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Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 166836

September 4, 2013

SAN MIGUEL PROPERTIES, INC., PETITIONER,


vs.
SEC. HERNANDO B. PEREZ, ALBERT C. AGUIRRE, TEODORO B.
ARCENAS, JR., MAXY S. ABAD, JAMES G. BARBERS, STEPHEN N.
SARINO, ENRIQUE N. ZALAMEA, JR., MARIANO M. MARTIN, ORLANDO
O. SAMSON, CATHERINE R. AGUIRRE, AND ANTONIO V.
AGCAOILI, RESPONDENTS.
DECISION
BERSAMIN, J.:
The pendency of an administrative case for specific performance brought by
the buyer of residential subdivision lots in the Housing and Land Use
Regulatory Board (HLURB) to compel the seller to deliver the transfer
certificates of title (TCTs) of the fully paid lots is properly considered a ground
to suspend a criminal prosecution for violation of Section 25 of Presidential
Decree No. 9571 on the ground of a prejudicial question. The administrative
determination is a logical antecedent of the resolution of the criminal charges
based on non-delivery of the TCTs.
Antecedents
Petitioner San Miguel Properties Inc. (San Miguel Properties), a domestic
corporation engaged in the real estate business, purchased in 1992, 1993
and April 1993 from B.F. Homes, Inc. (BF Homes), then represented by Atty.
Florencio B. Orendain (Orendain) as its duly authorized rehabilitation
receiver appointed by the Securities and Exchange Commission (SEC), 2 130
residential lots situated in its subdivision BF Homes Paraaque, containing a
total area of 44,345 square meters for the aggregate price
of P106,248,000.00. The transactions were embodied in three separate
deeds of sale.3 The TCTs covering the lots bought under the first and second
deeds were fully delivered to San Miguel Properties, but 20 TCTs covering 20
of the 41 parcels of land with a total area of 15,565 square meters purchased
under the third deed of sale, executed in April 1993 and for which San Miguel

Properties paid the full price of P39,122,627.00, were not delivered to San
Miguel Properties.
On its part, BF Homes claimed that it withheld the delivery of the 20 TCTs for
parcels of land purchased under the third deed of sale because Atty.
Orendain had ceased to be its rehabilitation receiver at the time of the
transactions after being meanwhile replaced as receiver by FBO Network
Management, Inc. on May 17, 1989 pursuant to an order from the SEC. 4
BF Homes refused to deliver the 20 TCTs despite demands. Thus, on August
15, 2000, San Miguel Properties filed a complaint-affidavit in the Office of the
City Prosecutor of Las Pias City (OCP Las Pias) charging respondent
directors and officers of BF Homes with non-delivery of titles in violation of
Section 25, in relation to Section 39, both of Presidential Decree No. 957
(I.S. No. 00-2256).5
At the same time, San Miguel Properties sued BF Homes for specific
performance in the HLURB (HLURB Case No. REM-082400-11183), 6 praying
to compel BF Homes to release the 20 TCTs in its favor.
In their joint counter-affidavit submitted in I.S. No. 00-2256, 7 respondent
directors and officers of BF Homes refuted San Miguel Properties assertions
by contending that: (a) San Miguel Properties claim was not legally
demandable because Atty. Orendain did not have the authority to sell the 130
lots in 1992 and 1993 due to his having been replaced as BF Homes
rehabilitation receiver by the SEC on May 17, 1989; (b) the deeds of sale
conveying the lots were irregular for being undated and unnotarized; (c) the
claim should have been brought to the SEC because BF Homes was under
receivership; (d) in receivership cases, it was essential to suspend all claims
against a distressed corporation in order to enable the receiver to effectively
exercise its powers free from judicial and extra-judicial interference that could
unduly hinder the rescue of the distressed company; and (e) the lots involved
were under custodia legis in view of the pending receivership proceedings,
necessarily stripping the OCP Las Pias of the jurisdiction to proceed in the
action.
On October 10, 2000, San Miguel Properties filed a motion to suspend
proceedings in the OCP Las Pias, 8 citing the pendency of BF Homes
receivership case in the SEC. In its comment/opposition, BF Homes opposed
the motion to suspend. In the meantime, however, the SEC terminated BF
Homes receivership on September 12, 2000, prompting San Miguel
Properties to file on October 27, 2000 a reply to BF Homes
comment/opposition coupled with a motion to withdraw the sought

suspension of proceedings due to the intervening termination of the


receivership.9
On October 23, 2000, the OCP Las Pias rendered its
resolution,10 dismissing San Miguel Properties criminal complaint for violation
of Presidential Decree No. 957 on the ground that no action could be filed by
or against a receiver without leave from the SEC that had appointed him; that
the implementation of the provisions of Presidential Decree No. 957
exclusively pertained under the jurisdiction of the HLURB; that there existed
a prejudicial question necessitating the suspension of the criminal action until
after the issue on the liability of the distressed BF Homes was first
determined by the SEC en banc or by the HLURB; and that no prior resort to
administrative jurisdiction had been made; that there appeared to be no
probable cause to indict respondents for not being the actual signatories in
the three deeds of sale.
On February 20, 2001, the OCP Las Pias denied San Miguel Properties
motion for reconsideration filed on November 28, 2000, holding that BF
Homes directors and officers could not be held liable for the non-delivery of
the TCTs under Presidential Decree No. 957 without a definite ruling on the
legality of Atty. Orendains actions; and that the criminal liability would attach
only after BF Homes did not comply with a directive of the HLURB directing it
to deliver the titles.11
San Miguel Properties appealed the resolutions of the OCP Las Pias to the
Department of Justice (DOJ), but the DOJ Secretary denied the appeal on
October 15, 2001, holding:
After a careful review of the evidence on record, we find no cogent reason to
disturb the ruling of the City Prosecutor of Las Pias City. Established
jurisprudence supports the position taken by the City Prosecutor concerned.
There is no dispute that aside from the instant complaint for violation of PD
957, there is still pending with the Housing and Land Use Resulatory Board
(HLURB, for short) a complaint for specific performance where the HLURB is
called upon to inquire into, and rule on, the validity of the sales transactions
involving the lots in question and entered into by Atty. Orendain for and in
behalf of BF Homes.
As early as in the case of Solid Homes, Inc. vs. Payawal, 177 SCRA 72, the
Supreme Court had ruled that the HLURB has exclusive jurisdiction over
cases involving real estate business and practices under PD 957. This is
reiterated in the subsequent cases of Union Bank of the Philippines versus
HLURB, G.R. [No.] 953364, June 29, 1992 and C.T. Torres Enterprises vs.
Hilionada, 191 SCRA 286.

The said ruling simply means that unless and until the HLURB rules on the
validity of the transactions involving the lands in question with specific
reference to the capacity of Atty. Orendain to bind BF Homes in the said
transactions, there is as yet no basis to charge criminally respondents for
non-delivery of the subject land titles. In other words, complainant cannot
invoke the penal provision of PD 957 until such time that the HLURB shall
have ruled and decided on the validity of the transactions involving the lots in
question.
WHEREFORE, the appeal is hereby DENIED.
SO ORDERED.12 (Emphasis supplied)
The DOJ eventually
reconsideration.13

denied

San

Miguel

Properties

motion

for

Ruling of the CA
Undaunted, San Miguel Properties elevated the DOJs resolutions to the CA
on certiorari and mandamus (C.A.-G.R. SP No. 73008), contending that
respondent DOJ Secretary had acted with grave abuse in denying their
appeal and in refusing to charge the directors and officers of BF Homes with
the violation of Presidential Decree No. 957. San Miguel Properties
submitted the issue of whether or not HLURB Case No. REM-082400-11183
presented a prejudicial question that called for the suspension of the criminal
action for violation of Presidential Decree No. 957.
In its assailed decision promulgated on February 24, 2004 in C.A.-G.R. SP
No. 73008,14 the CA dismissed San Miguel Properties petition, holding and
ruling as follows:
From the foregoing, the conclusion that may be drawn is that the rule on
prejudicial question generally applies to civil and criminal actions only.
However, an exception to this rule is provided in Quiambao vs. Osorio cited
by the respondents. In this case, an issue in an administrative case was
considered a prejudicial question to the resolution of a civil case which,
consequently, warranted the suspension of the latter until after termination of
the administrative proceedings.
Quiambao vs. Osorio is not the only instance when the Supreme Court
relaxed the application of the rule on prejudicial question.

In Tamin vs. CA involving two (2) civil actions, the Highest Court similarly
applied the rule on prejudicial question when it directed petitioner therein to
put up a bond for just compensation should the demolition of private
respondents building proved to be illegal as a result of a pending cadastral
suit in another tribunal.
City of Pasig vs. COMELEC is yet another exception where a civil action
involving a boundary dispute was considered a prejudicial question which
must be resolved prior to an administrative proceeding for the holding of a
plebiscite on the affected areas.
In fact, in Vidad vs. RTC of Negros Oriental, Br. 42, it was ruled that in the
interest of good order, courts can suspend action in one case pending
determination of another case closely interrelated or interlinked with it.
It thus appears that public respondent did not act with grave abuse of
discretion x x x when he applied the rule on prejudicial question to the instant
proceedings considering that the issue on the validity of the sale transactions
x x x by x x x Orendain in behalf of BF Homes, Inc., is closely intertwined
with the purported criminal culpability of private respondents, as
officers/directors of BF Homes, Inc., arising from their failure to deliver the
titles of the parcels of land included in the questioned conveyance.
All told, to sustain the petitioners theory that the result of the HLURB
proceedings is not determinative of the criminal liability of private
respondents under PD 957 would be to espouse an absurdity. If we were to
assume that the HLURB finds BFHI under no obligation to delve the subject
titles, it would be highly irregular and contrary to the ends of justice to pursue
a criminal case against private respondents for the non-delivery of
certificates of title which they are not under any legal obligation to turn over in
the first place. (Bold emphasis supplied)
On a final note, absent grave abuse of discretion on the part of the
prosecutorial arm of the government as represented by herein public
respondent, courts will not interfere with the discretion of a public prosecutor
in prosecuting or dismissing a complaint filed before him. A public prosecutor,
by the nature of his office, is under no compulsion to file a criminal
information where no clear legal justification has been shown, and no
sufficient evidence of guilt nor prima facie case has been established by the
complaining party.
WHEREFORE, premises considered, the instant Petition for Certiorari and
Mandamus is hereby DENIED. The Resolutions dated 15 October 2001 and
12 July 2002 of the Department of Justice are AFFIRMED.

SO ORDERED. 15
The CA denied San Miguel Properties motion for reconsideration on January
18, 2005.16
Issues
Aggrieved, San Miguel Properties is now on appeal, raising the following for
consideration and resolution, to wit:
THE COURT OF APPEALS COMMITTED GRAVE, SERIOUS AND
REVERSIBLE ERRORS WHEN IT DISMISSED PETITIONERS
CERTIORARI AND MANDAMUS PETITION TO ORDER AND DIRECT
RESPONDENT SECRETARY TO INDICT RESPONDENTS FOR
VIOLATION OF SECTION 25, PD. 957 IN THAT:
THE OBLIGATION OF PRIVATE RESPONDENTS TO DELIVER TO
PETITIONER THE TITLES TO 20 FULLY-PAID LOTS IS MANDATED BY
SECTION 25, PD 957. IN FACT, THE OFFICE OF THE PRESIDENT HAD
DULY CONFIRMED THE SAME PER ITS DECISION DATED 27 JANUARY
2005 IN O.P. CASE NO. 03-E-203, ENTITLED "SMPI V. BF HOMES, INC.".
A FORTIORI, PRIVATE RESPONDENTS FAILURE AND/OR REFUSAL TO
DELIVER TO PETITIONER THE SUBJECT TITLES CONSTITUTES
CRIMINAL OFFENSE PER SECTIONS 25 AND 39, PD 957 FOR WHICH IT
IS THE MINISTERIAL DUTY OF RESPONDENT SECRETARY TO INDICT
PRIVATE RESPONDENTS THEREFOR.
IN ANY EVENT, THE HLURB CASE DOES NOT PRESENT A
"PREJUDICIAL QUESTION" TO THE SUBJECT CRIMINAL CASE SINCE
THE FORMER INVOLVES AN ISSUE SEPARATE AND DISTINCT FROM
THE ISSUE INVOLVED IN THE LATTER. CONSEQUENTLY, THE HLURB
CASE HAS NO CORRELATION, TIE NOR LINKAGE TO THE PRESENT
CRIMINAL CASE WHICH CAN PROCEED INDEPENDENTLY THEREOF.
IN FACT, THE CRIMINAL CULPABILITY OF PRIVATE RESPONDENTS
EMANATE FROM THEIR MALA PROHIBITA NON-DELIVERY OF THE
TITLES TO TWENTY (20) FULLY-PAID PARCELS OF LAND TO
PETITIONER, AND NOT FROM THEIR NON-COMPLIANCE WITH THE
HLURBS RULING IN THE ADMINISTRATIVE CASE.
NONETHELESS, BY DECREEING THAT PETITIONERS CRIMINAL
COMPLAINT IS PREMATURE, BOTH THE COURT OF APPEALS AND
RESPONDENT SECRETARY HAD IMPLIEDLY ADMITTED THE

EXISTENCE OF SUFFICIENT PROBABLE CAUSE AGAINST PRIVATE


RESPONDENTS FOR THE CRIME CHARGED.17

Mabubha Textile Mills Corporation vs. Ongpin, it does not have to rely on the
finding of others to discharge this adjudicatory functions. 19

It is relevant at this juncture to mention the outcome of the action for specific
performance and damages that San Miguel Properties instituted in the
HLURB simultaneously with its filing of the complaint for violation of
Presidential Decree No. 957. On January 25, 2002, the HLURB Arbiter ruled
that the HLURB was inclined to suspend the proceedings until the SEC
resolved the issue of Atty. Orendains authority to enter into the transactions
in BF Homes behalf, because the final resolution by the SEC was a logical
antecedent to the determination of the issue involved in the complaint before
the HLURB. Upon appeal, the HLURB Board of Commissioners (HLURB
Board), citing the doctrine of primary jurisdiction, affirmed the HLURB
Arbiters decision, holding that although no prejudicial question could arise,
strictly speaking, if one case was civil and the other administrative, it
nonetheless opted to suspend its action on the cases pending the final
outcome of the administrative proceeding in the interest of good order.18

After its motion for reconsideration was denied, BF Homes appealed to the
CA (C.A.-G.R. SP No. 83631), raising as issues: (a) whether or not the
HLURB had the jurisdiction to decide with finality the question of Atty.
Orendains authority to enter into the transaction with San Miguel Properties
in BF Homes behalf, and rule on the rights and obligations of the parties to
the contract; and (b) whether or not the HLURB properly suspended the
proceedings until the SEC resolved with finality the matter regarding such
authority of Atty. Orendain.

Not content with the outcome, San Miguel Properties appealed to the Office
of the President (OP), arguing that the HLURB erred in suspending the
proceedings. On January 27, 2004, the OP reversed the HLURB Boards
ruling, holding thusly:
The basic complaint in this case is one for specific performance under
Section 25 of the Presidential Decree (PD) 957 "The Subdivision and
Condominium Buyers Protective."
As early as August 1987, the Supreme Court already recognized the
authority of the HLURB, as successor agency of the National Housing
Authority (NHA), to regulate, pursuant to PD 957, in relation to PD 1344, the
real estate trade, with exclusive original jurisdiction to hear and decide cases
"involving specific performance of contractual and statutory obligation filed by
buyers of subdivision lots against the owner, developer, dealer, broker or
salesman," the HLURB, in the exercise of its adjudicatory powers and
functions, "must interpret and apply contracts, determine the rights of the
parties under these contracts and award[s] damages whenever appropriate."
Given its clear statutory mandate, the HLURBs decision to await for some
forum to decide if ever one is forthcoming the issue on the authority of
Orendain to dispose of subject lots before it peremptorily resolves the basic
complaint is unwarranted, the issues thereon having been joined and the
respective position papers and the evidence of the parties having been
submitted. To us, it behooved the HLURB to adjudicate, with the usual
dispatch, the right and obligation of the parties in line with its own
appreciation of the obtaining facts and applicable law. To borrow from

The CA promulgated its decision in C.A.-G.R. SP No. 83631, 20 decreeing that


the HLURB, not the SEC, had jurisdiction over San Miguel Properties
complaint. It affirmed the OPs decision and ordered the remand of the case
to the HLURB for further proceedings on the ground that the case involved
matters within the HLURBs competence and expertise pursuant to the
doctrine of primary jurisdiction, viz:
[T]he High Court has consistently ruled that the NHA or the HLURB has
jurisdiction over complaints arising from contracts between the subdivision
developer and the lot buyer or those aimed at compelling the subdivision
developer to comply with its contractual and statutory obligations.
Hence, the HLURB should take jurisdiction over respondents complaint
because it pertains to matters within the HLURBs competence and
expertise. The proceedings before the HLURB should not be suspended.
While We sustain the Office of the President, the case must be remanded to
the HLURB. This is in recognition of the doctrine of primary jurisdiction. The
fairest and most equitable course to take under the circumstances is to
remand the case to the HLURB for the proper presentation of evidence. 21
Did the Secretary of Justice commit grave abuse of discretion in upholding
the dismissal of San Miguel Properties criminal complaint for violation of
Presidential Decree No. 957 for lack of probable cause and for reason of a
prejudicial question?
The question boils down to whether the HLURB administrative case brought
to compel the delivery of the TCTs could be a reason to suspend the
proceedings on the criminal complaint for the violation of Section 25 of
Presidential Decree No. 957 on the ground of a prejudicial question.
Ruling of the Court

The petition has no merit.


1.
Action for specific performance, even if pending in the HLURB, an
administrative agency, raises a prejudicial question BF Homes posture that
the administrative case for specific performance in the HLURB posed a
prejudicial question that must first be determined before the criminal case for
violation of Section 25 of Presidential Decree No. 957 could be resolved is
correct.
A prejudicial question is understood in law to be that which arises in a case
the resolution of which is a logical antecedent of the issue involved in the
criminal case, and the cognizance of which pertains to another tribunal. It is
determinative of the criminal case, but the jurisdiction to try and resolve it is
lodged in another court or tribunal. It is based on a fact distinct and separate
from the crime but is so intimately connected with the crime that it determines
the guilt or innocence of the accused.22 The rationale behind the principle of
prejudicial question is to avoid conflicting decisions. 23 The essential elements
of a prejudicial question are provided in Section 7, Rule 111 of the Rules of
Court, to wit: (a) the previously instituted civil action involves an issue similar
or intimately related to the issue raised in the subsequent criminal action, and
(b) the resolution of such issue determines whether or not the criminal action
may proceed.
The concept of a prejudicial question involves a civil action and a criminal
case. Yet, contrary to San Miguel Properties submission that there could be
no prejudicial question to speak of because no civil action where the
prejudicial question arose was pending, the action for specific performance in
the HLURB raises a prejudicial question that sufficed to suspend the
proceedings determining the charge for the criminal violation of Section
2524of Presidential Decree No. 957. This is true simply because the action for
specific performance was an action civil in nature but could not be instituted
elsewhere except in the HLURB, whose jurisdiction over the action was
exclusive and original.25
The determination of whether the proceedings ought to be suspended
because of a prejudicial question rested on whether the facts and issues
raised in the pleadings in the specific performance case were so related with
the issues raised in the criminal complaint for the violation of Presidential
Decree No. 957, such that the resolution of the issues in the former would be
determinative of the question of guilt in the criminal case. An examination of
the nature of the two cases involved is thus necessary.

An action for specific performance is the remedy to demand the exact


performance of a contract in the specific form in which it was made, or
according to the precise terms agreed upon by a party bound to fulfill
it.26 Evidently, before the remedy of specific performance is availed of, there
must first be a breach of the contract. 27 The remedy has its roots in Article
1191 of the Civil Code, which reads:
Article 1191. The power to rescind obligations is implied in reciprocal ones, in
case one of the obligors should not comply with what is incumbent upon him.
The injured party may choose between the fulfillment and the rescission of
the obligation, with the payment of damages in either case. He may also
seek rescission, even after he has chosen fulfillment, if the latter should
become impossible. x x x (Emphasis supplied)
Accordingly, the injured party may choose between specific performance or
rescission with damages. As presently worded, Article 1191 speaks of the
remedy of rescission in reciprocal obligations within the context of Article
1124 of the former Civil Code which used the term resolution. The remedy of
resolution applied only to reciprocal obligations, such that a partys breach of
the contract equated to a tacit resolutory condition that entitled the injured
party to rescission. The present article, as in the former one, contemplates
alternative remedies for the injured party who is granted the option to pursue,
as principal actions, either the rescission or the specific performance of the
obligation, with payment of damages in either case. 28
On the other hand, Presidential Decree No. 957 is a law that regulates the
sale of subdivision lots and condominiums in view of the increasing number
of incidents wherein "real estate subdivision owners, developers, operators,
and/or sellers have reneged on their representations and obligations to
provide and maintain properly" the basic requirements and amenities, as well
as of reports of alarming magnitude of swindling and fraudulent
manipulations perpetrated by unscrupulous subdivision and condominium
sellers and operators,29 such as failure to deliver titles to the buyers or titles
free from liens and encumbrances. Presidential Decree No. 957 authorizes
the suspension and revocation of the registration and license of the real
estate subdivision owners, developers, operators, and/or sellers in certain
instances, as well as provides the procedure to be observed in such
instances; it prescribes administrative fines and other penalties in case of
violation of, or non-compliance with its provisions.
Conformably with the foregoing, the action for specific performance in the
HLURB would determine whether or not San Miguel Properties was legally
entitled to demand the delivery of the remaining 20 TCTs, while the criminal
action would decide whether or not BF Homes directors and officers were

criminally liable for withholding the 20 TCTs. The resolution of the former
must obviously precede that of the latter, for should the HLURB hold San
Miguel Properties to be not entitled to the delivery of the 20 TCTs because
Atty. Orendain did not have the authority to represent BF Homes in the sale
due to his receivership having been terminated by the SEC, the basis for the
criminal liability for the violation of Section 25 of Presidential Decree No. 957
would evaporate, thereby negating the need to proceed with the criminal
case.

an appropriate administrative proceeding before a remedy will be supplied by


the courts although the matter comes within the jurisdiction of the courts. The
application of the doctrine does not call for the dismissal of the case in the
court but only for its suspension until after the matters within the competence
of the administrative body are threshed out and determined. 32

Worthy to note at this juncture is that a prejudicial question need not


conclusively resolve the guilt or innocence of the accused. It is enough for
the prejudicial question to simply test the sufficiency of the allegations in the
information in order to sustain the further prosecution of the criminal case. A
party who raises a prejudicial question is deemed to have hypothetically
admitted that all the essential elements of the crime have been adequately
alleged in the information, considering that the Prosecution has not yet
presented a single piece of evidence on the indictment or may not have
rested its case. A challenge to the allegations in the information on the
ground of prejudicial question is in effect a question on the merits of the
criminal charge through a non-criminal suit.30

To accord with the doctrine of primary jurisdiction, the courts cannot and will
not determine a controversy involving a question within the competence of an
administrative tribunal, the controversy having been so placed within the
special competence of the administrative tribunal under a regulatory scheme.
In that instance, the judicial process is suspended pending referral to the
administrative body for its view on the matter in dispute. Consequently, if the
courts cannot resolve a question that is within the legal competence of an
administrative body prior to the resolution of that question by the latter,
especially where the question demands the exercise of sound administrative
discretion requiring the special knowledge, experience, and services of the
administrative agency to ascertain technical and intricate matters of fact, and
a uniformity of ruling is essential to comply with the purposes of the
regulatory statute administered, suspension or dismissal of the action is
proper.33

2.

3.

Doctrine of primary jurisdiction is applicable

Other submissions of petitioner are unwarranted

That the action for specific performance was an administrative case pending
in the HLURB, instead of in a court of law, was of no consequence at all. As
earlier mentioned, the action for specific performance, although civil in
nature, could be brought only in the HLURB. This situation conforms to the
doctrine of primary jurisdiction. There has been of late a proliferation of
administrative agencies, mostly regulatory in function. It is in favor of these
agencies that the doctrine of primary jurisdiction is frequently invoked, not to
defeat the resort to the judicial adjudication of controversies but to rely on the
expertise, specialized skills, and knowledge of such agencies in their
resolution. The Court has observed that one thrust of the proliferation is that
the interpretation of contracts and the determination of private rights under
contracts are no longer a uniquely judicial function exercisable only by the
regular courts.31

It is not tenable for San Miguel Properties to argue that the character of a
violation of Section 25 of Presidential Decree No. 957 as malum prohibitum,
by which criminal liability attached to BF Homes directors and officers by the
mere failure to deliver the TCTs, already rendered the suspension
unsustainable.34 The mere fact that an act or omission was malum prohibitum
did not do away with the initiative inherent in every court to avoid an absurd
result by means of rendering a reasonable interpretation and application of
the procedural law. Indeed, the procedural law must always be given a
reasonable construction to preclude absurdity in its application. 35 Hence, a
literal application of the principle governing prejudicial questions is to be
eschewed if such application would produce unjust and absurd results or
unreasonable consequences.

The doctrine of primary jurisdiction has been increasingly called into play on
matters demanding the special competence of administrative agencies even
if such matters are at the same time within the jurisdiction of the courts. A
case that requires for its determination the expertise, specialized skills, and
knowledge of some administrative board or commission because it involves
technical matters or intricate questions of fact, relief must first be obtained in

San Miguel Properties further submits that respondents could not validly
raise the prejudicial question as a reason to suspend the criminal
proceedings because respondents had not themselves initiated either the
action for specific performance or the criminal action.1wphi1 It contends
that the defense of a prejudicial question arising from the filing of a related
case could only be raised by the party who filed or initiated said related case.

The submission is unfounded. The rule on prejudicial question makes no


distinction as to who is allowed to raise the defense. Ubi lex non distinguit
nec nos distinguere debemos. When the law makes no distinction, we ought
not to distinguish.36
WHEREFORE, the Court AFFIRMS the decision promulgated on February
24, 2004 by the Court of Appeals in CA-G.R. SP NO. 73008; and ORDERS
petitioner to pay the costs of suit.
SO ORDERED.
LUCAS P. BERSAMIN
Associate Justice

Bangkok, Thailand, per Special Order No. 1529 dated August 29,
2013.
1

Entitled Regulating the Sale of Subdivision Lots and


Condominiums, Providing Penalties for Violation Thereof (July 12,
1976).
2

Rollo p. 442.

Id. at 137-172.

Id. at 61.

Id. at 123.

Id. at 420-428.

Id. at 178-181.

Id. at 215-217.

Id. at 253.

WE CONCUR:
MARIA LOURDES P. A. SERENO
Chief Justice
MARTIN S. VILLARAMA, JR.
Associate Justice

BIENVENIDO L. REYES
Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

10

Id. at 247-250.

C E R TI F I CATI O N

11

Id. at 272-273.

12

Id. at 95-96.

13

Id. at 98-99.

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Courts Division.
MARIA
Chief Justice

LOURDES

P.

A.

SERENO

14

Id. at 13-21; penned by Associate Justice Rebecca De GuiaSalvador, with the concurrence of Associate Justice Romeo A.
Brawner (later Presiding Justice/retired/deceased) and Associate
Justice Jose C. Reyes, Jr.
15

Id. at 19-20.

16

Id. at 23-25.

17

Id. at 37-38.

18

Id. at 608.

Footnotes
*

Vice Associate Justice Teresita J. Leonardo-De Castro, who is on


official trip for the Court to attend the Southeast Asia Regional
Judicial Colloquium on Gender Equality Jurisprudence and the Role
of the Judiciary in Promoting Womens Access to Justice, in

19

Id. at 609-610.

20

Id. at 504-523.

condominium unit against the owner, developer, dealer,


broker or salesman. (Emphasis supplied)
26

21

Blacks Law Dictionary.

Id. at 522.
27

22

People v. Consing, Jr., G.R. No. 148193, January 16, 2003, 395
SCRA 366, 369.

Ayala Life Assurance, Inc. v. Ray Burton Development


Corporation, G.R. No. 163075, January 23, 2006, 479 SCRA 462,
469.

23

Beltran v. People, G.R. No. 137567, June 20, 2000, 334 SCRA
106, 110.

28

24

29

Section 25. Issuance of Title. The owner or developer shall


deliver the title of the lot or unit to the buyer upon full payment of the
lot or unit. No fee, except those required for the registration of the
deed of sale in the Registry of Deeds, shall be collected for the
issuance of such title. In the event a mortgage over the lot or unit is
outstanding at the time of the issuance of the title to the buyer, the
owner or developer shall redeem the mortgage or the corresponding
portion thereof within six months from such issuance in order that the
title over any fully paid lot or unit may be secured and delivered to
the buyer in accordance herewith.
25

Under Presidential Decree No. 1344 (entitled Empowering the


National Housing Authority to Issue Writ of Execution in the
Enforcement of its Decision under Presidential Decree No. 957), the
National Housing Authority, the predecessor of the HLURB, was
vested with original jurisdiction, as follows:
Section 1. In the exercise of its functions to regulate the real
estate trade and business and in addition to its powers
provided for in Presidential Decree No. 957, the National
Housing Authority shall have exclusive jurisdiction to hear
and decide cases of the following nature:

Congregation of the Religious of the Virgin Mary v. Orola, G.R. No.


169790, April 30, 2008, 553 SCRA 578, 585.
Co Chien v. Sta. Lucia Realty & Development Inc., G.R. No.
162090, January 31, 2007, 513 SCRA 570, 577-578.
30

Marbella-Bobis v. Bobis. G.R. No. 138509, July 31, 2000, 336


SCRA 747, 752.
31

Antipolo Realty Corporation v. National Housing Authority, No. L50444, August 31, 1987, 153 SCRA 399, 407.
32

Industrial Enterprises, Inc. v. Court of Appeals, G.R. No. 88550,


April 18, 1990, 184 SCRA 426, 431-432.
33

Provident Tree Farms, Inc. v. Batario, Jr., G.R. No. 92285, March
28, 1994, 231 SCRA 463, 469-470; Saavedra, Jr. v. Department of
Justice, G.R. No. 93173, September 15, 1993, 226 SCRA 438, 442443; Presidential Commission on Good Government v. Pea, No. L77663, April 12, 1988, 159 SCRA 556, 567-568; Pambujan Sur
United Mine Workers v. Samar Mining Co., Inc., 94 Phil 932, 941
(1954).
34

Rollo, p. 49

35

(a) Unsound real estate business practices;


(b) Claims involving refund and any other claims filed by
subdivision lot or condominium unit buyer against the project
owner, developer, dealer, broker or salesman; and
(c) Cases involving specific performance of contractual and
statutory obligations filed by buyers of subdivision lot or

Millares v. National Labor Relations Commission, G.R. No.


110524, July 29, 2002, 385 SCRA 306, 316.
36

Yu v. Tatad, G.R. No. 170979, February 9, 2011, 642 SCRA 421,


428.

Republic of the Philippines


SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 178511

December 4, 2008

MA. BELEN FLORDELIZA C. ANG-ABAYA, FRANCIS JASON A. ANG,


HANNAH ZORAYDA A. ANG, and VICENTE G. GENATO, petitioners,
vs.
EDUARDO G. ANG, respondent.
DECISION
YNARES-SANTIAGO, J.:
This Petition for Review on Certiorari1 under Rule 45 of the Rules of Court
assails the March 6, 2007 Decision2 of the Court of Appeals in CA-G.R. SP
No. 94708, which nullified and set aside the July 26, 2005 and March 29,
2006 Resolutions3 of the Secretary of Justice in I.S. No. MAL-2004-1167
directing the withdrawal of the information filed against petitioners for
violation of Section 74 of the Corporation Code. Also assailed is the June 19,
2007 Resolution4 denying the Motion for Reconsideration.
Vibelle Manufacturing Corporation (VMC) and Genato Investments, Inc.
(Genato) (collectively referred to as "the corporations") are family-owned
corporations, where petitioners Ma. Belen Flordeliza C. Ang-Abaya
(Flordeliza), Francis Jason A. Ang (Jason), Vincent G. Genato (Vincent),
Hanna Zorayda A. Ang (Hanna) and private respondent Eduardo G. Ang
(Eduardo) are shareholders, officers and members of the board of directors.
Prior to the instant controversy, VMC, Genato, and Oriana Manufacturing
Corporation (Oriana) filed Civil Case No. 4257-MC, which is a case for
damages with prayer for issuance of a temporary restraining order (TRO)
and/or writ of preliminary injunction against herein respondent Eduardo,

together with Michael Edward Chi Ang (Michael), and some other persons for
allegedly conniving to fraudulently wrest control/management of the
corporations.5Eduardo allegedly borrowed substantial amounts of money
from the said corporations without any intention to repay; that he repeatedly
demanded for increases in his monthly allowance and for more cash
advances contrary to existing corporate policies; that he harassed petitioner
Flordeliza to transfer and/or sell certain corporate and personal properties in
order to pay off his personal obligations; that he attempted to forcibly evict
petitioner Jason from his office and claim it as his own; that he interfered with
and disrupted the daily business operations of the corporations; that Michael
was placed on preventive suspension due to prolonged absence without
leave and commission of acts of disloyalty such as carrying out orders of
Eduardo which were detrimental to their business, using privileged
information and confidential documents/data obtained in his capacity as Vice
President of the corporations, and admitting to have sabotaged their
distribution system and operations.
During the pendency of Civil Case No. 4257-MC, particularly in July, 2004,
Eduardo sought permission to inspect the corporate books of VMC and
Genato on account of petitioners alleged failure and/or refusal to update him
on
the
financial
and
business
activities
of
these
family
corporations.6 Petitioners denied the request claiming that Eduardo would
use the information obtained from said inspection for purposes inimical to the
corporations interests, considering that: "a) he is harassing and/or bullying
the Corporation[s] into writing off P165,071,586.55 worth of personal
advances which he had unlawfully obtained in the past; b) he is unjustly
demanding that he be given the office currently occupied by Mr. Francis
Jason Ang, the Vice-President for Finance and Corporate Secretary; c) he is
usurping the rights belonging exclusively to the Corporation; and d) he is
coercing and/or trying to inveigle the Directors and/or Officers of the
Corporation to give in to his baseless demands involving specific corporate
assets."7
Because of petitioners refusal to grant his request to inspect the corporate
books of VMC and Genato, Eduardo filed an Affidavit-Complaint 8 against
petitioners Flordeliza and Jason, charging them with violation (two counts) of
Section 74, in relation to Section 144, of the Corporation Code of the
Philippines.9 Ma. Belinda G. Sandejas (Belinda), Vincent, and Hanna were
subsequently impleaded for likewise denying respondents request to inspect
the corporate books.
Petitioners filed a Joint Counter-Affidavit praying for the dismissal of the
complaint for lack of factual and legal basis, or for the suspension of the
same while Civil Case No. 4257-MC is still pending resolution. 10 They denied
violating Section 74 of the Corporation Code and reiterated the allegations
contained in their complaint in Civil Case No. 4257-MC. Petitioners blamed

Eduardos lavish lifestyle, which is funded by personal loans and cash


advances from the family corporations. They alleged that Eduardo
consistently pressured petitioner Flordeliza, his daughter, to improperly
transfer ownership of the corporations V.A.G. Building to him; 11 to disregard
the company policy prohibiting advances by shareholders; to unduly increase
his corporate monthly allowance; and to sell her Wack-Wack Golf proprietary
share and use the proceeds thereof to pay his personal financial obligations.
When the proposed transfer of the V.A.G. Building did not materialize,
petitioners claim that Eduardo instituted an action to compel the donation of
said property to him.12 Furthermore, they claim that Eduardo attempted to
forcibly evict petitioner Jason from his office at VMC so he can occupy the
same; that Eduardo and his cohorts constantly created trouble by intervening
in the daily operations of the corporations without the knowledge or consent
of the board of directors.
Meanwhile, in Civil Case No. 4257-MC, the trial court rendered a Decision
granting the permanent injunction applied for by the corporations. 13 However,
the Court of Appeals subsequently rendered a Decision 14 declaring that
Eduardo, his son Michael, and the other persons impleaded in Civil Case No.
4257-MC, were imprudently declared in default by the trial court. The
appellate court thus annulled the permanent injunction issued by the trial
court and remanded the case for further proceedings. VMC, Genato, and
Oriana corporations filed a Petition for Review on Certiorari before this Court,
but the same was denied for failure to sufficiently show any reversible error in
the Decision of the Court of Appeals.15 The three corporations filed a Motion
for Reconsideration, but the same was denied with finality on June 25, 2008.
Meanwhile, on February 3, 2005, the City Prosecutors Office of Malabon
City issued a Resolution16recommending that petitioners be charged with two
counts of violation of Section 74 of the Corporation Code, but dismissed the
complaint against Belinda for lack of evidence. 17 Petitioners filed a Petition
for Review18 before the Department of Justice (DOJ), which reversed the
recommendation of the City Prosecutor of Malabon City.19 The dispositive
portion of the DOJ Resolution dated July 26, 2005, reads:
Wherefore, premises considered, the assailed resolution is
REVERSED and SET ASIDE. The City Prosecutor of Malabon City is
hereby directed to cause the withdrawal of the corresponding
information filed against respondents [herein petitioners] for violation
of Section 74 of the Corporation Code of the Philippines and to
report the action taken thereon within ten (10) days from the receipt
hereof.
SO ORDERED.20

The DOJ denied Eduardos Motion for Reconsideration 21 in a


Resolution22 dated March 29, 2006. On appeal, the Court of Appeals
rendered the assailed Decision, the dispositive portion of which states:
WHEREFORE, the instant petition is partially GRANTED. The
assailed Resolutions of public respondent dated July 26, 2005 and
March 29, 2006 are hereby NULLIFIED and SET ASIDE. However,
due to the present existence of a prejudicial question, the criminal
case docketed I.S. No. MAL-2004-1167 is hereby SUSPENDED until
Civil Case No. 4257-MC is decided on the merits with finality. 23
The appellate court ruled that the Secretary of Justice committed grave
abuse of discretion amounting to lack or excess of jurisdiction in reversing
the Resolutions of the Malabon City Prosecutor and in finding that Eduardo
did not act in good faith when he demanded for the examination of VMC and
Genatos corporate books. It further held that Eduardo can demand said
examination as a stockholder of both corporations; that Eduardo raised
legitimate questions that necessitated inspection of the corporate books and
records; and that petitioners refusal to allow inspection created probable
cause to believe that they have committed a violation of Section 74 of the
Corporation Code.
On June 19, 2007, the Court of Appeals denied the Motions for
Reconsideration filed by petitioners and the Secretary of Justice. 24 Hence,
this petition raising the following issues:
WHETHER OR NOT THE HONORABLE COURT OF APPEALS
WAS CORRECT IN ITS FINDING THAT THE HONORABLE
JUSTICE SECRETARYS REVERSAL OF THE MALABON CITY
PROSECUTORSRESOLUTION FINDING PROBABLE CAUSE
AGAINST HEREIN PETITIONERS WAS DONE CONTRARY TO
THE APPLICABLE LAW AND JURISPRUDENCE TANTAMOUNT TO
GRAVE ABUSE OF DISCRETION.
WHETHER OR NOT THE HONORABLE JUSTICE SECRETARY
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION IN REVERSING THE
RESOLUTION OF THE MALABON CITY PROSECUTOR FINDING
PROBABLE
CAUSE
AGAINST
PETITIONERS
AFTER
PRELIMINARY INVESTIGATION FOR VIOLATION OF SECTION 74
OF THE CORPORATION CODE OF THE PHILIPPINES.
WHETHER OR NOT THE HONORABLE JUSTICE SECRETARY
COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO
LACK OR EXCESS OF JURISDICTION IN FINDING THAT

PETITIONERS ACTED IN GOOD FAITH WHEN THEY DENIED


PRIVATE RESPONDENTS DEMAND FOR INSPECTION OF
CORPORATE BOOKS.25
We grant the petition.
Probable cause, for purposes of filing a criminal information, has been
defined as such facts as are sufficient to engender a well-founded belief that
a crime has been committed and that respondent is probably guilty thereof. It
is such a state of facts in the mind of the prosecutor as would lead a person
of ordinary caution and prudence to believe or entertain an honest or strong
suspicion that a thing is so. The term does not mean "actual or positive
cause;" nor does it import absolute certainty. It is merely based on opinion
and reasonable belief. Thus, a finding of probable cause does not require an
inquiry into whether there is sufficient evidence to procure a conviction. It is
enough that it is believed that the act or omission complained of constitutes
the offense charged. Precisely, there is a trial for the reception of
prosecutions evidence in support of the charge." 26
The determination of the existence of probable cause lies within the
discretion of the prosecuting officers after conducting a preliminary
investigation upon complaint of an offended party. Their decisions are
reviewable by the Secretary of Justice who may direct the filing of the
corresponding information or to move for the dismissal of the case. 27
In reversing the Resolutions of the Secretary of Justice directing the
withdrawal of the information filed against petitioners for lack of probable
cause, the Court of Appeals held that it was beyond the Secretary of
Justices authority to determine the motives of Eduardo in seeking an
inspection of the corporations books and papers.
In order that probable cause to file a criminal case may be arrived at, or in
order to engender the well-founded belief that a crime has been committed,
the elements of the crime charged should be present. 28 This is based on the
principle that every crime is defined by its elements, without which there
should be at the most no criminal offense.
29

In Gokongwei, Jr. v. Securities and Exchange Commission, this Court


explained the rationale behind a stockholder's right to inspect corporate
books, to wit:
The stockholder's right of inspection of the corporation's books and
records is based upon their ownership of the assets and property of
the corporation. It is, therefore, an incident of ownership of the
corporate property, whether this ownership or interest be termed an

equitable ownership, a beneficial ownership, or a quasi-ownership.


This right is predicated upon the necessity of self-protection. It is
generally held by majority of the courts that where the right is
granted by statute to the stockholder, it is given to him as such and
must be exercised by him with respect to his interest as a
stockholder and for some purpose germane thereto or in the interest
of the corporation. In other words, the inspection has to be
germane to the petitioner's interest as a stockholder, and has to
be proper and lawful in character and not inimical to the interest
of the corporation.30
In Republic v. Sandiganbayan,31 the Court declared that the right to inspect
and/or examine the records of a corporation under Section 74 of the
Corporation Code is circumscribed by the express limitation contained in the
succeeding proviso, which states that:
[I]t shall be a defense to any action under this section that the
person demanding to examine and copy excerpts from the
corporation's records and minutes has improperly used any
information securedthrough any prior examination of the records or
minutes of such corporation or of any other corporation, orwas not
acting in good faith or for a legitimate purpose in making his
demand. (Emphasis supplied)
Thus, contrary to Eduardos insistence, the stockholders right to inspect
corporate books is not without limitations. While the right of inspection was
enlarged under the Corporation Code as opposed to the old Corporation Law
(Act No. 1459, as amended),
It is now expressly required as a condition for such examination
that the one requesting it must not have been guilty of using
improperly any information secured through a prior examination, or
that the person asking for such examination must be acting in good
faith and for a legitimate purpose in making his demand. 32 (Emphasis
supplied)
In order therefore for the penal provision under Section 144 of the
Corporation Code to apply in a case of violation of a stockholder or members
right to inspect the corporate books/records as provided for under Section 74
of the Corporation Code, the following elements must be present:
First. A director, trustee, stockholder or member has made a prior demand in
writing for a copy of excerpts from the corporations records or minutes;

Second. Any officer or agent of the concerned corporation shall refuse to


allow the said director, trustee, stockholder or member of the corporation to
examine and copy said excerpts;
Third. If such refusal is made pursuant to a resolution or order of the board of
directors or trustees, the liability under this section for such action shall be
imposed upon the directors or trustees who voted for such refusal; and,
Fourth. Where the officer or agent of the corporation sets up the defense that
the person demanding to examine and copy excerpts from the corporations
records and minutes has improperly used any information secured through
any prior examination of the records or minutes of such corporation or of any
other corporation, or was not acting in good faith or for a legitimate purpose
in making his demand, the contrary must be shown or proved.
Thus, in a criminal complaint for violation of Section 74 of the Corporation
Code, the defense of improper use or motive is in the nature of a justifying
circumstance that would exonerate those who raise and are able to prove the
same. Accordingly, where the corporation denies inspection on the ground of
improper motive or purpose, the burden of proof is taken from the
shareholder and placed on the corporation.33 This being the case, it would be
improper for the prosecutor, during preliminary investigation, to refuse or fail
to address the defense of improper use or motive, given its express statutory
recognition. In the past we have declared that if justifying circumstances are
claimed as a defense, they should have at least been raised during
preliminary investigation;34 which settles the view that the consideration and
determination of justifying circumstances as a defense is a relevant subject
of preliminary investigation.
A preliminary investigation is in effect a realistic judicial appraisal of the
merits of the case; sufficient proof of the guilt of the criminal respondent must
be adduced so that when the case is tried, the trial court may not be bound,
as a matter of law, to order an acquittal. 35 Although a preliminary
investigation is not a trial and is not intended to usurp the function of the trial
court, it is not a casual affair; the officer conducting the same investigates or
inquires into the facts concerning the commission of the crime with the end in
view of determining whether or not an information may be prepared against
the accused.36 After all, the purpose of preliminary investigation is not only to
determine whether there is sufficient ground to engender a well-founded
belief that a crime has been committed and the respondent therein is
probably guilty thereof and should be held for trial; it is just as well for the
purpose of securing the innocent against hasty, malicious and oppressive
prosecution, and to protect him from an open and public accusation of a
crime, from the trouble, expense and anxiety of a public trial. 37 More
importantly, in the appraisal of the case presented to him for resolution, the
duty of a prosecutor is more to do justice and less to prosecute. 38

If the prosecutor is convinced during preliminary investigation of the validity


of the respondents claim of a justifying circumstance, then he must dismiss
the complaint; if not, then he must file the requisite information. This is his
discretion, the exercise of which we grant sufficient latitude. 39
In the instant case, the Court finds that the Court of Appeals erred in
declaring that the Secretary of Justice exceeded his authority when he
conducted an inquiry on the petitioners defense of improper use and motive
on Eduardos part. As a necessary element in the offense of refusal to honor
a stockholder/members right to inspect the corporate books/records, it was
incumbent upon the Secretary of Justice to determine that all the elements
which constitute said offense are present, in line with our ruling in Duterte v.
Sandiganbayan.
A preliminary investigation is the crucial sieve in the criminal justice system
which spells for an individual the difference between months if not years of
agonizing trial and possibly jail term, on the one hand, and peace of mind
and liberty, on the other. Thus, we have characterized the right to a
preliminary investigation as not a mere formal or technical right but a
substantive one, forming part of due process in criminal justice. 40 Due
process, in the instant case, requires that an inquiry into the motive behind
Eduardos attempt at inspection should have been made even during the
preliminary investigation stage, just as soon as petitioners set up the defense
of improper use and motive.
Petitioners argue that Eduardos demand for an inspection of the
corporations books is based on the latters attempt in bad faith at having his
more than P165 million advances from the corporations written off; that
Eduardo is unjustly demanding that he be given the office of Jason, or the
Vice Presidency for Finance and Corporate Secretary; that Eduardo is
usurping rights belonging exclusively to the corporations; and Eduardos
attempts at coercing the corporations, their directors and officers into giving
in to his baseless demands involving specific corporate assets. Specifically,
petitioners accuse Eduardo of the following:
1. He is a spendthrift, using the family corporations resources to
sustain his extravagant lifestyle. During his incumbency as officer of
VMC and Genato (from 1984 to 2000), he was able to obtain
massive amounts by way of cash advances from these corporations,
amounting to more than P165 million;
2. He is exercising undue pressure upon petitioners in order to
acquire ownership, through the forced execution of a deed of
donation, over the VAG Building in San Juan, which building belongs
to Genato;

3. He is putting pressure on the corporations, through their directors


and officers, for the latter to disregard their respective policies which
prohibit the grant of cash advances to stockholders.
4. At one time, he coerced Flordeliza for the latter to sell her WackWack Golf Proprietary Share;
5. In May 2003, without the requisite authority, he called a
"stockholders meeting" to demand an increase in his P140,000.00
monthly allowance from the corporation to P250,000.00; demand a
cash advance of US$10,000; and to demand that the corporations
shoulder the medical and educational expenses of his family as well
as those of the other stockholders;
6. In November 2003, he demanded that he be given an office within
the corporations premises. In December 2003, he stormed the
corporations common office, ordered the employees to vacate the
premises, summoned the directors to a meeting, and there he
berated them for not acting on his requests. In January 2004, he
returned to the office, demanding the transfer of the Accounting
Department and for Jason to vacate his office by the end of the
month. He likewise left a letter which contained his demands. At the
end of January 2004, he returned, ordered the employees to leave
the premises and demanded that Jason surrender his office and
vacate his desk. He did this no less than four (4) times. As a result,
the respective boards of directors of the corporations resolved to ban
him from the corporate premises;
7. He has been interfering in the everyday operations of VMC and
Genato, usurping the duties, rights and authority of the directors and
officers thereof. He attempted to lease out a warehouse within the
VMC premises without the knowledge and consent of its directors
and officers; during the wake of the former President of VMC and
Genato, he issued instructions for the employees to close down
operations for the whole duration of the wake, against the corporate
officers instructions to attend the wake by batch, so as not to
hamper business operations; he has caused chaos and confusion in
VMC and Genato as a result;41
8. He is out to sabotage the family corporations.

42

These serious allegations are supported by official and other documents,


such as board resolutions, treasurers affidavits and written communication
from the respondent Eduardo himself, who appears to have withheld his
objections to these charges. His silence virtually amounts to an

acquiescence.43 Taken together, all these serve to justify petitioners


allegation that Eduardo was not acting in good faith and for a legitimate
purpose in making his demand for inspection of the corporate books.
Otherwise stated, there is lack of probable cause to support the allegation
that petitioners violated Section 74 of the Corporation Code in refusing
respondents request for examination of the corporation books.
WHEREFORE, the Petition for Review on Certiorari is GRANTED. The
March 6, 2007 Decision and June 19, 2007 Resolution of the Court of
Appeals in CA-G.R. SP No. 94708 are REVERSED and SET ASIDE. The
July 26, 2005 and March 29, 2006 Resolutions of the Secretary of Justice
directing the withdrawal of the information filed against petitioners for
violation of Section 74 of the Corporation Code are
accordingly REINSTATED and AFFIRMED.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice

WE CONCUR:

MA. ALICIA AUSTRIA-MARTINEZ


Associate Justice

CONCHITA CARPIO MORALES


Associate Justice

MINITA V. CHICO-NAZARIO
Associate Justice

RUBEN T. REYES
Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.

Id. at 124 and 125.

Id. at 221 and 223.

CONSUELO
Associate
Chairperson Third Division

Id. at 117-121: I.S. No. Mal. 2004-1167.

Batas Pambansa Blg. 68 (1980),

YNARES-SANTIAGO
Justice

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer
of the opinion of the Courts Division.
REYNATO S. PUNO
Chief Justice

Footnotes
*

In lieu of Associate Justice Antonio Eduardo B. Nachura.

Rollo, pp. 3-46.

Sec. 74. Books to be kept; stock transfer agent. - Every


corporation shall keep and carefully preserve at its principal
office a record of all business transactions and minutes of all
meetings of stockholders or members, or of the board of
directors or trustees, in which shall be set forth in detail the
time and place of holding the meeting, how authorized, the
notice given, whether the meeting was regular or special, if
special its object, those present and absent, and every act
done or ordered done at the meeting. Upon the demand of
any director, trustee, stockholder or member, the time when
any director, trustee, stockholder or member entered or left
the meeting must be noted in the minutes; and on a similar
demand, the yeas and nays must be taken on any motion or
proposition, and a record thereof carefully made. The protest
of any director, trustee, stockholder or member on any action
or proposed action must be recorded in full on his demand.
The records of all business transactions of the corporation
and the minutes of any meetings shall be open to inspection
by any director, trustee, stockholder or member of the
corporation at reasonable hours on business days and he
may demand, in writing, for a copy of excerpts from said
records or minutes, at his expense.

Id. at 51-63; penned by Associate Justice Ramon M. Bato, Jr. and


concurred in by Associate Justices Remedios A. Salazar-Fernando
and Jose C. Mendoza.
3

Id. at 249-252 and 253.

Id. at 65-66.

Id. at 134-162, entitled "Vibelle Manufacturing Corporation, Genato


Investments, Incorporated, and Oriana Manufacturing Corporation v.
Eduardo Genato Ang, Michael Edward Chi Ang, and John Does and
Jane Does." The case was raffled to Branch 74 of the Regional Trial
Court of Malabon City.

Any officer or agent of the corporation who shall refuse to


allow any director, trustees, stockholder or member of the
corporation to examine and copy excerpts from its records or
minutes, in accordance with the provisions of this Code,
shall be liable to such director, trustee, stockholder or
member for damages, and in addition, shall be guilty of an
offense which shall be punishable under Section 144 of this
Code: Provided, That if such refusal is made pursuant to a
resolution or order of the board of directors or trustees, the
liability under this section for such action shall be imposed
upon the directors or trustees who voted for such refusal:
and Provided, further, That it shall be a defense to any action
under this section that the person demanding to examine

and copy excerpts from the corporation's records and


minutes has improperly used any information secured
through any prior examination of the records or minutes of
such corporation or of any other corporation, or was not
acting in good faith or for a legitimate purpose in making his
demand.

That nothing in this section shall be construed to repeal the


other causes for dissolution of a corporation provided in this
Code.
10

Rollo, pp. 67-74.

11

Stock corporations must also keep a book to be known as


the "stock and transfer book", in which must be kept a record
of all stocks in the names of the stockholders alphabetically
arranged; the installments paid and unpaid on all stock for
which subscription has been made, and the date of payment
of any installment; a statement of every alienation, sale or
transfer of stock made, the date thereof, and by and to
whom made; and such other entries as the by-laws may
prescribe. The stock and transfer book shall be kept in the
principal office of the corporation or in the office of its stock
transfer agent and shall be open for inspection by any
director or stockholder of the corporation at reasonable
hours on business days.

The VAG Building was initially intended to be transferred or


donated to Eduardo, subject to certain conditions pursuant to the
request or suggestion of the late Belen K. Genato (Rollo, pp. 903907); however, said transfer did not materialize (Rollo, pp. 190-191).
12

Civil Case No. Q-0453241 filed with the Regional Trial Court of
Quezon City, Branch 100. The case was dismissed in an Order of the
RTC-QC dated January 6, 2006.
13

Rollo, pp. 505-512, the dispostive portion of which, reads:


WHEREFORE, premises considered, judgment is hereby
rendered:

No stock transfer agent or one engaged principally in the


business of registering transfers of stocks in behalf of a
stock corporation shall be allowed to operate in the
Philippines unless he secures a license from the Securities
and Exchange Commission and pays a fee as may be fixed
by the Commission, which shall be renewable annually:
Provided, That a stock corporation is not precluded from
performing or making transfer of its own stocks, in which
case all the rules and regulations imposed on stock transfer
agents, except the payment of a license fee herein provided,
shall be applicable.

1. Permanently enjoining defendants Eduardo Genato Ang


and Michael Edward Chi Ang, and/or any of their agents,
representatives, lawyers, assignees, heirs, or any other
persons acting under their authority or instructions, from:

Sec. 144. Violations of the Code. - Violations of any of the


provisions of this Code or its amendments not otherwise
specifically penalized therein shall be punished by a fine of
not less than one thousand (P1,000.00) pesos but not more
than ten thousand (P10,000.00) pesos or by imprisonment
for not less than thirty (30) days but not more than five (5)
years, or both, in the discretion of the court. If the violation is
committed by a corporation, the same may, after notice and
hearing, be dissolved in appropriate proceedings before the
Securities and Exchange Commission: Provided, That such
dissolution shall not preclude the institution of appropriate
action against the director, trustee or officer of the
corporation responsible for said violation: Provided, further,

b. Entering the offices of plaintiff corporations


located at 18 J.P. Bautista Ave., Malabon City, Metro
Manila, or any of plaintiff corporations satellite
offices, business centers, distribution offices,
warehouses, or any other property belonging to
plaintiff corporations or otherwise used by them,
without consent of the boards of directors of plaintiff
corporations;

a. Occupying, demanding, claiming or otherwise


attempting to occupy any position or office in Plaintiff
corporations, (except those concomitant to their
rights as stockholders, as the case may be), without
the consent of the boards of directors of plaintiff
corporations;

c. Communicating with the officers and employees,


clients, distributors, business associates of plaintiff
corporations, as well as pertinent government
agencies, for the purpose of sowing enmity between

said persons and plaintiff corporations, or to


otherwise disrupt the smooth operation and
management of plaintiff corporations;

21

Id. at 395-406.

22

Id. at 253.

d. Usurping or exercising rights, privileges or


property belonging to plaintiff corporations, or
representing plaintiff corporations or acting for and in
behalf of plaintiff corporations in any transactions or
dealing with clients, distributors and banks of plaintiff
corporations, or government agencies, or any other
persons with business with plaintiff corporations;

23

Id. at 62-63.

24

CA rollo, pp. 513-532 and Rollo, pp. 672-683.

25

Rollo, pp. 24-25.

e. Seizing, interfering with or otherwise disrupting


the management, operations and/or business of
plaintiff corporations, and other similar acts of
harassment and extortion that would tend to cause
damage to plaintiff corporations.
Further, defendants are hereby ordered to pay plaintiffs the
amount of P500,000.00 for and as attorneys fees and costs
of the suit.

26

Villanueva v. Secretary of Justice, G.R. No. 162187, November 18,


2005, 475 SCRA 495, 511.
27

Advincula v. Court of Appeals, 397 Phil. 641, 650-651 (2000).

28

Duterte v. Sandiganbayan, G.R. No. 130191, April 27, 1998, 289


SCRA 721.
29

178 Phil. 266 (1979).

30

SO ORDERED.

Id. at 314-315, citing Fletcher Cyc, Private Corporations, Vol. 5,


1976 Rev. Ed., . 2213, 2218 & 2222, pp. 693, 709, 725. (Emphasis
supplied)

14

CA-G.R. CV No. 84736, penned by Associate Justice Enrico A.


Lanzanas and concurred in by Associate Justices Edgardo P. Cruz,
and Jose C. Reyes, Jr.; Rollo, pp. 911-927.
15

31

G.R. Nos. 88809 and 88858, July 10, 1991, 199 SCRA 39.

32

Gonzales v. Philippine National Bank, 207 Phil. 425, 430.

33

5A Fletcher Cyc. Corp. . 2220, 2008.

In G.R. No. 178586.

16

Rollo, pp. 114-116; penned by 1st Assistant City Prosecutor Magno


T. Pablo, Jr., as approved by Malabon City-Navotas Prosecutor
Jorge G. Catalan, Jr.
17

Id. at 116 and 220: The City Prosecutor of Malabon found that Ma.
Belinda G. Sandejas was not present during the board meeting on
September 4, 2004 and did not vote on the Resolution denying
Eduardos request to inspect the corporate books of VMC and GII;.

34

People v. Caratao, G.R. No. 126281, June 10, 2003, 403 SCRA
482; People v. Dorado, G.R. No. 122248, February 11, 1999, 303
SCRA 61; People v. Ronquillo, G.R. No. 96125, August 31, 1995,
247 SCRA 793; People v. Salazar, G.R. No. 84391, April 7, 1993,
221 SCRA 170; People v. Vicente, G.R. No. L-31725, February 18,
1986, 141 SCRA 347.
35

18

Id. at 423-438.

19

Id. at 249-252; penned by Undersecretary Ernesto L. Pineda.

20

Id. at 252.

Perez v. Ombudsman, G.R. No. 131445, May 27, 2004, 429 SCRA
357.
36

Sales v. Sandiganbayan, G.R. No. 143802, November 16, 2001,


369 SCRA 293.

37

Okabe v. Judge Gutierrez, G.R. No. 150185, May 27, 2004, 429
SCRA 685, citing People v. Poculan, 167 SCRA 176 (1988).
38

Estrada v. Desierto, G.R. Nos. 146710-15, March 2, 2001, 356


SCRA 108.
39

Camanag v. Guerrero, G.R. No. 121017, February 17, 1997, 268


SCRA 473.
40

Maza v. Gonzalez, G.R. Nos. 172074-76, June 1, 2007, 523 SCRA


318.
41

Court of Appeals Rollo, pages omitted, Joint Counter-Affidavit of


Flordeliza Ang-Abaya and Jason Ang.
42

43

Id., Joint Counter-Affidavit of Hannah Ang and Vincent Genato.

Lagon v. Hooven Comalco Industries, Inc., G.R. No. 135657,


January 17, 2001, 349 SCRA 363.

deeds of real estate mortgage which he submitted to the Office of the


Registrar of Deeds for San Juan, Metro Manila. 2Based on these deeds,
Metrobank foreclosed the two properties securing the 3A Apparel
Corporations loan.3

Republic of the Philippines


SUPREME COURT
Baguio City
SECOND DIVISION
G.R. No. 182573

April 23, 2014

RAY SHU, Petitioner,


vs.
JAIME DEE, ENRIQUETO MAGPANTAY, RAMON MIRANDA, LARRY
MACILLAN, AND EDWIN SO,Respondents.
DECISION
BRION, J.:
We resolve the Rule 45 petit10n for review on certiorari filed by petitioner
Ray Shu (petitioner) seeking the reversal of the decision 1 of the Court of
Appeals (CA) dated June 19, 2007 and its resolution dated April 4, 2008.
These assailed CA rulings annulled the resolution of the Secretary of Justice
finding probable cause for falsification against the respondents.
THE FACTUAL ANTECEDENTS
The petitioner is the President of the 3A Apparel Corporation. He filed a
complaint before the National Bureau of Investigation (NB!) charging the
respondents of falsification of two deeds of real estate mortgage submitted to
the Metropolitan Bank and Trust Company (A4etrobank). Both deeds of real
estate mortgage were allegedly signed by the petitioner, one in his own name
while the other was on behalf of 3A Apparel Corporation.
According to the petitioner, the respondents were employees of Metrobank.
Respondents Jaime T. Dee and Edwin So signed the two deeds of real
estate mortgage as witnesses; respondents Ramon S. Miranda and
Enriqueto I. Magpantay notarized the deeds of real estate mortgage signed
by the petitioner in his own behalf and for the corporation, respectively. The
signature of respondent Larry Macillan, on the other hand, appeared in the

After investigation, the NBI filed a complaint with the City Prosecutor of
Makati (city prosecutor) charging the respondents of the crime of forgery and
falsification of public documents. The NBI supported the complaint with the
Questioned Documents Report No. 746-1098 (questioned documents report)
issued by its Questioned Documents Division. The questioned documents
report states that the signatures of the petitioner which appear on the
questioned deeds are not the same as the standard sample signatures he
submitted to the NBI.4
The respondents argued in their counter-affidavits that they were denied their
right to due process during the NBI investigation because the agency never
required them and Metrobank to submit the standard sample signatures of
the petitioner for comparison.5 The findings contained in the questioned
documents report only covered the sample signatures unilaterally submitted
by the petitioner as compared with the signatures appearing on the two
deeds of real estate mortgage. An examination of the signatures of the
petitioner which appear in several documents in Metrobanks possession
revealed that his signatures in the questioned deeds are genuine. 6 The
respondents also argued that the examination of the documents was
conducted without the original copies of the questioned deeds of real estate
mortgage.
The Ruling of the City Prosecutor
In a resolution dated June 25, 1999, the city prosecutor found no probable
cause against the respondents and, consequently, dismissed the complaint
for lack of merit.
The city prosecutor ruled that the questioned documents report is not
conclusive evidence that the respondents committed the crime charged. It
only proves that the sample signatures which were submitted solely by the
petitioner are different from the signatures appearing on the questioned
deeds. The pieces of evidence presented before the city prosecutor, which
were not made available to the NBI and which the petitioner does not dispute
prove that the same person executed the questioned deeds. 7 The city
prosecutor found that the similarities in the sample signatures submitted by
the respondents and the signatures on the two deeds of real estate mortgage
are so striking that even a layman could see that they were written by one
and the same person.

Furthermore, the documents appended to the respondents counter-affidavit


show that the petitioner availed of the credit line and benefited from its
proceeds. Sufficient consideration also supported the execution of the two
deeds of mortgage.8 The city prosecutor also concluded that the petitioner
used his passport when he executed the questioned deeds before the
respondents-notaries public Magpantay and Miranda, without informing these
notaries that the passport had already been cancelled. This finding presumed
the regularity of the performance of duty of a notary public. 9

In the proceedings before the NBI, the respondents were not furnished a
copy of the complaint and were not likewise required to file their answer or to
present countervailing evidence. All the evidence at the NBI level were solely
provided by the petitioner.17

The petitioner appealed the city prosecutor resolution to the Secretary of


Justice.10

The CA also found that the persons who had been directly and personally
involved in the investigation of the case, like the NBI investigating agent and
the city prosecutor, were convinced that the evidence were not sufficient for
purposes of filing charges against the respondents. The recommendation for
the filing of the complaint came from the NBI chiefs and the Secretary of
Justice who did not personally investigate the case. 19

The Ruling of the Secretary of Justice


The Secretary of Justice reversed the city prosecutors findings. She ruled
that the city prosecutor failed to consider the evidentiary value of the findings
of the NBI questioned documents experts. This NBI finding is entitled to full
faith and credit in the absence of proof of irregularity in the performance of
the experts duties.11
According to the Secretary, the expert evidence, the disclaimer of the
petitioner that he did not sign any promissory note, the lack of proof of receipt
of the proceeds of the loan, all tended to prove that he did not execute the
subject deeds. The complainants evidence is more credible and suffices to
establish probable cause for falsification, as against the respondents
questionable and flawed supporting documents.12
In addition, the finding of the city prosecutor that the petitioners credit line
with Metrobank is sufficient consideration for the execution of the questioned
deeds, even if not palpably erroneous, is still gratuitous and conjectural. 13
The Secretary of Justice denied the respondents motion for reconsideration
prompting them to file a petition for certiorari with the CA. The respondents
alleged that the Secretary of Justice committed grave abuse of discretion
amounting to lack or excess of jurisdiction in issuing the assailed resolution. 14
The ruling of the Court of Appeals
The CA granted the petition and annulled the assailed resolution of the
Secretary of Justice.15
According to the CA, the respondents were denied their right to due process
in the proceedings before the NBI and the Secretary of Justice. 16

In the proceedings before the Secretary of Justice, the respondents were not
furnished with the petition for review that the petitioner filed. They were not
even required to file their answer nor to comment. 18

The CA affirmed the findings of the city prosecutor as he had the opportunity
to examine the documents submitted by the parties, including the
respondents evidence which the NBI did not consider. The CA denied the
petitioners motion for reconsideration;20 hence, the present petition.
The Petitioners Position
The petitioner assigned the following errors:
First, the CA sweepingly relied on the respondents allegation that they had
been denied due process in the proceedings before the Secretary of Justice
despite their active participation in the proceedings through the filing of a
motion for reconsideration.21
Second, the CA erred in giving credence to the findings of the investigating
NBI agent and the city prosecutor. The Secretary of Justice is the ultimate
authority who decides which of the conflicting theories of the complainant
and the respondents should be given weight.22
Third, an NBI experts examination of certain contested documents at the
request of a private litigant does not necessarily nullify the examination
made. Its purpose is to assist the court exercising jurisdiction over the case
in the performance of its duty to correctly settle the issue related to the
documents.23
The Respondents Position

In the respondents Comment and Memorandum, they reiterated their


argument that they were prevented from participating in the proceedings
before the NBI and the Secretary of Justice, resulting in the denial of their
right to due process.24 Moreover, the questioned documents report issued by
the NBI was one-sided, thus, casting doubt on its veracity and reliability;
thus, it deserves no weight and credence.25 The Secretary of Justice erred in
giving more weight to the questioned documents report and the petitioners
self-serving denials.26
In addition, the respondents argued that there was no evidence pointing to
them as the perpetrators of the forgery, if indeed there had been any. The
expert opinion, disclaimer of the petitioner and the alleged lack of proof of
receipt of the proceeds of the loan could only support a finding that the
petitioner did not execute the questioned deeds or obtain loans from the
bank. Too, there was no evidence that the respondents would gain pecuniary
benefits from the commission of the crime.27
The Courts ruling
We find the petition meritorious.
The respondents were not denied their right to due process
We find no merit in the respondents claim that they were denied due process
when they were not informed by the Secretary of Justice of the pendency of
the petitioners appeal.
The essence of due process is simply the opportunity to be heard. What the
law prohibits is not the absence of previous notice but its absolute absence
and lack of opportunity to be heard. Sufficient compliance with the
requirements of due process exists when a party is given a chance to be
heard through his motion for reconsideration.28
In the present case, we do not find it disputed that the respondents filed with
the Secretary of Justice a motion for reconsideration of her resolution.
Therefore, any initial defect in due process, if any, was cured by the remedy
the respondents availed of.
On the respondents allegation that they were denied due process during the
NBI investigation, we stress that the functions of this agency are merely
investigatory and informational in nature. It has no judicial or quasi-judicial
powers and is incapable of granting any relief to any party. It cannot even
determine probable cause. The NBI is an investigative agency whose
findings are merely recommendatory. It undertakes investigation of crimes
upon its own initiative or as public welfare may require in accordance with its

mandate. It also renders assistance when requested in the investigation or


detection of crimes in order to prosecute the persons responsible. 29
Since the NBIs findings were merely recommendatory, we find that no denial
of the respondents due process right could have taken place; the NBIs
findings were still subject to the prosecutors and the Secretary of Justices
actions for purposes of finding the existence of probable cause.
We find it significant that the specimen signatures in the possession of
Metrobank were submitted by the respondents for the consideration of the
city prosecutor and eventually of the Secretary of Justice during the
preliminary investigation proceedings. Thus, these officers had the
opportunity to examine these signatures.
The respondents were not likewise denied their right to due process when
the NBI issued the questioned documents report. We note that this report
merely stated that the signatures appearing on the two deeds and in the
petitioners submitted sample signatures were not written by one and the
same person.30 Notably, there was no categorical finding in the questioned
documents report that the respondents falsified the documents. This report,
too, was procured during the conduct of the NBIs investigation at the
petitioners request for assistance in the investigation of the alleged crime of
falsification. The report is inconclusive and does not prevent the respondents
from securing a separate documents examination by handwriting experts
based on their own evidence. On its own, the NBIs questioned documents
report does not directly point to the respondents involvement in the crime
charged. Its significance is that, taken together with the other pieces of
evidence submitted by the parties during the preliminary investigation, these
evidence could be sufficient for purposes of finding probable cause the
action that the Secretary of Justice undertook in the present case.
The Secretary of Justice did not commit grave abuse of discretion
Probable cause pertains to facts and circumstances sufficient to support a
well-founded belief that a crime has been committed and the accused is
probably guilty thereof.31
It is well-settled that in order to arrive at a finding of probable cause, the
elements of the crime charged should be present. In determining these
elements for purposes of preliminary investigation, only facts sufficient to
support a prima facie case against the respondent are required, not absolute
certainty. Thus, probable cause implies mere probability of guilt, i.e., a finding
based on more than bare suspicion but less than evidence that would justify
a conviction.32

The elements of falsification of public documents are as follows: (1) the


offender is a private individual or a public officer or employee who did not
take advantage of his official position; (2) he committed any of the acts of
falsification enumerated in Article 171 of the RPC; and (3) the falsification
was committed in a public, official or commercial document. 33
In light of the discussion above, we rule that the findings of the Secretary of
Justice are more in accord with the duty to determine the existence of
probable cause than the findings of the city prosecutor.
Contrary to the respondents assertions, the Secretary of Justice did not just
merely give credence to the questioned documents report and the
petitioners self-serving allegations.1wphi1 The Secretary of Justice made a
holistic review of the parties submitted pieces of evidence in ruling that "the
expert evidence, the disclaimer of the petitioner that he did not sign any
promissory note, the lack of proof of receipt of the proceeds of the loan, all
tend to prove that he did not execute the subject deeds. Also, the finding in
the assailed resolution that the credit line of the petitioner with Metrobank is
sufficient consideration for him to have executed the deeds is gratuitous and
conjectural."
From the evidence submitted by the parties, the petitioner offered sufficient
evidence showing that falsification might have been committed and that the
respondents might have been responsible therefor. The NBIs questioned
documents report states that the questioned deeds of mortgage and the
sample signatures submitted by the petitioner were not written by one and
the same person. It was also shown that the respondents Dee, So,
Magpantay and Miranda signed and participated in the execution of the two
deeds of real estate mortgage and the respondent Macillan signed and
submitted these documents to the Office of the Registrar of Deeds for San
Juan, Metro Manila. The petitioner also submitted evidence that the passport
used in notarizing the documents was a cancelled passport. Furthermore, as
the Secretary of Justice found, the respondents did not show that the
petitioner received the proceeds of the loan.
The findings of the city prosecutor are not proper in a preliminary
investigation but should be threshed out in a full-blown trial
In contrast, the city prosecutor negated the questioned documents report
issued by the NBI. He concluded that the documents submitted by the
respondents showed that even a layman could see the striking similarities of
the alleged signatures of the petitioner in the questioned deeds and in the
documents submitted by the respondents. He also concluded that the
petitioner misrepresented to the respondents-notaries public Miranda and

Magpantay that the passport used in notarizing the questioned deeds was
not yet cancelled.
In arriving at these conclusions, the city prosecutor already delved into the
merits of the respondents defense. This is contrary to the well-settled rule
that the validity and merits of a partys defense and accusation, as well as
admissibility of testimonies and evidence, are better ventilated during trial
proper than at the preliminary investigation level. 34 The allegations adduced
by the prosecution will be put to test in a full-blown trial in which evidence
shall be analyzed, weighed, given credence or disproved. 35 The preliminary
investigation is not the occasion for the full and exhaustive display of the
parties evidence.36 Simply put, in determining probable cause, the average
man weighs facts and circumstances without resorting to the rules of
evidence that, as a rule, is outside his technical knowledge. 37
That the findings of the city prosecutor should be ventilated in a full-blown
trial is highlighted by the reality that the authenticity of a questioned signature
cannot be determined solely upon its general characteristics, or its
similarities or dissimilarities with the genuine signature. 38 The duty to
determine the authenticity of a signature rests on the judge who must
conduct an independent examination of the signature itself in order to arrive
at a reasonable conclusion as to its authenticity. Thus, Section 22 of Rule
132 of the Rules of Court explicitly authorizes the court, by itself, to make a
comparison of the disputed handwriting "with writings admitted or treated as
genuine by the party against whom the evidence is offered, or proved to be
genuine."39
Read in this light, the respondents' defense that there are striking similarities
in the specimen signatures they submitted and those of the questioned
deeds is a matter of evidence whose consideration is proper only in a fullblown trial. In that proper forum, the respondents can present evidence to
prove their defense and controvert the questioned documents report; they
can raise as issue the alleged irregularities in the conduct of the examination.
The Secretary of Justice has the power to review the findings of the city
prosecutor
We also find that the CA erred in ruling that the city prosecutor's findings
should be given more weight than the findings of the Secretary of Justice.
The determination of probable cause is essentially an executive function,
lodged in the first place on the prosecutor who conducted the preliminary
investigation. The prosecutor's ruling is reviewable by the Secretary who, as
the final determinative authority on the matter, has the power to reverse,
modify or affirm the prosecutor's determination.40

It is well-settled that the findings of the Secretary of Justice are not subject to
interference by the courts, save only when he acts with grave abuse of
discretion amounting to lack or excess of jurisdiction; when he grossly
misapprehends facts; when he acts in a manner so patent and gross as to
amount to an evasion of positive duty or a virtual refusal to perform the duty
enjoined by law; or when he acts outside the contemplation of law.41

Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairperson's Attestation, I certify that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer
of the opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice

Contrary to the findings of the CA, we find that the Secretary of Justice did
not gravely abuse the exercise of her discretion in reversing the findings of
the city prosecutor.
WHEREFORE, we GRANT the petition and REVERSE and SET ASIDE the
decision of the Court of Appeals dated June 19, 2007 and its resolution dated
April 4, 2008.
SO ORDERED.
ARTURO D. BRION
Associate Justice

Footnotes
1

Penned by Associate Justice Josefina Guevara-Salonga; concurred


in by Associate Justice Vicente Q. Roxas and Ramon R. Garcia,
Rullo, pp. 46.
2

Id. at p. 37

Id. at pp. 36, 69

Id. at p. 37.

Id. at pp. 37-38

Id.. at p. 38

Id. at p. 38.

WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson
MARIANO C. DEL CASTILLO
Associate Justice

JOSE PORTUGAL PEREZ


Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice
ATTE S TATI O N

The Inter Office Letter of Metrobank submitted by the respondents


show the banks approval in favor of 3A an increased Credit Line
amounting to US$1.5 million;
9

I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court's Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
C E R TI F I CATI O N

Rollo at pp. 38-39

10

Id at. p. 39

11

Id. at p. 71

12

Id. at pp. 71-72

13

Id at p. 72

14

Id. at p. 39

34

15

Id. at p. 40

16

Id. at p. 42

35

Ricaforte v. Jurado, G.R. No. 154438, September 5, 2007

17

Id

36

Lee et al. v. KBC Bank N.V., G.R. No. 164673, January 15, 2010.

18

Id.

37

19

Id. at p. 44

Ricaforte v. Jurado, G.R. No. 154438, September 5, 2007; United


Coconut Planters Bank vs. Looyuko et al., G.R. No. 156337,
September 28, 2007.

Kalalo v. Office of the Ombudsman et al., G.R. No. 158189, April


23, 2010.
38

Jimenez et al. v. Commission on Ecumenical Mission and


Relations of the United Prysbeterian Church in the United States of
America et al. G.R. No. 140472. June 10, 2002.

20

Id at. p. 48.

21

Id. at pp. 12, 15-15

39

Id. at pp. 17-18

40

22

23

Id at 19

24

Id at. pp. 367-369

25

Id at p. 371

26

Id. at 377.

27

Id at pp. 374, 377

28

P/Insp. Ariel S. Artillero v. Orlando Casimiro, et al., G.R. No.


190569, April 25, 2012;
29

Cabarrus Jr. v. Bernas, A.C. No. 4634. September 24, 1997.

30

Rollo, p. 320

31

Villanueva et al. v. Caparas, G.R. No. 190969, January 30, 2013.

32

Id.

33

Panuncio v. People of the Philippines, G.R. No. 165678, July 17,


2009.

Id.

Villanueva and the Secretary of.Justice v. Caparas, G.R. No.


190969: January 30, 2013; This is embodied in Section 38,
paragraph J, Chapter 7, Book IV of the Revised Administrative Code.
41

Villanueva et al v. Caparas, supra.

Ombudsman dated 27 March 2014 and the proceedings in OMB-C-C-1303013 and OMB-C-C-13-0397 subsequent to and affected by the issuance of
the challenged 27 March 2014 Order are void.

Republic of the Philippines


SUPREME COURT
Manila
EN BANC
G.R. Nos. 212140-41

January 21, 2015

SENATOR JINGGOY EJERCITO ESTRADA, Petitioner,


vs.
OFFICE OF THE OMBUDSMAN, FIELD INVESTIGATION OFFICE, Office
of the Ombudsman, NATIONAL BUREAU OF INVESTIGATION and ATTY.
LEVITO D. BALIGOD, Respondents.
DECISION
CARPIO, J.:
It is a fundamental principle that the accused in a preliminary investigation
has no right to cross-examine the witnesses which the complainant may
present. Section 3, Rule 112 of the Rules of Court expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to examine
all other evidence submitted by the complainant and, where the fiscal sets a
hearing to propound clarificatory questions to the parties or their witnesses,
to be afforded an opportunity to be present but without the right to examine
or crossexamine.
- Paderanga v. Drilon1
This case is a Petition for Certiorari 2 with prayer for (1) the issuance of a
temporary restraining order and/or Writ of Preliminary Injunction enjoining
respondents Office of the Ombudsman (Ombudsman), Field Investigation
Office (FIO) of the Ombudsman, National Bureau of Investigation (NBI), and
Atty. Levito D. Baligod (Atty. Baligod) (collectively, respondents), from
conducting further proceedings in OMB-CC-13-03013 and OMB-C-C-130397 until the present Petition has been resolved with finality; and (2) this
Courts declaration that petitioner Senator Jinggoy Ejercito Estrada (Sen.
Estrada)was denied due process of law, and that the Order of the

OMB-C-C-13-0313,3 entitled National Bureau of Investigation and Atty. Levito


D. Baligod v. Jose "Jinggoy" P. Ejercito Estrada, et al.,refers to the complaint
for Plunder as defined under Republic Act (RA) No. 7080, while OMB-C-C13-0397,4 entitled Field Investigation Office, Office of the Ombudsman v.
Jose "Jinggoy" P. Ejercito-Estrada, et al., refers to the complaint for Plunder
as defined underRA No. 7080 and for violation of Section 3(e) of RA No.
3019 (Anti-Graft and Corrupt Practices Act).
The Facts
On 25 November 2013, the Ombudsman served upon Sen. Estrada a copy
of the complaint in OMB-C-C-13-0313, filed by the NBI and Atty. Baligod,
which prayed, among others, that criminal proceedings for Plunder as
defined in RA No. 7080 be conducted against Sen. Estrada. Sen. Estrada
filed his counter-affidavit inOMB-C-C-13-0313 on 9 January 2014.
On 3 December 2013, the Ombudsman served upon Sen. Estrada a copy of
the complaint in OMB-C-C-13-0397, filed by the FIO of the Ombudsman,
which prayed, among others, that criminal proceedings for Plunder, as
defined in RA No. 7080, and for violation of Section 3(e) of RA No. 3019, be
conducted against Sen. Estrada. Sen. Estrada filed his counter affidavit in
OMB-C-C-13-0397 on 16 January 2014.
Eighteen of Sen. Estradas co-respondents in the two complaints filed their
counter-affidavits between 9 December 2013 and 14 March 2014. 5
On 20 March 2014, Sen. Estrada filed his Request to be Furnished with
Copies of Counter-Affidavits of the Other Respondents, Affidavits of New
Witnesses and Other Filings (Request) in OMB-C-C-13-0313. In his Request,
Sen. Estrada asked for copies of the following documents:
(a) Affidavit of [co-respondent] Ruby Tuason (Tuason);
(b) Affidavit of [co-respondent] Dennis L. Cunanan (Cunanan);
(c) Counter-Affidavit of [co-respondent] Gondelina G. Amata (Amata);
(d) Counter-Affidavit of [co-respondent] Mario L. Relampagos
(Relampagos);

(e) Consolidated Reply of complainant NBI, if one had been filed;


and

supporting witnesses to execute affidavits to substantiate the


complaints.

(f) Affidavits/Counter-Affidavits/Pleadings/Filings filed by all the other


respondents and/or additional witnesses for the Complainants. 6

b) After such affidavits have been secured, the investigating officer


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

Sen. Estradas request was made "[p]ursuant to the right of a respondent to


examine the evidence submitted by the complainant which he may not have
been furnished (Section 3[b], Rule 112 of the Rules of Court) and to have
access to the evidence on record (Section 4[c], Rule II of the Rules of
Procedure of the Office of the Ombudsman)."7
On 27 March 2014, the Ombudsman issued the assailed Order in OMB-C-C13-0313. The pertinent portions of the assailed Order read:
This Office finds however finds [sic] that the foregoing provisions [pertaining
to Section 3[b], Rule 112 of the Rules of Court and Section 4[c], Rule II of the
Rules of Procedure of the Office of the Ombudsman] do not entitle
respondent [Sen. Estrada]to be furnished all the filings of the respondents.
Rule 112 (3) (a) & (c) of the Rules of Court provides [sic]:
(a) The complaintshall state the address of the respondent and shall
be accompanied by the affidavits of the complainant and his
witnesses, as well as other supporting documents to establish
probable cause
xxx

xxx

xxx

(c) Within ten (10) days from receipt of the subpoena with the
complaint and supporting affidavits and documents, the respondent
shall submit his counter affidavit and that of his witnesses and other
supporting documents relied upon for his defense. The counter
affidavits shall be subscribed and sworn to and certified as provided
in paragraph (a) of this section, with copies thereof furnished by him
to the complainant.
Further to quote the rule in furnishing copies of affidavits to parties under the
Rules of Procedure of the Office of the Ombudsman [Section 4 of Rule II of
Administrative Order No. 07 issued on April 10, 1990]:
a) If the complaint is not under oath or is based only on official
reports, the investigating officer shall require the complainant or

It can be gleaned from these aforecited provisions that this Office is required
to furnish [Sen. Estrada] a copy of the Complaint and its supporting affidavits
and documents; and this Office complied with this requirement when it
furnished [Sen. Estrada] with the foregoing documents attached to the
Orders to File Counter-Affidavit dated 19 November 2013 and 25 November
2013.
It is to be noted that there is noprovision under this Offices Rules of
Procedure which entitles respondent to be furnished all the filings by the
other parties, e.g. the respondents. Ruby Tuason, Dennis Cunanan,
Gondelina G. Amata and Mario L. Relampagos themselves are all
respondents in these cases. Under the Rules of Court as well as the Rules of
Procedure of the Office of the Ombudsman, the respondents are only
required to furnish their counter-affidavits and controverting evidence to the
complainant, and not to the other respondents.
To reiterate, the rights of respondent [Sen.] Estrada in the conduct of the
preliminary investigation depend on the rights granted to him by law and
these cannot be based on whatever rights he believes [that] he is entitled to
or those that may be derived from the phrase "due process of law." Thus, this
Office cannot grant his motion to be furnished with copies of all the filings by
the other parties. Nevertheless, he should be furnished a copy of the Reply
of complainant NBI as he is entitled thereto under the rules; however, as of
this date, no Reply has been filed by complainant NBI.
WHEREFORE, respondent [Sen.] Estradas Request to be Furnished with
Copies of Counter-Affidavits of the Other Respondents, Affidavits of New
Witnesses and Other Filingsis DENIED. He is nevertheless entitled to be
furnished a copy of the Reply if complainant opts to file such
pleading.8 (Emphases in the original)
On 28 March 2014, the Ombudsman issued in OMB-C-C-13-0313 and OMBC-C-13-0397 a Joint Resolution9which found probable cause to indict Sen.
Estrada and his co-respondents with one count of plunder and 11 counts of

violation of Section 3(e) of RA No. 3019. Sen. Estrada filed a Motion for
Reconsideration (of the Joint Resolution dated 28 March 2014) dated 7 April
2014. Sen. Estrada prayed for the issuance of a new resolution dismissing
the charges against him. Without filing a Motion for Reconsideration of the
Ombudsmans 27 March 2014 Order denying his Request, Sen. Estrada filed
the present Petition for Certiorari under Rule 65 and sought to annul and set
aside the 27 March 2014 Order.

As of 2 June 2014,the date of filing of the Ombudsmans Comment to the


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

THE ARGUMENTS

While it is true that Senator Estradas request for copies of Tuason,


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

Sen. Estrada raised the following grounds in his Petition:


THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED
ORDER DATED 27 MARCH 2014, ACTED WITHOUT OR IN EXCESS OF
ITS JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF JURISDICTION AND VIOLATED
SEN. ESTRADA'S CONSTITUTIONAL RIGHT TO DUE PROCESS OF
LAW.10 Sen. Estrada also claimed that under the circumstances, he has "no
appeal or any other plain, speedy, and adequate remedy in the ordinary
course of law, except through this Petition." 11 Sen. Estrada applied for the
issuance of a temporary restraining order and/or writ of preliminary injunction
to restrain public respondents from conducting further proceedings in OMBC-C-13-0313 and OMB-C-C-13-0397. Finally, Sen. Estrada asked for a
judgment declaring that (a) he has been denied due process of law, and as a
consequence thereof, (b) the Order dated 27 March 2014, as well as the
proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 subsequent to
and affected bythe issuance of the 27 March 2014 Order, are void. 12
On the same date, 7 May 2014, the Ombudsman issued in OMBC-C-130313 and OMB-C-C-13-0397 a Joint Order furnishing Sen. Estrada with the
counter-affidavits of Tuason, Cunanan, Amata, Relampagos, Francisco
Figura, Gregoria Buenaventura, and Alexis Sevidal, and directing him to
comment thereon within a non-extendible period of five days fromreceipt of
the order.
On 12 May 2014, Sen. Estrada filed before the Ombudsman a motion to
suspend proceedings in OMB-C-C-13-0313 and OMB-C-C-13-0397 because
the denial of his Request to be furnished copies of counter-affidavits of his
co-respondents deprived him of his right to procedural due process, and he
has filed the present Petition before thisCourt. The Ombudsman denied Sen.
Estradas motion to suspend in an Order dated 15 May 2014. Sen. Estrada
filed a motion for reconsideration of the Order dated 15 May 2014 but his
motion was denied in an Order dated 3 June 2014.

This Office, in fact, held in abeyance the disposition of the motions for
reconsideration in this proceeding in light of its grant to Senator Estrada a
period of five days from receipt of the 7 May 2014 Order to formally respond
to the above-named co-respondents claims.
In view of the foregoing, this Office fails to see how Senator Estrada was
deprived of his right to procedural due process.13 (Emphasis supplied)
On 2 June 2014, the Ombudsman, the FIO, and the NBI (collectively, public
respondents), through the Officeof the Solicitor General, filed their Comment
to the present Petition. The public respondents argued that:
I. PETITIONER [SEN.
PROCESS OF LAW.

ESTRADA]

WAS

NOTDENIED

DUE

II. THE PETITION FOR CERTIORARI IS PROCEDURALLY INFIRM.


A. LITIS PENDENTIA EXISTS IN THIS CASE.
B. PETITIONER HAS A PLAIN, SPEEDY AND ADEQUATE
REMEDY IN THE ORDINARY COURSE OF LAW.
III. PETITIONER IS NOTENTITLED TO A WRIT OF PRELIMINARY
INJUNCTION AND/OR TEMPORARY RESTRAINING ORDER.14
On 6 June 2014, Atty. Baligod filed his Comment to the present Petition. Atty.
Baligod stated that Sen. Estradas resort to a Petition for Certiorari under
Rule 65 is improper. Sen. Estrada should have either filed a motion for

reconsideration of the 27 March 2014 Order or incorporated the alleged


irregularity in his motion for reconsideration of the 28 March 2014 Joint
Resolution. There was also no violation of Sen. Estradas right to due
process because there is no rule which mandates that a respondent such as
Sen. Estrada be furnished with copies of the submissions of his
corespondents.
On 16 June 2014, Sen. Estrada filed his Reply to the public respondents
Comment. Sen. Estrada insisted that he was denied due process. Although
Sen. Estrada received copies of the counter-affidavits of Cunanan, Amata,
Relampagos, Buenaventura, Figura, Sevidal, as well as one of Tuasons
counter-affidavits, heclaimed that he was not given the following documents:
a) One other Counter-Affidavit of Ruby Tuason dated 21 February
2014;
b) Counter-Affidavit of Sofia D. Cruz dated 31 January 2014;

a recurring violation of his right to due process. Sen. Estrada also


insists that there is no forum shopping as the present Petition arose
from an incident in the main proceeding, and that he has no other
plain, speedy, and adequate remedy in the ordinary course of law.
Finally, Sen. Estrada reiterates his application for the issuance of a
temporary restraining order and/or writ of preliminary injunction to
restrain public respondents from conducting further proceedings in
OMB-C-C-13-0313 and OMB-C-C-13-0397.
This Courts Ruling
Considering the facts narrated above, the Ombudsmans denial in its 27
March 2014 Order of Sen. Estradas Request did not constitute grave abuse
of discretion. Indeed, the denial did not violate Sen. Estradas constitutional
right to due process.
First. There is no law or rule which requires the Ombudsman to furnish a
respondent with copies of the counter-affidavits of his co-respondents.

c) Counter-Affidavit of Evelyn Sugcang dated 11 February 2014;


d) Two (2) Counter-Affidavits of Alan A. Javellana dated 06 February
2014;

We reproduce below Sections 3 and 4, Rule 112 of the Revised Rules of


Criminal Procedure, as well as Rule II of Administrative Order No. 7, Rules of
Procedure of the Office of the Ombudsman, for ready reference.

e) Counter-Affidavit of VictorRoman Cojamco Cacal dated 11


December 2013 (to the FIO Complaint);

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


Investigation

f) Counter-Affidavit of VictorRoman Cojamco Cacal dated 22 January


2014 (to the NBI Complaint);

Section 3. Procedure. The preliminary investigation shall be conducted in


the following manner:

g) Two (2) counter-affidavits of Ma. Julie A. VillaralvoJohnson both


dated 14 March 2014;

(a) The complaint shall state the address of the respondent and shall
be accompanied by the affidavits of the complainant and his
witnesses, as well as other supporting documents to establish
probable cause. They shall be in such number of copies as there are
respondents, plus two (2) copies for the official file. The affidavits
shall be subscribed and sworn to before any prosecutor or
government official authorized to administer oath, or, in their absence
or unavailability, before a notary public, each of who must certify
thathe personally examined the affiants and that he is satisfied that
they voluntarily executed and understood their affidavits.

h) Counter-affidavit of Rhodora Bulatad Mendoza dated 06 March


2014;
i) Counter-affidavit of Maria Ninez P. Guaizo dated 28 January
2014;
j) Two (2) counter-affidavits of Marivic V. Jover both dated 09
December 2013; and
k) Counter-affidavit of Francisco B. Figura dated 08 January 2014.
Sen. Estrada argues that the Petition isnot rendered moot by the
subsequent issuance of the 7 May 2014 Joint Order because there is

(b) Within ten (10) days after the filing of the complaint, the
investigating officer shall either dismiss it if he finds no ground to
continue with the investigation, or issue a subpoena to the
respondent attaching to it a copy of the complaint and its supporting
affidavits and documents. The respondent shall have the right to

examine the evidence submitted by the complainant which he may


not have been furnished and to copy them at his expense. If the
evidence is voluminous, the complainant may be required to specify
those which he intends to present against the respondent, and these
shall be made available for examination or copying by the
respondent at his expense.
Objects as evidence need not be furnished a party but shall be made
available for examination, copying, or photographing at the expense
of the requesting party.
(c) Within ten (10) days from receipt of the subpoena with the
complaint and supporting affidavits and documents, the respondent
shall submit his counter-affidavit and that of his witnesses and other
supporting documents relied upon for his defense. The counteraffidavits shall be subscribed and sworn to and certified as provided
in paragraph (a) of this section, with copies thereof furnished by him
to the complainant. The respondent shall not be allowed to file a
motion to dismiss in lieu of a counter-affidavit.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does
not submit counter-affidavits within the ten (10) day period, the
investigating officer shall resolve the complaint based on the
evidence presented by the complainant.
(e) The investigating officer may set a hearing if there are facts and
issues to be clarified from a party ora witness. The parties can be
present at the hearing but without the right to examine or crossexamine. They may, however, submit to the investigating officer
questions which may be asked to the party or witness concerned.
The hearing shall be held within ten (10) days from submission of the
counter-affidavits and other documents or from the expiration of the
period for their submission. It shall be terminated within five (5) days.
(f) Within ten (10) days after the investigation, the investigating
officer shall determine whether or not there is sufficient ground to
hold the respondent for trial. Section 4. Resolution of investigating
prosecutor and its review. If the investigating prosecutor finds
cause to hold the respondent for trial, he shall prepare the resolution
and information. He shall certify under oath in the information that
he, or as shown by the record, an authorized officer, has personally
examined the complainant and his witnesses; that there is
reasonable ground to believe that a crime has been committed and
that the accused is probably guilty thereof; that the accused was

informed of the complaint and of the evidence submitted against him;


and that he was given an opportunity to submit controverting
evidence. Otherwise, he shall recommend the dismissal of the
complaint.
Within five (5) days from his resolution, he shall forward the record of
the case to the provincial or city prosecutor or chief state prosecutor,
or to the Ombudsman orhis deputy in cases of offenses cognizable
by the Sandiganbayan in the exercise of its original jurisdiction. They
shall act on the resolution within ten (10) days from their receipt
thereof and shall immediately inform the parties of such action.
No complaint or information may be filed or dismissed by an investigating
prosecutor without the prior written authority or approval of the provincial or
city prosecutor or chief state prosecutor or the Ombudsman or his deputy.
Where the investigating prosecutor recommends the dismissal of the
complaint but his recommendation is disapproved by the provincial or city
prosecutor or chief state prosecutor or the Ombudsman or his deputy on the
ground that a probable cause exists, the latter may, by himself, file the
information against the respondent, or direct any other assistant prosecutor
or state prosecutor to do so without conducting another preliminary
investigation.
If upon petition by a proper party under such rules as the Department of
Justice may prescribe or motu proprio, the Secretary of Justice reverses or
modifies the resolution of the provincial or city prosecutor or chief state
prosecutor, he shall direct the prosecutor concerned either to file the
corresponding information without conducting another preliminary
investigation, or to dismiss or move for dismissal of the complaint or
information with notice to the parties. The same rule shall apply in preliminary
investigations conducted by the officers of the Office of the Ombudsman.
From the Rules of Procedure of the Office of the Ombudsman, Administrative
Order No. 7, Rule II: Procedure in Criminal Cases
Section 1. Grounds. A criminal complaint may be brought for an offense in
violation of R.A. 3019,as amended, R.A. 1379, as amended, R.A. 6713, Title
VII, Chapter II, Section 2 of the Revised Penal Code, and for such other
offenses committed by public officers and employees in relation to office.
Sec. 2. Evaluation. Upon evaluating the complaint, the investigating officer
shall recommend whether it may be:
a) dismissed outright for want of palpable merit;

b) referred to respondent for comment;

c) If the respondent does not file a counter-affidavit, the investigating


officer may consider the comment filed by him, if any, as his answer
to the complaint. In any event, the respondent shall have access to
the evidence on record.

c) indorsed to the proper government office or agency which has


jurisdiction over the case;

d) No motion to dismiss shall be allowed except for lack of


jurisdiction. Neither may a motion for a bill of particulars be
entertained. If respondent desires any matter in the complainants
affidavit to be clarified, the particularization thereof may be done at
the time of clarificatory questioning in the manner provided in
paragraph (f) of this section.

d) forwarded to the appropriate office or official for fact-finding


investigation;
e) referred for administrative adjudication; or
f) subjected to a preliminary investigation.

e) If the respondent cannot be served with the order mentioned in


paragraph 6 hereof, or having been served, does not comply
therewith, the complaint shall be deemed submitted for resolution on
the basis of the evidence on record.

Sec. 3. Preliminary investigation; who may conduct. Preliminary


investigation may be conducted by any of the following:
1) Ombudsman Investigators;

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

2) Special Prosecuting Officers;


3) Deputized Prosecutors;
4) Investigating Officials authorized by law to conduct preliminary
investigations; or
5) Lawyers in the government service, so designated by the
Ombudsman.
Sec. 4. Procedure. The preliminary investigation of cases falling under the
jurisdiction of the Sandiganbayan and Regional Trial Courts shall be
conducted in the manner prescribed in Section 3, Rule 112 of the Rules of
Court, subject to the following provisions:
a) If the complaint is not under oath or is based only on official
reports, the investigating officer shall require the complainant or
supporting witnesses to execute affidavits to substantiate the
complaints.
b) After such affidavits have been secured, the investigating officer
shall issue an order, attaching thereto a copy of the affidavits and
other supporting documents, directing the respondent to submit,
within ten (10) days from receipt thereof, his counter-affidavits and
controverting evidence with proof of service thereof on
thecomplainant. The complainant may file reply affidavits within ten
(10) days after service of the counter-affidavits.

g) Upon the termination of the preliminary investigation, the


investigating officer shall forward the records of the case together
with his resolution to the designated authorities for their appropriate
action thereon.
No information may be filed and no complaint may be dismissed without the
written authority or approval of the Ombudsman in cases falling within the
jurisdiction of the Sandiganbayan, or of the proper Deputy Ombudsman in all
other cases.
xxxx
Sec. 6. Notice to parties. The parties shall be served with a copy of the
resolution as finally approved by the Ombudsman or by the proper Deputy
Ombudsman.

Sec. 7. Motion for reconsideration. a) Only one (1) motion for


reconsideration or reinvestigation of anapproved order or resolution shall be
allowed, the same to be filed within fifteen (15) days from notice thereof with
the Office of the Ombudsman, or the proper deputy ombudsman as the case
may be.
xxxx
b) The filing of a motion for reconsideration/reinvestigation shall not bar the
filing of the corresponding Information in court on the basis of the finding of
probable cause in the resolution subject of the motion. (Emphasis supplied)
Sen. Estrada claims that the denial of his Request for the counter affidavits of
his co-respondents violates his constitutional right to due process. Sen.
Estrada, however, fails to specify a law or rule which states that it is a
compulsory requirement of due process in a preliminary investigation that the
Ombudsman furnish a respondent with the counter-affidavits of his corespondents. Neither Section 3(b), Rule 112 of the Revised Rules of Criminal
Procedure nor Section 4(c), Rule II of the Rules of Procedure of the Office of
the Ombudsman supports Sen. Estradas claim. What the Rules of
Procedure of the Office of the Ombudsman require is for the Ombudsman to
furnish the respondent with a copy of the complaint and the supporting
affidavits and documents at the time the order to submit the counter-affidavit
is issued to the respondent. This is clear from Section 4(b), Rule II of the
Rules of Procedure of the Office of the Ombudsman when it states, "[a]fter
such affidavits [of the complainant and his witnesses] have been secured,
the investigating officer shall issue an order, attaching thereto a copy of the
affidavits and other supporting documents, directing the respondent to
submit, within ten (10) days from receipt thereof, his counter-affidavits x x x."
At this point, there is still no counter-affidavit submitted by any respondent.
Clearly, what Section 4(b) refers to are affidavits of the complainant and his
witnesses, not the affidavits of the co-respondents. Obviously, the counteraffidavits of the co-respondents are not part of the supporting affidavits of the
complainant. No grave abuse of discretion can thus be attributed to the
Ombudsman for the issuance of the 27 March 2014 Order which denied Sen.
Estradas Request.
Although Section 4(c), Rule II of the Rules of Procedure of the Office of the
Ombudsman provides that a respondent "shall have access to the evidence
on record," this provision should be construed in relation to Section 4(a) and
(b) of the same Rule, as well as to the Rules of Criminal Procedure. First,
Section 4(a) states that "theinvestigating officer shall require the complainant
or supporting witnesses to execute affidavits to substantiate the complaint."
The "supporting witnesses" are the witnesses of the complainant, and do not
refer to the co-respondents.

Second, Section 4(b) states that "the investigating officer shall issue an order
attaching thereto a copy of the affidavits and all other supporting documents,
directing the respondent" tosubmit his counter-affidavit. The affidavits
referred to in Section 4(b) are the affidavits mentioned in Section
4(a). Clearly, the affidavits to be furnished to the respondent are the affidavits
of the complainant and his supporting witnesses. The provision in the
immediately succeeding Section 4(c) of the same Rule II that a respondent
shall have "access to the evidence on record" does not stand alone, but
should be read in relation to the provisions of Section 4(a and b) of the same
Rule II requiring the investigating officer to furnish the respondent with the
"affidavits and other supporting documents" submitted by "the complainant or
supporting witnesses." Thus, a respondents "access to evidence on record"
in Section 4(c), Rule II of the Ombudsmans Rules of Procedure refers to the
affidavits and supporting documents of "the complainant or supporting
witnesses" in Section 4(a) of the same Rule II.
Third, Section 3(b), Rule 112 of the Revised Rules of Criminal Procedure
provides that "[t]he respondent shall have the right to examine the evidence
submitted by the complainant which he may not have been furnished and to
copy them at his expense." A respondents right to examine refers only to
"the evidence submitted by the complainant."
Thus, whether under Rule 112 of the Revised Rules of Criminal Procedure or
under Rule II of the Ombudsmans Rules of Procedure, there is no
requirement whatsoever that the affidavits executed by the corespondents
should be furnished to a respondent. Justice Velascos dissent relies on the
ruling in Office of the Ombudsman v. Reyes (Reyes case), 15 an administrative
case, in which a different set of rules of procedure and standards apply. Sen.
Estradas Petition, in contrast, involves the preliminary investigation stage in
a criminal case. Rule III on the Procedure in Administrative Cases of the
Rules of Procedure of the Office of the Ombudsman applies in the Reyes
case, while Rule II on the Procedure in Criminal Cases of the Rules of
Procedure of the Office of the Ombudsman applies in Sen. Estradas Petition.
In both cases, the Rules of Court apply in a suppletory character or by
analogy.16
In the Reyescase, the complainant Acero executed an affidavit against
Reyes and Pealoza, who were both employees of the Land Transportation
Office. Pealoza submitted his counter-affidavit, as well as those of his two
witnesses. Reyes adopted his counter-affidavit in another case before the
Ombudsman as it involved the same parties and the same incident. None of
the parties appeared during the preliminary conference. Pealoza waived his
right to a formal investigation and was willing to submit the case for
resolution based on the evidence on record. Pealoza also submitted a
counter-affidavit of his third witness. The Ombudsman found Reyes guilty of

grave misconduct and dismissed him from the service. On the other hand,
Pealoza was found guilty of simple misconduct and penalized with
suspension from office without pay for six months. This Court agreed with the
Court of Appeals finding that Reyes right to due process was indeed
violated. This Court remanded the records of the case to the Ombudsman,
for two reasons: (1) Reyes should not have been meted the penalty of
dismissal from the service when the evidence was not substantial, and (2)
there was disregard of Reyes right to due process because he was not
furnished a copy of the counter-affidavits of Pealoza and of Pealozas
three witnesses. In the Reyes case, failure to furnish a copy of the counteraffidavits happened in the administrative proceedings on the merits, which
resulted in Reyes dismissal from the service. In Sen. Estradas Petition, the
denial of his Request happened during the preliminary investigation where
the only issue is the existence of probable cause for the purpose of
determining whether an information should be filed, and does not prevent
Sen. Estrada from requesting a copy of the counter-affidavits of his corespondents during the pre-trial or even during the trial.
We should remember to consider the differences in adjudicating cases,
particularly an administrative case and a criminal case:
Any lawyer worth his salt knows that quanta of proof and adjective rules vary
depending on whether the cases to which they are meant to apply are
criminal, civil or administrative in character. In criminal actions, proof beyond
reasonable doubt is required for conviction;in civil actions and proceedings,
preponderance of evidence, as support for a judgment; and in administrative
cases, substantial evidence, as basis for adjudication. In criminal and civil
actions, application of the Rules of Court is called for, with more or less
strictness. In administrative proceedings, however, the technical rules of
pleadingand procedure, and of evidence, are not strictly adhered to; they
generally apply only suppletorily; indeed, in agrarian disputes application of
the Rules of Court is actually prohibited.17
It should be underscored that the conduct of a preliminary investigation is
only for the determination of probable cause, and "probable cause merely
implies probability of guilt and should be determined in a summary manner. A
preliminary investigation is not a part of the trial and it is only in a trial where
an accused can demand the full exercise of his rights, such as the right to
confront and cross-examine his accusers to establish his innocence." 18Thus,
the rights of a respondent in a preliminary investigation are limited to those
granted by procedural law.
A preliminary investigation is defined as an inquiry or proceeding for the
purpose of determining whether there is sufficient ground to engender a well
founded belief that a crime cognizable by the Regional Trial Court has been
committed and that the respondent is probably guilty thereof, and should be

held for trial. The quantum of evidence now required in preliminary


investigation is such evidence sufficient to "engender a well founded belief"
as tothe fact of the commission of a crime and the respondent's probable
guilt thereof. A preliminary investigation is not the occasion for the full and
exhaustive display of the parties evidence; it is for the presentation of such
evidence only as may engender a well-grounded belief that an offense has
been committed and that the accused is probably guilty thereof. We are in
accord with the state prosecutors findings in the case at bar that there exists
prima facie evidence of petitioners involvement in the commission of the
crime, it being sufficiently supported by the evidence presented and the facts
obtaining therein.
Likewise devoid of cogency is petitioners argument that the testimonies of
Galarion and Hanopol are inadmissible as to him since he was not granted
the opportunity of cross-examination.
It is a fundamental principle that the accused in a preliminary investigation
has no right to cross-examine the witnesses which the complainant may
present. Section 3, Rule 112 of the Rules of Court expressly provides that the
respondent shall only have the right to submit a counter-affidavit, to examine
all other evidence submitted by the complainant and, where the fiscal sets a
hearing to propound clarificatory questions to the parties or their witnesses,
to be afforded an opportunity to be present but without the right to examine
or cross-examine. Thus, even if petitioner was not given the opportunity to
cross-examine Galarion and Hanopol atthe time they were presented to
testify during the separate trial of the case against Galarion and Roxas, he
cannot assert any legal right to cross-examine them at the preliminary
investigation precisely because such right was never available to him. The
admissibility or inadmissibility of said testimonies should be ventilated before
the trial court during the trial proper and not in the preliminary investigation.
Furthermore, the technical rules on evidence are not binding on the fiscal
who has jurisdiction and control over the conduct of a preliminary
investigation. If by its very nature a preliminary investigation could be waived
by the accused, we find no compelling justification for a strict application of
the evidentiary rules. In addition, considering that under Section 8, Rule 112
of the Rules of Court, the record of the preliminary investigation does not
form part of the record of the case in the Regional Trial Court, then the
testimonies of Galarion and Hanopol may not be admitted by the trial court if
not presented in evidence by the prosecuting fiscal. And, even if the
prosecution does present such testimonies, petitioner can always object
thereto and the trial court can rule on the admissibility thereof; or the
petitioner can, during the trial, petition said court to compel the presentation
of Galarion and Hanopol for purposes of cross-examination. 19 (Emphasis
supplied)

Furthermore, in citing the Reyes case, Justice Velascos dissent overlooked


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

(2) Not only must the party be given an opportunity to present his
case and adduce evidence tending to establish the rights which he
asserts but the tribunal must consider the evidence presented. x x x.

Moreover, the sufficiency of the evidence put forward by the Ombudsman


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

(5) The decision must be rendered on the evidence presented at the


hearing, or at least contained in the record and disclosed to the
parties affected. x x x.

We likewise take exception to Justice Brions assertion that "the due process
standards that at the very least should be considered in the conduct of a
preliminary investigation are those that this Court first articulated in Ang Tibay
v. Court of Industrial Relations [Ang Tibay]." 21 Simply put, the Ang Tibay
guidelines for administrative cases do not apply to preliminary investigations
in criminal cases. An application of the Ang Tibay guidelines to preliminary
investigations will have absurd and disastrous consequences.
Ang Tibay enumerated the constitutional requirements of due process, which
Ang Tibay described as the "fundamental and essential requirements of due
process in trials and investigations of an administrative character." 22 These
requirements are "fundamental and essential" because without these, there
isno due process as mandated by the Constitution. These "fundamental and
essential requirements" cannot be taken away by legislation because theyare
part of constitutional due process. These "fundamental and essential
requirements" are:
(1) The first of these rights is the right to a hearing, which includes
the right of the party interested or affected to present his own case
and submit evidence in support thereof. x x x.

(3) "While the duty to deliberatedoes not impose the obligation to


decide right, it does imply a necessity which cannot be disregarded,
namely, that of having something to support its decision. A decision
with absolutely nothing to support it is a nullity, x x x."
(4) Not only must there be some evidence to support a finding or
conclusion, but the evidence must be "substantial." "Substantial
evidence is more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion." x x x.

(6) The Court of Industrial Relations or any of its judges, therefore,


must act on its or his own independent consideration of the law and
facts of the controversy, and not simply accept the views of a
subordinate in arriving at a decision. x x x.
(7) The Court of Industrial Relations should, in all controversial
questions, render its decision in sucha manner that the parties to the
proceeding can know the various issues involved, and the reasons
for the decisions rendered. The performance of this duty is
inseparable from the authority conferred upon it.23
The guidelines set forth in Ang Tibay are further clarified in GSIS v.
CA24 (GSIS): "what Ang Tibay failed to explicitly state was, prescinding from
the general principles governing due process, the requirement of an impartial
tribunalwhich, needless to say, dictates that one called upon to resolve a
dispute may not sit as judge and jury simultaneously, neither may he review
his decision on appeal."25 The GSIS clarification affirms the non applicability
of the Ang Tibay guidelines to preliminary investigations in criminal cases:
The investigating officer, which is the role that the Office of the Ombudsman
plays in the investigation and prosecution of government personnel, will
never be the impartial tribunal required in Ang Tibay, as amplified in GSIS.
The purpose of the Office of the Ombudsman in conducting a preliminary
investigation, after conducting its own factfinding investigation, is to
determine probable cause for filing an information, and not to make a final
adjudication of the rights and obligations of the parties under the law, which
is the purpose of the guidelines in Ang Tibay. The investigating officer

investigates, determines probable cause, and prosecutes the criminal case


after filing the corresponding information.

had been adduced to establish probable cause and clarificatory hearing was
unnecessary.27

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

Justice J.B.L. Reyes, writing for the Court, emphatically declared in Lozada v.
Hernandez,28 that the "rights conferred upon accused persons to participate
in preliminary investigations concerning themselves depend upon the
provisions of law by which such rights are specifically secured, rather than
upon the phrase due process of law." This reiterates Justice Jose P. Laurels
oft-quoted pronouncement in Hashim v. Boncan29 that "the right to a
preliminary investigation is statutory, not constitutional." In short, the rights of
a respondent ina preliminary investigation are merely statutory rights, not
constitutional due process rights. An investigation to determine probable
cause for the filing of an information does not initiate a criminal action so as
to trigger into operation Section 14(2), Article III of the Constitution. 30 It is the
filing of a complaint or information in court that initiates a criminal action. 31

Moreover, a person under preliminary investigation, as Sen. Estrada is in the


present case when he filed his Request, is not yet an accused person, and
hence cannot demand the full exercise of the rights of an accused person:
A finding of probable cause needs only to rest on evidence showing that
more likely than not a crime has been committed and was committed by the
suspects. Probable cause need not be based on clear and convincing
evidence of guilt, neither on evidence establishing guilt beyond reasonable
doubt and definitely, not on evidence establishing absolute certainty of guilt.
As well put in Brinegar v. United States, while probable cause demands more
than "bare suspicion," it requires "less than evidence which would justify . . .
conviction." A finding of probable cause merely binds over the suspect to
stand trial. It is not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to support a
finding of probable cause, wealso hold that the DOJ Panel did not gravely
abuse its discretion in refusing to call the NBI witnesses for clarificatory
questions. The decision to call witnesses for clarificatory questions is
addressed to the sound discretion of the investigator and the investigator
alone. If the evidence on hand already yields a probable cause, the
investigator need not hold a clarificatory hearing. To repeat, probable cause
merely implies probability of guilt and should be determined in a summary
manner. Preliminary investigation is not a part of trial and it is only in a trial
where an accused can demand the full exercise of his rights, such as the
right to confront and cross-examine his accusers to establish his innocence.
In the case at bar, the DOJ Panel correctly adjudged that enough evidence

The rights to due process in administrative cases as prescribed in Ang


Tibay,as amplified in GSIS, are granted by the Constitution; hence, these
rights cannot be taken away by merelegislation. On the other hand, as
repeatedly reiterated by this Court, the right to a preliminary investigation is
merely a statutory right,32 not part of the "fundamental and essential
requirements" of due process as prescribed in Ang Tibay and amplified in
GSIS. Thus, a preliminary investigation can be taken away by legislation. The
constitutional right of an accused to confront the witnesses against him does
not apply in preliminary investigations; nor will the absence of a preliminary
investigation be an infringement of his right to confront the witnesses against
him.33 A preliminary investigation may be done away with entirely without
infringing the constitutional right of an accused under the due process clause
to a fair trial.34
The quantum of evidence needed in Ang Tibay, as amplified in GSIS, is
greater than the evidenceneeded in a preliminary investigation to establish
probable cause, or to establish the existence of a prima facie case that would
warrant the prosecution of a case. Ang Tibay refers to "substantial evidence,"
while the establishment of probable cause needs "only more than bare
suspicion, or less than evidence which would justify . . . conviction." In the
United States, from where we borrowed the concept of probable cause, 35 the
prevailing definition of probable cause is this:
In dealing with probable cause, however, as the very name implies, we deal
with probabilities.These are not technical; they are the factual and practical
considerations of everyday life on which reasonable and prudent men, not
legal technicians, act. The standard of proof is accordingly correlative to what
must be proved.

"The substance of all the definitions" of probable cause "is a reasonable


ground for belief of guilt." McCarthy v. De Armit, 99 Pa. St. 63, 69, quoted
with approval in the Carroll opinion. 267 U. S. at 161. And this "means less
than evidence which would justify condemnation" or conviction, as Marshall,
C. J., said for the Court more than a century ago in Locke v. United States, 7
Cranch 339, 348. Since Marshalls time, at any rate, it has come to mean
more than bare suspicion: Probable cause exists where "the facts and
circumstances within their [the officers] knowledge and of which they had
reasonably trustworthy information [are] sufficient in themselves to warrant a
man of reasonable caution in the belief that" an offense has been or is being
committed. Carroll v. United States, 267 U. S. 132, 162.
These long-prevailing standards seek to safeguard citizens from rash and
unreasonable interferences with privacy and from unfounded charges of
crime. They also seek to give fair leeway for enforcing the law in the
communitys protection. Because many situations which confront officers in
the course of executing their duties are more or less ambiguous, room must
be allowed for some mistakes on their part. But the mistakes must be those
of reasonable men, acting on facts leading sensibly to their conclusions of
probability. The rule of probable cause is a practical, non technical
conception affording the best compromise that has been found for
accommodating these often opposing interests. Requiring more would unduly
hamper law enforcement. To allow less would be to leave law-abiding
citizens at the mercy of the officers whim or caprice.36
In the Philippines, there are four instances in the Revised Rules of Criminal
Procedure where probable cause is needed to be established:
(1) In Sections 1 and 3 of Rule 112: By the investigating officer, to
determine whether there is sufficient ground to engender a wellfounded belief that a crime has been committed and the respondent
is probably guilty thereof, and should be held for trial. A preliminary
investigation is required before the filing of a complaint or information
for an offense where the penalty prescribed by law is at least four
years, two months and one day without regard to the fine;
(2) In Sections 6 and 9 of Rule 112: By the judge, to determine
whether a warrant of arrest or a commitment order, if the accused
has already been arrested, shall be issued and that there is a
necessity of placing the respondent under immediate custody in
order not to frustrate the ends of justice;
(3) In Section 5(b) of Rule 113: By a peace officer or a private person
making a warrantless arrest when an offense has just been
committed, and he has probable cause to believe based on personal

knowledge of facts or circumstances that the person to be arrested


has committed it; and
(4) In Section 4 of Rule 126: By the judge, to determine whether a
search warrant shall be issued, and only upon probable cause in
connection with one specific offense to be determined personally by
the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly
describing the place to be searched and the things to be seized
which may be anywhere in the Philippines.
In all these instances, the evidence necessary to establish probable cause is
based only on the likelihood, or probability, of guilt. Justice Brion, in the
recent case of Unilever Philippines, Inc. v. Tan37 (Unilever), stated:
The determination of probable cause needs only to rest on evidence showing
that more likely than not, a crime has been committed and there is enough
reason to believe that it was committed by the accused. It need not be based
on clear and convincing evidence of guilt, neither on evidence establishing
absolute certainty of guilt. What is merely required is "probability of guilt." Its
determination, too, does not call for the application of rules or standards of
proof that a judgment of conviction requires after trial on the merits. Thus, in
concluding that there is probable cause, it suffices that it is believed that the
act or omission complained of constitutes the very offense charged.
It is also important to stress that the determination of probable cause does
not depend on the validity or merits of a partys accusation or defense or on
the admissibility or veracity of testimonies presented. As previously
discussed, these matters are better ventilated during the trial proper of the
case. As held in Metropolitan Bank & Trust Company v. Gonzales:
Probable cause has been defined as the existence of such facts and
circumstances as would excite the belief in a reasonable mind, acting on the
facts within the knowledge of the prosecutor, that the person charged was
guilty of the crime for which he was prosecuted. x x x. The term does not
mean "actual or positive cause" nor does it import absolute certainty. It is
merely based on opinion and reasonable belief. Thus, a finding of probable
cause does not require an inquiry into whether there is sufficient evidence to
procure a conviction. It is enough that it is believed that the act or omission
complained of constitutes the offense charged. Precisely, there is a trial for
the reception of evidence of the prosecution in support of the charge. (Bold
facing and italicization supplied)
Justice Brions pronouncement in Unilever that "the determination of
probable cause does not depend on the validity or merits of a partys

accusation or defense or on the admissibility or veracity of testimonies


presented" correctly recognizes the doctrine in the United States that the
determination of probable cause can rest partially, or even entirely, on
hearsay evidence, as long as the person making the hearsay statement is
credible. In United States v. Ventresca,38 the United States Supreme Court
held:
While a warrant may issue only upon a finding of "probable cause," this Court
has long held that "the term probable cause . . . means less than evidence
which would justify condemnation," Locke v. United States, 7 Cranch 339, 11
U.S. 348, and that a finding of "probable cause" may rest upon evidence
which is not legally competent in a criminal trial. Draper v. United States, 358
U.S. 307, 358 U.S. 311. As the Court stated in Brinegar v. United States, 338
U.S. 160, 173, "There is a large difference between the two things tobe
proved (guilt and probable cause), as well as between the tribunals which
determine them, and therefore a like difference in the quanta and modes of
proof required to establish them." Thus, hearsay may be the basis for
issuance of the warrant "so long as there . . . [is] a substantial basis for
crediting the hearsay." Jones v. United States, supra, at 362 U.S. 272. And,
in Aguilar, we recognized that "an affidavit may be based on hearsay
information and need not reflect the direct personal observations of the
affiant," so long as the magistrate is "informed of some of the underlying
circumstances" supporting the affiants conclusions and his belief that any
informant involved "whose identity need not be disclosed . . ." was "credible"
or his information "reliable." Aguilar v. Texas, supra, at 378 U.S. 114.
(Emphasis supplied)
Thus, probable cause can be established with hearsay evidence, as long as
there is substantial basis for crediting the hearsay. Hearsay evidence is
admissible in determining probable cause in a preliminary investigation
because such investigation is merely preliminary, and does not finally
adjudicate rights and obligations of parties. However, in administrative cases,
where rights and obligations are finally adjudicated, what is required is
"substantial evidence" which cannot rest entirely or even partially on hearsay
evidence. Substantial basis is not the same as substantial evidence because
substantial evidence excludes hearsay evidence while substantial basis can
include hearsay evidence. To require the application of Ang Tibay, as
amplified in GSIS, in preliminary investigations will change the quantum of
evidence required in determining probable cause from evidence of likelihood
or probability of guilt to substantial evidence of guilt.
It is, moreover, necessary to distinguish between the constitutionally
guaranteed rights of an accused and the right to a preliminary investigation.
To treat them the same will lead toabsurd and disastrous consequences.

All pending criminal cases in all courts throughout the country will have to be
remanded to the preliminary investigation level because none of these will
satisfy Ang Tibay, as amplified in GSIS. Preliminary investigations are
conducted by prosecutors, who are the same officials who will determine
probable cause and prosecute the cases in court. The prosecutor is hardly
the impartial tribunal contemplated in Ang Tibay, as amplified in GSIS. A
reinvestigation by an investigating officer outside of the prosecution service
will be necessary if Ang Tibay, as amplified in GSIS, were to be applied. This
will require a new legislation. In the meantime, all pending criminal cases in
all courts will have to be remanded for reinvestigation, to proceed only when
a new law is in place. To require Ang Tibay, as amplified in GSIS, to apply to
preliminary investigation will necessarily change the concept of preliminary
investigation as we know it now. Applying the constitutional due process in
Ang Tibay, as amplified in GSIS, to preliminary investigation will necessarily
require the application of the rights of an accused in Section 14(2), Article III
of the 1987 Constitution. This means that the respondent can demand an
actual hearing and the right to cross-examine the witnesses against him,
rights which are not afforded at present toa respondent in a preliminary
investigation.
The application of Ang Tibay, as amplified in GSIS, is not limited to those with
pending preliminary investigations but even to those convicted by final
judgment and already serving their sentences. The rule is well-settled that a
judicial decision applies retroactively if it has a beneficial effect on a person
convicted by final judgment even if he is already serving his sentence,
provided that he is not a habitual criminal. 39 This Court retains its control over
a case "until the full satisfaction of the final judgment conformably with
established legal processes."40 Applying Ang Tibay, as amplified in GSIS, to
preliminary investigations will result in thousands of prisoners, convicted by
final judgment, being set free from prison.
Second. Sen. Estradas present Petition for Certiorari is premature.
Justice Velascos dissent prefers thatSen. Estrada not "be subjected to the
rigors of a criminal prosecution incourt" because there is "a pending question
regarding the Ombudsmans grave abuse of its discretion preceding the
finding of a probable cause to indict him." Restated bluntly, Justice Velascos
dissent would like this Court to conclude that the mere filing of the present
Petition for Certiorari questioning the Ombudsmans denial of Sen. Estradas
Request should have, by itself, voided all proceedings related to the present
case.
Although it is true that, in its 27 March 2014 Order, the Ombudsman denied
Sen. Estradas Request, the Ombudsman subsequently reconsidered its
Order. On 7 May 2014, the same date that Sen. Estrada filed the present
Petition, the Ombudsman issued a Joint Order in OMB-C-C-13-0313 and

OMB-C-C-13-0397 that furnishedSen. Estrada with the counter-affidavits of


Ruby Tuason, Dennis Cunanan, Gondelina Amata, Mario Relampagos,
Francisco Figura, Gregoria Buenaventura, and AlexisSevidal, and directed
him to comment within a non-extendible period of five days from receipt of
said Order. Sen. Estrada did not file any comment, as noted in the 4 June
2014 Joint Order of the Ombudsman.
On 4 June 2014, the Ombudsman issued another Joint Order and denied
Sen. Estradas Motion for Reconsideration ofits 28 March 2014 Joint
Resolution which found probable cause toindict Sen. Estrada and his
corespondents with one count of plunder and 11 counts of violation of
Section 3(e), Republic Act No. 3019. In this 4 June 2014 Joint Order, the
Ombudsman stated that "[t]his Office, in fact, held in abeyance the
disposition of motions for reconsideration in this proceeding in light of its
grant to Senator Estrada a period of five days from receipt of the 7 May 2014
Order to formally respond to the above-named respondents claims."
We underscore Sen. Estradas procedural omission. Sen. Estrada did not file
any pleading, much less a motion for reconsideration, to the 27 March 2014
Order inOMB-C-C-13-0313. Sen. Estrada immediately proceeded to file this
Petition for Certiorari before this Court. Sen. Estradas resort to a petitionfor
certiorari before this Court stands in stark contrast to his filing of his 7 April
2014 Motion for Reconsideration of the 28 March 2014 Joint Resolution
finding probable cause. The present Petition for Certiorari is premature.
A motion for reconsideration allows the public respondent an opportunity to
correct its factual and legal errors. Sen. Estrada, however, failed to present a
compelling reason that the present Petition falls under the exceptions 41to the
general rule that the filing of a motion for reconsideration is required prior to
the filing of a petition for certiorari. This Court has reiterated in numerous
decisions that a motion for reconsideration is mandatory before the filing of a
petition for certiorari.42
Justice Velascos dissent faults the majority for their refusal to apply the
Reyes case to the present Petition. Justice Velascos dissent insists that "this
Court cannot neglect to emphasize that, despite the variance in the quanta of
evidence required, a uniform observance of the singular concept of due
process is indispensable in all proceedings."
As we try to follow Justice Velascos insistence, we direct Justice Velasco
and those who join him in his dissent to this Courts ruling in Ruivivar v. Office
of the Ombudsman (Ruivivar),43 wherein we stated that "[t]he law can no
longer help one who had been given ample opportunity to be heard but who
did not take full advantage of the proffered chance."

The Ruivivar case, like the Reyes44 case, was also an administrative case
before the Ombudsman. The Ombudsman found petitioner Rachel Beatriz
Ruivivar administratively liable for discourtesy in the course of her official
functions and imposed on her the penalty of reprimand. Petitioner filed a
motion for reconsideration of the decision on the ground that she was not
furnished copies of the affidavits of the private respondents witnesses. The
Ombudsman subsequently ordered that petitioner be furnished with copies of
the counter-affidavits of private respondents witnesses, and that petitioner
should "file, within ten (10) days from receipt of this Order, such pleading
which she may deem fit under the circumstances." Petitioner received copies
of the affidavits, and simply filed a manifestation where she maintained that
her receipt of the affidavits did not alter the deprivation of her right to due
process or cure the irregularity in the Ombudsmans decision to penalize her.
In Ruivivar, petitioner received the affidavits of the private respondents
witnesses afterthe Ombudsman rendered a decision against her. We
disposed of petitioners deprivation of due process claim in this manner:
The CA Decision dismissed the petition for certiorari on the ground that the
petitioner failed to exhaust all the administrative remedies available to her
before the Ombudsman. This ruling is legallycorrect as exhaustion of
administrative remedies is a requisite for the filing of a petition for certiorari.
Other than this legal significance, however, the ruling necessarily carries the
direct and immediate implication that the petitioner has been granted the
opportunity to be heard and has refused to avail of this opportunity; hence,
she cannot claim denial of due process. In the words of the CA ruling itself:
"Petitioner was given the opportunity by public respondent to rebut the
affidavits submitted by private respondent. . . and had a speedy and
adequate administrative remedy but she failed to avail thereof for reasons
only known to her."
For a fuller appreciation of our above conclusion, we clarify that although
they are separate and distinct concepts, exhaustion of administrative
remedies and due process embody linked and related principles. The
"exhaustion" principle applies when the ruling court or tribunal is not given
the opportunity tore-examine its findings and conclusions because of an
available opportunity that a party seeking recourse against the court or the
tribunals ruling omitted to take. Under the concept of "due process," on the
other hand, a violation occurs when a court or tribunal rules against a party
without giving him orher the opportunity to be heard. Thus, the exhaustion
principle is based on the perspective of the ruling court or tribunal, while due
process is considered from the point of view of the litigating party against
whom a ruling was made. The commonality they share is in the
same"opportunity" that underlies both. In the context of the present case, the
available opportunity to consider and appreciate the petitioners counterstatement offacts was denied the Ombudsman; hence, the petitioner is

barred from seeking recourse at the CA because the ground she would
invoke was not considered at all at the Ombudsman level. At the same time,
the petitioner who had the same opportunity to rebut the belatedlyfurnished affidavits of the private respondents witnesses was not denied
and cannot now claim denial of due process because she did not take
advantage of the opportunity opened to her at the Ombudsman level.
The records show that the petitioner duly filed a motion for reconsideration
on due process grounds (i.e., for the private respondents failure to furnish
her copies of the affidavits of witnesses) and on questions relating to the
appreciation of the evidence on record. The Ombudsman acted on this
motion by issuing its Order of January 17, 2003 belatedly furnishing her with
copies of the private respondents witnesses, together with the "directive to
file, within ten (10) days from receipt of this Order, such pleading which she
may deem fit under the circumstances."
Given this opportunity to act on the belatedly-furnished affidavits, the
petitioner simply chose to file a "Manifestation" where she took the position
that "The order of the Ombudsman dated 17 January 2003 supplying her with
the affidavits of the complainant does not cure the 04 November 2002 order,"
and on this basis prayed that the Ombudsmans decision "be reconsidered
and the complaint dismissed for lack of merit."
For her part, the private respondent filed a Comment/Opposition to Motion for
Reconsideration dated 27 January 2003 and prayed for the denial of the
petitioners motion.
In the February 12, 2003 Order, the Ombudsman denied the petitioners
motion for reconsideration after finding no basis to alter or modify its ruling.
Significantly, the Ombudsman fully discussed in this Order the due process
significance of the petitioners failure to adequately respond to the belatedlyfurnished affidavits. The Ombudsman said:
"Undoubtedly, the respondent herein has been furnished by this Office with
copies of the affidavits, which she claims she has not received. Furthermore,
the respondent has been given the opportunity to present her side relative
thereto, however, she chose not to submit countervailing evidence
orargument. The respondent, therefore (sic), cannot claim denial of due
process for purposes of assailing the Decision issued in the present case. On
this score, the Supreme Court held in the case of People v. Acot, 232 SCRA
406, that "a party cannot feign denial of due process where he had the
opportunity to present his side". This becomes all the more important since,
as correctly pointed out by the complainant, the decision issued in the
present case is deemed final and unappealable pursuant to Section 27 of
Republic Act 6770, and Section 7, Rule III of Administrative Order No. 07.

Despite the clear provisions of the law and the rules, the respondent herein
was given the opportunity not normally accorded, to present her side, but she
opted not to do so which is evidently fatal to her cause." [emphasis supplied].
Under these circumstances, we cannot help but recognize that the
petitioners cause is a lost one, not only for her failure to exhaust her
available administrative remedy, but also on due process grounds. The law
can no longer help one who had been given ample opportunity to be heard
but who did not take full advantage of the proffered chance. 45
Ruivivar applies with even greater force to the present Petition because here
the affidavits of Sen. Estradas co-respondents were furnished to him
beforethe Ombudsman rendered her 4 June 2014 Joint Order. In Ruivivar,
the affidavits were furnished after the Ombudsman issued a decision.
Justice Velascos dissent cites the cases of Tatad v. Sandiganbayan 46 (Tatad)
and Duterte v. Sandiganbayan47(Duterte) in an attempt to prop up its stand. A
careful reading of these cases, however, would show that they do not stand
on all fours with the present case. In Tatad, this Court ruled that "the
inordinate delay in terminating the preliminary investigation and filing the
information [by the Tanodbayan] in the present case is violative of the
constitutionally guaranteed right of the petitioner to due process and to a
speedy disposition of the cases against him." 48 The Tanod bayan took almost
three years to terminate the preliminary investigation, despite Presidential
Decree No. 911s prescription of a ten-day period for the prosecutor to
resolve a case under preliminary investigation. We ruled similarly in Duterte,
where the petitioners were merely asked to comment and were not asked to
file counter-affidavits as isthe proper procedure in a preliminary investigation.
Moreover, in Duterte, the Ombudsman took four years to terminate its
preliminary investigation.
As we follow the reasoning in Justice Velascos dissent, it becomes more
apparent that Sen. Estradas present Petition for Certiorari is premature for
lack of filing of a motion for reconsideration before the Ombudsman. When
the Ombudsman gave Sen. Estrada copies of the counter-affidavits and even
waited for the lapse of the given period for the filing of his comment, Sen.
Estrada failed to avail of the opportunity to be heard due to his own fault.
Thus, Sen. Estradas failure cannot in any way be construed as violation of
due process by the Ombudsman, much less of grave abuse of discretion.
Sen. Estrada has not filed any comment, and still chooses not to.
Third. Sen. Estradas present Petition for Certiorari constitutes forum
shopping and should be summarily dismissed.

In his verification and certification of non-forum shopping in the present


petition filed on 7 May 2014, Sen. Estrada stated:
3.1 I, however, disclose that I have filed a Motion for Reconsideration dated
07 April 2014 in OMB-C-C-13-0313 and OMB-CC-13-0397, raising as sole
issuethe finding of probable cause in the Joint Resolution dated 28 March
2014.
Such Motion for Reconsideration has yet to be resolved by the Office of the
Ombudsman.49 (Emphasis supplied)
Sen. Estradas Motion for Reconsideration of the 28 March 2014 Joint
Resolution prayed that the Ombudsman reconsider and issue a new
resolution dismissing the charges against him. However, in this Motion for
Reconsideration, Sen. Estrada assailed the Ombudsmans 27 March 2014
Joint Order denying his Request, and that such denial is a violation of his
right to due process.
8. It is respectfully submitted that the Ombudsman violated the foregoing rule
[Rule 112, Section 4 of the Rules of Court] and principles. A reading of the
Joint Resolution will reveal that various pieces of evidence which Senator
Estrada was not furnished with hence, depriving him of the opportunity to
controvert the same were heavily considered by the Ombudsman in finding
probable cause to charge him with Plunder and with violations of Section 3(e)
of R.A. No. 3019.
xxxx
11. Notably, under dated 20 March 2014, Senator Estrada filed a "Request to
be Furnished with Copies of Counter-Affidavits of the Other Respondents,
Affidavits of New Witnesses and Other Filings," pursuant to the right of a
respondent "to examine the evidence submitted by the complainant which he
may not have been furnished" (Section 3[b], Rule 112 of the Rules of Court),
and to "have access to the evidence on record" (Section 4[c], Rule II of the
Rules of Procedure of the Office of the Ombudsman).
However, notwithstanding the gravity of the offenses leveled against Senator
Estrada and the laws vigilance in protecting the rights of an accused, the
Special Panel of Investigators, in an Order dated 27 March 2014,
unceremoniously denied the request on the ground that "there is no provision
under this Offices Rules of Procedure which entitles respondent to be
furnished all the filings by the other parties x x x x." (Order dated 27 March
2013, p. 3)

As such, Senator Estrada was not properly apprised of the evidence offered
against him, which were eventually made the bases of the Ombudsmans
finding of probable cause.50
The Ombudsman denied Sen. Estradas Motion for Reconsideration in its 4
June 2014 Joint Order. Clearly, Sen. Estrada expressly raised in his Motion
for Reconsideration with the Ombudsman the violation of his right to due
process, the same issue he is raising in this petition. In the verification and
certification of non-forum shopping attached to his petition docketed as G.R.
Nos. 212761-62 filed on 23 June 2014, Sen. Estrada disclosed the pendency
of the present petition, as well as those before the Sandiganbayan for the
determination of the existence of probable cause. In his petition in G.R. Nos.
212761-62, Sen. Estrada again mentioned the Ombudsmans 27 March 2014
Joint Order denying his Request.
17. Sen. Estrada was shocked not only at the Office of the Ombudsmans
finding of probable cause, which he maintains is without legal or factual
basis, but also thatsuch finding of probable cause was premised on evidence
not disclosed tohim, including those subject of his Request to be Furnished
with Copiesof Counter-Affidavits of the Other Respondents, Affidavits of New
Witnesses and Other Filings dated 20 March 2014.
In particular, the Office of the Ombudsman used as basis for the Joint
Resolution the following documents
i. Alexis G. Sevidals Counter-Affidavits dated 15 January and 24
February 2014;
ii. Dennis L. Cunanans Counter-Affidavits both dated 20 February
2014;
iii. Francisco B. Figuras Counter-Affidavit dated 08 January 2014;
iv. Ruby Tuasons Counter-Affidavits both dated 21 February 2014;
v. Gregoria G. Buenaventuras Counter-Affidavit dated 06 March
2014; and
vi. Philippine Daily Inquirer Online Edition news article entitled
"Benhur Luy upstages Napoles in Senate Hearing" by Norman
Bordadora and TJ Borgonio, published on 06 March 2014, none of
which were ever furnished Sen. Estrada prior to the issuance of the
challenged Joint Resolution, despite written request.

xxxx
II
THE OFFICE OF THE OMBUDSMAN, IN ISSUING THE CHALLENGED
JOINT RESOLUTION DATED 28 MARCH 2014 AND CHALLENGED JOINT
ORDER DATED 04 JUNE 2014, NOT ONLY ACTED WITHOUT OR IN
EXCESS OF ITS JURISDICTION OR WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION,
BUT ALSO VIOLATED SEN. ESTRADAS CONSTITUTIONAL RIGHT TO
DUE PROCESS OF LAW AND TO EQUAL PROTECTION OF THE LAWS.
xxxx
2.17 x x x x
Notably, in its Joint Order dated 07 May 2014, the Office of the Ombudsman
even arbitrarily limited the filing of Sen. Estradas comment to the voluminous
documents comprisingthe documents it furnished Sen. Estrada to a "nonextendible" period offive (5) days, making it virtually impossible for Sen.
Estrada to adequately study the charges leveled against him and intelligently
respond to them. The Joint Order also failed to disclose the existence of
other counter-affidavits and failed to furnish Sen. Estrada copies of such
counter-affidavits.51
Sen. Estrada has not been candid with this Court. His claim that the finding
of probable cause was the "sole issue" he raised before the Ombudsman in
his Motion for Reconsideration dated 7 April 2014 is obviously false.
Moreover, even though Sen. Estrada acknowledged his receipt of the
Ombudsmans 4 June 2014 Joint Order which denied his motion for
reconsideration of the 28 March 2014 Joint Resolution, Sen. Estrada did not
mention that the 4 June 2014 Joint Order stated that the Ombudsman "held
in abeyance the disposition of the motions for reconsideration in this
proceeding in light of its grant to [Sen. Estrada] a period of five days from
receipt of the 7 May 2014 [Joint] Order to formally respond to the
abovenamed co-respondents claims."
Sen. Estrada claims that his rights were violated but he flouts the rules
himself.
The rule against forum shopping is not limited tothe fulfillment of the
requisites of litis pendentia.52 To determine whether a party violated the rule
against forum shopping, the most important factor to ask is whether the
elements of litis pendentia are present, or whether a final judgment in one

case will amount to res judicatain another.53Undergirding the principle of litis


pendentia is the theory that a party isnot allowed to vex another more than
once regarding the same subject matter and for the same cause of action.
This theory is founded on the public policy that the same matter should not
be the subject of controversy in court more than once in order that possible
conflicting judgments may be avoided, for the sake of the stability in the
rights and status of persons.54
x x x [D]espite the fact that what the petitioners filed wasa petition for
certiorari, a recourse that in the usual course and because of its nature and
purpose is not covered by the rule on forum shopping. The exception from
the forum shopping rule, however, is true only where a petition for certiorari is
properly or regularly invoked in the usual course; the exception does not
apply when the relief sought, through a petition for certiorari, is still pending
with or has as yet to be decided by the respondent court, tribunal or body
exercising judicial or quasi-judicial body, e.g., a motion for reconsideration of
the order assailed via a petition for certiorari under Rule 65, as in the present
case. This conclusion is supported and strengthened by Section 1, Rule 65
of the Revised Rules of Court which provides that the availability of a remedy
in the ordinary course of law precludes the filing of a petition for certiorari;
under this rule, the petitions dismissal is the necessary consequence if
recourse to Rule 65 is prematurely taken.
To be sure, the simultaneous remedies the petitioners sought could result in
possible conflicting rulings, or at the very least, to complicated situations,
between the RTC and the Court of Appeals. An extreme possible result is for
the appellate court to confirm that the RTC decision is meritorious, yet the
RTC may at the same time reconsider its ruling and recall its order of
dismissal. In this eventuality, the result is the affirmation of the decision that
the court a quo has backtracked on. Other permutations depending on the
rulings of the two courts and the timing of these rulings are possible. In every
case, our justice system suffers as this kind of sharp practice opens the
system to the possibility of manipulation; to uncertainties when conflict of
rulings arise; and at least to vexation for complications other than conflict of
rulings. Thus, it matters not that ultimately the Court of Appeals may
completely agree with the RTC; what the rule on forum shopping addresses
are the possibility and the actuality of its harmful effects on our judicial
system.55
Sen. Estrada resorted to simultaneous remedies by filing this Petition
alleging violation of due process by the Ombudsman even as his Motion for
Reconsideration raising the very same issue remained pending with the
Ombudsman. This is plain and simple forum shopping, warranting outright
dismissal of this Petition.
SUMMARY

The Ombudsman, in furnishing Sen. Estrada a copy of the complaint and its
supporting affidavits and documents, fully complied with Sections 3 and 4 of
Rule 112 of the Revised Rules of Criminal Procedure, and Section 4, Rule II
of the Rules of Procedure of the Office of the Ombudsman, Administrative
Order No. 7. Both the Revised Rules of Criminal Procedure and the Rules of
Procedure of the Office of the Ombudsman require the investigating officer to
furnish the respondent with copies of the affidavits of the complainant and
affidavits of his supporting witnesses. Neither of these Rules require the
investigating officer to furnish the respondent with copies of the affidavits of
his co-respondents. The right of the respondent is only "to examine the
evidence submitted by the complainant," as expressly stated in Section 3(b),
Rule 112 of the Revised Rules of Criminal Procedure. This Court has
unequivocally ruled in Paderanga that "Section 3, Rule 112 of the Revised
Rules of Criminal Procedure expressly provides that the respondent shall
only have the right to submit a counter-affidavit, to examine all other
evidence submitted by the complainant and, where the fiscal sets a hearing
to propound clarificatory questions to the parties or their witnesses, to be
afforded an opportunity to be present but without the right to examine or
cross-examine." Moreover, Section 4 (a, b and c) of Rule II of the
Ombudsmans Rule of Procedure, read together, only require the
investigating officer to furnish the respondent with copies of the affidavits of
the complainant and his supporting witnesses.1wphi1 There is no law or
rule requiring the investigating officer to furnish the respondent with copies of
the affidavits of his co-respondents.
In the 7 May 2014 Joint Order, the Ombudsman went beyond legal duty and
even furnished Sen. Estrada with copies of the counter-affidavits of his corespondents whom he specifically named, as well as the counteraffidavits of
some of other co-respondents. In the 4 June 2014 Joint Order, the
Ombudsman even held in abeyancethe disposition of the motions for
reconsideration because the Ombudsman granted Sen. Estrada five days
from receipt of the 7 May 2014 Joint Order to formally respond to the claims
made by his co-respondents. The Ombudsman faithfully complied with the
existing Rules on preliminary investigation and even accommodated Sen.
Estrada beyond what the Rules required. Thus, the Ombudsman could not
be faulted with grave abuse of discretion. Since this is a Petition for Certiorari
under Rule 65, the Petition fails in the absence of grave abuse of discretion
on the part of the Ombudsman.
The constitutional due process requirements mandated in Ang Tibay, as
amplified in GSIS, are not applicable to preliminary investigations which are
creations of statutory law giving rise to mere statutory rights. A law can
abolish preliminary investigations without running afoul with the constitutional
requirements of dueprocess as prescribed in Ang Tibay, as amplified in
GSIS. The present procedures for preliminary investigations do not comply,
and were never intended to comply, with Ang Tibay, as amplified in GSIS.

Preliminary investigations do not adjudicate with finality rights and obligations


of parties, while administrative investigations governed by Ang Tibay, as
amplified in GSIS, so adjudicate. Ang Tibay,as amplified in GSIS, requires
substantial evidencefor a decision against the respondent in the
administrative case.In preliminary investigations, only likelihood or probability
of guiltis required. To apply Ang Tibay,as amplified in GSIS,to preliminary
investigations will change the quantum of evidence required to establish
probable cause. The respondent in an administrative case governed by Ang
Tibay,as amplified in GSIS,has the right to an actual hearing and to crossexamine the witnesses against him. In preliminary investigations, the
respondent has no such rights.
Also, in an administrative case governed by Ang Tibay, as amplified in GSIS,
the hearing officer must be impartial and cannot be the fact-finder,
investigator, and hearing officer atthe same time. In preliminary
investigations, the same public officer may be the investigator and hearing
officer at the same time, or the fact-finder, investigator and hearing officer
may be under the control and supervisionof the same public officer, like the
Ombudsman or Secretary of Justice. This explains why Ang Tibay, as
amplified in GSIS, does not apply to preliminary investigations. To now
declare that the guidelines in Ang Tibay, as amplified in GSIS, are
fundamental and essential requirements in preliminary investigations will
render all past and present preliminary investigations invalid for violation of
constitutional due process. This will mean remanding for reinvestigation all
criminal cases now pending in all courts throughout the country. No
preliminary investigation can proceeduntil a new law designates a public
officer, outside of the prosecution service, to determine probable cause.
Moreover, those serving sentences by final judgment would have to be
released from prison because their conviction violated constitutional due
process. Sen. Estrada did not file a Motion for Reconsideration of the 27
March 2014 Order in OMB-C-C-13-0313 denying his Request, which is the
subject of the present Petition. He should have filed a Motion for R
econsideration, in the same manner that he filed a Motion for
Reconsideration of the 15 May 2014 Order denying his motion to suspend
proceedings. The unquestioned rule in this jurisdiction is that certiorari will lie
only if there is no appeal or any other plain, speedy and adequate remedy in
the ordinary course of law against the acts of the public respondent. 56 The
plain, speedy and adequate remedy expressly provided by law is a Motion for
Reconsideration of the 27 March 2014 Order of the Ombudsman. Sen.
Estrada's failure to file a Motion for Reconsideration renders this Petition
premature.
Sen. Estrada also raised in this Petition the same issue he raised in his
Motion for Reconsideration of the 28 March 2014 Joint Resolution of the
Ombudsman finding probable cause. While his Motion for Reconsideration of
the 28 March 2014 Joint Resolution was pending, Sen. Estrada did not wait

for the resolution of the Ombudsman and instead proceeded to file the
present Petition for Certiorari. The Ombudsman issued a Joint Order on 4
June 2014 and specifically addressed the issue that Sen. Estrada is raising
in this Petition. Thus, Sen. Estrada's present Petition for Certiorari is not only
premature, it also constitutes forum shopping. WHEREFORE, we DISMISS
the Petition for Certiorari in G.R. Nos. 212140-41.

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above Decision had been reached in consultation before
the case was assigned to the writer of the opinion of the Court.
MARIA LOURDES P.A. SERENO
Chief Justice

SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
MARIA LOURDES P.A. SERENO
Chief Justice
PRESBITERO J. VELASCO,
JR.
Associate Justice

TERESITA J. LEONARDO-DE
CASTRO
Associate Justice

ARTURO D. BRION*
Associate Justice

DIOSDADO M. PERALTA
Associate Justice

Footnotes
* On official leave.
1

273 Phil. 290, 299 (1991). Emphasis supplied.

Under Rule 65 of the 1997 Rules of Civil Procedure.

OMB-C-C-13-0313 charges the following respondents:


1. Jose "Jinggoy" P. Ejercito Estrada, Senator of the
Republic of the Philippines;
2. Janet Lim Napoles, private respondent;

LUCAS P. BERSAMIN
Associate Justice

MARIANO C. DEL CASTILLO


Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

JOSE PORTUGAL PEREZ


Associate Justice

JOSE CATRAL MENDDOZA


Associate Justice

BIENVENIDO L. REYES
Associate Justice

ESTELA M. PERLASBERNABE
Associate Justice

MARVIC M.V.F. LEONEN


Associate Justice

FRANCIS H. JARDELEZA
Associate Justice
C E R TI F I CATI O N

3. Pauline Therese Mary C. Labayen, Deputy Chief of Staff,


Office of Sen. Estrada;
4. Ruby Tuason, private respondent;
5. Alan A. Javellana, President, National Agribusiness
Corporation (NABCOR);
6. Gondelina G. Amata, President, National Livelihood
Development Corporation (NLDC);
7. Antonio Y. Ortiz, Director General, Technology Resource
Center (TRC);
8. Mylene T. Encarnacion, private respondent, President,
Countrywide Agri and Rural Economic and Development
Foundation, Inc. (CARED);

9. John Raymund S. De Asis, private respondent, President,


Kaupdanan Para sa Mangunguma Foundation, Inc. (KPMFI);

1. Jose "Jinggoy" P. Ejercito Estrada, Senator of the


Republic of the Philippines;

10. Dennis L. Cunanan, Deputy Director General, TRC;

2. Pauline Therese Mary C. Labayen, Director IV/Deputy


Chief of Staff, Office of Sen. Estrada;

11. Victor Roman Cojamco Cacal, Paralegal, NABCOR;


3. Antonio Y. Ortiz, Director General, TRC;
12. Romulo M. Relevo, employee, NABCOR;
4. Alan Alunan Javellana, President, NABCOR;
13. Maria Ninez P. Guaizo, bookkeeper, officer-in-charge,
Accounting Division, NABCOR;

5. Victor Roman Cacal, Paralegal, NABCOR;

14. Ma. Julie Asor Villaralvo-Johnson, chief accountant,


NABCOR;

6. Maria Ninez P. Guaizo, bookkeeper, officer-in-charge,


Accounting Division, NABCOR;

15. Rhodora Butalad Mendoza, Director for Financial


Management Services and Vice President for Administration
and Finance, NABCOR;

7. Romulo M. Relevo, employee, NABCOR;


8. Ma. Julie Asor Villaralvo-Johnson, chief accountant,
NABCOR;

16. Gregoria G. Buenaventura, employee, NLDC;


9. Rhodora Butalad Mendoza, Director, NABCOR;
17. Alexis Gagni Sevidal, Director IV, NLDC;
10. Ma. Rosalinda Lacsamana, Director III, TRC;
18. Sofia Daing Cruz, Chief Financial
NLDC/Project Management Assistant IV, NLDC;

Specialist,
11. Marivic V. Jover, Accountant III, TRC;

19. Chita Chua Jalandoni, Department Manager III, NLDC;

12. Dennis L. Cunanan, Deputy Director General, TRC;

20. Francisco Baldoza Figura, employee, TRC;

13. Evelyn Sucgang, employee, NLDC;

21. Marivic V. Jover, chief accountant, TRC;

14. Chita Chua Jalandoni, Department Manager III, NLDC;

22. Mario L. Relampagos, Undersecretary for Operations,


Department of Budget and Management (DBM);

15. Emmanuel Alexis G. Sevidal, Director IV, NLDC;


16. Sofia D. Cruz, Chief Financial Specialist, NLDC; and

23-25. Rosario Nuez (aka Leah), Lalaine Paule (aka


Lalaine), Marilou Bare (Malou), employees at the Office of
the Undersecretary for Operations, DBM; and

17. Janet Lim Napoles, private respondent.


5

26. John and Jane Does


4

OMB-C-C-13-0397 charges the following respondents for Plunder


and Violation of Sec. 3(e) of RA 3019:

These were Tuason, Amata, Buenaventura, Sevidal, Cruz;


Sucgang, Javellana, Cacal, VillaralvoJohnson, Mendoza, Guaizo,
Cunanan, Jover, Figura, Nuez, Paule, Bare, and Relampagos.
6

Rollo, p. 745.

17

Id.

Manila Electric Company v. NLRC, et al.,G.R. No. L-60054, 2 July


1991, 198 SCRA 681, 682. Citations omitted.

Id. at 34-36. Signed by M.A. Christian O. Uy, Graft Investigation and


Prosecution Officer IV, Chairperson, Special Panel of Investigators
per Office Order No. 349, Series of 2013.

18

Webb v. Hon. De Leon, 317 Phil. 758 (1995).

19

Supra note 1, at 299-300.

Id. at 579-698. Approved and signed by Ombudsman Conchita


Carpio Morales; signed by M.A. Christian O. Uy, Graft Investigation
and Prosecution Officer IV, Chairperson, with Ruth Laura A. Mella,
Graft Investigation and Prosecution Officer II, Francisca M. Serfino,
Graft Investigation and Prosecution Officer II, Anna Francesca M.
Limbo, Graft Investigation and Prosecution Officer II, and Jasmine
Ann B. Gapatan, Graft Investigation and Prosecution Officer I, as
members of the Special Panel of Investigators per Office Order No.
349, Series of 2013.
10

11

12

13

Id. at 9.
Id. at 3.
Id. at 27-28.
Joint Order, OMB-C-C-13-0313 and OMB-C-C-13-0397, p. 20.

14

Id. at 769. Signed by Francis H. Jardeleza, Solicitor General (now


Associate Justice of this Court); Karl B. Miranda, Assistant Solicitor
General; Noel Cezar T. Segovia, Senior State Solicitor; Lester O.
Fiel, State Solicitor; Omar M. Diaz, State Solicitor; Michael Geronimo
R. Gomez, Associate Solicitor; Irene Marie P. Qua, Associate
Solicitor; Patrick Joseph S. Tapales, Associate Solicitor; Ronald John
B. Decano, Associate Solicitor; and Alexis Ian P. Dela Cruz, Attorney
II.
15

G.R. No. 170512, 5 October 2011, 658 SCRA 626.

16

Sec. 3, Rule V of the Rules of Procedure of the Office of the


Ombudsman reads:
Section 3. Rules of Court, application. In all matters not
covered by these rules, the Rules of Court shall apply in a
suppletory manner, or by analogy whenever practicable and
convenient.

20

http://www.ombudsman.gov.ph/docs/pressreleases/Senator
%20Estrada.pdf (last accessed 7 September 2014).
21

The citation for Ang Tibay is 69 Phil. 635 (1940).

22

Id. at 641-642.

23

Id. at 642-644. Citations omitted

24

357 Phil. 511 (1998).

25

Id. at 533.

26

See Ledesma v. Court of Appeals, 344 Phil. 207 (1997). See also
United States v. Grant and Kennedy,18 Phil. 122 (1910).
27

Webb v. Hon. De Leon, supra note 18, at 789. Emphasis supplied.

28

Lozada v. Hernandez, etc., et al., 92 Phil. 1051, 1053 (1953).

29

71 Phil. 216 (1941).

30

In all criminal prosecutions, the accused shall be presumed


innocent until the contrary is proved, and shall enjoy the right to be
heard by himself and counsel, to be informed of the nature and
cause of the accusation against him, to have a speedy, impartial, and
public trial, to meet the witnesses face to face, and to have
compulsory process to secure the attendance of witnesses and the
production of evidence in his behalf. However, after arraignment, trial
may proceed notwithstanding the absence of the accused provided
that he has been duly notified and his failure to appear is
unjustifiable.
31

Crespo v. Judge Mogul, 235 Phil. 465 (1987).

32

Marias v. Hon. Siochi, etc., et al.,191 Phil. 698, 718 (1981).

33

See Dequito v. Arellano, 81 Phil. 128, 130 (1948), citing 32 CJS


456.

interests of the Government or of the petitioner or the subject


matter of the action is perishable;

34

(d) where, under the circumstances,


reconsideration would be useless;

Bustos v. Lucero, 81 Phil. 640, 644 (1948).

motion

for

35

The Fourth Amendment of the United States Constitution reads:


"The right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue, but upon probable
cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized."
See also Ocampo v. United States, 234 U.S. 91 (1914).
36

(e) where petitioner was deprived of due process and there


is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is
urgent and the granting of such relief by the trial Court is
improbable;

Brinegar v. United States, 338 U.S. 160, 175-176 (1949).

(g) where the proceedings in the lower court are a nullity for
lack of due process;

37

G.R. No. 179367, 29 January 2014, 715 SCRA 36, 49-50. Citations
omitted.
38

(h) where the proceedings was ex parteor in which the


petitioner had no opportunity to object; and

380 U.S. 102, 107-108 (1965).


(i) where the issue raised is one purely of law or where
public interest is involved. (Citations omitted)

39

See People v. Delos Santos, 386 Phil. 121 (2000). See also
People v. Garcia, 346 Phil. 475 (1997).
42
40

People v. Gallo, 374 Phil. 59 (1999). See also Echegaray v.


Secretary of Justice, 361 Phil. 73 (1999); Bachrach Corporation v.
Court of Appeals, 357 Phil. 483 (1998); Lee v. De Guzman, G.R. No.
90926, 187 SCRA 276, 6 July 1990; Philippine Veterans Bank v.
Intermediate Appellate Court, 258-A Phil. 424 (1989); Sps. Lipana v.
Development Bank of Rizal, 238 Phil. 246 (1987); Candelario v.
Caizares, 114 Phil. 672 (1962).
41

As enumerated in Tan v. CA, 341 Phil. 570, 576-578 (1997), the


exceptions are:
(a) where the order is a patent nullity, as where the Court a
quohad no jurisdiction;

Delos Reyes v. Flores, 628 Phil. 170 (2010); Cervantes v. Court of


Appeals, 512 Phil. 210 (2005); Flores v. Sangguniang Panlalawigan
of Pampanga, 492 Phil. 377 (2005). See also Bokingo v. Court of
Appeals, 523 Phil. 186 (2006); Yao v. Perello, 460 Phil. 658 (2003).
43

587 Phil. 100 (2008).

44

G.R. No. 170512, 5 October 2011, 658 SCRA 626.

45

Supra note 43, at 113-116. Emphases in the original; citations


omitted.
46

242 Phil. 563 (1988).

47

(b) where the questions raised in the certiorari proceeding


have been duly raised and passed uponby the lower court,
or are the same as those raised and passed upon in the
lower court;

352 Phil. 557 (1998).

48

Supra note 46, at 576.

49

Rollo, p. 30.

(c) where there is an urgent necessity for the resolution of


the question and any further delay would prejudice the

50

Id. at 789-791.

51

Petition for Certiorari, G.R. Nos. 212761-62, 20 June 2014, pp. 910, 13, 53.
52

For litis pendencia to lie, the following requisites must be satisfied:


1. Identity of parties or representation in both cases;
2. Identity of rights asserted and relief prayed for;
3. The relief must be founded on the same facts and the
same basis; and
4. Identity of the two preceding particulars should be such
that any judgment, which may be rendered in the other
action, will, regardless of which party is successful, amount
to res judicata on the action under consideration. Sherwill
Development Corporation v. Sitio Sto. Nio Residents
Association, Inc., 500 Phil. 288, 301 (2005), citing Sps.
Tirona v. Alejo, 419 Phil. 285 (2001), further citing Tourist
Duty Free Shops, Inc. v. Sandiganbayan, 380 Phil. 328
(2000).

53

Madara v. Perello, 584 Phil. 613, 629 (2008).

54

Sps. Tirona v. Alejo, 419 Phil. 285, 303 (2001).

55

Supra note 53, at 629-630. Boldfacing supplied; italicization in the


original.
56

Interorient Maritime Enterprises, Inc. v. NLRC, 330 Phil. 493, 502


(1996).

After petitioner posted a P40,000 cash bond which the trial court
approved,6 he was released from detention, and his arraignment was set on
January 24, 2007.
The private complainants-heirs of De las Alas filed, with the conformity of the
public prosecutor, an Urgent Omnibus Motion 7 praying, inter alia, for the
deferment of the proceedings to allow the public prosecutor to re-examine
the evidence on record or to conduct a reinvestigation to determine the
proper offense.

Republic of the Philippines


SUPREME COURT
Manila

The RTC thereafter issued the (1) Order of January 24, 2007 8 deferring
petitioners arraignment and allowing the prosecution to conduct a
reinvestigation to determine the proper offense and submit a
recommendation within 30 days from its inception, inter alia; and (2) Order of
January 31, 20079 denying reconsideration of the first order. Petitioner
assailed these orders via certiorari and prohibition before the Court of
Appeals.

THIRD DIVISION
G.R. No. 182677

August 3, 2010

JOSE ANTONIO C. LEVISTE, Petitioner,


vs.
HON. ELMO M. ALAMEDA, HON. RAUL M. GONZALEZ, HON.
EMMANUEL Y. VELASCO, HEIRS OF THE LATE RAFAEL DE LAS
ALAS, Respondents.
DECISION
CARPIO MORALES, J.:
Jose Antonio C. Leviste (petitioner) assails via the present petition for review
filed on May 30, 2008 the August 30, 2007 Decision 1 and the April 18, 2008
Resolution2 of the Court of Appeals in CA-G.R. SP No. 97761 that affirmed
the trial courts Orders of January 24, 31, February 7, 8, all in 2007, and
denied the motion for reconsideration, respectively.
Petitioner was, by Information3 of January 16, 2007, charged with homicide
for the death of Rafael de las Alas on January 12, 2007 before the Regional
Trial Court (RTC) of Makati City. Branch 150 to which the case was raffled,
presided by Judge Elmo Alameda, forthwith issued a commitment
order4 against petitioner who was placed under police custody while confined
at the Makati Medical Center.5

Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion


before the trial court to defer acting on the public prosecutors
recommendation on the proper offense until after the appellate court resolves
his application for injunctive reliefs, or alternatively, to grant him time to
comment on the prosecutors recommendation and thereafter set a hearing
for the judicial determination of probable cause. 10 Petitioner also separately
moved for the inhibition of Judge Alameda with prayer to defer action on the
admission of the Amended Information.11
The trial court nonetheless issued the other assailed orders, viz: (1) Order of
February 7, 200712 that admitted the Amended Information 13 for murder and
directed the issuance of a warrant of arrest; and (2) Order of February 8,
200714 which set the arraignment on February 13, 2007. Petitioner
questioned these two orders via supplemental petition before the appellate
court.
The appellate court dismissed petitioners petition, hence, his present
petition, arguing that:
PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE THE
REINVESTIGATION OF THE CRIMINAL CASE BELOW WHEN THE
CRIMINAL INFORMATION HAD ALREADY BEEN FILED WITH THE
LOWER COURT. HENCE, THE COURT OF APPEALS COMMITTED A
GRAVE ERROR IN FINDING THAT RESPONDENT JUDGE DID NOT ACT
WITH GRAVE ABUSE OF DISCRETION IN GRANTING SUCH
REINVESTIGATION DESPITE HAVING NO BASIS IN THE RULES OF
COURT[;]

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN


ADMITTING
STATE
PROSECUTOR
VELASCOS
AMENDED
INFORMATION, ISSUING A WARRANT OF ARREST, AND SETTING THE
CASE BELOW FOR ARRAIGNMENT, CONSIDERING THAT THE VALIDITY
AND LEGALITY OF HIS ORDERS DATED 24 AND 31 JANUARY 2007,
WHICH LED TO THE QUESTIONABLE REINVESTIGATION AND ILLEGAL
AMENDED INFORMATION[,] ARE YET TO BE RESOLVED BY THIS
HONORABLE COURT (sic); [AND]
CONSIDERING THAT PROSECUTOR VELASCOS FINDINGS IN HIS
RESOLUTION DATED 2 FEBRUARY 2007 ARE BLATANTLY BASED ON
MERE SPECULATIONS AND CONJECTURES, WITHOUT ANY
SUBSTANTIAL OR MATERIAL NEW EVIDENCE BEING ADDUCED
DURING THE REINVESTIGATION, RESPONDENT JUDGE SHOULD HAVE
AT LEAST ALLOWED PETITIONERS MOTION FOR A HEARING FOR
JUDICIAL DETERMINATION OF PROBABLE CAUSE. 15 (emphasis in the
original omitted)
Records show that the arraignment scheduled on March 21, 2007 pushed
through during which petitioner refused to plead, drawing the trial court to
enter a plea of "not guilty" for him.
Prior thereto or on February 23, 2007, petitioner filed an Urgent Application
for Admission to Bail Ex Abundanti Cautela 16 which the trial court, after
hearings thereon, granted by Order of May 21, 2007, 17 it finding that the
evidence of guilt for the crime of murder is not strong. It accordingly allowed
petitioner to post bail in the amount ofP300,000 for his provisional liberty.
The trial court, absent any writ of preliminary injunction from the appellate
court, went on to try petitioner under the Amended Information. By Decision
of January 14, 2009, the trial court found petitioner guilty of homicide,
sentencing him to suffer an indeterminate penalty of six years and one day of
prision mayor as minimum to 12 years and one day of reclusion temporal as
maximum. From the Decision, petitioner filed an appeal to the appellate
court, docketed as CA-G.R. CR No. 32159, during the pendency of which he
filed an urgent application for admission to bail pending appeal. The
appellate court denied petitioners application which this Court, in G.R. No.
189122, affirmed by Decision of March 17, 2010.
The Office of the Solicitor General (OSG) later argued that the present
petition had been rendered moot since the presentation of evidence, wherein
petitioner actively participated, had been concluded.18

Waiver on the part of the accused must be distinguished from mootness of


the petition, for in the present case, petitioner did not, by his active
participation in the trial, waive his stated objections.
Section 26, Rule 114 of the Rules of Court provides:
SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular
preliminary investigation. An application for or admission to bail shall not
bar the accused from challenging the validity of his arrest or the legality of
the warrant issued therefor, or from assailing the regularity or questioning the
absence of a preliminary investigation of the charge against him, provided
that he raises them before entering his plea. The court shall resolve the
matter as early as practicable but not later than the start of the trial of the
case.
By applying for bail, petitioner did not waive his right to challenge the
regularity of the reinvestigation of the charge against him, the validity of the
admission of the Amended Information, and the legality of his arrest under
the Amended Information, as he vigorously raised them prior to his
arraignment. During the arraignment on March 21, 2007, petitioner refused to
enter his plea since the issues he raised were still pending resolution by the
appellate court, thus prompting the trial court to enter a plea of "not guilty" for
him.
The principle that the accused is precluded after arraignment from
questioning the illegal arrest or the lack of or irregular preliminary
investigation applies "only if he voluntarily enters his plea and participates
during trial, without previously invoking his objections thereto."19 There must
be clear and convincing proof that petitioner had an actual intention to
relinquish his right to question the existence of probable cause. When the
only proof of intention rests on what a party does, his act should be so
manifestly consistent with, and indicative of, an intent to voluntarily and
unequivocally relinquish the particular right that no other explanation of his
conduct is possible.20
From the given circumstances, the Court cannot reasonably infer a valid
waiver on the part of petitioner to preclude him from obtaining a definite
resolution of the objections he so timely invoked. Other than its allegation of
active participation, the OSG offered no clear and convincing proof that
petitioners participation in the trial was unconditional with the intent to
voluntarily and unequivocally abandon his petition. In fact, on January 26,
2010, petitioner still moved for the early resolution of the present petition. 21
Whatever delay arising from petitioners availment of remedies against the
trial courts Orders cannot be imputed to petitioner to operate as a valid

waiver on his part. Neither can the non-issuance of a writ of preliminary


injunction be deemed as a voluntary relinquishment of petitioners principal
prayer. The non-issuance of such injunctive relief only means that the
appellate court did not preliminarily find any exception 22 to the long-standing
doctrine that injunction will not lie to enjoin a criminal
prosecution.23 Consequently, the trial of the case took its course.
The petition is now moot, however, in view of the trial courts rendition of
judgment.
A moot and academic case is one that ceases to present a justiciable
controversy by virtue of supervening events, so that a declaration thereon
would be of no practical use or value.24
The judgment convicting petitioner of homicide under the Amended
Information for murder operates as a supervening event that mooted the
present petition. Assuming that there is ground 25 to annul the finding of
probable cause for murder, there is no practical use or value in abrogating
the concluded proceedings and retrying the case under the original
Information for homicide just to arrive, more likely or even definitely, at the
same conviction of homicide. Mootness would have also set in had petitioner
been convicted of murder, for proof beyond reasonable doubt, which is much
higher than probable cause, would have been established in that instance.
Instead, however, of denying the petition outright on the ground of mootness,
the Court proceeds to resolve the legal issues in order to formulate
controlling principles to guide the bench, bar and public. 26 In the present
case, there is compelling reason to clarify the remedies available before and
after the filing of an information in cases subject of inquest.
After going over into the substance of the petition and the assailed
issuances, the Court finds no reversible error on the part of the appellate
court in finding no grave abuse of discretion in the issuance of the four trial
court Orders.
In his first assignment of error, petitioner posits that the prosecution has no
right under the Rules to seek from the trial court an investigation or
reevaluation of the case except through a petition for review before the
Department of Justice (DOJ). In cases when an accused is arrested without
a warrant, petitioner contends that the remedy of preliminary investigation
belongs only to the accused.
The contention lacks merit.
Section 6,27 Rule 112 of the Rules of Court reads:

When a person is lawfully arrested without a warrant involving an offense


which requires a preliminary investigation, the complaint or information may
be filed by a prosecutor without need of such investigation provided an
inquest has been conducted in accordance with existing rules. In the
absence or unavailability of an inquest prosecutor, the complaint may be filed
by the offended party or a peace officer directly with the proper court on the
basis of the affidavit of the offended party or arresting officer or person.
Before the complaint or information is filed, the person arrested may ask for a
preliminary investigation in accordance with this Rule, but he must sign a
waiver of the provisions of Article 125 of the Revised Penal Code, as
amended, in the presence of his counsel. Notwithstanding the waiver, he
may apply for bail and the investigation must be terminated within fifteen (15)
days from its inception.
After the filing of the complaint or information in court without a preliminary
investigation, the accused may, within five (5) days from the time he learns of
its filing, ask for a preliminary investigation with the same right to adduce
evidence in his defense as provided in this Rule. (underscoring supplied)
A preliminary investigation is required before the filing of a complaint or
information for an offense where the penalty prescribed by law is at least four
years, two months and one day without regard to fine. 28 As an exception, the
rules provide that there is no need for a preliminary investigation in cases of
a lawful arrest without a warrant 29involving such type of offense, so long as
an inquest, where available, has been conducted.30
Inquest is defined as an informal and summary investigation conducted by a
public prosecutor in criminal cases involving persons arrested and detained
without the benefit of a warrant of arrest issued by the court for the purpose
of determining whether said persons should remain under custody and
correspondingly be charged in court.31
It is imperative to first take a closer look at the predicament of both the
arrested person and the private complainant during the brief period of
inquest, to grasp the respective remedies available to them before and after
the filing of a complaint or information in court.
BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the
private complainant may proceed in coordinating with the arresting officer
and the inquest officer during the latters conduct of inquest. Meanwhile, the
arrested person has the option to avail of a 15-day preliminary investigation,
provided he duly signs a waiver of any objection against delay in his delivery
to the proper judicial authorities under Article 125 of the Revised Penal Code.
For obvious reasons, this remedy is not available to the private complainant

since he cannot waive what he does not have. The benefit of the provisions
of Article 125, which requires the filing of a complaint or information with the
proper judicial authorities within the applicable period, 32 belongs to the
arrested person.
The accelerated process of inquest, owing to its summary nature and the
attendant risk of running against Article 125, ends with either the prompt filing
of an information in court or the immediate release of the arrested
person.33Notably, the rules on inquest do not provide for a motion for
reconsideration.34
Contrary to petitioners position that private complainant should have
appealed to the DOJ Secretary, such remedy is not immediately available in
cases subject of inquest.
Noteworthy is the proviso that the appeal to the DOJ Secretary is by "petition
by a proper party under such rulesas the Department of Justice may
prescribe."35 The rule referred to is the 2000 National Prosecution Service
Rule on Appeal,36 Section 1 of which provides that the Rule shall "apply to
appeals from resolutions x x x in cases subject of preliminary investigation/
reinvestigation." In cases subject of inquest, therefore, the private party
should first avail of a preliminary investigation or reinvestigation, if any,
before elevating the matter to the DOJ Secretary.
In case the inquest proceedings yield no probable cause, the private
complainant may pursue the case through the regular course of a preliminary
investigation.
ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules yet
provide the accused with another opportunity to ask for a preliminary
investigation within five days from the time he learns of its filing. The Rules of
Court and the New Rules on Inquest are silent, however, on whether the
private complainant could invoke, as respondent heirs of the victim did in the
present case, a similar right to ask for a reinvestigation.
The Court holds that the private complainant can move for reinvestigation,
subject to and in light of the ensuing disquisition.
All criminal actions commenced by a complaint or information shall be
prosecuted under the direction and control of the public prosecutor.37 The
private complainant in a criminal case is merely a witness and not a party to
the case and cannot, by himself, ask for the reinvestigation of the case after
the information had been filed in court, the proper party for that being the
public prosecutor who has the control of the prosecution of the case. 38 Thus,
in cases where the private complainant is allowed to intervene by counsel in

the criminal action,39 and is granted the authority to prosecute, 40 the private
complainant, by counsel and with the conformity of the public prosecutor, can
file a motion for reinvestigation.
In fact, the DOJ instructs that before the arraignment of the accused, trial
prosecutors must "examine the Information vis--vis the resolution of the
investigating prosecutor in order to make the necessary corrections or
revisions and to ensure that the information is sufficient in form and
substance."41
x x x Since no evidence has been presented at that stage, the error would
appear or be discoverable from a review of the records of the preliminary
investigation. Of course, that fact may be perceived by the trial judge himself
but, again, realistically it will be the prosecutor who can initially
determine the same. That is why such error need not be manifest or
evident, nor is it required that such nuances as offenses includible in the
offense charged be taken into account. It necessarily follows, therefore,
that the
prosecutor
can
and
should
institute
remedial
measures[.]42 (emphasis and underscoring supplied)
The prosecution of crimes appertains to the executive department of the
government whose principal power and responsibility is to see that our laws
are faithfully executed. A necessary component of this power to execute our
laws is the right to prosecute their violators. The right to prosecute vests the
prosecutor with a wide range of discretion the discretion of what and whom
to charge, the exercise of which depends on a smorgasbord of factors which
are best appreciated by prosecutors.43
The prosecutions discretion is not boundless or infinite, however.44 The
standing principle is that once an information is filed in court, any remedial
measure such as a reinvestigation must be addressed to the sound
discretion of the court. Interestingly, petitioner supports this view.45 Indeed,
the Court ruled in one case that:
The rule is now well settled that once a complaint or information is filed in
court, any disposition of the case, whether as to its dismissal or the
conviction or the acquittal of the accused, rests in the sound discretion of the
court. Although the prosecutor retains the direction and control of the
prosecution of criminal cases even when the case is already in court, he
cannot impose his opinion upon the tribunal. For while it is true that the
prosecutor has the quasi-judicial discretion to determine whether or not a
criminal case should be filed in court, once the case had already been
brought therein any disposition the prosecutor may deem proper thereafter

should be addressed to the court for its consideration and approval. The only
qualification is that the action of the court must not impair the substantial
rights of the accused or the right of the People to due process of law.

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. (emphasis supplied)

xxxx
In such an instance, before a re-investigation of the case may be conducted
by the public prosecutor, the permission or consent of the court must be
secured. If after such re-investigation the prosecution finds a cogent basis to
withdraw the information or otherwise cause the dismissal of the case, such
proposed course of action may be taken but shall likewise be addressed to
the sound discretion of the court.46 (underscoring supplied)
While Abugotal v. Judge Tiro47 held that to ferret out the truth, a trial is to be
preferred to a reinvestigation, the Court therein recognized that a trial court
may, where the interest of justice so requires, grant a motion for
reinvestigation of a criminal case pending before it.

In fine, before the accused enters a plea, a formal or substantial amendment


of the complaint or information may be made without leave of court. 49 After
the entry of a plea, only a formal amendment may be made but with leave of
court and only if it does not prejudice the rights of the accused. After
arraignment, a substantial amendment is proscribed except if the same is
beneficial to the accused.50
It must be clarified though that not all defects in an information are curable by
amendment prior to entry of plea. An information which is void ab
initio cannot be amended to obviate a ground for quashal. 51 An amendment
which operates to vest jurisdiction upon the trial court is likewise
impermissible.52

Once the trial court grants the prosecutions motion for reinvestigation, the
former is deemed to have deferred to the authority of the prosecutorial arm of
the Government. Having brought the case back to the drawing board, the
prosecution is thus equipped with discretion wide and far reaching
regarding the disposition thereof, 48 subject to the trial courts approval of the
resulting proposed course of action.

Considering the general rule that an information may be amended even in


substance and even without leave of court at any time before entry of plea,
does it mean that the conduct of a reinvestigation at that stage is a mere
superfluity?

Since a reinvestigation may entail a modification of the criminal information


as what happened in the present case, the Courts holding is bolstered by the
rule on amendment of an information under Section 14, Rule 110 of the
Rules of Court:

Any remedial measure springing from the reinvestigation be it a complete


disposition or an intermediate modification53 of the charge is eventually
addressed to the sound discretion of the trial court, which must make an
independent evaluation or assessment of the merits of the case. Since the
trial court would ultimately make the determination on the proposed course of
action, it is for the prosecution to consider whether a reinvestigation is
necessary to adduce and review the evidence for purposes of buttressing the
appropriate motion to be filed in court.

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.

It is not.

However, any amendment before plea, which downgrades the nature of the
offense charged in or excludes any accused from the complaint or
information, can be made only upon motion by the prosecutor, with notice to
the offended party and with leave of court. The court shall state its reasons in
resolving the motion and copies of its order shall be furnished all parties,
especially the offended party.

More importantly, reinvestigation is required in cases involving a substantial


amendment of the information. Due process of law demands that no
substantial amendment of an information may be admitted without
conducting another or a new preliminary investigation. In Matalam v. The 2nd
Division of the Sandiganbayan,54 the Court ruled that a substantial
amendment in an information entitles an accused to another preliminary
investigation, unless the amended information contains a charge related to or
is included in the original Information.

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

The question to be resolved is whether the amendment of the Information


from homicide to murder is considered a substantial amendment, which

would make it not just a right but a duty of the prosecution to ask for a
preliminary investigation.

merely clarificatory, the amendment essentially varies the prosecutions


original theory of the case and certainly affects not just the form but the
weight of defense to be mustered by petitioner.

The Court answers in the affirmative.


A substantial amendment consists of the recital of facts constituting
the offense charged and determinative of the jurisdiction of the
court. All other matters are merely of form. The following have been held to
be mere formal amendments: (1) new allegations which relate only to the
range of the penalty that the court might impose in the event of conviction;
(2) an amendment which does not charge another offense different or
distinct from that charged in the original one; (3) additional allegations
which do not alter the prosecutions theory of the case so as to cause
surprise to the accused and affect the form of defense he has or will assume;
(4) an amendment which does not adversely affect any substantial right of
the accused; and (5) an amendment that merely adds specifications to
eliminate vagueness in the information and not to introduce new and material
facts, and merely states with additional precision something which is already
contained in the original information and which adds nothing essential for
conviction for the crime charged.
The test as to whether a defendant is prejudiced by the amendment is
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. An amendment to an information which does not change the
nature of the crime alleged therein 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.55 (emphasis and underscoring supplied)
Matalam adds that the mere fact that the two charges are related does not
necessarily or automatically deprive the accused of his right to another
preliminary investigation. Notatu dignum is the fact that both the original
Information and the amended Information in Matalam were similarly charging
the accused with violation of Section 3(e) of the Anti-Graft and Corrupt
Practices Act.
In one case,56 it was squarely held that the amendment of the Information
from homicide to murder is "one of substance with very serious
consequences."57 The amendment involved in the present case consists of
additional averments of the circumstances of treachery, evident
premeditation, and cruelty, which qualify the offense charged from homicide
to murder. It being a new and material element of the offense, petitioner
should be given the chance to adduce evidence on the matter. Not being

The Court distinguishes the factual milieus in Buhat v. CA58 and Pacoy v.
Cajigal,59 wherein the amendment of the caption of the Information from
homicide to murder was not considered substantial because there was no
real change in the recital of facts constituting the offense charged as alleged
in the body of the Information, as the allegations of qualifying circumstances
were already clearly embedded in the original Information. Buhat pointed out
that the original Information for homicide already alleged the use of superior
strength, while Pacoy states that the averments in the amended Information
for murder are exactly the same as those already alleged in the original
Information for homicide. None of these peculiar circumstances obtains in the
present case.
Considering that another or a new preliminary investigation is required, the
fact that what was conducted in the present case was a reinvestigation does
not invalidate the substantial amendment of the Information. There is no
substantial distinction between a preliminary investigation and a
reinvestigation since both are conducted in the same manner and for the
same objective of determining whether there exists sufficient ground to
engender a well-founded belief that a crime has been committed and the
respondent is probably guilty thereof and should be held for trial. 60 What is
essential is that petitioner was placed on guard to defend himself from the
charge of murder61after the claimed circumstances were made known to him
as early as the first motion.
Petitioner did not, however, make much of the opportunity to present
countervailing evidence on the proposed amended charge. Despite notice of
hearing, petitioner opted to merely observe the proceedings and declined to
actively
participate,
even
with
extreme
caution,
in
the
reinvestigation. Mercado v. Court of Appeals states that the rules do not even
require, as a condition sine qua non to the validity of a preliminary
investigation, the presence of the respondent as long as efforts to reach him
were made and an opportunity to controvert the complainants evidence was
accorded him.62
In his second assignment of error, petitioner basically assails the hurried
issuance of the last two assailed RTC Orders despite the pendency before
the appellate court of the petition for certiorari challenging the first two trial
court Orders allowing a reinvestigation.
The Rules categorically state that the petition shall not interrupt the course of
the principal case unless a temporary retraining order or a writ of preliminary

injunction has been issued. 63 The appellate court, by Resolution of February


15, 2007,64 denied petitioners application for a temporary restraining order
and writ of preliminary injunction. Supplementary efforts to seek injunctive
reliefs proved futile.65 The appellate court thus did not err in finding no grave
abuse of discretion on the part of the trial court when it proceeded with the
case and eventually arraigned the accused on March 21, 2007, there being
no injunction order from the appellate court. Moreover, petitioner opted to
forego appealing to the DOJ Secretary, a post-inquest remedy that was
available after the reinvestigation and which could have suspended the
arraignment.661avvphi1
Regarding petitioners protestations of haste, suffice to state that the pace in
resolving incidents of the case is not per se an indication of bias. In SantosConcio v. Department of Justice,67 the Court held:
Speed in the conduct of proceedings by a judicial or quasi-judicial officer
cannot per se be instantly attributed to an injudicious performance of
functions. For ones prompt dispatch may be anothers undue haste. The
orderly administration of justice remains as the paramount and constant
consideration, with particular regard of the circumstances peculiar to each
case.
The presumption of regularity includes the public officers official actuations
in all phases of work. Consistent with such presumption, it was incumbent
upon petitioners to present contradictory evidence other than a mere tallying
of days or numerical calculation. This, petitioners failed to discharge. The
swift completion of the Investigating Panels initial task cannot be relegated
as shoddy or shady without discounting the presumably regular performance
of not just one but five state prosecutors.68
There is no ground for petitioners protestations against the DOJ Secretarys
sudden designation of Senior State Prosecutor Emmanuel Velasco as Acting
City Prosecutor of Makati City for the present case 69 and the latters
conformity to the motion for reinvestigation.

maim and not to kill the victim, one bullet would have sufficed the DOJ
Secretary reportedly uttered that "the filing of the case of homicide against
ano against Leviste lintek naman eh I told you to watch over that case
there should be a report about the ballistics, about the paraffin, etc., then
thats not a complete investigation, thats why you should use that as a
ground" no abuse of discretion, much less a grave one, can be imputed to
it.
The statements of the DOJ Secretary do not evince a "determination to file
the Information even in the absence of probable cause." 73 On the contrary,
the remarks merely underscored the importance of securing basic
investigative reports to support a finding of probable cause. The original
Resolution even recognized that probable cause for the crime of murder
cannot be determined based on the evidence obtained "[u]nless and until a
more thorough investigation is conducted and eyewitness/es [is/]are
presented in evidence[.]"74
The trial court concluded that "the wound sustained by the victim at the back
of his head, the absence of paraffin test and ballistic examination, and the
handling of physical evidence," 75 as rationalized by the prosecution in its
motion, are sufficient circumstances that require further inquiry.
That the evidence of guilt was not strong as subsequently assessed in the
bail hearings does not affect the prior determination of probable cause
because, as the appellate court correctly stated, the standard of strong
evidence of guilt which is sufficient to deny bail to an accused is markedly
higher than the standard of judicial probable cause which is sufficient to
initiate a criminal case.76
In his third assignment of error, petitioner faults the trial court for not
conducting, at the very least, a hearing for judicial determination of probable
cause, considering the lack of substantial or material new evidence adduced
during the reinvestigation.
Petitioners argument is specious.

In granting the reinvestigation, Judge Alameda cannot choose the public


prosecutor who will conduct the reinvestigation or preliminary
investigation.70 There is a hierarchy of officials in the prosecutory arm of the
executive branch headed by the Secretary of Justice 71 who is vested with the
prerogative to appoint a special prosecutor or designate an acting prosecutor
to handle a particular case, which broad power of control has been
recognized by jurisprudence.72
As for the trial courts ignoring the DOJ Secretarys uncontested statements
to the media which aired his opinion that if the assailant merely intended to

There are two kinds of determination of probable cause: executive and


judicial. The executive determination of probable cause is one made during
preliminary investigation. It is a function that properly pertains to the public
prosecutor who is given a broad discretion to determine whether probable
cause exists and to charge those whom he believes to have committed the
crime as defined by law and thus should be held for trial. Otherwise stated,
such official has the quasi-judicial authority to determine whether or not a
criminal case must be filed in court. Whether that function has been correctly
discharged by the public prosecutor, i.e., whether he has made a correct

ascertainment of the existence of probable cause in a case, is a matter that


the trial court itself does not and may not be compelled to pass upon. 77
The judicial determination of probable cause is one made by the judge to
ascertain whether a warrant of arrest should be issued against the accused.
The judge must satisfy himself that based on the evidence submitted, there is
necessity for placing the accused under custody in order not to frustrate the
ends of justice. If the judge finds no probable cause, the judge cannot be
forced to issue the arrest warrant.78 Paragraph (a), Section 5,79 Rule 112 of
the Rules of Court outlines the procedure to be followed by the RTC.
To move the court to conduct a judicial determination of probable cause is a
mere superfluity, for with or without such motion, the judge is duty-bound to
personally evaluate the resolution of the public prosecutor and the supporting
evidence. In fact, the task of the presiding judge when the Information is filed
with the court is first andforemost to determine the existence or nonexistence of probable cause for the arrest of the accused. 80
What the Constitution underscores is the exclusive and personal
responsibility of the issuing judge to satisfy himself of the existence of
probable cause. But the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and
procedure, he shall (1) personally evaluate the report and the supporting
documents submitted by the prosecutor regarding the existence of probable
cause, and on the basis thereof, he may already make a personal
determination of the existence of probable cause; and (2) if he is not satisfied
that probable cause exists, he may disregard the prosecutors report and
require the submission of supporting affidavits of witnesses to aid him in
arriving at a conclusion as to the existence of probable cause. 81 (emphasis
and underscoring supplied)
The rules do not require cases to be set for hearing to determine probable
cause for the issuance of a warrant of arrest of the accused before any
warrant may be issued.82 Petitioner thus cannot, as a matter of right, insist on
a hearing for judicial determination of probable cause. Certainly, petitioner
"cannot determine beforehand how cursory or exhaustive the [judge's]
examination of the records should be [since t]he extent of the judges
examination depends on the exercise of his sound discretion as the
circumstances of the case require."83 In one case, the Court emphatically
stated:
The periods provided in the Revised Rules of Criminal Procedure
are mandatory, and as such, the judge must determine the presence or
absence of probable cause within such periods. The Sandiganbayans
determination of probable cause is made ex parte and is summary in nature,

not adversarial. The Judge should not be stymied and distracted from
his determination of probable cause by needless motions for
determination of probable cause filed by the accused.84 (emphasis and
underscoring supplied)
Petitioner proceeds to discuss at length evidentiary matters, arguing that no
circumstances exist that would qualify the crime from homicide to murder.
The allegation of lack of substantial or material new evidence deserves no
credence, because new pieces of evidence are not prerequisites for a valid
conduct of reinvestigation. It is not material that no new matter or evidence
was presented during the reinvestigation of the case. It should be stressed
that reinvestigation, as the word itself implies, is merely a repeat investigation
of the case. New matters or evidence are not prerequisites for a
reinvestigation, which is simply a chance for the prosecutor to review and reevaluate its findings and the evidence already submitted. 85
Moreover, under Rule 45 of the Rules of Court, only questions of law may be
raised in, and be subject of, a petition for review on certiorari since this Court
is not a trier of facts. The Court cannot thus review the evidence adduced by
the parties on the issue of the absence or presence of probable cause, as
there exists no exceptional circumstances to warrant a factual review.86
In a petition for certiorari, like that filed by petitioner before the appellate
court, the jurisdiction of the court is narrow in scope. It is limited to resolving
only errors of jurisdiction.1avvphi1 It is not to stray at will and resolve
questions and issues beyond its competence, such as an error of
judgment.87 The courts duty in the pertinent case is confined to determining
whether the executive and judicial determination of probable cause was done
without or in excess of jurisdiction or with grave abuse of discretion. Although
it is possible that error may be committed in the discharge of lawful functions,
this does not render the act amenable to correction and annulment by the
extraordinary remedy of certiorari, absent any showing of grave abuse of
discretion amounting to excess of jurisdiction.88
WHEREFORE, the petition is DENIED. The assailed Decision and
Resolution of the Court of Appeals in CA-G.R. SP No. 97761 are AFFIRMED.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
Chairperson
WE CONCUR:

ANTONIO EDUARDO B. NACHURA*


Associate Justice
LUCAS P. BERSAMIN
Associate Justice

ROBERTO A. ABAD**
Associate Justice

MARTIN S. VILLARAMA, JR.


Associate Justice

Id.at 84-87, penned by Justice Hakim S. Abdulwahid, with Justices


Rodrigo V. Cosico and Arturo G. Tayag concurring.
3

Id.at 90, signed by 2nd Assistant City Prosecutor Henry M. Salazar.


The concomitant Resolution was approved by Prosecutor IV Romulo
Nanola for Senior State Prosecutor Leo Dacera III, Officer-in-Charge.
4

Id.at 97.

ATTE S TATI O N

Id.at 88.

I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.

CA rollo, p. 58.

Rollo, pp. 101-107.

CONCHITA CARPIO MORALES


Associate Justice
Chairperson

Id.at 109-111.

Id.at 122-129.

C E R TI F I CATI O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, I certify that the conclusions in the above decision
had been reached in consultation before the case was assigned to the writer
of the opinion of the Courts Division.
RENATO C. CORONA
Chief Justice

Footnotes
*

Additional Member per Raffle dated July 1, 2010 in lieu of Associate


Justice Arturo D. Brion who inhibited.

10

Id.at 145-147.

11

Id.at 162-168.

12

Id.at 171-177.

13

Id.at 134-135, signed by Senior State Prosecutor Emmanuel Y.


Velasco in his capacity as the designated Acting City Prosecutor of
Makati City pro hac vice per Department Order No. 57 of January 22,
2007 (viderollo, p. 100).
14

Id.at 180.

15

Id.at 20-21.

16

Id.at 255-260.

17

Id.at 317-350.

18

Id.at 391-392.

**

Designated as Additional Member, per Special Order No. 843 (May


17, 2010), in view of the vacancy occasioned by the retirement of
Chief Justice Reynato S. Puno.
1

Rollo, pp. 56-82, penned by Justice Hakim S. Abdulwahid, with


Justices Rodrigo V. Cosico and Arturo G. Tayag concurring.

19

Borlongan, Jr. v. Pea, G.R. No. 143591, November 23, 2007, 538
SCRA 221, 229.

20

Okabe v. Hon. Gutierrez, 473 Phil. 758, 777 (2004).

21

Rollo, pp. 424-427.

on the basis of the affidavit of the offended party or arresting officer


or person.
31

22

In extreme cases, the following exceptions to the rule have been


recognized: (1) when the injunction is necessary to afford adequate
protection to the constitutional rights of the accused; (2) when it is
necessary for the orderly administration of justice or to avoid
oppression or multiplicity of actions; (3) when there is a prejudicial
question which is sub judice; (4) when the acts of the officer are
without or in excess of authority; (5) where the prosecution is under
an invalid law, ordinance or regulation; (6) when double jeopardy is
clearly apparent; (7) where the court has no jurisdiction over the
offense; (8) where it is a case of persecution rather than prosecution;
(9) where the charges are manifestly false and motivated by the lust
for vengeance; and (10) when there is clearly no prima facie case
against the accused and a motion to quash on that ground has been
denied. [Andres v. Justice Secretary Cuevas, 499 Phil. 36, 48-49
(2005)].
23

Asutilla v. PNB, 225 Phil. 40, 43 (1986), which explains that public
interest requires that criminal acts be immediately investigated and
prosecuted for the protection of society.

New Rules on Inquest, DOJ Department Circular No. 61


(September 21, 1993), Sec. 1.
32

Vide Soria v. Hon. Desierto, 490 Phil. 749 (2005).

33

New Rules on Inquest, DOJ Department Circular No. 61


(September 21, 1993), Secs. 13 & 15.
34

Unlike in a preliminary investigation, vide 2000 NPS Rule on


Appeal, DOJ Department Circular No. 70 (July 3, 2000), Sec. 3.
35

If upon petition by a proper party under such Rules as the


Department of Justice may prescribe x x x. (Rules of Court, Rule
112, sec. 4, last par.).
36

2000 NPS Rule on Appeal, DOJ Department Circular No. 70 (July


3, 2000).
37

Rules of Court, Rule 110, Sec. 5.

24

Integrated Bar of the Philippines v. Atienza, G.R. No. 175241,


February 24, 2010.

38

25

In exceptional cases, the Court took the extraordinary step of


annulling findings of probable cause (videBrocka v. Enrile, G.R. Nos.
69863-65, December 10, 1990, 192 SCRA 183, 188-189).

39

Rules of Court, Rule 110, Sec. 16.

40

Id.at Sec. 5, as amended by A.M. No. 02-2-07-SC (April 10, 2002).

26

41

Revised Manual for Prosecutors (2008), Part V, II(A)(1).

Atienza v. Villarosa, 497 Phil. 689, 699 (2005).

27

Vide People v. Marcelo, G.R. No. 105005, June 2, 1993, 223


SCRA 24, 39-40.

Formerly Sec. 7, as amended by A.M. No. 05-8-26-SC (August 30,


2005) effective October 3, 2005.

42

28

Rules of Court, Rule 112, Sec. 1.

43

29

Id., Rule 113, Sec. 5, pars. (a) & (b).

Galvez v. Court of Appeals, G.R. No. 114046, October 24, 1994,


237 SCRA 685, 701-702, et seq.
Soberano v. People, G.R. No. 154629, October 5, 2005, 472
SCRA 125, 139-140.
44

Id. at 140.

45

Vide rollo, p. 164.

46

Galvez v. Court of Appeals, supra at 698-699.

30

Id., Rule 112, Secs. 1 & 6, which also provides that in the absence
or unavailability of an inquest prosecutor, the complaint may be filed
by the offended party or a peace officer directly with the proper court

47

160 Phil. 884, 890 (1975).

56

Dionaldo v. Hon. Dacuycuy, etc., 195 Phil. 544 (1981).

48

Soberano v. People, supra at 140.

57

Id. at 545.

58

333 Phil. 562 (1996).

59

G.R. No. 157472, September 28, 2007, 534 SCRA 338.

60

People v. Hon. Navarro, 337 Phil. 122, 133 (1997).

49

Except those amendments that downgrade the nature of the


offense or exclude an accused from the charge as provided by
second paragraph of Section 14 of Rule 110, vide Soberano v.
People, supra.
50

Fronda-Baggao v. People, G.R. No. 151785, December 10, 2007,


539 SCRA 531, 535.
51

People v. Romualdez, G.R. No. 166510, April 29, 2009, 587 SCRA
123, 134, stated in response to the argument that the amendment of
an Information filed under an invalid or unauthorized preliminary
investigation could retroact to the time of its filing to thus defeat the
claim of prescription.

61

Matalam v. The 2nd Division of the Sandiganbayan, supra at 678,


citing People v. Magpale, 70 Phil. 176, 180 (1940).
62

Mercado v. CA, 315 Phil. 657, 662 (1995), which aims to forestall
attempts at thwarting criminal investigations by failing to appear or
employing dilatory tactics.
63

52

Agustin v. Pamintuan, G.R. No. 164938, August 2, 2005, 467


SCRA 601, 612, involving the substantial defect of failure to allege in
the Information for Libel the place either where the offended party
actual resided at the time the offense was committed or where the
libelous article was printed or first published.
53

Baltazar v. Chua, G.R. No. 177583, February 27, 2009, 580 SCRA
369, 377, where the Court stated:

Rules of Court, Rule 65, Sec. 7. The present provision, as


amended by A.M. No. 07-7-12-SC (December 4, 2007), even adds
that "[t]he public respondent shall proceed with the principal case
within ten (10) days from the filing of a petition for certiorari with a
higher court or tribunal, absent a temporary restraining order or a
preliminary injunction, or upon its expiration[, and that f]ailure of the
public respondent to proceed with the principal case may be a
ground for an administrative charge."
64

Considering that the trial court has the power and duty to look into
the propriety of the prosecutions motion to dismiss, with much more
reason is it for the trial court to evaluate and to make its own
appreciation and conclusion, whether the modification of the charges
and the dropping of one of the accused in the information, as
recommended by the Justice Secretary, is substantiated by
evidence. This should be the state of affairs, since the disposition of
the case such as its continuation or dismissal or exclusion of an
accused is reposed in the sound discretion of the trial court.
(underscoring supplied).
54

495 Phil. 664, 675-676 (2005).

CA rollo, pp. 126-127.

65

The appellate court deferred the resolution of the prayer for


injunctive reliefs contained in his Supplemental Petition until the
responsive pleadings had been filed (vide Resolution of February 27,
2007, id.at 216-217) and found that the resolution of such prayer was
closely related to and inextricably interwoven with the resolution of
the main case (vide Resolution of April 12, 2007, CA rollo, pp. 307308).
66

Rules of Court, Rule 116, Sec. 11.

67

G.R. No. 175057, January 29, 2008, 543 SCRA 70.

68

Id. at 89.

69

Rollo, p. 100.

55

Ricarze v. Court of Appeals, G.R. No. 160451, February 9, 2007,


515 SCRA 302, 315-316, citingMatalam v. The 2nd Division of the
Sandiganbayan, supra at 674-675.

70

Vide People v. Hon. Navarro, supra at 133, citing Abugotal v.


Judge Tiro, supra
71

83

Vide Mayor Abdula v. Hon. Guiani, 382 Phil. 757, 776 (2000).

84

Id. at 399.

Id. at 131.
85

72

Galvez v. Court of Appeals, supra at 710-711; Jalandoni v.


Secretary Drilon, 383 Phil. 855, 866-868 (2000).
73

Cf. Ladlad v. Velasco, G.R. Nos. 172070-72, June 1, 2007, 523


SCRA 318, 345.
74

75

76

Id.at 87.

Id. at 106.

79

Formerly Sec. 6, as amended by A.M. No. 05-8-26-SC (August 30,


2005) effective October 3, 2005, which reads:
(a) By the Regional Trial Court. Within ten (10) days from the filing
of the complaint or information, the judge shall personally evaluate
the resolution of the prosecutor and its supporting evidence. He may
immediately dismiss the case if the evidence on record clearly fails to
establish probable cause. If he finds probable cause, he shall issue a
warrant of arrest, or a commitment order when the complaint or
information was filed pursuant to section 6 of this Rule. In case of
doubt on the existence of probable cause, the judge may order the
prosecutor to present additional evidence within five (5) days from
notice and the issue must be resolved by the court within thirty (30)
days from the filing of the complaint or information.
80

Baltazar v. People, G.R. No. 174016, July 28, 2008, 560 SCRA
278, 293.

82

Chan v. Court of Appeals, 497 Phil. 41, 50 (2005).

87

Id. at 53.

88

D.M. Consunji, Inc. v. Esguerra, 328 Phil. 1168, 1185 (1996).

Id.at 126.

People v. Castillo, G.R. No. 171188, June 19, 2009, 590 SCRA 95,
105-106.

81

86

Rollo, p. 95.

77

78

Roxas v. Hon. Vasquez, 411 Phil. 276, 286-287 (2001); unless


otherwise required by law, vide MayorBalindong v. Court of Appeals,
488 Phil. 203, 212-213 (2004), citing Memorandum Circular No.
1266, in relation to Memorandum Circular No. 1294 of November 4,
1993.

Borlongan Jr. v. Pea, supra at 235.

Ramiscal, Jr. v. Sandiganbayan, G.R. Nos. 169727-28, August 18,


2006, 499 SCRA 375, 398.

The undersigned 2nd Assistant City Prosecutor accuses ATTY. JOSEJINA C.


FRIA of the crime of Viol. of Article 231 of the Revised Penal Code,
committed as follows:

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 183014

August 7, 2013

THE LAW FIRM OF CHAVEZ MIRANDA AND ASEOCHE, REPRESENTED


BY ITS FOUNDING PARTNER, FRANCISCO I. CHAVEZ, PETITIONER,
vs.
ATTY. JOSEJINA C. FRIA, RESPONDENT.

That on or about the 2nd day of February, 2006, or on dates subsequent


thereto, in the City of Muntinlupa, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, a public officer she being the
Branch Clerk of Court of the Regional Trial Court Branch 203, Muntinlupa
City, did then and there willfully, unlawfully and feloniously refused openly,
without any legal justification to obey the order of the said court which is of
superior authority, for the issuance of a writ of execution which is her
ministerial duty to do so in Civil Case No. 03-110 entitled Charles Bernard
Reyes, doing business under the name and style CBH Reyes Architects vs.
Spouses Cesar and Mely Esquig and Rosemarie Papas, which has become
final and executory since February 2, 2006, despite requests therefor, if only
to execute/enforce said decision dated July 29, 2005 rendered within the
scope of its jurisdiction and issued with all the legal formalities, to the
damage and prejudice of the plaintiff thereof.
Contrary to law.
Muntinlupa City, July 31, 2006.6
Based on the records, the undisputed facts are as follows:

DECISION
PERLAS-BERNABE, J.:
This is a direct recourse to the Court from the Regional Trial Court of
Muntinlupa City, Branch 276 (RTC), through a petition for review on
certiorari,1 raising a pure question of law. In particular, petitioner The Law
Firm of Chavez Miranda and Aseoche (The Law Firm) assails the
Resolution2 dated January 8, 2008 and Order 3 dated May 16, 2008 of the
RTC in S.C.A. Case No. 07-096, upholding the dismissal of Criminal Case
No. 46400 for lack of probable cause.
The Facts
On July 31, 2006, an Information 4 was filed against respondent Atty. Josejina
C. Fria (Atty. Fria), Branch Clerk of Court of the Regional Trial Court of
Muntinlupa City, Branch 203 (Branch 203), charging her for the crime of
Open Disobedience under Article 2315 of the Revised Penal Code (RPC).
The accusatory portion of the said information reads:

The Law Firm was engaged as counsel by the plaintiff in Civil Case No. 03110 instituted before Branch 203. 7 On July 29, 2005, judgment was rendered
in favor of the plaintiff (July 29, 2005 judgment), prompting the defendant in
the same case to appeal. However, Branch 203 disallowed the appeal and
consequently ordered that a writ of execution be issued to enforce the
foregoing judgment.8 Due to the denial of the defendants motion for
reconsideration, the July 29, 2005 judgment became final and executory. 9
In its Complaint-Affidavit10 dated February 12, 2006, The Law Firm alleged
that as early as April 4, 2006, it had been following up on the issuance of a
writ of execution to implement the July 29, 2005 judgment. However, Atty.
Fria vehemently refused to perform her ministerial duty of issuing said writ.
In her Counter-Affidavit11 dated June 13, 2006, Atty. Fria posited that the draft
writ of execution (draft writ) was not addressed to her but to Branch Sheriff
Jaime Felicen (Felicen), who was then on leave. Neither did she know who
the presiding judge would appoint as special sheriff on Felicens
behalf.12 Nevertheless, she maintained that she need not sign the draft writ
since on April 18, 2006, the presiding judge issued an Order stating that he
himself shall sign and issue the same.13

On July 31, 2006, the prosecutor issued a Memorandum 14 recommending,


inter alia, that Atty. Fria be indicted for the crime of Open Disobedience. The
corresponding Information was thereafter filed before the Metropolitan Trial
Court of Muntinlupa City, Branch 80 (MTC), docketed as Criminal Case No.
46400.

Criminal Case No. 46400 for lack of probable cause was "in full accord with
the law, facts, and jurisprudence."28
Aggrieved, The Law Firm filed a Motion for Reconsideration 29 which was
equally denied by the RTC in an Order 30dated May 16, 2008. Hence, the
instant petition.

The Proceedings Before the MTC


The Issue Before the Court
On September 4, 2006, Atty. Fria filed a Motion for Determination of Probable
Cause15 (motion) which The Law Firm opposed16 on the ground that the
Rules on Criminal Procedure do not empower trial courts to review the
prosecutors finding of probable cause and that such rules only give the trial
court judge the duty to determine whether or not a warrant of arrest should
be issued against the accused.
Pending resolution of her motion, Atty. Fria filed a Manifestation with
Motion17 dated November 17, 2006, stating that the Court had rendered a
Decision in the case of Reyes v. Balde II (Reyes) 18 an offshoot of Civil Case
No. 03-110 wherein it was held that Branch 203 had no jurisdiction over the
foregoing civil case.19 In response, The Law Firm filed its
Comment/Opposition,20 contending that Atty. Fria already committed the
crime of Open Disobedience 119 days before the Reyes ruling was rendered
and hence, she remains criminally liable for the afore-stated charge.
In an Omnibus Order21 dated January 25, 2007, the MTC ordered the
dismissal of Criminal Case No. 46400 for lack of probable cause. It found
that aside from the fact that Atty. Fria is a judicial officer, The Law Firm failed
to prove the existence of the other elements of the crime of Open
Disobedience.22 In particular, the second element of the crime, i.e., that there
is a judgment, decision, or order of a superior authority made within the
scope of its jurisdiction and issued with all legal formalities, unlikely existed
since the Court already declared as null and void the entire proceedings in
Civil Case No. 03-110 due to lack of jurisdiction. In this regard, the MTC
opined that such nullification worked retroactively to warrant the dismissal of
the case and/or acquittal of the accused at any stage of the proceedings. 23
Dissatisfied, The Law Firm moved for reconsideration 24 which was, however,
denied in a Resolution25 dated July 13, 2007. Accordingly, it elevated the
matter on certiorari.26
The RTC Ruling
In a Resolution27 dated January 8, 2008, the RTC affirmed the MTCs ruling,
finding no grave abuse of discretion on the latters part since its dismissal of

The essential issue in this case is whether or not the RTC erred in sustaining
the MTCs dismissal of the case for Open Disobedience against Atty. Fria,
i.e., Criminal Case No. 46400, for lack of probable cause.
The Courts Ruling
The petition is bereft of merit.
Under Section 5(a) of the Revised Rules of Criminal Procedure, a trial court
judge may immediately dismiss a criminal case if the evidence on record
clearly fails to establish probable cause, viz:
Sec. 5. When warrant of arrest may issue. (a) By the Regional Trial Court.
Within ten (10) days from the filing of the complaint or information, the
judge shall personally evaluate the resolution of the prosecutor and its
supporting evidence. He may immediately dismiss the case if the evidence
on record clearly fails to establish probable cause. If he finds probable cause,
he shall issue a warrant of arrest, or a commitment order if the accused has
already been arrested pursuant to a warrant issued by the judge who
conducted preliminary investigation or when the complaint or information was
filed pursuant to section 6 of this Rule. In case of doubt on the existence of
probable cause, the judge may order the prosecutor to present additional
evidence within five (5) days from notice and the issue must be resolved by
the court within thirty (30) days from the filing of the complaint of information.
(Emphasis and underscoring supplied)
It must, however, be observed that the judges power to immediately dismiss
a criminal case would only be warranted when the lack of probable cause is
clear. In De Los Santos-Dio v. CA,31 the Court illumined that a clear-cut case
of lack of probable cause exists when the records readily show
uncontroverted, and thus, established facts which unmistakably negate the
existence of the elements of the crime charged, viz:
While a judges determination of probable cause is generally confined to the
limited purpose of issuing arrest warrants, Section 5(a), Rule 112 of the
Revised Rules of Criminal Procedure explicitly states that a judge may

immediately dismiss a case if the evidence on record clearly fails to establish


probable cause x x x.

203 is further DIRECTED to dismiss Civil Case No. 03-110 for lack of
jurisdiction.33 (Emphasis and underscoring supplied)

In this regard, so as not to transgress the public prosecutors authority, it


must be stressed that the judges dismissal of a case must be done only in
clear-cut cases when the evidence on record plainly fails to establish
probable cause that is when the records readily show uncontroverted, and
thus, established facts which unmistakably negate the existence of the
elements of the crime charged. On the contrary, if the evidence on record
shows that, more likely than not, the crime charged has been committed and
that respondent is probably guilty of the same, the judge should not dismiss
the case and thereon, order the parties to proceed to trial. In doubtful cases,
however, the appropriate course of action would be to order the presentation
of additional evidence.1wphi1

Hence, since it is explicitly required that the subject issuance be made within
the scope of a superior authoritys jurisdiction, it cannot therefore be doubted
that the second element of the crime of Open Disobedience does not exist.
Lest it be misunderstood, a court or any of its officers for that matter
which has no jurisdiction over a particular case has no authority to act at all
therein. In this light, it cannot be argued that Atty. Fria had already committed
the crime based on the premise that the Courts pronouncement as to Branch
203s lack of jurisdiction came only after the fact. Verily, Branch 203s lack of
jurisdiction was not merely a product of the Courts pronouncement in Reyes.
The said fact is traced to the very inception of the proceedings and as such,
cannot be accorded temporal legal existence in order to indict Atty. Fria for
the crime she stands to be prosecuted.

In other words, once the information is filed with the court and the judge
proceeds with his primordial task of evaluating the evidence on record, he
may either: (a) issue a warrant of arrest, if he finds probable cause; (b)
immediately dismiss the case, if the evidence on record clearly fails to
establish probable cause; and (c) order the prosecutor to submit additional
evidence, in case he doubts the existence of probable cause. 32 (Emphasis
and underscoring supplied; citations omitted)
Applying these principles to the case at bar would lead to the conclusion that
the MTC did not gravely abuse its discretion in dismissing Criminal Case No.
46400 for lack of probable cause. The dismissal ought to be sustained since
the records clearly disclose the unmistakable absence of the integral
elements of the crime of Open Disobedience. While the first element, i.e.,
that the offender is a judicial or executive officer, concurs in view of Atty.
Frias position as Branch Clerk of Court, the second and third elements of the
crime evidently remain wanting.
To elucidate, the second element of the crime of Open Disobedience is that
there is a judgment, decision, or order of a superior authority made within the
scope of its jurisdiction and issued with all legal formalities. In this case, it is
undisputed that all the proceedings in Civil Case No. 03-110 have been
regarded as null and void due to Branch 203s lack of jurisdiction over the
said case. This fact has been finally settled in Reyes where the Court
decreed as follows:
WHEREFORE, in view of the foregoing, the instant petition is DENIED. x x x
The Presiding Judge of the Regional Trial Court of Muntinlupa City, Branch
203 is PERMANENTLY ENJOINED from proceeding with Civil Case No. 03110 and all the proceedings therein are DECLARED NULL AND VOID. x x x
The Presiding Judge of the Regional trial Court of Muntinlupa City, Branch

Proceeding from this discussion, the third element of the crime, i.e., that the
offender, without any legal justification, openly refuses to execute the said
judgment, decision, or order, which he is duty bound to obey, cannot equally
exist. Indubitably, without any jurisdiction, there would be no legal order for
Atty. Fria to implement or, conversely, disobey. Besides, as the MTC correctly
observed, there lies ample legal justifications that prevented Atty. Fria from
immediately issuing a writ of execution.34
In fine, based on the above-stated reasons, the Court holds that no grave
abuse of discretion can be attributed to the MTC as correctly found by the
RTC. It is well-settled that an act of a court or tribunal can only be considered
as with grave abuse of discretion when such act is done in a "capricious or
whimsical exercise of judgment as is equivalent to lack of jurisdiction." The
abuse of discretion must be so patent and gross as to amount to an "evasion
of a positive duty or to a virtual refusal to perform a duty enjoined by law, or
to act at all in contemplation of law, as where the power is exercised in an
arbitrary and despotic manner by reason of passion and
hostility."35Consequently, the dismissal of Criminal Case No. 46400 for lack of
probable cause is hereby sustained.
WHEREFORE, the petition is DENIED. The Resolution dated January 8,
2008 and Order dated May 16, 2008 of the Regional Trial Court of
Muntinlupa City, Branch 276 in S.C.A. Case No. 07-096 are hereby
AFFIRMED.
SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice

WE CONCUR:

Id. at 243.

ANTONIO T. CARPIO
Associate Justice
Chairperson

Article 231 of the RPC reads:

ARTURO D. BRION
Associate Justice

ART. 231. Open Disobedience. Any judicial or executive


officer who shall openly refuse to execute the judgment,
decision, or order of any superior authority made within the
scope of the jurisdiction of the latter and issued with all the
legal formalities, shall suffer the penalties of arresto mayor in
its medium period to prisin correccional in its minimum
period, temporary special disqualification in its maximum
period and a fine not exceeding 1,000 pesos.

MARIANO C. DEL CASTILLO


Associate Justice

JOSE PORTUGAL PEREZ


Associate Justice
ATTE S TATI O N
I attend that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Courts Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

Rollo, p. 243.

Id. at 34.

Id. at 36.

Id. at 36-37.

10

Id. at 192-200.

11

Id. at 202-208.

12

Id. at 204-205.

13

Id. at 206.

C E R TI F I CATI O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairperson's Attestation, I certify that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer
of the opinion of the Court's Division.
MARIA
Chief Justice

LOURDES

P.

A.

SERENO

14

Id. at 237-242. Issued by 2nd Assistant City Prosecutor Leopoldo


B. Macinas and approved by City Prosecutor Edward M. Togonon.
15

Id. at 246-250.

16

Id. at 264-281. See Opposition dated October 10, 2006.

17

Id. at 282-286.

18

G.R. No. 168384, August 7, 2006, 498 SCRA 186.

19

Id. at 196-197.

20

Rollo, pp. 287-294. Filed on December 21, 2006.

Footnotes
1

Rollo, pp. 31-61.

Id. at 9-10. Penned by Acting Presiding Judge Romulo SG.


Villanueva.
3

Id. at 27-28.

21

Id. at 296-304. Penned by Presiding Judge Paulino Q. Gallegos.

22

Id. at 302.

23

Id. at 303.

24

Id. at 305-319. Motion for Reconsideration dated February 19,


2007.
25

Id. at 295 and 330.

26

Id. at 335-366.

27

Id. at 9-10.

28

Id. at 10. Dated January 30, 2008.

29

Id. at 11-26

30

Id. at 27-28.

31

G.R. Nos. 178947 and 179079, June 26, 2013.

32

Id.

33

Supra note 18, at 197.

34

Rollo, pp. 303-304.

35

Yu v. Reyes-Carpio, G.R. No. 189207, June 15, 2011, 652 SCRA


341, 348.

Republic of the Philippines


SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 178947

June 26, 2013

VIRGINIA DE LOS SANTOS-DIO, as authorized representative of H.S.


EQUITIES, LTD., and WESTDALE ASSETS, LTD., Petitioner,
vs.
THE HONORABLE COURT OF APPEALS, JUDGE RAMON S. CAGUIOA,
in his capacity as Presiding Judge of Branch 74, Regional Trial Court,
Olongapo City, and TIMOTHY J. DESMOND, Respondents.
x-----------------------x
G.R. No. 179079
PEOPLE OF THE PHILIPPINES, Petitioner,
vs.
TIMOTHY J. DESMOND, Respondent.
DECISION
PERLAS-BERNABE, J.:
Before the Court are consolidated petitions for review on certiorari 1 assailing
the November 8, 2006 Decision2 and July 19, 2007 Resolution 3 of the Court
of Appeals (CA) in CA-G.R. SP No. 88285, upholding the validity of the trial
courts dismissal of separate criminal informations for estafa against private
respondent Timothy J. Desmond (Desmond) due to lack of probable cause.
The Facts
In 2001, petitioner Virginia De Los Santos-Dio (Dio), the majority stockholder
of H.S. Equities, Ltd. (HS Equities) and authorized representative of

Westdale Assets, Ltd. (Westdale), 4 was introduced to Desmond, the


Chairman and Chief Executive Officer (CEO) of the Subic Bay Marine
Exploratorium, Inc. (SBMEI), and the authorized representative of Active
Environments, Inc. and JV China, Inc. (JV China), the majority shareholder of
SBMEI.5After some discussion on possible business ventures, Dio, on behalf
of HS Equities, decided to invest a total of US$1,150,000.00 6 in SBMEIs
Ocean Adventure Marine Park (Ocean Adventure), a theme park to be
constructed at the Subic Bay Freeport Zone which, when operational, would
showcase live performances of false-killer whales and sea lions. In this
relation, Dio claimed that Desmond led her to believe that SBMEI had a
capital of US$5,500,000.00, inclusive of the value of the marine mammals to
be used in Ocean Adventure,7 and also guaranteed substantial returns on
investment.8 Desmond even presented a Business Plan, indicating that: (a)
Ocean Adventures "attendance will rise from 271,192 in 2001 to just over
386,728 in 2006, with revenues rising from US$4,420,000.00 million to
US$7,290,000.00 million in the same time frame"; (b) "early investors are
expected to reap an annual return of 23% in 2001, rising to 51% in 2006";
and (c) "fully priced shares would yield a 19% return] in 2001, rising to 42%
in 2006."9 Thus, on January 18, 2002, a Subscription Agreement 10 was
executed by Desmond, as representative of SBMEI and JV China, and Dio,
as representative of HS Equities.
While no Certificate of Stock was issued either to HS Equities or to Dio, HS
Equities was expressly granted minority protection rights in a subsequent
Subscription and Shareholders Agreement 11 dated March 12, 2002, stating
that there shall be "a nominee of the Subscriber to be elected as
Treasurer/Chief Financial Officer, who may not be removed by the Board of
Directors without the affirmative vote of the Subscriber." 12 Accordingly, Dio
was elected as a member of SBMEIs Board of Directors and further
appointed as its Treasurer.13 The parties later executed two (2) Investors
Convertible Promissory Notes one dated April 4, 2001 14 and another dated
May 8, 200115 covering HS Equities infusion of a total of US$1,000,000.00
for the purpose of purchasing machinery, equipment, accessories, and
materials to be used for the construction of Ocean Adventure.
In June 2002, Dio, this time on behalf of Westdale, invested another
US$1,000,000.0016 in a separate business venture, called the Miracle Beach
Hotel Project (Miracle Beach), which involved the development of a resort
owned by Desmond adjoining Ocean Adventure. They agreed that the said
investment would be used to settle SBMEIsP40,000,000.00 loan obligation
to First Metro Investment Corporation and for the construction of 48 lodging
units/cabanas.17 However, when the corresponding subscription agreement
was presented to Dio by SBMEI for approval, it contained a clause stating
that the "funds in the Subscription Bank Account" were also to be used for
the "funding of Ocean Adventures Negative Cash Flow not exceeding
US$200,000.00."18 This was in conflict with the exclusive purpose and intent

of Westdales investment in Miracle Beach and as such, Dio refused to sign


the subscription agreement.
Dio further claimed that she found out that, contrary to Desmonds
representations, SBMEI actually had no capacity to deliver on its guarantees,
and that in fact, as of 2001, it was incurring losses amounting
toP62,595,216.00.19 She likewise claimed to have discovered false entries in
the companys books and financial statements specifically, its overvaluation
of the marine animals and its non-disclosure of the true amount of JV Chinas
investment20 which prompted her to call for an audit investigation.
Consequently, Dio discovered that, without her knowledge and consent,
Desmond made certain disbursements from Westdales special account,
meant only for Miracle Beach expenditures (special account), and diverted a
total of US$72,362.78 therein for the operating expenses of Ocean
Adventure.21 When Desmond refused to execute an undertaking to return the
diverted funds, Dio, in her capacity as Treasurer of SBMEI, suspended the
release of the remaining funds in the aforesaid special account. 22
Eventually, after Dio was ousted as Director and Treasurer of SBMEI, 23 she
filed, on April 19, 2004, two (2) criminal complaints 24 (subject criminal
complaints) for estafa (a) through false pretenses under Article 315(1)(b) 25of
the Revised Penal Code26 (RPC); and (b) with unfaithfulness or abuse of
confidence through misappropriation or conversion under Article 315(2)
(a)27 of the RPC, both against Desmond before the Olongapo City
Prosecutors Office (City Prosecutors Office), docketed as IS Nos. 04-M-992
and 04-M-993.
In defense, Desmond maintained that his representation of himself as
Chairman and CEO of SBMEI was not a sham and that Dio has not even
proven that he did not have the expertise and qualifications to double her
investment. Among others, he also denied having been fired from Beijing
Landa Aquarium Co. Ltd. for his supposed incompetence and
mismanagement. He further asserted that it was not deceitful to value the
marine mammals at US$3,720,000.00 as equity contribution of JV China in
SBMEI, notwithstanding the fact that two (2) false killer whales had already
perished before the company could start operations. This is because the said
valuation, in any case, would be based on the collective income-earning
capacity of the entire animal operating system derived from revenues
generated by marine park attendance and admission fees. 28
In reply, Dio insisted that SBMEI, at the outset, never had sufficient assets or
resources of its own because, contrary to Desmonds claims, the total
amount of US$2,300,000.00 it purportedly invested in buildings and
equipment actually came from the investments Dios company made in
SBMEI.29

After the preliminary investigation, the City Prosecutor issued a


Resolution30 dated August 26, 2004, finding probable cause against
Desmond for the abovementioned crimes, to wit:
The foregoing clearly applies in the instant two (2) cases as borne out by the
following facts, to with [sic]: (1) Desmond, as the Chairman and Chief
Executive Office of SBMEI and in order to persuade Dio to invest,
represented that he possessed the necessary influence, expertise and
resources (in terms of credit and property) for the project knowing the same
to be false as he never had the capital for the project as borne out by his
correspondences with Dio; and (2) Dio fell for these misrepresentations and
the lure of profit offered by Desmond, thereby being induced to invest the
amounts of $1,150,000.00 and $1,000,000.00 to the damage and prejudice
of her company.
The elements of the crimes charged were thus established in these cases,
namely Dio parted with her money upon the prodding and enticement of
respondent on the false pretense that he had the capacity and resources for
the proposed project. In the end, Dio was not able to get her money back,
thus causing her damage and prejudice. Moreover, such defraudation or
misappropriation having been committed by Desmond through his company
SBMEI involving funds solicited from Dio as a member of the general public
in contravention of the public interest, the probable cause clearly exists to
indict Desmond for the crime of Estafa under Article 315 (1)(b) and (2)(a) of
the Revised Penal Code in relation to PD No. 1689. 31
In view of the foregoing, corresponding criminal informations 32 (subject
informations) were filed with the Regional Trial Court of Olongapo City,
Branch 74 (RTC), docketed as Criminal Case Nos. 516-2004 and 515-2004.
The accusatory portions thereof read as follows:
Criminal Case No. 516-200433
That in or about and sometime in early 2001, in Olongapo City, Philippines,
and within the jurisdiction of this Honorable Court, the abovenamed accused,
being the officer of Subic Bay Marine Exploration, Inc. (SBMEI), acting as a
syndicate and by means of deceit, did then and there, willfully, unlawfully and
feloniously defraud H.S. EQUITIES LIMITED, represented in this case by
Virginia S. Delos Santos-Dio in the following manner, to wit: the said accused
by means of false manifestations and fraudulent representations which he
made to said Virginia S. Delos Santos-Dio to the effect that he had the
expertise and qualifications, as well as the resources, influence, credit and
business transaction with the Subic Bay Metropolitan Authority (SBMA) and
other financing institutions to ensure the viability of the Subic Bay Marine
Exploration Ocean Adventure Project (SBMEOA), which he represented to

be a qualified and legally existing investment enterprise with capacity to


solicit investment from the general public, by submitting documents for the
purpose, which representations he knew to be false and fraudulent and the
supporting documents are similarly spurious and were only made in order to
induce said Virginia S. Delos Santos-Dio to invest and deliver as in fact she
invested and delivered a total amount of One Million One Hundred Fifty
Thousand US Dollars ($1,150,000.00) to the said accused on the strength of
said manifestations and representations and supporting documents, and said
accused, once in possession of the said amount, misapplied, converted and
misappropriated the same to his own personal use and benefit, to the
damage and prejudice of H.S. Equities Limited in the amount of US
$1,150,000.00 or Php57,500,000.00 Pesos, the dollar computed at the rate
of Php 50.00 to [US]$1.00 which was the prevailing rate of exchange of a
dollar to peso at the time of the commission of the offense.
CONTRARY TO LAW.
Criminal Case No. 515-200434
That in or about and sometime during the period from June 2002 to July
2002, in Olongapo City, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, did then and there, willfully,
unlawfully and feloniously defraud Westdale Assets, Limited represented in
this case by Virginia S. Delos Santos-Dio in the following manner to wit: the
said accused received in trust and for administration from the said Virginia S.
Delos Santos-Dio the amount of One Million US Dollars ($1,000,000.00)
under the express obligation of using the same to pay the loan facility of the
Subic Bay Marine Exploration, Inc. (SBMEI) with First Metro Investment
Corporation and to fund the construction and development of the Miracle
Beach Project but the said accused, once in possession of the said amount,
with grave abuse of confidence and with intent to defraud, misapplied,
misappropriated and converted the same for his own use and benefit by
devoting it to a purpose or use different from that agreed upon and despite
repeated demands made upon him to account for and to return the said
amount, he failed and refused and still fails and refuses to do so, to the
damage and prejudice of the said Westdale Assets, Limited in the amount of
US $1,000,000.00 or its equivalent to FIFTY MILLION (Php 50,000,000.00)
Pesos, Philippine Currency, the dollar being computed at the rate of
Php50.00 to $ 1.00 which was the prevailing rate of exchange at the
commission of the offense, to the damage and prejudice of the latter in the
aforementioned amount.
CONTRARY TO LAW.

Aggrieved, Desmond filed a Motion for Reconsideration, 35 as well as a


Motion to Withdraw Filed Informations. 36He also filed before the RTC a
Motion to Defer Further Proceedings and to Defer Issuance of Warrant of
Arrest37but subsequently withdrew the same and filed, instead, a Motion for
Judicial Determination of Probable Cause.38
The RTC Ruling
In an Order39 dated October 21, 2004, the RTC ruled in favor of Desmond
and declared that no probable cause exists for the crimes charged against
him since the elements of estafa were not all present, to wit:
First, the element of misrepresentation or deceit found in par. 2 (a) Article
315 of the Revised Penal Code is absent. It must be emphasized that the
promises allegedly made to the complainant by the accused that her
companys investment will significantly increase, clearly appeared in the
Subic Bay Marine Exploration, Inc.s ("SBMEI", for brevity) printed business
plan dated January 12, 2001 (Annex "A", Complaint-Affidavit dated 19 April
2004). Verily, this is SBMEIs representation or "come on" to would-be
investors and not a personal assurance of the accused. The fact that
accused was the companys Chief Executive Officer and Chairman of the
Board of Directors is of no moment in the absence of any evidence to show
that accused personally prepared the business plan thereby making the
alleged "rosy picture" his own personal enticements to the complainant.
Therefore, there being a dearth of evidence pointing to the accused as
author of the SBMEIs business plan, any misrepresentation or deceit
committed cannot be personally attributed to him.
Furthermore, the court cannot find any sufficient evidence that the accused
personally assured the complainant about his so-called power, influence and
credit with the SBMA and other financial institutions that would supposedly
insure the viability and profitability of the project. Note that nowhere in the
Complaint-Affidavit of the private complainant are there specific factual
allegations that would show that the accused had personal business
meetings with the SBMA and said financial institutions. As to how and in what
manner and scope accused exercised such alleged power, influence and
credit over these juridical entities remain a bare and self-serving averment in
the absence of any factual detail or account.
Finally, it cannot be gainsaid [sic] that accused was the one who personally
valuated the marine mammals contributed by JV China Incorporated to the
Subic Bay Marine Exploration, Inc. as capital amounting to US$3.724 Million.
Evidence clearly point to an independent valuation done by a third party
namely Beijing Landa Aquarium that valued the marine mammals under the
Buy-Out Agreement dated September 9, 1998. Needless to state, the onus is

on complainant to controvert this valuation. Again, however, no adequate


proof was adduced along this line.
Second, the element of personal misappropriation by the accused under par.
1(b) Article 315 of the Revised Penal Code is likewise not present. While it
may be conceded that there was money utilized to pay salaries of expatriates
and staff as well as the cost of utilities amounting to US$72,272.00
complainant failed to show that said money was taken from her companies
investments in SBMEI. It must be pointed out that other than complainants
bare allegation, there was no document presented categorically stating that
the investment of complainants companies were earmark for a particular
payment or project. Hence, when the investment entered SBMEIs financial
coffers, the same presumably were co-mingled with other monies of the
corporation.
Moreover and more revealing, is the fact that again there was no showing
that it was accused who personally caused the payment of these expenses
allegedly in violation of the objective of the investment. It must be noted that
SBMEI is a corporation and not a single proprietorship. Being a corporation,
expenses paid of such a kind as utilities and salaries are not authorized
personally and solely by the President nor the Chief Executive Officer nor
even by the Chairman of the Board for that matter. These are corporate acts
that are passed through board resolutions. Hence, these corporate acts can
in no way be considered personal acts of the accused. Yet, he was singled
out among all 5 members of the Board of Directors who presumably, in the
ordinary course of business, approved by resolution the payments of such
utilities and salaries. Consequently, there is again insufficiency of evidence
that the accused alone caused the payment of these salaries and utilities for
the sole purpose of pocketing the money thereby using the same for
personal gain.40
Consequently, the RTC denied the issuance of a warrant of arrest and hold
departure order against Desmond and ordered the dismissal of the cases
against him:
WHEREFORE, foregoing considered, the subject motion for judicial
determination of probable cause is favorably granted. There being no
probable cause, the cases against the accused must be dismissed as they
are hereby DISMISSED. The motions to issue warrant of arrest and Hold
Departure Order as well as the prayer for provisional remedy are necessarily
DENIED.
SO ORDERED.41

Given the RTCs dismissal of the foregoing criminal cases, the City
Prosecutors Office filed motion for reconsideration which was, however,
denied. As such, it filed a petition for certiorari and mandamus 42 before the
CA on the ground of grave abuse of discretion. Relatedly, Dio also filed a
petition-in-intervention43 before the CA, praying for the reinstatement of the
subject criminal complaints.
The CA Ruling
In its November 8, 2006 Decision, 44 the CA upheld the RTCs authority to
dismiss a criminal case if in the process of determining probable cause for
issuing a warrant of arrest, it also finds the evidence on record insufficient to
establish probable cause. It explained that such dismissal is an exercise of
judicial discretion sanctioned under Section 6(a), Rule 112 of the Revised
Rules of Criminal Procedure. On this score, the CA evaluated the evidence
presented and agreed with the RTCs conclusions that there was no sufficient
basis showing that Desmond committed estafa by means of false pretenses.
Neither was it established that the money sourced from petitioner Dio was
converted by respondent Desmond for some other purpose other than that
for which it was intended. Pertinent portions of the CA Decision restated the
RTCs observations in this wise:
In the instant case, the alleged false representations by Desmond which
allegedly induced private complainants H.S. Equities, Ltd. ("H.S. Equities")
and Dio, to part with their money are not supported by the facts on record.
First, the alleged false representation employed by Desmond with respect to
his expertise and qualifications in the form of influence, credit and business
transactions with the Subic Bay Metropolitan Authority (SBMA) and financial
institutions and such resources to enable private complainants to double its
investment with SBMEI has not been shown to be false.
Indeed, nowhere in the documentary evidence presented by private
complainants that allegedly contained the above false representations does it
show that it was private respondent himself who made such representation.
Notably, the SBMEIs Business Plan dated January 12, 2001 to which private
complainants anchor such allegation does not indicate that the
representations made therein came personally from Desmond. In addition,
neither does it appear from such document that the statements therein were
used as a form of a personal assurance coming from Desmond that private
complainants would indeed double the amount they had invested with
SBMEI. If at all, we agree with the trial court that statements made in the said
business plan were merely a form of enticement to encourage would-be
investors from [sic] investing in such kind of business undertaking.

Moreover, we likewise agree with the trial court that no factual allegations
were made by private complainants as to how such false pretense of power
and influence was made upon them by Desmond and which convinced
private complainants to part with their money. It bears stressing that the
allegations of false pretense of power and influence in a case of estafa are
mere conclusions of law which must be substantiated at the very least by
circumstances which would show that the person accused of committing
estafa did indeed commit acts of false representations. As the records show,
there was no misrepresentation on the part of Desmond that he is the
Chairman and Chief Executive Officer of SBMEI which is a corporation
engaged in the business of developing marine parks. Significantly, the
records likewise show that SBMEI did indeed build and develop a marine
park in Subic Bay (Ocean Adventure) for the purposes stated in its business
plan and had entered into a long-term lease agreement with SBMA.
Documentary evidence in the form of the Report of Independent Auditors to
SBMEI shows the amount of investment the corporation had invested in the
said business undertaking. For instance, the corporation had invested the
amount of P106,788,219.00 in buildings and equipment alone. It has also
assets consisting of marine mammals which are necessary for the operation
of the marine park. In this respect, we cannot subscribe to private
complainants contention that there was misrepresentation on the part of
private respondent that he had overvalued the worth of the marine mammals
it had purchased from Beijing Landa Aquarium Co., Ltd. of the Republic of
China. This claim of private complainants of the deceitful acts employed by
Desmond in overpricing the value of the marine animals for US$3.724 Million
when in fact the sea animals were only valued for one U.S. dollar was not
corroborated by the evidence on hand.
xxxx
In the same manner, the facts in the case at bar that would allegedly
constitute a criminal charge of estafa under par. 1(b) are wanting. Be it noted
that under the said paragraph, estafa with unfaithfulness or abuse of
confidence through misappropriation or conversion of the money, goods or
any other personal property must be received in trust, on commission, for
administration, or under any other obligation which involves the duty to make
delivery thereof or to return the same. It is not amiss to note that a perusal of
private complainants Complaint-Affidavit shows that subject money in the
amount of US$1,000,000.00 to be used for the Miracle Beach Project was
placed in a special account with Equitable-PCI Bank. As the records show,
the said funds were placed by Dio under the control of Fatima Paglicawan,
an employee of Westdale, such that, no money can be withdrawn from the
special account without the signature of the said employee, Desmond and a
certain John Corcoran. Therefore, at such time, it cannot be said that the
funds were received for administration or already under the juridical
possession of Desmond. Meanwhile, we would like to emphasize that to

constitute conversion, it presupposes that the thing has been devoted to a


purpose or use different from that agreed upon. Verily, a facial examination of
the Journal Voucher and Check Voucher pertaining to the withdrawals made
on such account clearly shows that the disbursements were not only
authorized by Paglicawan but likewise indicated that the purpose for such
withdrawals was to cover payments for BIR taxes and the salaries of local
employees and expatriates.
To repeat, these withdrawals as well as the purpose thereof were known to
Paglicawan when [sic] she authorized the disbursements. Paglicawan, who
was designated by private complainant Dio to control the release of the said
funds is presumed to have acted under the latters authority. Such
miscommunication between Dio and Paglicawan with respect to the purpose
of the funds does not make out a case of estafa there being no abuse of
confidence or conversion to speak of taking into account that the said funds
were released under the presumed authority of private complainants through
Paglicawan, and which were indeed used for the purpose for which it was
withdrawn. That being the case, there can be no damage or prejudice to
Westdale and Dio as there was no disturbance in the property rights of
Westdale and Dio in the said funds since the same were used for the
purpose for which it was disbursed.
Then again, we agree with the trial court that there is no sufficient evidence
adduced to support the criminal charges of estafa against Desmond. As
pointed out by the trial court, while private respondent is the Chairman and
Chief Executive Officer of SBMEI, there is no showing that he had personally
and solely authorized the application of the above funds for the payment of
expenses not directly connected with the Miracle Beach Project. Nor does it
appear that as Chairman and Chief Executive Officer, Desmond has been
appointed to execute, on his own, such corporate acts. 45 (Citations omitted)
The City Prosecutor and Dio filed their respective motions for reconsideration
which were both denied in a Resolution46 dated July 19, 2007.
Hence, the instant petitions.
The Issue Before the Court
The primordial issue in this case is whether or not the CA erred in finding no
grave abuse of discretion on the part of the RTC when it dismissed the
subject informations for lack of probable cause.
The Courts Ruling
The petitions are meritorious.

Determination of probable cause may be either executive or judicial.


The first is made by the public prosecutor, during a preliminary investigation,
where he is given broad discretion to determine whether probable cause
exists for the purpose of filing a criminal information in court. Whether or not
that function has been correctly discharged by the public prosecutor, i.e.,
whether or not he has made a correct ascertainment of the existence of
probable cause in a case, is a matter that the trial court itself does not and
may not be compelled to pass upon.47
The second is one made by the judge to ascertain whether a warrant of
arrest should be issued against the accused. In this respect, the judge must
satisfy himself that, on the basis of the evidence submitted, there is a
necessity for placing the accused under custody in order not to frustrate the
ends of justice. If the judge, therefore, finds no probable cause, the judge
cannot be forced to issue the arrest warrant. 48 Notably, since the judge is
already duty-bound to determine the existence or non-existence of probable
cause for the arrest of the accused immediately upon the filing of the
information, the filing of a motion for judicial determination of probable cause
becomes a mere superfluity,49 if not a deliberate attempt to cut short the
process by asking the judge to weigh in on the evidence without a full-blown
trial.
In the case of Co v. Republic, 50 the Court emphasized the settled distinction
between an executive and a judicial determination of probable cause, viz: 51
We reiterate that preliminary investigation should be distinguished as to
whether it is an investigation for the determination of a sufficient ground for
the filing of the information or it is an investigation for the determination of a
probable cause for the issuance of a warrant of arrest. The first kind of
preliminary investigation is executive in nature. It is part of the prosecution's
job.1wphi1 The second kind of preliminary investigation which is more
properly called preliminary examination is judicial in nature and is lodged with
the judge.
On this score, it bears to stress that a judge is not bound by the resolution of
the public prosecutor who conducted the preliminary investigation and must
himself ascertain from the latters findings and supporting documents
whether probable cause exists for the purpose of issuing a warrant of arrest.
This prerogative is granted by no less than the Constitution which provides
that "no warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or
affirmation of the complainant and the witnesses he may produce." 52

While a judges determination of probable cause is generally confined to the


limited purpose of issuing arrest warrants, Section 5(a), 53 Rule 112 of the
Revised Rules of Criminal Procedure explicitly states that a judge may
immediately dismiss a case if the evidence on record clearly fails to establish
probable cause,54 viz:
SEC. 5. When warrant of arrest may issue. (a) By the Regional Trial Court.
Within ten (10) days from the filing of the complaint or information, the
judge shall personally evaluate the resolution of the prosecutor and its
supporting evidence. He may immediately dismiss the case if the evidence
on record clearly fails to establish probable cause. If he finds probable cause,
he shall issue a warrant of arrest, or a commitment order if the accused had
already been arrested, pursuant to a warrant issued by the judge who
conducted preliminary investigation or when the complaint or information was
filed pursuant to Section 7 of this Rule. In case of doubt on the existence of
probable cause, the judge may order the prosecutor to present additional
evidence within five (5) days from notice and the issue must be resolved by
the court within thirty (30) days from the filing of the complaint or information.
(Emphasis and underscoring supplied)
In this regard, so as not to transgress the public prosecutors authority, it
must be stressed that the judges dismissal of a case must be done only in
clear-cut cases when the evidence on record plainly fails to establish
probable cause that is when the records readily show uncontroverted, and
thus, established facts which unmistakably negate the existence of the
elements of the crime charged. On the contrary, if the evidence on record
shows that, more likely than not, the crime charged has been committed and
that respondent is probably guilty of the same, the judge should not dismiss
the case and thereon, order the parties to proceed to trial. In doubtful cases,
however, the appropriate course of action would be to order the presentation
of additional evidence.55
In other words, once the information is filed with the court and the judge
proceeds with his primordial task of evaluating the evidence on record, he
may either: (a) issue a warrant of arrest, if he finds probable cause; (b)
immediately dismiss the case, if the evidence on record clearly fails to
establish probable cause; and (c) order the prosecutor to submit additional
evidence, in case he doubts the existence of probable cause. 56
Applying these principles, the Court finds that the RTCs immediate
dismissal, as affirmed by the CA, was improper as the standard of clear lack
of probable cause was not observed. In this case, records show that certain
essential facts namely, (a) whether or not Desmond committed false
representations that induced Dio to invest in Ocean Adventure; and (b)
whether or not Desmond utilized the funds invested by Dio solely for the
Miracle Beach Project for purposes different from what was agreed upon

remain controverted. As such, it cannot be said that the absence of the


elements of the crime of estafa under Article 315(2)(a) 57 and 315(1) (b)58 of
the RPC had already been established, thereby rendering the RTCs
immediate dismissal of the case highly improper.
Lest it be misconceived, trial judges will do well to remember that when a
perceived gap in the evidence leads to a "neither this nor that" conclusion, a
purposeful resolution of the ambiguity is preferable over a doubtful dismissal
of the case. Verily, a judge's discretion to dismiss a case immediately after
the filing of the information in court is appropriate only when the failure to
establish probable cause can be clearly inferred from the evidence presented
and not when its existence is simply doubtful. After all, it cannot be expected
that upon the filing of the information in court the prosecutor would have
already presented all the evidence necessary to secure a conviction of the
accused, the objective of a previously-conducted preliminary investigation
being merely to determine whether there is sufficient ground, to engender a
well-founded belief that a crime has been committed and that the respondent
is probably guilty thereof and should be held for trial. 59 In this light, given that
the lack of probable cause had not been clearly established in this case, the
CA erred, and the RTC gravely abused its discretion, by ruling to dismiss
Criminal Case Nos. 515-2004 and 516-2004. Indeed, these cases must
stand the muster of a full-blown trial where the parties could be given, as
they should be given, the opportunity to ventilate their respective claims and
defenses, on the basis of which the court a quo can properly resolve the
factual disputes therein.
WHEREFORE, the petitions are GRANTED. The November 8, 2006
Decision and July 19, 2007 Resolution of the Court of Appeals in CA G.R. SP
No. 88285 which affirmed the October 21, 2004 Order of Dismissal issued by
the Regional Trial Court of Olongapo City, Branch 74 are SET ASIDE. The
two (2) criminal informations for estafa against respondent Timothy J.
Desmond in Criminal Case Nos. 515-2004 and 516-2004 are hereby
REINSTATED. Accordingly, the trial court is directed to proceed with the
arraignment of the accused and the trial of the case with dispatch.

ARTURO D. BRION
Associate Justice

MARIANO C. DEL CASTILLO


Associate Justice

JOSE PORTUGAL PEREZ


Associate Justice
ATTE S TATI O N
I attest that the conclusions in the above Decision had been reached in
consultation before the cases were assigned to the writer of the opinion of
the Courts Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
C E R TI F I CATI O N
Pursuant to Section I 3, Article VIII of the Constitution, and the Division
Chairperson's Attestation, I certify that the conclusions in the above Decision
had been reached in consultation before the cases were assigned to the
writer of the opinion of the Court's Division.
MARIA LOURDES P. A. SERENO
Chief Justice

Footnotes
1

Rollo (G.R. No. 178947), pp. 54-87; rollo (G.R. No. 179079), pp. 933.
2

SO ORDERED.
ESTELA M. PERLAS-BERNABE
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson

Rollo (G.R. No. 178947), pp. 96-110; rollo (G.R. No. 179079), pp.
36-50. Penned by Associate Justice Rodrigo V. Cosico, with
Associate Justices Edgardo F. Sundiam and Celia C. LibreaLeagogo, concurring.
3

Rollo (G.R. No. 178947), pp. 112-117; rollo (G.R. No. 179079), pp.
51-56.
4

HS Equities and Westdale are both foreign companies organized


and registered under the laws of the British Virgin Islands. Rollo
(G.R. No. 178947), p. 57.

Rollo (G.R. No. 179079), pp. 87-90.

25

Id. at 91-93.

Id. at 81, 87-90.

xxxx

See Complaint-Affidavit in I.S. No. 04-M-992, id. at 79-84.

Rollo (G.R. No. 178947), p. 141; rollo (G.R. No. 179079), p. 86.

2. By means of any of the following false pretenses or


fraudulent acts executed prior to or simultaneously with the
commission of the fraud:

ART. 315. Swindling (estafa). - Any person who shall defraud


another by any of the means mentioned hereinbelow shall be
punished

10

Rollo (G.R. No. 178947), pp. 145-147.

11

Id. at 148-167.

(a) By using a fictitious name, or falsely pretending to


possess power, influence, qualifications, property, credit,
agency, business or imaginary transactions, or by means of
other similar deceits.

12

Id. at 156.

xxxx

13

See Minutes of Annual Stockholders Meeting and Minutes of


Organizational Meeting of the Board of Directors, id. at 172 & 175.

26

Act No. 3815, as amended.

27
14

Id. at 176-177.

15

Id. at 178-179.

16

Rollo (G.R. No. 178947), p. 180; rollo (G.R. No. 179079), p. 114.

17

Rollo (G.R. No. 178947), p. 220; rollo (G.R. No. 179079), p. 111.

18

Rollo (G.R. No. 178947), p. 184.

19

Rollo (G.R. No. 179079), p. 125.

20

See Complaint-Affidavit (I.S. No. 04-M-993), id. at 109-113.

21

Rollo (G. R. No. 179079), pp. 115-118.

22

Id. at 112 & 120.

23

Rollo (G.R. No. 178947), p. 216; rollo (G.R. No. 179079), p. 83.

24

Rollo (G.R. No. 178947), pp. 212-217 & 218-222; rollo (G.R. No.
179079), pp. 79-84 & 109-113.

ART. 315. Swindling (estafa). - Any person who shall defraud


another by any of the means mentioned hereinbelow shall be
punished
xxxx
1. With unfaithfulness or abuse of confidence, namely:
xxxx
(b) By misappropriating or converting, to the prejudice of
another, money, goods, or any other personal property
received by the offender in trust or on commission, or for
administration, or under any other obligation involving the
duty to make delivery of or to return the same, even though
such obligation be totally or partially guaranteed by a bond;
or by denying having received such money, goods, or other
property;
xxxx
28

See Counter-Affidavit, rollo (G.R. No. 178947), pp. 223-244.

29

See Reply-Affidavit, id. at 245-250.

30

Rollo (G.R. No. 178947), pp. 251-254; rollo (G.R. No. 179079), pp.
135-138. Penned by City Prosecutor Prudencio B. Jalandoni.

45

31

46

Id. at 253-254.

Rollo (G.R. No. 178947), pp. 105-109; rollo (G.R. No. 179079), pp.
45-49.
Rollo (G.R. No. 178947), pp. 112-117; rollo (G.R. No. 179079), pp.
51-56.

32

Rollo (G.R. No. 178947), pp. 255-256 & 257-258; rollo (G.R. No.
179079), pp. 139-140 & 141-142.

47

People v. Castillo, G.R. No. 171188, June 19, 2009, 590 SCRA 95,
105-106.

33

Rollo (G.R. No. 178947), pp. 255-256; rollo (G.R. No. 179079), pp.
139-140.

48

34

Rollo (G.R. No. 178947), pp. 257-258; rollo (G.R. No. 179079), pp.
141-142.

49

35

50

Rollo (G.R. No. 178947), pp. 259-271; rollo (G.R. No. 179079), pp.
143-155.

Id. at 106.

Leviste v. Alameda, G.R. No. 182677, August 3, 2010, 626 SCRA


575, 609.
G.R. No. 168811, November 28, 2007, 539 SCRA 147.

51
36

Rollo (G.R. No. 178947), pp. 274-276; rollo (G.R. No. 179079), pp.
156-158.

Id. at 157, citing People v. Inting, G.R. No. 88919, July 25, 1990,
187 SCRA 788, 794. See also AAA v. Carbonell, G.R. No. 171465, 8
June 2007, 524 SCRA 496.

37

52

Rollo (G.R. No. 178947), pp. 277-284; rollo (G.R. No. 179079), pp.
159-167.

1987 PHILIPPINE CONSTITUTION, Article III, Section 2.

53
38

Rollo (G.R. No. 178947), pp. 286-291; rollo (G.R. No. 179079), pp.
168-173.
39

Rollo (G.R. No. 178947), pp. 307-309; rollo (G.R. No. 179079), pp.
190-192. Penned by Executive Judge Ramon S. Caguioa.

Formerly Section 6(a) of Rule 112. The deletion of Section 5


concerning the power of MTC judges to conduct preliminary
investigation through the issuance of Administrative Matter No. 05-826-SC dated August 30, 2005 caused a renumbering of the
subsequent sections beginning with Section 6.
54

40

Rollo (G.R. No. 178947), pp. 307-308; rollo (G.R. No. 179079), pp.
190-191.

See also Ong v. Genio, G.R. No. 182336, December 23, 2009, 609
SCRA 188, 196-197.
55

41

Rollo (G.R. No. 178947), p. 309; rollo (G.R. No. 179079), p. 192.

SEC. 5(a), Rule 112, Revised Rules of Criminal Procedure, as


amended by A. M. No. 05-8-26-SC.

Rollo (G.R. No. 178947), pp. 320-343; rollo (G.R. No. 179079), pp.
194-217.

56

43

57

42

44

Rollo (G.R. No. 178947), pp. 350-393.

Rollo (G.R. No. 178947), pp. 96-110; rollo (G.R. No. 179079), pp.
36-50.

RIANO, W.B., Criminal Procedure (The Bar Lecture Series), 2011


Ed., p. 190.
The elements of estafa through false pretenses under Article 315,
paragraph 2(a) of the RPC are: (1) that the accused made false
pretenses or fraudulent representations as to his power, influence,
qualifications, property, credit, agency, business or imaginary
transactions; (2) that the false pretenses or fraudulent
representations were made prior to or simultaneous with the
commission of the fraud; (3) that the false pretenses or fraudulent

representations constitute the very cause which induced the


offended party to part with his money or property; (4) that as a result
thereof, the offended party suffered damage. See Ansaldo v. People,
G.R. No. 159381, March 26, 2010, 616 SCRA 556, 564.
58

The elements of estafa with abuse of confidence through


misappropriation or conversion under Article 315 1(b) of the RPC
are: (1) that money, goods or other personal property be received by
the offender in trust, or on commission, or for administration, or
under any other obligation involving the duty to make delivery of, or
to return, the same; (2) that there be misappropriation or conversion
of such money or property by the offender, or denial on his part of
such receipt; (3) that such misappropriation or conversion or denial is
to the prejudice of another; and (4) that there is demand made by the
offended party on the offender. See Burgundy Realty Corporation v.
Reyes, G.R. No. 181021, December 10, 2012, 687 SCRA 524, 532533.
59

People v. CA, G.R. No. 126005,January21,1999, 301 SCRA


475,488.

Republic of the Philippines


SUPREME COURT
Baguio City
THIRD DIVISION
G.R. No. 197293

April 21, 2014

ALFREDO C. MENDOZA, Petitioner,


vs.
PEOPLE OF THE PHILIPPINES AND JUNO CARS, INC., Respondents.
DECISION
LEONEN, J.:
While the determination of probable cause to charge a person of a crime is
the sole function of the. prosecutor, the trial court may, in the protection of
one's fundamental right to liberty, dismiss the case if, upon a personal
assessment of the evidence, it finds that the evidence does not establish
probable cause.
1

This is a petition for review on certiorari assailing the Court of Appeals'


decision2 dated January 14, 2011, which reversed the Regional Trial Court's
dismissal of the complaint against petitioner Alfredo C. Mendoza for qualified
theft and estafa.
This case stems from a complaint-affidavit filed by Juno Cars, Inc. through its
representative, Raul C. Evangelista, on January 8, 2008 for qualified theft
and estafa against Alfredo.3
In the complaint-affidavit, Juno Cars alleged that on June 2, 2007, it hired
Alfredo as Trade-In/Used Car Supervisor. On November 19, 2007, its
Dealer/Operator, Rolando Garcia, conducted a partial audit of the used cars
and discovered that five (5) cars had been sold and released by Alfredo
without Rolandos or the finance managers permission. 4

The partial audit showed that the buyers of the five cars made payments, but
Alfredo failed to remit the payments totalling P886,000.00. It was further
alleged that while there were 20 cars under Alfredos custody, only 18 were
accounted for. Further investigation revealed that Alfredo failed to turn over
the files of a 2001 Hyundai Starex and a Honda City 1.5 LXI. Juno Cars
alleged that taking into account the unremitted amounts and the acquisition
cost of the Honda City, Alfredo pilfered a total amount of P1,046,000.00 to its
prejudice and damage.5
In his counter-affidavit, Alfredo raised, among others, Juno Cars supposed
failure to prove ownership over the five (5) cars or its right to possess them
with the purported unremitted payments. Hence, it could not have suffered
damage.6
On March 4, 2008, Provincial Prosecutor Rey F. Delgado issued a
Resolution7 finding probable cause and recommending the filing of an
information against Alfredo for qualified theft and estafa.
Alfredo moved for reconsideration, but the motion was denied. 8 He then filed
a petition for review with the Department of Justice on May 16, 2008. 9
While Alfredos motion for reconsideration was still pending before the Office
of the City Prosecutor of Mandaluyong, two informations for qualified
theft10 and estafa11 were filed before the Regional Trial Court, Branch 212,
Mandaluyong City. On March 31, 2008, Alfredo filed a motion for
determination of probable cause 12 before the trial court. On April 28, 2008, he
also filed a motion to defer arraignment.
Several clarificatory hearings were scheduled but were not conducted. 13 On
February 4, 2009, the parties agreed to submit all pending incidents,
including the clarificatory hearing, for resolution.14
On March 3, 2009, the trial court, through Presiding Judge Rizalina CapcoUmali, issued an order15 dismissing the complaint, stating that:
After conducting an independent assessment of the evidence on record
which includes the assailed Resolution dated 04 March 2008, the court holds
that the evidence adduced does not support a finding of probable cause for
the offenses of qualified theft and estafa. x x x.16
Juno Cars filed a motion for reconsideration, which the trial court denied on
July 3, 2009.17
Juno Cars then filed a petition for certiorari with the Court of Appeals, arguing
that the trial court acted without or in excess of its jurisdiction and with grave

abuse of discretion when it dismissed the complaint. It argued that "the


determination of probable cause and the decision whether or not to file a
criminal case in court, rightfully belongs to the public prosecutor." 18
On January 14, 2011, the Court of Appeals rendered a decision, 19 reversed
the trial court, and reinstated the case. In its decision, the appellate court
ruled that the trial court acted without or in excess of its jurisdiction "in
supplanting the public prosecutors findings of probable cause with her own
findings of insufficiency of evidence and lack of probable cause." 20
Aggrieved, Alfredo filed a petition for review under Rule 45 before this court.
In essence, he argued that the trial court was correct in finding that there was
no probable cause as shown by the evidence on record. He argued that
"judicial determination of probable cause is broader than [the] executive
determination of probable cause"21 and that "[i]t is not correct to say that the
determination of probable cause is exclusively vested on the prosecutor x x
x."22
In its comment,23 Juno Cars argued that Alfredo presented questions, issues,
and arguments that were a mere rehash of those already considered and
passed upon by the appellate court.
The Office of the Solicitor General, arguing for public respondent, stated in its
comment24 that the appellate court correctly sustained the public prosecutor
in his findings of probable cause against Alfredo. Since there was no showing
of grave abuse of discretion on the part of Prosecutor Rey F. Delgado, the
trial court should respect his determination of probable cause.
In his reply,25 Alfredo reiterated that "judicial determination of probable
cause[,] while not a superior faculty[,] covers a broader encompassing
perspective in the disposition of the issue on the existence of probable
cause."26He argued that the findings of the trial court should be accorded
greater weight than the appellate courts. It merely reviewed the findings of
the trial court.
The primordial issue is whether the trial court may dismiss an information
filed by the prosecutor on the basis of its own independent finding of lack of
probable cause.
Time and again, this court has been confronted with the issue of the
difference between the determination of probable cause by the prosecutor on
one hand and the determination of probable cause by the judge on the other.
We examine these two concepts again.

Juno Cars filed a complaint against Alfredo for qualified theft 27 and estafa
under Article 315, fourth paragraph, no. 3(c) 28 of the Revised Penal Code.
Since qualified theft is punishable by reclusion perpetua, a preliminary
investigation must first be conducted "to determine whether there is sufficient
ground to engender a well-founded belief that a crime has been committed
and the respondent is probably guilty thereof, and should be held for trial," in
accordance with Rule 112, Section 1 of the Rules on Criminal Procedure.
At this stage, the conduct of the preliminary investigation and the subsequent
determination of the existence of probable cause lie solely within the
discretion of the public prosecutor.29 If upon evaluation of the evidence, the
prosecutor finds sufficient basis to find probable cause, he or she shall then
cause the filing of the information with the court.
Once the information has been filed, the judge shall then "personally
evaluate the resolution of the prosecutor and its supporting evidence" 30 to
determine whether there is probable cause to issue a warrant of arrest. At
this stage, a judicial determination of probable cause exists.
In People v. Castillo and Mejia,31 this court has stated:
There are two kinds of determination of probable cause: executive and
judicial. The executive determination of probable cause is one made during
preliminary investigation. It is a function that properly pertains to the public
prosecutor who is given a broad discretion to determine whether probable
cause exists and to charge those whom he believes to have committed the
crime as defined by law and thus should be held for trial. Otherwise stated,
such official has the quasi-judicial authority to determine whether or not a
criminal case must be filed in court. Whether or not that function has been
correctly discharged by the public prosecutor, i.e., whether or not he has
made a correct ascertainment of the existence of probable cause in a case,
is a matter that the trial court itself does not and may not be compelled to
pass upon.
The judicial determination of probable cause, on the other hand, is one made
by the judge to ascertain whether a warrant of arrest should be issued
against the accused. The judge must satisfy himself that based on the
evidence submitted, there is necessity for placing the accused under custody
in order not to frustrate the ends of justice. If the judge finds no probable
cause, the judge cannot be forced to issue the arrest warrant. 32
The difference is clear: The executive determination of probable cause
concerns itself with whether there is enough evidence to support an
Information being filed. The judicial determination of probable cause, on the

other hand, determines whether a warrant of arrest should be issued. In


People v. Inting:33

proper scheme of things" in our criminal justice system should be clearly


understood.

x x x Judges and Prosecutors alike should distinguish the preliminary inquiry


which determines probable cause for the issuance of a warrant of arrest from
the preliminary investigation proper which ascertains whether the offender
should be held for trial or released. Even if the two inquiries are conducted in
the course of one and the same proceeding, there should be no confusion
about the objectives. The determination of probable cause for the warrant of
arrest is made by the Judge. The preliminary investigation properwhether
or not there is reasonable ground to believe that the accused is guilty of the
offense charged and, therefore, whether or not he should be subjected to the
expense, rigors and embarrassment of trialis the function of the
Prosecutor.34 (Emphasis supplied)

The rights of the people from what could sometimes be an "oppressive"


exercise of government prosecutorial powers do need to be protected when
circumstances so require. But just as we recognize this need, we also
acknowledge that the State must likewise be accorded due process. Thus,
when there is no showing of nefarious irregularity or manifest error in the
performance of a public prosecutors duties, courts ought to refrain from
interfering with such lawfully and judicially mandated duties.

While it is within the trial courts discretion to make an independent


assessment of the evidence on hand, it is only for the purpose of determining
whether a warrant of arrest should be issued. The judge does not act as an
appellate court of the prosecutor and has no capacity to review the
prosecutors determination of probable cause; rather, the judge makes a
determination of probable cause independent of the prosecutors finding.
People v. Court of Appeals and Jonathan Cerbo 35 discussed the rationale. In
that case, Jonathan Cerbo allegedly shot Rosalinda Dy in the presence of his
father, Billy Cerbo. An information for murder was filed against Jonathan
Cerbo. The daughter of Rosalinda Dy, as private complainant, executed a
complaint-affidavit charging Billy Cerbo with conspiracy. The prosecutor then
filed a motion to amend the information, which was granted by the court. The
information was then amended to include Billy Cerbo as one of the accused,
and a warrant of arrest was issued against him.
Billy Cerbo filed a motion to quash the warrant arguing that it was issued
without probable cause. The trial court granted this motion, recalled the
warrant, and dismissed the case against him. The Court of Appeals affirmed
this dismissal. This court, however, reversed the Court of Appeals and
ordered the reinstatement of the amended information against Billy Cerbo,
stating that:
In granting this petition, we are not prejudging the criminal case or the guilt or
innocence of Private Respondent Billy Cerbo. We are simply saying that, as
a general rule, if the information is valid on its face and there is no showing of
manifest error, grave abuse of discretion or prejudice on the part of the public
prosecutor, courts should not dismiss it for want of evidence, because
evidentiary matters should be presented and heard during the trial. The
functions and duties of both the trial court and the public prosecutor in "the

In any case, if there was palpable error or grave abuse of discretion in the
public prosecutors finding of probable cause, the accused can appeal such
finding to the justice secretary and move for the deferment or suspension of
the proceedings until such appeal is resolved.36 (Emphasis supplied)
In this case, the resolution dated March 4, 2008 of Prosecutor Rey F.
Delgado found that the facts and evidence were "sufficient to warrant the
indictment of [petitioner] x x x." 37 There was nothing in his resolution which
showed that he issued it beyond the discretion granted to him by law and
jurisprudence.
While the information filed by Prosecutor Delgado was valid, Judge CapcoUmali still had the discretion to make her own finding of whether probable
cause existed to order the arrest of the accused and proceed with trial.
Jurisdiction over an accused is acquired when the warrant of arrest is served.
Absent this, the court cannot hold the accused for arraignment and trial.
Article III, Section 2 of the Constitution states:
The right of the people to be secure in their persons, houses, papers, and
effects against unreasonable searches and seizures of whatever nature and
for any purpose shall be inviolable, and no search warrant or warrant of
arrest shall issue except upon probable cause to be determined personally
by the judge after examination under oath or affirmation of the complainant
and the witnesses he may produce, and particularly describing the place to
be searched and the persons or things to be seized.
The Constitution prohibits the issuance of search warrants or warrants of
arrest where the judge has not personally determined the existence of
probable cause. The phrase "upon probable cause to be determined
personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce" allows a determination of
probable cause by the judge ex parte.

For this reason, Section 6, paragraph (a) of Rule 112 of the Rules on
Criminal Procedure mandates the judge to "immediately dismiss the case if
the evidence on record fails to establish probable cause." Section 6,
paragraph (a) of Rule 112 reads:
Section 6. When warrant of arrest may issue. (a) By the Regional Trial
Court. Within ten (10) days from the filing of the complaint or information,
the judge shall personally evaluate the resolution of the prosecutor and its
supporting evidence. He may immediately dismiss the case if the evidence
on record clearly fails to establish probable cause. If he finds probable cause,
he shall issue a warrant of arrest, or a commitment order if the accused has
already been arrested pursuant to a warrant issued by the judge who
conducted the preliminary investigation or when the complaint or information
was filed pursuant to section 7 of this Rule. In case of doubt on the existence
of probable cause, the judge may order the prosecutor to present additional
evidence within five (5) days from notice and the issue must be resolved by
the court within thirty (30) days from the filing of the complaint of information.
In People v. Hon. Yadao:38
Section 6, Rule 112 of the Rules of Court gives the trial court three options
upon the filing of the criminal information: (1) dismiss the case if the evidence
on record clearly failed to establish probable cause; (2) issue a warrant of
arrest if it finds probable cause; and (3) order the prosecutor to present
additional evidence within five days from notice in case of doubt as to the
existence of probable cause.
But the option to order the prosecutor to present additional evidence is not
mandatory.1wphi1 The courts first option under the above is for it to
"immediately dismiss the case if the evidence on record clearly fails to
establish probable cause." That is the situation here: the evidence on record
clearly
fails
to
establish
probable
cause
against
the
respondents.39 (Emphasis supplied)
It is also settled that "once a complaint or information is filed in court, any
disposition of the case, whether as to its dismissal or the conviction or the
acquittal of the accused, rests in the sound discretion of the court." 40
In this case, Judge Capco-Umali made an independent assessment of the
evidence on record and concluded that "the evidence adduced does not
support a finding of probable cause for the offenses of qualified theft and
estafa."41 Specifically, she found that Juno Cars "failed to prove by competent
evidence"42 that the vehicles alleged to have been pilfered by Alfredo were
lawfully possessed or owned by them, or that these vehicles were received
by Alfredo, to be able to substantiate the charge of qualified theft. She also

found that the complaint "[did] not state with particularity the exact value of
the alleged office files or their valuation purportedly have been removed,
concealed or destroyed by the accused," 43 which she found crucial to the
prosecution of the crime of estafa under Article 315, fourth paragraph, no.
3(c) of the Revised Penal Code. She also noted that:
x x x As a matter of fact, this court had even ordered that this case be set for
clarificatory hearing to clear out essential matters pertinent to the offense
charged and even directed the private complainant to bring documents
relative to the same/payment as well as affidavit of witnesses/buyers with the
end view of satisfying itself that indeed probable cause exists to commit the
present case which private complainant failed to do. 44
Accordingly, with the present laws and jurisprudence on the matter, Judge
Capco-Umali correctly dismissed the case against Alfredo.
Although jurisprudence and procedural rules allow it, a judge must always
proceed with caution in dismissing cases due to lack of probable cause,
considering the preliminary nature of the evidence before it. It is only when
he or she finds that the evidence on hand absolutely fails to support a finding
of probable cause that he or she can dismiss the case. On the other hand, if
a judge finds probable cause, he or she must not hesitate to proceed with
arraignment and trial in order that justice may be served.
WHEREFORE, the petition is GRANTED. The decision dated January 14,
2011 of the Court of Appeals in CA-G.R. SP. No. 110774 is REVERSED and
SET ASIDE. Criminal Case Nos. MC08-11604-05 against Alfredo C.
Mendoza are DISMISSED.
SO ORDERED.
MARVIC MARIO VICTOR F. LEONEN
Associate Justice
WE CONCUR:
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson
DIOSDADO M. PERALTA
Associate Justice

ROBERTO A. ABAD
Associate Justice

JOSE CATRAL MENDOZA


Associate Justice

Id.

10

Id. at 65-67.

11

Id. at 68-69.

12

Id. at 70-79.

13

Id. at 35.

14

Id. at 35-36.

15

Id. at 80-85.

ATTE S TATI O N
I attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court's Division.
PRESBITERO J. VELASCO, JR.
Associate Justice
Chairperson, Third Division
C E R TI F I CATI O N
16

Pursuant to Section 13, Article VIII of the Constitution and the Division
Chairperson's Attestation, I certify that the conclusions in the above Decision
had been reached in consultation before the case was assigned to the writer
of the opinion of the Court's Division.

Id. at 84.

17

Id. at 87.

18

Id. at 36.

MARIA LOURDES P. A. SERENO


Chief Justice

19

Footnotes
1

Rollo, pp. 3-31.

Id. at 33-44.

Id. at 80.

Id.

Id. at 81-82.

Id. at 82.

Id. at 60-64.

Id. at 35.

Id. at 33-44, Court of Appeals decision, per Tenth Division, penned


by J. Hakim S. Abdulwahid and concurred in by J. Ricardo R.
Rosario and J. Samuel H. Gaerlan.
20

Id. at 44.

21

Id. at 15.

22

Id.

23

Id. at 130-136.

24

Id. at 146-161.

25

Id. at 163-166.

26

Id. at 163.

27

REVISED PENAL CODE, Art. 310. Qualified Theft. The crime of


theft shall be punished by the penalties next higher in degree than
those respectively specified in the next preceding article, if
committed by a domestic servant, or with grave abuse of confidence,

or if the property stolen is large cattle or consists of coconuts, or fish


taken from a fishpond or fishery.

36

Id. at 420-421.

37

Rollo, p. 62.

28

REVISED PENAL CODE, Art. 315. Swindling (Estafa). Any


person who shall defraud another by any of the means mentioned
herein below shall be punished by:

38

G.R. Nos. 162144-54, November 13, 2012, 685 SCRA 264 [Per J.
Abad, En Banc].

xxxx

39

4th. By arresto mayor in its medium and maximum periods, if


such amount does not exceed 200 pesos, provided that in
the four cases mentioned, the fraud be committed by any of
the following means:

40

xxxx

41

Rollo, p. 84.

3. Through any of the following fraudulent means:

42

Id.

xxxx

43

Id.

(c) By removing, concealing or destroying, in whole or in


part, any court record, office files, document or any other
papers.

44

Id. at 84-85.

29

See Leviste v. Alameda, G.R. No. 182677, August 3, 2010, 626


SCRA 575, 598 [Per J. Carpio-Morales, Third Division].
30

RULES ON CRIMINAL PROCEDURE, Rule 112, sec. 6.

31

607 Phil. 754 (2009) [Per J. Quisumbing, Second Division].

32

Id. at 764-765, citing Paderanga v. Drilon, 273 Phil. 290, 296


(1991) [Per J. Regalado, En Banc]; Roberts, Jr. v. Court of Appeals,
324 Phil. 568, 620-621 (1996) [Per J. Davide, Jr., En Banc]; Ho v.
People, 345 Phil. 597, 611 (1997) [Per J. Panganiban, En Banc].
33

G.R. No. 88919, July 25, 1990, 187 SCRA 788 [Per J. Gutierrez,
Jr., En Banc].
34

Id. at 792-793.

35

361 Phil. 401 (1999) [Per J. Panganiban, Third Division].

Id. at 287-288.

Leviste v. Alameda, G.R. No. 182677, August 3, 2010, 626 SCRA


575, 598 [Per J. Carpio-Morales, Third Division], citing Galvez v.
Court of Appeals, G.R. No. 114046, October 24, 1994, 237 SCRA
685 [Per J. Regalado, Second Division].