Republic of the Philippines

REGIONAL TRIAL COURT

7th Judicial Region
Branch __
Argao, Cebu

ANSELMA VOLANTE, Civil Case No. _______________________

Petitioner, For: PETITION FOR CERTIORARI
UNDER RULE 65 OF THE RULES OF
-versus- COURT

HON. HAIDE P. ACUNA, in her MTC Crim. Case No. 1940

capacity as the Presiding Judge of the For: Malicious Mischief
Municipal Trial Court of Sibonga,
Cebu, Josefa Rama and the People of
the Philippines,
Respondents.
x----------------------------------------/

PETITION

COMES NOW, the Petitioner, by the undersigned counsel, unto this

Honorable Court, most respectfully states that-

This is a special civil action for Certiorari under Rule 65 of the Rules of
Court which seeks to annul and reverse the Order of the Municipal Trial Court
Sibonga dated 2 February 2021, dismissing Criminal Case No. 1940, for
Malicious Mischief without going the case to trial.

PREFATORY STATEMENT

The instant case has been ordered dismissed by the lower court
pursuant to Sec. 13 of the Rules of Summary Procedure which states as
follows:

“Sec. 13. Arraignment and Trial.- Should the court, upon a consideration
of the complaint or information and the affidavits submitted by both parties,

find no cause or ground to hold the accused for trial, it shall order the dismissal
of the case; otherwise, the court shall set the case for arraignment and trial.”

In the case at bar, the lower court could not dismiss the case for the
reason that herein petitioner has legal grounds thereof, so much so that the
documents submitted by the accused Josefa Rama contradicts her allegations.

“No person shall be deprived of life, liberty, or property without due

process of law, nor shall any person be denied the equal protection of the laws.”
(Sec. 1, Article III, 1987 Constitution). This is a basic provision of law where
all rights come from. It is on this bedrock provision of the Constitution that
this petition filed before this Honorable Court is grounded on.

STATEMENT OF MATERIAL DATES

On 16 December 2020, the lower court issued an Order dismissing the

case pursuant to Section 13 of the Revised Rule on Summary Procedure after
finding that there is no ground to hold the accused for trial; copy of the Order
is hereto attached and marked as Annex “A” and made as an integral part
hereof;

On 12 January 2021, herein petitioner filed her Motion for

Reconsideration, through electronic mail, which was thereafter denied by the
court and the Order denying the same was received by the petitioner, also
through electronic mail, on 2 February 2021; copy of the said Order is hereto
attached and marked as Annex “B” and made an integral part hereof.

Under Section 4, Rule 65 of the Rules of Court:

Section 4. When and where petition filed. — The petition shall be filed not later
than sixty (60) days from notice of the judgment, order or resolution. In case a
motion for reconsideration or new trial is timely filed, whether such motion is
required or not, the sixty (60) day period shall be counted from notice of the
denial of said motion.

Counting sixty (60) days from the date of denial of the Motion for
Reconsideration, the petitioner has until April 3, 2021 to file this instant
petition.

Thus, this petition is timely filed.

THE PARTIES

Petitioner ANSELMA R. VOLANTE is of legal age, Filipino, married and a

resident of Brgy. Abugon , Sibonga, Cebu where she could be served with
notices and processes of this Honorable Court. For this purpose, she may be
served with judicial notices through the address of her counsel as indicated
hereunder.

Public Respondent Hon. Haide P. Acuna is the Presiding Judge of the

Municipal Trial Court of Sibonga. He may be served with notices and process
of this Honorable Court at the Municipal Trial Court of Sibonga, Cebu.

Respondent, People of the Philippines, is represented by Office of the

Solicitor General, with office address at 134, Amorsolo Street, Legaspi Village,
Makati City, Manila where it may be served with judicial notices.

Respondent Josefa Rama is also a Filipino, of legal age, married and with
address at Brgy. Abugon, Sibonga, Cebu where she could also be served with
judicial notices; however, for this purpose, she may be served with the same
through the address of her counsel at Public Attorney’s Office-Argao District,
Argao, Cebu.

STATEMENT OF MATTERS INVOLVED

Respondent Josefa Rama was charged for violation of Article 327,

Malicious Mischief, under the Revised Penal Code before the Municipal Trial
Court of Sibonga and was docketed as Criminal Case No. 1940.

On 16 December 2020, the respondent lower court dismissed the case

on the ground that Lot No. 1351 is co-owned by the siblings, including herein
respondent Josefa Rama and that the latter has the improbability to destroy
the fence using hammer and iron bar due to her age and cancer diagnosis.
Thereafter, petitioner filed a Motion for Reconsideration within the
reglamentary period but the same was denied by the lower court on 2
February 2021.

GROUNDS FOR THE ALLOWANCE OF THE PETITION

1. Public Respondent Judge Haide P. Acuna, in the exercise of

her judicial functions, has acted without or in excess of her

2. jurisdiction, or with grave abuse of discretion amounting to

lack or excess of jurisdiction in dismissing the case for
malicious mischief pending before her sala, and there is no
appeal, or any plain, speedy and adequate remedy in the
ordinary course of law;

3. Public respondent Judge Haide P. Acuna has acted without or

in excess of her jurisdiction, or with grave abuse of discretion
amounting to lack or excess of jurisdiction when she failed to
consider the vital arguments of the complainant-petitioner in
the same case.

ISSUES

WHETHER OR NOT THE LOWER COURT, THROUGH THE

PRESIDING JUDGE, HAS ACTED WITHOUT OR IN EXCESS OF
HER JURISDICTION OR WITH GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OF JURISDICTION IN DISMISSING THE
CRIMINAL CASE AGAINST RESPONDENT JOSEFA RAMA.
 ARGUMENTS AND DISCUSSIONS

PRESIDING JUDGE HAIDE P. ACUNA

COMMITTED GRAVE ABUSE OF
DISCRETION WHEN SHE DISMISSED
THE CASE DUE TO LACK OF
PROBABLE CAUSE.

The petition is anchored on the dismissal of Criminal Case No. 1940 for
Malicious Mischief which was filed before the Municipal Trial Court of
Sibonga, Cebu. After both parties have submitted their respective affidavits
and counter-affidavits, the lower court, through Presiding Judge Acuna,
dismissed the case pursuant to Sec. 13 of the Rules on Summary Procedure
which states:

“Sec. 13. Arraignment and Trial.- Should the court, upon a

consideration of the complaint or information and the affidavits
submitted by both parties, find no cause or ground to hold the
accused for trial, it shall order the dismissal of the case; otherwise,
the court shall set the case for arraignment and trial.”

True, the above-cited provision applies should the same be really

applicable, however, in the case at bar, there is no reason for the court to
dismiss the case because of the following—

1. The issue in this case is not the property which is co-owned by the
petitioner and the private respondent, Josefa Rama. It is worthy to note that
the issue here is the fence which was deliberately destroyed by the private
respondent. Article 327 of the Penal Code provides "Any person who shall
deliberately cause to the property of another any damage not
falling within the terms of the next preceding chapter, shall be guilty
of malicious mischief.”

To successfully make a person liable for malicious mischief, the

following elements must be proved: 1) that the offender deliberately caused

damage to the property of another; 2) that such act does not

constitute arson or other crimes involving destruction; 3) that the act of
damaging another's property be committed.
 In the case at bar, the fence which was deliberately destroyed by the
private respondent does not anymore belong to the latter but to the petitioner
who spent money for the fencing of the property with the use of hammer and
iron bar. There was wilful damaging of the fence erected and spent by the
petitioner, obviously, for the sake of causing damage die to hate, revenge or
other evil motive. There was intent and specific act by the private respondent
to cause damage.

Petitioner’s next argument is the alleged health of the private

respondent, Josefa Rama, which the lower court said that it would be
improbable for Josefa Rama to cause damage the fence put up by the
petitioner. The lower court concluded that age and health of the private
respondent has made her impossible to perform the crime. Again, in an
answer to question number 4 of the counter-affidavit of the private
respondent, to wit:

“A4. It is a big fat lie, Attorney. It would be impossible for me to

personally do the destruction of the alleged fence considering that I am almost
70 years old added to the fact that I am suffering from breast cancer.”

The petitioner would like to allege that the private respondent is only
66 years old. Worse, she alleged that she is suffering from breast cancer when
she is not.

In the Vehement Opposition and Comment to the Private Prosecution’s

Motion for Reconsideration of the Order dated December 20, 2020 Dismissing
the Instant Case for Lack of Probable Cause, the private respondent attached
the Medical Certificate of the Josefa Rama as proof of her alleged cancer.
However, by looking at it, the findings are as follows:

“Breast composition: There are scattered areas of fibrograndular density

(category b)

Present examination still shows no dominant mass, focal asymmetry or

architectural distortion with both breasts.
 The previously described focal asymmetry in the subareolar right breast is
no longer appreciated.

Stable bilateral benign vascular calcifications are again seen. There are
no suspicious calcifications observed.

The axillary regions show normal lymph nodes. No skin thickening or

nipple retraction is demonstrated.

IMPRESSION: ESSENTIALLY STABLE BENIGN VASCULAR

CALCIFICATIONS IN BOTH BREASTS.

NO MAMMOGRAPHIC EVIDENCE OF MALIGNANCY IN

BOTH BREASTS.

As per website www.breastcancer.org, “Benign (noncancerous) finding:

means that there has been a finding, such as benign calcifications or
fibroadenoma, which is not cancerous.” Benign is totally different from
malignant. The Medical Certificate submitted by Josefa Rama clearly
disproves her claim that she has cancer.

Further, “scattered fibroglandular tissue” refers to the density and

composition of the breasts. A woman with scattered fibroglandular breast
tissue has breasts made up mostly of non-dense tissue with some areas of
dense tissue. About 40 percent of women have this type of breast tissue,
according to www.breastcancer.org.

Dismissing the case without going into trial despite the existence of probable
cause is grave abuse of discretion on the part of the presiding judge, with all
due respect.

It is worthy to note that petitioner, in her Reply to Vehement Opposition

of the Accused with Motion for Subpoena Duces Tecum/Ad Testificandum, the
lower did not bother to hear on the latter motion so that the petitioner would
have the chance to conduct cross-examination upon the doctor who made the
diagnosis.

Attached hereto are the following:

1. Annex “C” is the Certified true copy of the complaint and its
supporting documents;

2. Annex “C-1” is the Certified true copy of the affidavit of petitioner,

Anselma Rama Bolante;

3. Annex “C-2” is the Certified true copy of the affidavit of Rosenda

Rama Gemperoa, a witness;

4. Annex “C-3” is the certified true copy of the counter-affidavit of the

private respondent, Josefa Rama;

5. Annex “D” is the certified true copy of the Motion for Reconsideration
of the petitioner;

6. Annex “E” is the certified true copy of the Vehement Opposition and
Comment to the Private Prosecution’s Motion for Reconsideration of
the Order dated December 20, 2020 Dismissing the Instant Case for
Lack of Probable Cause; and

7. Annex “F is the Reply to Vehement Opposition of the Accused with

Motion for Subpeona Duces Tecum/Ad Testificandum.

Petitioner prays judgment in her favor.

 WHEREFORE, premises considered, it is most respectfully prayed of this
Honorable Regional Trial Court that the previous Order dated December 16,
2020 and Order dated February 2, 2021 be REVERSED and SET ASIDE, and a
new Order or Decision be entered remanding this case back to the Municipal
Trial Court of Sibonga for trial.

Other just and equitable relief is also prayed for by the petitioner.

Cebu City, Philippines. 5 March 2021.

ATTY. RODULFO D. DACALOS, JR.

For the Petitioner
Roll No. 53243
G/F Albulario Building 2, RMD Diamond Marine Services
Gen. Maxilom Ave., Kamputhaw, Cebu City
Mobile No. 0917.776.0848
E-mail Address: rdacalosjr@gmail.com
PTR No. 400935, Jan. 10, 2021, Cebu City
IBP OR No. 22134, Jan. 10, 2021, Cebu City Chapter
MCLE Compliance No. VI-0023574 (Aug. 22, 2019)

Copy furnished:

Atty. Marvin M. Vallarta

PAO-Argao District Office
Argao Cebu
E-mail Address: argaodistrict.paoreports@gmail.com

Pros. Ma. Luisa B. Ong

Public Prosecutor
DOJ Building, M. Velez Street
Guadalupe, Cebu City
Email Address: oppcebu@yahoo.com

Municipal Trial Court of Sibonga

Sibonga, Cebu
Email Address: mtc2sbn000@judiciary.gov.ph

Copies of the petition have been served through electronic mail due to
distance to effect personal service. The Affidavit of Service is attached to the
hard copy which is separately mailed by the undersigned.
RDDACALOS, JR.