G.R. No.

168168               September 14, 2005

PEOPLE OF THE PHILIPPINES, Appellee,

vs.
EDGARDO DIMAANO, Appellant.

DECISION

PER CURIAM:

On January 26, 1996, Maricar Dimaano charged her father, Edgardo Dimaano with two (2) counts of
rape and one (1) count of attempted rape in the complaints which read as follows:

Criminal Case No. 96-125

That sometime in the year 1993 in the Municipality of Paraaque, Metro Manila, Philippines and within
the jurisdiction of this Honorable Court, the above-named accused, by means of force and
intimidation, did then and there willfully, unlawfully and feloniously have carnal knowledge of the
undersigned complainant Maricar Dimaano y Victoria, who is his own daughter, a minor 10 years of
age, against her will and consent.

CONTRARY TO LAW.1

Criminal Case No. 96-150

That on or about the 29th day of December 1995, in the Municipality of Paraaque, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, by means
of force and intimidation, did then and there willfully, unlawfully and feloniously have carnal
knowledge of the undersigned complainant Maricar Dimaano y Victoria, who is his own daughter, a
minor 12 years of age, against her will and consent.

CONTRARY TO LAW.2

Criminal Case No. 96-151

That on or about the 1st day of January 1996, in the Municipality of Paraaque, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, try and
attempt to rape one Maricar Dimaano y Victoria, thus commencing the commission of the crime of
Rape, directly by overt acts, but nevertheless did not perform all the acts of execution which would
produce it, as a consequence by reason of cause other than his spontaneous desistance that is due
to the timely arrival of the complainant's mother.

CONTRARY TO LAW.3

Appellant pleaded not guilty to the charges.4 Thereafter, trial on the merits ensued.

Complainant was born on August 26, 1983, and was 10 years old when she was first sexually
abused in the morning of September 1993. While inside their house in Sucat, Paraaque, appellant
entered her room and laid down beside her. He removed her clothes and asked her to lie face down
then inserted his penis into her anus. Complainant cried and felt so much pain, but she kept the
incident to herself as her father might hurt her.5
A few days later, appellant again ravished her. After removing his clothes, he asked her to lie on her
side facing him and to place her thigh over his. While in that position, appellant inserted his penis
into her vagina which caused tremendous pain. 6 As in the first incident, complainant kept the ordeal
to herself. It was only in November 1995 that she confided the sexual abuses to her mother.

On December 29, 1995, appellant again assaulted her daughter. While leaning on the kitchen sink,
he raised her t-shirt, fondled and kissed her breasts. He then removed their shorts, fondled her
vagina and inserted his penis, but when her brother Edwin went out of his room, appellant
immediately asked her to dress up.7

The last sexual assault happened in the afternoon of January 1, 1996. Appellant laid complainant
down on the sofa then placed himself on top of her and made pumping motion even with their shorts
on. Appellant stopped only when he heard the arrival of his wife. 8

On January 3, 1996, complainant and her mother visited a relative in Cainta, Rizal, who upon
learning of the abuses done by the appellant, advised them to go to Camp Crame where they filed a
complaint.9 The Medico-Legal Officer at the PNP Crime Laboratory examined complainant and found
her to have suffered deep healed hymenal lacerations and was in a non-virgin state. 10

Appellant denied the accusations against him. He testified that he married Maria Loreto V. Dimaano
on December 25, 1976 and begot three children with her, namely, Edwin, Eric, and Maricar. He
alleged that he worked in several companies abroad11 but admitted that he was in the Philippines in
September 1993. He contended though that he could not have raped complainant because he was
always in the office from 7:00 a.m. until 9:00 p.m. waiting to be dispatched to another assignment
overseas.12

He claimed it was impossible for him to rape his daughter on December 29, 1995 or January 1, 1996
because there were other people in the house. He argued that had he raped complainant, then she
would not have accompanied him to the Paraaque Police Station and Barangay Hall of San Antonio
to apply for police clearance and barangay I.D., and to Uniwide Shopping Center at Sucat,
Paraaque, where they applied for membership at the Video City Club. 13 He also maintained that the
fact that his daughter was in a non-virgin state did not conclusively prove that he was responsible for
it because it is also possible that his daughter had sexual intercourse with another man her age. 14

The trial court found the testimony of complainant to be spontaneous and credible. She narrated the
obscene details of her harrowing experience which no girl of tender age would have known unless
she herself had experienced it. It found the delay in reporting the rape understandable due to the
fear complainant had of her father who had moral ascendancy over her. Also, the quarrel between
complainant's parents was not sufficient motive for the wife to lodge a serious charge of rape against
appellant. It disregarded the Compromise Agreement and the Salaysay sa Pag-uurong ng
Sumbong since complainant was not assisted by a lawyer when she signed the same. Besides, she
testified in open court that she was pursuing the case against her father. The dispositive portion of
the decision reads:

WHEREFORE, the accused Edgardo Dimaano is found guilty beyond reasonable doubt of the
crimes of rape (2 counts) and the crime of attempted rape. For the rape committed in September
1993, he is sentenced to a penalty of reclusion perpetua. For the rape on December 29, 1995, he is
imposed the supreme penalty of death. And for the crime of attempted rape, applying the
Indeterminate Sentence Law (Act No. 4103 as amended), he is sentenced to a penalty of 4 years
and 2 months of prision correccional medium to 10 years and 1 day to 12 years of prision
mayor maximum. He is ordered to indemnify the victim the amount of P50,000.00 and to pay
exemplary damages in the amount of P50,000.00.
SO ORDERED.15

The Court of Appeals affirmed with modifications the decision of the trial court, thus:

WHEREFORE, premises considered, the Decision dated 31 May 2000 of the Regional Trial Court of
Paraaque City, Branch 257 convicting accused-appellant Edgardo Dimaano of the crime of rape is
AFFIRMED with the following MODIFICATIONS:

In Criminal Case No. 96-125, the accused-appellant EDGARDO DIMAANO as found guilty of rape
under Article 335 of the Revised Penal Code and sentenced to a penalty of reclusion perpetua is
also ordered to pay the victim MARICAR DIMAANO Php50,000.00 as civil indemnity; Php50,000.00
as moral damages and Php25,0000.00 as exemplary damages.

In Criminal Case No. 96-150, the accused-appellant EDGARDO DIMAANO, as found guilty of
qualified rape under Article 335 of the Revised Penal Code, as amended by Section 11 of Republic
Act 7659, and sentenced to death penalty, is also ordered to pay the victim MARICAR DIMAANO
Php75,000.00 as civil indemnity; Php75,000.00 as moral damages and Php25,000.00 as exemplary
damages.

In Criminal Case No. 96-151, the accused-appellant EDGARDO DIMAANO as found guilty of
attempted rape under Article 335 of the Revised Penal Code, as amended by Section 11 of Republic
Act 7659, is hereby sentenced to an indeterminate penalty of 4 years, 2 months and 1 day to 6 years
of prision correccional as minimum to 8 years and 1 day to 10 years of prision mayor as maximum.
Accused-appellant is also ordered to pay the victim MARICAR DIMAANO Php30,000.00 as civil
indemnity, Php25,000.00 as moral damages, and Php10,000.00 as exemplary damages.

In accordance with Sec. 13, Rule 124 of the Amended Rules to Govern Review of Death Penalty
Cases (A.M. No. 00-5-03-SC, effective 15 October 2004), this case is CERTIFIED to the Supreme
Court for review.

Let the entire record of this case be elevated to the Supreme Court.

SO ORDERED.16

In his Brief, appellant raises the following issues:

I. WHETHER OR NOT THE EVIDENCE ADDUCED BY THE PROSECUTION HAS

OVERCOME THE PRESUMPTION OF INNOCENCE OF THE ACCUSED.

II. WHETHER OR NOR THE VOLUNTARY AND DUE EXECUTION OF THE AFFIDAVIT OF
DESISTANCE BY THE PRIVATE COMPLAINANT SHOULD HAVE BEEN DULY
CONSIDERED AS A FACTOR WHICH PUT TO DOUBT THE REASONS BEHIND THE
FILING OF THE CRIMINAL CHARGES OF RAPE AGAINST HEREIN ACCUSED. 17

Appellant contends that if complainant's accusations were true, then she could have reported them
to the authorities when she accompanied him to Paraaque Police Station and the Barangay Hall of
San Antonio or to their relatives when she had the opportunity to do so. He also argues that had the
trial court considered the Compromise Agreement and Sinumpaang Salaysay ng Pag-uurong ng
Sumbong, it would have known that complainant was only pressured by her mother into filing the
complaint.
We are not persuaded.

This credibility given by the trial court to the rape victim is an important aspect of evidence which
appellate courts can rely on because of its unique opportunity to observe the witnesses, particularly
their demeanor, conduct and attitude during direct and cross-examination by counsel. 18 Absent any
showing that the trial judge overlooked, misunderstood, or misapplied some facts or circumstances
of weight which would affect the result of the case, his assessment of credibility deserves the
appellate court's highest respect.19

It is likewise well established that the testimony of a rape victim is generally given full weight and
credit, more so if she is a minor. The revelation of an innocent child whose chastity has been abused
deserves full credit, as her willingness to undergo the trouble and the humiliation of a public trial is
an eloquent testament to the truth of her complaint. In so testifying, she could only have been
impelled to tell the truth, especially in the absence of proof of ill motive. 20

In the case at bar, the trial court and the Court of Appeals gave credence to the testimony of the
complainant who was only 12 years old when she narrated to the court the violations of her person
as follows:

For rape committed in September 1993:

ATTY. AMBROSIO:

When was the first time that he committed sexual assault upon you?

A: September 1993.

COURT:

No specific date?

A: I cannot remember, Maam.

ATTY. AMBROSIO:

Can you remember how old were you at that time?

A: 10 years old, Maam.

Q: So, after he removed your T-shirt, bra and pan(t)y and shorts, what happened next, if anything
happened?

A: He asked me to lie face down. Pinadapa po niya ako.

Q: After he asked you to lie face down, what happened next?

RECORD: The witness is crying.

A: He inserted in my anus ' ipinasok niya ang titi niya sa puwet ko.
 Q: Did you tell anybody about what happened to you?

A: No, Maam.

Q: Why not?

A: Because I was afraid of my father.

Q: Why are you afraid of your father?

A: Because he might hurt me.

Q: After that incident in September 1993, do you recall any other incident that occurred?

A: There is, Maam.

Q: When was it?

A: After a few days after the first incident.

Q: After he entered your room, what happened next?

A: He laid beside me and he removed my clothes.

Q: What did your father do with the clothes he was wearing?

A: He removed his clothes.

Q: After removing his clothes, what happened next, if any?

A: We were lying in my bed and he asked me to lie on my side ' pinatagilid niya ako.

Q: After he asked you to lie down on your side, what happened next, if any?

A: He asked me to raise my right leg and placed it on his side because he was then lying on his side.

Q: After he asked you to place your right thigh over his left thigh, what happened next, if any?

A: He inserted his penis into my organ.21

For rape committed on December 29, 1995:

Q: On December 29, 1995, do you remember of any unusual incident that happened?

A: There was, Maam.

Q: What is that incident?

A: I was raped by my father on that day.

Q: Where were you on that day when you said he raped you?

A: I was then at the kitchen of our house.

Q: What were you doing at the kitchen at that time?

A: I was then sitting at our dining set.

Q: What about your father, what he doing?

A: He was cooking.

Q: What happened while sitting at the dining set, if any?

A: He told me to approach him.

Q: After you approached him, what happened next?

A: I was leaning then at the kitchen sink and he asked me to embrace him.

Q: What happened after you embraced him?

A: After that, he raised my T-shirt.

Q: After raising your T-shirt, what happened next?

A: He held my breast.

Q: After that, what happened next?

A: He kept kissing my breast.

Q: How many times did he kiss your breast?

A: Many times.

Q: What happened next after he kissed you breast?

A: He put my shorts down.

Q: After putting your shorts down, what happened next, if any?

A: He also put down my panty.

Q: After putting down your panty, what happened next, if any?

A: He held my organ.

ATTY. MALLARES:
At this juncture, Your Honor, may we request witness to be more specific with respect to organ.

ATTY. AMBROSIO:

When you say organ', what do you mean?

A: Pekpek.

COURT: Proceed.

ANSWER:

After he held my vagina, he also put down his shorts and brief.

Q: After putting down his shorts and brief, what happened next?

A: He inserted his penis into my vagina. 22

For Attempted rape committed on January 1, 1996:

Q: Do you recall of any incident that happened on Jan 1, 199[6] 3:00 to 4:00 P.M.?

A: We were in our sala on the sofa.

Q: When you say 'we', who are those you are referring to?

A: Me and my father.

Q: While you and your father were in the living room and on the sofa, what happened?

A: While we were on the sofa, my father was then raising my T-shirt and kissing my breast.

Q: What were you wearing at that time?

A: Shorts, T-shirt, bra and panty.

Q: What did your father do with your shorts, T-shirt and bra?

A: He raised them.

Q: What about your father, how was he dressed at that time?

A: Shorts and T-shirt.

Q: After raising your bra and T-shirt, what happened next?

A: While he was kissing my breast, we were already lying on the sofa, then he went on top of me.

Q: After he went on top of you, what happened next, if any?

A: He was forcing to insert his penis while we were still wearing shorts.

Q: So, you mean to say, you were still wearing shorts at that time?

A: Yes, Maam.

Q: What happened next when he was forcing to push his penis into your vagina?

A: It did not push through because my mother suddenly arrived. 23

The trial court believed the complainant and held that:

The testimony of Maricar of her ignominious experience contains all the indicia of truth. It is
spontaneous, direct and clear. It is vivid and complete with details. Her testimony is truthful and
convincing. Her credibility is beyond question.

The Court believes that at her tender age, Maricar could not make public the offense, undergo the
troubles and humiliation of public trial and endure the ordeal of testifying to all its gory details if she
has not in fact been raped. The Court believes that a girl who is only twelve (12) years old would not
ordinarily file a rape complaint against anybody, much less her own father, if it is not true. 24

We have painstakingly reviewed the evidence on record and found no cogent reason to disturb the
findings of the trial court and the appellate court.

Contrary to appellant's assertion, complainant's credibility was not diminished by her failure to report
the sexual abuses to the authorities and her relatives despite opportunities to do so. Delay in
reporting the rape incidents, especially in the face of threats of physical violence, cannot be taken
against the victim, more so when the lecherous attacker is her own father. Strong apprehensions
brought about by fear, stress, or anxiety can easily put the offended party to doubt or even distrust
what should otherwise be a positive attitude of bringing the culprit to justice. The Court has thus
considered justified the filing of complaints for rape months, even years, after the commission of the
offense.25

In the case at bar, the delay of more than two years is not an indication that the charges were
fabricated for complainant's reactions were consistent with reason. Her complete obedience to
appellant, her lack of struggle and the studied silence she kept about her ordeal were all brought
about by genuine fear posed by her own father against her.

Appellant's reliance on complainant's affidavit of desistance deserves scant consideration. A survey

of our jurisprudence reveals that the court attaches no persuasive value to a desistance, especially
when executed as an afterthought. The unreliable character of this document is shown by the fact
that it is quite incredible that a victim, after going through the trouble of having the appellant arrested
by the police, positively identifying him as the person who raped her, enduring the humiliation of a
physical examination of her private parts, repeating her accusations in open court and recounting
her anguish in detail, will suddenly turn around and declare that she is no longer interested in
pursuing the case.26

Too, complainant repudiated the affidavit of desistance in open court by stating that no lawyer
assisted her when she affixed her signature27 and had shown her resolve to continue with the
prosecution of the cases.28 Besides, the trial court is not bound to dismiss the cases, as it is still
within its discretion whether or not to proceed with the prosecution, 29 considering that the
compromise agreement and the affidavit of desistance were executed long after the cases have
been filed in court.

Moreover, a criminal offense is an outrage to the sovereign State and to the State belongs the power
to prosecute and punish crimes.30 By itself, an affidavit of desistance is not a ground for the dismissal
of an action, once it has been instituted in court. A private complainant loses the right or absolute
privilege to decide whether the rape charge should proceed, because the case was already filed and
must therefore continue to be heard by the trial court. 31

In addition, a careful scrutiny of the affidavit of desistance reveals that complainant never retracted
her allegation that she was raped by her father. Neither did she give any exculpatory fact that would
raise doubts about the rape. All she stated in the affidavit was that she had decided to withdraw the
complaints after the appellant agreed not to disturb the complainant; to consent to annul his
marriage; allow his wife to solely manage the conjugal properties; and entrust the custody of his
children to his wife. Rather than contradict, this affidavit reinforces complainant's testimony that
appellant raped her on several occasions.

The gravamen of the offense of rape is sexual congress with a woman by force and without
consent.  If the woman is under 12 years of age, proof of force and consent becomes immaterial not
1âwphi1

only because force is not an element of statutory rape, but the absence of a free consent is
presumed. Conviction will therefore lie, provided sexual intercourse is proven. But if the woman is 12
years of age or over at the time she was violated, sexual intercourse must be proven and also that it
was done through force, violence, intimidation or threat. 32

We have ruled that in incestuous rape of a minor, actual force or intimidation need not even be
employed where the overpowering moral influence of appellant, who is private complainant's father,
would suffice. The moral and physical dominion of the father is sufficient to cow the victim into
submission to his beastly desires.33 The instant case is no exception. Appellant took advantage of his
moral and physical ascendancy to unleash his lechery upon his daughter.

Hence, under the above circumstances, we affirm the trial court's conviction in Criminal Case Nos.
96-125 and 96-150 for the crimes of rape committed in September 1993 and on December 29, 1995.
However, we acquit appellant in Criminal Case No. 96-151 for the crime of attempted rape for failure
to allege in the complaint the specific acts constitutive of attempted rape.

The complaint for attempted rape in Criminal Case No. 96-151 is again quoted as follows:

That on or about the 1st day of January 1996, in the Municipality of Paraaque, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the above-named accused, try and
attempt to rape one Maricar Dimaano y Victoria, thus commencing the commission of the crime of
Rape, directly by overt acts, but nevertheless did not perform all the acts of execution which would
produce it, as a consequence by reason of cause other than his spontaneous desistance that is due
to the timely arrival of the complainant's mother.

CONTRARY TO LAW.34

For complaint or information to be sufficient, it must state the name of the accused; the designation
of the offense given by the statute; the acts or omissions complained of as constituting the
offense; the name of the offended party; the approximate time of the commission of the offense,
and the place wherein the offense was committed.35 What is controlling is not the title of the
complaint, nor the designation of the offense charged or the particular law or part thereof allegedly
violated, these being mere conclusions of law made by the prosecutor, but the description of the
crime charged and the particular facts therein recited. 36 The acts or omissions complained of must be
alleged in such form as is sufficient to enable a person of common understanding to know what
offense is intended to be charged, and enable the court to pronounce proper judgment. No
information for a crime will be sufficient if it does not accurately and clearly allege the elements of
the crime charged. Every element of the offense must be stated in the information. What facts and
circumstances are necessary to be included therein must be determined by reference to the
definitions and essentials of the specified crimes. The requirement of alleging the elements of a
crime in the information is to inform the accused of the nature of the accusation against him so as to
enable him to suitably prepare his defense. The presumption is that the accused has no independent
knowledge of the facts that constitute the offense. 37

Notably, the above-cited complaint upon which the appellant was arraigned does not allege specific
acts or omission constituting the elements of the crime of rape. Neither does it constitute sufficient
allegation of elements for crimes other than rape, i.e., Acts of Lasciviousness. The allegation therein
that the appellant 'tr[ied] and attempt[ed] to rape the complainant does not satisfy the test of
sufficiency of a complaint or information, but is merely a conclusion of law by the one who drafted
the complaint. This insufficiency therefore prevents this Court from rendering a judgment of
conviction; otherwise we would be violating the right of the appellant to be informed of the nature of
the accusation against him.

The trial court correctly imposed the penalty of reclusion perpetua in Criminal Case No. 96-125 as
the rape was committed in September 1993 prior to the effectivity of R.A. No. 7659, otherwise known
as the Death Penalty Law, on December 31, 1993. Prior to R.A. No. 7659, Article 335 of the Revised
Penal Code imposes the penalty of reclusion perpetua for the the crime of rape, when committed
against a woman who is under 12 years old or is demented. Anent the rape in Criminal Case No. 96-
150 which was committed on December 29, 1995, Article 335, as amended by R.A. No. 7659, thus
applies. It provides:

ART. 335. When and how rape is committed. - Rape is committed by having carnal knowledge of a
woman under any of the following circumstances:

1. By using force or intimidation;

2. When the woman is deprived of reason or otherwise unconscious; and

3. When the woman is under twelve years of age or is demented.

The crime of rape shall be punished by reclusion perpetua.

The death penalty shall also be imposed if the crime of rape is committed with any of the
following attendant circumstances:

1. When the victim is under eighteen (18) years of age and the offender is a parent,
ascendant, step-parent, guardian, relative by consanguinity or affinity within the third civil
degree, or the common-law spouse of the parent of the victim.

In Criminal Case No. 96-150, appellant was correctly sentenced to death as the special qualifying
circumstances of minority and relationship were properly alleged in the information and proved
during trial by the testimonies of the complainant, her mother and the appellant himself; they were
also supported by the photocopy of the marriage certificate and birth certificate, respectively.
In the case of People v. Cayabyab,38 this Court, in affirming the death penalty, held that a photocopy
of the birth certificate is admissible to prove the age of the victim, as the original thereof is a public
record in the custody of a public officer. The admission of this secondary evidence is one of the
exceptions to the 'best evidence rule under Section 3, Rule 130 of the Revised Rules on Evidence.
Further, we held that production of the original may be dispensed with, in the trial court's discretion,
whenever the opponent does not bona fide dispute the contents of the document and no other useful
purpose will be served by requiring its production.

Indubitably, the marriage and birth certificates are public records in the custody of the local civil
registrar who is a public officer. The presentation, therefore of their photocopies is admissible as
secondary evidence to prove their contents. It is also well to note that appellant did not dispute their
contents when offered as evidence to prove relationship and minority. Having failed to raise a valid
and timely objection against the presentation of this secondary evidence the same became a
primary evidence, and deemed admitted and the other party is bound thereby. 39

Anent the awards of damages, the Court of Appeals correctly modified the awards of civil indemnity
and exemplary damages, which the trial court lumped together for all the crimes committed, by
separately awarding the sums of P50,000.00 40 and P75,000.0041 as civil indemnity in Criminal Case
Nos. 96-125 and 96-150, respectively, and P25,000.00 42 as exemplary damages, for each count of
rape, in line with the prevailing jurisprudence.

The award of civil indemnity, which is in the nature of actual or compensatory damages, is
mandatory upon a conviction for rape.43 On the other hand, exemplary damages is awarded when
the commission of the offense is attended by an aggravating circumstance, whether ordinary or
qualifying.44

Finally, the awards of P50,000.0045 and P75,000.0046 as moral damages in Criminal Case Nos. 96-
125 and 96-150, respectively, by the Court of Appeals are also sustained in line with the prevailing
jurisprudence. The award of moral damages is automatically granted in rape cases without need of
further proof other than the commission of the crime because it is assumed that a rape victim has
actually suffered moral injuries entitling her to such award. 47

WHEREFORE , the decision of the Court of Appeals in CA-G.R. CR No.00263 affirming the decision
of the Regional Trial Court of Paraaque City, Branch 257, in Criminal Cases Nos. 96-125 and 96-
150, finding appellant Edgardo Dimaano GUILTY beyond reasonable doubt of the crime of rape
committed against his own daughter, Maricar Dimaano, and sentencing him to reclusion
perpetua and DEATH, respectively; and ordering him to pay the complainant in Criminal Case No.
96-125 the amounts of P50,000.00 as civil indemnity, P50,000.00 as moral damages, and
P25,000.00 as exemplary damages, and in Criminal Case No. 96-150 the amounts of 75,000.00 as
civil indemnity, P75,000.00 as moral damages, and P25,000.00 as exemplary damages,
is AFFIRMED. Appellant is however ACQUITTED for the crime of attempted rape in Criminal Case
No. 96-151 for failure of the complaint to allege the specific acts or omissions constituting the
offense.

SO ORDERED.
G.R. No. 143193               June 29, 2005

MELBAROSE R. SASOT and ALLANDALE R. SASOT, petitioners,

vs.
PEOPLE OF THE PHILIPPINES, The Honorable court of of appeals, and REBECCA G.
SALVADOR, Presiding Judge, RTC, Branch 1, Manila, respondents.

DECISION

AUSTRIA-MARTINEZ, J.:

The case subject of the present special civil action for certiorari is a criminal prosecution against
petitioners for unfair competition under Article 189 of the Revised Penal Code, filed before the
Regional Trial Court (RTC) of Manila (Branch 1), and docketed as Criminal Case No. 98-166147. 1

Some time in May 1997, the National Bureau of Investigation (NBI) conducted an investigation
pursuant to a complaint by the NBA Properties, Inc., against petitioners for possible violation of
Article 189 of the Revised Penal Code on unfair competition. In its Report dated June 4, 1997, the
NBI stated that NBA Properties, Inc., is a foreign corporation organized under the laws of the United
States of America, and is the registered owner of NBA trademarks and names of NBA basketball
teams such as "USA Basketball," "Chicago Bulls," "Orlando Magic," "Los Angeles Lakers,"
"Rockets," "Phoenix Suns," "Bullets," "Pacers," "Charlotte Hornets," "Blazers," "Denver Nuggets,"
"Sacramento Kings," "Miami Heat," Utah Jazz," "Detroit Pistons," "Milwaukee Bucks," "Seattle
Sonics," "Toronto Raptors," "Atlanta Hawks," "Cavs," "Dallas Mavericks," "Minnesota Timberwolves,"
and "Los Angeles Clippers." These names are used on hosiery, footwear, t-shirts, sweatshirts, tank
tops, pajamas, sport shirts, and other garment products, which are allegedly registered with the
Bureau of Patents, Trademarks and Technology Transfer. The Report further stated that during the
investigation, it was discovered that petitioners are engaged in the manufacture, printing, sale, and
distribution of counterfeit "NBA" garment products. Hence, it recommended petitioners’ prosecution
for unfair competition under Article 189 of the Revised Penal Code. 2

In a Special Power of Attorney dated October 7, 1997, Rick Welts, as President of NBA Properties,
Inc., constituted the law firm of Ortega, Del Castillo, Bacorro, Odulio, Calma & Carbonell, as the
company’s attorney-in-fact, and to act for and on behalf of the company, in the filing of criminal, civil
and administrative complaints, among others. 3 The Special Power of Attorney was notarized by
Nicole Brown of New York County and certified by Norman Goodman, County Clerk and Clerk of the
Supreme Court of the State of New York. Consul Cecilia B. Rebong of the Consulate General of the
Philippines, New York, authenticated the certification. 4 Welts also executed a Complaint-Affidavit on
February 12, 1998, before Notary Public Nicole J. Brown of the State of New York. 5

Thereafter, in a Resolution dated July 15, 1998, Prosecution Attorney Aileen Marie S. Gutierrez
recommended the filing of an Information against petitioners for violation of Article 189 of the
Revised Penal Code.6 The accusatory portion of the Information reads:

That on or about May 9, 1997 and on dates prior thereto, in the City of Manila, Philippines, and
within the jurisdiction of this Honorable Court, above named accused ALLANDALE SASOT and
MELBAROSE SASOT of Allandale Sportslines, Inc., did then and there willfully, unlawfully and
feloniously manufacture and sell various garment products bearing the appearance of "NBA" names,
symbols and trademarks, inducing the public to believe that the goods offered by them are those of
"NBA" to the damage and prejudice of the NBA Properties, Inc., the trademark owner of the "NBA".

CONTRARY TO LAW.7
Before arraignment, petitioners filed a Motion to Quash the Information on the following grounds:

I. THAT THE FACTS CHARGED DO NOT CONSTITUTE AN OFFENSE

II. AND THIS HONORABLE COURT HAD NO JURISDICTION OVER THE OFFENSE CHARGED
OR THE PERSON OF THE ACCUSED8

In support of the foregoing, petitioners argue that the fiscal should have dismissed Welts’s complaint
because under the rules, the complaint must be sworn to before the prosecutor and the copy on
record appears to be only a fax transmittal. 9 They also contend that complainant is a foreign
corporation not doing business in the Philippines, and cannot be protected by Philippine patent laws
since it is not a registered patentee. Petitioners aver that they have been using the business name
"ALLANDALE SPORTSLINE, INC." since 1972, and their designs are original and do not appear to
be similar to complainant’s, and they do not use complainant’s logo or design. 10

The trial prosecutor of the RTC-Manila (Branch 1), Jaime M. Guray, filed his Comment/Opposition to
the motion to quash, stating that he has the original copy of the complaint, and that complainant has
an attorney-in-fact to represent it. Prosecutor Guray also contended that the State is entitled to
prosecute the offense even without the participation of the private offended party, as the crime
charged is a public crime.11

The trial court sustained the prosecution’s arguments and denied petitioners’ motion to quash in its
Order dated March 5, 1999.12

Petitioners filed a special civil action for certiorari with the Court of Appeals (CA) docketed as CA-
G.R. SP No. 52151 which was dismissed per its Decision dated January 26, 2000. 13 According to the
CA, the petition is not the proper remedy in assailing a denial of a motion to quash, and that the
grounds raised therein should be raised during the trial of the case on the merits. 14 The dispositive
portion of the assailed Decision reads:

WHEREFORE, premises considered, the petition for certiorari is hereby DISMISSED. Respondent
court is hereby ordered to conduct further proceedings with dispatch in Criminal Case No. 98-
166147.

SO ORDERED.15

Petitioners sought reconsideration of the Decision but this was denied by the CA. 16

Hence, the present petition for review on certiorari under Rule 45 of the Rules of Court, with issues
raised as follows:

1. WHETHER A FOREIGN CORPORATION NOT ENGAGED AND LICENSE (sic) TO DO

BUSINESS IN THE PHILIPPINES MAY MAINTAIN A CAUSE OF ACTION FOR UNFAIR
COMPETITION.

2. WHETHER AN OFFICER OF A FOREIGN CORPORATION MAY ACT IN BEHALF OF A

CORPORATION WITHOUT AUTHORITY FROM ITS BOARD OF DIRECTORS.

3. WHETHER A FOREIGN CORPORATION NOT ENGAGED IN BUSINESS AND WHOSE

EMBLEM IT SOUGHT TO PROTECT IS NOT IN ACTUAL USE IS ENTITLED TO THE
PROTECTION OF THE PHILIPPINE LAW.
4. WHETHER THE RESPONDENT REGIONAL TRIAL COURT CORRECTLY ASSUMED
JURISDICTION OVER THE CASE AND THE PERSONS OF THE ACCUSED.

5. WHETHER THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION

AMOUNTING TO LACK OF JURISDICTION WHEN IT DISMISSED THE PETITION.17

Petitioners reiterate the argument that the complaint filed by Rick Welts of the NBA Properties, Inc.,
is defective and should have been dismissed by the fiscal because it should have been personally
sworn to by the complainant before the investigating prosecutor. They also reiterate the claim that
Welts failed to show any board resolution showing his authority to institute any action in behalf of the
company, and that the NBA’s trademarks are not being actually used in the Philippines, hence, they
are of public dominion and cannot be protected by Philippine patent laws. Petitioners further contend
that they have not committed acts amounting to unfair competition. 18

The Office of the Solicitor General appeared in behalf of the People, and filed its Amended
Comment to the petition, praying for its dismissal, arguing that the CA did not commit any grave
abuse of discretion in dismissing the petition for reasons stated in its Decision dated January 26,
2000.19

The petition must be denied.

The Court has consistently held that a special civil action for certiorari is not the proper remedy to
assail the denial of a motion to quash an information. 20 The proper procedure in such a case is for
the accused to enter a plea, go to trial without prejudice on his part to present the special defenses
he had invoked in his motion to quash and, if after trial on the merits, an adverse decision is
rendered, to appeal therefrom in the manner authorized by law. 21 Thus, petitioners should not have
forthwith filed a special civil action for certiorari with the CA and instead, they should have gone to
trial and reiterate the special defenses contained in their motion to quash. There are no special or
exceptional circumstances22 in the present case such that immediate resort to a filing of a petition
for certiorari should be permitted. Clearly, the CA did not commit any grave abuse of discretion in
dismissing the petition.

Moreover, the Court does not find any justification for the quashal of the Information filed against
petitioners.

For one, while petitioners raise in their motion to quash the grounds that the facts charged do not
constitute an offense and that the trial court has no jurisdiction over the offense charged or the
person of the accused,23 their arguments focused on an alleged defect in the complaint filed before
the fiscal, complainant’s capacity to sue and petitioners’ exculpatory defenses against the crime of
unfair competition.

Section 3, Rule 117 of the 1985 Rules of Criminal Procedure, which was then in force at the time the
alleged criminal acts were committed, enumerates the grounds for quashing an information, to wit:

a) That the facts charged do not constitute an offense;

b) That the court trying the case has no jurisdiction over the offense charged or the person of
the accused;

c) That the officer who filed the information had no authority to do so;
 d) That it does not conform substantially to the prescribed form;

e) That more than one offense is charged except in those cases in which existing laws
prescribe a single punishment for various offenses;

f) That the criminal action or liability has been extinguished;

g) That it contains averments which, if true, would constitute a legal excuse or justification;
and

h) That the accused has been previously convicted or in jeopardy of being convicted, or
acquitted of the offense charged.

Nowhere in the foregoing provision is there any mention of the defect in the complaint filed before
the fiscal and the complainant’s capacity to sue as grounds for a motion to quash.

For another, under Section 3, Rule 112 of the 1985 Rules of Criminal Procedure, a complaint is
substantially sufficient if it states the known address of the respondent, it is accompanied by
complainant’s affidavit and his witnesses and supporting documents, and the affidavits are sworn to
before any fiscal, state prosecutor or government official authorized to administer oath, or in their
absence or unavailability, a notary public who must certify that he personally examined the affiants
and that he is satisfied that they voluntarily executed and understood their affidavits. All these have
been duly satisfied in the complaint filed before Prosecution Attorney Aileen Marie S. Gutierrez. It
must be noted that even the absence of an oath in the complaint does not necessarily render it
invalid.24 Want of oath is a mere defect of form, which does not affect the substantial rights of the
defendant on the merits.25

In this case, Welts’s Complaint-Affidavit contains an acknowledgement by Notary Public Nicole

Brown of the State of New York that the same has been subscribed and sworn to before her on
February 12, 1998,26 duly authenticated by the Philippine Consulate. While the copy on record of the
complaint-affidavit appears to be merely a photocopy thereof, Prosecution Attorney Gutierrez stated
that complainant’s representative will present the authenticated notarized original in court, 27 and
Prosecutor Guray manifested that the original copy is already on hand. 28 It is apt to state at this point
that the prosecutor enjoys the legal presumption of regularity in the performance of his duties and
functions, which in turn gives his report the presumption of accuracy. 29

Moreover, records show that there are other supporting documents from which the prosecutor based
his recommendation, to wit:

(1) The NBI Report dated June 4, 1997, containing an account of the investigation conducted
from April 30, 1997 to May 9, 1997, and the subsequent search and seizure of several items
from petitioners’ establishment; 30

(2) The letter dated May 8, 1997 from the law firm of Ortega, Del Castillo, Bacorro, Odulio,
Calma & Carbonell to the NBI, seeking assistance in stopping the illegal manufacture,
distribution and sale of "fake products bearing the ‘NBA’ trademark, and in prosecuting the
proprietors of aforesaid factory;"31 and

(3) The Joint Affidavit executed by Rechie D. Malicse and Dalisay P. Bal-ot of the Pinkerton
Consulting Services (Phils.) Inc., which was certified to by Prosecution Attorney Gutierrez,
 attesting to their findings that petitioners were found to be manufacturing, printing, selling,
and distributing counterfeit "NBA" garment products.32

Consequently, if the information is valid on its face, and there is no showing of manifest error, grave
abuse of discretion and prejudice on the part of public prosecutor, as in the present case, the trial
court should respect such determination. 33

More importantly, the crime of Unfair Competition punishable under Article 189 of the Revised Penal
Code34 is a public crime. It is essentially an act against the State and it is the latter which principally
stands as the injured party. The complainant’s capacity to sue in such case becomes immaterial.

In La Chemise Lacoste, S.A. vs. Fernandez,35 a case akin to the present dispute, as it involved the
crime of Unfair Competition under Article 189 of the Revised Penal Code, and the quashal of search
warrants issued against manufacturers of garments bearing the same trademark as that of the
petitioner, the Court succinctly ruled that:

More important is the nature of the case which led to this petition. What preceded this petition for
certiorari was a letter-complaint filed before the NBI charging Hemandas with a criminal offense, i.e.,
violation of Article 189 of the Revised Penal Code. If prosecution follows after the completion of
the preliminary investigation being conducted by the Special Prosecutor the information
shall be in the name of the People of the Philippines and no longer the petitioner which is
only an aggrieved party since a criminal offense is essentially an act against the State. It is
the latter which is principally the injured party although there is a private right violated.
Petitioner's capacity to sue would become, therefore, of not much significance in the main
case. We cannot allow a possible violator of our criminal statutes to escape prosecution upon a far-
fetched contention that the aggrieved party or victim of a crime has no standing to sue.

In upholding the right of the petitioner to maintain the present suit before our courts for unfair
competition or infringement of trademarks of a foreign corporation, we are moreover recognizing our
duties and the rights of foreign states under the Paris Convention for the Protection of Industrial
Property to which the Philippines and France are parties. We are simply interpreting and enforcing a
solemn international commitment of the Philippines embodied in a multilateral treaty to which we are
a party and which we entered into because it is in our national interest to do so. 36 (Emphasis
supplied)

Lastly, with regard to petitioners’ arguments that the NBA Properties, Inc., is not entitled to protection
under Philippine patent laws since it is not a registered patentee, that they have not committed acts
amounting to unfair competition for the reason that their designs are original and do not appear to be
similar to complainant’s, and they do not use complainant’s logo or design, the Court finds that these
are matters of defense that are better ventilated and resolved during trial on the merits of the case.

WHERFORE, the petition is DENIED for lack of merit. Let the records of this case be REMANDED to
the Regional Trial Court of Manila (Branch 24) where Criminal Case No. 98-166147 is presently
assigned, for further proceedings with reasonable dispatch.

SO ORDERED.

Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.

G.R. NO. 184537               April 23, 2010

QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, Petitioners,

vs.
The HONORABLE SANDIGANBAYAN, 4th DIVISION and the PEOPLE OF THE
PHILIPPINES, Respondents.

DECISION

MENDOZA, J.:

This is a petition for certiorari, prohibition and mandamus under Rule 65 of the 1997 Rules on Civil
Procedure with a prayer for the issuance of a writ of preliminary injunction and temporary restraining
order assailing the July 14, 2008 Resolution 1 of the Sandiganbayan in Criminal Case No. SB-08
CRM 0263, denying the Motion for Preliminary Investigation filed by the petitioners who were
charged with a violation of Section 3(e) of Republic Act No. 3019, and the denial of their Motion for
Reconsideration done in open court on August 13, 2008.

An Information2 dated September 13, 2000 charging both petitioners with having violated Section
3(e) of Republic Act No. 3019, by causing undue injury to the government, reads:

The undersigned Graft Investigation Officer of the Office of the Ombudsman-Visayas, accuses
QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, for VIOLATION OF SECTION 3(e) OF
REPUBLIC ACT NO. 3019, AS AMENDED (THE ANTI-GRAFT AND CORRUPT PRACTICES ACT),
committed as follows:

That in or about the months of November and December, 1997, at the Municipality of Lavezares,
Province of Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, above-
named accused, public officials, being the Municipal Mayor and PNP Member of Lavezares,
Northern Samar in such capacity and committing the offense in relation to office, conniving,
confederating and mutually helping with one another, and with the late Limpio Legua, a private
individual, with deliberate intent, with evident bad faith and manifest partiality, did then and there
willfully, unlawfully and feloniously enter into a Pakyaw Contract for the Construction of Barangay
Day Care Centers for Barangays Mac-arthur and Urdaneta, Lavezares, Northern Samar, each in the
amount of FORTY-EIGHT THOUSAND FIVE HUNDRED PESOS (₱48,500.00), Philippine Currency,
or a total amount of NINETY-SEVEN THOUSAND PESOS (₱97,000.00), Philippine Currency,
without conducting a competitive public bidding, thus depriving the government the chance to obtain
the best, if not, the most reasonable price, and thereby awarding said contracts to Olimpio Legua, a
non-license contractor and non-accredited NGO, in violation of Sec. 356 of Republic Act No. 7160
(The Local Government Code) and COA Circular No. 91-368, to the damage and prejudice of the
government.

CONTRARY TO LAW.

This case was initially raffled to the Third Division of Sandiganbayan and was docketed as Criminal
Case No. 26319.

In a Resolution3 promulgated on June 14, 2002, the Third Division granted petitioners’ Motion to
Quash and dismissed the information "for failure of the prosecution to allege and prove the amount
of actual damages caused the government, an essential element of the crime charged."
In a Memorandum4 dated July 1, 2003, the Ombudsman directed the Office of the Special
Prosecutor (OSP) to study the possibility of having the information amended and re-filed with the
Sandiganbayan.

Thus, the OSP re-filed the Information5 dated August 17, 2007, this time, docketed as Criminal Case
No. SB-08 CRM 0263, with the Fourth Division of the Sandiganbayan, charging the petitioners for
violation of Section 3(e) of R.A. No. 3019, by giving unwarranted benefit to a private person, to the
prejudice of the government.

The information, subject of the petition, now reads:

The undersigned Prosecutor of the Office of the Special Prosecutor/Office of the Ombudsman,
hereby accuses, MAYOR QUINTIN B. SALUDAGA and SPO2 FIEL E. GENIO, for the violation of
Section 3(e) of Republic Act 3019, as amended, otherwise known as the Anti-Graft and Corrupt
Practices Act, committed as follows:

That in or about the months of November and December, 1997 at the Municipality of Lavezares,
Province of Northern Samar, Philippines, and within the jurisdiction of this Honorable Court, accused
QUINTIN B. SALUDAGA, a high ranking public official being then the Mayor of Lavezares, Northern
Samar, and committing the crime herein charged while in the discharge of his official administrative
function, conspiring and conniving with accused SPO2 FIEL B. GENIO, a member of Lavezares
Police Force (PNP) and with the late OLIMPIO LEGUA, a private individual, with deliberate intent,
did then and there willfully, unlawfully and criminally give unwarranted benefit or advantage to the
late Olimpio Legua, a non-license contractor and non-

accredited NGO, through evident bad faith and manifest partiality by then and there entering into a
Pakyaw Contract with the latter for the Construction of Barangay Day Care Centers for barangays
Mac-Arthur and Urdaneta, Lavezares, Northern Samar, in the amount of FORTY EIGHT
THOUSAND FIVE HUNDRED PESOS (P48,500.00) each or a total of NINETY SEVEN THOUSAND
PESOS (P97,000.00) Philippine Currency, without the benefit of a competitive public bidding to the
prejudice of the Government and public interest.

CONTRARY TO LAW.

Petitioners filed a Motion for Preliminary Investigation6 dated June 4, 2008 which was strongly
opposed by the prosecution in its Opposition7 dated June 18, 2008.

Petitioners contend that the failure of the prosecution to conduct a new preliminary investigation
before the filing of the second Information constituted a violation of the law because the latter
charged a different offense–that is, violation of Section 3(e) by giving unwarranted benefit to private
parties. Hence, there was a substitution of the first Information. They argue that assuming that no
substitution took place, at the very least, there was a substantial amendment in the new information
and that its submission should have been preceded by a new preliminary investigation. Further, they
claim that newly discovered evidence mandates re-examination of the finding of a prima facie cause
to file the case.

On July 14, 2008, the Sandiganbayan Fourth Division issued the assailed Resolution denying the
petitioners’ motion for preliminary investigation. The graft court found that there is no substituted
information or substantial amendment that would warrant the conduct of a new preliminary
investigation. It gave the following ratiocination:
The re-filed information did not change the nature of the offense charged, but merely modified the
mode by which accused committed the offense. The substance of such modification is not such as to
necessitate the conduct of another preliminary investigation.

Moreover, no new allegations were made, nor was the criminal liability of the accused upgraded in
the re-filed information. Thus, new preliminary investigation is not in order.

The dispositive portion of the Resolution states:

Finding the arguments of accused-movants indefensible, the sufficiency of the information must be
sustained.

WHEREFORE, having established the sufficiency of the Information, the motion under consideration
is hereby DENIED for lack of merit. Accordingly, the arraignment of both accused shall proceed as
scheduled.8

Petitioners filed a Motion for Reconsideration9 dated August 6, 2008, submitting that the two
Informations substantially charged different offenses, such that the present information constituted a
substitution that should have been preceded by a new preliminary investigation.

On August 13, 2008, in a hearing for the arraignment of petitioners, the Sandiganbayan denied the
Motion10 in open court.

Hence, petitioners interpose the present petition for certiorari, prohibition and mandamus with prayer
for the issuance of a writ of preliminary injunction and temporary restraining order under Rule 65 of
the Rules of Court anchored on the following grounds:

The Honorable Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of
jurisdiction when it refused to order the preliminary investigation of the case a quo, when the second
Information in the instant case constituted substituted Information whose submission required the
conduct of preliminary investigation.

II

The Honorable Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of
jurisdiction when it refused to order the conduct of a preliminary investigation of the case a quo,
since the second Information therein contained substantial amendments whose submission required
the conduct of preliminary investigation.

III

The Honorable Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of
jurisdiction when it refused to order the preliminary investigation of the case a quo, although the
newly discovered evidence mandates due re-examination of the finding that prima facie cause
existed to file the case a quo. 11

From the arguments raised by petitioners, the core issue is whether or not the two (2) ways of
violating section 3(e) of Republic Act 3019, namely: (a) by causing undue injury to any party,
including the Government; or (b) by giving any private party any unwarranted benefit, advantage or
preference constitute two distinct and separate offenses that would warrant a new or another
preliminary investigation.

In its Comment12 dated January 12, 2009, respondent People of the Philippines, represented by the
Office of the Special Prosecutor, counters that there is no substituted information in contemplation of
law and jurisprudence that would require the conduct of another preliminary investigation. There is
no newly-discovered evidence that would lead to a different determination should there be another
preliminary investigation conducted.

In their Reply,13 dated April 24, 2009, petitioners insist that the offenses charged in the first and
second Information are not the same, and what transpired was a substitution of Information that
required prior conduct of preliminary investigation. Even assuming there was no substitution,
substantial amendments were made in the second Information, and that its submission should have
been preceded by a new preliminary investigation.

We find no merit in this petition.

Petitioners were charged with a violation of Section 3(e) of R.A. No. 3019 or the Anti-Graft and
Corrupt Practices Act which reads:

Section 3. Corrupt practices of public officers.- In addition to acts or omissions of public officers
already penalized by existing law, the following shall constitute corrupt practices of any public officer
and are hereby declared to be 0unlawful:

xxx

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

The essential elements of the offense are as follows:

1. The accused must be a public officer discharging administrative, judicial or official

functions;

2. He must have acted with manifest partiality, evident bad faith or inexcusable negligence;
and

3. That his action caused any undue injury to any party, including the government, or giving
any private party unwarranted benefits, advantage or preference in the discharge of his
functions.14

In a string of decisions, the Court has consistently ruled:

R.A. 3019, Section 3, paragraph (e), as amended, provides as one of its elements that the public
officer should have acted by causing any undue injury to any party, including the Government, or by
giving any private party unwarranted benefits, advantage or preference in the discharge of his
functions. The use of the disjunctive term "or" connotes that either act qualifies as a violation of
Section 3 paragraph (e), or as aptly held in Santiago, as two (2) different modes of committing the
offense. This does not however indicate that each mode constitutes a distinct offense, but rather,
that an accused may be charged under either mode or under both. 15

The afore-stated ruling is consistent with the well-entrenched principle of statutory construction that
"The word or is a disjunctive term signifying disassociation and independence of one thing from the
other things enumerated; it should, as a rule, be construed in the sense in which it ordinarily implies,
as a disjunctive word."16

Contrary to the argument of petitioners, there is no substituted information. The Information dated
August 17, 2007 filed in Criminal Case No. SB-08 CRM 0263 charged the same offense, that is,
violation of Section 3(e) of Republic Act No. 3019. Only the mode of commission was modified.
While jurisprudence, the most recent being Talaga, Jr. v. Sandiganbayan, 17 provides that there are
two (2) acts or modes of committing the offense, thus: a) by causing any undue injury to any party,
including the government; or b) by giving any private party any unwarranted benefit, advantage or
preference, it does not mean that each act or mode constitutes a distinct offense. An accused may
be charged under either mode18 or under both should both modes concur.19

Petitioners’ reliance on the Teehankee v. Madayag, 20 ruling that, "in substitution of information
another preliminary investigation is entailed and that the accused has to plead anew to the new
information" is not applicable to the present case because, as already stated, there is no substitution
of information there being no change in the nature of the offense charged.

Consequently, petitioners cannot invoke the principle enunciated in Villaflor v. Vivar, 21 that failure to
conduct a new preliminary investigation is tantamount to a violation of their rights. While it is true that
preliminary investigation is a statutory and substantive right accorded to the accused before trial, the
denial of petitioners’ claim for a new investigation, however, did not deprive them of their right to due
process. An examination of the records of the case discloses that there was a full-blown preliminary
investigation wherein both petitioners actively participated.

Anent the contention of petitioners that the information contained substantial amendments
warranting a new preliminary investigation, the same must likewise fail. 1avvphi1

Petitioners erroneously concluded that giving undue injury, as alleged in the first Information, and
conferring unwarranted benefits, alleged in the second Information, are two distinct violations of, or
two distinct ways of violating Section 3(e) of Republic Act No. 3019, and that such shift from giving
undue injury to conferring unwarranted benefit constituted, at the very least, a substantial
amendment. It should be noted that the Information is founded on the same transaction as the first
Information, that of entering into a Pakyaw Contract for the construction of barangay day care
centers for barangays Mac-Arthur and Urdaneta, Lavezares, Northern Samar. Thus, the evidentiary
requirements for the prosecution and defense remain the same.

To bolster their claim for a reinvestigation of the offense, petitioners cited the case of Matalam v.
Sandiganbayan.22 The same is inapplicable to petitioners’ case. In Matalam, there was indeed a
substantial amendment which entitled the accused to another preliminary investigation. The recital of
facts constituting the offense charged therein was definitely altered. In the original information, the
prohibited act allegedly committed by the petitioner was the illegal and unjustifiable refusal to pay the
monetary claims of the private complainants, whereas in the amended information, it is the illegal
dismissal from the service of the private complainants. In the case at bar, there is no substantial
amendment to speak of. As discussed previously, the Information in Criminal Case No. 26319 was
already dismissed by the Third Division of the Sandiganbayan in view of the petitioners’ Motion to
Quash. As such, there is nothing more to be amended.
The Court is not unaware of the case of People v. Lacson, 23 where it was written:

The case may be revived by the State within the time-bar either by the refiling of the Information or
by the filing of a new Information for the same offense or an offense necessarily included therein.
There would be no need of a new preliminary investigation. However, in a case wherein after the
provisional dismissal of a criminal case, the original witnesses of the prosecution or some of them
may have recanted their testimonies or may have died or may no longer be available and new
witnesses for the State have emerged, a new preliminary investigation must be conducted before an
Information is refiled or a new Information is filed. A new preliminary investigation is also required if
aside from the original accused, other persons are charged under a new criminal complaint for the
same offense or necessarily included therein; or if under a new criminal complaint, the original
charge has been upgraded; or if under a new criminal complaint, the criminal liability of the accused
is upgraded from that as an accessory to that as a principal. The accused must be accorded the
right to submit counter-affidavits and evidence.

No such circumstance is obtaining in this case, because there was no modification in the nature of
the charged offense.  Consequently, a new preliminary investigation is unnecessary and cannot be
1avvphi1

demanded by the petitioners.

Finally, the third assigned error, that newly discovered evidence mandates due re-examination of the
finding of prima facie cause to file the case, deserves scant consideration. For petitioners, it is
necessary that a new investigation be conducted to consider newly discovered evidence, in
particular, the Affidavit of COA Auditor Carlos G. Pornelos, author of the audit report. We are not
convinced.

Under Section 2, Rule 121 of the Rules of Court, the requisites for newly discovered evidence are:
(a) the evidence was discovered after trial (in this case, after investigation); (b) such evidence could
not have been discovered and produced at the trial with reasonable diligence; and (c) that it is
material, not merely cumulative, corroborative or impeaching, and is of such weight that, if admitted,
will probably change the judgment. 24

The Pornelos affidavit, which petitioners claim as newly-discovered, was executed by affiant way
back in November 29, 2000, as correctly found by the Sandiganbayan. Clearly, it cannot be
considered as newly found evidence because it was already in existence prior to the re-filing of the
case. In fact, such sworn affidavit was among the documents considered during the preliminary
investigation. It was the sole annexed document to petitioners’ Supplement to Motion for
Reinvestigation,25 offered to dispute the charge that no public bidding was conducted prior to the
execution of the subject project.

More important is the prosecution’s statement in its Memorandum that, "after a careful re-evaluation
of the documentary evidence available to the prosecution at the time of the filing of the initial
Information, and at the time of the re-filing of the Information, the prosecution insists on the finding of
probable cause, an exercise within the exclusive province of the Office of the Ombudsman." 26

Worthy of note is the case of Soriano v. Marcelo,27 viz:

Case law has it that the determination of probable cause against those in public office during a
preliminary investigation is a function that belongs to the Office of the Ombudsman. The
Ombudsman has the discretion to determine whether a criminal case, given its attendant facts and
circumstances, should be filed or not. It is basically his call.
Without good and compelling reasons, the Court cannot interfere in the exercise by the Office of the
Ombudsman of its investigatory and prosecutory powers.28 The only ground upon which it may
entertain a review of the Office of the Ombudsman’s action is grave abuse of discretion. 29

Grave abuse of discretion is an evasion of a positive duty or a virtual refusal to perform a duty
enjoined by law or to act in contemplation of law as when the judgment rendered is not based on law
and evidence but on caprice, whim and despotism. 30

The special civil action for certiorari under Rule 65 of the Rules of Court is intended to correct errors
of jurisdiction or grave abuse of discretion amounting to lack or excess of jurisdiction. The writ of
certiorari is directed against a tribunal, board or officer exercising judicial or quasi-judicial function
that acted without or in excess of its or his jurisdiction or with grave abuse of discretion. Grave abuse
of discretion means such capricious or whimsical exercise of judgment which is equivalent to lack of
jurisdiction. To justify the issuance of the writ of certiorari, the abuse of discretion 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 and gross 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.31

The case at bench discloses no evident indication that respondent Sandiganbayan acted with
arbitrariness, whim or caprice. It committed no error in refusing to order the conduct of another
preliminary investigation. As sufficiently explained by the prosecution, a new preliminary
investigation is not necessary as there was neither a modification of the nature of the offense
charged nor a new allegation. Such conduct of preliminary investigation anew will only delay the
resolution of the case and would be an exercise in futility in as much as there was a complete
preliminary investigation actively participated by both petitioners.

In view of the foregoing, we hold that the public respondent committed no grave abuse of discretion
in issuing its Resolution of July 14, 2008, denying petitioners’ motion for preliminary investigation in
Criminal Case No. SB-08 CRM 0263.

WHEREFORE, the petition is DENIED.

SO ORDERED.

G.R. No. 157472               September 28, 2007

SSGT. JOSE M. PACOY, Petitioner,

vs.
HON. AFABLE E. CAJIGAL, PEOPLE OF THE PHILIPPINES and OLYMPIO L.
ESCUETA, Respondents.

DECISION

AUSTRIA-MARTINEZ, J.:
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court filed by SSGT. Jose M.
Pacoy1 (petitioner) seeking to annul and set aside the Orders dated October 25, 2002 2 and
December 18, 20023 issued by Presiding Judge Afable E. Cajigal (respondent judge) of the Regional
Trial Court (RTC), Branch 68, Camiling, Tarlac in Criminal Case No. 02-42.

On July 4, 2002, an Information for Homicide was filed in the RTC against petitioner committed as
follows:

That on or about the 18th day of March 2002, in the Municipality of Mayantoc, Province of Tarlac,
Philippines and within the jurisdiction of this Honorable Court, the said accused with intent to kill, did
then and there wilfully, unlawfully and feloniously shot his commanding officer 2Lt. Frederick Esquita
with his armalite rifle hitting and sustaining upon 2Lt. Frederick Esquita multiple gunshot wounds on
his body which caused his instantaneous death.

With the aggravating circumstance of killing, 2Lt. Frederick Esquita in disregard of his rank. 4

On September 12, 2002, upon arraignment, petitioner, duly assisted by counsel de parte, pleaded
not guilty to the charge of Homicide. Respondent Judge set the pre-trial conference and trial on
October 8, 2002.5

However, on the same day and after the arraignment, the respondent judge issued another
Order,6 likewise dated September 12, 2002, directing the trial prosecutor to correct and amend the
Information to Murder in view of the aggravating circumstance of disregard of rank alleged in the
Information which public respondent registered as having qualified the crime to Murder.

Acting upon such Order, the prosecutor entered his amendment by crossing out the word "Homicide"
and instead wrote the word "Murder" in the caption and in the opening paragraph of the Information.
The accusatory portion remained exactly the same as that of the original Information for Homicide,
with the correction of the spelling of the victim’s name from "Escuita" to "Escueta." 7

On October 8, 2002, the date scheduled for pre-trial conference and trial, petitioner was to be re-
arraigned for the crime of Murder. Counsel for petitioner objected on the ground that the latter would
be placed in double jeopardy, considering that his Homicide case had been terminated without his
express consent, resulting in the dismissal of the case. As petitioner refused to enter his plea on the
amended Information for Murder, the public respondent entered for him a plea of not guilty. 8

On October 28, 2002, petitioner filed a Motion to Quash with Motion to Suspend Proceedings
Pending the Resolution of the Instant Motion9 on the ground of double jeopardy. Petitioner alleged
that in the Information for Homicide, he was validly indicted and arraigned before a competent court,
and the case was terminated without his express consent; that when the case for Homicide was
terminated without his express consent, the subsequent filing of the Information for Murder in lieu of
Homicide placed him in double jeopardy.

In an Order10 dated October 25, 2002,11 the respondent judge denied the Motion to Quash. He ruled
that a claim of former acquittal or conviction does not constitute double jeopardy and cannot be
sustained unless judgment was rendered acquitting or convicting the defendant in the former
prosecution; that petitioner was never acquitted or convicted of Homicide, since the Information for
Homicide was merely corrected/or amended before trial commenced and did not terminate the
same; that the Information for Homicide was patently insufficient in substance, so no valid
proceedings could be taken thereon; and that with the allegation of aggravating circumstance of
"disregard of rank," the crime of Homicide is qualified to Murder.
Petitioner filed a Motion to Inhibit with attached Motion for Reconsideration. In his Motion to Inhibit,
he alleged that the respondent judge exercised jurisdiction in an arbitrary, capricious and partial
manner in mandating the amendment of the charge from Homicide to Murder in disregard of the
provisions of the law and existing jurisprudence.

In his Motion for Reconsideration, petitioner reiterated that the case against him was dismissed or
otherwise terminated without his express consent, which constitutes a ground to quash the
information for murder; and that to try him again for the same offense constitutes double jeopardy.
Petitioner stated that contrary to respondent judge's conclusion that disregard of rank qualifies the
killing to Murder, it is a generic aggravating circumstance which only serves to affect the imposition
of the period of the penalty. Petitioner also argued that the amendment and/or correction ordered by
the respondent judge was substantial; and under Section 14, Rule 110 of the Revised Rules of
Criminal Procedure, this cannot be done, since petitioner had already been arraigned and he would
be placed in double jeopardy.

In his Order dated December 18, 2002, 12 the respondent judge denied the Motion to Inhibit and
granted the Motion for Reconsideration, thus:

WHEREFORE, in view of the foregoing, the Motion to Inhibit is hereby DENIED while the Motion for
Reconsideration is hereby GRANTED.

Unless ordered otherwise by the Highest Court, the presiding judge shall continue hearing this case.
Further, the Order dated October 25, 2002 is reconsidered and the original information charging the
crime of homicide stands.13

In granting the Motion for Reconsideration, respondent judge found that a close scrutiny of Article
248 of the Revised Penal Code shows that "disregard of rank" is merely a generic
mitigating14 circumstance which should not elevate the classification of the crime of homicide to
murder.

On April 30, 2003, petitioner filed herein petition for certiorari on the following grounds:

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND EXCEEDED HIS
JURISDICTION IN ORDERING THE AMENDMENT OF THE INFORMATION FROM
HOMICIDE TO MURDER.

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND VIOLATED THE
LAW IN DENYING THE MOTION TO QUASH THE INFORMATION FOR MURDER.

THE RESPONDENT JUDGE GRAVELY ABUSED HIS DISCRETION AND EXCEEDED HIS
JURISDICTION AND VIOLATED THE LAW IN ORDERING THE REINSTATEMENT OF
THE INFORMATION FOR HOMICIDE WHICH WAS ALREADY TERMINATED. 15

Petitioner alleges that despite having entered his plea of not guilty to the charge of Homicide, the
public respondent ordered the amendment of the Information from Homicide to Murder because of
the presence of the aggravating circumstance of "disregard of rank," which is in violation of Section
14, Rule 110 of the Revised Rules of Criminal Procedure; that the public respondent’s ruling that
"disregard of rank" is a qualifying aggravating circumstance which qualified the killing of 2Lt. Escueta
to murder is erroneous since, under paragraph 3, Article 14 of the Revised Penal Code, disregard of
rank is only a generic aggravating circumstance which serves to affect the penalty to be imposed
upon the accused and does not qualify the offense into a more serious crime; that even assuming
that disregard of rank is a qualifying aggravating circumstance, such is a substantial amendment
which is not allowed after petitioner has entered his plea.

Petitioner next contends that the respondent judge gravely abused his discretion when he denied the
Motion to Quash the Information for Murder, considering that the original Information for Homicide
filed against him was terminated without his express consent; thus, prosecuting him for the same
offense would place him in double jeopardy.

Petitioner further argues that although the respondent judge granted his Motion for Reconsideration,
he did not in fact grant the motion, since petitioner's prayer was for the respondent judge to grant the
Motion to Quash the Information for Murder on the ground of double jeopardy; that his Motion for
Reconsideration did not seek the reinstatement of the Information for Homicide upon the dismissal of
the Information for Murder, as he would again be placed in double jeopardy; thus, the respondent
judge committed grave abuse of discretion in reinstating the Homicide case.

In his Comment, the Solicitor General argues that the respondent judge's Order reinstating the
Information to Homicide after initially motu proprio ordering its amendment to Murder renders herein
petition moot and academic; that petitioner failed to establish the fourth element of double jeopardy,
i.e., the defendant was acquitted or convicted, or the case against him was dismissed or otherwise
terminated without his consent; that petitioner confuses amendment with substitution of Information;
that the respondent judge's Order dated September 12, 2002 mandated an amendment of the
Information as provided under Section 14, Rule 110 of the Revised Rules of Criminal Procedure; and
that amendments do not entail dismissal or termination of the previous case.

Private respondent Col. Olimpio Escueta, father of the victim, filed his Comment alleging that no
grave abuse of discretion was committed by the respondent judge when he denied petitioner's
Motion to Quash the Amended Information, as petitioner was not placed in double jeopardy; that the
proceedings under the first Information for homicide has not yet commenced, and the case was not
dismissed or terminated when the Information was amended.

In his Reply, petitioner reiterates his contention that the amendment of the charge of Homicide to
Murder after his arraignment would place him in double jeopardy, considering that said amendment
was without his express consent; and that such amendment was tantamount to a termination of the
charge of Homicide.

The parties filed their respective Memoranda.

Generally, a direct resort to us in a petition for certiorari is highly improper, for it violates the
established policy of strict observance of the judicial hierarchy of courts. However, the judicial
hierarchy of courts is not an iron-clad rule.16 A strict application of the rule of hierarchy of courts is
not necessary when the cases brought before the appellate courts do not involve factual but legal
questions.17

In the present case, petitioner submits pure questions of law involving the proper legal interpretation
of the provisions on amendment and substitution of information under the Rules of Court. It also
involves the issue of double jeopardy, one of the fundamental rights of the citizens under the
Constitution which protects the accused not against the peril of second punishment but against
being tried for the same offense. These important legal questions and in order to prevent further
delay in the trial of the case warrant our relaxation of the policy of strict observance of the judicial
hierarchy of courts.

The Court’s Ruling

The petition is not meritorious.

We find no merit in petitioner's contention that the respondent judge committed grave abuse of
discretion in amending the Information after petitioner had already pleaded not guilty to the charge in
the Information for Homicide. The argument of petitioner --

Considering the fact that the case for Homicide against him was already terminated without his
express consent, he cannot anymore be charged and arraigned for Murder which involve the same
offense. The petitioner argued that the termination of the information for Homicide without his
express consent is equivalent to his acquittal. Thus, to charge him again, this time for Murder, is
tantamount to placing the petitioner in Double Jeopardy. 18

is not plausible. Petitioner confuses the procedure and effects of amendment or substitution under
Section 14, Rule 110 of the Rules of Court, to wit --

SEC. 14. Amendment or substitution. — A complaint or information may be amended, in form or in

substance, without leave of court, at any time before the accused enters his plea. After the plea and
during the trial, a formal amendment may only be made with leave of court and when it can be done
without causing prejudice to the rights of the accused.

xxx

If it appears at any time before judgment that a mistake has been made in charging the proper
offense, the court shall dismiss the original complaint or information upon the filing of a new one
charging the proper offense in accordance with Rule 119, Section 11, provided the accused would
not be placed thereby in double jeopardy, and may also require the witnesses to give bail for their
appearance at the trial.

with Section 19, Rule 119 of which provides:

SEC. 19. When mistake has been made in charging the proper offense. - When it becomes manifest
at any time before judgment that a mistake has been made in charging the proper offense and the
accused cannot be convicted of the offense charged or any other offense necessarily included
therein, the accused shall not be discharged if there appears good cause to detain him. In such
case, the court shall commit the accused to answer for the proper offense and dismiss the original
case upon the filing of the proper information.

First, a distinction shall be made between amendment and substitution under Section 14, Rule 110.
For this purpose, Teehankee v. Madayag19 is instructive, viz:

The first paragraph provides the rules for amendment of the information or complaint, while the
second paragraph refers to the substitution of the information or complaint.

It may accordingly be posited that both amendment and substitution of the information may be made
before or after the defendant pleads, but they differ in the following respects:

1. Amendment may involve either formal or substantial changes, while substitution

necessarily involves a substantial change from the original charge;
 2. Amendment before plea has been entered can be effected without leave of court, but
substitution of information must be with leave of court as the original information has to be
dismissed;

3. Where the amendment is only as to form, there is no need for another preliminary
investigation and the retaking of the plea of the accused; in substitution of information,
another preliminary investigation is entailed and the accused has to plead anew to the new
information; and

4. An amended information refers to the same offense charged in the original information or
to an offense which necessarily includes or is necessarily included in the original charge,
hence substantial amendments to the information after the plea has been taken cannot be
made over the objection of the accused, for if the original information would be withdrawn,
the accused could invoke double jeopardy. On the other hand, substitution requires or
presupposes that the new information involves a different offense which does not include or
is not necessarily included in the original charge, hence the accused cannot claim double
jeopardy.

In determining, therefore, whether there should be an amendment under the first paragraph of
Section 14, Rule 110, or a substitution of information under the second paragraph thereof, the rule is
that where the second information involves the same offense, or an offense which necessarily
includes or is necessarily included in the first information, an amendment of the information is
sufficient; otherwise, where the new information charges an offense which is distinct and different
from that initially charged, a substitution is in order.

There is identity between the two offenses when the evidence to support a conviction for one offense
would be sufficient to warrant a conviction for the other, or when the second offense is exactly the
same as the first, or when the second offense is an attempt to commit or a frustration of, or when it
necessarily includes or is necessarily included in, the offense charged in the first information. In this
connection, an offense may be said to necessarily include another when some of the essential
elements or ingredients of the former, as this is alleged in the information, constitute the latter. And,
vice-versa, an offense may be said to be necessarily included in another when the essential
ingredients of the former constitute or form a part of those constituting the latter. 20

In the present case, the change of the offense charged from Homicide to Murder is merely a formal
amendment and not a substantial amendment or a substitution as defined in Teehankee.

While the amended Information was for Murder, a reading of the Information shows that the only
change made was in the caption of the case; and in the opening paragraph or preamble of the
Information, with the crossing out of word "Homicide" and its replacement by the word "Murder."
There was no change in the recital of facts constituting the offense charged or in the determination
of the jurisdiction of the court. The averments in the amended Information for Murder are exactly the
same as those already alleged in the original Information for Homicide, as there was not at all any
change in the act imputed to petitioner, i.e., the killing of 2Lt. Escueta without any qualifying
circumstance. Thus, we find that the amendment made in the caption and preamble from "Homicide"
to "Murder" as purely formal.21

Section 14, Rule 110 also provides that in allowing formal amendments in cases in which the
accused has already pleaded, it is necessary that the amendments do not prejudice the rights of the
accused. The test of whether the rights of an accused are prejudiced by the amendment of a
complaint or information is whether a defense under the complaint or information, as it originally
stood, would no longer be available after the amendment is made; and when any evidence the
accused might have would be inapplicable to the complaint or information. 22 Since the facts alleged
in the accusatory portion of the amended Information are identical with those of the original
Information for Homicide, there could not be any effect on the prosecution's theory of the case;
neither would there be any possible prejudice to the rights or defense of petitioner.

While the respondent judge erroneously thought that "disrespect on account of rank" qualified the
crime to murder, as the same was only a generic aggravating circumstance, 23 we do not find that he
committed any grave abuse of discretion in ordering the amendment of the Information after
petitioner had already pleaded not guilty to the charge of Homicide, since the amendment made was
only formal and did not adversely affect any substantial right of petitioner.

Next, we determine whether petitioner was placed in double jeopardy by the change of the charge
from Homicide to Murder; and subsequently, from Murder back to Homicide. Petitioner's claim that
the respondent judge committed grave abuse of discretion in denying his Motion to Quash the
Amended Information for Murder on the ground of double jeopardy is not meritorious.

Petitioner's Motion to Quash was anchored on Section 3, Rule 117 of the Rules of Court, which
provides:

SEC. 3. Grounds. - The accused may move to quash the complaint or information on any of the
following grounds:

xxxx

(i) That the accused has been previously convicted or acquitted of the offense charged, or the case
against him was dismissed or otherwise terminated without his express consent.

Section 7 of the same Rule lays down the requisites in order that the defense of double jeopardy
may prosper, to wit:

SEC. 7. Former conviction or acquittal; double jeopardy. — When an accused has been convicted or
acquitted, or the case against him dismissed or otherwise terminated without his express consent by
a court of competent jurisdiction, upon a valid complaint or information or other formal charge
sufficient in form and substance to sustain a conviction and after the accused had pleaded to the
charge, the conviction or acquittal of the accused or the dismissal of the case shall be a bar to
another prosecution for the offense charged, or for any attempt to commit the same or frustration
thereof, or for any offense which necessarily includes or is necessarily included in the offense
charged in the former complaint or information.

Thus, there is double jeopardy when the following requisites are present: (1) a first jeopardy
attached prior to the second; (2) the first jeopardy has been validly terminated; and (3) a second
jeopardy is for the same offense as in the first.24

As to the first requisite, the first jeopardy attaches only (a) after a valid indictment; (b) before a
competent court; (c) after arraignment; (d) when a valid plea has been entered; and (e) when the
accused was acquitted or convicted, or the case was dismissed or otherwise terminated without his
express consent.25

It is the conviction or acquittal of the accused or the dismissal or termination of the case that bars
further prosecution for the same offense or any attempt to commit the same or the frustration
thereof; or prosecution for any offense which necessarily includes or is necessarily included in the
offense charged in the former complaint or information. 26

Petitioner's insistence that the respondent judge dismissed or terminated his case for homicide
without his express consent, which is tantamount to an acquittal, is misplaced.

Dismissal of the first case contemplated by Section 7 presupposes a definite or unconditional

dismissal which terminates the case.27 And for the dismissal to be a bar under the jeopardy clause, it
must have the effect of acquittal.1âwphi1

The respondent judge's Order dated September 12, 2002 was for the trial prosecutor to correct and
amend the Information but not to dismiss the same upon the filing of a new Information charging the
proper offense as contemplated under the last paragraph of Section 14, Rule 110 of the Rules of
Court -- which, for convenience, we quote again --

If it appears at anytime before judgment that a mistake has been made in charging the proper
offense, the court shall dismiss the original complaint or information upon the filing of a new one
charging the proper offense in accordance with section 19, Rule 119, provided the accused shall not
be placed in double jeopardy. The court may require the witnesses to give bail for their appearance
at the trial.

and Section 19, Rule 119, which provides:

SEC. 19.- When mistake has been made in charging the proper offense - When it becomes manifest
at any time before judgment that a mistake has been made in charging the proper offense and the
accused cannot be convicted of the offense charged or any other offense necessarily included
therein, the accused shall not be discharged if there appears good cause to detain him. In such
case, the court shall commit the accused to answer for the proper offense and dismiss the original
case upon the filing of the proper information.

Evidently, the last paragraph of Section 14, Rule 110, applies only when the offense charged is
wholly different from the offense proved, i.e., the accused cannot be convicted of a crime with which
he was not charged in the information even if it be proven, in which case, there must be a dismissal
of the charge and a substitution of a new information charging the proper offense. Section 14 does
not apply to a second information, which involves the same offense or an offense which necessarily
includes or is necessarily included in the first information. In this connection, the offense charged
necessarily includes the offense proved when some of the essential elements or ingredients of the
former, as alleged in the complaint or information, constitute the latter. And an offense charged is
necessarily included in the offense proved when the essential ingredients of the former constitute or
form a part of those constituting the latter.28

Homicide is necessarily included in the crime of murder; thus, the respondent judge merely ordered
the amendment of the Information and not the dismissal of the original Information. To repeat, it was
the same original information that was amended by merely crossing out the word "Homicide" and
writing the word "Murder," instead, which showed that there was no dismissal of the homicide case.

Anent the last issue, petitioner contends that respondent judge gravely abused his discretion in
ordering that the original Information for Homicide stands after realizing that disregard of rank does
not qualify the killing to Murder. That ruling was again a violation of his right against double jeopardy,
as he will be prosecuted anew for a charge of Homicide, which has already been terminated earlier.
We are not convinced. Respondent judge did not commit any grave abuse of discretion.

A reading of the Order dated December 18, 2002 showed that the respondent judge granted
petitioner's motion for reconsideration, not on the ground that double jeopardy exists, but on his
realization that "disregard of rank" is a generic aggravating circumstance which does not qualify the
killing of the victim to murder. Thus, he rightly corrected himself by reinstating the original
Information for Homicide. The requisite of double jeopardy that the first jeopardy must have attached
prior to the second is not present, considering that petitioner was neither convicted nor acquitted; nor
was the case against him dismissed or otherwise terminated without his express consent. 29

WHEREFORE, the petition is DISMISSED, there being no grave abuse of discretion committed by
respondent Judge.

SO ORDERED.

G.R. No. 184800               May 5, 2010

WONINA M. BONIFACIO, JOCELYN UPANO, VICENTE ORTUOSTE AND JOVENCIO

PERECHE, SR., Petitioners,
vs.
REGIONAL TRIAL COURT OF MAKATI, BRANCH 149, and JESSIE JOHN P.
GIMENEZ, Respondents.

DECISION

CARPIO MORALES, J.:

Via a petition for Certiorari and Prohibition, petitioners Wonina M. Bonifacio, et al. assail the
issuances of Branch 149 of the Regional Trial Court (RTC) of Makati (public respondent) – Order 1 of
April 22, 2008 which denied their motion to quash the Amended Information indicting them for libel,
and Joint Resolution2 of August 12, 2008 denying reconsideration of the first issuance.

Private respondent Jessie John P. Gimenez 3 (Gimenez) filed on October 18, 2005, on behalf of the
Yuchengco Family ("in particular," former Ambassador Alfonso Yuchengco and Helen Y. Dee
(Helen) and of the Malayan Insurance Co., Inc. (Malayan), 4 a criminal complaint,5 before the Makati
City Prosecutor’s Office, for thirteen (13) counts of libel under Article 355 in relation to Article 353 of
the Revised Penal Code (RPC) against Philip Piccio, Mia Gatmaytan and Ma. Anabella Relova
Santos, who are officers of Parents Enabling Parents Coalition, Inc. (PEPCI), John Joseph
Gutierrez, Jeselyn Upano, Jose Dizon, Rolanda Pareja, Wonina Bonifacio, Elvira Cruz, Cornelio
Zafra, Vicente Ortueste, Victoria Gomez Jacinto, Jurencio Pereche, Ricardo Loyares and Peter
Suchianco, who are trustees of PEPCI, Trennie Monsod, a member of PEPCI (collectively, the
accused), and a certain John Doe, the administrator of the website www.pepcoalition.com.

PEPCI appears to have been formed by a large group of disgruntled planholders of Pacific Plans,
Inc. (PPI) - a wholly owned subsidiary of Great Pacific Life Assurance Corporation, also owned by
the Yuchengco Group of Companies (YGC) - who had previously purchased traditional pre-need
educational plans but were unable to collect thereon or avail of the benefits thereunder after PPI,
due to liquidity concerns, filed for corporate rehabilitation with prayer for suspension of payments
before the Makati RTC.

Decrying PPI’s refusal/inability to honor its obligations under the educational pre-need plans, PEPCI
sought to provide a forum by which the planholders could seek redress for their pecuniary loss under
their policies by maintaining a website on the internet under the address of www.pepcoalition.com.

Gimenez alleged that PEPCI also owned, controlled and moderated on the internet a
blogspot6 under the website address www.pacificnoplan.blogspot.com, as well as a yahoo e-
group7 at [email protected]. These websites are easily accessible to the public or by
anyone logged on to the internet.

Gimenez further alleged that upon accessing the above-stated websites in Makati on various dates
from August 25 to October 2, 2005, he "was appalled to read numerous articles [numbering 13],
maliciously and recklessly caused to be published by [the accused] containing highly derogatory
statements and false accusations, relentlessly attacking the Yuchengco Family, YGC, and
particularly, Malayan."8 He cited an article which was posted/published on www.pepcoalition.com on
August 25, 2005 which stated:

Talagang naisahan na naman tayo ng mga Yuchengcos. Nangyari na ang mga kinatatakutan kong
pagbagsak ng negotiation because it was done prematurely since we had not file any criminal
aspect of our case. What is worse is that Yuchengcos benefited much from the nego. x x x . That is
the fact na talagang hindi dapat pagtiwalaan ang mga Yuchengcos.

LET’S MOVE TO THE BATTLEFIELD. FILE THE CRIMINAL CASES IN COURT, BSP AND AMLC
AND WHEREVER. Pumunta tayong muli sa senado, congreso, RCBC Plaza, and other venues to
air our grievances and call for boycott ng YGC. Let us start within ourselves. Alisin natin ang mga
investments and deposits natin sa lahat ng YGC and I mean lahat and again convince friends to do
the same. Yung mga nanonood lang noon ay dapat makisali na talaga ngayon specially those who
joined only after knowing that there was a negotiation for amicable settlements.

FOR SURE MAY TACTICS PA SILANG NAKABASTA SA ATIN. LET US BE READY FOR IT
BECAUSE THEY HAD SUCCESSFULLY LULL US AND THE NEXT TIME THEY WILL TRY TO
KILL US NA. x x x 9 (emphasis in the original)

By Resolution of May 5, 2006,10 the Makati City Prosecutor’s Office, finding probable cause to indict
the accused, filed thirteen (13) separate Informations 11 charging them with libel. The accusatory
portion of one Information, docketed as Criminal Case No. 06-876, which was raffled off to public
respondent reads:

That on or about the 25th day of August 2005 in Makati City, Metro Manila, Philippines, a place
within the jurisdiction of the Honorable Court, the above-named accused, being then the trustees of
Parents Enabling Parents Coalition and as such trustees they hold the legal title to the
website www.pepcoalition.com which is of general circulation, and publication to the public
conspiring, confederating and mutually helping with one another together with John Does, did then
and there willfully, unlawfully and feloniously and publicly and maliciously with intention of attacking
the honesty, virtue, honor and integrity, character and reputation of complainant Malayan Insurance
Co. Inc., Yuchengco Family particularly Ambassador Alfonso Yuchengco and Helen Dee and for
further purpose exposing the complainant to public hatred and contempt published an article
imputing a vice or defect to the complainant and caused to be composed, posted and published in
the said website www.pepcoalition.com and injurious and defamatory article as follows:
Talagang naisahan na naman tayo ng mga Yuchengcos. Nangyari na ang mga kinatatakutan kong
pagbagsak ng negotiation. x x x x x x x x x

For sure may tactics pa silang nakabasta sa atin. Let us be ready for it because they had
successfully lull us and the next time they will try to kill us na. x x x

A copy of the full text of the foregoing article as published/posted in www.pepcoalition.com is

attached as Annex "F" of the complaint.

That the keyword and password to be used in order to post and publish the above defamatory article
are known to the accused as trustees holding legal title to the above-cited website and that the
accused are the ones responsible for the posting and publication of the defamatory articles that the
article in question was posted and published with the object of the discrediting and ridiculing the
complainant before the public.

CONTRARY TO LAW.12

Several of the accused appealed the Makati City Prosecutor’s Resolution by a petition for review to
the Secretary of Justice who, by Resolution of June 20, 2007, 13 reversed the finding of probable
cause and accordingly directed the withdrawal of the Informations for libel filed in court. The Justice
Secretary opined that the crime of "internet libel" was non-existent, hence, the accused could not be
charged with libel under Article 353 of the RPC.14

Petitioners, as co-accused,15 thereupon filed on June 6, 2006, before the public respondent, a Motion
to Quash16 the Information in Criminal Case No. 06-876 on the grounds that it failed to vest
jurisdiction on the Makati RTC; the acts complained of in the Information are not punishable by law
since internet libel is not covered by Article 353 of the RPC; and the Information is fatally defective
for failure to designate the offense charged and the acts or omissions complained of as constituting
the offense of libel.

Citing Macasaet v. People,17 petitioners maintained that the Information failed to allege a particular
place within the trial court’s jurisdiction where the subject article was printed and first published or
that the offended parties resided in Makati at the time the alleged defamatory material was printed
and first published.

By Order of October 3, 2006, 18 the public respondent, albeit finding that probable cause existed,
quashed the Information, citing Agustin v. Pamintuan. 19 It found that the Information lacked any
allegations that the offended parties were actually residing in Makati at the time of the commission of
the offense as in fact they listed their address in the complaint-affidavit at Yuchengco Tower in
Binondo, Manila; or that the alleged libelous article was printed and first published in Makati.

The prosecution moved to reconsider the quashal of the Information, 20 insisting that the Information
sufficiently conferred jurisdiction on the public respondent. It cited Banal III v. Panganiban 21 which
held that the Information need not allege verbatim that the libelous publication was "printed and first
published" in the appropriate venue. And it pointed out that Malayan has an office in Makati of which
Helen is a resident. Moreover, the prosecution alleged that even assuming that the Information was
deficient, it merely needed a formal amendment.

Petitioners opposed the prosecution’s motion for reconsideration, contending, inter alia, that since
venue is jurisdictional in criminal cases, any defect in an information for libel pertaining to jurisdiction
is not a mere matter of form that may be cured by amendment. 22
By Order of March 8, 2007,23 the public respondent granted the prosecution’s motion for
reconsideration and accordingly ordered the public prosecutor to "amend the Information to cure the
defect of want of venue."

The prosecution thereupon moved to admit the Amended Information dated March 20, 2007, 24 the
accusatory portion of which reads:

That on or about the 25th day of August 2005 in Makati City, Metro Manila, Philippines, a place
within the jurisdiction of the Honorable Court, the above-named accused, being then the trustees of
Parents Enabling Parents Coalition and as such trustees they hold the legal title to the
website www.pepcoalition.com which is of general circulation, and publication to the public
conspiring, confederating together with John Does, whose true names, identities and present
whereabouts are still unknown and all of them mutually helping and aiding one another, did then and
there willfully, unlawfully and feloniously and publicly and maliciously with intention of attacking the
honesty, virtue, honor and integrity, character and reputation of complainant Malayan Insurance Co.
Inc., Yuchengco Family particularly Ambassador Alfonso Yuchengco and Helen Dee and for further
purpose exposing the complainant to public hatred and contempt published an article imputing a vice
or defect to the complainant and caused to be composed, posted and published in the said
website www.pepcoalition.com, a website accessible in Makati City, an injurious and defamatory
article, which was first published and accessed by the private complainant in Makati City, as follows:

x x x x (emphasis and underscoring in the original; italics supplied)

Petitioners moved to quash the Amended Information25 which, they alleged, still failed to vest
jurisdiction upon the public respondent because it failed to allege that the libelous articles were
"printed and first published" by the accused in Makati; and the prosecution erroneously laid the
venue of the case in the place where the offended party accessed the internet-published article.

By the assailed Order of April 22, 2008, the public respondent, applying Banal III, found the
Amended Information to be sufficient in form.

Petitioners’ motion for reconsideration26 having been denied by the public respondent by Joint
Resolution of August 12, 2008, they filed the present petition for Certiorari and Prohibition faulting
the public respondent for:

1. NOT FINDING THAT THE ACTS ALLEGED IN THE INFORMATION ARE NOT
PUNISHABLE BY LAW;

2. ADMITTING AN AMENDED INFORMATION WHOSE JURISDICTIONAL ALLEGATIONS

CONTINUES TO BE DEFICIENT; and

3. NOT RULING THAT AN AMENDMENT IN THE INFORMATION FOR THE PURPOSE OF

CURING JURISDICTIONAL DEFECTS IS ILLEGAL.27

With the filing of Gimenez’s Comment28 to the petition, the issues are: (1) whether petitioners
violated the rule on hierarchy of courts to thus render the petition dismissible; and (2) whether grave
abuse of discretion attended the public respondent’s admission of the Amended Information.

The established policy of strict observance of the judicial hierarchy of courts, 29 as a rule, requires that
recourse must first be made to the lower-ranked court exercising concurrent jurisdiction with a higher
court.30 A regard for judicial hierarchy clearly 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.31 The rule is not iron-clad, however, as it admits of certain exceptions.

Thus, a strict application of the rule is unnecessary when cases brought before the appellate courts
do not involve factual but purely legal questions. 32

In the present case, the substantive issue calls for the Court’s exercise of its discretionary authority,
by way of exception, in order to abbreviate the review process as petitioners raise a pure question of
law involving jurisdiction in criminal complaints for libel under Article 360 of the RPC –whether the
Amended Information is sufficient to sustain a charge for written defamation in light of the
requirements under Article 360 of the RPC, as amended by Republic Act (RA) No. 4363, reading:

Art. 360. Persons responsible.—Any person who shall publish, exhibit or cause the publication or
exhibition of any defamation in writing or by similar means, shall be responsible for the same.

The author or editor of a book or pamphlet, or the editor or business manager of a daily newspaper,
magazine or serial publication, shall be responsible for the defamations contained therein to the
same extent as if he were the author thereof.

The criminal action and civil action for damages in cases of written defamations, as provided for in
this chapter shall be filed simultaneously or separately with the Court of First Instance of
the province or city where the libelous article is printed and first published or where any of the
offended parties actually resides at the time of the commission of the offense: Provided, however,
That where one of the offended parties is a public officer whose office is in the City of Manila at the
time of the commission of the offense, the action shall be filed in the Court of First Instance of the
City of Manila or of the city or province where the libelous article is printed and first published, and in
case such public officer does not hold office in the City of Manila, the action shall be filed in the
Court of First Instance of the province or city where he held office at the time of the commission of
the offense or where the libelous article is printed and first published and in case one of the offended
parties is a private individual, the action shall be filed in the Court of First Instance of the province or
city where he actually resides at the time of the commission of the offense or where the libelous
matter is printed and first published x x x. (emphasis and underscoring supplied)

Venue is jurisdictional in criminal actions such that the place where the crime was committed
determines not only the venue of the action but constitutes an essential element of jurisdiction. 33 This
principle acquires even greater import in libel cases, given that Article 360, as amended, specifically
provides for the possible venues for the institution of the criminal and civil aspects of such cases.

In Macasaet,34 the Court reiterated its earlier pronouncements in Agbayani v. Sayo 35 which laid out
the rules on venue in libel cases, viz:

For the guidance, therefore, of both the bench and the bar, this Court finds it appropriate to reiterate
our earlier pronouncement in the case of Agbayani, to wit:

In order to obviate controversies as to the venue of the criminal action for written defamation, the
complaint or information should contain allegations as to whether, at the time the offense was
committed, the offended party was a public officer or a private individual and where he was actually
residing at that time. Whenever possible, the place where the written defamation was printed and
first published should likewise be alleged. That allegation would be a sine qua non if the
circumstance as to where the libel was printed and first published is used as the basis of the venue
of the action. (emphasis and underscoring supplied)
It becomes clear that the venue of libel cases where the complainant is a private individual is limited
to only either of two places, namely: 1) where the complainant actually resides at the time of the
commission of the offense; or 2) where the alleged defamatory article was printed and first
published. The Amended Information in the present case opted to lay the venue by availing of the
second. Thus, it stated that the offending article "was first published and accessed by the private
complainant in Makati City." In other words, it considered the phrase to be equivalent to the requisite
allegation of printing and first publication.

The insufficiency of the allegations in the Amended Information to vest jurisdiction in Makati
becomes pronounced upon an examination of the rationale for the amendment to Article 360 by RA
No. 4363. Chavez v. Court of Appeals 36 explained the nature of these changes:

Agbayani supplies a comprehensive restatement of the rules of venue in actions for criminal libel,
following the amendment by Rep. Act No. 4363 of the Revised Penal Code:

"Article 360 in its original form provided that the venue of the criminal and civil actions for written
defamations is the province wherein the libel was published, displayed or exhibited, regardless of the
place where the same was written, printed or composed. Article 360 originally did not specify the
public officers and the courts that may conduct the preliminary investigation of complaints for libel.

Before article 360 was amended, the rule was that a criminal action for libel may be instituted in any
jurisdiction where the libelous article was published or circulated, irrespective of where it was written
or printed (People v. Borja, 43 Phil. 618). Under that rule, the criminal action is transitory and the
injured party has a choice of venue.

Experience had shown that under that old rule the offended party could harass the accused in a libel
case by laying the venue of the criminal action in a remote or distant place.

Thus, in connection with an article published in the Daily Mirror and the Philippine Free Press, Pio
Pedrosa, Manuel V. Villareal and Joaquin Roces were charged with libel in the justice of the peace
court of San Fabian, Pangasinan (Amansec v. De Guzman, 93 Phil. 933).

To forestall such harassment, Republic Act No. 4363 was enacted. It lays down specific rules as to
the venue of the criminal action so as to prevent the offended party in written defamation cases from
inconveniencing the accused by means of out-of-town libel suits, meaning complaints filed in remote
municipal courts (Explanatory Note for the bill which became Republic Act No. 4363, Congressional
Record of May 20, 1965, pp. 424-5; Time, Inc. v. Reyes, L-28882, May 31, 1971, 39 SCRA 303,
311).

x x x x (emphasis and underscoring supplied)

Clearly, the evil sought to be prevented by the amendment to Article 360 was the indiscriminate or
arbitrary laying of the venue in libel cases in distant, isolated or far-flung areas, meant to accomplish
nothing more than harass or intimidate an accused. The disparity or unevenness of the situation
becomes even more acute where the offended party is a person of sufficient means or possesses
influence, and is motivated by spite or the need for revenge.

If the circumstances as to where the libel was printed and first published are used by the offended
party as basis for the venue in the criminal action, the Information must allege with
particularity where the defamatory article was printed and first published, as evidenced or supported
by, for instance, the address of their editorial or business offices in the case of newspapers,
magazines or serial publications. This pre-condition becomes necessary in order to forestall any
inclination to harass.

The same measure cannot be reasonably expected when it pertains to defamatory material
appearing on a website on the internet as there would be no way of determining the situs of its
printing and first publication. To credit Gimenez’s premise of equating his first access to the
defamatory article on petitioners’ website in Makati with "printing and first publication" would spawn
the very ills that the amendment to Article 360 of the RPC sought to discourage and prevent. It
hardly requires much imagination to see the chaos that would ensue in situations where the
website’s author or writer, a blogger or anyone who posts messages therein could be sued for libel
anywhere in the Philippines that the private complainant may have allegedly accessed the offending
website.

For the Court to hold that the Amended Information sufficiently vested jurisdiction in the courts of
Makati simply because the defamatory article was accessed therein would open the floodgates to
the libel suit being filed in all other locations where the pepcoalition website is likewise accessed or
capable of being accessed. 1avvphi1

Respecting the contention that the venue requirements imposed by Article 360, as amended, are
unduly oppressive, the Court’s pronouncements in Chavez 37 are instructive:

For us to grant the present petition, it would be necessary to abandon the Agbayani rule providing
that a private person must file the complaint for libel either in the place of printing and first
publication, or at the complainant’s place of residence. We would also have to abandon the
subsequent cases that reiterate this rule in Agbayani, such as Soriano, Agustin, and Macasaet.
There is no convincing reason to resort to such a radical action. These limitations imposed on libel
actions filed by private persons are hardly onerous, especially as they still allow such persons to file
the civil or criminal complaint in their respective places of residence, in which situation there is no
need to embark on a quest to determine with precision where the libelous matter was printed and
first published.

(Emphasis and underscoring supplied.)

IN FINE, the public respondent committed grave abuse of discretion in denying petitioners’ motion to
quash the Amended Information.

WHEREFORE, the petition is GRANTED. The assailed Order of April 22, 2008 and the Joint
Resolution of August 12, 2008 are hereby SET ASIDE. The Regional Trial Court of Makati City, Br.
149 is hereby DIRECTED TO QUASH the Amended Information in Criminal Case No. 06-876 and
DISMISS the case.

SO ORDERED.

G.R. No. 169509             June 16, 2006

JOCELYN E. CABO, Petitioner,
vs.
THE SANDIGANBAYAN, FOURTH DIVISION, THE SPECIAL PROSECUTOR OF THE
OMBUDSMAN and THE COMMISSION ON AUDIT, REGION XIII, Respondents.
 DECISION

YNARES-SANTIAGO, J.:

This is a special civil action for certiorari filed by petitioner Jocelyn E. Cabo seeking to nullify the
resolutions of the Sandiganbayan, Fourth Division, dated May 4 and July 20, 2005 in Criminal Case
No. 27959.

The following are the antecedent facts:

On June 26, 2004, an information for violation of Section 3(b) of R.A. 3019 or the Anti-Graft and
Corrupt Practices Act was filed against petitioner and her co-accused Bonifacio C. Balahay. The
information alleged:

That on or about 08 August 2000 in the Municipality of Barobo, Surigao del Sur, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, BONIFACIO C.
BALAHAY, then Mayor of the Municipality of Barobo, Surigao del Sur, a high ranking public official,
with the use of his influence as such public official, committing the offense in relation to his office,
together with JOCELYN CABO, did then and there, willfully, unlawfully and feloniously receive and
accept the amount of ONE HUNDRED FOUR THOUSAND ONE HUNDRED SIXTY TWO PESOS
AND 31/100 (P104,162.31) from said JOCELYN CABO, Business Manager of Orient Integrated
Development Consultancy, Inc. (OIDCI), a consultancy group charged with conducting a feasibility
study for the Community-Based Resource Management Project of the Municipality of Barobo, with
accused Cabo giving and granting the said amount to accused Balahay in consideration of the said
accused having officially intervened in the undertaking by the OIDCI of such contract for consultancy
services with the Municipality of Barobo.

CONTRARY TO LAW.1

Claiming that she was deprived of her right to a preliminary investigation as she never received any
notice to submit a counter-affidavit or countervailing evidence to prove her innocence, petitioner filed
a motion for reinvestigation2 before the Fourth Division of the Sandiganbayan, where the case was
raffled and docketed as Criminal Case No. 27959. The Sandiganbayan subsequently granted
petitioner’s motion on March 29, 2004 and directed the Office of the Special Prosecutor to conduct a
reinvestigation insofar as petitioner is concerned. 3

Meanwhile, petitioner filed a motion seeking the court’s permission to travel abroad for a family
vacation.4 The Sandiganbayan granted the same in an order dated May 14, 2004 that reads:

Acting on the Motion With Leave Of Court To Travel Abroad dated May 11, 2004 filed by accused
Jocelyn E. Cabo through counsel, Atty. Tomas N. Prado, and considering the well-taken reason
therein stated, the same is hereby GRANTED.

However, considering that this case is still pending reinvestigation/review before the Office of the
Special Prosecutor; considering further that the accused has not yet been arraigned by reason
thereof; and considering finally that there is a need for the Court to preserve its authority to conduct
trial in absentia should the accused fail to return to the Philippines, accused Jocelyn E. Cabo, with
her express conformity, is hereby ordered arraigned conditionally. If upon such
reinvestigation/review, it shall be found that there is no probable cause to proceed against said
accused, the conditional arraignment this morning shall be with no force and effect. However, if it
should be found that there is a need to amend the present indictment or to pave the way for the filing
of some other indictment/s, then the accused shall waive her right to object under Section 14, Rule
110 of the 2000 Rules of Criminal Procedure and her constitutional right to be protected against
double jeopardy.

When arraigned, the Information having been read in a language known and familiar to her, accused
Jocelyn E. Cabo, duly assisted by her counsel, Atty. Tomas N. Prado, pleaded not guilty to the
offense charged in the Information.

Accused Jocelyn E. Cabo, duly assisted by her counsel, shall affix her signature in the minutes of
the proceedings to signify her conformity to her acceptance of the conditional arraignment and the
legal consequences thereof as herein explained.

SO ORDERED.5

Petitioner returned from abroad on May 24, 2004. Thereafter, the Special Prosecutor concluded its
reinvestigation and found probable cause to charge her with violation of Section 3(b) of R.A. No.
3019.6 Petitioner filed a motion for reconsideration but the same was denied. 7 Thus, the
Sandiganbayan set anew the arraignment of petitioner and her co-accused on October 12, 2004. 8

On the day before the scheduled arraignment, petitioner filed an Urgent Manifestation With
Motion9 praying that "she be allowed to [re]iterate on her previous plea of ‘not guilty’ x x x entered
during her conditional arraignment held last May 14, 2004, so that she may be excused from
attending the scheduled arraignment for October 12, 2004." It does not appear, however, that the
Sandiganbayan acted upon the said motion.

The following day, petitioner’s co-accused Balahay failed to appear for arraignment. This prompted
the Sandiganbayan to order the arrest of Balahay as well the confiscation of his bail bond. 10 Upon
motion for reconsideration of Balahay, however, the Sandiganbayan recalled the warrant for his
arrest and reinstated the bail bond.11 His arraignment was subsequently reset for November 30,
2004.12

On November 24, 2004, Balahay, through counsel, filed a motion to quash the information on the
ground that the same does not charge any offense. 13 While Section 3(b) of R.A. No. 3019 penalizes
the act of "(d)irectly or indirectly requesting or receiving any gift, present, share, percentage, or
benefit, for himself or for another, from any person, in connection with any transaction between the
Government and any other party, wherein the public officer in his official capacity has to intervene
under the law," the information alleged only in general terms that Balahay "intervened in the
undertaking by the OIDCI of such contract for consultancy services with the Municipality of Barobo."
In other words, the information failed to allege that Balahay had to intervene in the said contract
under the law, in his official capacity as municipal mayor.

On January 18, 2005, the Sandiganbayan issued a resolution 14 sustaining Balahay’s contention that
the facts charged in the information do not constitute the offense of violation of Section 3(b) of R.A.
No. 3019. Apart from the failure to allege that Balahay had to officially intervene in the transaction
pursuant to law, it also failed to allege that Balahay accepted and received the money "for himself or
for another." The information was thus defective in that it failed to allege every single fact necessary
to constitute all the elements of the offense charged.

The Sandiganbayan, however, did not order the immediate quashal of the information. It held that
under Section 4, Rule 117 of the Rules of Court, "if the motion to quash is based on the ground that
the facts charged in the information do not constitute an offense x x x the (c)ourt should not quash
the information outright, but should instead direct the prosecution to correct the defect therein by
proper amendment. It is only when the prosecution fails or refuses to undertake such amendment, or
when despite such amendment the information still suffers from the same vice or defect," 15 that the
court would be finally justified in granting the motion to quash. The Sandiganbayan thus gave the
prosecution a period of 15 days from notice within which to file an amended information that is
sufficient as to both form and substance.

On February 7, 2005, the prosecution filed an amended information which incorporated all the
essential elements of the crime charged, to wit:

That on or about 08 August 2000, in the Municipality of Barobo, Surigao Del Sur, Philippines and
within the jurisdiction of this Honorable Court, the above-named accused BONIFACIO C. BALAHAY,
then Mayor of the Municipality of Barobo, Surigao Del Sur, a high ranking public official, in the
performance of his official functions, taking advantage of his official position, with grave abuse of
authority, and committing the offense in relation to his office, conspiring and confederating with
JOCELYN CABO, did then and there, willfully, unlawfully and feloniously receive and accept the
amount of ONE HUNDRED FOUR THOUSAND ONE HUNDRED SIXTY TWO PESOS AND 31/100
(P104,162.31) for his own benefit or use from said JOCELYN CABO, Business Manager of Orient
Integrated Development Consultancy, Inc. (OIDC), a consultancy group charged with conducting a
feasibility study for the Community-Based Resource Management Project of the Municipality of
Barobo, with accused Cabo giving and granting said amount to accused Balahay in consideration of
the contract for said feasibility study, which contract accused Balahay in his official capacity has to
intervene under the law.

CONTRARY TO LAW.16

Consequently, Balahay was sent a notice for his arraignment on the amended information. Petitioner
was likewise notified of her re-arraignment which was set on April 14, 2005. 17 However, on April 11,
2005, petitioner filed a Motion to Cancel Second Arraignment 18 on the ground that the amended
information pertained to Balahay alone. Petitioner claimed that she could no longer be re-arraigned
on the amended information since substantial amendment of an information is not allowed after a
plea had already been made thereon.

On May 4, 2005, the Sandiganbayan issued the first assailed resolution denying petitioner’s motion
for lack of merit, to wit:

[T]he arraignment of accused Cabo on the original information was only conditional in nature and
that the same was resorted to as a mere accommodation in her favor to enable her to travel abroad
without this Court losing its ability to conduct trial in absentia in the event she decides to abscond.
However, as clearly stated in the Court’s Order of May 14, 2004, accused Cabo agreed with the
condition that should there be a need to amend the information, she would thereby waive, not only
her right to object to the amended information, but also her constitutional protection against double
jeopardy. Now that the original information has been superseded by an amended information, which
was specifically filed by the prosecution, and thereafter admitted by this Court, on the basis of
Section 4, Rule 117 of the 2000 Rules of Criminal Procedure, accused Cabo is already estopped
from raising any objection thereto.19

Petitioner filed a motion for reconsideration 20 from the foregoing resolution on the additional ground
that double jeopardy had already set in. She asserted that her conditional arraignment under the
original information had been validated or confirmed by her formal manifestation dated October 7,
2004, wherein she reiterated her plea of "not guilty." Thus, her arraignment on the original
information was no longer conditional in nature such that double jeopardy would attach.
The Sandiganbayan denied petitioner’s motion for reconsideration in the second assailed resolution
dated July 20, 2005.21 Consequently, petitioner filed the instant special civil action for certiorari under
Rule 65 of the Rules of Court alleging that the Sandiganbayan gravely abused its discretion in
holding that her arraignment on the original information was conditional in nature and that a re-
arraignment on the amended information would not put her in double jeopardy.

The issue here boils down to whether double jeopardy would attach on the basis of the "not guilty"
plea entered by petitioner on the original information. She argues that it would, considering that her
arraignment, which was initially conditional in nature, was ratified when she confirmed her "not
guilty" plea by means of a written manifestation. In other words, the trial court could no longer assert
that she waived her right to the filing of an amended information under the terms of her conditional
arraignment because she has, in effect, unconditionally affirmed the same.

Petitioner’s assertions must fail.

Initially, it must be pointed out that the Sandiganbayan’s practice of "conditionally" arraigning the
accused pending reinvestigation of the case by the Ombudsman is not specifically provided in the
regular rules of procedure.22 In People v. Espinosa,23 however, the Court tangentially recognized the
practice of "conditionally" arraigning the accused, provided that the alleged conditions attached
thereto should be "unmistakable, express, informed and enlightened." The Court ventured further by
requiring that said conditions be expressly stated in the order disposing of the arraignment.
Otherwise, it was held that the arraignment should be deemed simple and unconditional. 24

In the case at bar, the Sandiganbayan Order dated May 14, 2004 unequivocally set forth the
conditions for petitioner’s arraignment pending reinvestigation of the case as well as her travel
abroad. Among the conditions specified in said order is "if it should be found that there is a need to
amend the present indictment x x x, then the accused shall waive her right to object under Section
14, Rule 110 of the 2000 Rules of Criminal Procedure and her constitutional right to be protected
against double jeopardy." Petitioner was duly assisted by counsel during the conditional arraignment
and was presumably apprised of the legal consequences of such conditions. In fact, she signed the
minutes of the proceedings which could only signify her informed acceptance of and conformity with
the terms of the conditional arraignment.

Thus, petitioner cannot now be allowed to turn her back on such conditions on the pretext that she
affirmed her conditional arraignment by means of a written manifestation. To begin with, there is no
showing that the Sandiganbayan ruled on her written manifestation and motion that she be allowed
to merely confirm her previous plea on the original information. It is likewise doubtful that petitioner
may legally confirm her conditional arraignment by means of a mere written motion or manifestation.
Section 1(b), Rule 116 of the Rules of Court explicitly requires that "(t)he accused must be present at
the arraignment and must personally enter his plea."

At any rate, with or without a valid plea, still petitioner cannot rely upon the principle of double
jeopardy to avoid arraignment on the amended information. It is elementary that for double jeopardy
to attach, the case against the accused must have been dismissed or otherwise terminated without
his express consent by a court of competent jurisdiction, upon a valid information sufficient in form
and substance and the accused pleaded to the charge. 25 In the instant case, the original information
to which petitioner entered a plea of "not guilty" was neither valid nor sufficient to sustain a
conviction, and the criminal case was also neither dismissed nor terminated. Double jeopardy could
not, therefore, attach even if petitioner is assumed to have been unconditionally arraigned on the
original charge.
It should be noted that the previous information in Criminal Case No. 27959 failed to allege all the
essential elements of violation of Section 3(b), R.A. No. 3019. It, in fact, did not charge any offense
and was, to all intents and purposes, void and defective. A valid conviction cannot be sustained on
the basis of such information. Petitioner was resultantly not placed in danger of being convicted
when she entered her plea of "not guilty" to the insufficient indictment.

Moreover, there was no dismissal or termination of the case against petitioner. What the
Sandiganbayan ordered was for the amendment of the information pursuant to the express provision
of Section 4, Rule 117, which states:

SEC. 4. Amendment of complaint or information.- If the motion to quash is based on an alleged

defect of the complaint or information which can be cured by amendment, the court shall order that
an amendment be made.

If it is based on the ground that the facts charged do not constitute an offense, the prosecution shall
be given by the court an opportunity to correct the defect by amendment. The motion shall be
granted if the prosecution fails to make the amendment, or the complaint or information still suffers
from the same defect despite the amendment. (Emphasis supplied)

The Sandiganbayan correctly applied the foregoing provision when petitioner’s co-accused filed a
motion to quash the original information on the ground that the same does not charge an offense.
Contrary to petitioner’s submission, the original information can be cured by amendment even after
she had pleaded thereto, since the amendments ordered by the court below were only as to matters
of form and not of substance. The amendment ordered by the Sandiganbayan did not violate the first
paragraph of Section 14, Rule 110, which provides:

SEC. 14. Amendment or substitution. – A complaint or information may be amended, in form or in

substance, without leave court, at any time before the accused enters his plea. After the plea and
during the trial, a formal amendment may only be made with leave of court and when it can be done
without causing prejudice to the rights of the accused.

xxxx

In Poblete v. Sandoval,26 the Court explained that an amendment is only in form when it merely adds
specifications to eliminate vagueness in the information and does not introduce new and material
facts. Amendment of an information after the accused has pleaded thereto is allowed, if the
amended information merely states with additional precision something which is already contained in
the original information and which, therefore, adds nothing essential for conviction for the crime
charged.

In the case at bar, while certain elements of the crime charged were missing in the indictment, the
amended information did not change the nature of the offense which is for violation of Section 3(b),
R.A. No. 3019. The amended information merely clarified the factual averments in the accusatory
portion of the previous information, in order to reflect with definiteness the essential elements of the
crime charged.

An examination of the two informations in this case would justify the preceding observation. While
the first information alleged that Balahay committed the offense "with the use of his influence as
such public official" "together with" petitioner, the amended information stated that he did so "in the
performance of his official functions, taking advantage of his official position, with grave abuse of
authority" while "conspiring and confederating" with petitioner. Then too, while it was averred
previously that Balahay received and accepted the money from petitioner, with the latter "giving and
granting the said amount to accused Balahay in consideration of the said accused having officially
intervened in the undertaking by the OIDCI of such contract for consultancy services", the amended
information simply specified that Balahay received the money "for his own benefit or use" and that
the contract mentioned in the first information was one that Balahay, "in his official capacity has to
intervene under the law."

Consequently, even if we treat petitioner’s arraignment on the original information as "unconditional,"

the same would not bar the amendment of the original information under Section 14, Rule 110. Re-
arraignment on the amended information will not prejudice petitioner’s rights since the alterations
introduced therein did not change the nature of the crime. As held in People v. Casey: 27

The test as to whether a defendant is prejudiced by the amendment of an information has been said
to be whether a defense under the information as it originally stood would be available after the
amendment is made, and whether any evidence defendant might have would be equally applicable
to the information in the one form as in the other. A look into Our jurisprudence on the matter shows
that an amendment to an information introduced after the accused has pleaded not guilty thereto,
which does not change the nature of the crime alleged therein, does not expose the accused to a
charge which could call for a higher penalty, does not affect the essence of the offense or cause
surprise or deprive the accused of an opportunity to meet the new averment had each been held to
be one of form and not of substance – not prejudicial to the accused and, therefore, not prohibited by
Section 13 (now Section 14), Rule 110 of the Revised Rules of Court.

Likewise, it is not necessary, as petitioner suggests, to dismiss the original complaint under the last
paragraph of Section 14, Rule 110, which states:

xxxx

If it appears at any time before judgment that a mistake has been made in charging the proper
offense, the court shall dismiss the original complaint or information upon the filing of a new one
charging the proper offense in accordance with section 11, Rule 119, provided the accused would
not be placed in double jeopardy. The court may require the witnesses to give bail for their
appearance at the trial.

The afore-cited rule is inapplicable to the case at bar for the simple reason that there was no mistake
in charging the proper offense in the original information. As correctly observed by the
Sandiganbayan:

[I]t is hardly necessary for this Court to order the dismissal of the original information and then direct
the filing of a new one "charging the proper offense". The reason for this is obvious. The prosecution
did not commit a mistake in charging the proper offense; rather, it merely failed to file an information
sufficient to charge the offense it intended to charge, namely, violation of Section 3(b) of R.A. No.
3019. Section 14, Rule 110 of the 2000 Rules of Criminal Procedure apparently relied upon by
accused Cabo contemplates a situation where the accused will be charged with an offense different
from or is otherwise not necessarily included in the offense charged in the information to be
dismissed by the Court. In the case at bar, however, accused Cabo will not be charged with a
different offense or with an offense that is not necessarily included in the offense charged in the
original information, but with the very same offense that the prosecution intended to charge her in
the first place, that is, violation of Section 3(b) of R.A. No. 3019. 28

All told, the Sandiganbayan did not commit grave abuse of discretion when it ordered the re-
arraignment of petitioner on the amended information. Double jeopardy did not attach by virtue of
petitioner’s "conditional arraignment" on the first information. It is well-settled that for a claim of
double jeopardy to prosper, the following requisites must concur: (1) there is a complaint or
information or other formal charge sufficient in form and substance to sustain a conviction; (2) the
same is filed before a court of competent jurisdiction; (3) there is a valid arraignment or plea to the
charges; and (4) the accused is convicted or acquitted or the case is otherwise dismissed or
terminated without his express consent.29 The first and fourth requisites are not present in the case
at bar.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

G.R. Nos. 172476-99               September 15, 2010

BRIG. GEN. (Ret.) JOSE RAMISCAL, JR., Petitioner,

vs.
SANDIGANBAYAN and PEOPLE OF THE PHILIPPINES, Respondents.

DECISION

CARPIO, J.:

The Case

This is a special civil action for certiorari1 seeking to annul the 5 April 2006 Resolution2 of
the Sandiganbayan Fourth Division in Criminal Case Nos. 25122-45. The assailed Resolution denied
petitioner’s motion to set aside his arraignment on 26 February 2006 pending resolution of his
motion for reconsideration of the Ombudsman’s finding of probable cause against him.

The Facts

Petitioner Jose S. Ramiscal, Jr. was a retired officer of the Armed Forces of the Philippines (AFP),
with the rank of Brigadier General, when he served as President of the AFP-Retirement and
Separation Benefits System (AFP-RSBS) from 5 April 1994 to 27 July 1998. 3

During petitioner’s term as president of AFP-RSBS, the Board of Trustees of AFP-RSBS approved
the acquisition of 15,020 square meters of land situated in General Santos City for development as
housing projects.4

On 1 August 1997, AFP-RSBS, represented by petitioner, and Atty. Nilo J. Flaviano, as attorney-in-
fact of the 12 individual vendors,5 executed and signed bilateral deeds of sale over the subject
property, at the agreed price of ₱10,500.00 per square meter. Petitioner forthwith caused the
payment to the individual vendors of the purchase price of ₱10,500.00 per square meter of the
property.

Subsequently, Flaviano executed and signed unilateral deeds of sale over the same property. The
unilateral deeds of sale reflected a purchase price of only ₱3,000.00 per square meter instead of the
actual purchase price of ₱10,500.00 per square meter. On 24 September 1997, Flaviano presented
the unilateral deeds of sale for registration. The unilateral deeds of sale became the basis of the
transfer certificates of title issued by the Register of Deeds of General Santos City to AFP-RSBS. 6
On 18 December 1997, Luwalhati R. Antonino, the Congresswoman representing the first district of
South Cotabato, which includes General Santos City, filed in the Ombudsman a complaint-
affidavit7 against petitioner, along with 27 other respondents, for (1) violation of Republic Act No.
3019, otherwise known as the Anti-Graft and Corrupt Practices Act; and (2) malversation of public
funds or property through falsification of public documents. The case was docketed as Case No.
OMB-3-98-0020.

After preliminary investigation, the Ombudsman, in its 20 January 1999 Resolution, 8 found petitioner
probably guilty of violation of Section 3(e) of RA 3019 and falsification of public documents, thus:

WHEREFORE, PREMISES CONSIDERED, this Office finds and so holds that the following crimes
were committed and that respondents, whose names appear below, are probably guilty thereof:

xxxx

4. JOSE RAMISCAL, JR., WILFREDO PABALAN, NILO FLAVIANO, conspirators for twelve (12)
counts of falsification of public documents relative to the twelve (12) unilateral Deeds of Sale;

xxxx

6. JOSE RAMISCAL, JR. WILFREDO PABALAN, and NILO FLAVIANO twelve (12) counts of
violation of section 3(e) of RA 3019 for short-changing the government in the correct amount of
taxes due for the sale of Lot X to AFP-RSBS;9

On 28 January 1999, the Ombudsman filed in the Sandiganbayan 12 informations 10 for violation of
Section 3(e) of RA 3019 and 12 informations 11 for falsification of public documents against petitioner
and several other co-accused.

Petitioner filed his first motion for reconsideration dated 12 February 1999, 12 with a supplemental
motion dated 28 May 1999,13 of the Ombudsman’s finding of probable cause against him. In its 11
June 1999 Order,14 the Sandiganbayan disposed of petitioner’s first motion for reconsideration, thus:

WHEREFORE, the prosecution is given 60 days from today within which to evaluate its evidence
and to do whatever is appropriate on the Motion for Reconsideration dated February 12, 1999 and
supplemental motion thereof dated May 28, 1999 of accused Jose Ramiscal and to inform this Court
within the said period as to its findings and recommendations together with the action thereon of the
Ombudsman.

In a memorandum dated 22 November 2001, the Office of the Special Prosecutor (OMB-OSP)
recommended that petitioner be excluded from the informations. On review, the Office of Legal
Affairs (OMB-OLA), in a memorandum dated 18 December 2001, recommended the contrary,
stressing that petitioner participated in and affixed his signature on the contracts to sell, bilateral
deeds of sale, and various agreements, vouchers, and checks for the purchase of the subject
property.15

The memoranda of OMB-OSP and OMB-OLA were forwarded for comment to the Office of the
Ombudsman for Military (OMB-Military). In a memorandum dated 21 August 2002, the OMB-Military
adopted the memorandum of OMB-OSP recommending the dropping of petitioner’s name from the
informations. Acting Ombudsman Margarito Gervacio approved the recommendation of the OMB-
Military. However, the recommendation of the OMB-Military was not manifested before the
Sandiganbayan as a final disposition of petitioner’s first motion for reconsideration.
A panel of prosecutors16 was tasked to review the records of the case. After thorough review, the
panel of prosecutors found that petitioner indeed participated in and affixed his signature on the
contracts to sell, bilateral deeds of sale, and various agreements, vouchers, and checks for the
purchase of the property at the price of ₱10,500.00 per square meter. The panel of prosecutors
posited that petitioner could not feign ignorance of the execution of the unilateral deeds of sale,
which indicated the false purchase price of ₱3,000.00 per square meter. The panel of prosecutors
concluded that probable cause existed for petitioner’s continued prosecution. In its 19 December
2005 memorandum,17 the panel of prosecutors recommended the following:

WHEREFORE, premises considered, undersigned prosecutors recommend the following:

1. The August 2002 approved Recommendation of the Ombudsman-Military be set aside

and the Motion for Reconsideration filed by Ramiscal (petitioner) be DENIED;

2. Another information for violation of Section 3(e) of RA 3019 be filed against Ramiscal and
all the other accused for causing damage to the government when it caused the payment of
the amount of Php 10,500.00 per square meter for the subject lots when the actual amount
should only be Php 3,000.00 per square meter. 18 (Emphasis supplied)

Ombudsman Ma. Merceditas N. Gutierrez approved the recommendation of the panel of

prosecutors. Upon receipt of the final findings of the Ombudsman, the Sandiganbayan scheduled the
arraignment of petitioner.

Meanwhile, on 26 January 2006, petitioner filed his second motion for reconsideration 19 of the
Ombudsman’s finding of probable cause against him.

On 26 February 2006, petitioner was arraigned. For his refusal to enter a plea,
the Sandiganbayan entered in his favor a plea of not guilty. On 9 March 2006, petitioner filed a
motion to set aside his arraignment 20 pending resolution of his second motion for reconsideration of
the Ombudsman’s finding of probable cause against him.

The Ruling of the Sandiganbayan

The Sandiganbayan pointed out that petitioner’s second motion for reconsideration of the
Ombudsman’s finding of probable cause against him was a prohibited pleading. The Sandiganbayan
explained that whatever defense or evidence petitioner may have should be ventilated in the trial of
the case. In its assailed 5 April 2006 Resolution, the Sandiganbayan denied for lack of merit
petitioner’s motion to set aside his arraignment, thus:

WHEREFORE, the Motion to Set Aside Arraignment is hereby DENIED for lack of merit.

SO ORDERED.21

The Issue

Did the Sandiganbayan commit grave abuse of discretion when it denied petitioner’s motion to set
aside his arraignment pending resolution of his second motion for reconsideration of the
Ombudsman’s finding of probable cause against him?

The Court’s Ruling

The petition has no merit.

Petitioner contends that the Ombudsman should have excluded him from the informations. He
claims lack of probable cause to indict him considering the prior findings of the Ombudsman
recommending the dropping of the cases against him. Petitioner claims that heads of offices have to
rely to a reasonable extent on their subordinates and that there should be grounds other than the
mere signature appearing on a questioned document to sustain a conspiracy charge.

Respondent Sandiganbayan counters that it correctly denied petitioner’s motion to set aside his
arraignment. Respondent court argues that petitioner’s motion for reconsideration, filed on 26
January 2006 and pending with the Ombudsman at the time of his arraignment, violated Section 7,
Rule II of the Rules of Procedure of the Office of the Ombudsman, as amended. Respondent court
maintains that the memorandum of the panel of prosecutors finding probable cause against
petitioner was the final decision of the Ombudsman.

The Rules of Procedure of the Office of the Ombudsman, as amended by Administrative Order No.
15, Series of 2001,22 sanction the immediate filing of an information in the proper court upon a finding
of probable cause, even during the pendency of a motion for reconsideration. Section 7, Rule II of
the Rules, as amended, provides:

Section 7. Motion for Reconsideration. –

a) Only one motion for reconsideration or reinvestigation of an approved order or resolution

shall be allowed, the same to be filed within five (5) days from notice thereof with the Office
of the Ombudsman, or the proper Deputy Ombudsman as the case may be, with
corresponding leave of court in cases where the information has already been filed in court;

b) The filing of a motion for reconsideration/reinvestigation shall not bar the filing of the

corresponding information in Court on the basis of the finding of probable cause in the
resolution subject of the motion. (Emphasis supplied)

If the filing of a motion for reconsideration of the resolution finding probable cause cannot bar the
filing of the corresponding information, then neither can it bar the arraignment of the accused, which
in the normal course of criminal procedure logically follows the filing of the information.

An arraignment is that stage where, in the mode and manner required by the Rules, an accused, for
the first time, is granted the opportunity to know the precise charge that confronts him. The accused
is formally informed of the charges against him, to which he enters a plea of guilty or not guilty. 23

Under Section 7 of Republic Act No. 8493,24 otherwise known as the Speedy Trial Act of 1998, the
court must proceed with the arraignment of an accused within 30 days from the filing of the
information or from the date the accused has appeared before the court in which the charge is
pending, whichever is later, thus:

Section 7. Time Limit Between Filing of Information and Arraignment and Between Arraignment and
Trial. - The arraignment of an accused shall be held within thirty (30) days from the filing of
the information, or from the date the accused has appeared before the justice, judge or court
in which the charge is pending, whichever date last occurs. x x x (Emphasis supplied)

Section 1(g), Rule 116 of the Rules of Court, which implements Section 7 of RA 8493, provides:
Section 1. Arraignment and plea; how made. –

(g) Unless a shorter period is provided by special law or Supreme Court circular, the arraignment
shall be held within thirty (30) days from the date the court acquires jurisdiction over the
person of the accused. xxx (Emphasis supplied)

Section 1(g), Rule 116 of the Rules of Court and the last clause of Section 7 of RA 8493 mean the
same thing, that the 30-day period shall be counted from the time the court acquires jurisdiction over
the person of the accused, which is when the accused appears before the court.

The grounds for suspension of arraignment are provided under Section 11, Rule 116 of the Rules of
Court, which applies suppletorily in matters not provided under the Rules of Procedure of the Office
of the Ombudsman or the Revised Internal Rules of the Sandiganbayan, thus:

Sec. 11. Suspension of arraignment. – Upon motion by the proper party, the arraignment shall be
suspended in the following cases:

(a) The accused appears to be suffering from an unsound mental condition which effectively
renders him unable to fully understand the charge against him and to plead intelligently
thereto. In such case, the court shall order his mental examination and, if necessary, his
confinement for such purpose.

(b) There exists a prejudicial question; and

(c) A petition for review of the resolution of the prosecutor is pending at either the
Department of Justice, or the Office of the President; provided, that the period of suspension
shall not exceed sixty (60) days counted from the filing of the petition with the reviewing
office.25

Petitioner failed to show that any of the instances constituting a valid ground for suspension of
arraignment obtained in this case. Thus, the Sandiganbayan committed no error when it proceeded
with petitioner’s arraignment, as mandated by Section 7 of RA 8493.

Further, as correctly pointed out by the Sandiganbayan in its assailed Resolution, petitioner’s motion
for reconsideration filed on 26 January 2006 was already his second motion for reconsideration of
the Ombudsman’s finding of probable cause against him. The Ombudsman, in its 19 December
2005 memorandum, has already denied petitioner’s first motion for reconsideration, 26 impugning for
the first time the Ombudsman’s finding of probable cause against him. Under Section 7, Rule II of
the Rules of Procedure of the Office of the Ombudsman, petitioner can no longer file another motion
for reconsideration questioning yet again the same finding of the Ombudsman. Otherwise, there will
be no end to litigation.

We agree with the Sandiganbayan that petitioner’s defenses are evidentiary in nature and are best
threshed out in the trial of the case on the merits. Petitioner’s claim that the Ombudsman made
conflicting conclusions on the existence of probable cause against him is baseless. The
memorandum of the OMB-Military, recommending the dropping of the cases against petitioner, has
been effectively overruled by the memorandum of the panel of prosecutors, thus:

WHEREFORE, premises considered, undersigned prosecutors recommend the following:

1. The August 2002 approved Recommendation of the Ombudsman-Military be set aside and
the Motion for Reconsideration filed by Ramiscal be DENIED; 27 (Emphasis supplied)

As the final word on the matter, the decision of the panel of prosecutors finding probable cause
against petitioner prevails. This Court does not ordinarily interfere with the Ombudsman’s finding of
probable cause.28 The Ombudsman is endowed with a wide latitude of investigatory and prosecutory
prerogatives in the exercise of its power to pass upon criminal complaints. 29 As this Court succinctly
stated in Alba v. Hon. Nitorreda:30

Moreover, this Court has consistently refrained from interfering with the exercise by the Ombudsman
of his constitutionally mandated investigatory and prosecutory powers. Otherwise stated, it is beyond
the ambit of this Court to review the exercise of discretion of the Ombudsman in prosecuting or
dismissing a complaint filed before it. Such initiative and independence are inherent in the
Ombudsman who, beholden to no one, acts as the champion of the people and preserver of the
integrity of the public service.31

In Ocampo, IV v. Ombudsman,32 the Court explained the rationale behind this policy, thus:

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 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. 33

Significantly, while it is the Ombudsman who has the full discretion to determine whether or not a
criminal case should be filed in the Sandiganbayan, once the case has been filed with said court, it is
the Sandiganbayan, and no longer the Ombudsman, which has full control of the case. 34 1avvphi1

In this case, petitioner failed to establish that the Sandiganbayan committed grave abuse of
discretion amounting to lack or excess of jurisdiction when it denied petitioner’s motion to set aside
his arraignment. There is grave abuse of discretion when power is exercised in an arbitrary,
capricious, whimsical, or despotic manner by reason of passion or personal hostility so patent and
gross as to amount to evasion of a positive duty or virtual refusal to perform a duty enjoined by law. 35

Absent a showing of grave abuse of discretion, this Court will not interfere with the Sandiganbayan’s
jurisdiction and control over a case properly filed before it. The Sandiganbayan is empowered to
proceed with the trial of the case in the manner it determines best conducive to orderly proceedings
and speedy termination of the case.36 There being no showing of grave abuse of discretion on its
part, the Sandiganbayan should continue its proceedings with all deliberate dispatch.

We remind respondent to abide by this Court’s ruling in Republic v. Sandiganbayan,37 where we

stated that the mere filing of a petition for certiorari under Rule 65 of the Rules of Court does not by
itself merit a suspension of the proceedings before the Sandiganbayan, unless a temporary
restraining order or a writ of preliminary injunction has been issued against the Sandiganbayan.
Section 7, Rule 65 of the Rules of Court so provides:

Section 7. Expediting proceedings; injunctive relief. – The court in which the petition [for certiorari,
prohibition and mandamus] is filed may issue orders expediting the proceedings, and it may also
grant a temporary restraining order or a writ of preliminary injunction for the preservation of the rights
of the parties pending such proceedings. The petition shall not interrupt the course of the
principal case unless a temporary restraining order or a writ of preliminary injunction has
been issued against the public respondent from further proceeding in the case. (Emphasis
supplied)

WHEREFORE, we DENY the petition. We AFFIRM the assailed 5 April 2006 Resolution of

the Sandiganbayan in Criminal Case Nos. 25122-45, which denied petitioner’s motion to set aside
his arraignment. This Decision is immediately executory.

Costs against petitioner.

SO ORDERED.

G.R. No. 167571             November 25, 2008

LUIS PANAGUITON, JR., petitioner

vs.
DEPARTMENT OF JUSTICE, RAMON C. TONGSON and RODRIGO G. CAWILI, respondents.

DECISION

TINGA, J.:

This is a Petition for Review1 of the resolutions of the Court of Appeals dated 29 October 2004 and 21
March 2005 in CA G.R. SP No. 87119, which dismissed Luis Panaguiton, Jr.'s (petitioner's) petition for
certiorari and his subsequent motion for reconsideration. 2

The facts, as culled from the records, follow.

In 1992, Rodrigo Cawili (Cawili) borrowed various sums of money amounting to P1,979,459.00 from
petitioner. On 8 January 1993, Cawili and his business associate, Ramon C. Tongson (Tongson), jointly
issued in favor of petitioner three (3) checks in payment of the said loans. Significantly, all three (3)
checks bore the signatures of both Cawili and Tongson. Upon presentment for payment on 18 March
1993, the checks were dishonored, either for insufficiency of funds or by the closure of the account.
Petitioner made formal demands to pay the amounts of the checks upon Cawili on 23 May 1995 and upon
Tongson on 26 June 1995, but to no avail.3

On 24 August 1995, petitioner filed a complaint against Cawili and Tongson 4 for violating Batas
Pambansa Bilang 22 (B.P. Blg. 22)5 before the Quezon City Prosecutor's Office. During the preliminary
investigation, only Tongson appeared and filed his counter-affidavit. 6 Tongson claimed that he had been
unjustly included as party-respondent in the case since petitioner had lent money to Cawili in the latter's
personal capacity. Moreover, like petitioner, he had lent various sums to Cawili and in appreciation of his
services, he was

offered to be an officer of Roma Oil Corporation. He averred that he was not Cawili's business associate;
in fact, he himself had filed several criminal cases against Cawili for violation of B.P. Blg. 22. Tongson
denied that he had issued the bounced checks and pointed out that his signatures on the said checks had
been falsified.
To counter these allegations, petitioner presented several documents showing Tongson's signatures,
which were purportedly the same as the those appearing on the checks. 7 He also showed a copy of an
affidavit of adverse claim wherein Tongson himself had claimed to be Cawili's business associate. 8

In a resolution dated 6 December 1995,9 City Prosecutor III Eliodoro V. Lara found probable cause only
against Cawili and dismissed the charges against Tongson. Petitioner filed a partial appeal before the
Department of Justice (DOJ) even while the case against Cawili was filed before the proper court. In a
letter-resolution dated 11 July 1997,10 after finding that it was possible for Tongson to co-sign the bounced
checks and that he had deliberately altered his signature in the pleadings submitted during the preliminary
investigation, Chief State Prosecutor Jovencito R. Zuño directed the City Prosecutor of Quezon City to
conduct a reinvestigation of the case against Tongson and to refer the questioned signatures to the
National Bureau of Investigation (NBI).

Tongson moved for the reconsideration of the resolution, but his motion was denied for lack of merit.

On 15 March 1999, Assistant City Prosecutor Ma. Lelibet S. Sampaga (ACP Sampaga) dismissed the
complaint against Tongson without referring the matter to the NBI per the Chief State Prosecutor's
resolution. In her resolution,11 ACP Sampaga held that the case had already prescribed pursuant to Act
No. 3326, as amended,12 which provides that violations penalized by B.P. Blg. 22 shall prescribe after four
(4) years. In this case, the four (4)-year period started on the date the checks were dishonored, or on 20
January 1993 and 18 March 1993. The filing of the complaint before the Quezon City Prosecutor on 24
August 1995 did not interrupt the running of the prescriptive period, as the law contemplates judicial, and
not administrative proceedings. Thus, considering that from 1993 to 1998, more than four (4) years had
already elapsed and no information had as yet been filed against Tongson, the alleged violation of B.P.
Blg. 22 imputed to him had already prescribed.13 Moreover, ACP Sampaga stated that the order of the
Chief State Prosecutor to refer the matter to the NBI could no longer be sanctioned under Section 3, Rule
112 of the Rules of Criminal Procedure because the initiative should come from petitioner himself and not
the investigating prosecutor.14 Finally, ACP Sampaga found that Tongson had no dealings with
petitioner.15

Petitioner appealed to the DOJ. But the DOJ, through Undersecretary Manuel A.J. Teehankee, dismissed
the same, stating that the offense had already prescribed pursuant to Act No. 3326. 16 Petitioner filed a
motion for reconsideration of the DOJ resolution. On 3 April 2003, 17 the DOJ, this time through then
Undersecretary Ma. Merceditas N. Gutierrez, ruled in his favor and declared that the offense had not
prescribed and that the filing of the complaint with the prosecutor's office interrupted the running of the
prescriptive period citing Ingco v. Sandiganbayan.18 Thus, the Office of the City Prosecutor of Quezon
City was directed to file three (3) separate informations against Tongson for violation of B.P. Blg. 22. 19 On
8 July 2003, the City Prosecutor's Office filed an information 20 charging petitioner with three (3) counts of
violation of B.P. Blg. 22.21

However, in a resolution dated 9 August 2004,22 the DOJ, presumably acting on a motion for
reconsideration filed by Tongson, ruled that the subject offense had already prescribed and ordered "the
withdrawal of the three (3) informations for violation of B.P. Blg. 22" against Tongson. In justifying its
sudden turnabout, the DOJ explained that Act No. 3326 applies to violations of special acts that do not
provide for a prescriptive period for the offenses thereunder. Since B.P. Blg. 22, as a special act, does not
provide for the prescription of the offense it defines and punishes, Act No. 3326 applies to it, and not Art.
90 of the Revised Penal Code which governs the prescription of offenses penalized thereunder. 23 The
DOJ also cited the case of Zaldivia v. Reyes, Jr.,24 wherein the Supreme Court ruled that the proceedings
referred to in Act No. 3326, as amended, are judicial proceedings, and not the one before the
prosecutor's office.

Petitioner thus filed a petition for certiorari 25 before the Court of Appeals assailing the 9 August 2004
resolution of the DOJ. The petition was dismissed by the Court of Appeals in view of petitioner's failure to
attach a proper verification and certification of non-forum
shopping. The Court of Appeals also noted that the 3 April 2003 resolution of the DOJ attached to the
petition is a mere photocopy.26 Petitioner moved for the reconsideration of the appellate court's resolution,
attaching to said motion an amended Verification/Certification of Non-Forum Shopping. 27 Still, the Court of
Appeals denied petitioner's motion, stating that subsequent compliance with the formal requirements
would not per se warrant a reconsideration of its resolution. Besides, the Court of Appeals added, the
petition is patently without merit and the questions raised therein are too unsubstantial to require
consideration.28

In the instant petition, petitioner claims that the Court of Appeals committed grave error in dismissing his
petition on technical grounds and in ruling that the petition before it was patently without merit and the
questions are too unsubstantial to require consideration.

The DOJ, in its comment,29 states that the Court of Appeals did not err in dismissing the petition for non-
compliance with the Rules of Court. It also reiterates that the filing of a complaint with the Office of the
City Prosecutor of Quezon City does not interrupt the running of the prescriptive period for violation of
B.P. Blg. 22. It argues that under B.P. Blg. 22, a special law which does not provide for its own
prescriptive period, offenses prescribe in four (4) years in accordance with Act No. 3326.

Cawili and Tongson submitted their comment, arguing that the Court of Appeals did not err in dismissing
the petition for certiorari. They claim that the offense of violation of B.P. Blg. 22 has already prescribed
per Act No. 3326. In addition, they claim that the long delay, attributable to petitioner and the State,
violated their constitutional right to speedy disposition of cases. 30

The petition is meritorious.

First on the technical issues.

Petitioner submits that the verification attached to his petition before the Court of Appeals substantially
complies with the rules, the verification being intended simply to secure an assurance that the allegations
in the pleading are true and correct and not a product of the imagination or a matter of speculation. He
points out that this Court has held in a number of cases that a deficiency in the verification can be
excused or dispensed with, the defect being neither jurisdictional nor always fatal. 31

Indeed, the verification is merely a formal requirement intended to secure an assurance that matters
which are alleged are true and correct–the court may simply order the correction of unverified pleadings
or act on them and waive strict compliance with the rules in order that the ends of justice may be
served,32 as in the instant case. In the case at bar, we find that by attaching the pertinent verification to his
motion for reconsideration, petitioner sufficiently complied with the verification requirement.

Petitioner also submits that the Court of Appeals erred in dismissing the petition on the ground that there
was failure to attach a certified true copy or duplicate original of the 3 April 2003 resolution of the DOJ.
We agree. A plain reading of the petition before the

Court of Appeals shows that it seeks the annulment of the DOJ resolution dated 9 August 2004, 33 a
certified true copy of which was attached as Annex "A."34 Obviously, the Court of Appeals committed a
grievous mistake.

Now, on the substantive aspects.

Petitioner assails the DOJ's reliance on Zaldivia v. Reyes,35 a case involving the violation of a municipal
ordinance, in declaring that the prescriptive period is tolled only upon filing of the information in court.
According to petitioner, what is applicable in this case is Ingco v. Sandiganbayan,36 wherein this Court
ruled that the filing of the complaint with the fiscal's office for preliminary investigation suspends the
running of the prescriptive period. Petitioner also notes that the Ingco case similarly involved the violation
of a special law, Republic Act (R.A.) No. 3019, otherwise known as the Anti-Graft and Corrupt Practices
Act, petitioner notes.37 He argues that sustaining the DOJ's and the Court of Appeals' pronouncements
would result in grave injustice to him since the delays in the present case were clearly beyond his
control.38

There is no question that Act No. 3326, appropriately entitled An Act to Establish Prescription for
Violations of Special Acts and Municipal Ordinances and to Provide When Prescription Shall Begin, is the
law applicable to offenses under special laws which do not provide their own prescriptive periods. The
pertinent provisions read:

Section 1. Violations penalized by special acts shall, unless otherwise provided in such acts,
prescribe in accordance with the following rules: (a) x x x; (b) after four years for those punished
by imprisonment for more than one month, but less than two years; (c) x x x

Sec. 2. Prescription shall begin to run from the day of the commission of the violation of the law,
and if the same be not known at the time, from the discovery thereof and the institution of judicial
proceedings for its investigation and punishment.

The prescription shall be interrupted when proceedings are instituted against the guilty person,
and shall begin to run again if the proceedings are dismissed for reasons not constituting
jeopardy.

We agree that Act. No. 3326 applies to offenses under B.P. Blg. 22. An offense under B.P. Blg.
22 merits the penalty of imprisonment of not less than thirty (30) days but not more than one year
or by a fine, hence, under Act No. 3326, a violation of B.P. Blg. 22 prescribes in four (4) years
from the commission of the offense or, if the same be not known at the time, from the discovery
thereof. Nevertheless, we cannot uphold the position that only the filing of a case in court can toll
the running of the prescriptive period.

It must be pointed out that when Act No. 3326 was passed on 4 December 1926, preliminary investigation
of criminal offenses was conducted by justices of the peace, thus, the phraseology in the law, "institution
of judicial proceedings for its investigation and punishment," 39 and the prevailing rule at the time was that
once a complaint is filed with the justice of the peace for preliminary investigation, the prescription of the
offense is halted.40

The historical perspective on the application of Act No. 3326 is illuminating. 41 Act No. 3226 was approved
on 4 December 1926 at a time when the function of conducting the preliminary investigation of criminal
offenses was vested in the justices of the peace. Thus, the prevailing rule at the time, as shown in the
cases of U.S. v. Lazada42 and People v. Joson,43 is that the prescription of the offense is tolled once a
complaint is filed with the justice of the peace for preliminary investigation inasmuch as the filing of the
complaint signifies the

institution of the criminal proceedings against the accused. 44 These cases were followed by our
declaration in People v. Parao and Parao45 that the first step taken in the investigation or examination of
offenses partakes the nature of a judicial proceeding which suspends the prescription of the
offense.46 Subsequently, in People v. Olarte,47 we held that the filing of the complaint in the Municipal
Court, even if it be merely for purposes of preliminary examination or investigation, should, and does,
interrupt the period of prescription of the criminal responsibility, even if the court where the complaint or
information is filed cannot try the case on the merits. In addition, even if the court where the complaint or
information is filed may only proceed to investigate the case, its actuations already represent the initial
step of the proceedings against the offender,48 and hence, the prescriptive period should be interrupted.
In Ingco v. Sandiganbayan49 and Sanrio Company Limited v. Lim,50 which involved violations of the Anti-
Graft and Corrupt Practices Act (R.A. No. 3019) and the Intellectual Property Code (R.A. No. 8293),
which are both special laws, the Court ruled that the

prescriptive period is interrupted by the institution of proceedings for preliminary investigation against the
accused. In the more recent case of Securities and Exchange Commission v. Interport Resources
Corporation, et al.,51 the Court ruled that the nature and purpose of the investigation conducted by the
Securities and Exchange Commission on violations of the Revised Securities Act, 52 another special law, is
equivalent to the preliminary investigation conducted by the DOJ in criminal cases, and thus effectively
interrupts the prescriptive period.

The following disquisition in the Interport Resources case53 is instructive, thus:

While it may be observed that the term "judicial proceedings" in Sec. 2 of Act No. 3326 appears
before "investigation and punishment" in the old law, with the subsequent change in set-up
whereby the investigation of the charge for purposes of prosecution has become the exclusive
function of the executive branch, the term "proceedings" should now be understood either
executive or judicial in character: executive when it involves the investigation phase and judicial
when it refers to the trial and judgment stage. With this clarification, any kind of investigative
proceeding instituted against the guilty person which may ultimately lead to his prosecution
should be sufficient to toll prescription.54

Indeed, to rule otherwise would deprive the injured party the right to obtain vindication on account of
delays that are not under his control.55 A clear example would be this case, wherein petitioner filed his
complaint-affidavit on 24 August 1995, well within the four (4)-year prescriptive period. He likewise timely
filed his appeals and his motions for reconsideration on the dismissal of the charges against

Tongson. He went through the proper channels, within the prescribed periods. However, from the time
petitioner filed his complaint-affidavit with the Office of the City Prosecutor (24 August 1995) up to the
time the DOJ issued the assailed resolution, an aggregate period of nine (9) years had elapsed. Clearly,
the delay was beyond petitioner's control. After all, he had already initiated the active prosecution of the
case as early as 24 August 1995, only to suffer setbacks because of the DOJ's flip-flopping resolutions
and its misapplication of Act No. 3326. Aggrieved parties, especially those who do not sleep on their
rights and actively pursue their causes, should not be allowed to suffer unnecessarily further simply
because of circumstances beyond their control, like the accused's delaying tactics or the delay and
inefficiency of the investigating agencies.

We rule and so hold that the offense has not yet prescribed. Petitioner 's filing of his complaint-affidavit
before the Office of the City Prosecutor on 24 August 1995 signified the commencement of the
proceedings for the prosecution of the accused and thus effectively interrupted the prescriptive period for
the offenses they had been charged under B.P. Blg. 22. Moreover, since there is a definite finding of
probable cause, with the debunking of the claim of prescription there is no longer any impediment to the
filing of the information against petitioner.

WHEREFORE, the petition is GRANTED. The resolutions of the Court of Appeals dated 29 October 2004
and 21 March 2005 are REVERSED and SET ASIDE. The resolution of the Department of Justice dated
9 August 2004 is also ANNULLED and SET ASIDE. The Department of Justice is ORDERED to REFILE
the information against the petitioner.

No costs.

SO ORDERED.
G.R. No. 166510               April 29, 2009

PEOPLE OF THE PHILIPPINES, Petitioner,

vs.
BENJAMIN "KOKOY" ROMUALDEZ, and SANDIGANBAYAN, Respondent.

RESOLUTION

TINGA, J.:

The relevant antecedent facts are stated in the Decision of the Court dated 23 July 2008 1 . We
reproduce them, to wit:

The Office of the Ombudsman (Ombudsman) charged Romualdez before the Sandiganbayan with
violation of Section 3 (e) of Republic Act No. 3019 (R.A. 3019), as amended, otherwise known as the
Anti-Graft and Corrupt Practices Act. The Information reads:

That on or about and during the period from 1976 to February 1986 or sometime prior or subsequent
thereto, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, accused
Benjamin "Kokoy" Romualdez, a public officer being then the Provincial Governor of the Province of
Leyte, while in the performance of his official function, committing the offense in relation to his Office,
did then and there willfully, unlawfully and criminally with evident bad faith, cause undue injury to the
Government in the following manner: accused public officer being then the elected Provincial
Governor of Leyte and without abandoning said position, and using his influence with his brother-in-
law, then President Ferdinand E. Marcos, had himself appointed and/or assigned as Ambassador to
foreign countries, particularly the People's Republic of China (Peking), Kingdom of Saudi Arabia
(Jeddah), and United States of America (Washington D.C.), knowing fully well that such appointment
and/or assignment is in violation of the existing laws as the Office of the Ambassador or Chief of
Mission is incompatible with his position as Governor of the Province of Leyte, thereby enabling
himself to collect dual compensation from both the Department of Foreign Affairs and the Provincial
Government of Leyte in the amount of Two Hundred Seventy-six Thousand Nine Hundred Eleven
Dollars and 56/100 (US $276,911.56), US Currency or its equivalent amount of Five Million Eight
Hundred Six Thousand Seven Hundred Nine Pesos and 50/100 (P5,806,709.50) and Two Hundred
Ninety-three Thousand Three Hundred Forty-eight Pesos and 86/100 (P293,348.86) both Philippine
Currencies, respectively, to the damage and prejudice of the Government in the aforementioned
amount of P5,806,709.50.

CONTRARY TO LAW.

Romualdez moved to quash the information on two grounds, namely: (1) that the facts alleged in the
information do not constitute the offense with which the accused was charged; and (2) that the
criminal action or liability has been extinguished by prescription. He argued that the acts imputed
against him do not constitute an offense because: (a) the cited provision of the law applies only to
public officers charged with the grant of licenses, permits, or other concessions, and the act charged
— receiving dual compensation — is absolutely irrelevant and unrelated to the act of granting
licenses, permits, or other concessions; and (b) there can be no damage and prejudice to the
Government considering that he actually rendered services for the dual positions of Provincial
Governor of Leyte and Ambassador to foreign countries.
To support his prescription argument, Romualdez posited that the 15-year prescription under
Section 11 of R.A. 3019 had lapsed since the preliminary investigation of the case for an offense
committed on or about and during the period from 1976 to February 1986 commenced only in May
2001 after a Division of the Sandiganbayan referred the matter to the Office of the Ombudsman. He
argued that there was no interruption of the prescriptive period for the offense because the
proceedings undertaken under the 1987 complaint filed with the Presidential Commission on Good
Government (PCGG) were null and void pursuant to the Supreme Court's ruling in Cojuangco, Jr. v.
PCGG and Cruz, Jr. [sic]. He likewise argued that the Revised Penal Code provision that
prescription does not run when the offender is absent from the Philippines should not apply to his
case, as he was charged with an offense not covered by the Revised Penal Code; the law on the
prescription of offenses punished under special laws (Republic Act No. 3326) does not contain any
rule similar to that found in the Revised Penal Code.

The People opposed the motion to quash on the argument that Romualdez is misleading the court in
asserting that Section 3 (e) of R.A. 3019 does not apply to him when Section 2 (b) of the law states
that corrupt practices may be committed by public officers who include "elective and appointive
officials and employees, permanent or temporary, whether in the classified or unclassified or exempt
service receiving compensation, even nominal, from the government." On the issue of prescription,
the People argued that Section 15, Article XI of the Constitution provides that the right of the State to
recover properties unlawfully acquired by public officials or employees, from them or from their
nominees or transferees, shall not be barred by prescription, laches or estoppel, and that
prescription is a matter of technicality to which no one has a vested right. Romualdez filed a Reply to
this Opposition.

The Sandiganbayan granted Romualdez' motion to quash in the first Resolution assailed in this
petition. The Sandiganbayan stated:

We find that the allegation of damage and prejudice to the Government in the amount of
P5,806,709.50 representing the accused's compensation is without basis, absent a showing that the
accused did not actually render services for his two concurrent positions as Provincial Governor of
the Province of Leyte and as Ambassador to the People's Republic of China, Kingdom of Saudi
Arabia, and United States of America. The accused alleges in the subject Motion that he actually
rendered services to the government. To receive compensation for actual services rendered would
not come within the ambit of improper or illegal use of funds or properties of the government; nor
would it constitute unjust enrichment tantamount to the damage and prejudice of the government.

Jurisprudence has established what "evident bad faith" and "gross negligence" entail, thus:

In order to be held guilty of violating Section 3 (e), R.A. No. 3019, the act of the accused that caused
undue injury must have been done with evident bad faith or with gross inexcusable negligence. But
bad faith per se is not enough for one to be held liable under the law, the "bad faith" must be
"evident".

xxx xxx xxx

. . . . "Gross negligence" is characterized by the want of even slight care, acting or omitting to act in
a willful or omitting to act in a willful or intentional manner displaying a conscious indifference to
consequences as far as other persons may be affected. (Emphasis supplied)

The accused may have been inefficient as a public officer by virtue of his holding of two concurrent
positions, but such inefficiency is not enough to hold him criminally liable under the Information
charged against him, given the elements of the crime and the standards set by the Supreme Court
quoted above. At most, any liability arising from the holding of both positions by the accused may be
administrative in nature.

xxx xxx xxx

However, as discussed above, the Information does not sufficiently aver how the act of receiving
dual compensation resulted to undue injury to the government so as to make the accused liable for
violation of Section 3 (e) of R.A. No. 3019.

The Sandiganbayan found no merit in Romualdez' prescription argument.

The People moved to reconsider this Resolution, citing "reversible errors" that the Sandiganbayan
committed in its ruling. Romualdez opposed the People's motion, but also moved for a partial
reconsideration of the Resolution's ruling on prescription. The People opposed Romualdez' motion
for partial reconsideration.

Thereafter, the Sandiganbayan denied via the second assailed Resolution the People's motion for
reconsideration under the following terms —

The Court held in its Resolution of June 22, 2004, and so maintains and sustains, that assuming the
averments of the foregoing information are hypothetically admitted by the accused, it would not
constitute the offense of violation of Section 3 (e) of R.A. 3019 as the elements of (a) causing undue
injury to any party, including the government, by giving unwarranted benefits, advantage or
preference to such parties, and (b) that the public officer acted with manifest partiality, evident bad
faith or gross inexcusable negligence, are wanting.

As it is, a perusal of the information shows that pertinently, accused is being charged for: (a) having
himself appointed as ambassador to various posts while serving as governor of the Province of
Leyte and (b) for collecting dual compensation for said positions. As to the first, the Court finds that
accused cannot be held criminally liable, whether or not he had himself appointed to the position of
the ambassador while concurrently holding the position of provincial governor, because the act of
appointment is something that can only be imputed to the appointing authority.

Even assuming that the appointee influenced the appointing authority, the appointee only makes a
passive participation by entering into the appointment, unless it is alleged that he acted in conspiracy
with his appointing authority, which, however, is not so claimed by the prosecution in the instant
case. Thus, even if the accused's appointment was contrary to law or the constitution, it is the
appointing authority that should be responsible therefor because it is the latter who is the doer of the
alleged wrongful act. In fact, under the rules on payment of compensation, the appointing authority
responsible for such unlawful employment shall be personally liable for the pay that would have
accrued had the appointment been lawful. As it is, the appointing authority herein, then President
Ferdinand E. Marcos has been laid to rest, so it would be incongruous and illogical to hold his
appointee, herein accused, liable for the appointment.

Further, the allegation in the information that the accused collected compensation in the amounts of
Five Million Eight Hundred Six Thousand Seven Hundred Nine Pesos and 50/100 (P5,806,709.50)
and Two Hundred Ninety-three Thousand Three Hundred Forty Eight Pesos and 86/100
(P293,348.86) cannot sustain the theory of the prosecution that the accused caused damage and
prejudice to the government, in the absence of any contention that receipt of such was tantamount to
giving unwarranted benefits, advantage or preference to any party and to acting with manifest
partiality, evident bad faith or gross inexcusable negligence. Besides receiving compensation is an
incident of actual services rendered, hence it cannot be construed as injury or damage to the
government.

It likewise found no merit in Romualdez' motion for partial reconsideration. 2

Petitioner filed a Petition for Certiorari under Rule 65, imputing grave abuse of discretion on the part
of the Sandiganbayan in quashing the subject information. Private respondent responded with a
Motion to Dismiss with Comment Ad Cautelam, wherein he argued that the proper remedy to an
order granting a motion to quash a criminal information is by way of appeal under Rule 45 since
such order is a final order and not merely interlocutory. Private respondent likewise raised before
this Court his argument that the criminal action or liability had already been extinguished by
prescription, which argument was debunked by the Sandiganbayan.

The Court granted the petition in its 23 July 2008 Decision. While the Court acknowledged that the
mode for review of a final ruling of the Sandiganbayan was by way of a Rule 45 petition, it
nonetheless allowed the Rule 65 petition of petitioners, acceding that such remedy was available on
the claim that grave abuse of discretion amounting to lack or excess of jurisdiction had been properly
and substantially alleged. The Decision then proceeded to determine that the quashal of the
information was indeed attended with grave abuse of discretion, the information having sufficiently
alleged the elements of Section 3(e) of Rep. Act No. 3019, the offense with which private respondent
was charged. The Decision concluded that the Sandiganbayan had committed grave abuse of
discretion by premising its quashal of the information "on considerations that either not appropriate in
evaluating a motion to quash; are evidentiary details not required to be stated in an Information; are
matters of defense that have no place in an Information; or are statements amounting to rulings on
the merits that a court cannot issue before trial."

Private respondent filed a Motion for Reconsideration, placing renewed focus on his argument that
the criminal charge against him had been extinguished on account of prescription. In a Minute
Resolution dated 9 September 2008, the Court denied the Motion for Reconsideration. On the
argument of prescription, the Resolution stated:

We did not rule on the issue of prescription because the Sandiganbayan's ruling on this point was
not the subject of the People's petition for certiorari. While the private respondent asserted in his
Motion to Dismiss Ad Cautelam filed with us that prescription had set in, he did not file his own
petition to assail this aspect of the Sandiganbayan ruling, he is deemed to have accepted it; he
cannot now assert that in the People's petitionthat sought the nullification of the Sandiganbayan
ruling on some other ground, we should pass upon the issue of prescription he raised in his motion.

Hence this second motion for reconsideration, which reiterates the argument that the charges
against private respondent have already prescribed. The Court required the parties to submit their
respective memoranda on whether or not prescription lies in favor of respondent.

The matter of prescription is front and foremost before us. It has been raised that following our ruling
in Romualdez v. Marcelo,3 the criminal charges against private respondent have been extinguished
by prescription. The Court agrees and accordingly grants the instant motion.

Private respondent was charged with violations of Rep. Act No. 3019, or the Anti-Graft and Corrupt
Practices Act, committed "on or about and during the period from 1976 to February 1986". However,
the subject criminal cases were filed with the Sandiganbayan only on 5 November 2001, following a
preliminary investigation that commenced only on 4 June 2001. The time span that elapsed from the
alleged commission of the offense up to the filing of the subject cases is clearly beyond the fifteen
(15) year prescriptive period provided under Section 11 of Rep. Act No. 3019. 4
Admittedly, the Presidential Commission on Good Government (PCGG) had attempted to file similar
criminal cases against private respondent on 22 February 1989. However, said cases were quashed
based on prevailing jurisprudence that informations filed by the PCGG and not the Office of the
Special Prosecutor/Office of the Ombudsman are null and void for lack of authority on the part of the
PCGG to file the same. This made it necessary for the Office of the Ombudsman as the competent
office to conduct the required preliminary investigation to enable the filing of the present charges.

The initial filing of the complaint in 1989 or the preliminary investigation by the PCGG that preceded
it could not have interrupted the fifteen (15)-year prescription period under Rep. Act No. 3019. As
held in Cruz, Jr. v. Sandiganbayan, 5 the investigatory power of the PCGG extended only to alleged
ill-gotten wealth cases, absent previous authority from the President for the PCGG to investigate
such graft and corruption cases involving the Marcos cronies. Accordingly, the preliminary
investigation conducted by the PCGG leading to the filing of the first information is void ab initio, and
thus could not be considered as having tolled the fifteen (15)-year prescriptive period,
notwithstanding the general rule that the commencement of preliminary investigation tolls the
prescriptive period. After all, a void ab initio proceeding such as the first preliminary investigation by
the PCGG could not be accorded any legal effect by this Court.

The rule is that for criminal violations of Rep. Act No. 3019, the prescriptive period is tolled only
when the Office of the Ombudsman receives a complaint or otherwise initiates its investigation. 6 As
such preliminary investigation was commenced more than fifteen (15) years after the imputed acts
were committed, the offense had already prescribed as of such time.

Further, the flaw was so fatal that the information could not have been cured or resurrected by mere
amendment, as a new preliminary investigation had to be undertaken, and evidence had again to be
adduced before a new information could be filed. The rule may well be that the amendment of a
criminal complaint retroacts to the time of the filing of the original complaint. Yet such rule will not
apply when the original information is void ab initio, thus incurable by amendment.

The situation herein differs from that in the recent case of SEC v. Interport, 7 where the Court had
occasion to reexamine the principles governing the prescription of offenses punishable under special
laws. Therein, the Court found that the investigative proceedings conducted by the Securities and
Exchange Commission had tolled the prescriptive period for violations of the Revised Securities Act,
even if no subsequent criminal cases were instituted within the prescriptive period. The basic
difference lies in the fact that no taint of invalidity had attached to the authority of the SEC to conduct
such investigation, whereas the preliminary investigation conducted herein by the PCGG is simply
void ab initio for want of authority.

Indeed the Court in 2006 had the opportunity to favorably rule on the same issue of prescription on
similar premises raised by the same respondent. In Romualdez v. Marcelo 8 , as in this case, the
original preliminary investigation was conducted by the PCGG, which then acted as complainant in
the complaint filed with the Sandiganbayan. Given that it had been settled that such investigation
and information filed by the PCGG was null and void, the Court proceeded to rule that "[i]n
contemplation of the law, no proceedings exist that could have merited the suspension of the
prescriptive periods." As explained by Justice Ynares-Santiago:

Besides, the only proceeding that could interrupt the running of prescription is that which is filed or
initiated by the offended party before the appropriate body or office. Thus, in the case of People v.
Maravilla, this Court ruled that the filing of the complaint with the municipal mayor for purposes of
preliminary investigation had the effect of suspending the period of prescription. Similarly, in the
case of Llenes v. Dicdican, this Court held that the filing of a complaint against a public officer with
the Ombudsman tolled the running of the period of prescription.
In the case at bar, however, the complaint was filed with the wrong body, the PCGG. Thus, the same
could not have interrupted the running of the prescriptive periods. 9

Clearly, following stare decisis, private respondent’s claim of prescription has merit, similar in
premises as it is to the situation in Marcelo. Unfortunately, such argument had not received serious
consideration from this Court. The Sandiganbayan had apparently rejected the claim of prescription,
but instead quashed the information on a different ground relating to the elements of the offense. It
was on that point which the Court, in its 23 July 2008 Decision, understandably focused. However,
given the reality that the arguments raised after the promulgation of the Decision have highlighted
the matter of prescription as well as the precedent set in Marcelo, the earlier quashal of the
information is, ultimately, the correct result still.

It would be specious to fault private respondent for failing to challenge the Sandiganbayan’s
pronouncement that prescription had not arisen in his favor. The Sandiganbayan quashed the
information against respondent, the very same relief he had sought as he invoked the prescription
argument. Why would the private respondent challenge such ruling favorable to him on motion for
reconsideration or in a separate petition before a higher court? Imagine, for example, that the People
did not anymore challenge the Sandiganbayan rulings anymore. The dissent implies that respondent
in that instance should nonetheless appeal the Sandiganbayan’s rulings because it ruled differently
on the issue of prescription. No lawyer would conceivably give such advise to his client. Had
respondent indeed challenged the Sandiganbayan’s ruling on that point, what enforceable relief
could he have obtained other than that already granted by the Anti-Graft Court?

Our 2004 ruling in Romualdez v. Sandiganbayan 10 cannot be cited against the position of private
respondent’s. The Sandiganbayan in that case denied the Motion to Quash filed based on
prescription, and so it was incumbent on petitioner therein to file an appropriate remedial action to
reverse that ruling and cause the quashal of the information. Herein, even as the Sandiganbayan
disagreed with the prescription argument, it nonetheless granted the Motion to Quash, and it would
be ridiculous for the petitioner to object to such action.

Notably, private respondent had already raised the issue of prescription in the very first responsive
pleading he filed before the Court – the Motion to Dismiss with Comment Ad Cautelam 11 dated 14
April 2005. The claim that private respondent should be deemed as having accepted the
Sandiganbayan’s ruling on prescription would have been on firmer ground had private respondent
remained silent on that point at the first opportunity he had before the Court.

The fact that prescription lies in favor of private respondent posed an additional burden on the
petitioner, which had opted to file a Rule 65 petition for certiorari instead of the normal recourse to a
Rule 45. Prescription would have been considered in favor of private respondent whether this matter
was raised before us in a Rule 45 or a Rule 65 petition. Yet the bar for petitioner is markedly higher
under Rule 65 than under Rule 45, and its option to resort to Rule 65 instead in the end appears
needlessly burdensome for its part, a burden not helped by the fact that prescription avails in favor of
private respondent.

WHEREFORE, the Second Motion for Reconsideration is GRANTED. The Decision dated 23 July
2008 and the Resolution dated 9 September 2008 in the instant case are REVERSED and SET
ASIDE. The Petition is HEREBY DISMISSED. No pronouncements as to costs.

DANTE O. TINGA
Associate Justice
 THIRD DIVISION
 

STATE PROSECUTOR RINGCAR A.M. No. RTJ-05-1944

B. PINOTE,
[Formerly OCA I.P.I. No.
Petitioner , 05-2189-RTJ]
 
   
 
Present:
-versus-
 
 
  PANGANIBAN, Chairma
  n,
JUDGE ROBERTO L. AYCO, SANDOVAL-
GUTIERREZ,
Respondent 
. CORONA,

CARPIO MORALES, and

GARCIA, JJ.

Promulgated:

December 13, 2005

  

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- - - - - - - -
--x

DECISION

CARPIO MORALES, J.:

On August 13 and 20, 2004, Judge Roberto L. Ayco of Branch 26, Regional Trial
Court (RTC) of South Cotabato allowed the defense in Criminal Case No. 1771 TB,
'People v. Vice Mayor Salvador Ramos, et al., for violation of Section 3 of
Presidential Decree (P.D.) No. 1866, to present evidence consisting of the
testimony of two witnesses, even in the absence of State Prosecutor Ringcar B.
Pinote who was prosecuting the case.

State Prosecutor Pinote was on August 13 and 20, 2004 undergoing medical
treatment at the Philippine Heart Center in Quezon City, hence, his absence during
the proceedings on the said dates.

On the subsequent scheduled hearings of the criminal case on August 27, October
1, 15 and 29, 2004, State Prosecutor Pinote refused to cross-examine the two
defense witnesses, despite being ordered by Judge Ayco, he maintaining that the
proceedings conducted on August 13 and 20, 2004 in his absence were void.

State Prosecutor Pinote subsequently filed a Manifestation on November 12, 2004

before the trial court, he restating why he was not present on August 13 and 20,
2004, and reiterating his position that Judge Ayco's act of allowing the defense to
present evidence in his absence was erroneous and highly irregular. He thus prayed
that he should not be 'coerced to cross-examine those two defense witnesses and
that their testimonies be stricken off the record.

By Order issued also on November 12, 2004, Judge Ayco, glossing over the
Manifestation, considered the prosecution to have waived its right to cross-examine
the two defense witnesses.

Hence, arose the present administrative complaint lodged by State Prosecutor

Pinote (complainant) against Judge Ayco (respondent), for 'Gross Ignorance of the
Law, Grave Abuse of Authority and Serious Misconduct.

By Comment dated March 18, 2005, respondent proffers that complainant filed the
complaint 'to save his face and cover up for his incompetence and lackadaisical
handling of the prosecution of the criminal case as in fact complainant was, on the
request of the Provincial Governor of South Cotabato, relieved as prosecutor in the
case by the Secretary of Justice.

And respondent informs that even after complainant was already relieved as the
prosecutor in the case, he filed a motion for his inhibition without setting it for
hearing.

On the above-said Manifestation filed by complainant before the trial court on

November 12, 2004, respondent brands the same as 'misleading and 'highly
questionable, complainant's having undergone medical treatment at the Philippine
Heart Center on August 13 and 20, 2004 having been relayed to the trial court only
on said date.

 
On his Order considering the prosecution to have waived presenting evidence,
respondent justifies the same on complainant's failure to formally offer the evidence
for the prosecution despite several extensions of time granted for the purpose.

Finally, respondent proffers that no substantial prejudice was suffered by the

prosecution for complainant was permitted to cross examine the two defense
witnesses but he refused to do so.

By way of counter-complaint, respondent charges complainant with 'Contempt of

Court and 'Grave Misconduct and/or 'Conduct Unbecoming of a Member of the Bar
and as an Officer of the Court.

On evaluation of the case, the Office of the Court Administrator (OCA), citing
Section 5, Rule 110 of the Revised Rule on Criminal Procedure, finds respondent to
have breached said rule and accordingly recommends that he be reprimanded
therefor, with warning that a repetition of the same or similar act shall be dealt with
more severely.

Rule 110, Section 5 of the Revised Rules of Criminal Procedure reads:

Sec. 5. Who must prosecute criminal actions. - All

criminal actions commenced by a complaint or
information shall be prosecuted under the direction and
control of the prosecutor. In case of heavy work schedule
or in the event of lack of public prosecutors, the private
prosecutor may be authorized in writing by the Chief of
the Prosecution Office or the Regional State Prosecution
Office to prosecute the case subject to the approval of
the Court. Once so authorized to prosecute the criminal
 action, the private prosecutor shall continue to prosecute
the case up to the end of the trial even in the absence of
a public prosecutor, unless the authority is revoked or
otherwise withdrawn.
 
x x x (Underscoring supplied)
 
 

Thus, as a general rule, all criminal actions shall be prosecuted under the control
and direction of the public prosecutor.

If the schedule of the public prosecutor does not permit, however, or in case there
are no public prosecutors, a private prosecutor may be authorized in writing by the
Chief of the Prosecution Office or the Regional State Prosecution Office to prosecute
the case, subject to the approval of the court. Once so authorized, the private
prosecutor shall continue to prosecute the case until the termination of the trial
even in the absence of a public prosecutor, unless the authority is revoked or
otherwise withdrawn.

Violation of criminal laws is an affront to the People of the Philippines as a whole

and not merely to the person directly prejudiced, he being merely the complaining
witness. [1] It is on this account that the presence of a public prosecutor in the trial
of criminal cases is necessary to protect vital state interests, foremost of which is
its interest to vindicate the rule of law, the bedrock of peace of the people. [2]

Respondent's act of allowing the presentation of the defense witnesses in the

absence of complainant public prosecutor or a private prosecutor designated for the
purpose is thus a clear transgression of the Rules which could not be rectified by
subsequently giving the prosecution a chance to cross-examine the witnesses.

 
Respondent's intention to uphold the right of the accused to a speedy disposition of
the case, no matter how noble it may be, cannot justify a breach of the Rules. If
the accused is entitled to due process, so is the State.

Respondent's lament about complainant's failure to inform the court of his inability
to attend the August 13 and 20, 2004 hearings or to file a motion for postponement
thereof or to subsequently file a motion for reconsideration of his Orders allowing
the defense to present its two witnesses on said dates may be mitigating. It does
not absolve respondent of his utter disregard of the Rules.

WHEREFORE, respondent Judge Roberto L. Ayco is hereby ordered to pay a fine

FIVE THOUSAND PESOS (P5,000.00) with warning that a repetition of the same or
similar acts in the future shall be dealt with more severely.

Respecting the counter-complaint against complainant State Prosecutor Ringcar B.

Pinote, respondent is advised that the same should be lodged before the Secretary
of Justice.

SO ORDERED.

G.R. No. 190487               April 13, 2011

BUREAU OF CUSTOMS, Petitioner,
vs.
PETER SHERMAN, MICHAEL WHELAN, TEODORO B. LINGAN, ATTY. OFELIA B. CAJIGAL
and the COURT OF TAX APPEALS, Respondents.

DECISION

CARPIO MORALES, J.:
Mark Sensing Philippines, Inc. (MSPI) caused the importation of 255, 870,000 pieces of finished bet
slips and 205, 200 rolls of finished thermal papers from June 2005 to January 2007. MSPI facilitated
the release of the shipment from the Clark Special Economic Zone (CSEZ), where it was brought, to
the Philippine Charity Sweepstakes Office (PCSO) for its lotto operations in Luzon. MSPI did not pay
duties or taxes, however, prompting the Bureau of Customs (petitioner) to file, under its Run After
The Smugglers (RATS) Program, a criminal complaint before the Department of Justice against
herein respondents MSPI Chairman Peter Sherman, Managing Director Michael Whelan, Country
Manager Atty. Ofelia B. Cajigal and Finance Manager and Corporate Secretary Teodoro B. Lingan,
along with Erick B. Ariarte and Ricardo J. Ebuna and Eugenio Pasco, licensed customs broker who
acted as agents of MSPI, for violation of Section 3601 1 vis-à-vis Sections 2530 (f) and (l) 52 and 101
(f)3 of the Tariff and Customs Code of the Philippines, as amended and Republic Act No. 7916. 4

State Prosecutor Rohaira Lao-Tamano, by Resolution of March 25, 2008, 5 found probable cause
against respondents and accordingly recommended the filing of Information against them.

Respondents filed a petition for review6 before the Secretary of Justice during the pendency of which
the Information was filed on April 11, 2009 before the Court of Tax Appeals (CTA), 7 the accusatory
portion of which reads:

That on or about June 2005 to December 2007, in Manila City, and within the jurisdiction of this
Honorable Court, the above named accused, in conspiracy with one another, made forty (40)
unlawful importations of 255, 870 pieces of finished printed bet slips and 205, 200 rolls of finished
thermal papers from Australia valued at approximately One Million Two Hundred Forty Thousand
Eight Hundred Eighty US Dollars & Fourteen Cents (US$1,240,880.14), and caused the removal of
said imported articles from the Clark Special Economic Zone and delivery thereof to the Philippine
Charity Sweepstakes Offices without payment of its corresponding duties and taxes estimated at
around Fifteen Million Nine Hundred Seventeen Thousand Six Hundred Eleven Pesos and Eighty
Three Cents (Php15,917,611.83) in violation of Section 3601 in relation to Sections 2530 and 101
paragraph (f) of the Tariff and Customs Code of the Philippines to the damage and prejudice of
herein complainant.

CONTRARY TO LAW.8

Only respondents Cajigal and Lingan were served warrants of arrest following which they posted
cash bail bonds.

By Resolution of March 20, 2009,9 the Secretary of Justice reversed the State Prosecutor’s
Resolution and accordingly directed the withdrawal of the Information.

Petitioner’s motion for reconsideration having been denied by Resolution of April 29, 2009, 10 it
elevated the case by certiorari before the Court of Appeals, docketed as CA GR SP No. 10-9431. 11

In the meantime, Prosecutor Lao-Tamano filed before the CTA a Motion to Withdraw Information
with Leave of Court12 to which petitioner filed an Opposition.13 Respondents, on their part, moved for
the dismissal of the Information.

The CTA, by the herein assailed Resolution of September 3, 2009, 14 granted the withdrawal of, and
accordingly dismissed the Information.

Petitioner’s motion for reconsideration filed on September 22, 2009 15 was Noted Without Action by
the CTA by Resolution of October 14, 2009, viz:
Considering that an Entry of Judgment was already issued in this case on September 23, 2009,
no Motion for Reconsideration of the Resolution dated September 3, 2009 having been filed by State
Prosecutor Rohairah Lao-Tamano of the Department of Justice; the "Motion for Reconsideration of
the Resolution dated 3 September 2009" filed on September 22, 2009 by Atty. Christopher F.C.
Bolastig of the Bureau of Customs is NOTED, without action.

SO ORDERED.16 (emphasis partly in the original and partly supplied)

Hence, petitioner’s present petition for certiorari. 17

The petition is bereft of merit.

It is well-settled that prosecution of crimes pertains to the executive department of the government
whose principal power and responsibility is to insure that laws are faithfully executed. Corollary to
this power is the right to prosecute violators.18 1avvphi1

All criminal actions commenced by complaint or information are prosecuted under the direction and
control of public prosecutors.19 In the prosecution of special laws, the exigencies of public service
sometimes require the designation of special prosecutors from different government agencies to
assist the public prosecutor. The designation does not, however, detract from the public prosecutor
having control and supervision over the case.

As stated in the above-quoted ratio of the October 14, 2009 Resolution of the CTA, it noted without
action petitioner’s motion for reconsideration, entry of judgment having been made as no Motion for
Execution was filed by the State Prosecutor.

By merely noting without action petitioner’s motion for reconsideration, the CTA did not gravely
abuse its discretion. For, as stated earlier, a public prosecutor has control and supervision over the
cases. The participation in the case of a private complainant, like petitioner, is limited to that of a
witness, both in the criminal and civil aspect of the case.

Parenthetically, petitioner is not represented by the Office of the Solicitor General (OSG) in
instituting the present petition, which contravenes established doctrine 20 that "the OSG shall
represent the Government of the Philippines, its agencies and instrumentalities and its officials and
agents in any litigation, proceeding, investigation, or matter requiring the services of lawyers." 21

IN FINE, as petitioner’s motion for reconsideration of the challenged CTA Resolution did not bear the
imprimatur of the public prosecutor to which the control of the prosecution of the case belongs, the
present petition fails.

WHEREFORE, the petition is DISMISSED.

SO ORDERED.

G.R. No. 188197               August 3, 2010

LEONARDO U. FLORES, Petitioner,
vs.
HON. RAUL S. GONZALEZ, in his capacity as Secretary of Justice, and EUGENE
LIM, Respondents.

DECISION

NACHURA, J.:

This is a petition1 for review on certiorari under Rule 45 of the Rules of Court assailing the
Decision2 dated March 6, 2008 and the Resolution 3 dated May 28, 2009 of the Court of Appeals (CA)
in CA G.R. CEB SP No. 02726.

The antecedent facts and proceedings follow:

On June 24, 2004, petitioner Leonardo U. Flores (Flores) filed a complaint-affidavit 4 against private
respondent Eugene Lim (Lim) for estafa before the City Prosecutor of Cebu City, docketed as I.S.
No. 04-5228-F.

Briefly, the complaint alleged that, during the pre-incorporation stage of Enviroboard Manufacturing,
Inc. (EMI) in October 1996, Lim tricked Flores and the other EMI’s incorporators (Flores, et al.) to
purchase two compact processing equipments, CP15 and CP14, from Compak System Limited, Inc.
(Compak) in Great Britain for the manufacture of "Fiber Boards." Unknown to Flores, Lim was
connected with Bendez International Corporation (Bendez), the exclusive distributor of Compak.
Flores executed an agreement to purchase only a CP15. After the execution of the sales contract
and due to some delay in the delivery of the CP15, Lim, through insidious words and deliberate bad
faith, was able to convince Flores, et al. to purchase instead an unused but later model of the
compact processing equipment, CP14, for £1,466,000.00 or ₱60,106,000.00, with the assurance
that Lim could effect the cancellation of the purchase for the CP15. Flores, et al. agreed and
purchased the CP14, using their funds allotted for the CP15. Later, however, Lim told them that the
purchase of the CP15 could not be cancelled. Out of fear of lawsuits and acting upon the advice of
Lim, Flores, et al. raised the necessary funds through bank loans to pay for the CP15. Then in 2001,
Flores, et al. discovered the distributorship agreement between Bendez and Compak. Upon further
investigation, they learned that the purchase price of the CP14 was only £908,140.00 or
₱38,174,618.16 (at the conversion of ₱41.80) per the Letter of Credit (LC) No. 263-C-6-00073 5,
Proforma Invoice No. CP627A dated June 18, 1996 6 and the Ocean Bill of Lading7 relative to these
documents.

Lim filed his counter-affidavit8 denying all the accusations against him. Among others, he insisted
that the CP14 was actually priced at ₱60,106,000.00, and LC No. 263-C-6-00073 represented only
part of the payment for the purchase price. To support his refutations, he submitted a Contract
Payment Receipt9 dated August 20, 1996 showing that the full price of a CP14, in reference to
Proforma Invoice No. CP627B dated March 4, 1996, was actually £1,466,000.00 or ₱60,106,000.00.
He also submitted documents showing that a CP10, an older model of the CP14 was already priced
at £1,031,585.00.10

After further exchange of pleadings and the case was submitted for resolution, the City Prosecutor of
Cebu City issued a Resolution11 dated January 16, 2005 dismissing the complaint for lack of
probable cause. The motion for reconsideration12 filed by Flores was denied in a Resolution13 dated
June 2, 2005.
On July 12, 2005, Flores filed a petition for review14 with the Secretary of Justice questioning the
January 16, 2005 and the June 2, 2005 Resolutions. Lim opposed this petition. 15

In a Resolution16 dated March 2, 2006, the Secretary of Justice dismissed the petition on the ground
that there was no showing of any reversible error on the part of the handling prosecutors, and for
Flores’ failure to append several documents to his petition.

Flores moved for a reconsideration of this Resolution. 17 Lim opposed,18 to which Flores replied.19

In his Resolution20 dated May 31, 2006, the Secretary of Justice reconsidered, disposing thus—

WHEREFORE, premises considered, the assailed resolution is hereby REVERSED and SET
ASIDE. The City Prosecutor of Cebu City is hereby directed to file an information for other deceits
defined and penalized under Article 318 of the Revised Penal Code before the Municipal Trial Court
in Cities, Cebu City, and to report the action taken thereon within ten (10) days from receipt hereof.

SO ORDERED.21

Pursuant to the said directive, the Cebu City Prosecutor filed with the Municipal Trial Court in Cities
(MTCC), Cebu City an Information22 against Lim for the crime of Other Deceits under Article 318 of
the Revised Penal Code. The case was docketed as Criminal Case No. 135467-R and was raffled to
Branch 4.

Lim thus filed a motion for reconsideration23 of the May 31, 2006 Resolution. Flores opposed. 24 Lim
replied.25 Flores filed a rejoinder.26

On March 22, 2007, the Secretary of Justice reconsidered anew and issued another
Resolution,27 disposing as follows—

WHEREFORE, finding respondent’s motion for reconsideration to be meritorious, the Resolution

dated May 31, 2006 is REVERSED. The instant petition for review is hereby DISMISSED WITH
FINALITY.

Consequently, the Office of the City Prosecutor is hereby directed to withdraw the information, if any
had been filed in Court, and report the action taken thereon within ten (10) days from receipt hereof.

SO ORDERED.28

Accordingly, on May 3, 2007, the Cebu City Prosecutor filed with the MTCC a Motion to Withdraw
Information.29

Seeking to nullify the March 22, 2007 Resolution, Flores filed a petition for certiorari 30 with the Court
of Appeals on May 22, 2007.

Meanwhile, on June 20, 2007, the MTCC issued its Resolution 31 denying the Motion to Withdraw
Information. Ratiocinating on the denial of the motion, it declared—

The Court notes the flip-flopping of the Public Prosecutors, notably the Secretary of Justice in the
instant case. On January 16, 2005, the Investigating Prosecutor dismissed the case for lack of
probable cause. After his Motion for Reconsideration was denied, the private complainant appealed
to the Secretary of Justice who, however, dismissed the same on a technicality. Private complainant
filed a Motion for Reconsideration which the Secretary of Justice granted on Mary 31, 2006. In that
Resolution, the City Prosecutor of Cebu was directed to file within ten (10) days from receipt, an
Information charging Accused with the crime of "Other Deceits" under Article 318 of the Revised
Penal Code. Now the same Secretary of Justice has reversed himself again and, through his
subordinates, is asking the Court to withdraw the Information.

The Court has conformably to the doctrine laid down in Crespo and other cases made its own
independent assessment of the evidence thus far submitted and is convinced that there exists
probable cause to hold accused to trial where the parties can better ventilate their respective claims
and defense[s].32 (Emphasis supplied.)

On June 29, 2007, Flores filed a Manifestation 33 with the Court of Appeals, attaching the June 20,
2007 Resolution of the MTCC.

Meanwhile, Lim, on July 20, 2007, moved to reconsider the June 20, 2007 MTCC Resolution. 34

On August 20, 2007, the Office of the Solicitor General (OSG) filed with the Court of Appeals its
Manifestation and Motion in lieu of Comment. 35 The OSG’s position was that the Secretary of Justice
acted with grave abuse of discretion in dismissing the complaint and directing the withdrawal of the
Information. Lim filed his Comment 36 on September 28, 2007. Flores filed his Reply 37 to Lim’s
Comment on November 8, 2007.

In the meantime, on November 26, 2007, the MTCC issued an Order38 holding in abeyance the
proceedings pending before it, including the resolution of Lim’s motion for reconsideration of the
denial of the Motion to Withdraw Information. It held—

In a manner of speaking, the subject incident is straddling on two horses. The ardent desire of the
private complainant to prosecute the accused is evident when he filed the petition before the Hon.
Court of Appeals to question the Resolution of the Hon. Secretary of Justice. There is nothing wrong
to be zealous in prosecuting an accused except that his chosen approach coupled with the fact that
this court chose to disregard the subject Resolution and insists on its jurisdiction over the case result
in a procedural disorder or confusion. This is taking into account the unquestionable primacy of the
Hon. Court of Appeals over this court by virtue of which any action or resolution by this court on the
issue can be negated or voided by the former. By reason of such primacy, this court ought to defer
to the Hon. Court of Appeals and observe judicial courtesy to a superior court.

The outcome of the pending case before the Hon. Court of Appeals questioning the resolution and
order of the Hon. Secretary of Justice will eventually determine the merit of the resolution of this
court in denying the motion to withdraw filed by the prosecution acting on the order of the Hon.
Secretary of Justice.

Hypothetically, if the Hon. Court of Appeals will sustain the Hon. Secretary of Justice, how can this
court take a posture different from that of a superior court and insist[s] on hearing this case.
Conversely, if the Hon. Court of Appeals will sustain the private complainant, it will, in effect, sustain
the resolution of this court denying the motion to withdraw Information, and render the motion for
reconsideration of the public prosecution moot and academic. In such a case, the prosecution of the
accused will have to proceed.

If the court will proceed with this case but the Hon. Secretary of Justice will be eventually upheld by
the Hon. Court of Appeals, all the proceeding[s] already had in this court would become useless and
wasted, including the time and efforts of all parties concerned.
Furthermore, to continue with the proceedings in this case while a case that matters is pending in
the Hon. Court of Appeals will constitute discourtesy and disrespect to a superior court. That there is
no injunction or restraint on this court to proceed with this case is not an issue since in the first place
it was the private complainant and not the public prosecutor or the accused who initiated the petition
for certiorari in the Hon. Court of Appeals. In fact, judicial courtesy and respect dictate that the
private complainant ought to initiate the suspension of the proceedings of the case in this court while
the petition is pending, or if he wants the proceedings herein to continue, then he should have
initiated the withdrawal or termination of the case he filed in the Hon. Court of Appeals. 39

On March 8, 2008, the Court of Appeals promulgated the questioned Decision finding no grave
abuse of discretion on the part of the Secretary of Justice in issuing his March 22, 2007 Resolution.

Flores filed a motion for reconsideration of the March 8, 2008 Decision. The Court of Appeals denied
it in its Resolution dated May 28, 2009. Hence, this petition anchored on the following issues:

I. WHETHER OR NOT THE JUNE 20, 2007 RESOLUTION OF THE MUNICIPAL TRIAL
COURT, DENYING RESPONDENT LIM’S MOTION TO WITHDRAW INFORMATION AND
FINDING PROBABLE CAUSE, RENDERED THE DISPOSITION OF THE PETITION
BEFORE [THE] COURT OF APPEALS ACADEMIC?

II. WHETHER OR NOT THE HON. SECRETARY OF JUSTICE COULD RULE IN A

PRELIMINARY INVESTIGATION ON THE VALIDITY, WEIGHT, ADMISSIBILITY, AND
MERITS OF PARTIES’ DEFENSES, EVIDENCE, AND ACCUSATION?

In gist, Flores asserts in his petition that the June 20, 2007 Resolution of the MTCC denying the
Motion to Withdraw filed by the prosecution and finding probable cause to hold Lim for trial for the
crime of Other Deceits under Article 318 of the Revised Penal Code rendered his petition for
certiorari before the Court of Appeals moot and academic. He says that this is pursuant to the ruling
in the landmark case of Crespo v. Mogul 40 that once a complaint or information is filed in court, any
disposition of the case resulting either in the conviction or acquittal of the accused rests in the sound
discretion of the court, who is the best and sole judge on what action to take in the case before it.

Flores further argues that the Secretary of Justice overstepped his jurisdiction in the determination of
probable cause when he ruled during the preliminary investigation on the validity, weight,
admissibility and merits of the parties’ evidence. According to him, these matters are better
ventilated before the court during the trial proper.

Our Ruling

With respect to the first issue, we rule in the affirmative. Indeed, as Crespo declared—

[O]nce a complaint or information is filed in Court, any disposition of the case as its dismissal or the
conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal
retains the direction and control of the prosecution of criminal cases even while the case is already
in Court, he cannot impose his opinion on the trial court. The Court is the best and sole judge on
what to do with the case before it. The determination of the case is within its exclusive jurisdiction
and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court
who has the option to grant or deny the same. It does not matter if this is done before or after the
arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of
the Secretary of Justice who reviewed the records of the investigation.
In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who
reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice
should, as far as practicable, refrain from entertaining a petition for review or appeal from the action
of the fiscal, when the complaint or information has already been filed in Court. The matter should be
left entirely for the determination of the Court.41

In this case, on a petition for review, the Secretary of Justice found probable cause for Other Deceits
against Lim; thus, the proper Information was filed in Court pursuant to the directive of the Secretary
of Justice. Upon filing of the Information, the MTCC acquired jurisdiction over the case.

Lim filed a motion for reconsideration of the May 31, 2006 Resolution of the Secretary of Justice.
There was nothing procedurally infirm in this course of action inasmuch as there is nothing in Crespo
that bars the Secretary of Justice from reviewing resolutions of his subordinates in an appeal or
petition for review in criminal cases. The Secretary of Justice was merely advised in Crespo that, as
far as practicable, he should not take cognizance of an appeal when the complaint or information is
already filed in court.42

This is also true with respect to a motion for reconsideration before the Secretary of Justice. Review,
whether on appeal or on motion for reconsideration, as an act of supervision and control by the
Secretary of Justice over the prosecutors, finds basis in the doctrine of exhaustion of administrative
remedies which holds that mistakes, abuses or negligence committed in the initial steps of an
administrative activity or by an administrative agency may be corrected by higher administrative
authorities, and not directly by courts. As a rule, only after administrative remedies are exhausted
may judicial recourse be allowed.43 In any case, the grant of a motion to dismiss or a motion to
withdraw the information, which the prosecution may file after the Secretary of Justice reverses the
finding of probable cause, is subject to the discretion of the court.44

In this case, the Secretary of Justice, reversed himself in his March 22, 2007 Resolution, and
directed the withdrawal of the Information against Lim. In compliance with this directive, the
prosecutor filed a Motion to Withdraw Information on May 3, 2007. Flores, on the other hand, filed on
May 22, 2007 a petition for certiorari before the Court of Appeals to assail the March 22, 2007
Resolution of the Secretary of Justice. Then, on June 20, 2007, the MTCC denied the Motion to
Withdraw Information on the ground that, based on its own assessment, there exists probable cause
to hold Lim for trial for the crime of Other Deceits. In view of the June 20, 2007 MTCC Resolution,
Flores manifested before the Court of Appeals this disposition, attaching a copy of the said
Resolution to his pleading. Meanwhile, Lim filed a motion for reconsideration with the MTCC.
Cognizant of the pending petition for certiorari in the Court of Appeals and Lim’s motion for
reconsideration of the June 20, 2007 Resolution, the MTCC suspended the proceedings before it,
and deferred the arraignment of Lim until the resolution of Flores’ certiorari petition of the Court of
Appeals.

We wish to point out that, notwithstanding the pendency of the Information before the MTCC,
especially considering the reversal by the Secretary of Justice of his May 31, 2006 Resolution, a
petition for certiorari under Rule 65 of the Rules of Court, anchored on the alleged grave abuse of
discretion amounting to excess or lack of jurisdiction on the part of Secretary of Justice, was an
available remedy to Flores as an aggrieved party.45 1avvphi1

In the petition for certiorari, the Court of Appeals is not being asked to cause the dismissal of the
case in the trial court, but only to resolve the issue of whether the Secretary of Justice acted with
grave abuse of discretion in either affirming or reversing the finding of probable cause against the
accused. But still the rule stands—the decision whether to dismiss the case or not rests on the
sound discretion of the trial court where the Information was filed. 46 As jurisdiction was already
acquired by the MTCC, this jurisdiction is not lost despite a resolution by the Secretary of Justice to
withdraw the information or to dismiss the case, notwithstanding the deferment or suspension of the
arraignment of the accused and further proceedings, and not even if the Secretary of Justice is
affirmed by the higher courts.47

Verily, it bears stressing that the trial court is not bound to adopt the resolution of the Secretary of
Justice, in spite of being affirmed by the appellate courts, since it is mandated to independently
evaluate or assess the merits of the case and it may either agree or disagree with the
recommendation of the Secretary of Justice. Reliance on the resolution of the Secretary of Justice
alone would be an abdication of the trial court’s duty and jurisdiction to determine a prima facie
case.48 Thus, the trial court may make an independent assessment of the merits of the case based
on the affidavits and counter-affidavits, documents, or evidence appended to the Information; the
records of the public prosecutor which the court may order the latter to produce before it; or any
evidence already adduced before the court by the accused at the time the motion is filed by the
public prosecutor.49 The trial court should make its assessment separately and independently of the
evaluation of the prosecution or of the Secretary of Justice. This assessment should be embodied in
the written order disposing of the motion to dismiss or the motion to withdraw the information. 50

This was precisely what the MTCC did when it denied the Motion to Withdraw Information in its June
20, 2007 Resolution, and it correctly did so. In view of the above disquisitions, and while the
disposition of the issue of whether or not the Secretary of Justice acted with grave abuse of
discretion in not finding probable cause against Lim may be persuasive, the MTCC is not bound to
dismiss the case or to withdraw the Information. For these reasons, the petition for certiorari before
the Court of Appeals has effectively become moot and academic upon the issuance by the MTCC of
its June 20, 2007 Resolution. The March 6, 2008 Decision and the May 28, 2009 Resolution of the
Court of Appeals affirming the Secretary of Justice will really make no difference anymore.

As held in Auto Prominence Corporation v. Winterkorn, 51 pursuant to our ruling in Crespo and in the
subsequent related cases, this Court held—

In ascertaining whether the Secretary of Justice committed grave abuse of discretion amounting to
lack or excess or jurisdiction in his determination of the existence of probable cause, the party
seeking the writ of certiorari must be able to establish that the Secretary of Justice exercised his
executive power in an arbitrary and despotic manner, by reason of passion or personal hostility, and
the abuse of discretion must be so patent and gross as would amount to an evasion or to a unilateral
refusal to perform the duty enjoined or to act in contemplation of law. Grave abuse of discretion is
not enough, it must amount to lack or excess of jurisdiction. Excess of jurisdiction signifies that he
had jurisdiction over the case, but (he) transcended the same or acted without authority.

There is no escaping the fact that resolving the issue of whether the Secretary of Justice committed
grave abuse of discretion amounting to lack or excess of jurisdiction would necessarily entail a
review of his finding of lack of probable cause against the respondents AUDI AG officers.

If we should sustain the DOJ Secretary in maintaining that no probable cause exists to hold
respondents AUDI AG officers liable to stand trial for the crime they were charged with, our ruling
would actually serve no practical or useful purpose, since the RTC had already made such a judicial
determination, on the basis of which it dismissed Criminal Case No. 4824-A. Lest it be forgotten, the
fact that the Information against respondents AUDI AG officers had already been filed in court, its
disposition, i.e., its dismissal or the conviction of the accused, rests on the sound discretion of the
Court. And although the fiscal retains direction and control of the prosecution of criminal cases even
while the case is already in court, he cannot impose his opinion on the trial court. The Court is the
best and sole judge of what to do with the case before it. The determination of the case is within its
exclusive jurisdiction and competence. Thus, the court may deny or grant the motion to withdraw an
Information, not out of subservience to the (Special) Prosecutor, but in faithful exercise of judicial
discretion and prerogative. For these very same reasons, we must now refrain from resolving the
issues raised by petitioners PPC and APC, considering that the information against respondents
AUDI AG officers had already been filed before the RTC; the RTC acquired exclusive jurisdiction
over Criminal Case No. 4824-A; and it has already rendered judgment dismissing the charges
against respondents AUDI AG officers.

This is not to say that we are already affirming the 2 July 2008 Order of the RTC dismissing Criminal
Case No. 4824-A. To the contrary, we are much aware that petitioners PPC and APC’s Motion for
Reconsideration of the said order of dismissal is still pending resolution by the trial court. By refusing
to go into the merits of the instant Petition, we are only respecting the exclusive jurisdiction of the
RTC over Criminal Case No. 4824-A and avoiding any pronouncement on our part which would
preempt its independent assessment of the case. Irrefragably, a determination by us that probable
cause against respondents AUDI AG officers does or does not exist would strongly influence, if not
directly affect, the resolution by the RTC of the matter still pending before it. In any case, the party
that would feel aggrieved by the final judgment or order of the lower court in Criminal Case No.
4824-A has the option of elevating the same to the higher courts. And if only for the orderly
administration of justice, the proceeding in Criminal Case No. 4824-A, that is, the resolution of the
pending motion for reconsideration filed by petitioners PPC and APC, should be allowed to continue
and take its course.

Under the circumstances, the denial of the present Petition is clearly warranted for being moot.
Where a declaration on an issue would have no practical use or value, this Court will refrain from
expressing its opinion in a case where no practical relief may be granted in view of a supervening
event. Thus, it is unnecessary to indulge in academic discussion of a case presenting a moot
question, as a judgment thereon cannot have any practical legal effect or, in the nature of things,
cannot be enforced.52

Anent the second issue, suffice it to state that these matters are best addressed to the MTCC, where
they will be thoroughly ventilated and threshed out in the resolution of Lim’s motion for
reconsideration of the MTCC June 20, 2007 Resolution, and eventually, if the trial court denies the
motion, during the trial on the merits before it.

WHEREFORE, the petition is GRANTED. The petition for certiorari before the Court of Appeals in
CA-G.R. SP No. 02726 is declared MOOT AND ACADEMIC. Consequently, the assailed Decision
dated March 6, 2008 and the Resolution dated May 28, 2009 of the Court of Appeals in the said
case are SET ASIDE. No costs.

SO ORDERED.