Rolando Tan, Elena Tan and Lamberto Tan vs. CA, Hon. Hermes B.

Montero

in his capacity as Assistant Provincial Prosecutor,

and the People of the Philippines
G.R. No. 164966, June 8, 2007

FACTS:
1. Spouses Go (Roderick and Grace) proposed a business transaction to
James Go wherein Sps. Go would borrow cash from King in exchange for
postdated checks to be issued by Roderick Go.
2. King was persuaded to agree to the business proposal upon the assurance
of Roderick Gos parents and brother.
3. Thereafter, Sps. Go together with Rolando and Elena Tan asked an
additional P100M from King for the renovation of their movie house in
Butuan City, but King could only give them P40M.
4. In June 2002, Roderick Go had a meeting with King where Roderick Go
allegedly attacked King with a box cutter and told him that all the checks
that he issued would be dishonored and for this reason he had to injure,
kidnap and kill him. This is the subject of another criminal complaint.
5. Checks dated June 21, 23 and 24, 2002 issued by Roderick Go were
dishonored for having been drawn against insufficient funds.
6. King then filed a complaint for violation of BP Blg. 22 and Estafa against
the Gos and the Tans.
7. During the preliminary investigation conducted by Montero, he found
probable cause for violation of BP Blg. 22 and Estafa subsequently filed
the informations.
8. Petitioners Tan filed a Petition for Prohibition and Injunction with
Preliminary Injunction and Prayer for Temporary Restraining Order before
the CA in order to restrain the trial court from proceeding with the subject
criminal cases against them and prayed that the same be dismissed.
9. CA dismissed the petition for lack of merit.
10. Motion for reconsideration was also denied. Thus, the Tans filed this
petition for review on certiorari.
ISSUE: WON resort to the extraordinary remedy of prohibition was proper

RATIO/HELD: NO, prohibition was not proper.

1. A writ of prohibition is an extraordinary remedy to prevent the unlawful
and oppressive exercise of legal authority and to provide for a fair and
orderly administration of justice. It is available only if there is no appeal or
any plain, speedy and adequate remedy in the ordinary course of law and
the proceedings are done without or in excess of jurisdiction or with grave
abuse of discretion.
2. The Tans had a plain, speedy and adequate remedy available. They had
chance to move for reconsideration or appeal the findings of probable
cause of Montero to the Secretary of Justice before the arraignment but
they did not avail of such.
3. The Tans were also raising factual and legal bases of the findings of
probable cause in their petition for prohibition, which is not proper
because only errors of jurisdiction can be corrected in a petition for
prohibition, not errors of judgment.

Certiorari or prohibition is not a

substitute for lost appeal. The proper remedy would have been a timely
filed petition for review to the Secretary of Justice. However, petitioners
through their own fault, failed to do so.
4. The Tans also violated the rule against forum shopping, which justifies the
denial of this petition. When Kings Motion for Reconsideration was
granted by the Secretary of Justice after informations against the
petitioners for Estafa were withdrawn, the Tans also filed a motion for
reconsideration where they actively litigated the issues regarding
the factual and legal bases of the finding of probable cause against them.
- This is clearly a distinct course of action from the Tans petition for
review of CAs decision dismissing their petition for prohibition, which
was to precisely restrain the trial court from proceeding with the
criminal cases against them.
DISPOSITION: WHEREFORE, the petition is DENIED. Decision of the Court of
Appeals dated November 24, 2003 in CA-G.R. SP No. 74450 dismissing

petitioners petition for prohibition, and the Resolution dated July 14,
2004 denying reconsideration thereof, are AFFIRMED.