper object of, and therefore non-reviewable by, certiorari.23

Even if we dwell on the merit of the case, which had already been done by the appellate court, we find no cogent reason to grant the instant petition.For voluntary surrender to be appreciated, the following requisites should be present: 1) the offender has not been actually arrested; 2) the offender surrendered himself to a person in authority or the latter’s agent; and 3) the surrender was voluntary.24 The essence of voluntary surrender is spontaneity and the intent of the accused to give himself up and submit himself to the authorities either because he acknowledges his guilt or he wishes to save the authorities the trouble and expense that may be incurred for his search and capture.25 Without these elements, and where the clear reasons for the supposed surrender are the inevitability of arrest and the need to ensure his safety, the surrender is not spontaneous and, therefore, cannot be characterized as "voluntary surrender" to serve as a mitigating circumstance.26

Petitioner is correct in saying that in People v. Cagas27 and in People v. Taraya,28 the Court added a fourth requisite before "voluntary surrender" may be appreciated in favor of the accused – that there is no pending warrant of arrest or information filed. Since the warrant of arrest had been issued, petitioner insists that arrest was imminent and the "surrender" could not be considered "voluntary."In Cagas, after the stabbing incident, the accused ran to the upper portion of the cemetery where a police officer caught up with him. Thereupon, he voluntarily gave himself up. The Court held that if the accused did then and there surrender, it was because he was left with no choice. Thus, the "surrender" was not spontaneous.In Taraya, when the accused learned that the police authorities were looking for him (because of a warrant for his arrest), he immediately went to the police station where he confessed that he killed the victim. Notwithstanding such surrender and confession to the police, the Court refused to appreciate the mitigating circumstance in his favor.Lastly, in People v. Barcino, Jr.,29 the accused surrendered to the authorities after more than one year from the incident in order to disclaim responsibility for the killing of the victim. The Court refused to mitigate the accused’s liability because there was no acknowledgment of the commission of the crime or the intention to save the government the trouble and expense in his search and capture; and there was a pending warrant for his arrest.Certainly, we cannot apply the same conclusion to the instant case. Cagas is not applicable because the accused therein did not surrender but was caught by the police. In Taraya, the warrant of arrest had, in fact, been issued and was forwarded to the proper authorities for implementation. In Barcino, it was a year after the commission of the crime when the accused went to the police station, not for purposes of acknowledging his culpability, nor to save the government the expense and trouble of looking for and catching him, but actually to deny his culpability.In this case, it appears that the Information was filed with the RTC on February 24, 2005. On March 1, 2005, the court issued an Order finding probable cause for the accused to stand trial for the crime of bigamy and for the issuance of a warrant of arrest. In the afternoon of the same day, Geren surrendered to the court and filed a motion for reduction of bail. After the accused posted bail, there was no more need for the court to issue the warrant of arrest.30

The foregoing circumstances clearly show the voluntariness of the surrender. As distinguished from the earlier cases, upon learning that the court had finally determined the presence of probable cause and even before the issuance and implementation of the warrant of arrest, Geren already gave himself up, acknowledging his culpability. This was bolstered by his eventual plea of guilt during the arraignment. Thus, the trial court was correct in appreciating the mitigating circumstance of "voluntary surrender."We would like to point out that the mere filing of an information and/or the issuance of a warrant of arrest will not automatically make the surrender "involuntary." In People v. Oco,31 the Court appreciated the mitigating circumstance because immediately upon learning that a warrant for his arrest was issued, and without the same having been served on him, the accused surrendered to the police. Thus, it is clear that notwithstanding the pendency of a warrant for his arrest, the accused may still be entitled to the mitigating circumstance in case he surrenders, depending on the actual facts surrounding the very act of giving himself up.WHEREFORE, premises considered, the petition is DENIED. The Court of Appeals February 28, 2006 Decision and its May 24, 2006 Resolution in CA-G.R. SP No. 91916 are AFFIRMED.SO ORDERED.

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SESINANDO POLINTAN vs PEOPLE OF THE PHILIPPINESG.R. No. 161827April 21, 2009

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x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x R E S O L U T I O N CARPIO, J.: The Case This is a petition[1] for review under Rule 45 of the Rules of Court. The petition challenges the 21 October 2003 and 21 January 2004 Resolutions[2] of the Court of Appeals in CA-G.R. CR No. 26859. The Court of Appeals dismissed the appeal of Sesinando Polintan (Polintan) for failure to file appellant’s brief within the time prescribed. The Facts Assistant City Prosecutor Ralph S. Lee filed two informations[3] dated 29 June 1993 with the Regional Trial Court (RTC), National Capital Judicial Region, Branch 224, Quezon City, charging Polintan with violation of Batas Pambansa Bilang 22. The two cases were docketed as Criminal Case Nos. Q-93-46199 and Q-93-46200. During his arraignment on 28 August 1993, Polintan pleaded not guilty to both charges. On 14 September 1993, the RTC provisionally dismissed the two cases because Polintan agreed to settle the civil aspect of the cases. On 30 August 1994, the RTC granted the motion to revive the two cases. On 9 November 1994, the RTC set the presentation of evidence. The prosecution presented several pieces of evidence: (1) testimonies of Dolores Cajucom and Luisito Rivera; (2) photographs of Polintan; (3) cash vouchers of David Motors and Marketing Corporation; (4) signatures of Polintan; (5) chattel mortgages; (6) promissory notes; (7) City Trust Banking Corporation Check Nos. 441615 and 618149; (8) drawn against insufficient funds notations; (9) demand letters; (10) memorandum of preliminary investigation, and (11) complaint-affidavit. Polintan failed to appear during the presentation of evidence. The records showed that a notice of hearing was mailed to Polintan on 8 March 1995 and that the notice was not returned to the RTC. Thus, the RTC considered the two cases submitted for decision based on the evidence presented by the prosecution. In a Decision[4] dated 17 January 1996, the RTC found Polintan guilty beyond reasonable doubt of two counts of violation of Batas Pambansa Bilang 22. The RTC held that:

[T]he case of the prosecution is air tight and conclusive to convict the accused. The inability and/or failure of the accused to appear and testify in these two (2) cases must be probably due to his belief and conviction that he could not rebut the incontrovertible testimonial and documentary evidence of the prosecution. The accused must have realized the futility of disproving prosecution evidence. The prosecution has proved and established the guilt of the accused Sesinando Polintan beyond reasonable doubt. The prosecution has established that the accused issued and has drawn the two (2) subject checks of City Trust Banking Corp. against insufficient funds (DAIF) which were dishonored when presented for payment and encashment at the bank as evidenced by the notation — DAIF — on the dorsal side of the said two (2) checks. The accused could not therefore escape from his culpability and liability to the private complainant for the issuance of the two (2) dishonored checks.[5]

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Polintan filed an omnibus motion[6] for new trial and reconsideration of the 17 January 1996 Decision. In an Order[7] dated 24 May 2002, the RTC denied the omnibus motion. On 3 July 2002, Polintan filed a notice[8] of appeal. In an Order[9] dated 14 August 2002, the RTC denied the notice of appeal for being filed out of time. Polintan filed a motion[10] for reconsideration of the 14 August 2002 Order. In an Order[11] dated 18 November 2002, the RTC, “[i]n the higher interest of justice,” granted the motion for reconsideration. The Ruling of the Court of Appeals In a Resolution[12] dated 8 August 2003, the Court of Appeals granted Polintan’s three motions for extension of time to file his appellant’s brief and directed Polintan to show cause why his appeal should not be dismissed. In a Resolution dated 21 October 2003, the Court of Appeals considered the appeal abandoned and dismissed it. In a very urgent ex-parte motion[13] dated 27 October 2003, Polintan prayed, “in the broader interest of justice and fair play,” that his brief be admitted. Polintan filed a motion[14] for reconsideration of the 21 October 2003 Resolution. In a Resolution dated 21 January 2004, the Court of Appeals denied the motion. The Court of Appeals held that:

In his Very Urgent Ex-Parte Motion to Admit Appellant’s Brief, accused-appellant’s counsel stated that he instructed Mr. Perez to file said brief on June 11, 2003 before he left for Camarines Sur. However, when he reported to the law firm on October 22, 2003, he learned that Mr. Perez failed to file it. Granting that Mr. Perez overlooked such responsibility, and, if indeed said appellant’s brief was ready and about to be filed on June 11, 2003, this Court is in a quandary why the appellant’s brief was only filed on October 29, 2003, a week after appellant’s counsel allegedly reported back to the law firm, when said law firm is just a few meters away from this Court. x x x x Records show that the accused-appellant was granted by this Court a total of seventy-five (75) days extension, from March 30, 2003 or until June 13, 2003. Yet, he failed to do so, which failure can only be construed as lack of interest to pursue his appeal.[15]

Hence, the instant petition. Polintan claims that the Rules of Court, specifically Section 8 of Rule 124, should not be followed. The Ruling of this Court The petition is unmeritorious. Paragraph 1, Section 8, Rule 124 of the Rules of Court states that:

The Court of Appeals may, upon motion of the appellee or motu proprio and with notice to the appellant in either case, dismiss the appeal if the appellant fails to file his brief within the time prescribed by this Rule, except where the appellant is represented by a counsel de oficio. (Emphasis supplied)

Section 8 is clear — the Court of Appeals may, motu proprio and with notice to the appellant, dismiss the appeal if the appellant fails to file his brief within the time prescribed, except where the appellant is represented by a counsel de oficio. In the present case, (1) the Court of Appeals, motu proprio, dismissed the appeal; (2) the Court of Appeals furnished Polintan with notice to show cause why his appeal should not be dismissed; (3)

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Polintan failed to file his brief within the time prescribed; and (4) Polintan was not represented by a counsel de oficio. The right to appeal is not a natural right and is not part of due process. It is merely a statutory privilege and must be exercised in accordance with the law. InSpouses Ortiz v. Court of Appeals,[16] the Court held that:

[T]he right to appeal is not a natural right or a part of due process; it is merely a statutory privilege, and may be exercised only in the manner and in accordance with the provisions of the law. The party who seeks to avail of the same must comply with the requirements of the Rules, Failing [sic] to do so, the right to appeal is lost. Rules of Procedure are required to be followed.

The negligence and mistakes of counsel are binding on the client. [17] The Court cannot tolerate Polintan’s habitual failure to follow the Rules of Court and his flimsy excuses. First, Polintan failed to appear before the RTC during the presentation of evidence. He alleged that he was not duly notified of the hearing because he had moved from the address on record. However, when members of the Criminal Intelligence Division of Camp Crame apprehended him, he gave the same address. Second, Polintan failed to file his notice of appeal within the time prescribed. He alleged that his counsel was in Naga City. Third, Polintan failed to file his appellant’s brief within the time prescribed. He alleged that his counsel was in Camarines Sur. Strict compliance with the Rules of Court is indispensable for the orderly and speedy disposition of justice.[18] The Rules must be followed, otherwise, they will become meaningless and useless. WHEREFORE, the Court DENIES the petition. The Court AFFIRMS the 21 October 2003 and 21 January 2004 Resolutions of the Court of Appeals in CA-G.R. CR No. 26859. SO ORDERED.

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SY TIONG SHIOU, JUANITA TAN SY, JOLIE ROSS TAN, ROMER TAN, CHARLIE TAN, and JESSIE JAMES TAN vs SY CHIM and FELICIDAD CHAN SY, G.R. No. 174168 March 30, 2009

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SY CHIM and FELICIDAD CHAN SY vs SY TIONG SHIOU and JUANITA TAN,G.R. No. 179438

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D E C I S I O N

TINGA, J.:

These consolidated petitions involving the same parties. although related, dwell on different issues.

G.R. No. 174168.

This is a petition for review1[1] assailing the decision and resolution of the Court of Appeals dated 31 May 2006 and 8 August 2006, respectively, in CA-G.R. SP No. 91416.2[2]

On 30 May 2003, four criminal complaints were filed by Sy Chim and Felicidad Chan Sy (Spouses Sy) against Sy Tiong Shiou, Juanita Tan Sy, Jolie Ross Tan, Romer Tan, Charlie Tan and Jessie James Tan (Sy Tiong Shiou, et al.) before the City Prosecutor’s Office of Manila. The cases were later consolidated. Two of the complaints, I.S. Nos. 03E-15285 and 03E-15286,3[3] were for alleged violation of Section 74 in relation to Section 144 of the Corporation Code. In these complaints, the Spouses Sy averred that they are stockholders and directors of Sy Siy Ho & Sons, Inc. (the corporation) who asked Sy Tiong Shiou, et al., officers of the corporation, to allow them to inspect the books and records of the

1?[1]Rollo (G.R. No. 174168), pp. 10-33.

2

?[2]Id. at 37-60; penned by Associate Justice Renato S. Dacudao with the concurrence of Associate Justice Remedios Salazar Fernando and Associate Justice Lucas P. Bersamin.3

?[3]Id. at 85-94.

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business on three occasions to no avail. In a letter4[4] dated 21 May 2003, Sy Tiong Shiou, et al. denied the request, citing civil and intra-corporate cases pending in court.5[5]

In the two other complaints, I.S. No. 03E-15287 and 03E-15288,6[6] Sy Tiong Shiou was charged with falsification under Article 172, in relation to Article 171 of the Revised Penal Code (RPC), and perjury under Article 183 of the RPC. According to the Spouses Sy, Sy Tiong Shiou executed under oath the 2003 General Information Sheet (GIS) wherein he falsely stated that the shareholdings of the Spouses Sy had decreased despite the fact that they had not executed any conveyance of their shares.7[7]

Sy Tiong Shiou, et al. argued before the prosecutor that the issues involved in the civil case for accounting and damages pending before the RTC of Manila were intimately related to the two criminal complaints filed by the Spouses Sy against them, and thus constituted a prejudicial question that should require the suspension of the criminal complaints. They also argued that the Spouses Sy’s request for inspection was premature as the latter’s concern may be properly addressed once an answer is filed in the civil case. Sy Tiong Shiou, on the other hand, denied the accusations against him, alleging that before the 2003 GIS was submitted to the Securities and Exchange Commission (SEC), the same was shown to respondents, who at that time were the President/Chairman of the Board and Assistant Treasurer of the corporation, and that they did not object to the entries in the GIS. Sy Tiong Shiou also argued that the issues raised in the pending civil case for accounting presented a prejudicial question that necessitated the suspension of criminal proceedings.

On 29 December 2003, the investigating prosecutor issued a resolution recommending the suspension of the criminal complaints for violation of the Corporation Code and the dismissal of the criminal complaints for falsification and perjury against Sy Tiong Shiou.8[8] The reviewing prosecutor approved the resolution. The Spouses Sy moved for the reconsideration of the resolution, but their motion was denied on 14 June 2004.9[9] The Spouses Sy thereupon filed a petition for review with the Department of Justice (DOJ), which the latter denied in a resolution issued on 02 September 2004.10[10]

Their subsequent motion for reconsideration was likewise denied in the resolution of 20 July 2005.11[11]

The Spouses Sy elevated the DOJ’s resolutions to the Court of Appeals through a petition for certiorari, imputing grave abuse of discretion on the part of the DOJ. The appellate court granted the petition12[12] and directed the City Prosecutor’s Office to file the appropriate informations against Sy Tiong Shiou, et al. for violation of Section 74, in relation to Section 144 of the Corporation Code and of Articles 172 and 183 of the RPC. The appellate court ruled that the civil case for accounting and damages cannot be deemed prejudicial to the maintenance or prosecution of a criminal action for violation of Section 74 in relation to Section 144 of the Corporation Code since a finding in the civil case that respondents mishandled or misappropriated the funds would not be determinative of their guilt or innocence in the criminal complaint. In the same manner, the criminal complaints for falsification and/or perjury should not have been dismissed on the ground of prejudicial question because the accounting case is unrelated and

4?[4]Id. at 83.

5?[5]Civil Case No. 03-106456-00 is for Accounting and Damages pending before the Regional Trial Court of Manila, Branch

46. Incidentally, the other petition, G. R. No. 179438 is an offshoot of this civil case.6

?[6]Id. at 95-104.7

?[7]The 2003 GIS, compared to the 2002 GIS showed a decrease from 33.75 % to only 17.40 % ownership of the outstanding capital stock of the corporation for Sy Chim and a decrease from 16.88% to 8.70% ownership of the outstanding capital stock for Felicidad Chan Sy.8

?[8]Id. at 111-118; penned by Assistant City prosecutor Bernardino L. Cabiles.9

?[9]Id. at 137-143.10?[10]Id. at 183-185.

11?[11]Id. at 207-209.

12?[12]Id. at 37-66; Decision dated 31 May 2006.

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not necessarily determinative of the success or failure of the falsification or perjury charges. Furthermore, the Court of Appeals held that there was probable cause that Sy Tiong Shiou had committed falsification and that the City of Manila where the 2003 GIS was executed is the proper venue for the institution of the perjury charges. Sy Tiong Shiou, et al. sought reconsideration of the Court of Appeals decision but their motion was denied.13[13]

On 2 April 2008, the Court ordered the consolidation of G.R. No. 179438 with G.R. No. 174168.14

[14]

Sy Tiong Shiou, et al. argue that findings of the DOJ in affirming, modifying or reversing the recommendations of the public prosecutor cannot be the subject of certiorari or review of the Court of Appeals because the DOJ is not a quasi-judicial body within the purview of Section 1, Rule 65 of the Rules of Court. Petitioners rely on the separate opinion of former Chief Justice Andres R. Narvasa in Roberts, Jr. v. Court of Appeals,15[15] wherein he wrote that this Court should not be called upon to determine the existence of probable cause, as there is no provision of law authorizing an aggrieved party to petition for such a determination.16[16] In any event, they argue, assuming without admitting that the findings of the DOJ may be subject to judicial review under Section 1, Rule 65 of the Rules of Court, the DOJ has not committed any grave abuse of discretion in affirming the findings of the City Prosecutor of Manila. They claim that the Spouses Sy’s request for inspection was not made in good faith and that their motives were tainted with the intention to harass and to intimidate Sy Tiong Shiou, et al. from pursuing the criminal and civil cases pending before the prosecutor’s office and the Regional Trial Court (RTC) of Manila, Branch 46. Thus, to accede to the Spouses Sy’s request would pose serious threats to the existence of the corporation.17[17] Sy Tiong Shiou, et al. aver that the RTC had already denied the motion for production and inspection and instead ordered petitioners to make the corporate records available to the appointed independent auditor. Hence, the DOJ did not commit any grave abuse of discretion in affirming the recommendation of the City Prosecutor of Manila.18[18] They further argue that adherence to the Court of Appeals’ ruling that the accounting case is unrelated to, and not necessarily determinative of the success of, the criminal complaint for falsification and/or perjury would unnecessarily indict petitioner Sy Tiong Shiou for the said offenses he may not have committed but only because of an outcome unfavorable to him in the civil action.19[19]

Indeed, a preliminary proceeding is not a quasi-judicial function and that the DOJ is not a quasi-judicial agency exercising a quasi-judicial function when it reviews the findings of a public prosecutor regarding the presence of probable cause.20[20] Moreover, it is settled that the preliminary investigation proper, i.e., the determination of whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be subjected to the expense, rigors and embarrassment of trial, is the function of the prosecution.21[21] This Court has adopted a policy of non-interference in the conduct of preliminary investigations and leaves to the investigating prosecutor sufficient latitude of discretion in the determination of what constitutes sufficient evidence as will establish probable cause for the filing of information against the supposed offender.22[22]

13?[13]Id. at 71-72; Resolution dated 8 August 2006.

14?[14]Id. at 528-529.

15?[15]324 Phil. 568, 619-620 (1996).

16?[16]Rollo, (G.R. No. 174168), pp. 22-23.

17?[17]Id. at 27.

18?[18]Id. at 28

19?[19]Id. at 29.

20?[20]Santos v. Go, G.R. No. 156081, 19 October 2005, 473 SCRA 350, 360-361.

21?[21]Cabahug v. People, 426 Phil. 490, 499 (2002).

22

17

As in every rule, however, there are settled exceptions. Hence, the principle of non-interference does not apply when there is grave abuse of discretion which would authorize the aggrieved person to file a petition for certiorari and prohibition under Rule 65, 1997 Rules of Civil Procedure.23[23]

As correctly found by the Court of Appeals, the DOJ gravely abused its discretion when it suspended the hearing of the charges for violation of the Corporation Code on the ground of prejudicial question and when it dismissed the criminal complaints.

A prejudicial question comes into play generally in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the criminal action may proceed since howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case. The reason behind the principle of prejudicial question is to avoid two conflicting decisions. It has two essential elements: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed.24[24]

The civil action and the criminal cases do not involve any prejudicial question.

The civil action for accounting and damages, Civil Case No. 03-106456 pending before the RTC Manila, Branch 46, seeks the issuance of an order compelling the Spouses Sy to render a full, complete and true accounting of all the amounts, proceeds and fund paid to, received and earned by the corporation since 1993 and to restitute it such amounts, proceeds and funds which the Spouses Sy have misappropriated. The criminal cases, on the other hand, charge that the Spouses Sy were illegally prevented from getting inside company premises and from inspecting company records, and that Sy Tiong Shiou falsified the entries in the GIS, specifically the Spouses Sy’s shares in the corporation. Surely, the civil case presents no prejudicial question to the criminal cases since a finding that the Spouses Sy mishandled the funds will have no effect on the determination of guilt in the complaint for violation of Section 74 in relation to Section 144 of the Corporation Code; the civil case concerns the validity of Sy Tiong Shiou’s refusal to allow inspection of the records, while in the falsification and perjury cases, what is material is the veracity of the entries made by Sy Tiong Shiou in the sworn GIS.

Anent the issue of probable cause, the Court also finds that there is enough probable cause to warrant the institution of the criminal cases.

The term probable cause does not mean ‘actual and 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.25[25]

?[22]Yupangco Cotton Mills, Inc., v. Mendoza, G.R. No. 139912, 31 March 2005, 454 SCRA 386, 406.23

?[23]Sistoza v. Desierto, 437 Phil. 117, 129 (2002)24

?[24]Tuanda v. Sandiganbayan, 319 Phil. 460, 470 (1995).25

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In order that probable cause to file a criminal case may be arrived at, or in order to engender the well-founded belief that a crime has been committed, the elements of the crime charged should be present. This is based on the principle that every crime is defined by its elements, without which there should be–at the most–no criminal offense.26[26]

Section 74 of the Corporation Code reads in part:

x x x

The records of all business transactions of the corporation and the minutes of any meeting shall be open to inspection by any director, trustee, stockholder or member of the corporation at reasonable hours on business days and he may demand, in writing, for a copy of excerpts from said records or minutes, at his expense.

Any officer or agent of the corporation who shall refuse to allow any director, trustee, stockholder or member of the corporation to examine and copy excerpts from its records or minutes, in accordance with the provisions of this Code, shall be liable to such director, trustee, stockholder or member for damages, and in addition, shall be guilty of an offense which shall be punishable under Section 144 of this Code: Provided, That if such refusal is made pursuant to a resolution or order of the Board of Directors or Trustees, the liability under this section for such action shall be imposed upon the directors or trustees who voted for such refusal: and Provided, further, That it shall be a defense to any action under this section that the person demanding to examine and copy excerpts from the corporation's records and minutes has improperly used any information secured through any prior examination of the records or minutes of such corporation or of any other corporation, or was not acting in good faith or for a legitimate purpose in making his demand.

Meanwhile, Section 144 of the same Code provides:

Sec. 144. Violations of the Code.—Violations of any of the provisions of this Code or its amendments not otherwise specifically penalized therein shall be punished by a fine of not less than one thousand (P1,000.00) pesos but not more than ten thousand (P10,000.00) pesos or by imprisonment for not less than thirty (30) days but not more than five (5) years, or both, in the discretion of the court. If the violation is committed by a corporation, the same may, after notice and hearing, be dissolved in appropriate proceedings before the Securities and Exchange Commission: Provided, That such dissolution shall not preclude the institution of appropriate action against the director, trustee or officer of the corporation responsible for said violation: Provided, further, That nothing in this section shall be construed to repeal the other causes for dissolution of a corporation provided in this Code.

In the recent case of Ang-Abaya, et al. v. Ang, et al.,27[27] the Court had the occasion to enumerate the requisites before the penal provision under Section 144 of the Corporation Code may be applied in a

?[25]Pilapil v. Sandiganbayan, G.R. No. 101978, 7 April 1993, 221 SCRA 349, 360.26

?[26]G.R. No. 178511, 4 December 2008, citing Duterte v. Sandiganbayan, G.R. No. 130191, April 27, 1998, 289 SCRA 721.27

?[27]Id.

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case of violation of a stockholder or member’s right to inspect the corporate books/records as provided for under Section 74 of the Corporation Code. The elements of the offense, as laid down in the case, are:

First. A director, trustee, stockholder or member has made a prior demand in writing for a copy of excerpts from the corporation’s records or minutes;

Second. Any officer or agent of the concerned corporation shall refuse to allow the said director, trustee, stockholder or member of the corporation to examine and copy said excerpts;

Third. If such refusal is made pursuant to a resolution or order of the board of directors or trustees, the liability under this section for such action shall be imposed upon the directors or trustees who voted for such refusal; and,

Fourth. Where the officer or agent of the corporation sets up the defense that the person demanding to examine and copy excerpts from the corporation’s records and minutes has improperly used any information secured through any prior examination of the records or minutes of such corporation or of any other corporation, or was not acting in good faith or for a legitimate purpose in making his demand, the contrary must be shown or proved.28[28]

Thus, in a criminal complaint for violation of Section 74 of the Corporation Code, the defense of improper use or motive is in the nature of a justifying circumstance that would exonerate those who raise and are able to prove the same. Accordingly, where the corporation denies inspection on the ground of improper motive or purpose, the burden of proof is taken from the shareholder and placed on the corporation.29[29] However, where no such improper motive or purpose is alleged, and even though so alleged, it is not proved by the corporation, then there is no valid reason to deny the requested inspection.

In the instant case, however, the Court finds that the denial of inspection was predicated on the pending civil case against the Spouses Sy. This is evident from the 21 May 2003 letter of Sy Tiong Shiou, et al.’s counsel30[30] to the Spouses Sy,31[31] which reads:

Gentlemen:

We write in behalf of our clients, SY SIY HO, INC. ( Guan Yiac Hardware); SY TIONG SHIOU, JUANITA TAN SY; JOLIE ROSS TAN; CHARLIE TAN; ROMER TAN; and JESSE JAMES TAN, relative to your letter dated 16 May 2003. Please be informed that a case for Accounting and Damages had already been filed against your clients, Sy Chim and Felicidad Chan Sy before the Regional Trial Court of Manila, Branch 46, denominated as Civil Case No. 03-106456.

We fully understand your desire for our clients to respond to your demands, however, under the prevailing circumstance this would not be advisable. The concerns that you raised in your letter can later on be addressed after your clients shall have filed their responsive pleading in the abovesaid case.

We trust that this response will at the moment be enough.32[32]

28?[28]Id.

29[29]Id. citing 5A Fletcher Cyc. Corp. §. 2220, 2008.30

?[30]Atty. Elvin P. Grana of A. Tan, Zoleta and Associates Law Firm.31

?[31]The law firm of Siguion Reyna Montecillo & Ongsiako.32

20

Even in their Joint Counter-Affidavit dated 23 September 2003,33[33] Sy Tiong Shiou, et al. did not make any allegation that “the person demanding to examine and copy excerpts from the corporation’s records and minutes has improperly used any information secured through any prior examination of the records or minutes of such corporation or of any other corporation, or was not acting in good faith or for a legitimate purpose in making his demand.” Instead, they merely reiterated the pendency of the civil case. There being no allegation of improper motive, and it being undisputed that Sy Tiong Shiou, et al. denied Sy Chim and Felicidad Chan Sy’s request for inspection, the Court rules and so holds that the DOJ erred in dismissing the criminal charge for violation of Section 74 in relation to Section 144 of the Corporation Code.

Now on the existence of probable cause for the falsification and/or perjury charges.

The Spouses Sy charge Sy Tiong Shiou with the offense of falsification of public documents under Article 171, paragraph 4; and/or perjury under Article 183 of the Revised Penal Code (RPC). The elements of falsification of public documents through an untruthful narration of facts are: (a) the offender makes in a document untruthful statements in a narration of facts; (b) the offender has a legal obligation to disclose the truth of the facts narrated;34[34] (c) the facts narrated by the offender are absolutely false; and (d) the perversion of truth in the narration of facts was made with the wrongful intent to injure a third person.35[35] On the other hand, the elements of perjury are: (a) that the accused made a statement under oath or executed an affidavit upon a material matter; (b) that the statement or affidavit was made before a competent officer, authorized to receive and administer oath; (c) that in that statement or affidavit, the accused made a willful and deliberate assertion of a falsehood; and, (d) that the sworn statement or affidavit containing the falsity is required by law or made for a legal purpose.

A General Information Sheet (GIS) is required to be filed within thirty (30) days following the date of the annual or a special meeting, and must be certified and sworn to by the corporate secretary, or by the president, or any duly authorized officer of the corporation.36[36] From the records, the 2003 GIS submitted to the SEC on 8 April 2003 was executed under oath by Sy Tiong Shiou in Manila, in his capacity as Vice President and General Manager.37[37] By executing the document under oath, he, in effect, attested to the veracity38[38] of its contents. The Spouses Sy claim that the entries in the GIS pertaining to them do not reflect the true number of shares that they own in the company. They attached to their complaint the 2002 GIS of the company, also executed by Sy Tiong Shiou, and compared the entries therein vis-a-vis the ones in the 2003 GIS. The Spouses Sy noted the marked decrease in their shareholdings, averring that at no time after the execution of the 2002 GIS, up to the time of the filing of their criminal complaints did they execute or authorize the execution of any document or deed transferring, conveying or disposing their shares or any portion thereof; and thus there is absolutely no basis for the figures reflected in the 2003 GIS.39[39] The Spouses Sy claim that the false statements were made by Sy

?[32]Rollo, (G.R. No. 174168), p. 83.33

?[33]Id. at 106-108.34

?[34]“Legal obligation “means that there is a law requiring the disclosure of the truth of the facts narrated, REYES, THE REVISED PENAL CODE, BOOK TWO 210, (15th Ed., Rev. 2001).35

?[35]Enemecio v. Office of the Ombudsman, 464 Phil. 102, 115 (2004).

.36?[36]Rollo, p. 317; As stated in the instructions on the GIS Form.

37?[37]Id. at 321.

38?[38]Id.; “that the matters set forth in this General Information Sheet x x x are true and correct to the best of my knowledge,”

last page of the GIS Standard Form. 39

?[39]Supra note 6.

21

Tiong Shiou with the wrongful intent of injuring them. All the elements of both offenses are sufficiently averred in the complaint-affidavits.

The Court agrees with the Court of Appeals’ holding, citing the case of Fabia v. Court of Appeals, that the doctrine of primary jurisdiction no longer precludes the simultaneous filing of the criminal case with the corporate/civil case.40[40] Moreover, the Court finds that the City of Manila is the proper venue for the perjury charges, the GIS having been subscribed and sworn to in the said place. Under Section 10(a), Rule 110 of the Revised Rules of Court, the criminal action shall be instituted and tried in the court of the municipality or territory where the offense was committed or where any of its essential ingredients occurred.41[41] In Villanueva v. Secretary of Justice,42[42] the Court held that the felony is consummated when the false statement is made.43[43] Thus in this case, it was alleged that the perjury was committed when Sy Tiong Shiou subscribed and sworn to the GIS in the City of Manila, thus, following Section 10(a), Rule 110 of the Revised Rules of Court, the City of Manila is the proper venue for the offense.

G. R. No. 179438.

This petition assails the decision44[44] and resolution45[45] of the Court of Appeals dated 26 May 2004 and 29 August 2007, respectively, in CA-G.R. SP No. 81897.

On 3 February 2003, Juanita Tan, corporate treasurer of Sy Siy Ho & Sons, Inc. (the corporation), a family corporation doing business under the name and style Guan Yiac Hardware, submitted a letter46[46]

to the corporation’s Board of Directors (Board) stating that the control, supervision and administration of all corporate funds were exercised by Sy Chim and Felicidad Chan Sy (Spouses Sy), corporate president and assistant treasurer, respectively. In the same letter, Juanita Tan disclosed that Felicidad Chan Sy did not make cash deposits to any of the corporation’s banks from 1 November 2001 to 31 January 2003, thus the total bank remittances for the past years were less than reflected in the corporate financial statements, accounting books and records. Finally, Juanita Tan sought to be free from any responsibility

40?[40]Fabia v. Court of Appeals, 437 Phil. 389, 397 (2002).

414243444546

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over all corporate funds. The Board granted Juanita Tan’s request and authorized the employment of an external auditor to render a complete audit of all the corporate accounting books and records.47[47] Consequently, the Board hired the accounting firm Banaria, Banaria & Company. In its Report48[48] dated 5 April 2003, the accounting firm attributed to the Spouses Sy P67,117,230.30 as unaccounted receipts and disbursements from 1994 to 2002.49[49]

A demand letter50[50] was subsequently served on the Spouses Sy on 15 April 2003. On the same date, the children of the Spouses Sy allegedly stole from the corporation cash, postdated checks and other important documents. After the incident, the Spouses Sy allegedly transferred residence and ceased reporting to the corporation. Thereupon, the corporation filed a criminal complaint for robbery against the Spouses Sy before the City Prosecutor’s Office of Manila.51[51] A search warrant was subsequently issued by the Regional Trial Court.52[52]

On 26 April 2003, Sy Tiong Shiou, corporate Vice President and General Manager, called a special meeting to be held on 6 May 2003 to fill up the positions vacated by the Spouses Sy. Sy Tiong Shiou was subsequently elected as the new president and his wife, Juanita Tan, the new Vice President.53[53]

Despite these developments, Sy Chim still caused the issuance of a Notice of Stockholders meeting dated 11 June 2003 in his capacity as the alleged corporate president.54[54]

Meanwhile, on 1 July 2003, the corporation, through Romer S. Tan, filed its Amended Complaint for Accounting and Damages55[55] against the Spouses Sy before the RTC Manila, praying for a complete and true accounting of all the amounts paid to, received and earned by the company since 1993 and for the restitution of the said amount.56[56] The complaint also prayed for a temporary restraining order (TRO) and or preliminary injunction to restrain Sy Chim from calling a stockholders’ meeting on the ground of lack of authority.

By way of Answer,57[57] the Spouses Sy averred that Sy Chim was a mere figurehead and Felicidad Chan Sy merely performed clerical functions, as it was Sy Tiong Shiou and his spouse, Juanita Tan, who have been authorized by the corporation’s by-laws to supervise, control and administer corporate funds, and as such were the ones responsible for the unaccounted funds. They assailed the meetings called by Sy Tiong Shiou on the grounds that the same were held without notice to them and without their participation, in violation of the by-laws. The Spouses Sy also pursued their counter-claim for moral and exemplary damages and attorney’s fees.

On 9 September 2003, the Spouses Sy filed their Motion for Leave to File Third-Party Complaint,58[58] praying that their attached Third Party Complaint59[59] be allowed and admitted against Sy Tiong Shiou and his spouse. In the said third-party complaint, the Spouses Sy accused Sy Tiong Shiou and Juanita Tan as directly liable for the corporation’s claim for misappropriating corporate funds.

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On 8 October 2003, the trial court granted the motion for leave to file the third-party complaint, and forthwith directed the issuance of summons against Sy Tiong Shiou and Juanita Tan.60[60] On 16 January 2004, their counsel allegedly discovered that Sy Tiong Shiou and Juanita Tan were not furnished with the copies of several pleadings, as well as a court order, which resulted in their having been declared in default for failure to file their answer to the third-party complaint; thus, they opted not to file a motion for reconsideration anymore and instead filed a petition for certiorari before the Court of Appeals.

In its Decision dated 26 May 2004, the Court of Appeals granted the petition of Sy Tiong Shiou and Juanita Tan.61[61] The appellate court declared that a third-party complaint is not allowed under the Interim Rules of Procedure Governing Intra-Corporate Controversies Under R.A. No. 8799 (Interim Rules), it not being included in the exclusive enumeration of allowed pleadings under Section 2, Rule 2 thereof. Moreover, even if such a pleading were allowed, the admission of the third-party complaint against Sy Tiong Shiou and Juanita Tan still would have no basis from the facts or the law and jurisprudence. 62[62]

The Court of Appeals also ruled that the respondent judge committed a manifest error amounting to lack of jurisdiction in admitting the third-party complaint and in summarily declaring Sy Tiong Shiou and Juanita Tan in default for failure to file their answer within the purported reglementary period. The Court of Appeals set aside the trial court’s 8 October 2003 Order admitting the third-party complaint, as well as the 19 December 2003 Order, declaring Sy Tiong Shiou and Juanita Tan in default for failure to file their answer. The trial court was further ordered to dismiss the third-party complaint without prejudice to any action that the corporation may separately file against Sy Tiong Shiou and Juanita Tan.63[63]

The Spouses Sy filed a motion for reconsideration, but their motion was denied on 29 August 2007.64[64]

Sy Chim and Felicidad Chan Sy argue before this Court that a third-party complaint is not excluded or prohibited by the Interim Rules, and that the Court of Appeals erred in ruling that their third- party complaint is not actionable because their action is not in respect of the corporation’s claims. They add that the disallowance of the third-party complaint will result in multiplicity of suits.

The third-party complaint should be allowed.

The conflicting provisions of the Interim Rules of Procedure for Inter-Corporate Controversies read: Rule 1, Sec. 8. Prohibited pleadings.—The following pleadings are prohibited:

(1) Motion to dismiss;

(2) Motion for a bill of particulars;

(3) Motion for new trial, or for reconsideration of judgment or order, or for re-opening of trial;

(4) Motion for extension of time to file pleadings, affidavits or any other paper, except those filed due to clearly compelling reasons. Such motion must be verified and under oath; and

(5) Motion for postponement and other motions of similar intent, except those filed due to clearly compelling reasons. Such motion must be verified and under oath.

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Rule 2, Sec.2. Pleadings allowed.—The only pleadings allowed to be filed under these Rules are the complaint, answer, compulsory counterclaims or cross-claims pleaded in the answer, and the answer to the counterclaims or cross-claims.65[65]

There is a conflict, for while a third-party complaint is not included in the allowed pleadings, neither is it among the prohibited ones. Nevertheless, this conflict may be resolved by following the well-entrenched rule in statutory construction, that every part of the statute must be interpreted with reference to the context, i.e., that every part of the statute must be considered together with the other parts, and kept subservient to the general intent of the whole enactment.66[66] Statutes, including rules, should be construed in the light of the object to be achieved and the evil or mischief to be suppressed and they should be given such construction as will advance the object, suppress the mischief and secure the benefits intended. A statute should therefore be read with reference to its leading idea, and its general purpose and intention should be gathered from the whole act, and this predominant purpose will prevail over the literal import of particular terms or clauses, if plainly apparent, operating as a limitation upon some and as a reason for expanding the signification of others, so that the interpretation may accord with the spirit of the entire act, and so that the policy and object of the statute as a whole may be made effectual and operative to the widest possible extent.67[67] Otherwise stated, the spirit, rather than the letter of a law determines its construction; hence, a statute, as in the rules in this case, must be read according to its spirit and intent.68[68]

This spirit and intent can be gleaned from Sec. 3, Rule 1 of the Interim Rules, which reads:

Sec. 3. Construction.—These Rules shall be liberally construed in order to promote their objective of securing a just, summary, speedy and inexpensive determination of every action or proceeding.69[69]

Now, a third-party complaint is a claim that a defending party may, with leave of court, file against a person not a party to the action, called the third-party defendant, for contribution, indemnity, subrogation or any other relief, in respect of his opponent’s claim. It is actually a complaint independent of, and separate and distinct from the plaintiff’s complaint. In fact, were it not for Rule 6, Section 11 of the Rules of Court, such third-party complaint would have to be filed independently and separately from the original complaint by the defendant against the third-party defendant. Jurisprudence is consistent in declaring that the purpose of a third-party complaint is to avoid circuitry of action and unnecessary proliferation of law suits and of disposing expeditiously in one litigation all the matters arising from one particular set of facts.70[70]

It thus appears that the summary nature of the proceedings governed by the Interim Rules, and the allowance of the filing of third-party complaints is premised on one objective—the expeditious disposition of cases. Moreover, following the rule of liberal interpretation found in the Interim Rules, and taking into consideration the suppletory application of the Rules of Court under

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Rule 1, Sec. 271[71] of the Interim Rules, the Court finds that a third-party complaint is not, and should not be prohibited in controversies governed by the Interim Rules. The logic and justness of this conclusion are rendered beyond question when it is considered that Sy Tiong Shiou and Juanita Tan are not complete strangers to the litigation as in fact they are the moving spirit behind the filing of the principal complaint for accounting and damages against the Spouses Sy.

The Court also rules that the third-party complaint of the Spouses Sy should be admitted.

A prerequisite to the exercise of such right is that some substantive basis for a third-party claim be found to exist, whether the basis be one of indemnity, subrogation, contribution or other substantive right. The bringing of a third-party defendant is proper if he would be liable to the plaintiff or to the defendant or both for all or part of the plaintiff’s claim against the original defendant, although the third-party defendant’s liability arises out of another transaction. The defendant may implead another as third-party defendant: (a) on an allegation of liability of the latter to the defendant for contribution, indemnity, subrogation or any other relief; (b) on the ground of direct liability of the third-party defendant to the plaintiff; or (c) the liability of the third-party defendant to both the plaintiff and the defendant.72[72]

In determining the sufficiency of the third-party complaint, the allegations in the original complaint and the third-party complaint must be examined. A third-party complaint must allege facts which prima facie show that the defendant is entitled to contribution, indemnity, subrogation or other relief from the third-party defendant.73[73]

The complaint alleges that the Spouses Sy, as officers of the corporation, have acted illegally in raiding its corporate funds, hence they are duty bound to render a full, complete and true accounting of all the amounts, proceeds and funds paid to, received and earned by the corporation since 1993 and to restitute to the corporation all such amounts, proceeds, and funds which they took and misappropriated for their own use and benefit, to the damage and prejudice of the plaintiff and its stockholders.74[74] On the other hand, in the third-party complaint, the Spouses Sy claim that it is Sy Tiong Shiou and Juanita Tan who had full and complete control of the day-to day operations and complete control and custody of the funds of the corporation, and hence they are the ones liable for any shortfall or unaccounted

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difference of the corporation’s cash account. Thus, Sy Tiong Shiou and Juanita Tan should render a full, complete and true accounting of all the amounts, proceeds, funds paid to, received and earned by the corporation since 1993, including the amount attributed to the Spouses Sy in the complaint for accounting and damages. In their prayer, the Spouses Sy moved that Sy Tiong Shiou and Juanita Tan be declared as directly and solely liable in respect of the corporation’s claim for accounting and damages, and that in the event that they, the Spouses Sy, are adjudged liable to the corporation, Sy Tiong Shiou and Juanita Tan be ordered to pay all amounts necessary to discharge their liability to the corporation by way of indemnity or reimbursement.

The allegations in the third-party complaint impute direct liability on the part of Sy Tiong Shiou and Juanita Tan to the corporation for the very same claims which the corporation interposed against the Spouses Sy. It is clear therefore that the Spouses Sy’s third-party complaint is in respect of the plaintiff corporation’s claims,75[75] and thus the allowance of the third-party complaint is warranted.

WHEREFORE, these cases are resolved as follows:

G.R. No. 174168

The petition for review is DENIED. The Decision and Resolution of the Court of Appeals dated 31 May 2006 and 8 August 2006, respectively, in CA-G.R. SP No. 91416 are AFFIRMED.

Costs against the petitioners.

G.R. No. 179438

The petition is GRANTED. The decision and resolution of the Court of Appeals dated 26 May 2004 and 29 August 2007, respectively, in CA-G.R. SP No. 81897 are SET ASIDE and the Orders of the Regional Trial Court of Manila Branch 46 dated 8 October 2003 and 19 December 2003 are REINSTATED.

SO ORDERED.

SEVERINO B. VERGARA, vs THE HON. OMBUDSMAN, SEVERINO J. LAJARA, and VIRGINIA G. BARORO, G.R. No. 174567March 12, 2009

EN BANC

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D E C I S I O N

CARPIO, J.:

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The Case

This petition for certiorari and mandamus76[1] assails the 17 March 2004 Resolution77[2] and 22 August 2005 Order78[3] of the Office of the Deputy Ombudsman for Luzon (Ombudsman) in OMB-L-C-02-1205-L. The Ombudsman dismissed the case filed by Severino B. Vergara (petitioner) and Edgardo H. Catindig against Severino J. Lajara as Calamba City Mayor (Mayor Lajara), Virginia G. Baroro (Baroro) as City Treasurer, Razul Requesto as President of Pamana, Inc. (Pamana), and Lauro Jocson as Vice President and Trust Officer of the Prudential Bank and Trust Company (Prudential Bank) for violation of Section 3(e) of the Anti Graft and Corrupt Practices Act (RA 3019).79[4]

The Facts

On 25 June 2001, the City Council of Calamba (City Council), where petitioner was a member, issued Resolution No. 115, Series of 2001. The resolution authorized Mayor Lajara to negotiate with landowners within the vicinity of Barangays Real, Halang, and Uno, for a new city hall site.80[5] During the public hearing on 3 October 2001, the choice for the new city hall site was limited to properties owned by Pamana and a lot in Barangay Saimsin, Calamba.81[6]

On 29 October 2001, the City Council passed Resolution No. 280, Series of 2001, authorizing Mayor Lajara to purchase several lots owned by Pamana with a total area of 55,190 square meters for the price of P129,017,600.82[7] Mayor Lajara was also authorized to execute, sign and deliver the required documents.83[8]

On 13 November 2001, the City Government of Calamba (Calamba City), through Mayor Lajara, entered into the following agreements:

1. Memorandum of Agreement (MOA) The MOA with Pamana and Prudential Bank discussed the terms and conditions of the sale of 15 lots with a total area of 55,190 square meters. The total purchase price of P129,017,600 would be payable in installment as follows: P10,000,000 on or before 15 November 2001, P19,017,600 on or before 31 January 2002, and the balance of P100,000,000 in four equal installments payable on or before 31 April 2002, 31 July 2002, 31 October 2002, and 31 January 2003.84[9]2. Deed of Sale

Under the Deed of Sale, Calamba City purchased from Pamana and Prudential Bank 15 lots with a total area of 55,190 square meters, more or less, located in Brgy. Lecheria/Real, Calamba, Laguna with Transfer Certificate of Title (TCT) Numbers 159893, 159894, 159895, 159896, 159897, 158598, 162412, 162413, 204488, 66140, 61703, 66141, 66142, 66143, and 61705.

3. Deed of Real Estate Mortgage Calamba City mortgaged to Pamana and Prudential Bank the same properties subject of the Deed of Sale as security for the balance of the purchase price. 4. Deed of Assignment of Internal Revenue Allotment (IRA)Calamba City’s IRAs from January 2002 to 31 January 2003 were assigned to Pamana and Prudential Bank in the amount of P119,017,600.

On 19 November 2001, the above documents were endorsed to the City Council. Petitioner alleged that all these documents were not ratified by the City Council, a fact duly noted in an Audit Observation

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Memorandum dated 9 August 2002 and issued by State Auditor Ruben C. Pagaspas of the Commission on Audit.

Petitioner stated that he called the attention of the City Council on the following observations:

a) TCT Nos. 66141, 66142, 66143, 61705 and 66140 were registered under the name of Philippine Sugar Estates Development Company (PSEDC) and neither Pamana nor Prudential Bank owned these properties. Petitioner pointed out that although PSEDC had executed a Deed of Assignment85[10] in favor of Pamana to maintain the road lots within the PSEDC properties, PSEDC did not convey, sell or transfer these properties to Pamana. Moreover, petitioner claimed that the signature of Fr. Efren O. Rivera (Fr. Rivera) in Annex A of the Deed of Assignment appeared to be a forgery. Fr. Rivera had also submitted an Affidavit refuting his purported signature in Annex A.86[11]

b) Petitioner claimed that there was no relocation survey prior to the execution of the Deed of Sale. 87[12]

c) Petitioner alleged that with respect to the two lots covered by TCT No. 61703 with an area of 5,976 square meters and TCT No. 66140 with an area of 3,747 square meters, Fr. Boyd R. Sulpico (Fr. Sulpico) of the Dominican Province of the Philippines had earlier offered the same for only P300 per square meter.88[13]

d) Petitioner contended that TCT Nos. 66141, 66142, 66143 and 61705 are road lots. The dorsal sides of the TCTs bear the common annotation that the road lots cannot be closed or disposed without the prior approval of the National Housing Authority and the conformity of the duly organized homeowners’ association.89[14]

e) Petitioner claimed that an existing barangay road and an access road to Bacnotan Steel Corporation and Danlex Corporation were included in the Deed of Sale90[15]

Petitioner maintained that since the pieces of evidence in support of the complaint were documentary, respondents have admitted them impliedly.91[16]

The Ruling of the Ombudsman

On 17 March 2004, the Ombudsman issued a Resolution (Resolution) finding no probable cause to hold any of the respondents liable for violation of Section 3(e) of RA 3019.92[17]

The Ombudsman found that the subject properties have been transferred and are now registered in the name of Calamba City under new Certificates of Title.93[18] Moreover, the reasonableness of the purchase price for the subject lots could be deduced from the fact that Calamba City bought them at P3,800 per square meter, an amount lower than their zonal valuation at P6,000 per square meter. The Ombudsman added that it was common knowledge that the fair market value of the lots was higher than their zonal valuation, yet the lots were acquired at a lower price. The Ombudsman also found that the terms and conditions of payment were neither onerous nor burdensome to the city government as it was able to immediately take possession of the lots even if it had paid only less than ten percent of the contract price and was even relieved from paying interests on the installment payments. The Ombudsman ruled that there was no compelling evidence showing actual injury or damage to the city government to warrant the indictment of respondents for violation of Section 3(e) of RA 3019.94[19]

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On 27 September 2004, petitioner filed a Motion for Reconsideration. Petitioner questioned the lack of ratification by the City Council of the contracts, the overpricing of lots covered by TCT Nos. 61703 and 66140 in the amount of P19,812,546, the inclusion of road lots and creek lots with a total value of P35,000,000, and the lack of a relocation survey.95[20]

In an Order dated 22 August 2005 (Order), the Ombudsman denied the Motion for Reconsideration for lack of merit.96[21] The Ombudsman held that the various actions performed by Mayor Lajara in connection with the purchase of the lots were all authorized by the Sangguniang Panlungsod as manifested in the numerous resolutions. With such authority, it could not be said that there was evident bad faith in purchasing the lands in question. The lack of ratification alone did not characterize the purchase of the properties as one that gave unwarranted benefits to Pamana or Prudential Bank or one that caused undue injury to Calamba City.97[22]

On the alleged overpricing of the lots covered by TCT Nos. 61703 and 66140, the Ombudsman ruled that it could be discerned from Fr. Sulpico’s affidavit that the said parcels of land were excluded from the offer, being creek easement lots.98[23]

On the lots covered by TCT Nos. 66141, 66142, and 66143, the Ombudsman resolved that new titles were issued in the name of Pamana with PSEDC as the former registered owner.99[24]

The Ombudsman finally declared that the absence of a relocation survey did not affect the validity of the subject transactions.100[25]

Petitioner contended that the assailed Ombudsman’s Resolution and Order discussed only the alleged reasonableness of the price of the property. The Ombudsman did not consider the issue that Calamba City paid for lots that were either easement/creeks, road lots or access roads. Petitioner alleged that it is erroneous to conclude that the price was reasonable because Calamba City should not have paid for the creeks, road lots and access roads at the same price per square meter. Petitioner claimed that the additional evidence of overpricing was a letter from Fr. Sulpico who offered the road lots covered by TCT Nos. 61703 and 66140 at P300101[26] per square meter.102[27]

In their Comment, Mayor Lajara and Baroro (respondents) argued that as frequently ruled by this Court, it is not sound practice to depart from the policy of non-interference in the Ombudman’s exercise of discretion to determine whether to file an information against an accused. In the assailed Resolution and Order, the Ombudsman stated clearly and distinctly the facts and the law on which the case was based and as such, petitioner had the burden of proving that grave abuse of discretion attended the issuance of the Resolution and Order of the Ombudsman. Respondents maintained that in a meager three pages of argumentation, petitioner failed to point out the grave errors in the assailed Resolution and merely raised issues which have been disposed of by the Ombudsman.103[28]

Respondents claimed that out of the six PSEDC-owned lots that were sold to Calamba City, the ownership of the four lots had already been transferred to Pamana as evidenced by the new TCTs. Respondents added that even if TCT Nos. 66140 and 61703 were still in PSEDC’s name, ownership of these lots had been transferred to Pamana as confirmed by Fr. Sulpico, the custodian of all the assets of the Dominican Province of the Philippines.104[29] Respondents also refuted the alleged overpricing of the

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lots covered by TCT Nos. 66140 and 61703. Respondents contended that Fr. Sulpico’s letter offering the lots at P350105[30] per square meter had been superseded by his own denial of said offer during the meeting of the Sangguniang Panlungsod on 14 November 2002.106[31]

On the absence of ratification by the City Council of the MOA, Deed of Sale, Deed of Mortgage, and Deed of Assignment, respondents explained that Section 22107[32] of Republic Act No. 7160 (RA 7160) spoke of prior authority and not ratification. Respondents pointed out that petitioner did not deny the fact that Mayor Lajara was given prior authority to negotiate and sign the subject contracts. In fact, it was petitioner who made the motion to enact Resolution No. 280.108[33]

On the non-conduct of a relocation survey, respondents noted that while a relocation survey may be of use in determining which lands should be purchased, the absence of a relocation survey would not, in any manner, affect the validity of the subject transactions.109[34]

The Ombudsman, as represented by the Office of the Solicitor General, claimed that there was no grave abuse of discretion committed in dismissing the complaint-affidavit for violation of Section 3(e) of RA 3019.110[35] The Ombudsman reasoned that to warrant conviction under Section 3(e) of RA 3019, the following essential elements must concur: (a) the accused is a public officer discharging administrative, judicial, or official functions; (b) he must have acted with manifest partiality, evident bad faith, or inexcusable negligence; and (c) his action caused undue injury to any party, including the government, or gave any private party unwarranted benefits, advantage, or preference in the discharge of his functions.111

[36] The Ombudsman contended that when Mayor Lajara entered into and implemented the subject contracts, he complied with the resolutions issued by the City Council.

The Ombudsman cites the following circumstances to show that the action taken by Mayor Lajara neither caused any undue injury to Calamba City nor gave a private party any unwarranted benefits, advantage, or preference. First, the purchase price of P3,800 per square meter or a total of P129,017,600 for the site of the new City Hall was reasonable. The initial offer of the seller for the property was P6,000 per square meter, an amount equal to the zonal value. Second, Calamba City took immediate possession of the properties despite an initial payment of only P10,000,000 out of the total purchase price. Third, the total purchase price was paid under liberal terms as it was paid in installments for one year from date of purchase. Fourth, the parties agreed that the last installment of P25,000,000 was subject to the condition that titles to the properties were first transferred to Calamba City.112[37]

In its Memorandum, the Ombudsman asserted that petitioner had not substantiated his claim by clear and convincing evidence that TCT Nos. 66141, 66142, and 66143 are road lots. The sketch plan presented by petitioner could not be regarded as conclusive evidence to support his claim. The Ombudsman also refuted petitioner’s claim that TCT Nos. 68601 and 68603 were included in the Deed of Sale.113[38]

The Ombudsman maintained that petitioner’s contention that the prices for TCT Nos. 66140 and 61703 were jacked up was belied by the affidavit of Fr. Sulpico stating that the said lots were excluded from the offer as they were creek/easement lots.114[39]

The Ombudsman explained that ratification by the City Council was not a condition sine qua non for the local chief executive to enter into contracts on behalf of the city. The law requires prior

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authorization from the City Council and in this case, Resolution Nos. 115 and 280 were the City Council’s stamp of approval and authority for Mayor Lajara to purchase the subject lots.115[40]

The Ombudsman added that mandamus is not meant to control or review the exercise of judgment or discretion. To compel the Ombudsman to pursue a criminal case against respondents is outside the ambit of the courts.116[41]

Aggrieved by the Ombudman’s Resolution and Order, petitioner elevated the case before this Court. Hence, this petition.

The Issues

The issues in this petition are: 1. Whether the Ombudsman committed grave abuse of discretion amounting to lack or excess of

jurisdiction when the Ombudsman dismissed for lack of probable cause the case against respondents for violation of Section 3(e) of RA 3019;

2. Whether the Ombudsman committed grave abuse of discretion amounting to lack or excess of jurisdiction when the Ombudsman failed to consider the issue that Calamba City had acquired road lots which should not have been paid at the same price as the other lots; and

3. Whether all the documents pertaining to the purchase of the lots should bear the ratification by the City Council of Calamba.

The Ruling of the Court

On the determination of probable cause by the Ombudsman and the grave abuse of discretion in the acquisition of road lots

The mandate of the Office of the Ombudsman is expressed in Section 12, Article XI of the Constitution which states:

Sec. 12. The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against public officials or employees of the Government, or any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and shall, in appropriate cases, notify the complainants of the action taken and the result thereof.

Section 13, Article XI of the Constitution vests in the Office of the Ombudsman the following powers, functions, and duties:

Sec. 13. The Office of the Ombudsman shall have the following powers, functions, and duties:

(1) Investigate on its own, or on complaint by any person, any act or omission of any public official, employee, office or agency, when such act or omission appears to be illegal, unjust, improper, or inefficient.(2) Direct, upon complaint or at its own instance, any public official or employee of the government, or any subdivision, agency or instrumentality thereof, as well as of any government-owned or controlled corporation with original charter, to perform and expedite any act or duty required by law, or to stop, prevent, and correct any abuse or impropriety in the performance of duties. (3) Direct the officer concerned to take appropriate action against a public official or employee at fault, and recommend his removal, suspension, demotion, fine, censure, or prosecution, and ensure compliance therewith. (4) Direct the officer concerned, in any appropriate case, and subject to such

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limitations as may be provided by law, to furnish it with copies of documents relating to contracts or transactions entered into by his office involving the disbursement or use of public funds or properties, and report any irregularity to the Commission on Audit for appropriate action. (5) Request any government agency for assistance and information necessary in the discharge of its responsibilities, and to examine, if necessary, pertinent records and documents. (6) Publicize matters covered by its investigation when circumstances so warrant and with due prudence. (7) Determine the causes of inefficiency, red tape, mismanagement, fraud, and corruption in the government, and make recommendations for their elimination and the observance of high standards of ethics and efficiency. (8) Promulgate its rules of procedure and exercise such other powers or perform such functions or duties as may be provided by law. (Boldfacing supplied)

Republic Act No. 6770 (RA 6770), or the Ombudsman Act of 1989, granted the Office of the Ombudsman full administrative authority. Section 13 of RA 6770 restates the mandate of the Office of the Ombudsman:

Sec. 13. Mandate. - The Ombudsman and his Deputies, as protectors of the people, shall act promptly on complaints filed in any form or manner against officers or employees of the government, or of any subdivision, agency or instrumentality thereof, including government-owned or controlled corporations, and enforce their administrative, civil and criminal liability in every case where the evidence warrants in order to promote efficient service by the Government to the people.

Section 15(1) of RA 6770 substantially reiterates the investigatory powers of the Office of the Ombudsman:

Sec. 15. Powers, Functions and Duties. - The Office of the Ombudsman shall have the following powers, functions and duties:

(1) Investigate and prosecute on its own or on complaint by any person, any act or omission of any public officer or employee, office or agency, when such act or omission appears to be illegal, unjust, improper or inefficient. It has primary jurisdiction over cases cognizable by the Sandiganbayan and, in the exercise of his primary jurisdiction, it may take over, at any stage, from any investigatory agency of government, the investigation of such cases;

Jurisprudence explains that the Office of the Ombudsman is vested with the sole power to investigate and prosecute, motu proprio or on complaint of any person, any act or omission of any public officer or employee, office, or agency when such act or omission appears to be illegal, unjust, improper, or inefficient.117[42] The Ombudsman’s power to investigate and to prosecute is plenary and unqualified.118

[43]

The Ombudsman has the discretion to determine whether a criminal case, given its attendant facts and circumstances, should be filed or not. The Ombudsman may dismiss the complaint should the Ombudsman find the complaint insufficient in form or substance, or the Ombudsman may proceed with the investigation if, in the Ombudsman’s view, the complaint is in due form and substance.119[44] Hence, the filing or non-filing of the information is primarily lodged within the “full discretion” of the Ombudsman.120

[45]

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This Court has consistently adopted a policy of non-interference in the exercise of the Ombudsman’s constitutionally mandated powers. The Ombudsman, which is “beholden to no one, acts as the champion of the people and the preserver of the integrity of the public service.”121[46] However, this Court is not precluded from reviewing the Ombudsman’s action when there is grave abuse of discretion, in which case the certiorari jurisdiction of the Court may be exceptionally invoked pursuant to Section 1, Article VIII of the Constitution.122[47] We have enumerated instances where the courts may interfere with the Ombudsman’s investigatory powers:

(a) To afford protection to the constitutional rights of the accused;(b) When necessary for the orderly administration of justice or to avoid oppression or multiplicity of actions; (c) When there is a prejudicial question which is sub judice; (d) When the acts of the officer are without or in excess of authority; (e) Where the prosecution is under an invalid law, ordinance or regulation; (f) When double jeopardy is clearly apparent; (g) Where the court has no jurisdiction over the offense; (h) Where it is a case of persecution rather than prosecution; (i) Where the charges are manifestly false and motivated by the lust for vengeance.123[48]

These exceptions are not present in this case. However, petitioner argues that the assailed Resolution of the Ombudsman dwelt only on the alleged reasonableness of the price of the property. Petitioner claims that the Resolution did not pass upon the more serious issue that Calamba City had paid for several lots that the City should not have paid for because they were road lots.

The Ombudsman, in issuing the assailed Resolution, found no probable cause to hold any of the respondents liable for violation of Section 3(e) of RA 3019. The Ombudsman found that the subject lots were bought at P3,800 per square meter, an amount lower than their zonal valuation of P6,000 per square meter.

Based on this computation, Calamba City paid for a total area of 33,952 square meters124[49] instead of the original 55,000 square meters as authorized in the City Council’s Resolution No. 280, Series of 2001. Contrary to petitioner’s allegation that Lot 5 with an area of 3,062 square meters and Lot 8 with an area of 3,327 square meters are easement/creeks and road lot respectively,125[50] the sketch plan126[51] submitted by petitioner as Annex L in his Affidavit-Complaint and the TCTs127[52] of the properties indicate that these are parcels of land.

A perusal of the records shows that the findings of fact by the Ombudsman are supported by substantial evidence. As long as substantial evidence supports it, the Ombudsman’s ruling will not be overturned.128[53] Petitioner, in arguing that the Ombudsman committed grave abuse of discretion, raises questions of fact. This Court is not a trier of facts, more so in the extraordinary writ of certiorari where neither questions of fact nor even of law are entertained, but only questions of lack of jurisdiction or grave abuse of discretion can be raised.129[54] The rationale behind this rule is explained in this wise:

The rule is based not only upon respect for the investigatory and prosecutory powers granted by the Constitution to the Office of the Ombudsman but upon practicality as well. Otherwise, the functions of the courts will be grievously hampered by innumerable petitions assailing the dismissal of investigatory proceedings conducted by the Office of the

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Ombudsman with regard to complaints filed before it, in much the same way that the courts would be extremely swamped if they could be compelled to review the exercise of discretion on the part of the fiscals or prosecuting attorneys each time they decide to file an information in court or dismiss a complaint by a private complainant.130[55]

In this case, the Ombudsman dismissed petitioner’s complaint for lack of probable cause based on the Ombudsman’s appreciation and review of the evidence presented. In dismissing the complaint, the Ombudsman did not commit grave abuse of discretion.

Probable cause is 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.131[56] Probable cause need not be based on clear and convincing evidence of guilt, or on evidence establishing guilt beyond reasonable doubt, and definitely not on evidence establishing absolute certainty of guilt, but it certainly demands more than bare suspicion and can never be left to presupposition, conjecture, or even convincing logic.132[57]

In Rubio v. Ombudsman,133[58] this Court held that what is contextually punishable under Section 3(e) of RA 3019 is the act of causing any undue injury to any party, or the giving to any private party unwarranted benefits, advantage or preference in the discharge of the public officer’s functions. In this case, after evaluating the evidence presented,134[59] the Ombudsman categorically ruled that there was no evidence to show actual injury or damage to the city government to warrant the indictment of respondents for violation of Section 3(e) of RA 3019. Further, this Court held in Pecho v. Sandiganbayan,135[60] that “causing undue injury to any party, including the government, could only mean actual injury or damage which must be established by evidence.” Here, the Ombudsman found that petitioner had not substantiated his claim against respondents for the crime charged. This Court is not inclined to interfere with the evaluation of the evidence presented before the Ombudsman.

We reiterate the rule that courts do not interfere in the Ombudsman’s exercise of discretion in determining probable cause unless there are compelling reasons. The Ombudsman’s finding of probable cause, or lack of it, is entitled to great respect absent a showing of grave abuse of discretion. Besides, to justify the issuance of the writ of certiorari on the ground of abuse of discretion, the abuse must be grave, as when the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined, or to act at all, in contemplation of law, as to be equivalent to having acted without jurisdiction.136[61]

On the ratification by the City Council of all documents pertaining to the purchase of the lots

Petitioner contends that all the documents, like the Memorandum of Agreement, Deed of Sale, Deed of Mortgage, and Deed of Assignment, do not bear the ratification by the City Council.

In the assailed Order, the Ombudsman held that the various actions performed by Mayor Lajara in connection with the purchase of the lots were all authorized by the Sangguniang Panlungsod as manifested in numerous resolutions. The lack of ratification alone does not characterize the purchase of the properties as one that gave unwarranted benefits.

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In its Memorandum submitted before this Court, the Ombudsman, through the Office of the Solicitor General, pointed out that the ratification by the City Council is not a condition sine qua non for the local chief executive to enter into contracts on behalf of the city. The law requires prior authorization from the City Council and in this case, Resolution No. 280 is the City Council’s stamp of approval and authority for Mayor Lajara to purchase the subject lots.

Section 22(c), Title I of RA 7160, otherwise known as the Local Government Code of 1991, provides:

Section 22. Corporate Powers. - x x x

(c) Unless otherwise provided in this Code, no contract may be entered into by the local chief executive in behalf of the local government unit without prior authorization by the sanggunian concerned. A legible copy of such contract shall be posted at a conspicuous place in the provincial capitol or the city, municipal or barangay hall. (Boldfacing and underscoring supplied)

Section 455, Title III of RA 7160 enumerates the powers, duties, and compensation of the Chief Executive. Specifically, it states that :

Section 455. Chief Executive: Powers, Duties and Compensation. - x x x(b) For efficient, effective and economical governance the purpose of which is the

general welfare of the city and its inhabitants pursuant to Section 16 of this Code, the city mayor shall:

x x x (vi) Represent the city in all its business transactions and sign in

its behalf all bonds, contracts, and obligations, and such other documents upon authority of the sangguniang panlungsod or pursuant to law or ordinance; (Boldfacing and underscoring supplied)

Clearly, when the local chief executive enters into contracts, the law speaks of prior authorization or authority from the Sangguniang Panlungsod and not ratification. It cannot be denied that the City Council issued Resolution No. 280 authorizing Mayor Lajara to purchase the subject lots.

Resolution No. 280 states: RESOLUTION NO. 280Series of 2001

A RESOLUTION AUTHORIZING THE CITY MAYOR OF CALAMBA, HON. SEVERINO J. LAJARA TO PURCHASE LOTS OF PAMANA INC. WITH A TOTAL AREA OF FIFTY FIVE THOUSAND SQUARE METERS (55,000 SQ. M.) SITUATED AT BARANGAY REAL, CITY OF CALAMBA FOR A LUMP SUM PRICE OF ONE HUNDRED TWENTY NINE MILLION SEVENTEEN THOUSAND SIX HUNDRED PESOS (P129,017,600), SUBJECT TO THE AVAILABILITY OF FUNDS, AND FOR THIS PURPOSE, FURTHER AUTHORIZING THE HON. MAYOR SEVERINO J. LAJARA TO REPRESENT THE CITY GOVERNMENT AND TO EXECUTE, SIGN AND DELIVER SUCH DOCUMENTS AND PAPERS AS MAYBE SO REQUIRED IN THE PREMISES.

WHEREAS, the City of Calamba is in need of constructing a modern City Hall to adequately meet the requirements of governing new city and providing all adequate facilities and amenities to the general public that will transact business with the city government.

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WHEREAS, as the City of Calamba has at present no available real property of its own that can serve as an appropriate site of said modern City Hall and must therefore purchase such property from the private sector under terms and conditions that are most beneficial and advantageous to the people of the City of Calamba;

NOW THEREFORE, on motion of Kagawad S. VERGARA duly seconded by Kagawad R. HERNANDEZ, be it resolved as it is hereby resolved to authorize the City Mayor of Calamba, Hon. Severino J. Lajara to purchase lots of Pamana, Inc. with a total area of fifty five thousand square meters (55,000 sq.m.) situated at Barangay Real, City of Calamba for a lump sum price of One Hundred Twenty Nine Million Seventeen Thousand Six Hundred Pesos (P129,017,600) subject to the availability of funds, and for this purpose, further authorizing the Hon. Mayor Severino J. Lajara to represent the City Government and to execute, sign and deliver such documents and papers as maybe so required in the premises.137[62] (Emphasis supplied)

As aptly pointed out by the Ombudsman, ratification by the City Council is not a condition sine qua non for Mayor Lajara to enter into contracts. With the resolution issued by the Sangguniang Panlungsod, it cannot be said that there was evident bad faith in purchasing the subject lots. The lack of ratification alone does not characterize the purchase of the properties as one that gave unwarranted benefits to Pamana or Prudential Bank or one that caused undue injury to Calamba City.

In sum, this Court has maintained its policy of non-interference with the Ombudsman’s exercise of its investigatory and prosecutory powers in the absence of grave abuse of discretion, not only out of respect for these constitutionally mandated powers but also upon considerations of practicality owing to the myriad functions of the courts.138[63] Absent a clear showing of grave abuse of discretion, we uphold the findings of the Ombudsman.

WHEREFORE, we DISMISS the petition. We AFFIRM the Resolution and Order of the Ombudsman in OMB-L-C-02-1205-L dated 17 March 2004 and 22 August 2005, respectively.

SO ORDERED.

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